Fallon's Estate

63 A. 889, 214 Pa. 584, 1906 Pa. LEXIS 700

• Court: Supreme Court of Pennsylvania
• Decided: March 19, 1906
• Docket: Appeal, No. 12
• Status: Published

Opinion

Pee Curiam,

Impressed with the sincerity of the belief both of appellant and her counsel in the justice of her claim, we have examined this case with a disposition to view it favorably. But we are obliged to agree with the court below that the testimony does not come up to the legal requirements of a second witness, and that to hold the will established would make a dangerous departure from the precedents under the settled rule.

The will made in 1895 was last seen in the possession of the testator. The presumption, therefore, arises that it was destroyed by him, animo revocandi: Deaves’s Estate, 140 Pa. 242; Stewart’s Estate, 149 Pa. 111. The presumption is strengthened by rather unusual testimony to testator’s methodical habits, tending to show the improbability of the will having been accidentally lost. . In 1904, the year before his death, he expressed his desire to Calvert to make a will, and in 1905 to his wife in the presence of Miss Rocap he repeated his wish rather urgently. The only fact tending to rebut the presumption is his apparent acquiescence in the reminder by his wife that he had a will, made after the birth of his youngest child. But “ after that ” according to the testimony of Miss Rocap, “ he tried to persuade Mrs. Fallon -to sit down and write a will for him, and she persuaded not, and left the room. All Mr. Fallon said was that he would like to make a will; then he would say, ‘ No, I won’t do it now, I will .just save my strength; ’ he had so much confidence of getting well that he tried to save his strength.” The repeated recurrence by him to the subject, never expressed in the form of a desire to make a “ new ” will but always to make “ a will ” tends to show that he did not consider that he was leaving an operative will but thought one necessary. The conflicting inferences that may be drawn from the testimony on this point prevent the circumstances from supplying the place of the second witness which the established rule requires.

But even if the existence of a will at the time of testator’s death should be conceded, the only proof of its contents is by one witness and she interested. The testimony as to the making and contents of previous wills, offered to show a settled plan of testamentary disposition, all comes from the same witness. The testimony of Calvert as to testator’s instructions for a will in 1904 distinctly excludes reference to any prior will and is confined to a prospective will which he desired to make. While tending to render the supposed contents of the will of 1895 probable, it is not proof of anything more than an unexecuted intent. However clear such intent be it is not enough.

Decree affirmed.