text:
    Phillips’s Appeal.
    1. A testator directed his executors to' sell all his estate and divide it into eleven, parts, to be invested “ in some safe and good manner,” and held by them in trust for the use of each of his children during the life of each, “ so that the same shall not be liable for any of their debts or engagements the income of the daughters to be paid to them for their separate use, and as either of the children should die, such one’s share to descend to his or her child or children, grandchild or grandchildren, in the same manner as if such child had been possessed of the share absolutely and had died intestate; but if either should die without child or other descendant, to go as such child by will should appoint. Held, to be an active trust, as the purposes of the testator could not be fulfilled without the possession by the executors of the fund.
    2. Ashhurst’s Appeal, 27 P. F. Smith 464; Earp’s Appeal, 25 P. F. Smith 119, followed.
    January 31st 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: Of January Term 1874, No. 9. In the distribution of the estate of John Phillips, deceased.
    The question in this case arose under the will of John Phillips, late of Philadelphia, who died March 6th 1868, leaving a will dated January 3d 1868 and proved March 14th 1868; letters testamentary were issued to the three executors, John L. Phillips, one of them, being the acting executor.
    Amongst other things, testator directed as follows:—
    “ 4. I direct my executors to sell and dispose of all my estate, real and personal, excepting mortgages and ground-rents, and I hereby give them full power to do so, either at public or private sale; * * * then I direct them, my said executors, together with two disinterested persons (to be by them my said executors chosen), to divide all my estate (after having paid as hereinbefore directed) into eleven equal parts or shares, and one of such parts or shares (to be designated by my executors and said two disinterested persons) shall be invested in some good and safe manner, and held by them, my said executors and the survivor and survivors of them, and the heirs, executors and administrators of such survivor, in trust for the use and benefit of each of my ten children, namely: Henrietta Catharine, the wife of Joseph B. Phipps, Horace Phillips, &c., for and during all the term of the respective life of each of said children, and so that the same shall not be liable for any of their debts or engagements; the income of my daughters to be paid them respectively, for their respective sole and separate use; * * * and when, and as either of my said children shall die, then the share of him or her so dying 'shall descend to and vest in his or her child or children, or grandchild or children in the same way, shares and proportions as the same would have descended to and vested in them, had my said child so dying been seised and possessed of such property absolutely, and had died intestate; and if any or either of my said children should die without leaving any child or other descendant, then the share of the one so dying, without leaving any child or descendant, shall vest in such way and mariner and for such uses and purposes as he or she by his or her last will * * * shall direct and appoint; and the other and remaining one-eleventh part of my said estate shall he invested in some good and safe manner and held by them my said executors, * * * in ti’ust, for the use and benefit of my two grandchildren, Joseph Phillips and William Phillips, the children of my deceased son, Joseph W. Phillips, for and during all the term of the life of my said two grandchildren, and so that the same shall not be liable for any of their or either of their debts or engagements; and when either of my said two grandchildren shall die, then one-half part of said one-eleventh part of my estate shall descend to and vest in his child or children, or grandchild or children in the same way, shares and proportions as the same would have descended to and vested in them had he been seised and possessed of said property absolutely, and had died intestate; and if he should die without leaving any child or children, or grandchild or children, then the said property (the income whereof he is to have for life as aforesaid) shall vest in such way and manner, and for such uses and purposes, as he by his' last will * * * shall direct and appoint; and the other and remaining one-half part of said one-eleventh part of my estate (the income whereof to be paid to the survivor of my said two grandchildren for his life in manner as aforesaid) shall on the decease of such survivor vest in his children or grandchildren in the same way, shares and proportions as the same would have descended to and vested in them, had he been seised and possessed of said property absolutely, and had died intestate; and in default of any child or other descendant, then the same shall descend and vest as he by his last will and testament, executed in the presence of two or more credible witnesses, shall direcct and appoint. * * *
    “ 6. Such of my estate as I have directed to be sold shall be so sold, and my estate divided in manner as aforesaid, as soon as my said executors may think proper; but it shall he imperative on them to do so within three months after any five of my said children (or the representatives of any five of them) shall, by any writing, request them to do so; and until such division shall be made in manner as aforesaid, my executors shall manage my estate, and receive all the income thereof, and pay and divide the net income of the same to and among my said ten children and two grandchildren, in manner as I have designed they shall receive the same, as hereinbefore expressed.”
    The testator’s two grandchildren, ■ sons of his son, Joseph W. Phillips, were minors, and resided in California with their mother, who had been appointed their guardian by the Probate Court of San Francisco. On the 28th of September 1871 the executors filed an account, which was referred to Samuel C. Perkins, Esq., to audit, &c., and report distribution. On the 25th of November 1871, Charles H. Hart, Esq., was appointed by the Orphans’ Court of Philadelphia guardian of the minor children of Joseph W. Phillips, as above mentioned. One of the executors residing out of this state and not having given security, was incompent to act; another, Henrietta C. Phipps, who was also legatee of one-eleventh, died after the appointment of the auditor, leaving John S. Phillips the only executor and trustee under the will. Horace Phillips, another of the children and legatees, died August 4th 1872 intestate, without issue. The auditor corrected and restated the account, and thereby ascertained that the sum of $2224.57 of the “net income” was the proportion for the two minor grandchildren of the testator. The auditor then reported:—
    '“ * * * The one-eleventh share of net income distributed as above under the bequest for the benefit of the two grandchildren, Joseph W. and William R. Phillips, also requires special notice. The auditor is of opinion that the testamentary trustees are in fact guardians of the estate of these two minors, with all the duties and responsibilities of guardians; and Mr. Hart did not claim as guardian to receive any portion of the estate, principal or income, bequeathed for the benefit of the minors. His appointment as such guardian was a proper measure of precaution in order to meet any question as to the minors being properly represented before the auditor; and in this capacity, as well as attorney for the guardian of the domicil, he occupies a position to contend fully for their rights in every respect. This court have power to control and direct the application of the income for the benefit of the minors as may be deemed advisable, by way of allowances for maintenance and education, and investment of the surplus, if any, or to direct the whole to be paid to the foreign guardian. Nor is this power different, or any the less, during the minority of the cestui que trust, even in cases where the trust may be held as continuing beyond their minority. It is for the mother of the minors therefore, as the guardian of the domicil, to make such application to this court as she may deem necessary and be advised, for the -payment of the income to her, either in whole or in part, for their use and benefit. In accordance with the above views, until some order of this court be made, upon proper application as above suggested, Mr. Phillips, as testamentary trustee and as such guardian of the estate of the minors, is to hold the income belonging to Joseph W. and William R. Phillips for their use and benefit. * * * ”
    “ In regard to the distribution of the principal, it would seem that the sale of such of the assets as were directed to be sold, in-eluding the realty (except the ground-rents) not having been completed, and the time contemplated by the testator for the final division consequently not having arrived, there should be no division at present reported, but that John L. Phillips, as the only surviving executor qualified to act, should hold and manage the estate as heretofore, until the last piece of real estate (except the ground-rents) shall have been sold, and all the personalty held in cash or securities recognised by law, when a final account of the executorship can be filed, and the balance for distribution awarded to him as trustee, in equal eleventh parts, for the several cestuis que trust, subject to the equalization directed by the will. But Mr. Hart contended that, by the terms of the will, the legal estate in the share of the residuary bequest intended for the benefit of his wards, vested at once, and that therefore they were entitled to an award directly to themselves, ignoring the trust created or attempted to be created by the will. He further urged that by the death of Mrs. Phipps and Horace Phillips, the trust had become executed as to them, and the parties in remainder were entitled to a division of the estate, including the ground-rents, but excluding the rest of the unsold realty, at once. * * *
    “ So far as the real estate left by the testator is concerned, it vested, with the exception of the ground-rents, at his death, in his executors, for the purposes of sale, under the provisions of the Act of Assembly of 24th February 1834, sections 12 and 13, Pamph. L. 75; Bright. Purd. 282, pl. 62. A power to sell for the purposes of division or partition, is equivalent to an express devise to the executors or trustees for the purpose of sale: Brown & Sterrett’s Appeal, 3 Casey 62; Parkinson’s Appeal, 8 Id. 455. And the personal estate vests, for the purposes of administration, also, in the executors. But the entire estate, except the ground-rents, under the provisions of the will, which work a conversion, passes, as regards those beneficially interested, as personalty.
    “ It is clear, considering the language of the will, that the intention of the testator was to put his ten children and two grandchildren, named in the will, upon an exact equality, as the objects of his bounty, with the sole exception of the amount, the one-eleventh bequeathed to the latter, and which, it may fairly be presumed, would have been given to their father, if he had been living, being divided between them.” * * *
    The auditor them makes an elaborate argument with an extensive citation of authorities to establish that the trust in the executors was active and continuing; and proceeds:—

      “ The result of this view of the auditor is that the estates to the children who had children living at the death of the testator, are of the same nature as those of the two other children and two grandchildren named in the will, to wit, absolute estates, but vested in ' remainder after the expiration of the respective trusts for life. * * *
    “ The construction of the will as reported by the auditor gives full effect, it is respectfully submitted, to the intention of the testator, and prevents any possible intestacy which might perhaps happen on the failure to exercise the power of appointment, ‘in default of,’ or ‘if he or she should die without leaving any child or other descendant.’ The auditor cannot see how the death of Mrs. Phipps and Horace Phillips, although as to their shares the trust as to themselves personally is executed, can require or give any right to insist on a division at the present time, contrary to the express directions of the testator that his executors shall manage his estate and divide the income until the time fixed by him for the division of the principal shall have arrived. There is a general trust not fully executed, subsisting in the executors till the time arrives.
    “ As the time for the división of the estate has not yet arrived, therefore, Mr. John L. Phillips, as sole surviving qualified executor, is under the sixth item of tbe will to continue to ‘ manage ’ the estate ‘ and receive all the income thereof and pay and divide the net income of the same to and among ’ the said ten children and two grandchildren in manner as the testator ‘designed they shall receive the same as thereinbefore expressed;’ and consequently no distribution of the principal is at present to be awarded.” * * *
    Exceptions to the report were filed on behalf of Joseph W. and William R. Phillips, the minors:—
    That the auditor erred,
    2. In reporting that an estate is vested in the executors, whereas he should have reported that they have only the naked powers “to sell,” “to invest” and “to hold for the use and benefit,” which by Act of Assembly are enlarged for the purposes of sale only.
    3. In reporting that the time for a division of the principal of the estate had not yet arrived.
    4. In reporting that after division there will be active duties still incumbent upon the executor as trustee, in relation to the share of Joseph W. and William R. Phillips.
    5. In reporting that there is a valid and subsisting trust under the will in favor of Joseph W. and William R. Phillips.
    7. In reporting that there is an absolute estate in Joseph W. and William R. Phillips as to their respective shares, but that this estate is in remainder after the expiration of the trust for their lives, whereas he should have reported that an absolute estate vested in Joseph W. and William R. Phillips on the death of testator, free from all trusts, for their lives.
    The Orphans’ Court, Allison, P. J., overruled these exceptions and confirmed the report.

      The guardian of the minors appealed to the Supreme Court and assigned for error the overruling of the exceptions and confirming the auditor’s report.

      O. H. Hart (with whom was J. A. Burton), for appellants.
    The question is whether there is a good and valid subsisting trust for the life of the appellants. No devise or bequest was made to the executors of his estate, but merely the naked powers given them “ to sell,” “ to divide,” “ to invest,” and then “ to hold for the uso and benefit,” which by the Act of Assembly are enlarged for the purposes of sale only: Act of February 24th 1834, sec. 13; Pamph. L. 75, 1 Br. Purd. 418, pl. 71. Upon the testator’s death, the legal title vested in his heirs, subject to being divested upon the exercise of the power of sale by the executors: Chew v. Nicklin, 9 Wright 84. If a testator wishes to give a life estate only to the first takers, with remainder to their heirs or to the heirs of their body, he must devise the legal estate to trustees'by certain and express words, and attach to the trust some active duty to be performed, to prevent the merging of the legal and equitable estate. The trust for Joseph W. and William R. Phillips, is a mere simple or dry trust. The only duty enjoined upon the trustee is to hold the share in trust for the use and benefit of Joseph W. and William R. Phillips, so that the same shall not be liable for any of their debts or engagements. There is no power to invest and reinvest for them, none to collect and pay over the income to them or suffer them to receive it. They are treated as being possessed of all powers as owners in fee. The legal title lasts in trustees only so long as they have a trust to perform: Hill on Trustees 239; Hawkins on Wills 143; Ralston v. Waln, 8 Wright 279. To hold “ for the use and benefit,” even where there is a devise to trustees, being simply passive, is executed by the statute, and the cestui que trust takes the estate: Hill on Trustees 235; Jackson v. Fish, 10 Johns. R. 456; Ramsey v. Marsh, 2 McCord 252; Laurens v. Jenney, 1 Spears 856; Hammersly v. Smith, 4 Wharton 128; Moore v. Shultz, 3 Harris 98; 2 Redfield on Wills 409; Knight v. Knight, 3 Beavan 148. An evident intention to create a trust will not control the operation of the statute: Lewin on Trusts 246; Carwardine v. Carwardine, 1 Eden 36. The expression, “ So that the same shall not be liable for any of their debts or engagements,” does not make an active trust: Keyser’s Appeal, 7 P. F. Smith 236.

      J. J. Bidgway, Jr., for appellant,
    cited Earp’s Appeal, 25 P. F. Smith 119; Deibert’s Appeal, 28 Id. 296.
    February 7th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

The trust here under the will of John Phillips was of the entire estate, after the sales of real and personal estate ordered by the testator to be made by his executors. It was an active trust, because the trust fund was to be invested by the executors in a good and safe manner* and to be held by them in trust for the beneficiaries, for their respective lives, so that the same should not be liable for their debts or engagements; the income was to be paid to the daughters personally during coverture ; and when any one of the beneficiaries should die, the share of that one was to vest in his child or children in equal shares. These characteristics of the trust evidence an active trust; for the purposes of the testator could not be fulfilled without the possession and control of the executors over the invested fund. Earp’s. Appeal, 25 P. F. Smith 119, and Ashhurst’s Appeal, 27 Id. 464, may be referred to generally in support of this trust.

Decree affirmed with costs, and appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Merour

license: Public Domain

text:
    Martien versus Manheim.
    Plaintiff sued defendant and three others, “ partners trading as the Coaquannock, &c., Company, and also as Bevan <fc Wallace,” for goods, &a.; defendant alone was served; he made an affidavit of defence that he was not a member of Bevan & Wallace who “purchased the goods;” that he was a member of the other firm who never authorized the purchase, and that plaintiff had charged Bevan & Wallace with the goods, and that firm was indebted to the other. Held, a sufficient defence.
    February 1st 1876.
    Before Agnew, C. J., Sharswood, Mercur Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No. 262J.
    This was an action of assumpsit, brought November 12th 1878, by David Manheim against “ William T. Martien, David R. Smith, Washington J. Bevan and John T. Wallace, co-partners, trading as the Coaquannoek Smelting and Mining Company, and also as Bevan & Wallace.”
    The action was brought to recover on a book account, a copy of which was filed, also on a bill of exchange drawn by “ Bevan & Wallace” on W. T. Martien, in favor of the plaintiff, at fifteen days sight, and protested for non-acceptance and non-payment; also on a very large number of orders of small amount drawn by “ Bevan & Wallace,” on the plaintiff, to be charged “ to our account,” and orders on Bevan & Wallace and accepted by them in favor of plaintiff. The writ was served on Martien and returned “Nihil” as to the other defendants.
    Martien filed an affidavit of defence as follows:—
    “ That he has a legal defence to the whole claim sued on, of the nature following. That he never was, and is not now, a member of the firm of Bevan & Wallace, which firm purchased the goods sued on in the copy filed. That he is a member of the firm trading as the Coaquannock Mining and Smelting Company, but said firm never authorized the purchase of the goods sued for. And deponent believes that said plaintiffs have charged the firm, of Bevan & Wallace with said goods, and that said firm is indebted to the firm of the Coaquannock Mining and Smelting Company. All of which deponent will prove in the trial of the case.”
    The court held the affidavit insufficient, and entered judgment for the plaintiff; the damages were assessed at $2022.
    This was assigned for error on the removal of the record to the Supreme Court by thé defendant.

      D. W. Sellers, for plaintiff in error,
    cited Thompson v. Clark, 6 P. F. Smith 33; Youngman v. Walter, 23 Id. 134.

      J. W. Hunsicker, for defendant in error.
    May 8th 1876.
   Mr. Justice Merour

delivered the opinion of the court,

This suit was brought against four persons as co-partners, “ trading as the Coaquannock Smelting and Mining Company, and also as Bevan & Wallace.”

Thus it was averred that the two firms were composed of four persons, and that there was a joint liability of the firms and of all their members.

The claim filed was on original book entries (said to have been charged to the Mining and Smelting Company), and on a bill of exchange and numerous orders drawn by Bevan & Wallace.

In the affidavit put in by Martien, and held insufficient by the court .below, he swears he has a legal defence to the whole claim, the particulars of which defence he gives substantially as follows : That he never was and is not now a member of the firm of Bevan & Wallace, which firm purchased the goods sued for; that he is a member of the firm trading as the Mining and Smelting Company, but that firm never authorized the purchase of the goods.

Now we understand this to affirm that the goods were purchased by the firm of Bevan & Wallace, of which Martien was never a member. If he was not one of the firm, why is he liable for one of its contracts ? Admitting his membership of the other firm, he denies its liability, inasmuch as it never authorized the purchase of the goods. In other words, he affirms that he is a member of the firm that did not purchase the goods, and not a member of the one that did purchase.

The affidavit further avers, as matter of belief, that the defendant in error had charged the goods to the firm of Bevan & Wallace, but to negative any presumption that the Mining and Smelting Company was to pay for them, he avers that Bevan & Wallace are indebted to said firm. Martien affirms he will prove all'of the facts averred on the trial of the case.

The plaintiff below claimed against two firms. In seeking to answer for each the affidavit has somewhat blended the defence. We think, however, it sufficiently avers grounds why there should not be a recovery of the claim against both firms,, and against all of the individuals composing them. The learned judge therefore erred in entering judgment for want of a sufficient affidavit of defence.

Judgment reversed and a procedendo warded.


author: Per Curiam.

text:
    De Haven et al. versus Williams et al., Executors of Williams.
    1. Oo-executors deposited money of the testator with bankers to their joint account as executors; the bankers failed and entered into an agreement with their creditors by which all their property was passed to a trustee for the creditors, and upon all the creditors signing, the bankers were to be released from the debts owing by them. All the creditors signed; one of the executors signing for the estate. Held, that this did not release the claim of the estate against the bankers. Per Hare, P. J., adopted by the Supreme Court.

    2. In general the acts of one co-executor bind all, each having full power over the assets. Id.

    3. Executors are distinguishable from trustees, who, in equity, fown one collective trustee and must execute their office in their joint capacity. Id.

    4. One of several co-executors is not answerable for the acts or defaults of his companions unless he be negligent or had notice of some fact making it his duty to interfere. Id.

    5. Where executors join in administering the assets, each is responsible for the safety of the fund and is not excused from its loss by the misconduct of his fellow. Id.

    6. The place of safe-keeping of the fund must be one where both executors can exercise control or supervision. Id.

    7. If executors open a joint account with a banker all must unite in a receipt or check to discharge him; one cannot release him. Id.

    February 1st 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: To January Term 1874, No. 256.
    This was an action of assumpsit, brought November 1st 1873, by George C. Williams and Daniel Williams, executors, &c., of Anthony Williams, deceased, against Hugh De Haven and Alexander H. De Haven, trading as De Haven & Brother.
    The claim of plaintiffs, as filed, was a deposit made by them with the defendants, who were bankers; the affidavit of claim was as follows: — ■

      “ That the plaintiffs in this suit, as executors of the last will and testament of Anthony Williams, deceased, lent to the defendants in this suit, at four per cent, interest, on March 30th 1872, $12,608.45; on April 6th 1872, $435; on April 10th 1873, $5630.90; and on April 15th 1873, $3716.01, to he repaid by the' said defendants to the said plaintiffs, with interest, when demanded; that on October 6th 1873, there remained unpaid of said loans $10,217.52; that the defendants stopped payment in September 1873, and plaintiffs in this suit claim to recover the same, with interest, from October 6th 1873.”
    The affidavit of defence was:—
    “ That a sum of money, as will appear from the copy filed, was deposited with the said defendants by George O. Williams and Daniel Williams, executors of Anthony Williams, deceased; that after the suspension of defendants, in September last, they entered into a composition with their creditors, which was signed by George C. Williams, one of said executors for the said estate, before the bringing of the suit in this case, by the terms of which agreement all the property of said defendants was conveyed to John M. Maris, as trustee for the executors of said defendants. It was further provided that, upon the said agreement being signed by a committee, consisting of Edwin M. Lewis, Samuel It. Parke and William S. Kirk, the agreement shall go into effect and operation.
    “ It was further provided by the twelfth clause of said, agreement, as follows:—

      “ ‘ When and as soon as this agreement is signed by the parties of the first part and second part, and the approval thereof is given to it by the committee above mentioned, the said parties of the third part do hereby agree with the other parties hereto, and wdth one another, that the agreement shall then take effect and operate; and immediately thereupon the parties of the first part, individually and trading as De Haven & Brother, shall be fully and finally released, acquitted and discharged from the several sums due the creditors whose names are subscribed to this agreement.’
    “ Deponent says, and expects to prove, that the said agreement has been signed by the parties of the first and second parts, and that the said committee have approved the same, and that it has gone into full effect and operation, and that the said'George G. Williams, on behalf of said estate of Anthony Williams, has duly signed said agreement; and he avers that said defendants are thereby released and discharged from the debt upon which suit has been brought in this case.”
    On a rule for judgment, for want of a sufficient affidavit of defence, the court made the rule absolute, Hare, P. J., delivering the following opinion:—

      “ The question presented in this case is, so far as I am aware, one of the first impression.It is, whether one co-executor can, without the knowledge and assent of the other, release a demand arising from a deposit made in the names of both, and agree to look solely to the fund in the hands of the assignee, to whom the debtor has transferred his property for the benefit of his creditors.
    “ The inclination of the court, in the first instance, was in favor of the validity of the defence, but an attentive examination of the authorities has led to an opposite result. It is well settled, in general, that the acts of one co-executor bind the others, by reason of the confidence reposed in them individually, in consequence of which each has full power over the assets: Beltzhoover v. Darragh, 16 S. & R. 327, 329. This is an exception to the rule that when a trust or authority is delegated for mere private purposes, the concurrence of all who, are intrusted with the power is requisite to its due execution: Sinclair v. Jackson, 8 Cowen 533, 583; and distinguishes executors from trustees, who are regarded by equity as forming one collective trustee, and must, therefore, execute the duties of the office in their joint capacity: Vandever’s Appeal, 8 W. & S. 405, 409. Hence, a payment to one executor, or a release from him, extinguishes the debt, although he misapplies the money and no part of it comes to the use of the estate: Herbert v. Pigott, 2 C. & M. 384. Eor a like reason one may, where the circumstances require it, take part and release the residue, or accept goods or securities in satisfaction: Smith v. Everett, 27 Beavan 446; Gilman v. Healy, 55 Maine 120; and it will make no difference if the case be free from fraud, that the compromise is effected without the knowledge of the co-executor, or that it is against his wishes: Murray v. Blatchford, 1 Wend. 583; Herbert v. Pigott, 2 C. & M. 384. It results from this principle that one of several co-executors is not answerable for the acts or defaults of his companions, unless he was negligent or had notice of some fact or circumstance rendering it a duty to interfere: Townly v. Sherborne, 1 Bridgman 39.
    “It is at the same time equally well established that executors may join in the administration of the assets; and such is often the better course as affording an additional guaranty to the creditors and legatees. Under these circumstances each is responsible for the safe-keeping of the fund, and cannot allege the neglect or misconduct of another, as an excuse for a loss which would not have occurred if he had been diligent: Mendes v. Guedalla, 2 J. & H. 259. Ordinarily, an executor is not liable for nonfeasance; hut if he enters on the execution of any part of the trust he cannot stop short, and must do all that is requisite to conduct the business to a successful termination. An executor who unites in the collection of a debt cannot get rid of his responsibility by leaving the proceeds in the custody of his associate, and should, on the contrary, take such measures as will prevent the fund from being used without his knowledge. The place of safe-keeping must consequently be one where both can exercise a control or supervision. The authorities accordingly agree that money which has been received by a co-executor should be deposited to the joint account; and if this precaution is not observed,, and a loss ensues through the fraud of him who is intrusted with the fund, a chancellor will visit the consequences on both. See Clough v. Bond, 3 Mylne & Craig 490; Langford v. Gascoyne, 11 Vesey 333. Under these circumstances they are still executors, but executors charged with a fiduciary obligation, which renders them virtually trustees as it regards the assets which they have received and hold in common.
    “ The existence of such an obligation implies the power to fulfil it. Lex neminem eogit ad vana sen impossibilia. It were futile to open a joint account, if one of the depositors could withdraw the money. All must, therefore, unite in the receipt or check, in order to discharge the banker; and it follows that he cannot rely on a compromise or release by one as a defence; This is not so much an exception to the rule, that a payment to a co-executor discharges the debt, as a return to the general rule, to which that is an exception. The right of each executor to act without the concurrence of the rest seems to have been the growth of circumstances. A testator might have assets in different counties, and lying as far apart as Canterbury and York. It might be difficult or impracticable to find any one who was able and willing to assume the whole responsibility, and he might appoint a representative in either province, in the expectation that each would collect what lay nearest to his own door. So one executor may be chosen for his knowledge of accounts, and another for his skill and sagacity in the adjustment of outstanding and disputed claims. Under these circumstances, it would be useless and injurious to require that all should join in acts that can be better performed by one. The privilege is not confined to executors, but extends ■ measurably to trustees, who, as Lord Keeper Coventry observed, in Townly v. Sherborne, may permit one of their number to receive all or the most part of the profits without a breach of trust, ‘ it falling out many times that some of the trustees live far from the lands, and are put in the trust out of other respects than to be troubled with the receipt of the profits.’ In this case, as in that of executors, the right to receive necessarily implies the power to give an acquittance.
    “ It results from what has been said that the right of executors to sever in the execution of the trust is a concession to expediency, which should not be made when the case is one for care and judgment, and it is possible for all to unite without inconvenience. It does not, therefore, exist, where a fund arising from the collection or sale of the assets comes to the hands of two or more executors or administrators, or has been deposited to their joint account. Under these circumstances, there is nothing to exclude the principle that persons acting in á fiduciary capacity must concur in every measure affecting the interests which they represent. See Beltzhoover v. Darragh, 16 S. & R. 329, 339; Mendes v. Guedalla.”
    Judgment was accordingly entered for the plaintiff, and the damages assessed at $>10,377.59.
    This was assigned for error’, on the removal of the record to the Supreme Court by the defendants by writ of error.

      PI. Cr. Platt and S. JDiclcson, for plaintiffs in error.
    Joint executors are possessed of the estate each as of the entirety, and consequently the act of each is the act of all: Bac. Abr. “ Exrs. and Admrs.,” D., 1 Godolph. 134; Williams on Executors 245, 946; Toller 37; Smith v. Everett, 27 Beavan 447. One executor can compromise any claim which the estate may hold against any one, even though the other dissent: Murray v. Blatchford, 1 Wend. 583; Herbert v. Pigott, 2 Cr. & M. 384.

      J. W. Hunsieker, for defendants in error.
    If co-executors are trustees all must unite in executing the trust: Sinclair v. Jackson, 8 Cowen 543; Vandever’s Appeal, 8 W. & S. 405. Co-executors after the collection of the assets of the testator by them jointly and held in their joint names are trustees, and all must unite in executing the trust: Beltzhoover v. Darragh, 16 S. & R. 329; Turner v. Hardey, 9 M. & W. 770; Smith v. Whiting, 9 Mass. 334; Hertell v. Bogart, 9 Paige 52; Ellwell v. Quash, 1 Strange 20; James v. Huckley, 16 Johns. 277; Hall v. Boyd, 6 Barr 267.
    February 7th 1876,
   'Judgment was entered in the Supreme Court,

Per Curiam.

The well-considered opinion of Judge Hare sufficiently vindicates his ruling. For the reasons given by him the judgment is affirmed.


author: Mr. Justice Sharswood

text:
    Wistar’s Appeal.
    1. Settlements of family disputes are favorably regarded in law and equity, and are supported as beneficial in themselves, and as conducing to peace and harmony where it should most especially exist.
    2. A bill for specific performance of such agreement is an appeal to the conscience of the chancellor, who exercises sound discretion under all the circumstances; he will not interfere if the bargain be hard or unconscionable, the terms unequal or the plaintiif taking undue advantage from the strict legal construction of the words.
    3. Unless it be perfectly clear that the minds of the parties have been in accord on all material parts of the agreement, a chancellor will not interfere, but leave the parties to their legal remedies.

      4. In the compromise of family disputes, the agreement should he comÍilete in itself, not a mere aim looking to future adjustment of details, and eaving it so that it may he a source of future litigation.
    5. The agreement in this case not enforced as a family settlement.
    February 2d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Philadelphia: In Equity: Of January Term 1874, No. 276.
    On the 26th of October 1872, a bill was filed by Sarah W. Gillilan, Rachel L. Harvey and Fanny W. Scott, with their respective husbands, against Richard Wistar and William L. Wistar. The bill set out:—
    1. The plaintiffs and defendants were the only children of Richard Wistar, deceased, and nephews and nieces of Sarah Wistar, who was their father’s sister.
    2. Sarah Wistar died September 21st 1866, unmarried, and, as plaintiffs alleged, intestate, leaving neither father, mother, sisters nor brothers, but leaving the plaintiffs and defendants, her only nephews and nieces, and owning a large real and personal estate.
    3, 4. The defendants propounded a paper-writing as her will; it was admitted to probate by the register, October 3d 1876; an appeal was taken, and a feigned issue was awarded to try in the Common Pleas whether the paper was her will; this issue was pending.
    5. Fourteen actions of ejectment had been brought in the Supreme Court to recover a number of pieces of real estate in Philadelphia, late the property of the decedent; these actions were pending.
    6. After numerous efforts to settle this family dispute, an agreement was made by which the plaintiffs, “ for the sake of peace, agreed to take, and the defendants to give, in full settlement and satisfaction of all interest and claim on their deceased aunt’s estate, in addition to the devises and bequests of the will, $40,000 in down-town lots, to be appraised ” by one person to be selected by the plaintiffs and one by the defendants; the plaintiffs selected William Loughlin, who accepted the appointment; the defendants selected Edward Bedlock,- who declined to act; the defendants had since refused to appoint another appraiser, or pay the $40,000, or to be bound by the agreement. The agreement was by letters of the counsel of the respective parties, having full power in the premises; these were six letters, copies of which were annexed to the bill, and hereafter stated as Nos. 6, 7, 8, 9, 10, 11.
    7, 8. The “ down-town lots ” were unimproved lots in Philadelphia, belonging to the estate of Sarah Wistar or the defendants; the $40,000 was to be paid to the plaintiffs in'addition to what was given them by the will; in default of completing the part of the agreement, as to the lots, the plaintiffs averred that they were entitled to $40,000 in cash.
    9. Four of the actions of ejectment on the trial list had been continued in consequence of the agreement.
    10, 11. The agreement was entered into “ for the sake of peace,” and the settlement of a family dispute; and the plaintiffs, on the payment of the $40,000, were ready to release all interest in the estate of Sarah Wistar, except their devises and legacies.
    12. The defendants refused to perform their agreement, and insisted on trying the issue on the will in the Common Pleas.
    The prayers were:—
    That the rights of the parties might be ascertained and declared; that the defendants be decreed to appoint a referee in conjunction with the plaintiffs’ referee, to appraise the lots, or in default, to pay the $40,000 ; that when the lots had been appraised the defendants convey them to the plaintiffs; that defendants continue the issue on the will until this case be disposed of, and for general relief.
    The following are letters referred to in the bill, with others, in evidence in the case:—
    No. 1.
    3d October 1870.
    My Dear Sir: — I sent up to your office to-day, between 11 and 12 o’clock, but you were not in. Could you meet Mr. Morris and myself at one o’clock p. M., on Thursday, the 6th, at my office, to talk over the matter we spoke of to-day ? Yours truly, ”
    Edward Waln, Esq. ” G. W. Biddle.
    No. 2.
    December 17 th 1870.
    Gentlemen: — I have succeeded in persuading the Messrs. Wis-tar to entertain the suggestion of $67,500 as a basis of compromise of the disputed estate of the late Miss Wistar. The details, which a glance shows to be complicated, we will have to arrange by conference and negotiation. I will thank you to apprise me, not later than Monday next, of your agreement that all legal proceedings be suspended during the negotiation, because Tuesday next will be the latest period for preparing the feigned issue for trial. I am, very truly,
    E. Waln.
    To P. P. Morris and Geo, W. Biddle, Esqs.
    No. 3.
    December 19 th 1870.
    E. Waln, Esq.
    Dear Sir: — In reply to yours of the 17th instant, naming $67,500 as a basis of compromise in this matter, details to he arranged by conference and negotiation, we accept the proposition, and we agree to your suggestion that all legal proceedings be suspended during the negotiation, which we trust will be entered upon at once, and brought to a conclusion at as early a day as practicable. Yours very truly,
    P. P. Morris,
    Geo. TV. Biddle.
    No. 4.
    March 4th 1871.
    Gentlemen : — I am authorized to close, by way of compromise, the unfortunate litigation in this estate on the following terms :—
    Eirst. Messrs. It. & W. L. Wistar to renounce the office of trustees ; the cestui que trusts, according to law, to have new ones appointed under the will.
    Second. Sixty-seven thousand dollars to be given, in which are included the special devises and bequests to the ladies.
    Third. The difference between the amount of aforesaid devises and bequests and sixty-seven thousand dollars to be taken by them in down-town real estate, which, if not enough by valuation, as agreed on in Article 4, the Messrs. Wistar to make up such deficiency in other property or in cash, at their option.
    Fourth. I concede, which is to your benefit, that in estimating the property included in Article 8, the assessment of 1870 shall be the binding basis.
    Fifth. All taxes, including and in addition to the succession and collateral inheritance taxes on the devises and bequests to the ladies in trust, and also on the properties or cash, to make up the difference to sixty-seven thousand dollars, shall be-deducted from the amount before settlement.
    Sixth. The feigned issue to be withdrawn, the ejectments to be non prossed, and each party to pay their own costs.
    I am, very truly, &c.,
    Ed. Waln, Attorney for R. Wistar and W. L. Wistar.
    To P. P. Morris, Geo. W. Biddle, Esqrs.
    No. 5.
    No. 721 Walnut street, April 5th 1871.
    Gentlemen: — I regret to be obliged to inform you that your propositions of settlement in Sarah Wistar’s estate are declined, and all the inducements I offered to you are withdrawn.
    I am, very truly, &c.,
    E. Waln, for R. and W. L. Wistar.
    To P. P. Morris, G. W. Biddle, Esqrs.
    No. 6.
    December 22d 1871.
    Gentlemen : — I make a final proposal, so that, if rejected, we may try the feigned and other issues. The Messrs. Wistar will pay in full settlement and satisfaction of all interest and claim of the ladies on their deceased aunt’s estate, $40,000, in downtown lots, to be appraised by two persons, one selected by the ladies and one by the gentlemen, which two may select a third in case of disagreement. * * *
    Ed. Walk, for R. & W. L. Wistar.
    To P. P. Morris, Esq., Geo. W. Biddle, Esq.
    No. 7.
    December 26th 1871.
    E. Waln, Esq.
    Dear Sir : — Your note of 22d inst., making, as you say, a final proposal in this matter, is susceptible of more than one interpretation, If it means to offer $40,000 in down-town lots, the ladies retaining the devises and bequests contained in their aunt’s will, we accept it for the sake of peace. If it means that they are to take $40,000 in down-town lots and relinquish the legacies as well as the contestation, we reject it unhesitatingly. If we do not agree we shall expect to try the cases on the list next week.
    We are very respectfully yours,
    G. W. Biddle,
    P. P. Morris.
    No. 8.
    January 1st 1872.
    My Dear Gentlemen : — I have had my witnesses notified to attend to-morrow in Scott v. Wistar, but on calling to-day I find Mr. R. Wistar too ill to attend or to undergo the excitement of a trial. * * * Under these circumstances, I have obtained authority, which I do, to accept your offer as conveyed in your last joint note, “ for the sake of peace,” viz.: the legacies and $40,000 to be settled for or agreed on. * * *
    Yery truly your friend and obedient servant,
    Edward Waln, for R. & W. L. Wistar.
    To P. P. Morris Esq., Geo. W. Biddle, Esq.
    No. 9.
    Philadelphia, January 1st 1872.
    Dear Sir: — We are just in receipt of your note of this date agreeing to the terms of compromise as expressed by us in our letter of 26th December 1871, for which accept our thanks. This will relieve the parties and witnesses from any attendance in court to-morrow. Will you kindly give us the name of your appraiser at your early convenience? Yery truly yours,
    Geo. W. Biddle,
    To Edward Waln, Esq. P. P. Morris.
    No. 10.
    January 2d 1872.
    Gentlemen : — In compliance with your request, I am directed to name Mr. Edward Bedlock, real estate conveyancer, as the appraiser exp. R. and W. L. Wistar. I am very truly yours,
    E. Waln.
    To P. P. Morris, Esq., Gr. W. Biddle, Esq.
    No. 11.
    January 3d 1872.
    E. Waln, Esq.
    Dear Sir : — Your favor of yesterday, naming Mr. Edward Bed-lock as the appraiser of the part of Messrs. R. and W. L. Wistar, is received. On the part of the ladies, we name Mr. William Loughlin, one of the Board of Revision of Taxes.
    Yours truly,
    . P. P. Morris,
    G-. W. Biddle.
    No. 12.
    Philadelphia, February 3d 1872.
    Dear Sir: — We have not heard from you since last Saturday when we named our proposition. You were to let us hear from you at the beginning of the week. Time is rolling by and we do not advance. Pray oblige us by a very early answer. We will be in the Nisi Prius court to-morrow. Yours truly,
    Gr. W. Biddle.
    Edward Waln, Esq. P. P. Morris.
    The defendants admitted the first five paragraphs of the bill; they averred that to avoid further family scandal growing out of the litigation, negotiations for a settlement were entered into; they set out many difficulties which prevented bringing the negotiation to a close; one of which was the filing of their account by the defendants of income collected by them on the devises and bequests to the plaintiffs, who desired to receive a “round sum;” this point of filing the accounts was waived by the defendants and the negotiation was resumed; the plaintiffs, after demanding $60,000, fell to $40,000 at this point, and to include in it the accretions so as to avoid the delay of auditing, &c., the letter of January 1st 1872, was written and the words “to be settled for as agreed on,” had reference to what had been insisted on by plaintiffs, the round sum should include the accretions and that it should be received as payment in full. As soon as defendants heard that plaintiffs put a different construction on the correspondence and before anything had occurred to change their rights or prejudice them, they wrote to the plaintiffs, on the 17th of January 1872, that it was not intended that the words “ devises and bequests ” in the letters, should carry the rents and interest.
    The plaintiffs thereupon abandoned the compromise and proceeded to make preparations for the trial of the ejectments.

      There were other matters set out in the answer not important, in view of the opinion of the Supreme Court, to state.
    Miss Wistar, by her will, besides the gift of a few legacies to friends and servants and some chattels to her nephews and nieces, gave each of her nephews a large amount of ground-rents and other real estate, each part of these devises being specifically designated; also certain securities, &c.
    She gave to her nephews and two others a number of ground-rents, which she described particularly, and some bank stock, to hold in trust for her niece, Sarah W.. Hopkinson, afterwards Sarah W. Gillilan, for her separate use during life, and at her death to be divided as was directed in the will.
    She gave to the same persons other ground-rents, also described specifically, and bank stock, &c., to hold in trust for her niece, Rachel L. Wistar, afterwards Harvey, in the same way as in the former trust.
    She gave to the same persons other ground-rents similarly described and bank stock, &c., to hold in trust in the same way for her niece Frances A. Scott.
    She gave the residue of her estate to her two nephews and appointed them the executors:
    According to the appraisement by the collateral appraiser, the value of the devises and bequests was as follows:—
    Sarah Gillilan,.....$7,756.57
    Rachel L. Harvey, . . . . 7,791.86
    Frances A. Scott, ..... 6,788.03
    William L. Wistar, .... 86,357.88
    Richard Wistar, ..... 107,202.33
    A replication was filed, and Edward Law, Esq., appointed examiner and master.
    The master reported:— * * *
    “ Pending the trial of the feigned issue, and actions of ejectment, several endeavors were made to compromise this family dispute, the first of which, that took any definite form, naming $67,500 as a basis of settlement, the details to be arranged afterwards by conference and negotiation. The correspondence in regard to this arrangement was conducted by the counsel for either side respectively, and is contained at length in letters of October 3d 1870, and January 2d, and February 3d, 1871, printed in the answer; and December 17th and 19th, and March 4th and-April 5th 1871.” Owing to some disagreement, in regard to what it does not definitely and clearly appear, Mr. Wain, counsel for the defendants, in his letter of April 5th 1871, abruptly and peremptorily broke off all negotiations and declared them at an end.”
    He reported also that the letters of December 22d 1871 (No. 6), December 26th 1871 (No.' 7), January 1st 1872 (No. 8 & 9), contained the agreement which the plaintiffs relied on to compel specific performance.
    Mr. Loughlin was appointed appraiser by the plaintiffs and Mr. ' Bedlock by the defendants.
    Bedlock declined, because the correspondence had so much ambiguity about it, and he had been on amicable terms with all the parties, and because Mr. Loughlin, from his official position, must have formed his opinion. The counsel of the plaintiffs requested Mr,. Wain, the counsel of defendants, to select another person, which was not done. Mr. Wain deprecated a legal construction, that “ devises and bequests,” carried rents and interest, saying such was not the meaning which in an amicable compromise like this, those words should bear; the other counsel insisted upon adhering to the legal interpretation of the agreement. Some further negotiation looking to settlement was had, but no settlement was made.
    The master proceeded:—
    “It therefore becomes proper to examine the nature and effect of the agreement upon which the complainants rely in their bill to enforce specific performance.
    “ That it is an agreement for the purpose of settling a family dispute has been fully proved; that it is moreover an agreement in writing whose terms are clear, certain, and final, without allusion to any prior negotiation or attempted settlement, and without reference to further conference or adjustment, save the appraisement of the down-town lots, ‘ as agreed upon,’ a simple inspection of the letters which constitute it, will establish beyond question. By virtue of it, the complainants agree to abandon the trial of the feigned issue and suits in ejectment, and in consideration of their relinquishing these actions the defendants on their part agree to pay the sum of $40,000 in down-town lots; and in addition thereto, the legacies and devises left them by their aunt’s will.
    “ The terms ‘ bequests and devises,’ legally and in the eyes of a court of equity, carry with them, as to the latter, the rents accruing from the time of Miss Wistar’s death; and as to the former, the interest arising since a period one year distant from that event.
    “ Now, although indisputably prior efforts towards a compromise were made, and letters having that object in view passed between the counsel on either side, it cannot with justice be contended that there exists such a connection between the former abortive attempts at a settlement, and the final agreement as will constitute the former part of the latter.
    “ The letter of Mr. Wain, of April 5th 1871, raises up an impassable barrier between the two transactions, and as strongly as is within the power of language, separates them ; he there peremptorily and abruptly, without assigning any reason whatsoever, declines all propositions of settlement, and declares that all inducements offered by him are withdrawn.
    “Any effort to unite them in one transaction must therefore fail, and we may proceed at once to the consideration of the argument urged by the defendants, that the agreement in question was entered into through mistake, and was the result of mutual surprise ; that the former attempt at settlement was broken off owing to the fixed desire of the complainants to obtain over and above the $67,500 named therein as a basis of compromise, the rents and interestsarising upon the devises and legacies; and'finally that the words ‘bequests and devises,’ as used by the counsel for the complainants in their letter of December 26th 1871, and acceded to by Mr. Wain, in his of January 1st 1872, were not intended, by either party to the compromise, to bear the strict legal interpretation which a court of law would accord them.
    “It will be necessary perhaps to answer these objections somewhat at length.
    “ The mistake and surprise, if any existed, were certainly unilateral, and not mutual; there is not the shadow of a reason for the supposition that the complainants on their part did not knowingly and with a full understanding of the legal import of the words used by them, consummate the agreement; nor is there anything whatever to indicate that they were in any way conscious of a mistake or misapprehension on the part of the defendants.
    “ Granting, then, for the sake of argument, that the defendants labored under the erroneous impression that in this amicable settlement, by a sort of tacit agreement the legal significance of the words was for the time being waived, would such a misconception, in equity, relieve them from the consequences of their act ?
    “ The master is of the opinion that a misconception, such as is claimed by the defendants, is, even if clearly shown, insufficient to overthrow an agreement for the settlement of a family dispute. But it must be held in mind that, to set aside a written contract upon the ground of mistake, the mistake must either be admitted in the bill or answer, appear from the nature of the case, or else be clearly and satisfactorily proved; neither of which three things is the case here. The sole evidence which goes to establish mistake on the part of the defendants, is the testimony of Mr. Richard Wistar, who not only declares that a former negotiation was terminated, owing to a disagreement in regard to the inclusion or exclusion of the rents and interests arising from the legacies and devises, but testifies that the principal agreement in question was entered into upon the understanding that they were to be included in the $>40,000 named therein.
    “Now, apart from the extreme danger of allowing an interested party, by means of his sole and unsupported testimony, to provoke mistake, and so free himself from the deliberate obligations imposed upon him by means of a written contract, the evidence of Mr. Wistar is, in the master’s opinion, contradicted by the presumptions arising from the facts of the case.
    “ If the former negotiation referred to by him is the attempted settlement so abruptly terminated by Mr. Wain’s letter of April 5th 1871, and it was broken off, as he declares, owing to a desire on the part of the complainants not to include the rents and interest arising from the legacies and devises in the $67,500 named therein as a basis of compromise, what is the conclusion to be derived from such a state of facts ?
    “Would the defendants, acting subject to the advice of counsel of great experience, and who must be supposed to have rendered them fully cognisant of the legal meaning of the terms used, and forewarned by their former experience of the démands of the complainants, have carelessly and hastily acceded to a contract which, by its language, accomplished the very object which they were so anxious to avoid? On the contrary, would they not naturally have been most careful to provide against anything like mistake by insisting upon the use of the words and phrases which would legally secure them from future misapprehension and annoyance? By the terms of the former abortive attempt at settlement, had it been consummated, the complainants could have obtained nothing more than $67,500. Why then an alteration in the meaning of the final agreements, if it were not that the defendants had undergone a change of purpose, and had at length determined to accede to the complainants’ demands ? This inference is certainly unavoidable in view of the fact that it was the former and not the latter, who, as the time for the trial of the feigned issue approached, reopened, first, the matter of amicable settlement and tendered an offer of compromise. * * *
    “ The clause in regard to the appointment of appraisers is not an arbitration or reference, but merely an agreement for the appraisement of land. What then might have been the effect of Mr. Bedlock’s refusal to act, had he, in conjunction with one or more persons, been originally, by name, selected as an appraiser, it is useless to discuss; as the matter stands it is incumbent upon the defendants, in pursuance of their agreement, to name some one who will consent to act, or failing that, to pay the $40,000 in cash.” * * *
    The master reported that the complainants were entitled to a decree in their favor, viz.:—
    1. That the agreement reported by the master, as proved, be established, and ordered to be carried into execution.
    2. That the defendants, within thirty days, appoint a referee to appraise the lots, in conjunction with the appraiser appointed by the plaintiffs, and in default of appraisement within sixty days, unless the default be occasioned by the neglect of plaintiffs’ referee to act, that the defendants pay to the plaintiffs $40,000, the plaintiffs releasing all claims against the estate of Sarah Wistar, except their interests under her will.
    3. When lots to the amount of $40,000 shall have been appraised, the defendants to be ordered to convey them to the plaintiffs, as tenants-in-common, the plaintiffs to release as above.
    The defendants excepted to the report of the master.
    The Court of Common Pleas, Peirce, J., overruled the exceptions, confirmed the report, and made the decree recommended by the master.
    The defendants appealed to the Supreme Court, and in a number of specifications assigned the confirmation of the report and the decree of the court below for error.

      N. R. Sharpless and E. Wain, for appellants.
    The only consideration for the agreement was the restoration of family peace; there was a manifest misunderstanding between the parties as to its meaning ; and if the legal construction be as the plaintiffs contended, it was a mistake, and that ground is a defence to specific performance: Snell’s Equity 440; Fry on Specific Performance 212. Specific performance will not be enforced in favor of a feme sole, because it could not be enforced against her: Bispham’s Equity 348, 349. To enforce specific execution the terms must be clear: Walpole v. Oreford, 3 Vesey 402; Snell’s Equity 425; Lumly v. Wagner, 1 De Gex, M. & G. 604.

      P. P. Morris and Cf. W. Biddle, for appellees.
    Although no money was paid, and although there was no seal to import a consideration, and although the contract was in part executory, equity, in view of the relations of the litigants to each other, and the character of their controversy, declares such an agreement binding, and one which a chancellor will enforce: Williams v. Williams, 2 Drewry & Smale, 378; s. c. Law Rep. 2 Chanc. Cases 294. In cases of family arrangements the court gives great weight to considerations -which w'ould not be taken into account in ordinary contracts: Stapilton v. Stapilton, 1 Atkyns 2; Stockley v. Stockley, 1 Ves. & B. 31; Cory v. Cory, 1 Ves. Sen. 19; Shartel’s Appeal, 14 P. F. Smith 25; Lies v. Stub, 6 Watts 52; Barton v. Wells, 5 Whart. 227. The termination of a family controversy is a benefit in which all the family share, and therefore a sufficient consideration for the agreement: Bailey v. Wilson, 1 Dev. & Bat. 182; Woolfolk v. Woolfolk, 4 Dana 435; Naylor v. Winch, 1 J. & J. 564. The compromise of a doubtful right is a good consideration : Cann v. Cann, 1 P. Wms. 723; Barlow v. Ocean Ins. Co., 4 Metc. 270; Cook v. Wright, 1 B. & S. 550 (101 E. C. L. R. 559); Gallager v. Bishoppsheim, Law Rep. 5 Q. B. 5, 449; Perkins v. Gay, 3 S. & R. 332; O’Keson v. Barclay, 2 Penna. R. 531; Brown v. Sloan, 6 Watts 421; Rice v. Bixler, 1 W. & S. 445; Masson’s Appeal, 20 P. F. Smith 26.
    When specific performance ought to have been, and would have been, decreed upon the state of facts existing when the bill was filed, but cannot be decreed upon a hearing of the cause, because the defendant, pending the suit, has voluntarily disabled himself to make a conveyance, the court will not permit itself to be ousted by fraud or contrivance of a jurisdiction rightfully and legally acquired, but will proceed against him who thus attempts to injure another and impose upon the court; and will, by the assessment of damages, compel him to make compensation for the injury: Woodman v. Freeman, 25 Maine 531; Phillips v. Thomas, 1 Johns. Ch. 131; Hatch v. Cobb, 4 Id. 559; May v. LeClaire, 11 Wall. 236.
    May 8th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

It is certainly true that all agreements for the compromise and settlement of family disputes are favorably regarded, both in courts of law and equity, and are supported, not only as beneficial in themselves, but as conducing to peace and harmony, where it ought most especially to exist: Shartel’s Appeal, 14 P. F. Smith 25. And in one case such an agreement was upheld, even where there had been a misconception of his legal rights by one of the parties: Lies v. Stub, 6 Watts 52. But the principle is not to be carried so far as to work practical injustice. Especially it ought not to override every other rule upon which courts of equity proceed in the enforcement of the specific performance of contracts. A bill for that purpose is always an appeal to the conscience of the chancellor, in which he exercises a sound discretion under all the circumstances, and he will not interfere if the bargain is hard or unconscionable, or the terms unequal, or the complainant is taking an undue advantage from the strict legal construction of the words: Oil Creek Railroad v. Atlantic and Great Western Railroad, 7 P. F. Smith 65. Even at law it may be stated as a sound principle of determination, that if the reasonable interpretation of an alleged offer and acceptance shows that something material as between the contracting parties is left to be afterwards arranged, the mind of the defendant never assented to all the terms proposed, never was at one with the'mind of the plaintiff, there would be no agreement between him and the plaintiff, for breach of which an action would be maintainable. A fortiori, in a court of equity, unless it is perfectly clear that the minds of the parties have come together and been in accord upon all the material terms of the agreement, a chancellor ought to decline to interfere, but leave the parties to their legal remedies. In the compromise of family disputes particularly, the agreement of compromise should be complete in itself, not a mere plan looking to a future adjustment of details; more especially when, so far from settling the family difficulties, it will be itself merely the germ of future litigation. Otherwise, instead of promoting peace and harmony, it may be the source of prolonged discord and dissension.

We are of opinion that the correspondence, upon which the alleged compromise in this case rests, does not show clearly that the minds of the parties were at any time at one, and that specific performance ought not, therefore, to be decreed. A very important matter of dispute, whether the bequests and devises in the will of Sarah Wistar, which was in contest, in favor of the complainants, should carry with them the accretions from the date of the will, was a point not mentioned. Upon a strict legal construction of the words of the offer and acceptance, they would follow. It is not an insignificant fact that in a former unsuccessful attempt to compromise this family controversy, they had split upon this very question of an account of these accretions. Had it been in the minds of both parties when these letters passed, it certainly would have been mentioned or attended to. If it was in the minds of the complainants they should have expressed it, and not to have left it to a mere legal inference, that the devises and bequests would of themselves carry their accretions. But this is not all. It is very clear that when Mr. Wain introduced the subject of a compromise in his note of December 22d 1871, he meant the arrangement to be a complete and final one. “ The Messrs. Wistar will pay in full settlement and satisfaction of all interest and claim of the legatees in their deceased aunt’s estate, |40,000, in downtown lots.” The whole controversy was to be settled by a round sum in down-town lots, according to an appraisement by persons eventually to be chosen, and that was to be the end of it. When the counsel of the complainants proposed to vary his offer by the addition of the devises and bequests contained in their aunt’s will, Mr. Wain had no reason to suppose that the main purpose in view —an immediate and final settlement, which would at once put an end to all litigation and produce family peace — was thereby to be abandoned. The legacies and devises to the complainants, or to the defendants in trust for them, were all specific. There was no element of uncertainty and dispute introduced thereby into the arrangement. But when they go further and claim all the accretions upon these devises and bequests since the death of the testatrix — subject to all just allowances to the trustees — and without any provision as to the manner in which the amount which would be coming to the complainants, was to be ascertained and settled, it is evident that here is a matter of account extending over a period of five years, and without some new agreement, only to be reached by adverse proceedings. The defendants then as trustees would remain liable to account. It is not easy to regard this as a full settlement of all interest and claims of the complainants, such as was contemplated by Mr. Wain’s proposition of December 22d 1871.

This was not then the case of a mere misconception of their legal rights by the defendants. It was a failure of the whole purpose of the compromise, which was to be a full, final and immediate settlement of all matters of controversy, so that domestic peace and harmony might be at_once and for ever restored between these near relations. Under all the circumstances we think that it would not be equitable to enforce the specific performance of this alleged agreement of compromise.

Decree reversed and the bill dismissed, each party to pay their own costs in this court and in the court below.


author: Chief Justice Agnew

text:
    Ash’s Appeal.
    1. An unmarried woman conveyed all her estate in trust to invest it and pay the income to her during life for her separate use whether covert or sole, so as not to be liable to the control or debts of any husband she might have, nor to ‘‘ any charge, &c., or anticipation by her,” &c.; in case she should marry and survive her husband, the trust for her separate use should continue whilst discovert and during any future coverture; after her death, to such persons and estates as she by will might appoint, and in default of appointment for the use of her children or child living at her death and the issue of any who might be dead, ‘‘their heirs, executors and administrators as tenants-in-common, such issue to take the shares which the parents would have taken any husband who might survive her to take a child’s share; if she should leave no issue the estate to pass to her right heirs and next of kin according to the intestate laws. Held, to be an active trust.
    2. The trust was not for coverture, but to bind the hands of the cestui que trust and take the control of her estate from her for life, to secure it against loss or improvidence.
    3. This trust being for life with remainder, to living children and not to heirs general or issue, the life estate and remainders did not coalesce.
    4. Ashhurst’s Appeal, 27 P. F. Smith 464; Earp’s Appeal, 25 P. F. Smith 119, similar trusts.
    February 4th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Philadelphia: In Equity: Of January Term 1874, No. 272.
    The proceeding in this ease was to declare that a trust under a deed from Ellen M. Ilarland to Delphina Bowen and Joseph M. Cowell had failed.
    The deed was dated April 11th 1856. It recited that the grantor was “ entitled to a considerable estate, principally consisting of bonds and mortgages, at present in the possession and name of her late guardian, and which, for the preservation of the same,, and her secure enjoyment of the interest thereof, she is desirous of settling for her sole and separate use, and upon the trusts here-' inafter mentioned.” It then granted all her estate, whether standing in the name of her late guardian or in any other name whatsoever, to the grantees; in trust to receive it from such persons as may have and hold it during her life for her sole and separate use and keep it invested, &c., and to pay the income to her during her life “ for her own sole and separate use whether covert or sole, hut 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 or husbands, she, the said Ellen Margaretta Harland may hereafter have or take, nor be liable to any charge, encumbrance, assignment or anticipation of her, the said Ellen Margaretta Harland, whether sole or covert, nor be applied to any other purpose or object than the sole and separate use of the said Ellen Margaretta Harland, it being expressly provided, in case the said Ellen Margaretta Harland shall intermarry with any husband and survive him, that the trust hereby created for her sole and separate use shall not thereby determine, but shall continue during such time as she may remain sole and discovert, and dui’ing any future coverture of her, the said Ellen Margaretta Harland, in the same way and manner as if such discoverture and survivorship had never taken place; and from and immediately after the death of the said Ellen Margaretta Harland, * * * to and for such parties and persons, and for such uses, intents, purposes and estates therein as she, the said Ellen Margaretta Harland, whether covert or single at the time of her death, may by any last will and testament, or instrument in the nature thereof, direct, provide, limit and appoint. And in default of such direction or appointment, or so far as such direction or appointment may not extend, or may be incapable of taking effect, * * * for the use of her children (or child, if only one), who shall be living at the time of her death, and the issue, if any, of any of her children (or child, if only one), who may be then deceased, their heirs, executors and administrators, as tenants-in-common, such issue of' deceased children, if any, to take the shares which their parents would have respectively taken, if living, and any husband whom the said Ellen Margaretta Harland may leave surviving her to be entitled to a child’s share, in common with any such child or children, or issue of deceased child as aforesaid. And if there should be no issue of the said Ellen Margaretta Harland living at the time of her death, then from and after the death of the said Ellen Margaretta Harland as to the real estate to and for the use of her right heirs for ever, and as to the personal estate to and for the use of such person or persons as would by the laws of Pennsylvania have been entitled thereto, if she had died unmarried, intestate and without issue.” * * *

      Miss Harland on the 2d of April 1857, married Thomas R. Ash, by whom at the time of the filing of the bill in this case, she had had six children, three only of whom were then living.
    On the 19th of March 1873, she and her husband filed a bill against Delpbina Bowen and Joseph M. Cowell, trustees in the trust deed; it set out:—
    1. The making of the trust deed.
    2. At its date she had just reached full age; she was not then contemplating marriage and had no acquaintance with her husband, the other plaintiff.
    3. The trust was created “ for the preservation of her estate and her secure enjoyment of the interest, and she had no other idea in making the trust than to place her business in safe hands, and to provide against the misconduct or «misfortune of any and every' husband she might eventually have.
    4-7. The several clauses in the deed were made to carry out this intent.
    8. The trustees accepted and were exercising the trust.
    10, 11. Averred that the trusts were inoperative and Mrs. Ash was entitled to have an absolute transfer of the whole estate; but the trustees declined to transfer, except under the order of the court.
    12. The estate was in the hands of the trustees and consisted wholly of' personal property.
    The prayers were for an account and transfer of the whole property to Mrs. Ash absolutely.
    The defendants by their answer admitted all the allegations of the bill and submitted themselves to the direction of the court.
    The Court of Common Pleas dismissed the bill, Paxson, J., who delivered the opinion, saying:—
    * * * “ The bill avers, and the answer admits, that at the time of the execution of the deed of trust, the said Ellen was unmarried, was not in contemplation of any particular marriage, and did not know Thomas Reeves Ash, with whom she afterwards intermarried.
    “It was said in Wells v. McCall, 14 P. F. Smith 215, that the creation of a trust constitutes the evidence of the fact of marriage being in the contemplation of the donor or devisor, and when this is followed within a reasonable time by consummation of the marriage, it concludes the proof. Where, as here, the settlement was made by the party herself, followed by her marriage within a year, the evidence has almost the force of an estoppel.
    “We are asked to strike down this trust upon the mere statement of Mrs. Ash, that she was not in contemplation of this particular marriage when the deed was executed. It is true, the trustees, in their answer, admit this with the other allegations of the bill. I do not, however, regard their admissions. They are not defending this ease. They allowed judgment to go against them by default, and come in only because required to do so by the court. They wholly neglect to call for the proof of anything. And this, notwithstanding the fact that the said Ellen is now covert, the contingency contemplated by the trust, and the peril which she sought to protect her estate against.
    “ If the case were doubtful, I would dismiss the bill pro forma, and thus' compel the plaintiff to obtain the decision of the Supreme Court. But I do not so regard it. Aside from the question above stated, Mrs. Ash has lost the control of her property by engrafting upon the trust a provision which limits her enjoyment of the property tó a life estate, with remainder over, upon failure to appoint, to her children and husband. The effect of this is to break the course of descent, and the remaindermen take as purchasers by description, and not as heirs. The rule laid down is that, when an estate for life only is given, followed by a general power of appointment, and on failure to appoint, to children or to special heirs, the power to appoint will not enlarge the estate of the cestui que trust to a fee, and on a failure to appoint, the children or special donees in remainder, take by purchase from the donor, and not by way of limitation as heirs to the cestui que trust: Dodson v. Ball, 10 P. F. Smith 492. This is not a mere separate use trust. It is a special, active trust, and must be kept alive to support the remainders.”
    The plaintiffs appealed to the Supreme Court, and assigned for error the decree dismissing the bill.

      S. P. Page, for appellants.
    A special trust for coverture cannot be upheld in Pennsylvania, unless the coverture provided against be “ in the immediate contemplation ” of the testator or settlor: Wells v. McCall, 14 P. F. Smith 214. If the particular husband was not, in the view and contemplation of the settlor, at the time the settlement took effect, the special trust for that coverture falls: Ogden’s Appeal, 20 P. F. Smith 501; Yarnall’s Appeal, Id. 335; McBride v. Smyth, 4 Id. 250; Tucker’s Appeal, 25 Id. 354; Culbertson’s Appeal, 26 Id. 145. The duties, however active, imposed upon the trustees in a special trust for coverture, do not sustain the trust, if the purpose for which those duties were imposed or created fails, as in the events already considered. Such a trust falls, not because it is not an active one, but because it is special: Koenig’s Appeal, 7 P. F. Smith 352; Megargee v. Naglee, 14 Id. 216; Dodson v. Ball, 10 Id. 497; Freyvogle v. Hughes, 6 Id. 228. When there is reserved to the first taker a power of appointment, by will, and the limitations over on a failure to appoint are to such as would take under the intestate laws, the life estate first given is unquestionably enlarged to a fee, .and that, in spite of “ words of distributive modification, with words of limitation added,” when as by the rules of descent: Physick’s Appeal, 14 Wright 128; Russell’s Appeal, 25 P. F. Smith 269; Ralston v. Wain, 8 Wright 279; Pott’s Appeal, 6 Casey 168; Co. Litt. 22 b; Haldeman v. Haldeman, 4 Wright 29.

      O. W. McKeehan, for appellees,
    cited Earp’s Appeal, 25 P. F. Smith 269; Ashhurst’s Appeal, 27 Id. 469.
    February 14th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

This is a case of an active trust for the.natural life of Ellen M. Harland, now Mrs. Ash. The corpus of her estate is, by her deed, vested in the trustees who were to take possession, receive, hold, invest in their own names, and control the estate, to enable them to carry out the trusts declared, the chief one of which is, to hold the estate for her natural life, and to pay over to her, whether covert or sole, the net interest, income and dividends thereof, and in such way that the estate should not be answerable for, or liable to, any charge, encumbrance, assignment, or anticipation by her, whether sole or covert, and that the trust should continue, whether sole or covert, and should not fall at the death of any future husband, with remainder to the use of her living child or children, as tenants-in-common. The duties are clearly active, and essential to support the trust, and the trust is similar to that in Earp’s Appeal, 25 P. F. Smith 269, and Ashhurst’s Appeal, 27 Id. 464. It is not a trust for coverture merely, but one created to bind the hands of Ellen M. Harland herself, and take the control of her estate out of her own hands for life, in order to secure it against loss or improvidence. A trust for an estate in fee or absolutely for coverture merely, may fail, or may not take effect at all. But in this ease the trust is clearly for life with remainder to living children in equal shares, and not to the heirs general or issue of Ellen M. Harland. The life estate and remainders do not coalesce. The trust, therefore, cannot be declared to have failed.

Decree affirmed with costs and appeal dismissed.


author: Mr. Justice Gordon

text:
    Platt’s Appeal.
    1. A man and woman were married in New York and removed to Ohio, where they lived a number of years : the husband left his residence and came to Philadelphia; the wife about the same time went to Wisconsin ; six months afterwards the husband removed to Michigan, and in September 1867, a year afterwards, commenced proceedings in divorce in a court there, alleging desertion by the wife occurring in Ohio; process was issued commanding the wife to appear, &c.; the sheriff returned that he could not serve it; publication was made; the wife not appearing, testimony was taken and in January 1868, a decree of divorce was decreed. The wife in 1869 moved to Michigan and commenced proceedings in the same court to annul the decree. The husband died in Philadelphia in 1871Held, that the decree of divorce was void as to the rights of parties in Pennsylvania and that the wife was entitled to a share of the husband’s estate as widow under the intestate laws of Pennsylvania.
    2. The wife residing in Michigan at the time of the husband’s death, she was not entitled to the $300 under the Act of April 4th 1851.
    February 23d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: Of July Term 1874, No. 4. In the estate of Anson H. Platt, deceased.
    Alexander McCurdy, administrator, &c., of the decedent, having filed his account, it was referred to David Weatherly, Jr., Esq., as auditor to adjust, &c., and report distribution.
    The auditor found that the balance in the hands of the administrator, after payment of debts and expenses, was $612.38.
    Of this balance Mary W. Platt, as the widow of the decedent, claimed $300 under the Act of April 4th 1851, sect. 5, Pamph. L. 613, 1 Br. Purd. 416, pl. 60; also one-third of the remainder after deducting the $300. Mary E. Tucker, Cassius L. Platt and Lucius C. Platt, children of the decedent, claimed the remaining two-thirds.
    Louisiana Platt (or Middleton) alleged before the auditor, that Mary W. Platt had been divorced from the decedent and that he had subsequently married her (Louisiana), and that he had by her one child who survived the decedent a few months and died quite an infant. She claimed that she was entitled to the $300 under the Act of 1851, and also the share of the balance which would have been her child’s.
    The principal question was whether the decedent was lawfully divorced from Mrs. Mary W. Platt.
    The auditor reported the facts as follows:—
    “ On October 1st 1838, the decedent and Mary W. Lapham, both of them then being residents of Poughkeepsie, in the state of New York, were married at that place. They continued to live together as man and wife until on or about April 1st 1865, at which time they were residents of Yellow Springs, in the state of Ohio. On or about said last-mentioned date, he left Yellow Springs, and came to the city of Philadelphia; and about the same time, Mrs. Platt removed to the house of her mother, in Plymouth, in the state of Wisconsin, where she remained until September 1866, when she removed to Sheboygan, in the state of Wisconsin, and there remained until August 1869, when she removed to Holland, in the state of Michigan, where she still resides. About October 1865 Platt removed from Philadelphia to Ann Arbor, in the state of Michigan, and on the 24th day of September 1867, filed his hill of complaint against his wife, Mary W. Platt, in the Circuit Court for the county of Washtenaw, Michigan, in chancery, praying for a dissolution of the marriage, upon the ground of desertion by his wife, which he alleged occurred on or about April 1865, at Yellow Springs, Ohio. A subpoena issued out of that court, directed to Mrs. Platt, commanding her to appear and answer the bill, to which the sheriff made return that he was unable to serve it on the respondent, whereupon an order of publication was granted by the court, and the same was published in accordance with the terms of the order: respondent not appearing, and testimony of witnesses in support of the allegations in complainant’s bill having been taken, the court, on the 24th day of January 1868, did ‘ order, adjudge and decree that the marriage between the complainant, Anson H. Platt, and the defendant, Mary W. Platt, be dissolved, and the same is hereby dissolved accordingly, and a divorce from the bonds of matrimony between the said parties is also adjudged and decreed.’ Subsequently, Mrs. Platt filed her bill in the said court, to have the decree set aside, pending which, on the 23d day of October 1871, Anson H. Platt died at Philadelphia, where he had been for some time residing.
    “ It was conceded by the counsel for Mrs. Platt, that, after said decree of divorce had been obtained, and until his decease, An-son H. Platt lived and cohabited with the herein before-named Louisiana Middleton as his wife, introducing her to his friends or speaking of her to them as such wife, and that he had by her one child, who survived him some months, but is now deceased.
    “ It will thus he seen :— ,
    “ 1. That the marriage between the decedent and the said Mary W. Lapham took place in the state of New York, of which they were citizens.
    “ 2. That the alleged desertion by the said Mary W. Platt occurred whilst she and her husband were citizens of the state of Ohio.
    “ 3. That the divorce was decreed by a court of the state of Michigan, in which state the cause of action did not accrue, and where the parties never lived as husband and wife, and where the wife was never served with process, and never appeared, or came to reside until after the final decree of divorce, and in no stage of the proceedings participated, either'in person or by counsel.”
    The auditor was of opinion that the decree of divorce made by the court of Michigan, could not operate so as to destroy the right of Mary W. Platt to share in the fund in the hands of the accountant, and that Louisiana Middleton or Platt was not entitled to share in said fund.
    The auditor accordingly distributed the remainder of the fund to Mary W. Platt and her children.
    Louisiana Platt filed exceptions to the report of the auditor; they were overruled by the Orphans’ Court and the report confirmed ; it was further ordered that the administrator pay out the fund according to the report of the auditor.
    The exceptant appealed to the Supreme Court and assigned for error:—
    1. That the court below decided that the decree of divorce was void.
    2. That the court below awarded to the first wife the allowance of $300, to which the appellant was entitled,

      W. L. Hirst (with whom was H. Thomas),

    for appellant, as to first error, cited: Colvin v. Reed, 5 P. F. Smith 375; Reel v. Elder, 12 Id. 308. As to second error, they cited: Odiorne v. Odiorne, 4 P. F. Smith 178; Hetrick v. Hetrick, 5 Id. 292; Spier’s Appeal, 2 Casey 234.

      H. H. McLoughlin (with whom was IF. AT. Shryoeh), for appellees,
    cited: Scott v. Noble, 22 P. F. Smith 115; Wharton’s Conflict of Laws, sect. 207 (5); Yelverton v. Yelverton, 1 Swabey & Tr. 591, s. c. 4 Phillimore 326; Terry’s Appeal, 5 P. F. Smith 347.
    February 14th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

That the decree of the court in Michigan, divorcing Anson H. Platt from his wife, Mary W., was nugatory and void, so far, at least, as it affected the rights of parties in the state of Pennsylvania, is a proposition that is not open to doubt. The cause of divorce did not arise in the state of Michigan, neither did the parties reside therein. Mrs. Platt was not served with process, neither did she appear to answer the libel. Under these circumstances, we cannot recognise this decree of divorce as binding on the appellee: Colvin v. Reed, 5 P. F. Smith 375; Reel v. Elder, 12 Id. 308. The auditor was therefore correct in recognising the right of Mary W. Platt to the share of her husband’s estate accorded to her, as his widow, by our intestate laws. On the authority, however, of Spier’s Appeal, 2 Casey 234, Odiorne’s Appeal, 4 P. F. Smith 178, and Hetrick v. Hetrick, 5 Id. 292, we dissent from the auditor’s award, to her of the $300, under the Act of 1851. At the time of Platt’s death, she was a resident of Michigan; so far as anything appears to the contrary, her separation from her husband was voluntary, nor does it appear, as in Terry’s Case, 5 P. F. Smith 344, that by any method she maintained the family relation as far as was in her power. Such being the case, the $300 must be stricken out of the distribution to her.

Decree reversed.