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MATTER ESTATE GUERNIO CONIGLIO (01/27/84)

filed: January 27, 1984.

IN THE MATTER OF THE ESTATE OF GUERNIO CONIGLIO, DECEASED. APPEAL OF JOSEPHINE ROSSETTI


No. 278 PITTSBURGH 1982, Appeal from the Judgment of the Court of Common Pleas of Erie County, Orphans at No. 639 of 1980.

COUNSEL

John Cooper, Erie, for appellant.

Evan Edward Adair, Erie, for appellee.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Spaeth

[ 324 Pa. Super. Page 529]

This is an appeal from a decree admitting to probate a will executed by mark. We affirm.

The decedent, Guernio Coniglio, died on October 10, 1979, survived by two daughters, Josephine Rossetti and Margaret Ambrogio. On November 1, 1979, Mrs. Ambrogio offered for probate what purported to be decedent's will, executed on July 10, 1979, appointing her executrix, and leaving her the entire estate. Mrs. Rossetti challenged the will, claiming undue influence and lack of testamentary

[ 324 Pa. Super. Page 530]

    capacity. When the matter came up for hearing, on August 27, 1981, she withdrew these claims and instead claimed only that the will had not been properly executed. After hearing this claim, the trial court entered a decree upholding the will. Mrs. Rossetti filed exceptions, but on February 18, 1982, the court dismissed the exceptions and made the decree final.

1

The Probate, Estates & Fiduciaries Code provides:

Every will shall be in writing and shall be signed by the testator at the end thereof, subject to the following rules and exceptions:

(2) Signature by mark. If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed in his presence before or after he makes his mark, shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence.

20 Pa.C.S.A. § 2502(2).

This provision is copied from The Wills Act of 1947, 20 P.S. § 180.1 et seq., and its requirements were explained in Rhodes Will, 399 Pa. 476, 160 A.2d 532 (1960), as follows:

To comply with this statutory provision a proponent of this type of will must prove: (1) the inability of the testator to sign his name for any reason; (2) that the mark was made by the testator; (3) that, either before or after the testator made his mark, his name was subscribed; (4) that the subscription of testator's name took place in his presence; (5) that when testator made his mark two witnesses were present; (6) that these witnesses signed their names to the will; (7) that the subscription of the witnesses' names took place in the testator's presence.

Id., 399 Pa. at 479, 160 A.2d 532.

[ 324 Pa. Super. Page 531]

Each of the seven elements thus identified by the Court must be proved by the testimony of two witnesses. Thus, in Rhodes Will the will was held invalid because element (4) was proved by the testimony of only one witness. This "two-witness rule" was embodied in Section 4(a) of The Wills Act of 1947 (". . . no will shall be valid unless proved by the oaths or affirmations of two competent witnesses"), Rhodes Will, supra, and it remains the law, for it has been carried forward as Section 3132 of the Probate, Estates & Fiduciaries Code ("All wills shall be proved by the oaths or affirmations of two competent witnesses . . . ."). And see Comment to Section 2504.1 of the Probate, Estate & Fiduciaries Code (Section 4(a) of Wills Act carried forward in Section 2504 of Code, which was subsequently repealed because it "unnecessarily duplicated Section 3132" of Code).

The two-witness rule does not require that the proof always be by the testimony of two subscribing witnesses; sometimes the proof may be by non -subscribing witnesses. Rhodes Will, supra. However, Section 3132 of the Probate, Estates & Fiduciaries Code provides that

     the proof must be by subscribing witnesses, except to the extent that the register is satisfied that such proof cannot be adduced by the exercise of reasonable diligence.

In summary, then, in deciding whether a will executed by mark may be admitted to probate, three questions must be asked: (1) Has each of the seven elements identified in Rhodes Will been proved? (2) Has each element been proved by the testimony of two witnesses? And (3) if with respect to any element the two witnesses are not both subscribing witnesses, was the register (or trial court, if, as in this case, the register certified the matter to ...


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