Stevenson's Adm'r v. Phillips Ex'r of Dehart

Opinion of Court by Randolph, J.

On the argument two questions were raised by the defendant in Certiorari. 1st. That the account is not final — and 2d. That a Certiorari does not lie in the Orphans’ Court on a mere matter of adjusting the amount or proportion of commissions.

1st. The account certainly does not upon its face express in so many words to be a final settlement, although from inspection it is manifest that it is such. Thus the whole amount of the inventory and of real estate sold is charged, and the estate is all disbursed, without praying allowance for any part as unsettled, except for a “ balance of $88.40 in accountant’s hands, to be distributed according to law.” The caption and the account itself is drawn according to the form in Griffith’s Treatise, p. 231-5, and I think that it is not usual to add the word final in the caption unless there has been a preceding settlement. So far as regards the present controversy the account is no doubt final, and that is sufficient to sustain the Certiorari on this point. State v. Hanford, 6 Halst. 73; Johnson v. Elite, 7 do. 316-17.

2d. As to the second point, there is no doubt that a Certiorari will not be sustained for the mere purpose of readjusting the amount or the proportion of commissions, that matter lying within the discretion of the Orphans’ Court Mathis’ Ex’r v. Mathis and al., 3 Harr. 63 . But although this court will not look into that subject, and the readjustment may have been called for in strict justice to the parties in this case, yet in order *72 to do that, the Orphans’ Court had no right to open a final settlement, especially where an account is stated, as this is, specifying in the body of the account the respective amounts to be allowed to each, and decreeing that “ the same be allowed in all things as stated by the surrogate.” Had the account contained a mere general allowance of commissions, and a subsequent independent order been made, apportioning them, there Avould have been no necessity for opening the account, nor could the court for that cause have opened the account; but in this case, as the account was stated, the alteration could not have been made without opening the account, this being by statute Rev. L. 787 “ conclusive upon all parties,” except for assets, or money coming to the hands of the accountant afterwards, or where a “ party applying for a re-settlement shall prove some fraud or mistake therein.” Here a third person interested in the matter gives notice of fraud and mistake, and the defendant consenting, the court orders the account to be opened without proof, and then after hearing evidence on the subject of commissions only, order the commissions to be reapportioned, and the account thus altered to be finally passed. The Certiorari is brought to set aside the order opening the account, and for that purpose I think it is well brought, and must be sustained. 7 Halst. 316; 4 Harr. 83 . The order was not correctly obtained; there was no proof as the statute requires, and the consent of the party interested cannot supply the place of evidence — nor was there such proof after the account was opened of “ fraud or mistake” as would authorize the opening of the account for re-settlement. The mistake must be one of fact or law, not a mere error in the judgment of the court on a point resting in their discretion. Nor was it proper thus to procure the account to be opened for the readjustment of commissions in the name of a third person, who it seems had no interest whatever in the question.

The order therefore opening the account was illegal and void and must be set aside, and of course the whole.subsequent proceedings go with it, leaving the account as it was originally allowed by the Orphan’s Court.

The mode of entering the order of the Orphan’s Court by *73 mutilating the original account adopted in this case is very improper. (a)

Note (a). — Vide Hyer’s Adm’x v. Morehouse &c. Spencer’s Rep. p. 125 accord.