ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Hoch's Estate.

The Fiduciaries Act of 1917 provides that debts of a decedent shall remain a lien on his real estate for one year only after his decease, unless within such period an action for the recovery thereof be brought: Section 15 (a), P. L. 476.

If, therefore, the proceeds from the sale of real estate are to be treated as real estate, the lien of such debts where creditors have not brought suit within the limited time is lost, and such creditors may not participate in the fund. If, on the contrary, the fund is personalty, no question of lien arises, and all creditors, save and except those that are preferred under section 15 (a) of the act, will share pro rata. The matter has been exhaustively argued and comprehensive briefs submitted.

On the one hand, it is contended that where, as here, there is an unequivocal direction to sell, the real estate becomes personalty as of the date of the death of testator, and that, therefore, all claims, unless barred by the statute of limitations, are, so to speak, seated on the fund, and must be paid prior to legacies, citing McWilliams's Appeal, 117 Pa. 111; Mustin's Estate, 194 Pa. 437, and Middleby's Estate, 249 Pa. 203.

On the other hand, it is argued that the purpose of the sale has failed, because the legatees can get nothing, and that, therefore, although a sale in fact has been made, the change in the character of the property is of form and not of substance; in short, being purposeless, lien claimants, and they alone, and solely because of the preservation of their lien, must be paid first. In support of this position counsel cites Bispham on Equity (8th ed.), § 315; Worsley's Estate, 4 Dist. R. 177; Rudy's Estate, 185 Pa. 359; Luffberry's Appeal, 125 Pa. 513; Yerkes v. Yerkes, 200 Pa. 419; Reed's Estate, 237 Pa. 125, and other cases of similar import.

While the point made by the exceptants is novel and the case an unusual one, happily we are not without a decision of our own court directly in point: Gibb's Estate, 17 Dist. R. 366. In that case the will provided: "I direct that all my personal and real estate, of whatsoever kind and wheresoever located, be sold and the proceeds be divided among my brothers and sisters, share and share alike." One of the sisters filed a petition for a partition; the other parties in interest answered, assenting thereto, and an inquest was awarded. It was held that the proceeding on the part of the residuary legatees was to be treated as an election to regard the land as real estate, a right which they undoubtedly possessed, subject in its exercise, however, to rights of creditors; and that a creditor whose claim had been allowed and who had received a dividend from personalty, could not be prejudiced by such action. Quoad this creditor's claim, the following extract from the opinion is pertinent: "In the present case, decedent died Jan. 20, 1905, the partition proceedings were instituted Jan. 26, 1907, and the present petition filed Feb. 27, 1907; the petitioner would, therefore, ordinarily have no standing, as, under the Act of June 14, 1901, P. L. 562, his debt remained a lien for two years only, were it not that, so far at least as he and all other unpaid creditors are concerned, the proceeds arising from the sale in partition are to be treated as personal property and are to be so distributed.

Hoch's Estate.

This is a direct recognition of the principle that, where a sale is directed in so many words and the proceeds are bequeathed, the claims of creditors are paramount, and are in no way affected by the lien timelimit, for the very good reason that the element of lien is non-existent.

The proposition is startling that, because debts will consume the estate and the legatees get nothing, a direction to convert is ineffective. Of course, it cannot be denied that, where a sale is directed for a specific purpose and the purpose fails, so that the fund passes either to others or under the intestate law, an actual conversion is without legal effect. Such reason does not apply where there are claims of creditors to be considered, because a gift is subordinate to a debt, and, while testator may by will enlarge the rights of creditors, he cannot in any way curtail them. In the present case, because of the direction to convert, it would have been useless to sell or attempt to sell for the payment of debts, and the law does not encourage vain and useless proceedings. An examination of the authorities (hereinbefore recited) shows that they are all cases where charitable bequests fell or legacies lapsed, and not cases where the rights of creditors were to be considered.

The general question of equitable conversion is treated at great length in the dissenting opinion in Painter v. Painter, 220 Pa. 82, and the following extract from what was said by Mr. Justice Stewart (concurred in by Justices Brown and Potter) is apropos: "But what is meant by failure of purpose or failure of object? Both by text-writers and in the adjudicated cases these terms are used interchangeably, and each may be regarded as the other's equivalent. We can, perhaps, turn to no authoritative definition of either, yet an examination of the cases will show a fixed and definite meaning which has never been departed from. This much may be safely affirmed, that in every adjudication where failure of purpose or object has been allowed to defeat a positive direction to sell, failure was held to mean failure in the gift itself by lapse or other certain avoidance, the payment of which was the object and purpose of the direction. In no case has the qualification been applied where the gift had become effective by the vesting in the donee."

If exceptants' contention is sound, legatees would take to the exclusion of creditors who have not preserved their lien; this, however, would not be a failure of purpose; on the contrary, it would be the very opposite. And we would have the singular anomaly of a sale to carry out the purpose advanced as an argument to show failure of purpose.

The action of the auditing judge in allowing all creditors to participate pro rata must be upheld, and these exceptions dismissed.

The other exceptions relate to the auditing judge's ruling that an alleged creditor at present absent from the country and inaccessible should have his share set aside in order that he may ultimately have his day in court. Nothing advanced by counsel has convinced us that this is not a proper exercise of a legal discretion.

All exceptions are accordingly dismissed, and the account is confirmed absolutely.

Court of Common Pleas of Lancaster County

Zercher, Admr. of Eidemiller v. Eidemiller (No. 2).

Judgment Power of attorney to satisfy-Death of plaintiff—Receipt. Where the plaintiff gave the defendant a written acknowledgment of payment and power of attorney to satisfy a judgment, but when it was presented to the Prothonotary he refused to satisfy the judgment because the plaintiff had died in the meantime, the court will decree satisfaction in the absence of sufficient testimony to contradict the acknowledgment of payment or show indebtedness of the plaintiff at the time.

Rule for decree to satisfy judgment. September Term, 1914, No. 26.

H. Frank Eshleman and John A. Coyle, for rule.

John M. Groff and B. F. Davis, contra.

January 17, 1920. Opinion by LANDIS, P. J.

From the petition, it appears that Andrew Eidemiller, who was the father of the defendant, brought a suit in assumpsit against him on August 14, 1914, to the above number and term. On February 2, 1915, the suit was called for trial, and, by agreement of the parties, judgment was entered in open court against the defendant for $575.00, conditioned that the plaintiff should surrender over to the defendant a paper dated July 5, 1909, by which the plaintiff and his wife were permitted to occupy for their lives a property described in a deed dated July 6, 1909, given by them to the defendant, and also with the condition that the plaintiff might remove his personal property without molestation. On April 3, 1916, the following paper was executed by the plaintiff in the judgment:

[merged small][ocr errors][merged small][merged small]

I, Andrew Eidemiller, plaintiff in the above judgment, do hereby appoint Dr. A. E. Leaman, Prothonotary, as my attorney to enter satisfaction on the records, as the judgment has been paid in full.

I acknowledge the same as my act and deed and desire it
to be recorded as such.

Witness my hand and seal this 3'd day of April, 1916.
ANDREW EIDEMILLER. [SEAL]

[blocks in formation]

Zercher, Admr. of Eidemiller v. Eidemiller (No. 2).

On August 21, 1916, Andrew Eidemiller died intestate, and letters of administration on his estate were, on September 5, 1917, granted to A. J. Zercher. A suggestion of the death of the plaintiff was then made, and the name of the administrator was substituted. The defendant then filed with the Prothonotary the above paper; but, inasmuch as the plaintiff was dead, the Prothonotary refused to enter the satisfaction.

The defendant alleges that the paper was signed in pursuance of a settlement duly made, and he also asserts that he is the sole heir of Andrew Eidemiller, and that he has paid all costs due on the judgment. The defendant has certain real estate, which he has sold to one, Chester Eckman; but this judgment is a lien upon it, and Eckman has refused to pay the contract price until it is satisfied. He, therefore, asks the Court to decree satisfaction of the same.

It was shown by depositions taken in the case that Andrew Eidemiller and his son came to the office of 'Squire Hudson and asked him to fix up a paper for a judgment to be released. The 'Squire thereupon drew up the paper set forth above, and Andrew Eidemiller signed it. It was then handed to the defendant. Andrew Eidemiller died a little over four months after its delivery.

On the part of the plaintiff, it was shown that, about the time the judgment was entered, Andrew Eidemiller and his wife moved to the Reese property, and, when it was sold, to what was called the Groff house. On account of the condition of the latter house, Mrs. Eberly, a daughter, took her mother away from that place to her own home. The administrator, who is a son of Mrs. Eidemiller, testified that he called on Andrew Eidemiller occasionally; that the latter had no means that he knew of; that Andrew complained to him in regard to getting along, but that he, the witness, "did not know anything about the transaction, of course"; that at one time Andrew said that he had no fuel and nothing to eat, and thereupon the witness sent him bread and a ton of coal. He speaks of him as living on the charity of his family. After having lived with his son for a short time, he moved to the County Home, where he died. His funeral expenses were paid by his son, and those of Mrs. Eidemiller (who died about a year after her husband), and also the costs of keeping her at a home in Harrisburg, were paid by the witness. As these latter expenses were incurred after the death of Andrew Eidemiller, it follows that no claim can be made for them out of his estate, even if he has an estate.

The law is, that a receipt is prima facie evidence of payment, and, while it is not conclusive, and is subject to explanation, it can only be set aside for weighty reasons. Fraud, accident or mistake is sufficient to avoid such an instrument; but in such a case the cause of avoidance must clearly appear. Such receipts are placed in the same category as other written instruments. Guhl v. Frank, 20 LANC. LAW REVIEW 249; Rhoads' Estate, 189 Pa. 460. Even when parol testimony tending to impeach such a receipt is evenly balanced by contradictory evidence of like character, the receipt must control and cannot be set aside. McDonald v. Piper, 193 Pa. 312; Flynn v. Hurlock, 194 Pa.

Zercher, Admr. of Eidemiller v. Eidemiller (No. 2).

462; Ogden v. Traction Co., 202 Pa. 480. In Stanton v. The Lancaster Gas Light & Fuel Co., 21 LANC. LAW REVIEW 204, we decided that, "when a receipt is in full and represents a balance found to be due on accounts between the parties covering a considerable period of time, it should only be set aside for weighty reasons," and that the unsupported evidence of the plaintiff is insufficient. See, also, Flaccus v. Wood, 260 Pa. 161.

While it may seem hard from the plaintiff's point of view that he should have been compelled, not only to contribute towards the decedent's estate, but also to bear the burden of maintaining and burying his widow; yet we see no way in which he can be legally relieved. The small amounts given to Andrew Eidemiller in the shape of fuel and bread were evidently furnished purely on the basis of charity, and not becaue of any contractual relation. Believing that Andrew was in sore need, he was willing to minister to his wants. Even conceding it to be a debt, at the time the receipt was signed, it was not shown that Andrew had any other obligations outstanding. He had a right to give away his property if he saw fit, and the gift could not be impeached, except for indebtedness then existing. On this basis, even, the testimony does not warrant a court in setting aside the receipt, except so far as this small sum is concerned. It seems to us that little good would be accomplished in referring the facts to a jury to pass upon, and needless expense, without hope of return, would be incurred by the administrator; for, from the facts as they now appear, the court would be obliged, under the law, to give binding instructions.

For these reasons, we are obliged to make this rule absolute.
Rule made absolute.

Court af Common Pleas of Berks County

Strasser v. Seaman.

Practice, C. P.- Trespass- Appeal from alderman's judgment-Affidavit of defense raising questions of law.

In an action of trespass brought into the Common Pleas on appeal from the judgment of an alderman, judgment will be entered for the defendant on an affidavit of defence raising a question of law where the transcript clearly shows that the action was based on the defendant's negligent driving of an automobile.

Trespass.

Affidavit of defense raising questions of law.

March Term, 1918, No. 34.

H. F. Heinly, for plaintiff.

H. J. Dunn, for defendant.

October 26, 1918. Opinion by WAGNER, J.

« ÀÌÀü°è¼Ó »