Appeal of Knauss

Mr. Justice Sterrett

delivered the opinion of the court,

It is contended by appellants that according to the true intent and meaning of the 41st section of the Act March 15th, 1832, there was “a dispute” before the Orphans’ Court “ upon a matter of fact,” viz.: Whether the deceased, George Probst, was of sound and disposing mind, memory and understanding at the time he signed a certain paper, purporting to be his last will and testament; and that it thereupon became the duty of the court to “direct a precept for an issue to the Court of Common Pleas of the county for the trial ” of said disputed fact.

It cannot, of course, be doubted that the matter of fact alleged to be in dispute is material. The sole question is whether, upon the testimony presented by the respective parties, a serious dispute has arisen as to the testamentary capacity of the alleged testator; such a dispute as should be submitted to and passed upon by a jury. In rightly determining that question there is only one safe and reliable test. If the testimony is such that after a fair and impartial trial, resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of the Act, has arisen. On the other hand, if the state of the evidence is such that the judge would not feel constrained to set aside the verdict, the dispute should be considered substantial, and an issue to determine it should be directed. This simple and only safe test is supported alike by reason and authority: Graham’s Appeal, 61 Pa. St., 43 Cozzen’s Will, Id., 196 ; DeHaven Appeal, 75 Id., 337; Harrison’s Appeal, 100 Id., 458; Swilke’s Appeal, Id., 628. In the last cited case, the present chief justice says: “The issue is of right, under the 41st section, when the fact arising and in dispute is substantial and material to the inquiry, unless the whole evidence of the fact alleged be so doubtful and unsatisfactory, that a verdict against the validity of the will should not be permitted to stand.” In DeHaven's Appeal, supra, it is said we ought not to reverse a decree refusing an issue if the Court of Common Pleas, after trial, would have been bound to set aside a verdict against the will as contrary to the manifest weight of the evidence. “ Of what- use would it be if the case can be decided but one way.”

Without pursuing the subject further or referring specifically to the evidence bearing on either side of the question, a careful consideration of the testimony returned with the record, and application thereto of the rule above stated, has led us to the conclusion that a precept for an -issue to the Court of Common Pleas should have been directed.

Decree reversed at the eosts of appellees, and it is now adjudged and decreed that a precept for an issue to the Court of Common Pleas of Lehigh county, as prayed for by appellants, be and the same is hereby directed.