Handy

LARNED'S APPEAL. Opinion by Mr. Justice Mitchell, The appellants are lien creditors, having a judgment in the court of common pleas No. 3 of Philadelphia, by virtue of which, they issued execution and levied on the interest of their debtor in certain real estate. This execution was stayed by an. order from common pleas No. 4 of Philadelphia, and a sale of the undivided interest of the debtor in the estate of his father Edward S. Hand3>-, Sr., both real and personal, as one whole, was ordered to be made by the debtor’s assignee for the benefit ■ of creditors. I. The jurisdiction of the court of common pleas No. 4 to thus interfere with the process of another co-ordinate court-must be found in the act of Feb. 17,1876, P. L. 4, and it is contended by the appellants that the facts of this case did not562 bring it within that act because first there was but one incumbrance against the land, and secondly because the figures show that there was no substantial doubt on the sufficiency of the estate to pay the liens on it. First, the liens claimed were the appellant’s judgment, and certain claims by the trustees of the estate of E. S. Handy, Sr., arising under his will, and others arising out of acts of the debtor his son. Handy, Sr., by his will authorized his trustees under certain conditions to make a loan to his son, but subsequently during his lifetime gave his son .the sum specified, and other moneys, and it is claimed by appellants that these were advancements not chargeable on the real estate. This contention however cannot be maintained. The moneys given by Handy, Sr., to his son were not advancements but loans, though payable in a specified and restricted way. The testator’s words are “to advance by way of loan,” and when the son arrived at the stipulated age during his father’s lifetime, the father gave him the money, 'but took his notes for the amount, and by codicils to his will, directed that these notes should bear interest at five per cent, which should be deducted from the income payable to the son from the estate during the widow’s life, and at her death the principal should be “ deducted ” from the share going to the son on final division and distribution. And lastly the share of the son in the entire estate was an undivided interest in the real and personal estate blended, until partition should be made by the trustees. We think the loans made by the father were clearly charged by his will on the whole share left to the son, including the real estate. The other claims of the trustees arising out of the acts of the debtor, Handy, Jr., present a much more doubtful question. The son borrowed from his father fifty shares of stock of the Philadelphia Trust Company, and with the father’s consent pledged it as collateral security for a loan on his own notes. In April, 1893, the father’s executors redeemed the stock and held the notes as a debt against the son, and on the same day the latter by deed poll assigned all his right, title and interest in his father’s estate, to the trustees as security for the amount of all he then owed his father’s estate, including the $17,285 paid by the trustees to redeem the stock above mentioned. As this was a pledge by the debtor to his creditor the learned master rightly held that it was not void for failure to — 563 — record it within thirty days. So far as the interest pledged is personalty it was a valid and effective assignment. But the other question, whether so far as relates to the interest in real estate (if the latter can be considered as severable at all from the blended interest) it was not postponed to appellant’s judgment by the failure to record it until nearly a year later, was not determined by the master, as in his view of the case that question would not arise until distribution. For this reason although it has been urged here by appellant, we do not decide it now, but leave it with the other matters that will require the attention of the master and the court below. These matters will include the question back of much that has been argued here whether E. S. Handy, Jr., had any interest at all in the real estate as such, which could be the subject of lien. As will be noticed more fully hereafter no specific gift is made to him of any part of the estate, real or personal, but only a share in the sum total of the value of both, and it’is open to argument that his interest in realty as such will begin only in the event of any realty being set apart to him in the division which the trustees shall make hereafter. That his interest in the estate as a whole is vested and liable for the payment of his debts, as the 'master held, does not settle the question of its present liability as land to the lien of a judgment. The second ground of objection that the case is not within the act of 1876, because of the absence of any difficulty in determining whether the property can be sold for enough to pay all the incumbrances, may be disposed of briefly. It is true that the appraised value of the personalty and the assessed value of the realty show a small margin in the amount of the debtor’s interest over the incumbrances, but these figures are based on present values while the debtor’s interest is in remainder after his mother’s life estate. This feature of the case introduces an element of uncertainty and therefore of difficulty which the court had a-right to consider: Thompson’s Appeal, 126 Pa. 467; Pauley’s Estate, 149 Pa. 196. . On-the first branch of the case therefore we are of opinion that it was within the act of 1876, and the jurisdiction of the court properly attached. II. But it is further objected that even if the court had jurisdiction it was over the interest of Handy, Jr., in the realty — 564 — only, and would not sustain the order to sell the blended interests in both realty and personalty, in one block. It is true that the act of 1876 applies only to real estate. But it is a remedial statute and should be construed in advancement of the remedy. There could be no better illustration of the usefulness of such an act than the present case. The supplementary petition of the assignee shows that the estate of Edward S. Handy, Sr., includes thirty-five houses in the city of Philadelphia, and four tracts of land, amounting to nearly 175 acres, in the rural wards of the city, assessed for taxation at $108,100, besides something over double that amount in personalty. The interest of the debtor which is proposed to be sold, is in this estate as a whole, of blended realty and personalty, and is not only undivided but in remainder after the life estate of his mother and partly contingent on other remainders to his brother and sisters. Moreover, .of what the debtor’s share shall finally consist as to realty or personalty, is and must remain entirely uncertain and contingent until after the death of the life tenant when the trustees are to make partition and distribution, in their unfettered discretion, so that they make “ four equal shares,” and until that time there is a power of conversion in the trustees as to a considerable portion of the realty by a sale which would under the will be paramount to any interest of Handy, Jr., or a purchaser of his title in any part of the realty. Nothing could be more utterly vain and speculative than an attempt to fix the value of the debtor’s interest in the real estate under such circumstances. He may not have any real estate at all, for as the personalty is more than two thirds of the whole the trustees .may allot his entire share in personalty, or on the other hand they may put it all in realty with or without owelty. The one thing in all this maze which is capable of even an approximate estimation .is the general value of his interest in his father’s estate as a whole, real and personal combined. This is what the court below have ordered to be sold. In so doing they have reached the most just, economical and convenient result as is conclusively shown by the master in his very able report. For . doing this, so far as the share may be regarded as realty the act of 1876 is ample warrant, and while that act does not refer tp or provide for sales of personalty, yet the supervision of the assignee as to such matters is part of the general jurisdiction — 565 — of the court, and there is nothing in the statute to prevent the blending of the exercise of the two jurisdictions in one order, where as here, it is in plain furtherance of the remedy intended. The only serious objection to this conclusion is that the senior lien creditor may thereby be deprived of his privilege of using his lien as equivalent to money in bidding at the sale. This argument is not without weight, and has been very strenuously urged by appellants. But we do not think it can override the clear equities of the case in other respects. The right itself depends on the act of April 20, 1846, P. L. 411, and is obviously not a right of substance, but of convenience, only, to avoid the necessity of formal payment by the purchaser to the sheriff or into court, of money which the sheriff or court must return to him in settlement of his lien when distribution is made. It arises only in cases of clear prima facie title on the records, to receive the money back. Where this prima facies is disputed the statute provides for the ascertainment of the facts, but where it does not appear clearly on the records the right does not arise at all. In the present ease the balance not only of convenience but of the substantial equities is against the creditor’s right, and not by any act of the law or which the law can prevent, but by the testator’s act in giving his son an undivided remainder in the blended real and personal estate, so that the latter’s interest in the realty'alone if any he has, is impossible of present ascertainment. III. It is further objected to the proceedings that the court postponed the consideration of the liens until after the sale. This objection we are obliged to sustain. The learned master was of opinion that the scope of the act of 1876 did not extend to the determination in advance of the amount or priority of liens, but left these as questions of distribution merely. This view, while in accordance with the general practice of our legal system, represents one of its weak points, growing out of inherent difficulties in shaping equitable rights with merely cornmon law instruments. A lien creditor who, endeavoring to protect his claim, has to bid in ignorance or doubt how much if any of the proceeds of the sale will come back to him upon his lien, necessarily has to leave a margin for the uncertainty. His bid is to that extent speculative, and therefore smaller than if based on exact knowledge. It is in the interest of justice to — 566 — all parties that public sales should be upon ascertained rights not only as to title but as to the destination of the proceeds. The act of 1876 is a remedial statute passed in aid of this interest. The authority it gives the court having jurisdiction of the assignee, to stay the hands of the sheriff, and of execution creditors proceeding in pursuance of their unquestionable legal rights, is an equitable power to direct the administration of a trust estate for the general benefit of all parties interested, according to their respective rights. In so doing the court is required to marshal the liens in order to see which are to be discharged, and it is a legitimate and convenient, if not strictly a necessary part of this process to ascertain their amounts and priority. Such ascertainment in advance is in furtherance of the purpose of the act to enable assignees “to make advantageous sales of said real estate,” and the act without any strain will bear this construction. ¥e are therefore of opinion that the sale should be preceded by an ascertainment of the liens, if any, which will remain, and of those which will be discharged, together with their several amounts and their respective rank or priority. The order appealed from is directed to be modified as herein indicated. Costs of this appeal to be paid by the appellees, but to be reimbursed out of the fund produced by the sale. PHILADELPHIA TRUST CO.’S APPEAL. Opinion by Mr. Justice Mitchell, April 29, 1895: By the second codicil to his will Edward S. Handy, Sr., directed that upon the death of his wife his trustees should divide his “ estate both real and personal into four equal shares and one equal share shall be held by my said trustees for each one of my said children upon the trusts and for the same purposes as are set forth in my will, and for no other trust or purpose whatsoever.” It is claimed by the appellant that this last clause of the sentence establishes a spendthrift trust for the whole share of E. S. Handy, Jr., and puts it all beyond the reach of his creditors. It is necessary therefore to look carefully into the trusts and purposes set forth in the will. So far as concerns the children the provisions of the will are that the residue, being the bulk of the estate, is left in trust to the present appellant, 1, to allow testator’s wife to occupy his city and — 567 — country residences'with the children and after her' death to allow the children to reside in his country house if they desire-to do so without paying rent; 2, to pay one half the net rentals and income to his wife, and to divide the other half in equal shares among his four children; 3, upon the death of his wife to pay one fourth of the net income of his estate to each of his daughters during her life to her separate use; 4, upon the death of either daughter to pay three fourths of the principal of her, share to her issue if any, or in default of issue then to testator’s surviving children, and the other fourth as his said daughter may direct, etc.; 5, when each of his sons attains the age of twenty-one to advance him in their discretion with his wife’s consent, twenty thousand dollars; 6, after the death of his wife to pay each of the sons one half of his share as he shall attain the age of twenty-five, and half of the rest or one fourth of his-whole share when he attains the age of twenty-eight, and the remaining fourth to hold on a spendthrift trust for the life of. the son. It is thus seen that the will creates six separate trusts, or duties on the part of the trustees, all of which require the whole estate except the sums authorized to be loaned to the sons, to be kept together during the widow’s life, and four of which necessarily extend the duration of the trust as to the larger part of the estate, during the lives of the four children. This is evidently the result contemplated by the testator, and the only provisions made for a separation of the joint estate and a partition or division of any of the corpus, are after the death of the widow, upon the death of a daughter or the attaining of the ages of twenty-five and twenty-eight by the sons. The will was made in 1874, the codicil in 1883, and in the interval both of the sons had come of age, but it does not appear if the younger had reached twenty-eight or even twenty-five. Turning now to the codicil, its first and main purpose is manifest at once, — to provide for a division of his estate at an earlier period than he had contemplated in his will. He revokes the power to sell his real estate in the city of Philadelphia and directs the trustees upon the death of his wife to divide his estate into four equal shares and to hold one share for each child “ upon the trusts and for the same purposes as are set forth in my will, and for no other trust or purpose whatsoever.” These last words are very significant, they express the inten — 568 — tion to make no new trusts but to continue the old ones. Something was necessary to be said on this subject or it would have been fairly open to inference that the peremptory direction to divide, without restriction, had done away entirely with the trusts in the will after the widow’s death. Let us look at what is left of these untouched by the codicil. All of them remain unchanged during the life of the widow. At her death the separate use trusts for the daughters, and the direction as to the devolution of their shares upon their respective deaths, remain, with the single alteration that the period of division or separation of the common estate is advanced from the death of the mother and daughter both, to the death of the mother only. As to the sons, except the provision for the loan at twenty-one the trust by the will was to continue for thfe whole share during the mother’s life and until each should reach twenty-five, then for one half until he should reach twenty-eight, and then for one quarter for his life to protect against creditors, anticipation, etc. No separation of his share from the common estate was to be made exceptas to the above named fractions at the periods specified. By the codicil the division of the estate in common into four shares in severaltj' is to be made upon the mother’s death, but no change is made in the times of distribution. Each son under the codicil is to get as he did under the will, one half at twenty-five, one quarter at twenty-eight, and one quarter to be held for his life. The trusts of the will continue under the codicil for the protection of this part of the testator’s purpose. It will thus be seen that there was a necessity for the testator in his codicil to refer to the subject to prevent the implied revocation of the trusts in the will; that what he expressed was an intention to preserve those trusts but not to create new ones; that there were amply sufficient of the trusts expressly created by the will, left unaffected by the codicil, to satisfy his direction that the shares of each child should be held upon such trusts; and that to construe the codicil as effecting an entire change in his provision for his sons by putting their whole shares under spendthrift trusts, is not only uncalled for, but would be subversive of his intent not to create any new trusts, expressed in his direction that the shares were to be held for the same trusts and purposes as in his will, “ and for no other trust or purpose — 569 — whatsoever.” The learned master and court were therefore right in their construction of the will upon this question. The matters in the third and fourth assignments of error have been disposed of in Larned’s Appeal, opinion filed herewith, to which reference is made without further discussion here. Appeal dismissed, costs of this court to be paid by appellant.