4 Pa. Super. 615 | Pa. Super. Ct. | 1897
Opinion by
On the 18th of February, 1888, the administrators of James Cooper filed their account in the orphans’ court, showing personal assets amounting to $3,807.15 and credits for sundry payments to creditors amounting to $3,388.17, leaving a balance in the hands of the accountants of $423.99. This account was confirmed March 19, 1888. The appellants do not seek to go back of the confirmation of this account. They seem to admit that the confirmation of the said account by the orphans’ court protects the administrators as to the payments made prior to that time. They seek a distribution of the balance in the hands of the accountants according to law. The distribution of this balance was referred to an auditor who finds, in addition to the facts already stated, that at the time of the confirmation of the account there were unpaid debts of the estate considerably in excess of the amount of the balance; that as to a judgment of Pitman, administrator of Andrew Fisher, deceased, for purchase money of a farm purchased from the said administrator and a
Under the facts, as found by the auditor, which are practically undisputed, the two claimants for the fund are Mrs. Sarah Cooper $395, and the executor of Daniel Logan, one third of $3,986, which equals $1,328.66, and distributes the net balance of $571.47, after deducting the costs of audit, to these two claims pro rata.
Upon a review of the findings and conclusions of the auditor upon exception in the orphans’ court, the auditor was directed by the court to deduct the sum of $355 interest paid on the Fisher judgment, now belonging to Mrs. Allen, by Mrs. Cooper, before the fund should be called upon for contribution to the claim made by Logan as cosurety of Cooper, and that, after such deduction, distribution should be made to Logan, on the basis of $3,986, the full amount paid by him on the McDonald judgment, and of $40, the balance paid by Mrs. Cooper in interest on the Fisher judgment assigned to Mrs. Allen. As to the first of these directions we think the court was in error. Mrs. Cooper, so far as the payment of interest by her was concerned, stood
To what extent is Logan a creditor of the estate of James Cooper, his co-obligor on the -McDonald bond? There were three sureties. Judgment was obtained against one for the entire amount which was paid by him. He has a right to call upon each of his cosureties for contribution to the extent of one third of the amount paid. Pitman, the third of the cosureties, is dead. There is no evidence of any kind that his estate is insolvent or in any way unable to pay the full amount of the contribution which it is liable to make to Logan’s estate. Cooper’s estate is, therefore, liable to Logan’s estate for the one third of the amount which was paid by Logan to Mrs. McDonald. So far as the personal estate of Cooper is concerned, it is unable to make contribution to that extent. How then is the contribution which it can make to be 'secured and enforced ? There can be no doubt that, if Mrs. McDonald were pursuing Cooper’s estate, she could prove her claim for and be entitled to a dividend upon the whole amount due her, but Logan, the cosurety, paid her the full amount of the claim. He is, therefore, entitled to subrogation to the ownership of the security held by Mrs. McDonald, namely, the bond given by the administrator and three sureties, and the judgment, which was recovered thereon for Mrs. McDonald’s use against Logan. As to the general doctrine of subrogation, see Croft v. Moore, 9 Watts, 451, and Mosier’s Appeal, 56 Pa. 76. In the latter it is said: “ So, where one of several joint sureties has paid'the whole debt, he will be entitled to the judgment to enforce contribution by his cosureties.” In Pless’ Estate, 69 Pa. 272, it was expressly ruled that one of two joint sureties who had paid the entire debt was entitled to a dividend upon the full amount of the debt out of the estate of his cosurety which was insolvent, up to the extent of the one half of what he had paid; Mr. Justice Read, in a learned opinion upon the subject, saying, “In
Inasmuch, however, as Mrs. Cooper was not entitled to a preference as to any portion of the amount of interest paid by her, the assignments of error are sustained, the decree of the court below is reversed, and the record is remitted with directions to make distribution of the balance in the hands of the administrators, as hereinbefore specified; costs to be paid by the appellees.