
    [Philadelphia,
    January 27, 1828.]
    OTTINGER against OTTINGER.
    IN ERROR.
    A deposition, taken before the register of wills, in support of an alleged will, in consequence of a caveat, by one of the persons interested in preventing the probate,' is evidence on the issue of devisavit vet non, ordered by the Register’s Court on an appeal afterwards entered by another person interested, not a party to the original proceeding.
    Error to the Court of Common Pleas-of Philadelphia county, where judgment was rendered upon a verdict in favour of the defendant below, upon an issue of devisavit vel won,'directed by the Register’s Court, to try whether a paper writing, purporting to be the last will of Isaiah Ottinger, deceased, was his last will, and testament. The verdict was found in favour of the will. John Ottinger, the plaintiff in error,' was plaintiff below; and William Ottinger, defendant below and defendant in error.
    The plaintiff objected to the admission in evidence of the deposition of Cornelius Skillinger, taken before the register on the 8th of December, 1804, but the court admitted it, and the plaintiff excepted.
    
      This deposition was taken in consequence of a caveat agáinst the probate of the will entered by Hannah Ottinger, widow of the deceased, on the 6th of December, 1S04, in pursuance of an order by the register, made at the instance of Abraham Kline and wife, and others, the devisees and legatees named in the said paper writing, to be read in evidence in case of the sickness, absence, or other inability of the witness. The register admitted the will to probate; and the present plaintiff, the son of Hannah Ottinger, being then a minor, entered an appeal, on arriving at the age of twenty one, to the Register’s Court, which directed the issue.
    
      Chew, for the plaintiff in error,
    contended that the deposition is evidence only between the same parties; and that the plaintiff in error was not a party. 2 Binn. 511, 513. 2 Yeates, 231, 317. Phillips, 199. 1 Cox, 223. 3 Burr. 1244. 9 Mod. 90. 12 Serg. & Bawle, 284. 4 Burn’s Eccl. Law, 173, 174, (251, another edition.) 3 Wash. 580.
    
      Kittera, contra.
    
    The deposition would have been evidence even the next year, from the very nature of the proceedings. It is part of the record. 1 Yeates, 87. 4 Yeates, 414. Starkie, 1421. 1 Ch. Ca. 73. Gilb. Ev. 60. 1 Burr. 146. 1 Binn. 263.
    
      J. R. Ingersoll, in reply.
    
    Skillinger's deposition was no part of the probate, nor is it annexed to it. 3 Binn. 506. 3 Dall. 327. Peake’s Ev. 96. Depositions in bankruptcy are made evidence by act of parliament. 6 Crunch, 206. 1 Atk. 450. 1 Mad. 155. 1 Vern. 184. 1 P. Wms. 116. 1 Pern. 354, 441. 3 Atk. 387. 1 Salk. 278.
   The opinion of the court was delivered by '

Gibson, C. J.

On a caveat against admitting a will to probate, the proceedings are not strictly between parties, because the decree is conclusive on all the world. But, even were this not so, yet the plaintiff has, by entering an appeal, acknowledged himself to have stood in the relation of a party from the beginning;-, for it is difficult to conceive of the allowance of an appeal on any other condition. The caveat entered by the mother, inured, to the benefit of herself and every other party in interest, and the plaintiff would have been concluded by the decision of it, had not an appeal, on coming of age, been provided for him by the legislature. He was, therefore, either not a stranger to the proceedings, or else estopped from alleging it; and he, consequently, stands on no better ground than his mother would have done as a party to the same issue. This removes the only appearance of difficulty which is found in any part of the'case. Even proof by a b’y-stander of what' a deceased witness has testified in a cause between the same parties, is competent. But by the act of the 13th of April, 1791, the evidence of witnesses in the Register’s Court is to be taken in writing and made part of the proceedings. And wherefore ? Doubtless that it may be perpetuated. The legislature Certainly did not intend to give an appeal with the benefit of excluding the testimony of every witness who should die in the meantime. We have, then, the common case of,a,deposition regularly taken in the cause, and admitted in evidence after the happening of the contingency fqr which it was designed to provide: in other words, the very case which the legislature had in view.

Judgment affirmed.  