Rhodes Will

160 A.2d 532, 399 Pa. 476, 1960 Pa. LEXIS 475

• Court: Supreme Court of Pennsylvania
• Decided: May 4, 1960
• Docket: Appeals, Nos. 17 and 18
• Status: Published

Opinions

Opinion by

Mb. Justice Benjamin R. Jones,

Decedent, aged 83 years and a resident of Westmoreland County, died on January 12, 1959 survived by a brother, Benjamin II. Rhodes, and a sister, Nora R. Kiner, the present appellants.

The validity of decedent’s will — allegedly executed on January 2, 1959 while decedent was in a hospital— is attacked in this proceeding. In this will decedent made four pecuniary bequests of $10,000 each, respectively, to his brother, Benjamin H. Rhodes, to his sister, Nora R. Kiner, to a friend, Vance E. Booher, Jr., and the Presbyterian Church of McVeytown, Pa.; all the residue of his estate he gave in trust to .the Presbyterian Church of McVeytown, Pa.¹

Prior to the presentation for probate of this will appellants filed caveats with the Register of Wills of Westmoreland County. Apparently by certification of the Register,² the Orphans’ Court of Westmoreland County heard this matter.³ After hearing, that court dismissed the caveats and directed the Register to probate the will. The present appeals were taken from that decree.

The validity of the will is attacked on four grounds: (1) that the will was not properly executed under Section 2(2) of the Wills Act of 1947; 4 (2) that the will was not properly proved under Section 4 of the Wills Act of 1947,⁵ supra; (3) that the will was procured by undue influence; (4) that decedent lacked testamentary capacity.

Initially, we must determine whether this will, to which the decedent affixed his mark, was executed in' compliance with Section 2(2) of the Wills Act of 1947, supra, which provides: “Signature by mark. 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.” To comply with this statutory provision a proponent of this type of will must prove: (1) the inability of the testator to sign his name for any reason; (2) that the marls was made by the testator; (3) that, either before or after the testator made his mark, his name was subscribed; (4) that the subscription of testator’s name took place in his presence; (5) that when testator made his mark two witnesses were present; (6) that these witnesses signed their names to the will; (7) that the subscription of the witnesses’ names took place in the testators presence. Section 2(2) sets forth what must be proven to validate a will executed by mark.

On the other hand, Section 4 of the Wills Act of 1947, supra, sets forth, how the requisite facts under Section 2(2) must be proven. Section 4 provides: “(a) General rule. ..., no will shall be valid unless proved by the oaths or affirmations of two competent witnesses”. (Emphasis supplied). This section sets forth in statutory form the well-established and salutary rule in the law of wills known as the “two witness rule”: Asay v. Hoover, 5 Pa. 21, 33; Grabill v. Barr, 5 Pa. 441, 445; Kelly’s Estate, 306 Pa. 551, 160 A. 454; James’ Estate, 329 Pa. 273, 198 A. 4; Orlady’s Estate, 336 Pa. 369, 9 A. 2d 539; Morris Will, 349 Pa. 387, 37 A. 2d 506; Cohen Will, 356 Pa. 161, 51 A. 2d 704; Walkiewicz Will, 392 Pa. 310, 140 A. 2d 589. Chief Justice Gibson in Hock v. Hock, 6 S. & R. 47 succinctly stated this rule: “Proof of execution must be made by two witnesses, each of whom must separately depose to all the facts necessary to complete the chain of evidence, so that no link in it may depend on the credibility of but one”. More recently the rule was concisely stated by Mr. Justice (later Chief Justice) Steen in James’ Estate, supra (p. 275) : “There must be a strict compliance with these statutory provisions, and a will is not valid unless executed precisely in accordance therewith. If executed by mark, it is not a lawful instrument unless testator’s name was subscribed in his presence and by his direction and authority: Hunter’s Estate, 328 Pa. 484. . . . But, . . ., the facts that such direction was given and that testator’s name was subscribed in his presence must be proved, under the act, by two or more competent witnesses, each of whose testimony must be complete, independently of the other’s, as to the existence of those circumstances and the performance of those acts which the statute requires to exist and to be done as conditions essential to the validity of the will”. As a safeguard against possible fraud in the execution of wills the “two witness rule” needs no defense at this late date.

While the validity of a will requires proof from two witnesses, such witnesses may be nonsubscribing as well as subscribing provided their competence be established: Carson’s Appeal, 59 Pa. 493; Novicki v. O’Mara, 280 Pa. 411, 124 A. 672; Morris Will, supra; Cohen Will, supra; Walkiewicz Will, supra.

When this will was executed, three persons — Vance E. Booher, Sr. (the scrivener), H. E. Holloway and Margaret B. King — were present. All three persons testified that decedent made his mark, that the mark was made in their presence, that Mrs. King and Mr. Holloway signed their names as subscribing witnesses and that such subscription took place in decedent’s presence. It is undisputed that decedent’s physical condition was such that he was unable to sign his name. However, neither of the subscribing witnesses could testify to the circumstances surrounding the subscription of the decedent’s name, who made it, when it was made or whether it was made in the decedent’s presence. Mrs. King stated that she did not know who wrote the name Cloyd M. Rhodes on the will or the words “his mark” above and below the place where the mark appears. Mr. Holloway stated that he could not recall whether Cloyd Rhodes’ name had been written before he entered decedent’s room or whether it was written while he was there. Attorney Booher, the scrivener, testified that he wrote “Cloyd M his mark Rhodes” on the paper in decedent’s presence.

In its opinion the court below stated: “If the testator’s name is subscribed out of his presence, the execution of the Will is faulty. The testimony of the scrivener is that the decedent’s name was subscribed in his presence but the two subscribing witnesses testified to the effect that they do not remember this detail. The Act requires only that the mark be made in the presence of two subscribing witnesses and, in this case, they so testify. The Act, however, does not require that the subscribing witnesses should necessarily observe or testify to the subscription of the testator’s name in his presence, nor does the Act provide for any specific manner in which this-act should be done, or require any specific proof: Walkiewicz Will, 392 Pa. 310”. In view of Section 4, supra, with this conclusion of the court below we must disagree.

Walkiewicz Will, supra,, is not apposite. In Walkiewicz two subscribing witnesses testified that testatrix made her mark but were unable to testify that testatrix’ name was subscribed to the will in her presence. However two non-subscribing witnesses testified that testatrix’ name was subscribed to the will in her ;presence. The thrust of the attack on the validity of the Walkiewicz will was that proof of the subscription of testatrix’ name in her presence came from non-subscribing rather than subscribing witnesses, and Walkiewicz simply held that such proof could come from non-subscribing witnesses. Walkiewicz neither held that such proof was unnecessary nor that such proof on the part of only one witness was adequate.

In Kelly’s Estate,⁶ supra, the will was allegedly executed while testatrix was in the hospital and two subscribing witnesses testified that they saw testatrix make her mark and identified their own signatures as witnesses but could not. testify that they saw the testatrix’ name subscribed to the instrument. The proponent offered to prove by the testimony of one witness, the scrivener, that he had affixed the name of testatrix to the will prior to the making of her mark and such subscription took place in testatrix’ presence. The trial court sustained an objection to such testimony on the ground that, even though the one witness should so testify, such testimony alone would not meet the legal probative requirements. This Court affirmed that action on the part of the trial court.

In Orlady’s Estate, supra, when the testatrix made her mark to the will and codicil three persons — testatrix, the scrivener and testatrix’ physician — were present. The scrivener testified that he wrote testatrix’ name on the will before she made her mark but the physician was unable to testify that he saw testatrix’ name affixed to the will. Mr. Justice Linn, speaking for this Court, stated (p. 376) : “The proof of the proponent therefore fails to bring the transaction within the requirements of the Wills Act”.

Hughes’s Estate, 286 Pa. 466, 471, 133 A. 645 and Hunter’s Estate, supra, are illustrative of the importance placed by this Court on the affixation of a testator’s signature in his presence.

In Bregy, Intestate, Wills and Estates Acts of 1947, the identical problem herein presented was considered: “Suppose, for example the scrivener can testify that he subscribed testator’s name to the document in testator’s presence and the subscribing witnesses can testify that they saw testator make his mark in their presence and that they subscribed their own names in his presence. The proviso in clause (2) of section 2 would be satisfied in such a case, but proof under the general provisions of section 4 would be defective, because only one witness (the scrivener) testified that the testator’s name was subscribed in the testator’s presence”, (p. 2311).

In yieAV of the legislative mandate that “No will shall' be valid” without proof thereof by two competent witnesses the testimony herein presented falls short of proving the validity of this will in that only one competent witness was able to prove that testator’s signature was affixed to this will in his presence and, accordingly, the probate of this will must be set aside.⁷

In view of the conclusion we have reached it is unnecessary for us to consider the questions of testamentary capacity or undue influence.

Decree reversed. Costs placed on the estate.

1 Decedent having died within thirty days after he executed this will, the gifts to the church are invalid: Wills Act of 1947, Act of April 24, 1947, P. D. 89, §7(1), 20 PS §180.7. As a result, even if the will is valid, decedent’s entire estate, with the exception of the pecuniary bequest to Vance E. Dooher, Jr., would go to the appellants under the terms of the will and the intestate laws.

2 The record is not clear in this respect.

3 The parties did not demand a trial by jury and the Orphans’ ' Court acted as the ultimate trier of the facts.

4 Act of. April 24, 1947, P. L. 89, §2, 20 PS §180.2.

5 Id., §4, 20 PS §180.4.

6 In respect to the requirement that the testator’s name must be subscribed to the will in his presence, Section 2(2) of the Wills Act of 1947, supra, and Section 3 of the Wills Act of 1917, Act of June 7, 1917, P. L. 403, 20 PS §192 are alike, although the latter Act required further that such subscription be at the direction and authority of the testator. Decisions under the 1917 Act are therefore apposite.

7 As Chief Justice Gibson observed in Long v. Zook, 13 Pa. 400, 402: “It may have been hard that a blunder of the penman should deprive a testator of his right to dispose of his property by will; but it is to be considered that this right is a positive, not a natural one; that it is surrounded with guards only to protect the testator himself; that it can be enjoyed only on the conditions annexed to it; and that there is no equitable relief against the words of a statute". (Emphasis supplied).