Estate of Lefevre

Opinion by Mr. Justice Mitchell, When this case was here before, 171 Pa. 404, the only question presented was the right of Witmer and Mrs. Shertz to |5,000 under the twenty-second clause of the testator’s will. It was held that the will gave it to them, and it appearing that the executors had received the amount from Franklin Lefevre and applied it to other purposes, the order was made that the account should be restated and the executors surcharged to that extent. When the record went back to the orphans’ court an auditor was appointed, and reported that “ the relief sought by Witmer and Mrs. Shertz, and to which the Supreme Court decides them entitled, would be effected by simply in this proceeding surcharging the executors with the amount of money in controversy.” That was precisely what this Court intended. The questions whether the executors were entitled to be recouped the amount of the surcharge, and, if so, from what source, were [228] neither presented nor considered. The learned auditor, however, calling attention to the fact that the executors’ account had been finally confirmed and was unappealed from, inferred that the intention of this Court was to subordinate “ mere questions of procedure to the larger effort of carrying out the real purpose and intention of the testator.” He therefore proceeded in a laudable endeavor to settle the whole matter in accordance with equity. But this proceeding was founded on a mistake. There was no such intention on the part of this Court. The court was not informed of the final confirmation of the account, and the claim of Witmer and Mrs. Shertz being considered good the order to surcharge was made as if in the ordinary course. Had the court been made aware of the actual status of the account no such order would have been made without at least consideration of the other rights involved. The course followed by the learned auditor brings up for the first time the rights of appellant, and suggests various questions affecting her interests, on which she has not yet been heard. The testator directed that if the general fund was not sufficient for the payment of his debts, expenses of administration and certain gravestones, then the necessary money should be raised by mortgage on the farm devised to appellant. The account of the executor purporting to cover the full administration of the estate was filed, showing a balance due the accountants, and a mortgage was accordingly made on appellant’s farm for the proper amount. The account being confirmed finally, and the mortgage executed, and no exception or appeal taken to either, the estate, as the auditor’s last report correctly states, “ appeared to be closed.” This Court has not yet intentionally ordered it reopened, and whether it can do so depends on a number of questions not yet considered. Were Witmer and Mrs. Shertz barred by the confirmation of the account from further claim against the executors ? If not, could the executors, after such confirmation and the execution of the mortgage on appellant’s farm, recoup themselves for a wrongful use of the 15,000 due Witmer and Mrs. Shertz by another mortgage on appellant’s farm? And if so can it be done except by a direct proceeding against her for that purpose in the orphans’ court, under the notice to her directed by the will? These and perhaps other similar questions affect appellant’s rights and [229] have not yet been considered. Moreover, it now appears that the construction of testator’s will, adopted in Witmer’s Appeal, may also affect appellant’s rights, and she has not been heard upon it. We are obliged therefore in the interests of justice to grant the petition to open our previous decision reported in 171 Pa. 404, and order a reargument of the whole matter, including the questions above suggested and any others that may affect any of the parties interested in the estate. Reargument ordered accordingly.