White's Estate ( 1907 )

Opinion by

Henderson, J.,

The appellant alleged testamentary incapacity and undue influence as reasons for setting aside the instrument probated as the last will of David McC. White. On the hearing of the rule for an issue the allegation of incapacity was abandoned. The charge of undue influence was supported by the testimony of a single witness, the attending physician, who testified to declarations made by the wife of the testator who was the solé devisee. These declarations were not made in the presence of her husband, nor was any fact testified to by the witness other than the declarations referred to. This evidence would indicate that Mrs. White was anxious to have a will made in her favor and that she had told her husband that if he did not execute one she would leave him. It is not clear that this, if uncontradicted, would be sufficient to overthrow the will. It does not prove that that document was executed because of the threat. The wife had a right to urge her husband to regard her when he made his will. Such solicitation on her part would not amount to undue influence : Dean v. Negley, 41 Pa. 312; Trost v. Dingier, 118 Pa. 259. But the testimony of Dr. Spotz is contradicted by Mrs. White, and the evidence of the witnesses for the appellee shows very clearly the individual volition of the testator in the execution of the will. It was dictated to a neighbor, when the testator’s wife was not present, who was directed to take the memorandum to Judge Mc-Clban and have the will formally prepared, and after the preparation of the will it was read by the testator in the presence of Mr. Chronister and declared by him to be in accordance with his direction. He also discussed its provisions with Mr. Olewine and gave his reasons both to him and to Mr. Chronister for making it as he had. His estate was small, his wife had been his faithful companion for many years and had nursed him constantly during his illness; his children had neglected him, and these considerations influenced him to make the will as it was. The evidence is overwhelmingly in favor of its validity and the learned judge of the orphans’ court has given full, clear and satisfactory reasons for his action. An issue is of right only where there is a substantial dispute about a material fact, and where the evidence is so doubtful or unsatisfactory that the court should not permit a verdict to stand against the validity of the will an issue should not be granted. The numerous authorities cited in the opinion filed in the court below render a discussion of the subject unnecessary. The appellant wholly failed to overcome the presumption in favor of the validity of the will and the evidence presented by the appellee in support thereof.

The decree is affirmed.