Opinion,

In this case an issue was granted, to determine a question of undue influence exerted upon the mind of a testator in the execution of a testamentary writing. The issue was granted by the Orphans’ Court, after a full hearing upon the matters of fact alleged against the will, and a contest upon the sufficiency of the facts in evidence to justify the granting of an issue. It must be assumed that in granting the issue the learned court was of opinion that there was evidence enough to carry the case to a jury, and to require a verdict to determine upon the disputed matter of fact in question. When the issue thus granted was tried in the Common Pleas the learned judge who tried the cause, who was not the same judge who granted the issue, was of opinion that there was not sufficient evidence to warrant a verdict against the will, and he withdrew the case from the jury by a binding instruction to return a verdict in favor of the will.

The question of undue influence exerted upon the execution of a will is a question of pure fact. Its disposition'properly rests with the jury alone. Even if the trial judge should feel that were he sitting as a juror he could not regard the evidence as sufficient to induce him to find a verdict against the will, that is not enough to justify him in taking the case entirely from the jury. He must be prepared to go further than that, before he can deprive the jury of its proper control of the dispute. This court has indicated in a number of decisions a rule by which to determine the granting of an issue, and it is equally applicable in determining whether a cause of this kind ought to be withdrawn from the jury. It is thus expressed in a recent case: “ 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 *627the 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: ” Knauss and Seip’s App., 114 Penn. St. 10. Having this principle in mind we have given to the testimony on this record a most patient and careful examination and study, and, after doing so we do not feel able to say that, had we been sitting as trial judges and a verdict been rendered against the will and codicils in question, we should have felt constrained to set aside the verdict. That being so, it is necessary to reverse the judgment of the court below in order that the cause may be heard and decided by a jury on its merits.

It would not be proper to discuss the testimonj'- in detail, as we could not do so without giving a possible bias to the jury, and they ought to be entirely free to consider and determine the facts upon their own judgment. It is perhaps well to say that undue influence may be exercised secretly as well as openly, and this is especially possible where a confidential relation exists between the principal devisee and the testator and they dwell together in the same house. In such cases' it is not eas3r to make out an allegation of undue influence by proof which is direct or positive, nor is it necessary to do so. The effects of its exertion may be very visible, but as these may also be consistent with a perfectly free will, much caution must be exercised by the jury in considering such an aspect of the case. Rash conclusions must not be drawn simply because of a large disproportion of the estate being given to one to tbe exclusion of others; and the evidence of the exertion of undue influence must be of a satisfactory and convincing character, whether it be direct or circumstantial. With these reflections we dismiss this part of the case, and sustain the first, second, third, fourth and. eighteenth assignments of error.

We sustain the sixth assignment because the question asked' had some tendency to show the relations between the testator and his son, the principal devisee, and might possibly tend to illustrate the power of tbe son over the father. We sustain *628the eighth, ninth and tenth assignments, because we cannot say that the answers to the proposed questions would not indicate the exertion of undue influence or of improper control of the free agency of the testator, both as to the making of the will and its custody, and, indeed, as to his assent to its contents. As to the remaining assignments we think they are without merit and they are not sustained.

Judgment reversed and new venire awarded.