#### Bierly’s Estate.

1. On exceptions to an administration account before an auditor in the Orphans’ Court, the husband of an exceptant testified to “some extent without objection, he was then objected to as incompetent. *Held,*that his testimony after the objection, should not have been received.

2. The exception was to charge the accountants with notes alleged to be due by them to the decedent. *Held,*that declarations of the decedent in the absence of the accountants were inadmissible.

3. An interested witness called to testify as to a fact since the death of a decedent, cannot be cross-examined as to matters occurring before.

4. In an appeal from a final decree in the Orphans’ Court, the Supreme Court may examine the whole proceedings in the case.

5. Exception to the hearing of an incompetent witness before an auditor is not sufficient to reverse by the Supreme Court, unless it be shown that his testimony led the auditor into some specifics error.

6. A father holding notes against a son gave them to him to keep; upon the father’s death some years afterwards, the possession of the notes by the son was not evidence of payment; his possession was the possession of the father.

7. Executors filed a joint account; upon exceptions it was proper to charge them jointly-with their omitted notes, of which ten-elevenths were due by ope of them.

8. To escape liability the objecting executor should have filed a separate account, or insisted upon his co-executor accounting for their notes in their joint account.

9. Breneman’s Estate, 15 P. F. Smith, 298; Finney’s Appeal, 1 Wright, 323; Gyger’s Appeal, 24 P. F. Smith, 42; I-Iallowell’s Appeal, 8 Harris, 215; McBride’s Appeal, 22 P. F. Smith, *480;*Taylor *v.*Kelly, 30 P. F. Smith, 95, followed.

*420March 30th, 1876.

Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, and Woodward, JJ.

Appeal from the Orphans’ Court of *Clinton*County, of January Term, 1875, No. 154: by Peter S. Bierly and Samuel Bierly, executors, etc., of John Bierly, deceased, in the matter of the appellants’ accouut.

The testator died in August, 1870, aged about ninety years. By his will, dated June 9th, 1862, and proved September 7th, 1870, he gave to his son Samuel, one of the appellants, a farm ; he directed his executors to sell the remainder of his real estate, and authorized them to make a deed to Peter S. Bierly, the other appellant, for a piece of land sold to him by the testator on the id of June, 1862, upon Peter paying the balance still due for the land. lie directed the proceeds of his real estate and all the money and efiects which he might have at his death to be divided into seven and a half shares; he gave one share to each of his children, Elizabeth Derby, John M. Bierly, Catharine Spangler, Michael Bierly, Peter S. Bierly, Mary, wife of Emanuel Grimes, and Henry Bierly, and the half share to Samuel Bierly. He appointed Peter S. Bierly and Samuel Bierly the executors of his will; letters testamentary were issued to them.

On the 11th of September, 1872, the executors filed a joint account. The other legatees filed exceptions to the account; one of which was that the accountants had omitted to charge themselves with a note for $138 from Samuel Bierly to the testator, dated June 21st, 1866, and payable in one year; also with seven notes, dated April 1st, 1864, for $200 each, from Peter S. Bierly to the testator; the first payable April 1st, 1867, and the others each on the 1st of April of the succeeding years.

The exceptions were referred to E. P. McCormick, Esq., as auditor.

Before the auditor the exceptants called Emanuel M. Grimes, the husband of one of the legatees. He testified that he had seen the notes in question delivered by the testator to Peter; witness took a memorandum of the notes at the request of both; the testator said he was not fit to take •charge of his papers, and Peter should take them for safe keeping; this was June 21st, 1(866. Witness had been sent for to see about a sale of some land by the testator to a Mr. Kramer for much less than it was worth ; Peter asked him about it; he said he was so short of memory that he was not fit to do business any more, and told Peter to try to get the land back; that Peter should take the papers for safe keeping, and witness should get a book and note down all *421the papers. Witness got the book, and they, including the testator and Peter, went to Samuel’s house ; the testator took some papers from a chest; he handed them to Peter, who handed them to witness to note down in the book; having done so he handed the papers back to Peter. Peter said there was a note against Samuel missing; the testator said the amount was $138. Samuel admitted that that was the amount, and executed a note dated that day, and payable in one year for that amount; Peter took it into his possession, and witness entered it in his book; afterwards Peter came to witness and told .him he paid $50 to Kramer to get the land back; witness entered that sum on the note of Peter which first fell due. Before the parties left the testator on the 21st of June, it was arranged that when Peter paid anything witness should note it in the book.

The accountants here objected to the competency of the witness on the ground that he was the husband of one of the parties in interest, the objection to relate to the whole of his testimony. The auditor allowed the witness to proceed.

He said there were no other payments reported to him by Peter but Kramer’s.

0n cross-examination, he said that the testator lived with Samuel when the memorandum was made in the book, and continued to i’eside with him till his death.

The exceptants called Michael L. Hockey, and asked him to state what the testator said to him about his business affairs.

- This was objected to by the accountants as not having taken place in the presence of either of them. The auditor permitted the witness to testify.

He said that he was sent for on the 2d of December, 1868, by the testator to come to see him at the house of Jacob Spangler; wanted witness and Esquire Haines, who was present, to take a power of attorney from him to them to look after his affairs; they declined, but upon his importuning them they consented; he told them to see that Peter had his notes and all his papers, and they should go to Grimes and get his list; they went to Grimes and got the book. They went to Peter’s, and told him that his father had sent them for some papers; they read the power of attorney to him; Peter got angry ; drew an axe towards Haines; said he had none of the old man’s papers; being told that they had a list of them, he then said he had those papers aud notes, but was not going to give them up; the witness did not describe the papers ; Peter did not say what papers he had. The testator made a will that day, which went into his own possession. ■ Under objection, witness testified that the testator had said he could not pay them for their ser*422vices ; he had no money; Peter had neither paid him any money nor rent.

*Jeremiah*Haines, under like objections, testified substantially as the preceding witness. He testified also that the testator said Peter’s notes had been given for a tract of land purchased from him.

*J. B. Rowe*testified that Peter called on him in December, ■ 1868, to draw a revocation of the power of attorney from the testator to Rockey and Haines; he said they wanted to get hold of some notes and papers which the testator had given him to keep for him, and he (Peter) was going to keep them. Under objection, witness stated that after the testator’s death, Samuel told him that his father had given Peter his papers and notes to take care of, and amongst them were notes which Peter was to pay; Samuel said this did not seem to him to be right; the notes were for property Peter had bought from his father.

The exceptants called Peter, who said that he did not know where the will that was made at Spangler’s was. The accountants then proposed to examine Peter generally as to the exceptions.

This was objected to by the exceptants, Peter being incompetent to prove matter’s antecedent to the testator’s death. The auditor allowed the examination.

‘Witness testified that the notes had been given him by his father; he afterwards demanded the notes from witness and he delivered them all the papers he had received. His notes, given to his father, were then in his possession; he paid his father, who gave them to him as he paid them.

A paper containing entries of payments by witness to the testator was handed to him to refresh his memory. The ex-ceptants objected to the witness using it for that purpose, because it was not shown that the entries were made at the time, nor that it was the original, and signed by any one, nor shown to have been made in the presence of the testator or with his consent.

Witness said that it was in his handwriting, and that the dates and amounts were correct; he wrote it since the exceptions were filed.

The auditor would not allow the witness to refresh his memory by the paper.

The accountants called Mary A. Bierly, the wife of Samuel. The exceptants objected to her competency, and the auditor on that ground refused to permit her to testify.

*Samuel*Bierly, called by accountants, was admitted to testify as to matters since the death of the testator, but not as to matters before. He said that none of the notes spoken of *423by Grimes ever came into his hands as executor; so far as he knew no such notes were found amongst the testator’s papers at his death; he had no knowledge of any such notes remaining unpaid.

*Anne E.*Bierly, a daughter of Peter, testified that she saw Peter pay the testator money three or four times ; at one time the testator gave Peter a note. Peter, at that time, paid $200.; once he paid $190; and ouce about $160.

*'Harry G.*Bierly, a son of Samuel, testified that in April, 1870, Samuel asked the testator for money; he said he had none ; Samuel said perhaps he could get some from Peter ; the testator said Peter did not owe him any. He had seen Peter pay the testator money once or twice ; he did not know how much either time ; a pretty large pile of bills.

*Mary A.*Bierly, wife of Samuel, under objection to her testimony, testified that she saw Peter give the testator some money; heard him tell Samuel that Peter did not owe him any money. She held a note against the testator, which was paid by Peter; it was over $100.

*Mary A.*Bierly, the 'wife.of Peter, under objection, testified that Peter paid the testator and received a note from him ; testator cut this note off from some others and put the remainder into his pocket; testator gave Dr. IIulderbush a note, and told Peter to pay it; Peter paid the note and took a receipt from the doctor. She testified as to other small payments and purchases by Peter for the testator; that after the trouble about the Kramer purchase was settled, testator said he must have his papers; he got thé box; it was not at Peter’s any more.

There was a large amount of testimony taken on both sides. The foregoing extracts will sufficiently illustrate the opinion of the Supreme Court.

The auditor, after' recapitulating the evidence to sustain the exceptions, proceeded: . . . .

“ The accountants, by numerous witnesses, whose testimony is returned with this report, attempted to show, in the first place, that the notes and papers of John Bierly, Sr., ■were returned to him by Peter S. Bierly during the lifetime of said. John Bierly, Sr., and that the notes of Peter S. Bierly were fully paid by Peter to his father during’his lifetime. But from all the evidence admitted on the part of exceptants and accountants, and the circumstances surrounding the case under the evidence, your auditor is of opinion that said notes were neither returned nor paid to John Bierly, Sr., during his lifetime, and still remain unpaid, and therefore he sustains this exception, and charges the accountants with the amount of said notes, with interest from maturity, de*424ductiDg the credit of fifty dollars entered by Emanuel ' Grimes in the memorandum-book above referred to.”

* * * *

The shm thus charged was $1859.16.

The accountants filed the following exceptions to the report:

1. Sustaining the first exception to the executors’ account.

2. Finding of facts is against the weight'of the evidence produced and taken in the cause.

3. Charging of notes recited in the exceptions jointly is contrary to law.

4. Refusing to allow Peter S. Bierly to use the memorandum referred to in'his testimony to refresh his memory.

5. Admitting the declarations of John Bierly, Sr., in the absence of accountants.

6. Admitting the testimony of Emanuel M. Grimes, the husband of one of the exceptants.

The Court, Mayer, P. J., in passing on the exceptions, overruled the sixth on the authority of Dellinger’s Appeal, 21 P, F. Smith, 429, and further said:“ ... As to the fifth exception. The declarations of John Bierly, Sr., to the admission of which this exception was taken, were made to M. D. Rockey, and appear in his testimony returned by the auditor. They referred to the possession of the notes of Peter S. Bierly, one of the accountants, accompanied with a request that Rockey should take charge of said notes and of his business affairs, and for the purpose of enabling him to do so, gave him a letter of attorney. Whilst the auditor may have been in error in admitting the declarations of John Bierly, Sr., at the time they were proven, yet it appears in a subsequent part of the testimony of M. D. Rockey that the substance of. these declarations was afterwards communicated to Peter S. Bierly, who, after some altercations in regard to the matter, confirmed them, and admitted himself to be in possession of his'father’s notes and papers, as declared by the old man to Rockey. But irrespective of .the fact that these declarations were communicated to Peter, there is abundant evidence, independent of the declarations of the old man, to prove the facts stated by Mm in his declarations to Rockey. This exception is overruled.

“ As to the fourth, exception. ‘We were at first inclined to the opinion that the auditor had committed an error in not permitting the witness to refresh his memory from the memorandum, but a careful examination of the evidence and the authorities have brought us to a different conclusion. In the examination of the witness before the auditor he stated that he could not state exactly when he wrote the *425..paper. ‘It was since the exceptions were filed to his account. I made the entries on this paper all at one time from other memorandums.’ This evidence shows that this paper was not au original memorandum, but was made up by extracts from other memorandums, and could not be used for the purpose desired by the witness, as it was not the ,best evidence for that purpose. He should have produced the memorandums from which this one was made up..... This exception is overruled.”

As to the remaining exceptions he said: “ I have very carefully considered the evidence on the subject of the exceptions now under consideration, and cannot say that we are so convinced that the auditor has committed a clear error upon the facts as to justify us in disregarding the rule laid down by the Supreme Court by setting aside his finding. The witnesses were before the auditor, and he could better judge of their credibility, of the weight tó be given to their evidence, and arrive at a more just conclusion from the whole evidence. Though we could show further reasons, we will not disturb the finding of the auditor upon the facts.

“ But it is contended that the auditor erred in charging the accountants jointly with the notes described in the first exception. This might have been an error, if there had been no evidence before the auditor that Samuel Bierly, the executor, had knowledge of the existence of these notes, but the testimony of J. B. Rowe shows that after the death of old Mr. Bierly, Samuel knew that Peter S. Bierly had in his possession some papers and notes of the old man to take care of, and notes of Peter which he was to pay, and which were given for property purchased by Peter from the old man. It is true that 'Samuel Bierly states in his testimony that he has no recollection of making such statements to Rowe, and endeavors to explain what was said; but if the auditor gave credence to this evidence of Rowe, who was a disinterested witness, he was justified in holding Samuel Bierly jointly accountable with Peter for the amount of said notes. Having knowledge of the existence of these notes, and that they were in the possession of Peter Bierly, his co-executor, and according to his own declarations as made to Rowe, that Peter was to pay them, in order to escape a joint liability he should have filed a separate account, or insisted on his co-executor accounting for said notes in their joint account. Having failed to do either we hold that the finding of the auditor, under the evidence, was correct, and there was no error in jointly charging the-accountants. Besides, the evidence shows there was also a. note of Samuel, which was not accounted for, and with which the auditor has charged the accountants, leading us to infer *426that it may have been mutually understood that neither Samuel nor Peter was to render any account to the estate of their notes or indebtedness.

“ We, therefore, overrule the exceptions, confirm the report of the auditor, and decree that the balance found due from the accountants to the estate by the finding and report of the auditor, be paid over to the parties legally entitled thereto, and that the costs of the audit be paid by accountants.”

The accountants appealed to the Supreme Court. They there assigned for error, the oyerruling their exceptions and confirming the report of the auditor.

*G. S.*McGormick, for appellants.

As to the admission of Grimes as a witness, he referred to and discussed the act of April 15th, 1869, Pamph. L., 601, Br. Purd., 624, pl. 15, p. He distinguished Dellinger’s Appeal, 21 P. F. Smith, 428. As to the declarations of the testator he cited Romig *v.*Romig, 2 Rawle, 241; Scull *v.*Wallace, 15 S. & R., 231. As to charging the executors jointly, he cited Hall *v.*Boyd, 6 Barr, 270; Irwin’s. Appeal, 11 Casey, 296 ; Boyd *v.*Boyd, 1 Watts, 368.

*8. B. Peale,*for appellees, as to Grimes’s competency,

cited Yeager *v.*Weaver, 14 P. F. Smith, 425; Dellinger’s Appeal, *supra;*Karns *v.*Tanner, 16 P. F. Smith, 307.

Mr. Justice Paxson

delivered the opinion of the Supreme Court, May 8th, 1878.

The witness, Emanuel M.- Grimes, was perhaps competent under the authority of Dellinger’s Appeal, 21 P. F. S., 425. He was not a party to the proceeding or a claimant upon the fund, and hence could not be excluded upon the ground of interest. He was called to testify on behalf of his wife, who was a claimant, and directly interested. Hence his exclusion rests upon grounds of policy. Dellinger’s Appeal ruled that the exception in the act of April 15th, 1869, does not embrace the case of husband and wife testifying for each other, and that the public policy, which had heretofore excluded such witnesses, was removed by said acts. The learned judge of the Orphans’ Court was right .in following Dellinger’s Appeal, for at that time it stood unshaken: Taylor *v.*Kelly, 30 P. F. Smith, 95, however, heard and decided at Pittsburgh, last year, overruled Dellinger’s Appeal, and it was there held that when, under the act of 1869, a husband or wife is incompetent to testify, the wfife or husband of such party is also incompetent. This rule would exclude so much of the evidence of Emanuel M. Grimes as was admitted after the objection was made.

*427It is also clear that the declarations of John Bierly, Sr., made in the absence of the appellants, were incompetent. Upon what principle they were admitted does not appear. The learned judge of the Orphans’ Court concedes that the admission of this evidence by the auditor was improper, but regards it as unimportant. So much for the evidence.

On the other hand, Peter S. Bierly, one of the accountants, was examined against the objection and protest of the appellees, as to matters occurring prior to the death of the decedent, and even to prove the vital fact of the payment of his notes to the latter. It is true he was called by the appellees. But it was only as to a single fact subsequent to the death of the decedent. This did not entitle the appellants to prove by the cross-examination of the witness his transactions with the decedent. It was clearly in contravention of the act of 1869, and of the decisions of this Court upon said act: Gyger’s Appeal, 24 P. F. Smith, 42 ; McBride’s Appeal, 22 P. F. Smith, 480. The wife of each of the accountants was also examined as to matters prior to the death of the decedent. They were clearly incompetent under Taylor *v.*Kelly. We have thus two assignments'of error, which, as a matter of law, must be sustained. We have also manifest error in the admission of evidence on the part of the appellants. As to .the latter, there are no assignments of error, for the reason that the decree of the Court below was in favor of the parties objecting. Were the case here upon a writ of error to a judgment in a common-law proceeding, it would, perhaps, be our duty to reverse this case. But it is here upon an appeal from the decree of the Orphans’ Coui’t. We have the whole case before us, both as to the law and the facts.

It is provided by the second section of the act of 16th of June, 1836, P. L., 683,' that “it shall be the duty of the Supreme Court of this Commonwealth, in alL cases of appeal now made, or that may hereafter be taken, from the decrees of the several Orphans’ Courts, to hear, try, and determine the merits of such cases, and to decree according to the justice and equity thereof.” It has accordingly been held, that in an appeal from the final decree of the Orphans’ Court to this Court the whole proceedings in the case may be examined,-including the trial of a feigned issue to which no writ of error was taken: Hallowell’s Appeal, 8 Harris, 215 ; Finney’s Appeal, 1 Wright, 323. If, then, we eliminate from this l’ecord all incompetent evidence, and there yet remains sufficient to sustain the finding of the auditor, why should we reverse upon technical grounds ? The only result would be delay, and an additional expense to the estate. It *428was held, in Breneman’s Estate, 15 P. F. Smith, 298, that an exception to the admission of an incompetent witness before the auditor was fruitless, unless it be shown that his testimony led the auditor into some specific error. This is the true rule. Its application to the facts of this case is not difficult. No objection was made to the competency of Emanuel M. Grimes until near the close of his examination in chief. As no motion was made to strike out the portion of it given prior to the objection, strictly speaking, such portion of it should stand. But it is wholly immaterial whether it stands or not. The only fact that he testified to of any importance was the delivery of the notes of the decedent to his son Peter, for safe keeping. This is a conceded fact in the case, and does not depend upon the testimony of this witness, the allegation being that Peter had returned the notes to his father, and subsequently paid them. Nor are the declarations of Bierly, Sr., essential to the case of the appellees. They refer chiefly to the possession of the notes by Peter, which, as before observed, is a conceded fact in the cause, and of which there -was proof by his own admissions. The conversation with Spangler about the purchase of goods on credit, was not material. The fact that he did buy the goods, and did obtain a credit therefor from Spangler, was in proof. It was competent, though of very little weight. It is manifest that the case of the appellees is not essentially weakened by striking out the entire evidence of these declarations, as well as the testimony of Grimes. We cannot say, therefore, that its admission led the auditor into any specific error. On the other hand, if the testimony of Peter S. Bierly, his wife, and the wife of Samuel Bierly, is excluded, the case of the appellants is materially damaged. The direct issue was as to the payment of Peter’s notes. If the evidence before the auditor, including the three witnesses above named, was not sufficient to establish the fact of payment, how can it do so with said witnesses excluded? The only important witnesses left as to this fact are Annie S. Bierly, a daughter of Peter 8. Bierly, accountant, and Harvey 0. Bierly, a son of Samuel Bierly, the other accountant. Annie Bierly speaks of three or four payments in the year 1869, and mentions three sums, one of $200, and another of $190, and the other about $160. The testimony of Harvey Bierly is indefinite. He says, upon one occasion he heard his grandfather say that “ Peter don’t- owe him anythingand further, that he was present upon two occasions when Peter 8. Bierly paid the decedent money — once in 1869', and the other time in 1870; “ do not know how much he paid either time; it was a nice lot; pretty large pile of bills.” The auditor *429regarded the evidence of payment insufficient to establish such fact. We cannot say that he committed such clear error in this as would justify us in reversing his finding. No court would disturb the verdict of a jury upon such a state of facts as is here presented.' We give to the finding of the auditor precisely the same weight. That there was a conflict of evidence does not help the appellants, unless it first be shown that the auditor made a clear mistake, or that the weight of the evidence was decidedly with,them. This has not been established ; on the contrary, the probabilities of the case were all against the appellants. When John Bierly gave up the possession of these notes to his son Peter, he was about eighty-seven years of age. He had become wholly unfit to attend to business, and had recently sold a piece of land for a much less price than he had previously been offered for it. When the former offer was called to his attention he said that he then recollected it, but that his memory was so poor that he had forgotten it; that he was no longer fit to attend to business, and that he would give all his notes and papers to Peter to attend to for him. The notes were accordingly given to Peter, and, for this reason. Seven of them were Peter’s own notes, in his father’s favor; the first one maturing April 1st, 1867, the last one April 1st, 1873. It was proved by disinterested witnesses that these notes were in Peter’s possession in December, 1868. It -appears that for some reason the old man had become dissatisfied, and during the month referred to, Esquire Haines and Mr. Rockey called upon Peter with a power of attorney from his father, to demand the notes. Peter was in the wood-shed. He became angry, raised his axe, and threatened them. At first he denied having the notes, but when confronted with the evidence, finally admitted that he had them, and would not give them up. Samuel Bierly, one of the accountants, according to Rowe’s testimony, admitted the possession of the notes by Peter after the decedent’s death. There was an attempt by Samuel to explain this away by his testimony, but his account is not very clear, and he was an interested witness. There is not a particle of written evidence of the payment of these notes, or of either of them; no receipts or vouchers of any kind. In an ordinary case the possession of a note by the maker is prima facie evidence of payment, but no such rule is applicable here. The possession of Peter was the possession of his father. That possession certainly continued down to December, 1868, which was but about eighteen months prior to the decedent’s death. The decedent was then in his ninetieth year. It is conceded, and the evidence shows, that he was *430unfit to transact business in 1866', jet the auditor was asked to believe that, about four years later, when the old man’s infirmities, in the natural order of events, must have been greatly increased, his, son, who raised his axe against the men who called upon him with a power of attorney to demand the notes, voluntarily returned them to his father, and subsequently paid them, without taking any voucher or receipt therefor. This in the face of the admitted fact of the old man’s unfitness to transact business, and that as to three of the notes, they were not due for one, two, and three years, respectively. The appellants may be right as to the facts, but we are not prepared to say the auditor was clearly wrong in finding to the contrary.

It is always hazardous to review the finding of-an auditor upon the facts where it is in part based upon the evidence of witnesses who either have a direct interest in the subject of controversy, or are so connected with those who have, as to render them liable to bias. In such cases it often becomes a matter of credibility. The auditor has the witnesses before him face to face, and their manner of testifying may, in many instances, stamp their story with either truth or falsehood.

We see no error in surcharging the executors jointly. They filed a joint account, and there is evidence that Samuel Bierly knew of the existence of these notes ; knew they were in Peter’s hands, and that they were unpaid. If he desired to escape liability therefor, it was his duty to have filed a separate account, or to have insisted upon his co-executor accounting for said notes in their joint account. Having done neither, the surcharge against them must stand.

The decree of the Orphans’ Court is affirmed, and the appeal dismissed, at the costs of the appellants.