Connelly's Appeal

1 Grant 366

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1856
• Status: Published

Opinion

The opinion of the court was delivered by

Black, J.

— A. was the executor of an estate, and appointed B. his agent, to receive payment of a debt due to the testator. B. got the money and kept it. A. filed his account, probably without knowing that the debt had been paid to his agent, and did not charge himself with it. His account was confirmed — he was discharged from the trust, and B., the agent who had received the debt in question, was appointed administrator de bonis non. C., who is an heir and distributee, brings this bill of review against A., to compel him to account for the debt received by his agent and successor.

If this money had been actually received by A., the first executor, and charged against him in his account, it would have been his duty to pay it to his successor in the trust. That successor already had it, and the judge of the court below said most truly, that it was not necessary for him to pay over with one hand and receive back with the other. Every claim that A. ever had upon B. for the money in question, was extinguished by the discharge of the former and the appointment of the latter as administrator. Why did the parties interested not pursue B., the administrator de bonis non ? Nobody can deny that he was both legally and equitably bound for it. But they pass him by, and attack a man who, in point of fact, never received it; one who did his duty by leaving it at the very place where he was ordered by the court to put it. If this account were opened, and A. were charged with the sum claimed by the petitioner, he would be compelled to suffer a dead loss of the whole amount. He could not possibly recover from B., who has a most undoubted right to retain it — a right conferred upon him by virtue of his office as administrator, and by a special decree of the Orphans’ Court. The appellee would thus be pressed on one side by a decree commanding him to pay a specific sum of money, and on the other by a different decree, forbidding him to touch it. But suppose we could get clear of this difficulty, or shut our eyes to the injustice of it, what good would it do to the distributees ? To charge A. with the money would not entitle them to get it from him. It is well settled, that a discharged executor or administrator is not to make distribution, but simply to pay over the fund to his successor. They must resort to B. at last. The law abhors this travelling in a circle, which brings the parties around to the same place they started from, without any result except delay, weariness and the payment of unnecessary tolls.

The case of Little v. Walton, 11 Harris, 164, is conclusive of the principle on which this one turns.

Decree affirmed.