Bickford's Estate , 1901 Pa. Super. LEXIS 112 ( 1901 )

Opinion by

William W. Porter, J.,

The appellant is the administratrix of her deceased husband’s estate. She collected certain assets and included them in her sworn account filed in the orphans’ court in March, 1898, about eighteen months after the decedent’s death. The account was referred to an auditor and on April 1, 1899 (after exceptions thereto had been argued before the court), his report was confirmed absolutely. On September 28, 1900, the administratrix filed the petition now before us, praying for a rehearing, and alleging that there were errors in the account previously adjudicated. The court below dismissed the petition and in so doing committed no error.

In the account as filed and adjudicated, the administratrix included an item of $2,132. This amount was received by her in settlement of a certain claim for accident insurance. A draft for the money was drawn to her order and a receipt was given by her. She indorsed the draft to the order of her attorney, that he might deposit it to her credit in bank, pursuant to her contract with her surety. It never was deposited by the attorney, who, as it appears, appropriated the money and died insolvent. The petition shows that the administratrix treated the item in her account as if the money was in her personal possession or control. She seems to have made no inquiry respecting the disposition made of the draft by the attorney, from August 4,1897, until the spring of 1900. She says that nothing was said or done with reference to the item in the account at the hearing before the auditor.

It is well settled that the account of an administrator or executor duly audited and confirmed by the orphans’ court, can only be reviewed as a matter of right (1) for error of law apparent on the face of the record; (2) or for new matter which has arisen since the decree; and (3) as a matter of grace, for the admission of proof (discovered after decree), which could not have been used when the decree was made: Scott’s Appeal, 112 Pa. 436, and cases cited ; Priestley’s Appeal, 127 Pa. 420; Thomas’s Estate, 184 Pa. 640; Kachline’s Estate, 7 Pa. Superior Ct. 163.

(1) No error of law is shown upon the face of the record before us. (3) There was no controversy upon the item, now said to be erroneous, at the audit, and after-discovered proof is not, therefore, a reason for opening the decree. Thus, are eliminated all but one of the grounds upon which a review may be granted, namely, (2) that new matter has arisen since the decree was entered. The only new matter which seems to be alleged is that the accountant has discovered that the attorney, to whom she intrusted the funds represented by the accident insurance money, has appropriated the same. But here the petition itself discloses a clear failure of duty upon the part of the petitioner. We may apply to this case the language used in Le Moyne’s Appeal, 104 Pa. 321: “ It is true in his petition he alleges that since the final confirmation of the account, he has become aware of gross error therein, but he wholly omits to state any reason why he did not, or could not, by the exercise of reasonable diligence, have discovered all these errors before the account was finally confirmed.” See also Scott’s Appeal, supra. The petitioner cannot be permitted to have a decree (entered upon her own representations) opened upon allegations of facts which were or should have been known to her when the decree was entered: Finley’s Estate, 196 Pa. 145. ' The administratrix was guilty of negligence in not ascertaining during the long period of time running both before and after the filing and adjudication of her account, that the money intrusted to her attorney for deposit had not been deposited in accordance with her known obligation, and in failing promptly to compel his deposit or repayment of the fund.

The decree is affirmed.