Concurring Opinion sur Exceptions
Lefever, J.,The evidence presented in support of the validity of the questioned will before us is so fantastic as to beggar belief.
In many respects the instant case is similar to Lare Will, 352 Pa. 323. In his dissenting opinion therein, at page 340, Mr. Chief Justice Maxey made the following pertinent suggestions for evaluating evidence in forgery cases:
“In human affairs we accept as true those things which are highly probable and as untrue those things which are highly 'improbable. 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 . . .”
Similarly, in the instant case, there are a number of circumstances which strongly indicate that the disputed will was forged by superimposing typewritten *692words above a genuine signature of decedent. Some of them follow.
1. The nature of the will
The alleged will “was typewritten on a brown press-board card, 6-%" by 2-%". It appears that the card was cut from a Manila envelope with scissors.” 1 Three horizontal printed lines divide the document into four equal sectors.
In the top sector appears the printed word “TO.” Following this is the penned signature or handwritten name “Thomas Dawson, Jr.,” through which several pencilled lines have been drawn. In the next sector appear the crucial typewritten words:
“TO WHOM IT MAY CONCERN.
SEPT. 25th 1960.
I WANT MY DAUGHTER MABEL NUGENT TO HAVE MY 15,000 DOLLARS THAT IS IN MY SAFE DEPOSIT BOX.”
The bottom of the “J” from the “Jr.,” of handwritten “Thomas Dawson, Jr.,” extends from the first sector through the printed line and encircles the typed word “MY” which precedes “15,000 Dollars.” The third sector is entirely filled with the large pencilled signature “Paul D. Cutler.” The fourth sector contains the typewritten word “WITNESS,” followed by the signature in ink, “David A. Thompson.”
Everything is carefully inserted between the printed lines. Significantly, the top quarter of this small document contains printing and a signature, unexplained and completely extraneous to it; the crucial typewritten portion occupies only one quarter of its limited space; and testator’s excessively large signature fully occupies the third quarter.
Why did decedent type his will on a Manila envelope? Where did the envelope come from? Why did he use *693the side of the envelope containing printed lines and the signature “Thomas Dawson, Jr.,” rather than the blank side as he did when he wrote Exhibit C-14? Why not use available Automatic Fire Alarm stationery, as he did when he wrote his 1954 will, or the “regular white paper from the office” or “a sheet of paper” which Thompson testified decedent used for earlier drafts (N.T. pp. 549 and 553) ? Why did he sign it before showing it to Thompson instead of in front of him? Significantly, no one saw decedent sign this document.
2. The place where the will was discovered
The story of finding the questioned document is fanciful. It was allegedly hidden in a small light brown envelope which was fastened by thumb tacks to the back of a wall mirror in decedent’s apartment. This envelope bore the legend “Automatic Fire Alarm Company, Consolidated Fire Alarm Division, 1384 Bourse Building, Philadelphia 6, Pa.,” stamped upon the upper left face of it, with no other descriptive language upon it. Even more bizarre, proponent removed this mirror from its position in decedent’s apartment without observing the alleged will, and wrapped and transported it to her apartment in Wildwood, New Jersey, where the will was dramatically discovered in the presence of many witnesses.
This was a most unusual place for decedent to lodge his will. It was very unlikely that proponent would discover it here; and proponent’s testimony indicates that she almost did not find it. Was not his safe deposit vault where he kept the bulk of his estate, his 1954 will and other important writings, the logical place for decedent to lodge his will? If decedent feared, or was dominated or influenced by Mrs. Strickland, and there is nothing but conjecture to indicate that this was so, why did he not entrust his will for safekeeping with this close friend, Thompson, or Lawrence W. Thomp*694son, Vice President of the Automatic Fire Alarm Company, in whom he had previously reposed confidence, or place it in his locker, where he had allegedly kept earlier wills? Or most natural of all, why did he not mail it to his daughter? That decedent placed it in an envelope and fastened it to the back of a mirror in his apartment and proponent removed the mirror without discovering it is incredible. Moreover, Ruth Jacobs who worked for decedent for 10 years, regularly did his laundry, and cleaned the apartment and helped him set up his furniture when he moved into it some months before his death, testified that she had never seen this mirror and, as far as she knew, this mirror had never been in decedent’s apartment.
3. The signature on the will
The alleged will is signed in pencil.
Despite diligent search by contestant and repeated demands upon proponent to produce such a signature, no other pencilled signature of decedent was uncovered. Thompson testified that several weeks before he had criticized decedent for typing his signature on a will and that when decedent showed him the questioned will he criticized him for signing it in pencil. However, despite these criticisms and the fact that decedent signed in ink safe deposit documents, prior wills, check endorsements, income tax forms, and all other documents of record, decedent was allegedly adamant that a pencilled signature on this important document, his will, was adequate!
The record before us contains photostats of numerous genuine signatures of decedent, either “Paul D. Cutler” or “Paul Cutler,” bearing dates from 1952 to January 23,1961. They were endorsements on pay checks, signatures on the safe deposit contract and entry cards, signatures on federal income tax “Employees’ Withholding Exemption Certificate,” and signatures on *695prior alleged testamentary writings (Exhibits C-l, C-2, C-Q3; C-14 and P-9). These signatures of decedent reveal firm, clear, regular, flowing writing until 1959 or 1960. Exhibit C-l clearly demonstrates that subsequent to July 1, 1960, decedent’s signature became increasingly more halting, awkward, faltering, irregular, broken, and effortful: the obvious and traditional hallmarks of advancing age or illness.
It seems impossible that the aged, ill decedent, whose endorsements on his pay checks from July 1, 1960, to January 23, 1961, were so irregular and faltering, could have, on September 25,1960, written the flowing, regular, firm, healthy signature which appears on the disputed will. The differences cannot be explained by the fact that the signature on the questioned will is in pencil and the specimens are in ink. Furthermore, decedent’s alleged explanation of his use of pencil on the disputed will was that the signature is “good enough. I can’t write so good in ink. . . I am too nervous.” The signature on the disputed will is obviously not a “nervous" one.
4. The disputed will completely cuts out contestant
Decedent had been estranged and separated from his wife for upwards of 30 years. He and Mrs. Olive Strickland had been intimate friends for many years. Witnesses at the trial referred to her as decedent’s “lady friend.” From December 29, 1952, until his death, he and she maintained safe deposit box number 3140 in the Land Title Bank and Trust Company, with right of access reserved to either separately or to the survivor, and each had a separate key. In this box, to which she had separate access, reposed the bulk of decedent’s estate, consisting of $15,000 to $18,000 in cash. He executed a will, dated May 1,1954, giving Mrs. Strickland all of the money in the box; and on December 21, 1959, he executed another document giving all the *696money in the box to her (Exhibit C-14); these documents were found in this safe deposit box after his death.
Decedent often had dinner with Mrs. Strickland. She regularly telephoned him at his place of work and was known to his fellow employes as his “lady friend.” She assisted in his admission into the hospital for his final illness. In contrast, decedent specifically directed Thompson not to tell his daughter, the proponent, of his hospitalization, and became indignant and angry when Thompson suggested that he would do so. Mrs. Strickland constantly visited him in the hospital, cashed checks for him, arranged for payment of his bills and generally attended to his welfare during his last illness. She was the informant on his death certificate. Yet, the disputed will, if valid, leaves nothing to this intimate friend of many years, who was the primary beneficiary in his 1954 will.
5. The significance of Exhibit G-lk
Both the learned hearing judge and the majority place great emphasis upon the similarity in form, in language, and in typographical peculiarity between the disputed will and Exhibit C-14,2 which was found in the safe deposit box of decedent after his death. They draw the inference from this apparent similarity that both documents must have been typed by decedent. To the contrary, however, the record shows that a copy of the contents of both sides of Exhibit C-14 was included on page 3 of the inventory of decedent’s safe deposit box (Exhibit C-33) which was delivered by contestant’s lawyer to the office of proponent’s counsel on June 22, 1961 (N.T. pp. 599 to 601).
In law, knowledge of the agent is knowledge of the principal. In fact, it is clearly inferable in this case that proponent saw the copy of Exhibit C-14 in her *697counsel’s office two days before the remarkable appearance of the disputed will on the back of the mirror— all witnesses agreed that the discovery occurred on the evening of June 2b, 1961. This provided proponent with two full days in which to create the disputed document by typing the alleged words of gift above a genuine, ancient, pencilled signature of decedent on a Manila envelope in her possession, with or without Thompson’s help, and then cutting the envelope down to its present size. If she did this, she would have logically followed the language and format used by decedent in Exhibit C-14, which came to her attention on June 22, 1961.
It follows that the similarity of language between Exhibit C-14 and the disputed will, rather than serve to authenticate the disputed will, challenges its validity. Moreover, the disclosure of the contents of Exhibit C-14 to proponent’s counsel on June 22, 1961, refutes proponent’s argument that Exhibit C-14 had never been called to the attention of the proponent or the court prior to the trial.
6. The Expert’s Opinion
The findings and testimony of Paul A. Osborn, contestant’s expert on questioned documents, corroborate contestant’s theory that the will was forged.
Osborn was of the opinion that the typing on the disputed will must have been done after the machine was returned from full overhaul and repair on November 30,1960, because of characteristic differences in specimens of prerepair and post-repair typing, viz.: the alignment and position of the letters “A” and “E”; the appearance of red marks from the red-black ribbon on both post-repair typing and the alleged will; and the difference in the wear of the ribbon. He was also of the opinion that the signature on the disputed will could not have been written by decedent on September 25, 1960.
*6987. Was the questioned document a will?
The disputed document does not contain a single word to indicate that it is a will or that it was intended to take effect after death. This is in glaring contrast to decedent’s 1954 short holographic will which provided: “The amount of money in this box is to go to Olive Strickland . . . This is my request in case of my death.” (Italics supplied.) Moreover, there is no dis-positive language in the document; at best it is precatory. Finally, the disputed document was not found in the usual place for a will, i.e., a safe deposit box; a home safe or tin box or desk where valuable papers are kept; or in the custody of a lawyer, trust company or friend. The foregoing are requisites for the document to constitute a will: Steiger Estate, 16 D. & C. 2d 79.
There is real doubt that such ambiguity is present in the questioned document as to permit use of extrinsic evidence to prove that it is a will.3 In any event, the sole evidence to transform the questioned document in the instant case into a will is the testimony of Thompson that decedent exhibited it to hiip on the night of September 25, 1960, and said, in effect “this is my will.”
The foregoing circumstances and reasons have raised grave doubt in my mind that the questioned document is the will of decedent. Per contra, it would appear that proponent had discovered the pencilled signature of decedent on a brown envelope; had somehow obtained *699access to the manual Smith-Corona typewriter in the Automatic Fire Alarm office sometime after November 30, 1960; and had superimposed the typing of the alleged will above decedent’s genuine signature. If I were the hearing judge, I would so find on this record. In the alternative, I would exercise the discretion vested in this court by section 745(c) of the Orphans’ Court Act of August 10,1951, P. L. 1163, as amended, to obtain an advisory verdict of a jury in this case.
As a member of the court en banc, however, I am faced with the unequivocal findings of the learned hearing judge that proponent and Thompson were truthful and that he believed their testimony. It is well settled that the findings of fact of an auditing judge or a hearing judge, sitting as a chancellor, like the verdict of a jury, are binding upon the court en banc and the appellate courts and will not be disturbed unless clear error has been shown: Pavlinko Estate, 399 Pa. 536, 541; Snyder Estate, 368 Pa. 393, 397; Faller Estate, 407 Pa. 73, 77; Roberts Estate, 350 Pa. 467; Schultz’s Estate, 24 D. & C. 546, 549; see Izzi v. DiTomo, 413 Pa. 461. Hence, I consider myself bound by the aforesaid findings of fact of the learned hearing judge, for whom I have great respect. Therefore, notwithstanding the bizarre facts in the instant case, which may prove the axiom “truth is stranger than fiction,” his decree must stand.
Accordingly, I reluctantly concur in the result reached by the majority.
Majority opinion, page 1.
Reproduced in entirety on page 4 of majority opinion.
Judge Shoyer, when the instant case was first before this court, properly set forth the rules of law with respect to admission of extrinsic evidence to prove a document to be a will: Cutler Estate, 27 D. & C. 2d 431, 436 et seq. (1961). Therein, he cited many cases and came to the conclusion that on the allegations in the pleadings then before him, the qustioned document “is, prima facie, testamentary in character . . He relied heavily on Kauffman Will, 365 Pa. 555. An examination of that case shows facts quite different from the facts in this case, which were conclusive that Miss Kauffman intended the disputed document in that case to be a will.