Miller v. Meetch

• Decision Date: 07 July 1848
• Parties: MILLER <I>v.</I> MEETCH et al.
• Court: Pennsylvania Supreme Court

8 Pa. 417

MILLER v. MEETCH et al.

Supreme Court of Pennsylvania.

July 7, 1848.

IN error from the Common Pleas of Dauphin county.

McCormick, for plaintiff in error.

Fisher, contrà.

July 7. BELL, J.

Was the power to sell and convey the premises in dispute conferred by the will of John Meetch the elder, duly executed by John Meetch the younger, as acting executor? If so, the plaintiffs have no case.

As by the will in question, the power to sell was given to the executors virtute officii, and partly for the payment of debts, there is no doubt that even before the act of 12th March, 1800, it might have been executed by a surviving or acting executor: Lessee of Zebach v. Smitz, 3 Binn. 69; Heron v. Hoffner, 3 R. 397. But by this statute, the right to execute is expressly conferred on the surviving or acting executor, in all cases where his fellows have died, or refused or renounced the execution of the trust. This beneficial provision is repeated by the act of 24th February, 1834. The inquiry is thus narrowed to the single point, whether at the time of the sale and conveyance to Isaac Smith, Meetch the grantor was the surviving and acting executor of the will of Meetch the testator? Trump, who was named as executor, died in the lifetime of the testator. John Davis and John Meetch, also named as executors, survived him. On the 20th of June, 1829, the will was proved before the register of the proper county, by the oath of one of the subscribing witnesses, and evidence of the handwriting of the other. Something was said on the argument about the insufficiency of this probate, inasmuch as the subscribing witness, whose signature was proved, was not shown to have been, at the time, dead or without the jurisdiction of the register.

But taking probate of wills is a judicial act which cannot be impeached collaterally. Until duly reversed, the presumption is that everything was done correctly: Loy v. Kennedy, 1 W. & S. 396. Besides, for the purposes of the present question, it is of no consequence, as will be presently seen, that the will was irregularly proved, before the register, or whether it was proved at all.

On the 9th of February, 1830, Davis, by writing filed in the register's office, renounced the executorship, and declined to take upon himself the execution of the trusts of the will. A renunciation, to be effective as such, must be by writing filed with the ordinary or, here, in the register's office, or be evidenced by record made thereof. But no particular form of record is necessary; and it may be by a letter addressed to the officer by the executor, or some one for him, duly authorized: Toll. on Executors, 42; Heron v. Hoffner, supra; Commonwealth v. Meteer, 16 S. & R. 416. It is not to be doubted, that in the present instance, the renunciation filed with the register was sufficiently expressed in point of form, and therefore operated to discharge Davis from the executorship, unless something had, previously, occurred which prevented it from having this legal effect. The plaintiffs below contend that it sufficiently appears Davis was duly sworn in as executor, under the will; and that, after this, he was not at liberty voluntarily to renounce the office he had thus undertaken. An executor has his election, whether he will accept or refuse the executorship; and such election may be determined by acts which amount to an administration. For it is said that if he once administer, it is considered that he has already accepted of the executorship, and the ordinary may compel him to prove the will. In some of the older cases, this doctrine was carried so far as to hold, that if he once administer, he is not only compelled to undertake the office if the ordinary desire it, but that the ordinary had no jurisdiction to accept his refusal, and grant administration cum testamento annexo to another. But the modern rule is, that the ordinary may accept the executor's refusal, notwithstanding he has administered: 1 Williams on Executors, 148-9, and the cases there collected. So, too, in a case decided 31 Car. 2, the executor named in the will had taken the usual oath, and then refused; and it was adjudged by the King's Bench, that having taken the oath, he could not be permitted afterwards to refuse, and the Ecclesiastical Court had no other authority: Anon. 1 Ventris, 335. But now, even after probate, if the executor has not administered, the court will permit him to renounce upon his own application, though he has taken the usual oath and given an appearance as executor: 1 Williams on Executors, 152. In Jackson v. Whitehead, 3 Phillim. 577, a renunciation was permitted, in order that the executor might be examined as a witness. In delivering judgment, Sir John Nichol doubted the authority of the case in Ventris; and said that, at most, it only decided that a voluntary renunciation is not so binding as to exclude an executor from the duties of the executorship.

Now there is no pretence here that Davis ever intermeddled with the goods of the testator by administration of any portion of them; and if it were admitted that he was duly sworn as executor, and this appeared of record, I do not see why the register, standing in the place of the spiritual court, might not afterwards accept his voluntary renunciation, and thus release him from the executorship. I agree, that if he had received and administered any of the assets of the estate of his testator, the power to relieve him from the burden of the trust could only be exercised by the Orphans' Court of the proper county, in pursuance of the third section of the then existing act of 1797. Be this, however, as it may, there is, in truth, no sufficient evidence that Davis ever took the usual oath of an executor, or in any way consented to accept the office up to the period of his renunciation filed of record. There is nothing in the case pointing to the existence of such a fact but the following endorsement on the original will, said to be in the handwriting of the then register of Dauphin county: "June 20, 1829, John Davis, Esq., sworn as executor, and according to an act of Assembly, entitled `An act relating to collateral inheritance.' Before me, John Cameron, register." No copy of the oath is to be found in the proper office, nor is there any record of it extant. The register of wills is a judicial officer having an official seal, and required by usage as well as by the tenor of the statutes regulating his proceedings, in this state, to keep a record of his acts and doings. These are public records, importing verity, and as such receivable in evidence before other tribunals. Upon probate of a will being made, the original is to remain of file in his office, and a copy thereof, with the certificate of probate and letters testamentary thereon, under the seal of his office, is granted to the persons entitled to receive them. After probate and the administration of the oath to the executor, these letters are always issued, and a record of the facts made. Regularly, there should be the registration of a formal decree of the mode of proof, and that it was deemed sufficient; though the omission of this will not vitiate the whole proceeding. In Logan v. Watts, 5 S. & R. 212, it was held that a register of wills being a judge, his certificate, under the seal of his office, that a will of lands had been duly proved and approved before him, and a copy thereof annexed, is primâ facie evidence of such will, though a copy of the probate is not set out in the certificate. In Loy v. Kennedy, supra, the same rule is recognised, in deference to the looseness of our practice. There the certificate of the register, that he had admitted a will to probate and granted letters testamentary, which accompanied the certificate, was received as evidence, though the certificate showed the proof was, in itself, defective. But I think we have never gone beyond these cases. In our case, it does not appear from the record, or by any authenticated certificate of the register, that letters testamentary were ever issued to Davis; nor, as...