Estate of Kennedy ( 1891 )

Per Curiam:

This is a small case, so far as the amount in controversy is concerned, and a close one upon the law. It involves merely a fee of fifty dollars to the counsel for the exceptant, and a charge of §15.25 for a copy of the account. Both were allowed by the court below, and under the peculiar circumstances of the case we have concluded to affirm the decree. The court held that the investigation was proper, if not necessary, and that it was for the benefit of all the beneficiaries, and not of the appellee alone. The request for information contained in the letter of the appellee to one of the trustees, dated June 8,1889, was proper in substance and courteous in form. The trustee referred her to the actuary of the estate. A proper letter, addressed to him for the information, was met with a flat refusal. This proceeding naturally followed, and, for anything that appears upon the record, was the only means by which the information could have been obtained as to the condition of the estate.

We are of opinion, therefore, that the decree should be affirmed upon the peculiar facts stated in the opinion of the court below. At the same time it must not be drawn into a precedent for the broad doctrine that, where exceptions are filed to the account of an executor, administrator, or trustee, in the Orphans’ Court, the exceptant is entitled to an allowance for counsel fees out of the fund. The rule in such cases is that the exceptant must pay his own counsel. That it was not regarded as a precedent by the court below, appears by the following well-considered language of the learned judge who delivered the opinion:

“ There is no danger of it being considered a precedent attended with prejudice to parties interested in estates, for that is always a subject within the control of the court. The parties now complaining are not and cannot be prejudiced by the conclusion reached, for the reason that the account, as prepared under the direction of the auditing judge, furnishes them with that information of the condition and assets of the estate to which they are entitled and which they would not otherwise have been able to gather from the account as originally filed.”

Decree affirmed, and the appeal dismissed, at the costs of the appellants.