Baeder's Estate

Opinion by Mr. Justice Brown, The assignment of Bertha L. Baeder, the appellant, to Howard R. Kern is void for want of consideration. This was the first and correct view of the court below and ought to have been adhered to on the exceptions to the adjudication. The consideration moving to the appellant in executing the assignment with her husband was the procuring of a conveyance to her by Kern of twelve properties in the city of Philadelphia, having a value above the incumbrances against them .of $29,200, and then follows a consideration of the husband’s existing indebtedness to the assignee of $10,000. Though the assignment acknowledges the receipt of the conveyance of the properties, such acknowledgment is not conclusive: Nichols v. Nichols, 133 Pa. 438; McPherran’s Estate, 212 Pa. 425. Under competent evidence the court found as a fact that there had been no conveyance of the properties to the appellant; but because the assignment was to secure to Kern the payment of $10,000 of the husband’s existing indebtedness, it was held to be valid for that purpose. This was error. Even if the wife could have pledged her contingent interest in the estate of her father-in-law to secure the $10,000 indebtedness of her husband, and an assignment for that purpose alone held by the appellee would be valid, he holds no such assignment. The one under which he claims contains a valuable consideration moving directly to the appellant, but, as a matter of fact, she never received it, and non constat that without the inducement so held out to her directly she would have assigned her interest in the estate merely to secure the payment of her husband’s indebtedness. Her assignment was of but an expectancy of an interest in the income from her father-in-law’s estate, contingent upon . her surviving her husband. If she died before him, she was to get nothing from the estate. Such an assignment is not valid at law at the time it is executed, but is merely an executory agreement to be equitably enforced when the interest which it [455] is intended to convey vests in the assignor: Bayler v. Commonwealth, 40 Pa. 37; Ruple v. Bindley, 91 Pa. 296; Whelen v. Phillips, 151 Pa. 312. Kern is to be regarded as seeking to enforce performance of the agreement with him. He has not performed, and cannot, therefore, call for performance by the appellant./ Other questions raised need not be considered. The assignments of error are sustained, the decree of the court below is reversed and the adjudication is directed to be confirmed absolutely, the costs on this appeal to be paid by the appellee.