Williams's Appeal

Mr. Justice Paxson

delivered the opinion of the court, December 30th 1882.

The fund for distribution was paid into court by Henry Pillow, assignee for creditors of Dorothea Frederick, and was raised by a sale of her property. The learned court below erred in assuming that the fund belonged to the estate of Henry Frederick, the deceased husband of the assignor, and awarding it to his creditors. The result led to the anomaly of distributing a deceased man’s estate in the Common Pleas. If, as was assumed, any portion of the fund belongs to the estate of Henry Frederick, deceased, it can only be distributed through proper proceedings in the Orphans’ Court. All of his creditors would be entitled to notice of the distribution. A notice of the distribution of the assigned estate of Dorothea Frederick would contain no warning to them.

The assignment was of the estate of Dorothea Frederick. It purported to convey nothing else. The assignee could make title to nothing else. It appears tire real estate, which is the principal matter of contention, belonged to the estate of the deceased husband of the assignor. The latter, however, had an interest in it, capable of passing by an assignment. The deed from the assignee to the purchaser conveyed her interest only, leaving the property liable to the statutory lien of the debts of Henry Frederick, if any such existed: Knowles v. Lord, 4 Wharton 500; Ludwig v. Highley, 5 Barr 133. The purchaser may, and possibly did believe he obtained a good title. If application had been made at the proper time, and in a proper way for relief, it would probably have been granted. No such effort was made, and the assignee has brought the fund into court as the property of Dorothea Frederick. As the record stands it must he distributed to her creditors. If the assignee has made a mistake and brought the money of some one else into court he may, as we said in a recent case not yet reported, be responsible for his blunder to the parties injured. But so long as he does not ask to have his account reformed, wo are unable to see how the creditors of Henry Frederick, deceased, can come in and claim a fund, which the assignee brings in as a part of the assigned estate. Such a practice would lead to confusion and uncertainty.

The fact that Dorothea Frederick, as executrix of her husband’s estate, subsequently made a deed as such executrix to the purchaser of the real estate, has no bearing upon the question. That is a matter for her to settle in the Orphans’ Court. She has filed her account in that court wherein she has charged herself with the whole of the purchase money, notwithstanding the fact as alleged that she did not receive it. Whether that court will relieve her of this charge is a matter about which we express no opinion. The whole business appears to have been a mass of blunders from the beginning. The law will correct many errors when presented at the proper time and in an orderly way, but there is a limit beyond which it cannot go.

An auditor appointed to adjust and settle the accounts of a voluntary assignee for creditors, is confined to the account between the assignee and the cestuis que trustent. Third persons claiming adversely cannot interfere in the settlement, but must resort to adversary proceedings: O’Kie’s Appeal, 9 W. & S. 156; Jefferis’s Appeal, 9 Casey 39; Wylie & Quail’s Appeal, 11 Norris 196; Strickler’s Appeal, 10 W. N. C. 535; Frankenfield’s Appeal, 11 Id. 373.

Thompson’s Appeal, 10 Harris 16, was cited as sustaining the distribution made below. We do not so regard it. In that case the assignor was indebted to the heirs of Seth Matthews, for money of the estate which he had received as executor and converted to his own use. The heirs were allowed to come in pro rata with his other creditors upon the assigned estate. Here the creditors of the estate o£ Henry Frederick ask to be paid out of the assigned estate of Dorothea Frederick. This presents an entirely different question. Aside from this, I see no trace in Thompson’s Appeal, of any objection to the pro rata distribution. The point was that the heirs of Matthews were not entitled to priority.

What has been said refers more especially to the real estate. It is in the main applicable, however, to the personal estate. If the assignee has sold personal property which belonged to the estate-of Henry Frederick, or collected debts due thereto, and has brought the proceeds into the assigned estate, it does not change the legal aspect of the case. If the property did not belong to the assignor, he could make no title, while his receipt for a debt, due the estate of Henry Frederick, is a mere nullity. The assignee having brought the property into court as the property of the assignor, the creditors of. Henry Frederick can-; not set up an adverse title.

The decree is reversed at the costs of the appellee, and it is ordered that distribution be made in accordance with the principles of this opinion.