157 Pa. 98 | Pa. | 1893
Opinion by
The testator, after directing that his funeral expenses should be promptly paid and that one thousand dollars should be expended for masses for the repose of his soul, bequeathed “unto the St. Johns Orphan Asylum, St. Vincents Home, and the Catholic Home, 18th and Race Sts., each the sum of $500.” To his wife Elizabeth he bequeathed one third of the balance of his personal estate absolutely and the net income of one third of his real estate during her natural life. To his son, James, he bequeathed his entire business as then “ conducted and carried on ” by him in the city of Philadelphia, and in the state of New Jersey, and all his rights, title and interests in any firm or business with which he was connected in said city or elsewhere, “ under and subject, however, to the above devise ” to his wife. He then devised and bequeathed the residue of his estate to his son James and his daughter Rose, their heirs and assigns, “ in equal parts share and share alike,” and appointed his son James sole executor of his will.
We agree with the learned auditing judge that under this will the testator’s daughter Rose is not entitled to share in the business bequeathed to her brother James, or the proceeds arising from a sale by him of the testator’s interests therein. We think also that the personal property not specifically bequeathed is primarily liable for the debts, and that under the residuary clause of the will James and Rose can only take what remains after such debts and the general legacies are paid, and their mother has received the share of the personal estate bequeathed to her. Williams on Executors, vol. 2, 1360; Nichols v. Postlethwaite, 2 Dall. 131; Tucker v. Hassenclever et al., 3 Yeates, 294; McGrlaughlin v. McGlaughlin, 24 Pa. 20. It is agreed by all the parties interested that the amount of the personal estate exclusive of the business interests specifically bequeathed to James is but $8,607.58, and it appears that the sum of: the debts and legacies chargeable against it is 9,094.58. It is manifest therefore that there is no balance for division, under the residuary clause, and that five sixths of the fund for distribution represents proceeds of business interests bequeathed to James.
We agree with the learned orphans’ court that the appellant as assignee for the benefit of creditors is not entitled to commissions on the estate administered by his assignor. It was
Tliis commission is unlike a legacy or distributive share which, by virtue of the act of July 27, 1842, P. L. 436, may be attached before any settlement of the estate. It is not in any sense an interest in the estate, and there is no fixed standard by which it can be measured. Whether it shall be allowed or refused is a question which usually arises on the claim of the executor or administrator on final settlement, and is affected by various circumstances and considerations not applicable to the claim of the heir or legatee.
It is true, as contended by the appellant, that some things are assignable which are not attachable, as for instance a policy of life insurance, which, although payable to the legal representatives of the assured, may be assigned but cannot be attached during his life: Day v. New England Fire Ins. Co., 111 Pa. 507. If however an assignment by a debtor of “ all his goods, chattels and property ” for the benefit of his creditors includes a claim for commissions on the unsettled estate of a decedent, and enables the creditors through their trustee to intervene in the settlement of his accounts as executor, it would seem to be open to the objections which were deemed fatal to the proceedings in Adams’s Appeal, supra. It is the intervention of the creditors of the executor, for the purpose of appropriating compensation for his services, that is objectionable, and, speaking for myself, against the policy of the law. It matters not to the estate or the parties in interest therein whether such interven
In .conformity with the foregoing views, the first specification of error is sustained and the second specification is overruled.
The order awarding to Rose E. Cooney $3,246.55 is reversed; $6,493.55, being two thirds of the balance for distribution after deducting legacies, is awarded to Henry S. Cattell, assignee of James Mulligan, Jr., and the decree of the orphans’ court, so modified, is affirmed at the costs of the appellee.