Kuntz's Estate

Citations

• 230 Pa. 557
• 79 A. 755
• 1911 Pa. LEXIS 652

Syllabus

<p>Executors and administrators — Removal of executor — Order to deliver assets — Bond for supersedeas — Practice, O. C.</p> <p>1. Where there is pending in the orphans’ court at one and the same time an appeal from a probate of a will, an application in the same estate for an issue devisavit vel non and a petition asking for the appointment of an administrator pendente lite, it is proper for the court to pass upon the petition for the appointment first and to appoint an administrator pendente lite if the facts warrant it. It is irregular practice to order all matters relating to these issues to be heard together, but such action of the court in itself is not reversible error. If, however, the court in dismissing the appeal, the application and the petition, at the same time enters a decree removing the executor upon a mere motion for removal, after all the testimony was in, and after it had refused to expunge averments in the petition which were only relevant upon the validity of the will and without bearing upon the removal of the executor, the decree of removal will be reversed.</p> <p>2. In such a case the executor has just ground for complaint, because he was not given an opportunity during the whole course of the hearing to fairly meet and answer any direct issue involving his peremptory removal as executor.</p> <p>3. Pending an appeal from an order removing an executor, the orphans’ court is not justified in making a peremptory order upon the executor to deliver over the assets in bis hands to an administrator who had been appointed in the meantime, where it appears that the executor had no time to file an account, that he had not been asked nor given an opportunity to enter security, that he was not charged with embezzlement, and that he was ready, as the evidence showed, to render an account of his administration of the estate.</p> <p>4. Where an executor, who has been removed from his office, ha3 surrendered all the personal assets, except household goods