Taylor v. Commonwealth

Mr. Justice Stebbett

delivered the opinion of tlie court,

Unless the caveators are of kin to Peter Cullen, deceased, they have no standing in court as parties to an issue devisavit vel non to test the validity of the instrument purporting to be his last will and testament. If they were mere volunteers, having no interest in the estate either as legatees or next of kin, they were intruders and had no right to object to the probate of the will. It was solely on the ground of kinship to the decedent that they claimed the right to intervene and demand an issue. That fact was seriously disputed and denied, and thus a preliminary question was presented which should have been settled before tlie precept to the court of common pleas was issued. When that question of fact was raised, it would have been the duty of the Register, tinder the law as it stood before the adoption of the present constitution, to have convened a Register’s court for the purpose of determining, first, whether the caveators or either of tliem were of kin to the decedant, and if so, whether an issue should be directed. An adverse decision on the first question would have put them out of court and ended the controversy so far as they were concerned, for the very obvious reason that they could have no interest in the proposed issue.

Register’s courts were abolished by the constitution of 1874, and their powers and jurisdiction transferred to the Orphans’ Court. In every county in which a separate Orphans’ Court is established the Register of wills is, ex officio, “ clerk of such court and subject to its directions in all matters pertaining to his office,” that is, to his office as clerk of the separate Orphans’ Court. In his official capacity as Register of wills ho has independent judicial acts to perform in which he is not subject to the direction of the Orphans’ Court, except by virtue of its appellate jurisdiction. It may reverse his decisions oil appeal, but cannot, in the first instance, control the exercise of his judicial discretion in matters strictly pertaining to his office as Register. It follows, therefore, that the relator was not concluded by his application to the Orphans’ Court for an order on the Register to “certify the said disputable and difficult matter ” to that court, nor by its refusal to make the order prayed for. When the Register refused to certify the preliminary question to the Orphans’ Court, and insisted on issuing liis precept to the Common Pleas, the relator had a right to apply to the latter court for a mandamus commanding him to forthwith “ certify the said difficult and disputable question of kindred” to the Orphans’ Court. That would have been the better course. It. was neither necessary nor proper for him to first apply to the Orphans’ Court; aod, having done so impro violently, he should not be prejudiced thereby. The case was clearly within the jurisdiction of the Common Pleas. The question involved was duly considered, and, in the exercise of its sound discretion, the court awarded the peremptory mandamus. In so doing there appears to have been no error that calls for our interference. Neither of the specifications of error is sustained.

Judgment affirmed.