Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Berks County, Dec. T., 1969, No. 58916, in re Estate of Anna M. Quinlan, deceased.
Kalman I. Nulman, of the New York Bar, with him John E. Marx, Michael A. O'Pake, and Marx, Ruth, Binder & Stallone, for appellants.
Mark C. McQuillen, with him John W. Biehl, for appellee.
Jones, Cohen, Eagen, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.
We are here called upon to determine whether the Orphans' Court of Berks County erred in refusing to remove one executor, the Right Reverend Monsignor Theodore Wagner, or abused its discretion in removing another executor, William L. Quinlan, Jr., on grounds of insolvency and general lack of concern for the estate. We affirm the decree of the orphans' court.
Anna M. Quinlan died testate on November 19, 1965, naming as co-executors of her estate William L. Quinlan, Jr., her son, the Right Reverend Monsignor Theodore Wagner, and John H. Tucker, a business associate. The major asset of the estate was, and is, the controlling interest in the stocks of the Quinlan Pretzel Company and the Reading Pretzel Machinery Company.
Mr. Tucker, who was for many years intimately associated with the Quinlan companies, continued to operate the businesses until his death in February of 1969. Following his death, disagreements arose between the remaining co-executors as to the proper disposition of the Quinlan companies, which the estate was seeking to sell. This dispute has culminated in a petition by Monsignor Wagner to remove Mr. Quinlan, and a cross petition by Mr. Quinlan to remove Monsignor Wagner. The orphans' court granted Monsignor Wagner's petition, but denied Mr. Quinlan's, and Mr. Quinlan has taken this appeal.
By statute, the orphans' court has the "exclusive power to remove a personal representative." Fiduciaries Act of 1949, P. L. 512, art. III, § 331, 20 P.S. § 320.331. Some of the enumerated reasons in Section 331 for removal are when the personal representative is "wasting or mismanaging the estate, is or is likely to become insolvent or has failed to perform any duty imposed by law; or . . . when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office."*fn*
The nature of our task in reviewing these situations was set out in Beichner Estate, 432 Pa. 150, 247 A.2d 779 (1968): "While, under that statutory provision, [Section 331] orphans' courts do have the power of removal of personal representatives and such removal lies largely within the discretion of such courts, an abuse of such discretion renders its exercise subject to appellate review. . . . Our present inquiry is whether the court below abused its discretion . . . ." Id. at 156, 247 A.2d at 782 (citation omitted).
In our review we are mindful of well settled principles in this area. An ...