4 Whart. 130 | Pa. | 1839
The opinion of the Court was delivered by
— The Court below decided correctly in admitting the evidence mentioned in the first bill of exception, showing that Joseph Rittenhouse, the son of Martin Rittenhouse, and father- of the plaintiff’s intestate, was indebted to Martin Rittenhouse, the grandfather of the same. This suit, it must be observed, is brought by the administrator of the grandson, to recover from the grandfather’s estate a part, to wit, one-third, of that portion of the grandfather’s personal estate, to which Joseph, the father of the plaintiff’s intestate, would have been entitled, had he survived his father, Martin Rittenhouse, the grandfather of the plaintiff’s intestate. Joseph Rittenhouse, the intestate of the plaintiff, being one of three children of Joseph, the son of Martin, could only claim, at most, one-third of what his father
■ The second error,' which- is an exception also to evidence, does not seem to be well founded in fact; because it does not appear that the declarations .of Martin Rittenhouse, the grandfather, made after the death of Joseph, his son, were either offered by the defendant below, or admitted by the Court for the- purpose of proving the indebtedness of Joseph to him. _ If they had, whether Joseph were dead or living at the time,- they would not have been admissible, unless made in the presence and hearing of Joseph his son. A father can no more make his child a debtor to him, simply by declaring it to be so, than he can a stranger: nor will his declarations of the fact of indebtedness be evidence in the one case, more than the other.
The third error is an exception to the .admission, in évidence, of the declarations of the grandfather, made long after the death of Joseph his son, tending to prove that Joseph had been advanced by him, ;to an amount greatly exceeding his portion of his father’s estate. - Such verbal declarations, without other evidence, showing the fact of Joseph’s having actually received money or other thing of value, and what it was that he had gotten, would be no evidence of advancement : to admit it would be attended with dangerous consequences, and tend.to work great injustice oftentimes, among children, in the distribution of their parents’ estate. It would seem to militate against both the statutes of frauds and of wills; because, in effect, it Vrould be putting it in. the power of the parent, to deprive some of his children from all participation in his estate,-by mere word of
The defendants’ counsel endeavoured to make it a question, whether a party can take advantage of the statute of limitations, excepting where he has it in his power to plead it; and seemed to intimate that the affirmative of this question might be true; and if so, the plaintiff here could not avail himself of the statute; because it was not practicable for him to have it introduced into the pleadings in any shape or form. This however is altogether untenable; because it is every day’s practice in some parts of the state, where the plaintiff in prosecuting his action for the recovery of a debt, owing to him by the defendant, is met, without any plea of set-off being put in, but under the plea of payment, as he may be, by the express provision of our defalcation act, with a claim from the defendant of a simple contract debt, owing to him at one time by the plaintiff, of more than six years’ standing before the commencement of the action, to interpose the statute of limitations against it by his verbal allegation made before the Court and jury without putting any thing on the record in regard to it. In England a defendant, to avail himself of a set-off against the plaintiff’s demand, must plead it, so that if it be barred by the statute of limitations there, the plaintiff may very properly set up the statute by way of replication to defeat it: and this may be the legitimate course for the plaintiff to adopt and pursue in such case. But here by the express terms of our defalcation act, the defendant may give a set-off in evidence under the plea of payment, which plea does not admit of such replication, without a seeming impertinence or irrelevancy. Some of the Courts however, if not all in the state, have established a rule, that when the defendant intends to give such evidence under the plea of payment, he shall give the plaintiff previous notice of it, in order to prevent surprise.
There is nothing in the fourth error: nor has it indeed been insisted on. The declaration of Nicholas Rittenhouse, made at the time he paid the money, stating that it was the father’s money, which he was paying the debt with for the father, being part of the res gestee was clearly admissible as evidence of the fact: and being introduced, to show that the money was in fact paid by the father, when the receipt taken for the payment of it, by Nicholas, stated it as received of the latter, without any mention of the father at all, rendered it quite important as well as pertinent.
The fifth error which is the last, is an exception to the charge of the Court delivered to the jury, in answer to a point submitted by
The account between them, being stated and kept in the form it' was, left no ground for a presumption that the moneys charged in it against the son, were an advancement and not a debt: and what seemed to render it most conclusively so, is the charge of interest made therein against the son, upon the moneys received by him of,
Judgment reversed and a venire de novo awarded.