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filed: January 28, 1983.


No. 928 Philadelphia, 1981, No. 221 Philadelphia, 1982, Appeal from the Orders of the Court of Common Pleas of Montgomery County, Pennsylvania, Orphans' Division at No. 81,332.


James R. Beam, Norristown, for appellants.

Stephen M. Cushmore, Norristown, for participating parties.

Hester, Wickersham and Popovich, JJ.

Author: Popovich

[ 311 Pa. Super. Page 236]

This case involves consolidated appeals from the Orders of the Court of Common Pleas of Montgomery County, Orphans' Court Division, concerning the validity of the Will of Margaret C. Agostini, who died at the age of 82, and the proposed dispersement of estate assets (valued at approximately $140,000.00) in accordance therewith. We affirm.

Procedurally, we observe that initially the appellants, Maria Agostini Leps and Marco Agostini, sought to have the Will of the decedent invalidated. After the court en banc dismissed their exceptions to the trial court's Decree Nisi upholding the validity of the testamentary document, an appeal, docketed at No. 928 Philadelphia 1981, was filed with this Court. During the pendency of the aforementioned appeal, the executors-appellees, Louis Agostini and Helen Mickel, petitioned the trial court to issue an order directing a bank to release estate funds deposited with the institution. An order was so entered, exceptions thereto were dismissed by a court en banc and an appeal, docketed at No. 221 Philadelphia 1982, was filed with this Court. On March 9, 1982, this Court consolidated the two cases for argument and appeal purposes.

Since both appeals question the chancellor's findings of fact and conclusions of law, approved by a court en banc, the standard of review consists of the following:

"'[T]he findings of fact of the [c]hancellor who heard the testimony without a jury, approved by a court en banc,

[ 311 Pa. Super. Page 237]

    are entitled to the weight of a jury's verdict; that such findings are controlling and that the court's decree should not be reversed unless it appears that the court abused its discretion or that the court's findings lack evidentiary support or that the court capriciously disbelieved the evidence.' The chancellor's findings are especially binding where they are based upon the credibility of the witnesses." (Citations omitted) Hankin v. Hankin, 279 Pa. Super. 179, 196-197, 420 A.2d 1090, 1099 (1980).

The caveat to the preceding was reiterated most recently by this Court in the case of In re Hanley Trust, 307 Pa. Super. 153, 163, 452 A.2d 1360, 1365 (1982):

"'"However, the chancellor's 'conclusions whether of law or ultimate fact are no more than his reasoning from the underlying facts and are reviewable', especially 'where the underlying facts themselves are not in esse but are matters of inference and deduction'. [Citing cases.] Furthermore, a chancellor's findings of fact, even though approved by a court en banc, need not be accepted as conclusive if there is no evidence to support them or if they are based on an inference erroneously taken [citing cases] or where the evidence, in order to prevail, must be clear, precise and indubitable or must meet some other prescribed standard [citing a case]."'" (Citations omitted) Id., 307 Pa. Superior at 163, 452 A.2d at 1365. Accord McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982); Easton Theatres, Inc. v. Wells Fargo Land and Mortgage Co., 265 Pa. Super. 334, 401 A.2d 1333 (1979).

Although both appeals deal with the same parties and subject matter (decedent's Will), for ease of discussion we shall treat each case in seriatim.

Appeal at No. 928 Philadelphia 1981

The background and circumstances giving rise to this particular appeal, which appear in part in the Opinion of the court below, are as follows: In 1951, the appellants (Maria and Marco) were adopted by the decedent and her husband.

[ 311 Pa. Super. Page 238]

Maria lived with the decedent until 1967, thereafter she was married and moved to Oreland, Pennsylvania. Marco, in 1956 and at the age of 18, left home to join the army. Decedent, afflicted with diabetes, degenerative arthritis and gout, moved to Florida in 1971 after her husband died. During her stay in Florida, decedent was cared for by a niece, Ann Maestri. In 1978, decedent returned to this Commonwealth, stayed with Maria for four or five weeks and then moved into an apartment of her own. Shortly thereafter, decedent met with her attorney (Timothy Timoney) to arrange to change her Will -- it is to be noted that while in Florida, decedent changed her Will seven times. In accordance with the wishes of the decedent, counsel drafted the testamentary document and had it executed on December 8, 1978. One reason for this latest revision was to "disinherit" Ann Maestri. Decedent felt that Ms. Maestri had not done enough for her to warrant what was provided for the niece in her Will.

On March 29, 1979, decedent sustained burns to her feet while attempting to use the bathtub. It was not until the next day, when the daughter came to visit and observed the injury, that a Dr. Borska was contacted. An examination revealed that the decedent had incurred first and second degree burns that ordinarily would have been considered fairly minor. However, since the decedent was a known diabetic suffering from arteriosclerotic cardio-vascular disease, the threat of infection was serious. Consequently, when the prescribed medications did not improve the decedent's condition, Dr. Borska admitted her to the hospital a week after the accident.

During the decedent's stay in the isolation unit, she remarked to an attending nurse that she was disenchanted with her daughter, Maria. This same nurse also testified that decedent, on occasion, would become perturbed and "yell" at Maria.

On April 12, the decedent was moved to a semi-private room and, for the first time, was visited by Rena McHugh (Rena), her niece. During the visit, decedent asked Rena to

[ 311 Pa. Super. Page 239]

    contact her nephew, appellee-Louis Agostini (Louis), in Scranton, Pennsylvania regarding the transfer of her monies to a bank there. Louis was contacted by Rena and decedent sent him a letter dated May 4, 1979, wherein she wrote: "I want everything done properly because these two [-- Maria and Marco --] are going to get a shock they won't forget." However, the transfer was never effectuated, apparently because a bank official told Louis that the plan was not feasible.

On May 15, decedent was advised that the injury she sustained would require amputation of a toe. Over the next few days, decedent requested that the surgery be postponed until she could speak with her attorney. In fact, at one point, she asked to be released so it could not be said later that her hospitalization was indicative of her incompetency in matters dealing with her property. Decedent's physician dispelled such notions by assuring her that she was fully alert, oriented and in possession of her faculties. This evaluation of decedent's competency was corroborated by the attending nurse from the isolation unit, to which decedent was transferred on May 18. According to the nurse, confusion on decedent's part did not manifest itself until May 29.

On the evening of May 18, decedent summoned Attorney Timoney and the two spoke for 1 1/2 hours about changing her Will of December 8, 1978.*fn1 According to counsel, decedent's primary reason for the revision was to have Maria treated differently. Decedent recounted how she was dissatisfied with the manner in which Maria had cared for her after the accident; that an argument had ensued between the two in which Maria had said things that she would never forget.

Counsel, after reviewing the entire dispositive scheme, felt that the proposed distribution appeared to be an "over-reaction" by the decedent to the recent turn of events. She

[ 311 Pa. Super. Page 240]

    refuted this, contending instead that she had expended enough money on her adopted children and that she did not owe them anything. The next day the decedent sent a letter to counsel supplying a beneficiary's address.

On May 21, counsel presented decedent with the revised Will.*fn2 She read the document, paragraph by paragraph, and remarked that she was satisfied with the changes. When counsel again inquired if the instrument and the modifications contained therein were an "overreaction" on her part, decedent answered in the negative. Thus, the Will was executed and witnessed by counsel and a nurse. The following day, decedent had one of her toes removed. Although the attending physician noted in the hospital log that decedent was cheerful the day after the operation, the infection was not arrested and decedent's leg was amputated on May 30, 1979. Her mental condition deteriorated thereafter and she died on July 4.

On appeal, as well as in the proceedings below, appellants allege that the Will of May 21 should be ruled invalid either because: (a) it was the product of an insane delusion which affected testatrix's testamentary capacity; or (b) it was the product of undue influence exerted by Rena McHugh.

We commence our discussion by observing that a Will should not be declared invalid except for compelling reasons. This is premised upon the concern of the law with protecting the testator and the legal objects of his bounty. "'His property is his own, and he can dispose of it as he pleases, in life, and, after death, by means of his will.'" (Citation omitted) In re Duncan's Will, 147 Pa. Super. 133, 136, 23 A.2d 357, 358 (1941). Moreover, a testator with children can disinherit some or all of them for any reason whatsoever; he can give in his lifetime and also by Will all

[ 311 Pa. Super. Page 241]

    of his property to the poor or to any charity he may desire, or he can give it to a friend, or he can prefer one child over all the others. Stated differently, a testator does not have to give any of his property to those he loves or to the relative society believes he should love, and he can give it in such a way that 99 percent of his fellow-citizens believe is foolish, unjust or outrageous. In re Sommerville's Estate, 406 Pa. 207, 225, 177 A.2d 496, 505 (1962). The preceding is in accordance with the established law of Pennsylvania that:

". . . every individual may leave his property by [W]ill to any person, or to any charity, or for any lawful purpose he desires, unless he lacked mental capacity, or the [W]ill was obtained by forgery or fraud or undue influence, or was the product of a so-called insane delusion." In re Johnson's Estate, 370 Pa. 125, 127, 87 A.2d 188, 190 (1952).

Where a Will is drawn by decedent's lawyer and proved by him and the subscribing witnesses, as was the case here, the burden of proving testamentary incapacity*fn3 is upon the contestants, and "that burden can be sustained only by clear and strong or compelling evidence of lack of testamentary capacity or of undue influence . . . ." (Citation omitted) In re Higbee's Will, 365 Pa. 381, 382, 75 A.2d 599, 600 (1950); see also In re Estate of Hastings, 479 Pa. 122, 387 A.2d 865 (1978). Similarly, the burden of proving an insane delusion is on the person who asserts it. In re Leedom's Estate, 347 Pa. 180, 32 A.2d 3 (1943).

It would not be presumptuous to note that the formulation of a definition of an insane delusion which covers every possible case is a difficult one. Nonetheless, a general rule has ...

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