Wesco's Appeal

The opinion of the court was delivered, March 26th 1866, by

Read, J.

This case comes before us in a very unsatisfactory form. The claim of the widow is not stated in a distinct and precise form, nor any facts material to a decision of the case found by the auditor, who simply reports the evidence before him as annexed to bis report. He decides against the claim in this manner : “ After hearing the proofs, allegations and arguments of counsel, the auditor decided not to allow the said claim, and therefore reports accordingly.”

He does not say whether his decision is based upon the law, or the facts, or both, and upon exceptions to the report, the court below assign no reason but simply dismiss the exceptions, and confirm the report of the auditor.

We are therefore left to grope our way through the testimony as well as we can.

The money received from the estate of the widow’s former husband was received long before the Act of 1848, and if taken by the testator was his property. The $1009.66 received by the appellant was also the property of the husband if he chose to take it, as it was due before the Act of 1848 ; but the evidence shows it was paid to her, and it is not shown that it went into his hands.

Under this view, the declarations of indebtedness apply only to the first sum, and this in a vague and indefinite form, such as not in any way to come up to the distinct line marked out by our decisions. “ In a word, the disclaimer of "conversion by the husband to his own'use of his wife’s money must be clearly proved, either by acts or declarations at the time, or by subsequent admissions, which leave no doubt of the intent at the time:” 7 Casey 454. The admissions must be deliberate, precise and consistent with each other, which is not the case here, and whatever doubts may be thrown over it by the testimony, it is not sufficient to induce us to reverse the decision of the auditor and the court below.

But supposing it to be a debt for which the husband’s estate is liable to the widow, it is objected that the testator has satisfied it by a legacy to her exceeding the amount of the debt.

The testator in his will, dated 23d December 1861, bequeaths to his wife a legacy in these words: “ Second, I direct that my wife shall be paid the sum of two thousand dollars out of the first moneys that shall come to the hands of my executors.” This legacy is not contingent or uncertain, and is payable immediately, so that it fulfils all the requisites which are necessary to make it a satisfaction of the debt. Nor would the subsequent provision for its payment seem to change this result.

“ And to carry out this intent, I direct that my executors shall sell at public sale, immediately after my death, my lots at Wesco Station, numbers four, ten, sixteen and seventeen, and of the proceeds of said sale my said wife Sarah shall be paid the one-half thereof on account of said two thousand dollars.”

Upon the whole, we cannot say the court below was in error. We would remark that an auditor’s report should find the facts, and not simply report the testimony taken by him.

Decree affirmed.