Breneman's Estate

The opinion of the court was delivered, May 12th 1870, by Thompson, C. J. The exception to the admission of the accountant Hershey, to testify as a witness before the auditors, is fruitless, unless it be shown that his testimony led the auditors into some specific error. That has not been done. The main charge against the estate of the defendant, was, for boarding her. The fact of the boarding was not a disputed fact, and there was enough in the testimony to enable the auditors to fix the amount proper to be allowed per week. On these subjects, however, the accountant did not testify. His testimony had reference exclusively to an explanation of a credit allowed the decedent’s estate, [300] and we were not shown wherein it injured the appellants and misled the auditors. Without specific injury being shown, we cannot say the court ought to have set aside the work of the auditors. Indeed this could not be done, unless this were clearly shown. The idea of the learned counsel for the exceptants seemed to be, that the error of admitting an incompetent witness to testify, even on a single point, before auditors, was to have a like effect on the entire report as the same thing would have in a common law action. But this is a mistake; it only would affect so far as it would mislead, or where it might be the only testimony to support an item, or the entire subject -of dispute. Items so sustained might have to be stricken out for want of competent testimony, but the balance of the account would be sustained, if other evidence supported it. We think the accountant was not a competent witness, under the Act of 1869; nor perhaps under the 56th section of the Act of 29th March 1832, authorizing auditors to examine the parties on oath to an account before them. The authorities seem to hold, that the party is only to be admitted to answer on oath under the mandate of the auditors, and cannot offer himself as a witness: Mylin’s Appeal, 7 Watts 64. But all this is really of no consequence here, for no item in the account seems to have .been carried alone by the testimony of the accountant. We cannot say the auditors erred in any portion of their finding. In the absence, therefore, of specific error shown to have been committed by them, the court were right in confirming their report. The decree of the court below is affirmed, and this appeal dismissed at the costs of the appellant.