McCormick v. McCormick , 194 Pa. 107 ( 1899 )

Opinion by

Mr. Justice Mitchell,

This is an issue devisavit vel non on a paper purporting to be the will of Joseph S. McCormick, wholly in the handwriting of a third person, including the testator’s name, but claimed to have been written in testator’s presence and at his dictation, and signed by the witness for him at his request, he being too weak and nervous to sign it himself, but touching the pen while his name was written.

On the issues directed by the orphans’ court the jury found specifically first, that there was no undue influence, fraud or imposition used to procure the execution of the paper; secondly, that at the time of the signing-of the said paper the testator was possessed of testamentary capacity, and thirdly, that the said paper was the act of the decedent. This disposed of the whole case in favor of the plaintiffs.

The contest turned almost wholly on the credibility of the witnesses. ’ Buntin, who wrote the paper, testified positively to the act of the decedent in calling him, dictating what he should say, and directing him to sign decedent’s name while the latter touched the pen. Beers, the other witness who claimed to have been present, corroborated him. On the other hand, there were some discrepancies, if not contradictions, in their testimony, and some subsequent conduct of Buntin in regard to the paper, suspicious, difficult of explanation consistent with his story, and giving a basis for the contention of the defendants that the paper was fraudulently gotten up after the decedent’s death, and sustained by perjury. There was also a considerable amount of testimony on the part of defendants going to show a condition of illness on the part of the decedent at the time of the alleged transaction, that rendered him incapable of intelligently doing the acts testified to. It is not necessary to go into further detail. A verdict either way could not be said to be without evidence to support it, and the real contest, as already said, was one of the credibility of the witnesses. This the jury passed upon.

All the assignments of error are to the charge, and especially to the mode of presentation of the case to the jury. The charge, it must be admitted, comes in more than one place dangerously close to the line of trespass on the jury’s province. But there was no erroneous statement of the law, no suppression or distortion of the evidence, and the expressions complained of, though showing very strongly the judge’s opinion on the merits of the case, do not impose that opinion as binding on the jury. It would serve no useful purpose to go over them in detail. They are all open to the objection of approaching the danger line, but are all nevertheless within the limit permitted. It was a case of the class where the judge sits as a chancellor, and must be allowed a very large discretion in his control of the findings. We cannot say that his privilege in this respect was carried quite to the point of error.

Judgment affirmed.