Opinion
December 2, 1924.
January 5, 1925.
Executors and administrators — Renunciation of executorship — Recall of renunciation — Collateral attack on grant of letters — Appeals.
1. One who has filed a renunciation of executorship may be permitted to recall it at any time prior to the final grant of letters testamentary.
2. If letters are issued to such executor after renunciation, before other action, the grant cannot be attacked collaterally, although it is subject of appeal.
Appeal, No. 82, Jan. T., 1925, by Patrick P. Conway, one of the executors, from decree of O. C. Phila. Co., Jan. T., 1922, No. 31, dismissing exceptions to adjudication, in estate of Ella E. McNichol, deceased.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ. Affirmed.
Exceptions to adjudication of THOMPSON, J.
The opinion of the Supreme Court states the facts.
Exceptions dismissed in opinion by VAN DUSEN, J. Patrick P. Conway, one of the executors, appealed.
Error assigned was, inter alia, decree, quoting it.
Francis Shunk Brown, with him Ulysses S. Koons, for appellant, cited: Wall v. Wall, 123 Pa. 545; Bowman's App., 62 Pa. 166; Miller's Est., 216 Pa. 247; Weidner's Est., 39 Pa. Super. 120; Miller v. Welch, 8 Pa. 417.
Daniel C. Donoghue, with him James Fitzpatrick, for appellee, cited: Miller's Est., 216 Pa. 247.
Argued December 2, 1924.
This is an appeal from a final decree dismissing exceptions to the adjudication of an account filed by two executors. We adopt the following excerpts from the opinion of the court below as sufficiently disposing of the question before us for determination:
"Pending a contest of the will before the register, Father Wastl [whom testatrix had named] renounced his executorship. 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 [named in the will] 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 be redressed only by appeal from the grant of letters and that his action could not be attacked collaterally at the audit of the executor's account, which was a separate proceeding. In this conclusion we concur. The error, if any, is not 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, 59." The court below cites also, Zeigler v. Storey, 220 Pa. 471, 475, 476; and Miller's Est., 216 Pa. 247, 255.
This only need be added: Our attention has been called to no principle of law or decision, and we know of none, which holds that one who has filed a renunciation of executorship may not be permitted to recall it at any time prior to the final grant of letters testamentary.
The decree is affirmed, costs to be paid by estate.