# Byers v. McAuley

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## Dissenting Opinion

    Shiras
United States Supreme Court
149 U.S. 608
Byers v. McAuley
Statement by Mr. Justice BREWER:
James McAuley, who died on the 9th day of January, 1871, by his will, dated November 26, 1870, made large bequests to his sisters, Margaret and Mary, and also devised to them a house and lot on Duquesne way, in the city of Pittsburgh. Margaret died intestate in 1871, a few months after her brother, and her interest passed to her sister Mary, who died January 6, 1886, seised of said real estate, and leaving also a large personal estate. As respects the latter, she died intestate, but she left an instrument in writing, signed by her, the body thereof being also in her handwriting, of which the following is a copy:
'By request of my dear brother, my house on Duquesne way is to be sold at my death, and the proceeds to be divided between the Home of the Friendless and the Home for Protestant Destitute Women. Mary McAuley.'
On January 12, 1886, this instrument was admitted to probate by the register of Allegheny county, Pa., as the will of Mary McAuley, and letters of administration cum testamento annexo upon her estate were issued to Alexander M. Byers.
Byers proceeded with the administration of the estate, and on January 29, 1887, he filed in the register's office an account, showing his receipts and expenditures, and what balance he had in his hands for distribution, amounting to the sum of $212,235.61.
The account of Byers, as administrator with the will annexed, was examined and allowed by the register, and was presented for approval to the orphans' court of Allegheny county, and was by that court, on March 7, 1887, approved and confirmed nisi, and, no exceptions thereto having been filed, me confirmation became absolute.
Thereupon in pursuance of statutory directions, this confirmed account was put upon the audit list of the orphans' court for distribution of the balance shown to be in the administrator's hands, and the court fixed March 29, 1887, as the day to hear the case.
On March 28, 1887, the day before the hearing thus fixed, a bill in equity was filed in the circuit court of the United States for the western district of Pennsylvania by Henry B. Shields, a resident and citizen of the state of Ohio, assignee of James McAuley, a citizen of the state of Kansas, and Henry B. Shields, in right of his wife, Melissa M. Shields, also a resident and citizen of Ohio, against the administrator, Byers, and other parites claiming to be interested in the estate, among them the two corporations named in the instrument above quoted. The bill set forth the death of Mary McAuley; that there were two classes of clai mnts to the estate, to wit, the first and second cousins of the decedent; that the so-called will was null and void; and that there was a large amount of personal estate in the hands of defendant Byers, administrator, etc. The prayer was that the will and the probate be declared void and of no effect; that the administrator be enjoined from disposing of the real estate, and from collecting the rents therefrom, and that some suitable person be appointed to take charge of it until partition; that a partition of it be had and made to and among the various parties in interest, and that the defendant Byers be ordered and directed to make a full, just, and true account of all assets in his hands; that an account be taken of the testator's debts and funeral expenses, and the surplus be distributed among the plaintiff and all other parties legally entitled thereto; and for general relief. To this bill the administrator, Byers, filed a plea, setting up the proceedings in the orphans' court. This plea was, after argument, overruled by the circuit court.
The cause was then put at issue by answer and replication. On May 20, 1888, an interlocutory decree was entered, directing that said A. M. Byers, administrator of Mary McAuley, deceased, should file an account of the personal estate before a master, who was then appointed, and the master was directed to take testimony as to the parties interested in the distribution of the balance in the hands of said administrator, and to report the testimony, with a schedule of distribution, to the court. The administrator stated before the master an account, which was identical with the account theretofore confirmed by the orphans' court. The master further took testimony as to who were the distributees, and reported the same to the court, with a schedule of distribution.
On January 5, 1889, a final decree was made by the circuit court, as follows:
And now, to wit, January 5, 1889, this cause came on to be heard on bill, answers, replication, testimony, and the report of the master with exceptions thereto, and was argued by counsel; whereupon, upon consideration thereof by the court, it is ordered, adjudged, and decreed that the proceeds of the sale of the real estate that was of Mary McAuley, deceased, situate on Duquesne way, in the city of Pittsburgh, after deducting expenses attending the same, shall be distributed equally between the Home for the Friendless and the Home for Aged Protestant Women.
'And it is further ordered, adjudged, and decreed that the exceptions to the master's report be overruled, and the said report confirmed, and that the personal estate of said decedent be distributed among the thirteen first cousins of said decedent, to the exclusion of her second cousins, in conformity with said master's report; and that, unless an appeal be duly entered from this decree within sixty days from this date, the administrator is ordered to transfer the stocks and pay out the cash of said decedent's personal estate in accordance with the schedule of distribution reported by the said master, adding the sum of nine dollars and sixty-one cents ($9.61) to the cash share of each of said thirteen distributees, to cover the duplicate credit of one hundred and twenty-five dollars ($125) for examiner's fees inadvertently allowed in said master's report.'
From this decree several appeals were taken to this court, two of which remain for consideration, to wit, the appeal of the administrator, and that of Dora McAuley and others, second cousins of the deceased, with their husbands.
D. T. Watson, for appellant Byers, administrator.
D. F. Patterson, for appellees Sarah Thompson and others.
M. P. Patterson, for appellee Pittsburgh & Allegheny Home for the Friendless.
Geo. C. Burgwin, for appellee Home for Aged Protestant Women.
S. Schoyer, Jr., Walter Lyon, and W. M. Watson, for appellants in No. 130.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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