Cole v. WellsCole v. Wells
- Reporters:
- , ,
- Before:
- Jones
Opinion by
Mr. Justice-Benjamin R. Jones,
Charles Cole, 84 years of age, died on February 25, 1961 in Coudersport survived by his wife, Edith P. Cble, to whom he had been married in 1958, and two nephews, Frederick Cole (the appellant) and his brother, John Cole. It is estimated that the value of decedent’s estate is $9,000,000. On March 4, 1961; Walter P. Wells, [appellee], 1 as executor under the alleged will, offered for probate to the Begister of Wills of Potter County a four page instrument bearing date “this 2 day of October, 1958”, the backer of which instrument bore the names “Hornburg, Andrews & Diggs”, and had thereon the date August 13, 1953. The signature indicated the will had been signed during decedent’s last illness. Under this will, inter alia, decedent’s two nephews are each given a pecuniary legacy of $10,000 and a trust of the entire residuary estate created whereunder the widow receives a life interest and, upon the widow’s death, the entire residuary estate is to be devoted to the erection and endowment of a memorial hospital. This instrument was probated as decedent’s last will and letters testamentary 3 were issued to appellee. No appeal from this probate‘has been taken.
The complaint consists of 27 paragraphs and attached to the complaint are 7 exhibits, 5 of which are items, of correspondence between appellant, appellee or appellee’s counsel and 2 of which relate to the notice
Paragraphs 11-14, inclusive, relate an interview between John Cole and appellee in February 1961 together with a letter (Exhibit A) from appellee to John Cole subsequent to such interview; two interviews in-April 1961 between appellant’s counsel and appellee, each interview followed by a letter from said counsel to appellee purporting to set forth what took place at each interview (Exhibits B, C) and a letter (Exhibit D) from appellee to appellant’s counsel dated May 22, 1961. By reason of that which took place at these interviews, together with appellee’s letter of May 22, 1961, appellant charges that appellee, who drew the will, withheld deliberately the fact that appellee had drawn the will and the fact that, during decedent’s last illness, appellee had drawn a power of attorney from decedent to decedent‘s wife, and that appellee had refused to permit an inspection of not only the power of attorney but also several of decedent’s insurance policies. As appellant avers the “. . . variances [illustrated by what took place at the interviews and what appellee stated in his letter of May 22, 1961] bear on the circumstances” of (1) the execution of the will, (2) the decedent’s testamentary capacity, (3) the present whereabouts of decedent’s prior will or wills, and (4) whether the will was executed within 30 days of decedent’s death.
Paragraph 15 avers that appellant’s counsel concluded that the “circumstances suggested” that appellee had exerted undue influence in the execution of the will, that decedent lacked testamentary capacity and that the
. Paragraphs 16-24, inclusive, relate that appellant, under Rule 4007, Pa. R.C.P., had served notice on appellee and eight other witnesses for taking their depositions; that, thereafter, a conference took place between appellee, his counsel, appellant’s counsel and counsel for decedent’s widow and, as a result thereof, the time of taking depositions was continued to dates suggested by appellee and notice thereof was duly given; that-later appellee notified appellant’s counsel he would - not be present for the taking of depositions; of the seven other witnesses subpoenaed, only three witnesses appeared. . It is then charged “that the [appellee] had taken affirmative measures to counsel and procure their [the four, witnesses’] absence. .
Paragraph 25 avers that, unless appellant is quickly given; the-right-to take depositions-of appellee and these four witnesses, appellant “apprehends” that; appellee w-ill-use his influence to confuse-their recollection, to make them less . available - and will hinder- by- other means the taking of depositions. Paragraph.26 avers that appellant “apprehends” that; appellee’ “intends to subvert and. destroy’’ the utility of taking depositions by “inducing” the .court “to sanction an.irregular , procedure‘under, which .the Court will.sit
acl hoc
to make advisory rulings on matters of discovery while deposi
The relief sought in this complaint is: (1) that appellee be enjoined from interfering with appellant’s right of discovery; (2) that appellee be enjoined from “advising, counselling and procuring . . . witnesses . . . to disobey” the process of the court and not to appear for depositions; (3) that appellee be ordered to safeguard “all documents, instruments, papers, wills and other things, in his possession” having to do with the “person, property or estate” of decedent; (4) that appellee be ordered as executor to make a “full and frank disclosure” of all facts “having to do with the execution” of the will.
The charges contained in this complaint directed to any person would be grave; when directed against one occupying a judicial position they are doubly grave. However, the gravity of such charges does not vest a court with jurisdiction to hear the charges if jurisdiction does not exist. Our problem is to ascertain whether the court below was correct in its conclusion that it did not have jurisdiction.
To a suitor seeking discovery two methods are open: either under the Act of 1836, as extended,
6
or under Rule 4001 et seq. of Pa. R.C.P. It is far from clear on this record which method appellant has chosen. The Act of 1836 (Section 13), as extended, grants the power and jurisdiction of courts of chancery to courts of common pleas over: “III. The discovery of facts
material to a just determination of issues,
and other ques
Is there a pending action in the case at bar? The only action brought is the present equity suit which is an action to enforce the right of- discovery and not an; action to enforce;,any Other right of appellant.- Appellant argues,that, once the facts are known, he may, have either .of two actions at law: (1); an action at law against appellee , on the ground that he exerted undue influence on decedent either to • make this will or not to change this will which deprived appellant of the fight to a substantial inheritance
(Mangold v. Neuman,
371 Pa. 496, 91 A. 2d 904;
Marshall v. DeHaven,
209
In the present posture of this controversy discovery cannot be had.
. An examination of the complaint clearly reveals the ultimate purpose of appellant to be the institution of a will contest in the Orphans’ Court. Paragraph 15 makes this crystal clear. It avers that, as “a result of facts developed by investigation”, appellant’s counsel concluded “that the circumstances suggested” undue influence and lack of testamentary capacity and the likelihood that the will was executed during decedent’s last illness. Then it is averred that “[i]n the light of this conclusion”, the present action was instituted.
• As the court below stated: “Actually what the plaintiff here appears to be trying to do is to use discovery in Common Pleas to garner information for á
“ ‘The orphans’ court has exclusive jurisdiction over the settlement, administration and distribution of a decedent’s estate.’ Thomas v. Johnston, 356 Pa. 570, ‘The Register of Wills Act of 1917 . . . confers jurisdiction upon the. register to probate wills. The Orphans’ Court Act of 1917 . . . grants jurisdiction to the orphans’ court in all appeals from the orders and decrees of. the register. The remedy and method of procedure relating to probate and contest of wills being prescribed by these statutes, their provisions must be strictly pursued and exclusively applied (citing cases) . . Sheerin v. Beattie, 365 Pa. 510. ‘The court of common pleas even as a court of equity, cannot interfere in a matter within the exclusive jurisdiction of the orphans’ court.’ Trout v. Lukey, 402 Pa. 123. Even though the jurisdictional question is not raised by the preliminary objections, we are required to consider it. Trout v. Lukey, supra; Patterson’s Estate, 341 Pa. 177.
“It would indeed be an anomaly to allow discovery-in a court which is without jurisdiction to hear the issues towards which such discovery is directed and in a proceeding which is ancillary. in nature. Neither logic, nor an understanding of the procedure and nature of probate proceedings and will contests would sustain such an irregular, proceeding. The decree of probate by the Register of Wills constitutes a judicial decree in
“The Orphans’ Court has ‘all legal and equitable powers required for or incidental to the exercise of its jurisdiction,’ 20 P.S. Sec. 2080.304. ‘The court by general rule or special order, may prescribe the practice relating to depositions, discovery, and, production of the documents. To the extent not provided for by general rule or special order, the practice relating to such matters shall conform to the practice in the local court of common pleas.’ 20 P.S. Sec. 2080.742. Rule 6, Sec. 3, O.C. — Supreme Court Rules also so provides. It should be clear, therefore, that plaintiff has ample remedies in the Orphans’ Court should its jurisdiction be properly invoked.”
The court below wisely and properly dismissed’ this complaint. Discovery is a valuable right recognized as such by our courts for many years but discovery must not be allowed unless it is sought as a proceeding ancillary to a pending action and in the appropriate forum.
Decree affirmed. Costs on appellant.
Notes
Walter P. Wells is now and for ten years lias been the President Judge and only judge of tbe courts in Potter County. He dis--’ qualified himself and Judge Abraham H. Lipez was assigned by this Court to preside’ in this proceeding.
‘A blank appeared in the date.
Appellee and the widow were named under the will as executors and trustees. The widow renounced her rights as executrix in favor of the appellee.
Appellant, a nephew, alleges that in 1948 he and his family resided in California, that decedent requested that appellant and his family move to Coudersport and assured appellant that he and his family would be generously provided for in his wiU, that they did move to Coudersport and from that time until decedent’s death eared for him.
In the meantime, appellant had filed notice of certain pretrial depositions to be taken of various persons, including appellee.
Act of June 16, 1836, P.L. 784 (