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MANGOLD v. NEUMAN (11/10/52)

November 10, 1952

MANGOLD, APPELLANT,
v.
NEUMAN



Appeal, No. 196, Jan. T., 1952, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1951, No. 3714, in case of Elva P. Mangold and Jonathan C. Hammer et al., Minors, by their guardian, Lemuel B. Schofield, v. Simon S. Neuman et ux. Judgment affirmed.

COUNSEL

George Papkin and Morris Wolf, with them Lemuel B. Schofield and Wolf, Block, Schorr and Solis-Cohen, for appellants.

Earl Jay Gratz, for appellees.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 371 Pa. Page 496]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The appeal is from a judgment of a court of common pleas sustaining preliminary objections to a complaint in trespass.

[ 371 Pa. Page 497]

By his will Harry Publicker, decedent, made testamentary provisions for his daughter Helen, his daughter Elva and his son Robert, and for their respective issue. Bequests to his daughter Elva Pa. Mangold and her issue, plaintiffs, were revoked by codicil. The will and the codicils were probated and no appeal has been taken from the register's decree of probate. The plaintiffs, being thus disinherited, instituted an action in trespass against testator's other daughter, Helen P. Neuman, and her husband, Simon S. Neuman, defendants. Plaintiffs allege in their complaint that defendants conspired to cause decedent to disinherit plaintiffs; that the husband-defendant occupied a confidential relation toward decedent; that through actions amounting to fraud and undue influence defendants were able to secure decedent's execution of the codicils at a time when decedent, because of illness, was in a weakened physical and mental condition, indicating that decedent did not possess testamentary capacity. Plaintiffs aver that they were damaged "to the extent of the value of [their interest in decedent's estate]". It is stated that such value "cannot be computed exactly at this time" but alleged that such loss is in excess of $7,500,000. Preliminary objections were filed by defendants to the complaint, which were sustained.

The gravamen of the complaint is the allegation that the wrongful action of defendants induced and caused the execution of an invalid codicil which caused the disinheritance of plaintiffs to their damage. The damage claimed is the value of the inheritance under the concededly valid will. There is little which we can profitably add to the well considered opinion of President Judge MACNEILLE in the court below. He encompassed the problem when he said: "Under long established principles, it is well settled that the only procedure for attacking the validity of a will or codicil is

[ 371 Pa. Page 498]

    by an appeal from probate. If an action is in effect a contest of a will, the proper tribunal for such contest is the orphans' court of the county in which the will was probated. A court of common pleas has no jurisdiction to entertain an action the effect of which is to collaterally attack a will or codicil."

The probate of the will and codicils by the Register of Wills constituted a judicial decree. In Szmahl's Estate, 335 Pa. 89, 6 A.2d 267, Mr. Justice HORACE STERN said, p. 92: "'... a register is a judge, and the admission of a will to probate is a judicial ...


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