84 Pa. 306 | Pa. | 1877
delivered the opinion of the court,
The subjects of complaint in the first and fifth assignments of error are the surcharge of $2790, for government bonds and currency belonging to the estate, which came into the hands of the accountant; and the incompetency of Mr. and Mrs. Cart as witnesses to prove the possession and ownership of the bonds as part of the assets of the estate. The surcharge, and evidence in support of it, are so connected that they can be better considered together.
In 1871, letters of administration were issued to the appellant on the estate of his wife, Mary S. Sawtelle, who died intestate leaving an only daughter, Eva A. Eichards, afterwards intermarried with J. J. Cart. About three years thereafter, the administrator presented an account, to which exceptions were filed on behalf of Mrs. Cart, and an auditor was appointed to pass upon the same, and make distribution. The exceptants alleged that Mrs. Sawtelle had in her own right $2000 in government bonds, and about $500 in currency, with which the accountant should be charged; and, on the hearing before the auditor, several witnesses were called for the purpose of showing that these bonds, as well as the money, belonged to and were in her possession at the time of her decease, and that they came into the hands of the accountant shortly after-wards. Among others, Mr. and Mrs. Cart were examined, and both testified to declarations and admissions of the appellant, in relation to the bonds and money, since the decease of his wife; but, in addition to- this, Mrs. Cart testified to facts which occurred in the lifetime of her mother. The auditor surcharged the accountant with the value of the bonds, and the money, with interest thereon; and, after re-stating the account and distributing a portion of the fund to several creditors, he divided the residue equally between the accountant and Mrs. Cart. The report was confirmed and the administrator appealed from the decree. As already stated, the testimony of Mr. Cart was confined to what transpired after the decease of his mother-in-law, and for this he was clearly competent under the Act of 1870; but a portion of his wife's testimony related to matters which transpired during her mother’s lifetime, tending to prove her possession and ownership of the bonds, and this is the only part of her testimony about which there appears to be any doubt as to her competency. The word “ actions” as used in the proviso to the Act of 1869, was doubtless intended to embrace all forms of civil proceedings, as well as actions, technically so called, by or against executors,
Leaving out of view then that portion of Mrs. Cart’s testimony, which is claimed to be incompetent, was there sufficient other evidence, before the auditor, to sustain his finding as to the facts upon which the surcharge is based? We think there was. The proof of Mrs. Sawtelle’s custody and ownership of the bonds, and the appellant’s possession of them, after her decease, was clear and conclusive. The testimony of Mrs. Doctor Hall, Mrs. Matcher and others, tended strongly to establish these facts. In addition to this, there was the testimony of Mr. Cart and his wife, as to declarations and admissions of the accountant after the decease of his wife, as to which they were both clearly competent under the Act of 1870. Mrs. Cart testified that she saw the bonds, after her mother’s death, in possession of the accountant. She says, “ He and I were talking and, in handling some other money, he took them- out and said, they are yours.” * * * “ He told me that they were the same that mother had, and that they were to be kept for me.” Again, when he was about going to New York “ he said he had them deposited and told me where to find the papers, showing where they were, in case anything happened him. He told me the papers were in the legs of the boots he was wearing, and that I should be sure to get the boots.” * * * “At the time I saw him on North street, he told me they were the bonds of my mother, and he frequently told me so. He said he considered them mine and would never tread on them. I frequently asked him for them, but he would always put me off to some other, time, but he never gave them to me. I have had conversations with him since my marriage to Mr. Cart, but he always bluffed me.off.__ Sometimes he said he had them in the safe, and at other times he denied that he had them.”
This testimony and a great deal more of like character was before the auditor. In arriving at his conclusions of fact he had no occasion to avail himself of that portion of Mrs. Cart’s testimony which is specially objected to, and we infer from what is said in his report that in point of fact it was excluded from consideration. There
The Given mortgage, which is the subject of the second assignment, was not entitled to participate in the distribution. While it was doubtless a valid lien on the land embraced therein, it was not a personal obligation or an instrument on which an action could have been sustained against Mrs. Sawtelle personally, in her lifetime, nor against her administrator to charge her estate generally. The remedy of the mortgagee is against the land alone, and if he fails to obtain satisfaction from it he cannot, in any form of proceeding, resort to the estate of the mortgagor remaining in the hands of her administrator. For the same reason the judgment held by the First National Bank of Carlisle was not entitled to share in the distribution. The bond upon which the judgment was entered was void as a personal obligation, but having been given for purchase-money of real estate conveyed to her, the judgment against the land purchased is upheld and may be enforced on equitable grounds, to prevent the injustice of permitting her or her heirs to withhold the price and retain the land. The only recourse is against the land.
The claims of Hr. Dale and Mrs. Dr. Hall for medical attendance were also improperly allowed. It is very clear that if suit had been brought against Sawtelle and his wife, in her lifetime, for the purpose of charging her separate estate for the services rendered to her, the testimony adduced before the auditor would have been wholly insufficient. Instead of showing that they were rendered upon request of the wife, it appears that the husband himself employed one of the physicians, and as to the other there is no evidence on the subject. The act enables the wife to bind her separate estate for' necessaries obtained for herself' and family, but
It is ordered, adjudged and decreed that so much of the decree of the Orphans’ Court as determines the balance in the hands of the accountant for distribution be affirmed, and the residue of the decree be reversed and set aside; and it is now ordered and decreed that the said balance, viz., $2002.20, with interest from November 30th 1874, be equally divided between the appellant, N. H. Sawtelle, and Mrs. Eva A. Cart; anthat the costs of the appeal be paid by the appellant.
