Fleming's Estate

109 A. 265, 265 Pa. 399, 1919 Pa. LEXIS 569

• Court: Supreme Court of Pennsylvania
• Decided: October 6, 1919
• Docket: Appeal, No. 184
• Status: Published

Opinions

Opinion by

Mr. Justice Walling,

This appeal is by a proponent from the decree of the orphans’ court revoking the probate of a will and refusing to grant an issue devisavit vel non. Joseph K Fleming, a resident of Pittsburgh, died June 29, 1909, at the age of sixty-four years, unmarried and without issue. He left an estate of about $200,000 and as his next of kin remote collateral relatives. He had destroyed a will three weeks prior to his death, and, on proof of intestacy, letters of administration were granted upon his estate. In the fall of 1916 there was presented for probate a paper as follows:

“Pittsburgh, Pa., June 23, 1909.

“I, Joseph K. Fleming being of sound mind and under-j stand do make my last will and testament- revoking all other wills heretofore made.

“I direct that my just debts and funeral expenses be paid.

“I also direct that $10,000 dollars be paid to Mrs. Mar-|shell Brown, I do this through request of my sister, Jane.

“I will the balance of my personal property and all of my real estate and belongings to Clara Bell Fleming of Butler, Pa., and I direct that Clara Bell Fleming take good care of the Fleming valt in the Allegheny cemetry.

“I also direct that none of the McCauleys nor any of my mothers kin shall have one dollar of my property, real or personal.

“I also direct that Flora Josephine Fleming shall not have any of my property.

“I hereby appoint Clara Bell Fleming of Butler, Pa., | and W. J. Gillmore of Pittsburgh, Pa., to execute my will.

“Signed and sealed this 23rd day of June 1909.

“Joseph K. Fleming. [Seal.]

“Signed and sealed in the presence of

“W. J. Gilmore,

“B. B. Baum,

“J. J. Moore.”

After a contest, in which testimony was submitted by proponents only, the register admitted it to probate, and the contestants, as Mr. Fleming’s next of kin, thereupon took an appeal to the orphans’ court, on the contention that the purported will was a forgery. From a decree of that court, sustaining such contention, Clara Belle Fleming, the principal beneficiary thereunder, brought this appeal.

Each side submitted to the orphans’ court a large amount of evidence; that for proponents included the testimony of Mrs. Mary Jane McCauley to the effect that, in the spring of 1910, while residing in the Fleming homestead, she found the will, also a copy thereof, and $50 in a tin box concealed in the chimney of an abandoned fireplace, and kept the will until September, 1916, when she left it in the office of appellant’s attorney. Meantime two of the alleged witnesses, Gilmore and Baum, had died; but their signatures and also the signature and handwriting of Mr. Fleming (the will purporting to be holographic) were identified by bankers and others qualified to express opinions thereon. Mr. Moore, the third witness, testified to having subscribed his name thereto in the presence of Fleming and Gilmore. Proponents also called Mr. Malone, a handwriting expert, who expressed the opinion that the document and signatures were genuine; however, he qualified his testimony somewhat on cross-examination.

In 1910 appellant employed one Frank U. Morton on a percentage basis to look after her interest, whatever it might be, in the estate in question, which he proceeded to do; and about 1915 caused an action of ejectment to be brought on behalf of herself and sister, for the Fleming real estate, on the assertion that they were the nearest heirs of decedent. However, in August, 1916, a month before that case was listed for trial, they became satisfied that such suit must fail, as there were others more closely related to Mr. Fleming. Shortly after this discovery it was intimated that he left a will, under which appellant was a beneficiary, that had been surreptitiously destroyed ; and in the following month (September, 1916) her petition was presented in the ejectment suit praying for leave to amend her claim so as to base it on the lost will. At the same time there was a further intimation that the will had been found and a few days later it was left at the attorney’s office, Morton meantime having secured genuine signatures of Gilmore and Baum. He had borrowed from Samuel Dempster a receipt with Gilmore’s genuine signature, and when returned it showed the marks of a sharp instrument as if the signature had been traced; and of that signature Gilmore’s name as a witness to the will is practically a reproduction. The latter when examined under a microscope shows carbon along the edges and bears every mark of being a traced signature. Just ten days after the will purports to have been executed, Mr. Gilmore, a man of undoubted character, went before the register, made oath that Fleming had died intestate and was one of the parties to whom letters of administration were first granted. The conclusion is unavoidable that his signature to the will is a forgery. The evidence as to the spurious character of Baum’s signature, standing by itself, is less convincing.

A careful examination of the record leads to the firm conviction that Mr. Fleming neither wrote nor signed the will in question. He died suddenly and to the end was in full possession of his faculties. He was a good English scholar, had been a telegraph operator and was an excellent speller; yet the will contains five misspelled words, all simple, and two being the names of intimate friends. Aside from that the will is not in his handwriting. This appears not only from the opinions of experts and of lay-witnesses familiar with his writing but clearly from a comparison of the will with specimens of his genuine penmanship; in fact the will bears no marked resemblance to his handwriting. The word “Fleming” appears nine times in and upon the will, all strikingly similar, yet none of them appears to resemble any one of his many genuine signatures in evidence. The will on its face bears evidence of having been written with a studied effort and not naturally. It is not in harmony with Mr. Fleming’s expressed intentions as to the disposition of his estate. It was his cherished purpose, often mentioned, to establish a home for crippled children by the devise of his residence for that purpose, with a proper endowment to equip and maintain the same, but that is not found in this will. Appellant’s kinship to him was remote and while naturally she might be remembered in his will, and he had probably said she would be, he had never, so far as appears, declared an intention of making her his principal beneficiary, nor was there any reason why he should do so. Mrs. Brown was a friend of the family and the legacy to her was probably inserted as a makeweight to support the will which purports to give what amounts to 95 per cent of the estate to appellant.

Mr. Fleming had kept his former will in the bank with other valuable papers and, as he was an intelligent man of good judgment, the suggestion that he would keep liis will, disposing of a $200,000 estate, concealed in a chimney, where it might easily he destroyed or never discovered, is highly improbable; as is the weird story of Mrs. McCauley about guarding the will so carefully for a year and a half and then placing it with a dress in a trunk and forgetting all about it for years and then unable to recall where it was until accidentally discovered, etc. Considering all the circumstances, including her own admissions of wrong-doing, the court below was justified in disregarding her testimony.

On behalf of proponents, Moore and Morton account for the presence of carbon on the signatures of Gilmore and Baum by saying they were first written in pencil and then traced in ink, and Mrs. McCauley states that she thoughtlessly traced them in pencil while in possession of the will; but neither explanation is convincing. There was also the testimony of Mrs. Lamker that Mrs. McCauley had shown her the will on several occasions; also other evidence that the will was seen before Morton obtained the signatures as above stated. There was evidence that Gilmore and Baum made declarations to the effect that they were witnesses to Mr. Fleming’s will. Mrs. McCauley refers to an unposted letter, which she says she found under the carpet, written by Mr. Fleming to appellant on the day of his death, and making reference to a will radically different from the one here at issue. The real question is not whether he made a new will but whether he made this will. The contention that he made another will, if true, does not prove that this one is genuine. Such other will may have been lost or destroyed. The court below saw and heard the witnesses and their explanations of the numerous photographs and other exhibits, a decided advantage especially in weighing testimony depending largely upon reasons shown and demonstrations made, and found the will was a forgery, and that on the entire evidence a verdict in its favor could not be sustained; hence, it set aside the probate and refused to grant an issue as prayed for by proponents.

The case was well considered and in our opinion properly decided. A dispute as to the facts such as to require the granting of an issue, under the Act of March 15, 1832, P. L. 146,4 Purdon (13th ed.) p. 4088, must be a substantial dispute and the evidence, considered as a whole, must be such as would sustain a verdict in favor of the party praying for the issue. Such party is usually the contestant but the rule is the same as to either side, and, where the trial judge after a careful review of all the testimony would feel constrained to set aside a verdict, if in favor of one side, as contrary to the manifest weight of the evidence, the issue should be refused. See Conway’s Est., 257 Pa. 314; Roup’s Est., 236 Pa. 31; Puller’s Est., 222 Pa. 182; Knauss’s App., 114 Pa. 10; Harrison’s App., 100 Pa. 458. To grant an issue the evidence must.be such as would sustain a verdict for either party, otherwise there is no substantial dispute upon a material question of fact. See Phillips’s Est., 244 Pa. 35, 44; Wilson v. Mitchell, 101 Pa. 495. A prima facie case upon one side may be so overcome by opposing proof as to leave no substantial dispute: Sharpless’s Est., 134 Pa. 250, 259.

In a will contest the judge sits as a chancellor (Roberts v. Clemens, 202 Pa. 198; McCormick v. McCormick, 194 Pa. 107) and must consider all the evidence; and the question is not whether a part of the evidence, standing alone, would support a certain verdict but whether it would considered as a whole: Keller v. Lawson, 261 Pa. 489. “In every case tried before a jury in which the trial judge sits as a chancellor, the evidence is addressed to him quite as much as to the jury — it must as a whole be judged by him independently of the jury — must satisfy his (legal) conscience as well as the jury— and cannot be rightfully submitted to the jury as a basis of any finding which he would not approve; in a word, he cannot permit the jury to do what he as a chancellor (after weighing the evidence in the light of the established law upon the subject) would not do”: Phillips’s Est., supra, p. 42; Caughey v. Bridenbaugh, 208 Pa. 414, 415; Robinson v. Robinson, 203 Pa. 400.

The right to an issue under the statute depends upon whether there is a substantial dispute upon a material matter of fact, and, unless there is, the proponent is no more entitled to an issue on a question of forgery than is the contestant on a question of testamentary capacity. The statute does not confine the dispute to any particular question. See Fuller’s Est., supra; Douglass’s Est., 162 Pa. 567; Sharpless’s Est., supra. The orphans’ court within its jurisdiction is a court of equity (Johnson’s App., 114 Pa. 132, 139), although not technically so called, and proceedings therein on will contests are, as a rule, equitable in form and substance. The usual grounds upon which such contests are based, to wit, “lack of testamentary capacity,” “undue influence,” “fraud” and “forgery” are of equitable cognizance; and for either, when satisfactorily proven, chancery may decree the cancellation of a written instrument. Fraud, of which forgery is a glaring example, is one of the principal grounds of equity jurisdiction, and, as a general rule, equity may decree the cancellation of a written instrument found to be a forgery: 9 Corpus Juris, 1195; 4 Ruling Case Law, p. 498; Penna. Co. for Ins. on Lives, etc., v. Franklin Fire Ins. Co., 181 Pa. 40; Leigh v. Everheart’s Ex’r, 16 Am. Dec. (Ky.) 160-162; Mactavish v. Kent, 122 Mich. 242; Cutler v. Fitzgibbons, 148 Cal. 562; Ritterhoff v. Puget Sound Nat. Bank, 37 Wash. 76 (107 Am. State Rep. 791) ; Vannata v. Lindley, 92 Am. State Rep. (note), p. 272; and see Eckman v. Eckman, 55 Pa. 269, 273.

When a court is considering the validity of written instruments as affected by undue influence, fraud, forgery or incapacity, it is considering equitable questions where in jury trials are not, and were not when our first state constitution was established, a matter of right; and its declaration that “trial by jury shall be as heretofore,” has no application to cases where such trial was not then demandable: Smith v. Times Pub. Co., 178 Pa. 481; Byers and Davis v. Com., 42 Pa. 89, 94; Van Swartow v. Com., 24 Pa. 131, 133; W. Va. P. & P. Co. v. Public Service Com., 61 Pa. Superior Ct. 555, 568. And in England, until the court of probate was created by statute in 1857 (40 Cyc. 1248), wills were proven and will contests tried in the ecclesiastical courts, to which the right of trial by jury did not extend: Sharswood’s Blackstone, vol. 2 (Book III), pp. 61-65, 97-101. See also Chitty’s General Practice, vol. 1, pp. 522-524; 1 Williams on Executors, *236. “Unless provided by statute the parties to a contested will case have no right to a trial by jury”: 6 Am. & Eng. Enc. of Law (2d ed.), p. 979; and the same rule applies generally in probate courts: Ibid, p. 979; see also 24 Cyc. 104. Hence, the above cited Act of 1832, as construed by this court, deprives no one of a constitutional right. The fact that it has stood the test of eighty-seven years is strong persuasive evidence of its constitutionality.

In Crawford v. Schooley, 217 Pa. 429, relied upon by appellant, a will of the testator was duly probated; from which an appeal was thereafter taken to the orphans’ court on the ground that a will of later date had been found, and a request was made for an issue to determine the validity of the latter. After hearing, the petition for an issue was refused and the appeal dismissed by the lower court on a finding that the later will was a forgery. We held that as it had never been offered for probate the question of its authenticity was not before the orphans’ court and that the adjudication thereof was premature and coram non judice: and that the testimony of the subscribing witnesses made a prima facie case in its favor on which the orphans’ court should direct the register to open the probate of the earlier will, so that the one of later date might be offered for probate and its authenticity determined before the register and on appeal by the orphans’ court, etc. The question of the right of a proponent to an issue on the testimony of the subscribing witnesses was not before this court nor decided, as the appeal was from the probate of the earlier will. What was said as to that perhaps should have referred to such testimony making a prima facie case before the register and on appeal; for the right to an issue depends on the entire evidence and not on that of any particular witnesses.

In Douglass’s Estate, supra; Berg’s Est., 173 Pa. 647; Masson’s Est., 198 Pa. 636; Malunney’s Est., 208 Pa. 21, and Neil’s Est., 215 Pa. 464, after weighing conflicting evidence as to alleged forgery in a will, the courts below refused an issue, and we affrmed; while in Sharp-less’s Estate, supra, on a like charge, we reversed, stating that, “looking at the whole evidence as put before us in print, we do not think we can safely say the balance is not doubtful,” and significantly adding that the trial judge would, after hearing all the evidence, “still have the final result within his control”; also see Byerly’s Est., 258 Pa. 410, where the orphans’ court set aside the probate of a will on the ground that the testator’s signature had been forged. In the case last cited it is held that the orphans’ court has no power to grant an issue in a will contest, even on a question of forgery, unless there is a request therefor. However, in the present case there was a request for a jury trial but we are not prepared to hold that its refusal was error.

The assignments of error are overruled and the decree is affirmed at the costs of appellant.