Dissenting Opinion by
Mr. Justice Roberts:I believe that the record more than amply supports the opinion and decree of the orphans’ court, and I would affirm.
The majority opinion initially concludes that it cannot find sufficient proof of “actual fraud” to allow the widow, Mrs. DiMarco, to make her election to take against the will after the expiration of the statutory period. At the outset, in my view, it is unsound to give an overly strict reading to the “actual fraud” requirement established in earlier cases. The point is that the court below found the widow had been misled, and in reliance on the misleading information, failed to make her election at the proper time. Under those facts, I do not believe it is too helpful to concern ourselves with whether the misleading behavior should or should not bear the label of “actual fraud.” It is clear that the widow cannot be deprived of her statutory right to elect to take against the will under the facts of this case.
I believe the cases relied upon by the majority are inapposite. Freer Estate, 353 Pa. 351, 45 A. 2d 47 (1946) and Taylor’s Estate No. 1, 24 Pa. D. & C. 512 (1935) both involve a failure to inform or notify the widow; Boileau’s Estate, 201 Pa. 493, 51 Atl. 338 *443(1902) simply centers on the widow’s lack of knowledge. Likewise, Daub’s Estate, 305 Pa. 446, 157 Atl. 908 (1931) and Salomon’s Estate, 297 Pa. 299, 146 Atl. 891 (1929), both cited by the majority to support the proposition that there was no “intent to deceive” in the case now before us, are cases where mistaken information about either facts or law was inadvertently given to the surviving spouse.
The contrast between these cases and the situation with which we now are dealing is obvious. Here the court below found, from explicit testimony in the record, that the widow was given misinformation. She was told that “everything in your husband’s name is now yours”, and that simply was not true. That statement was made in appellant’s presence by the attorney who prepared the will for Mr. DiMarco. This attorney further testified: “I felt no obligation to tell Mrs. DiMarco that she had a right to elect to take against this will . . ., and thereby I suppose indicate some disloyalty to Mr. DiMarco that what he thought would take place after his death wouldn’t take place.” In light of this testimony, it could hardly be said that the misrepresentation was inadvertent.* Rather it appears that the attorney believed that it was his role to preserve the will and to insulate it from an election, and on this record, I believe that it is wholly improper for this Court to overturn the findings of the trier of fact.
The findings of the orphans’ court with reference to its decision to remove appellant as coexecutor also *444are fully supported by the record. These findings, in addition, show that appellant and the attorney did nothing to dispel the latter’s misrepresentation to the widow that she now owned all of her husband’s property, and made more serious the effect of that misrepresentation.
Although the decision to remove an executor is one that should not be made lightly, it still is a decision that lies within the discretion of the orphans’ court, see Beichner Estate, 432 Pa. 150, 247 A. 2d 779 (1968); Fraiman Estate, 408 Pa. 442, 184 A. 2d 494 (1962), and in my view the record before us indicates that there was no abuse of discretion in this case. Testimony clearly supports the court’s conclusion that the widow was not given information concerning the estate, despite her requests to appellant that he provide her with such information. Mrs. DiMarco cannot read English, and explicitly testified that she had met with her son, daughter, and the attorney who had prepared the will because “I want to know that’s [what’s?] my share of my husband.” Nonetheless, Mrs. DiMarco testified that appellant never explained anything about the will.
Even more serious is the clear record evidence of the conflict-of-interest position in which appellant stands as coexecutor and remainderman under the will. There is uncontradicted evidence in the record that the trust for Mrs. DiMarco provided for in the will has not been established. The accountant retained by appellant testified that he had advised against the payment of dividends from the corporation. This no-dividend policy would render the trust, if created, useless as an income producing device for the widow. As the orphans’ court correctly pointed out: “On the one hand, his corporate accountant advises Robert [appellant] against the payment of dividends; on the *445other hand, his office as coexecutor and trustee oblige him to make the corpus of the estate as productive as possible or to convert the corpus to something that is productive. Whether justified or not, his failure to declare dividends, to convert the nonproductive corpus, and his delay in establishing the trust inure to his ultimate benefit as an owner of the business and as remainderman under the trust. No inventory or account has been filed, and he has refused to provide the coexecutor, and beneficiary, his mother, with information.”
This course of conduct by appellant makes even more grievous the earlier misrepresentation made to Mrs. DiMarco that she was entitled to all her husband’s property. In reality, appellant was entitled only to an income interest in a trust that appellant failed to create, and that would likely provide no income even if created as long as appellant administered its operation. In this factual situation, I do not see how the need to allow appellee to elect to take against the will, and to remove appellant as coexecutor, could be more obvious.
One final comment is necessary. A very important reason why this Court should be reluctant to overturn findings made by a trier of fact is that we, viewing a cold record, simply are not in a position to evaluate witnesses compared with the judge who is present when their testimony is given. In this case, in commenting on appellant’s attempt to change an answer given when he was on the stand earlier in the trial, the court below noted that “Robert did not impress the Court with his sincerity.” The importance of appellant’s character and credibility cannot be underestimated in a case of this type, where fiduciary relationships are involved, where the record shows that a conflict-of-interest exists, and where there is uncontradicted evidence that *446a misrepresentation was made to Mrs. DiMarco which, severely prejudiced her rights. I do not believe that it is proper, on this record, for an appellate court to overturn the findings and decision made below, and as a result I dissent.
Further reinforcing the view that the misrepresentation was not inadvertent is the fact that the widow, immediately following her husband’s death, began receiving cheeks of $150 per week from appellant. These checks continued for about two and one-half years. When the checks stopped, the widow went to see her husband’s attorney, who had written the will, and he told her it was now “up to mother [and] son” to straighten the matter out.