Williams v. McCarroll

• Decision Date: 25 May 1953
• Citation: 97 A.2d 14,374 Pa. 281
• Parties: WILLIAMS v. McCARROLL et al.
• Court: Pennsylvania Supreme Court

97 A.2d 14

374 Pa. 281

WILLIAMS v. McCARROLL et al.

Supreme Court of Pennsylvania.

May 25, 1953

Appeal from opinion and order of Court of C. W. Kreisher, President Judge of the 26th Judicial District, Specially Presiding in the Court of Common Pleas of Carbon County as of No. 6 October Term, 1947, in an issue devisavit vel non. The Supreme Court, Bell, J., No. 32 January Term, 1953, held that under evidence decision of judge that evidence of contestants was insufficient to justify jury verdict in favor of contestants, and that evidence in favor of proponent of will justified setting aside jury verdict and granting proponent's motion for judgment n. o. v., could reasonably have been reached by judicial mind, and judgment n. o. v., would be affirmed.

Affirmed.

Frank X. York, Mauch Chunk, for appellant.

John H. Bigelow, Hazleton, Bernard J. Duffy, Jr. and Bernard J. Duffy, Sr., Tamaqua, John G. Cipko Nesquehoning, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL Justice.

Thomas McMullen, a single man, died August 1, 1945, having made this contested will on February 9, 1945. Two questions were submitted to a jury for determination: (1), did McMullen on February 9, 1945 have testamentary capacity, and (2) was his will obtained by undue influence? The first jury was unable to agree whether McMullen had testamentary capacity, but found that his will was not obtained by undue influence. On a retrial the jury found that McMullen did not have testamentary capacity to make and execute a valid will on February 9, 1945, and that the will was obtained by undue influence practiced upon McMullen by his nephew, Russell Williams. The Chancellor who saw and heard the witnesses entered judgment non obstante veredicto. The testimony exceeded 1,000 pages, so it will be necessary for us to briefly summarize what we consider to be most important.

The will (or alleged will) gave his sister Margaret, with whom he had lived for 60 years, all his property for life with power of consumption for support and welfare; and upon her death the property remaining was given to Margaret's son, Russell Williams, except for 3 legacies of $1,000 each. Russell Williams lived with his mother and Thomas McMullen and was the latter's frequent companion; the contestants rarely ever saw their uncle and were not on friendly terms with him.

Plaintiff proved the will by two disinterested subscribing witnesses and rested. Contestants then produced 7 witnesses, all of whom were interested, who testified that decedent was of unsound mind and incapable of making a will. Most of them had not seen decedent for two years prior to the will but they testified that he acted funny, mumbled, rambled, was incoherent, had peculiarities, had a blank look on his face, did not recognize them, suffered from loss of memory, and did a number of things which a rational man would never have done. Several additional witnesses corroborated them in small details. Two doctors who saw testator five months after he made his will testified that he was in their opinion incapable of making a will, since he was suffering from senile dementia caused by arteriosclerosis. However, it was admitted that it was possible for a person with that disease to have lucid intervals, and the testimony of the doctors was considerably shaken on cross-examination. Another witness for contestants, Judge McCready, expressed the opinion that during 1943 a guardian should have been appointed for McMullen. He further testified that in his opinion McMullen was mentally ill; but he had no knowledge of deceased's mental capacity during February, 1945, and was unable to say whether McMullen was qualified to make a will at that time.

Plaintiff then produced 12 witnesses (in addition to himself and the 2 subscribing witnesses), and decedent's attorney who drew the will and had known decedent intimately for 45 years, and two doctors, one of whom had been the family doctor who had seen and treated testator every two weeks for the last six to eight years of his life. Most of these witnesses including the family doctor and decedent's attorney were disinterested witnesses, and the lengthy testimony of the attorney was especially strong and convincing. From a reading of the Court's opinion it appears to us that he believed plaintiff and his witnesses and doubted or was unimpressed by defendants' interested witnesses and doctors.

We quote the following excerpts from the very able opinion of President Judge Kreisher, who was specially presiding:

‘ This was a trial of an issue devisavit vel non .

‘ The plaintiff-proponent made out a very strong ^[1] prima facie case by the proof of the document's execution and the subscribing witnesses. * * *

‘ * * * It is * * * the rule in Pennsylvania that in every case in which the question of testamentary capacity and the allegation of undue influence is presented to the court for determination, it is important to examine the disputed document itself to ascertain whether the testamentary scheme is natural and reasonable and in harmony with the family background. We have quoted the contested document above with the foregoing principles in mind, and we at first observe that Mr. Hollar and Mr. Frantz, the subscribing witnesses, were both disinterested in the outcome of this controversy, and in no way related to any of the parties. We also note that the document was prepared by the decedent's own attorney, in the attorney's office, and that the decedent's own physician at the time of the execution of the document issued a certificate, certifying that the decedent had the mental capacity to execute a will . It is announced in all of the late cases in Pennsylvania that we have examined, that less capacity is required to make a valid will than is sufficient in most cases to transact ordinary business, and that the capacity of the testator at the time of the execution of the will is the decisive and focal point of the inquiry. In analyzing the contents and dispositions made in the disputed document itself, we find that the testamentary scheme therein set forth is, in our opinion, a natural and reasonable disposition, and in harmony with the family background . The testimony clearly indicates that the decedent lived approximately sixty years of his life with his sister, Margaret Williams, and that the chief beneficiary, Russell Williams, grew up in the same household with the decedent. The testimony further shows that Russell Williams, after the deceased's retirement, befriended his uncle and gave all his time and talents for his uncle's comfort. He drove him to various doctor's offices for treatment of his physical ailments; he took care of his clothing needs, and it appears that the decedent was always an immaculate dresser.

‘ In contrast to this, the contestants in the case admitted that they only infrequently visited or saw their uncle; that they were not on friendly terms with Thomas McMullen or his sister, Margaret Williams. It further appears that Edwin Williams, a brother of Russell Williams, who also grew up in the home of Thomas McMullen, left the home a number of years before Mr. McMullen retired, and that he was not in the daily contact with his uncle that Russell Williams was. So that from an analysis of the will itself, the testamentary scheme in our opinion is natural and reasonable, and in harmony with the family background. * * *

‘ Doctor Robert A. Christman has engaged in the practice of medicine at Lehighton for a period of thirty-five years. He testified that he treated Thomas McMullen as a patient from 1941 up to 1945, and that he saw him about every two weeks. He testified that decedent had some trouble with his prostate gland and other ills. He testified that on February 8th, 1945 Mr. McMullen came to his office in company with Russell Williams, at which time he was asked to certify that Mr. McMullen was mentally fit to make a will, which certificate he did make and give to Russell Williams. He was informed that Mr. McMullen was brought to his office for the purpose of getting this certificate at the request of Frank Riordan, the Attorney and scrivener of the questioned document. He testified that he did not examine him to test his mental faculties, and that he was not a psychiatrist or alienist, but that in his opinion Thomas McMullen was of sound mind. * * *

‘ Frank S. Riordan, Esquire, testified that he is a member of the Bar of the County of Carbon and of the Supreme Court of Pennsylvania; that he resides in the Borough of Lansford and has practiced law since April, 1916. He testified that he was acquainted with the deceased from the time he was a small boy and knew him intimately since the summer of 1900 . * * * on January 13th, 1945 he states that Mr. McMullen, the deceased, told him that he wanted to make out a power of attorney to give Russell Williams the authority to do business for him. That in consequence thereof he prepared a general power of attorney and told him to take it out and have it executed. This power was subsequently executed before Justice of the Peace Hollar in Summit Hill.

‘ He testified that on February 8th, 1945 Russell Williams came to his office and told him that his uncle wanted an appointment to make a will. He asked Russell where his uncle was, and he stated, ‘ He is outside.’ The witness then said he asked Russell, ‘ Why don't we do it today?’ Russell told him that they had to go to Lehighton after lunch, that his mother and his uncle were going down to see Doctor Christman. Thereupon the witness stated that he told Russell when you are taking your uncle down to Doctor Christman, ‘ have the doctor look him over and give you a statement that he is able to make a...