Elwyn's Appeal

67 Pa. 367 | Pa. | 1871

The opinion of the court was delivered,

by Agnew, J.

We think this case is governed by the Act of 13th June 1836, relating to lunatics. The 20th and 21st sections direct that the committee^shall have the management of the real and personal estate of the lunatic, and shall from time to time apply so much of the income thereof as shall be necessary to the payment of his just debts and engagements, and the support and maintenance of himself and his family, and the education of his minor children; and if the income be not sufficient, shall under the directions of the court, apply so much of the principal of his personal estate as shall be necessary for the purpose. The distribution of the surplus of $161.22 therefore did no more than the law allows.

It may be admitted that the .half-pay of an officer of the government is not liable to be taken by creditors under any form of process — by levy, sale, attachment or sequestration. The authorities cited are to this effect. Being intended as a means of subsistence, it will not be permitted to be diverted. Like the provision of a parent in the hands of a trustee for a minor or lunatic child, it cannot be intercepted by others. But when the half-pay has reached the beneficiary, and has lost its distinctive character, and when as money it is in a proper sense, as here, a distributable fund lying in the hands of the law, it is to be governed by the direction of the law. Consequently a surplus not needed for the prime purpose of subsistence (as is found here) may be applied with the sanction of the court, which has the custody of the lunatic, to the payment of his debts. There is nothing which would prevent the lunatic himself from so doing, were he in his sound mind. His future pay may not be alienated by assignment, as it certainly cannot be intercepted by creditors in invitum, but money in possession may be disposed of at his will. Why then should the court be disabled, after a sufficient provision made for him, from ordering payment of a surplus to a just debt? The sum allowed for the support of his sister, who is not of his family, but for whom hé himself had provided, would be liable to a similar objection, and yet it was not excepted to by the committee. Of course we are to presume from the finding of the auditor and the approval of the court,'that these sums were in excess of the provision necessary for the lunatic; otherwise the court looking to the source of the income as half-pay, and as a provision made by the parens patriae for the officer’s maintenance, would not allow its diversion to the prejudice of the lunatic. The same reasons dispose of the claim set up under the $300 law. The allowance to the creditor here is the act of the court by the hands of its committee; and not a seizure by adverse process. The decree of the Court of Common Pleas is affirmed and the costs ordered to be paid out of the estate.