Loy v. Kennedy

1 Watts & Serg. 396

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1841
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J.

The 5th section of the Act of the 15th of March 1832, enacts that every register shall have jurisdiction within the county for which he shall have been appointed, of the probate of wills and testaments. The 13th and 25th sections provide the mode of proceeding when objections are made, or caveats entered, and the 31st section enacts that from all judicial acts and decisions of the registers, appeals may be taken to the Register’s Court. In the performance of, this duty, the register is a judge, and admitting the will to probate is a judicial act, and the only remedy given to the party aggrieved is an appeal to the Register’s Court. It is settled in repeated decisions, that the sentence or decree of a judge or court of competent jurisdiction is conclusive, and cannot under any pretence be re-examined in a collateral proceeding. To this will there were two subscribing witnesses. One of them personally appeared before the register, and proved the will in proper form. The other being absent, the register after proof of the hand-writing of the testator, admitted the will to probate, and granted letters testamentary to the executors named in the will. These letters have never been revoked, and although there is no formal decree that the proof of the will was deemed good, yet that the will was admitted to probate we cannot doubt, as otherwise the grant of letters of administration to the executors, would be preposterous and absurd. Although this laxity -in practice is not to be commended, yet we cannot venture to' say, that where a formal decree is omitted, the whole proceeding is to be considered null and void. It is believed that such strictness would, under our loose practice, be productive of more harm than good. In Logan v. Watt, (5 Serg. & Rawle 212) it was contended that a register was not constituted a judge of what a legal probate is, so as to render his certificate to that effect evidence. This was denied, and the court decided that the certificate of the Register of Wills, that a will of lands had been duly proved, and approved before him, and a copy thereof annexed, is primfi, facie evidence of such will, though a copy of the probate is not set out. The court held that the register was a judicial, and not a ministerial officer, as regards this part of his duty, and that the only remedy of the party aggrieved by his decree, was an appeal to the Register’s Court. The only difference in this case is, that in Logan v. Watt, no copy of the probate was set out, and here the register certifies the will defectively proved, but this does not prevent it from being prima, facie testimony, at least, and as such admissible in evidence. The proof of the will being deemed defective, attempts were made to remedy this defect, by proving in the first place, the hand-writing of the subscribing witness; and secondly, by a commission to Pittsburg, to examine Elizabeth Pennock, now Connell, the other subscribing witness, on interrogatories. To the latter proof two objections are made: First: That the witness proves that she saw Hugh Ferguson sign the written document annexed to the commission, and acknowledge it to be his act and deed; and secondly, that the commission is not under seal. The first has been faintly pressed; surely this is a good authentication of the instrument as a will, accompanied by proof that the person signing it was of sound disposing mind. To require more would frequently do mischief, as a testator is frequently disposed to conceal the fact, that the instrument executed is a will. But does the want of an official seal to the commission invalidate the probate? The commission to examine the witness was issued under the authority of the 9th section of the Act of the 15th of March 1832, and should have been under the official seal of the register; this is another of the tissue of blunders into which the successive registers have fallen. But, notwithstanding the want of the seal, we think that on this trial the objection cannot avail the defendant. The commissioners have acted on the commission, it has been returned to the register, who has received it, and has certified it as part of the record under his official seal. This supplies the want of an official seal to the commission, which was nothing more than the authentication of the authority of the commissioners to take the examination of the witness.

Judgment affirmed.