In re the Collection of the Goods of Christy

The collector of the estate, in his petition, sets forth .that among the articles inventoried as assets of the estate, ate the household furniture, .pictures, paintings, etc., nowin the house occupied by E. P. Christy at the time of his death, and appraised at $2,662; that said house is occupied by a person- named, in what purports, to be the will of said Christy, as his wife ;■ that more, than forty days have elapsed since Christy’s death; that in the judgment. of .the collector, it is necessary for the preservation and benefit of said estate to sell said pro-, perty, unless the same be amply secured to said collector that he is, and has been since his appointment as collector, obliged to keep a man hired to .watch said property at am expense of two or three dollars per day; -that in its present, position, said property is not secure; that the collector has no safe place to keep the same except at a great pecuniary expense to the estate, and he therefore prays that he be directed-to sell said property.

These statements are met by an affidavit. of Mary Add Maples Christy, who alleges that she is widow of the decedent; that she had no knowledge, nor was she aware that the appraisers and collector, or either of them, had any intention to inventory the furniture, pictures, paintings, etc., now in the house occupied by her, till the said appraisers and collector came to the house to take the same; that she was not privy in any manner to the making of said inventory; and that at .said .time, she caused the *25said appraisers and collector to be informed that the said furniture, pictures, painting, etc., belonged to and were owned by her; that at or about the time she and the said Edwin P. Christy, deceased, commenced housekeeping at ¡No. 96 Grand street in this city, she loaned to said Edwin P. Christy the sum of about $10,500; that $5,500 thereof were the proceeds of the sale of real estate she owned in Philadelphia, and the balance was money she had on deposit in saving’s bank; that all of said furniture, etc., was purchased with her said money, and the same was insured in her name during the lifetime of said Edwin P. Christy, and with his knowledge and assent, and the same is now insured in her name. She further says, that she purchased a house with her own money and in her own name, and that immediately after she took possession of said house, and had removed thereto the furniture, etc., contained in the house ¡No. 96 Grand street, and that she has ever since said time occupied said house so conveyed to her as aforesaid; that she is abundantly responsible, has no family, and the said furniture is but little used, and is not in any sense perishable, and will be better preserved by remaining where it is than by storing it; that said furniture, pictures, paintings, etc., would be sacrificed at less than their value if sold at auction; and that the estate will be neither preserved nor benefited by such sale; that the said furniture, etc., are entirely secure, and she has no intention to remove them, but means to continue her residence in said house and retain possession of said property there until this case is terminated by a judicial decision, if not longer.

I may refer in addition to these statements of the deponent to that of her counsel in Court, that she would consent neither to secure to the collector the value of this personal property, nor to yield up its actual possession without the judgment of a Court of ¡Record.

The paper propounded as the will of E. P. Christy is before me, and its admission to probate is contested in *26this Court by Mrs. Harriet E. Christy, also claiming to be the widow of E. P. Christy, and by E. Byron Christy, claiming to be his son. In this alleged will, the property in question is mentioned, but as the will is not yet admitted to probate, I cannot look into that instrument for evidence upon which to act.

I cannot try the title to1 this property ( Will. on Ex'rs, p. 221; Dayton on Burr., p. 231); and yet I am unable intelligently to give directions to the collector without incidentally looking into the question of probable ownership. Thus, if there appear to be “ a clear outstanding title against the estate ” (4 Brad., 252), I ought not to interfere on behalf of the estate. But “ if there be a reasonable cause for doubt,” as the learned Surrogate remarked in the estate of Harvey Burdell (ut supra), “ the proper course is to permit the sale, and let the question be tested by the Court having jurisdiction of the matter.”

In this ease I feel compelled to say I do not perceive any “clear oustanding title against the estate.” Mrs. Mary Ann Maples Christy swears that she loaned the decedent the money with which the furniture was purchased ; and she thus (even if her testimony were admissible under the Code, as to a transaction between herself and decedent,) establishes only at most, a debt from the estate to her for the loan. It is true that she swears she informed the collector that the furniture was hers, but she does not swear that it is hers. The evidence she presents would not support her claim to the ownership of this furniture in a trial at law.

Mor does Mrs. Christy in her affidavit or otherwise, claim title to this property by gift in the lifetime of the decedent. In this respect her claim is not so strong as that made by Mrs. Parish (4 Bradf., 24), where the Surrogate gave leave to the collector to bring suit for the recovery ■ of certain stocks and securities standing in the widow’s name, and claimed as her individual property. Mrs. Parish swore that these were gifts; Mrs. *27Christy does not allege any legal title, bnt merely avers that she has possession and “ means to retain it.”

But the present case resembles that of the Parish estate in this particular; that the property claimed by the widow, or the person assuming to be the widow, is in the actual custody and possession, not of the collector, but of herself. The collector in the Parish estate would not have been able to expose the articles to sale without first trying title, had he been directed by the Surrogate to sell them for the benefit of the estate. It is so in this instance; the counsel has announced that possession of the furniture, etc., will not be yielded up to the collector without a trial at law. It was otherwise in the Burdell case, where the collector appears to have had the property actually in his custody, the claimant was in prison and no suit was necessary.

I am not disposed to make an order for the sale of what is not actually in the hands of the representative of the estate, although the probable title is in the estate. Such an order would not add to the powers or the security of the collector. He would,still have to await the decision of a Court of Jurisdiction competent to award the title.

The proper way, doubtless, is to direct the collector to bring suit to test the title. This he has already, by the statute, power to do without any direction, but the direction will be an absolute evidence of his good faith, and his warrant for the proceeding.

Should the will go to probate such a suit would abate; while if probate be denied, it would, if undetermined, pass over to the permanent administrator of the estate. • Should the estate succeed in it, I will then consider the propriety of the sale.