104 Pa. 482 | Pa. | 1883
delivered the opinion of the court, January 7th 1884.
The petition of Mrs Kuhlinan as- guardian of her minor children for an order to mortgage the real estate devised by her husband’s will, was certainly not as full and precise in its statements as it might have been. It contained, however, the necessary jurisdictional facts to bring the application within the power of the Orphans’ Co irt under the Act of 1853. While the land of the decedent is not described in the petition, it -was described in the petition of the administrator for an order of sale in.lS69: the administrator had made return of sale of several of the lots described in the petition, and had, in April 1871, applied for an alias order to sell some more, which last application was opposed by the widow, on the ground that the administrator had not applied the proceeds of former sales to the payment of debts, and that there was no necessity for any further sales, as the rents and profits of the real estate would in a few years be sufficient to liquidate all the indebtedness. Then, in July 1871, she filed a further petition, asking for an order to raise money by mortgage to pay off the remaining debts, which she set forth in her petition as amounting to about $6,000 or $7,000, alleging that the debts were a lien upon the real estate of the minors, and that it would be for their benefit that the money should be raised by mortgage, and subsequently paid by applying the rents, issues and profits in discharge thereof. She asked, in her capacity as guardian, for an order to mortgage the real estate of the minors, and the order was granted. She gave bond with sureties in the sum of ten thousand dollars, reciting an order to herself as guardian, to mortgage the real estate of the minors, conditioned for the faithful execution of the trust, and in October following she made return under oath that she had negotiated a loan with a bank for $7,000, and had executed a mortgage to the bank to secure the same, on lots 6, 7, 8 and 9 in Christian Ihmsen’s plan, and asked for the confirmation- of the proceedings. These lots described in the mortgage were a part of the real estate of the decedent, described in the same manner in the original petition of the administrator for an order to sell for payment of debts. In view of all these circumstances -we cannot think it a sufficient objection now to the validity of the order to mortgage, that the real-estate to be mortgaged was not properly described
The objection that there was an outstanding unexecuted alias order of sale to the administrator at the time the order to mortgage was granted is without merit. We cannot discover from the printed record what became of the alias order. There was a return of sale of two of the purparts, 8 and 9, and a confirmation nisi which was to become absolute unless excepted to in ten days. But the record shows that exceptions were filed within the ten days by the guardian, and shortly afterwards her petition for an order to mortgage was presented and order granted and executed. While the disposition of the exceptions to the return of sale does not appear, we are bound to infer they must have been sustained, as otherwise the court would not have granted the order to mortgage the same premises which were included in the return of sale to the alias order. Moreover, all these objections relate merely to the regularity of the proceeding in the Orphans’ Court, and it is the well established rule that they can not be nrged against the validity of the proceeding after confirmation and in a collateral proceeding: Lockhart v. John, 7 Barr 137; Weaver’s Appeal, 7 Harr. 416; Stivers’ Appeal, 6 P. F. S. 9. On the question of jurisdiction we see no difficulty under the Act of 1853. Of course it is true as a general rule that it is the duty of the administrator or executor of a decedent to pay the debts owing by him at the time of his death, and to raise the money for that purpose by proper proceedings. But here it was alleged, this duty had not been performed. It was further shown that the real estate of the minors was subject to the lien of debts not of record, and that it would conduce to the interest of the minors that the estate should be mortgaged and not sold, in order to raise money for the payment of the debts. The title to the property was in the children acquired under the will of their father. The widow, who was the guardian, agreed that her life estate should
The question of fraud in the defendant’s title was a pure question of fact and was fairly left to the jury by the court below. There was ample evidence in the testimony of Mr. Fitzsimmons alone, not only to warrant the court in leaving the question to the jury, but to justify the jury in finding the verdict for the plaintiff.
Judgment affirmed.
