Commonwealth ex rel. McDonald v. McDonald

Citations

• 170 Pa. 221
• 32 A. 410
• 1895 Pa. LEXIS 1387

Syllabus

<p>Principal ancl surety — Suit against surety.</p> <p>While the liability of the sureties of a trustee is contingent on the principal being fixed personally for the debt, and his inability to pay, yet where the principal absconds, conceals himself, or resides beyond the jurisdiction of the court, or where by a decree of the orphans’ court the devastavit of the principal is conclusively established, and his utter insolvency appears, an action will lie on the bond against the sureties, without proceeding first against the principal.</p> <p>Costs — Waiver of right to costs.</p> <p>Where a legatee on an appeal to the Supreme Court in a contest against a trustee and his sureties, does not ask for a decree as to costs in the Supreme Court, nor subsequently in the orphans’ court when the record has been remitted for further proceedings, but institutes suit on the trustee’s bond in the common pleas, it will be presumed that the legatee has waived his right to costs.</p> <p>Principal and surety — Liability of surety as fixed by decree of orphans court.</p> <p>The orphans’ court made an order to sell the real estate of the decedent and appointed a trustee to make the sale. The auditor appointed to distribute the fund found as a fact that the real estate sold was not a part of the estate of the decedent. On exceptions to the auditor’s report the court reversed the auditor, and found that the real estate belonged to the decedent. No appeal was taken from the decree, and after the lapse of four years suit was brought on the bond of the trustee. Held, that the decree of the orphans’ court was final and conclusive against the trustee’s sureties.</p>