The following opinion was delivered by
King, President. —There are many points of resemblance between proceedings for the probate of wills as they exist in the English Ecclesiastical Courts, and those prescribed by the statutes and usages of Pennsylvania.
The probate (prolationum receptio) in common form of the Ecclesiastical Courts, is like to the ex parte probate granted by our Registers on the production of a testamentary paper, and the examination of the witnesses adduced by the party propounding it to prove its due execution.
The ecclesiastical probate in solemn form is a proceeding in which all parties, who would have represented the alleged testator had he died intestate, are made parties to the suit, and the probate is granted or refused after a full investigation of all the allegations of fact or law urged for or against a decree giving validity to the will. This *156procedure is analogous to that indicated by our Act of Assembly and the usage under it, where a party in interest files a caveat against the Register’s granting probate of an alleged -will, until he has noticed all parties claiming to be heard in opposition to such grant.
The peculiarity of our system is the right of trial by jury given to the party contesting a testamentary writing. This right of trial by jury is given as well on the occasion of the propounding of the will for probate to the Register, who is with us the tribunal of the first instance; as■ when on appeal the controversy reaches the Register’s Court, which is the immediate revisory tribunal of the judicial acts of the Register. But the right to claim a trial by jury is not precise and identical, as to the time and manner of claiming it, in the two forums. The fact of this difference is apparent from the perusal of the 13th and 41st sections of the “ Act relating to Registers and Registers’ Courts.” The reason of the diversity also seems manifest. The 13th section declares that “ Whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege, as the ground thereof, any matter of fact touching the validity of such writing, it shall be lawful for the Register, at the request of any party interested, to issue a precept to the Common Pleas, directing an issue to be formed on said fact or facts.” The words “ shall be lawful,” in this section, according to well settled rules for the construction of statutes, give the party claiming the issue the absolute right to it, and leaves no discretion in the Register: 6 Bac. Abr. 379; Salk. 609; Com. Dig. vol. 5, 330, Parl.
The allegation of the existence of matters of fact touching the validity of the supposed testamentary paper, and the claim of an issue for the trial of such alleged facts by jury, arrest the further functions of the Register until such facts are determined by the trial. In other words, it transfers the contestation of the factum of the will, the decision of the facts involved in the probate in solemn form, from the Register to a jury acting under the supervision of a court of law.
When, however, the parties to any proceeding before the Register do not think fit to demand an issue from him, but abide by his decision, which is removed to this Court by appeal, a different system for the obtaining of a trial by jury is marked out; one more analogous to the ordinary course of judicial proceedings, where a Court requires the aid of a jury in determining on litigated facts. “Whenever,” says the 41st section of the act, “a dispute upon a *157matter of fact arises BEFORE any Register’s Court, the said Court shall, at the request of either party, direct a precept for an issue to the Court of Common Pleas for the trial thereof.” This obligation to award an issue does not refer simply to a testamentary cause, as in the case of Registers, but to any contest coming before a Register’s Court, where disputed facts arise in the course of the litigation. In other respects, the two systems differ. The Register must award an issue on the mere allegation of a party, requiring it, that facts touching the validity of a will are the grounds of his exception to its admission to probate. Where such facts are alleged as the basis of the exception to a will, and an issue for their trial is demanded, the Register’s authority is arrested in liming. His functions are suspended until the primary inquiry is made in the manner prescribed by law. Rut in the case of proceeding in a Register’s Court sitting to revise the judicial acts of a subordinate tribunal, the case is different. It is when “ a dispute arises before the Court upon a matter of fact,” that the Court are estopped from determining it themselves, and required, at the request of either party, to refer it to a jury. Although the act does not say so in words, it must mean that the disputed fact on which an issue is claimed must be a material fact in the controversy, and be so regarded by the Court. This materiality the Court must, in the first instance, judicially determine; their decree, however, in this particular, as in all others, being subject to the correction of the tribunal of the last resort. In equity, the refusal of an issue, where it ought to have been granted, is ground for appeal: Hampson v. Hampson, 1 Ves. & B. 43; Neol v. Vaughin, 2 Dow. & Clark, 420.
The “ dispute as to facts” must arise when the case is on hearing before the Court. This is the time for claiming the issue, and the time when the Court is to judge whether there are truly any facts in dispute; and whether, if so, they are at all material to a just determination of the question before the Court. What a party may choose to call disputed facts, may, if the Court proceeds, never appear in proof, or may be wholly immaterial and irrelevant to the question before the Court. If we construe this law to mean that when, on the hearing of any cause before a Register’s Court, there actually arise disputed facts, material to the very question involved in the controversy, the Court must award an issue at the request of either party for a trial by jury; we accord all the rights given by the law to the one party, without doing injustice to the other. .But if we the construction of the appellees, and holdj that, before *158we proceed to the examination of the case, either party may arrest our action upon a mere allegation of the existence of any disputed fact his imagination or his prejudices may conjure up; it is plain to perceive that there will be introduced into the proceedings of a tribunal, required by the nature of its jurisdiction to act with promptitude and vigour, a terrible element of procrastination and delay. An issue at law, obtained at the mere request of a party, without showing to the Court in any way the necessity for it, followed by the bills of exception taken on the trial, writs of error, and all the other instruments for delay employed in common-law proceedings, would afford to an excited suitor in this Court a most effectual means of imposing on his adversary useless, burdensome, and oppressive litigation. These evils are avoided by the construction adopted by us of the 41st section of the Act, in holding that a Register’s Court is not bound to award an issue until, after a cause having progressed before them, it becomes manifest that its just determination involves the decision of disputed facts material in their influence. When that state of things arises, either party may withdraw the decision on such facts from the Court to a jury, and the Court must stay its action until informed of the truth of the controverted facts by a verdict. But if no disputed fact arises, or none deemed by the Court material to the solution of the legal principles involved in the litigation, the Court must proceed, and determine the cause.
Issues directed by courts of law and equity are familiar things with us. But this is the first time in which it has been suggested, that any court would invoke the aid of a jury to assist them in the decision of material controverted facts, until the actual existence of such controverted facts was first shown to them by other evidence than the mere allegation of a party. To enable them to award the issue, the Court must know the precise point of dispute, and that can only be known from the evidence laid before them, or at least by an affidavit of the party asking the issue, setting forth with clearness and precision a state of facts, irreconcilable with those alleged by his opponent.
It may be said, that, in the case of the Register taking probate of a will, the mere request of a party in interest may withdraw the decision from him and transfer it to a court and jury, and all the inconvenience deprecated by us must follow. To this it is replied: first, that the Act of Assembly is so express in this case, that no room for any construction against its express words exists. Second, that the 18th section of the Act refers only to testamentary causes, *159which, in general, are causes peculiarly proper for the decision of a jury; whereas the 41st section applies to all cases testamentary, and others which may come before a Register’s Court on appeal. And, thirdly, the framers of the law were fully aware, that Registers were rarely lawyers, and might, therefore, haye deemed it expedient, that any party should have the right to withdraw from the Register, a testamentary cause in limine: a reason which could not apply to a Register’s Court, constituted as it is of at least two Judges sitting with the Register.
The present state of the controversy is this : The Register having refused to take probate of the will of Thomas Bradford, dated March 12,1821, on the distinct ground that said will was revoked by a later will dated in 1835, we have reversed his decree and determined that probate of the prior will ought to be granted. By the 39th section of the Act “relating to Registers and Registers’ Courts,” we may and shall do all such judicial acts on matters lawfully brought before us, as belong, andhf right ought to belong to the office of Register. We, therefore, take up the case at the point the Register left it, and being of opinion that probate of the will of 1821 was illegally refused by him, we will proceed to do what he ought to have done, and take the probate. Before decreeing for the validity of the paper, we will hear all proofs and allegations that either party may interpose for or against such a decree. If, during the contestation, material disputed facts arise, and either party requires an issue for the decision of such facts by a jury, we will award it. But in the present state of the proceedings, before we have moved in the cause, we regard the requisition for an issue premature and inadmissible.
The form, too, in which it is asked, seems too vague and imprecise, even if otherwise admissible. Issue refused.