Cranmer's Estate

Undoubtedly, in a proper case, the Orphans’ Court may set aside the probate of a will without granting an issue; such a case was Fleming’s Estate, 265 Pa. 399, where it could not be successfully contended that there was a substantial dispute upon a material fact, because the evidence, when considered as a whole, was insufficient to sustain a verdict in favor of the party praying for an issue. No reason has been suggested to us why the Register of Wills should not apply the same rule and refuse probate without granting an issue where the facts justify it, although no case in which he has done so has been called to our attention, and doubtless he would not take such an unusual course except in a very clear case.

The granting of an issue by the Register of Wills is in the nature of an interlocutory decree, from which an appeal may be taken to the Orphans’ Court under section 21 of the Register of Wills Act of June 7, 1917, P. L. 415. In the present instance the Register followed the usual practice; that is, he suspended action upon the application for probate until the trial of the issue, after which he would allow or refuse probate in accordance with the finding of the jury. It is because the Register did not enter a decree refusing probate of the will, instead of awarding an issue, that this appeal was taken by the caveator.

The judge who sat at the preliminary hearing took the view that the contestant, having petitioned the Register of Wills for a decree in the alternative, should not now complain because one of the alternative decrees which he suggested, to wit, the award of an issue, was allowed; the hearing judge also, however, considered the case in the light of the evidence, and we have done likewise, and we have reached the conclusion that the Register properly declined to refuse probate, and also properly awarded an issue.

The testator had been a district surveyor and was a man of intelligence; that he had testamentary capacity was not disputed, but the appellant alleges undue influence, and further contends that, at the time the testator executed *371the will, he did not have “a firm resolution and advised determination to make a testament:” 2 Sheppard’s Touchstone (Prest.), 404; and while conceding that where a paper offered for probate bears upon its face the form and character of a will, the presumption of law will be in its favor, and the burden thrown upon the contestant of proving that the will was not in fact executed animo testandi; nevertheless, counsel for the appellant, in his very carefully prepared brief, urges upon us that in the present case the evidence, considered as a whole, is not only sufficient to overcome this presumption, but supports so overwhelmingly the allegations of the contestant as to show conclusively that the execution of the will was conditional, while at the same time it fails to show an intention on the part of the testator to make the will an operative one, citing 1 Schouler on Wills (1923), pars. 251 and 336; Theobald on Wills, 15; 1 Redfield on Wills, 171 (note), 172. Accordingly, the contestant asks us to vacate the decree awarding an issue and to dismiss the application for probate.

The contestant makes out a strong case, and there is evidence which, if taken alone, is sufficient to support the contestant’s allegations; on the other hand, there is sufficient testimony in support of the validity of the will, if believed by a jury, to sustain a verdict in its favor.

A careful analysis of the testimony will be found in the opinion of the Register, to which it seems unnecessary for us to add anything except to emphasize the statement made by the hearing judge, that the credibility of some of the witnesses may have much to do in the determination of the controversy, and that the credibility of a witness is pre-eminently a question for a jury: Miller’s Estate, 179 Pa. 645.

As we see no reason for disturbing the decree of the Register, the exceptions are dismissed.