Estate of Tomlinson

Opinion, Mr. Justice Green: The reasoning and the authorities cited, in the opinion of this court in the case of Myers v. Vanderbelt, 84 Pa. 510, make it very clear that we intended to decide, and did decide, that the writing of a will in pencil is the full equivalent for a writing in ink. Mr. Justice Mercur, in the course of the opinion, said: “ So we think the authorities establish that a valid will may be drawn with the same materials that will suffice for the drawing of any written contract. As was well said by Mr. Justice Coulter in Hill v. Scott, supra (12 Pa. 169), they abundantly prove that a writing in pencil is equivalent and tantamount to a writing in ink.” We there held that a will, the whole of which was written in lead pencil, was in compliance with the requirement of the Wills Act of April 8, 1833, that “ every will shall bo in writing.” We are entirely satisfied with that decision, and have no disposition to change or modify it. The learned court below thought that, because the cancellation258 was in pencil, while the will itself was in ink, the cancellation was deliberative only, and not final, and he therefore overruled the auditor, who held it to be final. In doing this the court followed a few English decisions, which, while agreeing that wills written in pencil are valid, yet hold that where alterations were made in pencil they would be regarded, if the will was in ink, as deliberative only. It would not be difficult, upon a review of those cases, to show that in most, if not' all of them, the decision was based as well upon other facts and circumstances as upon the fact of the alterations being in pencil, but we do not think it necessary to engage in such a review. We regard our ruling in Myers v. Vanderbelt as obliterating the distinction between writings in ink and pencil, and assigning precisely the same legal effect to the instrument in either case. If there be no distinction between these methods of writing, so far as their legal effect is concerned, we can see no reason for assigning an effect to a pencil alteration different from that which we would assign to an alteration in ink. If we do that, we say they are not the same, whereas we have deliberately decided they are the same, not'only in relation to wills, but to other solemn instruments, as was shown in the opinion in Myers v. Vanderbelt. We do not care to repeat the reasoning and authorities of that opinion, because we deem it entirely unnecessary. It would certainly be inconsistent to hold that in alterations of wills pencil writing and ink writing have not the same effect, when in all other cases we say they have. As indicative of the testator’s intent, the pencil alterations speak quite as certainly as if they were in ink. The will was found after the testator’s death, locked up in a drawer in his own room. He chose to leave it in the exact condition in which it was found. As it was found, it clearly canceled certain of the legacies. By what authority can we say that they were not canceled, when in point of fact they were ? How can we say it was not the intention of the testator to make these cancellations, when in reality he has made them ? Do they not signify the same intent being in pencil that they would have signified being in ink ? We have no right to say they do not, and, that being so, they prevail alike, whether in ink or pencil. It is argued that the will was found among papers of no value, and therefore we must infer the alterations were deliber [259] ative only; but that objection would apply as well to tbe will itself as to the alterations. If it was found in a place of sufficiently careful custody to sustain it as a will, that custody was equally sufficient to sustain the alterations. Moreover, if sustained at all, it must be only in the condition in which it is found. But the argument upon this ground has no merit. The will was found locked up in a drawer in a bureau, standing in the testator’s room in which he lay sick and died. The keys, one of which unlocked the drawer, were delivered by the testator shortly before his death to Miss Cressman, a relative and his nurse, with direction to hand them to Mr. Dutton, one of the executors, as soon as lie was dead. To hold that such a custody was a careless custody, sufficient to raise even a doubt about the intention of the testator in regard to its contents, is simply impossible. Another circumstance, to which the court attached consequence, was that a paper was found in the testator’s box at bank which contained a list of the legatees as they were named in the will, and with all of the legacies canceled in pencil that were so canceled in the will, except one, John Keller, whose name was canceled, but not the amount, $500. The court thought this was proof that the testator was still vacillating, (in 1883 or 1887,) because John Keller’s name and legacy were not canceled in the will, and therefore that all the cancellations should be regarded as deliberative only. We cannot consider this circumstance as having such a meaning. To us it is indicative rather that the paper found in the bank was probably his first or deliberative memorandum, which he made final when he made the cancellations in the will, and there he concluded to let Keller’s legacy remain. We find no other facts in the ease indicating that the testator did not intend to do that which in fact he did do, and hence we are of opinion that the view of the whole subject taken by the learned auditor was the correct view, and that it was error to overrule his report. The decree of the Orphans’ Court is reversed, at the cost of the appellees, and the record is remitted, with instructions to distribute the fund in accordance with the report of the auditor.