Miller's Estate , 216 Pa. 247 ( 1907 )

Opinion by

Mr. Justice Mestrezat,

The learned judge of the orphans’ court has stated at length the facts of this case in his opinion and they need not be repeated here. Nor is it necessary to discuss or determine the numerous questions suggested by the appellant’s argument in order to sustain the decree of the orphans’ court.

The will of Robert Miller was presented to the register of Armstrong county for probate on July 28,1904, and thereupon he made the following decree: “ I do hereby admit the foregoing will to probate and order the same to be recorded as such.” This was a judicial determination of the validity of the will and, unappealed from, was conclusive as to the appointment of John W. Miller as executor: 1 Wms. Exrs. 549; 3 Redf. on Wills, *48. An executor is appointed by the testator, and derives his authority to act from the will. The granting of letters testamentary by the register of wills is a pro forma act, to give effect to the will of the testator: Pomeroy’s Appeal, 127 Pa. 492. The appointment of the testator gives to the executor a right to administer of which only his own renunciation can deprive him, or his refusal to appear when cited to prove the will and take out letters : Bowman’s Appeal, 62 Pa. 166. The time when it becomes imperative for an executor named to accept or renounce,- is when he is cited to do so: Ralston’s Estate, 158 Pa. 645. Until the executor named in the will has refused or renounced the trust, the register has no authority to grant letters with the will annexed: Act of March 15, 1832, sec. 18, P. L. 135 ; Stewart’s Purd. 1074, P. L. 19.

When, therefore, on August 5, 1904, the legatees appeared before the register and applied for letters of administration with the will annexed, the latter was confronted with his own record made within a fortnight previously, disclosing the facts that the testator had appointed John W. Miller his executor and that he had neither refused nor renounced the trust and had not been cited to do either. The plain duty imposed upon the register by the statute under these circumstances required him before issuing letters of administration with the will annexed to another person to cite Miller, the executor named in the will, to appear and accept or refuse letters testamentary. The register, however, ignored this provision of the statute and appointed two of the legatees to administer the estate. Before letters of administration had been issued to them, or they had taken the official oath or filed a bond, John W. Miller appeared before the register and requested that letters testamentary be granted to him. Instead of complying with his request, the register proceeded to take testimony and determine Miller’s sanity, which resulted in his refusing letters to Miller and in granting letters of administration to one of the legatees. There is no statutory authority for such a proceeding under the facts of this case and we have not been referred to any decision or text-book authority that recognizes any such power or authority in the register. His duties as well as his authority relating to the probate of wills and granting of letters testamentary or of 'administration are defined and limited by statutory provisions which in all cases he must strictly observe. Having been appointed executor by the will, the register should have given Miller the evidence of his appointment by issuing letters testamentary to him. If the executor became insane or otherwise incapacitated, all parties in interest were fully protected by the authority to vacate the letters testamentary vested in the court by the Acts of March 29, 1832, sec. 26, P. L. 196, and of May 1, 1861, sec. 2, P. L. 680.

On the appeal from the register’s decree, the orphans’ court heard testimony and found, inter alia, the following facts: “ The testimony of the appellant’s witnesses convinces us that John W. Miller has fully recovered his mental faculties, and was competent to act as the executor of Robert Miller when refused the appointment by the register. We conclude from the whole testimony that when Millet applied for letters on September' 29, 1904, he was competent to act as executor. . . . John W. Miller is a man of means; he has given a bond in the sum of $60,000; for upwards of twenty months since his return he has conducted his own and public business with care and success. We believe he can settle the estate of Robert Miller with credit to himself and with safety to the estate.” The hearing on the appeal was de novo, and under section 40 of the Act of March 15, 1832, P. L. 135, the orphans’ court was required to take testimony and make it a part of the proceedings: Wickersham’s Appeal, 75 Pa. 334; Bearmer’s Appeal, 126 Pa. 77. If, therefore, we concede the authority of the register to hear testimony and determine the sanity of John W. Miller and his fitness to act as executor, the action of the register cannot be sustained. The orphans’ court, after a full hearing of the case, finds no such incapacity to exist, and that Miller was competent to act as executor in administering the estate at the time letters were refused him by the register. This court is authorized by the section of the act just referred to “ to affirm, reverse, alter or modify the decree of the orphans’ court” on the testimony submitted to that court, and after an examination of the testimony we have no hesitancy in sustaining the court’s findings of fact and in affirming the decree. We are, therefore, of opinion that the action of the register was irregular and illegal in refusing letters to Miller, on his own application in the first instance, and on the facts as to Miller’s incapacity disclosed by the testimony in the case.

The decree of the orphans’ court is affirmed,