Clay v. Irvine

The opinion of the Court (Huston, Justice, dissentiente) was delivered by Gibson, C. J. — It seems to have been taken for granted that the property administered by the defendant had been the separate estate of his wife; and that it passed to her children at her death. But the very fact that he administered it, shows that it had become his own. As her separate estate, it could be held only in trust, and the trust account could be settled only by her trustee. If the husband himself were the trustee, he would have had no authority to meddle with the property as her administrator, unless she had left debts to be paid, which is not pretended; for, as administrator, he could collect only choses in action held in her name without the intervention' of a trustee; which, being reduced to possession, would become his own against every person but her creditors. It is pretty clear, then, that the money in contest is not the proceeds of personal property settled to the separate use of the wife. Nor can it well be the proceeds of her land converted since her death; for as such it would have been the property of those to whom the title descended, and could not have been brought into the husband’s administration account, unless he had sold the land by order of Orphans’ Court to pay her debts or maintain her children; and in the latter case there would be no dispute about an allowance. In no other aspect could the balance of the administration account be viewed as the property of the plaintiffs. We have not the account or any document before us to show from what the fund accrued; but there is nothing to show [234] that it is not the proceeds of her property in action reduced to possession since her death; and it was incumbent on the plaintiffs to show that, in order to make out a title. If, then, the defendant succeeded to the property at the death, how is his right to be affected by the settlement of the administration account ? That the property was his own as regards the children, did not exempt him from accountability to creditors. It is for that reason that a husband is required to give bond, like any other administrator, with condition to file an inventory and settle an account. Creditors, therefore, might have cited and attached him had he not voluntarily settled; or sued his bond which would have been forfeited by an omission to settle within the year: and his title cannot be impaired by the voluntary performance of a legal duty. The balance was nevertheless his own, unless there were creditors; and it is not pretended that there was a decree of distribution, as well as confirmation, awarding the money to the children. Such a decree, unappealed from, would doubtless carry it from the father; but fortunately there is none. A transcript of the balance was subsequently filed in the Common Pleas to create a lien for it on the accountant’s real estate; but for whose security ? Certainly for the security of those who had title; and as none could be entitled against the husband but the wife’s creditors, of whom we have heard nothing, the security seems to have been a nullity. The purpose of a transcript is to secure existing rights; not to vest rights in those who had them not; and if the plaintiffs had not title by the decree, they could no more gain it by lodging a transcript with the prothonotary of the Common Pleas than a stranger could do so. It would have been hard beyond measure, had the law suffered the defendant’s title to be devested by an act which he had no means to prevent. Had the money really been held in trust for the children, the evidence proposed would have been properly rejected; for maintenance out of the child’s estate is to be allowed by the Orphans’ Court, and not by the Common Pleas in a collateral proceeding. But as the cause was presented the inquiry was irrelevant; and we reverse the judgment, not for the rejection of the evidence, but for the want of title apparent on the face of the writ.