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from Peterson for Largy, he promised that before he parttwi
with it he would have the interest and cost of the judgment
settled likewise ; for which purpose the receipt given by Mr.
Goddard for the *principal of the judgment was left _ ..
by Mr. Peterson with Mr. Cash that he might procure *
a receipt on the same for the interest and costs. Accordingly
the receipt was afterwards returned to Mr. Peterson with an
entry on it of the interest and costs having been paid. Under
what arrangement Cash advanced the principal of the judgment
for Largy does not distinctly appear, but certain it is that it
could not have been under an agreement that he was to have
the judgment assigned to him as a security for his being reim-
bursed, because a continuance of the judgment in force would
have been incompatible with the end of advancing the money,
which was to have the lien of it extinguished. Hence it is not
material to know how Mr. Cash expected to be reimbursed.
But no doubt if he had wished, he could have had it out of the
money loaned by Peterson, as that all passed through his hands.
Be that however as it may, it is certain that the judgment was
paid for the special purpose of extinguishing its lien. And of
all this Mr. Waters seems to have been fully advised before he
lent his money to Largy and took from him his judgment for
the repayment of it. Largy himself prevailed on Mr. Peter-
son to furnish the receipt of Mr. Goddard in order to satisfy
Waters that it was paid.

But it is said that the judgment of Goddard being marked
on the docket for the use of Cash before and at the time Waters
advanced his money and took from Largy a judgment for the
repayment of it; Waters was bound to take notice of Goddard's

173



133 SUPREME COURT [Philadelphia,

[Waters r. Largy.]

judgment, and to know that the amount of it was claimed by
Cash. Admitting this to be so, still it will not make the claim
of Mr. Cash under the judgment good and available. The
judgment being once satisfied and extinguished could not pos-
sibly be revived afterwards by any act of Mr. Cash, or of Mr.
Goddard or his attorney, or all or any of them without the con-
sent of Largy the defendant. But it does not appear that his
assent was ever given or even asked for such a purpose; conse-
quently the judgment of Goddard must be considered satisfied,
and could therefore be no lien on the real estate of Largy at
Ihe time Waters obtained his judgment. Waters, therefore, is
entitled to the money that was appropriated by the decree of
the court below to the payment of Cash's claim under God-
dard's judgment. I think there is much less plausibility in
the claim of Cash than there was in that of Porter's Executors
v. Neff, 11 Serg. & Rawle, 208, where on the 1st of May, 1807,
A. executed a mortgage to B. which was duly recorded. On
the 14th of March, 1815, C. entered up a judgment for two
thousand dollars against A. under a warrant of attorney. On
the 17th of the same mouth, A. conveyed the mortgaged prem-
ises to D. for the consideration of twenty-eight hundred dol-
lars, twenty-three hundred of which he paid and agreed to pay
to B. the mortgagee five hundred dollars, being the balance of
the purchase-money and the balance due on the mortgage; part
of which he paid in his lifetime; and the residue was paid after

f*1 'Ul ^' S ( ^ eatn ky *'" s exccutors > wn o took an assignment
J of the mortgage from the mortgagee on the 23d of
September, 1818. The mortgaged premises were levied on and
sold by the sheriff under the judgment of C. to C. himself.
Held, that C. was entitled to retain the amount of his judg-
ment out of the purchase in preference to the claim of D.'s ex-
ecutors under the assignment of the mortgage.

The decree of the court below is reversed, and the money
thereby appropriated to the payment of Cash's claim under the
judgment in favour of Goddard against Largy, is ordered and
decreed to be paid to Charles Waters the appellant.

Judgment reversed.
Cited by Counsel, 2 Barr, 96.
174



Feb. 13, 1835.] OF PENNSYLVANIA. 134



[PHILADELPHIA, FEBRUARY 13, 1835.]
Gest against Heiskill.

An offer to purchase the acquittance of a debt, barred by the statute of lim-
itations, is an offer of compromise, which is insufficient to raise a promise to
pay by implication of law.

ERROR to the District Court for the city and county of
Philadelphia.

It was an action to recover the price of flour sold by Gest &
Dickinson to Heiskill, in February, 1814.

On the 6th of June, 1814, Heiskill was discharged under the
insolvent laws, by the Court of Common Pleas of Philadelphia
county, and returned Gest & Dickinson for an unsettled amount
as creditors.

For the plaintiff it was proved that somewhere about the
latter part of the year 1813, the defendant, Heiskill, became
under-contractor, under Robert M'Coy for the supply of the
Unite4 States troops. That one Lewis Reineck, asked witness
to see Heiskill, and ask what he would give for Reineck's old
debt, due by defendant. This was four years ago. Witness
went to Heiskill, and asked him if he would buy Reineck's
debt. He said yes, he would buy them all if he could get
them cheap. Witness told him that Reiueck would take a
hundred dollars for it, which defendant said he would give.
Witness then asked him what he should offer Gest, the plaintiff,
for the debt due him. Defendant told him to go up and see
what Gest would take for it. Witness went, and Gest told
him to ask defendant" what *he would give. Witness
went back again, and defendant spoke something about
sixty dollars, and on being told by witness, that he did not
think Gest would take that, he said, well, give him eighty dol-
lars. Gest refused to take that sum. Witness told him what
defendant had said previously, with respect to buying all the
debts. No conversation passed between witness and defendant,
as to the debts being barred by the statute of limitations. Wit-

175



135 SUPREME COURT [JMadelpkia,

[Gest v. Heiskill.]

ness wont back and told defendant, and asked him if he should
offer more now. Defendant said no, never mind now.

A verdict was taken for the plaintiff, for five hundred and
nineteen dollars and twenty-five cents, subject to the opinion
of the court, on the foregoing" facts.

The court gave judgment in favour of the defendant, upon
which, Gest brought this writ of error,

It was argued by J. R. Ingersoll for the plaintiff in error,
Who contended that here was an unqualified and unequivo-
cal acknowledgment of the debt, from which the law would
raise the presumption of a new promise, according to the rule
laid down in Church v. Feterow, 2 Penn. R. 306. The quali-
fication to preserve the bar, must contain negative words, or
an express condition stipulated for at the time. The acknowl-
edgment to take the case out of the statute may be slight, and
just as well by way of recital as otherwise. A return of a debt
in an insolvent's petition, will have the effect, Boyer v. Hender-
son, 6 Wheaton, 514. So a recital in a deed, King r. Riddle,
7 Cra. 168. In Feather's Appeal, 1 Penn. R. 322, it appears
to have been considered that the statute does not run against
debts due by an insolvent. The creditor cannot reasonably be
presumed to have abandoned his claim when his debtor is insol-
vent, and having placed his liability on the records of the in-
solvent court, the presumption that the claim has been satisfied
fails. It is well settled in Pennsylvania that a declaration of
indebtedness will not avoid the statute if accompanied with a
denial of liability to pay. Gallaher v. Milligan, 3 Penn. R.
177. But here was no such denial. If the defendant had said,
tell Gest I owe him eighty dollars and no more, or if he had
said, I will pay him eighty dollars and no more, it might have
admitted of a question.

Mr. Ingersoll then went into a minute examination and
comparison of the cases with the one at the bar, for the pur-
pose of showing that the alleged qualification in the present
case, was not such as to prevent the effect of the admission of
the debt. He cited and commented on 1 Knapp. 226 ; 16 East,
420 ; 13 Johns. 288, 510 ; 9 Serg. & Rawle, 12 ; 11 Ib. 10 ; 12
176



Feb. 13, 1835.] OF PENNSYLVANIA. 135

[Gest v. Heiskill.]

Ib. 393 ; 13 Ib. 124 ; 3 Wash. 404 ; 3 Bingh. 329 ; 2 B. & C.
149 ; 1 Stark. 7 ; 4 M. & S. 457 ; 10 B. & C. 317 ; Cowp.
348 ; 2 B. & A. 760 ; 4 B. & A. 568 ; 1 Holt, 380 ; 1 Bingh.
266; 4 Ib. 313.

*The court declined hearing Perkins and, Chauncey,
who were to have argued for the defendant.

PER CURIAM. An offer to purchase the acquittance of a
debt barred by the statute of limitations, is an offer of com-
promise which shall not prejudice him who made it. The ac-
knowledgment of the debt implied by the offer, is insufficient
to raise a promise to pay it by implication of law, because it
would found an implication on an implication, which the law
does not allow. Even a direct acknowledgment of the exist-
ence of the debt, does not raise such a promise, unless it be
also an admission of a legal obligation to pay ; for if it did,
proof of the debt by other evidence than the debtor's ac-
knowledgment, would have the same effect, and the statute,
operating not on the debt, but the remedy, would be a dead
letter. The remedy being barred, a new obligation would
arise, as of course, from the original debt, as its consideration.
Such would be the consequence of holding, that the naked ex-
istence of the debt unimpaired, as it must be admitted to be,
by the effect of the statute, creates a new and independent
promise. Again ; where there is an express promise, there can
be no implication of a promise differing from it ; and here
there was an express promise, but on a condition not fulfilled,
which makes it no better than no promise at all ; consequently
the admission of the debt, being but a deduction from the
express promise, follows the fate of it, of which it was but an
accident. As to the position founded on a dictum in the de-
cision of Feather's Appeal, 1 Penn. R. 332, that the statute
of limitations does not run against the debts of an insolvent
debtor, it is sufficient that no such point arose there, the ques-
tion being not on the statute as a bar, but on the effect of lapse
of time, as evidence of payment ; nor was any such point in-
tended to be settled, when the cause came up at consultation.

VOL. v. 12 177



136 SUPREME COURT [Philadelphia,

[Gest v. Heiskill.]

The provision in the statute that the debts of an insolvent
shall nevertheless stand good against his property, was intended
to express no more, than that the exemption acquired by his
discharge, should extend but to his person. His subsequent
earnings are to make satisfaction as if no discharge of his
person had taken place. An order made with the assent of
two-thirds of his creditors, that he be exempt from suit for
seven years, would doubtless create an exception ; but surely a
naked discharge of the person from arrest which presents no
obstacle to a recovery by action, would not have that effect, as
it would expose the debtor to all the dangers incident to delay,
by the death of witnesses and loss of papers, from which the
statute -was intended to protect him. The action, therefore,
was clearly barred.

Judgment affirmed.

ated by Counsel, 4 Wh. 277.
Appcwed in, 1 Wh. 108



[*137] *[PHELAI>ELPHIA, FEBRTJART 13, 1835.]

Masterson and Another, Executors of Masterson, against

Maetereon.

lyt ERROR

Executors are liable as such only on the contract of their testator ; and where
they are sued on their own promise though they are named as executors, they
cannot appeal from an award of arbitrators without entering into a recogni-
zance of bail.

ON a writ of error to the Court of Common Pleas of 3Iont-
gomtry county, it appeared that this suit was brought in that
court by the defendant in error, Elizabeth Masterson, against
the plaintiffs in error, John Masterson and Christopher Tenant,
executors of Henry Masterson deceased

The declaration contained two counts, the first of which set
forth that Henry Masterson on the 6th of November, 1818,
made his will, by which among other things he bequeathed to
178



Feb. 13, 1835.] OF PENNSYLVANIA. 137

[Masterson and another, Executors, t>. Masterson.]

his wife, Elizabeth (the plaintiff below) the interest of the
money arising out of his estate for the term of five years after
his decease, she remaining single and maintaining and educating
his minor children thereout, and directed the interest of the
residue of his estate, after paying to his children certain leg-
acies, to go to the support of his wife and minor children as
long as they could live comfortably together, but should this
not happen to be the case, or should his wife marry again, then
it was his will that suitable places should be provided for his
minor children, and that his goods and effects should then be
sold, and the money arising from such sale be considered as
part of his estate, and that his wife should then draw one-third
part of the interest arising out of the estate during her natural
life, and of his will, appointed the said John Masterson and
Christopher Tenant executors ; that the said Henry Masterson
died on the 3d of June, 1819, and that the said John and
Christopher proved the will and took on themselves the bur-
then of its execution, and possessed themselves of the real and
personal estate of the testator, to the amount of six thousand
dollars, beyond all debts, funeral expenses, and legacies. It
averred that the said Elizabeth had always since the death of
the testator, remained single, and had maintained, supported,
and educated the minor children of the testator, and that she
and they had always lived, and still live comfortably together.
By reason whereof the said executors became liable to pay her
the interest of the testator's estate, amounting to the sum of
one thousand dollars, being the amount due to her from the
time of instituting a former *suit against the said ex- r^. 1QQ -i
ecutors, to wit, at August Term, 1829, No. 45, to the "
time of instituting the present suit, and being so liable, the said
executors did assume, &c.

The second count was for money had and received by the
;aid John Masterson and Christopher Tenant, (without naming
them as executors,) for the use of the said Elizabeth Masterson.

The cause was submitted to arbitration, on a rule taken out
by the plaintiff below, and on the 22d of October, 1831, the
arbitrators filed an award in favour of the plaintiff for three
hundred and eleven dollars and eighty cents.

179



138 SUPREME COURT [Philadelphia,

[Mastereon and another, Executors, v. Mastereon.]

From this award, one of the defendants below entered an
appeal in the following form :

In the Court of Common Pleas, &c.

Elizabeth Masterson

Am. Ac. Case.

On the 22d of October, 1831,
John Masterson and Chris- ., . ., . ,,

, _. _. the arbitrators report in favour

topher Tenant, Executors



...
of the last will and testa-



A , , . ,., , , , ,
of the plaintiff, three hundred



, . . A

,, and eleven dollars and eighty

ment of Henry Masterson,

! , ,

decrd.

Be it remembered that on the 29th day of October, 1831,
John Masterson, one of the above-named defendants, appears
in the prothonotary's office, at Norristown, and enters an appeal
from the award of arbitrators in the above case, in the Court
of Common Pleas, of said county of Montgomery.

(Signed)

JOHN MASTERSON.

Taken and subscribed the 29th day of October, 1829, be-
fore me,

J. FRY, JR., Prothonotary

On the same day an affidavit was filed by John Masterson,
that it was not for the purpose of delay that the appeal was
entered, &c., but he gave no bail on the appeal.

A ft. fa. de bonis propriia having issued to November Term,
1831, on motion of the defendant's attorney, a rule was granted
on the 25th of November, 1831, to show cause why thefi.fa.
should not be set aside, and on the same day the plaintiff's at-
torney obtained a rule to show cause why the appeal should not
be dismissed.

On the 3d of February, 1832, both rules were made abso-
lute.

On the 20th of the same month, an alias fi. fa. de bonis pro-
priig was issued, upon which this writ of error was sued out.

The error was assigned in striking off the appeal from the
award of arbitrators.
180



Feb. 13,1835.] OF PENNSYLVANIA. 139

[Masterson and another, Executors, v. Masterson.]

* Rawle, Jr., for the plaintiffs in error, cited M'Cul- _ ,
loch v. Sample, 1 Penn. R. 422; La Fitte v. La Fitte, '

2 Serg. & Rawle, 107; Gallagher v. Jackson, 1 Serg. & Rawle,
492; 2 Sauud. 117, note; 1 Chitty PI. 103; Strohecker v.
Grant, 16 Serg. & Rawle, 237.

Potts, contra, referred to Bixler v. Kunkle, 17 Serg. & Rawle,
298; Morrow v. Breuizer, 2 Rawle, 185; Wilson v. Wilson,

3 Binn. 557.

PER CURIAM.- It has been determined that an action for a
legacy may be brought against an executor, in a representative
capacity, as in Foulk v. Brown, 2 Watts, 209, determined at
the last term for Harrisburg, which was an action of debt in
the detinet. In other respects its features were less distihct,
but the question being open to construction, was decided in a
way best calculated to preserve the constitutional franchise
free from impediment. Can the action before us be so con-
sidered ? The foundation of it is the defendant's promise, not
the will. But as executors cannot promise or covenant as
such, so as to make themselves liable as executors, they are
liable in a representative character, only on the contract of
their testator. Naming them as such, though a circumstance
to be weighed in a doubtful case, such as Foulk v. Brown, is
by no means decisive; to be conclusively so, the declaration
must be framed on the will, and not on any evidence of re-
sponsibility subsequent to it. The defendants, therefore, being
sued on their own promise, were not entitled to appeal with-
out bail.

Judgment affirmed.

Cited by Counsel, 5 Wh. 115 ; 2 Wh. 347 ; 6 W. & 8. 505 ; 7 C. 236 ; 1 8.
344.

Cited by the Court, 3 W. & S. 173 ; 5 Barr, 511 ; 2 J. 350 ; 2 H. 356.



181



140 SUPREME COURT [Philadelphia,



[*140] "[PHILADELPHIA, FEBRUARY 14, 1835.]

Adam Miller and Elizabeth his Wife, formerly Schnei-
der, in Right of his Wife, and Mary Hoffman,
against John Schneider.

CASE STATED.

Testator devised certain real estate in the first instance to his daughters in
fee simple ; and afterwards directed that in the division of the estate, the real
property should be valued and allotted to the sons ; and that the shares and
dividends of his real and personal estate in his will given or intended for his
daughters, should remain and be vested in his wife and sons in trust for the
separate use of his daughters for life, with limitations over in the event of
their death without leaving children. He further directed that the shares
of his daughters should be placed at interest, and the principal and interest
paid to his daughters from time to time, as his executors should think best,
and that the principal of the dividends of his daughters, in the valuation of
his real estate, if taken by his sons at the valuation, should not be demand-
able by his daughters under five years. The sons refused to take at the valu-
ation. Held, that the case had not arisen under which the trusts of the will
as to the daughters' portions could go into operation : and that they were
entitled to partition.

PARTITION. It was agreed that the court should give judg-
ment and award a writ to make partition according to the
purparts of the parties, in case they were of opinion that the
plaintiffs were entitled to partition.

A case was stated for the opinion of the court in substance
as follows :

John C. Schneider, the father of the plaintiffs Elizabeth and
Mary, and of the defendant, died in February, 1802, seized of
the real estate as set forth in the declaration, having made his
last will and testament, bearing date the 14th day of Novem-
ber, 1799, whereby he devised all the residue of his real and
personal estate, to his four children, John, Mary, Michael, and
Elizabeth, their heirs, executors, administrators, and assigns,
to be equally divided between them, part and share alike, as
tenants in common, subject to certain limitations, which are as
follows :

182



Feb. 14, 1835.] OF PENNSYLVANIA. 140

[Miller and another v. Schneider.]

" Provided also, and it is my mind and will, that in the di-
vision of my estate between my said children, all my messuage
and lots of ground in the said city of Philadelphia, shall be
valued by three or more credible and judicious persons, and
allotted at such valuation to my said son Michael Schneider,
and his heirs and assigns : and that my plantation and lands
in Bristol township with the appurtenances, shall likewise be
valued by three or more judicious men, and at such valuation
allotted to my said sou John, and his heirs and assigns :
and that all the shares and dividends of my real and personal
*estate, in this my will, given or intended for my said
two daughters Mary and Elizabeth, shall, during the ^
natural lives of my said daughters, remain and be vested in my
wife, Elizabeth Schneider, and my said sons, John and Michael
Schneider, and their heirs and assigns, in trust for the sole and
separate use and behoof of them my said daughters respec-
tively, so that the husbands of the said Mary and of the said
Elizabeth respectively, shall not have any right or interest
whatsoever therein, neither shall the same be subject to or lia-
ble for the debt or debts of such husband or husbands, but the
same dividend of real and personal estate, or the rents, interest,
and income thereof shall, from time to time, be paid to and
received by my said daughters, each of them for her ,owu divi-
dend into her own hands for her sole and separate use only,
and her own receipts from time to time, taken for the same,
whether sole or covert, and that in case of the death of my
said daughters, or either of them, without child or children
surviving such decedent, such part and residue of the dividend
of the real and personal estate, as shall be and remain then
undisposed of by such decedent, shall revert to and be equally
divided between all my surviving children, and the lawful issue
of them that shall be then deceased, their respective heirs and
assigns, so nevertheless that such lawful issue take and receive
such part and share only, as his, her, or their deceased parent
might have taken if then living." After appointing his said
wife and sons his executors, the will prjseeeds : " And I do will
and direct, that the shares and dividends of my said daughters,
shall at the discretion of my said executors and the survivor

183



141 SUPREME COURT [Philadelphia,

[Miller and another t>. Schneider.]

of them be placed and kept out at interest on good and suffi-
cient security ; and the principal and interest paid to and ap-
plied for the use of my said daughters, from time to time, as
my executors and the survivors of them, from time to time,
shall think best; and that the principal of the dividends of my
said daughters in the valuation of my real estate, if taken and
accepted by my said sous respectively, at such valuation, shall
not be demaudable by my said daughters under five years,
which I think is a sufficient time to enable my sons to raise and
pay the money, but the interest shall accrue and be paid an-
nually during that time."

Michael and John, to whom portions of the real estate were
allotted, to be taken at a valuation, declined to accept the same.
Michael died in August, 1822, unmarried, intestate, and without
issue, leaving the plaintiffs, Elizabeth and Mary, and the de-
fendant, his heirs, and next of kin.

Hubbett, for the plaintiff, contended that the plaintiffs were
entitled to partition. The limitation in trust for the separate
use of the daughters for life, and then over did not take effect ;
that provision in the will being intended to operate only in
case the sons took at the valuation. Even if the trust did
r*l491 a " se > tne daughters were *equitable tenants for life,
with full power of appointment. And in Pennsyl-
vania the owner of an equitable estate may maintain partition.
Brown v. Willing, 7 Serg. & Rawle, 467. He also cited Sudg.
on Powers, 97 ; 2 Dall. 257.

Troubat, contra, admitted that the plaintiffs could recover
their shares of Michael's fourth part. But as to the daughters'
shares under the will, should partition be allowed of them, it



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 5) → online text (page 16 of 46)