Wilkins's Estate

The opinion of the court was delivered by Kennedy, J. The wife of the accountant was one of several specific devisees of certain portions of the real estate of the testator, as also one of several devisees of the residuum of his real estate, not specifically devised; which, with the personal estate, was charged with the payment of his debts; and if necessary for that purpose, his executors were authorized to sell and dispose of it.. The personal estate proved insufficient to pay the debts; and though admitted that the residuum of the real was sufficient to supply the deficiency in the personal, yet not having been sold by the executors for that purpose, and the commissioners of Allegheny county having a judgment against the estate, sued out a writ of fieri facias thereon, by virtue of which the real estate specifically devised to the wife of the accountant, was taken in execution and extended. The accountant at this time, not having become the administrator of the estate, made an arrangement with the commissioners of Allegheny county, and by obtaining time for the purpose, paid off the judgment; some portion thereof before he became administrator, and the residue subsequently. In settling his administration account he claimed to charge the estate with the amount of the money thus paid, and interest thereon from the time of payment. The auditors and the court below thought he was not entitled to have a credit allowed to him for the same in his account, and accordingly rejected it. Some other credits claimed, which were considered by the auditors as depending entirely upon the allowance or disallowance of the amount paid the commissioners of the county, were also rejected. The accountant considering himself aggrieved by the decision of the court, in this behalf, appealed therefrom to this court. The only objection, of any apparent weight, made against the accountant’s being allowed the credits claimed by him is, that it would enable him or his representatives to proceed for the recovery of the amount thereof against that portion of the testator’s real estate which has been specifically devised to others. This, however, by no means necessarily follows; because it would be the duty of whomsoever he may be that shall have the further administration of the testator’s estate, to make sale of so much of the residuum thereof as will produce money sufficient to pay the amount or balance remaining unpaid. It is clear that this ought to have been [136] done originally by the executors of the will, so as to have prevented the accountant from being subjected to the payment of the money to the commissioners in the manner he was: the residuum was the fund appropriated by the testator in his will to that end: and this being the case, his executors ought to have carried it into effect. But their neglect, in this respect, ought not to prejudice the accountant. And if there be no other claims on this fund appropriated to the payment of debts beside his, he or his representatives would be entitled to the whole of it, if requisite to pay their, claim. If, however, there be other claims, the aggregate amount of all which it is not sufficient to discharge, then they may be apportioned; and for the balance coming to the accountant, he or his representatives may look to the specific devisees for contribution. The accountant might, as administrator de bonis non cum testamento annexo, have sold as much of the residuum of the real estate, as would have reimbursed him the money he paid in discharge of the debts against the estate, and in preserving it for that purpose. It could have done no injury to any one, and would have been in strict conformity to the will of the testator. Hence we think that he ought to have credit for the amount of it, with interest thereon, as calculated by the auditors, being equal to 1946 dollars: as also for the further sums of money amounting to 427 dollars 85 cents, being expenses incurred by the accountant in protecting the residuary estate for the payment of debts, and for his services rendered therein; making in the whole, a further credit of 2373 dollars 85 cents beyond the amount allowed by the orphans’ court, which we direct to be given to the accountant. So far, therefore, as the decree of the orphans’ court is changed and altered by this allowance of 2373 dollars 85 cents, as a credit to the accountant, it is reversed, and affirmed as to the residue. This will leave a balance of 2124 dollars 24 cents coming to the accountant, which we consider justly due to him, with interest thereon from the 1st of March 1837. Decree accordingly.