Levan's Appeal

Mr. Justice Clark

delivered the opinion of the court, March 22d, 1886.

On the 11th November, 1885, Géorge W. Levan and Daniel M. Levan appeared before the Register of Wills of Berks county, each for himself, claiming to receive letters of administration upon the estate of their father Gideon Levan, deceased. On the 14th November, 1885, letters of administration were awarded to George W. Levan, the oldest of the sons of said decedent, he giving bond in $2,000, with approved security, as required by law. From this decision of the Register, Daniel M. Levan entered an appeal to the Orphans’ Court of Berks county, upon the hearing of which appeal the proceedings of the Register were reversed, the letters to George W. Levan revoked, and the matter referred back to the Register, for further proceedings according to law. From the decree of the Orphans’ Court this appeal is taken.

The decedent left no widow; his sons, therefore, constitute the class first entitled, and within that class the law left the selection to the discretion of the Register. It is true the Register was not bound to prefer the elder to the younger son ; seniority gives no absolute right: Shomo’s Appeal, 57 Penn. St., 356. All other things being equal, however, this might incline the balance of judicial discretion : Brubaker’s Appeal, 98 Penn. St., 21. But, having chosen the elder unless some personal disqualification is shown, his decision is absolute, and should not have been disturbed.

But there may he personal incompetency, or other disqualification in individuals belonging to a preferred class. “ In such cases,” as this court said in Cornpropst’s Appeal, 33 Penn. St., 538, “ the Register is at liberty to pass by the incompetent individual and grant letters to others who would not have been entitled to them, but for that incompetency. The act does not define the grounds of disqualification. They are to be sought for in the decisions of the English Ordinary, and in the practice of this state, before the passage of the Act 15th of March, 1832. There is no doubt that insolvency is one. Those interested in the estate are entitled to the security of an administrator’s personal liability, as well as to that of his bail. If letters may be granted to an insolvent person, they have but the single security of the sureties in the administration bond. Besides, likelihood to prove insolvent is a ground for removal under the 22d section of the Act of Assembly of the 29th of March, 1832. Certainly the Register may not appoint one whom it would be the duty of the Orphans’ Court to remove, unless he should give other and further security than the Register may require.”

The learned judge of the Orphans’ Court decided that George W. Levan was insolvent; the- evidence, he says, discloses that, excluding his share of the inheritance from his father, he has no propert}', excepting such as is exempt from execution ; that he has a .number of small debts, some of long standing, and that in the past he could not under process of law have been compelled to pay, and it was upon this ground that the proceedings -of the Register were reversed and the letters awarded to George W. Levan were revoked. The same questions had been previously considered by the Register,who concluded that the suggestion of insolvency was not sustained. That we might determine this question of fact intelligently, we have read with some care all of the evidence in the cause, and from this we learn that George W. Levan is of the age of forty-three years ; that he is by trade a house carpenter, and for fourteen years has been, for the most part, employed in the car shops of the Philadelphia & Reading Railroad Company, and that his average earnings amount to $12 per month. It is clearly shown that he is a sober, steady and industrious man* and that he is in every respect capable of correctly administering the estate. He is not the owner of any real estate, apart from his interest as one of the six heirs of his father, but -has household furniture and property to the amount of about $300. His father’s estate has been estimated at from $6,000 to $6,500; indebtedness to the amount of $700 is conceded, but Daniel M. Levan, the contestant, claims to hold his father’s nóte for $2,000, and Louisa, a sister, whose interest seems to be enlisted with the contestant, has also a claim for $800. The validity of one or both of these claims George has denied, and threatens, at the proper time to contest them, hence this scramble for letters of administration.

At the time this contest began it appears that George W. Levan was indebted to several persons in small amounts. W. J. Lamm testified that George had bought some flour from him, and owed him about $20; but that as he believed George to be an upright and good citizen, he believed the debt would be paid; that he was then working for the witness, and reducing the debt.. It was subsequently shown that this claim was all paid but $3.- Amelia Hart testified that George W. Levan was indebted to his uncle, John Hart, for money borrowed some sixteen or seventeen years ago; that' the note was renewed two or three years ago, and.the debt was never denied. The witness further stated that as George was a sober, honest man, she had no reason to doubt that he would pay the debt. It now appears that this debt has since been fully discharged. Dr. Markley stated that he had a small bill against George, but this has also been paid. Christian liauknecht’ says that George has owed him $11.63 for over a year. The only debts mow remaining undischarged are account of Bauknecht for $11.63, W. J. Lamm, balance $3, and perhaps $5 to $15 to the contestant, Daniel M. Levan.

Insolvency is the state of a person who, from any cause is unable to pay his debts in the ordinary or usual course of trade. A man, to avoid insolvency, is not expected to be able, at once, to put his hand in his pocket and pay every debt he owes; but he must be able to pay, or to provide for, all his debts, as they fall due, in the usual course of business. It is nowhere shown that George W. Levan was unable to pay his debts as they were demanded, and although, he did not claim to own property in excess of $300, it is not shown that legal process was at any time resorted to by any one for collection. He owned but little, it is true, but he owed less, and when objection was taken to his financial state, he was able, without using any part of the moneys or property of the estate, and without borrowing elsewhere, to pay off nearly all he owed. With an income of $12 per month, and property worth $300, besides his interest in the estate, he certainly cannot be said to be insolvent because he owes from $20 to $30.

As an insolvent person in his desperation may be driven to apply the property of the estate in his own relief, public policy provides that he shall not be placed in a position of such peril; but a poor man, if he provide the requisite security, and is sober, holiest, and capable, cannot be denied the right to administer simply because he is poor.

We think, for the reasons stated, that the learned court below was wrong in reversing the decision of the Register, and that the letters of administration committed to George W. Levan should not have been revoked.

The decree of the Orphans’ Court is therefore reversed, the decision of the Register reinstated, and the letters of administration, heretofore granted to George W. Levan upon the estate of Gideon Levan, deceased, are restored.

It is further ordered that the appellee pay the costs of this appeal.