the paper dated the 9th day of June, 1913, and refusing to admit to probate the paper dated the 25th day of March, 1899, H. Albert Lauffer appealed to the orphans' court of Westmoreland county and a hearing, after being continued from time to time by the parties, finally was had on the 4th day of January, 1915, on the appeal from the decree of the register admitting to probate the alleged will dated the 9th day of June, 1913. While there are two appeals from the decrees of the register, the appeal from the decree refusing to admit to probate the paper dated the 25th day of March, 1899, and its codicils, is not now before us, as all the parties interested in that paper writing have not been made parties to this proceeding. If the present contest is sustained by the appellant, that paper writing hereafter will come forward, if contested, and will be adjudicated.

After the testimony had been taken and after the same had been transcribed into long hand, an argument was heard on the 15th day of March, 1915, at which time it was admitted by counsel for the contestants and counsel for the respondents that there were disputed questions of fact as to whether Catherine Ann Byerly was in Greensburg at the place and on the date the will probated is alleged to have been executed, whether the person who executed that will was Catherine Ann Byerly, and whether it is her true last will and testament; but it most strenuously was contended on the part of the respondents that, the appeal being only to the orphans' court without a demand for an issue to the common pleas, the orphans' court is without authority to frame an issue and send a precept to the common pleas and must determine the facts in dispute from the evidence without the aid of a jury. In other words, that the orphans' court of its own motion, cannot award an issue and direct a precept to the common pleas when none has been requested. This contention has given us considerable trouble and has put us to no little investigation to determine its merits. The Act of March 15th, 1832, P. L. 135, section 13, provides, as follows: "Wherever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof any matter of fact touching the validity of such writing, it shall be lawful for the register, at the

request of any person interested, to issue a precept to the court of common pleas of the respective county, directing an issue to be formed upon the said fact or facts, and also upon such others as may be lawfully objected to the said writing, We are familiar with no other legislation, now in force, which authorizes the register of wills to frame an issue and direct a precept to the common pleas. The register being a creation of the statute law, his jurisdiction must come from some legislative enactment. He has no inherent right to issue a precept to the common pleas, which flows from our common law. It is clear to us, after an examination of this subject, that he is not given authority by any other act of assembly to issue a precept to the common pleas where a caveat is filed. This act gives him that authority only "at the request of any party interested," and then, at his discretion. "Neither the register nor register's court is bound to award an issue in every case touching the validity and due execution of a will when it is demanded." (Cozens' Will, 61 Pa. 196.) The register, under this act of assembly, virtually sits as a vice-judge when hearing a cause on a demand for an issue to the common pleas. He hears the testimony of the contestants and the proponents and decides whether to admit the will to probate or send a precept to the common pleas. In either event, under the Act of February 28th, 1905, P. L. 26, which reads in part as follows: "That an appeal shall lie in the orphans' court of each county of the Commonwealth from all decisions rendered ** by the register of wills for said county, granting an issue devisavit vel non in a contest concerning the validity of a will," an appeal lies from his decision to the orphans' court. In this respect section 13 of the Act of March 15th, 1832, supra, has been modified.

**

An appeal has been taken to the orphans' court from the decision of the register and we now act in his place and decide the same questions that were before him. No request to send an issue to the common pleas was filed with the register nor in the orphans' court since the appeal was taken. We hear the case de novo and a request for an issue to try the disputed questions of fact could have been filed as well before the orphans' court as before the register and, if such request had been filed, it

would have been our duty to frame an issue and send a precept to the common pleas, since it was agreed by all the parties that there were substantial disputed questions of fact material to the issue. "It is therefore, the duty of the party requesting an issue to set forth the facts in dispute, in order that the court may be able to determine their materiality. If the facts in dispute are material, the court is bound to award an issue when requested; otherwise not; ***" (Cozens' Will, 61 Pa. 196.) It is perfectly clear to us that the register, of his own motion, could not award an issue devisavit vel non unless requested by a party interested setting forth the facts in dispute. Section 41 of the Act of March 15th, 1832, supra, provides as follows: "Whenever a dispute upon a matter of fact arises before any register's court the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof, in the form herein before prescribed for the direction of registers, ***" Registers' courts are now obsolete, having been abolished by the Constitution of 1873. Section 22 of Article 5 of the Constitution, after providing for the creation of separate orphans courts, etc., etc., states: "In every county, orphans' courts shall possess all the powers and jurisdiction of a register's court; and separate registers' courts are hereby abolished." Under section 41 of the Act of March 15th, 1832, supra, the orphans' court takes the place of the register's court and has power to issue a precept to the common pleas to determine disputed questions of fact, "at the request of any person interested." The only authority the orphans' court has for granting an issue devisavit vel non is found in the Act of February 28th, 1905, supra, which modifies section 13 of the Act of March 15th, 1832, supra, and which, by implication, gives the orphans' court authority to grant an issue devisavit vel non. "Neither register nor ophan's court may grant an issue d. v. n., unless expressly requested so to do by a party in interest, but must find the facts without the aid of a jury. Demand for an issue must be made in due time." (Hawkins' Orphans' Court Principles and Practice, page 95.) Therefore, it appears equally clear to us that the orphans' court, like the register, is without authority to grant an

issue devisavit vel non, except at the request of a party interested, clearly setting forth the alleged material facts in dispute. However, the orphans' court is given statutory authority to send issues of fact, about which it is in doubt, to the common pleas for trial by jury whenever it shall deem it expedient to do so. "The 55th section of the Act of March 29, 1832, P. L. 208, provides as follows: 'The orphans' court shall have power to send an issue to the court of common pleas of the same county, for the trial of facts by a jury, whenever they shall deem it expedient to do so." This act merely confers upon the orphans' court the power which had been exercised by a chancellor to direct an issue to the common pleas to determine a particular question of fact as to which he felt in doubt. The verdict of a jury in such case was for the purpose of enlightening his conscience as to the fact in question. He was not bound to accept the verdict of the jury; on the contrary, he might reject it, unless satisfied that it was right. It has never been held that a chancellor was bound to send such issue to a jury, unless he deemed it essential to a proper disposition of the case. In other words, it was a matter of discretion." (Kate's Estate, 148 Pa. 471, quoting from page 481.)

As we already have said, it was agreed by counsel representing the parties to this controversy that there are disputed questions of fact. To our mind, it is a very close question and places us in serious doubt as to these facts: Whether or not Catherine Ann Byerly was in Greensburg at the place and on the date the will probated is alleged to have been executed; whether or not the person who executed that will was Catherine Ann Byerly; and whether or not it is her last will and testament. Therefore, we deem it advisable, for the purpose of enlightening the conscience of the court and for the general satisfaction of all the parties concerned and for the proper disposition of this appeal from the register, to direct an issue to the court of common pleas to determine by the verdict of a jury these facts.

And now, to wit: the 21st day of August, 1915, the court directs a precept for an issue to the court of common pleas of Westmoreland County, Pennsylvania, for the trial and determination of the following questions:

First. Was Catherine Ann Byerly in Greensburg, in

the office of Joseph J. Knappenberger, Esq., the scrivener of the will, on the 9th day of June, 1913?

Second. Did Catherine Ann Byerly sign and execute a will on the 9th day of June, 1913?

Third. Is the paper writing of Catherine Ann Byerly, dated the 9th day of June, 1913, and probated on the 27th day of June, 1914, her true last will and testament?

Fourth. Should letters testamentary issued thereon to Joseph J. Knappenberger be revoked?

HENSEL, ADMINISTRATRIX, vs. FAUST,
EXECUTOR.

Promissory Note-Presumption of Payment-Evidence-Act of June 11, 1891, P. L. 287.

Facts sufficient to overcome the presumption of payment of a note. Under the Act of June 11, 1891, P. L. 287, an incompetent witness can be rendered competent only by another witness testifying to the same declaration or facts.

In the Court of Common Pleas of Lehigh County. Rule to show cause why new trial should not be granted.

Frank Jacobs and M. P. Schantz, for Plaintiff.

M. C. Henninger, R. S. Siegel and Charles Riegel, for Defendants.

Staples, P. J., Forty-third Judicial District, specially presiding. July 13, 1915. On November 20, 1884, Lewis Snyder, above named, executed and delivered to Sarah Trapt his note in the sum of $1650, with warrant for entering judgment upon the same.

On November 21, 1884, judgment thereon was entered in the Court of Common Pleas of Lehigh County to No. 97 November Term, 1884.

On November 10, 1914, Lewis Snyder and Sarah Trapt were married. The said Lewis Snyder died March 5th or 7th, 1905, and Sarah Trapt Snyder died June 13, 1914. Letters of administration were granted to the said plaintiff and letters testamentary to the said defendant, and on August 26, 1914, a writ of scire facias sur said judgment to 105 September Term, 1914, was issued