174 Pa. 362 | Pa. | 1896
In their petition for the discharge of appellant as trustee etc., the appellees aver that in his second and final account filed, appellant expressed his desire to be discharged etc., and pray the court to enter a decree discharging him at his own request. In his answer, appellant avers that while he then desired to be discharged, or intended making an application for his discharge, he has since been advised and believes that it is to the best interest of the estate that he should continue as executor and trustee. A replication was thereupon filed by the appellees denying that it is to the best interest of the estate that appellant should continue to act, etc., and, in support thereof, they aver actual or prospective insolvency of appellant, mismanagement, etc. This was bad practice. Instead of filing a replication, and averring therein new matter as ground for appellant’s discharge, they should have asked leave to amend their petition by inserting therein other grounds for appellant’s discharge; or the appellant might have moved to strike out the irrelevant matter. But, so far as the record shows, neither party attempted to correct the pleadings. On the contrary, they acquiesced therein, and proceeded to take testimony, upon consideration of which the court found such gross mismanagement, on the part of appellant, as clearly justified his removal from office.
It is now too late for appellant to take advantage of an irregularity in the proceeding which might have been corrected, if he had moved therein at the proper time, and in an appropriate manner. It is idle to say that he objected to the proceeding. If he had done so in the proper way, the fact should appear of record. Merely verbal objections, without more, would of course be of no avail.
Decree affirmed, and appeal dismissed with costs to be paid by appellant.
