Clark v. Callaghan

The opinion of the Court was delivered by Gibson, C. J. In cases of legacy and distribution, the chancellor has jurisdiction, by the English law, concurrenily with the spiritual court; and the account is settled in the one court or the other, accotding to the recourse of the claimant. But where an administrator exhibits his account in the spiritual court, without suit or citation, and merely to save the penalty of his bond, it. is neither verified by his oath nor submitted to examination, except when a party in distribution voluntarily appears to contest it; and then it must be sworn to, and may be examined. A voluntary account., however, concludes none but litigants, for the reason that parties unheard are not. bound, if they were not cited, or did not contumaciously refuse to appear. Swinb. 468 ; 4 Burns Eccl. L. 426. Such is the English law ; and it will be perceived that it differs from our own, not so much in its principles as in its forms of administration. For want of a court with specific equitable powers, the jurisdiction of the chancellor is given to our courts of law; and a common law action may be maintained for a distributive share. But a more material difference is, that the account is settled before the register in all cases, subject to further examination and confirmation by the orphan’s court; and that whether the settlement be voluntary or on compulsion, the citation by the accountant, which issues, by the English practice, to the parlies interested to be present at the passing of the account, is superseded in our own by the register’s advertisement. On the principle of the English law, an account settled on notice, equivalent to that given by a citation, would be conclusive of the matters contained in it; yet it was not originally thought to be so here, and ' probably because it is always a harsh measure to affect parties with constructive notice who may have been ignorant of the whole matter. But surely one who had in fact contested the account, would, at all times, have been prevented from contesting it a second time, by that species of estoppel of which Heller v. Jones, 4 Binn. 61, furnishes an example. All supposable differences, however, have been merged in the decision of M’Fadden v. Geddis, 17 Serg. & Rawle 336, by which it was settled on principle, and with a view to establish a rule for the future, that a decree of the orphan’s court, confirming an administration account, is, in all cases, conclusive of the matters contained in it, when attempted to be drawn into controversy in a collateral action ; and as such, it was followed in M’Lanachan v. The Commonwealth, 1 Rawle 357. If this rule is to be broken in upon by exceptions, hard cases will not be wanting for pretexts, and we shall soon be in a state of as great uncertainty as to its extent., as we previously were as to the effect of the decree. What remains, then, is to apply it to the case before us. The ac [262] count was sent by the orphan’s court to auditors, before whom the main contest was, whether the accountants were chargeable with the note in question as a part of the assets. The auditors charged them wilh it., the report was confirmed, and distribution was decreed on the basis of it; subsequent to which, a sister of the payee, who ■claimed the note as a gift from him, brought suit on it in the name uf his administrators, of whom the drawer was one, and recovered judgment on it, the drawer having given notice to the present plaintiff’s intestate to come in and assert her right. Now, to say nothing of the incongruity, if not the illegality, of a proceeding in which the same person is both plaintiff and defendant, and which, but for the notice, would have given strong reason to suspect collusion, what'is there in these circumstances to distinguish the case from any other'? With ■the claim of the sister, the plaintiff’s intestate had no concern ; and ■she behaved discreetly in refusing to interpose. The argument is, ■that a recovery by a donee of the assets, after a definitive settlement, is in substance a recovery by a creditor, which entitles the administrator to contribution from the parties in succession where he has taken refunding bonds, or to retain while the estate is still in his hands. That a recovery of assets specifically in the hands of the administrator subsequent to the final settlement, would entitle him to relief, where the same title had not been adjudicated between him and the parties in distribution, I am not disposed to deny; but surely ■not in a collateral action. To bring order out of confusion by introducing regularity into the proceedings of the orphan’s court, it would be worth the while of the judges and the profession to study, in order-to follow, the practice of a kindred court. Granting the action for a legacy or distributive share to be in the place of a bill in equity, what would be the course of proceeding before a chancellor in the case indicated by the argument ? A decree may not be set aside or relieved against directly by an original bill, or collaterally b}^ another bill for the same cause, as that would make the decrees of the court seem capricious and contradictory; but the remedy is by a bill of review for error apparent on the face of the decree, or for new matter discovered since, such as a release or a receipt. 2 Madd. Ch. 537. In analogy to this, the remedy would be in the orphan’s court, and by petition on a ground laid to review the original decree so far as might be necessary to the relief sought. Yet, without the discovery of new evidence to impugn the decedent’s title, the adjudication of á fact contested at the settlement, would scarce be disturbed for the mere adverse recovery of a stranger, whose doings with the administrator would not bind the parties to the succession; and I am by no means satisfied that the defendants could have made out a case for relief in the proper court. But assuredly they cannot be relieved in a collateral action. The recovery of a debt, unknown to the administrator at the final settlement, is provided for by the act which authorizes him to require refunding bonds from the parties in distribution, to meet that contingency; and were he to part with [263] the estate without exacting them, it certainly would not admit of a question, whatever be his recourse by action for money paid by mistake, whether he could be relieved in the orphan’s court on the basis of his own negligence. These are cases, not of revision to correct an inadvertence, but of contingency, for which there is distinct legal provision. The one before us is of a different stamp; and it is sufficient to say that it was properly put to the jury. Judgment affirmed.