The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-08-22

Action OF the Register OF Wills
Koch in Appointing Robert Koch
Ter Administrator Of the Estate.
In the estate of Frederick Simon, late
of this city Judge Vosburg in orphans
court yesterday handed down an opin-
ion in which he dismissed the appeal
from the action of Register of Wills
Koch in using his discretion and APP
pointing Robert Koehler, administra-
tor, the legatees all having renoAnced
their claims on the Enthusiastically.
The opinion follows:
According to the certified copy Of the
record of the proceedings before the re-
gister of wills. and the evidence adduced,
petition was presented to him on June
81 1902, by Matt. Gehen. Magdalen Hell
ler Charles j. Gehen. Margaret Malburg,
Katherine Wilder, Minnie Fidiam. Fred
Gehen, Mary Gehen and Regina Degan,
legatees under the will of the testator,
setting forth that the executrix originally
named is now dead. and asking that let
ters d. b. n. c. t. a. be Issued to Valen-
tine Malburg.
The same day a petition was filed by
Fred II. Winters and Charles Dupont
Breck, asking for the appointment or
some fit person; and on July LIST. the
petition of Valentine Simon and Valen-
tine Rosar was filed, requesting the regis
ter to appoint Valentine Rosar. On July
7th, the renunciation of Valentine Rosar,
jr, Mary Rosar, Jacob Rosar and Joseph
Rosar was also filed.
BY the pleadings 1t appears that there
are now living no widow, children or
brothers and sisters of Frederick Simon,
deceased, his nearest kin being the fol-
lowing nephews and nieces, to wit: Valen-
tine, Mary and Elizabeth Rosar; Peter.
Valentine, Joseph and George Simon. Af-
ter some informal hearings. at which
the parties in interest and their attnr-
rcys were present, the register decided
not to issue letters to any of the noE1i-
ness, and appointed Robert P. koehler,
administrator, d. b. n. C. t. a., IN this
estate. No reason for this action was as
signed of/record; but 1t was testified at
the hearing in court that there seemed
to be considerable feeling among the
legatees, which led the register to believe
that the interests of the estate would be
best cared for and litigation prevented,
il one having no interest at all should
administer it. IT, under the facts of the
case, the register had legal discretion
to make the appointment and issue let
ters to Robert koehler, then OF course
the court will not undertake to review
that discretion, except in case of
manifest abuse Of it. (Whiskey's Ap., 1OS
p, SGD.
LEAD TO LITIGATION.
No such abuse has been shown by the
evidence; in fact, the suggestion that the
appointment of Valentine Rosar would
lead to litigation, in line with the prin-
cipe laid down by some of the cases that
a lltigant should not be appointed CELL
makers Est, 4 Watts. 3D. 1t IS true
that. Mr.. Rosar has no matters In suit
with this estate: but 1t is certainly tine
policy of the law to avoid an appoint
ment which might lead to litigation or
any character. 1t also seems proper TO
state in this connection. that nothing de-
rogatory of Mr.. Rosar has ever been al
legged, or shown by the evidence. The I'M
portant question to be decided here is,
whether or not under the facts OF thls
case. the register was vested with
discretion under the act of March 15th,
1882 (P. l.. 14O to go outside of the next
of kin, and appoint one not given the
right of administration under the statute.
In this case, the next of kin did not
agree upon any one person as their nOmi-
nee; and even If they had done so, 1t Is
not clear that the register would have
been bound to respect their nomination.
1t is said in Woods Ap. (55 Pa, 333) that
'"The act makes no provision for noml-
nees or substitutes for the parties in in
terest." Woodward, c. j., further says
in the case last cited: ''He (the registeD
is bound to exercise sound discretion
when he selects outside of those to whom
the statute gives the right. and In the
absence of all evidence against his ap-
pointee, a sound discretion is to be pre-
sumed" AS nothing has been shown
TOol> Nlyh
indicate that he is not proper person to
serve as administrator. the exercise of
a sound discretion by the register in his
appointment must be presumed Under
the authority of Fricks Ap. d14 Pa. 29
those of the next of kin of the testator
who are non-resdcnts, have no standing
to take out letters, or to object to the
granting of letters to another. In that
case the register appointed one who was
not related to the decedent. and was not
a creditor of the estate: and this appoint
ment was affirmed by the Supreme court
upon appeal.
THE FAILoR CASE.
William w. Porter, j., in Failor's Est,
40 Pa. Supr. Court Rep, page 25S), says:
"In Elmaker's Estate, Mr.. Justice Rog-
ers expresses the opinion that the regis
ter is bound TO respect the nomination
of the next of kin, but 1t is said In
Woods Ap. (55 Pa. 1922 that the act
makes no provision for nominees or sub
stitutes for the parties In interest"
In Failor's Estate. the decedent died
intestatc, leaving as his next of kin
brother and sister, Both at first re-
nounced. the sister asking for the ap-
pointment of her son. The brother then
withdrew his renunclation, and asked
that the letters be issued to him. After
hearing the parties. the register granted
letters to the nephew, and this appoint
ment was affirmed upon appeal. Where
the parties in interest either renounce
or are minors, the register may grant
letters to any tit person. Riegers Ap., II
w. N. c., 279) An examination of these,
and other authorities, has satisfied the
court that under all the circumstances
of the present case, the register was
vested with discretion to make the ap-
pointment, to which objection is now
made; and there is nothing to show an
abuse of his discretion in so doing.
Furthermore, the practice followed by
the appellant does not seem to be the
proper one. 1t was held In Farelrs Est.
q w. n. c., 1O that where II is claimed
that the register has granted letters to
an improper person, application should be
made to him for the revocation OF such
letters, and an appeal to the Orphans
fcourt lies from his refusal to do so. This
sall. rtn IL