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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 2) online

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Dec. 1841.] OF PENNSYLVANIA. 421

[Ellet v. Paxson.]

unknown to me at this time. Whatever the amount of his share
of my real estate falls to him, my will is, that he receive the in-
come thereof during his natural life, after his death to go to his
said three daughters, or the survivor, in fee simple, for and to their
only and exclusive use, share and share alike, as tenants in com-
mon ; and I by this my will protest against any sale or convey-
ance of the same, so as to injure the principal or deprive them of
my intention ; their guardian may bring this my will as a. bar to
any conveyance for term or time, except a rent lease for a short
or a reasonable period, always having strict regard to paying taxes
and keeping in good repair the premises.

My will is that my estate be divided, after a careful valuation
of all, and every part separately appraised, according to the fol-
lowing division or delineation, viz. :

Item No. 1. That part of my Hamburgh land and tenement,
barn, &c.

Item No. 2. Is all the remainder of land and buildings that is
or may be between the upper line of No. 1 and the line that di-
vides George Baket and my land on the north, &c.

Item No. 3. Is the place called Cherry Green, containing about
12 acres, with all the improvements, &c.

Item No. 4. Is all that three-story brick house and lot of ground
situate on the north side of Walnut street between third and Fourth
streets, bounded, &c.

Item No. 5. Is the livery stables in Harmony and Hudson's
courts, including the carriage-house and brick buildings on Har-
mony street from the corner of said carriage-house till divided by
the gable-end wall of the three-story house occupied as a tavern
by Knight, &c.

Item. No. 6. Is contained in the remainder of the lot and im-
provements from the north-east corner of Fourth and Harmony
streets, till it reaches the east end wall of the three story house
now occupied as a tavern, &c.

Item. And as this division of my property is of course unequal,
and for the purpose of equalizing the same as near as possible, my
will is, that the undermentioned property be applied by my execu-
tors to remedy the same, viz. the house and two acres and ten
perches of land in Passyunk township, &c. &c.

Item. I bequeath to Mary Ellet a book called the Life of Christ,
by Wesley, in heroic poetry, with the bookcase, made by myself;
also Josephus, with one-sixth part of my books. I repeat it again,
that all that I have willed to her of my real estate is to be handed
down to her children in fee simple, as tenants in common, she only
to enjoy the income during her life, under the penalty, if, by any
manner whatever, a conveyance or sale for term or length of time
should be made, then the income to be taken out of her hands, and
be divided between her brothers and sisters, preserving the prin-
cipal for her children, to be secured and taken care of after her

II. 2L

422 SUPREME COURT [Philadelphia

[Ellet v. Paxson.]

death, by guardians appointed by the Orphans' Court, by no
means related to them in any manner whatever. My daughter
Mary to have the management of the same during her life, but no
other person.

Item. In like manner, the portion that falls to my grand-children,
Samuel Israel's three daughters, after deducting the sum of $9000
due to me as the mortgage specifies, and as I have in this my will
delineated, is to be secured to them, Samuel enjoying the income.
I forbid any charge being made by either Samuel, or those who
have the bringing up the children, so as to obtain a hold of the
property, till after the death of my son Samuel, and daughter
Mary, shall not be allowed.

Item. It is my will and intention that when the aforesaid six
divisions or shares of my real estate shall have been valued and
appraised as aforesaid, that my daughter Mary Ellet shall first
make her choice of said shares, my daughter Hannah shall have
the second choice of said shares, and the remaining four shares
shall be divided among my sons as they shall mutually agree
among themselves."

The plaintiffs then gave in evidence the deed of partition among
the children.

The plaintiffs then called William J. Duane as a witness. It
being submitted to the court that he ought not to be allowed to be
sworn as a witness, he being one of the executors and defendants,
the judge reserved the point, and directed him to be sworn, when
he testified as follows :

In 1831, I was authorized by Mr Girard to negotiate for the
property in Harmony Court. He was anxious to buy the pro-
perty, and requested me to endeavour to purchase it for him. He
considered it a nuisance to his other property.

Cross-examined The negotiation was followed by an inchoate,
an incomplete bargain. There was to be a title. I have no re-
membrance of having seen any papers but the will of Israel Israel ;
I may have seen others. Doubts arose in my mind from reading
the will. I conversed with Mr and Mrs Ellet on the subject of
these doubts, and suggested the propriety of removing the difficul-
ties by an Act of Assembly. Mr and Mrs Ellet had no one, that
I am aware of, to attend to that part of the business. I entered
into it with a great deal of zeal, knowing Mr Girard's anxiety to
have the property. It is highly possible that I volunteered my
aid to Mr and Mrs Ellet to procure the Act of Assembly. I drew
a petition to the legislature, with the participation of Mr and Mrs
Ellet, and probably Mr Israel. A correspondence took place with
Dr Burden, a member of the legislature. The petition was sent
to him to present. Do not know if I sent it to him or if Mr Ellet
did. Mrs Ellet suggested Dr Burden as the person to whom to
send the petition.

My impression is that there was another doubt on the title be-

Dec. 1841.] OF PENNSYLVANIA. 423

[Ellet v. Paxson.]

sides the one that was to be cured by the Act of Assembly. Mr
Ellet was to get it removed by obtaining the consent of Samuel
Israel's three daughters, who lived in Hayti. I can truly say that
I acted as much the agent of the Ellets as of Mr Girard. If Mr
Girard had lived, I should have persevered, and, I believe, have
completed the bargain the removal of difficulties, of course, con-
tingent. In answer to a question of Mr Meredith (Mr Girard, on
the receipt of a title satisfactory to him, was to pay $15,000), I
had forgotten the price till I came into court this morning, I
thought it was 813,000. I am now impressed with the belief that
it was $15,000. I have no doubt of it. I have no remembrance
of any thing in the fall before Mr Girard's death. After his death
I was surprised when Mr Ellet called on me. I thought the whole
thing had dropped on Mr Girard's death. I would not have ac-
cepted the property before Mr Girard's death, either for him or
myself. I certainly expected that the difficulties would be re-
moved. I was never authorized by Mr Girard to contract in his
behalf to aid in removing the difficulties in the title. I was not
authorized by Mr Girard to bind him to sign, execute and prepare
documents, &c. necessary to complete title. I acted as much out
of friendship for the Ellets as the agent of Mr Girard. I never
contemplated that Mr Girard was to pay the expense of procuring
the title, nor was I authorized by him so to stipulate.

He never authorized me to bind him by a contract to procure
from the legislature the passage of the Act. It was a case in
which, if ever right, a counsel should have been feed by both

I think Mr Ellet went to Harrisburg himself. I was anxious to
accomplish an object both for Mr Girard and the Ellets.

I did not inform Mr and Mrs Ellet that I was authorized by
Mr Girard to endeavour to procure an Act of Assembly.

I could not have informed them of what did not exist. It is
highly probable that I spoke to Mr Girard, and that he recom-
mended me to assist them in procuring the Act ; it was to be done
by them, and not by him.

Re-examined Mr Girard authorized me to negotiate for the
purchase. The price was a subject of conversation ; he received
their demand, and then considered it, and finally agreed, that on
the completion of a good title, when the difficulties were removed,
he would pay them $15,000. Mr Girard said the price was enor-
mous. Girard wanted to buy. I went to them ; finally, he said,
I will give it, if they can make a good title. I then saw the will.
All further action, on my part, was as the friend of Ellets. I
reported to Girard the price. He may have told me, Mr Duane,
help these people ; help these people to get the title. I drew the
petition, and had correspondence with Dr Burden.

I reported to Mr Girard when they agreed to accept the price ;
he said, assist these people to get out of the difficulties of making

424 SUPREME COURT [Philadelphia

[Ellet v. Paxson.]

title. It is very probable that I forwarded the papers to Harris-
burg, and also that I drew the bill ; my impression is, that I drew
the bill ; I have no remembrance of taking any steps to procure
the passage of the bill ; I considered that the examination of title
was left to me; but he would decide for himself in all cases, and
did often decide on titles differing from me in opinion. I have
already said he was satisfied with the price, if a good title could
be made.

Michael E. Israel sworn. In the summer or fall of 1831, Mr
Duane called on me as the agent and attorney of Mr Girard, and
wished to know if the property in Harmony Court was for sale.
I stated that I would write to Mr and Mrs Ellet, the owners, and
ascertain their views. I did write, and received for answer that
$18,000 was the price. I communicated this answer to Mr
Duane, and said I thought there were impediments in the way of
making title, and either verbally, or by exhibiting the will, showed
him what the impediments were : he replied he thought they could
be removed, but the price was beyond Mr Girard's views. I
again wrote, begged Mr Ellet to fall in his price he did so-
named $16,000. Communicated with Mr Duane, stated he was
authorized to give $15,000 (what follows, objected to at the time
as out of the agency) he would undertake to transact the entire
business in regard to obtaining the title, by drafting a bill and
memorial to the legislature, free of cost to Mr and Mrs Ellet
that they should be paid the nett sum of $15,000 desired me to
write, and state that price as the ultimatum of Mr Girard, and
request Mr and Mrs E. to come to the city, if they accepted those
terms I made this communication ; Mrs E. came to town, and I
went with her to Mr Duane's office said she had come to nego-
tiate with him about the purchase Mr Duane again said, that
he would undertake the entire business of completing the title
she consented, and requested Mr Duane to put the agreement in
writing he appeared engrossed in business ; said he was in a
hurry, it was unnecessary to enter into any writing with Mr
Girard his verbal engagements were as binding as his written
ones, and that he was satisfied that Mrs Ellet's were also saw
the memorial and the bill in Mr Duane's hand-writing they were
handed to me to be forwarded to Bristol for signature, and were
returned to him by me. The bill was passed in May 1832 he
said Mr Girard was anxious to have the property; it was an eye-
sore, which he wished to remove.

The property was a two-story brick building, occupied as a
stable ; the buildings are 30 or perhaps 40 years old, in tolerable
repair the interior appears dilapidated it rented, at the time of
the agreement, at $600 to $650 per annum : by an expenditure of
$10,000, it would be made to produce an annual income of $3000
I cannot speak of the market value.

Cross-examined The impediments spoken of, were the restric-

Dec. 1841.] OF PENNSYLVANIA. 425

[Ellet v. Paxson.]

tions in the will of my father the one prohibiting Mrs E. from
selling there was no other, that I am aware of.

Re-examined I do not recollect calling on Mr Duane after the
passage of the Act. I tendered this deed in company with Mr
Ellet : saw Messrs Paxson, Barclay, Duane, and Roberts, on the
17th of June 1835; Mr Ellet asked for the amount of the purchase
money they declined to pay the money or take the deed.

William J. Duane recalled Mr Ellet called on me in the
spring of 1832. I told him that Mr Girard was dead, and that
all was at an end he was to be the judge of the title it had
been a contingent arrangement altogether it is all over now, I
am very sorry for you. Mr Girard died 26th December 1831.'

Thomas Mitchell affirmed. I am acquainted with this property
its intrinsic value is $10,000. If I owned the property, I would
not sell for that I would give $10,000: the value has not changed
since 1831.

The plaintiffs produced the following Act of Assembly :

" An Act to authorize the sale of certain real estate of Israel
Israel, late of the city of Philadelphia, deceased.

SEC. 1. Be it enacted, &c. That upon the petition of Mary
Ellet and her husband, Charles Ellet, to the Orphans' Court of
the city and county of Philadelphia, the said court is hereby
authorized to appoint a trustee, or trustees, to sell and convey all
or any part of the share of the real estate of Israel Israel, late of
the said city, deceased, which was allotted to, and taken by,
Mary Ellet, daughter of the said deceased, for her use for life,
and for her children in fee : Provided, however, that before any
sale shall be made, the Orphans' Court of the said city and county
of Philadelphia shall prescribe the time, place, and manner, in
which the said sale shall be made, and shall also prescribe such
acts to be done by the said trustee, or trustees, as shall secure
the safe and permanent investment of the funds arising from such
sale, the payment of the income therefrom to the said Mary Ellet
for life, and the payment and distribution of the principal, after
the decease of the said Mary Ellet, to and among her children,
and the issue of any deceased child or children, the latter to take
only the parent's share: And provided, also, that before the deed
or deeds for the same shall be valid, the security or investment
of the moneys arising from the sale, and the sale itself, shall be
submitted to and approved by the said court.

Approved, 7th of May, A. D. 1832."

The following proceedings of the Orphans' Court were read in
evidence :

Philadelphia County, ss.

Be it remembered, that at an Orphans' Court for said county,
held on the 20th day of February, A. D. 1835, Charles Ellet and
Mary Ellet presented a petition in the words following, viz :
H. 54 2L*

426 SUPREME COURT [Philadelphia

[Ellet v. Paxson.]

" To the Orphans' Court for the city and county of Philadelphia,

The petition of Charles Ellet and Mary Ellet his wife, respect-
fully showeth : That Israel Israel, late of the city of Philadelphia,
deceased, did, during his lifetime, viz. on the 2d day of October
1817, make his last will and testament in writing, and thereby
devised that his real estate should be divided into six shares, or
purparts, according to the number of his children ; and that the
said Mary Ellet should have the election or choice of said pur-
parts, but that she should only have a life estate in her purpart,
with remainder to her children in fee. That the said Mary Ellet,
after the death of the said testator, accordingly made election of
the purpart in said will designated as No. 5 being certain
tenements in the city of Philadelphia, in said will particularly
described. That a certain Act of the Legislature of the Com-
monwealth of Pennsylvania was passed on the 7th day of May
1832, by which it was provided that, upon the petition of Mary
Ellet and her husband, Charles Ellet, to the Orphans' Court for
the city and county of Philadelphia, said court were authorized
to appoint a trustee, or trustees, to sell and convey all or any
part of the share of the real estate of Israel Israel, late of the said
city, deceased, which was allotted to, and taken by, the said
Mary Ellet, daughter of the said deceased, for life and for her
children in fee.

And your petitioners further show that a large part of said
property consists of a livery-stable in Harmony Court, in the city
of Philadelphia, and is tenantless and unproductive, and can only
be made so by extensive improvements, which the said Mary
Ellet, being only a tenant for life, has neither the right nor ability
to do so. That her whole purpart consisting of contiguous build-
ings, can be most advantageously sold by being sold together.

Your petitioners therefore respectfully pray your Honourable
Court to appoint a trustee or trustees to carry into effect the provi-
sions of the Act of Assembly aforesaid, and they will ever pray, &c.


Annexed to which petition was the affidavit of Charles Ellet.

Whereupon the court made the following order, viz. : the court,
in pursuance of the within petition, appoint Elijah Dallet trustee
for the purposes prescribed by the within recited Act of Assembly.
The time, place, and manner of sale, and all the other directions
as to the security or investment of the fund to be produced by
the sale, to be made upon a future application to the court.

And, at an Orphans' Court for the county aforesaid, held on
the 18th day of April A. D. 1835, Charles Ellet, Mary Ellet, and
Elijah Dallett, presented a petition in the words following, viz. :

To the Honourable the Judges of the Orphans' Court, in and
for the city and county of Philadelphia :

Dec. 1841.] OF PENNSYLVANIA. 427

[Ellet v. Paxson.]

The petition of Charles Ellet and Mary his wife, and Elijah
Dallett, trustee of the estate of the said Mary, &c.

Respectfully showeth : That your petitioners, Charles and Mary
Ellet, in the lifetime of the late Stephen Girard, made a contract
with him (through W. J. Duane, Esq., his attorney), for the sale
to him, clear of all encumbrance, of certain premises, situated on
the east side of Hudson's Alley, and north side of Harmony
Court, in the city of Philadelphia ; containing in breadth on said
court, 24 feet 9 inches by 123 feet more or less in length, for the
price or sum of $15,000 ; the same premises being part of said
Mary Ellet's share of the estate of Israel Israel deceased. That
the title to be made by the said Charles and Mary Ellet being
objected to on the part of Mr Girard, Mr Duane, as his agent,
undertook to procure the passage of an Act of Assembly under
which a title could be made ; and a petition to the legislature was
drawn by him, and accordingly signed by the said Charles and
Mary Ellet, in consequence of which the Act of Assembly was
passed, under which Elijah Dallett aforesaid has been appointed
trustee by your Honourable Court.

Before the passage of the said Act, Mr Girard died. Said pre-
mises are subject to a yearly rent charge of $123 T \ 7 , held by
Charles Ellet. Your petitioners now pray your Honourable
Court to approve of the said sale, and order the trustee aforesaid
to make a deed of the premises to the executors of the said Ste-
phen Girard in trust for the person or persons who may be enti-
tled, as his heirs or devisees, to the said premises, and to receive
the price or sum of $15,000 as aforesaid (less $2058 T 3 o 3 o> the prin-
cipal of the said rent charge), from the said executors, and also
that your Honourable Court will approve of Charles Ellet as
security for the due investment and application of the said moneys
by the said Elijah Dallett, when they shall be received by him as
aforesaid. And your petitioners, &c.


Whereupon the court granted the prayer of the petitioners,
and made order accordingly.

And, at an Orphans' Court for the county aforesaid, held on the
3d day of June A. D. 1835, a bond was presented to the court,
and ordered to be filed, in the words following, viz. :

" Know all men by these presents, that I, Charles Ellet, surety
of Elijah Dallet, trustee of Mary Ellet, am held and firmly
bound unto the Honourable Edward King, President Judge of
the Orphans' Court for the city and county of Philadelphia, and
his successors in office, in the sum of $30,000, to be paid unto
the said obligee and his successors in office, to which payment,
well and truly to be made, I do hereby bind myself, my heirs,

428 SUPREME COURT [Philadelphia

[Ellet v. Paxson.]

executors, administrators, and assigns, and every of them firmly
by these presents, sealed with my seal, and dated the 3d day of
June A. D. 1835.

The consideration of the above obligation is such, that if the
above named Elijah Dallett, trustee of the estate of Mary Ellet,
shall well and truly invest, apply, and account for the sum of
$12,941.67, being the purchase money of said trust estate in Har-
mony Court, directed by order of the Orphans' Court for the city
and county of Philadelphia, made on the 18th day of April, now last
past, to be conveyed by the said trustee to the executors of Ste-
phen Girard, or if the said purchase money shall not be paid by
the said executors to the said trustee, then the above obligation
to be void, or else to be and remain in full force and virtue.


Sealed and delivered
in the presence of us.

The plaintiffs then read, deed, Elijah Dallett, trustee, Charles
Ellet and Mary his wife to William J. Duane and others, execu-
tors, &c.

Wm. J. Duane, re-examined Mr Ellet called on me in the
spring of 1832. I told him that Mr Girard was dead don't
know if he told me that he expected the contract would be ful-

Cross-examined The contract was made as I have repre-
sented it.

M. E. Israel, re-examined I considered Mr Duane as the agent
of Mr Girard; he urged Mrs Ellet to sell for $15,000, and that
the expense of procuring the Act of Assembly would be $500,
which Mr Girard was to pay.

Wm. J. Duane, re-examined I never undertook for Mr Girard
to complete the title. I did not see Mr Girard on the subject
before the conversation in my office.

Mr Girard requested me to send the bill and petition to Harris-

The plaintiffs here closed their testimony.

The defendants offered no testimony.

The learned Judge charged the jury as follows :

It now becomes your duty, under the instruction of the court,
to decide upon the conflicting allegations in this somewhat com-
plicated case, and to determine the amount of damages, if any,
which are due to the plaintiffs.

The state of the law in Pennsylvania in relation to such con-
tracts is somewhat peculiar.

In England parties have been prohibited by statute from acquir-
ing title by, or sustaining actions upon mere verbal contracts for

Dec. 1841.] OF PENNSYLVANIA. 429

[Ellet v. Paxson.]

the purchase and sale of real estate. And the reason is found in
the danger and difficulty of relying on mere verbal testimony in
so important a matter.

In Pennsylvania, too, you probably know from your own expe-
rience, that, as a general rule, no title to real estate passes by a
mere contract, unless it is reduced to writing. We have an Act
of Assembly which declares the law passed in 1772, which I now
read to you. And, therefore, under a contract not in writing, the
title does not pass.

But, although the contract be not in writing, and although the
estate for that reason does not pass, may not the vendor have an
action against the vendee for breach of this verbal contract ? It
has been decided that he may.

In the case under trial, the contract is merely a verbal one, and
an action may be sustained for a breach of it. It is probable if
Mr Girard had lived the contract would have been completed, but
unforeseen circumstances have occurred, and the parties stand
upon their rights. The executors of Mr Girard would not be
justified in doing any thing which the law does not require.

The plaintiff then says he is entitled to a verdict for the agreed
price of $15,000, or more, to be released on acceptance of the title
and payment of the purchase money.

I do not agree to this. To do this would be to subvert that Act
of Assembly ; you might as well repeal it ; and I therefore in-
struct you accordingly ; I have no doubt upon this point.

Then the question recurs if there has been a contract, and
that broken, what damages is the injured party entitled to ? The
jury may give such damages as the circumstances of each case
require, which may sometimes be small.

This very case shows the policy of the English rule ; here, the
witnesses called by the same party differ in their statement of

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 2) → online text (page 48 of 68)