Brennan's Estate , 1870 Pa. LEXIS 193 ( 1870 )

The opinion of the court was delivered, February 7th 1870, by

Sharswood, J.

These are appeals by the administrator and the widow of James Brennan (Rush), deceased, respectively, from the final decree of the Orphans’ Court of Schuylkill county, confirming the report of an auditor appointed to restate and settle the account of the administrator, and to distribute the balance found to be in his hands. The principal assignment of error is, that the court below confirmed the report in violation of their own written rules. It has been said, indeed, more than once, that, courts are the best exponents of their own rules: Ellmaker v. Franklin Ins. Co., 5 Barr 189; Dailey v. Green, 3 Harris 118, 128; yet it would often work the greatest injustice if they were to be allowed plainly to disregard or violate them. ■ This court has often reversed for such cause. When the rights of parties depend upon the observance of court rules and orders, there is every reason why we should insist on it: Alexander v. Alexander, 5 Barr 277; Green v. Hallowell, 9 Id. 53; Ankrim v. Sturges, Id. 275; In re North Whitehall Township, 11 Wright 156. Without going beyond what is strictly the record in this case, it is clear that the 68th rule of the court below was entirely disregarded. It provides that, where any matter in the Orphans’ Court is referred to an auditor, and the time for making his report is extended by a special order — “ the auditor shall give notice to the parties who appeared before him, or their attorneys, at the time of making the report, a certificate of which shall be filed with the report.” The auditor in the case was appointed July 1st 1867. Two orders were subsequently made continuing his appointment, and of course extending the time for filing the report on March 30th 1868, and June 11th 1868. Whether notice of the filing was given or not, the record shows no such certificate to have been filed with the report as the rule plainly requires. Had the appellants appeared and filed other exceptions only, it might have been considered as a waiver of compliance with the rule. But the widow did except in the court below on this very ground. The record does not show any special reference back to the auditor for a special purpose at June Term, even if that, as the court below appeared to think, would have varied the case. We must reverse the decree on account of this manifest error, and as the record is necessarily to be remitted for further proceedings, we think it proper to say that the widow should have an opportunity, either to produce testimony before the auditor, or to ask for issues upon the questions of the deductions from her distributive share made on account of the Cantner note received by her, and of the alleged abstraction by her of the pocket found by the auditor to have contained $10,500 of the estate of the decedent — questions which, as it appears to us, are peculiarly proper for the decision of a jury, should the widow desire it. We are of opinion that there was also error in the learned court below in disallowing the commissions claimed by the administrator. The ground upon which this was done was, that the accountant had been unfaithful to his trust in giving up to the widow a note of George Cantner for $500, claimed by her to belong to herself, but found by the auditor to be part of the assets of her husband. Instead of surcharging the administrator with tbis amount, the auditor struck out the commissions amounting to $484.44, and the court was of opinion, on exception filed, that this was as favorable as the administrator had a right to expect, because the commissions were less in amount than the sum with which he ought to have been surcharged. But if he had been surcharged with this sum in his account, he would clearly be entitled to claim and receive it from the widow’s distributive share, as money paid and advanced by him to her in part of such share. Nothing is more common than for administrators to make such advances to distributees, and to be credited with them in the distribution account. Admitting that the note did belong to the decedent, and not to his wife, it was but such a payment in advance. The auditor, in point of fact, has charged this sum against the widow, adding to it the $10,500 said to have been in the pocket, and thus making $11,000. The estate then has lost nothing. .Why should this mistake, if mistake it was, be visited upon the administrator by the forfeiture of his commission? We perceive no good reason for it.

Decree reversed, and record remitted for further proceedings ; the costs of these appeals to be paid from the estate of the decedent.