May v. Fidelity Trust Co.

Opinion by

Mr. Justice Allen M. Stearne,

The appeals are from a judgment of the Common Pleas Court of Allegheny County non obstante veredicto in favor of proponents in a will contest. The issue was devisavit vel non. The verdict of the jury was in favor of contestants, who alleged undue influence.

The cogent relevant testimony may be stated with comparative succinctness, despite a trial which took ten and one-half days. There are 184 exhibits with a printed record of 1816 pages. The detailed narrative of facts may be found in the opinion of the hearing judge in the orphans’ court refusing an issue (printed in supplemental record), in the majority opinion of that court reversing the hearing judge, and in the opinion of the court in banc in the common pleas entering judgment for proponents n.o.v.

The decedent, Anna A. Frank, a widow, died April 11, 1947. Her heirs and next of kin were a daughter, Florence F. May (a proponent) and two minor grandchildren, Stephanie Frank and Ann Frank (contestants), children of a deceased son, Herbert I. Frank. The daughter Florence is married to Harry L. May and has two children, Herbert L. May and Marion May Linton (also proponents).

The personal estate of decedent is said to aggregate approximately $600,000. Any ownership of real estate is not disclosed by the record. Decedent left a will dated February 6, 1946, prepared by an attorney, executed by her and witnessed by the lawyer-scrivener and his secretary. Under its provisions $1,000 was bequeathed to a cemetery association for perpetual care of the burial lot. All clothing, furniture, household goods and personal effects were bequeathed to decedent’s daughter Florence. The residue was divided as follows: two thirds absolutely to the daughter Florence. The remaining one third was placed in trust for the daughter’s two children, Herbert L. May and Marion May Linton. There are contingent provisions relating to possible deaths of the daughter and her two children without leaving issue, whereupon the daughter’s husband, Harry L. May, is given a life estate with remainder to surviving children of the deceased son (the contestants). In the event of the death of such named beneficiaries, the trust estate is passed to decedent’s niece and nephew.

Except for the remote recited contingency, contestants, the children of her deceased son, Stephanie and Ann, were disinherited. By the fourth item of the contested will decedent stated: “I having heretofore made substantial gifts to Stephanie Frank and Ann Frank, children of my deceased son, Herbert I. Frank, and being satisfied they will also be assured of ample funds from the estate of my deceased husband, Abraham Frank, I therefore give, devise and bequeath [as recited above].”

The daughter Florence was named as executrix, and in case of her inability to act then testatrix’s son-in-law, Harry L. May, was substituted. Should both be unable to act decedent directed that a trust company be selected in tbe manner indicated by tbe will.

In the opinion of Judge Kennedy speaking for tbe court in banc when entering tbe judgment n.o.v., it is stated: “The contestants have conceded the testamentary capacity of Anna A. Frank since early in tbe bearing in tbe Orphans’ Court. Tbe contestants at this trial also conceded that tbe testimony in their behalf did not warrant a conclusion that Anna A. Frank was, at the time of the execution of tbe will, or any time thereafter, a person of greatly weakened intellect, considering her age and physical disabilities, and therefore agreed that tbe burden of proving undue influence, misrepresentation, etc., remained with them.”

Tbe accuracy of Judge Kennedy’s statement is supported by tbe opinion of decedent’s family physician and contestants’ witnesses, referred to in tbe opinion as follows: “ [Tbe doctor] did state that except for tbe few occasions when Mrs. Frank was in a diabetic coma, that she remained mentally strong and alert, considering her age and her physical ailment, up until tbe time of her death. It might be here mentioned that all of tbe contestants’ witnesses agreed that Mrs. Frank was a woman of high intelligence and mentally strong.”

It is freely conceded that Harry L. May, tbe son-in-law (a proponent), tbe lawyer who drafted tbe will, occupied a confidential relation toward decedent. In tbe opinion of tbe court in banc it is said: “It was clearly shown that by [May’s] own testimony, and bis own admission that be stood in a highly confidential relationship with Mrs. Frank.”

Tbe testimony must be reviewed in the light of tbe conceded facts that decedent possessed testamentary capacity, and her mind was not weakened either by mental or physical affliction, and that tbe husband of the chief beneficiary and the father of the other two legatees, occupied a confidential relation toward decedent.

According to the testimony of Mr. and Mrs. May, after her son’s death on January 5, 1946, decedent informed them that she desired to make a new will; that she took her former will of 1936 wherein her son, to his dissatisfaction, was given but a life estate in one-third with remainder to contestants; and that decedent went over the will with the Mays item by item. Decedent informed them that she did not want any of her money to go to the family of the widow of the son and that she was not leaving anything to contestants because with their shares in her late husband’s trust and under their father’s will they would be amply provided for. Mr. May testified that he made elaborate notes of her instructions. Later in his office in Steuben-ville, Ohio, Mr. May testified that he drafted the will in accordance with her instructions and on February 2, 1946, he went over, the draft with decedent item by item, and. every paragraph' was carefully discussed and explained. He further testified that he requested decedent to call her bank and have them recommend a Pittsburgh firm of attorneys. Decedent did this and one of the leading firms of Pittsburgh, that of Reed, Smith, Shaw and McClay was selected. Mr. May testified that a lawyer in Steubenville told him that James H. Beal,. Esq., was a member of that firm; in consequence Mr. May telephoned Mr. Beal and arranged for his firm to write the will of decedent according to the draft of the will to be forwarded to the firm. Following such telephone conversation the following letter was sent:

“Harry L. May

Attorney at Law

Steubenville, Ohio

February 4, 1946

“Reed, Smith, Shaw & McClay,

747 Union Trust Building,

Pittsburgh, Penna.,

Attention James H; Beal, Esq.,

Dear Mr. Beal:

“In accordance with our telephone, conversation this afternoon, I am enclosing herewith carbon copy of will of Anna A. Frank of Pittsburgh.

“I would request that you have an origional [sic] and two carbon copies made in your office and Mrs. Frank and myself will be present for execution of the same on Wednesday February 6th at 2:00 P.M.

“As explained to you in our conversation, I, being á son-in-law of Mrs. Frank and my wife and children being beneficiaries under this will, do not desire the slightest question being raised as to undue influence or otherwise; hence deemed it proper that the matter be consumated in your office in order that whoever you may delegate to take care of the same in your absence will be in position, if necessary, to so testify.

“Please understand I do not anticipate any question arising regarding this matter and am only taking this course in order that there can be no possible criticism on account of my preparing the will which was done at the express request of Mrs. Frank.

“Trusting to have the pleasure of meeting you personally at some time in the near future, I remain

Very truly yours,'

(s) Harry L. May

Harry L. May

M/m enclos.”

At the appointed day and hour Mr. May together with his son accompanied decedent to the office of Messrs. Reed, Smith, Shaw and McClay where they met Frank W. Ittel, Esq., who had been delegated by the firm to perform this professional service. Neither decedent nor Mr. May had ever met either Mr. Beal or Mr. Ittel before this time. Decedent was conducted by Mr. May into Mr. Ittel’s office. It was testified by Mr. Ittel that for approximately an hour he went over the will with decedent alone in his office. He said that decedent told him what she wanted to do with her property and who were the members of her family and why she was making this testamentary disposition; she also told him the reason for her exclusion of contestants because they would jointly receive from decedent’s husband’s trust and from their father approximately $1,000,000. Mr. Ittel further testified that after going over the will carefully with decedent she expressed her satisfaction with it. Mr. Ittel then called in his secretary, Miss Esther S. Sehucker. Decedent executed the instrument and Mr. Ittel and the secretary signed it as witnesses in her presence and in the presence of each other. As subscribing witnesses they later proved their signatures at the probate of the will.

After executing the will decedent, in company with Mr. May and his son, went to the trust department of the Union Trust Company, in the same building as the offices of Beed, Smith, Shaw and McClay. She there left the will, and took a receipt, and the document was placed in the bank’s vault for safe keeping. The following day the bank mailed a letter to decedent, acknowledging receipt of the new will and enclosed the old 1936 will. The will remained in the bank until after decedent’s death on April 11, 1947 (about fourteen months). Meantime decedent had retained a carbon copy of the will.

The testimony on behalf of contestants in support of their allegation of undue influence is wholly circumstantial. No witness of either proponents or contestants testified that Mr. or Mrs. May had ever mentioned in their hearing the subject of will or testamentary disposition. Certainly no evidence of importunity to make any testamentary disposition by any of proponents appears in the record. The circumstantial evidence is substantially as follows: Decedent’s maid, Minnie Byrd, said Mrs. May ivas “always bossy and domineering” toward her mother; that in April or May 1946, after the Mays left, decedent said to her, “The May’s made me do something, and won’t let me change it.” Also, “I would like to change my will, but, they will think I am crazy.” Gertrude Tucker, a nurse, testified that in January, 1946 she heard loud talking coming from the living room (where decedent was with her daughter and son-in-law) and later said decedent told her “that she wished she could undo what she had done.” Agnes Maloney, another nurse, said that Mrs. May was importuning her mother to give her a letter of attorney to sign checks but that decedent refused to do so. Ina Johnson, a nurse, testified that Mrs. May was rude, abrupt and argumentative with her mother. She also testified that she had found torn check stubs in a waste basket after decedent’s death, indicating that checks had been drawn by decedent to the order of the son’s widow and to contestants, but had been destroyed by the daughter. There was also testimony that one of the contestants had endeavored to cash the checks at the bank, the day after the death, but could not do so because of decedent’s death. Catherine Dillon, another nurse, who daily bathed and massaged decedent, said that on the day, February 6, 1946, when decedent executed the will, she was crying and unsettled and said she was going to town with Mr. May and her grandson because “she had to go.” Elizabeth Boe, a nurse at a hospital where decedent was a patient from October 17, 1946 until early January, 1947 testified that the daughter Florence was a patient in another room in the hospital and telephoned her mother, permitting her to believe she was in Steubenville; that she directed the nurse not to permit the son’s widow to visit her mother except in the presence of a member of the May family; Lila C. Carney, a beautician, said she heard frequent arguments between the mother and daughter but on cross-examination did not relate a single incident wherein the daughter had prevailed. She also testified that the daughter, after the death, attempted to bribe her to become proponents’ witness. Dennis Robinson, decedent’s chauffeur, testified that the daughter was bossy and domineering toward her mother; Marie Labuda, a hospital nurse, heard the daughter call her mother “an old fool” and that when her mother would not do as the daughter wanted she would use profane language towards the mother. Mr. Ruslander, a highly reputable member of the Allegheny County bar, who had been decedent’s attorney, testified that after the son’s death he made a condolence call, and she told him that she knew of her late son’s dissatisfaction with the 1936 will but that she was going to correct this by a codicil or by gifts. The above testimony constituted the basis of this will contest.

In our recent decision of Williams v. McCarroll, 374 Pa. 281, 97 A. 2d 14, Mr. Justice Bell exhaustively reviewed the field of will contests: when issues devisavit vel non should be granted or refused, the functions of hearing judges and of juries in such issues, and when, after a trial and verdict, a judgment-wow obstante veredicto should be entered or withheld. The pertinent statutes and cases were cited and discussed.

The measure of testimony requisite to establish the existence of undue influence sufficient to set aside a will is imprisonment of the body or mind, fraud, threats, misrepresentation, circumvention, inordinate flattery, physical or moral coercion such as to destroy decedent’s free agency and to operate as a present restraint. Phillips’ Estate, 244 Pa. 35, 90 A. 457, frequently cited, is probably the leading case expounding this doctrine.

And, as in the present case, where decedent’s testamentary capacity is conceded and there is no evidence of weakened intellect, either because of mental or physical affliction, the burden is upon those who assert undue influence to prove it even when the bulls of the estate is left to one occupying a confidential relation: Phillips’ Estate, supra, p. 44, with the many cases therein cited. See also Ash Will, 351 Pa. 317, 41 A. 2d 620; Quein Will, 361 Pa. 133, 145, 62 A. 2d 909; Snedeher Estate, 368 Pa. 607, 84 A. 2d 568; Roberts Will, 373 Pa. 7, 17, 94 A. 2d 780.

The right of a trial court to enter judgment non obstante veredicto has been so well established that discussion seems superfluous. Such right, and the nature of judicial consideration in weighing the evidence has been well stated by Mr. Justice Jones in Stewart Will, 354 Pa. 288, 47 A. 2d 204, where he said, p. 294: “We do not agree, however, that, in passing upon the proponents’ motion for judgment n.o.v., the court below was required to view the verdict on the basis of the facts and inferences most favorable to the successful party. (Compare Morrish Estate, 156 Pa. Superior Ct. 394, 40 A. 2d 907.) Such is the rule in an action at law where the jury is the sole judge of the facts. But, in the trial of an issue devisavit vel non, where the trial judge sits as a chancellor, his conscience must be satisfied with the justness of the verdict on the basis of all of the evidence.. If the chancellor is not so satisfied, he may set aside the verdict even though it might otherwise be found sustainable solely upon the facts and inferences most favorable to the verdict.”

In Guarantee Trust & Safe Deposit Co. v. Heidenreich, 290 Pa. 249, 138 A. 764, Justice Walling said to the same effect, p. 251: “In [trial of issue d.v.n.] the judge sits as a chancellor, and the question is not whether some of the evidence taken by itself would support the verdict, but whether it would when considered as a whole: Fleming’s Est., 265 Pa. 399; Keller v. Lawson, 261 Pa. 489. Testamentary incapacity must be established by the weight of the evidence (Lawrence’s Est., 286 Pa. 58; see also Sharpless’s Est., 134 Pa. 250); here it clearly is not. To the chancellor the verdict is advisory; hence, in such case, the rule that all evidence in support of the verdict must be taken as true and all opposed must be rejected is not applicable. Of course, where the facts were for the jury the verdict should not be lightly set aside; but here, the proof taken as a whole was not sufficient to overcome the presumption of testamentary capacity and the case should have been withdrawn from the jury. See Tet-low’s Est., 269 Pa. 486. To warrant submitting such contest to a jury there must be such a substantial conflict in the evidence as to support a verdict for either side. See Fleming’s Est., supra; Phillip’s Est., 244 Pa. 35; Roberts v. Clemens, 202 Pa. 198; also Brehony, Exr., v. Brehony, 289 Pa. 267.” See also: Olshefski’s Estate, 337 Pa. 420, 11 A. 2d 487; Shuey v. Shuey, 340 Pa. 27, 16 A. 2d 4.

Williams v. McCarroll, supra, has so thoroughly discussed these principles and cases, including those which are herein cited, that we need not elaborate further.

Applying then these legal principles to the facts of this case it clearly appears that contestants have not met the burden :of proof cast upon them, which burden their able counsel frankly accepted. The evidence falls far short of establishing that the proponents substituted their own minds for that of decedent through fraud, deceit or undue influence. Contestants wholly failed to prove, as they were required to do, that the son-in-law, or his wife, or their daughters unduly influenced the decedent in the making of this will. And even though such rule of law concerning the burden of proof had been to the contrary, Mr. May fully met the burden. There was not the slightest indication that Mr. May and Mr. Ittel, or his associates, acted wrongfully or in collusion in order to secure the execution of the will. Decedent was not required to make an equal division of her estate. In the absence of wrongful action on behalf of proponents, which was not proven, the reason which decedent assigned for her failure to equalize distribution must be accepted. Contestants’ testimony analyzed reveals nothing but the existence of suspicion and conjecture, which we have so repeatedly stated does not constitute probative fact.

The judgment is affirmed.