text:
      Orphans’ Court, Dauphin County,

      November 20th, 1857.
    In the Matter of the Account of Landis, Guardian of Lain.
    When a retiring guardian settles what appears on its face to be a partial account, exceptions may be filed to it, as if it were a final one.
    Six months’ time in which to invest a ward’s money will not be allowed to a guardian unless it be paid to him unexpectedly and at a time of the year in which it is difficult to loan money.
    A guardian is responsible for the loss of the rents of his ward’s real estate, unless he has required part of the money to be paid in advance, or taken security for its payment.
   By the Court.

Three points must be determined by the court in relation to this account and the auditor’s report thereon: First, Can the error in the account as filed and confirmed be corrected in the method attempted here? Seeond, Is the auditor’s report correct in relation to the interest to be charged the accountant? Third,, Has the auditor determined the liability of the guardian as to the rents, correctly ? It is conceded that the ward was at the time of settlement, and still is a minor, then unrepresented by any guardian except the accountant. The account does not show on its face that it is final, does not appear to have been specially inspected by the court, and was never submitted to the investigation of an auditor. It must therefore be treated as a partial account, such as the law requires to be settled every three years, and all of which, with the final account, are subject to exceptions. In the present case the retiring guardian was not called on to settle any additional account, .but exceptions were filed to the one now before us, some six months after confirmation. Had the court specially examined this account, or had it been submitted to an auditor, there would have been no other remedy than by petition of review. Where that is not done, and the ward is still a minor, it may be treated as a partial account, and exceptions filed afterwards. Regularly, the guardian should be cited to settle a final account, when exceptions may be filed to it, and all which precede it; but the law will not call' upon the party to do a vain thing. Were he so cited here, there cannot be a doubt but that the present account could be set up as showing all that he could bring forward. We therefore consider that substantial justice is done, according to the forms of law, in permitting the ward to file exceptions to the present, instead of requiring the guardian to file another account. That the confirmation under the circumstances cannot be treated as final, we think perfectly clear; and if it were, the end now proposed would be readily and fully reached by a petition of review, which would only add to the expense of the parties. The exceptions are therefore properly filed. Second, The decision of the auditor on the subject of interest is in the main correct. Nearly all of the sums recovered by the guardian were paid about the first of April. Yet in his account as filed, he claims to have six months to invest the money. In deciding on questions of this character we must look to the general habits of business of the particular community where the money is received. In this, and most of the Eastern, and certainly in all of the neighboring counties, money is generally lent on the first of April. Nearly all payments are made on that clay. Sales made in the Orphans’ Court are almost uniformly made payable on the first of April, because at that time the purchaser can have money at command, and the vendor can immediately put.out at interest all surplus not required for the wants of the estate or the ward. In the present case the instalments due on the real estate were payable on the first of April, It was the duty of the guardian to look out for a place of investment or loan, as he knew long beforehand that the money would then be received. There has certainly been no period in our history when there was the slightest difficulty in making loans of money on the first of April; and for us to say that in every such case the guardian, in the absence of any proof of an endeavor and failure to lend the money, should have six months to put it at interest, Avould be to establish iniquity by law. It Avould enable guardians in any case to pocket the proceeds of their wards’ money for six months, or negligently to lay it aside without an effort at investment. When the fund is paid unexpectedly, or at a season Avhen money cannot readily be lent according to the business habits of the people, it is fair to allow six months for investment in the absence of proof on either side. Here the guardian knew beforehand, or had every reason to suspect, that the money would be paid on the first of April, and had ample time before it was received, to arrange for investing it. This doctrine applies to all the instalments due upon the sale of the house, and the rents received on the first of April. The guardian knew beforehand when the money would be due and paid. On the item of $150 paid the first of May, 1852, and September 5th, 1852, $19.08, the auditor may or may not have been over-strict, depending on whether the guardian did or did not know beforehand that the money would come into his hands at or about those periods. As before observed, where funds are unexpectedly received, and especially at a season when money is not ordinarily' lent in the neighborhood, a reasonable time must be allowed for investment, say six months; and the auditor will inquire whether' such was the case here, and if so, charge interest after the expiration of that period. . The item of $75 received on the 9th of April for rent, was doubtless due on the 1st,;and ..that well known to the guardian; he should, therefore, have prepared to.lend it as soon as received. We do not consider that the decisions of our Supreme Court by any means establish-the doctrine that a guardian, executor, or other trustee has at cdl times and under all circumstances, six months to make investments. If such were the rules established, it would call for immediate .legislative interference to prevent injustice; but the principle is only applicable to moneys unexpectedly received. As this account .must go back to the auditor for correction on another point, he can use his sound discretion in regard to correcting the charge on interest on the two items designated on the principles indicated, after ascertaining the facts.

Third. We consider that the .auditor arrived .at an erroneous conclusion in regard to the rents. A trustee is bound to use the utmost vigilance in regard to the trust estate. If an executor, administrator, or other trustee, 'sells the property in his charge without taking security, he is answerable. Should bail’ good at the time be taken, and both security and principal fail, the trustee would be exonerated. Where a guardian puts out the money of his ward at interest, without taking a lien on real estate or personal security, he has not done what the law requires of him, and is chargeable with the amount in case of loss. Nay, even where one guardian gives over the money in his hands to a guardian who is in doubtful circumstances, he has been held guilty of negligence. • This doctrine applies in all its force to the renting of real estate. We can see no difference between the rule of personal property, and the renting of a house or farm. In the case under consideration, no bail for the rent was demanded, nor was any part required to be paid in advance, one or the other of which is generally done by prudent men in their own business. In the case of Clark, no effort appears to have been made, either to get back the property when the tenant left it before the end of the second quarter, or to collect the rent from the original lessee or the person in possession. This was clearly negligence. The guardian has endeavored to secure himself on the ground that he did not make the lease; but it may be well answered that it was his duty to have made it. If he intrusted the care of the real property of his ward to a stranger, who owed no duty, and had no interest in contemplation of law in the subject, he is answerable. We are by no means satisfied from the evidence, that the guardian could not have readily collected the rent from Clark, had he been vigilant; but the decision is not rested on that ground, but on his neglect to take bail for the payment, or require the rent to be paid in advance, as the prudent now ordinarily do. Therefore we must hold this guardian answerable for all of the rent reserved in the respective leases, whether he collected the same or not, and the report is remanded to the auditor to be corrected.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Orphans’ Court, Dauphin County,

      December 18th. 1857.
    In the Matter of Galloway's Estate.
    An appraisement of the real- estate of decedent in order to set apart three hundred dollars’ worth for the use of the widow will be set aside when the value fixed was evidently erroneous. The appraisers should not take into consideration that the property was for the use of the widow, that she only had a life estate in it, or that she had helped to pay for it.
   By the Court.

The appraisement in this case was regularly made, presented to the court at May Term, 1857, approved and ordered” to be filed. At August Term of the same year, an application was made to set aside the confirmation and a]5praisement, on the ground that the property was greatly undervalued. This application appears to have been made at the earliest day practicable, as those interested rarely, if ever, have notice of the presentation of appraisements, until they have been confirmed. The evidence presented to the court satisfies us that the house and lot appraised at $300, and sot apart for the widow pursuant to the act of Assembly, is worth at least double that sum or more. The witnesses vary in their valuation from $400 to $1000. The only witness who fixes the value so low as $400, is one of the appraisers, who testifies that he considered it worth $400 in cash when he appraised it, but should not be appraised to a widow at over $300. All of the other witnesses fix the value much higher, and all, including the appraiser, agree that it would rent for $50 per annum. The appraiser states that the widow had paid a considerable portion of the money expended in building the house, which was mentioned amongst tbe appraisers, and doubtless taken into consideration, else it is impossible to understand how the value was fixed as reported by them. This kind of undefined equity must have no place in fixing a value on the property of a decedent. If appraised and set apart as his property, it must be treated as absolutely his. The appraiser also seems to make a distinction between appraising property for a widow, and fixing a cash value on it for other purposes ; and the counsel of the widow argues that such distinction is correct, because she does not get the fee simple. That is an error; she can sell the fee simple, and receive the money. It must be borne in mind that in very many cases the property set apart, whether real or personal, is taken from creditors, and if the fee does not pass to the widow, it does to the widow and heirs, and the creditors are deprived of its value. The law makes no distinction as to the method of appraising solvent or insolvent estates, nor does it require one valuation to be fixed where a life estate is given to a widow, and a different one where the fee simple is given the children of the deceased. In each and every case — and we may say in all cases under the acts reserving three hundred dollars’ worth of properly to debtors, or the widow and children of decedents — the goods or lands must be appraised at their actual cash value, without the slightest regard to the person receiving them; and whenever it clearly appears to the court that a different valuation has been fixed, it is our bounden duty to set it aside. It behooves the court to closely watch the appraisements, especially when the party in interest has the right to select the appraisers. The legislature, very unwisely, as we think, authorized the administrator to appoint appraisers. Yet if they had adverted for a moment to the other laws of the "State, they must have known that the widow is the primary person to administer, and entitled to receive the three hundred dollars’ worth of property when valued and set apart. Where there is no widow, or she declines administering, the children, in their orders of seniority, are entitled; and in many cases they are the parties to take in the first place, and always after the widow’s interest has ceased. The power to select appraisers we think could have been more safely conferred on the register of wills, or, if that were considered too troublesome, on some justice of the peace in the proper township, not of kin to the parties in interest. This is unlike the ordinary appraisement of a decedent’s goods, as their value has afterwards to be fixed by a public vendue. In the cases under consideration, they are taken absolutely. These observations are not made with a view to the present appraisers, who are men of good character; but, as we suppose from the evidence of one examined, have been influenced in their action by erroneous principles. The appraisement must be set aside, and a new one made.


author: By the- Court.

text:
      Orphans’ Court, Dauphin County,

      December 18th, 1857.
    In the Matter of Atherton’s Estate.
    A petition to the Orphans’ Court for an order to sell the real estate of a decedent for the payment of his debts, need not state that the property described is all the-real estate of which he died seized. But an account of the personal assets.must be presented to the court.
   By the- Court.

An order was made to sell the real estate of Stephen Atherton, deceased, for the payment of his debts. Two objections have been presented to this order which are worthy of consideration. 1st. That it is not stated in the petition that the property described is all the real estate of which the decedent died seized. 2d. That no account of the personal assets is presented to the court as required by law. The first objection we think of little moment, as it is shown to the court by affidavit that the estate described in the petition is all of which decedent died seized. We are of the opinion that when all is set forth, it need not be stated that the decedent had none other.

The second objection stated above is in our opinion fatal. Although no account is required to be settled by an executor or administrator before obtaining an order to sell lands (7 H. 416),. yet there must not only be stated in the petition the amount of debts due by the decedent, but also a true and perfect inventory and appraisement of the personal effects, so as to show that a sale is necessary for the payment of debts. This must be set forth under the oath or affidavit of the representative of the decedent before the court can lawfully make the order (2 H. 372); And this is the first case in which we have seen a decree for sale made without such statement, either under the act of 1832 or the former law. If the assets are not available, that should be stated, and might present a valid reason for ordering a sale. In doubtful cases the court can appoint an auditor to ascertain the amount and validity of debts, the extent of the assets, and what portion can be collected or converted into money, or what part of the real estate it is most advisable to sell. This petition being entirely defective in form, the sale must be set aside, and the order to sell revoked. All of which is decreed accordingly.


text:
      Orphans’ Court, Dauphin County,

      February 14th, 1859.
    In the Matter of Moyer’s Estate.
    The real estate of a decedent was ordered by the Orphans’ Court to be sold subject to a mortgage, but by mistake sold discharged of the incumbrance, the sale confirmed by the court, and the lien paid off by the executor.

      Held, That he must be surcharged with the amount of the mortgage. Hddfurther, That an auditor appointed to pass upon the executor’s account had not the power to. correct this mistake. Held further, That after a lapse of fifteen years, the Orphans’ Court will not amend their records so as to correct such an error, especially upon parol evidence.
    A party is too late in demanding an issue after an auditor has decided the question against him; such demand must be made at an early stage of the proceedings, and should be in writing.
    When an executor obtained more money by not entering, and proceeding upon a judgment held by him, he is not responsible to the heirs of his decedent for a neglect of duty.
    When exceptions to an executor’s account have been sustained, he must be charged with the expense of the audit.
   By the Court.

Jacob Loudenslager, as executor of George Moyer’s will, settled his account in the Orphans’ Court of Dauphin County on the 22d of April, 1858, after a citation. The account as exhibited resulted in a balance in favor of the executor. Numerous exceptions were filed by the heirs, and the whole were referred to an auditor, who has made a very full report to the court, resulting in a net sum due to the estate of $2486.78. To that report exceptions have been filed by both the executor and heirs. We shall not examine those exceptions in detail, but merely refer to some of the most prominent.

The largest in amount arises out of a sale of the land of the decedent, made in 1842, under an order of the Orphans’ Court. At the time of sale the estate was bound by a mortgage in favor of Joseph Batteiger for $1200, payable in instalments of $150 per annum, the first falling due in 1844. And the court ordered it to be sold subject to that mortgage. At the time of sale it is averred, and abundantly proved, that neither the executor, the purchaser, the crier, or any other person present was capable of reading the order; and from that cause it was proclaimed that it should be sold for a gross sum, and the lien by mortgage should be paid out of the bid.

The property was struck down to Jacob Miller for $3300, who signed a memorandum on the same day, saying that he had bought it at that price agreeably to the order — of course subject to the mortgage. On the 21st, of November, 1842, Mr. Loudenslager reported to the Orphans’ Court that he had sold the estate to Miller for $3300, “ on the condition within mentioned,” which was indorsed on the order and verified by the oath of the executor, and confirmed by the court on the same day. This sale was followed by a deed made on the 5th of April, 1843, reciting the sale for $3300, and receipting in full for the purchase-money; and by a separate receipt then given, and from the oath of Joseph Miller, Esq., it appears that the executor and purchaser were both aware of the error which had been committed in the sale and report, but supposed that it would be corrected by Mr. Loudenslager giving a receipt in the form prepared, and that he could lawfully apply the money to the discharge of the mortgage due Batteiger. That an error to the amount of the twelve hundred dollar mortgage was committed in this case we think is abundantly established by the evidence produced before the auditor, and his report satisfies us that he was convinced of the mistake. Could he, by the rules of law, correct it ? As we conceive, it was entirely beyond his power. The records of the Orphans’ Court showed that the land sold for $3300, subject to the mortgage, and the auditor could not correct that record, nor allow the executor a credit for the amount paid by him in discharge of the mortgage. The purchaser was bound to pay it, and but for the receipt given by the executor could have been obliged to comply with that part of the order of the Orphans’ Court, notwithstanding their mutual agreement to the contrary. According to the case of Vandever v. Baker (1 H. 121), parol evidence cannot be received to show that different terms were agreed on at the time of sale from those presented, after a report to and confirmation by the Orphans’ Court. "We are well satisfied with the course of reasoning pursued by the auditor on the part of this case, and he is abundantly supported by authorities. To reiterate them or enter into any further examination, would be a waste of time, especially as the whole subject is before us in a more plausible form, an application to amend the record by a petition in the nature of a bill of. review. The duties of an auditor in the Orphans’ Court are strongly analogous to those of the same officer in distributing money arising from sheriff’s sale. If it is intended to controvert the validity of a judgment of record, and show that it was obtained or kept on foot for the purpose of defrauding creditors, it must be done before the case goes to the auditor; he cannot inquire into such questions. It is true he may, on a proper case being presented, suspend proceeding until the person desiring to contest the validity of the judgment can make his application to the court in which it is entered, for an issue, and if the same is found to be invalid, as against the contracting creditor, it will be removed, and the auditor will proceed with his duties. And this brings us to one question presented by the report. Was it the duty of the auditor, under the circumstances stated, to suspend action until an issue could be made up and tried ? As we conceive, the demand was not made in proper form, or in proper time.

After the evidence had been heard by the auditor and his opinion expressed against the views taken by the executor’s counsel, the issue was requested. In our opinion, the demand for an issue should be made in an early stay of the proceeding, should be in writing, clearly express the points to be tried, and should be founded on a statement of facts verified by affidavit. It has been decided that .the party is too 'late in demanding an issue after going to a hearing before the auditor and learning his views of the case (5 Casey, 513; 4 Casey, 165; 3 Casey, 166).

i He has no right to first take the risk of a trial before the auditor and when dissatisfied with his judgment seek another tribunal. The request was too loose in form and substance. The object was to contradict a record by parol, which was inadmissible, and to do it by disproving the evidence produced by the party himself before the auditor, showing that the bid was but $2100, whilst all of the witnesses testify it was $3300, but that the amount of the mortgage was to be deducted from the bid. The exceptions taken by the accountant to the report of the auditor are overruled.

There are but two exceptions by the heirs which we consider it necessary to examine, that relating to the judgment against Daniel Emanual, and the expense of the audit — to the last of which the attention of the auditor does not appear to have been called. The testator held the judgment bond of Emanual for about five years, without having it entered in the prothonotary’s office. When it came into the hands of the executor, it was his duty to have it entered in a reasonable time, notwithstanding the course pursued by the testator. Not having done so, he is, prima faoie, responsible to the estate for a neglect of duty; but that responsibility may be arrested by showing that no loss, but a gain, accrued to the estate; that what was apparent neglect was, in reality, sound policy. It is established to our satisfaction, and was to that of the auditor, that more money was received from Emanual by his voluntary exertions than would have been made by any compulsory process. The executor so managed as to collect from him a much larger sum than the value of all the property which could have been levied on and sold by execution. This being the case, the estate has sustained no loss by the course pursued, and the subject is properly disposed of in the report. The expense of this audit should, in our opinion, be paid by the accountant. We are aware of the extreme hardship on him of being obliged to pay $1200 which he never received, and the advantage to the heirs of recovering that much more money from the executor than the value of their ancestor’s estate, money which never came into the pockets of the executor; but we must not permit those considerations to sway the settled rules of law.

In this case, the account as stated shewed the executor in advance with the estate, and a balance in his favor. By the report of the auditor, which we believe to be correct, there was due to the estate the sum of $2548.61 when this account was filed.

The heirs, therefore, had good ground for demanding an investigation, and should not be obliged to pay the expense of correcting -what they have clearly established to be errors on the part of the executor. To take the expense of the audit, out of the funds in the hands of the executor, throws the whole loss on the heirs. This is contrary to the decision in 10 H. 41; 5 Casey, 513; 3 Penn. L. J. 116, and several other reported cases in our State. The sum of $61.83, charged on this audit, must be paid by the executor, and with that correction, the auditor’s report is confirmed.

We will now proceed to consider the petition of the accountant, asking to correct the error committed by him in reporting the sale of the real estate of the decedent on the 21st of November, 1842, and the answer of Isaac Moyer and the other heirs of George Moyer, deceased, to that petition. This application was presented before tire exceptions to the auditor’s report were argued, and the whole was heard together. The evidence taken by the auditor was used by both parties on the argument of this part of the case, and as the application, if favorably received, would materially affect the result, it must be considered as if first decided. From what we have already stated in this opinion, it must be clear that we consider the mistake established beyond any doubt or dispute. It is not apparent in any of the writings, but rests entirely in parol. Can we lawfully correct the error by amending the record? In England, fraud and mistake are peculiarly cognizable in courts of equity, and a bill of review may be maintained at any time within twenty years, and, according to some of their decisions, even after an appeal to and confirmation of the decree by the House of Lords. It is true that we have not recognized that doctrine in the United States after a review and affirmance in the superior courts (6 Barr, 402, and the cases there cited). But no such imnediment stands in our way in the present case.

This is not, however, a bill of review, which is only allowable for error of law appearing on the record, for new matter which has arisen since the decree, or for new proof which has come to light after its passage, and which the party could not have availed himself of at the time. It is in plain English a petition in the Orphans’ Court, asking to correct an error committed by the petitioner himself in reporting a -sale of property to that court, on which its decree was founded. The principal objections to allowing the amendment are, the great length of time which has elapsed since the mistake occurred, and that it must be established entirely by parol evidence. Our Orphans’ Court is governed in many particulars by the same rules which regulate proceedings in chancery, but it is by no means possessed of all the powers of that court. Its jurisdiction is conferred by various statutes, and in some particulars is narrow and limited; in others broad and extensive. Chancery is restrained as to the time within which it can give relief by analogy to the statute of limitation, the Orphans’ Court by analogy to the various laws enacted for its regulation. The time given for an appeal to the Superior Court is three years; that for reviewing errors in the account of an executor or administrator, five years; that for prosecuting a writ of error in the "common-law court, seven years. It is strongly intimated by Judge Bell, in George’s Appeal (2 Jones, 260), that the time will be fixed for correcting errors in the Orphans’ Court by analogy to some of these statutes. After six years the party is ordinarily barred from correcting all errors or mistakes by action, or by means of set-off in the common-law courts, provided that mistake be known to the party asking to correct it. In this case the executor knew at the time he was selling, that he was doing it by virtue of an order of the Orphans’ Court, and should have made himself acquainted with the terms of the order before proceeding, although we are satisfied from the evidence, that none of the parties present were capable of reading the order. Yet that same day a report of the sale was drawn by Esquire Shiner, and signed by the purchaser, and there could be no doubt that Shiner could have read the order. Sixteen days afterwards the executor made his report to court, and the same is drawn up in form by his counsel (if he had one); and then the mistake could have been corrected, had he furnished the necessary information. On the 5th of April, 1843, the executor’executed a deed, reciting that the sale of the land was for the price of $3300, and receipted in full for that amount of purchase-money. There was them, ample opportunity to obtain proper instruction from the person preparing the deed. On the same day it is shown by the evidence of Squire Miller that the error was talked over between the vendor and vendee. He informed them of the effect of the return of sale, and that Jacob Miller would take the land, subject to the payment of the $1200 mortgage. They declared that such was not the intention, and the receipt given in evidence was then prepared, and signed to relieve the purchaser.

It is very probable that the executor was too ignorant of law to understand that, by relieving Miller from a burden, which he had in law taken on himself, he was placing it on his own shoulders. But it is very clear that ho then knew the facts, and courts cannot relieve against ignorance of law. Had an application been then made to the Orphans’ Court, there is no doubt this mistake could have been corrected, either by setting aside the sale, or permitting the return to be altered. But 'the executor never moved in the business for upwards of fifteen years, when he settled his account, and undertook to show that the sale of the land for 3300 was subject to a mortgage of $1200, in plain contravention of the order of the Orphans’ Court. Nor is there any application to amend that record until after a hearing before the auditor, to whom the account was referred. Although we have every desire to relieve the accountant, and sustain his application, yet, as we understand the law, it cannot be done after so great a lapse of time. Even a court of chancery will require of every party to proceed with reasonable diligence; and this is more expressly the case when the record of a court is asked to be corrected by parol evidence.' In the present case not one scrap of wilting, not even a private memorandum coextensive with the sale, has been exhibited to establish the mistake, and even the receipt drawn by Esquire Miller some months after, is equivocal, we should consider the precedent asked to be introduced by the proposed amendment, most dangerous to the community, subsersive of all the rules of law, and destructive to the records of our courts.

Although mistake and fraud are generally relieved against in equity, yet it cannot be done when a party sleeps over it for fifteen years after its discovery. Our courts of law have always held in this State that an action cannot be sustained to redress a wrong occasioned by fraud or mistake, unless the suit is brought within six years after discovery. "We must date that discovery here from the time of the conversation with Squire Miller on the 5th of April, 1843. Loudenslager then knew every fact which he knows now, and if ignorant of the law, should have taken advice. Men should not undertake duties and trusts which they have not sufficient knowledge to perform with reasonable safety to themselves and others.

The only fraud which can call into action the interposition of a court of equity in the present case arises from the attempt on the part of George Moyer’s heirs to take advantage of the mistake committed by the executor, after that mistake is shown to exist. We think that they, in common with every one who will read the evidence, must be convinced that the executor committed a blunder in making his return, to the amount of the Batteiger mortgage. That the property sold for about $3300, including that mortgage. That the actual cash value, in the opinion of the purchaser, was not over $3300; but the advantage of having eight years to pay the mortgage without the instalments bearing interest induced the bid. But this is one of those unconscionable acts which we cannot relieve against. The laws give them the advantage, and we cannot deprive them of it without subverting and overturning principles of more importance to the community than the hardship in any particular case. The general principle which preserves the infallibility of records, and prevents them from being overturned, or ehangned by parol, is necessary for the public safety, and cases of individual hardship must yield to the benefit of the whole people.

The application- to amend the record is refused, and the report of the auditor, as corrected in regard to the expense of the audit, is confirmed.


text:
      Orphans’ Court, Dauphin County,

      December 19th, 1859.
    In the Matter of Ayres’s Estate.
    When a public escheator failed to pay to the commonwealth money collected by him in his official capacity, an informer has no claim upon his estate for his commission.
    Claims not barred by the statute of limitations at the time of the death of the decedent may be recovered in the Orphans’ Court any time before the settling up of the estate.
   By the Court.

Two exceptions have been taken to the report of the auditor in this case. First. For rejecting the claim arising out of the escheat of James Itedmond’s estate. It seems that Mr. Ayres was appointed deputy escheator-general; and as such, caused the estate to be sold, received the money either in that capacity, or as attorney for the commonwealth, and never paid the same or any part thereof into the State treasury. His estate is entirely insolvent, only paying five cents on the dollar. The creditors claim that this money is coming to the commonwealth, and therefore the debt is postponed, must be paid last, under section 21 of the act of 24th of February, 1834. The person giving information of the escheat insists that although the debt is nominally due to the State, a certain portion thereof is actually coming to himself, and that he has a right to come in pari passu with the other creditors. The various acts of Assembly require the money arising from escheats to be paid into the State treasury, and provides for refunding it to the heirs under certain conditions, should known kindred afterwards present and establish their claims. Sections 9 and 10 of the act of 20th of September, 1787, fix the amount to be paid to the informer, and direct the money to be paid to him out of the State treasury, he giving security to refund on certain conditions therein specified. The claim of the informer is on the State treasury, not on Mr. Ayres. There never was a right of action by the informer against him, and between the two there is a total want of privity. It is very true that by reason of the failure of Mr. Ayres to pay the money into the treasury, the informer may wholly lose his claim, but that does not prove that Mr. Ayres was his debtor. The State would become so on the money coming into the treasury, but not before. This claim was correctly rejected by the auditor.

Second. Exceptions have been taken to a number of claims, which the objectors say are barred by the statute of limitations. The report shows that the debts were not barred at the time of the decedent’s death, in May, 1856, but were when presented before the auditor in 1859. It has not been shown whether the claims were presented to the administrator within the year after the death of the decedent, and possibly that is not important. Section 1 of . the act of 24th of February, 1834, varies essentially from section 14 of the act of 19th of April, 1794, in this: the first-named law only requires that notice shall be given for all persons having claims to present them within one year, whilst the act of 1794 declared that all claims not so presented should be forever barred from recovery if the assets proved insufficient. Yet the commissioners for revising the code seem to have overlooked the variance, and say they only require six instead of four weeks’ publication. Under the former law, it is very clear that all of their accounts would be postponed if not presented in time; and if not filed with the administrator, there would be good ground for saying they could in no event claim any dividend. Whether the claims were or were not presented, is not in proof, and in our judgment that can make • no essential difference under the statute of limitations. Under the decisions, it seems to make none whatever. We had always understood until recently that w'hen the statute of limitations began to run, it ran over all obstacles, death of the party, infancy, coverture, absence from the United States, etc., and that the claim was barred in all courts; that the same rule of law prevailed whether the account was sued in the Common Pleas, or presented before an auditor in the Orphans’ Court. McClintock’s Appeal (5 C. 360), and Mitcheltree v. Veach (7 C. 455), seem to establish a different rule. By the first of these decisions, it is settled that if the statute has not run in the lifetime of the decedent, the claim may be brought against the estate at any period before it is finally settled, provided an auditor is appointed to make distribution among creditors; and by the latter it cannot be recovered in the Courts of Common Pleas. Therefore if a simple contract debt had remained due for five years and six months before the intestate’s death, the creditor would be barred by the statute if he commenced an action in a court of common law one year afterwards, but would not be barred at the end of ten years (if the administration account so long remained unsettled) provided he presented his claim before an auditor appointed to distribute the assets. We think this is reversing the legal maxim of vigüantibus non dormientibus jura subveniunt, and it is also calculated to drive parties from the courts of common law (the natural and constitutional tribunals for settling legal disputes) into a new statutory tribunal, never calculated nor intended for that purpose. It was formerly held that on the hearing before the auditor, each creditor was at liberty to contest the validity of every claim presented (Kittera’s Estate, S. C., 11 Penna. L. J. 446). But it seems that the important barrier of lapse of time, and the presumption of payment therefrom, is now confined to the courts of common law. It is for the Supreme Court to reconcile this conflict. The auditor was right in following the decisions, and they are equally obligatory on us, although we take the rule as one of faith and not of judgment. The exceptions are overruled, and the report confirmed.


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      Orphans’ Court, Dauphin County,

      May 8th, 1861.
    In the Matter of Weltmer’s Estate.
    A man made a will leaving all his property to his children, share and share alike; and if any of them should die without lawful issue, then their shares to be divided among his other children. In the latter part of the instrument, he directs his personal property to be sold and the proceeds paid to his heirs, as they become of age, share and share alike. Two of his children died, after coming of age, without issue. Held, That their shares in his real property went to their brothers and sisters, but that their administrators were entitled to their portions of the personal property.
   By the Court.

This case comes before the court on exceptions to the auditor’s report, which presents the following facts: Ulrich Weltmer made his will on the 9th of May, 1843, and died early in June of the same year, leaving ten children, devisees, named in his will.

They are all in full life except Henry and Anna, both of whom died intestate and without issue, the latter on the 4th of October, 1853, and the former in August, 1857. Anna married Daniel Sanders, who claims- her share of her father’s estate as her administrator, and Henry died largely indebted, and his portion is claimed by his administrator on behalf of creditors. Each were of full age at the time of their death. The land referred to in Weltmer’s will was sold by Jacob Behm, administrator, mm testamento annexo, on the twenty-fourth day of September, 1859, and it is the money arising'from that sale that is before the court for distribution. Henry and Anna died before the time fixed in the will for the real estate to be sold. It is conceded by the counsel on both sides that the land under the will of Ulrich Weltmer was agreed to be converted into money, and must be treated as such. And although the auditor decided it was real estate, yet as both parties contend otherwise and ask us to consider it, we shall not stop to inquire whether it is money or land, but call it money, as they desire. The clause in. the will, on Avhich this case mainly turns, is in these words: “ Item. I give and bequeath unto my children, whose names are Catharine, Christian, Anna, John, Eliza, Susanna, Abraham, Henry, Ulrich, and Jacob, share and share alike, of all my estate, whether real, personal, or mixed; and if any of my children shall die without leaving lawful issue, then their share shall be divided among my other children or their heirs, share and share alike.” Of the actual intention of the testator in the present case, we cannot entertain a doubt. The words of the will clearly show that he desired his properly to go in equal shares to each of his children, and if any of them died without leaving children living at the time of their death, their share should be divided among his other children then living, and the heirs of such as died leaving children. Is there any rule of the law which will prevent this intention from being carried into effect? It does not create a perpetuity — all the lives are in being. It does not put the freehold in abeyance, for no freehold is devised. The chattels are not limited as inheritances, nor is there any attempt to entail them. There is no limitation of a fee on a fee, nor is there any attempt to render a fee inalienable or clog it with other illegal conditions, and these probably embrace almost all the provisions which render wills illegal. The primary guide for the construction of wills is the intention of the testator as collected from the instrument itself. It is the polar star by which all courts should be governed, and nothing should cause us to swerve from or turn aside from that rule except some unbending legal principle.

The maxims and elements which have, of late, been introduced, we may safely say, in ninety-nine cases out of every hundred, subvert and overturn the actual intention of the testator. The courts make wills for men which they never intended, and by a perversion of language, cause testators to say what they never meant or thought of. It is contended by one of the parties here that the testator has attempted to entail personal properly, by providing “that if any of my children shall die without leaving lawful issue, then their share shall be divided among my other children, etc.” It must be conceded that personal property cannot be entailed, and that words in a will which necessarily have that construction pass the absolute interest in the effects. Had the word “ children” been used instead of “ issue,” the point could scarcely have been made, and yet it is well settled that the word “issue” may be construed “children,” where such appears to have been the intention (1 Roper on Legacies, 86, 87). Even the general word “heirs” is sometimes so construed (Idem).

The word “issue,” however, may be and frequently is explained by the context to mean children. (2 Jarman on Wills, 27; Idem, 258, 9; 7 Sim. 352; 9 Sim. 372).

The words “heirs of his body” will always import an estate tail when applied to either real or personal property, unless clearly qualified by other expressions, and when such words are used the limitation over of personal property will be void. But. the word “ heirs,” alone, will not always have that effect, and the same words in a will have been construed to create an estate tail in land, as it is a favorite of the English law, and only a limited interest in personal effects, as by any other construction the will could not be carried into effect. In both cases the courts act on the principle of sustaining the will if practicable, and hold the devises good, ut res magis valeat quam pereat. Therefore, where the gift of a term was to A., and if he should die without leaving issue, then to B., it was held to mean leaving issue at the time of his death. (1 P. Wm. 664.) So also where the words were “ to A. and his lawful heirs, and if he die and leave no lawful heir, then to B.,” it must be confined to leaving no issue at the time of his death, and is a good limitation over. (2 Term R. 720. See also 3 P. Wm. 258.) And although courts are unwilling to construe the same words differently, when applied to real and personal estate, yet the doctrine seems to be recognized by some of the best writers and in numerous decisions. (Fearne. C. 12, 471; 2 Jarman, 306.)

In Pennsylvania it was held that a bequest of personal property to A. and B., “ and in case either of them died without will or lawful issue, then the property of such son descending from, and given in the lifetime by the testatrix, was to descend to the survivor, his heirs, and assigns forever,” was good by way of executory devise, as the dying without lawful issue must be understood issue living at the time of the son’s death, because the property was to go to the surviving -brother. The contingency must happen at the time of the son’s death who died first. (6 S. & R. 460.) , And where the legacy was to take effect on the failure of issue at the death of the first taker, the limitation over was good. (6 S. & R. 29.) Both of the above cases were recognized as law in Rapp v. Rapp (6 Barr, 45), where the words were “ in case any of my children shall die unmarried and without lawful issue, the share or portion of him or her so dying, shall revert back to the survivors, share and share alike,” and held good as an executory devise of personal property and the limitation over not too remote. Against these cases and principles we have had pressed upon us the case of Rewalt v. Ulrich (11 Harris, 388), which is contended to be conclusive of the one under consideration. We do not understand that decision as conflicting with those cited; the words of the will are essentially different. “Should, however, my granddaughter die without heirs, her seventh part shall be equally divided among my six children before named or their heirs,” and held the limitation over was too remote, as it imports an indefinite failure of issue. Here the words are, “die without leaving kwful issue.” Leaving issue when? why clearly at the time of the child’s death, and such a limitation over is held in all the cases not to be too remote. The distinction is recognized in Smith’s Appeal (11 Harris, 10), where Lowry, J., says, “ A different construction- is usually put upon the phrase, dying without leaving issue, when applied to personal property.” Although generally satisfied with the course of reasoning of the court in Rewalt v. Ulrich, yet there is one position assumed by the learned judge -which we may presume to doubt, that had the words been “ died without issue,” it would have been construed an estate tail as to personal property where there was a limitation over to persons in being. So far as our examination has extended, all of the cases in England and America have construed these words to mean the same as dying without leaving ehildren, as otherwise the main'intention of the testator would be destroyed. The intention to create an estate tail of personal property must be manifest before the words will be so construed, as every testator must be presumed to know he cannot create a limitation over on such an estate, although many of the cases say the same words will create an estate tail inlands. But the principle is -unimportant in the present case, as the words leaving issue” clearly shows this intent. The aid of the word “ then ” has been invoked by the other side to prove that “ if any of my children shall die without leaving lawful issue, THEN their share shall be divided,” etc., means that their share of the estate shall be divided among the surviving children at once— at that time, treating the word as an adverb of time, and so it is in common parlance, and may be so intended here. But it is, when applied to limitations, generally treated as a particle of inference, connecting the consequence with the premises, and meaning “in that event,” or “if that happens,” and is a word of reasoning rather than of time. (2 Jarman, 319.) But whether treated here as an adverb of time, and meaning “ at once on the death of,” or as a particle of inference, and meaning “ in that event,” is unimportant, as in either case we understand it to signify that if either child dies without leaving issue living at the time of his or her death, the share shall at once, immediately, and in that event, go to the survivors or the heirs of the survivors, if they shall have left children, which rve believe the testator meant by the word “ heirs,” as used here. The counsel of Henry’s creditors and Anna’s administrator, has urged us to apply another rule adopted by the courts for expounding wills to the present case, “ that the testator meant, if any of his children should die, leaving issue during his (the testator’s) lifetime, then the estate should go to the others,” etc. It must be conceded that many of the best writers on wills and devises, such as Powell, Roper, and Jarman, recognize such a rule of interpretation in some cases, and the courts have of late resorted to it in many instances to solve the intention, but we are of the opinion that not once in a thousand times does any testator have such an event in contemplation in making his will, or where he has, it will be provided for in terms. In almost every instance where it has been applied, it has been to subvert, and not to promote the intention of the testator. It may answer as a means of cutting the Gordian knot, where from the intricacy or ambiguity of a will it is impossible to untie it, but the meaning of the testator is in- this case, as we apprehend, free from doubt.

Funch, for plaintiffs.

Kunkel and Mumma, for defendant.

There is one provision in this will which has not been adverted to in the argument: although in the clause' cited the testator bequeaths all of his property, real, personal, and mixed; but in a latter part of the instrument he directs his executors to sell all of his personal property, not bequeathed, at public vendue, and the money arising from the same, after paying his debts, to be paid over to my heirs as they become of age, share and share alike.” This being the last disposition of his strictly personal property, must control the earlier one in the same will, according to the legal maxim, that the last will must take effect (2 Roper, 328). It is probable 'that all the proceeds of such sale was required to pay his debts, but if any money remains therefrom, it must go to all of the children in equal portions, including the representatives of Henry and Anna, who, it is conceded, attained their majority.

We are of the opinion that neither the administrators of Henry Weltmer nor Anna Sanders are entitled to any interest in the money raised out of the real estate of Ulrich Weltmer, as the same went on their deaths to their surviving brothers and sisters. The account must be referred back to the auditor to' make distribution on the principles indicated.

Affirmed by the Supreme Court, July 25th, 1861. Not reported.


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      Orphans’ Court, Dauphin County,

      December 16th, 1861.
    In the Matter of Maier’s Estate.
    The Orphans’ Court has no power over §300 secured by law to the widow and family of a decedent after the appraisement is made and approved.
    When a widow has failed to demand an appraisement of personal property belonging to her late husband, under the three hundred dollar exemption law, until after an appraisement of all the effects was completed and returned to the register’s office, it was held that she was too late, and precluded.
    The value of the personal effects being under three hundred dollars, and one-half thereof having been bequeathed to the widow, and the other half to the child of the deceased; the widow having elected to take under the will, cannot demand any portion under the exemption law, as it would render that provision of the will inoperative.
   By the Court.

A rale was obtained by John C. Maier, a legatee, and one of the executors of Christian Maier, deceased, upon his widow, Rebecca Maier, to appear and show cause why she should not elect to take, or refuse to take, under the will, and also why $300 worth of the personal effects, claimed by her under the fifth section of the act of the 14th of April, 1’851, should not be distributed to the devisees, according to the will of said Christian Maier. On the return of the rule the widow came into court by her attorney, and agreed to accept under the will, but also claimed to have $300 out of her late husband’s estate, under the act of Assembly. The following facts were established on the hearing: Christian Maier, on the 26th day of July, 1861, made his last will, which was admitted to probate on the 31st of the same month, whereby he bequeathed, inter alia, to his wife Catharine, one-half of his personal property, and to his son, John C., the other half, making the latter one of his executors. On the 22d day of August, 1861, appraisers were selected, who on the same day appraised all of the personal effects of the deceased at $207.46, which was duly returned into the register’s office and filed on that day. On the 14th of September, the widow had a notice served on the executors that she claimed $300 under the exemption law, requiring them to appraise personal property for her to that amount, and if there was not sufficient, demanding the residue out of the real estate. The first question for our consideration is, was the notice in túne ? By the act of the 14th of April, 1851, the property about to be taken by a widow for the use of herself and family must be appraised in the manner directed by the act of the 9th of April, 1849, to wit, by three sworn appraisers. But by a later statute, passed April 8th, 1859, Pamphlet Laws, p. 425, it is provided, “ that hereafter, in all cases where properly shall be set apart for the widow and children of any decedent, the same shall be appraised and set apart to said widow and children by the appraisers of the other personal estate of said decedent.” This was by the intestate law required to be done by two sworn appraisers, within thirty days after administration granted, or letters testamentary issued. The wido^should, therefore, in the present, ease, have given notice to the executors that she desired to have the $300 worth of property appraised and set apart before the appraisement of the decedent's personal effects took place and was completed.

It is well established that the debtor who claims the exemption, must give notice before an inquisition is held on real estate (4 Harris, 300, 6 Harris, 307). Or where none is required, as in sales on mechanics' liens before advertisement (9 Harris, 210). This principle is applied to the sale of personal property in Gilleland v. Rhoads (10 Casey, 187). At page 190, Judge Woodward says: “ The time for demanding the exemption is at the levy, or at the latest before the advertisement of the sale, unless absence or other good cause be shown to excuse the delay.” And in Davis's Appeal, same book, p. 256, it is said : The right of a widow to claim the exemption is a personal privilege which she may waive, and is waived entirely by neglecting to. demand an appraisement at the proper time.” Now, as we conceive, the proper time for this widow to claim the exemption, was when her husband's personal effects were about to be appraised as required by law, and before the appraisement was completed and returned to the proper office. If not done before, she is too late, as the same reason which applies to cases of sales by a sheriff or constable will to this, — increased trouble and expense. There is no reason why the executors should be required to again convene the appraisers, and incur the expense of a second appraisement of the same identical property already valued and returned. The cost, trouble, and delay, are quite equal to that of a second advertisement by an officer, and the cases are strongly analogous. If the rule adopted by the .Supreme Court is to be adhered to, there is no reason why it should not be applied to cases like the present. It is contended, however, that the widow was ignorant of her legal rights, and should not be debarred on account of the small expense of a reappraisement ; that she has a strong equitable claim for relief. We are unable to perceive one particle of equity in her case, and independent of her neglect to demand an appraisement at the proper time, she is, as we conceive, precluded by another legal principle. Her husband had personal property at the time of his death worth but $207.46, one-half of which he bequeathed to his wife, the other half to his only son. The widow, with a full knowledge of the value of the property, has elected to take under the will, no doubt, on account of the legacy of fifty dollars a year required to be paid her by the son during life. She now attempts to defeat the bequest of personal property by taking the whole of it as an exemption. She cannot thus be permitted to take advantage of the other legatee. It is allowing her to enjoy the benefits of the will and get clear of any burden imposed, at the same time defeating the just expectations of the other iegatee. There is no other property for this bequest to operate upon, yet with a knowledge of that fact she accepts under the will.

On the argument still more is claimed for her, that she shall not be required to take the whole of the personal property towards paying her the $300, as one-half is her own already by the will, but that she can take that part merely bequeathed to the son, and obtain the residue out of the real estate of the decedent. This we conceive Avould be still more inequitable. She cannot make good her own legacy, and defeat that of the other legatee. As this estate is situated, Ave are of the opinion that by claiming under the will, the AvidoAV is precluded from demanding the $300 under the exemption laws. There is another reason Avhy she has no equity: the son Avas living with his father, constituting a portion of the family, at the time of his death; thus presenting an equal claim with the widow to the exempt property. The Avidow, -by the act of Assembly, takes “for.the use of herself and family,” yet it is well knoAvn that the effect of the law has been to give her entire control over the personal effects to the value of $300, appraised and set apart; and where money has been paid, she is enabled to appropriate it to her own use, to the entire exclusion of the other members of the family. This has often effected great injustice, and probably calls for some legislative remedy to secure the future rights of the children, especially as it frequently occurs that the widoAV is a stepmother. The law contemplates that each shall have an equal benefit in the property, as the widow is only authorized to take “ for the use of herself and family.” In the present case, John C. Maier, by his petition, asks that his stepmother shall be required to hold the property, if granted to her, for their mutual benefit. This is no more than equitable, yet we can make no such order. When the appraisement is made and approved, the court has no further control over the property; they must scramble for it as best they can; but it is an additional reason why equity would not relieve the widow against her neglect to make the demand for an appraisement in time.

The AvidoAv’s claim for an appraisement of $300 worth of the property of the deceased, under the exemption laws, is refused, and it is ordered that the effects appraised be brought into the usual course of administration and distribution, under the Avill of the decedent.


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      Orphans’ Court, Dauphin County,

      March 17th, 1862.
    In the Matter of Robinson’s Estate.
    A trustee cannot be charged with interest upon the interest of the trust fund remaining in his hands, when it was not called for or demanded. The profits of the sale of part of the trust property may be treated as interest, instead of adding it to the principal.
   By the Court.

Several exceptions have been filed to the report of the auditor, stating the trust account of the moneys held by Henry P. Eobinson for the use of Catherine Barrett, a few of which only present any difficulty. The first is to the manner in which interest is charged. It appears that the trustee often had in his hands a larger amount of interest than was paid over annually to the cesbui que trust. There is nothing to show that it was ever called for or demanded. Yet it is contended that the trustee must pay interest on the surplus; that rests should be made annually or oftener. At one time the doctrine of annual rests was recognized by the courts of Pennsylvania in almost all cases of trust; it may be considered as entirely exploded by the later decisions and is never allowed now, except where it can be shown that the trustee made interest on the interest, that he withheld the money when it was called for, or that the term of the trust required it to accumulate and be reinvested. There may possibly be other cases, but they are special exceptions to the general rule. Where a trustee may be called on for interest at any time, and must always have it ready, compound interest can never be demanded, even if the trustee has himself used the fund in his business. There is nothing shown in the present case tojustify a charge of interest upon interest. The exception is therefore overruled. The compensation of the trustee is also objected to; but we agree with the auditor, who heard the whole ease, that tlie charge of $300 for some eleven years’ care of a fund amounting to $7000 is not too much, especially where, as here, he purchased and sold one house, and again bought another. Those matters are attended with care and responsibility; as is also the investment of the money, and the receipt and disbursement of the interest. Had the charge of $100 been made, as was suggested in the argument, as compensation for defending the account as stated, it would be disallowed; but as we understand from the auditor, it was for stating the account. The only objection which could properly be urged to the charge is, that the account was so badly stated as to require to be done over again by the auditor; but as he has reported that the accountant must pay the expenses of the audit, that will, in part at least, counteract the error. Even tire most competent and skilful counsel will sometimes fall into errors in favor of their clients. It is complained that the auditors treated the $500 made on the sale of the first house purchased as interest, instead of adding it to the principal to bear interest in future. And this exception on first thought appears plausible; but when we take into consideration that it was no part of the trust fund required to be retained, but could be demanded by the cestui que trust as her own money at any time, the objection vanishes. It was an accretion growing out of the trust property, but did not become part of it. The trustee would not be entitled to it himself, as it was made by a sale of Mrs. Barrett’s house, bought with her money, and for her use. Therefore, she was entitled to it the same as to interest, and the trustee must have it ready for her at all times. In fact, it is fair to presume that she received it, as her receipts during that year amount to about $800, nearly $500 more than she received in any other year. It is very true that she had these arrears of interest due her, perhaps equal to that sum; but this is the only year down to that time when she overdrew the annual interest. It is to be presumed that it was drawing out the $500 profit made on the sale.

The last objection to be considered is that for a time no interest was computed on the $2500 of bank stock assigned to Mrs. Barrett ; and it is said that she did not draw the dividends. She was clearly entitled to all dividends made on the stock from the moment it was assigned. If a portion had been previously drawn by the trustee, and the stock was accepted as so much cash, dividends off, it is fair to suppose, in the absence of any evidence, that the stock was worth more than par. Mrs. Barrett was not bound to receive it as part of her fund, and there is no proof made before the auditor that Mr. Robinson received any part of the dividends, or whether it was worth more or less than what the face of the stock called for. On the whole, we believe that the account has been fairly settled by the auditor, on sound legal principle; none of the exceptions are sustained, and the account as stated, together with his decisions as to the expenses of the audit, is sustained.


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      Orphans’ Court, Dauphin County,

      October 20th, 1862.
    In the Matter of Horter’s Estate.
    Where a testatrix gave by her will certain specific legacies to some of her collateral kindred, and directed that the residue of her estate, after paying the legacies aforesaid, “ and other legal demands,” should be equally divided among her brothers and sisters, naming them, the collateral inheritance tax due on the specific legacies must be deducted from those legacies by the executor, and not from the general estate.
   By the Court.

On the 4th day of January, 1856, Mary Horter executed her will in due form of law, which was regudarly admitted to probate on the 28th of January, 1861, whereby she bequeathed divers sums of money and certain personal chattels to several of her collateral kindred by name, and afterwards directed that the residue of her estate, after paying the legacies aforesaid, “ and other legal demands,” shall be equally divided between her brothers and sisters, naming them respectively. The question submitted to the court is, whether the collateral inheritance tax shall be paid out of the estate before the residuary clause can take effect, or out of the previous named legacies in proportion to their amount and value, and only the residue be deducted from the share of the residuary legatees ? By the first section of the act of the 7th of April, 1826, the estates of decedents were subjected to the payment of the collateral inheritance tax, and the executors or administrators were required to pay it out of the estate, and held responsible until it was discharged. But by the sixty-second section of the act of February 24th, 1834, the legal representative was required to deduct the tax from every legacy before paying it over, whether it was pecuniary or specific, and in the latter case the value was to be ascertained by appraisement. ’The devisee or heir-at-law of land was required in like manner to discharge the tax before holding the estate on which it was made a lien, and by the sixty-ninth section, it is provided that where the tax has been deducted from the legacy and the legatee required to refund on account of after-discovered debts, the executor or administrator shall refund the amount, and is authorized to receive the same from the county treasury if it has been paid over. All of this proves that it was the policy of the legislature to throw the tax specifically on the legacies and not charge it on the general estate, which in many cases would be highly just and convenient, as the estate might go to lineal descendants, yet a large amount in the shape of legacies be given to collateral kindred or strangers. The object was to tax legacies, or conveyances to. take effect after death, when given out of the right line of descent, but leave the lineal kindred untaxed, yet if thrown on the estate instead of the legacies the lineal heirs would have to bear the burden of the tax.

There is no doubt of a testator possessing the power to relieve the legatees from the payment of the tax by throwing it on the residue of the estate where the same is sufficient to make payment, but it must be done by clear and express words or necessary implication. The burden which the law imposes on the legacies cannot be shifted by loose, equivocal or general expressions. The only words used in this will which could be so construed are those already quoted,<e other legal demands,” and if there was nothing else for these words to operate upon we should construe them as applying to this tax, but there is abundance of other matters to which they may refer. In the outset the testator orders her just debts to be paid, and she may refer to that or to the expense of settling the estate. In one clause of her will she directs a head and foot stone to be placed at her grave, and the lot inclosed by an iron railing, also that the remains of her deceased husband, father and mother shall be removed to the same place, and suitable stones placed at their graves, all of which expense would create a “ legal demand ” on her estate.

The reference may rather be to that than to the collateral inheritance tax, which we can scarcely suppose entered into her mind, and as there are ample matters referred to in the will to which these words may apply, I do not consider that they should be so construed as to change the law, which threw the tax on the legatees, and impose the whole burden on the estate. I am, therefore, of the opinion, that the legacies, whether of a numerical sum or specific articles, given to Mr. Adams, the executor, and to Rebecca Springer and Mary Horter Springer, must pay the tax imposed on them by law, and the residue of the tax alone be paid by the other legatees. Had the law remained as under the act of 1826, our decision would have been different. That act threw the tax on the estate, to be paid by the executor or administrator. The latter law imposed the burden on the respective legacies, and the legal representative is only authorized to retain it from them and not from the estate. This is not changed by the direction in the will for the reasons already given. The distribution account must be corrected accordingly.


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      Orphans’ Court, Dauphin County,

      December 30th, 1862.
    In the Matter of Miller’s Estate.
    Persons were appointed to appraise the personal estate of a decedent, and also to set aside three hundred dollars for the widow. They set apart $41 worth of furniture. After the return of the appraisement to the register of wills, one of the appraisers added $259 in money to the part given to the widow. Held, That this act vías irregular and void.

      Held, further, That the widow did not have such an interest in the $259, as descended to her heirs.
   By the Court.

From the documents and evidence returned in this case the following state of facts appears:

On the 23d of June, 1862, some one, we know not who, for the paper is unsigned, made out a notice in regular form, in the name of Anna Miller, widow of Andrew Miller, deceased, directed to John Landis, administrator of the estate, requesting to have appraisers appointed under the act of 1851, and its supplements, to appraise such property, as she might elect to retain out of the estate of her deceased husband. The administrator treated the notice as valid, and appointed George T. Hummel and Christian Landis to make the appraisement, they being also the appraisers of the general personal effects.

According to the evidence of Mr. Hummel, when they called at the late residence of the deceased they found the widow sick, and on inquiring whether she wanted any money set apart, said she thought she ought to have some. The daughter of Mr. Miller said to appraise certain furniture named, and there was some talk about letting her have the residue in money, but it nowhere appears that the widow consented to, or acquiesced in the arrangement. The appraisers then valued and set apart chattels to the amount of $41, and returned that appraisement, appraising all Of the other property and money as in the hands of the administrator.

After the widow’s death the administrator called on one of the appraisers, and said that they had forgotten to include the money; and that appraiser went into the register’s office, and added to the appraisement, as made out and returned, $259 cash, and also corrected the appraisement against the administrator to the same extent. The other appraiser testifies that he did not hear any one say that they would give the widow the balance of the three hundred dollars in money, and knew nothing of the addition of the $259 to the appraisement, after it was returned to the office. We are now asked to approve of this appraisement under the act of Assembly. We consider the whole action of the one appraiser not acquiesced in by his fellow as utterly void, and we cannot lend our sanction to what is evidently a most irregular proceeding. One man could not make the appraisement originally, still less could he change that which had been done by a legal board, and regularly returned.

We do not say that in the case of a plain mistake the same appraisers, on proper notice to the parties in interest, after being duly convened, might not correct an error; but it could not be done by one alone without the express sanction of the other. It may be that when their duty is performed and appraisement returned they are functus officio; if so, their subsequent act is void.

The object of this contest appears to be, on the part of the widow’s- family, to have the property vested in her to the amount of $300, that they may take as her representatives. We are not called on now to decide whether the $41 did or did not vest in her so perfectly as to enable her family to take to the exclusion of her husband’s children: that question may arise hereafter; but we have no doubt that neither unappraised money or property vested in the widow on her husband’s death; and we are equally clear that an unauthorized act, such as is disclosed in the testimony, performed by one appraiser alone, could not vest the money in the widow after her death.

Ve shall approve of the appraisement filed for $41, and set aside the residue. It is also, our duty to direct the register to cause the original appraisement of effects, in the hands of the administrator, to be restored to the situation it was in when filed in his office, and correct the alteration.


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      Orphans’ Court, Dauphin County,

      January 13th, 1863.
    In the Matter of Mitchel’s Estate.
    An executor, having sold property of the decedent, must be charged with the price mentioned in his deed.
    Claims for sums of money lent by the wife to the husband in his lifetime, may be demanded before an auditor upon his executor’s account.
    The Orphans’ Court has no power to open an executor’s account, in order to let in the widow’s claim for three hundred dollars; her only remedy is by an action against the executor.
    A wife may lend money to her husband, and sue his executors for it after his death; the statute of limitations does not run during the coverture.
   By the Court.

This case comes before us in the form of a bill of review presented by the widow of George Mitchel, asking for a reinvestigation of the account filed by the executors; and after the whole complaint has been fully heard, there is but one error either pointed out or established, requiring the account to be opened and reviewed, in order to do complete .justice to all parties.

It seems that the- executors sold land, and instead of charging themselves with the whole proceeds of the sale, eighty dollars, as evidenced by their deed, debited themselves with only sixty dollars. The payment was not made in cash; but a horse was delivered and accepted. There is some dispute as to the value of the animal, but we are of the opinion that the executors should be charged according to what they stated in their deed. The claims for sums of money lent by the wife to the husband in his lifetime were proper subjects for investigation in a court of law before a jury, and the administration account need not be opened to let them in. For a long series of years the Supreme Court held that all disputed claims must be so established. It has latterly decided that they may be presented before an auditor, or sued in a court of law at the option of the holder. The sooner claimants are thrown on the ordinary tribunals of the country to establish their right to recover debts from the estates of decedents, the same as against living parties, the better it will be for the cause of justice, the safety of estates, and the uniformity of the law. My individual opinion is, that there is' not the slightest sanction in the law for establishing such claims before an auditor; but in this, as in every other case, I bow to the sanctity of decision.

There is no right or power in the Orphans’ Court to open the settled account to let in the widow’s claim under the three hundred dollar law. If she has any remedy against the executors for neglecting to set apart or refusing to allow her that fund, it is by a special action on the case, and not by claiming it on settlement of the administration accounts, except when she is herself the executor.

As the account must be opened to correct the land transactions, and the parties have already had a full hearing of the pecuniary claims, we will proceed to decide them. We are of the opinion that the auditor came to a reasonably correct conclusion as to the sum of $240, as nearly correct as such a matter is susceptible of at so distant a period from the time of the transaction. He was quite as likely to guess right as a jury. That sum will be allowed, but without interest. It is clearly settled in Pennsylvania, that a husband may borrow money from his wife, and that his estate is bound to repay it. An action will lie on such a contract by the wife against her husband’s administrator, or by her administrator against him, though no suit could be sustained during the lifetime of both, and the statute of limitations does not run during the coverture (Towers v. Hagner, 3 Wh. 48, and the cases there cited with many others since).

The deceased also received $333.17 through his wife, which came to her in right of her deceased son, John Wilson. This money was raised by a sale of John Wilson’s interest in land, which had descended from his father, and in which his mother had a life estate. The land was converted into money after her son’s death; consequently came to her as land, in which her husband, Mitchel, had an interest as tenant by the curtesy initiate.

The widow of Mitchel is entitled to recover the interest on that money from the time of her husband’s death, so long as she may live, but from anything disclosed, she is not now and never was entitled to the principal. It must go to the next of kin to her son, ex parte, as the land would have gone. As the husband was entitled, in right of his wife, to the life estate so long as he lived, his promise to pay interest, even if proved, could not be binding; but his interest in the money ceased on his death, and from that time the widow is entitled to recover interest during her life, and the executors must take care that the principal is properly secured to the next of kin of John Wilson, deceased.

There is no pretence of claim to the residue of the $300, if the facts are truly stated in the auditor’s report. If she has any remedy, it is by a special action on the case.

This matter is referred back to the auditor to state the account on the principles indicated, and correct the settlement heretofore made, so that by a simple decree of confirmation of the report the whole business will be closed. The costs of the audit must be paid out of the estate.


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      Orphans’ Court, Dauphin County,

      February 23d, 1863.
    In the Matter of Snyder’s Estate.
    The interest of an heir in the share set apart for the widow, is the same as in the other portions of the estate, and hence, when the land of a decedent was taken by the heirs under the appraisement, and the widow’s third charged upon the land, upon her death the estate of a deceased feme covert heir will go to her husband’s assignee for the life of the husband, and after his death, to her heirs at law.
   By the Court.

Partition was made of the real estate of Nicholas Snyder, among his widow and children, during the years 1836 and 7, and a certain portion was charged thereon for the widow during life. Slie died in the year 1862, and the money is now in court for distribution.

That part thereof allotted to Hannah, wife of David E. Hoffman, is claimed by her children and by Thomas Harper, to whom it was assigned by her husband in the year 1846. Mrs. Hoffman died in the year 1845, leaving issue and her husband surviving, all of whom are still living.

It is not pretended that Mrs. Hoffman ever signed a writing under the 48th section of the act of 1832, agreeing that her husband might receive her distributive portion of her father’s estate, and the only open question under the decisions is, has the heir the same interest in the share set apart for the widow of a decedent that she has in the other portions of her father’s estate, arising from the proceedings in partition ? Every other question is settled by the plain words of the act of 1832, and the judicial decisions thereon.

Under our former statutes it was much lamented by the judges that they had not the power to secure a feme covert heir her interest in her ancestor’s estate in cases where it was turned into money in making partition (Yohe v. Barnet, 1 Binn. 365, Ferree v. Elliott, 8 S. & R. 315, same book, 172, and other cases). To remedy which, the framers of the code made provision in the 48th section of the act of 1832, that the husband should not receive his wife’s portion paid in money for owelty, or allotted in any other manner in lieu of her real estate, without the separate declaration of the wife in the method therein prescribed, that she desired the same to be paid over to him. In the absence of such declaration, the Orphans’ Court would require him to give security that such portion as it should deem proper must be paid to her heirs after her death, the same as if it had remained real estate, and on his failure so to do, the court was authorized to place the money in the hands of trustees, to be held for the use of the husband during life, and for the wife’s heirs after his death. So strict has been the construction of this act and of the doings of the parties under it, that we find soon after its passage the Supreme Court decided in Walter’s Estate (2 Wharton, 246), where a feme covert declared her avillingness for her husband to receive her distributive share before she knew the exact amount thereof, such declaration was not valid or binding, but might be revoked. And again in Beyer v. Reesor (5 W. & S. 501), where the declaration was made and duly acknowledged in the lifetime of the wife, but was not filed as required by the statute, the writing was void, and the husband could not receive the money. Taking it as settled law that the husband cannot obtain the money allotted to the wife for her distributive share in making partition of her father’s estate, in what particular does the portion set apart for the widow during her life, differ from the fund distributed? We are unable to perceive that it stands in any different situation. If the land itself is parted and divided into as many portions as there are heirs, each must pay the widow the sum charged on it respectively. If one heir takes the whole at a valuation, the amount to be paid to each heir and the widow is designated; but that to be received by the widow is for life only, after which it goes to the heirs precisely as it would have gone had it been distributed at the time of partition. It must be divided as the land itself would have been, and partition of the fund is only suspended during the widow’s lifetime. Whilst this fund is in the hands of the widow, it is not treated as money but as land, of which she is tenant in dower, is in the nature of rent-charge, with like remedy by distress to enforce payment (4 Wright, 176-7). It is real not personal property (11 Casey, 189, 190), and must be conveyed as other real estate (3 W. & S. 456), can be sold by the sheriff as the widow’s estate (3 Barr, 69), and if so sold as the property of the heir, she is entitled to claim rent as other landlords, out of the purchase-money.

The distinctive character of the original estate as dower is kept up, although it is land converted into money for a special purpose. The interest of Mrs. Hoffman, her husband and children, in the fund allotted to the widow of Nicholas Snyder, stands precisely as it did at the time of partition, and must be disposed of on her death, just as it would have been at that time.

David F. Hoffman was, before partition, tenant by curtesy in the real estate belonging to his wife, and under the act of Assembly referred to, was entitled to the money awarded to her in lieu of her share of the land, on giving security, to the satisfaction of the Orphans’ Court, that the amount thereof should be paid to the wife if she survived him, or to her heirs if he survived her, the same as if it had been land; or in case of his inability or refusal to give the security, the money must be invested in the hands of a trustee for the use of the husband during life, and for the wife’s heirs after his death, thus keeping up the curtesy estate. No security was ever given by the husband, consequently neither he nor his assignee is entitled to the money in court, but it must be given over to some trustee to be appointed by the Orphans’ Court, and placed at interest, which must be paid to Harper as assignee of Hoffman, during the lifetime of the latter, and on his death the principal must be distributed among the heirs at law of his deceased wife Hannah, precisely as the land would have gone had it never been converted into money.

We have been referred to a number of authorities by the coun- . sel of Mr. Harper, to prove that when land is converted into money, under a judicial proceeding, it must be distributed ever afterwards as money, and no longer retains its original characteristic. Such is the case of Grider v. Grider’s Admin’r, 11 S. & R. 224; Dyer v. Cornell, 4 Barr, 359; Ebbs v. The Commonwealth, 1 Jones, 374; and Pennel’s Appeal, 8 Harris, 515; and many others might have been cited to the same effect. But upon examination it will be found that none of them have any application to the present case, are precisely what this would have been, independent of the act of 1832. They are sales made by executors, administrators, guardians, or trustees, for the payment of debts, or maintenance of minor children, and none of them are conversions of land into money by proceedings in partition, which is regulated by a different statute; and such was the law of this case when Yohe v. Barnet, and Grider v. Grider’s Administrator, was decided.

On the facts stated, the Orphans’ Court must order the money to be invested in the hands of a trustee, for the use _ of Harper during the life of Hoffman, and for the heirs of Hannah Hoffman after his death.


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      Orphans’ Court, Dauphin County,

      February 19th, 1869.
    In the Matter of Parthimer’s Estate.
    When a decedent had promised his sons to make them a gift of certain bonds, some six or seven years before his death, but did not actually make the gift until nine days before he died, and when he was probably in extremis, it would seem that it was a donatio causa mortis, and not inter vivos ; but whichever it was, the widow is not entitled to have them brought into the administration account, and to get her third of them; she is only entitled to a distributive share of the personal property belonging to her husband at the time of his death; donatio causa mortis, if valid, takes effect from the time of the donation, and not from the time of the death.
   By the Court.

The report of the auditor presents a single question, — is the widow of John Parthimer, deceased, entitled to a distributive share of a bond given to him by John Kendig, for five hundred dollars, and to a like interest in four hundred dollars of government securities, under the facts disclosed? The auditor reports that Parthimer, long before his death, had an arrangement with his two sons to give them these two securities for the use of themselves and the other children; that such gift had often been promised, as much as six or seven years back, but was never carried into effect until nine days before his death, and during his last illness, when he was probably in extremis, though whether that was known to himself does not appear. He then, by writing, under his hand and seal, indorsed on the bond, assigned it over in due form to G. W. and W. A. Parthimer, stating it to be for value received, and, at the same time, handed them over the ordinary bonds of the United States, amounting to $400; both securities were delivered, and remained in possession of the sons until after the father’s death. The bond of Kendig was afterwards paid to Augustus Parthimer, the administrator, and the government securities are still held by them, and both are claimed as gifts from the father in his lifetime. The auditor, in his report, finds that the obligations were gifts, as claimed, but whether inter vivos or causa mortis, he does not report. Exceptions were taken to the account by the widow, because the money was not brought into the course of administration. If the gift was valid and passed the title, the amount was properly left out of the administration account, as it formed no part of the decedent’s estate at the time of his death, but vested in the donees prior to that event.

It has every requisite to make it a good donatio inter vivos. The bond was formally assigned and delivered, the title to the instrument and right to receive the money passed thereby to the donee. The government securities were handed over, with proper words of gift, and the interest therein vested at once. No formal assignment of such obligations is ever made or required. They pass as money (2 Redfield, 309, 312; 1 Roper, 35). No words were used showing that the donation was conditional or the instruments to be restored in case John Parthimer recovered. We do not know what more could be done to make the gift valid, inter vivos. But it is said that every donation of property must be considered as causa mortis, provided it is given by a person when sick or in expectation of death from any cause, and the event proves fatal to the donor. Such gifts of chattels are said to be made by a person in his last sickness, or in periculo mortis, subject to the implied condition that if the donor recover or if the donee die first, the gift shall be void (11 Harris, 63; 3 Binney, 370). We are inclined to think that the gift should be treated as a donatio causa mortis or inter vivos, according to the intention of the donor as expressed at tire time or shown by all of his acts; and the fact of his not surviving should not be treated as conclusive that it was a donatio causa mortis; but some of the writers of undoubted authority speak of it as a legal presumption in the absence of any proof of actual intention'. Some of the facts connected with this gift would indicate that it was inter vivos, as agreeing to make it many years before, when the donor was in good health. On the other hand, the actual donation is postponed until he is in extremis. Yet there was no condition of revocation expressed in the gift (2 Redfield, 299). On the whole, if obliged to decide on the evidence submitted, we should say that these obligations passed as a donatio causa mortis. But as we understand the law, the question is immaterial. The widow can only recover her distributive share out of the personal effects of which her husband was possessed at the time of his death, remaining after paying his debts,” and such property as goes into a course of administration. This, if given away in his lifetime, never went into the hands of his administrator, for it is clearly settled in the United States by various courts, our own among the number, that the donatio causa mortis, if valid, goes into effect from the time of the donation, not from the death of the donor (1 Roper, 32; 2 Wh. 17).

Although a gift causa moHis may be revoked during the lifetime of the donor, it cannot be done by will, as that does not go into effect until after death (2 Redfield, 320, 321; 2 Wh. 17; Prac. in Chancery, 309; 3 Barlow’s Ch. 116; 3 Cavis, 121; 2 Gill & John, 209; 16 Ala. 225).

The position mainly relied on by the widow is that this gift was in fraud of her marital rights, made for the avowed purpose of cutting her out of her distributive share of her husband’s personal effects, and to show that such a meditated deprivation may be avoided, we are referred to Killinger v. Smith’s Administrator (6 S. & R. 531). The principles settled in that case have always been recognized as sound, but have they any application here? It must be borne in mind that the widow is entitled to dower out of any and all bonds whereof her husband was seized at any time during the coverture, of which she cannot lawfully be deprived, except by her own act or the due operation of the law fairly enforced, not brought about by fraud. In England and most of the States, she could not be cut out by a judicial sale, unless she had herself executed the instrument of deprivation in the mode prescribed. In Pennsylvania, lands were very early made chattels for the payment of debts. But for more than a century the wife was not considered as having a vested interest in her husband’s personal property in Pennsylvania. She could be deprived of her distributive share therein by will, until the passage of the act of April 11th, 1848. Under the statute she must claim through the administrator, can only demand distribution of what is left in the due course of administration. The donee’s claim by title is paramount. The gift took effect before death, and the property did not pass to the administrator. In Massachusetts, where they have a similar statute, Chief Justice Shaw says, in 13 Gray, 418, Such gifts, if confirmed and held good, do not impair the rights of the widow. Her right is to the property of which the husband died seized or possessed. These gifts have their full effect in the lifetime of the donor.” To construe our statute otherwise would be to deprive the husband of control over his personal effects during the whole of his married life; for if he could not give away a chattel on his deathbed without the consent of his wife, he could not do it at any prior period. It might, in all cases, be construed to have been given in fraud of her marital rights. The statute should not be considered as taking away the common law right of control beyond its letter. It is a recognized maxim that statutes shall be construed as nearly in consonance with the common law as the words will bear.

Gifts of property in fraud of creditors may always be avoided by the persons intended to be defrauded; but the wife here must claim through her husband, not paramount, as do creditors. She can only demand the effects, where the administrator could claim and demand them. Her title is through him to that which must be brought into a course of distribution.

The auditor made a proper disposition of the question, and his report must be confirmed.