Assigned Estate of Kreider

Opinion, Me. Chief Justice Paxson: The learned court below surcharged the accountant with the sum of $300, paid to the assignor under his claim of exemption. The ground of this surcharge was the fraud of the assignor. The authorities cited by the court fully sustain the position that if the debtor equivocates and dissembles, denies the ownership of that which he cannot hide, and embarrasses the officers of the law in the execution of their legal duties, he forfeits his right to exemption: See Strouse v. Becker, 38 Pa. 190; Huey’s App., 29 Pa. 219; Gilleland v. Rhoads, 34 Pa. 187; Imhoff’s App., 119 Pa. 350. No doubt exists about the law, and we think the facts fully sustain the findings of the learned judge. It was urged, however, that, inasmuch as the assignee paid out the money without notice of the fraud, he acted in good faith and should not be surcharged. It is doubtless true that if the property claimed had consisted of personal estate, and the same had been duly appraised, set apart, and delivered to the assignor without notice of the fraud, the assignee would be protected. But, in this case, the claim for exemption was made out of real estate, a farm which sold for $4,210. It could only be paid out of the proceeds of such sale. The appraisers found it could not be divided. In such case, the action of the appraisers was not in the nature of an absolute and conclusive [585] adjudication that the assignor was or would be entitled to the exemption out of the proceeds of the sale of the real estate when sold, without regard to what he might do in the meantime; in other words, it did not seat his claim either upon the land, or upon the fund realized from the sale thereof: Imhoff's Appeal, supra. The most that can be predicated of tlie action of tbe appraisers, is that it placed tbe assignor in a position to claim the exemption out of the proceeds of the sale of the real estate when it came to be distributed, provided he was otherwise entitled to it. If the assignee has paid the money over, he has done so prematurely, and is in the position of any other assignee or trustee who makes distribution of bis own motion, and without the order or adjudication of the court. In such case, he distributes at his own risk. Tile decree is affirmed, and tbe appeal dismissed, at the costs of tbe appellant.