Ruddy's Estate

Opinion by

Rice, P. J.,

This is an appeal by Mary Nallin O’Malley, a legatee under the will of Elizabeth Ruddy, deceased, from a decree of the orphans’ court dismissing her appeal from an order of the register of wills refusing and dismissing her petition for the appointment of an administrator de bonis non cum testamento annexo of the estate of Elizabeth Ruddy. At the foundation of the proceedings is the petition of the appellant which was addressed to the register. It set forth that Elizabeth Ruddy died on a date named, leaving a will, a copy of which was attached to the petition; that by the will a legacy of $500 was left to the petitioner, no part of which had been paid; that the executor filed an account which was approved by the court, and thereafter, bút without any notice to the petitioner (the allegation as to want of notice was denied in the answer), was discharged; and that the petitioner was informed that the other bequests and devises had been carried out, but that nothing had been paid to her. The petition did not allege that any assets of the estate had been discovered after the executor filed his account, nor that the estate had not been fully administered, nor that there were any moneys, goods or assets remaining in his hands due to and belonging to the testator’s estate, nor that any promises had been made to him in his representative character upon which an action would lie, nor that any judgment obtained by or in the name of the executor remained unsatisfied. What occasion then was there for the appointment of an administrator de bonis non? Doubtless, if the register had made the appointment, it could not be attacked collaterally. But the question here is not, whether it would be void for want of jurisdiction, but whether under the circumstances his action in refusing to make the appointment was erroneous and injurious to the petitioner. Counsel say that if this appeal is sustained, they propose to ask for the enforcement of the petitioner’s legacy by proceeding against the new administrator. But this seems to be a very unsatisfactory answer, unless more can be shown than is alleged in the petition, and looking at the case from the standpoint of the petition only, we discover no other answer to the question that is satisfactory.- Nor is a different conclusion reached by considering the case in the light of the facts recited in the opinion of the learned judge below, to which we refer for a full discussion of the questions arising out of the provisions of the will and the facts developed on the hearing.

Moreover, it appears that after the register had refused and dismissed her petition, the petitioner instituted another proceeding in the orphans’ court, which had for its object the striking off of the confirmation of the executor’s account, the review of his account and the vacation of the decree discharging him. The fact that the disposition of that proceeding was postponed, upon the application of the appellant, until after the proceeding now under review should be determined, does not furnish a valid reason why, in determining the latter, the court should not consider the nature of the legacies and pass on the question whether the appellant’s legacy was a charge on the land. Nor do we perceive any other reason for questioning the propriety of considering those matters, or for overturning the conclusions relating to them at which the learned judge arrived. We express no opinion upon the questions that have arisen or may arise in the second proceeding above referred to, further than to say that, so far as now appears, it affords protection to any right the appellant is in position to assert. The raising up of a new administration would not put her in any better position, but would be the cause of unnecessary circumlocution and expense. We find no error in the decree appealed from of which the appellant can justly complain.

The decree is affirmed, and the appeal dismissed at the costs of the .appellant.