256 Pa. 233 | Pa. | 1917
Opinion by
William McMurray died January 22, 1916, intestate, unmarried and without issue, leaving to survive him as his next of kin and heirs at law seventeen nephews and nieces and five grandnieces, representing three deceased nephews or nieces. Joseph McMurray, a nephew, applied for letters of administration on his estate. This was opposed by Edward M. Reis, another nephew, who asked that letters be issued to him. After hearing each of them and their witnesses, the register granted letters to McMurray. On appeal to the Orphans’ Court, the decree of the register was reversed and it was ordered that letters be issued to Reis. Subsequently, on the application of McMurray, the matter was reargued before the court, but it declined to disturb its decree.
To the register of wills is committed, in the first instance, the duty of granting letters of administration, and he acts judicially in the performance of that duty. Prom a decree granting or refusing letters an appeal lies to the Orphans’ Court, under Section 31 of the Act of March 15, 1832, P. L. 135,144. While such an appeal, in a certain sense, brings the matter complained of before the Orphans’ Court de novo, that court does not, strictly speaking, act originally, but is confined to a review of the discretion exercised by an inferior judicial officer, in whom it is vested by Section 22 of the Act of March 15, 1832; and if the legal discretion of that officer has not been abused in his appointment of an administrator, his selection cannot be disturbed: Wilkey’s App., 108 Pa. 567; Levan’s App., 112 Pa. 294. In Brubaker’s App., 98 Pa. 21, Jacob Sheaffer died intestate, leaving as his only heirs
In the case before us it was the duty of the register to grant letters of administration to a nephew of the intestate, if qualified to administer the estate. Did he make an improper selection from the class from which he was required to appoint? This must be determined from what was developed at the hearing before him, for the lower court acted upon it alone, under an agreement of counsel that the appeal was to be heard on the petition for it and answer thereto, if any should be filed, and upon the testimony which had been taken before the register; and no testimony, facts or pleadings which were not part of the record when the case was originally before the court were taken into consideration by it on the reargument.
Three nephews and one niece testified before the register that they wished letters to be issued to. Joseph McMurray, the appellant. Two nephews and one niece testified that they preferred Edward M. Eeis, the appellee. Three nephews, one niece and three grandnieces requested, in writing, that letters be issued to McMurray, but the court below refused ho consider these requests, for the reason that they had not been offered in evidence; but it nevertheless took into account similar requests in favor of Eeis, made by two nieces and two grandnieces, though they had not been offered in evidence, so far as appears from' the record. In view of this the learned president judge of the court below inadvertently erred in saying that a majority in interest in the estate of the deceased, who had signified a preference as to whom the register should appoint, requested him to appoint Edward M. Eeis.
Seven witnesses testified before the register as to the good business habits of Joseph McMurray, and to' Ms fitness to administer the estate of his deceased uncle, and no one was called to contradict them. His com
The assignments of error are sustained, the decree of the Orphans’ Court is reversed and set aside, and the decision of the register is affirmed, all costs below and on this appeal to be paid by the appellee.