Rafferty's Estate

Opinion by

Orlady, P. J.,

The paper offered for probate as the last will and testament of Frank Rafferty, was dated three days before he died in the West Penn Hospital, Pittsburgh, where he had been for a week previous seriously ill with lobar pneumonia, complicated with alcoholic delirium. The facts surrounding the execution of his will are viewed froni antagonistic standpoints by the parties interested in the results; physicians, nurses and attendants testified very positively to very opposite conditions. An appeal taken from the decision of the register in admitting the will to probate was dismissed by the Orphans’ Court, and after hearing on exceptions filed, the appeal of the contestant was again dismissed. The facts stated in the opinion filed by the court in banc present a case which may be.accepted as controlling under the decision of Whites’ Est., 33 Pa. Superior Ct. 533. Au issue is of right only, where there is a substantial dispute, founded upon the testimony, about a material fact, and where the verdict against the validity of the will would be so unsatisfactory that the court could not permit it to stand.

The Orphans’ Courts of this Commonwealth should discourage litigations of this kind, unless based on credible evidence of material facts, by refusing an issue. Under the decisions it is not necessary to analyze the testimony as we accept the facts found by the court below as controlling.

The decree is affirmed.