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Weitting v. Nissley, 6 Pa. 143 (1847), was decided under the proviso of the Act.

The court said: “In the present case the account was confirmed on the 12th of February, 1839, and by the decree of the Orphans' Court made, the account must be regarded as the final account, on the authority of Bowers's Appeal, 2 Barr. 432, and not having been appealed from within three years, nor a review asked for within five years, it is final and conclusive; and should there be errors in the account, as is alleged, they cannot be corrected either in the present form of proceeding, or by a petition for a review.

"Whatever may have been the practice in relation to opening and correcting such accounts, and the time during which it would be allowed, we regard the question now settled by the Act of October 13, 1840.

"By the Act of March 29, 1832 (Purd. 885), the Orphans' Court is declared to be a court of record, with all the qualities and incidents of courts of record at common law . . . and by the Act of October 13, 1840, relating to Orphans' Courts, a review may be granted in a proper case made out within five years after the final settlement of account. . . . These acts, whilst they give to the vigilant every means of redress necessary for their protection, fix a period when all litigation is at an end."

In this case there had been a final accounting and payment by the administrator and releases in full delivered to him by appellant.

In White's Estate, 49 Leg. Int. 286 (1892), the court said: "The Act of Assembly is explicit that a review shall not be granted after a fund is distributed."

In George's Appeal, 12 Pa. 260 (1849), the court said: "The Orphans' Court has from the beginning exercised the power of reviewing and modifying its proceedings and decrees, as an authority necessarily inherent and essential to the right discharge of its duties. On this point no statutory direction was given till the Act of October, 1840, which, however, is confined to reviews of alleged errors in the SETTLED ACCOUNTS of executors, administrators and guardians. This limits the period

within which a review may be had in such cases to five years, but it leaves untouched the pre-existing practice in all other instances. Being thus unrestrained by the written law, I see no objection to the liberal exercise of the right to rehear and redress for the correction of manifest mistake involving injury, tempered, however, by the application of a sound discretion, secking to protect the rights of third persons, and which, in most cases, would dictate a refusal to interfere when the relative position of the original parties was materially changed, or the interests of third persons might be put to hazard. In estimating such a contingency, the time which had elapsed since the decree complained, would, of course, enter largely into the consideration of the court; and where this was much extended, might of itself afford a sufficient objection to bar the prayer for relief. It is said that, in England, in the time of Lord Guildford, there was no limitation for a bill of review: Fetton v. Mocclesfield, 1 Veru. 287; though in Goddard v. Goddard, Ch. Rep. 139, it was not permitted sixteen years after a decree, and it now seems to be the rule not to reverse on review after twenty years, except for very apparent error." ... "Should it become necessary with us to fix the time within which a review may be granted, the period will probably be much abridged by reference to our Acts of 1791, prohibiting writs of error after seven years, or, it may be, to the Act of 1840, just mentioned.”

In Riddle's Estate, 19 Pa. 433 (1852), Lewis, J., said:

"The Act of October 13, 1840, which fixes a limitation to petitions of review, directs the court to 'give such relief as justice and equity may require.' This may be understood as adopting the principles of equity which had heretofore governed Courts of Chancery in applications of this kind. It was certainly not the intention of the Legislature to keep litigation on foot for a longer period than necessary for the purposes of justice; or to nullify the solemn decisions of the courts at the mere will and pleasure of any party who chose to demand a rehearing, within five years, upon the same questions of fact which had been fully heard and decided on the first trial. To allow this to a party who cannot allege any error in law

on the face of the decree, or that he has discovered any new evidence, or that any new matter has arisen, would be contrary to the maxim that no one shall be twice vexed for the same cause,' and would not be administering 'justice' or 'equity.""

This case decides that a review could only be had as a matter of right in two cases: (1) For error of law appearing in the body of the decree; (2) For new matter which has arisen subsequent to the decree.

In Kinter's Appeal, 62 Pa. 322 (1869), Sharswood, J., said : "Nor in our opinion does the proviso of the Act of October 13, 1840, § 1, Pamph. L. 1, apply. The object of that Act seems to have been to make a bill of review in the Orphans' Court a matter of right, and at the same time prescribed a limitation of time to the exercise of the power. It was probably passed in consequence of the decision of this court in Briggs's Appeal, 5 Watts, 91, where, in a case like that before us, it was held that the Orphans' Court, in the exercise of its discretion, had power to order a review of a guardian's account, on the ground of money having been received by him and not accounted for, the omission having been newly discovered. "At the same time," said Mr. Justice Sergeant," it is requisite that this discretion be exercised with great caution, and only within a reasonable time; otherwise accounts never would be at rest." We must construe the Act of 1840 in the light of the old law, the mischief and the remedy. It never could have been the design of the Legislature to provide that where an accountant had failed to charge himself with money for which he was liable to account, that the payment of the balance should preclude a re-examination. We must give the law a reasonable interpretation-one in accordance with its spirit, and not its letter. The body of the Act expressly declares that the court shall "give such relief as justice and equity may require." In a great majority of cases this could not be done if the payment of the balance was a bar to all inquiry. Such a rule would be a cover to the grossest frauds purposely concealed. It was meant as a shield to the honest accountant, not as a weapon in the hands of the dishonest to perpetrate

iniquity. Its evident purpose was that the decree should never be disturbed so as to do injustice to the accountant. If under it he had paid over money he ought to be protected in that payment, even though it should subsequently appear to have been wrongful. Whenever, therefore, the object of the review is to surcharge the accountant with money received by him, not accounted for, and, therefore, not at all included in the decree, and not to disturb an appropriation already decrced and consummated by payment, the proviso of the Act of 1840, is not in the way of the proceeding."

This case decides that the proviso of the Act of 1840 applies to accounts confirmed by decree and consummated by payment, and not to an attempt to surcharge an accountant with. money received by him and not accounted for, and therefore not included in the decree of the court. Justice Sharswood's comments upon the object of the Act of 1840, beyond the decision as to the meaning of the proviso as above, were not in any manner necessary to the decision of the case, and must, therefore, be regarded as mere dicta.

In Bucknor's Estate, 7 W. N. C. 471 (1879), the court said: "It must be conceded that the petition could not be supported under the Act of October 13, 1840. But the power of the Orphans' Court to correct or amend its decrees when injustice will result by suffering them to stand, does not depend entirely upon this Act; and where no rights have changed in conse-quence of the decree, this power of correction or amendment will be liberally exercised, notwithstanding the fact that error does not appear on the face of the record, or that new matter is not averred or shown."

In Gillen's. Appeal, 8 W. N. C. 499 (1880), the court said: "Power to grant a bill of review has always been a well-established branch of the authority of a Court of Chancery, and has been exercised by the Orphans' Court: Briggs's Appeal, 5 Watts. 91.

The Act of October 13, 1840, is an enlarging, not a restraining statute.

Excepting under certain circumstances, the court shall grant a bill of review: George's Appeal, 2 Jones, 262; Bishop's

Estate, 10 B. 471; Pennypacker's Appeal, 1 Leg. Gaz. R. 484. On appeal, the Supreme Court, in the course of their opinion, said: "Undoubtedly, prior to the Act of October 13, 1840, the Orphans' Court might entertain a petition of review in cases in which Chancery Courts were in the practice of so doing. The only effect of that Act was to make it peremptory on the court to grant the review in the cases within the purview, with the proviso that it should not apply to any case where the balance shall have been actually paid by the executor or administrator."

In Littleton's Appeal, 93 Pa. 181, the court said: "In New York it is held that a bill of review cannot be brought after the time allowed for an appeal: Boyd v. Vanderkemp, 1 Barb. Ch. R. 273. Perhaps in this State it would be wise to follow the rules established by the Legislature as to reviews of final decrees confirming the original or supplementary account of any executor, administrator or guardian, by the Act of October 13, 1840, § 1, Pamph. L. 1841, pl. 1, which is five years. This, however, would be only by analogy, for it is clear that the Act of 1840 is not directly applicable. Yet in George's Appeal, 2 Jones, 262, Mr. Justice Bell says, 'should it become necessary with us to fix the time within which a review may be granted, the period will probably be much abridged by reference to our Act of 1791, prohibiting writs of error after seven years' (now reduced to two years by Act of April 1, 1874, Pamph. L. 50), or it may be the Act of 1840 just mentioned."

In Jones's Appeal, 99 Pa. 129 (1881), the court said: "The Act of October 13, 1840, not only gives the right of review to a party in interest upon proper showing, but fixes a limitation to petitions of review. . . . Whether the review is demanded for error in law apparent in the decree, or for new matter which has arisen after the decree, or for new proof that has come to light since the decree, the statutory limit applies."

In Milne's Appeal, 11 W. N. C. 332 (1882), the court said: "We have no doubt about the power of the Orphans' Court to revise and correct its former adjudications, if in those adjudications it discovered a palpable mistake, produced either

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