In re Mark's Estate

Decision Date25 November 1929
Docket Number123
PartiesMark's Estate
CourtPennsylvania Supreme Court

Argued October 9, 1929

Appeal, No. 123, March T., 1929, by Maria L. Ebdy et al contestants, from decree of O.C. Allegheny Co., March T. 1928, No. 350, dismissing petition for issue devisavit vel non, in estate of Annie S. Mark, deceased. Affirmed.

Petition for issue devisavit vel non. Before MITCHELL, J.

The opinion of the Supreme Court states the facts.

Petition dismissed. Maria L. Ebdy et al., contestants, appealed.

Error assigned, inter alia, was decree, quoting record.

The decree of the court below is affirmed. Costs to be paid by appellants.

Charles Alvin Jones, with him Sterrett & Acheson, Thomas Nichols and Miller & Nesbitt, for appellants. -- Under the facts, either proved, admitted or undenied by the proponents, a presumption of undue influence arises therefrom against them, which it is their legal duty to rebut, whereby the case is one proper for the jury: Boyd v. Boyd, 66 Pa. 283; Wagner's Est., 289 Pa. 361; Wolfe's Est., 284 Pa. 169; Gongaware v. Donehoo, 255 Pa. 502; Phillips's Est., 244 Pa. 35; Adams's Est., 220 Pa. 531; Douglass's Est., 162 Pa. 567; Darlington's Est., 147 Pa. 624; Yardley v. Cuthbertson, 108 Pa. 395; Caldwell v. Anderson, 104 Pa. 199; Cuthertson's App., 97 Pa. 163.

O. K. Eaton, with him Walter L. Riggs, for appellee.




Annie S. Mark, a widow, died December 19, 1927, aged fifty-eight years, leaving a will bearing date December 2, 1927, which was duly probated. An appeal from the decision of the register of wills, admitting the instrument to probate, was filed by heirs at law and next of kin, alleging want of testamentary capacity and undue influence, and asking that an issue d.v.n. be awarded. The court below refused the issue and this appeal followed.

It is admitted by counsel for contestants that "In so far as the learned court below found facts, the appellants have little complaint therewith" and "although several of such findings are in direct conflict with the only record evidence" they "are relatively unimportant." We may therefore, as we said in Doster's Estate, 271 Pa. 68, 72, adhere to the rule laid down by this court in Tetlow's Estate, 269 Pa. 486, which, concretely expressed, is that there must be an abuse of discretion by the hearing judge sitting as a chancellor when an issue is refused, before this court will reverse. It is his duty, after weighing the evidence impartially, to refuse to present the question to a jury, unless he feels the ends of justice call for a verdict against the will, or he is so uncertain on this point that he could conscionably sustain a finding either way on one or more of the controlling issues involved. The material facts here being admittedly established, we have weighed the evidence in the case from the standpoint of whether or not it is sufficient to sustain the judgment of the court below to the effect that Mrs. Mark possessed testamentary capacity, was not unduly influenced in making her will and that the will in controversy was a valid instrument. Our thorough examination of this very large record satisfies us the judgment should not be disturbed.

Mrs. Mark, at the time she executed her will on December 2, 1927, was not an aged woman. Her husband had died in 1926; they had no children and her nearest relatives were the contestants here. She had many warm friends, was attentive in her church devotions and was an active member of an auxiliary of the American-Spanish War Veterans, served on committees of that organization and shared in its other activities.

The evidence discloses that decedent made three wills after the death of her husband in November, 1926, one dated January 4, 1927, which was not executed; another, properly signed by her and attested by witnesses, which she destroyed about December 2, 1927; and the third, dated December 2, 1927, fully executed and the one here in controversy. The unsigned and the destroyed papers have merely an incidental connection with this litigation. The question consequently is, Was the will of December 2, 1927, admitted to probate, a valid instrument?

We are met with the contention, first, that Mrs. Mark did not possess testamentary capacity at the time she executed this last mentioned paper at the residence of Mr. and Mrs. Hendy Keil, in the city of McKeesport, where she was then making her home and where she died December 30, 1927, twenty-eight days after execution of the will in dispute. Our careful examination of the more than 600 pages of testimony convinces us that while, as the lower court found, Mrs. Mark was to a considerable extent physically weakened by illness, such bodily debility did not at all incapacitate her from performing the legal functions required in executing the testamentary paper and seeing it properly attested by witnesses; and also there was no mental impairment and consequently no decline originated from her weakened physical condition or was a concomitant of that weakness. Contrary to the argument of appellants' counsel, Armor's Estate, 154 Pa. 517, which they cite, is not applicable here. In that case decedent at her death was a person of extreme old age, having reached her ninety-third year. There was evidence, particularly by the family physician, tending to show imbecility and the court below was of opinion there existed sufficient evidence of testamentary incapacity to require that question to be passed upon by a jury, but found the proof of undue influence was insufficient to justify an issue, and on that ground refused the issue. This court reversed the case and said (page 522): "It is urged that this assumption by Butts of control over the mind and property of his aged and infirm mother-in-law, her childish submission to the usurpation, is evidence both of testamentary incapacity and undue influence, and the conclusion drawn from the evidence necessarily points with as much probability to the one as to the other."

The facts in the case now before us are quite different. Testatrix was fifty-eight years old at the time she died and, so far as the record discloses, in good health until attacked by her last complicated illness of heart and nerve troubles and diabetes. Undoubtedly she was a woman of strong mind, she had many friends and was held in great esteem by them. She was prone to pronounced prejudices and personal antipathies, like many other mortals; had an affectionate regard for those who pleased her and strong dislikes towards those whom she believed had offended her. The evidence discloses an illuminating instance of these characteristics. In her unsigned will, she had appointed Ed. Kemp, an acquaintance of many years standing, one of her executors and had named him and his wife as beneficiaries. In her final will their names do not appear, for the reason that during her last illness she heard Kemp suggest that she be taken to a hospital. She had a horror of such institutions, having been at one time a patient in one for the purpose of having her tonsils removed, and was so deeply offended by Kemp's suggestion, that she left him a rather bitterly worded letter, explaining her change of mind, in which she said: "And in the end when I got down and had to look to my friends to care for me you my best friend wanted to cart me to a hospital." She considered contestants and other relatives had been neglectful of her and resented that attitude, which may or may not have been justified. We can not however hold these antipathies, standing alone, to be evidences of a disordered mind, nor do they imply an impaired mentality (Stevenson v. Stevenson, 33 Pa. 469; McGovran's Estate, 185 Pa. 203), and, as the court below said: "Whether she was justified in this critical attitude we need not inquire. She had a right to indulge her prejudices if she wished without being adjudged of unsound mind."

The court below notes in careful detail the evidence produced by appellants to support their claim that decedent was mentally enfeebled and without...

To continue reading

Request your trial
35 cases
  • Lare Will
    • United States
    • United States State Supreme Court of Pennsylvania
    • 21 Mayo 1945
    ...... April 11, 1945. . . . Appeal, No. 106, March T., 1944, from decree of O.C.,. Allegheny Co., 1942, No. 9036, in Estate of Gertrude K. Lare,. deceased. Decree reversed; further reargument refused June. 29, 1945. . . Appeal. from probate of will. Before ......
  • Williams v. McCarroll
    • United States
    • United States State Supreme Court of Pennsylvania
    • 25 Mayo 1953
    ...his part appears'. In re Dible's Estate, 316 Pa. 553, 175 A. 538, 539; In re Doster's Estate, 271 Pa. 68, 113 A. 831; In re Mark's Estate, 298 Pa. 285, 148 A. 297; In re Fink's Estate, 310 Pa. 453, 165 A. 832. Applying this test: The Judgment non obstante veredicto is affirmed; costs to be ......
  • In Re Lare's Estate. Appeal Of Lare.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 29 Junio 1945
    ...[italics added]. See In re Dible's Estate, 316 Pa. 553, 175 A. 538; In re Doster's Estate, 271 Pa. 68, 113 A. 831; In re Mark's Estate, 298 Pa. 285, 148 A. 297: In re Fink's Estate, 310 Pa. 453, 165 A. 832.’ This Court will reverse a decision refusing an issue d.v.n. only if it appears 42 A......
  • Duross' Estate, In re
    • United States
    • United States State Supreme Court of Pennsylvania
    • 20 Abril 1959
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT