31 Pa. 311 | Pa. | 1858
The opinion of the court was delivered by
It is impossible for us to consider this administrator blameworthy, for making all the defence he could make, legally, to the action which Ammon and wife brought against him.
Intrusted by law' with the administration of the estate of Rebecca Malaun, who died leaving an only brother, John Malaun, her heir at law, what was the proper course for the administrator to pursue, when he found Ammon and his wife, who were neither kith nor kin to the decedent, claiming her whole estate real and personal ?
Had they alleged a will either written or nuncupative, it would have been the right of the administrator to question it; but when they alleged only a parol contract, and that to be made out from evidence of loose, casual, and disconnected declarations of the decedent, it was very indispensable that he should resist it. Only by doing so could any record ever be made of the right by which this estate was transferred from one family to another.
The case involved a most important question upon the proper measure of damages for the non-performance of such a contract as the plaintiffs alleged. It was litigated before arbitrators, in the Common Pleas, and in the Supreme Court, and everywhere resulted unfavourably to the administrator. In the latter court, the bench was divided on the question, and the opinion of the majority, delivered by Ch. J. Lewis, has never been reported. The dissenting opinion of the two minority judges was published in the Pittsburgh Legal Journal of September 9, 1854. .
Whether the rule of law recognised in this- case will remain, or be set aside, is a question for the future, about which I will indulge in no speculations.
But, looking back on the history and character of that litigation, we think the auditor was quite right in disregarding the notice Ammon and wife gave the administrator, not to appeal from the award of the arbitrators, and in holding that the administrator was entitled to defend the suit at the costs of the estate.
The professional charges seem to us too large, comparing the aggregate of the fees of the four counsel employed, and paid, with the amount involved in the suit; but, as the auditor did not think proper to reduce them, and furnished no data whereby we could
Decree affirmed.
