Battersby v. Castor

Opinion by Mr. Justice McCollum:, Benjamin S. Haigh died in June, 1871, testate, leaving to survive him, his wife and four children. By his will executed in May and proved in July of that year he appointed his wife and the plaintiff in this suit his executors with power to sell his real estate. They sold the farm, but did not deem it for the best interest of the wife and children to sell the land now in dispute. As the children came of age they conveyed their interests in this land to their mother, who on April 20, 1892 sold and conveyed the same to Allen Waters for the consideration or sum of one thousand dollars, the payment of which was acknowledged in the body of the deed, and in the grantor’s receipt indorsed thereon and signed by her in the presence of two witnesses. Waters has the title thus conveyed to him, and Castor, who is in possession of the land, and against whom this suit was brought, is his tenant. The plaintiff in November, 1886 filed in the orphans’ court his account as executor, which was confirmed finally in January, 1887. The account so confirmed showed a balance in his favor of |907. On December 8, 1894, the orphans’ court, on his petition, ordered that a writ of fieri facias issue for the collection of this balance. The writ was issued and returned levied on the land in question. On June 4, the same court, on the petition of the same party, ordered that a writ of venditioni [559] ■exponas issue to sell tbe land, and on this writ tbe land was sold to the plaintiff on July 1, 1895, for $50.00, and he, having received a sheriffs deed for the same, brought this action for the possession of it. He contends that by the final confirmation •of his account and the proceedings had upon it, as we have detailed them, he has acquired a valid title to the land. He also contends that Waters acquired no interest in it by the deed of April 20,1892. He seems to base the latter contention on the will which he claims vested the title to all the real estate in the executors. It is true that the executors were authorized by the will to sell the real estate and to' convey the same to the purchaser or purchasers of it. The power thus given was a discretionary power which did not, by itself, convert the realty into personalty. It was never exércised upon the land in question. A sale of this land was not deemed by the executors for the best interest of the testator’s wife and children. It was not, therefore, made. It is twenty-six years since the death of the testator, and eight years past the time appointed by him for the division of the remainder of the estate among his children. After the youngest child came of age they were entitled by the terms of the will to the remainder of the estate, which was the land in suit. They conveyed their interests in it to their mother and she, as we have seen, conveyed it to Waters. By the deeds from the children she acquired a title to the land which the plaintiff, her coexecutor, cannot defeat bjr the exercise of any power given by the will. This title passed to her grantee by the deed of April 20,1892. It is a valid title against the plaintiff if it was not divested by the sale on his claim against the estate. The account shows the nature of the claim on which the land was sold. From it we learn that every item of it on the credit side, except one, was paid prior to July, 1878, and that the excepted item represents cash paid to a doctor on the 12th of March, 1884. There is nothing on the face of it tó justify an inference that a single item of it was a lien on the land when it was filed. If there was a judgment against the decedent it was a lien on the farm which the executors sold to Eastburn, and was presumably paid from the proceeds of the sale of it. Presumably too, the necessary expenses of administration, in560 eluding reasonable compensation for the services of the executor, were paid from the general assets. These inferences or-presumptions are not rebutted by the account or the testimony of the plaintiff. The confirmation of the account did not create a lien on the-real estate. It was an adjudication that the account as stated was correct, and that the balance shown by it was- due from the decedent’s estate to the accountant. The existence of the debt and the liability of the land for it were distinct matters. If the lien of the debt on the land was lost before the account which was adjudicated was filed, the adjudication did not charge the land with it. In a suit against an executor on a note of the decedent not barred by the statute of limitations there may be a recovery, although the lien on the land of the debt represented by it, was extinguished by the act of February 24,1834, before the suit was brought. In such case the judgment obtained in the suit is not a lien on the land. According to the testimony of the plaintiff the balance shown by his account represents money he loaned to the decedent and money he paid to other creditors of the estate in satisfaction of their claims. He therefore had the rights of a general creditor-who loses his lien on the real estate of the decedent at the expiration of five years from his death, if the provisions of the act of 1834 in regard to the preservation and continuance of it are not complied with. See Smith v. Wildman, 178 Pa. 245, and cases cited therein. The argument that the lien of the debts was preserved by the will without limit as to time has nothing tangible to support it. A sufficient answer to it will be found in Trinity Church v. Watson et al., 50 Pa. 518. Judgment affirmed.