Opinion
March 23, 1944.
April 10, 1944.
Attorney and client — Ethics — Attorney appearing as both witness and advocate.
1. The practice of an attorney appearing as both a witness and an advocate in the trial of a case or in the argument of a case on appeal is condemned. [211-12]
Wills — Execution — Testamentary capacity — Undue influence — Evidence — Orphans' Court — Practice — Issue d. v. n.
2. Where the Orphans' Court dismissed an appeal from the decision of the Register of Wills admitting a paper to probate, on the ground that the evidence offered by the contestant was not sufficient in law to warrant the granting of an issue d. v. n. as to the testamentary capacity of testatrix, and as to whether or not the will was procured by fraud, undue influence and duress, it was Held that the decree should be affirmed. [206-12]
Argued March 23, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 142, March T., 1943, from decree of O. C., Cambria Co., June T., 1942, No. 24023, in Estate of Anastasia Otto, deceased. Decree affirmed.
Appeal from probate of will.
The facts are stated in the opinion by NELSON, P. J., of the lower court, as follows:
This is an appeal from the probate of a Will.
Anastasia Otto, a spinster, died on September 1, 1941. At the time of her death she was seized of a couple lots of ground estimated to be worth less than $500.00, in or near the City of Detroit, Michigan, acquired by the terms of the Last Will and Testament of Rev. Father Trzetrzynski. The personal property of which she died possessed has been appraised for inheritance tax purposes at approximately $7,500.00 and consists almost entirely of cash, stock and bonds. She left to survive her, as her sole next of kin, a brother, Edward Walter Otto, a resident of Philadelphia.
On May 10, 1940, Anastasia Otto executed a Will, wherein she first provided for the payment of her debts and funeral expenses, next directed the expenditure of $500.00 for Masses for herself and others, gave to Mark I. Leadbetter $1,000.00, and the residue of her estate, real, personal and mixed, she gave to Mae Drass. She named Mark I. Leadbetter as her Executor.
The Will was duly probated on September 4, 1941, and on the same day Letters Testamentary were issued to Mark I. Leadbetter. Thereafter, on May 27, 1942, Edward Walter Otto, brother of testatrix, filed an appeal from the probate of the Will and also presented to this Court in his petition, alleging that at the time of the execution of her Will, Anastasia Otto was not of sound mind, and that the execution of the Will was procured by fraud, undue influence, duress and constraint practiced upon the testatrix by Mae Drass, Mark I. Leadbetter and others. In accordance with the prayer of said petition a citation was issued to show cause why said appeal should not be sustained and why an issue should not be directed to the Court of Common Pleas to try by a jury the questions involved.
An answer was filed for and on behalf of the Respondents on July 13, 1942, and the matter came before this Court on November 24, 1942, for the purpose of taking testimony.
The question to be determined at this time is whether or not the evidence would support a verdict against the probate of the Will.
At the hearing counsel for proponents offered in evidence the decree of probate, to which was attached the Will itself and the affidavits of the witnesses to the execution thereof, who were J. Harrison Westover, the scrivener, and Mae Drass, one of the beneficiaries and a proponent in this proceeding.
The contestant offered in evidence the appeal, with its accompanying bond, the petition for citation sur appeal and the answer thereto, as well as all other papers filed in the proceedings.
The contestant then proceeded to take testimony in support of his contention, and first called J. Harrison Westover, a reputable member of the Cambria County Bar, who wrote the Will. Mr. Westover, after identifying the signatures of the testatrix and the two witnesses to the Will, testified that he knew Miss Otto for three years and had known of her for a much longer time, that she had consulted him professionally prior to May 10, 1940, the date of the Will, as well as subsequently thereto; that some time before May 10, 1940, Miss Otto, accompanied by Mrs. Drass, came to his office, and Miss Otto then arranged for the writing of her Will and made known to Mr. Westover her desires as to the disposition of her property. It is contended by the contestant that Miss Otto, being Polish, could not speak or understand the English language, but Mr. Westover testified that he had no difficulty in understanding her and, in his opinion, Miss Otto was an intelligent woman. Mr. Westover made pencil memoranda of the provisions of the Will and thereafter reduced it to type and some time elapsed before Miss Otto, against accompanied by Mrs. Drass, returned to Westover's office on May 10, 1940, when Miss Otto executed the Will, and Mrs. Drass and Mr. Westover witnessed her signature thereto. Mr. Westover then placed the executed Will in a sealed envelope and delivered it to Miss Otto, together with an unexecuted carbon copy, as was his usual custom or practice.
Dr. Mark I. Leadbetter was called, as if on cross-examination, and stated that he had known the testatrix since 1906, that his home was next door to the Polish Church Rectory where the testatrix had been employed from 1906 until a short time before her death; that he performed dental services for the testatrix since 1920 or 1921, without charge, and that he and the testatrix were quite friendly.
Mrs. Mae Drass, called by contestant, as if on cross-examination, testified that she knew and had been friendly with the testatrix for approximately thirty-five years; that, at the request of testatrix, she drove the latter to the office of Attorney Westover, that the first visit was about a month before May 10, 1940, when the will was executed. She said that the testatrix, Mr. Westover and she were the only persons present when the Will was signed, and that the testatrix understood, and had no difficulty in having Mr. Westover understand, just how she desired to dispose of her estate.
George F. Wildeman, President and Cashier of the First National Bank of Barnesboro, testified that he had been acquainted with Miss Otto for twenty-five years, that the testatrix had consulted him with reference to taxes on the lots near Detroit which she had acquired through the Will of Father Trzetrzynski; that he frequently was unable to understand her, as he couldn't speak or understand the Polish language, and he drove her to Portage to consult with Father A. M. Habrowski, a Polish Priest, who later made a trip to Detroit to ascertain the situation with regard to the Michigan real estate. Upon the return from Michigan of Father Habrowski and at his request by telephone, Mr. Wildeman arranged to drive Miss Otto to Portage, but she refused at the last minute to make the trip.
Mr. Wildeman stated that Miss Otto was incapable of conducting her own personal financial affairs, because of her ignorance of the English language and, with regard to her ability to write English, he saw her write her name only.
On one occasion Miss Otto talked to him about making a Will, and he urged her to do so and, at a later date, she informed Wildeman that her Will had been written and it was placed in her lock box in the Bank.
Mr. Wildeman testified that Miss Otto had for many years acted in the capacity of housekeeper for Father Trzetrzynski, and that she had entire charge of the household with a maid under her supervision; that Father Trzetrzynski, who was very brilliant and a fairly good business man, had named Miss Otto as the Executrix of his Will and that Miss Otto was a saving, careful business woman, that he had had many conferences with the testatrix in the matter of the settlement of the estate of Father Trzetrzynski, and at no time was it necessary to use an interpreter except on the occasion of the discussion of the Michigan real estate.
Miss Virginia Bush, called by the contestant, testified that she had an intimate acquaintance with Miss Otto for about thirty-five years and that Miss Otto could speak English brokenly; that, in his lifetime, Father Trzetrzynski looked after her business affairs, and that the witness frequently accompanied the testatrix, at the latter's request, on shopping tours, because of the fact that the testatrix couldn't speak English very well. Miss Bush stated that Miss Otto could and did read the English paper but couldn't say how well, and she also stated that Miss Otto was a fine, intelligent woman.
Edward Walter Otto, the contestant and brother of the testatrix, testified that he last visited with his sister in Barnesboro in 1922, and the last letter he received from her was in 1936, at which time he or his wife had sent to the testatrix a photograph of their son.
Mrs. Felicia Otto, wife of the contestant, corroborated the testimony of her husband as to the 1936 correspondence and stated that the last time she saw the testatrix was in 1918 at the funeral of a relative.
This is the testimony on part of the contestant. No testimony was taken by the proponents of the Will.
The testimony does disclose, in addition to the above, that Mrs. Drass was a frequent visitor to the living quarters of the testatrix, that there was a joint bank account in a Cherry Tree Bank in the names of the testatrix and Mrs. Drass, and that the latter, on various occasions, was the hostess of Miss Otto on automobile rides. But where is the testimony to the effect that there was anything but a long standing and intimate friendship existing between them? It just isn't in the record.
There is absolutely no attempt on part of the contestant to prove that the testatrix was of unsound mind on May 10, 1940, when the Will was executed, or at any other time, or even that there was at any time in the life of the testatrix any queer or whimsical conduct.
A testator who has a sound mind and disposing memory has been defined by our Appellate Courts as one who has a full and intelligent knowledge of the act in which he is engaged, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons and objects he desires to be the recipients of his bounty. This record fails to disclose the lack of any of these qualities in Miss Otto.
And again wherein does the testimony show, even in the slightest degree, that Mrs. Drass used or practiced or even attempted to use or practice what might even be termed unethical conduct? Certainly there is no testimony in this record to indicate that Mrs. Drass used undue influence, duress or constraint upon Miss Otto, and even the suspicion that Dr. Leadbetter is guilty of such practice is still more remote.
Taking into consideration all of the testimony in the case, and considering it in its most favorable aspect toward the contestant, we are of the opinion that there is no substantial dispute upon material questions, and that the evidence would not support a verdict against the Will, and we therefore must dismiss the appeal.
Contestant appealed.
George O'Dougherty, with him Fred J. Fees and John P. Jordan, for appellant.
J. Harrison Westover, for appellee.
This is an appeal from the decree of the Orphans' Court of Cambria County dismissing the appeal from a decision of the Register of Wills in admitting to probate a paper purporting to be the last will and testament of Anastasia Otto, and refusing an issue d. v. n.
The issues raised were the testamentary capacity of the decedent and whether or not the will was procured by fraud, undue influence and duress. The court below held that the evidence offered by the contestant was not sufficient in law to warrant the granting of an issue. We agree with this.
One of the subscribing witnesses to the will in question was J. Harrison Westover, a member of the bar. He was also a witness in this case and he represented the respondent in the court below and argued the case for the appellee in this court. For an attorney to appear as both a witness and an advocate in the trial of a case or in the argument of a case or appeal, is a practice which we condemn. An attorney who does this, except in those rare instances where an adverse party puts him on the stand as a witness, commits a breach of good professional taste, as this court pointed out in Smith, to use, v. Smith, 294 Pa. 347, 144 A. 290. The 19th canon of Professional Ethics, adopted by the American Bar Association on August 27, 1908 (Vol. 49 of the Reports of the American Bar Association, p. 749), reads as follows: "When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."
We find in this record no reason to reverse the decree of the court below.
The decree is affirmed on the opinion of President Judge NELSON, costs to be paid by the appellant.