Masseth v. Masseth

Citations

• 213 Pa. 434
• 62 A. 1076
• 1906 Pa. LEXIS 501

Syllabus

<p>Wills — Devisavit vel non — Testamentary capacity — Undue influence — Evidence.</p> <p>On a petition for an issue devisavit vel non, it appeared that the decedent made a will distributing his estate equally among nephews and nieces. Subsequently he left his home, went to a sanitarium, was there operated upon, and died three weeks after the operation. On the day before his death he was asked whether he desired to make a will, he replied that he did, and a scrivener was sent for and prepared the paper in controversy. This paper was executed by the decedent the following evening, his physician and the scrivener being the subscribing witnesses. Decedent died the following day. A nephew was with the testator at the sanitarium continuously from the time of the surgical operation until his death. To this nephew and his sister, decedent conveyed certain real estate in New York a few days before his death. By the will in controversy he gave small money legacies to the children of a brother, and divided all the residue of his property among his other nephews and nieces. The children of the brother were the petitioners for the issue. The attending physician based his opinion of the incapacity of the decedent, not upon anything he saw with the eye of the physician, nor upon anything he observed in the conduct or conversation of the patient, but solely and exclusively on the fact that the disposition of the property directed in the paper executed did not conform with the wishes expressed by the deceased to him on several occasions, and as recently as the day before. The testimony of the scrivener showed great bodily weakness on the part of the decedent, but nothing to justify an opinion of mental weakness. The scrivener testified that the decedent verbally instructed him to distribute the balance of the estate among all the nephews and nieces in equal shares, at the same time giving him a written memorandum of instruction. The memorandum did not conform to the oral instructio