Estate of Sharpless

Opinion,

Me. Justice Mitchell:

This case presents but a single point, whether there is sufficient evidence against the proffered will to entitle the contest ant to an issue as to its validity. There is no doubt that an issue is matter of right, under the statute, where there is a substantial dispute upon a material question of fact, and that the test of substantiality in the dispute is that a verdict could be supported by the trial judge upon a review of all the evidence : De Haven’s App., 75 Pa. 340; Harrison’s App., 100 Pa. 460; Schwilke’s App., 100 Pa. 681; Knauss’s App., 114 Pa. 20.

The contestant presents evidence, in the first place, of the death of the decedent leaving no known will, the accounting in her estate by her guardian, running over a period of more than a year and resulting in a surcharge very large, not only in proportion to the decedent’s estate, but to his own ability to pay. Under circumstances thus presenting, as contestant claims, a powerful motive for desperate measures, the proffered will is produced as discovered by accident in an out of the way and inappropriate place, loose among waste scraps of paper in an old atlas on top of a book-case. Passing, then, to the will itself, contestant claims that it is written upon a scrap of paper insignificant in size and inappropriate to such a purpose ; that it lacks all the formalities of execution by a professional hand, and yet is expressed in a concise and business-like style, using quasi technical words, “ order,” “ distribute,” etc., such as indicate a writer of more experience and knowledge of affairs than the decedent herself possessed, to say nothing of the absence of any gifts, or even mention of personal trinkets or tokens to her girl friends, such as might naturally be looked for in the will of a young girl, fresh from school, coming into possession of what was regarded as a fortune. Attention is then called to the strange absence of all clue to the handwriting of the paper and the' circumstances of its execution, and the unnatural failure of the decedent to mention to any one, either her young companions, or her relatives who are beneficiaries under the will, the fact of her having made it, reinforced by affirmative evidence that after the date of the paper produced, the decedent positively declared that she had not made a will.

From the evidence, of which this is an outline, contestant claims that the will was not in existence at the death of the alleged testatrix, but that it was written after her death, over her signature carelessly scribbled on a mere scrap of paper, and is, therefore, a forgery.

To meet this view of the case, the proponents start with the persuasive fact of an admittedly genuine signature to the will. ■They show the circumstances of the finding of the will by Caley during a visit at the Fronefield house, upon his own errand, and not by appointment. Looking into the provisions of the will itself, they show that it does what Ella Sharpless would naturally do with her estate, leave it to the relatives with whom she had lived from childhood, and who had been kind to her when a helpless orphan, rather than to the contestant, who, though nearer in blood, had held herself aloof during all the years when the child, at least, was innocent of offence, whatever the cause of the family estrangement may have been, and who had treated her with cruel neglect during a dangerous illness after coming to womanhood. Lastly, the proponents gave testimony that Ella herself had frequently declared to her friends her satisfaction at coming of age, so that she might prevent her property from going to the contestant, and her purpose at once to do what the evidence shows was not only natural and proper, but, as might be said, a moral obligation for her to do, to-wit, make a will leaving her property to the relatives of whose family she formed a part.

In this review, I have touched the evidence lightly, and only the salient points. It is obviously undesirable, at this stage of the case, to indicate, or even to form an opinion as to which side has the weight of the evidence; and I have not done either. Nor have we considered at all the admissibility of any of the evidence referred to, if objected to. Such questions are left free to be determined when they arise.

But, looking at the contestant’s evidence separately, it seems to make a case for a jury; and, if no counter evidence were adduced, there would probably be no hesitation as to a verdict. So, on the other hand, it is equally clear that the proponent’s evidence would not only support, but, uncontradicted, would command a verdict. Does it, however, so completely meet, answer, and overthrow the contestant’s case as to leave but a one-sided issue? We cannot say so. Looking at the whole evidence as put before us in print, we do not think we can safely say that the balance is not doubtful. So much depends on the means of knowledge, the interest or bias, the manner, the character, and the personal weight which each witness carries as an individual among his neighbors and in the community, that a jury is the only appropriate tribunal, in such a case, to determine which way the balance inclines. Having the testimony present to their eyes as well as their ears, the truth may be made manifest beyond any substantial doubt; and the judge, who will have the same advantage, will still have the final result within his control. To decide it now, as presented, would be to decide it in the dusk, if not in the dark, when full daylight is at hand. For these reasons, we are of opinion that an issue should be awarded.

Decree reversed, and record remitted, with directions to award an issue as prayed.