Summary
The court considered whether two handwritten notations placed with a previously probated will were prima facie testamentary writings. It held that the notations could constitute codicils or later testamentary writings because they appeared to contain instructions to the executor effective after the decedent’s death. The court sustained the appeal, opened the probate decree, and remitted the record to the register of wills for consideration of the writings.
Topics
Practice areas
Questions Presented
- Whether the Orphans' Court could open the register's decree admitting the 1942 will to probate and remit the matter to the register based on prima facie proof that later writings were testamentary.
- Whether the two handwritten notations, although informal, precatory, and containing no express disposition of property, were prima facie testamentary in character.
Holdings
- After the register has entered a decree of probate, the register cannot revoke or modify that decree to receive a later will or codicil; the proper remedy is an appeal to the Orphans' Court. On such an appeal, the Orphans' Court may open the decree upon prima facie proof of the later writing's testamentary character and remit the record to the register, but may not finally determine the later writing's validity or admit it to probate itself.
- The two handwritten notations were prima facie testamentary because, viewed in context, they contained instructions that the decedent intended her executor to carry out after her death, even though the writings were informal, precatory, and did not expressly dispose of property.
Key quotations
“Our function is to ascertain whether the notations in question appear, prima facie, to be testamentary in character.” (16 Pa. D. & C.2d at 83)
“We therefore conclude that, under the circumstances of this case, we must hold that contestant has established, prima facie, that the two notations in question are testamentary in character because they contain instructions which decedent desired her executor to carry out after her death.” (16 Pa. D. & C.2d at 86)
Factual background
Carrie S. Thomson executed an undated typewritten will in the summer of 1942, leaving her estate to her father or, if he predeceased her, to her brother Sidney, who was also named executor. After marrying Joseph Thomson in 1946, she wrote two handwritten notations in 1948 and 1952 on the inside of the backer to which the will was stapled; the will itself contained the handwritten word "over." The writings asked Sidney to care for their mother and to help the children of another brother, and Sidney sought to have them treated as codicils or as a later holographic will because their treatment affected Joseph's statutory spousal allowance.
Procedural history
The register of wills admitted the undated 1942 will to probate on November 1, 1957. Steiger appealed, and the Orphans' Court issued a citation to show cause why the decree should not be opened to permit the register to receive and act upon petitions concerning two later writings dated February 6, 1946, and July 1, 1952. After a hearing on petition and answer without testimony, the court sustained the appeal, opened the probate decree, and remitted the record to the register.
Remand instructions
The decree admitting the undated 1942 writing to probate was opened, and the record was remitted to the register of wills to receive and act upon a petition seeking probate of the February 6, 1946, and July 1, 1952, writings as codicils to the probated instrument.