Appeal of Ulmer

Opinion by Mb. Justice Gbeen: In this case an application was made to the court below for an issue to try the question of the mental soundness of an alleged testator. An examiner was appointed, before whom much testimony was taken — both in support of and against the application. A number of witnesses were examined, who testified to various facts within their knowledge, and to their opinions,, adversely to the validity of the testamentary paper in question. A number of other witnesses were examined, who testified to-facts within their knowledge, and to their opinions, favorably to the validity of said paper. The learned court below, being of opinion that upon the whole case the evidence was not sufficient to sustain a verdict against the will, refused the issue and dismissed the petition, and from this action the present appeal has been taken. We find ourselves unable to take the same view of the testimony which was entertained by the orphans’ court and have, therefore, reached a different result. After a patient examination of the testimony on both sides, we feel constrained to say that had we been sitting as trial judges, upon an issue granted in this case, and a verdict against the will had been rendered,, we would not have thought it our duty to set the verdict aside [470] for want .of evidence to sustain it. While we cannot discuss the testimony, it is proper to remark that neither the Scrivener who wrote the will, nor the subscribing witnesses, were examined, and the absence of such testimony in such a case as this is a material and damaging circumstance against the proponents. Where there is such evidence, and it is. of a satisfactory character, it is often of the greatest assistance in determining the question of sanity, and will frequently outweigh much opposing testimony. The mere fact .of its absence in a doubtful case has much adverse force. The decree of the Orphans’ Court is reversed, the appeal from the decision of the register granting letters testamentary is allowed, and it is ordered that an issue to try the question of the sanity of the alleged testator be granted, the costs of this appeai to be paid by the appellee.