Messmore ex rel. Messmore v. Williamson

41 A. 1110, 189 Pa. 73, 1899 Pa. LEXIS 604

• Court: Supreme Court of Pennsylvania
• Decided: January 2, 1899
• Docket: Appeal, No. 204
• Status: Published

Opinion

Opinion by

Mb. Justice Feel,

The exceptions upon which the assignments of error are based rest on purely technical grounds, and were taken at the close of the trial when the opportunity for amendment had passed. The omission to make the administrator a party defendant in the scire facias to charge the lands of the decedent with the payment of his debts was not, under the facts of the case, fatal to the proceeding. The administrator was also an heir, and as such was made a defendant, and had full notice of the proceeding, and he is not here complaining. In the body of the writ the parties to the judgment, its date, number and term all fully appear. In his representative capacity the administrator could have made no defense, for while the judgment is prima facie evidence only in a proceeding to charge the land, it is conclusive as to the personal estate: Sergeant’s Heirs v. Ewing, 36 Pa. 156; Paul v. Grimm, 183 Pa. 330. If summoned he could not have defended in the interest of creditors or of the estate generally, and the omission to name him deprived the other defendants of no right. Nor is there any merit in the objection that Archibald Morrison is named in the writ as an intermediate heir through whom the interests of other heirs were derived. The clear purpose of the proceeding was to charge with his debts the real estate of Joseph Morrison, which was in the possession of his heirs or their devisees, and of this purpose the record throughout gave the fullest notice. It would have been better practice to have followed the words of the act of assembly in describing the estate to be charged, but the omission of the word “ real ” could have led no one to suppose that goods and chattels, and not lands and tenements, were meant. While in its popular use the word “ estate ” includes both real and personal property, when used in a strictly technical sense it applies to realty only. In Bouvier’s Law Dictionary (1897) it is defined to be “ the degree, quantity, nature and extent of interest which a person has in real property,” and tins is said to be the proper and technical meaning of the word.

The verdict was for the amount of the judgment “ to be levied of the lands and tenements which are in possession of and held by the defendant and owned in remainder, and which were of the lands and tenements of Joseph Morrison, deceased, subject to the payment of his debts at the time of his death.” This settled every possible doubt as to the nature and extent of the plaintiff’s demand. There was no attempt to obtain a judgment which would bind the defendants personally, and no such attempt if made could have been successful. The defendants were brought into court that they might contest the debt, and any judgment rendered against them would bind only the land in their hands as heirs or devisees, and could not be enforced against them personally: Coyle v. Reynolds, 7 S. & R. 328; Sample v. Barr, 25 Pa. 457; Coulter v. Selby, 39 Pa. 358.

The judgment is affirmed.