Coleman's Petition

163 Pa. 334 | Pa. | 1894

Opinion by

Mb. Justice McCollum,

This is an appeal from an order of the court of common pleas commanding the register of wills of Philadelphia county to alter a record made on the 19th of September, 1878, by one of his predecessors in office.

The first contention of the appellant is that the order was not authorized by the statute relied on by the appellees to sustain it. By this statute it is made the duty of the judges of the courts of common pleas of the several counties of the commonwealth as often as the register of wills of any county shall be superseded, and as much oftener as shall be requisite, to ascertain if the records, books, indexes and files of bis office be kept and left as the law contemplates, and, if neg-lect is apparent, to direct the deficiency to be performed by’ the proper officers. How is the duty thus, imposed to be discharged, and what is the scope of it ?

There is nothing in the statute which suggests the necessity or propriety of the institution of proceedings by interested parties and -the formation of issues for the settlement of disputes between them. It is obviously a duty which may be performed by inspection. A petition for the performance of it is not required, nor a suggestion of inaccuracy in the record. No provision is made by the statute for bringing parties or witnesses into court or for the ascertainment of any fact by the production of testimony. It seems therefore that the judge charged with the duty in quéstion; is required to ascertain by an inspection of the records, books and papers of the office whether they are kept as the law contemplates. Apparent neglect in keeping them may be readily discovered by inspection, and it is the most satisfactory if not the only method of discharging the duty imposed by the statute.

But the form of the proceeding in this case is not so objectionable as the purpose of it. A petition for the performance of the duty will not necessarily invalidate an order within the purview of the statute and proper to be made on inspection alone. The real and controlling question therefore is whether there is any statutory warrant for the order under review. The appellees contend there is, and that it is to be found in the act of June 17, 1839. We have already referred to this act and the duty it enjoins. It undoubtedly gives the judges of the courts of common pleas supervisory power over certain work to be performed by the register. It requires them as often as he is superseded, “and as much oftener as shall be requisite,” to ascertain if the records, books and papers of his office are kept in conformity with law, and if neglect is apparent, to direct the performance of the deficiency occasioned by it.. But the power of supervision thus conferred is limited to the- work of the register in keeping and preserving the records, books, indexes and files of his office. • It does not extend to his judicial acts and decisions. From these an appeal lies to the orphans’ court. Admitting a will to probate is a judicial act. Recording it and issuing letters testamentary thereon are acts which naturally follow its admission to probate and constitute prima facie evidence of it.

In the case before us it appears that an instrument purporting to be a certified and true copy of the will of Robert Coleman which was claimed to have been duly probated in Paris, France, was presented to the register of wills of Philadelphia county, Pa., who accurately recorded the same and issued letters testamentary thereon. ' He recorded -it as the law required him to record “ all original wills, after probate, and the copies of all original wills produced under the provisions ” of the act of March 15,1832. Fifteen years after recording it and issuing letters testamentary, during which time the record so made was regarded as authorized and authentic, this proceeding was instituted to change it. We regard the proceeding as unprecedented and founded upon a misapprehension of the true scope and meaning of the act of 1839. It follows from the views expressed that the order complained of was improvidently made.

We do not deem it necessary or advisable at this time to discuss or consider the other questions raised in this case. All that we now decide is that the order of June 17, 1893, is null because the learned judge of the court below was not authorized to make it.

Order reversed and set aside.