53 Pa. 470 | Pa. | 1867
The opinion of the court was delivered, by
When Thomas Sloan, the executor, in obedience to the order of the Orphans’ Court, gave his bond, with Robert Rogers as his surety, the legatees under the will of Philip Shaff
The other branch of the defence arises out of the following facts: — Contemporaneously with the execution of the bond upon which this suit was brought, Sloan gave a judgment-bond to Robert Rogers, for an equal sum, and with William Baker as his surety. It was given to indemnify Rogers for becoming bound with him in the bond required by the Orphans’ Court. Judgment was entered upon it, an execution was issued, and the money was paid to the sheriff. The Court of Common Pleas, out of which the execution issued, then made the following order: “ March 8th 1847. The defendant, Thomas Sloan, having by the substitution of another bond released the plaintiff from his suretyship, as executor of Philip Shaffner, deceased, that the money in the hands of the sheriff he shall dispose of as follows; — 1st. That he pay into court $867.65, an amount claimed by the plaintiff; 2d. Pay to William Barkman, attorney in fact of Charles Greenawalt and wife (who was one of the legatees) $1386.46; 3d. Pay to Alfred Shaffner (another legatee) $1838.71; 4th. Pay the residue to Thomas Sloan.” This the court below thought amounted to satisfaction of the bond given by Sloan and Rogers in the Orphans’ Court, even if it was not released. It is to be noticed that the money raised by the execution was not paid into the Orphans’ Court and distributed there. It was not even paid into the Common Pleas. It is further to be observed that neither Jacob Shaffner nor his children had any notice of the appropriation which the Court of Common Pleas directed. They were no parties to it, and they were not bound by it. It is remarkable also, that more than half the entire sum was retained by Thomas
The condition of the bond that Sloan and Rogers gave in the Orphans’ Court was, that Sloan should well and truly discharge his trust as executor, and pay all money that might come to his hands, according to the directions of the will of his testator. But his duty under the will was not performed until he paid to Jacob Shaffner the legacy given him, and paid to Jacob’s children their legacies. What occurred in the Common Pleas was no compliance with this condition of the bond. It was therefore no satisfaction. Sloan was bound to see that the money was properly applied, and neither he nor Rogers can escape by taking the money themselves, especially when they took it without notice to the legatees.
There is, then, no defence to the plaintiff’s claim in this part of the case, and none in any part; and it was error to charge the jury that the plaintiff could not recover. As the ease ajDpeared, he was entitled to a verdict. The judgment of Rogers v. Sloan and Baker, and the subsequent proceedings thereon, were quite immaterial.
Judgment reversed, and a venire de novo awarded.