Appeal of Esterly et al.
| Decision Date | 30 March 1885 |
| Citation | 109 Pa. 222 |
| Parties | Appeal of Esterly et al. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent
APPEAL from the Orphans' Court of Berks county: Of January Term 1885, No. 371.
D. E. Schroeder and D. & J. N. Ermentrout, for the appellants. —The decree of the Orphans' Court of Montgomery county adjudicates nothing as to the real ownership of the fund for distribution. On the face of the record the court expresses its doubts as to whether Joseph H. Gery were alive or dead, and the question is expressly left an open one. Nor did the appointment of a trustee durante absentia adjudicate the question. It was improvidently made, the petition setting forth facts from which the legal presumption that Joseph H. Gery was dead inevitably arose. But even if the trustee thus improvidently clothed with power by the court had under color of law legally obtained the fund, the fund having been in point of actual fact wrongfully obtained, the trustee can and ought to have been ordered by the court to turn over the fund to the rightful owners. The Act of April 11th, 1879 (P. L. 21), under which the court improvidently appointed the trustee, does not give title to property. The proceeding is an exparte one, but the simple affidavit does not preclude the rightful owner from asserting and proving title. The trustee simply becomes the custodian of the fund, and under the latter part of section 1 of the Act, "shall be under the control and direction of the court." He is the creature of the court, and can and ought to be controlled by the court, when, under the power of the court, he takes into his hands the money of another, and can be directed and compelled to surrender. In assuming, therefore, that the question of the ownership of the fund for distribution had been formerly adjudicated, the court below erred. It was free to award the fund to the parties legally entitled thereto, viz.: the minor children of the absentee.
A. B. Longaker and J. K. Grant, for the appellee.—The Orphans' Court of Berks county, in ordering a distribution of said estate, adjudicated that the death of Joseph H. Gery had occurred, and the Auditor, in making the distribution, was bound to make distribution of said funds of the estate, first, unto the creditors of the decedent; and second, balance, if any, unto the heirs. The fund, therefore, being in the hands of the trustee as the estate of Joseph H. Gery, was properly distributed as such estate by the Auditor, and to adopt the theory of the appellants would be to ask the Orphans' Court of Berks county to review the action of the Orphans' Court of Montgomery county in a matter wherein the latter court had jurisdiction. The decree of the Orphans' Court of Montgomery county directing the payment of the fund unto the trustee is final and conclusive as to the Orphans' Court of Berks county, and to hold that the appellants can set aside this decree in the present proceedings would be authorizing a court of co-ordinate jurisdiction to open, revise, or correct the decree of another court of similar jurisdiction. The estate of Joseph T. Gery, as claimed by the appellants, cannot be distributed in Berks county, nor has the Orphans' Court jurisdiction over that fund. It obtained the money of a living person, it holds it as such, and must distribute it as the estate of the person for whom it was received. The appellants do not claim the fund in question as heirs of Joseph H. Gery, and, therefore, claiming adversely to the trust fund, have no status, and are in no position to interfere with the distribution made by the court: McBride's Appeal, 22 P. F. S. 484; Moulson's Estate, 1 Brews., 296.
On the 13th May, 1870, Joseph H. Gery disappeared from his home in the city of Reading, leaving his wife, Elizabeth Gery, and four daughters, Sarah, Anna, Mary, and Lucy E. Gery, and has not since been heard from. On the 17th May following, R. B. Longaker & Son brought suit against him, in the Common Pleas of Berks county, and, on the 30th June, 1870, obtained judgment by default for $15.66; this judgment was subsequently revived by scire facias, judgment having been taken by default after two returns of nihil habet. Although the wife and children of the defendant continued to reside in the city of Reading, the writs of scire facias were not served upon them, nor was a copy left at the dwelling house, in the presence of any adult member of the family.
On the 11th March, 1879, Joseph T. Gery, who was the father of Joseph H., died intestate, possessed of a considerable estate, real and personal, in Montgomery county. After his decease, upon petition of certain of his heirs at law, an inquest of partition was awarded, by the Orphans' Court of that county, as to his realty; the petition set forth, inter alia, as follows: "That said Joseph T. Gery died intestate on March 11th, 1879, leaving surviving him no widow, but four children, to wit: Amanda E. Gery, Jesse H. Gery, Thomas H. Gery and Joseph H. Gery, but the said Joseph H. Gery has been absent from his home and unheard from since the 13th May, 1870; that the said Joseph H. Gery has a wife or widow living, named Elizabeth, and had living the following named children, to wit: `Sarah,' &c., `all minors, none of whom have guardians,'" &c. The court thereupon appointed Joseph Fornance guardian ad litem for the four minor daughters of said Joseph H. Gery, and the case was so proceeded with, that on the 13th October, 1879, the heirs were called to accept or refuse the purparts reported by the inquest. Jesse H. Gery and Thomas H. Gery responded to the call, but the record recites, that "Joseph H. Gery, third eldest son and heir of said decedent, on being called failed to appear, and it not being satisfactorily proven to the court whether the said Joseph H. Gery was living or dead, directed that Joseph Fornance, guardian ad litem for the children of said Joseph H. Gery, should be called, &c., and said guardian being called, declined, &c." The said purparts were then adjudged to said Jesse and Thomas H. Gery at the valuation, and they were directed to give bonds with security in double the amount "coming to each of the other heirs," which was done accordingly. The obligors in the bonds, given to secure the shares that of right would have belonged to said absentee, if living, "are...
To continue reading
Request your trial
-
In re Freeman's Estate
...Pa. 389), the children now living and the estates of those deceased, including the son about whose death the controversy arose: Esterly's App., 109 Pa. 222; Sherwood's 206 Pa. 465. On exceptions to the adjudication, ASHMAN, J., modified the conclusion of the auditing judge as to the distrib......
-
A. O. U. W. v. Mooney
...Ins. Co., 62 Mo. 26; John Hancock Mutual Life Ins. Co. v. Moore, 34 Mich. 41; Mutual Benefit Life Ins. Co. v. Martin, 108 Ky. 11; Esterly's App., 109 Pa. 222. Doing what one is legally bound to do cannot be a consideration to support a promise: Swaggard v. Hancock, 25 Mo. App. 596; Wimer v.......
-
Continental Life Ins Co. v. Searing
... ... Pennsylvania cases (Burr v. Sim, 4 Whart. (Pa.) 150, ... 33 Am.Dec. 50; Bradley v. Bradley, 4 Whart. (Pa.) ... 173; Whiteside's Appeal, 23 Pa. 114; Esterly's ... Appeal, 109 Pa. 222; Welch's Appeal, 126 Pa. 297, 17 A ... 623; Mutual Benefit's Petition, 174 Pa. 1, 34 A. 283, 52 ... ...
-
Baker v. Fidelity Title & Trust Co.
...Whiting v. Nicholl, 46 Ill. 230; Sherod v. Ewell, 104 Iowa, 253; Foulks v. Rhea, 7 Bush (Ky.), 568; Whiteside's App., 23 Pa. 114; Esterly's App., 109 Pa. 222; Rhodes's Est., Pa.C.C. 386; William's Est., 8 W.N.C. 310. Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ. OPIN......