Clauser's Estate , 1 Watts & Serg. 208 ( 1841 )

Huston, J.

dissenting. —About the year 1815, in 8 Serg. & Rawle 347, we find the first decision in Pennsylvania that administrators could not bring into their account any money expended on account of the real estate or maintenance of orphan children, and there have been several decisions to the same effect since; though many accounts containing such items have constantly been passing the Orphans’ Court in every county of the state, and several have passed this court without objection being made. Where guardians have not been appointed, and the administrators are the near relations of minors, they uniformly lease the land, at least for one year, and if the rent is not all required for the maintenance of the minors, and is mingled with proceeds of personal estate and applied to pay debts, or forms a balance for distribution, there is no harm done, and very often counsel, where they are satisfied all has been perfectly fair, will not make any exception. In this case, the administrator did lease the land for two or three years, and from the time guardians were appointed they leased it. The administrator, who was the father of the widow and grandfather of the minors, and also the largest creditor by bonds given for the land which forms the only estate of the minors, had settled two accounts. In both the accounts of 1826 and 1830, the administrator, as I understand it, charged himself with the rents, and took credit for the bonds paid by these rents—under the agreement with the guardians hereafter stated. The account of 1830 was referred to auditors, who made a report on 13th November 1830, showing a balance in the hands of the administrator of $538.68.

While this account was before the auditors, John Weidenhammer, who was the guardian of two of the minors, viz. Catharine and Peter Clauser, and Samuel Fegely, who was the guardian of William, Maria, and Elizabeth, were examined, and their testimony is up before us with that account. Weidenhammer proved that the administrator managed or leased the land until the guardians were appointed, about 1828. At that time, seventeen bonds from Peter Clauser to the administrator, Sheradin, were still due. The guardians leased the land from their appointment—he says, “We had no agreement about the bonds, but every spring what was left after paying the expenses of the farm, we paid on the bonds as they fell due, from 1829 till last spring. The old man wanted us to try and keep the farm until the eldest son had his age, that he might have a chance of taking it—it was my meaning that the place should be kept until the eldest son should attain his age, and so we have done until this time. The farm is in better order and worth more than when Clauser died. Sheradin managed the farm well while it was under his care.”

Mr Fegely, the other guardian, states substantially the same ; he also says there was no agreement about the bonds, and also the wish of Sheradin that the lands should be kept until the son came of age, and that the guardians assented to this, and acted on it, and took up a bond each year.

It is to me evident, that neither of these Germans understood what they said in one particular. The word agreement they understood as a written paper—for they both state a parol understanding of what was to be done, fairly adhered to on both sides for nine years.

Before this settlement, viz. in 1829, the widow had married John Ressler. At the time of this settlement, the agreement of the 8th November, 1830, was entered into, in the presence and with the concurrence of Mr Sheradin, the administrator and creditor.

On the same day, viz. 8th November, 1830, Peter Sheradin, the administrator, paid to the guardians $439.25, who probably paid Ressler and wife; and in June, 1831, paid them the balance and interest.

All went on under this agreement until 1839 or 1840, when somehow John Ressler understood that the land had become clear from the debts of the grandfather, and the guardians were alarmed at some suggestion that they had paid money on bonds not a lien on the land of their wards.

Peter Sheradin then filed his third account, in November 1839; in this he for the first time, after charging himself with the balance on his last account, $538.68, and taking credit for the sums paid as above to the guardians, $439,25 and $105.89, proceeded to state what is now due, and will become due, on the remaining bonds from Peter Clauser, deceased. This account was, 10th January 1840, referred to auditors, who reported confirming it.

Balance then due,........$738.37

To become due, ........ 1242.98

$1981.35

This report was read and confirmed nisi at April, 1841.

In the meantime, while matters were under discussion, two of the daughters, who were married, and their husbands, and a third daughter, who had come of age, entered into the agreement of the 18th Decembér 1839, with Peter Sheradin, the grandfather and administrator and creditor.

The two sons are yet under age. Ressler, who has had the benefit of the agreement of 8th November 1830, and (it is said) the two guardians, except to the account, because the auditors erred in allowing credit for the two payments to the guardians, in 1830, 8th November, of $439.25, and of $105.89 in June 1831; in allowing credits for payments on all bonds since 1830, and allowing a statement to be filed of what is due; and in allowing three or four small items for stating the account and register’s fees, and $10 to accountant, &c.

The court rejected this whole third account, and refused to let it be filed; and from this, an appeal to this court is taken.

The objections to filing this account are several:

1. No law or usage for it.

2. It was not necessary, but was done to introduce the administrator as a creditor.

3. The administrator intended to apply on this account for an order to sell the estates. I will observe here, in point of fact this is not so. The last agreement above proves this, and estops Shezadin from such application to sell.

4. The debts due the administrator had ceased to be a lien on the land.

The first is the most important, if not the only important point at this time. The case of Billington’s Estate, (3 Rawle 48) is in some respects applicable here. In that case guardians had never acted, but one of them had been the legal adviser of the administratrix. The proceeds of personal estate, and the rents and proceeds of lands sold by order of Orphans’ Court, had been all blended. The debts were paid and the children supported and educated. The administratrix was allowed for all; she applied them to the maintenance of the children and payment of the debts, and charged herself with the personal and real estate and the rents. The re-' ference to the auditor was drawn up by the late Chief Justice, modified at the suggestion of counsel, and justice was done.

By the Act of 29th of March 1832, sec. 4, the jurisdiction of the Orphans’ Court shall extend to, inter alia, “ the settlement of the accounts of executors and administrators, and the distribution of the assets or surplusage of the estates of decedents, after settlement with creditors;” and again; “ to all cases within the respective counties wherein executors, administrators, guardians, or trustees, are, or may be possessed of, or undertake the care and management of, or are in any way accountable for any real or personal estate of a decedent.”

The 29th section allows the balance of an administrator’s account to be filed by the prothonotary of the Common Pleas, and makes it a lien on the estate of such accountant. This was the same under former laws.

The 30th section authorizes the Orphans’ Court to examine into the settlement and payment of that balance; and on satisfactory evidence that it has been discharged, to make an order for relief from such recorded balance.

The Act explaining the jurisdiction of the Orphans’ Courts, 16th of June 1836, gives to them the same powers in these particulars in the same words, and adds power to enforce payment of legacies which, perhaps, it had not before.

In this case the administrator had filed an account showing a balance of $538.68 in his hands; no order for distribution was asked or-made. We hear a good deal about informalities in the Orphans’ Court; but I do not believe there is any county in this state, in which an order for distribution is not made where it is understood the account is a final one; no such order appears here. The administrator did pay the balance to guardians, who apply it to pay a sum agreed to be paid to the widow. I know of no court which has .power to decide whether that was a legal application of that money, but the Orphans’ Court of that county. If the administrator had a right, to file his account to show how he had applied the balance of his second account, the court were bound to receive it and decide on it, and, of course, on the other small items. There was no discussion of this part of the case, no decision on it in the Orphans’ Court. The case there and here was put on the question, whether on the authority of Kerper v. Hoch, (1 Watts 9) the claim of the grandfather’s administrator had not lost all lien on this estate for the balance of his bonds. I shall only say it has not yet been decided that there can be no possible case which will be out of the principle of that case. The question does not arise on the record before us. As to the payments made to the grandfather by the guardians since the expiration of seven years from the death of Peter Clauser, the question may arise when they settle their guardianship accounts; it can not arise until such accounts are presented, as to the two younger children, for the last agreement by those who are of age would seem to prove that they will ratify what the guardians have done.

The Act of 1797 requires the statement of the bonds to be filed within seven years, and in the records of the Common Pleas; now the year 1839 was too late a period to save the lien under the case last cited; and stating the claim as one due in an administration account, is no compliance with that law; besides, a statement in the administration account that certain debts are still due by the deceased, is mere surplusage; the court can not and do not decide unless an application is made to sell, that such debts are justly due. If an application for a sale of land be founded on such statement, it may become material; but no such application was made, and the agreement of 18th of December 1839, shows that no intention to apply for a sale existed, and bound the administrator not to make such application.

Perhaps it is to be regretted that Ressler did not adhere to his agreement not to meddle with the estate until 1842: by that time the son will be of age, and it is within the bounds of possibility, nay, it is probable, that he may see the conduct of his grandfather and the guardians as his sisters and their husbands have seen it, and may refuse to requite their care and kindness by subjecting them to loss, merely because they were kind to and careful of his interests.

Part of the account ought to have been received and decided on; and the residue of the points made in this case left, until they arose, if they ever do arise, in some future stage of this business.

But it is said that Shenck’s Appeal, (5 Watts 84) decides this case. The facts of that .case are not very minutely stated; but Shenck was one of the executors of a large estate. Another executor had the inventory taken, collected, and paid, and distributed above $40,000, and settled his account, which was confirmed. After this, Shenck, who was a creditor of the estate, filed an account, charging himself with the amount of the inventory, taking credit for the same amount delivered to his co-executor, and charging the estate with a sum due to himself; and this court decided that he could not, after the settlement of the estate, of which he had notice, file the account offered. The opinion of this court, delivered by the Chief Justice, commences thus: “ The executor would have been entitled to exhibit an account, had he been in the possession of any assets not already accounted for, or had he been out of pocket for disbursements in his office; but not to give himself a remedy for a debt due to himself by the testator in his lifetime.” Now I do not suppose it was intended to say that an acting executor, who was a creditor, could not put the debt due to himsélf in his administration account; that has always been done, and must be done; but simply to decide the case that an executor who never acted and never had any assets in his hands, who stood by with notice of the settlement of his co-executor, and made no objection, could not undo all that had been done, to let in his own neglected account.

But in this case P. Sheradin had in his hands $538.68, and this he was as much bound to account for in the Orphans’ Court as he was for the amount of the inventory. I think I have shown this by the parts of the Act of 1832, establishing the Orphans’ Court, already cited. But, to remove all difficulty, I refer to the Act of 24th February 1834, Tit. Executors and Administrators, sec. 31. Peter Sheradin had died since this decree of the Orphans’ Court, of course there will be administrators de bonis non. They may sue the representatives of Sheradin for the amount of his last settlement. Now, by the section last cited, they must settle that account in the Orphans’ Court, and the Common Pleas can only give judgment for the sum there found due; and this is the wisest and best provision in the law. Formerly an administrator had to settle an account in every suit by a creditor or person entitled to distribution, and prove all his vouchers, and produce all his witnesses at each trial. By this law his accounts settled in the Orphans’ Court, either before or after he is sued, and not appealed from, bind all persons.

I say nothing about that part of the account which states his claim to a large sum of money; stating it here will not make it better or worse; but its binding effect is not before us. If he had applied for a sale to raise this debt, and the Orphans’ Court had refused, or had ordered a sale on an appeal, this matter would have been the point to be settled. There was no doubt about the case of Kerper v. Hoch, (1 Watts 9,) as between the parties to that case; an heir, who has taken part of the estate at the appraisement, and paid the other heirs, is a purchaser; the rest of the case was not in the cause, nor argued by the counsel. I do not say whether right or wrongly decided; but this agreement or arrangement of P. Sheradin and the guardians was made in 1829, more than four years before that decision was published. The agreement was for the benefit of the children; at that time no lawyer or layman anticipated the decision abovementioned. Is that decision to have the effect of annulling previous agreements ? of making guardians liable to pay or to lose large sums, when the agreements were made and the money paid rightly, according to the law in all time past ? This question is not new; it came before Chancellor Kent in Lyon v. Richmond, (2 Johns. Ch. 60) and he says, “ a subsequent decision of a higher court, in a different case, giving a different exposition of a point of law from the one delivered and known, when a settlement between parties took place, cannot have a retrospective effect and overturn such a settlement. To permit a subsequent judicial decision in any one given case, on a point of law, to open or annul every thing that has been done in other cases of like kind for years before, under a different understanding of the law, would lead to the most mischievous consequences.” And Judge Story (Story’s Eq. 142) has given his sanction to this doctrine in the strongest terms.

I would not, therefore, decide a point not in the record before us, but introduced to feel the way for future suits, in this way or at this time.

Decree affirmed.