1 Pa. Super. 149 | Pa. Super. Ct. | 1896
Opinion by
Three specifications of error confront us in this case. Two of them are not referred to by the appellant in his argument and it is to be presumed, therefore, that they were abandoned. They related to the admission of evidence introduced by the plaintiff below and objected to by the defendant. The objections were sustained in both cases upon grounds which are clearly apparent, although in the first ease no particular ground of objection appears upon the record. The offer contained in the first specification of error was very properly rejected for the reason that the question was not cross-examination; and, when the witness was recalled by the plaintiff in rebuttal, practically the same question was asked, objected to on the ground that it’ was irrelevant and incompetent, and the objection very properly sustained. These rulings practically rule the case. They shut out the testimony in regard to a second alleged will on the ground of its irrelevancy; in other words, that the existence of such a will could not be collaterally determined irnthe issue then on trial. The third specification charges error in the court below in directing the jury to render
Benjamin Irwin, claiming to be the assignee of a mortgage given originally by James F. Hanthorn and Ellen Hanthorn to John S. Hope, brought into the court below by scire facias William L. Hanthorn, terre tenant, who was in possession of the property and who defended on the ground of the payment of the mortgage. He brought into the court below at the trial the mortgage itself, upon which there was the stamp of satisfaction. There is no denial of the fact that he paid the money to Thomas W. Pierce, trustee of Joshua Hoopes, who claimed it by assignment from the executors of A. Taylor Hoopes at the time of the payment, which said assignment was duly recorded March 25, 1898. The assignments of John S. Hope to William B. Hoopes and of Thomas W. Pierce, executor of William B. Hoopes, deceased, to A. Taylor Hoopes, were also of record. On the margin of the mortgage in the recorder’s office there appeared this entry: “I hereby acknowledge that the whole amount of principal and interest secured by this mortgage has been paid in full. Witness my hand the 2d day of April, 1894. Thomas W. Pierce, Trustee—and in lead pencil this memorandum, “Not attested, on account of litigation.” The plaintiff claimed by assignment of the mortgage from William S. Harris who claimed by an assignment from Caleb H. Bradley, executor of A. Taylor Hoopes, deceased, both of which assignments were recorded September 23, 1893, nearly six months after the record of the assignment from Thomas W. Pierce and E. Malin Hoopes, executors of A. Taylor Hoopes, deceased, to Thomas W. Pierce, trustee. The plaintiff therefore had legal notice of the assignment, and of all that it contained at the time at which he took the assignment from Harris which depended upon the title which Harris secured from Bradley, executor.
The evidence in the court below discloses the fact that a paper purporting to be the last will and testament of A. Taylor Hoopes, deceased, dated May 17, 1888, was duly admitted to probate by the register of wills on the 16th of May, 1892, and letters testamentary thereunder granted to Thomas W. Pierce, Esq., and E. Malin Hoopes. On the 6th of July, 1892, an application was presented to the register by Caleb H. Brad
Mr. Justice Dean, in delivering the opinion of the court therein, says: “ The decree of the register was that the decree of probate of the first will be vacated and annulled and, that
The Supreme Court were, therefore, clearly of the opinion that every question involved in this controversy would necessarily come before the orphans’ court on the appeal; and, as that appeal is still pending, we must, of course, conclude that all questions arising thereunder are in abeyance and will so continue until it is finally determined.
It may be alleged that this gives rise to a double issue and that the court will be determining at the same time the validity of one will and the invalidity of another, but this situation is not incongruous and is referred to as entirely proper in Cawley’s Appeal, 162 Pa. 520.
Whether the letters testamentary issued by the register to Thomas W. Pierce and E. Malin Hoopes are valid or invalid cannot be finally determined, until the appeal in the orphans’ court is disposed of. It 'follows that the assignment of the 14th of January, 1893, made by these executors to Thomas W. Pierce, trustee, was valid, and that the payment made by the defendant terre tenant to the said Thomas W. Pierce was a good payment of the mortgage, and that the court below very properly ruled finally as it did practically on the question of . the admission of evidence, that the validity of the first will of A. Taylor Hoopes and the letters testamentary issued thereunder could not be collaterally attacked in a scire facias upon the mortgage. In Shauffler v. Stoever, Admr., etc., 4 S. & R.
It is claimed by the appellant that he was an innocent holder for value, that he had paid for the mortgage and had received a regular assignment from a party holding by assignment from one who appeared upon the record to be the regular executor of A. Taylor Hoopes, deceased; but there was upon the record abundant notice to him that the same mortgage had been assigned by others claiming to be the executors of A. Taylor Hoopes, deceased, and that letters testamentary under the will of the said A. Taylor Hoopes had been regularly issued to them; and, although these letters had been revoked by the register, that the decree revoking them had been appealed from and was then pending in the orphans’ court. It is claimed also that Hanthorn, the terre tenant, had notice by letter dated March 24, 1898, from the attorney of Bradley, the executor of the second will, that he should not pay any money due upon the mortgage to the executors of the first will, but that he would be expected to pay the moneys due thereon to Mr. C. H. Bradley or his counsel. The notice is so argumentative in character that it would seem to convey the impression that the attorney who wrote it was himself in doubt as to the party really entitled to receive the money. It appears, from a letter of Hanthorn, the terre tenant, dated at Trenton, N. J., December 30, 1893, that, in accordance with the notice, he had called to see the counsel of Bradley and that he not having the bond and mortgage postponed the settlement of the same until the 1st of October, in and by which said letter Hanthorn offered to pay the same to Bradley, if the original papers were furnished him. It appears, from the evidence taken in the court below, that Bradley never had the original bond and mortgage in his possession, that the same had been delivered by the executors of the first will to