Commonwealth ex rel. Roddy's Administrator v. Kreager , 1875 Pa. LEXIS 167 ( 1875 )

Mr. Justice Gordon

delivered the opinion of the court, May 24th 1875.

Kreager and his co-recognisors defend on the ground that, at the time of the partition in 1871, by an arrangement with Anne Roddy, for herself and her sisters, he was induced to accept the property at the appraisement as a trustee for these parties, and that, whilst by the records, the property appears to be vested in Rachel Kreager, for whom he acted under a power of attorney, yet in fact he accepted for all the sisters, including Anne Roddy, whose administrator issued the sci. fa. in this case, and hence the estate was equitably vested in them, and therefore, as to them, he and his co-sureties ought not to be held on their recognisance. To support this position the declarations of Anne Roddy made, not to or in Kreager’s presence, but to strangers, about the time of and after the partition, were introduced, and tended to prove that she expressed a desire that Kreager should accept the farm at the appraisement for herself and sisters, that she was willing to execute an agreement in order to carry out that desire, and that she subsequently said that Kreager had so accepted.

The first difficulty that occurs in this proposition as an available defence, saying nothing about the Act of 1856, is that it contains nothing tending to show that either her sisters or Kreager ever agreed to become parties to such an arrangement. Hence it never assumed the form of a contract and could therefore bind no one. The second trouble is, that Kreager having no interest in the estate of Sarah McNeal, had no power to accept for any one except his daughter-in-law, Rachel Kreager, who had executed a power of attorney to him for that purpose. So, if we suppose such a contract as that alleged, it came to naught through the want of power in Kreager to execute it. Finally, the property was accepted for and solemnly awarded to Rachel Kreager, in whom the title then and there vested, if there is any virtue in the decree and records of a Pennsylvania orphans’ court. Kreager, on this showing, holds nothing in the premises either for himself or any one else, and it follows, that were we to permit this judgment to stand, Anne Roddy’s estate would get neither money nor land. A result hardly warranted by strict justice.

The judgment is reversed, and a venire facias de novo is awarded.