Stewart's Appeal , 86 Pa. 149 ( 1878 )

Mr. Justice Sharswood

delivered the opinion of the court,

This record shows that there was an adjudication by the court April 3d 1876, on the final account of the appellant, when , it was confirmed nisi, on payment of clerk’s costs, and the costs were then paid. The third rule of the court prescribed that if exceptions are not filed on or before the third Saturday following, the adjudication shall then become absolute. The exception of Annie Dearing was filed on the 10th of April, but was withdrawn April 24th, which was the same as if none had been filed, and the adjudication then became absolute. In other words, it was a final decree. The Act of October 13th 1840, Pamph. L. 1841, p. 1, provides the mode in which such final decrees shall be reviewed upon a petition of review presented by any person interested, alleging errors in the account and setting forth such errors specifically, verified by oath or affirmation, with this important and necessary limitation : “ Provided, that this act shall not extend to any cause where the balance found due shall have been actually paid and discharged by any executor, administrator or guardian.” There was no formal petition of review filed in the court, but we are disposed to regard the exception of William M. Charlton, filed April 27th, though not verified by oath or affirmation, as sufficient, as it was not demurred to, and the court proceeded to review or rehear'the account. There is on the paper-book a petition by W. M. Charlton for a rehearing, sworn to May 13th, and endorsed by one of the judges, “ April 27th 1876, audit and adjudication opened.” December 2d 1876, the first exception of Charlton was sustained, and on the 8th of December a corrected adjudication was filed. In the meantime, however, and pending these exceptions, and after the adjudication of April 3d was opened, the record shows other proceedings. On the 6th May, Mary Ann Conrad, the distributee, to whom the balance in the hands of the appellant had been awarded, under the decree of April 24th, presented a petition, setting forth that of the award of $2351.56 she had received from the appellant $1850, and praying that the balance, after deducting court costs, should be paid to her. Whereupon, on the same day, an order was made directing the administrator, the appellant, to pay to the petitioner the balance of $488.16, on or before Saturday, May 13th. 1876.

A more irregular and inconsistent record has rarely been brought up to this court for review. By the Act of April 14th 1836, sect. 4, Pamph. L. 276, it is provided that in all cases of appeal from the Orphans’ Court, this court shall hear and determine the same as to right and justice may belong, and refer the same to auditors, when, in their discretion, they may think proper. And, again, by the Act of 16th June 1836, sect. 2, Pamph. L. 683 : “ It shall be the duty of the Supreme Court of this Commonwealth, in all cases of appeals now made or that may hereafter be taken from the decrees of the several Orphans’ Courts, to hear, try and determine the merits of such cases, and to decree according to the justice a,nd equity thereof.” Upon the record in this case it is impossible to decide according to the justice and equity of the cause. The most material fact, whether the appellant had actually paid the sum awarded, or any part thereof, to Mary Ann Conrad, before notice of the application for a review, does not appear, though there is a solemn admission by her on record that she had received a large part of it. We might refer the case to an auditor, but in the present state of our business we consider it most expedient to reverse the decree and remit the record to the court below for a further hearing. If the sum or any part of it was actually paid over according to the decree, before notice of the application for a review, both the express provision of the Act of 1840 and the plain dictates of justice and equity require that the appellant should be protected.

Decree reversed and record remitted to the court below for a further hearing.