Assumpsit. Matthew Hillford by his last will and testament dated February 15, 1763, bequeathed his personal estate to be equally divided between his six daughters and made the following persons his executors — viz, his only son, Thomas Hillford (the present defendant's intestate), and his wife, Ann. All the daughters had died except the wife of this plaintiff and two others who had brought similar suits for their shares. Ann (wife of Matthew Hillford and one of the executors) died soon after her husband, whereby Thomas became sole executor. In `77 Thomas made a settlement with the Orphans' Court by which it appeared there was a balance of £61.0.3 to be distributed, and this action was for the recovery of one third part of it.
Here plaintiff rested, and defendant moved to nonsuit him.
BASSETT, C. J.
The Court have attentively heard the argument, and it is beyond all doubt that at the time of passing the Act for the more easy and speedy recovery of legacies the legislature well knew a legacy could not be recovered at common law. There were then two gentlemen in the House whose legal abilities have never been questioned, one of whom must have penned this Act. (The persons here alluded to were the two Chief Justices of Pennsylvania and Delaware — Hon. Thomas McKean and Hon. George Read, Esquires.) The plaintiff cannot sue at common law without an express promise, and he has not pursued the method prescribed by the Act.
Enter the nonsuit.