Estate of Starr

Opinion by Rice, P. J., “ It would involve intolerable mischief if any intermeddler could compel an executor to file an account of his trust whenever demanded. Hence, the proper practice is, where a person who is not a creditor obtains a citation, to answer it, denying that the petitioner is a creditor. This at once challenges his position as such, and unless he can make out a prima facie claim, it is the duty of the court to dismiss his petition: ” Lightner’s Estate, 144 Pa. 273. It may be conceded for present purposes that the court might properly have pursued the course above indicated in the present case; but it does not follow that its action in awarding the citation, without requiring the petitioner to prove affirmatively that she had not received the specific articles willed to her, is reviewable. The petition alleged that the petitioner was a legatee and gave the court jurisdiction to compel the respondent to file an account. The answer did not deny that the petitioner was a legatee, but set up a defense to her claim, namely, that she had received her legacy. If the court had heard the testimony on that question of fact and had decided it erroneously, and awarded the citation, still there would be no appeal, because it would not have been a definitive decree. The same is true where the court refuses to go into the evidence upon the questions of fact raised by the answer, until after the account has been filed. The appellate court connot take jurisdiction until a “ definitive sentence or decree ” has been entered: Act of March 29, 1832, sec. 59, P. L. 213. It is well settled that a decree of the orphans’ court citing an executor to file an account is an interlocutory decree from which no appeal lies: Palethorp’s Estate, 160 Pa. 316. Concerning this question Chief Justice Gibson said: “It would be oppressive to drag a suitor here on every intermediate order, to be delayed a year before he could take another step. A suit in the orphans’ court would be the business of a lifetime, and the appellate court burdened with much unnecessary litigation: ” [215] Eckfeldt’s Appeal, 13 Pa. 171. It is unnecessary to refer to the numerous analogous cases, since these are directly upon the point. It follows that the appeal was prematurely taken. Appeal quashed.