Long's Estate , 168 Pa. 341 ( 1895 )

Opinion by

Mr. Justice Williams,

Christian Long died in January, 1892, disposing by his last will and testament of an estate estimated at about one half million of dollars. The appellant John L. Barner was named as his executor, and after the death of Long proceeded to make probate of the will and take letters testamentary. In March, 1893, he settled an account, which is described in the petition as a partial account, and which was at that time confirmed nisi. It was finally confirmed early in May. On the 18th day of May the petition of Mabel M. Wade of Alexandria, Va., by her guardian James H. Loh, was presented in the orphans’ court, asking to have the decree of confirmation set aside or opened, and the account re-examined as to several items specified in the petition. A rule to show cause was granted, upon which the appellant came in and made answer distinctly denying the several allegations on which the prayer for relief in the petition rested. No testimony seems to have been taken to dispose of the issues so made, but the rule was taken up for hearing on petition and answer and made absolute generally. The order appealed from is thus seen to be an interlocutory one. It opens-a decree of confirmation upon an application promptly made by one who was a minor when the account was filed, and unrepresented by a guardian or otherwise. No appeal lies from such an order: Jones’ Appeal, 99 Pa. 124. But as we have the papers before us we feel that it is proper for us to speak of the practice in these cases and the course this proceeding ought now to take. The only item among those enumerated as mistaken or erroneous that could be disposed of by the orphans’ court without testimony was that of compensation. A distinct issue of fact was raised by the answer as to the others, and upon this issue the answer must stand until overcome by evidence. The only subject that is open to examination therefore under the order now made by the orphans’ court is that of the compensation to which the executor is entitled for his services between the probate of the will and the filing of his account.

If the petitioner desires to go further than this he must take-up the burden that the answer imposes upon him and satisfy the court by the evidence that he shall produce that such items or some of them should be re-examined; and the order made should state the items as to which the account is opened and a re-examination allowed.

The motion to quash is sustained and the record remitted to the orphans’ court, that further proceedings may be had in accordance with this opinion.