Ferguson v. Yard , 164 Pa. 586 ( 1894 )

Opinion by

Me. Justice McCollum,

Whilst the bill in this case was prepared and filed for the purpose of having the real and personal property which Mrs. Yard conveyed to the Guarantee Trust and Safe Deposit Company declared applicable to a judgment recovered against her as executrix of the estate of Charles S. Murphy deceased, there was no averment in it that any portion of such property formerly belonged to his estate, or was derived directly or indirectly from it or from the proceeds of it. The complainant did not even allege that he was informed and believed and expected to be able to prove that the property thus sought to be charged with the judgment constituted legal or equitable assets of the estate in the hands of the executrix or her trustee under the conveyances mentioned in the bill. As the whole purpose of the proceeding was to apply to the judgment against Murphy’s estate the property which the Guarantee Trust and Safe Deposit Company held for Mrs. Yard and her daughter under deeds from the former, it was of the first importance that it should appear on the face of the bill that the property sought to be so applied was prima facie, at least, an asset of the estate and liable for its debts. The learned judge of the court below was therefore fully justified in saying in substance, as he did in the decree dismissing the bill, that there was nothing on this record showing that the trust property ever belonged to Murphy’s estate. 'He was also clearly right in his conclusion that under section 24 of the act of Feb. 24, 1834, the claim of plaintiff against the real estate of Charles Murphy deceased was lost by lapse of time. Murphy died on the 8th of June, 1876, and the suit in which the judgment was obtained was commenced on the 30th of January, 1886. As the claim was not founded upon or secured by a mortgage or judgment the lien of it was lost nearly five years before suit was brought for the recovery of it: Bindley’s Appeal, 69 Pa. 297, and Oliver’s Appeal, 101 Pa. 299. The act referred to and the cases cited relate to debts not secured by mortgage or judgment, and to the lien of such debts on the real estate of a decedent.

Assuming what was not alleged in the bill, to wit, that all or part of the fund held by the Guarantee Company in trust as aforesaid, represented cash and securities which Mrs. Yard received as distributee under the will of Chas. S. Murphy, deceased, was it an asset of his estate and applicable to the judgment in question ? The cash' and securities mentioned were awarded to her by an absolute decree of the orphans’ court more than six years before suit wTas brought upon the claim, and more than twelve years ■ before this bill was filed. This decree remains unreversed, it has never been directly assailed, and it cannot be successfully attacked collaterally. An exec? utor or administrator who makes payments in conformity with such a decree is unquestionably protected by it: Stewart’s Appeal, 86 Pa. 149, and Charlton’s Appeal, 88 Pa. 476.

But it is contended that the decree affords no protection to the distributee because a refunding bond was not required by it. We cannot assent to this proposition. A voluntary payment by an administrator to a distributee cannot be recovered back in the absence of fraud or an agreement to refund in case it should prove to be an over payment or it should be needed to satisfy after-discovered claims against the estate; and further, the statute of limitations runs against the payment from the time it was made: Montgomery’s Appeal, 92 Pa. 202, and Miller v. Hulme’s Exr., 126 Pa. 277. That a distributee who receives money from an administrator under and in pursuance of an absolute decree of the orphans’ court is in a worse position than one who receives it without the sanction of such a decree is a proposition which has neither reason nor authority to support it. Nothing is better settled than that the orphans’ court has exclusive jurisdiction to ascertain the amount of a decedent’s property and to order its distribution among those entitled to it: Whiteside v. Whiteside, 20 Pa. 473. Its decrees, until reversed on appeal or opened by the tribunal in which they were entered, are conclusive: Lex’s Appeal, 97 Pa. 289. An allegation of want of actual notice of the settlement of the account of an administrator, or of the decree of distribution, is unavailing where it appears that the notice provided by the act of assembly has been given: App v. Dreisbach, 2 Rawle, 305; Priestly’s Appeal, 127 Pa. 420. At all events such allegation will not be considered in a collateral attack upon the decree. We think it is clear from the acts relating to distribution and from the decisions under them that the absolute decree of the orphans’ court founded upon the notice prescribed by the statute is not made null by the omission to exact a refunding bond. In Shaeffer’s Appeal, 119 Pa. 644, Clark, J., in referring to distribution under the act of April 13, 1840, said: “ In this form of distribution, notice to creditors being provided for, refunding bonds are not required.” It is true that in that case this question was not squarely raised, inasmuch as refunding bonds had been given, but it is also true that the statement was in accord with the construction placed on the act in Scott on the Intestate Law, p. 431, and with the decision of this court in Hoban’s Appeal, 102 Pa. 405. In view of the principles stated and the cases cited we concur in the conclusion reached by the learned court below and approve the reasons assigned for it in the decree. This renders it unnecessary to consider other objections to the bill which are in their nature technical. We may add that in the consideration of the case we have received material assistance from the carefully prepared and exhaustive brief presented by the learned counsel for the appellee.

The specifications of error are overruled.

Decree affirmed and appeal dismissed at the costs of the appellant.