P. L. 9S. Decree. 23 Feb. 1853 § 1. from the lien and charge of such annuities and legacies, or of either of them, having due regard to the absolute and ultimate security of such annuities and legacies; and upon such report being made, and due notice thereof having been given to all persons interested, it shall be lawful for the court to make a decree in the premises, and if it shall appear that all the debts of the testator have been paid or sufficiently secured, the court may order and decree that such part or parts of the residuary real estate,(0) or such real securities or investments in public stocks, shall be set apart or appropriated as, in the judgment of the court, shall appear to be, and with reasonable probability continue to be, adequate and sufficient, beyond all charges, expenses and deductions, for the payment of such annuities and legacies, providing always a sufficient surplus to meet any contingent diminution or depreciation in the value or income of the estate and securities so set apart; and when such decree shall have been made, it shall be further lawful for the court, to order and decree that all the remaining residuary real estate of the testator, not so specifically set apart, shall be and remain discharged and exonerated from the lien and charge of any and every such annuity and legacy in the hands of any bona fide purchaser of such real estate for a valuable consideration, and such decree shall have the force and effect of discharging and exonerating all such real estate accordingly, unless an appeal be taken from such decree to the supreme court within one year after entering of the same:(p) Provided, That nothing herein contained shall be deemed or held to authorize the exoneration of any real estate which may have been or may be specifically charged by a testator with the payment of any annuity or legacy. Effect thereof. Appeal. Ibid. § 2. Executors, &c., to report annually upon the state of the fund. Court to direct payment or investment of surplus in come. Ibid. § 3. Proceedings where becomes extinguished. 272. The real estate, securities and stocks set apart and appropriated by order of the court aforesaid, shall be and continue in the possession, charge and management of the executors, trustees or other persons to whom the same may have been devised by the testator as aforesaid, under and subject to the charge of such annuities and legacies, and it shall be the duty of every such executor, trustee and other person, at the expiration of one year after such decree shall have been made, and at the expiration of every year thereafter, until the termination of such trust, to make report to the court setting forth the situation and circumstances of such estate, securities and stocks, and the annual income therefrom, and the payment thereout; and if, upon such report, it shall appear to the court, that the said income exceeds, in any considerable degree, the amount of the existing annuities and other charges and expenses payable thereout, it shall be lawful for the court to order and decree that such surplus income may be paid over to such persons as may be entitled to the residuary estate under the provisions of the will, or the court may, in their discretion, order and decree that the same be invested in real securities or public stocks, for the further or additional security of such annuities or legatees. 273. Upon the application of any person interested in any residuary estate, set apart as aforesaid, setting forth that by reason of the decease of any such annuiannuity or legacy tant, or by the happening of any other event, the charge of any annuity or legacy as aforesaid has become extinguished, in fact or law, it shall be lawful for the said court, from time to time, after due notice and inquiry into the facts, to make an order and decree for the exoneration and discharge of such part or portion or so much of the real estate, securities and stocks so set apart and appropriated, as may appear to such court to be beyond the amount requisite or proper, for the purpose of providing a sufficient continuing security for the payment of the remaining annuities and legacies; and every such order or decree, unappealed from as aforesaid, shall have the same force and effect in respect to the real estate, securities and stocks therein, and thereby exonerated and discharged, as is declared in the first section of this act, in respect to the residuary real estate not specifically set apart and appropriated. Ibid. § 4. Rights of residuary not to be affected. legatees or devisees 17 April 1869 § 1. P. L. 70. Legatees of contin gent interests in personal property may have account and security. 274. Nothing in this act contained, or in any decree or order that may be made by any orphans' court, by the authority of this act, shall be deemed or held to affect in any way the legal or equitable rights of any person or persons interested in the residuary estate set apart and appropriated as aforesaid, but all such rights to the ultimate enjoyment of such estate shall remain and continue as before the passage of this act. 275. The owner of any contingent interests in the personal property of any decedent may legally require any executor or administrator thereof to make and exhibit, in the register's office, his or her account of the trust, in one year from the time of administration granted, and may require the legatee of any previous interest in the same property, before receiving the same, to give security in the orphans' court having jurisdiction of the account of the executor or administrator of the decedent, in such sum and form as in the judgment of such court shall be sufficient to secure said contingent interest, whenever the same may accrue or vest. (q) (0) The court can only charge the annuity on a portion of the testator's estate; not on other property of the petitioners. McCreedy's Estate, 3 Brewst. 200. See s. c. W. N. C. 578. Mullen's Estate, 14 Ibid. 144. (p) An appeal lies only when the decree is in favor of the petitioner; there is no appeal from a refusal to 268. XVII. Of the removal and discharge of executors, &c. (1.) Discharge of executors, &c. 276. An executor or administrator may, with the leave of the orphans' court 29 March 1832 § 21. having jurisdiction, make a settlement of his accounts, so far as he shall have P. L. 194. administered the estate committed to him, and the same being confirmed by the Executors, &c., on court, he may be discharged from the duties of his appointment, and surrender settlement of their the remainder of the property in his hands, to such person as the court may discharged. .direct.(r) accounts, may be 277. Whenever one or more of several joint administrators shall die, or be dis- 2 Feb. 1853 § 1. charged by the proper orphans' court under existing laws, the said court, upon P. L. 31. the application of any party interested, shall have power to discharge from further on death or disliabilities, said discharged or deceased administrator, his, her or their surety or charge of adminissureties, as the case may be, and require new or additional sureties of the remain- trator, his sureties ing administrator or administrators, with a like result in case of failure to comply, and additional seas now provided by law when new or additional surety is, for any cause, required curity required from the remaining by such court: Provided, That such discharge shall not affect liabilities existing at administrators. the time of the discharge of such party or parties. (2.) Removal of executors, &c. may be discharged, P. L. 195. security. 278. Whenever it shall be made to appear to the orphans' court having juris- 29 March 1882 § 22. diction of the accounts of any executor, administrator or guardian, or to any judge thereof, when such court shall not be in (any) session, on the oath or Delinquent execuaffirmation of any person interested, that such executor, administrator or guardian tors, &c., may be is wasting or misplacing the estate or property under his charge, (s) or is like required to give to prove insolvent, or has neglected or refused to exhibit true and perfect inven- Proceedings in tories, or render full and just accounts of such estate or property, come to his such cases. hands or knowledge, then and in every such case (t) it shall be lawful for such court, or for such judge thereof, to issue a citation to such executor, administrator or guardian, requiring him to appear, on a day certain, before an orphans' court to be convened for such purpose, if the said court shall not then be in session, and the case shall require despatch, and upon the return of such citation, the said court may require such security of such executor, or such other and further security (u) of such administrator or guardian as they may think reasonable, conditioned for the performance of their respective trusts, which security shall be taken in the name of the commonwealth of Pennsylvania and filed in the said orphans' court, and shall be deemed and considered in trust for the benefit of all persons interested in such estate: Provided, That if, in the cases above mentioned, it shall be made to When attachment appear to the said court or any judge thereof, on oath or affirmation as aforesaid, may be issued. that such executor, administrator or guardian is about to remove from this commonwealth, or that the property under his charge may be wasted or materially injured before he can be reached by the ordinary process of the court, it shall be lawful for such court, or such judge thereof, to issue a writ of attachment, under which the same proceedings may take place as in other cases of attachment on mesne process in the orphans' court; and on the return of such attachment, the court may proceed as on the return to the citation above mentioned. Ibid. § 23. removed. 279. If such executor, administrator or guardian shall neglect or refuse to give such security, or such further security, so ordered, then the said court shall vacate On failure to give such letters testamentary or of administration, or remove such guardian, and security, such exaward new letters, to be granted in such form as the case may require, by the regis- ecutor, &c., to be ter having jurisdiction, upon such security as the court shall think proper; (v) and in the case of a guardian, the court shall proceed to the admission or the appointment of a new guardian, according to the circumstances of the case; and the said And to surrender court shall moreover order the first executor, administrator or guardian to deliver the estate to his over and pay to his successor all and every the goods, chattels and estates in his hands, of the decedent or minor, as the case may be. (w) successor. Ibid. § 24. 280. If such superseded executor, administrator or guardian shall neglect or refuse to comply with the order of the court in the premises, the court may proceed Proceedings to enagainst him by attachment, with or without sequestration, or may issue process for force decree the delivery of the trust-property and effects, as is hereinafter provided; or the executor, &c. (r) Wiseman's Estate, 4 W. N.C.59. If some of the distributees refuse to receive the amounts awarded to them, the administrator may be discharged, on payment of the fund into court. Gready's Estate, 14 Phila. 259. See Commonwealth v. Smith, 4 Phila. 270, as to the effect of a discharge of one of several administrators. (s) See Commonwealth v. Fiegle, 2 Phila. 215. Greene's Appeal, 3 Brewst. 427. Parson's Appeal, 82 P. S. 465. Weigel's Estate, 4 W. N. C. 92. (t) The court cannot dismiss an executor, or require him to give security, except for the causes against superseded P. L. 195. 29 March 1882 § 24. successor may proceed at law against him and his sureties, if any there be, or against any other person who may be possessed of any goods or chattels belonging to the estate of the decedent or minor, as the case may be, or be indebted to him; or the remedies by execution and suit at law may be pursued at the same time, if the case so require, until the end be fully attained.(x) Ibid. § 25. Executrix marry ing without secur ing the portion of her minor children, to be required to give security. In default to be removed. Ibid. § 26. Executor, &c., de clared a lunatic or habitual drunkard to be removed. Ibid. § 27. Executor, &c., re state, &c., to be discharged. 281. Whenever it shall be made to appear to the satisfaction of the orphans' court having jurisdiction as aforesaid, or of any judge thereof, when such court shall not be in session, that an executrix, having minors of her own, or being concerned for others, is married or like to be espoused to another husband, without securing the minors' portions, or real estates, it shall be lawful for such court, or for such judge thereof, to issue a citation to such executrix, or if she shall have been married to another husband, then to her and such husband, requiring her or them, as the case may be, to appear on a day certain, before an orphans' court, to be convened for such purpose, if the said court shall not then be in session, as is hereinbefore provided for in the case of delinquent executors, administrators or guardians, and on the return of such citation, the said court may require such security to be given by such executrix, or by her husband, if she shall have been married again, as the circumstances of the case may require; and if such executrix, or her husband, as aforesaid, shall fail or refuse to give such security, it shall be lawful for the said court to vacate the letters testamentary, and to award new letters, to be granted by the register having jurisdiction, on such security as they may think proper. 282. When any executor, administrator or guardian shall have been duly declared a lunatic or an habitual drunkard, (y) it shall be lawful for the orphans' court having jurisdiction over the accounts of such executor, administrator or guardian, to vacate the letters testamentary or of administration granted to such executor or administrator, and to remove such guardian, and to award new letters, to be granted in such form as the case may require, by the register having jurisdiction, upon such security as the court shall think proper; and in the case of a guardian, the court shall proceed to the admission or appointment of a new guardian accordingly; and the court shall also make such order, for the security of the trust-property, and for its delivery to the successor of such executor, administrator or guardian, as the circumstances of the case may require. 283. When any executor, administrator or guardian shall have removed from this state,(z) or shall have ceased to have any known place of residence therein, moving from the during the period of one year or more, the orphans' court having jurisdiction of the account of such executor, administrator or guardian, may, on the application of any person interested, and after a citation shall have been returned, served or published, as is hereinafter provided, (a) make a decree vacating such letters testamentary or of administration, and remove such guardian, and award new letters, to be granted in such form as the case may require, by the register having jurisdiction, upon such security as the court shall think proper; and in the case of a guardian, the court shall proceed to the admission or appointment of another guardian accordingly: Provided, That no decree as aforesaid, shall suspend the power, or prejudice the acts of any person who may be joined with such executor, administrator or guardian in the trust. Rights of co-executor, &c., not to be affected. Ibid. § 28. When sureties of executors, &c., may require counter-security for their protection. In default, the estate to be delivered to such surety, on his giving security. 25 April 1850 § 1. P. L. 569. All executrices marrying may be required to give security. 284. Application may be made to the orphans' court, or any judge thereof, in the cases mentioned in the 23d (22d) section of this act, (b) by any surety in the bond of such executor, administrator or guardian, and upon such surety making oath or affirmation, as required in that section, the like proceedings may be had, for the purpose of compelling such executor, administrator or guardian to give security, and thereupon the court may order such executor, administrator or guardian to give such counter-securities as they shall judge necessary to indemnify him against loss by reason of his suretyship: and if such executor, administrator or guardian shall refuse or fail to give such security, within such reasonable time as the court shall order, it shall be lawful for the court to direct such executor, administrator or guardian, to pay or deliver over forthwith to such surety, or to some other person for him, all goods, chattels, effects and securities whatsoever, for which such surety may be accountable: Provided, That such surety shall first give to the satisfaction of the court, sufficient security, faithfully to preserve and account therefor, and deliver and dispose of the same according to the order of the said court. 285. The provisions of the 25th section of the act of assembly of March 29, 1832, (c) entitled "An act relating to orphans' courts," which requires executrices, in certain cases, to give security, shall be construed to embrace all cases therein specified, whether there are minors concerned in the estate or not, and whether she is sole executrix or otherwise. (2) A superseded executor still remains liable to creditors. Thomas v. Riegel, 5 R. 266, 281. (y) A person, found by inquisition to be an habitual drunkard, is not thereby deprived of the power to perform the office of executor. Sill v. McKnight, 7 W. & S. 244. (z) See Sarkie's Appeal, 2 P. S. 157. (a) It is error, to vacate letters of administration without such notice. Hostetter's Appeal, 6 W. 244. (b) Supra 278. (c) Supra 281. in the first Jurisdiction and 286. Whenever it shall be made to appear to the proper court having jurisdic- 1 May 1861 § 1. tion of the accounts of any executor, administrator, guardian, committee of a P. L. 650. lunatic or of an habitual drunkard, or other trustee, on the oath or affirmation of For what causes any person interested, that such executor, administrator, guardian, committee or executors, &c., trustee is wasting or mismanaging the property or estate under his charge, or that, may be dismissed, for any reason, the interests of the estate or property are likely to be jeopardized instance. by the continuance of any such executor, administrator, guardian, committee or trustee, or when such executor, administrator, guardian, committee or trustee is or is likely to prove insolvent, or has neglected to exhibit true and perfect inventories, or render full and just accounts of such estate or property, come to his hands or knowledge, according to law, 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, guardian, committee or trustee, requiring him to proceedings. appear on a day certain, to answer the charge so preferred as aforesaid, and shall make all such necessary rules and orders, as the said court, or the said president judge thereof, may deem right, for bringing the matter complained of to a hearing; and if, on the hearing, the said court, or the said president judge and one associate judge, in vacation, shall be satisfied of the truth of the matters charged, the said court, or the said judges in vacation, if the case shall require despatch, may, in their discretion, instead of requiring the security provided for in the 22d section of the act of the general assembly of this commonwealth, passed the 29th of March 1832, (d) vacate the letters of administration or testamentary, or commission, and remove such administrator, executor, guardian, committee or trustee, (e) and award new letters or commission, 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; and shall moreover order and compel such executor, administrator, guardian, committee or trustee, to deliver over and pay to his successor all and every the goods, chattels and property, money, estate or effects in his hands as aforesaid. 287. Whenever any sole executor, administrator, guardian, committee or trustee Ibid. § 2. may be dismissed shall become incompetent to discharge the duties of their respective trusts, by Executors, &c., reason of sickness or other visitation, and it shall appear to the satisfaction of the court having jurisdiction of their accounts, that such incompetency is likely to in cases of discontinue, to the injury of the estates under their control, it shall be lawful for such ability. court to make a decree vacating the letters testamentary or of administration granted to such executor or administrator, or revoking the appointment of such guardian, committee or trustee; after which new letters shall be granted and appointments made, in the same manner as in other cases of vacancy in such trusts. XVIII. Of testamentary trustees.(g) 288. In all cases where any trustee or trustees, created or vested with authority, 22 April 1846 § 1. by the last will and testament of any deceased person, or any writing testamentary P. L. 483. in the nature of a will, shall die, resign or be otherwise removed from the trust, Orphans' court the orphans' court of the proper county shall have power and authority to appoint may supply vaanother trustee or trustees, to supply the vacancy occasioned by such death, resig- cancy in office of testamentary nation or removal, (h) and shall require security for the faithful performance of the trustee. trust; and the said courts are hereby invested with power to dismiss all executors, administrators or guardians of estates held by testamentary trust, in cases of waste (d) Supra 278. (e) Under this act, a guardian can be removed, without previously requiring security. Green's Estate, 3 Brews. 427. Where one executor is insolvent, and the acts of the other are of a suspicious character, the court will dismiss them both. Greentree's Estate, 3 W. N. C. 519. Halloway's Appeal, Ibid. 556. Edward's Estate, 5 Ibid. 431. Where the executor and the heirs have adverse interests and their relations are not harmonious, the court has a discretion to remove the executor. Dayton's Estate, 1 Kulp 118. So, an indebtedness to the estate and unfriendly relations with the co-executor will warrant dismissal. Silverman's Estate, 14 W. N. C. 259. Where an administratrix has omitted to file a complete inventory, and has otherwise wilfully failed to perform her duties, she will be removed; it appearing that one of her sureties is insolvent. Brophy's Estate, 34 L. I. 240. See Killberg's Appeal, 86 P. S. 129. A refusal by an executor to permit the inspection by an heir, of the title deeds, is good ground for removal. Tompkin's Estate, 6 Kulp 99. An executor should not be removed without a citation. Van Dusen's Appeal, 102 P. S. 224. He will not be dismissed for acts done in good faith under the advice of counsel. Loxley's Estate, 38 L. I. 276. Nor for an error of judgment on a doubtful question of practice, or a mistake as to his legal rights. Gray's Estate, 4 Kulp 157. See Bradley's Estate, 42 L. I. 101. Our courts cannot dismiss an executor appointed in another jurisdiction, who has taken out ancillary letters here. Mackin's Estate, 11 W. N. C. 207. An executor will not be removed for a mere disagreement between himself and a co-executor. Morgan's Estate, 26 W. N. C. 236. Nor will an administratrix be removed because she has given a stranger an irrevocable power of attorney to act for her in the settlement of the estate. Johnston's Appeal, 11 Atlan. 78. The removal of an executor who has moved out of the state is discretionary with the court. Grotz's Estate, 1 Northam. 96. (g) See tit. "Trustees." Where a testator appoints a person, by name, to execute a trust created by his will, and then makes the same person his executor, the trust is not annexed to his office as executor. Jones's Appeal, 3 Gr. 169. (h) The court may appoint a successor to a testamentary trustee, where it is a distinct and collateral trust, and can be exercised independently of the executorship. Anderson v. Henszey, 9 Phila. 14. See Shoemaker's Appeal, 91 P. S. 134. A trustee appointed to fill a vacancy may exercise a general power of sale over the residuary estate. Cresson v. Ferree, 70 P. S. 446. 22 April 1846 § 1. or mismanagement, coming within the provisions of the 22d section of the act of 29th March 1832, relative to orphans' courts.(i) P. L. 483. 10 April 1849 § 2. P. L. 597. mentary trustee, his consent. 289. Whenever, by the provisions of any last will and testament admitted to probate in the city and county of Philadelphia,(k) a trust has been or shall be Court may supply declared of and concerning any real or personal estate to be executed by the the place of a testa- executor or executors of said last will, whether by virtue of their office or otheralthough there be Wise, and any of the said executors shall die, renounce, resign, be dismissed from a co-executor, with or refuse to act in the said trust, leaving the other executor or executors continuing therein, it shall be lawful for the orphans' court of the city and county of Philadelphia, on the application of any party in interest, and with the consent of such continuing executor or executors, with notice to such of the other parties in interest as the said court may deem material, to appoint a trustee or trustees in the place of the executors so dying, renouncing, resigning, dismissed or refusing to act; which said trustee or trustees shall have the same power and interest over and in the premises in trust, as the executor or executors in whose stead he or they shall be so appointed as aforesaid; and it shall also be lawful for the said court to appoint a successor or successors to such trustee or trustees, from time to time, whenever from death, resignation or otherwise, the same shall be necessary or expedient. 7 April 1859 § 1. P. L. 406. 290. The orphans' court of the several counties of this commonwealth shall have full power and authority, in all cases of trusts derived under, or created by any last will and testament, whether vested in executors, administrators with the may dismiss testa- will annexed, or any other trustee or trustees, to dismiss from such office or trust, Orphans' courts mentary trustees for misbehavior. And enforce de any and all such trustee or trustees as aforesaid, whenever such courts shall be satisfied that there has been waste or mismanagement in the administration of such trust, or whenever the said trustee or trustees shall fail or neglect to pay over the principal or income of the trust-funds, according to their duty under their several trusts, or fail or neglect to comply with any order or direction of the said courts made in relation to said trust; and shall further have power to make all such livery of the trust orders for the surrender and delivery of the funds, securities, moneys, books, acproperty, &c. counts or papers belonging or relating to said trusts, to such person or persons as such courts may appoint to receive the same, and to enforce obedience to such orders by attachment, execution or otherwise, as to them shall seem necessary and proper for the due protection of the rights and interests of any and all parties interested under such trusts. 13 April 1859 § 1. P. L. 611. Executors may renounce testamentary trust. Several trustees may be appointed. 23 April 1864 § 1. P. L. 550. 291. In all cases of trusts created by will, and annexed to the office of executor, he may decline to accept the trust, or be discharged therefrom,(1) without affecting his office of executor, and the orphans' court of the proper county shall have power to fill the vacancy by appointment; and if a trust-fund or estate is committed to an executor or other trustee, in which several cestuis que trust have or are entitled to enjoy a separate interest, and a vacancy should in any manner occur in the office of the trustee thereof, the said courts may appoint one or more trustees of such estate or fund, for each of the said cestuis que trust, on his or her application; and the said trustee shall give security as is provided by existing laws. 292. The provisions of the 2d section of the act of April 10th, Anno Domini 1849, (m) entitled "An act relative to sheriff's sales, and the appointment of trustees in the county of Philadelphia, et cetera,” be and the same are hereby extended to the several counties of this commonwealth. (i) Supra 249. The orphans' court has jurisdiction to compel a settlement of the account of a testamentary trustee, under the provisions of the 4th section of the act 29 March 1832. Wimmer's Appeal, 1 Wh. 96. (k) Extended throughout the commonwealth, by act 23 April 1864, infra 292. (7) An application for the discharge of the petitioner as trustee under the will, and as testamentary guardian, should not be joined with a proceeding for discharge as executor; they must be made the subjects of separate applications. Morrow's Estate, 41 L. I. 428. (m) Supra 289. |