Concurring Opinion
Shoyer, J.,August 7, 1963
As chancellor, I approved the jury’s verdict immediately upon its being rendered. Again, in support of my decree of May 20, 1963, I stated that their finding of sound mind on the part of Miss Dettra did not shock my conscience although I myself, if sitting alone, would have found that she lacked testamentary capacity on the date of the alleged will, May 16, 1961. The jury’s special verdict had also established that undue influence was exerted by Mr. Weissman to make his wife and self the sole legatees, so this was sufficient ground on which to base my decree invalidating the will.
As a member of our court en banc, after hearing the arguments of counsel and after further consideration of the authorities, I have decided to join in the opinion which Judge Lefever has written for our court and concur in its holding that Miss Dettra lacked testamentary capacity. The “roguish conscience” decried by Selden** is to be deplored just as much when the *593“Chancellor’s foot” is long as when it is short. The dispenser of equity should be guided by established principles, not personal inclinations. When we search for these principles among our cases, what do we find?
Sound reason for modifying the views which I have recorded as chancellor is found both under the cases and the current statute relating to jury trials in the orphans’ court. Historically, the jurisdiction in will contests exercised by the orphans’ court comes from equity: Fleming’s Estate, 265 Pa. 399, 407. Decreeing the invalidity of a will calls for the application of an equitable remedy, viz., rescission. The court is doing for the alleged testator that which he cannot do for himself, to wit, either correcting an error which he would have avoided if of sound mind, or righting a wrong perpetrated against him by some unscrupulous third party: Fleming’s Estate, supra, p. 407. In addition, undue influence and forgery are both grounded in fraud, relief against which (especially constructive fraud) could be obtained solely in the equity court many years ago. Fraud was perhaps the earliest ground of equitable jurisdiction: Pomeroy’s Equity Jurisprudence (5th ed.), Yol. Ill, pp. 580-1.
That the judges of our Pennsylvania orphans’ courts have inherited these broad equitable powers is clearly demonstrated by many appellate decisions. The judge sitting in a will contest is not only called a chancellor, but possesses all the power and authority of a jurist sitting in a court of equity: Fleming’s Estate, supra, p. 406; Williams v. McCarroll, 374 Pa. 281, 293, 297. In equity, the findings of a jury lack the impregnable qualities of a verdict establishing the facts in a court of law. They are advisory only, cannot bind the conscience of the chancellor, and should form the basis of his decree only when they are fully supported by competent evidence and he is satisfied with their justness.
Our Supreme Court early gave expression to this *594limitation in the rules which it established for the conduct of equity business by the courts of Common Pleas throughout the Commonwealth. An illustration of the application of these rules is found in New York Life Insurance Company v. Bodek Corporation, 320 Pa. 347, where the chancellor, deeming the findings of the jury on the questions presented to them as binding upon him, unless on the evidence judgment n.o.v. should have been entered, accepted their findings as true, and on that basis dismissed the bill and entered a decree nisi for the beneficiary for the amount of the insurance. Plaintiff filed exceptions to this adjudication, and, after an argument before the court en banc, the latter held (the chancellor concurring in the decision) that the findings of the jury were not binding upon the chancellor, but merely advisory. Our Supreme Court held that this ruling was clearly correct since the equity rules provided that the answers of a jury made to inform the conscience of a chancellor should not be binding upon him. Further, the lower court en banc held that the findings of the jury were opposed to the weight of the evidence, and the fact that the insured had falsely answered the question as to medical examination on the insurance application, was practically admitted by the beneficiary.
In the orphans’ court, the practice is the same. “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 considered as a whole”: Fleming’s Estate, supra, p. 406.
But:
“ “In every case tried before a jury in which the trial judge sits as a chancellor, the evidence is addressed to him quite as much as to the jury — it must as a whole be judged by him independently of the jury —must satisfy his (legal) conscience as well as the *595jury — and cannot be rightfully submitted to the jury as a basis of any finding which he would not approve; in a word, he cannot permit the jury to do what he as a chancellor (after weighing the evidence in the light of the established law upon the subject) would not do’ ”: Phillips’ Estate, 244 Pa. 35, 42, 90 Atl. 457, quoting with approval from the opinion of Judge Endlich in Caughey v. Bridenbaugh, 208 Pa. 414, 415, 57 Atl. 821, affirmed per curiam.
“The foregoing quotation was spoken with respect to a jury’s verdict on the trial of an issue d.v.n. certified to the Common Pleas under the practice obtaining prior to the Act of July 1, 1937, P. L. 2665, 20 P.S. §2585. It is no less applicable to a jury’s verdict in the trial of an issue in the Orphans’ Court under the provisions of that Act. The Act of April 22, 1905, P. L. 286, 12 P.S. §681, which provides for the filing of motions for judgment n.o.v., is adaptable to the trial of an issue d.v.n. only to the extent of the procedure it prescribes for raising the alleged invalidity of a verdict as a matter of law. It does not import into the question of the sustainability of a verdict on an issue d.v.n. the binding effect of the rule as to the evidence permissibly cognizable in testing a verdict rendered by a jury in a trial at law”: Stewart Will, 354 Pa. 288, 295.
“While a verdict of a jury will not be lightly set aside, the trial judge, sitting as a chancellor . . . still has complete control over the verdict”: Lare Will, 352 Pa. 323, 337 (concurring opinion, Mr. Justice Stearne).
The statutory requirements for will contests were last amended by Act of July 14, 1961, P. L. 610, effective September 12, 1961. Although Miss Dettra had died prior thereto, the amended act being procedural in nature, governs the present litigation. The title states its purpose as “clarifying provisions relating *596to verdicts”. Section 745 of the Orphans’ Court Act of 1951, which was amended in 1956, was repealed completely and rewritten. It now provides in (c) :
“When a contest shall arise concerning the validity of a writing alleged to be testamentary . . . the court, in its discretion at any stage of the proceedings, may impanel a jury to decide any question of fact but the verdict of the jury shall be advisory only.”
The 1961 amendment differs from the 1956 amendment in eliminating all reference to “a substantial dispute of fact.” Having been enacted after the decision of our Supreme Court in Murray Will, 404 Pa. 120, it was doubtless intended to broaden the discretion of the lower court, and modify the effect of that decision. The 1956 amendment was intended to reintroduce the rule of Stewart Will, Williams v. McCarroll, and Fleming’s Estate, all supra, “and make it clear that the Orphans’ Court has control over the verdict”: Comment of Joint State Government Commission. This same intention was undoubtedly pursued in the 1961 amendment.
Will the evidence when considered as a whole support the jury’s finding of testamentary capacity? Demonstrably it will not. The testimony of those present at the execution of the will barely establishes a prima facie case at best. Weissman was, of course, an interested witness, and Tubis, the scrivener, having participated in the contest, cannot be considered disinterested : Masciantonio Will, 392 Pa. 362, 380. The beliefs held by the subscribing witnesses as to Miss Dettra’s mental capacity depend on their inferences or deductions from her spoken words, acts and conduct: Girsh Trust, 410 Pa. 455, 467. Judge Schwartz’s conversation with her was brief, held mostly in the presence of Weissman, and he did not discover her amputation. She never told them that her estate even approximated $125,000, and it is apparent that both witnesses considered its value to be much less. This impression they *597had gathered from her admittedly few words, her acts and her conduct. Following her death, they were surprised to learn the substantial amount of her possessions. Undoubtedly, testatrix’ failure to convey some idea of the approximate size of her estate was due to her own inability to comprehend it. Her “general” knowledge, if she had such, was insufficient: Glesenkamp Will, 378 Pa. 635, 640. Her testamentary capacity is dependent upon a “full and intelligent knowledge” of both the property she possessed and the natural objects of her bounty: Glesenkamp Will, supra, pp. 639, 640; Morgan’s Estate, 146 Pa. Superior Ct. 79, 87.
In the light of my charge, the jury’s finding of undue influence carries a strong implication that testratix was suffering from a weakened intellect not only on May 16, 1961, but for some time before. This is corroborated by her inability to sign her name, and by the hospital notation of malnutrition and dehydration made at the time of her admission on April 15. The prolonged and complex hospital history, which is undisputed, convinces all of us that decedent, by May 16, had deteriorated so far that she unquestionably lacked a full and intelligent knowledge of her estate. She was unable to fully understand the meaning of the act in which she was engaged, even as she evidently lacked full appreciation of the significance of her amputation.
Where careful examination of all the evidence in the light of the pertinent authorities clearly establishes testamentary incapacity as in this case, the court should not hesitate to enter judgment notwithstanding the jury’s verdict. Accordingly, I concur in the opinion of Judge Lefever written for our court en banc.
This oft-quoted criticism of Lord Selden which is so frequently misapplied, in complete ignorance of the subject or the occasion to equity jurisdiction in general, may be found in full in Pomeroy's Equity Jurisprudence (5th ed.), vol. I p. 74, as follows:
“Equity is a roguish thing. For law we have a measure, and know what we trust to. Equity is according to the conscience of him that is Chancellor; and as that is larger or narrower, so is equity. ’T is all one as if they should make his foot the standard for the measure we call a Chancellor’s foot. What an uncertain measure would this be! One Chancellor has a long foot, another a short foot a third an indifferent foot. ’T is the same thing in the Chancellor’s conscience.”