Opinion by
Mr. Chief Justice Mosohzisker,
Testator, a man well advanced in years, left his entire estate to his wife; two grandchildren, the issue of a deceased son, who had died before his father, appealed [493]*493from the probate of the will; their appeal was dismissed by the court below and an issue devisavit vel non refused; these grandchildren (hereinafter referred to as contestants) have now appealed to this court.
The facts testified to are briefly outlined in the reporter’s notes, published in connection with this opinion.
Notwithstanding all that has been written recently on the subject, there still appears to be much confusion in .the professional mind as to the rules governing litigation of the present class; therefore, with the hope of clarifying the situation, we shall restate some relevant general principles, before particularly discussing the case in hand.
The law; is the essence of common sense, scientifically reduced to general principles, or rules, for the guidance of human conduct and affairs, as they concern the relations of men to each other and to organized society as a whole; these rules take cognizance of, and, fortunately, endeavor to guard against, the known frailties of mankind — one of which is a natural tendency to favor the wishes of the living, rather than those of the dead. While methods for settling disputes of fact, founded on substantial testimony, as to either alleged lack of testamentary capacity on the part of a testator or undue influence operating upon him at the time he made his will, are recognized, yet the law — having given to man the right to dispose of his worldly belongings, so that the distribution thereof, after his death, will accord with such written directions as he may leave behind, provided these are in due form, and not violative of legal requirements, and the author thereof acted at the time of their making with testamentary capacity and without undue influence — takes practical means to prevent twelve men in the jury box from improperly setting aside the duly expressed wishes of a decedent, in a suit by those who, wanting to get possession of his estate, have the stimulus of desired gain, with the great advantage in the legal struggle of the persuasiveness on the jury of their [494]*494actual presence in court, as against the physical absence of the testator. To protect adequately the legal right of the deceased to dispose of Ms own property, the law, as administered, — most wisely, in view of the known tendency of jurors, already mentioned, — places large powers in the hands of the judges who preside, as chancellors, at the trial of such cases; and like powers are in effect conferred on judges of the orphans’ court to whom applications for issues d. v. n. are made.
It is the established law of Pennsylvania that, in cases of the character of the one now before us, the judge is vested with power to decide whether or not he shall submit oral evidence to the jury, even though it be conflicting. It is his right and duty, after weighing the whole evidence impartially, to refuse to present it to the jury unless he either feels the ends of justice call for a verdict against the will, or is so uncertain on this point that he could conscionably sustain a finding either way on one or more of the controlling issues involved. If, after so weighing the whole body of the evidence, the trial judge feels sure that Ms professional and official conscience would not permit him to sustain a verdict against the validity of the will, either because the contestants’ proofs lack probative force or are legally inadequate, or because those that are reasonably worthy of credence raise no material conflict on any governing point, or the “prima facie case” which they present has been “so overcome by opposing proof as to leave no substantial dispute” (Sharpless’s Est., 134 Pa. 250, 259; Fleming’s Est., 265 Pa. 399, 406), it is his bounden duty to instruct the jury peremptorily against the contestants: Phillips’s Est., 244 Pa. 35; Fleming’s Est., 265 Pa. 399, 406.
When, however, the contestants’ evidence, “looked at separately,” would support a verdict against the will, and the proponent’s evidence, viewed in the same way, would command a contrary verdict, the issues involved should be submitted to the jury (Sharpless’s Est., 134 [495]*495Pa. 250, 259, 261; Robinson v. Robinson, 203 Pa. 400, 434), unless the court is convinced that the proofs on one side are so strong that they overcome the opposing prima facie case and leave no substantial dispute; or, again, if, on a thorough consideration of the testimony, there be found a tangible basis of doubt as to whether or not the contestants have in fact sustained the material parts of the case alleged by them, and the court, for that reason, is not certain it would disturb a finding against the will, the issues involved should be submitted to the jury for determination; and unless — on a duly raised reexamination, after verdict, and applying the tests applicable to this class of cases — the evidence proves insufficient to support the finding of the jury, that conclusion should stand, even though its effect be to set aside the will.
While this court may not heretofore have taken occasion to thus state the law, in so many words, yet where it is claimed that a case, of the character of the one which we are now considering, was improperly kept from the jury, or that a finding therein, against the will, was reversed without due cause, manifold adjudications on like matters, which appear in our reports, show that, when the action of the trial court was based on a consideration of the evidence, the propriety of such action is to be judged, or tested, by the answer to the following inquiry : In view of the relevant rules of law applicable to the particular case, is it conceivable a judicial mind,— desiring only to arrive at the truth and do exact justice,— could, on due consideration of the evidence as a whole, reasonably have reached the conclusion of the court below? When the answer to this question is in the affirmative, the judgment appealed from will not be disturbed.
Under the most excellent system which has developed in Pennsylvania, “the right [of either party] to an issue depends upon whether there is a substantial dispute upon a material matter of fact,” and that point the court must determine from a review of all the proofs adduced: [496]*496Fleming’s Est., 265 Pa. 399, 401, 407; Phillips’s Est., 244 Pa. 35, 41, 42. Moreover, even where an issue has been granted, and it comes to trial, the judge, when circumstances so warrant, may interfere to prevent the jury from unjustifiably setting aside a will; and, with this thought in mind, we have said repeatedly that in all such issues “the evidence is addressed to [the judge], sitting as a chancellor, quite as much as to the jury” (Caughey v. Bridenbaugh, 208 Pa. 414, 415; Phillips’s Est., supra, 42, and cases there cited). This system constitutes no retraction of, or infringement upon, the institution of the common law jury; it represents merely a correct use of that institution, with limitations appropriate to the circumstances under which it is employed— that employment not being in a common law action, but in a special’proceeding, having, as fully recognized by our cases, its historical roots in the ancient ecclesiastical courts, “to which the right of trial by jury did not extend” : Fleming’s Est., 265 Pa. 399, 408, and authorities there cited.
The case in hand presents allegations of undue influence and mental incapacity.
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Opinion by
Mr. Chief Justice Mosohzisker,
Testator, a man well advanced in years, left his entire estate to his wife; two grandchildren, the issue of a deceased son, who had died before his father, appealed [493]*493from the probate of the will; their appeal was dismissed by the court below and an issue devisavit vel non refused; these grandchildren (hereinafter referred to as contestants) have now appealed to this court.
The facts testified to are briefly outlined in the reporter’s notes, published in connection with this opinion.
Notwithstanding all that has been written recently on the subject, there still appears to be much confusion in .the professional mind as to the rules governing litigation of the present class; therefore, with the hope of clarifying the situation, we shall restate some relevant general principles, before particularly discussing the case in hand.
The law; is the essence of common sense, scientifically reduced to general principles, or rules, for the guidance of human conduct and affairs, as they concern the relations of men to each other and to organized society as a whole; these rules take cognizance of, and, fortunately, endeavor to guard against, the known frailties of mankind — one of which is a natural tendency to favor the wishes of the living, rather than those of the dead. While methods for settling disputes of fact, founded on substantial testimony, as to either alleged lack of testamentary capacity on the part of a testator or undue influence operating upon him at the time he made his will, are recognized, yet the law — having given to man the right to dispose of his worldly belongings, so that the distribution thereof, after his death, will accord with such written directions as he may leave behind, provided these are in due form, and not violative of legal requirements, and the author thereof acted at the time of their making with testamentary capacity and without undue influence — takes practical means to prevent twelve men in the jury box from improperly setting aside the duly expressed wishes of a decedent, in a suit by those who, wanting to get possession of his estate, have the stimulus of desired gain, with the great advantage in the legal struggle of the persuasiveness on the jury of their [494]*494actual presence in court, as against the physical absence of the testator. To protect adequately the legal right of the deceased to dispose of Ms own property, the law, as administered, — most wisely, in view of the known tendency of jurors, already mentioned, — places large powers in the hands of the judges who preside, as chancellors, at the trial of such cases; and like powers are in effect conferred on judges of the orphans’ court to whom applications for issues d. v. n. are made.
It is the established law of Pennsylvania that, in cases of the character of the one now before us, the judge is vested with power to decide whether or not he shall submit oral evidence to the jury, even though it be conflicting. It is his right and duty, after weighing the whole evidence impartially, to refuse to present it to the jury unless he either feels the ends of justice call for a verdict against the will, or is so uncertain on this point that he could conscionably sustain a finding either way on one or more of the controlling issues involved. If, after so weighing the whole body of the evidence, the trial judge feels sure that Ms professional and official conscience would not permit him to sustain a verdict against the validity of the will, either because the contestants’ proofs lack probative force or are legally inadequate, or because those that are reasonably worthy of credence raise no material conflict on any governing point, or the “prima facie case” which they present has been “so overcome by opposing proof as to leave no substantial dispute” (Sharpless’s Est., 134 Pa. 250, 259; Fleming’s Est., 265 Pa. 399, 406), it is his bounden duty to instruct the jury peremptorily against the contestants: Phillips’s Est., 244 Pa. 35; Fleming’s Est., 265 Pa. 399, 406.
When, however, the contestants’ evidence, “looked at separately,” would support a verdict against the will, and the proponent’s evidence, viewed in the same way, would command a contrary verdict, the issues involved should be submitted to the jury (Sharpless’s Est., 134 [495]*495Pa. 250, 259, 261; Robinson v. Robinson, 203 Pa. 400, 434), unless the court is convinced that the proofs on one side are so strong that they overcome the opposing prima facie case and leave no substantial dispute; or, again, if, on a thorough consideration of the testimony, there be found a tangible basis of doubt as to whether or not the contestants have in fact sustained the material parts of the case alleged by them, and the court, for that reason, is not certain it would disturb a finding against the will, the issues involved should be submitted to the jury for determination; and unless — on a duly raised reexamination, after verdict, and applying the tests applicable to this class of cases — the evidence proves insufficient to support the finding of the jury, that conclusion should stand, even though its effect be to set aside the will.
While this court may not heretofore have taken occasion to thus state the law, in so many words, yet where it is claimed that a case, of the character of the one which we are now considering, was improperly kept from the jury, or that a finding therein, against the will, was reversed without due cause, manifold adjudications on like matters, which appear in our reports, show that, when the action of the trial court was based on a consideration of the evidence, the propriety of such action is to be judged, or tested, by the answer to the following inquiry : In view of the relevant rules of law applicable to the particular case, is it conceivable a judicial mind,— desiring only to arrive at the truth and do exact justice,— could, on due consideration of the evidence as a whole, reasonably have reached the conclusion of the court below? When the answer to this question is in the affirmative, the judgment appealed from will not be disturbed.
Under the most excellent system which has developed in Pennsylvania, “the right [of either party] to an issue depends upon whether there is a substantial dispute upon a material matter of fact,” and that point the court must determine from a review of all the proofs adduced: [496]*496Fleming’s Est., 265 Pa. 399, 401, 407; Phillips’s Est., 244 Pa. 35, 41, 42. Moreover, even where an issue has been granted, and it comes to trial, the judge, when circumstances so warrant, may interfere to prevent the jury from unjustifiably setting aside a will; and, with this thought in mind, we have said repeatedly that in all such issues “the evidence is addressed to [the judge], sitting as a chancellor, quite as much as to the jury” (Caughey v. Bridenbaugh, 208 Pa. 414, 415; Phillips’s Est., supra, 42, and cases there cited). This system constitutes no retraction of, or infringement upon, the institution of the common law jury; it represents merely a correct use of that institution, with limitations appropriate to the circumstances under which it is employed— that employment not being in a common law action, but in a special’proceeding, having, as fully recognized by our cases, its historical roots in the ancient ecclesiastical courts, “to which the right of trial by jury did not extend” : Fleming’s Est., 265 Pa. 399, 408, and authorities there cited.
The case in hand presents allegations of undue influence and mental incapacity. To sustain the charge of undue influence, contestants had to show that testator’s mind was under its control “at the time and in the very act of making his will” (Kustus v. Hager, 269 Pa. 103); and, as to the alleged lack of ability to make the will, a person may be advanced in years and beset with the marked peculiarities of memory and conduct which so often ac company old age, yet if he appreciates, in a general way, who his relations are and what property he possesses, and indicates an intelligent understanding of the disposition he desires to make of it, he has testamentary capacity: Thompson v. Kyner, 65 Pa. 368, 378, 380; Kustus v. Hager, supra. Here the case against the will is most weak (without regard to the proofs on the other side), and, when the strong evidence presented by proponent is considered, the proofs relied on by contestants are insufficient to sustain a finding in their favor, either [497]*497on the ground of undue influence or lack of testamentary' capacity. Therefore, the court below did not err when it refused to grant an issue d. v. n..
The assignments are overruled, and the decree is affirmed, at cost of appellants.