WEBB υ. EVANS. 1809. pendent on the bounty of her children, in a state of helpless penury. But suppose this to be the case, we may say with the master of the rolls in French v. Davies, "We are not now say"ing what the testator would have done, if he had recollected "his wife's dower. Privately we may almost be satisfied, if he "had recollected it, he would have made a condition upon her. "He has not done so expressly. Has he done it, so that we "can, as judges, say it is impossible he could mean her to have "both? We cannot upon this will say she has disappointed "him." Or, according to his language in Strahan v. Sutton, we must suppose every testator meant to give all he had a "right to give. The case is clearly decided, that a gift of an estate out of which the widow is dowable, does not prevent "her from taking any other estate the testator has thought "fit to give her." In fact this very question came before the late chief justice McKean and myself, in an ejectment commenced by the lessee of William Evans against the now plaintiff Webb, on a case sta ted at nisi prius at Lancaster in May 1794. We took time to advise thereon after the argument, and in January term 1795, delivered our opinion with our reasons, that the claim of Webb in right of his wife to her dower, was not inconsistent with or in contradiction of the will. I see no reason for altering the opinion which I then formed on due deliberation. But my mind is not yet satisfied as to the manner of entering judgment on the verdict. The late mournful event has put it out of my power to examine the law, and consult the entries in such cases, as fully as I intended; and therefore the cause must be continued under advisement.* BRACKENRIDGE J. concurred. Cur. adv. vult. At a subsequent day the demandants by their attorney released the damages found by the jury; and on motion, the court gave Judgment for the demandants. His Honour, at the close of his opinion, informed the bar, that the late Mr. Justice Smith had seen and concurred in it. GRASSER and wife against ECKART and wife. THIS 'HIS was an appeal from the decision of Yeates J. at a cir- 1809. Saturday, Where the residue of a testator's personal es intention executor is or as a trus The action was brought to recover a distributive share of the estate of Frederick White, intestate, from the defendants, who tate is not in the writ were styled his administrators. The declaration con- by his will, it disposed of tained two counts. The first was a general indebitatus assump-is always a question of sit for money had and received by Eckart and wife to the use of Grasser and wife in right of the wife; but, although the re- whether the cital of the writ stated the defendants to have been attached as entitled to it. administrators, the count was against them personally. The beneficially, second was a special count for the distributive share in ques- tee; and this tion. It recited that Frederick White, a minor, and only child question deof Frederick White deceased, being possessed of personal pro- the sufficienpends upon perty to the value of 3000%. died intestate and without issue, not cy of the evidence by having or leaving any brothers and sisters of the whole or half which the blood; by reason whereof the personal estate vested in the next of kin, &c. It then set out a title to a distributive share in the But the bare wife of Grasser, that the defendants took upon themselves the appointment burden of administration, and that 3000l. beyond all debts and tor, is prima funeral expenses had come to their hands, by reason whereof facie evithey became liable to pay the plaintiff's share, which was aver- is given to red to amount to 1000/.; and in consideration whereof they uncially. dertook and promised to pay. But the count did not state that A testator they became liable to pay as administrators, or that they had orders all his assumed as administrators. The defendants pleaded non as- neral expensumpsit, plene administravit, and payment with leave. intention is made out. of an execu dence that it him benefi debts and fu ses to be paid, and and the use Upon the trial of the cause, a number of points were made, gives his and afterwards elaborately argued upon the appeal; but as this wife 7007. court confined their opinion to two, it is unnecessary to give of his real any other statement than such as is requisite to introduce these estate, until points. his only child, a son, then about five years old, shall be fifteen. He gives his son 157., a few specific legacies, and all'his real estate; and then orders the residue of his personal estate, except a table and two stoves, to be sold by his executors at public sale, as soon as might be after his death, to the best advantage; and makes his wife and two friends executors. Held, that they take as trustees. A count, charging man and wife upon a joint assumption in consideration of money had and received by them to the plaintiff's use, is bad, and cannot be amended under the arbitration law. Judgment may be arrested for an objection on the face of the record, though it was not assigned at the time of filing the motion, or of entering an appeal. 1809. GRASSER v. The wife of Eckart was the widow of Frederick White the father, and one of his executors. The father died in 1798, leaving the intestate his only child about five years of age, who ECKART. died before the 8th July 1800. On the 25th November 1800 these executors settled their account in the register's office, and acknowledged a balance of 2,434/. 2s. 10d. to remain in their hands, to be paid as the will directed. All the property came exclusively into the hands of the defendants in consequence of this settlement. By a second account filed the 27th February 1805, this balance was considerably reduced; and on the same day the defendants settled the administration account of the estate of Frederick White the son, in which they did not charge themselves with his share of the above balance, which was the surplus of his father's personal property not disposed of by his will, and which in fact was the principal part, if not the whole of the personal property, said to have been left by the son. The defendants contended that this surplus went to the executors of the father beneficially, and that the intestate took no part of it; and for this position they relied upon the will, the material clauses of which were these. "As to my worldly estate wherewith it has pleased God to "bless me, I bequeath the same in the manner following," viz. "First, I order, and it is my will, that all my just debts and "funeral expenses be paid and discharged out of my estate, "by my executors, as soon as conveniently may be after my "decease." "Item, Igive and bequeath to my beloved wife Susannah, the "sum of 7001. lawful money of Pennsylvania, to her her heirs "and assigns forever." "I also order that my wife Susannah 66 may live on the place I now live on until my son arrives at "the age of fifteen years of age." Item, I give, devise, and bequeath, unto my only child "Frederick White, all the land and real estate I am now pos“sessed of, here or elsewhere, to hold to him his heirs and as signs forever. I also give and bequeath unto my said son, "my round top chest and all my books, (except my account "books) and my silver watch, and my silver shoe and knee buc"kles, twelve new pewter plates, and fifteen pounds in hard cash "to be locked in said chest, and to remain there until he is of a sufficient age to use them, and also one horse creature, and "one forty gallon still." "Item, I give and bequeath unto Frederick Hoofman 201. "without interest, that I lent to the widow Groanbaugh, to him "his heirs and assigns." 1809. GRASSER υ. "It is my will, and I order that all the RESIDUE and REMAIN- ECKART. "DER of my personal estate (EXCEPT MY DINING TABLE AND TWO STOVES) shall be sold by public sale by my executors or "the survivors of them, as soon as may be after my decease, To He then made his wife executrix, and two of his friends executors of the will, and dated it on the 17th March 1798. His Honour charged the jury upon this head against the defendants; giving it as his opinion, that the will furnished strong internal evidence, that White the father did not intend the residue of his personal estate to go to his executors beneficially; and that in cases like this, it was always a question of intention. The jury accordingly found for the plaintiffs, upon the first count in the declaration. The defendants moved for a new trial, which was overruled; and also in arrest of judgment for a misjoinder of counts in the declaration, the first charging the defendants personally, and the second in their representative capacity as administrators. This also was overruled by his Honour, and the defendants entered their appeal. Hopkins, for the defendants, went fully into all the objections urged below. But it is only material to give the substance of his argument upon the right of the executors under the will and upon the defects of the declaration. Upon the first question he argued, that the executors took the residue beneficially. By law the appointment of an executor vests in him all the personal estate of the testator; and it belongs to him after payment of debts and funeral expenses, not as a compensation, but as a bounty. It is a fundamental presumption of law that the appointment of executors is a gift to them of what is undisposed of; and although equity converts them into trustees, where it is necessarily collected from the will that the testator merely intended them the office, 2 Fonbl. 131. yet the rule laid down by lord Thurlow in Bowker v. Hunter, (a) is, that the executors shall take beneficially, "unless there is an irresistible inference to the contrary." In the present case, one of the execu (a) 1 Bro. Cha. 329. 1809. GRASSER υ. tors, the wife, has a legacy, but the others not; it therefore makes no impression on the case; for it is undeni ably settled, that a legacy to one only of two or more exECKART ecutors, shall exclude neither from the surplus, because the testator might intend to such one a preference pro tanto: Farrington v. Knightly (a). The question then comes to this, whether there is an irresistible inference, or, as it is stated in Clennell v. Lewthwaite, (b) a strong and violent presumption in the present case, that the testator intended his executors to be trustees for the next of kin; if there is not, then as in England, so in this state, according to Boudinot v. Bradford, (c) they take it beneficially; and there must be a new trial. Upon the face of the will, there is no such intention to be found. The son was the only object to interfere with the executors. He takes the whole real estate of the testator, which was of great value; he also takes certain specific legacies, and a small money legacy which it would have been absurd to give him, and to lock up in his chest, were he to come in for a large portion of the surplus. The direction to sell, though it was used below as an argument against the defendants, is in their favour. In the first place, two stoves and a dining table are excepted from the residue, in compliance with a known custom among the Germans, to reserve these articles for the use of their house, and to go with it to the heir. It shews, in the same manner as an exception proves the rule, that the son was to have nothing more. In the next place, the residue to be sold was that which remained after the payment of legacies; the design was therefore to create a fund for the payment of debts, which was the best way to meet them; and a division of the surplus of that fund in money, among his executors, was the most certain preventive of disputes, and is a confirmation of the principle of law, that they were objects of his bounty, since he thus consulted their interest. In arrest of judgment there are two objections to the declaration. 1. A misjoinder of counts. The first is in the personal, and the second in the representative capacity. The plea of plene administravit cannot be pleaded to both; and the same judgment cannot be rendered upon both. Jennings v. Newman. (d) Nor is it cured by taking a verdict upon one count. Bage (c) 2 Dall. 268. (d) 4 D. & E. 347. (a) 1 P. Wms. 549. Cox's note. |