Commonwealth ex rel. McDonald v. Cooper

Opinion bx Mb. Chief Justice Steebett, This scire facias on judgment No 8 of March term, 1888, was issued May 5, 1898, to bring in the widow and heirs of J ames Cooper, deceased, against whose administratrices said judgment was recovered on March 26,1898. The original liability which is thus sought to be enforced against the widow and heirs was assumed by said decedent, James Cooper, as one of three-sureties on the bond of Robert A. McDonald, trustee to make sale of the real estate of John Kittel, deceased, to pay legacies. The present use plaintiffs are the legal representatives of the other cosureties who made payments under the obligation of the bond on which they and Cooper were sureties, and the effort here is to enforce contribution from the estate of Cooper, their cosurety. A brief outline of the facts may conduce to a clearer understanding of the case. Robert A. McDonald, administrator cum testamento annexo of John Kittel, deceased, was appointed trustee to make sale of said decedent’s real estate for the purpose of paying legacies, and gave bond with Daniel Logan, George Pittman and J ames Cooper as sureties. Loretto J. McDonald, a daughter of said decedent, and one of his legatees, was the wife of the trustee. The sale was made, returned and confirmed nisi January 11, 1876. No account was filed until December 16,1887, at which time it is admitted the trustee was insolvent. That account [430] showed a balance of $10,656.78 in the hands of the trustee. Appended to it was a statement showing a distribution of this balance to the parties entitled, except Mrs. McDonald, the trustee’s wife, and concluding thus: “ Leaving in the hands of the trustee, of the amount of bequest to Ettie J. McDonald, under the last will and testament of John Kittel, deceased, the sum of $2,987.78, interest from April 1st, 1876.” James Cooper, one of the sureties, having died March 8,1883, exceptions to the account were filled by Logan and Pittman, the surviving sureties. These exceptions were not confined to the account, as they should have been, but attempted to raise the question of payment or discharge of the balance in favor of Mrs. McDonald. An auditor was appointed “ to take testimony, find the facts and report a distribution, if necessary.” He reported distribution, fixing Mrs. McDonald’s share at $2,987.78, with interest from April 1,1876, the date of confirmation absolute of the trustee’s sale, and further reported that Mrs. McDonald’s distributive share had not been paid. On appeal, etc., interest was disallowed on the ground that the claimant had delayed making demand, etc.: Kittel’s Estate, McDonald’s Appeal, 156 Pa. 445. On January 23, 1888, suit was brought by Mrs. McDonald against the personal representatives aforesaid of James Cooper, deceased, but judgment (on which this scire facias was issued) was not recovered until March 26,1898. In the mean time the surviving sureties, Logan and Pittman, having been compelled to pay Mrs. McDonald’s claim, were substituted as use plaintiffs, and the record was further amended, by adding the commonwealth as legal plaintiff. On February 28, 1888, a copy of the bond given by the trustee and his sureties was filed in the office of the prothonotar}’-, with the view of obtaining a lien on the real estate of which Cooper, the deceased surety, died seized. On the trial of the scire facias the records above referred to, etc., were put in evidence, and a verdict was directed for the plaintiffs subject to the question of law reserved, whether under all the evidence (none of which was disputed) judgment should not be entered for defendants non obstante veredicto. Under that reservation, judgment was afterwards entered on the verdict in favor of the plaintiffs and against Sarah J. Cooper and [431] Jennie E. Cooper, administratrices of James Cooper, deceased, for the sum of $1,020.68, and judgment non obstante veredicto was entered in favor of the following named defendants, Sarah J. Cooper, widow of James Cooper, deceased, Samual Cooper, Harvey Cooper and Jennie E. Cooper, children and heirs of said decedent. Notwithstanding the able 'and ingenious argument of the learned counsel for appellants, we are not convinced that the learned president of the common pleas erred in holding that the debt in question had ceased to be a lien on the land of which J ames Cooper died seized, and that, upon the undisputed facts, the plaintiffs were not entitled to judgment against said land in the hands of his widow and heirs at law. His conclusions are so well sustained by both reason and authority that little can be profitably added to what is contained in his opinion disposing of the reserved question. It is well settled that, in order to continue the lien of unsecured debts for a period of ten years after the death of the debtor, suit must be brought within five years and duly prosecuted to judgment: Hope v. Marshall, 96 Pa. 395. In that case, speaking of the scire facias to bring in the widow and heirs, etc., it was said: “ It issued more than ten years after the death of the decedent debtor, and the lien of the debt, as against their lands, was barred by lapse of time. The learned judge therefore erred in entering judgment against the plaintiffs in error. It should have been entered against Hope, the administrator, only.” Again, in Allen v. Krips, 119 Pa. 1, in was held that in proceedings to charge the real estate of a decedent in the hands of his widow and heirs, under the act of 1834, the proceedings must be instituted against them within ten years after the death of the debtor. To the same effect are Allen v. Krips, 125 Pa. 504, and other cases that might be cited. There appears to be nothing in the facts of the case before us to take it out of the rule recognized in the cases referred to. In this case, the judgment on which the scire facias was issued was not recovered until more than ten years after suit brought, and fifteen years after the death of James Cooper, the decedent. The present proceeding was of course commenced still later. We find nothing in either of the specifications of error that requires further notice. They are all dismissed. Judgment affirmed.