148 A.2d 528 (Pa. 1959)
Vasil Pavlinko died on February 8, 1957, and his wife Hellen died on October 15, 1951.1 In 1949 the couple retained a lawyer to prepare mutual wills leaving their respective properties to each other.2 By mistake during the execution, Hellen signed the will prepared for Vasil and Vasil signed the will prepared for Hellen, with both instruments signed at the end in the presence of the lawyer and his secretary Dorothy Zinkham.3
The document offered for probate as Vasil Pavlinko's will began with the declaration "I, Hellen Pavlinko" and provided that the entire residuary estate would go to "my husband, Vasil Pavlinko" absolutely, with contingent gifts to Mike Pavlinko and Maria Gerber if Vasil predeceases the testator and the remainder to Elias Martin, Hellen's brother.4 The writing signed by Hellen was kept but never offered for probate as her will.5 Elias Martin, the named residuary legatee and brother of Hellen, presented the document signed by Vasil for probate as Vasil's will.6
The register of wills refused to probate the writing.7 After a hearing and argument, the orphans' court of Allegheny County affirmed the register's refusal.8
Whether the writing signed by Vasil Pavlinko but reciting that it was the will of Hellen Pavlinko could be probated as the will of Vasil Pavlinko?9
Under the Wills Act of 1947 §2, every will shall be in writing and shall be signed by the testator at the end thereof.10 A court may not rewrite a will by substituting names or altering its unambiguous language to conform to the testator's presumed intent. If the document as written is insensible when treated as the testator's will, it is a nullity.11
No. The document offered for probate recites that it is the will of Hellen Pavlinko and gives the entire residuary estate to "my husband, Vasil Pavlinko" absolutely, with contingent gifts only if Vasil predeceases the testator.12 Vasil signed this document by mistake, but the court cannot substitute the name "Vasil Pavlinko" for "Hellen Pavlinko" or change "my husband" to "my wife" throughout the instrument.13 Applied to the established facts, the writing signed by Vasil is unambiguous on its face and constitutes a meaningless nullity as his will under the strict requirements of the Wills Act.14
The writing signed by Vasil Pavlinko cannot be probated as his will.15
Related opinions on this issue
Justice Musmanno dissented.16 He contended that the Pavlinkos clearly intended to leave their property to Elias Martin, as shown by the documents and the attorney's testimony.17 The mistake was an innocent and simple one that the law should correct to effectuate the testator's intent.18
The majority's reliance on Alter's Appeal was misplaced because no signature substitution was sought in this case.19 The residuary clause stands on its own and serves as a catch-all for property ineffectually disposed of by other provisions.20 He would probate the paper signed by Vasil Pavlinko.21