Sager v. Lindsey , 118 Pa. 25 ( 1888 )

Opinion,

Me. Chief Justice Gobdon:

The proof in this case was that the amount of the mortgage in suit was made up of three separate sums, or charges: $110 alleged to be due W. M. Lindsey, as administrator of the estate of George A. Cobham, deceased; $84 to Judge Johnson for services as counsel in the settlement of said estate, and $100 for services rendered by the same gentleman to John Sager in proceedings in bankruptcy.

Now, under the fifth assignment of error, we have an offer to show by Lindsey’s final account that there was nothing due him, and consequently nothing with which Elizabeth Sager ought to have been charged, and that Judge Johnson was the attorney who directed the affairs of the estate. This offer was rejected on the ground that Judge Johnson was not a party to the administration account. But it seems to us that this reason only meets part of the offer. It is true, that it could not affect the attorney’s claim for services rendered Sager, nor his claim against the estate, but it certainly would show that Lindsey’s claim of $110 ought not to have gone into the mortgage, hence, that the mortgagors ought not to be obliged to pay that amount. The account shows beyond doubt that Lindsey’s claims against the estate were fully and entirely settled and paid, and could not, therefore, be justly charged over to the Sagers.

The remaining assignments cannot be sustained. The offers assume that the appointment of W. M. Lindsey, as administrator de bonis non of the estate of George A. Cobham, deceased, was made without jurisdiction, and consequently void. But there is no -offer to show why this was so. If the appointment was made by the register, we cannot conceive how that appointment could be absolutely void for the want of jurisdiction, and only on this ground could his act be collaterally impeached; on the other hand, if some one who had no such power made the appointment, that fact ought to have been stated in the offer. It follows that the ruling of the court on this branch of the case was right, but for the rejection of the offer embraced by the fifth assignment, there must be a re-trial.

The judgment is reversed, and a new venire ordered.