Scott's Estate , 147 Pa. 89 ( 1892 )

Opinion by

Mb. Chibe Justice Paxson,

This was an appeal from the decree of the orphans’ court of Allegheny county, vacating the probate of the will of John Scott, deceased. The alleged will is so brief that I give it entire:

“ Pittsburgh, March 16, 1889.

“Hon. John Dalzell, attorney:

“Dear sir: Will you kindly at your earliest convenience cause a will to be made for me:

“First. Providing for the payment of all my just debts.

“ Second. Providing for the appointment of John F. Scott and William Stewart as executors, without bonds.

“ Third. Providing for the following division of the proceeds ■of the real and personal property between my children as follows:

To John F. Scott ..... $75,000

Lucy Painter ...... 45,000

Mary O. Burns ..... 45,000

Robert R. Scott..... 45,000

David S. Scott..... 45,000

Ella C. Scott...... 45,000

Herman Gr. Scott .... 45,000

William W. Scott.....0,001

Charles Y. Scott ..... 0,001

Maurice Scott ...... 0,001

Also to my grandchild John Sample Scott 5,000

$350,003

“Any excess or deficiency from the gross sum of $350,003 which the estate may yield on its final settlement, to be prorated between the several heirs in the proportion which the shares designated for them bears to the aggregate of $350,003. In this connection, I desire to state that, as Mrs. Olivia R. Scott has already, as you are aware, been quite amply provided for out of my estate, it is my desire that she should not in any way participate with my children in the estate now to be divided and referred to in the foregoing statement.

“Witness: Yours truly,

“ William Stewart. John Soott.”

The body of this paper is in the handwriting of Mr. Stewart, the subscribing witness. The signature of Mr. Scott was proved by three witnesses. There is no question as to the genuineness of the paper. That it is not in form a will may be conceded; yet if the request to Mr. Dalzell to prepare a will had been omitted, it might have passed as a testamentary paper. It contains every requisite of a valid will. It provides (a) for the payment of his debts; (5) names his executors ; (c) divides his entire estate among his children ; and (d) explains why he makes no provision for his wife.

The testimony shows that the paper was prepared by William Stewart at Mr. Scott’s request during his last sickness; that, when Mr. Stewart brought it out to him, Mr. Scott got out of bed, signed it, and handed it back to Mr. Stewart, and told him to put it in his (Stewart’s) box in the Fidelity Title & Trust Company, that it was a good will, “ as good a one as I want.” In the language of the witness Stewart: “He said that that will would be probated, — this document would be probated; he said it was his will.” The evidence of this witness is clear and precise that Mr. Scott regarded and declared this paper to be his last will and testament.

The other witness was John F. Scott, a son of the testator. He testified that his father had spoken to him about making a will a few days before it was signed, and had directed him to send Mr. Stewart out to his residence for that purpose. Mr. Stewart came, and had an interview with Mr. Scott; the same day he requested the witness, who had the sole charge of his father’s affairs, to make a statement of the amount of his estate. This statement was furnished, showing that the estate would realize about three hundred and fifty thousand dollars after paying all expenses. What next occurred is best told in the language of the witness: “He (Stewart) asked for pen, paper, and ink, — that was in 61 Fourth Avenue, — and he went over to the far end of the room, took the young man’s desk, and sat there and figured and wrote. He said he was going out at noon, and for me to come out at the usual time in the afternoon. He went out at noon, and I started out about four o’clock, went up to father’s, and went in the room, and asked him how he felt. ‘ Oh,’ he says, ‘ I’m better.’ He says: ‘ I have got up and walked over to the bureau, and signed my will.’ I says : ‘ My, father, you ought not to have done that; the doctor told you to keep perfectly quiet. I think you ought to have signed that in bed.’ ‘ Oh, no,’ he says, ‘ I am much better; I am all right.’ Q. Who was in the room at the time ? A. Mr. Stewart. Q. You and Mr. Stewart and your father ? A. That was all. Nothing more was then said about the will, and we had supper. After supper we went up to his room, and was sitting there smoking; father was smoking, too, and Mr. Stewart and myself, and he says to him, he says: ‘ Now, Billy, that is as good a will as can be drawn ; if anything happens to me, have that probated.’ He says : ‘ I was up in the register’s office a short time ago in the Knox-Slataper will case, and was waiting on Mr. Hampton there, and Mr. Hampton explained to me about the case, and I called his attention to a gentleman who had written a letter to his attorney some forty years ago, just directing a will to be drawn, and that will, that letter, was made good; and Mr. Hampton went to the records and looked back, and was very much surprised at my memory going back forty years.’ ” The witness further stated that he never saw the paper in question until after his father’s death and burial.

Both of the witnesses refer to the testator’s familiarity with the Knox-Slataper will case, — reported in 181 Pa. 220 ; and this was probably the key-note to testator’s belief that the letter to Mr. Dalzell, expressing his wishes in regard to his estate, was a will in fact, although not in form.

It was contended by the appellees (a) that parol evidence was not competent to show that the testator declared this paper to be his will; and (J) that, even if such evidence were admissible, the paper was not sufficiently proved. We cannot sustain the first proposition, nor do we think any of the authorities cited by the appellees apply to the facts of this case. It must not be overlooked that we are dealing with a genuine paper, signed by the testator, which, if not actually a will upon its face, is dangerously near one. Treating a will as the legal declarations of a man’s intentions which he wills to be performed after his death, we have here the testator’s intentions fully expressed. The paper itself being proved by three witnesses, we see no reason why parol evidence should not be received that he declared it to be his last will and testament.

The remaining question is more important. Was the paper sufficiently proved? Not its execution, for that, as before observed, was proved by three witnesses, but the fact that the testator intended it as his will, and declared it to be such. The law requires a will to be proved by two witnesses. We have here two witnesses as to the fact of publication as a will, but it is alleged that one of them, John F. Scott, falls short of being a full witness. This arises from the fact that he did not actually see and identify the paper on the evening of its execution.

If he were an ordinary witness, called in casually, with no knowledge of the circumstances, there would be more force in this contention. But the witness Scott was familiar with the entire transaction. He knew his father was making a will. He had been consulted about it, and furnished the information upon which it was made. He followed Mr. Stewart out to his father’s house the same afternoon, and arrived there shortly after it was signed. He there found his father and Mr. Stewart together, and was there informed by his father that he had made his will, and had given it to Mr. Stewart to keep. Moreover, the conversation plainly showed that the will was not in the usual form, but in the shape of a letter to his attorney. It is not pretended that there was any other letter, any other paper, or any other will, executed on that day by Mr. Scott, and handed to Mr. Stewart. We think the witness Scott sufficently identified the paper, and that it was proved by two competent witnesses, “ each of whom make complete proof in itself, so that, if the act of assembly were out of the question, the case would be well made out by the testimony of either.”

Carson’s Ap., 59 Pa. 498, gives color to the position that circumstances may supply the want of one witness, when they go directly to the immediate act of disposition. In that case the will had been signed by a mark, and one of the witnesses failed to positively identify the mark as that of testator, and the court held that there were circumstances which justified the holding of the testimony of the witness to be sufficient. It is true, Justices Shabswood and Agnew held there was the full proof of two witnesses, and concurred in the judgment on that ground. If we hold that under no circumstances can a paper be proved without its actual production and inspection, we might be driven to the conclusion that the testimony of Scott was not sufficent to identify the paper, and that he was not a full witness. But he identified this paper sufficently for any of the practical business of life, and we think it a substantial compliance with the act of assembly. This view renders a discussion of the numerous cases cited on either side unnecessary. The case is sui generis, and must be decided upon its own facts and the act of assembly.

The decree is reversed, at the costs of the appellees, and it is ordered that thfe letters testamentary heretofore granted by the register of wills upon the estate of John Scott be reinstated.

C.