Dissenting Opinion by
Mr. Justice Benjamin R. Jones :I dissent from the action of a majority of this Court in reversing the decree of the chancellor in the court below and awarding an issue d.v.n. on the question of testamentary capacity. In my opinion, the majority of this Court in reaching this result ignore precedents long recognized in this area of the law, substitute their findings of facts for the findings of the chancellor who had the opportunity of hearing and observing the witnesses and introduce a novel theory as to the burden of proof as to testamentary capacity in will contests.
The issue is narrow: does the evidence present a dispute of fact as to testatrix’ testamentary capacity on the date of the execution of the will so substantial in nature as to require, under the statute,1 its admission to a jury for its determination?
In reviewing the refusal of an issue d.v.n. we seek to ascertain only whether the chancellor has abused his discretion: Masciantonio Will, 392 Pa. 362, 367, 141 A. 2d 362; Farmer Will, 385 Pa. 486, 487, 123 A. 2d 630; Williams v. McCarroll, 374 Pa. 281, 299, 97 A. 2d 14; Zakatoff Will, 367 Pa. 542, 552, 81 A. 2d 430. Upon appellate review, the findings of the chancellor, *224unless without evidential support or unless the evidence has been capriciously disbelieved by the chancellor, are entitled to the weight of a jury’s verdict and are controlling: Masciantonio Will, supra, 367, and authorities therein cited.
It is the chancellor’s function, in the first instance, to determine the substantiality of the dispute of fact. The chancellor in the court below had to resolve this question: if this factual issue were submitted to a jury and the jury returned a verdict against the will, would such verdict have to be set aside as contrary to the weight of the evidence? If the ansAver was “no”, the dispute would be substantial; if the answer was “yes”, the dispute would not be substantial: Lewis Will, 364 Pa. 225, 233, 72 A. 2d 80; Lare Will, 352 Pa. 323, 42 A. 2d 801; DeLaurentiis’s Estate 323 Pa. 70, 79, 186 A. 359; Kline’s Estate, 322 Pa. 374, 378, 186 A. 364.2 On appellate review, we pass only upon the exercise of the chancellor’s discretion in his assessment of the weight of the credible evidence and only if the chancellor has abused such discretion do we reverse Ms action.
The basic error in the majority’s position is that it erroneously places the burden of proof upon the proponent in the instant factual situation and then concludes that proponent has failed to sustain this burden. In my opinion, the manner in which the majority opinion places the burden of proof upon the proponent introduces a new doctrine into this field of the law.
*225A citizen has no right of greater value than the right to dispose by will of his or her property and the last final direction of a testator or testatrix should not be set aside except for the clearest and most compelling reason: Mohler’s Estate, 343 Pa. 299, 308, 22 A. 2d 680; Wetzel v. Edwards, 340 Pa. 121, 128, 16 A. 2d 441. In line with that conception, we have said: “Testamentary capacity is presumed. After proof of execution by two witnesses the burden of proof as to incapacity is on contestant: [citing cases].” Sturgeon Will, 357 Pa. 75, 81, 82, 53 A. 2d 139. Furthermore, we have said that when the proponent offers in evidence the record of probate of the will, a prima facie case of the validity of that will is established and the burden is then upon the contestants to come forward with evidence of testamentary incapacity: Simon Will, 381 Pa. 284, 292, 293, 113 A. 2d 266; Ash Will, 351 Pa. 317, 321, 323, 41 A. 2d 620; Szmahl’s Estate, 335 Pa. 89, 90-94, 6 A. 2d 267; Plotts’ Estate, 335 Pa. 81, 87, 88, 5 A. 2d 901; Keen’s Estate, 299 Pa. 430, 440, 149 A. 737.
We have before us a will, normal in every respect, the execution of which by the testatrix is not disputed. The proponent offered and the chancellor received into evidence the record of the probate of the will. Under our case law, a presumption then arose that at the date of execution of this will the testatrix possessed testamentary capacity and the contestants had the burden of coming forward with evidence that the testatrix did not have such testamentary capacity.
To ascertain the extent to which the contestants carried their burden the record must be examined. Contestants sought to prove lack of testamentary capacity on testatrix’ part beginning in the early part of 19553 *226and extending until the time of testatrix’ death in July 1955. . Contestants’ testimony depicted testatrix in the pre-hospitalization period — March 1955 to June 5,1955 —as a woman of advanced years, untidy in her personal habits and the care of her home, occasionally suffering lapses of memory and inability to recognize friends and unable to adequately transact ordinary business affairs. From the time of testatrix’ admission to the hospital on June 4, 1955 to the date of her death —July 28, 1955 — testatrix suffered from general arteriosclerosis and was a very ill woman. Contestants’ téstimony in this respect may be summarized: one witness who made two visits to the hospital observed testatrix in an oxygen tent and testatrix could not recognize this witness; another witness who visited the hospital on three occasions found testatrix rambling about her husband, mother and brother long deceased and unable to recognize the witness; another witness who made five visits — June 6, 10, 17, 25 and July 14 — found testatrix in the same general condition; another witness who visited testatrix on June 8 found her rambling, incoherent and unable to recognize people; two other witnesses, unable to fix the dates of their visits and another witness, who visited testatrix on June 11 and June 18 and on another specified date, found her in the same general condition.
An examination of the record indicates that taking contestants’ testimony during testatrix’ pre-hospitalization period in its most favorable light, all that contestants proved was that testatrix was a woman of advanced years, untidy in her habits, who suffered lapses of memory and was at times unable to recognize friends. In Aggas v. Munnell et al., 302 Pa. 78, 85, 152 A. 840, we stated: “Neither old age, nor its infirmities, including untidy habits, partial loss of memory, inability to recognize acquaintances, and incoherent speech, will deprive a person of the right to dispose of his own prop*227erty.” See also: Ash Will, supra; Higbee Will, 365 Pa. 381, 384, 75 A. 2d 599; Conway Will, 366 Pa. 641, 644, 645, 79 A. 2d 208; King Will, 369 Pa. 523, 528, 87 A. 2d 469; Roberts Will, 373 Pa. 7, 16, 17, 94 A. 2d 780; Farmer Will, 385 Pa. 486, 490, 491, 123 A. 2d 630; Lawrence’s Estate, 286 Pa. 58, 132 A. 786. The contestants’ evidence falls far short of proof of testamentary incapacity during the period prior to testatrix’ hospitalization. At the same time, much of the testimony is flatly contradicted, even in contestants’ own case and the chancellor below so found.4
Contestants’ evidence, viewed in its most favorable light, would indicate that on various occasions while in the hospital the testatrix was unresponsive, incoherent, unable to recognize persons and generally unable to make a will. Such evidence, however, was of comparatively little weight in view of several important testamentary omissions. First, the contestants failed to prove that testatrix’ illness was of such nature and character as to preclude the existence of any lucid intervals5 and, second, the contestants failed to *228produce any evidence as to testatrix’ mental capacity-on the date tbe will was executed.
Prior decisions of tbis Court bave held that, while evidence of a testator’s testamentary capacity or incapacity for a reasonable time before or after tbe date of execution of a will may be admissible, it is tbe mental condition of a testatrix at the time she executed the will which is tbe important criterion: Williams v. McCarroll, 374 Pa. 281, 97 A. 2d 14; Skrtic Will, 379 Pa. 95, 108 A. 2d 750; Aggas v. Munnell, supra; Highee Will, supra.
Moreover, no principle is more settled in tbis area of tbe law than that where tbe scrivener of a will, subscribing witnesses and tbe attending physician testify that tbe testatrix bad testamentary capacity at tbe time she executed tbe will, strong, clear and compelling testimony is necessary to overcome such evidence: Kane’s Estate, 206 Pa. 204, 55 A. 917; Richmond’s Estate, 206 Pa. 219, 55 A. 970; Leisey’s Est., 280 Pa. 533, 124 A. 754; Phillips’s Est., 299 Pa. 415, 149 A. 719; Aggas v. Munnell, supra; Brennan’s Est., 312 Pa. 335, 168 A. 25; Highee Will, supra, 382; DeMaio Will, 363 Pa. 559, 560, 70 A. 2d 339; Franz Will, 368 Pa. 618, 622, 84 A. 2d 292.
In tbe instant situation, tbe scrivener, tbe sole surviving witness and tbe attending physician all testified, without any contradiction, that on tbe date of execution of tbis will tbe testatrix possessed testamentary capacity. I bave examined carefully contestants’ evidence and I am of tbe opinion that it entirely lacks proof of tbe quality necessary to overcome tbe uncontradicted testimony as to tbe testamentary capacity of testatrix on tbe date of tbe will and that tbe chancellor *229in the court below had no other recourse than to accept the testimony of what did happen on the date of the execution of the will rather than to hypothesize on what might have been her condition on that date as inferred from contestants’ evidence.
In my opinion, the majority of this court ignores the presumption of this will’s validity and the presumption that the testatrix possessed testamentary capacity, accords little or no weight to the testimony of the scrivener, the sole subscribing witness and the attending physician, and improperly evaluates the quality of contestants’ evidence as compared with that of the proponent.
The rationale of the majority opinion is that, because there was evidence of progressive senility and incapacity on testatrix’ part prior to the time this will was executed, the proponent therefore had the burden of proof of testamentary capacity. With this imposition of the burden of proof upon the proponent I am thoroughly in disagreement. Had Mrs. Hall been adjudicated by a court as mentally incompetent prior to the date of execution of this will, then, of course, the burden would have been upon the proponent: Harden v. Hays, 9 Pa. 151; Titlow v. Titlow, 54 Pa. 216; Hoopes’ Estate, 174 Pa. 373, 34 A. 603; Sterrett’s Estate, 300 Pa. 116, 121, 122, 150 A. 159; Brennan’s Estate, supra; Mohlers Estate, supra.
In placing the burden of proof upon the proponent in this situation, the majority relies upon Cressman Estate, 346 Pa. 400, 404, 31 A. 2d 109, wherein this Court quoted with approval from the court below: “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, since the law favors its validity, unless it appears that the testator for some time prior to its execution has been mentally incapable of transacting busi*230ness, in which event the burden of proof is on the proponent of the contested will. Landis v. Landis, 1 Grant 248; Wertheimer’s Estate, 286 Pa. 155, Olshefski’s Estate, 337 Pa. 420, 422.” (Emphasis supplied.)
Eeliance cannot be placed on Gressman. In the first place, Gressman incorrectly equates testamentary capacity and the capacity to transact business;6 time and again we have stated that less capacity is needed to make a valid will than is sufficient in most cases to transact ordinary business: Guarantee Co., etc. v. Waller, 240 Pa. 575, 88 A. 13; Kustus v. Hager et al., 269 Pa. 103, 112 A. 45; Snyder’s Estate, 279 Pa. 63, 123 A. 663; Novicki v. O’Mara, 280 Pa. 411, 124 A. 672; Lawrence’s Estate, supra; Guarantee Trust, etc. v. Heidenreich et al., 290 Pa. 249, 138 A. 764; Phillips’s Estate, supra; Aggas v. Munnell, supra; Olshefski’s Estate, 337 Pa. 420, 11 A. 2d 487; Higbee Will, supra; Conway Will, supra. In the second place, Gressman is predicated upon three decisions which do not support the statement approved in Cressman: Landis v. Landis, 1 Grant 248; Wertheimer’s Estate, 286 Pa. 155, 133 A. 144 and Olshefski’s Estate, supra. In Landis, the trial judge, in charging the jury upon the issue d.v.n., stated (p. 250) : “When once such mental incapacity [not incapacity to transact business] is established, and the . . . jury are convinced of that fact, and a general derangement or imbecility of mind clearly proved, at any time prior to the time when the . . . will was executed, then the burden of proof is changed, and those who attempt to establish the validity of the paper, must prove that the alleged testator, at the time of the execution of the instrument, had sufficient *231mental capacity to execute a will . . This Court found no error in such instruction. Landis only applies where mental incapacity has been established and found as a fact; absent such finding, Landis does not apply.7 Furthermore and strangely enough, Wertheimer and OlshefsM make absolutely no mention of the proposition approved in Gressman; on the contrary, in OlshefsM, it was said: “The will was properly executed in every particular. In this situation, a presumption of testamentary capacity . . . arises, and the contestants must adduce compelling evidence to upset the will since the law favors its validity: [citing cases].” The statement from Gressman, which the majority opinion quotes with approval, is neither a correct statement of the law nor does it find support in any decision prior or subsequent thereto.
I see no useful purpose to be served by a recitation in detail of the testimony produced by contestants and proponent. Suffice it to say, that, in my opinion, contestants’ proof is weak, contradictory and refuted and falls far short of the standard of proof held requisite by this Court on many occasions. On the other hand, the testimony of the proponent as to testatrix’ condition on the date she executed this will is clear, positive and uncontradictory. While I disagree with a majority of this Court that the burden was on the proponent, yet even if it were, in my opinion, proponent has fully and completely sustained his burden.
Furthermore, the majority opinion places upon the proponent the burden of proof under these circumstances without any precedent in the law. Chancel*232lors in future will contests can only be confused by this Court’s instant decision.
The dispute of fact as to testatrix’ testamentary capacity on June 20, 1955 — the date of execution of this will — is far from substantial under our prior decisions and the chancellor’s decree refusing an issue d.v.n. was eminently proper. I would sustain the chancellor in his refusal of an issue d.v.n. believing as I do, that the position taken by the majority of this Court in reversing the chancellor is supported neither by precedent nor by facts on this record.
Mr. Justice Bell and Mr. Justice Bok join in this dissenting opinion.Section 745(a), Act of August 10, 1951, P. L. 1163, Art. VII, as amended, 20 PS §2080.745(a).
It should be noted that tbe 1956 amendment to the Orphans’ Court Aet of 1951, supra, — in effect at the time of this hearing— provides that if the court is not satisfied with the justness of a jury verdict on the basis of all the evidence, the court may “set aside the verdict, grant a new trial or enter such other judgment as satisfies its conscience”.
Although one of contestants’ witnesses placed the onset of this incapacity as far hack as 1953, contestants’ counsel conceded that in 1954 the testatrix did not lack testamentary capacity.
By way of illustration: Mrs. Adams, contestants’ principal witness testified that as far back as December 1954 testatrix lacked testamentary capacity, yet in May 1955 this witness prepared and had the testatrix sign a paper purporting to make a cemetery bequest and stated that at that time testatrix knew what she was doing; the same witness testified that testatrix on March 14, 1955 was unable to take the minutes of the Water Company meeting yet the minutes themselves, in testatrix’ handwriting, clearly show the contrary; this same witness testified that in May 1955 testatrix was unable to transact ordinary bank business yet on that same date the testatrix drew five checks to pay bills, which checks on their face are regular in every respect; Mrs. Bullock, another of contestants’ witness, was the witness of a will drawn by the testatrix in the latter part of 1954 or the early part of January 1955 and the testatrix then knew what she was doing.
Cf: Dichter Will, 354 Pa. 444, 47 A. 2d 691; Moore’s Estate, 317 Pa. 42, 45, 176 A. 241. It is to be noted in this connection that *228contestants’ witness, Mrs. Bullock, on two occasions — the latter part of June or the early part of July prior to testatrix’ death— visited testatrix and testatrix was then able to recognize her.
That the majority opinion adopts such equation is clear: . . it seems not only clear but beyond disirate that, for some time prior to the making of the disputed will, Mrs. Hall was mentally incapable of transacting business”. (Emphasis supplied.)
Tlio chancellor found the contrary to be the fact. To apply LanMs, the majority must aet as the fact finder and find that testatrix was mentally incapable prior to June 20, 19o5 and, in so doing, set aside the chancellor’s finding for which there is supporting evidence.