Stiver's Appeal

The opinion of the court was delivered, October 28th 1867, by Strong, J. Of the several exceptions taken in.the Orphans’ Court to the confirmation of the sale, the first three call in question the right of the court to make any order to sell. It is said the administrator had filed an account which had not been passed or confirmed, and that the account, if corrected, would have shown a balance in the hands of the accountant, instead of indebtedness of the estate to him. If this were so, it would be of no importance other than as exhibiting one unpaid debt less than appeared when the sale was ordered. But the correction which the appellant insists should be made is unwarranted. The account having charged the administrator with the entire personalty of the deceased, he was properly credited with $213.12, the appraised value of the goods set apart for the widow. The proof is clear and uncontradicted that the goods were appraised and set apart for her. To this two of the appraisers testify directly. It is further objected that no schedule showing the indebtedness of the estate was filed with the petition for the order of sale. It is certainly true that an Orphans’ Court is not warranted to award an order to sell the real estate of a decedent, at the suit of an executor or administrator, before a just and true account, upon oath or affirmation, of all the debts which have come to the knowledge of the petitioner, shall have [13] been exhibited to it. But the Act of Assembly does not require that such account or schedule shall be filed with the petition. Filing it is the better practice, but an exhibition of it is all that is expressly required. It is for the information of the court, that the judges may determine whether the sale asked for is necessary or expedient. The court must be satisfied that there are debts that cannot be paid with the proceeds of the personalty,. And as the court must be thus satisfied — as an exhibition of such a statement is a pre-requisite to an order to sell — after an order, it must be presumed that such an exhibition was made. ■ Certainly this presumption exists in the absence of all proof to the contrary. In the present case there is not only no such proof, but it appears affirmatively that the court was informed of the unpaid debts of the decedent. The petition represents a just and true account of them as exhibited with it. The record shows that there was an exhibit, and that the court was satisfied of the propriety of a sale. It is not even now contended that no such exhibit was made. The burden of the complaint is that the one exhibited was not accurate, and was not sufficiently detailed. If, however, it satisfied the court, ground was laid for the order, and we should not be justified in setting the sale aside after it has been made and confirmed, and after its proceeds have been distributed. The next exception is that 'the widow had no notice of the application until after the order of sale was granted. It might have been proper that notice should have been given, but it was not required by the law. She had notice before the sale was confirmed. See Weaver’s Appeal. The 4th exception is that the order was for the sale of two lots of land, and the exceptant believes one was sufficient. It is enough for this that the court exercised its discretion in view of the debts to be paid and the property ordered to be sold. And the result shows that its discretion was exercised wisely. The final settlement of the account has proven that the proceeds of sale of both lots have been consumed in the payment of the debts. The 5th exception is substantially a repetition of the 4th. The only remaining one is that the administrator returned the property as sold to James Toy, when in fact it was struck down to Barclay, who was the highest'bidder. It is, however, clearly established that Toy was the second bidder through Adam Dun-more. It is also proved that Barclay refused to comply with his bid except upon conditions that he had no right to exact, and that neither the court nor the administrator could, allow. It was not, under these circumstances, wrong to allow the sale to be returned as made to the next highest bidder to Barclay. None of the exceptions, therefore, are sustained. We do not [14] overlook the fact that the proceedings in the Orphans’ Court were loose, but there is not, in our opinion, sufficient to justify us in disturbing the sale which has been made. The decree of the Orphans’ Court is affirmed, and the appellant is ordered to pay the costs.