3 Rawle 312 | Pa. | 1832
The opinion of the court was delivered by
The execution of the disputed specialty is established by plenary proof. Did it stand on the testimony of but the subscribing witnesses, it would still be sufficiently made out. Both recognise their signatures, and both remember the transaction; but neither remembers the fact of a formal delivery. Nothing is clearer, however, than that a formal delivery is not indispensible. The leaving of a deed on the table for the grantee to take it away, has been held sufficient. Here the instrument is proved by one of the subscribing witnesses, to have been laid on the counter; which, in connexion with the fact that it is produced by the party who claims-under it, is enough in all reason to warrant a presumption of its delivery ; and this on the ground of all presumptions-^ — the usual course of such transactions. In a vast majority of cases, the deed is merely left for the grantee to take it away, and where it is produced by him, the law, in the absence of proof to the contrary, infers a delivery, for the reason, that in the absence of countervailing proof, it presumes against fraud and in favour of innocence. So strong is this presumption, that in the case of a second marriage within a' year after the husband had left.the country, it has been allowed to prevail over the usual presumption of continuance in life. Starkie’s Ev. Pt. IV. 1248.
The facts are, that being a native of Philadelphia, and having been absent from the United States for seventeen years, he returned on the business of a commercial house at Buenos Ayres and Monte Video, of which he was a partner, but with no purpose of resuming his foreign residence. He resided with his father’s family here for two years, during which his connexion with the house in South America, was dissolved by efflux of time, and a partnership formed between him and other persons, for the establishment of a house at Alvarado in Mexico. In consequence of the apprehended insalubrity of the climate, he manifested in the course of the negociation, that led to this arrangement, an insuperable aversion to being bound for more than two years, and the articles of co-partnership, in which, it is worthy of remark, he was designated as being of Philadelphia, were
The ground on which the assets are to be collected by the authority, and administered according to the law of the country, in which they happen to be at the decedent’s death, is the claim which its citizens have to the protection and assistance of the government in the prosecution of their rights. This protective principle has never been relaxed by the American courts; and was particularly maintained by this court in Mothland v. Wireman, at the last term at Chambersburg. But when the purposes of protection and assistance have been answered, or there are in fact no resident creditors to be protected, it seems from the case of Dawes v. Head, (3 Pickering, 128.) that the proper course is to transmit the assets to the administrator at the place of the domicil for further administration among the other creditors and those entitled to the succession. Perhaps a more regular course than the one pursued in the case at bar, would have been to obtain administration of the assets in Mexico, for the purpose of transmitting them to the administrator here. If, however, there were in fact no Mexican creditors, as is probable from the very nature of the case, the joint debts being payable before the intestate’s interest could be separated from the partnership, the necessity of an ancillary administration for purposes of mere transmission, would not be so imperative. The question, however, is not whether the administrator shall be compelled to account for these assets, but having submitted them to the local jurisdiction, how he shall administer them. He certainly would not be bound to wait an indefinite time for the Mexican government or a Mexican creditor
Decree affirmed.