Appeal of Priestley

No. 371.

Opinion,

Mr. Chief Justice Paxson :

The account of Dr. Joseph Priestley, which is the cause of the present contention, was confirmed absolutely December 6, 1882, and on. the lltli day of the same month he was discharged as trustee by the court on his own petition. Pie died on March 10, 1888, and letters of administration were granted to Hannah PI. Priestley, the appellant, on March 28,1883. More than four years after Dr. Priestley’s death, Mrs. Rodrigue, the appellee, presented the petition in this case for a review of his account as trustee. The whole contention was about a matter of commissions, the trustee having charged $1,522.24, being two per cent upon the money passing through his hands for a number of years. It was alleged that for a number of those years Dr. Priestley did not actually receive and disburse the money, owing to differences between himself and Mrs. Rodrigue, which it is not necessary to refer to in detail; that during this time he refused to act as trustee, or to have any business intercourse with his cestui que trust, and the money was paid by S. P. Wolverton, Esq., the administrator, directly to Mrs. Rodrigue. The receipts therefor were taken in the name of Dr. Priestley as trustee. The court referred the petition to an auditor, who took a large amount of testimony, resulting in the granting of the review, a subsequent re-statement of the account, with a decree of the court below reducing the commissions to $930.84. The principal question raised upon this appeal was the propriety of granting a review. This underlies the entire case.

After a man has been dead for four years, and more than four years after the confirmation of his account as trustee, the reasons should be weighty to induce a court to grant a review and open the account to further litigation. Especially should the delay be clearly and satisfactorily accounted for. In such case there should be no laches: Scott’s App., 112 Pa. 427. In her petition the appellee alleges that “she resides in New Jersey, had no notice of the filing of the account, and only recently learned of its existence.” This averment is evasive. It should have stated when she learned of it. The appellant in her answer distinctly avers that the account “ was filed with the actual and legal knowledge of the petitioner.” It was conceded she had legal notice; there was no evidence as to actual notice before the auditor, and this point must be disposed of upon the pleadings. As no evidence was offered to contradict the answer, it must stand as conclusive. This is the rule in equity, where, as here, the answer is responsive: Eaton’s App., 66 Pa. 483; Rowley’s App., 115 Pa. 150. Aside from this, legal notice was sufficient. “ The notice directed by law must be good and effectual, and we ought not to hear any complaints on that subject: ” App v. Dreisbach, 2 R. 287.

It was urged, however, that a review is a matter of right under the act of October 13, 1840, P. L. [1841] 1, if applied for within five years, and that in such cases no question of notice or laches arises. If we concede the truth of this position it does not affect the case. I have not referred to those matters for the purpose of showing that they would bar the right to a review within five years. It is not necessary in this case to decide such a point or discuss it at length: where, however, there has been laches, and the party complaining had both legal and actual notice of the' filing of the account, it would be a persuasive reason why a court, exercising equity powers, should move slowly, and see that the case clearly comes Avithin the act of 1840, and refuse it altogether where the application is ex gratia.

It has been ruled, in a line of eases, that an account settled and confirmed can only be revieAved for error of law apparent on the face of the record, or for new matter Avhich has arisen since the decree. As a matter of grace, a review may be granted for new proof, discovered after the decree, which proof could not possibly have been used at the time when the decree was made : Story’s Equity, § 104; Riddle’s Est., 19 Pa. 431; Russell’s App., 34 Pa. 258; Hartman’s App., 36 Pa. 70: Milligan’s App., 82 Pa. 389; Scott’s App., 112 Pa. 427. This court early adopted those principios of eqixity as applicable to tlie act of 1840, and they have never been- departed from in a single instance to my knowledge. It was said by Mr. Justice Strong, in delivering the opinion of the court in Hartman’s Appeal, supra: “Tbe construction given by the court below to the act of October 13,1840, was entirely accordant with that which the court has given in numerous cases. It was first announced in Riddle’s Est., 19 Pa. 433, repeated in Bishop’s App., 26 Pa. 470. It was also recognized in Stevenson’s App., 32 Pa. 318, and in Russell’s App., 34 Pa. 258. The construction is now too firmly settled to be disturbed by us.” And the authorities I have cited show that the same construction lias been maintained to tlie present time. Tlie rule in equity is, that a bill of review will not lie for an error of law, unless such error appears on tlie face of tbe decree. Mr. Justice Story, in commenting upon this rule in Whiting v. Bank of the United States, 13 Pet. 13, said: “ That is true, in the sense in which the language is used in the English practice. In England the decree always recites the substance of tlie bill and. answer, and pleadings, and also tlie facts on which tbe court founds its decree. But in America tbe decree does not ordinarily recite either the bill, answer, or pleadings, and general Ly not tbe facts on which the decree is founded. But with us the bill, answer, and other pleadings, together with the decree, constitute what is properly considered the record; and, therefore, in truth the rule in each country is precisely the same in legal effect, although expressed in different language, viz., that the bill of review must be founded on some error apparent upon the hill, answer, and other pleadings, and decree; and that you are not at liberty to go into tlie evidence at large in order to establish an objection to tbe decree, founded on the supposed mistake of the court, in its own deduction from the evidence.” And in Putnam v. Day, 22 Wall. 60, it was said by Mr. Justice Bradley: “We think tbe rule to be well established, and a wholesome one, that tbe proofs cannot be looked into on a bill of review-. This was expressly held in Whiting v. Bank, 13 Pet. 6.

It follows, from wbat lias been said, that when Mrs. Rodrigue presented ber petition for a review of Dr. Priestley’s account, it was competent for the court below to examine the entire record; and if it had appeared from the will of Hugh Bellas, and the codicil thereto, the record of the appointment of the trustee, the petitions for discharge and the action of the court thereon, the account filed by the trustee and the confirmation thereof, that an error in law had been committed, and that such error had been distinctly pointed out in the petition, the court below would have been justified in granting a review. Unfortunately for the appellee, no error of law is set forth in her petition, or appears anywhere in the record. It was a question of fact pure and simple, that the accountant had claimed commissions on money which had not passed through his hands. This was an objection which could as well have been taken when the account was filed, as it could several years after its confirmation and the death of the accountant. The act of 1840 was never intended to open accounts for the re'-trial of questions of fact, years after they, have been passed upon by a competent tribunal. The question of Dr. Priestley’s commissions was adjudicated by the Orphans’ Court years ago; it was a question distinctly appearing upon the face of the account ; it was a challenge to any person objecting to come in and dispute it. As was said in Scott’s Appeal, supra, “ Something is due to the finality of judicial proceedings.” As there was no error of law upon the face of this record, the appellee was not entitled to a bill of review as a matter of right; as there was no allegation of after-discovered testimony, she was not entitled to it as a matter of grace.

The learned judge below evidently relied upon Simpson’s App., 18 W. N. 175, as authority for granting this review. An examination of that case, however, discloses the fact that there was one, if not two, errors of law apparent upon the face of the record. The account as guardian was prematurely and illegally filed, and the balance decreed to Mary Y. Simpson was not coming to her, under the terms of her father’s will, at the time the decree was made, and might never have been due her. It follows that the review in that case was strictly in accordance with our construction of the act of 1840. The review in this case was a departure from Milligan’s Appeal, Scott’s Appeal, and the cases cited.

The decree of the court below, granting a bill of review, and all proceedings subsequent thereto, are reversed and set aside at the costs of the appellee.

No. 242.

Opinion,

Mr. Chief Justice Paxson:

This was an appeal from the same decree as Priestley’s Appeal, just decided. In the latter appeal, we reversed the order of the court below granting a review of the account, and all the subsequent proceedings. The effect of this is to restore the confirmation of the account in controversy. The court below awarded $980.34 to the accountant as commissions, which, together with some other small credits, left a balance due the accountant of $1,042.50. This allowance is assigned for error upon this appeal. All that was said in Priestley’s Appeal is applicable here. The question is precisely the same, and it appears that neither party was satisfied with the decree of the court below. The reversal of the decree in Priestley’s Appeal necessarily requires its affirmance in this appeal.

The decree is affirmed upon the appeal of Ephraim Cutter, administrator, and the appeal dismissed at the costs of the appellant.