Schwilke's Appeal

Mr. Justice Mercur

delivered the opinion of the court October 4th 1882.

This record presents two separate questions. They are severally stated in errors assigned. The one is, that the court erred in directing an issue devisavit vel non to the common pleas, to try the validity of a paper purporting to be the last will and testament of William Millar. The other, that the court erred in revoking the letters testamentary issued thereon to the appellant.

1. The forty-first section of -the act of March 15th 1832, Pur. Dig. 1258, pi. 22, declares, “ Whenever a dispute upon a matter of fact arises before any register’s court, the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof.” Section sixth of the act of 19th May 1874, Id. 1933, gives to the Orphans’ Court all the jurisdiction and power vested “in the Orphans’ or Register's Court.” The language authorizing a register to issue a precept to the court of common pleas, directing an issue upon the facts touching the validity of a testamentary writing offered for probate, is not mandatory. Instead of the imperative “ shall,” applied to a Negister’s Court, the words “it shall be lawful,” are substituted : Wickersham’s Appeal, 25 P. F. Smith 334. The issue is of right under the 41st section cited, when the fact arising, and in dispute, is substantial and material to the inquiry, unless the whole evidence of the fact alleged be so doubtful and unsatisfactory that a verdict against the validUy of the will should not be permitted to stand : Cozzen’s Appeal, 11 Id. 196; De Haven’s Appeal, 25 Id. 337. In what manner the Orphans' Court shall obtain the information necessary to decide intelligently, neither the act of assembly nor this court has prescribed. We will not assume that its sound discretion was unjustly exercised. If the court refuse to award the issue, it is such a definitive decree that an appeal therefrom lies to this court. In that case we consider the whole evidence on which the court below decided, and determine as to the correctness of its conclusion.

Directing the issue is not a definitive decree from which an appeal lies to this court. It is preliminary only. It is merely one step toward obtaining the verdict of a jury on the question of the. truthfulness of the facts alleged: McCarter’s Appeal, 28 Id. 401; Gellinger’s Appeal, Lancaster Bar of June 10th 1882. After judgment on the issue, the question of the sufficiency of the evidence to justify the finding, may properly be brought before us. The record shows the facts averred by the appellee. If they be true, their materiality and controlling effect are undoubted. We see no such abuse of the discretion vested in the Orphans’ Court, as to require its order for an issue to be interfered with.

2. The order revoking the letters testamentary is a final decree. It was made without citation and due notice to show cause, and without a hearing. Inasmuch as a preliminary step had been taken toward testing the validity of the will, the learned judge appears to have assumed that this gave him power to revoke the letters. No authority is cited .to sustain this view. No act of assembly recognizes this as sufficient cause for-revocation. If the invalidity of the will be established, it will. work a revocation of the letters. Until so decided, they can only be revoked for cause shown after due notice and hearing, as prescribed by statute.

And now, October 4th 1882, the appeal from the order directing the issue devisavit vel non, is quashed; and the decree revoking the letters testamentary, issued to the appellant, is reversed.