In re Cawley's Estate
| Decision Date | 11 July 1894 |
| Docket Number | 89 |
| Citation | 162 Pa. 520,29 A. 701 |
| Parties | Cawley's Estate. Cawley's Appeal |
| Court | Pennsylvania Supreme Court |
Argued May 7, 1894
Appeal, No. 89, July T., 1893, by Horace B. Cawley, from decree of O.C. Union Co., in estate of Mary Cawley, deceased. Reversed.
Rule on Horace B. Cawley to surrender to John Harrison Cawley executor, bank stock. Before McCLURE, P.J.
Respondent filed an answer in which he averred that John Harrison Cawley is not the executor of the last will and testament of the said Mary Cawley, deceased, and that this respondent is the executor of the last will and testament of said decedent.
That the paper purporting to be the last will and testament of said Mary Cawley, deceased, and dated Sept. 5, 1887, and upon which the petition of said John Harrison Cawley for a citation or rule to show cause, etc., is founded, was admitted to probate without notice to this respondent or his counsel, notwithstanding the caveat filed with the register of wills of Union county, and an appeal from the probate of said alleged last will and testament has been taken and is pending in this court undetermined; and, for cause herein shown, respondent prays the court to discharge the rule heretofore granted and to dismiss the citation.
Other facts appear by the opinion of the Supreme Court.
Error assigned was making rule absolute.
The decree appealed from is reversed and the record remitted for further proceedings in accordance with this opinion.
Samuel H. Orwig and J. M. Linn, P. B. Linn with him, for appellant. -- The former case decides that the later instrument must be recognized by the register as decedent's last will subject, of course, to the right of appeal as in any other case. It does not appear to have been the intention of the court below or of the Supreme Court to shut the door to any inquiry as to the validity of the later instrument. To have done that would have been ultra vires.
To make a decree conclusive the record must show that the matter claimed to be concluded was the very matter passed upon: Williams v. Row, 62 Pa. 118; Sheble v. Strong, 128 Pa. 315; Lewis v. Baker, 151 Pa. 529.
On May 22, 1893, Horace B. Cawley appealed from the definitive decree of the orphans' court of May 16, 1893, to the Supreme Court, and on May 27, 1893, the writ of certiorari from the Supreme Court was received and filed in the orphans' court, the present appeal. The effect, if not at once to open and annul such decree or judgment of the inferior tribunal or court, so that the proceedings to be had in the appellate jurisdiction shall begin de novo, was at least to stay all further proceedings in the execution of it: Hess's Ap., 1 Watts, 256; Scott's Intestate Law, 515.
William H. Hackenberg and Andrew A. Leiser, for appellee. -- The former decree was conclusive: Hammer v. Griffith's Admr., 1 Grant, 193; Cromwell v. Sac Co., 94 U.S. 351; Myers v. Coal Co., 126 Pa. 582; De Chambrun v. Campbell, 54 F. 231; Darlington v. Gray, 5 Whart. 486; Souter v. Baymore, 7 Pa. 415; R.R. v. Erie, 27 Pa. 382; Brenner, Trucks & Co. v. Moyer, 98 Pa. 274.
John Harrison Cawley, the executor named in Mary Cawley's will of Sept. 5, 1887, had a right to her bank stock, etc: Wood's Ap., 92 Pa. 379; Fesmire v. Shannon, 143 Pa. 211; Slaymaker v. Bank, 103 Pa. 616; Sibbs v. Saving Fund Soc., 153 Pa. 345; Miller v. Meetch, 8 Pa. 417; Bowman's Ap., 62 Pa. 166; Harberger's Ap., 98 Pa. 29.
The orphans' court had jurisdiction and authority to make the decree in this case: Odd Fellow's Saving Bank's Ap., 123 Pa. 356; Marshall's Estate, 138 Pa. 285; Mulholland's Est., 154 Pa. 491; Brooke's Ap., 102 Pa. 150, Watts's Est., 158 Pa. 13.
Before GREEN, WILLIAMS, McCOLLUM, DEAN and FELL, JJ.
A connected statement of the facts relating to the two wills signed by Mary Cawley will reduce the ground of controversy in this case within very narrow limits. Benjamin and Mary Cawley were brother and sister. Both were unmarried. They had lived together for many years, and in 1886 were both aged and infirm. The house in which they lived belonged to Benjamin and was worth some three or four thousand dollars. Mary owned some bank stock amounting to near the same sum. Their furniture seems to have been owned in about equal parts by each of them. It is apparent that in 1886 both of them realized fully that they had not long to live, and that the survivor of them would need all that both owned in order to his or her comfort during the survivorship. They accordingly sent for counsel and had a will prepared to be executed by both, so that the estate of the first to die should pass to the survivor for life, and disposing of the remainder in a manner that was at the time satisfactory to both. They executed this will in 1886. Benjamin died in August, 1887. The double will was then probated as the will of Benjamin and letters testamentary issued to the executor named therein. In September, 1887, Mary, having apparently changed her mind as to the disposition of her own separate estate, made a new will naming a different remainderman, and executor, from that named in the double will which had been probated as the will of her brother. She died in January, 1888. The executor of the double will thereupon presented it again to the register, and it was admitted to probate as the will of Mary Cawley, and letters testamentary issued to him thereon. After this was done the second or separate will of Mary Cawley was presented to the register by John Harrison Cawley, the executor named in it. He was informed of the probate of the double will, and the issuing of letters testamentary to Horace B. Cawley, and did all that was left for him to do, viz: he took an appeal from the decree of probate upon the double will, alleging that the will so proved was revoked by the later will in his possession.
The answer made by H. B. Cawley was, in substance, that the double will was a contract as well...
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