¶1Dissenting Opinion by
¶2The testator in this case, James A. Johnson, was 83 years of age when he drew his will. He died one year later. He devised to one Edna Allison, to all intents and purposes a stranger, certain real estate in assumed payment of services she was to render in the future and which she never did render. Because of this bizarre devise, plus other strange habits in his latter life, the will was contested and the matter came before the Orphans’ Court of Chester County for a determination as to “whether the testator was mentally incapacitated to make a will at the time of the execution thereof.”
¶3*131Johnson’s personal physician testified: “Mr. Johnson had a general mental deterioration as far back as 1935 when he was working for Webster, 1934 or 1935 when he was working for Webster. He had senile psychosis and senile dementia.”
¶4I believe, after reading the testimony in the case that there was substantial dispute in the record as to whether Johnson possessed testamentary capacity to make a will. In Lewis Will, 364 Pa. 225, 232 72 A. 2d 80, this Court, speaking through Mr. Justice Horace Stern, said: “The rule is firmly established that the judge of the orphans’ court conducting the hearing on appeal for the granting of an issue d.v.n. is not to constitute himself the jury, that is, to decide the case as he would if acting in the capacity of an ultimate fact-finding tribunal; his function is to determine whether there is a substantial dispute upon a material matter of fact, and such a dispute exists if a verdict that might be reached by a jury, even if at variance with his own opinion, would not have to be set aside as judicially untenable because contrary to the weight of the evidence.”
¶5There is no doubt that if the issue of testamentary capacity were submitted to a jury and the jury found that Johnson was lacking in testamentary capacity, that verdict could not be set aside as judicially untenable because contrary to the weight of the evidence.
¶6I would affirm the exceptions filed by counsel for the appellant to the Order entered by the Orphans’ Court of Chester County.