225 Pa. 314 | Pa. | 1909
Opinion by
This appeal is from an order refusing an issue devisavit vel non asked for on the grounds of undue influence and of want of testamentary capacity. Of undue influence there was no evidence whatever, and the testimony would not have justified the court in sustaining a verdict setting aside the will because of want of testamentary capacity. The testator had been engaged in business in different places for a number of years. In the latter part of 1904 he withdrew from business because of impaired health and in February, 1905, he went to the family home in Carlisle, Pa., where he lived with his sisters until his death, which occurred on May 5, following. His will was executed on April 7. He had no property except policies of insurance on his life for $10,000. He had been divorced from his wife several years before, and she had remarried and
There was nothing in the will itself that was unnatural or that suggests that it was the product of an abnormal mind. Men whom the testator met frequently on the streets, who called upon him and upon whom he called, the witnesses to the will and the two physicians who were attending him at the time testified that he was fully capable of transacting business. No doubt upon the subject appears to have occurred to any of them. His regular physician testified that, while he was physically weak, “ He had perfect use of his reasoning faculties. So far as his mentality was concerned, he was perfectly normal. Was not anything to attract my attention any other way.” Of this testimony there was no contradiction. His physicians differed as to the cause of his death; one thought it due to paresis and one to a brain tumor.
The contestant called no witness who had seen the testator within six months of his death. Some of her witnesses, who had been associated with him before his withdrawal from business, testified that at times he had been nervous, forgetful and
The question before the orphans’ court was whether upon all the testimony produced by the parties there was such a dispute as should be submitted to a jury. The test is whether upon all the testimony a verdict against the validity of the will should be allowed to stand: Knauss’ App., 114 Pa. 10. To that test in this case there can be only one answer, unless we give to the testimony of experts as to what in their opinion would happen in the future greater weight than to the clear, positive and uncontradicted testimony of disinterested witnesses as to what did actually happen.
The order of the court refusing an issue is affirmed.