Everman's Appeal

67 Pa. 335, 1871 Pa. LEXIS 110

• Court: Supreme Court of Pennsylvania
• Decided: February 9, 1871
• Status: Published

Opinion

The opinion of the court was delivered,

by Agnew, J.

This is an appeal by a creditor from a decree of the Orphans’ Court ordering the sale of real estate for the payment of the debts of a decedent, and among them his own. It may be, that none of the debts are liens on the real estate of J. W. Logan, deceased, but the only parties interested in that question are not here contesting the order of sale. The heirs make no objection and the administratrix avers that there are debts having liens. A creditor, John W. Everman, supposing that he has a judgment which will estop the heirs from denying the lien of his debt, and therefore that he can make a sheriff’s sale to pass the title, if he be permitted to proceed upon his judgment, asks the Orphans’ Court to vacate its decree and appeals, because it would not. But it is evident, that, if he be a creditor with an unexpired lien, the Orphans’ Court sale will be a good one and he will be entitled to the proceeds, if there be no other lien creditors. The administratrix is the proper person to make the sale, and special provision is made by the Act of 26th February 1834, §§ 35, 36, to restrain a creditor from proceeding to sell by execution, and to compel the administrator to proceed in the Orphans’ Court. The policy of the law is to carry the settlement of the estates of decedents into that court, where the creditors as well as the heirs can come and contend for their rights, and if need be, assail the rights of others to recover, if their claims be unjust: Kittera’s Estate, 5 Harris 416; Bull’s Appeal, 12 Harris 286. It is evident, therefore, that as a lien creditor, John W. Everman is not injured by the order of the Orphans’ Court and has no right to appeal from it; the order of sale being for his benefit, and an appropriate means of con-, verting the real estate into money on payment of his debt. On the other hand, if not a lien creditor, he has no interest in the question and therefore cannot be permitted to interfere with the proceeding. In any view he is not entitled to appeal.

Appeal dismissed and proceedings ordered to be remitted to the Orphans’ Court, to proceed therein as to justice and right shall appertain; and the costs ordered to be paid by the appellant.