Mr. Justice Gordon
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, [213]*213the charge of undue influence, and the due execution of the will, which appeal was dismissed, &c., the plaintiffs claiming under her are ■ conclusively estopped in this action by virtue of the Act of 22d April 1856; 3. That the evidence is incompetent.”
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 [214]*214the will might be controverted; it might be sustained to-day and overthrown to-morrow. No one could depend absolutely upon a title which involved a will, for no length of time could make such title secure. Here then was an evil, and a very serious one, and one which, we doubt not, the Act of 1856 was intended to remedy. But the question recurs when does this remedy become operative? Say the counsel for the plaintiffs, not until the end of five years, and the dictum of Mr. Justice Woodward in Kenyon v. Stewart, 8 Wright 179, is cited in support of that allegation, and it is undoubtedly in point, for that learned justice asserts not only that the word “ caveat ” in the Act of 1856 is inaccurately used, but that the words “actions at law.” mean an ejectment or any proceeding where the issue is devisavitvel non. We must remember, however, that the case he was considering required no construction of the act, since the only question was whether it applied to wills proved before its passage, and whether as to them it was constitutional. We are, indeed, quite sure that that eminent jurist did not give this question that careful consideration which he would have done had it been the point in that case. He says : “ That probate, the foundation of so many titles, we treat as a judicial decree, and the legislature thought there ought to be a time when it should be no longer questionable;” if, however, that probate was treated as a judicial decree, how could it be impeached in a collateral action ? Herein is found the inaccuracy of the above statement in that, before thq Act of 1856, it was not treated as a judicial decree except as to personal property. Judge Lowrie, in the case of Rowland v. Evans, held, that under the Act of 1832, the probate of a will even as to realty must be treated as a judicial decree, and hence, could not be collaterally attacked ; but for so holding he was reversed. Mr. Justice Bell, who delivered the opinion of this court, admits that the register is a judicial functionary, and that his decrees, within certain limits, are conclusive until reversed on appeal, and that it does appear somewhat anomalous to ascribe a binding efficacy to one act of probate which is denied to another, or to accord different degrees of stringency to the same probate, nevertheless, the old rule derived from the common law was held to be still in force, because the act did not, in express terms, alter that rule or make the probate as efficacious in devises of realty as in bequests of personalty.
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.
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Mr. Justice Gordon
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, [213]*213the charge of undue influence, and the due execution of the will, which appeal was dismissed, &c., the plaintiffs claiming under her are ■ conclusively estopped in this action by virtue of the Act of 22d April 1856; 3. That the evidence is incompetent.”
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 [214]*214the will might be controverted; it might be sustained to-day and overthrown to-morrow. No one could depend absolutely upon a title which involved a will, for no length of time could make such title secure. Here then was an evil, and a very serious one, and one which, we doubt not, the Act of 1856 was intended to remedy. But the question recurs when does this remedy become operative? Say the counsel for the plaintiffs, not until the end of five years, and the dictum of Mr. Justice Woodward in Kenyon v. Stewart, 8 Wright 179, is cited in support of that allegation, and it is undoubtedly in point, for that learned justice asserts not only that the word “ caveat ” in the Act of 1856 is inaccurately used, but that the words “actions at law.” mean an ejectment or any proceeding where the issue is devisavitvel non. We must remember, however, that the case he was considering required no construction of the act, since the only question was whether it applied to wills proved before its passage, and whether as to them it was constitutional. We are, indeed, quite sure that that eminent jurist did not give this question that careful consideration which he would have done had it been the point in that case. He says : “ That probate, the foundation of so many titles, we treat as a judicial decree, and the legislature thought there ought to be a time when it should be no longer questionable;” if, however, that probate was treated as a judicial decree, how could it be impeached in a collateral action ? Herein is found the inaccuracy of the above statement in that, before thq Act of 1856, it was not treated as a judicial decree except as to personal property. Judge Lowrie, in the case of Rowland v. Evans, held, that under the Act of 1832, the probate of a will even as to realty must be treated as a judicial decree, and hence, could not be collaterally attacked ; but for so holding he was reversed. Mr. Justice Bell, who delivered the opinion of this court, admits that the register is a judicial functionary, and that his decrees, within certain limits, are conclusive until reversed on appeal, and that it does appear somewhat anomalous to ascribe a binding efficacy to one act of probate which is denied to another, or to accord different degrees of stringency to the same probate, nevertheless, the old rule derived from the common law was held to be still in force, because the act did not, in express terms, alter that rule or make the probate as efficacious in devises of realty as in bequests of personalty.
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 [215]*215only after the end of the five years. Thus, instead of having a' new power conferred upon the register, and a new efficacy given to his act, we have but a limitation of the time within which the title of the devisee may be attacked. Yet, clearly, this is not the intention of the act, as appears, not only from the defect in the old law which it was intended to remedy, but from its language. The probate of the register shall be conclusive “as to such realty;” without more there could not be one particle of doubt as to the meaning of this statute; the doubt only begins when we come to the means prescribed for contesting the will. The framer of the act knew that it would not do to make the probate absolutely conclusive of the execution of the will; that some time must be given within which to contest that execution, but he evidently was not acquainted with the legal forms necessary to reach that end. This is evident from the manner in which he has used the word “caveat,” and also from the manner in which he has connected it with the words “and action at law.” He evidently regarded a caveat as a means or process for contesting a will, and an action or issue at law as a continuation thereof. Taking this view of the matter,' and it is the only one that can be adopted without the rejection of a word which was evidently deemed material by the framer of the act, and the difficulty is of easy solution. Thus the caveat will then mean the initiatory process, or notice preceding a contest before the register, and the action at law an issue triable in the Common Pleas, directed by the Orphans’ Court, after an appeal thereto from the decree of the register, and this appeal may be taken, in the ordinary form, at any time within five years. It is true we might substitute “or” for “and,” and in this manner make the word “caveat” stand for the whole process before the register and Orphans’ Court; and the words “action at law” for any collateral issue involving the validity of the will. This, however, is a use of these words which is less direct and natural than that we have given; moreover it perpetuates a doctrine always regarded as anomolous, and as antagonizing the rule, now universally recognised, that a judicial judgment or decree may not be collaterally attacked except for fraud.
Judgment affirmed.
Justice MurCur dissented, as the Act of 1856 is intended as one of limitation only.