Ingles's Estate

Mr. Justice Sharswood

delivered the opinion of the court, November 2d 1874.

It is very plain that the testator in directing his executors to employ Joseph Kerr, architect (if living at the time) to draw the plan of the monument, which by his will he ordered to be erected over his remains, intended to intrust to that gentleman to determine the size and style of such monument, except that it was to be of Italian marble with a granite base twenty inches thick, and to be in the Gothic order. The architect has drawn a plan, and he testifies that he believes it to be just such a monument as to masonry and workmanship as the testator would have approved, if he had seen the specifications. It is objected, however, that according to-the estimate, it will only cost thirty-five hundred dollars, whereas the provision of the will is, that the “ cost thereof with the granite base aforesaid to be five thousand dollars or thereabouts.” The testator has not directed that it shall cost five thousand dollars or not less than that sum, but he evidently meant that the architect should have a discretion up to that amount or thereabouts. No question is made, but that Mr. Kerr has with good faith exercised the power and discretion thus vested in him. Where this is the ease, no pretence of an abuse of it shown, no court has the authority to interfere and control the exercise of it. It would be for the court to substitute its own discretion for that of the donee of the power: Williams’s Appeal, 23 P. F. Smith 249.

But the testator also directed that his burial lot be fenced in with a wrought or cast iron railing, painted. It seems from the evidence of Mr. Kerr, that an additional sum of five hundred dollars would be required for that purpose. But that evidence was given with reference to a different plan then in the mind of the architect, and the plan finally adopted by him may require a different style and more expensive railing.

It does not appear from Mr. Kerr’s evidence whether he included the cost of the railing in his estimated expense of the monument. A sufficient sum should be set aside and remain in the hands of the executors to meet all contingencies. The most careful estimates of architects and builders often fall far short of the actual cost. We deem it the true course, under all circumstances, that the sum of five thousand dollars should remain in the hands of the executors until the monument and surrounding railings are finished and paid for.

Decree reversed and record remitted that a decree be there made in conformity to this opinion. The costs of this appeal to be paid from the estate.