In Re Lare's Estate. Appeal Of Lare.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtPATTERSON, Justice.
PartiesIn re LARE'S ESTATE. Appeal of LARE.
Decision Date29 June 1945

352 Pa. 323
42 A.2d 801

In re LARE'S ESTATE.
Appeal of LARE.

Supreme Court of Pennsylvania.

May 21, 1945.
Rehearing Denied June 29, 1945.


Appeal No. 106, March term, 1944, from decree of Orphans' Court, Allegheny County, No. 9036 of 1942; James Milholland, Judge.

Proceeding in the matter of the estate of Gertrude K. Lare, deceased. From a decree of the orphans' court dismissing exceptions to its opinion and decree sustaining an appeal from the probate of an instrument as decedent's last will and testament, holding that the instrument was a forgery, and refusing request for an issue devisavit vel non for trial of charge of forgery, Marcellus R. Lare, Jr., in his own right and as administrator with will annexed, appeals.

Decree of orphans' court reversed and appeal from register of wills reinstated with directions.

MAXEY, C. J., and DREW, J., dissenting.

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, STEARNE, and JONES, JJ.

Bresci R. P. Leonard, Harry W. McIntosh, Thomas F. Garrahan, and McIntosh & Garrahan, all of Pittsburgh, for appellant.

John J. Heard, John C. Bane, Jr., Paul J. Winschel, and Reed, Smith, Shaw & McClay, all of Pittsburgh, for appellees.

PATTERSON, Justice.

This is an appeal by Marcellus R. Lare, Jr., husband of Gertrude K. Lare, deceased, and administrator cum testamento annexo of her estate, from the action of the court below sustaining an appeal from the probate of an instrument as her last will and testament, holding that the instrument was a forgery, and refusing appellant's request for the granting of an issue devisavit vel non.

Gertrude K. Lare died June 25, 1942, at her home in Mount Lebanon, survived by her husband, Marcellus R. Lare, Jr., appellant, two brothers, Carl E. Maratta and Paul E. Maratta, and a sister, Katherine Sayre, appellees. Although married twice, decedent was childless. In 1932

42 A.2d 802

she was married to George W. Kilpatrick who died July 13, 1935, and in November, 1938, she married appellant. On June 29, 1942, appellant qualified as administrator of her estate. Three days later, while searching for decedent's automobile registration card, he found a writing on the face of a blank check, over decedent's signature, which is purported to be her last will and testament, said writing being as follows:

On July 31, 1942, appellant offered said writing for probate and letters of administration cum testamento annexo were granted. Appeal from said probate was taken by decedent's two brothers and sister to the orphans' court, averring that the alleged will was a forgery and praying that the letters of administration cum testamento annexo be revoked and set aside. An answer was filed averring that the instrument was the will of the decedent. After a hearing appellant petitioned the court to award an issue devisavit vel non for trial of the charge of forgery. The hearing judge held the instrument a forgery and refused to award an issue, stating that ‘no jury verdict sustaining the will could be permitted to stand.’ This appeal is from the dismissal of exceptions to the said opinion and decree.

Contestants' evidence established that as a young girl Gertrude K. Lare had become proficient in shorthand and typing. She was employed as stenographer and typist for a number of years and as private secretary to the General Sales Manager of the Crescent Portland Cement Company until 1929. From that date she was never gainfully employed and rarely, if ever, used a typewriter for any purpose although she owned an Underwood portable machine, the one admittedly used in the preparation of the alleged will. All her correspondence was carried on in longhand.

While the wife of George Kilpatrick she contributed generously to the support of her brothers and sister and to their children. This generosity continued until she died. Upon Kilpatrick's death she inherited considerable money which yielded an annual income of approximately $10,000. In 1937, Dr. Pracht, her physician, introduced her to Marcellus R. Lare, Jr., appellant, who was then employed as a security salesman and had been previously employed in a bank. He was a man of little property. A year and a half later they were married in Miami. Appellant left his position in a Miami bank shortly before the marriage, and in April of 1939 they moved to Wilkinsburg, Pennsylvania. In 1940, decedent purchased a $15,000 home in Mount Lebanon, and took title in the name of her husband and hereself as tenants by the entireties. Appellees testified that the married life of decedent was unhappy and that she suffered from high blood pressure and upon several occasions was a patient at a hospital and a sanitorium. She was troubled and disturbed by his failure to obtain employment, his continued attempts to interfere with her friendly relationships with her brothers and sister, and his demand for an increased share of her wealth. He left her for two weeks and lived with his mother. He then accepted a position as accountant for the Rust Engineering Company at Portsmouth, Virginia, and retained this position from December, 1940, until April, 1941. During this period decedent visited him twice. Later he returned to Pittsburgh and accepted an appointment to the force of Pennsylvania Bank Examiners which required him to spend much time away from home. J. Kirk Renner, Esq. attended to the small amount of legal work which her property required. He had been attorney for the estate of her first husband.

The check upon which the alleged will was written was identified as coming from the back of her check book. She had been in the habit of removing blank checks, signing and carrying them about in her wallet. The check in question was withdrawn

42 A.2d 803

from the back of the book some time between her admission to the West Penn hospital on May 13, 1940, and May 16, 1940.

Immediately upon her decease appellant contacted Renner and inquired whether his wife had left a will and was informed that although she had often mentioned the possibility of making a will providing for her sister and brothers he knew of none. Several days later Renner and Lare had a lengthy discussion at the latter's home about the manner in which the estate would be settled in event of intestacy. After letters of administration had been granted on June 29, 1942, Lare, on July 2, wrote to Renner forwarding numerous papers, among which was the purported will. Renner's advice was to destroy the check. He stated that he would not represent Lare or any other interested party in the settlement of the estate. Numerous attempts were made by appellant to secure Renner as counsel, all of which failed.

Lare sought the advice of appellees' handwriting experts and failed to amply provide his own expert witness with proper samples of deceased's typewriting. At the trial, comparison of Lare's typewriting, made in open court, with that of the reputed will, failed because Lare at that time used an unusually heavy touch. Mr. Nernberg, a handwriting expert, compared the signature on the alleged will with admittedly genuine signatures of the decedent and was of opinion that the former could not have been that of the decedent.

The evidence adduced in support of the validity of the instrument shows that many unimpeachable witnesses agreed that the signature was that of decedent and genuine. Analysis of Mrs. Lare's signatures show them to have similar characteristics with regard to size and variation. Only appellees' witness declared it a forgery. Nernberg failed to take into consideration degrees of variation in writing and made no comparson with exhibits made on or near the date of the alleged signature. Mrs. Lare, around the date of the will, used both dark and green ink. Numerous exhibits were put in evidence in which blue ink was used, to disprove appellees' theory that to be genuine the signature would of necessity have been in green ink. Three people saw Mrs. Lare use the typewriter during the last several years of her life. Although having been ill for a number of years she had not typed professionally for thirteen years. The machine she was using was a small portable machine, not the larger business office type. The typing on the check is neat and the margins well arranged, and not crowded. Comparison of the letters of expert typists, made in the court room, reveal the same errors allegedly existing upon the will. An exhibit typed by one of the professional typists in the court room revealed the same misalignment urged by the appellees as evidence of a forgery. Lare had a habit of completing and punctuating dates; Mrs. Lare wrote partial dates. The contested instrument does not contain any punctuation after the date. Exhibits of actual typing by Mrs. Lare were offered, and Leslie, appellant's expert, used the same for comparison in determining the typing to be that of decedent.

Appellant and decedent had a normally happy life. Any quarrels they had arose over the great amount of gifts of money which were given to the contestants or their children. Her generosity decreased considerably in the last year of her life. Many exhibits refer to the happy marriage and her great desire to be with him whenever possible. Although contestants were continually attempting to create friction between decedent and appellant, on April 24, 1942, she wrote ‘I want to live and enjoy life and you and our house.’ Upon numerous occasions she remarked that she would leave all to her husband, thus establishing the disposition of her estate to be a natural one. Explanation is given for the friction arising between Renner and Lare, that being the existence of a $1000 note to decedent, not marked paid or satisfied. The language of the will and use of a blank check are also explained.

The granting of an issue devisavit vel non is not always a matter of right. Section 21(b) of the Act of 1917, P.L. 363, 20 P.S. § 2582, provides: ‘Whenever a dispute upon a matter of fact arises before any orphans' court, on appeal from...

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31 practice notes
  • Hall's Estate, In re
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 4, 1961
    ...would be substantial; if the answer was 'yes', the dispute would not be substantial. Lewis Will, 364 Pa. 225, 233, 72 A.2d 80; Lare Will, 352 Pa. 323, 42 A.2d 801; DeLaurentiis's Estate, 323 Pa. 70, 79, 186 A. 359; Kline's Estate, 322 Pa. 374, 378, 186 A. 364. 2 On appellate review, we pass......
  • Kerr v. O'Donovan
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 28, 1957
    ...then the dispute is not substantial. [389 Pa. 621] The late Mr. Justice Allen M. Stearne, in a concurring opinion in Re Lare's Will, 352 Pa. 323, 331, 332, 42 A.2d 801, 805, stated: 'The case of In re DeLaurentiis' Estate, 323 Pa. 70, 186 A. 359, 363, is perhaps the latest leading authority......
  • In Re Quein's Estate. Appeal Of Honey Brook Methodist Church.
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 3, 1949
    ...determine preliminarily whether there exists a substantial dispute of fact. Cf. DeLaurentiis' Estate, 323 Pa. 70, 186 A. 359; Lare's Will, 352 Pa. 323, 42 A.2d 801, and the many cases which follow them. A substantial dispute is disclosed both in the testimony and in the opinion of the court......
  • In re Hall's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 4, 1961
    ...would be substantial; if the answer was 'yes', the dispute would not be substantial. Lewis Will, 364 Pa. 225, 233, 72 A.2d 80; Lare Will, 352 Pa. 323, 42 A.2d 801; DeLaurentiis's Estate, 323 Pa. 70, 79, 186 A. 359; Kline's Estate, 322 Pa. 374, 378, 186 A. 364. [2] On appellate review, we pa......
  • Request a trial to view additional results
31 cases
  • Hall's Estate, In re
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 4, 1961
    ...would be substantial; if the answer was 'yes', the dispute would not be substantial. Lewis Will, 364 Pa. 225, 233, 72 A.2d 80; Lare Will, 352 Pa. 323, 42 A.2d 801; DeLaurentiis's Estate, 323 Pa. 70, 79, 186 A. 359; Kline's Estate, 322 Pa. 374, 378, 186 A. 364. 2 On appellate review, we pass......
  • Kerr v. O'Donovan
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 28, 1957
    ...then the dispute is not substantial. [389 Pa. 621] The late Mr. Justice Allen M. Stearne, in a concurring opinion in Re Lare's Will, 352 Pa. 323, 331, 332, 42 A.2d 801, 805, stated: 'The case of In re DeLaurentiis' Estate, 323 Pa. 70, 186 A. 359, 363, is perhaps the latest leading authority......
  • In Re Quein's Estate. Appeal Of Honey Brook Methodist Church.
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 3, 1949
    ...determine preliminarily whether there exists a substantial dispute of fact. Cf. DeLaurentiis' Estate, 323 Pa. 70, 186 A. 359; Lare's Will, 352 Pa. 323, 42 A.2d 801, and the many cases which follow them. A substantial dispute is disclosed both in the testimony and in the opinion of the court......
  • In re Hall's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 4, 1961
    ...would be substantial; if the answer was 'yes', the dispute would not be substantial. Lewis Will, 364 Pa. 225, 233, 72 A.2d 80; Lare Will, 352 Pa. 323, 42 A.2d 801; DeLaurentiis's Estate, 323 Pa. 70, 79, 186 A. 359; Kline's Estate, 322 Pa. 374, 378, 186 A. 364. [2] On appellate review, we pa......
  • Request a trial to view additional results

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