Steffy & Skimp's Appeal

| Pa. | May 18, 1874

Chief Justice Agnew

delivered the opinion of the court, May 18th 1874.

We cannot commend the manner in which this proceeding was conducted in the court below. These appellants appeared in court by attorney and objected to the granting of the order of mortgage, but filed no answer to the petition to bring the grounds of their objection upon the record. The petition sets forth a primé facie ground for the order. Hence Ave ought not to reverse the order. The Orphans’ Court is a court of equity, within the limited sphere of its operations, and the proceedings should have the substance of equitable form, though not its technical nicety. The proper mode of proceeding in that court is by petition, answer, replication, &c., in which the substantial requisites making the case should appear. But Ave have enough before us, to convince us that the case is peculiar and requires such an order as will protect the said parties in interest. The petition sets forth the filing of the account of the executors, and jts suspension upon exceptions. It also sets forth the fact that the lands prayed to be sold Avere devised by the will. The paper-book of the appellants sets out the account and the will, and they are not denied in the counter statement. Under rule 13, adopted at Pittsburg, September 6th 1852, we can take the undenied history of the case to be true.'

From the facts thus shown it appears that there is not a total deficiency of personal property to pay the debts, but one that is temporary only, owing to the fifteen notes of Samuel B. Sheaffer, of $500 each, being payable in a series of yeárs, terminating in the year 1888. We are not disposed to say this is not a deficiency within the true intent of the Act of March 29th 1832, authorizing a sale or mortgage of the real estate for the payment of debts. It is a temporary insufficiency of the personal estate, which may well bring into existence the power to mortgage for the reason that the creditors are not bound to wait upon the credit given by the testator to his'debtors. But it is a fact which must enter into the discretion of the court, in determining the terms and time of mortgaging the real estate. Here the lands have been devised to sons at a valuation, about two-thirds of which they are required to pay to the executors, and w'hich with the residue of the porsonalty is bequeathed to the daughters. The sons therefore are quasi purchasers, as to the sum paid, and in effect pay the daughters a large sum. Now as the personal estate is the primary fund to pay the debts, while the power to mortgage for the temporary insufficiency must be conceded as a right of the creditors, it should be so exercised as to do no injustice to the devisees. If the money cannot be obtained on a long loan, and in this ease the loan would have to be very long to cover the period the notes of Samuel have to run, the devisees would be compelled to pay the money borrowed, or suffer the mortgage to be foreclosed. So far as we can discover from the paper-book, the order to mortgage prescribed no terms, and made no provision as to the confirmation of the report on terms to be adjudged equitable by the court. In a case so special as this, the order of the court should fully provide for everything essential to do equity among all the parties. Without meaning to prescribe the terms, as all the parties are not before us, it will be seen that it may be important to provide expressly for the application to the mortgage of the whole or a part of the sums charged on the land, or of the application of the proceeds of the notes of Samuel as they come into the possession of the administrator. It may be necessary to provide for the effect óf a short term, if the money cannot be obtained on a long loan, and thereupon to reserve expressly a power to re-mortgage for the benefit of the devisees, until the money can be realized from the personalty to pay off the mortgage. It is the more important to make special provisions, as the long time to elapse before final settlement may find great changes in the administration and the parties.

With this view, we affirm the decree of the Orphans’ Court, ordering a mortgage of the real estate set forth in the petition, and do order that, before the mortgage shall go into effect, a report of the same shall be made by the executors or administrators, as the case may be, and shall be subject to such order as the Orphans’ Court shall lawfully make before final confirmation thereof, and the appeals are dismissed and the costs ordered to be paid out of the estate.