Pavlinko Will

148 A.2d 528, 394 Pa. 564, 1959 Pa. LEXIS 379

Opinions

Opinion by

Mr. Justice Bell,

Vasil Pavlinko died February 8, 1957; his wife, Hellen, died October 15, 1951. A testamentary writing dated March 9, 1949, which purported to be the will of Hellen Pavlinko, was signed by Vasil Pavlinko, her husband. The residuary legatee named therein, a brother of Hellen, offered the writing for probate as the will of Vasil Pavlinko, but probate was refused. The orphans’ court, after hearing and argument, affirmed the decision of the register of wills.

The facts are unusual and the result very unfortunate. Vasil Pavlinko and Hellen, his wife, retained a lawyer to draw their wills and wished to leave their property to each other. By mistake Hellen signed the will which was prepared for her husband, and. Vasil signed the will which was prepared for his wife, ehch instrument being signed at the end thereof. The lawyer who drew the will and his secretary, Dorothy Zinkham, both signed as witnesses. Miss Zinkham admitted that she was unable to speak the language of Vasil and Hellen, and that no conversation took place between them. The wills were kept by Vasil and Hellen. For some undisclosed reason, Hellen’s will was never offered for probate at her death] in this case it was offered merely as an exhibit.

The instrument which was offered for probate was short. It stated:

“I, Hellen Pavlinko, of . . ., do hereby make, publish and . declare this to .be my

Footnotes

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* Last Will and Testament, . . .”

In the first paragraph she directed her executor to pay her debts and funeral expenses. In the second paragraph she gave her entire residuary estate to “my husband, Vasil Pavlinko . . . absolutely”.

She then provided: “Third: If my aforesaid husband, Vasil Pavlinko, should predecease me, then and in that event, I give and bequeath: (a) To my brother-in-law, Mike Pavlinko, of McKees Bocks, Pennsylvania, the sum of Two hundred ($200.00) Dollars, (b) To my sister-in-law, Maria Gerber, (nee Pavlinko), of Pittsburgh, Pennsylvania, the sum of Two hundred ($200.00) Dollars, (c) The rest, residue and remain der of my estate, of whatsoever kind and nature and wheresoever situate, I give, devise and bequeath, absolutely, to my brother, Elias Martin, now residing at 520 Aidyl Avenue, Pittsburgh, Pennsylvania.

“I do hereby nominate, constitute and appoint my husband, Vasil Pavlinko, as Executor of this my Last Will and Testament.” It was then mistakenly signed: “Vasil Pavlinko [Seal]”.

While no attempt was made to probate, as Vasil’s will, the writing which purported to be his will but was signed by Hellen, it could not have been probated as Vasil’s will, because it was not signed by him at the end thereof.

The Wills Act of 1947 provides in clear, plain and unmistakable language in §2: “Every will shall be in writing and shall be signed by the testator at the end thereof” with certain exceptions not here relevant. The court below correctly held that the paper which recited that it was the will of Hellen Pavlinko and intended and purported to give Hellen’s estate to her husband, could not be probated as the will of Vasil and was a nullity.

In order to decide in favor of the residuary legatee, almost the entire will would have to be rewritten. The court would have to substitute the words “Vasil Pavlinko” for “Hellen Pavlinko” and the words “my wife” wherever the words “my husband” appear in the will, and the relationship of the contingent residuary legatees would likewise have to be changed. To consider this paper — as written — as Vasil’s will, it would give his entire residuary estate to “my husband, Vasil Pavlinko, absolutely” and “Third: If my husband, Vasil Pavlinko, should predecease me, then ... I give and bequeath my residuary estate to my brother, Elias Martin.” The language of this writing, which is signed at the end thereof by Vasil Pavlinko, is unambiguous, clear and unmistakable, and it is obvious that it is a meaningless nullity.

While no authority is needed to demonstrate what is so obvious, there is a case which is directly in point and holds that such a writing cannot be probated as the will of Vasil Pavlinko. This exact situation arose in Alter's Appeal, 67 Pa. 341. The facts are recited in the unanimous opinion of the Court, speaking through Mr. Justice Agnew (page 344) : “This is a hard case, but it seems to be without a remedy. An aged couple, husband and wife, having no lineal descendants, and each owning property, determined to make their wills in favor of each other, so that the survivor should have all they possessed. Their wills were drawn precisely alike, mutatis mutandis, and laid down on a table for execution. Each signed a paper, which was duly witnessed by three subscribing witnesses, and the papers were enclosed in separate envelopes, endorsed and sealed up. After the death of George A. Alter, the envelopes were opened and it was found that each had by mistake signed the will of the other. To remedy this error the legislature, by an Act approved the 23rd day of February 1870, conferred authority upon the Register’s Court of this county to take proof of the mistake, and proceed as a court of chancery, to reform the will of George A. Alter and decree accordingly. . . . Was the paper signed by George A. Alter his will? Was it capable of being reformed by the Register’s Court? The paper drawn up for his will was not a will in law, for it was not ‘signed by him at the end thereof,’ as the Wills Act requires. The paper he signed was not his will, for it was drawn tip for the will of his wife and gave the property to himself. It was insensible and absurd. It is clear, therefore, that he had executed no will, and there was nothing to be reformed. There was a mistake, it is true, but that mis take was the same as if he had signed a blank sheet of paper. He had written his name, but not to his will. He had never signed his will, and the signature where it was, was the same as if he had not written it at all. He therefore died intestate, and his property descended as at law.” The Court further decided that the Legislative Act was void because it had no power to divest estates which were already vested at law on the death of George A. Alter without a will.

How firmly and without exception the courts have • carried out the provisions of the Wills Act, when the language thereof is clear and unmistakable, is further evident from the following authorities: Bryen’s Estate, 328 Pa. 122, 195 A. 17; Churchill’s Estate, 260 Pa. 94, 103 A. 533; Gray Will, 365 Pa. 411, 76 A. 2d 169.

In Bryen’s Estate, 328 Pa., supra, a testator received from his lawyer a three page will. He wished to add an additional clause providing for a grandchild. The lawyer thereupon rewrote the last page “backed and bound together with brass eyelets the first, second and new third page, unnumbered, and inserted the original: third page loosely between the last of the fastened pages and the backer.” Bryen executed the loose sheet at the end thereof in the presence of two subscribing witnesses. He then placed the enclosure in his safe deposit box where it was found after his death. The Court held that the instrument could not be probated as Bryen’s last will because it was not signed at the end thereof in conformity with the statute, nor could any part or pages thereof be probated as his last will. This Court, speaking through Mr. Justice, later Chief Justice, Steen, said (page 128) : “The obvious truth of the matter is that the loose sheet was signed by mistake, .... While decedent’s mistake is regrettable, it cannot be judicially corrected; the situation thus created must be accepted as it exists: Alter’s Appeal, 67 . The question is not what a testator mistakenly thinks he is doing, but what he actually does: Churchill’s Estate, 260 Pa. 94, 100; Dietterich’s Estate, 127 Pa. Superior Ct. 315, 322, 323. It is of paramount importance to uphold the legal requirements as to the execution of wills, so that the possibility of fraud may be reduced to a minimum.”

In Churchill’s Estate, 260 Pa. 94, 103 A. 533, the Court refused to probate Churchill’s will, which was written by him. He failed to sign his name “at what was so clearly the end of the paper as a will. What he did do was to write his name in three blank spaces in the paper — first at the top and then in the testimonium and attestation clauses. ... he said to one of the two attesting witnesses, “Ihis is my will, I have signed it,’ and to the other, ‘I wish you to witness my name to a paper,’ and subsequently handed it to a physician, saying, “This is my will, and I want you to keep it for me,’ . . .

“The decedent may have thought he had made a will, but the statute says he had not. The question is not one of his intention, but of what he actually did, or rather what he failed to do. He failed to sign the paper at the end thereof, and this essential requirement of the statute is not met by the insertion of his name in his own handwriting in three blank spaces in the printed form of the paper which he may have intended to use in executing his will. 'It may happen, even frequently, that genuine wills, namely, wills truly expressing the intentions of the testators, are made without observations of the required forms; and whenever that happens, the genuine intention is frustrated by the act of the legislature, of which the genéral object is to give effect to the intention. The courts must consider that the legislature, having regard to all probable circumstances, has thought it best, and has therefore deter mined, to run the risk of frustrating the intention sometimes, in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the absence of forms. . . . ‘Our Act of 1833 as well as the statute of Viet, are in part borrowed from the British statute of frauds, two sections of which have been so evaded by judicial construction as to be practically repealed. We do not propose that the Act of 1833 shall meet with the same fate. The legislature have laid down a rule so plain that it cannot be evaded without a clear violation of its terms. No room is left for judicial construction or interpretation. It says a will must be signed at the end thereof, and that’s the end of it. We are of opinion that this paper was not a will within the meaning of the Act of 1833, and that it was error to admit it to probate.’ ”

In Gray Will, 365 Pa. 411, 76 A. 2d 169, testatrix signed her will “Mrs. Ella X (her mark) Gray. Witness: Fannie Graff.” Mrs. Anderson was also present and saw Mrs. Gray make her mark, but did not sign her name on the paper as a subscribing witness. The Court said (pages 414-415) : “The first question that arises is, was this writing of January 22, 1946, a will and if so, was it probatable as such? The learned trial judge found and we agree that this writing was testamentary in character: Davis’s Estate, 275 Pa. 126, 118 A. 645; Kimmel’s Estate, 276 Pa. 435, 123 A. 405; Wenz’s Estate, 345 Pa. 393, 29 A. 2d 13. It is however equally clear that even if it be a will, it is not a valid or probatable will. Section 2, sub-section 2 of the Wills Act of April 24,1947, P. L. 89 provides: ‘If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which. his name is subscribed in his presence before or after he makes his mark, shall be as valid as though he had signed his name thereto: Provided, He makes his mark in the presence of two witnesses who sign their names to the will in his presence’.”

This Court held that the instrument did not comply with §2 of the Wills Act of 1947 and could not be probated as Mrs. Gray’s will.

Once a court starts to ignore or alter or rewrite or make exceptions to clear, plain and unmistakable provisions of the Wills Act in order to accomplish equity and justice in that particular case, the Wills Act will become a meaningless, although well intentioned, scrap of paper, and the door will be opened wide to countless fraudulent claims which the Act successfully bars.

Decree affirmed. Each party shall pay their respective costs.

Italics throughout, ours.