Hohein's Estate , 265 Pa. 14 ( 1919 )

Opinion by

Mr. Justice Stewart,

The appellant’s effort here is to correct and supply by this proceeding a defective record, with a view to change the manner of distribution of the estate of Oscar Hohein, deceased, from that adopted by the orphans’ court, which was as in cases of intestacy, and substitute therefor the directions of a certain instrument which appellant insists is the legally established last will and testament of the said Oscar Hohein. In the case of Union Trust Company v. Peoples Trust Company, 254 Pa. 385, we had occasion to pass on the sufficiency of this •record to sustain the contention here made by the appellant as to the legal significance and effect of the instrument claimed to operate as a last will, and upon a very careful review of the case we were all of one mind that, as the record stood, the orphans’ court having nothing before it but its own record, the decree revoking the probate of the disputed instrument was the equivalent of a decree of intestacy, and distribution of the decedent’s estate was to be in accordance with the intestate law. The orphans’ court record showed, (1), an appeal from the decree admitting to probate the instrument appellant relied on as the will of Oscar Hohein; (2), a precept for an issue in the usual form, with the alleged will attached thereto, directed to the common pleas and filed in. that court June 12, 1903; (3), return of the precept with the alleged will, reciting that on trial of the issue verdict was rendered against the validity of the will; and, (4), decree of January 14, 1904, reciting all these proceedings and vacating the probate of the instrument. The record of the common pleas does show that subsequently, September, 1906, on a rule granted, the judgment on the verdict in that court was opened, and a new trial granted, resulting in a verdict sustaining the validity of the instrument as a will, which instrument during all this period remained with the orphans’ court, to which court it had been returned with the precept for an issue. No judgment had been entered in the common pleas on the second verdict; no certificate had been sent from the common pleas to the orphans’ court as to the result of the second trial; no revocation of the decree of the orphans’ court vacating the probate of the instrument, and no production of the contested instrument at the second trial in the common pleas. It was upon these facts appearing in the case of Union Trust Company v. Peoples Trust Company, supra, that we held that it was not error in the court below to refuse to proceed with the adjudication of the account filed on the part of one claiming to act as trustee under the will. In that case it is said in the opinion filed, p. 392: “But even though the defects indicated may be curable on due application to the proper courts with notice to all parties concerned (as to which we express no opinion at the present time), nevertheless, Tozer v. Jackson, 164 Pa. 373, shows that in proceedings of this character the several steps called for by our decisions and the relevant acts of assembly are in the nature of requirements which may not be treated as ‘mere matters of form,’ and at least to this extent that case is authority at bar.” What is now asked is an order directed to the common pleas requiring that the disputed instrument, which had been there judicially decided to be not a will, should be returned to the orphans’ court, overlooking and disregarding the fact that the disputed instrument had previously been returned to the orphans’ court, — where it still remains, — accompanied by the certificate that judgment had been entered in that court against the validity of the document as a last will. Though this discredited instrument had never been withdrawn from the orphans’ court, nevertheless, a new trial of the issue certified to the common pleas was proceeded with in its absence by the common pleas, with the result that a contrary verdict was reached on the second trial. The significance of this circumstance lies in the fact that upon this second trial the disputed instrument was not in evidence. The jurisdiction of the common pleas extended no further than to try the issue indicated in the precept from the orphans’ court “touching a certain writing hereto annexed, purporting to have been made the-day of-in the year-(or otherwise describing the question), which said writing the said-avers is the last will and testament of said-, and certifying the result of the trial as had in the premises into the office of our register.” Such was the language of the precept. While the competency of the common pleas to set aside the judgment it had previously entered and grant a second trial is not to be questioned, Hambleton v. Yo-cum, 108 Pa. 305, yet it may well be questioned whether a second trial of the issue without the disputed document being produced in evidence was not so wide a departure from the ordinary procedure required by the precept as to render the judgment obtained thereon nugatory. However this may be,.it is unnecessary here to decide the question in view of another feature of the case which is determining without question, and to which we shall now advert.

While several justifying reasons for the action of the court in dismissing the petition of appellant might be given, either in itself sufficient, it will only be necessary to call attention to that most obvious. Manifestly, the orphans’ court is without jurisdictional power to grant the order prayed for, or to enforce one if made. The contention of appellant overlooks the fact that, as between the two courts here involved, neither is superior to the other, but both of like rank and grade, and each distinct and separate with respect to jurisdiction. Neither can confer jurisdiction upon the other sua sponte, but only by legislative warrant, as this case illustrates. The power of the orphans’ court to certify questions d. v. n., to the common pleas, there to be tried upon an issue framed, rests upon statutory provision. “It shall be lawful,” says the statute of March 15,1832, in section 13, regulating appeals from registers of wills to the orphans’ court, “for the register (now orphans’ court), at the request of any person interested, to issue a precept to the common pleas of the respective county, directing an issue to be formed upon the said fact or facts, and also upon such others as may be lawfully objected to the said writing, in the following form, namely”; then follows the form prescribed, which becomes an integral part of the statute, and only as it is observed can the power be exercised by the common pleas in such cases. The jurisdiction of the common pleas begins upon the delivery to it of the precept from the orphans’ court and ends with the certificate of the latter to the orphans’ court certifying the result of the trial had in the premises. In the interim, that is until return is made to the orphans’ court of the result of the trial, the jurisdiction of the common pleas with respect to the proceeding is exclusive. In the present case the common pleas observing the precept, formed an issue according to its provisions, and tried it with the result that judgment was entered against the validity of the will. Subsequently it made return of its proceeding, with the precept and the disputed instrument, to the orphans’ court, and like judgment was thereupon entered in that court, where it remains to this day undisturbed. Nine years thereafter, in 1909, for reasons satisfactory to itself, the common pleas set aside that verdict and again tried the case with the result that a contrary verdict was there reached, and judgment accordingly entered sustaining the disputed instrument as a will, but for some •unexplained reason no return of such proceeding was made to the orphans’ court. Its failure to do so was in disregard of the plain statutory requirement, and that disregard has continued to this day. The orphans’ court’s record so far as it extends is complete, showing as it does judgment entered in the common pleas on the issue certified to it. It can be supplemented only upon additional return from the common pleas, and this it cannot command. The power exists to compel compliance by a judicial tribunal with a statutory duty; but that power is never conferred upon a tribunal of eqpal rank and grade with that complained against as being in default. We need say no more.

The assignments of error are dismissed, and the appeal is quashed at the costs of the appellant.