85 Pa. 303 | Pa. | 1877
delivered the opinion of the court, January 7th 1878.
Articles of agreement between Alexander Guthrie, senior, and
On the trial, a paper, purporting to be the last will of Alexander Guthrie, senior, was offered and admitted in evidence. It was dated on the 5th of January 1846. The subscribing witnesses, on the 25th of March 1852, testified to its execution, and their affidavit was endorsed upon it by the register. The same day the persons named in it as executors endorsed a renunciation of their right to letters testamentary. The paper was then taken from the office, and was first produced afterwards in court by the plaintiff on the 2d of February 1876. Continuing the cause, which was then on trial, a verbal order to the register to file and record the alleged will was made by the court. The view which is entertained of the rights of these parties will make a final disposition of this litigation, and any extended inquiry into the question raised by the exception to the admission of this paper would be superfluous, but it may be said that there is grave doubt whether any act was done either by the register of 1852 or by the register of 1876, that amounted to a probate of this will. If it had been expressly declared to be proved — if, without that, it had been recorded — if letters testamentary or letters of administration cum testamento annexo had been issued — or, perhaps, if it had been simply filed, an adjudication by the officer would be presumed. Here, nothing was done in 1852 except to administer and endorse the oath of the subscribing witnesses. The paper was taken from the office, while the 17th section of the Act of the 15th of March 1882, expressly declares that all wills, after probate, shall remain in the register’s
In the instrument executed by him, Mr. Guthrie bequeathed to his daughter Rebecca, the plaintiff below, $2300, the horned cattle in his possession, and his household and kitchen furniture. Legacies of $800 each Avere given to two of his daughters, and one of $850 to his son, William Guthrie. $800 were bequeathed to his executors, $400 of which were directed to be divided amongst certain specified religious institutions. Any balance that should' remain after payment of the legacies, was given to his daughter Rebecca. Asserting a personal right to recover from the defendant under the terms of the agreement of the 26th of January 1844, and the provisions of the alleged will of her father, the plaintiff brought this suit for her legacy of $2300 on the 15th o.f July 1872. In the charge of the court the folloAving instructions were given to the jury : “ The consideration mentioned in the article is $6250, to be paid by J. W. Guthrie; $200 of this was paid when the article Avas signed, leaAÚng $6050. This sum, less the debts and expenses of administration, would constitute the fund out of which the legacies were to be paid pro rata. Whether the money referred to in these receipts and orders Avas paid, and whether it was paid outside of the maintenance and support of Alexander Guthrie, and what part thereof, are questions to be determined by the jury.” The verdict was' for the plaintiff for $3759.82.
It is to be observed that neither the name of the plaintiff nor the name of any other beneficiary was mentioned in the original and recited agreement of 1840, or in the revised agreement of 1844. By the former the balance of the consideration was provided to be paid as Alexander Guthrie, senior, should thereafter direct. By the latter, it was indicated rather than expressed, that it should be paid to legatees in his last will and testament. The instrument, given in evidence as a will, was executed two years after the second agreement was entered into, and the interests of the beneficiaries were then for the first time created and defined. Without a will the plaintiff could not move one step, and this paper is the very foundation of her title to the fund in controversy. Putting aside the general question whether a legatee can maintain an action against the debtor of a testator, on an express contract between them that the debtor should pay a particular legacy, it is necessary to ascertain what, under the will she sets up, she was entitled to receive, and upon and through whom she was given the right to make a claim. The bequests to the testator’s children
At the time of Mr. Guthrie’s death the situation of the fund for the payment of legacies was such as to require the adjustment of questions with which a jury in the trial of a common-law action are unfit to deal. It was said by Black, C. J., in Holliday v. Ward, 7 Harris 491, that “juries are less competent to state an account requiring long calculations than for any other duty that could be assigned them.” After the receipt by Mr. Guthrie of §200 at the date of the revised agreement, 86050 of the consideration remained unpaid. The pecuniary legacies bequeathed amounted to §5550. But the receipts admitted in evidence proved the payment of §2515.86 by the defendant to his father in his lifetime. Allowance was claimed for other sums, but they were rejected, and are of no present importance. Of the fund to meet §5550 of legacies, there remained in the defendant’s hands only §3714.14. In this sum all the legatees were interested, and, in the disposition of it, all had the right to be heard. An attempt was made by the jury to apportion the plaintiff’s share to her, and possibly approximate accuracy was reached. Her proportion of the §8714.14 was something like §1450, and the jury seem to have fixed something less than §1600 as the principal sum on which interest was cast to produce the verdict. Still, the attempt to marshal and distribute the assets of a dead man’s estate through common law forms is always awkward, cumbrous and unsafe. And the employment of those forms in the settlement of an estate like this was equally novel and inappropriate. Each of the other legatees could have a separate action if the action of one could be maintained. The same questions would arise in each trial, and the jury in each case would erect an equit
Under the particular facts presented here, no review is required of the cases in which the right of a third person to sue in his own name on a promise made for his benefit by one to the other of two contracting parties has been involved. While they are all not readily reconcilable, the distinction stated by Mr. Justice Sergeant in Blymire v. Boistle, 6 Watts 182, has generally been kept in view. The rule laid down in that case was that if one pay money to another for the use of a third person, or having money belonging to another, agree with that other to pay it to a third, action lies by the person beneficially interested. But where the contract is for the benefit of the contracting party, and the third person is a stranger to the contract and consideration, the action must be by the promisee. In the one instance the promisor becomes the custodian and trustee of a fund actually belonging to the beneficiary. In the other he undertakes to pay some sum or do some act in consideration of a benefit conferred on himself. The first branch of the rule was stated by Mr. Justice Mercur, in Torrens v. Campbell, 24 P. F. Smith 470, to be, that where the promisor receives money, or personal property to be converted into money, in trust for a third party, the action may be sustained in the name of the latter. And the reason given for the distinction may be gathered from the opinion in Blymire v. Boistle. Where the fund actually belongs to the beneficiary, he ought to have the right to release the demand or recover it by action. But where the contract leaves the promisor subject to a suit by the promisee, if he were also subject to a suit by the third party, he would be liable to two actions at the same time for the same debt. Here, some of the covenants of the defendant in the article of agreement could have been enforced by an action in the name of Alexander Guthrie in his lifetime, and a suit for the breach of any or all of them could have been maintained by his personal representatives. It would be a harsh rule of law that would throw on the defendant the additional burthen of a suit by each of the legatees.
There is nothing in the revised statutes settling the powers of the different courts to warrant this proceeding. Under guards provided for the protection of the personal representatives and the estates of testators, the Common Pleas and Orphans’ Court have concurrent jurisdiction to enforce the payment of legacies not charged on land. Under the 47th section of the Act of the 24th of February 1834, such payment may be directed by the Orphans’ Court, on the application of a legatee, or any other person interested, the applicant executing the requisite refunding bond.
Various other questions were raised on the trial below and in the argument hero, but no practical good would come from their discussion. Judgment reversed.