Rastaetter's Estate , 15 Pa. Super. 549 ( 1901 )

Opinion by

William W. Porter, J.,

Caroline Rastae.tter died November 21,1897. Letters testamentary were issued to the Pennsylvania Trust Company November 29, 1897. On February 3, 1898, the executor filed an account in the register’s office, showing a balance of personal estate. On April 7, 1898, pursuant to due advertisement by the register, the account was audited and distribution ordered to legatees. The decree of distribution was made absolute April 27,1898. Distribution was made on or about May 18, 1898, to the persons named in the adjudication. No refunding bonds were taken. Thus was an account adjudicated upon and the money distributed within six months of the death and grant of letters, without the taking of refunding bonds and, as it now appears, to the exclusion of a creditor who made demand upon the executor within a year from the date of the issuance of letters testamentary.

It may be said by way of preface to the discussion, that executors and administrators owe a duty to creditors of a decedent quite as important as that to heirs or legatees. The former duty may be said to be primary, since the heirs and legatees take only after creditors are paid: Jones’s Appeal, 99 Pa. 130. It is contended that the account of an executor must be filed “ within ” one year; that this warrants the filing at any time “ within ” the year, and that, therefore, an adjudication in due course upon an account filed “ within ” a year is protection to the accountant. The word “ within ” is found in section 24 of the act of March 15, 1832, prescribing the form of bond to be given by an administrator. The time at which accounts are to be filed is prescribed by section 15 of the act where it is said: “ It shall be the duty of the said executors or administrators to make .... a just account and settlement thereof in one year or when thereunto legally required.” In view of other existing legislative provisions, this means at the expiration of one year, or when thereunto legally required. The word “in” is not infrequently used in such a connection to fix a time at which, rather than within which, an act may, or must be, performed. The language certainly imposes no duty to account until the expiration of a year.

Under section 88 of the act of February 24, 1834, distribution by an administrator cannot be compelled “ until one year be fully expired from the granting of the administration of the estate; ” and, by section 47, executors- “ after one year elapsed from the granting of the administration of the estate, upon the requisition of any .... person interested, shall pay and deliver, under the direction of the orphans’ court having jurisdiction of their accounts, all such legacies as are due and payable by them,” etc. Thus neither administrators nor executors can be compelled to account short of a year, and provision is made by legislation for voluntary distribution by the accountant within the year by the taking of refunding bonds. It is, however, argued that as the distribution in this case was made pursuant to a decree of the court, the executor is protected, notwithstanding the year had not elapsed. But payment under a decree is only protection to the extent that the decree is enforceable, and by the act above quoted, the executor cannot be made to pay within the year. In addition to the provisions above referred to, section 22 of the act of February 24, 1834, provides, that “ no executor or administrator shall be compelled to pay any debt of the decedent, except such as are by law preferred, .... until one year be fully elapsed from the granting of the administration of the estate.” If an account and a decree within the year be protection to accountants in solvent estates, they must be equally so in insolvent estates. Thus if settled with sufficient speed, some creditors may be paid, while others may be excluded, and this, notwithstanding that by the terms of the act creditors shall not be deprived of their right to receive their dividend out of the assets, unless they fail to present their claims within “ twelve months after public notice given,” which limitation, it may be noted, has itself been held merely directory where the fund has not been actually distributed: Cowan’s Estate, 184 Pa. 339. Again, as the law requires the payment of debts presented within one year, an administration which permits a distribution to legatees before the expiration of a year, involves a breach of duty, since the oath prescribed by section 14 of the act of March 15, 1882, requires an executor or administrator to well and truly administer the goods and chattels “ according to law.” Again, if distribution by decree within the year be protection, it is substantial abrogation of the legislation providing for voluntary distribution on bond given, or distribution after submission of statements, on bond approved by the court, since none would adopt either of these courses if simple accounting and decree furnish protection. The comments of the commissioners to revise the code (Parke and Johns. Dig. 755-6) throw light upon the subject now under review: “In this section we have declared as a general rule what is believed to exist almost uniformly in practice and to be sanctioned by motives of justice and convenience, viz: that executors and administrators shall not be compelled to pay debts until the expiration of a year. . . . Then the term of a year seems to be that which the legislature had looked to for this purpose, as the 14th section of the act of 1794 admits all creditors to participate in the fund, who shall exhibit their accounts within twelve months after public notice; and until that lapse of time it is plain no division of the assets can safely' or justly be made.”

The point at issue in this case is, we believe, substantially ruled by Robins’s Estate, 180.Pa. 630; Jones’s Appeal, supra; and Simpson’s Appeal, 109 Pa. 383. See also the discussion of the subject by Judge Penrose, in Gallen’s Estate, 26 W. N. C. 308. We, therefore, reach the conclusion that the executor has not been relieved from liability to the appellant by the decree and distribution made. It is scarcely necessary to call attention to the effect of a decree of distribution made after the expiration of a year. Such decrees are enforceable by process, and payment made under them is, therefore, not voluntary : Schaeffer’s Appeal, 119 Pa. 644; Hammett’s Appeal, 83 Pa. 392; Ferguson v. Yard, 164 Pa. 586; Stewart’s Appeal, 86 Pa. 149; Charlton’s Appeal, 88 Pa. 476.

Finally, it has been suggested that the present appellant is barred by laches from raising the point herein discussed, in that he did not present his application to the orphans’ court to open the adjudication immediately on discovering that distributton had been made. “ But laches of creditors will not excuse the executor for not securing refunding bonds, but his failure to do so will amount to a devastavit and render him liable to creditors for the amount so paid out by him: ” Robins’s Estate, supra. The fact is, that promptly on learning of the distribution, the creditor who now appeals, issued a writ against the executor in the common pleas, and this within the year from the date of the taking out of letters. The legislative enactments required only the presentation of the claim to the executor within the year. The most forcible presentation that could be made was made by the service of a writ and statement. The common-law action was proceeded in with reasonable speed to judgment, which was an ascertained debt when application was made to open the adjudication in the orphans’ court. The creditor was not bound to go to the orphans’ court in the first instance, although perhaps he would better have done so. The course he has taken does not convict him of laches and seems to be approved by the Supreme Court: Robins’s Estate, supra; Jones’s Appeal, supra.

The decree is reversed and a decree is now entered for the appellant for his debt with interest to the date of this decree.