100 Pa. 628 | Pa. | 1882
delivered the opinion of the court October 4th 1882.
This record presents two separate questions. They are severally stated in errors assigned. The one is, that the court erred in directing an issue devisavit vel non to the common pleas, to try the validity of a paper purporting to be the last will and testament of William Millar. The other, that the court erred in revoking the letters testamentary issued thereon to the appellant.
Directing the issue is not a definitive decree from which an appeal lies to this court. It is preliminary only. It is merely one step toward obtaining the verdict of a jury on the question of the. truthfulness of the facts alleged: McCarter’s Appeal, 28 Id. 401; Gellinger’s Appeal, Lancaster Bar of June 10th 1882. After judgment on the issue, the question of the sufficiency of the evidence to justify the finding, may properly be brought before us. The record shows the facts averred by the appellee. If they be true, their materiality and controlling effect are undoubted. We see no such abuse of the discretion vested in the Orphans’ Court, as to require its order for an issue to be interfered with.
2. The order revoking the letters testamentary is a final decree. It was made without citation and due notice to show cause, and without a hearing. Inasmuch as a preliminary step had been taken toward testing the validity of the will, the learned judge appears to have assumed that this gave him power to revoke the letters. No authority is cited .to sustain this view. No act of assembly recognizes this as sufficient cause for-revocation. If the invalidity of the will be established, it will.
And now, October 4th 1882, the appeal from the order directing the issue devisavit vel non, is quashed; and the decree revoking the letters testamentary, issued to the appellant, is reversed.