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they are to be considered as conceding and admitting the truth of all
facts which, upon the evidence given by the plaintiffs, might be found
by the jury in favour of the plaintiffs. Now I think it cannot be de-
nied but that it belongs to the court, as a question of law, to decide
whether evidence offered to be given by a party may or can not con-
duce to the proof of a particular fact; otherwise courts usurp a power
every day that does not belong to them, in rejecting evidence offered,
because in their opinion it does not tend to prove or disprove the facts
put in issue between the parties, and therefore irrelevant and not
admissible. It is obvious that the trial of a cause might become in-
terminable if the court could not exercise such a power. But to



May 1833.] OF PENNSYLVANIA. 435

[Malson v. Fry.]

decide upon the relevancy of the evidence, if offered by the plaintiff
in support of his claim, the court must necessarily, as a question of
law, decide whether the facts which the evidence has a tendency to
prove, are or will be sufficient to sustain his claim. If, however, the
evidence should be all given without objection, cannot .the court
decide as well then as if it had been objected to before it was given,
what the facts are which it tends to prove, and whether or not they
are in law sufficient to support the plaintiff's demand? Most un-
questionably it may : and should its attention be called to the point
by the counsel of the defendant, with a request to charge the jury as
was done in this case, I consider it the duty of the court, when it is
decidedly of opinion that the evidence given by the plaintiff, sup-
posing it to be all true, does not tend to prove such facts as will in
law entitle him to recover, to tell the jury so; or, in other words,
" taking every fact and circumstance given in evidence to be true,
still the plaintiff had entirely failed to make out his case." That the
court might do so, was ruled expressly by this court in the case of
Weidler v. The Farmer's Bank of Lancaster, 11 Serg. fy Howie 141.
And if a jury were, after such direction from the court, to find a ver-
dict for the plaintiff, it would be the duty of the court to set it aside
and grant a new trial.

What then are the facts which the evidence given on the part of
the plaintiffs in this case had a tendency to prove? In its utmost
extent, it can not be claimed that it proved more than that after the
land in dispute, consisting of three islands in the Susquehannah river
within that part of Lancaster county in this state which was claimed
by Lord Baltimore as a part of Maryland, had been granted by the
then proprietor of Maryland, by patent dated the 22d of October 1736,
to Thomas Cressop, who by his deed dated the 18th of March 1741
conveyed the same to Jacob Myers of Lancaster county, Thomas
Malson, the father of the plaintiffs who as his heirs claim the land,
was in the possession of it from fifteen to twenty years before the
autumn of 1784, when a flood called the " pumpkin flood" came and
compelled him to quit the possession, leaving a crop of corn growing
upon it; and when he returned after the flood had abated to resume
the possession, he found Jacob Dritt in it, who repelled him by force,
drove him off, and would not let him enter. That Jacob Dritt from
that time kept Thomas Malson out of the possession, and continued
to possess, occupy and farm the islands by himself and his tenants,
till his death in the year 1815 or 1816, when his heirs succeeded him
in the possession, and continued it by themselves and their tenants
till the bringing of this action on the 25th of October 1819. That
in the spring after the flood Thomas Malson tried to get into possess-
ion, but Jacob Dritt prevented him, and that, as one witness said,
" there had been disputes about the islands from that day to this ;"
and another that " the Malsons have been at variance with Dritt
and his executors about his title to the islands." That during this
period Jacob Dritt built a two story dwelling house upon one of the



436 SUPREME COURT [Lancaster,

[Maleon v. Fry.]

islands, and a dwelling house and barn upon a second. That TTiomas
Malson died about 1813; and between 1812 and 1814 when Jacob
Dritt was about putting a tenant of his of the name of Skigly into
possession, he found some things of William Malson's, the eldest son
of Thomas Malson, in the house, which he threw out ; and some
days after William Malson took them away. That about 1824, after
the bringing of this action, Ephraim Malson, another son of Thomas
Malson, was in a shanty on the island upon which Jacob Dritt had
not built a house, having with him pots, kettles, pans, and a kind of
bed. While there he was grubbing and clearing upon it, when he
was forced off from it.

From this it appears that while the title and right to the land in
dispute were vested in Jacob Myers, Thomas Malson, by intrusion,
took the possession of it, in which he continued without shadow of
title for the space of from fifteen to twenty years, when he was ex-
pelled by the flood ; and Jacob Dritt took the possession before his
return, and kept him out by force ever after. Although the possess-
ion which Thomas Malson had had of the land before the flood might
have been sufficient to have enabled him to have maintained an
action of ejectment against Jacob Dritt or his tenants, if he entered
without title or the authority of one who had, or to have prosecuted
and supported an indictment for forcible detainer; yet about twenty-
eight or twenty-nine years after having thus lost the possession he
died, without ever having attempted to regain it in either way.
From the spring of 1785, as long as he lived, there is not a particle
of testimony tending to show that he ever made an entry and claim
upon the land ; nor that any person did so by his authority for him.

That the possession of Jacob Dritt was from its commencement,
and continued to be throughout, adverse and hostile to Thomas Mal-
son in his claim to the land, can not admit of a shadow of doubt.
That it was continuous and notorious is equally clear : in short, that
it was every thing under our act of limitations to make it a complete
and positive bar to the plaintiff's action is so palpable from the evi-
dence given by the plaintiffs themselves, that the district court could
scarcely be said to have administered the law, and to have discharged
its duty, if it had not told the jury so. This, then, being the condi-
tion of the plaintiffs, it follows necessarily that even if there were
errors committed in other matters on the trial of the cause, they can
not prejudice the plaintiffs, and therefore would be no good ground
for reversing the judgment upon this writ of error.

Judgment affirmed.



May 1833.] OF PENNSYLVANIA. 437



Commonwealth against Evans.

The non-payment of a debt by an administrator is not such a breach of the condi-
tion of his administration bond as will enable the creditor to sue it and recover hu
debt, without a previous suit fixing the administrator with a devastavit.

ERROR to the district court of York county.

This was an action of debt upon an administration bond given by
the defendant, John Evans, esquire, upon taking out letters of ad-
ministration on the estate of F. M. Wadsworth, esquire, deceased.
The suit was brought on the 3d of November 1831 ; and the breach
of the condition of the bond alleged by the plaintiff was, the non-
payment of a debt owing by the deceased, F. M. Wadsworth, es-
quire, to Thomas Relly, esquire.

The plaintiff, to support the issue on his part, gave in evidence
the record of a suit, No. 29, May term 1830, Relly v. Evans, Mmin-
istrator of Wadsworth ; report of arbitration thereon for plaintiff for
100 dollars; appeal by plaintiff; 21 October 1831, case stated, and
judgment for defendant ; writ of error by plaintiff, and, 6 June 1832,
judgment reversed, and judgment for plaintiff for 150 dollars. Also
the administration account of Evans, administrator of Wadsworth,
settled 3 March 1831, showing a balance of 3675 dollars and 41 cents
in the hands of accountant.

The defendant then proved that he was advised by counsel to
make defence in the case of Relly v. Evans, Jldministrator of Wads-
worth ; that it was litigated before arbitrators in the district and
supreme court while the present suit was pending. To this evi-
dence the plaintiffdemurred, and the defendant joined in thedemurrer,
which gave rise to the question, whether the plaintiff was en titled to
recover upon the evidence given in this suit. The district court was
of opinion, that the plaintiff was not entitled to recover ; and gave
judgment for the defendant, which was the subject of the assignment
of error in this suit.

Durkee, for plaintiff in error, cited, Gord. Dec. 293 ; 1 Salk. 316.

Hambly and Gardner, contra, cited, 4 Johns. Cha. Rep. 628 ; 5
Binn. 140; 13 Johns. Rep. 440; 5 Dane 261 ; 16 Mass. 524; 1
Munf. 31 ; Halstead 195 ; 9 Serg. $ Rawle 67 ; 13 Serg. fy Rawle
238 ; 1 Johns. Rep. 311 ; 8 Mass. 488.

The opinion of the Court was delivered by

GIBSON, C. J. The condition alleged to have been broken, is the



438 SUPREME COURT [Lancaster,

[Commonwealth v. Evans.]

second in the series as prescribed by the legislature, to wit, that the
administrator will well and truly administer according to law the
goods, chattels and credits of the deceased, which shall come to his
hands ; and we are called upon to give these words an original judi-
cial construction. It was indeed said in Yard v. Lea's Administrators,
3 Yeates 345, that the bond is a security for creditors as well as the
next of kin ; but without intimating the nature of this particular con-
dition, or of its breach. The construction seems to have been differ-
ent in England, where it was at one time held, that the clause in
question extends but to the bringing in of an account, and not to the
payment of debts ; consequently, that a creditor may not have the
bond assigned to him, and allege non-payment of his debt, or a de-
vastavit as a breach of it. Archbishop of Canterbury v. Wills, 1 Salk.
315. And in Wallis v. Ripon,Amb. 183, it was held by Lord Hard-
wicke, that none but the next of kin can sue on an administration
bond given pursuant to the 22d and 23d Car. 2, from which our stat-
ute is taken ; though it was admitted to be otherwise in respect to
the bond given by an administrator pendente lite. These cases, how-
ever, seem to have been overruled in the Archbishop of Canterbury v.
House, Cowp. 141, where it was determined, that an action may be
maintained by a creditor as well as the next of kin. How the breach
of the condition was assigned, does not distinctly appear ; but the
nature of it may be conjectured from the remark of Lord Mansfield,
that the administrator had attempted to defeat the creditors by " all
sorts of chicane, delay and false pleading" matters that constitute
a clear devastavit. In Pennsylvania, the precise meaning of the
clause in question has not been judicially determined, and it is now
to be fixed by a recurrence to general rules of construction.

It is a cardinal principle that contracts are to be expounded as the
parties themselves expounded them ; and the meaning of the parlies
is presumed to be the meaning assigned to the same sort of contracts
by the rest of the world. Where a particular interpretation has been
universal, it ought to govern, though it be irreconcilable to the
legal effect of the letter ; as in the case of a policy of insurance or a
mortgage. What then is the effect universally ascribed to this con-
dition by the profession and the people 1 No surety in an administra-
tion bond ever agreed to contract an absolute instead of a contingent
liability, or supposed that he subjected himself to immediate recourse
as a principal debtor. That this assertion is borne out by the popu-
lar and professional understanding, will not be disputed by those who
are familiar with the business of the register's office ; indeed its
truth is proved by the very fact, that in no instance but the present
has there been an attempt to recover on proof of any thing less than
a devastavit. And this understanding was the understanding of the
legislature, who evidently designed to do no more than enlarge the field
of personal recourse, by adding the responsibility of a surety to the
existing responsibility of the administrator ; without changing the
quality or condition of it at the common law, which turns the contin-



May 1833.] OF PENNSYLVANIA. 439

[Commonwealth v. Evans.]

gent liability of an administrator, as well as of an executor, into an
absolute one, only as a penalty for a devastavit. Why then should a
surety be held to harder terms than the common law had imposed
on his principal, whose body or estate could not be subjected to satis-
faction before it were judicially ascertained that the assets were no
longer to be reached by an execution 1 That such was not the ob-
ject of the legislature, is manifest from the provisions in respect to
the additional bond exacted in certain cases of delinquency by the
act of 1797 ; an action on which is required to be preceded by a re-
turn of nulla bona on an execution against the executor or adminis-
trator in his representative character. Not only therefore does the
object and reason of the statute define the meaning of the particular
clause, but the limit assigned to the contract of the surety in a par-
allel case equally indicates the legislative intent ; and with the
principle extracted from these sources, the decisions on the subject
in our sister states, are entirely consistent. In Roboins v. Haywood,
16 Mass. 127, it was held, that a creditor whose debt has been but
barely ascertained by a judgment, may be permitted to sue the ad-
ministration bond ; but the contest had respect rather to the disclo-
sure of such an interest in the assets as entitled the plaintiff to inter-
meddle, than to what constituted a breach of the bond : besides, the
conditions prescribed by the statute of Massachusetts seem to be
different from ours. In the People v. Dunlap, 13 Johns. 440, where
the words of the condition were the same as they are here, the statute
of New York also having been taken from (he 22d and 23d Car. 2,
there had been a previous execution and return of nulla bona. And
in Gordon's Administrators v. The Justices of Frederick, I Munf. 1, as
well as in several other cases in Virginia, it was determined that no
action could be maintained on an administration bond for a breach of
this condition, without a previous suit fixing the administrator with
a devastavit. What then is the evidence of a breach here 1 The
plaintiff showed the record of an action by a creditor against the
administrator, which, at the inception of the present suit, had been
decided by the district court in favour of the administrator, and was
depending in this court on a writ of error ; and he showed no more.
Could it, under these circumstances, be a devastavit, or even an in-
delicacy to withhold payment till the right were determined by the
court of the last resort *? Assuredly the situation of the administra-
tor called for circumspection, and the law is not so unreasonable
as to require him to act at his peril, and with a promptness that would
be precipitation in any other transaction. The evidence, therefore,
failed to show a breach of the condition, and the demurrer was
properly sustained.
Judgment affirmed.



440 SUPREME COURT [Lancaster,



Marshall against Hoff.

H., executor of B., sold the real estate of his testator and took bonds for the pur-
chase money, which remained in his hands until he died intestate and insolvent.
Held, that the estate of the testator which came to the hands of the administrator of
the executor, should be appropriated by him for the benefit of the estate of the tes-
tator, and not to the creditors of the insolvent executor.

APPEAL from the decree of the orphan's court of Berks county,
making distribution of the money in the hands of Jacob Hoff and
Catherine Hoff, administrators of John Hoff deceased.

Jacob Bright died seised of real estate, having made his will, by
which he authorised his executor, John Hoff, to sell his said estate
for certain purposes therein directed. The estate was sold, and
John Hoff the executor took bonds and mortgage for the payment of
part of the purchase money, and subsequently settled an account,
charging himself with the said purchase money, by which there was
found to be a balance in his hands of 13,195 dollars. John Hoff
placed these bonds and mortgage in the hands of Marks J. Biddle,
Esq. for collection, and died. Letters of administration on his estate
issued to Jacob and Catherine Hoff, who received from Marks J. Bid-
die, Esq., their attorney, 1750 dollars of the money which he had
collected on the said bonds and mortgage. These administrators
settled an account of their administration of the estate of John Hoff
deceased, in which they charged themselves witli the money thus
received. This account was referred by the orphan's court to audi-
tors, to settle the same and make distribution among the creditors,
who made a report giving a preference to the specialty creditors of
John Hoff deceased, over the administrator de bonis non with the
will annexed of Jacob Bright deceased, who claimed for the benefit
of the estate he represented all the assets which belonged to it.
This report was confirmed by the orphan's court, upon exceptions
filed to it, which were in substance, that the court erred in not de-
creeing to the estate of Jacob Bright deceased the money which was
collected by Marks J. Biddle, Esq. and paid over to the administra-
tors of John Hoff deceased.

Smith, for appellant, cited, 2 Serg. fy Rawle 521; 15 Serg, fy
Rawle 145 ; 2 Rawle 121 ; Jlshm. Rep. 319.

Biddle, contra, cited, 6 Serg. fy Rawle 462 ; 7 Serg. fy Rawle 483 ;
11 Vim. Jib. 430, pi 16 ; 11 Serg. fy Rawle 377, 385.

The opinion of the Court was delivered by

GIBSON, C. J. The administrators of John Hoff can administer



May 1833.] OF PENNSYLVANIA. 441

[Marshall v. Hoff.]

the funds in their hands derived from the estate of Jacob Bright in
no way more advantageously to Hoff's creditors than he himself
could do were he alive; and the question is, what would be their
recourse against him in a court of equity, to whose jurisdiction
the subject belongs? It is plain that he could not make the assets
his own, to defeat the purposes of the will, by charging the value in
his account : a chancellor would, notwithstanding, lay hold on the
funds in the hands of the insolvent executor. Even take it that he
had already paid them away to his creditors with a knowledge on
their part of his insolvency and consequent misapplication of the fund,
nothing is clearer than that as parties to the devastavit, a court of
equity would compel them to refund. This principle is amply estab-
lished by Burting v. Stonard and Ewer v. Corbel, 2 P. Wms 148,
149; Nugent v. Gifford, 1 Atk. 143; Meade v. Lord Orrery, 1 Atk.
235; Jacomb v. Harwood, 2 Ves. 265; Crane v. Drake, 2 Fern. 616;
and Tanner v. Me, 2 Fern. 469. And the consequence is the same
when the assets have been turned into money, provided it has been
received with a knowledge of all the circumstances ; for when re-
ceived mala fide, it may be followed as readily as a chattel. Now
the case here is certainly no stronger for the creditors, than that of
payment actually made with a knowledge of its being a misapplica-
tion of the fund. The creditors of John Hoff, the executor, claim to
be satisfied out of a fund which, though recoverable at law only by
his administrators, notoriously belongs in equity to the estate of his
testator ; and as a chancellor would take particular pains to disap-
point them, this court, sitting as a court of equity, can do no less.
It is therefore ordered that the account be re-stated, so as to exclude
from it all moneys received by the accountants from any person in-
debted to their intestate, as the executor of Jacob Bright ; and that
the accountants be decreed to hold those moneys in trust for the
persons entitled to the same under the will of the said Jacob Bright ;
and that the record be remitted to the orphan's court to have this
decree carried into execution.
Decree accordingly.



3F



442 SUPREME COURT [Lancaster,



Rohrer against Stehman.

In Pennsylvania, it is not necessary to the validity of a devise that the will should
be sealed ; nor that it should be proved by subscribing witnesses.

A memorandum, taken in writing, from the mouth of a testator, for the purpose of
drawing from it a formal will, and read over to him and approved, may be proved as
a will.

ISSUE of devisavit vel non, on an instrument of writing, purporting
to be the last will and testament of Tobias Stehman deceased. John
Hubley, a scrivener, was sent for to write the will of Tobias Stehman.
He took down in writing what the testator dictated to be his will ;
and when it was all done he read it over to him, and it was approved.
From this memorandum a formal will was drawn by John Hubley,
and executed by Tobias Stehman in the presence of witnesses, -who
subscribed it as such ; but when it was offered for probate, a caveat
was entered, an issue joined, Which was tried, and a verdict and
judgment rendered against the will, on the ground that it had not
been read to the testator previously to its execution. The memo-
randum taken by John Hubley was then offered for probate, and its
validity was the subject of this issue.

The following evidence was then given.

This cause being at issue and the jury sworn, prout the record, the
plaintiff to maintain the issue on his part, produced Frederick Fehl
as a witness, who, being duly sworn according to law, testified as
follows.

" I have been present in the year 1814, when the notes were draw-
ing by Hubley Nov. 1814, 14th of November 1814, drawn by John
Hubley. I had orders to come to Tobias Stehman, the 13th, to come
the next morning, which would be the 14th. I went very early in
the morning. I knocked at the chamber door, and he, Tobias Stehman
asked me to come in. I went in ; said he, You come very early. I said
I had word to come very early. I asked him what was the reason for it.
He told me he had a mind to make another will to-day. I asked
him then what is the reason : he told me he does not like that will,
he wanted to make a new one. I said, Mr Stehman, I would leave
it by the old will ; well, he again asked me if I would not draw the
minutes in German. I said first and foremost, I cannot write a will ;
then he asked me to write the minutes in German ; says he, Hubley
will be here about two o'clock, and he had to pick the notes and put
them in English. Well, about that time the house was full of peo-
ple, his own, and comers and goers, about breakfast time. Well,
then he called for his wife to come into the room where he lay. She
came in ; then he said to her, to go into the room and tell the people



May 1833.] OP PENNSYLVANIA. 443

[Rohrer v. Stehman.]

to go out of the house and lock the door. Well, then she done so ;
she returned into the chamber room, and said they were all out, and
locked the door. Well, then said he, Mammy, now take a sheet of
paper and ink, and a feather, and set alongside a little table, and set
it aside the bed. Well, says he, Frederick, take a chair and set down,
and mammy, said he, you take a chair and set alongside the bed.
Well, then I asked him what I should set down first. Well, says he,
I should set down one hundred acres in the Long lane, which I bought
of Darnel Brenneman. When I had set down that, then he said, Have
you set down that 1 I said I had. Well, then says he, I think there
are thirty-five acres of woodland about a mile off the one hundred
acres. When I had set down, I asked him what wood ; he said, I
bought fifty-two acres of Samuel Simpson of Martick township ; I
should set down the fifth part of twenty-five acres. When I had
set down that, he said, That is all the land my grandson shall have.
Next, he was saying he had two hundred acres lying on the west
side of the road leading from Millerstown to his mill, and from thence
to Safe Harbour road. He meant to make four lots of the two hun-
dred acres. Well, he said, there is a sawmill on one of the lots ;
that same lot he thought Betsey, his daughter, should have ; that was
the east lot ; and the next lot, north-west, towards the mill, should
be Kitty's. And for the other two lots adjoining lands of Jacob Fehl,
there were two girls he had, Veronica and Peggy, they should cast



Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 1) → online text (page 53 of 68)