Supreme Court of Pennsylvania, 1896

Estate of Spellisy

Estate of Spellisy
Supreme Court of Pennsylvania · Decided April 6, 1896 · Fell, Green, Mitchell, Sterrett, Williams
174 Pa. 628; 34 A. 316; 1896 Pa. LEXIS 938

Estate of Spellisy

Opinion of the Court

Opinion by

Mr. Justice Fell,

In the first account the administratrix blended the proceeds of the real and personal estate of the decedent; Upon exceptions being filed by the creditors she petitioned the court for leave to withdraw her account in order that she might separate the account of the real from that of the personal estate, and in order that she might account for certain items not included in the inventory and which she had found to be collectible. The court granted her permission to restate her account within twenty days. The account as restated was in proper form. The separate account of the real estate shows that the balance of the purchase money after the deduction of the expenses of the sale went to the payment of a judgment creditor, John Spellisy, and that the whole of the personal estate had been used in payment of preferred claims.

The account as filed might have been restated by the auditor. That the accountant was allowed to restate it in order to separate the items and to include others which would have been *631proper subjects of surcharge iu no manner affected the rights of the appellant. He had every fair chance under the second account that he had under the first. There is no testimony which shows or tends to show that the property was not all accounted for or that the payments were not properly made, or which calls into question in any way the correctness of the accounting. There is not a distinct finding by the auditor that Spellisy’s judgment, to the payment of which the fund was awarded, was first in point of lien. He reports however that the validity of the judgment was not attacked, and that there was nothing to establish the illegality of its payment, and that “ there has been neither testimony produced, nor has any legal reason been advanced, in order to show why this amount of $700 should be surcharged against the administratrix. ■ The sole argument of exceptants has been that the judgment was improperly paid, because Mrs. Spellisy assumes it to be wrong that one claim should be satisfied while another may remain unpaid.” The learned judge of the orphans’ court in confirming the report of the auditor says that the judgment was unquestionably a lien on the real estate of the decedent and was entitled to be paid out of the fund arising from the sale of the real estate. It would have been more regular if the auditor had reported a distinct finding upon this subject, but neither the validity of the judgment nor the priority of its lien was in controversy before him. No exception was taken in the orphans’ court to his failure to so report, and there is not now nor has there been throughout the whole proceeding from the beginning to the end even a denial that the judgment was valid, first in lien, and entitled to payment. When the end has been reached through the course of a regular and orderly procedure, and it is manifest that justice has been done to all parties concerned, there is no ground for a reversal for trifling irregularities not objected to at the time and not affecting the merits of the cause.

The assignments of error are overruled-and the order of the court is affirmed at the cost of the appellant.

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