23 A.2d 242 | Pa. Super. Ct. | 1941
Argued October 10, 1941 The plaintiffs, as assignees, brought an action of assumpsit to recover the amount alleged to be due on matured stock issued by the defendant building and loan association. After the pleadings were filed the plaintiffs moved for judgment for want of sufficient affidavit of defense. The court granted a rule, which, after argument was made absolute. Judgment was entered and damages assessed in the sum of $1,259.68. *574
The following facts are in substance averred in plaintiffs' statement of claim. Walter H. Fenimore died testate July 9, 1931. In his will he bequeathed the residue of his estate to his wife, Catharine A. Fenimore, and his two sisters, Ida Fenimore, and Ella Fenimore. Among the assets of the estate were ten shares of the seventeenth series of the capital stock of the defendant building and loan association, which were pledged for loans made by the association to the decedent. In due course of time the ten shares of stock matured and the loans were paid. In March 1934, there was a balance of $978 due the estate. On September 16, 1935, the association paid on the matured stock in the seventeenth series ten per cent, or $98, leaving a balance due of $880.
The executors of Walter H. Fenimore filed their account, which was audited and an adjudication was filed in 1932. The defendant association failed to present a claim at the audit. Pursuant to the decree of distribution the executors assigned Fenimore's paid up shares to the residuary legatees.
Catharine A. Fenimore, the widow, died May 22, 1937, first having made her last will. In the adjudication of her estate her one-third interest in the ten shares of the building and loan stock was awarded equally to Gustav Kielmayer, Elizabeth Colton, Elizabeth Miller, and Nicholas Kielmayer.
The defendant, in its affidavit of defense, denied all liability and in its counter-claim and set-off averred that the decedent's estate was indebted to it under an agreement to indemnify the company from all loss, damages, etc., sustained by reason of a mortgage loan it made to Charles Allen. The appellant, in its paper book challenged the jurisdiction of the orphans' court to distribute the ten shares of stock, alleging that it was in possession and control thereof. That position, however, was abandoned at the argument of this appeal. There was left for our consideration the contention that the court erred in holding that the affidavit of defense was *575 insufficient and that the counter-claim did not set forth a valid cause of action.
Section 49 [d] of the Fiduciaries Act of June 7, 1917, P.L. 447, 20 Pa.C.S.A. § 864, provides as follows: "No creditor of a decedent who shall neglect or refuse to present his claim at the audit of the account of the executor or administrator, . . . . . . shall be entitled to receive any share of the assets distributed in pursuance of such audit, . . . . . ."
It is true that at the time of the audit the liability of the estate had not matured as the association had not exhausted available remedies against the original debtor: League IslandCommunity Building and Loan Association v. Doyle,
In Piper's Estate,
This same principle is recognized and upheld in Downing v.Felheim et al.,
In Walbridge's Estate,
Aarons v. Public Service Building Loan Association et al.,
The stock in question having been awarded by the orphans' court to the residuary legatees, these plaintiffs are the absolute owners thereof. The defense raised by the appellant is unavailing. We are in entire accord with the disposition made of this case by the learned court below.
Judgment is affirmed. *577