Duncans in Cumberland Co. PA Court Records Part 1

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Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised April 3, 2004

CUMBERLAND CO. PA
COURT RECORDS Part 1
 

"Reports of cases adjudged in the Supreme court of Pennsylvania; with some select cases at nisi prius and in the circuit courts" by the Honorable Jasper Yeates, one of the judges of the Supreme Court of Pennsylvania; ("Yeates Reports") Vol.3, pgs.203 to 204 (California State Law Library, Sacramento, 1/2004)
      JOSEPH DUNCAN Administrator of DINAH DUNCAN deceased, against Administrators of DANIEL DUNCAN deceased; Supreme Court of Pennsylvania, Lewiston; 3 Yeates 203; May, 1801, Decided.
      The following case was stated for the opinion of the court, at the last Circuit Court at Carlisle.
      The said Dinah Duncan was the widow of the aforesaid Daniel, and died on the 4th January 1791.
      It is agreed, that the defendants having made distribution of the estate of the said Daniel Duncan among his representatives, that distribution shall stand as far as it has been made; and that the plaintiff shall only claim his share of his mother the said Dinah's estate, as her eldest son. And it is submitted to the court, to determine whether the said Joseph Duncan, as eldest son of the said Dinah, is entitled to two shares of her estate, she having died before the passing of the late act of distribution; and upon the court's determination of that question, David M'Knight, John Arthur and William Alexander, are appointed referees to settle the account between the parties; but the defendants not to be accountable to the plaintiff, further than his distributive share of his said mother's estate.
      COUNSEL: Mr. Duncan for the defendants, insisted, that the 2d section of the act of assembly "for the better settling of intestate's estates," only respected the case of a father dying intestate of one capable of having a wife according to the provisions in the enacting clause; and that the pronouns him and his were not applicable to a mother dying intestate. In Holt v. Frederick, 2 Wms. 356, it was decreed, that the act of distributions was grounded on the custom of London, which never affected a widow's personal estate; and if a mother being a widow, makes advancements to a child, and dies intestate leaving other children, the child so advanced, shall not bring what he received from his mother into hotchpot.
      YEATES, J. said, that he thought this point had been at rest, since the decision of the case between the lessee of Eshelman et al. v. Hoke, December term 1799, which settled the question as to the mother's lands; that the uniform practice had been to distribute the personal property of widows, who were mothers, in the same manner as that of fathers, under the law of 1705; and that the words him and his included as well the female as male sex, by the fair rules of construction.
      BRACKENRIDGE, J. said, he had not fully made up his mind on the subject. The determination was therefore postponed. But in the term of September following, the case being stated to SHIPPEN chief justice, and SMITH justice, the court were unanimously of opinion, that the plaintiff was entitled to two shares of the surplusage of the personal estate of his mother, as her eldest son.
 

"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Horace Binney; ("Binney's Reports") Vol.6, pgs.193 to 198 (California State Law Library, Sacramento, 1/2004)
      DUNCAN and wife against FORRER; Supreme Court of Pennsylvania, Southern District, Chambersburg; 6 Binn. 193; October 9, 1813, Decided.
      This was an appeal from the decision of BRACKENRIDGE J. at a Circuit Court for Cumberland in April 1809.
      Arnold Duncan, and his wife, who was one of the daughters and legatees of Robert Patterson deceased, brought this action of account render against Forrer as the surviving executor of Patterson. The issue on which the cause went to trial was never bailiff or receivers; and the verdict being for the plaintiffs, judgment quod computet was entered in the Circuit Court. By the report of his Honor, the case was thus:
      Christian Garber, by articles of agreement dated the 29th of May 1792, covenanted to convey to Patterson and Forrer their heirs and assigns, a piece of land containing 50 acres by metes and bounds, in consideration of 606l. payable by instalments, and of the making for him two tons of bar iron in two and three years from the date. Upon the 12th June following, Garber conveyed by deed the land to Patterson and Forrer their heirs and assigns, "to have and to hold the same to them their heirs and assigns, to and for their proper use for ever." On the 26th September 1792, Patterson made his will, whereby he directed that the whole of his estate real and personal should be sold, and devised one third to his widow, and the remainder to his nine children. He appointed his widow and Forrer, who had intermarried with one of his daughters, executors; and on the 9th of October 1792, letters testamentary issued to both executors. On the 14th of April 1798, the widow having died, Forrer and his wife executed a conveyance to John Douglass and others of the premises, in consideration of 2850. It recited the title of the patentee, and the mesne conveyances down to Patterson and Forrer, and that Patterson died seized of one moiety of the lands, having first made his last will, thereby appointing his executors, with power to them or the survivor of them to sell; and the grantors then conveyed the lands with warranty, without further mention of the authority in the will. The suit was brought to oblige the defendant to account for a moiety of the proceeds of this sale.
      It appeared on the trial, that Patterson had paid a larger portion of the consideration money than Forrer, but the precise difference was not ascertained. The widow paid 100 out of the funds of the testator, and Forrer paid 180 after Patterson's death. He also made many valuable improvements on the premises, estimated at above 1500. One of the witnesses testified, that he understood the purchase was made, for erecting a forge for the manufacture of iron by Patterson and Forrer; but nothing was done by them in further prosecution of that object.
      It was admitted at the trial that a joint-tenancy was created by the words of the deed from Garber; but the judge delivered his opinion to the jury, that under all the circumstances of the case, the plaintiffs were entitled to a verdict, and he also gave his opinion, that the will of Robert Patterson was a severance of the joint-tenancy, and defeated the jus accrescendi. (MAD: arguments of counsel omitted here)
      (opinion) TILGHMAN C. J. The counsel for the plaintiffs admit the general maxim, that the right of survivorship is preferred to the last will by the common law; but they contend, 1st, that the law of Pennsylvania differs in this respect from the common law; and 2dly, even supposing that it were not so, yet under the circumstances of the case, a court of chancery would consider Patterson and Forrer as tenants in common, and therefore the verdict being right, there ought not to be a new trial, even though the judge might have stepped a little too far in stating the effect of the will as to the severance of the jointure.
      1. At the time of Patterson's death, we had no act of assembly expressly affecting an estate in joint-tenancy, although one has been made since, which has no operation on the present case. But reliance is placed on the act "concerning the probate of wills," &c., passed in 1705, by which it is enacted, that a will proved as therein directed, "shall be good and available in law, for the granting, conveying, and assuring of the lands or hereditaments, thereby given or devised, as well as of the goods and chattels, thereby bequeathed." The argument is, that the will operates as a grant or conveyance, and therefore severs the jointure. But I see nothing in the act to warrant this inference. The object of the law was, to enable all persons to dispose of their devisable lands by last will, but not to alter the nature of their estates. It was never supposed that a tenant in tail, might dispose of his lands by devise, so as to bar his issue. When a will takes effect, it operates as a species of conveyance; but a conveyance which does not take effect till after the death of the testator. But the rule of law being fixed, that at the instant of death the right of survivorship attaches, in preference to the will, the act of assembly does not embrace the case. This appears to be the plain construction of the act, and I have never before heard of any other. The plaintiffs' counsel has not produced the decisions of any court in support of his arguments.
      2. Whether the verdict is right, is not altogether clear. There certainly are cases in which equity will consider joint-tenants as tenants in common; and one of those cases is, where a purchase of land is made by two persons, with a view to expending large sums of money in the improvement of it. It is said that this purchase was made with a view to the erection of iron works. Perhaps it was. One of the witnesses said that he understood so; but he did not say when or from whom he got his information. A stronger circumstance appears in the articles of agreement for the purchase, previous to the conveyance. Part of the consideration was two tons of iron, to be made in the years 1794 and 5 (two years and more after the date of the articles). In confirmation of an intent to hold as tenants in common, the plaintiffs rely also on the deed from Forrer and wife, conveying the land to Douglass and others, in which it is recited, that Patterson "died seized in part of the said undivided 50 acres of land, having made his last will and testament, by which he authorized his executors to sell his lands, for the purposes mentioned in the said will." On the other hand it is said, that no iron works were erected, and that after the death of Patterson the defendant expended upwards of 4000 dollars in improvements on his private account. With regard to the recital in the defendant's deed to Douglass, he says that it was done to satisfy the purchaser, and not from any doubt of his own title. In this mixed kind of case, consisting of law and fact, it would have been proper for the court to inform the jury, that the will of itself could have no effect in severing the joint-tenancy, and then the material circumstances might have been laid before them, and the law explained, as applied to those circumstances. But it may be that the jury, understanding that the right of survivorship was defeated by the will, might not think themselves at liberty to inquire farther into the case. In order to afford an opportunity for such inquiry, I am of opinion that there should be a new trial.
      (opinion) YEATES J. after stating the case very fully, delivered his opinion to the same effect.
      The plaintiffs' counsel have insisted that a co-tenant may devise his interest in lands held in joint-tenancy by the laws of Pennsylvania. To prove this, it has been urged, that wills as to lands shall have the same force and effect as legal conveyances. Written wills proved by two witnesses, shall be available in law to convey and assure the lands devised in Pennsylvania under the old act of 1705, Sec. 1. But these provisions evidently presuppose an estate in the lands devised, capable of being passed by will. It will not be said, that because under the act of 16th January 1799 (3 Smith's Laws, 338), tenant in tail may bar the estate tail by deed acknowledged and recorded as the act specially points out, he may effect the same thing by his last will. Nor, if the real estate of the law was in unison with the plaintiffs' doctrine, could there be any necessity to enact the law "concerning joint-tenancy," on the 31st March 1812 (5 Smith's Laws, 395), whereby joint-tenancies in all cases, except trusts, are transmuted into tenancies in common. The distinguishing feature of joint-tenancy is, that it disqualifies the party from devising his interest. He holds under the original grant merely; and unless the joint-tenancy is severed during his life, the jus accrescendi arises as an inevitable consequence from the nature of the estate. This affords a sufficient answer to the argument deduced from Patterson's last will. Forrer in a legal view was no further responsible for assets, than as to the legal right of Patterson in the premises, and was put to no election by a devise to his wife of the one undivided ninth part of the residue. The recitals in his deed corresponded with the truth of the case in every particular; but it by no means appears that he sold under the authority in the will given to the executors or the survivor. Upon this head, the deed is at least equivocal.
      The unequal sums paid by Patterson and his widow and Forrer, cannot afford any just ground of exception from the general rule of law. If Forrer has paid a less sum than he was liable to pay under the terms of his original contract, he must necessarily be responsible to the estate of his father-in-law in some other mode of procedure. Upon this part of the subject it is of moment to state, that he has expended more than 1500 in valuable improvements on lands of which the plaintiffs mean to establish that one moiety belonged to Patterson, and was subject to the directions of his last will.
      This is not a mercantile case. It is not established clearly that the premises were bought as a forge seat. Certainly no partnership appears by the evidence to have been entered into for that purpose; nor were any erections made, or even meditated, for the accomplishment of that object.
      Upon the whole, I freely admit that the case bears hard on the children of Patterson. This in the nature of things is the case in all instances of estates in joint-tenancy, where the chance of survivorship is not perfectly equal, and where the prospect of families in life rests on the event. Joint-tenancies are seldom or never intended by the purchasers of lands. The law acts by general rules. Where such words are made use of in a deed, as the law will construe to be a joint-tenancy, legal consequences must necessarily flow therefrom, and we are bound to follow the results. If the joint-tenancy was not severed in the life time of Patterson, his will could not operate upon it, nor defeat the jus accrescendi.
      I am of opinion that the judgment of the Circuit Court be reversed, and a new trial be awarded.
      Judgment reversed.
 

"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Thomas Sergeant & Wm. Rawle, Jun.; 2nd edition, revised and corrected; ("Sergeant & Rawle") Vol.10 pgs.366 to 372 (California State Law Library, Sacramento, 1/2004)
      STILES against NELLY, a Mulatto; Supreme Court of Pennsylvania, Chambersburg District, Chambersburg; 10 Serg. & Rawle 366; October, 1823, Decided.
      In Error. Error to the Court of Common Pleas of Cumberland county, in a homine replegiando brought by Nelly, a mulatto, the plaintiff below, against Edward Stiles, the defendant below, in which judgment was entered for the plaintiff below, by consent of parties.
      The defendant below claimed Nelly as his servant till 28, under a transfer from Sarah E. Duncan, widow of John Duncan, deceased, who was the owner of Rachael, the mother of the said Nelly; and the question was, whether Rachael had been duly registered as a slave by the said John Duncan, pursuant to the act of assembly of the 29th March, 1788. On the 27th March, 1789, a paper was filed in the office of the clerk of Quarter Sessions of the county of Cumberland, in the following words and figures, to wit: "Negro Rachael, the property of John Duncan, born about the 15th November, 1780. Hannah, the property of Samuel Postlethwaite, born about the 19th May, 1782. Frank, the property of Samuel Postlethwaite, born about the 5th January, 1784. Sworn before John Agnew." (Indorsed.) "No. 34 and 36. 27th March, 1789, Duncan & Postlethwaite." The clerk then made the following entry in the book kept in his office for the recording of negro and mulatto slaves.
      (number), Owners, Townships, Occupation, Males, Females, When born, time ent.
      34, John Duncan, Carlisle, Merchant, (blank), Rachael, 15th Nov. 1780.
      36. Samuel Post'waite, Carlisle, Gent, Frank, (blank), 5th Jan. 1784.
      (MAD: arguments of counsel omitted here)
      (opinion) Edward Stiles the plaintiff in error claims the service of Nelly, the defendant in error, until she shall be of the age of 28 years. The cause depends on the registry of a negro woman named Rachael, (the mother of Nelly) entered in the book for recording of negroes and mulatto servants, and slaves in the county of Cumberland. The register contains every particular required by the law. Rachael is entered, as a female, born the 15th November, 1780, owned by John Duncan, of Carlisle, merchant. The oath of the owner was taken before the clerk of the sessions, the 27th March, 1789. But the writing delivered to the clerk by the owner, which was filed in the public office, differs from the register in several respects. In that writing, Rachael is said to have been born about the 15th November, 1780; and the occupation of the owner, (merchant) and the sex of Rachael, (female) are omitted. Several exceptions have been taken to this register.
      1. The time of birth is stated with too little precision -- "about the 15th November, 1780. In support of this exception, the case of the Commonwealth v. Greason, was cited, (4 Serg. & Rawle 425.) There the entry was of a child, born on or about the 23d of May last, and bore date 21st November, 1792. It was determined that the register was defective, because the act of 29th March, 1788, directs, that the entry should be made within six months after the birth of the child, and it was altogether uncertain, from this entry, whether it had been made within the six months. But the present case is quite different. It was not necessary that the register of Rachael, who was born before the 29th March, 1788, should be made within six months from her birth. On the contrary, it was not required by the act of 1st March, 1780, that she should be registered at all. But the act of 29th March, 1788, (sect. 4) directed that all persons possessed of children born after the 1st March, 1780, who would, by the said act, be liable to serve till the age of 28 years, should have them registered, on or before the 1st April, 1789; and that the owner should swear to their age, (to the best of his knowledge.) All that was necessary, therefore, was to show, that Rachael was born after the 1st March, 1780. Now surely, when it is sworn that she was born about the 15th November, 1780, it is asserted with sufficient certainty, that she was born after the 1st March, 1780. The act does not require that the oath should contain precise certainty; it would have been unjust to require it; because there was a period of six years, between the act of 1st March 1780, and that of 29th March, 1788. Therefore it is only required that the owner should swear to the best of his knowledge. The law is cautiously drawn with regard to this point, I am of opinion, it has been complied with.
      2d. The 2d exception is, that it does not appear, that the entry and oath were made by the owner of Rachael. I think it sufficiently appears although the entry was made in a confused manner. It mentions Rachael, the property of John Duncan; and two other negroes, the property of Samuel Postlethwaite; then came the words following, "sworn before John Agnew 27th March, 1789. Duncan and Postlethwaite." Now to make sense of this entry; it must be understood that Duncan and Postlethwaite, severally made oath to their own property. It was the fault of the clerk, that it does not appear so clearly as might be, by whom the oaths were taken. But we can make out his meaning, and that is enough.
      3d and 4th. The 3d and 4th exceptions are, that in the paper filed in the clerk's office, the sex of Rachael, and the occupation of John Duncan are omitted. This is very true, but they are both inserted in the record. There is not the least appearance of fraud or artifice in this transaction. The owner of a negro girl appears to have honestly intended to have her registered according to law, and the register itself is strict form. It in no manner contradicts the writing returned by the owner, but supplies its defects in two particulars. These defects were probably unknown when the writing was drawn, but being corrected in the register, the presumption is, that on their being pointed out to the owner he directed the clerk to insert them in the record before his oath was taken. This appears to me, to be the honesty and justice of the case. And the opinion of this court, in the case of Wilson v. Belinda, 3 Serg. & Rawle 396, warrants the construction which I have given to the register, connected with the written return of the owner. In that case, the word Esquire in the register, was connected with the return made by the owner, which was blank as to his occupation. It ought not to be presumed, that the clerk violated his duty which he would have done, if he had made a record different from that of John Duncan, without his orders. The return of the owner and the record of the clerk may be considered as simultaneous acts and forming one transaction. These are all the exceptions which have been made to this register. I am of opinion that none of them have been supported, and therefore the judgment of the Court of Common Pleas should be reversed, and judgment entered in this court for the plaintiff in error.
      Judgment affirmed.
 

"Reports of cases argued and determined in the Supreme court of Pennsylvania June 1833 to Sept. 1834" by Frederick Watts; 2nd edition; ("Watts") Vol.2 pgs.209 to 218 (California State Law Library, Sacramento, 1/2004; MAD's extract, most case citations omitted here)
      FOULK against BROWN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 2 Watts 209; May, 1834, Decided.
      Error to the common pleas of Cumberland county.
      Action of debt by Lewis Foulk, administrator of Isabella Foulk deceased, against Thompson Brown, executor of William Brown, Sen. deceased, to November term 1829. The following declaration was filed, and exhibits the plaintiff's cause of action, and the dates of the material facts which gave rise to the questions of law, except that Lewis Foulk presented a petition to the orphan's court in 1827, for a citation to Thompson Brown to settle his administration account.
      Cumberland county, ss. T. Brown, late of said county, executor of the last will of William Brown, Sen. deceased, was attached to answer L. Foulk, administrator of all, &c. of Isabella Foulk deceased, of a plea, that he render unto him 3749 dollars 65 cents, which to him he owes, and unjustly detains, &c.; and thereupon the said L. Foulk by, &c., complains, that whereas the said William Brown deceased, in his lifetime, viz. 3d of April 1802, at said county, made his last will and testament in writing, bearing date the same day and year, and thereby, among other things, did will, bequeath and direct, that after payment of his debts, funeral expenses and specific bequests, the residue of his cash and moneys arising from his bonds and other debts, and from the sales of his personal and real estates, be equally divided to and amongst his wife, M. Brown, and all his children, viz. his sons, Arthur, William, George and Thompson, and his daughters, Isabella (the plaintiff's intestate) and Lucy, saving only the difference occasioned by certain deductions, viz. the shares of his wife M., his son T. and his daughter L., to be equal and alike; his son A. to have 300 pounds less than either of them; William's share to be less than theirs by the sum of 200 pounds; George's to be less by the sum of 100 pounds; and the said Isabella's to be less than theirs by the sum of 250 pounds; and further, that by the said bequest to his wife, it was not his intention that she should have the absolute property in and disposal of the same; it being his meaning only that she should have the interest of the money during her natural life, and that the principal, or such part as may remain at her death, be divided, on her decease, equally amongst all his children, or their respective heirs, viz. his sons A., W., G. and T., and his daughters I. and L., share and share alike. And, of his said will, appointed the same Thompson Brown and William Brown and James Duncan the executors, as by the said will, &c. And the said Lewis, in fact, saith, that afterwards, viz. 18th of May 1802, at said county, the said William Brown, Sen., died, and the said Thompson Brown, William Brown, Jun. and James Duncan, then and there duly proved the said will, and took upon themselves the burthen of the execution thereof, and possessed themselves of the personal and real estate of the said testator, and proceeded to sell the goods and chattels, lands and tenements of the said testator, and received the prices thereof, and collected the moneys due to the said William Brown, Sen. at the time of his death. The said William Brown, Jun. has since died, and the said James Duncan has removed from and left the state of Pennsylvania, and has relinquished and abandoned the administration of the estate of the said testator. And the said Lewis further saith, M. Brown, the widow of the said testator, died on the 18th of May 1808, having received no part of the principal sum of the said legacy so bequeathed to her; and also that the said Isabella Foulk was the daughter of the said testator, and one of the legatees named in said will, and died on the 1st of January 1804; and letters of administration on her estate issued to the said Lewis on the 7th of May 1827. And the said Lewis further saith, that the said T. Brown, as such executor, did exhibit in the register's office of said county, his account of his administration of the estate of the said testator, which account was examined and passed by the said register, on the 12th of January 1828, and was allowed and confirmed, agreeably to law, by the orphan's court of said county, on the 13th of February 1828, by which account it appeared, that there was a balance of the assets of said testator, in the hands of the said Thompson, as such executor, amounting to 27,123 dollars 67 cents, which sum the said court then and there ordered and decreed to be distributed, according to the said will. And the said Lewis further avers, that the proportion and part thereof, so as aforesaid bequeathed to the said Isabella, and due and payable to him as her administrator, agreeably to the said will and decree, does amount to the aforesaid sum of 3749 dollars 65 cents, lawful money, together with interest thereon from the said 13th of February 1828, of all which the said Thompson, on the day and year last aforesaid, had notice; nevertheless, the said T., although often required so to do, hath not paid the said sum of 3749 dollars 65 cents, nor any part thereof, to the said Isabella, in her lifetime, nor to her said administrator since her death; but the same to pay hitherto hath refused, and still doth refuse, to the damage of the said Lewis 8000 dollars, and therefore he brings suit, &c."
      And, on the same day, rule of arbitration entered by plaintiff, under the arbitration law. On the 13th of January 1830, arbitrators were appointed by the parties, who reported, on the 10th of March 1830, that they did find for plaintiff 4215 dollars 85 cents, with costs, which was filed, and judgment nisi entered thereon, on the same day. On the 24th of March 1830, the following entry was made on the said docket of said suit. "I appeal from the award of arbitrators, rendered in this suit," signed, "Thompson Brown, executor of William Brown, Sen." 13th of April 1830, on motion of Mr Carothers, rule to show cause why the appeal entered by defendant should not be stricken off. 14th of May 1830, rule discharged by the court. The defendant pleaded payment with leave, and plaintiff replied non solvit and issue. 19th of January 1832, tried and verdict for defendant.
      The defendant's counsel rested their defence upon the lapse of time which had occurred from the time the legacy was payable, until suit was brought.
      In answer to this, the plaintiff said that the settlement in the orphan's court in 1828 was conclusive of his liability to pay; that there were items of charge in the account which were dated within twenty years from the commencement of the action; that there were items in it without date; and that the residuary bequest to the plaintiff's intestate was not payable until the death of the widow in 1808, and the citation to T. Brown was issued within twenty years from that time.
      The court below charged the jury that the settlement in the orphan's court was conclusive of every thing which it purported to settle, but not of liability to heirs:-- that if there were items of charge in the account received within twenty years from the commencement of this suit, the presumption of payment would not arise as to them. That the items without date were referable to the jury on the same grounds:-- that inasmuch as more than twenty years had elapsed from the death of the widow until this suit was brought, the presumption of payment did arise as to the legacy payable at her death.
      The jury rendered a verdict for the defendant.
      (MAD: arguments of counsel omitted here)
      The opinion of the Court was delivered by SERGEANT, J. -- The first error assigned is, that the court erred in sustaining the appeal of the defendant, entered without oath or bail. The appeal was entered in this manner under the proviso in the fourteenth section of the act of the 20th of March 1810, that where executors or administrators may be the party appellant, they shall have an appeal as is by law allowed in other cases. The construction of this proviso has been, that they may enter their appeal without oath, without payment of costs, and without recognizance in the nature of special bail. But the plaintiff contends that the proviso applies only where the executor is sued as such, and not where the claim is against him personally: and that this action for a portion of the residuary bequests under the will, is against the defendant personally, and not as executor. It is certain that a distinction prevails in many important respects, between suits brought by or against executors in their individual and their representative capacities. And if the suit were clearly against the defendant in the former character, there would be great reason why he should not be permitted to avail himself of the privilege of appealing without a compliance with the usual terms. It seems to have been thought in Durdon v. Gaskill, 2 Yeates 268, that an action for a legacy could not be brought against an executor individually; but in Clark v. Herring, 5 Binn. 33, it was decided that it might. The declaration in the latter case was a special assumpsit, alleging a promise to pay in consideration of assets having come to his hands. But in Morrow v. Brenizer, 2 Rawle 185, it was decided, that assumpsit for money had and received would lie against an executor personally for the plaintiff's share of a residuary bequest of personal estate, and proceeds of real estate, in conformity with Wilson v. Wilson, 3 Binn. 557, in which it was held, that assumpsit for money had and received lies against an executor in his individual capacity, for a share of personal estate undisposed of by will; still the plaintiff may sue the executor as such, and seek a recovery, in the first instance, de bonis testatoris, proceeding afterwards, on the return of nulla bona, to obtain an execution de bonis propriis, on the ground of a devastavit. It is not pretended that he is obliged to sue the defendant personally to recover a legacy. The action here is in debt. It is, in some respects, a charge against the executor in his individual capacity. It was commenced by capias, and special bail entered, and the declaration is in the debet and detinet. But in other material features, the suit is against the defendant as executor. The action is so entitled. The declaration in its commencement avers, that the defendant was attached as executor: it recites the will, and appointment of three executors, and accounts for the nonjoinder of the other two by alleging one to be dead, and the other absent from the state. After setting forth that assets had come to the defendant's hands as such executor, and the amount of the plaintiff's proportion, it omits to state that the defendant thereby became liable to pay. If the declaration were ambiguous, the construction ought to be against the party whose pleading it is -- more especially where such construction goes to preserve the trial by jury; on which account the court has always leaned towards a liberal construction in favour of an appeal in doubtful cases. I am, therefore, of opinion that, in this case, the defendant is within the privilege conferred by the proviso, and that the court below did right in sustaining the appeal.
      The counsel for the plaintiff prayed the court to charge the jury, that the decree of the orphan's court was conclusive. The answer of the court seems to me to define with accuracy the effect of such a decree. The orphan's court has not hitherto possessed jurisdiction to entertain a suit for a legacy, or to settle the accounts between the executor and the legatees, and, therefore, its decree could have no bearing on the question as to the amount due to the legatee. Its only effect is to show the balance of assets in the executor's hands after payment of debts and charges. The right to sue for a legacy is vested by the act of the 20th of March 1772, in the courts of common law, and to them is given power to appoint auditors to distribute the assets among the legatees, where they are insufficient to pay the whole of the debts and legacies. In this, therefore, there is no error.
      The third error assigned relates to the circumstances which went to repel the presumption of payment arising from length of time. The circumstances relied on by the defendant were various. They consisted of the citation and other proceedings in the orphan's court; the omission of dates on the administration account, made out and sworn to by the defendant; the long period during which there was no administration taken out on the estate of Isabella Foulk, the legatee; the receipt of part of the moneys claimed within less than twenty years before this suit was brought.
      It appears that the testator died in May 1802, and Isabella Foulk in 1804. The widow died in May 1808. The plaintiff took out letters of administration to his late wife, Isabella Foulk, on the 7th of May 1827; and, on the 8th of May 1827, presented a petition to the orphan's court for a citation to compel the defendant to settle his accounts; which were accordingly passed, and confirmed on the 13th of February 1828, finding a large balance against him as executor, and decreeing it to be distributed according to the will. The legacy was payable in May 1803, being one year after the testator's death.
      Legacies not being within the statute of limitations, fall within the rule of presumption. After a lapse of twenty years, bonds and other specialties, merchant's accounts, legacies, mortgages, judgments, and indeed all evidences of debt excepted out of the statute, are presumed to be paid. The court will not encourage the laches and indolence of parties, but will presume, after a great length of time, some composition or release to have been made. This length of time does not operate as a positive bar, but as furnishing evidence that the demand has been satisfied. But it is evidence from which, when not rebutted, the jury is bound to draw a conclusion, though the court cannot. Within the twenty years, the onus of proving payment lies on the defendant: after that time it devolves on the plaintiff to show the contrary, by such facts and circumstances as will satisfy the minds of the jury, that there were other reasons for the delay of the prosecution of the claim than the alleged payment. And if these facts are sufficient satisfactorily to account for the delay, then the presumption of payment, not being necessary to account for it, does not arise. Slighter circumstances are sufficient to repel the presumption than are required to take the case out of the statute of limitations; the latter being a positive enactment of the legislature, the former merely an inference on which legal belief is founded. The rule in regard to the statute of limitations, (a rule which applies to executors and administrators as well as others -- Gwill. B. Ab. 479; Willes 27) that when the time was begun to run, it suffers no interruption from the occurrence of circumstances that would otherwise prevent its application, does not, it is said, apply to the case of a legal presumption. 16 Johns. 214. Still the circumstances, whatever they may be, must account in some reasonable way for the lapse of time, without demand or suit. The party's ignorance of his right; his disability to sue during a portion of the time, owing to the prevalence of a war, and, it is said, a writ sued out against the party really liable, though not arrested, or an imperfect writ, if the party were arrested; absence from the country during the last twenty years; a demand without suit, and generally, any circumstance explaining satisfactorily why an earlier demand has not been made.
      The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined, until time has involved them in uncertainty and obscurity; and then ask for an inquiry. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away; and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age, and often regardless of them. Papers which our predecessors have carefully preserved, are often thrown aside, or scattered as useless by their successors. It has been truly said, that if families were compelled to preserve them, they would accumulate to a burthensome extent. Hence statutes of limitations have been enacted in all civilized communities; and, in cases not within them, prescription or presumption is called in as an indispensable auxiliary to the administration of justice. Courts of equity consider it mischievous to encourage claims founded on transactions that took place at a remote period. It therefore grants no relief after a great length of time. In a word, the most solemn muniments are presumed to exist, in order to support long possession; the most solemn of human obligations lose their binding efficacy, and are presumed to be discharged, after a lapse of many years.
      In the present case, twenty-five years and upwards had elapsed from the time when the legacy was by law payable, viz. May 1803 to the institution of this suit in October 1829. The circumstances relied on by the plaintiff to prevent the raising of this presumption are various, and it is in respect to these that the opinion of the court below is excepted to.
      The first circumstances are the settlement of the administration account in February 1828, and the citation and other proceedings in the orphan's court. The mere settlement of the administration would not be an admission that the legacy was not paid. The executor may have paid all the bequests, and yet be compellable to settle an account. That is a duty imposed by law, which any one possessing the character of legatee, or party in interest, has a right to enforce. The orphan's court, on application for process to compel such settlement, could not inquire whether the legacy had been paid or not. It was declared by this court, in McLean v. Finley, 2 Pen. & W. 97, 100, that filing such account would not tend to repel the presumption; because it does not, in any way, admit a liability to distributees; nor, for the same reasons, does it as to legatees. Connected with the citation, however, the proceeding is of a different character. A citation is a process to enforce the payment of the bequest. It is true the party may, under the legacy act, sue in a court of common law, and recover his proportion of the residuary bequest. But the usual, and perhaps most convenient way is, first to ascertain by a settlement in the orphan's court the amount in the executor's hands, and then bring an action for the plaintiff's proportion; and therefore, the citation within twenty years to settle such account, duly prosecuted, is a claim by legal proceeding, and a bar to the presumption. Lapse of time shall not prejudice a person who has title, while seeking a discovery of that title from persons in possession of the evidences of it. If this citation had been taken out by the legatee within twenty years from the time at which the bequest was payable, it would be sufficient. That, however, was not the case, except as to the sum payable after the widow's death; and therefore, as to all but that, is of no avail.
      The second circumstance relied on, is the omission of dates in the administration account, as made out and sworn to by the defendant. This is not a fact from which we can infer any thing. The court below say very properly, that if there were objections to this form, they should have been made when the account was presented and investigated. We are not now inquiring into suppression or fraud, nor are we to presume them: we must judge from the account as it is; and the absence of dates furnishes no fact from which a conclusion can be drawn for or against the payment.
      The third circumstance relied on by the plaintiff, is the want of administration being taken upon the estate of Isabella Foulk. From the death of Isabella Foulk in 1804, to the year 1827, a period of about twenty-three years elapsed, during which there was no administration to her estate, and it is insisted that this is a circumstance to repel the presumption of payment. But it is to be observed that the bequest was to the plaintiff's wife, and the legacy was therefore, in effect, his property. He was entitled, during her lifetime, to demand and receive it, and if not paid, to sue for and recover it. The case is clear, for that period, of any circumstance that operates to rebut the presumption. Then, on the death of the wife and his survivorship, he acquired, by the statute of distributions, the right to her choses in action as next of kin, and this legacy, if not previously discharged, devolved to him, as his absolute and indefeasible property; so much so, that he might receive it from the executor, bequeath it by will, or, if he died intestate, it would pass to his representatives and not to his wife's. He had the sole right to administer to his wife: every other person was excluded by the express provisions of the act of assembly of the 21st of March 1772. Now although it is true that in order to sustain a suit for this legacy, after his wife's death, the plaintiff would have been obliged to take out letters of administration, yet that was a ceremony at all times in his own power to resort to. He had but to ask, and would have received them as a matter of course. His disability to sue was a voluntary one. How then can he set up his own laches and indolence in this respect; or how does it show that he was not paid? If the legacy was due, it was a great benefit, and we cannot suppose a person would neglect to receive it, or if not paid would omit to qualify himself to sue for it, unless it had been discharged in some way or other. It is not like the case of an ordinary administration. There no one is qualified to demand the property of the intestate without letters of administration. If the nearest of kin will not take them out, another may; or even in some cases a creditor. It is uncertain till letters are granted, who will be clothed with the right. When appointed, the administrator is not, generally speaking, the person entitled exclusively to the estate, but merely a trustee for those interested. So in the case of executors, though they are designated, and may do many acts before probate, yet they are not ordinarily the owners of the estate, and it is uncertain whether they will act. I am therefore of opinion, that the want of administration is not a circumstance operating in favour of the plaintiff to repel the presumption arising from the lapse of time; and that there is no error in the charge of the court below to that effect.
      The receipt of part of the moneys charged within less than twenty years before suit brought. The court below instructed the jury that this was sufficient to repel the presumption as to the part thus received, but could have no operation on moneys before received by the executors, and which they ought to have paid over. In this I can perceive no error. It cannot be justly pretended that the presumption begins only with the date of the last receipt of money by the executor; for he is bound to pay over the money as received amongst the legatees, I mean where it is not wanted to pay debts. The presumption begins from the time the right accrues; from the time the executor ought to pay, and the legatee is entitled to receive. What amount was received within the twenty years, is uncertain on the accounts. It would seem likely that some portion was. In relation to that, the presumption would not arise; but it would as to the receipts, more than twenty years back.
      With regard, however, to such portion of the residuary bequest as was not payable till after the widow's death, no presumption can arise except from that period. That event occurred in 1808. From 1808 to 1827, when the citation issued, only nineteen years elapsed; and a period short of twenty years is not sufficient. This portion the court ought to have distinguished from the main bequest, and as to this, we think there was error in the charge of the court, and that the judgment ought to be reversed.
      Judgment reversed, and a venire facias de novo awarded.
 

Go to the Cumberland Co. PA Court Records Part 2
      EGE v. SIDLE et al; Supreme Court of Pennsylvania; 3 Pa. 115; June 11, 1846, Decided. Harrisburg, May term 1846.
      WILSON v. McCULLOUGH; Supreme Court of Pennsylvania; 19 Pa. 77; July 20, 1852, Decided.

Go to the Cumberland Co. PA Court Records Part 3
      HARPER against BLEAN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 3 Watts 471; May, 1835, Decided.
      WILSON v. McCULLOUGH; Supreme Court of Pennsylvania; 23 Pa. 440; July, 1854, Decided.
      MAHON v. DUNCAN; Supreme Court of Pennsylvania; 13 Pa. 459; May, 1850, Decided.
      McCUNE'S Appeal; Supreme Court of Pennsylvania, Harrisburg; 65 Pa. 450; May 11, 1870, Argued; May 26, 1870, Decided.
 

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