Edelman Estate

84 Pa. D. & C. 16, 1953 Pa. Dist. & Cnty. Dec. LEXIS 188
CourtPennsylvania Orphans' Court, Lehigh County
DecidedFebruary 5, 1953
Docketno. 42794
StatusPublished

This text of 84 Pa. D. & C. 16 (Edelman Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edelman Estate, 84 Pa. D. & C. 16, 1953 Pa. Dist. & Cnty. Dec. LEXIS 188 (Pa. Super. Ct. 1953).

Opinion

Gearhart, P. J.,

Findings of Fact

Harvey E. Edelman, a widower, died on September 14,1952. He left as his only surviving heirs two brothers, to wit, Robert E. Edelman and Eckley G. Edelman.

The first will was dated November 21, 1947, and the second will, entirely in the handwriting of decedent, was dated March 8,1952. The first will was apparently prepared by the Hon. Ira T. Erdman, a former member of the Lehigh County bar, now deceased. The will was typewritten, witnessed by the attorney and another [18]*18person. After the execution of the instrument, decedent in his own penciled handwritng inserted in the first paragraph a direction for the placement of a tombstone in these words: “. . . With tombstone matching my wife’s, Lillie Edelman, in Highland Memorial Park Cemetery”. The second paragraph has also been altered with lead-pencil lines. The lines run through the name of decedent’s wife as a major beneficiary, and through the clause directing the payment of $400 to Robert E. Edelman. Where decedent’s wife’s name had appeared, decedent has written above it the name “Stanley Schiffner”. In the line following, decedent drew a line through the pronoun “her” and wrote the word “his” immediately above, so that the second paragraph, after giving effect to the penciled lines drawn through the writing and to the insertions, now reads:

“Second. All my estate, real and personal, whatsoever the same may be and wheresoever located, I give and bequeath unto Stanley Schiffner and his heirs and assigns forever”. (Italics supplied).

The third paragraph, which provided what should be done in the event that decedent and his wife died in a common disaster, was completely stricken out by penciled-line obliteration.

The final paragraph as revised reads as follows:

“And lastly I nominate, constitute and appoint from Stony Creek Mills, Pa., Stanley Schiffner, above named, as the executor of this my last will and testament”.

In this paragraph the name “Herbert E. Edelman” was stricken out by penciled lines, and the words “from Stony Creek Mills, Pa., Stanley Schiffner” were inserted by decedent.

Apparently the date of the firjst will was also stricken out, but the lines drawn through the date, viz., November 21, 1947, have been removed by erasure or an attempt at erasure, leaving a smudge. It is clear however, that the instrument bore the date of November [19]*1921, 1947. And lastly, the instrument bears the signature of decedent and the two witnesses to the will. The signature to the will is unimpaired.

The second will offered for probate with the first will, is entirely in the handwriting of decedent. Decedent apparently had a will form before him when he wrote this instrument. The instrument declares it to be his last will and testament; the first paragraph then follows, in which decedent directs the payment of his just debts, funeral expenses, etc. The second item follows the form of the second item of the first will in this fashion:

“[Second] All my estate real and personal whatsoever the same may be and wheresoever located I give and bequeath unto”
“Third and lastly I nominate constitute and appoint as the executor of this my last will and testament. In witness whereof I hereunto set my hand and seal this 8th day of March 1952. Sined sealed published and declared by the undersined Harvey E. Edelman testator as and for his last will and testament in the presence of us who at his request have sined hereunto our names and witness Included in this will is money in Fogelsville Bank in my name. Also $1500.00 insurance in AAA if killed in auto accident.”

The second will bears the signature of decedent, with his address, “Breinigsville, R. 1 Pa. (Route 22)”. To the left of the signature and somewhat below it are these words: “Insurance policy of the Woodmen of the World Policy signed over to Geo. F. Jacoby to take care of my burial and expenses”.

Both instruments were found by a Mr. George Jacoby and Mr. and Mrs. Eckley Edelman in an envelope in a drawer in decedent’s one-room trailer on the day follow[20]*20ing his death. No question of fraud is involved. The question is solely one of whether the instruments as found are the duly executed last will and testament of decedent and as such should be probated.

Appellant-proponent makes two contentions: One, that the first instrument with its alterations and interlineations made by decedent himself, is his executed will, and by making the alterations and interlineations he intended them to be and become part of his will; and that by placing interlineations therein, he reéxecuted his will. He relies on the Estate of John W. Pilhorn, Deceased, 12 Payette 93. His second contention is that the instrument dated March 8,1952, while called a will by decedent, is in fact a codicil, and that the alterations in the original paper, having been made prior to the execution of the codicil, the original paper as altered is by the codicil republished and validated, and the will speaks from the date of the codicil. This, he contends, is especially so since the second will did not expressly cancel or revoke the earlier instrument and was not inconsistent with it. In short, he is contending that the first instrument is the will, and the second instrument a codicil, and that they must be construed together as one instrument.

On the other hand, the appellees contend that the interlineations in the first will were not executed in accordance with the Wills Act of April 24,1947, P. L. 89, and therefore are invalid. They also contend that the later writing is a valid will and as such supersedes and revokes the earlier instrument.

The Wills Act of April 24, 1947, P. L. 89, sec. 4, 20 PS §180.4, provides:

“No will shall be valid unless proved by the oaths or affirmations of two competent witnesses”.

Section 5 of the same act, 20 PS §180.5, provides:

“No will or codicil in writing, or any part thereof, can be revoked or altered otherwise than:
[21]*21“ (1) Will or codicil. By some other will or codicil in writing.
“ (2) Other writing. By some other writing declaring the same, executed and proved in the manner required of wills, or
“(3) Act to the document. By being burnt, tom, canceled, obliterated, or destroyed, with the intent and for the purpose of revocation, by the testator himself or by another person in his presence and by his express direction. If such act is done by any person other than the testator, the direction of the testator must be proved by the oaths or affirmations of two competent witnesses.”

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Bluebook (online)
84 Pa. D. & C. 16, 1953 Pa. Dist. & Cnty. Dec. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edelman-estate-paorphctlehigh-1953.