5 Pa. 21 | Pa. | 1846
The principal question presented by the record for adjudication, Is whether, on the trial of the cause below, the legal execution of the paper averred to be the last will of Barbara Hoover, was duly proved ? Considered independently of the possibility which seems to be contemplated by the sixth section of the act of 8th April* 1833, of a party being prevented by the extremity
The reasons for a rigid adherence to the directions of the statute, in this particular, are so fully and ably set. forth in the cases alluded to, as to render any repetition of them here unnecessary. The evils that have been experienced from admitting a latitudinarian construction of analogous laws, have been too severely felt to leave us at liberty to disregard the emphatic warning they address to every well-informed legal mind against the indulgence of a similar spirit of judicial interpretation.
The question- of evidence, and the points submitted, based upon the supposed conclusiveness of the verdict and judgment rendered upon the trial of the feigned issue, proved in the Court of Common Pleas of Philadelphia county, in pursuance of the directions of the register of wills of that county, may be disposed of in a few words. -Indeed, the errors assigned in these particulars of the case were but.faintly urged on the argument. From a very early period of the history of our law, it has been uniformly held that the decision of a register repudiating a will, and the verdict of a jury condemning it, is absolute only as to personal estate, but is not conclusive on the title of real estate. Spangler v. Rambler, 4 Serg. & Rawle,
This brings us to the consideration of the second and fourth propositions of the defendant below, to the effect that the conveyance by mortgage to Isaac Barton operated as a full execution of the powers of appointment and revocation vested in Mrs. Hoover by the deed of trust from Philip Justus and wife to Samuel Asay, and these being exhausted, the plaintiff below can take nothing by vir
The eighth and ninth points submitted by the defendant below were properly answered by the court. The érror assigned in respect to them was not insisted on in the argument, and I do not deem it necessary to elaborate an argument to prove it unfounded. Nór do I perceive any well-founded objection to the answer returned to the tenth point. • There was such evidence of the testatrix’s knowledge of' the contents of the paper -alleged to be her will, as justified the court in leaving it to the jury as matter of fact.
It only remains to consider such of the bills of exception to evidence, assigned for error here, as have not been touched on. And first, the exception that the court erred in admitting the testimony of Daniel Schneck. We see no error in this. Even if the reason assigned on the record would, if shown, have constituted a valid objection, which is by no means clear, it suffices that, at the time the witness was offered to testify, it could not appear to the court that proceedings had been had before another tribunal, to test the validity of the paper offered as a will. Had the defendant proffered to show this, as the foundation of his objection, the court; would not have been justified in arresting the plaintiff’s case, to let in such countervailing proof.
Nor do we perceive any error in the rejection of the proffered testimony of Ann Hoffman and Susan Telley. Both these individuals, at the commencement of this litigation, were heirs at law of Mrs. Hoover, the deceased, and, as such, interested in the controversy. They come, therefore, clearly within the principle of Post v. Avery, 5 Watts & Serg. 509, and the subsequent cases of the same class, overruling Steele v. The Phoenix Insurance Co., and, consequently, their deed conveying their interest in the land,
What has been said, it is believed, embraces all the errors assigned, and it will be perceived we find no objection to the action of the court below, except in ruling that the legal execution of the paper set up as the last will of Barbara Hoover, had been duly proved. On this ground, alone, the judgment is reversed. ■
Judgment reversed, and a venire de novo awarded.