Galli's Estate ( 1915 )

Opinion by

Mr. Justice Elkin,

A motion has been made to quash on the ground that there is no definitive decree from which an appeal will lie; That an appeal only lies from a final and definitive decree in cases of the character here presented is too well settled by precedent and authority to be open to doubt. The statutes so provide and the cases so decide. No further discussion of this proposition is required. On this branch of the present case the only question that can arise is whether the decree entered by the Orphans’ Court is final and definitive within the meaning of the rule, and the answer must depend to a large extent not only upon the nature of the decree but on the subject matter to which it relates as well. The record does not show the precise “disputable and difficult” questions certified by the register to the Orphans’ Court for decision. The omission makes our task more difficult because the character of the questions certified has an important bearing upon the nature of the decree to be entered. We assume, however, as all parties concerned seem to have assumed, that the register took no formal action of any kind except to certify all matters in controversy relating to the probate of the will to the Orphans’ Court, where the proceedings were de novo. The Act of March 15, 1832, P. L. 135, not only authorized the certification but upon the facts disclosed by the present record made it the duty of the register to certify the “disputable and difficult” questions as requested by all parties in interest: Cozzen’s Will, 61 Pa. 196; Com. v. Bunn, 71 Pa. 405. The probate depended upon the decision of the questions certified. Three instruments were offered for probate as the last will and testament of testatrix. Should all the writings be admitted to probate, or only part of them? Did they all constitute a completed testamentary disposition of the estate of testatrix? Even if some of the writings did not constitute a testamentary disposition of property because not properly executed, should they be admitted to probate as papers testamentary in character and so immediately connected with what may be considered the valid will as to indicate the intention of the testatrix? While the record does not show that these exact questions were certified for decision, the course adopted by all parties in the court below clearly indicates that they were all considered and passed upon. The gates were opened and the investigation covered the entire field. The expert testimony took a wide range and must have been deemed full and complete by the interested parties. With the record thus made up the court entered its decree directing the register to admit the three writings purporting to be wills to probate. This is the decree from which the present appeal was taken. If no appeal had been taken, the record would have been remitted and the register required to probate without further hearing. His act under the circumstances would have been a ministerial one. It could not be that having certified the questions in controversy to a court of competent jurisdiction for decision, the register after decree entered could disregard what had been decided and conduct an investigation on his own account. All controverted questions were certified to the Orphans’ Court; all testimony was taken in that court; no question of jurisdiction was raised; and all parties presented proof looking to a decree upon the merits. Now that the case has been heard and decree entered, why send it back to the register to travel over the very same ground, have a hearing on the sáme evidence, and when final action is taken by that officer, then take an appeal to the Orphans’ Court and from there here. Such circumlocution is not to be commended and should never be resorted to unless clearly required by the law. In our opinion it is not required in the present case. In this case 'there was no issue growing out of a caveat entered against the probate, no precept for an issue to the Common Pleas was filed, and no objections were made to the granting of letters of administration. In such cases the issue necessarily involves action in the first instance by the register and this is the underlying thought of the decisions relied on to sustain the motion to quash. To this class of cases belong: Wilson v. Gaston, 92 Pa. 207; Taylor v. Commonwealth, 103 Pa. 96; Hoopes’s Est., 152 Pa. 105; Com. v. Thomas, 163 Pa. 446; Crawford v. Schooley, 217 Pa. 429; Zeigler v. Storey, 220 Pa. 471. It is suggested that the Orphans’ Court has no original jurisdiction and this must be conceded. The cases so hold, but it does not follow that the court below had no jurisdiction in the present case. The Act of 1832 gave it jurisdiction to hear and determine the “disputable and difficult” questions certified by the register and in entering a decree it simply performed a statutory duty. The present case is easily distinguished upon its facts from all the cases relied on to sustain the motion to quash. It is not our intention to modify or change the rule of those cases in the slightest degree. They are authoritative and must be accepted as conclusively establishing the doctrine upon which they are based. In the case at bar the situation is entirely different for in the very nature of things the register was not in position to dispose of the complicated questions involved in the probate. He took no initial step by way of hearing testimony but certified the whole record to the Orphans’ Court at the beginning. The issue involved the question of citizenship, of what the laws of France and Italy require in the execution of a will, and many other incidental and important matters. The procedure adopted by and with the consent of all interested parties clearly indicates that the decision of the Orphans’ Court was intended to be binding upon the register. His duty in following the direction of that decree was a ministerial act, and not the performance of a judicial function as it would have been had he heard the case in the first instance, in which event decision and formal action would have been required by the register in the exercise of the power vested in him. Without more our conclusion is that the decree in the present case is definitive under its peculiar facts and that the appeal was properly taken.

Upon the merits our discussion will be brief. The testatrix, an American lady, married an Italian count, and lived for many years in the City of Paris. Her estate consisting of personal property was held in Pennsylvania. She made a number of wills, which it is apparent, were intended to cover different situations as they had arisen from time to time. For instance she changed her will in some respects after the death of her husband, in others after the death of intended beneficiaries, and in others for reasons perfectly natural under the circumstances. One will was holographic, the others were not, but the intention of the testatrix is clearly manifest in all of them. She intended one to supplement and explain the other, because she said so in language too plain to be misunderstood. She was not familiar with the requirements of the law relating to the execution of wills and this gives rise to the present controversy. Then, again, the question of citizenship is involved because as to the execution of a will the requirements of the law'in the different countries are not the same. Some of the wills would be valid in this country and not in France or Italy. All of the writings are testamentary in character and the later ones contain positive statements that certain provisions of the former ones are to be carried out according to the direction of testatrix. Her clearly expressed intention was to dispose of her estate by the three testamentary papers offered for probate. The court below decided that the holographic will was the only one executed in accordance with the laws of Italy, and therefore the only valid will of an Italian citizen, which testatrix was conceded to be, but that the other wills should be admitted to probate because they contain references to the subject matter and body of the holographic will in such manner as to bring them within the authority of Thompsons’ Executor v. Lloyd, 49 Pa. 127; Bakers’ App., 107 Pa. 381; Nelsons’ Est., 147 Pa. 160. Under all the circumstances we have concluded that there was no error in admitting all of the wills to probate. What effect shall be given them to be left for future consideration and determination. Whether the holographic will republished provisions referred to in former wills, and what effect the other wills can be given in ascertaining the intention of the testatrix, and all other questions relating to the disposition of the estate here involved, are left open first for the consideration of the auditing judge and subsequently for the Orphans’ Court, or for this court on appeal if that be deemed advisable. We think this is the most satisfactory disposition that can be made of the case upon the record here presented. This will give counsel and courts ample opportunity to consider every phase of the questions raised in the light of the law and facts after hearing and full argument. The probate will not be regarded as determining what distribution shall be made of the estate under the provisions of the will. This is for the auditing judge in the first instance before whom may be raised every question pressed upon us in this appeal. In many respects the case at bar is analogous to that of a bequest void for charitable uses because the will was not executed at a time nor in a manner prescribed by law. This does not prevent the probate of the will but goes to the question of distribution: Carson’s Est., 241 Pa. 117.

Decree affirmed. Costs to be paid out of the estate.