Robinson's Appeal , 1869 Pa. LEXIS 244 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

A decree of sale by the Orphans’ Court is definitive, and it is for this cause an appeal may be taken from it before the execution of the order to sell: Hess’s Appeal, 1 Watts 255. The reason is, that the decree condemns the property to conversion, and the owner’s title to divestiture. The order to the administrator, which follows, is but the process that executes the decree. It is the decree, therefore, which injures the owner. It is manifest when the decree is affirmed by the Supreme Court on an appeal, it returns to the Orphans’ Court for execution simply. Hence, when the Orphans’ Court made the order of sale in this case of September 1st 1868, it was but a renewal of the process under the decree which had been affirmed. It was interlocutory only, and no further final decree took place until the sale was made, returned and confirmed by the court. The estate of the appellants was legally condemned when the decree for the sale was affirmed, and no second appeal could lie from the same judicial sentence, otherwise the sale might be prevented by appeals ad infinitum from every order issued to the administrator in execution of the decree. The appeal of September 1st 1868 was therefore irregular. Eor the same reasons the appeal, after the order of October 20th 1868 to the sheriff to sell, was improper. This order was but the substitution of one person for another to execute the decree. It was also interlocutory, and no final decree upon the sale took place until it was confirmed. This appeal was premature, but the record being before us, we have examined it to see whether there is error in the order of sale issued to the sheriff, and find none. The appointment of the trustee fell within the sound discretion of the court. It is alleged, however, that the order was erroneous, because the deferred instalments of the purchase-money were directed to be paid directly to the. heirs, and not brought into court. This is a mistake; there is no such error in the order of sale, but it simply directs the balance of purchase-money to be secured by recognisance, with approved security, which left the recognisance to be taken in due form of law. A recognisance before a decree for distribution cannot be taken for payment to the heirs directly, but should require the money to be paid into court, or at least to the administrator or trustee, to be brought into court. In the case of Brooks v. Smyser, 12 Wright 86, the legislation on this subject was examined, and it was shown that the jurisdiction over the fund arising from the sale is vested in the Orphans’ Court, requiring it to be brought into court for distribution. Acts still later are confirmatory: See Act 11th April 1863, Pamph. L. 341, and Act of 27th March 1865, Pamph. L. 45. The whole system of Orphans’ Court sales of real estate requires the proceeds to be made subject to the power of the court to protect the interests of creditors, and to determine the persons who are parties, and their shares of the estate in the distribution. In the present ease, however, no injury can arise from the form of the recognisance, as it is not alleged there are creditors, and thirteen years having elapsed since the death of the intestate, the lien of the debts is gone, while the recognisance itself distributes the shares to the heirs in proper proportion. If any error in the distribution can be satisfactorily shown, it is still in the power of the Orphans’ Court to correct it, and direct a new recognisance to be taken, with new or additional securities. The Act of 14th April 1835 requires the Supreme Court to hear and determine appeals from the Orphans’ Courts as to right and justice may belong, and the Act of 16th June 1836 “ to hear, try and determine the merits of such cases, and to decree according to the justice and equity thereof.” There seems to be no just reason for reversing the proceedings in the Orphans’ Court, and they are therefore ordered to be affirmed, and the costs of the appeals to be paid by the appellants.