Summary
APPEAL BY PLAINTIEES EROM THE COURT OE COMMON PLEAS OE NORTHAMPTON COUNTY.
No. 449 January Term 1889, Sup. Ct.; court below, No. 47 August Term 1888, C. P.
■ On August 19, 1888, there was entered in the court below, by appeal from the judgment of a justice of The peace, an action of trespass brought by James Roberts and Mary Roberts, his wife, in right of said Mary Roberts, and Elizabeth, Hannah and Ellen Griffith, by their next friend, James Roberts, against I. J. Messinger and David Parsons, to recover damages for the seizure and sale by the defendants, under an execution, of goods and chattels alleged to belong to the plaintiffs. The plea of nil debent was entered by the prothonotary, sec. reg.
'The action was tried December 6, 1888, and a verdict rendered in favor of the plaintiffs for $801.55, but after argument a rule for a new trial was made absolute. At the second trial, on March 25, 1889, the following facts were shown on the part of the plaintiffs:
Robert Griffith died about 1884, intestate, possessed of household goods worth in the aggregate less than $300, and leaving a widow, Mary Griffith, and three daughters, Elizabeth, Hannah and Ellen Griffith, who are plaintiffs in this case. The widow subsequently married James Roberts, but at what date did not appear. The daughters were all in their minority at their father’s death, and so continued at the time of the trial. There was no administration upon the estate of Robert Griffith, but soon after his death an understanding between the mother and daughters, respecting the ownership of the goods belonging to his estate, was expressed in conversations between them. The only testimony on this subject was that of the three daughters, which was as follows :
Hannah Griffith testified : Q. The furniture was household furniture, left in the house at the time of his death ? A. Yes, sir. Q. After he died, was there anything said to you and the rest of the children about your mother’s interest in that property? A. Mother told us that the things were ours now, since father died. Q. At that time was your oldest sister at home? A. Yes, sir. Q. And your younger sister? A. Yes, sir. Q. And your mother ? A. Yes, sir.
Ellen Griffith testified: Q. After your father’s death was anything said by your mother to you and your sisters as to what should be done with that property ?» A. She said the furniture was to be ours after father died. On cross-examination: Q. You stated that the day after your father’s death your mother said all these things belonged to you girls? A. Yes, sir. Q. How did she come to say that? A. Because they were father’s things. Q. Did she say that, because they were your father’s things ? A. Yes, sir. Q. Did she use that language ? A. She only said all the things belonged to us girls. Q. Did she say anything about the property belonging to her under the |B00 law ? A. No, sir; she didn’t. Q. Did she say anything about it belonging to her at all ? A. No, sir. Q. You don’t know how long these things staid there in the house? A. No, sir. ......Q. Is that all your mother said abou the ownership of the propert}*-, simply that it belonged to you girls ? A. Yes, sir. Q. How often did she say that ? A. Many times. Q. Do you mean she said it many times on that day, or many times after your father died ? A. She often told us that, after father died. Q. How many times did she say this ? A. I don’t know how many. Q. Do you remember one time ? A. Yes, sir. Q. When was it? A. Just a couple of weeks after father died. Q. What did she sajr ? A. The same that she always said, that the things belonged to us girls. Q. How did she come to say that ? A. I don’t know. Q. Did she say anything else ? A. No, sir. Q. What did she say would be done with the property, Miss Griffith ? A. Nothing; I don’t know nothing she said about that. Q. Was it never talked about what should become of it — whether it was to stay there, or whether you girls were to take it away? A. No, sir.
■ Elizabeth Griffith testified: Q. After your father died, was anything said to you children by your mother, as to who should have that property ? A. Mother said the things belonged to us children, the next day after father died. Q. Did she ever say it at other times ? A. She always said it.
The goods referred to in the foregoing testimony remained in the household, and were used by the family in the same manner as before Robert Griffith’s death, until the sale complained of in this action. A short time after their father’s death, Elizabeth and Hannah went to New York and remained there, at service, most of the time until the trial, but they had no other home than with their mother’s family, and occasionally they would come back to see her. The youngest child, Ellen, remained continuously with her mother.
On April 2, 1888, I. J. Messinger obtained a judgment before a justice of the peace against “ James Roberts and Mary Griffith” for f>8.75, being a balance of rent due for a house belonging to Messinger which the defendants in the judgment had jointly leased from him, on May 15,1887, the lease waiving exemption. A writ of execution was issued upon that judgment and placed in the hands of David Parsons, a constable, who levied thereunder upon the household goods referred to. At the time of the levy, both the mother and the daughter Hannah notified the constable that those goods were the property of the three Griffith children. The execution was then stayed by order of Messinger, and so returned. Subsequently, having given to Parsons a bond of indemnity, Messinger caused to be issued a second execution, placed it in the hands of Parsons, and had him make a new levy upon the same goods. The notice that the goods belonged to Elizabeth, Hannah and Ellen Griffith, was renewed, but under the direction of Messinger the constable proceeded and sold them.
The plaintiffs having concluded their testimony and rested, the defendants moved the court to enter a judgment of nonsuit for the reason that the action was not properly brought, the plaintiffs named upon the record being Mrs. Roberts and her husband, in her right, and her three daughters; and for the additional reason that, the testimony showing that the property sold by the defendant Parsons belonged to the estate of Robert Griffith deceased, that no letters of administration were ever taken out in said estate, and no proceedings were instituted by the widow or children to establish any right to said property under the widow’s exemption law, an action for the value of the property, or for damages upon the basis of such value, could not be maintained by any person but a legal representative of the decedent.
Thereupon the plaintiffs offered “ to prove that there were no other assets of the estate, no other property of the decedent, Robert Griffith; that the property that was taken by the defendants, as the property of Robert Griffith, included all the property of which he died possessed; that the actual value of the property, as now proven, is under $800; and that, by agreement between the widow of the decedent and the children, she transferred her interest to the children, who are now the plaintiffs upon this record. Offered for the purpose of showing that no creditors of the decedent have any interest in the distribution of the fund; that the assignment to the minor children of the widow of her right and interest in the property, was made before her marriage to James Roberts, a day or two after the death of Robert Griffith, her first husband, for the purpose of investing- them with absolute title to this property; to enable them to maintain this action; to be followed by a motion to amend the record by striking out the name of James Roberts and Mary, his wife, in right of said Mary Roberts.”
Objected to, as incompetent and irrelevant, and that there is no tribunal except the Orphans’ Court to decide the question.
By the court: Offer overruled; exception.2 As I understand the law, these minor children were in no sense in the actual possession of this property; nor were they the owners of the property; nor did they have such an interest in the property as would carry with it the constructive possession, and, without that, the plaintiff would have no standing in court. For that reason, there being no evidence that the children were in the actual possession of tiffs property, I will grant the motion for compulsory nonsuit.1
A motion by the plaintiffs that the judgment of nonsuit be lifted having been argued, the court, Schuyler, P. J., filed the following opinion:
We directed a compulsory nonsuit, conceiving that the plaintiffs had not shown in themselves either actual possession of the goods, or such an interest in them as would carry with it the constructive possession, without one or the other of which they could not maintain their action. The principle just stated is in almost the identical language of the Supreme Court. “ To maintain trespass,” says Mr. Justice Thompson, in Weitzel v. Man-, 46 Pa. 464, “ there must be in the plaintiff either actual possession, or the right to immediate possession flowing from the right of property.” But the principle is not seriously disputed ; and ‘the only question raised by the present motion is whether the plaintiffs have brought themselves within it.
As to the actual possession, the question is free from difficulty, since by the plaintiffs’ own showing the goods were at the time of the levy in the custody of their mother and stepfather. This, we take it, is conclusive against the plaintiffs, they being all minors, on the subject of actual possession. As well might a babe in arms dispute the possession of its parents.
The next inquiry is whether the plaintiffs have shown in themselves such a right of property as gives them a standing in court. In support of that right, great reliance is placed by the learned counsel for the plaintiffs on Walworth v. Abel, 52 Pa. 372; but a very slight examination of that case will show that it is not an authority in point. This is manifest from the first two sentences, in the opinion of the Supreme Court, as follows: “ It is material to bear in mind, in this case, that the widow and heirs are not seeking to recover property of the estate without letters of administration. Ordinarily this cannot be done.” But this is exactly what the present plaintiffs are trying to do. A much stronger case in favor of the plaintiffs is McLean v. Wade, 53 Pa. 146. The grounds of the decision in that case are clearly stated by Thompson, J., who delivered the opinion of the court, as follows: “We have another question, and that involves the plaintiffs’ right to sue in their own names, without administration, in a case circumstanced as this is. Undoubtedly, the estate of a decedent descends to his heirs at his death, subject to the claims of creditors, and the laws in force for administering it. But if there be no debts, and no distribution needed, and only a solitary heir, administration would seem to be useless. In this case, I see no reason why the heir may not assert her rights. Indeed, this point was decided in Lee v. Wright, 14 S. & R. 105, and in Same v. Same, 1 R. 149. This suit was instituted by the heir some twenty-six years after the death of her father. After such a lapse of time, and in the absence of any evidence to countervail it, there is a conclusive presumption of the payment of every species of debt which might have existed against the estate of her father at his decease. This being so, the authorities cited seem to settle the points in favor of the maintenance of this action, there being no creditors.”
We have been able to find no reported case, either in our own state or elsewhere, that goes as far as this. The two cases referred to by Judge Thompson as supporting his position are, strange to say, inimical to it. In the first case, Judge Duncan, who delivered the opinion of the court, says: “ It is quite clear, that the children of a decedent cannot bring any action for his property without administration; ” and, in the second case, the same principle is distinctly announced. But we have no inclination even if we had the right, to question the correctness of the decision in McLean v. Wade. It is enough for present purposes that the decision is not in point. In that case, it was made to appear affirmatively that all the debts of the estate had been fully paid, and the case turned upon that fact. In the case at bar, it does not appear whether there are any debts or not. If there were no debts, we think it clear that the burden was on the plaintiffs to show that fact. They are executors de son tort, and the general rule is that an executor de son tort can maintain no action: Lee v. Wright, 1 R. 151. The one exception to the rule is where there are no debts. Surely, to obtain a standing in court, the plaintiffs should bring themselves within the exception, and that is a fair inference from all the cases above referred to.
It has been urged, however, that a different rule should prevail where, as here, the entire estate would be swept away under the widow’s claim for the $300 exemption. The argument is that the estate was beyond the grasp of creditors, and that therefore it is immaterial whether any creditors existed or not. But this argument, instead of being an answer to what has been said, introduces an entirely new element into the case, which calls for the application of a new and different set of principles. Thus far we have been considering the plaintiffs’ rights as if there had been no widow and no exemption ; now we are called upon to consider them as derived exclusively from the widow, for the entire amount of the exemption vests in her, without respect to the children: King’s App., 84 Pa. 345.
Under the phase which the case now presents, two questions arise. In the first place, did the widow by the death of her husband acquire any title whatever to the goods in controversy without administration? The answer is at hand. In Davis’s App., 34 Pa. 256, Strong, J., speaking of the widow’s claim to the exemption, says:. “ Her rights under the statute are only sub modo. She can obtain property only in the way designated by the legislature. Without an appraisement, she cannot take as a distributee as against creditors.” And in Lyman v. Byam, 38 Pa. 478, Woodward, J., says: “The statutes, which give the widow $300 worth of the estate, contemplate a regular administration.” So also in Neely v. McCormick, 25 Pa. 256, Knox, J., says that “ the widow has neither a general nor special property in any particular goods until after the election and appraisement.”
But even if we concede for the sake of the argument that by the death of her husband the widow acquired an absolute title to the goods in controversy, that would not help the plaintiffs without evidence that they had succeeded to that title. Is there such evidence ? That is the second question suggested under the aspect of the case now under consideration. The plaintiffs claim the property as a gift from the widow, and they were the only witnesses examined on that branch of the case. Their entire testimony will be found embodied in the following questions and answers, only premising that the declaration referred to was made soon after their father’s death, in the presence of all of them, and at their home where the furniture, being the goods in controversy, was. To Hannah: “ Q. After your father died, was there anything said to you and the rest of the children about your mother’s interest in the furniture ? A. Mother told us that the things were ours now since father died.” To Ellen: “ Q. After your father’s death, was anything said by your mother to you and your sisters as to what should be done with that property? A. She said the furniture was to be ours after father died.” To Elizabeth: “ Q. After your father died, was anything said to you children by your mother as to who should have that * property ? A. Mother said the things belonged to us children the next day after father died.” We think that this testimony standing alone, and it does stand alone, falls short of establishing a gift. The language of the mother is vague, indicating rather a denial of title than an intention to transfer it. This, in connection with the fact that there is no evidence of acceptance, or of delivery, either actual or symbolical, and with the additional fact that the mother retained possession of the furniture, leaves the theory of a gift with nothing to rest upon.
As to the hardship of turning the plaintiffs out of court, it is only necessary to refer to the remarks of Tod, J., in Lee v. Wright, 1 R. 148, a case which is in principle almost on all fours with the present. And in our sympathy for the plaintiffs we must not lose sight of the fact that to permit them to recover would be a hardship on the defendants, for a recovery in this case could not be pleaded against a rightful administrator, who might recover damages a second time : Lee v. Wright, supra, 151. See also Leber v. Kauffelt, 5 W. & S. 445; Holcomb v. Roberts, 57 Pa. 494.
1889, March 26th. Motion overruled.1
—Thereupon the plaintiffs took this appeal, specifying that the court erred:
1. In entering the judgment of nonsuit and refusing the motion to lift said judgment.1
2. In refusing the plaintiff’s offer.2
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
