Mathews v. Biddell ( 1898 )

OprNioír by

Smith, J.,

With the probate of the will the register’s judicial powers ceased. Under the constitution all questions thereafter touching the probate or the validity of the will are to be determined by the orphans’ court, on appeal from the register’s decision, where the proper issue may be framed. In the present case a will was proved June 1,1891. On Ma}r 30, 1896, the appellant filed a petition with the register alleging undue influence in the execution of the will and asking for the revocation of probate and for further relief. To this an answer was filed and the register proceeded to take testimony, before himself, presumably, touching the issue thus presented. He made no order or decree in the premises but in December, 1896, filed a bill of costs with the prothonotarj^, against the appellant, for “holding register’s court,” for “stenographer’s fees ” in taking testimony “ specially employed by the register,” and for “ witness’s fees for proponent.” From the taxation of these costs by the prothonotaiy an appeal was taken to the common pleas, where objection to the proceeding was made on the ground that register’s courts were abolished by the constitution of 1874, and “the fees must go with the court.” The court allowed the items for holding register’s court and for stenographer’s services, disallowed the item for witness’s fees, and as to the constitutional objection to the proceedings said: “ Whether or not this is true matters not in this case. The applicant chose this forum for attacking the will of her deceased father, and compelled the respondent to appear and defend, and if this were the only reason the item for holding of register’s court would not be disturbed; but it is argued or alleged that the sum of $26.25 is excessive for seven days’ holding of court. In this the court concurs. The act of March 15, 1832, provides for register’s fees in such cases, and fixes the fee at $2.00 per day, and the Act of March 1, 1865, P. L. 259, increases this fee fifty per centum. Thus it will be seen that the register is entitled to but $3.00 a day, instead of $3.75, which he charged. This item is therefore reduced to $21.00, instead of $26.25.

“As to the stenographer’s fees, an examination of the testimony taken, both of witnesses for the appellant and respondent who used him in the contest over the will above mentioned, discloses the fact that there were five hundred folios of typewritten testimony taken. While it is true that the stenographer’s fees are not itemized at so much per day or so much per folio, yet the fee charged for the work done is so small in comparison with that paid for like work in the courts that it should not be disturbed. The stenographer was a common benefit to both parties, not only to the register in the matter of saving of time and in expediting the proceedings, but much more satisfactory than if the register had taken the testimony in longhand. If all the stenographer’s charges were so moderate as these, the court Avould take great'pleasure in approving them. . . .

“ While it is true that there is no formal decree in the certificate of the register of wills directing Selina Biddell to pay the costs appearing in the certificate of the register, yet the paper itself discloses the fact that the bill was made to her. As has already been said, the defendant chose to contest the will of her deceased father before the register, bringing witnesses before him and asking him to decide upon the validity of the will, and to set the same aside, and the respondent was compelled to produce witnesses in the same forum, and the court is not disposed to strike down the fees charged for the service required of the register and the charge of the stenographer.”

It is difficult to understand how the services of the stenographer, or of the register, for that matter, wére “ a common benefit to both parties,” in this unconstitutional proceeding. It is not alleged that the testimony thus taken was under a rule or order of court, or for its use; while more than five years had elapsed before the services were performed and no proper action was taken within that period to contest the validity of the will.

It is a plain attempt to enforce compensation for the services of a court which was abolished by the constitution and its duties transferred to another tribunal, under the plea that, as the proceedings were instituted on the petition of the appellant, she is therefore bound to pay for the work done on the same basis and with like remedy as if the register were still authorized to hold court. The proceeding is unwarranted in law and cannot receive judicial sanction. Courts will not countenance much less assist in attempts to perpetuate institutions abolished by the constitution, or enforce by special remedy the collection of charges for services forbidden by law. No principle of equity will aid a register of wills in the violation of his .official duties. The claim allowed by the court below was wholly personal to the register: the charge for services of a stenographer is as unauthorized as the charge for holding a register’s court.

The decree of the court below is reversed, the taxation of costs against the appellant set aside and it is directed that the costs of this proceeding be paid by the appellee.