Masciantonio Will , 396 Pa. 16 ( 1959 )

Opinion by

Mb. Justice Benjamin B. Jones,

For the second time we are called upon to determine questions arising out of an attack on the validity of this will. On the first appeal (Masciantonio Will, 392 Pa. 362, 141 A. 2d 362) we reversed the Orphans’ Court of Montgomery County and directed “that the court below review the entire record in a manner consistent with [our] 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 [our] opinion upon a retrial; . . . .” The court below, upon the return of the record from this Court, once again upheld the validity of the will, found that the decedent at the time of execution of the will did possess testamentary capacity and dismissed the appeal from the probate of the will. These appeals from that decree were then taken.

The facts and circumstances surrounding the execution of this will are fully set forth in our previous opinion and need not be repeated herein.

In the court below at the outset of this will contest the parties failed to demand a trial by jury and waived thereby their right to such trial in the event the court found that a substantial dispute of fact existed concerning the validity of the will; §745(a), (c), of the Orphans’ Court Act of 1951,¹ as amended. Despite this waiver of the right to a jury trial the court below had the right in its discretion to require a trial by jury of any of the issues of fact: §745(d) of the Orphans’ Court Act of 1951, as amended, supra. The court below did not sit to determine preliminarily whether or not there existed such a substantial dispute of fact on the issue of decedent’s testamentary capacity so as to justify a trial by jury as a matter of right, but rather as the ultimate fact-finding tribunal.²

In considering this case a second time on appeal we do not alter that which we said in Masciantonio Will, 392 Pa. 362, 367, supra: “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 al., 340 Pa. 27, 32, 16 A. 2d 4.” Such rules of appellate review, however, do “not mean that he [the trial judge sitting as a chancellor] is a law unto himself and that the workings of his conscience cannot be reviewed. On the contrary, the authorities are clear to the effect that his discretion in such cases is, — as in all other cases — not unlimited, and that his decision should be reversed in this court, if, in our opinion, the discretion has been abused; [citing cases]”; Stern, J. (later Chief Justice) dissenting in May v. Fidelity Trust Company, 375 Pa. 135, 150, 99 A. 2d 880. Were it otherwise appellate review would be futile and vain.

In all appeals from decrees of Orphans’ Courts we are under the statutory duty to “hear, try and determine the same as to right and justice may belong, and decree according to the equity thereof”: Orphans’ Court Act of 1951, supra, §773, 20 PS §2080.773; Ciammaichella. Appeal, 369 Pa. 278, 281, 85 A. 2d 406; Nimlet’s Estate, 299 Pa. 359, 368, 149 A. 658; McCullough’s Estate (No. 2), 292 Pa. 422, 426, 141 A. 239; Shelley’s Estate, 288 Pa. 11, 15, 135 A. 740; Drennan’s Estate, 118 Pa. 176, 12 A. 348.

Even the most cursory examination of the opinion of the court below reveals the rendition by it of simply lip service to the mandate of this Court, a mere profession of obedience. It is not for this Court to act as a fact-finding tribunal nor to substitute its judgment for that of the trial judge who saw and heard the witnesses. It is, however, exclusively within our province to determine whether a subordinate court has complied with a considered mandate of this Court. We have not determined in our previous opinion nor do we now determine with respect to the validity of this will or the presence or lack of testamentary capacity in the decedent on July 20, 1955. We consider only whether the court below in determining those issues has followed the order of this Court as to the manner of reviewing the evidence. An examination of the opinion of the court below in which it purports to review the evidence reveals unerringly that it failed to review the evidence as a whole and with that sense of impartiality and objectivity implicit both in our mandate and the opinion setting forth the reasons for such mandate. In view of our mandate, we find obvious both a perfunctory review of the evidence and an abuse of discretion on the part of the court below.

Even though we did not have the opportunity of seeing and hearing the witnesses, the testimony as it appears in the record reveals no such “inadequacies and weaknesses” in the contestants’ proofs as to justify the court’s making a finding to this effect.³ Both the proponents’ and contestants’ proofs were of such quality that had an issue devisavit vel non been requested it would have had to be allowed. While the law, for very practical reasons, places extensive power in the hands of a chancellor in a will contest, such power must be exercised with discretion and objectivity.

Patently, the court below did not follow the mandate of this Court. Under such circumstances justice and equity require that the determination of the issue of decedent’s testamentary capacity be reposed in other hands, and we have no other recourse than to direct the trial of such issue by a jury.

It is, therefore, our opinion that the issue of testamentary capacity should be tried by a jury.

Decree reversed with the direction that a trial by jury be had to determine the testamentary capacity of Ermindo Masciantonio at the time of the execution of the will of July 20, 1955.

1 Act of Aug. 10, 1951, P. L. 1163, art. VII, as amended, Feb. 10, 1956, P. L. (1955), 1022, §5, 20 PS §2080.745.

2 That there is a distinction between a court determining the propriety of the grant of an issue and acting as the ultimate fact-finding tribunal, see: Kerr v. O’Donovan, 389 Pa. 614, 621, 622, 134 A. 2d 213; Lewis Will, 364 Pa. 225, 232, 72 A. 2d 80; Lare Will, 352 Pa. 323, 331, 332, 42 A. 2d 801; DeLaurentiis’s Estate, 323 Pa. 70, 79, 80, 186 A. 359; Kline’s Estate, 322 Pa. 374, 378, 186 A. 364.

3 Implicit in our former opinion was a finding that, if properly evaluated, contestants’ proofs were substantial. Despite this, the court below rejected the opinion of this Court in that respect