6 Watts 238 | Pa. | 1837
The opinion of the Court was delivered by
The first point made by the plaintiffs in error, who were the defendants below, and submitted by their counsel to the court for their advice and direction thereon to the jury, we think was rightly answered; Cook and wife being still alive, the suit could only be maintained in their names; and notwithstanding it was stated on the record to have been brought for the use of Alexander M’Elroy, it is clear, that under the state of the pleadings in the cause, it was unnecessary to prove that he had any interest in, or claim to the subject matter in controversy. It was all sufficient to show that Cook and wife had a good cause of action, and that they were entitled to. recover.
In the answer, however, of the court, to the second point, submitted on the part of the plaintiffs in error, we think there is error. According to the tenor of the will, we are inclined to the opinion that the testator only intended to charge his. daughters, Elizabeth and Rachael, severally, with their respective proportions of the 800 dollars, which he directed they should pay to their sister, Sarah, one of the plaintiffs below. By that part of the will, out of which
Sarah having no issue at the death of the testator, Elizabeth and Rachael, by their respective husbands, thereupon took possession of the third part of the remainder of the plantation, under the will. Rachael and her husband, David Greer, afterwards, sold and conveyed then interest and estate therein, to David Brandt, against whom this action was instituted, in the court below, conjointly with Elizabeth and her husband, James Montgomery, by Sarah and her husband, to recover 400 dollars, of the 800 dollars, being the second and third instalments thereof.
Now it is clear, from the will, that the testator did not intend that the 800 dollars should be wholly paid by either Elizabeth or Rachael; nor yet by them either jointly or severally in equal portions; for he has expressly directed, that Rachael shall pay the amount of a note she held against him, that is, 163 dollars more than Elizabeth; thus making Elizabeth’s proportion of each instalment, 79 dollars 374 cents, and Rachael’s 120 dollars 624 cents. But it is argued that the whole 800 dollars are charged by the testator, against them jointly, according to the express terms of the will, which are, “that the said 800 dollars shall be paid by them in four equal payments, of 200 dollars each, to the said Sarah.” And it is contended, that the previous clause, “ they paying to her, the said Sarah, in lieu thereof, the sum of 800 dollars, equally, between them, the said Elizabeth and the said Rachael, only that the said Rachael shall pay of this sum of 800 dollars, the amount of a note, she holds on me, more than her sister Elizabeth,” was introduced, merely to establish the proportion that each should contribute, when they should come to settle and adjust the payment of the whole sum between themselves, and not to limit and apportion the sum that Sarah should have a right to demand from each of them. It is material here, to know and bear in mind, that
This suit, then being brought against Elizabeth and her husband, jointly, with David Brandt, the alienee of Rachael and her husband, cannot be sustained.
Judgment reversed.