ESTATE OF CHRISTIAN NAGLE, DECEASED.
APPEAL BY PRISCILLA HESS EX AL. PROM THE ORPHANS’ COURT OP NORTHAMPTON COUNTY.
Argued March 13, 1800
Decided March 31, 1890.
[To be reported.]
1. In the absence of evidence to the contrary, the maker of negotiable paper is presumed to have issued it clear of all blemishes, erasures and alterations; and the burden of showing that a blemished instrument was defective when issued, is upon the holder, notwithstanding the presumptions in favor of innocence, or the fact that the original parties to it are dead.
2. When it is apparent upon the face of a note or bank check that the paper, at the place where the date or the amount of it is written, is so defaced as to remove the sizing and a part of the surface, and the date or amount is afterward written therein, it is unnecessary that the paper should exhibit traces of previous matter written beneath, to bring the instrument within the rule.
3. The mere fact that material words of an instrument appear to have been written on paper where it previously had been blurred or defaced, might not import an alteration; but, where the words so written were *32crowded or cramped so as to fit the same space, the manifest appearance is that of an altered instrument, and the burden is on the holder to explain it.
Before Paxson, C. J., Sterrett, Green, Clark and Williams, JJ.
No. 72 January Term 1890, Sup. Ct.; court below, number and term not given.
On March 4, 1889, an account in the estate of Christian Nagle, deceased, stated by Mary L. Nagle, executrix of James E. Nagle, deceased, who was executor of the will of Christian Nagle, was presented to the court below and confirmed nisi. Subsequently, the court appointed Mr. P. O. Pvans auditor to examine, and, if necessary, re-state the account, and to report distribution.
Among the items of credit claimed in the account was the following: “ 1888, November 19, credit for check of Christian Nagle, dated September 19, 1888, and prior to his death, but not presented to the First National Bank of Easton until after his death, in favor of James E. Nagle, for $1,422.00.”
This credit was objected to before the auditor by certain legatees under the will of Christian Nagle, whereupon the accountant, after proving the genuineness of the signature of Christian Nagle, offered in evidence the following check:
No.- Easton, Pa., September 19, 1888.
First National Bank.
Pay to James E. Nagle........................or bearer, the sum of four teenhundred^...................dollars.
$1422.00. Christian Nagle.
Endorsed: James E. Nagle.
The admission of the check was objected to by the legatees “ for the reason that it appeared on its face to have been altered in a material part, to wit: in the amount, and that it appeared that part of the words in said amount had been written over an erasure, and that the figure “ 1 ” in“ 1422 ” was of a darker shade than the other figures, and until the same was explained by the holder of the check, it was not admissible.
The auditor reserved the question of the admissibility of the *33offer, until all the testimony should be taken. The testimony of several witnesses having been heard, the auditor subsequently filed a report, which after stating the manner in which the question arose, and citing Simpson v. Stackhouse, 9 Pa. 186; Paine v. Edsell, 19 Pa. 178; Clark v. Eckstein, 22 Pa. 507; Miller v. Reed, 27 Pa. 244; Hepler v. Savings Bank, 97 Pa. 420; Dean v. Warnock, 98 Pa. 566, proceeded:
The preliminary question, therefore, for your auditor to determine, is whether there is an alteration in the check in dispute or not. This is a question, if doubtful, as said in Clark v. Eckstein, for the jury, and, in this case, of course, for your auditor, to determine from an examination of the instrument.
Mr. Myers called as witnesses two gentlemen of long expe- • rience in the use of the microscope, Dr. Amos Seip and George W. Stout, Esq., to testify as to whether or not there had been an alteration.
Mr. Mutchler objected to this testimony as “incompetent and irrelevant to the subject matter in dispute before the auditor ; that the question, as to whether the check is an altered cheek or not, must be determined by the auditor himself from an inspection of it.” The testimony was taken subject to the objection of Mr. Mutchler. Your auditor admits the testimony and considers it as an aid to himself in determining whether there was an alteration or not.
The microscope reveals nothing to the witnesses mentioned, that it does not reveal to your auditor. It is evident from an inspection even by the naked eye, that where a part of the body of the check is written there had been an erasure; that some part of it is blurred; and to the naked eye the “ 1 ” in “ 1422 ” appears of a darker shade, and possibfy of a different color than the figures 422. But under the microscope, all the figures are plainly written with ink of the same color. As Dr. Seip, on cross-examination, says, “ there is more ink in the figure ‘ 1 ’ than in the other figures, and consequently it looks darker.” Mr. Stout says “ the ‘ 1 ’ and the ‘ dot ’ are purple, but of a deeper color; made with a different ink, or more put on.” And on cross-examination, he says: “ I account for the difference in color of those figures by the fact that there is more of this substance (metalic) in the dark ones.” From this testimony, competent only as an aid to your auditor in determining the *34question of as to whether there was an alteration or not, and from an inspection made by himself, both with and without the microscope, your auditor is satisfied that there is no evidence of any alterations so far as the figures 1422 are concerned.
Is there any evidence of an alteration in the body of the check, in the words “ the sum of four teenhundredy2^ ” ?
Mr. Meyers asked Dr. Seip the following question: “Without reference to the condition of the check as it appears to the naked eye, state whether you discovered erasures under the glass ? ” Dr. Seip answered: “ I think so;. that is my impression; more particularly in the second half of the word “ fourteen,” etc. “ The letter ‘ h ’ in hundred, is very much blurred, and shows that the ink ran considerably; the letter ‘ n ’, in ‘ hun ’, is in the same condition; the word ‘ dred ’ is heavier and darker than ‘ the sum of four,’ ” etc. “ The greatest erasure is between the ‘ four ’ and ‘ dred.’ ” On cross-examination, Dr. Seip saj^s: “ Where the letters ‘ teen ’ are written, there is evidence of erasure, and where the letter ‘ n ’ is, in ‘ hundred.’ ”
. George W. Stout, Esq., after examining the cheek under the microscope, says : “ The ‘ teen ’ and ‘ hundred ’ and the tail of the ‘ d ’ seem to be darker than the others; ‘ teen ’ and ‘ h ’ appear very much blurred, the same as it would be when you write over what has been erased or scratched. The blur appears in the whole line of the ‘ t,’ and the ‘ ee,’ ‘ n,’ and ‘ h,’ very much.” He further says: “I have no doubt that this was written over an erasure. Ink always spreads in writing over an erasure. I think the paper had been erased before the words were written; the sizing had been scratched.”
Your auditor quotes this testimony to show that from a careful examination of the check in dispute by two disinterested witnesses, called by the exceptants, there is not a word as to any alteration apparent to the naked eye or revealed by the microscope. The witnesses saj”- that they can see that the paper had been scratched, and that the ink blurred, and that it appeared to have been written over an erasure. What had been erased they do not pretend to say. It may have been a blot of ink, or the wrong word may have been written and immediately scratched out, and the ink thus blurred. It certainly does not appear, either to the naked eye or from an examination under *35the microscope, that it was written over any particular amount previously written. In Clark v. Eckstein, 22 Pa. 507, an alteration appeared on a note as to the date from 1850 to 1851, in different ink; some scratching alongside .the 0 in 1850 or the 1 in 1851, and a blacker line on the 1; as also a blot of ink on the same spot; also, that the paper had been scratched by some instrument. The note was read to the jury, notwithstanding an objection, and without any evidence explaining the alleged alteration or who made it, and the Supreme Court say: ‘Yn the present case, the last figure in the date of the note upon which the suit was brought is blotted, and there appears at its side, an erasure; but whether it was the date or the blot that was attempted to be removed was properly left to the jury as a question of fact.”
Your auditor therefore says, as a question of fact, that there is no apparent alteration of the check in dispute, and admits the check in evidence, taking into consideration, as he does, all the peculiar circumstances of this particular case; being a check written by one unaccustomed to the writing of checks, as is evident by his writing “ ^20 ” dollars for twenty-two dollars; given by a father, an old man of considerable means, less than a month before his death, to his only son, whom he also made the executor of his will; written by the son, with the same colored ink, the son dying about a month after his father; the figures corresponding to the amount (marginal) in the body of the check, showing no erasure whatever; with nothing suspicious about a single circumstance connected with the case, excepting the fact that a part of the body of the check appears to have been written over an erasure causing the ink to spread or blur.
The accountant is therefore allowed the credit, as claimed in her account, for check of Christian Nagle to James E. Nagle, dated September 19, 1888, for fourteen hundred and twenty-two dollars, being the check in dispute.
Exceptions to the report of the auditor making distribution in accordance with his finding, having been filed by Priscilla Hess and others, legatees of Christian Nagle, deceased, after argument thereof, on October 7, 1889, the following opinion was filed, Schuyler, P. J.:
*36The burden, of the present exceptions is that in admitting this check to a share in the distribution, the auditor committed plain error. The defence to the check is, that as originally drawn it was for the sum of four hundred and twenty-two dollars ; that the word “ hundred,” in the body of the check as originally written, was erased, and “ teen hundred ” written over the erasure ; that the figure “ 1 ” was inserted between the “ $ ” mark and the figure “ 4 ” in the margin, to make the amount in figures correspond with the changed amount in the body of the check; that these alterations were made by the payee without the consent of the drawer, and that they are apparent on inspection.
There are two modes of establishing the existence of an alteration affecting the integrity of commercial paper; one by inspection alone, and the other by inspection and extraneous evidence combined. These two modes, whilst both may be pursued in the same trial, are essentially distinct, and care should be taken not to confound them. Where the alteration is apparent on the face of the instrument, there the burden is cast upon the holder to satisfactorily explain the alteration, failing in which the instrument stands condemned; and whether or not the alteration is apparent is a question of fact for the court. Where, however, the alleged alteration is not apparent on the face of the instrument, no matter what circumstances of mere suspicion are thus apparent, the question of alteration or no alteration is a question of fact for the jury, to be tried as ' any other question of fact, with the presumption on the side of innocence ; at least we have been pointed to no decision to "the contrary, and know of none.
The rule giving to an alteration apparent on the face of the instrument the effect of changing the onus probandi, it has been said is founded in reason and necessity. This may well be, but the rule is not universally accepted, and we can easily conceive of cases where its application might work great hardship. We think, therefore, that the rule should be held strictly, and particularly so in a case circumstanced like the present. Here the drawer of the check and the payee are both dead, and there is consequently “ no party to be put to the duty of explanation:” Heffner v. Wenrich, 32 Pa. 425. They were plain, uneducated farmers, who in all probability had never *37heard of the rule under consideration. Moreover, they were father and son, and even if they knew of the rule, they would naturally be less careful to have the check free from blemishes than they would otherwise have been. Unless, therefore, the facts bring this case clearly within the rule, we think it ought not to be applied.
What are the facts, — that is to say, what are the facts disclosed by an inspection of the check, for in logical order this is the first inquiry ? The check is the ordinary printed blank filled in, all the filling in being done by the same hand, which was manifestly not that of the drawer, or of an expert penman ; in the line containing the words and figures “ the sum of four teenhundred^2^,” the paper where the letters “ teen hun ” are written appears to have been scraped, but there is nothing to indicate that anything had been erased to make room for these syllables; in writing the “ teen hun ” the ink has spread, whilst in the other parts of the check there is no spreading of the ink; the last “ d ” in “ hundred ” touches the first “ 2 ” in “ x|%,” and the letters “ ndred ” in the same word have a crowded appearance ; in the sum “ $1422.00,” the figure “ 1 ” nearly touches the “ $ ” mark, and has a darker shade than its companions, but the difference in shade is no greater than is the same difference in the signature of the drawer of the check between the words “Christian” and “ Nagle.” There is nothing more in the check calling for notice.
The question is whether the foregoing facts are sufficient to cast upon the holder of the check the duty of accounting for its appearance, as a necessary condition precedent to its admission in evidence. In this connection, it is proper to observe that the rule above referred to in relation to the onus probandi is confined to cases where the blemish, of whatever nature, upon the face of the instrument, amounts to an alteration of the instrument in a material part. Some loose expressions are to be found scattered here and there in the books which vaguely intimate a broader application of the rule, but we have been pointed to no decision in support of the broader application, and we think that none can be found. Now, an alteration is defined to be “ an act done upon the instrument, by which its meaning or language is changed; ” 1 Greenl. Ev., § 566. Where *38does it appear, on the face of this check that it ever conveyed a different meaning, or spoke a different language from what it does to-day? It is said that the letters “teenhun” are written over an erasure. If that is so, the check does not disclose it, and at this stage of the inquiry we can look no further. All that the check shows is that the face of the paper, where these letters appear, had been scraped before the letters were written. It is admitted, that not the slightest trace of any previous matter, either written or printed, can be discovered at this point. To erase, is “ to rub or scrape out, as letters or characters, written, engraved or printed ; to efface, as to erase a word or a name:” Webster. The scratching or scraping of the surface of blank paper is not an erasure, in any accepted sense of that term. We think, therefore, that the learned auditor did right in receiving the check in evidence.
In so holding we are not offering a premium for dexterity in forgery. The law does not presume forgery in other cases outside of the rule we have been considering. The court is still open to the exceptants to make good their charges in the ordinary way, with the burden of proof where it naturally belongs. They have embraced the opportunity thus offered by examining as witnesses two experienced microseopis'ts, but we agree with the learned auditor that these witnesses have revealed nothing that is not apparent without the aid of the microscope. Christian Nagle, the maker of the check, died October 15,1888, and the check was not presented at the bank for payment until a day or two after that date. This, together with the fact that the check was filled in by the payee, was the only additional fact proved before the auditor to throw suspicion upon the check, and as an offset to it, it was shown that the payee lived eight and a half miles from the bank.
As stated above, the theory of the exceptants is, that the check was originally drawn for four hundred dollars, and that it was fraudulently altered to fourteen hundred dollars, and it cannot be denied that the ingenuity of the very able counsel for the exceptants has given to this theory a plausible look ; but after all it is but theoiy, with no better foundation than conjecture and suspicion. The theory may be entirely correct, and then again it may be utterly false. There is noth*39ing on which the mind can rest with any sense of security. In this respect the present case resembles Milligan’s App., 97 Pa. 525, where an unsuccessful attempt was made, under circumstances fully as suspicious as any that we have here, to surcharge the accountant with some bonds, on the theory that she had either embezzled or stolen them. In that case Mr. Justice Paxson uses the following language : “ The only ground upon which this surcharge can be sustained is that the accountant embezzled or stole the bonds. This is a serious charge. It ought not to be made lightly, nor without clear evidence to sustain it. When a person is charged with crime, it matters little what the form of the charge may be, or on which side of the court. It is true the result is different, but the difference is only in degree. It may be more agreeable to be branded as a thief in the Orphans’ Court, or Common Pleas, than in the Quarter Sessions. Wherever the charge is made, its gravity requires a careful consideration of the evidence upon which it is founded......' Conceding there to be circumstances of suspicion surrounding the case, there is not enough to sustain the verdict of a jury against the accountant, on either the civil or criminal side of the court.” The learned auditor no doubt took the same charitable view of the present case in awarding payment of the check in controversy, and we cannot say with any confidence that he committed error in so doing.
—A decree having been entered dismissing the exceptions and confirming the report, the exceptants took this appeal, specifying for error the dismissal of the several exceptions and the confirmation of the auditor’s report.
Mr. O. S. Meyers, for the appellants:
1. To hold that where words, in a material part of a written instrument, are written over an erasure and are crowded, and where the color of the ink in one of the figures is of a darker shade than the others, there is no apparent alteration, is contrary to every rule of common judgment and of evidence. The proposition that, because the erasing was so complete that the paper did not disclose what was originally written there, and therefore it did not appear that the instrument ever spoke a different language from what it does to-day, there is no apparent alteration, is monstrous, and would afford appalling oppor*40trinities to perpetrate fraud. Confounding the principles that govern a case like Milligan’s App., 97 Pa. 525, with those applicable to one like this, the court seems to hold that the objection to the check involves a charge of forgery, and therefore the burden is on the objector to make it good. Such a charge is not necessarily involved, for the alteration may be capable of explanation; but the policy of the law casts the burden of making the explanation on the holder.
2. The term “ apparent alteration ” has a more comprehensive meaning than the restricted one given it by the court below. »It necessarily includes any erasures, blemishes, incongruities, crowding of words, and other appearances indicating that the instrument has been tampered with: 2 Parsons on BiUs, 575-578; 1 Greenl. Ev., §§ 564, 565; 3 Phillips on Ev., 154, 156, 606, 607; Byles on Bills, 316 ; 1 Am. & Eng. Encyc. of Law, 514; Starkie on Ev., 455; Simpson v. Stackhouse, 9 Pa. 186; Heffner v. Wenrich, 32 Pa. 423; Marshall v. Gougler, 10 S. & R. 169; Taylor on Ev., §§ 1548, 1819; United States v. Linn, 1 How. 104; Knight v. Clements, 8 A. & E. 215; Jackson v. Osborn, 2 Wend. 555 (20 Am. Dec. 649); Tilton v. Clinton, 7 Barb. 564; Craighead v. McLoney, 99 Pa. 215; Zeigler v. Sprenkle, 7 W. & S. 180; Garrard v. Haddan, 67 Pa. 83; 2 Phillips on Ev., 482; Taylor v. Mosely, 6 C. & P. 429; Acker v. Ledyard, 8 Barb. 514; Jordan v. Stewart, 23 Pa. 244; Leeds Bank v. Walker, L. R. 11 Q. B. 90; Hutchins v. Scott, 2 M. & W. 816; 2 Parsons on Cont., 224, note; Hurlstone on Bonds, 3 Law Lib., 4th series, 120; Herrick v. Malin, 22 Wend. 394.
Mr. William Mutchler, for the appellee, was not heard.
In the brief filed, counsel cited: Beaman v. Russel, 20 Vt. 205 (49 Am. Dec. 775); Craighead v. McLoney, 99 Pa. 215; Kountz v. Kennedy, 63 Pa. 190; Clark v. Eckstein, 22 Pa. 507; Robinson v. Myers, 67 Pa. 16; 1 Am. & Eng. Encyc. of Law, 497; Bank v. Hall, 1 Halst. 215.
Opinion,
Mr. Justice Clark:
When the check which is the subject of controversy in this case was presented to the auditor for adjudication, it was objected to, upon the ground that there was an alteration in the *41amount; that the alteration was apparent and manifest upon the face of the check, and that the burden was upon the holder, before the check could be received in evidence, by competent proofs to explain it, and to show, either that the alteration was made before its execution, or afterwards, with the consent of the drawer. The auditor, however, was of opinion that the check did not exhibit on its face any material alteration; admitting that where the alleged alterations appeared the face of the paper had been scratched or scraped, he was not able to discover that the amount of the check had been written over any other amount previously written;. that is to say, although the check was manifestly blurred and disfigured at the place of the alleged erasure, yet there was not, upon the face of the paper, any apparent alteration of the amount. “ The witnesses testify,” says the auditor, “ that they can see that the paper had been scratched, and that the ink blurred and appeared to have been written over an erasure; what had been erased they do not pretend to say; it may have been a blot of ink, or the wrong word may have been written and immediately scratched out, and thus the ink blurred. It certainly does not appear, either to the naked eye, or from an examination under the microscope, that it was written over any particular amount previously written.” The check was therefore received in evidence, and was, without any explanation, allowed in the distribution. The learned judge of the court below, in passing upon the report of the auditor, says: “ Now, an alteration is defined to be an act done upon the instrument by which its meaning or language is changed: 1 Greenl. Ev., § 566. Where does it appear on the face of this check that it ever conveyed a different meaning, or spoke a different language, from what it does to-day ? It is said that the letters ‘ teenhun ’ are written over an erasure. If that is so, the check does not disclose it, and at this stage of the inquiry we can look no further. All that the check shows is that the face of the paper, where those letters appear, had been scraped before the letters were written. It is admitted that not the slightest trace of any previous matter, either written or printed, can be discovered at this point. To erase is ‘ to rub or scrape out; as letters or characters, written, engraved, or printed: ’ Webster. The scratching or scraping of the surface of blank paper is not an erasure, in *42any accepted sense of that term. We think, therefore, that the learned auditor did right in receiving the check in evidence.”
If the rule be as stated by the learned judge, the success in completely obliterating all traces of the words of the genuine instrument, although there may be other evidences of alteration apparent, shifts the burden of proof from the party offering the paper in evidence to the party alleging the alteration. This would, in effect, we think, be to offer a premium upon the forger’s skill. If there be apparent proof on the face of the paper that an alteration has been made in the place where the amount or the date of a check or note should be written, it must be supposed, prima facie, that it was the amount or the date which is altered, and that the alteration is to the prejudice of the party executing it. If this were not so, it would, in all cases, fall upon the drawer of the check or the maker of the note, in the first instance, to show what Avas the matter erased, before the holder is required to explain what is otherwise manifest, auz., that the instrument has been altered in. a material part.
At the argument of the cause, in this court, the check was produced and submitted to our inspection; photographic copies Avere also provided, and we have thus been afforded the same opportunities for examination of the paper as the auditor or the court below. The mere fact that some of the words of a Avriting appear to have been written upon paper where it has previously been rubbed or scraped, and that the ink has run so as to create a blurred appearance, that, and no more, might not, perhaps, import any alteration, although this occurred in a material part; but the fact that an erasure has been made, where the surface of the paper has been scraped, may become apparent from various facts exhibited on the face of the paper itself; the writing upon the erased surface may be with a different pen, in different ink, or in a different hand, or the words may be crowded and cramped to fit the space originally occupied. The mere roughness of the surface is not likely to affect the general style and spacing of the words, but when certain words are erased, and others are inserted in lieu thereof, in a space either too small or too large to receive them, the alteration is usually inserted in such a cramped or crowded manner, or in such ex*43tended form, as to plainly indicate the alteration. Simple faults in writing, blots, or blemishes, are, in most cases, thus readily distinguishable from an alteration in the body of the instrument, whether made fraudulently or in good faith. That this check was scraped or rubbed, as if to erase something, is patent and plain; indeed, that is not disputed. The sizing and a portion of the surface of the paper have been removed; at this particular place the paper is so thin that, holding it to the light, one may almost see through it; whereas, the other portions of the paper are quite perfect; the marks of an instrument with a sharp edge are plainly visible. The allegation is that the check, originally, was for $422, (although written four hundred dollars,) and was raised to $1,422. It is plain that the words, “the sum of four.....are unaltered. They are undoubtedly just as they were originally written. It is very remarkable that where the writer had plenty of room, and to spare, in the line devoted to the amount, and he started out apparently to occupy it, that he should stop at the place of the erasure, in the middle of a word, and from that point cramp and crowd the words or letters, as if the space was limited. It will be observed, also, that the crowding of the letters, and contracting of the spaces, is confined to the place where the paper was scraped; that the space covered by the alleged erasure is just sufficient to contain the word “ hundred ” with the usual spacing, and the letters “dred” appear to be written upon the space between the “^¶” and the word preceding, where no-erasure was made; that after the word “four” there is apparent a remnant of the matter erased, and that the letters “teen” appear to have had no connection with “four” until after the erasure, the hair-line finish of the “r” having been formed as if that letter was the last one of the word. It is also a singular coincidence that the figure “ 1,” in the figures on the corner, denoting the amount of the check, is very close to the ($) dollar mark, and is of a much darker shade or color than either of the other figures, which are alleged to have been made at the same time, with the same ink, and the same pen. The general appearance is that of an altered paper. The alteration, we think, is manifest and apparent at the first glance, and a critical and careful examination confirms this impression. The alteration may have been made at the time, with the lcnowl*44edge and approval of the parties; but, as the writing, including the alteration, is in the hand of the payee, it is the duty of the holder to explain it. It is unimportant that both parties to the transaction are dead; an explanation is thereby rendered more difficult, perhaps, but the security and safe transmission of negotiable paper demand that the rule so well established in our decisions shall be maintained. The maker of negotiable paper is always presumed, in the absence of evidence, to have issued it clear of all blemishes, erasures, and alterations, and the burden of showing that it was defective when issued is upon the holder : Heffner v. Wenrich, 32 Pa. 423. As a general rule, the law presumes in favor of innocence, but this presumption does not extend to the alteration of negotiable instruments. “He who takes a blemished bill or note, takes it with all its imperfections on its head. He becomes sponsor for them, and, though he act honestly, he acts negligently. But the law presumes against negligence as a degree of culpability; and it presumes that he had not only satisfied himself of the innocence of the transaction, but that he had provided himself with the proofs of it, to meet a scrutiny he had reason to expect.” Simpson v. Stackhouse, 9 Pa. 186. To the same effect are Paine v. Edsell, 19 Pa. 178; Clark v. Eckstein, 22 Pa. 507; Miller v. Reed, 27 Pa. 244; and many other cases.
The distinction as to the province of the court and of the jury, excepting as it may involve the question of the burden of proof, is rendered unimportant, by the fact that the auditor in the first instance, and the learned judge afterwards, performed the functions of both court and jury. The check wa$ nob qnly received in evidence, but it was allowed in the distribution, without any explanation whatever. We are of opinion that the decree in this case cannot be sustained.
The decree of the Orphans’ Court is therefore reversed, and the record remitted for further proceedings; the appellee to pay the costs of this appeal.