170 Pa. 323 | Pa. | 1895
Opinion by
Harriet Y. Shepard, being seized of an estate of the value of about §80.000, on Dec. 14, 1891, died, leaving a will dated June 18, 1891, but executed shortly before her death, in which she disposed of her estate by a division into four equal parts: one fourth to her son, Charles E. Shepard; one fourth to her son, John S. Shepard; one fourth to the three children of a deceased daughter, Mrs. Abraham S. Yealde, and the remaining fourth to her son, Henry S. Shepard’s wife or children. The will purported to be signed by the testatrix with her own hand, and was attested by two witnesses. On the 30th of December, 1891, these two witnesses appeared before the register of wills of Montgomery county, and made oath in the usual form, that “ they were present, saw and heard the testatrix, Harriet Y. Shepard, in said will named, sign, seal, publish and declare the same to be her last will and testament, and at the time of doing so, she was of 'sound mind, memory and understanding .... and that they signed as witnesses to the same at the request of said testatrix, in her presence and in the presence of each other.”
The will was then admitted to registry by the proper officer, and letters testamentary issued to the executors appointed in the will.
By the will, the estate was devised to those to whom it would have descended under the intestate laws, except that as to the one son, Henry S. Shepard, the share which would have descended to him was devised to bis wife or children. This disposition of Henry’s share, of course, protected it from seizure by his creditors; so, on 9th of January, 1892, two of these creditors appealed from the decree admitting the will to registry, they averring the signature to be false, fraudulent and forged. To this appeal all the legatees under the will demurred, by a positive denial of the averments of the creditors, that the signature was false and forged, and further, by asserting that on the record creditors had no standing as parties to sue out or prosecute such appeal. The court below, on hearing, overruled the demurrer, and granted an issue devisavit vel non. On the trial of that issue on the merits, the verdict and judgment sustained the will. Before this, however, when the court overruled the demurrer, and entered decree for an issue, the legatees
Under the authority of Schwilke’s App., 100 Pa. 628, the decision of the orphans’ court overruling the demurrer now becomes reviewable on appeal from it, in the light of the evidence adduced on the trial of the issue in the common pleas. If the issue had been refused, the decree would have been final, and at once subject to appeal by the parties requesting it; but having been awarded, it was preliminary only to final judgment upon it in the common pleas.
The error assigned is the refusal of the court to sustain the demurrer, when the record showed the appellants from the register’s decree were only creditors, and therefore not such “ party interested ” as by the act of assembly had a right of appeal.
The register of wills being a judicial officer, admitting a will to probate and granting letters testamentary thereon being judicial acts, the judgment must stand as final against all except those who have a right to contest it by appeal therefrom. The jurisdiction of the register over the subject being wholly statutory, the right of any appeal must also be statutory, as also the designation of the parties on whom is conferred the right. The 31st section of the act of 1832 declares that: “From all the judicial acts and decisions of the several registers, appeals may be taken to a register’s court (now orphans’ court by the constitution and act of May 15, 1874) of the respective county, to be appointed and called by the respective register in the manner prescribed by this act.” Then the 13th section enacts that: “ Whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof, any matter of fact touching the validity of such writing, it shall be lawful for the register, at the request of any party interested, to issue a precept.... in the following form, viz: ” Then follows the statutory precept, concluding with the words: “ And further, that you cause all other persons who may be interested in the estate of the said (decedent) as heirs, relations or next of kin, devisees, legatees or executors, to be warned, so that they may come into our said court and become party to the said action, if they see cause.”
The standing of these appellants depends on the interpreta
Creditors of the testatrix are interested in her estate, but not in her disposition of it by will, because their right against the estate is unaffected by the will. Is the creditor of the son a “party interested?” It may be conceded that in a certain sense a creditor is interested in the acquisition of property by his debtor, for the latter’s ability to pay depends on the value of assets which the debtor can appropriate to the payment of, or the creditor seize in satisfaction of the debt. In this sense, the creditor would be interested in his debtor making a successful speculation in the stock market, drawing a prise in a lottery, or being a legatee under a will; but he has, in no sense of the words, such a tangible interest as would confer on him, as a “ party interested,” the right of a suitor. Does the fact that the debtor here would, under the law, if his mother had died intestate, have been an heir, place the creditor in any better position ? In her lifetime, and immediately before her death, the mother was the absolute owner of her estate; there was not the semblance of privity between her and her son’s debtor; she could make such disposition of her entire estate, by deed, gift or will, as she chose ; the son, however strong may have been his expectations, or those of his creditor, had not even a legal estate in expectancy; such an estate is a present vested right, contingent only as to possible future enjoyment. But a mere expectation, that the ancestor will make a will in the debtor’s favor, or will neither give nor grant the estate in his lifetime, and thereby a portion will fall to the debtor under the intestate laws, is wholly without substance as a present right, and incapable of estimate as to future value; it is utterly beyond the grasp of creditors. Then the mother dies, and her will is proven; those interested in her estate now are her Creditors, who are not affected by the will, aud her heirs, whose portions under the intestate laws may be affected by it. That one of the heirs owes money to a stranger to the mother does not make the stranger a party interested in the will.
If the creditor have any standing as a party interested in the estate of the testatrix, it must be by a theoretical substitution to the right of the son; but the son appears for himself,
It is admitted, in the argument by counsel on both sides, that the question has not been decided in this state; both, however, draw opposite inferences from this fact; the appellant, that, up to this time, no lawyer ever thought a creditor was a party
There are other cases, where in the decision of contests in which creditors were not parties, the courts have interpreted the act by enumerating heirs, legatees and next of kin, but in
So, while rare as it is that in such a fruitful source of litigation, under a statute, too, more than sixty years old, there has been no direct interpretation of the most important words in it, we are clearly of the opinion that a creditor of an heir or legatee cannot, as a party interested, appeal from the decree of the register admitting the ancestor’s will to probate. The appeal is sustained, and the decree of the court below overruling the demurrer is reversed.