Harberger's Appeal

98 Pa. 29, 1881 Pa. LEXIS 120

• Court: Supreme Court of Pennsylvania
• Decided: June 13, 1881
• Status: Published

Opinion

Mr. Justice Gordon

delivered the opinion of the court,

The appellant’s right to letters testamentary was received, not from any act of the legislature, but from the will of his mother, Mrs. Harberger, and to these letters he was entitled without regard to his pecuniary circumstances.

As his mother had a right to devise to him the whole of her property, had she been so disposed, so had she the right to commit to him the charge of it, in whole or in part, as to herself might seem proper; and this right no one can be permitted to call in question.

It is only after letters have been committed to an executor that the Acts of 29th March 1832, and of May 1st 1861, become operative, and until that time the Orphans’ Court had no jurisdiction, either to control the issuing of letters to him, or to compel him to give bail.'

After that time, for any of the causes specified in the act, and for none other, the court may dismiss him or require sureties for the proper administration of the estate committed to his charge: Cohen’s Appeal, 2 Watts 175; Webb v. Dietrich, 7 W. & S. 401.

Whilst, therefore, the Court below did that which was proper in refusing to vacate the letters testamentary, issued by the register to the appellant, Louis B. Iiarberger, it did wrong in imposing upon him the giving of a bond conditioned for the faithful performance of liis duties as executor.

Such an order can only be imposed upon one “ not being an inhabitant of this commonwealth,” who claims the right to act as executor, but not upon one merely resident in a different county from that from the register’s office of which the letters testamentary must issue. If the executor indicated by the will' be an inhabitant of the state he is relieved from the necessity of giving a bond; for this reason, the decree of the Orphans’ Court must be reversed.

It is now ordered and decreed that that part of the decree of the Orphans’ Court requiring Louis B. Iiarberger to give an approved bond in the sum of $25,000, be reversed and set aside, and that that part of said decree which directs the register to issue letters testamentary to the said Iiarberger be affirmed. And it is further ordered, that the appellee pay the costs of this appeal.