Kunkel v. Kunkel

Citations

• 267 Pa. 163
• 110 A. 73
• 1920 Pa. LEXIS 830

Syllabus

<p>Wills — Legacies—Payment—Mistakes of fact and law — Advice of counsel — Payment of lapsed legacy — Recovery bach — Payee not harmed, by spending it — Evidence—Presumption—Rebuttal—Executors — Suffering loss — No record of surcharge.</p> <p>1. Money paid under a mistake of fact to one who is not entitled thereto, may be recovered back.</p> <p>2. Negligence in making a mistake of fact does not deprive a party of his remedy on account 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.</p> <p>3. The mere omission to take advantage of means of knowledge within the reach o£ the party paying money under a mistake of facts, does not prevent a recovery.</p> <p>4. That defendant had spent the money prior to the demand for its return, is no defense; it does not amount to an alteration of his legal position, as he is presumed to have the benefit therefrom.</p> <p>5. It seems that a gift of it to his mother, for whose support he had a contingent legal liability, does not represent a loss to him, which bars a recovery.</p> <p>6. A testator, who had no lineal descendants, bequeathed to a brother a sum of money “if living at the time of my death.” The brother died in the lifetime of testator, leaving a ¡son. Subsequently, one of the executors, a trust company, wrote to its counsel, saying that its coexecutor desired to pay the legacy to the son of the legatee, and that it would do so if counsel deemed that course proper. Counsel replied, acknowledging receipt of copy of will, and stating that “any devise or legacy in favor of a brother or sister of a testator who died before the latter, in case he leaves no lineal descendants, goes to the surviving brother or sister, unless the will directs otherwise. Under these circumstances, as testator left no children, and as the legatee left but one child, the legacy will be payable to the latter,” On receipt of the letter th