Broe v. Boyle

Chief Justice Mercur delivered the opinion of the court, January 5th, 1885. The correctness of this judgment depends on the effect to be given to section 7 of the Act of 22d April, 1856: Pur. Dig. 407, pi. 12. It declares: “The probate by the Register of the proper county of any will devising real estate shall be conclusive as to such realty, unless within five years from the-date of such probate those interested to controvert it shall by-caveat and action at law duly pursued, contest the validity of such will as to such realty'.” The will of Jane Boyle, devising the land in question, was duly probated by the Register of Wills of the proper county' on the first day' of September; 1879. No attempt was made to contest its validity by caveat, action at law, or otherwise, until the entry of the action in this case, on the 14th of October, 1884. More than five years from the date of the probate had then fully expired. The attempt is to avoid the conclusive-effect of this probate by invoking the aid of the 16th section of the Act of 8th April, 1833, which declares, “a will executed by a single woman shall be deemed revoked by her subsequent marriage, and shall not be revived by the death of her husband.” When Jane Boyle executed this will in 1866 she was a feme sole.' She married in less than one year thereafter, and her husband died in 1875. She remained his widow until her death in July, 1879. Pier marriage operated as a revocation of her will, and the mere death of her husband did not revive it. She was not, however, precluded from reviving or republishing it after the death of her husband. She had preserved it uncancelled and unmutilated. No doubt is cast on her sound mind and entire freedom from all improper influences when it was executed, nor to the continuance thereof during the whole of her widowhood. No fraudls alleged in the probate, or otherwise. Her [82] property remained the same. The devise was of all her property, real, personal and mixed’. This case is not an attempt to revoke a will by evidence of parol declarations, as in Clark v. Morrison, 1 Casey 453; nor is there any subsequent will to be revoked by a republicatio’n of this one. It was well settled under the Act of 1705, that a will might be republished by parol, so as to pass not only real estate which the testator owned at the time of making the will, but also that which he afterwards acquired : Jack v. Shoenberger, 10 Harris 416. This case seems to hold as Campbell v. Jami-son, 8 Barr '498, expressly did, that the Act of 1833 did not prohibit the right to republish a will by parol; yet in Fransen’s Will, 2 Casey 202, the same justice who had ’written the opinion in the former case said the case of Jack v. Shoenberger had been misunderstood, and that the question was not there intended to be decided. A majority of the court appear to have adopted that view and still left the question open; although two of the judges expressly declared that the republication of a will by parol is not prohibited by the Act of 1833. No ease is cited in which the precise question has since been ruled by this court. We think it is not necessary to now determine it in deciding the present case. A Register of Wills is a judicial officer: Morris v. Vanderen, 1 Dall. 66; Act of 15th March, 1832, Pur. Dig. 1253. The admission of a will to probate is a judicial act, which cannot be impeached in a collateral issue: Loy v. Kennedy, 1 W. & S. 396; Holliday v. Ward, 7 Harris 485. Prior to the Act of 1856 it was frequently held that the admission of a will to probate was conclusive evidence of its validity as to personal property, and presumptive as to real estate, unless reversed on appeal. It was held in Kenyon v. Stewart, 8 Wright 189, that the main purpose of this 7th section was to give to the probate of wills, after five years, the same conclusive effect as to real estate, which it had always possessed in England and here, in respect to personal goods. In express 'terms this section declares the probate of a will devising realty shall be conclusive as to such realty, after five years, unless the same be controverted as provided by the Act. In Warfield v. Fox, 3 P. F. Smith 382, it was held that the. probate of á will, since the Act of 1856, devising real estate, is conclusive oh all persons, whether infants, femes covert, non compos mentis or not, unless contested within five years, as directed by the 7th section of the Act. The correctness of this ruling was affirmed and adopted in Folmar’s Appeal, 18 Id. 482. Individual members of this court did think the Act was designed as one of limitation only; but the court has so often [83] beld otherwise that the rule must now be considered as one of property. The probate cannot be collaterally impeached in an action of ejectment brought in the right of the heir at law to recover real estate devised by the will: Wilson v. Gaston, 11 Norris 207. To the same effect is McCort’s Appeal, 2 Out. 38. As the purpose of the Act is “ for the greater certainty of title, and more secure enjoyment of real estate,” the probate affects the title to the land devised, and not merely the remedy for its recovery: Cochran v. Young, 8 Out. 333. It is true the Register’s jurisdiction in the probate of wills is confined to the question whether the paper has been legally executed as the will of the testator. It does not determine his title to the property, nor his power to devise or bequeath the same at the time, nor in the manner indicated by the will. Hence it was held, in Hegarty’s Appeal, 25 P. F. Smith 503, in case of the devise for a religious use, and the testator died within a month after the date of the will, the heirs at law of the testator were not concluded by the Act of 1856 from claiming the property thus devised, although no caveat" nor action at law was entered within five years after the probate of the will. The probate does not give additional power to. do an act which the testator was not. authorized to perform, but makes conclusive such a disposition of his'property as he was authorized to devise, and did devise, according to the forms of law. It follows that the decree of the Register, admitting the will of Jane Boyle to probate, had conclusively passed her title to the-land to the devisee therein named before the present action was instituted, and the learned judge committed no error in entering judgment in favor of the plaintiff below. Judgment affirmed.