dissenting. — The opinion of the majority of the court fails to give full effect to the decree of probate of the register of wills. It concludes that the marginal notations relied on as establishing a revocation must be ignored, because not expressly referred to in the decree of probate. On the contrary, it is my opinion that the decree of probate, in the absence of an express statement to the contrary, admitted to probate every word on the writing referred to in the decree as the accompanying will of the decedent. This included the marginal notations and'removed from this court the *22consideration, except on direct appeal from the decree of probate, of all questions whether the notations had been made by decedent and whether this fact had been established by the degree and kind of proof required by law. As a result, the. auditing judge properly exercised jurisdiction to construe the effect of the notations on the dispositive provisions of the will, for the latter, as modified by the notations, constitutes the true will of decedent. In the construction of the notations and the dispositive provisions, the auditing judge possessed the same jurisdiction to hear testimony as in any other case involving the construction of a will.
The majority opinion refers to the cloud cast by the existence of such jurisdiction on rights otherwise made final by the lapse of the period in which an appeal may be taken from the probate of a will, and' emphasizes the point that the limitation on the appeal period was adopted for the express purpose of avoiding such uncertainty. This reason addressed to convenience and the purpose of the legislature should not be adopted to divest the court of jurisdiction if it possesses jurisdiction. Moreover, the majority opinion, based on the objective of giving finality to the decree of probate when the appeal period has expired, defeat's that objective by concluding that, although the time for appeal has expired in this ease, an appeal may be taken from the decree of probate. In place of the desired finality, the majority opinion produces what, in my opinion, is needless circuity of action.
The sustaining of the action of the auditing judge will not work any hardship or prejudice any interest. The parties by their own statement have submitted all the evidence available on the questions determined by the auditing judge. To remand them to an appeal from probate would result only in the duplication on that appeal of the record now before the court. As to the effect of this decision on the finality of rights based on a decree of probate unappealed from within the statutory *23period, no harm will follow. The view of the auditing judge, if adopted by the court, would serve as a warn-, ing to all parties interested in any will to make certain that the decree of probate makes specific reference to any notations thereon which might have the effect of revoking any provisions of the will. It is preferable to place on parties interested in a will the burden resting on every litigant to be vigilant in the protection of his own rights rather than, as is done by the majority opinion, divest this court of jurisdiction which I believe it possesses.
In the majority opinion it is stated that the court is faced with the “following alternatives: Should we now (1) construe the register’s decree, or (2) refuse to audit the account because the register’s decree as to the disputed paragraph lacks the necessary certainty to constitute a valid judgment — is equivocal, and, therefore, a nullity.” The first alternative is then eliminated on the ground that it constitutes a “collateral attack upon the will”.
The proposition that a construction of a decree is a collateral attack on the decree cannot be sustained. Whenever the plea is made that a former judgment is a bar because of the principle of res judicata, the court in which that plea is made must examine the judgment in the former action to determine just what was there decided. This is not a collateral attack, for it does- not seek to contradict anything that was established by the former action but only seeks to ascertain what was in fact decided.
The majority opinion concludes that the decree of probate was equivocal and, therefore, null and void. The quotation made from Freeman on the Law of Judgments, in support of this conclusion, does not appear controlling. The decisions of Clineff v. Rubash et al., 126 Pa. Superior Ct. 82, and Bowers v. Gladstein et al., 317 Pa. 520, cannot now be regarded as authority, for they have been repudiated by the Supreme Court in *24adopting the Rules of Civil Procedure governing the Joinder of Additional Parties (Pa. R. C. P. 2252 et seq.), which expressly authorize that which those decisions denied. This has been recognized in Rau v. Manko et al., 341 Pa. 17 (1941). Moreover, those decisions related to the interpretation of the Scire Facias Act of 1929 and applied to proceedings thereunder the strict common-law prohibition against duplicity in pleadings. The orphans’ court has generally been considered to be unfettered by these strict concepts of common-law pleading. The decision of Smith et al. v. Bergdoll, 104 Pa. Superior Ct. 49, related to the form of a judgment to be entered where two plaintiffs had brought suit. Grakelow v. Kidder, 95 Pa. Superior Ct. 250, .related to the averments or pleadings required to support a judgment entered by confession. Neither of these last two cases is here controlling, for they were both cases in which the court which entered the judgment was passing on the sufficiency of the judgment. The instances are many in which the court which entered a judgment will condemn it as void because of a defect in form, whereas the same defect will be termed voidable and not subject to attack when the question is raised in another court. Freeman on Judgments, cited by the majority opinion, and the chapter on collateral attack in Fin-letter, Corporate Reorganization, make it clear that there are many defects which make a judgment voidable in the court in which it was rendered, but which cannot be attacked in another court, even though the judgment would be called “void” by the former court, because such act would constitute a collateral attack on the judgment. The two cases last cited, while perhaps authority were this matter before us on an appeal from the probate of the will, cannot be regarded as controlling now.
The alternatives confronting the court are not those quoted above from the majority opinion. The alternatives confronting the court are: Does the silence of the *25decree of probate as to the existence of the marginal notations have the effect of a judicial determination that such notations do not exist, or of a judicial determination that the notations exist and have been proved to be valid to the satisfaction of the register? The majority opinion states that we cannot answer these alternatives and that the solution of the problem is to hold that the decree of probate is null and void, and that the statute prescribing the period in which an appeal may be taken can be ignored and the parties permitted now to appeal from the probate.
In the absence of clear authority that we lack jurisdiction to answer this question, I dissent from the majority opinion.
The view of the majority of this court is in conflict with the action of the Supreme Court in Sarver’s Estate, 324 Pa. 349 (1936). In that case decedent, by the fourth and fifth paragraphs of her will, directed that all her real estate be sold and the proceeds divided among her children. By the second paragraph decedent’s daughter was given jewelry, household goods and “Also Dwelling House”. The opinion of the Supreme Court states that the will was typewritten on a legal form and that the three words just quoted were written in longhand.
The will of decedent was admitted to probate and letters testamentary issued to the daughter. On the theory that she was devised the “Dwelling House”, which was the only real estate possessed at her death by decedent, the daughter failed to account for such realty. A petition was then filed by her brother to compel the sale of the property and an accounting of the proceeds thereof under the fourth and fifth paragraphs of the will. A decree was entered in favor of the brother. Prom this action the daughter appealed to the Supreme Court. The decree of the lower court was reversed and the petition of the brother dismissed.
*26If the view of the majority of this court in the instant case be correct, the Supreme Court, when presented with the appeal in Sarver’s Estate, should have referred to the decree of the register of wills admitting the will to probate, in order to ascertain whether he had made any finding respecting the execution of the written notation “Also Dwelling House” on which the daughter based her claim. This would have been required because, if the majority of this court be correct, the lower court was without jurisdiction to consider the effect of the added words unless the register of wills had expressly admitted them to probate. Had there been such defect in jurisdiction, it would have been the duty of the Supreme Court to raise the objection of its own motion, although not asserted by any of the parties.
The Supreme Court, instead of examining the decree of the register of wills, declared:
“No issue is made of the correctness of the probate of the will. Since two years have passed without appeal no successful challenge can now be made: Act of June 7,1917, P. L. 415, section 16 (a). We assume the regular execution of the entire will and the insertion of the changes prior to the execution.” (Sarver’s Estate, supra, p. 351.)
In this statement it is seen that the court adopted the view that when the time for appeal from probate has expired the due execution of notations appearing on the face of the probated will must also be deemed duly proved.
The Supreme Court then proceeded to construe the effect of the added words, and concluded that they removed the dwelling house from the operation of the general clause. To this extent the notation had the effect of revoking the fourth and fifth paragraphs insofar as the dwelling house was concerned.
While the court in Sarver’s Estate did not deem it necessary to examine the decree of probate, it is significant to note the form of that decree. Counsel for *27the accountant has set forth the decree in his brief. It simply provides:
“Now, January 18, A. D. 1933, the testimony of the above-named witness being sufficient, I do hereby admit the foregoing will to probate, and order the same to be recorded as such”, signed by the register.
Like the decree in the instant case, no reference is made to the existence or nonexistence of additions or notations.
For similar cases in which the effect of cancellations has been considered on distribution, without considering whether such cancellations had been “probated” by the decree of the register of wills, see Tomlinson’s Estate, 133 Pa. 245 (1890), and Lindeman’s Estate, 141 Pa. Superior Ct. 225 (1940).
In the brief of counsel for the accountant it is stated that in Tomlinson’s Estate the order granting letters and the decree of probate were combined, and read as follows:
“Be it remembered, that on the thirty-first day of October, A. D. 1898, the foregoing will of Wells Tomlinson, late of the Borough of Norristown, Montgomery County, Pennsylvania, deceased, was duly proved and approved, and letters testamentary "granted unto Abram Wentz and Simeon M. Dutton, the executors in said will named, they having first been duly qualified according to law”, signed by the register.
In Lindemen’s Estate, counsel for the accountant states that the order granting letters testamentary was in practically the same form as in the instant case, but that, in conformity with the practice of the county in which the will was probated, no separate decree of probate was ever made.
For the reasons discussed above, I dissent from the majority and would dismiss the exceptions. I would also hold that the decree of probate established the validity of the notations, and that they were properly before the auditing judge for construction.