Appeal, No. 503, Jan. T., 1961, from decree of Court of Common Pleas of Potter County, Sept. T., 1961, No. 1, in equity, in case of Frederick Cole v. Walter P. Wells. Decree affirmed; reargument refused February 5, 1962.
Miles Warner, with him Robert J. Flint, for appellant.
S. Dale Furst, Jr., with him James S. Berger, Elton F. Carlson, and Furst, McCormick, Muir, Lynn & Reeder, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal from a decree of the Court of Common Pleas of Potter County which dismissed a complaint in equity seeking discovery from the executor of a decedent's estate "of all facts and circumstances having to do with the execution of the instrument [decedent's last will] offered for probate".
Charles Cole, 84 years of age, died on February 25, 1961 in Coudersport survived by his wife, Edith P. Cole, to whom he had been married in 1958, and two nephews, Frederick Cole (the appellant) and his brother, John Cole. It is estimated that the value of decedent's estate is $9,000,000. On March 4, 1961, Walter P. Wells, [appellee],*fn1 as executor under the alleged will, offered for probate to the Register of Wills of Potter County a four page instrument bearing date "this*fn2 day of October, 1958", the backer of which instrument bore the names "Hornburg, Andrews & Diggs", and had thereon the date August 13, 1953. The signature indicated the will had been signed during decedent's last illness. Under this will, inter alia, decedent's two nephews are each given a pecuniary legacy of $10,000 and a trust of the entire residuary estate created whereunder the widow receives a life interest and, upon the widow's death, the entire residuary estate is to be devoted to the erection and endowment of a memorial hospital. This instrument was probated as decedent's last will and letters testamentary*fn3 were issued to appellee. No appeal from this probate has been taken.
On May 17, 1961, appellant*fn4 caused a summons in equity to be issued in the Court of Common Pleas of Potter County. Six weeks later, having been ruled to do so by appellee, appellant filed a complaint in equity.*fn5 To this complaint appellee filed preliminary objections raising the following questions: (1) that there is no possible action at law or equity which forms the basis for a complaint in the form filed so that the complaint does not conform to any law or rule of court; (2) that the complaint is so permeated with purplusage and scandalous and impertinent matter that such surplusage and matter cannot be separated from the matter which is pertinent and relevant; (3) in the absence of an allegation of any cause of action in support of which discovery is sought, discovery will not lie; (4) in the absence of an allegation of any infringement of rights by appellee, discovery - a collateral right to assist in the determination of other rights, - will not lie. The court below entered a decree dismissing the complaint and from that decree this appeal has been taken. The rationale of the opinion of the court below is that appellant is trying to use discovery in the Common Pleas Court to garner information for a will contest and that appellant has "ample remedies in the Orphans' Court should its jurisdiction be properly invoked".
The complaint consists of 27 paragraphs and attached to the complaint are 7 exhibits, 5 of which are items of correspondence between appellant, appellee or appellee's ...