204 Pa. 648 | Pa. | 1903
Opinion by
This is an action by Laura W. Fleming, executrix of the
At the time of his death John Fleming was engaged under the name of Fleming Brothers in the manufacture and sale of McLane’s and other proprietary medicines in the city of Pitts-burg. He died November 2, 1870, leaving a last will dated December 21, 1866, which was probated November 9, 1870. He left to survive him a widow and collateral heirs and appointed as his executors his brother, Cochran Fleming, Frank E. Porter and Alexander Byers. The testator made a number of pecuniary bequests amounting to about $100,000, in most of which there were two or three preceding successive life estates of the income thereof, during which the principal was directed to be invested by the executors. In addition to these bequests and after he bequeathed to his wife certain articles' of a personal character and devised to her a life interest in some real estate, he provided in his will, inter alia, as follows: “ To my brother Cochran, I give and bequeath the good will and proprietorship of McLane’s and other medicines which I own and control, on the following conditions, to wit: That immediately on my death he take charge and carry on my said business ; and if it is found on examination of my affairs, that my available assets (in which are not to be included the warehouse and articles of a personal character hereinbefore bequeathed to my wife) are not sufficient to provide means wherewith to pay the foregoing pecuniary legacies in the order in which they are enumerated in this my last will, then that he carry on said business for the benefit of my estate until enough of moneys are realized by my said business to make good any deficiency in the moneys applicable to the payment of said legacies. On the payment of said legacies, my other executors will execute and deliver unto my said brother Cochran all bills of sale or conveyance of my said business and property connected therewith, which may be desired by the said Cochran.
Immediately after his brother’s death, Cochran Fleming took possession of the business as legatee under the will and as his own property and carried it on for himself and for his own use and benefit in the name of Fleming Brothers. The accounts were kept in a new set of books which were opened after John Fleming’s death. In 1875 or 1876 he formed a copartnership with his two sons, J. Kidd Fleming and Cochran Fleming, Jr., public notice of which was given in two newspapers of the city of Pittsburg, and under the firm name of Fleming Brothers the business was conducted for the benefit of the partnership, the profits being divided among the three partners, until 1890, when the firm failed. The executors of John Fleming never had any connection with the patent medicine business of their testator. The notes in‘suit were given by the firm, the name being signed by J. Kidd Fleming, and were given in exchange for notes by the L. H. Harris Drug Company to the order of Fleming Brothers, the proceeds of which were received by the latter firm.
It is not averred in the pleadings, nor was it proved on the trial that the assets of John Fleming’s estate were not sufficient to pay the legacies. The evidence was that the estate was solvent; that the debts were paid and that the assets were amply sufficient to satisfy the claims of the legatees. In 1871, Cochran Fleming paid the pecuniary legacies named in the will and took receipts in the names of the executors from those who were first entitled to receive the income thereof for life. None of the legatees are complaining nor contesting his right to take possession of the property and use it for his own benefit after the death of John Fleming.
The learned trial judge very properly granted a nonsuit and withdrew the case from the jury. The claim of the plaintiff, as set forth in her statement, is that Cochran Fleming, after the death of his brother, took charge of and carried on the
The bequest of the good will and proprietorship of the patent medicines to Cochran Fleming was on the condition that he take charge of the business and if its available assets were not sufficient to pay the legacies, then he was to carry on the business for the benefit of the testator’s estate until sufficient money was realized to make up any deficiency in the moneys applicable to the payment of the legacies. It will be observed that the executors were not given control or possession of the business and were not authorized to interfere with it in anyway. It was bequeathed specifically to Cochran Fleming and he was to take charge of it immediately on the death of the testator. The only condition imposed was that if sufficient available assets were not found to pay the legacies, the legatee should carry on the business until the deficiency was made up. The title
There is another reason in line with the one just stated which we think must prevail against the right of the plaintiff to recover. It conclusivély appears that the partnership formed by Cochran Fleming and his two sons in 1875 or 1876 took possession of the business and, while carrying it on, gave the notes in suit. It cannot be pretended that at that time this firm was Cochran Fleming doing business as Fleming Brothers, who conducted the business prior to the partnership, nor that the partnership was not running the business solely in its own interest and for its own benefit at the dates the notes were delivered to the payees. The notes in suit were signed by J. Kidd Fleming with the firm name of this partnership and were exchanged for notes given to it. Neither the estate of John Fleming, nor his executors, nor Cochran Flendng as Fleming Brothers, was in anyway connected with the transaction or involved in the obligation assumed in making the notes.
There was no necessity for the execution and delivery of bills of sale or conveyance to vest the business in -Cochran Fleming. The matter was entirely optional with him. It will be seen by reference to the will that his coexecutors were to execute and deliver to him “all bills of sale or conveyance of my said business .... which may be desired by the said Cochran.” He desired no other assurance of title than the possession of the property which he took and retained after his brother’s death.
The plaintiff’s action must fail for want of evidence to support it. The notes in suit were not given for any indebtedness of testator’s estate nor by any person in charge of, or carrying on, the business of the estate, or authorized to bind it by note
For the reasons given we are of opinion that the plaintiff has failed to establish any liability on the part of the executors of John Fleming, deceased, for the payment of the notes in suit and that, therefore, the nonsuit was properly granted.
The assignments of error are overruled and the judgment is affirmed.