Cawley's Estate , 162 Pa. 520 ( 1894 )

Opinion by

Mr. Justice Williams,

A connected statement of the facts relating to the two wills signed by Mary Cawley will reduce the ground of controversy in this case within very narrow limits. Benjamin and Mary Cawley were brother and sister. Both were unmarried. They had lived together for many years, and in 1886 were both aged and infirm. The house in which they lived belonged to Benjamin and was worth some three or four thousand dollars. Mary owned some bank stock amounting to near the same sum. Their furniture seems to have been owned in about equal parts by each of them. It is apparent that in 1886 both of them realized fully that they had not long to live, and that the survivor of them would need all that both owned in order to his or her comfort during the survivorship. They accordingly sent for counsel and had a will prepared to be executed by both, so that the estate of the first to die should pass to the survivor for life, and disposing of the remainder in a manner that was at the time satisfactory to both. They executed this will in 1886. Benjamin died in August, 1887. The ‘double will was then probated as the will of Benjamin and letters testamentary issued to the executor named therein. In September, 1887, Mary, having apparently changed her mind as to the disposition of her own separate estate, made a new will naming a different remainderman, and executor, from that named in the double will which had been probated as the will of her brother. She died in January, 1888. The executor of the double will thereupon presented it again to the register, and it was admitted to probate as the will of Mary Cawley, and letters testamentary issued to him thereon. After this was done the second or separate will of Mary Cawley was presented to the register by John Harrison Cawley, the executor named in it. He was informed of the probate of the double will, and the issuing of letters testamentary to Horace B. Cawley, and did all that was left for him to do, viz : he took an appeal from the decree of probate upon the double will, alleging that the will so proved was revoked by the later will in his possession.

The answer made by H. B. Cawley was, in substance, that the double will was a contract as well as a will, and that it was not in the power of Mary to revoke it after the death of her brother and its probate as his will. This was the question heard and determined in the court below on that appeal. It was the only question heard and determined in this court when the appeal was heard here : Cawley’s Appeal, 136 Pa. 628. The learned judge of the orphans’ court held that the double will was revocable notwithstanding the death of Benjamin Cawley, and that the legal execution of a later will amounted to a revocation. From this ruling H. B. Cawley, executor named in the double will, appealed to this court. He sought to maintain the position, taken in the court below, that Mary Cawley could not revoke the double will, but was bound by it as to her separate estate by her acceptance of a life interest under it from her brother. The appellee contended on the other hand that the will signed by Benjamin Cawley and his sister was revocable by either, and that the decree of the orphans’ court should be affirmed. This was the precise question raised and determined. In concluding the opinion in Cawley’s Appeal we said that the double will was revocable by the testators in the same manner that separate wills would have been, and added: “ Benjamin Cawley did not revoke and his will is to be executed according to its terms. Mary Cawley has exercised the power of revocation and changed the ultimate destination of her property. Her last will must be followed therefore in the distribution of her estate.” This was said with reference to the question then before us, which was whether the double will was revocable or not. If it was not revocable then the decree of probate appealed from was right, and the double will controlled. If revocable, then the last legally executed will, which it was alleged superseded the first, was entitled to probate so far as this question was concerned. When offered for probate it was subject to the same objections as it would have been if the double will had never been executed or proved. It is probable that the learned judge of the orphans’ court, had all the facts that now appear been brought to his attention on the hearing of the appeal from the probate of the double will, would have opened the decree of probate and directed the contestants to produce the second will and proceed to make proof of its execution and validity in the usual manner. Both wills would then have been before the register and the court below at the same time. The legal question over the power of revocation, and the question of fact over the actual revocation would have been considered at the same time, an issue devisavit vel non directed to determine testamentary capacity, and a final order deciding which of the two wills was the last will and testament of Mary Cawley would have settled the whole contention. But the facts did not appear. The former appeal turned upon the power of revocation. The second will is now offered for probate and it is the duty of the proponent to establish its validity in the usual way. It is not a valid revocation of the double will, unless it is a valid will executed by one having testamentary capacity and without undue influence. These questions have not been heard. The proceedings in the first appeal might have taken such shape as to enable the parties to raise them, but they did not. They are now raised regularly. The validity of the separate will as a revocation of the double one depends upon them, and the appellant has a right to be heard upon the testator’s capacity and upon the exercise of undue influence over her. If the proponent can establish the alleged last will he will take under it. If he cannot, then he has no right to complain if the first or double will be again admitted to probate upon his failure to establish its revocation after full opportunity to be heard upon that subject.

The decree appealed from is reversed and the record remitted for further proceedings in accordance with this opinion.