| Pa. | Jan 31, 1876
Judgment was entered in the Supreme Court,
— This is .by no means a clear case. The inclination of the coui’t is to hold that a ship on the stocks, and while under the law of this state, before reaching her proper element and coming under the dominion of admiralty law, differs not from other kinds of personal property ;■ and therefore no title papers before completion and delivery are necessary, unless otherwise provided for in the contract. This was so held in the case of Scull v. Shakspear, 25 P. F. Smith 297, in relation to the lien of materialmen and mechanics under a law of the state. But the existence of a different view in the English courts made this a question of some doubt, and counsel might well have advised under uhis adverse view. The insolvency of the builder, the want of funds to complete the large payments made by the parties contracting for the vessel, the necessity of continued control of the ship-yard, the responsibility necessarily incurred by the executor in undertaking to finish the vessel,- and the uncertainty of price a public sale would bring, all united to make it a case of great Uncertainty and doubt as to what would be the course to be pursued, which would be for the best interests of the estate. In this state of the case, the executor having acted under the advice of counsel, and upon the opinion and advice of a large number of the creditors of the estate (which was insolvent), it would be a harsh judgment to visit the executor with a surcharge, because he had not offered the unfinished hulk at public sale. The finding of the auditor, and the confirmation of the court, that the executor had acted wisely and for the best interests of the estate, ought not to be overturned in a case of so much doubt.
Decree affirmed with costs and appeal dismissed.