131 A. 651 | Pa. | 1925
The orphans' court refused the prayer of a petition for leave to appeal nunc pro tunc from an order of the register probating a will, and this appeal ensued.
We adopt the following excerpts from the opinion of the court below: "Frank D. McManus died June 2, 1915; on June 7, 1915, his will, dated May 21, 1915, was admitted to probate, and letters testamentary, were granted to T. M. Daly. By his will, testator devised his entire estate, real and personal, to Mary Elizabeth Comstock. The executor duly filed his account, and the adjudication thereon . . . . . ., January 25, 1917, awarded the balance for distribution, amounting to some $200,000, to Mary Elizabeth Comstock; the adjudication was confirmed absolutely on February 10, 1917. On June 13, 1924, the petition of Harold W. McManus, a son of testator, was presented praying that the account be reviewed, and the decree of confirmation be set aside, on the ground, briefly, that the testator at the time of making his will did not possess testamentary capacity, and that the will was procured by the fraud and undue influence of Mary Elizabeth Comstock. A demurrer was filed . . . . . . and the court, after argument, dismissed the petition without prejudice. Harold W. McManus then appealed from the decree of the register of wills admitting the will to probate, and in his petition averred lack of testamentary capacity of testator, and that the will was procured by . . . . . . fraud and undue influence . . . . . .; *76 that the petitioner lived in New York, and did not learn of his father's death until the spring of 1920, when he engaged counsel, 'but for some reason, no proceedings were instituted by the petitioner's lawyers.' To the petition alleging these facts, and setting forth the petitioner's case in extenso, a demurrer was filed . . . . . . on the ground that the petitioner is barred from his appeal by not having proceeded within the period prescribed by statute. . . . . . The Acts of March 15, 1832, P. L. 135, section 31; April 22, 1856, P. L. 532, section 7, and June 25, 1895, P. L. 305, the provisions of which are substantially embodied in section 16 (a) of the Register of Wills Act of June 7, 1917, P. L. 403, make the probate of a will conclusive as to all property . . . . . . devised or bequeathed, etc., unless, within three years from the date of probate (reduced to two years by the Act of 1917) those interested shall appeal from the decree. . . . . . [It is not necessary to decide whether this time may be extended by the court.] . . . . . . The will was proved in 1915, nearly ten years ago, and the petitioner admits that he learned in 1920 of his father's death, and, more than that, consulted counsel, who, for some reason not stated, did not proceed, and the petitioner did nothing until four years thereafter. His appeal, after the statutory period, if it can exist at all, must rest in the discretion of the court as a matter ex gratia, and the laches of the petitioner, appearing from his own petition, is apparent, for even if the will had been admitted to probate as late as the spring of 1920, the provisions of the Act of 1917 would have then applied, which limit the right of appeal to two years from the date of probate. Passing over the pertinent question why the petitioner, who lived in New York, did not come to Philadelphia to see his father until 1920, it seems to us that he has slept since then on his rights, if any he has. If this appeal should be allowed after ten years have expired, it might as well be allowed after another ten years have slipped away, during which *77 time witnesses may die, and documentary evidence be lost or destroyed."
The decree is affirmed at cost of appellant.
