The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-11-12
APPEAL Was DISMISSED
Opinion Handed Down In the Famous
Nichols Will Contest.
APPELLANT HAD no EVIDENCE
James Nichols Was Unable to Prove That
Ills Mother Made viii, Although
lie HID Several Oppor.
tunitics TO DO So.

From the orphans court of this coun-
ty an opinion by Judge Archibald In the
famous Nichols will contest was yes
terday handed down, dismissipg the ap-
peal of James Nichols, the appellant.
with an order that he pay the costs OF
the proceedings.
In March, 1885, the decedent. Mrs.
Sarah Nichols, died, and on May 81, 1892,
seven years afterward, the appellant,
James Nichols, her son. presented his
petition to the register of wills. alleging
that she died testate. and that her will
was in possession of Asa A. Nichols,
another son, and Flora A. Nichols, his
wife. Upon this citation issued re-
turEable June 6, following 10 which an
answer was duly made by the parties
cited, denying that they had possess
sion of any such will and Affirming
that they never saw or heard of any.
The hearing on the citation was con-
tinued by the register to June 13 and
the petitioner not appearing, the pro-
ceedingS were dismissed.
On June 2S on a plea of surprise and
presentation of a new petition he reg
lister allowed rehearing and issued
a second citation, returnable July %.
A new party was brought into these
second proceedings, Mary Davis. a
daughter of the deceased; but the cita-
tiOn was not served in time and an
alias had to issue to Aug. 1 following.
Unable 10 Furnish Proof.
This came to a final hearing on Sept.
Q. 1892, when counsel for the petitioner
stated they had no further evidence.
and that they were unable to prove that
the alleged will of Mrs. Nichols was in
possession of the parties cited. where
upon the proceedings were again dis
81, 90 th.a
Nothing further was done until May
II, 1895, when the same party again pre-
sented his petition to the register. al
leging upon newly discovered evidence
that there was WILL and that 1t was in
the possession of the said Mary Davis,
and praying for a rehearing. The reg
lister entertained the application so far
as to award a citation to Mary Davis
and Asa A. Nichols, to appear on June
8 following and show cause why the Will
should not be produced and proved.
But after considering the testimony
produced in support Of the petition, the
register decided there was not enough
to warrant a rehearing and, therefore,
dismissed the petition with costs. 1t
was upon this record that the appeal
was taken. The opinion says:
AT the return of the rule entered, ac-
cordng to our practice on the respond
ents to show cause why the appeal
should not be entertained, 1t was urged
upon us that the appellant Is conclud-
ed by the decision of the register made
in September, 1892. which the last pro-
ceedings have Intellectually sought to
open, and that the appeal ought there
fore to be dismissed.
Must DC Made Within Three Years.
while an appeal to the orphans
court is allowed by the statute from all
the judicial acts and decisions of the
register. yet it Is expressly provided
that all such appeals must be made
within three years. 1t Is very clear
therefore that 1t is now too late to ask
to review the decision dismissing the
appellants petition, which was made
Sept. 3, 1892 the present appeal not
having been lodged in this court until
Sept 90, 1895.
"Is the appeal any more effective
because Of the intervening proceedings
which have been taken? We think not
If the present register after hearing
the appellant, had reversed the decis-
ion of his predecessor, assuming he had
the right to do so, and had held that
the possession by the respondents of n
will Of the decedent had been sufficient
ly established. this would have been a
new judgment from which the parties
aggrieved could have taken their ap-
peal to this court. But that was not
what was done. The register merely
reopened the case far enough to see
whether there was any occasion for
reconsidering the former ruling of the
Office, and not being satisfied that there
was, refused to do so.
1t Is q Matter Of GEacs.
"A hearing in such a case Is a matter
of grace and not of right, and rests IN
the sound discretion of the register.
Assuming that the case is for the time
reopened by the fact that the register
entertained the petition and cites the
parties to appear and answer it, still
when the proceedings are dismissed
without other action than to confirm
the former decision, what was thus
transparently opened is thereupon re-
closed, leaving the original order to
stand unaffected by what has been
done. Unless this be the case there is
no finality to proceedings Of this char
acter The mere presentation of q pc
tition to the register, which he refuses
to hear. win be able to put new life
into them any time, no matter how dis
tant from the date Of the original de-
cision. and a party can keep them re-
vived in this way for a generation.
This can not be the law. In every
legal proceeding the parties litigant
are bound to produce all the evidence
which they have upon the subject, and
whether they do or do not Is concluded
from the result. There may be an in
harpnf right In avory cn,,rf ,,,c.,