Parsons's Estate , 82 Pa. 465 ( 1876 )

Mr. Justice Sharswood

delivered the opinion of the court, October 30th 1876.

By the provision of the Revised Code of March 29th 1832, Pamph. L. 196, the mode of proceeding in the case of an executor wasting or mismanaging the estate or property under his charge is by a citation, and upon the return of such citation the court may require such security as they may think reasonable, and upon his neglect or refusal to give such security to vacate the letters testa? mentary and award new letters in such form as the case may require. The Act of May 1st 1861, Pamph. L. 680, provides a more summary proceeding to be used at the discretion of the court in place of that authorized by the Act of 1832. It was under this latter act that the proceedings in the court below in this case were instituted and carried on. It is a much more stringent and summary process to remove an executor, and it must clearly appear from the evidence that a case was made out under it, and that the discretion of the court was properly .exercised. It must clearly appear that the executor is “ wasting or mismanaging the property or estate under his charge, or that for any reason the interests of the estate or property are likely to be jeopardized by the continuance of such executor.”

The appellant is the surviving executrix of the will of her deceased husband, James W. Parsons. Under that will she has discretionary power to sell his malt house and any and all other real estate of. the testator. .She is expressly to fix according to her discretion and judgment terms of sale, prices and purchasers. The petitioners below are lien-creditors of the estate. They aver in their petition that all the real estate of the testator is the malt house mentioned in his will; that the liens against it are more than its value; that the interest on the indebtedness is rapidly increasing; that the malt house is fast going to decay, and that the appellant has refused to make a private sale under the power in the will at what they allege to be a full and fair price. Upon the return of the citation and answer filed by the respondent, a commissioner was appointed to take testimony, and the evidence before him was returned and is spread on this record. The court made a decree vacating the letters testamentary and removing the executrix, from which she appealed.

The allegation of the petitioners, that the malt house was fast going to decay, is certainly not supported by the proofs. On the contrary, the weight of the evidence is that it was in a much better state of repair when the petition was presented than when the testator died, and by the existing lease of the premises made by the appellant, provision is made allowing the tenant to expend one thousand dollars of the annual rent in repairs. The other allegations of the petition are substantially sustained.

The question then is whether the refusal by the appellant to execute a power of sale of real estate, vested in her discretion by the terms of the will, is such a wasting, mismanaging or jeopardizing the estate as to justify the court in the decree which they made vacating the letters testamentary and removing her from the trust. We see nothing else, aftér a careful examination of all the evidence, but this ground upon which the court could have proceeded. The fact of her having at first agreed, at the solicitation of the creditors, to make a sale under the will at a certain price, upon their advancing a sum of money to pay other creditors, and their making such advance and her afterwards insisting upon another sum of money, even though she meant such further sum as a bonus to herself, for which, however, it is clear she would have had to account as executrix, have no material bearing upon the case. Nor can speculation upon- the probable rise or fall in the market value of the property affect the question. She may be entirely wrong-in the idea that the longer she can manage to prevent the sale of the malt house the higher will be the price obtained and the greater the advantage to all persons interested in the estate. The fact that the rents and profits, in the meantime, do not go to the creditors, but belong to the devisees, is a conclusion of law, and is not imputable to her. All these considerations are to be weighed by the appellant in the exercise of the discretion confided to her. We see nothing in it all to show any unfaithfulness to her trust, nor any wasting, mismanaging or jeopardizing the estate. The creditors who deem their interest injuriously affected by any unreasonable delay in the sale of real estate for the payment of debts, have their remedies either by proceedings at law upon their claim and compelling a sale by execution or under the 31st section of the Act of 29th March 1832 (Pamph. L. 198), by an order of the Orphans’ Court. That would not be a sale under the power in the will, but a judicial sale for the payment of debts. It is plain then, we think, under this evidence, that there is nothing to convict the appellant of wasting or mismanaging the property under her charge or of jeopardizing the interests of the estate, and the court below ought not to have vacated her letters, but to have left the petitioning creditors to their appropriate remedies.

Decree reversed; the costs below and the costs of this appeal to be paid by the appellees.