May 22, 1961
Appeal, No. 46, Jan. T., 1961, from decree of Orphans' Court of Montgomery County, No. 58,557, in re estate of Howard F. Fisher, deceased. Decree affirmed.
Virginia Funk, with her Michael Edelman, for appellant.
Joseph B. Quinn, with him Roger J. Soens, and H. Lyle Houpt, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
[ 403 Pa. Page 613]
OPINION BY MR. JUSTICE BELL.
The lower Court refused an issue devisavit vel non. Appellant correctly states that the questions involved are (1) whether there was a substantial dispute of fact (a) as to decedent's testamentary capacity; (b) as to whether the decedent's last will was obtained by undue influence or fraud; and (2) whether the Court below abused its discretion in refusing to award an issue devisavit vel non.
The lower Court in an exhaustive opinion covering 75 pages, ably analyzed and painstakingly reviewed more than 2500 pages of the record, and found (1) that testator had testamentary capacity at the time he made his will; (2) that the will was not obtained by undue influence or fraud; and (3) that the evidence was not sufficient to raise a substantial dispute of fact upon the material questions involved which is the controlling test for an issue devisavit vel non.
Mr. Justice MUSMANNO dissents.
Notwithstanding the vigorous argument of counsel for appellant, we find no error. Decree*fn* affirmed; each party to pay own costs.
* The decree dismissed the caveat and directed the Register of Wills to probate the will of September 13, 1954, as the last will and testament of Howard F. Fisher, Sr.
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