266 Pa. 321 | Pa. | 1920
Opinion by
In October”, 1906, Henry Tonge and Rae, his wife, brought an action against “The Item Publishing Company,” to recover for injuries to the wife, caused by the negligence of a driver of a wagon, who was delivering a newspaper known as “The Philadelphia Item.” The plaintiffs recovered judgments, but were unable to collect them, either from the Item Publishing Company or the subscribers to its capital stock, against whom they filed a bill for the purpose of compelling payment of their claims: Tonge v. Item Publishing Co., 244 Pa. 417. Subsequently, by decree of this court, entered March 13, 1916, it was held that the judgments were claims to be paid out of the estate of Thomas Fitzgerald, deceased, who died in 1891, because “The Philadelphia Item” was an asset of his estate, and its publication in October, 1906, was conducted by his executors: Fitzgerald’s Estate (No. 1), 252 Pa. 568. There being no funds in the hands of the surviving executor to pay the judgments, this proceeding was instituted to compel the appellees— representatives of legatees and distributees under the will of Thomas Fitzgerald — to make restitution of so much of the moneys, paid them out of his estate, as would be sufficient to satisfy the claims of Tonge and wife. From the refusal of the court to so order they have appealed.
Without regard to the statute of limitations, which the learned court below held was a bar as to all moneys paid by the executors more than six years before the presentation of the petition for an order of restitution, the relief prayed for could not have been granted under the undisputed facts in the case.
The last payment by the executor of Thomas Fitzgerald to a beneficiary under his will was made April
Decree affirmed.