Kesler v. Hugus

Opinion by

Mr. Chief Justice Moschzisker,

Nine separate appeals, which we shall dispose of in one opinion, are before us in the present case, all taken by beneficiaries under the will of William A. Nicolls, deceased, from a judgment, entered pursuant to a verdict for the contestant, in an issue devisavit vel non, granted by the orphans’ court, and certified to the Common Pleas of Westmoreland County, for trial of the following questions: “(1) Whether or not the paper writings alleged to constitute the last will and testament of William A. Nicolls were procured by fraud or undue influence, operating on the mind of testator and controlling the disposition of his property to the extent that he gave it to collateral heirs instead of his lineal descendant? (2) Whether the will of testator is inofficious or unnatural? and, (3) Whether the probate of this alleged will should be set aside and the letters testamentary ......revoked?”

TJpon an investigation of the record, we have reached the conclusion that there was no evidence produced sufficient to carry the case to the jury; therefore it is necessary to consider only the twelfth assignment of error, which complains of the refusal of judgment non obstante veredicto.

Contestant, who was defendant in the court below, is testator’s son; his father and mother were married in 1865, and lived together about a year, when they separated permanently, Mrs. Nicolls returning to her parents’ home, where contestant was born January 7, 1867. On March 31, 1869, Nicolls was granted an- absolute divorce from his wife, and contestant grew to manhood in his mother’s care, adopting her family name and calling himself Samuel O. Hugus. April 2, 1898, decedent made the will here in controversy, and subsequently executed two codicils, dated November 24,1911, and November 6, 1913, respectively; he died October 8, 1914. By the terms of the will and codicils, testator’s property was given to certain collateral heirs, none going to contestant.

The court below, while apparently agreeing there was no direct evidence of fraud or undue influence, operating on the mind of testator, at the times the will and codicils were executed, nevertheless thought sufficient facts and circumstances, indicating such to be the case, appeared to warrant the submission of the issues involved to the jury.

Appellee’s counsel devote their brief of argument to the point that there was evidence to justify the course pursued by the trial judge, but to this we cannot agree.

The law on the general subject in hand has been so thoroughly considered by us in several recent cases, it would serve no useful purpose to go over the field again at this time: see Phillip’s Est., 244 Pa. 35; Herr’s Est., 251 Pa. 223; Gongaware v. Donehoo, 255 Pa. 502; Warton’s Est., 256 Pa. 201; Watmough’s Est., 258 Pa. 22; White’s Est., 262 Pa. 356; Kustus v. Hager, 269 Pa. 103; Tetlow’s Est., 269 Pa. 486. It is sufficient to say, we have before us a case where the testator had the benefit of advice of counsel, and his will was executed, at a time when none of the beneficiaries were present, pursuant to an oft-repeated, openly expressed intention to disinherit a son who had so far repudiated his father as to refuse his name; which fixed purpose was deliberately persisted in over a period of sixteen years, as evidenced by the republication of the will on two occasions; while, on the other hand, to strike down this solemnly made and twice republished testamentary instrument, we have a mere mass of oddly assorted circumstances and inconclusive statements, in which, together or singly, no good reason can be found to justify that course.

The evidence was insufficient to carry the case to the jury, and the court below erred in submitting it, as may be seen by considering the facts hereinbefore stated and those shown by the testimony published in the notes of the Reporter.

The judgment is reversed, and judgment is here entered for plaintiff.