Williamson's Appeal

1. The widow and administratrix of R. borrowed $600 of W. for the purpose of paying off a widow’s dower upon the estate of the decedent. She obtained it upon an express promise to sell out the real estate of R., and repay W. out of the proceeds, giving her own note as collateral. The money was applied by the administratrix to the object for which it was obtained, and the real estate bound by the dower was sold and the proceeds brought into the Orphans’ Court for distribution. W. claimed to be paid out of the fund, which claim the heirs resisted on the ground that the administratrix had no authority in law to borrow the money, and that the estate of R. was not liable therefor, and that W. could only look to the personal responsibility of the administratrix o'n her note. Held, that W. was entitled to the rights and remedies of the administratrix, and it was error to reject his claim. 2. Where the jurisdiction of the Orphans' Court has attached over a fund it comprehends within its grasp all powers necessary to make a distribution.

Appeal from the Orphans’ Court of Northampton comity: Of January Term 1880, No. 83. Appeal of Henry Williamson from the decree of the court dismissing the exceptions filed by the said Williamson to the report of P. C. Evans, Esq., auditor upon the account of Jacob H. Beck, administrator de bonis non, &c., of Stephen Remaly, deceased. From the testimony taken by the auditor he reported the following facts: “ That Stephen Remaly died prior to April 1st 1873; that at the time of his death there was a dower charged on his estate of more than $700 in favor of Mary Knecht; that about April 1st 1873, Mary Knecht died, and the dower became due; that Sarah Remaly had taken, out letters of administration on the estate of her deceased husband, and, being desirous of remaining in possession of the estate and thereby to keep her family together, undertook the paying off of the dower; that to do this she borrowed $600 of Henry Williamson, and gave therefor her individual judgment-note. Williamson appeared before the auditor, and asked to have distributed to him tire amount borrowed by Mrs. Remaly for the payment of the dower.” The auditor found that the money borrowed by Mrs. Remaly from Williamson went towards paying off the Knecht dower ; that when Mrs. Remaly borrowed the money she promised to repay it when she should sell the decedent’s real estate; that the administrator de bonis non included Williamson’s claim in his schedule of debts of the decedent when he petitioned the Orphans’ Court for an order of sale, but reported that Williamson had no standing as a claimant in the distribution of the fund derived from the sale of Stephen Remaly’s real estate under an order of the Orphans’ Court. Exceptions were filed to this report, which the court, Meyers, P. J., dismissed, in an opinion, inter alia, saying: “ The exceptions practically raise but two questions — 1. Is Henry Williamson a creditor of the estate of Stephen Remaly, deceased? 2. Is Henry Williamson entitled to be subrogated to the rights of Sarah Remaly, adminstratrix, by reason of her payment of the Knecht dower ? “ 1. It is not pretended that there was any contract relation between Williamson and the decedent in his lifetime. The loan was made after the death of the decedent to his administratrix on her personal obligation. It no doubt is true that the greater part, and probably the entire $600, was applied by the administratrix to the payment of a debt for which the estate was liable, and that Sarah Remaly, in her capacity as administratrix, induced Williamson to loan her the money upon the promise that it would be repaid out of the decedent’s real estate when sold. But these circumstances do not make the estate liable, even though the judgment-note had been executed by her as administratrix. “A declaration alleging that the defendant, as executor, was indebted to the plaintiff for so much money lent by the plaintiff to the defendant, as executor, and for money had and received by the defendant as executor, for the use of the plaintiff, and that in consideration thereof the defendant, as executor, promised to pay, charged him personally, and the only possible judgment is de bonis propriis: Rose v. Bowler, 1 H. Black. 108; Powell v. Graham, 7 Taunt. 223; Ashby v. Ashby, 7 B. & C. 444. And in this state it has been held that in all cases of promise, express or implied, made by an executor or administrator after the death of the testator or intestate, an action lies only against him personally: Grier v. Huston, 8 S. & R. 402; Beeson v. McNabb, 2 Barr 4221 Solliday v. Bissey, 2 Jones 347; Seip v. Drach, 2 Harris 352; Bogle v. Kreitzer, 10 Wright 465. In Seip v. Drach, supra, it was held that nothing is better settled than that an executor or administrator is answerable in his official character for no cause of action that was not created by the act of the decedent himself. In actions against the personal representative on his own contracts or engagements, though made for the benefit of the estate, the judgment is de bonis propriis, and he is, by every principle of legal analogy, to answer it with his personal property. “ The doctrine sanctioned in Collins v. Weiser, 12 S. & R. 97, is not applicable. There the declaration set forth an implied promise by an administratrix, as such, for money paid, laid out and expended by the plaintiff for her use as administratrix in consequence of the payment after, the death of the intestate of a debt for which he and the plaintiff were jointly liable in his lifetime, which was held good, and that a judgment de bonis testatoris founded upon it may be supported. In support of it, Gibson, J., says, ‘that an implied promise arises out of and follows the nature of the consideration, which in this case was the actual payment of money to the use of the administratrix, as such; and there is therefore no great technical absurdity in implying a promise by her in the character in relation to which the money was paid to her use. * * * While the debt did not arise until after his (the intestate’s) death, the liability which produced the payment, which is the consideration of the promise, existed in his lifetime.’ It is quite manifest that this case is an exception to the general rule, growing out of the fact that the plaintiff and the intestate were in the lifetime of the latter jointly liable for the debts paid by the plaintiff. u The farthest that the courts have gone in this state is that where a settlement of an account against an estate is made by executors, an obligation by them, under their hands and seals, to pay the balance out of the assets of the estate creates no personal responsibility on their part beyond the assets which came to their hands : Allen v. Griffin, 8 Wright 397. So, also, where a warrant of attorney to confess a judgment is given directly to a creditor of the estate by an administrator, who signed it as such, it does not impose any personal liability upon him: Dickey v. Trainer, 7 Wright 509. “ The only authority that an administrator has to encumber real estate of a decedent for the payment of debts is by the Act of March 29th 1882, and that only extends to mortgaging the same under an order of the Orphans’ Court. It was therefore held, in Barger v. Cassidy, 4 Phila. 324, by Judge Sharswood, of the District Court, that an order authorizing an administratrix to borrow money upon real estate was an authority to mortgage the estate and not to confess a general judgment. The administratrix borrowed the money on a judgment confessed by her as such, and in a collateral proceeding it was held that it did not bind the real estate of the decedent. “ The fact that in this case the claim of Williamson was included in the schedule of debts of decedent in the petition of the administrator de bonis non, &c., for an order of sale of the real estate, does not make the estate liable to Williamson when there was in fact no legal liability. Nor does the further fact that the parties to the judgment-note intended it to be only a collateral security to the parol promise made by the administratrix, as such, that the money loaned to her should be paid out of the estate have the effect of making the estate liable. It was not a promise to a creditor of the estate, but to a third party, the consideration. of which had its inception after the death of the intestate. For these reasons, he must look to Sarah Remaly for payment, who is the only person liable on her judgment-note. “2. It is unquestionably the law that when an executor, administrator or assignee for the benefit of creditors advances money to pay a lien on the trust estate he is subrogated to the rights of the creditor whose claim he has paid: McCurdy’s Appeal, 5 W. & S. 397; Wallace’s Appeal, 5 Barr 103; Robb’s Appeal, 5 Wright 46. “ This right of subrogation cannot, however, extend beyond the trustee who has paid the money. A third person who advances the money to the trustee to pay the same has no such equity. Even a payment by a third person' to the creditor would give the former no rights either legal or equitable against the estate of the debtor, on the ground that he is a mere volunteer, unless he took an assignment of the debt. Whatever may be the rights of Sarah Remaly as administratrix to be subrogated to the rights of the heirs of Leonard Knecht,. deceased, she makes no claim in that respect, and I know of no rule in equity that entitles her debtor, Williamson, to do so. “ We think the auditor was right in rejecting the claim on both grounds. Exceptions dismissed and report of the auditor confirmed absolutely.” From this decree this appeal was taken.