In re Estate of Laurin

424 A.2d 1290, 492 Pa. 477, 1981 Pa. LEXIS 697

• Court: Supreme Court of Pennsylvania
• Decided: February 4, 1981
• Docket: No. 80-1-65
• Status: Published

Opinions

OPINION

KAUFFMAN, Justice.

This is an appeal by the grandchildren of Frances Lucy Laurin (“testatrix”), from a final decree of the Orphans’ Court Division of the Court of Common Pleas of Allegheny County dismissing their exceptions to the probate of a writing dated March 16, 1978.¹

The specific issue before us is whether the court below correctly determined that a validly executed informal writing using only non-testamentary language in the present tense was the last will and testament of the testatrix. Because the record adequately supports the conclusion that testatrix intended the writing to be testamentary, we affirm.

On November 6, 1974, testatrix executed a formal will in which she left her entire estate equally to her two daughters, Beatrice L. Sprowls (“Beatrice”)² and Virginia F. Fleming (“Virginia”). In the event that one or both of the primary beneficiaries predeceased testatrix, the will provided for distribution of the estate to her surviving grandchildren per stirpes.³

On September 11, 1976, Virginia predeceased testatrix, leaving as survivors her three children, Susan L. Fleming, Richard E. Fleming, and Lori M. Fleming, appellants herein. Following the death of testatrix on April 22, 1978, the Register of Wills (“Register”) admitted the November 6, 1974 will to probate. However, a later inconsistent writing, dated March 16,1978 and signed at the end by testatrix, was discovered among her personal effects.⁴ Therein, she gave “all properties and personal belongings” to her daughter, Beatrice. Appellants, beneficiaries under the prior will, appealed from the Register’s admission of this informal document to probate, challenging its testamentary character. After a hearing before the Orphans’ Court, their appeal was dismissed. The court en banc, concluding that the document was testamentary on its face, thereafter dismissed appellants’ exceptions, and this appeal followed.

The March 16, 1978 writing provides in its entirety:

March 16, 1978

I, Frances L. Laurin, give all properties and personal belongings to my daughter Beatrice L. Sprowls Denk.

/s/ Frances L. Laurin

The circumstances surrounding the document here in question may be stated briefly. At the time of its preparation, testatrix was 73 years of age and in poor health.⁵ She lived with and was cared for by Beatrice for several months prior to her death. Occasionally, a neighbor, Janet Brian (“Janet”), also cared for her. Janet testified that on one such occasion, testatrix declared that she had a great deal of property, “that she had a lot to take care of with the death of her daughter [and] with Betty’s [Beatrice’s] remarriage,” and that she wanted everything to go to Beatrice.⁶ She also expressed a wish to see a lawyer in order to attend to these matters. Although Janet typed the contested writing for testatrix, she did not witness its execution. Beatrice first learned of the writing only after testatrix’ death when informed of its existence by Janet.

Appellants challenge the testamentary character of the March 16, 1978 writing, contending that the use of non-testamentary language in the present tense renders it ambiguous, and that the court below erred in failing to consider extrinsic evidence to resolve the ambiguity. They argue further that consideration of such evidence would show that testatrix merely intended to make either a present gift or a memorandum to her attorney.⁷

In Kauffman’s Will, 365 Pa. 555, 558, 76 A.2d 414, 417 (1950), this Court adopted guidelines to be followed where the testamentary character of a writing is challenged:⁸

In all cases of this kind where a paper is proposed for probate and its testamentary character is denied, it becomes the duty of the Court in the first instance to examine the paper, its form and its language, and therefrom determine as a matter of law whether or not it shows testamentary intent with reasonable certainty. If testamentary intent is satisfactorily revealed from such an examination by the Court, the paper should be probated as a will.

On the other hand, if, from such examination, the paper is shown not to be a testamentary disposition, but is shown to be a document of another type, then it is not to be probated as a will. But, if, from such an examination, the Court should determine that a real doubt or real ambiguity exists, so that the paper offered for probate might or might not. be testamentary, depending upon circumstances, then it has been held on numerous occasions by the Appellate Courts that the document presents an ambiguity which will permit the use of extrinsic evidence in aid of resolving the uncertain character of the paper. (Citations omitted).

Although we found the language "i want you to have farm” to be ambiguous, we then considered the extrinsic evidence and concluded that it was in fact intended to be testamentary.⁹

An informal writing using present tense language similar to that now before us recently was held unambiguously testamentary in Estate of Logan, 489 Pa. 29, 413 A.2d 681 (1980). The disputed writing there provided:

“I here buy sent [sic] my hand and seal to any one enterseted [sic] to my estate, that I give all my monies & estates to my sister Lillian Grundman nee Logan as benefecesitay [sic] to all an [sic] any.

Your truly as ever

George T. Logan

The Same-Lillian Grundman

S.S. No. 198-03-7882 G.L.”

We found no need to consider extrinsic evidence in Logan because use of the words “estate” and “beneficiary”, along with the decedent’s manifest intent to divest himself of all his belongings, clearly evidenced a testamentary disposition.

Testatrix’ March 16, 1978 writing, however, contains no language indicating that it was drafted in contemplation of death or that it was intended to be testamentary. Use of the word “give” alone, absent other language indicative of a decedent’s intent to make either an inter vivos gift or a testamentary disposition, renders the writing ambiguous and necessitates consideration of extrinsic factors.¹⁰

While we do not agree with the court en banc that the March 16, 1978, writing is testamentary on its face, we nevertheless conclude, after reviewing the surrounding circumstances, that the court correctly held the writing to be testamentary.¹¹ It was prepared by testatrix while she was ill, only one month before her death and just eight days after she had been discharged from the hospital. Use of the language “all properties and personal belongings” demonstrates that testatrix intended to dispose of all of her worldly possessions. As she was living with Beatrice prior to the preparation of the writing, testatrix could have made delivery had she intended to make an inter vivos gift. Instead, she placed the writing, properly signed at the end, in a drawer, leaving Beatrice unaware of its existence until after her death.¹²

Thus, although we agree with appellants that the March 16, 1978 writing is not testamentary on its face, we nevertheless affirm the decree of the court en banc because the record adequately supports the conclusion that testatrix intended it to be her last will and testament.

Accordingly, the decree of the court below is affirmed with each party to bear own costs.

ROBERTS, J., filed a dissenting opinion in which LARSEN, J., joined.

1 . Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended April 28, 1978, P.L. 202, No. 53, § 10(4). 42 Pa.C.S.A. § 722(3).

2 . Beatrice L. Sprowls is now Beatrice L. Sprowls Denk.

3 . The will read in pertinent part:

I give, devise and bequeath all of my estate, be it real, personal or mixed, whatsoever and wheresoever the same may be situate at the time of my decease and all property over which I may then have the power of appointment unexercised, even though specific reference is not made thereto, unto my two children, BEATRICE L. SPROWLS and VIRGINIA F. FLEMING, to be divided equally between them, per stirpes and not per capita, so that if either of my children shall predecease me, leaving a child or children her surviving, then such child or children shall take the share that such deceased child of mine would have taken had she survived me, but in default of such child or children, then all to the survivor of my two children. (Emphasis supplied).

4 . The writing undisputedly was signed at the end by testatrix in accordance with Section 2502 of the Probate, Estates, and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, § 2, as amended, December 10, 1974, P.L. 867, No. 293, § 6. 20 Pa.C.S.A. § 2502.

5 . Testatrix had been in and out of the hospital during the several months prior to her death, and was discharged on March 8,1978, just eight days before the preparation of the document in question.

6 . Beatrice had remarried sometime after the execution of the 1974 will.

7 . Appellants do not here challenge testatrix’ testamentary capacity, nor do they raise any issue of undue influence, fraud or forgery. They contend only that the writing was not testamentary in language or intent.

8 . The writing there in dispute provided:

“dear bill

i want you to have farm

/s/ Annie Kauffman.”

9 . Decedent in Kauffman’s Will had suffered from a prolonged illness prior to preparation of the writing. Moreover, we noted that since there had been no delivery, the writing was legally inoperative as an inter vivos gift. See Estate of Chiara, 467 Pa. 586, 359 A.2d 756 (1976).

10 . The word “give” was used in Tozer v. Jackson, 164 Pa. 373, 30 A. 400 (1894), where the disputed language was, in effect, virtually identical to that now before us:

“High [sic] James Rogers do give to John Jackson Sr. my property known as Pen argyl Hotel and the land adjoining in Pen argyl in Northampton County P.A. /s/ James Rogers.”

Although the writing was found “testamentary on its face”, it is apparent from the opinion that the Court supported its conclusion with what now would be regarded as “extrinsic” evidence, rather than the independently testamentary character of the language. The decedent, who committed suicide, left the writing where it would be discovered immediately by those who found his body. As the disposition was one of real estate, and as the document had never been delivered to the named beneficiary, the Court further noted that it could not have been operative as an inter vivos transfer.

11 . It is apparent that, despite its conclusion that the writing was testamentary on its face, the court en banc did not disregard extrinsic evidence, for it went on to note alternatively that consideration of extrinsic evidence would have “required the same conclusion.” Affirmance is therefore appropriate. See McAleer v. Iceland Products, 475 Pa. 610, 381 A.2d 441 (1977).

12 . For other cases where this Court has found a testamentary disposition by considering extrinsic evidence to resolve an ambiguity created by present tense non-testamentary language, see Hengen’s Estate, 337 Pa. 547, 12 A.2d 119 (1940) (where we held testamentary a contested writing which read: “I want Mamie to have my House 544 George Street /s/M.L. Henge” after considering the fact that the decedent had been ill for a year and a half prior to the execution of the writing and the fact that since there had been no delivery, the document was ineffective as an inter vivos gift); Estate of Sedmak, 467 Pa. 379, 357 A.2d 142 (1976) (where we found testamentary a writing which read: “My Brother Mil Please see that Zella Portenar receives $5000 from my Savings account it is in the Western Saving Bank [sic] /s/ George A. Sedmak or Alexander Sedmak” after considering the fact that if the decedent had intended an inter vivos gift he would have made delivery of the passbook).