Miller's Estate
31 A. 58
Pa.
1895
Check Treatment

Opinion by

Mr. Justice Williams,

The questions now brought to our attention were substantially involved in the former appeal to this court by the same appellant, which will be found reported in 159 Pa. 562 and 575. There seems however to be some uncertainty аbout the proper practice in contests over the probate of alleged testamentary writings, and it is to this circumstance, as we have no doubt, that the necessity for the present appeal must be charged. , Prior to the act of 1712 the register general of the province seems to have had charge of the probate of wills and the granting of letters of administration. The act of 1705 did little more than tо give the same effect to the probate of wills made in the courts of Great Britain that was given to such probate made before the register general. The act of 1712 directed the register and his deputiеs to call to their assistance in deciding objections or caveats entered against the probate of wills at least two of the justices of the court of common pleas of the proper county; but the method of procedure was not prescribed. The constitution of 1790 provided for a register and a register’s court in each county. The act of 1791 provided for the sending of issues of fact from the rеgister’s court to the court of common pleas for trial, fixed the time within which appeals from a decree of the register or the register’s court might be taken, and made an exception in favor of аll persons under disability, giving them five years after the end of their disability within which to take their appeal; but the methods of procedure were left largely to the discretion of the register or the register’s court. The first sеrious effort to lay down some general outlines of procedure seems to have been made by the act of 1832. By that act it is made the duty of the register of wills, whenever a caveat is entered against the admission of any testamentary paper to probate and any matter affecting the validity of such writing is alleged, to issue a pre *109cept to the court of common pleas of the county directing the preparation of an issue for trial before a jury in order to determine the truth of the fact or facts so alleged. The office of the caveat is to arrest the proceedings until the truth of the faсts alleged or affecting .the validity of the will can be determined, and it enures to the benefit of all parties interested in the subject, Ottinger v. Ottinger, 17 S. & R. 143; and a caveat separately filed by each heir at law or оther person interested is unnecessary. Each heir at ‍​‌​‌‌​‌‌‌​​‌‌​​​‌​​‌‌‌​‌‌‌‌​‌​‌​‌​‌​​‌​‌‌​​‌‌​‌‌‍law has the right to an issue if he can show facts that would sustain a verdict against the will: Schwilke’s Ap., 100 Pa. 628.. This right is saved to all, however, by the caveat of any one of these persons filed within the proper time, since all the others may be, and must be joined or afforded an opportunity to join, in the contest. The act of 1882 prescribes the form of the precept to be issued by the register to-the judges of the court of common pleas, in which is the direction that an issue be framed between the proponent and the caveator upon the merits of the controversy between them, and that the said judges cause all other persons who may be interested in the estate of the alleged testator “ as heirs, relations, or next of kin, devisees, legatees, or executors to be wаrned that they may come into our said court and become parties to the said action if they shall see cause.”

If no caveat has been filed with the register before probate made, the remedy of one desiring to contest the validity of the will is by an appeal from the decree of probate to the orphans’ court. After an appeal the further proceedings are before the orphans’ court until the precept is lodged in the common pleas. The orphan’s, court has the power to amend or to issue citations to other persons interested until the issue goes to the commоn pleas. From that time on until trial and verdict the power and the duty to call in any omitted persons interested passes to the trial court. If the record does not disclose the names of the several pеrsons interested in the estate and the appellant does not supply the necessary information the application may be dismissed for that reason : Miller’s Appeal, 159 Pa. 575. If the record does disclosе the names of all necessary parties, or if the applicant offers, when an omission appears, to supply it by amendment or in any other proper way, the application cannot be dismissed for want of parties, for all that is needed in such *110a case is the process of the court to warn the persons who have not appeared of the pending application or issue as the сase may be. But the caveat, or the appeal, of any one of the persons interested is directed against the will and ‍​‌​‌‌​‌‌‌​​‌‌​​​‌​​‌‌‌​‌‌‌‌​‌​‌​‌​‌​​‌​‌‌​​‌‌​‌‌‍not against the fractional interest of the caveator in the propеrty devised. The proceeding is in the nature of a proceeding in rem, and when a final decree is reached it is conclusive on all the world: Ottinger v. Ottinger, 17 S. & R. 142; Folmar’s Appeal, 68 Pa. 482; Warfield v. Fox, 53 Pa. 382; Miller’s Appeal, 159 Pa. 562. If by any neglect an issue goes to trial and a verdict is takеn in favor of the will by agreement, without the knowledge of one or more of the persons interested, the verdict is not binding on such person but will be set aside at his request, Hambleton v. Yocum, 108 Pa. 304; or the omitted party will be allоwed to take another appeal if the time for so doing has not elapsed, Miller’s Appeal, supra; nor does it matter on which side of the contest the name of any one interested appears, for if the verdict is adverse to the will it falls. The paper is then adjudged not to be the last will and testament of the alleged testator- and probate is refused, or set aside if already made, so that the makеr of it becomes intestate: Appeal of Lydia Probst, 163 Pa. 423. His estate would then go into distribution under the intestate laws. In that event the heirs at law would stand on the same plane, and their shares in the estate of their ancestor would not depend on their relation to the issue in which the validity of the will was determined, but on their relation to the intestate.

In the light of the principles to which we have now referred we must consider briefly the quеstions raised by'the assignments of error in this case. These are three in number. First, were the proper parties before the court when the order complained of was made? It seems to be conceded that all were on the record except Geo. W. Miller, and that the appellant was endeavoring to put him there. The ‍​‌​‌‌​‌‌‌​​‌‌​​​‌​​‌‌‌​‌‌‌‌​‌​‌​‌​‌​​‌​‌‌​​‌‌​‌‌‍court was clearly wrong therefore in holding that the.proper parties werе not before it. It was not necessary to make Geo. W. Miller a party to the issue against his will. He had a right to say, “ I wish to sustain the will and be joined with the proponents,” or to say “ I am not interested in the controversy and will have nothing to do with it,” but it was the duty of the court to warn him of *111the pendency of the proceeding so that he might be able to act intelligently and to take such position in regard to it as would best protect his own interеsts in the estate of the alleged testator.

The second question is, whether the lapse of five years after the decree of probate appealed from, without any appeal taken by Gfeorge W. Miller, made notice to him of the pending appeal either unnecessary or illegal? His interest may have been in favor of the proponents. He may have known facts and circumstances sufficient to defeat the appellant and establish the validity of the will. It is for this reason, and because he is to be affected by the decree sustaining or overturning the probate, that the statute makes it obligatоry on the appellant and the court to see that all persons interested in the estate of the alleged testator have notice of the appeal from the register.

A person whose interests are in favor of the will could not be expected to appeal from the decree of probate, but he would be expected to resist such appeal by whomsoever taken. He is entitlеd therefore, upon general principles, as well as upon the express provisions of the statute, to notice of any appeal that maybe taken, in order that he , may protect himself or оthers in whom he is interested. It is sufficient if the notice comes at such time before the trial as shall enable him to make the necessary preparation. The appeal may be taken at any time within five years after probate. The appeal brings the rem, the will, within the jurisdiction of the orphans’ court. The court then proceeds by its process to bring the persons interested in the rem before it so that all may be heard before the final decree is made, and be bound by it when made. The order of the court below incorporated into the statute a condition that the legislature did not put there, and one that ‍​‌​‌‌​‌‌‌​​‌‌​​​‌​​‌‌‌​‌‌‌‌​‌​‌​‌​‌​​‌​‌‌​​‌‌​‌‌‍in many eаses would defeat the purpose of the law and the ends of justice.

The third and last question is whether the appellant is estopped from contesting the validity of his father’s will by the receipt of some small sums of mоney from the executor, paid him as an annuity or by his petition in the orphans’ court asking further pajrment, on which no action has yet been taken. This question is decided in 159 Pa. 562, and it is not necessary to do more than refer to what is there said. The only additional circumstance set up at this time is the undisposed of *112petition in the orphans’ court, which has changed the position of no person or thing, and which affords no ground for an еstoppel. The order striking off the name of George W. Miller is reversed, with the direction that he be allowed to elect what position he will occupy towards the pending petition.

The order dismissing the petitiоn of A. H. Miller is reversed, the record remitted, and ‍​‌​‌‌​‌‌‌​​‌‌​​​‌​​‌‌‌​‌‌‌‌​‌​‌​‌​‌​​‌​‌‌​​‌‌​‌‌‍the court below directed to proceed to hear and determine the same on its merits.

Mr. Justice Mitchell : I would affirm this judgment for the reasons given by the learned judge below.