Estate of Shelly

345 A.2d 596, 463 Pa. 430, 1975 Pa. LEXIS 1007
CourtSupreme Court of Pennsylvania
DecidedOctober 3, 1975
Docket377
StatusPublished
Cited by23 cases

This text of 345 A.2d 596 (Estate of Shelly) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Shelly, 345 A.2d 596, 463 Pa. 430, 1975 Pa. LEXIS 1007 (Pa. 1975).

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

These appeals contest decrees of the Orphans’ Court Division of the Montgomery County Court of Common Pleas which in effect direct the register of wills to accept a purported will of Rebecca Shelly for probate. Appellants contend that the orphans' court erred in allowing the appeal from the decree of the register of wills because no bond was timely filed as required by statute.1 We agree and reverse the decree of the orphans’ court.2

Rebecca Roberts Shelly died on February 16, 1971, at the age of eighty-three leaving an estate valued at approximately $900,000. Shortly after her death a will dated November 12, 1965, was offered for probate. Two caveats were filed to the probate of that will, and the matter was certified to the orphans’ court. Prior to a hearing in the orphans’ court a later will, dated 1969, was discovered and offered for probate.3 This 1969 writing was rejected by the register of wills because of apparent alterations. Shortly thereafter the heirs at law petitioned the orphans’ court, pursuant to section 208(a) [434]*434of the Register of Wills Act of 1951,4 to reduce the time to appeal the register’s decree to six months instead of the usual two years. All other parties involved in this action were given notice of the petition to shorten time for appeal, but none responded. Consequently the orphans’ court entered a decree shortening the period to six months.

The orphans’ court appointed a trustee ad litem for the Roberts Shelly Foundation, a beneficiary under the 1969 will. Appeals from the action of the register were filed by the trustee ad litem and by Glenmede Trust Company, an executor and trustee under the will. These petitions for appeal5 were filed within the six month period. However, no appeal bonds were filed. The heirs repeatedly argued in the orphans’ court that the failure to file bonds was fatal to the appeals. The orphans’ court rejected these contentions, entertained the appeals, and directed the register to admit the will to probate. This appeal ensued.

Section 208(b) of the Register of Wills Act of 1951 6 provided:

“Bond. Anyone appealing from a decree of the register shall, within ten days after filing his appeal, file with the register his bond in the name of the Commonwealth with sufficient surety in such amount, not less than five hundred dollars or more than five thousand dollars, as the register considers necessary, conditioned for the payment of any costs that may be decreed [435]*435against him. If no bond is filed within the ten-day period, the appeal shall be considered abandoned.”

Appellants raised the failure to file the appropriate bonds by way of preliminary objections and in motion for judgment on the pleadings. The orphans’ court held that the failure to file bond was not fatal. It reasoned:

“Under the circumstances of this case where one appellant is a corporate fiduciary within the jurisdiction of this Court (which if it qualified as executor would have to post no bond at all for this purpose) appealing from the refusal to probate a document in which it is a named fiduciary, the bond would serve no substantial purpose.”

On March 14, 1974, the orphans’ court again considered the matter in an opinion dismissing a motion for judgment on the pleadings:

“It is unfortunate that appellants were neglectful in respect to the filing of their bonds, but we do not believe that this failure in and of itself requires us to dismiss the present appeal, under the exact circumstances present. The estate of itself is ample security for costs. ... A small bond for costs would serve no purpose, at least none so important as to warrant dismissal of the appeal.”

While it is undoubtedly true that procedural rules are to be construed liberally,7 what is involved here is a statutory requirement which explicitly provides what shall be the consequences of failure to comply. “If no bond is filed within the ten-day period, the appeal shall be considered abandoned.” (emphasis added) This statutory language leaves no room for discretion.

In Bailey Estate, 281 Pa. 392, 126 A. 793 (1924), appellants filed an appeal from the decision of the register probating the will. A bond was filed which was improper in form, not having been signed by two sureties as re[436]*436quired by section 20 of the Register of Wills Act of 1917.8 The sureties were permitted by the register to sign the bonds after the ten-day period. In affirming the dismissal of the appeal by the orphans’ court, this Court held:

“ ‘The terms of the act of assembly referred to make a strict compliance therewith necessary; the bond executed by the appellants alone does not comply with the law, and the register should have dismissed the appeal. The statute is specific as to when the appeal may be taken and as to how it is to be perfected. Ample time is given to comply with these- requirements. The required conditions have not been met in the case at bar and the situation is as if no appeal had been filed.’ ”

281 Pa. at 395, 126 A. at 794.

In Doyle Estate, 318 Pa. 371, 178 A. 493 (1935), an appeal from the register’s decree was filed within the prescribed time. A bond was filed which was improper in form in that it was not conditioned “for the payment of all or any costs which may be occasioned by reason of such * * * appeal.” Appellant sought, after the ten day period had expired, to revise the bond to make it conform to the statutory requirement. This Court dismissed the appeal: “ ‘the bond not complying with the statutory requirement is of no effect and is null and void, and is to be treated as if no bond had been filed.’ ” 318 Pa. at 374, 178 A. at 494.

The provision for filing bond in the Register of Wills Act of 1951 was a substantial reenactment of a similar provision of the Register of Wills Act of 1917.9 Section [437]*4371922(4) of the Statutory Construction Act of 197210 provides:

“That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.”

Because the General Assembly has reenacted the appeal bond provision in substantially the same form since we construed it in the Bailey and Doyle estate cases, we are compelled to give the statute a similar interpretation.

Therefore, in view of the failure to post the required bond by the parties seeking to appeal the decision of the register, we must conclude as the statute mandates that “the appeal shall be considered abandoned.”

An alternate basis for the orphans’ court decision was that the heirs had waived the issue of the failure timely to file bond. In the opinion of October 5, 1973, the orphans’ court said, “The order of February 15, 1973 effectively disposed of the jurisdictional questions raised by the heirs.

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Bluebook (online)
345 A.2d 596, 463 Pa. 430, 1975 Pa. LEXIS 1007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-shelly-pa-1975.