Reilly's Estate

Per Curiam, At the time of the filing of petition for citation to show cause why an issue should not be granted, the petitioner, Margaret Reilly, had no standing. She was not next of kin at the time of testator’s death. However, an answer was filed by one of the legatees on his own behalf and for other parties in interest, and in due course — after replication — a hearing was had. The hearing judge heard the testimony, insisting, however, that an administration should be raised on the estate of testator’s father and that estate made a party to the record, which was done. The hearing judge treated the contest on its merits, and for good and sufficient reasons, as set forth in his opinion, refused to award an issue. No one has excepted save Margaret Reilly, the petitioner, and her brother, Thomas Reilly. They have no standing to except. If the will is invalid, an intestacy follows and the estate passes to the next of kin, John Reilly, father of testator. John Reilly, the father, died in Ireland in October, 1926, some six months after the date of testator’s death. The ancillary administrator in this jurisdiction has not excepted; and it is he alone who would take and transmit the estate to Ireland for administration and distribution under the laws of that country. However, as the respondents have not raised this question, we have examined the record with that critical care which an appellate court on appeal, or this court on exceptions, should bestow, and we find no reasons whatever for disagreeing either with the facts or the application of the law by the hearing judge. Testator was fully conscious of what he wanted done; he himself suggested the making of his will; the scrivener was brought in by members of his family for this specific purpose, and he intelligently dictated his wishes. The drugs which had been administered to alleviate his pains in no way affected his memory, and his mentality was clear in naming those of this family to [541] whom he desired his estate to pass. Had it been his purpose to leave all to his father — to whose support in Ireland he from time to time contributed— no necessity for a will existed, nor had he not wished to ignore the petitioner, either directly or through her father, for reasons apparent in the testimony, likewise there would be no reason for a will. But it is clear that he had a fixed purpose in mind as to the destination of his estate and was insistent upon its being properly carried out. The scrivener, a notary public by profession, unfortunately was not conversant either with the drawing of wills or the method of execution. He did seem to know, however, that one sick unto death usually made a mark — and he had this testator make a mark. This occurred quite early in the morning of April 2, 1926. This scrivener thought there should be witnesses to the mark — “I realized it was no account without any witnesses. So I told Mrs. Anderson and Mr. Reilly (sister and brother of testator and legatees named in the will) that wouldn’t do; they would have to get some witnesses; the only thing about it, I wouldn’t have to rewrite, resign it; I will read the will to him and ask him if that is the signature before the witness. . . .” Accordingly, the scrivener left the hospital with that understanding and sometime about six o’clock in the morning returned to the hospital. Mr. McCoy and Mrs. Tomany were there. In the presence of these two people the scrivener read the will to testator, and said to him then and there: “Now this is your cross-mark, isn’t it?” Reilly said, “It is.” I said, “You folks hear what he is saying? You sign as the witness that he verifies this to be exactly as he wishes.” They signed and afterwards he took their acknowledgment as a notary public. The argument of exceptants is largely confined to a criticism of the method of execution; they claim it to be improper as well as illegal. We cannot acquiesce in such contention. By the Act of Jan. 27, 1848, P. L. 16 (supplementary to the Act of April 8, 1833, P. L. 249), it is provided that every last will and testament theretofore made or thereafter to be made, to which testator’s name is subscribed by his direction and authority, “or to which testator hath made Ms mark or cross,” shall be deemed and taken as valid, provided the other requisites under existing laws are complied with. In Main v. Ryder, 84 Pa. 217, this act was upheld by Mr. Justice Mercur (at page 223), when, in answer to the contention that the act was intended to apply to such cases only when testator, by reason of want of education, was unable to write, said: “We discover nothing in the act sustaining that view. It makes no mention of insufficient education or want of physical ability. It declares that form of execution sufficient in all cases.” The act and reason for its passage is considered at some length in Vosburg’s Will, 9 Pa. C. C. Reps. 243. The act, however, is in terms repealed by the Wills Act of June 7, 1917, P. L. 403, which act became effective on Dec. 31, 1917, and is stated to apply to the wills of all persons dying on or after that day. The reasons in repealing this former act appear in the commissioners' report. Section 3 of the later act is intended to replace the entire Act of 1848. As stated by the commissioners, it is intended to cover cases where a person is unable to sign his name, whether from lack of education or from physical weakness. The hearing judge found testator’s name was subscribed to the will in his presence; that it was read over to testator and approved by him in the presence of two witnesses; and that testator, in the presence of said witnesses, recognized his mark and his name as written by the scrivener. He ruled, on the authority of Picconi’s Estate, 4 D. & C. 245; Novicki v. O’Mara, 280 Pa. 411; Girard Trust Co. v. Page, 282 Pa. 174; Hughes’s [542] Estate, 286 Pa. 466, and Carmello’s Estate, 289 Pa. 554, that the direction and authority to subscribe testator’s name need not be express, but may be implied; that in the instant case the name of testator was subscribed to the will at his direction and authority; that there was a proper execution within the meaning of the 3rd section of the Wills Act of 1917; and that a consideration of the terms of section 2 of said act was, therefore, unnecessary. As we are in accord with the findings of fact and rulings of law of the hearing judge, all exceptions are accordingly dismissed; costs to be paid by the contestants. Henderson, J., did not sit.