McClay v. Hanna et al.

*MARCH TERM, 1799. McClay v. Hanna et al. Appeal. An appeal from an orphans’ court dismissed, because it did not appear that a definitive decree had been pronounced. When and how an executor shall be charged with property' conveyed to him on a secret trust, queers ? This was an appeal from the Orphans’ Court of Dauphin county, under the following circumstances : John Harris, by his will, dated the 25th of May 1790, proved 2d of August 1791, bequeathed all his personal estate to his sons, David, Robert and James, and his daughters, Mary McClay and Mary Hanna, to be equally divided between them. He also ordered his executors to sell all his lands, not otherwise disposed of by his will, and divide the proceeds as aforesaid. He directed his executors to settle their accounts in the orphans’ court, in one year after his decease, and continue to settle an account annually, until the estate was finally settled. In January 1795, a citation was issued at the request of William McClay, one of the executors of John Harris, against David Harris, Robert Harris, John Andrew Hanna, Joseph Work and John McClay, the other executors, to appear at the next orphans’ court for Dauphin county, to make a full disclosure of all effects and estate of the deceased which had come to their hands, possession or knowledge, and settle and abide the order and judgment of the court in the premises. The cause came to a hearing in the orphans’ court, in September 1795 ; when a motion was made by McClay’s counsel, that Robert Harris and John A. Hanna should answer on oath, to a charge of having received money for the sale of sundry lots, which had been conveyed to them by the testator, by absolute deed, on a secret trust to be accountable for the proceeds of the sales ; and that they should bring the said proceeds into their administration account, and charge themselves therewith. The Court determined: — 1st. That the said Harris and Hanna, should not be obliged to answer on their oath to the said charge: and 2d. That the *1611 P-ainti® should ’’-not be allowed to produce evidence, to substantiate the truth of his charge against the said John A. Hanna ; but that the account of the said Harris and Hanna, as then exhibited to the court, should be received and passed. The plaintiff appealed from this judgment; and the cause came up on the appeal. After argument, by W. Tilghmcm and Dallas, for the appellant; and by Ingersoll, for the appellees, [MAJORITY] The Court dismissed the appeal, because it did not appear, that the orphans’ court had pronounced a definitive decree.