7 Watts 64 | Pa. | 1838
The opinion of the Court was delivered by
Christian Mylin, one of the sons of the testator, filed exceptions to the administration account, and the orphan’s court appointed auditors to settle and adjust their estate. The auditors made report the 6th of October 1837, and on the same day the accountants filed their exceptions. The 28th March 1838, Christian Mylin also filed exceptions. Christian Mylin appeals from the decree of the orphan’s court, and now relies on the exceptions filed by him in the orphan’s court, and also alleges, that there was error in the decree of the court, on the exceptions filed by the accountants.
We will dispose, in the first place, of the exceptions, which were filed by Christian Mylin. The question depends on the validity of a rule of the orphan’s court, which requires, that all reports of auditors shall be returnable to the next regularly assigned orphan’s court; and no exceptions to such reports of auditors shall be received, unless the same be filed within ten days after the report shall be read in
In all cases of appeal from the definitive sentence or decree of the orphan’s court, the supreme court, by the act of the 14th of April 1835, have power to hear and determine the same, as to whom right and justice may belong, and refer the same to auditors, as they may think proper. A construction to this act was given in Heis’s Appeal, 5 Watts 157. It was held, that it was a general rule, that a decree will not be reversed, but on an exception filed in the court from which the appeal is taken. That the intention of the legislature was, to vest in the supreme court a discretionary power, to refer the accounts to auditors for further investigation, when it is apparent injustice has been done. By the act of the 16th of June 1836, second section, the supreme court, in all cases of appeal from the orphan’s court, have power to hear, try, and determine the merits of such cases, and decree according to justice and equity. By this, we do not understand that the court is vested with any new power, for the court were bound to do justice before; and the rules adopted were intended to produce that effect. Under the act of 1835, some doubts existed, whether the court were bound to refer the accounts to auditors, or whether the court itself could correct the mistake, when it was apparent injustice had been done. We are of opinion, that the rule recognized in Heis’s Appeal has not been altered by'this act, and this court cannot interfere, unless in the case of a plain and palpable violation of the rules of equity and justice. A strict adherence to this rule will best protect the interest of persons interested in the estates of decedents, as well as administrators and executors.
This disposes of the exceptions filed by Christian Mylin, and it remains now to examine the decree of the court, on exceptions by the executors.
The appellant complains of the decree of the court in relation to two items, viz., the allowance of 1400 dollars paid by Abraham Mylin, in part payment of the land devised to him by the will, and 340 dollars and 23 cents, which Jacob Mylin alleges he paid on account of the valuation money of the tract of land devised to him. The administration account was referred to auditors, who reported a balance in favour of Christian Mylin, of 4943 dollars 28 cents. The auditors charge the accountants with the whole amount of the valuation money of the several tracts of land devised to the executors, viz., Martin, 10,000 dollars, Abraham, 9,600 dollars, and Jacob Mylin, 11,470 dollars. To this report the accountants filed exceptions, in due time, alleging, that Martin had, in the lifetime of the testator, paid to him, on account of the land devised to him, 2000 dollars ; that Abraham had paid 1600 dollars, and that Jacob, in like manner, had paid 3470 dollars. In support of the payments, the depositions of the accountants and devisee were read in evidence ; and the first
We have had some difficulty as to the payment of 1400 dollars by Abraham Mylin. This was allowed by the orphan’s court, on the testimony of John Mylin, in connection with the receipts; and we cannot say the court was wrong. There were three receipts to Abraham : one for 600 dollars, signed by John Mylin, the father; the other two, viz., for 450 dollars and 350 dollars, were signed by John Mylin, the son. It is not stated on the face of the first receipt, for what purpose, or on what account the 600 dollars was paid ; in the two last it is said to have been on account of the witness’s portion in the land. In explanation of these receipts, John Mylin was examined as a witness by the accountants. He proves that the receipt for 600 dollars is in the handwriting of his father, John Mylin ; that the other receipts were signed by himself; and that all the money, including the 600 dollars, was paid to him by Abraham, with the assent of his father, as part of his portion. In opposition to this evidence, the exceptants rely on the will, which was executed after the alleged payments. The testator values the premises devised to Abraham, at the sum of 9,600 dollars, which he orders and directs to be paid in one year after his decease. By the acceptance of the devise, it is contended that Abraham is bound to pay the whole amount of the valuation, without, any deduction whatever, and without regard to payments made before the execution of the will. In this view of the case, it must, be admitted, there is great force ; but ns there is some evidence that there was a former will in existence at the time, of which this is a copy, differing merely in the restrictions put. on Christian, and as John Mylin proves the money was paid on account of the land, the court has come to the conclusion to allow the accountants that amount. This part of the decree of the orphan’s courtis affirmed.
The allowance of 3470 dollars, alleged to have been paid by Jacob Mylin, to his father, on account of the land devised, stands on a different footing from the 1400 dollars allowed to Abraham Mylin. John Mylin, the only competent witness, knows nothing of this payment. It rests entirely on the receipt itself, and the testimony of Jacob Mylin himself. The receipt is asfollows. “Received, April 6, 1820, of my son, Jacob Mylin, 3404 dollars and 23 cents, on account, and in part,
“ Test, W. B. Ross.
“$ 3404, 23.”
The receipt is in the handwriting of the witness, by whom it is attested ; but the name of John Mylin is cut out from the paper, and it appears in that cancelled state. It is not certain, although it is probable, from the face of the paper, that the receipt was signed by John Mylin. The receipt, as is said by Jacob Mylin, was given for the share, he, Jacob Mylin, had to pay his father on the land. He says he paid the money to him in Bird Ross’s office, who wrote the' receipt, and that his father signed it. That he cut the name out of the receipt himself. That as the money was paid, he cut the name out, after his father’s death, a long time after it was paid, as he would out of any other bond. This is the account he gives of it. It is contended, that although Jacob cannot be examined, to discharge himself from the payment of the money which the auditors have charged against him, yet, that it is competent for him to prove by his oath, and at his own instance, the state of the paper offered in evidence, when he found it/ and where he found it; and for this position they rely on Lenox v. The Executor of Dehon, 1 Yeates 37; and Stanley v. The Executors of Everhart, 1 Yeates 256. In the cases cited, the papers belonged to the estate of the testator, and the executors were admitted, from necessity, to prove the collateral point before the court, to introduce testimony of the contents of the papers to the jury. Here the receipt was the paper of the witness, cancelled by himself, for some reason, which it is difficult to conjecture, and which has not, and perhaps cannot be explained. We are at a loss to know why the receipt was cancelled ; for it is difficult to imagine any similarity between a receipt and a bond, which could induce a rational person to cancel it, and then destroy that which was taken for his own security. It would be a dangerous precedent, when the spoliation of a paper has been confessedly made by a party himself, to permit him, by a proof of that fact, to lay a foundation for the secondary proof of its contents. The court will not loose the fetters which the party has put upon himself, but he must lie dumb (admitting the .fact to be as he states it') under his own folly. The smallest alteration or erasure, in a written instrument, if made without the consent of the other party, vitiates it. The rule is necessary to insure the identity of the instrument; to prevent the substitution of one instrument for another, and prevent tampering with written instruments. Stephens v. Graham et ah, 7 Serg. <$• Rawle 505. A party may be permitted, by his own oath, from necessity, in some cases, to show that a bond, or other instrument of writing, has been destroyed or mutilated by accident, or carelessness, so as to introduce proof of its contents ; but no case has been cited, where the alteration, or erasure, has been designedly made by the party himself, and proof of its contents has been suffered to be laid before the jury. As
The exceptant also claims, in this account, to charge the executors with the additional sum of 1500 dollars, and with the arrearages of interest. It is very clear that that amount which arose from the sale of Christian Mylin’s estate, by his assignees, went into the lands of John Mylin ; but the difficulty is, wheiher the executors are accountable, or whether it should be charged against Martin and Abraham Mylin, as assignees of Christian. The object of the arrangement, which, we may presume, was made with the assent of Christian, appears to have been, to save that much of his estate for his benefit, and the benefit of his children. It is not the case of a voluntary bond, as was erroneously supposed ; but the money was received by the father from the assignees, to save it for Christian. That this was the nature of the arrangement, appears as well from the statements of the executors, as the fact, which is admitted, that the interest on that amount was paid, before and after the death of John Mylin the father, to Christian, and on his account, in payment of the dower, which was a lien on his land. The estate, therefore, became indebted to Christian to that amount, which, together with the interest, which remains unpaid, he is justly entitled to.
In addition to the exceptions, the counsel for Christian Mylin prayed the court, when making up their opinion on the merits of the cause, to pass upon several legal propositions which were filed, and to affirm, or disaffirm the same. Whether the orphan’s court were right or wrong, in their answers to these points, I shall not attempt to decide, for all we are called upon to examine, ,is, whether the decree is right, without regard to the reasons of the court in coming to that conclusion. The course adopted is a novel and most extraordinary one, which we hope may not be repeated, as it is calculated to perplex and harass the court, without tending, in the slightest degree, to affect the merits of the case.