70 Pa. 244 | Pa. | 1872
The opinion of the court was delivered, January 9th 1872, by
We agree entirely with the zealous and able counsel for the defendant in error, who say, in their printed argument, that this case presents a single point: “ Can an action be sustained by John W. Scott against the executor of John Scott, upon the covenant of John Scott, made the 22d day of November 1849, which was broken by John Scott in his lifetime, and fully performed and kept by John W. Scott on his part ?”
The covenant referred to, that upon which this action is based, is contained in an instrument of writing, which, though in form a deed, was held by this court, in Turner v. Scott, 1 P. F. Smith 126, to be a last will and testament, and, therefore, ambulatory until the death of the testator, and revocable and actually revoked by his subsequent will, dated February 2d 1861.
How can an action be sustained on a revocable and revoked instrument ?
It is settled, indeed, by the best authority in the law, that an ex
All the authorities are the other way: Clark v. McAnulty, 3 S. & R. 364; Paul v. Witman, 3 W. & S. 407; Rawle on Covenants of Title 240.
Judgment reversed.