Krewson v. Sawyer

• Decision Date: 02 February 1920
• Docket Number: 20
• Citation: 266 Pa. 284,109 A. 798
• Parties: Krewson, Executrix, Appellant, v. Sawyer et al., Executors
• Court: Pennsylvania Supreme Court

109 A. 798

266 Pa. 284

Krewson, Executrix, Appellant, v. Sawyer et al., Executors

No. 20

Supreme Court of Pennsylvania

February 2, 1920

Argued January 6, 1920

Appeal, No. 20, Jan. T., 1920, by plaintiff, from judgment of C.P. No. 3, Philadelphia Co., March T., 1917, No. 4794, on verdict for defendant in the case of Mary H. W. Krewson Executrix of the last Will and Testament of Edward F Krewson, deceased, v. Helen I. Sawyer, Charles E. Kremer and Francis M. Sawyer, Executors of Theodore E. Kremer, deceased. Affirmed.

Action of account render. Before DAVIS, J.

The trial court gave binding instructions for the defendant. Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were directing a verdict for defendant, refusal of new trial, and judgment of the court.

The judgment of the court below is affirmed.

John Weaver, for appellant. -- Account render lies wherever it appears that defendant has received or has been intrusted with money or property for the use of plaintiff: Bredin v. Dwen, 2 Watts 95; Bredin v. Kingland, 4 Watts 420; Dennison v. Goehring, 7 Pa. 175; Conklin v. Bush, 8 Pa. 514; McLean's Exrs. v. Wade, 53 Pa. 146; Kelley v. Kelley, 13 Phila. 179.

Walter L. Sheppard and William W. Porter, for appellees, were not heard.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE SIMPSON:

Plaintiff, as executrix of the last will and testament of Edward F. Krewson, deceased, brought this action of account render against the defendant, Theodore E. Kremer (who has since died, and whose executors are now appellees), averring in her statement of claim that her deceased husband had conveyed to defendant certain properties in the City of Philadelphia on a written trust, by which he was given power to lease, mortgage or sell them, agreed to advance money to the grantor for his support and maintenance, and to pay the carrying charges of the properties and "any and all sums of money now due and owing" by the grantor "to any person or persons whatsoever"; and, upon a sale thereof being made, after deducting from the proceeds the foregoing items, together with interest on the moneys paid by him, to pay the balance to the grantor. She further averred the properties had been sold, but defendant had not complied with his agreement, and hence claimed an accounting and damages.

The affidavit of defense admitted the conveyance, the declaration of trust and the sale of the properties; averred a full accounting had been made to and with the grantor up to January 1, 1913; set forth a statement of account since that date, showing a balance of $2,639.48 in the hands of defendant; alleged the indebtedness of the grantor existing at the time of the conveyance and still unpaid amounted to $6,354.34, and for that reason plaintiff, as executrix, had no claim upon said balance.

Plaintiff joined issue on these averments, and, at the trial, instead of taking a judgment quod computet, elected under section 18 of the Act of October 13, 1840 (P.L. 1841, page 7), to try the case before a jury. Defendant, who was called by plaintiff as under...