
    Conrow et al. v. Conrow et al.
    Where an action was brought by two out of three executors, and no plea in abatement setting up the non-joinder of the third executor was filed, but when the case came to trial, on the general issue, a motion was made to amend the record by adding the third executor as plaintiff. Held, that the motion was too late and was properly refused.
    One of several executors renounced and entered into an agreement in writing to go on the bond of the other persons named as executors on condition that he should receive the share of commissions that would have been awarded to him if he had not renounced, and also that he should be employed as attorney to represent the estate. In an action by the executors of the renouncing executor to recover his share of the commissions, the defendants offered parol evidence to prove that the decedent was to perform services and assist the executors, and that he had died before the services were rendered and the commissions earned; also, that it was distinctly agreed and understood that plaintiff’s testator should be entitled to share in the commissions on moneys which were actually collected by him and' no more. Held, that the offers were properly refused.
    Pee Curiam. — It was not alleged that there was either fraud, accident or mistake in the execution of the agreement in regard to the commissions.' Aside from this, the offer of evidence did not propose to show that the evidence had any reference to what took place at the time the paper was executed, nor was any time whatever designated when the alleged modification of the original agreement was made.
    Jan. 18, 1889.
    Error, No. 136, July T. 1888, to C. P. No. 3, Phila. Co., to review a judgment on a verdict for plaintiffs in an action of assumpsit, at June T. 1881, No. 224.
    This action was brought by Emma B. Conrow and Joseph A. Sinn, Executors of George E. B. Conrow, against Sarah B. Conrow, Joseph H. Conrow and Howard F. Conrow to recover one-fourth of $3000, being the commissions awarded to defendants in Delaware as executors of Joseph B. Conrow, deceased.
    The plaintiffs offered in evidence the following agreement at the trial, before Gordon, J.:
    “We, the undersigned, executors under the will of late Jos. B. Conrow, do agree with George E. B. Conrow, also one of the executors named in said will, that, in consideration of his renouncing all right to serve under said will, as executor, and agreeing to go upon our bond as security for the faithful performance on our parts as executors, that we do hereby agree that he shall share with us the lawful commission allowed us as executors, and that he shall represent the estate as attorney where the services of an attorney may be required, and have charge of collecting such rents forthwith as heretofore collected by Twining & Son for deceased.
    “ Signed in the presence of “ Sarah B. Conrow,
    “ S. C. Briggs. “ Jos. D. Conrow,
    “ Howard F. Conrow.”
    The plaintiffs also offered in evidence letters testamentary issued to plaintiffs and Howard Crosby as executors of George E. B. Conrow, deceased. The defendants admitted that George E. B. Conrow renounced his right to act as executor of Jos. B. Conrow and signed the bond of defendants as surety; they also admitted that they had received $3000 as commissions. The plaintiff then rested.
    The defendants moved the Court to amend the record by adding the name of Howard F. Conrow, co-executor of plaintiffs, to names of plaintiffs, and by striking off the name of Howard E. Conrow as defendant. Refused.
    The defendants offered to prove by Mary H. Kirby, a daughter of Joseph B. Conrow, deceased, that the agreement was, that George E. B. Conrow was to be in the same position as to his right to share in the commissions, had he not renounced; that he was to perform services and assist the executors; that he died before he had performed any of the services and before any commissions had been earned. Objected to by plaintiff, objection sustained and exception.
    Defendants also offered to prove by the same witness that this agreement is not the whole of the contract made between the parties at the time; that it was distinctly agreed and understood that plaintiff’s testator should be entitled to share in the commissions on moneys of the estate which were actually collected by him and no more; and that he died before any moneys had been collected, and before he had rendered any of the services contemplated by the agreement. Objected to by plaintiffs, objection sustained and exception.
    Defendants also offered to prove that the amount of the personal estate was $60,000 and that the only debts were doctors’ bills, etc., and that the only persons interested in the estate were the parties to the contract and Mary H. Kirby, all of whom signed the bond and that the liability on the bond was only nominal. Objected to by plaintiffs, objection sustained, and exception.
    The court instructed the jury to find for the plaintiffs for $750 with interest from May 3, 1883, the date the commissions were received. July 13,1888, verdict and judgment for plaintiff for $920.
    
      The assignments of error specified the action of the court, 1, “ in refusing to add the name of Howard F. Conrow, a co-executor of plaintiffs; ” 2, “ in refusing to strike off the name of Howard F. Conrow, as defendant;” 3, “in refusing to admit the testimony of the witness, Mary H. Kirby; ” 4, “ in refusing to allow defendants to prove what was meant by the parties by the words ‘ share in the commissions ’; ” 5, “ in not allowing defendants to prove that the parties distinctly agreed that the plaintiff’s testator should stand in statu quo as to his share of the commissions, that it was intended and agreed that the share to which plaintiff’s testator would be entitled to receive, would be the same share to which he would be entitled had he qualified as executor; ” 6, “ in refusing to allow defendants to prove that plaintiffs’ testator died before any of the assets of the estate had been collected, and before any of the commissions had been earned; ” 7, “ in refusing to allow defendants to prove that the written contract was not the entire contract, and that there was a contemporaneous parol contract on the faith of which the written contract was executed;” 8, “ in refusing to allow defendants to prove that the plaintiffs’ testator agreed to assist defendants in collecting the assets of the estate, and should only be entitled to share in commissions so earned;” 9, “in refusing to allow defendants to prove that the bond was only nominal, and that there was almost an entire failure of consideration;” 10, “in instructing the jury to find for the plaintiffs;” 11, “in instructing the jury to assess the damages at $920.”
    
      S. Morris Waln, for plaintiff in error.
    The action could only be maintained by all the executors jointly and not severally. By the Act of May 4, 1852, the name of plaintiff may be added at any stage of the proceedings. The court should have stricken off the name of Howard F. Conrow as defendant. If he was indebted to his testator, that debt was assets in his hands. Berry v. Usher, 11 Ves. 87; 13 Ves. 262; Schnell v. Schroder, 1 Bailey Eq., S. C. 384; Carey v. Groodinge, 3 Bro. C. C. 110; Ingle v. Richards, 28 Beav. 366; Wood v. Tallman, 1 Cox N.J. 157; McCandless’s Est., 61 Pa. 9. The orphans’ court was the proper place to surcharge Howard F. Conrow for his debt. Such a debt is assets in his hands, and is a matter of accounting merely, in reference to which the executor must account before the forum from whence he derived his authority to act, and should not be subjected to suits by his co-executors in a. different forum.
    The written contract was not an entire contract. Parol evidence-is admissible of a verbal contract made at the time of the written contract, on the faith of which the written contract was signed-Bank v. Jones, 10 W. N. C. 436; Driesbach v. Bridge Co., 81* Pa. 177; White v. Dixon, 35 Leg. Intel. 114; Burk v. Kerr, 12 W. N. C. 191; Keough v. Leslie, 92 Pa. 424; Whitney v. Shippen, 89 Pa. 22; Hoopes v. Beale, 90 Pa. 82; Barclay v. Wainwright, 86 Pa. 191.
    The written contract is incomplete and ambiguous, and was executed only on the faith of the distinct and express parol contract by which it was expressly agreed what share of the commissions the said George E. B. Conrow was to receive.
    There was no promise in the written agreement to pay any certain sum of money. The agreement was to share in the executors’ commissions. Until they are earned and allowed, the executors would be entitled to nothing. Here one of the four executors died before any assets were collected. His legal representatives are not entitled to commissions earned after his death. An executor’s share of the commissions is the share to which he would be entitled to receive at the time of his death.
    
      Charles L. Lockwood, for defendants in error,
    cited the quotation, given in the opinion of the supreme court, from 1 Chitty’s Pl., 16 Am. Ed., p. 23; also Williams on Executors, foot page 957; Packer v. Wilson, 15 Wend. 343; Gordon v. Goodwin, 2 Nott. & McCord, 70. Also Saunders, 291, i. note to Cabell v. Vaughan; and Williams on Executors, foot page 957.
    The reason for the rule laid down in Chitty and Saunders probably is that non-joinder can work no harm to the defendant, as a judgment for or against him would protect him from further demand. Whereas, the omission of a joint promisee would leave the defendant liable to another action.
    One executor can give a valid release, Devling v. Little, 26 Pa. 502; surrender a lease, Reber v. Gilson, 1 Pa. 54; submit to arbitration so as to bind the estate, Grace v. Sutton, 5 Watts, 540; appear to a sci. fa. and confess judgment, Gees v. Shannon, 2 Watts, 71; or satisfy a mortgage, Stuyvesant v. Hall, 2 Barb. Ch. 151.
    The motion made by defendants below to add Howard Con-row’s name as plaintiff and strike it out as defendant, was properly denied. It was made as one motion, and must be considered as a whole, and it cannot be regarded as an application by a co-executor to be allowed to join in a suit by his fellow-executors.
    In the absence of a proper plea, spreading the fact upon the record, the court will not infer from the production of letters testamentary naming Howard as executor, that he remained an executor until 1883, when the light of action accrued, or until 1887, when this action was commenced. Non constat Howard was removed or discharged before the right of action accrued.
    At common law, the appointment of a debtor as executor released and extinguished the debt, which in equity was regarded as assets in his hands. The reason given for this doctrine is that because the remedy is gone, an executor not being able to sue himself, therefore the debt must be considered as extinguished. Williams on Exrs., foot p. 1310 ; Addison on Cont. 1302.
    
      The reason for the rule, and therefore the rule itself, are not applicable to this case. Here, without an executor suing himself, there can be no recovery in compliance with the forms of law, the only irregularity, if any, being waived by the defendants.
    In Pennsylvania, the debt is not extinguished. Act of February 24, 1834, § 6, 1 Purd. 517.
    Defendants’ offers were clearly incompetent and were properly rejected. Plaintiffs’ testator was not to perform services in consideration of a share of commissions.
    Jan. 28, 1889.
   Per Curiam,

It is said in Chitty on Pleading, Vol. 1 of the tenth American edition, at page *20, that “If only one of several executors or administrators brings an action, either of debt or assumpsit, or in tort, it is settled that the defendant can only take advantage of the non-joinder of the co-executor or administrator by pleading in abatement, after oyer of the probate or letters of administration, that the other executor or administrator therein mentioned is alive and not joined in the action.” If the defendant pleads the general issue he is too late. 1 Saunders, 291. The reason of the rule may be found in the fact that the non-joinder can do the defendant no harm, as a verdict for or against him is a full protection. A receipt or release by one executor discharges the debt. Devling v. Little, 26 Pa. 502. This is an answer to the first assignment of error. No application in reference to the non-joinder of Howard Oonrow, executor, as one of the plaintiffs, was made until the general issue had been pleaded. It came too late.

Nor do we see any error in rejecting the evidence referred to in the fifth assignment. It was not alleged that there was either fraud, accident or mistake in the execution of the agreement in regard to the commissions. Aside from this, the offer did not propose to show that the evidence had any reference to what took place at the time the paper was executed; nor was any time whatever designated when the alleged modification of the original agreement was made.

As there was nothing in the case to contradict the documentary evidence, it was not error to instruct the jury to find for the plaintiff.

Judgment affirmed. A. B. W.  