LINCK v. WOLF.1

(Supreme Court of Pennsylvania. May 17, 1886.)

1. MECHANIC'S LIEN-BUILDING-ADDITION-EFFECT.

Where materials are furnished which are used in the building of an addition to a house, a lien filed against the house which was repaired, though not rebuilt or reconstructed, was properly held by the court below to be of no effect.

2. SAME DESCRIPTION-LOCATION-VALIDITY.

The description, in a lien, of the building which only stated that it was located on the south side of a public road leading from one town to another, when there was another road, shorter and more direct, between the towns, some distance away, is inaccurate and misleading, and destroys the validity of the lien.

Error to common pleas, Northumberland county.

Scire facias sur mechanic's lien filed by Jacob H. Linck against Peter Wolf, owner, or reputed owner, and Charles de Chambot, contractor. The house was described as "a brick house, 28 by 24 feet, two stories high, with kitchen attached, 16 by 16 feet, with curtilage appurtenant, and about one acre of ground." The brick house was the main building, and was not remodeled or substantially turned into a new building, but the shingles were renewed and some slight improvements made. The kitchen was rebuilt entirely. The locality was described as follows: "The said building is located on a lot or piece of ground situated in Delaware township, Northumberland county and state of Pennsylvania, on the south side of public road leading from McEwensville to Watsontown;" being the whole description as to locality. It was testified that there was a road leading directly from McEwensville to Watsontown, almost a straight road, about two miles and a half, known as the road between the two points, and that the building was on another road three miles north, by which the towns could be reached, but only by traveling about 10 miles. The court decided that the description was insufficient, and that the lien filed against the old building, which was not the one rebuilt, under Wharton v. Douglas, 92 Pa. St. 66, was void, and directed a verdict for defendants, whereupon plaintiff took this writ.

S. P. Wolverton and Wm. A. Sober, for plaintiff in error. Certainty to a common intent is sufficient, or, at any rate, locality is a question for the jury. Ewing v. Barras, 4 Watts & S. 467; Harker v. Conrad, 12 Serg. & R. 301; Springer v. Keyser, 6 Whart. 187; Shaw v. Barnes, 5 Pa. St. 18; Knabb's Appeal, 10 Pa. St. 186; Kennedy v. House, 41 Pa. St. 39. Repairs and additions may constitute a new erection. Driesbach v. Keller, 2 Pa. St. 77; Nelson v. Campbell, 28 Pa. St. 156; Lightfoot v. Krug, 35 Pa. St. 348; Pretz's Appeal, 35 Pa. St. 349; Harman v. Cummings, 43 Pa. St. 322. Lorenzo Everett and C. R. Savidge, for defendants in error.

There must be, at least, convenient certainty. Washburn v. Russel, 1 Pa. St. 499.

PER CURIAM. The learned judge correctly instructed the jury to find for the defendants. The lien was filed against the old building which

1 Reported by Charles T. Cresswell, Esq., of the Philadelphia bar.

was repaired, and not against the new addition. The description of the location of the building was not only inaccurate, but actually misleading. Judgment affirmed.

(Supreme Court of Pennsylvania. April 26, 1886.)

1. EXECUTORS AND ADMINISTRATORS-LEGACIES-ACTION AGAINST EXECUTOR ON VERBAL PROMISE TO PAY-STATUTE OF FRAUDS.

Since the act April 26, 1855, (Purd. Dig. 724, pl. 4,) a verbal promise by an executor to pay a legacy confers no right of action against the executor individually, even when there are assets. Such a promise, to be binding, must be in writing.

Testator directed that his personal estate should be disposed of in legacies to his daughters, and he directed that his son, to whom he had devised a farm, should pay, not to the daughters, but to his estate, $500, to enable the executors to pay the legacies. He had previously directed his executors to pay his debts and funeral expenses; and all the personal estate, including the money paid by the son, was not sufficient for that purpose. Held, that the executor committed no wrong in paying the debts, and not the legacies, and was not answerable to the legatees for breach of trust.

Error to common pleas, Susquehanna county.

Assumpsit, by Margaret Carroll and Edward Carroll, in right of Margaret Carroll, against James Smith, to recover the amount of a certain legacy. Patrick Smith, the owner of three farms and $800 of personal estate, and owing about $1,200, died; his will directing his executor to pay all his just debts and funeral expenses as soon as could be done after his decease. After various devises to his widow and sons, and bequests to his widow and daughters, among which was one to his daughter Margaret, the plaintiff, of $100, he further provided as follows:

"I will and bequeath to my son Owen the farm bought of Peter O'Doud, the same that Owen now lives upon. The said Owen is hereby enjoined and required to pay to my estate the sum of $500, to enable my executors to pay off the legacies bequeathed to my daughters as before stated."

And of his will he appointed the defendant, James Smith, executor. The defendant collected from Owen Smith the said sum of $500, and used the same, together with all the personal property, in paying the debts of decedent. The entire personal estate, including this sum, was insufficient to pay the debts, of which there were still about $500 due. The defendant verbally promised to pay the legacies to the daughters, and, having failed to do so, this action was brought for the recovery of the legacy to plaintiff. The referee to whom the case had been referred, reported in favor of plaintiff; exceptions filed hereto were dismissed by the court; and judgment entered in favor of plaintiff. fendant thereupon took this writ.

De

Safford & O'Donnell and W. H. & H. C. Jessup, for plaintiff in error. Since the act April 26, 1855, (Purd. Dig. 724, pl. 4.) a verbal promise by an executor to pay a legacy confers no right of action against the executor in

1Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar.

dividually. Such a promise must be in writing. Sidle v. Anderson, 45 Pa. St. 464; Okeson's Appeal, 59 Pa. St. 99: Burt v. Herron, 66 Pa. St. 494. There were numerous decisions to the contrary prior to the act, but since then they are all as above stated. This legacy was demonstrative, and the money from Owen Smith belonged to the estate, and was used in the payment of the debts of testator. It did not belong to the legatees. Brookhart v. Small, 7 Watts & S. 229; Wright's Appeal 12 Pa. St. 256; Van Vliet's Appeal, 102 Pa. St. 574; Montgomery v. McElroy, 3 Watts & S. 370; Welch's Appeal, 28 Pa. St. 363; Cryder's Appeal, 11 Pa. St. 72; Knecht's Appeal, 71 Pa. St. 333; Loomis' Appeal, 10 Pa. St. 387; Crone's Appeal, 103 Pa. St. 571. O'Neill & Post and E. L. Blakeslee, for defendant in error.

A demonstrative legacy is defined to be a bequest in the nature of a specific legacy. 2 Roper, Leg. 225; 2 Williams, Ex'rs, 1264. The act of 1855 does not apply. The defendant was a devisee, as well as executor; and, to save his property from the payment of testator's debts, used this $500, which should have gone to the payment of the legacies. This fund being set apart to pay the demonstrative legacies, the other devisees should not contribute. Barklay's Estate, 10 Pa. St. 387; Armstrong's Appeal, 63 Pa. St. 312; Knecht's Appeal, 71 Pa. St. 344; Cryder's Appeal, 11 Pa. St. 79; Scott, Intest. 325, 326; Hamilton v. Porter, 63 Pa. St. 332; Malone v. Keener, 44 Pa. St. 109.

GREEN, J. We think the radical difficulty in this case is that it is an action against one who is an executor, to hold him personally liable upon a verbal promise to pay a legacy. Since our act of April 26, 1855, (Purd. 724, pl. 4,) the decisions appear to be uniform that such a promise confers no right of action against the executor individually. Thus we said in Sidle v. Anderson, 45 Pa. St. 468:

"If there was a promise by the administrator to be personally liable, it had no other consideration than that implied in the allegation of an existing devastavit. There was no express promise to pay on any such ground, and the case of Wilson v. Long, 12 Serg. & R. 59, very clearly determines that no implied contract to pay arises out of a devastavit. This would be decisive of the case on grounds independent of the statute. But, suppose the promise rested on this ground expressly, it would be a promise by the administrator to answer the damage out of his own estate,' for the debt of another,' and this would certainly be within the statute, and not binding for want of a writing to that effect."

It is clear, therefore, that upon the theory of devastavit there could be no liability upon an implied promise, and an express promise would create no personal liability without a writing. In the following cases it was held that the existence of assets, when coupled with a verbal promise only, was not sufficient to impose an individual liability. In Okeson's Appeal, 59 Pa. St. 101, SHARSWOOD, J., said:

"The cases appear to hold that, on a promise by an executor or administrator to pay a legacy or distributive share in consideration of assets, the consideration and promise must be co-extensive. Rann v. Hughes, 7 Term R. 350, note; Pratt v. Humphrey, 22 Conn. 317. However that may be, it is clear that the executor cannot be made liable de bonis propriis on an oral promise on the mere consideration of assets. That would be to charge him upon a promise to answer damages out of his own estate, and therefore within the act of April 26, 1855, (P. L. 308.) It has been accordingly held in Hay v. Green, 12 Cush. 282, that a verbal promise by an administrator to pay a

distributive share in the estate of a decedent was within the statute of frauds, though there were assets; and in Philpot v. Briant, 4 Bing. 717, a promise, by the executor of an acceptor of a bill of exchange, to pay out of his own estate in consideration of forbearance, is held to be void if not in writing." In Burt v. Herron, 66 Pa. St. 404, we said:

"To charge the executors, upon their own promise, with proof of assets, the action must have been against them personally, and their promise in writing, by the act of April 26, 1855."

Whether, therefore, there were assets in the hands of the defendant in this case or not, his verbal promise to pay the plaintiff her legacy imposed no personal liability upon him, and no right of action was thereby conferred. This objection, as it touches the jurisdiction, is fatal at any stage of the case. Black's Ex'r v. B 's Ex'rs, 34 Pa. St. 354; Musselman's Appeal, 101 Pa. St. 169.

The argument that the legacy is demonstrative, and the defendant a trustee who appropriated it to his own use, is of no avail. The testator simply directed that his personal estate should be disposed of in legacies to his daughters, and he directed that his son Owen should pay, not to the daughters, but to his estate, $500, to enable the executors to pay the legacies. But he had previously directed his executors to pay his debts and funeral expenses, and all the personal estate, including the money paid by Owen, was not sufficient for that purpose. Doubtless the testator supposed that the money to be paid by Owen, together with the other personal estate, would enable the executor to pay both the debts and the legacies; but in this he was mistaken, and that is the plaintiff's misfortune. The legacies were not charged upon Owen's land, nor was he directed to pay the money to the daughters. Even the executor was not so directed. The money was to be paid to him simply to enable him to pay the legacies. The superior duty, however, of paying the debts must first be performed; and the personal fund, no matter how constituted, must first be applied to that purpose, in the absence of specific directions to the contrary.

These considerations render unnecessary any examination of the other assignments of error. Judgment reversed.

LIVINGOOD'S APPEAL.1

(Supreme Court of Pennsylvania. April 26, 1886.)

MASTER AND SERVANT-LIEN FOR WAGES-ACT APRIL 19, 1872- PRIORITYNOTICE.

Notice of a claim for wages, under the act April 19, 1872, (Purd. Dig. 1698, pl. 1,) to entitle the same to priority, should set forth such facts as make a case within the act, so that the officer and interested persons may know that the labor was done within the time limited, in a business defined by the act, the sum due, and that the property subject to the lien is embraced in the levy. Appeal of Frank S. Livingood from the decree of the court of common pleas of Berks county, distributing the proceeds of the sheriff's sale of the personal property of Zacharias F. Gresh.

1 Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar.

Zacharias F. Gresh rented of Frank S. Livingood certain limekilns, stone-quarries, and a farm at a certain rental per annum. On Decemiber 4, 1884, a writ of fieri facias was issued upon a judgment entered in the court of common pleas by virtue of a promissory note given by Z. F. Gresh to his father-in-law, William F. Hartranft, for $2,120, with warrant of attorney, etc., under which the sheriff levied upon all the goods and chattels of Z. F. Gresh at the time upon the premises, and sold the same for $523.37, after deduction of costs, etc. A commissioner was appointed to distribute this fund. The claimants were the landlord, Frank S. Livingood, and certain laborers, quarry-men, and a farm hand, to-wit, George Gross, Charles Clauser, Hiram F. Clauser, John L. Fritz, George Romich, Peter Haring, and Henry F. Gresh.

The notice of Henry F. Gresh, the farm hand, was as follows: "Zacharias F. Gresh, Dr., to Henry F. Gresh, for work done: June 25, 1884, to one day's hauling hay, $1.25," and so on; total, $16.27. The notice of the claim of John L. Fritz was as follows:

GRESHVILLE, December 20, 1884.

$121.90

Mr. Zacharias F. Gresh, Dr., to John L. Fritz: From August 8 up to November 22, 1884. Bushels of lime burnt by me, 10,600, at $11.50 per thousand bushels, The notice of the claim of Charles Clauser was as follows: "Zacharias F. Gresh, in account with Charles Clauser: March 29, 1884, to one day's work, $1.25;" and so on, similar items; total, $217.42.

The commissioner allowed the claims of Henry F. Gresh, John L. Fritz, and part of the claim of Charles Clauser, $48.30; and awarded the balance, after payment of costs, $287.70, to the claim of Frank S. Livingood, the landlord, which amounted to $422.78. The other laborers' claims were rejected. Exceptions to the commissioner's report were dismissed by the court; whereupon the landlord took this appeal, assigning for error the award to the above laborers, and the award to him of but $287.70, instead of $422.78.

Jacob S. Livingood, for appellant.

The claimants are not within the act April 9, 1872, as amended by that of June 13, 1883. At all events, even if they are within the acts, the notices are not sufficiently full to entitle them to priority under the act. McMillen v. Bank, etc., 1 Wkly. Notes Cas. 55; Allison v. Johnson, 92 Pa. St. 314; Pardee's Appeal, 100 Pa. St. 408; Pepper's Appeal, 2 Penny. 113.

Philip S. Zieber and Jeff. Snyder, for appellees.

The act May 1, 1861, (P. L. 553,) gives priority to laborers in Berks county. This act requires no notice, and is not repealed by that of 1872. The cases cited by appellant differ from the present. The notices here are a compliance with the act. The legislation in favor of this class of people must be liberally construed. The lien of the wages claimant extends to all the personal property of his employer. It is not confined to that used in connection with the employment. Act 1861; Act 1872; Jones' Appeal, 102 Pa. St. 285; Evans' Estate, 1 Chester Co. R. 112.

GREEN, J. All of the labor claims allowed by the commissioner and court below were fatally defective. As made out and sent to the sheriff,