Crawford v. Schooley

217 Pa. 429 | Pa. | 1907

Opinion by

Mr. Justice Stewart,

This proceeding, so far as it was an appeal from the decree of the register admitting to probate the will of James L. Crawford, bearing date of September 13, 1896, was entirely regular; so far as it was a proceeding to determine whether the alleged will bearing date of January 30, 1905, was a forgery, it was not only irregular, but was coram non judice. This latter results necessarily from the fact that in the probate of wills the orphans’ court is without original jurisdiction. The appeal here put at issue a single question, and that related exclusively to the will which had been admitted to probate— was it the testator’s last will? Appellant contended that it was not, and to establish his contention, he produced a paper purporting to be a will of the same testator executed more than eight years subsequent to the date of the will probated. This paper was in the case simply as matter of evidence. An adjudication in appellant’s favor would not have established it as a will; that could only be done in the first instance through the probate of the register, and the correctness of his adjudication could only be inquired into by the orphans’ court on appeal. The paper had never been before the register; it had never been the subject of a judicial decree, and was not before the court in this proceeding except as evidence in connection with the issue being tried. To make effective his appeal, all that was required of appellant was to prove by two witnesses the execution of the paper he produced. It bore a later date, and was clearly testamentary in its character. If proved by two witnesses, then prima facie, the will that had been admitted to probate was not a last will. This much was done, and the inquiry should have there ended. "What remained was for the orphans’ court to open up the decree admitting to probate the earlier will, and direct that the appellant produce before the register the paper which he claimed to be a later will, and proceed to make proof of its execution and validity in the usual manner. Whether the paper so offered for probate was forged or genuine would then become a question to be inquired into, if contested on such ground, and the orphans’ court, either upon the appeal from the register’s decree, or upon certificate from him that the case presented a difficult and disputable question, would have jurisdiction to determine it. On an appeal from the decree of the register with respect to some other will, it had no authority to make such inquiry, and its conclusion with respect to it was without effect. The application for an issue to test the genuineness of the paper alleged to be a later will was premature, and the proceeding under it may be wholly disregarded. If authority is needed for the view here expressed, it may be found in Cawley’s Estate, Cawley’s Appeal, 162 Pa. 520.

Since the question considered by the court below — to no purpose as we have seen — is sure to arise when the disputed will shall come to be offered for probate, we take occasion here to say that in proceedings of this character, when the subscribing witnesses to a will testify to its due execution, an issue to determine the genuineness of the instrument, if requested by the proponent, is a matter of right.

The decree appealed from is reversed, and the record remitted for further proceedings in accordance herewith.