13 Pa. 188 | Pa. | 1850
The opimon of the court was delivered by
I can perceive no weight in the error assigned and strongly urged, that a legatee only may ask the court to appoint an auditor to make distribution.
If the matter stood upon the isolated ground that, under the statute, an executor would have no standing in court to ask for the appointment of an auditor for that purpose, it would be assented to. But, in this instance, the auditor having been appointed and made report to the court, his functions were ended, without some further action by the court. In that position of the case, the legatee now objecting appeared in court and prayed that the
Besides, Mr. Dunlap, who made thé motion for distribution on behalf of the executor, was also attorney for one of the legatees, and in that capacity, adopts and sanctions the proceeding.
It is strenuously urged by the objecting legatee, that there is no evidence that the $1000 United States loan, in relation to which the controversy arises, was paid to George Ludlam, in his life time, by government. But the auditor distinctly reports that the evidence before him satisfactorily established that the loans were paid off to the testator in his life time. We must therefore regard the fact as established, because the report of an auditor, like an award of referees, or verdict of a jury, determining upon facts, ought not to be set aside, except for plain mistake, which it is the business of the exceptant to establish by affirmative evidence. 5 Pawle 323. But the exceptant called Matthew L. Bevan, the accountant, as a witness, and examined Mm before the auditor, which he had a right to do, and the witness stated that the amount of the United States stock loan was delivered to Mr. Bevan, by the testator, in his life time. Bevan’s house being the bankers of the deceased. This court, therefore, must take it as established that the amount of the loan held by Ludlam, the testator, was paid to him in his life time. And this approximates us to the main question in the cause, that is, whether the payment by government of the one thousand dollar stock to the testator was an ademption of the legacy of that stock to James Ludlam, of Oxford street, London. We are met, however, as preliminary to the consideration of this point, with the exception that Mr. Bevan, the executor, was estopped from alledging .that the stock was extinguished in the life of testator and the legacy adeemed by the fact that he charged himself with the amount of the stock in his administration account, as stock existing. That entry in the account is in this form, “the following in my hands to be disposed of as the will directs,” and then enumerates other stocks specifically bequeathed, and adds with them, “ to shares United States áix per cent, stock at par $1000.” The executor had the fund in his hands, and merely followed the description of stocks in the will, and it is evident that at that time, he believed tMs stock would go to the representatives of James Ludlam, to whom he wrote, to
The decree of the court upon the report of the auditor is affirmed.