Lare Will

I am in complete accord with the majority opinion.

The difference in opinion in this Court concerns the scope of the authority of a hearing judge in the orphans' court as to when he should grant or refuse an issue devisavit vel non. The majority have decided that the exclusive function of such hearing judge is to determine whether there exists asubstantial dispute of fact. The minority view is that thehearing judge may conclude, despite the testimony, that he would not support a verdict of a jury and therefore no substantial dispute exists.

To my mind whatever confusion appears is largely due to inapt and unfortunate expressions in some of the cases. It particularly appears in cases where the orphans' court has been required to determine whether or not the dispute issubstantial. It is also apparent in defining the function of atrial judge without a jury, where, under the cases, such judge acts as a chancellor.

Because of the large number of reported will contests, it would be neither practical nor useful to attempt to collect and discuss or distinguish them. There has been expended much learning and effort upon this important branch of the law. Like all other matters of legal development, earlier views have been subjected to modification. This Court has not hesitated to declare, in at least one instance, that its earlier view was mistaken. See Cross's Estate, 278 Pa. 170, 180, 122 A. 267.

The case of DeLaurentiis's Estate, 323 Pa. 70, 186 A. 359, is perhaps the latest leading authority upon the subject now under consideration. Mr. Justice HORACE STERN has concisely and accurately defined the function of an orphans' court judge sitting to determine whether a substantial dispute exists: ". . . the judge of the orphans' court conducting the hearing is not to constitute himself the jury, that is, to decide the case as he would if acting in the capacity of an ultimate fact-finding tribunal. His function is to decide whether there is a substantial dispute upon a material matter of fact, and such a dispute exists if a verdict that might be reached by a jury, even if at variance with his own opinion, would not have to be set aside as judicially untenable because contrary to the weight of the evidence. . . ." We have repeatedly reaffirmed this principle: Kline's Estate, 322 Pa. 374, 378, 186 A. 364;Hunter's Estate, 328 Pa. 484, 492, 196 A. 35; Noble's Estate,338 Pa. 490, 492, 13 A.2d 422; Porter's Estate, 341 Pa. 476,482, 19 A.2d 731; De Silver, Admrs., v. Pa. Trust Co., 342 Pa. 320,322, 20 A.2d 761; Young Estate, 347 Pa. 457, 459,32 A.2d 901; see also Patti's Estate, 133 Pa. Super. 81, 83,1 A.2d 791.

A review of this record has convinced me that the learned hearing judge of the orphans' court misconceived his statutory function. He constituted himself a jury and decided the case as he would have done if acting in the capacity of the ultimate fact-finding tribunal. With substantial conflicting evidence, he found as a fact that the proponent had forged the questioned testamentary writing. He then held, in effect, that because of such finding he could not support a verdict of a jury in favor of the will and consequently no substantial dispute existed. He declined to award an issue. This, in my view, was clearly error.

At the outset we are met with a constitutional provision (Article 1, section 6, of the Constitution of the Commonwealth): "Trial by jury shall be as heretofore, and the right thereof remain inviolate." In North Pennsylvania Coal Co.v. Snowden, 42 Pa. 488, 491, this Court said: . . . "if there is any right to which, more than all others, the people of Pennsylvania have clung with unrelaxing grasp, it is that of trial by jury. They brought it with them from the land of their fathers. In every constitution which has been adopted, they have taken care to secure it against infringement, and put it beyond the power of either the executive, the legislature or the courts to take it away from any individual. . . . The judiciary, no more than the legislature, can deny to any litigant the right of trial by jury, in a case appropriate to such a mode of trial."

The orphans' court, within the scope of its jurisdiction, acts as a court of chancery. A trial in that court, is a trial by a single judge. Such court, being a court of limited jurisdiction, exercises only such power as is given by statute,Cutler's Estate, 225 Pa. 167, 73 A. 1111; Cutter's Estate,286 Pa. 505, 134 A. 489; Watson's Estate, 314 Pa. 179, 170 A. 254;Mains's Estate, 322 Pa. 243, 185 A. 222; Gilbert Estate,350 Pa. 13, 38 A.2d 277. It is a special tribunal for specific cases, and when so acting, applies the rules and principles of equity: Brinker v. Brinker, 7 Pa. 53; Willard's Appeal, 65 Pa. 265; Douglas's Estate, 303 Pa. 227, 154 A. 376.

The Orphans' Court Act of June 7, 1917, P. L. 363, section 21(b), 20 PS 2582 (re-enacting section 41 of the Act of March 15, 1832, P. L. 135), provides: "Whenever a dispute upon a matter of fact arises before any orphans' court, on appeal from any register of wills, or on removal from any register of wills by certification, the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof. . . ."

For a review of the cases under section 21(b) of the Orphans' Court Act and the preceding section 21(a) see opinion of Chief Justice MOSCHZISKER in Cross's Estate, 278 Pa. 170, 122 A. 267. He clearly defines when such an issue is mandatory and whenadvisory. See also historical data in dissenting opinion of Justice SIMPSON in Fleming's Estate, 265 Pa. 399, 415, et seq.,109 A. 265.

Again, for the sake of brevity, it will suffice to state that it is well-settled that the function of the orphans' court in merely seeking to ascertain whether a substantial dispute exists, does not deprive the parties of the right to a jury trial. It is only where such a dispute exists that the parties are entitled to demand a jury trial. The dispute must besubstantial and not a mere conflict in the testimony: Guar. T. S.D. Co. v. Heidenreich,290 Pa. 249, 251, 138 A. 764. Thus, for example, if a will is alleged to have been forged, but two reputable subscribing witnesses testify that they saw testator affix his signature; testator's banker, lawyer, physician and other friends, as well as a handwriting expert, all testify that the signature is that of the testator, then the mere opinion of a tradesman that he did not believe the signature to be that of the testator, would not be sufficient in weight for the court to declare that the conflict in testimony was a substantial dispute which would necessitate the award of an issue.

When an issue is awarded in a will contest, the verdict, where properly sustained by the court of common pleas, (or orphans' court trying the case with a jury under the Act of July 1, 1937, P. L. 2665, 20 PS 2585), is conclusive and binding on the orphans' court: Cross's Estate, supra. In that case Chief Justice MOSCHZISKER said (page 184): "Where a substantial dispute exists on a material point of fact concerning the status of an alleged will or testamentary writing, and the evidence is of the probative value required by our decisions, the orphans' court must send such issue to the common pleas when requested so to do by any party in interest, if that request is made in due season. . . . After judgment entered on the verdict in the common pleas, so long as the judgment stands undisturbed, the findings of fact by the jury of that tribunal are conclusive on the orphans' court, (a) whenever the issue is of the class mentioned in Rule 2, — whether sent to the common pleas on request or otherwise, — or (b) when it involves the decision of a fact upon which depends the jurisdiction of the orphans' court." But in presenting the evidence before the trial judge and a jury "The trial judge, who sits to determine an issue devisavit vel non, acts as a chancellor. He is not bound by a verdict when it is against the manifest weight of the evidence, which is addressed to him quite as much as to the jury. If his professional and official conscience is not satisfied that it is sufficient to sustain a verdict against the will, either because it lacks probative force or inadequacy, it becomes his duty to set the verdict aside: Kustus v. Hager, 269 Pa. 103; Keller v. Lawson, 261 Pa. 489; Englert v. Englert, 198 Pa. 326": Brehony, Exr., v.Brehony, 289 Pa. 267, 270, 137 A. 260. See also: Guar. T. S.D. Co. v. Heidenreich, supra; Buhan v. Keslar, 328 Pa. 312,194 A. 917.

Upon a petition, answer and replication in the orphans' court for an issue devisavit vel non, under section 21(b) of the Orphans' Court Act of 1917, supra, on the allegation of a substantial dispute, the court must necessarily dispose of the application in one of three ways: (1) Grant the issue, (2) refuse the issue and sustain the will or (3) refuse the issue and declare the will invalid. In this field are hundreds of varying cases, but I shall only consider a few in each classification, as examples of the method by which they have been treated:

(1) Granting an issue: Sharpless's Estate, 134 Pa. 250,19 A. 630; Kline's Estate, 322 Pa. 374, 186 A. 364; DeLaurentiis'sEstate, supra. In each of these cases there existed a well-defined, substantial dispute, the determination of which depended upon a verdict by a jury.

(2) Refusing an issue and sustaining the will: Lowe's Estate,318 Pa. 497, 178 A. 820; Rosenthal's Estate, 339 Pa. 488,15 A.2d 370; Porter's Estate, 341 Pa. 476, 19 A.2d 731. In each of these cases the contestants' evidence, viewed in its most favorable light, did not measure up to the standard necessary to nullify the testamentary writing.

(3) Refusing an issue and declaring the will invalid:Fleming's Estate, 265 Pa. 399, 109 A. 265; Culbertson's Estate,301 Pa. 438, 152 A. 540; Morgan's Estate, 146 Pa. Super. 79, 22 A.2d 87. In Fleming's Estate, the forgery was established by incontrovertible physical facts, such as presence of carbon on the signature, and by testimony which the majority of the court regarded as overwhelmingly refuting the rather fantastic and dramatic story of the finding of the will and its execution by a surviving witness. Justice SIMPSON filed a vigorous dissent, regarding the matter as a jury question. In theCulbertson case the confession of the forger was established, and was corroborated by incontrovertible physical facts. Again no substantial dispute was held to exist and the will was stricken down. In the Morgan case the mental incapacity of decedent was so completely proven that the extremely weak testimony of the proponent did not overcome the established facts.

From a consideration of the foregoing, it plainly appears that the orphans' court hearing judge is limited by statute to a single inquiry, to wit: is there a substantial dispute? He is not, in such capacity, to be confused with a chancellor who, with the aid of a jury, is the trier of fact. At times the hearing judge must weigh the evidence in order to ascertain whether the dispute is substantial. Beyond this he may not go. I am convinced that the rule, which is so accurately stated inDeLaurentiis's Estate, supra, is the correct exposition of the law and should be followed.

The testimony and the court's opinion in the present case have been examined with care. The judge has found, as a fact, that not only is the signature to the will forged, but that the typewriting was superimposed by the proponent over the forged signature. The judge states in his opinion: "No person called as a witness claims to have direct knowledge of the forgery of the alleged will. The evidence offered by both sides consists of circumstantial evidence and the opinions of experts."

Proponent testified that he found the disputed writing in his wife's handbag and he was corroborated by two witnesses. Four bank officials and a handwriting expert testified to the genuineness of the signature. Proponent denied that he had typewritten the words of the will. The contestants' evidence consisted largely of circumstantial evidence, opinions of experts and deductions and inferences to be drawn from the testimony. Concisely stated, contestants point to the fact that the will was written upon a blank check, a very unusual circumstance; that decedent frequently signed blank checks and carried them about with her; the improbability that decedent would disinherit her nearest of kin in favor of the proponent, her husband; the advice of the attorney for the decedent to the proponent that he should tear up the will because, in the attorney's opinion, it was a forgery; the improbability of the proponent's testimony concerning the discovery of the alleged will; the proponent's threatening language in attempting to discourage a will contest; that decedent was a skilled typist, whereas the proponent was an amateur; that decedent, at or about the time of the date appearing on the will, carried a fountain pen filled with green ink, whereas the will was signed with black ink; that the check was old, whereas the typewriting was fresh, and many other arguments and conclusions to be drawn from the surrounding facts and circumstances.

It appears to me that this testimony, considered as a whole, discloses the existence of a substantial dispute of fact. If what the proponent and his witness have testified to is true, the probate of the will should not be disturbed. On the other hand, if what the contestants' witnesses say and infer is correct, then the proponent did forge the will and it should be annulled. This is a typical dispute of fact under Section 21(b) of the Orphans' Court Act, supra, which, under the Constitution, proponent has the right to have tried by a jury.

I cannot agree that the minority statement that on this record no verdict sustaining the will offered for probate could possibly be allowed to stand is a sufficient reason to deny the proponent's statutory right to a trial by jury. While a verdict of a jury will not be lightly set aside, the trial judge, sitting as a chancellor and also subject to review by the appellate court (Guar. T. S.D. Co. v. Heidenreich, supra), still has complete control over the verdict. In my opinion we should continue to follow, and not depart from, our declared law and practice.