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there is neither an error of law or new matter since the decree, which must be the basis of a petition for relief under said Act.

It has, however, been held that the Orphans' Court is not bound by the rules of practise which prevail in a court of chancery, and that where the decree contains an injurious mistake of law or fact produced either by the inadvertence of the mistake of the parties, and no rights have intervened, the court may grant a review. In Young's Appeal, 99 Pa. 74, Justice Green, on page 83, said: "It cannot be doubted that the court below had ample power to correct the error of its original decree either under or independently of the Act of 13th October, 1840. Nothing had been done under the decree and if it was erroneous, it ought to be corrected in the interest of justice and by the court that made it . . . . . The discretion

ary power of the Orphans' Court to correct its own errors by petition of review outside of the provisions of the Act of 1840 has been affirmed in the cases of Gillen's Appeal, 20 P. F. Smith, 410, and is manifest upon plain principles applicable to the power of all courts over their own decrees."

In Milne's Appeal, 99 Pa. 483, 489, Justice Gordon 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 by its own inadvertence or by the blunder of the parties. A sense of fair dealing and justice would be authority enough, in the absence of any other, for so holding.'

In Taylor's Estate, 28 Dist. R., Judge Lamorelle, in considering the principles upon which petitions for review are granted, said, inter alia: "Liberality is to be exercised in reviewing and opening adjudications where the rights of the third parties have not intervened, when otherwise manifest wrong would be done or perpetration of fraud accomplished."

It follows from the foregoing authorities that, if it is evident that a manifest mistake was made in the last adjudication, we should not hesitate to correct it. That such a mistake was made cannot be doubted, if it is true that the petitioner charged herself with $2,342.54 more than she actually had, and for which she was entitled to a credit. The mere fact that the mistake is ascribable to the petitioner should not deter us from permitting it to be corrected. The reason for filing the last account, which we are now asked to open, was the old age and physical incapacity of the petitioner, who was the trustee, and it is not unlikely that these very circumstances may account for the error made by her. Moreover, she is the widow of the testator, and was undoubtedly his first concern in the distribution of his estate, as is shown by the generous provision made for her and the liberal power given to her in managing the estate. In the absence of any intimation of

wrong doing on her part in handling this estate, we feel that justice and fair dealing to her as the widow and accountant, impel us to give her an opportunity to demonstrate to the court that an error has been made, which, if not corrected, would be a manifest wrong. To refuse to do this, under the circumstances in this case, the money being still in the control of the court, even though it has been paid to the new trustee, would not comport well with the principles of honesty and justice, and especially so, when the correction can be made without injuriously affecting the rights of persons interested in the estate: Yoder's Appeal, 45 Pa. 394, 397.

The adjudication filed on April 3, 1920, is hereby opened and set aside, and a rehearing is granted in said estate, after due notice to all parties interested.

LOOS' ESTATE.

Decedents' Estates-Claim of Husband Against Wife's Estate-Evidence-Proof of Claim by Book Entries.

1. The claim of a husband against his wife's estate for cost of a garage erected on property occupied by the decedent will be disallowed where it appears that the building was done under his direction and upon his credit and there is no evidence to show that he was acting as her agent.

2. A book containing entries which are not intelligible to anybody excepting its owner, filled with alterations and interlineations, containing unconnected slips of paper and entries foreign to claimant's business, is without value as evidence to prove an account; nor is such a book admissible in corroboration of parol evidence.

In the Orphans' Court of Berks County.

No. 35 October Term, 1920.

Audit of the account of Joseph L. Loos, administrator.

Wm. E. Fisher for accountant.

Chas. Wm. Matten for claimant.

R. G. Bushong for Alma Hubler.

Opinion by Schaeffer, P. J., October 30, 1920.-The decedent died on the 24th day of February, 1920, intestate and married, leaving to survive her a husband, Joseph L. Loos, entitled to a third of her estate, and the following issue, both of whom are of full age and entitled to the proportions set opposite their respective names, viz.:

1. Raymond H. Hubler, a son,

Alma E. Hubler, a daughter,

1-3; 1-3.

The account contains the principal proceeds of personal' estate, and shows a balance for distribution of $916.93. Ac

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countant submits to be surcharged $8.20, interest collected on bank deposits, and asks for and is allowed an additional credit of $2.00, cost of recording release.

Against the balance, Joseph L. Loos has presented a claim of $450.00, the cost of a stable or garage erected on the property occupied by decedent, in which, we gather from the statement of her counsel, she had a life estate.

The claimant is the husband of decedent; and the evidence. is that during the early summer of 1911 a stable or garage was erected on the real estate occupied by her, at the direction and under the supervision of claimant, her said husband. During the course of the operation, she seems to have been present at times and to have expressed certain preferences as to the character of the building and the quality of the materials to be used; but he appears to have been the one in direct contact with the workmen, ordering and paying for the materials and for the necessary labor that went into the construction. Therefore, the operation appears to have proceeded under his direction and upon his credit; and while this in itself would not negative the idea that he was acting as her agent, there is no evidence in the case to show that he was acting in any such capacity.

The only evidence submitted to show an obligation on her part to pay for the work, are several declarations made by her to one of the workmen on the job. This was the carpenter who seems also to have been acting in some such capacity as foreman. To him, after inquiring whether he was being paid for his labor, she declared on one occasion, in the absence of the claimant, that after she got her money she would pay Mr. Loos. On another occasion, she expressed a preference for cement blocks over frame or some other cheaper material, for the stable. Beyond several such loose declarations, decedent-claimant's wife, it must be remembereddoes not appear to have gone; and assuming that they had been followed by evidence conclusively fastening upon her an obligation to pay, the best that could be said of such testimony is that it might be proof of a debt, in the nature of a loan or advancement from claimant to decedent.

The trouble with this theory is that no debt of such nature has been established. There is no written evidence of a loan, in the case. Excepting decedent's loose declarations to a workman, already referred to, nothing was said or done by the parties from which a loan could be implied. No amount has been shown. In the testimony of the carpenter in charge, appears a declaration by decedent that the stable would cost close to $600.00. But this was a mere estimate, obviously of no value, and in conflict with the amount of the claim itself.

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Claimant attempted to prove the amount of his claim by offering what purported to be his book account of original entries of the transaction. At the audit, we rejected the offer; and an inspection of the book since then has only served to convince us that our ruling was correct. Its admissibility is precluded by nearly all the objections against books of this character, set down in Fulton's Estate, 178 Pa. 78-87, where Mr. Justice Mitchell, among other things, said: "But there is an insuperable objection in the present case, that the book is not one of entries in the regular course of business No precedent has been shown for the admission of such a book, and the analogies are all against it. While the question does not seem to have arisen in this form, yet all the authorities hold that the books must show that they are kept in the regular routine of business. That is one of the greatest safeguards of the reliability of such evidence. Thus, alterations or interlineations will discredit the book, and, unless explained, will keep it from the jury: Churchman v. Smith, 6 Wh. 146. Its general character may be impeached by showing irregularities in other accounts than the one in issue: Funk v. Ely, 45 Pa. 444. Unconnected slips of paper showing charges are not admissible as a book of original entries: Thompson v. McKelvey, 13 S. & R. 126. Entries, even in a regular book, are not evidence of the sale of an article not in the party's business: Shoemaker v. Kellog, 11 Pa. 310; Stuckalager v. Noel, 123 Pa. 53. And in Smith v. Lans, 12 S. & R. 80, it was said by Tilghman, C. J.: 'It is a great objection to these books that they do not contain a daily entry of the general transactions at the mill." "

The most casual inspection of this book shows it to be unintelligible to anybody but its owner, to be filled with alterations and interlineations, to have attached unconnected slips of paper, to contain, as for instance the one in question, an entry of a transaction foreign to claimant's particular business, even if the book could be said to embrace entries of such a business, and, finally, to be of no value as evidence to prove an account. Nor was it admissible, as in Donahue v. Connor, 93 Pa. 356, in corroboration of parol evidence. For that purpose, it would require much explanation; and since the explanation would have to come from the claimant, and the claimant is incompetent to testify, it cannot be admitted as such evidence.

Our conclusion is, therefore, that claimant's evidence falls far short of proving a debt, either to him as agent from decedent as principal, or as a loan or advancement by him to her; and his claim is accordingly disallowed.

Balance due the estate as appears by the account filed $916.93 Amount of surcharge....

Amount of additional credit....

DISTRIBUTION.

To Orson N. Ritzman, Esq., Adj. costs.

To Joseph L. Loos..

To Raymond H. Hubler.

To Alma E. Hubler...

8.20

$925.13

2.00

$923.13

5.00

$918.13

$306.05

306.04

306.04

$918.13

NOTE: The foregoing distributive shares are subject to deductions for direct inheritance tax, payable to the Commonwealth of Pennsylvania.

The Account, Statement, Copy of Proceedings, &c., are hereto attached: AND IT IS ORDERED AND DECREED that Joseph L. Loos, Administrator as aforesaid, do pay the distributions to the persons respectively entitled thereto.

KNOBLAUCH v. SCHAEFER et al.

In the Court of Common Pleas of Berks County in Equity.
No. 1238 Equity Docket, 1919.

Exceptions to decision reported in 12 Berks Co. L. J. 171.
Exceptions filed by defendants.

Walter S. Young for defendants and exceptions.

Jno. B. Stevens for plaintiff.

Opinion by Endlich, P. J., November 1, 1920.-To the decision rendered May 17, 1920, in this case, reported in 12 Berks Co. L. J. 171, the defendants have filed a number of exceptions. A reconsideration of the controversy in the light of the exceptions and the arguments upon them has not led to the conviction that the decision excepted to requires modification. If under such rulings as are found in Irvin v. Bleakley, 67 Pa. 24; Boyd v. McCullough, 137 id. 7; Eberz v. Heisler, 12 Pa. Super. Ct. 388; Hughes v. Antill, 23 id. 290, a tender

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