Jervis Will

Concurring Opinion by

Mr. Justice Pomeroy:

While concurring in the decision of the Court, I approach somewhat differently the question whether the lower court was correct in granting compulsory non-suit.

The sequence of proceedings in the lower court was that the proponents produced the purported will and offered proof of its validity in the form of testimony of the subscribing witnesses; the contestant then presented his case and rested. Rather than proceed with rebuttal testimony, the proponents then moved “for the entry of a compulsory nonsuit and the entry of judgment sustaining the will ... as valid . . .” and directing that it be admitted to probate. The lower court found that the contestant had failed to meet his burden of proving either testamentary incapacity or undue influence. Accordingly, the nonsuit motion was granted and judgment declaring the will to be valid and directing the Register of Wills to admit it to probate was entered for the proponents.

It is true that nonsuit motions have not normally been employed in Orphans’ Court proceedings, but I see no reason why they may not be utilized in a proper case. As this Court observed in Townsend Will, 430 Pa. 318, 241 A. 2d 534 (1968), Rule 1 of Section 3 of our Orphans’ Court Rules conforms pleading and practice in the Orphans’ Court (except where a statute or rule of court provides otherwise) to that prevailing in equity. Pennsylvania Rule of Civil Procedure 1512 *233allows nonsuits in equity actions in the same manner and with the same effect as in actions of law. See Act of March 11, 1875, P. L. 6, §1, 12 P.S. §645. While it appears, then, that orphans’ courts may grant nonsuits, the grant of a nonsuit is not an appealable order; all that is appealable is an order of the court en banc refusing to take off a nonsuit. Kukich v. Serbian E. Orth. Church, 415 Pa. 28, 202 A. 2d 77 (1964). It follows, therefore, that if the nonsuit motion was proper in the case at bar, the order allowing it was not appealable, and the motion to quash this appeal should be granted.

I agree, however, that this was not a proper case for a motion for a nonsuit. A compulsory nonsuit may be entered only against parties plaintiff (or counter-claimants). While the situation of a contestant to a will is analogous to that of the usual plaintiff in terms of burden of proof, he is not in fact a plaintiff. On the contrary, a contestant is defending against probate of a document he asserts not to be a valid will. After the proponent proves a prima facie case of validity, the mere fact that the burden of proof of invalidity is then upon the contestant does not make him a plaintiff. Moreover, under the Act of 1875, supra, a nonsuit motion is proper only when the defendant has introduced no evidence; in the case before us both parties introduced evidence.

In Townsend Will, supra, at 325, we said, “it would have been better for the Decree to have used the word ‘judgment’ instead of ‘compulsory nonsuit’. ...” In the case at bar, the order granting the nonsuit motion was embellished with both terms. I believe those words in the order pertaining to a “compulsory nonsuit” should be regarded as surplusage and ignored; the decree entering judgment for proponents, declaring the will to be valid and directing its probate, was entirely sufficient without that inappropriate terminology.