Rambaut v. White

Opinion by

Mr. Justice Schaffer,

The facts essential to a proper understanding of this case are these: Plaintiffs held a judgment against John-M. White, whose wife died seized of an undivided interest in certain real estate, leaving him and two minor children surviving; he and other parties in interest joined in an agreement to convey the property, subject to the approval of the orphans’ court, and subsequently the orphan's’ court authorized the guardian of the minors to join in the sale. White signed a paper, attached to the petition for authority to sell, in which he stipulated that he, without consideration, would join in the execution of the deed to the purchaser. With matters in this shape, and before the deed was executed, plaintiffs issued a foreign attachment on their judgment, and White’s interest as tenant by the curtesy in the real estate was attached. The question for solution is whether White, at the time of the issuance of the writ, had any interest in the property which could be attached.

Appellant contends that, since the writ did not issue until after White had joined in the agreement pf sale and signed the petition to the orphans’ court, he, by agreeing to surrender his curtesy without consideration, in effect released his estate to his children, and so completely divested himself of all interest as to leave nothing which the attachment could reach; but with this we cannot agree. No actual release of his interest was executed and, at the time the attachment was levied, only a very small part of the consideration money had been paid and no deed had been delivered. Under the circumstances here appearing, White’s interest in the land still remained in him, and therefore was as much bound by the attachment as it would have been had he not executed the agreement of sale or joined in the orphans’ court proceeding. By his agreement to convey without consideration, he could not legally augment the shares of his children in the purchase money at the expense of his creditors. On the facts as they are, the case was properly determined by the court below.

The judgment is affirmed.