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May 1834.] OF PENNSYLVANIA. 207

[Ziegler v. Long.]

time. He stands before us in the light of a bona fide purchaser, and
as such is entitled to protection. For knowing that the first judg-
ment was a prior lien on all the lands of Martin Long, he Fiad a
right to conclude that Martin's other lands would pay Hoffman's
judgment, and thus relieve his land from the existing lien. A prior
purchaser of lands bound by judgment, is not bound, in any respect,
10 aid a subsequent purchaser from the debtor, in case the lands of
the latter are sold to pay the judgment. The latter stands in the
place of the debtor himself, who could not have contribution or re-
lief, but must pay his debts from his own property. Nailer v. Stan-
ley, 10 Serg. <$ Rawle 450. On the other hand, the prior purchaser
is entitled to relief, if his land is first charged ; and if Ziegler really
paid the whole consideration money, he could have gone into a
court of equity, where such a court exists, and have compelled Hoff-
man to take his judgment out of the proceeds of sale of M. Long's
other lands, or, on paying the amount, to assign it to him, to enable
him to substitute himself as judgment creditor, and levy from other
lands the amount thus paid. In the present instance, Ziegler has
done exactly this. He has paid Hoffman his judgment, and taken an
assignment of it, thus effecting by voluntary arrangement what a
court of equity would decree : and he has a right to call on the aid
of the court for the rest, by ordering him the amount from the mo-
neys paid into court. His equity, then, as a purchaser, is superior
to that of J. Long as a creditor: and he has the prior lien at law by
the assignment of Hoffman's judgment.

Other grounds have been taken as objections to the claims of
Ziegler. It is alleged, that Hoffman's proceeding to a levy and con-
demnation and venditioni exponas of the land purchased by Ziegler,
amounted to an election of that fund, which he or his assignee can-
not relinquish. I will not say that a judgment creditor who has
proceeded so far, can, at his will and pleasure, desert his process, and
adopt a different course against his debtor. But when by other
sales money is brought into court to which the plaintiff is entitled,
by having the first lien and the prior equity (as it is assumed, at
present, Ziegler is), he may waive that proceeding and receive the

It is objected, that there was laches in Hoffman in not applying
for the money at an early day ; and also in Ziegler, in not moving
the court to set aside the levy on his land, and direct Hoffman's exe-
cution to be levied on other land of M. Long. To this it is answered
by the plaintiffs in error, and I think satisfactorily, that by a rule to
show cause, (on whose behalf does net appear) Hoffman's judgment
and execution were suspended until February 1826, when the rule
was discharged. The money was not paid into court till June 1826,
and this issue was directed in May 1827. Whilst the validity of all
the proceedings in Hoffman's suit was thus in question, no steps
could be taken by Hoffman as plaintiff, to procure his money, or by
Ziegler as purchaser, to transfer the levy.

208 SUPREME COURT [Harrisburg

[Ziegler v. Long.]

Authorities have been cited from 3 Rep. 11, Sir William Harbert's
case, and 2 Williams' s Saund. 9, 10, to show, ilmt the only remedy
in the power of the defendant, where his land is unjustly levied on, is,
by scire facias or audita querela, to have other lands of the debtor
extended. But while Hoffman's execution and levy stood suspended
by (he rule to show cause, it was not competent to Ziegler to do
cither. Besides, though this is the proper remedy at law, yet if in
equity Ziegler had a just claim, he is entitled to priority of payment.
For our courts, acting as courts of equity, on a fund within their own
control, award it to him who has the better right, by constant prac-
tice, and by the express words of the act of the 16th of April 1827,
relative to the distribution of money arising from sheriffs' and coro-
ners' sales. Hence these ancient proceedings spoken of in the Eng-
lish books are not resorted to in our practice. 1 Yeates 9.

It is further said, that Ziegler, when he purchased of M. Long,
undertook to pay this debt to Hoffman, or reserved a portion of the
consideration money for that purpose or if he did not, that it was
his duty to do so, and having omitted this duty, another ought not
to suffer by his neglect. This case will go back to another trial, and
if upon that trial it can be made to appear that Ziegler thus under-
took, or in any way agreed to pay Hoffman's judgment, or reserved
a portion of the consideration money with this design, he will not be
entitled to the money in dispute or, at least, he is precluded to the
amount thus undertaken or reserved. Some evidence was given
by the plaintiff with this view on the trial : of the weight to be given
to it, it would be improper now to speak. If nothing of the kind
took place, then Ziegler was not bound to reserve any portion of the
consideration money. He had a right as purchaser of the land,
which the assignment of the judgment to him in no manner devest-*
ed, to insist that M. Long's other lands should defray it, and the con-
test now is to enforce that right.
Judgment reversed, and venire facias de novo awarded.

May 1834.] OF PENNSYLVANIA. 209

Foulk against Brown.

In an action against an executor in his representative character, by a legatee
to recover a legacy, the defendant may appeal from an award of ^arbitrators
without the payment of costs.

The only effect of the settlement of an administration account in the orphan's
court is, to show the balance of assets in the executor's hands after the payment
of debts and charges, and can have no bearing upon the amount due to legatees,
or to repel presumption of the payment of a legacy which arises from lapse of

After a lapse of twenty years, all evidences of debt, excepted out of the sta-
tute of limitations, are presumed to be paid. Within the twenty years, the onus
of proving payment lies in the defendant : after that time, it devolves on the
plaintiff to show the contrary.

The rule in regard to the statute of limitation, that when time has begun to
run, it suffers no interruption from the occurrence of circumstances that would
otherwise prevent its application, does not apply to the case of a legal presump-
tion from lapse of time.

A citation to executors, to appear in the orphan's court and settle their
administration account, issued at the instance of the legatee, within twenty
years from the time a legacy becomes payable, is a claim of such legacy by
legal proceeding, and a bar to the presumption of payment.

The death of a feme covert legatee, whose husband survived her, and that
no administration was taken upon her estate, are not such facts as will repel
the presumption of payment of the legacy which arises from lapse of time.

Though the recovery of a legacy payable upon the death of the testator may
be barred by lapse of time, yet a residuary bequest in the same will, legally pro-
secuted, within twenty years, may be recovered.

ERROR to the common pleas of Cumberland county.

Action of debt by Lewis Foulk, administrator of Isabella Foulk
deceased, against Thompson Brown, executor of William Brown,
Sen. deceased, to November term 1829. The following declaration
was filed, and exhibits the plaintiff's cause of action, and the dates
of the material facts which gave ri?e to the questions of law, except
that Lewis Foulk presented a petition to the orphan's court in 1827,
for a citation to Thompson Brown to settle his administration ac-

Cumberland county, ss. T. Brown, late of said county, execu-
tor of the last will of William Brown, Sen. deceased, was attached to
answer L. Foulk, administrator of all, &c. of Isabella Foulk deceased,
of a plea, that he render unto him 3749 dollars 65 cents, which
to him he owes, and unjustly detains, <^c. ; and thereupon the said L.
Foulk by, &c., complains, that whereas the said William Brown
deceased, in his lifetime, viz. 3d of April 1802, at said county, made
his last will and testament in writing, bearing date the same day and
year, and thereby, among other things, did will, bequeath and di-
rect, that after payment of his debts, funeral expenses and specific


210 SUPREME COURT [Harrisburg

[Foulk y. Brown ]

bequest?, the residue of his cash and moneys arising from his bonds
and oilier debt?, and from (he sales of his personal and real estates,
be equally divided to and among*! his wife, M. Brown, and all his
children, viz. his sons, Arthur, William, George and Thompson,
ami his daughter.-', Isabella (the plaintiff's intestate) and Lucy,
saving only the difference occasioned by certain deductions, viz. the
shares of his wife M., his son T. and his daughter L., to be equal
and alike ; his son A. to have 300 pounds less than either of them ;
William's share to be less than theirs by the sum of 200 pounds ;
George's to be less by the sum of 100 pounds ; and the said Isa-
bella's to be less than theirs by the sum of 250 pounds; and further,
that by the said bequest to his wife, it was not his intention that she
should have the absolute property in and disposal of the same; it being
his meaning only that she should have the interest of the money
during her natural life, and that the principal, or such part as may
remain at her death, be divided, on her decease, equally amongst all
his children, or their respective heirs, viz. his sons A., W., G. and
T., and his daughters I. and L., share and share alike. And, of his
said will, appointed the same Thompson Brown and William Brown
and James Duncan the executors, as by the said will, &c. And
the said Lewis, in fact, saith, that afterwards, viz. ISthof May 1802,
at said county, the said William Brown, Sen., died, and the said
Thompson Brown, William Brown, Jun. and James Duncan, then
and there du\y proved the said will, and took upon themselves the
burthen of the execution thereof, and possessed themselves of the
personal and real estate of the said testator, and proceeded to
sell the goods and chattels, lands and tenements of the said testator,
and received *the prices thereof, and collected the moneys due to
the said William Brown, Sen. at the time of his death. The said
William Brown, Jun. has since died, and the said James Duncan
has removed from and left the state of Pennsylvania, and has relin-
quished and abandoned the administration of the estate of the said
testator. And the said Lewis further saith, JW. Brown, the widow
of the said testator, died on the \8th ofJlfay 1808, having received no
part of the principal sum of the said legacy so bequeathed to her ;
and also that the said Isabella Foulk was the daughter of the said
testator, and one of the legatees named in said will, and died on the
1st of January 1804; and letters of administration on her estate
issued to the said Lewis on the 7th of May 1827. And the said Lewis
further saith, that the said T. Brown, as such executor, did exhibit
in the register's office of said county, his account of his administra-
tion of the estate of the said testator, which account was examined
and passed by the said register, on the 12th of January 1828, and
was allowed and confirmed, agreeably to Jaw, by the orphan's court
of said county, on the 13lh of February 1828, by which account it
appeared, that there was a balance of the assets of said testator, in
the hands of the said Thompson, as such executor, amounting to
27,123 dollars 67 cents, which sum the said court then and there

May 1834.] OF PENNSYLVANIA. 211

[Foulk v. Brown.]

ordered and decreed to be distributed, according to the said will.
And the said Lewis further avers, that the proportion and part thereof,
so as aforesaid bequeathed to the said Isabella, and due and payable
to him as her administrator, agreeably to the said will and decree,
does amount to the aforesaid sum of 3749 dollars 65 cents, lawful
money, together with interest thereon from the said 13th of Febru-
ary 1828, of all which the said Thompson, on the day and year last
aforesaid, had nqtice : nevertheless, the said T., although often re-
quired so to do, hath not paid the said sum of 3749 dollars 65 cents,
nor any part thereof, to the said Isabella, in her lifetime, nor to her
said administrator since her death ; but the same to pay hitherto
hath refused, and still doth refuse, to the damage of the said Lewis
8000 dollars, and therefore he brings suit, &c."

And, on the same day, rule of arbitration entered by plaintiff,
under the arbitration law. On the 13th of January 1830, arbi-
trators were appointed by the parties, who reported, on the 10th of
March 1830. that they did find for plaintiff 4215 dollars 85 cents,
with costs, which was filed, and judgment nisi entered thereon, on
the same day. On the 24th of March 1830, the following entry
was made on the said docket of said suit. " I appeal from the
award of arbitrators, rendered in this suit," signed, "Thompson
Brown, executor of William Brown, Sen." 13th of April 1830, on
motion of Mr Carothers, rule to show cause why the appeal entered
by defendant should not be stricken off. 14th of May 1830, rule
discharged by the court. The defendant pleaded payment with
leave, and plaintiff replied nonsolvit and issue. 19th of January 1832,
tried and verdict for defendant.

The defendant's counsel rested their defence upon the lapse of
time which had occurred from the time the legacy was payable,
until suit was brought.

In answer to this, the plaintiff said that the settlement in the
orphan's court in 1828 was conclusive of his liability to pay ; that
there were items of charge in the account which were dated within
twenty years from the commencement of the action ; that there
were items in it without date ; and that the residuary bequest to the
plaintiff's intestate was not payable until the death of the widow in
1808, and the citation to T. Brown was issued within twenty years
from that time.

The court below charged the jury that the settlement in the
orphan's court was conclusive of every thing which it purported to
settle, but not of liability to heirs : that if there were items of
charge in the account received within twenty years from the com-
mencement of this suit, the presumption of payment would not
arise as to them. That the items without date were referable to the
jury on the same grounds: that inasmuch as more than twenty
ye"ars had elapsed from the death of the widow until this suit was
brought, the presumption of payment did arise as to the legacy pay-
able at her death.

212 SUPREME COURT [Harrisburg

[Foulk v. Brown.]
The jury rendered a verdict for the defendant.

Alexander and Carothers, for plaintiff in error.

The settlement in the orphan's court, and the decree of distribu-
tion according to the will, were conclusiveof the accountant's liability,
and the presumption begun to run only from that time : but at all
events there were charges in the account against the executor which
bore date within twenty years from the time when the citation is-
sued ; and the issuing of a citation within twenty years, was the
commencement of a legal claim. The legacy payable upon the
death of the widow, was legally demanded within twenty years.
Purd. Dig. 564, tit. Legacy; Ibid. 666, tit. Orphan's Court; Ibid. 669,
No. 13 ; Ibid. 671, No. 19 ; 2 Rawle 301. Thompson Brown having
settled an administration account in the orphan's court, by which a
balance was found to be in his hands, which the court decreed he
should pay to the legatees; this action was brought to enforce that
decree, and was necessarily against him personally, and calling him
executor was a mere description of the person. If, then, the action
was in fact against him personally, to recover that which was owing
by him, and not by the estate of his testator, it would not be within
either the letter or spirit of the act of assembly that he should have
the right to appeal without paying costs. 8 Serg. fy Rawle 402 ;
Selby v. Dailey, 2 Serg. fy Rawle 548 ; Wilson v. Wilson, 3 .Bum.

Watts, for defendant in error.

The settlement of an administration account by the orphan's court,
is an exhibition of the amount of the estate and of the debts and
expenses of administration paid out of it, and does not at all involve
the question of payment to the heirs. The question, then, in this
case being as to the legal presumption of payment from lapse of
time, that which did not involve the fact could neither raise or repel
the presumption. M'Lean v. Finlay, 2 Penns. Rep. 97. The compu-
tation of time begins when the right of action accrues. Diermer v.
Sechrist, 1 Penns. Rep. 420. The citation to the executor to settle
his account was not a legal demand of the legacy, because no such
suit could result from it, nor could the question of payment arise in
any stage of the proceeding upon it. It called upon the executor
to account, which he did : and the account itself certainly does not
repel the presumption that the legatees were paid. This action was
a legal demand, and had no connection with the citation or other
proceedings in the orphan's court. The defendant had a right to
appeal without the payment of costs. The writ was against him as
executor : the narr. is against him as executor, and avers the death
of one executor : the will is set out : a refunding bond given to him
as executor : and no part of the declaration lays any promise by the
defendant to pay. It is the policy of the law to encourage appeals,
that the party may have the benefit of a jury trial.

May 1834.] OF PENNSYLVANIA. 213

[Foulk v. Brown.]

The opinion of the Court was delivered by

SERGEANT, J. The first error assigned is, that the court erred in
sustaining the appeal of the defendant, entered without oath or bail.
The appeal was entered in this manner under the proviso in the
fourteenth section of the act of the 20th of March 1810, that where
executors or administrators may be the party appellant, they shall
have an appeal as is by law allowed in other cases. The construc-
tion of this proviso has been, that they may enter their appeal with-
out oath, without payment of costs, and without recognizance in the
natureof special bail. Insurance Company of Pennsylvania v. Hewes,
5 Binn. 508. But the plaintiff contends that the proviso applies
only where the executor is sued as such, and not where the claim is
against him personally : and that this action for a portion of the resi-
duary bequests under the will, is against the defendant personally,
and not as executor. It is certain that a distinction prevails in many
important respects, between suits brought by or against executors in
their individual and their representative capacities. And if the suit
were clearly against the defendant in the former character, there
would be great reason why he should not be permitted to avail him-
self of the privilege of appealing without a compliance with the usual
terms. It seems to have been thought in Durdon v. Gasldll, 2Yeates
268, that an action for a legacy could not be brought against an
executor individually ; but in Clarke v. Herring, 5 Binn. 33, it was
decided that it might. The declaration in the latter case was a spe-
cial assumpsit, alleging a promise to pay in consideration of assets
having come to his hands. But in Morrow v. Brenizer, 2 Reticle,
it was decided, that assumpsit for money had and received would lie
against an executor personally for the plaintiff's share of a residuary
bequest of personal estate, and proceeds of real estate, in conformity
with Wilson v. Wilson, 3 Binn. 55ftn which it was held, that assump-
sit for money had and received lies against an executor in his indi-
vidual capacity, for a share of personal estate undisposed of by
will; still the plaintiff may sue the executor as such, and seek a
recovery, in the first instance, de bonis testatoris, proceeding after-
wards, on the return of nulla bona, to obtain an execution de bonis
propriis, on the ground of a devastavit. It is not pretended that he
is obliged to sue the defendant personally to recover a legacy. The
action here is in debt. It is, in some respects, a charge against the
executor in his individual capacity. It was commenced by capias,
and special bail entered, and the declaration is in the debet and de-
tinet. But in other material features, the suit is against the defen-
dant as executor. The action is so entitled. The declaration in its
commencement avers, that the defendant was attached as executor:
it recites the will, and appointment of three executors, and accounts
for the nonjoinder of the other two by alleging one to be dead, and
th'e other absent from the state. After setting forth that assets had
come to the defendant's hands as such executor, and the amount of
the plaintiff's proportion, it omits to state that the defendant thereby

214 SUPREME COURT [Harrisburg

[Foulk T. Brown.]

became liable to pay. If the declaration were ambiguous, the con-
struction ought to be against the party whose pleading it is more
especially where such construction goes to preserve the trial by jury;
on which account the court has always leaned towards a liberal con-
struction in favour of an appeal in doubtful cases. Jones v. Badger,
5 liiiin. 462. I am, therefore, of opinion that, in this case, the de-
fendant is within the privilege conferred by the proviso, and that
the court below did right in sustaining the appeal.

The counsel for the plaintiff prayed the court to charge the jury,
I hat the decree of the orphan's court was conclusive. The answer
of the court seems to me to define with accuracy the effect of such
a decree. The orphan's court has not hitherto possessed jurisdiction
to entertain a suit for a legacy, or to settle the accounts between the
executor and the legatees, and, therefore, its decree could have no
bearing on the question as to the amount due to the legatee. Its
only effect is to show the balance of assets in the executor's hands
after payment of debts and charges. The right to sue for a legacy
is vested by the act of the 20ih of March 1772, in the courts of com-
mon law, and to them is given power to appoint auditors to distri-
bute the assets among the legatees, where they are insufficient to
pay the whole of the debts and legacies. In this, therefore, there
is no error.

The third error assigned relates to the circumstances which went
to repel the presumption of payment arising from length of time.
The circumstances relied on by the defendant were various. They
consisted of the citation and other proceedings in the orphan's court ;
the omission of dates on the administration account, made out and
sworn to by the defendant ; the long period during which there was
no administration taken out on the estate of Isabella Foulk, the le-
gatee ; the receipt of part of the/.moneys claimed within less than
twenty years before this suit was brought.

It appears that the testator died in May 1802, and Isabella Foulk
in 1804. The widow died in May 1808. The plaintiff took out
letters of administration to his late wife, Isabella Foulk, on the 7th
of May 1827; and, on the 8th of May 1827, presented a petition to
the orphan's court for a citation to compel the defendant to settle his
accounts; which were accordingly passed, and confirmed on the 13th
of February 1828, finding a large balance against him as executor,
and decreeing it to be distributed according to the will. The legacy
was payable in May 1803, being one year after the testator's death.
Legacies not being within the statute of limitations, fall within
the rule of presumption. After a lapse of twenty years, bonds and
other specialties, merchant's accounts, legacies, mortgages, judg-
ments, and indeed all evidences of debt excepted out of the statute,
are presumed to be paid. 1 Fonb. Eq. 329; Gilb. Eq. Rep. 224;
Bickley v. Richards, 13 Serg. # Rawle 402. The court will not
encourage the laches and indolence of parties, but will presume,
after a great length of time, some composition or release to have

May 1834.] OF PENNSYLVANIA. 215

[Foulk v. Brown.]

been made. Fonblanque's Equity 329. This length of time does not
operate as a positive bar, but as furnishing evidence that the demand
has been satisfied. Eld ridge v. Knott, Cowp. 211. But it is evi-
dence from which, when not rebutted, the jury is bound to draw a
conclusion, though the court cannot. Crist v. Brindle's Executors,
2 Penns. Rep. 262. Within the twenty years, the onus of proving

Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 2) → online text (page 24 of 62)