Appeal, No. 33, Jan. T., 1953, from decree of Orphans' Court of Delaware County, 1949, No. 315, in Estate of William J. Roberts, deceased. Decree affirmed; reargument refused March 24, 1953.
Francis T. Anderson, with him C. William Kraft, Jr., and Gray, Anderson, Schaffer & Rome, for appellant.
R. Winfield Baile, with him George W. Thompson, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is in a will contest. Contestant appeals from the refusal of the trial court to grant her motion for judgment non obstante veredicto following a verdict of a jury sustaining the will in an issue devisavit vel non. The jury trial was held in an orphans' court under the Act of July 1, 1937, P.L. 2665, 20 PS 2585. (The proceeding was prior to January 1, 1952, the effective date of the Act of August 10, 1951, P.L. 1163, sec. 746, 20 PS 2080. 746).
An issue d.v.n. was awarded by the orphans' court to determine: (a) whether at the date of execution of the contested will -- May 11, 1948 -- decedent possessed testamentary capacity, (b) whether the will was procured by undue influence, and (c) whether it was executed by decedent with testamentary intent, with the knowledge that it was a will. The jury answered the questions (a) and (c) in the affirmative and (b) in the negative. The verdict sustained the will. Upon refusal of motion for judgment for contestant n.o.v. this appeal followed. Appellant does not seek the grant of a new trial. Therefore, we need not consider alleged trial errors.
In refusing contestant's motion for judgment n.o.v. the court said: "The jury's verdict satisfies the professional and judicial conscience of the trial judge, is fully compatible with the evidence and the law of the case, and must therefore be upheld by the court."
The scope of a review by an appellate court under such circumstances is well defined in Stewart Will, 354 Pa. 288, 47 A.2d 204. In that case Mr. Justice JONES said, p. 295: "Once the chancellor approves and accepts the verdict, it becomes binding in the will contest in the Orphans' Court as determinative of the fact so established: Cross's Estate, 278 Pa. 170, 184, 122
A. 267. But, '"In every case tried before a jury in which the trial judge sits as a chancellor, the evidence is addressed to him quite as much as to the jury -- it must as a whole be judged by him independently of the jury -- must satisfy his (legal) conscience as well as the jury -- and cannot be rightfully submitted to the jury as a basis of any finding which he would not approve; in a word, he cannot permit the jury to do what he as a chancellor (after weighing the evidence in the light of the established law upon the subject) would not do"': Phillips' Estate, 244 Pa. 35, 42, 90 A. 457, quoting with approval from opinion of Judge ENDLICH in Caughey v. Bridenbaugh, 208 Pa. 414, 415, 57 A. 821, affirmed per curiam.
"The foregoing quotation was spoken with respect to a jury's verdict on the trial of an issue d.v.n. certified to the Common Pleas under the practice obtaining prior to the Act of July 1, 1937, P.L. 2665, 20 P.S. § 2585. It is no less applicable to a jury's verdict in the trial of an issue in Orphans' Court under the provisions of that Act. The Act of April 22, 1905, P.L. 286, 12 P.S. § 681, which provides for the filing of motions for judgment n.o.v., is adaptable to the trial of an issue d.v.n. only to the extent of the procedure it prescribes for raising the alleged invalidity of a verdict as a matter of law. It does not import into the question of the sustainability of a verdict on an issue d.v.n. the binding effect of the rule as to the evidence permissibly cognizable in testing a verdict rendered by a jury in a trial at law." We have reviewed the testimony in order to ascertain whether or not it sufficiently supports the verdict and the chancellor's approval of the same.
The basic controversy is over the validity of a bequest of a coal and builders supply business and a devise of the real estate on ...