McCay v. Clayton , 119 Pa. 133 ( 1888 )

Opinion,

Mr. Justice Paxson :

It was decided in Wilson v. Gaston, 92 Pa. 207, that the probate of a will by the register is a judicial decree which cannot be impeached collaterally in an action of ejectment brought in the right of the heir-at-law to recover real estate devised by said will. This case was followed by McCort’s Appeal, 98 Pa. 33; Cochran v. Young, 104 Pa. 333; Broe v. Boyle, 108 Pa. 76, and must be considered as having settled the proper construction of the act of 1856. It follows that the probate of a will is now as conclusive upon the title to real estate, as it had been under the act of 1832, in regard to personal estate.

All this was conceded by the appellants. They contend, however, that where an appeal has been taken to the decision of the register admitting,a will to probate, a verdict against the will in an issue devisavit vel non, and a reversal of the register’s decree by the Orphans’ Court, such proceeding is not conclusive under the act of 1856, and that the devisee under such will may still set it up to defeat the heir-at-law in an action of ejectment; or, to state it tersely, the decree of the register admitting a will to probate is conclusive, while his decree refusing probate is not so. We find no warrant for this proposition in the act of 1856. If it were capable of such construction it should be amended, for, to enact that a judicial decree is conclusive only when the judge decides in a particular way, would be an innovation of a serious character.

The probate of a will is a proceeding to establish its validity. A will can now only be contested in the manner prescribed by the act of April 22, 1856, that is, “by caveat and action at law duly pursued” within five years from the date of probate. This restricts the contestant to proceedings in the register’s office and an issue devisavit vel non directed by the Orphans’ Court. And there cannot be a doubt that when the result of such proceeding is against the validity of a will, it is as conclusive upon the real estate as it is upon the personal estate. In Smith v. Bonsall, 5 R. 80, it was said by Mr. Justice Kennedy : “ In the cases referred to, in which it has been held or said, that the probate of a will respecting lands, taken before the Register or the Register’s Court, was not conclusive, certainly no distinction was taken between the effect of a decision approving the will and one condemning it. But in Spangler v. Rambler, 4 S. & R. 193, the late Chief Justice in what he says evidently had reference to a decision as well against as for the will.”

The plaintiffs in error further contended that if this judgment is allowed to stand, the interests of those in remainder ought in some way to be protected. There are devisees for life under the alleged will of John B. McCay, with remainder to their unborn children. John and Emma, plaintiffs in error and the life tenants, are unmarried and without issue. The remainder is contingent upon their marriage and leaving issue surviving them. Such a remainder can only exist where it has a particular estate to support it. With the destruction of the particular estate the contingent remainder necessarily falls. It would be as easy to support a house by its roof as to support a contingent remainder without a particular estate. We need go no further than Blackstone for this. He says, and every student at law will remember it: “It is a well settled principle of law, that no contingent remainder can exist without a particular estate to support it.” The umbilical cord from which a contingent remainder draws its feeble life is very slight, and when this is taken away it drops into the grave. Something like this was said in Lyle v. Richards, 9 S. & R. 322.

Judgment affirmed.