Appeals of Gray

gray’s appeal, no. 26. Opinion, Mr. Justice Trunkey: Alexander Gray, a resident in the state of New Jersey, died April 6, 1873, testate, and in the saíne month his will was probated and letters testamentary issued to John Gray and Alexander Gray, Jr. His widow and nearly all his legatees then resided, and now reside, in New Jersey. At the time of his death debts were owing to him by persons living in Pennsylvania, and in April, 1874, ancillary letters of administration were granted to Alexander Gray, Jr., by the register of Luzerne county. John Brown, a son-in-law of the decedent, was his partner at and before the time of his death, in the banking business at Wilkes-Barre, Pennsylvania. Brown was indebted to the estate on a note to the amount of $11,624.89, which sum he voluntarily paid to the executor in 1873. This money is the subject of the present contention. The' sum of $50,000 which was deposited in Brown and Gray’s Bank was paid by Brown to the executor, who accounted for the same in New Jersey, where it was distributed by decree of the Orphans’ Court to the legatees. On January 25, 1875, the executor filed his account in New Jersey for said $11,624.89 which Brown had paid before the grant of letters of administration in this state. After the appellant had been cited to file his account, to include said $11,624.89, as executor he applied to the Orphans’ Court in New Jersey for leave to withdraw the item for said sum from his account, but it was finally adjudicated that he should account for the same, and on April 7, 1884, by decree, he was ordered to pay over said moneys to Abram S. Meyrick, administrator d. b. n. in New Jersey. [262] This account was filed January 1, 1883, and includes the said $11,624.89, with a statement respecting his accounting therefor in the place of the testator’s domicil, his application to the Orphans’ Court to amend the account which he expected would be granted, and in that event “ he prays the Orphans’ Court of Luzerne county, Pennsylvania, to make distribution of said moneys as being realized by him in Pennsylvania as administrator o. t. a. in estate of Alexander Gray, deceased.” He was disappointed in his expectation and, instead, was ordered to pay over the money to his successor in office. No fact appears to entitle the legatees to demand distribution of the money, the subject of contention, to be made in Pennsylvania. The executor in the place of the testator’s domicil, received the money and he was there bound to account for it, and there the legatees may compel him to perform his duty. It is difficult to see that they have any interest as to that money in citing him to account for it as administrator, here, other than to make him pa}*- it twice for the benefit of the estate. The real question is whether Brown, a creditor, may demand that the administrator be charged with said money. Brown’s relationship to the decedent and to the estate gave him knowledge of the facts at the time he paid the money to the executor. He could not have been compelled to pay it; he might have refused payment, until called upon by an administrator duly qualified in this state; but he could pay it to the executor, and if there were no creditors in Pennsylvania besides himself, nobody had right to complain. On receipt of that money by the executor he was bound to account therefor in the court having jurisdiction of his accounts. There is no merit in Brown’s claim now to surcharge the administrator with the money paid by himself to the executor, and he made no attempt to do so till over ten years after the payment. An executor may collect debts due if paid voluntarily, and remove them to the state of the domicil and there administer them. If a creditor of the estate where the debtor lived lies by without interposing by administration or suit until such assets have been fully administered in the state of the domicil, he waives his rights and cannot afterwards enforce them; Marcey v. Marcey, 32 Conn. 308. If the creditor pays a debt owing by himself, to the executor, the reason is stronger for holding that he waived his right to the money so paid. In' [263] that case when the executor comes into this state and the creditor attempts to compel him to pay that money on his debt, it is a good answer that he has already accounted for it in the proper court of the domicil, and has been ordered to pay it as set forth in the decree. The auditing judge considered and corrected the account; he did more than to distribute the balance appearing on its face as originally filed. He says that the item of $11,624.89 was accounted for in New Jersey, but was afterwards withdrawn and he reports it as cash applied to his own debt. This is not in accord with the statement in the account; and appellant not only failed to get leave to withdraw, but a final decree was entered against him for the money. Had the administrator omitted this item he would have done better. He preferred to account for the money here if he could withdraw it from the testator’s domicil. His apparent object was to bring it here and have it appropriated to himself as a creditor. That he failed to get leave to bring it, and that he could not come in as a creditor had he brought it, do not justify charging him as if he had brought it. The report shows a re-statement of the account, additional charges and credits, and upon proof that this item ought to be omitted because the Orphans’ Court of the domicil retained its grasp of the money, the court below should have excluded the $11,624.89 and all the interest thereon. It may be noted that the “ Statement of the Evidence ” in the appellant’s paper book at the argument was admitted by the counsel for the appellees. Decree reversed, and it is now considered and decreed that the items of the account composing the “New Jersey fund” amounting to $16,729.54, be struck from the account, and the distribution thereof set aside; and that the decree as to the remainder of tbe account and distribution thereof be and remain in force. Appellee to pay the costs. Record remitted. gray’s appeal, no. 27. Decree affirmed, and appeal dismissed, at costs of the appellant.