McClure v. Smith

Pennsylvania Court of Common Pleas, Philadelphia County

Decided September 29, 1838

Pennsylvania Court of Common Pleas, Philadelphia County · decided 1838-09-29

<p> Exceptions to Auditor’s Report. </p> <p>A. died in 1826, seized of real estate, having made a will. B, sued his executor, in 1837, on a promise made by the testator in his lifetime, without giving notice of the suit to the widow and devisees, and obtained judgment. The testator’s real estate was subsequently sold at sheriff’s sale, on a judgment regularly obtained for a debt due by testator in his lifetime: Held, that was not entitled to be paid his judgment out of the proceeds of sale, he not having given notice of his action to the widow and devisees, according to the 34th section of the act of 24th of February, 1834.</p>

Decided 1838-09-29

Per Curiam.—

¶1The report of the auditor must be confirmed. Sect. 34 of the act of 24th February, 1834, is imperative, that unless the widow and devisees are served with notice of the suit brought against the executor, where a claimant seeks to charge the real estate of the testator, the judgment obtained shall not be levied or paid, out of such real estate. (Stroud's Purd. tit. Executors and Administrators.) By sect. 24 the lien of the debt was gone, more than five years after the death of the testator having elapsed before the suit was brought.

¶2Exceptions dismissed.