Fisher Will

170 A.2d 594, 403 Pa. 612, 1961 Pa. LEXIS 513

• Court: Supreme Court of Pennsylvania
• Decided: May 22, 1961
• Docket: Appeal, No. 46
• Status: Published

Opinion

Opinion by

Mr. Justice Bell,

The lower Court refused an issue devisavit vel non. Appellant 'correctly states that the questions involved are (1) whether there was a substantial dispute of fact (a) as to decedent’s testamentary capacity; (b) as to whether the decedent’s last will was obtained by undue influence or fraud; and (2) whether the Court below abused its discretion in refusing to award an issue devisavit vel non.

The lower Court in an exhaustive opinion covering 75 pages, ably analyzed and painstakingly reviewed more than 2500 pages of the record, and found (1) that testator had testamentary capacity at the time he made his will; (2) that the will was not obtained by undue influence or fraud; and (3) that the evidence was not sufficient to raise a substantial dispute of fact upon the material questions involved which is the controlling test for an issue devisavit vel non.

Notwithstanding the vigorous argument of counsel for appellant, we find no error. Decree

* affirmed; each party to pay own costs.

Mr. Justice Musmanno dissents.

The decree dismissed the caveat and directed the Register of Wills to probate the will of September 13, 1954, as the last will and testament of Howard F. Fisher, Sr.