Masterson v. Masterson

5 Rawle 137, 1835 Pa. LEXIS 22

• Court: Supreme Court of Pennsylvania
• Decided: February 13, 1835
• Status: Published

Opinion

Per Curiam.

It has been determined that an action for a legacy may be brought against an executor, in a representative capacity, as in Foulk v. Brown, 2 Watts, 209, determined at the last term for Harrisburg, which was an action of debt in the detinet. In other respects its features were less distinct, but the question being open to construction, was decided in a way best calculated to preserve the constitutional franchise free from impediment. Can the action before us be so considered ? The foundatiori of it is the defendant’s promise, not the will. But as executors cannot promise or covenant as such, so as to make themselves liable as executors, they are liable in a representative character, only on the contract of their testator. Naming them as such, though. a circumstance to be weighed in a doubtful case, such as Foulk v. Brown, is by no means decisive; to be conclusively so, the declaration must be framed on the will, and not on any evidence of responsibility subsequent to it. The defendants therefore, being sued on their own promise, were not entitled to appeal without bail.

Judgment affirmed.