Brink v. Brady

Citations

• 224 Pa. 116
• 73 A. 215
• 1909 Pa. LEXIS 738

Syllabus

<p>Will — Probate—Issue devisavit vel non — Fraud.</p> <p>1. In issues devisavit vel non the sufficiency of the evidence is always for the court, and it is error to submit the question to the jury if the evidence be insufficient. .</p> <p>2. On the trial of an issue devisavit vel non where the only question was whether the alleged will was procured by trick, deception, fraud or duress, the proponent produced as a witness, the counsel who prepared the will, at the request of testator, and who retained it in his custody after its execution, also three other persons who identified the signatures of the subscribing witnesses, also three persons who identified the signature of the testator, and one person not a witness to the will, but who was present in the room when* it was executed, and saw the testator sign his name and the two subscribing witnesses attest the same. The will in the handwriting of the scrivener was also produced. None of these facts were controverted, but it was sought to be shown by the contestant that the testator had been ill for several weeks before the date of the execution, and that this illness had continued for a period so long that he could not have been in the office of the scrivener when the will was prepared. No witness, however, could fix the exact date when the testator was able to leave his house, or when he did so. Held, that the evidence was insufficient to-sustain a verdict against the will.</p>