29 Pa. 237 | Pa. | 1857
The opinion of the court was delivered,
We agree with the auditor and the Orphans’ Court, that there is no necessity for selling the real estate of Dyer Loomis, deceased.
The testator died on the 16th of January, 1842; and as no steps have been taken by the creditors to charge the real estate in the hands of the devisees with the payment of the decedent’s debts, it is no longer liable to the lien of such debts.
That the executor has paid the debts, or a part of them, out of his own money, in no degree extends the lien upon the real estate, or impairs the right of the devisees to hold it discharged of the lien through lapse of time: McCurdy’s Appeal, 5 W. & S. 397.
The legacies have never been paid by the executor, nor did it appear that they had ever been demanded. When they are demanded, and when the devisees refuse permission to the executor to apply the rents, issues, and profits in his hands, arising from the real estate to their payment, there may be some occasion for the real estate, to be sold; but at present there is none. And the same reason applies to the compensation of the executor, and the expenses of administration; for the use of the real estate since Hiram’s majority, is clearly sufficient to pay legacies, expenses, and compensation.
Under the evidence, wre cannot say that the Orphans’ Court erred in decreeing that the executor should pay the costs.
Decree affirmed at the appellant’s cost.
