
    William Ebbs, Administrator c. t. a. of Robert Taylor, deceased, with notice to his devisees and terre-tenants, and to Scudder Hart, co-cognisor with the said Robert, and to William Dixon, terre-tenant, v. The Commonwealth for the use of George S. Head, Administrator of Jane Taylor, deceased.
    1. A defendant to a sci. fa. sur recognisance in the Orphans’ Court, where the acceptance of the land was by three jointly, and the recognisances taken were several, cannot defeat a recovery on that ground, when the cognisees are satisfied, and the partition has been confirmed by the court and ratified by the parties.
    2. The conversion of an heir’s share of realty into personalty is complete when the recognisance is given and the land is adjudged to the acceptant.
    8. A sci. fa. sur recognisance in the .Orphans’ Court propei-ly issues against the survivor and the representative of the deceased cognisor.
    4, In an action by an administrator to recover moneys belonging to the estate of his intestate, evidence is inadmissible for the defence, to show payment, settlement, and distribution of the moneys, by a family arrangement, before adminis- . ¿ration granted.
    
      Error to the District Court of Allegheny.
    
      Sept. 4. This was a sei. fa. sur recognisance in Orphans’ Court, in which the Commonwealth, for the use of Jane Taylor’s administrator, was plaintiff. Plea, payment, with leave, &c.
    John Taylor died seised of certain tracts of land, and leaving a widow and eight children, one of whom died before this proceeding in partition, unmarried and intestate. Upon the petition of his son Robert, an inquest in partition was awarded, which appraised the land in four parcels. After a rule to elect or refuse to take the property at the appraisement, the estate was adjudged to three of the sons, John, Joseph, and Robert, jointly, who were ordered to recognise, &c.
    Robert entered into a several recognisance in the penal sum of $9,000, with Scudder Hart as his security, conditioned for the payment of the interest of one-third of the valuation of one of the tracts, taken by him, to the widow annually during her life, and to the other heirs their shares with interest of and in the four-sevenths of the said valuation, and of and in the other third after the death of the widow. After making this recognisance, Robert died, having by his will devised his estate to his daughters. William Ebbs became administrator with the will annexed of Robert’s estate.
    Jane Taylor, one of the children and heirs of John Taylor, whose administrator sues this sei. fa., died an infant, and unmarried, the spring after the real estate had been taken by her three brothers at the valuation, and after this recognisance had been entered into, but before anything was due to her upon it.
    The amount claimed in this proceeding was $713, being the share of Jane in the two-thirds, payable to the heirs, upon the appraisement of the tract taken by Robert. Though the acceptance of the three sons seems to have been a joint one, their recognisances were all served, and covered the valuations of the particular pieees of property held by them in severalty.
    The plaintiff, having proved these facts, rested; when the defendant offered a deed from Robert Taylor to William Dixon, for part of the land bound by the recognisance, together with other evidence to show that Wm. Dixon, the purchaser, and Robert Taylor paid and settled the amount coming to Jane Taylor (who died a minor, without issue), before administration was granted on the estate of the said Jane; that said money was paid to Mrs. Elizabeth Taylor, the mother of said Jane, and to her brothers and sisters, or their legal representatives. That the same was paid in a settlement made by the family in regard to all their claims in this action of partition, and that Robert Taylor, at or immediately after said settlement, paid and discharged all the debts of said Jane Taylor, deceased. To be followed by evidence showing that neither Mrs. Elizabeth Taylor, deceased, or any of the heirs of said John Taylor, deceased, can claim any part of said moneys.
    It was objected to the admission of this evidence that an administration account cannot be settled in this way. And the court sustained the objection.
    The court was requested by the defendant to charge the jury:—
    1. That Jane Taylor having died intestate within one year from the partition, and before any part thereof was due, it descended to the heirs as real estate, and this suit cannot be sustained as brought for the use of the present representatives of Jane Taylor, deceased.
    2. That the plaintiff, if entitled to recover, is only entitled to have judgment for the penalty, to be released on the payment of the one-seventh of four-sevenths, with interest, less the widow’s share, and one-seventh of the widow’s share after her decease.
    1. The court answer the first point in the negative. The share of Jane in the estate of her father became personal property by the proceedings in the Orphans’ Court, and the suit is properly brought in the name of the administrator.
    2. The court also answer this point in the negative. The recognisance provides for the payment to each heir of his respective portion and share, and that is considered to be one-seventh, there being seven children or heirs of the estate of John Taylor, deceased. It is probable that the three sons, who had accepted the real estate, had been satisfied as to their shares in cash out of the different tracts, leaving the remaining four-sevenths to be paid to the other heirs, who had taken no part of the real estate, and hence the words “ four-sevenths” introduced into the recognisance. At all events, the share of Jane in this land was one-seventh, and it remains the same in the valuation; we think that sum is reserved to her by the recognisance, and direct a verdict to be entered for that amount, with leave to take out execution for two-thirds of that sum immediately, and for the remaining one-third after the decease of the widow of John Taylor, deceased.
    The verdict was for the plaintiff, for $712.76, subject to the opinion of the court upon the points reserved. What those points were, will sufficiently appear from the opinion of the court upon them, delivered by Hepburn, President:—
    “Jane Taylor, the plaintiff’s intestate, died in her minority, unmarried, and without issue, some time after the decease of her father, ancl some time after the land had been accepted at the appraisement, and the recognisance, on which suit is brought, entered into. 1
    
    “It is not pretended, that any part of the money now claimed was received by the said Jane in her lifetime, or by her said administrator since her decease. But several objections on other points are made to the plaintiff’s recovery, viz.:—
    “ 1st. That the acceptance being by three of the heirs, the recognisance should have been joint for the whole valuation, and not several. But that course would have been no more a compliance with the acts of Assembly, than the one adopted; the act contemplates an acceptance of the property when not divided, first by the elder, and on his refusal, by the second son, and so on; but the three have united, and the estate has been adjudged to them, and it having been acquiesced in by the other heirs, the objection would come from a wrong source. The parties who have held the land at prices fixed by themselves (so far as regards the subdivision), should not object to its payment, nor is it for them to complain that each man’s land is not charged with three times its present amount, or that the recognisances, which they have entered into, do not include a much larger tract. The cognisees are satisfied, the partition has been confirmed by the court and ratified by the parties, and the cognisors must pay according to their obligations.
    “2d. It is contended, that the money claimed still bears the impress of real estate, and is not converted into personalty, and that the heirs, and not the administrators of the plaintiff, should collect it.
    “ A slight reference to the authorities will show this position to be wholly untenable. It is settled that the personal representative of an heir, whose interest in his father’s estate has been secured by recognisance, which, when paid, will go to the person who would have taken the land, is the proper person to collect the money, for it is considered as personal property for every other purpose except that of descent: Shaw v. M’Cameron, 11 S. & R. 254; 1G S. & R. 120; Pauley v. Pauley, 7 Watts, 159.
    “ But there is no ground for saying that this fund bears the impress of realty; the conversion was complete when the recognisance was given, and the land adjudged to the acceptors, and besides this money is now in the second descent, which is conclusive that it is personal property alone: Biggert v. Biggert, 7 Watts, 563; Dyer v. Cornell, 4 Barr, 363.
    “ 3d. The next objection is that the sci. fa. should have issued against the surviving cognisor, and that the administrator of the deceased cognisor should not have been joined.
    “But this matter is also well settled. The Orphans' Court recognisance is a lien upon the land accepted by Robert Taylor, deceased; and, although his personal property may be discharged, yet the lien of the real estate is not affected, and the sci. fa. properly issued against the survivor, and the representative of the deceased cognisor: Reigart v. Ellmaker, 6 S. & R. 44; Huston. v. Mateer, 16 Ib. 416; M’Cabe v. U. S., 4 Watts, 326.
    “ 4th. The next objection is to the jurisdiction of the court, and the form of the action. Doubtless an action of debt, and not sci. fa. in this court, on a recognisance in the Orphans’ Court, would be the more appropriate remedy, as in general a sci. fa. on a record must be issued in the same court in which the record remains. But this practice has long ago been considered and sustained on the ground of communis error, and because, in substance, the proceeding is but an action of debt: Allen v. Reesor, 16 S. & R. 14, &c.
    , “ 5th. The next objection is the same raised by the offer and rejection of the evidence on the trial.
    “ I am still of opinion that this is not the proper tribunal for settling the administration account, or for making distribution of the intestate’s estate. The legality of the distribution, or payment to the proper party, if payment has been made at all, is the very question in controversy; and as there has certainly been no payment to the legal representative of Jane Taylor, deceased, we think he is entitled to collect the money.
    “Ho doubt he charged himself in his inventory with these recognisances, and how shall he be discharged from his liability to the creditors of his intestate, or her mother, who will be entitled to the money ? So too, creditors are entitled to notice from the administrator, by advertising, &c., and until that is done, it cannot be known whether there are creditors or not. An objection something like the present was made in the case of Pauley v. Pauley.
    “ If defendant’s allegations are correct, and the persons entitled to receive the money have actually received it, the defendant will have the benefit of the payment, when the administrator’s account is settled; and under such circumstances the administrator’s charge for costs or commissions could scarcely be allowed.
    “ There appears to be an error, however, in entering the judgment. According to Stewart v. Walker, 2 W. 200, it should have been for the sum actually due, and not for the penalty, &c., as now entered. The court, however, have the matter in their power, according to the case of Good v. Good, 7 W. 195; and on the plaintiff releasing the penalty, and the amount due after the widow’s decease, judgment will be entered for the plaintiff for the sum due at this time.”
    In this court the following assignment of errors was made:—
    1. The court erred in rejecting the testimony offered by the defendants.
    2. The court erred in not charging the jury as requested by defendants in their first and second points.
    3. The court erred in their opinions on the questions of law as reserved, and not deciding as requested, in defendants’ first, second, third, fourth, fifth, and sixth points respectively, leaving the questions reserved at the time of trial.
    
      Woods, for the plaintiff in error.
    Did Jane’s share, after her death, descend as real or personal estate ? If as real, the plaintiff cannot recover: it would go to her mother for life, and then to the heirs at law: Intestate Law, § 9 ; Maffit v. Clark, 6 W. & S. 258. Under the rule in Dyer v. Cornell, 4 Barr, 363, this was realty, and, as such, went directly to the heirs of Jane. That was a balance after sale for payment of debts. The same doctrine is held upon sale of a lunatic’s estate: Lloyd v. Hart, 2 Barr, 473; and in respect to a feme eovert’s share on partition of her father’s real estate: Beyer v. Reesor, 5 W. & S. 503. No other rule can be applied to such a case as this — the share, under partition, of an infant.
    Can the administrator recover, treating it as personalty, where there are no debts, and the money has .been paid to the heirs ? Carter v. Trueman, 7 Barr, 323; Moore v. Rahm, 2 S. & R. 375; § 33, Act of 1834, Executors, &c.; Dunlop, 592; § 18, Act 18th Ap. 1833. The administration was not taken out for nine years. There were no debts. She was a minor. Admitting her share to be personal, the heirs had a right to receive it, and the payment to them cannot be questioned : Lee v. Gibbons, 14 S. & R. 105.
    There was no land awarded to Bobert Taylor: it was all awarded to John, Bobert, and Joseph Taylor.
    The Orphans’ Court took the bond for the payment of four-sevenths to all the heirs, and this court has no right to determine, in this collateral proceeding, that the bond was wrong, and give judgment against a surety for what they think the bond ought to be.
    Is not the proper jurisdiction for such a case as this the Orphans’ Court, under § 49, Act 29th March, 1832, relating to O. C. ?
    
      
      Shaler, contra.
    The offer of evidence was rightly rejected, under the plea of payment with leave. An arrangement of that kind should have been specially set forth: Lewis v. Morgan, 11S. & R. 234; M’Crelish v. Churchman, 4 R. 26 ; Minnich v. Crozier, 2 R. 111.
    But the defence is not available. It raised at once questions as between the heirs and the widow; as to what would amount to a payment to her; as, what she had agreed to; as to how the particular payments were made; as to whether frauds had been ¡practised upon her to gain her alleged assent; as to how it happened that she had no title to the moneys owing under the recognisance, and divers others, too tedious to mention, and all of them were brought upon the administrator without notice. The payment, if any was made, why was the matter left open upon the record — the recognisance not satisfied ? The proper place for all this would have been in the Orphans’ Court when it had taken place, and where, after action brought, the motion might have been made to have satisfaction.
    These authorities are deemed conclusive: Morrison’s Estate, 9 W. & S. 116; Commonwealth v. Lightner, Ib, 117; Pauley v. Pauley, 7 W. 159; Ferrel v. Commonwealth, 8 S. & R. 312; Biggert v. Biggert, 7 W. 563; Dyer v. Cornell; Simpson v. Kelso, 8 W. 247.
    As regards the form of the sci. fa. and the judgment, the cases cited in the opinion of Judge Hepburn are sufficient.
   The opinion of this court was delivered by

Rogers, J.

The judgment is affirmed, for the reasons given by Judge Hepburn. In addition to his reasoning on the point whether the administrator is entitled to recover, it may be proper to remark, that to permit the settlement of the estates of testators or intestates through any other medium, would materially interfere with the operation of the law imposing a tax on collateral inheritances. As, then, the alleged payments to the heirs were inoperative in this suit, the court was right in excluding the evidence contained in the bill of exceptions. As we perceive no error in the record, the judgment is affirmed.

Judgment affirmed.  