Maurer v. Kerper , 102 Pa. 444 ( 1883 )

Mr. Justice Trunkey

delivered the opinion of the court, April 16th 1883.

This execution attachment was issued against Henry Kerper, garnishee, in his own right, and as executor of Abraham Kerper, deceased, The garnishee for himself and as executor, pleaded nulla bona; and judgment was entered against him de bonis propriisfor $849.60. It may be inferred from the opinion of the court that the intention was to render judgment against the garnishee, collectible only out of the interest of (he defendant in the estate of the decedent; but the garnishee is absolutely fixed for the amount, to be paid by himself as his own debt. However, he appears satisfied to suffer it to stand, probably feeling confident that it is not for too large a sum and that his brother would receipt the same to apply on his distributive share. But the plaintiff desires the full benefit of the attachment, which he could not have should the distributive share prove larger than the judgment.

Questions involving the construction of the decedent’s will, the fund out of which certain mortgages given by Abraham Kerper should be paid, and whether the executor should be charged with certain money, arising from a sheriff’s sale, are raised by the assignments of error, and the plaintiff avers that if these were properly considered, he would recover the greater part, if not all, of his judgment out of the defendant’s interest in the estate. He has a right to an inquiry to ascertain the amount of that interest, but in the Orphans’ Court. That court has exclusive jurisdiction of the settlement of the accounts of executors and administrators, and distributing the assets to the parties entitled. In an attachment proceeding it may be determined how much money is due to the plaintiff from an heir, legatee or distributee, for the attachment has the effect of transferring the rights of the legatee or distributee to the creditor so far as necessary for satisfaction of the debt.

An execution attachment will lie against a legacy or distributive share before settlement of the decedent’s estáte, and the court may mould the judgment against the executor or administrator into such form as will do no injustice to any one. Where there are ample funds to pay a legacy after discharge of all debts owing by the estate, and the amount of the legacy is apparent, there is no difficulty in satisfying an attaching creditor, so far as the amount of the bequest extends. In such case it is error to enter judgment de bonis propriis against the garnishee: Lorenz’s Adm’r v. King, 38 Pa. St. 93. But where the amount of the legacy or distributive share can only be determined by a settlement of the estate, the court of common pleas will not determine what goods or effects are in the hands of the executor or administrator: Bouslough v. Bouslough, 68 Pa. St. 495. In that case it was said, “ There are the demands of the creditors of the decedent himself, which must be ascertained and be satisfied before anything can remain for the legatees or next of kin. Then there are the questions of debt and advancement between the estate and the distributee or legatee, which must be settled before the share or legacy can be ascertained. The attachment transfers to the attaching creditor, only the right of the debtor on the estate, subject to all claims of the garnishee as the representative of the estate in his hands. Thus it is evident that a jury, in order to find .the sum due or coming to the debtor from the garnishee as executor or administrator, would be compelled to settle the administration account itself, a thing improper, inconvenient and belonging to the Orphans’ Court alone.”

In this case the only points in dispute relate to the amount of Daniel B. Kerper’s interest in .the estate. Whether it is a legacy or distributive share under the intestate law, the settle: ment of the executor’s account, and distribution of the balance are necessary to ascertain the amount. All the legatees, or next of kin, of the decedent are interested parties in the settlement and distribution, and those who are not parties in this attachment suit would not be prejudiced by its adjudication. We shall not now express an opinion upon questions which can only be finally determined in the Orphans’ Court when all parties in interest may be heard and their claims considered.

The judgment should have been rendered for the plaintiff against Henry Kerper, executor of Abraham Kerper, deceased, for the amount of the plaintiff’s judgment against Daniel B. Kerper, with interest from the date of that judgment, to be levied of the interest of Daniel B. Kerper in the personal estate of said decedent.

Judgment reversed and new trial ordered.