Beatty v. Smith

Per Cur.

Unquestionably the recognizance in the Orphan’s Court is in the nature of a judgment. The interests of minors as well as persons of full age, would be strangely affected, if a doctrine should prevail, that while they were divested of their interests in the land, their distributive shares of the valuation should not he placed on a secure and permanent footing. If they are liable to have their dividends reduced, by circumstances or considerations which have occurred anterior to the recognizance solemnlygiven, they will be but badly protected by the law. Why was not this defence set up by the son in the Orphan’s Court, previous to their decree and his subsequent recognizance ? Can an\ good reason be assigned for it. We cannot *103presume that the inquest have appraised valuable permanent improvements made at the son’s expence, as the property whereof the father died seised.

Explained in 5 S. & R. 155. Messrs. Duncan, S. Riddle and Brotherton, pro quer. Messrs. Watts and Orbison, pro def.

The testimony on the two first items must be overruled; as *1041 tw0 ^ast items> which have happened since the 4-i valuation, as it is said under the agreement of the family, evidence applicable to them may be given.

The defendant then offered to prove the plaintiffs’ acknowledgment made since the valuation of the lands, that certain matters anterior thereto were justly due from them, and ought to be allowed; and cited defalcation act. I St. Laws 65.

Sed per Qur.

The defendant is not compellable to make a set off; and having been silent as to these acknowledgments in his notice of set off, it would be a surprize on the plaintiffs to urge them at present. They must be the subject of a future action.

The plaintiffs’ counsel agreed that £th of the costs attending the valuation and confirmation of the lands in the Orphan’s Court, and also of the costs in Snevely’s ejectment, should be deducted from the recognizance, and that the jury should ascertain how much the defendant was entitled to for his trouble and expences in defending the ejectment, and charge jtth part thereof to the plaintiffs.

The court recommended to the parties, that an amicable action should be entered, to settle all the family disputes. They observed, that the children having been all brought up together on the land, it was highly probable, that such improvements as had been made on the premises during the minority of the son, were effected by the general stock. When the daughters married and left the farm, they were respectively intitled to their proportions of the rents and profits, deducting thereout their shares of the taxes : if any permanent improvements had been made at the exclusive costs of the son, which afterwards were valued by the inquest, the daughters should be charged with their proportions thereof; but if such improvements had not been so valued, then they were intitled to the full balance.

To this the plaintiffs’ counsel agreed; but the defendant refused, unless the whole matters were submitted to the jury in the present suit.

The jury gave a verdict for the plaintiffs for 162I. ys. 8d.