2 Watts 314 | Pa. | 1834
The opinion of the Court was delivered by
The settlement, by the executors, in 1809, has reference to the inventory, and the balance of 1073 dollars 12 cents found in their hands is stated to include the accounts due to the testator from the several legatees, “ as entered on the inventory.” It is said the inventory was not produced on the trial; nor does it appear, from the statement given of the evidence, that it was. On the face of the administration account, as stated on settlement, the executors are charged with the amount of the inventory, without giving the items contained in it; and there is no other charge in the account which embraces the charges in the book of the testator against the legatees; so that, from the face of the account itself, as stated and confirmed by the orphan’s court, it does not appear whether they charged themselves with interest or not on the 60 pounds. It is unnecessary to decide whether it was proper or requisite that the executors should have made a return, in the inventory, of the accounts charged in the book of the testator against his children, and again have charged themselves with them in their administration account. But I am inclined to think that the testator never intended these accounts should be paid by his children, but merely that they should be deducted out of that portion of hip estate, which would ultimately be coming to them respectively, according to the distribution which he designed to make of it; and if such charges or advances to any one should happen to exceed his proportion, it was not intended that the surplus should be paid by him, but that it should merely preclude him from receiving any more of the testator’s estate. In short, that the charges were considered by the testator in the nature of advances made by him to his children respectively, and not as debts for which they were to be accountable at any future day, and to repay to him or any of his representatives in any event whatever. Entertaining this opinion, I think it would have been as well, if not better, had these charges been left out of the administration account. But, since the executors have adopted the mode they did, of bringing these accounts, found in the book of the testator against the children, into their administration account, and charging themselves with them, as if they were part of the testa
But whether the inventory was produced or not, I still think the court below erred in directing the jury that no interest ought to be charged in this action against James Wireman, the plaintiff below, on the 60 pounds previously to the settlement in 1809. For whether the executors charged themselves with interest on that sum or not, James Wireman is chargeable with it in making distribution between him and the other legatees according to the express directions of the testator as contained in the will and the book of accounts, when taken in connection, as they must be, in order to get at the wish and design of the testator. I do not consider that charging James Wire-man with interest on the 60 pounds- will in the least affect or change the decree of the orphan’s court confirming the administration account of the executors as stated. That decree must stand. I consider it conclusive as to the amount with which the executors are chargeable, unless, perhaps, fraud could be shown. But it cannot be looked on as binding or conclusive with respect to matters not involved in it at all, upon which the court never passed. Now it is manifest that the distribution to be made of the balance of the testator’s estate found in the hands of the executors, and in what proportions it should be paid to each of the legatees, are matters not embraced in the decree of the orphan’s court: no .decree on this subject was made; nor was the court required to make any such. Indeed, in the hurry of the trial below, with but very little time to reflect on the various questions which were presented in the course of it, the judge who delivered the opinion of the court seems either to have misapprehended the nature of the decree, or otherwise the effect
Judgment reversed, and venire de novo awarded.