We know of no reason why a trustee m'ay not file an account after the lapse of time herein complained of, and even *100though the accounting could not have been adversely compelled. This except-ant administrator or his decedent could have compelled the account complained of at the proper time, but failed to do so.
The motion to strike the account from the record was properly refused. The exceptant could have demanded the vouching of the account and put the accountants to the proof of every item contained therein. He probably could not dispute the items, at least he acquiesced in them, and must now stand bound by their confirmation.
The memorandum submitted by counsel, showing nothing was due this exceptant, cannot be called an unsworn ex parte statement. It was compiled from the accounts of record in this estate and may be verified by reference thereto.
The eighth paragraph of this will recited the debts due by this son, directed they should not be released, and empowered the trustees to use their discretion in collection. The testator aimed at equality as between his children. If the debt was not repaid, it was to be charged as an advancement against his son’s distributive share, and he was to take nothing until the shares paid the others actually amounted to the principal and interest due by him. The testator has served his own purposes by mingling the legal conceptions of debts and advancements, and this he had a right to do. Whether these debts could now be collected is aside from the question. See Knoppel’s Estate, 1 D. & C. 262. This son can take nothing until the terms of the will have been complied with by according equality to the other children.
In the view which we take of the case, it becomes unnecessary to consider the competency to testify of Francis I. Gowen. Before this exceptant can take anything, the burden is on him to observe the terms of the will, i. e., to show he has discharged his obligation to the estate or stand aside until the others have had equality with him accorded to them.
Statements offered in the petition for distribution have no evidential value. In this case the averments complained of were mere deductions from the accounts of record in this estate and may'be verified by reference thereto.
Both sets of exceptions are dismissed and both adjudications are confirmed absolutely.
Lamokelle, P. J., did not sit.