Kinter's Appeal

| Pa. | Jul 6, 1869

The opinion of the Court was delivered,

by Sharswood, J.

The first and second assignments of error may be considered together. The pleas and answer of the appellant, ■which were overruled in the Court below, allege that no bill of review could be sustained, because — 1. The petition did not show any errors of law appearing in the body of the decree, nor any new matter which had arisen or been discovered since, nor — 2. Did it aver that the balance found due had not been paid over by the accountant.

The petition, however, does set out that material errors and omissions in the account had been discovered since the decree. The evidence taken by the auditor shows the truth of this allegation, and there is no pretence that they were known to the appellee or made the subject of claim or dispute when the account was settled. The case falls, therefore, strictly within the principle recognised in Russell’s Appeal, 10 Casey 258. To apply any other rule to the settlement of the account of guardians would often be productive of irremediable wrong. When a young man comes of age he is most generally ignorant of his affairs, and the information which he receives upon the subject must come principally from his guardian. He naturally feels great confidence that all is right; and omits to make the necessary inquiries from other quarters, or to call in the assistance of counsel. He is too anxious to be master of the money to brook much delay. Private settlements and releases between guardian and ward, shortly after the arrival of the latter at full age, have always been watched with great jealousy: Say’s Executors v. Barnes, 4 S. & R. 112; Lukens’ Appeal, 7 W. & S. 48. The same reasons for jealousy exist even when the mere form of a settlement in Court has been gone through. If no exceptions are filed, the confirmation of such accounts is usually a matter of course, and examination by the Court, however rigid, would fail to discover errors of omission such as are complained of here. Liberality ought to be exercised in’ allowing bills of review in cases of this character.

Nor in our opinion does the proviso of the Act of October 13th 1840, § 1, Pamph. L. jL, apply. The object of that act seems to have been to make a Kill of review in the Orphans’ Court a matter of right, and at the same time prescribe a limitation of time to the exercise of the power. It was probably passed in consequence of the decision of this court in Briggs’s Appeal, 5 Watts 91" court="Pa." date_filed="1836-05-15" href="https://app.midpage.ai/document/briggss-appeal-6311547?utm_source=webapp" opinion_id="6311547">5 Watts 91, where, in a case like that before us, it was held that the Orphans’ Court, in the exercise of its discretion, had power to order a review of a guardian’s account on the ground of money having been received by him and not accounted for, the omission having been newly discovered. “ At the same time,” said Mr. Justice Sergeant, “ it is requisite that this discretion be exercised with great caution, and only within a reasonable time; otherwise accounts never would be at rest.” We must construe the Act of 1840 in the light of the old law, the mischief and the remedy. It never could have been the design of the legislature to provide that where an accountant had failed to charge himself with money, for which he was liable to account, that the payment of the balance should preclude a re-examination. 'We must give the law a reasonable interpretation — one in accordance with its spirit, and not its letter. The body of the act expressly declares that the court shall “give such relief as equity and justice may require.” In a great majority of cases this could not be done if the payment of the balance was a bar to all inquiry. Such a rule would be a cover to the grossest frauds purposely concealed. It was meant as a shield to the honest accountant, not as a weapon in the hands of the dishonest to perpetrate iniquity. Its evident purpose was that the decree should never be disturbed so as to do injustice to the accountant. If under it he had paid over money, he ought to be protected in that payment, even though it should subsequently appear to have been wrongful. Whenever, therefore, the object of the review is to surcharge the accountant with money received by him, not accounted for, and therefore not at all included in the decree, and not to disturb an appropriation already decreed and consumihated by payment, the proviso of the Act of 1840 is not in the way of the proceeding. This was intimated in the opinion of the court in Russell’s Appeal, 10 Casey 262, though it was not indeed a point decided. Here the account of the guardian, so far as the balance paid over is concerned, stands entirely undisturbed by the review.

The 3d error assigned is, that the court erred in confirming the report of the auditor, and in not setting it aside upon the exception filed. The only point made by this exception was that the right of the appellee to the money due on the recognisance was merged, before the guardian was appointed, in the land of John Kinter, Jr., and the minor took his share in land as a nephew, and in right of his deceased mother. John Kinter, Jr., as one of the heirs of his father, had accepted a farm at an appraisement and given his recognisance in the Orphans’ Court. A share of this appraised value belonged to the mother of the minor, and she was deceased. The report of the auditor showed that John Kinter, Jr., before his death, agreed with his brother George, that George should pay $750, and John $1250, which would give to each heir $500 — and the widow their mother was to have her living off the farm in possession of John as long as she lived, and this was assented to by all the heirs. After the death of John Kinter, Jr., the widow and heirs of John Kinter, Sr., except the minor, released all their interest in the real and personal estate of John Kinter, Jr., to Isaac Kinter. This was November 13th 1848. On the 20th April 1849, Isaac Kinter was appointed the guardian of the appellee, and on 25th March 1851, the administrator of John Kinter, Jr., settled his account, showing a balance in his hands of $1268.91. After this Isaac Kinter, the guardian, admitted that be had the money that came from the minor’s share of his grandfather’s estate. He said he should have every cent of it that was due to him, and that the amount was $500. It is very evident that under this state of facts, the guardian was rightly charged with the share of the minor in his grandfather’s land as actually received for him. Nor does it matter whether the guardian meant to acknowledge that he had it in land or money. When John Kinter, Jr., took the Stony Creek Earn, part of his father’s estate at the appraisement, he became the purchaser of the shares of his co-heirs at that price. The recognisance into which he entered with surety, acknowledged his personal indebtedness to that amount — secured by law by a lien on the land. Upon his death his personal estate became the primary fund for its payment just as it would have been for a bond and mortgage given upon an ordinary purchase: Keyzey’s Case, 9 S. & R. 71. His heirs at law taking the land by descent, were en.titled as against his administrator to have the recognisance discharged from his personal estate: 1 Story’s Eq., § 571. The guardian was bound to pursue this fund, and on the evidence the presumption is that he did. It is clearly immaterial, then, even though it should be held that the lien of the recognisance to the extent of the minor’s interest as the heir of his grandfather was merged or extinguished by the descent of one-fifth of the land to him from his uncle, the recognisor. If the money had or ought to have been collected from his personal estate, the guardian was rightly surcharged with the amount.

Decree affirmed, and appeal dismissed at the costs of the appellant.