The trustee filed its first account in 1917 and its second account in 1924; it is the latter that appellants ask to have opened and reviewed for the purpose of surcharging accountant with alleged deficiencies in amounts paid to them on annuities between 1917 and 1923.
The part devoted to income in this second account is itemized on both debit and credit sides from September 28, 1923, to date of its last entry, March 1924; it is headed thus: "Income — From 1923, September 28th, — to which date it [the income] was paid to those entitled, and accounts rendered." To my mind, this says in effect that all questions concerning income prior to the date mentioned were closed; an understanding in which appellants appear to have acquiesced. They were present *Page 345 at the audit of the account in the court below and took no steps at that time to compel a more elaborate statement of income collected during the years between 1917 and September, 1923, but confined their claims to annuities payable in 1924, out of income collected after September 28, 1923; and having succeeded in their contentions as to the annuities payable in 1924, they now seek to have the income account for prior years opened, reviewed and restated, in order to recover the difference between the sums received by them from 1917 to 1923 and the amounts which they would have been entitled to under the law as declared in the decision on their 1924 claims. This they do notwithstanding the fact that the petition for distribution, filed by the trustee and not denied by any answer, particularly state: "The reason or purpose of the filing of the account is to determine the question on what basis the annuity to Robert E. Lee de Potestad and Rupert Featherstonhaugh shall be paid." "Shall be" questions what is to happen in the future; these words form part of a future-tense phrase and raise or suggest no question as to past payments. Had the idea been to question past payments, either the petitioner would have said that the account was filed to determine on what basis the past-due annuities "should have been paid," or the present appellants would have raised that point. There was a balance of income shown by the account, to which this petition applied, sufficient to pay the now-complaining annuitants, if they were entitled, a considerable portion of the sums at present claimed by them; but they made no such claim at the time of the adjudication of the account in the court below. In the words of the opinion filed by that tribunal, "The schedule of distribution directed by the adjudication shows a balance of income to be awarded, of $10,891.77, which, after paying the annuities due February 24th, 1924, left a balance of $7,031.77. The annuities due in earlier years had been paid in francs at the current rate of exchange, and the *Page 346 surplus income constituted a fund out of which these annuitants could have claimed the full payment of earlier annuities. No demand therefor was made."
The account brought the whole trust estate before the court, and any informalities and omissions in the part devoted to income were apparent when the account was filed; therefore, if the present petitioners had objections of that character to make, they should have entered them at the hearing in the court below; but, instead of so doing, they treated the account as sufficiently stated to raise the only question they then desired adjudged, as to the amount of the annuities due them in 1924. The schedule of distribution showed considerable balance of income after charging off the annuities due in February, 1924; appellants knew what amounts had been paid to them between 1917 and 1923, and the time of the adjudication of this account was the proper time to present their claims for arrearages, if they had any to make. They chose, however, to confine their claims to the annuities due in 1924, and proceeded entirely on that basis. In an action at law one must include in his claim everything that properly belongs to it, or be forever barred from suing for parts omitted; he cannot sue for items named as due, and, after succeeding in his suit, bring another action for earlier items of the same sort (Jenkins v. Scranton, 205 Pa. 598, 601; Stradley v. Bath Cement Co., 228 Pa. 108, 118; Anhaltzer v. Benedum, 266 Pa. 113, 114); this rule should be applied to the present situation. Appellants, when they had their day in court, having failed to claim for the amounts now alleged to be due them on annuties for 1917 to 1923, although pressing their claim for amounts due in 1924, ought not to be permitted to return to the former and recover.
It is well said in Woodward's Estate, 2 Chester Co. R. 9, 16, that "Distributees have some rights . . . . . .; there should come a time when their shares may be used by them unhampered by the anxiety of having to *Page 347 repay it, when they may feel at liberty to spend it or to adapt their style of living and expenditure to their apparent means," citing Montgomery's Appeal, 92 Pa. 202, 206. In the latter case we said: "It would be a great hardship upon distributees, to whom an [accountant] has voluntarily made payments . . . . . . if they may be called upon for repayment after the lapse of years; they may have spent it or increased their style of living in entire good faith and in ignorance of any overpayment." The present appellants might have demanded the filing of an account at any time during the six years in which they accepted their annuities on the depreciated franc basis, and allowed, without protest, the moneys now claimed by them to be paid to others; by whom, probably, such moneys were long since spent or disposed of as income rightfully belonging to them. Appreciation of the hardships that persons to whom moneys thus mistakenly awarded would suffer after they on faith in the court's decree, had changed their mode of living to accord with such increased income, no doubt largely accounts for the strictness with which our Orphans' Courts have always looked upon petitions for review, and the court below may well have considered this in acting on the present petition. But, be that as it may, the court followed precedent and established practice in refusing to open the account and grant the review asked for in this case; and, to my mind, its action in that regard ought not to be disturbed. As the court below has well said, the petitioners "had their day in court and are not entitled to another."
Section 48 of the Fiduciaries Act of 1917, P. L. 447, so far as the facts of the present case are concerned, must be read as virtually re-enacting section 1 of the Act of 1840, P. L. (1841) 1, for here no error of fact or law is alleged in the adjudication sought to be opened and reviewed, — it is alleged only that the court below failed to grant a measure of relief admittedly not at any time theretofore asked of it; hence this case is not *Page 348 within Troutman's Estate, 270 Pa. 310. The old rules apply here, and thereunder a review may be had as a matter of right only for error of law apparent on the face of the record or for new matter which has arisen since the decree; or it may be granted ex gratia for after-discovered evidence which could not have been procured by due diligence at the time the original adjudication was made: Riddle's Est., 19 Pa. 431, 433; LeMoyne's App., 104 Pa. 321, 323; Priestley's App., 127 Pa. 420,432; Milliken's App., 227 Pa. 502; Dox's Est., 227 Pa. 606. According to the authorities cited, these are the only grounds upon which a review should be granted, and appellants' petition discloses none of them.
While the circumstances of each particular case should be considered in deciding as to the application of the general rule, subsisting in all legal tribunals, that a claim must be asserted in full when its possessor has his day in court, review of adjudicated matters being granted of right only under exceptional circumstances and rarely as a matter of grace, yet this is a rule of public policy to economize the time of the courts, which belongs in common to all litigants, and there is no court in the state where it is more important to adhere to this well established and most beneficial rule than the overcrowded Orphans' Court of Philadelphia County. I cannot join the majority in holding that the judges of that tribunal, by their unanimous refusal of the present petition, abused the power vested in them.
For the reasons stated I here enter my dissent.