Shaeffer v. M'Kinstry

8 Watts 258 | Pa. | 1839

The opinion of the Court was delivered by

Huston, J.

The defence alleged by Daniel Shaeffer is, that he, as acting administrator of his father, must receive the share of his father’s estate which would have become due to Lackens and wife, in right of the wife, who was sister of D. Shaeffer; and that on the death of his sister, in 1831, her share will go to her children, and Lackens cannot receive more than the interest as tenant by courtesy. It is entirely possible that a knowledge that Lackens would probably be entitled to receive money through his hands, was one reason why Daniel went surety in the single bill, and it is possible he would not have become surety if he had foreseen that he would be the paymaster of the bill. The law cannot exonerate him on this account. Few men go surety for another, without an expectation that the principal will be able to pay, and very often the surety could show that he had some reason for his expectation. The •obligation in this case is positive as to the amount to be paid, and that it is to be paid with interest. The only contingency was as to the time of payment. When that time should arrive, depended on the children of Jacob Shaeffer, and on none more than Daniel, •the acting administrator. If he has suffered by delay, in not selling the estate, it was his own delay. The guardians of William H. M’Kinstry did their duty in taking surety for the debt. No one thought of the death of Mrs Lackens, or if the guardians thought •of it, they provided against loss to their ward by taking the single 'bill of Lackens, with a sufficient surety, for the whole amount due ■their ward, and interest. No court has a right to make the sum contingent where it is for a sum fairly due, and where delay in collecting it was occasioned by another person joining in a single ■bill for the payment of the whole debt at a future period; and where the loss, if any, falls on the surety, it is the consequence of his own delay to sell, and is in no way attributable to the plaintiffs.

Judgment affirmed.