Kehr Will

95 A.2d 647, 373 Pa. 473, 1953 Pa. LEXIS 334
CourtSupreme Court of Pennsylvania
DecidedMarch 23, 1953
DocketAppeal, No. 246
StatusPublished
Cited by36 cases

This text of 95 A.2d 647 (Kehr Will) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kehr Will, 95 A.2d 647, 373 Pa. 473, 1953 Pa. LEXIS 334 (Pa. 1953).

Opinions

Opinion by

Mr. Justice Bell,

Testatrix’s daughter appeals from a decrée of the Orphans’; Court which sustained an order of the Register of Wills,'which admitted decedent’s will to probate [475]*475and held an alleged revocation to be inapplicable and nugatory. The crucial question is: Was the testatrix’s will, dated August 7, 1942, revoked by the writing of the words “Null and Void” on a carbon copy of the will, together with the attendant and extrinsic circumstances?

Mrs. Kehr left her original will for safe-keeping with her attorney, Rowland C. Evans, Sr., and received from him and took home with her an exact carbon copy. The will gave testatrix’s estate principally to charities and contained no provision for the petitioner, who is testatrix’s only child.

Mrs. Kehr died on July 2, 1951, and Rowland C. Evans, Jr. probated her will of August 7, 1942, and qualified as executor. An exact carbon copy of the original will was found after Mrs. Kehr’s death in a bureau drawer in her bedroom. At the top of the first page of this unexecuted copy, in the blank space above the typewritten words of the will, she had written in ink the words “Null and Void” and under these words “S. H. K.” It was duly proved and the Court below found that the words “Null and Void” and the initials were all in decedent’s handwriting.

Did this show a revocatory intent and if so, what did the testatrix attempt to revoke? To answer these questions we must place ourselves in the armchair of the testatrix at the time of the alleged revocation and consider all the facts and circumstances surrounding her: Jackson’s Estate, 337 Pa. 561, 12 A. 2d 338; Britt Estate, 369 Pa. 450, 87 A. 2d 243.

In Jackson’s Estate, 337 Pa., supra, this Court said (pp. 565, 566) : “. . . in interpreting wills [or alleged revocatory writings] which do not unmistakably reveal the maker’s intention ... ‘You may place yourself . . . in the testator’s arm-chair and consider the circum[476]*476stances by which he was surrounded ... to assist you in arriving at his intention.’ See Jarman on Wills, 7th ed., 749.”

Mr. Evans testified that Mrs. Kehr did not have her original will because he had refused to deliver it to her until she paid him a fee for drawing it. This evidence was, under the aforesaid authorities, clearly admissible since it was one of the important facts and circumstances surrounding testatrix when she wrote the words “Null and Void” on the copy of her will.

Mr. Evans also testified that Mrs. Kehr wrote him two letters in the summer of 1946 (which he could not find) in which she stated that her will was null and void and had been cancelled; and that she intended to make a new will which would be prepared by Mr. Hermes. The testimony concerning testatrix’s intention to make a new will was corroborated by the finding of the Auditing Judge: “Other pencilled memoranda, in the handwriting of testatrix, appeared among her personal effects. These memoranda indicate that she was preparing data incident to the drawing of a new will. However, no such will was discovered.”

Whenever an instrument is ambiguous or the intention to will or to revoke is uncertain, acts, declarations and relevant circumstances are admissible to clarify or explain the ambiguity or to prove testator’s intention. This evidence of decedent’s acts and declarations and the relevant circumstances are therefore admissible under the facts in this case (1) as (corroborative) evidence of her intent to revoke when she used the words “Null and Void”; and (2) as an explanation of what the words “Null and Void” on the carbon copy referred to, i.e., her original will. Cf. Ford’s Estate, 301 Pa. 183, 195, 151 A. 789; Wenz’s Estate, 345 Pa. 393, 29 A. 2d 13; Koehler’s Estate, 316 Pa. 321, 323, 175 A. 424; Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20; [477]*477Commonwealth v. Truitt, 369 Pa. 72, 85 A. 2d 425; Jackson’s Estate, 337 Pa., supra.

“Statements tending to show intent are admissible in evidence although self-serving”: Smith v. Smith, 364 Pa. 1, 9, 70 A. 2d 630. Speaking of this type of evidence, Professor Wigmore in his treatise on Evidence (3rd Ed., Vol. 6, §1737) says: “But since the question is here merely one of the existence of a state of mind, may we not infer the testator’s then state of mind from his state of mind at a prior or subsequent time not too remote? . . . hence, as evidence of this prior or subsequent state of mind, utterances at the prior or subsequent time are admissible.” Just as the animus testandi is an indispensable ingredient of a will, so the animus revocandi is an indispensable ingredient of a revoking instrument: Cf. Wenz’s Estate, 345 Pa., supra.

Were all these facts and circumstances considered together sufficient to prove a revocation of the will of August 7, 1942?

The Wills Act of 1947 (April 24, 1947, P. L. 89, 20 PS 180.1 et seq.) provides: “Section 5. Revocation of a Will. — No will or codicil in writing, or any part thereof, can be revoked or altered otherwise than: (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

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95 A.2d 647, 373 Pa. 473, 1953 Pa. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kehr-will-pa-1953.