Mallalieu's Estate

Opinion by Henderson, J., It is a rule of the common law that no one can sue on a contract to which he is not a party: Wharton, Contracts, 784. The same rule prevails in this state as is shown by an examination of Blymire v. Boistle, 6 Watts, 182; Torrens v. Campbell, 74 Pa. 470; Kountz v. Holthouse, 85 Pa. 235; Adams v. Kuehn, 119 Pa. 76, and other cases. Where one is a stranger to the contract and to the consideration for it he cannot maintain an action on the contract. There are exceptions to the rule where the plaintiff may fairly be said to be a party to the consideration, where in good conscience the title to the money or thing which is the consideration for the promise passes to the beneficiary and the promisor becomes in effect a trustee. As, for instance, where money or any other valuable thing is placed in the hands of the person sought to be charged at the time the agreement is made, to be paid or delivered to a third person, as in Beers v. Robinson, 9 Pa. 229; Vincent v. Watson, [104] 18 Pa. 96; Campbell v. Lacock, 40 Pa. 448; Howes v. Scott, 224 Pa. 7; Torrens v. Campbell, supra. In the latter case Justice Mercur concluded the opinion of the court in these words: “I understand the rule to be this, where the promisor receives money, or personal property to be converted into money, in trust for a third party, the action may be sustained in the name of the latter.” The appellant asks that her case be made an exception to the general rule, but the facts presented do not bring her claim within the limits of any adjudicated case. She was not only not a party to the contract set Up, but no consideration passed from her to the appellee or to anybody else. No trust fund was created; no money or other valuable thing was put in the hands of Mrs. Shoemaker by George W. Mallalieu or anybody else to be paid over to the appellant. The transaction proved was in effect a promise by Mrs. Shoemaker to make a gift to the appellant. It is not pretended that the latter had any sort of claim against Mrs. Shoemaker, and the undertaking to transfer part of the estate to her was purely gratuitous. The auditor seems to have been in doubt whether anything more was intended by Mrs. Shoemaker in her reply to the proposition of Mallalieu than a responsive acknowledgment that the appellant and her sister who had taken care of the decedent in his youth should have a part of his estate, and he well concluded, therefore, that it was “something of a stretch to find that she then and there agreed that it should be so distributed.” If the case turned on that question we should hesitate to hold that the evidence showed a clear and explicit agreement to make an assignment of one-half of the estate, but accepting the finding of the auditor on that subject he was correct in determining that the appellant could not recover because she was neither a cestui que trust nor owner of the fund nor a party to the contract or consideration. At the time the promise was made the fund was in the estate of Howard Mallalieu. His mother was the sole heir, but none of the property was then in her possession. At most, she promised to be generous and failed to keep her promise. There is another reason why the contract set up is not en [105] forceable. In becoming one of the administrators of the estate George Mallalieu became a trustee. He knew that Mrs. Shoemaker was the heir and that she would be the cestui .que trust. The law would not permit him, therefore, to make a bargain with reference to the estate adverse to the interest of Mrs. Shoemaker in anticipation of becoming administrator. Administration of the decedent’s estate is strictly a trust, and equity would not permit a person about to become an administrator to contract with the heir to the latter’s prejudice: Bowers v. Bowers, 26 Pa. 74. His compensation is determinable by established legal standards, and he cannot be permitted to contract for excessive compensation for himself or any other person. The decree is affirmed.