
    Bell’s Estate
    (No. 2).
    
      Executors and administrators — Removal—Discretion of court — Act of May 1, 1861, P. L. 680 — Evidence.
    1. The discretion vested in the orphans’ court by the act of May 1, 1861, to remove an executor, will not be reversed by the appellate court, unless the latter court is convinced that the orphans’ -court abused the discretion vested in it.
    2. A decree of the orphans’ court removing an executor will not be reversed where the evidence tends to show that the executor had mingled the funds of the estate with his own funds, that his accounts were improperly kept, and that his intemperate habits disqualified him from the further discharge of his duties.
    Argued May 11, 1910.
    Appeal, No. 73, April T., 1910; by Edward Sergeant, from decree of O. C. Lawrence Co., Dec. T., 1907,-No. 20, discharging him as trustee of the Estate of John Bell, deceased.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    
      July 20, 1910:
    Petition for the removal of an executor. Before Porter, P. J.
    The facts appear by the opinion of the Superior Court.
    
      Error assigned was decree removing executor.
    
      A. W. Gardner, with him J. K. Wallace, for appellant.
    
      Robert K. Aiken, with him W. D. Wallace, for appellees.
   Opinion by

Henderson, J.,

This case was argued with No. 78, April Term, 1910, ante, p. 60, and involves practically the same question as was raised in that appeal. The appellant was executor of the will of John Bell and two of the legatees instituted a proceeding in the orphans’ court to secure the removal of the executor for squandering and mismanaging the estate and for incompetence. The testimony taken in the proceeding to remove the appellant as trustee under the same will was offered in evidence in this proceeding and was considered by the court. The only question involved is the sufficiency of the evidence to support the decree. The court exercised a discretion authorized by the Act of May 1, 1861, P. L. 630, in making the order complained of and that action can only be reversed when we are convinced that the court abused the discretion so vested: Perrett’s Estate, 14 Pa. Superior Ct. 611. We were unable to so find in the proceeding to remove the appellant as trustee and as the evidence in that case was before the orphans’ court when this case was determined it necessarily follows, that the affirmation of the decree in the appeal from the court of common pleas leads to a like result in this case. .There was evidence from which it might be concluded that the appellant had mingled the funds of the estate with his own funds, that his accounts were improperly kept and that his intemperate habits disqualified him from the further discharge of his duties. As the appellant and the witnesses were not before us we have not the same opportunity to estimate the worth of their testimony which the court below had. It was clear to that court that the accountant had mismanaged the estate and that he was not competent to administer it. This was not necessarily a reflection on his integrity but bears on his judgment as a trustee and on his personal habits.

We are not satisfied that the court abused the discretion which the law gives and the decree must be affirmed.  