Opinion
September 28, 1950.
November 13, 1950.
Wills — Obliteration — Procedure — Appeal from probate — Presumption — Custody of will — Joint access to safe deposit box — Nature of obliteration — Proof of matter obliterated — Unsigned declarations by testator — Evidence of intent — Wills Act of 1917.
1. The issue of whether or not an obliteration in a will was effective is properly raised upon an appeal from probate and not on the construction of the will. [553]
2. Where testator had custody of the will, the presumption is that any obliteration was his own act. [553]
3. The fact that another who was benefited by the obliteration had joint access with testator to the safe deposit box in which the will was kept does not of itself rebut the presumption that the obliteration was the act of testator. [553]
4. An obliteration, constituting a broad, thick line or smear of ink, which wholly effaces, blots out and renders imperceptible that which has been written under it, is a revocation by obliteration within § 20 (a) and (b) of the Wills Act of June 7, 1917, P. L. 403. [553]
5. There is no requirement, statutory or decisional, which requires the proponent to prove whose name was obliterated or what word or words were obliterated. [553]
6. Where an obliteration within the Wills Act was presumptively accomplished by testator, unsigned writings or declarations of testator are admissible to explain or reveal his intent. [553-4]
Before DREW, C. J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeal, No. 20, March T., 1950, from decree of Orphans' Court of Washington County, Feb. T., 1947, No. 22 in Estate of Emma Grable Hildebrand, Deceased. Decree affirmed.
Appeal by contestant from probate of will. Before ANDERSON, P.J.
Adjudication filed dismissing appeal; exceptions to adjudication dismissed and final decree entered. Contestant appealed.
Thomas L. Anderson, for appellant. Charles G. Sweet, with him David I. McAlister, Adam L. Sanders and McAlister Sweet, for appellee.
The appeal concerns the partial revocation of a will by obliteration. The pivotal issue is whether an effective obliteration was established.
Emma Grable Hildebrand, the testatrix, was an aged widow, who had resided with her step-son for many years and raised the step-son's daughter, Mildred Hildebrand Dunn. Mrs. Hildebrand died, testate, on April 22, 1946. Her heirs and next of kin were four nieces. The probated, typewritten will was professionally prepared and is dated July 19, 1935. Under the terms of the will $3,000 was bequeathed to Mildred Hildebrand Dunn (child of her step-son), $2,000 to Martha Horn Amos (niece), $1.00 each to Odessie Grable and Maggie Grable Fowler (nieces) and $2,000 to Mary Grable Conkle (niece and contestant). The seventh item of the will, the residuary clause, reads as follows: "Seventh. As to all the rest, residue and remainder of my estate of which I may die seized or entitled to at the time of my death, whatsoever and wheresoever, I give, bequeath and devise to be equally divided among Mildred Hildebrand Dunn, Martha Horn Amos, share and share alike."
Mildred Hildebrand Dunn was named as Executrix. Following testatrix's conceded signature and the duly executed attestation clause, and at the spatial end, appear the following unsigned words in the admitted handwriting of testatrix: "I Emma Grable Hildebrand marked off one name in Seventh (7)"
After the death, the will was found in a sealed professional envelope of testatrix's predeceased scrivener-lawyer in the testatrix's safe deposit box.
The present issue was properly raised upon an appeal from probate and not on the construction of the will: Rockett Will, 348 Pa. 445, 35 A.2d 303. Since testatrix died in 1946 the case is governed by sec. 20(a) and (b) of the Wills Act of June 7, 1917 P. L. 403, 20 PS 271, which expressly provide that any devise or bequest may be revoked ". . . by . . . obliterating . . . the same by the testator himself . . . ."
Where testator had custody of the will, the presumption is that any obliteration was his own act: Baptist Church v. Robbarts, 2 Pa. 110; Evans's Appeal, 58 Pa. 238; Wood's Estate, 247 Pa. 377, 93 A. 483; Sando Will, 362 Pa. 1, 66 A.2d 312; Lindeman's Estate, 141 Pa. Super. 225, 14 A.2d 837; Heller Estate, 158 Pa. Super. 194, 44 A.2d 528. The fact that Mildred Hildebrand Dunn had joint access to the testatrix's safe deposit box will not of itself rebut this presumption. Contestant submitted no proof to the contrary. Mrs. Dunn testified that she had neither seen the will nor knew of its existence before the death. See Wood's Estate, 247 Pa. 377, 381, 93 A. 483.
The obliteration, constituting a broad, thick line or smear of ink, approximately two and a quarter by one-eighth inches, wholly effaced, blotted out and rendered imperceptible that which had been written under it. Such method of obliteration is clearly within the Act. There is no requirement, statutory or decisional, which requires the proponent to prove whose name was obliterated or what word or words were obliterated. As the obliteration was complete we need not consider other forms of obliteration, such as lines drawn through a writing or signature: Evans's Appeal, 58 Pa. 238; Heller Estate, 158 Pa. Super. 194, 44 A.2d 528.
Testatrix, in her admitted handwriting at the bottom of the will following its execution, declared that she had "marked off one name in Seventh (7)." True she did not sign the writing. But this was unnecessary since presumptively the obliteration was accomplished by her. Unexecuted writings may not revoke a will: Heise v. Heise, 31 Pa. 246; Whitaker's Estate, 219 Pa. 646, 69 A. 89. Parol declarations are also insufficient to revoke: Clingan v. Mitcheltree, 31 Pa. 25; Porter et al., v. Wolf et al., 272 Pa. 93, 116 A. 55. The present revocation, however, was not by either of these methods. It was by obliteration. Declarations by testator in these instances, are admissible to prove intent to obliterate: Evans's Appeal, 58 Pa. 238; Cummins's Estate, 37 Pa. Super. 580. The distinction between an ineffectual attempt to revoke by an unsigned paper, and where an obliteration effectively revokes a testamentary provision and unsigned writings or declarations of testator are admitted in evidence merely to explain or reveal testator's intent, is shown by Williams' Estate, 336 Pa. 235, 9 A.2d 377, where this Court said, p. 237: ". . . unsigned writings, on the margins, back or other parts of the paper on which the will was written, even though written after the will was executed and expressing an intention that the will be revoked, [are] not effective, and that the will should be probated and the subsequent writings disregarded: Lewis v. Lewis, 2 W. S. 455; Heise v. Heise, 31 Pa. 246; Saunders v. Samarreg Co., 205 Pa. 632, 55 A. 763. See also Dixon's App., 55 Pa. 424; White's Est., 262 Pa. 356, 105 A. 549. As is conceded, the writings here in question cannot be considered as a revocation under the first method prescribed by the act, that is as `a will, codicil or other writing declaring the same,' since they were not signed at the end thereof, a necessary prerequisite to the proper execution of wills: Act of 1917, supra. Nor can they be given effect as a cancellation, obliteration or destruction of the will, the testamentary provisions of the will remaining untouched by their addition." (italics supplied)
Decree affirmed at appellant's cost.