Hall Will

166 A.2d 644, 402 Pa. 212, 1961 Pa. LEXIS 357

Opinions

Opinion by

Me. Chief Justice Jones,

The question raised on these appeals is whether the court below erred in refusing to award an issue devisavit vel non with respect, primarily, to the testamentary capacity of the decedent at the time she executed her alleged will on June 20, 1955. The answer depends upon whether a substantial dispute exists, under the evidence adduced at the hearing before the chancellor, with respect to the decedent’s testamentary capacity at the critical time.

The long established rule as to when a party in interest has a right to a jury trial of an issue of fact concerning the validity of a testamentary writing is now embodied in §745(a) of the Act of August 10, 1951, P. L. 1163, as amended, 20 PS §2080.745(a), as follows: “When a substantial dispute of fact shall arise concerning the validity of a wilting alleged to be testamentary, any party in interest shall be entitled to a trial of this fact by a jury . . . .” It devolves upon us, therefore, to review all the evidence of record, both oral and documentary, and determine whether or not a substantial dispute of fact does exist as to the decedent’s mental capacity understandingly to execute a will at the time she signed the testamentary writing in controversy.

The testimony at the hearing in the court below very definitely discloses that in 1953, Mrs. Hall, the decedent, then being upwards of eighty years old, began to fail mentally to a very noticeable degree; that her mental deterioration was apparently hastened by the death of her husband in 1954; and that her impaired mentality worsened until, in the spring of 1955, it was such as to alarm her friends and neighbors. A number of them testified that by that time Mrs. Hall was in an advanced stage of senility. They related relevant and pertinent facts and circumstances concerning Mrs. Hall’s changed appearance, conduct and condition in support of their assertions as to her evident mental debility. It was during this period, viz., April of 1955, that one Elton Gillow, of the village of Equinunk, Wayne County, where Mrs. Hall also resided, called L. B. Nielsen, an attorney at Honesdale, some 20 miles distant, and asked him to come to Gil-low’s home for the purpose of drafting a will for Mrs. Hall, who, up to that time, had been wholly unknown to attorney Nielsen. Mrs. Hall had been acquainted with Gillow for a long time. In fact, he had been a mail carrier at the post office of which she, at an earlier period, had been postmistress for about twenty years; also her late husband was a half-brother of Gillow’s wife.

Pursuant to Gillow’s request, Mr. Nielsen met Mrs. Hall at Gillow’s home in April, 1955, and obtained from her a list of names of certain persons with addresses and amounts pertaining to suggested bequests to be made. Gillow was to be named executor of her will. Mr. Nielsen was unable, however, at that time to secure from Mrs. Hall the information which he deemed necessary for a bequest to Gillow and for the disposition of a certain farm which she owned. Nor did he then secure from her any information concerning the size of her estate or the disposition which she might wish to make of the residue. Mr. Nielsen departed without having drafted a will for Mrs. Hall’s signature and did not see her again until two months later after she had become a patient (during what proved to be her last illness) at the Wayne County Memorial Hospital in Honesdale, to which she was admitted on June 4, 1955.

According to the testimony of Mrs. Hall’s physician, Dr. Howard It. Patton, at the time she was admitted to the hospital she was “a critically ill patient,” suffering from cerebral arteriosclerosis and manifesting increasingly baleful symptoms of senility. Shortly after her admission to the hospital, Mr. Nielsen told persons in contact with Mrs. Hall at the hospital of the uncompleted will and asked that he be notified when, as and if, she improved sufficiently to see Mm. A couple of days later, Nielsen was twice informed that Mrs. Hall was improved but, on each occasion, when he arrived at the hospital shortly thereafter, he found her unable to converse with him intelligently. His candid testimony, as a witness for the proponents, goes far to confirm that, in truth, a very disputable issue, as to whether Mrs. Hall was mentally capable of making a will at any time while she was in the hospital, exists. Concerning his two above-mentioned visits to the hospital to see her, as a result of having been summoned, Mr. Nielsen testified, “[Dr. Patton] told me from his examination that morning, if I would come up, she would be able to talk these matters over with me, and I went up about two hours later and Mrs. Hall, I believe, was in the ward in an oxygen tent, and I brought a copy of this paper along with me, and I said, ‘Mrs. Hall, do you remember me?’ and she was in a very weakened condition and I couldn’t tell whether she did recognize me or not. I talked to her for a few minutes and I could see her mind was rambling and she was not in any condition to discuss legal matters at all — it had been an hour or an hour and a half between the time I was called and the time I got up there — and I told the nurse if she thought the next day she was better, or the next time she felt she was better, to have me come up. So I went up the next day and I found her in the same condition and I left.” Commendably enough, nothing was done by Mr. Nielsen, as a result of those visits, looking to the preparation of a will for Mrs. Hall.

The next time Mr. Nielsen saw Mrs. Hall was on June 17th when he went to the hospital as a result of having been contacted, “around the 15th” by Mr. Gil-low and Mr. Pethiek, the superintendent of the hospital, who was concerned that the nurses’ bills had not been paid and that the hospital had not been paid. When Mr. Nielsen had first been told about this, “around the 15th”, he had said, “I don’t see if she is not in better condition than when I saw her what can be done about it, but I will inquire what the situation is.” He got in touch with a bank where Mrs. Hall had an account and “suggested that they send down a check . . . and if Mrs. Hall became lucid that the check could be presented to her and explained to her that these bills had to be paid, but that did not work out.” Then it was that on June 17th he was called up from the hospital and told that Mrs. Hall was mentally alert and that they felt he could discuss the matter of the nurses and the hospital bills with her. Continuing, Mr. Nielsen testified, “When I talked to her, I felt she knew me, she recognized me, she remembered I was up at Equinunk that night and I told her there was a problem here about the nurses. I said, ‘Miss Lorenz and the other nurses have not been paid and’ that ‘these girls must be paid as soon as possible,’ and if she wanted me to that I could [prepare] a power of attorney, which would be limited to purely the matter of paying . . . her medical bills and hospital bills, and, after I explained that to her and she said that was what she wanted, I then went down to my office and prepared it and brought it up.” Mrs. Hall signed it in the presence of two nurses, who witnessed it, and a local justice of the peace took her acknowledgment of it. Why Mr. Nielsen did not then also bring to Mrs. Hall’s attention the matter of her uncompleted will does not affirmatively appear. But, there is ample evidence to support a strong inference why nothing whatever was said about a will at that time. On the very same day (June 17th), Mr. Nielsen, accompanied by Mr. Cfillow, went to the home of an aged cousin of Mrs. Hall, living at Honesdale, where he informed the cousin that he had been trying unsuccessfully to complete a will for Mrs. Hall and stated that in her present condition she was obviously incompetent to make a will. He asked tbe cousin to stand by for news of Mrs. Hall’s death and, then, to come to his office for the purpose of having an administrator of Mrs. Hall’s estate appointed.

On the morning of June 20th, in response to a call, Mr. Nielsen went to the hospital and talked to Mrs. Hall about her will. This, it will be noted, was the first time he had attempted to do so since her admission to the hospital on June 4th. As already pointed out, on two of his prior visits for the purpose of discussing a will with her, he had avowedly found Mrs. Hall incompetent to consider a will and, on his third visit, the subject of a will, significantly, had not even been mentioned. However, on June 20th, Mr. Nielsen, after talking to Mrs. Hall, returned to his office and there drafted a will which he caused to be typed and which he took, a little later, to the hospital and handed to Mrs. Hall’s nurse, Miss Helen Lorenz. He asked Miss Lorenz to read the will to Mrs. Hall, which Miss Lorenz testified she did while Mr. Nielsen and Mr. Pethick, the hospital superintendent, awaited in the hallway outside of the door to Mrs. Hall’s room. After the nurse had finished reading the will, Mrs. Hall signed it and Miss Lorenz and Mr. Pethick signed it as subscribing witnesses. This was between 11:30 and 11:40 a.m. on June 20th. After some specific bequests, the will left the residue of approximately $50,000, roundly 70% of the decedent’s estate, in equal shares, to the Equinunk Methodist Church (of which Mrs. Hall was not a member and which she did not attend) and the Wayne County Memorial Hospital (an institution to which she had theretofore steadfastly refused to contribute).

After the will had been executed, Mr. Nielsen placed it in the safe in Mr. Pethiek’s office in the hospital. Shortly thereafter, Mr. Nielsen went back to the hospital, took the will from the safe and, without see ing Mrs. Hall again or conferring with her in any way, carried the will back to his office where he caused a codicil to be typed on the back of it. He then returned to the hospital, about 1:15 p.m., and gave the will, bearing the added codicil, to Mr. Pethick for Mrs. Hall’s execution of the codicil, instructing Mr. Pethick at the time to “explain to Mrs. Hall why she should sign the codicil.” There is no evidence that anyone ever explained to Mrs. Hall why she should sign the codicil or made known to her its purposes and possible effect. Mrs. Hall signed the codicil at the request of her nurse, Miss Lorenz, who, with the supervising nurse, Mrs. Henrietta L. Young, signed as subscribing witnesses to the codicil. Miss Lorenz testified that she could not remember who brought the codicil to Mrs. Hall’s room; nor could she remember what time this occurred, although, as she recalled, it was not long after the will had been signed. Mrs. Young, the other subscribing witness to the codicil, was on vacation at the time of the hearing in the court below and, consequently, was not called to testify.

The codicil provided that, in the event of Mrs. Hall’s death within thirty days, the bequest to the Equinunk Methodist Church and the Wayne County Memorial Hospital should be paid “to Louis B. Nielsen, Jr., & W. D. Pethick, whom I believe will carry out my wishes.” This dispositive provision of the codicil never became effective. Mrs. Hall died on July 28, 1955, more than thirty days after the will had been executed.

Testamentary capacity is to be determined by a testator’s mental condition at the time current with the execution of the will: Skrtic Will, 379 Pa. 95, 100, 108 A. 2d 750; Williams v. McCarroll, 374 Pa. 281, 293, 97 A. 2d 14; Lewis Will, 364 Pa. 225, 231, 72 A. 2d 80; Dichter Will, 354 Pa. 444, 448-449, 47 A. 2d 691. What constitutes testamentary capacity was well defined in Lewis Will, supra, at p. 232, as follows: “A decedent possesses testamentary capacity only if he has a full and intelligent knowledge of the act in which he is engaged and of the property he possesses, together with an intelligent perception and understanding of the disposition he wishes to make of Ms property and of the persons and objects he desires to participate in his bounty [citing cases].”

In view of the unrefuted testimony concerning the progressive and patently evident mental incompetence of the senile testatrix in the instant ease, it seems not only clear but beyond dispute that, for some time prior to the maMng of the disputed will, Mrs. Hall was mentally incapable of transacting business. Witness the necessity of having her execute a power of attorney on June 17th in order that her overdue bills for nurses and hospital could be paid. In Cressman Estate, 346 Pa. 400, 404, 31 A. 2d 109, Mr. Chief Justice Maxey declared for a unanimous court that “The Court below correctly held: ‘Where a will was properly executed in every particular, a presumption of testamentary capacity and lack of undue influence arises, compelling evidence to upset the will, since the law favors its validity, unless it appears that the testator for some time prior to its execution has been mentally incapable of transacting business, in which event the burden of proof is on the proponent of the contested will.’ ” (Emphasis supplied.)

The proponents, in an effort to meet the burden of establishing that Mrs. Hall possessed testamentary capacity at the time of the preparation and execution of her will on June 20, 1955, offered the testimony of Mr. Nielsen, the scrivener, Dr. Patton, the decedent’s attending physician, and Miss Lorenz, her nurse. Nielsen testified that, when he talked to her about her will on the morning of June 20, 1955, she realized the import of what she was doing, the extent and nature of her estate, was aware of the identity of her relatives, and discussed the matter of her will with him intelligently. Miss Lorenz testified that, at a time shortly before Mr. Nielsen arrived at the hospital on the morning of June 20, 1955, Mrs. Hall’s “breathing was much better, and that was the first time she had been alert since being in the hospital at any time, and her color was much improved . . . .” She also stated that, after she had read the will to Mrs. Hall, the latter “seemed satisfied; she understood and she was very alert.” But, Miss Lorenz immediately qualified this statement by adding the plainly comparative observation. “I mean, that is the most alert I have ever seen her.” She had seen the patient only since she had been admitted to the hospital two weeks earlier in an advanced stage of senility.

Dr. Patton was not present when Mr. Nielsen discussed the will with Mrs. Hall, nor was he or Mr. Nielsen present when the will was read to her and signed by her. He testified that he had examined Mrs. Hall about 9:30 or 10 a.m. on June 20th and that, later in the day at the request of Mr. Nielsen, he had made the following entry in Mrs. Hall’s hospital chart. “Have today found Mrs. Hall to be clear and lucid in her thought and content of her thoughts. She is aware of her location in the hospital and her status as a patient in the hospital. She at this time is perfectly capable of making her last Will and Testament.” Dr. Patton admitted that this was the only time in his approximately 20 years of active practice that he had ever made such an entry in a hospital chart. He also re-examined Mrs. Hall early in the afternoon of June 20th, again at the request of Mr. Nielsen, and testified that, “Her condition at the time of the second examination seemed to be just the same as when I saw her previously. I am talking about her mental condition.” Dr. Patton added that Mrs. Hall realized who she was, that she was in the hospital and understood the import of her acts of that day. On cross-examination, the doctor, reading from the hospital notes prepared by the attending nurses of Mrs. Hall for June 20, 1955, confirmed that from 1 to 4 a.m. her pulse was 104 (60 to 90 being normal) and was of poor quality and that she was complaining of severe pain in the right lower kidney region; that at 7:30 a.m. her lips and finger tips were cyanotic (blue) and that she vomited and her breathing was labored; that at 8 a.m. the nurse had been unable to arouse her, her face and arms were very flushed and she was placed in an oxygen tent; that, at 9:30 a.m. she had difficulty in swallowing; and that at 10 a.m. she was “turned from side to side” and was “very alert at present; asked for bed pan and knows that she is in the Wayne Memorial Hospital.” That her “alertness” was merely relative in her extreme senile condition is all too evident.

Considering the testimony of the witnesses as a whole, and in view of the fact that the burden of affirmatively establishing testamentary capacity is, under the evidence in this case, on the proponents of the will, it is not possible for a chancellor to say, as a matter of law, that Mrs. Hall, at the time she signed her will, possessed a full and intelligent knowledge and understanding of the property she possessed and a rational conception of the disposition she wished to make of it by will or of the persons and objects she desired to share in her testamentary bounty. A jury’s verdict against the will could not justly be set aside by the court. There is present, therefore, in this case a substantial dispute of fact concerning Mrs. Hall’s testamentary capacity on June 20, 1955, which should have impelled the award of an issue devisavit vel non and the chancellor’s failure so to do is reversible error.

The appellants’ remaining assignment of error, relative to asserted undue influence, is not supported by evidence sufficient of itself to raise a substantial dispute of fact concerning the validity of the alleged will.

The decree is reversed, at the estate’s costs, and the record remanded for trial by jury of the issue of fact whether or not at the time of the decedent’s execution of her purported will on June 20, 1955, she was a person of sound mind and possessed of testamentary capacity.