Hess's Estate
| Decision Date | 14 April 1905 |
| Docket Number | 115-1904 |
| Citation | 27 Pa.Super. 498 |
| Parties | Hess's Estate |
| Court | Pennsylvania Superior Court |
Argued December 7, 1904
Appeal by John A. Ozias, from decree of O. C. Northampton Co. dismissing exceptions to report of George R. Booth, Esq. auditor in estate of Peter Hess, deceased.
Exceptions to report of George R. Booth, Esq., auditor.
The facts appear by the opinion of the Superior Court.
Error assigned was in dismissing exceptions to auditor's report.
Affirmed.
Harry C. Cope, for appellant. -- Where a claim against the estate of a decedent has been put in judgment in the court of common pleas, payment of the claim cannot be resisted by the executors of the decedent at the audit of their account in the orphans' court: McClain's Estate, 180 Pa. 231.
An auditor cannot inquire into the validity of a judgment regular on its face: App. of Second Nat. Bank of Titusville 96 Pa. 460; McNaughton's Appeal, 101 Pa. 550; Meckley's Appeal, 102 Pa. 536.
A judgment in the common pleas cannot be controverted or inquired into in a collateral proceeding in the orphans' court: McClain's Estate, 180 Pa. 231; Dyott's Estate, 2 W. & S. 557; Leeds v. Bender, 6 W. & S. 315; App. of Second Nat. Bank of Titusville, 96 Pa. 460; Bucknor's Appeal, 18 W.N.C. 118; Otterson v. Middleton, 102 Pa. 78.
Nagle's claim is res adjudicata: Sergeant v. Ewing, 36 Pa. 156; Otterson v. Middleton, 102 Pa. 78; Hammett's App., 83 Pa. 392; Bergdoll's Est., 11 Pa. Dist. 702; Anderson v. Young, 21 Pa. 448; Myers v. Kingston Coal Co., 126 Pa. 582; Kapp v. Shields, 17 Pa.Super. 524; Second Avenue, 7 Pa.Super. 55; Hartman v. Inclined Plane Co., 23 Pa.Super. 360; Myers v. Boro of South Bethlehem, 149 Pa. 85; Rauwolf v. Glass, 184 Pa. 237.
John D. Hoffman, for appellee.
Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
Peter Hess died testate in August, 1870, leaving a widow and five sons, all of age. The fund, which was the subject of the account by the executors in the court below, consisted of $ 2,000, derived from personal property, and the interest on the same as it accrued from time to time, and the sum of $ 2,100, the proceeds of the sale of real estate. The appellant, although he claims as an attaching creditor of Josiah K. Hess, an alleged legatee, does not print the will of Peter Hess in his paperbook. It seems to be conceded, however, that under the terms of the will the widow was to receive the income of the $ 2,000 derived from personal property, and hold the real estate, during the term of her natural life; and upon her death the land was to be sold and the proceeds, together with the personal estate, equally divided among the sons. It is an undisputed fact that the widow refused to take under the will, and that thereupon some sort of an agreement was entered into between the widow, all the legatees and the executors, under the provisions of which the will was to be probated, the widow was to enjoy the use of the real estate during her life, and the $ 2,000 in personalty was to remain in the hands of the executors and be invested by them, and the widow was to receive the income, and such part of the principal as her needs might from time to time require. This agreement was made long before Josiah K. Hess became indebted to the appellant, and that it might lawfully be made is well settled: Walworth v. Abel, 52 Pa. 370; Burkholder's Appeal, 105 Pa. 31; Wilen's Appeal, 105 Pa. 121. The widow lived until 1902, and during her long widowhood the executors had, upon her request from time to time, expended the greater part of the principal of the $ 2,000 for things necessary to her maintenance.
The appellant contends that the agreement between the legatees and widow did not authorize the executors to pay the taxes on her house while she lived, and to decently bury and mark her grave after she was dead. The auditor found as a fact, which finding was approved by the court below, that the agreement did authorize these expenditures. The appellant has not printed the testimony as to this agreement, and without having it before us we certainly cannot say that it did not warrant the conclusion at which the auditor arrived. The appellant attempts to excuse his failure to print this testimony upon the ground, " that said agreement was testified to in the prior trial (upon the execution attachment) and was adjudicated and became part of the verdict and judgment in that case." Even if it be conceded that the judgment in a proceeding to which the widow was not a party could be conclusive as to the terms of her contract, the record upon which the appellant relies shows that his judgment was made expressly subject to any payments made, " under and in pursuance of any lawful agreement entered into between said Mary Hess and the legatees of Peter Hess, deceased, prior to the service of the attachment." The seventh, eighth and eleventh specifications of error are dismissed.
The important question in this case grows out of the conflict between the claim of the appellant as attaching creditor, and that of Mrs. Tillie Hess, who claims under an assignment of the interest of Josiah K. Hess in the estate, made to Samuel Nagle. Josiah K. Hess by his deed duly sealed, dated September 19, 1877 and recorded on the day following in the recorder's office of Northampton county, assigned, granted and conveyed to Samuel Nagle all his interest in the estate of Peter Hess, deceased, payable to him after the decease of the widow of said Peter Hess. The auditor found upon sufficient evidence that this assignment was made in good faith and based upon a valuable consideration, and that the rights acquired by Nagle had become vested in Tillie Hess, who appeared before the auditor and claimed the share of J. K. Hess in the fund. John A. Ozias, on January 28, 1878, issued an attachment execution upon a judgment held by him against J. K. Hess, and caused to be summoned as garnishees George K. Hess and J. K. Hess, executors of the will of Peter Hess, deceased, attaching the distributive share of said J. K. Hess in said estate. The garnishees filed answers to interrogatories, which, however, the appellant, although they were offered in evidence, has not printed. The parties seem in the court below to have conceded that the garnishees in their answers to the interrogatories stated among other things that the interest of Josiah K. Hess in the estate had been assigned to Nagle. It would thus appear that both the garnishee and the attaching creditor knew of Nagle's claim, yet neither of them ever took any steps to require or permit him to put in issue the validity of his claim upon the trial of the execution attachment; so far as the evidence discloses Nagle had no knowledge of the pendency of that proceeding. The garnishees entered the plea of nulla bona, and as the result of the trial upon that plea a judgment was entered against J. K. Hess, the defendant, for the sum of $ 1,686.69 and also, " against George K. Hess and J. K. Hess, executors of Peter Hess, deceased, garnishees, for the distributive share of J. K. Hess, defendant and legatee of Peter Hess, less one fifth of any payments made by the executors out of the sum of $ 2,000 for the support of Mary Hess, widow of decedent Peter Hess, during her life, and for repairing the house devised to her, in her lifetime, and in pursuance of any lawful agreement entered into between the said Mary Hess, and the legatees of Peter Hess, deceased, prior to the service of the attachment, (provided, however, that the said executors be acquitted and discharged of $ 186.50, being the amount of indebtedness charged by the estate of Peter Hess, deceased, against said distributive share at the date of service of attachment)." The auditor found that the right of Mrs. Hess, under the assignment of Josiah K. Hess to her father Samuel Nagle, took precedence of the attachment, which finding was sustained by the court below.
The appellant contends that the judgment entered in the execution attachment is conclusive of his right to take the one fifth of the property which was bequeathed to J. K. Hess, subject to the deductions in that judgment provided for, namely payments made to the widow under any lawful agreement and $ 186.50 which had been by the executors advanced to J. K. Hess prior to the service of the attachment. That this is true as between the parties to that issue, and all others who appeared and there submitted their claims for adjudication is well settled: Moore v. Spackman, 12 S. & R. 287; Otterson v. Gallagher, 88 Pa. 355; Otterson v. Middleton, 102 Pa. 78. Whether such adjudication is conclusive upon those who were not parties to and had no knowledge of it is an entirely different proposition. Whenever a judgment is relied upon as conclusive, it may be shown by evidence aliunde not inconsistent with the record that the particular point was not adjudicated: Coleman's Appeal, 62 Pa. 252; Swayne v. Lyon, 67 Pa. 436; Hartman v. Incline Plane...
To continue reading
Request your trial