163 Pa. 423 | Pa. | 1894
Opinion by
The facts to be considered in the determination of this appeal appear in the auditor’s report, which was concurred in and confirmed by the orphans’ court.
From, this report we learn that George Probst died testate in February, 1885, leaving a large estate. He left three half-sisters to survive him, Christiana Knauss, Catharine Seip and Lydia Probst. By his will he gave his estate to certain of his collateral relatives excluding his half-sisters, and other relatives, from any share whatever therein.
Those who had been excluded, or some of them, determined to contest the validity of the will; and for these Nathan Seip, the husband of Catharine, appears to have acted as agent. He consulted with and retained counsel, and took general charge of the preparation and conduct of the proceedings. An issue devisavit vel non was framed 'in which Mrs. Knauss and Mrs. Seip were named as plaintiffs,- and in which Lydia Probst was named as one of the defendants. This was upon'the, list for trial and in a position to be reached in a few days when it was settled upon the payment of ten thousand dollars to the attorneys for the contestants.
The question now raised is to whom did the money paid by the proponent belong? Lydia Probst alleges that she was entitled to share with her sisters in it, and they now claim the whole. This controversy was referred to an auditor who sustained the contention of the accountant that Lydia Probst was not entitled to share in the money obtained by the settlement.
It should be remembered that the three sisters stood in the .-same position. They had certain rights under the intestate laws that the- will denied. If the estate of George Probst was to be distributed under his will, they were all alike excluded. If the will was set aside they would be admitted on exactly the same terms regardless of their apparent position on the record as parties to the issue, and of their contribution to the expenses of the contest. But the auditor and the court below held that the right of Lydia Probst to a share with her sisters de
The question now raised is to whom did this money belong ? Not to Nathan Seip, for he could not have taken under the intestate laws as an heir of George Probst. It must go, says the learned auditor, to those whom Seip represented, and for whom Mr. Rupp appeared. To disclose their principals both Rupp and Seip are competent, and no one of the parties can successfully interpose the objection of privilege. But Seip is now dead, and his declarations made to Mr. Rupp showing for whom he acted in making the contest are objected to on the ground
We hold that the rejected testimony was competent so far as it was offered to show for whom Seip acted as agent, and for whom Rupp appeared as counsel. This disposes of the questions really rqised on this record, but before dismissing the case it may be well to suggest another. Is it true, as the auditor seems to assume, that the money received upon the compromise-of a controversy like this belongs only to those who appear as active contestants and contribute money towards the--employment of counsel? The statute provides that any person interested may file a caveat, but it is well settled that thereafter the-proceedings are not strictly between the parties, but are in the-nature of a proceeding in rem; and a decree when made is. conclusive on all the world: Ottinger v. Ottinger, 17 S. & R. 142. For this reason it is the duty of the court to see that all persons interested are brought in before a decree is made Miller’s Appeal, 159 Pa. 562. If this is not done, or if a compromise is effected without notice to any of those interested,, and a verdict taken in favor of the will in pursuance of such
From this it results that no contestant can compromise anything beyond his or her -own personal interest in the contest, and can be entitled to no more than his or her distributive share in a sum received by way of general compromise. This was said in substance by the late Justice Gordon in the opinion delivered in Hambleton v. Yocum, supra, and seems to result necessarily from the nature of the proceeding.
The interest of Lydia Probst was identical with that of Mrs. Seip and Mrs. Knauss. 'For what reason she was put upon the record as a codefendant with the proponent of the will that disinherited her, it is probable that no one since the 'death of Seip can tell. But wherever her agent placed her on the record, her interest was identical with that of her sisters. She had the same light to appeal from the decree of probate, and. the same motive for doing so. There could have been no settlement made without her consent given personally or through her agent.- Her acquiescence in its terms was-a surrender of her right to contest the will, and her distributive share of the net results of the compromise stood to her in place of her right to contest. In such case the law would presume her joinder with her sisters in the compromise to have been upon the same terms and conditions assented to by them, and that the sum received was to be divided in-conformity with the intestate laws. This would shift the burden of proof and impose on her sisters the duty of showing some contract, release or state of facts, sufficient to rebut the legal presumption and strip her of her rights as “a person interested” in-the estate of her half-brother.
The decree appealed from is reversed, the record remitted, and a procedendo awarded.