Cromer Estate

69 Pa. D. & C. 81, 1949 Pa. Dist. & Cnty. Dec. LEXIS 283
CourtPennsylvania Orphans' Court, Fulton County
DecidedJune 24, 1949
Docketno. 5
StatusPublished

This text of 69 Pa. D. & C. 81 (Cromer Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Fulton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cromer Estate, 69 Pa. D. & C. 81, 1949 Pa. Dist. & Cnty. Dec. LEXIS 283 (Pa. Super. Ct. 1949).

Opinion

Sheely, P. J.,

This is an appeal from the probate of the will of Emma F. Cromer, deceased. Proponents have filed preliminary objections to contestants’ petition for a citation to show cause why the appeal should not be sustained contending that on the facts therein alleged the appeal must be dismissed as a matter of law. The preliminary objections are, in effect, a demurrer and, for the purpose of this argument, admit all facts alleged in the petition.

The controversy concerns only the appointment of an executor. In the will as originally typewritten on March 26, 1941, C. Russel Gracey was appointed as executor. In the will as probated on November 4, 1948, a strip of paper was pasted or glued over the typewritten name of C. Russel Gracey, and the name of H. E. Cromer was written thereon in longhand. A portion of the original will directing that the share of Thomas Cromer should be held in trust was stricken out by lines being drawn through the words, and there was probated as a codicil to the will a writing dated December 5, 1945, and signed by testatrix, in which she referred to this original provision and stated that she had studied about it and now wanted Thomas’s share given to him outright. She then stated: “That part has a line drawn through it not to be read I want the one that settles up to make sure he get his he needs it the way he is crippled.”

[83]*83Contestants contend that under these facts the register of wills erred in giving effect to the pasted strip of paper and in probating the will as naming H. E. Cromer as executor, and that he should have probated it as naming C. Russel Gracey as executor.. No other facts are alleged contesting the validity of the will. All parties in interest have appeared and are parties to this proceeding.

Assuming that the strip of paper was pasted on the will by testatrix, the first question presented is whether the act of pasting a strip of paper over the name of the executor was, in itself, effective as a revocation of his appointment. We are of the opinion that it was. Section 5 of the Wills Act of April 24, 1947, P. L. 89, provides that no will, or part thereof, can be revoked or altered otherwise than: “. . . (3) Act to the Document. By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revocation . . .” This portion of subsection (3) is virtually the same as the provisions of section 20 of the Wills Act of June 7, 1917, P. L. 403, and cases under the former act are applicable.

It is not important whether we denominate the method of revocation as a “cancellation” or as an “obliteration”, and the English rule, contended for by contestants, to the effect that an attempted obliteration is ineffective as a revocation unless the original words are rendered illegible or undecipherable is not the law in Pennsylvania. That rule is based upon specific language of the English Wills Act of 1937, which language does not appear in our Wills Act. In the Pennsylvania cases it is apparent that the two words, cancellation and obliteration, are used interchangeably. In Heller Estate, 158 Pa. Superior Ct. 194, 196 (1945) it is said: “Cancellation or obliteration does not mean an effacing so that the letters or words cannot be read: Evan’s Appeal, 58 Pa. 238, 244.” The court further [84]*84said: “The method of revocation by cancellation is largely optional, and is not in itself important.”

It has been consistently held in Pennsylvania that the drawing of a line through a word or a sentence of a will is an effective revocation by cancellation: Evans’ Appeal, 58 Pa. 238 (1868); Linnard’s Appeal, 93 Pa. 313 (1880); Tomlinson Estate, 133 Pa. 245 (1890); Baker’s Estate, 331 Pa. 33 (1938). If the drawing of a line through a word is an effective revocation thereof, how can it be contended that the pasting of a strip of paper over the word would be ineffective? In Evans’ Appeal, supra, it was said (p. 244) :

“Revocation by cancellation then is not to be understood to mean exclusively drawing crossed lines upon the paper, but it means any act done to it, which, in common understanding, is regarded as cancellation, when done to any other instrument.”

The important thing is that the act be “a complete manifestation of an executed intention to repeal”. The pasting of-the strip of paper over a word fulfills this test.

The second question is whether the act of writing the name of H. E. Cromer upon the pasted strip of paper was a valid appointment of him as executor. If nothing more appeared than this fact it would not have been a valid appointment because of the absence of a signature. In this respect the situation would have been similar to that presented in Baker’s Estate, 331 Pa. 33 (1938), where the residuary clause of the original will was crossed out and an unsigned strip of paper, which attempted to dispose of the residuary estate, was pinned to the will. It was held that the strip of paper could not be probated as a codicil because unsigned. The present case is to be distinguished from Baker’s Estate, however, by the fact that the strip of paper in this case was permanently affixed to the original will by paste or glue while in that case it was [85]*85affixed merely by a pin. By the act of pasting the strip of paper to the surface of the original will it was made a part thereof, and when the name of H. E. Cromer was written thereon the situation presented was the same as though his name had been interlined, which also would have been ineffective as an appointment unless the will were re-executed: White’s Estate, 262 Pa. 356, 362 (1918).

However, when an alteration in a will is made prior to the execution of a codicil, the will as altered is, by the codicil, republished and validated, and the will speaks from the date of the codicil. “The presumption is that any alteration, interlineation, or change was made prior to the execution of the codicil or the final act necessary to make such will effective”: Hickman’s Estate, 308 Pa. 230, 237 (1932) ; Linnard’s Appeal, 93 Pa. 313 (1880). In this case there was a paper admitted to probate as a codicil, but contestants contend that it was not properly probated as a codicil because it made no change in the will since the will was already altered by the cancellation of the trust provision for Thomas Cromer. With this contention we do not agree. Testatrix undoubtedly signed the paper dated December 5, 1945, for the purpose of making certain that Thomas would receive his share outright and, in the absence of testimony showing that the paper was executed after the cancellation of the trust provision, it is a fair inference that the execution of this paper and the cancellation of that provision were simultaneous acts and together constituted the revocation of the trust provision. In the paper she did not state that she had previously drawn a line through the trust provision and that she now wished to explain that act but, on the contrary, she said she had studied about the provision “and now wants his share given to him outright”. We think the paper dated December 5,1945, was properly probated as a codicil.

[86]*86Contestants further contend that the use of the words “the one that settles up” rather than the name of H. E. Cromer as executor, and without referring to the change of executors, indicates that the codicil was signed prior to the alteration. The use of that expression rather than that of C. Russel Gracey as executor, argues just as strongly that the change was made prior to the execution of the codicil.

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Related

Estate of Martens
74 P.2d 238 (California Supreme Court, 1937)
Baker's Estate
200 A. 65 (Supreme Court of Pennsylvania, 1938)
Hickman's Estate
162 A. 168 (Supreme Court of Pennsylvania, 1932)
Heller Estate
44 A.2d 528 (Superior Court of Pennsylvania, 1945)
Baptist Church v. Robbarts
2 Pa. 110 (Supreme Court of Pennsylvania, 1845)
Evans's Appeal
58 Pa. 238 (Supreme Court of Pennsylvania, 1868)
Linnard's Appeal
93 Pa. 313 (Supreme Court of Pennsylvania, 1880)
Stewart's Estate
24 A. 174 (Supreme Court of Pennsylvania, 1892)
White's Estate
105 A. 549 (Supreme Court of Pennsylvania, 1918)
Estate of Tomlinson
19 A. 482 (Montgomery County Orphans' Court, 1890)

Cite This Page — Counsel Stack

Bluebook (online)
69 Pa. D. & C. 81, 1949 Pa. Dist. & Cnty. Dec. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cromer-estate-paorphctfulton-1949.