Imatges de pàgina
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was liable, and the plea of non assumpsit applies to the defendant and not to the testator. Under this plea the defendant may give every matter in evidence which shows either that he made no assumption before the suit brought, or that the demand was extinguished before the suit brought. Supposing upon this issue it had been proved expressly, that the plaintiff had a cause of action, but that it did not arise until after the commencement of the suit. Surely he could not have recovered. Now that is the very case appearing on this record. Whenever the will was finally established, the law raised an assumption; but that was not till after the commencement of the action. I am therefore of opinion that the judgment should be reversed.

YEATES J. after stating the facts at large, delivered his opinion.

I consider the exception taken to this suit as brought prematurely, to be fatal. Upon this point I wholly concur with the President. The objection was founded on the probate of the will by the register, the operation of whose sentence remained in suspense, while the issue taken upon the validity of the will was pending and undetermined. The defendant in error relied on this probate only, and did not adduce the witnesses to the will, nor account for their non-attendance. Until the will was finally determined on, the executor or administrator with the will annexed was under neither a legal nor moral obligation to pay the legacies devised. If he made such payments, and the validity of the will should be afterwards. established in the dernier resort, he would risk his own property. No debt due from the testator was sought for, but a demand flowing from his bounty. Whether he had been thus bountiful or not, formed a material subject of inquiry. The cause of action arose on the will itself; and on the plea of non-assumpsit, every species of defence is open to the defendant. It is fully settled, that on this issue, every thing may be given in evidence which shows that the plaintiff has no right to recover, except perhaps a general release. 2 Barnes 293., 1 Ld. Ray. 217., 2 Stra. 733., 3 Burr. 1353. And even as to this exception the law is doubtful, 2 Burr. 1010., Buller 148, 149. The plaintiff below was bound to prove her case as she laid it, and must show an existing cause of action when she brought her suit. A legislative exposition of the

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effect of an appeal from the Register's Court is given in the 18th section of the act of 13th April 1791, 3 Dall. St. Laws 98. "No appeal from the decree of the said Register's "Courts concerning the validity of a will or the right to "administer, shall stay the proceedings or prejudice the act "of any executor or administrator pending the same, pro"vided the executor shall give sufficient security for the "faithful execution of the will and testament to the register &c."

The case cited from Godolphin's Orphan's Legacy 64, third edit., fully proves the proposition which I have attempted to establish. There debt was brought by an executor, and the will proved by sentence was shewn in Court. The defendant pleaded that the pretended testator died intestate, and that administration was committed to him, and shewed an appeal from the said sentence of the probate of the will. Coke and Doderidge held that the appeal suspended the probate, and so upon the matter was not any probate at all, and therefore the plaintiff could not have action.

I cannot conceive that Hantz is concluded by taking out letters of administration de bonis non with the will annexed, from insisting that legal evidence should be given of the will, or that his entry of a judgment in the Circuit Court docket on the 25th May 1805, and issuing an execution for costs returnable to December term following, could operate as the abandonment of an appeal instituted by his adversaries, without their consent. This was a palpable mistake, and was rectified at once by the counsel. The appeal to this Court remained on our records. It is admitted by the counsel of the defendant in error, that he brought forward his appeal, and argued it in May term 1810. Why was this done, if the appeal had been previously abandoned? Why was it thought necessary that the decision of this Court should be pronounced? If the judgment of the Circuit Court had not been affirmed here, previous to the trial of the present cause, it cannot be pretended that the probate of the will before the register could have been admitted in evidence. I can see no reason why, when it has been affirmed, our judgment in 1810 should have a retrospective effect to validate proceedings instituted to August term 1807.

I hasten to the other matters assigned for error, wherein I fully assent to the charge of the President to the jury.

His remarks as to marriage being a civil contract by our laws, I take to be perfectly correct. It is binding between the parties, when entered into with full consent per verba in presenti. The acknowledgments of the parties being man and wife, evidently refer to the illicit connection between them during the subsisting marriage between Hantz and his former wife, who was then living; and as to what passed in the presence of Mr. Watts, which has been particularly detailed by the Chief Justice, an explicit consent was not given on the part of the woman, nor did he himself consider it as a valid marriage at the time, because he recommended to them more than once to be married by a clergyman, and he thought they went out for that purpose.

There is no difficulty in saying that where it may be fairly presumed that money has been received for the use of another, there is no occasion for express proof. If the case will justify it, the jury may presume the payment of money. as well as any other fact.

And as to the tender of the refunding bond to the plaintiff in error, previous to the commencment of the suit, if he meant to have made that a serious defect, he might have brought it before the Court upon an objection against the suit being sustained, or might have pleaded it in abatement, so that the fact might have been put in issue and fairly tried. When a suit for a legacy has progressed to a trial on its merits, and no complaint made of the want of a tender to the executor or administrator with the will annexed, before the action was brought, I should feel myself strongly disposed to assert, that the party had slipped his time. Here the refunding bond is actually filed in the cause; I cannot but consider the exception as a surprize on the plaintiff below on the trial. Upon the first ground alone, I am of opinion that the judgment of the Common Pleas be reversed.

"BRACKENRIDGE J. I have been unwilling to request this case to be holden under advisement, because as the judg ment is to be reversed, it would be for the interest of the plaintiff that it be done immediately, that she may go on. again. At the same time, I am not perfectly satisfied, that

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the judgment might not be supported. But it would require some investigation of principle before I could venture to give reasons of dissent. If this case should be reported with the opinions of the judges, I may give a note to be added to the report on the subject. I have been wondering only whether the defendant ought not to have pleaded at an early stage the caveat against the will, or the appeal puis darrein continuance, so as to give the plaintiff an opportunity of replying fraud and collusion, or the special matter, or perhaps negligence in the execution of the trust, that she might by damages compel an administration and settlement. What else could be done at common law by an action on the case or account render? But whether our system supersedes, that will be the question. I may consider it perhaps, and signify my concurrence with the majority, or my dissent, with the reasons in the case.

Note which may be added by the reporter.

Judgment reversed.

The facts of this case are these; the will of Henry Sealy proved 12th April 1798.
Administration, with the will annexed, committed same day to Boreas Fah-

nestock.

224 September 1802. Settlement of Boreas Fahnestock's administration account and balance, 4334l. 143. 3d.

September 24th, 1802. Letters of administration de bonis non with the will annexed of Henry Sealy, granted to Jacob Hantz.

Release same day by Jacob Hantz to B. Fahnestock, for the balance, money bonds and notes, 4334l. 148. Sd.

· August Term 1807, the present suit brought. The defendant pleads that he did not assume or promise to pay. 2. That if he did assume, he has paid. 3. That the plaintiff is the wife of the defendant.

The Court affirm the judgment so far as respects the opinion of the Court on this matter of fact plea, as decided by the jury.

No evidence of any payment appeared or was alleged on the evidence. The whole turned on the plea of the defendant that he did not assume.

This he attempted to make out, by alleging, that he was not bound to pay until the final settlement of his accounts. The question then will be, whether a legatee must pursue the executors or administrators with the will annexed, through the medium of the Register's Court, and compel a settlement by citation, attachment &c. and wait until all is ended here before he can bring a suit. The result of my opinion is, that the legatee may bring a suit without waiting for this, and this as well at common law as on our act of assembly. The proving assets over and above the debts &c. will raise a promise to pay. According to a modern decision, Cowper 284, an action may be maintained in a court of common law, against an executor in that character, on his express promise to pay a legacy in consideration of assets. And in another case, Cowper 289, it was also ruled, that on the same promise grounded on the same consideration, an action will lie against an executor personally in his own right. In another case, 3 Peere Williams 208, some

judges have held, that policy and convenience forbade the courts of common law to entertain this species of action, since they can impose no terms on the party suing; whereas courts of equity in such suits interfere in a manner highly beneficial to private families. Having no court of chancery, our act of assembly gives the action, and our courts will exercise the chancery jurisdiction, interposing terms before they permit execution.

It is not competent to the executor or administrator to plead non-assumpsit, if he means to rely on not being executor, or no will made or proved, or the will caveated. But all this should be pleaded in the first instance, and shewn specially if he means to rely on it.

From the circumstances of this case there was reason to believe that the caveat was procured by the defendant, or at least a continuance of it procured; and there was no way of getting this put in issue before a jury, but by the defendant's pleading it, and giving the plaintiff an opportunity to reply. Although the defendant obtained letters of administration &c., with an undertaking to settle his administration account within a year, this suit is not brought till five years after, and yet the defendant alleges, that no implied promise could arise, because he had not settled. It may be urged as having some analogy to this, that where a writ of error is brought against good faith, or where it manifestly appears either from the confession of the parties themselves, or from the admission of the attorney of the party who sues out the writ of error, or from expressions equivalent to an admission, that it is brought for the mere purpose of delay, it is holden to be no supersedeas. 6 Vin. Sup. 185., 4 Vin. Sup. 70, 71.

Action of debt lies on a judgment in a Court of Common Pleas after writ of error brought, and the record removed to the Court of King's Bench. 6 Wils. Bacon 420, 421.

An action of trespass for mesne profits, brought pending a writ of error. 20 Vin. 76.

Writ of error, only a supersedeas of execution, not of a suit on a judgment. The power of an executor, or the right of a legatee or devisee, is derived from the will, and not from the probate.

An executor may file a bill in equity before probate, and a subsequent probate makes the bill a good one. 3 Peere Wms. 351.

An executor accepts the trust, or administrator, and sufficient assets come to hand, is he not bound to pay without an express promise, which he cannot be compelled to give? See Bac. Abr. Tit. Legacy, letter M.

See letter L. Assent to a Legacy, ▲ Massa. Rep. 634, See 2 Dall. 100., 2 Peake's Law of Evidence 344., 1 Comyn's Dig. 30., Buller's N. P. 143., 1 Atk. 293., 1 Saund. Wms. edit. 111, 112, note 2., Ib. 336, note 10., 3 Wils. Bac. 87. letter M., lb. 95., 1 Ld, Ray. 265., 2 Ld. Ray. 1510, 1511.

It would shew the necessity of pleading the caveat depending &c., and what took place on the proving the will and the appeal, with a presumption of an abandonment of the appeal, paying costs &c.

From all these it is abundantly evident to me, or at least highly suspicious, that the caveat was by collusion, and that the whole was done to baffle the legatee. I incline to affirm the judgment of the Court, that on the plea of non-assumpsit the will ought to have been admitted in evidence. In the case of letters of adminis、. tration and non-assumpsit pleaded, 2 Dall. 100, seems in point.

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