158 Pa. 645 | Pa. | 1893
Opinion by
The judgment in favor of Blaney to use, etc., was not confessed by Hawk, Adm. defendant, until after appellant’s judgment, a test case upon a claim exactly similar, had been affirmed by this court. Presumably therefore there was no defence, and the learned judge of the common pleas so held in discharging the rule to open it. He also held that there was nothing in the evidence to justify a finding of fraud or collusion. This point therefore was res adjudicata between the present parties, and the only matter left open in the orphans’ court was the alleged trust relation of William Ralston to the estate.
The single act that is proved in this case, besides the delay, is the payment by the sons, including William, of the father’s funeral expenses. But as reported by the auditor the evidence
The stress of appellant’s argument is that by such quiescence William allowed his brother to go on and finally wreck the business of the bank at Fairview, whereas if he had compelled the winding up of that business while it was still solvent, the appellant’s debt would have been paid in full. But William not having accepted the executorship had no duties towards the appellant or any other creditor. His sole relation to the estate was that of a legatee, and as such, while he had the right to cite his brother, the surviving partner in the banking business, to account, yet he was not bound to do so. He could do so or not as he chose, and the incidental effect of his action or non-action on the assets available to other creditors when settlement was finally demanded, made no change in his rights. The fact seems very clearly to be that all parties concerned, William, the aj)pellant, and the other depositors, regarded the business of Ralston, McQuaide & Co. as perfectly solvent, and safe in the hands of the surviving partner, and the good faith of William is evidenced by the fact that the same confidence which lost the appellant his debt, lost William his share of his father’s estate.
The loss becoming imminent William by the advice if not at the suggestion of his counsel, Gfilpin, sought to recoup himself to some extent by the purchase of the Blaney claim at a discount. That he could not do this, if he was a trustee, follows from the case of Heager’s Estate, 15 S. & R. 65, and is clear upon general principles, but as the proof of the trust relation entirely fails, there is no good reason, as the learned auditor well reports, why William should not have the same rights as others, to buy up claims and make a profit out of them if he could.
Judgment affirmed.