I cannot support the decision of the majority which reverses the Orphans' Court of Allegheny County and grants an issue d.v.n. in this case. The learned Chancellor, Judge MILHOLLAND, did not abuse his judicial discretion and his findings of fact are supported by the overwhelming weight of the credible testimony, and are binding upon this Court. This is all the more true because the action of the Chancellor was sustained by the learned court en banc.
In any attempt to apply the rules of law governing the right to an issue in any case, it is necessary to determine what issues of fact have been presented to the Orphans' Court; and then to determine the extent to which *Page 354 these issues have been made by the evidence the subjects of any real dispute.
Although the length of the record might suggest that this is a complicated case, the essential facts can be reduced to a very simple form. Since the Chief Justice, in his dissenting opinion, has marshalled the facts in a very thorough manner, I shall only touch upon them to the extent necessary to support my position.
The controlling issues here, and the Chancellor's disposition of each issue were as follows: First. Is the signature on the alleged will the handwriting of Mrs. Lare; and, if it is, did she sign the document before or after the typewriting was inscribed upon it?
On this point, Mr. Lare, proponent, relies wholly on the testimony of his expert, Mr. Leslie, corroborated by that of several lay witnesses, that the signature is in Mrs. Lare's handwriting. Mr. Lare offered no evidence tending to show that it was written in January, 1942.
To answer this, contestants showed, by physical comparisons of the questioned signature with admitted signatures of January, 1942, and of earlier years, corroborated by the testimony of their expert, Mr. Nernberg, that the questioned signature is quite different from genuine signatures of January, 1942, but very much like those of the earlier years — particularly signatures of May, 1940. These facts, as Mr. Lare's expert conceded, tend to show that the questioned signature was not written in January, 1942, and that it must, instead, have been written in May, 1940, or at some period similarly remote from the date of the alleged will.
Judge MILHOLLAND found, as a fact, that the signature could not have been written in January, 1942. This finding was of great importance, but it required the rejection of no evidence which had been offered by Mr. Lare.
Second. Was the typewriting on the alleged will the work of Mrs. Lare? *Page 355
On this issue, Mr. Lare offered no evidence in the Orphans' Court. Since the hearing, and in this Court, he has attempted to compare the typewriting on the alleged will with that of Mrs. Lare's sister, Katherine M. Sayre, arguing that this comparison shows that the typewriting on the alleged will was the work of a skilled operator. This argument may be ignored, however. To justify its rejection, it is necessary only to observe that Mrs. Sayre was not a proficient typist; or to compare the typewriting on the alleged will with the work of an experienced typist on such a document as a Will or Deed.
To prove forgery of the typewriting, contestants showed that Mrs. Lare had been a highly proficient touch typist of many years' experience in business, but that she had avoided using the typewriter for any purpose during some years before her death — no sample of typewriting known to be her work was produced by anybody at the hearing. These things were not contradicted. Contestants offered also the testimony of their experts, Mr. Nernberg and Mrs. Cornelius, which was corroborated by the physical appearance of the typewriting on the alleged will, showing two things: that it could not have been the work of a skilled typist, and that its defects were the same as appeared in the many available samples of Mr. Lare's work produced on the same typewriter. This testimony was not contradicted by Mr. Lare's expert. It was contradicted only by Mr. Lare's denial, in rebuttal, that he had typewritten the alleged will; and the weight of this denial was lessened by the fact that, when he was required to operate the typewriter during the hearing, and so to provide samples of his work for comparison with that of the alleged will, Mr. Lare adopted a touch and a method of operating the machine which, as his own expert admitted, were most unnatural, and which tended to disguise and conceal the characteristics of his normal work.
Judge MILHOLLAND found, as a fact, that the typewriting could not possibly be the work of Mrs. Lare; and *Page 356 that it was probably that of Mr. Lare. This finding was of the greatest importance; but it required the rejection of no evidence offered by Mr. Lare, except his denial of any part in the making of the alleged will, and Mr. Leslie's opinion that it is impossible to distinguish the work of skilled and unskilled typists.
Third. Was the alleged will a forgery or was it genuine?
To support the alleged will, Mr. Lare relied wholly upon the testimony of Mr. Leslie that the signature was genuine; upon his own denial that he had typewritten the document; and upon the contention that the alleged will was a natural one; i.e., upon letters addressed to him by Mrs. Lare which expressed her affectionate regard for him — but which made no reference to any plan to give him any portion of her estate; upon the testimony of two hairdressers and a comparative stranger, concerning declarations of her plans to provide for him in her will; and, finally, upon argument (refuted by Mr. Lare's own testimony) that Mrs. Lare, by January, 1942, has become estranged from the contestants, and her former friends and business associates.
To prove forgery, contestants relied on the facts that the signature was not written in January, 1942; upon admissions and the conduct of Mr. Lare, which showed that Mrs. Lare's regard for contestants and her former associate had not diminished to the time of her death; upon the testimony of her attorney, Mr. Renner, and various of her friends, which tended to show that she had entertained plans, both before and after January, 1942, to give portions of her estate to the contestants; and — more particularly — upon a multitude of physical facts and admitted circumstances. Among these were such things as the facts that the alleged will was typewritten on a blank check, which had been removed from Mrs. Lare's checkbook in May, 1940; that she had, during her lifetime, given blank, signed checks to persons she trusted — to Mr. Renner, admittedly, and to Mr. Lare *Page 357 also, to judge by the appearance of his handwriting above her signature on a great many of her cancelled checks; that she had carried a blank, signed check in her purse at times shortly before her death; and that the alleged will had the physical appearance of an old, worn blank check on which a fresh, typewritten inscription had been impressed.
Judge MILHOLLAND concluded that the alleged will was a forgery and that no jury verdict sustaining it could be permitted to stand. To reach this conclusion, he relied on the two ultimate findings just described — concerning the signature and the typewriting, plus a number of circumstances which were, without important exception, open to no dispute. In other words, to sustain a finding of forgery, it was not necessary to reject any significant testimony offered by Mr. Lare, except that of Mr. Lare himself.
Thus, since nobody else had access to the typewriter used to write the will, the Chancellor found that, if Mrs. Lare had not typewritten the document, it must have been the work of Mr. Lare. But if he typewrote it — which followed from the finding of fact, discussed above, that Mrs. Lare did not — he was certainly guilty of perjury, and the alleged will was almost as certainly a forgery. Every other known circumstance of the case tended to corroborate that conclusion. Mr. Lare had the essential motive; his own testimony and his conduct at every stage of the matter showed that he desired greatly to obtain his wife's entire estate. He had the opportunity: it was conceded that his wife had not hesitated to carry and to issue checks bearing her signature, but otherwise in blank. The peculiarities of the instrument itself: those of its origin in the 1940 checkbook; those of its alleged discovery after Mrs. Lare's death; and those of Mr. Lare's attempts to maintain it, were all undisputed; and they all pointed to the conclusion of forgery.
The Chancellor's findings of fact in this case have the quality and weight of the verdict of a jury. *Page 358
Mr. Lare's argument implies that this Court can and should review the evidence and determine for itself whether the Chancellor's findings are correct or not. This is a wholly mistaken idea, for several reasons of which the first is based on a well-known rule of equity practice.
In Lowe's Estate, 318 Pa. 497, 178 A. 820, the decedent was an elderly woman, and the contestant her son. By an admittedly genuine will made in 1931, she had conferred many benefits on the son. After her death, a paper dated 1934 was produced and offered for probate as a later will. The son (who stood to lose much under the new instrument) contested probate, contending that it was a forgery, and also that, if it were genuine, the testatrix had lacked testamentary capacity, and had been subject to undue influence. There were conflicts in the evidence on all issues. For example, a number of lay and expert witnesses testified that the signature was not genuine; this being met by testimony of the same kind that it was genuine. The Chancellor found as facts that the testimony in favor of the alleged will was true, and the testimony against it therefore false; and refused contestant's request for an issue d.v.n. His findings were approved by the Orphans' Court en banc. This Court held that such findings of fact are conclusive here (SIMPSON, J., p. 501):
"On the other two questions the hearing judge, later approved by the court in banc, said that, 'On consideration of all the testimony, we are of opinion that at the time she executed the will of January 13, 1934, testatrix was of sound mind and disposing memory, and it was executed after mature deliberation and without any undue influence on the part of any one.' There was ample evidence to sustain this finding also, and hence it would probably be sufficient to say that it should be approved, because 'The findings of a chancellor (as the hearing judge is in such cases, if approved by the court in banc) are entitled to the weight of a jury's verdict, *Page 359 and, where supported by evidence, though in dispute, are controlling in the appellate court; and this is particularly so where (as here) the case depends on the testimony of witnesses, whose credibility must be weighed and passed upon' (Crick v. Paull, 287 Pa. 431; Phillips's Est., 244 Pa. 35, 47; Ligo v. Dodson, 301 Pa. 124, 130); especially if, also as here, the hearing judge saw and heard the witnesses, who testified for and against the views of the respective parties: Phillips's Est., 295 Pa. 349; Robb v. Stone, 296 Pa. 482; Karber v. Goldstrohm, 305 Pa. 470."
In Mohler's Estate, 343 Pa. 299, 22 A.2d 680, the decedent was an elderly woman who made and signed a will at some time after she had been judicially declared a weak-minded person, and by which she gave her residuary estate to an employee of her legal guardian. After her death, it was contested by the beneficiaries of an earlier will, made prior to the period of her legal incompetency. In the Orphans' Court, the burden of proof of her testamentary capacity and of her freedom from undue influence was properly imposed upon the proponent. The evidence was in conflict. For example, the contestants produced the testimony of several physicians, which indicated that the testatrix had lacked the capacity to make a will. Nevertheless, the Chancellor found as facts, in an opinion affirmed by the Orphans' Court en banc, that the testatrix had been mentally capable, and that the alleged will was valid; and refused an issue d.v.n. On appeal, this Court affirmed, saying (MAXEY, J., p. 305):
". . . This burden the proponent of the will met to the satisfaction of the court below. That court declared that if an issue was awarded 'a verdict against the validity of the will could not be allowed to stand'. This court has often said that'in cases of this character, the findings of the chancellorsupported by the court in banc must be considered just asbinding on appellate courts as the verdict of a jury. Of course, if there is no *Page 360 evidence to support them or if it appears from the record that there is a capricious disbelief of evidence then the findings are worthless': Pusey's Estate, 321 Pa. 248, 184 A. 844." (Former italics added.)
Pusey's Estate, 321 Pa. 248, 184 A. 844, differed from the two cases just cited, in that the appellants failed to request an issue d.v.n. until after the hearing Judge had entered a decision against them, holding that the testator in the alleged will (of which they were proponents) had lacked testamentary capacity and had been the victim of fraud and undue influence. In this Court, they urged, nevertheless, that the Orphans' Court had been bound to grant an issue. This Court affirmed the Orphans' Court, saying (KEPHART, J., p. 260):
"At the outset of this case we are confronted by a rule of this court which has the effect of a rule of law. We will notretry this case. The question for us to consider is, first, whether there is evidence to support the findings of fact and whether the findings of fact support the decree. The court below and the court in banc made a thorough review of all the evidence and arrived at certain findings. If the evidence supports the findings and the findings in turn justify the decree, the decree will not be set aside: Kahle's Est., 307 Pa. 212; Phila. Reading C. I. Co. v. Directors of the Poor,311 Pa. 236; Dible's Est., 316 Pa. 553; Taylor's Est., 316 Pa. 557;Lowe's Est., 318 Pa. 497."
(p. 261):
"It must be thoroughly understood that, in cases of thischaracter, the findings of the chancellor supported by thecourt in banc must be considered just as binding on appellatecourts as the verdict of a jury."
(p. 267):
"It is argued that the court should have awarded an issue and it was in error in stating it had no power to award one. The matter is governed by the Act of June 7, 1917, P. L. 363, section 21(a) and (b). The court had *Page 361 power to award an issue if it were expedient to do so. SeeCross's Est., 278 Pa. 170. In denying itself this power the court committed no error prejudicial to appellants. Counsel had opportunity to request that an issue be awarded if it desired one. If the court had refused an issue d.v.n., the question forus would have been limited to determining whether this was anabuse of discretion [italics added]. See Dible's Est., 316 Pa. 553; In re Doster's Est., 271 Pa. 68; In re Mark's Est.,298 Pa. 285; In re Fink's Est., 310 Pa. 453."
This Court will reverse a decision refusing an issue d.v.n. only if it appears that the chancellor has been guilty of an abuse of judicial discretion.
Judge MILHOLLAND'S findings of fact are conclusive in this Court, if they be supported by substantial evidence — the effect of the presence of conflicting evidence will shortly be considered. Under a closely related rule, this Court treats with equal respect the conclusions of the Chancellor from the evidence; and will reverse a decision denying an issue d.v.n. only if it appears that the Chancellor has committed an abuse of judicial discretion, by capricious refusal to pay attention to the evidence, by the application of some improper conception of the law, or in some other recognized way.
In Noble's Estate, 338 Pa. 490, 13 A.2d 422, an elderly, retired widower made a will, shortly before his death, by which he gave his residuary estate to a young man, not a relative, who probably stood in a confidential relationship to him and who was scrivener of the will. The will was contested on the grounds of lack of testamentary capacity and undue influence. The Chancellor refused an issue d.v.n. On appeal, this Court said (LINN, J., p. 491-492):
"This is not a common law action. In Tetlow's Estate, 269 Pa. 486,494, 112 A. 758, we said: 'It is the established law of Pennsylvania that, in cases of the character of the one now before us, the judge is vested with power to decide whether or not he shall submit *Page 362 oral evidence to the jury, even though it be conflicting.' . . . In Dible's Estate, 316 Pa. 553, 554, 175 A. 538, the rule was stated to be: 'We have repeatedly held that in reviewing a chancellor's refusal of an issue devisavit vel non the question for the appellate court to decide is not whether it would have reached the same result had it been acting as chancellor, but rather whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor: Tetlow's Est., 269 Pa. 486;Fink's Est., 310 Pa. 453. As we said in Tetlow's Estate, "When the answer to this question is in the affirmative, the judgment appealed from will not be disturbed." In other words, thechancellor's decision will not be reversed unless an abuse ofdiscretion on his part appears [Italics added]: Doster's Est.,271 Pa. 68; Mark's Est., 298 Pa. 285; Fink's Est., supra.' "
The same rule is stated in similar language in numerous other cases. Among them: Morris Will, 349 Pa. 387, 37 A.2d 506 (PATTERSON, J.): Kish v. Bakaysa, 330 Pa. 533, 199 A. 321 (DREW, J.); Pusey's Estate, 321 Pa. 248, 184 A. 844 (KEPHART, J.); Fink's Estate, 310 Pa. 453, 165 A. 832 (FRAZER, J.);Mark's Estate, 298 Pa. 285, 148 A. 297 (FRAZER, J.); Doster'sEstate, 271 Pa. 68, 113 A. 831 (KEPHART, J.).
The existence of conflicts in the evidence, even on controlling issues, does not create such a substantial dispute as requires that an issue d.v.n. be granted.
It has been observed that, although Mr. Lare now contends that this case presented a "substantial dispute", such as would require the granting of an issue d.v.n., there is really no conflict or dispute about the evidence which supports the controlling findings of fact and the controlling conclusions of the Chancellor. Mr. Lare can point to no fact of controlling importance, except the fact that the signature on the alleged will is probably the handwriting of Mrs. Lare — which is true, with the qualification that it must have been written in *Page 363 1940, or almost two years before the date which appears on the instrument.1
This absence of any real conflict of evidence on any really important point of fact in the case is, however, not of any great legal importance on this appeal; for even if conflict of evidence did exist here, the decision of the court below would still be affirmed, in the absence of an abuse of discretion on the part of that court. The existence of conflicts in the evidence does not create a "substantial dispute", unless the Chancellor finds — or unless a conscientious Judge would be bound to find — that the credible evidence is so evenly distributed between the adverse parties that he would be obliged to approve a verdict for either party. In other words, if the Chancellor finds no difficulty in determining what evidence is credible and what is not, and therefore encounters no difficulty in finding the essential facts, he is bound to refuse an issue. This is the rule in Caughey v. Bridenbaugh,208 Pa. 414, 57 A. 821, and in Phillips Estate, supra, two cases which have been cited in countless later decisions, and which will be mentioned again in this opinion.
Before discussing the cases in which serious conflicts of evidence have been presented, it should be pointed out that there is an important distinction between the status of an alleged will in a forgery contest and that of a document, genuinely executed, but attacked on other grounds. It is this: that if the signature and physical integrity of a will are not in dispute, those facts alone raise a strong presumption that the will is valid; whereas, in contrast, there is no presumption in a forgery contest that the alleged will is genuine. *Page 364
In Cressman Estate, 346 Pa. 400, 31 A.2d 109, a widower, almost eighty years old, made a will about a month before his second marriage, by which he gave a small portion of his estate to his fiancee and the rest to the children of his first marriage. A year later, on his deathbed — and less than a month before his death — he made a new will by which he gave substantially the entire estate to the second wife. It was written by an attorney, in the testator's bedroom, in the presence of the second wife and no other person. The will was executed later by witnesses whom she had procured for the purpose. Less than four weeks later, the testator died. The alleged will was contested on the grounds that he had lacked testamentary capacity and had been subject to undue influence. The Orphans' Court disbelieved evidence offered to show the exercise of undue influence, sustained the will and refused an issue d.v.n. This Court affirmed, saying (MAXEY, J., p. 404): ". . . 'Where a will was properly executed in every particular, a presumption of testamentary capacity and lack of undue influence arises, compelling evidence to upset the will . . .' " — and holding that it requires clear and substantial proof, in contests charging lack of testamentary capacity or undue influence, to meet and overcome this presumption.
Because of this presumption, the fact that a will is admittedly the act of the testator — that it is not a forgery, is nearly always (but not invariably) sufficient to entitle its proponents to an issue at least, if not to an Orphans' Court decree sustaining it without any trial by jury. But there is no such presumption where the issue is forgery. In other words, there is no presumption that the instrument involved here is the genuine act of Mrs. Lare. The burden of proving its genuineness rested upon the proponent, Mr. Lare, at the beginning of the hearing in the Orphans' Court; and, for the same reason, his right to call upon this Court to award him an issue must depend wholly on the strength *Page 365 of the case he presented in the court below, under all of the evidence: he has no presumption to support him, as he would were the contest based on the other grounds.
In Lowe's Estate, which has been cited above, this Court said (SIMPSON, J., p. 502):
" 'In a will contest the judge sits as a chancellor, and must consider all the evidence; and the question is not whether a part of the evidence, standing alone, would support a certain verdict, but whether it would if considered as a whole. Theright to an issue under the statute, depends upon whether thereis a substantial dispute upon a material matter of fact, and,unless there is, the proponent is no more entitled to an issueon the question of forgery than is the contestant on a questionof testamentary capacity. The statute does not confine the dispute to any particular question': Fleming's Est., 265 Pa. 399. (Italics added.)
"In such cases a chancellor 'cannot permit a jury to do what he, as a chancellor, would not do': Central Trust Co. v. Boyer,308 Pa. 402." The language italicized appeared originally inFleming's Estate, 265 Pa. 399, 109 A. 265. It was quoted also in Wagner's Estate, 289 Pa. 361, 137 A. 616, (SADLER, J.).
Contestants have cited in their brief three of the four decisions in which this Court has passed upon the precise question presented here: where, that is, an Orphans' Court has denounced a will as a forgery and refused the request of its proponent for an issue d.v.n.; and the proponent has appealed. These three cases are: Kane's Estate, 312 Pa. 531, 168 A. 681;Fleming's Estate, supra; McAndrew's Estate, 206 Pa. 366,55 A. 1040. The fourth such case is Culbertson's Estate, 301 Pa. 438,152 A. 540, which will shortly be discussed.
In all of these cases, the decision of the Orphans' Court was affirmed. And, what is important here, the evidence in all four cases created disputes of fact of considerably more difficulty and legal substance than any which appear in this case. *Page 366
Thus, in Kane's Estate, supra, the signature on the alleged will was admitted. The genuineness of the document established by the testimony of two subscribing witnesses, by expert testimony, by the testimony of the alleged scrivener, and by unquestioned evidence that the testatrix — a widow without close relative — had been on the most intimate terms with the principal beneficiary. Probate of the alleged instrument was, however, set aside and proponent's request for an issue denied, because there was physical evidence — which the chancellor accepted, although its effect was disputed — that the original first page of the two-page typewritten instrument had been removed, and another page substituted for it; and — more particularly, because there was strong evidence that the proponent had indulged in acts of suppression and fabrication of evidence.2
In spite of the substantial conflicts in the evidence, and although the proponents were able to explain the suspicious circumstances to an extent far greater than Mr. Lare has been able to explain those of this case, this Court affirmed the Chancellor's decision, holding the document a forgery and refusing its proponent an issue.
Kane's Estate, supra, settled the principle relied upon by the court below in this case: that even the presence of an admittedly genuine signature on an alleged will is insufficient to justify or require that an *Page 367 issue be granted, if the contestants offer circumstantial evidence sufficient to satisfy the conscience of the Chancellor that the instrument — considered as a whole — is a forgery.
In Fleming's Estate, supra, it was the signature which was held bad; but the case settled the underlying principle; that circumstantial evidence of forgery may justify the refusal of an issue, even though the facts be genuinely contested in the evidence. The genuineness of the signature of the alleged will was verified by the testimony of one subscribing witness; by the relatives of two other subscribing witnesses; by that of a recognized expert; and by that of a large number of highly respectable people — bankers, lawyers and businessmen. However, circumstantial evidence showed that the document was a forgery: the signature was an exact duplicate and evidently a tracing from the testator's genuine signature on a receipt which was in evidence; and the proponents' alleged discovery of the will and their conduct of the matter (like those of Mr. Lare) were peculiar and suspicious. The Orphans' Court rejected the evidence in favor of the alleged will; held it a forgery; and refused proponents' request for an issue. This Court affirmed.
In McAndrew's Estate supra, the situation was very much the same. The genuineness of the signature of the alleged will was attested by a subscribing witness, and supported by other testimony concerning the preparation, custody and discovery of the paper. However, the conduct of the proponent was suspicious; his credibility was impeached; and it was shown that the subscribing witness, although an honest woman, had not known the decedent, and that the account of the discovery of the will was improbable. The Orphans' Court refused proponent's request for an issue; and this Court affirmed.
In Culbertson's Estate, supra, the same rule was applied, although the complexity of the facts may obscure *Page 368 its part in the decision. Testatrix was an elderly widow, who was survived by a number of children. Sometime after her death, two of her sons — Augustus and James — produced and secured probate of a paper which appeared to be her will, signed by her mark, and to bequeath the larger part of her large estate to James. Twelve years later, a fight between the brothers ended when both were taken to the police station; where Augustus declared that the will was a forgery, which he had manufactured in conspiracy with James.
This led to a contest between James, as proponent of the paper, and his brothers and sisters as contestants. In the Orphans' Court, Augustus repeated his assertion — or confession — that he had written the will in his own hand and forged the signatures of the subscribing witnesses, after his mother's death, at James' instigation. James contradicted this; and offered lay and expert evidence of genuineness. So far, the case required — principally — a choice between the testimony of a self-confessed forger and that of an apparently honest man; but the circumstantial evidence favored a conclusion of forgery. James' account of the discovery of the will was suspicious — it was almost exactly like Mr. Lare's account of the discovery of the alleged will here; and the Culbertson will, if genuine and properly dated, had appointed as executor a twelve-year-old-boy. The Chancellor (GEST, J.) held the paper a forgery, set the will aside, and refused proponent's request for an issue; and the appeal to this Court followed.
Then the case took a turn which shows the importance and weight of the rule concerning circumstantial evidence, established in Fleming's Estate. While the appeal was pending, the proponent, James, obtained leave to reopen the hearing in the Orphans' Court; and at the reopened hearing offered the testimony of a respectable lawyer that, although he had no recollection of its preparation or final disposition, the body of the alleged will was in his handwriting. This testimony, which the *Page 369 Chancellor did not doubt, showed that Augustus' claim of his authorship or forgery of the paper — the only direct evidence of its forgery — must be false in large part. In spite of that, the circumstantial evidence of forgery, though much less forceful or conclusive than that available here, was still sufficient to convince the Chancellor. The Orphans' Court accordingly reaffirmed its original decision refusing an issue; and this Court affirmed that decision, saying (SADLER, J., p. 443):
"The parties were personally heard by Judge GEST, and his findings of fact, attesting the truth of the statements heretofore set forth, approved by the court in banc, fully cover the contentions raised by the respective parties. It is needless, in passing upon the merits of the case, to refer to the unbroken line of authorities which hold that the facts as determined by the orphans' court are conclusive upon us where based upon sufficient evidence, and an examination of the record shows those made here to have been fully justified."
In each of these four forgery cases, the Chancellor was required to decide bitterly contested issues of fact, from evidence containing conflicts far more substantial and difficult — and much less one-sided — than those presented by this record. In each of the four, the Chancellor was, nevertheless, convinced by the evidence that no verdict of genuineness could be a true verdict, and being so convinced he rejected the proponent's evidence, refused proponent an issue, and set aside the alleged will. This method of treating such cases simply applied the rule in Caughey v. Bridenbaugh, supra, and Phillips Estate, supra; and, when we affirmed the Orphans' Courts, in all four cases, this Court simply applied that rule, and the related rules which have been discussed.
DeLaurentiis' Estate, 323 Pa. 70, 186 A. 359, cited by the majority, in no way conflicts with the views I have here expressed. There the court below refused an issue and we reversed on the ground that there was a breach of judicial discretion, because the evidence showed *Page 370 that no Chancellor conscientiously could have found that there was not a substantial dispute. Here, however, the manifest weight of the evidence clearly shows that the purported will is a forgery and the Chancellor properly so found. No judicial mind, in my judgment, could have reached any other conclusion. His findings are overwhelmingly supported by the evidence and therefore should be binding on this Court.
There is nothing in our cases which cast any doubt upon the two rules of law I have defined and illustrated; first, that a Chancellor is required to grant an issue d.v.n. only if after a conscientious study of the evidence as a whole he is not certain of the truth of matters in controversy; and that he can and should refuse an issue and decide the case, if the evidence, considered as a whole, has convinced him that one side of the case is right and the other wrong; and, secondly, the rule that this Court will not, in such a case as this, overrule or reject any finding or conclusion of fact, or reverse any decree, which has been based by an Orphans' Court Judge upon a conscionable, lawful appraisal of the competent evidence.
In this case, there is no substantial conflict or dispute about the evidence required to sustain Judge MILHOLLAND'S essential findings that the signature on the alleged will was not written in January, 1942; that the typewriting cannot have been the work of Mrs. Lare; and that the physical characteristics of the paper and the other relevant circumstances, shown by the evidence, all indicate that the document is a forgery.
Since such findings of fact will not be reviewed in this Court, and since in law they justify the refusal of an issue d.v.n. the decree of the Orphans' Court should be affirmed.
1 In Phillips Estate, 244 Pa. 35, 90 A. 457, a leading case, this Court said (MOSCHZISKER, J., p. 42): ". . . The 'absolute right of the parties' to a trial by jury depends upon 'the strength of their evidence,' and to determine that, on an application for an issue, the Orphans' Court must hear and weigh the proofs as a whole."
2 In Brennan's Estate, 312 Pa. 335, 168 A. 25, the alleged will was made by an elderly woman who had been judicially declared insane. It was contested on the grounds of lack of testamentary capacity. The contestant's request for an issue d. v. n. was denied; and this Court affirmed. It appeared that the contestant had made some efforts to forge a will, and to buy favorable testimony. This Court said (KEPHART, J., p. 342): ". . . This evidence was not impeached on cross-examination, and was denied by appellant only. It is scarcely necessary to comment on the effect of this testimony on contestant's credibility as well as on the good faith of this proceeding. Such conduct may entirely destroy what might otherwise be a strong case." *Page 371