2 Rawle 177 | Pa. | 1828
The opinion of the court (Rogers, J. dissenting,) was delivered by
— Wills are proved here, neither in common form, by the oath of the executor, nor in solemn form, per testes, on notice to the parties; but in an intermediate manner, by witnesses without notice to any one. Proof in solemn form is seldom made, even in England, unless at the instance- of a party opposed to the will, and I feel confident there never has been an instance of it in Pennsylvania. Where the will is contested, which is done by a caveat, and no issue is directed, the matter is determined by the Register’s Court, the depositions being made part of the proceedings. Where there is no dispute before the register, the depositions are endorsed on the will, which is then taken to be proved without any formal sentence, the endorsement of the proof being called the probate. In the case at bar, probate was thus made; and on the trial of an issue from the Register’s Court, the will, with the probate endorsed, was permitted to go to the jury, the witnesses themselves being subsequently examined. The objection is to the probate, which is alleged tó be not only a deposition, which cannot be admitted where the witness may be had, but a deposition ex parte. It is, however, not an ordinary deposition, but proof taken in the cause, and in the course of a judicial proceeding, of which, it was held, in Ottinger v. Ottinger, 17 Serg. & Rawle, 142, all parties in interest are bound to take notice. All then, that is necessary to secure those parties from the possibility of injury, is to give them an opportunity to cross-examine the witnesses at the trial. Even the want of this, would not be an objection if the witnesses were dead, as was determined in the case just cited. I perceive no difference in this respect, between the probate of a will, and the probate of a deed, under the-recording acts. It is true, the latter is necessarily offered only in
I know of no question more unimportant in its consequences than this. If the witness persist in proving the fact, the force of his evidence cannot be increased by his evidence before the register; and should he retract, he will do so with a certainty, that that evidence will then be introduced to impeach him.' It-is, therefore, of little consequence, when the probate is read; or, where the witness is consistent, whether it be read at all.
If, then, the probate were properly admitted to the jury, it seems to be Such a document as they might take out with them. But were that otherwise, it is not a ground to disturb the verdict, as was intimated in Alexander v. Jameson, 5 Binn. 238, and directly decided in M'Cully v. Barr, 17 Serg. & Rawle, 445, at the last term at Pittsburg.
Judgment affirmed*