Fromberger v. Greiner , 1840 Pa. LEXIS 218 ( 1840 )

The opinion of the Court was delivered by

Rogers, J.

This is an action to recover a proportional part of the money arising from the sale of certain real property belonging to the estate of John Fromberger, deceased. John Fromberger left some personal and a large real estate, and eight children, of whom George Fromberger was one. George died, leaving one child, who brings this suit, as administrator dé bonis non of his father, After the decease of George, and after the payment of the debts of John, one of the children of John Fromberger the elder presented a petition to the Orphans’ Court, for an inquest to make partition and valuation of the real estate. The inquest decided that partition could not be made ; whereupon the Orphans’ Court directed the administrators of John Fromberger, the elder, to make sale of the property. The money for which this action is brought, is the proceeds of the sale made by the administrator, under the order of the Court.

When real estate, subject to partition or valuation, cannot be divided among the heirs, the Orphans’ Court may order the administrators to sell it. The second section makes it the duty of the Court to confirm the sale, and to decree the estate in the premises so sold, to be transferred and vested in the purchaser, as fully as the intestate held the same at his decease, subject to the payment of the purchase-money. The act further directs the Courts to cause the proceeds of sale, to be distributed according to law and justice. Act oft'2d April, 1804.

On the sale of the premises, and the confirmation of the sale by the Court, the land passes into the hands of the purchaser, discharged from the lien of-debts, subject only to the payment of the unpaid purchase-money, according to the terms prescribed in the order of sale. The money being substituted for the land, the legislature have made it the duty of the Court to distribute the proceeds according to law and justice. And as the administration bond extends only to the personal assets of the intestate, by a subsequent act, when real estate is sold, the law authorised the Court to require security from the administrators, conditioned for the faithful execution of the power committed to them in making the sale, and truly to account for and pay over the proceeds, in such manner as the Court may legally decree. Act of 26th March, 1808.

There would seem, therefore, no necessity to support this action, to prevent a failure of justice, as the case has been foreseen and provided for by giving to the appropriate tribunal plenary authority over the whole subject-matter, who are empowered to settle the distribution of the proceeds, on the principles which appertain to a Court of chancery. If the funds in the hands of the administrators be wanted by the plaintiff, for the purposes stated, he may apply to the Orphans’ Court, who, by the express terms of the act, may distribute the money arising from the sale, or take such order in relation to it, as they may deem just and proper. When the personal estate of the plaintiff’s intestate is insufficient to pay such debts as are a lien on the real estate, and of course on the fund, the Orphans’ Court may order the whole, or so much as may be required, to be paid over to the administrator, exacting from him security for the faithful application of the money, and the return of the surplus to the heir. The same remedy- is open to the latter, who is entitled to receive the fund raised by the sale of the real estate, unless the personal estate should prove insufficient. The course here indicated possesses this great advantage, that the Orphans’ Court may cause all the parties to be brought before them, and can settle the rights of all, however complicated, in one decree, either by ordering the whole, or part of the-money, to be paid to the administrator, on such terms and conditions as they may impose, or by a decree that it should be paid to him, in whole or in part, upon his giving (if the case requires it,) a refunding bond, conditioned for the payment of fut-ure or contingent liabilities. A claim to the money may be made by both the administrator and heir, and the accidental fact, that they are the same person, it is properly conceded, cannot alter the principle. This action will expose the administrator to two suits; and in one, or perhaps in both, we must settle the proportion to which each is entitled; for we cannot admit a right in the administrator to recover the whole fund, where only a small part, may be wanted for payment of debts. If this were allowed, the heir would have a just right to complain, for although lands are assets, they are subject to his control, only when there is a deficiency of personal estate. 'The real estate goes to the heir, subject to be divested in a mode pointed out in the acts of assembly. When sold and converted into money, the money must be payable to the same person who was the owner of the land, for which it is substituted. The heir is placed in no worse situation by the sale; nor are the creditors, who have the same lien on the money as the land. The security of both requires that the administrator should not- obtain possession of the fund, without an order or decree of the Court; as in that case he would receive it without giving security for its faithful application. The course which has been here pursued is attended with great inconvenience, which may be readily avoided by resorting to the Orphans’ Court, who may make such decree as the circumstances of the'case may require, and may enforce a compliance with it by attachment or sequestration; or where there is a claim for money, they may (under a recent act,) order an execution in the nature of a writ of fi-fa. When lands have been sold on an execution, the surplus cannot be recovered at the suit of the administrator; at least, I know of no action of that kind. The usual course is to rule the sheriff to bring the money into Court, which does justice between the parties, by ordering the whole or part of the money to the administrator or heir, and in such proportions as may be just, requiring from each such security, (if the case demands it,) as will protect the rights of all who have an interest in thfe fund. We sometimes support suits, however inconvenient, to prevent a failure of justice; but the common law forms are but ill adapted to administer relief in specific cases; and in all such cases it is desirable to devolve the duty of administering what may be termed equitable relief on the only Court which has the powers necessary to do justice to all the parties, in one sentence or decree. But the parties have not only a remedy in that Court, but it is the only remedy ; for the legislature have declared, that in all cases where a remedy is provided, a duty enjoined, or any thing directed to be done, by any act or acts of assembly, the directions of the act, shall be strictly pursued. The case of Grider v. M'Clay, (11 Serg. & Rawle, 224,) cited in the argument, decides that the surplus money arising from the sale of land, is to be considered simply as money; and so far as this principle goes, it is an authority to the plaintiff in error. But this does not touch the question of remedy; as in the view we have .taken of it, whether it be land or money, it is within the jurisdiction of the Orphans’ Court, who, having ordered the sale, have the exclusive power to regulate and distribute the proceeds, on such terms and conditions, and with such restrictions as the circumstances of each case may require. Hege v. Hege, (1 Penn. Rep. 90,) is the case of a private, and not a judicial sale, and does not interfere with the principles here asserted.

Judgment affirmed.