Parker's Appeal

The opinion of the court was delivered, May 11th 1869, by Thompson, C. J. The cases of Mothland v. Wireman, 3 Penna. 188, and Dent’s Appeal, 10 Harris 514, abundantly show that assets are not to be transmitted to the administrator or executor of the domicil when there are domestic claimants or claimants within the jurisdiction of the ancillary administration. It would be a waste of time to discuss what we see so ably discussed in the opinion of Lewis, C. J., in the last-mentioned case. There are a number of legatees under the will of Isaac Brown Parker in this Commonwealth, and it being admitted that there are no debts to be paid in New Jersey, there is no reason whatever for sending the Pennsylvania assets there for distribution, especially as the same persons are accountants in both states. The rule against transmission when there are domestic claimants, creditors or legatees, is too firmly settled upon authority, and is not to be departed from or doubted. The auditor and court were entirely right in maintaining, as they did, this principle. Implied trusts to executors result from the intention of their testators, to be gathered from the terms and provisions in wills, and have always been more or less common. Several English cases have been cited, and among them Bush v. Allen, 5 Mod. 63, and South v. Allen, Id. 101, in which trusts to executors are implied from provisions very similar to the case in hand, and it is not improbable that we might feel ourselves impelled to imply such a trust in this and cases like it, were it not that the legatees for life are placed on the footing of trustees for those in remainder, in regard to the thing, or the principal of the fund devised for life, by the 44th section of the Act 24th of February 1834. That act requires legatees to give security in the Orphans’ Court having jurisdiction of the account of the executors, to protect the interest of those in remainder, before the executors shall deliver the property or pay over the money to the legatees for life, and which security, like that of trustees by appointment, is liable to the supervision of the Orphans’ Court at all times. The existence of the law is a reason for inferring that no trust in the executors was contemplated by the testator in this case. But these considerations, while they persuade us, we will not say they rule our decision, for it rests also upon our own precedents. Our courts follow the rule, whenever it is applicable, that “ the bequest of the use of a thing, or the product or interest of a fund, is as a rule to be regarded as a bequest of the thing itself.” [485] The bequests in question, although restricted in extent, are direct as to the corpus. They are: “I bequeath to her (the legatee) $50,000, the interest of which to be paid to her during life, and the principal to her children at her death.” This is a direct bequest of the principal for life, and is not to be overcome by the implication arising from the words “ to be paid” or “ shall be paid,” that it is to be paid by the executors, and thus continue their duties to an indefinite period. Implications often yield to counter implications, and always to positive and clear directions. These implicative words, or claimed to be such, seem to me to depend mainly on the use to which the interest is to go, rather than an implication of a trust. As the principal fund was necessarily intended to be invested in some way in order to produce an interest, it was not an uncommon mode of expression to say it was “ to be paid” to the legatee entitled to receive it. If invested, the interest would be paid by somebody to the party entitled, and in this sense we may regard the words to have been used, especially in the presence of the clear bequest of the fund to the legatee. The cases of Rodgers v. Rodgers, 7 Watts 15, and Clevenstine’s Appeal, 3 Harris 495, are cases like the present; they were bequests of the principal, coupled with a trust, the interest to be enjoyed for life on giving security under the Act of Assembly to preserve the principal or property for children. The learned auditor was entirely right, therefore, in the view he took of these bequests, and in holding the principal payable to the legatees for life, on giving security, as required by the Act of Assembly. We see no good reason for setting aside the decree in this case on the ground that a credit of $14,802, uncollected bonds, in New Jersey, was not credited to their account in this state, instead of being included in their account in adjusting the proportions to be distributed under the account here. I see no difficulty in correcting that, in the account not yet settled in New Jersey, or in the final account of the executors. If they account for moneys of the estate here, strictly within the jurisdiction of the surrogate in New Jersey, there cannot be a doubt but that it would be allowed as a credit there, a final account of the New Jersey assets not having passed, and the executors and claimants being the same in both states. Nor do we think we ought to reverse the decree of distribution in the Orphans’ Court, because it was made on the report of an auditor, the decree itself being right. There being no exceptions to' the account, the court might have decided the questions of law in the ease without an auditor. Still we see nothing in the Acts of Assembly, applicable to the Orphans’ Court of this county, to prevent the appointment of an auditor or auditors to make distribution in the absence of exceptions ; while there is, in other parts [486] of the state, by the Act of 14th April 1835, § 1: Rhoads’s Appeal, 3 Wright 187. Even if we were in error as to this, the report of the auditor would not vitiate the décree predicated of it. The only redress would be to strike off the compensation allowed to the auditor. The business of the Orphans’ Court of Philadelphia is so large that it is hardly possible for the court to get along without the aid of auditors, and we do not see that the court are confined to the cases where there are exceptions in appointing them; but unconscionable charges should be guarded against. The auditor should be allowed compensation according to his work, and not measured by the ability of the estate to pay. We do not see any solid reasons for charging the costs incident to the citation in this case upon the shares of Mrs. Moore and Mrs. Grubb in the estate of their father. More than a year had elapsed without an account filed by the executors, consequently they were liable to a citation to quicken their movements. It enured to the benefit of all the heirs; and because the executors were not held to have been in default, owing to certain proceedings in equity, and therefore not liable to the costs and expenses of it, that was no reason they should interfere to put the costs on the heirs who acted, instead of upon all equally benefited. This portion of the decree was unexceptionable under the circumstances. The decree of the Orphans’ Court appearing to be right in all the particulars complained of it is affirmed, the costs to be paid out of the estate, and the appeal is dismissed. After the foregoing decision John Brown Parker, acting executor and one of the legatees, on the 9th of September 1869 filed a bill of review in the Orphans’ Court of Philadelphia county, setting forth that there were errors in the report upon which the decree was founded, and in the decree itself, which, if not corrected, would be injurious to his rights and interests; and prayed the court to review the said report and decree thereupon, and to grant a rehearing of that part thereof, alleged to be erroneous, to cause said errors to be corrected, and the report and decree to be modified, and for such relief as equity might require, in accordance with the Act of Assembly. On December 7th 1869 he filed his petition in the Supreme Court, setting forth his foregoing application to the Orphans’ Court, and that in order to remove any technical objection against the consideration by that court, of the petition for review, and to prevent a seemingly improper interference by the Orphans’ Court, in its action upon the petition, with a decree of the Supreme Court, prayed for a rule to show cause why there should not be added to the decree of this court, these words:— “ Any party in interest having the right, before the payment of the sums awarded by the auditor’s report, to correct by petition [487] or bill of review, in the Orphans’ Court, mistakes and errors, not of judicial judgment, apparent on the face of the account, and report of the auditor, if any such there are.” A rule to show cause was granted, and on the return thereof, E. H. Hanson and Daniel Dougherty argued in support of the rule. — The bill of review was filed in the court below, under the Act of October 13th 1840, § 1, Pamph. L. of 1841, p. 1, Purd. 301, pl. 173. In Counts of Chancery, additions which do not affect the principles of the decree, but correct evident mistakes, are allowed even after action taken under the decree: Eyles v. Ward, 1 Dickens 58; Spearing v. Lynn, 2 Vernon 376; Newhouse v. Metford, 12 Vesey 456; Tomlins v. Polk, 1 Russell 475; Shine v. Gough, 2 Ball & Beatty’s Rep. 33; Hughes v. Jones, 26 Beav. 24; Viney v. Chaplin, 3 De Gex & Jones 282. Where errors in a decree are obvious, the court will rectify them, even after enrolment: Fearon v. Desbrioay, 21 L. J. Chan. 511, 16 Jurist, part 1, p. 164. The courts of law have a similar power of amendment: Short v. Coffin’s Executor, 5 Burr. 2730; George v. Howard, 7 Price 661. The power to correct mistakes in decrees exists in the inferior courts of this Commonwealth: Crutcher v. Commonwealth, 6 Wharton 340; Chew’s Appeal, 9 W. & S. 151; Smith v. Hood, 1 Casey 218. Permission for review by the lower court should be first given by the Supreme Court: Southard v. Russell, 16 Howard 547. W. L. Hirst and Strong showed cause against the rule. — They contended that amendment must be made during the term at which > the decree was passed, and that when the term had gone by, such an addition, as is here asked for, could not be allowed. The opinion was delivered January 22d 1870. Per Curiam. — We are clearly of opinion, that the Orphans’ Court can entertain a bill of review, under the Act of 1840, notwithstanding the decree of afiirmance of this court. The amendment asked for is, therefore, unnecessary. Bule dischai’ged.