
    Spangler et ux. against Rambler.
    
      Wednesday, May 20.
    A decree Court refuSng to confirm an theUpai'tmon1' ofiandsj under iaw.Tmfsetpnfceedingsin consequence tion of aXpaper betheíastwHl of the person «h'thé^aiidity of which had not been tried under an byUthedRegh¡d ter’s Court, by this Court, notwithstandmg the heirs at law had moietyofthe land, in an ejectment against the ciaimedThe whole under will, and parol "iven 'that the validity of directíy ia* issue in that
    ON an appeal from the Orphans’ Court of Lebanon county, the case appeared to be this
    
      George Spangler and Barbara his wife, petitioned the Orphans’ Court for a partition of the lands of Michael Rambler¡, deceased, who was supposed to have died intestate, leaving a widow, Eve Rambler, the appellee, but no children. On this petition, the Court awarded an inquest to make parti- . Partition was made, and the inquest returned; upon the widow exhibited a writing purporting to be the last will and testament of the said Michael Rambler, and prayed that the proceedings might be set aside. On the other hand, the petitioners urged the confirmation of the par- . . ’ \ . , 9 , . .... tition, and gave m evidence the record or an action of ejectment) in which the heirs of the said Michael Rambler had recovered an undivided moiety of his real estate against his w'idow, the said Eve Rambler, who was in possession of the whole, and claimed it by virtue of a devise in his will. 7 J evidence was also given, that on the trial of the ejectment, the validity of the pretended will of Michael Rambler was brought into question, and inasmuch as the title of the , * . . , , plaintiffs was inconsistent with the will, the petitioners msisted, that the jury had by their verdict decided, that Michael Rambler died intestate. In consequence of the exhibition of the paper purporting to be the will of Michael Rambler, the Orphans’ Court refused to confirm the partir tion, and set aside the proceedings ; upon which the petitioners appealed to this Court,
    Hopkins, for the appellants,
    contended, that the validity of the will of Michael Rambler having been fairly and fully in' issue,.in the ejectment brought by his heirs, the judgment in that suit while in force avoided the will; and of course the land should have been divided as the estate of an intestate. And to shew the conclusiveness of judgments of courts of competent jurisdiction on a point in issue before them, he cited 3 Bl. Com. 24. Bond v. Gardner.
      
       Simpson v. 
      Marth
      
       Gelston v. Hoyt.
      
       Moses v. MlFerlan.
      
       Thill. Í&.-834. * '
    
    
      Wright and Godwin, for the appellee,
    did not'deny the general position which the authorities cited on the other side went to establish, but insisted, that the rule did not govern this case, because in an ejectment one verdict was not conclusive of the title, and besides if Michael Rambler had died intestate, the plaintiffs would, as his heirs, have been entitled to recover the whole instead of a moiety, for which alone a verdict was found in their favour. The jury, they said, founded their verdict upon the idea, that the widow was entitled to one-half the land in fee simple ; but if this inquisition stand, she will lose the fee simple of the whole. The verdict, therefore, does not support the inquisition. .The proper way to try the validity of a Will'is by an-issue of devisavit vel non directed by the Register’s Court, dnd until that be determined the. Orphans’ Court cannot proceed as if there were an intestacy. They cited 7 Bac. Ab. 381. Brommell v..Kerridge. Act ©f 19th April, 1794.
      
    
    
      
      
         4 JSinn. 281.
    
    
      
      
         1 Johns. Ch. Cas. 91.
    
    
      
       1 Johns. Ch. Cas. 543.
    
    
      
       2 Burr. 1009.
    
    
      
      
         1 Eg. M--406.
    
    
      
      
        Purd. Dig. 287.
    
   The opinion of the Court was delivered by

Tilghman C. J.

When a .writing is. exhibited as a last will and testamentj and a caveat filed against the probate of it, either party may demand a trial by jury; and in such case the Register’s Court directs an issue to determine the validity of the will, to be tried in the Court of Common Pleas. The issue being tried and returned, the Register’s Court are to take the fact as settled. With regard to personal estate, the decision is absolute-;, but the verdict on the issue is. not considered as .conclusive with respe.ct to real estate. The party who is dissatisfied may have the title tried in an ejectment. If an issue had been sent from the Register’s Court, and the writing exhibited as the will of Michael Rambler. been determined to be no will, it would have been the duty of the Register’s Court to have taken for granted, that Rambler died intestate, and the Orphans’ Court ought to have proceeded to a partition of his lands. ■ But in this case, no issue was sent, and therefore the Orphans’ Court were not obliged to consider it as a case of intestacy. The record of the ejectment does not, upon its face, shew any question upon the will of Rambler, and even when explained by parol evi(frnce, fr ;s not free from obscurity, for, if Rambler died intestate, the verdict should have been for the plaintiffs for the ■whole. It is true, that the widow was entitled to one-half of the land, during her life, her husband having left no issue ; but she had no right to enter and take this half, until it was legally assigned to her. Besides, one verdict and judgment in ejectment is not conclusive of the title, and therefore the Orphans’ Court might well refuse to make partition until an issue sent from the Register’s Court was decided. This issue it was the duty of the Register’s Court to order, because without it, the right to the personal estate of Mich. Rambler could not be decided. To make partition of the whole real estate, while the question whether will or no will, remained in a state of uncertainty, might be productive of such inconvenience, that no Court would order it, unless absolutely enjoined by law. I am, therefore, of opinion, that, considering the circumstances of this case, at the time when the inquest of partition was returned, the Orphans’ Court did right in setting aside the proceedings, and their decree should be affirmed.

Decree affirmed.  