Brindle Will

60 A.2d 1, 360 Pa. 53, 1948 Pa. LEXIS 467

• Court: Supreme Court of Pennsylvania
• Decided: May 27, 1948
• Docket: Appeals, 15 and 20
• Status: Published

Opinions

Opinion by

Mr. Justice Linn,

There are four appeals, two from the common pleas and two from the orphans’ court. They involve the property of Anna Fox Brindle who died April 7, 1944, leaving a will dated March 10, 1942, probated April 10, 1944. She left surviving a brother, Frank Fox, and a number of cousins. By this will she gave her property 1 to F. W. Steffey in trust for her brother for life, with the right, in specified circumstances, 2 to use the principal. She devised, her homestead, on the death of the brother, to Mildred Watts Zook, and directed that the rest of her property be divided equally between Mrs. Zook and F. W. Steffey. Neither Mrs. Zook nor Steffey was in any way related to her. Mr. Steffey was also appointed executor. Belleville, where she resided, is a small village of about 1200 inhabitants in Mifflin County. It contained a national bank of which Mrs. Zook’s husband was president, and F. W. Steffey, cashier. Testatrix was about 73 years of age when she made her will and about 75 when she died. Her only surviving brother, Frank Fox, was then about 67 years of age and was described as “a helpless, incurable incompetent, requiring constant attendance of some person to feed and care for him.” After testatrix’s death Frank L. Campbell was appointed guardian of Frank Fox in a proceeding initiated by F. W. Steffey. The first cousins, who, except her brother, were her nearest relatives, concluded that an appeal from the probate should be taken for lack of testamentary capacity, fraud and undue influence in procuring the will, but Mr. Campbell, the guardian of the incompetent, declined to proceed. They then applied to the common pleas, whose ward the incompetent was, for the appointment of a guardian ad litem, to take the appeal. The court appointed William A. H. Brindle guardian ad litem and authorized him to appeal. He was also appointed “guardian and trustee ad litem of Frank Fox” by the orphans’ court. F. W. Steffey and Mildred Watts Zook were permitted to intervene in the proceedings and petitioned both courts “to vacate the various decrees that had been made appointing William A. H. Brindle guardian ad litem and authorizing him to proceed with the appeal and praying the Court to strike the appeal from the probate of the will of Anna Fox Brindle, deceased, from the record.”

The parties, with the approval of the court, agreed that these proceedings should be heard together. The court received the evidence, revoked the appointments of the guardian ad litem and the grant of authority to appeal from the probate and struck the appeal from the record. The present appeals complain of those orders.

In his opinion written in support of those conclusions, the learned judge said, “the only question now before the Court is whether the appointment of the guardian ad litem should be revoked, the decree authorizing him to take an appeal from the probate of the will of Anna Fox Brindle vacated, and the appeal so taken by him stricken from the record.” In our judgment, that was not the only question.

The evidence on the appeal from the probate clearly shows a substantial dispute upon matter of fact. The statute provides what shall be done in such circumstances. The Orphans’ Court Act of 1917, P. L. 363, section 21(b), 20 PS 2582, provides:' “Whenever a dispute upon a matter of fact arises before any orphans’ court, on appeal from any register of wills . . . the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof . . .”

The learned judge, in the course of his decision, did not discuss this phase of the proceedings, an omission probably explainable on the theory that, after he had concluded to vacate the order allowing the guardian ad litem to appeal, there could be no trial of an issue devisavit vel non. He referred to the fact that the incompetent was the ward of the court and that it was the duty of the court to decide what should be best for the ward; that as the will gave the entire net income to the ward with the right in the trustee to use the principal, the ward had substantially all that he could have if the appeal succeeded and the will was set aside and he inherited under the intestate law.

There is no doubt of the power of the common pleas, in a proper case, to determine what appears best for the ward: Harris Estate, 351 Pa. 368, 41 A. 2d 715. But before that question is reached on this record, a funda mental and more important question must be decided. The evidence shows a prima facie case of lack of testamentary capacity, fraud and undue influence in obtaining the will. The statute provides what shall be done in such case. The ward is not the only party concerned; the next of kin and those who may claim under them have rights under the intestate law. If this will is set aside, as it may be, the basis of the comparison made by the learned judge falls. It falls because there has been no testamentary disposition, the property having passed pursuant to the intestate law. It is this possibility which distinguishes this case from the Harris case relied on by the learned judge; in that case, when the comparison was made, there was a valid will; the elements of thé comparison were lawfully established. In the present case, if the contestants succeed, there is no will; there is only a fraudulent transaction. The learned judge erred in assuming that, in passing on the ward’s right to appeal, it was immaterial whether a fraud had been perpetrated on the register of wills and on the parties contesting the probate. We think that if the register was fraudulently induced to admit to probate an instrument which was not a will and therefore not entitled to probate, it became the duty of the court, and of all parties to the proceeding, to see that the rights of the parties lawfully succeeding to a decedent’s property are respected. A court should not accept the contents of a void instrument as a measure of the exercise of judicial discretion by giving it the effect that would be given to a valid instrument.

On the evidence received it was the duty of the court, pursuant to the statute, to direct a precept to the common pleas for the trial of the issue devisavit vel non. The evidence would support a finding that Steffey stood in a confidential relation to Mrs. Brindle, and, in consequence of that relation, now has the burden of showing that his conduct in and about the preparation and the execution of the will, giving him large benefits, was free from fraud and the exercise of undue influence: see Dichter Will, 354 Pa. 444, at p. 452, 47 A. 2d 691; Stewart Will, 354 Pa. 288, 292, 296, 47 A. 2d 204; Ringer v. Finfrock, 340 Pa. 458, 461, 17 A. 2d 348. Mr. Steffey testified that he was “very intimately acquainted with Mrs. Annie Fox Brindle and family”; that he managed “part” of Mrs. Brindle’s property; drew checks for her; carried checks for her rent to her landlord; delivered her testamentary instructions to the scrivener, who was also his own attorney as well as attorney for the bank; received from him the will; dated it before taking it to Mrs. Brindle; obtained from her keys to her safe deposit box immediately before she was taken to the Bellefonte hospital where she died. He initiated the proceeding for the appointment of a guardian for decedent’s brother. Before Mrs. Brindle’s death he had arranged for her renunciation as executrix of her brother Floyd’s estate and himself obtained letters of administration c. t. a.

Mr. Houck, the attorney who, at Mr. Steffey’s request, drew the will, was not called to testify. He represents Mr. Steffey in these proceedings. Instead of receiving Mr. Houck’s testimony, the parties put in a stipulation of “what he would testify.” It contains the following: “F. W. Steffey of Belleville called me by telephone the early part of March, 1942 and asked for an appointment. He called at my office at the appointed time and stated that Mrs. Annie Fox Brindle requested that I prepare her will. I was handed a memorandum of the matters to be covered.

“The memorandum disclosed that Annie Fox Brindle desired the following to be in her will:

“1. Her entire estate was to be placed in trust for the use of her brother, Frank Fox, during his lifetime. The trustee, who was unnamed, was directed to consume the principal if the income was found to be insufficient for the maintenance of Frank Fox.

“2. After the death of Frank Fox the estate was to be disposed of as follows:

“(a) Homestead and contents to Mildred Watts Zook, who was requested not to sell the contents.

“(b) A pecuniary bequest to Mildred Watts Zook in a blank amount.

“(c) A pecuniary bequest to F. W. Steffey in a blank amount.

“(d) Residue of estate to unnamed person or persons.

“3. F. W. Steffey was to be the executor.”

Mr. Steffey testified that he was present while Mr. Houck prepared the will; that he received it that evening and delivered it to Mrs. Brindle “the next morning when I got to the bank.” Mr. Steffey noticed that Mr. Houck had left a blank space for the date and testified: “I typed it in the next morning when I saw the date was omitted.”

The will is typewritten on two sheets of paper. In a blank space left by the scrivener for the insertion of the trustee’s name, are written in ink the words “F. W. Steffey.” In the blanks 3 in the 5th and 6th items providing legacies to Mildred Watts Zook and F. W. Steffey are written the words “Five thousand dollars.” In the 7th item, providing disposition of the residue after her brother’s death are written the words “Mildred Watts Zook and F. W. Steffey, share and share alike.” The writing in the will is said to be the testatrix’s.

At the foot of the will there is a statement that the witnesses “have, in her presence, at her request, and in the presence of each other, subscribed our names as witnesses hereto.” Notwithstanding that statement signed by them, they did not sign in the presence of each other, although, before the register, during probate, they both made oath that they signed as witnesses in the presence of each other. Mr. Steffey testified that he took the witness, McNabb, to Mrs. Brindle’s apartment to witness her will. McNabb’s testimony is full of inconsistent and contradictory statements. The other witness, Yoder, is Steffey’s assistant cashier and was sent by him to sign as a witness. As to subscribing witnesses see Plotts’ Estate, 335 Pa. 81, 5 A. 2d 901; Szmahl's Estate, 335 Pa. 89, 6 A. 2d 267.

Mrs. Brindle, at or about the time the will was signed, was in bad health; she had not been in good health for some years and was getting worse with time and a progressive disease. She suffered with and was much inconvenienced by a bladder complaint, ultimately dying of carcinoma of the bladder, said, in the death certificate, to have been of two years duration. There is evidence that she had become a miser, was unclean in her person and dress and lived in deplorable conditions. Witnesses testified that she frequently declared that she needed things which she said she could not afford to buy when in fact she had large means. If she was then saying what she believed to be true, did she know of what her property consisted when she made the will?

Dr. Joseph Parrish, a physician residing in Bellefonte and long engaged in general practice, testified that he had known Mrs. Brindle for many years; that his mother, then deceased, was a first cousin of Mrs. Brindle. He had her removed to the hospital in Bellefonte. 4 He testified she was “mentally incompetent to make a will and could have been easily influenced,” and gave his reasons for saying so. Mrs. Rena Flynn, a trained nurse, a niece by marriage who had known Mrs. Brindle for many years, testified to a gradual mental and physical deterioration beginning some years before the will was made. Mrs. Flynn resided in New York but visited Belleville several times a year. She gave it as her opinion that Mrs. Brindle was incompetent to make a will. A number of other witnesses who had known Mrs. Brindle, gave evidence of her gradual failure in body and mind and on that evidence based their opinions that she was incompetent to make a will.

There is evidence that Mrs. Brindle’s brother, Floyd, a member of the household composed of Mrs. Brindle and her two brothers, became ill in January or February, 1941, and died February 10, 1942, a month before Mrs. Brindle’s will was signed. There is no dispute that he had been the mainstay of the household. His death was a great shock to Mrs. Brindle and hastened her physical and mental deterioration, or at least made the effects of it more obvious than had previously appeared. A physician called by the interveners testified that “early in 1942, after her brother’s death” he tried to persuade her to go to a hospital for treatment; that he “suspected a malignant disease,” “a malignancy of the pelvic organs” but that she refused to go.

Against the appellants’ evidence of testamentary incapacity and undue influence, witnesses called by the interveners testified that while Mrs. Brindle was apparently in wretched condition physically, she knew what she was doing when she made the will. Only a jury can determine the fact; the evidence shows a substantial dispute: Compare Minnig’s Estate, 300 Pa. 435, 439, 150 A. 626; Kane’s Estate, 312 Pa. 531, 534, 168 A. 681; Lare Will, 352 Pa. 323, 331, 42 A. 2d 801; Stewart Will, 354 Pa. 288, 47 A. 2d 204; Dichter Will, 354 Pa. 444, 47 A. 2d 691.

We have considered appellees’ argument on this branch of the case but, having stated why we think the record discloses a substantial dispute, find it unnecessary to distinguish, seriatim, cases on which appellees rely.

The orders appealed from are reversed and the record is remitted for further proceedings not inconsistent with this opinion; costs to abide the result.

1 After deducting debts, expenses and taxes, the amount for distribution is about $140,000.

2 “In the event the said income shall be insufficient for the proper maintenance, support and keep of the said Frank Fox, by reason of illness or otherwise, I direct that the said trustee shall use and pay so much of the principal of the trust as may be necessary, from time to time, for such purpose or purposes. The payments to or for the use of my brother, Prank Pox, shall be made quarterly.”

3 The 6th item, as drawn in blank, was “After the death of my brother, Frank Fox, I give, devise and bequeath unto F. W. Steffey, of Belleville, Penna., the sum of _.

4 “Q. What were the conditions in which you found her in, Dr. Parrish? A. I was called over the Sunday afternoon and things were in a terrible condition in her apartment, she was lying on a bed with her clothes on. Of course, her illness was such she couldn’t keep herself clean, the sheets were dirty, the towels were all dirty, dishes, and it was just filthy, and she was obviously a very sick woman, and we just bundled her up in the car and she expressed a wish to go to the Bellefonte Hospital, so we took her over there.”