92 Pa. 207 | Pa. | 1880
delivered the opinion of the court, January 5th 1880.
The plaintiffs, in the ejectment now being tried, claim under Margaret Wilson, one of the heirs at law of Andrew Wilson, who died July 1st 1876, seised of the land in dispute. The defendants, on the other hand, claim as devisees under the will of the said Andrew Wilson. This will was admitted to probate July 7th 1876; from this action of the register an appeal was taken to the Orphans’ Court by Margaret Wilson, who thereupon presented her petition to that court praying an issue to the Common Pleas to determine: 1. Whether the alleged testator was, at the time of the execution of the alleged testament, possessed of a disposing mind and memory; 2. Whether he was subjected to undue influence ; and '3. Whether he wms prevented by the extremity of his last sickness from signing the paper himself, and whether it was properly signed for him. To this petition an answer was filed; an examiner was appointed, and testimony taken. The Orphans’ Court, after hearing, refused the prayer for an issue and dismissed the appeal. The case was then carried up to the Supreme Court where the decree was affirmed.
On trial of the ejectment now' under consideration, which was brought to March Term 1878, after the defendants had put in evidence the will above mentioned, the plaintiffs offered to prove the same matters proposed in the petition of Margaret Wilson to the Orphans’ Court, that is to say, the testator’s want of testamentary capacity; the fact of undue influence and the want of a proper execution of the alleged testamentary writing. To this offer the defendants objected, for the reasons following: “1. That the probate was a judicial act which cannot be impeached collaterally as proposed; 2. That Margaret Wilson having appealed and requested an issue to determine the testator’s testamentary capacity,
This objection was sustained by the court. The offer was then renewed, with an offer to prove that a caveat had been filed in the register’s office giving warning, inter alia, of this action of ejectment. This offer was also overruled and a verdict taken for the defendants.
There is no doubt but that previously to the Act of April 22d 1856, the rejection of these offers -would have been erroneous, for before the passage of that act the sentence of the register admitting a will to probate, the decree of the register’s court and the verdict of a jury on an issue devisávit vel non, were conclusive only as to the disposition of the testator’s personal estate. The probate as to realty was but prima facie evidence of the execution of the will and of the testator’s testamentary competency: Rowland v. Evans, 6 Barr 435. Our task then involves the construction of this Act of 1856. Under this act has the register’s sentence of probate the same conclusiveness upon a devise of realty as it has upon a bequest of personalty ? Does it now occupy the position of a judicial decree that cannot be impeached collaterally ? Or does it remain open to attack as formerly, direct or collateral, for the period of five years, and does the act only operate as a Statute of Limitation which puts an end to all inquiry as to a testamentary devise after the expiration of the statutory period ?
The act is badly worded and hence difficult of comprehension. It reads : “ That the probate by the register of the proper county of any will devising real estate, shall be conclusive as to such realty, unless, -within five years from the date of such probate, those interested to controvert it shall, by caveat and action at law duly pursued, contest the validity of such will as to such realty.” The first part of this section is clear and unambiguous; the action of the register “ shall be conclusive;” and it shall have all the force of a judicial decree, but the trouble comes with what follows ; that is almost unintelligable. There can be no caveat after probate, neither can the official act of the register be affected by an “ action at law.” Nevertheless, the framer of the statute must surely have meant something by the words, “caveat” and “action at law,” and we must determine what he did intend by their use. In order to solve this enigma we must ascertain, if we can, what previous defect in our laws this statute was designed to remedy. As we have already seen, under the Act of 1832 and those which preceded it, the probate of a will as to realty amounted to nothing, if we except its mere prima facie character ns evidence.; hence, it was open to attack from all quarters and at all times. Any number of suits might be instituted, and in each and every one of them
But the Act of 1856 does, in express terms, make the probate of a will devising real estate conclusive as to such realty; not at the end of five years, but unless some one interested shall within five years contest its validity. True it is, if the validity thereof can be contested in any kind of collateral proceeding, involving the will, instituted within that period, the act of the register partakes no more, practically, of the nature of a judicial decree than it ever did, and we may well say that the probate is conclusive
Judgment affirmed.