The opinion of the court was delivered, January 7th 1868, by
Agnew, J.The principal question in this case was decided when it was here before: 1 P. E. Smith 345. It was then held that the defendant’s note was not a donatio eausa mortis. It is quite as manifest it was not an absolute gift.
The utmost that can he claimed from the testimony of Patterson and the letters, was an intention that the plaintiff should get it in case the deceased should not return. Patterson says, speaking of the sealed envelope enclosing the notes, “ he told me to give it to Tilda Linsenbigler,” and said, “ if Tie never came bach, he wanted her to get it, as he would rather she would get it than any other person.”
This was not a present absolute gift, hut the expression of a future purpose in the event of his not returning. In regard to all the letters, it is to he noticed that in none is there a new or present disposition made of the notes, but all refer to his previous act, and express the same intention and qualification stated to Patterson that the plaintiff should have the notes, if -he did not get bach. Had the letter of September 6th, which is most relied upon, stood alone and disconnected, possibly it might háve indicated some present disposition; but the case turns upon the testimony of Patterson, and those parts of the letters which relate to the notes are but declarations referring to his previous act. All must be taken together, and when this is done, there can be no doubt that his intention to give was future in its purpose, and not to take effect unless he failed to return.
This view of the effect of the alleged gift also disposes of the question of endorsement, for the absence of an intention to make a present gift excludes the idea of a transfer by way of endorsement being intended.
The question most pressed upon us in the last argument is the operation of the letters as a military testament. It is alleged they constitute the will of a soldier in actual military service, and therefore invest the plaintiff with a title to the notes by way of legacy. However this may be, it is unnecessary to decide the question now, for, admitting the military testament, it does not-enable the plaintiff to maintain this action. A testament is the “just sentence of our will that we would have done after our death,” and has no operation before. The property being in the *171decedent at his death, necessarily passed into legal custody, and where it is a chose in- action, as in this case, it can he recovered from the debtor only by the executor or administrator who legally represents the decedent. It is to be noticed this is not the case of property or money in the hands of a party who by his express promise has made himself answerable to the plaintiff, as in Lee v. Gibbons, 14 S. & R. 105. Nor is it the case of tangible property, which, by a family arrangement, there being no creditors, has passed into the possession of the defendant for a sufficient consideration, as in Walworth v. Abel, 2 P. F. Smith 370. But here the debtor is called on by the action to pay a stranger to the chose who shows no title from the decedent in his lifetime, and no title at law by a profert of letters of administration. The very distinction is hit by our brother Thompson in the opening sentence of his opinion in Walworth v. Abel, “It is material to bear in mind in this case (he says) that the widow and heirs are not seeking to recover property of the estate without letters of administration.” But that is the very position this plaintiff occupies. . She is seeking to recover a legacy under a will by a suit against the debtor of the estate whose debt is assets. But clearly this cannot be done for many reasons. The plaintiff is not the legal representative of the creditor, and cannot sue in that aspect. She cannot recover her legacy without a tender of a refunding bond to meet forthcoming debts if any should afterwards appear, and cannot maintain her suit in this aspect. The debtor has a right to object, because the record of this action would not bar a suit by the administrator. In Ebbs v. Taylor, 1 Jones 374, it was said even a family arrangement would not bar his suit. Clearly, if in a suit by the administrator he should show that the plaintiff in this action had no title, there would be no defence to his recovery. The debtor-cannot therefore be compelled to occupy this unsafe position. Another reason is, that to permit her suit, would tend to defeat government taxes,, whether Federal, imposed in all cases of succession, or State, upon collateral inheritances.
But the case is still stronger when we notice the actual condition of this estate. , Letters of administration on the estate of the deceased were taken out by the defendant himself on the 11th of December 1861 — but two weeks after the death of the deceased. An inventory was filed by him within thirty days embracing the notes in question ; while the present action was not brought until March Term 1863. It is a familiar principle when the hand which is to pay is the hand also to receive, that is payment in law: Grayble v. York and Gettysburg Turnpike Co., 10 S. & R. 273. Hence the appointment of a debtor as executor, or his taking out letters of administration, operates as payment into his own hands, and his duty as executor or administrator is to in*172ventory his own debt: Griffith v. Chew, 8 S. & R. 17; Metz’s Appeal, 11 Id. 204; Simon v. Albright, 12 Id. 429; Eichelberger v. Morris, 6 Watts 42. It was therefore provided by the 6th section Act of 24th February 1834, that the appointment of any person to be an executor, shall in no case be deemed a release or extinguishment of any debt or demand which the testator may have against him; but such debt shall be included in the inventory and be subject to distribution like other personal estate. When the defendant administered on his creditor’s estate, gave bond and surety, and inventoried his own debt, it is very clear he could not be discharged therefrom, except by due course of administration and settlement of his accounts before the Orphans’ Court. Iiow is it possible that the plaintiff claiming under a testamentary bequest can, by a suit in 1863, take this debt out of the inventory and out of due course of administration without regard to the rights of the administrator, and all parties who may claim the fund as creditors or distributees ? As to the administrator, no legacy can be recovered from him without a refunding bond to protect him against debts which may arise. As to the creditors, whether their debts set forth as paid in the administration-account were properly paid, the Orphans’ Court alone has jurisdiction to determine. And as to the distributees, it is their right to have the question of devisavit vel non tried before the proper tribunal having jurisdiction over wills and testaments. And added to this is the right of the government to hold the administrator to the payment of taxes upon successions and collateral inheritances. All these are questions over which’ the Court of Common Pleas has no jurisdiction. It is now the settled law, that the Orphans’ Court has exclusive jurisdiction over all things pertaining to the settlement and distribution of estates, including the claims of creditors, next of kin and legatees: Kittera’s Estate, 5 Harris 422; Whiteside v. Whiteside, 8 Id. 474; Ashford v. Ewing, 1 Casey 213.
For all these reasons the judgment must be affirmed.