In re Brantlinger's Estate

• Decision Date: 25 May 1965
• Citation: 210 A.2d 246,418 Pa. 236
• Parties: In re ESTATE of Nan BRANTLINGER, Deceased. Appeal of Ellen Brantlinger SULLIVAN, sole heir at law and Contestant to the purported last Will and Testament of decedent.
• Court: Pennsylvania Supreme Court

210 A.2d 246

418 Pa. 236

In re ESTATE of Nan BRANTLINGER, Deceased. Appeal of Ellen Brantlinger SULLIVAN, sole heir at law and Contestant to the purported last Will and Testament of decedent.

Supreme Court of Pennsylvania.

May 25, 1965.

Fisher, Ruddock & Simpson, John S. Simpson, Indiana, for appellant.

R Carlyle Fee, Indiana, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN O'BRIEN, and ROBERTS, JJ.

ROBERTS, Justice.

This controversy comes to us on appeal from a decree of the Orphans' Court of Indiana County directing the admission to probate of an instrument dated December 13, 1962, as the will of Nan Brantlinger, deceased. ^[1] Appellant is the granddaughter and sole heir at law of decedent, as well as a substantial beneficiary under the contested will. ^[2]

When the will was executed, Mrs. Brantlinger was 81 years old and obviously showed her advanced age. Approximately a year and a half prior to signing her will, testatrix was hospitalized for treatment of a painful bursitis condition. Apparently Mrs. Brantlinger found her hospital confinement as distressing as her physical ailment and evidenced her displeasure by un-co-operative and disruptive conduct.

In October of 1961, testatrix was taken from the hospital by her brother (proponent of the will) and his wife ^[3] and placed in the home of Mrs. Morallo Berry, a practical nurse, who took care of Mrs. Brantlinger until her death in 1964.

In late Fall of 1962, Mrs. Berry contacted Joseph N. Mack, Esquire, an attorney of her acquaintance, and requested that he come to her home to prepare a will for Mrs. Brantlinger. ^[4] After ascertaining Mrs. Brantlinger's age and the reason for her confinement in Mrs. Berry's home, Mr. Mack agreed to come but suggested that decedent be examined by a doctor prior to his visit.

On December 13, 1962, a day after decedent had been examined by a doctor and found by him to be competent, Mr. Mack went to the Berry home. ^[5] Upon his arrival he was presented with some notes containing Mrs. Brantlinger's wishes for the disposition of her property. ^[6] Mr. Mack carefully went over these notes with Mrs. Brantlinger, ascertaining the nature of her property and the identity of her intended beneficiaries, and suggesting contingencies which he felt should be considered and provided for in the will.

After Mr. Mack concluded his conference with testatrix and prepared the will, the instrument was signed by Mrs. Brantlinger and attested to by Mr. Mack, Ruth O. Berry and Margaret I. Bowen, the latter two being residents in the Berry home. ^[7]

Although it was conceded that testatrix executed the will by affixing her signature to the instrument, Miss Berry and Miss Bowen refused to sign the affidavit of probate, stating that at the time Mrs. Brantlinger signed the will, she was senile, did not fully understand and was not, in their opinion, competent. For this reason, appellant maintains that the proponent of the will failed to 'prove' the will by the statutorily required two witnesses.

The so-called 'two witness rule' is manifested in Section 4(a) of the Wills Act ^[8] which provides:

'General rule. * * * no will shall be valid unless proved by the oaths or affirmations of two competent witnesses.'

In addition, the Register of Wills Act ^[9] directs:

'All wills shall be proved by the oaths or affirmations of two competent witnesses, and * * * In the case of a will to which the testator signed his name, proof by subscribing witnesses, if there are such, shall be preferred to the extent that they are readily available, and proof of the signature of the testator shall be preferred to proof of the signature of a subscribing witness.'

Citing cases which deal with proof of the execution of the will, ^[10] appellant contends that a will is not proved unless the two attesting witnesses to the execution of the will also attest to testator's mental capacity. Because two attesting witnesses refused to attest to testatrix's mental capacity, appellant argues that the proponent of the will has failed to satisfy the 'two witness rule', that further investigation into decedent's mental capacity at the time she signed her will is therefore precluded, and that the will, being unproved, must be denied probate. Considered in the light of the statutory law and subjected to the scrutiny of reasoned analysis, however, such an interpretation of the 'two witness rule' cannot prevail.

Reduced to its most basic premise, appellant's argument must stand or fall on the determination of whether, in addition to proof of testator's execution of the will by two competent witnesses, 'proof' of a will must also include certification, either express or implied, by those same two witnesses, of testator's mental capacity at the time the will was executed. If that is a required element of such proof, then appellant's position is well taken. On the other hand, if it is not essential that the attesting witnesses make an affirmative representation of testamentary capacity in order to establish prima facie 'proof' of a will, then it cannot be said that simply because they make a negative representation at probate the will must, ipso facto, fall.

We think it clear that proof of a will does not require any representation of testamentary capacity from the attesting witnesses. ^[11] Appellant makes the mistake of equating the proof of a will with the probate of a will but the two are not always the same. Generally, it is true that once the execution of the will is proved by the necessary two witnesses, a presumption of testamentary capacity arises and, in the absence of a contest, the will is admitted to probate. In those instances, therefore, proof of the will also meets the requirements for probate. But that is not the situation here. In this case the execution of the will has been provided, yet its probate has been subjected to challenge. Appellant's contentions go not to proof of the will but to its validity for purposes of probate. ^[12] To sustain her position on that score, however, appellant must overcome, by clear, strong, and compelling evidence, Gold Will, 408 Pa. 41, 51, 182 A.2d 707, 712 (1962); Masciantonio Will, 392 Pa. 362, 379, 141 A.2d 362, 370 (1958), the presumption of testamentary capacity which arose when the execution of the will was proved by the required two witnesses. Far from being a new rule, this principle has been stated in the decisions of this Court for over a century. See, e. g., Kerr v. O'Donovan, 389 Pa. 614, 634, 134 A.2d 213, 222 (1957); King Will, 369 Pa. 523, 87 A.2d 469 (1952); Sturgeon Will, 357 Pa. 75, 53 A.2d 139 (1947) and cases cited therein at 81-82, 53 A.2d at 142; Rees v. Stille, 38 Pa. 138 (1861). ^[13]

The issue was faced many years ago in Rees v. Stille, 38 Pa. 138 (1861), a case which involved the validity of a codicil to a will. One attesting witness testified to the fact of execution and also to the testator's mental capacity. The second witness testified to the execution of the codicil but stated that the testator was unconscious at the time. Against the contention that the will was not proved by the two subscribing witnesses and that the third subscribing witness should have been called, the trial court held that the execution of the codicil was proved by two witnesses and that the question of testamentary capacity was then for the jury to determine. This Court affirmed, saying:

'But proof of the facts necessary to constitute authentication is not to be confounded with proof of mental soundness, or freedom of the will.' 38 Pa. at 143.

The Court further observed:

'Why then was not the fact of execution proved, at least sufficiently to justify the court in submitting it to the jury? Because, says the plaintiff in error, the same witness testified that Mr. Towar was unconscious when he made the signature. But was the court to disregard the proof of the fact of signature, because the witness denied the existence of mental capacity? That was an entirely different matter, a matter excluisvely for the jury, in regard to which the testimony was contradictory.' 38 Pa. at 144.

The purpose of the 'two witness rule' is to establish that the testator actually executed the will, thereby insuring against the disposition of his property by means of a forged instrument introduced under circumstances in which decedent is unable to protect his own interests. As we have noted, once the execution of the will is proved, the mental capacity of a testator is presumed. This presumption arises from proof of testator's signature and not from any express or implied verification of testator's mental capacity by the attesting witnesses. Cf. Farmer Will, 385 Pa. 486, 488, 123 A.2d 630, 632 (1956); McNitt's Estate, 229 Pa. 71, 73, 78 A. 32, 33 (1910); Thompson v. Kyner, 65 Pa. 368, 378 (1870).

Our conclusion is compelled by the pertinent statutory provisions and the decisions of this Court. The Register of Wills Act ^[14] makes it patently clear that the 'proving' of a will is simply the process by which the authenticity of testator's signature is established. The Act provides that if the subscribing witnesses are not readily available, then, with a will signed by testator, proof of testator's signature is to be preferred to proof of the signature of the subscribing witnesses. However, if proof of a will required, as appellant must contend, an express or implied affirmation of testator's mental capacity by the subscribing witnesses, then surely proof of the signature of the testator alone could never be sufficient to prove a will.

That proof of a will does not rest upon the attestation of the subscribing witnesses as to testator's mental capacity is further supported by our cases. We have held that when dealing with a will signed...