Folmar's Appeal

The opinion of the court was delivered,

by AetNBW, J.

Theobald Eolmar made his will on the 9th of March 1847, and probate thereof was made before the register of wills of Somerset county on the 16th of March 1847, the subscribing witnesses (who are now both dead) testifying “ that they were present and saw and heard the within-named testator, Theobald Eolmar, sign, seal, publish, pronounce and declare this instrument of writing as and for his last will and testament.” This probate remained uncontested until the year 1869, the executor having in the mean time sold the real estate of the testator under a power contained in the will, settled an account and charged himself with the proceeds of sale. The distribution of the proceeds was referred to an auditor, and before this auditor the will was impugned as imperfectly executed, so held to be by him, and his report confirmed by the court. We think this was an error. After a probate of a will, which is primá facie sufficient evidence of the due execution of it even as to real estate, and no contest has taken place upon it for more than twenty-one years, and a title founded upon it in the mean time, nothing less than clear and satisfactory evidence of a strong character should be permitted to rebut the prima facie effect of the probate. Clearly there was nothing in the testimony of Peter Levy so clear and satisfactory as to rebut the strong presumption in favor of the will. But this question becomes of no importance under the provisions of the 7th section of the Act of 22d April 1856, declaring that the probate shall be conclusive as to real estate 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 proviso to this section gave to persons who would be sooner barred by the act, two years after its date to make the contest.

That this act is retrospective is decided in Kenyon v. Stewart, 8 Wright 180. See also Maul v. Rider, 1 P. F. Smith 384-5. It is true that Woodward, J., remarks in the opinion that if the party to be affected be not of full age an embarrassing question might arise, such as was discussed in Miller v. Franciscus, 4 Wright 339, alluding to the application of the exceptions contained in the General Limitation Act of 1785, § 3, to the Act of 1856, But in the later case of Warfield v. Fox, 3 P. F. Smith 382, where the question directly arose, it was held that the Act of 1856 makes no exception in favor of minors and femes covert, and that the exceptions in the Act of 1785 could not be applied. “ We hold, therefore (said Strong, J.), that the probate by the register of the proper county of any will devising real estate is conclusive upon all persons, whether infants, femes covert, non compotes mentis or not, unless within five years from the date of such probate the validity of the will shall be contested in the manner pointed out by the 7th section of the Act of 1856.”

The decree of the court below is therefore reversed, and the record is order to be remitted, with an order to proceed to make distribution of the fund in question to the persons entitled to the same under the will of Theobald Folmar, deceased, the costs of the proceedings and of this appeal to be paid out of the estate.