Littleton's Appeal , 1879 Pa. LEXIS 409 ( 1879 )

The judgments of the Supreme Court were entered February 24th 1879,

Per Curiam.

(Opinion in Littleton’s Appeal.) It is very true that it was held by this court, in Field’s Appeal, 12 Casey 11, that the proceeding in the Orphans’ Court, against lands charged with legacies, must be by the legatees themselves, and that executors are not proper parties. Yet evidently making the executor a party does not avoid the proceeding for want of jurisdiction if the legatees are in point of fact parties. The court has general jurisdiction of the subject-matter, and any error of the court in the proceeding does not make void the decree. From the will and codicil of Mrs. Cox, Charles Hewson was not only executor but also trustee, to receive and hold the property which was to constitute the fund from which not only the legacies but the annuities were to be paid, and he was therefore a proper party to 'institute the proceedings. We think, then, the decree of the Orphans’ Court was conclusive. The minor children of Mrs. Cox, these appellants, appeared by guardian, and submitted to the decision of the court. This dispenses with the necessity of considering whether' the annuities were by the will of Mrs. Cox charged on her real estate. The bill of review was not filed in time. We think it clear that the income tax was properly charged on and paid by the trustee, and was not a charge against the annuitants, and that the court were perfectly right in decreeing that the trustee was entitled to hold the estate for the payment of the annuities. The proper mode of proceeding to ascertain whether the balance in his hands is more than sufficient would seem to be under the Act of February 23d 1853, Pamph. L. 98.

Decree affirmed, and appeal dismissed at the costs of the appellants.

Per Curiam.

(Opinion in Neill’s Appeal.) We have decided in Littleton’s Appeal the question of the jurisdiction of the Orphans’ Court in the proceedings of 1863, and came to the conclusion that the decree in that proceeding was a valid and binding adjudication of the main point in controversy in this case. The bill of review was too late in point of time. It is stated in Story’s Eq. Pl. 410, that such a bill will not lie after the time when a writ of error could bo brought to a judgment, for courts of equity govern themselves by the analogy of the law in regard to writs of error, and he cites numerous authorities. In New York it is held that a bill of review cannot be brought after the time allowed for an appeal: Boyd v. Vanderkemp, 1 Barb. Ch. R. 273. Perhaps in this state it would be wise to follow the rule established by the legislature as to reviews of final decrees confirming the original or supplementary account of any executor, administrator, or guardian, by the Act of October 13th 1840, sect. 1, Pamph. L. 1841, pl. 1, which is five years. This, however, would only be by analogy, for it is clear that the Act of 1840 is not directly applicable. Yet in George’s Appeal, 2 Jones 262, Mr. Justice Bell says, “should it become necessary with us to fix the time within which a review may be granted, the period will probably be much abridged by reference to our Act of 1791, prohibiting writs of error after seven years,” (now reduced to two years by Act of April 1st 1874, Pamph. L. 50,) or it may be the Ac± of 1840, just mentioned.

Decree affirmed, and appeal dismissed at the costs of the appellant.

On motion a re-argument was ordered in both of these appeals, and they were re-argued on February 13th 1880, before Sharswoo.d, O. J., Mercur, Gordon, Paxson, Trunkey and Stbrrett, JJ. Green, J., absent.

On the 1st day of March 1880, the judgment of the Supreme Court was again entered as follows :

Per Curiam.

After a full consideration on re-argument, we see no reason to change the opinions filed heretofore in these cases.

Decrees affirmed, and appeals dismissed at the costs of the appellants.