Sally B. Davis and the heirs at law of Samuel B. Davis, deceased, v. William H. Rogers, Executor of Samuel B. Davis, deceased

Sally B. Davis and the heirs at law of Samuel B. Davis, deceased, v. William H. Rogers, Executor of Samuel B. Davis, deceased. After trial, and the verdict of a jury against the validity of a will on an issue of devisamt vel non, ordered by the Eegister, he cannot order a second issue upon it. An appeal from the order of the Eegister directing an issue of devisavit vel non to be tried before a jury at the bar of the Court, is a supersedeas of all further proceedings thereon, until the appeal is determined. On appeal from the order of the Eegister awarding a second issue of devisavit vel non, after trial and the verdict of a jury against the validity of the will on a former issue ordered by Mm, the Court will not enter a final decree against the will, or such final decree as the Eegister should have made under the circumstances; but will reverse the order and remand the case to be further proceeded in by him. There were two cases on the record of the Court between these parties. The former was a second issue of devisamt vel non, ordered and sent up by the Register of Wills for Hew Castle County, to try the validity of a paper writing purporting to be the last will and testament of Samuel B. Davis, deceased (a previous issue of the same kind, on the same paper writing, having been awarded and sent up by him and tried at the preceding term of the Court, and which resulted in a verdict against the validity of it as' the last will and testament of the deceased); - and the latter was an appeal from the order and decree of the register awarding the second issue. William H. Rogers moved the Court for leave to strike his name from the record of both cases. He appeared, he said, before the Court not as counsel for any one, but on his own behalf as an individual, and respectfully submitted this motion on the ground' that he had been improperly named as one of the parties in the cases. The letters testamentary heretofore granted to him on what purported to be the last will and testament of the deceased had been revoked, and an administrator pendente lite had been appointed, and he now utterly disclaimed having any connection or anything further to do with the cases, and demanded as a matter of right that his name should he stricken from them. He was happy to say that, in his own judgment, and in the judgment of his friends, whose opinion he had taken on the subject, he had already discharged his duty to the deceased, and had done all that it was incumbent upon him to do in the relation in which he then stood to him, and in connection with the paper purporting to be his will, and it was neither his wish nor his duty, either as a party or as counsel, to have anything further to do with the matter. He, did not know what view the Court might take of his application, but he would not try them, and he should respectfully protest against the Court’s proceeding to hear and try the cases in his name as one of the parties to the record; for having been removed from the executorship, the cases were now before the Court precisely as if they had abated by his natural death, since the issue was ordered and the appeal therefrom was granted. He hoped, however, the Court would concur in the propriety of his application, under the circumstances, and grant the motion; but if it should be of a contrary opinion, and differ with him as to his right to abandon and withdraw from the eases, he would then say, without intending the slightest disrespect to the Court, it must proceed to try them without the sanction- of his presence. And without waiting for any reply from the counsel on the other side, he left the court room. D. M. Bates, for the appellants, now asked' the Court to render a final decree in the latter case, on the appeal in favor of the appellants. On the certified return from this Court to the register of the verdict of the jury rendered at the last term, on the issue of devisavit vel non against the validity of the will of Samuel B. Bavis, he called upon that officer to enter a final decree against the will, and to revoke the letters testamentary granted thereon to the executor named in the paper, when the proceeding was arrested by the presentation of a petition to the register for another issue of devisavit vel non on the same paper, on which the register made an order awarding a second issue, and from that order this appeal was taken. The respon‘dent in that appeal from the order asked and obtained by him, it seems now refuses to appear and respond to it in 1 this Court, on the ground that he has been removed from the executorship and is Ho longer a party to the second issue ordered upon his petition and sent up here in his name, or to the appeal which we have taken to this Court from that order made in a proceeding voluntarily instituted by him, in his name, and as the only party on that side to it. But being the party respondent, and the only party respondent to an appeal thus taken from an order or decree in his favor, asked for and obtained by him before the register, he cannot be allowed to defeat it, and deprive the other parties' of the benefit of their appeal guaranteed to. them in such cases by the Constitution in this manner, by omitting, or refusing to appear and answer to it. For, if this could be tolerated, then would the right, as well as the benefit of appeal in effect be entirely- dependent on, the will and pleasure of the respondent, and he might defeat the prosecution of it by such a step as this whenever it suited his purpose to stay all further proceedings, in this manner, on an order or decree below rendered in his own favor. The appellants were therefore entitled, on the. refusal of the respondent to appear and answer to it, to a final decree on the appeal in this Court in their favor. We have no statutory provision in appeals of this nature to' enforce the appearance and answer, or plea of the respondent, or anything more than the general provision of the Constitution, which gives the appeal simply in such cases; and the Court must therefore dispose of it in such manner as may seem legal, just and proper under the circumstances. An appeal' differs from a writ of error, which does not remove the case entirely from the court below, but simply the proceedings of the courjt below in the case, for the correction of errors, which is afterwards remanded to the court’below from whence it came. But an appeal has the effect to rempve the case, with all its rights and incidents, to the court above, and it is then to be regarded and prosecuted in all respects as if the case had been instituted originally in the appellate court, and the appellate tribunal will consequently proceed with it to final judgment, just as if the case had been originally commenced in that court. Reed v. Vanderheyden, 5 Cow. 719; 1 Hopk. Chanc. Rep. 412; Barker v. Spicer, 4 Harr. 348; Van Wick v. Ally, 1 Hopk. Chanc. Rep. 552. A decree on an appeal from an interlocutory order may be final in the case, ac- ' cording to the nature and incidents of the interlocutory order, and it had been expressly ruled that on appeal from such an order, awarding an issue, the court of appeal will proceed to hear and dispose of the case finally, on all the facts and merits.involved in it. 3 Danl. Chanc. Prac. 363; 1 Johns. Ca. 436; 4 Brown’s Parl. Ca. 144; Ibid. 181; Ibid. 660. In the last case cited, which was more analogous to the case before the Court, and which was an appeal from an order awarding an issue, and which had proceeded no further in the court helow, the House of Lords sustained the appeal and directed a final decree to be entered in the case against the order for the issue, and that the alternative proceedings be confirmed. From this case it would therefore appear that where there was sufficient matter apparent on the record to sustain it, the decree on the appeal will be final in the case. 4 Bro. Parl. Ca. 144, 708; 5 Bro. Parl. Ca. 429, 446; 3 Munf. Rep. 115 ; 2 Call’s Rep. 495; 2 Henn. & Munf. Rep. 108; 3 Wash. Rep. 135. Having thus shown that this Court, sitting as an appellate court, has the power to enter a final decree in the case, the next question to be considered was, as the respondent had stated personally to the Court, without appearing, that he declined to appear and defend the appeal, what kind of a. decree or final disposition was to be made of the case by this tribunal ? The issue of devisavit vel non ordered from below, and now on the record here, could not be tried, if for no other reason, because there was no party to maintain the affirmative of it, and no one interested to maintain it, and the Court, of course, could not appoint any one to try it. He therefore apprehended that the Court, under such circumstances, could do nothing more nor less than to direct the order below awarding the second issue to be vacated and stricken from the record, and to proceed to make a final decree in the case as it stood before the register and he should have made in the case on the return of the verdict of the jury, as certified from this Court on the trial of the first issue, against the validity of the will, and revoking the letters testamentary granted upon it. All the parties interested, whether as the widow and heirs or as the devisees and legatees under the will, were before the court below; as parties, and were now before this Court as appellants. The respondent on the record was the only other party interested under the will, as executor and trustee, and he had peremptorily but respectfully refused to appear and defend it. 'He could see no other course, therefore, for this Court to adopt under the circumstances. [MAJORITY — The Court] The Court considering the appeal from the order of the register, awarding the second issue of devisavit vel non on the will, a supersedeas of that order, and that all further proceedings thereon should have been stayed and susr pended until the determination of the appeal, and that such order should not have been made, afterwards directed' the following decree to be entered on the appeal: And .now, to wit, this tenth day of November, in the year of our Lord one thousand eight hundred and fifty-live, this appeal coming on to be he<ird before the Court, and the said William H. Rogers, named as executor, as aforesaid^ the respondent, failing to appear to answer -the appeal, after being duly summoned to do so, the Court reverse the said order of the register directing the said issue to be tried before a jury, at the bar of this Court; and it is ordered by the Court that the record and accompanying papers be remanded to the register, that the case may be further proceeded in, &e.