Gossner's Estate , 1841 Pa. LEXIS 50 ( 1841 )

Per Curiam.

There is no substance in these exceptions. It has not been shown that any rule of the Orphans’ Court required notice to be given of the filing of the report. The counsel, or the party, is to look to it; and the appellant’s sickness did not make her case an exception. Then as to the maintenance. An auditor’s-deductions of fact, are to stand for the truth where there are no evident misconceptions of the evidence; and we are, therefore, to assume that the appellee rendered the services of an apprentice de facto to the appellant, his mother; and it would be unjust to suffer her, having received the benefit of them, to retract her .disbursements for him in that character. Unlike a father, she was not bound to maintain him; but, like a father, she might give him, on the principle of the United States v. Mertz, (2 Watts, 408,) the benefit of his earnings, and pay him wages as a labourer. Her charges, therefore, for maintenance, clothing, schooling, and pocket-money, were properly disallowed. Even did he not stand actually in the relation of a servant, a presumption, unrebutted by the proofs, would arise on the principle of Cummings v. Cummings, (8 Watts, 366,) that her disbursements were intentionally gratuitous; and if it would arise where services had not been performed to the donor, how much more must it do so, where the maintenance has in some measure been merited by occasional contributions of labour. As to the auditor’s exercise of jurisdiction over adversary demands, the truth is, that he refused to meddle with them, very properly considering himself an organ appointed to a specific duty which includes not the settlement of demands belonging to the administration, account. For the rest, it is certain that the appellee was not entitled to be allowed counsel fees, for maintaining an unjust and. vexatious defence; and she may think herself fortunate in not being subjected to the costs of the appellee, as she would have been, had the remedy continued to be an action at law. The exception to the allowance of interest has not been seriously pressed; and as it is no better than its associates, it could not have prevailed.

Decree and report of the auditor confirmed.