Kirk v. Carr

• Decision Date: 04 March 1867
• Citation: 54 Pa. 285
• Parties: Kirk <I>versus</I> Carr.
• Court: Pennsylvania Supreme Court

54 Pa. 285

Kirk versus Carr.

Supreme Court of Pennsylvania.

February 12, 1867.

March 4, 1867.

February 12th 1867.

Before WOODWARD, C. J., THOMPSON, STRONG and READ, JJ. AGNEW, J., at Nisi Prius

Certificate from Nisi Prius, where it was an action of ejectment by George Kirk, surviving executor, &c., of Rachel Dougherty, deceased, against Samuel Carr and others, for seven-twelfths of a lot of ground in Philadelphia.

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T. H. Speakman and E. S. Miller, for plaintiffs in error, cited Act of February 24th 1834, §§ 12, 13, Purd. 282, pl. 61, 62, Pamph. L. 75; Boshart v. Evans, 5 Whart. 561; Wms. on Ex'rs. 580; Haus v. Palmer, 9 Harris 300; Shinn v. Holmes, 1 Casey 144; Holliday v. Ward, 7 Harris 490; Jayne v. Price, 5 Taunt. 326.

C. Guillou, for defendants in error.

The opinion of the court was delivered, March 4th 1867, by THOMPSON, J.

The 12th and 13th sections of the Act of 24th February 1834, relating to executors and administrators, were compiled or copied from the 1st section of the Act of 12th of March 1800. That act provided for sales to be made by executors under a naked authority in a will, and also when a sale was directed without any designation by whom or by what authority. Following this declaration of power to the executors, they are by the act authorized to institute actions for the recovery of the possession of the land directed to be sold, and actions for trespasses committed thereon. Their title to sue was thus declared to be ample. The revisers of the civil code, in their report on these sections, speak of no alterations intended by them in the law, but the qualification added in the 12th section, that the powers contained in any will where there was merely a direction to sell, without designating the person or persons by whom it should be executed, was to be exercised under the authority of the Orphans' Court. This was the only change proposed by them to be made in the law. They must have intended, therefore, that the executors should, as theretofore, be possessed of full authority to maintain ejectments for the land which they were authorized to sell. In fact, they could not effectually exercise the power without this right. They could not sell what they could not control and deliver the possession of, at least not without sacrificing it. That the executor might maintain an action is not denied by the plaintiff in error; but it is contended that it could only be done under the authority of the Orphans' Court. That is a clear mistake of the meaning of the law. It is only the powers contained in the will which are to be executed under the authority of the Orphans' Court, not those necessary to the execution of the power, and not in the will, such as bringing suit. This will says nothing about that, and therefore it is left to the executor as part of his duty preparatory to executing the power under the authority of the court. We think the right of the executor to maintain the ejectment in this case was conferred by the 13th section, which ought to be construed and taken as applicable to the case of a sale under the circumstances mentioned in the 12th section; that was undoubtedly intended. If not, the provision of the Act of 1800 in this particular was not respected. But it is not necessary to insist on this. We think both classes of cases stand in the same mischief, namely, the necessity for authority in the executor to maintain suit, and the remedy provided must have been intended for both, the language not excluding either. The charge was correct, therefore, in holding that the executor could bring suit for the recovery of the property, if the will under which he acted was valid.

The second question in the order of the discussion at bar was, whether the prima facies of the validity of the will of Rachel Dougherty which has been admitted to probate by the register, was overcome by the proof at the trial. Instead of relying on the probate, and giving the will thus proved in evidence, and waiting until it was assailed by the other side, the plaintiff produced the subscribing witnesses to show its execution, independently of the probate. One of them testified to all that was necessary to establish it as a valid will; the other could not recollect a material element in the execution, viz.; whether the testator had requested a bystander, Ezekiel Norman, to sign her name to it for her. He recognised his own signature to it as a witness, but the circumstance attending the placing the testator's name to it by another he could not recall.

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