Loudenslager Will

¶1Dissenting Opinion by

¶2Although the majority correctly states that the only question before us is the county of decedent’s domicile, it fails to note that the parties have arrived at an understanding1 that the other two grounds advanced to defeat probate—lack of testamentary capacity and undue influence—will be litigated after this Court’s decision.2 With these further grounds of attack reserved, the appeal here is from a clearly interlocutory order. See, e.g., Stewart Estate, 423 Pa. 189, 223 A. 2d 685*43(1966); Keasbey’s Trust Estate, 342 Pa. 439, 20 A. 2d 281 (1941). Of course, the Act of August 10, 1951, P. L. 1163, §771, 20 P.S. §2080.771, permits appeals only from final orders or decrees of an orphans’ court. •The fact that this appeal involves a jurisdictional question does not make an otherwise interlocutory order appealable for orphans’ court decrees are not within the purview of the Act of March 5, 1925, P. L. 23, §1, 12 P.S. §672. Heinz’s Estate, 313 Pa. 6, 169 Atl. 365 (1933).

¶3However, there has been no motion made to quash this appeal. In the absence of such a motion (which, had it been made, should have been granted), we still may quash this appeal on our own motion. See Steel v. Levy, 282 Pa. 338, 127 Atl. 766 (1925); Kennedy v. Banbury Equipment Corp., 202 Pa. Superior Ct. 242, 195 A. 2d 832 (1963). As a judicial system already overburdened with litigation, we should not encourage piecemeal appeals and I thus believe that this appeal should be quashed.

¶4Turning to the merits of this controversy, the majority opinion suffers from a failure to distinguish between two subtle, but nevertheless distinct, aspects of the problem generally classified under the rubric “burden of proof.” Those two aspects are the burden of first producing evidence and the burden of persuasion.3 The burden of first producing evidence is a procedural rule designed for the orderly conduct of trials; it tells the court upon which party the burden rests to first come forward with his evidence. The burden of persuasion has a different function—it determines which party must produce that quantum of evidence neces*44sary either to take his case to a jury or to convince a judge that a fact has been established. Although in many cases the same party will have both the burden of first production and the burden of persuasion, this is one case in which these burdens are properly allocated to different parties. To the appellants falls the burden of first production but to appellees is given the burden of persuasion.

¶5- In’ the context of this case, we should be initially concerned with what impact the probate of decedent’s will by the register has upon the burden of first producing evidence. Although the majority seems to distinguish between the burden of first producing evidence when the issue is the validity of the will and the burden of first production when the issue is the jurisdiction of the register, our cases support no such distinction. Stemming primarily from the doctrine that the grant of letters of administration is a judicial act,4 our cases have evolved the rule that the party seeking reversal of a register’s action has the burden of first production. Perhaps the best clarification of this rule is contained in Geho’s Estate, 340 Pa. 412, 415-16, 17 A. 2d 342, 344 (1941) : “Proof of the fact of the probaté of a will does not upon an appeal from the probate have any evidential value . . . but it does have procedural value, for it raises a presumption of the will’s validity and this presumption becomes a challenge for proof addressed to the challenger of the will.

¶6“The proper practice upon appeals from the probate of a will is to offer the register’s record of probate, including the will. Then the burden of coming *45forward with proof shifts to the contestants. [Citation omitted.] This burden of proof does not shift back to the proponents until the contestants have offered evidence of such probative value in support of their allegations against the will, that if it stood uncontradicted it would upon an issue being awarded support a verdict against the will.” (Emphasis in original.) Geho gives not an inkling that the burden of first production turns upon the nature of the issue involved; and it does not for the reason that this burden is a function not of the nature of the issue but of the fact that a quasi-judicial tribunal has already decided that the will should be probated. The nature of the issue raised is thus irrelevant and the party appealing the register’s decision always has the burden of first production.

¶7Once the burden of first production has been met (I believe that the evidence offered by the appellants was sufficient to meet this burden), the court must then allocate the burden of persuasion. If one envisions the evidentiary scales equally in balance, the burden of persuasion would dictate which party prevails—and that party would be the party on whose shoulders the burden of persuasion does not fall. Placed in context, which party here had the burden of persuading the trial court that decedent died domiciled in Montgomery County? I agree with the majority that the appellees had this burden, and therefore also conclude that the court below erroneously placed the burden of persuasion upon the appellants.

¶8Having decided that the court below erroneously allocated the burden of persuasion, the issue remains ias to the proper disposition of this litigation. It is here that I must dissent. There is testimony in this record by two of the appellees, both daughters of the decedent, that he intended to make Montgomery Coun*46ty his domicile. If the trial judge believed these two witnesses, even with the burden of persuasion properly placed upon the appellees, they should prevail. The trial judge did not make any assessment of the credibility of the witnesses other than Mrs. Kucher because his misallocation of the burden of persuasion rendered this assessment unnecessary. In my view, this record should be remanded so that the court below may evaluate the testimony presented in light of a properly allocated burden of persuasion, and I therefore conclude that a reversal without remand is improper.