150 A. 101 | Pa. | 1930
This is an appeal from an order of the court below dismissing an appeal from an order of the register of wills of Fayette County, who refused to admit to probate *47 a certain writing, purporting to be a copy of an alleged lost will. The appellant, Mary Zidek, is named as sole beneficiary and executrix in the paper which was refused probate.
The petition for probate recited, inter alia, that F. G. Sebik, the alleged testator, who died July 19, 1926, had in 1921 executed a will in appellant's favor, which he delivered to her; that this document, which was "in existence . . . . . . at the time of the death of the said decedent . . . . . . and for several days thereafter," has since been "lost or destroyed," that "another paper, dated July 14, 1915, purporting to be the last will and testament of the decedent, was probated on July 29, 1926," and letters testamentary granted thereon; that the writing attached to the petition was not sooner offered for probate "because of the difficulty and uncertainty of proving the facts" above recited, although the petitioner was "at all times cognizant" of such facts, and is now in a position to "produce the necessary witnesses" to establish them.
As already stated, a will of decedent, or what was then formally proved as such, had been duly probated in July, 1926; that probate has never been appealed from and stands unimpeached. The petition to admit to probate the alleged later will, tendered by the present appellant, was not filed till January, 1929, and neither this petition nor any other pleading on the record before us alleges fraud in connection with the probate of July, 1926.
The orphans' court, in its opinion in support of the order appealed from, well states that "A register is a judge, and the admission of a will to probate is a judicial decision, [which] can only be set aside on appeal, and is unimpeachable in any other proceeding," citing Holliday v. Ward,
Prior to the Register of Wills Act of June 7, 1917, P. L. 415 (which, generally speaking, is a compilation of then existing law), we decided that, though the decision of a register granting letters of administration on a decedent's estate would not prevent the probate of a will subsequently discovered (Agnew's App.,
In Cochran v. Young,
In Cawley's Est.,
When Cawley's Estate was before us a second time (
In the last mentioned case, we decided (pages 523-4) that, on an appeal from an earlier probate, the validity as a will of a paper subsequently tendered for probate can be inquired into and determined. Again, in Com. ex rel. v. Thomas,
In Beatty's Est.,
In Stout v. Young,
Here no appeal was taken from the probate of July 29, 1926, and, therefore, appellant is not in a position to offer for probate the writing alleged by her to be a copy of the last will of testator. The probate of July 29, 1926, was an adjudication of the fact that the paper then accepted was the last will of testator, and that judgment can be attacked only on appeal.
Appellant points to section 16, paragraph (b) of the Register of Wills Act, supra, which provides that "the last will of any decedent may be offered for probate at any time" (the italics are ours), and insists that this provision controls the present case; but she entirely overlooks the fact that the record before us shows an adjudication, unappealed from, that a previously dated paper is the "last will" of this decedent. We may add that the statute in question, by paragraph (a) of section 16, particularly provides (in accord with previously established law, above shown) that "the probate of any will, or any other paper purporting to be a will . . . . . ., shall be conclusive as to all property, real or personal, devised or bequeathed by such will or paper, unless within two years from the date of such probate . . . . . . those interested shall appeal from the decree of the register." *51 As before stated, no such appeal in the present case has been entered.
Cases which suggest that, where fraud is shown, the judicial decrees of a register may be attacked collaterally, need not be discussed here, for, as previously said, there is no allegation of fraud on this record.
Appellees state in their brief: "While it is true that the writing [a copy of which] appellant seeks to have probated has been lost or destroyed, no point is made of that, and appellees grant, as they did in the court below, that the legal proposition is the same as if the proffer were of a paper duly signed and attested." In other words, this case was presented by both sides on the hypothesis that the alleged copy of a will, which appellant offered for probate, had all the rights in that regard which, under the circumstances, an original testamentary paper would possess. Though, for purposes of disposing of the present appeal, we have accepted the basis on which the case was argued, and considered it accordingly, yet it must be understood that nothing said in this opinion is intended to indicate any view on our part as to the validity of the adopted hypothesis. Finally, it should be noted that this case has been treated by all persons concerned on the basis that the previously probated paper and the one now offered for that purpose are antagonistic to one another, not as though the latter were merely supplemental to the former; and this opinion should be read and understood with that fact also in mind.
The decree appealed from is affirmed at cost of appellant. *52