Kling Estate

12 Pa. D. & C.2d 588, 1956 Pa. Dist. & Cnty. Dec. LEXIS 288
CourtPennsylvania Orphans' Court, Montgomery County
DecidedNovember 14, 1956
Docketno. 57,068
StatusPublished

This text of 12 Pa. D. & C.2d 588 (Kling Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kling Estate, 12 Pa. D. & C.2d 588, 1956 Pa. Dist. & Cnty. Dec. LEXIS 288 (Pa. Super. Ct. 1956).

Opinion

Taxis, P. J.,

This estate comes before the court upon certification by the register of wills that a difficult and disputable question has arisen as to the grant of letters. The record so certified by the register of wills indicates that on December 12, 1955, Joseph Kling, Jr., petitioned the register of wills for letters of administration upon the assets comprising the estate of his father, Joseph Kling, Sr., who died on November 16, 1955, a resident of Upper Moreland Township, Montgomery County. On December 17, 1955, Helen J. Jones, daughter of decedent, [590]*590filed a caveat with the register of wills against the granting of letters of administration to Joseph Kling, Jr. On January 26, 1956, Joseph Kling, Jr., petitioned the register of wills for probate of a writing alleged to be the last will and testament of Joseph Kling, Sr., and for letters of administration c. t. a. That writing contained on page 70 of journal notebook reads as follows:

“Joseph Kling Jr.
“If anything happens to me take over it is yours my wife Helen Ruth gets nothing
Your Father Pop”

No further steps were taken by the register of wills . aside from certifying this record to the orphans court on June 11, 1956.

On June 14, 1956, counsel for proponents and for the caveators filed a stipulation in which they agreed that the questions to be resolved by the court are:

1. Is the above writing testamentary in character?

2. Is it “signed by the testator” within the meaning of section 2 of the Wills Act of April 24, 1947, P. L. 89?

3. Does the writing effectively specify disposition of the corpus of decedent’s estate?

Hearings on these questions were held on July 6, July 20 and July 27, 1956.

Is This Writing Testamentary in Character?

Blackstone defined,a will as a “legal declaration of a man’s intentions, which he wills to be performed after his death”, and this definition is still the law of Pennsylvania. Thus a writing is testamentary in character if it appears that it was decedent’s purpose to make a posthumous gift. I have little difficulty in concluding that the language of the above disputed writing indicates that such was decedent’s intention. The words “if anything happens to me” are a clear [591]*591indication of testamentary intent and have been so construed by the Supreme Court in Kimmel’s Estate, 278 Pa. 435. Although the writing is an informal paper in the nature of a note addressed to the son of decedent, the informal character of the writing is merely an element in determining testamentary character. The informality becomes a matter of no importance when it appears that decedent’s purpose was to make a posthumous gift: Kauffman Will, 365 Pa. 555, 557; Kisecker’s Estate, 190 Pa. 476. In addition, the proponent in this case is fortified in his position by the presumption against intestacy: Walker Estate, 376 Pa. 16.

Although it is apparent that the writing on its face is testamentary, in an abundance of caution extrinsic evidence was heard pertaining to the testamentary character of the writing and its consequent appropriateness for probate and also to aid the court in determining whether testator had made an effective testamentary disposition. “. . . if we find that the disputed paper was written by the decedent, intending that it should be her will it is probatable, with its meaning a matter of will construction, even though, when construed, it may not constitute an effective testamentary disposition. Burtt Will, 353 Pa. 217; Tranor’s Estate, 324 Pa. 263”: Kauffman Will, supra, 561.

From the extrinsic evidence adduced, it was established that the disputed writing was found on page 70 of a book in which decedent kept a record of all his important transactions, for example, the record of his wages, names and birthdates of his children, and a list of certain bonds. In addition the location of the book is significant. The book was found in decedent’s bedroom on a shelf with other important papers all of which were kept under lock and key. It would seem natural to conclude that this location would be appro[592]*592priate for storage of decedent’s will as well as for his other important records.

Caveators called several witnesses to testify that decedent on various occasions had stated that he had no will. Other witnesses indicated that testator had made contrary statements to them. The conflict is unimportant in view of the established principle of law that if a writing is in legal effect a will, understanding of testator to the contrary is immaterial: Thompson Will, 375 Pa. 193.

In view of the nature of the writing in question and the extrinsic evidence adduced at the hearing I conclude that the writing is testamentary in character. Is the Writing “Signed by the Testator” Within the

Meaning of section 2 of the Wills Act of 191,7?

Section 2 of the Wills Act of April 24, 1947, P. L. 89, reads in parts pertinent:

“Every will, . . . shall be in writing and shall be signed by the testator at the end thereof. . . .”

It is unnecessary for a testator to sign his full name at the end of a will in order to make it effective. The test is whether or not what is offered as a purported signature was made by testator with the intent that such be his signature. It is apparent from the writing that the word “Pop” appears “at the end thereof”. The question then is simply whether testator intended that the word “Pop” be his signature. Extrinsic evidence is admissible to aid in such determination: Kehr Will, 373 Pa. 473.

There is no doubt that the word “Pop” is in the same handwriting as the other words appearing in this holographic will. There is a conflict in the testimony as to whether decedent referred to himself as “Pop” or by other appellations such as “Dad” or “your father”. This conflict is understandable in light of the family relationships existing between decedent, the [593]*593proponent and the caveators of this will. Joseph Kling, Jr., the proponent, and his sister, Kay Kling Boerner, were the children of decedent by his first marriage, which was dissolved by the death of decedent’s, wife. Decedent apparently referred to himself to both, of the children of this first wife as “Pop”. When decedent remarried, this custom was changed with regard to the children born of the second marriage. To them decedent referred to himself as “Dad”. It was only natural that when addressing Joseph, Jr., in this disputed writing that decedent referred to himself as “Pop”. I conclude, therefore, that when decedent placed the appellation “Pop” at the end of this writing he intended it to be his signature. The provisions of section 2 of the Wills Act of 1947 have been satisfied.

Does the Writing Effectively Specify Disposition of the Corpus of Decedent’s Estate?

The key to determining whether or not this writing is dispositive are the words “it is yours”. The question is simply, what did testator mean by the word “it”? This pronoun, standing alone, conveys no meaning whatsoever. It is only the juxtaposition of this word to others in the same context that lends any significance to this term. If at all possible it cannot be assumed that testator intended the word to be a superfluity and therefore treated as a nullity.

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Related

Walker Estate
101 A.2d 652 (Supreme Court of Pennsylvania, 1954)
Burtt Will
44 A.2d 670 (Supreme Court of Pennsylvania, 1944)
Hart v. Stoyer
30 A. 497 (Supreme Court of Pennsylvania, 1894)
Estate of Kisecker
42 A. 886 (Supreme Court of Pennsylvania, 1899)
Kimmel's Estate
123 A. 405 (Supreme Court of Pennsylvania, 1924)
Kauffman Will
76 A.2d 414 (Supreme Court of Pennsylvania, 1950)
Kehr Will
95 A.2d 647 (Supreme Court of Pennsylvania, 1953)
Thompson Will
100 A.2d 69 (Supreme Court of Pennsylvania, 1953)

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12 Pa. D. & C.2d 588, 1956 Pa. Dist. & Cnty. Dec. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kling-estate-paorphctmontgo-1956.