Whelen v. Phillips

Decision Date03 October 1892
Docket Number169
Citation25 A. 44,151 Pa. 312
PartiesWhelen, Appellant, v. Phillips
CourtPennsylvania Supreme Court

Argued April 1, 1892

Appeal, No. 169, Jan. T., 1892, by plaintiff, William N Whelen, from judgment of C.P. No. 4 (Old District Court) Sept. T., 1869, No. 516, on verdict for plaintiff for part of his claim.

Judgment was entered on Nov. 9, 1869, against Charles L. Phillips. On Jan. 13, 1891, an attachment sur judgment was issued against the Pennsylvania Company for Insurance on Lives and Granting Annuities, executor of Henry M. Phillips.

The facts appear by the opinion of the Supreme Court.

At the trial, before WILLSON, J., counsel for assignee offered in evidence an assignment from Charles L. Phillips to John M Doyle of the contingent legacy in controversy, and also an assignment of the same from John M. Doyle to William E. Dobbins.

Plaintiff objected to the offer, (1) upon the ground that the interest sought to be assigned in the first paper is a remote or contingent interest, and therefore the assignment is not good; (2) that at the time of the assignment there was no present interest in the assignor, and that before the assignment of such a remote contingency can be admitted in evidence the assignee must show that the transaction is fair and the price adequate.

The Court: I shall not exclude the papers upon the ground that this was a remote and contingent interest. Upon the other point as to whether or not it is the duty of the assignee to proceed further and show the bona fides of the transaction is not a subject arising upon the papers. Exception. [1-4]

The court admitted in evidence under objection and exception, conversations between Edward J. Records and defendant Phillips upon the nature of the assignment from Doyle to Dobbins. [5, 6]

The court charged in part as follows:

["I have no doubt at all that the interest which Mr. Phillips had under his uncle's will was an interest which in Pennsylvania was assignable or transferable, and that he could make a valid assignment of it for a valuable consideration to a third party, and the question arises whether he did make such an assignment.]

"Now, while an assignment of that kind can be made, it is true, it is capable of being attacked, perhaps somewhat more readily than an assignment of an ordinary character. A man who is dealing with reference to a future expectant interest, an interest which is not vested in him, which is not entirely within his control, which he cannot presently enjoy, as was the case here with the legatee in question, is, when he comes to deal with one who proposes to buy it, in a different position from that of a man who has a claim, a note or a judgment which he wishes to sell. What he proposes to sell and the other to buy in a genuine bona fide transaction is something which is necessarily certain in its value.

"Take this particular case. The legacy which Mr. Phillips was entitled to under the will of his uncle was one which would not vest in him or become his absolutely until his mother died. His mother was living at the time of this so-called assignment. If he died before she did then nothing would pass to the assignee. For instance, Mr. Doyle says he purchased all the right that Mr. Phillips had in the legacy of $4,600 or thereabouts. Of course, when he purchased it, if he did so in a proper way, he purchased something which might realize for him a certain sum of money, the $4,600, or, in case Mr. Phillips died before his mother, nothing. [According to his statement, he paid $1,000 for something or nothing, as it might turn out, paid it for the right, whatever it was, and that right might be valuable or might be valueless, according as the event turned out.]

"Did he in that transaction act honestly and fairly towards Mr. Phillips? If he did, that is an end to the plaintiff's claim here to that portion of the fund in the hands of the garnishee which the assignment called for, and you are not to settle that merely by considering whether Mr. Phillips was embarrassed. He might be embarrassed, and yet the transaction be a perfectly good one. Otherwise a man in his position could not part with his property; [the simple fact that he (Phillips) was embarrassed would not vitiate the transaction. The question upon that point is, did Mr. Doyle (who was undoubtedly an assignee by the paper shown here, which is admitted to have been executed), take advantage of his position to put the screws upon Phillips to get from him an assignment for a less sum of money than otherwise Mr. Phillips could have obtained?] Is there or not any evidence which would justify that conclusion upon your part?

"Mr. Phillips, as I understand his testimony, does not say that. He takes the position that it was a pledge which Mr. Doyle acquired and not an absolute title; that it was an advance of money rather than a purchase by Doyle. If that were the transaction, and if it were a transaction which would affect the present holder of the property assigned, whatever it may be, then undoubtedly the plaintiff here would be entitled to a verdict for the entire sum, less the amount advanced with interest. [But, Mr. Doyle says it was not an advance, that it was an out and out purchase, and Mr. Records has testified that in the final transaction which vested title in Mr. Dobbins, the present claimant, Mr. Phillips took part and stated that he had no interest in it.] If you believe Mr. Doyle and Mr. Records you will hardly be of the opinion that it was an advance, but that it was treated and understood between the two parties as an actual sale of the interest.

"We now come back to that same question. If you think it was a sale and not a pledge you have to consider the point which I have already called to your attention; was it a fair transaction as between Doyle and Phillips? The fact that Doyle may have taken excessive rates of interest for money in other transactions ought not necessarily to prejudice his case in this transaction. He was buying, as I have already said to you, an altogether uncertain thing, something which might or might not prove valuable to him; he might lose his thousand dollars entirely, he might get $4,600 odd. That question I shall leave to you in connection with what I shall say in a moment. If it was a fair transaction, although it may turn out to be largely to the advantage of Dobbins as Doyle's assignee, then you have nothing to do with the question of whether it may prove profitable.

["The question still remains that even if Doyle did acquire whatever title he had by assignment under circumstances which would avoid it as between him and Phillips -- still the present holder of the property assigned, whatever it may be -- Mr. Dobbins may have a better right than Doyle could have had, if you believe that the evidence justifies you in saying that Phillips was an actual party to the transfer to Dobbins. If he dealt in that matter with Mr. Dobbins or his agent or representative in such a way as to justify the impression that he had no interest in the matter, that Doyle was the owner of the legacy so far as he could give it to him by assignment, if you believe what has been said in regard to Phillips's consenting to the obtaining of a new policy upon his life for the consideration of a hundred dollars, for the purpose of perfecting in Mr. Dobbins the title he was getting and of securing to him whatever money he might put at risk by the purchase of that interest from Doyle, if you believe those circumstances to be true and that Phillips contributed to make a sale of this property (which he claims to have been only a pledge to Doyle) to Dobbins, then he must be regarded as estopped, and as the plaintiff here can only claim through him, the plaintiff can set up no better title than he could under these circumstances.]" [12]

Plaintiff presented the following point:

"3. Under the evidence in no event can the assignee recover more than the amount paid by Doyle to Phillips with interest." Refused. [7]

Verdict and judgment for plaintiff for $2,400.

Plaintiff appealed.

Errors assigned were (1-6) rulings on evidence, but not quoting bills of exceptions or evidence; (7-12) instructions, quoting point and charge as above.

Judgment affirmed.

Charles Henry Hart, F. Carroll Brewster with him, for appellant cited Earl of Chesterfield v. Sir Abraham Janssen, 2 Ves. Sr. 125 (1750); 1 White and Tudor's L.C. Eq. 773-836; Earl of Aylesford v. Morris, L.R. 8 Ch. Ap. 484-490; Gowland v. De Faria, 17 Ves. Jr. 20; Bawtree v. Watson, 3 M. & K. 339; Shelly v. Nash, 3 Madd. 232; Foster v. Roberts, 29 Beav. 467 (1861); Beynon v. Cook, L.R. 10 Ch. Ap. 389; Salter v. Bradshaw, 26 Beav. 161 (1858); Butler v. Duncan, 47 Mich. 94; King v. Hamlet, 2 M. & K. 456-475 (1834); Tottenham v. Emmet, 14 W.R. 3 (1865); Talbot v. Staniforth, 1 J. & H. 484; Boothby v. Boothby, 1 Mac. & G. 604; Davidson v. Little, 22 Pa. 251 (1853); Curwyn v. Milner, 3 P. Wms. 292; Gowland v. DeFaria, 17 Ves. Jr. 23; Boynton v. Hubbard, 7 Mass. 112; Miller v. Cook, L.R. 10 Eq. Cases, 641-646; Curtin v. Somerset, 140 Pa. 70-81 (1891); Power's Ap., 63 Pa. 443 (1869); Tweddell v. Tweddell, T. & R. 13; Sullivan v. Sullivan, 21 Law Rep. 531; Taylor v. Taylor, 8 Howard, 183; East Lewisburg Manufacturing Co. v. Marsh, 91 Pa. 96 (1879); Ruple v. Bindley, 91 Pa. 296 (1879); Bittenbender v. R.R. Co., 40 Pa. 269; Bogle's Est., 9 W.N. 256 (1880); Lardner's Est., 16 W.N. 51 (1885); Patterson v. Caldwell, 124 Pa. 461 (1889); Mulhall v. Quinn, 1 Gray, 105; Low v. Pew, 108 Mass. 347 (1869); Huling v. Cabell, 9 W.Va. 522 (1876); Hartley v. Tapley, 2 Gray, 565; Addis v. Campbell, 4 Beav. 401 (1841); Nesbitt v. Berridge, 32 Beav. 282 (1863); Reineman v. Robb, 98 Pa. 474 (1881); Theyken v. Howe Co., 109 Pa. 95 (1885); ...

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29 cases
  • Long's Estate
    • United States
    • Pennsylvania Superior Court
    • April 19, 1909
    ...that the Supreme Court has often held that the beneficiary may dispose of his legacy whether it be contingent or vested. In Whelen v. Phillips, 151 Pa. 312, it was decided stated in the syllabus: " In Pennsylvania a person sui juris owning a contingent interest in land or in personal proper......
  • Martin v. Baird
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