Appeal from decree of Orphans' Court of Perry County, Letter No. H-979, in re estate of Emma M. Holtz, deceased.
Huette F. Dowling, with him Paul H. Rhoads, Allen W. Holman, Jr., and Rhoads, Sinon & Reader, and Dowling and Dowling, for appellant.
Ronald M. Katzman, with him James W. Evans, and Goldberg, Evans & Katzman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno dissents.
Emma Holtz, an 83 year old spinster and Perry County resident, died March 4, 1962. Subsequently,
a will bearing date of December 18, 1947 and two codicils, bearing dates, respectively, of July 24 and August 14, 1958, were probated by the Register of Wills of Perry County and letters testamentary issued to one Hulda Stine. Thereafter, two appeals, each claiming that the will and codicils were forged, were taken from the probate of the three instruments.*fn1
President Judge Himes, specially presiding in the Orphans' Court of Perry County, directed that a jury be impanelled to determine whether the instruments were genuine or forged. After a lengthy trial, the jury returned a verdict finding that the instruments were forged. After oral arguments of counsel and the submission of written briefs, President Judge Himes set aside the jury's verdict and found that the instruments were genuine and not forged. A court en banc -- consisting of three judges designated by this Court*fn2 -- dismissed the Board's exceptions to President Judge Himes' decree nisi and entered a final decree which
affirmed the probate of the will and codicils. From that decree the instant appeal was taken.
At the outset, it is necessary to inquire into the scope of review which we entertain in determining the validity of this decree and such inquiry entails an evaluation of the effect of the jury verdict and the weight, if any, to be ascribed to such verdict.
The practice and procedure in the case at bar is governed by the Act of July 14, 1961, P. L. 610, § 1, 20 P.S. § 2080.745. Prior to the passage of that statute, an Orphans' Court had the power to dispose of an appeal from the probate of a testamentary instrument in the following manner: (a) if the dispute of fact concerning the validity of the writing alleged to be testamentary was substantial, then the court was under a statutorily-mandated duty to award the parties a trial by jury and (b) if the dispute of fact was not substantial, then the court could refuse a jury trial and either (1) sustain or (2) declare invalid the testamentary writing. See: Murray Will, 404 Pa. 120, 124-129, 171 A.2d 171; Hunter Will, 416 Pa. 127, 136, 137, 205 A.2d 97. Under such prior law when a party was statutorily entitled to a trial by jury or when the Orphans' Court, in its discretion, awarded a jury trial, then the statute provided that "the verdict of the jury shall be conclusive only if the court is satisfied with the justness of it on the basis of all the ...