
    In the Supreme Court of Pennsylvania.
    DeHAVEN’S appeal.
    1. Under sec. 41, act of 15th of March, 1832, an issue devisavit vel non is of right whenever a dispute upon a matter of fact arises before the register’s court.
    2. But the fact must be material to the subject of controversy, a substantial matter of dispute, necessary to be determined, before a decision can be reached.
    Appeal from the decree of the register’s court of Philadelphia.
   Opinion delivered March 9, 1874, by

Agnew, C. J.

This case is an unsuccessful attempt to convert physical weakness and mental distress into imbecility of mind, and to extract undue influence over the judgment and will of a parent, from filial affection and devotion to the parent’s welfare and happiness. Mrs. Sophia DeHaven’s husband was an invalid for years, and for months before his death a bedridden sufferer. Some of her sons were irregular in life, and disposed to draw heavily upon her purse. She, the wife and mother* whose will is in controversy, 'was a woman of great sensibility, quick in feeling, and ardent in affection. In prosperity she was lively and pleasant, and happy while the current of life ran smoothly but in affliction she became nervous, excitable, despondent, and full of tears. Owing to the long continued sickness, suffering, and death of her husband, the misery arising from her sons, and the death of John, she frequently gave way to grief, and became unable to control her feelings, and was seized with hysteria of the most marked and distressing character. During this gloomy period of her life, it caused her to cry and laugh in the same instant, and to the unthinking to appear to be beside herself. Under such circumstances it vi as not difficult to find persons ready to believe Mrs. DeHaven’s mind had become unsettled, and to form opinions of her unsoundness, founded on these exhibitions of distress and hysteria. These opinions form the principal staple of the case of the appellants; while facts of a distinct and convincing kind are entirely wanting. On the other hand, the proof of Mrs. DeHaven’s competency not only to make a proper distribution of her property by will, but to direct and conduct her affairs, sa far as not prevented by bodily infirmity, is overwhelming. Not only was she able to furnish instructions for her will, but she actually visited the office of her adviser and scrivener alone, and executed the codicil there,, under circumstances to evince both ability and purpose of mind. Her testamentary acts were not done upon a sick or dying bed, were not the' products of a wandering and sinking intellect, but were executed with full purpose and resolution in 1859 and 1861, years before her death, and before that paralysis in 1865, which finally broke down her intellect, and in two years brought her to the grave. From 1859 until 1865, facts of the strongest character evince her knowledge of business, and disposing power — acts of deliberation and thoughtfulness in contracting liabilities* conveying property, and receiving and paying out money, calculated to arrest attention and demand the scrutiny Of those with whom she dealt* had there been anything of the disability imputed to her by those who now contest her will. The contestants themselves were parties to some of these transactions, joining in and receiving, deeds, making notes, paying money, and acting, as men having not the slightest doubt of her capacity. In one transaction for the accommodation of Kevy & DeHaven, she gave more than eighty notes, until in 1865, her decaying powers made it necessary to desist calling upon her. So she received the rents from her tenants; monthly, and gave receipts without number. Altogether the facts proving her soundness of mind are so overwhelming, and the opinions to the contrary so unfounded, no court would suffer a verdict against the will to stand for a moment.

The evidence of undue influence by Mrs. Hampton over Mrs. De-Haven’s mind, is equally weak. There is not a fact in evidence having any weight. The evidence is conclusive that the provision she made for her daughter. Mrs. Hampton, was long contemplated, and believed to be: due to her, because of the inequality between the provision for her and that for the sons, in the will of her husband. When added to this, Mrs. Hampton took upon herself the management of her household affairs and attention to her business, while in her season of distress and sufferings and by her love and regard, and those attentions which a daughter deuoted to her mother only can render, brought, back to her comparative happiness and comfort, we cannot wonder that Mrs. DeHaven felt it a duty to' provide liberally for such a daughter. Yet in doing this she did not forget her sons. Though grieved by what she deemed their errors, she remembered them in her will in a manner to indicate it was not a nominal recollection, that thinks to deprive ; but a thoughtful remembrance, w'hicli gives liberally according to desert. Upon the whole we find no ground upon which a verdict against the will, had an issue been granted, would be permitted to stand.

This brings us to consider the question upon refusing the. issue by the -. register’s court. Under the 41st section of the act of 15th March, 1832, an issue is of right whenever a dispute upon a matter of fact arises before the register’s court. But the fact must be material to the subject of controversy, a substantial matter of dispute necessary to be determined before a decision can be reached. It cannot be denied that the petition for an issue in this case, set forth material facts to be decided, before Mrs. De-Haven’s will could be admitted to probate, to wit: want of legal capacity to make a will, and undue influence on part of Mrs. Hampton, and an issue was demandable of right to try these facts. But after the refusal of this issue, the parties having gone into the entire evidence, and each having been fully heard, the case being before us on appeal, we must look at it, as we always do, to see whether any substantial injustice has been done, before we send it back for a re-hearing. Certainly we ought not to reverse, if the court below would have been bound to set aside the verdict ■as contrary to the manifest weight of the evidence. Of what use would it be if the case can be decided in but one way ? As remarked by Chief Justice Black, in Knight’s Appeal, 7 Harris 493, a mere naked allegation, without evidence or against the evidence, cannot create a dispute within the meaning of the law. This was said in a distribution case under a .sheriff’s sale, where the issue is of right. More to the point is Dean Fuller, 4 Wright 474, where an attempt was made to set aside a deed on the ground that the grantee had procured it when the grantor was weighed •down by grief at the loss of his wife, and by reason of weakness of mind and body, caused by constant watching apd anxiety during her sickness, as well as by his advanced age (over eighty years), the grantor was enabled to overreach him. There Justice Thompson said that after carefully considering the evidence, we think it is entirely insufficient on any ground claimed for it, and asks the pertinent question — Why refer insufficient ■evidence to the jury? It is now especially true, since we hold that a mere •spark of evidence is not sufficient to carry a case to the jury. The doctrine .as to issues from the register’s court, is well settled in Graham’s Appeal, 11 P, F. Smith 43, to which may be added Cozzens’ Will, Ibid 196.

Upon the whole case we find nothing to contest, and the decree of the register’s court is affirmed with costs, and the appeal dismissed, and the record ordered to be remitted to the register’s court for further proceeding, if any be necessary.  