Van Dusen's Appeal

Chief Justice Mercur delivered the opinion of the court, February 12th 1883. On a previous adjudication of the account of the appellant as executrix, the court-found she iiad in her hands eighty shares of Pennsylvania Railroad stock, the certificatés of which were held in her own name, also two certain mortgages, held in like manner, all of which were part of, and belonged to the estate of the decedent. It thereupon ordered her to convert the railroad stock into a legal investment, and to assign the mortgages to herself as executrix. The court' further awarded the whole principal of the estate amounting to $12,957.33 of which the stock and mortgages formed a part, to the appellant for life. That decree was not appealed from, and remains in full force. The appellant has in an irregular and unsatisfactory manner attempted to execute the order in regard to the mortgages ; but has wholly failed and neglected to convert the railroad stock as directed. Under an assumed right to interpose her private judgment against the order of the court, she has omitted to convert the stock into a legal investment, and to transfer the principal of the estate to herself as life tenant in pursuance of the decree. Thus she not only disregarded the order to invest, but by continuing to hold the property as executrix she sought to deprive the residuary owners of the estate, of that security to which they are entitled. In view of the contumacious conduct of the appellant, the court could very properly find the interests of the estate were likely to be jeopardized by her continuance as such executrix, and remove her from her trust under the Act of 1st May 1861, Purd. Dig. 454, pi. 242. It is true a citation should have been issued stating the specific object, and no removal should have been made without such notice. The facts averred in the petitions of the appellees, and in her answer thereto, exhibit such a dereliction of duty, and such danger of loss to the estate of the petitioners as to clearly justify her removal after citation. The Act of 16th June 1836, Pur. Dig. 1110 pi. 52 makes it our duty, in all cases of appeals, from the several Orphans’ Courts, to hear, try and determine the merits of such cases and to decree according to the justice and equity thereof. While the manner of removal in the present case is objectionable, and should not be followed, yet in view of the command of the statute, and of the manifest justice and equity of the case, we do not feel that the decree should be reversed. Her active duties as executrix in the settlement of the estate, had terminated. The sum justly in her hands had been ascertained, and fixed by final decree. Nothing remained for her to do, but to execute the orders‘made for the transfer of the property. Her removal as executrix- took from her no valuable right. All her [228] emoluments as sucb bad ceased. Justice and equity united in removing the obstacle which prevented the residuary ownei-s of the estate from having it duly protected. Decree affirmed and appeal dismissed at the costs of the appellant.