Mangan's Appeal

OpiNioN by Mu. Justice Green: We are quite clear tbat this case was correctly decided by tbe learned court below. Tbe plain words of tbe act of 1834 prohibit either tbe levy or the payment of tbe decedent’s debt out-of tbe real estate of tbe widow and heirs, unless they bave been brought in by proper notice. In construing this act we held in McCracken v. Roberts, 19 Pa. 390, tbat a sheriff’s sale of tbe real estate of a deceased person on a judgment obtained against the administrators of bis estate, to wdiich his children were not made parties, agreeably to tbe provisions of § 34 of tbe act of February 24, 1834, does not devest tbe title of tbe children. Black, Ch. J., said, p. 395 : “It is admitted by tbe counsel for tbe plaintiff in error tbat tbe sheriff’s deed to Murdoch gave him no title whatever. Tbe want of a scire facias against tbe devisees was fatal.” Tbe necessity of proceeding against tbe widow and heirs by scire facias after judgment against tbe administrator was fully pointed out in tbe elaborate opinion of Kennedy, J., in Murphy’s Appeal, 8 Watts & S. 165, and confirmed in Atherton v. Atherton, 2 Pa. St. 112. In Sample v. Barr, 25 Pa. 457, we held tbat § 34 of tbe act of 1834 is a rule of action, and not of lien, tbat tbe debt must be established against the widow and heirs or devisees before it is levied on tbe real estate of tbe decedent, and tbat a sale without a compliance with tbe act in this respect will confer no title on tbe purchaser. Against these decisions it is of no avail to cite cases in which heirs, vdio have assented to, or participated in, or accepted tbe results of, a sale of their real estate [276] made upon a judgment against tbe administrator only, are beld to be estopped from questioning the validity of the sale after-wards. All those cases depend upon their special circumstances of estoppel. There was nothing of that hind in this case. The assent of the widow to the sale under the judgment against herself as administratrix, by means of which she procured a conveyance of the title to herself, most certainly could not devest the estate of the heirs. Riland v. Eckert, 23 Pa. 215, is of no assistance to the appellant, because in'that- case the original judgment was obtained against the decedent in his lifetime; and the act of 1834 did not apply. But Woodwaed, J., in delivering the opinion, fully recognized the cases above cited and said, speaking of the act of 1834: “It has not been applied to judgments obtained in the lifetime of the decedent, for they were not within the mischief; but wherever a title, derived through a judgment against the personal representatives, has been set up to defeat the heirs or dev-isees of a decedent, it has been required to conform to the statutory rule. Such were Keenan v. Gibson, 9 Pa. 249, and Mc-Cracken v. Roberts, 19 Pa. 393, and other cases, which rule that a sheriff’s sale on such a judgment, where the widow and heirs or devisees have not been made parties, does not devest their title.” It is argued that the appellee in this case being only a creditor of the decedent, and not an heir, must be regarded as a stranger and therefore not in a position to invoke the benefit of the act of 1834. We cannot assent to that view. Creditors of decedents are not strangers to their estates, but have by law a right to intervene and require the estates to be sold even where the widow and heirs or representatives refuse to do so. Their claims to their debtor’s estates are indeed superior to those of the widow and heirs. But in point of fact the party proceeding for the order of sale in this case is John Mangan, a son and heir of the decedent; and hence the contention has nothing to stand upon. Decree affirmed.