84 Pa. 61 | Pa. | 1877
delivered the opinion of the court,
This was an appeal from the decree of the court below making distribution of a fund in the hands of E. T. Fox, committee of Hester Taylor, a lunatic. The committee, after the death of the lunatic, filed his account in the Court of Common Pleas, in which he charges himself with the fund as the property of Hester Taylor. The auditor and the court below treated the fund as the property of George T. Granger, and after the payment of the expenses of the audit, and Mrs. Rutty’s bill for sixty-three weeks board of the lunatic, awarded the residue to the lien creditors of Granger. This was error. The creditors of Granger have no legal claim upon this money. They were heard when his real estate was sold at a judicial sale and the proceeds thereof brought into court for distribution. The judgment bond of Granger conditioned for the support of Hester Taylor Avas a lien upon said real estate. This judgment was in the. nature of a fixed lien, and ought not to have been divested by the sheriff’s sale : Luce v. Snively, 4 Watts 397 ; Moore v. Shultz, 1 Harris 102. The amount could not well be ascertained in dollars, in Avhich it differs from an annuity bond, the value of which can always be fixed by reference to the Carlisle tables. It appears, however, that the parties, the auditor and the court beloAY, have treated the lien of the Hester Taylor judgment as divested. All of the confusion in the case arises from this fact. It is too late noAV to remedy this error, and Ave must decide the case as it is presented. -Upon the distribution of the proceeds of Granger’s real estate it ayouM appear that the auditor, by some process or course of reasoning which does not very clearly appear, ascertained the value of the condition of the bond given to Hester Taylor, for he set apart to meet it the sum of $1394.63, being a trifle more than one-half the penalty of the bond. This sum the auditor directed should “ be impounded in dourt for the benefit of Hester Taylor, the plaintiff in said judgment, to be used by E. T. Fox, her com
This was all surplusage. He merely directs that the money should be applied as the law, in the absence of any such direction, would apply it. In its legal effect it differs in no respect from the order of the court. Neither the auditor’s report nor the decree of the court imply any trust for the creditors of Granger. They had their day in court. When the real estate" of Granger was' sold, by consent of all parties, the lien of the Hester Taylor judgment divested; they came in and obtained nearly half the proceeds applicable thereto, to apply to their subsequent liens. They-could not do this and claim to hold a lien upon the balance of the fund. Having consented to the divesting of the lien of the Taylor judgment and obtained the benefits thereof, they had no right to ask the court below to impress a trust for their benefit upon the fund awarded to the committee. The court below evidently so regarded it. Otherwise the whole fund should have been set apart. Had a trust been intended, it should have been a trust for the whole. Had Mr's. Taylor lived several years the portion set apart for her might and probably would have been entirely inadequate. The whole fund might have been insufficient. As a portion of the fund was awarded to the subsequent lien creditors, and only $1394.63 applied to the Hester Taylor judgment, we regard this sum as the
As before observed the committee of Mrs. Taylor charges himself in his account filed as such committee with this money. If he has brought money into his account which in point of fact belongs to some other person, or to some other estate, its distribution, here might not protect him against a claim therefor by the rightful owner. In this proceeding it would seem to be conclusive as to the ownership of the fund. So long as the accountant interposes no objection of this nature, it is not easy to see how any one else can do so.
We are of opinion that the lien creditors of Granger cannot come in upon this fund. Nor is Mrs. Rutty, the appellant, in any better position. Her claim for boarding the lunatic was properly allowed. Beyond that she cannot claim in this proceeding. We are disposing of the account of a committee, not of an administrator. The entire fund, after the payment of proper claims against it, should have been awarded to the personal representatives of Hester Taylor, deceased, by whom when received it can be distributed according to law. It may be necessary to raise up an administration for that purpose.
The decré'e is reversed and set aside, and it is now ordered and decreed that the residue of the fund in the hands of the committee, after the payment of the expenses of the audit, the claim of Mrs. Rutty for board as allowed by the auditor, and the costs of this appeal, be paid to the personal representatives of Hester Taylor, deceased.