Reed v. Marshall

• Decision Date: 06 October 1879
• Citation: 90 Pa. 345
• Parties: Reed v. Marshall et al., Executors.
• Court: Pennsylvania Supreme Court

90 Pa. 345

Reed v. Marshall et al., Executors.

Supreme Court of Pennsylvania.

October 6, 1879

May 21 1879

1. R brought an action against the executors of W., for the amount of a legacy. The defendants pleaded as a set-off, two promissory notes of the plaintiff, due to the testator. The plaintiff replied the Statute of Limitations in bar of the demand proposed to be set off, and to this the defendants filed a general demurrer. The court entered judgment for the defendants on the demurrer. Held, that the replication of the Statute of Limitations was good, and that judgment should have been entered on the demurrer for plaintiff.

2. Courtenay v. Williams, 3 Hare 539, reviewed.

Before SHARSWOOD, C. J., MERCUR, GORDON, TRUNKEY and STERRETT, JJ.

PAXSON and WOODWARD, JJ., absent.

Error to the Court of Common Pleas of Adams county: Of May Term 1879, No. 171.

Debt for a legacy, brought by John W. P. Reed against James H Marshall and Joseph Kittinger, executors of John Waugh deceased.

John Waugh was a bachelor, and the owner of a considerable real and personal estate. He died in April 1874, having made his will dated November 7th 1870, which was duly proved April 28th 1874. The defendants, his executors, filed an inventory of personal estate on the 26th of May 1874, amounting to $44,482.12. In this inventory were two promissory notes given to Waugh by the plaintiff-- one dated April 1st 1864, payable two years after date with interest, for $500, the other dated September 27th 1864, payable one day after date, for $100.

The will of John Waugh contained the following clause:

" Item.--I give to the children of my brother Alexander Waugh one thousand dollars each. To the children of my sister Mary, who was intermarried with John Cunningham, I give one thousand dollars each. To the children of my sister Elizabeth I give one thousand dollars each. To the son of my sister Margaret, intermarried with Rev. John Hutchinson, one thousand dollar note. If any of the foregoing nephews or nieces have died, or should die, before my decease, then, and in that case, his or her legacy shall go to his or her children."

Grissell Reed, the plaintiff's mother, was a daughter of the testator's sister Elizabeth, and, if living, would have been entitled to $1000 under his will. She died before the testator, and before the date of the will, leaving five children who claimed her legacy.

The executors paid four of these children $200 each, but refused to pay the plaintiff his portion, alleging that he was indebted to the estate in a larger amount.

The plaintiff filed his narr. in debt for $200, with interest from April 28th 1875. The defendants filed their plea, setting forth the two notes of the plaintiff mentioned in the inventory as a setoff and in extinguishment of the plaintiff's claim. The plaintiff replied the Statute of Limitations in bar of the demand proposed to be set-off; and to this the defendants filed a general demurrer. The case was argued before Herman, P. J., of the ninth judicial district, who entered judgment for the defendants in an opinion, inter alia, saying:

" The question presented by the demurrer is, whether the executors can avail themselves of these notes as an equitable defence to the plaintiff's action to recover, out of the assets of the testator, his share of the legacy bequeathed to the children of Grisell Reed. I can find no reported case, in Pennsylvania or any of the other states, in which this precise point has been decided. But in Courtenay v. Williams, an English case, reported in 3 Hare 539, which was a suit by a legatee to obtain payment of the legacy out of the assets of the testator in due course of administration, it was held by Vice-Chancellor Wigram, that the executor might retain so much of the legacy as was sufficient to satisfy a debt due from the legatee to the testator at the time of his death, although the remedy for such debt was, at the time of the death of the testator, barred by the Statute of Limitations. This is a well-considered case, and the decision rests upon the soundest principles of equity and justice. Keeping in mind that the Statute of Limitations does not extinguish the debt, but bars only the remedy for its recovery, it will require no refined process of reasoning to understand why a legatee, when he sues to obtain payment of a legacy out of the assets of the testator, although under the forms of the law, will be required to do equity by applying his debt in payment of it. He must come into court in a case like this with clean hands. I find the case of Courtenay v. Williams cited with approval by Mr. Justice READ, in Thompson's Appeal, 6 Wright 357, where, although the six years not having fully run until after the death of the testator, the precise point was not raised or decided; yet his comments upon the case show his respect for it as an authority upon the question now before us. The case of Romig v. Erdman, 5 Whart. 112, may be cited as bearing upon the same question.

I think it is clear, both upon principle and authority, that the unpaid notes given to the testator in his lifetime by the plaintiff, are avoidable in the hands of the executors as an equitable defence to this action by the plaintiff for the recovery of his legacy, notwithstanding his plea of the Statute of Limitations, and as his debt exceeds the amount of his legacy, judgment must be entered for the defendants. Judgment is rendered for the defendants on the demurrer."

This action was assigned for error by the plaintiff, who took this writ.

R. G. McCreary, for plaintiff in error.--It is well settled as the law of Pennsylvania, that after the lapse of six years the statute, if invoked, works an extinguishment of all legal rights and remedies upon demands within its operation, and that there can be no recovery, unless upon proof of a new promise: Jones v. Moore, 5 Binn. 573; Levy v. Cadet, 17 S. & R. 126; Zent's Ex'r, v. Heart, 8 Barr 337; Magee v. Magee, 10 Watts 173; Senseman v. Hershman, 1 Norris 83.

The statute would have been a good plea in bar of a suit on these notes by John Waugh's executors, and is equally available in reply to a plea of set-off, which is in the nature of a cross-action, and may be used or not at the option of the defendant. In such case the statute runs until plea filed. The equity doctrine about coming into court with clean hands and doing equity, is misapplied when used in relation to a suit for a legal demand: Himes v. Barnitz, 8 Watts 43; Hinkley v. Walters, 8 Id. 260; Gilmore v. Reed, 26 P. F. Smith 462.

The authority of McClintock's Appeal is limited to cases of distribution in the Orphans' Court, and other cases of pure trust enforceable in equity only, and has...