Appeals of Fletcher

Per Curiam: The only question we need consider is the disposition of the fund of §187,500, remaining in- the hands of Edwin H. Fitler & Co. The other questions under the will were disposed of by the adjudication of the account of the executors. No exceptions were filed to that adjudication and it was confirmed absolutely. More than a year thereafter the appellant came in by petition and asked to have that adjudication reviewed. It was not for a bill of review under the act of 1840, and had it been, it must have been disallowed, as it did not come within the terms of that act. On the contrary, it was for the mere purpose of filing exceptions to the adjudication. This was ex gratia and rested in the sound discretion of the court below. The learned judge has given excellent reasons for refusing the request of the appellant. She not only knew of the adjudication, but her counsel was sent for by the court and declined to appear, acting under instructions from appellant. She cannot play fast and loose in this way, and trifle with the court. Having refused to appear at the adjudication, the door is now closed against her: LeMoyne’s App., 104 Pa. 321. The scheme of the testator’s will is very apparent. * He had given his married daughter, Mary C. Fletcher, the appellant, the sum of §10,000 in his lifetime. He therefore provides that his other four children shall have a like sum of §10,000 each upon arriving at full age. He then gives a sum of §100,000 in trust for his five children, amounting to §20,000 each. This was all he intended to give his children. The balance, which comprised the bulk of his estate, he gives to his wife. But as the married daughter had received her education and the benefits which a residence in an elegant home furnishes, prior to her marriage, and as his other children were all young, and to be educated, he gave the benefit of the whole fund in the hands of E. H. Fitler & Co., for five years, to his wife for the purpose of providing a home, maintenance and education for the minors. But the firm declined to keep the money at the high rate of interest mentioned in the will, paid a portion of it off, and retained the residue at 4^ per cent. Under these circumstances we are of opinion that the provisions of the will 358 ■in regard to tbe $40,000 and the $100,000 took effect. The appellant has no cause to complain of this. She was not entitled to anything but the interest on the one fifth of the $100,000 referred to in the ninth paragraph. The testator never intended her to have any portion of the interest on the fund in the hands of E. H. Fitler & Co. If that were to be divided at all it would have to be divided equally between the widow and all the children, thus giving the former only one sixth with which to keep up the large and costly establishment which he had provided as a home for his wife and minor children. Such a construction would destroy the whole scheme ’of the will and render it inoperative so far as his widow, in whom he evidently had great confidence, and who appears to have been the first object of his bounty, is concerned.' Much more might be said but the whole matter has been so well and intelligently discussed by the learned judge below, that further comment is unnecessary. The decrees are affirmed and the appeals dismissed at the costs of the appellant.