NO. 78 EASTERN DISTRICT APPEAL DOCKET, 1983, Appeal from Order of Superior Court of Pennsylvania, entered March 11, 1983, at No. 2151, Philadelphia 1981 Affirming Orphans' Court En Banc Opinion of Philadelphia Court of Common Pleas, No. 2024 of 1980, Pa. Superior Ct. , 458 A.2d 267 (1983)
Thomas J. Mettee, Philadelphia, for appellant.
J. Brooke Aker, Norristown, for Geo. A. Butler, Jr.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion, in which Larsen, J., joins. Zappala, J., files a dissenting opinion in which McDermott, J., joins.
This is an appeal by allowance from a Superior Court panel's per curiam order, 311 Pa. Super. 602, 458 A.2d 267. The panel affirmed an order of the Orphans' Court Division of the Court of Common Pleas of Philadelphia. Orphans' Court entertained the appeal of George A. Butler, Jr. from a decree of Philadelphia's Register of Wills, reversed the Register and directed him to admit to probate testator Joseph C. Pedrick's September 27, 1979 will written by appellee George A. Butler, Jr. That will distributed the testator's entire estate to appellee and his brother, Edmund B. Butler. It also named appellee executor. The sole question before us is the effect of appellee's conduct as attorney-scrivener-beneficiary on his right to use Orphans' Court process to secure a benefit under the will from conduct which, while not illegal, is not only far below those standards acceptable in the legal profession, but additionally plainly frustrates full equitable inquiry into the substantive issues presented. On the undisputed facts of this case, we hold that appellee, proponent of the September 27, 1979 will, came into equity with unclean hands. Thus, the Orphans' Court erred in granting him affirmative relief. Therefore, we reverse.
The testator, Joseph C. Pedrick, unmarried and childless, one time Clerk of the United States Court of Appeals for the Third Circuit, made at least four wills in his lifetime. The first two were prepared in 1959 and 1972 by his long time personal attorney, appellee's father. In them he left his modest estate to that attorney. In the course of time the father was joined in his legal practice by his sons, this
appellee and Edmund, appellee's brother. Still later, in 1975, death came to the father, but his two sons continued the family law firm. In August of 1977 testator came one day to the law firm his dead friend had founded. That he did so is undisputed. Whether he and appellee quarreled is unclear.*fn1 However, about one month later he sought the services of Thomas Mettee, Esquire. Mr. Mettee prepared a third will in which Mr. Pedrick left his entire estate to a boy he had raised, John Gregory, the appellant here.
On September 27, 1979, Mr. Pedrick, old and sick, lay in St. Mary's Hospital. On that day he learned from his doctor that the cancer which now invaded his prostate, spine, liver and lung would kill him and that he should prepare for death. Along with this terminal process he then suffered from acute congestive heart failure, acute dyspnea, arteriosclerosis, diverticulosis and hernia. These maladies had visited his mind and body with a downhill course over the two years since his last will. Impending death medically confirmed, he asked a nursing sister to call the Butler law firm to see to his will. The nurse, Sister Catherine Joseph, called appellee to come to the hospital. In response to that call appellee went to the hospital although he found it most inconvenient. There, on that day, in that condition, while alone with the son and namesake of his dead friend and attorney, testator signed his fourth will leaving his still modest estate to the scrivener and the scrivener's brother. No witness, disinterested or otherwise, attested that will. That will was not re-executed or republished in the presence of any witness whatsoever when appellee returned alone two days later to have testator name appellee himself beneficiary on testator's federal pension.
The Register had a hearing and denied appellee's will probate. Appellee then sought the aid of the Orphans' Court Division, a court in which equitable principles apply. That court noted appellee's "unfortunate and inexcusable" conduct, but nevertheless opened its halls to aid him because it could not find undue influence under our governing case law. However, it did ignore the maxim that he who asks the sovereign, in its conscience, to support him, must put out hands undirtied in the matter where he seeks the sovereign's aid.
The Code of Professional Conduct to which members of appellee's profession were held at the time he did this "unconscionable" act does not have the force of substantive law. To the extent Estate of Younger, 314 Pa. Superior Ct. 480, 461 A.2d 259 (1983), holds otherwise, it is disapproved. See infra, at 541-542. Thus, appellee's failure to live up to that Code, standing alone, would not invalidate this will. Here, however, we have not only a clear departure from ethical standards, but other conduct which plainly frustrates a determination based on untainted disinterested evidence as to whether this testator freely willed his worldly goods to appellee and appellee's brother. Appellee's failure to secure any witness to what transpired between him and the testator, despite the second opportunity created when he came back two days later to effect a beneficiary change in his own favor, effectively insulated the will he prepared to his own benefit from any acceptable inquiry into the very issue before the court, undue influence. A court applying equitable principles is not open to such a supplicant.
To better understand our holding in this case a full recital of the record on which the lower courts acted is necessary.
Because there were no witnesses to the execution of the will or to the conversation between Mr. Butler and Mr. Pedrick, appellee gave the only testimony as to what took place between him and Mr. Pedrick on September 27. He testified that he and Mr. Pedrick had exchanged pleasantries. He also testified that although Mr. Pedrick did not
know he was George Butler, Mr. Pedrick recognized him as one of the Butler brothers and asked him about his brother's family. N.T. 140-43. He said that Mr. Pedrick then told him he wanted to make a will. When Mr. Butler asked Mr. Pedrick "what do you want in your will," he gestured and said "I want you to take it." Appellee said he replied, ". . . Joe, that's very kind of you, thanks for that, but is there anybody else you want to consider?" The decedent was said to answer, "No. I want you to take it." Appellee continued by stating that he then thanked the testator and asked, ". . . since you are giving it to me . . . would you have any objection if I would divide that and give part of it away to my brother?" The testator is said to have answered that he had no objections and to again have stated that he wanted appellee to have everything. N.T. 143-44. According to Butler, he then asked Mr. Pedrick whom he wanted to name as his executor and Mr. Pedrick replied "you are taking it . . . you act." N.T. 144. Appellee then hand drafted the will and Mr. Pedrick executed it. Appellee said they then talked about mutual friends and appellee's father. By his own admission, appellee made no effort to obtain subscribing witnesses to the will because, in his experience, medical personnel are reluctant to become involved in preparation of such documents and he did not "think" there were any ambulatory patients around.*fn2 N.T. 168-69.
Appellee admitted that he was familiar with Ethical Consideration 5-5 of the Code of Professional Responsibility which provides:
A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or over-reached the
client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client.
Emphasis added. However, he stated that he did not have someone else draft the will because "the call I received from Sister Catherine placed emphasis on the fact that he wanted to see me that night." Most experienced practitioners would find such an explanation not implausible. Indeed, in the case of a testator in extremis, or one who dies without further opportunity to republish his will, the need for immediate preparation may well render execution in this manner wholly ethical, despite a testamentary disposition to the receiver. However, that explanation fails in the face of appellee's own testimony that he returned to the hospital on September 29 to obtain Mr. Pedrick's signature on a change of beneficiary form naming appellee himself beneficiary.*fn3 Although he did not believe that Mr. Pedrick was dying appellee thought it "prudent" to execute the change of beneficiary form immediately because he expected to be away from Philadelphia for six weeks. He excused his failure to have someone else draft a ...