May's fault that he did not prove it. He in substance and effect is seeking to try the case again which was tried by the arbitrators of his own choosing, and on the ground that he can try his case better now than he did before, and without alleging any fault or wrong to the arbitrators, or to his adversary. If this is allowable, then it would seem like sarcasm for courts to repeat what they have often said, that arbitrations should be favored. Instead of settling any thing they would simply become the seed of a crop of lawsuits. The case is plainly within the sound proposition of Judge KENT in Le Guen v. Governeur, 1 Johns. Cas. 502, where he says: "Every person is bound to take care of his own rights and vindicate them in due season and in proper order. This is a sound and salutary principle of law. Accordingly if a defendant, having the means of defense in his favor, neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded." And he cited 2 Burr. 1009; 7 T. R. 269; 2 H. Bl. 414. He also there cites the authorities at length showing how firmly this principle is adhered to in courts of equity as well as law. Judgment affirmed.

SUPREME COURT OF PENNSYLVANIA.*

APPEAL OF KNAUSS.

October 4, 1886.

WILL-FEIGNED ISSUE -- TESTAMENTARY CAPACITY.

Where the testimony is such, that after a fair and impartial trial resulting in a verdict against the proponents of an alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, an issue to test the question of testamentary capacity should not be directed, but, where the state of the evidence is such that the trial judge would not feel constrained to set aside the verdict, an issue should be directed.

Appeal from the decree of the orphans' court of Lehigh county.

This was an appeal from the definitive decree of the orphans' court, dismissing an appeal from the action of the register of wills, in admitting to probate a paper purporting to be the last will of Probst, a decedent, and refusing a demand for an issue.

John Rupp and T. B. Metzger, for appellants, cited Thompson's Appeal, 37 Leg. Int. 512. A mere naked allegation, without evidence or against evidence, cannot create a dispute within the meaning of the law. Cozzens' Will, 11 Sm. 196; Wikoff's Appeal, 3 Harr. 281. The orphans' courts are not bound as a matter of right to award an issue of devisavit vel non to test the validity of a will whenever a dispute as to facts is alleged by a contestant and suggested on the record, and will only grant such an issue when evidence has been taken from which it appears that there is a conflict of testimony and a substantial dispute upon material points. Harrison's Appeal, 4 Out. 458. See Schwilke's Appeal, id. 628; De Haven's Appeal, 25 Sm. 337; Graham's Appeal, 11 id. 43. When the evidence of testamentary capacity is contradictory and issue must be awarded. Colgate's Estate, 5 W. N. C. 171. Where the evidence would sustain a verdict against the will, an issue is a matter of right. Gibson's Estate, 11 W. N. C. 355. It is the duty of the court to determine the sufficiency of the evidence of testamentary capacity. Cauffman et al. v. Long, 1 Norr. 72. See Shaver v. McCarthy, 3 East. Rep'r, 12. Where there is any evidence which alone would justify an inference of the disputed facts it must go to the jury no matter how strong or persuasive the countervailing proof. First National Bank of Easton v. Wirebach's Ex'r, 10 Out. 37; Howard Express Co. v. Wile, 14 Sm. 301. As to disposing mind and memory, see Daniel v. Daniel, 3 Wr. 191; Leech v. Leech, 9 Harr. 67; Tawney v. Long and Wife, 26 Sm. 106; Wilson v. Mitchell et al., 5 Out. 495. Imbecility of mind short of insanity is sufficient to set aside a will. McTaggart et al. v. Thompson et al., 2 Harr. 149. In the light of surrounding circumstances, the testator's family, his relatives and property, the provisions of the will itself, their reasonableness or unreasonableness may always be considered in passing upon the question of the testator's capacity. Patterson v. Patterson, 6 S. & R. 55; Boyd v. Eby, 8 Watts, 66; Bitner v. Bitner, 15 Sm. * Reported by OVID F. JOHNSON, Esq., of the Philadelphia Bar.

347. Subscribing witnesses to a will are not always the best to prove the sanity of the testator. Rambler v. Tryon, 7 Š. & R. 90; Irish v. Smith, 8 id. 573; McTaggart v. Thompson, supra.

Edward Harvey, for Jas. B. Roeder, executor, and for all the legatees named in the will of George Probst, deceased, appellees. The court is not bound, as a matter of right, to award an issue whenever a dispute as to facts is alleged by a contestant and suggested on the record. Harrison's Appeal, 100 Penn. St. 458. And the fact disputed must be a material fact in controversy. Bradford's Will, 1 Pars. Eq. Cas. 153. "A mere naked allegation without evidence, or against the evidence, cannot create a dispute within the meaning of the law." De Haven's Appeal, 75 Penn. St. 341; Graham's Appeal, 61 id. 43; Wykoff's Appeal, 15 id. 281. It is error to submit it to a jury, unless it be judicially determined that it is sufficient to support a verdict against the will. Wilson v. Mitchell, 101 Penn. St. 495. In the following cases all of the evidence submitted by contestants and proponents was considered. De Haven's Appeal, 75 Penn. St. 337; Graham's Appeal, 61 id. 43; Harrison's Appeal, 100 id. 462; Combs and Hankinson's Appeal, 105 id. 156; DePuy's Estate, 1 W. N. C. 212; Frowert's Appeal, 2 id. 588; Gibson's Estate, 11 id. 355; Hopple's Estate, 7 id. 523; Burden's Estate, 11 id. 138; Palmer's Estate, 5 id. 542; Rankin's Estate, 4 id. 203; Eddy's Estate, 14 id. 551; Freeman's Estate, 39 Leg. Int. 208; Neill's Estate, 37 id. 39; Wainwright's Appeal, 89 Penn. St. 220.

The test as to granting an issue is this: Should a verdict be rendered against the will on the evidence submitted, could the court enter judg ment? Hoge's Will, 2 Brewst. 451; DePuy's Estate, 1 W. N. C. 212; Burden's Will, 14 Phila. 332. An application for an issue of fact is properly refused when the applicant could not exhibit a condition of affairs under which he could recover, even if all the facts alleged by him to be true were found in his favor. Martin's Appeal, 97 Penn. St. 85. Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative must be established not in a doubtful, but in a positive manner. Grubb v. McDonald, 91 Penn. St. 236. This degree of mental capacity is presumed to exist until it is overcome by affirmative proof. Brown v. Molliston, 3 Whart. 129. Old age does not, per se, constitute incapacity to make a will. Thompson v. Reyner, 65 Penn. St. 368. A testator may be ever so aged, very infirm in body, and in habits of intemperance, and yet, in the eye of the law, possess that sound mind necessary to a disposition of his estate. Whitenack v. Stryker, 1 N. J. Eq. 9. Want of memory, vacillation of purpose, credulity, vagueness of thought may co-exist with testamentary capacity. Ilopple's Estate, 7 W. N. C. 523. Feebleness of intellect, short of what might by many be supposed to amount to idiocy, is insufficient to render a will void. Dorneck v. Reichenback, 10 S. & R. 84. Partial unsoundness, not affecting the general faculties, and not operating on the mind of the testator in regard to testamentary disposition, is not sufficient to render a person incapable of making a will. Pidcock v. Potter, 68 Penn. St. 342; Wood v.

Wood, 4 Brewst. 75-78; Maurice v. Reynolds, 2 Bradf. Surr. 360; Thompson v. Kyner, 65 Penn. St. 368; Leech v. Leech, 21 id. 69; Daniel v. Daniel, 39 id. 208; Tawney v. Long, 76 id. 106; Wilson v. Mitchell, 101 id. 495; Boyd v. Eby, 8 Watts, 66; Kachline v. Clark, 4 Wr. 319; McMasters v. Blair, 29 Penn. St. 298; Stevenson's Ex. v. Stevenson, 33 id. 469. The time of the execution of the will is the material period to which the court must look to ascertain the state of mind of the testator. Witmack v. Stryker, 1 N. J. Eq. 8: Kinne v.

Kinne, 9 Conn. 102.

STERRETT, J. It is contended by appellants that, according to the true intent and meaning of the forty-first section of the act of March 15, 1832, there was "a dispute" before the orphans' court, "upon a matter of fact," viz.: Whether the deceased, George Probst, was of sound and disposing mind, memory and understanding at the time he signed a certain paper purporting to be his last will and testament; and that it thereupon became the duty of the court to "direct a precept for an issue to the court of common pleas of the county for the trial" of said disputed fact.

It cannot, of course, be doubted that the matter of fact alleged to be in dispute is material. The sole question is whether, upon the testimony presented by the respective parties, a serious dispute has arisen as to the testamentary capacity of the alleged testator; such a dispute as should be submitted to and passed upon by a jury. In rightly determining that question there is only one safe and reliable test. If the testimony is such that a fair and impartial trial, resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of the act, has arisen. On the other hand, if the state of the evidence is such that the judge would not feel constrained to set aside the verdict, the dispute should be considered substantial, and an issue to determine it should be directed. This simple, and only safe, test is supported alike by reason and authority. Graham's Appeal, 61 Penn. St. 43; Cozzens' Will, id. 196; De Haven's Appeal, 75 id. 337; Harrison's Appeal, 100 id. 458; Schwilke's Appeal, id. 628. In the last cited case the present chief justice says: "The issue is of right, under the forty-first section, when the fact arising and in dispute is substantial and material to the inquiry, unless the whole evidence of the fact alleged be so doubtful and unsatisfactory that a verdict against the validity of the will should not be permitted to stand."

In De Haven's Appeal, supra, it is said we ought not to reverse a decree refusing an issue if the court of common pleas, after trial, would have been bound to set aside a verdict against the will as contrary to the manifest weight of the evidence. "Of what use would it be if the case can be decided but one way."

Without pursuing the subject further or referring specifically to the evidence bearing on either side of the question, a careful consideration of the testimony returned with the record and application thereto of

the rule above stated, has led us to the conclusion that a precept for an issue to the court of common pleas should have been directed."

Decree reversed at the costs of appellees, and it is now adjudged and decreed that a precept for an issue to the court of common pleas of Lehigh county, as prayed for by appellants, be and the same is hereby directed.

DIEFENDERFER V. ESHLEMAN.

October 4, 1886.

DOWER-ESTATE - COLLECTION OF DOWER-PARTITION

NOTICE-DEED.

The widow's dower at common law and the widow's statutory dower in Pennsylvania are not merely liens but are estates in the land.

When land is, by virtue of proceedings in partition, allotted subject to a widow's dower, the widow may collect her dower by distress, or by proceeding upon the recognizance or other obligation given to secure it, or may bring assumpsit against the assignee of the person to whom the land may have been allotted.

When land is allotted under partition proceedings, and the one to whom the same has been allotted conveys it to another, such third person vendee, is bound to take notice of the decree of partition.

In proceedings in partition, land was allotted to A. subject to a widow's dower in favor of B. Before the execution of a deed to A. he entered into a written agreement under seal for a sale of the land to C., subject to the widow's dower; later, a deed was made to A., who paid all the purchase money; later, A. made a deed to C., to whom at the time it was stated that the land was clear of incumbrances; neither of these deeds contained a reference to the dower of B., nor was she present at their execution or delivery. Held, none of the circumstances impaired the estate of B. in the land, or destroyed her remedy for the collection of the sum given her by law.

Error to the court of common pleas of Lehigh county.

This was an action of assumpsit brought to recover arrears of interest due the plaintiff on her dower on the land of her late husband, Jacob J. Snyder, deceased. Jacob J. Snyder died on October 3, 1873, intestate, seized of land, and leaving to survive him five minor children and his widow, who subsequently married James Diefenderfer.

On October 27, 1873, Henry J. Snyder, the guardian of three of these minor children, presented his petition in the orphans' court instituting proceedings in partition to divide the real estate. An inquest was awarded, and after refusal of all the heirs to accept, an order of sale was issued to Jacob Zimmerman, who had been appointed administrator of the estate. Later he made a return to the court that he had sold to Daniel F. Snyder.

Daniel F. Snyder, before receiving his deed from the administrator, entered into written articles of agreement with Jacob Eshleman, dated March 22, 1875, for the sale of the land. The consideration to be paid, as stated in those articles of agreement, read as follows: "The sum of sixteen hundred and fifty dollars on the delivery of these presents, and the balance-less the dower which will remain on the said premises to the widow of J. J. Snyder, deceased, but the interest to said widow during her life-on the first of April next, subject, also, to the dower of Jacob Snyder on said premises.

Jacob Zimmerman, the administrator, conveyed the land to Daniel