Heilig v. Heilig , 28 Pa. Super. 396 ( 1905 )

Opinion by

Henderson, J.,

The mortgage sued upon was given by the defendants to Elizabeth Heilig and Jacob R. Heilig, her husband, to secure the payment of 11,200, which sum was to be paid, without interest, five years- after the death of Elizabeth and Jacob R. Heilig, “share and share alike, to the legal heirs of the said Elizabeth and Jacob R. Heilig,” and was regularly recorded. The execution and recording of it are prima facie evidence of delivery: Kille v. Ege et al., 79 Pa. 15; Ingles v. Ingles, 150 Pa. 397. The persons beneficially interested in the mortgage were the “ legal heirs of the said Elizabeth Heilig and Jacob R.. Heilig.” No provision was made for payment of principal or interest to Elizabeth or Jacob R. Heilig. If the term ‘•‘legal heirs” describes and identifies persons capable of taking under the mortgage, the relation of Elizabeth and Jacob R. Heilig to the fund secured is that of trustees merely. As mortgagees they were trustees for the persons to whom the debt was to be paid at the time it became due. The mortgage being under seal imports a consideration which is applicable to all of its covenants. If there are persons other than the mortgagees beneficially interested they are the only ones who .can enforce performance of the covenant to pay, or release, or satisfy. No action was required on the part of the mortgagees. The material question then is, did the plaintiffs acquire an interest under the terms of the mortgage ? At the time of the execution of the instrument, Elizabeth and Jacob' R. Heilig had six children, all of whom survive them, and five of whom are plaintiffs in this action. Taking into consideration the fact that the property is personal, the term “ legal heirs ” of persons then living should be taken in its popular sense. So understood the language of the mortgage indicates that the persons intended to be made payees were the children of the mortgagees. The intention was to make a present gift of an obligation payable in the future. The children would have been the distributees of the mortgagees under the statute of distribution: Evans’s Estate, 155 Pa. 646; Masonic Aid Association v. Jones, 154 Pa. 99; Flint v. Steadman, 36 Vt. 210; Love v. Francis, 63 Mich. 181. (20 N. W. Repr. 843.)

In the view which we take, of this transaction it amounted to a gift inter vivos of the sum named in the mortgage, the title to which vested immediately in the children of the mortgagees. By placing the mortgage on' record such a delivery was made as in the nature of the case was practicable, and the children alone have legal standing to enforce payment of the debt. On the ground of implied benefit, the assent of the donees will be presumed, though they may have been ignorant of the transaction, and will continue unless rejected by them: Tarr v. Robinson, 158 Pa. 60.

The mortgagors and mortgagees evidently intended at the time of the execution of the mortgage to create a valid obligation on the part of the mortgagors, by the terms of which payment should be made after the death of the mortgagees to the persons described. The personal estate included in the mortgage was thus fixed in the beneficiaries as a gift, and it was not in the power of the trustees to recall or impeach it.. The principle involved was discussed in McClaughry v. McClaughry, 121 Pa. 477. See also Greenfield’s Estate, 14 Pa. 489, where the exclusive right of the beneficiary in the mortgage was clearly recognized. As between the plaintiffs and defendants the obligation is direct and for a valuable consideration. It is-not the case of a promise to make a gift, or the use of words in prsesenti unaccompanied by delivery. No further action was required by the mortgagors or mortgagees or the beneficiaries until the time of payment should arrive. No action could be prosecuted on the mortgage during the lives of the mortgagees as nothing was payable thereon during that period. The case of Love v. Francis, 63 Mich. 181, (29 N. W. Repr. 843) is like this in all of its essential features. It was there held that a note payable to the heirs of the obligee four years after his decease, secured by a mortgage with like conditions as to payment, constituted a valid gift to the heirs ; that the term “ heirs ” referred to a class of persons then in being and bearing the relation to him which would constitute them his legal heirs at his death, and that by placing the mortgage on record he had made a sufficient delivery of the thing given.

As we have already seen, the recording of the mortgage raises a presumption of delivery, and considering the number of persons beneficially interested, perhaps the only delivery of which the subject was susceptible.

The covenant to pay was for the benefit of the children of Elizabeth and Jacob R. Heilig. They were therefore the only persons who could receive payment and satisfy the mortgage. Having no interest in the fund, Jacob R. Heilig had no authority, either individually or as administrator of his wife’s estate, to release the obligation which the defendants had created.

We are unable to agree with the conclusion of the learned trial judge that the action cannot be maintained because the mortgage was testamentary in character and therefore revocable. The instrument sued upon is not the deed of the mortgagees. They did not execute any testamentaxy writing or instrument disposing of their property to become operative after their death. The instrument sued upon recognizes the existence of a debt arising out of a valuable consideration payable to other persons than the mortgagees. It is a matter of no consequence that the consideration may have moved from the mortgagees to the mortgagors. The covenants for payment existed between the mortgagors and the children of the mortgagees. If any hardship to the terre-tenant exists, he has no one but himself to blame. The record of the mortgage showed that the mortgagee had no interest in the fund, and therefore that his receipt or release would be ineffective to discharge the land from the,burden of the lien.

The judgment is reversed and a venire facias de novo awarded.