
    Morgan v. Morgan et al., Exrs.
    Plaintiffs’ statement set forth a claim, based npon a due bill of defendant to plaintiffs’ testator, averred the death of testator, and the subsequent payment by defendant to plaintiffs of a portion of the indebtedness. The affidavit of defense alleged that, by the provisions of the will, the sum represented by the due bill was not to be repaid to plaintiffs, and that the portion paid was paid in ignorance of the terms of the will. The testator, in his will, dated after the date of the due bill, directed that, at the death of his wife, the residue of his estate, after payment of debts and certain legacies, be divided into as many parts as there were nephews or nieces, children of his brothers, at that time living, or represented by issue, if dead; alleged that he had theretofore made advances to a brother, the defendant, and directed that a proportionate part of the outstanding amount of those advances, or any indebtedness due from defendant, be deducted from the sum total of the shares of defendant’s children, before distribution, and added in equal parts to the shares of testator’s other nephews and nieces. Held, that the affidavit of defense was insufficient to prevent judgment.
    Per Curiam. The distribution cannot be made in the common pleas. For anything that appears in this record, the money due upon the note in controversy may be needed for the payment of debts.
    Jan. 16, 1889.
    Error, No. 57, July T. 1888, to C. P. No. 2, Phila. Go., to review judgment for want of sufficient affidavit of defense, in an action of assumpsit, at Dec. T. 1887, No. 762.
    Plaintiffs’ statement averred that the suit was founded on the following instrument:
    “Baxter Telephone,
    No. 236-2.
    “ Philadelphia, February 11, 1884.
    “■Due Joshua Morgan two thousand dollars, payable on demand.
    . “ $2,000. “ Samuel Morgan.”
    
      The statement further averred that Joshua Morgan died on August 15th, 188Y, having first made his will, probated in Philadelphia, and letters were duly granted to Joseph Morgan and Joshua R. Morgan on August 25th, 188Y; that afterward, on October 29tb, 188Y, the defendant paid, or caused to be paid, to the plaintiffs, on account of the indebtedness, $600, and that there is justly due and owing from the defendant to the plaintiffs the sum of $1400 with interest on $2000 from February 11, 188Y, to October 29, 188Y, and on $1400 from October 29, 188Y, to February 6, 1888.
    The affidavit of defense alleged the following as defense:
    By the provisions of the will of Joshua Morgan, the sum represented by the due bill was not to be repaid to the executors. The sum of $600 paid by defendant to plaintiffs, as set forth in the statement filed, was paid by defendant in ignorance of the terms of the will.
    By his will, dated August 28,1884, and annexed to the affidavit of defense, Joshua Morgan, having first directed payment of his debts and funeral expenses, gave all his estate to his executors, in trust, to pay the net rents and income to his wife for life, and, after her death, to dispose of the principal, as directed. After eight bequests', some specific and others pecuniary, he directed that the residue of his estate be divided into as many parts as there were nephews or nieces, children of his brothers James, Joseph, Samuel, ana Edwin, at that time living, or represented by issue, if dead, and then provided:
    
      “ But as I have heretofore made advances to my brother Samuel I direct that a proportionate part of the outstanding amount of those advances or in fact any indebtedness that may be due and owing to me from the said Samuel shall be deducted from the sum total of the shares of my nephews and nieces the children of the said Samuel before distribution made and shall be added in equal parts to the shares of my other nephews and nieces or their issue and I give devise and bequeath one each of the shares thus ascertained — the distinction between the shares of the children of James Joseph and Edwin and the shares of the children of Samuel to be always kept in view — to each one of my nephews and nieces children of my brothers James Joseph Edwin and Samuel at that time living or their issue if dead.”
    Testator further expressed the wish and desire that no part of his estate be sold or disposed of until after the death of his wife; but if it was deemed advisable to sell a house in Philadelphia, describing it, the executors were authorized to sell it.
    Judgment was entered for want of a sufficient affidavit of defense, for $1,538.66.
    
      The assignment of error was as follows: “ The court erred in entering judgment for the plaintiffs.”
    It is stated in defendants in error’s paper book that all the personal estate of the testator, other than the due bill in suit, except about $300 in money, is specifically bequeathed, and that the' testator’s debts aggregate upward of $1,500, which were due by the testator at the time he made his will.
    
      E. Cooper Shapley, with him John J. McCaffrey, for plaintiffs in error.
    The due bill is either included in what the testator in his will calls “ advances ” or represents an indebtedness. If defendant ¡now has to pay it, how can it be deducted from his children’s share?
    As was said in Smith’s Ap., 2 Pa. 260 : “ It is evident that the testator considered him to be a needy man, and meant to relieve him.”
    The widow can only derive income from the estate in the executors’ hands. The language of the will shows that this . item was not intended to come into the executors’ hands. The entire will must be read together.
    The will means the executors are not to receive payment of the indebtedness, but are to have it present before them at the time of distribution, as an indebtedness then, and, as such, are to deduct it from a particular share.
    As the will is dated six months after the due bill, it is evident that the language was used in view of the indebtedness.
    
      Joshua R. Morgan, for defendants in error.
    Under the first direction contained in the will of the testator, that all his just debts and funeral expenses be paid and satisfied, the whole of ithe estate, of which the testator died seized and possessed, vested in the executors to carry out this provision of his will, and as the testator has expressed his wish and desire to be that no part of his estate shall be sold or disposed of until the death of his wife, it makes the indebtedness due on the obligation sued upon the only available asset for the payment of testator’s debts.
    The intention of the testator manifestly was that the first recipient of his bounty, his widow, should have and enjoy as great an estate as he himself had had and enjoyed. Therefore, not only have the executors a right to collect the indebtedness, but, being chargeable therewith, are bound to do so.
    In that portion of the will which the plaintiff in error alleges relieves him froiu the payment of the indebtedness, there is no discharge or release to defendant from the’ obligation of paying any indebtedness due by him to the testator. It is apparent that the testator simply intended to give the remainder-men, other than the children of plaintiff in error, the right to compel the shares of the children of plaintiff in error to contribute to them such a sum as they would have received had this indebtedness been paid by plaintiff in error; for the testator says that a proportionate part of the outstanding amount of the advances or indebtedness at the time of distribution is to be deducted, but not the amount outstanding at the time of the death of the testator.
    The plain intent of his will is that if this indebtedness should be uncollectible, by reason of the plaintiff in error being execution^ proof, then, upon the distribution of his estate, the deduction is to be made, so that tbe shares of all the nieces and nephews will be as nearly equal as possible.
    The remainders to the nieces and nephews are contingent, and at the time of distribution there may not be any child or children of the plaintiff in error in being; or the total amount of their shares may be less than the amount of the indebtedness of their father. How, then, is it to be argued that the deduction of the said indebtedness is to be made at all events ?
    Smith’s Appeal is not a case in point.
    Jan. 21, 1889.
   Per Curiam,

The affidavit is clearly insufficient. It shows no defence against the note in suit. It will be time enough to pass upon questions of distribution arising under the will of Joshua Morgan when the account of his executors shall have been filed, and the matter comes before the proper orphans’ court. The distribution cannot be made in the common pleas. For anything that appears in this record, the money due upon the note in controversy may be needed for the payment of debts. The right of the executors to collect the note cannot be successfully questioned. •

Judgment affirmed. W. T. B.  