Frey's Estate , 237 Pa. 269 ( 1912 )

Opinion by

Mr. Justice Brown,

In asking that this appeal be quashed, counsel for appellees seem to think that it is from the decree directing an account to be filed by the testamentary trustee of the appellant. If it were from that decree, and the appellant had been heard in the proceedings in the court below leading up to it, the motion to quash would have to prevail, for a decree citing an executor or testamentary trustee to file an account is interlocutory, from Avhich no appeal lies: Palethorp’s Est., 160 Pa. 316. The appeal is not from the decree to file the account, but from the refusal to allow the appellant to intervene in the proceedings instituted to compel her trustee to file it. To her petition, asking leave to intervene and show cause why an account should not be filed at the instance of the appellees, no answer was filed, and its averments are, therefore, to be taken as true. One of them is that, through losses not chargeable to the trustee, the principal of the trust fund has-been reduced and the loss is to be made up from the income. If the appellant had been permitted to intervene, she might have been able to show that, before she became insolvent, she and her trustee entered into an agreement, in the face of which her trustees in bankruptcy have no right to ask for an account at this time, if at all; but her petition to be heard was denied and her trustee has been ordered to file an account, the costs and expenses of which will come out of the income provided for her by her father. She was directly interested and clearly had a right to be heard in the citation proceedings against her trustee, and, if the decree denying her a hearing as an intervenor has done her a wrong for which she now has no remedy, it was final as to her, and she has a right to be heard on appeal from it. How is she now to be relieved from the costs and expenses of filing the account, if it ought not to have been filed, unless she is heard on this appeal? She was given no opportunity to show cause why it should not be filed, and it is too late for her to do so now, if she has been wronged by it. She, as well as the trustee, ought to have been heard. The decree as to him is but interlocutory, and, on appeal from the decree finally confirming his account, he can renew his objections to being compelled to file it, and he will be heard; but not so with the appellant, to whom no opportunity was given to be heard why it should not be filed.

While, as a rule, an appeal will not lie from an order refusing leave to intervene, because such order is not a final one, cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final order or decree as to the petitioner: Henry v. Travelers’ Insurance Company, 16 Colo. 179; Credits Commutation Company v. United States, 91 Fed. Repr. 570. The order denying the appellant the right to intervene was, as to bet, in tbe face of ber unanswered petition, final, and, as sbe should bave been permitted to intervene, tbe decree of tbe. court below is reversed and tbe record remitted, with direction that sbe be made a co-respondent with ber testamentary trustee in tbe citation proceedings, tbe costs on this appeal to be paid by tbe appellees.