
    [Lancaster,
    May 19, 1823.]
    WILSON, Executor of WILSON, against HAMILTON, Administrator of WILSON.
    
      A former recovery in an action for money had and received against an executor by the widow is only prima facie evidence that the whole amount with which the executor then charged himself in the settlement of his accounts, was recovered: the plaintiff may in another action recover monies received since the bringing of the former suit though contained in the account, if they were not before recovered.
    In an action by the widow for her share of the surplus monies arising from the sale of a tract of land ordered by the testator to be sold and undisposed of by will, evidence is not admissible of an action of dower brought by her to recover her dower in another tract belonging to the testator, which is the subject of a different devise.
    When a testator orders land to be sold and certain legacies to be paid out of the proceeds, the surplus money after the payment of the legacies does not go to the executor, or to the next of kin, as an undisposed of residue of personal es-' tate, but results to tlje heir at law.
    If the widow in such case bring an action of dower and count therein, this is such an election as would bar her from claiming a share of the money if it were an un--disposed of residue of personal estate.
    Error to the Court of Common Pleas of Lancaster county.
    This was an action for money had and received,, brought by the plaintiff below, John Hamilton, administrator cum testamento annexo of Jane Wilson, deceased, of Lancaster township, Lancaster county. Jane Wilson was the widow of John Wilson, the testator, who died in 'October 1799, and the defendant was his son. By his last will, dated the 31st day of August, in the year 1789, after ordering that all his just debts and funeral charges should be paid out of his personal estate, he devised to the defendant the plantation he then lived on, together with all the mountain and timber land lying in Chester county, in fee simple. He then bequeathed to his daughter, Mary Peters, £400, to be paid in one year after his decease, with deduction of what she had already received: to his grandson, John Hamilton, £ 100, when he arrived at 15 : to his grandson, John Peters, £ 100, when he arrived at 18: to Samuel Bigart, who married his daughter Nancy, 10 shillings, without any deduction: to his two granddaughters, Sarah and Margaret Bigart, £ 50 each, when they came to 18: “Item, I further will and allow my well beloved wife, Jane Wilson, to have the profits of the place I now live on, which is in Leacock township, during her natural life, and at her decease to fall into the hands of my son, John Wilson. Item. It. is my will, that the land where Robert Knox now lives on, in Leacock township, together with 50 acres of timber land lying in Lampeter township, be sold after my decease, and £ 100 of the purchase money be paid to my daughter Margaret Hamilton, and the interest of £ 100 be paid to my daughter, Mary Peters, and at her death, the said £ 100 to be divided equally among her children.” He then appointed his son, the defendant, and his son in law, Robert Hamilton, his executors, and revoked all former wills. Robert Hamilton renounced: the defendant afterwards filed'an inventory of the personal estate of the testator, consisting of cash, bonds, notes, and book accounts, amounting to the sum of £ 3057 9s. lid.: and on the 12th December, 1801, he settled his account in the register’s office, in which he charged himself with the amount of the inventory, and after claiming a credit for the payment of debts, and legacies, and a commission, there was a considerable* balance., of personal estate due, which was stated by the defendant at the conclusion of the account to be a “balance in the hands of the accountant to be distributed according to the wiíl,”
    
      Jane Wilson, on the 26th January, 1802, brought an action for money had and received, against the defendant, in the Common Pleas of Lancaster county, (afterwards removed to the Circuit Court under the system then existing,) to recover her distributive .share, namely, one-third, of so much of the testator’s personal estate as remained undisposed of by will, and she recovered £621 3s. 3d.
      
       The present suit was instituted, to recover her portion of the said personal estate, which had been received by the defendant since the 26th January, 1802. . The defendant pleaded non as-sumpsit, payment, with leave to give the special matters in evidence, a former recovery and set off, and issues were joined. The plaintiff claimed one-third of the amount of a mortgage given to the testator, by John and George Boyd, on which satisfaction was acknowledged by the defendant, on the 2d December, 1803: one-third of the amount paid by Jesse Gilbert as a purchaser'of the property sold under the will, and paid to the defendant, after the 26th January, .1802; one third of a bond given by John Armstrong to the testator, and received by the defendant: none of which were included in the above-mentioned inventory: one-third part of several other bonds which were included in the said inventory: and one-third part of certain other bonds of Jcaob Swope and Jacob Sou-der, which it was doubtful, whether or not they were included in the inventory.
    On the trial, the inventory and administration account were produced, and it was proved that they were given in evidence on the former trial. It was also proved by the defendant, that Jane Wilson brought two writs of dower to November Term, 1800, against the tenants in possession, one against Robert Knox, to recover her dower out of the lands devised by the* testator to be sold, to which ■ the defendant appeared, and pleaded, 1, A devise and bequest in lieu'and satisfaction of dower, entered on and accepted by the de-mandant. 2. A release; on which issues were joined; but the suit: abated by the death of the tenant. The other writ of dower was against John Scott, to recover dower out of the land devised to Jane Wilson for life.
    The following bills of exceptions were taken by the defendant.
    
      First. The plaintiff offered in evidence the depositions of Jacob Souder and Jacob Myer, and the bonds to which they related: the -testimony of Robert Hamilton, concerning his bond for £ 100: on which £75 were paid in December, 1808, and £ 71 19s. Gd. in February, 1809 : the testimony relative to the bond of William Evans and John Smith, on which 300 dollars were paid in 1806. The defendant objected, and offered to show the inventory which included the said bonds, and the administration account of the defendant above-mentioned: the institution of the suit in 1803, above' stated, in which the inventory and account were given in evidence. But the court overruled the objection, and admitted the evidence, whereupon the defendant tendered a bill of exceptions.
    The second bill of exceptions was the same %s the above, to the bond and receipt of James Hamilton.
    
    
      Third hill of exceptions. After the plaintiff had concluded his. case, thedefendant offered in evidence, the record of a writ of dower brought by Jane Wilson against the defendant to November Term, 1800, removed to the Circuit Court, to recover her dower out of her husband’s real estate, to s.how that'she had made her election to claim in opposition to the will. This evidence, being objected to by the plaintiff, was rejected by the court, who sealed another bill of exceptions.
    Several points were submitted to the court below by the plaintiff and defendant: and the court charged that the plaintiff in this action was entitled to recover any monies received by the defendant, since the institution of the former suit, which the jury were satisfied were not then recovered; that as to the residue of the purchase money of property sold to Jesse Gilbert, the writ and count in dower against Robert Knooc, were evidence to show an-election by the widow to take her dower, but were not conclusive: and the writ of dower against Scott to recover one-third of the lands devised to the widow for life had no effect to bar her claim in this suit.
    
      Rogers and Hopkins, for the plaintiffs in error.
    1. It must be taken for granted, that Jane Wilson recovered in her former action, her share of all the debts included in the inventory of her husband’s.estate, and she therefore cannot now recover any part of those debts. The former suit was for the recovery of all to which she was entitled from the estate. In that suit the inventory was given in evidence* by her, in which the executor was charged with these debts. Her demand formed one entire cause of action, not capable of being severed, and as the executor had charged himself with the whole,her right to recover the whole could not be controverted and cannot now be disputed. She might have recovered it then, and cannot have the chance of recovering it again. Even a court of equity will hot relieve a man who has lost his opportunity at law.
    2. The court below erred in rejecting the evidence of a recovery by Jane Wilson, against the defendant in an action of dower. This evidence went to show that she had recovered against the will: and yet now she- is suing under the will. They cited Wen. off. Ex. 4, 5. Toller, 275. Bop. Leg. 219. 3 Bac. ab. 27. Qodb. 76. Noy, 12. 2 Ball. 268,
    3. The writ of dower against Knox, who lived on the land devised by the will to be sold, and counting therein, were a conclusive election by the widow to take her dower. It was an election jn a.court of justice, and cannot be retracted. It is of record, and therefore differs from-elections in pai's. ' Co. Lit. 145. a. is express that if the wife bring a writ of dower at the common law and count, albeit she recover not, yet she shall never after recover her dowei’- ex assensu fra tris. So an avowry in a court of, record, which is in 'the nature of an action is a determination of a party’s election before any judgment .given. Ib. 145, 6. On the same ground an action by a widow for an annuity devised to her.by her husband, and recovery, are a bar to her action of dower. 10 Johns. 30. And on the other hand a recovery in dower is a bar to a testamentary provision in lieu'of dower. Cro.-Eliz. 128. It is a principle that one shall not claim under a will without giving full effect to it, in every respect, so far as such person is concerned. One who opposes it in part must reject it in the whole. He cannot take a part and reject in part. Bop. on Leg. 212. Cas. . Temp. Talb. 182. 2 Mh. 44. Bow. on Devises, 469. And when an election is made by the party, it is binding on his representatives. 1 Mass. Bep. 211. 3 Har. & M(Bten. 95.The suit by the, widow against Knox to recover dower in the lands directed by the •will to be sold, was in direct opposition to the will: and though it di|l not prevent the sale was calculated to injure it.
    
      Buchanan, contra.
    
    1. In an action for money had and received, the plaintiff can only recover the amount of the money actually received by the defendant. Balston v. Bell, 3 Ball. 242. In conformity with this principle, the plaintiff was precluded in the former suit, as appears by the notes ' of Judge Smith, who tried the cause, from recovering any money which had not been actually received by the defendant. The inventory and administration account, given in evidence in that suit, were not’conclusive on the defendant: he was at liberty to show, and did show, on the trial, that he had not received all the debts with which he had charged himself. Lautermilch v. Kneagy, 3 Berg. & Bawle, 202, and Kohr v. Fedderhaff, 4 Berg. & Bawle, 248, are authorities to show, that a settlement in the Orphans’ Court is not conclusive. As the defendant first prevailed against the plaintiff on the ground that a settlement in the Orphans’ Court was not conclusive, it would be strange if he could succeed now on the ground that it was conclusive;
    
      2. The error alleged on this point proceeds on taking it for granted, that the suit by the widow against John Wilson for dower in the lands devised to her for life was in opposition to the will. But this court has decided, that the writ of dower against John Wilson was not evidence, because it was not in contradiction to the will. The widow is not put to her election to take under the will of her husband, or her dower, except by express declaration, or necessary inference from the inconsistency of her claim with the dispositions of the will. Webb v. Evans, 1 Binn. 572.
    
      3. This is the great point in this cause. Did the writ of dower brought by Jane Wilson against Knox, prove an irrevocable election to take her dower in' that land, ánd not her share of the money for which it should be sold? I grant it was evidence of election; but unless it was conclusive evidence, the court below was right in their charge. It was a mixed question composed of law and fact, which the court was not bound to decide but left purposely to the jury.' It might have been done under a misapprehension of' her rights: and in such case chancery would relieve her; for there must be á knowledge of a party’s right, to make a binding election. 3 Johns. Ch. 422. The writ of dower was sued out before the sale made by the executors: if it had been brought after that sale, the case would have been very different.. But no harm was done: she did not interfere with the sale nor molest the purchaser. She might even have recovered her dower, and yet afterwards given up her claim to enable the executors to sell. She had no means of compelling them to sell. She was entitled to one-third, of the money arising from.the sale absolutely, inasmuch as the will converted the land into personalty. How can it be supposed that she would elect to take a life estate in one-third in preference to the absolute property? In truth, she never could have recovered in the action of dower: because Knox was a tenant for years, and dower lies only remedy against the tenant of the freehold. 2 Saund. 43, note 1.
    In reply, it was stated, that there' was' no weight in the argument that Knox was only a tenant for years,, because he did not plead in abatement that he was not tenant of the freehold, but in bar of the action, namely, that the testator had devised to the de-mandant other land 'in lieu of dower.
   The opinion of the court was delivered by

Dukcan, J.

That-the executor, in this state, has always been considered as a trustee of the next of kin, as to all the residue of personal property undisposed of by the testator, was.settled between these very parties, and a recovery had by the testatrix in .her life time. '■ '

To this second action,, the defendant below.has interposed, first the plea of former recovery; secondly, an election by the plaintiff not to claim under the will, but her dower at the common law; established, as he contends, by two writs of dower; one against John Wilson, the other against Robert Knox, the tenant of testator, living on the tract devised to be sold, and which was sold, and one-third of the purchase money of which- she claims in this action, as the residúe undisposed of, of the testator’s personal estate, as his widow.

The plea of a former recovery is composed partly of law and fact, is a mixed question of law' and fact, and the issue.is always to the country.

This was an action for money .had and received to and for the use of Jane Wilson, against the. defendant as her trustee. It is on the principle of trust alone, that the action can be maintained. It is in the nature of a bill in equity. The declaration states no specific, single cause of action, money received from a particular person for the use of the plaintiff; and in this form of action, a plaintiff can only recover the money which the defendant has actually-received. It was, therefore, competent to the plaintiff to show what money she really "did recover, and on what account; and to show, that she did not and could not recover certain sums of money which she sought to recover in this action, because it was not one entire transaction or cause of action, incapable of separation, and which the .plaintiff could not-split up into several actions, but separate and distinct causes in their nature; and even in the case of an entire contract, where action cannot be brought till all the days of payment are past; yet where the action sounds in damages, as in the present case, and not debt, the plaintiff may sue in order to recover damages for every default made in payment. Ashford v. Hand, Andrews, 370. So, if money is awarded to be paid at different times, assumpsit will lie on the award for each sum as it becomes due. Cooke v. Whorwood, 2 Saund. 338. It is unreasonable that an action can be brought for money not due, and ungracious to object, that because you have recovered money which was really due at the time you sued and recovered, that you shall not recover money from-me which 1 did not then owe, because I had not received it, but which I have since received as your trustee. -To permit a plaintiff to prosecute' in a second action, what was included in and might have been recovered in the first action, would be unjust and against the policy of the law, because it would harass a defendant and expose him to double costs. This is the doctrine in Hesse, Executor of Hesse, v. Heebie, 6 Serg. & Rawle, 57. If he does not bring it forward on the first trial, he is'supposed to have abandoned it, and has no cause of complaint. But where he does not specifically include it in his first action, and could not recover it if he did, that he should be barred from ever recovering it, would be most aggravated injustice.

The former recovery was only prima facie evidence that demands were inquired into, but not conclusive. The issue in the plea is, whether the damages demanded in this action were recovered in the former one, and the plaintiff ought' clearly to show, that this same cause of action had not been litigated and decided in that action. The evidence was competent to show that it had not been recovered in that action, because the defendants showed it had not been actually received by the executors.

There was, therefore, no error either in the admission of this evidence, or in the instruction given to the jury on the plea of former recovery. It was for the jury to decide whether it was recovered or not.

On the ground of election, the case presents one question of some difficulty. If this is-undisposed of residue of the’personal estate, the- question of election, strictly, cannot well arise; for the defendant claims as if the testator quoad this residue, had died intestate. She does not claim this under the will, or ask it in opposition to the will, but because there is no will disposing of it. But it has some resemblance to election,' so far as respects the land sold to Jesse Gilbert, which she claims as personal'estate. Now she shall not be allowed for her benefit to consider it as both real and personal estate, and to claim distinct interests in two qualities. There is nothing equitable in this. Her claim of it as personal estate is equity: at law, the executors take the surplus. But it is held, that in Pennsylvania, though the executor takes it, he takes it as a trustee for the next of kin, and she can only claim it passing to him as personal estate. Her claim of it as land,, is equivalent to a declaration that she will abide by her legal right. She disowns the trust, and in such case the writ of dower and count in dower are a conclusive election made by her, of the state in which she considers this property and claims it.

It is a different question from taking in opposition to a will. She has two interests arising out of the same subject, the land. She may use it either way, but not both ways; and to one entire act. Here she had two ways arising out of her interest. She cannot work it both ways. Hob. 159, 160. This action of dower was a disclaimer in a Court of Record {Butler and Baker’s Case, 3 Co. 26. b.) of all claim to this as personal estate. An election is made by real action in a Court of Record, claiming as realty. She asserts her legal right to this as real property, by a real action. She, therefore, by necessary consequence, disclaims all equitable right to it, as personal estate, by a personal, equitable action, as this is.

In .the .Appeal of John Anderson, Administrator of Christopher Griffith, 4 Yeates, 35, heir at law claiming an interest in intestate’s estate as personal in the Orphan’s Court, was estopped from asserting his right to the land. One of the reasons why estop-pels are-allowed, is, that what a man hath once asserted in a court of justice is presumed true, and he ought not to be permitted to contradict it. .

But there is another view of this subject, quite satisfactory to my mind, which has not been adverted to; apd that is, that there is no resulting trust to. the next of kin of the testator, of the surplus of the proceeds of the sale of land, after satisfying the specific purposes, but the trust is -for the heirs. It is my will, that the land whereon Robert Knox lives, in Leacock township, together with fifty acres of land lying in Lampeter township, be sold after my decease, and £ 100 of the purchase money to be paid to my daughter, Margaret Hamilton, and the interest of £ 100 to be paid to my daughter Mary; and at her decease, the said £100 to be divided equally among her children.” The heir takes the resulting trust of the residue, after satisfying the charges. A difficulty sometimes arose, in what quality he took, whether real or personal estate. When the object of- the sale has ceased, and ■ no further disposition is to be made, the heir takes a resulting trust. 8 Johns. 81. The appointment of an executor vests the whole personal property in the executor. The legal title is in him: he is as much proprietor as the testator was in his life time. Not so of lands; for what is not devised, vests in the heir: the executor has neither interest nor power; but what is specifically given to him: for every devise of land is, from necessity, specific. There must tie a substantive and independent intention to turn the real estate, at all events, into personal; not where there is only a specific purpose, and no conversion except to answer that purpose. The heir' takes' all that which is not for a defined and specific purpose, given by the will. There is no doubt but that the heir, paying the charges on the land, could prevent a sale; and there is no spark of equity between the heir and next of kin. There cannot be a gift without a donee. Plain words of gift áre necessary to disinherit an heir at law.

A' devise of real estate to be sold, the object being a provision for legacies, and .not an absolute conversion to all intents, the heir at law takes the surplus, which would not be affected by the appointment of a residuary executor. Here it is not converted out and out, nor the surplus directed to be disposed of; but is a surplus fund resulting to some one; and I do not see how the personal representative can ever get at that, which was not personal at the death of the testator, but by express direction; and there being no such direction, the heir at law is entitled to it as a resulting fund, because it was real estate — land—at the devisor’s death, and this part of it an interest in the real estate — land—not effectually devised; and which, therefore goes to the heir. It is for this reason, that the produce of an estate, which the devisor directs to be sold, can never be, strictly, part of his general, personal property. Every person taking an interest in the produce of land directed to be sold, is in truth a devisee, and not a legatee. But here is neither legatee nor devisee, nor any disposition of the surplus as money.. Whatever interest.in a profit out of real ^estate is undis-posed of descends to the heir. Talbot’s Cases, 43.

Where there is a devise to trustees to 'sell to pay debts, &c. and no disposition is- made of the residue, the benefit of the residue descends to the heir at law; because the devise is taken to be simply a charge, and the estate so far reinains real notwithstanding. But in case of personal estate, the law vests the legal title in the executor, -of all undisposed of, as it does of all the real estate in the heir undisposed of by the will.

It is not necessary there should be an expression in favour of the heir to enable him to take; but it is necessary there should be a clear expression or manifest implication, that the testator intended to give- it to some one else, to take it from the heir. And if it is doubtful what the intention was, or if there were no intention about it, the heir must take.. If it was a measuring cast between the heir and next of kin, the heir must take.

Whenever the executor takes a residue of personal estate, and is made a trustee for the next of kin, the trust is equally for the widow; because then it goes under the intestate law, as part of the personal estate undisposed of. But the produce of land undisposed of, goes as the land itself would. But under a bequest of the residue of personal estate to the next of kin, without more, the widow does not take. If this widow takes this as a personal estate, she does not take it because of the intestacy of her husband, but must take it because it' was given to her by the will. She cannot take it as if her husband had died intestate, because, in that event,'' she is entitled to dower alone. She cannot take it under the will, because it is not given to her. The claim of the widow, if supported, would defeat the intention of the testator, and it is difficult to maintain the construction, that this estate was converted, out and out, by the testatoi’, into personal estate, and was such at his death; and impossible to support the position, that he devised her one-third of the surplus of this land in fee simple, after discharge of legacies. For that would 'be the consequence; and if no sale had been made,.she then could have maintained an ejectment for one-third of the land: than which nothing could be more contrary to every principle both of equity and law, or more repugnant to the intention of the testator.

' The court are of opinion, that the surplus money arising from the sale of the land, after payment of the legacies charged specially thereon, went ás a resulting fund to the heir; and would not go, either to the executor or next of kin, as an undisposed of residue of personal estate, and that- the plaintiff would not be entitled. And that if it were undisposed residue of personal estate, having made her election by action in a Court of Record to claim it as real, was a disclaimer of any equitable interest in it as personal estate. The widow having annulled the will as respected this tract, by judicial process, her election by this repudiation was made, to take this as real estate. She reprobated all claim to it as personal; denied its conversion into personal. When she, in a Court of Record, prosecuted her right to this as real, she elected to reprobate the will, in order to establish her claim to this as real. She could not, afterwards, approbate it, so as again to make it personal. The record in the action of dower against John Wilson, was properly rejected. It was immaterial; for whether she recovered dower, or sued for it, from the land devised to John or not, could have no operation on the claim she set up in the action for the produce of the sale of the lands directed by the executor to be sold; nor on the undisposed residue of that which was purely personal estate at the testator’s death, to which she has an unquestioned right.

Judgment reversed, and venire facias de novo awarded..  