Okowitz Will
Okowitz Will
Opinion of the Court
Opinion by
On July 23, 1952, Anthony Okowitz, a Wayne County resident, died in Honesdale, Pa. Surviving him as next-of-kin were four sisters, two brothers and the son of a deceased brother.
An appeal was taken
The will, lawyer-prepared and dated January 2, 1940, was entirely typewritten with two exceptions:
As the will was presented for probate its residuary clause (Item Third) appeared as follows: “All of the rest, residue and remainder of my said estate, real, personal and mixed, of whatsoever kind and character and wheresoever situate, I give, devise and bequeath to the following named persons, to them and their heirs and assigns forever, in the percentages set opposite their respective names, viz:
“To my sister, Mollie McDermott, of New York City, an undivided 2 percent.
“To my sister, Theresa Warwick, wife of Edward Warwick, of Honesdale, Pennsylvania, an undivided 94= percent.
“To my niece, Helen McDermott, of New York City, an undivided 1 percent.
“To my nephew, Vincent Okowitz, son of Joseph Okowitz, an undivided 1 percent.
“fPe my niece, Helen Higgins, wife ef RefeeH
Pennsylvania, an undivided percent.5
*87 “To my niece, Anita Warwick of Honesdale, Pennsylvania, an undivided 1 percent.
“Lastly: I hereby nominate, constitute and appoint Executrix of this my last Will and Testament, My Sister Threresa Warwick ANNA E3NLABNEH HENSEL of Honesdale, Pennsylvania, . . . .”
The court found, and its finding is supported by uncontradicted evidence, that the will was prepared, at Okowitz’s direction, by Lester E. Male, a member of the bar. In the will, seven persons were named as the residuary legatees but, at Okowitz’s direction, the specific percentages of the residue the legatees were to take were left in blank. After the will was prepared but prior to its execution, Okowitz took the will with him and, sometime later, he returned it to Attorney Male. At that time the percentages opposite the names of the residuary legatees had been inserted in handwriting, and, in that form, the will was then signed by Okowitz and witnessed by Attorney Male and Miss Lindsay, his secretary.
Twelve years later this will was found in decedent’s possession and presented for probate. At that time the will differed in some respects from its condition at the time it was executed, the authority for such fact being the testimony of the scrivener, Attorney Male, and the very appearance of the face of the will. The Higgins and Hensel
A naked eye scrutiny of the will, as probated, would indicate a disposition of the residue as follows: (1) to Mollie McDermott “2” percent; (2) to Theresa Warwick “94” percent; (3) to Helen McDermott “1” percent; (4) to Vincent Okowitz “1” percent; (5) to Anita Warwick “1” percent, a total disposition of ninety-nine (99%) of the residue.
The action of the court below in striking off the Higgins and Hensel bequests was proper. That a bequest or bequests may be revoked by a testator by drawing a line or lines through such bequest or be
In disallowing the attempted substitution of Theresa Warwick as executrix and directing the appointment of an administrator for the estate, the court acted properly. Again, the fact that the will remained in Okowitz’s possession until his death gives rise to the presumption that the changes and alterations were made by him and the scrivener’s testimony firmly fixes the time of such changes and alterations as subsequent to the will’s execution. By lining out Mrs. Hensel’s name as executrix her appointment was effectively revoked; even though not revoked, her death, of course, nullified the original appointment. The attempted substitution as Mrs. Hensel’s successor of Mrs. Warwick must fall; such substitution required a re-execution of the will in this respect in order to
In Molden, supra, this Court recently considered alterations made by some unidentified person in the amount of bequests after the time of execution of the will. In Molden, inter alia, two bequests, originally each $5000 (in the opinion of a handwriting expert) but $2500 when the will was offered for probate, were increased by this Court to the amounts which the bequests were at the time the will was executed, particularly since an examination of the face of the instrument showed awkwardness, erasures and alterations in the figures as they appeared in the will. In reliance on Molden, the court below decreased the amount of the Mollie McDermott bequest from “2” to “1” percent. The scrivener testified that at the time the will was executed each residuary legatee, including Mollie McDermott and excluding Theresa Warwick, was to receive “1” percent of the residue and that such percentage had been inserted in the residuary clause when it was returned to the scrivener’s office by Okowitz and appeared therein when the will was signed. Even the most cursory examination will indicate that the figure “2” in the Mollie McDermott bequest has been overwritten and is suggestive in appearance of an alteration. Such appearance, together with the scrivener’s testimony, is sufficient to support the finding of the court below in this respect, and, on the state of the record, whoever made such alteration and change did so after the time of execution of the will. On the authority of Molden, the restoration of the amount of this bequest to its original figure was eminently correct.
With the elimination of the Eensel and Higgins bequests, the reduction of the Mollie McDermott bequest and the concession of the validity of the Helen McDermott, Vincent Okowitz and Anita Warwick be
B. F. Jennings, a Honesdale photographer of 14 years experience, examined the will through the medium of photography. Although it was his first experience as an expert witness, he did consult with a representative of Eastman Kodak Company, and a lieutenant in the New York State Crime Bureau. In his examination, Jennings photographed both the front and back of the will; in so doing, he employed in some photographs a special copy film with a special filter, in other photographs ultra-violet light, and in other photographs infra-red film with infra-red filter. Jennings examined both the Hensel and Theresa Warwick bequests in an attempt to discover the presence of numerals in connection therewith. In connection with the Hensel bequest, one photograph (Exhibit A) disclosed the numerals “5”, “0”, “3”, another photograph (Exhibit B) disclosed the numerals “5” and two “3’s”, another photograph disclosed a “5” but not
In connection with the Theresa Warwick bequest, one photograph (Exhibit D) showed a “11”, another photograph (Exhibit E) showed the “1” as “1”, not “94”, another photograph (Exhibit F) showed “1” clearly and the rest of the figure light, another photograph (Exhibit G) “1” fluoresced darker than the rest of the figure, another photograph (Exhibit H) fluoresced “1” darker than “94”, and another photograph showed “1” fluoresced dark and the rest of the figures somewhat lighter. Although there was no testimony as to any erasure in this bequest, contestants urge that Jennings’ testimony proves that the original bequest to Theresa Warwick was “1” percent, that a loop was affixed to “1” thus converting it into a “9” and “4” was then placed to the right of the “9” making the bequest “94”.
If we assume, arguendo, that the contestants are correct in their position, i.e., that the Theresa Warwick ¡bequest was “1” percent and the Hensel bequest was not “1” but some combination of “5”, “0”, “3”, “3”, then, as the proponent clearly indicates in her brief, Okowitz’s disposition of his estate was considerably less than 100% of the residue. Taking any combination of “5”, “0”, “3”, “3” (50, 53, 33, 30), together with a bequest of “1” percent to each of the other residuary legatees, the disposition of residue by
Contrasted with the testimony of both Trumm and Jennings is the testimony of the scrivener who stated that when the will was executed the percentages had all been filled in and they totalled 100% of the residue. A comparison of the conflicting and contradictory testimony of Trumm and the nebulous and conjectural testimony of Jennings with the positive testimony of the scrivener of this will indicates the weak basis of contestants’ position.
The bequest to Theresa Warwick of 94% of the residue far overshadowed all the other bequests. The scrivener testified that he questioned Okowitz at the time the will was executed concerning this and was assured that such was Ms desire. Okowitz and Ed Warwick, the husband of Theresa Warwick, were in the shoe business, the latter being an employee, and the relationship between the Warwicks and Okowitz was very close. The court found, and such finding is supported by the evidence, that “Theresa Warwick, the principal beneficiary, was the one person who had cared for [Okowitz] and had taken care of him and would be the natural object of his bounty.” Our examination of the record confirms this finding and we discern nothing unnatural in the bequest to Theresa Warwick of the bulk of his estate by the decedent.
When the original appeal was taken to the Orphans’ Court of Wayne County from the probate of this will the petition contained a demand for a jury trial. After that court had dismissed the appeal, reopened the matter and returned it to the Register, the
Considering the evidence on this record in its entirety it is manifest that no substantial dispute of fact exists. Trumm professes a sensory reaction to the print on this document which no one else sustains. The contradiction and conflict in his testimony renders valueless his conclusion. If Jennings’ testimony be accepted, we reach the absurd result that Okowitz disposed of only a small portion of the residue of his estate. On the other hand we have the uncontradicted testimony of the scrivener of this will that at the time Okowitz executed this will Theresa Warwick under its terms was to receive 94% of the residue and the balance was to be divided among the six named legatees
Lastly, contestants urge that proponents have failed to comply with the “two witness rule” (Hock v. Hock, 6 S. & R. 47; Rhodes Will, 399 Pa. 476, 160 A. 2d 532) in proof of this will. Such argument is without merit. Contestants contend that neither the date of execution nor the contents of the • document with regard to the condition of the blank spaces when the will was executed have been shown by two witnesses. Both subscribing witnesses, Attorney Male and Miss Lindsay, through oral testimony and the attestation clause to which they affixed their signatures, fulfilled the statutory requirements of proof as to the execution of this will. It was not necessary that these witnesses know the contents of the will nor was it incumbent upon proponent to prove that they knew the contents of the will. Contestants’ reliance on the “two. witness rule” under the circumstances is unjustified.
From our examination of this record we find no abuse of discretion on the part of the court below. Both the Higgins and Hensel bequests were properly cancelled, the appointment of Mrs. Hensel as executrix was properly revoked, the substitution of Mrs. Warwick as executrix was not validly accomplished and the Mollie McDermott bequest was correctly reduced to its original percentage. Alterations and changes made in this document subsequent to the execution thereof clearly dictate these results. However, the other parts of the will which remained unaltered and unchanged are not affected by the court’s
Decree affirmed. Costs on contestants.
In the disputed will (according to proponents) one sister, three nieces, the son of the deceased brother and a sister-in-law each received one (1%) percent, and one sister ninety-four (94%) percent of the residue. Two sisters and two brothers were not mentioned in .the will.
That appeal was taken by all .those relatives who would share in the event of intestacy, with the exception of Theresa Warwick, who, under the will, claims ninety-four (94%) percent of the residue.
As its reason, (the court below stated: “Sometime later, it was discovered that certain figures appeared in the copy of the will which the Register had testified in the original hearing he could not see on the Will.”
This appeal was taken by decedent’s sister, Theresa Warwick.
The numerals inserted in the percentage spaces of the respective bequests were all handwritten in. ink. The phrase, “My Sister Threresa Warwick” was handwritten and inserted and appeared above the phrase “Anna Elizabeth Hensel”, which was lined out with a pencil.
Proponents claim that decedent inserted “1”, while contestants claim he inserted “50”, in this blank space.
Anna E. Hensel, a named legatee and executrix, died after tlie execution of the will but long prior .to Okowitz’s death.
If this disposition were correct, then the Hensel and Higgins bequests necessarily would each have had to be for fractional percentages of “1” percent, otherwise the residuary clause would have been dispositive of more than “100” percent of the residue.
Aot of April 24, 1947, P. L. 89, §2, 20 PS §180.2.
The will was offered for probate on July 23, 1952, nine months before Trumm first testified and over two years before he testified the second time.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.