In re Pavlinko Case Brief

Summary of In re Pavlinko, 399 Pa. 536 (1959)

Facts: Both Mr and Mrs. Pavlinko, Russian immigrants, died testate. A testamentary writing was created by an attorney, where their intent to leave their property to each other, gifts to a brother and sister in law, residue and remainder to the brother of Mrs. However, Mr. Pavlinko had mistakenly signed his wife’s will and she his.

Issue: Whether a will mistakenly signed by the spouse can be corrected and determined valid by a court in equity or law?

Holding: No, an instrument recited as the will of the wife, intended and purported to give that person’s estate to her husband, cannot be probated as the will of the husband because he signed her will and she his where the statute clearly lays out the state’s requirements to the contrary.

Procedure: Trial ct determined that instrument of Mr. Pavlinko was void.

Rule: Every will shall be in writing and shall be signed by the testator at the end thereof.

Rationale: While the decedent’s mistake in signing the will of his wife is regrettable, it cannot be judicially corrected. The question is not one of the decedent’s intention, but what he actually did, or failed to do. He failed to sign the paper at the end thereof and this essential requirement of the statute is not met. The Legislature created a clear and plain rule to avoid a clear violation of its terms. No room is left for judicial construction or interpretation. A will must be signed at the end thereof; this paper was not a will within the Act’s meaning.

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