Schall v. Fogel

Citations

• 2 Monag. 376
• 16 A. 820
• 1889 Pa. LEXIS 1382

Syllabus

<p>Benj. Fogel died leaving to survive him, a widow, three sons and three daughters. By his will, he devised certain realty to each of his sons charged with an equal legacy to each daughter. He also devised to his son William his homestead, subject to the right of the widow to live there for life, and, after the death of the widow, William was to pay $3,600 for the same, in three annual installments of $1,200 each, one of these to be paid to each of the daughters. The rest of the estate was to be divided equally between the six children. The daughters filed a caveat against the will, but subsequently withdrew it, and assigned, for a valuable consideration, all their right, title and interest, in and to, “ all money or monies now due or hereafter falling due to them, or either of them, as legacies or distributive shares in the estate” to William, Willoughby and John, sons of the testator. After the. death of the widow, Willoughby’s executors brought an action of assumpsit against William, to recover his share in the two accrued payments of $1200 each, the consideration for the homestead, which, under the will, was to have been paid to the daughters, the sons claiming that the joint interests in legacy and assignment had been severed. A release by John of all claims on account of the settlement of the estate and the installments under the assignment was given in evidence. The court charged, in effect, that the will and assignment gave the interests jointly, and before there could be a recovery, it must appear that there had been a division of the interests, leaving this question to the jury. Held, on verdict and judgment for defendant, to be no cause for reversal.</p> <p>In such case, it was not error to offer in evidence a note drawn by the widow of Willoughby, who was also an executrix, to the order of the defendant, offered, notas a set-off, but as evidence to defeat the plaintiff’s claim by showing that, in a settlement of Benjamin’s estate, Willoughby had receive