Clauser's Estate

The opinion of the Court was delivered by Rogers, J. An executor will not be permitted to settle an account in the Orphans’ Court, for the mere purpose of charging the estate with the debts due to himself by the testator, in his lifetime. Shenck’s Administration Account, (5 Watts 84.) In that ease, no assets had ever come to the hands of the executor, but in his account he charged himself with the amount of the inventory, and prayed a credit for it, as having gone into the hands of his co-executor. The argument was, that he was at liberty to pursue this course, because, never having had any assets in his hands, he could not retain the amount of his debt,, so that in that aspect, this case is less favourable to the right claimed by the administrator. For although his debts were not due at the time he made his settlement, yet there was nothing to prevent his bringing them into the account, and retaining an amount of the assets sufficient to satisfy them. When an administrator has fully settled his account, he is not entitled to exhibit another account, unless he is in possession of assets not already accounted for, or is out of pocket for disbursements in his office. 5 Watts 84. The accountant having failed to bring himself within either category, comes within the decision cited. The administrator settled his accounts, the last of which purported to be a final account, in which he acknowledges he has in his hands for distribution, $538.65. Although no formal decree of the court is made, yet, according to our practice, we must take it as if it was made. Why the accountant omitted to charge the estate with debts owing to him, does not distinctly appear; although it may have arisen from a mistaken 215 apprehension that they could not be charged in the account until they were due. But from whatever cause it arose, as he has slipped his opportunity, he cannot retrace his steps in the mode which he has adopted. And we come to this conclusion with less reluctance, because the party is not without remedy by petition for review, in the manner pointed out in the Act of the 13th of October 1840. The 4th section of the Act of the 29th of March 1832, has been relied on, which gives jurisdiction' to the Orphans’ Court, to make distribution of the assets or surplusage of the estates of decedents after settlement among creditors, or others interested. But this power cannot be exercised through the medium of an administration account, for the register has nothing to do with the estate after settlement of the account. It must be brought to the notice of the Orphans’ Court by petition, either by the heirs, or some other person interested in the estate. The same may be said as to the remedy provided in the 3d section. This seems to be an attempt to reach the real estate of the decedent, by subjecting it to sale, by the order of the court, for the balance due the administrator. But this object cannot be attained in this manner. The Orphans’ Court will not grant an order for the sale of real estate for the payment of the debts of the intestate, which have lost their lien by lapse of time. The 4th section of the Act of the 4th of April, 1797, provides, that no debts, &c. shall remain a lien longer than seven years after the decease of the debtor, &c., unless an action for the recovery thereof be commenced and duly prosecuted, &c. within the period of seven years; or a copy, or particular written statement of any bond, covenant, debt, or demand, when the same is not payable within that period, shall be filed in the office of the prothonotary, where the lands lie. As the intention is to give notice of the debt, there is nothing in reason, or in the Act, which exempts an executor from its obligations; for although he cannot sue himself, there is nothing to prevent his filing a copy or written statement of his claim. Unless we require this, it puts it in the power of an executor to do a great wrong to purchasers and heirs, by concealing his own claims. The directions of the Act are very clear and precise; and nothing short of what is there required, can extend the lien of the creditor beyond the prescribed period. This case, it is true, presents a case of individual hardship, but we must be careful to prevent such considerations from affecting our judgments. The administrator, no doubt, who was acting for his grandchildren, pursued the course which he supposed would best promote their interest, without a thought that he was jeoparding himself; and we would willingly relieve him from the situation in which he has placed himself from his mistaken kindness. At first we doubted, whether the parol and written agreements that the bonds which he held against the estate, should be paid as they became due, would preserve the liens between the 216 immediate parties to the contract. But with every disposition to relieve the accountant, we are unable to discover this intention expressed in the agreements, whatever might have been the understanding of the parties. The administrator of Sheradin may have a remedy, in part, by suit on the agreement, which creates a personal responsibility, at least, and which may be rendered an effectual security, out of the proceeds of the land, which is pledged for its payment.