Mount v. Slack

The Ordinary. The decision upon which the order appealed from was entered, was pronounced on the 15th of February, 1884, but the order was not signed until the 29th of May following. The appeal was taken on the 9th of July. The respondent insists that it was not taken within the time limited bylaw; that the three’months began to run from the time when the decision was announced, and not from the date of the order. It has been repeatedly held that the time within which an appeal is to be taken is to be computed, not from the time when the decision was announced, but from the time when the order or decree was signed and filed, 232 or entered in the minutes of the court. Hillyer v. Schenck, 2 McCart. 398; Young v. Young, 5 Stew. Eq. 275; Mount v. Van Ness, 7 Stew. Eq. 523. The appeal in this case was therefore taken in due time. The orphans court has no power in Pennsylvania to apportion the commissions, where there are conflicting claims by different executors as to the amount due each one, Davis’s Estate, 1 Phil. 360 ; see Wickersham’s Appeal, 64 Pa. St. 67; Stevenson’s Estate, Pars. Eq. 18; aliter, in Alabama, Carver v. Eallelt, 36 Ala. 733. An action at law will not lie by one executor against another, after an order of the orphans court has fixed the amount due to the plaintiff, Carver v. Hallett, 36 Ala. 733; Hope v. Jones, 34 Cal. 89; nor, before such order apportioning the commissions, White v. Bullock, 4 Abb. App. Dec. 578, reversing 30 Barb. 91. An action of debt to recover one-half the commissions was held to lie by one administrator against another, who had received them all, Bush v. Me-Comb, 3 Houst. 546 ; or, assumpsit, Bichardson v. Stansbury, 4 Harr. <fe J. 375 ; or, a bill in equity, Walton v. Erwin, 1 Lred. Eq. 136.—Rep. The order appealed from is one dismissing the petition of the appellant, as one of the two administrators of the estate of Ehoch Mount, deceased, for an order of the orphans court requiring his co-administrator, the respondent, to show cause yvby he should not pay to the appellant one-half of the commissions allowed to them upon the passing of their joint account as such administrators. The petition, it may be observed, did not pray for an order requiring the respondent to pay, but to show cause why he should not pay. It was treated, however, as an application for an order requiring him to pay half of the commissions to the appellant. The court granted the order to show cause, and 233 on. hearing it dismissed it and the petition on the ground of want of jurisdiction. The application was based on the one hundred and twelfth section of the orphans court act (Rev. p. 776), which provides that where any difference arises between executors, administrators, guardians or trustees in regard to the proportion of commissions between them, the orphans court shall determine the same, having' regard to their respective services. No difference arose on the passing of the account as to the proportion of commissions which each administrator should receive, but the commissions were allowed (so far as appears, without objection) in a gross sum to both. The application under consideration was an attempt by the appellant to compel his co-administrator to pay him his share of them. The petition alleged that the latter had possessed himself of the whole amount, and refused to pay the petitioner his share. The above-quoted section of the act confers no jurisdiction upon the orphans court to compel payment by one administrator to another of his share of the commissions allowed in gross to both. It is obvious that the section referred to gives the court no jurisdiction over such a suit. The differences to which it relates are only such as arise in regard to the proportion of the commissions to which each of - several executors, administrators, guardians or trustees may be entitled in respect of his services, and are to be adjusted by the adjudication of the court on the passing of the account. The proceeding under review was not in form, nor was it in effect, an application to open the account for fraud or mistake in regard to the commissions. Neither fraud nor mistake was alleged. Nor was it an application to review in any way on any ground the decision of the court as to the commissions. No complaint was made of its award in that respect. There is no error in the order appealed from. It will be affirmed, with costs.