Estate of Fletcher

McCOMB, J.

This is an appeal from a judgment denying probate of a purported will.

Juliana Matilda Fletcher died June 13, 1955. Thereafter appellants filed in the superior court a purported will of decedent dated October 6, 1951, together with a petition for probate thereof.

The alleged will was a typewritten document purportedly bearing the signatures of the testatrix and two witnesses, the latter two signatures following a formal attestation clause.

Respondent filed a petition for contest of the will before probate and for grounds of contest alleged that at the time of the execution of the document the testatrix was not of sound and disposing mind; that the offered will was not signed by decedent or executed with the formalities required by law; and that at the time of the execution thereof decedent was acting under the undue influence of appellant William W. Loftus.

At the trial before a judge without a jury, appellants (proponents), through the testimony of William W. Loftus, offered proof of the due execution of the will, that is, that the will was signed by decedent and by two subscribing witnesses.

The signatures of the witnesses were not disputed. One of the witnesses was deceased. The other, Doris Vroubel, called as a witness by appellants, admitted her signature to the attestation clause but testified that the recitals in such clause were not true and that the purported will was not executed with the formalities required by law. She testified that decedent was in a semiconscious slumber or coma at the time; that the purported will was signed by her by appellant William Loftus’ placing a pen in decedent’s hand and directing the signature by holding her hand in his; and that decedent did not know what was happening and did not in any manner declare the instrument to be her will.

The trial judge found as a fact that (i) the purported will filed by appellants was not prepared by decedent, nor did decedent cause it to be prepared; (ii) decedent did not declare it to be her last will and testament to the subscribing witnesses, nor did she by act or conduct imply in any manner that it was her last will and testament; (iii) decedent did not expressly or by implication request the subscribing witnesses

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