Elliot's Appeal

The opinion of the court was delivered, by Read, J. — In the month of March 1860 Mrs. Margaret Elliott became the owner of a house and lot at the south-east corner of Twentieth and Market streets, in which she, her husband and children resided. In one room of the house the husband kept a tavern, which he continued to do until his death on the 19th of January 1867. Mrs. Elliott kept the tavern for eleven months after his decease, and then leased the whole of the premises for five years at $1200 per annum, the lessee paying her $1000 in consideration of extending the lease for so long a period. As administratrix she has accounted for all the personal property of the decedent, but the auditor and the court below have surcharged her with the $1000 as the price of the good-will of the tavern stand. All the cases cited by the auditor and on the part of the appellees differ from the present case in a very important particular, that Mrs. Elliott is the actual owner of the house and tavern stand, and derives no interest from the decedent in either. The good-will of an inn or tavern is local, and does not exist independent of the house in which it is kept. The decedent had no leasehold interest which his personal representative could sell, and of course no goodwill which could be assets in her hands. The house and tavern stand belonged solely to Mrs. Elliott, and if she chose to keep the tavern, and finally to lease it with permission to use it as a tavern, the profit is hers as arising from the use she makes of her own property. Decree of Orphans’ Court reversed so far as respects the surcharge of $1000, and record remitted with directions to the court to amend the decree accordingly.