Rogers's Estate

Opinion by

Mr. Justice Williams,

The question raised in this case is one of practice. It appears from the petition and answer that James Rogers, a resident and property owner in Pen Argyl, Northampton county, committed suicide in his own house on the sixth day. of September, 1887. At the time his body was discovered an envelope was found in the same room directed to John Jackson, Sr. Inclosed in this envelope was a paper in the handwriting of Rogers which was presented by Mr. Jackson to the register for probate as the will of the decedent. Letters of administration cum testamento annexo were issued to Richard Jackson, who proceeded to settle the estate and file his administration account. John Jackson claimed to be the owner of the property of which Rogers died seized, as the sole devisee named in the paper' which had been probated. A little less than five-years after the death of Rogers, one John Tozer came from his home in England to Northampton county and appealed from the decree of probate. He presented his petition in the orphans’ court, in which he alleged that the true name of James Rogers was James Tozer; that he came from England some years before, leaving his fami- ^ ly behind him; that the petitioner was a son and heir of James Tozer, known in Pen Argyl as James Rogers; that the paper under which John Jackson claimed was not the will of his father, as its execution had been procured by undug and improper influence; and asked that an issue devisavit vel non be directed to determine the validity of the alleged will. Jackson replied in an answer denying the facts set out in the petition, and putting them fairly in issue. He then asked the court to direct an issue to determine the question so raised, ’viz.: the identity of James Rogers with James Tozer, and the relationship of the petitioner to the deceased. The learned judge refused to direct this issue but at once directed the issue devisavit vel non. This is the ground of the present appeal. We have no doubt that the proper practice requires an issue to determine the relationship or interest of the proposed contestant, in the first instance, where the relationship or interest is denied, and where as in this case the prima facies are- against the petitioner. If John Tozer was the legitimate son and heir of James Rogers he had a right to be heard on the validity of the paper that had been admitted to probate, and operated to disinherit him. If he was not, then he had no standing, and his petition for an issue should have been dismissed as an impertinent attempt to interfere in what was no concern of his. It was proper therefore for Jackson to insist upon a determination of this question in limine. Both issues might have been directed, but that which was to determine the contestant’s right to be heard should have been tried first, and if the result was adverse to the contestant the other should have been dismissed. This question was determined in Cullen’s Estate, 12 W. N. 34, affirmed by this court in Taylor v. The Commonwealth, 13 W. N. 378.

There was evidence given on the trial of this issue in the court below that would have been proper upon the trial of the issue asked by Jackson. It is before us. After an examination of it we are persuaded that it sustains the allegations made in the petition and. would justify if not require a jury to find in favor of the contestant’s right to be heard as the son and heir at law of the decedent, known in Pen Argyl as James Rogers. It would tend therefore to protract litigation for no useful purpose, if we should reverse the learned judge for his refusal to award the issue asked for by the appellant. We have often held that we would not reverse for an error which did no real harm to the party complaining. We recognize however the rule contended for by the appellant as the correct one, and have no doubt that he was entitled to the preliminary issue he asked for. The reason why we do not reverse is that which wé have already stated. It would be of no service to the appellant in view of the evidence before us, and would involve delay and expense to the parties to no real purpose.

The appeal is dismissed, but without costs.

See also the next case.