Donaldson v. Raborg, 28 Md. 34

Donaldson v. Raborg

28 Md. 34 | Md. | 1868

Miller, J.,

delivered the opinion of this Court.

The first question to be determined in this case is, what matters are now, in view of the decision of this Court on the former appeals between the same parties, open for consideration ?

Those appeals were from an order of the Orphans’ Court, of the 26th of September, 1866, dii’ecting the executors of Donaldson to pay over to Catharine M. Raborg, as administratrix, d. b. n., of Christopher Raborg, “ the principal sum without interest” of $4228.76. The administratrix had, in June, 1866, filed a petition, alleging that Donaldson, the former administrator, d. b. n., of Raborg, stood charged with this sum as due the estate of his intestate, in his last adminis*52tration account, passed April 25th, 1837, and remained so charged therewith down to the time of his death, in Decemher, 1865, and praying his executors he ordered to pay it over to her with interest. To this petition, the executors, protesting their testator had duly administered the assets, and paid the distributees their shares, and reserving the right to, show the 1 fact of such payments thereafter, if their pleas should be held insufficient, pleaded three special pleas. One of which relied on limitations and lapse of time. Nothing was before the Court when this order passed, except the petition, the plgas, the two administration accounts of Donaldson, certain docket entries, and a petition of C. R. McClellan, filed in 1859, and the answer of Donaldson thereto, which will be more particularly noticed hereafter. Both parties appealed, the executors relying upon their pleas, and the administratrix insisting the order should have embraced interest on this sum from the 25th of April, 1837. In January, 1867, this Court delivered an opinion and passed a decree affirming the order.

The administratrix, then in February, 1867, filed another petition, praying the executors may.be “made to render an account of the assets received and the payments made by their testator,” under the 11th sec. of the 93d Art., of the Code, and in such account to charge themselves with interest on this sum to be calculated in such manner as the Court should think just and right. To this petition, the executors filed an answer, tendering an account and insisting their testator had fully administered the estate, and paid away in due course of distribution this whole balance to the parties entitled to receive it. .Testimony was taken on both sides, and on the 29th of May, 1867, the Court below passed an order rejecting the account tendered by the executors and requiring them to state another, charging ^ themselves with this sum and with simple interest thereon from the 25th of April, 1837. From this order both parties have now appealed.

It has been urged in argument by counsel for the administratrix that the affirmance of the first order irrevocably settles *53the question that the executors are responsible for the principal sum — that this is res adjudicóla — and yet they insist, at the same time, that the administratrix is not bound as to the interest. To this position we cannot yield our assent; for, in our opinion, it is very clear that if the affirmance of this order concludes the executors from now showing the principal had been paid away by their testator in due course of distribution, it is equally conclusive as to the claim of the administratrix for interest. It is established by a class of cases of which Young vs. Frost, 1 Md. Rep., 395; Hammond vs. Inloes, 4 Md. Rep., 164, and Thomson vs. Albert, 15 Md. Rep., 282, are instances, that a decision once made by the appellate court in the progress of a cause, or an order or decree affirmed by that Court, thereafter, “ becomes the law of the case ” in its further progress: that is it becomes the law for both sides and “ definitively settles the rights of the litigant parties.” The principle of those decisions is that neither party, in the further progress of the cause, can depart from the express terms of the affirmed order or decree, nor raise any questions which might have been raised before the order or decree appealed from, was passed. The order here affirmed is just as explicit that the interest shall not, as it is, that the principle shall be, paid over to the administratrix, and whilst the executors might then have relied on actual payment as a defence, she might also have then so framed her petition as to raise the question of interest. We think, however, the present case is not governed by those decisions, but rests upon entirely different grounds. In the first place we find nothing in the opinion of this Court on the former appeals indicating a purpose to debar the parties from raising the questions now presented, by further proceedings in the Orphans’ Court. In that opinion the Court treated the petition as an application made exclusively under the 72d. sec. of the 93d Art. of the Code, and after stating that there was no dispute between the parties about facts, and that the pleas admitted (as in express terms they did) that this sum of $4228.76 remained in Donaldson’s hands as administrator at *54the time of his death, addressed themselves to the question of the legal sufficiency of the pleas as technical bars to the proceeding and claim of the administratrix, and decided they were properly overruled. Then in reference to the claim for interest they say in the then aspect of the case that the Orphans’ Court had no power to award it; that if a preliminary proceeding had been instituted under sec. 11 of the same Article to compel the executors to render a further account of Donaldson’s administration, or if a prayer to that effect had been inserted in the petition then under consideration, interest upon proper proofs might have been made a subject of charge in such account and upon the balance thus ascertained including principal and interest, an order under section 72 would operate, but as no such preliminary proceeding had been taken, and no such prayer inserted, the Court below was right in refusing to award interest. We take this to be rather an intimation or suggestion that by further proceedings an accounting should be had under section 11, than a determination to the contrary. Perhaps the proper course to have been taken by the Court, was instead of affirming the order, to have remanded the cause with leave to amend the petition, and leave to the executors to answer. But however this may be, and whatever effect the affirmance of the order might have had to preclude the executors from setting up on their motion, by further proceedings, the defence now relied on, it is sufficient that the administratrix has herself, by further proceedings at her instance, asked the Court to compel the executors to discharge the duty imposed on them by the 11th section of our testamentary law. Under this section every administrator or executor of a deceased administrator, when rendering the account therein required, either voluntarily or by compulsion, whilst compelled to show the assets received, has the right to show • the payments and disbursements made by his decedent, and of this right thus conferred by statute, he cannot be deprived by any action or decision of the Courts. Upon this ground we distinguish the present case from those before cited, fully *55adopting the law announced in those decisions and doing no violence to the rule stare deeisis.

We must, therefore, proceed to consider the questions presented by this record unembarrassed by the decision on the former appeals.

First, we must assume that there are no unsatisfied creditors of this estate. The lapse of time from the death of Raborg, in 1815, and the passing of the two accounts in 1834 and 1837, and the fact that those accounts show payment in full of all claims of creditors then exhibited, and the lapse of time from that date to the filing of these petitions in 1866, without any such claims being presented, compel us to presume that all debts have been paid. Lark, et al., vs. Linstead and Heath, 2 Md. Rep., 420; Gardner and Hughes, exrs., vs. Simmes, a. d. b. n., 1 Gill, 425.

Another preliminary question is presented in the exceptions to the account proposed for passage. It is said that all the allowances therein claimed are based on alleged payments made anterior to the date of the last account, and thus contradict its admission that this balance was then due the estate. This objection is not in our opinion tenable. We have said, the executors when accounting under this 11th section, have the right to show payments and disbursements made by their testator. They are in the same position in which he would be placed if now living, and offering to pass an additional account; and it is the usual practice in stating a subsequent account, to claim and have allowed payments not credited in the previous one, though made prior to its passage. But this is the case of payments claimed to have been made to distributees, and there is the stronger reason for their allowance, because there is nothing in our testamentary system expressly directing a distribution account in all cases to be stated, or distribution made in the Orphans’ Court, or under its direction. The law says, after debts are paid, “ the administrator shall proceed to make distribution” to the next of kin, and in case the surplus consists of property, in specie, and “ he cannot satisfy the parties,” he may have them summoned and *56distribution made under the Court’s direction, or the property-ordered to be sold, (Code, Art. 93, sec. 138,) and he may appoint a meeting of persons entitled to distributive shares, or legacies or a residue, and make payment or distribution under the Court’s direction and control. Code, Art. 93, sec. 143. Ordinarily it would be safer for an administrator to pursue the course pointed out by this latter section, but there is no express command of the law that he should do so. The duty is cast upon him, in the first instance, to ascertain who the distributees and persons entitled are — he administers the estate in pais, (4 Md. Ch. Dec., 450,) and if he pays the right parties their proper shares he is protected, whether it is done under the sanction of the Court or not, and it makes no difference whether such payments be made before or after the passing of an account, showing the balance for distribution. Such payments, where estates are solvent, are frequently made before such an account is passed, and in some cases an administrate!' will be compelled to make them. Code, Pub. Gen’l Laws, Art. 93, secs. 140, 141.

The main question in the case now presents itself — has this surplus apparently due the estate, by the account of the 25th of April, 1837, been paid, to the persons entitled to receive it? In order to determine this we have to examine the transactions and dealings of a deceased administrator with this estate and those interested in it, extending over a period of seventeen years, the last of which took place nearly thirty years before the first of these petitions was filed; and this is to be done too after the death of all the active participants in those transactions who, if alive might have aided us with their testimony in. arriving at the truth. There is submitted for our inspection a large number of papers consisting of deeds, mortgages, receipts, accounts, and proceedings in chancery and in insolvency, some of which cannot, at this late day, be satisfactorily explained, and about which, in some particulars, theories and inferences on either side niay be true. It is however clear that in 1837, and long prior to that time, all the *57parties then entitled to claim this whole surplus, were of full age, laboring under no disability, and lived all of them for at least seventeen years thereafter, and during all this period no steps were taken by any of them to assert claim to this money. In the former case this Court said that neither laches nor limitations can strictly apply to the administratrix, because her petition was filed in June, 1866, soon after letters were granted to her (until which time her right of action had not accrued) and but a short time after the death of Donaldson, in December, 1865; and all that was stated in that opinion as to the administrator being a trustee for the next of kin, was said in view of the controlling admission then made that this money was in Donaldson’s hands as administrator unadministered at the time of his death. But as now presented this is not the case of an 'admitted possession and non-distribution of this money, thereby making a continuing trust where the * possession of the trastee operates no bar, because such possession is all the while according to his title, and where an administration ch bonis non was necessary in order to pass the title to the money to the distributees. The defence now relied on goes behind the title and claim of the administratrix and asserts that Donaldson paid this surplus to the persons entitled to receive it, thus raising purely a question of fact in the solution of which the distributees and the executors of the administrator ai-e alone interested. In dealing with the evidence as applicable to this issue wre are at liberty to, and, under the decision in Ridenour, et al., vs. Keller, 2 Gill, 145, must, consider lapse of time, acquiescence and laches, and give full effect to every presumption which the law allows, and draw every reasonable inference in favor of the due discharge of his duty by the administrator. We may here also remark that when the former decision was made it did not appear who the distributees were, or that they had made any disposition of their respective shares, and in short none of the facts and evidence now shown and presented were 'then before the Court.

*58The record now shows that Raborg died in 1815, leaving a widow and eight children, most of whom were then of age and all became so, long prior to 1837. He left a large real and considerable personal estate, and was at the time of his death a partner with his son Christopher in the firm of C. Raborg & Son. Administration on his estate was granted shortly after his death, to his two sons, Christopher and William. Donaldson’s connection with the estate commenced in 1820, when by an agreement signed by the widow and seven of the children, he was appointed their agent to settle up the personal estate and the affairs of the partnership. About the same time proceedings for the sale of the real estate were instituted under the Act to direct descents. In 1823 the administrators were removed. On the 5th of June, of that year, Donaldson was appointed administrator de bonis non, and some time thereafter brought suit on the bond of the former administrators. The 'net amount ($14,822.55) recovered in this action rendered necessary the passage of his second account in April, 1837, for by his first account passed in July, 1834, he had over paid the estate. When that suit was instituted is not shown, but the judgment was not recovered until April, 1836, and was probably not paid until shortly before the passage of the second account.

It is insisted on the one side, and denied on the other, that the shares of Christopher and William, the defaulting administrators, in this prospective surplus were considered and allowed by the referees in making up the amount for which this judgment was rendered. The suit was against the administratrix’ of William Raborg, a surety on the bond, who was admitted in argument, to have been a brother of the intestate. The award for $15,000 was made in April, 1836, Donaldson himself being one of the referees. It is said there was no plea of set-off, and that the referees acting under a mere “ rule of reference” could not with propriety have considered these prospective shares. We are not furnished with the pleadings *59or any other part of the record except the award, but we see no difficulty, even without such plea, in the allowance being made, if it had been asked for, and not objected to by Donaldson. It would certainly be very unreasonable to suppose that these parties would have allowed a large judgment to be recovered against the estate of their deceased uncle for their default, without making an effort to diminish the amount by giving up their shares in whatever surplus might remain for distribution from the proceeds of the judgment; and it would be still more unreasonable to suppose that those who represented the uncle’s estate would not have insisted on this allowance, or that Donaldson, the trusted and confidential friend, agent and professional adviser of all the parties, who must have been familiar with the estate and the debts to be paid, and therefore knew what the surplus would be, and could easily have calculated the precise amount of these shares therein, would have objected. But for more than thirty years no claim to a share in this surplus was ever made by either of these sons, or by any one claiming to represent either of them, or the creditors of either. From this lapse of time and laches, if any right existed, and from all the circumstances of the case as disclosed by the record, we think ourselves justified in sustaining the position taken by the counsel for the executors, that these two shares were allowed and settled in the amount for which this judgment Avas rendered. It may be obseiwed also, as to the share of Christopher, that by the agreement of 1820, he was to be alloAved $20 per Aveek, until the administration of the personal estate was closed, or until circumstances may render sxich Aveekly payments unnecessary or improper, on account of his part of said estate being exhausted, and Donaldson Avas authorized to make these payments from moneys arising either from the estate or the copartnership concern. If any portion of this sum Avas paid him out of the personalty, (about which there is no proof either Avay,) his share must have been exhausted long prior to this judgment.

*60The shares of the widow and the six other children, both in the real and personal estate, became, by various conveyances executed prior to 1832, vested in David W. B. McClellan and in his brother, Samuel McClellan, who had married Eliza, one of the daughters. The shares of the widow and two children were conveyed to David absolutely; two other shares were conveyed to him in trust for the benefit of Mrs. Eliza McClellan (who died in 1830) for life, and after her death in trust for her children; he was also assignee of a mortgage of another share belonging to Mrs. Rachel Wagner. The remaining share was conveyed to Samuel in trust for the benefit of the grantor for life with such limitations that, after 1830, by reason of the deaths of the other parties interested, the beneficial interest in the whole remainder after the life estate of the grantor, became vested in C. R. McClellan, the eldest son of said Samuel and Eliza.

Wc have examined these conveyances and are of opinion » that under them, the two McClellans, David and Samuel, were entitled to receive, and the administrator was authorized to pay to them, this entire surplus. It is evident, Donaldson himself supposed he was entitled to regard them as owners, not only by his dealing with them as such, but from the fact - that the originals of all these conveyances were found amongst his papers; they must have been given to or procured by him as evidence of the title of the McClellans to the fund.

But it is argued that David cannot be treated as assignee of the share of Mrs. Wagner. It appears she and her husband mortgaged all her interest in her father’s real, and her distributive share of his personal estate to Miller & Craig, to secure a debt of $2921.53, with interest from July 7th, 1818; this mortgage was executed in September, 1818, and no time was limited in it for payment of the mortgage debt. In March, 1825, Miller & Craig assigned this mortgage to Robert Oliver, who, in August, 1826, assigned it to the said David: This latter assignment recites payments on the mortgage debt to the amount of $1356.55, out of Mrs. Wagner’s share of the *61proceeds of certain specified real estate theretofore sold, and it is urged we must presume the balance to have been paid out of her share of the proceeds of the other real estate. The mortgage however was never released, and most of the sales of the real estate subsequent to those recited, were made in October, 1825, prior to the date when it was assigned for value as an open outstanding mortgage. No auditor’s account distributing the proceeds of subsequent sales is shown, and it no where appears that any part of the proceeds of such sales-was ever paid to either of the assignees of this mortgage on account thereof. Besides this there remains the long lapse of nearly forty years, during which, Wagner and wife, laboring under no disability, made no claim against either the assignee or Donaldson, but left this mortgage outstanding and unreleased to pass into Donaldson’s hands as evidence of David W. B. McClellan’s title to claim under it the wife’s share in this surplus. Under these circumstances we think Donaldson is entitled to protection if he paid her share to the said David.

It remains then to be decided whether Donaldson paid and settled with the two McClellans this surplus. To determine this, we must look to the transactions between these three parties, and to the documentary and other evidence produced on this subject. It is unnecessary and would be impracticable to set out in this opinion all the details of these transactions; we can only state some prominent facts and the conclusions at which we have arrived. The dealings were complex and numerous, and some of the papers, as we have said, cannot now be satisfactorily explained. They clearly show, however, that the most intimate, friendly, business and professional relations, existed between all these parties, and it is impossible for any one to read this record, without having the conviction forced upon him that each of the two brothers, Samuel and David, was perfectly cognizant of every business transaction of the other.

David was the principal creditor of the Raborg estate, and as such was paid by Donaldson as administrator over $16,000. *62In May, 1827,- being then the owner in his own right of one share and assignee of Mrs. Wagner’s mortgage of another share, he executed to Donaldson an assignment (not recorded but found among his papers uncancelled) of all his. interest in Raborg’s estate real and personal, both as assignee of creditors and of the heirs at law or some of them, and the creditors of such heirs, to secure advances theretofore made to him by Donaldson to the amount of $7451.46 and to secure any •advance thereafter to be made. In June of the same year he executed a mortgage of real estate to Donaldson to secure a note of $1000 endorsed by his brother Samuel, with privilege of renewal, as long as Donaldson might think proper to continue the credit.

On the 25th of April, 1832, he gave a receipt to Donaldson as administrator of Raborg, for $1500, stating this sum was paid by Donaldson to him as assignee of the widow and all the named children including Wagner and wife, whose shares he then held. In explanation of this there are offered on the other side two papers, one a list of the creditors of Samuel McClellan and Geo. H. Seckel, who appear to have been discharged under the insolvent laws in 1816, the other an assignment and transfer under seal dated January, 1832, by most of the creditors of this firm, of all their claims to the said David, provided he would before the 1st of May then ensuing “deposit” in Donaldson’s hands the sum of $1500 to be divided by Donaldson ratably amongst said creditors; and appended to this is Donaldson’s acknowledgment dated the 25th of April, 1832, that he was in possession of the $1500 referred to in this, transfer. It is said first there is no evidence that Donaldson paid this money to the creditors. Looking to the testimony of Ward as to the calculations made on the list of debts of the dividends due to some, and the per centage to all, and in the absence of all proof of any proceedings instituted by any of these creditors against Donaldson, from that day to the present time,, we could not assume he has not paid them. But assuming he never did, *63this fact would by no means destroy or impair the efficacy of this receipt. By this arrangement, that is, by authorizing Donaldson so to apply $1500 of the moneys then, or thereafter coming to him as assignee of these distributive shares, and giving this receipt, David obtained what he bargained for from these creditors — he became the transferee of claims against this firm to an amount exceeding $30,000 — and by the terms of the transfer Donaldson was to distribute the money, and the creditors were bound to look to him for payment of their dividends. Upon the execution of these papers the title to the claims passed to David, and the money was in the hands of Donaldson for the use of the creditors who could have collected it from him. There was, therefore, a full and valid consideration for this receipt as between David and Donaldson whether the latter ever actually paid the money to the creditors or not. Again it is said Donaldson must have paid or retained to himself as administrator, the dividend due under this arrangement to the “ Raborgs ” who appear on the list as creditors to the amount of $19,289.53 and would therefore be still responsible for such dividend. The answer to this is that the transfer is signed, amongst others, by “ Charles E. Mayer, trustee of creditors of C. Raborg.” There is no other claim on the list of creditors save that of the “ Raborgs ” to which this signature is applicable, and as it thus appears Mr. Mayer was authorized to represent this claim in executing the transfer, and thereby became one of the contracting parties in this arrangement, he was entitled to receive the dividend due thereto. This receipt being, therefore, a valid acquittance to Donaldson, his executors are entitled to a credit for the $1500 in their account.

In October, 1832, David executed another mortgage to Donaldson, to secure notes amounting to $8000, drawn, some in favor of David and others in favor of Samuel. In May, 1834, and July and August, 1836, mortgages were also executed to him by Samuel, to secure notes to the amount of $8000. On the 13th of April, 1837, twelve days before the *64passage of the second administration account, Mr. Neilson, at the mutual request of Donaldson and Samuel, made a “rough statement of an account” between them, embracing “the amounts received by said Donaldson, as agent on account of the real and personal estates of C. Raborg, and of the firm of C. Raborg & Son,” for the purpose of having the balance due Donaldson (shown by the account to be $29,723.78) secured by mortgage. On the 19th of April, 1837, Samuel executed a mortgage to Donaldson for $24,953.53, which recites that “upon a settlement of all accounts and reckonings between the parties ” this sum was found due the mortgagee; and on the same day, Donaldson executed to Samuel, who, by deed from David, of July, 1835, had become the owner of the equity of redemption in the property 'covered by the two mortgages previously given by David, a release of those mortgages, in which it is recited that all the notes intended to be thereby secured, and all other notes substituted for them “have been cancelled.” Six days after this, the account of the 25th of April, 1837, was passed; and we find that a formal receipt in full and release to himself as administrator, was prepared by Donaldson to be signed by David, as assignee of the widow and children, of their several distributive shares of the personal estate of the late C. Raborg, deceased. This paper was never signed and is not dated, but is in Donaldson’s handwriting, and from an inspection of it, and from' the figures and calculations made upon it by Donaldson, showing the exact net proceeds of the judgment with which he is charged in his second account, we have no doubt it was prepared cotemporaneously with this settlement and the passage of this account. ‘

We have examined with care all the papers and evidence relating to the settlement thus shown to have been made shortly before this account was passed, with all the light thrown upon them by the able and ingenious argument of counsel, and have come to the conclusion that in the settlement then made all the remaining liability of Donaldson to *65David and Samuel McClellan, as assignees of all the distributees of this surplus, was considered, included and settled; that David not only knew, but assented to and took part in it, or authorized his brother Samuel to act as his agent and represent his interest in making it. In this conclusion, w’e are fortified by the fact that neither David nor Samuel, though they lived, the former for seventeen and the latter for twenty-one years after this settlement was made, nor any one representing either of them, or the creditors of either, ever made any claim on Donaldson for these distributive shares thus held by them partly in their own right and partly as trustees. During all this time they were prompted to the assertion of such claim, if any existed, not only by their own interests, but by the demands of duty as trustees, bound to protect the interests of their cestuis que trust.

We can discover nothing in the subsequent proceedings of Donaldson in foreclosing the mortgage of Samuel, nor in any part of the evidence to warrant the inference, that in making this settlement in 1837¿ he was himself guilty of any breach of trust, or cognizant of any such breach on the part of those with whom he settled. Samuel McClellan did not apply for the benefit of the insolvent laws for more than a year thereafter, and appears to have then been the owner of a large amount of real property; and there is nothing to show that David was not perfectly solvent during his whole life.

By the record on the former appeals it is shown that in October, 1859, after the death of his father, C. E. McClellan, the eldest son of Samuel and Eliza McClellan, who was of full age in 1837, and whose interest has already been stated, filed a petition averring he was entitled to a share of this surplus, and praying that Donaldson might be ordered to pay it over to him. Donaldson answered this petition in November of the same year, and there the case ended. Comment has been made on this answer as being in its statements inconsistent with the defences now set up by his executors. We do not perceive any glaring inconsistency between what Donaldson *66then said and what his executors now assert. "What, in effect, he then did say is, that more than twenty-two years ago he paid and settled this entire residue to and with Samuel McClellan, who represented himself to be fully authorized by the petitioner and his other children, and by all other representatives of the estate, to receive from him their proportions of this residue; and that he is under the very strong impression said Samuel showed him written authority so to pay and settle said amount; that he made this payment or settlement with said Samuel in the full confidence that he was empowered as aforesaid; and he positively avers that said Samuel did promise to obtain from said representatives formal releases of their claims for their respective shares of said residue and this respondent did prepare and deliver to said Samuel releases to be executed as aforesaid. This answer appears to have satisfied the petitioner, and the fact that the proceeding was then suffered to drop, materially strengthens the conclusions already stated in favor of the executors.

Had the transactions disclosed by this record been of more recent origin, our conclusions on some points in regard to them might have been different. But we have in our investigations and in making up our judgments on the facts, considered this as a case to which the views expressed by Judge Archer, in Stiles, et al., vs. Brown, et al., 6 Gill, 356, are eminently applicable. In that case much less time had elapsed ' than in this, and yet the Judge says: “ In our enquiry into this question we cannot forbear to remark that the account now sought at the hands of the defendant is of transactions not of recent origin, but of an antiquity, which if it do not in point of law subject the party to be visited with all the consequences of laches, yet necessarily subjects his case to a severer scrutiny and the defendant’s evidence to a more indulgent consideration. The time too at which this claim is sought to be enforced, several years after the death of the party with whom the transactions were had, who if living, it is reasonable to believe might have explained what at this distance of time *67has thrown difficulties over the transactions complained of; and the failure daring the life time of the defendant’s intestate to institute this proceeding, are circumstances calculated to throw suspicion over the claim of the complainant and in a doubtful ease would strengthen the defences which might be set up in behalf of the defendant.”

(Decided 14th January, 1868.)

The views we have expressed necessarily dispose of the claim for interest. The executors are entitled to have their account passed and admitted to record. The order appealed from will be reversed and the cause remanded to the Orphans’ Court with directions to rescind their former order of the 26th of September, 1866, and to admit to record the account rendered by the executors and accompanying their answer in this case. This Court has full power over the question of costs in such cases, and inasmuch as the administratrix is acting merely in a representative capacity, and as the executors ought to have presented these defences at an earlier period they will be required to pay the costs in both Courts.

Order reversed and cause renwjnded, eosts in both Courts to be paid by the executors.