Candor & Henderson's Appeal

27 Pa. 119 | Pa. | 1856

The opinion of the court was delivered by

Lewis, C. J.

The limitation of twenty days allowed for appeals in certain cases has no application to appeals from decrees of the Orphans’ Court adjusting an administration account. The appeal is in time, and the motion to quash- it is overruled.

The auditor reports that the testator “ gave” the bond in question. There is nothing in any part of the record to impair the force of this finding, or to create a belief that it is erroneous in point of fact. . The possession of the bond, by the executors, after they have paid it, and are entitled to the possession of it as a voucher, is no evidence to show that it never was given. At least this circumstance cannot have the effect of overthrowing the positive finding of the auditor.

The bond is made payable “ten years after- date,” irrespective of the question whether the obligor should be living or dead, at that time. There is therefore no ground for holding it to be a donatio mortis causa. • . '

It is under seal, and is found expressly to be a “ voluntary” bond. The seal imports a consideration, and creates a legal obligation. In a “voluntary” bond no consideration is contracted for or expected. The absence of one is therefore no ground for • equitable relief from a contract conceded to be good at law, without' it. To say that the “want of consideration” is a defence against a bond is to express, in language not remarkable for precision, nothing more than the familiar principle that where the obligor fails to receive the consideration contracted for, and on the faith of which he entered into the contract, he is not bound to pay his bond. This principle has no application whatever to the case before us, because no consideration was contracted for or expected. A voluntary bond, it is true, must be postponed until creditors are paid; but it is always good against the party himself, and against heirs, legatees, and others who stand in no higher, equity: 2 Williams on Executors, 871; 3 P. Wins. 223; 2 Mylne & K. 769. In this respect a simple contract differs from a specialty. In the one case the party is not bound without a consideration: 5 T. R. 8. In the other no consideration is necessary if none was contracted for: 17 John. Rep. 301.

The Orphans’ Court committed an error in refusing to allow the accountants credit for the money paid to take up the bond in question. It is ordered that the credit claimed by the accountants for the money paid in taking up the bond given to David Marr, in trust for Mary Adaline Sullivan, be reinstated. With this correction the decree is affirmed, the parties excepting to the account to pay the costs.