Bowman's Appeal

• Decision Date: 06 July 1869
• Citation: 62 Pa. 166
• Parties: Bowman's Appeal. Sponsler's Estate.
• Court: Pennsylvania Supreme Court

62 Pa. 166

Bowman's Appeal. Sponsler's Estate.

Supreme Court of Pennsylvania.

May 11, 1869.

July 6, 1869.

May 11th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Appeal from the decree of the Orphans' Court of Cumberland county, in the estate of C. W. Sponsler, deceased: No. 107, to May Term 1869.

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J. Ritner, Jr., and W. H. Miller, for appellant.

L. J. M. Foulke and W. M. Penrose, for appellees, cited Act of February 24th 1834, § 31, Pamph. L. 78, Purd. 287, pl. 95; Stair v. York Bank, 5 P. F. Smith 364; Meiser v. Eckhart, 7 Harris 201; Little v. Walton, 11 Id. 164.

The opinion of the court was delivered, July 6th 1869, by AGNEW, J.

Bowman, the administrator of Rupp, filed the account of Rupp as executor of Sponsler, charging Rupp with his own note and a book account owing to Sponsler, and with some other items of property which had come to Rupp's hands in his lifetime and while he was executor. Exceptions being filed to the account by John Bobb, administrator de bonis non cum testamento annexo of Sponsler, an auditor was appointed, who reported back the account as filed with some changes in the items. The Orphans' Court set aside the report of the auditor, and struck out the entire debit side of the account, on the ground that no assets had come to the hands of Rupp as executor. This was clearly an error.

Rupp had accepted and taken upon himself the duties of the office. Both in England and in this state, the appointment of the testator gives to the executor a right to administer, of which only his own renunciation can deprive him, or his refusal to appear when cited to prove the will and take out letters: Toller's Law of Exrs. 41, 45; Williams's Exrs. 160-169. The executor may make his election to accept, even before probate of the will, by doing such acts as amount to administration: Toller 63, 64. Whatever acts will make a man liable as an executor de son tort will be deemed an election of the executorship: Williams 163. See also Van Horn v. Fonda, 5 Johnson's Ch. R. 383. Renunciation must be evidenced by some act entered or recorded: Williams 165; Commonwealth v. Mateer, 16 S. & R. 416.

The taking of the oath is a final and conclusive act. If (says Toller 43) he appear and take the usual oath before the surrogate, he has made his election, and afterwards cannot divest himself of the office, but may be compelled to perform it. In Miller v. Meetch, 8 Barr 420, these principles are stated and recognised by Judge Bell. In the present case Rupp appeared before the register of wills, made proof of the will, took the oath of office, and letters testamentary were awarded to him by the register. This is proved by the letters themselves, which bear date the same day when the will was proved and oath taken. The register not having time to fill up the papers, told Rupp he would send them by mail or bring them to him. He did bring them a few days afterward, but Rupp was absent from home, and was killed the same day, so that they did not come into his hands. But the judicial act of the register was complete, and nothing short of an appeal could change it: Loy v. Kennedy, 1 W. & S. 396; Shinn v. Holmes, 1 Casey 142. Thus it is perfectly clear that Rupp was the lawfully appointed and accepted executor of the will; was bound to proceed with the administration of the estate, and was liable to the jurisdiction of the Orphans' Court to compel him to settle his account. He could not be treated as a tortfeasor as to the property of the testator then in his hands. Neither trespass, replevin, trover nor assumpsit could lie against him; but, on the contrary, he was bound to hold it for the trust, and to account for it in the Orphans' Court.

What was Rupp accountable for as executor of Sponsler? This is equally clear. He owed Sponsler a note of $500, and a book account of $119.27, which the auditor increased to $152 and was in possession of certain articles of personal property brought by Sponsler to his house when he came there, made his will and died there, and the will remained in the custody of Rupp when he proved it and took the oath. The liability of Rupp as executor for his own debts is beyond all dispute. They were paid in his own hands, and he was chargeable therewith. This was decided before the Act of 1834 was passed: Griffith v. Chew's Exrs., 8 S. & R. 17; Pusey v. Clemson, 9 S. & R. 208; Simon v. Simon, 12 S. & R. 429: Fishel v. Fishel, 7 Watts 44; Grayble v. York and Gettysburg T. P. R. Co., 10 S. & R. 269. But the Act of 24th February 1834, §§ 5 and 6, puts the case beyond all question. The 6th section especially says: "The appointment of any person to be executor shall in no case be deemed a release or extinguishment of any debt or demand which the testator may have against him; but such debt shall be included in the inventory and be subject to distribution like other personal estate." At common law, the appointment of a debtor operated as a release of the debt, but in this state the common law was recognised so far as that the action for it was merged, but the debt must be...