Estate of Harvey

181 Pa. 207 | Pa. | 1897

Opinion by

Mr. Chief Justice Stebbett,

This appeal is from the decree refusing to direct an issue devisavit vel non, for the purpose of determining:

“ First: Whether the testatrix, Mary Hgrvey, was of sound and disposing mind, memory and understanding at the time of the execution of the will in question; ” and

“ Second: Whether said will was not procured by undue influence.”

In the court below, the really pertinent inquiry was whether, upon the testimony of the respective parties, a serious dispute had arisen as to either of said questions, — such a dispute as should have been submitted to and passed upon by a jury. In rightly determining such questions there is perhaps no safer or more reliable test than this; if the testimony is such that, after a fair and impartial trial resulting in a verdict against the proponents of a will, the trial judge, — upon a careful review of all the testimony, — would feel constrained to set aside the verdict, as contrary to the manifest weight of the evidence, it cannot be said that a dispute, in the meaning of the act, has arisen. On the other hand, if the state of the evidence is such that he would not feel constrained to set aside the verdict, the dispute should be considered substantial, and an issue should be directed: Knauss’s Appeal, 114 Pa. 10, 20; Herster v. Herster, 122 Pa. 239.

After a painstaking review of the nearly three hundred printed pages of testimony taken on the hearing, the learned president of the orphans’ court in a clear and convincing opinion, came to the conclusion that, according to the test aforesaid, the evidence was insufficient to justify him in directing an issue as to either of said questions; and a careful consideration of the testimony, in connection with the specifications of error, has convinced us that there is no substantial error in his conclusion.

As to the question of testamentary capacity, the testimony in favor of the proponents of the will is not only distinct and positive, but practically unimpeached. On the question of undue influence, there is some testimony, tending to show facts and circumstances which, in themselves, might be calculated to excite suspicion, but when viewed in the light of the undisputed evidence, these circumstances, etc., furnish no reasonable ground even for suspicion that undue influence of any kind was operative in the making or execution of the will.

A detailed consideration of the testimony is wholly unnecessary. Nor is there anything in either of the specifications of error that requires extended comment. We are all of opinion that the issue was rightly refused, and that the decree should not be disturbed.

Decree affirmed and appeal dismissed at appellant’s costs.