Trainer v. McGarrity , 1909 Pa. Super. LEXIS 564 ( 1909 )

Opinion by

Henderson, J.,

Two questions were at issue in the trial of this case: (1) Was the testator of sound mind; (2) was the testator a subject of undue influence at the time of the execution of the will. The first was not pressed at the trial and it is not now contended that the evidence was sufficient to support a verdict on that ground. The real controversy was on the allegation of undue influence. Complaint is now made that the case should not have been submitted to the jury because one of the contestants named in the precept of the register had died in the meantime. No objection was made during the progress of the trial on that account, however; the interest of this deceased party is not represented in the appeal and the subject is not before us on the record. The appellants were not prejudiced in any way by the fact and have not shown us how they can legally bring that matter to our attention in this proceeding. The heirs of the deceased party are not complaining, and the only persons liable to be disadvantaged are the appellees.

In any aspect of the case as developed at the trial the will of John Loughran was not competent evidence. He was the husband of the testator and died a long time before his wife and .nothing in his will tended to show that undue influence was brought to bear on his widow when she made her will. Its admission would have diverted the attention of the jury from the question they were charged to consider and would have led them into an examination of the condition of the estate of John Loughran and an inquiry whether Mrs. Loughran had executed the power committed to her by her husband’s will. These matters were in no way connected with the execution of Mrs. Loughran’s will and could not have aided the jury in determining the question before it. If we assume that Mrs. Loughran disregarded the directions contained in the power in the will, that does not at all support the allegation that some controlling influence directed her and this is practically admitted by the learned counsel for the appellant who, while conceding that the evidence was not necessarily indicative of that which he sought to establish, yet thought that it was proper for the consideration of the jury in weighing the whole evidence. Unless, however, it tended to support the issue it was not admissible. But it is said that the most serious practical result of this ruling was that several parties to the issue were thereby disqualified. We do not find anything in the record, however, which shows such a consequence. The jury was sworn as to all the parties named in the register’s precept; no action was taken excluding any one of them; the appellees made no objection to the presence of any of the defendants on the record, nor do we find that the rejection of the will resulted in the exclusion of any testimony offered by the contestants. There is no ground, therefore, for the conclusion that the jury supposed that any of the contestants had lost their standing. The only thing to be considered in the case tried was whether the document presented for probate was the lawful will of the testator. It did not involve the question as to the proper exercise of the power conferred by the will of John Loughran.

The allegation of the contestants was that Catherine Grogan, a cousin, and Rev. P. J. Flaherty, a spiritual adviser of the testator, had exerted the influence of which the appellees complain. In support of this charge it was proposed to show that the testator conveyed to Catherine Grogan a house and lot in the city of Philadelphia. When this was done with reference to the date of the will does not appear, nor is there any fact or circumstance connected with the transaction offered or suggested which tended to impeach the fairness of the conveyance or to show that it was not a free and voluntary act on the part of the grantor. The court would not have been justified in saying that that was evidence of undue influence, nor would the jury have been warranted in reaching such a conclusion. Along the same line it was proposed to prove that Mrs. Loughran had withdrawn, at one time, $1,200, and at another time, $5,000, from a savings bank in which she made deposits, and that Catherine Grogan was with her. There was not any offer to show that this was done at the instigation of Miss Grogan or that she received any of the money, and the counsel for the appellants frankly admitted that they were not able to prove what Mrs. Loughran did with the money so taken from the bank. To submit a case on such evidence as this would invite the jury into the realm of the widest imagination and let speculation take the place of proof. The evidence must have a logical tendency to exclude the presumption of the absence of undue influence.

It is not easy to see what pertinent argument the learned counsel proposed to make from the evidence offered to show that the “ecclesiastical faculties” of Rev. P. J. Flaherty had been withdrawn by the church to which he belonged on charges preferred against him, and that he had been “subject to frequent and repeated censures for misconduct in connection with thrusting yourself into the affairs of people and inducing them to make and alter wills,” and that he was in default for a large amount as an executor of two estates. Keeping in mind that the charge was that he exerted undue influence over the testator it is obvious that this course of examination did not tend to support the issue but would have led into an inquiry on subjects not even remotely connected with the case before the court.

The tenth assignment presents a portion of the charge of the court. The part particularly objected to is that in which the court said to the jury that before they could say that any undue influence was exercised by Catherine Grogan they must be able to say that at the time of making the will Mrs. Loughran was “insanely influenced” by her to make a will which she otherwise would not have made. This was probably suggested by the fourth, fifth and sixth points presented by the counsel for the appellant in which the court was requested to charge as to the effect of insane delusions existing in the mind of the testator under the influence of which she made her will. It was an instruction quite apposite in connection with the last of the points above referred to. Whether the words are susceptible of the construction put on them by the appellants it is not necessary to consider, for the attention of the court was immediately called to the language used and the court at once renewed the instructions omitting the words objected to and stating the law correctly and in substantial accordance with the position taken by the appellants’ counsel at the trial. Taking the charge as a whole the case was carefully and clearly presented to the jury and the law applicable to the case correctly stated.

We are not persuaded that any of the assignments should be sustained.

The judgment is affirmed.