Hemphill v. Pry

• Decision Date: 03 January 1898
• Docket Number: 73
• Citation: 183 Pa. 593,38 A. 1020
• Parties: John Hemphill v. D. M. Pry, Executor of the Will of J. T. Fredericks, deceased, William H. Fredericks, W. J. Fredericks and Sarah F. Marks, terre-tenants, Appellants
• Court: Pennsylvania Supreme Court

38 A. 1020

183 Pa. 593

John Hemphill v. D. M. Pry, Executor of the Will of J. T. Fredericks, deceased, William H. Fredericks, W. J. Fredericks and Sarah F. Marks, terre-tenants, Appellants

No. 73

Supreme Court of Pennsylvania

January 3, 1898

Argued October 19, 1897

Appeal, No. 73, Oct. T., 1897, by defendants, from judgment of C.P. Washington County, May Term, 1896, No. 122, on verdict for plaintiff. Reversed.

Scire facias sur mortgage. Before TAYLOR, J.

At the trial it appeared that J. T. Fredericks died on July 21 1886, indebted to Margaret Hemphill upon two promissory notes not under seal, for $1,000 each. One of the notes was dated April 1, 1884, at twelve months, and the other September 1 1885, at one year. These were the only debts of the testator. No suit was ever brought or judgment obtained on the notes.

Testator directed by his will, inter alia, as follows:

"Second. I direct that all my honest debts be paid as soon after my decease as convenient.

"Third . . . I further direct that all my real and personal property be sold and converted into money except my household goods my wife Mary desires for her own use, excepting my library, which I direct shall be equally divided between my three sons.

"I hereby grant unto my executors the term of five years in which to make sale of my estate as aforesaid, using said time as in the judgment of my executors and family may be deemed best in the interest of my estate. . . ."

Testator left to survive him a widow and four children. On March 1, 1895, under an order of the orphans' court, the mortgage in suit was executed by the executor of the will of J. T. Fredericks to secure the notes given to Margaret Hemphill. There was evidence that interest had been paid upon the notes by the executor with the knowledge and consent of the widow and children within six years of the date of the mortgage.

Two of the children, however, John B. and David P., were minors at the time of the alleged knowledge and consent, and after they reached their majority on December 15, 1894, they conveyed their interest to W. H. Fredericks, one of the appellants.

The court charged in part as follows:

On July 21, 1886, the Rev. J. T. Fredericks, of Burgettstown, in this county, died seized of some real estate which has been described in your hearing. He left a will, and to survive him a widow and four children. In his will he nominated, constituted and appointed one D. M. Pry the sole executor thereof, and the will has been read in your hearing. One of the provisions of it was, that his executor therein named had five years in which to settle up his estate, either by the sale of his property, or in any manner that would be a final settlement of it according to law. We take that provision of the will to mean this, that for the period of five years after Mr. Fredericks' death no one could force the executor to file an account or settle his estate; and nothing was done by way of a settlement except the payment of the funeral expenses, perhaps, and some little indebtedness that existed, during that five years, and the reason was given to you by Mr. Pry upon the stand that during that period and afterwards, owing to the depressed condition of the real estate market, it was deemed best by all parties concerned, that is, the widow, who then lived, and the four children, in connection with the sole and only creditor of the estate at that time, Mr. Hemphill, the plaintiff here, that the period given by Mr. Fredericks in his will to his executor to settle his estate should be extended after the expiration of the five years, and that the plaintiff would not demand payment of his claim. That is, the plaintiff in this suit, Mr. Hemphill, who then, it is shown, had two notes given by Rev. J. T. Fredericks, which were given by Mr. Fredericks in his lifetime (and the correctness of that is not denied in this case), was the sole and only creditor of the estate at the time that this five year period expired; that it was acceptable to the heirs and the widow, and to Mr. Hemphill, who did not need his money except the interest, that his notes should still continue unpaid, there being no personal assets on hand to discharge the debt, and none of this land, which we hold by law, under the will (having passed upon that before) was a conversion, -- that none of this land should be sold to discharge this debt of Mr. Hemphill's, owing, as Mr. Pry says, to the depressed condition of the market, and that he would not enforce payment of the principal at that time, and all he desired was the interest payable on these notes as it became due; that the widow and all the heirs, Mr. Pry says, in connection with himself, agreed to this arrangement for these reasons, of weight to both parties, and that Mr. Hemphill, who was the creditor, also agreed to it. The recollection of the court is, -- but that is one question of fact, gentlemen, for you to find from the evidence, -- that Mr. Pry said that he had a conversation with various members of the family of Mr. Fredericks, the widow and children, at different times in person, and those of the children with whom he did not talk in person, he communicated with by persons and letters about it, and had received word from them that this arrangement was satisfactory to them, and that no property should be sold, and that Mr. Hemphill's debt was to continue, rather than sell land, by the payment of the annual interest as it became due. That was done up until March 1, 1895, I believe, when this debt was merged into the mortgage by Mr. Pry, the executor, coming into this court on petition and asking leave of the court at that time to mortgage this land for the payment of Mr. Hemphill's debt of $2,000; the court granted leave to the executor to do that, and this land, a portion of it, such as was necessary, was mortgaged under the direction of the court for the purpose of the executor receiving the money and paying off this indebtedness of the plaintiff. Of course exceptions were taken by the counsel for the defense here as to the jurisdiction of the court to authorize this mortgage, as you have heard here, but that is purely a question of law for the court with which the jury has nothing to do. [The court passed upon that at a former trial and has taken the position that the act of 1834, under which the defendants in this case claim that the executor had no authority, does not apply to this case under the facts of this case; but a question for your determination is, whether or not you believe the statute of limitations pleaded here (which is a question of fact and must be found by the jury) would operate as a bar to the recovery of the plaintiff for the amount of his unpaid mortgage with the interest to this date.]

Now, the first indebtedness to the plaintiff existed by these two notes which have been described in your hearing, and offered in evidence here, both of which are shown not to be under seal; they are old notes, -- they were given by Mr. Fredericks in his lifetime; that they were not barred by the statute of limitations at the time of the maker's death, and that they were valid, subsisting indebtedness at that time against his estate, and have never been paid except by this mortgage now sued upon, we do not understand to be gainsaid; but after his death the statute of limitations would begin to run against them, under the act of 1713, I believe it is, which bars recovery upon evidences of indebtedness of this kind at the end of six years, if no payments were made on them, or either of them, or no new promise to pay made to take them out of the statute of limitations. The notes as they stand themselves on the face of each, without any answer to them, and as the defense have introduced them in evidence, would be barred by the statute of limitations before this mortgage which took them up, was given; but, gentlemen, Mr. Pry, the executor, and Mr. Hemphill, the plaintiff in this suit, both witnesses in the case, say that the interest was paid on them each year, I think, as it fell due, after Mr. Fredericks' death, and Mr Hemphill says that he received the interest from the executor, and it was paid and received under this arrangement or agreement that was made with the widow and himself and the heirs in the manner in which Mr. Pry testified it was made, -- if you find that to be the fact, -- that the interest was paid on both of these notes up until March 1, 1895, when Mr. Pry, as executor, made his application to this court to sell; that the creditor agreed to wait if they paid the interest on these notes, and they agreed to pay the interest and actually did pay it, -- if you find that to be the facts in the case, as testified to, then the bar of the statute has been tolled by the payment of the interest upon these notes to the executor, and by him to the creditor of the estate, if you further find it was under an arrangement or agreement with the widow and heirs, including all of them and all the parties in interest that had any right or interest in this estate. [14]

Now, one of these defendants here introduced an article of agreement in evidence by which he takes the interest, by purchase, of two of these heirs. There is some reference made in that to this Hemphill indebtedness, perhaps not the full amount of it --

Defendants' That is a different judgment, your honor.

By the Court: I may not remember as to that, but I heard it read as the Hemphill indebtedness, and it appears that it is another Hemphill, not the plaintiff, referred...