Speakman's Appeal

The opinion of the court was delivered, by Williams, J. Unquestionably the finding of an auditor, if not supported by the evidence, may be set aside or disregarded by the court; but like the verdict of a jury it should be allowed to stand, unless it is clearly against the weight of the evidence. In this case the auditor found that the administratrix is not chargeable with the proceeds of the seven hundred dollars in gold which she paid to James Miller, in part consideration of the property purchased of him in October 1864, and which is alleged to have belonged to her present' husband, to whom the property was conveyed. The appellant complains of the auditor’s finding in this respect, but we fail to discover any sufficient evidence to justify us in ■ setting it aside, and charging the administratrix with the proceeds of the gold in question. There is no positive evidence that the money belonged to her deceased husband. It was not shown to have been in his possession at any time during his life, nor in the possession of the administratrix until some months after his death. How then can we say that the auditor erred in not finding that it was the decedent’s money, in the face of the positive testimony of the administratrix that it belonged to her p'resent husband and that she received it from him after their marriage ? The question is not whether the evidence leaves any doubt as to his ownership, but whether it shows with reasonable certainty that it belonged to the decedent. We think it does not, and the finding of the auditor must, therefore, be allowed to stand. The auditor rightly decided that the earnings of the wife belonged to the husband, but he should also have charged the administratrix with the money received from her father in 1841. If it was a gift from her father, as alleged, then, as soon as it was received by the wife, it became the absolute property of the husband, without any act on his part, unless he waived or relinquished his right to it, of which there is no evidence. The administratrix is therefore bound to account for the proceeds of the gold derived from her own earnings and the gift of her father. But she is entitled to retain three hundred dollars out of the proceeds, unless, as the appellant contends, she is estopped by having fraudulently claimed the money as her own. It does not follow that she was guilty of intentional fraud in claiming the money. She may honestly have supposed, as it was the product of her earnings and the gift of her father, that she was entitled to it in her own right, and was not liable to account for it as the property of her husband. And this we think is the reasonable presumption from the evidence. Claiming the money as her own, under the circumstances of this case, is not in itself such evidence of fraud as should prevent the administratrix from retaining the amount allowed by the exemption acts. But we discover no sufficient reason for allowing the administratrix credit for the expenses of [30] the former audit, and a fee of fifty dollars to her counsel for professional services; and these items must, therefore, he stricken out of the account. The administratrix, as the auditor has found, sold a part of the personal estate at public vendue, but she did not file in the office of the register a just and true account of the articles sold and the prices and purchasers thereof, as required by the Act of 1834; nor did she charge herself with the amount realized from the sale of the property in excess of its appraised value. Having thus failed in the performance of her duty, and having presented an account of her administration of the estate, which she must have known to be incorrect, she is not entitled to an allowance for any of the expenses incurred by the audit. Correcting the account in accordance with the foregoing opinion and adding interest to date, the balance for distribution in the hands of the administratrix is shown by the annexed statement to be twelve hundred and ten dollars and three cents ($1210.03), and for this amount the decree must be entered. And now February 26th 1872, the decree of the Orphans’ court is reversed and modified in accordance with the statement hereto annexed, exhibiting a balance of twelve hundred and ten dollars and three cents ($1210.03), at which sum the account is finally confirmed : and the said balance is ordered to be distributed according to law. And it is further ordered that all the costs be paid by the appellee. Hr. Amount of appraisement and amount realized at public sale in excess, as per report of auditor, ...... $335.00 Int. from Sept. 1st 1863 to Feb. 24th 1872, 170.51 _ $505.51 Surcharge of $400 in gold sold at $2.60, $1040.00 Deduct amount allowed administratrix under exemption act,..... 300.00 $740.00 Int. from Oct. 1st 1864 to Feb. 24th 1872, 343.36 - 1083.36 $1588.87 Or. Amount allowed by auditor, less commissions, $251.06 Int. from Sept. 1st 1863 to Feb. 24th 1872, 127.78 378.84 Balance,........$1210.30