Appeal of Lex

97 Pa. 289 | Pa. | 1881

Mr. Justice Mercur

delivered the opinion of the 'court, May 2d 1881.

This appeal is by the executor of Edward H. Bonsall, from a decree commanding him to pay to the appellee a sum of money previously decreed to the Jatter by said court.

The money in contention arises from a legacy bequeathed by said Bonsall to his son Jeremiah. On an audit of the appellant’s account, on the 18th June 1880, before the auditing judge, the appellee claimed this legacy by virtue of an assignment from Jere miah Bonsall, dated 22d April 1879. It also appeared from the evidence there given that on the 13th May 1879, Dixey issued an attachment-execution out of the Court.of Common Pleas No. 3, of said county, against the appellant, executor, as garnishee of Jeremiah Bonsall, on a judgment against the latter. The attachment had been duly served, and was then pending. Although this attachment was given in evidence, yet it is averred in the appellant’s history of the.case that the plaintiff therein did not appear at the audit, either in person or by counsel, and deny the right of the Orphans’ Court to adjudicate upon his right under the attachment, and claim that the jurisdiction of the Common Pleas had attached before the account of the executor was filed. The auditing judge awarded the legacy to the appellee, and the adjudication was confirmed by the Orphans’ Court. No appeal has been taken therefrom. The appellant now interposes that attachment still pending against him as a sufficient reason for not paying the money to the appellee. This involves a consideration of the effect to be given to the decree of distribution made by the Orphans’ Court. It is a court of record. It had jurisdiction over the executor and the fund: Commonwealth v. Judges, 4 Barr 301; Culbertson’s Appeal, 26 P. F. Smith 145. Its decree is conclusive unless appealed from within the time specified by Act of Assembly. It had an undoubted right to distribute the fund in the hands of the executor. It is objected that under the proceedings on the attachment the Common Pleas ousted the Orphans’ Court from its jurisdiction over this fund ; and by Dixey’s declining to appear at the audit he is not affected by its decree. Both these positions are unsound. The proceedings in the Common Pleas did not divest the jurisdiction of the Orphans’ Court to make distribution. Any right to the fund asserted or decided in the Common Pleas must still be presented and passed upon by the Orphans’ Court. It is not only over the person of the claimants that the Orphans’ Court has jurisdiction, but also over the fund. It alone can order its distribution. This necessarily gives it power to hear and determine all questions arising in the distribution. To decide not only between conflicting claims, but if there bo none” such, then who are entitled to the fund. The omission of any one there to present his claim does not impair the force and effect of the decree giving the fund to another. The presumption is, that due notice of the audit was given. It is not denied that Dixey had notice. It is substantially admitted that he had. If he had not, his remedy would be by application to open the decree, and not to resist its execution. We think the alleged apprehensions of the appellant, that the decree of the Orphans’ Court will not fully protect him, are groundless.

Order affirmed, and appeal dismissed at the costs of the appellant.