Headley v. Renner

Pee Cueiam:

We are asked to reverse this judgment for the reason, inter alia, that the question of law was not properly reserved. This point should have been made at the time of the reservation. It will not do to acquiesce in the action of the court below, and then come here to complain of it. “ When no exception is taken below to a point reserved, the presumption is that it was assented to as a true statement of the facts: ” Insurance Co. v. Insurance Co., 71 Pa. 31. As the court entered judgment on the verdict, there is nothing here to show that it was error.

The third assignment alleges that the court erred in not answering defendant’s points. This may be disposed of by the single remark that the assignment is not in accordance with the Rules of Court, and will not be considered. .

This leaves remaining only the question of jurisdiction. It was urged that, as the legacy was a charge on the land, the remedy of the plaintiffs was exclusively in the Orphans’ Court. This objection does not appear to have been taken in the court below, and will not avail here, for the • plain reason that the plaintiffs are not proceeding against the land. If they were, the law is plain that they must proceed in the Orphans’ Court. They are proceeding to enforce the personal liability of the defendant, resulting from his acceptance of the land. The law is thus stated in Etter v. Greenawalt, 98 Pa. 422: “Where a person accepts a devise which is coupled with a direction by the testator that a sum certain shall be paid by the devisee to a third party, he thereby becomes subject to a. personal liability to pay said sum, which may be enforced against him in an action of debt instituted by said third party.” To the same effect is Eyre’s App. 106 Pa. 184.

Judgment affirmed.