The opinion of the court was delivered by
Thompson, J.
— This was an action of assumpsit, brought by the defendant in error, who was plaintiff below, to recover the amount of certain accounts made with the testatrix in her lifetime. To this recovery the executors interposed certain matters in law, and by way of estoppel, as follows:—
Letters testamentary having been granted to the plaintiffs in error, executors named in the will of Mrs. Sergeant, and a year and more having elapsed thereafter, Ewing, the plaintiff below, claiming to be a creditor, presented a petition to the Orphans’ Court of the county of Philadelphia, praying for a citation to the executors to settle their account. The prayer was granted, the citation issued, and, in process of time, the executors filed their account, and an auditor was appointed to settle and adjust the same “and report distribution,” which was performed by him, and the report confirmed by the Orphans’ Court. The plaintiff took no further part in these proceedings after presenting his petition, did not appear before the auditor, or exhibit any account or claim against the estate whatever. On the trial of this case below, [81] the executors plead specially this proceeding, and claimed for it the effect of a former recovery and judgment between the parties, and that the plaintiff could not recover in this action.
It is not doubted but, that, if the plaintiff had submitted his claim to the adjudication of the auditor, and it had been passed upon by him, and his report confirmed by the Orphans’ Court, it would have been conclusive on him: Kittera’s Appeal, 5 Harris 422; and he would have been estopped from contesting in the future-what had been passed upon under this proceeding. But he had a full right to move as far as he did for either of two purposes, or both, namely, to ascertain, by compelling a settlement of the executor’s accounts, the precise amount of the personal estate, so as to govern his action in regard to proceeding to bind the realty; or, for the purpose of having his claim finally ascertained and adjusted by this tribunal, so as to claim a share in the distribution consequent on the settlement. Either purpose was legitimate, and there is surely no rule of law that will hold him bound by an adjudication to which he was stranger in fact, and wherein the subject-matter of his claim was never passed upon. There must either be evidence showing adjudication, or law that the party was bound to submit his claim to the tribunal, in default of which he would be as fully bound as if he had submitted. We think that neither of these necessary elements existed in this case. “ We look to the narr. to see what was passed upon:" Buffington v. Burhman, 4 Penn. L. J. 418. This is generally the medium of proof in courts of record; and, in every other tribunal, we look for something equally indicative. Here, however, it is not claimed that the plaintiff submitted his accounts to the executors, or that they were passed upon by the auditor, or distribution made to him. But this part of the case was placed upon the ground of estoppel, either by matter of record or in pais. It cannot be an estoppel of record, for there is no record; and, besides, the jurisdiction did not attach upon plaintiff’s claim by a mere presentation of his petition, which may have been for either of two purposes, as we have shown, materially different. Even if it might have been helped by proof, the fact of adjudication does not exist.
Was it an estoppel by matter in pais ? There is not one element to constitute this result. “ It is now established,” says Mr. Justice Bell, “ that in all cases, when an act is done, or a statement made, by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what would otherwise be mere matter of evidence Commonwealth v. Moltz, 10 Barr 527; for which he cites many authorities. This is the great test of estoppels in pais. Whenever the acts or declarations of a party mislead another, and induce him to invest money, or change his rights, so that, without maintaining intact the position occupied by the party so induced, it [82] would result in injury to him, and would be a fraud on him to set him back to the point from which he had been misled, there the doctrine of estoppel in pais applies with full efficiency, and holds the party misleading to his acts and declarations, and estops him from denying the one or controverting the other. No one was misled or injured in this case. The sum for distribution was over $7000, and it was all applied to claims against the estate. The plaintiff’s own claim was over $14,000. So that it is apparent, if any danger existed of injury to any one in not coming in on this fund, it was the plaintiff himself. But the consequence of not coming in is provided for by the Act of 29th March 1852. In the 19th section it provides that, when a creditor shall neglect or refuse to make his claim for debts due him, “ he shall not be entitled to receive any dividends of such remaining assetsPurd. Pig., p. 211 — that is, of the assets for distribution according to the provisions of the act. He cannot claim a share of them. But he is not barred from recovering a judgment, and looking to the real estate of the testator or intestate for satisfaction. The legislature have not said so, nor is there any implication but to the contrary in the act cited. Mr. Ewing pursued this course in regard to his claim, and he had fall right to do so under the circumstances of this case. He goes for satisfaction out of the real estate, and it is obvious that, if he had come in for a share in the distribution, creditors, including himself, to the extent of his claim, would have had to resort to the real estate, so that in no contingency did his course result in injury to the estate of Mrs. Sergeant. There was' no error therefore in sustaining the demurrer.
The executors put in the pleas of “ non assumpsit testatoris,” “payment with leave,” “set-off” “no assets,” and “ptene administraverunt.”
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The opinion of the court was delivered by
Thompson, J.
— This was an action of assumpsit, brought by the defendant in error, who was plaintiff below, to recover the amount of certain accounts made with the testatrix in her lifetime. To this recovery the executors interposed certain matters in law, and by way of estoppel, as follows:—
Letters testamentary having been granted to the plaintiffs in error, executors named in the will of Mrs. Sergeant, and a year and more having elapsed thereafter, Ewing, the plaintiff below, claiming to be a creditor, presented a petition to the Orphans’ Court of the county of Philadelphia, praying for a citation to the executors to settle their account. The prayer was granted, the citation issued, and, in process of time, the executors filed their account, and an auditor was appointed to settle and adjust the same “and report distribution,” which was performed by him, and the report confirmed by the Orphans’ Court. The plaintiff took no further part in these proceedings after presenting his petition, did not appear before the auditor, or exhibit any account or claim against the estate whatever. On the trial of this case below, [81] the executors plead specially this proceeding, and claimed for it the effect of a former recovery and judgment between the parties, and that the plaintiff could not recover in this action.
It is not doubted but, that, if the plaintiff had submitted his claim to the adjudication of the auditor, and it had been passed upon by him, and his report confirmed by the Orphans’ Court, it would have been conclusive on him: Kittera’s Appeal, 5 Harris 422; and he would have been estopped from contesting in the future-what had been passed upon under this proceeding. But he had a full right to move as far as he did for either of two purposes, or both, namely, to ascertain, by compelling a settlement of the executor’s accounts, the precise amount of the personal estate, so as to govern his action in regard to proceeding to bind the realty; or, for the purpose of having his claim finally ascertained and adjusted by this tribunal, so as to claim a share in the distribution consequent on the settlement. Either purpose was legitimate, and there is surely no rule of law that will hold him bound by an adjudication to which he was stranger in fact, and wherein the subject-matter of his claim was never passed upon. There must either be evidence showing adjudication, or law that the party was bound to submit his claim to the tribunal, in default of which he would be as fully bound as if he had submitted. We think that neither of these necessary elements existed in this case. “ We look to the narr. to see what was passed upon:" Buffington v. Burhman, 4 Penn. L. J. 418. This is generally the medium of proof in courts of record; and, in every other tribunal, we look for something equally indicative. Here, however, it is not claimed that the plaintiff submitted his accounts to the executors, or that they were passed upon by the auditor, or distribution made to him. But this part of the case was placed upon the ground of estoppel, either by matter of record or in pais. It cannot be an estoppel of record, for there is no record; and, besides, the jurisdiction did not attach upon plaintiff’s claim by a mere presentation of his petition, which may have been for either of two purposes, as we have shown, materially different. Even if it might have been helped by proof, the fact of adjudication does not exist.
Was it an estoppel by matter in pais ? There is not one element to constitute this result. “ It is now established,” says Mr. Justice Bell, “ that in all cases, when an act is done, or a statement made, by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what would otherwise be mere matter of evidence Commonwealth v. Moltz, 10 Barr 527; for which he cites many authorities. This is the great test of estoppels in pais. Whenever the acts or declarations of a party mislead another, and induce him to invest money, or change his rights, so that, without maintaining intact the position occupied by the party so induced, it [82] would result in injury to him, and would be a fraud on him to set him back to the point from which he had been misled, there the doctrine of estoppel in pais applies with full efficiency, and holds the party misleading to his acts and declarations, and estops him from denying the one or controverting the other. No one was misled or injured in this case. The sum for distribution was over $7000, and it was all applied to claims against the estate. The plaintiff’s own claim was over $14,000. So that it is apparent, if any danger existed of injury to any one in not coming in on this fund, it was the plaintiff himself. But the consequence of not coming in is provided for by the Act of 29th March 1852. In the 19th section it provides that, when a creditor shall neglect or refuse to make his claim for debts due him, “ he shall not be entitled to receive any dividends of such remaining assetsPurd. Pig., p. 211 — that is, of the assets for distribution according to the provisions of the act. He cannot claim a share of them. But he is not barred from recovering a judgment, and looking to the real estate of the testator or intestate for satisfaction. The legislature have not said so, nor is there any implication but to the contrary in the act cited. Mr. Ewing pursued this course in regard to his claim, and he had fall right to do so under the circumstances of this case. He goes for satisfaction out of the real estate, and it is obvious that, if he had come in for a share in the distribution, creditors, including himself, to the extent of his claim, would have had to resort to the real estate, so that in no contingency did his course result in injury to the estate of Mrs. Sergeant. There was' no error therefore in sustaining the demurrer.
The executors put in the pleas of “ non assumpsit testatoris,” “payment with leave,” “set-off” “no assets,” and “ptene administraverunt.”
The exemplieation of these proceedings in the Orphans’ Court, which we have just been considering, were offered under the plea of plene administraverunt. The testimony was overruled, and this forms the 3d assignment of error. The trial resulted in a general verdict for plaintiff, and, to prove that the court erred in rejecting the evidence, it was contended before us that this was a finding against the executors on the last named plea — rendering them personally liable. This is not so. The 7th section of the act of 24th February 1834, expressly provides “ that no mispleading, or lack of pleading, by executors or administrators, shall make them liable to pay any debt or damages recovered against them in their representative character beyond the amount of the assets which in fact may have come, or may come, into their hands:” Brightly’s Purd. 200. This act was passed to remedy what the courts had complained of as a wrong long previously. In Sinclair v. Wilson, 3 Penn. Rep. 167, the court held the following language on the subject: — “ The decisions of courts of common law, [83] Tby which an administrator, who neglects to plead, ‘ fully administered,’ or ‘ want of assets,’ is held to admit assets, are among the most harsh and unreasonable. It was introduced at a time when many supposed the world ought to be governed by logic, and that an abstract syllogism was the only test of the truth and justice of anything. The declaration then always, after stating the demand against the deceased, averred that assets sufficient to pay had come to the hands of the administrator. The administrator often denied the claim of the plaintiff; and, if he omitted to reply to the averment that assets came to his hands, to say that therefore they did come, or that it was admitted they came to his hands, was a non sequiter. At best it only proved that his attorney was a careless pleader. But it was so settled; and, whether the law is so in this state, or whether our Acts of Assembly have changed it, I shall not inquire. I will only say, if our statements do not aver that assets came to the hands of the administrator, it is not easy to say why in his pleading he should deny what is not alleged, or how issue could be taken on such a plea without a departure Per Huston, J., in 1831. This was the feeling of the courts before the Act of 1834. The courts and the legislature all wanted to get rid of the trap this plea constituted for the unwary, and hence their decision and this act. We shall not be likely to place any such construction on the mispleading or non-pleading of it as to make parties liable when they ought not be made so liable.
But it has been contended in this case that the plea being in, the consequence of the verdict for plaintiff below was to fix the executors for the debt. If the Act of 1834 had never existed, this would not have been the result. The narr. contains only the common counts for money had and received — lent and advanced — work, labour, and services done and performed —account stated, &c., without a single averment that there were assets in the hands of the executors so as to call for the plea, without which it was out of place; and, being put in and issue taken on it, it was simply a departure in pleading and irregular: Sinclair v. Wilson, 3 Penn. Rep. 167. If the declaration had charged the executors directly with a devastavit, or with having money in their hands applicable to plaintiff’s claim, then the plea would have been a proper one. This not being so, it was irregular, and a clear case of mispleading, which worked no injury; certainly not, since the Act of 1834. There was, therefore, no error in the decision of the court on this subject.
In the remaining assignments we perceive no error. It is too well settled now to be doubted, that accounts rendered to a party indebted, by his creditor, and not objected to in a reasonable time,, are primd facie evidence against the party to whom rendered: Porter v. Patterson, 3 Harris 229; Bevan v. Cullen, 7 Barr 281; Jones v. Dunn, 3 W. & S. 109; Killam v. Preston, 4 W. & S. 14; [84] Thompson v. Fisher, 1 Harris 310; Phillips v. Tapper, 2 Barr 323. This was what the court below ruled, and we think they were right.
Nor was there any error in admitting the record in the action for mesne profits in evidence. It was a means of showing that a claim, by way of set-off, made by the executors, had already passed in rem judieatum between the testator and plaintiff, and ought not again be litigated between the same parties. It was a judgment of a competent court on the point, and was entitled to be received, and was conclusive between the parties to it as well as privies.
After verdict there was a motion in arrest of judgment, because there were incongruous counts in the narr. and a general verdict. We treat them as bad, if incongruous, and the court below very properly confined the verdict to the good counts: 5 Barr 60; 9 S. & R. 23; 10 Barr 372; 2 Harris 352. There being no error in the record this judgment is affirmed.
Judgment affirmed.