Rutty's Appeal

Mr. Justice Paxson

delivered the opinion of the court,

This was an appeal from the decree of the court below making distribution of a fund in the hands of E. T. Fox, committee of Hester Taylor, a lunatic. The committee, after the death of the lunatic, filed his account in the Court of Common Pleas, in which he charges himself with the fund as the property of Hester Taylor. The auditor and the court below treated the fund as the property of George T. Granger, and after the payment of the expenses of the audit, and Mrs. Rutty’s bill for sixty-three weeks board of the lunatic, awarded the residue to the lien creditors of Granger. This was error. The creditors of Granger have no legal claim upon this money. They were heard when his real estate was sold at a judicial sale and the proceeds thereof brought into court for distribution. The judgment bond of Granger conditioned for the support of Hester Taylor Avas a lien upon said real estate. This judgment was in the. nature of a fixed lien, and ought not to have been divested by the sheriff’s sale : Luce v. Snively, 4 Watts 397 ; Moore v. Shultz, 1 Harris 102. The amount could not well be ascertained in dollars, in Avhich it differs from an annuity bond, the value of which can always be fixed by reference to the Carlisle tables. It appears, however, that the parties, the auditor and the court beloAY, have treated the lien of the Hester Taylor judgment as divested. All of the confusion in the case arises from this fact. It is too late noAV to remedy this error, and Ave must decide the case as it is presented. -Upon the distribution of the proceeds of Granger’s real estate it ayouM appear that the auditor, by some process or course of reasoning which does not very clearly appear, ascertained the value of the condition of the bond given to Hester Taylor, for he set apart to meet it the sum of $1394.63, being a trifle more than one-half the penalty of the bond. This sum the auditor directed should “ be impounded in dourt for the benefit of Hester Taylor, the plaintiff in said judgment, to be used by E. T. Fox, her committee, as the court shall direct, for the payment of any claims which said committee as such may he liable to pay, and for the support of said Hester Taylor during her natural life, and at her death any balance remaining to go to the person legally entitled thereto.” The auditor then gave the remainder of the fund applicable to the Taylor judgment to'the next lien creditors of Granger, the appellees in this case. The court below affirmed the auditor’s report, but made no order impounding the fund. On the contrary the order was that “ the sum of $1394.63, being the amount decreed by said auditor, and applied on No. 589, September T., 1870, Hester Taylor v. George T. Granger, be paid over to E. T. Eox, committee of Hester Taylor.” This decree was not appealed from and concludes the judgment creditors, who are the present appellees. It was an absolute order that the fund be paid over to the committee of Mrs. Taylor. The payment to the committee was a payment to her. It was clothed with no trust for the creditors of Granger. It was urged that the order of court was but an affirmance of the auditor’s report, and a mere transfer of the money to the committee as a matter of convenience, instead of impounding it. This is not clear. If it were so I am at a loss to see how it would change the result. All that the auditor directed to be done is implied in the order of the court. The only legal difference is the substitution of the committee as the custodian of the money. The auditor directed that the money should be applied to the support of Hester Taylor during her life, and after her death the balance remaining was to go to the person legally entitled thereto.

This was all surplusage. He merely directs that the money should be applied as the law, in the absence of any such direction, would apply it. In its legal effect it differs in no respect from the order of the court. Neither the auditor’s report nor the decree of the court imply any trust for the creditors of Granger. They had their day in court. When the real estate" of Granger was' sold, by consent of all parties, the lien of the Hester Taylor judgment divested; they came in and obtained nearly half the proceeds applicable thereto, to apply to their subsequent liens. They-could not do this and claim to hold a lien upon the balance of the fund. Having consented to the divesting of the lien of the Taylor judgment and obtained the benefits thereof, they had no right to ask the court below to impress a trust for their benefit upon the fund awarded to the committee. The court below evidently so regarded it. Otherwise the whole fund should have been set apart. Had a trust been intended, it should have been a trust for the whole. Had Mr's. Taylor lived several years the portion set apart for her might and probably would have been entirely inadequate. The whole fund might have been insufficient. As a portion of the fund was awarded to the subsequent lien creditors, and only $1394.63 applied to the Hester Taylor judgment, we regard this sum as the ascertained value of the condition of her bond, and that the order of court awarding it to the committee was an absolute decree to Mrs. Taylor of that amount of money, clear and discharged of any trust for the appellees.

As before observed the committee of Mrs. Taylor charges himself in his account filed as such committee with this money. If he has brought money into his account which in point of fact belongs to some other person, or to some other estate, its distribution, here might not protect him against a claim therefor by the rightful owner. In this proceeding it would seem to be conclusive as to the ownership of the fund. So long as the accountant interposes no objection of this nature, it is not easy to see how any one else can do so.

We are of opinion that the lien creditors of Granger cannot come in upon this fund. Nor is Mrs. Rutty, the appellant, in any better position. Her claim for boarding the lunatic was properly allowed. Beyond that she cannot claim in this proceeding. We are disposing of the account of a committee, not of an administrator. The entire fund, after the payment of proper claims against it, should have been awarded to the personal representatives of Hester Taylor, deceased, by whom when received it can be distributed according to law. It may be necessary to raise up an administration for that purpose.

The decré'e is reversed and set aside, and it is now ordered and decreed that the residue of the fund in the hands of the committee, after the payment of the expenses of the audit, the claim of Mrs. Rutty for board as allowed by the auditor, and the costs of this appeal, be paid to the personal representatives of Hester Taylor, deceased.

Mr. Justice Sharswood dissented.