According to the majority opinion it would appear that the question whether a will has been obtained by undue influence and whether there was testamentary capacity is a matter of general or public concern — something like the prosecution of a crime — and therefore any person whosoever, or even the register of wills himself, may demand and obtain such an issue. No such view, *Page 65 to my knowledge, has ever heretofore been taken. Even a person having a sentimental, but no pecuniary interest in an estate, has no standing to contest a will; only the heirs or next of kin of a testator, they being the sole persons who would suffer from the probate of a void or improperly induced will, can raise a question as to its validity.
Who is the next of kin of Mrs. Brindle? Not her cousins who have instigated these proceedings, but her brother, Frank Fox, and, if he were in the possession of his normal mental faculties, he and he alone — not his next of kin nor any one else — could attack the integrity of her will.1 And whether or not he desired to make such a contest would have been a matter purely for his own decision. Even if he thought that his sister had been subjected to the importunities of Mr. Steffey (incidentally, there is not the slightest suggestion in the record that Mrs. Zook had anything to do with the making of the will or even knew that she was a legatee thereunder), there would not have been any duty upon him, as the majority opinion would seem to imply, to demand the granting of an issue to determine the validity of the will; he might well have felt that, because the will gave him not only the entire income but also the right to consume any and all of the principal of the estate if necessary for his proper maintenance and support, he would not care to contest it by attempting to prove that his sister was mentally unsound or that she was imposed upon by their mutual friends; indeed he might himself have preferred that Mr. Steffey and Mrs. Zook should obtain what was left over when he died rather than that in the event of his intestacy such leavings should go to cousins in whom he had apparently no interest whatever.
But Frank Fox being in fact mentally incompetent who is now to speak for him? The law is so clear on *Page 66 that question that there can be no room for doubt. His guardian may not challenge the probate of the will except by obtaining the court's approval of such action. And in such a proceeding the incompetent is regarded by the court as its ward,2 and the sole issue before it is to determine, not anypublic rights, for obviously there are none, but whether it isto the best interests of the ward to try to have the will setaside, — in other words, to resolve for him what he himself would have been called upon to decide if he were mentally able to do so.
The question, then, and the only one in these proceedings, is whether, under all the existing facts and circumstances, the court should grant permission to the guardian of Frank Fox to petition for an issue d. v. n. Or, stating it in the clear language of Judge UTTLEY himself: "The question now before this court . . . is not whether an issue devisavit vel non should be granted, nor whether, if granted, the trial thereof would probably result in a sustainable verdict against the will. The sole question before us is, would such a contest . . . whether successful or unsuccessful, be for the welfare and best interests of Frank Fox, the incompetent." In that connection I am wholly unable to understand what is meant in the majority opinion by the statement that "There is no doubt of the power of the common pleas, in a proper case, to determine what appears best for the ward: . . . But before that question is reached on this record, a fundamental and more important question must be decided," — namely, whether or not the will should be upheld. If the latter question is first to be decided, of what possible use could it then be to determine whether or not it was to the best interests of the ward to raise that question? The majority opinion does not undertake to discuss, much less decide, what are the best interests of the ward in regard to the matter, which, according *Page 67 to every precedent and legal authority, is the only issue to be decided in the present proceedings.
The majority opinion states that "The evidence on the appeal from the probate clearly shows a substantial dispute upon matter of fact. The statute provides what shall be done in such circumstances," namely, that "Whenever a dispute upon a matter of fact arises before any orphans' court, on appeal from any register of wills . . . the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof. . . ." The majority opinion would seem to imply that this statute compels the granting of an issue in this case, whereas there must first be, of course, a party who desires to have an issue granted and is qualified or authorized to request it, and it is then, and then only, that the statute provides for theprocedure governing the issuance of a precept.
While, as previously stated, we are not, in my opinion, concerned in any way in the present proceedings with the merit or lack of merit of the attack upon Mrs. Brindle's will, I cannot refrain, in passing, from pointing out that the majority opinion, while cumulating all the testimony in support of that attack, omits entirely to mention any of the evidence tending to establish the integrity of the will, — for example, that none of these disappointed cousins lives in Belleville where the testatrix lived all her life, some of them residing as far away as Kansas; that testatrix not only had no intimate relations with them, but, on the contrary, repeatedly and emphatically declared that "they never came to help me or do anything for me" and "they would never get a damn cent"; that on the other hand, the two persons whom she made her residuary legatees lived their whole lives with her in her own town; that Mr. Steffey had been intimately acquainted with her and her husband for 32 years; that her family and the family of Mrs. Zook had been intimate friends all her life, to such an extent indeed that, after the death of Mrs. Zook's mother, *Page 68 Mrs. Zook being then but eight or ten years old, Mrs. Brindle became "like a second mother to her." I know of no law nor of any rule governing ordinary human relations which says that a person must bequeath her estate to distant relatives rather than to intimate lifetime friends and associates. In the present instance Mrs. Brindle took care, to the fullest extent and in the most sensible and practical way, of every possible need and interest of the person who was nearest and dearest to her, namely, her brother, and it was only after she had thus provided for him that she gave whatever might remain after his death to her two closest friends in the community in which she lived. I cannot see anything in such a will that is not wholly normal and natural, or that would be calculated to excite suspicion on the part of any fair-minded and disinterested person.
But let us turn now to the decisions in our own jurisdiction bearing upon the question here involved. The majority opinion chooses to ignore them because they refer to the election of a mentally incompetent husband and wife to take against the will of his or her spouse, and in such cases the integrity of the will itself is not under suspicion. This, of course, may be a distinction, but it is a distinction without a difference, for the two situations, from a legal standpoint, are not only analogous but identical. In both of them we have an incompetent person called upon to make a choice of conduct in regard to the repudiation of a will or part of it; in both of them that choice is to be made solely on the basis of expediency or personal welfare of the incompetent; in both of them, since the mental incompetent is unable to determine what is best for himself and he is the object of the court's solicitude and protection, the court, acting on his behalf, must make the election for him. Indeed, if any different rule whatever were to be established between the two cases there should be required greater caution on the part of the court in authorizing the guardian of a mentally incompetent heir to *Page 69 attack the probate of a will than in authorizing the guardian of a mentally incompetent widow to elect to take against her husband's will, for the former case is bound to involve bitter, protracted, costly and, at best, doubtful litigation, whereas the latter calls merely for the exercise of an established, uncontestable legal right.
The authorities are clear as to the tests to be applied in the determination of the question as to whether the guardian of a mental incompetent should be authorized by the court to attack the integrity of a will.
In Kennedy v. Johnston, 65 Pa. 451, 455, the court said that "The choice thus presented by the law is one for a judicious consideration — one of judgment to be exercised upon a view of the circumstances." It was further stated that the right is personal, or, because of incompetency due to unsoundness of mind, to be exercised by the court which has the care of the incompetent's estate, and that (p. 456) the court would grant leave to elect to take against the will "only on due consideration of the advantages and disadvantages of the choice."
In Re Bringhurst. Fidelity Trust Company's Appeal, 250 Pa. 9,95 A. 320, it was held that, since the demented person's share of the testator's estate under his will was amply sufficient properly to provide for her comfortable maintenance, and since the first consideration was the incompetent's personal welfare, leave would not be granted to take against the will even though such election would result in her obtaining a larger share; the fact that if such election were allowed certain adopted grandchildren of the widow would profit by inheriting from the incompetent was declared to be a matter which should not be taken into consideration at all.
In Brooke's Estate, 279 Pa. 341, 123 A. 786, it was similarly held that where the income of the incompetent, in this case a husband, was ample to supply all of his needs without considering the additional benefits derived from his wife's estate, his guardian would not be permitted *Page 70 to elect to take against her will, it being again emphasized that other persons who would indirectly benefit from such election were not to be considered in determining what was for the best interests of the incompetent.
In Stockton's Estate, 311 Pa. 189, 166 A. 648, the same rule was applied and the same conclusion reached. The Court said that the question was one within the court's discretion, to be exercised judicially upon consideration of all the circumstances, and with a view primarily to the interests and welfare of the incompetent husband himself.
In German's Case, 318 Pa. 200, 178 A. 38, it was stated once again that the question was within the discretion of the court below as to what was best for the incompetent's welfare and interests. In this particular instance the court authorized an election against the will.
In the leading case of Harris Estate, 351 Pa. 368, 382,41 A.2d 715, 722, this Court, after repeating the now time-worn rule that the question for decision was whether there was an abuse of judicial discretion in the refusal of the court below to direct the guardian of an incompetent to reject the provision made for her under a will, pointed out (pp. 383, 384, A., p. 722) that "well defined principles have been laid down as guides for the exercise of its discretionary power." We said that "It is common knowledge that not every widow disregards her husband's last wishes for the disposition of his property merely because she would obtain a greater quantum of his estate by so doing; sentiment enters into such situations quite as much as considerations of material advantage, and, if she is reasonably provided for in her husband's will or her wants are otherwise adequately supplied, it does not follow, just because such provision may not be as much as she might elect, that she would file an election to take against the will. Therefore,when the court acts on behalf of a mentally defective widow *Page 71 it should not be controlled by mere mathematical calculationsof the financial results that would accrue to her one way orthe other. Another principle frequently stated is that, while the court should base its decision on the consideration of all the circumstances . . ., the welfare of the widow is the mainobject of such consideration, and therefore the interests ofher creditors or heirs who might either benefit or suffer bythe choice to be made are almost wholly immaterial in thedetermination of the question." And we quoted with approval (p. 385, A., p. 723) the statement of the court below that "Thecourt cannot in this situation properly take that course whichwould create for the incompetent a large estate of which shecould by no possibility have the present benefit in herlifetime, but which ultimately would go to her next of kinsometime in the distant future. The primary consideration isthe current welfare of the incompetent herself, and the court'sdiscretion in the matter must be so exercised as to serve thatpurpose." In the concurring opinion filed by Chief Justice MAXEY (p. 390, A., p. 725) it was said: "That the widow'skindred would ultimately be enriched by permitting this widow's guardian to take against the husband's will was a consideration to which the court which had the guardian's request before it properly refused to give any weight. With their interest thecourt had no concern."
All the principles thus declared by our own Court are similarly proclaimed, and like decisions made, in numerous cases in other jurisdictions; as examples: Van Steenwyck v.Washburn, 59 Wis. 483, 17 N.W. 289; State ex rel. Josephine L.Percy v. T. J. Hunt, 88 Minn. 404, 93 N.W. 314; and Estate ofMelissa Connor, 254 Mo. 65, 162 N.W. 252, 49 L.R.A. (n. s.) 1108.
The upshot, then, of these universally established rules is this, — that where, because of mental incompetency, a person is unable to determine whether or not to attack a will in whole or in part or whether or not *Page 72 to elect to take against its provisions, the choice must be made by the court acting on his behalf; that in its decision of the question only the immediate interests of the incompetent, as ward of the court, are to be considered; that if there is already assured to him an income or principal sufficient for all his possible needs the question of further pecuniary advantage is one of no moment whatever; that no attention is to be paid to the interests of those who, upon his death, may have eventual rights of succession; that the court below is invested with discretion, and that any conclusion reached by it after consideration of all these proper factors is not to be set aside on appeal unless such discretion has been obviously abused.
Applying these principles to the present case it does not seem to me that any conclusion is tenable other than that it would be extremely disadvantageous to Frank Fox for his guardian to attack his sister's will. Even if such attempt were successful, he would, from every practical standpoint, be worse off than in taking what is given him under the will. Not only would the necessary expenses and legal fees greatly diminish the ultimate amount of the estate available for his use, but the transfer inheritance tax would be approximately $11,000 more on his share. On the other hand, he enjoys, under the will, the complete income of the estate and as much of the principal, if the income prove insufficient, as is necessary for his comfort and maintenance. What more could a person in his circumstances want or need? Why should a court, seeking only his best interests, plunge him into litigation, at best of doubtful outcome, merely in order to obtain for him additional property which, under no possible circumstances, could be of any actual benefit to him? He is 70 years of age, unmarried and without issue; he has been hopelessly deranged for upwards of 20 years; he is under the constant care of someone who must feed him and attend to his physical requirements; all the parties agree of record that he is *Page 73 hopelessly and permanently demented and that his condition will tend to become progressively worse until his death. If his guardian were to be authorized to attack the will it might even be that during the long ensuing litigation the periodic payments of income so vital to him might be threatened, and it is at least doubtful whether he himself would survive the course of the contest through the trial and appellate courts. Under all such circumstances no court, if really acting for the best interests of its incompetent ward, should subject this old, helpless man to what, so far as he personally is concerned, would be foolhardy litigation.
Who are the persons who are attempting to benefit, and who alone could benefit, by such a contest? They are the cousins who are using this mentally deranged incompetent as a mere robot to pull their own chestnuts out of the testamentary fire. They themselves have no legal standing whatever to be the moving parties3 and they are exploiting him solely for that purpose notwithstanding the bland statement in their brief that they "are upon the record only in protection of the interests of the incompetent". The fact is that, by its present decision, this Court is bypassing and disregarding the real interests and welfare of Frank Fox, its ward, and considering only these others who, under all the authorities, should not be the objects of its concern at all.
Because of the views I have thus expressed, and because of my understanding of the legal principles applicable to this situation, I must earnestly dissent from the reversal of the orders which the court below has entered.
MR. CHIEF JUSTICE MAXEY concurs in this dissenting opinion.
1 The majority opinion refers in this case to the "contestants". Who are the "contestants"? As stated above, only Frank Fox, or his guardian, can contest Mrs. Brindle's will.
2 At common law the insane were the wards of chancery, and the Chancellor exercised jurisdiction over their persons and estates.
3 Their interest, which may prove wholly illusory, is that, if Mrs. Brindle's will should be set aside, and if her mentally incompetent brother should not be able at any time hereafter to make a will, and if there is no such will already in existence made by him prior to his becoming mentally incompetent and bequeathing his estate to other persons, they might ultimately come into possession of any portion of the property left unconsumed at his death. *Page 74