dissenting. — I agree with the statement of my colleagues that the refusal by the auditing judge to audit the account at this time is a matter that rests largely in his discretion. I must reluctantly disagree, however, with their conclusion that there has been no abuse of discretion by the respected and learned auditing judge.
If any question of construction could possibly be involved, I might view this case differently. However, the contested codicil is a matter of record in this court, and the decree of March 2,1942, entered by Sinkler, J., sustaining the appeal opens the decree of the register probating the will only for the limited purpose of re*208ceiving and acting upon a petition for the probate of the codicil in question and for no other purpose. It is clear, from an examination of the provisions of the codicil, that if valid its effect is to make an outright gift of $25,000 to Anthony Grieco and nothing else. Since all parties in interest, including the proponent of the questioned instrument, have agreed that the balance of the estate may now be distributed upon setting aside a sum sufficient to cover the gift in the codicil, I see no good reason to withhold distribution further. •
Rigid refusal to proceed with audits under circumstances similar to those existing in this case might tend to encourage designing persons to attempt to probate spurious wills.
Suppose an attempt were made to probate a questioned codicil containing a gift of $2,000 in an. estate of $20,000,000. Could it be supposed for a moment that any court would stay the entire proceedings while the validity of such a codicil was being tested? To do so would subject the beneficiaries to great and unnecessary hardship or compel them to submit to an infringement of their rights.
I see little difference between this hypothetical case and the instant situation. The petition avers:
“That there is presently in the hands of the executors in cash a sum in excess of $620,000, to which amounts are constantly being added, and undisposed-of assets valued at approximately $250,000.”
I fail to see what practical purpose is being served by withholding distribution contrary to the wishes of all parties in interest. If the question of proceeding with an audit is discretionary with the auditing judge, this would certainly seem to be the case in which such discretion should be affirmatively exercised. If, on the other hand, the auditing judge has the right to refuse to proceed with this audit, it seems to me that the matter ceases to be one of discretion and becomes a mandatory rule of law that an auditing judge cannot proceed *209with the audit in any case where a collateral question of probate remains open.
I desire to make it clear that nothing that I have said herein is to be construed in any way as passing judgment on or prejudging the merits of the proponent’s claim. I would not, however, delay distribution any longer, since most of the beneficiaries are highly-regarded charitable institutions whose praiseworthy work should be the subject of this court’s benevolent protection in these troubled days.
Sinkler, J., joins in this dissent.