This family has been involved in acrimonious and protracted litigation for more than four years. The death of Harry Banks, decedent in this action, on August 16,1959, appears to have intensified rather , than reduced the bitterness of the parties.
On September 23, 1958, Clara Banks, decedent’s wife, filed a bill in equity against her husband in the Court of Common Pleas No. 1, as of September term, 1958, no. 268. One month later, on October 23, 1958, she filed a fraudulent debtor’s attachment against him in the Court of Common Pleas No. 2, as of September term, 1958, no. 1545. By stipulation of the parties, this second suit was transferred to No. 1 Court and consolidated with the equity action. A study of the record in this case reveals that a compromise in the nature of a family settlement was reached after the death of Harry *242Banks, on October 19, 1959, in which the parties stipulated, inter alia, that a caveat which had been filed with the register of wills should be withdrawn. An agreement was also reached with respect to the manner in which his estate was to be distributed. This agreement was signed by Clara Banks and her three sons, Daniel, Maurice and Eugene (who was a minor), by decedent’s two brothers, Morris and Samuel, and by his two sisters, Nettie Wilf and Jennie Jastrow, and was approved by Hagan, P. J. On July 1, 1960, more than eight months after the settlement was approved, Clara and her three sons filed another bill in equity in C. P. No. 1, as of June term, 1960, no. 1261, seeking to set aside the settlement, alleging that they had not known of the existence of a later will, dated August 12, 1959, the validity of which is the subject of the present contest. As of this writing, it is difficult to determine whether the family stipulation and agreement is still in effect.
The crux of the present dispute is the contention that a will executed by decedent four days before his death, leaving his entire estate to his three sons, was fraudulently suppressed by the beneficiaries under the previous wills. This crucial phase of the controversy was not sufficiently stressed by the contestants in their oral arguments or in the briefs which were furnished to the court by them.
Moreover, we regard as one of the most serious impediments to a proper disposition of this case the fact that, in spite of the dubious conduct and character of the parties to this ugly controversy, and the long delay in revealing the making of the alleged will which it is charged was lost or suppressed, none of the judges of this court has seen or heard the witnesses upon whom the contestants rely. Moreover, it should also be noted that none of the parties- charged with the suppression of the alleged lost will testified at any point in these *243proceedings. The demeanor of the witnesses on the stand and the impressions they make upon a hearing judge could be of the utmost importance in measuring their credibility and reaching a conclusion with respect to the truth or falsity of the contestants’ charges.
The register of wills, having accepted for probate the will of September 16, 1958, as republished by the holographic will of April 21,1959, may have exceeded his authority when he issued the citation to compel the alleged lost will to be deposited with him. However, any procedural errors now become unimportant as the matter is properly before us on appeal from probate and we are authorized under the provisions of the Orphans’ Court Act to hear the testimony de novo and to determine which of the alleged writings of testator is his last, valid and effective will. In any event, under Supreme Court Orphans’ Court Rule, section 2, rule 1 (Philadelphia Orphans’ Court Rule 21) : “. . . The court at every stage of any action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties in interest.” A majority of the court is of the opinion that the ends of justice require that the contest be heard de novo by a judge of this court, who, after taking the necessary steps to correct the defects in this record and making certain that all necessary parties have been joined in this litigation, shall impanel a jury to decide questions of fact in accordance with the provisions of section 745 (c) of the Orphans’ Court Act of 1951, as amended by the Act of July 14,1961, P. L. 610.
We, therefore, enter the following
Decree
And now, February 21,1963, the exceptions are dismissed pro forma and the president judge will refer the matter to a hearing judge, who shall proceed in accordance with this opinion.