Keller v. Lawson
Keller v. Lawson
Opinion of the Court
Opinion by
This appeal is from judgment entered upon a verdict for contestant in an issue devisavit vel non. Susan Mack died January 17,1914, leaving two married daughters who are the parties to this suit.. The paper writing-admitted to probate as her last will is as follows: “I, Susan Mack, of Larksville, make and publish this my last will and testament. It is my will that my entire estate real and personal be given to my daughter, Chid Keller, absolutely. I appoint my said daughter, Chid Keller, to be executrix of this my last will and testament. In witness whereof, I have hereunto set my hand and seal this thirteenth day of August/ A. D. 1913.
“Susan Mack X (seal).
“In presence of
“J. W. Price,
“Horace J. Smith.”
Mrs. Mack, who was possessed of an estate of about thirty thousand dollars, and had'been a woman of strong physical and mental vigor, suffered such a stroke of paralysis about five years prior to her death as to render her thereafter crippled and practically bedfast. The paralysis was of the left side and later the right side also became partially disabled. Mrs. Mack lived to- the age of seventy-three years, the last twenty-six of which Mr. and Mrs. Keller lived with her as one family in a home which she owned. She was a widow and they nursed and cared for her during the long illness above mentioned. The other daughter, Mrs. Lawson, was married and lived away, and, when the will in question was made, was temporarily estranged from her husband and children and living in a manner highly displeasing to her mother. Then, according to- the evidence for proponent, Mrs. Mack decided to change her will and sent
Testimony submitted for contestant included, inter alia, that of Mrs. Mack’s sister, Mrs. Morrish, and her two sons, tending to show that the testatrix had suffered from paralysis for fifteen years and that when the will was made she was entirely paralyzed, except a slight use of her right hand; that they saw her often and tried to converse with her and were unable to do so; that she was in a state of partial coma and had at times a vacant look and was difficult to arouse; that her memory was exceedingly defective and she could not keep a secret; that it was with difficulty she reeognized'her relatives and that she was very childish, grew worse and in their opinion was unable to make a will or do any business. This found some corroboration in evidence of other witnesses, but the majority of the testimony of contestant’s other lay witnesses was of dubious import and of slight value. In addition, three doctors, who never saw Mrs. Mack, were called as experts and answered hypothetical questions. The expert evidence indicates that paralysis
Here the court sits as a chancellor and must consider the entire evidence, and the question is not whether some of the testimony, standing- alone, would justify the verdict, but whether it would considered as a whole: See Kane’s Est., 206 Pa. 204, 207; Roberts v. Clemens, 202 Pa. 198; Mulholland’s Est., 217 Pa. 65; Draper’s Est., 215 Pa. 314; Eddey’s App., 109 Pa. 406; Phillips’ Est,., 244 Pa. 35; Hersperger’s Est., 245 Pa. 569. Starting with the presumption of testamentary capacity and considering the entire case, the verdict is so decidedly
Judgment reversed and issue directed to be set aside, costs to be paid by appellee.
Reference
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- Wills — Testamentary capacity — Issue devisavit vel non — Evidence — Verdict against weight of evidence — Judgment n. o. v. 1. On the trial of an issue devisavit vel non tbe trial judge sits as a chancellor and is not bound by the verdict, and should not sustain it when against the manifest weight of the evidence; but when final judgment is entered on the verdict, the Orphans’ Court is concluded thereby. 2. In such case the trial judge should consider the entire evidence, and the question is not whether some of the testimony, standing alone, would justify the verdict but whether it would considered as a whole. 3. On the trial of an issue devisavit vel non awarded on the ground of alleged testamentary incapacity and undue influence, it appeared that deceased was a woman seventy-three years of age at the time of her death; that during the last twenty-six years of her life she resided with a daughter, the proponent and sole beneficiary under her will; that for the five years prior to her death she was rendered bedfast by paralysis; that another daughter, the contestant, was married, separated from her husband and living in a manner displeasing to her mother; that testatrix sent for- her attorney, who drew her will and it was read to her in the presence of witnesses; that she expressed her satisfaction therewith and sent for her pastor and a neighbor to act as subscribidg witnesses; that owing to her physical disability and at her request the minister wrote her name and then affixed her mark; and that the subscribing witnesses, her family physician, who had attended her for thirty-seven years, and a number of other disinterested witnesses who saw her near the date of the execution of her will, expressed the opinion that she was then of sound mind, memory and understanding. Evidence adduced by the contestant consisted mainly of testimony of a sister of deceased and the sister’s two sons, who testified that at the time of the execution of the will deceased was almost entirely paralyzed; that her memory was exceedingly defective; that she recognized her relatives only with difficulty, was childish, and in their opinion unable to transact business or execute a will; and the testimony of three medical experts, who had never seen the deceased. There was no evidence that deceased was insane or had any delusions. The weight of the evidence was that in spite of her physical weakness and poor eyesight she was able to recognize acquaintances to the end. The jury found that no undue influence had been exercised upon deceased but that the will was invalid for want of testamentary capacity. Held, the finding of testamentary incapacity was against the manifest weight of the evidence and should have been set aside, and judgment entered for the proponent.