
    Toner against Taggart administrator of Toner.
    
      Philadelphia, Saturday, April 10.
    
      A deposited in at different? times, for a pursafd llegad mentioned to B, 10,000 dollars, tor which he refused to take receipts. At the same time he had various dealings with B, and paid him money, for which receipts were taken. Jl, who had been brought up in B’s store, and assisted by him in business, often expressed his gratitude, said that he owed B every thing, and that in case of his death, B or his family should not lose by it. Being in ill health, he was pressed to make a will; but replied “ B (or his family) should be secured whether or not.” At another time he said he would leave 8000 dollars to one of B’s children At a third time he said that he was worth 20,000 dollars, that half of it was enough for him to trade on, and that he had placed, or meant shortly to place, the remainder in ¿?’s hands, for the proofs of his friendship on opening store &c. and would leave what he died possessed of to B’s family. After A’s death a paper was found in his pocket book with his signature, in these words; “ I Kacknowledge to be indebted to B in the stun of 8000 dollars, value received of him. “ Philadelphia, June 15, 1805.” This date was about the time of his saying that B should be secured whether or not.
    
      Held, that under the circumstances of the case, this writing should be considered as evidence of a debt due by A to B; and that B, who took out administration to A, might retain the amount as in case of a debt. But that it was not a testament, and if it was, it must be proved in the register’s office, before this Court could give it effect.
    
      r a ,'HIS was an appeal from a pro forma decree of the Orphan’s Court of Philadelphia county,
    The aPPebee; who was administrator of Philip Toner, filed his account in the register’s office; and the auditors to whom it was referred, found a balance in his hands of 10,233 dollars 38 cents, of which 2233 dollars 38 cents was“ passed to the credit of Toner's estate, and 8000 dollar credited to the appellee as retained by him, undt r the circumstances hereafter stated. Upon this report a decree passed in his favour without prejudice, and an appeal was entered on behalf of the next of kin.
    The facts were in substance these: Philip Toner the intestate, died in November 1805, unmarried, and without issue, leaving as his next of kin, four sisters in Ireland, and a brother recently arrived in the United States, who was with him when he died. He left personal property to the amount of about 20,000 dollars. Toner was brought up in the appellee’s store, possessed his confidence, was ultimately employed as his clerk, and had the receipt of his cash. In 1800 he entered into business on his own account, in the grocery line, which was that of Taggart also; and by his bank books it appeared, that within a few months afterwards, his deposits amounted to ten thousand dollars, although he began without any visible property, and had not until after this taken up even the wages due to him as clerk, amounting to about a thousand dollars. The friendship of Taggart was variously manifested to Toner in his new business; and they had occasionally together transactions of buying and selling. On the 2d of January 1804, Toner paid to Taggart's clerk a balance of 60 dollars 61 cents, due for merchandize, and took a receipt; and at the same time gave him a check for 4000 dollars, for which he refused to take a receipt, saying that he had a reason for it, and that he meant to put 10,000 dollars into Taggart's hands, for a certain purpose, which he had mentioned to Taggart. At different times between this and the 21st of June 1804, Toner paid to Taggart 10,000 dollars, always taking receipts for what he paid upon a merchandize account, and refusing them for • the component parts of this sum, no part of which was ever withdrawn from Taggart during Toner's life time. To one witness Toner said that he should not have been worth a cent but for Taggart, and that he should leave 8000 dollars to one of Taggart's children. In 1804 he informed another witness that he was possessed of property to the amount of more than 20,000 dollars; that half of that was sufficient for him to trade on, and that he had placed, or meant shortly to place, the remainder in Taggart's hands, for the proofs of * friendship he had received on opening store, and afterwards; that ttfhat he should die possessed of, he meant to leave to Taggart and his children, of whom the third child should have the greater part; and he requested the witness to make a will for him accordingly, but it was never done. In 1805, Toner’s health became impaired by the intemperate use of spirituous liquors. In the summer of that year he went to ■ Cape May, where in conversation with á respectable clergyman, he said he owed every thing to Taggart, and that in case of his death, Taggart, or his family, the witness was not sure which, should not lose by it. The clergyman advised him to make a will. He replied that Taggart, or his family, should be secured whether or not. He returned to the city, and died in the November following. After his death, when the appellee was making search among his papers, for a will which it was supposed he had left, the following memorandum in the handwriting of Toner, was found in his pocket book. “ I acknowledge to be indebted to Mr. “ John Taggart in the sum of eight thousand dollars, value “received of him. Philadelphia, June 15, 1805¿ Philip “ Toner.”
    
    
      J. R. Ingersoll and Tilghman for the appellant.
    It is impossible to doubt that the intestate entertained a purpose of bounty to Taggart or his family, or to some one of them, though to which is extremely uncertain: but it is sufficient for the next of kin, that whatever this purpose was, it was inchoate and unexecuted during his life, and has not been completed by any instrument to which the law can give effect as a will.
    That it was not effectual during his life, is manifest. He kept the paper privately in his own custody, he did not make it known to any body, and he therefore retained, and intended to retain, a control over it during his life. During, his life then it was a.matter merely initiate, designed perhaps to be carried into effect, by a will, but per se nothing; and he probably was prevented from thus carrying it into effect, by the recollections of his family in Ireland, and the arrival of his brother the appellant. The case strongly resembles Disher v. Disher 
      
      . There Disher by a note under his hard, promised to pay his bi other 5000/., and kept the note in his own custody; but his brother knew nothing' of it until after Disher’s death, when the note was found among his papers. The lord keeper decreed that it should be looked upen as a matter initiate or intended, and never perfected, and that it was no debt at all. To give it effect, there should have been a delivery, or something equivalent.
    It cannot take effect as a will, because it has nothing testamentary in its nature, and was not so intended by Toner. Bv his conversation with the clergyman, he shews that he had no idea of having made a will, at a time subsequent to the date of the instrument. But whether will or not, it cannot .be set up as a will in this Court at present. An administration is outstanding, and the administrator is now a party. While this is the case, intestacy must be presumed. This Court cannot take jurisdiction of a will of personal 'estate, in the first instance; it must be proved before the register. If it is a will, it defeats all the proceedings below, which are founded upon an intestacy.
    The testimony of none of the witnesses supports the instrument. To one the language of Toner was, that he would leave 8000 dollars to one of Taggart’s children; to another, that what he should die possessed of he meant to leave to Taggart’s children, particularly the third eldest; and to a third, that in case of his death, Taggart or his family should not lose, and that whether he made a will or not, he or his family should be secured. This last expression is certainly the most to the purpose of the appellee. But it was made after this writing. The language is prospective, it promises some future act, which was never performed.
    How is this paper to take effect? Not as evidence of a debt, because of that it is but prima facie, and on examination of the accounts, it appears that he was not indebted, but a creditor to a large amount. Not as an appropriation, because in form there is nothing like it, and in substance there, can be no appropriation unless there is notice, or something to make the act irrevocable on the part of him who appropriates.
    If there was an intention on the part of Toner to give 8000 dollars to Taggart, consummated by a final act, the money is his. If he ever alluded to the paper as an act completed with that view, it will answer; but there is nothing of that kind. The manner in which Toner obtained the money, and the motives which led to his conduct, are of no importance; except, that to allege as Taggart has done, that Toner robbed him of it, cancels all the equity that he might otherwise have. '
    
      Hopkinson and Ingersoll for the appellee.
    The conduct and the motives of Toner are involved in the greatest mystery. The only satisfactory explanation which any one can give, is, that having erred in the outset of life, he felt an honest disposition at the close of it to remedy the error, without having resolution enough to confess it. The expedients he resorted to were intended to satisfy his conscience, without wounding his pride. That he intended this money for Taggart, no one can doubt; the only question is whether his intention has been carried into effect. We contend that it has, in a manner which distinguishes the case from Disher v. Disher, and all other cases of mere promissory engagements; namely, by the deposit of the money in Taggart’s hands, and the refusal of receipts, while for all other transactions he uniformly took them, and by the execution of this instrument to prevent his representatives fr?>m ever reclaiming the money. Here was intention consummated by two unequivocal acts; and to the last of them, it is clear that Toner alluded as an act done, when he said, that whether he made a will or not, Taggart should be secured.
    Cases of this sort turn upon the intention of the party. In Disher v. Disher, the note was set aside, not merely because it was a promise never communicated, but because the promisor subsequently married. In Naldred v. Gilham 
      
      , the case of a voluntary settlement, made by an aunt, in favour of her nephew, and kept in her possession, the Court did not go upon the ground that there was a want of delivery, but on the ground of her not intending to be bound by it, which was manifested by. her refusing to give a copy to her nephew and his friends, although when she made a second settlement in favour of another person, she gave possession of it. So in Ward v. Lant 
      , where a father executed a bond to his daughter, payable immediately, but always kept it by him in his lifetime, and it was found after his death among his papers, it was decreed to be set aside, not upon the ground of non-delivery, but on the ground of intention, " the father having executed it only to protect him from paying taxes for his money. But where intention supports the deed, it is enforced even against a subsequent will, though it be purely voluntary, and never out of the party’s possession. Boughton v. Boughton 
      , The Lady Hudson’s Case, cited in Clavering v. Clavering 
      , Seton v. Seton 
      .
    The writing in question may take effect in various ways. First, as an acknowledgment of debt; and if the party confesses it, who shall deny it, particularly under circumstances like these, where the funds with which Toner commenced his business, are involved in such mystery. By Taggart’s books it is true there is no debt by Toner; but Toner’s whole conduct shews beyond all doubt, that he knew of transactions which did not appear on Taggart’s books.
    It may take effect as an appropriation, because the money was already paid to Taggart, and the only doubt is for what purpose, which this writing distinctly points out.
    It may also be used as a testament; not in support of an action for recovery of money, because to that probate is essential, but by way of defence. Toner intended this instrument to be used after his death; and almost any thing, a letter, a memorandum, if so intended, may be proved as a testament. But if there is any difficulty about the technical character of Toner’s act, whether debt, appropriation, or testament, there is clear evidence of intention connected with acts, to benefit Taggart to the extent of 8000 dollars, and this Court, proceeding upon equity principles like the Orphan’s Court, will never compel him to account for that sum.
    
      
       1 P. Wms. 204.
      
    
    
      
      
         1 P. Wms. 577.
      
    
    
      
      
         2 Eq. Abr. 283.
    
    
      
       1 Atk. 625.
      
    
    
      
       2 Vern. 476.
    
    
      
       2 Bro. Ch. Rep. 611.
    
   Tilghman C. J.

after minutely stating the facts, and the writing found after Toner’s death, delivered his opinion as follows:

It has been contended by the counsel for the appellant, (the decree having been entered in the Orphan’s Court by-consent, in order to bring the case before this Court) that this writing was no more than an inchoate act, which was never completed. That Toner by keeping it secretly in his own hands, shewed his intent that it should have no effect ” during his life, and that as a will it could not operate, having nothing about it of a testamentary nature. On the other hand, the counsel for the appellee argued, that it might take effect either as a will, or as an appropriation of so much money of Toner in the hands of Taggart, or as an evidence of a debt due from Toner to Taggart. It does not appear to be of a testamentary nature, nor if it were, can we establish it as such in this collateral way. Every kind of will must be proved before the register, although in case of dispute it may be brought into this Court by appeal. If effect can be given to this writing, it is our duty to give it, for it certainly was the intention of the intestate to do something considerable for Taggart or his family. It is confessed that if Toner ever alluded to that paper as an act done in favour of Taggart, it would be sufficient for its establishment. Now it is clear to me that he did allude to it, when he told Mr. Potts that Taggart should be secured, whether or not. This declaration must probably have been made shortly after the date of the writing. It is objected that a should be secured” must have reference to a future act. But I think nothing of that objection; it is founded on a grammatical criticism, which is easily obviated, by reflecting that Toner might not have been an accurate grammarian, or that Mr. Potts might not have recollected the precise expressions made use of. The writing is exactly what such a person as Toner might have supposed to be a sufficient security, in case, of his death without a will. It is material that Toner never drew his money out of Taggart’s hands, persevering to his death, in his purpose of appropriating 8000 dollars to Taggart’s use. No doubt the paper remained in his power, and if he had made a will, it is probable that he would have cancelled it. But not having made a will, and the writing remaining in existence, it serves to answer the very purpose intended. But it is objected, that so far from being in Taggart’s debt, Toner was his creditor to a great amount at the date of the writing. He certainly was so, as far as we have any certain evidence by books and papers. But there may have been secret transactions unknown to us. It has nof been made to appear in what manner Toner acquired thq considerable sums deposited in bank soon after he opened his store. Conjectures have been made, but they are only conjectures. The matter has not been accounted for. It is involved in something of mystery. Why then, when the man has said, that he was indebted, and when he undoubtedly intended to throw at least 8000 dollars into the family of Taggart, shall we take pains to defeat his intention, because we cannot discover how the debt was contracted. No evidence is so strong as a man’s own confession, and I am content to take the fact as Toner has stated it. I take no particular notice of the cases cited on the argument, because it is a matter of intention to be inferred from all the circumstances of each case. Enough appears to satisfy me that the intestate kept this paper by him with a view of securing to Taggart 8000 dollars, and therefore I am of opinion, that the decree of the Orphan’s Court should be affirmed.

Yeates J. was prevented by sickness from giving any opinion.

Brackenridge J.

The placing the amount of 10,000 dollars and upwards in the banks of this city, without any visible funds from whence that could come, induces the suspicion that it must have been detracted occasionally from the money of the master, so as not to be missed. The master, Taggart, would seem from the testimony to have entrusted him with the handling of his cash. It could not reasonably be supposed to have* been from private speculation, or from his wages saved for five years. One thousand dollars and upwards for wages is charged in the book of Toner to himself, as received after this deposit in the banks. This embezzlement was probably with the original intention of replacing the money as soon as he should be able; and under this idea, without supposing him ultimately to have intended a fraud, he might have reconciled it to his conscience. In pursuance of this intention, and having been fortunate in business, in less than five years, he actually places in the hands of Taggart, the master, through the medium of his clerks, and had entry in his books to the amount of 10,000 dollars, for which he would take no receipt, whereas with regard to other credits for monies in those books he took receipts. I would take the 8000 to be the sum originally embezzled, and this, with the. addition of one-fourth, according to the law of Moses, in the case of restitution, to have accounted for the "placing the 10,000 dollars; two thousand the one fourth of eight thousand. It would seem to have been a struggle in his mind how to get the restitution accomplished, without avowing the original breach of trust, which he had not resolution to do, and which he may have thought was not necessary to be done, provided the same justice was rendered, and the original replaced with what would, at least, cover the interest. It is evident that he sometimes thought of a devise to Taggart, or some of his children, and it is probable that the coming of his brother from Ireland, and the dulcís moriens reminiscitur Argos, the idea of urikindness in giving so much to a rich man, and neglecting pro tanto his poor kindred, was in his way. But for this all might have been set right by a will. But it would seem to relieve from this, to acknowledge himself to have been indebted originally in the sum taken, the 8000 dollars. This was done by the memorandum left behind him, and may be considered as a credit in the way he intended it, as a set off against the claim which his relations might advance to the surplus in the hands of Taggart as a trustee for the use of Toner. The document would rebut the idea of a trust, so far at least as the sum of eight thousand dollars.

The mipd of Toner would seem to have occasionally vibrated on the ways and means by which he might conceal his shame, and satisfy his conscience, fie had spoken of a devise under the idea of a sense of gratitude for assistance in setting up and carrying on business; this possibly the better to hide the real consideration. He was advised by a witness (Potts) to make a will; and he had been speaking of making a will in favour of Taggart, under this consideration of gratitude. The expression in the reply of Toner is remarkable: “ Mr. Taggart and his family should be secured whether or not.” This was in the summer of 1805; and the securing must have had a reference to the money which he had placed on the books of Taggart, taking no voucher, or to that instrument which he had in view to leave, and did leave behind him. Either of these, or both, would seem in his opinion to secure Taggart. I need not say whether this paper could be proved as a testamentary paper, but it must come through that medium before it could be acted on as a gift'by devise. But as giving it an operation by way of credit, I can have no difficulty. I could by no means reconcile it to myself to consider it otherwise. I am of opinion therefore that the sum of 8000 dollars be placed to the eredit of Taggart the administrator in this case.

Decree confirmed.  