Proceeding to review admission of will to probate, wherein Register of Wills framed an issue devisavit vel non for trial by a jury. The proponents filed motion to dismiss the issue on grounds that bond was not timely filed by contestant, and that the issue was moot. The Superior Court, Sussex County, Carey, J., held that the Superior Court in such a proceeding, could not pass upon adequacy of the register's record or the propriety of its rulings, but where the court's attention was called to important questions the determination of which might result in making jury trial unnecessary, court would, in its discretion, temporarily stay the proceedings therein to allow necessary steps to be taken for determination of such questions.
Order in accordance with opinion.
[47 Del. 561] Motion to dismiss an issue devisavit vel non framed by the Register of Wills for trial by a jury under Section 3802, Revised Code 1935.
According to the record before the Court, the will of Fannie Harmon was probated in common form on January 24, 1951. Lammontte Harmon Warrington, a daughter, on November 21, 1951, filed a petition for review under Code Section 3801. The Register's docket indicates that on the same date citations were [47 Del. 562] issued upon the executor and the sole beneficiary. On December 11, 1951, the Register ordered an issue framed for trial by a jury in this Court. No bond as required by Code Section 3801 was filed by the contestant until February 27, 1952. It was on that day approved by the Register. On the following day, the record was delivered to this Court.
Nothing in the record shows affirmatively that the Register ordered a review as required by the cited statute. Likewise, nothing in the record indicates that the Register was ever asked to dismiss the proceeding. At oral argument, however, counsel for proponents insisted that such a request had been made, notwithstanding the failure of the record to show it.
The present motion asks this Court to dismiss the issue on the ground that the bond was not filed within the period of time permitted by Code Section 3801. An additional reason given the Court is that, some time after the issue was framed, a final account was passed by the executor showing the estate to be insolvent, and that there are no assets of any nature which would pass to the beneficiary or to the heirs or next-of-kin.
Code Section 3801 reads in part as follows:
‘ 3801. Sec. 3. Review, When Ordered; Bond for Costs; Proceedings Upon:-Any person interested who shall not voluntarily appear at the time of taking the proof of a will, or be served with citation or notice as provided in Section 1, shall at any time within one year after such proof have a right of review which shall on his petition be ordered by the Register, but unless the petitioner or petitioners shall, within ten days after such review shall have been ordered by the Register, give bond to the State, jointly and severally if more than one petitioner, with such sureties and in such penal sum not less than Five Hundred Dollars and not more than Five Thousand Dollars as the Register may determine, conditioned for the payment of any and all costs occasioned by such review which may be decreed against such petitioner or petitioners, such petition shall be considered as [47 Del. 563] abandoned
and shall be dismissed and proceedings may be had in all respects as though no such review had been ordered. Upon such review there shall be the same proceedings as upon a caveat; and the allowance of the will and granting of letters may be affirmed or the will rejected and the letters revoked.’
The statute pertaining to framing of issues by the Register is Code Section 3802 which reads as follows:
‘3802. Sec. 4. Issue to Jury; Power to Order; Form of:-The register shall have power to order any issue of fact whereof he may prescribe the form, touching an instrument purporting to be a will, to be tried by a jury in the Superior Court.’
James M. Tunnell, Sr. (of Tunnell & Tunnell), Georgetown, for ...