Bloom's Appeal

Mr. Justice Sterrett delivered the opinion of the court, Claiming to be a creditor of the estate of Diana Gilbert, deceased, appellant filed exceptions to the executor’s final account, and procured the appointment of an auditor to pass upon the same. When the parties appeared before the audit- or, she abandoned all her exceptions save the one relating to the item of $123 paid to William Gilbert, the husband of testatrix, and sole legatee under her will. As to that item, appellant’s contention was that the payment had been wrongfully made by the executor to her prejudice as a creditor of the estate; and, for the avowed purpose of proving that she was in fact such creditor, she gave in evidence a note of testatrix on which there appeared to be due $196.74, about $100 more than tlio balance for distribution as shown by the account. This, of course, made a prima facie case in her favor, and would have warranted the auditor in surcharging accountant with the amount paid to the legatee; but the issue of fact as to her status, having been invited by appellant, the executor undertook to prove and did prove to the satisfaction of the learned auditor and court below that the note was fully paid in the lifetime of his testatrix. This line of defence was objected to by appellant; but what right had she to object to evidence tending to rebut the prima facie case she had presented? If she had shown, by the account itself, the improper blending of distribution with administration, and then rested, she might have claimed, with some propriety, a surcharge of credit to which she excepted; but, instead of doing so, she voluntarily tendered the issue which was accepted by the accountant and resulted in establishing the fact that she was not a creditor, and, therefore, had no standing in court. The finding was clearly warranted by the evidence, and, having been approved by the court, must now be regarded as conclusive. The objection that the matter passed upon by the auditor was not within the submission comes too late. The irregularity, if there was any, was cured by the approval and confirmation of the auditor’s report. In his opinion, dismissing tlio exceptions thereto, the learned Judge very properly says: “We can see no valid objection to the auditor inquiring into the claim of Mrs. Bloom as a creditor, especially when she invited investigation by undertaking to establish her status as such. In this way circuity of action was avoided. It was useless to surcharge the accountant if in the end she could derive no advantage from it. The complaint that she was thereby deprived of a trial by jury is groundless. This could have been had for the asking, but it nowhere appears that it was demanded and denied by the auditor.” This em [502] phatic approval of the course pursued by the auditor is tantamount to a previous enlargement of his authority. The decree as to appellant is definitive, and there appears to be nothing in either of the fourteen specifications of error that calls for its reversal. Decree affirmed, and appeal dismissed at the costs of appellant.