McCort's Appeal

Mr. Justice Gordon delivered the opinion of the court The will of Daniel MeCort relates to and disposes of his real as well as his personal property, and, so far as it does relate to realty, it is subject to the provisions of the Act of the 22nd of April, 1856. Hence, the court erred in striking off the appeal from the register’s sentence, or decree, entered by the appellant on the 13th of November 1880.' The act inferred to makes the decree of the register before whom probate of any will, devising real estate, is made, “ conclusive as to such realty, unless within five years from the date of such probate, those interested to contest it shall, by caveat and action at law, duly pursued, contest the validity of such will, as to such realty.” Three things herein stated require our notice : 1. The’judicial and conclusive character of the register’s decree ; 2. The fact that five years is given within which to controvert such decree and contest the validity of such will; 3. That the act is limited to a devise of realty, hence it in no way affects the probate of a will, so far as it concerns personal property; as to it the limitation as found in the Act of 1832 continues to apply. Now, as we endeavored to show in the case of Wilson v. Gaston, 11 Norris, 207, in order to harmonize this incongruous statute with itself, and give it the force obviously intended by the legislature, we are obliged to construe the words “ caveat [37] and action at law,” as the beginning and ending of the procesa by which the register’s decree is to be controverted. Without an interpretation such as this we make the statute one of limitation only; we refuse to the sentence of the register the force of a judicial decree ; wo must strike out the word caveat as meaningless, repudiate the idea of a controversy involving the sentence of probate, and limit the contest to any action at law which may involve the issue of devismitwl non. Yet it is obvious that the framer of the act had all the while in his mind ■a contest over the validity of the probate, for such probate shall be conclusive unless “ those interested to controvert it” shall, by caveat, etc., contest the validity of such will. From this, it would seem clear, that the right to contest, the will is limited to those who may be interested to controvert the probate. This, however, can have force only on the hypothesis that the will, after probate, cannot be attacked except by a contest over the decree admitting it to proof. We can, indeed, readily imagine a case, as that of a purchaser after such decree, who may have no interest whatever in the probate, and is yet interested to contest the will. How, then, is all this to be harmonized and reconciled ? Certainly only by the construction recognized in Wilson v. Gaston — that is, by making all persons who may, within the five years, happen to be, or to become, interested in the will, interested also in the probate. In this way no right, unless perchance it be one purely technical, is taken from any person, and, at the same time, the provisions of a valuable statute are saved. We conclude, therefore, that under the Act of 1856, though it might be different did the Act of 1874 apply to this case, the appeal of the appellant, being within live years from the date of the probate, was iu time, and the court ought not to have stricken it off. The decree of the Orphans’ Court is now reversed at the costs of the appellee ; the appeal of the appellant reinstated, and a procedendo awarded.