Beeber's Appeal

• Decision Date: 06 March 1882
• Citation: 99 Pa. 596
• Parties: Beeber's Appeal.
• Court: Pennsylvania Supreme Court

99 Pa. 596

Beeber's Appeal.

Supreme Court of Pennsylvania.

February 13, 1883.

March 6, 1882.

February 13th 1883.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

APPEAL from a decree of the Court of Common Pleas of Lycoming County: Of January Term 1882, No. 114.

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Clinton Lloyds (with whom was W. E. Crawford), for the appellants.—An administrator is not fully qualified to act as such until he is sworn: Miller v. Meetch, 8 Barr 417; Bowman's Appeal, 12 P. F. S. 166; Gardner v. Gantt, 19 Ala. 666; Echols v. Barrett, 6 Ga. 443; Cleveland v. Chandler, 3 Stew. (Ala.) 489; State v. Price, 21 Mo. 434.

The record is not such a record as cannot be contradicted: Fleming v. Parry, 12 Harris 47.

It may be explained: Lowry v. McMillan, 8 Barr 157. The bond itself shows one date, the record another; clearly, the date in the former must prevail: Vincent v. Huff, 4 S. & R. 298.

The register's docket of Lycoming county is not a record of anything. The Act of April 29th 1844, Pamph. L. 527, is a special Act merely.

W. H. Armstrong and J. A. Beeber, for the appellees.—The right of administration was complete on March 4th. The record shows this. The parol evidence to contradict the record was inadmissible. The function of the register in granting letters is judicial: Loy v. Kennedy, 1 W. & S. 398; Heron's Estate, 6 Phila. 86; Carpenter v. Cameron, 7 Watts 59; Holliday v. Ward, 7 Harris 489.

The act of the register was complete when he granted administration. The record shows that this act was done on March 4th, and the record cannot be contradicted: Hagerman v. Salisberry, 24 P. F. S. 280; Roy v. Townsend, 28 P. F. S. 329; Eyster's Appeal, 4 Harris 372; Selin v. Snyder, 7 S. & R. 171; Moorhead v. Commonwealth, 1 Grant 214; Kennedy v. Wachsmuth; 12 S. & R. 171; Kendig's Appeal, 1 Norris 68; Miltimore v. Miltimore, 4 Wright 151.

The general Acts of March 15th 1832, and June 17th 1839, require registers to keep records.

That Kelley became the administrator either on the 4th or 5th is not disputed; but even assuming, for the argument, that his functions were not fully vested until the 5th, still, when they became perfected, they relate back to the time when they were in fact granted, which, it is not disputed, was on the 4th: Leber v. Kauffelt, 5 W. & S. 446.

Mr. Justice STERRETT delivered the opinion of the court, March 6th 1882.

The parties to this contention claimed the fund in court by virtue of attachments in execution issued on judgments which they had respectively obtained against Edward Lyon, a mortgage creditor of John Fox, then deceased. After service of the attachments, the mortgaged premises were sold by the sheriff and the proceeds brought into court for distribution. The fund was awarded pro rata to the judgments of the appellees, whose attachments were issued March 4th 1878, and served same day on Jeremiah Kelley, administrator of John Fox. Appellants' attachment was not served until the following day, and was therefore postponed to the prior attachments, unless they were void for want of proper service. It is contended by them that such was the case, because, they say, there was no personal representative of John Fox until after the fifth of March, and consequently no one on whom the writs could be legally served before that date. If they are correct in this position, the assignments of error should be sustained.

The record, made by the register at the time, in the docket kept for that purpose, shows that on March 4th 1878, letters of administration on the estate of John Fox, deceased, were granted to Jeremiah Kelley, who on same day gave bond with William Frantz and Daniel Steck as sureties. From an inspection of the record and the bond bearing the indorsement, "filed March 4th 1878," no one could doubt that Mr. Kelley was the proper person on whom to serve attachments in execution. It is to such records as this that creditors and others interested must resort for information. They are not required to call upon the administrator for the purpose of verifying the register's record of his official action. As was said in Miller v. Meetch, 8 Barr 421: "The register of wills is a judicial officer, having an official seal, and required by usage, as well as the tenor of the statute regulating his proceedings, to keep a record of his acts and doings. These are public records importing verity, and as such receivable in evidence before other tribunals." It is expressly made the duty of every register "to keep a minute-book, duly indexed, in which shall be entered minutes showing what papers have been filed in his office," &c. (Purdon 1252, pl. 24); and also, "to make and certify under the seal of his office, true copies of all bonds, inventories, accounts, actings and proceedings whatsoever, remaining in his office," &c.: Purdon 1254, pl. 8. This involves the...