Thompson's Appeal , 1883 Pa. LEXIS 218 ( 1883 )

.Mr. Justice Gordon

delivered the opinion of the court,

There was in this case no application to the court below to direct an issue, and if there had been the court might or might "not have entertained it as to it might seem proper .and expedient. The Act of the 29th of March 1832, confers on the Orphans’ Court the power to direct an issue to the Common Pleas, but the exercise of tiiat power is left to the discretion of that court. Even should an issue be directed aud a verdict be had thereon, that verdict is no more binding upon the court than is an Auditor’s report. Whether the finding of fact be by the verdict of a jury, or by the report of an Auditor, the court is bound to revise it, and is responsible for its rectitude. So when the case comes to us we are not to inquire whether the facts have been settled by a verdict, an Auditor, or the court itself, but, in the language of the Act of the 16th of June 1836, we are to try, hear and determine the merits of such case, and to decree according to the justice and equity thereof. The idea, therefore, of an appeal from the action of the Orphans’ Court, on its refusal of a motion for an issue, has no support either in the letter or reason of the law.

The complaint that the court was without jurisdiction to order the executors of William R. Ralston to file an account, and to make distribution of the balance of the estate found in their hands undisposed of cannot be sustained. The Orphans’ Court certainly has jurisdiction,, upon petition of any oue interested, to direct either executors or administrators to file their accounts, and when such accounts are filed to order distribution to be made to those entitled, whether creditors or legatees. So also had the court the power to determine as between the legatee, in this case, aud her assignee, which of the two was entitled to the legacy : MeGettrick’s Appeal, 2 Out. 9.

Then, as to the evidence, we fail to see that the court erred in approving the findings of the Auditor. It is hardly necessary to repeat what has been so often said, that a court ought not hastily set aside the conclusions of a Master or Auditor upon the facts of a case submitted to him. This ought to be done only upon the discovery of some plain and obvious error, or where the whole evidence shows such a preponderance against his finding, that, were it a verdict of a jury in a Court of Common Pleas a new trial ought to be granted. Here we find nothing of that kind ; the proof of insanity, or want of mental ability on part of the assignor to execute the assignment, was more than doubtful. It is true, if we were to take the evidence on part of the appellant as verity, we might be compelled to conclude that thei-e was a manifestation of some mental aberration about the time of the execution of the paper in controversy, hut this, in face of the adversary proofs produced by the appellee, we cannot do. Moreover, the prima facie presumption is in favor of her competency, and upon her devolves the task of rebutting that presumption. Of her sanity at the time of the audit there is no doubt; her own testimony is conclusive of this, and if she was mad at the time of the execution of the assignment, it is remarkable that neither the attorney who drew that paper, the witnesses who attested it, nor the notary public who took the acknowledgment, observed that fact. Moreover, her own uncle was at that time present for the purpose of identifying her as the'proper assignor, and to him she declared, on being asked her object in making the assignment, that she was that much smarter than her brother and sister ; that whilst she had got her share of the estate, they would get nothing. Tírese circumstances would seem to clearly indicate her entire ability to dispose intelligently of her property, nor does there seem to have been a single fact apparent during the whole •transaction that would indicate the contrary. We also think the Auditor, was justified in finding that she received a full consideration for this assignment, and if such were the case we would not be over-nice in scrutinizing her mental condition. She may have been, as she herself says, in a weak condition when she executed the assignment: but whether weak or strong she needed the proceeds of her property for her support and maintenance, and having received them in good faith, we cannot agree to annul the contract by which they were obtained.

The appeal is dismissed, and the decree affirmed at the costs of the appellant.'