Miller's Appeal , 1853 Pa. LEXIS 139 ( 1853 )

The opinion of the Court, filed was delivered by

Black, C. J.

— This case is not distinguishable in principle from Weiser’s Appeal, (6 Harris 423.) It arises on the same will, and the transaction out of which it grew is precisely similar. It was there decided that an executor who overpays the distributive share of a married woman to her husband, taking the husband’s refunding bond to secure himself, is not entitled to pay himself, or to be paid by his co-executor out of a separate and distinct fund subsequently accruing to the wife, but which was not then demandable.

Did the husband receive or settle for his wife’s contingent interest in the real estate, when be was paid her share of the personal property ? Undoubtedly not. Assuming that he might have sold or released to the executors her claim in the land, or pledged it to make good his bond, it is enough to say that he did not do so. Her interest then was never devested during her life. She died the owner of it in law and equity. The executor is a creditor of the husband for the sum overpaid to him on the personal fund. But the debt is a personal one. It is not a lien on the wife’s land.

In the present ease the husband is living, and the wife is dead. The appellee is her administrator. But this can make no possible difference. If she would have been entitled to it living, her personal representative has just as good a right. Suppose it to be true that her husband is the sole distributee, and that he may ultimately receive this fund, still that is no reason why the administrator should not receive it in the first instance. The representative of the executor, who claims it over the head of Mrs. Miller’s representative, is but a personal creditor of Miller. Against her he has no claim; if he has one against him, let him enforce it. The law furnishes him with effective machinery for that purpose. He can attach it in the hands of the administrator, and he, or some other creditor as honest as himself, may have done so already for aught we know. Besides, the wife may have creditors who are entitled to he paid out of this fund, in preference to her husband or his creditors.

Judgment affirmed.

Lewis, J., dissented.