112 Pa. 390 | Pa. | 1886
delivered the opinion of the court, April 26th, 1886.
We think the radical difficulty in this case is that it is an action against one who is an executor, to hold him personally liable upon a verbal promise to pay a legacy. Since the Act of 26th April, 1855, Purd. 724, pl. 4, the decisions appear to be uniform that such a promise confers no right of action against the executor individually. Thus we said in Sidle v. Anderson, 9 Wr., p. 468: “If there was a promise by the administrator to be personally liable, it had no other consideration than that
In Burt v. Herron, 16 P. F. S., on p. 404, we said: “To charge the executors upon their own promise, with proof of assets, the action must have been against them personally and their promise in writing, by the Act of April 26th, 1855.”
Whether, therefore, there were assets in the hands of the defendant in this case, or not, his verbal promise to pay the plaintiff her legacy, imposed no personal liability upon him, and no fight of action was thereby conferred. This objection, as it touches the jurisdiction, is fatal at any stage of the case: Black’s Ex’r v. Black’s Ex’r, 10 Cas., 354; Musselman’s Appeal, 101 P. S. R., 169.
The argument that the legacy is demonstrative, and the defendant a trustee who appropriated it to his own use, is of no avail. The testator simply directed that his personal estate
These considerations render unnecessary any examination of the other assignments of error.
Judgment reversed.