William L. Huganir, Gerber, Davenport & Wilenzik, Norristown, for appellants.
Israel Packel, Atty. Gen., James W. Sutton, Jr., Asst. Atty. Gen., Harrisburg, for Com. of Pa.
Paul Maloney, Philadelphia, for Glenmede Trust Co.
David M. Jordan, Norristown, for appellee Raymond Pearlstine, Trustee ad litem, Wisler, Pearlstine, Talone, Craig & Garrity, Norristown, of counsel.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Pomeroy, J., filed a dissenting opinion.
These appeals contest decrees of the Orphans' Court Division of the Montgomery County Court of Common Pleas which in effect direct the register of wills to accept a purported will of Rebecca Shelly for probate. Appellants contend that the orphans' court erred in allowing the appeal from the decree of the register of wills because no bond was timely filed as required by statute.*fn1 We agree and reverse the decree of the orphans' court.*fn2
Rebecca Roberts Shelly died on February 16, 1971, at the age of eighty-three leaving an estate valued at approximately $900,000. Shortly after her death a will dated November 12, 1965, was offered for probate. Two caveats were filed to the probate of that will, and the matter was certified to the orphans' court. Prior to a hearing in the orphans' court a later will, dated 1969, was discovered and offered for probate.*fn3 This 1969 writing was rejected by the register of wills because of apparent alterations. Shortly thereafter the heirs at law petitioned the orphans' court, pursuant to section 208(a)
of the Register of Wills Act of 1951,*fn4 to reduce the time to appeal the register's decree to six months instead of the usual two years. All other parties involved in this action were given notice of the petition to shorten time for appeal, but none responded. Consequently the orphans' court entered a decree shortening the period to six months.
The orphans' court appointed a trustee ad litem for the Roberts Shelly Foundation, a beneficiary under the 1969 will. Appeals from the action of the register were filed by the trustee ad litem and by Glenmede Trust Company, an executor and trustee under the will. These petitions for appeal*fn5 were filed within the six month period. However, no appeal bonds were filed. The heirs repeatedly argued in the orphans' court that the failure to file bonds was fatal to the appeals. The orphans' court rejected these contentions, entertained the appeals, and directed the register to admit the will to probate. This appeal ensued.
Section 208(b) of the Register of Wills Act of 1951*fn6 provided:
"Bond. Anyone appealing from a decree of the register shall, within ten days after filing his appeal, file with the register his bond in the name of the Commonwealth with sufficient surety in such amount, not less than five hundred dollars or more than five thousand dollars, as the register ...