Kelly v. Shillingsburg

Opinion by Beaver, J., In view of the change in the time fixed for the hearing of appeals for Philadelphia and of the circumstances of the case, which were made known to us at the hearing, we overrule the motion to quash the appeal and determine it upon its merits. If the defendant has a good defense to the claim of the plaintiff, it is not set out in the affidavit which we are called upon to consider. Dougherty v. Shillingsburg, 175 Pa. 56, determines the validity of the trust created by William Kelly in his [580] lifetime and fixes the obligations of the trustee who is the appellant here and the defendant in the court below. The ground upon which the Supreme Court based its decision in the case above mentioned was the fact that the trust had been so far executed in the lifetime of Kelly by reason of the obligations which the appellant gave to the plaintiff among others that it would have been inequitable to rescind the trust. The defendant admits that he had in his hands as the proceeds of the schooner and Oyster Bed in Delaware bay the sum of $3,000. Out of this he paid or agreed to pay, as directed, to Mrs. Kate Turner, $1,000. He paid or agreed to pay to his daughter, Maudette Shillingsburg, $1,000. He agreed to pay charges against the boat for supplies, etc., amounting to about $600. There is no allegation in the affidavit that he paid charges amounting to the full sum of $600. He alleges that he paid Wilson & Crawford $402.64 and the Greenwich Pier Railway Company $31.16. This would leave a sufficient sum in his hands, after paying the obligation upon which this suit is brought, to pay all the funeral expenses and more than the plaintiff’s share of the alleged expenses of sustaining the trust. But was he bound to pay the funeral expenses; or, admitting that there were legal claims against William Kelly in excess of the $600 alleged by him to be the amount of charges against the schooner, was the defendant bound to paj'- them ? We think not. There is no allegation in the affidavit of defense that he had no other estate. If there were such an estate, all legal claims against the decedent outside of what were expressly fixed by him to be paid by the trustee should have been paid by the administrator. If there were no such estate, it should-have been distinctly alleged in the affidavit. The alleged declaration set forth in the affidavit of defense, that “ after the papers had been executed and the notary public had gone away, Kelly said to defendant, ‘You pay the bills, when I am dead, and I will be buried from Mrs. Turner’s,’ ” even if it be admitted that the bills referred to were funeral expenses, it can scarcely be regarded as raising such a trust as would justify the defendant in paying them at the expense of the appellee. What bills ? “ Pay the bills ” out of what funds ? So m uch of imagination and inference must enter into the answer to these questions that they cannot be allowed to frustrate and nullify a clear [581] and express trust evidenced by tbe written obligation of the appellant to the appellee: See Class v. Kingsley, 142 Pa. 636. If any of the amounts directed to be paid by the trustee, for which he gave his obligation, were to be scaled down, there is no reason why that given to the brother should bear the entire burden of funeral and other expenses and those of Mrs. Turner and the daughter of the appellant should be paid in full. So far as the affidavit itself is concerned, however, as we have already said, we cannot discover from it that the appellant has paid more than the amount of the funds intrusted to him. The appellant, having undertaken to set forth in detail in his affidavit the facts upon which he relied for his defense, is presumed to have included all the facts, and these failing, when taken together, to show a legal defense to the claim set forth in the plaintiff’s statement, he cannot save himself by the general declaration at the close of the affidavit “ that he has a just and true defense to the whole of the plaintiff’s claim.” On a careful consideration of the case, we discover no error in the court below in making absolute the rule for judgment for want of a sufficient affidavit of defense. The judgment is, therefore, affirmed.