Blanchard v. Commonwealth

The opinion of the Court was delivered by Gibson, C. J. The orphans’ court has undoubted jurisdiction of [311] advancements, and its decree would be conclusive in an action on tbe recognizance; but it is not bound to exercise it, nor would it be convenient in practice or conducive to justice to do so. Consistently with habits so migratory as are those of our people, it would be difficult, if not impossible, to bring all the parties before the court, or even to serve them with notice; and questions of fact requiring the intervention of a jury would so frequently arise as to render the determination of them on feigned issues, exceedingly troublesome. For these reasons, perhaps it is, that we have no trace of its exercise. In some parts of the state, it is true that it has been the practice to take a separate recognizance to each child; but as the costs were necessarily rendered oppressive by it where there were many distributees and several purchasers or acceptants of distinct parts of the estate, it has been generally, if not universally, abandoned. In Alexander v. Ramsey, 5 Serg. & Rawle 338, the recognizances were multiplied by it to the exorbitant number of four hundred and eighty. Where the sum due to each has been thus awarded, but without an adjustment of advancements, it might be a grave question whether it could be decreased in a suit on the recognizance, which has much of the solemnity of a judgment, especially as the parties had an opportunity of demanding that advancements should be brought into hotchpot before the balances were definitively struck. The acceptant would certainly not be entitled to the exclusive benefit of the deduction, if one were made; and it is not easy to see how the other children might benefit by it, as they could recover no more on their recognizances than the sum specified in the condition of each. We, however, intimate no opinion on that, as no such difficulty is presented here, the shares being secured in a gross sum by a general recognizance to the commonwealth as a trustee, with condition to pay the children their proportions of it, and the amount coming to each being consequently left, subject to questions of advancement for future adjudication by a jury. By deducting advancements under this general form of security, the shares of the others may be correspondently increased; a facility that gives it an advantage, in point of convenience and justice, over every other that has been employed. But the condition is to pay according to the valuation of the inquest, who have, in this instance, assumed a right to determine the amount of the shares; and hence an argument that the condition is to pay to each the amount of the sum specified in the inquisition. Whatever be the power of the court in that particular, it was not, and could not be delegated to the inquest, whose office was to appraise the thing and not the interests of the children in the purchase money. Their specification of the shares, therefore, goes for nothing; and the condition to pay according to the valuation is to be understood as predicated of the gross amount. If, then, the child in whose right suit is brought, has been advanced, there must be a correspondent deduction; and if it appear that she has had her full [312] share of the entire -estate, she will stand deprived of the character of a child entitled to distribution, and consequently of a title to sue for herself or another, on the recognizance. The evidence of advancement ought, therefore, to have been received; but the evidence of fraud in procuring a transfer of the claim, was irrelevant and inadmissible. Judgment reversed, and a venire de novo awarded.