75 Pa. 334 | Pa. | 1874
The opinion of the court was delivered, May 11th 1874, by
It is not obligatory upon the register to issue a precept to the Court of Common Pleas, directing an issue to be formed upon the facts touching the validity of a testamentary writing offered for probate. The language, “it shall be lawful,” contained in the thirteenth section of the Act of 15th April 1832, Purd. Dig. 406, pi. 8, is not mandatory upon the register. It does not take from him the exercise of a sound legal discretion. In the exercise of that discretion he may determine whether he will decide upon the matters of fact, or will direct the desired issue to the Common Pleas: Wikoff’s Appeal, 3 Harris 281; Cozzens’s Will, 11 P. F. Smith 196; Commonwealth ex rel. Winpenny v. Bunn, 21 Id. 405.
Upon a proper request for a Register’s Court, the register has no such discretion. The twenty-fifth section of said act, Purd. Dig. 1255, pi. 20, declares, “where objections are made, or a caveat is entered against the probate of any last will and testament, and no precept for an issue is directed by the register into the Common Pleas as aforesaid; or where objections are made to the granting of letters of administration to any person applying therefor; or where any questions of kindred or other disputable and difficult matter comes into controversy before any register, he shall, at the request of any person interested, appoint a Register’s Court for the decision thereof.” The word “ shall” is imperative upon the register, whenever disputed facts, involving matters difficult to determine, come before him for decision: Commonwealth ex rel. Winpenny v. Bunn, supra.
It is shown that much testimony was taken both before and after the request was made for a Register’s Court. Finally'the register declined to hear any more. Concluding that no difficult matter had come into controversy before him, so as to require the assistance of the court, he refused to call a Register’s Court. He thereupon proceeded and decreed that the instrument be admitted to probate, and that letters testamentary thereon be issued to the appellant, the executor therein named. From that decree the caveators appealed to the Register’s Court.
Instead of proceeding to hear the case upon its merits, in the
In so decreeing, we think the court erred. Conceding that upon the facts shown before the register, he ought to have called a Register’s Court, yet the court wholly mistook its own powers.
It was not reviewing the record of the register upon a certiorari or writ of error; nor was it hearing the case upon a bill in equity. It has not the general powers of a court of equity. It must proceed under and according to the statute. It had no power to order the register to call a Register’s Court; nor, in the summary manner in which it acted, to set aside any decree made by the register. Under the appeal, the merits of the case were before it. Its duty was to take the testimony in writing, and make the same a part of the record therein, and upon this testimony so taken, to render a decision on the disputable and difficult matters arising in the case.
The decree of the Register’s Court must therefore be reversed, and the case be sent back for trial upon its merits.
Decree reversed. And now it is ordered that the Register’s Court proceed to hear and determine the appeal on the merits of the case; and that in the meantime, and until otherwise decreed, the appellant, Cadwalader Wicker-sham, be reinstated in all his rights, powers, duties and obligations as executor of said will, and that the appellees pay the costs of this appeal.