Phillips's Estate, 205 Pa. 525

205 Pa. 525 | Pa. | 1903

Opinion by

Mb. Justice Brown,

By two. assignments, dated January 30, 1891, and May 30, 1894, Altamont P. Moses assigned to the Bank of Sumter, South Carolina, $10,000 of his interest in the estate of his uncle, Henry M. Phillips, deceased. On June 1,1894, he assigned $2,736.14 of this interest to Marion Moise, trustee, and, on February 28, 1899, he and his brother, H. Cleremont Moses, assigned $60,000 of the same interest to the United Security Life Insurance & Trust Company of Pennsylvania. Between the dates of the last two assignments, on June 3, 1898, a foreign attachment, issued against Altamont P. Moses out of court of common pleas No. 2 of Philadelphia, was served upon the accountants as garnishees. The share of the nephew was awarded by the court below as follows: “ First, to the payment of the assignments to the Bank of Sumter; second, to the assignment of Marion Moise, trustee ; and third, subject to the attachment of Manning et al., to the United Security Life Insurance Company under the assignment and the purchase in pursuance of it.”

The award to the Bank of Sumter as holding the first claim on the fund for distribution was on the ground that the assignments to it were not only prior in dates to those of the other two, but that it had given notice of them to the accountants and the United Security Life Insurance & Trust Company before the later assignments were executed. If this award depended upon the notice alleged to’have been given to the Pennsylvania Company for Insurances on Lives and Granting Annuities and Henry T. Coleman, executors and trustees, it could not be sustained, for the letter of' June 3, 1896, from a representative of the Bank' of Sumter to Mr. Henry K. Paul, president of the Pennsylvania Company for Insurances on Lives and Granting Annuities, cannot be regarded as notice given by the bank, or intended to be given by it, of the assignments to it. The letter was one offering to sell the notes held by the bank, and contained a statement that they were secured by the assignments to it. While it is true, as held by the learned judge of the orphans’ court, that “ no special form of notice of an assignment is required,” it is equally true that, to affect one with notice not formally given, it must come in such a way or under such circumstances to the person alleged to have been notified, that, as a reasonable man, he ought to regard it as notice to control his conduct in relation to the matter which is the subject of the notice; on the other hand, if it is manifest that notice is not intended, it will not be presumed it was received when, from what takes place between the parties, there is nothing from which notice ought to be inferred concerning what may subsequently become a subject of controversy. The letter written by the bank was intended to induce the Pennsylvania Company for Insurances on Lives and Granting Annuities to purchase the notes of Altamont P. Moses. It was one of innumerable business letters received by the company, and, though there is an incidental reference in it to the assignments by Moses, there is nothing in it which ought to have led the company to regard it as notice of them to be remembered for the information of subsequent prospective assignees of the same interest. But, as the Bank of Sumter is entitled to priority over the United Security Life Insurance & Trust Company for the same reason that Marion Moise, trustee, was directed to be first paid, if the appeal of the accountants were to be sustained, the order of distribution would not be changed.

Notice of the assignment to Marion Moise, trustee, was not given until after the assignment to the United Security Life Insurance & Trust Company. But between them attaching creditors intervened. The service of the writ of foreign attachment was prior to the last assignment, and the claim of the attaching creditors is superior thereto. It, however, was subject to the first three, even if the Bank of Sumter and Marion Moise, trustee, had' given no notice to the accountants of the assignments to them. The attaching creditors attached only what still remained to the debtor. They could get nothing from the accountants by their attachments that did not belong to him when the writ was served. By the service of it they became equitable assignees of what Altamont P. Moses still had a right to assign. As to him the prior assignments, with or without notice to the accountants, were valid, and so they were as against his attaching creditors, whose rights rose no higher than his: Pellman v. Hart, 1 Pa. 263; Noble v. Thompson Oil Company, 79 Pa. 354; Hemphill v. Yerkes, 132 Pa. 545.

Manning et al. must be paid before the United Security Life Insurance & Trust Company, for their attachment is superior to its assignment; but before they can be paid the Bank of Sumter and Marion Moise, trustee, must get their money; and it therefore follows that the assignment to the United Security Life Insurance & Trust Company is subject not only to the attachment, but to the prior assignments. In support of this view the court below was sustained by many of our cases, from Wilcocks v. Waln, 10 S. & R. 380, down to Thomas’s Appeal, 69 Pa. 120, and Miller’s Appeal, 122 Pa. 95.

The appeal of the Pennsylvania Company for Insurances on Lives and Granting Annuities and Henry T. Coleman, executors and trustees, is dismissed, the costs of their appeal to be retained by them out of the fund awarded to the assignees and attaching creditors of Altamont P. Moses. The appeal of the United Security Life Insurance & Trust Company is dismissed at its costs, and as to it the decree is affirmed.