Hartman's Appeal, 36 Pa. 70

Hartman's Appeal

36 Pa. 70 | Pa. | 1859

The opinion of the court was delivered by

Strong, J.

The construction given by the court below to the Act of October 13th 1840, was entirely accordant with thatAvhich this court has given in numerous cases. It was first announced in Riddle’s Estate, 7 Harris 433; and was repeated in Bishop’s Appeal, 2 Casey 470. It was also recognised in Stevenson’s Appeal, 8 Casey 318, and in Russell’s Appeal, 10 Casey 258. The construction is now too firmly settled to be disturbed by us. A petition of review, therefore, must aver errors of larv appearing in the body of the decree sought to be reviewed, or new matter *75which hath arisen since the decree, or that new proof has been discovered, which could not possibly have been used at the time when the decree was made. Tried by this rule, the appellant’s petition presents no sufficient reason for reforming the account. We have not the entire petition before us, but the abstract upon the paper-book exhibits no error of law appearing in the body of the former decree, no allegation of néw matter which has since arisen, nor averment of new proof since discovered. On the contrary, the petitioner avers that the evidence which she now asks to submit as a basis for reforming the account, was in her hands and under her control at the time when her account was subjected to the revision of the auditor. Then she claimed that the omnibus line, with the value of which the auditor and the Orphans’ Court charged her, was not the property of the decedent, Conrad Hartman, but her own. This was the issue which she submitted to the auditor, and upon that she staked her case. It was found against her, and the decision was confirmed by the Orphans’ Court, after exceptions filed by her. If she laid before the auditor the receipts and vouchers which she now claims should have been credited to her, it was to establish the ownership of the property. If she did not lay them before him, it was because she admitted them not to be proper charges against the decedent’s estate. She asks now to be allowed a credit for the same payments, “as having been made on account of Conrad Hartman, if it be conceded that he was the owner of the omnibus line,” -with the value of which she was charged. But that he was such owner she does not concede. She has always contested it. How can this be said to be a specific averment of any error in the former decree ? It is not positively asserted that there was any error. Indeed, from the tenor of the whole petition, so far as we can gather it from the abstract, the error, if any, is supposed to consist, not in the failure to allow credit for the petitioner’s receipts and vouchers, but in charging her with the value of the personal property. In regard to this, however, it is shown that the ownership of the omnibus line was established on trial to have been in Conrad Hartman. No issue denying such ownership was demanded to be sent tó a jury, it is true; but it was submitted to the auditor and adjudicated by him. That question of fact was, therefore, settled against the petitioner. If, then, a review of the account were granted, it could not avail her. It would still be the duty of the Orphans’ Court to charge her with the value of that property; in other words, to reaffirm the decree already made. Surely the Act of 1840 does not require that a review be granted, when the petition shows .that the original decree was right, and that the review must terminate where it begins — must leave the account as already settled. Even where the petitioner *76asks a review for new proof, discovered after the decree, proof which could not possibly have been used at the time when the decree was made, a review is granted as a matter of grace, not of right: Story’s Eq. 404; Barb. Eq. Prac. 90. But here the appellant shows that she had all the receipts and vouchers in her hands when her account was settled. If an accountant may retain vouchers for credit, without claiming or showing them until after his account has been settled, and confirmation thereon decreed, and then produce them as grounds for a review, it will require many more years to close a trust than has generally been supposed necessary. There is no equity in. such a petitioner’s cage.

The decree of the Orphans’ Court is affirmed with costs.