Estate of Woodrow

Opinion, Mr. Justice Sterrett : Exactly in what form the “ charge,” out of which the claim involved in this appeal grew, stands upon the records of the court below, does not appear. The effect of the sale made for payment of debts was to divest, not only the estate which was In James Woodrow, deceased, but that of his widow, and vest them in Robert A. Evans. This “ charge ” was undoubtedly part of the price; and the implication is that it was a deferred instalment, secured on the land sold under the order of that court. Assuming, for the purposes of this appeal, that Robert A. Evans became personally liable for the charge, the court below was without jurisdiction, in the form adopted to enforce its payment. Distribution of the personal estate of decedent could only be made upon the audit of the executor’s account in the mode prescribed by statute. There, creditors and legatees, as well as devisees, would have a right to be heard, and it is impossible to anticipate what questions they might raise; while here, they have no status, and may be prejudiced by the decree made. The executor, as such, has nothing to do with ■questions of distribution : Bracken’s Est., 138 Pa. 104. The decree below is not within the purview of the act of May 17, 1866, P. L. 1096. That act has no relation to personal estate, but by its terms gives the Orphans’ Court jurisdiction to enforce payment of money “ charged ” by its order on real estate, “ out of the real estate.” The “ charge ” being admitted, these creditors had a right to elect the remedy provided by the act of 1866. They were not bound to resort to the personal estate first: Sergeant v. Ewing, 30 Pa. 75, 81, and the court below should have decreed accordingly. Robert A. Evans, living, could not have objected, and his devisees have no higher rights. The rights of these creditors are paramount, .and the equities between the devisees and the legatees under the will cannot be adjusted at their expense. The decree of the Orphans’ Court must therefore be reversed, and a decree made in accordance with the original petition, without preju [205] dice to the adjustment of equities as between the devisees and the legatees. Decree reversed, with costs to be paid by the ap- ■ pellees ; and record remitted with instructions to proceed in accordance with the foregoing opinion.