In re Yorke's Estate

• Decision Date: 21 March 1898
• Docket Number: 195
• Citation: 185 Pa. 61,39 A. 1119
• Parties: In re Estate of Mary Yorke, deceased. Appeal of Mary Kingsley et al
• Court: Pennsylvania Supreme Court

39 A. 1119

185 Pa. 61

In re Estate of Mary Yorke, deceased. Appeal of Mary Kingsley et al

No. 195

Supreme Court of Pennsylvania

March 21, 1898

Argued January 26, 1896

Appeal, No. 195, Jan. T., 1897, by Mary Kingsley, from decree of O.C. Phila. Co., July T., 1895, No. 205, refusing to award an issue devisavit vel non. Affirmed.

Application for an issue devisavit vel non.

The opinion of the court by HANNA, P.J., was as follows:

The rule by which the courts are to be guided in determining whether an issue shall be granted to test the validity of a last will and testament upon either the alleged absence of testamentary capacity or fraud or other undue influence exerted upon a mind of a testator is now settled by a long line of decisions by the Supreme Court, and which have been followed by this court. It is not sufficient merely to aver that the testator was of unsound mind and mentally incapable of the execution of a will, or that undue influence was used to procure its execution to entitle a party contestant to an issue. The averments must be supported by evidence sufficient to create a conflict of evidence, and dispute as to material facts. As remarked by GIBSON, C.J., in Wikoff's Appeal 15 Pa. 289, "It would be absurd to incur the costs of a trial when there is nothing to try." To the same effect is Knight's Appeal, 19 Pa. 493, and Dean v Fuller, 40 Pa. 474. So that the doctrine is now well established, from Bradford's Will, 1 Parsons' Select Cases, 153, to Miller's Appeal, 179 Pa. 645, the latest case upon the subject, that, upon an appeal from the register, not only must there be a conflict of testimony upon a material fact in dispute to warrant the granting of an issue, but from a wise and beneficent care for the interests of all the parties whereby they are saved from the annoyance trouble, expense and uncertainty of a trial before a jury, "in the hope that some feeling in favor of equality among the next of kin would influence them to set it aside:" Graham's Appeal, 61 Pa. 43. "The evidence must be such that if an issue be granted and a jury should find a verdict against the will, we, if sitting in a court of law, would be satisfied that the finding was in accordance with the evidence or the weight of the evidence and would refuse to disturb the verdict:" Wainwright's Appeal, 89 Pa. 223. This was following Cauffman v. Long, 82 Pa. 72, which is recognized and followed in a multitude of subsequent cases, among which may be cited Combs' & Hankinson's Appeal, 105 Pa. 156, Wilson v. Mitchell, 101 Pa. 495, Appeal of Knauss, 114 Pa. 10, Herster v. Herster, 116 Pa. 612, and Miller's Appeal, supra. We are thus led to the inquiry in the case before us, is there a substantial dispute or conflict of testimony as to the mental condition of testatrix at the date of the execution of the codicil to her will. If so, the contestants are entitled to the issue. At the same time, however, if the testimony be conflicting and contradictory, upon matters immaterial and easily reconciled and explained from other parts of the testimony, and upon a careful consideration of the entire evidence we are satisfied that a verdict against the validity of the codicil is unwarranted by the evidence or the weight of the evidence, our duty is to refuse the issue.

After a more careful consideration of the question presented and fuller consideration of the testimony than we were able to give at the close of the hearing upon the appeal, we have reached the conclusion that sufficient has not been shown by the contestants to entitle them to the issue. The first ground alleged is that testatrix was not of sound and disposing mind at the date of the execution of the codicil, and, therefore, mentally incapable of a testamentary disposition of her estate. No better definition of what constitutes testamentary capacity can be given than that by TRUNKEY, J., in Wilson v. Mitchell, 101 Pa. 495, citing Daniel v. Daniel, 39 Pa. 191; Tawney v. Long, 76 Pa. 106; Leech v. Leech, 21 Pa. 67: "The question is not so much what was the degree of memory possessed by the testator as this: Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it and the objects of his bounty? To sum up the whole in the most simple and intelligent form -- Were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time when he executed the will?" And further: "Neither age and sickness nor extreme distress or debility of body will affect the capacity to make a will if sufficient intelligence remain." The failure of memory is not sufficient to create the incapacity unless it be total or extend to his immediate family or property. The want of recollection of names is one of the earliest symptoms of the decay of the memory; but this failure may exist to a very great degree, and yet "the solid power of the understanding remain;" also referring to Van Alst v. Hunter, 5 Johns. Ch. 148. Keeping this in view, a careful analysis of the testimony develops these facts:

On December 29, 1894, the testatrix, who was seventy-nine years old, and had never married, executed a will whereby she bequeathed all her estate to her brother, William Yorke absolutely, and appointed him one of her executors. He was about five years her senior. No objection was made as to the validity of the will, and the entire testamentary capacity of testatrix at that date was conceded. She resided with her brother, who had married in early life, but was at that date a widower without surviving issue. They, with their servants, composed the household. The testatrix managed the domestic affairs of the family; she provided for the table, engaged and dismissed servants, and naturally exercised a general supervision of all that concerned the welfare of herself and brother. She was possessed in her own right of personal estate to a considerable amount, the care and management of which she committed entirely to her brother. He was possessed of a much larger estate. He lived a life of leisure and retirement from active business, but still occupied himself with careful oversight and management of his own and his sister's fortune. He enjoyed the pleasures of his home, was fond of the society of his friends and relatives and visits to the club and library to which he belonged. Both he and his sister were of refined tastes and fond of literature and music. On the same day that testatrix executed her will her brother also made his will, devising and bequeathing to her all his estate absolutely. Thus the brother and sister evidenced their intention that the survivor should be the possessor of both estates. Testatrix was in the enjoyment of good health and a vivacious temperament. She was in the habit of visiting her friends and relatives, and receiving their visits in return. She would go out alone at her pleasure, and upon errands of business. Her memory was good. She was fond of pleasantry and lively conversation. She was accustomed to read to her brother and converse with friends and visitors about current events. She would also converse with her brother in French. She was a musician, and frequently accompanied her brother upon the piano. They both corresponded by letter with their nieces, the contestants, also with their nephew and his daughters, and also with the husband of her niece, the executor named in the codicil, as shown by notes preserved, until as late as February, 1893, and the penmanship is remarkably distinct and clearly defined. During every year succeeding the date of execution of her will, and until her death, testatrix and her brother were accustomed to leave their city home and pass the summer months at some popular seaside or suburban resort. At first they were without the companionship of any of their relatives, but, as the infirmities of age increased, they sought the attention and society of their only niece residing in the city, who, with her husband and family, became fellow-boarders with them at the same resorts. Testatrix was a person of unusual mental activity, in full possession of all her faculties, erect in figure, alert in movement, and in every respect, save the single noticeable exception of impaired vision, was remarkably well preserved for one who had reached the advanced age of eighty-six years. As before stated, the will executed in 1884 is not the subject of controversy. So that we now approach a consideration of the facts immediately connected with the preparation and execution of the codicil. The will of 1884 was drafted and engrossed by the husband of a niece of testatrix, with whom she and her brother were most intimately associated, and their mutual relations most kind and affectionate. The draftsman of the will is a reputable and highly respected member of the bar; the son of an intimate friend of testatrix and her brother, and had become the husband of their niece with their full consent and approbation. He had been the attorney and professional adviser of the brother for more than a quarter of a century. The wills he had prepared remained unaltered during seven years, and from his testimony we obtained the salient facts and circumstances relating to the codicils. It does not appear that testatrix ever expressed to the draftsman of her codicil her intention to alter the will she executed in 1884, but from the intimate relation of the parties, we think it was undoubtedly known to them from the statements previously made by testatrix to her niece, his wife. The result, however, was, testatrix and her brother determined each to execute a codicil. They did not consult their nephew by marriage, who had, since the execution of their wills in 1884, continued to be their...