Appeal of Pomeroy

[498] Opinion, Mr. Chief Justice Paxson : This record presents the question whether creditors of an estate whose claims have been awarded them by an auditor, and confirmed by the Orphans’ Court, out of the funds of an estate in the hands of the executor, but who have not received payment owing to the insolvency of said executor, are entitled to come in upon a second fund raised id the same estate, and claim a pro rata share thereof. In other words, is the award of an auditor in favor of a creditor, and a decree in his favor, actual payment ? The auditor held that it was not, but he was reversed by the learned judge below, who held that the award amounted to payment so far as to exclude the creditor in whose favor it was made from participating in the second fund. It would have been more satisfactory if some authority had been cited to sustain so novel a proposition. Kittera’s Estate, 17 Pa. 416, and Sergeant v. Ewing, 30 Pa. 75, are not in point. No such question as the one before us was raised in either of those cases. Ex parte Powell, 1 Mont. & MacA. 283, is equally wide of the mart. That was a case arising under the English bankrupt law. The creditors were allowed to select the bank where the money was to be deposited when received by the assignee; a dividend was declared and the creditors notified to call at the bank, get their checks, and draw their money; some of the creditors neglected to do so, and in the meantime the bank failed. The distinction between that case and this can be seen at a glance. The auditor finds the fact that the executor became insolvent before the final confirmation of first auditor’s report, and pending exceptions filed thereto by other parties. It is true, the appellants might have applied to the court for an order upon the executor to pay them pending the exceptions. Such order, however, would have been in the discretion of the Orphans’ Court, and it is not a practice prevalent in all the counties of the state. I do not see how these appellants can be punished by the loss of their claims .for this omission. The court below, however, evidently regarded the case as analogous to that of a sheriff, who has collected money on an execution, and fails or neglects to pay it over. It is true in such case the debt is discharged and the execution creditor must look to the sheriff for the money. But I am unable to see the analogy. The sheriff is the officer of the law, and has [499] given security for the faithful performance of his duty. Moreover, the execution creditor having placed his execution in the hands of that officer for collection, has in a manner constituted him his agent for that purpose, and has the right to sue upon his official bond in case of default. But an executor is not an officer of the law, nor in any sense the agent of the creditor. He is appointed by the testator', and derives his authority to act from the will. The granting of letters testamentary by the register of wills is a pro forma act, to give effect to the will of the testator. If there was any laches here, it appears to have been participated in by all parties connected with the estate, creditors, legatees, and distributees alike. Nor do I see upon what grounds other creditors, who did not present their claims until the second audit, can charge those creditors with laches who presented their claims before the first. The residuary legatees also could have pressed this estate to an earlier settlement as well as the appellants could. Any person interested in an estate can cite the executor to file his account. That the great loss to this estate is due in a great measure to the supine negligence of nearly every one interested in it, I have very little doubt, but I do not see that the appellants are entitled to a larger share of the blame, if there be any, than the others. We see no ground upon which the principle that an award is payment can be sustained. I know of no decided case which so holds, and none such has been cited in either the printed or oral argument. The decree is reversed at the costs of the appellees, and it is ordered that distribution be made in accordance with this opinion.