Miller's Estate , 159 Pa. 575 ( 1894 )

Opinion by

Mr. Justice Williams,

There are three years allowed within which an appeal may be taken from a decree of the orphans’ court. The computation should be made from the date of the decree, and not from a refusal by the court to open it. This appeal was taken within the time allowed and the motion to quash must for that reason be dismissed. The other questions raised have been necessarily considered in the appeal of Alexander H. Miller in which an opinion is filed herewith. [The preceding case.] It ■is unnecessary to do more than refer to that case for the conclusions that control this. The court below did right in dismissing the petition in this case, but the true reason on which such decree should have rested was the want of proper parties. The court was in no condition to pass upon the merits when but two of the six children of the testator were before it. In order that there may be no chance for misapprehension as to the effect of the dismissal of the appellant’s petition, the decree is amended so as to read “ The petition of H. J. Miller for leave to appeal from the decree of probate made by the register, of a paper writing alleged to be the last will and testament of Alexander H. Miller, deceased, is dismissed for want of proper parties, without prejudice.” The decree thus amended is now affirmed. As the decree dismissing the appeal of A. H. Miller is reversed, there remains in the court below one appeal only. If not already brought in, all the parties in interest, whether as heirs at law or legatees, should be served with a citation so that they may become, or decline to become, parties to the pending appeal.