This is an appeal by Marcellus R. Lare, Jr., husband of Gertrude K. Lare, deceased, and administrator cum testamento annexo of her estate, from the action of the court below sustaining an appeal from the probate of an instrument as her last will and testament, holding that the instrument was a forgery, and refusing appellant's request for the granting of an issue devisavit vel non. *Page 325
Gertrude K. Lare died June 25, 1942, at her home in Mount Lebanon, survived by her husband, Marcellus R. Lare, Jr., appellant, two brothers, Carl E. Maratta and Paul E. Maratta, and a sister, Katherine Sayre, appellees. Although married twice decedent was childless. In 1932 she was married to George W. Kilpatrick who died July 13, 1935, and in November, 1938, she married appellant. On June 29, 1942, appellant qualified as administrator of her estate. Three days later, while searching for decedent's automobile registration card, he found a writing on the face of a blank check, over decedent's signature, which is purported to be her last will and testament, said writing being as follows:
[EDITORS' NOTE: FIGURES IS ELECTRONICALLY NON-TRANSFERRABLE.]
On July 31, 1942, appellant offered said writing for probate and letters of administration cum testamento annexo were granted. Appeal from said probate was taken by decedent's two brothers and sister to the orphans' court, averring that the alleged will was a forgery and praying that the letters of administration cum testamento annexo be revoked and set aside. An answer was filed averring that the instrument was the will of the decedent. After a hearing appellant petitioned the court to award an issue devisavit vel non for trial of the charge of forgery. The hearing judge held the instrument a forgery and refused to award an issue, stating that "no jury verdict sustaining the will could be permitted to stand." This appeal is from the dismissal of exceptions to the said opinion and decree. *Page 326
Contestants' evidence established that as a young girl Gertrude K. Lare had become proficient in shorthand and typing. She was employed as stenographer and typist for a number of years and as private secretary to the General Sales Manager of the Crescent Portland Cement Company until 1929. From that date she was never gainfully employed and rarely, if ever, used a typewriter for any purpose although she owned an Underwood portable machine, the one admittedly used in the preparation of the alleged will. All her correspondence was carried on in longhand.
While the wife of George Kilpatrick she contributed generously to the support of her brothers and sister and to their children. This generosity continued until she died. Upon Kilpatrick's death she inherited considerable money which yielded an annual income of approximately $10,000. In 1937, Dr. Pracht, her physician, introduced her to Marcellus R. Lare, Jr., appellant, who was then employed as a security salesman and had been previously employed in a bank. He was a man of little property. A year and a half later they were married in Miami. Appellant left his position in a Miami bank shortly before the marriage, and in April of 1939 they moved to Wilkinsburg, Pennsylvania. In 1940, decedent purchased a $15,000 home in Mount Lebanon, and took title in the name of her husband and herself as tenants by the entireties. Appellees testified that the married life of decedent was unhappy and that she suffered from high blood pressure and upon several occasions was a patient at a hospital and a sanitorium. She was troubled and disturbed by his failure to obtain employment, his continued attempts to interfere with her friendly relationships with her brothers and sister, and his demand for an increased share of her wealth. He left her for two weeks and lived with his mother. He then accepted a position as accountant for the Rust Engineering Company at Portsmouth, Virginia, and retained this position from December, 1940, until April, *Page 327 1941. During this period decedent visited him twice. Later he returned to Pittsburgh and accepted an appointment to the force of Pennsylvania Bank Examiners which required him to spend much time away from home. J. Kirk Renner, Esq., attended to the small amount of legal work which her property required. He had been attorney for the estate of her first husband.
The check upon which the alleged will was written was identified as coming from the back of her check book. She had been in the habit of removing blank checks, signing and carrying them about in her wallet. The check in question was withdrawn from the back of the book some time between her admission to the West Penn hospital on May 13, 1940, and May 16, 1940.
Immediately upon her decease appellant contacted Renner and inquired whether his wife had left a will and was informed that although she had often mentioned the possibility of making a will providing for her sister and brothers he knew of none. Several days later Renner and Lare had a lengthy discussion at the latter's home about the manner in which the estate would be settled in event of intestacy. After letters of administration had been granted on June 29, 1942, Lare, on July 2, wrote to Renner forwarding numerous papers, among which was the purported will. Renner's advice was to destroy the check. He stated that he would not represent Lare or any other interested party in the settlement of the estate. Numerous attempts were made by appellant to secure Renner as counsel, all of which failed.
Lare sought the advice of appellees' handwriting experts and failed to amply provide his own expert witness with proper samples of deceased's typewriting. At the trial, comparison of Lare's typewriting, made in open court, with that of the reputed will, failed because Lare at that time used an unusually heavy touch. Mr. Nernberg, a handwriting expert, compared the signature on the alleged will with admittedly genuine signatures *Page 328 of the decedent and was of opinion that the former could not have been that of the decedent.
The evidence adduced in support of the validity of the instrument shows that many unimpeachable witnesses agreed that the signature was that of decedent and genuine. Analysis of Mrs. Lare's signatures show them to have similar characteristics with regard to size and variation. Only appellees' witness declared it a forgery. Nernberg failed to take into consideration degrees of variation in writing and made no comparison with exhibits made on or near the date of the alleged signature. Mrs. Lare, around the date of the will, used both dark and green ink. Numerous exhibits were put in evidence in which blue ink was used, to disprove appellees' theory that to be genuine the signature would of necessity have been in green ink. Three people saw Mrs. Lare use the typewriter during the last several years of her life. Although having been ill for a number of years she had not typed professionally for thirteen years. The machine she was using was a small portable machine, not the larger business office type. The typing on the check is neat and the margins well arranged, and not crowded. Comparison of the letters of expert typists, made in the court room, reveal the same errors allegedly existing upon the will. An exhibit typed by one of the professional typists in the court room revealed the same misalignment urged by the appellees as evidence of a forgery. Lare had a habit of completing and punctuating dates; Mrs. Lare wrote partial dates. The contested instrument does not contain any punctuation after the date. Exhibits of actual typing by Mrs. Lare were offered, and Leslie, appellant's expert, used the same for comparison in determining the typing to be that of decedent.
Appellant and decedent had a normally happy life. Any quarrels they had arose over the great amount of gifts of money which were given to the contestants or their children. Her generosity decreased considerably *Page 329 in the last year of her life. Many exhibits refer to the happy marriage and her great desire to be with him whenever possible. Although contestants were continually attempting to create friction between decedent and appellant, on April 24, 1942, she wrote "I want to live and enjoy life and you and our house." Upon numerous occasions she remarked that she would leave all to her husband, thus establishing the disposition of her estate to be a natural one. Explanation is given for the friction arising between Renner and Lare, that being the existence of a $1000 note to decedent, not marked paid or satisfied. The language of the will and use of a blank check are also explained.
The granting of an issue devisavit vel non is not always a matter of right. Section 21(b) of the Act of 1917, P. L. 363, 20 P.S. 2582, provides: "Whenever a dispute upon a matter of fact arises before any orphans' court, on appeal from any register of wills . . . the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof . . ." This dispute must be a substantial dispute: Fleming's Estate,265 Pa. 399, 406; Kane's Estate, 312 Pa. 531, 534; Kline's Estate,322 Pa. 374, 378. The existence of a substantial dispute can only be determined by consideration of the evidence as a whole. "It is the evidence of the fact on the one hand and the evidence in denial on the other, which raises such a substantial and material dispute . . .": Hile's Estate, 310 Pa. 541,544. An issue should be denied where after careful consideration of all the evidence a verdict in favor of the petitioner would have to be set aside as against the weight of the evidence: Hile's Estate, supra, 544; Fleming's Estate, supra, 406. An issue should be granted where the evidence is such that a verdict for either party would be permitted to stand: Hile's Estate, supra, 544; Kane's Estate, supra, 534;DeLaurentiis's Estate, 323 Pa. 70, 78; Kline's Estate, supra, 378. The rule is the same regardless of the party *Page 330 petitioning for the granting of an issue: Kane's Estate, supra, 534. It is the function of the hearing judge to determine whether there is a substantial dispute upon a material matter of fact. He is not, however, to constitute himself the jury. If a substantial dispute does exist, even though the verdict might be at variance with the opinion of the judge, the issue must be granted: DeLaurentiis's Estate, supra, 79.
Upon appeal to this Court the chancellor's decision will not be reversed unless there appears to have been an abuse of discretion: DeLaurentiis's Estate, supra, 78; Dible's Estate,316 Pa. 553, 554. In determining whether there has been such an abuse of discretion by the court below we have considered all the evidence. If a jury were to believe the evidence of appellant, a verdict upholding the instrument as the will of Mrs. Lare could be sustained. On the other hand, if the evidence of appellees were believed, a verdict that the putative will was a forgery could also be sustained. The evidence adduced by appellees is not so positive and unimpeachable that appellant's evidence can be dismissed from consideration as a matter of law. Appellant has established more than a prima facie case. See DeLaurentiis's Estate, supra, 77. It cannot be said as a matter of law that the evidence adduced by the proponent of the will is so inherently weak that a jury should not be permitted to consider it.
We are of opinion that the chancellor erred in concluding that "no jury verdict sustaining the will could be permitted to stand" and in refusing to grant appellant's petition for an issue devisavit vel non. In so doing he has assumed the province of a jury and has determined material facts upon which there is a substantial dispute.
The decree of the court below is reversed and the appeal from the register of wills reinstated, with directions to award an issue devisavit vel non; costs to abide the result. *Page 331