Mintzer's Estate , 163 Pa. 484 ( 1894 )

Opinion by

Mr. Cbtee Justice Sterrett,

In March, 1893, the Orphans’ Court of Philadelphia appointed one of the appellants, Edward L. Mintzer, Sr., guardian of the person, and Francis EL. Thole, the other appellant, guardian of the estate of Walter A. Mintzer, a minor under the age of fourteen years. As directed by the court, said guardian of the estate gave bond with security in the sum of sixty thousand dollars. A few days thereafter, tile appellee, Horace P. Green, was appointed guardian of the person and estate of same minor by the Orphans’ Court of Delaware county, and thereupon presented his petition to the Orphans’ Court of Philadelphia, denying the authority of said court to make the first mentioned appointments. Testimony was taken, and the matter was so proceeded in that the jurisdiction of the Orphans’ Court of Philadelphia in the premises was fully sustained. Appellants then petitioned the Orphans’ Court of Delaware county to revoke the appointment of appellee, as guardian, etc. That application resulted in the following decree of November 9,1893: “that the appointment of the respondent, Horace P. Green, be revoked upon the petitioners paying the costs of this proceeding and of the proceedings in the Orphans’ .Court of Philadelphia for the revocation of the appointment of the petitioners, or indemnifying him against the same, and' that thereupon his account appended to the answer be confirmed, and he be authorized to pay and transfer to the petitioner, Francis H. Thole, the balance in his hands.”

■ While appellants have assigned error to the entire decree, they do not complain of the first clause 'thereof, revoking appellee’s appointment. Their objections are restricted to the terms and conditions annexed to said revocation, viz: the payment of all costs, including the costs of appellee’s fruitless litigation in the Orphans’ Court of Philadelphia or his indemnification against the payment of the latter, and the confirmation of the account which he voluntarily appended to his answer in this proceeding, and in which he claims-credit for $150 counsel fees, $100 to his surety as guardian, etc.

■ There appears to be nothing in the facts or circumstances of the case, as disclosed by the record, to justify either of said terms and conditions. The appellants were entitled to an unqualified revocation of appellee’s appointment. Before the latter undertook .to act he was fully aware that the Orphans’ Court of Philadelphia, upon the petition of the minor’s paternal grandfather, had assumed jurisdiction and appointed guardians of his person-and estate respectively. With-full knowledge of these facts, he asserted jurisdiction of the court that appointed him and denied the jurisdiction of-.the Orphans’. Court of Philadelphia. By presenting his petition to that court, he submitted himself to its jurisdiction; and -for the purpose of this ease the decree of that court, unappealed from, must be regarded as conclusive of the question of jurisdiction.

We are not aware of any rule that in such circumstances would justify the imposition -of costs upon successful contestees, or warrant the unsuccessful contestant in claiming to be indemnified against the payment thereof. As to the costs incurred in the Orphans’ Court of Philadelphia, the jurisdiction of that court is primarily exclusive. We are, therefore of opinion that all the terms and conditions annexed to the decree revoking appellee’s appointment were unauthorized.

So much of the decree as revokes and .annuls the appointment of appellee, as guardian of the person and estate of said minor, is affirmed, and the residue of said decree is reversed and set aside, with costs to be paid by the appellee.