
    [Philadelphia, March 26, 1838.]
    THOMAS against SMITH and Another.
    in error.
    In an action against executors to recover a debt due by their testator, it appeared, that the testator had a large estate at the time of his death, and that previously to his death he had conveyed portions of his real estate to his three sons, each of whom gave him a bond for part of the consideration-money, payable in one year after his death, and at the time of the execution of the bonds, it was agreed that the amount should not be paid, but that they should be given up to the obligors respectively, at or after the testator’s death; an endorsement to which effect was made . by the testator on the bonds: Held, that under these circumstances, the bonds were not tó be considered as assets for which the executors were ■liable; and that if the conveyance to the sons was invalid as against creditors, their remedy was by proceeding against the land.
    This was a writ of error to tbe Court of Common Pleas of Northampton County, to remove the record of an action of debt, brought by Rebecca Thomas, for the use of Freeman Thomas, against Michael Smith and Jacob Rothrock, executors of the will of Isaac Rothrock, deceased, upon a bond of the testator, dated the 27th of November, 1817, for ¿£132, payable in one year from the date.
    The defendants pleaded a special plea, which set forth, in substance, that before suit brought, namely, on the 18th of December, 1821, they settled their accounts of the administration in the Register’s office, which accounts were duly confirmed in the Orphans’ Court, and that afterwards they were discharged by a decree of the said Court unreversed and unappealed from, and administrators de bonis non were appointed in their place; and that they were not, at the time of the institution of the suit, executors of the will of Isaac Rothrock, but had fully administered, &c.
    To this plea the plaintiff replied, in substance, that before their discharge, the defendants delivered up certain bonds, goods, and chattels, belonging to the testator, to certain legatees, without receiving any consideration therefor, and without accounting for the same, alleging a devastavit; by means whereof the estate, at the time of their discharge, was insufficient to pay the debts of the deceased; traversing that the defendants had fully administered.
    *On demurrer to this replication, the Court of Common Pleas gave judgment for the defendant. A writ of error was taken out, and the judgment was reversed by the Supreme Court, who remanded the cause to the Court below, “to give the defendants an opportunity of withdrawing the demurrer, by leave of the Court there, and rejoining to the replication, either by putting the facts of it in issue, or alleging some new matter in avoidance of it;” for the trial of which, when, if issue should be joined, a venire facias de novo was awarded.
    
    The demurrer having been accordingly withdrawn, the cause came on for trial, on the 28th of August, 1837, when the plaintiff gave in evidence the bond upon which the suit was brought, and the will of Isaac Rothrock, the obligor.
    The defendants gave in evidence the settlement of their accounts in the Orphans’ Court, and the decree of that Court for their discharge, and then offered to prove as follows:
    “ That Isaac Rothrock, the testator, at the time of his descease, was a man of large estate, sufficient for the payment of all his debts. That previous to his decease, he had conveyed portions of his real estate to each of his three sons, John, Jacob and Joseph respectively, for the considerations mentioned in the deeds conveying the same to them respectively: that of the consideration money, a bond was taken from each of the said three sons for the sum of $1218 75, payable in one year after his death; and that at the time of the execution of such bonds, it was agreed that the amount thereof should not be paid, but that they should be given up to the obligors respectively, at or after the testator’s death: that nothing by law could have been recovered thereon: that as to Jacob Rothrock, the testator was indebted to him in at least the amount of the bond so taken from him; and that this, exclusive of the idea of advancement, was a sufficient consideration for giving up his bond: that John Rothrock, at the time of his father’s decease, was insolvent, and nothing could have been recovered on his bond: and that Joseph Rothrock was also insolvent, and nothing could have been recovered on his bond: that the whole estates, real and personal, both of the said Joseph Rothrock and John Rothrock, were exhausted in suits brought by the executors, and subsequently by the administrator de bonis non, and went &nd were applied to the satisfaction of the debts due by Isaac Rothrock, deceased, so far as the same would reach, and nothing more could have been obtained or recovered therefrom than was so recovered and applied: that the indebtedness of John Rothrock to his father, and forming the consideration of the said bond, arose from the conveyance of a tract of land, situated in Lower Saucon township, Northampton county, by the testator to him; and that the said land to such *sa^e ^7 the testator to the said John, seized and taken execution, and sold -from the said John by virtue of judgments obtained and executions issued against the testator’s estate for a debt which accrued before the said sale and conveyance by the testator to his said son John.”
    To the admission of which the plaintiff by his counsel objected; but the Court overruled the objection and admitted the evidence; and the plaintiff excepted to the decision.
    Evidence was then given to the effect stated in the offer of the defendant’s counsel,
    The charge of the Court (Banks, President,) was in substance as follows:
    “ The plaintiff rests his claim upon his right to charge the defendants with the amount of three bonds, given their testator by his three sons for $1218 75 each. The bond of John is dated on the 26th of May, 1818. The bond of Jacob and that of Joseph are dated the 15th of April, 1818. Each of the said bonds is made payable one year after the decease of the obligee. In his will the father gives and bequeaths unto each of his said three sons the sum of $1218 75; for which sum he holds a bond of each one of them, and directs his executor to give up the said bonds to his said sons, after his decease. This was in full of their share of his estate. His will is dated the 30th of May, 1818.
    The bond of Jacob has been produced in Court, and given in evidence on this trial. The following endorsement is written on this bond: “ This is to certify to whom it may concern, that I, Isaac Rothrock, having sold a piece of land to my son Jacob Rothrock, for which this bond is given, which sum of money is to be in full of his share of my estate, real and personal, and I do order my executors or administrators to give up this bond to my said son as his full share of my estate, on his signing a release for his whole share of my estate.” This endorsement is dated on the 18th of April, 1818, and is signed and sealed by Isaac Rothrock, and attested by two witnesses.
    It appears by the administration account, as settled in the Orphans’ Court, that the defendants did give up their bonds to the obligors, according to the directions of the will.
    Gertrude Rothrock, the widow of the testator, testified, that when her husband and herself executed the deed to Jacob for the land, Jacob refused to sign a bond until it was understood that it was not to be paid: that she heard her husband afterwards say that Jacob’s bond was not to be paid.
    John Brock, Esq., who drew the bond and endorsement, and is a witness to them, testifies that it was expressly understood, that the bond of Jacob was not to be paid.
    *Was this bond assets in the hands of the defendants for the payment of debts ? If it was not, they cannot in this suit be charged with its amount.
    It appears by the testimony of the two witnesses, that it was part of the agreement between the father and son, that it was not to be paid. The endorsement on the bond forms part of the transaction. It was binding upon the testator of the defendants. If binding on the testator, it must be equally so on his representatives. It is accompanied by all the solemnities with which the bond was executed. It is under seal. It is attested by two witnesses. By it the obligee certifies that it is to be in full of Jacob’s share in his estate. By it he orders his executors to give it up to the obligor. That they were also to stand as his share of the estate, forms part of the condition of the bond itself. This is a part of the agreement between the parties, and is as binding as any other part of the agreement. Jacob would not have contracted on any other terms. The old man in his will, which is afterwards made, provides for the fulfilment of this part of the contract on his part. He could not have changed it by his will, without the consent of Jacob.
    I am of opinion that the defendants could not have enforced the payment of this bond by Jacob; that its amount was not assets in their hands for the payment of debts, and that they cannot be charged with it in this action.
    The bonds of John and Joseph are not to be found, and cannot be produced. The defendants contend, that they were subject to terms similar to those which have been proved in regard' to the bond of Jacob.
    This their counsel have argued may be inferred from the fact that they are all dated near the same time; that they are for the same sum: that they are all made payable one year after the decease of the father: that the provision in the will is the same as to them all: that this sum was to be in full of each one’s share in his father’s estate: that the old man had about this time sold lands to each one of them : that this was done by the father, as Brock testifies, to settle his estate among his children in his life-time: that he had calculated the amount of his debts, and that he thought he had enough left to pay his debts, after giving these bonds to his children. What bonds does the witness refer to ? Is it to the three bonds now in dispute ? The Court intrusts all the evidence to your consideration. If you are satisfied from it that the bonds of John and Joseph were given, subject to the same condition that Jacob’s was, then the defendants cannot be charged with their amount. If they were not subject to the same conditions, then they would be chargeable with their amount; and as you believe them to have been the one way, or the other, so you will regulate your verdict in regard to this part of the case.”
    jury found for the defendants.
    The errors assigned in this Court were as follows :
    “ 1st. The Court erred in admitting the evidence mentioned in the plaintiff’s bill of exceptions.
    2nd. The Court erred in their construction of the condition and endorsement of Jacob Rothrock’s bond, and in saying that it was not assets in the defendants hands, and that they could not be charged with it in this action.
    3rd. The Court erred in submitting it to the jury to find that John and Joseph Rothrock’s bonds were subject to the same terms and conditions as the bond of Jacob Rothrock; there being no evidence in the cause, from which these facts might be inferred; and also in saying, that if they were subject to the same condition that Jacob’s was, the defendants could not be charged with their amount.”
    ' Mr. Hepburn, for the plaintiff in error,
    cited 2 Kent’s Comm. 437; Whitehill v. Wilson, (3 Penn. Rep. 414) ; Dubois v. Lord, (5 Watts, 49); Newbaker v. Alrich, (Id. 184); Stouffer v. Latshaw, (2 Watts, 165).
    
      Mr. Porter, contra,
    
    cited Wentz v. Dehaven, (1 Serg. & Rawle, 317); Romig v. Romig, (2 Rawle, 241); Saam v. Saam, (4 Watts, 432); Stockton v. Wilson, (3 Penn. Rep. 130).
    
      
       See 5 Rawle, 266, (Thomas v. Riegel).
      
    
   The opinion of the Court was delivered by

Gibson,. C. J.

The question is, whether these bonds were assets for payment of debts. That they were not intended to be so, is evident from the terms of the endorsement, by which the defendants were ordered to redeliver them to the obligors, when they should relinquish all claim to any other part of the estate. Had there been a reservation for payment of the debts, it would have been easy to express it; but, as it was supposed there would be enough beside, none was intended. Then why, it has been aslced, should bonds have been taken at all ? Simply because it is a custom in some parts of the state to take securities for advancements, merely as acknowledgments of them, which do not, however, always contain a clause of self-defeasance, and which may consequently be used to enforce the. father’s plan of distribution. That was certainly not the object to be accomplished by them here; for had he died intestate, 'and leaving a greater estate than was anticipated, the sons might, consistently with the terms, have thrown their bonds and advancements into hotchpot, and entitled themselves to enhanced portions; and to enable them to do- so was probably the motive for giving the transaction its peculiar form. But whatever the motive, the provision is, in this respect, an unconditional one, and it is not the office of to violate it. I the will out of the case. Its arrangements are subordinate to those of the contract by which the rights and responsibilities of the parties had been definitively fixed. If the particular disposition were valid as to creditors at its date, they cannot object to a particular part of it now; and if it were not, their recourse is to the land, and not to the nominal price of it as personal assets. Its validity under the 13 Eliz. would depend on the sufficiency Of the property retained to answer the debts, and on the consideration of the conveyances, which ought to be not merely good, but valuable.* It was testified, in respect of the first, that the deficiency has been caused by subsequent depreciation ; and as to the second, that at least one of the sons insisted on a stipulation against personal.liability, without which the expected bounty might have been a burden to him. Hopeless insolvency has been sometimes brought on children born to expectations of fortune, by the enforcement of securities for owelty of partition; of which Gfelback’s Appeal, (8 Serg. & Rawle, 205,) where the value of the whole estate fell below the auio'unt of the recognisances, is a notable instance. Now the creditors could impeach the present transaction only by treating it as a measure of distribution, however valid as between the parties, yet as a nullity throughout in respect to themselves; for if' the sons despite the stipulation to the contrary, were held liable to the executors for any purpose, it would assume the character of a contract on valuable consideration; and the pretention of the plaintiff to hold them so, is destructive of itself. lie may not recover against the terms of the contract by an action affirmative of it. On the other hand, if the bonds were treated as the nullities they purport to be, the conveyances, thus destitute of support from a valuable consideration, would be avoided by the statute, and the land would be left specifically liable to execution for the debts. Rut as the bonds and endorsements constitute an entire transaction which is fraudulent or fair in the whole, it cannot be affirmed in part and disaffirmed in part, so as to make it what the parties intended it should not be. The plaintiff might, perhaps, entitle himself to judgment de terris against the proper parties; but he cannot recover so as to involve the defendants in personal liability for having delivered up a contract which, by its terms, they were bound to do. The circumstances recapitulated in the charge, were sufficient, at least to go to the jury, as evidence that the lost bonds were executed on the same condition as was the one produced; and the whole case seems to have been properly submitted.

Judgment affirmed.

Cited by Counsel, 10 Barr, 428 ; 3 P. F. Smith, 308. 
      
      
         See, 4 'Wharton, 42.
     