Wilson v. Smith

Citations

• 117 F. 707
• 11 Pa. D. 665
• 1902 U.S. App. LEXIS 5127

Syllabus

<p>1 Legacies—Ademption.</p> <p>A gift made subsequent to the date of a will is to be taken as an ademption of a legacy there bestowed only when the testator stands in loco parentis. A legacy of $4,000 to a nephew is therefore not adeemed by the testator subsequently loaning him $5,000, which he ultimately turned into a gift.</p> <p>2. Set-Off—Claim Barred by Limitations—Following State Decisions.</p> <p>In a proceeding begun in a state court to recover a legacy by a remedy given by the state statute, it will be held by the federal court to which it has been removed, in conformity to the decisions of the state courts, that a claim barred by the statute of limitations cannot be set off against such legacy.</p> <p>S. Discontinuance—Retraxit.</p> <p>A discontinuance is not a retraxit barring another action, though counsel had agreed to the facts, and submitted them to the court for its opinion as on a special verdict.</p> <p>4. Res Judicata.</p> <p>A judgment of the orphans’ court dismissing a petition for an account, the object of which is to produce a fund out of which a legacy can be realized, is conclusive against him in a proceeding to recover the legacy begun in the common pleas having concurrent jurisdiction.</p> <p>5. Laciies.</p> <p>A proceeding in tne nature of a bill to collect a legacy will be dismissed for laches, nothing having been done for over nine years after the refusal of the executor to pay it, and the estate having in the meantime been distributed, though the legatee, immediately on refusal of the executor, placed the claim in the hands of an attorney for action.</p>