Frauenfelt's Estate

3 Whart. 415, 1838 Pa. LEXIS 200

• Court: Supreme Court of Pennsylvania
• Decided: April 9, 1838
• Status: Published

Opinion

The opinion of the Court was delivered by

Sergeant, J.

The question is, whether' the Court below were right in allowing the executors a credit for the amount of the bond of Jonathan Brown, in favour of George Beers, assigned to George Ihrie, and paid by the executors to Hme. Had there been any evidence of authority or assent by Brown to this payment, or even a ratification of it after it was made, it might have been deemed a payment of so much- on account of the' legacy bequeathed to his wife. But there is not the least ground for alleging this: on the contrary, the evidence shows that he explicitly denied the authority of the executors, and condemned their proceedings. A debtor cannot, at his own will and pleasure, apply the money he owes, in payment of a debt due by Ms creditor, to a third person, without the assent of such creditor. The Court below seem to have thought, that the conduct of Brown, in withholding the bond from the executors, after refusing to comply with the terms -on which it was delivered to him, was tantamount to a ratification of their act in paying off the bond. 'This conduct may have been very improper; but the executors had their remedy, by an action against him; and it is impossible to consider a positive denial of their authority, an explicit disclaimer of their acts, as an assent to those acts. It is directly the reverse. We are- therefore of opinion, that the Court below were wrong in confirming the auditor’s report and allowing this credit to the executors : and that the sum credited should be disallowed.

Decree accordingly.

Cited by Counsel, 8 Watts & Sergeant, 118 ; 2 Barr, 470.