61 Pa. 176 | Pa. | 1869
The opinion of the court was delivered, February 25th 1869, by
This was an attachment-execution issued on a judgment against Robert Sheridan, and' the question was, whether the price of certain stone sold by the defendant to the garnishee, Louis Headman, belonged to the defendant or to his wife, Annie Sheridan. This stone had been quarried by the defendant from real estate which had belonged to his father, Owen Sheridan, who, by his last will and testament, after ordering his real estate to be sold, directed one-fourth of the proceeds to be invested by his executors, and the net income thereof to be paid over to Annie Sheridan, the wife of his son Robert, to be used by her for the support of his said son and hex-self and children, with a bequest over to his children. According to the testimony of Louis Headman, the garnishee, and the only witness in the case, he purchased the stone from Robert Sheridan. “ I asked Robert about whether he had to get'the executors to release off about that stone. He said he had arranged everything right about that with them; it wasn’t necessary. He said he was to pay 12| or 20 cents a
No doubt under the will, until a sale, the wife had an interest in the land, and the executors must account to her for one-fourth of any profits made from it. If there had been- any evidence whatever in the ease that the executors had contracted with Robert Sheridan, as agent for his wife, that she should receive the stone in part of her share, the profit gained by the sale of it would have been hers, though her husband may have bestowed his own labor in quarrying and hauling it. But we have looked in vain through the testimony for any spark of evidence from which such a contract could be inferred. Surely, the act of the husband, in receipting for the payments as agent for the wife, would not make it hers. Primfi facie, he was the purchaser from the executors, and if she was, and not he, nothing would have been easier than to have proved it. It was incumbent on the wife, as against her husband’s creditors, to prove that it was hers. It was error, therefore, to submit to the jury to determine whethér “ a contract was made between the executors and husband, in good faith, that he should take out stone from a portion of the land and sell it for the benefit of the wife,” when there was no evidence whatever of any such contract.
Judgment reversed, and venire facias de novo awarded.
