Administration of Estates.

ment, however, obtained against joint defendants, when one was dead at the time, is not absolutely void. (a)

Under the act of 1834, land cannot be reached in the hands of the widow and heirs, without making them parties in some way. The proper mode of procedure in actions, whether commenced before or after a decedent's death, is to obtain judgment first against the personal representatives, which is sufficient for satisfaction out of the personal assets. Having thus obtained judgment, if the creditor wishes to charge the land, the next is to make the owners of the land parties by scire facias. These will be admitted to contest the suit on original grounds. If the plaintiff be then successful, he can have execution on a judgment de terris. (b)

Administration bond.-The bond given by an administrator on his entrance upon his duties, is held to the use of such parties as may be interested in the fund in his hands, and for any neglect of duty, such as non-payment of a debt, or a devastavit. (c) Suit may be brought upon it by the commonwealth to the use of such parties, and after scire facias upon the judgment to determine the amount of the claims, the party first suing will be entitled out of the penalty to the whole of his claim, even to the exclusion of others. (d) Judgment may be so obtained against both the administrator and his sureties. (e)

Orphans' Court.-The Orphans' Court has the control of the conduct of executors and administrators; and may remove or discharge them. (f) It has also jurisdiction in the distribution of assets among creditors, when the estate is insolvent, and auditors may be appointed for the purpose. This power is exercised upon the application of any creditor, executor, or administrator, or party in interest. (g) If the estate be solvent this jurisdiction

(a) Warder v. Tainter, 4 W. 281.

(b) Act of 1834, Purd. Dig. 478; Murphy's Appeal, 8 W. & S. 165; Benner v. Phillips, 9 W. & S. 131; Atherton v. Atherton, 2 Barr. 13.

(c) Yard v. Lea's Ex'rs, 3 Yeates 345.

(d) Act of 1836, Purd. Dig. 145; Dallas v. Chaloner's Ex'rs, 3 Dall. 501; 4 Dall. 106, in notis.

(e) Zeigler v. Sprenkle, 7 W. & S. 173.

(f) Purd. Dig. 885, etc.

(g) Act of March 29, 1832, §19; April 14, 1835; April 13, 1840; Purd. Dig. 885, etc.

Administration of Estates.

cannot be exercised, (a) except where the proceeds of real estate have been paid into court. (b) It may also entertain exceptions to auditor's accounts. (c) But a creditor can never come into the Orphans' Court to compel payment of a litigated debt. (d)

Registers. The registers of the different counties have jurisdiction within the same to receive the probate of wills, to grant letters testamentary and of administration, to pass and file the accounts of executors, administrators and guardians. (e)

Persons entitled to administration.—When administration is granted of the estate of any deceased person, the husband, if the decedent was a married woman, is entitled to administer; in other cases, it will be granted to the widow, or next of kin, or both, or in the event of their refusal or incompetency, to one or more of the principal creditors. (ƒ)

Notice to creditors.-Every executor or administrator upon the granting of letters testamentary or of administration, shall give notice thereof, by publication once a week, for six successive weeks together, in a newspaper published at or near the place where the deceased resided; and in such notice, they must request all persons having claims or demands against the estate, to present them.

Time for payment of debts.-No executor or administrator can be compelled to pay any debt of the decedent, except such as are by law preferred in the order of payment to rents, nor to make any distribution of his estate, until the expiration of a year from the granting of administration.

Settlement of account.-The executor or administrator must render an account of his administration to the proper register, within one year from the grant of letters, accompanied by the necessary vouchers and evidence. The register upon allowing and filing the account, shall present a certified copy of the same, to the Orphans' Court of the respective county, at its stated meeting, being not less than thirty days distant from the time of such filing and allowance. And he shall give notice of the same to all persons interested by public advertisement, enumerating the

(a) Mett's Appeal, 1 Wh. 7; Warner's App. 2 Wh. 295; Latimer's Est. 2 Ash. 520. (b) Tilghman's Est. 5 Wh. 44. (c) Purd. Dig. 835. (d) Warner's Appeal, 2 Wh. 296. (e) D. L 453. (f) Ib. 458.

Insolvent Laws.

accounts to be presented at any one time to the court, and setting forth in substance, that the accountants have settled their accounts in the office of the said register, and that the same will be presented for confirmation to the Orphans' Court, at a certain time and place specified. Unless the notice has been given pursuant to law, no such account will be allowed and confirmed. Unless the parties interested agree to a different arrangement, the court will either examine the accounts or refer the same to auditors. Where any of the heirs, distributees, or creditors reside out of the United States, or out of the state, the court may if it thinks proper prescribe any additional notice to be given to such persons. (a)

11. Insolvent Laws.

The abolition of imprisonment for debt arising from contract under the acts before recited, has, except in certain enumerated cases, obviated the necessity of considering the provisions of the insolvent laws, except where the cause of arrest is in tort, or in the enumerated cases specially excepted. (b)

In the cases excepted from this act, and in all civil actions for damages arising from tort, the party may, on application to the Common Pleas of the county in which he was arrested or held to bail, or if neither arrested nor held to bail, of the county in which he resides, on giving bond to present himself at the next term of the court, and petition for the benefit of the insolvent laws, be released from custody. (c)

This petition, and that required in the act abolishing imprisonment for debt, must be accompanied by schedules containing statements,

1. Of all effects whatsoever and wheresoever situate. In this are included debts due the petitioner, unless they be absolutely desperate. (d) But rights of action for mere personal torts need not be returned. (e) A bare possibility not coupled with any interest is excluded. (f)

(a) D. L. 468.

(b) Kelley v. Henderson, 1 Barr. 495.

(c) See Act of 1836; Purd. Dig. 606. (d) Ingraham on Insolvency 56, 57. (e) Sommer v. Wilt, 4 S. & R. 28; McFarlane v. Brun, 11 S. & R. 121. (f) Lessee & Humphreys v. Humphreys, 2 Dall. 233.

Insolvent Laws.

2. Of all debts due by him, containing the names of his creditors, the amount, and the nature or character of the debts, so far as he can ascertain the same. It would seem that an omission of the name of a creditor by mistake, misapprehension, or accident, will not vitiate, and that the question turns almost entirely on the bona or mala fide with which the party acted. (a) Gross negligence, however, will raise a presumption of fraud in such case. (b)

3. Of the cause of his insolvency and the extent of his losses, if any. (c) The facts contained in the petition and statements must be verified on oath.

On the presentation of the petition, a time is fixed for the hearing, and notice given to creditors, for at least fifteen days. At the hearing, if, after a full exhibition of all the debtor's affairs, and an examination upon oath of the debtor in regard to them, no presumption of fraud arises, an assignment of all his estate, property, and effects whatsoever, is executed by him, an oath having been previously administered to him, to trustees nominated by two-thirds in number and value of the creditors attending in person or by attorney, or in default of such nomination, by the court; and thereupon the court will make an order discharging the debtor's person from all liability thereafter for any debt or damage accruing before the time of the order.

The trustee must give notice, at least five weeks, to all indebted to the insolvent, and to all creditors, for the presentation of accounts. They are then to collect debts, convert real estate into personal, and make distribution within twelve months, unless the time be enlarged on application to the court. A day is fixed for the presentation of proofs of debts by creditors, of which due public notice must be given, and thereupon a report is to be filed by the trustees, according to which distribution is to be made. No preference, however, is allowed to specialty creditors, but bona fide mortgages, judgments, and executions binding the personal property, are entitled to precedence of payment according to the priority of their lien. Where rent is due, goods liable to distress are not to be removed till it is paid. (d)

(a) Ex parte Scott, Ing. Ins. 81.

(b) Ex parte Phillips, ib. 82. (c) See Baker's case, 1 Binn. 452; Act of 1836; Purd. Dig. 607. (d) Purd. Dig. 608.

Insolvent Laws.

The trustees have the power to compound or to settle debts by arbitration, and the same rights and liability in regard to set-off as their insolvent would have had. (a)

By the discharge of the debtor no other creditors are affected than those who have had due notice; and the liabilities of no other persons are thereby affected. (b)

The execution of the assignment vests in the trustees all the property of the debtor whatever, subject to all liens by mortgage or otherwise, and it is their duty to take it into possession. The trustees are capable of suing for and recovering the same in their

own name.

The property by the assignment is divested, even though the trustees omit or refuse to act; (c) therefore the payment of a debt to the insolvent after assignment is invalid, though made without notice of the assignment. (d)

No bona fide conveyance for a valuable consideration before the date of the assignment, or if made in another county, before the recording of the assignment in such other county, or if of personal property, before public notice given by the trustees, to one who has had no actual notice of the petition or assignment, is in any way invalidated by the execution of the assignment. (e) The insolvent is also entitled to retain all such articles as are exempted from levy and sale on execution. (f)

The trustees may recover and dispose of all real and personal estate which the insolvent may have transferred by a voluntary conveyance, with intent to defraud his creditors, (g) and they have also the power to set aside all fraudulent or irregular assignments previously made. (h)

The choses of action of a wife which have not been reduced into possession before the assignment do not pass to the trustees, but the beneficial interest remains therein to her use. (i)

After all claims of creditors are satisfied, any surplus that re mains is to be paid to the insolvent or his legal representatives.

(ƒ) Ib. 611.

(e) Purd. Dig. 611.

(g) Ib. See also Miller v. Samuel, 7 Pa. Law Jour. Sup. C. 377. (h) Englebert v. Blanfit, 2 Wh. 240.

(i) Purd. Dig. 611.