I dissent from the majority of the opinion in this case. The issue raised by a petition to set aside the order of the Register of Wills and to revoke the letters of administration C.T.A. issued to M. R. Lare, Jr., was thoroughly litigated before Judge MILHOLLAND, of the Orphans' Court, in a protracted hearing which lasted, with brief recesses, from July 9th to July 23, 1943. The record before us comprises 3,290 pages. It was the conclusion of Judge MILHOLLAND that the will was a forgery and that no jury verdict sustaining it could be permitted to stand. Exceptions were filed to this adjudication, and these were argued before the court en banc, consisting of Judges TRIMBLE, PATTERSON and MILHOLLAND. The court en banc adopted Judge MILHOLLAND'S findings and conclusions that the alleged will was a forgery. I agree with Judge MILHOLLAND and the court en banc that the will is a forgery and that no jury finding in its favor could be sustained. There is no reasonable expectation that any further light would be thrown upon this case by a jury trial. The record of such a trial would presumably be about the same as the record now before us. On this record a verdict sustaining this alleged will would be most unlikely and to sustain such a verdict would be shocking to any judicial conscience.
All agree that the law is settled that the Orphans' Court has the right to decide in a will case whether or not an issue to determine the validity of an alleged will should be awarded. The constitutional right to a trial by jury has no relation whatever to the power of the Orphans' Court in such cases, for the Orphans' Court acts as a court of chancery and "in the exercise of its limited jurisdiction . . . it applies the rules and principles of equity": Willard's Appeal, 65 Pa. 265, 267-8. *Page 339
It is likewise settled that if there is a substantial dispute upon a material matter of fact, the Orphans' Court must award an issue; if there is no such substantial dispute the Orphans' Court may properly refuse to award an issue. Mr. Justice HORACE STERN in DeLaurentiis's Estate, 323 Pa. 70, 186 A. 359, after reviewing our cases aptly states: ". . . the principle is laid down in unmistakable though variously expressed terms, that a party is not entitled to have an issue submitted to a jury merely because he produces enough evidence to make out technically a prima facie case."
" 'The true rule is that such a case should not go to the jury at all when the court in the exercise of a sound legal discretion would not sustain the verdict': Eddey's App.,109 Pa. 406, 419.
" 'If the testimony is such that after a fair and impartial trial, resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of the Act, has arisen': Appeal of Knauss, 114 Pa. 10, 20. . . .
" 'As the rule is usually stated, an issue should be denied in a case where, after a careful consideration and review of all the evidence, the trial judge would feel compelled to set aside a verdict, if found for the petitioner, as impossible and improper on the strength of the evidence, . . . To sustain the grant of an issue, the evidence must be such as would permit a verdict for either party to stand. Otherwise, there is no substantial dispute upon a material question of fact':Hile's Est., 310 Pa. 541, 544."
I have carefully read the record in the case, and I fail to see how any court could sustain a verdict in favor of this will (written on the face of a bank check) should a jury be misled into returning such a verdict. Even if we concede merely for the sake of argument that this *Page 340 proponent has made out "technically a prima facie case" that is not enough, under our decisions, (as Justice STERN pointed out) to warrant submitting an issue to a jury.
In human affairs we accept as true those things which are highly probable and as untrue those things which are highlyimprobable. Thayer in his "Treatise on Evidence," says, p. 272: "What is called the 'legal mind' is still the human mind, and it must reason according to the laws of its constitution." That Mrs. Lare ever wrote the will her husband presented for probate is so highly improbable that only an immature and gullible mind would believe it. The following are some of the circumstances which convince me that this will is a fraud:
1. While, of course, a will can be written on a bank check form, it is so unusual for anyone to do so when ample paper is available and there is no necessity to write a will on a bank check form, that when an alleged will so written is offered for probate it naturally excites suspicion as to its genuineness. Before it is accepted as a will there ought to be some plausible explanation as to why the alleged testator chose to write a will on such a small piece of paper, and on the side of it which contained printed matter instead of the side of it which was blank. The bank check form allegedly used for the writing of this alleged will was 6-3/8 inches in length and 2-5/8 inches in width. It contained about one inch from the top the printed words "Forbes National Bank." Near its right end and about an inch from the bottom it contained the word "Dollars," and about one inch above that word and a little to the left of it is a dollar ($) sign, and near the top are the words "Pittsburgh, Pa. No." and on the left side are the words: "Pay to the order of." Mrs. Lare, the alleged maker of this alleged will had had business experience and had been a "skillful typist." From 1919 to 1929 she had been secretary to the General Sales Manager of a cement company. A person of ordinary *Page 341 business sense and experience would not be likely to use ablank check as a paper on which to write her will disposing of property of the value of $80,000, and if because of some unusual circumstance she did use a blank check for that purpose she would naturally use not the already partially occupied face of the check but the totally unoccupied back of it. There is probably not a single instance anywhere of any person using theface of a "blank" check containing the usual printed matter, on which to typewrite a will. Mrs. Lare, who had been a trained secretary, doubtless had plenty of paper available for the writing of a will in the usual form and would not have resorted to her check book for paper on which to express her testamentary intentions.
2. It was shown that Mrs. Lare had the habit of signing checks in blank. This fact was inferentially admitted by Lare who testified that he once told his wife he "would not give or take a blank check from Jesus Christ; it is too dangerous." This alleged will was evidently written on a blank check form on which Mrs. Lare had carefully written her name on the signature line, intending that the form should later be filled out as a check. The blank on which this "will" was written was taken from the check book between May 13th and 16th, 1940. The will bears a date twenty months later, i.e., January 21, 1942. Each check book of 201 checks which Mrs. Lare used, lasted about one year. She did not use a new book until all the checks in the preceding book were used. It is unthinkable that anyone writing a will on January 21, 1942, on a blank check, would use one from a book that had been depleted of all its blanks nearly two years previously? The obvious inference is that Lare had obtained possession of a blank but signed check of his wife's in 1940 and had carefully retained it for the very fraudulent purpose for which he used it twenty months later. The paper on which this alleged will was written shows unmistakable signs of having been kept for a long period (See "#12," post). *Page 342
3. It is highly improbable that the decedent who inherited all her estate from her first husband who died in 1935, would leave all her estate to her second husband whom she married thirty-eight months before the alleged will was executed, to the exclusion of her two surviving brothers and one sister. One brother was in 1942 about 35 years of age, and the other about 52 years of age, and the sister was about 40 years of age. Mrs. Lare's relations with them were amicable. She had talked to her attorney, J. Kirk Renner, and expressed her desire to make a will in which provisions would be made for her brothers and her sister and their children. Mrs. Lare's attorney testified that in one of the last of Mrs. Lare's many telephone conversations with him, she spoke of a plan to visit his office in Connellsville, as soon as she should recover from her illness, to carry out a plan to make a will providing for "Katherine and the boys," meaning the three contestants who are appellees here, "and their children." Lare himself admitted that Mrs. Lare "thought warmly of her family." There was evidence that she expressed a belief that Mr. Lare "had married her for her money." The court found that "old, established friend of the decedent, who knew her well enough to learn from her that her life with Mr. Lare was a most unhappy one, [testified that] one of the principal causes of her unhappiness was that she was unwilling to forget her regard for contestants or to abandon her practice to make material provisions for them in the face of Mr. Lare's jealous and bitter opposition."
4. Attorney Renner had been the executor of the will of Mrs. Lare's first husband, who left all his estate to her. Mr. Renner continued to do all her legal work until her death. She trusted him so implicitly that she sent him "checks signed in blank to be used after he filled them in, for the correct amount, to the proper payees." She wrote him and told him about her anxiety to make a will "to take care of her sister and brothers." During the last three or four months of her life" she talked to *Page 343 Attorney Renner on the telephone. Yet she never mentioned tothis trusted attorney and personal adviser anything about the will which was offered for probate in this case and which bears the date, January 21, 1942. In Young Estate, 347 Pa. 457,32 A.2d 901, one of the five circumstances we listed as tending to prove that the will challenged in that case was a forgery was the fact that at no time after the date of the alleged will (which was adjudicated to be a fraud) did the person whose name was attached to the will ever discuss that will with the attorney whom she consulted on her personal business affairs. We there said (p. 462): "The silence of this woman in the presence of the man whom she had consulted professionally during a dozen years, about a will these proponents declare she had executed six weeks previously and in which this man was named one of the executors, would generate even in the mind of the gullible a formidable doubt as to this declaration's veraciousness." If that was true in the Young case, it is equally true in this case.
5. A most significant circumstance against the genuineness of Lare's claim that this blank check "will" is his wife's will is the fact that after his wife's attorney, J. Kirk Renner, had told him "If I were in your position I would not attempt to probate that as Gertrude's will," that the "will" was a forgery and to "tear it up," he requested Mr. Renner to become his attorney and secure for him the probate of the paper as a will. Lare admitted in his testimony that Attorney Renner said to him: "Tear it up! I would not probate that will." Lare then became "very excited, jumped from his chair, began pacing back and forth" and said: "You don't think I would do anything like that, do you? [evidently meaning to forge a will]. I put men in the penitentiary for less than that."1 After this interview with Attorney Renner, Lare waited two or three weeks, i.e., until July *Page 344 31st, before offering the "will for probate." When asked why he held the will so long after this interview, Lare replied: "I wanted him [Renner] to state in writing to me his position."
It is unthinkable that a man offering to engage his deceased wife's lawyer to help him probate an alleged will of the man's wife, would persist in requesting that lawyer to represent him after the lawyer had in effect characterized the will as a fraud, unless the man himself knew that the will was a fraud and hoped to stifle the lawyer's opinion of that will by engaging him as counsel. No man with an honest will in his possession would think of engaging as his counsel in the probate of that will a lawyer who pronounced the will spurious.
6. Lare's testimony as to where the alleged will was found and how he found it greatly strengthens one's conviction that this "will" is a fraud. Mrs. Lare had in her home a steel filing cabinet, with a lock on it, in which she kept stock certificates, fire and automobile insurance policies, title to car, war savings bonds and other valuable papers. Yet her willdisposing of property worth $80,000 was not kept in this box, but Lare found this will, so he says, "in the last place in the world I would expect to find it," in her wallet. He found it there, so he says, when he was looking for her automobile registration card which he wanted in order to obtain the manufacturer's number of Mrs. Lare's automobile. He could easily have obtained this from the title certificate which he well knew was in the steel box to which he had the key. Though Lare quickly found the registration card in the wallet, he did not at once use the information thus obtained for the necessary inscription of the Federal Stamp Tax (his avowed purpose), but he kept on searching in the wallet and "in the right hand compartment having the flap over it" he found the "will." He says "he then sat there and started to bawl." It is indeed strange that Mrs. Lare would carry her will in her wallet, though all other valuable papers were *Page 345 carefully kept in a steel cabinet, and it is equally strange that she had never informed her attorney or even Lare himself or anyone else of the existence of this will, though she held frequent communications with her attorney after the date of the alleged will.
7. Another circumstance which is highly condemnatory of Lare's good faith in this matter is found in the threatening language he used in an obvious attempt to discourage the contest of the "will" he offered for probate. After Attorney Renner refused to represent Lare, the latter wrote Renner under date of July 17, 1942, inter alia, as follows (Rec. 3304a): "In regard to the possibility of contest, I have nothing whatsoever to fear. . . . In event of any attack you will of course be in a vulnerable spot for you will have to testify as to what ever you may know about anything. You will be in the melee even if you would like to stay out. While I will not push you I know that you will be pushed and plenty hard." Then he said: "It will be rather hard for them [his wife's brothers and sister] to hear their heritage from the mouths of the doctors and nurses who have attended Pat for the last few years. I cannot help that." The word "heritage" is a little cryptic, but apparently Lare was threatening disclosures which might embarrass the brothers and sister. This letter evidenced a desire on Lare's part to blackmail both Attorney Renner and the relatives into silence, so that he could reap the fruits of the alleged "will," which Attorney Renner had discredited. What this court said in McHugh v. McHugh, 186 Pa. 197, 203,40 A. 410, is apposite here: ". . . evidence of the misconduct of a party in connection with the trial is admissible as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause, or is conscious that it is an unjust one."
8. When we consider that the established fact that Mrs. Lare was a skillful and experienced typist, this spurious "will"shows on its face that it was never *Page 346 typed by her. As Judge MILHOLLAND aptly said in his opinion: ". . . the contestants offered the testimony of two experts, Mrs. Grace Martin Cornelius and Mr. Nernberg. . . . Both of these experts working independently of each other, reached the same conclusion: that the typewriting on the alleged will could not possibly have been the work of a typist having professional training and experience, such as was possessed by the decedent, and that the errors and peculiarities of the typewriting on the alleged will were the same as those which consistently appeared in all the admitted typewriting works of Mr. Lare. The peculiarities referred to by both of these experts were the uneven touch reflected in the varying blackness of the letters in the alleged will; the awkward confusion of the word "all" with the printed "$"; the peculiar single spacing after periods, which would never occur in the work of a typist having the training and experience of the decedent; the erratic misalignments in the body of the will; the inconsistent misalignment of the date and the punctuation of the closing sentence of the alleged will." That all skillful typists maketwo spaces after a period was proved and is obvious from the casual inspection of well typed letters. Appellant concedes "it appears in the record that Mr. Lare's typing does show the habit of making [only] one space after a period." Six samples of Lare's typing each show a single space after periods, as does the "will" he offers for probate. A trained typist, as Mrs. Lare was, would leave two spaces after each period. Two experts on typing testified that it was Lare himself who typed this challenged paper and the reasons they gave for their conclusion are convincing.
9. There are on the blank check form used for this will 12 printed words and a printed "$" sign and the numbers 8-139. None of these had been obliterated. It is obvious that if a skillful typist used the face of this check form for the purpose of writing a will on it, she would have "blotted out" the above words and sign and numbers. *Page 347 No person of Mrs. Lare's long experience as a secretary would on such an important document as her will, allow the printed words "Forbes National Bank" and "Pay to the Order of" to appear in it when they serve no purpose there. These printed words would naturally induce a trained typist if she was going to use a "blank check" to write a will to use the back of the check on which no printed words or signs or numbers appeared.
10. Judge MILHOLLAND and the court en banc concluded from the testimony of several credible witnesses that though Mrs. Lare was a skillful typist, she during the latter years of her life avoided the use of a typewriter. It is therefore improbable that Mrs. Lare would revert to the use of the typewriter in order to write a 43 word will.
11. On January 9, 1943, at Mr. Lare's direction, his counsel addressed to Mr. Nernberg and Mr. Fearon (the expert witnesses employed by Lare) identical letters which purported to offer for their inspection several hundred specimens of his dead wife's handwriting, and which requested that the two experts compare these with the signature on the alleged will, and so determine whether the latter was or was not genuine. Neither of the experts employed by Lare offered any specimen of Mr. Lare's typewriting, or suggested the existence of any specimens of Mrs. Lare's typewriting, or the possibility of any comparison of either Mr. Lare's or the decedent's typewriting with that appearing on the alleged will. Though Mr. Lare engaged an expert, E. C. Leslie, and through the latter asked Lare to furnish him samples of Mrs. Lare's "work on the typewriter" and though he repeated these requests during the months preceding the trial, Lare did not furnish samples of her typewriting, (except a few unsatisfactory carbon copies). As a result, Mr. Leslie was never able to form any opinion of the genuineness or forgery of the typewriting on the alleged will. His testimony indicates that he devoted *Page 348 himself to the study of Mrs. Lare's signature. He testified (2319a) that he saw some carbon copies of Mrs. Lare's typing and when asked whether these carbon copies were satisfactory he answered "They were satisfactory to the extent that I could not say whether Mrs. Lare typed or did not type the will, I could not honestly say she did or honestly say she did not."
12. Another circumstance which stamps this "will" as fraudulent is the fact that although the typing on this paper was comparably fresh, the paper itself showed age. It had lost most of its gloss and color and crispness. The court below concluded from the evidence that "the paper [the blank check] was old and worn when the typewriting was inscribed on it."
These twelve most significant circumstances by no means exhaust the evidence which convinces the court below as it does the writer of this opinion that Mrs. Lare never wrote this alleged will. This evidence is equally conclusive that it was Mr. Lare himself who wrote this alleged will, but we will not herein review this evidence which so certainly connects him with this palpable fraud. The court below could not reach any other conclusion than it did reach in this case and if the issue had been submitted to a jury, and if the jury had for any reason found a verdict in favor of this alleged will, no court could permit it to stand.
The majority opinion seems to be based upon the idea that the basic question in this case is whether or not Mrs. Lare'ssignature on the challenged will is a genuine signature or aforgery. This is not the basic issue. The basic issue is: is this proffered paper Mrs. Lare's will or is it spurious and therefore a fraud. If Mrs. Lare signed a check form not filled out (as was her custom) and if her husband came into possession of such a paper and if he over her genuine signature wrote a will, without her authorization, that will is a forgery. That this appellant, Marcellus R. Lare, Jr., did write this alleged will over his wife's signature on a check which she probably *Page 349 signed "in blank" (as apparently was her custom) is to my mind conclusively demonstrated by the evidence now before us.
The majority opinion says: "If a jury were to believe the evidence of appellant, a verdict upholding the instrument as the will of Mrs. Lare would have to be sustained." The same thing could be said of the evidence of every fraudulent claimant in history. I cannot conceive of any honest and intelligent jury believing Lare's testimony. The chancellor and the court en banc did not believe Lare's testimony and characterized "much of it" as "evasive and contradictory." Lare's claim that his wife and not he typed the "will" is contradicted by an array of facts which proclaim the alleged will a sham. Lare had a strong motive to lie in this case for if his testimony is accepted he will receive not merely half of his wife's $80,000 estate under the intestate laws (which he gets in any event), but also the other half of her estate under a will which he undoubtedly criminally fabricated. As the court below said: Lare "had the motive and the opportunity to take this means of obtaining the estate."
If the proponent of a paper testamentary in form but which so unmistakably reveals its fraudulent character as does the paper Lare produces is entitled to have his "evasive and contradictory" testimony in support of it submitted to a jury so that the latter may, if it chooses, declare it to be a will, it is difficult to see what logical limit can hereafter be placed on imposters who claim the "right" to have their forgeries masquerading as wills submitted to a jury. If an issue D.V.N. is to be awarded in a case so plainly a cheat as this case is, such issues should hereafter be awarded "as a matter of course."
The evidence of the appellant as to the genuineness of Mrs.Lare's signature on this alleged will can be accepted without disturbing the conclusion which this evidence so imperatively requires that Lare came into possession of a blank check bearing Mrs. Lare's genuine *Page 350 signature and then fraudulently wrote above that signature what he now offers as her will. The genuineness of Mrs. Lare's signature is not the real issue in this case.
We have repeatedly said that the decision of the court below in cases like this will not be reversed unless the decision was an abuse of discretion.
In Fleming's Estate, 265 Pa. 399, 109 A. 265, the facts were that an alleged will was offered for probate and it purported to be witnessed by three persons. Two of these witnesses were dead at the time the will was offered but the surviving witness testified that the signature on the will was decedent's, and other witnesses testified to the genuineness of the testator's signature and of the signatures of the deceased "subscribing witnesses." The Orphans' Court denied an issue to the proponents of the alleged will. It based its decision on the facts that the alleged will contained words and names inconsistent with decedent's education and knowledge, that it did not carry out his expressed intentions as to the disposition of his estate, that the story told to explain the delay in producing the will was highly improbable, that there was evidence of the spurious character of the signature of the second witness and that the signature of one of the subscribing witnesses was a forgery and that the presumptive beneficiary of the will was not the person the decedent had ever declared his intention to make his principal beneficiary. In that case this court affirmed the action of the court below, and said, inter alia: "Fraud, of which forgery is a glaring example, is one of the principal grounds of equity jurisdiction, and, as a general rule, equity may decree the cancellation of a written instrument found to be a forgery: 9 Corpus Juris, 1195" and other authorities and cases. This court also said: "When a court is considering the validity of written instruments as affected by undue influence, fraud, forgery or incapacity, it is considering equitable questions where in jury trials are not, and were not when our first state constitution *Page 351 was established, a matter of right; and its declaration that 'trial by jury shall be as heretofore,' has no application to cases where such trial was not then demandable." (Citing cases). . . . " 'Unless provided by statute the parties to a contested will case have no right to a trial by jury': 6 Am. Eng. Enc. of Law (2d ed.), p. 979; and the same rule applies generally in probate courts: Ibid, p. 979; see also 24 Cyc. 104."
The case now before us differs from the case just cited principally in the fact that in the instant case the perpetrator of the fraud was clever enough to use what is probably a genuine signature; his fraud was in the typewriting which was done above the signature, clearly not by the wife, obviously by the husband, and whose effect is to give the entire estate of the wife to this husband of 38 months (when the "will" was made) to the exclusion of the wife's two brothers and one sister. In Fleming's Estate there was at least one "subscribing witness" whose signature apparently withstood all attacks made upon its genuineness, and yet this court held that the Orphans' Court reached a right decision in refusing an issue. In the instant case there was no subscribing witness and all the facts and circumstances furnish conclusive proof of the fraudulent character of the will offered by Lare.
In Culbertson's Estate, 301 Pa. 438, 152 A. 540, Judge GEST of the Orphans' Court found as a fact that a will probated twelve years before was a forgery and set its probate aside. In sustaining Judge GEST'S actions this court said: "It is needless, in passing upon the merits of the case, to refer to the unbroken line of authorities which hold that the facts as determined by the orphans' court are conclusive upon us where based upon sufficient evidence, and an examination of the record shows those made here to have been fully justified."
In Central Trust Co., Exr., v. Boyer, 308 Pa. 402,162 A. 806, this court, speaking through Mr. Justice DREW, said: ". . . in the trial of an issue to determine *Page 352 the validity of a will, the judge sits as a chancellor . . .; the evidence is addressed to him as to the jury, and he cannot permit the jury to do what he, as a chancellor, would not do." (Citing cases.) To the same effect is Wagner's Estate, 289 Pa. 361,367, 137 A. 616, where we said that the probate of a will will be set aside "when, in good conscience, a verdict of a jury, sustaining the will, could not be approved." Since the evidence in this case has been before a chancellor in the Orphans' Court and their opinion is unanimous that the will is a fraud, why should this case be retried before a jury when the chancellor and the Orphans' Court would in the exercise of their sound discretion set aside any verdict in favor of this will, should such a verdict be returned, for such action would be imperatively called for on testimony such as that now before us.
In Noble's Estate, 338 Pa. 490, 13 A.2d 422, this court said in an opinion by Mr. Justice LINN. "In Tetlow's Estate, 269 Pa. 486,494, 112 A. 758, we said: 'It is the established law of Pennsylvania that, in cases of the character of the one now before us, the judge is vested with power to decide whether or not he shall submit oral evidence to the jury, even though it be conflicting. It is his right and duty, after weighing the whole evidence impartially, to refuse to present it to the jury unless he either feels the ends of justice call for a verdict against the will, or is so uncertain on this point that he could conscionably sustain a finding either way on one or more of the controlling issues involved."
A study of this record convinces me that no other decision than that reached by the Chancellor and the court en banc is possible. Though the evidence is all in and a just conclusion reached,2 the majority opinion decides that this tedious case must be tried again by the Chancellor, in the presence of a jury. If the jury decides *Page 353 against this alleged will, the result will be the very result the court below reached. If the jury by any chance decides in favor of the will, the court below will set the verdict aside and again declare the will a fraud. What possible good can be accomplished by again taking testimony duplicating the 3,290 pages of testimony already taken, and which so conclusively proves that Lare's claim that his wife bequeathed him, to the exclusion of her brothers and her sister, all of her $80,000 estate by typing3 a will on the face of a blank check over her signature is spurious?
The paper offered by Lare as a will is an unmistakable counterfeit, and the decree of the Orphans' Court of Allegheny County saying so should be affirmed.
1 Lare had been a bank examiner and presumably had in his work encountered forgeries.
2 Men have been justly convicted of murder by circumstantial evidence no more conclusive than the circumstantial evidence offered in this case to prove the bank check "will" a fraud.
3 Lare's eagerness to furnish specimens of his wife'shandwriting and his reluctance to furnish specimens of his wife's typewriting (already referred to in this opinion under No. 11) speaks loudly as to his confidence that his wife's signature on the alleged will is genuine, and as to his fear that a thorough comparison of his wife's actual typing with the typing on the alleged testamentary paper will expose the latter as a fraud.