226 Pa. 528 | Pa. | 1910
Opinion by
The orphans’ court may direct a sale of decedent’s real estate for the payment of debts only where the personal assets are insufficient for that purpose; but the right of a judgment creditor to enforce Ms lien against such real estate, when obtained in the lifetime of the debtor, rests on no such condition. The court out of wMch the latter execution issues may stay the execution so as to allow the sale to be made under the jurisdiction of the orphans’ court; but it is not required to do so. Whether it shall or shall not, rests entirely within the discretion of the court, having regard to the circumstances of the case. If it be made to appear that a stay will be without prejudice to the judgment creditor, and that other interests will likely be advantaged by a sale made through the orphans’ court, a stay should be granted; if otherwise, there could be no occasion for interference. In any event the court having control of the execution cannot be expected to act of its own motion. The parties in interest, creditors or distributees, who tMnk that they will be advantaged by a sale other than by the sheriff, may so represent to the court, and ask that the execution be stayed: Hammett’s App., 83 Pa. 392. But if they remain silent and allow the execution to proceed to a sale, their opportunity to require an orphans’ court sale is irrevocably lost. A sheriff’s vendee under such sale acquires as good a title in every respect as would a vendee had the property been sold under an order of the orphans’ court. This is but another way of saying the power of sale in the orphans’ court is not exclusive. “If it be supposed that no sale by execution can ever be made on a judgment against an estate, after the death of the ancestor, it is a mistake. It can be always made