Breintall's Estate

• Court: Pennsylvania Commonwealth Court
• Writing for the Court: STEARNE, J.
• Citation: Breintall's Estate, 26 Pa. D. & C. 408 (Pa. Commw. Ct. 1936)
• Decision Date: 12 June 1936
• Docket Number: 470 of 1936
• Parties: Breintall's Estate

26 Pa. D. & C. 408

Breintall's Estate

No. 470 of 1936

Common Pleas Court of Philadelphia County, Pennsylvania

June 12, 1936

Lewis H. Van Dusen, Jr., and Charles J Biddle, of Drinker, Biddle & Reath, for ancillary administrator.

John C. Gilpin, of Gilfillan, Gilpin &amp Brehman, for executors.

Before Van Dusen, Stearne, Klein, and Bok, JJ.

OPINION

Petition for order to pay over assets.

STEARNE J.

An ancillary administrator cum testamento annexo petitions for an order upon the executors of the domicile to pay over to it certain alleged assets of the decedent which are claimed by the petitioner to be within this jurisdiction, to which petition an answer has been filed. The domiciliary executors seek, by answer filed, to have dissolved a restraining order which prohibits distribution of assets within this Commonwealth.

From the petitions and answers and the agreed stipulation of facts it appears that the decedent, a resident of New Jersey, died testate, on August 31, 1927. The will was duly probated in the State of New Jersey, and letters testamentary thereon were issued to a trust company and an individual, the executors therein named. The trust company is a Pennsylvania corporation doing business in the City of Philadelphia. The individual executor is a resident of this Commonwealth. Upon their appointment, the executors duly filed, in the State of New Jersey, an inventory and appraisement of the personal property of the decedent. They also proceeded, in the administration of the estate, to sell the real estate of decedent. Three parcels of such real estate were located in the City of Philadelphia, State of Pennsylvania. In 1928 the domiciliary executors sold premises at Eleventh and Chestnut Streets, and in 1929 premises Twelfth and Sansom Streets. The third parcel of real estate, located at Thirteenth and Arch Streets, was sold at public auction by such executors on December 31, 1935, settlement made therefor, and deed duly given and recorded to the purchaser.

The stipulation of fact discloses that the domiciliary executors accounted for their administration of the estate in the Orphans' Court of Atlantic County, State of New Jersey, and have distributed, and are still distributing, said assets in accordance with the orders and decrees of the New Jersey courts. While a detailed statement of the testamentary provisions seems unnecessary, it may be recited that, after certain legacies, the residue is held in trust for the benefit of certain annuitants and life tenants, with remainders over to individuals and charities. The legacies were awarded and paid, under decree of New Jersey courts, but the annuity and life tenants' payments are being presently withheld because of the restraining order of this court.

An examination of the record discloses that the ancillary administrator c. t. a. was appointed by the register on February 28, 1936, at the nomination of the mortgagee of the Thirteenth and Arch Streets real estate, as an alleged creditor of decedent. At the argument it was represented that the mortgagee is the only Pennsylvania creditor. It is thus obvious that the chief actor in these proceedings is this creditor. However, the creditor was quiescent from the date of decedent's death on August 31, 1927, until February 8, 1936, when it caused the ancillary administrator to be appointed. Such mortgagee creditor permitted all of the Pennsylvania real estate to be sold and took no steps whatsoever to extend its lien to the other Pennsylvania real estate of the decedent. Because no steps have been taken to foreclose the mortgage, it may well be that, under the provisions of the Deficiency Judgment Act of July 1, 1935, P. L. 503, ultimately such mortgagee will not be regarded as a creditor. However, this situation is not presently before us. To test the status of this alleged creditor, if such proceeding be required, the ancillary administrator should file an account, even though it contains no items of charge and disbursement, and then such question may be determined by an auditing judge.

The administrator c. t. a., upon its appointment, made immediate demand upon the executors to turn over to it all of decedent's property which was in Pennsylvania at the time of the death, or to account to such administrator for the disposition of such property. In particular the petitioner claimed, for the use of the resident creditors, the Pennsylvania real estate or the proceeds thereof hereinbefore referred to. The legal principle upon which petitioner relies is that the will, under its terms, works an equitable conversion, and that, therefore, at law, such real estate is to be regarded as personal property, and as such is liable first for the payment of debts of resident creditors.

The right to ancillary letters is regulated by section 2( a ) of the Fiduciaries Act of June 7, 1917, P. L 447, following section 6 of the Act of March 15, 1832, P. L. 135, and, as was said in Sayre's Execs. v. Helme's Execs., 61 Pa. 299, was designed to prevent " executors or administrators authorized by a foreign jurisdiction, to collect and...