Wills — Execution — Signature — Extremity of last sickness of testator — Direction to others to sign testator's name — Presence of decedent — Witnesses — Act of June 7, 1917, P. L. 403 — Issue devisavit vel non — Substantial dispute — Evidence — Findings of fact — Appellate review.
1. Decedent, on the day of his death but several hours before the first appearances of death, stated that be desired to draw a will and dispose of his property in a certain way. A will was prepared, upon which decedent made his mark in the presence of proponent, one of the proposed beneficiaries, and another, but when asked by proponent if she should sign as a witness, decedent replied she should not because she was one of the beneficiaries. Several hours later the attending physician, when requested by proponent to witness the writing, subscribed decedent's name, not in the presence of decedent, and directed proponent to have decedent remake his mark. There was no evidence that decedent requested or approved or bad anything to do with the physician subscribing decedent's name. Thereupon proponent took the will to decedent and the latter, in the presence of her and another person, remade the mark. Held that (a) decedent was not prevented by the extremity of his last illness from signing his will, nor was be incapable of directing or authorizing his name to be subscribed thereto; (b) while decedent was too weak to write his name, he was not too weak to ask someone else to do it for him; (c) the will was not validly executed in that decedent's name was not subscribed, as required by section 3 of the Wills Act of June 7, 1917, P. L. 403, in his presence, by his direction and authority; and (d) such a signing of the writing was not supported by the evidence of two competent witnesses, as required by sections 2 and 3 of the Act of 1917. [485-92]
2. It is the duty of the hearing judge sitting as a chancellor, after weighing the evidence impartially, to refuse to grant an issue devisavit vel non, where he feels that there is no substantial dispute upon a material fact and the evidence is such that any verdict other than in accordance with his findings would have to be set aside. [492]
3. The findings of fact of the chancellor, supported by competent evidence and affirmed by the court in banc, will not be disturbed on appeal. [485, 492]
Argued December 7, 1937.
PER CURIAM, January 3, 1938:
The decree of the Orphans' Court, refusing to admit the proffered will to probate, is affirmed on the comprehensive opinion of Judge BOLGER.
Costs to be paid by appellant.