Williamson's Appeal

Mr. Justice Paxson delivered the opinion of the court, Sarah Remaly, widow and administratrix of Stephen Remaly, deceased, borrowed six hundred dollars of the appellant for the , purpose of' paying off a widow’s dower upon the estate of the decedent. She obtained it upon an express promise to sell the real estate and repay the appellant out of the proceeds, giving her own note as collateral. That the money was applied by the administratrix to the object for which it was obtained is not denied. The auditor finds “that the money borrowed by Mrs. Remaly from Williamson went towards paying off the Knecht dower; that when Mrs. Remaly borrowed the money she promised to pay it when she could sell the decedent’s real estate ; that the administrator de bonis non included Williamson’s claim in his schedule of debts of the decedent when he petitioned your honorable court for an orderof sale.” The real estate bound by the dower, and to relieve which the money of the appellant was advanced, has been sold, and the proceeds brought into court for distribution. The appellant claims to be paid his $600 out of said fund. This claim is resisted by the [236] heirs upon the ground that the administratrix had no authority in law to borrow money in this manner; that the estate of Stephen R.emaly is not liable therefor, and that the appellant can only look to the personal responsibility of the administratrix upon her' note. We may concede the soundness of this as a general proposition, and if the appellant were in a court of law seeking to enforce a general liability against the estate, he Avould be likely to encounter serious difficulty. A judgment recovered upon the note would be de bonis propriis, and not de bonis testatoris, for the reason that it was her contract, and not the contract of the decedent; Grier v. Huston, 8 S. & R. 402; Seip v. Drach, 2 Harris 352. But this is a proceeding in the Orphans’ Court, which for many purposes is clothed with equity powers. When the jurisdiction of the Orphans’ Court has attached over a fun-d, it comprehends within its grasp all powers necessary to make distribution. In Dundas’s Appeal, 23 P. F. Smith 474, the Orphans’ Court denied its jurisdiction on the ground that it was necessary for the parties to go into a court of equity to obtain a decree to have a. deed cancelled. This ruling was reversed upon appeal to this court. See Bull’s Appeal, 12 Harris 286, and Kittera’s Estate, 5 Id. 416. In the case in hand, the heirs who have had their estate increased by the amount of the sum loaned by the appellant, deny the right of the administratrix to bind the estate, and yet seek to retain the proceeds. This is not equity, but iniquity. If the administratrix bad advanced her own money to pay the dower, she would clearly have been entitled to subrogation : Wilkins’s Estate, 9 Watts 132; Ketchner v. Forney, 5 Casey 47; McKerrahan v. Crawford’s Ex’rs, 9 P. F. Smith 390. The administratrix did not claim subrogation for the benefit of the appellant, as she might have done, and as good faith to him would seem to require, and being personally irresponsible, it is clear that unless the appellant’s claim can be sustained he must lose his $600, and that just that amount will go into the pockets of the appellees. Is the appellant entitled to subrogation? It was said in Mosier’s Appeal, 6 P. F. Smith 76, that privity of contract is not necessary in subrogation; it rests on principles of mere equity and benevolence. The principles of subrogation do not, however, apply in favor of volunteers. They can only obtain the right to substitution by contract. In this case the appellant was a volunteer. He had no interests to protect in paying this money. Is he entitled to substitution by contract ? It requires no strain to hold that the transaction between the appellant and the administratrix was a purchase of the dower claim. It is true, it was not so in form, but it was so in substance. It is not pretended that the administratrix intended .to extinguish the claim when she paid off the dower. Neither the claim of the Knecht heirs nor the bond has ever been marked satisfied. Neither the administratrix nor the administrator de bonis non has ever [237] claimed a credit for tbe payment of the dower. In the orders of sale applied for by them respectively this dower is returned in the schedule of debts as amounting, with interest, to $619.22. The administratrix expressly agreed with the appellant to sell the land and repay him out of the proceeds. This was an informal assignment of the claim t-o him. But it was without authority, say the heirs. This is true, and if they had not received the proceeds of the loan, would have been a sufficient answer. But in Jones v. The Building Association, ants, p. 215, we held, as this court has often held before, that where a person, assuming to act as agent for another, acts without authority, or exceeds his authority, the party benefited cannot repudiate the agency or the authority, and yet retain the fruits of his act. Here the administratrix, without authority, borrowed money for the benefit of the estate. The money went into the estate, and before the heirs can repudiate her act they must return the money. Again, the appellant loaned his money upon the credit of the estate. Mrs. Remaly says she had no property of her own. The appellant refused to loan the money to her as she could not give security. Then it was she said she wanted it for the estate. He so loaned it and took her individual note as collateral security. The effect of this was to make her a surety for the estate to the amount of the loan; at least, if not so technically, she stood in the position of a surety. It is a familiar rule that where a surety, or a person standing in the situation of a surety for the payment of a debt, receives a security for his indemnity and to discharge such indebtedness, the principal creditor is in equity entitled to the full benefit of that security, and it makes no difference that such principal creditor did not act upon the credit of such security in the first instance, or even know of its existence: Kramer’s Appeal, 1 Wright 71; Rice’s Appeal, 29 P. F. Smith 168. It is to be observed that there are no intervening rights here which interfere with our doing justice between the parties. We are of opinion, that the appellant was entitled to the rights and remedies of the administratrix, who had actually advanced the money to pay off the dower, and it was error to reject his claim. The decree is reversed at the costs of the appellees, and it is ordered, that the claim of the appellant be paid out of the fund in the hands of the administrator de bonis non.