Walker's Appeal

1 Grant 431 | Pa. | 1857

The opinion of the court was delivered by

Woodward, J.

— We do not agree with the learned judge of the Orphans’ Court, that the acts of assembly regulating the sale of decedent’s real estate, contemplate the exhaustion of the personal assets by the administrator, before he is at liberty to take any action for the sale of the real estate. “ Whenever it-shall satisfactorily appear to the executor or administrator, that the present estate of the decedent is insufficient to pay all just debts,” &c., is the language of the 20th section of the Act of 24th February, 1834; he is then to proceed without delay in the manner provided by law, to sell, under the direction of the Orphans’ Court, so much of the real estate as shall be necessary to supply the deficiency. He is not obliged, nor at liberty, to wait until he has exhausted the personalty, but is bound to apply to the court, as soon as it appears, satisfactorily to him, that the personal estate is insufficient. It cannot, therefore, be said, that this administrator proceeded prematurely. He set forth in his petition, under oath, that the personal- estate of the decedent was insufficient to pay his debts, and that it is requisite to sell his real estate for the payment thereof, and having also specified the real estate of the decedent, he concluded by praying the court to authorize a sale of it. This was a sufficient petition to •ground the proceeding, and we think the court was in error in setting it aside. But the 33d section of the act referred to, re•quired the administrator to exhibit to the court a “true and perfect inventory and conscionable appraisement of all the personal estate whatsoever of the decedent.” He presented what he called such an inventory, but it appears that he omitted a recorded mortgage of Samuel Walker, in favor of the decedent, for a real debt of ten thousand dollars. Whether'this was by accident or design is not material. An inventory which omitted so important an item of assets, could not be called either true or perfect; nor could the accompanying appraisement, however conscionable, be said to be of all the personal estate whatsoever of the decedent.

The object of requiring such an inventory and appraisement, is to enable the court to decide whether there is necessity for the sale of the whole or any part of the real estate. The administrator, in making his application, acts on evidence satisfactory to himself, but the sale, when it is ordered, is a judicial sale — in pursuance of a solemn decree of a court of record — and before such a decree is passed,, the court is entitled to havé all the evidence which the statute provides, for the information of its conscience. If the court were bound to decree the sale, because the administrator had satisfied himself that_there would be a deficiency of assets, all effectual supervision of personal representatives would be taken away, and the safeguards which the law throws around the real estate of decedents, would be broken down. It would be idle to require the court to decree the foregone conclusion of the administrator, and better to commit the whole matter at once to the unrestrained discretion of the latter.

But it is said, by way of excusing the administrator’s neglect to return this mortgage, that it is worthless — that the mortgagor is insolvent, and that the mortgaged premises were sold on a prior judgment of James T. Parke against Samuel Walker. The auditor who was appointed to make distribution of the proceeds of the Orphans’ Court sale, says it is difficult to determine, from the loose and indefinite description of the levy, to what extent , the mortgage was divested by the sheriff’s sale, but he thinks almost the entire mortgaged premises, except the part known as the “ four acre lot,” .were sold by the sheriff. He tells us also, that this four acre lot, together with all the other lands described in the mortgage, were subsequently sold at sheriff’s sale, but on a judgment younger than the mortgage, and at a time when all liens prior to the mortgage had been extinguished. This last sale would, not affect the lien of the mortgage, for a sheriff’s sale on a junior judgment, divests a mortgage lien only where the mortgage is not prior to all other liens, (except as provided in the Act of 6th April, 1830,) or where the junior judgment is for part of the mortgage debt; 10 Barr, 472; 1 Jones, 282. The mortgage, then, was a subsisting lien as to the four acre lot, and possibly as to more of the premises described in it, and this question, the extent and value of the subsisting lien, as well as the solvency of the mortgagor, ought to have been submitted to the court in the conscionable appraisement. It was not for the administrator to assume that an open mortgage for ten thousand dollars was valueless, and so suppress all statement of it. If the facts that had come to his knowledge led him to suppose that as a personal security it was worthless, and as a lien it had been divested, he should have submitted these facts to the court, and given them an opportunity to pass on them. By means of an auditor and a survey, if necessary, the court could have determined how much of the mortgage premises had been sold by the sheriff at the first sale — how much remained subject still to the mortgage — whether the lien was impaired by the second sheriff’s sale — and, indeed, whether this mortgage, together with the other assets of the decedent, were sufficient to pay his debts without recourse to the land. The' law has entrusted this question to the Orphans’ Court for adjudication, and it is of the last importance to widows and heirs, that it should remain where the law has placed it. A very ingenious argument a posteriori may be made to prove that the court would have deemed the personalty insufficient, had it all been exhibited, but it never can be certain that a judicial decree, founded on partial evidence, is the same it would have been on full and appropriate proof. At any rate, there is the statute, which says, no authority for the sale or mortgage of real ‘ estate shall be granted, until such an exhibition of the personal estate is made as it prescxdbes, and it is not possible to answer that with ingenious arguments.

On the whole, we think the decree in setting aside the sale, founded on so imperfect an exhibition of the personalty, was right, although we consider the petition sufficient, and the schedule amendable in the particular specified, yet it may, perhaps, be best to clear the record, and make way for a more careful proceeding de novo, by affirming the de&ree generally, which, is done, except as to the costs, which are ordered to be paid out of the estate.