Concurring opinion filed Jan. 4th, 1874, by
Walker, J.This bill sets forth that Daniel Zerbe died in February, 1874, seized of a certain real estate in this county and that the defendants, claiming to act as executors, under and by virtue of a paper purporting to be the will of the decedent, have advertised and threatened to sell the real estate at public sale — and an injunction is asked to restrain them from proceeding, on the ground that the paper under which they are acting, is not the will of said Daniel Zerbe.
The paper bearing date the 10 Jan., 1873, signed by the decedent, has been filed in the Register’s office and duly probated, and letters testamentary have been issued to the defendants.
The complainants are the heirs of the decedent.
Shall this injunction be granted ?
The paper has been admitted to probate, and that fact is presumptive evidence of its validity, and stands until overthrown. Kenyon v. Stewart 8 Wr. 179. Holliday v. Ward, 7 Harris, 485. Shield’s Appeal 8 H. 291. 1 C. 142.
If there be error in this judicial order of the Register, the remedy is by appeal to the Register’s Court, under the act of 15 March, 1832— sec. 31. Pur. Dig 1235, PI 19 — 1 W. & S. 396.
While the Register’s decision stands, proceedings in equity cannot be entertained to impeach it — for a decree of a court of competent jurisdiction cannot be set aside in a collateral proceeding. 7 Watts 51. 12 H. 330. 1 W. & S. 396.
It is contended that the will is unintelligible and therefore void for uncertainty. Kelley v. Kelley 1 C. 460.
But it is a writing appointing executors, and authorizing them to sell his property. A will is good as to personal property where it only appoints executors. Rose v. Quick 6 C. 225, and even the word executors is not material, Carpenter v. Cameron 7 W. 51. See Kimmel v. Wagner, 2 Leg. Chron. 115.
The only question involved in this application in my opinion is to the construction of the will, as to the power of the executors tojsell the *315rea.1 estate of the testator. There can be no doubt as to their right to sell the personal property, for the probate of the will as to that, is final and conclusive. Logan v. Watts 5 S. & R. 213. Thompson v. Thompson, 9 Barr 234.
And the executor has control over the personal property of the decedent. 2 Redfield on Wills 116-117-210.
Whether some of the heirs are disinherited or not, will more properly arise upon the distribution of the fund by the executor. Hitchcock v. Hitchcock ti C. 393. Asay v. Hoovers Barr 21.
But there are other reasons why this injunction should not issue. There is no allegation that irreparable injury will ensue, and the facts set forth do not show that to be the case. Adams’ Equity 220. High on Injunctions § 464.
If an adequate legal remedy exists, the injury is not irreparable, Clarke’s Appeal 12 P. F. S. 447. New Boston v. Pottsville Water Co., 4 P. F. S. 164.
In an action of ejectment (1 R. 408, and 6 Barr 435) a construction of this will, as to the power of the executors to sell the real estate, would be given. At least it is a question of doubt, and unless the necessity be clear, a court of equity will not intervene by injunction. High on Injunctions §10. 4 Wr. 194.
For these reasons we think the injunction should be refused.
Injunction refused.