Linton's Appeal

1. The fact that a testatrix, a married woman, at and immediately before the signing of her will (which had been previously written), was in a state of intense nervous excitement and apprehension of death, caused by her being about to submit to a dangerous surgical operation, andaggravated by «quarrel with «member of her family, is not sufficient to warrant the court in awarding an issue devisavit vel non, on the allegations of testamentary incapacity, and that the testatrix was undulv influenced by prejudice and passion; especially where, as in this case, the testatrix recovered from the surgical operation and afterwards made no change in her will.' 2. The fact that by said will the testatrix’s confidential legal adviser, who wrote it, was made one of the executors thereof (but not a devisee or legatee thereunder), is not sufficient, under the above stated circumstances, and upon his propounding the will for probate four years after the testatrix’s death, to cast upon him the burden of proving testamen-, tary capacity and the absence of undue influence. 3. Boyd v. Boyd, 16 P. F. Smith 283; Cuthbertson’s Appeal, 1 Out. 163; Wilson’s Appeal, 8 Out. 545, distinguished. . 4. The seventh section of the Act of April 11th 1848, requiring that a will by a married woman shall ‘‘be executed in the presence of two witnesses, neither of whom shall be her husband,” must be read in connection with the general Act of 1883. The word “ executed,” in the Act of 1848, refers to the formality of making a will required by the Act of 1833, with the additional .requisite that it shall be done in the presence of the two witnesses. 5. Hence, all that is necessary to the execution of a valid married woman’s will, is that two witnesses, neither of whom shall be her husband, shall be present when the testamentary paper is signed by her, and either see her sign it, or receive the acknowledgment of the genuineness of her signature thereto. O. It is not necessary that the subscribing witnesses should be able to testify affirmatively that the testatrix knew that the instrument which she signed was her will, or that she formally published or declared it to be her will in any other way than by signing it, and requesting them to attest her signature.

Appeal' from. tbe Orphans’ Court of Armstrong county : Of October and November Term' 1883,-Mo. 126. ■ Appeal by A. F. Linton and P. R. E. Elwina Linton, bis wife, from a decree of said 'court dismissing their appeal from the decree of the register, admitting to probate the will of Jane D. Finlay, deceased, and refusing their petition for an issue devisavit vel non. From the testimony taken by the register, and submitted to the court, the following facts appeared : Mrs. Jane D. Fin-lay died December 80th 1876, leaving an estate worth over $50,000, and leaving to survive her, her husband, John B. .Finlay, an only child, P. R. E. Elwina, then aboiit fourteen years of age (now the wife of A. F. Linton), and her father, James D. Brown. Letters of administration were granted upon her estate, and subsequently in January 1881, in pursuance of a citation issued by the register, the following testamentary paper in question was produced by John Gilpin, and offered for probate: I, JaneB. Finlay, of Kittanning borough, in Armstrong county, state of Pennsylvania, do make and publish this my last will and testament.(hereby revoking any and all prior wills by me at any time heretofore made) in manner following, to wdt: As to all and singular the property, whether real, mixed, or personal, or cboses in action of whatsoever kind and wdiereevor situated, that I may own or be entitled at the time of my death, I do give, devise, and bequéath the same unto Grier O. Orr, and his heirs, to have and to hold the same for the uses'and trusts following, to wit: In trust to receive and collect the rents, issues, profits and proceeds of said property, and from time to time, until my daughter Phoebe R. E. Elwina Finlay, shall attain the age of twenty-one years, to add such rents, issues, profits and proceeds to the principal sum or property; and after my said daughter shall have attained the age of twenty-one years, then in trust to receive and collect the rents, issues, pi’ofits and proceeds of said property and its accumulations, and to pay over to my said daughter the said rents,' issues, profits and proceeds, in semi-annual installments, for her sole and separate use during her natural life, and after her death, then to hold the said property in trust for her children, who may survive her, or their issue; and in case my said daughter shall die without leaving lawful issue living at the time . of her death, then in trust to invest said property and accumulations in such memorial as said trustee or his successor shall determine will best perpetuate the name and memory of my said daughter. Item. I do hereby nominate, constitute and appoint my friends, Grier C. Orr, Esq., and John Gilpin, of the borough aforesaid, the executors of this my last will and testament. Lastly, that I do recommend that the trustee hereinbefore named shall, when he sees proper, and deems it for the interest of my said daughter, sell or dispose of any portions of the property herein devised or bequeathed to him, 'and shall hold the proceeds of such sales in lieu of the portions so sold ; and I do hereby authorize and empower the said Grier O. Orr, 'Esq., to sell and dispose of any and all property that I may own ' or be entitled to at the time of my death, to such person or ' persons, in such manner, and for such prices as he shall deem meet; and I do order and direct that the purchaser or pur- ’ chasers from said Grier C. Orr, Esq., shall be in no wise liable or bound to see to the proper application of the purchase money ! which they may pass to said Grier C. Orr, Esq.; and further, ■upon receipt of the purchase money said Grier G. Orr shall have full power and authority to make, execute, and deliver to the purchasers, deeds and conveyances, in fee simple or otherwise, for any of said property which he may see fit to sell. ' In witness whereof, 1, Jane B. Einley, have to this my last will and testament, written upon two pages of paper, hereto set my hand and seal, this eleventh day of December, A.D., eighteen hundred and seventy-five. • Jane B. Einlay. Signed, sealed, published and declared by Jane B. Einlay, the testratrix, as and for her last will and testament, in the presence of us, who have at her request signed our names as witnesses thereto, in the presence of said testatrix and of each other. James Kino. T. H. Allison. T. M. Allison. Testimony was offered explanatory of the delay in presenting the will for probate. It was shown that the execution of the will took place on December 13th 1875, just previous to the performance of a dangerous surgical operation upon the testatrix, viz., the removal of cancer in the breast. Dr. James King, one of the subscribing witnesses to the will, being dead, his signature was proved. Dr. T. II. Allison, another of the subscribing witnesses, testified, inter alia, as follows : Q. Did you see Jane B. Einlay sign it (the will)? A. blow, listen closely. On the 13th day of December, 1875, in a room of the house in which Mrs. Einlay was living, she pulled out a paper from some place about her person, and said : “ Gentlemen, I want yon, or I wish you, to see me sign this, or witness this,” or some words equivalent to that. I don’t remember the words exactly. She went to a chair over at the side of the room, and sat down, and took this paper that she had brought forth, and she took a pen and ink in her hand, and I saw her making motions as though she were writing. Dr. King went forward first; you saw his writing here. . . . I had been at the house before. When I came in, just before the operation, Mrs. Einlay and her father were quarrelling. It appeared to me that they were jangling something about a deed connected with a house. I had gone from there into the front room. She followed in, and I suppose others. I don’t know who all. About this time she jerked this paper from out of her bosom, and I think said, “I will do it;” said that to lior lather. Q. Just at that point what washer appearance as to excitement or calmness? A. She was very much excited — intensely excited. Q. Was that before you signed this paper that she made use of that language ? A. Ycs, sir. Q. Now, as near as you can, if you can estimate it, how long before you signed that paper ? A. A very short time — a very few minutes. Q. Between the time that she made that reply to her father, and the time that you signed the paper, had there been any change in lier condition as to excitability ? A. I think not. Q. No change in her condition ? A. I think not. Q. How long, Doctor, after yon signed that paper- did you perform the operation ? A. Just as soon as we got everything ready. Q. Within an hour ? A. I think so. . . . Q. What was her physical and mental condition as to excitement? A. Her physical condition was bad. Her mental condition was very much excited, both before and at the time of the operation. Q. At the time you were asked to and did sign the paper, Doctor, did any person read any portion of that paper in your presence or hearing? A. They did not. Q. Was it named in your presence or hearing as a will ? A. It was not. Q. Did Mrs. Jane B. Finlay at any time ask you to sign it as her will ? A. She asked us as I have told you; her language was, “Gentlemen, I want you to witness this,” or words equivalent to that anyway. Q. The point in my question is, did she ask you to witness it as a will ? ■ ' A. That was the full amount of her language. Q. A word of the will was not read ? A. No, sir ; nothing said about a will. . . . Q. At the time yon signed that paper was Mrs. Jane E. Einlay of sound mind, memory, and understanding? A. What do you mean by the words sound mind ? Q. Well, the legal construction is : that is, that she was of sufficient soundness of mind, memory, and understanding to make a valid will. You understand the meaning of sound mind, memory, and understanding just as well as I do, and a little better. You take your own view on that? A. To answer that, yes or no, I don’t like that. What is it you want of me ? Q. Sound applies to the words mind, memory, and understanding. A. I don’t like that kind of a question, the wa_y that you put it in. I don’t like it. I don’t pretend to intimate at all that Mrs. Finlay was clear insane. She was very much excited, and her mind had been wrought up by her diseased condition to a very great extent, and the trouble with her father had got her into a still greater state of excitement that day. She had very great fears in regard to the disease; she had very great fears in regard to being placed under an anaesthetic; and she had great fears in regard to the operation, from the fact of her mother having died under the same circumstances ; these were her fears. ... As I said before, I saw Mrs. Finlay sit down and take a pen, and went through the motions, I presume, of writing. Dr. King went forward, and, I presume, I suplióse signed this ; then, I presume, I went forward and signed, as it is my name here. Q. Did she specifically acknowledge in your presence, Doctor, either of those signatures ? A. She said nothing about them. Q. When she had the pen and ink and made this writing, was it on a chair or table ? A. She was writing on her knee. ... Q. From the 6th of December, 1875, to the 13 of December, 1875, Mrs. Finlay discussed with you in a reasonable, sensible manner, the proposed operation and the probabilities of it, did she ? A. Well, some of it was sensible and some of it was not extremely sensible. Q. Did she seem to appreciate the nature of the disease ? A. Yes, she was appreciating it wonderfully well. Dr. T. M. Allison, the other subscribing witness, testified, inter alia, as follows : Q. After the communication of the result of your consultation there, what was her condition as to excitement and mental condition. A. She was very much excited. Q. State now whether she asked you to sign any paper and just as near as you can what she said about it. A. She produced a paper of some kind, I don’t know what, from about her person somewhere, from the bosom of her dress and asked us all to come. She said, u Gentlemen, 1 want you to witness my signing this paper,” or witness her signature, I believe was the words. Q. Did she sign in your presence? A. Well, I suppose she did. She took a pen in her hand. She had the instrument on her knee, on a writing stand or portfolio, or something of that kind ; took a pen in her hand and run over it. I suppose she was writing her name; I was not very clear. Q. You could not see the actual signature ? A. No, sir, I did not see her make the letters to form the name. Q. You saw her make motions as though she was writing. , A. Yes, sir. ... Q. In medical parlance, what would you call her condition at the time ? Was it in the nature of hysteria, or was it something else ? A. It would be pretty hard to give it a name. I have spoken of her being in a great state of nervous excitement; wonderfully wrought up ; acted somewhat strangely ; talked a great deal, and at random sometimes. It would bear as closely on hysteria as anything I could name, part of it. ’ ¡ R. J. Earns testified, under a commission to Socorro, New Mexico, as follows:— . 1 Fourth. What do you know about Mrs. Finlay, having a form of will written about the time of, and before said surgical operation was performed ? Do you know whom they employed to write said form of will and if so state who it was ? A. A few days prior to the said surgical operation having been performed, while she was in a very poor state of health, she directed me to go and ask Mr. John Gilpin, a practicing attorney of Eittanning, to call upon her. I gave him the message, that is, I gave Mr. John Gilpin the message, and he called upon her, and I understood it was for that purpose, of drawing up a form of will for her. Fifth. What did she say of the form of will that was prepared for her when she received it? What objections, if any, did she make, and what reply did the attorney who wrote the will make to such objections ? A. One or two days after Mr. Gilpin had called upon her as aforesaid, and before the surgical operation had been performed, I took up a paper from Mrs. Finlay’s table purporting to be a will, written in the handwriting of said Mr. Gilpin, but without any signature whatever. Mrs. Finlay told me that was the paper Mr. Gilpin had prepared for her to sign, and added, “ I am so far gone I really don’t know what is in it. I have left it all to Mr. Gilpin, believing he will act honestly in the matter,” or words to that effect, which words she repeated several times in my hearing, and even after said surgical operation was performed, after she began to get better, said that she really did not know what was in said will. Mrs. Mary Henry tessified in answer to interrogatories under a commission to Port Huron, Michigan, as follows:— 4. As to a paper purporting to be a will written by John Gilpin, Esq., for the said Mrs. Jane B. Finlay, I did know of said paper. Mrs. Finlay said to me when I first saw her after said operation, “ Why did you not come sooner and I would have given you something in my will?” I said, “ Is it too late now?” She said, “Yes; I have given everything away.” Knew of no changes she wanted made. fí. Was with Mrs. Finlay some six or seven months after the operation. All she said about her will was that she had made' it at the time or just before the operation was performed. This she told me when I first saw her after the operation, and she never spoke of it again. E. J. Karns, Mrs. Henry, and Sallie E. Brown testified as to angry disputes and quarrels between Mrs. Finlay and her father prior to and about the date of the alleged execution of the will. The register revoked the letters of administration, and admitted the will to probate, from which decision A. F. Linton and wife appealed to the Orphans’ Court, and also presented a petition for a precept for an issue to the Common Pleas, alleging want of testamentary capacity, undue influence, and that the proofs before the register were not sufficient impróbate. The court, in an opinion by Breton, J., refused the petition for an issue and dismissed the appeal; whereupon said A. F. Linton and P. E. E. Elwina, his wife, took this appeal, assigning for error the said action of the court.