229 Pa. 71 | Pa. | 1910
Opinion by
The register of wills refused an issue devisavit vel non to try the validity of the will of John L. McNitt, deceased, and the orphans’ court sustained the decision. The appellants contend that the court below erred in refusing to submit to a jury (1) the question of the testamentary capacity of the testator; (2) the question of the alleged undue influence over the testator of one J. H. Taylor, the husband of the appellee, the sole devisee under the will. '
Lizzie Taylor, to whom the testator left his estate amounting to $11,334.87, is the daughter of one of his deceased brothers, and the appellants are four children
Considering all the circumstances the will in question was a natural one; but the point is, Was there error in not submitting the questions involved to a jury? We have gone over the record with care, and we cannot say that the court below was wrong in refusing an issue. The testimony all shows that the testator was in a physically enfeebled state at the time of the making of the will, and there is certain evidence which standing alone would justify a finding that his mind was in a consequent enfeebl ? condition at times during the day of the execution of the will; but taking the testimony as a whole we cannot say that the weight of the evidence was sufficient to sustain the contention of the appellants as to the lack of testamentary capacity when the will was signed. “Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative must be established not in a doubtful but in a positive manner:” Grubbs v. McDonald, 91 Pa. 236. “The test of capacity is, that the testator’s mind and memory were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will. Weakness alone will not invalidate
Undue influence to avoid a will must be of a kind that subjugates the mind of the testator to that of the person seeking to control it, so as to destroy the free agency of the testator at the time the will is made: Wilson v. Mitchell, 101 Pa. 495; Herster v. Herster, 122 Pa. 239; Caughey v. Bridenbaugh, 208 Pa. 414. On this branch of the case, it is enough to say that the testimony is wholly
The assignments of error are overruled, and the order of the orphans’ court refusing an issue is affirmed at the cost of the appellants.