Argued May 29, 1946. This is an appeal from a decree of an orphans' court (one judge dissenting), dismissing an appeal from the probate of a will and refusing to grant an issue devisavit vel non. The allegations were (1) mental incapacity (2) undue influence.
Daniel M. Dichter, the decedent, died January 5, 1944, aged 78 years. The official death certificate gave *Page 446 the cause of death as "Cardiac Dilation due to Arteriosclerosis Psychosis". His next of kin were a brother and two nephews, issue of a deceased brother. The estate was valued at $7,000. All of the property (except 50 shares of stock of the Mesta Machine Company) had been owned by testator and his wife as tenants by the entireties. The wife predeceased testator, dying in December, 1943, a week prior to her husband's death. Testator, a pensioned employe of the Mesta Machine Company, had retired in November, 1940 because of disability due to illness. He and his wife had maintained a joint bank account in the Colonial Trust Company, a Pittsburgh bank. Raymond D. Wetherell, a proponent and chief beneficiary under the will, was an officer of the bank. Mr. Wetherell testified that he first met testator and his wife "about 1942" when the account was opened. Later he said he knew decedent and his wife for "twenty years"; that "it was 1922" when the account was opened in the bank; the learned hearing judge found that Mr. Wetherell first met decedent about 1935. But irrespective of the correct date, Mr. Wetherell testified that his only connection with the decedent and his wife was as teller at the window of the bank when he waited upon them as customers. He said that on one occasion he explained to decedent the nature of the various issues of United States Government War Bonds and advised him as to which issue was most suitable for his requirements. It does not appear that he ever visited the decedent and his wife. After the wife's death proponent arranged for decedent's admission into a nursing home and he took him there.
Proponent testified that on the date of the will, October 2, 1942, decedent and his wife came to the bank and informed him that they desired to make a will. He asked them if they had ever written a will and they told him that Mr. McWhinney had previously written their wills. Decedent said that they did not wish to go back to him because Mr. McWhinney was the attorney for his brother-in-law. (Mr. McWhinney later testified that he *Page 447 had written reciprocal wills for decedent and his wife in May, 1940 and under these wills the decedent and wife had left their estates to named nephews and nieces of both of them). Mr. Wetherell said decedent and his wife asked the name and address of the lawyer whom decedent had previously known, and who was the personal attorney for Mr. Wetherell. Mr. Wetherell said it was Bruce Harrison, Esq., of the law firm of Shrum, Harrison and Craig. Decedent stated that this was the man he was looking for. The name and address of Mr. Harrison was then written by Mr. Wetherell on the back of a deposit ticket. Mr. Wetherell then called Mr. Harrison on the telephone to inquire if he was in. Mr. Wetherell informed the decedent that the lawyer was in and was waiting in his office. A bank guard who participated in part of the conversation, showed the decedent and his wife the way to go to the lawyer's office. (Bruce Harrison, Esq., the scrivener, died after he had prepared the will, which he had witnessed, and assisted in its probate).
By the will decedent directed the lettering of headstones for himself and his wife; gave $100 for Masses for himself and, if his wife predeceased him, $100 for Masses for the wife; gave all the residue of the estate unto the wife absolutely, or if she predeceased him, then $25 to the pastor of his church; $100 to Mrs. Hazel Heath; $25 to the Little Sisters of the Poor; $100 to Mrs. Emma Schwartz; $200 to a church at Homestead for Masses for his two named deceased children; the sum of $700 to the trust company, in trust, for the perpetual care of graves and the rest, residue and remainder to "my friend, Raymond D. Wetherell" who was appointed executor.
Proponent testified that shortly after the execution of the will decedent gave it to him and also the will of the wife. Decedent asked Mr. Wetherell to keep the wills for him, which the witness did. (The wills were reciprocal).
The will was witnessed by the scrivener, Mr. Harrison, and by G. D. Shrum, Esq., Mr. Harrison's law *Page 448 partner (who was not acquainted with the decedent), and Miss W. A. Heiser, a secretary employed by the firm (who had seen the decedent and his wife once before going into Mr. Harrison's office). All three witnesses to the will swore before the register that they had seen the decedent sign his name and at the time of so doing he was of sound and disposing mind, memory and understanding. The wife's pastor and the bank guard testified that in their opinions decedent possessed testamentary capacity. Contestants produced two physicians and nine lay witnesses, all of whom testified that in their opinions decedent was mentally incompetent to execute the will on October 2, 1942.
The learned hearing judge in refusing to grant an issue wrote: "If the testimony offered to prove the incompetency of testator before and after the execution of the will had been related to the time of its execution on October 2, 1942, it would be necessary to grant an issue." Also "It [contestants' testimony] was not exaggerated or tainted by deceit or cunning for personal gain but, on the contrary, it came largely from disinterested and credible witnesses who had abundant opportunities for observation. From their viewpoint the testator was before and after the execution of the will in a far advanced state of senility from which he could not have recovered sufficiently on October 2, 1942 to execute a will and was at the time of its execution unable to legally dispose of his property." The court below ruled that the testimony of proponent's witnesses concerning decedent's mental capacityon the date of the execution of the will overcame the testimony of contestants' witnesses as to decedent's mental incapacity on that date, derived from observations made near October 2, 1942. The court below regarded contestants' evidence as possessing no probative value. With this we disagree. In the circumstances of this case, we regard that evidence as material and admissible.
It is true that evidence of testamentary incapacity, to be relevant, must relate to the time of execution: *Page 449 Herster et al. v. Herster et al., 122 Pa. 239, 16 A. 342;Wertheimer's Estate, 286 Pa. 155, 133 A. 144; Guarantee Trust Safe Deposit Co. v. Heidenreich et al., 290 Pa. 249,138 A. 764; Phillips's Estate, 299 Pa. 415, 149 A. 719; Olshefski'sEstate, 337 Pa. 420, 11 A.2d 487. But evidence of incapacity near the date of the will is admissible: Pidcock et al. v.Potter, 68 Pa. 342; Swails et ux. v. White et al., 149 Pa. 261,24 A. 292; Surface v. Bentz, 228 Pa. 610, 77 A. 922; Aggas v.Munnell et al., 302 Pa. 78, 152 A. 840. An excellent statement of these principles may be found in 68 Corpus Juris, section 71 k, pages 463, 464: "Although a testator's capacity to make a will is to be determined by his condition at the time of its execution, evidence of his capacity near that date either before or after execution may, depending on the circumstances of each case, be material and admissible, especially in case of a progressive or permanent disease. Such evidence is admissible only for the purpose of showing the condition of the testator's mind at the precise date when the will was executed." See:Irish v. Smith, 8 Sergeant Rawle 573; Wertheimer's Estate,286 Pa. 155, 133 A. 144; Brennan's Estate, 312 Pa. 335,168 A. 25.
Our study of the testimony convinces us, in the circumstances of this particular case, that the observations of contestants' witnesses concerning decedent's mental capacity were made sufficiently near October 2, 1942, to enable them to express their opinion of decedent's mental capacity on that date.
It was clearly established that this 78 year old decedent, retired from work because of sickness and disability, suffered and died from a progressive and permanent disease. Dr. Campbell testified that he had been the surgeon for the Mesta Machine Company for thirty years, and had known the decedent, an employe, for at least fifteen years. In November, 1940 he examined decedent and found a stomach condition which caused decedent to quit his employment and go on a pension. While *Page 450 the doctor testified without his records, and from memory, he said that he had treated decedent professionally from November, 1940 until decedent's death in January, 1944. He testified that he saw him professionally frequently during 1942 — the first part of the year at least twice a week and after that at least once a month. In 1943, he visited decedent occasionally, but was not the attending physician when he died. The doctor testified, "I observed that he had arteriosclerosis, high blood pressure and mental deterioration, commonly called softening of the brain, a chronic condition which is incurable and never gets better after it once starts." He testified that in his opinion decedent did not possess the mental capacity to make a will on October 2, 1942. He assigned as his reason "Because he (decedent) was of unsound mind. He really had what is called senile dementia." Dr. Malcolm, the other physician, was on the staff of St. Francis Hospital (having an important mental clinic), Mercy Hospital, and was assistant professor of neurology at the medical school of the University of Pittsburgh. Decedent was brought to St. Francis Hospital for observation and remained there from September 27 until October 2, 1943 and was under the charge of Dr. Malcolm. The doctor diagnosed his condition as "generalized arteriosclerosis, a hardening of the arteries, and a marked arteriosclerosis in the eyes," that the mental symptoms had been present for eighteen months to two years prior thereto, and that in the opinion of the doctor on October 2, 1942 decedent would not have been competent to have made a will.
We need not relate, in detail, the testimony of the nine lay witnesses as to decedent's mental capacity to make a will on October 2, 1942. It is true that none of them saw decedent on that particular day. However, they testified as to occurrences and circumstances shortly before and after that date, to enable them to testify as to their opinions of the competency of decedent on the date of the execution of the will. *Page 451 Olshefski's Estate, 337 Pa. 420, 11 A.2d 487, relied upon by the court below, is distinguishable from the present situation. In that case a verdict of a jury on a trial of an issue d. v. n. was set aside because of the overwhelming weight and character of proponent's evidence. There the decedent told the scrivener "everything she owned and the disposition she desired to be made of it, and that in doing so, she named each of her children individually and determined just what each should receive." The clarity of decedent's mind was corroborated by the other subscribing witnesses. The doctor's testimony that, from his observation of decedent three months after the execution of the will, she was mentally incompetent "was not grounded upon any definite or real knowledge of (decedent's) testamentary capacity at the time she executed her will." Such opinion was not supported by substantial facts.
We are not unmindful of the fact that decedent's wife, four years younger than decedent, made a reciprocal will. On a trial of an issue, this may or may not prove to be a relevant fact. However, in the present proceeding, the mental and physical condition of the wife was not shown, nor is it here material. None of the wife's estate passes to the present proponent underher will because all property (except the Mesta stock owned by the husband alone) was held by the husband and wife as tenants by the entireties.
Upon a review of all the evidence, it is disclosed that a substantial dispute exists as to the decedent's mental capacity on October 2, 1942 to make a will, which requires submission to a jury for determination: De Laurentiis's Estate, 323 Pa. 70,186 A. 359; Lare Will, 352 Pa. 323, 42 A.2d 801.
We are of opinion that an issue should also be granted to determine whether or not the writing of October 2, 1942 was procured by undue influence.
This decedent was aged and mentally and physically sick and infirm. His will passes the bulk of his estate *Page 452 to a stranger to the blood — an officer-employe of decedent's bank. Proponent stated that he had had no relations with decedent except at the teller's window at the bank; that he had sent decedent to his (proponent's) lawyer to have the will drawn; he had telephoned to the lawyer for an appointment for decedent; after the will had been executed it had been kept in proponent's possession until the death. In all these circumstances a confidential relationship was established. No imputation or suspicion of wrongdoing is attributed to the reputable attorneys who drew the will. However, there should be more specific evidence to establish that decedent had an intelligent understanding of his testamentary dispositions. We do not agree that the testimony of the subscribing witnesses, and the offer of the record of probate in evidence, underKeen's Estate, 299 Pa. 430, 149 A. 737; Plotts' Estate, 335 Pa. 81, 5 A.2d 901; Szmahl's Estate, 335 Pa. 89, 6 A.2d 267, established a prima facie case which the evidence of the contestants did not rebut. As Mr. Justice HORACE STERN stated in Szmahl's Estate, supra: "The acceptance in evidence of the probate merely shifts to contestants temporarily the duty to come forward with evidence . . ." Id. at page 93. It is pointed out that the burden of proof rests upon the proponent throughout, but that the "burden of coming forward with evidence (may) pass back and forth from one side to the other." As we have indicated above, Mr. Wetherell was a stranger to the blood; he occupied a confidential relation to decedent who was an old, sick and mentally and physically infirm man; he received the large bulk of the estate under the will; he was instrumental in arranging for decedent to go to the office of proponent's own attorney; and he kept the will in his custody after it was executed. In these circumstances, the burden shifted to the proponent to demonstrate that the bequest was free from fraud, coercion, inordinate flattery or imposition and with a full understanding and intelligent perception on the part of decedent concerning *Page 453 the disposition he desired to make of his property to the persons and objects named in the will as the recipient of his bounty. See Stewart Will, 354 Pa. 288, 47 A.2d 204. Such an issue must be decided by a jury.
The decree is reversed and the record is remanded to the court below, with direction to grant the issue devisavit vel non as prayed for. Costs to be paid by the appellees.