The opinion of the court was delivered, by
Read, J.If the issue in this case was improperly framed by the register, the true remedy was by an appeal to the Register’s Court to rectify it, for the writ of error to the Common Pleas brings up nothing but what occurs upon the mandate of the register after it roaches the court, whose duty it is to cause an action to be entered as of the day of the delivery of the said precept in the prothonotary’s office, and to be proceeded in as therein directed. The proper order as to an issue was made by the court, and also as to notice to all persons interested in the estate of the decedent as heirs, relations, or next of kin, devisees, legatees, or executors. A narr. was filed by the plaintiffs, to which the defendant pleaded, and issue was formally joined, and the question to be tried was, whether this paper was or was not the last will and testament of the decedent. When the cause was called the counsel for the defendant objected to trying any other fact than whether the paper purporting to be the will of the decedent was procured by duress or constraint, and the court said they would allow the defendant’s counsel to give in evidence any matter, either duress, undue persuasion, or mental imbecility, in opposition to the alleged will, but the defendant’s counsel declined to try any other fact than whether the alleged will was procured by duress or constraint. This statement is called on the record a discourse, and is only an account of a conversation prior to the calling of the jury. Upon the trial the will was duly proved by the subscribing witnesses, and the defendant gave no evidence of any kind, but offered the paper stating the grounds of objection to the probate, filed with the register, with which the Common Pleas has nothing to do.
• The bill of exceptions, so far as appears, contains no exception, except to the charge of the judge, and in this we see no error particularly, as the defendant neither excepted to the testimony on the part of the plaintiffs, nor offered any evidence on his part, nor made any point of any kind, nor submitted any proposition or objection of any nature to the court, who con*83ducted the proceeding strictly in accordance to law. Two possible positions may arise from the judge’s charge : 1st. That the precept from the register was not stamped. It would not seem that this precept comes within the description of writ, or other original process by which any suit is commenced, and if it did, it is saved by the Act of March 3d 1863, and covered by the proviso of the 16th section, as it was neither admitted or used as evidence in the courts. 2d. The objection that notice was not given to persons interested in the estate of Barbara Henk, a daughter of the decedent, is founded in error, for notice is directed in the notice of January 23d 1863, to be given to them; and all the parties interested in said estate, consisting of the real defendant, the mother and sisters of the deceased, had notice served upon them.
The precept says the alleged will is annexed to it, and we find it before the court, and it comes up with and as a part of the record. These are the only errors pressed upon our attention, and we think the court acted legally and liberally, and we see no error in their proceedings. This disposes of all assignments of error, and it is not our duty or wish to discuss what is the effect of this judgment.
Judgment affirmed.