| Pa. | Mar 3, 1879
delivered the opinion of the court, March 3d 1879.
This record presents but a single question. The plaintiffs in error were the garnishees below in an attachment sur judgment, in which A. J. Gallagher, the defendant in error, was plaintiff, and one Samuel S. Norcross defendant. The subject of the attachment was a legacy in the hands of the garnishees, as executors of the last will and testament of Edward P. Middleton, deceased. Upon the trial of the attachment the garnishees offered in evidence the record of the Orphans’ Court, showing the settlement of their accounts as executors, and the adjudications by that court of the question of the right of the attaching creditors to the legacy. The court below excluded the record, and this ruling is assigned for error.
An examination of said record shows that the defendant in error appeared by his counsel before the auditing judge of the Orphans’ Court, as an attaching creditor of Samuel S. Norcross, a distributee of a portion of the fund in the hands of accountants; that “ the sole question before the court was as to who was entitled to the distributive share of Samuel S. Norcross in the legacy which formed the corpus of the trust estate.” On the one hand it was claimed by John Graham, who alleged that he was the bona fide purchaser for value of the interest and share, and on the other hand it was claimed that the amount of the share of Norcross should be directed to remain in the hands of the accountant to await the final determination of certain attachments sur judgments issued-by creditors of Norcross against the accountants as garnishees.
The court proceeded to hear the case, the counsel for the defendant in error being present and participating in the- examination of the witnesses, and finally decided it adversely to the attaching creditors, upon the ground that the legacy to Norcross had been bopa fide assigned prior to the attachments. A formal decree was
We do not think it necessary to discuss at length the powers and jurisdiction of the Orphans’ Court. The whole subject has been gone over so recently as Lippincott’s Appeal, in Dundas’s Estate, 23 P. F. Smith 474. Most of the cases, as well as Acts of Assembly, bearing upon this branch of the law, will be found there cited, either in the opinion of the court or the arguments of counsel. It was said by the learned judge, in delivering the opinion of the court:It is very clear, therefore, that the Orphans’ Court in a proceeding to distribute an estate among legatees, next of kin and heirs, has ample power to inquire into and determine all questions standing directly in the way of a distribution to these parties.” This was but a repetition of the doctrine previously announced in Whiteside v. Whiteside, 8 Harris 473 ; Shollenberger’s Appeal, 9 Harris 341; Ashford v. Ewing, 1 Casey 213; Black v. Black, 10 Id. 354; Kittera’s Estate, 5 Harris 416; Bull’s Appeal, 12 Id. 286. In Dundas’s Estate, a residuary legatee, before the value of his share had been ascertained, assigned it to the wife of an executor for a sum much less than it was ascertained to have been worth. He petitioned the Orphans’ Court to have the share paid over to him, and the assignment thereof set aside on the ground of fraud. In deciding that ease this court said, referring to the petition to vacate the assignment: “ These facts give jurisdiction to the Orphans’ Court to compel distribution by the executors, and payment of the petitioner’s share to him. Had the petition set forth nothing more the consequence would have been plain. The executors, to protect themselves, would have set forth the assignment in their answer, and cited the assignee to defend pro interesse suo. This would have brought from the petitioner a replication of fraud and deceit in procuring the assignment. The paper thus standing in the way of distribution, there being two claimants to the same legacy or share of it, the jurisdiction of the Orphans’ Court necessarily attaches in order to remove the barrier to the payment of the legacy. The language of Judge Lewis in Kittera’s Estate, directly applies, that each one must be heard in support of his claim, and in opposition to every claimant who inter
In the case in hand the legacy was claimed by the assignee of the legatee. The attaching-credjtors claimed it by virtue of their attachments. Under the authorities cited, it is very clear that the Orphans’ Court being clothed with the power of distribution, was competent to decide all questions in the way of distribution. The rights of legatees and next of kin, claims of creditors, the validity of assignments of such claims, and questions of priority of lien, are within the recognised powers of the ' Orphans’ Court. In distribution proceedings, it has been decided that the court has authority to determine the title to contesting claimants to the same fund as an incident of the distribution: Souder’s Appeal, 7 P. F. Smith 438. The parties to this contention claimed the same fund, the one by an assignment, the other by virtue of his attachment, which is a species of statutory assignment. There can be no doubt of the power of the Orphans’ Court to decide between these conflicting claims. We need not discuss the question how far an attaching-creditor is compelled to go into the Orphans’ Court with his case. The defendant in error went into that court voluntarily, and submitted his claim to that tribunal. A decree was made against him, from which he took no appeal. We are of opinion that he is concluded thereby, and that the court below erred in excluding the record in that proceeding.
Judgment reversed, and a venire facias de novo awarded.