116 Pa. 612 | Pa. | 1887
Opinion,
In this case an issue was granted, to determine a question of undue influence exerted upon the mind of a testator in the execution of a testamentary writing. The issue was granted by the Orphans’ Court, after a full hearing upon the matters of fact alleged against the will, and a contest upon the sufficiency of the facts in evidence to justify the granting of an issue. It must be assumed that in granting the issue the learned court was of opinion that there was evidence enough to carry the case to a jury, and to require a verdict to determine upon the disputed matter of fact in question. When the issue thus granted was tried in the Common Pleas the learned judge who tried the cause, who was not the same judge who granted the issue, was of opinion that there was not sufficient evidence to warrant a verdict against the will, and he withdrew the case from the jury by a binding instruction to return a verdict in favor of the will.
The question of undue influence exerted upon the execution of a will is a question of pure fact. Its disposition'properly rests with the jury alone. Even if the trial judge should feel that were he sitting as a juror he could not regard the evidence as sufficient to induce him to find a verdict against the will, that is not enough to justify him in taking the case entirely from the jury. He must be prepared to go further than that, before he can deprive the jury of its proper control of the dispute. This court has indicated in a number of decisions a rule by which to determine the granting of an issue, and it is equally applicable in determining whether a cause of this kind ought to be withdrawn from the jury. It is thus expressed in a recent case: “ If the testimony is such that after a fair and impartial trial resulting in a verdict against the proponents of the alleged will, the trial judge, after 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 within
It would not be proper to discuss the testimonj'- in detail, as we could not do so without giving a possible bias to the jury, and they ought to be entirely free to consider and determine the facts upon their own judgment. It is perhaps well to say that undue influence may be exercised secretly as well as openly, and this is especially possible where a confidential relation exists between the principal devisee and the testator and they dwell together in the same house. In such cases' it is not eas3r to make out an allegation of undue influence by proof which is direct or positive, nor is it necessary to do so. The effects of its exertion may be very visible, but as these may also be consistent with a perfectly free will, much caution must be exercised by the jury in considering such an aspect of the case. Rash conclusions must not be drawn simply because of a large disproportion of the estate being given to one to tbe exclusion of others; and the evidence of the exertion of undue influence must be of a satisfactory and convincing character, whether it be direct or circumstantial. With these reflections we dismiss this part of the case, and sustain the first, second, third, fourth and. eighteenth assignments of error.
We sustain the sixth assignment because the question asked' had some tendency to show the relations between the testator and his son, the principal devisee, and might possibly tend to illustrate the power of tbe son over the father. We sustain
Judgment reversed and new venire awarded.
