Commonwealth ex rel. Winpenny v. Bunn

The opinion of the court was delivered, by

Thompson, C. J.

Every register has, within his county, jurisdiction of the probate of wills, and of granting letters testamentary and of administration, but he has not the power at discretion of disposing of every matter which may arise in the performance of his functions, if objected to by a competent party. The 25th section of the Act of March 15th 1832 plainly shows this. It says: “ Where objections are made, or a caveat is entered against the probate of any last will and testament, and no precept for an issue is directed by the register into the Common Pleas as aforesaid (sect. 13), or where objections are made to the granting of letters of administration to any person applying therefor, or where any question of kindred or other disputable and difficult matter comes into controversy before any register, he shall, at the request of-any person interested, appoint a Register’s Court for the decision thereof, to be held at a time certain, and as soon as convenient,” &c.

These are plain words, and are imperative beyond a doubt, in any of the contingencies mentioned in the section, that the register shall proceed no farther himself but call a Register’s. Court. The only serious argument against this construction, it was thought, arose out of the 13th section of the same act, which provides that “ whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof, any matter of fact touching the validity of such writing, it shall be lawful for the register, at the request of any person interested, to issue a precept to the Court of Common Pleas of the respective county, directing an issue to be formed upon the said facts, and also upon such others as may be lawfully objected to. the said writing,” &c. In several cases in this court the action of the register has, under this section, been held to be discretionary as to issuing the precept to the Common Pleas for the trial of facts alleged in the caveat as objections to the probate of a will: Wikoff’s Appeal, 3 Harris 281; Cozzens’s Will, 11 P. F. Smith 196. The words in the section “ that it shall be lawful for the register, at the request of any person interested, to issue” the precept to the Common Pleas, clearly imply a discretion. Not so the 25th section. The words there used are as clearly imperative. They are, the register “ shall, at the request of any person interested, appoint a Register’s Court,” on the happening of any of the contingencies mentioned in it. That one of these sections should imply a discretion in the register, and the other not, is to be ascribed to the widely different purposes of the sections. A careful reading of them will very plainly show this. The 13th section has no reference to the Register’s Court at all. It enables the register to ignore it, and apply directly to the Common Pleas for the determination of the disputed facts alleged as the grounds of the caveat; and thus have the facts established by the trial had there, says the section, “and when certified to the register as aforesaid, shall not be re-examined by the said register, nor upon any appeal from his decision.” The 13th section is alone designed for a proceeding under a caveat, and request for an issue to the Common Pleas. This the register may grant or not, at his discretion. But if he refuses, what then ? Is he to go on and try questions of law and fact himself, if objected to by the parties in interest ? By no means. As he is not required to be learned in the law, the act wisely provides that any party interested shall, “ where any question of kindred or other disputable and difficult matter comes into controversy,” either on a caveat to the probate of a will where no issue has been directed by the register as provided in the 13th section to the probate of a will, or in granting letters of administration, have the advantage of law-judges to determine such “ disputable and difficult matters” by making a request for the same. In which case the section says, “ the register shall appoint a Register’s Court to be held at a time certain, and as soon as convenient.” The court thus constituted of the register and any two of the judges of the Common Pleas, may dispose of all disputed facts, or at their discretion direct issues of fact necessary to the determination of the controversy to the Court of Common Pleas; and thus the party will have the advantage of law-judges to hear his case.

This is simple, and need not occasion delay, a remark that has been made with force of the 13th section, and against the idea that its directions were imperative. But under the 25th section a delay of over three or four weeks at most need not occur, as incident to the call of a Register’s Court. This delay is altogether easier to be endured than the grant of letters by the register to objectionable parties, or the probate of a will in the face of “disputable or difficult matters,” only to be reversed on appeal to the Register’s Court. It seems to me the line of action under these two sections is so distinct that the necessary interpretation of either is no precedent for a like construction of the other.

Now, it is not at all intended to be asserted that the register must call a Register’s Court without being presented with a statement of disputed facts, “ disputable and difficult matters,” as the act says. Where that is done, the register is bound to send the case to the Register’s Court: Cozzens’s Will, 11 P. F. Smith, 196. This is the only clause in the 25th section which can be said to imply a discretion on bis part; but where the matter is plainly disputable, his discretion ceases and his ministerial duty begins; that duty is enforceable by mandamus. Where there is nothing disputable and difficult we would not interfere on account of the refusal of the register to call a Register’s Court.

In the case in hand, the suggestion copied into the alternative mandamus, shows that a caveat had been filed at the instance of the relator against the probate of the will of A. Jackson Winpenny. No issue was directed upon it, as might have been done under the 13th section of the Act of 1832. The caveat itself is not on the paper-books, and what were its grounds, we do not know. But the register proceeded to take probate of the will, and the relator sets forth that neither of the subscribing witnesses proved its execution by the testator ; whereupon counsel for the will called other witnesses to prove the genuineness of the testator’s signature. Among them was Charles W. Otto, who, on his examination, producedibefore the register a certain check upon which was a signature of the testator, and “by means of which,” says the suggestion, “ the witness testified as to the manner in which the decedent. spelled his name.” Two other witnesses testified to the genuineness of the signature of the decedent to the writing purporting to be his will, but stated that J. Bolton Winpenny, who offered the will for probate, had exhibited to each of them a check upon which the testator’s name purported to have been written, and asked them if they could recognise the testator’s signature to the will; that the contestant of the will of the testator demanded of the counsel of J. Bolton Winpenny, the production of the check or checks used by his witnesses, and which he alleges was material to him in the matter in controversy; and also for the production of an alleged deed of the testator, in his, the said J. Bolton Winpenny’s, possession, which he through his counsel refused to produce, as well as said checks, and which also he alleges to be material in the determination of his case. Upon this refusal, the relator avers that inasmuch as the register has no general power to enforce the' attendance of witnesses, or the production of papers, excepting wills, and the subscribing witnesses thereto, he applied to the register to convene a Register’s Court for the determination of the matters in dispute arising on the question of the probate of the said will. This request, it seems, the register declined to comply with.

The answer of the respondent, the register, to the alternative mandamus, is simply that whether he is to call a Register’s Court or not, is a judicial duty and act, and cannot be coerced by mandamus ; and that the only remedy of the relator is by appeal when he shall have decided the question before him, which he still reserves for a future opinion upon.

We have decided the point already against this position on what has been said above on the 25th section of the act. When a sufficient case has been shown, we have said that the register is bound to call a Register’s Court, and so says the case of Cozzens’s Will, supra. Of course, at that point, the acts of the register are no longer judicial, they necessarily become ministerial. Mandamus lies not to enforce judicial action, it is admitted, but does to enforce ministerial duties, even when they are to he performed by judicial officers: Commonwealth ex rel. Griffith v. Cochran, Sec’y of the Land Office, 5 Binn. 87; Commonwealth v. The Commissioners of Allegheny County, 1 Wright 279. This writ lies to compel the performance of a ministerial act by a public officer: Tap. on Man., Am. ed. 1858, pp. 65, 67; Moses on Mand. p. 49. This point need not be further discussed, the principle is elementary.

Bid the relator present to the register on requesting a Register’s Court to be called in relation to the probate of the will in question, such a case as entitled him to have his request granted ? We are of opinion1 he did. We discover no power in the register to subpoena and compel the attendance of witnesses other than the subscribing witnesses to, or witnesses alleged to be capable of proving a will, or to enforce the production of any paper, saving and excepting the testamentary writing itself. That power is expressly given by the 8th section of the Act of 1832, and by the 9th section of the act, the register is also authorized to issue commissions to take the depositions of witnesses on interrogatories filed in his office, in other counties or states, or in foreign countries. This is all the power on the'subject of testimony given to the register by the act. This being so, the register could not compel the production of the checks used by the witnesses for the will, and from which it would seem, comparisons were drawn, with the signatures to the will, and which J. Bolton Winpenny refused to produce, to be used by the relator. It is, therefore, very probable, that he could not meet the evidence of these witnesses without the production of these papers, and their production could only be certainly secured in a Register’s Court.

In nothing said herein do we mean to say that the acts of the register are in no case judicial. They are always so, where, without any objections probate has been made of a will, or upon granting letters of administration. There the redress is by appeal. These acts cannot be impeached collaterally.

There is a decision of the Register’s Court, in 6th Philadelphia Reports, p. 86, Alex. Herron’s Estate, which refers to the 25th and 41st sections of the Act of 1832, and seems to hold it discretionary under both sections with the register, under the former section, and the Register’s Court under the latter, whether in the one case the register shall call a Register’s Court when requested, or the Register’s Court shall direct all issues when requested. There is no parity in reason between the two acts. The Register’s Court, with judges learned in the law and with all the powers of a court, ought in r'eason unless expressly limited, to be allowed the discretion of a court in determining upon the necessity of employing auxiliary powers to determine upon ultimate results, especially where both delay and expense are sure to follow its exercise; but it is a different case when deficient powers, as well as inadequate qualifications exist; the reason for a different rule is thus apparent, and marks the distinction between the terms used by the legislature in these different categories. It is enough to say here, of the case referred to of Herron’s Estate, 6 Phila. Rep. sup., that it arose under a different section of the Act of 1832, (viz. the 41st) from that which gave rise to the application here. That was for an issue from the Register’s Court to the Common Pleas; this for a call of the Register’s Court only. The Act of 1832 is not of very easy consistent interpretation, but every section was undoubtedly designed to have its peculiar operation in the system provided by it, and must be so construed. The revisers say that it was “compiled from nearly twenty different Acts of Assembly and Statutes,” it was therefore doubtless very carefully considered by them, and all its provisions must be construed to give effect to the whole if possible. We are of opinion, after a careful study of the act, that it was the duty of the register in this case to have called a Register’s Court for the reasons set forth in the request for it in the case, and in the suggestion filed, and that the answer of the respondent is altogether insufficient in law to answer the suggestion of the relator.

Now, March 11th 1872, after argument by counsel, and consideration of the premises by the court, we are of opinion that judgment be entered herein for the Commonwealth, and that a peremptory mandamus do issue against the said William M. Bunn, register, to proceed forthwith to do the matters and things in the alternative mandamus mentioned, namely, to call a . Register’s Court for the hearing and determining upon the probate of the will of A. Jackson Winpenny, now pending before him, and he is ordered to pay the costs of this suit.