Shiroff v. Weiner
| Decision Date | 27 January 1930 |
| Docket Number | 138 |
| Citation | 149 A. 175,299 Pa. 176 |
| Parties | Shiroff, Admr., v. Weiner, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 7, 1930
Appeal, No. 138, Jan. T., 1930, by defendant, from order of C.P. No. 2, Phila. Co., June T., 1929, No. 3092, making absolute rule for judgment for want of sufficient affidavit of defense, in case of Fanny Shiroff, administratrix of estate of Harry Shiroff, deceased, v. B. Weiner. Affirmed.
Assumpsit on contract.
Rule for judgment for want of sufficient affidavit of defense. Before LEWIS, J.
The opinion of the Supreme Court states the facts.
Rule absolute. Defendant appealed.
Error assigned was order, quoting record.
The judgment of the court below is affirmed.
A. L Levi, of Levi & Mandel, for appellant. -- The administratrix had the power to enter into an agreement of novation releasing appellant from principal liability and substituting the liability of the corporation, with the collateral liability of appellant: Parker v. Steamship Co., 14 L.R.A. 414; Black's App., 25 Pa. 238; Holmes's App. 79 Pa. 279; Ihmsen v. Huston, 247 Pa. 402; Merchant's Est., 29 Pa. Dist. R. 299.
Common law powers of administrators not affected by section 40 of Pennsylvania Fiduciaries Act of 1917, P.L. 447; Jefferies v. Ins. Co., 110 U.S. 305.
William N. Nitzberg, for appellee. -- The contracts offered by defendant as "new matter" in his affidavit of defense to the action, are not the contracts of plaintiff in her capacity as administratrix and the court had no right to so consider them: Brill v. Brill, 282 Pa. 276.
If the court believes that the contracts set up as a defense were made by appellee in her capacity as administratrix, they are not binding upon the estate where there are six minor children to take under the intestate law: Dougherty v. Stephenson, 20 Pa. 210; Seip v. Drach, 14 Pa. 352; Grier v. Huston, 8 S. & R. 402; Fehliner v. Wood, 134 Pa. 517; Williamson's App., 94 Pa. 231.
The orphans' court has chancery jurisdiction, and therefore the administratrix cannot make a contract involving trust funds without authority of the orphans' court: Willard's App., 65 Pa. 265; McCandless's Est., 61 Pa. 9, 12; Abbott v. Reeves, 49 Pa. 494.
Part payment to Fanny Shiroff in her individual capacity does not estop her in her capacity as administratrix from setting up the invalidity of the contract of novation: Tustin v. Coal & Iron Co., 250 Pa. 425; Rhawn v. Furnace Co., 201 Pa. 637.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.
The court below entered judgment against defendant for want of a sufficient affidavit of defense, and this appeal followed.
Plaintiff averred in her statement of claim that, in February, 1924, the defendant contracted in writing with her husband, the decedent, to purchase the latter's business, with all of the assets pertaining thereto, for the sum of $17,000, a copy of the sale agreement being attached as an exhibit to the statement; that, in June, 1924, the vendor died intestate, survived by six children and his wife, the plaintiff, who became his administratrix; that, beginning in March, 1927, defendant paid on account of said purchase a total of $7,445, and still owes "the estate of said Harry Shiroff" $9,555, for which suit was brought.
Defendant, in his affidavit of defense, admitted practically all the facts of the statement, but averred that the payments on the indebtedness in controversy were not made by him, but by the B. Weiner Manufacturing Company, a corporation. Defendant denied any indebtedness to the estate of decedent, or that plaintiff, "as administratrix," had demanded payment from him of the balance in suit. He averred that, "on the contrary, plaintiff brought an action in her individual capacity, not as administratrix, against defendant, in the court of common pleas No. 2, as of March Term, 1929, No. 6073," and set up as new matter that, in July, 1925, he had sold his business to the before mentioned corporation, and that it had assumed his obligations to decedent's estate by entering into a series of written contracts (attached as exhibits to the affidavit of defense and made a part thereof), "meant by the parties thereto to replace the agreement of February 11, 1924," with decedent, which, the affidavit asserts, was "thereafter considered abrogated."
When the contracts averred by defendant are examined, however, it appears that each of them was made with Fanny Shiroff, individually, and not as administratrix of the estate of her deceased husband. To avoid being impaled on this state of fact, defendant avers in his affidavit of defense that, although the agreements in question were "executed by plaintiff individually, it was the intention of the parties . . . that said agreements should be binding upon the plaintiff in her capacity as administratrix of the said Harry Shiroff, deceased"; further, that "the said intention of the parties . . . that plaintiff should be bound in her capacity as administratrix . . ., and not in her individual capacity," was omitted from the writings through a mistake of the scrivener who drew the agreements depended on by defendant.
In view of what appears in the record of the...
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