
    In re Estate of Peter Meyers, deceased. Appeal of Mary E. Meyers and Rufus E. Meyers, Administrators of Dennis Meyers, deceased, and William H. Koontz, Administrator of Cyrus Meyers, deceased.
    
      Practice, O. 0. — Conclusiveness of auditor's report — Promissori/ notes— Decedents' estates.
    
    An auditor’s findings on sufficient evidence, confirmed by the court below, that two notes given to the decedent by his sons had been destroyed without the consent of all the distributees, will not- be reversed by the Supreme Court.
    Argued Oct. 14, 1896.
    Appeal, No. 169, Oct. T., 1896, by Mary E. Meyers et al., from decree of O. C. Somerset Co., dismissing exceptions to auditor’s report.
    Before Sterrett, C. J., Green, Williams, McCollum, Mitchell, Dean and Fell, JJ.
    Affirmed.
    Exceptions to report of J. L. Pugh, Esq., auditor.
    The facts appear by the material portion of the opinion of Longenecker, P. J., which is as follows :
    The only other items of charge relate to the two notes alleged to have been held by the decedent against his two sons, Cyras Meyers for $500 or $600 and Dennis Meyers for $1,000. The accountant does not seem to know much about these notes, but Dr. W. H. Meyers swears positively to their existence, and says that within a few days after the death of Peter Meyers, before an inventory of the personal estate was taken, when he and his brothers, including Cyrus and Dennis, examined their father’s papers, in the absence of their sisters, the two notes mentioned were found among them. He explains the kind of notes and the considerations for them, and says they were then and there destroyed at his suggestion. He says, “I burned these notes. I found there was nothing charged against me or any one else, and I said, ‘boys, lets make it all even,’ and I burned them.” This is the only reason assigned for the strange proceeding. He further says the two sisters were not present, and knew nothing of the matter until within a year or so since.
    The auditor holds the estate of Cyrus Meyers and Dennis Meyers must be charged with these notes in the final adjustment of the estate, but declines to pass on the question whether interest shall be charged thereon, saying, “that is left an open question for consideration when the estate is finally settled up and equal distribution made; but he does decide that the estate of Dennis Meyers shall be charged with the note of $1,000, and the estate of Cyrus Meyers shall be charged with the note of $600.”
    The exceptions filed to this report were not brought before the auditor for his consideration, as they should have been, but we assume that, consistently with the views contained in his report, he would have overruled them.
    In answer to the exceptions filed by counsel for the administrators of Cyrus Meyers and Dennis Meyers it may be said, the facts were for the auditor, and we cannot say that the evidence does not sustain his conclusions. The fact that the notes did not appear in the inventory comes to nothing if it is believed that they were destroyed before it was taken; and if the sisters learned of their existence and destruction only within a year or so, the fact that several audits have taken place at which they were not mentioned, cannot estop them, though it might so affect others.
    And now, September 20, 1895, in conformity with the foregoing views, all the exceptions to the report of the auditor are overruled and his report is confirmed.
    January 4, 1897:
    
      Error assigned was decree dismissing exceptions to auditor’s report.
    
      H. S. Endsley and W. H. Koontz, for appellants.
    
      Valentine Hay, with him J. R. Scott and A. J. Colborn, for appellee.
   Opinion bv

Mr. Justice Fell,

This appeal was argued with No. 168, supra, in which the opinion of the court has been filed. The question raised before the auditor was one of fact, and we are not convinced that there was not sufficient competent evidence to sustain his finding.

The decree is affirmed at the cost of the appellee.  