In re Buechley's Estate

Decision Date23 June 1923
Docket Number5
PartiesBuechley's Estate
CourtPennsylvania Supreme Court

Argued May 21, 1923

Appeal, No. 5, Jan. T., 1923, by Laura B. Kenney et al children of testator, from decree of O.C. Schuylkill Co. refusing issue devisavit vel non, in estate of William Buechley, Sr., deceased. Affirmed.

Appeal from register of wills. Before WILHELM, P.J.

The opinion of the Supreme Court states the facts.

Appeal dismissed. Laura B. Kenney and Fred Bryson Buechley, children of testator, appealed.

Error assigned was decree, quoting it.

The assignment of error is overruled and the decree is affirmed at the cost of appellants.

Cyrus G. Derr, with him P. B. Roads and Gco. M. Roads, for appellants. -- If a man's mind be impaired, though not to the extent of disabling him from making a will, and he executes a testamentary paper largely preferring a son who, beyond and in addition to kinship, stands in a confidential relation to him, there arises a presumption that the preference was the result of undue influence exercised by such son, and the latter, if his claim be legally challenged, is bound to rebut such presumption by evidence: Miller's Est., 179 Pa. 645; Friend's Est., 198 Pa. 363; Phillips' Est., 244 Pa. 35.

Joseph W. Moyer, for appellee. -- The issue was properly refused: Hooks's Est., 207 Pa. 207; Caughey v. Bridenbaugh, 208 Pa. 414; Dean v. Negley, 41 Pa. 312; Herster v. Herster, 122 Pa. 239; Tawney v. Long, 76 Pa. 106; Allison's Est., 210 Pa. 22; Tyson's Est., 223 Pa. 596; Gongaware v. Donehoo, 255 Pa. 502; Phillips's Est., 244 Pa. 35; McNitt's Est., 229 Pa. 71; Masterson v. Berndt, 207 Pa. 289; Tetlow's Est., 269 Pa. 486.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

William Buechley, Sr., of Pottsville, died in 1919, survived by three children, viz: Mrs. Laura B. Kenney, William Buechley, Jr., and Fred B. Buechley. The son, William, had long been the partner of his father in the lumber business, and produced what purported to be the latter's holographic will made in January, 1910, wherein one thousand dollars was given to the son Fred, bank stock worth $9,750 to the daughter and, as appellee construes the instrument, the residue of the estate, valued at over one hundred thousand dollars, to him (William), who was made executor. From the probate of the will, the daughter and son Fred (contestants) appealed to the orphans' court where an answer was filed and testimony taken. The contest was based mainly upon alleged undue influence and lack of testamentary capacity. That court filed a comprehensive opinion and entered a decree refusing to award an issue devisavit vel non, from which the contestants brought this appeal.

The execution of the will and the testamentary capacity of William Buechley, Sr., were established beyond controversy but the serious contention of contestants is, that the son, William, stood in a confidential relation to his father, which the evidence justifies, and that, being the principal legatee, a presumption of undue influence arises which he must rebut. Such presumption, however, arises only where there is proof of extreme infirmity or mental weakness. As stated by Mr. Justice FRAZER in Gongaware v. Donehoo, 255 Pa. 502, 508: "While it is true that, where a testator leaves a substantial part of his estate to one occupying a confidential relation, the burden is on the latter to show that no improper influence controlled the making of the will (Adam's Est., 220 Pa. 531); yet this presumption arises only where there has been proof of extreme infirmity or mental weakness," citing in support thereof the leading case of Phillips's Est., 244 Pa. 35, 44, 46. In the case of Miller's Est., 179 Pa. 649, and 187 Pa. 572, relied upon by appellants, the facts were different; in that case there was evidence from which the jury might find that the testator's mental faculties were greatly impaired. This distinction is pointed out in Friend's Est., 198 Pa. 366. It therefore becomes important to determine what the evidence is as to testator's mental and physical health when the will was made. He was then sixty-five years of age, actively engaged in his business and also as director and auditor of a large banking institution, and continued so until he became paralyzed five years later. That his mind was good is established by overwhelming evidence, including that of the family physician, of his associates at the bank, in his office and elsewhere, as well as by the witnesses to the will. No one testifies to the contrary and the evidence for contestants amounts only to some slight circumstances entirely insufficient to create any doubt as to the mental ability of the testator. Among such circumstances are, (a) the testimony of the daughter and her husband that after Mr. Buechley fell and injured his head (which he did in 1906) he acted differently; (b) that, when he visited them a few days before the will was made, he was somewhat intoxicated, walked with difficulty, mumbled his words and could not raise his right arm to his head; (c) that he shed tears while reading a repentant letter from his erring son Fred, and frequently stayed at a hotel at times when he was drinking heavily; and (d) that the legacy to the daughter is written in at the end of the will as if an afterthought....

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