Doebler against Snavely, 5 Watts 225

The opinion of the Court was delivered by Rogers, J. This is a suit to recover a legacy given by the will of Anthony Doebler to his daughter Elizabeth, who intermarried with Christian Snavely. The suit is brought in the name of the husband and wife, against the administrator of Henry Doebler, who was one of the executors of Anthony Doebler, the testator. The executors settled a joint account, and acknowledged a balance in their hands due to the heirs.

On this settlement, the executors are, prima facie jointly liable, and should have been jointly sued; for, if there be several executors, they should all be sued, if alive, and the survivor, if one be dead, in case they have all administered, or the defendant may plead the non-joinder in abatement. 1 Chit. PL 38. But in this action, the plaintiff alleges that the deceased executor received all the money which was set apart for the legatees, and that on this account, he, in his life time, and his personal representatives, became liable in this form of action.

However the law may be, as respects creditors, it is well settled that the actual receiver is only liable to legatees. I cannot, therefore, perceive the necessity of joining the other executor in the suit, or any difficulty in sustaining an action against the representatives of the deceased executor. Salk. 318. But, as in such an action the actual receipt of the money must be proved, is the surviving executor a competent witness for that purpose? A recovery and satisfaction in this suit would shield the witness from any claim by the legatees.

But, it is said, he would be liable for contribution, that he is equally interested, and therefore competent. But it is not clearly perceived that he would be liable to a suit for contribution, for the foundation of such an action would be the record of this recovery; for here the right of recovery is placed only on the ground that Henry Doebler was the actual receiver of the money appropriated to the payment of the legatees. He would be estopped to gainsay the record which was the foundation of this suit. In Weckerly v.

The Lutheran Congregation, 3 Rawle 180, it is held, that whenever a plaintiff introduces and makes the record of the action, and a recovery therein against himself, the foundation of his suit or the basis of his claim, in an action brought by him, afterwards, against a third person, he is not at liberty to deny the principle, upon which it appears, from the face of the record itself, that the action was decided, and the recovery had against him, as in other records, to prove that the recovery was wrong.

Now the only principle upon which the plaintiff can recover, is, by showing that the money was received by Henry Doebler, and not by the witness, and in a suit brought on the record he would be estopped to deny that principle upon which the recovery was had against him. It follows from this that the witness has such an interest as renders him incompetent to testify. The observations already made dispose of the whole cause, for on another trial the plaintiff may file a declaration instead of a statement which is required in a suit for a legacy.

It has been settled that the act of limitation does not apply to a suit for a legacy. Judgment reversed, and a venire de novo awarded.