Estate of High

— 234 — KEIM’S APPEAL. Opinion, Mb. Chibe Justice Paxson : It was beld in Keim’s App., 125 Pa. 480, tbat under the will of Esther High, deceased, Isaac H. Keim and DeBenneville Keim took but a life-estate, with remainder to their children respectively. Our attention is now called to the fact that in 1856, the said life-tenants, Isaac H. Keim and DeBenneville Keim, obtained an order of sale under the act of 1853, known as the Price Act, for the purpose of barring contingent remainders, and that the real estate was sold in pursuance thereof. It is claimed that the remainders to the children were contingent, and were therefore effectually barred by the proceedings referred to; that by reason thereof the life estates were enlarged into a fee. This question does not appear to have been discussed either in the court below, or here, in Keim’s Appeal, and will not be discussed now for the reasons hereafter stated. On the death of Isaac H. Keim, in 1884, intestate, his one half of the purchase-money, $2,752.06, was returned to the executor of Esther High, deceased, and was distributed by him to the heirs and next of kin of said Isaac H. Keim, in obedience to the adjudication of the Orphans’ Court. With this money we have no concern. On the death of DeBenneville Keim, in 1886, the other half of said sum, viz., $2,752.06, was in his hands as trustee in the proceedings under the Price Act. Sara L. Keim, the appellant, was executrix and sole legatee under his will. She did not then claim the money as belonging to his estate. On the contrary, she filed her account as executrix of said DeBenneville Keim, in which she charged herself with his share of the proceeds of the sale as due and belonging to the administrator de bonis non, cum testamento annexo, of Esther High, deceased, which account was confirmed, distribution ordered in accordance therewith, and the money actually paid to Abner K. Stauffer, the administrator, etc., of Esther High’s estate. Subsequently, the appellant petitioned the court below for a bill of review and for a re-statement of her account, upon the ground that she had been advised that the sale in 1856 had enlarged her husband’s estate to a fee, and that as his executrix and sole legatee she was entitled to the fund. The court below refused her application, and denied the review. Mrs. Keim — 235 — appealed from this decree, and the case is' reported as Keim’s Appeal, supra. The decree was affirmed here, principally upon the ground that DeBenneville Keim took but a life-estate under the will of Esther High. That is not the only ground, however, upon which that decision can be supported. In the court below, the respondent had filed an answer, and also a demurrer to the petition, alleging that the Orphans’ Court had no power or jurisdiction to grant the relief prayed for. In reference to this, it was said by our Brother Stebbett, in the concluding sentence of his opinion: “ As to the other question, we incline to think the appellee’s demurrer should have been sustained, but the decision of the court being in favor of the appellant, the question is not necessarily before us.” The question was not discussed, because it was not considered necessary. Yet the decision of the court might well have been rested upon this ground alone. Her account had been confirmed, and the money paid out in obedience to the order and decree of the Orphans’ Court. It was then too late to have a review of her account for the purpose of following the money in the hands of the person to whom she had paid it. The act of assembly is explicit that a review shall not be granted after the fund is distributed. For these reasons, it is unnecessary now to discuss the effect of the proceedings to bar contingent remainders under the act of 1853. The account now before us and upon which the present contention arises, is that of Abner K. Stauffer, administrator de bonis non, cum testamento annexo, of Esther High, deceased. The fund for distribution is composed in part of the money paid to the said administrator, under the order of the Orphans’ Court, by Sara L. Keim, executrix of DeBenneville Keim, deceased. This clearly appears by the following debit in the account of the administrator : “ Deceived of Sara L. Keim, executrix of DeBenneville Keim, deceased, as per adjudication filed on her account in the Orphans’ Court of Berks county, and now absolute, $2,667.56.” This money was claimed by the said Sara L. Keim, the appellant, before the auditing judge, upon the ground that it was her money, having been paid to the administrator of Esther High, deceased, in mistake, and in ignorance of her rights. The learned judge rejected the claim — 236 — in this somewhat terse opinion: “ This court has decided several times that her testator had only a life estate in the fund for distribution embraced in this account. The claimant, being dissatisfied, appealed, but took nothing under it: Keim’s App., 125 Pa. 480. It cannot now find any reason for reversing itself, and the Supreme Court which affirmed it.” From this decision the present appeal was taken. The appellant does not claim under the will of Esther High; on the contrary, she claims as the sole legatee, under the will of DeBenneville Keim, a fund which has been judicially determined to belong to the estate of Esther High. The proceedings below and here settle this question beyond all controversy. If we concede that a mistake was made by the appellant, we cannot correct it now. Something is due to the finality of judicial proceedings. The appellant is confronted at the very threshold of her case by decrees of the Orphans’ Court, in full force and unreversed, which are a flat bar to her claim. The fund having been judicially ascertained to belong to the estate of Esther High, it is clear that the appellant cannot claim adversely to that estate. The general rule that no one can claim, in the distribution of a fund in the Orphans’ Court, except through the decedent, as creditor, legatee, or next of kin, is settled and unquestionable: McBride’s App., 72 Pa. 480; Braman’s App., 89 Pa. 78; Gravenstine’s App., 2 Penny. 61; Winton’s App., 111 Pa. 387. The case differs essentially from the line of cases of which Marshall v. Hoff, 1 W. 440, and Miller’s App., 84 Pa. 391, may be said to be typical, which establish the exceptions to this rule, and hold that the fund may be shown to be wrongfully included in the account, either because, though in the name of the decedent, it is really a trust, or because the title is in another person. There is no room for the application of this principle, for the reason, before stated, that this fund has been judicially ascertained to belong to the estate of Esther High. The decree is affirmed, and the appeal dismissed at the costs of the appellant. bower’s appeal. Opinion, Mr. Chiee Justice Paxson : This was an appeal from the decree of the Orphans’ Court — 237 — of Berks county, distributing the fund in the hands of the administrator de bonis non, cum testamento annexo, of Esther High, deceased. The fund-is the proceeds of the share devised by said Esther High to DeBenneville Keim, and which, after his death, was sold and the proceeds brought into this account for distribution. For the purposes of this case we must treat the interest of DeBenneville Keim as a life-estate only, with remainder to his children: Keim’s App., 125 Pa. 480. De-Benneville Keim died without children, and the question now is, to whom is the fund to be distributed ? It is proper to remark as a preliminary that we are distributing the estate of Esther High, not that of DeBenneville Keim. In the devise to Isaac H. Keim and DeBenneville Keim the testatrix uses this language: “ To be enjoyed by the said Isaac H. Keim and DeBenneville Keim during life; and, immediately after their decease, the same shall descend to their children in equal shares, or their heirs, yet so that the children of each only divide between them the share which belonged to their father.” The learned judge below held that although DeBenneville Keim never had any children, yet the estate should go to the heirs of the children, or to those who would have been their heirs had there been children. This sufficiently appears from the following extract from the opinion of the Court: “ If some of the life-tenants died without leaving children, their estates, by the terms of the will, went to the heirs of the children, who, beyond all question, were their aunts and uncles and their heirs. The distribution is made accordingly to the heirs of Mary H. Keim, deceased.” Notwithstanding this, we do not see very clearly how the estate of Esther High is to be distributed to the heirs of Mary H. Keim. As before observed, the devise was to DeBenneville Keim for life, with remainder to his children. Under it he did not take a freehold of inheritance : Keim’s App., supra. The remainder was contingent upon his having children. He had no children, either when the will was made, or when he died. Hence the remainder never vested in any one, and there was no limitation over. It follows that the remainder was not disposed of; it remained in the estate of Esther High, and passed under the residuary clause of her will. In Brown v. Boyd, 9 W. & S. 123, it was held that where in a devise the testator — 238 — grants less than his entire estate, leaving a reversion undisposed of, such reversion will pass under a residuary clause. The residuary clause in the will of Esther High is as follows: “ All the remainder or residue of my estate, of whatever description the same may be or consist of, shall, after all the necessary expenses and the collateral inheritance taxes are paid out, shall be divided into five equal shares or parts, one of which shall be divided between the children of my brother, William High, or their heirs, in manner hereinbefore directed; another of said fifth parts shall be equally divided between the issue of my. deceased sister, Mary Keim, as I have hereinbefore directed; one fifth part to my sister, Susan H. Bo3rer, in manner as is hereinbefore directed; one fifth part to my brother, John H. Nagle, in manner as hereinbefore directed; and one fifth part to my niece, Sarah W. Moers, in such manner as is hereinbefore directed.” With this plain direction as to what should be done with her estate, it is needless to speculate as to the intent of the testatrix. She has . expressed it in language free from ambiguhy. In construing this will, in Keim’s App., supra, the opinion was expressed that this mone3r, which represented the land, reverted to the estate of Esther High, and was to be distributed under the residuary clause of her will. It is true, the question of distribution was not directly involved in that case, and the remark may be regarded as dictum, yet the point was so clear that we did not suppose it would ever be questioned. We are of opinion that the fund in controversy should be divided into five equal parts or shares, and distributed as directed by the residuary clause of the will of Esther High. All the assignments of error are sustained. The decree is reversed; and it is now ordered that the record be remitted to the court below, with directions to make distribution in accordance with this opinion, the costs of the appeal to be paid by the appellees. bandolph’s appeal. Opinion, Mb. Chief Justice Paxson: This appeal is from the same decree as Keim’s Appeal and Boyer’s Appeal, just decided. While the appellant concedes — 239 — that the fund should, be distributed to the thirteen grandchildren of Mary H. Keim, yet he contends that it should be distributed per stirpes and not per capita, as ordered by the court. This is his principal grievance. As we have decided in Boyer7s Appeal that the fund was to be divided into five equal parts and distributed under the residuary clause of the will of Esther High, this appeal is not of much importance and the respective assignments need not be discussed. As the principle upon which the distribution was made is erroneous, we need not consume time with the details. The decree is reversed upon this appeal and distribution ordered in accordance with the opinion in Boyer’s Appeal. Decree reversed at the costs of the appellees; and it is ordered that the record be remitted with instructions to make distribution in accordance with the opinion in Boyer’s Appeal.