Cramp's Appeal

Mr. Justice Gordon

delivered the opinion of the court,

On the 19th of November 1869, the final account of the appellants, administrators of the estate of Anna B. Cramp, deceased, was referred to William H. Sutton, Esq., for settlement and distribution. The auditor made report, filed February 4th 1870, finding a balance in the hands of the accountants of $1514.41, and distributing the same among certain creditors and others as therein set forth. This report was confirmed finally and distribution ordered Febru'ary 18th 1870, and, in pursuance to this decree, the money in the hands of the administrator was paid over to the persons thereto entitled. On the 16th of September following, James Holgate filed an affidavit, setting forth “that the above-named accountants sold real estate against which deponent had a first recorded lien in the sum of $609.19, with accrued interest and costs, and debited themselves with the proceeds; that said account was referred to W. H. Sutton, Esq., as auditor, who has filed a report distributing said fund without searches, and without regard to the lien of said deponent; that said sale and account and report of the auditor has recently become known to deponent, and not until the same was filed.”

Upon- this paper a citation w’as awarded against the appellants to show cause why the confirmation of the auditor’s report should not be set aside and their account recommitted. To this the administrators made answrer, setting forth the facts substantially as as heretofore stated- After hearing, the court set aside the report and decree and recommitted the account. The auditor then, in obedience to the order of the court, though protesting thalt it was contrary to his own convictions, made his second report, finding that the city of Philadelphia, to the use of Joseph Holgate, had a lien against the property sold, and from which the fund for distribution arose, for paving, entered in the District Court, to March Term 1867, and applying the sum of $601.19 to the extinguishment thereof. Exceptions to this report were duly filed, were dismissed and the report confirmed. From this action of the court the administrators have appealed, and thus the case is now before us.-

Under the Act of October 18th 1840, section 1, Pamph. L. 1, the judges of the Orphans’ Court, at any time within five years after final decree confirming the original or supplemental account of any executor, administrator or guardian, upon petition of review being presented by any -person in interest, “alleging errors in such accounts, which errors shall be specifically set forth in said petition of review, and said petition and errors being verified by oath or affirmation, shall grant a rehearing of so much of said account as is alleged to be error in said petition of review, and give such relief as justice and equity may require.” “Provided, this act shall not extend to any cause where the balance found due shall have been actually paid and discharged by an executor, administrator or guardian.”

On this statute it was ruled in Yeager’s Appeal, 10 Casey 173, that the bill of review is in the nature of a new suit founded on some substantial error of law appearing on the record of the former case, or on newly-discovered evidence; that the petition must set forth specifically the error complained of; that a decree settling an account decides every item of it and fixes the balance; that the office of a bill of review, in such case, is to. surcharge and falsify, and in order to be entertained at. all it must specify the erroneous items affecting the final result and must support its averments by evidence. In the same book, Russell’s Appeal, p. 258, the same doctrine is repeated, with the addition, that it is necessary to allege in the bill, that the balance found due by the decree sought to be reviewed, has not been paid over by the accountant. '

Judged by the statute and these decisions, the application of Holgate is found utterly wanting. It is in the form of an affidavit, and concludes without a prayer for anything. It complains of no mistake in the account, but alleged only a default on the part of the auditor in 'not making search for liens ; a default, if one.it be, which surely should not be visited upon the accountants ; neither does it set forth what the act requires, if a review is to be granted, that the balance found due by the decree was not paid.out by those charged with its distribution.

As, then, this application was wanting in the essential features of a bill of review, .the court below should have refused to entertain'it.

And now, February 19th 1876, the decree of the Orphans’ Court of the city and county of Philadelphia, of March 3d 1874, confirming the auditor’s report of November 7th 1873, is reversed and set aside, together with that report, and the report filed February 4th 1870 is now restored and confirmed; the-application of the appellee for a review is dismissed, and it is ordered that he pay all costs accruing under said application, and the costs of this appeal.