Tobin v. Gregg et al.

• Citation: 34 Pa. 446
• Parties: Tobin versus Gregg et al.
• Decision Date: 01 January 1859
• Court: Pennsylvania Supreme Court

34 Pa. 446

Tobin versus Gregg et al.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Fayette county.

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J. B. & A. Howell, Kaine, and Ewing, for the plaintiff in error.—The parol evidence was inadmissible, to show that the deed to the defendant was upon a different consideration from that expressed therein: 5 Rep. 26; Villers v. Beamont, 2 Dyer 147; Clarkson v. Hanway, 2 P. Wms. 203-4; Meres v. Ansell, 3 Wils. 275; Preston v. Merceau, 2 W. Bl. 1249; 7 Johns. 341; Howes v. Barker, 3 Id. 506; Schermerhorn v. Vanderheyden, 1 Id. 139; Church v. Church, 4 Yeates 280; Cozens v. Stevenson, 5 S. & R. 421.

But the court was clearly in error in giving a binding instruction to the jury; the fact of the defendant's assumption ought to have been submitted to them.

Veech, for the defendants in error, cited Krider v. Lafferty, 1 Wh. 314; Coates's Appeal, 2 Barr 129; Jackson v. Jackson, Id. 212; Gregory v. Setter, 1 Dall. 193; Hoge v. Hoge, 1 Watts 163; Jones v. McKee, 3 Barr 496; S. C. 6 Id. 425; Murphy v. Hubert, 7 Id. 420; Hayden v. Mentzer, 10 S. & R. 329; White v. Weeks, 1 Penn. R. 486; Jack v. Dougherty, 3 Watts 151.

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

The rulings of the court proceeded on the assumption that the will of Thomas Tobin, the ancestor of both parties, plaintiffs and defendant, created a trust in his wife, for the benefit of his children and grandchildren, and hence it was inferred, that these plaintiffs (grandchildren of the testator) had a beneficial interest in the Fayette county farm, which farm passed to the defendant by his mother's deed, and which was a sufficient consideration to support the promise on which they sued him. And such is the argument in this court.

Granting the assumption and the inference, still the defendant's promise was to be proved to the satisfaction of the jury. The action is assumpsit; the promise rests in parol proof, and that of the most unsatisfactory sort; the confessions and casual declarations of the defendant made to third parties, who had no interest that entitled them to full explanations, or stimulated them to understand and remember exactly what was meant. The most that could properly be made of such evidence, was to refer it, in connection with the proofs on the other side, to the jury, to find whether the promise declared on, had indeed been made. If they should find the promise, then, according to the court's construction of the will, there was an adequate consideration for the promise, in the interest to which the plaintiffs were entitled by virtue of the supposed trusts of the will.

But the court seems to have withdrawn the question from the jury, by telling them that if they believed the evidence, the plaintiffs were entitled to recover. There was, therefore, a mistrial, even in the view which the court took of the will. The case should have gone to the jury, to say, whether the evidence proved the promise as laid.

But there was a greater mistake made upon the will. It would be a somewhat nice question, upon the authorities, whether the words of the testator created any trust whatever; but not to debate this, the trust, if trust there were, was coupled with a power of appointment very expressly given to Mrs. Tobin: "I will and bequeath to my loving wife, Lydia, all my property, of whatever description, both real and personal, with full power to dispose of the same among my lawful heirs, or grandchildren, as she may think proper, at her decease, or before, if she may wish to distribute the whole, or part of the same." Mrs. Tobin's deed of 24th August 1844, to her son Martin, was a full and legal execution of this power, so far as concerned the farm in Fayette county. Martin was a son of the testator, and therefore within the description of ...