The opinion of the court was delivered, by
Agnew, J.
This is an attempt, after forty years have elapsed, to recover from an administrator one-third of the balance of an account settled in 1821 by him and the widow of the decedent, as co-administrators, on the ground that the money remained in their hands to answer the widow’s interest in the real estate of the decedent. This is sought to be accomplished, not by proving an arrangement to this effect to remove the presumption of payment arising from lapse of time ; but by inferring that this third stood in the relation of purchase-money charged upon real estate to answer the annual interest of the widow, and not falling due until her death. There is no evidence that any such arrangement was made in fact, nor proof of any acknowledgments made of its existence. Indeed there is not a trace in the evidence even of such a tradition, while it is distinctly denied on oath by the surviving administrator, who alleges that the balance of the account, after crediting what was due for the maintenance of the children, was secured by a mortgage and bonds to their guardians. The auditor says in his report, it is hardly necessary to say that two-thirds of this sum ivas payable presently, and the remaining third at the death of the widow, with interest to her during life. But this was evidently said by him not as a conclusion of fact from any evidence before him, but from the law as to the distribution of the residue of the proceeds of an Orphans’ Court sale of the real estate of an intestate, and is in direct conflict with an important fact found by himself on the evidence, to be presently noticed.
The case went before the auditor, Judge Haines, a gentleman eminently fitted to examine and decide it, who after full investigation came to the conclusion that the mortgage and bonds taken to the guardians, in the year 1822, were accepted by them in full satisfaction of the balance stated in the administration account. His report was set aside by the court in an opinion, not founded [492]*492on any thorough analysis of the transaction and its inherent probabilities, but upon general and somewhat vague grounds. The second auditor, to whom the case was referred, did not undertake to revise it upon its facts, but following the opinion of the court, reported that there was nothing in the new evidence taken before him to change the judge’s conclusion.
The leading facts explain the transaction, and support the conclusion of the former auditor, and are in turn supported by the intrinsic probabilities of the case. The sale by the administrators to Bodley, who bought for Hall, the then husband of the widow, who was an administratrix of the decedent, was made for the payment of debts, and not under proceedings for partition. The one-third of the proceeds of sale was therefore not required by law to remain charged upon the estate. The next and conclusive fact which proclaims the character of the fund contained in the administration account, is, that the sale was made subject to the widow’s dower, thus leaving her interest remaining in the land, that interest being simply a life estate. This is conclusive of the ownership of the proceeds of the sale. They represented the entire estate of the decedent, and consequently of his heirs, leaving the purchaser subject to account to the widow for her dower only. Her dower being charged upon the land in the hands of the purchaser, could not go into the proceeds of sale, and therefore she was not entitled to the interest bf one-third of' the proceeds; but they, after payment of the debt, belonged wholly to the heirs. The purchaser by his bid, subject to her dower, therefore paid the whole value of the estate less the value of the dower. It is no answer to this to say that the administrators had no right to make a sale in that way. It is the fact with which we must deal, and this fact appears conclusively by the subjection to dower contained in both deeds, one to Bodley and the other to Hall, and in the mortgage given to the guardians. There were good reasons for this mode. There was a large surplus beyond the payment of debts, and the creditors had no interest to interfere ; while Hall, for whom Bodley purchased, was interested in keeping down the last payment by retaining the widow’s dower in the premises, of which he, as her second husband, was entitled to enjoy the fruits. She also had ■ the same interest, for the purchaser was her husband, and she would remain along with him in the possession of the land and in the enjoyment of her estate.
Nor is the subjection of the sale to the widow’s dower the blunder of some ignorant scrivener. The. language of the clause of subjection is evidently that of a professional mind, or of a skilful conveyancer. The two deeds containing this clause are dated in 1818, whilst the mortgage bears date four years later, and contains the same clause. This was clearly the result of intelligent design. That the parties under[493]*493stood what they were about is evident from the mortgages given by Hall and wife to Joseph H. Brinton, on the 10th of June 1821. There was no such clause of subjection in these, and Mrs. Hall joined in that one which covered the Coffman premises, manifestly to convey her own interest as the widow of Coffman, subject to which Hall had bought, and which he could not convey to Brinton.
Now when we come to examine the mortgage of Hall to the guardians of the heirs of Coffman, we find it precisely corresponding to these facts, and consistent with the nature of the proceeds of sale. It was clearly taken for the purpose of securing to the heirs the money coming to them. This money was the whole balance of the settled account, because it represented the residue of the price, less the widow’s dower, left in the land. What was sold to Bodley according to the deeds (and in this respect the mortgage follows them) was the full value of two-thirds of the land, and the p,lue of the other third less the value of the widow’s life estate in it. Hence, when the guardians took the mortgage subject to the widow’s life estate in one-third, they took it to secure just the estate which Hall had in the premises, to secure the residue of the price representing that estate, which was the estate of the heirs alone. The bonds were made payable absolutely in one year, representing therefore a present, and not a contingent, interest. This was just what the rights of the parties demanded. The widow’s estate remaining in the land, she was not entitled to the interest on one-third or any part of the balance of the account. There was therefore no reason for leaving oné-third of the balance out of the mortgage, or for suspending it during her lifetime. Thus the bonds and mortgage exactly consist with the sale and the terms of the deeds. But if the guardians knew they were taking the bonds and mortgage for the two-thirds only, as the petitioners contend, is it not remarkable they took no evidence of debt as to the other third ? Is it not inconsistent with all our ideas of ordinary business habits that they should take a-good security for a present collective debt, and leave another wholly unsecured to stand without any evidence of what was to become of it ? If we accept the argument, this third was left standing on a mere settlement of an administration account for -an indefinite and wholly uncertain term of life, which might outlast their own lives as well as their estates, as was the fact in this case. The widow lived forty years afterwards, while Neiler, one of the guardians, died many years ago insolvent, and the very bond he held for his wards is lost.
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The opinion of the court was delivered, by
Agnew, J.
This is an attempt, after forty years have elapsed, to recover from an administrator one-third of the balance of an account settled in 1821 by him and the widow of the decedent, as co-administrators, on the ground that the money remained in their hands to answer the widow’s interest in the real estate of the decedent. This is sought to be accomplished, not by proving an arrangement to this effect to remove the presumption of payment arising from lapse of time ; but by inferring that this third stood in the relation of purchase-money charged upon real estate to answer the annual interest of the widow, and not falling due until her death. There is no evidence that any such arrangement was made in fact, nor proof of any acknowledgments made of its existence. Indeed there is not a trace in the evidence even of such a tradition, while it is distinctly denied on oath by the surviving administrator, who alleges that the balance of the account, after crediting what was due for the maintenance of the children, was secured by a mortgage and bonds to their guardians. The auditor says in his report, it is hardly necessary to say that two-thirds of this sum ivas payable presently, and the remaining third at the death of the widow, with interest to her during life. But this was evidently said by him not as a conclusion of fact from any evidence before him, but from the law as to the distribution of the residue of the proceeds of an Orphans’ Court sale of the real estate of an intestate, and is in direct conflict with an important fact found by himself on the evidence, to be presently noticed.
The case went before the auditor, Judge Haines, a gentleman eminently fitted to examine and decide it, who after full investigation came to the conclusion that the mortgage and bonds taken to the guardians, in the year 1822, were accepted by them in full satisfaction of the balance stated in the administration account. His report was set aside by the court in an opinion, not founded [492]*492on any thorough analysis of the transaction and its inherent probabilities, but upon general and somewhat vague grounds. The second auditor, to whom the case was referred, did not undertake to revise it upon its facts, but following the opinion of the court, reported that there was nothing in the new evidence taken before him to change the judge’s conclusion.
The leading facts explain the transaction, and support the conclusion of the former auditor, and are in turn supported by the intrinsic probabilities of the case. The sale by the administrators to Bodley, who bought for Hall, the then husband of the widow, who was an administratrix of the decedent, was made for the payment of debts, and not under proceedings for partition. The one-third of the proceeds of sale was therefore not required by law to remain charged upon the estate. The next and conclusive fact which proclaims the character of the fund contained in the administration account, is, that the sale was made subject to the widow’s dower, thus leaving her interest remaining in the land, that interest being simply a life estate. This is conclusive of the ownership of the proceeds of the sale. They represented the entire estate of the decedent, and consequently of his heirs, leaving the purchaser subject to account to the widow for her dower only. Her dower being charged upon the land in the hands of the purchaser, could not go into the proceeds of sale, and therefore she was not entitled to the interest bf one-third of' the proceeds; but they, after payment of the debt, belonged wholly to the heirs. The purchaser by his bid, subject to her dower, therefore paid the whole value of the estate less the value of the dower. It is no answer to this to say that the administrators had no right to make a sale in that way. It is the fact with which we must deal, and this fact appears conclusively by the subjection to dower contained in both deeds, one to Bodley and the other to Hall, and in the mortgage given to the guardians. There were good reasons for this mode. There was a large surplus beyond the payment of debts, and the creditors had no interest to interfere ; while Hall, for whom Bodley purchased, was interested in keeping down the last payment by retaining the widow’s dower in the premises, of which he, as her second husband, was entitled to enjoy the fruits. She also had ■ the same interest, for the purchaser was her husband, and she would remain along with him in the possession of the land and in the enjoyment of her estate.
Nor is the subjection of the sale to the widow’s dower the blunder of some ignorant scrivener. The. language of the clause of subjection is evidently that of a professional mind, or of a skilful conveyancer. The two deeds containing this clause are dated in 1818, whilst the mortgage bears date four years later, and contains the same clause. This was clearly the result of intelligent design. That the parties under[493]*493stood what they were about is evident from the mortgages given by Hall and wife to Joseph H. Brinton, on the 10th of June 1821. There was no such clause of subjection in these, and Mrs. Hall joined in that one which covered the Coffman premises, manifestly to convey her own interest as the widow of Coffman, subject to which Hall had bought, and which he could not convey to Brinton.
Now when we come to examine the mortgage of Hall to the guardians of the heirs of Coffman, we find it precisely corresponding to these facts, and consistent with the nature of the proceeds of sale. It was clearly taken for the purpose of securing to the heirs the money coming to them. This money was the whole balance of the settled account, because it represented the residue of the price, less the widow’s dower, left in the land. What was sold to Bodley according to the deeds (and in this respect the mortgage follows them) was the full value of two-thirds of the land, and the p,lue of the other third less the value of the widow’s life estate in it. Hence, when the guardians took the mortgage subject to the widow’s life estate in one-third, they took it to secure just the estate which Hall had in the premises, to secure the residue of the price representing that estate, which was the estate of the heirs alone. The bonds were made payable absolutely in one year, representing therefore a present, and not a contingent, interest. This was just what the rights of the parties demanded. The widow’s estate remaining in the land, she was not entitled to the interest on one-third or any part of the balance of the account. There was therefore no reason for leaving oné-third of the balance out of the mortgage, or for suspending it during her lifetime. Thus the bonds and mortgage exactly consist with the sale and the terms of the deeds. But if the guardians knew they were taking the bonds and mortgage for the two-thirds only, as the petitioners contend, is it not remarkable they took no evidence of debt as to the other third ? Is it not inconsistent with all our ideas of ordinary business habits that they should take a-good security for a present collective debt, and leave another wholly unsecured to stand without any evidence of what was to become of it ? If we accept the argument, this third was left standing on a mere settlement of an administration account for -an indefinite and wholly uncertain term of life, which might outlast their own lives as well as their estates, as was the fact in this case. The widow lived forty years afterwards, while Neiler, one of the guardians, died many years ago insolvent, and the very bond he held for his wards is lost. Henry Zook, Sr., another guardian, is long since dead and insolvent, and Henry Zook, Jr., the third guardian, is insolvent, and has left the state. Clearly they had no motive thus to violate all business ideas by leaving one-third in this loose and [494]*494unsatisfactory way. It was not dependent on Mrs. Hall’s life, for her dower had been detached by the sale and left in her own hands. If they did, is it not most strange that when Hall was sold out in 1828 and became insolvent, and after he had died years ago, no attempt was made by the heirs or any of them or any one for them to secure the third thus left loosely standing upon the administration account ?
But we are told that the administrators believed they had secured this third upon the land, to be paid at the death of the widow, with interest to her in the mean time. How secured ? Not by putting it into the mortgage where it should be, but, according to the petitioner’s theory, by leaving it out. If the mortgage be for only two-thirds, as it is claimed, where is the security ? It stands in the account only; not in the land or the mortgage. How does the subjection of the land to the dower secure it ? That secures her estate, the equivalent of the interest ; but not the principal. Where, then, is this principal, this money third belonging to the heirs ? that was not secured, unless it was contained in the mortgage, where all the facts and probabilities of the case conspire to place it.
But it is said the sum in the mortgage does not correspond to the balance of the account. This balance was $4284.26; the mortgage was for $3744, or $490 less than the balance of account. The two-thirds of the balance are $2822, or $922 less than the mortgage. How is that increase of the mortgage over the two-thirds accounted for ? Not by facts, but by suppositions. Is it the back interest? This would be but $320. Perhaps it arose from interest before the settlement and from the time of sale. But this would contradict the account. The omission to charge it in the account is the best evidence that it was otherwise settled, while we know that the children were kept and maintained upon the farm. On the other hand, the mortgage was $490 less than the balance of account. Here we have the positive oath of the surviving administrator that this resulted from a credit for the support of the minors made with the consent of their guardians ; and his statement is corroborated by the nature of the circumstances and the probabilities of the case. Hall and his wife lived upon the farm and kept the children, and his receipt on one of the bonds shows that he was not keeping them for nothing. Intrinsically, too, it is more probable that the balance was reduced $490 by known causes than that the two-thirds were increased $922 by unknown causes inconsistent with the settled account and the nature of the mortgage.
It is said, however, by the court below, it was the duty of the administrators to take receipts and vouchers, and it is their own fault if they come without them. How do we know after forty years they did not take them ? The acts for recording such [495]*495releases did not then exist. Death and time work sad havoc of our most important affairs — the very bond taken by Neiler is not to be found. They must come well armed with satisfactory proof (says the court) when they asked to be discharged. But they were discharged twenty years before this application — twice twenty years had rolled around since this balance was struck. Those who aver it to be a subsisting debt must come well armed to overturn this beneficent presumption of payment. They cannot rest their proofs upon mere conjectures and suppositions, opposed as they are by the nature of the account, the deeds and mortgages, and the probabilities of the circumstances themselves.
We are therefore of opinion there is nothing in this ease to overturn the legal presumption that the balance of this account has been fairly settled, the oath of the party that the fact was so, and the finding of an intelligent and experienced auditor that such was the fact.
The decree of the Orphans’ Court is therefore set aside and reversed, and the petition dismissed, and the petitioners are ordered to pay all the costs.