Wylie's Appeal

Mr. Justice Gordon

delivered the opinion of the court, January 5 th 1879.

John E. and Julius L. Slemmons, by deed dated March 24th 1877, assigned, for the benefit of their creditors, to W. A. Mickey, all their estates, real personal and mixed.

At the date of the assignment the assignors were entitled to certain legacies from the estate of William Slemmons, late of Wooster, Ohio, deceased. Among other assets of the assigned estate, which were collected by Mickey, were $174.60 received on account of these legacies. The assignee filed an account, including, among other items, the amount received, as above stated, from the Slemmons estate, which was duly confirmed January 13th 1878, and an auditor appointed to make distribution of the fund among creditors.

Before the auditor appeared the appellee, Mrs. M. J. McGill, who claimed that the $174.60 collected from the estate of William Slemmons by the assignee, belonged to her by virtue of a parol agreement with the assignors, made before the assignment, by which the money coming from the legacies, above mentioned, was to be appropriated as soon as it was collected, to the payment of two notes held by the Washington Savings Bank, upon which she was surety.

The claim thus made was allowed by the auditor, and his action approved by the court.

We think this was error, for two reasons : 1. The fund in court was, by the decree of the court, appropriated to creditors; the *199 auditor was ordered to distribute it among creditors, and lie had no authority to pass upon the rights of an adverse claimant and award this fund, or any part of it, to such claimant. The decree definitely fixed the rights of the creditors to have the money in court divided among themselves, and, as long as that decree stood, neither the auditor nor the court could turn it over to some other party. If authority is wanting, in support of a proposition so obvious in itself, it will be found in Okie’s Appeal, 9 W. & S. 156 , and Jefferis’s Appeal, 9 Casey 39.

2. There was no actual assignment of the legacies to Mrs. McGill. There was but an agreement to pay the money, which might be received from them, on the notes for which she was surety, and to this agreement the executor of William Slemmons was not a party. John E. Slemmons testifies: “ The money from Ohio was to be paid at the savings bank on these notes when I received it from the executor.” Julius L. Slemmons says : “ I was to pay the money I received from the executors in Ohio to the savings bank to be applied on my note. I made this agreement with the bank when I got the money. There was no arrangement made that my sister was to collect the money. I was to receive it and pay it to the bank.” This does not constitute an equitable assignment of the claim, for there is here only the agreement of the debtor to appropriate the proceeds in relief of his surety, but there is no such direct appropriation of the claim itself to the surety as would authorize a direct payment by 'the executor to her.

In the case of the Bank v. Gish’s Assignees, 22 P. F. Smith 13, it was held, that where B. drew .a check on the bank before his assignment, which was not presented until after, it was not an appropriation to the payee, and that the money remaining in the bank passed to B.’s assignees. This is a stronger case than the one in hand, for the check authorized a direct payment to the payee, had it been presented in time. But Mrs. McGill had nothing to present to the executor of William Slemmons’s estate to show her right to the fund in question ; she had but an oral promise that the fund, when received, should be applied to the notes, but before it was received the power of those who had so promised had passed to their assignee, and hence, the promise or agreement fell from a want of power on part of the promisors to execute it.

The decree of the court below is now reversed and set aside at the costs of the appellee, and it is ordered that the whole fund now in court or in the hands of the assignee, as the case may be, be distributed among the creditors of the assignors as their rights may appear.