In re Wilson's Estate

| Pa. | Apr 4, 1845

Gibson, C. J.

— The objection to the allowance of credits in the distribution account, which might have been allowed in the administration account, would be well founded if they were claimed for debts contracted by the testator. Such could be settled according to the statute and practice only by being properly vouched, advertised, and passed by the register before confirmation by the Orphans’ Court. True it is, that the practice has been to credit the expenses of administration in the administration account, and they may properly be so credited still; but where they have been omitted, it certainly is not necessary to incur the delay and expense of a new account for so small a matter. The object of publishing notice that an account, with the vouchers, is deposited in the register’s office for examination, is to give notice to creditors as well as distributees; but when the creditors have been satisfied, and the residue of the estate is before the court fbr distribution according to the intestate laws or the will, it is enough that the parties immediately interested have an opportunity to be heard. The Orphans’ Court is. master of the whole subject, and the register has nothing to do with it. Formerly the incidental expenses could be allowed only in the administration account, for there was but one settlement, and the distributive shares were recoverable by action; but now, when they are recoverable by a proceeding in the Orphans’ Court, it cannot produce either inconvenience or confusion to deduct them from the balance of the administration account in the first instance.

For the same reason, the auditor properly deducted from it the balance found due to the appellant’s co-executor at the settlement of his separate administration account. This balance was a charge on the assets in the appellant’s hands, for which he was liable, and he had a right to retain for it. Why then should it not be brought into the distribution account ? Because, say the appellees, exceptions taken by them to the co-executor’s account are still pending. But why have they pressed for distribution here before they have had their exceptions disposed of there ? An estate is not ripe for distribution before all charges on it have come out of it. These exceptions have been depending for nearly ten years; and as no step has been taken in prosecution of them, the auditor might well consider them to be virtually abandoned, and treat the balance found due to the co-executor by the register as prima facie evidence of a debt still due by the estate; the more so, because, if it were not paid out of the assets in the appellant’s hands, sufficient to discharge it might not be received from the Pemberton estate. But by instituting the present proceedings, founded as it is on an assumption that there are no out-standing claims, the appellees have precluded themselves from bringing into it their exceptions to a different account as an element of litigation. The proper time and place to press them is at the final settlement of that account in the Orphans’ Court; and they have a right, perhaps, to do so yet, but not to prevent the appellant from retaining enough to meet the event.

The auditor likewise properly took into view payments by the appellant’s co-executor to the distributees, without which distribution according to the will could not be effected. This is too plain for further remarks.

Again, Mr. Corson’s demand of William Wilson’s share, as his committee, was properly disregarded. The testator devised his estate to his executors in trust, among other things, to invest the share in stock, or put it at interest, and apply the income to the lunatic’s use, or pay him the whole or part of the principal at their discretion. By what law, then, could the appointment of a committee take this trust out of the hands in which the testator had placed it, and vest it in one who can exercise no greater or other right than could, were he sane, be exercised by the lunatic himself ? The estate was devised to the trustees qua executors; and if the distinction were material, it would consequently be clear that the appellant succeeded to the trust vested in his wife by succeeding to her executorship, with which it was indivisibly joined. But whether the appellant or his wife be the trustee, it is certain that Mr. Corson is not; and it is enough to prevent him from getting the direction of the lunatic’s estate, that there is a trustee either in esse or in posse. The testator had a right to appoint his own trustee; and if the office were vacant, the proper course would be to fdl it by appointment, for which the lunatic’s committee, whose business it is to call the trustee to account, would be the most improper person that could be selected.

Finally, the auditor properly disregarded the claim of Doctor Anderson, as the administrator de bonis non of Mrs. Saulneer. By her marriage settlement, she granted to her trustee all the real and personal estate to which she was then entitled, or which she, or her husband in her right, should thereafter acquire, for her use till the solemnization of the intended marriage, and afterwards to her separate use during the coverture, with power to alien or appoint; and for want of alienation or appointment, for the use of her children the fruit of the marriage. She died without having executed the power, and left a son to whom her share has since been paid. The settlement was executed in the lifetime of the testator, and consequently before any title had vested in her; whence an argument that the settlement was inoperative. It is certain that though a contingent limitation by will, after the death of the testator, or by deed, is a legitimate subject of grant, even at law, yet the hope or expectation of succeeding to the property of another by descent or devise is not so. But it is equally certain that such an interest may be bound by a settlement in equity. The point is settled by Beckley v. Newman, and Hobson v. Trevor, 2 P. Wms. 181, as well as by other cases in which the doctrine was-assumed. Indeed, it is no more than the familiar principle, that he who executes a conveyance, on valuable consideration, purporting to pass a title before it is in him, will be bound to make it good whenever he acquires it. Such a conveyance is liberally interpreted as an agreement. Mrs. Saulneer’s estate, which accrued to her subsequently, was therefore bound by her settlement; and how could any part of it go to her administrator? Though she had power to part with it, she had no power to charge it; and no part of it could be claimed for her creditors if she had any. The administrator, therefore, could claim nothing but the unpaid balance of the income from the estate, and not even in a proceeding like the present.' But it does not appear that there was any, and if there were, it is not the thing that the administrator is claiming. He claims the share limited to the son of Mrs. Saulneer at her death.

We therefore direct that the report of the last auditor be confirmed, and that distribution be made in accordance with it.

There is also an appeal from another order of the court, which may be disposed of here. Upon a suggestion that Mr. Humphreys was wasting the trust-estate, he was ordered to give security as executor in $5000, and other security in $5000 as trustee; and there is consequently an evident error in separating the office of executor from that of trustee.

We direct, therefore, that so much of the order as directs the appellant to give security as trustee be reversed, that the recognisance be so far discharged, and that the order be affirmed for the residue.

So decreed.