Perrett's Estate

Opinion by

William W. Porter J.,

The objections to the decree entered by the court below dismissing the administratrix pendente lite are that the court was without jurisdiction; that the decree was without sustaining proofs ; and that the petitioner was without standing.

By the act of May 1, 1861, it is provided that, “ Whenever it shall be made to appear to the proper court having jurisdiction of the accounts of any executor, administrator, .... or other trustee, on the oath or affirmation of any person interested, that such executor, administrator, .... or trustee is wasting or mismanaging the property or estate under his charge, or that, for any reason, the interests of the estate or property are likely to be jeopardized .by continuance of any such executor, administrator, .... or trustee, .... then and in every such case, it shall and may be lawful for such court, or for the said president judge, to issue a citation to such executor, administrator, .... or trustee, requiring him to appear on a day certain, to answer the charge; . . . . and if, on the hearing, the said court shall be satisfied of the truth of the matters charged, the said court .... may, in their discretion, .... vacate the letters of administration, .... and remove such administrator, .... or trustee, and award new letters, .... to be granted by the register or by the court, in such form as the case may require, or appoint some suitable person to discharge such trust, upon such security as the court may require.”

The provisions, thus quoted, are an answer to the objection made by the appellant to the jurisdiction of the orphans’ court in dismissing the administratrix pendente lite, who has, in the opinion of the court, brought herself within the class of cases in which provision is made for a discharge. The duties of an administratrix pendente lite are the conservation of the assets of the decedent’s estate until the end of litigation. The office is included both within the term “administrator” and within the broader term “ trustee ” used in the act. The trust is of a character to bring the trustee within the jurisdiction of the orphans’ court: Kellberg’s Appeal, 86 Pa. 129. The appellant contends that the proceeding is defective because no citation issued. The purpose of a citation being to bring the respondent into court, it is accomplished in this case, inasmuch as the respondent has appeared and made answer. The decree recites that the dismissal is ordered because the administratrix “has deposited money of the estate in her name, and has not kept proper and intelligible accounts in regard to the affairs of the estate.” It is to be observed that the act, above quoted, gives the court, in terms, a discretion in the matter of the removal of an administrator or trustee. We would, therefore, not reverse such an order, unless a clear abuse of discretion were manifest. In the- present case, there is in the testimony that •Which justifies the findings upon which the decree is based. The appellant, by her own testimony, shows that she has commingled the trust funds with her own and that her accounts, (while perhaps intelligible to herself), are not such accounts as should be kept by one having the custody of trust funds.

We have no doubt that the present petitioner has standing as a party in interest, to petition for the removal of the administratrix pendente lite. By the terms of the will, (which was not admitted to probate, but which has been successfully contested), the estate would have passed to tire widow, the administratrix pendente lite. The overthrow of the will produced an apparent intestacy, which'made the petitioner for the discharge a party directly interested. But the widow and administratrix pendente lite has produced another will. This has been offered for probate. Upon it a contest is being made. It is possible that her office of administratrix ceased with the litigation over the first will, except so far as she was bound to account, and that a new administration should have been raised pendente lite when the contest over the second will was begun. Be this as it may, however, where a will has not been admitted to probate and an issue devisavit vel non has been granted, it cannot be said that the parties named in the will have any greater interest in the estate than the heirs at law, or parties interested as against the will, pending the controversy. In a sense, all interests in the estate are contingent. All stand in practically the same relation to the estate. All parties have an interest in the preservation of the estate, pjending the litigation. Were it otherwise, none, save a creditor, would have a standing to call an administrator pendente lite to account and ask for his discharge, though the estate might be in danger of being most wantonly wasted.

The appellant cites to us the act of April 17,1869, providing that the owner of. any contingent interest in the personal property of any decedent may require the filing of an account by the administrator in the orphans’ court. It is argued that this act gives no power to the orphans’ court to discharge an administrator, but only to require the filing of an account. The owner of a contingent interest, for whose protection the act of April 17, 1869 was passed, is one having an interest in an estate under process of administration generally. Here the right is of a party interested in an estate where contest has been made and administration pendente lite raised. It comes within the act of May 1, 1861.

We are of opinion that the objections raised by the present appellant are not well founded and the decree of the court below is, therefore, affirmed.