sary. However, so that there may be no question in this regard, it is hereby certified that the title to the land on which the mail-box was placed was involved and did come in question upon the trial, and, therefore, if the plaintiff is not entitled to his costs by reason of the justification raised by the defendant in the pleadings, which said justification was not supported by the verdict, he is now entitled to his costs under this certificate.

Certificate filed as above stated.

defence by way of answer, instead of plea, and shall be entitled to the same. protection, and shall not be compellable. to make any further answer or discovery of his title than he would be in any answer in support of such plea.

RULE 62. Within five days after the close of the trial, counsel for plaintiff may present to the trial judge written requests for findings of fact and conclusions of law, at the same time serving a copy thereof upon one of the counsel for each defendant. Within ten days after the close of the trial, counsel for defendants may serve upon the trial

Supreme Court of Pennsylvania. In and for the Eastern District. AND NOW, June 21, 1919, rules 37 and 62 of the Equity Rules are hereby amended so as to read as follows:

RULE 37. A defendant shall specifically answer all the material allegations of the bill, and those not so answered shall be taken as admitted. The answer of a defendant must be in the first person, and divided into paragraphs, numbered consecutively, each paragraph containing, as nearly as may be, a separate and distinct allegation. The rule, that if the defendant submits to answer, he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might, by plea or demurrer, protect himself from such answer and discovery. And the defendant shall be entitled in all cases, by answer, to insist upon all matters of defence in law (not being matters of abatement, or to the character of the parties, or of matters of form), to the merits of the bill, of which he may be entitled to avail himself by demurrer or plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover, upon filing a demurrer or plea in bar and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar, or defence. Thus, for example, a bona fide purchaser, for a valuable consideration, without notice, may set up the

written notice as to which, if any, of said requests in his judgment should be qualified or denied, and his reasons therefor, and at the same time may present to the trial judge and serve upon plaintiff's counsel, defendant's requests for findings of fact and conclusions of law, none of which shall be duplicates of those presented by plaintiff. Within fifteen days after the close of the trial, counsel for plaintiff may serve upon the trial judge, and upon one of the counsel for each defendant, notice as to which, if any, of defendant's requests in his judgment should be qualified or denied and his reasons therefor. There shall be left a blank space for at least two inches after each request. The trial judge may state his findings of fact and conclusions of law in his own language; and he may adopt as his own and embody in his findings and conclusions such of the requests made by the parties as he may deem desirable, in which latter event he need not elsewhere refer to them. not so adopted and embodied shall be either affirmed, refused or modified, with such statement in regard thereto as may be deemed necessary. The findings of the trial judge, with the requests and answers, shall be filed with the prothonotary, and become part of the record of the court in the case; save that requests which have been denied and as to which denial no exception shall thereafter be filed, shall be considered as withdrawn and shall not be printed on appeal. The times hereinbefore specified for filing or objecting to requests may be enlarged or

All requests

PER CURIAM.

Certified from the record.

In testimony whereof, I have hereunto set my hand and the seal of said Court, at Philadelphia, this 21st day of June, A. D. 1919.

WILLIAM A. STONE,
Prothonotary.

Supreme Court of Pennsylvania.

In and for the Eastern District.

AND NOW, June 21, 1919, it is ordered that if a motion is to be made to quash an appeal, a copy of the same, with a brief, if deemed necessary in support of it, shall be furnished counsel for appellant at least five days before the Monday of the week in which the appeal is to be heard, and a copy of a reply brief, if any, shall be furnished counsel for appellee at least three days before the said Monday.

PER CURIAM.

Certified from the record.

In testimony whereof, I have hereunto set my hand and the seal of said Court, at Philadelphia, this 21st day of June, A. D. 1919.

WILLIAM A. STONE,
Prothonotary.

Supreme Court of Pennsylvania. In and for the Eastern District. AND NOW, June 21, 1919, in accordance with the provisions of the Act of May 5, 1876, P. L. 115, it is ordered that petitions for the transfer of a county from one district to another may be presented on or before the first day of June, 1920, or the same date in any third year thereafter, and if it appears by affidavit or certificate attached that the signatures thereto are those of a majority of the lawyers resident in said county, the petition will be granted, to take effect at as early a date as the argument lists for the several counties can be properly rearranged. Where no such petition is filed,

PER CURIAM.

Probate to bill or account and certifying the same with seal, 50 cents.

Every acknowledgment or probate of deed or other instrument of writing, for first name 50 cents, each additional name after the first 25 cents.

Taking depositions (first page, folio cap), $1, each additional page 75 cents. Marine protest, including affidavits, certificate, seal, etc., $10. Section 2. All acts and parts of acts inconsistent with this act are hereby repealed.

Approved July 10, 1919.

SUPERIOR COURT OPINIONS. July 18, 1919.

Armstrong v. Conestoga Traction Co. Affirmed.

Zullinger v. Grebe. Affirmed.

and made it the duty of the court to

VOL. XXXVI] FRIDAY, AUGUST 1, 1919. [No.40

Supreme Court.

An issue devisavit vel non was properly refused where the testator in his seventy-seventh year and feeble, shortly before being stricken with paralysis which resulted in his death, requested his physician to write his will according to his instructions, which was done after the stroke, making the physician executor and trustee and residuary legatee after providing for a foster child, and disinheriting his next of kin, where the only evidence of mental breakdown was a difficulty in speech and failure to talk to visitors, subsequent to the time when the will was dictated and there was no evidence to show any attempted influence outside of the ordinary duties of a physician.

The interest which the physician was to receive though uncertain, was sufficient to shift the burden on the proponents of the will, but there being no evidence of weakened intellect the burden of proving undue influence remained upon those asserting it.

Appeal No. 285 of January Term 1919 from decree of O. C. of Lancaster Co. to Feb. T. 1917, No. 48, dismissing exceptions to the opinion refusing a petition for issue d. v. n. and dismissing the appeal of William H. Miller from the decree of the Register of Wills admitting to probate the will of Joseph Miller,

deceased.

For opinion of the Court below SMITH, P. J. see 36 LAW REVIEW 105.

Error assigned was refusal of issue d. v. n. and dismissal of appeal from probate of will.

Adams' Estate, 220 Pa., 531.

This is not changed by

Phillips' Estate, 224 Pa., 35.

There was abundant evidence of lack of testamentary capacity when the will

was executed.

Apart from the presumption arising from the confidential relation there was sufficient evidence of undue influence to sustain a finding by a jury to that effect.

John M. Groff and B. F. Davis, for appellee.

There was no real dispute as to the testator's testamentary capacity. The burden of proving undue influence was on the attacking party. Phillips' Estate, 244 Pa., 35. This they absolutely failed to do. Herr's Estate, 251 Pa., 223. Linton's Appeal, 104 Pa., 228.

June 21, 1919. Opinion by Mr. JusTICE KEPHART.

The appellant urges that an issue d. v. n. must be awarded, because the confidential relation existing between the decedent and his physician, who is named in the will as the residuary legatee, receiving a substantial part of the estate, raises a presumption of undue influence, and ipso facto entitles the contestant to brother Moschzisker, in Phillips' Est., an issue. The rule as stated by our 244 Pa., 35, 43, is as follows: "Where a person has testamentary capacity, but is so weak physically or mentally as to be susceptible to undue influence, and a substantial part of his estate is left to one occupying a confidential relation to him, the burden is upon the latter to show that no improper influence controlled the making of the will... but in a case where the decedent's testamentary capacity is conceded and there is no evidence of weakened intellect, the burden is upon

The physician having been in a confidential relation with the with the decedent raised a presumption of undue influence

it, even where the bulk of the estate is left to one occupying a confidential relation." The court will not be astute in determining the extent of interest the confidential advisor must receive in order

to raise the presumption. Any appreciable benefit that would ordinarily actuate a mind inclined to exercise this control will be sufficient; each case must depend on its own circumstances, as no hard and fast rule can be laid down: Adams' Est., 220 Pa., 531, 533.

Joseph Miller died December 17, 1916. His nearest relatives were an adopted daughter and a brother and sister. At the time of his death, he was in his seventy-seventh year. On August 31, 1916, he was stricken with paralysis, which resulted in his death. Dr. Kyle, his physician, in response to a call, a short time before this illness, met Mr. Miller in the latter's yard, and was requested to write the will. He then made a note of the testator's instructions on some prescription blanks. Later the will was inartificially and inaccurately drawn by the doctor, signed by the testator making his mark, and attested by two subscribing witnesses. The precise time this was done does not definitely appear. In it he gave to his brother and sister each five dollars, and the rest of the property to his executor, Dr. Kyle, in trust for Gertie Ruth, who had lived with him from early childhood until her marriage in 1907, a period of twentyfive years. An allowance of $25 a month was to be paid during her life, with any additional money necessary, in case of sickness, for her comfort. The residue, after Gertie Ruth's death, was bequeathed to Dr. Kyle "to dispose of it as he sees fit, only that none of my estate shall be given my brother and sister, other than what I have directed." The estate was valued at about $6,500. The interest which Dr. Kyle was to receive, though uncertain, was sufficient to raise the presumption and, under the rule, shift the burden to the proponents of the will to show testamentary capacity and that no improper influence was exerted. There is not a particle of proof to show, at the time the testator met the physician in the yard and directed how the will was to be written, he was not possessed of his full mental faculties; but appellant urges his condition later, after receiving the stroke, weakened his intellect. We have carefully examined the evidence and

find nothing to support that conclusion. Mere old age would not be enouggh, and while his affliction was enfeebling, striking down, to a certain extent, his power of speech and movement, he was able, with assistance, to get around some and go out in a chair; and, while not able to hold a conversation, he could talk sufficiently to make himself understood, and looked after the ordinary running expenses of the house. The only evidence of mental breakdown was his failure to

talk to some of the visitors, or to make himself understood to their satisfaction. Their efforts were too limited to be considered a test, and are clearly insufficient to base an opinion upon as to the strength of his intellect. He might have had personal reasons why he did not want to answer or make himself understood. The evidence, without apparent contradiction, shows that he was mentally alert. The testimony of the physician who was called in consultation, of those who were in constant attendance, and of the minister who waited on him, is conclusive on this branch of the case. The testimony here is not like that in Adams' Est., 220 Pa., 531, 533, where an issue was awarded. The testamentary capacity having been clearly established and no attempt to show that at the time the will was dictated, and for some time. thereafter, testator was mentally weak, the proponents of the will have discharged the first burden placed on them.

On the second branch of the case, relating to undue influence, the court will consider all the circumstances entering into the life of the deceased at or about the time of the acts complained of as they relate to the duties of and association with his physician. From such life and association, it will endeavor to find, from the conduct of both, if there is any ground for belief that improper motives had actuated the advisor. The patient is unconsciously subjected to a feeling of dependency on his physician; his reluc tance to make any change, and his desire to cause the doctor to exert extraordinary effort in his behalf, may be seized upon, by one whose professional honor is at low ebb, to create a condition of undue influence to effect a testamentary dis