Miller's Estate ( 1893 )

Opinion bt

Mr. Justice Green,

As it seems to us this case is quite free of difficulty. It cannot be doubted, and is not questioned, that Mr. Leavenworth was bound to pay the debt of $1,300 due to Mrs. Hetty S. Miller. By his contract of purchase he agreed to pay not only the whole of the purchase money for the interest of W. M. Miller in the firm, but also the debts of the firm. While it was supposed, when the negotiations commenced, that this debt had been paid, before they were completed Mrs. Miller announced that it had not been paid, and insisted upon its payment, and thereupon Leavenworth agreed to pay it and subsequently did so. After the transaction was closed it was discovered that the checks, which, on the stubs of the firm’s check book, had been entered as being drawn directly to Mrs. Miller, were in fact drawn by W. M. Miller to his own order, and not to the order of his wife, and further that he had drawn the money from bank himself. While it is not at all probable that he did this with any fraudulent purpose, but really intended to give the money to his wife, yet in fact he did not do so, and died before he carried out his intention, if it was to that effect. His situation, therefore, at the time of his death, with reference to this matter, was, that having taken this money himself and not having charged his account with it, he was a debtor to the firm to that extent. He owed the firm the money, and the firm therefore had a right to be paid the amount of that debt out of his estate. No such payment was ever made, and therefore the firm claimed it from the estate, before the auditor. They were certainly entitled to it, unless, in some way, they had lost the right to have it. It is now contended, as it was in the court below and before the auditor, that because Mrs. Miller, in fixing the amount for which she was willing to sell out her part of her husband’s interest in the firm, estimated the assets of the firm and her husband’s share of them, by deducting from his credit account of $26,971.08 the sum of $1,300, claimed to have been received by him, and therefore the subject should be treated by the auditor and court with the same effect as if he had paid the money to the firm. But we cannot regard this as a sound contention, first, because it is of no consequence how Mrs. Miller arrived at the sum which she was willing to accept for her share of her husband’s interest, and, secondly, because in point of fact Mr. Miller’s debt to the firm on this account never was paid. The fact that he had received the money himself was not discovered until after his death, and after the sale of his interest had been made, the bill of sale signed, and possession delivered. Moreover it was not Mrs. Miller who made the sale and received the purchase money, but the Peoples Bank of Wilkes-Barre, as administrator of her husband. It is true an agreement was made between Mrs. Sophia A. Miller, the mother, Mrs. Hettie S. Miller, the wife of W. M. Miller, and George N. Carr, another member of the firm, all of the one part, and F. J. Leavenworth, of the other part, for the sale of the interests of W. M. Miller and George N. Carr in the firm to F. J. Leavenworth at private sale. But the consideration of that agreement was $43,800, of which $9,000 was to be paid to Carr, and the remaining sum of $34,800 was to be paid to the mother and widow in the proportion of $16,000 to the mother, and $18,800 to the widow. In that agreement it was expressly recited that the “ said Miller had a credit on the books of said firm individually of the sum of $26,971.08,” which was in addition to his one half interest in the firm. So that the parties made their agreement on the basis that the whole sum of $26,971.08 was the true amount of the credit of W. M. Miller on the firm books, and not that amount reduced by the sum of $1,300, which Miller owed the firm. The agreement of all the parties was in writing, signed and sealed by them all, and the bill of sale or transfer of Miller’s interest was also in writing, signed and sealed by the Peoples Bank of Wilkes-Barre, as his administrator. Both of these agreements were literally carried out and fully executed by the payment of the whole amount of the purchase money, $43,800, by Mr. Leavenworth, and its receipt and distribution by the parties entitled. In all of these transactions the debt due by Miller to the firm was not paid or provided for. Mr. Leavenworth succeeded to the rights of the firm to the extent of his interest therein, and one of those rights was the right to have W. M. Miller’s estate pay the debt of $1,300, which he undoubtedly owed to the firm at the time of his death. We think the auditor and court below fell into error in misconceiving the real question at issue. They seem to think that because Mr. Leavenworth was not misled or deceived as to the existence of the debt of the firm to Mrs. Miller, and because there was no fraud or imposition practiced upon him in that regard, the claim of the firm to have this debt paid out of Miller’s estate caunot be entertained. It would be changing the written contract of the parties, which cannot be done, because no fraud, mistake or imposition has been shown. But that is not the question. The claim of the firm does not require any change in that contract, but rather its enforcement according to its terms. The only question is, did Miller owe the firm this debt and has it been paid ? It is not disputed that he owed it, and it certainly has not been paid, and therefore it should be paid now out of his estate.

The decree of the court below is reversed at the cost of the appellee, and the record is remitted with instructions to make distribution of the fund in accordance with this opinion.