260 Pa. 33 | Pa. | 1918
Opinion by
Richard B. Baum died testate January 17,1916, leaving to survive him a widow and one son, Richard B. Baum. The will of the testator, written by his own hand, bearing date the 2d day of August, 1911, was duly probated by the register of wills February 4, 1916. By this will the testator gave his entire estate to his wife, and appointed her the executrix. Testator’s son, Richard B., was born January 15, 1912, a little more than four months after the date appearing in the will as the date of its execution. The widow, Eugenia Rayburn Baum, on the 5th of April, Í916, appealed from the register’s decree admitting the will to probate, and praying that the probate of the will be set aside, on the ground that notwithstanding the will asserts that August 2,1911, was the date of its execution, it was in point of fact executed on' August 2,1^12, and that it be probated anew
We are met at once with the question of the jurisdiction of the court in the proceeding adopted to entertain the appeal. The jurisdiction of the Orphans’ Court, as said in Shollenberger’s App., 21 Pa. 337, is limited, if regard be had to derivation of its powers, for it possesses none inherently and exercises such only as are conferred or implied from legislation; and it is true also as to the subjects of its jurisdiction, for these are set down in the statutes. Strange to say, neither in the opinion filed by the learned judge of the Orphans’ Court who presided at the hearing, nor in the opinion filed by the other two judges who sat in review of the case upon exceptions filed, do we find any reference to this very serious question. Jurisdictional power seems to have been assumed by the court and the parties to the litigation. We shall endeavor to point out as briefly as we can such features of the case as remove it beyond the jurisdiction of the Orphans’ Court.
The right of appeal from a decree admitting a will to probate is conferred by Section 13 of the Act of March 15, 1832, P. L. 135, in which it is provided that “whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof any matter of fact touching the validity of such writing, it shall be lawful for the register, at the request of any person interested, to issue a precept to the Court of Common Pleas of the respective county, directing an issue to be formed upon the said fact or facts, and also upon such others as may be lawfully objected to the said writing.”
The essentials to a valid will-r-and by this we mean a will entitled to probate — are, first, that it be executed according to statutory requirements; second, that it be the free act of one having a sound and disposing mind,
In the light of these express authorities to the contrary, how can it be argued that this will was invalid because of the mistake in the date of its execution, eyen admitting this to be the case, and that any such circumstance gave jurisdiction to the Orphans’ Court, on appeal from the register’s decree, to revoke the probate? Adopting the language of the court in the case last cited, it is too clear for discussion that there was nothing in the decree of the register admitting the Avill to probate from which the appellee could or should have appealed; it was the will of the testator Avhen admitted to probate, is so
Another feature of this case calls for remark only as showing how the first mistake of law which we have heretofore discussed led to a still more unwarranted assumption of authority. The decree entered by the court revokes the probate of the will, on the ground that as proven it is not the will of the testator because it was not executed on the day that it purports to have been executed ; it not only revokes the probate, but it directs that the same paper be re-probated with a change of date so as to avoid the operation of the 15th section of the Act of 8th of April, 1833, P. L. 249, by taking the appellant out of the class of after-born children. It was quite bad enough to revoke the probate of a will which it would have been manifest error for the register , to refuse, but upon what conceivable principle can it be asserted that the Orphans’ Court, having revoked the probate, had jurisdiction to direct, in its stead, the probate of a will made by the direction of the court after testator’s death and which he never in his lifetime signed? That is what the proceeding comes to. If the court had power to direct the probate of a will in which it had changed the date of execution from that appearing in the will to another, it is impossible to see what, if any limitation can be placed to the exercise of such power. Why may it not extend to a change in the dispositive provisions of the will? The will as probated was either the last will of the testator, or it was not. If the latter, it was a worthless piece of paper into which no life or force could be infused by any judicial decree; if the former, it was sacred from all interference, except as some of its provisions were interdicted by legislation, and these latter, even though unenforceable, remained part of the will and do not in any way make it any the less the proper subject for probate.
*44 “It would, perhaps,” says Sharswood, J., in Willard’s App., 65 Pa. 265, “be a very convenient practice immediately upon the death of a decedent to have all possible questions which might arise upon the construction of his will and in the settlement and distribution of his estate, settled by a decree of the Orphans’ Court in limine, and by way of anticipation and by an appeal to the Supreme Court from such a decree, have a final and conclusive determination of the subject. It would certainly save counsel a great deal of responsibility in giving advice. But the acts of assembly which confer jurisdiction on the Orphans’ Court may be searched in vain for any such power. Without authority so derived we must say that the decree below or in this court on appeal would be inconclusive and possibly a snare. It would not be binding upon any of the parties; certainly not upon those of them not sui juris. Consent cannot give jurisdiction. Any opinion which we should express upon the proper construction of the will in this appeal would be merely extra judicial.”
The fears expressed by counsel that, except as this proceeding be available in such a controversy as this, the truth can never be inquired into and the end of justice attained, will all disappear upon a careful study of the cases we have cited in this opinion. The decree is reversed.