Eliza Miller's Estate

Citations

• 174 Pa. 362
• 34 A. 619
• 1896 Pa. LEXIS 890

Syllabus

<p>Practice, O. G. — Petition and answer — Replication—Irrelevant matter.</p> <p>A petition for the removal of a trustee averred that the trustee in his second and final account filed expressed his desire to be discharged. The petition prayed the court to enter a decree discharging him at his own request. The trustee filed an answer averring that while he formerly desired to be discharged he had since been advised and believed that it was to the best interest of the estate that he should continue as executor and trustee. A replication was thereupon filed denying that it was to the best interest of the estate that the trustee should continue to act, and averring actual or prospective insolvency of the trustee, and also mismanagement. Held, (1) that this was bad practice; that instead of filing a replication averring new matter, the petitioners should have asked leave to amend their petition by inserting therein other grounds for the trustee’s discharge; (2) that the trustee, by acquiescing in the proceeding and by taking testimony upon the consideration of which the court discharged him, could not after entry of the final decree against him take advantage of the irregularity in the proceedings; (8) that merely verbal objections to the irregularity without any objection filed of record would be of no avail to help him after final decree.</p>