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WARREN R. KIRKANDER (03/09/84)

filed: March 9, 1984.

IN RE WARREN R. KIRKANDER, DECEASED. APPEAL OF CAROLYN KIRKANDER AND KAREN KIRKANDER


No. 664 Pittsburgh, 1982, Appeal from the Decree of March 15, 1982 in the Court of Common Pleas of Butler County, Civil Division, No. O.C. 332 of 1978

COUNSEL

Douglas G. Linn, II, Butler, for appellant.

Leo M. Stepanian, Butler, for participating party.

Cavanaugh, Cirillo and Cercone, JJ.

Author: Cercone

[ 326 Pa. Super. Page 383]

This is an appeal from the final decree of the Court of Common Pleas of Butler County, Orphans' Court Division, dismissing the appeal of appellants, Carolyn and Karen Ann Kirkander (contestants) from the probate of the Will of Warren R. Kirkander (decedent). We reverse.

Decedent passed away on August 9, 1976. His will leaving his entire estate to Jean Lam (proponent), was admitted to probate on August 25, 1976. On August 24, 1978 contestants filed an appeal and challenge to the probate of the will alleging that the will was the product of undue influence or in the alternative was a forgery. The Orphans' Court dismissed the appeal finding that the statute of limitations for bringing the challenge was one year, and such period had expired. 20 Pa.C.S.A. ยง 908(a). On appeal to the Supreme Court, the court reversed the decree, finding that while the claim of undue influence was barred by contestants' untimely petition, the claim of fraud was not. In Re Kirkander's Estate, 490 Pa. 49, 415 A.2d 26 (1980).

Upon remand, the Orphans' Court conducted hearings on December 5, 1980 and November 6, 1981. On December 17, 1981, the court entered a decree nisi dismissing appellant's appeal alleging fraud. Exceptions were filed and by order of March 15, 1982 the exceptions were dismissed and the decree nisi was confirmed as a final decree. From such final decree contestants have taken this appeal raising four contentions. Finding merit to the contestant's first contention, we need not address the other issues.*fn1

[ 326 Pa. Super. Page 384]

The contestants argue that the trial court erred, in prohibiting testimony regarding oral declarations of decedent regarding his estate plan uttered shortly before his demise, in refusing testimony concerning decedent's and the proponent's relationship; and in refusing contestants' proffered testimony regarding the proponent's suspicious conduct. The Orphans' Court believed it was limited in conducting the evidentiary hearing to the forgery issue and therefore limited the hearing solely to the execution of the alleged forged will.

The proponent offered testimony from: the scrivener who was also a subscribing witness; the scrivener's secretary, who typed the will and witnessed its execution; the proponent, who went with the testator when he initially discussed the drafting of the will and was present at its execution; and a bank employee who testified that testator was the only person who had access to the safe deposit box containing the will.*fn2 The contestants' case was limited to the cross-examination of the above witnesses and to the testimony of a hand-writing expert. We believe the Orphans' Court placed an unduly restrictive interpretation upon the Supreme Court's directive. That court after upholding the dismissal of the challenge premised on undue influence, remanded for an evidentiary hearing on the allegation of fraud. The only restriction placed on such hearing was that it be "consistent with this opinion."

We recognize that rulings on the admissibility of evidence are within the discretion of the trial judge and will not be reversed absent a manifest abuse of that discretion. Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970); Capan v. Divine Providence ...


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