The opinion of the court was delivered, February 15th 1869, by
Sharswood, J.In Bradford’s Will, 1 Parsons’ Select Cases 153, Judge King, although he considered that under the 13th section of the Act of March 15th 1832, Pamph. L. 138, entitled “An act relating to registers and registers’ courts,” the register was bound at the request of any party interested, alleging any matter of fact touching the validity of any testamentary writing, to issue a precept to the Common Pleas, directing an issue to be formed on said fact or facts; yet, held, that when the case was in the Register’s Court on appeal^ then under the 41st section the rule was different. There it is only when a dispute upon a matter of fact arises, that the issue is to be awarded. “Although the act does not say so in words, it must mean that the disputed fact on which an issue is claimed must be a material fact in the contro*46versy and be so regarded by tbe court.” As to the register, the contrary doctrine wag established in Wikoff’s Appeal, 3 Plarris 281, which renders the reasoning in reference to the Register’s Court still stronger. “ The register is empowered, but not required in every case to send every contested fact to a trial at law. The office of a jury is not to guess at the existence of circumstances, in the absence even of a presumption, for where there is no conflict of evidence, there is no contest of facts; and it would be absurd to incur the costs of a trial when there is nothing to try.” Per Gibson, O. J.
Such was the case here. There was no conflict of evidence upon any material fact. Indeed there was not the faintest spark of testimony to impeach the codicil or to show that any improper influence had been exercised upon the mind of the testatrix. It was executed more than a year before her death — at the office of a respectable conveyancer, named as one of her executors in the original will and against whom no charge of misconduct is even insinuated — not one of the parties against whom such a charge is preferred, having been present — and indifferent and disinterested persons, the same who witnessed the will, being called on to attest it. The declarations of the testatrix on her death-bed — when, as her attending physician testified, “ she would have moderate hallucination, not very marked” — declarations not referring at all to the instrument in question, nor to any particular facts, but mere general and vague surmises of some deep-laid plot or scheme to grasp all, would not be entitled to any weight whatever if they were admissible. It may be doubted whether a will in writing could be revoked in that way, even if it appeared that the testatrix had changed her mind in regard to the character and designs of the objects of her bounty. No will would be safe if under such circumstances it could be thrown at large before a jury, in the hope that some' feeling in favor of equality among the next of kin would influence them to set it aside.
Decree affirmed at the costs of the appellant.