Phillips' Estate

Citation244 Pa. 35,90 A. 457
Decision Date09 February 1914
Docket Number244
PartiesPhillips' Estate
CourtUnited States State Supreme Court of Pennsylvania

Argued October 17, 1913

Appeal, No. 244, Oct. T., 1913, by Albert A. Hill, Mary H Kyle, Jerome F. Hill, Aurelia L. Eckman, Annie N. Hill, Bella Shidler, Marie Richards, Rebecca A. Barnard, G. H. Shidler Eli Jamison, Henry Jamison, Julia Jamison, Isaac Hill, John Shidler, and Alpha H. Frye, from decree of O.C. Washington Co., May T., 1911, No. 85, refusing issue devisavit vel non, in Estate of Elizabeth Phillips, deceased. Affirmed.

Appeal from decree of register of wills admitting to probate the will of Elizabeth Phillips, deceased.

Petition for an issue devisavit vel non. Before McILVAINE, P.J.

The opinion of the Supreme Court states the facts.

The court dismissed the appeal and refused the issue.

Error assigned was the decree of the court.

R. W. Irvin, with him Jesse Stephens, Jas. A. Wiley and W. H. Lacey, for appellants.

John C. Bane, with him Andrew M. Linn, John R. McCreight, Owen C. Underwood, R. H. Meloy, Harry A. Jones, James P. Eagleson, and Richard G. Miller, for appellees.




This was a petition for an issue devisavit vel non. The estate in question was estimated at from $300,000 to $400,000, about $125,000 of which, comprising the personal property, had been accounted for by the appellee, as executor, and distributed under a decree of the court below before these proceedings were commenced. In refusing the issue, the court found, inter alia, the following facts: That the testatrix, Elizabeth Phillips, was a widow without children and had no relatives nearer than first cousins; that she made and executed her will on April 12, 1909, when seventy-three years of age, and died March 31, 1910; that the present proceedings were instituted on August 22, 1911; that during her entire life she was "normal in her physical make-up and in her mental endowment"; that she had a common school education and took an active interest in the management of her business affairs and in running her house and farm; that she read the newspapers, attended church services, "was sensible in her views of life," and "nothing could be said against her moral character"; that she was "above the average country woman in her knowledge of affairs and of business"; that she lived with a sister, "Lucinda Hill," who died September 3, 1908; that there had never been any great intimacy between the two sisters and their cousins, the contestants, and "both Lucinda Hill and Elizabeth Phillips appeared to think that their cousins did not treat them as they should have done"; that Charles Miller, the proponent, is the son of James M. Miller, a business man who conducted a general store and a bank in the vicinity of the decedent's home and for years had been intimate with her father and his family; that the proponent was known to Mrs. Phillips and her sister Lucinda ever since a boy, and in the year 1902 or 1903 they asked him to look after "such of their business as they wished to give into his charge"; that thereafter Charles Miller made frequent visits to the home of the testatrix, was kind and attentive to her and active in the management of her business affairs; that he attended to selling considerable of her real estate and to the investment of her money; that in course of time, as the real estate was disposed of, a great part of the proceeds came into his hands, and, at the request of Lucinda Hill and Mrs. Phillips, was deposited or reinvested in notes directly in his name, that to secure them, "when he received these notes in his own name for their money and received these certificates of deposit he turned them over to the custody of Miss Hill and Mrs. Phillips, and he also kept a book account of his own with them in which he charged himself every time he received any of their money"; that T. F. Birch, Esq., a member of the Washington County bar, of high standing, who had represented the decedent and her family for some years drew the will in controversy; that Mr. Miller accompanied the decedent to Mr. Birch's office, at her request, and when they arrived she informed the attorney that she wanted to make a deed to Mr. Miller, conveying the coal under a large and valuable piece of land owned by her; that after this deed was prepared, she stated that she desired to make her will; that she spent the greater part of the day with Mr. Birch and his stenographer, and, without any memoranda previously prepared gave specific directions for the eighty-nine bequests which appear in the will, in almost every instance recalling the name of the person she desired to designate; that after this had been done, Mr. Birch asked her to whom she wanted the rest of her estate to go, and she said "Charles Miller," also naming him as her executor; that Mr. Miller was not in the office during the preparation of the entire will, but he was in and out; that he took Mrs. Phillips out to midday dinner, and in a short time came back with her; that when the dictation was completed, he accompanied her to the house of a friend whom she desired to visit, and remained with her while the will was being transcribed; that he returned with her, and just prior to signing the will, Mrs. Phillips affixed her signature to the deed and handed it to Mr. Miller, saying, "This is yours"; that she then executed the will in the presence of Mr. Birch and Miss Patterson, the stenographer, and it was put in the former's safe; that the deed was not recorded until after Mrs. Phillips' death, and in the meantime the land continued in her name; that, "after the deed had been executed and delivered and the will made, Mrs. Phillips made declarations to different parties tending to show she had full knowledge of what she had done" and that the will was her own deliberate act; that she stated, inter alia, she had been to Washington, had seen her attorney and arranged her business as she wanted it, and that she had carried out a promise made to her sister on her death bed and "fixed everything for Charley" (meaning Charles Miller); that to one of the witnesses, she said, concerning her will, "I think it will surprise some of the people and I hope it will." Under the heading of "Facts Not Found," the court states that there was no testimony to show that the testatrix was in any sense "mentally incapable of making a will," that "any improper relations ever existed between Elizabeth Phillips and Charles Miller, or that the relation between them was different from that which might very properly be expected between persons who sustained the business relations to each other that they did"; further, that there was no testimony to show "that Charles Miller ever practiced any deceit or fraud on Elizabeth Phillips or that he ever attempted to prejudice her against her heirs at law, or that he ever suggested to her that she should make a will or what provisions should be in it if she made one, or that he ever indulged in any flattery of Mrs. Phillips."

Mr. Birch, the attorney, died before the hearing, but Miss Patterson, the stenographer, was produced as a witness, and testified that on the day the will was made Mrs. Phillips displayed a "remarkable memory," that she gave every appearance of having "a mind of her own," and was "perfectly clear upon what she wanted to do," that her demeanor indicated "she was an intelligent woman and knew what she was doing," and that when Mr. Birch advised her against a bequest of $10,000 she wanted to make to the county for the redemption of bonds, she insisted upon having her own way in the matter. The witness stated that Mr. Miller was present during the dictation of the first sixteen paragraphs of the will, and left immediately thereafter, that he was in and out of the office during the afternoon session, but was not there when Mr. Birch asked the testatrix concerning the disposition of her residuary estate, and, finally, that Mr. Miller took no part in the preparation of the will, -- "he did not say anything" or "make any suggestions." The witness said that from time to time as various parts of the will were prepared they were read over to Mrs. Phillips and she placed her name on each page as she approved it. Charles Miller testified that he never made any suggestions to the testatrix concerning the disposition of her property, and that when he accompanied her to Mr. Birch's office he did not know that she intended to make a will or to designate him as her residuary legatee.

The will consists of the usual introduction, a direction that all collateral inheritance taxes shall be paid out of the residuary estate, and a setting aside of $10,000 to maintain the family cemetery lot; then follow eighty-nine tersely stated provisions disposing of lands and moneys to public institutions, friends and relatives -- among others $10,000 to the County of Washington for the redemption of court house bonds, bequests to churches in the vicinity, to the board of home missions and foreign missions and religious societies in Pittsburgh, to certain school districts, to charitable associations, and to the Washington County Home, then a devise of the surface of a 120 acre farm to Charles Miller, and another of the surface of a seventy-four acre farm to one Mark Galway, who for years had been a tenant on the land; after which came the residuary provision and the appointment of the executor.

There is but one specification of error and that goes to the final decree refusing the issue; there is no assignment to any of the findings, and no exceptions thereto appear to have been taken in the court below (Bull's App., 24 Pa. 286; Robb's App., 98 Pa. 501). We have read the testimony, however, and are...

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