McCollum v. Perigo , 16 Pa. Super. 566 ( 1901 )

Opinion by

Beaver, J.,

The appeal in this case is taken from a decree of the court below, refusing to order the sheriff to pay into court the money arising from the sale of certain real estate sold as the property of M. T. Perigo. The petitioner, as administratrix of her mother’s estate, claimed a portion of the proceeds of the sale, under a claim of a “ widow’s exemption,” out of the estate of J. T. Perigo, the husband of the claimant and the father of the appellant, and M. T. Perigo, as whose property the real estate was sold. It was not denied that the claim had been proceeded in properly and had been made a lien upon the real estate. It was claimed, however, that this lien had been postponed by agreement to the mortgage upon which the real estate had been sold. The facts are fully set forth in the opinion of the court below, are not denied and present a single and very simple question for our consideration.

The petitioner claims that the tripartite agreement entered into by and among her mother, her brother and herself, did not include the claim for exemption and that, therefore, as the administratrix of her mother, she is entitled to receive it, in preference to the mortgage, the lien of which was later. The claim for the so-called widow’s exemption is fully set out in the recitals of the said agreement, in which it was said that the inventory and appraisal had been duly taken, filed and finally confirmed by the orphans’ court of Susquehanna county, and that the enjoyment of the real estate by the said M. T. Perigo was made by the will of the decedent subject to the payment of the sum to which Polly Tiffany, the petitioner, was entitled, and also'subject to the payment of the sums going to said Sarah (the mother) including her exemption, as aforesaid. The existence of the claim of the widow was, therefore, clearly recognized in the agreement and is in part the subject-matter of which it treats. The son, desiring to borrow money for the purpose of paying his sister’s interest and the debts of the decedent, entered into the agreement with his mother and sister, as stated in the agreement “ to the end and purpose that, in the event of a sheriff’s or other judicial sale of the said premises, the said mortgage was first to be paid and discharged out of and from the proceeds thereof.” Taking the several clauses of the agreement together and construing it as a whole, there can be no question as to what the intent of the mother and her children, who were the parties thereto, was. There was abundant consideration for the agreement. There is no denial but that its stipulations were fully carried out by the son. The mortgagee, who advanced the money upon the mortgage, could have reached no other conclusion than that all the parties to the agreement intended that the mortgage should be first paid out of the proceeds of the sale of the real estate included therein. This is •not doubtful, even if we ignore the references to the widow’s claim in the recitals in the agreement. This was so apparent from the facts set forth in the petition and the terms of the agreement itself, that the court would not have been justified in depleting the fund arising from the sale by subjecting it to the costs of an audit and the delay consequent thereon. Decree affirmed and appeal dismissed at the costs of the appellant.