Appeal of the Fidelity Insurance, Trust & Safe Deposit Co.

Mr. Justice Gordon delivered the opinion of the court February 7th, 1887. Some twenty-two • years ago Frank J. Glasz, deceased, and his brother Adam administered on his estate. In 1866 the account of the said administrator was filed, and referred by the Orphans’ Court for settlement and distribution to an Auditor. This Auditor, after complying with the legal requisites in the way of publication, etc., approved the account, and reported a balance of $882.92, which he awarded to the aforesaid Adam J. Glasz, as brother and next of kin of the deceased. But this Auditor neglected to file his report. Had he performed his duty as he ought to have done in proper time, we would not have had the present contention, for the time allowed by the Act of the 13th of October, 1840, for a bill of review has long since passed. As .the matter now stands, it seems that the Auditor waked up to the consciousness of his duty in the way of filing his report so - late as May 10th, 1884, so that technically the limitation prescribed by the Act does not apply, and, as a consequence, some nearly nineteen years after this account ought to have been confirmed and laid away with past things to be forever forgotten, and after death has set his irrevocable seal upon the lips of Adam J. Glasz, we have on the petition of one Peter Wagner, an alleged collateral heir of Frank J. Glasz, this whole matter ripped up, or, as it were, dug up from its grave, the account re-examined by the Orphans’ Court, Adam J. bastardized, and his estate burthened with a cash charge of $22,000, together with $14,000, in city certificates which had been previously distributed to Adam J. Glasz, as brother and next of kin of Frank J. Glasz. We need hardly say that this change of base is an unexpected and alarming- one to those interested in the estate now under consideration. What we have now to con 165 sider is whether this condition of things ought to have been permitted. We may say, in limine, that the case of the appellee is wholly without merit, and rests upon a mere technical right. That the two younger Glaszs were children of the same mother, is not k matter of question; nor is there any doubt as to their brotherly relations and affection the one for the other. Adam, if we are to look to the evidence, was faithful in the discharge of his duties, as well to his mother and brother as to the business in which they were mutually engaged, and the probabilities are that, but for Adam, Frank would have had no estate to leave to any one. But now, some nineteen years after this matter ought to have been, and would have been, but for the neglect of the court’s officer, put at rest, and after Adam’s death, some collateral heir has diseov*ered that he was a bastard, and therefore could not inherit from his own brother, and it is on this ground alone that the court below has seen fit to set aside its previous action, and surcharge the estate of the decedent to a ruinous amount, which in good conscience it ought never to have been called upon to pay. That this transaction is inequitable in the highest degree cannot be doubted by any impartial person. Is then the technical condition of things such as to compel us to adopt the conclusion of the court below? We think not. Time is an element of very material force in all courts which are governed by the principles of equity. This is illustrated by Gress’ Appeal, 14 Pa., 463, where a citation on the representatives of a deceased guardian to file an account of his guardianship, some eighteen years after his appointment, was refused. This refusal was not put on the .ground either of "presumption of payment or of settlement with the ward, but, as Mr. Justice Bell, who delivered the opinion of this court, said: “It results altogether from the unwarrantable-negligence of the party to call for an account, without offering any sufficient reason accounting for the delay.” Yet in this case the guardian had neglected a positive statutory duty, which makes the case stronger than that under discussion, in that Glasz neglected no duty, and the effect of the action of the court below has been to visit upon his estate the default of its own officer. So in the case of McKnight v. Taylor, 1 How., 161, it was held, that after a delay of nineteen years and three mouths, it was too late to ask a court of equity to interfere to compel the execution of a trust, and it was therein stated by Mr. Chief Justice Taney, citing Piatt v. Vattier, 9 Peters, 416, “ t.hat nothing can call a- court of chancery into activity but conscience, good faith, and reasonable diligence, and where these are wanting the court is passive and does nothing ; and therefore from the beginning of equity jurisdiction, 166 there was always a limitation of suit in that court.” But it is useless to multiply authorities upon a- doctrine that is so well established as to have become elementary, and we have only to say, that a case more proper for its aplication than the one in hand could scarcely be conceived. For nearly nineteen years the appellee slept on his rights, nor does he allege in his petition that he was not during all that time perfectly cognizant of every fact set forth in that petition. It is only after all these years, and after Glasz’s power to defend his estate has been effectually destroyed by death, that he comes into a court of equitable jurisdiction to ask its help to enable him to seize upon property to which he has no conscionable right, and from which he would have been completely shut out had it not been for the negligence of the Auditor. These circumstances give to the claim of the appellee a very suspicious appearance; too much so, indeed, to permit a chancellor to move in the execution of a claim so stale, and this the more so, as there has been no attempt to account for this unreasonable delay. The decree of the Orphans’ Court is now reversed and set aside at the costs of the appellee, and the original report of the Auditor is now confirmed. The appeal of the German Roman Catholic St. Vincent’s Orphans’ Asylum of Philadelphia and vicinity is quashed.