text:
    Earp’s Appeal.
    1. A testator gave the residue of his estate in trust to collect “ the rents, income and interest,” and pay one-fourth to each of his children during their lives and on the death of either, then to convey, &c., the fourth of the principal to such person as the deceased child by will, &e., might direct or appoint and in case of the death of either child without appointment, to grant, &c., a fourth of the principal unto such persons “ as would have been entitled to the same if the said deceased child had been legally seised of the same premises in his or her own right and died intestate.” Held to be valid active trusts.
    2. Barnett’s Appeal, 10 Wright 392, recognised; Ogden’s Appeal, 20 P. F. Smith 507 ; Yarnall’s Appeal, 20 P. F. Smith 336, distinguished.
    January 14th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from Nisi Prius, No. 16, to January Term 1873: In Equity.
    On the 20th of December 1872, George Earp, Hannah R>. Earp, William H. Armstrong and Anna E. his wife, in her right, filed a bill against Henry M. Phillips, trustee under the will of Robert Earp, deceased.
    The bill set out the death of Robert Earp, November 17th 1848, leaving real and personal estate and having made a will. The bill set out various provisions under the will and the following devise of the residue:—
    “ I hereby give, devise and bequeath all the rest, residue and remainder of my estate, whatsoever and wheresoever, real and personal, unto my said hereafter-named executors, their heirs, executors and administrators and assigns, to and for their only proper use and behoof, in trust nevertheless for the following uses, intents and purposes, viz.: in. trust to collect the rents, income and interest, and pay one equal fourth part unto my brother Thomas Earp, for the use and benefit of my son Robert Earp, Jr., while he shall be and remain of unsound' mind, or to such other person or persons as shall from time to time be his trustee or committee; hut in case he shall, at any time, regain the use of his reason, then and from thenceforth, to pay the same to him, the said Robert Earp, Jr., during his natural life; and one equal fourth part thereof unto each of my other three children, viz.: Hannah Earp, Anna Earp, and George Earp, Jr., during their natural lives respectively, and upon the decease of either of my said children, then in trust, as respects one equal fourth part of the principal of my said residuary estate, to grant, convey, assign and transfer the same unto such person or persons as such deceased child may direct or. appoint by any last will or writing to be in the nature of a last will, to be by him or her executed in the presence of two or more, credible witnesses; but in case of the decease of my said son Robert, without regaining the use of his reason, then in trust, as respects the one equal fourth part of my said residuary estate, to and for the only use and be-hoof of his surviving sisters and brother, under and subject to the trust hereby declared of and concerning the other three-fourths of my said residuary estate ; and in case of the death of either of my said children other than Robert, without making any appointment, then in trust to grant, convey and assign one equal fourth part of the said principal of my residuary estate unto such person or persons as by the daws of the Commonwealth of Pennsylvania would have been entitled to the same if the said deceased child had been legally seised qf the said premises, in his or her own right, and died intestate.”
    The children living at the filing of the bill were George Earp, Jr., Mrs. Armstrong and Hannah K. Earp. Neither of the daughters were married at the testator’s death. Thomas Earp died in 1861, and George Earp, Jr., was on his own application discharged as trustee in 1871, and Henry M. Phillips appointed at each time to fill the vacancy ; he is the sole trustee under the decedent’s will. The plaintiffs averred that the trusts under the will were inoperative, and that they were therefore entitled to an absolute transfer of the personal property and a conveyance of the real estate; the prayers were for an account and such transfer and conveyance.
    The answer of the trustee admitted the averments of the bill; he declared his willingness to account and make the transfer and conveyance prayed for, if the court should be of opinion that the plaintiffs were entitled to them.

      The bill was dismissed at Nisi Prius pro formd by consent of counsel.
    The plaintiffs appealed to the court in banc and assigned the decree for error.

      S. G. Thompson and Thompson, for appellants.
    These words vest absolute estates in the appellants. It was the intent of the testator to devise the whole estate to them. On their failure to appoint, the devise is expressly to their heirs. Thus the two estates uniting, the appellants would take absolute estates. The daughters were not married at the time of the decease of the testator. So far as they are concerned no trust can be said to have been made in contemplation of marriage. Not one word occurs which refers to husbands or their control. And in regard to George Earp, Jr., nothing appears which shows that the testator contemplated protecting his estate against claims made by creditors.
    Yarnall’s Appeal, 20 P. F. Smith 335, is a case somewhat similar to the present one: Ogden’s Appeal, Id. 501; Haldeman v. Haldeman, 4 Wright 30; Dodson v. Ball, 10 P. F. Smith 501.
    In Guthrie’s Appeal, 1 Wright 14, Judge Strong says : “ It is very carefully to be noted that in searching for the intention of the donor or testator, the inquiry is not whether remainder-men are the persons who would have been heirs, had the fee been limited directly to the ancestor. The thing to be sought for is, not the persons who are directed to take the remainder, but the character in which the donors intended they should take: Kay v. Scates, 1 Id. 31. A mere dry trust will not be sustained when the person equitably entitled to any property takes absolutely the entire beneficial interest, and the trustee has no duty to perform unless the trust be a special one intended to accomplish some object: Smith v. Starr, 2 Whart. 63; Ralston v. Wain, 8 Wright 283; Barnett’s Appeal, 10 Id. 392; McBride v. Smyth, 4 P. F. Smith 245; Dubs v. Dubs, 7 Casey 189; Potts’s Appeal, 1 Id. 168; Megargee v. Naglee, 14 P. F. Smith 216; Shankland’s Appeal, 11 Wright 113; Rife v. Geyer, 9 P. F. Smith 393; Nice’s Appeal, 14 Wright 143; Physick’s Appeal, Id. 128; Bacon’s Appeal, 7 P. F. Smith 505; Keyser’s Appeal, Id. 237.

      E. K. Price, for appellee.
    In the Earp will there is no trust for the sole and separate use of daughters, and no distinction between them and their brother George. The testator wished them all to have no power of alienation over the fee, or to give any husband or wife curtesy or dower in their shares; and the power of sale is vested solely in the executors to accompany limitations that adduced disability to convey. He wished them to have power to ivill only, and that under the restriction of having two credible witnesses present. These were sufficing objects for creating a trust for life; and there being no legal estate in the children, the legal remainder in fee could not accrue to them by the rule in Shelley’s case : Bacon’s Appeal, 7 P. F. Smith 504; Rife v. Geyer, 9 Id. 893; Barnett’s Appeal, Bell’s Estate, 10 Wright 392; Barclay v. Lewis, 17 P. F. Smith 316; Bacon’s Appeal, 7 Id. 504.
    A devise on a special trust for son and daughters may stand, if there be an expression of such intent; and the testator is the proper judge of the occasion for it. The gift of the power to devise to the children, shows that an absolute interest is not intended to be given to them: A. Keene’s Appeal, 14 P. F. Smith 264. And so does the power of sale and re-investment of the proceeds by the executors. Even though the fee be conveyed to one, the grantee may be restrained from alienating it during the life of the grantor: McWilliams v. Nisley, 2 S. & R. 507; Large’s Case, 2 Leon. 82. It may be restricted for an arbitrary term of twenty-one years, without reference to the disability of infancy: Lewis oil Perps. 160, 167, (52 Law Lib.); or during any number of existing lives, though having no connection with the estate limited. The law will not control the objects or purpose of the trust, if not for purposes violative of law or sound policy: Rife v. Geyer, 9 P. F. Smith. 393; Reese v. Ruth, 13 S. & R. 434; R. J. Wilson’s Estate, 2 Barr 329 ; Brown v. Williamson, 12 Casey 338; Lewis on Perps. 592, 622, 639, 643; Sylvester v. Wilson, 2 Tenn. R. 444.
    The law of Pennsylvania is not hostile to trusts. It will uphold such as are upheld in England, and will protect the bounty of the benefactor by a special trust to protect from creditors, when in England it would not be protected, as in Eisher v. Taylor, 2 Rawle 33; Yaux v. Parke, 7 W. & S. 19. No trusts that do not offend against morality, religion, or statutory prohibition, or the policy of the law that forbids a perpetuity, are ever struck down in Pennsylvania.
   The opinion of the court was delivered, May 11th 1874, by

Agnew, C. J.

Since the return to the former doctrine of trusts, in Barnett’s Appeal, 10 Wright 392, it has been our endeavor to maintain trusts upon their true foundation, as a means of preserving the dominion of the donor over his own property for his reasonable purposes, unless where a clear public policy strikes down the trust as no longer useful or as an unnecessary clog upon the title. There is no instance since Barnett’s Appeal, to my knowledge, in which this line of decision has been departed from. Yarnáll’s Appeal and Ogden’s Appeal, relied upon by the appellants as changing the current, are not exceptions, as will be shown presently. Many special trusts, and some of them for persons sui juris, have since been upheld, a few of which are referred to in Ogden’s Appeal, 20 P. F. Smith 507.

Why should the law be inimical to those special or active trusts which enable a testator or other donor to provide for the necessities of a family, and the changes made by death, misfortune or accident, or to enable him to preserve his'property for the objects of his bounty, when not contrary to any well defined public policy ?

The right of property is one protected by the bill of rights; and the right to regulate its use within reasonable limits, is a just corollary from the right itself. Trusts supply the means of carrying out family arrangements, and of breaking the force of the blow death deals against the head. They furnish a protection against improvidence, indiscretion, inexperience, imbecility, misfortune, and even vice, upholding the wishes of parents and friends, and inspiring even the dying with comfort. They are contrary to no principle of justice, wisdom or morality, and therefore demand our confidence and support in proper cases. Hence, when a special trust within these limits is clearly raised by the imposition of active duties on the trustee, or for purposes making it necessary to preserve the estate intended to be given, the will of the donor gives eflicaey to the trust. Voluntas donatoris in cTiarta sui manifesté expressa observanda.

The trust declared by Robert Earp in his will, is an active special trust, which must be maintained in order to give effect to his clear and well defined purpose in relation to his family. By well chosen words he invested all the residue and remainder of his estate in his executors, their heirs, executors, administrators and assigns, for their only proper use; in trust nevertheless, to wit: “ To collect the rents, income and interest * * * and to pay one equal fourth part thereof unto each of my other three children, viz.: Hannah Earp, Annie Earp, and George Earp, Jr., during their natural lives respectively, and upon the decease of either of my said children, then in trust, as respects one equal fourth part of the principal of my said residuary estate, to grant, convey, assign and transfer the same unto such person or persons, as such child may direct or appoint by any last will or writing in the nature of a last will, to be by him or her executed in the presence of two or more credible witnesses * * * and in case of the death of either of my said children, without making any such appointment, then in trust to grant, convey and assign one equal fourth part of said principal of my residuary estate unto such person or persons as by the laws of the Commonwealth of Pennsylvania, would have been entitled to the same, if the deceased child had been legally seised of the said premises in his or her own right, and died intestate.”

In this will there are four things to be noticed, distinguishing it clearly from Yarnall’s Appeal and Ogden’s Appeal. The corpus of the estate is fully and distinctly invested in the trustees, and put under their control. The bequests to the three children, Hannah, Annie and George, are only of the income. Their estates in the income are only for life, and without regard to coverture. The principal is devised and bequeathed to the persons who would be entitled to it under the intestate law. Here is plainly an active operative trust, following a manifest intention essential to carry it into effect, by holding the corpus of the property itself, in the hands of the trustee, during the lives of the testator’s own children, irrespective of any purpose in regard to coverture, to enable them to receive and apply the income only to these children, and then to carry over the principal or corpus to their issue at their deaths. Without maintaining the trust, this plain and lawful intent cannot be carried into execution.

In Yarnall’s Appeal, 20 P. F. Smith 386, the devise and bequest of Mr. Ellis was, “ in trust for the only proper benefit, use and behalf of all my children that may be living at the time of my decease, and the lawful issue of such of them as may then be deceased, in equal parts and shares as hereinafter directed and set forth.” Thus, the trust was of the estate itself and not of the income merely, and not for life, but in language that would .carry a fee under Wills Act of 1833, where no contrary intent appears. Eollowing this, was a direction to apply the income of the sons’ shares to their use during minority, and to pay the shares themselves to the sons at majority. Then came the direction as to the shares of the daughters, viz.: “ And the parts and shares of my daughters who may then be living at the time of my decease. I direct my said trustee to hold in trust, to pay the interest and income thereof to my said daughters during their natural lives, free from the debts, control or engagements of any husband they may have or take." This was followed by a power of appointment by the daughters by will, and on failure to appoint to convey their shares to those who would be entitled to take from each under the intestate law. The trusts for sons and daughters were alike of the corpus of the estate, the former being disabled from receiving it only during minority, and the latter being disabled for life manifestly in view of coverture only. Hence, we held as to the daughters, that the manifest'intent being to invest them with the whole estate, and the disability being in view of a coverture which never took place, the only object of the trust having ceased, the trust fell upon well recognised principles as to trusts for coverture. The question on the will was really one of interpretation in order to reach the intent of the testatrix as to the estate she intended to vest in her daughters, and the purpose of the trust. A trust for coverture is one of the well settled instances in the doctrine of special trusts, where the trust falls when no marriage is in immediate contemplation, or after the coverture has ended by the death of the husband, the doctrine of this state being that the trust does not revive by a second marriage: Megargee v. Naglee, 14 P. F. Smith 216, and cases cited; Wells v. McCall, Id. 207 ; Freyvogle v. Hughes, 6 P. F. Smith 228; Koeifig’s Appeal, 7 P. F. Smith 352. Perhaps a reason for the fall of this kind of trust is, that the donor having expressed coverture as its purpose, no other intent is presumed. Expressio unius est exelusio alterius.

Ogden’s Appeal, 20 P. F. Smith 501, was a case precisely of the same 'nature. Our greatest difficulty there was in the interpretation of the will in order to discover the true intention of the testator. That being ascertained to be similar to the intent in Mrs. Ellis’s will, viz., to confer the entire corpus of the estate upon Mrs. Ogden, and create a trust for coverture only, the same conclusion was reached as in Yarnall’s Appeal. The opening sentence of the opinion is a key to the case, viz. : “ If the trust for Mrs. Harriet V. Ogden, under the will of her father, Cadwallader Evans, be active, as decided by the learned judge of the Common Pleas, his decree was right. • This, therefore, is the, real question.” We thought, the whole estate being intended to vest in her, and the trust intended for coverture only, and no marriage being in contemplation, the trust was not active, and we reversed the decision of the court below. That this court meant -no attack upon the doctrine of active or operative trusts, the whole of the first paragraph of the opinion distinctly shows. An examination of the will, and of the interpretation of it in the opinion, will prove that Mr. Cadwallader Evans’s will has no likeness to that of Mr. Earp; and that nothing in the opinion countenances a position that would break down the trust in this ease. It is proper toyemark that the decision upon one will rarely ever forms a precedent for a decision upon another. Even the same words in one are often interpreted differently in another. Instances of these various readings will be found in Yarnall’s Appeal, 20 P. F. Smith 341. The reason is, wills being interpreted by the whole instrument, the intentions of testators in the use of the same expression, are discovered often to be as various as their own individuality. Hence, that which may appear to be contrariety of decision, is simply diversity in the testator’s intention.

The decree of the Court of Nisi Prius is affirmed with costs, and the appeal dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Fogerty et al. versus The Philadelphia Trust, Safe Deposit and Insurance Company.
    1. Fogerty made a mortgage which was assigned to an insurance company; he insured in the company, a condition in the policy being that he might receive his premium back three days after demand; — he assigned the policy to the company as collateral, sold the insured property, and assigned the policy subject to the collateral assignment to the purchaser. The company assigned for the benefit of creditors, no demand having been made for the return of the premium. The terre-tenant demanded a return of the premium from the. company’s assignee. Held, that the premium could not be set off against the mortgage-debt in a scire facias on the mortgage.
    2. There was no obligation to return the premium until after demand and therefore no debt until then.
    3. The assignment of the policy as collateral did not make the mortgage an incident to the policy.
    4. The assignment of the policy by Fogerty to the Insurance Company carried with it the option clause and this passed to the company’s assignee as part of their assets.
    5. The demand for the premium after the assignment created a debt to be paid ratably with other creditors.
    January 14th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Certificate from Nisi Prius: No. 347, to January Term 1872.
    This was an amicable scire facias sur mortgage entered March 4th 1872, in which the Philadelphia Trust, Safe Deposit and Insurance Company, assignee for the benefit of creditors of the Enterprise Insurance Company, was plaintiff, and Michael C. Fogerty mortgagor, and Charles M. Lukens and Thomas M. Montgomery terre-tenants, were defendants. A case was stated in the action, exhibiting the following facts:—
    On the 30th of March 1867, Fogerty being the owner of a lot of ground in the 18th ward of Philadelphia, executed a mortgage of it to Jacob Hays Carson to secure the payment of $1500 in three years from the date of the mortgage with interest. This mortgage was on* the 7th of August 1867 assigned to the Enterprise Insurance Company. Having erected a brick building on the lot, Fogerty procured from the Insurance Company an insurance against loss by fire to the amount of $1200, for. which he paid to the Insurance Company a premium or deposit of $24. One of the conditions of the policy was, that any person assured being the owner of the building insured and also the holder of the policy might at any time reclaim the deposit-money, which should be paid within three days after demand, subject to a deduction of five per cent. On the 9th of August 1867, Fogerty assigned his policy to the Insurance Company as collateral security for the mortgage-debt. On the 6th of March 1869, Fogerty sold his property, subject to the mortgage, to Frederick Steuhe, and assigned the policy to Steube as owner, subject to the assignment to the Insurance Company as collateral; both assignments of the policy were duly approved by the company. On the 19th of March 1869 Steube made another insurance with the same company on the same building for $1000, and paid a premium or deposit of $20. This policy contained the same conditions as that to Fogerty before mentioned. Steuhe afterwards sold the property to Lukens and Montgomery, subject to the mortgage, and on the 26th and 30th of March respectively made assignments of the policies to them ; the assignment of the first policy being made subject to the assignment as collateral to the Insurance Company. These last assignments were duly approved by the Insurance Company. On the 31st of October 1871, the Insurance Company made an assignment of all its property to the plaintiff for the benefit of creditors. The policy to Fogerty had been held by the Insurance Company up to their assignment for the benefit of creditors, and the policy to Steube had been held by Lukens and Montgomery from the time of their purchase. No demand was made of the Insurance Company for the deposit-money on their policies before their assignment, but a demand had since been made of the plaintiff. Lukens and Montgomery claimed that the deposit-money less five per cent, on each policy should be set off against the mortgage-debt.
    It was agreed, that if the amount off both deposit premiums could be set off, judgment should be entered for the plaintiffs for $1458.20 with interest, &c., if only for the deposit on the Fogerty policy, judgment to be entered for plaintiffs for $1477.20 with interest, &c., but if neither deposit could be set off, judgment to be entered for the plaintiffs for $1500 with interest, &c.
    A&new, J., delivered the following opinion at Nisi Prius :—
    “ When the mortgage-debt in question passed into the hands of the Trust Company by the general assignment for creditors on the 31st October 1871, the Enterprise Insurance Company were not debtors to either Fogerty or his assigns, on the two policies. No loss having occurred, the Insurance Company was held only on a contingent liability for a loss if any should occur. The sixth condition of the policy conferred an option upon the assured to rescind the policy and have it cancelled and the premium returned upon the terms stated. But until this option were exercised no debt or obligation to return the premium could arise. The mortgage-debt was one wholly independent of the policy coming to the Insurance Company by assignment from J. Hays Carson after the policy had been taken by Fogerty. The fact that Fogerty had assigned the policy to the Insurance Company as a collateral security for the payment of the mortgage, clearly did not make the mortgage an incident to or dependent upon the policy.
    “But the policy by the assignment was pledged for the payment of the mortgage, and therefore carried to the Insurance Company as assignee of'Fogerty all the interest he had in the policy (including therefore the option clause), and this by the general assignment passed to the Trust Company as part of the assets of the Insurance Company. It is difficult to see, therefore, how it is possible that any interest passed by Fogerty’s assignment to Steube and Steube’s to Lukens and Montgomery (subject by its terms to the assignment to the Insurance Company), which will entitle them to claim against the general assignee. The option was not exercised by any one before the general assignment. There being no loss at that date there was no claim against the Insurance Company to be set off against the mortgage-debt, while occurring afterwards it could only share ratably with the claims of other creditors. So the option exercised afterwards would create a debt for the premium to come in ratably in the same manner. In no view I can take of the case can I perceive any claim for the premium upon the exercise of the option to cancel the policy since the general assignment which can result in a set-off — but the assignee of Fogerty of the policy subject to the prior assignment to the Insurance Company must come in upon the distribution of the assigned estate along with other creditors.
    “The case of the policy taken out by Steube and assigned by him to Lukens and Montgomery stands on the single and plain ground that no option to cancel the policy having been exercised until after the assignment, no debt against the Insurance Company for a return of the premium had arisen, and now that it has arisen since the assignment, it stands as any other debt against the assigned estate and can have only its pro rata in the distribution by the assignees.
    “For these reasons judgment will be entered for the plaintiffs for the whole mortgage-debt of $1500, with interest from the 30th of September 1871, according to the terms of the stated ease.”
    The defendants certified the case to the court in banc, and assigned the entering of judgment for error.

      J. M. Pile, for plaintiffs in error.

      Porter (with whom was S. J. McCarthy), for defendants in error.
   Judgment was entered in the court in banc January 19th 1874.

Per Curiam.

This judgment is affirmed on the opinion of the judge at Nisi Prius.


author: Mercur, J.

text:
    Long versus Rhawn, Executor, &c., of Wood.
    1. When anote passes after maturity it is dishonored paper and the endorsee takes it subject to equities connected with the note ; but not to set-off generally.
    2 In a suit by an endorsee against the maker of a note passed after maturity, Held, that the fact that the note was made with the understanding that it was to be discounted for the payee and taken up by him and the proceeds paid in discharge of a debt due to the maker; — that the proceeds were so paid, that the payee took it up and retained it and passed it to plaintiff in consideration of a loan made by her to him, would be a defence to the suit.
    January 14th 1874.
    Before A&new, 0. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.

      Error to the District Court of Philadelphia: No. 244, to January Term 1874.
    This was an action of assumpsit, brought April 11th 1870, by Hannah Wood against George S. Long and others, trading as Pennock, Bagaley & Co. Long only was served. Pending the suit, the plaintiff died, and William H. Bhawn, her executor, was substituted.
    The action was by the plaintiff, as holder of the following note:—
    “$1000. Philadelphia, May 15th, 1865.
    “Four months after date, I promise to pay to the order of Henry T. Grout, One Thousand Dollars, value received, without defalcation, at the Fourth National Bank, Philadelphia.
    “Pennock, Bagaley & Co.”
    (Endorsed) “ Henry T. Grout.”
    On the trial, November 24th 1871, before Thayer, J., the plaintiff gave the note in evidence and rested. Plaintiff also admitted that the note in suit was, at the time of its maturity, in the possession of Henry T. Grout, and that it was passed to Hannah Wood, after its maturity, by Henry T. Grout, in consideration of the sum of $1000, lent by Mrs. Wood to Grout at the time he gave her the note, and paid by her to him at that time.
    E. J. Thomas, for defendants, testified that Grout and Pennock, Bagaley & Co., had transactions in relation to oil lands, some belonging to defendant and some to the firm. Grout was to receive the money for the land and pay it to Long. The lands were sold to an oil company; witness paid his money to Grout, as did other subscribers to the company in the summer of 1865. Grout acknowledged that he owed more than $1000 to Long.
    H. T. Childs testified that he was in Grout’s office; Long gave him a note of the same form and signature as that in evidence ; Long spoke of an unsettled balance and asked Grout if he could let him have $1000 of it; the balance was more than that; Grout gave Long a check, and Long gave him “ this note.”
    The plaintiff gave other evidence of a similar character.
    The court instructed the jury that the defendant had made out no defence and the verdict should be for plaintiff.
    The jury rendered a verdict for the plaintiff for $1382.25.
    The defendant took a writ of error, and assigned the instruction of the court for error.

      T. P. Jenkins and T. B. Pleoek, for plaintiff in error.
    The endorser of the note, at the time of the endorsement, was indebted to the makers in an amount exceeding the note, and as the endorsement was after maturity, the indebtedness could be set off: Byles on Bills 128; Crosley v. Ham, 13 East 497; Sargent v. South-gate, 5 Pick. 312; Sylvester v. Carpo, 15 Id. 92; Bridge v. Johnson, 5 Wend. 352; Driggs v. Rockwell, 11 Id. 504; Collins v. Allen, 12 Id. 356; Hotch v. Denis, 1 Fairf. 244. If a note is overdue when endorsed, the endorsee takes it subject to the same defence as if it remained in the hands of the payee: McKinney v. Crawford, 8 S. & R. 356; Barnet v. Offerman, 7 Watts 130; Snyder v. Riley, 6 Barr 164; Bower v. Hastings, 12 Casey 285; Lancaster Bank v. Woodward, 6 Harris 357; Hill v. Kroft, 5 Casey 186. A note placed like the present in the hands of a creditor as a security is as amere pledge, subject in the hands of the holder to any equity that could be set up' against it, in the hands of the person from whom he obtained it: Roberts v. Eden, 1 Bos. & Pul. 398; Collins v. Martin, 1 Id. 651; Kirkpatrick v. Muirhead, 4 Harris 117; Petrie v. Clark, 11 S. & R. 377 ; Depeau v. Waddington, 6 Whart. 220; Walker v. Geisse, 4 Id. 252. The note having been given by the plaintiff to the payee for the purpose of having it discounted at bank, so that the payee could obtain funds with which to satisfy a portion of his indebtedness to the plaintiff, was an accommodation note; the endorsement of it after maturity was a fraud upon the plaintiff, and the holder cannot recover on it: Hoffman v. Foster et al., 7 Wright 137 ; Barnet v. Offerman, 7 Watts 130; Bower v. Hastings, 12 Casey 285. All the testimony in the case was evidence from which a jury might infer that the relation between the parties was not that the makers of the note were the debtors of the payee: Connelly v. McKean, 14 P. F. Smith 113; Baisch v. Oakeley, 18 Id. 92-99; Elliott v. Ins. Co., 16 Id. 22; Stewart v. Wilson, 6 Wright 450; Roth v. Crissy, 6 Casey 149; Wilt v. Snyder, 5 Harris 77. The endorsee took the note long after its maturity, and “ staleness of claim is always suspicious in cases of commercial credit, which is based on punctuality Tams v. Way, 1 Harris 222; Cromwell v. Arrott, 1 S. & R. 180.

      B. Daniels and O. S. Pancoast, for defendant in error.
    An endorsee of an overdue bill or note is liable to such equities only as attach to the bill or note itself, and not to claims arising out of collateral matters ; and is not liable to a set-off due from the payee to the maker: Byles on Bills 130; Burrough v. Moss, 10 B. & C. 558 ; Stein v. Iglesias, 1 C., M. & R. 565; Whitehead v. Walker, 10 M. & W. 698 and note; Hughes v. Large, 2 Barr 103; Downey v. Tharp, 13 P. F. Smith 322. The defendant did not take the note as a collateral security for a debt due, but it was, passed to Hannah Wood after its maturity by H. T. Grout in consideration of $1000 then lent by her to Grout: Munn v. McDonald, 10 Watts 273.
   The opinion of the court was delivered, February 9th 1874, by

Mercur, J.

It is admitted that the note passed into the hands of the plaintiff below after its maturity. It was then in the eye of the law dishonored paper. It is true the endorsee did not take it subject to set-off, but he did take it subject to the equities arising out of, or connected with the note itself: Hughes v. Large, 2 Barr 103; Downey v. Tharp, 13 P. F. Smith 322.

The evidence showed that the payee was largely indebted to the makers of the note; that he had collected money for their use; that he was to pay the same over to Long, one of the makers; that when Long and Grout met at the office of the latter, Long spoke of the unsettled balance between them, and asked Grout if he could not let him have some of it: one thousand dollars. That then Grout gave Long a check for money, and Long gave Grout the note in question. It is claimed by the defendants below that for the purpose of paying them one thousand dollars, Grout suggested that their note for that amount should be drawn payable to him ; and that he would endorse it and have it discounted at bank, and thus obtain for them the money; and he would take it up at maturity. That thereupon Long gave the note in question, and Grout gave him the check for the same amount; that when the note matured it was taken up by Grout according to his agreement.

The learned judge deemed the evidence insufficient to submit to the jury, and directed their verdict to be rendered in favor of the plaintiff below. In this we think he erred. The facts proved, wholly unexplained by the plaintiff below, were sufficient to have been submitted to the jury to find whether the note was not given for the accommodation of Grout. It was given at an interview in which he admitted his indebtedness to the makers, and at a time when he was asked for a payment of the sum for which the note was given. Thereupon the note was executed and delivered to him, and he gave his cheek to Long for money. After the maturity of the note it was found in his hands and he then disposed of it to the plaintiff below. If the jury should find that the note was given under the circumstances claimed by the defendants below, and taken up by Grout when it matured, then the plaintiff below took it subject to all the equities which had attached to it while in the hands of Grout, and there was a good defence: Bower v. Hastings et al., 12 Casey 285; Wilson v. Mechanics’ Savings Bank, 9 Wright 488.

Judgment reversed, and a venire facias de novo awarded.


text:
    Thackray's Appeal.
    1. A guardian leased his wards' house and received $500 for the good-will in addition to the rent; the lessee with his consent assigned the lease to Binder and before the expiration of the term, the guardian leased to Binder for an increase of $100 rent per annum, but received nothing for the goodwill. Binder with the assent of the guardian assigned the lease and received for the good-will $1350. Held that the guardian was not chargeable for the value of the good-will not received by him.
    2. The good-will was not to be considered separately from the rental; it being for the purposes of leasing a part of the premises, its value to be considered in fixing the rent.
    3. Under the circumstances the court surcharged the guardian with an increased rent for the premises, the good-will enhancing it.
    January 16th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia: No. 268, to January Term 1872.
    In the matter of the account of John S. Thackray, guardian, &c., of Charles W. Sainter and Richard Sainter, minor children of Richard J. Sainter, deceased.
    The account was referred to E. Hunn, Jr., Esq., as auditor, to audit, settle and adjust, and report a distribution of the balance.
    The only question considered on this appeal was the liability of the guardian to be charged with the value of the good-will of a tavern belonging to the minors, the guardian having rented without receiving anything for the good-will.
    The facts of the case will sufficiently appear by the following portion of the auditor’s report, and the opinion of the Supreme Court.
    “ * * * Richard J. Sainter, the father of the said minors, died intestate in the year 1859, leaving his widow, Catharine Sainter, since Catharine Boyle, and his two minor sons, Charles W. and Richard Sainter, all of whom are still living.
    “ The property of the said decedent at the time of his death consisted of a three-story brick house, with three-story back buildings, with a front on Fifth street of eighteen feet, situated at the north-west corner of Fifth and Redwood streets, and used at that time and since as a hotel.
    “ John S. Thackray was appointed guardian of said minors on the 3d day of June, a. d. 1859.
    “The debts against the estate of deceased were about eight hundred dollars in all, and as there was not sufficient ready money on hand to pay them, the accountant, with the permission of the court, gave a mortgage on the premises for the sum of one thousand dollars, and proceeded to liquidate the debts. The said premises being the only real estate left by testator, who at the time of his decease was doing a poor business, which not showing any signs of improvement in the hands of his widow after his death, the accountant executed a lease for them to John Miller on the 1st day of December, A. D. 1859, for the term of five years, ending on the first day of December, A. D. 1864, for the annual rent of three hundred dollars, and received from Miller five hundred dollars in cash for the good-will of the premises. In the lease was the following clause:—
    “ ‘ It is further agreed that upon the expiration of his term, the said Miller shall have no claim to the fixtures which are now in, or which may be put in the said premises, nor any claim for goodwill.’
    “ John Miller did a poor business, and in the year 1860 sold out his unexpired term to John Binder by assignment in writing, with the knowledge of accountant, and received from said Binder the sum of seven hundred dollars in consideration of the unexpired term, good-will and fixtures.
    “ Several months prior to the expiration of the term of the lease, and about two years prior to the time when Charles W. Sain ter, the eldest of said minors, reached his majority, the accountant executed a new lease to John Binder for the premises, for a term of eight years, commencing on the first day of December, A. D. 1864, the date of the expiration of the term of the last mentioned lease, for a rent of four hundred dollars a year. The second lease was dated the 6th day of July, A. j>. 1864. It contained the following clause :—
    “ ‘ It is further agreed that upon the expiration of his term the said John Binder shall have no claim to the fixtures which are now in or which may be put in the said premises, nor shall he have any claim for good-will. It is further agreed that the said John Binder is to keep the said premises in repair at his own expense.’

      “ Eor this eight years’ lease accountant neither asked nor received any sum of money from the tenant Binder, other than the four hundred dollars per year rent; nothing was said about the good-will or fixtures, but it seems the mother of said minors was consulted by accountant before the execution of the lease. At this time the tenant Binder was doing a good business on the premises.

      “ On the said 1st day of December, A. d. 1864, Binder assigned the last mentioned lease to John Himmilsbach with the consent of the accountant, by a written assignment endorsed, and dated December 1st 1864 ; and received in consideration of the transfer and of the good-will and fixtures and stock on the premises, $1450: at the time of the transfer the value of the stock was $100; leaving $1350 the amount paid for the good-will and fixtures. On the 20th of July 1865 accountant served a written notice on Himmilsbach, saying that he had heard Himmilsbach had underlet the premises, and requiring him to repossess th'e same. On the 21st of July, A. D. 1865, Himmilsbach assigned, but did not deliver, the last-mentioned lease and the unexpired term thereof to Carl Euchs, by a written assignment also endorsed on the lease, and dated July 21st 1865; he received in consideration thereof $500 at the time and $1000 eleven months afterwards, having given possession of said premises to Euchs a few days subsequent to the date of the assignment. It was shown also that an additional sum of $200 was paid by Euchs to Himmilsbach subsequently to the payment of the $1000 last mentioned, and under the following circumstances: At the time of the payment of the said $1000, the lease and assignment not having been yet delivered, Himmilsbach refused to deliver them until a further sum of $200 should be paid him by Euchs. Euchs then went to see accountant, who said he did not know Euchs, and refused to approve the assignment. Euchs returned to Himmilsbach and informed him of accountant’s refusal to approve the transfer. Two days after this Euchs paid the $200 to Himmilsbach and Himmilsbach delivered to Fuchs the lease with the assignment endorsed thereon, dated as above mentioned, and signed as a witness by accountant, after which accountant acknowledged Fuchs as his tenant. Of this $200, $25 were paid to the mother of the said minors; and a like sum was handed about the same time to the accountant, who charged himself with it in his account.

      “ The minors claimed that accountant had been guilty of a breach of duty in letting the premises on an eight-year lease, when the eldest of said minors was within less than two years of being twenty-one years of age, and testimony was adduced to show that a much greater sum than $400 might readily have been obtained per year for said premises at the end of the year 1864, as well as a bonus for the letting of the premises for so long a term, and for the good-will and fixtures, and the minors asked the auditor to surcharge accountant with from $200 to $300 per year from the 1st day of December, a. d. 1864 to the present time.

      “ Testimony was also offered by accountant to show that the rent was sufficient, and that it was not customary to ask a bonus after the first letting.
    “ After a careful review of the testimony on both sides as to these points, your auditor concludes that the rent might perhaps have been a fair one, had a proper bonus or price been obtained for the term, good-will and fixtures ; but cannot approve the action of accountant in granting so long a lease under the circumstances.
    “ It will be observed that the premises were let by accountant for five years, from December 1st 1859, at a rent of $300 per year; and that he received a bonus of $500 at the commencement of the term for the good-will, which with the fixtures were to remain the property of the tenant for the term of five years only. Accountant therefore had the power, and the auditor conceives it to have been his duty, to sell the said good-will and fixtures, at the expiration of said term, for as much as he could obtain from a purchaser for the new term ; which from the testimony must necessarily have been for a much greater sum in 1864 on an eight years’ lease, than in 1859 on a five years’ lease; and this was shown by the actual sale of said good-will and fixtures, together with the stock in 1864 by the then tenant Binder to Himmilsbach, for the sum of $1450, the stock being worth only $100; as well as by the fact that Himmilsbach sold his unexpired term, good-will and fixtures, &c., to Fuchs for an advance, only a short time subsequent to Himmilsbach’s purchase from Binder. It is evident from these facts, and from the consent of accountant to each successive transfer, that the accountant actually presented the good-will and fixtures of the premises in question to John Binder, notwithstanding the fact that they were part of the estate of his wards; and that Binder and the tenants, his successors, speculated successfully by selling the gift, one to another; each one realizing a handsome profit on his bargain.
    “ In view of the above, your auditor deems it his duty to surcharge accountant with $1350, which sum is the difference between the amount obtained by Binder from Himmilsbach, and the value of the stock on the premises as above stated. * * *
    “ Counsel for accountant relied on the decision in Springer’s Estate, 1 P. F. Smith 342, as relieving accountant from all liability from being surcharged with the value of the good-will and fixtures ; but it seems to your auditor that ‘ supine negligence,’ if not ‘wilful default,’ is observable in this case.”
    The auditor accordingly surcharged the accountant with $1350, at which he valued the good-will and fixtures. He also surcharged the accountant with other sums, and distributed the whole balance which he found to be due by the accountant in equal proportions between the widow and two children.
    Upon exceptions by the accountant, the Orphans’ Court struck out the other surcharges, but retained that for the good-will, and with that alteration confirmed the report of the auditor.
    The guardian appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      F. C. Brewster (with whom were F. C. Brewster, Jr., and G. H. Armstrong), for appellant.
    To surcharge the guardian there must be satisfactory proof of supine negligence or wilful default: Moore’s Appeal, 10 Barr 438 ; Springer’s Estate, 1 P. F. Smith 345 ; Neff’s Appeal, 7 Id. 96 ; Palmer v. Jones, 1 Vern. 144. If there was no mala fides, nothing wilful in the conduct of the trustee, the court will always favor him: Knight v. The Earl of Plymouth, 3 Atk. 480. Trustees cannot be charged with more than they actually received, without wilful default: Pybus v. Smith, 1 Ves., Jr., 193; Rowth v. Howell, 3 Id. 565; Osgood v. Franklin, 2 Johns. Ch. Rep. 1; Thompson v. Brown, 4 Id. 619; Pim v. Downing, 11 S. & R. 66; Johnson’s Appeal, 12 Id. 317 ; Konigmacher’s Appeal, 1 Penna. R. 216; Stem’s Appeal, 5 Whart. 472. All that a court of equity requires from trustees is common skill, common prudence and common caution : Calhoun’s Estate, 6 Watts 185; Crist v. Brindle, 2 Rawle 122; Eyster’s Appeal, 4 Harris 376 ; Vez v. Emery, 5 Ves. 144.

      J. Dolman (with whom was P. Pox), for appellees,
    cited on the subject of a trustee’s liability: Johnston’s Estate, 9 W. & S. 107 ; Beckley’s Appeal, 3 Barr 426; Blackburne’s Appeal, 3 Wright 160; Pim v. Downing, 11 S. & R. 66; Wills’s Appeal, 10 Harris 325.
   The opinion of the court was delivered, March 9th 1874, by

Mercur, J.

Five assignments of'error have been filed, yet the only question is substantially raised by the fourth. It is this: Shall the appellant be surcharged with $1350, the alleged value of the good-will of the hotel, which it is claimed he ought to have demanded and received from the tenant ? The hotel property was owned by the two wards of the appellant, subject to their mother’s right of dower. Thus each of them was entitled to one-third of the rents. It appears that the appellant leased the whole property, collected the rents, and, in settling his account in the Orphans’ Court, charged himself with the whole amount. By the decree of the court below, the appellant is ordered to pay to said widow one-third of the sum with which he is charged, thus making an equitable distribution in an irregular manner. No objection, however, is made to his having blended the money of the widow with that of his wards.

Upon a former occasion, the appellant had leased the premises for a term of five years, at an annual rental of $300. As part of the arrangement, he also received from the lessee the gross sum of $500 for the good-will. It was expressly stipulated in the lease, that upon the expiration of the term, the tenant should have no claim to the fixtures which were then in or might be put in said premises, nor any claim for good-will. With that disposition of the good-will, no complaint is made. During the first year of the term, the lessee, with the knowledge of the lessor, assigned the lease to one John Binder. He entered into possession and paid the subsequent rent. Several months prior to the expiration of the term, the appellant leased the premises to said Binder for the further term of eight years, at the annual rental of $400, the lessee agreeing to keep the premises in repair at his own expense. The appellant did not charge nor receive anything specifically for the good-will. This lease contained the same stipulation as the former one, excluding the lessee from all claim for fixtures and good-will at the expiration thereof.

After expending $250 in improving the premises, Binder, at the commencement of the new term, assigned the lease, with the assent of the lessor, to one Himmilsbach, receiving for the same and for the good-will and fixtures $1350.

The auditor found and the court below held, the appellant to have been guilty of supine negligence or wilful default, in not demanding of and .receiving from Binder payment for the good-will, and therefore surcharged.him with the $1350.

• It does not appear that any other person offered to pay the appellant more than $400 per annum for the use of the property, nor to pay him for the good-will any sum whatever. The appellant evidently considered this letting as substantially a renewal of the lease to Binder. If it had been technically so, the whole evidence shows that it was not customary to charge for the goodwill. The evidence also shows that the bargain was made, and the lease executed, with the advice and approval of the mother. Then, whatever the equities of the minor children may be, it is clear that she cannot with any justice require the appellant to pay her any portion of the excess beyond the sum stipulated in the lease. There is no proof that she was deceived or in any manner defrauded by the appellant. She, then, has no equities to invoke and no wrongs to right against him. Hence it follows that the mother is bound by the lease, and the appellant cannot be surcharged for her benefit with any supposed or actual separate value of the good-will. In so charging him the learned judge erred.

It seems to us to be improper to consider the good-will separately from the rental. It was an incident so intimately blended with the house, that for purposes of leasing, it should have been deemed a constituent part of the premises. Its integral character should have been recognised as one of the elements in fixing*the value of the rental of the whole property. The auditor found that $400 would have been a fair annual rental of the property, if the appellant had also further received a separate and just compensation for the good-will; but as the appellant had not, the auditor surcharged him $1350 for the good-will of the whole term, beyond the sum stipulated- in the lease. The court confirmed this finding; therein we think it erred. During the first lease for five years, the appellant received a sum equal to $100 only per annum for the rental of the good-will. That was satisfactory to the appellees. It is not shown that the appellant had any just reason to suppose the annual rental of the good-will was worth any more during the second term than during the first term. In. fact the weight of evidence clearly establishes that the appellant should not have charged a tenant under a renewed lease for the good-will. This was practically Binder’s position. He had once paid for the good-will, and had been recognised as a tenant by the lessor.

,We think, under the whole evidence, $500 would have been a fair annual rental for the premises, including the good-will. The mother, however, having by her action precluded herself from claiming more than one-third of the sum stipulated in the lease, the appellant should be surcharged with two-thirds only of the $100 per annum; that is, with the gross sum of $533.33, which sum should be paid to Charles W. Sainter and Richard Sainter. There was therefore error in the amount in which the appellant was surcharged, as well as in its distribution.

Decree reversed and record remitted, in order that a decree may be entered, surcharging the appellant with $533.33, and a distribution thereof be made conformably -to this opinion. The costs of this appeal to be paid by the appellees.


author: Agnew, C. J.

text:
    Conawingo Petroleum Refining Company versus Cunningham.
    1. A seller was to deliver oil “buyer’s option at any time from this date to December 31st 1870.” Held, that the seller had the whole of December 31st to perform.
    2. Cleveland v. Sterretfc, 20 P. P. Smith 204, approved.
    January 16th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 98½, to January Term 1874.
    This was an action of assumpsit brought August 5th 1871, by the Conawingo Petroleum Refining Company against Wilson A. Cunfaingham.
    A case stated was filed in the cause which exhibited the following facts:—
    The plaintiffs and defendant entered into a contract as follows, , viz.:—
    “Oil City, Sept. 9th 1870.
    Sold on account of the Conawingo Petroleum Refining Company to Wilson A. Cunningham 1000 barrels good green merchantable crude petroleum, 40 gallons to the barrel, gravity forty to forty-six degrees at a temperature of 60° Fahrenheit, to be delivered buyer’s option at any time from this date to December 31st 1870, in bulk cars at Yenango City. Payment to beunac^e cash on delivery at the rate 13| cents per gallon, in lots as gauged and delivered. S. Bowers, Broker.”
    Written across the face of paper was:—
    “Accepted. W. A. Cunningham, Sept. 10th 1870.”
    On the 24th of October 1870, the parties entered into another contract for 1000 barrels of same kind of petroleum “ to be delivered buyer’s option at any time from the date hereof to December 31st inclusive 1870, in bulk cars at Venango City. Payment to be made cash on delivery at the rate of 11 cents per gallon, in lots as gauged and delivered. Buyer to give the seller 10 days’ notice before delivery. S. Bowers, Broker.”
    Accepted as in the other contract.
    On the 30th of December the defendant was at the place of delivery ready and willing to accept the oil on the contract of September 9th 1870. The plaintiffs made no tender, and on that day had no oil at the place of 'delivery. On the morning of the 31st of December, the defendant having contracts to fill, bought of other persons the amount of oil named in the contract of September, in order to carry out his contracts.
    On the 31st of December 1870, about four o’clock p. M., the plaintiffs at the place of delivery tendered the specific oil on the contract of September. The defendant declined to accept it, as being too late, but offered to take it on the contract of October; the plaintiffs refused to deliver the oil on that contract. On December 31st 1870, oil at-Venango City was worth 10 cents a gallon.
    If the court should be of opinion that the defendant was bound to accept the oil tendered on December 31st, as performance of the contract of September, judgment to be entered for the plaintiffs for $1400. If otherwise, the judgment to be entered for the defendant.
    The court entered judgment for the defendant. This was assigned for error on the removal of the record to the Supreme Court by the plaintiffs.

      T. F. Jenkins and T. R. Fleoek, for plaintiffs in error.
    Jhe construction of a contract should be favorable and liberal: Story on Contracts, § 640; Pugh v. Leeds, 2 Cowper 714; Lysle v. Williams, 15 S. & R. 135. “To” is to be construed as inclusive: Webb v. Fairmaner, 3 M. & W. 473; Benjamin on Sales 563; Arnold’s Marine Ins. 340; Disborough v. Neilson, 3 Johns. Cases 81; Choice v. Mosely, 1 Bailey 136. They cited also Goswiler’s Estate, 2 Penna. R. 200; Mark v. Russell, 4 Wright 372; Duffy v. Ogden, 14 P. F. Smith 240; Brisben v. Wilson, 10 Id. 452; Cleveland v. Sterrett, 20 Id. 204; Sims v. Hampton, 1 S. & R. 411; Browne v. Browne, 3 Id. 496; Cromelien v. Brink, 5 Casey 522; Green’s Appeal, 6 W. & S. 327.

      D. W. Sellers, for defendant in error.
    The time for delivery was between the two dates. “To” is to be construed “by” or “before.” Rankin v. Woodworth, 3 Penna R. 48; In re Ch. J. Lewis, 5 Casey 518; Nichols v. Ramsel, 2 Modern 280 ; Atkins v. Ins. Co., 5 Metcalf 439.
   The opinion of the court was delivered, January 26th 1874, by

Agnew, C. J.

The contract in this case was for the sale of “ one

thousand barrels good green merchantable crude petroleum, forty gallons to the barrel, gravity forty to forty-six degrees, at a temperature of 60° Fahrenheit, to be delivered, buyer’s option, at any time from this date to December 31st 1870, in bulk cars,” &c. Does thé expression to December 31st 1870, include the 31st day?

This question cannot be decided by cases which interpret dubious expressions in laws or rules of court, in order to preserve rights or fulfil special purposes. What we are concerned with here is in ascertaining the meaning of the parties in this particular contract. The preposition to is properly applicable to place or position, while till or until properly applies to time. Yet to is in common parlance and sometimes in legal phraseology, applied to time. It has also various significations indicating toward, to, and into. In regard to time it often indicates a coming or passing into a day, as well as arrival at it. Thus it is said, “ the court adjourned from the 30th to the 31st of December,” or “ from the 1st to the 31st,” or “from day to day.” Nowin each instance we understand that the court will reassemble on the last day. Whenever the expression is from day to day, or from one day to another, we always understand the second day to be included. Again, one says, “ I have to the 31st to do a thing,” or the other says, “you shall have to the 31st to do it.” No one doubts the party can do the thing on the 31st. Such is the time designated for performance. Another expression to be found in this contract affords an illustration, to wit, “gravity from forty to forty-six degrees.” It cannot be doubted if the oil be of a gravity of either forty or forty-six degrees it would fill the contract. Let us expand the language of this writing somewhat.. The words of it are “ to be delivered, buyer’s option, at any time from this date to December 31st 1870.” Then read it thus, the seller saying, “ I will deliver to you one thousand barrels of oil at any time from this date to December 31st 1870, at your option.” Can it be doubted that when the seller says, “ I will deliver at your option,” the buyer may call for the delivery of the oil on the 31st, and the seller would be bound to deliver it. The parties did not refer themselves to “ decided cases,” but had their own meaning, which was that the limit should be the 31st day of December, that the last day of performance. The selection of the last day of the month, and of the year, has some influence in fixing that as the last day of performance, as if the parties had said “ all the month of December, or all this year.” January 1st begins a new period. The time is necessarily mutual, so that if the buyer may demand on the 31st, the seller may deliver on the 31st.

The fact that a subsequent contract adds t'he word “inclusive” after the 31st of December, does not interpret the prior contract, which is without the word “inclusive.” The earlier contract must stand on its own language. The insertion of the word in the second contract may have been due to greater precision, or greater precaution to prevent misconstruction, and yet they may mean the same thing. It does not follow because the latter is expressly “inclusive” the former meant to be “exclusive.” We,therefore, interpret the language as we think the parties intended, to wit, that the buyer could call for the oil in the year 1870, and before the first of January 1871; the word “ to ” having no precise and definite signification to require exclusion of the last day, by reason of its plain grammatical meaning.

The case of Cleveland v'. Sterrett, 20 P. F. Smith 204, was decided in the same spirit of liberal interpretation to reach the evident intent of the parties.

The judgment of the court below is reversed, and judgment is now entered for the plaintiff on the case stated, for the sum of $1400, with interest from July 12th 1873.


text:
    Burk’s Appeal.
    1. A purchaser is entitled to have a contract for sale of land specifically executed so far as the vendor can, and to have an abatement from the purchase-money for any deficiency in the title, quantity or other matter touching the estate.
    2. A husband contracted to sell land, the wife refused to join in the deed, there being no collusion with her husband. Held, that the vendee could not compel specific execution by the husband alone and retain part of the purchase-money as indemnity against the wife’s contingent claim for dower.
    3. A purchaser from a husband takes the risk of the wife joining in the deed or his action against the husband for damages.
    4. Specific execution of an agreement to sell land will not be decreed against a vendor, a married man whose wife refuses to join in the deed, unless the vendee be willing to pay the full purchase-money and accept the deed without the wife.
    5. The purchaser having proposed in open court to accept a deed from the vendor alone and pay the purchase-money, the case was remitted that the court below might make such decree.
    6. Clark v. Seirer, 7 Watts 107; Riesz’s Appeal, 23 P. F. Smith 485, followed.
    January 19th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Delaware county : In Equity: Of January Term 1873, No. 214.
    The bill in this ease was filed February 20th 1871, by William D. H. Serrill against Joseph E. Burk, to compel specific execution of the following contract:—
    “ In consideration of the sum of fifty dollars this day received from William D. H. Serrill, I do hereby promise and agree for myself, my heirs, executors and administrators, to and with the said William D. H. Serrill, to grant and convey to him, his heirs or assigns, in fee simple, by a good and sufficient deed, clear of all encumbrances, all that certain tract of land with the appertenances, containing about fifty acres, situate in Ridley township, Delaware county, and on which I now reside, for the sum of five hundred dollars per acre, subject to ■ measurement, do on my being requested at any time within sixty days from the date hereof, hereby agree to convey the said premises to the said William D. IT. Serrill. The conditions are (if they should be taken) two-thirds cash, the remaining one-third bond and mortgage, secured on the premises, payable in one year.
    “Witness my hand and seal this 14th day of July, A. D. 1870.
    Joseph E. Burk.” [Seal].
    The plaintiff averred the payment of the $50, the consideration of the contract; due notice to defendant that he elected to take the land according to the terms of the contract, his tender of two-thirds of the. purchase-money, and of a bond and mortgage for the remaining third; the refusal of defendant to accept the money and the securities, and execute the deed.
    The defendant answered:—
    1. In the month of August 1870, he informed the plaintiff personally, that he, the defendant, declined specifically to perform the said contract.
    2. At the time of the execution of the paper of July 14th 1870, the defendant was a married man, and had a wife, Rebecca T. Burk, living, of which fact the plaintiff was then aware. She is still living, and declines to join in the execution of a deed for the said real estate. He cannot therefore convey the same clear of encumbrances.
    3. Ann P. Horne, widow of Aaron Morton, who was a former owner of the said real estate, is entitled to the interest of about $2300, annually, during her life, and the principal is at her death payable to the heirs of the said Aaron Morton, which said sum is a lien on the said real estate, and cannot be discharged during the life of the said widow.
    A replication was filed, and A. Lewis Smith, Esq., appointed master. He found the facts substantially as set out "in the bill and answer. He further found:—
    * * * “On August 18th 1870, the plaintiff called upon the defendant for his title papers, in order to make an examination of the title, and prepare a deed for the premises. The defendant at first temporized, stating that the papers were in the possession of his attorney at Media, but refused to give an order for them, and finally told plaintiff that he was not going to convey the property, as his wife would not sign the deed, and expressed a willingness to pay back the fifty dollars mentioned in the contract. This was the first notice which plaintiff received that defendant did not intend to convey. * * *
    “ On the day the contract was signed, the defendant informed his wife of what he had done, and she thereupon declared that she would not sign the deed, and has continued to maintain that position to the present time. The defendant himself, in his testimony, states that his unwillingness to execute a deed to the plaintiff has been, and is, because his wife refuses to join in its execution, and that if she were now willing to execute it, he would be willing to execute it also, although in point of fact, he has never directly asked her to join him in it. No evidence, however, was given to satisfy the master that Mrs. Burk withholds her consent through collusion with her husband. * * *
    “At the hearing before the master, the plaintiff asked for specific performance of the contract to the extent that the defendant was able to perform it, with compensation for the encumbrance of the dower of Aaron Morton’s widow, and indemnity against the estate of the wife of the defendant.
    “ The defendant contended that as it would be impossible to'carry out the contract by reason (1st), of the dower of Morton’s widow in the premises, and (2d), of the refusal of his wife to join, the effect of such a decree as asked for would be: 1. That the court would be making a new contract between the parties, and — 2. That it would be attempting to enforce a contract in which there was no mutuality^ — for it was freely admitted that the defendant could not have enforced this contract against the plaintiff.
    “ The question of making compensation for the dower of Morton’s widow was not seriously contested, and it seems that while it is questionable whether the plaintiff could have been compelled to take the property with this encumbrance, even with compensation, it is well established that he might compel a conveyance, and have the allowance out of the purchase-money. * * *
    “ The main and real question raised before the master, was whether in the case of a wife’s refusal to join in a deed of her bus- ‘ band’s land, the purchaser may have specific performance so far as the husband is concerned, with indemnity — which is a species of compensation adapted to cases of contingent encumbrances — against the dower of the wife.” * * *
    After an exhaustive examination and discussion of the authorities, the master, reported, “ That the defendant, Joseph E. Burk, should be decreed to convey to the plaintiff such title as he can convey, and that the plaintiff be indemnified out of the purchase-, money against the dower of said defendant’s wife.” * * *
    The defendant filed exceptions to the report.

      The court (Butler, P. J.) confirmed the report and made the following decree:—
    “ That the defendant, Joseph E. Burk, within thirty days from the date of this decree, execute and deliver a deed of conveyance to the plaintiff, in fee simple, of the real estate, &c.
    “ 2. That the plaintiff, upon receiving such deed, pay to the defendant, Joseph E. Burk, two-thirds of the purchase-money, deducting so much of the money due to the heirs of Aaron Morton, deceased, as shall not at that time be paid off.
    “ 3. That at the same time, the plaintiff execute and deliver his bond and mortgage of the said realty, to the said Joseph E. Burk, for the-other one-third of the purchase-money aforesaid, conditioned as follows:—
    “ Eor the payment of the interest thereof, half-yearly, to the said Joseph E. Burk, during the coverture of Rebecca T. Burk, the present wife of the defendant, or until such time during said coverture, as the dower of the defendant’s said wife be duly released to the plaintiff, his heirs or assigns. .
    ■“ For the payment of the principal to the said Joseph E. Burk, upon such release of his said wife’s dower in the said premises, or upon her death during his lifetime, and for the payment of said principal and accrued interest to the executors, administrators or assigns of the said defendant upon his said wife surviving him, and thereafter executing such release of her dower as aforesaid, after first deducting thereout whatever sums, if any, the plaintiff, his heirs or assigns, shall have then paid for any arrears of such dower up to the time of such release.
    “In case the said wife of the defendant shall survive him and claim and receive her dower or thirds as his -widow in the said realty, then the said bond and mortgage, and the debt or moneys thereby secured, to be subject to the direction and further order of the court for the further indemnity of the plaintiff, his heirs and assigns, or for his or their compensation in respect to such dower as the court shall deem proper, and any residue thereof not used for such purpose to be paid to the executors, administrators or assigns of the said Joseph E. Burk.”
    The defendant appealed to the Supreme Court, and assigned the decree for error.

      W. Darlington, for appellant.
    Equity will not enforce a contract which involves a wife’s volition in regard to her property: Brightly’s Eq., sect. 222 ; Emery v. Wase, 8 Ves. 505; Howel v. George, 1 Mad. 16 ; Clark v. Seirer, 7 Watts 110; Riddlesberger v. Mentzer, Id. 142; Shurtz v. Thomas, 8 Barr 363; Fisher v. Worrall, 5 W. & S. 486; Bitner v. Brough, 1 Jones 128; Hanna v. Phillips, 1 Grant 253; Weller v. Weyand, 2 Id. 103; Corson v. Mulvany, 13 Wright 88; Tatham v. Lewis, 15 P. F. Smith 65. As a general principle, chancery will not compel the specific performance of a contract in favor of a vendee, unless the vendor could compel him to convey. It must be mutually binding: Brightly, sect. 216, and cases there cited. Specific performance will not be decreed if the effect is a substantial deviation from the contract: Halsey v. Grant, 13 Ves. 73. No compensation is given for a defect which was obvious to the senses, or one of which the vendee was in fact apprised: Clark v. Seirer, 7 Watts 107. If a man chooses to contract for the estate of a married woman, or an estate subject to dower, he knows the property is hers, altogether, or to a given extent. Courts cannot compel indemnity to be given. Where any deficiency in certain events arises as to the extent or duration of an interest in an estate contracted to be sold, not admitting of compensation, equity can neither compel a purchaser to take, nor a vendor to give indemnity: Balmano v. Lumley, 1 Ves. & Bea. 225; Paton v. Brebner, 1 Bligh 66 ; Powell v. South Wales Railway Co., 1 Jur. N. S. 773; Aylett v. Ashton, 1 Myl. & C. 105; Bainbridge v. Kennaird, 32 Beav. 396.

      J. B. Townsend, for appellee.
    This form of decree is not one which in letter or spirit, injuriously affects the wife. She is left with her rights unaffected. It is warranted by the precedents: Wilson v. Williams, 3 Jurist, N. S. 810; Young v. Paul, 2 Stockt. Ch. 401; Fry on Specific Perf., s. 810; Law Library, vol. 100, p. 236 ; Milligan v. Cooke, 16 Ves. 1; Halsey v. Grant, 13 Id. 73; Clark v. Seirer, 7 Watts 107.
   The opinion of the court was delivered, March 23d 1874, by

Mercur, J.

This bill was filed to enforce performance of an agreement in writing made by the appellant, to sell and convey to the appellee, certain lands in fee simple, clear of all encumbrances. It appears there was an encumbrance of a small sum on the land, in favor of the widow and heirs of a former owner. This was unknown to the appellee at the time the contract was executed. The encumbrance still remains.

The general rule is well settled, that the purchaser, if he chooses, is entitled to have the contract specifically performed so far as the vendor can perform it; and to have an abatement out of the purchase-money, or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate: Story’s Eq., sect. 779. This encumbrance comes within the general rule. So far then as the decree of the court below* directed the amount of that encumbrance to be deducted from the contract price, we discover no error.

The important question in the case arises under other facts. It appears that the appellant, at the time of the execution of the contract, had a wife, which fact was then known to the appellee; that she is still living, and declines to join in the execution of a deed for a conveyance of the land. The master reported, and the court below decreed, that the appellant execute a deed in fee simple of the land, but that one-third of the purchase-money be withheld until the death of the wife, or until her right of dower should be released.

Thus the question is presented whether, in case of the refusal of a wife to join in a deed with her husband conveying his land, in pursuance of his contract, the purchaser may have specific performance, so far as the husband is concerned, and be indemnified against the contingent claim, of dower of his wife, by retaining a portion of the purchase-money.

When the contract was executed by the appellant, it was suggested to him that his wife should also sign it. He replied in substance that it was unnecessary, as she was a woman who never meddled with his business. That she allowed him to do as he pleased in such matters, and would do whatever he should say. Afterwards, upon the same day, the appellant informed his wife what he had done. She thereupon declared she would not sign the deed, and has continued to persist in that refus'al. The master has found that no evidence was given to satisfy hint hat the wife withheld her consent through collusion with her husi .nd.

The wife then has not said or done anything whic\ compels her to unite in the fulfilment of her husband’s contract. \ 5he has not executed and duly acknowledged any written instrum' t by which she is bound, as the wife had done in Dankel v. Hunter and Wife, 11 P. F. Smith 382. Nothing less than that would bind her: Glidden v. Strupler, 2 P. F. Smith 400. The letter and policy of the law forbid a wife to convey her interest in land otherwise than by the exercise of her own free and untrammelled will. A purchaser by contract from her husband, must be presumed to know this essential requisite, and, therefore, that he takes the risk of the wife’s uniting in the deed, or of his common-law right of action for damages against the husband. It may be answered that the ap- ” ” .e does not ask for a decree that the wife join in the deed; but only that one-third of the purchase-money be retained to indemnify the vendee against her contingent claim, and that, therefore, her free will is not constrained.

The specific performance of a contract in equity is of grace, not of right. It rests in the sound discretion of the chancellor. In an action of ejectment by a vendee against a vendor, to compel the specific performance of a contract for the sale of land, the plaintiff cannot recover, if the defendant be a married man and his wife refuses to sign the deed: Clark v. Seirer, 7 Watts 107; Hanna v. Phillips, 1 Grant 254; Weller v. Weyard, 2 Grant 103.

It was said by Gibson, C. J., in Clark v. Seirer, supra, “it seems to be at last settled on principles of policy and humanity, that equity stirs not to enforce a contract which involves in it a wife’s volition in regard to her property, and it seems strange to us now, that courts of chancery should ever have hesitated about it. Contrary to the benign spirit of the common law, the avowed purpose of process of contempt against the husband, is to extort a conveyance from her affection, or from her fear.”

It must now be considered the settled law of this Commonwealth, that specific performance of an agreement to sell land, will not be decreed against a vendor who is a married man, and whose wife refuses to join in the conveyance so as to bar her dower, unless the vendee is willing to pay the full purchase-money, and accept the deed of the vendor without his wife joining therein: Riesz’s Appeal, 23 P. F. Smith 485. In giving the opinion of the court in that ease, it was well said by Mr. Justice Sharswood, “ The same sound policy whieh forbids a decree for the execution of a deed by the husband, to be enforced by his imprisonment, if he cannot obey, prevents any decree looking to compensation, abatement or indemnity.”

The decree of the court below must therefore be reversed.

Inasmuch, however, as upon the argument the counsel for the appellee expressed a desire to accept a deed from the appellant alone, rather than have no decree in his favor, we will send the case back in order that such a decree may be made.

Decree reversed, and record remitted, that a decree may be entered conformably to this opinion, and the appellee is directed to pay the costs of this appeal.


text:
    Zimmerman versus Streeper et al., Executors of Streeper.
    1. Streeper held a bond against Zimmerman ; he endorsed on it, “ I request my executors to give this bond to Anna for her great kindness she has shown to me and her grandmother,” this was signed and sealed: after it was written, “ This is not to interfere with what I will to her, this she is to have beside that.” Anna was the granddaughter of the obligee and the wife of the obligof. The bond was not delivered to Anna but remained in the oblig^s_pnssession with his other securities till his death. Held, that the * bond did not pass to Anna.
    2. The endorsement indicated a prospective gift; there being no delivery it was without operation.
    3. Wentz v• De Haven, 1 S. & R. 316, distinguished.
    January 19th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1873, No. 270.
    In the court below, Leonard Streeper, John B. Meyer and Caroline Dager, executors, &c-, of George Streeper, deceased, brought an action of debt against Lorenzo D. Zimmerman ; the writ was issued April 8th 1872.
    On the 3d of January 1873, a case stated was filed, viz.: “ The above-stated suit is brought to recover the amount of a bond with interest, executed by the defendant to George Streeper, dated the first day of April, A. D. 1864, conditioned for the payment of the sum of five hundred dollars to the said George Streeper, April 1st 1865, with interest at the rate of five per cent, per annum. On the bond, in the handwriting of George Streeper, the obligee, is the following endorsement:—
    “ ‘ July 22d 1864. I request my executors to give this bond to Anna Meriah Zimmerman for her grate kindness that she shown to me and her grandmother.” George Streeper, [l. s.]
    George Streeper.
    this is not to interfar with what i will to her this she is to have beside that. George Streeper.’
    “ This bond, so endorsed, was never delivered to the said Maria Zimmerman, nor to the said defendant, but remained in the possession of the said testator, was so in his possession at the time of his decease, and was found by his executors among his other papers and securities. George Streeper died September 1 Oth 1864, leaving a solvent and ample estate.
    “ On the third day of August, a. d. 1864, George Streeper made his last will, in which, after providing for the payment of his debts, &c., and for his widow a life estate in all his property, he devised a tract of land to his son Leonard, subject to the payment of certain legacies, two houses and certain lots in Norristown to his daughters Caroline Dager and Margaret Moyer, and twenty acres of land in Springfield township to Leonard Streeper, Caroline Dager, and Margaret Moyer. The residue of his estate he bequeathed to the said Caroline Dager and Margaret Moyer, in the proportions in said will mentioned, and of his will made the plaintiffs the executors, who on the 17th of September, A. d. 1864, proved the same, and letters testamentary thereon were issued to them.
    “ Two of the executors, to wit, Leonard Streeper and Caroline Dager, have signed the following paper:—
    “ ‘ B. E. Chain, Esq.
    “ ‘ Please hand over to Anna Maria Zimmerman the bond assigned by George Streeper in his life-time to her, which he held against Lorenzo D. Zimmermann for $500. Caroline Dager.
    Executrix of the Will of George Streeper, deceased.
    Norristown, Pa., Nov. 27th 1871.
    Leonard A. Streeper,
    Executor of the last Will of George Streeper, deceased.”

      “ The following are facts in the case if considered legal evidence by the court, and if admitted to be considered as under exceptions on the part of the plaintiff. If rejected, such rejection to be considered as under exception by the defendant.
    “ May 12th 1863, George Streeper, the testator and obligee in the bond sued upon, wrote to Lorenzo D. Zimmerman, who is the defendant and the husband of Anna Maria Zimmerman, in whose favor said endorsements on said bond are made, as follows :—
    “ ‘ Whitemarsh, May 12th 1863.
    “ ‘ My friend Lorenzo Zimmerman i have five hundred dollars to spare and if you stand in need of it you can have it, i have received more money than i expected to receive, if you do not want it may be some of your friends would want it, you can have it on a plain bond i shant want it very soon again.
    Youi’s, most respectfully,
    George Streeper.’
    “ The testator frequently expressed to defendant that the bond was to be a gift through defendant to his wife Maria, for her kind attentions during life. He was taken sick prior to July 22d 1864, and never recovered. Maria Zimmerman, who is named in said- endorsement on the bond in question, is the wife of the defendant, and is the granddaughter of the testator, George Streeper, the obligee in the bond, and is a legatee under his will, and had with her mother resided with the testator for a long time and until her marriage with the said defendant. No claim was made for payment of the money due on the said bond until the year 1871, after the death of the said testator’s widow.
    “ If, upon the foregoing facts, the plaintiffs are entitled to recover, then judgment to be entered in their favor for the amount of the' principal of said bond, with interest thereon, according to law, from April 1st 1864, to date of entry of judgment. If of a contrary opinion, then judgment for defendant.”
    The court (Ross, P. J.), after referring to the facts, delivered the following opinion: * * *
    “ Under these facts can a recovery be had upon the bond ? It must be remembered that the endorsement is not intended to release the defendant, the obligor, from his liability upon the bond. If it has any effect whatever it is to make a gift of the bond to Mrs. Zimmerman. This fact must not be overlooked or disregarded, for it underlies the case and determines the law which governs the facts in the case stated. To constitute a valid gift inter vivos certain essentials are requisite, and the first inquiry that presents itself is whether the endorsement on the bond, undelivered to Mrs. Zimmerman, constituted a valid gift.

      “ To determine the validity of a gift, its subject-matter must be considered. If capable of manucaptiou it must be actually or constructively delivered. If it be not, then it is still executory, and being without consideration, is bad either as a gift inter vivos or a donatio causa mortis: Yard v. Patton, 1 Harris 278; Kennedy v. Ware, 1 Barr 445 ; Whitehall v. Wilson, 3 Penna. 405 ; Jones v. Drake, 6 Phila. R. 416; Painter’s Estate, 6 Wright 156, in note; Cressman’s Appeal, 6 Id. 147. A chose in action may, however, pass by assignment, for the debt itself cannot be delivered, and the only delivery that can be had must be of this character. A gift must be executed, for if it remains executory, and there be no consideration, it is void: Kennedy v. Ware, supra. In order to execute a gift of a chose in action, there must be a delivery of the evidence of the debt, or an assignment of it. ‘ A gift/ says C. J. Gibson, in re Campbell’s Estate, 7 Barr 101, ‘is a contract executed, and as the act of execution is the delivery of possession, it is of the essence of the title. It is the consummation of the contract, which without it would be no more than a contract to give, and without efficacy for the want of consideration. If made on a sufficient consideration, it would be a binding agreement; but then the nature of the contract would be changed, and there still would be no gift. The gift of a bond, note, or any other chattel, therefore, cannot be made'by words in futuro, or by words in prcesenti, unaccompanied by such delivery of possession as makes the disposal of the thing irrevocable.’ This doctrine is cited and approved in Painter’s Estate, supra.

    “ So strictly is the validity of a gift made dependent upon its execution that it was ruled in Pennington v. Gitting, 2 Gill and Johns. 209, that an intended gift by a parent to a child of certain bank stock, of which the certificate was handed to the contemplated donee, but no transfer of it was made on the books of the bank, which was the recognised mode of passing an interest in the shares, was executory, and could not be enforced. To the same purport are the eases of Duffield v. Elwes, 1 Bligh R. 529; Fortes v. Barret, 3 Mylne & Keen 36; Lonsdale v. Lonsdale, 5 Casey 407; Adams’s Eq. 234, note.
    “ It is clear from these authorities that unless there be a delivery, either of the chose in action or the assignment of it, to the donee, the gift is not executed, and the donee acquires no right under it.
    “ But it is said that while the undelivered bond, with its endorsement, may not constitute a gift to the donee; yet it is in effect a declaration of trust which converts the executors into trustees of this fund for her benefit. It is said that an equitable assignment of a chose in action is a declaration of trust, with an agreement to permit the assignee to sue in the assignor’s name: Butler’s Coke Litt. 232, b. note 1. But how can this undelivered endorsement be termed an assignment ? It never passed out of the control of the testator. It never conferred a complete and present right upon the assignee. It would unquestionably have been competent for the testator at any time after he made these endorsements to have, cancelled them. His power over the endorsements, up to the hour of his death, was complete and ample; and up to that hour the donee had acquired no rights. Yet the converse of all this'is essential to constitute an assignment. Vide 3 Lead. Eq. Cases, H. & W.’s notes 361, where it is said, It is necessary, in order to constitute an assignment either legal or equitable, that there should be such an actual or constructive appropriation of the subject-matter assigned as to confer a complete and present right in the assignee, even when the circumstances do not admit of its immediate exercise.' * * * The characteristic of an assignment is the relinquishment of all legal or equitable interest by the assignor, and the creation of a new and independent right in the assignee Rogers v. Horsach, 18 Wendell 319; Cowperthwaite v. Sheffield, 3 Comstock 243. ‘ If the donor has perfected his gift in the way in which he intended, so that there is nothing left for him to do, and nothing whieh he has authority to countermand, the donee’s right is enforced as a trust, and the consideration is immaterial ’: Adams’ Eq. 233. A delivery, then, of the bond, with the endorsement, was essential to vest rights in the donee. Until that was effected the testator had done nothing to relinquish his legal or equitable interest. The whole matter was yet in his power and subject to his control. He could have cancelled the endorsements without prejudice to any legal or equitable right of his intended beneficiary. It is well settled that nothing can take effect as an assignment which does not manifest an intention to relinquish the right of dominion on the one hand and create it on the other : 3 Leading Eq. Ca. 363; Dickinson v. Phillips, 1 Barb. 454; Rogers v. Horsach, supra; Hall v. Jackson, 20 Pick. 194. This doctrine is thoroughly sustained by our own authorities. In Lonsdale v. Lonsdale, 5 Casey 407, it was ruled that an assignment of choses in action under seal, without valuable consideration, designed to take effect at the death of the assignor, where such choses in action were not delivered until after the assignor had become insane, passed no title to the assignee. This would seem to rule the point now under consideration. The same question was ruled by Judge Chapman in Jones v. Drake, 6 Phila. R. 417, in an able and elaborate opinion. Vide also Grant v. Levan, 4 Barr 324; Critchfield v. Critchfield, 12 Harris; Plumstead’s App., 4 S. & R. 545.
    “If then this endorsement was without consideration, not having been delivered, it passes no title to the donee. In order to avail herself of it she must show it to have been made upon a sufficient consideration. The next inquiry, therefore, is, was the endorsement made upon a sufficient consideration ?
    “ It is said that the seal imports a consideration, and that, from the sealing of the endorsement, the law presumes it to have been made upon sufficient consideration. ‘It is not now to be doubted,’ says Bell, J., in Yard v. Patton, 1 Harris 285, ‘ that though a parol unexecuted promise to make a gift inter vivos without consideration, is void, an agreement under seal to do so may be enforced as a legal obligation.’ Vide Campbell’s Estate, 7 Barr 100 ; Mack’s App., 18 P. F. Smith 283; Shink v. Endress, 3 W. & S. 256; 1 Johns. Ch. Rep. 329.
    “ But in all these cases it will be found that the sealed instrument was delivered to the donees. If delivery had been proved in this case, I should, in consequence of the endorsement being under seal, have no difficulty in concluding that the seal imported a sufficient consideration. But as there was no delivery, the fact that it is under seal does not establish the existence of a consideration. This is squarely ruled in Lonsdale v. Lonsdale, and that authority renders further elaboration on this point superfluous.
    “ But failing the import of consideration derived from the attachment of the seal, how or by what means do the facts in the case establish it ? The endorsement by its own terms purports to be made ‘for her grate kindness that she shown to me and her grandmother.’ This expression excludes the idea that any valuable consideration was the moving cause for the endorsement. Kindness and filial devotion are not the subjects of a quantum meruit. The natural love and affection of a grandparent for his grandchild, when that grandchild had been attentive and affectionate to him and his wife in their declining years, would seem to have induced the testator to make the endorsement upon the bond. But these are not sufficient considerations upon which to enforce a gift inter vivos. Eor this there is abundant authority : Yard v. Patton, Kennedy v. Ware, Whitehill v. Wilson, supra; Short v. Shultz, 7 Watts 207; Mack’s Appeal, supra; Lyon v. Marclay, 1 Watts 271; Campbell’s Est., supra; 18 Johns. 145.
    “ The only adjudicated case in Pennsylvania, which intimated a contrary doctrine, was Wentz v. De Haven, 1 S. & R. 312, but that was upon a dictum of Lord Mansfield. But upon that point it is distinctly overruled in Kennedy v. Ware and Campbell’s Est., supra, and can be regarded as no authority.
    “ But it is said that there was a moral obligation which will support the endorsement by affording a sufficient consideration. A moral obligation which will support a promise to pay or to give has a distinct legal character. A moral obligation is not a vague or undefined claim arising from nearness of relationship, but it is an imperative duty which would be enforced at law, or in equity, were it not for some positive rule, which, with a view to a general benefit, exempts the party in that particular instance from legal liability : Kennedy v. Ware, supra. Its nature is well illustrated in the case of a contract debt barred by the Statute of Limitations, the collection of which cannot be enforced by legal remedies, but which will support a subsequent promise to pay the debt thus tolled by the statute. Where does the ease stated show any imperative duty on the part of the testator to Mrs. Zimmerman ? She must show, in order to enforce the endorsement, that there was a consideration or its equivalent in moral obligation; but nothing is established by the ease stated except the executory gift. It is simply a case of an unexecuted intention to give at a future period, and is, therefore, under the authorities cited, void.
    “ It was not seriously contended upon the argument that the endorsements should be considered in the light of testamentary disposition, nor could that view be maintained. A testator can execute but one will which will speak after his decease, and this testator made his will sometime after the endorsement had been executed.
    “ The fact that two of the executors are willing to surrender the bond is not material; they cannot release assets of the estate, as executors ; after the fund comes into their hands as legatees, they may in that character act as they believe justice and equity require.
    “It is apparent from what has been said that the plaintiffs can recover upon these grounds.
    “It may be questionable whether the defendant could have availed himself of the defence upon which the recovery of the bond was resisted.
    “ The bond was never cancelled, nor is it pretended that the testator made a gift of it to him. He unquestionably owes the sum secured by it, and the question is not as to his liability.to pay, but as to whom the payment is to be made. I have, however, decided the main question in order that future litigation may be avoided.
    “ The whole case is well summed up by C. J. Gibson in Campbell’s Estate, supra: “ All agree that the possession was not parted with, and it cannot be disputed that his intentions might be abandoned and his directions countermanded. It was his property while he lived, and as the direction was a testamentary one, it became inoperative at his death. It was a mere authority which expired with him.
    “And now, February 1st 1873, judgment is directed to bo entered upon the case stated in favor of the plaintiffs for the principal of the said bond, with interest thereon at five per cent, from its date to the date of the institution of this action, and at six per cent, after that date.”
    The defendant took a writ of error, and assigned for error that the court erred in entering judgment for the plaintiffs on the case stated.

      Gr. IY. Oorson, for the plaintiff in error.
    The endorsement was a family settlement, which is looked on with favor by the courts: Cressman’s Appeal, 6 Wright 155 ; 2 Spence’s Equity 909; Ellison v. Ellison, 1 White & Tudor’s Leading Eq. Cases 324; Barton v. Wells, 5 Wharton 227; Perkins v. Gay, 3 S. & R. 331; Cann v. Cann, 1 P. Wms. 727 ; Stapilton v. Stapilton, 1 Atkyns 2; Stockley v. Stockley, 1 Vesey & Beames 29; Cary v. Cary, 1 Ves. 19; 1 Story’s Eq. 1257; Jourdan v. Jourdan, 9. S. & R. 276; Lies v. Stub, 6 Watts 48. The disposition of the bond by the endorsement is acquiesced in by all interested, including two out of three of the executors, and the decedent’s estate is solvent: 2 Blackstone 510; Heron v. Hoffner, 3 Rawle 396. The seal to the endorsement imported a consideration: Bunn v. Winthrop, 1 Johns. Ch. 329, 1 Bae. Abr. 165, “ Agreement” F.; Wentz v. Dehaven, 1 S. & R. 316; Martin v. Mowlin, 2 Burrows 969; Coe v. Hutton, 1 S. & R. 408; Sherk v. Endress, 3 W. & S. 255 ; Ackla v. Ackla, 6 Barr 229; Yard v. Patton, 1 Harris 278; Drysdale’s Appeal, 2 Id. 531; Mack’s Appeal, 18 P. F. Smith 231. Streeper wrote the assignment in his last illness; it is donatio causa mortis : Gourley v. Linsenbigler, 1 P. F. Smith 347. The deed was complete, for the accident of his death alone prevented delivery: Weckett v. Raley, 2 Brown P. C. 386; Sibthorp v. Moxom, 3 Atk. 580; Eden v. Smyth, 5 Vesey 530; Gardner v. Gardner, 22 Wend. 535; 2 Story Eq. Jur., sect. 705, 706. The intention of the obligee is to control: Watters v. Bredin, 20 P. F. Smith 237; Vance v. Nogle, Id. 180; Walker v. Coover, 15 Id. 430; Yarnall’s Appeal, 20 Id. 335. A construction of a will long acquiesced in estops: Hagerty v. Albright, 2 P. F. Smith 274; Bigelow on Estoppel, ch. 14-16; Follmer’s Appeal, 1 Wright 124.

      B. F. Chain, for defendants in error.
   Judgment was entered in the Supreme Court January 26th 1874.

Per Curiam.

We can discover in this case, nothing more than an intent on part of George Streeper to authorize his executors to deliver the bond in question, to the wife of the debtor in the bond after his- death. There was no delivery; and no intention to deliver by George Streeper himself in his lifetime. The endorsement of the bond cannot operate as a release as in Wentz v. De Haven, for there, the creditor actually delivered the bond to-the, debtor himself. The writing is not a trust nor assignment,' but simply an intended or prospective gift, to be carried into effect by his executors. In the main we agree with the opinion of Judge Ross. ' Judgment affirmed.