Masciantonio's Estate, In re

• Decision Date: 21 April 1958
• Citation: 392 Pa. 362,141 A.2d 362
• Parties: ESTATE of Erminto MASCIANTONIO, Deceased. Appeals of Rose DiLullo MASCIANTONIO and six other cases. Appeals of Lucia D'Ulisse and two other cases.
• Court: Pennsylvania Supreme Court

Page 362

141 A.2d 362

392 Pa. 362

ESTATE of Erminto MASCIANTONIO, Deceased.

Appeals of Rose DiLullo MASCIANTONIO and six other cases.

Appeals of Lucia D'Ulisse and two other cases.

Supreme Court of Pennsylvania.

April 21, 1958.

Rehearing Denied May 28, 1958.

Francis T. Dennis, Conshohocken, Walter E. Alessandroni, Philadelphia, for appellant.

James R. Caiola, Norristown, Richard S. Lowe, Bernard V. DiGiacomo, DiGiacomo & Lowe, Conshohocken, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, BENJAMIN R. JONES and COHEN, JJ.

BENJAMIN R. JONES, Justice.

Decedent, aged 69 years and a resident of Conshohocken, Pa., died July 21, 1955 in the Sacred Heart Hospital in Norristown, Pa. His immediate survivors--all residents of Italy--were his widow, Rosa Masciantonio, and nine nephews and nieces.

On August 2, 1955, a written instrument purporting to be the decedent's last will was admitted to probate by the Register of Wills of Montgomery County and letters testamentary were issued to the executor named therein, the Montgomery Norristown Bank and Trust Company. From the decree of probate the decedent's widow appealed. After a hearing ¹ the Orphans' Court of Montgomery County sustained the Register's action and these appeals were taken.

The decedent came to the United States from Italy in 1905, leaving his wife in that country. ² Although decedent and his wife never lived together again the record reveals that decedent over many years, with the exception of the war years, forwarded money from time to time to his wife who lived on a farm which decedent owned in Italy. The decedent's original intention may have been to return to Italy, but, after World War I, he continually hoped to bring his wife to the United States, an expectation never realized because of his failure to become a U.S. citizen.

Decedent always resided in Conshohocken, for about 24 years with the D'Allesandro family--the first Mrs. D'Allesandro having been a relative--and the rest of the time alone. A long time employee of the Allan Wood Steel Company, the record portrays decedent as a frugal, exceedingly industrious and somewhat retiring person. Approximately three weeks prior to July 10, 1955 he became ill. On July 10, 1955 he was admitted to the hospital where he remained until his death on July 21, 1955. The cause of death was carcinoma of the liver attended with hepatitis, inflammation of the liver and jaundice.

The will, the validity of which is attacked, appears on a typewritten instrument, dated July 20, 1955, executed by decedent by mark and bearing the signatures of two subscribing witnesses, the scrivener and the sole residuary legatee. Proponents claim that this will was executed at approximately 4 p. m. on July 20, 1955--about 17 hours prior to decedent's death.

The alleged will contains: (1) a direction that the decedent's debts and funeral expenses be paid; (2) specific devises of 4 separate pieces of realty, one to each of four named persons described as 'nephews' and 'nieces'; ³ (3) a bequest of $3,000 to a Conshohocken church; (4) a gift of the entire residuary estate to one Rose Benedict; ⁴ (5) a direction that each devisee and legatee pay his or her proportionate share of the taxes; (6) a direction that, even though the decedent gave under the will nothing to his wife, yet, in the event that the wife should successfully assert a right against the estate, ⁵ the shares of each legatee and devisee should be proportionately diminished; (7) the appointment of the Montgomery Norristown Bank and Trust Company as executor.

A three-fold attack is made on this alleged will: that at the time of its execution decedent lacked testamentary capacity, that the will was procured by undue influence and fraud, and that it was not legally executed in that one of the two witnesses to decedent's signature by mark, the sole residuary legatee, was incompetent to act as such witness.

In reviewing this decree of the court below we are mindful that the findings of an Orphans' Court judge, who heard the testimony without a jury, are entitled to the weight of a jury's verdict and are controlling upon us and that its decree should not be reversed unless it appears that the court has abused its discretion. Williams v. McCarroll, 374 Pa. 281, 298, 97 A.2d 14. See also Kerr v. O'Donovan, 389 Pa. 614, 629, 134 A.2d 213; Farmer Will, 385 Pa. 486, 487, 123 A.2d 630. However, we are also mindful that if it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence the court's findings may be set aside. In re Mohler's Estate, 343 Pa. 299, 305, 22 A.2d 680. The test is not whether we, the appellate court, would have reached the same result had we been acting as the hearing judge who saw and heard the witness, "but rather whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor". Shuey v. Shuey, 340 Pa. 27, 32, 16 A.2d 4, 6.

The determination of the propriety of the instant decree necessitates our review of the entire record.

Proponents offered in evidence the record of probate and then rested. Upon contestant was then imposed the 'duty to come forward with evidence'. Kerr v. O'Donovan, 389 Pa. 614, 623, 134 A.2d 213, 217, supra, and cases therein cited. In performance of this duty the contestant produced twelve witnesses: ⁶ decedent's two attending physicians, two nurses, his widow, three relatives and four friends.

Contestant's evidence may be thus summarized:

(1) Margaret D'Allesandro--stepmother of the four specific devisees--had known decedent for approximately 20 years, during 15 years of which he lived in the D'Allesandro home while she lived there. At decedent's request, on or about July 10th, 1955 she called Dr. Rappaport, arranged for decedent's hospitalization and drove decedent to the hospital. Prior to decedent's departure for the hospital he gave her approximately $400 for the payment of taxes on his realty, at least part of which was applied to that purpose. During the first four or five days of decedent's hospitalization, she conversed with him, either by actual visitation to him or on the telephone, although after July 15th he did not answer the telephone. During her last telephone conversation with decedent he complained he was being 'pestered' about making a will. On July 19th she remained at the hospital from 1:30 p. m. to 6 p. m.; at various times that afternoon Rose Benedict, Michael Masciantonio (Rose Benedict's father), Peter Masciantonio and Joseph Gennaro arrived. They all left the hospital together. While all were in the hospital Dr. Carfagno informed them that decedent was then critically ill. While they were conversing in the hospital corridor a visiting priest came by; in their presence Rose Benedict spoke to the priest, stating that the decedent did not have a will, and the priest said that 'someone ought to get it made'. The next day--July 20th--when she visited decedent he was 'kind of sleeping steadily'. Prior to his departure for the hospital decedent told her that he was going to straighten out his affairs and that 'his wife won't be poor anymore'. This witness testified that Rose Benedict, residuary legatee, never visited decedent at his home.

(2) Peter Masciantonio--decedent's first cousin, once removed, and a fellow worker--when he visited decedent on July 13th, found his condition seemingly good, although he was jaundiced. On July 19th decedent was asleep and the witness was unable to secure any response from him, except a shake of the head. He described the difficult time he had in putting pajamas on decedent on that date because of the latter's inability to cooperate. He corroborated Mrs. D'Allesandro's testimony concerning the conversation in the hospital corridor between the priest and Rose Benedict. From his observations on July 19th decedent was then unable to make a will. He denied that Attorney DiGiacomo, the scrivener, was at the hospital at 5:45 p. m. on July 19th.

(3) Laura Ambirg--decedent's friend of almost 40 years--stated that, in April or May, 1955, when decedent was contemplating the purchase of another piece of realty, she asked him what would happen if he died and decedent replied 'I guess my wife take it'.

(4) Joseph Gennaro--decedent's friend and neighbor--visited the decedent on July 19th and found him mumbling and too ill for any conversation.

(5) Marion Manfredi--nurse on duty from 7 a. m. to 3 p. m.--testified that decedent was fed intravenously the last few days of his life, that on July 18th he was lethargic and on July 19th and 20th he was 'dozing at long intervals'.

(6) Caroline Monastero--nurse on duty from 11 p. m. to 7 a. m.--stead that while she was on duty decedent was apparently always sleeping.

Contestant's principal testimony came from Dr. Rappaport, the attending physician, and Dr. Carfagno, a consulting specialist in internal medicine, both admittedly qualified. Dr. Rappaport--to whom decedent was then unknown--in response to a call had decedent admitted to the hospital on July 10, 1955. Because of decedent's physical condition, the doctor had great difficulty in securing from him a complete history. He did learn, however, that decedent, although he had continued to work, had been feeling quite ill for three weeks. Even though the decedent was jaundiced and apparently very ill, it was the opinion of this doctor that then decedent could recognize people and knew the extent of his property. From the date of his admission on July 10th until the date of his death on July 21st Dr. Rappaport saw decedent at least once, sometimes twice, daily. On July 17th Dr. Rappaport called in Dr. Carfagno for consultation. On the date of the alleged will--July 20th--he visited the decedent on two occasions, at 11 a. m. and 5 p. m.--five hours before and one hour subsequent to the time the...