Guier v. Kelly

Tilghman C. J.

delivered the court’s opinion.

This is an appeal from the Orphan’s Court of Philadelphia county. The appellant has made seven exceptions to the decree, of which the 1st is the most material. He complains that he has 'been charged the sum of 8520 dollars, as the price at which a certain house, the property of the testator, was sold; whereas in truth the sum received was but 7225 dollars, and he ought not to have been charged with any other or larger sum. This house was devised to the wife of the appellant, and her sister Mrs. 'Seckle, in fee as tenants in common. Mrs. Seckle died in the lifetime of the testator, so that as to her moiety of the house there was an intestacy; in consequence of which, one fourth of that moiety descended to the Wife of the appellant-. Although the exception admits that the appellant-received the price at which the house was sold, yet in the course of the argument his counsel denied that the item was properly chargeable in the account of the executor, because as executor the appellant had nothing to do With the real estate, and this house was sold, not by him, but'by the sheriff on an execution against the estate of the testator. This objection is worthy of consideration. By the law of England, the price of the -house could not be brought into the executor’s account, nor would any part of the money have come to his hands. In that country, lands are not chargeable with simple contract debts, nor even with a bond debt, unless the heir is expressly bound. And where the land is chargeable, the action is brought against the heir or devisee, and not against the executor. But in Pennsylvania the case is different. At a very early period, lands were made subject to debts of all kinds, and the uniform practice has been, to bring the action against the executor, and judgment being obtained against him, to levy on the lands in the hands of the heir or devisee. It has also been the practice in case of an execution against lands, to pay the surplus beyond what will satisfy the execution, to the executor, in whose hands it is assets for the payment of other debts. This practice is very proper and very convenient; because, until the administration account is settled, it cannot be known what debts against the testator remain unpaid; and if the surplus was returned to the heir or devisee whose land- had been sold,. *299 and then other debts of the testator should appear, there would be a necessity for new suits and executions for the purpose of selling other lands, by which the estate would be subject to heavy costs. It is to be understood however, that if a deyisee, or one of the heirs, loses his lands by an execution, he is entitled to a contribution from the owners of the remaining part of the testator’s lands. I do not say, that there may not be cases where, on its being made to appear to the court, that there are no other debts of'the testator outstanding, or that the executor is in insolvent circumstances, the court might think it proper to order the'surplus money to be paid to the heir or devisee. But that is not the present case; for the appellant has confessed by his exception that the money has been received by him, and it is an exception not to be favoured, inasmuch as it only tends to turn the appellees round to another form of action. I am satisfied that it was right to bring the price of this house into the administrator’s account.

But the greatest difficulty remains. The fact was that when the house was put up for sale by the sheriff, the sum of 8300 dollars was bid by Mr. Stokes. The appellant made a bid of twenty dollars more; and the house was struck off to him. He refused to comply with his contract, in consequence of which the sheriff made a second sale, and the house went off at only 7223 dollars, the difference between the first and second sale being one thousand and ninety-five dollars. With this difference the appellant was charged by the Orphan’s Court; and he excepts to it, because it is the proper object of an action at law; in which damages might be recovered for breach of contract. But this transaction seems so interwoven with the price of the house, that it may be considered as an accessary to it; and the Orphan’s Court having jurisdiction of the one, will likewise have it of the other. The actual price of the house cannot fairly be ascertained, without taking the whole matter into consideration. The Orphan’s Court, in matters within their jurisdiction, pro-' ceed on the same principles as a Court of Chancery. -Their powers under our acts of assembly are very extensive. I think it cannot be doubted but a Court of Chancery would charge a trustee with a sum of money lost by such conduct. *300 in the sale of an estate. If a trustee purchase an estate which is entrusted to him to sell, his purchase will be declared void, and a new sale ordered. If the second sale produces more than the first, he must account for it; but if less, he is chargeable with the difference. He is not suffered to say that the estate was not worth what he agreed to give for it. This is the principle which the Orphan’s Court have adopted, and I cannot say that I disapprove of it. Mr. Stokes has proved that his bid was within twenty dollars of the appellant’s, and he was ready to pay the money. It is evident therefore, that the appellant did in fact prevent the receipt of Stokes’ money. Upon a view of all the circumstances of this ease, I am of opinion that the first exception has not been supported.

The 2d exception is allowed by the counsel for the appellee.

The 3d, 6th and 7th exceptions are founded on matters of fact, which it was incumbent on the appellant to prove. He has produced no evidence, and therefore these exceptions stand unsupported.

The 4-th exception is waived by the appellant, except so far as concerns the amount of groundrent due at the death of the testator, as to which it is allowed by the appellees.

The 5th exception relates to the charge of interest. If the parties cannot adjust it themselves, the court will direct it to be settled on the principles laid down in the case of Wilcocks v. Fox (a) .

1 Binn-194.