Appeal, No. 5 | Pa. Super. Ct. | Apr 18, 1923
Opinion by
Anna Brown, Mary Judge, John Judge, Thomas Judge and Kate Judge all lived together. John died and Mary was his executrix. Kate died and Mary became her ad-ministratrix. Then Mary died and left all her estate to Anna Brown. The plaintiff, Anna Brown and Thomas Judge continued to live together until the latter married. Anna then left the home intending to take the household goods with her, but Thomas refused to give them up, whereupon Anna Brown brought this suit of replevin. The defendant does not1 assert ownership but objects to the plaintiff getting possession of them in her own right and insists she is only entitled to the goods as executrix of Mary Judge, deceased. This is the only defense offered. The case was before this court: Brown v. Judge, 77 Pa. Super. 106" court="Pa. Super. Ct." date_filed="1921-07-14" href="https://app.midpage.ai/document/brown-v-judge-6280980?utm_source=webapp" opinion_id="6280980">77 Pa. Superior Ct. 106. We held that' the evidence would have warranted a finding by the jury that Mary Judge left no debts and that the appellee was the only person interested in the settlement of her estate. In such a case no distribution is needed and the appellee might assert her rights to the property by an action in her own name: McLean’s Executors v. Wade, 53 Pa. 150. The reason we reversed the case was that the evidence offered by the plaintiff consisted of oral testimony and had to be submitted to the jury. At the present trial the appellant offered testimony showing that' Mary Judge as administratrix of her sister Kate and executrix of her brother John had certain assets on hand at the time of her death and claimed that as long as these estates were not settled, Anna Brown had no right as the legatee of Mary to take this personal property as her own. The lower court very properly held that the defendant’s interest in the chattels in question was too remote
When the' writ of replevin was issued the defendant filed a counterbond. Nearly all the goods were then impounded in the custody of the sheriff, the plaintiff having alleged a sentimental value; Act of April 14,1905, P. L. 163. At the trial the plaintiff proved the value of a few articles which were, still in the possession of the defendant and this is said to have been error. The seventh section of the Act of April 19,1901, P. L. 88, directs that the jury shall find the value of the property. We do not see how testimony of the value is, therefore, incompetent. The impounding of some of the goods does not prevent the plaintiff from proving the value of those not impounded as long as they are part of the subject-matter of the controversy. There may be some complications arising if the plaintiff issue execution for the value of the goods. The Act of 1905 above referred to provides for the return of the goods when a sentimental value has been attached to them and they have been impounded. This, however, is a matter for the lower court in the first instance: Duncan v. Harris, 17 S. & R. 436. This is certain, that upon the verdict rendered the plaintiff can have return of the goods mentioned in the writ for which the defendant gave a claim property bond, together with damages for detention and costs.
We see no merit in the contention of the defendant that the property having been put in the sheriff’s custody no damages for detention can be recovered from the de
All tbe assignments of error are overruled and tbe judgment is affirmed.