In re Kisecker's Estate

• Decision Date: 27 March 1899
• Docket Number: 301
• Parties: Estate of Mattie Kisecker, deceased. Appeal of George W. Harter
• Court: Pennsylvania Supreme Court

42 A. 886

190 Pa. 476

Estate of Mattie Kisecker, deceased. Appeal of George W. Harter

No. 301

Supreme Court of Pennsylvania

March 27, 1899

Argued March 6, 1899

Appeal, No. 301, Jan. T., 1898, by George Harter, from decree of O.C. Franklin Co., on appeal from register of wills. Affirmed.

Appeal from register of wills.

The facts appear by the opinion of STEWART, P.J., which was as follows:

The instrument here offered for probate has certain features which make it peculiar, but these are unimportant. With respect to wills, mere matter of form is of little consequence; none at all, where independent of it, the testamentary purpose is sufficiently disclosed. It may be an aid to the discovery of the intention, where this is not at once discoverable; but where it is, the form signifies nothing. The law prescribes no particular formula for wills. "It is sufficient that the instrument, however irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property, and if this appears to be the nature of its contents, any contrary title or designation which he may have given it will be disregarded:" 1 Jarman on Wills, p. 33. The essential feature of a will is that it directs the posthumous destination of the maker's property. A gift or conveyance of a present interest in the property is wholly inconsistent with testamentary purpose, and it is this feature of the instrument before us (construing the language used by its ordinary acceptation), that is most strongly urged against its probate. The instrument reads as follows:

"I this day, the 18th of December, 1888, give all my property real and personal to Ruthy D. Long and Vesta A. Long, but I am to have the use of all so long as I live, and I to pay all the taxes and keep up repairs and after my death Ruthy D Long and Vesta A. Long is to have full and free use of all my property, for value received."

It is urged on behalf of the contestant that there is neither uncertainty nor ambiguity in the language here used; that it expresses a purpose to grant and convey to the persons named a present right to the whole of the maker's estate subject to her own life estate therein; and that no case is presented for resort to collateral or extrinsic evidence to discover the maker's intention. If we have not been convinced of the correctness of this view, it is through no fault of the contestant's counsel. He has presented his side of the controversy with great ability, both in his oral argument and in the brief which he has submitted. We might agree with his first proposition, to the extent only however, that the language used in the instrument is apt enough to convey a present interest, were such object intended; but we cannot concede that it is so certain and direct as to necessarily exclude a testamentary intent. Judged by the language alone, that is, allowing the paper to speak for itself, either a present conveyance or a posthumous disposition may have been intended. The paper is no more inconsistent with the one than the other, while the terms used are such as are ordinarily employed in conveyances of present interest, yet considered connectedly and as a whole they seem to disclose a purpose that the instrument is not to take effect until after the death of the maker. Were we shut off from all considerations other than those to be found in the paper itself, we would allow this latter view to prevail as the expressed intention of the maker. What little extrinsic evidence there is is only confirmatory of this conclusion, and there is no reason whatever why it may not be considered. This latter would be true, even though the paper was susceptible of only one construction, and that the one urged upon us by the contestant. Without regard to the form, it is always competent to adduce extrinsic, collateral evidence to show that it was written and executed with testamentary intent. Instruments conforming to and described as deeds, indentures, articles of agreement, letters of attorney, have been established through extrinsic evidence as wills, and as such admitted to probate. It is sufficient to refer to such cases as Turner v. Scott, 51 Pa. 130, Patterson v. English, 71 Pa. 456, and Scott's Est., 147 Pa. 100, to show how such recourse is sanctioned by our own Supreme Court. We state the present case as strongly for the contestant as the facts will warrant when we say that judged by its contents, the instrument may be either a present conveyance or a will; that whatever the intent of the maker in this respect, the end she wanted to accomplish is so far sufficiently expressed that it may be intelligently observed and enforced. All that remains to decide is, what did the maker herself understand the paper to be, -- a conveyance of a present interest in her property, or one that was to take effect after her death? Nothing short of a positive and unequivocal expression from the maker herself could more strongly negative the idea of an intention to convey presently than the facts and circumstances disclosed in the evidence. This paper was written and executed by the maker ten years before her death. It was never delivered to any one, but remained to the end in her exclusive possession, not that it had been forgotten and was overlooked, for, until four or five days before her death, she had kept it where she must frequently have seen it, and in the very place of all others where one in her situation would be most likely to keep a will, and least likely to keep a deed, -- in her Bible. A very few days before her death, she directed an attendant to read it aloud in her hearing, and then to place it carefully away in some other place. To no one did she speak of it as her will, yet her retaining it in her possession in the manner she did, having it read over to her within a few days of her death, and then directing that it be put away in some safe place, such circumstances point unmistakably to the conclusion that she herself regarded it as a posthumous disposition of her property. The case of Tozer v. Jackson, 164 Pa. 384, shows very clearly that we do not give undue significance to these undisputed facts. In that case, as here, the contention was that the instrument might have been "intended only as a gift in the lifetime of the donor, and if so it could not be operative as a testament." The court held to the view that the language used imported a will rather than a deed, and entered into a lengthy examination of the facts and circumstances to see whether any other conclusion could there find support. Referring to the fact that the paper had never been delivered in the lifetime of the maker, the court uses this language: "It is manifest, therefore, that at the moment of the death of James Rogers the paper was in his possession, and that fact, alone, conclusively disproves the theory that he intended it to take effect in his lifetime. He had never delivered it, there was not a particle of evidence to that effect, and it was therefore inoperative as a gift in praesenti." There is just as little that is equivocal in language and facts of the present case as in that, and there the court in deciding that the paper was a will, say that "there is of necessity no room for any other...