Ligo v. Dodson

• Decision Date: 21 June 1930
• Docket Number: 67
• Citation: 151 A. 694,301 Pa. 124
• Parties: Ligo et al. v. Dodson et al., Appellants
• Court: Pennsylvania Supreme Court

151 A. 694

301 Pa. 124

Ligo et al. v. Dodson et al., Appellants

No. 67

Supreme Court of Pennsylvania

June 21, 1930

Argued May 13, 1930

Appeal, No. 67, March T., 1930, by defendants, from judgment of C.P. Lawrence Co., Sept. T., 1929, No. 1, on verdict for plaintiffs, in case of Jane Ligo et al., executrixes in estate of Jessie W. Hamilton, deceased, and Lawrence Savings & Trust Co., guardian of Mary Isabelle Leedy et al., minors v. Ida B. Dodson et al. Affirmed.

Issue devisavit vel non. Before CHAMBERS, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiffs. Defendants appealed.

Error assigned, inter alia, was in refusing judgment for defendants n.o.v., quoting record.

Judgment affirmed.

C. H. Akens, for appellants. -- A testator is presumed to know the contents of a will executed by him in the presence of witnesses, although it is not read at the time: Linton's App., 104 Pa. 228; Dickinson v. Dickinson, 61 Pa. 401; Vernon v. Kirk, 30 Pa. 218; White's Est., 262 Pa. 356.

The fact that the body of the will is in the decedent's own handwriting affords no presumption that he signed the will.

There is some space between obeying the demand of a fixed habit in writing and obeying the demand of a moral obligation, and the promise of Mrs. Dean to her husband, in respect to the final destination of that part of the husband's property passing to her under the intestate laws, is more even than a moral obligation: Church v. Ruland, 64 Pa. 432; Hoge v. Hoge, 1 Watts 163; McKee v. Jones, 6 Pa. 425; Parker v. Urie's Exrs., 21 Pa. 305, 309; Pringle v. Pringle, 59 Pa. 281, 287; Cameron v. Townsend, 206 Pa. 393, 404.

W. Walter Braham, with him Wylie McCaslin and James W. Rhodes, for appellees. -- There is a presumption that where the signature of a person is attached to a paper testamentary in character that the signature was placed there after the writing preceding the signature was completed and that the person writing the same was aware of the contents: Frew v. Clark, 80 Pa. 170; Sharpless's Est., 134 Pa. 250; Vernon v. Kirk, 30 Pa. 218; Ginder v. Farnum, 10 Pa. 98.

The proponents' evidence as to signature was sufficient to carry the case to the jury and justify the verdict that it was genuine.

Where there is a substantial dispute on the facts testified to by eminently credible witnesses, the trial judge is not warranted in disturbing the verdict: Rowand v. Finney, 96 Pa. 192; Tetlow's Est., 269 Pa. 486; Com. Trust Co. v. DuBruille, 243 Pa. 292; Sharpless's Est., 134 Pa. 250; Butts v. Armour, 164 Pa. 73; Kustus v. Hager, 269 Pa. 103.

Standards of handwriting are admissible in evidence for purposes of comparison only in corroboration of other testimony: Travis v. Brown, 43 Pa. 9.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Mrs. Nellie M. Dean, an elderly woman, widow and childless, died suddenly on the night of January 17, 1928, at her home in the City of New Castle, from heart disease. She had previously been in general good health and the heart trouble did not assume an acute form until a short time before her death. Her mental powers were strong; she had long been active and successful in the management of business and financial affairs attendant upon her estate, valued at approximately $300,000, left by her husband, who died intestate. On the day of her decease a will, the existence of which had not been known to any one, according to the evidence in the present litigation, was found in a small satchel placed in a clothes press in her room. The paper was entirely in writing, comprised four paragraphs, on a single sheet of paper, was dated December 5, 1927, and signed at the end thereof, "Nellie M. Dean." By its provisions her estate was bequeathed to numerous intimate friends and companions, none of whom included her next of kin. The paper was admitted to probate. Subsequently the heirs appealed to the orphans' court from the decision of the register, filing their declaration, in which they alleged that neither the signature on the paper, nor the words constituting the date, nor the body of the will itself, were in the handwriting of Mrs. Dean, and that the paper was not intended by decedent to be her last will and testament. An issue devisavit vel non was granted wherein Jane Ligo and others mentioned in the will are named as plaintiffs and appellants as defendants. Previous to the trial on the issue, it was agreed by the parties that the deciding question to be submitted to the jury was whether or not the paper, dated December 5, 1927, was signed at its end by Nellie M. Dean, as and for her last will and testament. The jury returned a verdict for plaintiffs, finding the signature to be genuine. Defendants' request for binding instructions and motions for judgment n.o.v. and for a new trial were refused. Defendants appealed.

The handwriting in the body of the will was disputed, but not established at the trial, and counsel for plaintiffs in their printed brief say: "It is true that plaintiffs were unable to and did not offer witnesses capable of expressing an opinion as to the handwriting in the body of the will." This phase of the case figured, however, prominently at the trial, and the presiding judge, to clearly inform the jury what bearing their finding as to the handwriting in the will itself might have upon their conclusion as to the authenticity of the signature, carefully and properly instructed them as follows: "The plaintiffs produce testimony only as to the signature; no one has come into court here and testified that in their opinion Mrs. Dean wrote the body of this will. Now, it is not necessary that she did write the body of it, if, after that was written, she signed it as and for her last will and testament; so that, in the last analysis, the signature must be controlling. . . . If you would find that this was her signature, and that she actually signed it, even if you do not think that she wrote it, [the body of the will], you would be warranted in finding that it was her will; that is, if she signed it after the writing was put on." The learned court was here adhering to the legal principles established long ago, as expressed in Dawson's Est., 277 Pa. 168, 171: "Forms of wills are immaterial; subscribing witnesses are not vitally essential; signature at the end and due proof of signature . . . by two witnesses is all that our statute requires"; and in Weigel v. Weigel, 5 Watts 486, we said: "The signature of a party is prima facie evidence of execution; and though it is less forcible than if the body of the instrument were also in his handwriting, the difference is but in the degree."

The paper in question here was certainly testamentary in form and met the legal requirements necessary to constitute a valid will, save the signatures of subscribing witnesses. But under the lack of these, the statutory requirements of two or more witnesses may be supplied by circumstantial proof (McClure v. Redman, 263 Pa. 405; Hays v Harden, 6 Pa. 409); and naturally the most that could be expected of such witnesses, both expert and nonexpert, was the expression of opinion to the effect that the signature at the end of the will was in decedent's...