Watkins v. Bevans

Tuck, J., delivered the opinion of this court. This is an appeal from an order of the orphans court of Washington county, directing distribution of the estate of Robert W. Watkins. It appears by the record, that on the 1st of March 1854, the court held a meeting for the purpose of closing this estate, and directed the manner in which the appellants should state their final account as executors, specifying the items with which they should be charged. On the 2nd of the same month the executors accounted, “in pursuance of the order of the court,” which account the court approved, stating that it had been “settled in obedience to the order of the court,” and directed a distribution of the estate according to that account and upon their construction of the will of R. W. Watkins.

From this last order the appeal is taken; and one question for our decision is, what are the points presented for review ? ⁴⁹⁴ The order of the 1st of March was not final, but merely directory as to the manner of taking (he account. The whole proceeding shows, that further action on the account was to be had before a distribution could be made. In chancery, when instructions are pronounced for an audit and an account is taken and confirmed, an appeal from the order of ratification opens all questions arising on the account. Miller vs. Allison, 8 G. & J., 35 .

This appears to be a similar case and must be governed by the same rule. And if this were not so, the order itself, without reference to the account being erroneous in several respects, we should express our opinion upon the whole case in order that a proper account may be taken when the cause is remanded. The court below placed a construction upon the will which is clearly wrong. The testator devised his land to his wife at a valuation.

His purpose was, that she should take the land, if she stood by the will, at the price he placed upon it. For what other reason did he estimate its value in his will but that, in ascertaining the third of his estate devised to her, there might be no controversy between her and the children as to the value of the land? She took the land for life and held it during that period, enjoying the use of the whole, and yet the orphans court have charged her only with three-sevenths of the fee-simple value. If the widow had lived and the land had been sold under a decree in equity, she w'ould have received a proportion of the proceeds in lieu of her life estate, and the children would have received the balance.

But such allowances are made because the enjoyment of the estate is taken away by the sale, and equity allows an equivalent according to the value of the unexpired life. We apprehend that where the estate has been enjoyed for the whole term by the tenant for life, this commutation cannot be claimed by her administrator. The effect would be to give a life estate, and something besides, after her death. We cannot suppose that the testator meant his estate to be administered in any such manner.

In ascertaining her third of the estate, the land must be valued and charged at fifty dollars per acre. We are at a loss to imagine upon what ground the settle ⁴⁹⁵ rnent of the second account of the executors was set aside. That account, and the third, are not in the record, and probably it is defective in other respects. If intendments are to be made in aid of the present account and order, the settlements previously made with the