Appeal of Reese

Opinion,

Me. Justice Teunkey :

While execution attachments were pending, issued on judgments against Flower Reese to attach money in her hands as administratrix of John Reese, deceased, the administratrix filed her account. The attaching creditors filed exceptions, and an auditor was appointed to dispose of the exceptions and make distribution. These creditors were ostensibly interested, and, though the issues in the respective attachments had not been tried and determined, they were not bound to stand aloof and suffer an incorrect account to be confirmed of course, and the interest of their debtor in the estate be covered up or decreed to belong to other persons. The Orphans’ Court committed no error in allowing the exceptions to be filed and appointing an auditor.

Nor was there error in charging the administratrix with the cash value of the stock. The account purported to be final and included all the property specified in the inventory and appraisement. Neither creditors nor heirs nor other interested persons were concluded by the value fixed by the appraisers.

The judgments against Mrs. Pritchard, née Reese, are conclusive of the amount of her indebtedness to the appellees. It is settled by the decree what amount of money is in her hands as administratrix, and how much is due to herself as widow. The report of the auditor shows that the money due her from the estate is more than sufficient to pay the judgments, exclusive of the $324.90 which she takes because of the death of two of her children. She contends that the issues in the court of Common Pleas should be there tried that she may show the plaintiff is not entitled to recover, notwithstanding there is sufficient money in her hands as garnishee. As the jurisdiction of the Common Pleas had attached prior to the audit, and the garnishee has not voluntarily submitted to the adjudication by the Orphans’ Court of the question already at issue in another court, we are of opinion that she is entitled to a trial of theissues in the Common Pleas.

In Valentine’s Appeal, 3 W. N. 471, it was ruled bjr the Orphans’ Court that before final judgment in the attachment the proper practice is to ascertain what amount, if any, will be payable to the defendant in the attachment, and direct that the executor or administrator retain the amount until the final disposition of the attachment in the Common Pleas. That ruling was affirmed in this court, and it was said: “It is clear that jurisdiction over the attachment belonged to the Common Pleas and not to the Orphans’ Court. If the garnishee has a defence arising in the facts he sets up, that court will determine whether it be sufficient, and a writ of error will bring his case before us.” The decision in that case was on appeal from the decree of the Orphans’ Court that the money be retained till disposition of the attachment.

Here the appellees contend that they are entitled to the decree made in the court below, on the authority of Otterson v. Gallagher, 88 Penn. St., 355, and Otterson v. Middleton, 102 Penn. St. 78. In these cases the question was whether the final decree of the Orphans’ Court, from which no party had appealed, was conclusive of the matter adjudicated. Before the Orphans’ Court the assignee of a legacy claimed the same by virtue of an assignment dated prior to the attachments, and the parties were fully heard. It was held that the issue between the assignee and attaching creditors could not be tried again in the Common Pleas; but it was not decided that the creditor in a pending attachment was bound to submit the issue therein to the Orphans’ Court, or that on demand by the garnishee said court would not order that the money be retained until the disposition of the attachment by the court where the issue was pending.

Additional costs will likely accrue on the attachments, and for that reason the decree will be modified so that the sum due as widow be retained, — the excess beyond the present amount of the attachments is- only $51.86.

Decree affirmed, and modified by direction that the administratrix retain the sum of $649.81, or deposit the same as the Orphans’ Court may order, until the disposition of the issues in the attachments, and then to be paid as said court may order. Appellants to pay costs. Record remitted.