57 Pa. 243 | Pa. | 1868
The opinion of the court was delivered, by
This was a feigned issue directed by the Register’s Court to try the validity of a paper writing, propounded as the last will and testament of Isabel B. Montgomery, deceased, bearing date November 23d 1865. Mrs. Montgomery had executed a previous instrument of November 18th 1865, the original validity of which was not disputed, but the contention was only as to the second one, which revoked the first. The parties to the issue were the executors and persons claiming under the first, as plaintiffs, and those under the second, as defendants. Adeline Mack and Julia Duval, two of the residuary legatees under the instrument of November 23d, were not named as parties. They were offered as witnesses for the defendants, and having severally executed renunciations or releases to the executors, were admitted and examined. Their competency is the only question now presented.
It is not denied that they would have been entitled to a larger share of the estate under the second than under the first paper. Being thus beneficially interested at the commencement of the proceedings, they were substantially parties to the issue, though not named: Asay v. Hoover, 5 Barr 21; Carter v. Trueman, 7 Id. 315; Burrows v. Shults, 6 Id. 325. They were, therefore, liable for costs, and from this responsibility could not discharge themselves by a release. The opposite parties have a right to look to those who are beneficially interested in the suit: Gallagher v.
Judgment reversed, and venire facias de novo awarded.