Conwell's Adm'r. v. Morris' Adm'r

5 Del. 299

• Court: Superior Court of Delaware
• Decided: July 5, 1850
• Status: Published

Opinion

By the Court.

Harrington, Judge.

1. The plaintiff was nonsuited at the trial on the plea of limitation. The action is assumpsit, to recover the sum of $300, which was bequeathed by Jonathan Heavilo to Susan Morris for life, and at her decease to Elias Conwell. The money was paid to Susan Morris, who lived until the 26th of September, 1845, when she died, and administration on her estate was granted to the defendant, on the 30th of September, 1845. Elias Conwell died in the life time of Susan Morris, and administration on his estate was granted to the plaintiff on the 5th of October, 1847. This suit was .brought August 10, 1849. The propriety of the non-suit, therefore, rests on this point, on the question, whether the cause of action accrued within.three years before this suit was commenced.

The argument for the defendant was, that the cause of action accrued at the death of Susan Morris, as the money was then due and payable, and this was more than three years before the action was brought; that for the plaintiff is, that no cause of action can accrue until there are parties capable of suing and being sued; and as administration on the estate of Elias Conwell was not had until October, 1847, the limitation began to run only from that time.

This is a question of authority; and seems, by the citations that have been made on the argument of this rule, to be with the plaintiff. The principle, therefore, on which the motion for a nonsuit was sustained, hesitatingly however, and with a reservation in favor ■of the present motion, has not been supported; and the nonsuit •ought to be taken off.

2. But it has been now argued that the court will not take off a .nonsuit, -though granted upon untenable grounds; if it can be shown. that the plaintiff might have been nonsuited on other grounds ; and this is true where such a defect plainly appears in the plaintiff’s •case, and continues to vitiate it, as that he must inevitably be non-suited on further trial. It would be idle to let the party into another trial, if the result of that trial must be to nonsuit him again.

Wé are, therefore, to look into the plaintiff’s declaration, to see if he has a cause of action capable of being supported.

This suit has in our view been improperly called a suit for a legacy; and hence the argument and authorities connected with that view of the case, appear to us to have been misapplied. This court has jurisdiction to maintain a suit for a legacy in such a case as this, and has maintained it in this very case, in a former suit against the administrator d. b. n. of Jonathan Heavilo ; the legacy is not by any means now, whatever it may have been when Susan Morris demanded It, the subject of a trust, and therefore the action of assumpsit, by the direct letter of the statute, lies for it, at the suit of the legatee, against the representative of the testator. But this is no such suit; and we cannot regard it as in any sense an action for a legacy. Such an action can lie only against the representative of the testator ; whereas this suit is against the representative of Susan Morris. The defendant in an action for a legacy^ is entitled to a refunding bond; but no other than the representative of the person who bequeathed the legacy, can require such a bond.

If this action, therefore, can be supported, it must be as an action ■of assumpsit for money had and received to the plaintiff’s use; and as such an action upon careful examination of the plaintiff’s declaration, (though altogether informal, and liable to a special if not a general demurrer, because it mingles up with a demand of money from Susan Morris individually, this notion, running throughout, of a demand for a legacy against her as executor,) we think we find substantial ground for supporting the action of assumpsit for money had and received; founded on her legal liability arising from the receipt of money which at her death belonged to Elias Conweli, and which she therefore received to his use; and the subsequent promise of the defendant, as her administrator to pay it. This, in truth, is all that need have been stated in the declaration; as the action of assumpsit for money had and received lies in all cases where one person receives money to the use of another. The payment of this legacy to Mrs. Morris, was for the use of Elias Conweli at and after her death; it fixed a liability and raised a consequent promise on her part to pay it; and this liability is a sufficient support for the promise which is averred to have been made by her administrator to pay it; and to entitle the plaintiff to recover against him 5n this action.

Layton, for plaintiff. Parker, Houston and Cullen, for defendant.

Rule absolute.