Horner & Roberts v. Hasbrouck , 41 Pa. 169 ( 1862 )

The opinion of the court was delivered,

by Woodward, J.

Anciently when a man died in England without making any disposition of his testable goods, the King, as parens patries, used to seize the goods to the intent that they should be preserved and disposed of for the burial of the deceased, the payment of his debts, and to advance his wife and children, if he had any, and if not, those of his blood. This royal prerogative, granted sometimes to lords of manors, was invested finally in the prelates of the church, for it was said none could be found more fit to have such care and charge of the goods of the deceased than the ordinary, who all his life had the cure and charge of his soul. By Statute of Westminster 2, 13 Edw. 1, c. 19, it was enacted that the ordinary should be bound to pay the debts of the intestate, as far as his goods extended, in the same manner that executors were bound in case the deceased left a will; and in Snelling’s Case, 5 Rep. 82, it was resolved that if the ordinary took the goods into possession he was chargeable with the debts of the intestate at common law, and that the above statute was only in affirmance of the common law. The residuum, after payment of debts, remained still in the hands of the ordinary, to be applied to whatever purposes his conscience should approve. Whether it should go to support the children of the decedent, or be applied to the pious uses of the church, or swell the revenues of the ordinary himself, depended on his will and pleasure. The flagrant abuses of this power led to the statute 31 Edw. 3, c. 11, w'hich required the ordinaries to depute the next and most lawful friends of the dead person intestate, to administer his goods. This is the origin of administrators as they stand in England to this day. They are the deputies of the ordinary, and accountable to him in the spiritual courts for the execution of their trust: Henloe’s Case, 9 Co. 38; Plowden’s Com. 277; Marriet v. Marriet, 1 Strange 661; 1 Williams’ Executors 350; 2 Bl. 495, 515.

It was not until the statute of 22 and 23 Car. 2. c. 10, that the surplusage of intestates’ estates (except of femes covert, which were left as at common law) were required to be distributed among the next of kin, according to fixed rules. Thus it is seen that the right of creditors to be paid out of a decedent’s goods was recognised, bo.th at common law and by statute, long before the right of succession was secured to his children and kindred. But real estate was never treated in England as assets for payment of debts, and was not subject to administration either by the ordinary or his appointees.

In Pennsylvania, however, it was provided by the laws agreed upon the very year of the royal charter to Penn, that all lands and goods should be liable for debts — marking thus not only a wide departure from the example of our ancestors, but a fixed determination of the Founder of Pennsylvania that the right of succession to real as well as personal property should wait on the. superior rights of creditors. A variety of laws were made prior to 1700 to regulate intestates’ estates, and to fix the course of descent and distribution, a summary of which may be seen in the note to 3 Smith’s Laws 153, but they all kept in view the paramount right of creditors, and made distribution among kindred of only the residuum, whether of real estate or personal goods, that should remain after creditors were paid. The 188th law, passed in May 1688 (3 Smith’s Laws 54), provides “that any person who died intestate, being owner of lands, and who hath left or shall leave issue, it shall be lawful for the Court of Orphans, with the approbation of the governor and council, to empower the widow or administrator, in case of considerable debts, charge of child or children, to make sale of such part of said land as the council and court may judge meet.” Thus one hundred and seventy-five years ago we find provision made for sale of decedent’s lands to pay his debts if “ considerable,” which word meant, I suppose, that they should be more than his personal estate was able to pay. In that old statute was the root of our Orphans’ Court planted. The idea was taken from the Court of Orphans of the city of London, which had the care and guardianship of children of deceased citizens of London in their minority, and could compel executors and guardians to file inventories, and give securities for their estates: Wimmer’s Appeal, 1 Whart. 102; Hood on Executors 100. The Court of Orphans was one of the privileges of that free city; and that the people of Pennsylvania might enjoy the same protection, it was transplanted into our law, at first without any change of name, but afterwards called the Orphans’ Court. The beginnings of this court were feeble. Rut it grew in importance with the increase of wealth and population, was recognised in our Constitution of 1776, and in each of our subsequent constitutions, and has been the subject of innumerable Acts of Assembly. What confusion and embarrassment had resulted out of the multitudinous and ill-digested legislation, touching this most important court, may be inferred from what Judge Duncan was forced to say in 1824 in McPherson v. Cunliffe, 11 S. & R. 432: “Nothing so much requires legislative attention as the proceedings-of the Orphans’ Court, for so sure as Ave descend into our graves so sure into this court we must come; and the man Avould be a public benefactor Avho would devise set forms and furnish directions in conducting the vast business in these courts, where every day finds so deplorable a system of confusion.” The codifiers of our civil code were required by the legislature to take up this subject first, and they felt very sensibly the difficulties of their task. “The peculiar structure of the court,” say they, “its extensive but ill-defined sphere of jurisdiction, the magnitude of the interests upon which it operates, the uncertainty of the code of laAv by which it is regulated, and its equally uncertain and insufficient practice and process, serve to surround with difficulties every attempt to frame a regular system for it.”

They did, hoAvever, lay the foundations of a very regular system in a bill which they reported and the legislature passed, and which has ever since been known as our Orphans’ Court Law of 1882. Two years subsequently the Act of 14th of April 1834 was passed, more fully defining and more completely systematizing the powers of the court. The first of these enactments continued to the Orphans’ Court, under proper regulations, the power to decree a sale of decedent’s lands for the payment of debts — the latter to make “ distribution of the assets and surplusage of the estates of decedents, after settlement of administration accounts, among creditors and others interested.”

The power of the ordinary to appoint executors and administrators was transferred to a register, in pursuance of the laws agreed upon in England, and we have retained that officer with enlarged and regulated powers, but the accounts of his appointees are finally adjusted in the Orphans’ Court, where jurisdiction over executors and administrators lasts from the moment of their appointment by the register until they are discharged after final and satisfactory settlement.

From this brief glance at the history of our Orphans’ Court, it will be seen how we enforce the principle, never lost sight of in our jurisprudence, that the lands of a decedent, like his goods, are assets for payment of his debts, and that the right of succession has respect only to so much of his estate as remains after debts have been paid. When a man dies in Pennsylvania, his estate, real and personal, comes within the jurisdiction of the Orphans’ Court, to be administered, first of all, for the benefit of creditors, and next for legatees, devisees, and heirs. If he die without creditors, and dispose of his estate by will, we do not realize the relation which the court bears to his estate, because its powers are rarely invoked; but if he die intestate and indebted, we see at once how the machinery of the Orphans’ Court is adapted to the administration. We usually define an heir to be one on whom the law casts the estate at the death of the ancestor, but with us the estate'is cast subject to the jurisdiction of the Orphans’ Court. The personal estate is indeed the primary fund for payment of debts, but the real estate is as truly assets for this purpose as the personalty, though not to be first appropriated, and both realty and personalty are committed to the jurisdiction of the Orphans’ Court. Heirs are thus postponed to creditors, and must wait a year for administration. If it he said, as for some purposes it is correct to say, that the estate vests in the heir directly the ancestor dies, it must be understood to be a contingent interest, defeasible in behalf of creditors. What really vests in the heir is a title to the residuum, or, in the language of our Act of 1834, the “ surplusage” of the estate. This is what the law casts on the heir. It can be nothing else consistently with our system of administration and distribution.

When, on the 4th day of June 1856, John Walker, Sr., died intestate and indebted, his personal estate was committed by operation of law to his administrator, in trust, primarily for creditors, and his real estate descended to his eight heirs, subject to the jurisdiction of the Orphans’ Court, to reclaim it for purposes of conversion into money to pay debts which the personalty should prove insufficient to pay. When, on the 1st of November 1856, Robert C. Walker, as administrator, presented his petition to the Orphans’ Court, showing that the personal estate was insufficient to pay the decedent’s debts, and praying for an order to make sale of his real estate, the jurisdiction of the Orphans’ Court attached in form to the estate, and a sale was decreed and made. But the proceedings that were had, including the petition of the administrator, were set aside by the Orphans’ Court, whose decree we affirmed: 1 Grant 431. Proceedings were not again renewed until after the sheriff’s sale, hereafter mentioned, under which the defendant in error claims. But though the jurisdiction of the Orphans’ Court which had attached was by its own judgment detached on account of irregularities in the proceedings, it was nowise impaired or diminished. It existed’ still as the only legal jurisdiction entitled to administer the estate of the decedent. The Courts of Common Pleas, and the District Courts of Philadelphia and Allegheny counties, have jurisdiction undoubtedly'to convert a decedent’s real estate into money for payment of debts, but they proceed in the course of the common law for the collection of debts, not in the forms of our statutes for the administration of the debtor’s estate. And their proceedings may be restrained in favour of the jurisdiction of the Orphans’ Court, whilst there is no statutory restraint upon the powers of the latter court in favour of those of the Common Pleas or of the District Courts. This is one of the striking changes introduced into our system of Orphans’ Court proceedings by modern legislation. Whatever may have been the feebleness of the Orphans’ Court originally, however its powers may have been involved in doubt and confusion from 1683 to 1832, there can be no doubt that under the statutes since the latter date it has become a court of record, with all the incidents of a court of record at common law — that it is clothed with authority to distribute estates of decedents among “the persons entitled to the sameKittera’s Estate, 5 Harris 422 — that the exclusiveness of its jurisdiction, and the conclusiveness of its decrees, have been placed by the Acts of Assembly and by the decisions of this court upon a foundation which cannot be shaken: Whitesides v. Whitesides, 8 Harris 474 — that its jurisdiction within its appointed orbit is exclusive, and therefore necessarily as extensive as the demands of justice: Shallenberger’s Appeal, 9 Harris 337 — that it is possessed of chancery powers, and can proceed according to chancery practice to make all such decrees, interlocutory and final, as may be necessary in the administration of its appropriate duties: Black’s Executor v. Black’s Executor, 10 Casey 357. See also Thomas v. Simpson, 3 Barr 60; Seider v. Seider, 5 Wh. 208; Ashford v. Ewing, 1 Casey 215. ’

No diligent student of the various Acts of Assembly since 1832, and of the adjudications above named, can fail to see that the codifiers marked a distinct era in the history of the Orphans’ Court, and lifted it to the dignity of a first-class tribunal; and that inheritance in Pennsylvania, where the decedent dies intestate and in debt, is limited to the “surplusage” of the estate after the debts are paid, and does really vest, for any practical and available purpose, in nothing more than that surplusage. If this were not so, a sheriff’s sale on a judgment against an only heir, after descent cast, would take away the estate wholly from the creditors of the ancestor, and give it to the creditors of the heir. In other words, the principle that lands of a decedent are assets for payment of debts would be eradicated from the foundations of our jurisprudence, in which it was implanted by the hand of Penn himself. And it is no answer that the proceeds of a sheriff’s sale would be distributable among the creditors of the ancestor; for first it is doubtful whether they would be entitled to proceeds as against judgment-creditors of the heir; but if they would, this is not the mode of conversion which the law has provided for them. A sale by the Orphans’ Court has many advantages over a sheriff’s sale on execution process, and creditors have a right to insist on the legal, which is the most beneficial form of conversion.

The judgment of James, Kent & Santee, entered against Samuel Walker on the 18th of October 1856, bound his possible interest in the surplus of his father’s estate, and the sheriff’s sale passed that interest to Arthurs, the purchaser, as fully as Samuel held it. Let it be observed at this point that these creditors could not be restrained from making this sale. Had they been creditors of the decedent, and having obtained judgment against him or his personal representative, had they proceeded to levy on the same land as Ms estate, the 35th section of the Act of 24th of February 1834, Purdon 200, would have applied to them, and they could have been restrained from making a sheriff’s sale, in order that the Orphans’ Court jurisdiction to make the sale might be maintained. But no such power of restraint extended to a sheriff’s sale of the interest of the heir ? Why ? It may be answered, because the statute does not so provide. But I press the question: why did not the codifiers and the legislature make the statute broad enough to restrain such a sheriff’s sale, as well as a sheriff’s sale on process against the personal representative ? The answer is obvious: they meant to protect only the estate of the decedent, and they understood very well that that could not be exposed to a sheriff’s sale on process against the heir. The 35th, 36th, and 37th sections of this act w'ere new and most important provisions. They were designed to commit the real estates of decedents to the Orphans’ Court for conversion. The codifiers said: “ We think that concurrent jurisdiction on subjects of this nature is not desirable. We will add,” they said further, “that a sale of real estate by order of 'the Orphans’ Court, is in almost all cases more advantageous for all parties than a sheriff’s sale.”

But it were a weak invention — this great and salutary reform in our law — if it could be defeated by hurrying up a sheriff’s sale against the heir of the decedent. If the decedent’s estate can be sold on process against the heir, then the system so carefully matured in the Act of 1834 is no system, and we are adrift again in a sea of uncertainty, as before the codifiers laid hand to the helm. But if we say that the sheriff sold to Arthurs only Samuel’s contingent interest in his father’s estate, then the Orphans’ Court system is unimpaired, and Arthurs took what Samuel held, precisely as Samuel held it — subject to reclamation by the Orphans’ Court.

Mr. Arthurs had full notice that this land of the decedent was needed for payment of debts, for it was upon his motion, as attorney of creditors, that the first Orphans’ Court sale was set aside, and R. C. Walker turned out of the administration. His levy of the judgment he represented against Samuel, made the very day after he had got the administrator dismissed, did not oust the jurisdiction of the Orphans’ Court; and the sheriff’s sale in pursuance of that levy gave him no equities such as a purchaser without notice of the condition of the estate might imagine himself to possess, but left him with the mere legal title to Samuel’s defeasible interest; and when he conveyed to Hasbrouck, on the 19th of May 1860, after the Orphans’ Court was again in motion for a sale of the property as the estate of John Walker, Sr., the latter took no more than Arthurs held, and was a purchaser with legal notice of the condition of the title. Hasbrouck has no equities to allege, therefore, any more than Arthurs.

But, independently of all equities, it is insisted that the law has been settled in Pennsylvania to be as claimed by the plaintiff below; that the sheriff’s sale of the heirship of Samuel divested the title of his ancestor. If the law be so, it is obvious that had Samuel been the only heir of his father, or had similar sheriff’s sales been had against each of the eight heirs, the Orphans’ Court would have been stripped of its jurisdiction, and the creditors of the decedent, instead of enjoying the fruits of a regular administration of their debtor’s estate, would have been obliged to content themselves with such proceeds as the sheriff may have extorted from fragmentary sales of the several heir-ships.

Let us look into the authorities relied on: Milliken v. Kendig, decided in 1831, and reported in 2 Penna. Rep. 477, was as follows : Jacob Comfort, being indebted by judgment, died, and his real estate descended to his children, of whom Henry Comfort was one. Judgments were obtained against Henry, and executions issued, which were levied upon his interest in his father’s estate, which was subsequently sold and the proceeds of sale brought into Court for appropriation. It was claimed by the creditors of the father and son between whom this issue was joined. The court below gave the money to the creditors of the son, a judgment which the Supreme Court reversed, and gave it to the creditors of the father.

An important diversity is that the Act of 1882 had not then been passed, and the decision was uninfluenced by that act and the subsequent ones which have enlarged and defined the jurisdiction of the Orphans’ Court. Indeed, Judge Rogers, who delivered the opinion of this court, did not mention or refer to the Orphans’ Court, and wrhat proves conclusively that the question which we are considering was not before his mind, is his remark that he cannot distinguish the case from that of Commonwealth, for use of Gurney’s Executors, v. Alexander, 14 S. & R. 257 — a case that had no touch of descent or inheritance in it. In that case the familiar doctrine was affirmed that a purchaser at sheriff’s sale under a judgment does notutake the land subject to a prior judgment obtained against a former owner, unless it was sold expressly subject to such judgment. Chief Justice Tilghman illustrated his ruling by saying, if A. obtained judgment against B., who afterwards aliens to C., A. may levy on the land in possession of C. What the Chief Justice was contemplating was a ease of alienation inter vivos, and not of succession to a decedent’s estate. He put, arguendo, the case of Nichols v. Postlewaite, 2 Dallas 131, where A. devised lands to B., charged with legacies. The land was sold on judgment against B., and it was held that the proceeds of sale should be applied in the first place to the discharge of legacies, a doctrine which is both denied and reaffirmed by two cases in 16 S. & R. See Parr v. Bouzer, p. 309, and Barnet v. Washebaugh, p. 413. But neither Judge Tilghman, in ruling Alexander’s Case, nor the judges who ruled the case he cited, referred themselves to the Oiqohans’ Court law which prevailed at the time. And both cases were founded on purchase rather than inheritance, for devise is a form of purchase. The truth is, legislation had not yet marked out distinctly the jurisdiction of the Orphans’ Court in converting the real estate of decedents, and hence the principles of decision found in such cases as the above are not applicable to a case that comes up under the modern legislation. It took some time to impress even the professional mind with the fact that the Orphans’ Court Act of 1834 had committed all remedies for testamentary charges on land exclusively to the Orphans’ Court. Strictler v. Shaeffer, 5 Barr 240. And the section bringing in widows and heirs to answer for debts of decedents was a provision that worked its way very slowly into notice. The current of prior decisions is what caused this reformatory legislation. It would be grossly illogical to permit the same current to destroy the legislation.

These observations are applicable to Luce v. Snively, 4 Watts 396. That was a contest like the present, between a sheriff’s vendee of an heir and a purchaser at an Orphans’ Court sale as the property of the decedent. But the Orphans’ Court proceedings were under such legislation as prevailed before 1810. The court held that the sheriff’s vendee took the estate discharged of the lien of the debts of the ancestor. This may have been good law in 1810, but it is not a rule which can be adapted to our legislation since 1832.

. The recognition of Luce v. Snively, in Swaar’s Appeal, 1 Barr 93, was only to distinguish it from the case then before the court, whilst Swaar’s Appeal was ruled on the same ground as Mix v. Ackla, 7 Watts 316. In both of these cases the principle was distinctly asserted that it is only the interest of the heir, and not the estate of the ancestor, which passes by a sheriff’s sale on a judgment against the heir, but in both cases there was a prior fixed, lien in behalf of a widow. The authority of these cases is limited by that circumstance.

Granting that the authorities do insist on the general principle that judicial sales divest all liens where there is no fixed encumbrance like a Avidow’s dower, it will be found that they all apply to sheriff’s sales against alienees, or devisees, or heirs, before our modern legislation commenced in 1832. Since that time this court has never decided, so far as Ave remember, that a sheriff’s sale of an heirship ousts the jurisdiction of the Orphans’ Court in respect to the estate of the ancestor. Nor can such a decision be pronounced, for it Avould make havoc of the system of distribution, which the legislature, under the guidance of the codifiers, have provided. That system is compact, rational, and beneficent. It is best for creditors, as Avell as heirs.

It was wise to commit the decedent’s estate to the Orphans’ Court exclusively, for the machinery of that court is flexible, and can be adapted to the exigencies of eaph case, so as to prevent sacrifice and loss. It is a statutory mode of conversion, and therefore displaces, necessarily, all others. It is the prescribed form of applying to decedent’s estates the always accepted principle that lands are assets for payment of debts. It must have its course. And in a conflict betAveen a sheriff’s vendee under a judgment against an heir, and a purchaser at an Orphans’ Court sale, the title of the latter must prevail.

The judgment is reversed, and judgment is entered here for defendant in the case stated for costs.