In re Brennan's Estate

Citation312 Pa. 335,168 A. 25
Decision Date22 May 1933
CourtUnited States State Supreme Court of Pennsylvania
168 A. 25
312 Pa. 335


Supreme Court of Pennsylvania.

May 22, 1933.

168 A. 25

Appeal No. 13, January term, 1934, from decree of Orphans' Court, Lackawanna County; M. F. Sando, President Judge.

In the matter of the estate of Winifred Brennan, deceased. From decree denying issue devisavit vel non, Tliomas P. Brennan appeals.



H. W. Mumford (of Welles, Mumford & Stark), of Scranton, and Morris & Kirby, of Philadelphia, for appellant.

Clarence Balentine (of Kelly, Balentine, Fitzgerald & Kelly), of Scranton, for appellee.

KEPHART, Justice.

Winifred Brennan, the testatrix, was an aged maiden woman. She had supported herself, working as housekeeper, for nearly fifty years, and had accumulated a substantial fortune. On her retirement, she lived alone until somewhat enfeebled, when she stayed with relatives and friends until her death. By her will, after minor bequests to relatives and for masses, she gave the residue of her estate to Thomas Kennedy, the husband of her niece. Thomas P. Brennan, a nephew of testatrix, being dissatisfied with his aunt's will, challenged its validity on the grounds the will was procured by undue influence and testatrix lacked testamentary capacity. An issue devisavit vel non was denied by the court below, and this appeal followed.

Voluminous testimony was taken to determine the questions involved. It appears testatrix was born in Ireland, and when a young woman emigrated to America, secured employment in the homes of various priests, which she continued until 1920, when, on the death of her last employer, she lived alone in Brooklyn. She was unable to write her own name, and lived most frugally in a small apartment. Her disposition was to save continuously, and her determination to keep her business and financial affairs to herself was pronounced and persistent, so that, at her death, unknown to her relatives, she had, as the savings of her lifetime, about $60,000. After living at the home of various nieces and friends, in March, 1926, she moved to Mrs. Teague's home in Brooklyn, and while there) made her will on June 11, 1926, under the following circumstances:

At testatrix' request, Thomas Kennedy went to Brooklyn and accompanied decedent to the office of a reputable attorney of her

168 A. 26

own choice, M. J. Horan. whom she had twice previously consulted, for the purpose of drawing a new will. While at the office, Kennedy remained in the anteroom; testatrix being alone with her attorney. There she gave instructions as to what the will should contain, and it was so drawn and executed by her. Kennedy knew nothing of the provisions until testatrix afterwards showed him the will. There is nothing to show that he knew the amount of her property. The will remained in her possession from the date of its execution until her death nearly three years later, when it was found in her trunk.

At the outset, it may be stated there is no evidence that Thomas Kennedy or any other person exerted any undue influence in making) the will. Kindly care and solicitous attention do not amount to undue influence. Advice or even persuasion while a person is a member of one's household is not improper. Legitimate family and social relations are not prohibited though provisions of a will are thereby influenced and affected; such results are their natural and proper products. Dean v. Negley, 41 Pa. 312, 80 Am. Dec. 620. "Undue influence" connotes control of testatrix' mind at the time and in the very act of making the will. In re Tetlow's Estate, 269 Pa. 486, 112 A. 758; Kustus v. Hager, 269 Pa. 103, 112 A. 45. There must be a present, operating, and effective restraint upon the will of testatrix in the testamentary effectuation. In re Keen's Estate, 299 Pa. 430, 149 A. 737...

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