Kates's Estate

Per Curiam,

The first specification alleges that the court below erred in refusing to send their precept to the court of common pleas of Phila. county to try before the jury the following question of fact: “ Whether Theodore N. Kates is or is not the son of William and Eliza Jane Kates.” The second and fifth specifications raise the same question.

The 55th section of the act of March 29, 1832, P. L. 208, provides as follows:

“ The orphans’ court shall have power to send an issue to the court of common pleas of the same county, for the trial of facts by a jury, whenever they shall deem it expedient to do so.” This act merely confers upon the orphans’ court the power which had been exercised by a chancellor to direct an issue to the common pleas to determine a particular question of fact as to which he felt a doubt. The verdict of a jury in such case was for the purpose of enlightening his conscience as to the fact in question. He was not' bound to accept the verdict of the jury; on the contrary, he might reject it, unless satisfied that it was right. If has never been hold that a chancellor was bound to send such issue to a jury, unless he deemed it essential to a proper disposition of the case. In other words, it was a matter of discretion. The same rule applies to the orphans’ court under the act of assembly above cited. Sheehan’s Est., 139 Pa. 168, does not decide that the orphans’ court is bound to send an issue to a jury whenever requested. It is true, we said that, under the peculiar circumstances of that case, the question of identity was one which would have justified an issue. No issue was demanded, however, as the parties preferred the decision of the court upon the facts. In the case in hand there was a demand for an issue, which was refused. We cannot say this was error. It was a matter within the discretion of the court.

The third, fourth and sixth specifications allege that the court below erred in refusing the appellant’s demand for an inquest to make partition of the real estate of William Kates, deceased. As the appellant had failed to establish his claim to be a son and heir of William Kates, it is manifest he had no standing to apply for an inquest to make partition of the real estate of said deceased. The court below distinctly found that appellant’s claim to be the son of William and Eliza Jane Kates was not sustained by the evidence, and this finding is not assigned as error. Had it been specifically assigned, it would not have availed the appellant. We would not overrule the finding of the court below upon a question of fact, except for clear error. We cannot say that any such error exists in this case. The testimony of the appellant was too vague and inconclusive to establish his right to a dead man’s estate, especially in view of the great delay in asserting such right.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.