Opinion
September 29, 1950.
November 13, 1950.
Wills — Testamentary intent — Informal writing — Extrinsic evidence.
Where decedent wrote "dear bill, i want you to have farm" and signed her name, it was Held, in the light of the extrinsic evidence, that the writing was testamentary in character and probatable as decedent's will.
Before DREW, C. J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeals, Nos. 17 and 18, May T., 1950, from decree of Orphans' Court of York County, in Estate of Annie N. Kauffman, Deceased. Decree affirmed.
Appeal by proponents of will from refusal of Register of Wills to admit will to probate. Order of Register reversed and will ordered probated.
The facts are stated in the opinion by GROSS, P. J., of the court below, a part of which is as follows:
This is an appeal from the decision of the Register of Wills of York County refusing to admit to probate a certain undated instrument of writing alleged to be the holographic last will and testament of Annie Kauffman, also known as Annie N. Kauffman, late of the Township of West Manchester, in said County, deceased, which reads as follows: "dear bill i want you to have farm Annie Kauffman."
The decedent died on Sunday, May 22, 1949, unmarried, at the age of eighty-seven years. Her husband, William H. Kauffman, having predeceased her on July 19, 1937. Letters of administration on her estate were granted by the Register of Wills on May 26, 1949, to Noah Kauffman, a son, and Marie E. Zarfoss, a daughter.
On September 23, 1949, William M. Kauffman, a son of the decedent, believing that he was the "dear bill" mentioned in the above quoted instrument presented his petition to the Register of Wills of York County, asking for the probate of said instrument as the last will and testament of his mother, and that letters of administration c.t.a. on her estate be granted to him. On the same day the Register of Wills refused to admit the alleged will to probate on the grounds that the instrument offered is not testamentary in character. It is from this decision of the Register of Wills that William M. Kauffman has appealed.
On petition of the proponent, a citation in the usual form was issued and directed to be served upon all the heirs and next of kin of said decedent. No answers were filed to the citation by any of the parties in interest, but all of them appeared personally and by counsel at the hearing when the testimony of the witnesses was taken. On January 9, 1950, at the argument, a stipulation was filed by all of the parties in interest, to the effect that the Court shall decide whether or not an issue d.v.n. should be awarded and, in the event of such issue being awarded, this Court should decide such issue as a Judge sitting without a jury.
The contestants object to the probate of the alleged instrument on the grounds that it purports to be no more than a letter; does not show testamentary intent and that extrinsic evidence to show testamentary intent is inadmissible, but, if such evidence is admissible, the "two witness rule" is applicable thereto. Fraud was also alleged but was abandoned at the argument.
That the paper offered for probate was actually written and signed by the decedent is not seriously disputed. The main question for our decision is, Did she write it with testamentary intent? i.e., Did she intend that the paper so written by her should be her will? The ultimate effect of the disputed paper, if found to have been written by the decedent with testamentary intent, is not now before the Court.
In Rocket Will, 348 Pa. 445, at page 448, the Supreme Court held that: "In this Commonwealth the line of demarcation between matters of probate and of distribution or construction is distinct and definite. In this connection it was said by this Court, in Carson's Estate, 241 Pa. 117, 121, 88 A. 311: `The probate of a will without regard to its provisions is one thing; distribution of the estate of the testator in accordance with its terms is another. The former is for the register; the latter is none of his concern.' It is clear that the issue, i.e. whether or not clause (a) formed a part of testator's will, is one of probate, rather than of construction or distribution." See also Zell's Estate, 329 Pa. 312; and Burtt Will, 353 Pa. 217.
A will was defined by Blackstone (2B1. Comm. 499) as "the legal declaration of a man's intentions, which he wills to be performed after his death", and by Kent as "a disposition of real and personal property to take effect after the death of the testator".
The foregoing definition of a will has been universally adopted by the Courts of this state and requires no citations to support it.
While the informal character of a paper is an element in determining whether or not it was intended to be testamentary, this becomes a matter of no moment when it appears thereby that the decedent's purpose was to make a posthumous gift. Kisecker's Estate, 190 Pa. 476; Kimmel's Estate, 278 Pa. 435. The mere fact that the instant paper offered for probate was addressed to "dear bill" is of no materiality except in so far as it may aid in identifying the object of her bounty. Wenz's Estate, 345 Pa. 393. The mere fact that the paper was in the form of a letter does not affect the result. Knox's Estate, 131 Pa. 220; Scott's Estate, 147 Pa. 89; Davis's Estate, 275 Pa. 126. Neither does the fact that the paper was undated have any particular significance. Hengen's Estate, 337 Pa. 547.
If the instrument is in writing and signed by the decedent at the end thereof and is an otherwise legal declaration of his intention which he wills to be performed after his death, it must be given effect as a will or codicil, as the case may be. Zell's Estate, supra, and cases there collated, at page 314. See also Hengen's Estate, supra.
In all cases of this kind where a paper is proposed for probate and its testamentary character is denied, it becomes the duty of the Court in the first instance to examine the paper, its form and its language, and therefrom determine as a matter of law whether or not it shows testamentary intent with reasonable certainty. If testamentary intent is satisfactorily revealed from such an examination by the Court, the paper should be probated as a will.
On the other hand, if, from such examination, the paper is shown not to be a testamentary disposition, but is shown to be a document of another type, then it is not to be probated as a will. But, if, from such an examination, the Court should determine that a real doubt or real ambiguity exists, so that the paper offered for probate might or might not be testamentary, depending upon circumstances, then it has been held on numerous occasions by the Appellate Courts that the document presents an ambiguity which will permit the use of extrinsic evidence in aid of resolving the uncertain character of the paper. McCune's Estate, 265 Pa. 523; Wenz's Estate, supra, and authorities there collated on page 397; Hutton on Wills pp. 132, 178.
If, however, after considering the extrinsic evidence in connection with the propounded paper itself, the ambiguity has not been dispelled and the Court is still in doubt that the language of the propounded paper is susceptible of but one meaning and that a verdict of a jury would be sustained either in favor of or against the paper as a will, an issue d.v.n. should be granted, unless waived and the final decision lodged in the lap of the Court, as the parties have done, by stipulation, in the instant case. Hutton on Wills, page 178.
Under the authority of Hengen's Estate, supra, which we will discuss later, we might have been warranted in holding that, upon proper proof of its execution by the decedent, the disputed paper was prima facie the will of the decedent and thus have placed the burden of proving the absence of testamentary intent upon the contestants. The proponent, however, chose to assume the burden of proving testamentary intent.
We admitted evidence for that purpose and from it the following relevant facts appear to be either admitted or undisputed:
The decedent left to survive her as her only heirs at law and next of kin the following children, to-wit:
(1) Noah N. Kauffman, a son, who, after his marriage, left his parents' home about forty years ago and is now living in the Borough of Glen Rock, in York County, and is one of the contestants.
(2) Marie E. Zarfoss, a daughter, who also married some years ago and lives in the Borough of Dallastown, in said county, and is one of the contestants.
(3) Florence M. Smyser, a daughter, who always lived with her parents and, after her marriage in December, 1946, both she and her husband resided with the decedent until the decedent's death. She is not one of the contestants.
(4) William M. Kauffman, a son who has resided in Spring Garden Township, in said county for the past sixteen years. He is the proponent.
The ages of the decedent's children are not shown in the record, but, from their appearance while attending the hearing, it is apparent that they are all above forty years of age. There is no evidence to show that the decedent was on unfriendly terms with any of her children.
The decedent had another son, Harry N. Kauffman, who had never married and always lived at home with his parents. Harry died on March 18, 1949, just about two months before his mother, intestate, and without issue. The decedent, at the time of her death, owned real estate as follows:
(1) Two dwelling houses, situated in the City of York and known as Nos. 806 and 808 East Market Street. The value of these dwelling houses does not appear in the evidence.
(2) A farm hereinafter referred to as the "home farm," the late residence of the decedent, containing about 113 acres of land, situate in West Manchester Township, York County. The decedent had lived on this farm ever since the death of her late husband, in July 1937. Her daughter, Florence M. Smyser always made her home with her mother and, after Florence's marriage, in 1946, her husband, Roman Smyser, also made his home with them. Her son Harry also lived with her and operated this farm on behalf of his mother. The stipulated value of this farm is $20,000.00.
(3) By virtue of the intestate laws, upon the death of the son Harry, his estate passed to his mother, including a farm hereinafter referred to as "Harry's farm", containing about 100 acres of land, situate partly in Spring Garden and partly in Springettsbury Townships, York County. The stipulated value of this farm is also $20,000.00.
In addition to the above real estate, the decedent was possessed of about $12,000.00 of personal property.
The distance between the home farm and Harry's farm was not less than four miles. Harry's farm had been occupied and operated by his brother, William M. Kauffman, the proponent, for the past fifteen years, as a tenant on the basis of sharing the crops. William and Harry frequently assisted one another as the necessities required in the operation of both of these farms, without any special compensation passing between them and purely on a cordial family relationship.
The foregoing well established facts indicate the environment under which the decedent lived after the death of her husband in July of 1937, and until the time of her own death.
A large number of witnesses were called by the proponent. Only one witness, Richard E. Kohler, Esq., a member of the York County Bar, was called to testify in behalf of the contestants. By agreement of counsel, the witnesses were segregated.
The testimony submitted falls into two classes: (A) Statements allegedly made by the decedent during the interim between Harry's death, on March 18, 1949, and May 17, 1949; and (B) Statements and events on May 18, 1949, the day of the execution of the alleged will . . . .
The detailed analysis of the testimony of each witness is omitted.
It now becomes our duty to consider this extrinsic evidence in connection with the text of the disputed paper and determine therefrom whether or not the ambiguity appearing on the face of the disputed paper has been satisfactorily removed and, if we find that the disputed paper was written by the decedent, intending that it should be her will it is probatable, with its meaning a matter of will construction, even though, when construed, it may not constitute an effective testamentary disposition. Burtt Will, 353 Pa. 217; Tranor's Estate, 324 Pa. 263.
On behalf of the contestants' it is argued that the word "want" as used by the decedent in the disputed paper, without the addition of the words, "after my death" or words of similar import, does not disclose a testamentary intent, but merely an intention to make a gift within the lifetime of the decedent, or as manifesting some other mental attitude towards her son William which is definitely not of testamentary character.
In Tozer v. Jackson, 164 Pa. 373, the informal writing offered for probate read as follows: "High James Rogers do give to John Jackson, Sr., my property known as Pen argyl Hotel and the land adjoining in Pen argyl in Northampton County P. A. James Rogers." These words were held to be testamentary in character.
In Hengen's Estate, supra, an instrument was probated as a codicil to the decedent's will, containing words as follows: "I want Mamie to have my House 544 George St. M. L. Henge." These words, on the authority of Tozer v. Jackson, supra, were held to be testamentary in character and in commenting upon the decision in the Tozer case, the Supreme Court had this to say: "This Court held that since undoubtedly the language was intended to have the effect of conveying the real estate described and since it could not possibly have that effect except as a testamentary instrument, after the death of the donor, the paper was prima facie testamentary in character."
The Court said further: "Here, as in the Tozer Case, the paper could accomplish its intended purpose of conveying the real estate only as a testamentary disposition, and here, as there, the paper was in the possession of the decedent to the moment of death and was placed by her where it would certainly be discovered after death.
Particularly pertinent is the case of Cock v. Cooke, L. Rep. 1 Prob. and Div. 241, approved and relied upon by this Court in the Tozer Case. There the following writing was held to be testamentary: `I wish my Sister Louisa Cook of 104 York Road Lambeth to have My Schering (Charing) Cross bank book for her own use. Sarah Jenkins'. Mr. Justice GREEN quoted with approval from the language of the Court as follows: `The expression, "I wish my sister to have", etc., appears to me to imply, "I wish her to have after my death", because when she wrote those words she was dangerously ill and did not expect to live . . .'
Under all the circumstances the words `I want Mamie to have my House' necessarily must be taken to refer to a time in the future, to wit, after the death of the testatrix, and therefore the court below rightly held the instrument to be testamentary in character."
In Wenz's Estate, supra, the decedent wrote the following: "Mr. Karl Knapp,
Trustee
In case of my death without having made a will it is my wish and desire that all money derived from Licking Co. Gas wells, and my Pro-rata share of any expenses and taxes are deducted, be paid to
Mrs. Anna M. Conroy 1450 Chartiers Ave., McKees Rocks, Pa. (Signed) Fred P. Wenz."
This instrument was directed to be probated as his will and, on appeal to the Supreme Court, the lower court was affirmed, Justice MAXEY holding, at page 396: "The fact that this paper is in law either a will . . . or it is nothing is a fact which with other facts in the case was proper for the court's consideration in determining whether or not it was a will."
The Court held further that because the decedent "was approaching death and it may be inferred that he contemplated it when he executed this paper".
It has been stated in a number of our cases that no will is brother to another, that is to say that the law of precedents has very little applicability in the matter of will construction.
But because of the similarity in form, the words and phraseology employed, with no substantial difference in the circumstances under which two instruments were written, the precedent established in construing the one would become helpful in arriving at the intent of the writer in the other.
The cardinal rule in the construction of wills is to find the testator's intent. Such intent, whether it be to discover testamentary intent or its meaning as a matter of will construction, is best arrived at by placing one's self in the position of the testator and reading the will from that standpoint.
Here, as in the Tozer Case, Hengen's Estate and Wenz's Estate, we have the case of a disputed paper which is in law either a will in respect to decedent's farm or it is nothing, written by the decedent with her own hand, at age 87 years, while sick in bed and whose approaching death four days later it may be inferred she contemplated when she executed the paper.
The night of May 17 was a restless night for the decedent. Her faithful daughter Florence, who had always lived with her mother and in whom she must have had implicit confidence, had nursed her through the night.
Early in the morning, to her daughter Florence, she said, "Here I was so good and I didn't fix things. You call your husband Roman to go down to Bill (meaning her son William) and tell him to bring a lawyer out here, I want to fix things." Florence told her husband what her mother said and then her husband went into the decedent's room and she told him the same thing. Her message was communicated to her son William, who came to see his mother that morning and she said substantially the same thing to William, who then communicated with Attorney Kohler for his services and, when the decedent was apprised of the fact that the attorney could not come to see her before 6:00 o'clock in the evening, she then said to her daughter Florence, "I want to fix something. Can't I do it myself?" And Florence said to her, "Well, you can write a paper". Florence then procured a pencil and paper for her and, sitting up in bed, unassisted, she wrote the disputed paper, and entrusted it for safe keeping to her daughter Florence, who put it in a bureau drawer in her mother's room, and subsequently that evening she showed the paper to Attorney Kohler and her brother William and then placed it in a box with her mother's other private papers, where it remained until after the decedent's death.
We are of the opinion that the testimony of the daughter Florence alone is sufficient to bring this case within the doctrine laid down by the Supreme Court in the Tozer Case, Hengen's Estate and Wenz's Estate, and that it is ruled by these three decisions.
The testimony of the two doctors who saw the decedent on May 18, one before and the other after the disputed paper was written, shows that the decedent was a person who always had a strong mind and was in full possession of her mental faculties that day. In fact the issues of the decedent's testamentary capacity and undue influence having been exerted upon her when she wrote the paper were not raised by the contestants.
The testimony of the eleven or twelve witnesses to the decedent's declarations made by her during the interim between Harry's death and her own death strongly corroborate the testimony of the daughter Florence and indicate to the Court that the decedent, upon acquiring the knowledge that her son Harry had died intestate, intended either to convey a farm to her son William or by her will devise it to him. It is clear at least that she wanted William to have a farm, and that she was going to do something by which he would get it. If the disputed paper is to be effective for any purpose, it must become effective as her will and that she intended it to be her will seems to the Court to be fully shown by the form of the paper, the words used and the extrinsic evidence in the case.
The two witness rule contended for by the contestants is not applicable to this case.
The Superior Court, in Gibson's Estate, 128 Pa. Super. 44, at page 50, reviews the circumstances under which the two witness rule is applicable, from which we quote as follows: "The appellant contends, on the authority of Sunday's Est., 167 Pa. 30, 31 A. 353, that testamentary intention must be proved by two witnesses which proof was not here made. This contention is not well taken and has heretofore been considered by the Supreme Court. In Kisecker's Est., supra (p. 479), after referring to Sunday's Est., supra, and to Scott's Est., supra, it was said: `But an examination of these cases and all others to like effect will show this rule obtains only where no testamentary intent is derivable from the instrument itself, indeed, only in cases where the nature and form of the instrument are inconsistent with such intent. Under such circumstances, where extrinsic evidence is relied upon exclusively to show that the instrument was intended to operate as a will, it is not difficult to understand why the statutory requirements are held applicable. But where form and language used are entirely inconsistent with such intent, under judicial construction, or the intent is fairly derivable from a consideration of the entire instrument, the necessity for two witnesses relates only to the formal execution of the paper.' "
Whatever ambiguity might appear on the face of the disputed paper, the extrinsic evidence offered, particularly that of the daughter Florence, clearly removed the ambiguity and, even without the stipulation of counsel hereinbefore referred to, we would not have been warranted in granting an issue devisavit vel non.
Contestants appealed.
Spencer R. Liverant, with him Nevin Stetler and Markowitz Liverant, for appellants.
W. Burg Anstine, with him Robert I. Shadle, for appellee.
The decree of the Orphans' Court of York County directing, inter alia, that the Register of Wills of that county, upon proper legal proofs of execution, to admit the written instrument to probate as decedent's last will and testament, and to grant letters of administration c.t.a. thereon according to law, is affirmed on the comprehensive opinion of President Judge GROSS. Appellants to pay the costs of this appeal.