King v. Morrison

1 Pen. & W. 188

Opinions

The opinion of the court was delivered by

Huston, J.

(who recapitulated the facts of the case.) — 1. The first exception is that the accountants claimed, and were allowed, a credit of one thousand three hundred and ninety-seven dollars and sixty-five cents, for patenting the land of the deceased. An act of assembly, passed in 1785, had allowed those persons whose lands were unpatented, to obtain a patent, on giving to the State a mortgage for the purchase money remaining due. James Morrison, in his lifetime, had, under this law, taken patents for his land, and given two mortgages to the commonwealth for the purchase money in arrear. It appeared fully in evidence, that respectable counsel had advised the administrators, that they must satisfy these mortgages; and further, that the inquest, which divided the lands, were apprised of this, and estimated them at so much per acre, clear of these mortgages — all inquests in such cases do so. It cannot be pretended that there was any injustice in paying the mortgage money to the State — for it being added to the price of each parcel, and the amount of the several purparts added together, making the sum total, to be equally divided among the heirs, it is most apparent each child bore;an equal part of this.

But 8 Serg. & Rawle, 347, is cited, in which the court say, the administrator had no right to a credit for money expended on account of real estate. In that case, the widow, who had married again, had kept possession of the farm, and yet charged the children two thousand dollars, for improvements, during about eleven years, being much more than the rents. This was disallowed. There is no question the case was decided rightly — but the expression could not have been used as universally true: for the nineteenth section of the general act concerning intestate’s estates, expressly authorises the administrators, to borrow on mortgage, (giving the premises for security,) any sum of money, not exceeding one-third of the value thereof, or -to sell and convey such part or parts of the said lands, as the Orphans’ Court of the county where the lands lie, shall in cither case, from time to time, think fit to allow, for defraying just debts, maintenance of the children, putting them apprentices, teaching them to read and write, or for the improvement of the residue of the estate, if any be, for their advantage. Now this is to be done, in case there is no personal estate; if there is personal estate, it would seem the same may be done with it: and whatever the law directs administrators to do, may be, and must be put into an administration account. But the account ought to shew the debts to be paid, before any allowance to improve the land, or at least that there will be enough with which to pay them. In this case this was a debt, and peculiarly proper to be paid: for as each mortgage covered about four hundred acres, and that was divided and taken in unequal quantities, and at different prices, it would have' been difficult to apportion the sum each was to pay on the mortgage. The mortgage is a debt of the intestate, and to be paid with the personal estate, in case of intestacy, if administrators can pay it. 3 Peer. William, 358. In this case, under the circumstances, there was no error in allowing, this credit.

2d. exception. The auditors erred in not charging an advance on the personal estate, taken by the heirs at the appraisement.On that part of the goods sold, there was an advance. And if it had been proved that the articles taken at the appraisement, had been sold by those who took them, at an advance, this advance ought to be charged to each heir who took them at such appraisement; but there is no such proof, nor any proof that either of the administrators took any article at the appraisement. The family lived together until they successively married. In such case certain articles are necessary to be bought, or taken at the appraisement. There is no proof how they were divided at the death of the widow, or as each child separated. There was no exception at the time the first or second account was settled, as to this matter, and we see no evidence, vyhieh, at this time, would justify us in supporting this exception, more especially, as it appears to us that this item is, by a mistake, really charged twice in the account, and credited but once.-

3d. exception. The auditors have erred, in not charging the administrators with two thousand nine hundred and fifty-three dollars and twenty-one cents, being the amount of a bond and interest which the intestate held on Daniel Morñson, and which was lost by negligence of the administrators. This is an item of serious amount, and was really lost to the estate; and a witness proved that it might have been collected at the death of intestate, or rather that Daniel was able at that time to pay it, and promised to pay it when he sold his land. By the bye, this witness was at one time an arbitrator on one of these accounts, and then allowed a credit for it.

By the fourteenth section of the act of 20th March, 1810, it is provided, that any justice may take cognizance of any thing made so by this act,-for any sum exceeding one hundred dollars, if the parties voluntarily appear before him for the purpose; and shall proceed for the recovery thereof, by entering judgment if confessed, or if submitted to him by reference. This was understood to mean -if the parties instituted a suit voluntarily, and referred it to arbitrators chosen by themselves, and the justice entered judgment on the award; It was known before, that parties might refer at common law to arbitrators, and were bound by the award; but they often had to sue on the award, and it was supposed that the judgment on the award, by the justice, came in place of an action of debt on the award. In many parts of the State, much was settled in this way. Under this impression, the administrators and Daniel Morrison, submitted their claim, on this bond, to three arbitrators, before a justice. This was in the summer of 1811. Daniel set up a defence as to the whole, and more; and an award was made in his favour for three hundred and twenty-seven dollars, and judgment entered for him. The administrators appealed to court. Two eminent counsel were employed by them. The business in court in this county was greatly in arrear, and a special court appointed, in addition to the regular court, have not yet brought up the business. In 1814, the Supreme Court decided, that such proceedings, before a justice, were illegal and void. This decision was not published, or generally known,, until 1818. Brenneman v. Greenawalt, 1 Serg. & Rawle, 27. Soon after this, the appeal was struck off the docket, and Daniel Morrison issued execution. The administrators took out a certiorari, and reversed the proceedings:_ and before the next term brought suit in court, and recovered; but Daniel Morrison had become insolvent, and the debt was lost. There was no delay in any part of the proceedings, but the proceedings were unfortunately mistaken. It is believed there is no instance where trustees have acted with good faith, and-under the advice of counsel, (and here they had eminent*) in which they have been held responsible. 4 Johns. Ch. R. 619. It is an unfortunate business; but one in which there was neither negligence nor fault. The mistake in the proceeding was not peculiar to them, or to this district. In the district in which I lived, such proceedings were common, andino lawyer questioned their legality, before the case above cited.

4th; This exception embraces several small items, which the referees on the second account had charged to the administrators. No evidence was before us to shew why these charges were made, and as that report was waived by the present submission to auditors, we' do not see how we can decree the administrators to pay those sums. That report had not been confirmed by the court. The bare fact, that one set of auditors made those charges, is met by the fact, that the present auditors rejected them, and without some evidence of their justice, we cannot, say the administrator must pay them.

There is another item under this fourth error: James Morrison left, among other property, a negro woman, a slave. The proof is, she was of air advanced age, was (by the advice of the appraisers and the family,) not appraised; she lived with the family as long as they lived together, and with the widow, till the widow’s death, and since that has gone to Samuel. No exception oil account of this woman, was made to either of the two first accounts. The objection is now made by the husband of the youngest daughter, who was a minor at the time of the appraisemefit. She however married about 1816 or 17, and her husband made no objection then, nor when the second account was filed. Where a family have made arrangements for their own convenience,, or that of their mother, and haye acted on that arrangement so long as from 181,1 till 1827, without objection, an objection then taken,- appears harsh. I do not say such objection will never be sustained in court, but it must be a substantial one to have effect. Minors.-wffi not be bound by arrangements by the elder branches of the family, where they are for the exclusive advantage of the latter, and unjust to the minors, but the objection ought to be made in some reasonable time. In the country, where the female part of the family do the work of the house, the daughters derive as much benefit from the labour of a female slave, as the sons; perhaps a little more. Samuel had, perhaps, the least of the whole family; and as no complaint was made until after the death of the mother, there is little, if any, ground for charging him, with what was of more benefit to the wife of the complainant, than to Samuel: she is now of such an age as to be of no value, and he agrees to keep her during her life. Much respect is paid to family arrangements, if just and reasonable, and especially if long acquiesced in. There are two other exceptions not insisted on, and we confirm the report of the auditors’ so far as it is before us.

Decree affirmed.