Estate of Shoenberger , 139 Pa. 132 ( 1891 )

OPINION,

Mb. Chief Justice Paxson :

We quite agree with the learned judge of the Orphans’ Court that the decree of the register of wills, granting letters testamentary, is absolutely void, if it appears on the face of the proceedings that he had no jurisdiction, and that it may be impeached in any collateral proceeding. We do not differ upon the law, only upon its application. The mistake into which the learned judge below inadvertently fell was in assuming that the register of wills for the county of Philadelphia had no jurisdiction.

The testator, John H. Shoenberger, was a resident of the city of New York, and died there on November 12, 1889, leaving a large estate, in New York, Pennsylvania, and elsewhere, His will was duly probated in New York; an exemplification of the record was presented to the register of wills for the county of Philadelphia, and letters granted there to the executors named therein, as to the estate in Pennsylvania. One of those executors was the appellant company; another was a gentleman residing in that city; the other two executors were residents of Pittsburgh. The register of wil[s for the county of Allegheny, conceiving thatletters were improvidently granted in Philadelphia, issued a citation to the executors to show cause Avhy they should not appear before him and take out letters in Allegheny county, and, after hearing testimony, decreed that he would issue letters to them upon their applying to him for that purpose within ten days, and that, upon their failure to do so, letters, with the will annexed, would be issued to some other fit person. From this decree the appellants appealed to the Orphans’ Court, which court affirmed the decree of the register. The appellants then entered this appeal.

The action of the court below was based upon the act of March 15,1832, § 6, which provides that “ letters testamentary and of administration shall be granted only by the register of the county within which was the family or principal residence of the decedent, at the time of his decease, and if the decedent had no such residence in this commonwealth, then by the register of the county where the principal part of the goods and estate of such decedent shall be.” The twelfth section of the same act provides that “ copies of wills and testaments proved in any other state or country, according to the laws thereof, and duly authenticated, may be offered for probate before any register having jurisdiction, and proceedings thereon may be had with the same effect, so far as respects the granting of letters testamentary, or of administration, with the will annexed, as upon the originals.” The learned judge below held that these sections must be construed together, and that, wher.e letters have been granted in another state, they can only be probated here in the county where the principal part of the goods and estate of such decedent shall be. If we concede the correctness of this position, which we do not regard as necessary for the purposes of this case, we are still of opinion the decree below cannot be sustained. •

When application was made to the register of wills of Philadelphia, he had a right to inquire as to where the principal part of the goods and estate of the testator were situate in this state. It was a jurisdictional question which it was his duty, as well as his right, to decide. He therefore had jurisdiction over the subject matter, and his decision cannot be set aside collaterally as void. In this respect, the case differs from those cited. In Wall v. Wall, 128 Pa. 545, the register had admitted to probate a will which showed upon its face that it was no will. It was not signed, nor was its non-execution accounted for under the act of 1833. This clearly appears by the opinion of Mr. Justice Williams, who said at page 554: “ The proofs produced, instead of showing that the paper was approved by the testator, but its execution prevented by the extremity of his last sickness, showed very clearly that he had not examined it and could not have intended its execution, because he was dead when it was finished. The register was therefore without jurisdiction. The writing produced was not signed, nor was the failure to sign accounted for, as the act of 1883 required, in order to entitle the writing to probate.”

Frick’s App., 114 Pa. 29, was much relied upon by the ap-pellee, but it does not meet the case. There, William Baldwin, the decedent, was a resident of Fayette county, in this state, where he died intestate in 1834. None of his relatives appearing to claim administration, letters were granted by the register of that county to H. C. Frick, on February 13, 1884. Prior to the granting of these letters in Fayette county, to wit, on January 15, 1884, letters of administration had been taken out in Massachusetts, and, on February 8, 1884, ancillary letters of administration were granted on the same estate by the register of Allegheny county. After considerable litigation, which it is not necessary to refer to in detail, Frick’s letters were finally sustained by this court. It is plain that the letters granted in Allegheny county were void, for the reason that the decedent was a resident of Fayette county.

The learned judge lays much stress upon the fact that there is no averment or finding in the records of the proceedings before the register of Philadelphia county, that the principal part of the estate was in it. But it is begging the question to assume that he did not pass upon it. The fifth section of the act of 1832 contains no provision that the register shall preserve the evidence upon which he acts, and we are bound to presume, as in every case of a judicial officer, that he has done his duty. While his decision stands unappealed from, it is conclusive, and cannot be reversed and set aside by the decision of the register of another county. We need not pursue the subject further.

The decree of the Orphans’ Court, affirming the decree of the register and dismissing the appeal therefrom, is reversed and set aside at the costs of the appellees.