In re Dalbey's Estate

• Citation: 192 A. 129,326 Pa. 285
• Decision Date: 17 May 1937
• Docket Number: 73
• Parties: Dalbey's Estate
• Court: United States State Supreme Court of Pennsylvania

192 A. 129

326 Pa. 285

Dalbey's Estate

No. 73

Supreme Court of Pennsylvania

May 17, 1937

Argued March 29, 1937

Appeal, No. 73, March T., 1937, from decree of O.C. Greene Co., June Court, 1936, No. 47, in re Estate of John W Dalbey, Deceased. Decree affirmed.

Appeal from refusal to admit to probate a lost will.

The opinion of the Supreme Court states the facts.

Appeal dismissed, opinion by GIBSON, J., specially presiding. Proponent appealed.

Error assigned was order dismissing appeal.

Decree affirmed, costs to be paid by the estate.

W Robert Thompson, with him Ambrose Bradley, of Thompson & Bradley, for appellant.

J. I. Hook, of Scott & Hook, for appellees, was not heard.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. CHIEF JUSTICE KEPHART:

The facts show that in 1926 decedent, John W. Dalbey, executed a will which he kept along with other papers in a small wooden box in his house. He always had free access to the box up to his death. When he died neither this will nor any other could be found, and an administration was raised on his estate. His widow endeavors to have a copy of the 1926 will probated.

The court below properly held that the execution and contents of the lost will had each been satisfactorily proved by two competent witnesses as required by law: see Harrison's Estate, 316 Pa. 15, 18. The fact that decedent's widow, who was one of the two witnesses called to prove its contents, was substantially the sole beneficiary under it did not disqualify her absolutely as a witness for this purpose. Under the common law rule formerly in force in this state a devisee or legatee of a will was totally incompetent to testify. In Harding v. Harding, 18 Pa. 340, this court held that the signature of a subscribing witness, who was a devisee, could not be proved in support of execution, since the devisee would himself have been incompetent. This rule was abrogated by the Act of May 23, 1887, P.L. 158, Sec. 4, in accord with the more modern viewpoint, which recognizes the probative value of such testimony as outweighing the danger of perjury, and limits the effect of the witness' interest to the question of credibility. ^[*] While Section 5(e) excludes the testimony of a witness whose interest is adverse to the interest of a decedent in an action concerning it, there is the following exception, among others: ". . . unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses." This enactment renders competent all witnesses in disputes involving the testamentary disposition of property regardless of any interest possessed by them in the particular decedent's property. In Frew v. Clarke, 80 Pa. 170, this court held that a legatee was competent to prove execution of the will under which he was to take, stating at p. 179: "To deny this, is to disregard the specific terms of the act, and to refuse to give effect to the language cited. It was, therefore, held in Bowen v. Goranflo, 23 P. F. Smith [73 Pa.] 357, that one who was a party to the issue and both executor and devisee under the will in controversy, was a competent witness." See also Patterson v. Shrader, 12 W.N.C. 429. This rule is in keeping with the modern tendency to admit all testimony having a direct bearing on issues involved, notwithstanding the witness' interest, which reflects only on his credibility. This is especially true where other evidence is at times unavailable, as is frequently the case in litigation of this character, when those related to the testator are the only ones who have knowledge of the circumstances surrounding the execution of his will and the contents thereof. Furthermore, irrespective of any feeling one may have concerning the merits or dangerous potentialities of such a policy, it is incumbent upon this court to enforce the express legislative rule.

The evidence here...