Estate of Bennett

132 Pa. 201 | Pa. | 1890

Opinion,

Mr. Chief Justice Paxson:

The appellants’ complaint is that the court below erred “ in refusing to distribute the whole fund in the hands of the accountant among those entitled to it, according to law,” and Hammett’s App., 83 Pa. 392, was cited as sustaining their view.

The court set aside the sum of $9,000 in the hands of the accountant to meet a claim of H. L. Gaw & Co. against the estate. Suit had been brought upon this claim in the Common Pleas; two trials had been had, and the cause is still pending. Counsel for the plaintiffs in that suit appeared before the auditing judge, and asked that they should be allowed to have their claim determined by a jury in the suit then pending, and that, of the balance in' the hands of the accountant, a sufficient sum should be set aside to await the result of that suit. This the Orphans’ Court allowed, and set aside a portion of the fund as before stated. In this we see no error. Had the court proceeded to hear the claim, the plaintiffs would have been entitled to an issue, had it been demanded in proper time and under proper circumstances. We can therefore see no good reason why the question of fact should not be determined in the action pending in the Common Pleas. It will not cause any additional delay.

Hammett’s Appeal is not in conflict with this view. There, no claim was made in the Orphan’s Court; the alleged creditors did not appear there, and it was held there was nothing before that court to warrant the setting .aside of the whole fund to meet claims which had never been presented there. Moreover, that case expressly rules that the Orphans’ Court has a discretion in such instances. It was said by Mr. Justice Agnew : “ Thus it is evident that a proceeding in a common-law court to establish a claim, while it may be a reasonable ground for the exercise of the sound discretion of the Orphans’ Court in suspending proceedings in distribution for a reasonable time and to a reasonable part of the estate, necessary to satisfy the demands of creditors, according to tbe thirty-ninth and fortieth sections of tlie act of 24th February, 1834, .... confers no jurisdiction on the former court to withdraw the fund from the power or control of the Orphans’ Court. Of necessity, as we have seen, the latter court must proceed to distribute the fund, and cannot be hindered or delayed, by actions pending in other courts, beyond a time wbicb its own exercise of discretion may determine to be necessary.”

The difference between that case and tbe one in hand, briefly stated, is this: In Hammett’s Case tbe Orphans’ Court withdrew tlie whole of a large fund entirely from tlie heirs and legatees to meet alleged claims of creditors who had never appeared before that court. This we held was not the exercise of a sound discretion. In tbe present case, tbe court set aside a portion of tlie fund at the request of a creditor, who had brought suit in tbe Common Pleas, whose case had been twice tried, who was prosecuting bis claim with diligence, and wbo appeared in the Orphans’ Court, and asked it to set aside a part of tbe fund in tbe bands of tbe accountant to meet his claim. We regard tbe action of the court below as a reasonable and proper exercise of their discretion.

The decree is affirmed, and the appeal dismissed, at the costs of the appellants.