In re Megary's Estate

• Decision Date: 18 May 1903
• Docket Number: 287
• Citation: 55 A. 963,206 Pa. 260
• Parties: Megary's Estate
• Court: Pennsylvania Supreme Court

55 A. 963

206 Pa. 260

Megary's Estate

No. 287

Supreme Court of Pennsylvania

May 18, 1903

Argued April 27, 1903

Appeal, No. 287, Jan. T., 1902, by Anna J. Megary Ege, from decree of O.C. Cumberland Co., dismissing appeal from register of wills in estate of Sarah Megary. Reversed.

Appeal from register of wills refusing to admit paper to probate.

The facts are stated in the opinion of the Supreme Court.

Error assigned was in dismissing the appeal.

The decree of the court below and the decision of the register of wills are reversed, and it is now ordered, adjudged and decreed that the register admit to probate, when duly proven the paper dated November 23, 1899, and signed by Sarah Megary, the costs of this appeal to be paid by the appellees.

F. E Beltzhoover and E. M. Biddle, Jr., with them H. M. Zug, for appellant. -- No formal words are necessary to make a will if the substance be testamentary. A gift or bequest after death is of the essence of a will and determines the writing to be testamentary. Whether a writing is a will does not depend upon the maker declaring it so when he executes it but upon its contents: Protestant v. English, 71 Pa. 454; Cover v. Stem, 67 Md. 449; Habergham v. Vincent, 2 Ves. Jr. 204; Turner v. Scott, 51 Pa. 126; Frew v. Clarke, 80 Pa. 170; Schads's App., 88 Pa. 111; Wilson v. Van Leer, 103 Pa. 600; Fosselman v. Elder, 98 Pa. 159; Rose v. Quick, 30 Pa. 225; Frederick's App., 52 Pa. 338; Tozer v. Jackson, 164 Pa. 373; Knox's Est., 131 Pa. 220; Ferris v. Neville, 54 L.R.A. 464; Clarke v. Ransom, 50 Cal. 595; Woods's Est., 36 Cal. 75; Byers v. Hoppe, 61 Md. 206.

Conrad Hambleton, of Wetzel & Hambleton, with him J. G. Fletcher, F. H. Hoffer, W. J. Zacharias and Gillan & Gillan, for appellees. -- The paper was not testamentary in character: Rose v. Quick, 30 Pa. 225; Turner v. Scott, 51 Pa. 126; Frederick's App., 52 Pa. 338; Frew v. Clark, 80 Pa. 170; Schad's App., 88 Pa. 111; Fosselman v. Elder, 98 Pa. 159; Wilson v. Van Leer, 103 Pa. 600; Fouche's Est., 147 Pa. 395; Kisecker's Est., 190 Pa. 476; Harrison's Est., 196 Pa. 576; Knox's Est., 131 Pa. 220; Tozer v. Jackson, 164 Pa. 373.

The instrument is not testamentary because it is not ambulatory or revocable in its nature: Rudy v. Ulrich, 69 Pa. 177; Bradish v. McClellan, 100 Pa. 612.

Before MITCHELL, DEAN, FELL, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This is an appeal from the decree of the court below dismissing an appeal from the decision of the register of wills, refusing to admit to probate the following written instrument:

"To whom it may concern:

"This is to certify that in consideration of the fact that my step-daughter Anna J. Megary Ege has shared her home with me and attended to my business, correspondence &c., for me since the decease of my husband, William C. Megary, and that she has made no charge for said courtesies during said period of time. Now, therefore, be it known that I, Sarah Megary, desire and so affirm that my said step-daughter shall receive as compensation for said services out of my estate a sum of money or its equivalent that shall aggregate two thousand dollars -- the aggregate amount of one hundred dollars per year for a period of twenty years to date.

"I also wish it to be understood that the above mentioned compensation shall not affect any right that she may have as devised to her in any will or testament of mine that may be in force at the time of my decease.

"Witness my hand and seal this twenty-third day of November, A.D. 1899.

"Witnesses:

SARAH MEGARY. [Seal]"

"L. A. BROWNAWELL.

"MRS. MARY FRYMIER.

It is shown by the testimony of the two subscribing witnesses that the paper was signed by Mrs. Megary in their presence when she was of sound mind. It is conceded that the instrument was executed in conformity with the Wills' Act of 1833, and it is not alleged that Mrs. Megary at the time lacked testamentary capacity or was influenced in any way in signing the paper. The register refused to admit the writing to probate on the ground that it was not a testamentary disposition of property. The correctness of this interpretation of the paper by the register, approved by the court below, is the single question for consideration here.

At the time she executed the instrument Mrs. Megary had passed her eighty-sixth year. She was a widow without children and for more than a quarter of a century, during her widowhood, had made her home with Mrs. Ege, the only child of her husband by a former marriage. From the testimony returned with the record, it is apparent that the amount named in the paper offered for probate was at least half of her estate, which consisted of railroad and other stocks. The writing was signed at the residence of Mrs. Ege on one occasion when Mrs. Megary was leaving home to make a visit to some of her friends.

We have no doubt that the paper in question is testamentary in character. Its language and the circumstances surrounding its execution and preservation lead to the conclusion that Mrs Ege was not to receive the $2,000 until after Mrs. Megary's death. While it recognizes the kindness of Mrs. Ege in gratuitously sharing her home with Mrs. Megary since the death of the latter's husband and the desire to compensate Mrs. Ege for her services, yet there is no acknowledgment of an existing liability nor a promise to pay any sum for the courtesies extended to her by her stepdaughter. No present interest in or claim on the $2,000 passed to Mrs. Ege by any provision of the instrument, and hence, no action could have been maintained by her against Mrs. Megary in the latter's lifetime to recover the money. Omitting from the second paragraph, the operative and disposing part of the instrument, the words which may be treated as surplusage, that paragraph reads as follows: "I, Sarah Megary, desire and so affirm that my said step-daughter shall receive out of my estate a sum of money or its equivalent that shall aggregate two thousand dollars." Stripped of verbiage, such is the operative language of the paper under consideration. It expresses no intention to assume a personal liability. It is a command to the parties to whom it is addressed who...