Dampf's Appeal

Mr. Justice Mercur

delivered the opinion of the court May 2d 1881.

The appellant is a daughter and heir of D. F. Pomeroy, deceased. The appellees are administrators of his estate. On her petition they were cited to file their account, and filed it. She filed exceptions thereto and applied for the appointment of an auditor. The court, being of opinion she had no interest in her father’s estate, refused her application, dismissed her exceptions without considering the matters therein charged, and confirmed the account. The only contention is whether all her interest in the estate was divested, so that she had no right to be heard. Such divestiture is claimed to result from a receipt given by her husband, and attorney in fact, under authority from her.

The main facts necessary to understand the case are these : At the time of his death, D. F. Pomeroy was associated with Horace Pomeroy and S. W.- Pomeroy, under the name of Pomeroy Brothers, as bankers at Troy. The firm of Pomeroy Brothers was also associated with Frederick E. Smith, under the name of Pomeroy Brothers & Smith, as bankers at Blossburg. The firm of Pomeroy Brothers, in addition to banking, was also engaged in farming and in buying and selling cattle. They owned a large amount of real estate. Whether it was held by them as tenants in common, or a portion as copartners, does not appear.

The estate of D. F. Pomeroy was of considerable magnitude. In the account filed, the administrators charged themselves with proceeds of real and personal estate amounting to $122,565.58 ; but no mention is therein made of decedent’s interest in the firm of Pomeroy Brothers & Smith. _

While the question of appointing an auditor was being held under advisement the appellees filed a receipt, to which the hand and seal of the appellant, by her attorney in fact, J. H. Dampf, was affixed. It is in these words, to wit:

“$3855. Received, Troy, Pa., October 7th, A. D. 1874, from Pomeroy Bros., three thousand eight hundred and fifty-five dollars, being in full settlement of all my claims of whatever kind or nature, against the estate of my deceased father, Daniel F. Pomeroy, both real and personal, with the exception of the amount to be paid me at the death of Mrs. H. B. Pomeroy, widow. And hereby release and discharge the said Pomeroy Bros., from all claim against them as surviving partners, and release and discharge Eleazer Pomeroy and Dummer Lilly, administrators of said D. F. Pomeroy, from any and all claim by me against them, excepting the said sum to be paid me at the death of said H. B. Pomeroy.”

The court thought the effect of this receipt, in connection with the affidavit of the appellant attached to the exceptions filed, showed she had no interest in the estate.

We will first consider the effect of the language of the receipt, assuming it to have been executed by authority of the appellant. The administrators were not a party to it. There is no averment that the money came from them or from the estate. It does purport to except out of the settlement made with Pomeroy Bros, so much of the estate as is to be paid to her on the death of Mrs. Pomeroy, the widow of her father. With the exception stated, it acknowledges the money paid to be in full of her claims against the estate of her father, and it releases and discharges the said Pomeroy Bros, from all claim against them as surviving partners. It close's by releasing the administrators from all claim by her against them, except as before excepted.

Thus it is shown the receipt does not profess to divest all her interest in the estate. It expressly reserves a claim against the administrators. It recognises the existence of real estate, and declares that on the death of the -widow the appellant shall be entitled to an additional sum. If a sale of the real estate should be made made by the administrators the appellant would be interested in that sale. The measure of her claim would bo affected by it. The account filed shows a sale of real estate was made, and the sum received therefor is one of the items. This exception in the receipt of itself shows a continuing interest of the appellant in the estate, and gives her a standing in court. Her right to be heard being thus established she may file all proper exceptions to meet the justice and equity of her case. The court thought the affidavit rather equivocal in averring her interest. It may be admitted that it is not drawn with commendable precision; yet we think there is a substantial averment of interest. In fact that she was a daughter and heir of the decedent was not questioned.

Additional reasons may be stated why this receipt shall not be given the conclusive effect claimed. She was a married woman. Her husband assumed to execute it under a power of attorney from her. The certificate of acknowledgment of that power is not made in the form required by the Act of Assembly to pass the real estate of a married woman. It merely certifies to her identity, and that “she acknowledged the execution thereof to be her free act and deed.” It does not declare that she was examined separate and apart from her husband; nor that she executed it without any coercion or compulsion from him; nor that it was either read to her, or that the contents thereof were made known to her. These facts should be substantially stated when the wife unites with her husband in conveying her lands to another. With stronger reason should they be required when the husband attempts to convey his wife’s land under a power of attorney to himself. A married -woman lacks capacity to convey her real estate otherwise than in the manner prescribed by the statute: Rumfelt v. Clemens, 10 Wright 455; Dunham v. Wright, 3 P. F. Smith 167; Brown v. Bennett, 25 Id. 420; Innes v. Templeton, Pitts. Leg. Jour., of October 20th 1880, p. 73. It is true this rule does not apply to a sale or transfer of a wife’s personal estate; nor to her receipt of money. The 4th section of the Act of 11th April 1856, Purd. Dig. 1009, declares, when a married woman shall be entitled to a legacy or to a distributive share of the personal estate, or of the proceeds of the real estate of a deceased person, it shall be competent for her, either in person or by attorney, to sign, seal and deliver a refunding bond, in pursuance of the Act of Assembly in such ca,se made and provided ; and also to execute all such other instruments, and to perform all such other acts as may by law be necessary to be done, or may be lawfully required by the executor or administrator upon the payment to her of the moneys to be distributed as aforesaid, with the same effect in binding her separate estate as if she was a feme sole. The object of this act is not to give a married woman general powers, nor the power to transact business generally, but to bind herself by such acts and instruments as may be necessary, or be lawfully required by the executors or administrators “upon the payment to her, of the money to be distributed.” It is to protect them and give them a legal voucher for what they have actually paid to her. This receipt was not given to the administrators. It does not recite the payment of any money by them. No account had been settled showing her distributive share. It shows no authority for Pomeroy Bros. to act for the administrators. In fact it was not treated as a voucher for money ’paid by them; but it appears to have been treated by them and by the court as an assignment to Pomeroy Bros, of her portion of the estate. This, as is held in Buchanan et al. v. Buchanan, 10 Wright 186, is the assumption of a power not intended to be given by the Act of 1856, cited. It does not appear in the case that any of the money mentioned in the receipt actually reached the hands of the appellant.

Some of the exceptions filed are very general; yet reasons are given therefor, which, if true, in a great measure excuse their generality. The exceptions raise questions of fact to be ascertained by evidence to be taken. Whenever exceptions to the account of an administrator are filed by one interested it is made the duty of the court, by the Act of 14th April 1835, Purd. Dig. 445, to decide whether the matters contested call for a reference to an auditor, and if they do, to appoint one or more. The court did not decide that the contested matters averred in the exceptions did not call for a reference, and it is very clear they did ; but that the appellant had no such standing in the case as to permit her to make the inquiry. In 'this the learned judge erred.

The ability of the appellant to sustain any of her exceptions, or to disprove the correctness of the account filed, are questions not now before us. We think she has a right to make the attempt.

Decree of final confirmation of the account reversed at the costs of the appellees; the exceptions are reinstated, and a procedendo awarded.

Gordon, J., dissented.