Estate of Bear

Opinion by

William W. Portee, J.,

George Bear died January 10, 1880, intestate. The report of the auditors upon the account of the administrator was confirmed February 11, 1881, and directed distribution to be made to the first cousins of the decedent. As to the share of Ann Menge, the auditors reportéd: “ This daughter, Ann Bear, the evidence shows, has been absent and unheard of for a period of years sufficient to raise a legal presumption of her death; but fhe evidence does not show whether the legal period, at which the presumption would arise, occurred before or after the death •of the decedent. Therefore, your auditors would award the share of the uncle, Benjamin Bear, to Ann Bear’s administrator, to be appointed.” In the table of distribution the award reads thus: “Ann Menge, née Bear (her administrator), $301.79 (daughter of Benjamin Bear, and uncle, a cousin of decedent).”

It appears that the administrator held back Ann Menge’s share until April 5, 1886. He then drew a check for the face ¡of the award to the order of Philip D. Baker, Esq. (who was the accountant’s attorney), and earmarked the check by reciting that it was for “Menge Bear’s share in George Bear’s estate.” This payment was made on the faith of Baker’s statement that he was the administrator of the estate of Ann Menge, or the attorney of such administrator. This was not a payment in satisfaction of the award. No one but the administrator of Ann Menge’s estate was legally entitled to the money as the record stands. The burden was upon the accountant to show that he had made payment to such administrator, when challenged. That he made payment to some one, who represented himself to be the administrator, is not sufficient. It was for the accountant to see to it that he paid the person entitled. Payment to a stranger is no defense to a claim. Consequently, the accountant is still liable to an administrator, who presents proof of his legal appointment.

The evidence discloses the fact that Ann Menge did not die until April 8, 1893. But the record of the award was not impeached or amended; and a payment had already been made to one who erroneously claimed to be an administrator. There is, therefore, nothing to raise the presumption that payment was ever made to Ann Menge in her lifetime.

We cannot assent to the proposition that the payment made of this distributive share has been approved and is res adjudicata. The evidence in Weaver’s Appeal, 162 Pa. 547, was that Ann Menge’s money had been paid to Baker as administrator of her estate. The only evidence to contradict the statement was that no letters of administration had been taken out in Lancaster county upon her estate. Here, there is a direct attack made on the validity of the payment to Baker. The evidence that no letters were ever granted to Baker is supplemented by proof that letters have been granted to the present petitioner. Furthermore, neither Ann Menge nor the administrator of her estate appeared in the former litigation, which was an attack upon the general decree of distribution. The decision of the court below, affirmed by the Supreme Court, was upon the main question of the right to reopen a distribution directed and consummated under the order of the orphans’ court, after the limitation fixed by the act of 1840, and in the absence of allegation of fraud. It cannot be that a payment to one who exhibited no letters of administration has been held to be a good payment as against one who now comes forward with such letters in his hand, making demand.

The contention that the petitioner is barred by laches is not sound. This is not the case of a failure to demand an account, or to assert rights which have, by reason thereof, been ignored or overlooked. Here is a record by which the right of Ann Menge’s Estate has been determined and preserved. The accountant was not injured or misled by the distributee’s failure to demand payment. His duty was plain. He was required to pay it to a duly appointed administrator. Such a payment would have been a full protection under the compulsion of the decree: Devlin v. Commonwealth, 101 Pa. 278. The report of the auditors warranted him in assuming that Ann Menge was dead. He had no interest in her estate to warrant his application for letters. Indeed, his position as administrator of the one estate prevented his acting personally in the other. The case comes down to this. If Baber had taken out letters, Bowman’s payment would have been a discharge; Baker not having letters, the payment was not a discharge.

The Act of April 8, 1833, P. L. 315, sec. 19, providing that all suits of an intestate’s relations shall be barred in seven years on failure to present a claim, does not apply here. The claim was before the court, inasmuch as an award was made and a decree entered. This act is “ intended to protect administrators .... in the event of the distribution of the estate without notice .... but it never was designed that it should be used for the unjust purpose of- enabling the administrator to put the money .... in his own pocket. The administrator is a trustee for the next of kin, and while a trust subsists, the statute does not continue to run: ” Logan v. Richardson, 1 Pa. 372. Here the trust relation of the accountant continued until payment was made to a legally constituted administrator.

While the accountant must also be held to the payment of interest, we are of opinion that he was entitled to retain the fund for a reasonable time to await the appointment of an administrator. It affirmatively appears that he kept the fund on deposit in bank awaiting the claim of the distributee for a considerable time; and did not apply it to his own use. Under these circumstances, interest should run from one year from the entry of the decree: Walthour v. Walthour, 2 Grant, 102. “ The charge of interest as against an administrator is not a matter of right; a necessary consequence of money being in his hands, but depends on a variety of circumstances, such, for example, as the money being needed for the payment of debts, or other purposes, connected with the settlement of the estate: ” Wither’s Appeal, 16 Pa. 151.

The decree in this case is, therefore, reversed, and it is ordered that the appellee pay to the appellant the sum of $301.79, with interest from February 11, 1882.