136 A. 798 | Pa. | 1927
Argued January 31, 1927. James M. Schwoyer, of Lehigh County, died testate, in May, 1923. In 1925, his executors filed a first partial account showing a balance of some $20,000. Before the auditor, appointed to make distribution thereof, Joseph Silverstein presented a claim of $5,000, with interest from March, 1921. The orphans' court's decree confirming the report of the auditor, disallowing this claim, forms the basis of this appeal by claimant.
A careful study of the entire record discloses no cause for reversal. Schwoyer was a large stockholder and officer in the Diehl Furniture Company; this company was, in March, 1921, exchanged for the Lehigh Real Estate Company, stock in the latter being issued to holders of stock in the former. It took some months to consummate this exchange of corporations, including corporate stock, franchises and property, during which time the claimant acted as representative for Schwoyer and his associates. For these services he presented this $5,000 claim against the Schwoyer estate. There was no proof of the value of the services and the claim rests entirely on an alleged oral agreement by Schwoyer to pay Silverstein that sum on account thereof. The claim might have been presented to the deceased in his lifetime, but, so far as appears, never was. In such case it requires the most careful scrutiny: Reynold's Exrx. v. Williams, Exr.,
Allen W. Hagenbach, Esq., was attorney for the deceased and his associates at the time of the corporate transfer, for which reason the auditor concluded his testimony given as a witness for claimant was privileged and should be disregarded. It is immaterial whether this conclusion is right or wrong, for, treating all Hagenbach's testimony as verity, it adds practically nothing to claimant's case.
True, while Hagenbach was on the stand, he refused to answer certain questions, which the auditor said he might answer, regarding statements the deceased made to claimant in his presence, on the ground of a privileged communication, as witness was then acting as counsel for Schwoyer. Claimant took no exception to such refusal and made no request that the auditor require an answer. Neither did he ask the auditor nor orphans' court to compel the witness to answer, as he might have done. See Act of April 11, 1848, P. L. 507, also Com. v. Newton, 1 Grant 453, and 3 Rhone's Orphans' Court Practice 276, as to power of the auditor. See also Enos v. Garrett's Est., 2 Pa. Dist. Reports 86, and Coray v. Jenkins, 5 Lackawanna Jur. 242, as to duty of the orphans' court in such case. Not having exhausted his remedy in the lower court and having no exception on this branch of the case, the record presents nothing which we can review. Error cannot be successfully assigned *546
to rulings at the trial to which no exception was taken: Littieri v. Freda,
Subsequent to Schwoyer's death claimant brought suit and filed a statement of claim in the court of common pleas, to which an affidavit of defense was filed. This suit, brought to preserve the lien on decedent's land, never came to trial, but the claim embraced therein was presented to the auditor as above stated. After the auditor had filed his report, claimant asked to have an issue framed so his case might be tried before a jury. This was properly denied; having had his day in court before the auditor he was not entitled to another before a jury. The application came too late. A creditor whose claim has been passed upon, is concluded: Sergeant's Executors v. Ewing,
The finding of the facts by an auditor, approved by the orphans' court, is entitled to the same weight as the verdict of a jury. Had the latter found the facts in this case against the claimant there would be no reason for a new trial.
The decree is affirmed and appeal dismissed at the costs of appellant. *547
