influence practiced upon him by Jennie K. Jacoby and others."

Alexander, Kate B. Bloomer, Joseph N. Alexander, Benjamin F. Alexander, all residing in Washington, D. C., and O. A. On the day the petition was presented, Alexander, petitioner, are all the heirs at the Court made the following decree: law of the decedent, are all the resi- "And now, June 4, 1919, it is ordered duary legatees under the will and first and decreed that a citation be awarded codicil and together with Jennie K. Ja- as prayed for and that service upon such coby, the person named in the second cod-parties as reside outside of the Comicil, are the only persons whose legal in-monwealth be made on such persons perterests are affected by the provisions of sonally wherever found, returnable the the said alleged second codicil." first Monday of July, 1919, and that the

The "petitioner has appealed from the proceedings before the said auditor be decision of the Register of Wills ad-suspended pending this appeal." mitting to probate the said alleged second. An answer by Jennie K. Jacoby was codicil.” duly filed, by which she denied "that

The foregoing allegations are all ad- the said petitioner will be able to prove mitted by the answers filed and are veri-that the said alleged second codicil was fied by the oral proofs.

The petition further alleges that the "petitioner believes and expects to be able to prove that the said alleged second codicil was not signed by the decedent and that the decedent never knew of the

existence of the said paper writing or of the execution of it. He therefore prays

not signed by the decedent, and that the decedent never knew of the existence of the said paper writing or of the execution of it. On the contrary (she avers) that the said second codicil was made by the said Solomon A. Alexander on the

said Solomon A. Alexander in his corres

said

typewriter belonging to and used by the pondence." She further avers "that the the court to award a citation directed to all the parties interested, to wit: Anpaper was made by the said Solomon nie E. Mitchell, Mary V. Irvin, Charles Alexander and signed by him, without E. Alexander, Kate B. Bloomer, Joseph said Solomon A. Alexander with (the) he knowledge or prior consultation by the N. Alexander, Benjamin F. Alexander, Jennie K. Jacoby and George S. Schmidt, respondent and that his signature thereto Esq., the executor of the decedent's will, was not procured by fraud, imposition or commanding them to appear......on a undue influence practiced upon him, the said Solomon A. Alexander, by your reday certain and show cause why the said spondent .... or anybody in her beappeal from the decision of the Register half." of Wills of York County, Pennsylvania, admitting the said paper writing dated July 21, 1916, to probate as a codicil to the last will and testament of Solomon A. Alexander, deceased, should not be sustained and the decision of the said register set aside, and why an issue devisavit vel non should not be awarded di

duly filed his answer, and the other parGeorge S. Schmidt, Esq., executor, ties interested in the estate formally filed their acceptance of the service of the citation, but filed no formal answer to the petition.

in

On September 29th, 1919, a hearing

rected to the Court of Common Pleas of open court was had and from the evi

York County, Pennsylvania, to determine dence there produced, we find, in addition the following material questions of facttained in the petition, the following facts: to the foregoing admitted allegations conin the form thus specifically set forth:

I.

Whether the signature to the said paper writing is the signature of the said

Solomon A. Alexander.

2. Whether the said paper writing was executed by the said Solomon A. Alexander.

3. If the said paper writing was executed by the said Solomon A. Alexander, whether the execution thereof was procured by fraud, imposition or undue

The will of Solomon A. Alexander was signed and sealed by him on the 20th of February, 1912, and then remained in the possession and custody of his attorney, George S. Schmidt, Esq., who was named in said will as the executor thereof.

2. On the 12th day of May, 1913, the testator made and signed the following codicil to his said will:

"I. Solomon A. Alexander, the within

named testator, do hereby make and pub- "Signed, sealed, published and declarlish this codicil to my last will and testa-ed by the said Solomon A. Alexander as ment, which will bears date February 20, and for a codicil to his last will and tes1912, in manner following, to wit: tament in the presence of us who in his "Item: I order and direct that the presence and in the presence of each proceeds of sale of my share of stock in other have at his request subscribed our the Pennsylvania Railroad Company, and names as witnesses thereto. of all other shares of stock and other "E. Philip Stair, securities owned by me at the time of my "A. J. Hershey. decease, referred to in Paragraph Fifth 3. From the time of the execution of of my will and the Seven Hundred Fifty said will and codicil respectively, they Dollars that will be due at my decease were kept by the said George S. Schmidt, from the Pennsylvania Railroad Relief Esq., either in his safe or in the bank-box Association, and all other sums of money, in the York County National Bank of if any, which shall be due me at the time York, Pa., until the said will and attached of my death referred to in Paragraph codicil were presented for probate on the Sixth of my will shall go to and become 12th day of November, 1917. part of my residuary estate.

4. On September 29th, 1917, there was delivered to the said George S. Schmidt, Esq., at his office, by Charles Alexander, a son of the decedent and a son-in-law of the said Jennie K. Jacoby, an unsealed envelope bearing the address, "Mr. George S. Schmidt, Attorney-atLaw, York, Penna." and a key to the decedent's bank box.

"Item. I am not indebted to any person whomsoever, and it is my will and I do order and direct that if any of my seven children (to whom I have given, devised and bequeather my residuary estate in equal shares) shall do anything to mar the harmony and equality of participation in my said residuary estate I have created, or shall in any Court of law or Enclosed in the unsealed envelope was equity dispute, controvert or call in ques- the paper which has been probated by the tion the validity of my said will, or by Register of Wills as a codicil to the testhe presentation of claims against my es-tator's will, and which is the only subject tate shall demand payment for anything of controversy in the present inquiry. A in excess of their respective equal one-copy of the paper is given on page 1 of seventh part of my residuary estate, such this report.

child or children shall be deprived of any 5. Mr. Schmidt sent a communication interest or participation in my estate, and to each of the children of the decedent the share or portion of my residuary es- within a day or two after the date of the tate so given, devised or bequeathed to testator's funeral, enclosing a copy of the such child or children shall go to and be will, the codicil dated May 12th, 1913, and divided among his or her brothers in the paper dated June 21st, 1916, with a equal shares; provided that said brothers full explanation of the time and manner or sisters shall not have disputed, con-of its receipt by him. The communicatroverted or called in question the validity tions also included a notification "that on of my will, or by the presentation of Monday morning, November 12, 1917. I claims against my estate, have demanded shall offer for probate the original will payment of anything in excess of their and codicil, at the same time the letter respective equal one-seventh part of my residuary estate.

"Item. And I do hereby ratify and confirm my said will in all respects other than as herein modified.

having the signature thereto attached of Solomon A. Alexander and dated June 21, 1916. On or before November 12, 1917, it is within the power of anyone interested in the estate to file a caveat against the probate, either of the original will or codicil or of the paper dated June 21, 1916, and it is also within the power "The word 'validity' in line 18 of last of anyone interested in the estate to appreceding page stricken out and the word peal from the action of the Register in harmony' interlined in its stead before admitting to probate the said instrument execution. (Seal) Solomon A. Alexander."

"In Witness Whereof. I have hereunto set my hand and seal this 12th day of May, 1913.

or any of them.'

6. No caveat was filed, and the Reg

ister of Wills probated the said will and interested in the dispute under considcodicil dated May 12th, 1913, and codi- eration, while the evidence which the cil dated June 21, 1916, as the will and

codicils thereto of Solomon A. Alexan-petitioner offered to refute the evidence red, the testator, on November 12th, given for the respondent, were all inter1917, and letters testamentary were ested parties whose opportunities to granted to the said George S. Schmidt, judge of the testator's signature were Esq. shown by their own evidence to be deficient.

7. There was no testimony in the

case from which a reasonable inference We do not deem it necessary to parcould be drawn that the instrument dated June 21, 1916, which is here in dis- ticularly refer to the evidence in detail, pute, was written by and signed by any because no witness was produced who other person than the testator, Solomon saw the execution of the disputed paper, thereefore the testimony was necessarily only the opinion of the witness.

A. Alexander.

8.

From all the evidence in the case, we cannot but find as a fact, that the said paper writing, dated June 21, 1916, One significant circumstance seems to probated as a codicil to the will of testa- stand out on the face of the pleadings tor by the Register of Wills of York which has not been challenged in any way County, Pennsylvania, was executed by

will.

the

Solomon A. Alexander, the decedent, by the petitioner's astute counsel, and in and intended as a codicil of his original view of the fact that he called to the stand Jennie K. Jacoby for examination, 9. There was no evidence that the as if under cross-examination, deserves said paper was prepared or executed by the attention of this court in determinthe said Solomon A. Alexander, as result of any fraud, imposition or undue ing the dispute. It will be observed that influence practiced upon him by Jennie Charles Alexander, the person who deK. Jacoby, or anybody else. livered the disputed codicil to the attorney and executor of testator's will, did not testify. It was said by the respondent's counsel, without denial from the counsel for petitioner, that the said Charles Alexander was a doctor then in

The contest in this case was at the hearing and argument confined to the question of whether or not the testator signed his name to the disputed paper. No attempt was made to show that there was any undue influence or fraud practiced upon the testator at any time.

the services of the United States Government, and consequently his attendace

The direct proof of the genuineness was not obtainable, but the undenied and of the signature of Solomon A. Alexan-unquestioned answer filed by Jennie K. der, which influenced the Register of Jacoby says, that the said codicil "was Wills to probate the will and disputed Alexander) in a found by him (her son-in-law, Charles Alexander) in a private box of the said codicil, was augumented by the evidence Solomon A. Alexander, in his room." of three responsible and experienced officers and employees of the bank The question of forgery of the disthrough which the testator had done puted instrument is the only substantial much signing of responsible documents. dispute raised by the evidence in this These witnesses were, in the estimation case. It has not been proven to the exof this Court, well qualified to testify tent that any jury should be allowed to as experienced and expert witnesses, pass upon it. Therefore, under the defrom a long and frequent familiarity cisions, the application for an issue devwith the handwriting of the testator. isavit vel non can not be granted. Those witnesses, too, were entirely dis

It has been recently decided by our

1

Supreme Court, in Fleming's Estate, Orphans' Court of York County, Pa., 265 Pa. 399, that "A dispute as to the praying for an order commanding Marfacts such as to require the granting of garet Marsteller and J. Y. Cowhick Marsteller, executors of the will of John an issue, under the Act of March 15. Marsteller, late of Harford County, 1832, P. L. 146, must be a substantial Maryland, deceased, to file a supplemendispute and the evidence, considered as tary account charging themselves with a whole, must be such as would sustain two certain judgments. Heard on pleada verdict in favor of the party praying ings and depositions. Petition dismissed, without prejudice, &c.

for the issue."... ..."And where the trial judge, after a careful review of all the testimony, would feel constrained to set aside a verdict, in favor of one side, as contrary to the manifest weight of the evidence, the issue should weight of the evidence, the issue should

be refused."

There has been no question in this case as to the regularity of the proceedings adopted by the petitioner.

Hawkins for petition.
Gemmill for respondent.

August 9, 1920, Ross, J.-The following facts appear by the petition upon which the citation issued, the records of this court, and the evidence through depositions duly taken by petitioner and respondents:

1. John Marsteller died testate on the 10th day of January, 1911, at the And now, August 24, 1920, the peti-County of Harford, State of Maryland, tion is dismissed at the costs of the pe-after a continued residence in said countitioners.

O. C. of

Orphans'

ty of about eleven years.

2. His last will and testament was duly probated before the Register of York Co. Wills of said Harford County, and filed in the Orphans' Court of said Harford County on the 14th day of February, 1911, where it remains of record in the office of the said Register of Wills in Court-Jurisdiction-Execu- Liber H. L. B. No. 14. folio 204.

Marsteller's Estate

tor's disputed claim of personal property.

3. A certified and duly authenticated copy of the said will was filed in the office of the Register of Wills of (this) York County, in the State of Pennsylvania, on the 28th day of February, 1911, and remains therein of record in Will Book "2 X," at page 112, when ancillary letters of administration, cum testamento annexo, were granted by In a contest in the Orphans' Court, be- said Register of Wills to the said Marand John Y. ownership of certain notes, where it appear-garet Mary Marsteller

The orphans' court is without jurisdiction to take testimony and determine in laminie whether personal property, not in the possession of a testator at the time of his decease, and which is claimed by his executor as his own, was or was not the property of

the testator.

tween legatees and an executor over the

ed that a testator, in his lifetime had as- Cowhick Marsteller.

signed certain notes payable to him, made 4. The said administrators c. t. a.

by his executor; that the assignment of the

notes, though unquallified in form, was in did not file, in the Register's office of fact made as collateral security for debts of York County aforesaid, any inventory

the testator; that the assignee obtained

judgment on the notes; that in the course of or appraisement of the decedent's perthe settlement of the estate the testator's sonal property; but on debts mentioned were paid out of the funds

of the estate, and thereupon the judgments

5. January 26, 1913, an account was

were assigned to the executor; and that the filed in th esaid Register's office of York executor contended that the notes mentioned County, Pensylvania, by the said "J. Y. had been given by him without value, for Cowhick Marsteller and Margaret Mary

the accommodation of the testator, it was

HELD: that the orphans' court was without Marsteller, Executors of the last will jurisdiction to hear testimony and determine and Testament of John Marsteller, late of Cardiff, Harford County, Maryland. The account as filed was

the controversy.

Petition of Mary S. Walters, to the deceased."

duly advertised and presented to this 1st, 1902, for the payment of $1,000, Court for confirmation nisi, and was two years after date, with interest. subsequently, on the 7th day of May, IO. On the 15th day of May, 1911, 1913, finally confirmed by this Court. both the notes were brought by a proper

6. After the said final confirmation, representative of the bank to the office this Court appointed an auditor to make of the Prothonotary of York County, distribution of the balance, which the Pennsylvania, and entered on the Judgaccount showed to be $2,168.22, amongst ment Docket, thereby becoming liens on those legally entitled to the same. the real estate of J. Y. Cowhick Mars

7. The said auditor, after due and teller, which he owned in this, York legal advertisement, proceeded to dis- County. charge the duties of his said appoint- II. Subsequently, August 12th, 1913, ment and made report thereof to this the indebtedness of the decedent, John Court. No exceptions having been Marsteller, was paid to the said First made, the said auditor's report was duly National Bank of Delta, through the confiremd, and the said balance on said agency of the Orphans' Court of Haraccount was distributed in accordance ford County, Maryland, which had pritherewith. mary jurisdiction of the estate of the

Court, who had paid the claims which the bank had against the decedent's estate, to the executors, the respondents in the present inquiry.

8. The decedent, John Marsteller, in decedent, and the two confessed judghis lifetime became liable for the pay-ments, which had been entered by the ment of certain notes at the First Na-said First National Bank of Delta, use tional Bank of Delta, York County, plaintiff, against the said John Y. CowPennsylvania, and to further secure the hick Marsteller, were re-assigned to payment of the said evidences of indebt- Margaret Mary Marsteller and John Y. edness the officials of the bank, accord-Cowhick Marsteller, Executors of the ing to the evidence of E. W. Keyser, will of John Marsteller, deceased, and cashier of the bank, "Mr. Marsteller had the assignements so made by the said endorsed for J. Frank Wolf for a loan bank were delivered through the repof $2,000. which had been made some resentatives of the Harford County time before, probably the year before, and he also had endorsd for a note the Bank had discounted for his son, J. Y. C. Marsteller, in the amount of $2,000. The board was not satisfied with Mr. Wolf, so they called Mr. Marsteller in before them and told him they were not satisfied and asked him to secure them by giving a judgment or by the deposit of some collateral to secure the notes on which he appeared as endorser or payor, On December 16th, 1918, the petition. and Mr. Marsteller asked at that time of Mary S. Walters, a daughter of the whether they would accept collateral decedent, was presented, complaining these two notes of his son, J. Y. C. that her legacy had not been paid, and Marsteller. I don't remember, but a the proceeds of the notes had not been short time after Mr. Marsteller brought accounted for. the two notes up to the bank and offered them as collateral to secure his account, and the notes were assigned to the First National Bank and held as collateral to secure the indebtedness to the Bank."

12. On August 21st, 1913, the said executors satisfied the said judgments of record in the Court of Common Pleas of York County, Pennsylvania, but never accounted to the estate for the money represented by said judgments.

The prayer of the petition is "that a citation issue from this Court commanding said executors to file a supplemental account charging themselves with the amounts of said two judgments, with interest accrued thereon".

9. Those two notes as assigned as collateral appear to be promissory notes On the same day, a citation issued. with a warrant of attorney to confess Answers were duly filed by the responjudgment, drawn by J. Y. Cowhick dents, a replication was filed by the peMarsteller to the order of John Mars- titioner, and testimony by depositions teller, one dated April 1st, 1902, for the was filed and read to the Court at the payment of $1,000 one year after date. time of the argument.

without interest, and one dated April 14. The answer filed by the execu