Opinion by
Mr. Justice Moschzisker,
Plaintiffs sued in assumpsit to recover $5,000 alleged [166]*166to have been paid defendant under mistake of fact; in accordance with binding instructions, a verdict was rendered for defendant, and plaintiffs have appealed from judgment thereon.
B. S. Kunkel died October 1, 1911, testate, without lineal descendants; by his will, dated 1908 and republished by codicil in 1911, he provided, inter alia, “I give to each of my brothers, Wm. F. Kunkel and Charles H. Kunkel, if living at the time of my decease, the sum of five thousand dollars”; the present plaintiffs were appointed executors.
William F. Kunkel died March 5, 1910, leaving an only child, William B. Kunkel, the present defendant, to whom plaintiffs paid the $5,000 which would have belonged to his father had he survived testator; this was done under circumstances we shall briefly relate.
The trust company executor wrote John G. Johnson, Esq., who represented the estate, saying its coexecutor desired to pay the legacy in question to William B. Kunkel, and it would do so if counsel deem that course proper. Mr. Johnson replied, acknowledging a copy of the will and stating: “Any devise or legacy in favor of a brother or sister of a testator who dies before the latter, in case he leaves no lineal descendants, goes to the surviving issue of the dead brother or sister, unless the will directs otherwise.”
The vice-president of the trust company, who had the matter in charge and had corresponded with Mr. Johnson, upon receipt of his letter, without making any “inspection or examination of the will,” paid the legacy to defendant; subsequently counsel advised plaintiffs this was a mistake, since William B. Kunkel’s father had not survived testator. The present suit followed the refusal of a demand for repayment.
The Act of July 12, 1897, P. L. 256, provides that any devise or legacy in favor of a brother or sister, when a testator leaves no lineal descendants, “shall not be [167]*167deemed or held to lapse” by reason of the decease of the devisee or legatee in the lifetime of the testator, if the former leaves issue surviving the latter, “saving always to every testator the right to direct otherwise.”
That the present testator did “direct otherwise” is apparent, for he expressly provides that, in order to take, the legatees must be living at the time of his decease; in other words, that the legacies, respectively, shall lapse if either of the brothers predeceases him. This is th.e plain meaning of the will, leaving no possible room for legal construction to the contrary; and, when the letter from counsel is read attentively, it is clear he advised on the law as we have stated it.
True, immediately after his correct legal advice, Mr. Johnson adds: “Under these circumstances, as Benjamin S. Kunkel left no children, and as William F. Kunkel left but one child, the legacy will be payable to the latter”; but he evidently assumed, as a matter of fact, that Benjamin S. Kunkel’s will did not “direct otherwise,” and the fourth assignment of error complains because plaintiffs were refused permission to show that, at the time the letter was dictated, the writer thereof “did not have before him the will of Benjamin S. Kunkel and did not look at the will or know that the legacy was conditional.” We see no necessity for ruling on this assignment, however, for, as already said, it is apparent Mr. Johnson made no mistake of law; his mistake was a misapprehension of the facts (referred to in his letter as “circumstances”) to which the law, as he correctly stated it, was to be applied. The phrase “under these circumstances,” which Mr. Johnson uses, to square with his preceding statement of law and subsequent advice as to payment, can refer only (since he mentions no circumstances concerning the provisions of the will) to an assumed set of circumstances, or facts— in regard to testator’s expressed wishes — which he plainly misapprehended.
[168]*168The sole basis for th.e claim that the payment was made under a mistake of law, is that it must be presumed Mr. Johnson read the will and pronounced his legal view as to its proper construction; though as we have said, his written opinion furnishes convincing evidence to the contrary. There is no such presumption; but, if there were, to afford it the effect claimed would give greater weight to that which, at the most, could be only evidence of a possible fact, than to what the document in question shows to be the fact itself, in violation of the rule that a presumption always gives way to a matter of fact when the latter is shown.
The remaining assignments of error, in one form or another, question the propriety of the binding instructions and judgment for defendant; they bring us to a consideration of the real point in the case, namely, whether the money was actually paid under mistake of law or fact. As to this, it is apparent the mistake was made by thinking, and acting upon the hypothesis, that the will did not provide against a lapse in case of death of the legatee in the lifetime of testator, whereas the fact is directly to the contrary. This of course, presents a mistake of fact; and the opinion of the court below, dismissing plaintiff’s motion for judgment n. o. v., does not rule otherwise. It is there said: “The facts are not in dispute” and, “The letter [of Mr. Johnson] states a recognized rule of law,” but the opinion goes on to announce, as a general principle, that a “mistake of fact cannot be pleaded successfully where all the parties concerned knew or had means of ascertaining the facts”; and, acting on this theory, the learned trial judge concludes by saying, “We are unable to discover any fact warranting the entry of judgment in favor of plaintiffs.”
The view of the court below is not in accord with the established law of this State. In Union Trust Co. of N. Y. v. Gilpin, 235 Pa. 524, we adopt, and affirm, per curiam, the opinion of Judge Newcomb. There, as here, on a mistaken assumption of fact, the amount of a legacy was [169]*169paid to one not entitled thereto, although (again as here), the will disclosing the real facts of the case, was always at hand. Recovery was allowed on the theory that the mistake was one of fact, arising through carelessness in reading the will. While this issue was submitted to the jury, the court states (p. 529) : “Undoubtedly their conclusion was correct — no one could read the will attentively without being forcibly impressed...... that a blunder had been made......; the final answer here was not only consistent with the evidence, but it is not apparent how there could have been any escape from it.” In other words, the point as to the character of the mistake might have been ruled as a matter of law; and the circumstance that plaintiff had ready and ample means of information, which, if taken advantage of, would have avoided the wrong payment, was not sufficient to prevent recovery.
Again, our Superior Court, by a well considered opinion, in Girard Trust Co. v. Harrington, 23 Pa. Superior Ct. 615, 620, also ruled that the circumstance of the person who made the payment of money under mistake of fact, failing “to take advantage of the means of knowledge within his reach......is not sufficient to disentitle him to recover it back,” citing Mr. Justice Trunkey in Meredith v. Haines, 14 W. C. N.
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Opinion by
Mr. Justice Moschzisker,
Plaintiffs sued in assumpsit to recover $5,000 alleged [166]*166to have been paid defendant under mistake of fact; in accordance with binding instructions, a verdict was rendered for defendant, and plaintiffs have appealed from judgment thereon.
B. S. Kunkel died October 1, 1911, testate, without lineal descendants; by his will, dated 1908 and republished by codicil in 1911, he provided, inter alia, “I give to each of my brothers, Wm. F. Kunkel and Charles H. Kunkel, if living at the time of my decease, the sum of five thousand dollars”; the present plaintiffs were appointed executors.
William F. Kunkel died March 5, 1910, leaving an only child, William B. Kunkel, the present defendant, to whom plaintiffs paid the $5,000 which would have belonged to his father had he survived testator; this was done under circumstances we shall briefly relate.
The trust company executor wrote John G. Johnson, Esq., who represented the estate, saying its coexecutor desired to pay the legacy in question to William B. Kunkel, and it would do so if counsel deem that course proper. Mr. Johnson replied, acknowledging a copy of the will and stating: “Any devise or legacy in favor of a brother or sister of a testator who dies before the latter, in case he leaves no lineal descendants, goes to the surviving issue of the dead brother or sister, unless the will directs otherwise.”
The vice-president of the trust company, who had the matter in charge and had corresponded with Mr. Johnson, upon receipt of his letter, without making any “inspection or examination of the will,” paid the legacy to defendant; subsequently counsel advised plaintiffs this was a mistake, since William B. Kunkel’s father had not survived testator. The present suit followed the refusal of a demand for repayment.
The Act of July 12, 1897, P. L. 256, provides that any devise or legacy in favor of a brother or sister, when a testator leaves no lineal descendants, “shall not be [167]*167deemed or held to lapse” by reason of the decease of the devisee or legatee in the lifetime of the testator, if the former leaves issue surviving the latter, “saving always to every testator the right to direct otherwise.”
That the present testator did “direct otherwise” is apparent, for he expressly provides that, in order to take, the legatees must be living at the time of his decease; in other words, that the legacies, respectively, shall lapse if either of the brothers predeceases him. This is th.e plain meaning of the will, leaving no possible room for legal construction to the contrary; and, when the letter from counsel is read attentively, it is clear he advised on the law as we have stated it.
True, immediately after his correct legal advice, Mr. Johnson adds: “Under these circumstances, as Benjamin S. Kunkel left no children, and as William F. Kunkel left but one child, the legacy will be payable to the latter”; but he evidently assumed, as a matter of fact, that Benjamin S. Kunkel’s will did not “direct otherwise,” and the fourth assignment of error complains because plaintiffs were refused permission to show that, at the time the letter was dictated, the writer thereof “did not have before him the will of Benjamin S. Kunkel and did not look at the will or know that the legacy was conditional.” We see no necessity for ruling on this assignment, however, for, as already said, it is apparent Mr. Johnson made no mistake of law; his mistake was a misapprehension of the facts (referred to in his letter as “circumstances”) to which the law, as he correctly stated it, was to be applied. The phrase “under these circumstances,” which Mr. Johnson uses, to square with his preceding statement of law and subsequent advice as to payment, can refer only (since he mentions no circumstances concerning the provisions of the will) to an assumed set of circumstances, or facts— in regard to testator’s expressed wishes — which he plainly misapprehended.
[168]*168The sole basis for th.e claim that the payment was made under a mistake of law, is that it must be presumed Mr. Johnson read the will and pronounced his legal view as to its proper construction; though as we have said, his written opinion furnishes convincing evidence to the contrary. There is no such presumption; but, if there were, to afford it the effect claimed would give greater weight to that which, at the most, could be only evidence of a possible fact, than to what the document in question shows to be the fact itself, in violation of the rule that a presumption always gives way to a matter of fact when the latter is shown.
The remaining assignments of error, in one form or another, question the propriety of the binding instructions and judgment for defendant; they bring us to a consideration of the real point in the case, namely, whether the money was actually paid under mistake of law or fact. As to this, it is apparent the mistake was made by thinking, and acting upon the hypothesis, that the will did not provide against a lapse in case of death of the legatee in the lifetime of testator, whereas the fact is directly to the contrary. This of course, presents a mistake of fact; and the opinion of the court below, dismissing plaintiff’s motion for judgment n. o. v., does not rule otherwise. It is there said: “The facts are not in dispute” and, “The letter [of Mr. Johnson] states a recognized rule of law,” but the opinion goes on to announce, as a general principle, that a “mistake of fact cannot be pleaded successfully where all the parties concerned knew or had means of ascertaining the facts”; and, acting on this theory, the learned trial judge concludes by saying, “We are unable to discover any fact warranting the entry of judgment in favor of plaintiffs.”
The view of the court below is not in accord with the established law of this State. In Union Trust Co. of N. Y. v. Gilpin, 235 Pa. 524, we adopt, and affirm, per curiam, the opinion of Judge Newcomb. There, as here, on a mistaken assumption of fact, the amount of a legacy was [169]*169paid to one not entitled thereto, although (again as here), the will disclosing the real facts of the case, was always at hand. Recovery was allowed on the theory that the mistake was one of fact, arising through carelessness in reading the will. While this issue was submitted to the jury, the court states (p. 529) : “Undoubtedly their conclusion was correct — no one could read the will attentively without being forcibly impressed...... that a blunder had been made......; the final answer here was not only consistent with the evidence, but it is not apparent how there could have been any escape from it.” In other words, the point as to the character of the mistake might have been ruled as a matter of law; and the circumstance that plaintiff had ready and ample means of information, which, if taken advantage of, would have avoided the wrong payment, was not sufficient to prevent recovery.
Again, our Superior Court, by a well considered opinion, in Girard Trust Co. v. Harrington, 23 Pa. Superior Ct. 615, 620, also ruled that the circumstance of the person who made the payment of money under mistake of fact, failing “to take advantage of the means of knowledge within his reach......is not sufficient to disentitle him to recover it back,” citing Mr. Justice Trunkey in Meredith v. Haines, 14 W. C. N. 364, 366, to this effect: “Money paid by the plaintiff to the defendant, under a bona fide forgetfulness of facts which disentitled the defendant to receive it, may be recovered back; it is not sufficient to prevent a party from recovering money paid by him under a mistake of fact, that he had the means of knowledge of the fact, unless he paid it intentionally, not choosing to investigate the facts (Kelly v. Solari, 9 M. & W. 54). That was a case where the directors of a life insurance company had been informed the policy was forfeited in the lifetime of the insured, and, after his death, having forgotten the fact, paid the money on demand of the administratrix......Negligence in making a mistake does not deprive a party of his remedy on [170]*170account thereof; it is the fact that one by mistake unintentionally pays money to another to which the latter is not entitled from the former, that gives the right of action: Lawrence v. American National Bank, 54 N. Y. 432.”
In McKibben et al. v. Doyle, 173 Pa. 579, 581, we say: “The mere omission to take advantage of means of knowledge within the reach of the party paying [money under mistake of fact] does not prevent a recovery.”
It is stated in 22 A. & E. Ency. of Law, 624, “Where money is paid under mistake of fact, it is no defense to an action for its recovery that the mistake arose through the payer’s negligence, if such negligence caused no harm to payee”; but defendant contends that, since he had parted with the $5,000 prior to a demand for its return, the negligence of plaintiffs, in paying the money, has caused him such harm as to estop them from recovery. This contention has no merit. Union Trust Co. v. Gilpin, supra, (p. 527), shows an offer to prove defendant had “meantime spent the money so that repayment would now be a hardship,” and it was held immaterial, the court saying (p. 529) : “There is neither reason nor authority to support the theory that the mere fact of the money having been spent amounts to an alteration of defendant’s legal position.” We see no reason here for departing from that position; if defendant spent the money, presumably he has either the things which it purchased or the benefit therefrom; or, if, as intimated in a refused offer of proof, he set the fund aside for the benefit of, or gave it to, his mother (for whose support he had a contingent legal liability), this cannot fairly be said to represent a loss to him, which bars plaintiffs. In brief, while no doubt there was negligence connected with the payment, and Mr. Johnson’s letter may have misled the trust company into its carelessness, yet there is no evidence the legacy was intentionally paid without regard to, or waiving the controlling facts. Plaintiffs derived no benefit from the transaction, and no facts [171]*171appear which, in equity and good conscience, either entitle defendant to retain the money or estop plaintiffs from recovery; the court helow erred in ruling otherwise.
Appellee attempts to invoke another matter of defense by raising the objection that plaintiffs are not formally named in the record as executors, and, since there has been no surcharge of the $5,000, they have not suffered a loss and cannot recover. As to this, it is sufficient to say the record does not show whether or not plaintiffs have been surcharged; and, finally, no such defense as here attempted having been raised in the affidavit of defense, or, so far as the record indicates, at trial, it will not be considered by us.
We have examined all the authorities cited — upon what constitutes mistakes of law and fact — and find none of them in conflict with our present decision that this case presents a mistake of fact.
The first three assignments of error are sustained; the judgment is reversed and the record is remitted to the court below with directions to forthwith enter judgment for plaintiffs.