206 Pa. 234 | Pa. | 1903
Opinion by
Andrew M. Moore died January 26, 1898. By his last will and testament, dated January 21, 1898, and probated February 10, 1898, he appointed the Fidelity Trust Company, Joseph F. Sinnott and Walton Pennewill his executors and trustees, to whom letters testamentary were granted by the register of wills of Philadelphia county. After making certain specific bequests, the testator directed that all the residue of his estate, real and personal, should be divided into three equal parts or shares and the one third part thereof he bequeathed to his executors and trustees to pay the net income and interest thereon to his son, Albert H. Moore, for life, with clauses creating a spendthrift trust, and after the death of his son Albert, the net income of said one third of his estate was to be paid to his sons, Henry G. Moore and George M. Moore, or the survivor of them, for life in the same manner as the testator had directed said income to be paid to his son, Albert, during his life. At the death of the survivor of his three sons the said one third of his residuary estate was bequeathed to his executors and trustees “ with full power and authority to found and maintain such charitable or educational institution or institutions, in my name, as they in their discretion, may deem wise,
Ellwanger & Barry, the plaintiffs in this action, obtained a judgment against Albert H. Moore in the court of common pleas No. 2 of Philadelphia county, on which, January 27,1902, they issued an attachment execution, and served the executors and trustees under the will of Andrew M. Moore, deceased, as garnishees. Interrogatories were filed and in answers thereto, filed June 12,1902, the garnishees give the dates of the will, of its probate and of the death of the testator; refer to the eleventh clause of the will as defining the interest which the testator’s sons take thereunder; admit that the garnishees are the trustees under the will of the deceased, that Albert H. Moore is named therein, and that the three sons are the heirs at law of the deceased and are all living; and set forth that the amount of the principal of the estate of Andrew M. Moore now held by the garnishees as trustees under the terms of the will exceeds $1,000,000. The plaintiffs entered a rule “ to show cause why judgment should not be entered in favor of the plaintiffs and against the .... trustees under the will of Andrew M. Moore, deceased, garnishees, on their answers to interrogatories for the sum of $1,757.64, with interest from November 14,1899, to be levied of the interest of the defendant in the estate of said decedent.” This rule was marked absolute and a fieri facias was issued commanding the sheriff “that of the defendant’s undivided vested interest in remainder in the estate of Andrew M. Moore, deceased, in the hands, possession or control of the Fidelity Trust Company, Joseph F. Sinnott and
This attachment was issued pursuant to the provisions of the Act of April 13,1843, Purd. Dig. 836, pi. 51, supplemented by the Act of April 10,1849, Purd. Dig. 837, pi. 52. The former act provides that any interest which any person may have in the real or personal estate of any decedent, by will or otherwise, which is subject to foreign attachment by the act of July 27, 1842, shall be subject to be attached and levied upon in satisfaction of any judgment in the same manner as debts due are made subject to execution by the act of June 16, 1836; “ and the same rights in all respects which the debtor may have, and no greater in any respect whatever, are hereby placed within the power of the attaching creditor.” The act of 1849 authorizes the issuing of the attachment “ at any time after the interest which any person or persons may have in the real or personal estate of any decedent, shall have accrued by reason of the death of such decedent.”
It is conceded that the spendthrift trust in favor of Albert H. Moore, created by his father’s will, is not subject to this attachment. And we' need not concern ourselves in this controversy with the question what, if any, interest in the residuary estate vested in Albert H. Moore at his father’s death and was subject to the attachment. The judgment of the court below against the garnishees did not define the interest or determine that Albert H. Moore had any interest in the residuary estate. Whatever it was, the enjoyment and possession of it were postponed until after the death of the last survivor of the testator’s three sons. The right acquired to his interest, therefore, by purchase, attachment or otherwise, would be merely the right to demand and receive of his father’s executors his distributive share of the estate on final settlement.
The judgment as entered by the plaintiffs against the garnishees was not moulded so as to show the money or effects of the defendant in the hands of the trustees nor the quantity of his interest in the residuary estate of the testator. Neither did the answers to the interrogatories disclose this information. They simply gave the amount of the principal of the estate that was held by the trustees under the will. In this condition of the record the plaintiffs having by their attachment succeeded to the rights of the defendant against his interest in decedent’s estate to the extent of their claim must enforce their judgment against that interest, the amount of which can only be determined by the orphans’ court: Maurer v. Kerper, 102 Pa. 444. That court has the exclusive jurisdiction to ascertain the amount of the estates of decedents, and to order their distribution among those entitled, creditors as well as legatees and distributees: Hammett’s Appeal, 83 Pa. 392; Maurer v. Kerper, supra; Yocum v. Commercial Nat. Bank, 195 Pa. 411. Hence on the final settlement and distribution of the estate of Andrew M. Moore by the orphans’ court, ,the plaintiffs may have determined the interest of Albert H. Moore, the defendant, therein, and enforce their rights to said interest acquired by this attachment proceeding.
The order discharging the rule to strike off the writ of fieri facias is reversed and the rule is now made absolute and the