These exceptions were dismissed by the court and the adjudication was confirmed in the following opinion by
Hanna, P. J.:“As is clearly shown by the auditing judge, the single question is, could accountant- have collected the balance due upon the bond given upon the sale of decedent’s in*441terest in his firm at any time since the confirmation of the first account? It is conceded the bond has, ever since that time, been uncollectible. This being the case, we need only say that accountant is, beyond all question, properly entitled to the credit claimed in his account for the balance due on the bond as a “bad debt” of the estate. The exceptions are accordingly dismissed, and adjudication confirmed.”
Jerome Garty and Mayer Sulzberger for appellant. We object to the allowance of the credit on two grounds, viz: First. That the accountant had no right to sell decedent’s interest in a valuable business to irresponsible parties on credit and without security. Second. That the loss arose from his neglect to enforce payment of the instalments from the debtors, from time to time, as they fell due. If an administrator, instead of winding up the business, of the testator, continues it, or involves the assets of the estate in the risk of mercantile adventure, the wisdom of his course is judged by the event, and if the result prove disastrous, he must stand the responsibility; Stern’s Appeal, 14 Norris, 504; Wood’s Estate, supra; De Haven’s Estate, 39 Leg. Int., 450; Labouchere®. Tupper, 11 Moore, P. C., 198; 3 Williams on Executors, 6 Am. Ed., 1890. But it is claimed by the accountants, and so ruled by the orphans’ court, that the appellant is precluded by the adjudication and confirmation of the first account from showing negligence on their part in failing, prior to ttiat time, to collect the bond. And that the only question open for consideration is whether the bond could have been collected after May 14, 1879, the date of the decree. In this it is submitted there was error. There are three elements universally necessary to constitute an estoppel by judgment:*441William Devoo Wilson thereupon took this appeal, assigning for error the action of the court in dismissing his exceptions, in allowing the accountant the credit claimed by him in the account for $15,391 52, “balance of first account uncollectible,” in refusing to surcharge the accountant with the sum of $15,391 52, the balance in his hands from first account, and in refusing to surcharge the accountant with the sum of $15,391 52, as the value of the bond and warrant of attorney given to him December 1, 1871, by J. Milton Baab et al., for the purchase of the interest of Franklin S. Wilson, deceased, in the firm of Rockhill & Wilson.
April 7th, 1884. First. The judgment must have been valid, that is, not void. Second. It must have been rendered on the merits. Third. It must have been final: Bigelow on Estoppel, 2d Ed., 25. Where the real merits of the present action have not been at all inquired into in a former proceeding, issue may be taken on the fact, if the judgment be pleaded in bar: Starkie on Evidence, page 334, et notas. An examination of the adjudication on the first account shows that there was no judgment upon the matter in controversy here. • The administrators, to balance their account, stated on the credit side of it, that they had, in their hands, uncollected, the bond, the balance of the appraised value of which was $15,391 52. The court adjudicated that this balance should be the subject of a further account. A decree in the orphans’ court, confirming one account, is conclusive only as to the funds then distributed, and does not bind the court when another account in the same estate comes before it for adjudication: Guenther’s Appeal, 4 W. N. C., 41; Kline’s Appeal, 86 Pa., 363. F. Q. Dale, Samuel Dichson, and J. G. Bullitt for appellee. ’■ It is submitted that the sale was judicious, that nothing could have been realized at that time from a hostile winding up of the business ; that, besides destroying any chance of realizing anything from the right title and interest of the decedent, there was every reason to apprehend that the firm assets would not pay the debts, and the securities of the decedent already pledged would have been sacrificed; so that instead of realizing $97,187 48 net out of assets appraised at $82,447 68, much less than the appraisement would have been secured. The widow, by the approval of the sale, and the son, by his acceptance of his share of the portion of the purchase money actually received, ratified the sale of the interest, and both are now estopped from disputing the propriety of the original transaction. Per Curiam :The sale made by the administrator was in good faith, and in fulfillment of an arrangement made by the intestate in his life time. We think the sale a very judicious one. The whole evidence *443impresses us with the conviction that the administrator was not guilty of such negligence in failing to collect the sum agreed to be paid, as to make him personally liable'. He appears to have exercised a just and wise discretion; and to have realized as much for the estate as could have been done by any course he might have pursued. The widow of the decedent approved of the sale, and the appellant- ratified it by receiving his share of the purchase money. There is no error in the decree.
Decree affirmed, and the appeal dismissed at the costs of the appellant.