Brantlinger Will

210 A.2d 246, 418 Pa. 236, 1965 Pa. LEXIS 589
Supreme Court of Pennsylvania·Decided May 25, 1965·No. Appeal, No. 93·Published·Cited by 32 cases

Opinion

Opinion by

Mr. Justice Roberts,

This controversy comes to us on appeal from a decree of the Orphans’ Court of Indiana County directing the admission to probate of an instrument dated December Í3, 1962, as the will of Nan Brantlinger, deceased.1 Appellant is the granddaughter and sole heir at law of decedent, as well as a substantial beneficiary under the contested will.2

When the will was executed, Mrs. Brantlinger was 81 years old and obviously showed her advanced age. Approximately a year and a half prior to signing her will, testatrix was hospitalized for treatment of a painful bursitis condition. Apparently Mrs. Brantlinger found her hospital confinement as distressing as her physical ailment and evidenced her displeasure by unco-operative and disruptive conduct.

In October of 1961, testatrix was taken from the hospital by her brother (proponent of the will) and [239] his wife3 and placed in the home of Mrs. Morallo Berry, a practical nurse, who took care of Mrs. Brant-linger until her death in 1964.

In late Fall of 1962, Mrs. Berry contacted Joseph N. Mack, Esquire, an attorney of her acquaintance, and requested that he come to her home to prepare a will for Mrs. Brantlinger.4 After ascertaining Mrs. Brant-linger’s age and the reason for her confinement in Mrs. Berry’s home, Mr. Mack agreed to come but suggested that decedent be examined by a doctor prior to his visit.

On December 13, 1962, a day after decedent had been examined by a doctor and found by him to be competent, Mr. Mack went to the Berry home.5 Upon his arrival he was presented with some notes containing Mrs. Brantlinger’s wishes for the disposition of her property.6 Mr. Mack carefully went over these notes with Mrs. Brantlinger, ascertaining the nature of her property and the identity of her intended beneficiaries, and suggesting contingencies which he felt should be considered and provided for in the will.

After Mr. Mack concluded his conference with testatrix and prepared the will, the instrument was signed by Mrs. Brantlinger and attested to by Mr. Mack, Ruth O. Berry and Margaret I. Bowen, the latter two being residents in the Berry home.7

[240] Although it was conceded that testatrix executed the will by affixing her signature to the instrument, Miss Berry and Miss Bowen refused to sign the affidavit of probate, stating that at the time Mrs. Brant-linger signed the will, she was senile, did not fully understand and was not, in their opinion, competent. For this reason, appellant maintains that the proponent of the will failed to “prove” the will by the statutorily required two witnesses.

The so-called “two witness rule” is manifested in Section 4(a) of the Wills Act8 which provides: “General Rule. ... no will shall be valid unless proved by the oaths or affirmations of two competent witnesses.”

In addition, the Register of Wills Act9 directs: “All wills shall be proved by the oaths or affirmations of two competent witnesses, and ... in the case of a will to which the testator signed his name, proof by subscribing witnesses, if there are such, shall be preferred to the extent that they are readily available, and proof of the signature of the testator shall be preferred to proof of the signature of a subscribing witness.”

Citing cases which deal with proof of the execution of the will,10 appellant contends that a will is not proved unless the two attesting witnesses to the exe[241] cution of the will also attest to testator’s mental capacity. Because two attesting witnesses refused to attest to testatrix’s mental capacity, appellant argues that the proponent of the will has failed to satisfy the “two witness rule”, that further investigation into decedent’s mental capacity at the time she signed her will is therefore precluded, and that the will, being unproved, must be denied probate. Considered in the light of the statutory law and subjected to the scrutiny of reasoned analysis, however, such an interpretation of the “two witness rule” cannot prevail.

Reduced to its most basic premise, appellant’s argument must stand or fall on the determination of whether, in addition to proof of testator’s execution of the will by two competent witnesses, “proof” of a will must also include certification, either express or implied, by those same two witnesses, of testator’s mental capacity at the time the will was executed. If that is a required element of such proof, then appellant’s position is well taken. On the other hand, if it is not essential that the attesting witnesses make an affirmative representation of testamentary capacity in order to establish prima facie “proof” of a will, then it cannot be said that simply because they make a negative representation at probate the will must, ipso facto, fall.

We think it clear that proof of a will does not require any representation of testamentary capacity from the attesting witnesses.11 Appellant makes the mistake of equating the proof of a will with the probate of a [242] will but tbe two are not always the same. Generally, it is true that once tbe execution of tbe will is proved by tbe necessary two witnesses, a presumption of testamentary capacity arises and, in tbe absence of a contest, tbe will is admitted to probate. In those instances, therefore, proof of tbe will also meets tbe requirements for probate. But that is not tbe situation here. In this case the execution of the will has been proved, yet its probate has been subjected to challenge. Appellant’s contentions go not to proof of tbe will but to its validity for purposes of probate12 To sustain her position on that score, however, appellant must overcome, by clear, strong, and compelling evidence, Gold Will, 408 Pa. 41, 51, 182 A. 2d 707, 712 (1962); Masciantonio Will, 392 Pa. 362, 379, 141 A. 2d 362, 370 (1958), tbe presumption of testamentary capacity which arose when tbe execution of tbe will was proved by tbe required two witnesses. Far from being a new rule, this principle has been stated in tbe decisions of this Court for over a century. See, e.g., Kerr v. O’Donovan, 389 Pa. 614, 634, 134 A. 2d 213, 222 (1957); King Will, 369 Pa. 523, 87 A. 2d 469 (1952); Sturgeon Will, 357 Pa. 75, 53 A. 2d 139 (1947) and cases cited therein at 81-82, 53 A. 2d at 142; Rees v. Stille, 38 Pa. 138 (1861).13

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Brantlinger Will, 210 A.2d 246, 418 Pa. 236, 1965 Pa. LEXIS 589 (Pa. 1965).

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