Swain et al. v. Ettling

• Decision Date: 01 January 1858
• Citation: 32 Pa. 486
• Parties: Swain et al. versus Ettling.
• Court: Pennsylvania Supreme Court

32 Pa. 486

Swain et al. versus Ettling.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

J. E. Gowen and S. Hood, for the plaintiffs in error.—The Orphans' Court has jurisdiction over an adversary claim against the estate of a decedent: Kittera's Estate, 5 Harris 422; Gochenaur's Estate, 11 Id. 460; Bull's Appeal, 12 Id. 286. And we contend, that this jurisdiction is exclusive: Whiteside v. Whiteside, 8 Harris 474; Shollenberger's Appeal, 9 Id. 341; Ashford v. Ewing, 1 Casey 215; Hoch's Appeal, 9 Harris 280; Warner's Estate, 2 Wh. 301.

The evidence imposed on the plaintiff the burden of proving consideration: Best on Pres. 299, 300; Byles on Bills 92; Chitty on Bills, 67; Lewes v. Morgan, 3 Y. & J. 230; 5 Price 83; Jones v. Thomas, 3 Y. & Col. 498; Dickson v. Evans, 6 T. R. 57; Rex v. Burdett, 4 B. & Ad. 140; Batley v. Catterall, 1 Mood. & R. 379; Low v. Burrows, 2 Ad. & E. 483; Chitty on Bills 650; 1 Saund. Pl. & Ev. 588.

The law presumes payments have been made in discharge of an indebtedness; not as gratuities: Best on Pres. 176; Hammersley v. Knowlys, 3 Esp. 666; 2 Stark. Ev. 79; Welsh v. Seaborn, 1 Stark. R. 474; Casey v. Gearish, 4 Esp. 9; Baker v. Williamson 4 Barr 469; Flemming v. McClain, 1 Harris 178; Masser v. Bowen, 5 Casey 128; Fletcher v. Manning, 12 M. & W. 571; Harker v. Conrad, 12 S. & R. 305; Hopkins v. Conrad, 2 Rawle 324; Seymour v. Sexton, 10 Watts 255; 1 Chitty's Eq. Dig. 610, pl. 12; Hilton v. Burley, 2 N. H. 193; Wright v. Laing, 3 B. & C. 165; Rohan v. Hanson, 11 Cush. 44; Bachman v. Wright, 1 Williams (Vt.) 478; Harrison v. Johnston, 27 Ala. 445; Stamford Bank v. Benedict, 15 Conn. 437; Patterson v. Hall, 9 Cow. 747, n.; 1 Am. Lead. Cas. 277; Stone v. Seymour, 15 Wend. 23; Matthews on Pres. 103-4; Wood v. Briant, 2 Atk. 522.

Junkin and J. A. Phillips, for the defendant in error.—The jurisdiction of the Orphans' Court is concurrent, not exclusive: Sergeant v. Ewing, 6 Casey 75.

The burden of proving want of consideration rests on the defendant: Chitty on Bills 69.

The answer to the defendants' third point was a clear statement of the law: Masser v. Bower, 5 Casey 128; West Branch Bank v. Moorehead, 5 W. & S. 542; 3 Id. 550; Pearl v. Clark, 2 Barr 350.

The opinion of the court was delivered by READ, J.

This was an action of assumpsit, brought on the 25th February 1856, in the District Court for the city and county of Philadelphia, by Frances Ettling, against the executors of Azariah H. Simmons, deceased. The declaration contained the common counts and two special counts, one on a promissory note of A. H. Simmons for $5000, dated July 20th 1847, and payable twelve months after date to Frances Ettling; the other on another note of Simmons for $6000, dated August 2d 1853, and payable with interest to Frances Ettling, on demand, without defalcation, for value received. Among the usual pleas, the statute of limitations was pleaded as to all the counts, except the second count on the note for $6000.

The case was twice tried, once on the 7th April 1857, and again on the 19th January 1858, when the jury rendered a verdict for the plaintiff on the second count of the declaration (being on the note for $6000), in the sum of $7608, and for the defendants on the other counts, on which judgment was entered.

The executors filed their account in the register's office on the 3d April 1857, and the auditor was appointed by the Orphans' Court on the 15th May 1857.

On the trial of the cause, the counsel for the defendants twice objected to the jurisdiction of the court; once, upon the general ground that the Orphans' Court having exclusive jurisdiction over all claims against the estates of decedents, the court below had no jurisdiction over the case; and again, upon a special offer to prove, the defendants had filed their account as executors on the 3d April 1857; that a copy of that account had been duly certified to the Orphans' Court for the county of Philadelphia, on the same day; that afterwards, on the 15th day of May 1857, the said Orphans' Court appointed George Harding, Esq., auditor, to audit, settle, and adjust the first account of William M. Swain, Arunah S. Abell, and William P. Preston, executors of the last will and testament of said decedent, and to report distribution of the balance; and that afterwards the said plaintiff appeared by attorney before the said auditor, as one of the creditors of the estate of the said Azariah H. Simmons, deceased. Both objections to the jurisdiction were overruled by the court, and form the subject of the first two errors assigned.

Since the trial of the cause and the preparation of the argument of the plaintiffs in error, the case of Sergeant's Executors v. Ewing, reported in 6 Casey 75, has been decided, which disposes of both objections, upon the simple ground, that the jurisdiction of the Orphans' Court is concurrent and not exclusive, and that the creditor has a right to select the forum in which his case shall be tried.

In this case it is clear, that the plaintiff elected to pursue her remedy in a common law court, a right which was secured to her by statutory enactment.

The history of the case is a disgraceful one, both to the living and the dead. It is the story of a married woman, living as a kept mistress, with a married man, having perhaps two other wives, and, at all events, two sets of children called by his name, by two other females of the name of Simmons.

The connection was formed as early as 1847, whilst the husband of the plaintiff was in full life, and continued up to the decease of Mr. Simmons. The evidence discloses the usual extravagances on both sides, in the expenditure of money; coming, no doubt, from the funds of the keeper, who was a man of unbridled passions and of intemperate habits.

Mr. Simmons had two children by Mrs. Ettling, one born on the 9th May 1851, in the city of Philadelphia, named Albert H. Simmons; and the other born in the city of New York on the 6th March 1855, and named Frank V. Simmons.

By the will of Mr. Simmons, dated 3d April 1855, and proved 12th December in the same year, he devised and bequeathed one-fifth of the residue of his estate to each of these children, and appointed their mother their guardian; and in case of either or both dying under twenty-one, the share of the child so dying is to vest in and become the property of Frances Ettling, whom he styles the mother of his two children.

Louis Ettling went to California sometime about the beginning of 1849, and returned in the latter part of June 1852, to New York, where he was met by his wife, who accompanied him to Boston, where he died, on the 12th July, of a fever contracted at Panama, on his passage home. His wife, as his administratrix, received of the Union Bank, New York, $6000 on a draft or check, dated 26th July 1852, drawn by her in favour of the cashier of the Girard Bank, which check was deposited in that bank to the credit of Mr. Simmons.

It appears, that on the 9th July 1848, a house, No. 190 North Front street, in the city of Philadelphia, was conveyed by Henry Christman to Azariah H. Simmons in trust for Frances Ettling, wife of Louis Ettling. The consideration was $6000, of which $3000 was paid in cash by Mr. Simmons, and a mortgage for $3000; which was subsequently paid by the proceeds of the policy of insurance, the house being burned in the great fire of 1850.

The house was rebuilt by Mr. John McClure, in the same year, under the order of Mr. Simmons, who paid him from time to time, sums of money amounting to $6650, and he effected an insurance on it for Mr. Simmons, as trustee.

In this house, Mr. Simmons and Mrs. Ettling lived as man and wife, and there their eldest son was born.

For some reason, not explained, Mrs. Ettling removed to New York, and there...