Opinion by
Mb. Justice Elkin,
These two appeals have been argued and will be considered together. The first is from the decree removing appellant from his office as executor, and the second is from a later decree, which in order to avoid an attachment for contempt, required the removed executor to deliver and pay over to his successor, all of the unadministered assets, without first giving him an opportunity to file his account as executor and of having it audited in an orderly and proper manner. Both appeals grow out of the same proceeding and may very properly be considered together. As to the removal of appellant as executor it is earnestly contended that the proceedings were irregular and in violation of the statutes as well as of the rules of pleading and practice in such cases. The proceedings may be fairly criticised as being irregular, certainly out of the ordinary in dealing with such matters, but we cannot agree that they were in violation of any statute. The controversy is between those representing the next of kin of the testatrix and her executor who for many years had been her counsel and business adviser. An appeal from the pro[564]*564bate of the will was pending when the petition which is the foundation of the present appeals was presented. After the appeal had been taken from the probate of the will, application was made for an issue devisavit vel non. While the appeal from the probate of the will and the application for an issue devisavit vel non were pending in the orphans’ court, one of the contestants presented his petition asking for the appointment of an administrator pendente lite. The ground for asking such an appointment was that the executor, who was also a beneficiary under the will, would have an unfair advantage as the legal representative of the estate in a contest involving the validity of the will itself. It will thus be seen that there were pending in the court at this stage of the proceedings, an appeal from the probate of the will, an application for an issue devisavit vel non and a petition asking for the appointment of an administrator pendente lite. The court did not make any decree relating to the appointment of an administrator pendente lite, but ordered all matters relating to these issues to be heard together and required duplicate copies of the notes of testimony to be transcribed in order that a copy could be filed ;.in each proceeding. This is one ground of complaint. Appellant contends that this confusion of issues made it difficult, if not impossible, to make his defense in a regular and orderly manner. If the facts warranted it, the appointment of an administrator pen-dente lite should have been made while the appeal from the probate was pending, and .not after that issue had been determined in favor of the proponents of the will. The very purpose for asking that such an appointment be made is to have the estate protected by a disinterested person while the matters in dispute are in litigation. The validity of the will was attacked and this was the issue between the parties. The appointment of an administrator pendente lite was only incidental to the real question involved. As it turns out, after taking several hundred pages of testimony on all the issues thus blended, the court dismissed the appeal from the probate of the will, refused the appli[565]*565cation for an issue devisavit vel non, thus sustaining the will, the real question in controversy, and then peremptorily ordered the removal of the executor which had not even been asked when the original petition was presented. It is true that a few days before the decree removing the executor was entered the court directed a motion in writing which had been presented by counsel for the original petitioner, asking for a peremptory order of removal, to be filed as a supplemental petition, and made part of the record in the case. This order was made after all the testimony had been taken, the case closed, the arguments made and the briefs submitted. One of the assignments of error is based upon this order. Standing alone, we would not consider this reversible error. Very great latitude is given the courts in the matter of allowing amendments, in order that the record may conform to the facts. But in allowing such amendments, care should be exercised not to prejudice the rights of the parties upon the merits of the case as presented upon the issues raised by the pleadings. In this connection complaint is made that paragraphs five, six and eleven of the petition asking for the appointment of an administrator pendente lite should have been expunged from the record as being irrelevant, impertinent and scandalous. It was argued in the court below and is contended here that this was an attempt upon the part of the petitioner to obtain in advance information to be used in support of the appeal then pending from the probate of the will. Most of the averments of these paragraphs have no relevancy to questions relating to the duties of appellant as executor, and even if true, did not furnish legal grounds for his removal under the Acts of March 29, 1832, P. L. 190, and May 1, 1861, P. L. 680. If relevant at all, the facts averred in these paragraphs could only be considered as relating to and bearing upon the making and validity of the will, and had nothing to do with the discharge of the duties of the executor under the will. Whether the court attached any importance to these averments in arriving at the conclusion that the ex[566]*566ecutor should be removed because of failure to properly manage the estate, we do not know, nor does the record inform us. Evidently these paragraphs, and such proofs as may . have been offered to sustain them, were by the court deemed insufficient to affect the will, which was sustained. It would seem to necessarily follow that if the proofs of these averments were insufficient to affect the validity of the will, the only purpose for which they were relevant, they should not have been received and considered in connection with a separate and distinct issue to which they had no relevancy. Appellant clearly acted within his legal rights in asking these paragraphs to be éxpunged from the record, and we think it was error to refuse this request. As we view the record on this branch of the case appellant was not given an opportunity during the whole course of the hearing to fairly meet and answer any direct issue involving his peremptory removal as executor. When the appeal from the probate of the will was dismissed and the application for an issue devisavit vel non was refused, the record showed a valid will, duly probated, which controlled the distribution of the estate. By the terms of that will appellant was appointed executor, so that when the attack upon its validity had failed, he stood upon the record as the proper and legal representative of the estate. If the executor appointed by the testatrix to a,dminister her estate according to the provisions of her will is to be removed, and a stranger not of her selection appointed, it should be done.in strict compliance with the law. Certainly under such circumstances the petition asking for the removal should set forth such jurisdictional facts as are required by the acts of 1832 and 1861 to clothe •the court with the power to remove an executor. Appellant had the right to know that the attempt was being made to remove him in order that he could squarely meet that issue.- As we view the record and the pleadings in this case this issue was not squarely raised and appellant did not have the opportunity of directly meeting it. In this there was error.
[567]*567A different question is raised by the second appeal.
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Opinion by
Mb. Justice Elkin,
These two appeals have been argued and will be considered together. The first is from the decree removing appellant from his office as executor, and the second is from a later decree, which in order to avoid an attachment for contempt, required the removed executor to deliver and pay over to his successor, all of the unadministered assets, without first giving him an opportunity to file his account as executor and of having it audited in an orderly and proper manner. Both appeals grow out of the same proceeding and may very properly be considered together. As to the removal of appellant as executor it is earnestly contended that the proceedings were irregular and in violation of the statutes as well as of the rules of pleading and practice in such cases. The proceedings may be fairly criticised as being irregular, certainly out of the ordinary in dealing with such matters, but we cannot agree that they were in violation of any statute. The controversy is between those representing the next of kin of the testatrix and her executor who for many years had been her counsel and business adviser. An appeal from the pro[564]*564bate of the will was pending when the petition which is the foundation of the present appeals was presented. After the appeal had been taken from the probate of the will, application was made for an issue devisavit vel non. While the appeal from the probate of the will and the application for an issue devisavit vel non were pending in the orphans’ court, one of the contestants presented his petition asking for the appointment of an administrator pendente lite. The ground for asking such an appointment was that the executor, who was also a beneficiary under the will, would have an unfair advantage as the legal representative of the estate in a contest involving the validity of the will itself. It will thus be seen that there were pending in the court at this stage of the proceedings, an appeal from the probate of the will, an application for an issue devisavit vel non and a petition asking for the appointment of an administrator pendente lite. The court did not make any decree relating to the appointment of an administrator pendente lite, but ordered all matters relating to these issues to be heard together and required duplicate copies of the notes of testimony to be transcribed in order that a copy could be filed ;.in each proceeding. This is one ground of complaint. Appellant contends that this confusion of issues made it difficult, if not impossible, to make his defense in a regular and orderly manner. If the facts warranted it, the appointment of an administrator pen-dente lite should have been made while the appeal from the probate was pending, and .not after that issue had been determined in favor of the proponents of the will. The very purpose for asking that such an appointment be made is to have the estate protected by a disinterested person while the matters in dispute are in litigation. The validity of the will was attacked and this was the issue between the parties. The appointment of an administrator pendente lite was only incidental to the real question involved. As it turns out, after taking several hundred pages of testimony on all the issues thus blended, the court dismissed the appeal from the probate of the will, refused the appli[565]*565cation for an issue devisavit vel non, thus sustaining the will, the real question in controversy, and then peremptorily ordered the removal of the executor which had not even been asked when the original petition was presented. It is true that a few days before the decree removing the executor was entered the court directed a motion in writing which had been presented by counsel for the original petitioner, asking for a peremptory order of removal, to be filed as a supplemental petition, and made part of the record in the case. This order was made after all the testimony had been taken, the case closed, the arguments made and the briefs submitted. One of the assignments of error is based upon this order. Standing alone, we would not consider this reversible error. Very great latitude is given the courts in the matter of allowing amendments, in order that the record may conform to the facts. But in allowing such amendments, care should be exercised not to prejudice the rights of the parties upon the merits of the case as presented upon the issues raised by the pleadings. In this connection complaint is made that paragraphs five, six and eleven of the petition asking for the appointment of an administrator pendente lite should have been expunged from the record as being irrelevant, impertinent and scandalous. It was argued in the court below and is contended here that this was an attempt upon the part of the petitioner to obtain in advance information to be used in support of the appeal then pending from the probate of the will. Most of the averments of these paragraphs have no relevancy to questions relating to the duties of appellant as executor, and even if true, did not furnish legal grounds for his removal under the Acts of March 29, 1832, P. L. 190, and May 1, 1861, P. L. 680. If relevant at all, the facts averred in these paragraphs could only be considered as relating to and bearing upon the making and validity of the will, and had nothing to do with the discharge of the duties of the executor under the will. Whether the court attached any importance to these averments in arriving at the conclusion that the ex[566]*566ecutor should be removed because of failure to properly manage the estate, we do not know, nor does the record inform us. Evidently these paragraphs, and such proofs as may . have been offered to sustain them, were by the court deemed insufficient to affect the will, which was sustained. It would seem to necessarily follow that if the proofs of these averments were insufficient to affect the validity of the will, the only purpose for which they were relevant, they should not have been received and considered in connection with a separate and distinct issue to which they had no relevancy. Appellant clearly acted within his legal rights in asking these paragraphs to be éxpunged from the record, and we think it was error to refuse this request. As we view the record on this branch of the case appellant was not given an opportunity during the whole course of the hearing to fairly meet and answer any direct issue involving his peremptory removal as executor. When the appeal from the probate of the will was dismissed and the application for an issue devisavit vel non was refused, the record showed a valid will, duly probated, which controlled the distribution of the estate. By the terms of that will appellant was appointed executor, so that when the attack upon its validity had failed, he stood upon the record as the proper and legal representative of the estate. If the executor appointed by the testatrix to a,dminister her estate according to the provisions of her will is to be removed, and a stranger not of her selection appointed, it should be done.in strict compliance with the law. Certainly under such circumstances the petition asking for the removal should set forth such jurisdictional facts as are required by the acts of 1832 and 1861 to clothe •the court with the power to remove an executor. Appellant had the right to know that the attempt was being made to remove him in order that he could squarely meet that issue.- As we view the record and the pleadings in this case this issue was not squarely raised and appellant did not have the opportunity of directly meeting it. In this there was error.
[567]*567A different question is raised by the second appeal. The original decree removing the executor required him to deliver and pay over to the administrator c. t. a. d. b. n. when appointed and qualified, all goods, chattels and property, money, estate or effects, in his hands as executor of the last will and testament of the testatrix. At the time this decree was entered the administrator had not been appointed and no time was definitely fixed to deliver and pay over as required by this order. The securities, papers and other evidences of indebtedness were impounded by order of the court. An appeal was taken from the order of removal and was pending when the attachment proceeding was instituted. In this situation appellant in order to avoid an attachment for contempt was compelled to deliver and pay over to the administrator, who in the meantime had been appointed, all the goods, property, securities and moneys belonging to the estate. From the decree requiring him so to do the second appeal was taken. Appellant contends that the facts of the case did not warrant the exercise of such drastic power and that an injustice was done him in taking out of his hands the entire assets of the estate before he had time to file an account and while his appeal from the order of removal was still pending in the appellate court. In justification of this order appellee points to that portion of the first section of the Act of May 1, 1861, P. L. 680, which gives the court the power to "order and compel sueh executor, administrator, guardian, committee or trustee to deliver over and pay to his successor, all and every the goods, chattels, and property, money, trust or effects, in his hands as aforesaid.” It is argued that the power given by the statute is comprehensive enough to warrant an order to deliver and pay over before there has been an accounting. As a general proposition this view of the powers conferred by the statute may be conceded, but to justify its exercise there must be some impelling necessity. While the statute does confer the power, it is silent as to the time and manner of its exercise. Ordinarily, it is the common and proper prac[568]*568tice to first require the filing of an account in order to definitely ascertain the kind, character and amount of the assets, less such proper credits as the accountant should be allowed in connection with his administration of the estate before compelling him to deliver and pay over the unadministered assets to his successor. This doctrine as applied to administrators de bonis non generally is recognized in Bowman’s App., 62 Pa. 166; Sibbs v. Saving Fund Society, 153 Pa. 345, and Wagner’s Est., 227 Pa. 460. This is the orderly and legal method of definitely determining the liability of a deceased executor, or of a removed executor, and of ascertaining what assets have been administered and what remain unadministered. This course should always be followed unless the exigencies of the case demand an immediate delivery of the assets so that the estate may not be jeopardized. Tome’s App., 50 Pa. 285, is an exception to the general rule. Tome was indicted and convicted for embezzling the funds of the estate, and before his removal as executor the court ordered that he give proper security, which he failed to do. This left the estate in jeopardy, and the court very properly ordered him to deliver and pay over all of the assets to his successor. Nothing of this kind appears in the present case. Appellant was not asked to give security which no doubt he could and would have done. He was not charged with embezzlement and the evidence shows that he was ready to render an account of his administration of the estate. Under these circumstances we see no reason why there should be a departure from the recognized practice in such cases. If for any reason the estate was thought to be in jeopardy, or if it were deemed wise to require security as a protection to those interested, this end could have been more easily reached by requiring the executor to give a bond with sufficient sureties conditioned for the faithful discharge of his duties. This was not done and no reason is suggested why this important step was not taken. We, therefore, hold, under the facts of this case, that the order upon the appellant to deliver and pay over [569]*569all of the assets to his successor before giving him an opportunity to file his account was prematurely made.
The fourth assignment of error relates to the order of the learned court below fixing the amount of the bond in order to make the appeal a supersedeas. The amount of the bond required was $114,000, which under the circumstances appellant contends was unreasonable and excessive. The Act of May 19, 1897, P. L. 67, provides how the appeal from a decree removing a person acting in a fiduciary capacity shall be made a supersedeas. This act provides that if the appellant in such a case deposits in the court below all the assets of the estate which are or should be in his hands and gives bond with sufficient sureties in double the amount of the costs accrued, or likely to accrue, the appeal shall act as a supersedeas. Or, in the event that all of the assets are not deposited, a bond in double the amount of the undeposited assets, shall have the same effect. At the time the amount of the bond was fixed all of the personal assets, except the household goods and wearing apparel of the testatrix, were deposited in or impounded by the court. As to the personal property, except the household goods, this fully met the requirements of the act of 1897. The court, however, included among the assets not deposited the real estate of the testatrix which must have been valued at more than $50,000. The appraised value of the household furniture was $2,973.60. The costs accrued and likely to accrue were fixed at $1,000. The whole amount of undeposited assets, including the real estate, was estimated at $57,000 and the bond was fixed in double that amount. Such an interpretation of the act of 1897 is not warranted by its language. The act was intended to reduce the amount of a bond required to be given under such circumstances, and not to increase the burden of one desiring to make his appeal a supersedeas. To include the value of the real estate in fixing the amount of the undeposited assets does violence to the spirit and purpose of the statute. The income from the real estate might very properly be included, [570]*570but not the corpus. A bond in the sum of $10,000 would have been ample to secure the undeposited assets, the income from the real estate and the probable costs. We think the amount of the bond was excessive and not warranted under the act of 1897.
• The settlement of this estate has been delayed for several years by reason of this litigation. It should now be settled and distributed as expeditiously as possible so that those entitled to participate in the distribution may receive what was given them under the will. It should be borne in mind that the estate of the testatrix is what we are dealing with. It was hers to do with as she pleased and to dispose of as she wished in any manner not unlawful. She had the legal right to select the objects of her bounty and to give them much or little as she chose. The law is not concerned about what distribution she made of her estate so long as her benefactions are confined to legal channels. The questions of mental capacity and undue influence having been determined in favor of the proponents of the will its validity was established and certainly all parties are interested in an early accounting.
Both' decrees reversed, and the administrator cum tes-tamento annexo de bonis non is ordered and directed to deliver and pay over to appellant as executor all goods, chattels and property, moneys, estate or effects, in its hands belonging to the estate of Nancy W. Kuntz, deceased, upon said executor filing a bond, with sufficient surety or sureties, in an amount adequate to cover the value of the moneys, securities, personal property and income from real estate, that is or may come into his hands as executor' of the last will and testament of said testatrix, which bond is to be approved by the orphans’ court and be conditioned for the faithful discharge of his duties as executor and properly accounting for all the property and assets of the estate. Costs to be paid out of the estate.. •