
    [Philadelphia,
    January 8, 1827.]
    LEIPER against W. LEVIS, O. LEVIS, and SAMUEL GARRET, Administrators of LEVIS. Philadelphia Bank against Same. Philadelphia Bank against LEIPER.
    IN ERROR.
    A judgment creditor of an insolvent intestate cannot gain a priority over other judgment creditors by taking out against him, and levying on his goods a fieri facias which relates to a day prior to the intestate’s death.
    Such fieri facias and levy are good where the estate is solvent.
    This was a writ of error to the Court of Common Pleas of Delaware county, where the respective parties agreed, that these cases should be united, and the annexed statement be considered in the nature of a special verdict, found on the trial of each of these cases by a jury sworn to trj’ all the issues joined between the different parties. If upon this statement of facts, the court should be of opinion that Thomas Leiper was entitled to the proceeds of the sale by the administrators, their judgment to be entered in his fa-* vour in the suit against the administrators for the athount.of the sales so made by the administrators, and judgment to be entered in the two subsequent suits in favour of the defendants. , But if the court should be of opinion that the Philadelphia Bank was entitled to the whole of the money nów in the hands of the administrators, after deducting physic, funeral expenses, and servants’ wages, then judgment to be entered for the Philadelphia Bank on the first count of the declaration in the suit against Thomas Leiper, and also in the suit against the administrators for such sales, and judgment to be entered in favour of the administrators in the suit ot Leiper against them. But if the court should be of opinion that neither the Philadelphia Bank nor Thomas Lei-per are entitled to the whole of the proceeds, or to the money remaining in the hands of the administrators, but only to a pro rata distribution of the money remaining after payment of physic, funeral expenses, and servants’ wages, then-judgment to be enteied in favour of the plaintiffs in the first and third suits, for the respective amounts to which they shall be entitled, on a pro rata distribution, and judgment to be entered in the second suit in favour of the Philadelphia Bank, on the second count of the declaration.
    • Case stated for the opinion of the court, and to be considered as if the facts had been found by a special verdict.
    On the 21st of May, 1817, a judgment was entered by agreement against William Levis in favour of the Philadelphia Bank, for the sum of eight thousand one hundred and eighty-eight dollars, in the Supreme Court for the Eastern District of Pennsylvania. On the 14th December, 1818, Thomas Leiper entered a judgment against the said William Levis in the Court of Common Pleas of Delaware county, upon a bond and warrant of attorney, dated the same day, for eight thousand dollars, conditioned for the payment of four thousand dollars, as security for notes endorsed by the said Leiper, for the said Levis, and theh becoming due. On the 9th of May, 1819, the said Levis died intestate, leaving personal estate in Delaware county, to the amount returned in the inventory hereinafter mentioned, and on the 18th day of the same month, letters of administration of the goods and chattels rights and credits, which were of the said intestate at the time- of his death were granted to William Levis, Oborn Levis, and Samuel Garret. On the 24th day of the same month, a writ of/zeri facias issued out of the Court of Common Pleas of Delaware county, returnable to July Term, 1819, upon the judgment of the said Leiper, directed to the sheriff of Delaware county, and was delivered to him on the same day; the said Leiper had previously to the issuing of the said execution taken up and discharged all the notes for which his said judgment was a security as aforesaid. The sheriff, in pursuance of the said writ, proceeded in the manner stated in this' affidavit, which is annexed and made a part of this case. S The said administrators filed an inventory of the personal estate of the said intestate, in the Register’s Office of Delaware county, on the 7th day of June, in the same year, amounting agreeably to appraisement to the sum of four thousand two hundred and eighty-four dollars and ten cents. On the 8th day of June in the same^year, the following agreement in writing was entered into between the agent of Thomas Leiper, and the administrators of William Levis.
    
    
      Thomas Leiper v. William Levis.
    
    
      m&ri Facias to July Term> 1810j Delaware count^ Common Pleas.
    It is agreed, that the administrators of William Levis, deceased, may proceed to inventory and sell the personal estate of the said deceased, notwithstanding the above execution, holding the proceeds of sale, subject in the first instance, to the rights the plaintiff has already acquired under the execution.
    
      June 8, 1819. George G. Leiper,
    
    Attorney for Thomas Leiper.
    
    
      Samuel Garrett, Oborn Levis,
    
    . , ... , Administrators.
    No part of the said, personal property ever was in the actual possession of the sheriff of Delaware county, nor sale of the same ever made by him, nor any of the proceeds of the said property ever came to his hands, nor has the said writ of execution ever been returned by him. The said administrators, in their names as administrators, proceeded to advertise and sell part of the said personal property at public vendue, and the residue thereof was sold by them as aforesaid at private sale to various individuals; the amount actually received from the said personal estate by the said administrators in money is - - • - - $1208,044
    They hold securities for personal estate sold to the amount of...... 1800,00
    $3008,044
    The said administrators have actually paid for physic, the funeral expenses, and servants’ wages, of the deceased, three hundred and seventy-five dollars and sixty-four and a half cents, which payments were made since the 8th June, 1819, a part of the above, viz. one hundred and seventy-seven dollars and fifty cents, was recovered from the administrators, as servants’ wages, in the action of Bailey v. Levis’s administrators, in this court, No. 53, to July Term, 1819. The said administrators are indebted for office fees, and for professional services and advice, in an amount which they estimate at $-. At the time of the decease of the said intestate no other judgment, except the two first above mentioned, of the Philadelphia Bank, and Thomas Leiper, was entered against the said William Levis. On the 10th day of January, IS22, the judgment of the Philadelphia Bank was revived against the adr ministrators of William Levis, and on the 13th day of June, in the same year an alias testatum fieri facias, issued on the said revival, out of the Supreme'Court of the Eastern District of Pennsylvania, returnable the last Monday of July, 1822, directed to the sheriff of Delaware county, and was delivered to him the next day. The said execution was regularly served by the sheriff on the said administrators, but no levy was ever made.'
    Sheriff’s affidavit, above referred to:—
    
      Thomas Leiper v. William Levis.
    
    ! > )
    
      Fieri Facias to July Term, 1S15,
    
      Robert Fairlamb being affirmed doth depose and say, that at the time the above writ of fieri facias was issued, he was high she-riff of the county of Delaware, that the said writ was delivered to this affirmant on the 24th day of May, 1819, as appears by his indorsement on the same; that a. short time after he received the writ, not many days after, he served it on one of .the administrators, he thinks Samuel Garret, but no actual .levy was made or inventory taken of the property ; but his impression is, that it was to be considered by the parties as though an actual levy had been' made; that he understood the administrators and the plaintiff were about to enter into an agreement by, which the administrators were to proceed to make sale of the property of the intestate, and he was informed, not long after, that such an agreement had been made; after which he gave himself no further no further concern about the writ, but held the same in his possession until it was called for by S. Edwards, the plaintiff’s counsel, when he delivered the same to him.
    Affirmant further says, that when the said writ was delivered to him, he was instructed to serve the same, but not to proceed to make sale of the property until he received further instructions from the plaintiff or his counsel.
    Affirmed and subscribed! July 15th, 1822, before V Samuel Smith, J. P. }
    Further saith not Robert Fairlamb.
    
    Judgment was entered by the court below in favour of Thomas Leiper, against the administrators of William Levis, deceased, of July Term, 1822, for a pro rata distribution of the monies remaining in the hands of the defendants after payment of physic, funeral expenses, and servants’ wages.
    
      Kane, for the plaintiff in error,
    now contended that Leiper had obtained a preference by the fieri facias, issued in his suit tested in the lifetime of Levis, and levied on his goods in the hands of the administrator; citing statute 29 Car. 2, c. 3, s. 15, 16. 2 Bunbury, 271. 2 Bay, 850. 7 Mod. 93. S. C. 3 P. Wms. 398, 399. 1 B. & P. 571. T. R. 20, note. The practice was established in Pennsylvania to levy on goods in the hands of administrators, by virtue of a fieri facias tested in the testator’s lifetime Lewis v. Smith, 2 Serg. & Rawle, 142. Fitch v. Ross, 4 Serg. & Rawle, 557. He also referred to 1 Cowen, 33, 34. 9 Mass. 214.
    
      Read and Tilghman, contra,
    insisted that it was the character of the debt at the death of the intestate, that governed its right to payment out of the assets, and that no levy under a fieri facias or relation to its "teste, could contravene the distribution provided for by the intestate act, 3 Sm. Laws, 148. This point was so decided by the late President Wilson, in Burton v. Johnson, and is recognised in Welsh v. Murray, 4 Dali. . Wootering v. Stewart’s Executors, 2 Yeates, 483. Prevost v. Nichols, 4 Yeates, 479. Scott v. Ramsey, 1 Binn. 221. Ex parte Meason, 5 Binn, 174. Bell v. Newman, 5 Serg. & Rawle, 85. Griffith v. Chew, 8 Serg. & Rawle, 30. Besides, no actual levy was made on Leiper’s execution. Actual levy before the return day was necessary. To show the meaning of the word levy, they referred to Hodgkiss v. M'Vicker, 12 Johns. 403. Hendricks v. Robinson, 2 Johns. Ch. 312. Hagerty v. Willer, 16 Johns. 287. Engel v.Osburn, 1 Ray, 320. Case of Billington, 1 Wash, Rep. 30. Bradley v. Windham, 1 Wils. 44. Dewitt v. Smith, 1 Mass. Rep. 309.
    
   The opinion of the court was delivered by

Rogers, J.

The practice of Pennsylvania is too well settled to be now shaken, that a judgment may be entered, or execution issued, after the death of the defendant, and that the execution has relation to the first day of the preceding term. This legal fiction works no injustice between the parties themselves, or their legal representatives, and may be justified by the consideration that the practice facilitates the collection of debts, certainly due, from an estate, acknowledged to be solvent. If We were now, for the first time, to consider whether legal relations and legal fictions should be introduced, it would perhaps be wise to inquire into, and sift most minutely the foundations on which they were supported. This, however, is not a case where rights of the parties only are. involved, but it concerns creditors, and’the responsibility of administrators. It is the case of an insolvency, and an attempt, by means of a legal fiction, to deprive other creditors of a vested right. Justice, in such a case, would seem to require, that, upon an application to the court, an execution issued under such circumstances should be set aside, andthe plaintiff put to his scire facias, which would afford the administrator an opportunity of taking de fence to the action. Fictions were not intended to do injustice, Jior should they be permitted to interfere with the operation of a most beneficial statute. By the 11th section of the act of assembly of 1794, all debts, owing by any person within this state, at his or her decease, shall be paid by the executors or administrators, in a manner therein prescribed. And, to the end that due regard may be had to creditors,,it is provided, that no administrator shall be compelled to make distribution of the goods of any person dying intestate, until one year be fully expired, after the intestate’s death. This act is directory, and imperative upon executors and administrators, and in terms includes all debts owing by the deceased, and, as they ranked, whether by judgment, bond, or simple contract, at the time of the death of the testator, or intestate. The right of the creditor became vested, to be paid in the order pointed out by the act, which the executors or administrators cannot vary, without a devastavit. What, then, is the matter submitted to the court, but an attempt, by means of a legal fiction, which was never in the contemplation of the legislature, to change the rights of creditors, by the mere act of issuing.an execution after the death of the intestate. ' Establish the principle, contended for by the plaintiff in error, and it will be unsafe for an executor to pay the funeral expenses, servants’ wages, the physician’s bill, or indeed the necessary expenses of letters of administration, until the intervention of a term after the death. A creditor, with a warrant of attorney to confess a judgment, would have it in his power to sweep the whole estate, in prejudice of debts of equal or superior degree, contrary, as I believe, to the manifest intent and policy of the act of 1794. A judgment entered more than a year would be postponed to a debt, where there was a warrant of attorney to confess judgment, and that without-the probability, by any legal diligence, of preventing it. One would be compelled to resort to a scire facias, whilst the other would enter his judgment, and issue immediately his execution, which would secure a preference for his debt. It was one among the many humane and benevolent purposes of this act, to prevent this legal scramble for the assets of deceased insolvents. And the more effectually to carry their intention completely into effect, the legislature have given the executor one year, that he may ascei’tain the assets, and make the legal distribution of the estate, in the manner there prescribed. I am the more confirmed in my views of this point, as it is sustained by the authority of the case of Wood and Hopkins, Pennington’s Reports, 689, determined by the Supreme Court of New Jersey, where they have a similar act of assembly.

As my opinion is founded on the operation of the act of 17,94, it would be an affectation of legal research, to examine particularly the English decisions, and point out in what respects they differ from the law of Pennsylvania,

Judgment affirmed.  