Dreisbach's Appeal , 17 Pa. 120 ( 1851 )

The opinion of the court was delivered by

Black, O. J.

We are of opinion that where a person who is both an heir and an administrator of the same intestate takes land at the valuation, and there is a balance in his favor on final settlement of the personal estate, the Orphans’ Court which has decreed that he shall pay for the real estate and that he shall receive the sum due him on his account, may order one of these debts to be set off against the other, upon a petition being presented which sets forth such facts- as show that the lands are still bound for such balance. The court below, therefore, in dismissing the petition for want of general jurisdiction over the subject-matter, did so for what we think an erroneous reason.

But, under the circumstances of this case, it was necessary that the petition should contain something more than the mere bald statement of the amounts due respectively on the recognisance and on the account. The intestate died in 1833. His debts were liens on his land for seven years. The administration account was filed and confirmed in 1846. It is manifest, from these dates, that the balance in favor of the accountant may have been produced by credits for the payment of debts whose liens on the land have expired long since. Such, indeed, is the presumption of law, in the absence both of allegation and proof to the contrary. If the fact was otherwise the petition should have particularized the debts, described their nature, and set forth the acts by which their liens had been continued. This not having been done, the record before us discloses no case which entitles the plaintiff to the relief he has asked for. The decree of the Orphans’ Court, dismissing the petition, is therefore affirmed.

Decree affirmed.