Marr's Appeal

Mr. Justice Mercur delivered the opinion of the court, January 17th 1876. This was an application hy the appellant to have a decree of the Orphans’ Court vacated, which had discharged the appellee as her guardian. The object was to have the decree removed so as to compel him to file and settle the account of his guardianship. On the day after the appellant became of full age, she had made a final settlement with the appellee. She had then duly executed, under seal, acknowledged and delivered to him, a full release as her guardian, both in New Jersey and in Pennsylvania. About a month after its execution, on the presentation of a petition duly signed and acknowledged by both the appellant and the appellee, he was discharged by a decree of the Orphans’ Court here. More than nine months thereafter she presented her first petition, asking for an order on him to file and settle his final account. After nearly the same interval of time, she presented a second petition, in which she further asked that the release which she had given him be declared null and void, and that the decree be vacated. In neither of the petitions was any distinct act of fraud specifically and particularly averred. Where an account is sought on the ground of fraud, it’ is not sufficient to make such a charge in general terms, but it should be pointed, and state particular acts of fraud: Bright. Eq. Juris., § 57. The attempt here was to have set aside and vacated, on a general allegation of fraud, a final decree of a court of record. It was a decree made by a court, in regard to its own records, at a time when all the parties were before it. Its jurisdiction of the subject-matter and of the persons was undoubted. She was under no legal disability when it was made. It was then an application to the equitable power of the court to cause it to set aside one of its own decrees. The application ought not to have been entertained, without some distinct and specific act of fraud having been averred in procuring the decree, and without the additional averment of some specific error and wrong that had been committed, which could not otherwise be corrected. Fraud without damage is no ground for relief at law or in equity: Bispham’s Eq., § 217; Clarke v. White, 12 Peters 178. That a decree obtained by fraud, and resulting in injury, may be impeached, is undoubted. It may be done by original bill, without the leave of the court: 1 P. Wms. 736; 2 Id. 73 ; 3 Id. 111. But the bill must set out the circumstances of the fraud. The fraud used in obtaining the decree is the principal point in issue, and must be established by proof before the propriety of the decree can be investigated: Johnson’s Appeal, 9 Barr 416. It follows then that the court would have committed no .error if it had refused to entertain the application. Having decided other [70] wise, the obligation rested on the appellant to establish by proof, facts sufficient to show fraud in obtaining the decree. In looking through the voluminous testimony taken' by the examiner, we discover no such evidence. The appellant appears to have been an intelligent woman, of good business capacity. She was fully conscious that about a month before she united in asking for this decree, she had made a full and final settlement with the appellee, “ touching all matters and accounts between them.” She knew that on that settlement she had admitted, averred and declared in the release, which she had then executed, that “ the appellee had not received any of the rents, issues or profits of her lands, nor any moneys, interest, proceeds or profits whatever belonging to, or arising from her personal or real estate; but on the contrary he had paid out, expended and advanced, divers sums of money for her use and benefit.” She knew his functions as her guardian had ceased. She therefore recognised his right to be discharged. No witness contradicts any fact averred in the release. She does not now allege any of them to be untrue. They are conceded to be true. Being true, they established sufficient grounds for the discharge of the appellee. No fraud was then practised on the court in obtaining the decree. The appellant, however, claims that the appellee had neglected and omitted to look after her interest in some timber lands and lumber in this state. The facts on which that claim rests are briefly these. Isaac Gould, the father of the'appellant, died intestate at; his residence in Trenton, New Jersey. He left a widow and four children. Three of the children were of full age. The appellant was nearly three years under that age. The appellee also resided at Trenton. He was first appointed guardian for the appellant in New Jersey, and soon thereafter by the Orphans’ Court of Philadelphia. Gould died seised of real estate in New Jersey, and of valuable timber lands in this state; more than a year before the appellant became of full age, she made an agreement with the other heirs for a partition of the lands. The appellee refused to participate in the agreement, and she executed the writing in her own name. Sometime after the execution of this agreement she and one of her sisters, Mrs. Westeott, made an arrangement with Mr. Westeott for the manufacture of lumber on some of the timber lands in this .state, which, under the agreement of partition, were taken by the two sisters. The appellant now complains that Westeott did not fully account to her and pay over the proceeds of her share of the lumber manufactured, and that the appellee is liable to her therefor. She was nearly of full age when these transactions occurred. About the same time she entered into a contract with Westeott to sell him the undivided half of the mansion property at Trenton, [71] which she took in the partition. After arriving at majority she ratified it by deed, and confirmed the partition made with all the members of the family. She also settled and adjusted with Westcott a claim he had against her for hoard, and for money advanced. Precisely to what extent this may have affected their lumber transactions, or how far she thereby ratified and assumed the contract with Westcott, in her own right, the evidence fails to disclose. This lumber transaction was the act of the appellant and not that of the appellee. At the time she executed the release, her knowledge relating thereto was vastly superior to his. While in the possession of this information she made the settlement, executed the release, and petitioned for the decree of his discharge. Under all these circumstances it would now be most inequitable to hold him liable for any sum that may be due to her from Westcott. Her application may be considered in the nature of a bill of review, which is never sustained on strict law and against equity: Stevenson’s Executor’s Appeal, 8 Casey 318; Yeager’s Appeal, 10 Id. 173. The view we have taken does not conflict with Lukens’ Appeal, 7 W. & S. 48; Stanley’s Appeal, 8 Barr 433, and kindred cases. It is not now to be questioned that a guardian may, within a reasonable time, be required to file and settle his account in the Orphans’ Court, although he may have made a settlement with his ward on his arriving at full age. The 11th section of the Act of 29th March 1832, Purd. Dig. 413, pl. 44, has been urged as prohibiting the Orphans’ Court in all cases from discharging a guardian until he shall have first filed and settled his account in said court. A careful consideration of that section leads us to a different conclusion, and one which accords with the practice in many parts of the state. The whole of that section which precedes the proviso declares, “ the Orphans’ Court shall have power, upon the petition of any such guardian, to discharge him from the duties of his appointment.” It professes to extend to those cases only in which the discharge is granted on the petition of the guardian alone. The proviso then declares what action shall precede the discharge thus asked for by the guardian. It does not enlarge the application of the enacting part of the section to cases not included within it; but restrains and qualifies its operation. A proviso is something engrafted upon a preceding enactment: 9 B. & C. 835; Dwarr. on Statutes 514. Then, without that enacting clause the proviso has no support. It is not self-sustaining. The basis of its power and the source of its strength is that original root. It extends to the class of cases only which are covered by that enactment. The more prominent thought expressed in this section is to provide for the discharge of a guardian before the ward shall have become of full age. The first proviso, inter alia, directs the sur [72] render of the estate to a subsequent guardian of such ward, or to such other person as the court shall appoint to receive it. The second proviso declares “ it shall be the duty of the court to appoint some suitable person to appear and act for the ward in respect to the settlement of such account.” It manifestly is not the design of the act to make it obligatory on the court “ to appoint some person to receive the estate” after the ward has passed his minority, whether one month or ten years, nor to act for him, when he is competent to protect himself. But conceding that the spirit of the act also requires that the account of a guardian shall in all cases be filed and settled in the Orphans’ Court, before he shall be discharged under that section, it still limits the' operation of the enacting clause to those cases wherein the discharge is asked for “ upon his own petition.” The act is wholly silent in regard to granting the discharge of a guardian, on the concurring petition and request of a late ward, after he or she shall have arrived at full age. After the ward has arrived at full age, and being sui juris, she may undoubtedly waive her legal rights, and join with her former guardian, in asking for his discharge. When she does so unite in the request, the power of the court to grant it is clear. To deny this, is to impose upon her a guardianship beyond her minority, and make it of uncertain duration. We concede that in such cases the court should act with due caution, and be satisfied that no fraud was being perpetrated, in obtaining the decree of discharge. In this case the court did so act and was satisfied. They are still satisfied that no fraud was practised on them in procuring the decree, and have refused to vacate it. In the face of this action there is no warrant for saying that any fraud was practised on the court. It is sustained by no proof. The record substantially denies it. We hold that when to a settlement made, and release duly executed by the ward, after she arrived at full age, is superadded, on her concurring petition, a decree of the court regularly obtained, discharging the guardian and his sureties, that decree cannot be vacated without proof of some specific act of fraud in obtaining it, and of some injury occasioned thereby. The learned judge was therefore entirely correct in dismissing the petitions. Appeal dismissed, and proceedings affirmed with costs, to be paid by the appellant. Chief Justice Agnew and Justices Sharswood and Paxson dissented.