Young's Appeal

Mr. Justice Green

delivered the opinion of the court, January 9th 1882.

"When this case was here before, the question involved in the present contention was not before us. It follows that the decision then made determined nothing as to the matter now in controversy. It cannot be doubted that the court below bad ample power to correct the error of its original decree, either under or independently of the Act of 13th October 1840. Nothing bad been done under the decree, and if it was erroneous it ought to be corrected in the interest of justice and by the court that made it. We held in Parker’s Appeal, 11 P. F. Smith 478, that the Orphans’ Court, under the Act of October 13th 1840, might entertain a bill of review notwithstanding a decree of affirmance by the Supreme Court. The discretionary power of the Orphans’ Court to correct its own errors by petition of review outside of the provisions of the Act of 1840, has been affirmed in the cases of Gillen’s Appeal, 8 W. N. C. 499, and Whelan’s Appeal, 20 P. F. Smith 410, and is manifest upon plain principles applicable to the power of all courts over their own decrees.

The chief contention here is upon the question of the propriety of the original decree of surcharge. The learned judge of the court below, in a carefully prepared opinion has indicated with much force the reasons which induced him to regard that decree as erroneous. He has expressly found, upon the evidence taken in the course of the proceedings upon the account, that no devastavit was committed until long after the death of Robinson, the deceased accountant. It is very clear that upon Robinson’s death the right to the control and disposition of the assets of Lightcap’s estate devolved upon, and resided in, the surviving executors, and they were responsible for its exercise. As the testimony taken in the court below has not been printed, we are bound to assume that all the facts found by the Orphans’ Court, and reported in the opinion, were found upon sufficient testimony. As set forth in the opinion they are, that Robinson never had any of -the assets of the estate of Lightcap in his hands up to the time of his death; that all the assets of the estate in point of fact were where the law had cast them, in the hands of the surviving executors after Robinson’s death, and that those executors were solvent; that there is no evidence tending to show that any devastavit had occurred prior to Robinson’s death, and that neither Mr. Robinson nor any of the legatees had any ground of suspicion that such devastavit had taken place; that at the time of Robinson’s death Gill, the executor who had and administered the assets, was entirely responsible and able to settle his accounts or to give security, had it been required, and continued in that condition for several years later; that Gill continued for more than six years after Robinson’s death to transact all the business and handle all the asssets of the estate, as acting trustee, with the knowledge, and without objection on the part of the legatees. No proceedings were instituted against Robinson’s estate until more than nine years after his death; and this is, as the learned Judge of the Orphans’ Court well says, strongly persuasive evidence that the legatees looked to Gill alone as the responsible trustee.

In this state of the facts it is contended that the estate of Robinson is liable as for a devastavit, mainly because he had joined in the original account filed by the three executors, in which they admitted a balance in their hands. Ordinarily it is quite true' that the filing of a joint account is an admission of joint liability for the balance in hand. But it by no means follows that such joint liability is a continuing obligation which remains fixed and established as a judicial decree "and without regard to subsequent circumstances. Hengst’s Appeal, 12 Harris 413, chiefly relied upon by the learned counsel for the appellants, furnishes both the rule and its exceptions. It was there held that the filing of a joint account renders the accountants prima facie liable jointly for the acknowledged balance, but the death of one of the accountants, at law discharged his liability. In equity, however, the liability survived if there were equitable circumstances showing that it ought to he continued. Thus if the deceased accountant had actually received the money, or the survivor was insolvent and the deceased had made no effort during a number of years to secure the fund received by the insolvent executor, in such circumstances the liability would survive and could be enforced against the estate of the deceased, solvent, joint accountant. But that liability was shown to depend, not upon the mere fact of the filing of the joint account, but upon that fact combined with the equitable circumstances stated. Now in the present case there is an entire absence of these circumstances. Robinson never received any of the assets of the estate, and Gill, who did receive them, wTas not only not insolvent during Robinson’s lifetime, hut continued entirely solvent for a number of years after his death, as he had been before. There was, therefore, no neglect on Robinson’s part in not securing the fund in Gill’s hands, before his death, it is also contended that the omission of the executors to invest the fund as directed by the will constituted a devastavit as to Robinson during his life. The authority cited for this is Wiegand’s Appeal, 4 Cas. 473. That, however, was a case in which the proceeding was against the surviving executor, against whom, of course, the obligation to execute the will was a continuing one, for the neglect of which he was undoubtedly liable. No case is cited, either from the English or American reports, in which a liability has been declared and enforced in circumstances such as are present here; and the tendency of modern cases is certainly to hold accountants responsible for their personal defaults, and for such as have resulted from personal negligence, but not for the mere defaults of others with whom they have been joined, unless there are special equitable circumstances requiring it. For these reasons we think the action of the court below in setting aside the orginal decree of surcharge was right, and therefore—

The decree is affirmed.