Opinion
April 13, 1938.
June 29, 1938.
Appeals — Definitive order — Order sustaining appeal from probate of will — Time of appeal — Exceptions — Absence of stay — Quashing.
1. Where, on appeal from the decision of the register of wills admitting to probate a certain paper as the will of the decedent, the orphans' court entered an order or decree stating that the appeal was sustained and the probate of the will set aside, such decree was definitive, final and appealable.
2. Where the proponent of the will filed a petition for a rehearing, and the court granted a rule to show cause, but made no order staying the proceedings, pending the consideration of the rule, the rule for rehearing did not stay the running of the time within which the appeal had to be taken.
3. Where no formal disposition of the rule was made, but testimony was taken before the court, and, thereafter, proponent filed a paper specifying grounds for exception to the order of the court sustaining the appeal, after the time prescribed by the rules of court and more than three months after such order had been entered, the court below was without power to extend the time for appeal, and it was immaterial that the court treated the proceeding pending before it as if it were on exceptions duly filed to its original order, instead of a rule for a rehearing, and dismissed the exceptions and made the original order absolute; the later order was merely a repetition of what had been done and did not afford proponent a second opportunity for appeal.
Appeal, No. 191, April T., 1938, from order of O.C. Erie Co., May T., 1936, No. 232, in the Estate of Thomas Bobbitt, Sr., deceased.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and RHODES, JJ. Appeal quashed.
Appeal from decision of register of wills.
The facts are stated in the opinion of the Superior Court.
Decree entered sustaining appeal and setting aside probate of will. Rule to show cause why rehearing should not be allowed granted. Exceptions to decree by proponent of will dismissed and original decree made absolute, opinion by WAITE, P.J. Proponent appealed.
Errors assigned, among others, were dismissal of exceptions to order sustaining appeal from decision of register.
William W. Knox, for appellant.
Thomas E. Doyle, with him S.Y. Rossiter, for appellee.
Argued April 13, 1938.
Thomas Bobbitt, Sr., a resident of Erie, Pa., died on June 16, 1936. On June 30, 1936, a paper, dated the ___ day of February, 1936, alleged to be the will of Thomas Bobbitt, Sr., was presented to the register of wills and proved and letters testamentary were issued to B.T. Foley, the executor named.
On July 31, 1936, Thomas Bobbitt, Jr., a son of the decedent, appealed from the decision of the register of wills admitting to probate the said paper, as the last will and testament of said decedent, and granting letters testamentary thereon, and entered security in the sum of $500. He also presented a petition to the orphans' court asking for a citation to determine (1) whether at the time of the execution of said writing the decedent was of sound mind; (2) whether the said writing was procured by undue influence, duress, constraint and/or forgery practiced upon the decedent by his daughter, Mattie Bobbitt, and others; (3) whether said writing is the will of said decedent; which citation was issued as prayed for on August 4, 1936.
Following this, hearings were had in court, and on March 27, 1937 the orphans' court entered the following order or decree: "Now, to wit, March 27, 1937, the appeal is sustained and the probate of the will is set aside. J. ORIN WAITE, President Judge." This was a definitive, final, and appealable decree, (Schwilke's App., 100 Pa. 628; Henry's Est., 290 Pa. 537, 139 A. 198), and on April 1, 1937 the court sealed an exception for the proponents of the will. This sealing of an exception by the judge was, prior to the Act of May 11, 1911, P.L. 279, sec. 6, p. 281, the formal step necessary for a review of the decision on appeal; and, notwithstanding the provision in said act declaring that it is no longer necessary, it is still frequently granted. It is not an exception filed by the litigant, but is allowed by the judge as a short substitute for an "exception . . . . . . written out, signed and sealed by the court" for use in the "bill of exceptions" which was formerly necessary for review on appeal.
By the Act of May 11, 1927, P.L. 972, the appeal had to be taken within three calendar months from the entry of the decree.
On April 12, 1937, Mattie Bobbitt, the present appellant, filed a petition asking for a rehearing, and the same day the court granted a rule to show cause, returnable April 26, 1937, but made no order staying the proceedings, pending the consideration of the rule. Unless such an order is made, (Frazier's Est., 7 Pa. Super. 473, affirmed 188 Pa. 415, 41 A. 528), the rule for rehearing does not stay the running of the time within which the appeal must be taken: Barlott v. Forney, 187 Pa. 301, 303, 41 A. 47; Henry's Est., 290 Pa. 537, 539, 139 A. 198; Real Estate Mtge. Co. v. Duquesne Light Co., 99 Pa. Super. 222, 224; Groff v. City S.F. T. Co., 38 Pa. Super. 567, 568.
No formal disposition of the rule was made, but testimony was taken before the court on June 21, 1937.
On July 27, 1937 the attorneys for the proponent — the present appellant — filed a paper specifying grounds for exception to the order of the court of April 1, 1937, as follows:
"1. Exception is taken to the order of the court: `Now, to wit: March 27, 1937, the appeal is sustained and the probate of the will is set aside,' said order being contrary to the evidence and not prayed for in the pleadings.
"2. Exception is taken to the finding of the court that the will of Thomas Bobbitt, Sr. was improperly executed.
"3. Exception is taken to the finding of the court that there was no authorization to affix the signature of Thomas Bobbitt, Sr., to said will."
This was done without special allowance by the court or notice to the appellee. If it was done for the purpose of complying with section 24 of rule 25 of the Orphans' Court of Erie County, it was too late, for unless specific exceptions are filed to the decree of the court within ten days after the same is entered, the decree automatically becomes final. These specific exceptions were not filed until three months and twenty-six days after the decree was entered, and in the meantime the three months within which an appeal had to be taken from the decree had expired, and the court below was without power, then, to extend it: Wise v. Cambridge Springs Boro, 262 Pa. 139, 104 A. 863.
"Specific exceptions may be filed to any decree with the clerk, and copy thereof with the court within ten (10) days after the same is entered; and in default thereof, the decree shall become final."
The situation was not changed by the fact that the court below, in its opinion filed September 9, 1937, treated the proceeding pending before it as if it were on exceptions duly filed to the order of March 27, 1937, instead of a rule for a rehearing, and dismissed the exceptions and made the order of March 27, 1937 absolute: Estate of Rachel Core, 113 Pa. Super. 388, 174 A. 9. The order of September 9, 1937 "was merely a repetition of what had been done," (Core's Est., supra, p. 390), and did not afford the appellant a second opportunity for appeal: Mayer v. Brimmer, 15 Pa. Super. 451, 454; Core's, Est., supra. The appeal was taken December 7, 1937, and certiorari filed, December 8, 1937. The appellee's motion to quash must prevail.
We feel less than usual hesitancy in quashing the appeal, because our review of the case on the merits leads us to agree with the court below. See Kelly's Est., 306 Pa. 551, 160 A. 454; Hunter's Est., 328 Pa. 484, 196 A. 35; James' Est., 329 Pa. 273, 275, 198 A. 4. In the last named case the Supreme Court affirmed the decree of the Orphans' Court of Philadelphia County, cited by appellant, reported in 30 Pa. D. C. 81, 82.
The appeal is quashed.