Opinion by

Sarah Nichols died on March 29, 1885. On May 21, 1892, James Nichols, one of her sons, presented his petition to the register of wills of Lackawanna county, alleging that his mother died testate, and that her will was in the possession of Mary Davis and Asa A. Nichols and Flora Nichols, his wife. The *486register thereupon issued a citation to these parties, requiring, them to produce and deposit the will for probate. The proceeding was had under section 7 of the act of March 15, 1832, P. L. 185, which provides as follows: “The register having jurisdiction as aforesaid shall, at the instance of any person interested, issue a citation to any person having the possession or control of a testamentary writing alleged to be the last will and testament of a decedent requiring him to produce and deposit the same for probate, and if such person shall conceal or withhold such writing during the space of fifteen days after being personally served with a citation issued in the manner and form aforesaid, he shall be liable to an indictment as for misdemeanor, or to an action for damages by the person aggrieved.” The register heard the testimony on both sides, and on September 8, 1892, dismissed the proceeding.

On May 17, 1895, James Nichols presented another petition to the register of wills then in office, alleging that he had discovered new evidence, and for that reason asking for a rehearing, and a citation to Mary Davis and Asa A. Nichols to show cause why the will of the said Sarah Nichols should not be produced and admitted to probate. The citation went out, and after due hearing, the register made the following order: “Now, August 14, 1895, after a careful review of all the testimony before us, it is not sufficient to warrant us to change the decision heretofore made by the register of wills in these proceedings, therefore the prayer of the petitioner is refused, and the costs placed upon the petitioner.” From this decision, which was in effect, merely a refusal of a rehearing, James Nichols appealed to the orphans’ court, which court dismissed the proceeding.

The application for a rehearing was in the nature of a motion for a new trial, and its refusal, in the absence of something on the record to show a gross abuse of discretion, would not under any circumstances be reviewable here. If the decision of this question were to determine the fate of the appeal, we see nothing to indicate any abuse of discretion on the part of the register or the court below.

But we are further of the opinion that the register performed the full measure of his duty, under the act of 1832, by merely issuing the first citation. He had no power to try the question, as to whether a will was made or whether the parties cited had *487it in tbeir possession or control. It became the duty of these parties to “produce and deposit the same for probate” within fifteen days after service of the citation, if they had the will in their possession or control. No hearing or trial before the register is contemplated by the act, and he is without power to enforce any decree he might make in the premises. The issuing and the service of the citation are merely preliminary to, and a ground work for, the remedies expressly provided by the statute, namely, indictment or action for damages. This construction of the act was long since adopted by the orphans’ court of Philadelphia county (see Prentzell’s Estate, 1 W. N. C. 222, and McDonald’s Estate, 14 Phila. 253), and is the only one admissible.

Had this question of the register’s jurisdiction been raised in the court below, we doubt not the learned judge thereof would have held as here indicated.

The decree is affirmed and the appeal dismissed at the cost of the appellant.