Smith v. Carroll , 112 Pa. 390 ( 1886 )

Mr. Justice Green

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 implied in the allegation of an existing devastavit. There was no express promise to pay on any such ground, and the case of Wilson v. Long, 12 S. & R., 59, very clearly determines that no implied contract to pay arises out of a devastavit. This would be decisive of the case on grounds independent of the statute. But suppose the promise rested on this ground expressly. It would be a promise by the administrator to answer ‘ the damage out of his own estate,’ for ‘ the debt of another,’ and this would certainly be within the statute and not binding for want of a writing to that effect.” It is clear, therefore, that upon the theory of a devastavit there could be no liability upon an implied promise, and an expressed promise would create no personal liability without a writing. In the following cases it was held that the existence of assets, when coupled witli a verbal promise only, was not sufficient to impose an individual liability. In Okeson’s Appeal, 9 P. F. S., on p. 101, Shabswood, J., said: “The cases appear to hold that on a promise by an executor or administrator to pay a legacy or distributive share in consideration of assets, the consideration and promise must be co-extensive: Rann v. Hughes, 7 T. R., 350, note: Butt v. Humphrey, 22 Conn., 317. However that may be, it is clear that the executor can not be made liable de honis propriis on an oral promise on the mere consideration of assets. That would be' “to charge him upon a promise to answer damages out of his own estate, and therefore within, the Act of April 26th, 1855: Pamph. L., 308. It has been accordingly held in Hay v. Green, 12 Cush., 282, that a verbal promise by an administrator to pay a distributive share in the estate of a decedent was within the statute of frauds, though there were assets; and in Philpot v. Briant, 7 Bingh, 717, a promise by the executor of-an acceptor of a bill of exchange to pay out of his own estate in consideration of forbearance, is held to be void if not in writing.”

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 should be disposed of in legacies to his daughters, and he directed that his son Owen should pay, not to the 'daughters, but to his estate, five hundred dollars to enable-the executors to pay the legacies. But he had previously directed his executors to pay his debts and funeral expenses,.and all the personal estate, including the money paid by Owen, was not sufficient for that purpose. Doubtless the testator supposed that the money to be paid by Owen, together with the other personal estate, would enable the executors to pay both the debts and legacies, but in this he was mistaken, and that is the plaintiffs’ misfortune. The legacies were not charged upon Owen’s land, nor was he directed to pay the money to the daughters. Even the executor was not so directed. The money was to be paid to him simply to enable him to pay the legacies. The superior duty, however, of paying the debts must first be performed, and the personal fund, no matter how constituted, must first be applied to that purpose, in the absence of specific directions to the contrary.

These considerations render unnecessary any examination of the other assignments of error.

Judgment reversed.