Kenin's Trust Estate (No. 2)

23 A.2d 846, 343 Pa. 567, 1942 Pa. LEXIS 314

Opinion

Opinion by

Mr. Justice Maxey,

This appeal should be considered in connection with the appeal of The Pennsylvania Company for Insurances on Lives and Granting Annuities, Trustee under deed of Nucom Kenin, in which appeal we have this day handed down our decision. The question involved in this appeal is as follows: In a case arising upon the audit of the account of the Trustee under an Insurance Deed of Trust, where counsel for a creditor succeeded in having the trust set aside and the fund, awarded to the executors of an insolvent estate for distribution to creditors generally, such litigation having been vigorously contested over a period of several years, should a counsel fee be allowed out of the fund to attorneys for the prosecuting creditor as compensation for creating the fund for the benefit of all creditors, in the present proceeding?

In answering tliis question in tlie negative tbe court below, in an opinion by Judge Stearns, said: “As to the claim of counsel for exceptant creditor for compensation for creating an additional fund for tbe estate of decedent, we agree with the Auditor that such a claim is a matter to be presented at the audit of tbe executors’ account, and is not presently before us. This claim is rejected, without prejudice, as above indicated.” We agree with this.

Tbe decree is affirmed at appellant’s cost.