Masciantonio Will , 392 Pa. 362 ( 1958 )

Opinion by

Me. Justice Benjamin B. Jones,

Decedent, aged 69 years and a resident of Consho-hocken, Pa., died July 21st, 1955 in the Sacred Heart Hospital in Norristown, Pa. His immediate survivors —all residents of Italy — were Ms widow, Rosa Masci-antonio, and nine nephews and nieces.

On August 2, 1955, a written instrument purporting to be the decedent’s last will was admitted to probate by the Register of Wills of Montgomery County and letters testamentary were issued to the executor named therein, the Montgomery Norristown Bank and Trust Company. From the decree of probate the decedent’s widow appealed. After a hearing¹ the Orphans’ Court of Montgomery County sustained the Register’s action and these appeals were taken.

The decedent came to the United States from Italy in 1905, leaving his wife in that country.² Although decedent and his wife never lived together again the record reveals that decedent over many years, with the exception of the war years, forwarded money from time to time to his wife who lived on a farm which decedent owned in Italy. The decedent’s original intention may have been to return to Italy, but, after World War I, he continually hoped to bring his wife to the United States, an expectation never realized because of his failure to become a U. S. citizen.

Decedent always resided in Conshohocken, for about 24 years with the D’Allesandro family — the first Mrs. D’Allesandro having been a relative — and the rest of the time alone. A long time employee of the Allen Wood Steel Company, the record portrays decedent as a frugal, exceedingly industrious and somewhat retiring person. Approximately three weeks prior to July 10th, 1955 he became ill. On July 10th, 1955 he was admitted to the hospital where he remained until his death on July 21st, 1955. The cause of death was carcinoma of the liver attended with hepatitis, inflammation of the liver and jaundice.

The will, the validity of which is attacked, appears on a typewritten instrument, dated July 20th, 1955, executed by decedent by mark and bearing the signatures of two subscribing witnesses, the scrivener and the sole residuary legatee. Proponents claim that this will was executed at approximately 4 P.M. on July 20th, 1955 — about seventeen (17) hours prior to decedent’s death.

The alleged will contains: (1) a direction that the decedent’s debts and funeral expenses be paid; (2) specific devises of four separate pieces of realty, one to each of four named persons described as “nephews” and “nieces”;³ (3) a bequest of $3,000 to a Consho-hocken church; (4) a gift of the entire residuary estate to one Rose Benedict;⁴ (5) a direction that each devisee and legatee pay his or her proportionate share of the taxes; (6) a direction that, even though the decedent gave under the will nothing to his wife, yet, in the event that the wife should successfully assert a right against the estate,⁵ the shares of each legatee and devisee should be proportionately diminished; (7) the appointment of the Montgomery Norristown Bank and Trust Company as executor.

A three-fold attack is made on this alleged will: that at the time of its execution decedent lacked testamentary capacity, that the will was procured by undue influence and fraud, and that it was not legally executed in that one of the two witnesses to decedent’s signature by mark, the sole residuary legatee, was incompetent to act as such witness.

In reviewing this decree of the court below we are mindful that the findings of an Orphans’ Court judge, who heard the testimony without a jury, are entitled to the weight of a jury’s verdict and are controlling upon us and that its decree should not be reversed unless it appears that the court has abused its discretion: Williams v. McCarroll, 374 Pa. 281, 298, 97 A. 2d 14. See also: Kerr v. O’Donovan, 389 Pa. 614, 629, 134 A. 2d 213; Farmer Will, 385 Pa. 486, 487, 123 A. 2d 630. However, we are also mindful that if it appears from a review of the record that there is no evidence to support the court’s findings or that there is a capricious disbelief of evidence the court’s findings may be set aside: Mohler’s Estate, 343 Pa. 299, 305, 22 A. 2d 680. The test is not whether we, the appellate court, would have reached the same result had we been acting as the hearing judge who saw and heard the witness, “ ‘but rather whether a judicial mind, on due consideration of the evidence, as a whole, could reasonably have reached the conclusion of the chancellor’ ”: Shuey et al., Exrs. v. Shuey et el., 340 Pa. 27, 32, 16 A. 2d 4.

The determination of the propriety of the instant decree necessitates our review of the entire record.

Proponents offered in evidence the record of probate and then rested. Upon contestant was then imposed the “duty to come forward with evidence”: Kerr v. O’Donovan, 389 Pa. 614, 623, supra, and cases therein cited. In performance of this duty the contestant produced twelve witnesses :⁶ decedent’s two attending physicians, two nurses, Ms widow, three relatives and four Mends.

• Contestant’s evidence may be thus summarized:

(1) Margaret D’Allesandro — stepmother of the four specific devisees — had known decedent for approximately 20 years, during 15 years of which he lived in the D’Allesandro home while she lived there. At decedent’s request,, on or about July 10th, 1955 she called Dr. Eappaport, arranged for decedent’s hospitalization and drove decedent to the hospital. Prior to decedent’s departure for the hospital he gave her approximately $400 for the payment of taxes on his realty, at least part of which was applied to that purpose. During the first four or five days of decedent’s hospitalization, she conversed with him, either by actual visitation to him or on the telephone, although after July 15th he did not answer the telephone. During her last telephone conversation with decedent he complained he was being “pestered” about making a will. On July 19th she remained at the hospital from 1:30 P.M. to 6 P.M.; at various times that afternoon Eose Bene-diet, Michael Masciantonio (Rose Benedict’s father), Peter Masciantonio and Joseph Gennaro arrived. They all left the hospital together. While all were in the hospital Dr. Carfagno informed them that decedent was then critically ill. While they were conversing in the hospital corridor a visiting priest came by; in their presence Rose Benedict spoke to the priest, stating that the decedent did not have á will, and the priest said that “someone ought to get it made”. The next day — July 20th — when she visited decedent he was “kind of sleeping steadily”. Prior to his departure for the hospital decedent told her that he was going to straighten out his affairs ánd that “his wife won’t be poor anymore”. This witness testified that Rose Benedict, residuary legatee, never visited decedent at his home.

(2) Peter Masciantonio — decedent’s first cousin, once removed, and a fellow worker — when he visited decedent on July 13th, found his condition seemingly good, although he was jaundiced. On July 19th decedent was asleep and the witness was unable to secure any response from him, except a shake of the head. He described the difficult time he had in putting pajamas on decedent on that date because of the latter’s inability to cooperate. He corroborated Mrs. D’Allesandro’s testimony concerning the conversation in the hospital corridor between the priest and Rose Benedict. Prom his observations .on July 19th decedent was then unable to make a will. He denied that Attorney DiGiacomo, the scrivener, was at the hospital at 5:45 P.M. on July 19th.

(3) Lanera Ambirg — decedent’s friend of almost 40 years — stated that, in April or May, 1955, when decedent was contemplating the purchase of another piece of realty, she asked him what would happen if he died and decedent'replied “I guess my wife take it”.

(4) Joseph Gennaro — decedent’s friend and neighbor — visited the decedent on July 19th and found him mumbling and too ill for any conversation.

(5) Marion Manfredi — nurse on duty from 7 A.M. to 3 P.M. — testified that decedent was fed intravenously the last few days of his life, that on July 18th he was lethargic and on July 19th and 20th he was “dozing at long intervals”.

(6) Caroline Monastero — nurse on duty from 11 P.M. to 7 A.M. — stated that while she was on duty decedent was apparently always sleeping.

Contestant’s principal testimony came from Dr. Rappoport, the attending physician, and Dr. Carfagno, a consulting specialist in internal medicine, both admittedly qualified. Dr. Eappaport — to whom decedent was then unknown — in response to a call had decedent admitted to the hospital on July 10th, 1955. Because of decedent’s physical condition, the doctor had great difficulty in securing from him a complete history. He did learn, however, that decedent, although he had continued to work, had been feeling quite ill for three weeks. Even though the decedent was jaundiced and apparently very ill, it was the opinion of this doctor that then decedent could recognize people and knew the extent of his property. From the date of his admission on July 10th until the date of his death on July 21st Dr. Eappaport saw decedent at least once, sometimes twice, daily. On July 17th Dr. Eappaport called in Dr. Carfagno for consultation. On the date of the alleged will — July 20th — he visited the decedent on two occasions, at 11 A.M. and 5 P.M. — five hours before and one hour subsequent to the time the will allegedly was made. On both occasions decedent was stu-porous,⁷ dying, too weak to talk and, on the occasion of the second visit, decedent was semi-comatose, but not completely unconscious. Dr. Rappaport stated that the decedent could not have had a lucid interval and did not have the mental capacity to express himself. From the observations made by Dr. Rappaport of the decedent on these two occasions on July 20th, 1955 he stated that the decedent did not have the mind, the memory nor the understanding to be able to dispose of his property by will and was “absolutely not in a condition to give such information”. Dr. Rappa-port, from his observations, further stated that decedent could not have made a will on July 17th, July 18th, or July 19th.

Dr. Carfagno visited decedent on July 20th between 1:30 P.M. and 2:00 P.M. — approximately two hours prior to the time the will is alleged to have been made. From his observations of decedent the doctor stated that on this occasion the decedent was either lethargic or stuporous, probably the latter, and was not able, physically or mentally, to make a will. Based upon his observations, Dr. Carfagno testified that it was “possible, but not likely” that decedent could have been conscious prior to his visit, that it was “possible, but not very probable” that decedent could have recognized visitors at 6 P.M. that day and that decedent was not “lucid” when he saw him on July 20th.

When contestant rested, the proponents produced ten witnesses, all of whom, with possibly one exception,⁸ had an interest in the outcome of this litigation.

(1) Peter D’Allesandro — decedent’s grandnephew and a specific devisee — until his marriage in 1942 lived in the same house with the decedent.⁹ Within two years of Ms death decedent toM him that upon his death he would leave him the property situated at 6th and Maple Streets, Conshohocken. When he visited decedent at approximately 7:15 P.M. on July 20th Bose Benedict and another woman were present and, although decedent “didn’t look too good”, he was sitting up in bed. Although this witness testified to certain responsive answers made by decedent to him, yet he continually modified and qualified such testimony by saying “I didn’t know what he was saying”. That evening, as he had done on several other occasions, he shaved the decedent. Upon cross-examination he admitted that, even though he was so described in the will, he was never known as “Peter D’Allesandro, Jr.”

(2) Eva D’Allesandro — a specific devisee’s wife— stated' that decedent visited their home every Friday and some years ago — 1946, 1947 or 1948 — told her that she and her husband would have a store in the property later given to her husband by this will. When she visited decedent on July 10th, in company with her husband, he seemed well, even to the extent, during the course of a discussion, of urging her husband to buy her an electric range. In company with her mother-in-law, after decedent’s death, she searched decedent’s living quarters and there saw a savings bond issued in Marie D’Allesandro’s name. On her husband’s return from the hospital on July 20th he described the decedent as “kind of . . . like dopey”.

(3) Ann M. Bernardini (the former Ann D’Allesan-dro) — a specific devisee — visited decedent on July 12th and on July 14th talked with him on the telephone, and on both occasions he seemed rational.

(4) Mary E. Donato (the former Marie D’Allesan-dro — a specific devisee — stated that on a visit to decedent on July 12th he appeared rational.

(5) Nicholas D’Allesandro — a specific devisee — on a visit on July 19th found that, while decedent did not feel well, he was able to recognize him, appeared rational and discussed with him a recent visit made to decedent by a fellow-worker.

(6) Rose Benedict — first cousin, once removed and sole residuary legatee — testified that over a three-year¹⁰ period she drove her father to and from work at the Allan Wood Company. During this time period approximately once a week she would pick up decedent and take him to work and almost daily would drive him home with her father. On July 19th, on the occasion óf a visit to the hospital, she had a talk with Peter Masciantonio and, while talking to him in the hospital corridor, a visiting priest came along. She testified that it was Peter Masciantonio, not herself, who suggested to the priest that decedent, then critically ill, had no will. The priest then went into decedent’s room and told him he should get a lawyer and make a will. Later the decedent beckoned to her and asked her to get a lawyer for him. Mrs. Benedict said that she left the hospital at 4 P.M., called Attorney DiGiacomo at approximately 4:30 P.M., but did not reach him until 5 P.M. She then accompanied Attorney DiGiacomo, her father and Marta Giondonato to the hospital, arriving there at approximately 5:45 P.M., and she remained in the decedent’s room while the attorney and decedent discussed a will and she saw the attorney writing on a yellow piece of paper. After the attorney had finished she saw the decedent make his mark on the paper, then she signed her name as a witness under the attorney’s name. This handwritten will (not the one presently in issue) was produced and the witness identified her signature thereon. When these events took place the decedent recognized and talked with his visitors. On July 20th, between 3:30 and 4 P.M., she accompanied Attorney DiGiacomo to the hospital, heard him read to decedent the provisions of the typewritten will and, after she saw the decedent execute it by mark, she signed that will as a witness.

At the outset of her testimony she stated that she visited decedent daily while he was in the hospital, then later said she did not visit him between July 12th and July 19th, and again later stated she was confused about the dates but knew there was not a seven day interval between her visits. On July 19th decedent was “pretty sick”, “dozing”, and the witness “didn’t bother talking to him”; on that date her father and Peter Masciantonio took decedent to the bathroom. When Attorney DiGiacomo and the other persons entered decedent’s room on July 19th she introduced the attorney and the decedent recalled that the attorney’s brother had once worked with him. While there was some Italian spoken, the conversation between Attorney DiGiacomo and decedent on July 19th was mostly in English, but on July 20th the will was read to decedent only in English. It was the decedent’s custom to sign papers by mark.

(■7) Marta (Hondonato — a recent Italian immigrant — spóke and understood only the Italian language. This witness was present on July 19th in decedent’s hospital room when the decedent and Attorney DiGiacomo discussed the terms of the will. This witness, when ashed whether most of the conversation between the attorney and the decedent concerning the will was in English or Italian, testified: “It was in Italian. Otherwise I would not have been able to understand.”¹¹ The witness related that she heard decedent tell the attorney that he had four houses and wanted to give one house to each of four nieces and nephews, that he wanted Rose Benedict to take care of his funeral, that whatever was left was to go to Rose Benedict and that he was leaving his insurance to his wife in Italy. Having seen the decedent place his mark on the will, she, at decedent’s request, signed her name as a witness on the instrument. On July 20th she visited the decedent at the hospital but was not present when the typewritten will was executed.

(8) F. G. Hutchinson, Vice-President of the executor bank, stated that decedent’s realty was valued at $42,250.00 and his personalty, exclusive of bonds, at $14,250.97. In decedent’s home were found, Series E. bonds in the amount of $6500; 1 $100 bond, issued August 1942, in decedent’s name payable on death to “Annie D’Allesandro”; and 240 $25 bonds, issued between October 1942 and July 1955, in decedent’s name payable on death to “Marie D’Allesandro”. On August 10, 1955 he had a conversation with Eva D’Allesandro, a witness for contestant, wherein she stated that, prior to his departure for the hospital, decedent had given her approximately $400 to pay taxes and other expenses.

(9) Bernard DiGiacomo¹² — a member of the bar— first talked with Eose Benedict on July 19th at approximately 5 P.M. and then he accompanied her, her father and Mrs. Giondonato to the hospital. When introduced to decedent — who appeared “very sallow” and like a “man who was ill” — he shook hands, noting the strength in decedent’s hand, and decedent spoke to him concerning his brother, with whom decedent had worked. The responses which decedent made to the questions addressed to him by the witness were very clear and he “Understood” the “business”. The conversation between the parties was practically entirely in English. After receiving instructions from the decedent concerning the disposition of his property he wrote a will in longhand which decedent signed by mark and which was witnessed by himself, Eose Benedict and Mrs. Giondonato, in that order. He told the decedent he would prepare a neater typewritten will which he would bring back for execution. On July 20th — accompanied by Eose Benedict — he returned to the hospital at approximately 3:45 P.M. He and decedent again shook hands and he read each paragraph of the will to decedent who then signed it by mark and it was witnessed by himself and Eose Benedict. It was his opinion that decedent then knew what he was doing and had the testamentary capacity to make a will both on July 19th. and July 20th.¹³ This witness explained that, after an extensive investigation, he had learned the identity of the priest who was present at the hospital on July 19th, a Father Walsh, but that since the priest remembered nothing of the incident he was not called as a witness. The witness further explained that Rose Benedict’s father, Michael Mascian-tonio, who was present on both July 19th and July 20th, was not called as a witness, although he was physically able to appear, because it would be distasteful to him.

In rebuttal both contestant and proponents produced testimony. The contestant produced: (1) Paul Moser, timekeeping supervisor at the plant where both decedent and Michael Masciantonio were employed, to show by the time cards the times of arrival and departure of both men for the purpose of contradiction of that portion of Rose Benedict’s testimony that she drove decedent and her father to and from work; (2) Peter Masciantonio, to show that he was with Rose Benedict when she left the hospital on July 19th at 6 P.M. for the purpose of contradiction of her testimony that she left the hospital at 4 P.M. and further to show that, after Nicholas D’Allesandro had testified in court, he stated in the courthouse corridor “he didn’t think it was right the will was made out”; (3) Adamo DiGuglielmo, to show that decedent never visited the Benedict home for the purpose of contradiction of Rose Benedict and to relate a conversation which, allegedly, took place in Attorney DiGiacomo’s office on July 22nd wherein the latter, supposedly said, referring to the will, “If I wanted to I could put myself in and nobody would know what was going on in there”. The proponents recalled Attorney DiGiaeomo to show that, although DiGuglielmo was in his office on July 23rd or July 24th, he never made any such statement to DiGuglielmo.¹⁴

The court below concluded, very properly, that there was no evidence of undue influence or fraud. With that conclusion we are in agreement. However, the court’s conclusion that contestant failed to sustain her burden of proof of lack of testamentary capacity raises a very serious question.

A careful examination of the opinion of the court below and the reasons which it assigns for its conclusion that the record is without clear and strong evidence of testamentary incapacity indicates that the controlling and decisive factor in its conclusion was that “the evidence arrayed by the contestant in the face of the testimony of the subscribing witnesses consists primarily of the opinion evidence, of two physicians. The weight to be given to opinion evidence, standing against testimony of witnesses as to facts, has been given detailed consideration by our appellate courts.” (Emphasis supplied).

Upon the court below rested the duty of balancing and weighing the evidence presented by both sides. Under such circumstances certain basic principles necessarily must guide a court: (1) tbe burden is upon tbe contestant to overcome tbe presumption of testamentary capacity; (2) to sustain this burden tbe evidence has to be strong, clear and compelling; (3) tbe testimony of the scrivener, the subscribing witnesses and the attending physicians is entitled to great weight; (4) it is the testator’s testamentary capacity at the time the will was executed which controls; (5) the credibility of the witnesses must be determined on the basis of various factors including, in large measure, their interest or lack of interest in the outcome of the litigation.

An examination of the court’s written opinion — the sole basis upon which we can determine the reasons which led to its conclusions — reveals that the court considered the testimony of the two subscribing witnesses — Attorney DiGiacomo and Rose Benedict — not only as of great weight but as absolutely controlling. The court treated their testimony as the only factual, as opposed to opinion, evidence as to decedent’s testamentary capacity at the time of the execution of the will.

Was the testimony of these subscribing witnesses factual or opinion? Both witnesses testified to that which they personally observed of the decedent — what he said, how he said it, what he did and how he did it —and from such observations they arrived at a conclusion that decedent was mentally capable of executing a will. To label such testimony as entirely factual was clearly erroneous because their expressed conclusion as to testamentary capacity was simply an opinion arrived at after an observation of facts, i.e. their sensory impression of decedent’s words and actions.¹⁵ Their testimony was neither entirely factual nor entirely opinion hut mixed opinion and factual.

In considering the reliability of such testimony certain factors had to be taken into consideration: what was the opportunity for observation by such witnesses, was there any reason for unfaithfully recording their observations and was there any corroboration of these witnesses? The established opportunities for observation by both witnesses of decedent’s actions were two visits to the hospital, a 30-35 minute period on July 19th and a 15-20 minute period on July 20th.¹⁶ The court sought to discredit Dr. Garfagno’s testimony upon the ground that he only saw decedent on two occasions; was not his opportunity for observation equal to that afforded to the scrivener who saw decedent on only two occasions? Both the subscribing witnesses were interested: Rose Benedict as the sole residuary legatee was deeply interested in upholding the validity of the will and Attorney DiGiacomo, whose handiwork was under attack, was likewise a party in interest.¹⁷ While the fact of their interest would neither automatically disqualify nor discredit these witnesses yet it was a factor requiring grave consideration in the evaluation of their testimony and the court below never alluded to their possible interest. On July 19th and on July 20th when the handwritten and the typewritten wills, respectively, were drawn, four persons on the first day and two persons on the second day observed the decedent. Of these persons only the subscribing witnesses related that which was said and done on July 20th and only three persons testified as to what took place on July 19th. Michael Masciantonio — the residuary legatee’s father — visited decedent on both days and, even though the record indicates that he was physically able to appear in court, he was not called as a witness. Marta Giondonato, if the testimony of the subscribing witness be believed, was entirely discredited as to that which transpired on July 19th. Thus, the only two persons who were in a position to have corroborated the subscribing witnesses failed to do so.

The court below, treating the subscribing witnesses’ testimony as entirely factual as opposed to opinion, and ignoring the factors of both their interest and lack of corroboration, nevertheless considered their testimony as decisive on the question of testamentary capacity.

On the other hand, the court treated the testimony of the attending physicians as pure opinion evidence and applied to their testimony the rule that opinion evidence is of little weight as against the direct, factual evidence of the scrivener and subscribing witnesses.¹⁸ The record indicates that both physicians were in attendance upon the decedent. Dr. Rappaport had. made daily, and sometimes twice daily, visits over a ten day period for the express purpose of determining both the physical and mental condition of decedent as an aid in his treatment. Dr. Carfagno had made two visits to the decedent for the very same purpose. The testimony of both physicians is corroborated by the hospital records, Michael D’Allesandro, Peter Mascian-tonio, Joseph Genna.ro and, in part, at least, by Marion Manfredi, a nurse. Even Peter D’Allesandro, a witness for the proponents, at least partially corroborated the testimony of the physicians concerning decedent’s condition.¹⁹ The record discloses no basis for any conclusion' that the physicians were anything other than completely disinterested in the outcome of the case.

No reasonable basis exists for distinguishing between the quality of the testimony of the physicians and that of the scrivener and the other subscribing witness. The nature of the testimony of both groups of witnesses is exactly the same, being composed partially of their direct factual observations and partially of conclusions or inferences drawn by the witnesses therefrom. Under such circumstances the lower court erred in concluding that the testimony of either group of witnesses was of a higher quality than that of the other. The general rule as to the inferior quality of opinion evidence, stated above, was never intended to apply to a situation such as herein presented; the lower court’s dogmatic assertion that the rule governed the physicians’ testimony was clearly erroneous.²⁰

The objectionable weakness of opinion testimony arises from the understandable fact that such testimony, by its very nature, necessarily consists essentially of the inferences drawn by the witness from the facts that he has either observed or had related to him; the witness is unable to swear that his inferences are correct but only that in his opinion those inferences are correct. It is this necessary reliance upon the inferences drawn by the witness from the facts that weakens opinion testimony. Where testimony consists only of the narration by the witness of actual observed facts, however, he is able to swear to the truth of those facts and the jury or hearing judge are left to their historic functions as the triers of fact because it then remains for them to draw their own inferences and conclusions from the facts testified to by the witness. Cf: Ray, to use, v. Philadelphia, 344 Pa. 439, 441, 442, 25 A. 2d 145; Kluchinsky Estate, 176 Pa. Superior Ct. 197, 202, 107 A. 2d 446.

The rule erroneously relied upon by the court below finds its most frequent application in two situations. In the first the medical witness has neither seen nor examined the decedent; instead he is asked a hypothetical question, often based upon the very facts in dispute and, in answer to that question, gives his opinion as to the testamentary capacity of an equally hypothetical individual who displays the symptoms stated in the question. Such opinions are quite properly afforded little weight: Conway Will, 366 Pa. 641, 643, 644, supra; DeMaio Will, 363 Pa. 558, 563, supra; Guarantee Trust and Safe Deposit Co. v. Waller, 240 Pa. 575, 584, supra.

In the second type of situation the medical witness testifies concerning observations which he made while examining the decedent some time before or after the execution of the will. We have consistently and correctly held that this more or less learned conjecture concerning the effect that pre-existing or post-existing conditions might have had upon the decedent’s testamentary capacity at a later or prior date is admissible but is entitled to little weight: Williams v. McCarroll, 374 Pa. 281, 293, supra; Conway Will, 366 Pa. 641, 643, supra; DeMaio Will, 363 Pa. 559, 562, 563, supra; Sturgeon Will, 357 Pa. 75, supra; Aggas v. Munnell, 302 Pa. 78, 86, 152 A. 840; Graham’s Estate, 225 Pa. 314, 317, supra. Neither situation is presented under the facts of this case.

It is well recognized that the testamentary capacity of the testator is to be determined by his condition at the very time of execution of the will although evidence of incapacity near the date of execution is admissible as tending to show lack of capacity on that day; Skrtic Will, 379 Pa. 95, 100, 108 A. 2d 750; Williams v. McCarroll, 374 Pa. 281, 293, supra; Higbee Will, 365 Pa. 381, 384, 75 A. 2d 599; Lewis Will, 364 Pa. 225, 231, 72 A. 2d 80. In the instant situation, one physician examined decedent five hours before and one hour after the time of the alleged execution of the will, and another physician examined the decedent two to two and one-half hours prior to the alleged execution of the will, and both witnesses indicated that decedent was then in a state of stupor rapidly approaching semi-unconsciousness, a final and common stage leading to the terminal end of the type of ailment from which decedent suffered. The rule which makes vital testamentary capacity at the time the will was executed was never intended to minimize and depreciate the weight of the testimony of attending physicians as to testator’s condition so close to the time when the will was allegedly executed.

The importance of such testimony was clearly and forcefully recognized by this Court, speaking through Chief Justice Horace Stern, in Lewis Will, 364 Pa. 225, supra, in which we held that the testimony of the decedent’s attending physicians was of prime importance to the determination whether there was a substantial dispute concerning a material matter of fact (the testamentary capacity of the decedent) which would require the award of an issue d.v.n. We there stated (p. 229) : “In view of the number of these witnesses [decedent’s doctor and eight nurses] who testified as to decedent’s unsoundness of mind and inability to malte a will at the time it was executed, together with the fact that they were all disinterested, that the doctor and the nurses, by reason of their professional training, were most competent to observe the condition as to which they testified, and the evidence they gave was clear and unequivocal, it is difficult to see how any testimony could more strongly support a petition for the granting of an issue d.v.n.” It should be noted .that the proponent’s witnesses were herself, the scrivener and a subscribing witness and that the Court, speaking of their testimony, said (p. 231) : “While this testimony is entitled, of course, to careful consideration, it does not overcome the testimony presented by the contestants as to the physical and mental condition of decedent on June 30 at the time she executed the will . . . .” See also: Dugacki Will, 356 Pa. 143, 149, 51 A. 2d 627; Patti’s Estate, 133 Pa. Superior Ct. 81, 91, 1 A. 2d 791.

In further refutation of the trial court’s conclusion it should be noted that in Glesenkamp Will, 378 Pa. 635, 107 A. 2d 731, we afforded great weight to the mixed factual and opinion testimony of a psychiatrist who had actually examined the decedent. This testimony, together with other testimony concerning the decedent’s condition, prompted this Court to state (p. 640) : “Since the testamentary incapacity of decedent was so clearly established we need not discuss the effect of a will drawn by an attorney and witnessed by a physician and a bank officer. Their opinions under the present circumstances, are of slight, if any, value. Certainly their expressed opinions of decedent’s testamentary capacity were contrary to the overwhelming weight of the evidence.”

Despite the statement of the scrivener in the instant case regarding his superior — even supreme — ability to judge testamentary capacity, it is clearly evident from an examination of the record that the two physicians were just as able — from the viewpoint of time, opportunity for observation and experience — to evaluate decedent’s testamentary capacity. In evaluating the testimony of the physicians as against the testimony of the scrivener and other subscribing witness, the court below erroneously applied rules of law which had no application to the situation. While it is the province of the court below, not our province, to weigh the evidence, yet, in so doing, that court must apply rules of law justly applicable to the situation with which it is confronted.

We cannot help but observe from the written opinion of the court below other serious errors which it committed in reaching its conclusion. Despite the fact that all of the witnesses for proponents, with one exception,²¹ had some interest in the outcome of the litigation, no reference whatsoever is made in the written opinion to such a factor. Further, the court discredited Dr. Eappaport’s testimony upon the ground of his definition of the word “execute” as meaning “to dictate or to write himself”,²² stating- that the testimony establishes that “the testator did not speak the language well.” There is no evidence on the record to support a finding of decedent’s inability to speak English well and, on the contrary, both Eose Benedict and Attorney DiGiacomo testified that most of the discussion with decedent on both July 19th and July 20th was in the English language.

Many years ago Chief Justice Tilghman, speaking in Irish v. Smith, 8 S. & R. 573, 574, used language particularly apposite to the present situation: “Great regard is to be paid to the subscribing witnesses, and to the testimony of others who might happen to be present at the time of execution. But to exclude all other testimony would be altogether unreasonable. If no witnesses are admitted, but those present at the execution, and they are base enough to perjure themselves, it will be impossible to set aside a will made by a man of unsound mind. But besides, soundness of mind being but matter of opinion, the subscribing witnesses may be mistaken, though they are men of integrity. If others of equal integrity and understanding had seen the testator an hour before, and an hour after the execution of the will, and were of opinion that he was non compos, in consequence of a disorder not generally subject to intermissions, and supported this opinion, by relating the words and actions of the testator which induced them to think him of unsound mind, it would surely be proper, that the jury should hear those witnesses, in order to form a judgment of their own, as to the state of mind at the moment of execution”. The court below, as appears from its opinion, for practical purposes excluded the attending physicians’ testimony and in this respect it erred.

The fundamental error of the court below was its misapplication of a well-established legal principle— the weight of opinion evidence as against direct evidence — to a situation where the evidence was identical in quality. In reaching this conclusion we do not substitute our judgment for that of the court below. We simply find that in weighing the evidence the court employed the wrong scales.

The contestant raised the further question that the residuary legatee, under the Wills Act, was incompetent to prove execution of a will by mark. Since that question was not raised in the court below it cannot be considered on this appeal.

Decree reversed with direction that the court below review the entire record in a manner consistent with this opinion with special reference to the relative weight to be accorded the testimony of the two physicians who attended the decedent during his last illness or, in the alternative, that the court exercise its discretion by directing a jury’s determination of the issue of testamentary capacity under proper instructions in keeping with this opinion upon a re-trial; costs to abide the event.

1 Both proponents and contestant waived their rights to a trial by jury and the court heard the appeal without a jury.

2 The widow, who came to this country subsequent to decedent’s death, testified that she married decedent in Civatella, Chieti, Italy, in November 1904 and produced their marriage certificate. The parties lived together for nine months before decedent came to this country. A male child, born of this marriage, died when forty (40) days old on March 13, 1906.

3 The devisees were actually not “nephews” or “nieces”, but “grandnephews” and “grandnieces”.

4 Decedent’s first cousin, once removed.

5 The widow, for some unaccountable reason, never elected to take against the will and allowed the time for such election to pass.

6 The testimony of four of these witnesses, Rosa Masciantonio, Francesco DiLullo, Amato D’Amico and Adamo DiGuglielmo, was for the most part irrelevant on the issues of testamentary incapacity and undue influence. Rosa Masciantonio testified concerning the relationship between decedent and herself over many years, the receipt of money from him and the fact that she received the proceeds of a life insurance policy- — $3,000—on her husband’s life in which policy she was the named beneficiary. DiLullo testified that at decedent’s death he had $1624.59 on deposit in the Bank of Rome and owned realty in Italy valued at $3,600. D’Amico verified the fact that decedent sent money to his wife and tried to get her into this country. DiGuglielmo on a visit to Italy in 1934 transmitted money from decedent to his wife and, on several occasions, went to a Philadelphia bank with decedent for the purpose of sending funds to decedent’s wife.

7 The hospital records corroborate the doctor’s testimony that decedent was stuporous.

8 Marta Giondonato.

9 This was likewise true of Ann M. Bernardini, Mary E. Donato and Nicholas D’Allesandro, three of proponents’ witnesses. As the court below stated: “For at least a twenty-four year period prior to 1942 decedent lived with a niece, Antoinette D’Allesandro. and her family, consisting of her husband and four children”. After the death of Antoinette D’Allesandro in 1937 decedent continued to live with the husband and children until the husband’s remarriage in 1942 to Margaret D’Allesandro, one of contestant’s witnesses, at which time the four children withdrew from the household.

10 Cf: the statement of this witness contained in a letter sent to contestant some months after decedent’s death: “It is about a year since I have had a license to drive a car.”

11 This testimony is in direct variance with the testimony of Attorney DiGiaeomo and Rose Benedict. Attorney DiGiaeomo testified: “I heard Mrs. Giondonato here make a statement on the stand that he talked mostly in Italian. Well, that’s not true”. Rose Benedict testified that the attorney talked to the decedent in English. If these two witnesses are correct, the testimony of Mrs. Giondonato as to what occurred at this time would seem worthless.

12 When this witness took the stand he formally withdrew as counsel. However, despite the fact that he knew that, as the scrivener, he would have to take the stand as the court’s witness, he conducted the entire case for proponents and only at the end of the trial withdrew. The firm of which he is a member not only continued of record in the case but one of that firm argued the appeals before this Court.

13 This witness stated: “I feel I am better qualified to determine whether or not a man has testamentary capacity, than any one else.”

14 It is to be noted that when the witness DiGuglielmo testified to this incident the Court warned him that he was making- an accusation against a member of the bar. When Attorney DiGiaeomo, in rebuttal, denied the incident and referred to DiGuglielmo as a “numbers writer” the court cut off this reference. Yet the court in its opinion took this irrelevant testimony as a means of discrediting DiGuglielmo: “This implication [against the attorney] might be a most serious one, but coming from a witness of the type of Mr. Di Guglielmo, hnown m the neighborhood as a gambler, -is of no great weight.” (Emphasis supplied). There is no evidence of record concerning DiGuglielmo’s reputation as a gambler.

15 Cf: Wigmore on Evidence (3rd. Ed.), Vol. II, §§657, 658, 659; Patterson, Gdn. v. Snider et ux., 305 Pa. 272, 157 A. 612.

16 It might well be argued that Rose Benedict had a greater opportunity for observation but the difficulty is that, under her own testimony, she first stated that she saw the decedent daily, then she stated that she didn’t see the decedent from July 12th to July 19th and later stated that she was confused as to dates but was certain that there was not a seven day interval between her visits to the hospital.

17 Where the attorney who draws the will participates in the trial of a contest upon the instrument, his testimony cannot be considered disinterested: 57 Am. Jur. § 141, p. 130; Culpepper v. Robie, 165 Va. 64, 134 SE 687.

18 Conway Will, 366 Pa. 641, 643, 644, 79 A. 2d 208; DeMaio Will, 363 Pa. 559, 563, 70 A. 2d 339; Sturgeon Will, 357 Pa. 75, 82, 53 A. 2d 139; Cookson’s Estate, 325 Pa. 81, 88, 188 A. 904; Guarantee Trust and Safe Deposit Co., Guardian v. Heidenreich et al., 290 Pa. 249, 254, 138 A. 764; Guarantee Trust and Safe Deposit Co. v. Waller, 240 Pa. 575, 584, 88 A. 13; Graham’s Estate, 225 Pa. 314, 317, 74 A. 169.

19 The court commented that decedent on July 19th had seven visitors, all of whom, with the exception of Michael Masciantonio and the priest, testified that they were recognized by, and conversed with, the decedent. Such a comment is not fully supported by the record. Margaret D’Allesandro stated that on July 19th she was in the hospital almost five hours, that she had no conversation with decedent and that whatever remarks were addressed to decedent were “on one side”. Peter Masciantonio testified that, except for a shake of the head, the decedent was unresponsive and unable to make a will. Joseph Gennaro stated “I walked in and got hold of his hand and I asked him how he felt and he mumbled something. What.he said I did not understand”. Later, when the witness was asked as to decedent’s opening his eyes, he said: “Ves, he opened them, but he turned over to the other side and it looked to me like he was too sick to be talking to anyone.” The only two witnesses who testified that decedent on July 19th recognized and conversed with them were a specific devisee and the residuary legatee.

20 Even opinion evidence loses much of its weakness when, as here, it is supported by factual testimony and the circumstances herein related by the witnesses. Thus, in Henry’s Estate, 276 Pa. 511, 513, 120 A. 454, this Court said: “opinion evidence, standing alone, as it did, would not sustain a finding of forgery, in the face of the direct and credible evidence.Were the direct evidence discredited, or the opinion evidence strengthened by facts and circumstances, the ease might be different.” In accord: Snedeker, Estate, 368 Pa. 607, 609, 610, 84 A. 2d 568; Young Estate, 347 Pa. 457, 459, 32 A. 2d 901; DeLaurentiis's Estate, 323 Pa. 70, 76, 186 A. 359—all cases in which opinion evidence as to forgery was offered.

21 It is strange tliat the only, disinterested witness for proponent, Marta Giondonato, was completely ignored by the court in its opinion except for a notation that she was among those present on July 19th.

22 In noting this narrow and tortious construction we recall that which Mr. Justice (later Chief Justice) Woodward aptly said in Daniel v. Daniel, 39 Pa. 191, 212: “What is the distinction between that mental condition which is competent to understand a will, and that which is fit to make a will? If a microscopic vision could detect a distinction, who has scales nice enough to tell how much it would weigh in the jury box? The plaintiffs in error undertake to convince us that their cause was damaged by the witness testifying that the testator was fit to make a will, instead of testifying that he was competent to understand a will. We do not think the error, if error there was, did them any damage. We do not suppose the jury have been swayed a hair’s breadth by one form of answer, more than by the other”. See also: Wogan v. Small, 11 S. & R. 143; Wilkinson v. Pearson, 23 23. 117; Dichter Will, 354 Pa. 444, 47 A. 2d 691.