Moody's Lessee v. Fulmer

*27 The opinion of the court was delivered by Tilghman, O. J.

This ejectment was brought by James Moody and others, children of Eobert Moody, deceased, for the recovery of a tract of land, of which their father died seized in fee simple. Eobert Moody, the father, made a will, of which he appointed his wife Abigail, Wm. Maclay and Dr. Wm. Plunket, executors, and authorized them, or any -two of them, to sell his land, or such parts thereof as might be necessary for the payment of his debts and support of his family. The executors all renounced, and administration c. t. a., was committed to Eobert Eobb, John McPherson, and David Ireland. A sale of the land in dispute was made by these administrators, who executed a deed for the same, containing a warranty against themselves and their heirs, and the heirs of the said Eobert Moody. The proceeds of sale were faithfully applied according to the directions of the will, and the defendant, who has been long in possession, has made valuable improvements. The plaintiffs, apprehending, that although their father’s land had been unlawfully sold, yet as his estate had received the benefit of the purchase money, it would be unjust to turn off the purchaser without full compensation, brought $2,000 into court, to be applied to the reimbursement of principal and interest; and further, they agreed to pay the value of all permanent improvements, deducting the profits received by the defendant — such value to be ascertained by arbitration, or otherwise,'under the direction of the court; and execution on the judgment to be obtained in this suit, to be stayed till full payment should be made, of the sum found due from them on the principles aforesaid. This offer of the plaintiffs was made during the trial — in the course of which several exceptions were taken on points of evidence, as well as a general exception to the charge of the court.

1. The first exception was to the letters of administration c. t. a. offered by the defendants. This exception was founded on a certificate from the Eegister of Wills, that the administrators had given no security; the plaintiffs’ counsel contending, that by the act of 1713, the letters of administration were void, because no security was given. On the other hand, it was argued by the counsel for the defendant, that the certificate of the register was no proof that security had not been given, and even if it was, that the act of 1713 did not extend to *28 administrators c. t. a., but was confined to cases- of intestacy. My opinion on this exception, depends on considerations of a more general nature, which will apply to other exceptions afterwards taken in the progress of the cause. The plaintiffs themselves had confessed an equity in the defendant, and, under the blended jurisdiction of law and equity, with which our courts are vested, it is necessary for the court and jury to consider not only the law, but the equity of the case. Now, in order to explain the defendant’s case, it was important to show the manner in which he came into possession — that he was no wanton trespasser, but a purchaser from those who had at least a fair color of lawful authority — that he had paid full value for the land, and his money had been so applied as to be of essential service to the plaintiffs, and a complete fulfilment of their father’s will. It was proper, therefore, to establish the foundation of his defence, by showing that his title was derived from persons who claimed the power of executing the trust in Bobert Moody’s will, by virtue of letters of administration c. t. a. What was the legal effect of those letters, would be a different question. The defendant might have a strong equity, although the administrators had no legal right to sell. I am therefore' of opinion, that the letters of administration were properly received as evidence.

2. The defendant next offered John McPherson, one of the administrators, as a witness, having first produced a deed of release from John Fulmer, under whom the defendant claims. He was objected to, on the ground of interest, but the Court of Common Pleas overruled the objection, and admitted him; Before he received the release from Fulmer, he was interested, because of the warranty in the deed from Moody’s administrators, to which he was a party. But the release removed this objection. If he was any otherwise interested, it was 'because he was liable to an action under the act of assembly of 1718, for having undertaken to act as an administrator without giving security. In this point of view, if the plaintiffs lose their land, he will be liable to their action for damages. It is his interest, therefore, that the plaintiffs should recover; so that when he comes forward as a witness against them, he is to swear against his own interest, -which it is competent for him to do, if he pleases, although he could not be compelled to it. I am therefore of opinion that he was a good witness.

3. The next exception was to the competency of David Ireland, another witness offered by the defendant. The objection to this witness being precisely the same as that to McPherson, I shall barely say that, in my opinion, he was competent.

4. The defendant then offered evidence of declarations by Lucy Hood, wife of John Hood,- and one of the children of *29 Robert Moody. Both husband and wife are plaintiffs in this suit. The plaintiffs objected to this evidence, but the court admitted it. Husband and wife are considered as one person in law, and, from motives of policy, are not permitted to testify for, or against, each other. It is not on account of interest only that they are excluded, but in order to prevent family harmony from being broken. If either of those persons should give testimony in open court affecting the character or the interest of the other, deadly feuds might be the consequence, and as the law protects the husband from his wife’s testimony in court, so does it likewise from her declarations or confessions out of court. She can have no will of her own — she can exercise no right over her oion property without his consent. Her deed, under hand and seal, would be no evidence — much less then should her verbal declarations be. Her husband had á right to make use of her name, as a plaintiff in this action ; and her approbation or disapprobation was a matter not proper to be given in evidence. Whether the jury paid any regard to the evidence, it is impossible for us to say; nor have we any right to conjecture. The only question is, was it legal evidence? For the reasons which I have given, I am of opinion that it was not.

5. The fifth exception, which was to the admission of John Vandyke, a witness produced by the defendant, was very properly relinquished. Vandyke holds land under the same title as the defendant, but has no direct interest in the event of this suit. The objection, therefore, went only to his credibility.

6. The sixth exception was to the admission of sundry deeds, by which title was derived from Moody’s administrators to the defendant. My opinion here is governed by the principles laid down in considering the first exception. The defendant had a right to show every circumstance connected with his coming to the title or possession of the land, because his title was greater or less, according to the circumstances. It was proper, therefore, that the court and jury should hear them.

The exception to the judge’s charge remains to be considered, which may be reduced to one point, viz: Whether the executors named in the will of Robert Moody had a right to sell his lands by virtue of the power contained in his will, after they had all renounced, and administration c. t. a. had been committed to others. It was the opinion of the judge, that although the administrators bad executed a deed of conveyance, .yet there was ground for concluding, from the evidence, that they acted in the capacity of agents for the executors, and under their direction. It was his opinion, also, that the executors had power to sell, and he put the cause upon this point, to the jury, for he agreed with the plaintiffs’ counsel that the admin *30 istrators had no authority of their own, the letters of administration being void, for want of security. As we have no court of chancery to compel the execution of a trust, it is congenial to the spirit of our law to encourage the voluntary execution, and to be liberal in the construction of powers to sell for useful purposes. Nothing could be more useful than the purpose for which the executors of this will were authorized to sell, viz: the maintenance of the family and payment of the debts of the testator. The trust, operating upon land, might be very conveniently executed by persons who had not the administration of the personal estate. The administrators c. t. a. could not sell, because the testator had placed no confidence in them — there is an authority expressly to this point in 8'Yiner, 465 (P. C.), pi. 2. But the executors, although they renounced the administration, might, without inconsistency, execute the trust respecting the land. Por this also there is express authority": • Swinb. 408; 8 Viner, 466 (P. E.) pl. (cites 15 H. 7 , 12 b.). I have examined the Year Book, and the citation is correct. Upon the strength of these authorities, I am of opinion that the executors had power to sell, after they, had renounced the administration of the personal estate. In future, there will be no difficulty in cases of this kind, the power to sell having been vested in the administrators c. t. a. by the act of 12th Mar. 1800.