contract produced by actual intimidation is voidable, not only where the circumstances were sufficient to intimidate a man of ordinary firmness, but were sufficient to and did intimidate the particular person because of his or her infirmity, though insufficient to intimidate one of ordinary firmness. The question of duress ought not to be submitted on a scintilla of evidence. We are of opinion that the fifth assignment of error must be sustained. It is unnecessary to note the other assignments. The Court charged in effect that a voluntary payment of money without fraud or constraint, though in ignorance of the law or the legal circumstances of the case, cannot be recovered back. There being no sufficient proof of fraud or coercion, no duress, the plaintiff was not entitled to recover. Judgment reversed. Opinion by TRUNKEY, J. Jan. '84, 21, 146. C. K. Z. Feb. 4, 1884 C., who had been a member of the family of the dece dent and had been treated by him as one of his children, testified before the auditor, who admitted her testimony, as follows: "E. W. M. Blaine said he never could pay me for what I had done for him, services that I had rendered him; that his wife wanted him to do by me the same as his other children: said he had left notes amounting so $500 with A. W. Blaine to be paid over to me when I wished it:" Held, that this testimony was incompetent to establish any legal obligation against the estate of the decedent. Held, further, that the claim to the notes could not be sustained either as a gift inter vivos or as a donatio causa mortis. An administrator who has acted in good faith without fraud or unfairness is, in some cases, entitled to commissions, though he has acted negligently. The confirmation of the partial account of an adminis trator is conclusive only as to matters included in it which have been adjudicated under it. An administrator who takes charge of the real estate and receives the rents and income thereof, is accountable as agent to the heirs, and cannot be charged for such rents in his account as administrator. When it is attempted to surcharge an administrator with the amount of a claim which he has failed to collect, den is on the exceptants to prove that the claim is coland he shows that the claim is not a sound one, the burlectible. In such case it is the duty of exceptants, and not of the administrator, to call the debtor as a witness. The evidence in this case held to show that a certain claim of the decedent's estate was too doubtful to render it proper to surcharge the administrator for failing to col lect it. Appeals of H. A. Fross, Emma Fross, W. A. Blaine, and Arthur E. Blaine, children of E. W. W. M. Blaine, deceased, and of Dyer Loomis and W. E. Marvin, administrators of the estate of A. W. Blaine, deceased, from a decree of the Orphans' Court of Erie County, overruling their respective exceptions to the report of an Auditor appointed by the said Court to audit the accounts of the said Dyer Loomis and W. E. Marvin, administrators. A. The facts material to this case, other than those set forth in the opinion of the Supreme Court are as follows: E. W. M. Blaine died October 31, 1858. Letters of administration were issued in November following to A. W. Blaine, his brother, and W. A. Blaine, his son. After citation a partial account was filed by A. were filed, and the account was confirmed. W. Blaine on May 2, 1864. No exceptions W. Blaine died in January, 1878. No final account having been filed, and a citation having been served upon his administrators, Dyer Loomis and W. E. Marvin, requiring them to file an account of the administration of A. W. Blaine on the estate of E. W. M. Blaine, they filed such an account July 11, 1879. Exceptions were filed on behalf of the heirs of E. W. M. Blaine, and were referred to an Auditor before whom evidence was taken as to the matters in dispute. paid to Matilda Glass. This was allowed by the The administrators claimed credit for $741 Auditor and sustained by the Court. The evidence upon this point is fully set forth in the opinion of the Supreme Court. (First to fifth assignments of error on the part of H. A. Fross et al.) The Auditor refused to charge the accountants with the amount of a note executed by Amos Gould, and dated January 28, 1860, for the sum of $500. This note was made more than a year after the death of E. W. M. Blaine, and was payable to A. W. Blaine, administrator of E. W. M. Blaine. The debt did not appear in the indebted to E. W. M. Blaine in any such sum in inventory, nor was there proof that Gould was his lifetime. Exceptions to this finding were dismissed by the Court. (Sixth assignment of error on the part of H. A. Fross et al.) The notes of J. C. Hays, of $36.24 and $30.84, respectively, were sued upon in the Court of Common Pleas of Crawford County, | to Mrs. Matilda M. Glass, formerly Matilda HarPa., to No. 198 August Term, 1859, and judg- ris, as per voucher No. 7. ment recovered for the sum of $74.71 and interest from February 11, 1860. The judgment was receipted February 27, 1868, and at that date amounted to $110.77. The accountant was charged with this amount in the final account. The Auditor reported that the "accountant has not claimed credit for any expense incurred in the collection of this debt, and as he had a right to retain a reasonable amount in his hands to pay expenses, etc., the Auditor does not think he should be charged with interest from the date of the receipt of the money until the present time, as requested by exceptants in the 60th item of their exceptions." Exceptions to this ruling were dismissed. (Seventh assignment of error by H. A. Fross et al.) The accountant claimed $250 for A. W. Blaine's services as administrator. This was allowed by the Auditor and approved by the Court. (Eighth assignment of error by H. A. Fross et al.) Loomis and Marvin, administrators, filed, inter alia, the following exception, which was overruled by the Court:— It appears from the testimony, and by the report of the Auditor, that Matilda Harris (now Matilda Glass), in the year 1848, when a child ten or eleven years of age, was taken into the family of E. W. M. Blaine, and there remained until the time of his death, in 1858. She was not related to Mr. Blaine either by blood or matriage; her father was dead, and her mother was poor; she was by Mr. Blaine during that time clothed, educated, maintained, and in all respects treated as a member of the family, and as his own child. The wife of Mr. Blaine was an invalid, and died two or three years before the time of her husband's death; during her illness, and after her decease, Matilda had charge of the house, and conducted the domestic affairs of the household. Matilda Glass was called as a witness, under objection, to testify in behalf of the administrator, as to matters occurring between E. W. M. Blaine and herself, in relation to and in support of her claim for services, and also to prove payment of the claim by the administrator. She testified as follows: "E. W. M. Blaine said he never could pay me for what I had done for him-services "The Auditor erred in not dismissing all the that I had rendered him; that his wife wanted exceptions filed to the account, for the reason him to do by me the same as his other children; that the exceptants are estopped from contesting said he had left notes amounting to $500 with A. the account filed by A. W. Blaine, May 2, 1864, W. Blaine to be paid over to me when I wished said account purporting to be a full account of it; they were against Harper & Co., or Harper, all moneys collected by him to that date and the I think; it was a week or two before his death." exceptants, being then of full age or represented e. "Do you know personally whether A. W. by guardians, and living in the same town with Blaine had been there in conversation with E. W. accountant during the whole time between the M. Blaine that same day ?" A. "He was there filing of said account and the death of account-that morning. All that I heard was that they ant-about fourteen years. (First assignment of were talking about the notes, and I heard E. W. error by Loomis et al.) M. Blaine say that he wanted me to have these notes, $500, when it was collected out of the notes." The Auditor surcharged the accountant for rent of a farm belonging to the heirs of E. W. M. Blaine, which the accountant had leased to one Johnson. Exception thereto overruled. (Fifth assignment of error by Loomis and Marvin.) The facts and evidence relating to the other assignments of error on the part of the administrators are fully stated in the opinion of the Supreme Court. Both the accountants and the heirs of E. W. M. Blaine took appeals, assigning, inter alia, specifications of error as above. Benson and Brainerd, for H. A. Fross et al. Jno. P. Vincent and Alien & Rosenzweig, for Loomis and Marvin. April 7, 1884. THE COURT. The first five assignments of error, in the first of these appeals, are the allowance of a credit to the accountants for $741, paid by A. W. Blaine, as administrator of the estate of E. W. M. Blaine, deceased, The first question which arises is as to the competency of Matilda Glass to testify in support of her claim, which arose out of matters occurring in the lifetime of E. W. M. Blaine, to which he and the witness were the parties. As the claim of the administrator is prosecuted against the estate of a decedent, in an action or proceeding to which an administrator is a party, the case falls within the letter as well as the spirit of the proviso to the Act of 1869. She is not rendered competent by that Act, and therefore the question is one to be determined under the law as it stood prior to that statute. Her claim had been paid by the administrator, and a voluntary payment, made without fraud or constraint, in ignorance of the law merely, cannot be recovered back (Natcher v. Natcher, 47 Penna. St. 496); it may be, therefore, that she was not incompetent on the ground of interest; but she was the original party to the claim, and the payment of it by the administrator gave him the right to a credit for it in his account, if it was a proper and just debt against the estate. The payment being voluntary, she was without responsibility for the event. She was incompetent, not on the ground of interest, but because from principles of public policy it is necessary to exclude her. Her receipt may not be considered a technical assignment of the claim to the administrator, but the case clearly falls within the principle announced in Graves v. Griffin (7 Harris, 176); Bailey v. Knapp (Id. 192); Hatz v. Snyder (2 Casey, 512), and other cases, that "whilst one of the parties to a contract in litiga tion is denied the privilege of testifying, the policy of the law is to close the mouth of the other." general, proof of services rendered or labor performed by one person for another, raises an implied promise to pay, in this case the established relation of the parties repels the idea of a contract. Matilda Harris was a member of the family of Mr. Blaine; he was to her in loco parentis, she was treated as a child; the implication which would otherwise arise is thus fully rebutted. The transaction between her and the decedent, a week or two before his death, cannot be regarded as a contract, as it lacks the essential element of a valid consideration. Although she was, as Mr. Blaine confessed, "a dutiful child" to him, and doubtless deserved not only his gratitude, but, perhaps, a more substantial reward, there was no legal obligation upon him to pay her anything; he owed her nothing more than he would have owed his own child under the same circumstances, and, as a general rule, an express promise cannot be supported by any consideration, wholly past and executed, from which the law could not imply a promise. If Matilda Glass had transferred her claim to the administrator, or to any other person, bona fide, and for full consideration paid, it would not be pretended that she could testify in support of it, whether that was the purpose of the assignment or not. The authorities upon this point Nor can the claim be sustained as a gift inter are numerous, and it is unnecessary to refer to vivos. A gift is a contract executed, and must them. Her incompetency in such case, however, be accompanied with such a delivery of posseswould not result from her interest, but would rest sion as makes the disposal irrevocable. The deupon principles of justice and equality, as well as livery must be according to the nature of the of policy. We cannot distinguish between the subject, and the donor must, in some form, reeffects of a technical assignment made, and of a linquish not only the possession but all dominion transaction such as here occurred between Ma- over it. Where these essential requisites are tilda Glass and A. W. Blaine, the administrator. complied with, the gift is perfect and irrevocable. In both instances the original holders of the claim, After the decease of the alleged donor, the we may assume, receive full consideration, are transaction should be established by clear and exempt from liability to refund, are devoid of satisfactory evidence. Matilda Glass, the alleged interest in the result, have acted bona fide, and donor, was at the time sui juris, and actually without intention of becoming witnesses, and the present, yet the notes were neither delivered effect in both, if the rule were not as stated, into her personal control, nor were they assigned would be, by a simple transfer of right, to enable to her; indeed the language used at the time one party to a transaction to support the validity was not such as necessarily to import a gift of the of his claim by his own testimony, whilst his ad- notes as such. Mr. Blaine said "he had left versary, whether dead or alive, is denied the ex-notes, amounting to $500, with A. W. Blaine, to ercise of the same right. It matters little how be paid over" to her when she wished it; he the transfer is effected; it may be by an assign- told A. W. Blaine "he wanted her to have the ment or an indorsement, by mere delivery, or notes, $500, when it was collected out of the by payment, as in this case. It is not the tech-notes." nical form of the transaction which governs or gives it effect. The witness was competent of course to prove payment, or any other matter not involving the original transaction. Where the reason of the rule ceases the rule itself ceases. We are clearly of the opinion, therefore, that Matilda Glass was not a proper witness to support her own claim for the use and benefit of the administrator; and this practically disposes of this branch of the case, as the claim rests upon her testimony alone. A. W. Blaine was then the custodian of the decedent's papers, or some of them, and he subsequently became the administrator of his estate. The words of the decedent are altogether consistent with a mere agency; he had left," or committed the notes to the custody of A. W. Blaine; if he should at any time change his mind the notes were yet within his control. W. Blaine was the agent of the donor, and not a trustee for the donee. For the reasons already suggested, the claim could not be sustained as a donatio causa mortis. A. If, however, her testimony was competent for It follows, therefore, that the payment to the purpose offered, we regard it as insufficient Matilda Glass was unauthorized and the credit to establish any legal obligation against the estate claimed as per voucher No. 7, must be disallowed. of E. W. M. Blaine, deceased. Although, in | It would have been more agreeable for us to have been able to allow this claim, but the exceptants | same date as the last item, being for the note having raised the question as to the legal obliga- unpaid, was for the uncollected balance. If this tion of the estate, the responsibility rests with balance was wrong or incorrect, it should have them, we pronounce upon it as a question of been the subject of an exception to the confirmalaw. The abuses which are liable to result from tion of that account; the decree was conclusive any relaxation of these rules of law, require a as to all matters adjudicated under it, and this rigid adherence to their salutary provisions. included the Harper, Ross & Co. note. So far There may be instances where they appear to as the assignment relates to the note of Harper & operate harshly, but the wisdom and policy of Co., it has no merit. their general application cannot be doubted. The remaining assignments are without merit and are not sustained. The note of Amos Gould did not appear upon the inventory, and under the evidence we think the Auditor was justified in finding that it belonged to the administrator. The action of the Court below, refusing to charge interest on the Hayes notes, and allowing credit for payments to G. W. Starr for the Hamot heirs, was certainly correct. The accountant's estate was also entitled to credit for commissions; he may have been negligent, and his estate perhaps suffers in consequence of that, but he seems to have acted in good faith, without fraud or unfairness. In the appeal of Dyer Loomis and W. E. Marvin, administrators of A. W. Blaine, deceased, the first assignment of error raises the question of the conclusiveness of the decree confirming the account filed by A. W. Blaine, in his lifetime, on the 2d May, 1864. An administration account, which does not purport to be final,, and which upon its face does not embrace the whole estate, is of course not a final one (Chambers's Appeal, 11 Penna. St. 436); but the confirmation of a merely partial account is a definitive decree, and is conclusive as to the matters embraced in it. (Rhoads's Appeal, 39 Penn. St. 186.) Such an account cannot, of course, be conclusive as to matters not included in it; it is simply conclusive as to such matters as have been adjudicated under it. (Shindel's Appeal, 57 Penn. St. 43; Leslie's Appeal, 63 Penn. St. 355; McLellan's Appeal, 76 Penn. St. 231.) The account filed 2d May, 1864, purports on its face to be a "partial account" only, it is therefore only conclusive as to such matters as have been passed upon in it. The final account afterwards filed, and now under exceptions, plainly shows that the first was but partial, as it contains a number of charges for portions of the estate afterwards received. The first exception in its general form is, therefore, not sustained. The second assignment, so far as it relates to the note of Harper, Ross & Co., we think is sustained. The note was dated April 10, 1857, and was for $392.74. The accountant, in his partial settlement, charges himself with amounts received thereon as follows: April 5, 1860, $100; April 29, 1864, $221.15. The charge of $300, of the | The fifth assignment is sustained. The administrator was not properly chargeable with the rents of the real estate; they constitute no part of his account. The administrator, in taking charge of the realty and receiving the rents and incomes thereof, was merely the agent for the heirs. It is of no importance whatever that he assumed to transact the business in his capacity as an administrator; he was in fact but an agent. The liability of the administrator, and of his sureties, is, of course, limited to the matters appertaining to his office, and we cannot intermingle with these, transactions with which he had no concern, and in relation to which he had no duty to discharge. We are of opinion also that the Court erred in surcharging the accountant with the notes of John R. French & Co. In the inventory these notes are marked "doubtful." Mr. J. S. Johnson, the only witness examined in relation thereto, states that he and E. W. M. Blaine had been partners, that at the dissolution they divided the notes, etc., that he retained for himself one of the two notes of French & Co., and turned the other over to Blaine, that John R. French & Co., at that time "were not considered real sound," that when he went out of business French could not be compelled to pay, and that although he received his own note after French got his office at Washington, he don't know of any means by which French could have been compelled to pay after the dissolution. The effect of this evidence was, we think, to shift the burden of proof upon the exceptants. It is said, “French is alive and within reach;" if so, it was rather the duty of the exceptants than the accountants under all the circumstances of this case to avail themselves of his evidence. The seventh assignment is therefore sustained. The remaining assignments are without merit and are dismissed. The decree is therefore reversed, and the record is remitted to the Orphans' Court of Erie County for further proceedings in accordance with this opinion, the costs of the several appeals to be paid by the appellees respectively. Opinion by CLARK, J. A. B. W. A writ of error does not lie, under the Act of April 18, 1874, 2 (P. L. 64), unless the refusal of judgment be excepted to. Error to the Common Pleas of Delaware County. Amicable action of assumpsit, by Robert E. Patterson et al., executors of Robert Patterson, deceased, against Charles Roberts, on promis sory notes. Coleman v. Nantz, 13 Smith, 181. Frank v. Colbourn, 9 Id. 381. Wickersham v. Russell, 1 Id. 71. Umberger v. Zearing, 8 S. & R. 163. Russell's App., 13 Norris, 389. Gannon v. Fritz, 29 Smith, 303. Dailey v. Green, 3 Harris, 118–128. Beck's App., 11 WEEKLY NOTES, 31. Even if the application on June 23d was in time, it could not have been acted upon by the Judge because no notice was given to counsel for defendant. The application of July 14th was of course too late. And the fact of the application of June 23d does not appear of record. February 23, 1885. THE COURT. If any, injury has been done to the plaintiffs, we are powerless to grant relief on this writ of error. As the record does not show any exception to the action of the Court in refusing judgment, we cannot assume any was taken. On this writ we cannot review the action of the Court in refusing On March 14, 1884, an affidavit of defence to note an exception. If it was improperly rewas filed, and on April 16, 1884, a supplemen- fused, this is not the way to right the error. tal affidavit. Plaintiff entered a rule for judg-There is nothing here which we can review. It ment for want of a sufficient affidavit of defence. is only where the plaintiff excepts to the deciOn June 2, 1884, the Court discharged the rule. On June 23, 1884 (the 22d being Sunday), the plaintiff's counsel, without notice to defendant or his counsel, presented to the Judge below, at Chambers, an exception to the order discharging the rule. The Court refused to note the exception, on the ground that it was not made in On July 14, 1884, when the next Court was held after the above order, the exception was again presented, in open Court, and the Court again refused to note it, upon the same ground. time. The rules of the Court of Common Pleas of Delaware County provide that, "In every case where a bill of exceptions is tendered, the same shall be . . presented to the Judge within sion of the Court refusing judgment for want of PER CURIAM. W. M. twenty days after the verdict or final disposition Common Pleas-Law. of the case," etc. The plaintiff took this writ, assigning for error, inter alia, the refusal of the Court to note the exception, on June 23d, and on July 14th. Wm. Ward, for plaintiff in error. An exception to an order of this kind need not be immediate, as in the case of an exception to evidence. The computation of time made in accordance with the Act of June 20, 1883 (P. L. 136), demonstrates that the 23d day of June, 1884, was in season under the rule of Court. J. B. Hinkson, for defendant in error. There can be no question as to the power of a Court to make and enforce such a rule. Each Court is the best judge of its own rules, and its construction of them will not be reversed unless it is palpably erroneous. C. P. No. 1. March 2, 1885. Root v. Clay Commercial Telephone Co. Master and servant-Wages—A servant hired by the year for wages payable monthly may maintain an action for monthly arrears although the year has not expired-Suit by a servant against his master is not such a breach of duty as will justify his discharge. Rule for judgment for want of a sufficient affidavit of defence. This was an appeal from the judgment of a magistrate obtained by plaintiff in a suit for $100, wages alleged to be due him for the month of November, 1884. The plaintiff filed a copy of the following contract executed by the parties: |