Proceeding in the matter of the paper writing purporting to be a codicil to the last will and testament of Alberta Hoffecker Cahoon, deceased, wherein Anna A. McCrone filed a petition for the rejection of proposed second codicil. The Register of Wills, New Castle County, denied the petition and entered an order directing that the codicil be admitted to probate and petitioner's counsel appealed. The executor of the estate of Alberta Hoffecker Cahoon filed a motion to dismiss the appeal. The Superior Court, New Castle County, Terry, J., held that where contestant, who sought rejection of second codicil to decedent's will, died after Register of Wills denied the petition, and contestant prior to her death directed counsel to appeal on her behalf from Register's decision, and counsel filed appeal in contestant's name, appeal was void and motion to substitute executrix of contestant's estate as party appellant would be denied since there was no legally existent appellant at time appeal was filed, or at any time subsequent thereafter for whom contestant's executrix could have been substituted.
[46 Del. 260] James R. Morford and Morton E. Evans, of the firm of Morford, Bennethum, Marvel
& Cooch, of Wilmington, for appellant and executrix of the estate of Anna A. McCrone, deceased.
Clair J. Killoran, of the firm of Killoran & Van Brunt, and Philip Cohen, both of Wilmington, for appellee, executor of the last will and testament of Alberta Hoffecker Cahoon, deceased.
TERRY, J., sitting.
On April 19, 1949 Anna A. McCrone filed with the Register of Wills in and for New Castle County a petition for review of the second codicil to the last will and testament of her deceased sister, Alberta Hoffecker Cahoon.
The petition prayed for the rejection of the proposed second codicil, the revocation of letters testamentary theretofore granted to Harry K. Hoch, esquire, and the framing of an issue devisavit vel non to the Superior Court for the purpose of trying the issue before a jury.
The Register of Wills on the 22nd day of April, 1949, by letter opinion, denied the petition. By subsequent order he set the cause down for hearing, and on September 29, 1950 entered an order directing that the paper writing purporting to be the second codicil to the last will and testament of Alberta Hoffecker Cahoon, deceased, be admitted to probate as such.
The petitioner, Anna A. McCrone, died on December 29, 1950. Prior to her death she directed her counsel appearing for her before the Register of Wills (counsel being engaged on a [46 Del. 261] contingent fee basis) to take an appeal on her behalf from the decision and order of the Register of Wills, aforesaid, to the Superior Court in and for New Castle County. Counsel filed the appeal in the Superior Court in the name of Anna A. McCrone on January 10, 1951. The first paragraph is as follows: ‘ Anna A. McCrone, the petitioner below and the appellant here, hereby appeals from the decision of the Register of Wills for New Castle County in the above captioned matter.’
The time for taking the appeal from the Register of Wills to the Superior Court expired by statutory limitation on March 29, 1951. Letters testamentary were granted in the estate of Anna A. McCrone on January 18, 1951, eight days subsequent to the filing of her appeal.
On April 25, 1951 the executor of the estate of Alberta Hoffecker Cahoon filed a motion to dismiss the present appeal. The motion was set down for argument at the May Term. At the opening of the argument on the motion to dismiss, counsel for the appellant in said appeal filed a motion suggesting that the Court substitute the duly appointed executrix of the estate of Anna A. McCrone, deceased, as party appellant in lieu of Anna A. McCrone as now appears. The motion to substitute was duly objected to by the executor of the estate of Alberta Hoffecker Cahoon, deceased.
The question presented is twofold:
‘ (1) Can an appeal such as in the present case be begun by a deceased person from a judgment or decree rendered against the deceased person while still living?
‘ (2) If the answer to (1) is ‘ no,’ then should the Court at this time allow the executrix of the estate of Anna A. McCrone ...