Henry's Estate , 54 Pa. Super. 274 ( 1913 )

Opinion by

Henderson, J.,

The petitioner is the sole devisee and legatee under the will of Silas Clark Henry. The appellant was appointed executor and letters testamentary were duly issued to him after the will was probated. The reasons suggested for his removal were that he is not a resident of the state of Pennsylvania, and did not qualify by filing a bond and obtaining leave of court to take out letters, and that he holds an account against the estate a large part of which is disputed. As set forth in the executor’s petition for the sale of real estate the personal property amounted to $708.88, the estimated value of the real estate was $2,700 and the indebtedness, $2,873.12. About two-thirds of the latter amount consists of claims.of the appellant. The beneficiary under the will contests a large part of this account. The executor stands, as a litigant party therefore, and his interests are hostile to those of the devisee. Under such circumstances there is a propriety in the action of the court in entering the order appealed from: Ellmaker’s Est., 4 Watts, 34; Kellberg’s App., 86 Pa. 129; Sharpless’ Est., 209 Pa. 69; Hill v. Whiteside, 237 Pa. 340.

The respondent did not file an answer to the petition but presented a motion to dismiss on the ground that the orphans’ court was without jurisdiction to remove-an executor, and this was the principal contention of the appellant at the argument in this court. We think it clear that under sec. 19 of the Act of June 16, 1836, P. L. 784, and the first section of the Act of May 1, 1861, P. L. 680, that court is vested with authority to remove an executor. The latter act gives express authority to remove where “for any reason interests of the estate or property are likely to be jeopardized by the continuance of any such executor.” It hardly requires an argument to demonstrate that an executor who has disputed claims against an estate for substantially all of the property does not occupy that disinterested attitude necessary to insure a just administration of the trust. The objection is not that the party interested will misappropriate the fund but that his position is such that the cause of justice would not be as certainly subserved under the circumstances. No reflection is made against the personal integrity of the appellant nor is there any allegation that up to this time anything has been done which violated the trust reposed in him as executor, but the policy of the law is against the practice of committing the administration of a trust to one whose interests are hostile to the beneficiaries under the trust, and whose interest it would be to administer it to the prejudice of such beneficiaries. ' It is unnecessary to enlarge on the subject. The learned judge of the orphans’ court has fully covered the case in his opinion.

The order is affirmed.