Glockner v. Glockner
Glockner v. Glockner
Opinion of the Court
Opinion by
This appeal is from the judgment of the Court of Common Pleas, entered on a verdict in an issue devisavit vel non awarded to determine two questions of fact: (1st) Whether decedent executed his last will and testament, a paper subsequently lost, in which he gave $3,000 to his brother and the balance of his estate to his wife, appointing the Braddock Trust Company executor, and, (2d) Whether he died without having revoked this will. Both questions were answered by the jury in the affirmative, and this appeal is by the brother and niece of decedent, his only surviving heirs, who were named as defendants in the issue, the widow being the plaintiff.
Decedent died February 22, 1916. He had been married twenty-eight years and with the assistance of his wife amassed a considerable fortune. He made at least two earlier wills, both of which were destroyed, and, on December 16, 1915, called at the office of the Braddock Trust Company and remarked to William S. Heath, the company’s trust officer, who was also the confidential business advisor of decedent, that “I must get my will fixed up.” On December 31st, he again visited the office of the trust company and, in the course of other business transactions with the trust officer, showed
The witness also testified the will was written about the middle of the book on the right-hand page and occupied probably one-third of the page, was dated December 31, 1915, and signed by decedent at the end. On February 14, 1916, Mrs. Renter, a stepdaughter of deceased, was present at the latter’s residence at a time he was examining papers and books which were on the table before him, and, during the conversation, the witness casually picked up a small red book, opened it at random, and noticed about the middle of the book on the right-hand page what purported to be a will dated December 3Q, or 31, 1915, and signed by deceased, in which his property was disposed of in manner testified to by Heath and as found by the jury. Her description of the book and the contents corresponded with the testimony of Heath and leaves little room to doubt they both saw the same book and writing. During that interview deceased stated to the witness that he had “everything fixed in this book.” After the death of deceased an unsuccessful search was made for the book. The testimony of these two witnesses would seem to fully meet the requirements of the law with reference to the proof of the due execution of the lost will as laid down in Michell v. Low, 213 Pa. 526, and the cases there cited.
The proof of the contents of the will is also ample to sustain the verdict. The witnesses who saw and read it
The remaining question is whether the will was revoked by decedent before his death. As it was last seen in testator’s possession, the presumption is he destroyed it with intention to revoke: Fallen’s Est., 214 Pa. 584. On the night of February 14th, at the time the book containing the will was seen by Mrs. Renter, deceased did not retire with the other members of his family but remained downstairs and left the house, returning the following morning “sick, cold, frozen.” He was put to bed by his daughter and remained there until taken to the hospital on February 20, 1916, where he died of pneumonia on February 22, 1916. The evening previous to being taken to the hospital he referred to the will and contents as he had previously and repeatedly done, clearly indicating the “little red book” to be in existence and that the will had not been revoked up to that time. Subsequently to this he was not out of bed and the following morning his condition was such that he was unable to recognize his wife. It is conceded that from the time of Glockner’s removal to the hospital until his death he remained in an unconscious condition without opportunity to destroy the will. These facts, in connection with other testimony in the case, are sufficient to warrant the con
The judgment is affirmed.
Reference
- Cited By
- 12 cases
- Status
- Published
- Syllabus
- Wills — Probate—Issue devisavit vel non — Lost will — Evidence— Revocation — Presumption. 1. On an issue devisavit vel non where the issues were as to the execution, the contents and the execution of a lost will, a verdict in favor of the proponents, will be sustained, where the witnesses testified that, shortly before the death of .the decedent, the latter showed them separately and at different times a small book in which he had written his will, containing a money legacy to his brother and a gift of the residue to his wife; that both witnesses were familiar with his handwriting and read the will, and agreed as to its contents; that the decedent had used language to them indicating that it was his will; and that other witnesses testified to declarations of testator to the effect that he had distributed his estate in accordance with the provisions of the will written in the small book referred to in the other testimony in the case. 2. In such case the presumption that testator had revoked the will, arising from the fact that it was last seen in his possession, is overcome by testimony in effect that on the evening when the decedent showed one of the witnesses the little book, he did not retire with his family, but left the house, returning the following morning sick, cold and frozen, that he was put to bed by his daughter where he remained until taken to a hospital two weeks thereafter, where he died two days later; that on the evening previous to being taken to the hospital he had referred to the will and the little book indicating it to be in existence at that time; that subsequently to this he had not been out of bed; that on the following day he was unable to recognize his wife; and that from the time of his removal to the hospital until his death he remained in an unconscious condition without opportunity to destroy the will.