Miller's Estate

Citations

• 159 Pa. 562
• 28 A. 441
• 1894 Pa. LEXIS 897

Syllabus

<p>Will — Issue devisavit vel non — Orphans' court — Jurisdiction—Practice— Estoppel— Witness — Parties.</p> <p>Where the heirs at law of a decedent are not voluntarily parties to an issue devisavit vel non, or have not been brought in by citation, the orphans’ court has no jurisdiction to settle finally the validity of the will against such of the heirs as are not parties to the proceedings.</p> <p>In such a case the fact that one of the heirs who was not a party appeared as a witness, does not estop him from subsequently instituting proceedings on his own behalf to set aside the will.</p> <p>Will — Election to take under will — Estoppel.</p> <p>An election in pais to take under a will should be intelligently made, and should be unambiguous and positive in its character to amount to an estoppel.</p> <p>Doubted whether the receipt of money by a legatee claiming to be entitled to receive it, and much more as an heir at law, can he treated as an election to affirm the will.</p> <p>Issue devisavit vel non — Repayment of legacy by legatee — Estoppel.</p> <p>A legatee who has received his legacy, and afterwards concludes to contest the will, may return the legacy to the executors and so relieve himself from the operation of the general rule that forbids him to take under the will that which testator gave him, and at the same time deny its validity as to others.</p>