266 Pa. 135 | Pa. | 1920
Opinion by
Ivor M. Lowrie, administrator d. b. n. c. t. a. of the estate of Mary Morris, deceased, is the plaintiff and the Dollars Savings & Trust Co., administrator of the estate of Wm. J. Morris, deceased, with notice to Anna Morris, widow, are the defendants and appellants.
The opinion of President Judge Shafer succinctly states the case as follows: “The action is scire facias on a mortgage, and the parties have agreed upon a case stated in the nature of a special verdict, from which it appears that one William J. Morris gave to his mother, Mary Morris, in 1891, a mortgage for |6,500, which fell
In Shoenberger’s Executors v. Lancaster Savings Institution, 28 Pa. 459, 465, Mr. Justice Lowkie well states our law, upon the subject in hand, thus: “The office of executor in Pennsylvania is, of course, very analogous to the office of executor in England, but their duties are not identical; and we always run the risk of error, if we take counsel from English analogies and overlook the instructions of our own statutes. At death, a man’s estate really passes into the hands of the law for administration, as much when he dies testate as when intestate; except that, in the former case, he fixes the law of its distribution after payment of debts, and usually appoints the persons who are to execute his will. But even this appointment is only provisional, and requires to be approved by the law before it is complete; and therefore the title to the office of executor is derived rather from the law than from the will.”
No Pennsylvania case has been cited to us, and we find none, where, as here, the acts of one who never qualified as executor were sustained to the prejudice of those entitled to the assets of the estate; for an interesting discussion of this subject see Fidelity & Casualty Co. v. Freeman, 54 L. R. A. 680, 683, par. 3; also see Jones on Mortgages, 7th ed., vol. II, 550, sec. 959; and, as to the obligation of a mortgagor to ascertain the authority of those to whom he pays, see Woodruff v. Mutschler, 34 N. J. Eq. 33.
Nothing appears in the facts of the present case to work an equitable estoppel against plaintiff.
The assignments of error are overruled and the judgment is affirmed.