Bear's Estate

• Decision Date: 04 February 1869
• Parties: Bear's Estate.
• Court: Pennsylvania Supreme Court

60 Pa. 430

Bear's Estate.

Supreme Court of Pennsylvania.

January 23, 1869.

February 4, 1869.

January 23d 1869.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. READ, J., absent. WILLIAMS, J., at Nisi Prius.

Appeal from the Orphans' Court of Chester county: No. 291, to January Term 1869.

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George F. Smith and P. Frazer Smith (with whom was R. E. Monaghan), for appellants, cited Act of April 11th 1848, § 8, Purd. 700, pl. 13; Murray v. Keyes, 11 Casey 384; Mahon v. Gormley, 12 Harris 80; Bear v. Bear, 9 Casey 525; Williams v. Coward, 1 Grant 21; Franklin v. Rush, 1 Phil. R. 571; Manifold's Estate, 5 W & S. 340; Chew's Appeal, 9 Wright 230; Parke v. Kleeber, 1 Id. 250.

Stat. 13 Eliz. ch. 5; Roberts' Dig. 395; Purd. 1025, Act of July 12th 1842, Purd. 36 pl. 52; Act of June 13th 1836, Pamph. L. 739; Act of March 31th 1860, Purd. 239, pl. 139; Covanhovan v. Hart, 9 Harris 500; Passmore v. Eldridge, 12 S. & R. 198; Geiger v. Welsh, 1 Rawle 353; McCulloch v. Hutchinson, 7 Watts 434; Twyne's Case, 3 Reports 80 (1 Sm. Lead. Cases 2 and notes); Cadogan v. Kennett, Cowp. 432; Roberts on Fraudulent Conveyances 490; Drum v. Painter, 3 Casey 150; Wilt v. Franklin, 1 Binn. 523; Moyer v. Schick, 3 Barr 247; Bunn v. Ahl, 5 Casey 391; McKee v. Gilchrist, 3 Watts 233, 234; Whiting v. Johnson, 11 S. & R. 329; Kepner v. Burkhart, 5 Barr 478; Zerbe v. Miller, 4 Harris 497; Mateer v. Hissim, 3 Penna. R. 164.

W. Darlington, for Jonas Chamberlain, appellee.

Joseph Hemphill, Jr., for McCanna & Laverty, appellees.

The opinion of the court was delivered, February 4th 1869, by AGNEW, J.

The claim in this case against the estate of Louisa Bear arose upon a distribution in the Orphans' Court, and not in an action to recover the sum. We have therefore no question of pleading or of averment to meet. All that is required is that the claims shall be one for necessaries for the support and maintenance of her family — that they were contracted for by her or in her name by some one authorized by her to do so, and that her husband was insolvent: 11 Casey 384; 1 Wright 251. The auditor has found these facts. It is true he says for necessaries, omitting to say for the support and maintenance of her family; but on referring to the testimony brought up by the appellants, it clearly shows that the amount was for articles used in the maintenance of the family. Nor is it less clear to our minds upon a just construction of Martin Bear's testimony that the debt was contracted for these necessaries, in her name and by her authority. This assignment of error is not supported.

We think the other branch of the case was also well decided. There is no doubt that the assignment of Martin Bear to Jonas Chamberlain of his interest in the residue of his wife's estate was made upon a valuable consideration and for a full price. But it is supposed that the communication of Bear's expectation that if he kept it, his interest would be attached by other creditors, and that something would have to be done to save it from attachment, is such a fraud on part of both that the assignment is vitiated by it. The auditor finds as a fact that there was no fraudulent purpose on part of Chamberlain, and that his purpose was to be secured in a debt which Bear owed him. We are not able to say that the testimony proves that this was a clear mistake on part of the auditor and of the court who confirmed his report. Chamberlain had a motive entirely adequate; to wit, the preservation of his own debt against Bear, who was insolvent. Fraud is not to be presumed without satisfactory proof of its existence; which can scarcely be affirmed, where a proper motive exists, which might have been as readily...