In re Abbott's Estate
Decision Date | 11 March 1901 |
Docket Number | 215 |
Citation | 48 A. 435,198 Pa. 493 |
Parties | Abbott's Estate |
Court | Pennsylvania Supreme Court |
Argued January 11, 1901
Appeal, No. 215, Jan. T., 1900, by John Y. Huber, from decree of O.C. Phila. Co., Jan. T., 1900, No. 145, overruling exceptions to adjudication in the estate of Elizabeth E Abbott, deceased. Affirmed.
Exceptions to adjudication.
The auditing judge, HANNA, P.J., found the facts to be as follows:
A claim was presented by Mr. Pennewill and Mr. Bright for John Y Huber, to recover the sum of $14,946.33, with interest thereon from November 6, 1899, being the balance due upon testatrix's bond and mortgage dated December 26, 1894.
The claim was objected to by accountants and counsel for the legatees.
From the evidence it appeared that the testatrix in her lifetime was the owner in fee of a certain mansion house and land surrounding it, situate in this city, and known as "Abbottsford."
On December 26, 1894, she with her husband executed a mortgage upon said real estate to the claimant for the sum of $27,710.64 payable at the expiration of five years or sooner at the option of the mortgagors, with interest at five per cent per annum.
On the same day, testatrix and her husband executed their joint bond to the claimant, but without any warrant of attorney accompanying it, in the sum of $55,421.28 conditioned for the payment by the obligors, their heirs, executors or administrators, or any of them, of the sum of $27,710.64, at the expiration of five years from the date thereof.
It was further provided therein, inter alia, "It is hereby agreed that any judgment entered by virtue of this bond shall be restricted in its lien operation and effect to the premises described in a certain mortgage bearing even date herewith given by said obligors to the said obligee."
The interest upon said mortgage, however, seems not to have been promptly paid, and by its terms and conditions, the principal thereof became demandable.
A scire facias was accordingly issued upon said mortgage on August 2 1895. Defense was made thereto by Mrs. Abbott, but before the litigation was determined she died. Her administrators c.t.a. were suggested of record. On January 9, 1899, upon a trial before a jury, a verdict was rendered in favor of the mortgagee for $32,000. Judgment was entered thereon, and finally the real estate was sold by the high sheriff and purchased by the mortgagee for the sum of $20,000 and a deed executed to him by the sheriff on December 30, 1899.
This, however, did not discharge the debt due the mortgagee. There still remains due the sum of $14,946.33, with interest from November 6, 1899, and which it is now claimed he is entitled to recover out of the general estate of testatrix, as a debt due and payable by her.
The auditing judge disallowed the claim.
Exceptions to the adjudication were dismissed in an opinion by ASHMAN, J.
Error assigned was in dismissing exceptions to adjudication.
The decree is affirmed at the cost of the appellant.
O. Percy Bright, with him Walton Pennewill, for appellant. -- The appellant contends, that by the proviso in the bond, the intention of the parties is clearly expressed, to limit the general power of the judgment only in one particular, viz: as to its lien, which is to be confined to the premises described. In all other respects the judgment is to retain its usual power and attributes, so that the obligor still remains personally liable on the bond, and her property subject to seizure and sale under execution issued upon judgment recovered on the bond: White v. Smith, 33 Pa. 186; McMurray v. Hopper, 43 Pa. 468.
Rudolph M. Schick, with him Charles R. Maguire, for appellees. -- A provision such as contained in the bond, when the intent is manifested, will be enforced by the courts: Irvin v. Shoemaker, 8 W. & S. 75; Hoopes v. Beale, 90 Pa. 82; Lane v. Smith, 103 Pa. 415; Hoeveler v. Mugele, 66 Pa. 348; Schweyer v. Walbert, 190 Pa. 334.
Such an intent is manifested in this provision in the case at bar. If the provision were that the...
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