author: Mr. Justice Paxson

text:
    Girard Life Insurance, Annuity and Trust Company, Administrator of Edward Magarge, deceased, to use, &c., versus Mutual Life Insurance Company of New York.
    1. Where an insurance company issues two policies of insurance upon the life of the same person, both calling for the same mode of proof of death, and, upon the decease of the insured, the company accepts without objection proofs of death under one policy, the representatives of the insured are not bound, in the absence of a special contract to that effect, to furnish further proofs of loss under the second policy.
    2. Where proofs of death furnished to the company are defective or not in conformity with the policy, it is the duty of the insurers if they mean to take advantage qf this defect to apprise the insured of the fact, so as to give them an opportunity to supply the defect. If the insurers fail to do this, they will be deemed to have waived all irregularity in the proofs.
    3. Where an insurance company has, prior to the death of the insured, declared the policy forfeited for non-payment of premium, the representatives of the insured are not bound, in an action brought upon the policy subsequent to liis death, to show that proofs of death have been furnished in compliance with the terms of the policy.
    4. Where a mutual life insurance company “has in its possession dividends belonging to a policy-holder more than sufficient to pay an accruing premium when "it falls due, the company has the rij ht and is bound, if the premium is not paid, to make such an appropriati n, and cannot declaro the policy forfeited for failure to pay the premiun m question. Especially is this so where the insured had been in the he a of applying'his dividends to the payment of premiums.

      5. "Where a life insurance company, in an action on a’policy, defends on the ground that the premium has not been paid when due, evidence is admissible on behalf of the plaintiff to show the previous course of dealing between himself and the company as to the payment of overdue premiums.
    fi. A stipulation in an obscure part of a policy of insurance, printed in small type, to the effect that receipts of overdue premiums were to be deemed to form no precedent as regards the payment of future premiums, nor to be considered as a waiver of the forfeiture of the policy, is not to be regarded as a condition of said policy, but rather as a qualification of the receipt of premiums.
    7. Where it did not appear at what time such stipulation had been inserted in the policy, but it was proved that overdue premiums had been received thereon, and the company had failed upon two former trials of the cause, and one argument on error in the Supreme Court, to call attention to the fact of its existence, Held, that upon a third trial the company could not set it up as ground of defence.
    8. Where an insurance company in an action on a policy defend on the ground of failure to pay the premiums when due, testimony for the plaintiff to show that the company has been in the habit of notifying the insured when the premiums were due by him, but had in the particular instance complained of failed to do so, is inadmissible in evidence, unless it be shown that the notice has been purposely omitted with the design of forfeiting the policy.
    9. In such case evidence is admissible on behalf of the plaintiff to show a custom or usage among insurance companies to receive premiums within a reasonable time after they fall due, under policies similar to that in suit, if the insured be in good health, notwithstanding the policies contain a clause of forfeiture for non-payment of premiums on the very day they are due.
    January 4th 1881.
    (Re-argument.)
    Before Sharswood, C. J., Mercur, Paxson, Trunkey and Sterrett, JJ. Gordon and Green, JJ., did not sit, being insured in the company defendant.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 138.
    Assumpsit, by the Girard Life Insurance, Annuity and Trust Company of Philadelphia, administrators of Edward Magarge, deceased, to the use of Sarah R. Magarge, against the Mutual Life Insurance Company of New York, upon a policy of life insurance issued by the company defendant upon the life of the said Edward Magarge, deceased, for $10,000.
    Pleas, non assumpsit, payment, and set off, with leave, he. Replication, non solvit, no set off, and issue.
    The defendant company had issued another policy upon the life of the said Edward Magarge for $5000, which was paid by the company shortly after the death of Magarge.
    The policy in suit was dated April 14th 1873, No. 28,375, and stipulated for quarterly premiums of $51 each, to be paid on or before the fourteenth days of January, April, July and October. Among other conditions contained in the body of the policy was the following: “ Second, If the said premiums shall not be paid on or before the days above-mentioned for the payment thereof, at the office of the company, in the city of New York (unless otherwise expressly agreed in writing), or to agents when they produce receipts signed by the president or secretary, then, in every such case, the company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine.”
    “ it is also agreed, that in every case when this policy shall cease and determine, or become, or be null and void, all payments thereon shall be forfeited to this company.” The body of the policy was printed, written and signed, in the usual manner, on the first page of a full sheet of paper. Upon the two inside pages was a blank form, ruled in columns, intended for entries of the receipt of premiums (but which was not so used). At the head of this form, and running across the top of both inside pages, was printed in small type, occupying two lines, the following: “ Receipts heretofore by the company, of premiums after the day on which they fell due, were by the assured and the company considered acts of grace or courtesy, and as forming no precedent in regard to future payments of premiums on the policy; and all future receipts by the company considered acts of grace or courtesy, and as forming no precedent in regard to future payments of premiums on the policy, and all future receipts by the company of premiums after due are received and understood by the parties in interest as acts of courtesy of the company, and in no case to be considered a precedent or a waiver of the forfeiture of the policy according to the condition expressed therein, if any future payment of premium be omitted on the day it falls due.”
    On October 20th 1864, Edw'ard Magarge assigned the said policy to his wife, Sarah R. Magarge.
    Magarge paid the quarterly premiums on said policy from its date to October 14th 1870. The receipts given by the company contained the following:—
    “ NOTICE TO POLICY HOLDERS.”
    “ The agreement is mutual (see application and policy), that unless the premium is paid on or before the day it becomes due the policy is forfeited and void. Agents are not authorized to make, alter or discharge contracts, or waive forfeitures. Payments of premiums to agents are not valid unless receipts be given, signed by the president, secretary, cashier or actuary. When receipts are sent to agents for delivery, such agents shall countersign the same, as evidence of payment to them. All premiums are due and payable at the office in New York. For the convenience of the assured, they may be made to an agent, but only upon the production of the receipt above specified.”
    Magarge omitted to pay the quarterly premium duo January 14th 1871, on that day (Saturday). He tendered the amount on the following Monday, January 16th, but the company refused to receive it, and declared the policy cancelled and forfeited. He, thereupon, filed a bill in equity to enjoin the company from forfeiting the policy, and pending a reference of that cause to a master, Magarge died, of heart disease, February 21st 1872. After his death this suit was brought.
    The case was originally tried September 20th 1875, when the court granted a nonsuit, which the court in banc refused to take off. Upon writ of error to this court, the judgment was reversed and a procedendo awarded. (See 5 Norris 236.)
    The case was again tried, October 30th 1878, and a verdict was rendered for the plaintiff for $14,358.50. The court below granted a new trial, on the ground of error in the admission of testimony, and the case was again tried, November 25th 1879, before Finletter, J.
    The plaintiff, after giving the policy in evidence, called upon the defendant, in pursuance of a notice and a subpoena duces tecum, to produce the proofs of death which had been filed with the company soon after Mr. Magarge’s death. These proofs had been made but upon forms furnished by the company, under the oaths of the physician, a friend of the deceased, and the undertaker, and had been accepted by the company as sufficient at the time of the payment of the $5000 policy above mentioned. Defendant’s counsel replied, “ There are no proofs of death under the policy in suit.” Plaintiff thereupon offered to prove that the proofs of death theretofore filed with the defendant company were in accordance with the requirements of the policy now in suit; that these proofs of death were intended for this policy, as well as for the other, and that they are in the possession or control of defendants; the plaintiff also offered in evidence copies of said proofs of death. Objected to; objection sustained and offers overruled, “ unless it be shown that the proofs were furnished under the special policy in suit,” and “because the copy offered itself shows that it referred to anothér policy.” Exception. (Assignments of error, 1 to 6 and 17 to 19, inclusive.)
    The plaintiff called Henry E. Rees, who had been Magarge’s bookkeeper, and made the following offers of testimony, viz.: That it had been the custom of the company to send notices of the falling due of premiums, which the witness always opened and took charge of, but that he received no notice of the falling due of the premium due January 14th 1871. Objected to; objection sustained. Exception. (10th assignment of error.) That the premium due January 14th was tendered January 16th, and declined. That upon previous occasions in 1867 and in 1870, the premiums had been tendered and accepted a few days after they fell due. Objected to; objection sustained. Exception. (7th and 8th assignments.)

      Plaintiff offered to prove that it was the custom among life insurance companies doing business in Philadelphia to receive premiums within a reasonable time after they fall due, under policies similar to the one in suit, if the assured be in good health, notwithstanding the policies contain a clause of forfeiture for nonpayment on the very day. Objected to; objection sustained, unless it be shown that the offer applies to all companies doing business under the particular form of the policy in suit. The witness having answered that the policy is similar in general form and sense to other policies containing forfeiture clauses, with the exception of the two lines printed at the head of the inside pages, and that he did not know any other company having a policy exactly like the one in suit, the plaintiff's offer was overruled. (Assignments 11 to 16.)
    The plaintiff further offered to prove, by William N. Lambert, of the firm of Vanuxem, Bates & Lambert, the general agents for the defendant company in the State of Pennsylvania, “ that upon January 1st 1871, the surplus for defendant company for the year 1870 was divided among the policy-holders of the company, and that this policy now in suit was then entitled to the sum of $67.72, ■which appears by the books produced by the witness to the credit of that policy; and that the previous divisions of surplus or annual dividends due to this policy were more than the quarterly premiums due in January of each year; also to show how Magarge was in the habit of using those dividends in the payment of his premiums; also to show that $67.72 dividend appears upon the company’s books upon this policy, and has never been paid to Edward Magarge, or to his administrators, or to any one for them.”
    Objected to; objection sustained. Exception. (20th assignment of error.)
    The plaintiffs offered in evidence a book issued and published by defendant company, produced by their agent, William N. Lambert, called “ Mutual Life Rates,” for the purpose of showing, that the surplus belonging to defendant company is to be equally distributed each year among the different policies of said company, and that the same can be used in payment of premiums.
    Objected to; objection sustained. Exception. (22d assignment of error.)
    The plaintiff further offered to show, that at the time of the refusal of the premium of January 14th 1871, on January 16th, and previously thereto, Magarge was in good health; that Judge Elcock (witness) was his then counsel and in daily communication with him; and as counsel, applied to court for an injunction to restrain the company from forfeiting this policy; and that while the case was being argued before a master, Magarge died in February 1872.

      Offer overruled, unless it be shown that the condition of Magarge’s health was made known to the company.
    At the close of the plaintiff’s case, the court, on motion of the defendant, granted a nonsuit, which the'court in banc subsequently refused to take off. The plaintiff took this writ of error, assigning for error, the overruling of the plaintiff’s offers of testimony, the entry of judgment of nonsuit, and the refusal to take it off.
    The case was argued February 24th 1880, and the court ordered a re-argument, which was now had, January 4th 1881.

      John J. Ridgway (with whom was Daniel Dougherty) for the plaintiff in error.
    The principal questions raised on this writ of error, were decided in our favor by this court on the former writ of error: Magarge’s Adm’r v. Ins. Co., 5 Norris 236.
    The death of Magarge, which was the condition on which the company became liable under the policy in suit, was proved once for all, to the satisfaction of the company ; and the proofs of death, which were in the possession of the company, or the copies thereof, should have been admitted in evidence in this case: Walsh v. Marine Ins. Co., 32 N. Y. 427; Mason v. Harvey, 8 Exch. 819; Insurance Co. v. Tyler, 16 Wend. 385; Cornell v. Leroy, 9 Id. 163; Taylor v. Ins. Co., 13 Gray 434; Miller v. Ins. Co., 2 E. D. Smith 268; Bliss on Life Ins., sect. 264.
    But the action of the company, in declaring the policy forfeited on other grounds, was a waiver of the proofs of death, as a prerequisite to suit: Insurance Co. v. Taylor, 23 P. F. Smith 342; Insurance Co. v. Todd, 2 Norris 272; 6 W. N. C. 498; McMasters v. Fire Ins. Co., 25 Wend. 379; Rogers v. Ins. Co., 6 Paige 583; Lewis v. Fire Ins. Co., 52 Me. 492; Miller v. Life Ins. Co., 2 E. D. Smith 268; Vos v. Robinson, 9 Johns. 192; Savage v. Ins. Co., 4 Bosw. 1; Blake v. Fire Ins. Co., 12 Gray 265; Bumstead v. Fire Ins. Co., 2 Kern. 81; Tayloe v. Fire Ins. Co., 9 How. 390; O’Niel v. Fire Ins. Co., 3 Comst. 122; Francis v. Fire Ins. Co., 1 Dutch. 78; Schenck v. Fire Ins. Co., 4 Zab. 447; Fire Ins. Co. v. Coates, 14 Md. 285; Angell on Fire and Life Ins., sect. 244; Francis v. Fire Ins. Co., 6 Cow. (N. Y.) 404; Insurance Co. v. Stein, 5 Bush 652; Insurance Co. v. Harmer, 2 Ohio St. 452; Transportation Co. v. Fire Ins. Co., 6 Blatch. C. C. 241; Noyes v. Ins. Co., 30 Vt. 659.
    The evidence offered to show the previous course of dealings between the defendant and the insured, with reference to the payment and acceptance of premiums within a reasonable time after they fell due, should have been admitted: Helme v. Ins. Co., 11 P. F. Smith 107; Magarge’s Adm’r v. Ins. Co., 5 Norris 236.
    The memorandum printed across the inside pages, was not referred to in the body of the policy, and, therefore, was not a condition of the policy, and was no ground for the.exclusion of such evidence: Kingsley v. Ins. Co., 8 Cush. 393; Brittain v. Barnaby, 21 How. 536. Yet it is chiefly upon these two lines, that the nonsuit was entered.
    The court erred in excluding the evidence of custom by life insurance companies, doing business under policies similar to the one in suit, to receive premiums within a reasonable time after they fall due, if the assured be in good health: Helme v. Ins. Co., supra; Magarge’s Admr. v. Ins. Co., supra.

    The evidence to show that the company held dividends to the credit of the policy, in excess of the premium at the time it fell due, should have been admitted. Equity will not enforce a forfeiture under such circumstances: Hull v. Ins. Co., 39 Wis. 397; Russum v. Ins. Co., 5 Big. 243; Ohde v. Ins. Co., 5 Id. 145.

      Henry J. McGarthy and William A. Porter, for the defendant in error.
    The case as now presented, differs materially from that presented on the former writ of error. The condition printed on the second and third pages of the policy, was omitted from the copy of the policy printed in the paper book of the plaintiff' in error, in the former case. Nor was it called to the attention of the court below on the former trials. But that is no reason why it should not now have its full effect. Conditions printed on the back of the policy, though unsigned, form part of its terms: Kensington Bank v. Yerkes, 5 Norris 227; Fire Association v. Williamson, 2 Casey 196; Desilver v. Ins. Co., 2 Wright 130; Trask v. Ins. Co., 5 Casey 198; Ins. Co. v. Ruse, 8 Ga. 534; Bliss on Ins. 14, sect. 399.
    The evidence relating to custom was insufficient, and was properly excluded: Burger v. Ins. Co., 21 P. F. Smith 421; Adams v. Ins. Co., 26 Id. 411. It was not the duty of the company to appropriate dividends to the payment of premiums, without express authority from the assured. When Magarge did tender the premium, and it was refused, he made no claim that the dividend had paid the premium or that it should be so applied. The hook of “ mutual rates ” was clearly not admissible: Ruse v. Mutual Ins. Co., 23 N. Y. 516.
   Mr. Justice Paxson

delivered the opinion of the court, January 24th 1881.

This record presents some questions which were not considered, when the cause was here upon a former writ of error (see 5 Norris 236). The assignments are too numerous to be discussed in detail, without extending this opinion to an unreasonable length. I will endeavor, as briefly as is consistent with the importance of the case, to indicate the principles upon which it should be ruled.

The first question relates to the proofs of death furnished the defendant. It is necessary to a proper understanding of this matter, that the facts, as they occurred at the trial, should be stated. The defendant was a foreign corporation, having its principal'place of business in the city of New York. It had a branch office in the city of Philadelphia, and an agent there. It had issued two policies upon the life of Edward Magarge, deceased, one of them No. 73,712 for the sum of $5000, the other No. 28,375 for $10,000. The former policy was paid-soon after Mr. Magarge’s death; payment of the latter was resisted, and forms the subject of the present contention. The defence was the non-payment of the premium on the day it became due. The facts are, that a quarterly premium of $51 fell due upon January 14th 1871, which was neither paid nor tendered on that day; that on the 16th of the same month, the full amount of said premium was tendered in cash, refused by the company, and the policy declared forfeited.

Upon the trial in the court below, the plaintiff, after giving in evidence the policy in suit, called upon defendant’s counsel to produce the “ notice and proofs of death of Edward Magarge given to defendant and filed in defendant’s office.” To this call defendant’s counsel replied, “there are no proofs of death under this policy.” The plaintiff then called William N. Lambert, agent of the defendant, who admitted that a subpoena duces tecum had been served upon him, to produce the books and papers relating to this case; that he informed the person who served the subpoena, that he would produce the papers; that the proofs of death had been furnished under policy No. 73,712, which had been paid, that the proofs were filed by us (the agents), in the office of the company in New York, and were brought on here for the trial of this case; that the witness did not know where the proofs were, but supposed them to be in the hands of the counsel of the company. The plaintiff then called the defendant’s counsel to the stand, and the result of his somewhat extended examination, may be embodied in a single question and answer.

“ Question. Have you in your possession, proofs of the death of Edward Magarge, that were filed with the defendant company ?

“Answer. I have not in my actual possession, nor had I when the subpoena was served upon me within a few minutes, any proofs of death of Edward Magarge ; and I never have had in my possession any proofs of the death of Edward Magarge, which purported to relate to the policy now in suit.”

Some other questions were then asked of the counsel, a portion of which it would have been in better taste to have omitted, and then we have this inquiry: “ Where are those papers and those proofs of death you had at the last trial ?” This question was objected to, and, according to the bill of exceptions, remained unanswered. The plaintiff then called John J. Ridgway, Jr., whose testimony is so important that I give it in extenso.

“ I knew Edward Magarge. I knew of his death on the 21st of February 1872. I called at the company’s office, and informed them of Magarge’s death. They gave me three blanks to have filled up and sworn to by a friend of Magarge’s, the doctor who attended him in his last illness, and the undertaker who buried him. I either filled them up or caused them to be filled up, but they were filled up and returned in proper -form to the company, sworn to by the parties as directed.

“ Question. Did you ever obtain the original proofs of death from Judge Porter?

“ Answer. I did, and h-ad a copy made of them. I can swear that those (witness here points to the papers) are true copies, made by Mr. McAdam, who is in my office, and compared by me, of the proofs of death of Edward Magarge, furnished to defendant. There have been some papers attached.”

I quote further from the bill of exceptions.

“ Copy of proofs of death of Edward Magarge offered in evidence as identified by witness (marked Exhibit A). Objected to. Objection sustained, because the paper itself shows that it referred to another policy. Exception to plaintiff.

“ Plaintiff now offers in evidence, the identified copies containing statements of doctor, friend and undertaker, all certified under oath, being copies of the proofs of death of Edward Magarge, sworn to by doctor March 6th 1872, by the friend on March 9th 1872, and the undertaker’s statement sworn to February 29th 1872. Papers Nos. 1, 2 and 8 of Exhibit A. Offer overruled, unless it be shown they were furnished under the special policy in suit. Exception to plaintiff.”

It will be observed, the court below placed the exclusion of this evidence upon the sole ground that the proofs were not furnished under the policy in suit.

No-evidence appears to have been offered upon this point. Mr. Eidgway, who furnished the proofs, does not say under which policy they were made. There is nothing upon the face of the papers, copies of which are printed in the paper-book, to indicate under which policy the proofs were furnished, except a reference in the “friend’s statement” to the number and amount of the policy which the company paid, and an indorsement, evidently by an officer of the company, of the number (73,712) on the back of the papers.

It appears to have been assumed by the company and the court below, that it was necessary for the plaintiff to have made -separate proofs of death under the policy in suit, notwithstanding the admitted fact, that such proofs had been furnished, which the company had accepted, and under which it had paid the §5000 policy.

It is undoubtedly competent for a company to contract with the assured, that, in case they issue more than one policy on his life, separate proofs shall be’furnished under each policy in case of his death. There was no such contract here. The policy provides for the payment of the sum thereby insured, “in sixty days after due notice and proof of the death of the said Edward Magarge.” Upon the death of the assured, the company were entitled to notice and due proof thereof. The plaintiff having once made such proof, there was no object in proving it again, and the company had no right to demand second proofs. The assured was dead, not under one policy, but under both ; the fact had been communicated to the company, with the cause of death, and all the circumstances connected therewith they desired to know, and as to which it was important they should be informed. A demand that all this should be repeated, merely because two policies had been issued upon Mr. Magarge’s life, is as unreasonable as it is foreign to the contract between the parties.

.Had the different policies called for different modes of proof, there would have been more force in the demand for proofs under each policy. • Such is not the case, however, and if it were, it was too late for the company to insist upon this point. Mr. Magarge had been dead for years: the case had been tried three times before in the court below, and once here. Upon the previous trials, these same proofs of death had been produced by the company, and used without objection. If for any reason the proofs were defective, or were not in conformity with the policy in suit, it w'as the duty of the company to have so notified the plaintiff. The rule in this respect was accurately laid down by Chancellor Walworth in Ætna Fire Ins. Co. v. Tyler, 16 Wend. 385: “ Good faith on the part of the underwriters requires that, if they mean to insist upon a mere formal defect of this kind in the preliminary proofs, they should apprise the assured that they consider them defective in that particular, or put their refusal to pay upon that ground, as well as others, so as to give him an opportunity to supply the defect before it could be too late; and if they neglect to do so, their silence should be held a waiver of such defect in the preliminary proofs, so that the same shall be considered as having been duly made according to the conditions of the policy.” To the same effect are Ins. Co. v. Schreffler, 6 Wright 188; McMasters v. Ins. Co., 25 Wend. 379; 16 Id. 385; Ins. Co. v. Lawrence, 10 Peters 507; Rogers v. Ins. Co., 6 Paige 583; Lewis v. Ins. Co., 52 Me. 492; Miller v. Ins. Co., 2 E. D. Smith 268; Savage v. Ins. Co., 4 Bosw. 1; Blake v. Ins. Co., 12 Gray 265; Noyes v. Ins. Co., 30 Vt. 659; Transportation Co. v. Ins. Co., 6 Blatch. C. C. 241; Francis v. Ins. Co., 6 Cowen 404; Angell on Fire and Life Ins. sect. 244; O’Neil v. Ins. Co., 3 Comst. 122; Francis v. Ins. Co., 1 Dutch. 78; Schenck v. Ins. Co., 4 Zabriskie 447; Vos v. Robinson, 9 Johns. 192.

Aside from this, the pi'oofs referred to were not essential. The plaintiffs had proved the death of Mr. Magarge. Further, they were not bound to go. The defendant company denied all liability under the policy. They had declared it forfeited months before the death of the assured. Their position was, that as to the assured there was no policy. It was precisely as if they had denied ever having issued one. How then could they call upon the representatives of the assured, to furnish proofs of death “under the policy?” It was held, in the Franklin Fire Ins. Co. of Philadelphia v. Coates, 14 Md. 285, that “ the refusal of an insurance company to pay the amount of the loss, upon the ground that they were not upon the risk, is a waiver of the preliminary proofs required by the policy.” The same doctrine was held by the Supreme Court of Missouri, in McComas v. The Ins. Co., 56 Mo. 573, where it was ruled that, “ In a suit on a policy of life insurance, where the company in its defence denied all responsibility, and refused to pay anything, such defence amounts to a waiver of notice and proofs of death;'and where such defence is interposed to a suit on a policy, which requires the insurance to he paid within sixty days after notice and proof of loss, the same will be held due at that period after his death.” We regard this as settled law.

Another important question is, the right of the company to forfeit the policy. This is raised by the 20th-assignment, and as it underlies some of the other points involved, I will consider it out of its order.

The plaintiff offered to prove, “ that upon January 1st 1871, the surplus of defendant company for the year 1870 was divided among the policy holders of the company, and that this policy now in suit was then entitled to the sum of $67.72, which appears by the books, produced by the witness, to the credit of that policy; and that the previous divisions of surplus or annual dividends due to this policy, were more than the quarterly premiums due in January of each year; also to show, how Magarge was in the habit of using those dividends in payment of his premiums.”

As before stated, a quarterly premium fell due January 14th 1871. It was tendered on the 16th, and refused, whereupon the company declared the policy forfeited by reason of its non-payment. Had the company a right so to declare ? In considering this point, I throw out of the case all question of the right of the assured to pay within a reasonable time after the maturity of the premium, by reason of the previous course of dealing with him by the com pany.

This is a matter of exceeding importance to life insurance, in its hearing upon the rights of each of the contracting parties. The consideration of such contracts is, the payment of premiums by the assured, annually or otherwise, as may be agreed upon. Without it, the company would not have the means or the power to indemnify the family of the assured in case of his death. It is a contract that calls for the exercise of the highest good faith on both sides. The assured pays his money for indemnity in case of death. The company agrees to indemnify, in case the premiums are paid as stipulated in the policy. It will readily be seen, that time is of ■the essence of such a contract. It is entirely competent for the parties to stipulate that, in case the payments are not made on the days and times agreed upon, the policy shall be forfeited, nor has the assured, who neglects to pay, a right to complain if the terms of the policy are enforced against him. The law, however, does not favor forfeitures; it never enforces them cheerfully, and will decline to enforce them where they are against equity and good conscience. Was it conscionable for the defendant company to forfeit this policy, when it had in its hands more than enough of the assured’s money to pay the quarterly premium due on the 14th of January ? • ,

To state the proposition most favorably to the company: suppose the assured on the 14th of January had been mortally ill, and for that reason had not paid his premium, and instead of tendering it on the 16th had died upon that day. Would a chancellor have permitted a_forfeiture of the policy, if it appeared the company had more than enough of the assured’s money in its possession to have paid the premium ? What is the ground of the forfeiture? It is, that the assured, by withholding from the company the money which he agreed to pay, prevents the latter from performing its contract of indemnity with others. It is therefore just that it should not perform it with the defaulting assured. If, however, the company has in its possession money of the assured sufficient to cover the default, and which it has the right to apply thereto, it has the means to keep its covenants with others, and why not keep them with the assured? This brings us to the question, had the company the right to apply the surplus belonging to Mr. Magarge to the payment of the premium which became due on January 14th ? If it had such right, equity will compel such application to prevent the forfeiture. Upon this point we have not been furnished with much information by the paper-books, and must take the record as we find it. The evidence referred to in the 22d assignment would have given us some light upon this subject, and it was error to exclude it. That the book was issued and published by the company after the daté of the policy in suit ismot material. It was not pretended that it did not apply to all policies theretofore issued. Taking the record as it stands, and conceding the truth of the offer in the 20th assignment, it is clear the company had in its possession on the 14th of January the sum of $67.72 in cash belonging to the assured. It was urged that it could not have been applied to the payment of the premium without his consent. No sufficient reason has been advanced in support of this proposition. Suppose the company had so applied it, could the assured have recovered it back ? Could not the company have set off the unpaid premium in any suit that he could have brought for such purpose ? It is true, mutual demands do not necessarily extinguish each other, but that is not the question here. The true point is the power of the company to make the application, and the right to set off the premium against a suit for the dividend. It was urged that the application of such a rule to the affairs of a large insurance company may seriously embarrass its business. On the other hand, the forfeiture of policies for nonpayment of premiums, when the company has in its possession money sufficient to pay them, may seriously embarrass the unfortunate assured. The argument, ab ineonvenienti, is certainly as strong on the one side as the other. As a matter of fact, the consent of the assured to the appropriation may be presumed. That he would object to it and thereby forfeit his policy is a proposition too absurd to be seriously considered.

It may be urged that the amount of the dividend had not been ascertained on the 14th of January. If this be so, it does not help the company. The dividend had been declared on the first of that month, and if its precise amount had not been determined by the 14th, it was no fault of the assured. It could not have been difficult for the company, with its past experience and knowledge of the previous year’s business, to have measured the dividend with reasonable accuracy. And if doubt existed upon this point, or as to the willingness of the assured to apply the dividend to the payment of the premium, equity and a just regard to his rights would require the company to seek information as to these matters, before proceeding to the harsh measure of forfeiting the policy. The plaintiff offered to show that Mr. Magarge had used previous dividends in payment of premiums. The company had therefore reason to believe from its prior dealings with him, that he would have desired such application.

While a court of equity will sustain a forfeiture under some circumstances, it will scrutinize the transaction and require that all the rights of the assured shall be respected. It is quite possible, there may be facts which in the judgment of the officers of the defendant company justified them in declaring the policy forfeited in this case; yet we are constrained to say, that it is inequitable and against the policy of the law to permit an insurance company to forfeit a life policy for non-payment of a premium, when such company has in its possession the money of the assured to an amount covering the premium, and which it has the power to apply to its payment.

The court below excluded evidence on behalf of the plaintiff offered for the purpose of showing the previous course of dealings between the defendant and the assured, as to the payment of overdue premiums. This point was squarely decided, when the cause was here before. It was said by Justice Trunkey, “ no vestige of reason is discoverable for refusing the premium tendered the second day after it became due.” Under this ruling, the evidence referred to in the 7th, 8th, 9th and 10th assignments of error ought to have been received. The learned judge would doubtless have admitted it, had not his attention been called to two lines printed upon the policy, declaring in substance that all receipts of overdue premiums are acts of grace and courtesy on the part of the company, and shall in no case be considered a precedent or waiver of forfeiture.

This clause is peculiar, whether we regard its position on the policy, or its phraseology. It does not appear on the face of the policy, nor does the policy refer to it in any manner, as is usual where printed conditions annexed are made a part of the contract. Nor does it appear upon the back of the policy, where it would readily meet the eye, but upon the inside, being two lines of printed matter at the top of the second or inside page, over the ruled columns intended for the entry of the payment of premiums from time to time. No such entries -were ever made, and the entire page is a blank, save the two printed lines referred to, and the printed headings. The phraseology is peculiar in this, that it refers to “ receipts heretofore by the company of premiums after they fell due,” as well as all future receipts of premiums, &c. Whether this clause was upon the policy when it was issued, does not appear. The learned court below treated it as a supplemental agreement. I quote its language: “ It is evident that it was written after premiums had been received which were overdue, and before the 16th of January, 1871, when the last tender of premium was made.” Had it been written as the learned judge states, there would have been much force in this suggestion, in view of its phraseology. But the words are printed, and there was absolutely nothing in the case to show when they were placed there. Not the least remarkable feature of this matter is the fact, that no one, not even the defendant or its counsel, appears to have had any knowledge of this clause until the case was brought into this court upon a second writ of error, when for the first time it was set up in the court below as an answer to the plaintiff’s allegation, that the defendant had lulled the assured into security by the acceptance of overdue premiums from time to time.

It is settled that the conditions annexed to a policy are as much a part of the contract as. though incorporated in the instrument: 1 Hen. Black. 254; 6 Term Rep. 710; Fire Association v. Williamson, 2 Casey 196; Trask v. The State Mutual Ins. Co., 5 Id. 198; Inland Ins. Co. v. Stauffer, 9 Id. 397; Desilver v. Ins. Co., 2 Wright 130; Ins. Co. v. Gottman’s Adm’rs, 12 Id. 151.

While this line of decisions relates almost exclusively to fire policies, the reason of the rule would apply equally well to life policies. In the former, however, as is well known, it is the invariable practice for the policy to contain a reference to the conditions, and the insurance is made “ according to the tenor of the conditions hereto annexed.” While the cases cited do not disclose this fact, it is safe to assume it existed in all of them. The policy in suit contains upon its face a condition authorizing a forfeiture of the policy in case of the non-payment of the premium; and refers to no condition or stipulation outside of its four corners, excepting the declaration of the assured made in his application for the policy. It was said by Mr. Justice Sayayne in Brittan v. Barnaby, 21 How. 536: “ In the first place, as loose, indefinite, and dangerous as some of the decisions in the English and American reports are, concerning memorandums of this kind, no case can he found in either in which effect has been given to any memorandum which was not on the face or the margin of the policy.” This, however, is not authority, for it was not the point decided; hut we must regard the effect of a memorandum not purporting upon its face to he a condition upon which the insurance was effected, printed in an obscure place on the policy and in no way referred to in the policy itself, as an open question. There are reasons why it is not necessary to decido it in this case.

This memorándum can hardly he regarded as a condition of the policy. It is more in the nature of a qualification of the receipts for the premiums, which were intended to be endorsed on the policy from time to time. This was its manifest object. But no such receipts Avere endorsed; there was nothing to qualify and nothing to Avhich it could attach. In point of fact, the receipts, if any were given, were loose receipts. Did they contain any such qualification? We have no evidence upon this point. If they did not, the act would be too equivocal to hold the assured to notice that the acceptance of overdue premiums would not be drawn into precedent. Nothing could be better calculated to lull the assured into security than the giving of receipts for overdue premiums without such warning prod, even though the attention of the assured had been specially called to the memorandum in question.

If the defendant company relied upon this clause to enforce its forfeiture of the policy and prevent a recovery in this suit, the point should have been made at an earlier stage of the proceedings. Having failed to set it up until after at least two trials in the court heloAV and a hearing in this court, we must regard it as having been waived. It is no answer to this, to say that neither the defendant nor its counsel kneAY of the existence of this memorandum until the last trial in the court below. That it was placed upon the policy by the company or its authorized agents is too plain to be disputed; it cannot now be permitted to say it did not know of its own act, and good faith to the assured required that, if intended as a defence, it should have been set up at the earliest moment. To spring it upon the plaintiffs now, after all these years of litigation, would be unfair to them. To admit such alleged want of knowledge on the part of the defendant company as an excuse for this delay, would be especially inequitable in view of the fact that it is sought to charge the assured with knowledge of the memorandum from its inception. We do not think it was a sufficient ground for the rejection of the evidence referred to.

We are unable to see any error in the exclusion of the evidence referred to in the 10th assignment. The offer was not broad enough to give it any value as evidence. The mere fact that the witness received no notice of the premium falling due on January 14th amounts to nothing. Had there been an offer to show that previous notices had been sent and this one purposely omitted with the design of forfeiting the policy, it would have been clearly admissible. “ Forfeitures are odious in law, * * * and there must be no cast of management or trickery to entrap the party into a forfeiture:” Helme v. Ins. Co., 11 P. F. Smith 107.

The last question to be noticed relates to the exclusion of the evidence offered by the plaintiff to show a custom or usage among life insurance companies in Philadelphia to receive overdue premiums. (See assignments 11th to 16th inclusive; also 21st.) That such a custom may be shown was ruled in Helme v. The Ins. Co., supra, and in this case, upon the former writ of error, where it was said by Justice Trtjnkey: “Upon the verity of the testimony of Mr. Ashbrook, the jury would have been warranted in finding, that it is a custom among life insurance companies to receive premiums if tendered at any time within thirty days of the time they fall due, provided the insured is in good health, and that this custom includes policies stipulating for forfeiture in case of non-payment of premium on the day.” Mr. Ashbrook was not called at the last trial in the court below, but another witness, George E. Wagner, was called to prove the custom. Several of the questions put to this witness were objectionable, and their exclusion was not error. But we are unable to see any sufficient reason why the question referred to in the 15th assignment should have been excluded. It was as follows : “ Does the custom apply to policies containing a clause of forfeiture for non-payment of premium on the day it is due?” Of course the custom sought to be proved must be applicable to contracts of insurance such as the one in suit. But applicable in what respect ? Manifestly in the matter of forfeiture, which was the only point the custom had reference to. The question was carefully framed to meet this view, and it was error to exclude the evidence.

What has been said sufficiently covers the various assignments of error.

The foregoing may appear inconsistent with my dissent in 5 Norris 236. The case as now presented differs in many of its essential features from the one there decided, and as to others my views have been modified.

The judgment is reversed and a procedendo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    McConnell’s Appeal.
    1. Where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made hy the servant for a considerable period after such service has terminated, the presumption is either that the wages have been paid, or that the service was to be performed on the footing that no wages were to be paid. This, however, is but a presumption of fact, and may be rebutted.
    Gough v. Findon, 7 Exch. 49, and Sellen v. Norman, 4 C. & P. 80, approved and followed.
    2. The present case presenting the facts above stated and containing nothing to rebut the ordinary presumption, but much to strengthen it; Held, that the servant was not entitled to recover her wages.
    3. The Act of February 24th 1834, $ 21 (Pamph. L. 76), which makes servants’ wages for one year a preferred claim against a decedent’s estate, is not inconsistent with the above-stated presumption. The act was intended to prefer a claim when duly established, not to change the rules of evidence or alter the quantum of proof.
    4. The finding of an auditing judge upon a question of fact is entitled to as much weight as the verdict of a jury, and will be set aside only on such grounds as would justify the sotting aside of such verdict.
    January 4th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1880, No. 93.
    Appeal of Jane McConnell, administratrix of the estate of John Hamill, deceased, from a decree awarding to Eliza Fletcher certain sums claimed by her to bo due as wages from the said estate.
    On the adjudication of the account of Jane McConnell as administratrix, before Penrose, J., evidence to the following effect was adduced: John Hamill was a tavern-keeper, very intemperate in his habits and subject to frequent attacks of mania apotu. While suffering from these attacks he required careful and constant nursing. His wife, being in delicate health, was unable to nurse her husband and at the same time discharge the household duties. In the autumn of 1870, Hamill agreed with liis wife’s sister, Eliza Fletcher, that she should assist in nursing him, in doing the work of the house and in attending bar, promising to pay her $4 a week for her services. Eliza Fletcher had before this time resided near by with her brother, in a house where she received and nursed patients suffering from certain complicated and dangerous diseases, from which occupation she was able to earn from $15 to $25 a week. How far she gave up this business when she agreed to do work for Hamill did not distinctly appear. Some of the witnesses testified ¿hat she lived almost altogther in her brother-in-law’s house; others, that she still sometimes could be found at her former residence. That she did perform the duties for which Hamill had hired her clearly appeared. These she continued to perform until the summer of 1875. Mrs. Hamill then died. Two weeks after that event, Eliza Fletcher quarrelled with Hamill and left his house, returning to her brother’s, where she resumed her business of nursing. Hamill died on June 19th 1877. Eliza Fletcher then claimed certain furniture in his house as belonging to her, and got some but not all she asked for. She admitted that her wages for the first year she lived with Hamill ■ had been paid, but presented this claim for the amount for her services during the remaining four years.
    There was no evidence of any demand having been made by her upon Hamill for this amount prior to his death.
    The auditing judge found the facts substantially as above, and allowed the amount of the claim, but found that owing to the payment of legal costs and certain preferred claims other than Eliza Fletcher’s, the account showed a balance in favor of the accountant.
    Exceptions were filed by the accountant to the allowance of Eliza Fletcher’s claim, and sus[ained by the court pro forma. Eliza Fletcher then obtained leave to file exceptions nunc pro tunc to the allowance of certain credits to the accountant, the disallowance of which she claimed would result in a balance applicable to her debt. Exceptions were accordingly filed by her, and after argument sustained, the exceptions of accountant being dismissed.
    The account being recommitted to the auditing judge, he surcharged the accountant with $336.94, and ordered that from said sum one year’s wages should be paid Eliza Fletcher as a preferred claim, and a dividend pro rata with the other creditors on the rest of her claim. From this decree Jane McConnell, administratrix, took this appeal, assigning for error, inter alia, the allowance of Eliza Fletcher’s claim.

      Richard S. Hunter, for appellant.
    A claim against a decedent’s estate should be made out by testimony clear and reasonable beyond dispute; in this case the claim was not so made out. It is highly improbable that this money is owing. No witness swears that it has not been paid. Now it is a very important and significant fact that Eliza Fletcher, according to her allegation, allowed her wages to accumulate for four years; that she took no acknowledgment of indebtedness from decedent; that she made no claim for wages upon decedent during the two years that elapsed between the time she claims to have left his service and his death, and this, notwithstanding the fact, as appears from the testimony, that she quarrelled with him when she left. She waited until both Mr. and Mrs. Ilamill’s mouths were closed by death. It is not to be presumed that claimant, if entitled to wages, received none for four years.
    It has been decided that, where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made by the servant for a considerable period after such service has terminated, the inference is either that the wages have been paid, or that the service was performed on the footing that no payment was to be made: Gough v. Findon, 7 Exch. 49; Sellen et ux. v. Norman, 4 C. & P. 80.

      Richard W. Clay, for appellee.
    The facts found by the court were amply sufficient to sustain the decree. The presumption said to exist by the English cases just cited, may indeed exist in England, where the law in relation to domestic servants differs in many respects from ours, and where all class distinctions are so rigidly drawn. No decision of any court in the United States has been found in which it has been held that any presumption of payment arises from the fact that the contract was one of hiring, and it is submitted that it is not in accordance with the spirit and policy of the law of this state. The 2.1st section of the Act of 24th February 1834, which establishes the order of distribution among the creditors of a decedent, and makes servants’ wages for one year a preferred claim, is inconsistent with such a presumption: Martin’s Appeal. 9 Casey 395. Our case is very similar to McCarley’s Estate, 9 Phila. R. 318.
    Even if such a presumption did usually exist it could not do so here. The relationship of the parties, and Ilamill’s irregular habits were sufficient to do away with any presumption of prompt payment.
   Mr. Justice Paxson

delivered the opinion of the court, January 24th 1881.

The appellee claims d. in the court- below, for four years’ services as a domestic serva ,.t at four dollars per week. She admitted having been paid fr the first year, but alleged she had not been paid any portion of her wages for the last four years. She left the service of her employer, Mr. llamill, about two weeks after the death of his wife, in July 1875, and does not .appear to have made any demand upon him during his life. After his death, and nearly two years after she left his employ, this claim was presented. It further appears the appellee was a sister of Ilamill’s wife, and about the time she left had a quarrel with the decedent. Her brother, Mr. Fletcher, who was her main witness to sustain her claim, says, in his testimony: “At the time of Mrs. Hamill’s death, Eliza (the appellee) and Mr. Hamill had a quarrel — this was two weeks after she left — and never spoke to him again; he died a year after; she claimed her furniture which was there; she got some, but not all; all but two or three pieces which the arbitrator awarded to the estate.”

The auditing judge found the contract of hiring, and that the. services had been performed, upon which, the court below allowed the full amount of the appellee’s claim.

We are not disposed to disturb the finding of fact. There was considerable conflict of testimony, but a verdict for such reason would not be set aside. The report of an auditor, or the finding of an auditing judge, is entitled to equal weight. The conclusion of the learned court, however, upon the facts, is not so satisfactory.

It was held, in Gough v. Eindon, 7 Exch. 49, that “ where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made by the servant for a considerable period after such service has terminated, the inference is, either that the wages have been paid, or that the service was performed on the footing that no payment was to be made.” Again, in Sellen v. Norman, 4 C. & P. 80, it was said by Gazelee, J.: “ In the regular course, if the servant has left a considerable time, the presumption is, that all the wages have been paid.”

This is the well-settled rule in England. It was either overlooked by the court below, or considered to have no application here; probably the latter, as it w-^ d at bar that the rule, however firmly established in Engi.. ' " /as not in force in this country. No sufficient reason was shown in support of this view. Such platitudes, as “the spirit of our laws” and the “genius of our institutions” amount to nothing, for the reason, they are not applicable to the question we are considering. A presumption has been defined to be “ an inference as to the existence of one fact not certainly known from the existence of some other fact known or proved, founded on a previous experience of their connection.” The presumption referred to in the cases cited rests upon the known fact, that in England servants’ wages, as a general rule, are paid at stated periods, and it is entirely immaterial whether such periods are weekly, monthly or yearly, and upon the further fact that a servant rarely leaves the service of an employer, and remains away for months or years, without a settlement of some sort with his or her employer, or at- least a demand for payment. The same facts exist in this country, and there is, therefore, the same presumption. In either case it is a presumption which the law raises from a known state of facts, and a known course of dealing. It is, however, a presumption of fact merely, and liable to be rebutted.

In the case in hand there is nothing to rebut this presumption; on the contrary there is much to strengthen it. There is the conceded fact that the first year’s wages were paid. In view of this fact, it seems almost incredible that not a dollar of "wages should have been paid for the next four years. The payment for the first year created a course of dealing which it is only fair to presume continued thereafter. It is at least sufficient to put the appellee upon some proof to show why she received nothing during the second and subsequent years. Did she demand her wages, and was she refused ? This could hardly continue for four years, and not come to the knowledge of some one who could have been called as a witness, even if we admit the improbable supposition that the appellee would have worked for Mr. Ilamill during all those years in the face of a denial of her wages. Did she agree to make him her banker ? A most improbable thing, in view of the evidence produced by her of his neglect of business, heavy drinking and constant attacks of mania apotu. Then there was the fact of her connection by marriage with her employer; she was his sister-indaw, a fact not sufficient to overcome a contract relation, but pregnant with significance in view of her stale claim, made after her sister and brother-in-law were in the grave. Further, there was her quarrel with the latter, and a dispute about the furniture after his death, resulting in some sort of arbitration.

We are of opinion there was abundance in this case to raise such a presumption of payment, as to cast upon the appellee the duty of showing some,*’ rpore than the mere contract of hiring. It is always possible ., servant to show such contract, or what is equivalent, to prove Bervices for which a promise to pay will be implied. Such claims may be made and such proof produced years after the death of the employer. New persons take receipts for the payment of servants’ wages, and the proof thereof, in many cases, would be exceedingly difficult. This of itself would not be sufficient to defeat a just claim, but it is a good reason why a presumption, based upon sound principles and the known rules which guide human conduct, should be applied.

It was urged that the 21st section of the Act of 24th February 1834, which makes servants’ wages for one year a preferred claim against a decedent’s estate, is inconsistent with this presumption. We do not so regard it. The act was not intended to change the rules of evidence, or regulate the quantum of proof. It means that when a claim for wages is established, as required by law, it shall be a preferred debt to the extent of one year’s services. The claim of the appellee was improperly allowed.

The decree is reversed at the costs of the appellee, and it is ordered that distribution be made in accordance with this opinion.

Gordon, Trunkey and Green, JJ., dissent.


author: Mr. Justice Trunkey

text:
    Twining’s Appeal.
    l The Act of April 11th 1848 (Pamph. L. 536), conferred upon married women no rights with reference to the disposition of property settled to their sole and separate use to which they were not before entitled.
    2. Where a mai'ried woman and her husband conveyed by indenture containing no power of revocation certain property to a trustee, upon trust to pay the income thereof to the married woman for life, for her sole and separate use, and after her death, upon trust to grant and convey the property to a son of said married woman by a former husband, a court of equity will not, on the joint application of the married woman, her husband and the ultimate beneficiary, decree cancellation of the deed of trust, and order the subjects of said trust, or any part thereof, to be transferred to the ultimate beneficiary. The married woman, being under disability, will be protected from the undue influence which may have been brought to bear by her husband to destroy the trust created for her use.
    3. Whether upon the death of her husband, the married woman joining with the ultimate beneficiary could obtain such a decree, not decided.
    January 4th and 5th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1881, No. 28. In Equity.
    This was a bill in equity filed by Edward H. B. Twining against the Girard Life Insurance, Annuity and Trust Company of Philadelphia, Gordon Monges and Louisa A. Monges. The plaintiff was the son of Mrs. Louisa A. Monges by a former husband. The bill set forth that by a certain indenture dated September 18th 1879, the defendants Gordon Monges and Louis A. Monges, his wife, granted, assigned and conveyed unto the Girard Life Insurance, Annuity and Trust Company of Philadelphia, certain Securities and personal property therein particularly described, of the value of about $18,000, in trust, to pay over the net income thereof to the said Louisa A. Monges for her sole and separate use during her life, and upon her death to grant, assign and convey the principal of the said trust estate to her son, said Edward H. B. Twining, absolutely. That the property, so conveyed, 'represents a portion of the estate of Edward H. Twining, deceased, the father of the plaintiff, Edward H. B. Twining, and the former husband of the defendant, Louisa A. Monges. The said deed of trust contained no power of revocation.
    That the plaintiff being about to engage in business which required a certain amount of capital, requested his mother, the said Louisa A. Monges, to consent to a revocation of the said trust so far as to permit the payment to him by the trustee of the sum of $4000, part of the principal of said trust estate, to which request the said Louisa A. Monges and Gordon Monges consented. A demand in writing was thereupon served upon the trustee under the hands and seals of said Gordon Monges, Louisa A. Monges and Edward H. B. Twining, being all the parties who now have, or ever can have, an interest in the principal or income of said estate, requesting the payment to him of the sum of §4000, and releasing the said trustee from all claims for interest and for said amount of principal. That the trustee refused to comply with said request, being advised that it was not authorized so to do under the terms of the deed of trust. The bill prayed that the corporation trustee bo decreed to pay to the plaintiff the sum of §4000, a part of the said trust estate, and general relief.
    The answer of Gordon and Louisa A. Monges admitted the facts averred in the bill, and joined in the prayer thereof. The answer of the Girard Life Insurance, Annuity and Trust Company submitted themselves to the order of the court in the premises.
    The material clauses of the said deed of trust were as follows:
    “Now this indenture witnesseth, that the said parties of the first part, the said Gorgon Monges and Louisa Armantine, his wife, as well for and in consideration of the premises as, &c., * * by these presents do give, grant, bargain, sell, assign, transfer and set over unto the said party of the second part, their successors and assigns for ever (here follows a description of the subjects of the trust), being the entire principal or capital of the estate of Edward H. Twining, as aforesaid, placed by Edward II. B. Twining in the hands of the said Gordon Monges and his wife, Louisa Armantine, or either of them * * in trust, in the first place, to hold all and singular the estate, property and premises hereby conveyed and assigned, during the whole of the natural life of the said Louisa Armantine Monges, whether covert or sole, for her sole and separate use in the manner herein set forth, and. to hold, invest and keep invested the same and every part thereof, in the name of the said party of the second' part, either as the same may be invested at the signing of this indenture or in such other securities, in bond and mortgage or otherwise, as the said party of the second part, by and with the advice and consent of the said party of the first part shall think safe and reliable, and the net income, interest and dividends thereof, from time to time as they shall accrue, to collect, receive and pay over to the said Louisa Armantine Monges for ■ and during her natural life, upon her own proper receipt, and into her own hands, to and for her own sole and separate use and behoof, whether covert or sole, but in such way and manner that the same shall not be answerable for nor in any manner liable to the control or to the debts, contracts or engagements of any husband she, the said Louisa Armantine Monges may now or hereafter have, nor be liable to any charge, encumbrance or assignment in anticipation of ber, the said Louisa Armantine Monges, whether covert or sole, or be applied to any other object than the sole and separate use of the said Louisa Armantine Monges, * * and upon this further trust, in the second place, that upon, from and immediately after the death of the, said Louisa Armantine Monges, they, the party of the second part, will hold the said trust estate to, and for the use of, and will then give, transfer, assign, pay and set over the entire principal of the same, to Edward H. B. Twining, her son, as aforesaid, his heirs, executors, administrators and assigns for ever, free and discharged of any restriction, limitation or restaint whatever.”
    After hearing, upon bill and answers, the court dismissed the bill, Allison, P. J., delivering the following opinion:
    “ This application is chiefly supported by the cases of Culbertson’s Appeal, 26 P. F. Smith 145, and Russell’s Appeal, 25 Id. 269. The doctrine is clearly recognised in these caseh, that where a trust is still subsisting, although all its purposes may not have been accomplished, if all who are or may be interested are in existence, are sui juris, and consent, courts of equity may decree a determination of the trust, on the principle that a trust continues in equity no longer than the thing to be secured by it demands.
    “ The distinction between each of these cases and the present application is, that the parties beneficially interested, and intended to be protected by the trust, were sui juris. In such case the court holds that, unless a deliberate intent of a party to tie up his hands should clearly appear, the omission of a power of revocation, accompanied by proof of a failure of counsel to advise it, are circumstances, with others, to show that it was not done with deliberate intent. But in Russell’s Appeal, supra, it is just as clearly held, that a trust which contains no power of revocation, if not in prejudice of creditors, and created with intention and knowledge of the act, is irrevocable in law and in equity; nor is the mere omission of counsel to advise the insertion in the deed of a power of revocation of itself ground to set aside a voluntary conveyance. It was upon the recognition of this principle that Koenig’s Appeal, 7 P. F. Smith 352, was decided. The trust was for the separate use of a married woman, and the court held that it ceased on the death of the husband. In Russell’s Appeal, the master puts the decision on the ground that it was apparent that the intention was that the trust should be operative only during the life of the intended husband. This view of the case was adopted by the court on final hearing of the cause. Chief Justice Agnew says, that where the facts show that the instrument was executed without advice or reflection, and without an intention to bind the party after the reasons and motives for executing it have passed away, and the party is again sui juris, a court of equity will and ought to relieve against volunteers, claiming without consideration, or a reasonable motive for continuing the donor’s disability.
    “ Mrs. Monges, formerly Mrs. Twining, is still under the disability of coverture. She is therefore to be protected even against her own solicitation to set aside this trust in part or in whole, and it mátters not that her husband consents to the application. The reason for the creation of the trust is at this time in as full force as it was at its inception, and the principle which is recognised by courts of equity, as justifying the setting aside of a trust, does not exist in her case. To this we add, that it is apparent that the intention was to carry the trust beyond the death of her present husband, should he die before his wife. By its terms it is to continue for the remainder of her life, whether she marry again or remains sole, and only in the event of her death can the principal fund be paid over to the plaintiff.
    “ Bill dismissed, with costs.”
    The plaintiff took this appeal, assigning for error, the dismissal of the bill.

      F. Carroll Brewster (with him Francis E. Brewster and F. Carroll Brewster, Jr.), for the appellant.
    This is the case of a voluntary settlement of property in trust for the separate use of A. for life, remainder to B. absolutely. The life-estate and the remainder constituting the entire corpus, it is difficult to see why a conveyance signed by the only parties in interest would not pass the title. The trust for the sole and separate use of Mrs. Monges was to protect the property from her husband or his creditors. No part of the fund now sought to be withdrawn from the trust estate would go to him or his creditors. Nor would it be an anticipation of the payment of interest to Mrs. Monges. It is an extinguishment by her of that much of the corpus, and only anticipates its vesting in the remainderman.
    It is now settled that, “ although a trust may not have ceased by expiration of time, and although all its purposes may not have been accomplished, yet if all the parties who are or who may be interested in the trust property are in existence, and are sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of the trust and the distribution of the trust fund among those entitled thereto: Culbertson’s Appeal, 26 P. F. Smith 145; Perry on Trusts, §§ 274, 386, 920. Whatever may be the nominal duration of a trust, it continues in equity no longer than the thing sought to be secured by the trust demands. Equity will not enforce a purely voluntary deed of trust against the grantor or his representatives: Smith v. Harrington, 4 Allen 566; Bowditch v. Andrew, 8 Id. 339. The mere omission of a power of revocation will not prevent the operation of this principle. Such omission is primá facie evidence of mistake: Russell’s Appeal, 25 P. F. Smith 269; Wallaston v. Tribe, Law Rep., 9 Equity 44; Coutts v. Acworth, Law Rep., 8 Equity 558; Forshaw v. Welsby, 30 Beav. 243; Cooke v. Lamotte, 15 Id. 234. The deed gives Mrs. Monges the right to change the securities, with the assent of the trustee, and if she is willing to take her son’s bond for $4000, the trustee, being secured against loss by the signatures of all the parties in interest, cannot object.

      John J. Ridgway, Jr., for the Girard Company, trustee.
    The deed contains no power of revocation, and no mistake or fraud is alleged. The trust is a lawful one for the sole and separate use of a married woman. To grant the prayer of the bill would be, in effect, a revocation pro tanto, which, if lawful, might be repeated so as to-exhaust the whole trust estate. The deed plainly forbids what is now attempted to be done, and it cannot be legalized by the assent of the cestui que trust, who has no power except that given or reserved to her in the deed. Hot being' sui juris, she would not be bound by such consent, and it would be no answer to her demand hereafter for income for the trustee to say that it had disappeared with the principal at her request. The object of the trust was to prevent her anticipating or assigning the income, with or without the persuasion of her husband, and to ask a court of equity to overturn this prudent provision -while the object of the trust still exists, would be to ask it to sanction a breach of trust: Hill on Trustees, *421, 422; Lancaster v. Dolan, 1 Rawle 231.
    In Culbertson’s Appeal, 26 P. F. Smith 145, relied on by the appellant, the trust was not under any instrument, but was a widow’s dower interest in partition in the Orphans’ Court. The court had jurisdiction of the fund, having themselves impressed it with a quasi trust. The case is, therefore, inapplicable. Moreover, the general statement quoted in the opinion by Merccjr, J., from Perry on Trusts, § 386, was modified and restricted by Mr. Perry in the later editions of his work, by the supplementary section, 386 a, where he says, referring to a trust lawfully created for a specific purpose: “ Any conveyance, whether by operation of law, or by the act of any of the parties, which disappoints the purposes of the settlor by divesting the property or the income from the purposes named, would be a breach of trust. Therefore, it may be said that the power to create a trust for a specified purpose does, in some sort, impair the power to alienate property.” This accords with the current of all the later Pennsylvania decisions on the subject of trusts.
   Mr. Justice Trunkey

delivered the opinion of the court, January 24th 1881

A feme covert is deemed, in respect to her separate estate, a feme sole only to the extent of the power clearly given by the instrument by which the estate is settled, and has no right of disposition beyond it: Wallace v. Coston, 9 Watts 137. This principle is not set aside by the Act of 1848, relative to married women ; for the separate estate thereby created is a legal one, totally distinct from an equitable separate estate created by agreement or devise: Penna. Co. for Ins. on Lives v. Foster, 11 Casey 134. Prior to that act, a married woman could dispose of her personal estate to her husband, by gift or otherwise, and, with his consent, to a stranger; the act took from her no right which she had previously possessed in regard to- the disposal of her personal estate: Brown’s Appeal, 9 W. N. C. 329. But the act had no reference to estates settled to the separate use of married women. These were secure before, and it was not intended to take away from the wife any of that protection of her separate property against her husband which she had previously enjoyed. “ All experience proves that the highest protection of the wife against the husband is in her disability, in her want of power to yield to his solicitations, or give way to her sympathies:” Wright v. Brown, 8 Wright 224.

To grant the prayer of the plaintiff, would, necessarily, be upon a principle that the whole fund could be disposed of by agreement of the parties. That principle would enable the husband to influence the wife to destroy the trust created for her use. There is no difference in legal effect between this trust and one created by will or deed of a parent for use of a married daughter. If the beneficiary of the trust can defeat it by agreement while the reasons for its creation exist, it is worthless. The validity of trusts like this, against everybody, is too well settled to be overthrown, save by legislative power.

Although there is absence of power of revocation in the deed, the circumstances, as shown, do not warrant the cancellation of the deed. At present Mrs. Monges is incapable of acting so as to defeat the primary object of the trust.

With the single remark, that the point is not raised, whether upon the death of her present husband, she thereafter remaining sole and consenting, a decree could be made that the principal fund be paid over to the plaintiff, the decree is affirmed on the opinion of the learned president of the Common Pleas.

Decree affirmed, and appeal dismissed at the costs of the appellant.


text:
    Jones versus Caldwell.
    1. A positivo testamentary direction to an executor to sell the testator’s real estate, after the death of his widow, effects an equitable conversion thereof. And a daughter to whom the tostator, by a subsequent clause in his will, gave and bequeathed a share of his estate, takes no interest in the real estate which can be bound by a judgment obtained against her in the lifetime of the testator’s widow.
    2. A subsequent provision in the will that if the heirs shall agree to a division of the estate among themselves, the executor shall not be bound to sell, does not prevent a conversion.
    3. As this provision merely gave the parties interested in the proceeds the right to elect to take the land as such, which right the law gives them independently of the will, the provision may be struck from the will as surplus-age, without altering its legal effect.
    5. Neely v. Grantham, 8 P. F. Smith 433, remarked on and distinguished. Laird’s Appeal, 4 W. N. C. 473, followed.
    January 6th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1880, No. 330.
    Case stated, in the nature of a special verdict, filed by agreement of the parties, wherein Israel C. Caldwell was plaintiff and Thomas C. Jones defendant, setting forth the following facts:—
    Michael Andress, late of the city of Philadelphia, died June 28th 1865, seised in fee simple of, inter alia, a house and lot of ground situate on the south side of Noble street, No. 139, in the city of Philadelphia. He left to survive him his widow, Sophia Andress, five sons and three daughters, among whom was Mary B. Durrell, intermarried with Edward Durrell.
    By his last will and testament, dated February 7th 1864, duly proved July 5th 1865, he directed, inter alia, as follows:—

      “Item: After my decease, should she survive me, I give and bequeath all the income of my real estate, with all the debts due me and all the personal and mixed estate of whatsoever and wheresoever found, to my beloved wife, Sophia Andress, during her natural life or while she shall remain my widow, she paying all the taxes, water-rents, ground-rents and interest due on the mortgages on said estate or that shall become due, and all the interest due or to become due on the notes of hand held against me, and keeping the property in good repair.
    “ Item: After my own and my wife's decease, it is my will that my executors shall dispose of all my property, real, personal and mixed, without any application to Orphans’ Court, or make r turn to any court of this Commonwealth, other than where collateral inheritance tax might occur, and I hereby authorize my said executors to make legal deeds to the purchasers of any of my real estate, provided, nevertheless, that they shall publish in two daily newspapers, one month daily, showing the time and place when the same is to be disposed of, which shall bo at public auction; but my executors shall not be bound to make such advertisement or sale, if all the legal heirs or their legal representatives shall agree to a division of said estate amongst themselves, notwithstanding the above provision for a sale, but this will shall, nevertheless, be recorded in the Register of Wills’ office in the city of Philadelphia.

      “Item: After my own and my wife’s decease, I give and bequeath to my five sons, Conrad B. Andress, Michael M. Andress, Samuel C. Andress, William Andress and Isaac T. Andress, one-eighth or share and share alike of five-eighths of my said estate, and to my three daughters, Mary B. Durrell, Rebecca Wood and Harriet Johnson, or either of their heirs or assigns, the three remaining three-eighths or share and share alike of the said three-eighths.”
    Sophia Andress, the testator’s widow, died July 5th 1878.
    On September 10th 1874, Israel O. Caldwell, the plaintiff here, recovered a judgment for $229 against Mary B. Durrell, one of the daughters of the said testator, who had become and then was a widow. She died intestate, October 31st 1876. On November 26th 1879, Thomas O. Jones, administrator de bonis non cum testamentum annexe of Michael Andress, deceased, sold the testator’s real estate at public sale under the authority contained in the will. Israel C. Caldwell thereupon released the lien of his judgment from the premises sold, in consideration of an agreement by Jones, the administrator, that he would retain, out of the proceeds of sale, a sufficient sum to pay Caldwell’s judgment, with interest and costs, provided it be determined that Mary B. Durrell’s interest in the real estate of Michael Andress, her father, was such, on September 10th 1874, that Caldwell’s judgment, recovered on that day, attached thereto as a lien, and remained a lien at the time of the sale.
    If the court be of the opinion that on the above facts the plaintiff is entitled to judgment, then judgment to be entered for plaintiff for $229, with interest from September 10th 1874, and costs; but if not, then judgment to be entered for defendant; either party reserving the right to take a writ of error, &c.
    The court entered judgment for the plaintiff for $304.50; whereupon the defendant took this writ of error, assigning for error the entry of judgment for plaintiff.

      Joseph A. Abrams (with him Joseph L. Tull), for the plaintiff in error.
    The explicit direction in the will of Michael Andress that his executor “ shall” sell his real estate, after advertisement, with authority to “make legal deeds to the purchasers,” worked an equitable conversion of the testator’s real estate into personalty from the time of his death, and his heirs or devisees took nothing which could be bound by a judgment against them: Evans’s Appeal, 13 P. F. Smith 183; Brolasky ta Gally’s Executors, 1 Id. 509; Allison, Executor, v. Wilson’s Executors, 13 S. & R. 330. The subsequent provision in the' will, that the executor should not be bound to sell if “ all the legal heirs or their representatives shall agree to a division of the said estate amongst themselves,” does not prevent the conversion, and a distributee cannot, by his election to take as land, work a reconversion: Willing v. Peters, 7 Barr 287; Laird’s Appeal, 4 W. N. C. 473. But in this case the distributees did not so elect. Where a discretion whether to sell or not is vested in an executor or devisee (as in Anewalt’s Appeal, 6 Wright 414), conversion does not take place; but wherever there is a clear intention to sell, conversion follows: Swann v. Fennereau, 3 Vesey 41-50; Thornton v. Hawley, 10 Id. 130.

      Rudolph M. Shick, for defendant in error, was not present at the argument, but subsequently submitted a printed argument.
    To establish a conversion, “ the will must direct it absolutely, out and out, irrespective of all contingencies: Anewalt’s Appeal, 6 Wright 414, per Thompson, J. The direction here is subject to a contingency and not within the rule. If the heirs had' come to an agreement for a division of the realty, the executors would have been powerless to sell. It was discretionary with the heirs to take as land, or to let the land be sold and take the proceeds. The case is similar to Stoner v. Zimmerman, 9 Harris 394, in which it was held there was no conversion. The subsequent,devise to each of his children of “one-eighth, or share and share alike, of * * * my said estate,” instead of giving them a share of the proceeds, indicates that the intention of the testator was not imperatively to
   Mr. Justice Paxson

delivered the opinion of the court, January 24th 1881.

The portion of the will of Michael Andress which is the subject of the present contention is as follows: “After my own and my wife’s decease, it is my will that my executor shall dispose of all my property, real, personal and mixed, without application to the Orphans’ Court; and I hereby authorize my said executor to make legal deeds to suit purchasers of any of my real estate, provided, nevertheless, that they shall publish in two daily newspapers one month, daily, showing the time and place where the same is to be disposed of, -which shall be at public auction; but my executor shall not be bound to make such advertisement or sale if all the legal heirs or their legal representatives shall agree to a division of said estate among themselves.” The will then directs the proceeds of such sales to be divided among his eight children, share and share alike.

The single question for our consideration is whether the will works a conversion of the real estate. If it does, the judgment obtained by the defendant in error against Mary B. Durrell, one of the testator’s children, was not a lion upon the real estate, and the judgment entered by the court below upon the case stated must be reversed.

An absolute direction to sell lands after the death of the testator’s widow, and to divide the proceeds among his children, effects an equitable conversion thereof into personalty, and the interest of one of the children is not bound by a judgment against him, before a sale, as real estate: Allison v. Wilson, 13 S. & R. 330; Morrow v. Brenizer, 2 Rawle 185; Burr v. Sim, 1 Whart. 252; Allison v. Kurtz, 2 Watts 185; Gray v. Smith, 3 Id. 289; Simpson v. Kelso, 8 Id. 247; Hess v. Shorb, 7 Barr 231; Willing v. Peters, Id. 287; Silverthorn v. McKinster, 2 Jones 67; Parkinson’s Appeal, 8 Casey 455; Wilson v. Shoenberger, 10 Id. 121; Brolasky v. Gally’s Executors, 1 P. F. Smith 509; Evans’s Appeal, 13 Id. 183; McClure’s Appeal, 22 Id. 414.

In order to work a conversion, however, the direction to sell must be positive and explicit. It must not rest in the discretion of the executor, nor depend upon contingencies. A direction to sell upon a future contingency does not effect an equitable conversion until an actual sale: Nagle’s Appeal, 1 Harris 260; Bleight v. The Bank, 10 Barr 131; Stoner v. Zimmerman, 9 Harris 394; Anewalt’s Appeal, 6 Wright 414; Chew v. Nicklin, 9 Id. 84.

The direction in the will of Michael Andress to sell his estate is as explicit as language can make it. Does the subsequent provision, that, if his heirs shall agree to a division of the estate among themselves, the executor shall not be bound to sell, operate to prevent a conversion ? We are of opinion that it does not, for the reason that the provision referred to is surplusage and may be stricken from the will without altering its legal effect. It merely gave the heirs the right to elect to take the property as real estate. The law gives them this right independently of the will. It is well settled that where real estate is ordered to be sold, the parties interested in the proceeds may elect to take the land as such: Smith v. Starr, 3 Whart. 62; Rice v. Bixler, 1 W. & S. 445.

The testator must have intended a conversion even in the event of a division of the estate among the heirs by agreement. There were eight heirs, and there appears to have been but five separate properties of unequal values. Bo that as it may, to have divided them would have required either a sale between themselves or partition according to law. The latter would have necessarily involved an appraisement and sale, and hence a conversion. It was held in Laird’s Appeal, 4 W. N. C. 473, that a provision by a testator in his will, that any of his sons may take his real estate at an appraisement, does not prevent equitable conversion under an explicit direction that his real estate be sold and converted into money..

The foregoing views are not in serious conflict with Neely v. Grantham, 8 P. F. Smith 433. The facts of that case are essentially different. A testator directed that his wife should have his mansion-farm for life, and further ordered : “ It is my will that if any one or two of my children wish to hold the old mansion property, after two of them is of age, they can do so by agreeing among themselves; if they cannot agree, they can get three disinterested persons to divide and agree for them, the eldest to have the first choice, and each of my children’s share remaining in the property until they arrive at twenty-one years. If, in case none of my children purchase the old mansion, it must be sold to the best advantage for the use of my children, and not until after the decease of my wife.” An attachment in execution was issued against the son, and served on the executors as garnishees. It was held that the attachment bound the proceeds of the sale of the lands in the hands of the executors. Thompson, C. J., and Read, J., being of opinion that there was no conversion, but that the land was bound as such by the attachment; Sharswood, J., that the order to sell worked a conversion, and it was bound as personal estate ; and Strong and Agnew, JJ., dissented. It will thus be seen that while three of the judges concurred in the judgment, though for different reasons, four were of opinion there was no conversion.

It must be conceded that the distinction between Neely v. Grantham and the .later case of Laird’s Appeal, supra, is very slight. Yet there is a difference. In Laird’s Appeal the provision was that any of the testator’s sons might take the real estate at the appraisement. This required an agreement between the sons as to who should take. They could have so agreed, and the property could have been taken without the provision of the will. In either event there would have been a sale and a conversion of the estate into money, which is precisely what the testator intended. In Neely v. Grantham the provision was “that if any one or two of my children wish to hold the old mansion property, after two of them is of age, they can do so by agreeing among themselves.; if not agreeing, they can get three disinterested persons to divide and agree for them, the eldest to have the first choice, and each .of my children’s share remaining in the property.” This clause of the will could not be stricken out without essentially changing its legal effect. The right is not given to all the children to take; it is to one or two only, and the eldest to have the right of choice. It is true the children might have disponsed with all this by agreement. Nevertheless, rights are given to a portion of them to the exclusion of others. It is not, as is in the case in hand, a provision which confers upon the children just what the law gives them without the will.

Neely v. Grantham does not seem to have been called to our attention, when Laird’s Appeal was decided. It was not cited, so far as the report shows, nor is it referred to in the opinion of the court. It appears, however, to have been rightly decided, and does not need qualification. The principle we regard as sound, that where there is a positive direction in a wfill to sell real estate, and it is coupled with no qualification as to a division of the property between the heirs, other than that which the law gives, such direction to sell works an equitable conversion. I do not see that this interferes with Neely v. Grantham; if it does, that case must give way to this extent to the later case of Laird’s Appeal.

The judgment is reversed, and judgment for the defendant below upon the case stated.