Sprissler's Estate

Philadelphia County Orphans' Court

Sprissler's Estate

44 Pa. D. & C. 205, 1942 Pa. Dist. & Cnty. Dec. LEXIS 438

CourtPennsylvania Orphans' Court, Philadelphia County

DecidedMarch 27, 1942

Docketno. 174 of 1941

StatusPublished

This text of 44 Pa. D. & C. 205 (Sprissler's Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sprissler's Estate, 44 Pa. D. & C. 205, 1942 Pa. Dist. & Cnty. Dec. LEXIS 438 (Pa. Super. Ct. 1942).

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Opinions

Ladner, J.,

In this estate the learned auditing judge (Stearne, J.)' continued the audit of an account of the executors under the last will of Clara W. Sprissler, deceased, because of pending proceedings to open the probate of said will in order to allow an alleged codicil thereto to be offered.

The Bible Institute of Pennsylvania then presented a petition to the auditing judge, praying for the audit of the account and distribution thereunder except for a sum sufficient to cover the additional gift provided for in the codicil. Upon this petition the learned auditing judge entered the following decree:

“And now, January 21, 1942, the prayer of the within petition is refused. It has been the uniform practice in this court to refuse to audit an account while an appeal from probate is pending. This practice applies to an appeal concerning the will itself, or (as in the present case) for the purpose of opening-probate in order to submit to the register an alleged codicil or codicils to the will. The sound reason for such practice is that should other testamentary papers be admitted to probate, it may well be — as is frequently the case — that a construction thereof may vitally affect the dispositive provisions of the will itself. The instant paper, which is the subject of the present litigation, has never been submitted to me, and, indeed, I should decline to construe it unless and until the same has been duly probated. Furthermore, probate is a matter in rem. Should I accede to the prayer of the petition, and set aside a sum of money to insure payment of any legacy or legacies in the codicil, in the event of a subsequent petition for the [207]*207probate of any other testamentary paper (which the record in this case reveals is quite within the realm of possibility), all funds would have been distributed when the final probate is completed. I feel that despite any hardship, no audit or distribution should be made until probate is concluded.

“For these reasons the petition is dismissed.”

To this decree counsel for the Bible Institute filed an exception which is the matter now before us for disposition.

Whether an auditing judge, under, circumstances such as above recited, is obliged to refuse to audit an account is a question that need not be decided in the matter before us. Counsel cites no authority in his brief upon the proposition, and those that we have found all indicate that the court en banc will not interfere with a refusal by the auditing judge to audit an account when such refusal is based upon sound reason as here. This is one of the matters that rests largely in the discretion of the auditing judge whose judgment we are bound to accept unless an abuse of discretion is shown. We find no such abuse here. See Neal’s Estate, 16 Phila. 330, Hawworth’s Estate, 16 Phila. 233, and Wiley’s Estate, 8 Dist. R. 419.

Exceptions are dismissed.

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Ladner, J.,

In this estate the learned auditing judge (Stearne, J.)' continued the audit of an account of the executors under the last will of Clara W. Sprissler, deceased, because of pending proceedings to open the probate of said will in order to allow an alleged codicil thereto to be offered.

The Bible Institute of Pennsylvania then presented a petition to the auditing judge, praying for the audit of the account and distribution thereunder except for a sum sufficient to cover the additional gift provided for in the codicil. Upon this petition the learned auditing judge entered the following decree:

“And now, January 21, 1942, the prayer of the within petition is refused. It has been the uniform practice in this court to refuse to audit an account while an appeal from probate is pending. This practice applies to an appeal concerning the will itself, or (as in the present case) for the purpose of opening-probate in order to submit to the register an alleged codicil or codicils to the will. The sound reason for such practice is that should other testamentary papers be admitted to probate, it may well be — as is frequently the case — that a construction thereof may vitally affect the dispositive provisions of the will itself. The instant paper, which is the subject of the present litigation, has never been submitted to me, and, indeed, I should decline to construe it unless and until the same has been duly probated. Furthermore, probate is a matter in rem. Should I accede to the prayer of the petition, and set aside a sum of money to insure payment of any legacy or legacies in the codicil, in the event of a subsequent petition for the [207]*207probate of any other testamentary paper (which the record in this case reveals is quite within the realm of possibility), all funds would have been distributed when the final probate is completed. I feel that despite any hardship, no audit or distribution should be made until probate is concluded.

“For these reasons the petition is dismissed.”

To this decree counsel for the Bible Institute filed an exception which is the matter now before us for disposition.

Whether an auditing judge, under, circumstances such as above recited, is obliged to refuse to audit an account is a question that need not be decided in the matter before us. Counsel cites no authority in his brief upon the proposition, and those that we have found all indicate that the court en banc will not interfere with a refusal by the auditing judge to audit an account when such refusal is based upon sound reason as here. This is one of the matters that rests largely in the discretion of the auditing judge whose judgment we are bound to accept unless an abuse of discretion is shown. We find no such abuse here. See Neal’s Estate, 16 Phila. 330, Hawworth’s Estate, 16 Phila. 233, and Wiley’s Estate, 8 Dist. R. 419.

Exceptions are dismissed.

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Bluebook (online)

44 Pa. D. & C. 205, 1942 Pa. Dist. & Cnty. Dec. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sprisslers-estate-paorphctphilad-1942.