Armstrong's Appeal

68 Pa. 409 | Pa. | 1871

The opinion of the court was delivered,

by Agnew, J.

The assignment of errors in this case is entirely defective. It is not a1 good assignment of an error to say that the court overruled the first exception, without setting out the exception itself. Pleadings are as essential in a court of error as in the court below. The assignments of error serve the same purpose in the former as a declaration in the latter; to place in the record and before the court the very issue to be determined. Hence the plaintiff in error, by his assignment as it is termed, declares, in the record itself, what error it is he complains of. To this the defendant replies in nullo est erratum, or any other plea which he chooses to rely upon. For instance he might reply a release of errors, or the Statute of Limitations of seven years to taking out a writ of error. I should not have thought of mentioning what every lawyer ought to know, but for the surprising fact brought out in a case before us last week, that it is a common practice in this district to file no assignments of error of record, but to argue the case upon those contained in the printed paper-book. The paper-book is no part of the record, but a convenient mode only of presenting the case for the consideration of the judges. We might therefore refuse to consider any of the errors attempted to be assigned in this case, but we shall proceed to notice one of grace and not of right.

We think the auditor and court below erred in surcharging the administrator in his account with the sum of $1346.68, money which never came into his hands, but which it is supposed he ought to have made by the sale under the order of the Orphans’ Court. The accountant sold the real estate of the decedent under an order of the Orphans’ Court of Lancaster county, upon proceedings in partition among the heirs who had refused to accept the. premises. The sale was regularly made, returned and confirmed; no exceptions having been made to it by the heirs. Mrs. Armstrong, the wife of the administrator, became the purchaser at a fair and open public sale. The auditor finds that the transaction was perfectly fair and without fraud. The legal disability of Mrs. Armstrong as the wife of the administrator to become the purchaser at her husband’s sale, is the only ground upon which the surcharge took place. But the question of trust in her purchase is not an element in the present case. This is an attempt to surcharge the administrator in the settlement of his account and not to recover the property or set aside the sale. There" being no actual fraud, and the sale having regularly passed through the Orphans’ Court and been confirmed by it, the price obtained for the property has been judicially ascertained. The heirs were parties to the proceeding, and directly interested in it. The sale was the act of the court, the administrator being only the hand of the court in making it. It was therefore wholly within the power of the court, and could be set aside upon their exception and even upon an offer of a higher bid for the property. This is definitively settled in Demmy’s Appeal, 7 Wright 168, and Hays’s Appeal, 1 P. F. Smith 58. Indeed we decided last winter in Philadelphia that a sale confirmed might be opened for a higher bid in the discretion of the court, taking care to make the purchaser whole for any loss sustained: Brown's Appeal, antea, p. 35. The reasons are so well set forth by Justice Strong in the cases above cited, nothing more need be said on this point. Such a sale as this differs wholly from the case of a sale by an executor or trustee under a power contained in a will or deed. Hence the case of Dundas’ Appeal, 14 P. F. Smith 325, referred to by the auditors, is inapplicable, no confirmation by the court being necessary in a sale under an express power. But even in that case we held the power of the Orphans’ Court under the jurisdiction conferred in the Acts of 1832 and 1836, was adequate to the correction of irregularities in such a sale. As to the conclusiveness of the decrees of the Orphans’ Court nothing need be said. The books are full of cases, especially modern decisions, establishing this principle. The report of the sale by the administrator and of the price brought by it, followed by confirmation by the Orphans’ Court, conclusively establishes, in the absence of fraud, the sum with which the administrator shall be charged; otherwise he would be left wholly unprotected, and compelled years afterward on a settlement of his account to defend the sale, when witnesses may be absent or dead, and the evidence lost.

The decree of the Orphans’ Court is therefore reversed as to this item of surcharge of $1346.68 — the surchage stricken out of the account, and the record remanded to the Orphans’ Court with directions to proceed according to law; and the costs of the appeal are ordered to be paid out of the estate.