Pringle v. Pringle

• Decision Date: 05 January 1869
• Citation: 59 Pa. 281
• Parties: Pringle <I>versus</I> Pringle.
• Court: Pennsylvania Supreme Court

Page 281

59 Pa. 281

Pringle versus Pringle.

Supreme Court of Pennsylvania.

October 29, 1868.

January 5, 1869.

October 29th 1868.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Cambria county: No. 16, to October and November Term 1868.

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G. M. Reade, for plaintiff in error.—As to 1st assignment, cited Asay v. Hoover, 5 Barr 37; Carter v. Trueman, 7 Id. 326; Snyder v. Snyder, 6 Binn. 483; McComb v. Dillo, 5 S. & R. 304; Pipher v. Lodge, 16 Id. 214; Jones v. McKee, 3 Barr 500; Stein v. Bowman, 13 Peters 221; Rees v. Livingston, 5 Wright 119; 1 Greenl. Ev. §§ 334-337; Hitner's Appeal, 4 P. F. Smith 117. As to 2d, 3d, 4th and 6th assignments: Mackey v. Brownfield, 13 S. & R. 239; Maus v. Maus, 5 Watts 315; Riddle v. Dixon, 2 Barr 372; Durall v. Darby, 2 Wright 56; Graham v. Hollinger, 10 Id. 55; Reichart v. Castator, 5 Binn. 109; Whiting v. Johnson, 11 S. & R. 328; Scott v. Heilager, 2 Harris 238. There was no evidence of conspiracy between George and his father. Besides which the personal representative cannot show fraud in the decedent, except in aid of creditors: Swan v. Scott, 11 S. & R. 155; Eberman v. Reitzel, 1 W. & S. 181; Columbia Bank v. Haldeman, 7 Id. 233; Thomas v. Brady, 10 Barr 170; Chase v. Burkholder, 6 Harris 51; Buehler v. Gloninger, 2 Watts 226; Stewart v. Kearney, 6 Id. 453; Ellmaker v. Ellmaker, 4 Id. 91; Mitchell v. Kintzer, 5 Barr 216. If the defendant by fraud injured the plaintiff she has her action against him: Penrod v. Mitchell, 8 S. & R. 522; Mott v. Danforth, 6 Watts 304; Hopkins v. Beebe, 2 Casey 85. As to the 7th and 8th assignments: Absolute delivery was not necessary as between the parties: Shaw v. Levy, 17 S. & R. 101; Vandyke v. Christ, 7 W. & S. 373; McCandlish v. Newman, 10 Harris 460; Winslow v. Leonard, 12 Id. 17; Dennis v. Alexander, 3 Barr 50; Smith v. Smith, 5 Id. 257. As between the parties no consideration need appear: the seal imports a consideration: Johnson v. Smith, 1 Ves. 314; Clevinger v. Clevinger, 2 Vern 473; 1 Bro. P. C. 122; Ellison v. Ellison, 6 Ves. 662; Colman v. Sarrell, 1 Ves. Jr. 50; Pulvertoft v. Pulvertoft, 18 Id. 91, 93, 99; Fortescue v. Barnett, 3 Mylne & Keen 36; Killinger v. Reidenhauer, 6 S. & R. 531; s. c. 11 Id. 119. 9. As to the admission of Patton's deposition: Regina v. France, 2 M. & Rob. 207; Underhill v. Van Cortland, 2 Johns. Ch. 339; Amory v. Fellows, 5 Mass. 219; Smith v. Huntingdon, 1 Root 226; Allen v. Rand, 5 Conn. 322; Patterson v. Patterson, 2 Penna. R. 200; Hickok v. Farmers' and M. Bank, 35 Verm. 476 10th assignment: Shertzer v. Herr, 7 Harris 34; Russell v. Reed, 3 Casey 166; Thompson's Appeal, 12 Id. 418; 2 Tidd's Pr. 717. 11th assignment: Ensley v. Wright, 3 Barr 501.

R. L. Johnston (with whom was W. H. Lechler), for defendant in error, cited as to 1st assignment:—Reese v. Livingston, 5 Wright 119. As to 2d, 3d and 4th assignments: Reinhard v. Keenbartz, 6 Watts 96; Kauffman v. Swar, 5 Barr 230; Kinzer v. Mitchell, 8 Id. 78; Jackson v. Summerville, 1 Harris 368; McCaskey v. Graff, 11 Id. 324; Kilsey v. Murphy, 2 Casey 84; McDowell v. Rissell, 1 Wright 168.

The opinion of the court was delivered, January 5th 1869, by SHARSWOOD, J.

At common law a man, who is sui juris and compos mentis, may give away all his personal property, so as to become himself and leave his wife and children, penniless: 1 Blackst. Com. 449; 2 Kent's Com. 440. As to his lands and tenements his wife is protected to the extent of her dower against any transfer or disposition of her husband by act inter vivos or last will and testament, without her consent; and by the 11th section of the Act of April 11th 1848, Pamph. L. 537, commonly called the Married Women's Act, the husband cannot by will deprive his wife of the share of his personal property, to which she is entitled under the intestate laws. But as to personal property by gift inter vivos his power is absolute. This is perhaps to be regretted, but it is too well settled to be now shaken. The civil law, that code of written reason, did not permit it. No donation could give away the legitime or legal portion to which children or other persons were entitled as against the will of the owner, and who could attack the testament as inofficiosum: 1 Domat 402, Strahan's ed. Nay, if a donation were of all one's goods, there must be reserved either the usufruct of the goods given or some part which may suffice for the sustenance of the donor: Ibid. But in our law no such gift otherwise valid can be impeached as a fraud on a man's wife or children. They have no legal right to any part of his goods, and therefore no fraud can be predicated of any act of the husband or parent to deprive them of the succession. "Who so ignorant," says Gibson, C. J., "as not to know that a husband may dispose of his chattels during the coverture without his wife's consent, and freed of every post mortem claim by her?" Ellmaker v. Ellmaker, 4 Watts 91. A dictum by Woodward, C. J., in Evans v. Dravo, 12 Harris 65, appears adverse to this view, but the question there was whether in an action on a bond given in part for the purchase-money of real estate, the purchaser could set up that the husband had entered into an agreement not to enforce payment of the bond, which had been taken, in order to induce the wife to execute the deed; and it was rightly ruled that he could not, as it was in fraud of the wife. The husband there sued on the bond. Had he voluntarily surrendered or cancelled it, and the action been by his executor or administrator to recover it, an entirely different question would have been presented.

There is another point which is equally indisputable. As a party cannot set up his own fraud to avoid any instrument or contract executed or entered into by him, so neither can his personal representative after his death, without some affirmative evidence that it is necessary to enable him to discharge debts of the decedent and then only to the extent to which it may be so necessary: Buehler v. Gloninger, 2 Watts 226. "There being no averment," says Rogers, J., "that the estate was insolvent, the presumption was that the administrators had assets in their hands sufficient to pay the debts." In Stewart v. Kearney, 6 Watts 455, Gibson, C. J., in an action of trover by an administrator for goods alleged to have been transferred by the intestate in fraud of creditors, said: "This action is maintainable in the name of the administrator as a trustee for the creditors only so far as the property in contest may be needed for payment of debts, whose existence the plaintiff will be bound to show:" and the judgment below was reversed, and the cause sent back with this instruction as to the law. See also Schriber v. Rapp, 5 Watts 351; Englebert v. Blanjot, 2 Whart. 245.

One other question remains to be considered before proceeding to notice in detail the assignments of error in this case. The transfer of a chose in action, whether by instrument under seal or not, unless founded on a sale for a valuable consideration, is not complete and executed until delivery to the assignee. When there is a contract for the sale of a chattel or of a chose in action, no doubt actual delivery of the thing, or of the evidence of it is not necessary to perfect the title of the vendee. The property passes whenever the terms of the contract are settled and the subject-matter ascertained and set apart: Smyth v. Craig, 3 W. & S. 14; Parker v. Donaldson, 2 Id. 9. But in a gift of a chattel actual delivery is essential. Until delivery, the gift is revocable by the donor. So where there is a voluntary bond or a gift of a security, or other chose in action, and the donor executes an assignment, whether under seal or otherwise, and retains the paper in his own possession, he retains at the same time entire control over the gift; he may cancel or destroy the transfer. No court of equity would compel the delivery of it to the donee; for a chancellor never interferes to enforce any contract not founded on a meritorious consideration: 2 Kent Com. 438-9; Clemson v. Davidson, 5 Binn. 398; Aycinena v. Peries, 6 W. & S. 251; Nesmith v. Drum, 8 W. & S. 9; Yard v. Patton, 1 Harris 288. But it is urged that the seal in law imports consideration and the transfer on its face purports to be for a valuable consideration, by which the assignor and volunteers under him will be estopped from denying it. This may be true, but the seal produces no such effect until the instrument becomes the deed of the party by delivery or what in law is equivalent thereto. Until then the assignment, though signed and sealed, is still an unexecuted transfer in the eye of the law. The cases cited and relied on by the learned counsel for the plaintiff do not support his position. In Smith v. Smith, 5 Barr 256, there was an express direction by the obligor in a paper which was admitted to probate as testamentary that his executors should deliver the bond in question after his death. In Parker v. Urie's Executors, 9 Harris 305, the case is put on the ground that there was a valuable consideration for the assignment. "Where," says Lewis, C. J., "one on his death-bed expresses a wish to his heir-at-law that certain persons whom he names shall receive of his estate specified articles and sums of money as gifts from him, and the heir promises him that his request shall be fulfilled, the necessary implication is that the promise is to be performed after the death of the promisee, and that the consideration is that the promissor shall succeed to his estate under the intestate laws." In Bunn v. Winthrop, 1 Johns. Ch. Rep. 329, the deed is stated to have been delivered, though it was retained in the possession of the grantor. There was nothing in that circumstance necessarily inconsistent with delivery. After the most formal delivery, a deed may be returned to the possession of the grantor for...