| Pa. | Jan 2, 1877
delivered the opinion of the court, January 2d 1877.
This was an application for the review of a guardianship account duly confirmed by the Orphans’ Court.
In September 1866 - Dr. James Carothers filed his account as guardian of Mary E. Agnew (now Milligan), the appellant. At the next December Term it was ■ duly confirmed. In April of the next year, Dr. Carothers died. Some three months thereafter the appellant married. On the 28th of December following, the appellant presented her first petition, asking for a review of the account. She followed this with three supplemental petitions, the last in April 1871.
T. The omission of the guardian to elect to talce for the appellant a purpart of the real estate, at the time of the partition thereof, and therefore she asked to be allowed to come into court and make choice of or refuse said purpart at its valuation.
2. That the guardian had improperly charged for her support, maintenance and education, and that all those items should be stricken from the account.
'3. That the guardian mingled his ward’s money with his own in the purchase of bank stocks, and that the appellant is entitled to receive said stocks and their dividends, and not simply the money used in their purchase.
We will consider them in the order stated:—
1. The whole land partitioned was valued by the inquest at $17,352.15.' The appellant and the wife of Dr. Carothers were each entitled to one-eighth interest therein. It was divided into four purparts. The least valuable was valued at $3538. The appellant’s share was of the value of $2169 only. The guardian had no funds of the appellant with which he could pay owelty. If he had elected to take a purpart for her, he would have been obliged to advance, of his own money, a sum nearly equal to the whole value of the appellant’s share. This he was certainly not required to do. Had he done so, he would have incurred the risk of having the legality of his act questioned by his ward on her arriving at full age. He therefore took no purpart for the appellant. He did, however, in right of his ydfe elect to take a purpart valued at over $4500. This he.had a perfect right to do. The rights of his wife were not to suffer from the fact that her husband was guardian of the appellant. The wife was not thereby compelled to decline taking a purpart, nor was she obliged to take jointly with the appellant or any other heir. There is no averment that the partition was not honestly and fairly made, nor that any purpart-was appraised at less than its then market value. The partition was confirmed and the allotment made to Mrs. Carothers in October 1849. The court then ordered her and her husband to pay to his said ward the said sum of $2169, with interest from that date. He was charged Avith this sum in his final account, which was duly confirmed. A title thus acquired by Mrs. Carothers, in the absence of any fraud, cannot be divested or impaired by the discovery, several years afterwards, that the surface of the land was underlaid Avith coal.
It is further urged, that inasmuch as the record does not aver in express terms, that the guardian declined to take for his ward, it still remains open as to her, and she may noAV come in and elect.
The record, however, does show notice to “ the heirs and others interested in the estate” to be and appear on a day named, and accept or refuse to accept the real estate at the valuation, or sIioav
2. If the question of the charges for the support, maintenance and education of the ward was now open, there is great force in the objection to their allowance. But the question is not now an open one. All the items complained of were distinctly and specifically set forth in the .account filed, and it was duly confirmed by the Orphans’ Court. This is a petition for a review of that account. It is well settled that an account thus settled and confirmed can only be reviewed as a matter of right, for error of law apparent on the face of the record, or for new matter whichfhas arisen since the decree. As a matter of grace a review may, be granted for new proof, discovered after the decree, which proof could not possibly have been used at the time when the decree was made: Story’s Eq., § 404; Riddle’s Estate, 7 Harris 431; Russell’s Administrator’s Appeal, 10 Casey 258; Hartman’s Appeal, 12 Id. 70.
In the case we are now considering it is not claimed that any error of law appears on the face of the record, nor is it shown that new matter has arisen since the decree, or that all the proof now offered to invalidate the decree was not known and accessible to the appellant when it was made.
The answer to the petition, inter alia, avers:—
1. That the accounts containing all these' credits were well known to said ward, having been .examined before and after she attained her majority, and she made no objection thereto.
2. No objection was made to these credits in her first petition, nor has she specified in her supplemental petition her ignorance that the guardian claimed such credits.
3. She does not.aver that they are not correct in amount, nor that they were not duly and properly expended in the. maintenance and education of said ward.
The master, to whom the case was referred to ascertain the facts and give his conclusions, reported, showing that when the guardian’s account was made, the appellant was more than twenty-three years of age; that, she was present when the .items were “ discussed and considered during several evenings; that she was aware of the fact that a charge for boarding and clothing would probably be made, and the only question, if made,, was as to how much the charge •would be.” She was advised that it was a final settlement between
It will be observed that the effort is not to surcharge the guardian with money or property withheld or omitted from his final account, but to strike therefrom certain credits distinctly claimed, stated in the account, and confirmed by the court. The evidence was wholly insufficient for that purpose. All the facts on which the appellant relies to attack the decree were as well known to her when the account was filed, as when she petitioned for the review. She received payments to apply on the account after its confirmation, and made no application for a review until after the death of her guardian.
3. The allegation that the guardian purchased stocks with his ward’s money is not sustained by the evidence. The master states the law correctly. ■ He says : “ If the proofs establish the fact that these stocks were purchased with the money of the ward she would certainly be entitled to make her election to take them in lieu of money,” but he adds, “ the evidence fails to show that any of her money was used for that purpose.” An examination of the testimony does not show his finding to be unwarranted. He therefore concluded, “that under the law such a case had-not been presented as entitles the party to a rehearing of the account.” Exceptions having been filed to the report, they were dismissed, and the report confirmed finally by the court. We see no sufficient cause for disturbing the decree.
Therefore, decree affirmed and appeal dismissed at the costs of the appellant.