Keene's Appeal , 60 Pa. 504 ( 1869 )

The opinion of the court was delivered,

by

Agnew, J.

It is not necessary we should determine the rather difficult question, what ultimate interest in the estate of Sarah L. Keene the appellant might take under her will. It is sufficient to say, he has no present interest, immediate or remote, that will enable him to maintain his petition for an account and settlement of the estate. His interest is so entirely contingent and uncertain, it may never have an actual existence. It is a hare possibility, dependent on the death of Ellen K. Mitchell without issue, and even after that comes a question of survivorship between Henry and James, to he decided before any part can reach the children of James Keene, now deceased, of whom the petitioner is one. The 1st article of the 57th section of the Act of 29th March 1832 provides that the proceeding to compel appearance, to answer in the Orphans’ Court, shall be on the petition of any person interested,, whether such interest be immediate or remote. The legislature, in using the term remote, certainly did not mean a mere possible interest so contingent and uncertain it may never' happen. If those who have existing interests, immediate or remote in the time of enjoyment, but which must certainly fall into possession at some time, do not call the executor or trustee to account, or if there he none such, it does not seem to he necessary to the due administration of justice, that one having no interest should maintain a suit that may never result in any benefit to himself. Though this point has not been expressly decided, ■we find analogies that support the conclusion. Thus, an heir at law cannot, during the lifetime of his ancestor, maintain a bill of ' discovery of facts or deeds necessary to the title of the estate, on the ground that he has no title whatever, but only a future or prospective interest: Snell’s Principles of Equity 486. A bill to perpetuate testimony will not lie in favor of a remainder-man against tenant in tail, who can bar the remainder: Id. 491. And in Okeson’s Appeal, 2 Grant 303, it was held, that a claimant of a legacy presumed to be paid by lapse of time, was not entitled to cite executors into court to answer his claim. For these reasons, the appeal is dismissed at the cost of the appellant.