Osborne's Estate , 149 Pa. 412 ( 1892 )

Per Curiam,

The only specification of error is, that the court below erred in not making absolute the rule to show cause why the decree awarding the real estate to Eliza J. Craft should not be set aside. The real estate was awarded to her by the orphans’ court on March 5, 1890, and on the following day her sureties were approved, and recognizance taken and acknowledged in open court. The petition of John W. Osborne, upon which the rule in question was founded, was not presented until Sept. 7, 1891. After this delay it would have been an abuse of discretion in the court below to have vacated its order of March 5, 1890, except for a fraud practiced upon the court or the parties. There was neither in this case. There was no imposition practiced upon the court, nor had the petitioner any legal ground of complaint. He had every opportunity to protect his own interest, and Eliza J. Craft, the appellee, had an equal right to protect hers. In her answer she denies every material averment in the petition. Had this application been made promptly, and had it been accompanied with an offer to give security that the property should bring $1,200 over the amount of Mrs. Craft’s bid, it is quite possible the court below would have set aside-the order awarding the property to the appellee. This, however, is a matter largely in its discretion, and the learned judge may have been satisfied that the offer came from an irresponsible person. Of this we cannot judge. If the fact be, as alleged, that Mrs. Craft had not the means to take the property at her bid, she had a right to procure the money from others, either by a mortgage or sale of the property. Were it otherwise, an heir without means could not protect her interest as against the other heirs. In this instance all of the heirs had the opportunity to bid, and anjmne of them taking the property would have the right to sell it the next day to any purchaser he or she could obtain, and at any price that could be realized.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.