In re Washburn's Estate

• Decision Date: 21 July 1898
• Docket Number: 468,467
• Citation: 40 A. 979,187 Pa. 162
• Parties: Estate of Calvin Washburn, deceased. Appeals of Eleanor Owens and Mary A. Crawford
• Court: Pennsylvania Supreme Court

40 A. 979

187 Pa. 162

Estate of Calvin Washburn, deceased. Appeals of Eleanor Owens and Mary A. Crawford

Nos. 467, 468

Supreme Court of Pennsylvania

July 21, 1898

Argued April 11, 1898

Appeals, Nos. 467 and 468, Jan. T., 1897, by Eleanor Owens and Mary A. Crawford, from decree of O.C. Luzerne Co., No 913, of 1875, overruling exceptions to account, and declaring liens of legacies discharged. Affirmed.

Petition of E. Merrifield, legal representative of the estate of William Merrifield, for review of the account of the said William Merrifield and Nicholas Washburn, executors of Calvin Washburn, deceased.

Exceptions to account of E. Merrifield, executor of William Merrifield of the administration of the estate of Calvin Washburn.

Separate petitions of Mary A. Crawford, formerly Mary A. Washburn, and Eleanor Owens, formerly Eleanor Washburn, widow and daughter of Calvin Washburn, deceased, to have annuities declared a charge on real estate. Before DARTE, P.J.

The facts appear by the opinion of the Supreme Court.

Errors assigned were decrees of the court, permitting the review, dismissing exceptions to the account, and refusing to charge real estate.

Thomas F. Wells, for appellants. -- It was seventeen years after the account had been confirmed that the application was made. The act of assembly authorizing a review limits it to five years.

The petition set forth no sufficient grounds: Priestley's App., 127 Pa. 420.

There is no sufficient ground for allowing the filing of a separate account, even if the application were in time: Weigand's App., 28 Pa. 571; Weldy's App., 102 Pa. 461; Stong's Est., 160 Pa. 13; Bohlen's Est., 75 Pa. 304.

The liens were not discharged: Wertz's App., 65 Pa. 306; Gallagher's App., 48 Pa. 122; McGlaughlin v. McGlaughlin, 24 Pa. 23; Horner v. Hasbrouck, 41 Pa. 181; Smith v. Seaton, 117 Pa. 382; Hiester v. Green, 48 Pa. 96; Rohn v. Odenwelder, 162 Pa. 352; Dewalt's App., 20 Pa. 239; Helfrich v. Weaver, 61 Pa. 390; McCredy's App., 47 Pa. 450; Dewart's App., 43 Pa. 326.

Wm. H. Jessup, with him Alfred Hand, and Wm. J. Hand, for appellee, Harriet C. Mott, the sheriff's vendee of the land sought to be charged. -- Granting that the legacies given to appellants by the fourth clause of Calvin Washburn's will were charges upon the real estate devised to Nicholas Washburn, the liens were discharged by the sheriff's sale of the land in 1877.

The legacies in question were not continuing or fixed liens against testator's real estate: Gallagher's App., 48 Pa. 122.

The liens of the legacies were discharged by the sheriff's sale; Barnet v. Washebaugh, 16 S. & R. 410; Woods v. White, 97 Pa. 222; Wood's App., 20 W.N.C. 250; Pryer v. Mark, 129 Pa. 529.

John F. Scragg, for appellee, E. Merrifield, executor. -- The orphans' court is a court of equity, with full power to review and correct its former adjudications: George's App., 12 Pa. 260; Johnson's App., 114 Pa. 132.

The filing of a joint account is not a continuing obligation which remains fixed without regard to subsequent circumstances: Young's App. 99 Pa. 74.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE FELL:

These appeals are by the same parties, and in the same estate, and may be considered together. The first appeal is from the order of the orphans' court setting aside the confirmation of the joint partial account of Nicholas Washburn and William Merrifield, executors of the will of Calvin Washburn, and permitting the executor of William Merrifield to file a separate account, and from the order dismissing the exceptions filed thereto. The proceeding was by petition and rule, but it was in substance a bill of review. The joint partial account was filed in October, 1876, and showed a balance of cash and uncollected assets in the possession of the executors. Before the confirmation of the account, one of the executors, William Merrifield, was stricken with paralysis, and he died in April, 1877. He had not taken an active part in the settlement of the estate, and had never had actual possession of any of the assets thereof. The surviving executor, from the time letters testamentary were granted until his death in 1887, had entire charge of the estate, and was reputed to be financially responsible. No steps were taken until August, 1894, to hold the estate of William Merrifield responsible for a devastavit by his co-executor. The power of the court to allow a review is beyond doubt: Young's Appeal, 99 Pa. 74; Johnson's Appeal, 114 Pa. 132; Wilson's Appeal, 115 Pa. 95. Under the testimony offered there was no error in dismissing the exceptions to the separate account which it permitted to be filed.

The questions raised by the second appeal are whether the legacies to the appellants were charges on the real estate devised by the testator to his son Nicholas Washburn, and, if so, whether they were discharged by the sheriff's sale of the land, after the death of the devisee, under a judgment which had been obtained against him. The appellants are the daughter and granddaughter of the testator. He directed his executors to invest $5,000 in mortgages on real estate, and pay the income to his daughter for life, or at her option to invest this amount in real estate and secure to her the income thereof. At her death the principal sum invested or the real estate bought was to go to his granddaughter, to whom he also gave a legacy of $1,000, payable immediately...