Conway's Estate

Citations

• 257 Pa. 314
• 101 A. 652
• 1917 Pa. LEXIS 732

Syllabus

<p>Wills — Fraud—Undue influence — Testamentary capacity — Evidence — Insufficiency—Issue devisavit vel non — Refusal.</p> <p>1. An issue devisavit vel non is a matter of right where the existence of a substantial dispute upon a material question of fact is demonstrated by competent evidence; when upon a review of all the proofs a verdict against the will could be properly sustained by a trial judge, the controversy must be submitted to a jury, even though the judge should feel that were he sitting as a juror he would not draw the inferences or reach the conclusions contended for by contestants, but if the testimony is such that the judge would feel constrained to set aside a verdict against the will, as contrary to the manifest weight of the evidence, it cannot be said that a substantial dispute has arisen, and in such case the issue should be refused.</p> <p>2. A petition for an issue devisavit vel non alleged that fraud had been practiced upon testator by substituting the paper offered for probate for another which had been drawn- for him as his will, that he lacked testamentary capacity, and 'that undue influence had been exercised over him. The evidence of fraud was insufficient to warrant a finding that fraud had been practiced upon testator. Ten or more witnesses called by proponent had had business dealings with him and many of them had known him for years; after stating what they knew of him they expressed the opinion that he had testamentary, capacity. There was no evidence that decedent’s mental faculties were impaired, and the only evidence of undue influence was that there was an opportunity for the exercise thereof. Held, the court did not err in refusing the issue.</p>