81 Pa. 494 | Pa. | 1876
delivered the opinion of the court,
This was an action of assumpsit, brought in the court below by the administrator of Sarah Lusk, deceased, against the administrator of John McBride, deceased, to recover a sum of money of which it was alleged that McBride had taken possession before his death, and which belonged to Sarah Lusk. It is clear, that though McBride’s possession might have been tortious originally, yet the plaintiff below had a perfect right to waive the tort and recover in
It appeared that two brothers and four sisters, children of Patrick Lusk, lived together upon a farm, which they had derived from their father, who died in 1816, leaving other children as well as other property.
The brothers and sisters all died intestate and without issue. Sarah and Isabella survived the others. John McBride lived with them; reputed to have married Isabella. Sarah died in March 1872. John McBride and Isabella continued to live together on the farm until July 22d 1873, when they were robbed and both murdered by one Nelson E. Wade, who was afterwards tried and convicted for the crime. A considerable amount of money was found in different .parts of the house, which was taken possession of by the administrator of John McBride. . The endeavor of the plaintiff below was to show that this money was the money of the Lusk brothers and sisters, which they had acquired by a long course of labor and saving — that at least a moiety of it was the property of Sarah Lusk at the time of her death. Sarah Lusk had purchased of her brother, John Lusk, in 1859, a farm, which, on the 28th day of June 1871, she had conveyed to John McBride and Isabella McBride (formerly Isabella Lusk), for the consideration of $3000. Primá facie this consideration was paid, and it was urged that to that extent there was some evidence to sustain a claim by the estate of Sarah Lusk upon the estate of John McBride. In view of these facts, without referring to other details, it seemed very clear that there was evidence proper, to be left to the jury. It is evident then that the eighth, ninth, tenth, eleventh and twelfth assignments of error, which are all of them predicated of the assumption that there was no sufficient evidence for the jury, must be dismissed.
We think, however, that the first and second assignments of error must be sustained. Samuel Lusk and Martha Scudder, children of James Lusk, a deceased brother of Sarah Lusk, were offered as witnesses by the plaintiff below, objected to as interested in the event of the cause, and therefore incompetent, but the objection was overruled and the witnesses admitted. They would be entitled, as distributees, to a share of the estate of Sarah Lusk. They were directly interested, therefore, that the plaintiff should recover, and prior to the Act of April 15th 1869, Pamph. L.-30,
Even looking beyond the letter to the spirit of the act, that a living party shall not be heard to prove a claim against the estate of a decedent, who was also a party to the contract or transaction, whose lips are now sealed, the admission of these witnesses cannot be sustained. If Sarah Lusk, when living, would not have been competent against the administrator of John McBride, neither can those who stand in her shoes, and will be entitled to a part of the money when recovered. This was not a controversy between parties claiming by devolution under a deceased owner respecting the right of such owner. They claimed not from one but two parties, whose rights were adverse to each other. Neither was their evidence proposed to to be confined to facts occurring subsequently to the decease of John McBride, so as to be within the provision of the supplement of April 9th 1870, Pamph. L. 44.
We think, too, that the third assignment of error must be sustained. It was certainly no objection to the competency of the evidence offered, that the facts occurred more than thirty years ago, and were too remote. That might be an available ground of attacking the credibility of the witness, but that was for the jury. It was relevant to prove the intemperate habits of John McBride, but not in the way proposed, — that the Lusk family had given notice to a tavern-keeper not to trust him. That after all was mere hearsay. Nor was it at all relevant that McBride denied that Isabella was his wife. The plaintiff below was suing as the administrator of Sarah Lusk, who died before Isabella, and was suing to recover her property, not derived from Isabella. Whether Isabella was or was not the lawful wife of John McBride, was not a question relevant to the issue before the jury.
We think there was error in admitting the evidence complained of in the fourth assignment. It was irrelevant that the claim had been made before an auditor in the Orphans’ Court, and nothing to the issue why the case had been ordered to be placed at the head of the list.
We think the court were right in admitting the evidence of the partition of the farm in Woodward township, between the six brothers and sisters, and that they took possession of their respective purparts, and on whose lands John McBride lived during his life. It had an evident bearing upon the main point, whether the money in the house belonged to the Lusks or to McBride. So, also,
We think the court were right in rejecting evidence offered by the defendant of the declaration by Nelson E. Wade, the robber and murderer, of what he had taken from the house. It was, of course, mere hearsay.
As to the fourteenth and last assignment, it is disposed of by Hall v. Rupley, 10 Barr 231, where it was held that although a withdrawn declaration and a bill of particulars delivered under it ought not to be taken out by the jury, yet the judgment will not be reversed if the declaration is in substance the same as the one on which the cause was tried, and the bill is but a statement of the claim of which evidence was given on the trial.
Judgment reversed and a venire facias de novo awarded.
