In re Estate of Laurin

ROBERTS, Justice,

dissenting.

I agree with the majority that the orphans’ court erred in holding testamentary on its face the brief statement composed and typewritten by an acquaintance of testatrix and signed later by testatrix with no witnesses present. However, I cannot agree with the majority that “consideration of extrinsic evidence” requires, the conclusion that testatrix intended the disputed writing to serve as her last will and testament and thus to supersede the formal will executed by testatrix with the aid of her attorney in 1974 and admitted to probate a week after her death. Because neither the character of the writing itself nor the extrinsic evidence supports the decree of the orphans’ court, the decree should be vacated and the case remanded for an evidentiary hearing. Thus I dissent.

The only reference to extrinsic evidence by the orphans’ court in support of its result is the comment: “If the language had been ambiguous on its face, the court might *485have considered the extrinsic evidence given by [Janet] Brian [the lay scrivener] which required the same conclusion.” From this statement it is difficult to tell what consideration, if any, the court gave to this evidence, which consisted of the deposition testimony of the only witness to the making of this disputed writing.

In fact, the testimony of Janet Brian provides considerable support for appellants’ contention that testatrix intended to prepare not a will but simply a memorandum for her attorney, a memorandum which she never sent.1 According to Brian, on March 16, 1978, Brian had agreed to care for testatrix during the evening while testatrix’s daughter, appellee Beatrice Denk, was out of the house. In the course of a conversation between testatrix and Brian, testatrix stated that she had “a lot to take care of” and expressed a desire that “everything should be Betty’s.”2 Brian remembered asking testatrix, “ ‘Well, do you want me to type up something to send to the lawyer?’ because she [decedent] mentioned the lawyer, she never mentioned the name.” Testatrix replied, “ ‘Okay.’ ” Brian then went upstairs to her own apartment and typed the writing at issue, entirely in her own words. Her choice of language was based on her perception of “how you would send something to a lawyer.” She then gave the writing to testatrix, who received it without comment and without signing it in Brian’s presence. At no time did either Brian or decedent mention the word “will.”3

*486Testatrix and Brian never discussed the writing again. Indeed, testatrix appears never to have mentioned the writing to anyone, for her 1974 will, which divided her property equally between appellee and the children of testatrix’s other daughter,4 was admitted to probate without objection on April 27, 1978, five days after testatrix’s death. The writing remained undiscovered in a “card box” on appellee’s coffee table until some time in the summer of 1978 when Brian casually told appellee of the “favor” she had performed for testatrix: “then I mentioned that I had typed this thing, you know. I didn’t even know it was a will or anything. I just thought I was doing the woman a favor. If I thought it was, I never would have gotten involved.”5

This, then, is the extrinsic evidence which the orphans’ court “might have considered” as an alternative ground for its result, and which the majority deems an “appropriate” basis for affirmance. While it is certainly true that this Court may affirm the decision of the orphans’ court if the result is correct on any ground, Mazer v. Williams Brothers Co., 461 Pa. 587, 337 A.2d 559 (1975), it is manifest that the testimony of Janet Brian does not provide such a ground.

The additional extrinsic evidence upon which the majority relies as support for its erroneous result is equally dubious. The majority observes that testatrix “prepared” the writing “while she was ill, only one month before her death and just eight days after she had been discharged from the hospital.” Majority opinion at 1293. From this “evidence,” the majority apparently infers that the writing was “prepared” in contemplation of death. What the majority fails to note, however, is that testatrix had been hospitalized for a foot ailment, serious and painful but hardly terminal, and that she died of pneumonia. Moreover, after her discharge from the hospital, testatrix constantly spoke of her desire to *487return from Harrisburg, where she was living with appellee, to her home in Pittsburgh.6 Indeed, a week before her death she informed her granddaughter Sharon Duey, appellee’s daughter, that “[s]he had things she wanted to do [with her will] when she got back to Pittsburgh.”7

Deponent Duey’s above-quoted recollection not only suggests that testatrix did not view her death as imminent but also provides additional support for appellants’ contention that testatrix intended the writing simply as a memorandum to her attorney, a contention that the majority has overlooked. The majority views testatrix’s failure to effect delivery of the writing to her daughter as evidence that testatrix intended the writing to function as a will rather than as an inter vivos gift of all her possessions.8 Here, however, as distinguished from the cases cited by the majority, appellants do not argue that the writing represents a failed inter vivos conveyance. The issue is whether testatrix intended the writing to act as a revocation of the detailed 1974 will in the possession of her attorney or merely as an instruction to him to prepare a new will.

In this light, it is instructive to consider the observation of this Court in Forquer’s Estate, 216 Pa. 331, 66 A. 92 (1907):

“Without doubt . .. the careful preservation of a regularly executed will up to the time of death is of importance in the construction of a subsequent paper of doubtful testamentary import, an instance of which is found in Jacoby’s Estate, 190 Pa. 382 [42 A. 1026 (1899)].”

Id., 216 Pa. at 339, 66 A. at 96; see also Richards Will, 439 Pa. 5, 264 A.2d 658 (1970); Snyder Estate, 58 D. & C.2d 541 *488(1972). Here, testatrix’s “regularly executed” 1974 will had been carefully preserved by her attorney and was admitted to probate soon after her death. Although she could easily have done so, testatrix made no attempt to instruct her attorney, either by telephone or letter, with regard to the alteration or destruction of that will. Testatrix was not, like the decedent in Kauffman's Will, 365 Pa. 555, 76 A.2d 414 (1950), making a hurried attempt to dispose of property which would otherwise pass by intestacy. Rather, she was contemplating the alteration of a carefully considered and previously executed scheme of distribution. In the circumstances, there is clearly no compelling need to give testamentary effect to this brief writing of dubious testamentary intent, especially where the evidence suggests that testatrix may well have changed her mind. Indeed, to hold on the basis of this record, as the majority does, that an informal writing to which testatrix never referred as her will supersedes her formally executed and probated 1974 will is manifest error.

Nonetheless, the proper remedy for this error is not for this Court to find, on this record, that testatrix’s probated 1974 will is her final expression of testamentary intent. The erroneous holding of the orphans’ court that the informal writing is testamentary on its face has thus far denied appellee, the proponent of the disputed document, the opportunity to prove that testatrix intended the later writing to serve as her last will and testament. Therefore, the case should be remanded for an evidentiary hearing to permit the orphans’ court to consider what it said it “might have considered,” as well as any other evidence which may shed light upon testatrix’s true intentions.

LARSEN, J., joins this dissenting opinion.

. Testatrix placed the writing in a “card box” and never mentioned it to anyone. It is at least as reasonable to conclude that testatrix, an elderly and volatile woman, subsequently changed her mind about having her 1974 will altered as it is to conclude that she intended these few lines to serve as her last will and testament. See n.2 and text, infra.

. According to the deposition testimony of Sharon Duey, daughter of appellee, testatrix frequently contemplated making changes in her 1974 will and discussed disinheriting nearly all of her family at one time or another. Record at 67a-70a, 81a.

. Record at 27a-36a.

. Virginia Fleming, who predeceased testatrix on September 11, 1976. In the event that a daughter predeceased testatrix, the will provides for distribution of the daughter’s share to her issue.

. Record at 45a.

. Record at 112a.

. Record at 69a.

. The majority states: “Instead [of effecting delivery], she placed the writing, properly signed at the end, in a drawer, leaving Beatrice [appellee] unaware of its existence until after her death.” Majority opinion at 1293-94 (footnote omitted). Needless to say, the end of any kind of writing is the logical and “proper” place for a signature.