Dissenting Opinion by
Me. Justice Bell:This was a will contest involving the question of whether the testator possessed or lacked mental capacity at the time he -made his will on July 20, 1955, at approximately 4 p.m. If the Orphans’ Court Judge who sat as the jury and the hearing Judge believed the factual testimony of the subscribing witnesses in this cáse — the lawyer-scrivener and Rose Benedict — testator, without the' slightést doubt, had mental capacity-; if-not)" the '“opinion” evidencé of the doctors would'prevail. In the last analysis, it’s as simple hs that!
As Justice Stearns said in Glesenkamp Will, 378 Pa. 635, 107 A.2d 731, where an Orphans’ Court Judge sat as Judge and jury and found that the testator did not'have testamentary capacity (page 636) : “The findings óf -fact are, therefore, equivalent tó a verdict of a jury-.' On "appeal-the function of - hh • appellate court-is td-detérmihé whether' or ‘not. the' -hearing judge’s -find*390ings of fact and conclusions of law, approved by the court in banc, are sufficiently supported by the evidence.” See to the same effect: Kerr v. O’Donovan, 389 Pa. 614, 635, 134 A. 2d 213.
Ermindo Masciantonio, hereafter called the testator, was married in 1904. He came to the United States from Italy in 1905. IJe left his wife in Italy nine months after their marriage and never saw her again. He lived for a period of 24 years (from 1918 to 1942) in Conshohocken with a mece, Antoinette D’Allesandro (who died in 1937) and her family, consisting of her husband and four children. Antoinette’s four children are the devisees of his four pieces of real estate in Conshohocken. Antoinette’s widower married in 1942 Mrs. Margaret D’Allesandro, — a disappointed legatee — and Antoinette’s children went elsewhere to live. Testator lived alone the last two years of his life. Testator after 1942 used to visit Antoinette’s children and his first cousin once removed, Rose Benedict, the residuary legatee, who continued to see and look after him until his death. He stated orally and in his will that Bose should attend to his funeral and that he should be buried with her mother and father.
Testator did not will his estate to his wife, whom he specifically disinherited, or to any of his foreign nephews and nieces whom he hadn’t seen; he left his property in his will to his four grand-nephews and grand-nieces with whom he had lived for 24 years, and to the Church, and- to Róse Benedict, his first cousin once removed. I believe that under the facts and circumstances this was a natural will.
Testator’s wife and his nine nephews and nieces who live in Italy, contested the will on the ground that testator lacked mental capacity. If they were successful, hone of ilis gráhd-nephéws and grand-nieces with-*391whom he lived in Oonshohocken for 24 years or Rose Benedict or his Chnrch would receive anything. The Orphans’ Court Judge, who sat as jury and Judge and who saw and heard the witnesses and who believed the testimony of the proponents, including particularly the subscribing witnesses (one being the attorney who drew the last will, and the other the residuary legatee), and Marta G-iondonato (a disinterested witness who witnessed a hand-drawn will dated July 19, a replica of the typewritten will which testator executed the next day) found that the testator had testamentary capacity.
If the jury’s verdict is sustained, his wife will receive property with a total value of over $11,000 ;* each of his favorite grand-nephews and grand-nieces will receive a piece of real estate in Oonshohocken valued at $10,000; his Church will receive $3j000; and Rose Benedict, his first cousin once removed and residuary legatee, will receive $11,000. If the will is not sustained, his wife, whom he has not seen for 49 years, and his unseen nephews and nieces in Italy will receive all of his estate — the Church and his grand-nephews and grand-nieces with whom he lived in Oonshohocken for 24 years, and his favorite first cousin once removed, who was to look after his funeral, will receive nothing.
The law is well established that “where a will is drawn by decedent’s attorney and proved by subscribing witnesses, the burden of proving lack of testamentary capacity . . . can be sustained only by clear and strong or compelling evidence of lack of testamentary capacity . . .”: Higbee Will, 365 Pa. 381, 382, 75 A. 2d *392599; Williams v. McCarroll, 374 Pa. 281, 97 A. 2d 14, and cases cited.
It is also well established that opinion evidence (of medical experts) is of little weight against the direct factual evidence of the scrivener and the subscribing witnesses, and should be entirely disregarded when contrary to established facts (i.e. established by credible testimony) revealing mental capacity: Cookson’s Estate, 325 Pa. 81, 88, 188 A. 904; DeMaio Will, 363 Pa. 559, 563, 70 A. 2d 339; Phillips’s Estate, 299 Pa. 415, 149 A. 719; Klein’s Estate, 207 Pa. 191, 56 A. 422.
In DeMaio Will, 363 Pa., supra, the Court said (page 563) : “In Cookson’s Estate, 325 Pa. 81 (1937), the late Chief Justice Kephart said, at p. 88: . . expert medical opinions are of little weight when based upon insufficient facts, or an erroneous conception of testamentary capacity, and should be entirely disregarded when contrary to established facts revealing mental capacity.”
In Cookson’s Estate, 325 Pa., supra, the family doctor had attended the testatrix for a considerable period of time and saw her approximately S hours before the codicil was executed at noon. The doctor testified that at noon she was extremely toxic and in her condition her mind could not have been clear, nor would she have the mental capacity to make a codicil; “her condition was the same, if not worse, at 3 o’clock as at noon . . . .” With reference to this testimony, this Court said (page 88) : “This court has stated on many occasions that expert medical opinions are of little weight when based upon insufficient fads or an erroneous conception of testamentary capacity, and should be entirely disregarded when contrary to established facts revealing mental capacity.* . . . Mr. Foster [who *393was the scrivener and a subscribing witness] bad been decedent’s agent for a long period of time and was fully conversant with her ability to supervise her business affairs. If she loas as mentally alert as he testified and actually conversed with him in the manner related by him, it is evident that she possessed testamentary capacity.” The same rule about “opinion” evidence was reiterated with respect to family or attending physicians in Phillips’s Estate, 299 Pa. 415, 149 A. 719, and in Klein’s Estate, 207 Pa. 191, 56 A. 422; and appears to be recognized by the majority. The majority opinion says: “The rule erroneously relied upon by the court below finds its most frequent application in two situations. In the first the medical witness has neither seen nor examined the decedent; .... In the second type of situation the medical witness testifies concerning observations which he made while examining the decedent some time before or after the execution of the will. We have consistently and correctly held that this more or less learned conjecture concerning the effect that pre-existing or post-existing conditions might have had upon the decedent’s testamentary capacity at a later or prior date is admissible but is entitled to little weight :* Williams v. McCarroll, 374 Pa. 281, 293, supra; Conway Will, 366 Pa. 641, 643, *394supra; DeMaio Will, 363 Pa. 559, 562, 563, supra; Sturgeon Will, 357 Pa. 75, supra; Aggas v. Munnell, 302 Pa. 78, 86, 152 A. 840; Graham’s Estate, 225 Pa. 314, 317, supra.”
The majority opinion does not grant a new trial on any question of lack of credibility of the attorney who drew and witnessed the will, and of the subscribing witness, or on the weight of the evidence (which, as we shall see, favored the proponents), because under the authorities above cited that is not legally possible. The majority grants a new trial solely because the court below treated the testimony of the attending physicians as opinion evidence — which it unquestionably was — “and applied a well established legal principle— *395the weight of opinion evidence as against direct evidence — to a situation where the evidence [of the doctors, and of the attorney-scrivener and the subscribing witnesses] was identical in quality.” In other words, the majority opinion treats the clear, direct, unequivocal, factual* testimony of the attorney who drew the will and the factual* testimony of the subscribing witness and of Marta Giandonato as if it was merely “opinion” evidence, which it equates with the opinion* evidence of the doctors. This is contrary to all the cases and unwittingly, although effectually, emasculates the well established rule which it professes to uphold. Equally important, the majority opinion fails to erect a guidepost or rule to govern future cases where this exact question will often arise.
*396Although both the majority opinion and this dissenting opinion agree that the sole question involved is whether the • doctors’ • “opinion” evidence can he equated with the evidence of the attorney who • drew and witnessed the will and of Rose Benedict, the other subscribing witness, and of Marta, nevertheless, the majority opinion inadvertently treats the case, in large part, as if the question involved was (a) whether or not an issue should be granted, and (b) what credibility and weight should be given to the testimony of the proponents’ witnesses. Although it is immaterial, the majority opinion then dissects the testimony of the proponents’ witnesses in order to show the weaknesses in their case. It could more easily and wisely have analyzed and portrayed the weaknesses, the contradictions, the inconsistencies and the conflicts in contestants’ evidence, particularly the testimony of Dr. Rap-paport — this, however, it failed to do.
Contestants presented 12 witnesses — only the testimony of Dr. Rappaport and Dr. Carfagno is. material in this appeal. Proponents presented 10 witnesses— only the testimony of Mr. DiGlacomo (the attorney who drew and witnessed the will), and of Rose Benedict (subscribing witness), and of Marta Giondonato, a disinterested witness who was a subscribing witness to testator’s will of July 19th, (and several additional lay witnesses who contradict Dr. Rappaport), is-material in this appeal. Nevertheless, the majority opinion, by going far afield, compels us to review some of the testimony.
Illness
Testator was a hard-working man. Although 68 years of age at the time of his death, he worked as a foreman at the Alan Wood Steel Company in Norris-*397town until Ms admission to the hospital on July 10, 1955, 11 days before his death. He often worked two consecutive 8 hour shifts at the steel plant..
On July 10, 1955, testator felt ill and was taken to the Sacred Heart Hospital in Norristown. On July 19th, having been advised by a priest — according to the evidence of both the contestants and the proponents ; — to get a lawyer to make his will, he sent for an attorney (Mr. DiGiacomo) whom he told in- detail the persons to whom he wanted to give each of his four pieces of real estate, $3,000 to the Church, and the rest to Eose Benedict, as well as the other provisions clearly set forth in his will. Dr. Bappaport expressed his opinion (for contestants) that because of' testator’s stuporous condition, this was impossible. Mr. DiGia-eomo knew Eose Masciantonio Benedict very slightly; he did not know testator’s devisees, or who were the testator’s relatives or their names, or what real or personal property he had; so that it would-have been impossible for him to have written such a will unless the testator or Eose Benedict gave him the information. DiGiacomo testified that testator gave him all the detailed directions about the gifts and provisions he wanted to make in his will, and that no one prompted the testator or made any suggestions to him. The jury and the Judge believed DiGiacomo and Eose Benedict and Marta Giondonato who corroborated him.
Mr. DiGiacomo wrote down in longhand on July 19th exactly what Ermindo Masciantonio told' him he wanted in his will, and the will was then witnessed by him and by Eose Benedict, the residuary legatee, and by a disinterested witness, Marta Giondonato. Eose Benedict and Marta corroborated DiGiacomo about all the directions testator gave DiGiacomo. Mr: DiGia-como thereupon returned to his office, made a typewritten copy of the will so that it would be neater, and *398on the following day, to wit, July 20th, returned to the hospital (as he promised testator he would) with Eose Benedict at sometime after 3 o’clock p.m. He then went over the will with the testator paragraph by paragraph, and explained its contents to testator paragraph by paragraph, all of which testator approved. Testator being unable to sign his name, placed his mark opposite his name at the place designated by Mr. DiGiacomo. DiGiacomo and Mrs. Benedict then signed their names as subscribing witnesses. Their testimony will be more fully hereinafter discussed. Suffice it to say at this time, that the testimony of Mr. DiGia-como was very clear, direct, detailed and unequivocal, and his testimony and that of the other subscribing witness, Eose Masciantonio Benedict, who corroborated him as to what occurred on July 19th and July 20th, and of Marta Giondonato as to what occurred on July 19th, was believed by the jury and Judge who saw and heard all the witnesses.
On July 20th Eose Benedict and Marta Giondonato went to testator’s hospital room at about 6:30 p.m.; at 6:45 p.m., Peter D’Allesandro, grand-nephew of the decedent, also visited the testator who was sitting up in bed. They narrated testator’s conversation with them; Peter shaved testator about 7 o’clock p.m. on July 20th.
The majority opinion seeks to completely discredit the testimony of the lawyer, DiGiacomo, who drew the will, and of Mrs. Eose Benedict, the other subscribing witness, who corroborated him, and of Marta Gion-donato, who spoke and understood only Italian, and who was present when testator signed his will on July 19th, by pointing out that Marta said most of the conversation on July 19th was in Italian, whereas DiGia-como said most of it was in English. Marta did not testify about testator’s conversation with DiGiacomo *399on July 20tli. How unjustifiable that conclusion is will be instantly apparent from Marta’s testimony.
Marta Giondonato was an entirely disinterested witness. She testified that she and Rose Benedict and her father and Mr. DiGiacomo arrived at the hospital on July 19th about a quarter to six; that she heard the testator speak to DiGiacomo. She then pertinently testified: “Q. Will you tell the court what you heard the decedent say to me? A. I heard him say that he had four houses; that he wanted to give one house to each of the four nieces or nephews. Then, he said that he desired that his niece, Rose Benedict would — first of all, he hoped that he would return home; but, if he did not return home, that he wanted her to take care of his funeral. He wanted to be buried in the same grave, or in the same place where Rose’s mother and father were buried so that they would be together in the hereafter. And, he also desired that whatever was left would go to Rose. Said he wanted to leave three thousand dollars to the church, and, whatever was left, was to go to Rose. Q. Did you hear him make any statement concerning his wife in Italy? A. Yes. Q. What did he say? A. 1-Ie said he was leaving the insurance to the wife. Q. Did you visit the decedent in the hospital at any time before the 19th of July? A. Yes, before that time and also after that date. Q. On any of those occasions, did he seem to you that he did not realize what he was doing? ... A. Yes, he understood very well. . . . Q. I show you what has been marked for identification exhibit ‘B’, [testator’s will of July 19th] and ask you if you can identify the signature appearing as the last signature on the second page thereof?” She then identified her signature to testator’s will of July 19th and testified she saw Mr. DiGiacomo sign testator’s name to the document and saw testator make *400bis mark on tbe exhibited document. She also saw Rose M. Benedict sign her name.
On.cross-examination Marta testified: “Q. Did you hear everything Poppy said about his will, to Mr. DiGiacomo? A. Yes, I understood the most of it. He said some words in English, I did not understand that. Q. Did he speak in English? A. Sometimes he says; but, he talked in Italian, generally. Q. Could you tell us whether most of this conversation concerning this will was either in English or Italian? A. It was in Italian. Otherwise I would not have been able to understand. . . . By the Court: Q. Did you hear Poppy speak at all about his church? A. Yes. Q. What did he say? A. Said he wanted to leave three thousand dollars to his church. Q. In talking about his four houses, did he talk about the four houses in Italian? A. Yes, and then, Tie also said in English about that; because the lawyer many times would repeat the things that Poppy said. . . . Q. Did he speak anything about his wife in Italy? A. The only thing I heard him say about his wife was that he was leaving his insurance to the wife.”
Mr. DiGiacomo testified, as will hereinafter fully appear, that on July 19th most of the conversation between him and the testator concerning the will was in English. Marta testified that most of the conversation was in Italian. That honest difference in recollection or counting is de minimis. Certainly it is an obvious non sequitur to say that Marta’s detailed testimony as to what she heard testator tell his attorney in Italian to place in his will, — namely, he wanted to leave his real estate to his nephews and nieces, naming them, $3,000 to the Church, and all the rest to Rose — was thus entirely discredited and “worthless”.
The majority opinion also implies that the testator’s lawyer and the proponents of his will must have *401been lying when they testified that testator gaye his attorney, DiGiacomo, his directions about the persons to whom he wanted to leave his estate because they failed to call the priest who, on July 19th, advised the testator to get a lawyer to draw his will. Contestants’ star witness, Mrs. Margaret D’Allesandro, who for years had not spoken to her step-children (who are the testator’s devisees), admitted that the priest saw testator on the afternoon of July 19th and advised him to get a lawyer to draw his will. Does anyone for one moment believe that a priest would advise a man who was obviously dying, to get a lawyer, if the man was so stuporous that it was impossible for him to make a will?* And in view of Mrs. D’Allesandro’s testimony of her conversation with testator the first four or five days he was in the hospital and on July 19th, what reliance can be placed on Dr. Rappaport’s opinion about testator’s “stuporous” condition on those days!
It is an indisputable fact that the jury and the Judge believed the lawyer and the other subscribing witness and consequently found that testator had the mental capacity to make his will on July 20th. While the majority’s attempt to discredit proponents’ evidence was an utter failure and no rejoinder was necessary, it is equally clear that its analysis of much of the evidence was immaterial, in view of its position: A new trial should be granted solely because the hearing Judge held that the opinion evidence of the doctors was equal to the factual evidence of the attorney and of the subscribing witness, Rose Benedict, and of Marta Gion-donato.**
*402The Eeal Issue
While the testimony was conflicting, as is usual in will contests, the contestants’ entire case boils down— as the majority finally admit — to the opinion evidence of Dr. Rappaport and Dr. Carfagno. Dr. Rappaport was not only contradicted by Dr. Carfagno as to testator’s capacity prior to July 20th, but also by 8 witnesses (including DiGiacomo and Rose Benedict and Marta Giondonato) for proponents, but also by contestants’ star witness, Mrs. D’Allesandro, who said testator seemed all right until the last four or five days.
When testator was taken to the hospital on July 10th he was examined by Dr. Rappaport, who testified that he was mentally depressed and greatly jaundiced. On a subsequent examination, Dr. Rappaport found a mass in his abdomen and swelling of the ankles. Dr. Rappaport testified that on July 10th when he was admitted to the hospital he could only talk with difficulty; that on July 19th he was unable to talk; that because of his stuporous condition he was absolutely not in condition to give the information which was contained in his will of July 19th and of July 20th; and that it was not possible for him to have had a lucid interval on July 19th or 20th.
On cross-examination Dr. Rappaport contradicted his direct testimony and said: “He was able to express himself on the tenth very clearly and he used good English.and he had intelligence.” Dr. Rappaport admitted that prior to July 20th he never noted on the hospital record (which he made out) that testator was stuporous; that he saw him every day for only 10 to 15 minutes, except on July 20th, when he saw him around 11 o’clock in the morning for about 10 or 15 minutes, and ¿gain at 5 o’clock in the. afternoon for 5. *403minutes. He further admitted that on July 14th he entered in his own handwriting in the hospital records: “Clinically the patient much better. Jaundice still present. Patient will go home Saturday” [to his home where he lived all alone]. Nevertheless, he further testified “that this man on the 20th and even on the 10th and any time in between could not execute this copious will” [the will was short and simple]; that on July 20th testator could not communicate with any individual or sign a will between 11 o’clock in the morning and 5 o’clock that evening; that he did not have strength to talk; that he did not think testator could recognize any of his relatives at around 6 o’clock on the night of July 20th.* Testator, who died of carcinoma of the liver, jaundice and hepatitis, never received any narcotics or sedatives the whole time he was in the hospital.
Dr. Carfagno was called in by Dr. Bappaport as a specialist on July 11th. He examined testator on July 11th between 1:15 and 2 p.m. and found him responsive (Mid that the patient did not have too much difficulty in expressing himself. The doctor estimated he was with the patient on July 20th five, perhaps ten, minutes. He was asked this additional question on direct examination: “Q. You have read this will, Doctor. I want your opinion, as a result of this examination and your observation of this patient that you made on the 20th of July, was this patient able to disposé of his property and sign this will as he is alleged to have *404done? A. From the observations I made on tlie 20th it would be my impression that he would not be able to.”
On cross-examination, Dr. Carfagno testified: “Q. You will not venture an opinion then on July 19, 1955, whether or not this man had that mental capacity Avith which to execute a Avill? A. I don’t think I am in a position to say what happened on the 19th. . . . Q. Doctor, if someone were to say to you that in around six o’clock on July 20th that they visited the patient, that the patient recognized these visitors, and that then the visitor proceeded to shave the patient, would you believe that narrative? A. I would be surprised, but I figure there is a possibility, not very probable.” Dr. Carfagno then told the Court, in answer to the Judge’s questions, that at the time he saw testator on July 20th at about 1:30 p.m. for 5 or 10 minutes, “he was mot lucid. It is possible that he could have lucid intervals from the time I saw him until the time he died. This appears to me unlikely based on my previous observations. Q. Unlikely, but it is possible? A. It is possible.”
It is obvious what a tremendous difference there is between the testimony of Dr. Rappaport and Dr. Car-fagno.
Far more striking and in view of the question involved, far more important, was the testimony of the attorney, Bernard V. DiGiacomo, who was believed by both the jury and the Judge. DiGiacomo was called by Mrs. Benedict on July 19, 1955, at about 5 o’clock. As a résult of that telephone call he went with her and her father* and Miss Marta Giondonato to testator’s *405room in tbe Sacred Heart Hospital, arriving there about 5:40 p.m. The patient was obviously jaundiced and ill. Testator remarked that he knew DiGiacomo because his brother Lou had worked for him. DiGia-como asked testator to squeeze his hand, which he did. He then testified that testator’s responses were very clear to him; that he understood his business there; that he was responsive to the questions DiGiacomo put to him; that they discussed how he felt, how he was eating; whether everything was going all right; how the nurses were treating him; and other small talk. There then occurred the following exceptionally important factual evidence which can best be portrayed by quoting it:
“Then, I did explain to him why I was there; that Mrs. Benedict had called me, and that he had made known his intentions to her that he wanted to make a testament and he wanted to make sure that he could give away his property before he died. And he said: ‘Yes, that’s what I want you for.’ And then, I began interrogating him about the will. Q. As you spoke to him about the will, what did you do? A. Well, I recall that I said to him something about: ‘Now, you want your funeral expenses paid for, and you want your burial paid for, and, if you owe anybody money, you want to pay them, too. Is that right?’ And, he started to talk to me in Italian. Well, I don’t speak the Italian language, and I never trust myself too much on understanding it. And, I told him. I said, in Italian to him, as best I could say it, I said: ‘Talk to me in English.’ And, he would —told me in English, ‘Yes, it’s all right to pay all my bills.’ Then, I said to him: ‘Now, what do you want to do with your property?’ He then would name a property. He would say: ‘My house.’ And, I would say: ‘Well, where is it?’ He would give me the address, just as they appear in this *406will and in the will which was probated. And, I would ask him who he would want to give it to, and he would tell me. And, I would ask him: ‘Is he a cousin of yours, or something like that?’ He called these children, the D’Allesandros, his nieces and his nephews. Q. To interrupt you for just a moment. As he would name these parcels of real estate and say what he wanted done with them, were you simultaneously, drawing this will, or this exhibit, whatever it is that is before you — instrument, that was executed on the 19th? A. What I would do is: after he had told me he wanted to give a house, and I would ask him. these questions, and what not, and after I got it all straight, I would write it down, and then repeat it back to him and ask him if that is what he meant. And then he would say: ‘yes.’ For instance, I remember his coming down to the two D’Allesandro girls, Ann D’Allesandro and Mary D’Al-lesandro, and he left a property to Ann D’Allesandro. And, I said to him: ‘Well, is she married?’ He said: ‘Yes.’ I said: ‘What is her married name? What is her name now?’ He said: ‘Oh, I don’t know,’ he said. I remember looking up to ask Eose Benedict, because I felt pretty sure that she was familiar with these D’Allesandros — if she knew their married names. And, she did not. And that is why, in the will, it appears that the marriage name was unknown, or, as it appears here, ‘The former Ann D’Allesandro,’ and, ‘The former Mary D’Allesandro.’ Then, he went on down through the rest of the will and he came down to the church. And, by the way, I want to say now, I heard Mrs. Gion-donato here make a statement on the stand that he talked mostly in Italian. Well, that’s not true. As a matter of fact, he would have to speak to me — I would say more in English, because no matter what he would say in Italian, I would want him to repeat it in English. And, some of the things he would say in English, *407first. Now, be came down to the church, and he wanted to give three thousand dollars to the church. I did mention the name of the church. That’s correct. I said to him, I said: ‘Now, what church do you want to give this to?’ He said: ‘You know, the Italian church.’ I said: ‘The Italian church in Conshohoeken?’ He said: ‘Yes.’ So, being familiar with there is only one church in Conshohoeken, and that’s why St. Cosmos and Damian Church appears in the will. Then, after he got through with that, he said that that was all the property that he had. And I said: ‘Now, do you have anything beside property?’ Because, being familiar with the old Italians, when they talk about property, they talk about real estate. I said: ‘Do you have anything else? Do you have a bank account, or anything like that?’ He said: ‘Oh, yes. I got money in the bank.’ I said: ‘What do you want to do with that?’ I said: ‘You ought to leave it to somebody. You are making a will, you ought to leave the rest of whatever you have to somebody else, or, to one of these children.’ So, he pointed down to Bose, and he said: ‘You give it to Bose, because, Bosie is going to bury me and take care of me if I die.’ I said: ‘Do you want her to take charge of the funeral, and the burial?’ He said: ‘Yes.’ Now, I did talk to him about the fact that he had a widow in-Italy, and I said: ‘Now, what do you want to do about this wife of yours in Italy?’ And, he said: ‘I don’t want to give, her anything.’ So, I had explained to him, as best I could, without using any technical terms, that she might have a right to come over here, or, through some representative, make a claim against the will; and, if she did, how she might be successful. And, he understood. He understood me. And, I went a little further, and I asked him: ‘Now, if she Avins; if she comes over here and she is entitled to something, who do you want her to take it *408from? Do you want her to take it from one of them, from all of them?’ He said: ‘No, each one has to give their share.’ Now, as to the executor in the will: I explained to Mr. Maseiantonio that he should have an executor in the will. Now, as I recall it, he didn’t understand — he didn’t quite understand that too well, and, I think I used the word administrator. He understood that a little better. I think, it, more or less, corresponds to the Italian word. And he said: ‘Well, I don’t know,’ he said, ‘how about you?’ And, I didn’t know whether he meant about I being the executor, or, what did I think. I interpreted it to be the latter. And, I told him that I would recommend that some bank be appointed. And, he said: ‘Well, you take care of it. Whatever you say is all right.’ We came to the end of the will. Of course, actually, I had asked Bose Benedict, on the way up to the hospital, whether or not he could write his name. But, anyhow, I did ask him, prior to his affixing his mark, whether or not he could write his name. He told me he couldn’t. I asked him if he could make a mark and he said: ‘Yes,’ he could make a mark. I said to him: ‘Now, somebody has to write your name here. Who do you want to write your name on here?’ He said: ‘You write it.’ So, I wrote his name on the will, leaving a space between the surname, the Christian name, and the last name, and asked him, then, I said: ‘You want to sign it?’ He said: ‘Yes.’ I said: ‘Here.’ And, I handed ■him the pen and he made an X on this will. It was a little — his hand was not real steady, and yet, I wouldn’t say it was shaky. But, the mark was legible, but, it wasn’t real firm. And, I said to him, I said: ‘Do it a little harder. Make it a little firmer.’ And, he went over it. And, I said to him — oh, by the way, I had, at that time — prior to that time — I had asked this woman back here, Mrs. Giondonato and Mrs. Bene-*409diet to come over prior to this time — and, I said to Mm, I said: ‘Now, look. You have to have witnesses on a will like this.’ I said: ‘Now, who do you want to witness it?’ And, he said to me: ‘Well, everybody.’ And, there were just the three of us there in the room. And, the furthest one, I think, was Rose Benedict, and, she couldn’t have been standing, oh, any further than this (indicating) away from him. Q. You are indicating about five feet? A. Or less; in that vicinity. So, I signed my name, first; Rose signed her name. And then, Rose, as I recall it, explained to Miss. Gion-donato, in Italian — because, she had said this to me in English — that he just asked her to sign her name on this will. That is, as to the execution of the will. Q. Now, with respect to each of the paragraphs which appear on that will, would it be fair to say that there was conversation in both Italian and in English? A. I don’t want to say that, because, I am not sure that everyone of them was in Italian. Everyone of them was, definitely, in English. Q. With respect to many of the paragraphs, at least, might it not be said that there were remarks made in Italian, as well as in English? A. Oh, yes. Q. And, as these remarks were made in Italian, were they, in your opinion, made within the hearing of Miss Giondonato? A. Yes. . . .”
“By Mr. Lowe : Q. Now, Mr. DiGiacomo, after, this instrument, which has been identified as exhibit ‘B’, which' is now in evidence, was executed by the decedent, what arrangements, if any, were made with respect to the following day? A. Before leaving the hospital, after tMs document was executed, I told the decedent that I was going to take it down to the office and make another one on the typewriter, so that it would look neater, and bring it back and have him sign it again. And that is what I did. Q. The following day, was of course, July 20, 1956? A. ’55. Q. 1955. *410I beg your pardon. Please tell us wbat happened on that day. A. I would say it was some time after three o’clock. I had made arrangements to pick up Eose ■Benedict to go back to the hospital. I picked her up, 'and got up to the hospital somewhere in around quarter to four that afternoon. Q. Was there anybody there when you arrived? A. There was not. Walked into the room, walked over to the bedside. And, I Avouldn’t say he was sleeping but, I would say that he just wasn’t aware of anybody being in the room. Looked like he might have been day-dreaming. I said hello to him, and he looked up, and he saw me, and he saw Mrs. Benedict, who had walked around the side of the bed with me. He said: ‘Hello.’ I asked him how he was feeling. He told me he wasn’t feeling too good; he wasn’t feeling as good as he was yesterday. I asked him to shake my hand, again. Which he did. I said: ‘Squeeze it.’ Which he did. And, he had about —almost as much strength as he had the day before. At least, in his hand. So, then, I told him that I came back with that — with the will he made yesterday, except it was made on the typewriter and, it looked a little bit neater. And, I told him that I wanted him to listen to me — I guess I was just being a little overcautious — but, I read the will to him verbatim, just as it was drawn. And then, I took each paragraph separately, and went over the paragraph, explaining to him exactly what was in it, and asked him if it was all right, if that was the way he wanted it. And, he would reply, ‘Yes,’ or ‘Okay.’ Went through the complete will that way. ‘Well,’ I said, ‘you’re sure you want to make this will?’ or something to that effect. He said: ‘Yes,’ he said, ‘it’s the same like it was yesterday.’ And, we went through the ritual of exécut-ing the will. And, I told him at that time, again, I went through the fact that someone had to write his *411name. He asked me to write it. Someone bad to witness it. He said: ‘Well, you and Rosie.’ I said: ‘All right.’ And, we witnessed the will. Q. Getting down to the execution of the will, would you please tell the Court precisely the manner in which that instrument was executed? A. I then asked him if he could write his name. He said: ‘No.’ And, I asked him if he could make his mark. He said: ‘Tes.’ I said to him, I said: ‘Now, someone has to sign your name. Who do you want to sign it?’ He said: ‘You.’ I wrote his name, leaving a space between his first and his last name. Then, handed him the pen. I said: ‘Now, you make the cross over here.’ And, he made the cross. I took the pen, and, I wrote over the top of the X ‘his’ and below it ‘mark,’ and then, explained to him — or, it may have been even before, that we had to witness the will. But, anyhow, he said: ‘You and Rosie sign it.’ I think I signed it first. I don’t have it here, but I probably would. And then, I handed the pen to Mrs. Benedict, and she signed it. . . . Q. Did you know any of the de-visees named in this will? A. I only know — I do hot know any of the four specific devisees; never knew them before. Q. The first time you ever heard their names mentioned, then, was on the 19th? A. Let me say this: I have heard the name of D’Allesandro, because, there are a few D’Allesandro families; but, I did not know any of these devisees in this will. Q. Now, with respect to the residuary legatee. Did you know Mrs. Benedict? A. Yes, I knew Mrs. Benedict, but, I would say, in all the years that I knew her, I don’t think I spoke to her any more than ten minutes in all those years, prior to this occasion. . . . Q. Did you know, prior to July 19, 1955, who owned the several parcels of real estate which aré concerned here? A. No, I did not. Q. You knew nothing about that real estate? A. Absolutely nothing. Q. During the time that *412you spoke to tbe decedent, either on July 19th or on July 20th, was there any prompting from anyone with respect to the dissolution of this man’s estate? A. No prompting whatsoever. . . .”
“By Me. Lowe: Q. Is there anything else that you care to add, with respect to the execution of the last will? A. Only say this: that there never was, in my mind, any doubt whatsoever, that this man fully realized what he was doing, and fully appreciated the fact to whom he was leaving the property. There was never the slightest doubt — I took all precautions which I know in engaging him in conversation and making sure his answers were responsive, and going over with him, not only once, as on the 19th, hut, also, again, on the 20th, and, I do not know- — did not know at that time— the decedent, the fact that he owned this property which it eventually turned out that he did own, or anyone of the devisees of the will who were not in that room. I only know Bose Benedict, I would say, prior to that time a ten minutes’ talking in all the years that I knew her. ... I feel I am better qualified to determine whether or not a man has testamentary capacity, than any one else. And, if there was the slightest doubt in my mind, after I had spoken with him, and, purposely had this small conversation with him, I would have gone over for a doctor and a nurse — -but, preferably, a doctor. . . . Q. And didn’t you consider it a bit irregular to have a residuary legatee sign this will? A. Mr. Dennis, I will say this to you: over a period of four or five years, I have written, perhaps, a hundred and fifty wills, and, on those one hundred and fifty wills, I would say that out of one hundred and forty of those cases, one of the witnesses is a beneficiary under the will, because, that is usually the one who accompanies the person to your office.”
*413The statements hereinabove quoted which the testator made to Mr. DiGiacomo in the presence of Rose Benedict and Marta Giondonato as to whom he wanted-to leave each piece of real estate, and the gift to the church, and the gift of all that was left to Rose, and his funeral arrangements, and nothing for his wife— these are not matters of opinion — they are statements of fact. If those statements of fact are believed, as the jury and the hearing Judge believed them, it would be impossible to believe the opinion evidence of Dr. Rappaport, who testified that in his opinion it was impossible for the testator to have made those statements. It will likewise be recalled that Dr. Rappaport testified it would have been impossible for the testator to have had any of the conversations which the lay witnesses and the attorney for proponents testified he had with them during his ten day stay in the hospital. When you add to this the testimony of Dr. Carfagno, which conflicts with Dr. Rappaport’s testimony in its important phases, it is impossible, on such opinion evidence, to overrule a jury and Judge who saw and heard the witnesses.
• In King Will, 369 Pa. 523, 87 A. 2d 469, the Court said (page 531) : “This Court has frequently indicated that the-draftsman of a will, especially if he be a lawyer, is always an important and usually the most important witness in a contested will. case. . / .”
The majority opinion emasculates and erodes the well settled principle governing expert testimony which it purports to affirm, and makes the factual testimony of a. lawyer who drew the will, which is believed by the jury and the Judge, merely equal to the testimony óf experts who were not present at the time. If that is to be the law — contrary to alk the prior decisions of this .Court — the question naturally-arises.:-What'is *414the use of having an attorney who draws the will and first carefully interrogates the testator as to his wishes and then explains the will to him paragraph by paragraph, if opmion evidence of a doctor who was not present can be equated to factual evidence of the attorney and the subscribing witness, which, if believed, establishes beyond any possible doubt, the mental capacity of the testator?
The statements of fact which DiGiacomo and Rose Benedict testified were made by the testator on July 19th and on July 20th for the disposition of his property, and as to July 19th the corroborating factual testimony of the disinterested witness, Marta Giondonato, are not, as the majority opinion erroneously terms them, “opinion” evidence. That is the basic fallacy of the majority opinion. Those statements are Clear, Blazing, Blaring, Factual Facts — facts that cannot be obliterated or erased; facts that, if believed, blast any medical opinions to the contrary into oblivion. This factual evidence — exactly what testator told the attorney-scrivener he wanted in his will — was believed by the hearing Judge who sat as jury and Judge. If the jury and the hearing Judge disbelieved DiGia-como and Rose Benedict, then the opinion evidence of the doctors would prevail. If, on the other hand, the jury and the hearing Judge believed the factual testimony of the attorney who drew and witnessed the will, and the factual testimony of Rose Benedict and of Marta Giondonato, (as they did), it follows as day follows night that the testator had mental capacity and that the.honest opinion of doctors who were not present at the time of the will, viz., that he could not have had mental capacity, “was of little weight and should be entirely disregarded when contrary to established facts revealing mental capacity.” It is, we repeat, as simple as that!
*415I would affirm the Decree on the able opinion of President Judge Taxis, who correctly stated and correctly applied the pertinent principles of law.
A farm in Italy, on which his wife is now and for years has been living, having a value of $6500: $3,000 of life insurance, in which she was the named beneficiary;, and a $1624 bank account in Rome.
Italics throughout, Ours.
In view of the fact that the majority recognize this principle of law, we do not understand the reason for its citations of and quotations from the following eases, all of which are clearly distinguishable :
In Lewis Will, 364 Pa. 225, 72 A. 2d 80, decedent made her will on June 30th in the hospital and died the next day. In this case the proponents proved the will by the testimony of the attorney and a subscribing witness. The attorney’s testimony was weak. Decedent’s attending physician and 8 nurses who saw decedent on June 30th (one within half an hour of the execution of the will), plus 7 lay witnesses, aU of whom testified she could not talk intelligently or recognize .them, was held by this Court to be suffi*394cient to grant an, issue é.v.n. on the ground of mental capacity and undue influence.
In Glesenkamp Will, 378 Pa. 635, 107 A. 2d 731, the orphans’ court judge, sitting as a jury, found that decedent did not have testamentary capacity to make his will dated October 31, 1951. In that case the will was prepared by a lawyer and witnessed by a bank officer and decedent’s physician. Decedent was born in 1892, weak-minded. On May 26, 1947, a guardian was appointed for his estate after he had been adjudged to be weak-minded, unable to take care of his estate, and liable to become the victim of designing persons. It was admitted that “decedent had the mental developments, habits and intellectual attainments of a child of approximately five years.” The Court in an opinion by Justice Stearne, said (page 636) : “The findings of fact are, therefore, equivalent to a verdict of a jury. On appeal the function of an appellate court is to determine whether or not the hearing judge’s findings of fact and conclusions of law, approved by the court in banc, are sufficiently supported by the evidence.” The Court also stated (639-640) : “The determinant question is whether or not decedent possessed sufficient mental capacity to make a will. . . . In testing the extent of decedent’s testamentary capacity, Dr. Hen-ninger, a psychiatrist, called by the proponent, testified: ‘Anxious to determine, if I could, to what extent he was aware of his worldly goods, we went into that to some extent. He had no definite knowledge of his wealth at all. He knew that he had a guardi*395an and that money came from the bank to him, and that he owned the house he lived in, and that he had enough he didn’t have to work. I wouldn’t feel that beyond that he had much knowledge of his means at all.’ Upon this evaluation the doctor was of opinion, as were proponent’s other witnesses, that decedent possessed sufficient testamentary capacity to make a will provided that all decedent was required to know was a ‘general’ knowledge of what property he possessed and his next of kin. The witness frankly stated that, if the requirement of such testamentary capacity necessitated a ‘full’ knowledge of his estate and kindred, decedent did not have such capacity. Our examination of the evidence convinces us, as it did the learned hearing judge and the court in banc, that the decedent was so mentally deficient that he was incapable of possessing, and did not possess, the quantum and quality of knowledge of his estate and the natural objects of his bounty which he was required to possess in order to have testamentary capacity.” The Oourt also stated (page 640) : “We are not favorably impressed, however, with the manner and circumstances under which the wiU was prepared and executed.” That case was so obviously correctly decided and the propositions of law cited therein so sound, that we cannot understand how the' majority opinion believes it supports the conclusion it reaches.
Which in each case it terms mixed fact and opinion.
We note that the priest’s testimony was equally as available to contestants as to proponents.
And (we may add) likewise of five other witnesses who .testified to conversations with testator which Dr. Bappaport said was impossible because of testator’s stuporous condition.
Notwithstanding the fact that I believe the doctors gave their honest opinions, Dr. Bappaport’s testimony was not only inconsistent, but it was so contradicted by the testimony of lay witnesses as to testator’s physical and mental condition and his conversations with them, and in an important matter, by Dr. Carfag-no, that it is doubtful whether it would have been sufficient to entitle contestants to án issue.
Proponents’ case was obviously weakened by tbe failure of Rose’s father to testify; the excuse for such failure was a lame one. .