Carmello's Estate

Opinion by Mr. Justice Sadler, Louis Carmello, an Italian by birth, was a naturalized citizen and resident of Monroe County, where he had been engaged in business until within a few years of his death. His knowledge of English was limited, as was his ability to write, and usually his signature was indicated by a mark. Though possibly able, with difficulty, to subscribe his name at times, yet this was not his general practice in conducting business transactions. For a considerable period before making the document now in controversy the testator had been ill, having suffered a stroke of apoplexy, and was a patient in a local hospital some weeks previously, though he had returned to his own home prior to January 23, 1925, when the writing was executed. His physician testified that his mental condition on that day was satisfactory, but his physical weakness made it doubtful if he could have made more than “a scrawl,” if able to write at all. In the November preceding he had requested an attorney to come to his house and prepare a will. The scrivener called, received directions as to the intended disposition of his estate, and within a few days the desired paper was prepared from the-data furnished. The contents of the completed document were gone over with the testator, and his satisfaction therewith expressed. At Carmello’s direction, his name was affixed by the lawyer, a mark added, and two witnesses then subscribed their names. Later, upon his return from the hospital, he determined to alter the will, substituting another for the one first named as executor. It was rewritten, with a single change, and, on January 23d, submitted to Carmello, who at the time was partially reclining on a cot in his room to which he had been confined. The document was read in full, and his name was then written by the scrivener in his presence, and, with the assistance of the latter, his mark was added. The lawyer and his stenographer signed upon request as witnesses. After *557 the death of testator this paper was admitted to probate by the register. By the will one property was devised to a daughter residing with him, and, with the exception of the gift of a piano to a granddaughter, all the residuary estate was divided equally between his five children. Three of these were dissatisfied with the division made and appealed. A citation was issued by the orphans’ court to show cause why the probate should not be set aside, on a petition asking for an issue, it being averred that the father was without testamentary capacity, that the will was obtained by the exercise of undue influence, and that the writing was not effectively completed. The first two grounds mentioned were abandoned, and the controversy narrowed to the question of the adequacy of the execution of the instrument as a will. The court below declined to send the case to a jury, because in its opinion no substantial dispute appeared to make this necessary (Tetlow’s Est., 269 Pa. 486; Miller’s Est., 288 Pa. 476; Wagner’s Est., 75 March T., 1927, 289 Pa. 361), and dismissed the contest. A review of this decree is now asked, and, in passing upon the sole question here raised, the findings of fact of the trial judge, where supported by competent evidence, must of course be accepted as conclusive by us: McCullough’s Est., 287 Pa. 580; Wagner’s Est.,.supra. Appellants contend that the making of the mark by Carmello was insufficient under the Wills Act (June 7, 1917, P. L. 403), and probate of the paper submitted to the register should, for this reason, have been refused. It appeared, as already noticed, that the decedent had been ill for some time as the result of a stroke, was in a seriously weakened condition on January 23d, and so continued until his death two weeks later. The court found the writing was prepared at Carmello’s direction, “was read in full, and the name signed in his presence by the scrivener, the paper then presented to him, together with a pen, with which he made his mark, and at *558 the same time [he was] told that this [was] the last will and testament and asked if he wished the two persons present to witness his will, to which he replied ‘yes.’ ” It is claimed, however, that the placing of a mark on the paper by testator was not enough, as it did not clearly appear that he was unable to sign his own name. This makes necessary a consideration of the applicable legislation controlling such a situation. The Wills Act (June 7, 1917, P. L. 403) provides, for the disposition of property by those over twenty-one, who are of sound mind (section 1). It also directs that the document shall be in writing, and, unless prevented “by the extremity of his last sickness, shall be signed by [the maker] at the end thereof, or by some person in his presence, and by his express direction.” In the absence of proof of these facts the provisions of section 2 are not applicable (Hughes’s Est., 286 Pa. 466; Wilson’s Est., 88 Pa. Superior Ct. 556) to the instant case, and they were not shown to be present. To support the writing, the authority must be found, if at all, in section 3, which regulates the execution of such an instrument by a mark “if the testator is unable to sign his name, for any reason other than the extremity of his last sickness,” and provides that in such case it shall be “subscribed in his presence, by his direction and authority, and to which he makes his mark or cross,” unless incapacitated from doing so. Under this legislation, a mark is sufficient if made by one who cannot sign for any reason, and this provision was intended to embrace cases where the testator is unable to act, whether “from lack of education or from physical weakness”: Report of Commission on Decedents’ Estates, 1917, p. 59. It is not necessary to show that the decedent had in the past been without power to sign his name, as urged by appellants, but the document is sustainable if he is without power to presently do so for other reasons, as for example, from loss of eyesight (Novicki v. O’Mara, 280 Pa. 411; Brehony v. Brehony, *559 289 Pa. 267), or the use of his hands: Girard Trust Co. v. Page, 282 Pa. 174. If the other requirements of execution are present, the proof that at some prior time the deceased could write, will not make inapplicable the section referred to: Hughes’s Est., supra. A like determination was reached under the earlier Act of 1848 (Jan. 27th, P. L. 16); Main v. Ryder, 84 Pa. 217. The same objection as now insisted upon was ineffectively raised, as appears by an examination of the record, in Miller’s Est., supra, where the decree refusing an issue was affirmed, though the suggested defect, as set forth in the statement of questions involved, was not discussed in the opinion filed. In the present case, the inability of Carmello to sign his own name by reason of physical weakness, when the will was executed, was sufficiently shown, and, in so acting, testator pursued the practice customarily followed by him in executing all business papers, a fact to be considered (Kimmel’s Est., 278 Pa. 435; Fisher’s Est., supra) in determining whether he intended to adopt the writing as his own. It is further alleged that the execution of the will is fatally defective since no express direction to sign decedent’s name was proven. By the terms of the earlier Act of 1833 (P. L. 249), this was necessary in all cases where testator could not write himself, but the requirement was modified by later legislation: Act January 27, 1848 (P. L. 16, section 1). And practically the same phraseology as found in that act is employed in section 3 of the Wills Act of 1917. To justify the acceptance of the paper it must now appear that testator’s name was signed to it “in his. presence, by his direction and authority, and to which he makes his mark or cross unless unable to do so.” Under this wording, permission to append the signature may be implied from the attending circumstances, differing in this respect from the requirement of “express direction” where the effort is to probate under the provisions of section 2 of the Wills Act: Novicki v. O’Mara, supra. Acquiescence is shown *560 by the placing of the mark on the paper after the name is written, as here (Girard Trust Co. v. Page, supra; Wilson’s Est., supra), and the mere fact that testator is physically assisted in making it is immaterial: Hopkins’s Est., 277 Pa. 157; Brehony v. Brehony, supra. The evidence in the present case clearly shows the signature to have been made in the presence of Carmello, who was in a position to observe its affixing, that he intelligently placed his mark, and caused the paper to be subscribed by two disinterested witnesses. As the record stood, no question as to testamentary capacity or undue influence was involved; the only dispute was concerning the right to probate the paper prepared in the manner described. The due execution sufficiently appeared by the facts proven, and the appeal from the probate was properly dismissed. The assignments of error are overruled. The decree of the court below is affirmed at the cost, of appellants.