Dichter Will

I fully agree that the testimony of the contestants' witnesses, whom the learned hearing judge expressly accredited, makes inescapable the award of an issue to determine whether the decedent possessed testamentary capacity at the time of the execution of his alleged will. A substantial issue of fact with respect to that question is plainly disclosed by the record. But, equally, I am unable to perceive the evidence which would justify a chancellor in accepting a jury's verdict against the will on the ground that its execution was procured by fraud and undue influence practiced upon the decedent.

The factual situation necessary to cast upon the proponent the burden of establishing affirmatively the propriety and regularity of the execution of the will is not present. It may at once be conceded that the evidence would justify a finding that at the time of the execution of the will the decedent was aged and weak in mind (whether lacking testamentary capacity or not) and that the proponent, a stranger to the blood, was given a large share of the estate by the terms of the will. But, there is nothing to support a finding that a confidentialrelation obtained between the decedent and the proponent. And, the existence of such a situation is essential to an application of the rule which the majority opinion invokes:Stewart Will, 354 Pa. 288, 47 A.2d 204; Llewellyn's Estate,296 Pa. 74, 82, 154 A. 810; Phillips' Estate, 244 Pa. 35, 42,90 A. 457; Adams's Estate, 220 Pa. 531, 533-534, 69 A. 989.

The proponent's only contacts with the decedent and his wife were when they, for business purposes, periodically visited the bank where the proponent held a responsible position. He had never visited them in their home nor had he met with them socially or for other purposes elsewhere. And, the only time he ever gave them any advice was with respect to the particular series of War Bonds best suited to the decedent's investment. For a service in such regard, the proponent had become expertly qualified for the benefit of the bank's inquiring customers in general.

The will in question, as well as a reciprocal will of the decedent's wife, was drawn by Bruce Harrison, Esq., a reputable and highly esteemed member of the Allegheny County bar. True enough, Mr. Harrison was also the legatee's attorney; and, in last analysis, it is that relationship upon which the suggestion of undue influence depends. But, the wills were drawn and executed in the attorney's office upon a visit there for that express purpose by Mr. and Mrs. Dichter (the decedent and his wife) unaccompanied by anyone else. He was not unknown to the Dichters for whom he had earlier performed a professional service. Upon going to the bank the day the wills were drawn, the decedent and his wife asked the proponent the name of the attorney to whom he had sent them before. He said that it was Mr. Harrison. They told the proponent that they wanted to have wills drawn. He asked them if they already had wills and they said they had, telling him the name of the attorney who had drawn them. The proponent suggested that they again consult the same attorney, to which the decedent demurred for a sufficient personal reason which he expressed. The proponent then called Mr. Harrison by telephone to see if he was in his office and found that he was. This telephone conversation took place in the bank lobby in the hearing of the Dichters and a bank usher who then escorted Mr. and Mrs. Dichter to the Fourth Avenue exit of the bank and pointed out the office building up-street to which they went alone to see and consult with the attorney in his office. Unfortunately, Mr. Harrison who was also a subscribing witness to the wills, died prior to the hearing in the court below on the appeal from the probate. There is not a scintilla of evidence from which it could be directly found or reasonably inferred that Mr. Harrison incorporated a single thing in the reciprocal wills other than the personally expressed testamentary desires of the decedent and his wife, unprompted and not unduly influenced by anyone.

It is, of course, unavoidably true that a reputation for honor and integrity is not a safeguard against the involvement of one's name in unpleasant litigation, even after death. But, such involvement should at least rest upon probable cause. How the evidence in this case warrants any imputation of fraud and undue influence in the execution of the decedent's will, it is not possible for me to see. Certainly a chancellor at the trial of such an issue should have more than what this record now discloses to justify him in accepting a jury's verdict against the will on that ground. Furthermore, it would seem that, upon a trial of that issue, the wife's mentality and physical condition would also be highly relevant and material. As already indicated, she executed a reciprocal will on the same day and under the same circumstances, — subsequently predeceasing her husband by a week. If she was sound of mind and not unduly influenced, she had a right to expect that the property would ultimately pass as she and her husband by their wills had reciprocally provided.

The will is by no means an unnatural one even though the proponent had seen and conversed with the decedent and his wife only upon their monthly or so visits to the bank over a period of years (about twenty). The status of "stranger to the blood" requires for its full legal import that there be blood relatives who were likely objects of the testator's bounty. In the present instance Mr. Dichter had one brother who lived in Germany and from whom he had not heard for years. It was not even known that the brother was alive. He also had two nephews, who lived in Erie, only a hundred miles away, but who were not sufficiently interested in their uncle either to communicate with him or visit him in the eighteen years prior to his death. That the decedent and his wife, in making their wills, were cognizant of those really close to them is in part evidenced by the fact that, among their bequests, they provided for masses for their deceased children.

At most, the suggestion of undue influence in this case has nothing more to support it than a shadowy suspicion; and, that is not enough: see Ash Will, 351 Pa. 317, 324, 41 A.2d 620;Rosenthal's Estate, 339 Pa. 488, 496, 15 A.2d 370. Under the present record, it is no less reasonable to infer that the beneficent disposition of the decedent and his wife toward the proponent was the result of his courtesy and kindliness to them rather than to any over-reaching on his part. In my opinion, therefore, the injection of undue influence is unwarranted.

Mr. Justice DREW joins in this opinion.

Mr. Justice PATTERSON dissents.