39 Pa. Super. 120 | Pa. Super. Ct. | 1909
Opinion by
The decedent died on January 20, 1905, intestate. His wife died before him, and his surviving children were two sons, George and Harvey, and two married daughters, Elizabeth Bachman and H. Etta Lahr. George, the appellant, was the oldest son. On March 17, 1906, letters of administration were granted by the register of wills to Mrs. Lahr upon her petition filed with his predecessor in office on February 13, 1905, and on the same day that letters were granted her bond, dated February 13, 1905, was approved.
On March 30, 1906, George presented his petition to the register of wills praying for a rule on Mrs. Lahr to show cause why the letters should not be vacated and revoked, and letters be granted to him. Upon the hearing of this petition all the parties interested, except Harvey Weidner, appeared before the register, and, according to the written findings of fact filed
The learned judges below based their decision upon two grounds, one of law and the. other of fact, which we state substantially in their words: 1. “That an oral renunciation, acted upon, would so far estop him who makes it, that at his instance, letters granted in pursuance thereof, would not be revoked, except as matter of discretion;” 2. “that the proof, in character and extent, so preponderates -in favor of the alleged renunciation, that it must be found as a fact.” The court then sets forth the form and terms of the oral renunciation and the time and circumstances under which it was made, by referring to, and quoting in part, the testimony of Mr. Wynn, as being a substantially accurate statement of the transaction. In order to bring clearly into view the precise question for decision we quote this part of the court’s findings and opinion: “ In May of 1905, Mr. Wynn was in Philadelphia with the parties to the controversy. He testifies in part: 'We went across the street to the corner of Fifteenth and Penn square. There were present in the group, John Lahr, his wife, Harvey Weidner and myself. George said: “I could have settled this estate and administered to it.” I said: “George, it is not too late
There was testimony in conflict with the foregoing, but, it must be remembered, the hearing was before both judges of the court, who had better opportunity to judge of the credibility of the witnesses who testified in their presence, than we have; hence, according to well-settled and familiar principles, their findings of fact based upon competent testimony, must be accepted by us, there being no manifest error. We have then a case wherein it appears that a son of an intestate, who though entitled, prima facie, to be preferred over his sister in the granting of letters, yet with express notice of the pendency of her application before the register of wills to have letters granted to her, and although she proposed to him that notwithstanding her pending application he should take out letters, not only declared to her that he would not do so, but expressed to her his assent to her going on with her application and taking out letters under it, and thereafter made no objection thereto until after letters were granted to her and her bond was approved, although he had ample opportunity in the meantime to do so. Was the appellant in position to demand as matter of right that the action of the register be annulled and letters be granted to him? It is to be noticed that letters were not granted to a stranger but to a member of the class to which the appellant belonged. This distinguishes the case from many of the cases cited by his counsel. But, as in selecting from next of kin, males are preferred by the statute over females, it is clear that if the appellant was competent and ready to act, the register could not go' by him and appoint the appellee unless he waived his preference. This he could have done by a written renunciation or waiver filed with the register, but that was not the only.
We have considered the case entirely from the standpoint of the opinion of the learned judge below. There was evidence before the court which, if credited by the judges, would have warranted them in holding that upon other grounds letters could properly have been refused to the appellant. But, as the conflicting testimony upon those subjects has not been passed upon by the court below, we deem it proper for us to omit considering it.
The decree is affirmed at the costs of the appellant.