Beeber's Appeal

Mr Justice Sterrett delivered the opinion of the court, March 6th 1882. The parties to this contention claimed the fund in court by virtue of attachments in execution issued on judgments which they had respectively obtained against Edward Uyon, a mortgage creditor of John Fox, then ¡deceased. After service of the attachments, the mortgaged premises were sold by the sheriff and tire proceeds brought into court for distribution. The fund was awarded pro rata to the judgments of the appellees, whose attachments were issued« March 4th 1878, and served same day on Jeremiah Kelley, administrator of John Fox. Appellants’ attachment was not served until the following day, and was therefore postponed to, the prior attachments, unless they were void for want of propdr service. It is contended by them that such was the case, because, they say, there was no personal representative of John Fox until after the fifth of March, and consequently no one on whom the writs could be legally served before that date.- If they are correct in this position, the assignments of error should be sustained. The record, made by the register at the time, in the docket kept for that purpose, shows that on March 4th 1878, letters of administration on the estate of John Fox, deceased, were granted to Jeremiah Kelley, who on same day gave bond with William Frantz and Daniel Steck as sureties. From an inspection of the record and the bond bearing the indorsement, “ filed March 4th 1878,” no one could doubt that Mr. Kelley was the proper person on whom to serve attachments in execution. It is to such l’ecords as this that creditors and others interested must resort for information. They are not required to call upon the administrator for the purpose of verifying the register’s record of his official action. As was said in Miller v. Meetch, 8 Barr 421: “ The register of wills is a judicial officer, having an official seal, and required by usage, as well as the tenor of the statute regulating his proceedings, to keep a record of his acts and doings. These are public records importing verity, and as such receivable in evidence before other tribunals.” It is expressly made the duty of every register “ to keep a minute-book, duly indexed, in which shall be entered minutes showing what papers have been filed in his office,” &c. (Purdon 1252, pi. 24); and also, “,to make and certify under the seal of his office, true copies of all bonds, inventories, accounts, actings and proceedings whatsoever, remaining in his office,” &e.: Purdon 1254, pi. 8. This involves the duty as well as the necessity of keeping a record of his acts and proceedings. Without going beyond the record itself, in this case, we have positive evidence that letters of administration were granted on the day the first attachments were served; but appellants seek [601] to avoid the effect of this by resorting to testimony outside the official record for the purpose of showing what occurred and when the letters were actually delivered to the administrator. Mr. Kelley testified, in substance, that he appeared before the register on the fourth day of March 1878, with his bail, and applied for letters of administration on the estate; that the register said it was all right, the bond was accepted and filed, and, because the register was not prepared to make out the letters immediately, he was requested to call for them in the afternoon. He then went out, and shortly afterwards the attachments issued by the appellees were served on him. It was afterwards suggested to him by the appellants’ attorney that he should not lift the letters until the following day ; and accordingly he was sworn and received the letters on the fifth of March. They had been made out for him and dated the day before, but the deputy register before delivering them erased that dato and inserted the fifth, to correspond with the actual date of delivery. Is there anything in this testimony that should be permitted to impeach the record or change its effect? We think not. The application for letters was made on the fourth of March; on that day the judicial act of granting them was performed, and the bond with approved security was then accepted and filed. A record of this proceeding was made, and all that remained to be done, was to administer the oath and hand the letters to the administrator. It will scarcely be claimed that the latter was essential, except for the purpose of furnishing him with convenient evidence of his authority, in case it should be questioned. As to the oath, it wras administered before the letters were delivered, and in that the directory clause of the Act of 1832 was complied with. The failure of an administrator, who has in other respects complied with the law, to take the required oath, will not per se make void the grant of letters. In that respect, the Act may be properly regarded as directory, while in others it is mandatory. No doubt persistent'neglect or refusal of an administrator to take the oath, would justify an order revoking the letters, and granting them to another. But, a failure to give the prescribed bond has a very different effect. The Act declares, in express terms, that letters granted without it shall be void : Purdon 109, pi. 21. Prior to taking the oath, the grant of letters in this case was perhaps voidable, but it was not void. Everything that was really essential to the judicial act of granting the letters having been done, and a record thereof made, on the fourth of March, we are of opinion that Mr. Kelley should thenceforth be recognized as the personal representative of the deceased, and that service of the attachments on that day was valid. The record of his ap [602] pointment, and approval of his bond, was notice, to everybody, of his official character, and those who promptly acted upon it, should' not be deprived of the fruits of their vigilance, by the intentional delay of the administrator to fully comply with all the requirements of the law until the following day. Decree affirmed, and appeal dismissed at the costs of appellants.