Equitable Life Assurance Society v. Chesley. As the final account of the administratrix had not been presented, or passed and approved, the case does not fall within the provisions of section 72 of the act entitled "An act respecting the orphans court and relating to the powers and duties of the ordinary and the orphans courts and surrogates" [Revision of 1898], approved June 14th, 1898. P. L. of 1898 p. 715. Nor does it fall within the provisions of sections 77, 78 and 79 of the said act. But by the provisions of section 80 of said act, it is provided that if an administrator shall neglect to make a final settlement within one year of the time of his administration being granted, a creditor who shall be barred by a decree of the orphans court may present a petition to the orphans court alleging the facts and praying relief. It is further provided that the court may investigate the circumstances and condition of the estate, and if it be made to appear that the delay was unreasonable, the court may, by decree, give the creditor relief against any assets in the hands of the administrator in the nature of the relief which he would be entitled to in case the final account of the administrator had been passed and a refunding bond taken for a legacy or distributive share. The transcript shows that respondent did not make a final settlement within one year from the time of administration granted, and that appellant presented a petition which, as before stated, asserts its status as a creditor of the intestate, although it admits that it had not presented to the administratrix its claim under oath in the manner required by law and had been barred by the decree of the orphans court, and prays relief under the circumstances. By the provisions of section 80, it appears that the relief permitted respects assets in the hands of the administratrix, and it is to be accorded in the nature of relief upon refunding bonds. As the relief accorded by the statute affects the estate in administratrix's hands, it seems to me to follow that a creditor asserting his rights as such by such a petition, although he admits that he has not presented his claim under oath to the administratrix, and has in fact been bound by the decree barring creditors, may question the final account of the administratrix Equitable Life Assurance Society v. Chesley. in respect to any matter which, if the exceptions prove correct, enhances the estate in the hands of the administratrix and permits a claim of the creditor upon the assets in the hands of the administratrix under the provisions of section 80. It follows, in my judgment, that a creditor who has presented such a petition, acquired a status to except to such a final account in respect to any matter which would surcharge that account for his benefit. The appellant, in my judgment, was entitled to exhibit the exceptions which were overruled by the orphans court. As before stated, the items of the administratrix's account which were excepted to were for payments made upon a bond of intestate, secured by mortgage, upon real estate which, upon his death, devolved upon his widow and heirs-at-law. The mortgage having been paid by the widow and heirs-at-law, they claimed and the administratrix admitted that they were entitled to be reimbursed out of the personal property of the intestate in her hands. The theory upon which such payment is supported is that the personal estate of a deceased person is the primary fund for the payment of obligations of such person; that if such obligations are not paid out of the intestate's personal estate, and are paid by the owners of the real estate, the latter may assert a right to remuneration from the personal property of the intestate, and the personal representative of the intestate may remunerate the devisees or heirs-at-law for payments made by them in exoneration of the estate of the intestate from his personal obligations. It is said that a personal representative may not pay out of the personal estate of a decedent in exoneration of property specifically encumbered for the payment of such indebtedness of decedent, to the injury of other creditors having a like interest in the intestate's estate. This is upon the theory that assets should be so marshaled that debts which are secured shall be enforced upon the security, to the exoneration of the fund out of which general creditors may be paid. 2 Wms. Ex. §§ 1442, 1457 et seq. By existing legislation in this state, all debts of decedents may now be charged upon the real estate of which they died seized, Equitable Life Assurance Society v. Chesley. as well as upon the personal property of which they died possessed, if such personal property is insufficient to satisfy them. A mortgage upon real estate imposes upon it the debt secured thereby, and it may be that, upon a timely application, a general creditor may require a particular debt thus secured to be enforced upon the security before it or any part of it may be imposed upon the personal property to the injury of general and unsecured creditors. But the case presented by the transcript not only fails to show that the appellant is in fact a creditor of the deceased, or that it had given notice of the fact that it was such creditor to the administratrix, but contains an admission on the part of appellant that its claim had not been presented under oath, in the manner required by law, and had been barred by the decree against creditors. Under those circumstances, the claim of the appellant was not within the official knowledge of the administratrix when she made the payments which were excepted to. The payments made by the administratrix which were excepted to were made to persons entitled to be paid, and in remuneration of payments made by them upon the indebtedness which was primarily to be paid by the personal estate. The administratrix, if appellant's exceptions are sustained, would be unable to procure reimbursement from the persons to whom she had made payment upon an existing lawful indebtedness. Such payment was made in ignorance of the fact that appellant intended to prosecute the estate for the amount of the indebtedness which it now claims. Under those circumstances, while I agree that under the provisions of section 80 of the act above referred to, an exception can be considered by the court in the case presented, I also agree with the court that the exceptions are unavailable to surcharge the account of the administratrix with the payments made by her upon a valid claim, which payments she cannot recover if the exceptions are sustained. The result is that the decree appealed from was properly made and must be affirmed. Edwards v. Edwards. JULIUS S. EDWARDS et al., appellants, υ. THEODORE, E. EDWARDS, respondent. [Filed July 15th, 1901.] Testator was ninety years of age and exhibited a mental decline, accelerated by his wife's death. Previous to making his will he had executed others, making almost an equal distribution among his sons. Testator and one of his sons had been in business, and in the former will the gift to such son was conditioned that he cancel a bond due him by testator. Three days before the last will was executed, testator signed a paper directing all unsettled accounts between him and such son, after his death, to be referred to arbitrators, waiving limitations. Testator's children, except such son, were not with him when the last will was executed, and under his direction it was concealed from them. By such will an equal distribution of the estate was made, but the portion of such son was to be in addition to the amount due him by testator.-Held sufficient, in view of testator's mental condition, to warrant the setting aside of such will for undue influence of such son. On appeal from a decree of the orphans court of Cumberland county admitting to probate a will purporting to have been made by Steen Edwards. Mr. Robert S. Schiller, Mr. James J. Reeves and Mr. David J. Pancoast, proctors for the appellants. Mr. James S. Ware, proctor for the respondent. REED, VICE-ORDINARY. Steen Edwards died April 24th, 1900. On March 20th preceding his death the will in question was executed. By it he left his property to his eight children, all sons. Five of them filed a caveat in the surrogate's office and now prosecute this appeal. Edwards v. Edwards. The grounds of attack are mental incapacity of the testator and undue influence exerted upon him by his son Theodore E. At the date of the making of the will the testator was a very old man-ninety years of age. For a period preceding his death, reaching back several months, he had exhibited a progressive mental decline. The death of his wife on the 26th of the preceding December had accelerated this deterioration. He was by habit and affection strongly attached to her, and her death worried and perplexed him, and increased his confusion of thought. The evidence is plenary that events and words made but a transient impression upon his brain. He failed to recognize his own children. He would ask the same question over and over again, after repeated answers. He thought his wife was still living. The testimony of his housekeeper and others not interested in the result of this litigation, shows beyond question that the general mental condition of the testator at the time he signed this will was one of great confusion of ideas, of inability to think consecutively and of forgetfulness of his surroundings. Even Theodore E. admits that after his wife's death the testator did not know where he was or what had happened. It is true that he filled up and signed checks as late as February 24th, but this seems to have been merely mechanical, for his son Valdemar says, and I have no doubt truly, that he dictated the written portions of those checks. Valdemar's testimony tallies with that of the collector for the gas company, who tells of the unsuccessful attempts of the testator, when unaided, to prepare a check for the amount of his gas bill. His family physician says that he was not capable of testamentary disposition after the death of his wife. His conversation with him was confined, it is true, to professional inquiries concerning his symptoms, but the testator's answers to those inquiries were calculated to impress the physician with a low opinion of the testator's mental condition. His testimony is that he was afflicted with the confusion and slowness and inability of thought which accompanies very old age, coupled with physical infirmities. The two witnesses mainly relied upon by the respondent to show that the testator had testamentary capacity are Dr. Ware, who did not attend him as physician, but talked to him as an |