Wetmore v. Dobbins

Opinion by

Beaver, J.,

The question raised by the record in this case is not one of legal liability but rather one as to the remedy through which such a liability is to be enforced. It is not a question of the liability of one cosurety to another who has discharged the obligation wMch rests upon both. This is conceded and is recognized in many adjudicated cases: Wright v. Smith, use of, 82 Pa. 80; Bailey’s Est., 156 Pa. 634. Neither is it a question of the ultimate liability of the heirs of the decedent to respond to the extent of the assets of the decedent’s estate in their hands to a demand of a cosurety of the ancestor who has paid the debt which rested equally upon both sureties. The only question for us to consider and determine is whether the form of action chosen in this case can be used for the purpose of enforcing such a liability, if it exists.

The action is a foreign attachment in assumpsit brought directly against the heirs of a decedent to enforce payment of or contribution for the one half of the amount of a judgment and costs which had been recovered against the plaintiff in an action upon an administrator’s bond upon which the said plaintiff and the father of the defendants were cosureties. A statement setting forth the facts was filed, to which the defendant demurred, and upon said demurrer the court below entered judgment for defendant.

The 28th section of the act of the 24th of February 1834, (P. L. 78), provides that “ Executors or admimstrators shall have power to commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander, for libel and for wrongs done to the person, and they shall be liable to be sued in any action, except as aforesaid, which might have been maintained against such decedent, if he had lived.”

The provisions of this act of assembly have been uniformly construed in practice to limit the right of instituting suits which might have been brought for the enforcement of a contract against a decedent in bis lifetime to his executors and administrators. It is true that the heirs of a decedent may be charged with liability for the debts of a decedent but this can be done only by scire facias or notice after judgment has been obtained or suit brought against the executors or administrators in the manner provided in the statutes relating thereto. The appellant, who was the plaintiff below, has shown no statutory authority and no judicial recognition of power outside a statute to bring suit directly against the heirs of a decedent for the recovery of a debt due from said decedent. We know of no such authority. If for any reason it was impossible to pursue the legal representative of the decedent, an administrator d. b. n. c. t. a. could have been raised and the liability of the decedent’s estate determined in an action against such administrator.

We are not called upon to determine how a judgment rendered against the administrator in such case could be enforced nor how the assets of the decedent’s estate in the hands of the heirs could be reached. It is enough for our present purpose to determine that the decree of the court below in entering judgment upon the demurrer was correct. This we are compelled to do and the judgment is, therefore, affirmed.