| Superior Court of New Hampshire | Jul 15, 1841
It has been contended in this case, that no demand was necessary as a previous requisite for the maintenance of this suit. The contrary of this is holden in the case, Pickering vs. Pickering, 6 N. H. Rep. 120. The reason for a demand is there alleged to be, that it is not the duty of the executor to seek the legatee. It is enough if he pay when the legatee comes and demands payment. That case was held to be an exception to the general rule. The legacy was there charged as an annual payment on land, and the defendant, having entered upon and accepted the land, was held bound to pay without demand, on the ground that an acceptance of the land charged with the payment of the legacy, was equivalent to a promise of payment, and a demand was unnecessary. But the general rule was declared to be otherwise.
In Miles vs. Boyden, 3 Mass R. 213, it was holden that an action against an executor to recover a legacy, whether the suit was on a probate bond, or at common law, could not be maintained without a previous demand; and the 14 Mass. R. 428, Prescott vs. Parker, is to the same point.
The plaintiffs reside without the government, and a demand was attempted to be shown of the legacy, by Levi Wilson, under a power of attorney from the plaintiffs. It was contended that the demand by him was void, on the ground that the power of attorney was not duly authenticated.
Where a demand is made by attorney, the party has a right to require reasonable evidence of the authority of the individual to make it; but if no exception is taken at the time, then a subsequent commencement of a suit by the party in whose behalf it was made, claiming under such demand, is a ratification of it, and is prima facie evidence, at least, that it was made by his authority.
It is a general rule that if a person act as the agent or attorney of another, and the principal afterwards adopts, or confirms those acts, they will be considered as his acts, and as binding as if a precedent authority had been given. 8 Mass. R. 113, Herring & a. vs. Polley; 12 Ditto 185, Kupfer & a. vs. South Parish of Augusta; 13 Ditto 178, Odiorne vs. Maxcy & a.; Ditto 391, Boynton vs. Turner; and in case of a demand, if the individual makes no objection at the time, he is precluded from afterwards objecting, where the demand is ratified and suit is brought upon it.
There are cases where it is holden that if an attorney undertakes to act for another, and does so act, it will be presumed that he was duly authorized. 5 Mass. R. 53, Hatch vs. Smith & a. We doubt as to any presumption of agency from the acts of the agent alone; but where a party subsequently sets up these acts, it is evidence of a ratification.
In Marr vs. Plumer, 3 Greenl. 73, a note was indorsed for the use of another, who was absent and had no knowledge of the indorsement, and a suit was commenced in his name. After his return he adopted the suit, and claimed the
In the present case, a demand of the legacy was in the first instance made by Wilson, purporting to act as the agent of the plaintiffs. Exception was taken at the time to his authority, on the ground that the defendant was not satisfied that the signature of the plaintiff’s wife was in her hand writing. No other exception was taken, and it must be regarded that the power was conceded to be right in other respects. 2 Maule & Sel. 265; 1 Serg. & Rawle 393, Coe vs. Hutton; 5 Har. & Johns. 119, Battus vs. Sellers. The exception to the demand was solely as to the signature of the wife; and if her signature was immaterial, as there is but little reason to doubt, the demand might be well enough without it. 5 N. H. Rep. 564, Tucker vs. Gordon; 20 Pick. 521, Hayward vs. Hayward; Toller’s Ex. 320.
In the second instance of demand by Wilson, the objection taken was as to the form of the receipt obtained as a discharge of the legacy, and not as to its execution ; and if this receipt was a valid discharge of the claim, and no other objection was made, this demand would be sufficient.
But, however this may be, there was a third demand made by the attorney in this suit, to which no objection was taken ; and the present suit, brought by the plaintiffs, is based on this demand. This, as we have before remarked, is such a ratification of the demand then assented to, or not denied by the party, as to constitute evidence of authority from the plaintiffs to make it, until the contrary is shown.
We think, therefore, there is sufficient evidence of a demand. But motion has been made in arrest of judgment, for various reasons, which must be examined.
It is contended, in the first place, that debt will not lie for a legacy, and that the action should have been assumpsit.
The general rule as to action of debt is, that it lies in all
In England, all pecuniary legacies out of the general assets of an estate must be enforced in equity. In cases, however, where legacies are charged on land, remedy may be had at common law; and it is said by Chitty, that assumpsit will lie in such case, though debt is most usually brought. As-sumpsit will also lie in England for a specific legacy. 1 Chit. Pl. 91.
Assumpsit lies for a pecuniary legacy in Pennsylvania, without any express promise of the executor; also in Massachusetts and Connecticut. 5 Binn. 33, Clark vs. Herring; 4 Mass. R. 635, Farwell vs. Jacobs; 2 Root 156, Warren vs. Rogers; and with an express promise in New-York and North Carolina. 7 Johns. 99, Beecher vs. Beecher; 2 Hay. 153, McNeil vs. Quince; 1 Met. & Pick. Dig. 107, 108.
We have no doubt debt would lie in either case, and is the more general remedy. In Dane’s Abridgement it is said, “ where a legacy is given for a sum certain, debt has been, and may be brought; yet declarations for legacies are in no prescribed form, but, like many declarations in case, are framed according to the right and circumstances of each case; and, therefore, will vary as ⅞ different legacies are bequeathed on different grounds.” 5 Dane's Ab., ch. 147, § 3; 12 Mass. R. 537, Bartlett & a. vs. King; 7 Conn. R. 132, Knapp vs. Hanford & al.
But it is farther contended, that the declaration is neither in debt or assumpsit; and motion is made in arrest of judgment for this cause. The commencement of the declaration is in debt, and, after setting forth the fact of the legacy, alleges that the executor accepted the trust, and promised to pay the legacy to the plaintiffs, whereby he became liable, &c.
It is farther objected, that the count contains no allegation per quod actio accrevit, and that where the obligation to pay arises not merely from the instrument declared on, but also on some matter dehors stated in the declaration, the count should conclude per quod actio accrevit. 1 Chit. Pl. 347; and that here the matter, dehors the instrument declared on, is the receipt by the executor of assets sufficient for the payment of the legacies.
The answer to this exception is, that the declaration complies with the rule in substance. The declaration, after stating the legacy and assets received, alleges “ that the exe'cutor assented to, and promised to pay the same, whereby the defendant became liable to the plaintiffs to pay said legacy,” which is equivalent to saying whereby a right of action hath accrued for the same. In either case it is a mere assertion of a liability to a suit, and, after verdict, we have no doubt it is a sufficient allegation that a right of action hath accrued.
The motions in arrest do not prevail; and, a sufficient demand having been shown, there must be
Judgment on the verdict.