#### Schall *v.*Fogel.

Benj. Fogel died leaving to survive him, a widow, three sons and three daughters. By his will, he devised certain realty to each of his sons charged with an equal legacy to each daughter. He also devised to his son William his homestead, subject to the right of the widow to live there for life, and, after the death of the widow, William was to pay $3,600 for the same, in three annual installments of $1,200 each, one of these to be paid to each of the daughters. The rest of the estate was to be divided equally between the six children. The daughters filed a caveat against the will, but subsequently withdrew it, and assigned, for a valuable consideration, all their right, title and interest, in and to, “ all money or monies now due or hereafter falling due to them, or either of them, as legacies or distributive shares in the estate” to William, Willoughby and John, sons of the testator. After the. death of the widow, Willoughby’s executors brought an action of assumpsit against William, to recover his share in the two accrued payments of $1200 each, the consideration for the homestead, which, under the will, was to have been paid to the daughters, the sons claiming that the joint interests in legacy and assignment had been severed. A release by John of all claims on account of the settlement of the estate and the installments under the assignment was given in evidence. The court charged, in effect, that the will and assignment gave the interests jointly, and before there could be a recovery, it must appear that there had been a division of the interests, leaving this question to the jury. *Held,*on verdict and judgment for defendant, to be no cause for reversal.

In such case, it was not error to offer in evidence a note drawn by the widow of Willoughby, who was also an executrix, to the order of the defendant, offered, notas a set-off, but as evidence to defeat the plaintiff’s claim by showing that, in a settlement of Benjamin’s estate, Willoughby had received the amount of the note in excess of his share, and that it was to be held to’ show up against the claim in suit.

Feb. 7, 1889.

Error, No. 190, to July T., 1888, to C. P. Lehigh Co., to review a judgment for defendant in an action of assumpsit, by Rosina A. Schall et ah, daughters and legatees of Benj. Fogel, deceased, to the use of John PI. Fogel and Willoughby Fogel, deceased, now to the use of the surviving executors of Willoughby Fogel, deceased, against William B. Fogel, at Jan. T., 1888, No. 17. Williams and McCollum, JJ., absent.

The plaintiff’s statement is not given, but the action was brought Nov. 29, 1887, to recover two installments of $400 each, respectively falling due on March 1, 1886, and March 1, 1887, with interest from those respective dates, upon facts stated below. The plea was nonassumpsit.

The evidence on the trial, tended to establish the following facts, before Albright, P. J.:

Benjamin Fogel died in 1869, seized of a large estate and leaving to survive him a widow, three sons and three daughters. By his will, he devised to each of his sons certain tracts of real estate charging upon each respectively a legacy of $6,500 in favor of one of the daughters, designating which daughter each son should pay out of his farm. Fie further gave to his son William B. Fogel, his dwelling house with a nine acre lot, for which the latter was to pay $3,600, in three ánnual payments of $1,200 each, to begin one year after the death of his widow, and to be paid to his three daughters, Rosina to get the first payment, Elizabeth the second, and Catherine the *377third. The personalty was directed to be sold and divided equally among the six children.

The daughters filed a caveat against the probate of the will, but subsequently withdrew the same and entered into the following agreement:

“Articles of Agreement entered into May 31, 1869, between Willoughby Fogel, William B. Fogel and John H. Fogel, all of Upper Macungie township, Lehigh county, and Commonwealth of Pennsylvania, sons of Benjamin Fogel, late of said township, deceased, and John R. Schall and Rosina Ann, his wife, of said township, George Deily and Eliza, his wife, of the borough of Catasauqua, in said county, and William C. Lichtenwallner and Catharine, his wife, of the city of Allentown, in said county, the said Rosina, Eliza and Catharine, his daughters, of the said Benjamin Fogel, deceased, witnesseth:

“ Whereas, certain proceedings are pending in the Register’s Court of Lehigh county relating to the validity of the last will and testament of the said Benjamin Fogel, deceased, dated Sept. 7,1862, and witnessed by Daniel Bittner, Jan. 16, 1865, and whereas a precept has been issued to the court of common pleas of said county toward an issue to try the validity of the said last will and testament:

“ Now, know all men by these presents, that, in settlement of all proceedings pending in said Register’s Court and of the said issue awarded, and of all claims of the said daughters for distribution, shares and legacies in said estate, and_ of all claims that said daughters on this part of the said estate, that it is agreed as follows, to wit:

“ I. The said application for said issue in the Register’s Court, is withdrawn, and all opposition and contest to the probate of said last will and testament, and the Register of Wills in and for said county is hereby authorized and directed to admit to probate the said last will and testament as the last will and testament of the said Benjamin Fogel, deceased.

“ II. The said John R. Schall and wife, George Deily and wife, and William C. Lichtenwallner and wife, hereby assign, transfer and set over to the said Willoughby Fogel, William B. Fogel and John H. Fogel, all the right, claim, title and interest of the said wives to any money or moneys now due or hereafter falling due to them, or either of them, as legacy or legacies, or distribution share or shares in the estate of the said Benjamin Fogel, deceased.

“III. The said Willoughby Fogel, William B. Fogel and John H. Fogel, as executors of the said Benjamin Fogel, deceased, hereby remise, release and forever discharge the said John R. Schall and wife, George Deily and wife, and Williám C. Lichtenwallner and wife, and each and every of them, of all claim and demand whatsoever, by reason of advancements or indebtedness in any manner, whatsoever in favor of said estate, except as hereafter specified.

“ IV. The said John R. Schall and wife, George Deily and wife, *378and William C. Lichtenwallner and wife, for themselves, their heirs and assigns, hereby convey and grant to the said John H. Fogel, his heirs and assigns, all those three certain lots of ground situated in said Upper Macungie township, and in said last will and testament of the said Benjamin Fogel, deceased, to the said wives, and in said last will and testament described. To have and to hold to him the said John H. Fogel, his heirs and assigns forever.

“ V. The said Willoughby Fogel shall enter into an obligation, with approved security, to the wife of the said John R. Schall for the payment of the sum of $14,000, with interest, at the expiration of one year from the death of the said Benjamin Fogel. From said $14,000 it is agreed there shall be deducted any notes which the estate of Benjamin Fogel, deceased, may hold against the said John R. Schall and wife, or either of them, interest not to run until the time fixed as aforesaid, except that the excess of said notes, if there be any over $2,400, shall have interest from maturity. The said William B. Fogel shall enter into an obligation with approved security to the wife of the said George Deily for the payment of the sum of $14,000 in six annual installments, and the whole sum to have interest from March 8, 1870. From said sum of $14,000 it is agreed there shall be deducted any note which the estate of the said Benjamin Fogel, deceased, may hold against the said George Daily and wife, or either of them, interest to run until the time fixed as aforesaid, except that the excess of said notes, if there be any over $3,400, shall have interest from maturity. The said John H. Fogel shall enter into an obligation with approved security to the wife of William C. Lichtenwallner for the payment of $14,000 in six annual installments, and the whole sum to have interest from March 8, 1870. From the said sum of $14,000 it is agreed there shall be deducted any note which the estate of the said Benjamin Fogel, deceased, may hold against the said William C. Lichtenwallner and wife, or either of them, interest not to run until the time fixed as aforesaid, except the excess of said notes, if there be any over $2,400, shall have interest from maturity.

“ VI. The receipt of which said three several obligations is hereby acknowledged.”

The three sons, who were the executors of the will, accepted the devises of the real estate. The widow of Benj. Fogel died Feb. 28, 1885.

On the trial, William B. Fogel testified that there was a settlement between himself and his brothers, John and Willoughby, of the proceeds of their father’s estate; that John had given him a release, and that, in that settlement, Willoughby was indebted to him in the sum of $1,365 ; that he had several times attempted to get a release from Willoughby Fogel’s executors for their share in the $3,600, but failed. Fie further testified that Maria F. Fogel, the widow of Willoughby, and one of his executors, gave him a note m 1875, for the $1365 that Willoughby owed to William, with interest, in all, *379$1,740; that this note was given so that he could show it as a set-off against the $1,200.

Defendant then offered in evidence this note, drawn by Maria F. Fogel to order of William B. Fogel, for $1,740, dated Oct. 29, 1875. Objected to as incompetent and irrelevant; because this suit is by the executors of Willoughby Fogel, deceased, and for the benefit of his estate; and the note is signed by Maria F. Fogel; and because more than six years have elapsed since the note became due.

Defendant’s counsel stated that the note was not offered as a set-off to the claim, but, in connection with the testimony of Wm. Fogel, for the purpose of showing that, on a settlement of the indebtedness of the estate to William B. Fogel, the executors agreed that he should take and hold this note drawn by one. of the executors, and signed by one who was also the only legatee named in the will, for the express purpose of holding it to show up against the claim of $1,200 charged on the land.

Counsel for plaintiffs stated, in reply, that the maker of this note is not the sole legatee in the will of Willoughby Fogel, deceased, and this claim did not pass to her under the will of said deceased.

The Court: “ My present impression is that this evidence can not avail the defendant, but, in order that the whole case may be on the record, I will admit it. Objection overruled, the note is received, and bill sealed for plaintiffs.”

Plaintiff presented the following point:

“ Under the undisputed evidence in the cause, the verdict of the jury must be for the plaintiffs for the sum of $400 with interest from March 1, 1886, and $400 with interest from March 1, 1887, making a total of $908. *Ans.*Negatived.” [1]

The court charged the jury, inter alia, as follows :

“ In their statement of claim they state they claim $1,200, I believe the $1,200 which fell due the first year after the widow’s death. A point has been made in your hearing, that because of that statement they could not recover what they now claim. The court decides that question against the defendant; and so, although the statement demands $1,200 due in 1886, yet, if it appears from the facts, under the instructions I give to you, that there is due to Willoughby the two installments, each of the two gales of $1,200, the plaintiffs may recover it. If it becomes necessary, the statement may be amended hereafter so as to describe what was demanded finally here and referred.

[“ Now, gentlemen, one of the difficulties in this case, and one of the phases of the case that raises a question of fact for you to decide, is this Is Willoughby, or, rather, his executors, entitled to sue for a third of this $3,600? The plaintiffs allege that the third of that $3,600 is due; but, as to the last $400, the time hadn’t come, when they brought this suit, to demand the last $400. The last of *380the three installments of $1,200 fell due in February, 1888; that is past, but they brought this suit before that time. The law is that one can only recover what was due at the time of the suit. The difficulty is this: It can nowhere be found, from the will nor the agreement of the parties — the assignment of the daughters to the sons — that there was given to Willoughby Fogel one-third of this $3,600, and to John one-third, and William to keep one-third for himself. But this $3,600, and everything else that the daughters had in their father’s estate, was given jointly to these three men, and before Willoughby can demand, at the hands of William, $1,200, it must appear that, in the division of all of the father’s estate, that came to these sons under that assignment, where the sisters gave everything to them jointly, that Willoughby was entitled to the third.] [2] .... They must show that, in the division of the father’s estate and in the division of what his three sisters assigned jointly, so much is due to him who claims it. In other words, it stood in this wise: After the daughters assigned all their shares to the brothers, that William Fogel owed $3,600 for the nine acre lot, and that was one of the assets or items of property these three sons had in hand, and they had a right to have an equal division made. And if, of the other assets, John and William and Willoughby got an equal share, then it left William indebted to each of them $1,200. [The question has been referred to you, whether, from what has been shown in this case, the action of the parties, their management of the estate, and this great lapse of time — 18 years or more since Benjamin died — whether you can reasonably and naturally and safely infer that these three brothers made a division of what thus came to their hands, and whether it left them equal. If that does not appear, and you do not find that a fact, then you must find for the defendant for the reason that it is not shown that what the three men severally owned was divided between them, and there must be á settlement among them in equity, or some way to settle their rights. If that does not appear, you will find for the defendant.] [3] But consider that this was 18 years ago; and consider what was done; consider, that John gave to William a release of all his interest out of his father’s estate; and consider what William said in his testimony here to-day; and, if you find that they did divide up things, and that the only thing left to divide was this $3,600, and possibly what Willoughby had received more than his share— I am inclined to the opinion, gentlemen, that if William B. Fogel had not testified to it, I should have been compelled to say to you, that the plaintiffs could not maintain this action, because it did not appear that the affair among these three brothers was settled. But he said that, in a conversation between the executors of Willoughby, he told them about this $1,200 that Willoughby ought to get out of his land, and that Willoughby had something more than he got out of the division in Benjamin’s estate. When we take the testimony as to one thing, we must take all. The admission, that Wil*381loughby could claim $1,200 out of his land, would be evidence that things had been adjusted in some way. But you should also regard what he said further, that he and Willoughby had some adjustment in the lifetime of Willoughby, and Willoughby had more than his share out of his father’s estate. Then, gentlemen, if you find there was such a division which entitles the plaintiffs to maintain this action, then find in favor of the plaintiffs for the $400, which was due in February, 1886, with interest from that time, and the $400 due in February, 1887, with interest from that time to this date — unless you find, that the matter was adjusted and in equity, the plaintiffs had no claim.....

[“ Now, gentlemen, I think I can direct your minds rather pointedly to what I mean in reference to that meeting between William Fogel and Robert and Mrs. Fogel, to which he testifies, and the giving of the note and what it means, if I suppose this case: That William Fogel was suing Mrs. Fogel on that note of $1700 and interest; and suppose that case was trying before you, and the evidence was just what you have on that point now; and suppose that the executors or administrators of Maria F. Fogel were to say that she gave this note to William, but that she did not owe it; that she did not owe it because it was not intended between the parties when that note was made that Maria should owe William $1700, but that it was given because William claimed that Willoughby, in the division of Benjamin’s estate, got thirteen hundred and odd dollars too much, and William admitted that Willoughby, or his representatives, had to get $ 1200 out of the lot devised to him; and in order that W.illiam might have something to show up for the debt of Willoughby, and in order that when the old lady died, when the $1200 came up, the one might be set-off against the other. Then the court would say to the jury, if that is plainly proved, and the jury is convinced that was the fact, Maria does not owe the $1700 note, but it is to be taken as the parties intended at the time. Now, that is not the case trying, but, in my opinion, it will inform you how in justice you should look at this transaction.] [6] ....

[“ So we submit this case to you, and upon that branch of it we say to you, that if you find the first branch against William; that there was a division among the brothers and that Willoughby was entitled to receive the $1200 — if you find that Willoughby’s representatives were in a position to sue — then we say, there must be a verdict against William for the $800 and interest, unless he satisfies you that it was adjusted between him and Willoughby’s executors. If he cannot prove it was adjusted, you will find against him. While, if he has made that out, to your satisfaction, then you will say that William Fogel, and those who were to settle the estate of Willoughby Fogel, adjusted the matter, that the note did not mean a debt, but that it was recognized that Willoughby, in the division of Benjamin’s estate, had more than his share, and that that was coming to William, and that it was then understood by the *382executors that, when the old lady died, Willoughby was to have no part of it, but that the *$1700*met and discharged it.] [4] As I said to you, I will go back to the first branch of the case. One of the elements which may enable you to find there was an adjustment between the three brothers, thus entitling Willoughby to a share out of the $3600, is the fact we have that John gave a release. If I am right, John did not give the release to Willoughby and to William, and John didn’t say, in his release, that he had received *$1200*out of the nine acre lot, but my impression is John gave a general release to William, stating'that he, John, agreed that he had nothing more to claim out of his father’s estate. That is a circumstance bearing upon the question whether an arrangement was made between the three brothers when they settled up these matters of their father’s estate, including the shares of their sisters.”

Verdict for defendant and judgment thereon.

*The assignments of error*specified, 1, the refusal to affirm plaintiffs’ point, quoting it; 2, 3, 4 and 6, the portions of the charge in brackets, quoting them; 5, the admission of the note in evidence, quoting the bill of exceptions as above; and, *7,*in holding that there were any questions of fact in the case for the jury.

*John Rupp,*with him *E. J. Lichtenwallner,*for plaintiffs in error.

—This suit was brought in the proper form. Severgert *v.*Berk et al., 8 S. & R. 308, 311-12.

The note offered in evidence could not be used as a set7off to the plaintiffs’ demand. A set-off must be in the same right, and between the same parties as the demand. Milliken & Co. *v.*Gardner, *37*Pa. 456; Stuart *v.*Com., 8 Watts, 74; Scott *v.*Fritz, 51 Pa. 418.

The obligation to pay the money was in writing, and it cannot be altered or varied by parol, except in cases of fraud, accident or mistake, and even then the evidence must be clear, precise and indubitable. Phillips *v.*Meily, 106 Pa. 536; Jackson *v.*Payne, 114 Pa. 67; English’s Ap., 119 Pa. 533 ; Spencer *v.*Colt, 89 Pa. 314 ; Shepler *v.*Scott, 95 Pa. 329. •

*R. E. Wright,*with him *C. J. Erdman,*for defendant in error.—

Joint owners of clioses in action must join inaction for the recovery thereof. There was sufficient evidence to send the case to the jury. While the scintilla doctrine is repudiated in Bank *v.*Wirebach, 106 Pa. 47, the rule is that when the evidence would justify an inference of disputed fact, it is sufficient. Howard Express Co. *v.*Wile, 64 Pa. 201. The testimony of a single witness should be submitted to the jury, no matter how flatly contradicted. Weaver *v.*Craighead, 104 Pa. 288.

The rule that non-joinder of parties could be taken advantage of only by plea in abatement, deprecated in Dubois *v.*Glaub, 52 Pa. 243, would now seem to be abrogated since the procedure Act o'f 1887.

*383Feb. 18, 1889.

Per Curiam,

This is a somewhat complicated case, but we think the learned judge below took the correct view of it. The assignment executed by the three daughters of Benjamin Fogel to their brothers, passed their entire interest in the estate of their deceased father, whether as legatees or distributees. There was nothing left in them and the whole estate became vested in the three brothers jointly. No one of them has any particular share or part in the property conveyed. The amount each brother would be entitled to out of the estate would necessarily depend upon the result of a settlement between them. Neither of the parties could sue the others for a particular share until the amount of each share should be ascertained in some way. It was not error, therefore, for the learned judge to charge that “it can nowhere be found, from the will nor the agreement of the parties, — the assignment of the daughters to the .sons — that there was given to Willoughby Fogel one-third of this $3,600, and to John one-third, and William to keep one-third for himself. But this $3,600, and everything else that the daughters had in their father’s estate, was given jointly to these three men, and before Willoughby can demand at the hands of William $1,200, it must appear that, in the division of all of the father’s estate that came to these three sons under that assignment, when the sisters gave everything to them jointly, Willoughby was entitléd to the third.” ( See second assignment.) The court, however, left it to the jury to find from the evidence whether the three brothers'had made a division or settlement, and instructed them that, in case they so found, they should render a verdict for the plaintiff. (See third and fourth assignment.) This ruling was quite as favorable to the plaintiff as he was entitled to.

Judgment affirmed.

Note. — In Mills *v.*Daird, 1 Mona. 702, it was held that, in an action of assumpsit on an appeal from the judgment of a justice of the peace, a defendant may set up a defence to disprove the plaintiff’s claim by showing a set-off, although it also proves that the plaintiff owed the defendant an amount in excess of the justice’s jurisdiction, the evidence being admitted not to establish a set-off, but to destroy plaintiff’s cause of action.