254 Pa. 328 | Pa. | 1916
Opinion by
At the adjudication of an account filed by the ancillary executors of Joseph Middleby, deceased, in the Orphans’ Court of Berks County, the Timken-Detroit Axle Company, a corporation under the laws of Michigan, “pre
The decedent, a resident of Massachusetts, conducted an automobile concern in the City of Reading, Pennsylvania ; he died May 20,1911, leaving a will which authorized his executors to continue the business in this State until they could properly dispose thereof; they carried it on for some time.; July 23, 1912, the axle company brought an action against them in the Court of Common Pleas of Berks County, for $2,470.29. The plaintiff claimed that, “in carrying on the said automobile manufacturing business,” the defendants bought of it merchandise in the amounts set forth in certain attached book entries. Judgment was taken “by default for want of an affidavit of defense.” August 24, 1912, the defendants filed a petition in the Common Pleas in which they recited this judgment, that execution had been issued thereon, that the sheriff had levied upon certain automobiles in their hands, that the decedent’s estate, as a whole, was solvent, and that these assets “should be held for the payment of the debts of the creditors of said decedent residing in Pennsylvania”; they prayed for a stay of execution. The axle company filed an answer in which it averred, inter alia, that “the three automobiles levied upon......were manufactured and made up entirely of material and parts purchased by said executors after the death of the said Joseph Middleby and while the said executors were carrying on the business......, and the materials purchased from said plaintiff...... having gone into the said automobiles, the said plaintiff
While the above quoted order evidently was intended to cover more than the execution here under discussion, and refers to “the constable and the sheriff,” yet there is nothing else before us indicating any execution other than the one in question, or what interest the constable had in the matter; but, however that may be, so far as the record shows, it appears that no further effort was made to have the Court of Common Pleas determine whether or not the automobiles levied upon were “subject to and liable for said executions,” or, if so, “the respective interests” of the constable and sheriff. Furthermore, the record shows that when the estate came on for adjudication in June, 1914, about seventeen months after the stay was applied for, although it was then admitted that the sum realized from the sale of the automobiles levied upon exceeded the plaintiff’s claim, yet no formal request appears to have been made of the Orphans’ Court to hold the fund in controversy so as to give the claimant an opportunity to have the Common Pleas speed the determination of the questions just indicated; on the contrary, the request was that the claim for a preference be forthwith allowed
Under the circumstances at bar, we cannot say the court below erred when it refused to make an exception of the claim in question and ruled that, after payment of Pennsylvania creditors, “since this is a solvent estate, the general rule will be followed (see Barry’s App., Poster’s Est., 88 Pa. 131) and the balance of the fund remitted to Massachusetts where the non-Pennsylvania claimants may present their claims.” In this connection, it is to be noted that, although the executors bought axles from the claimant, yet it was proved they had made payments exceeding the amount of their purchases, and, as stated by the adjudicating judge, it was by no means shown the axles in the cars levied upon were not paid for; further, it was not proved whether these particular axles were purchased before or after Mr. Middleby’s death. While judgment was obtained against the executors by default in the Common Pleas, yet it will be observed from the record of that court, as we have recited it, that none of the points above indicated was there determined, and, in addition, it will be noticed that not only was there a failure to ask the Orphans’ Court to hold the fund pending a further application to the Common' Pleas, but, as just suggested, the claimant also failed to prove the salient facts upon which he relied to show his right to a preference, when given the opportunity so to do in the Orphans’ Court.
In Middleby’s Est., 249 Pa. 203, we held that “suit brought by a foreign creditor against the estate of a decedent upon which ancillary letters have been granted in Pennsylvania, does not make such foreign creditor a domestic creditor,” and that “it is a general rule that, where ancillary administration has been raised in this
The assignments of error are overruled, and the decree is affirmed; the appellant to pay the costs.