
    Couch, Appellant, v. Thompson.
    
      Appeals — Equity—Findings of fact.
    
    1. The findings of fact of a chancellor, based on evidence and approved by the court below, will be accepted as correct by the Supreme Court.
    
      Decedents’ estates — Claims for property — Executors and administrators — Agreement as to distribution.
    
    2. Ordinarily the only party who can compel the surrender of personal property which had belonged to a decedent, or recover its value from one wrongfully retaining it, is the executor or administrator of the estate, but a different conclusion might be reached in cases where those entitled to- such property, by the will or under the intestate laws, have agreed to its distribution without administration, or the statutes of limitation clearly bar the claims of all of decedent’s possible creditors, even though founded on instruments under seal.
    
      Attorneys-at-law' — Misconduct—D'uty to court.
    
    3. In the absence of his- adversary, counsel in a pending case cannot be too careful to avoid even the slightest appearance of endeavoring to influence the court.
    
      Argued April 18, 1928.
    Before Moschzisker, C. J., Frazer, Walling, Simpson, Kephart, Sadler and Schaefer, JJ.
    Appeal, No. 155, Jan. T., 1928, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. T., 1926, No. 12852, dismissing bill in equity, in case of Gertrude T. Couch v. Ann M. Thompson.
    Affirmed.
    Bill to enforce alleged ex maleficio trust. Before Davis, J.
    The opinion of the Supreme Court states the facts.
    Bill dismissed. Plaintiff appealed.
    
      Error assigned, inter alia, was decree, quoting it.
    
      Robert P. Shiek, for appellant.
    
      O. L. Walker, with him Daniel W. Simkins, for appellee.
    May 7, 1928:
   Opinion by

Mr. Justice Simpson,

The bill in equity in this case avers that plaintiff and defendant are sisters, the only heirs and next of kin of their father, who deeded to defendant, for a nominal consideration, a valuable property in fee simple; that at the time of the conveyance their father was well advanced in years, suffering in mind and body, and in great fear of becoming financially embarrassed; that while the grant was “in form a deed of gift, it was not in fact a gift, but was intended_______merely to vest the legal title in......defendant......in trust for...... the grantor [to] maintain and manage the same for him during his lifetime, and after his death to divide and share the value of such property equally” with plaintiff, and was so understood and accepted by defendant, who nevertheless refuses to recognize the trust and claims to be the sole owner of the property. It also avers that plaintiff and defendant are each entitled “to an undivided one half part......of the personal property, in the form of a mortgage, life insurance policies and other securities, of which decedent was possessed at the time of his death; and that the said defendant......has refused to acknowledge the right of your orator to her interest in [such] property, or' to account for her share therein.”

The answer admits the relationship of the parties and the age of their father, but denies the other averments of the bill.

So far as concerns the realty, the trial judge found as facts’ that though the father was seventy-six years of age at the time he executed the deed to defendant, he was then possessed of a strong vitality and had great determination of character, was in full possession of his faculties and aware of what he was doing; that plaintiff was at once notified of the conveyance, but took no step in the matter during the lifetime of the father, which continued for two and a half years thereafter; that she had lived in Colorado for twenty-seven years, had a husband and family of her own, rarely visited her father and never contributed to his support or the upkeep of his home, while defendant lived with him, cared for him and contributed largely to his support and the maintenance of the home; that the grant was intended to be a gift to defendant, and not in trust, and that decedent understood it to be so when he made it, afterwards referred to it as a gift, and with it, as a gift, was perfectly satisfied. The trial judge decided that as plaintiff failed to establish the alleged trust upon which she relied for recovery, her bill should be dismissed, and this conclusion the court in banc approved. There was ample evidence to sustain each of those findings of fact, and we must therefore accept them as correct: Kaufmann’s Est., 281 Pa. 519; Kern v. Smith, 290 Pa. 566. This being so, and the only assignments of error regarding the evidence having reference to the personal prop-. erty and not to the conveyance of the realty, we are obliged to affirm tbe decree dismissing tbe bill as to tbe latter.

Tbe trial judge found against plaintiff as to tbe former also, and tbe court in banc likewise approved this conclusion. It is not necessary, however, to consider tbe assignments of error wbicb relate to it, for no trust is alleged as to it, and tbe creditors, if any there are, have not lost their claims by lapse of time; hence, if defendant is improperly retaining it, tbe only party who can compel its surrender or recover its value is a duly appointed administrator of decedents’ estate: Brown v. Neithammer, 2 Sadler 54. A different question would have arisen if there bad been an agreement of distribution between plaintiff and defendant, or if tbe statute of limitations clearly barred tbe claims of possible creditors, even though founded on instruments under seal: Walworth v. Abel, 52 Pa. 370; McLean’s Executors v. Wade, 53 Pa. 146; Bacon’s Est., 202 Pa. 535, 553; Blodgett’s Est., 254 Pa. 210, 213-214. As to this point, therefore, tbe decree of dismissal was likewise correct.

Reference should be made to one other subject. During tbe trial, in a matter having no connection with tbe conveyance of tbe realty, plaintiff’s counsel said, “I demand tbe production of tbe check books” from wbicb a certain account was prepared by defendant. A colloquy resulted wbicb ended when tbe court said to defendant’s counsel: “You may bring them to me.” This was done without notice to plaintiff’s counsel as to tbe time of their presentation. Tbe latter should have been so apprised; in tbe absence of bis adversary, counsel cannot be too careful to avoid even tbe slightest appearance of endeavoring to influence the court; but since, in tbe present instance, no barm could have resulted from what we are convinced was an unintentional error, we dismiss tbe complaint with a warning to be more careful in tbe future.

Tbe decree is affirmed and tbe appeal dismissed at tbe . cost of appellant.  