127 Pa. 420 | Pa. | 1889
No. 371.
Opinion,
The account of Dr. Joseph Priestley, which is the cause of the present contention, was confirmed absolutely December 6, 1882, and on. the lltli day of the same month he was discharged as trustee by the court on his own petition. Pie died on March 10, 1888, and letters of administration were granted to Hannah PI. Priestley, the appellant, on March 28,1883. More than four years after Dr. Priestley’s death, Mrs. Rodrigue, the appellee, presented the petition in this case for a review of his account as trustee. The whole contention was about a matter of commissions, the trustee having charged $1,522.24, being two per cent upon the money passing through his hands for a number of years. It was alleged that for a number of those years Dr. Priestley did not actually receive and disburse the money, owing to differences between himself and Mrs. Rodrigue, which it is not necessary to refer to in detail; that during this time he refused to act as trustee, or to have any business intercourse with his cestui que trust, and the money was paid by S. P. Wolverton, Esq., the administrator, directly to Mrs. Rodrigue. The receipts therefor were taken in the name of Dr. Priestley as trustee. The court referred the petition to an auditor, who took a large amount of testimony, resulting in the granting of the review, a subsequent re-statement of the account, with a decree of the court below reducing the commissions to $930.84. The principal question raised upon this appeal was the propriety of granting a review. This underlies the entire case.
After a man has been dead for four years, and more than four years after the confirmation of his account as trustee, the reasons should be weighty to induce a court to grant a review and open the account to further litigation. Especially should
It was urged, however, that a review is a matter of right under the act of October 13, 1840, P. L. [1841] 1, if applied for within five years, and that in such cases no question of notice or laches arises. If we concede the truth of this position it does not affect the case. I have not referred to those matters for the purpose of showing that they would bar the right to a review within five years. It is not necessary in this case to decide such a point or discuss it at length: where, however, there has been laches, and the party complaining had both legal and actual notice of the' filing of the account, it would be a persuasive reason why a court, exercising equity powers, should move slowly, and see that the case clearly comes Avithin the act of 1840, and refuse it altogether where the application is ex gratia.
It has been ruled, in a line of eases, that an account settled and confirmed can only be revieAved for error of law apparent on the face of the record, or for new matter Avhich has arisen since the decree. As a matter of grace, a review may be granted for new proof, discovered after the decree, which proof could not possibly have been used at the time when the decree was made : Story’s Equity, § 104; Riddle’s Est., 19 Pa. 431; Russell’s App., 34 Pa. 258; Hartman’s App., 36 Pa. 70: Milligan’s App., 82 Pa. 389; Scott’s App., 112 Pa. 427. This
It follows, from wbat lias been said, that when Mrs. Rodrigue presented ber petition for a review of Dr. Priestley’s account, it was competent for the court below to examine the entire record; and if it had appeared from the will of Hugh
The learned judge below evidently relied upon Simpson’s App., 18 W. N. 175, as authority for granting this review. An examination of that case, however, discloses the fact that there was one, if not two, errors of law apparent upon the face of the record. The account as guardian was prematurely and illegally filed, and the balance decreed to Mary Y. Simpson was not coming to her, under the terms of her father’s will, at the time the decree was made, and might never have been due her. It follows that the review in that case was strictly in accordance with our construction of the act of 1840. The review in this case was a departure from Milligan’s Appeal, Scott’s Appeal, and the cases cited.
The decree of the court below, granting a bill of review, and all proceedings subsequent thereto, are reversed and set aside at the costs of the appellee.
Opinion,
This was an appeal from the same decree as Priestley’s Appeal, just decided. In the latter appeal, we reversed the order of the court below granting a review of the account, and all the subsequent proceedings. The effect of this is to restore the confirmation of the account in controversy. The court below awarded $980.34 to the accountant as commissions, which, together with some other small credits, left a balance due the accountant of $1,042.50. This allowance is assigned for error upon this appeal. All that was said in Priestley’s Appeal is applicable here. The question is precisely the same, and it appears that neither party was satisfied with the decree of the court below. The reversal of the decree in Priestley’s Appeal necessarily requires its affirmance in this appeal.
The decree is affirmed upon the appeal of Ephraim Cutter, administrator, and the appeal dismissed at the costs of the appellant.