Work's Appeal , 1869 Pa. LEXIS 40 ( 1868 )

The opinion of the court was delivered, January 4th 1869, by

Williams, J.

This was a contest between husband and wife, each of whom claimed, as assignee, Benjamin F. Work’s share of the fund for distribution. Benjamin F. Work is the appellant’s son by a former wife, who was a daughter of the testator, William McClelland, deceased, and entitled as legatee of his maternal grandfather to the one-sixteenth part of his estate.

On the 5th of March 1866, he assigned all his interest in his grandfather’s estate to his stepmother, the appellee, in consideration of his indebtedness to her for money and clothing. Under this assignment, if valid, she was entitled to his share of the fund for distribution. His subsequent declarations, made in her absence, were not competent to establish a prior assignment of the same interest to his father, and his destruction of the assignment, with the privity of his stepmother, before making the assignment to her.

He was a competent witness to prove these facts, but his declarations were inadmissible for the purpose, and the auditor rightly decided that they were wholly incompetent to invalidate his assignment to his stepmother. It is equally clear that his subsequent assignment to his father did not vest in him any title to the estate. Having previously conveyed^ all his interest to his stepmother, he had nothing left to transfer or assign. And though he undertook, he had no power to revoke his assignment to her, or to divest her title under it. Nor was his subsequent assignment rendered valid by the assignment of his stepmother endorsed thereon, agreeing to the revocation of the assignment made by her, and transferring all her interest in the estate to her husband. Even if she had the power to make it, the evidence would have justified the auditor, as we think, in finding that it was made under duress, and that for this reason it was not valid or binding on her.

It was executed while she was under arrest, upon complaint made against her by her husband; and it was executed for the purpose of procuring her discharge from the arrest, in pursuance of his agreement to withdraw the prosecution if she would make the assignment. His withdrawing of the prosecution upon obtaining the assignment, shows the arrest to have been a mere pretext in order to procure it.

Though the auditor did not find that it was made under duress, he decided that it was void for another reason. He was of the opinion that the appellee being a married woman, had no power to transfer her rights of property by an instrument of writing executed by herself alone, and therefore that she was not bound by her assignment.

But it is not necessary to decide this question, as the appellant did not give the assignment in evidence as the foundation of his claim; nor does he now claim title under it. “ It was offered as the admission of the appellee, and of him under whom she claims title, and for no other purpose,” as the printed argument of his counsel expressly declares. Does it, then, contain any such admission as will defeat or set aside the title of the appellee ? It does not admit, or show on its face, that the assignment originally made to the appellant was prior to the assignment made to the appellee; or that it was destroyed without the appellant’s knowledge or consent ; or that the appellee or assignor was a party to its destruction. It cannot, therefore, have any more force or effect as an admission, than it has as a conveyance.

The appellant, failing to show by his own evidence any title to the fund, falls back upon the testimony of Benjamin F. Work, who was examined as a witness for the appellee, and he is undoubtedly entitled to whatever benefit or aid he can derive from his testimony in support of his claim.

His counsel maintains that the witness, in his examination in chief, stated the facts on which the appellant’s claim is based, viz., the assignment to his father; the act of procuring it from his stepmother; its destruction by him, and the assignment of the same interest to her: and he insists that from these facts the presumption arises in odium spoliatoris, that the assignment to the appellant was for the whole interest claimed by the appellee; that it was duly executed and delivered, and that it was given for a good and valuable consideration. But if the testimony of Benjamin F. Work is believed, the appellant never had possession of the assignment, nor a particle of interest under it, but was a mere trustee for his wife from whom the consideration moved, and to whom the assignment was delivered immediately after its execution.

If this be so, then there is no foundation for the presumption in odium spoliatoris, and it does not arise. The parties did no more than they had a right to do. If the husband was a mere naked trustee for his wife, and the assignment was not delivered to him, then they had the right to change the form of the instrument so as to make it conform to and express the real character of the transaction. And the evidence leaves little room for doubt that the substituted assignment to the wife did express its true character.

The appellant did not even attempt to show any consideration for the assignment arising from prior indebtedness, or from the advancement of any moneys by him at the time of its execution. If he had given any consideration for the assignment, it would doubtless have been easy for him to have shown it. The absence of any such proof is a strong circumstance tending to show that there is no equity in his claim, and that the original assignment to him was, as testified by the assignor, intended for the use and benefit of his wife. Under the evidence she was clearly entitled to the fund.

As this was the conclusion reached by the auditor in his very able report, which was confirmed by the decree of the Orphans’ Court, the appeal must be dismissed.

Decree affirmed at the costs of the appellant.