McNichol's Estate

Van Dusen, J., — The third and fifth exceptions relate to the refusal of the auditing judge to allow to one of the executors the full amount of compensation claimed for defending the will. The executors were the residuary legatees under the will, either for themselves or in trust, as may be hereafter determined. This is only a partial account, and the funds embraced by it were not sufficient to pay legacies. It will not be determined who are the persons entitled to the residue until the residue comes before the court. As the residuary estate will have to bear its share of this compensation, the auditing judge did not finally pass upon the claim, stating that would be more properly determined when the residuary legatees were ascertained and could be heard; but he allowed a sum out of the fund before him on executors’ services account. The third and fourth exceptions relate to the refusal to allow the full amount claimed as counsel fee for services to the executor in defending the will. The same considerations apply to these exceptions. The matters of counsel fees and compensation of accountants are peculiarly for the auditing judge, and his conclusion, like the verdict of a jury, will not be disturbed unless glaring error is apparent: Wolf’s Estate, 22 Dist. R. 541; Merchant’s Estate, 29 Dist. R. 299 ; Fisher’s Estate, 65 Pa. Superior Ct. 297. We perceive no such error, especially under the circumstances recited, and these exceptions are dismissed. The remaining exceptions relate to the issuance of letters testamentary to the Rev. Francis X. Wastl, together with the other accountant. Pending a contest of the will before the Register, Father Wastl renounced the executor-ship. Before the contest ended and letters issued, he withdrew his renunciation; and when the will was finally probated, the Register issued the letters testamentary in question. It was alleged on behalf of the other executor that the issuance of letters to Father Wastl was erroneous. The auditing judge held, however, that the decision of the Register on this point was conclusive; that his error, if any, could only be redressed by appeal from the grant of letters, and that his action could not be attacked collaterally at the audit of the executors’ account, which was a separate proceeding. In this conclusion we concur. The error, if any, is not in lack of jurisdiction, as argued on behalf of the exceptant; the question is one of qualification or disqualification by reason of matters occurring since the death of the testatrix. The determination of the persons entitled is within the general jurisdiction of the Register; the grant of letters by him is a judicial action, and, like other judgments, cannot be attacked collaterally: Carpenter v. Cameron, 7 Watts, 51. In that case the will named no executor, but the Register granted letters testamentary to the widow, who was the residuary legatee. In sustaining an action brought by this executrix, the court observed: “It was said if this probate was not within the jurisdiction of the Register, it was utterly void, [341] and should have been rejected; but this was not, and could not be, seriously pressed. There is no allegation that the will was not duly proved, and before the Register, and he alone had jurisdiction to grant letters testamentary, or of administration with the will annexed; if he mistook, an appeal was the remedy.” So in Clark v. Clark, 6 W. & S. 85, which was an action brought by an administrator, the court overruled, for the same reason, an objection to the standing of the administrator on the ground that the Register had mistakenly granted letters to a person not entitled. See, also, the discussion in Ziegler v. Storey, 220 Pa. 471; also, Miller’s Estate, 216 Pa. 247, eited by the auditing judge, and Cunnius v. School District, 206 Pa. 469. These exceptions are dismissed and the adjudication is confirmed absolutely.