text:
    Appeal of the Boards of Missions of the United Presbyterian Church.
    1. Where it is uncertain whether a testator disposed of all his estate by - will, his intention must be ascertained by a consideration of the whole instrument.
    2. Where from all the provisions of a will there was a manifest continuing disposition on the part of the testator to dispose of all his estate and to increase rather than diminish the residuary fund, it would appear that testator did not intend to die intestate as to any portion of his property, real or personal, and this intention must govern unless there is something in the devise itself which compels a different conclusion, for it is well settled that a will must be so construed as to avoid a partial intestacy, unless the contrary is unavoidable.
    3. The residuary clause of the testator’s will directed the executors to sell all the rest and residue of testator’s property, real, personal and mixed, and bequeathed the proceeds of such sale to a certain legatee. Held, that this provision included money which had accrued as dividends on bank stocks; that said provision was not a description of the property bequeathed, or a limitation or qualification to property which was the subject of sale.
    4. The testator authorized his executors to transfer bank stock “ above specially bequeathed to the person, to whom it is bequeathed, and none others.” Held, that the testator did not intend thereby to abridge the rights of these legatees, but rather to emphasize the absolute character of the gifts, and to indicate that they should vest in them to the exclusion of others, and thus being made to vest in the immediate donees upon their deaths they did not lapse but passed to their heirs.
    October 31st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Orphans’ Court of Indiana county: Of October and November Term 1879, No. 353.
    Appeal by the Boards of Home and Foreign Missions of the United Presbyterian Church of North America from the decree of the court in the matter of the distribution of the fund in the hands of Robert Pattison, executor of Archibald Stewart, deceased.
    Archibald Stewart died on the 5th of April 1877, unmarried, aged about ninety years, and leaving a will dated September 24th 1857, with two codicils, dated respectively December 7th 1861 and August 26th 1864. The testator bequeathed a number of specific legacies, among which were the following: To his brothers, John and William Stewart, fifty shares each of the stock of the Bank of Pittsburgh; to his niece, Floranna Thompson, twenty shares of said stock, and to another niece, Eliza McQuilken, ten shares. Referring to these and other specific legacies the testator directed that “my said executors are hereby authorized to transfer my stock in the Bank of Pittsburgh, above specifically bequeathed, to the persons to whom the same is bequeathed “and none others.” The will further provided :—

      “ The rest and residue of my property, real, personal and mixed, I do direct my executors to sell and dispose of, and execute and deliver good and sufficient deeds of conveyance therefor, for such as may be real estate, and the proceeds of such sales I do hereby devise and bequeath to the Home and Foreign Missionary Board of the Associate Reformed Church in the United States of America, by whatsoever name or style the same may be known or incorporated by“”
    The codicil of December 7th 1861 contained this provision:—
    “ Whereas since the making of my said foregoing last will and testament, a union has been made between the Associate Reformed Church and the Associate Church in the United States, forming by such union a church under the name and style of the United Presbyterian Church, now I do by this codicil declare and direct that the bequest in my said will given to the Home and Foreign Missionary Board of the Associate Reformed Church" in the United States of America, shall 'be transferred, and I do hereby bequeath and transfer the said bequest and the money thereby bequeathed, to the Home and Foreign Missionary Board of the United Presbyterian Church aforesaid, by whatsoever name or style the said board may be known or incorporated. In witness whereof I have hereto set my hand and seal the day and year last above written. And I do hereby republish my said last will and testament, and do declare and direct that any real estate I may have purchased or become seised of since the making of said will, shall pass under the same as though I had been seised thereof at the making of said will.”
    And by the codicil of August 26th 1864 the testator declared, “ I do hereby ratify and republish the foregoing last will and testament and codicil thereto, made December 7th 1861.”
    The will was probated in April 1877, and letters testamentary granted to Robert Pattison, the surviving executor, who, on November 1st 1877, filed an account showing a balance in his hands of $119,563.21, which, deducting expenses, left $114,908.05 for distribution. The auditor awarded to the legatees above mentioned the shares of stock bequeathed to them with the accrued dividends, and to the Boards of Home and Foreign Missions of the United Presbyterian Church of North America, the remaining shares of stock in the several banks mentioned in said will, and embraced in executor’s account, with the accrued dividends since the death of the said testator; the accrued dividends on the stock in the First National Bank of Indiana; the lapsed legacy of Archibald W. Stewart ; the appraised value of the household goods, and the unlifted dividends in the said banks and the balance on general account with the Bank of Pittsburgh at death of testator, after debts, expenses of settling estate, and expenses of audit, amounting to $33,928.94.
    The auditor’s report having been presented to the court, exceptions were filed on behalf of certain of the heirs-at-law, to the allowance by the auditor of the sum of $34,457.72 to the Boards
    Home and Foreign Missions of the United Presbyterian Church of North America, and the legacy to Archibald W. Stewart as lapsed, &c.
    In ruling upon these exceptions, the court, Blair, P. J., inter alia, said:—
    “It is clear that the Home and Foreign Missions are entitled under the residuary clause of this will, to the money arising from the sale of the stocks in the three national banks, and from the sale of the remaining 270 shares of the stock of the Bank of Pittsburgh. It is not denied that they will be entitled also to the dividends declared on these stocks respectively since the testator’s death. They will also be entitled to the proceeds of any other property, peal or personal, he may have had at the time of his death, which is ordinarily the subject of sale. But we discover no words in it, taken by themselves, or in connection with the whole will, that would warrant us in giving them that description of property which consists of money. Had testator devised and bequeathed to them all the rest and residue of his property, real, personal and mixed, or had he simply given them all the residue of his property, this would have included his money, especially when taken in connection with the introductory words of the will evincive of an intent to dispose of his whole estate. It was quite competent and easy for him to do this, if he so intended. Instead, however, of bestowing the residue of his entire estate, he limits his bounty to a p'art of it, by directing his executors first to sell the rest and residue, and then bequeathing to the Home and Foreign Missions the proceeds of such sales. To exchange or sell money, or what is regarded and treated as such, would but bring money in return, and we cannot suppose the testator to have directed a proceeding so irrational and useless. The residue he described was not general.
    “ It does not purport to dispose of everything he might have when he died, undisposed of by previous provisions'of the will. It disposes only of a particular residue. The direction to sell is not confined to the real estate. It applies as clearly to the personal as to the real, and it is greatly to the interest of the boards of missions that it does, because, while he may have owned other real estate in addition to what is specifically devised to William Stewart and Mary Pattison, the testimony, now before us, does not disclose the fact. Then, while he distinguishes between the real and personal property, by authorizing his executors to make deeds for such as may be real estate, he immediately returned to the direction to sell both real and personal and devises and bequeaths the proceeds of such sales. This language seems guarded and is free from ambiguity. If we dare suppose, in the face of plain language to the contrary, that he meant to give the residue of his personal property of every description, but that his meaning with respect to that kind of property was obscured by accidentally incorporating in the same sentence an authority to his executors to sell his real estate, and execute conveyances for the same, we might expect to find some correction of this important clause of the will, when he came to make the first codicil. But the codicil does not enlarge the residue. It rather re-afiSrms the limited character stamped upon it previously. He therein transfers the bequest given in the will, and ■ — not money generally — but the money thereby bequeathed. To say that the legatee shall have money, not within the obvious meaning of the terms used, would be to make a will for the testator, rather than to carry out the one he has made for himself. We must be careful to avoid this.
    “ That part of the report of the auditor awarding the sum of $33,928.94, being money or cash owned by testator at his death, to the Boards of Home and Foreign Missions of the United Presbyterian Church, is set aside, and the same is directed to be distributed among the next of kin of the testator, according to law.”
    From this decree the Boards of Missions took this appeal.

      A. W. Taylor and J. N. Banks, for appellants.
    We contend that Mr. Stewart did not die intestate as to any part of his estate, but that the residuary clause in his will is sufficiently broad and comprehensive to cover the entire residue of his estate, including the money in bank on deposit and the unlifted dividends on his bank stock at the time of his death.
    If a testator directs all the rest of his property, real, personal and mixed, to be sold and applied as he directs, and a part of that property happens to be money, or credit on the books of a bank, is this alleged inconsistency with the custom of the country to override all the other provisions in his will, the evident general intent and surrounding circumstances, and is intestacy to be declared when the testator himself never contemplated it? No doubt he considered money the most suitable and desirable bequest he could make to the Boards of Missions, and hence directed the rest and residue of his property, without intending any restriction or reservation, to be converted into money and go to the said Boards of Missions.
    The courts incline against any construction of a will which would result in intestacy, unless it is absolutely forced upon them : Redf. on Wills, 2d ed., vol. 2, p. 116; Thornton v. Burch, 20 Ga. 791; Hearne v. Wigginton, 6 Madd. Ch. 120, Am. ed., p. 82; Woolmer’s Estate, 3 Whart. 480; Nyce’s Estate, 5 W. & S. 260; Massey’s Appeal, 7 Norris 470.

      James Bain, Harry White and Silas M. Clark, for appellees.—

      We insist, upon the part of the heirs-atdaw, that this clause is not broad enough to carry the $34,457.72, which is the amount of his moneys on deposit and his unlifted dividends at the time of his death, after deducting debts, expenses, &c. It will be observed that testator names his residue as “ propertyhe does not provide as to the rest and residue of his “estate,” or of his “effects,” but of his property. A word which was not likely tó be used to designate money, or deposits or ehoses in action. Then he directs that this property shall be “sold and disposed of.” If the property referred to was money on deposit or dividends unlifted, these would certainly not be the subject of sale. Further, to show that the sales referred to were to be of the personal property, and had special reference to real estate, he directs his executors to make deeds-“for such” of the property sold as may be real estate, which implies of course the sales were to be of personal and real estate both, and his bequest to the Home and Foreign Missions is not of the property, but of the “proceeds of such sales.”
    We maintain, therefore, that the residue which he describes in the clause in question, was not a general but a particular residue. And as confirming this view of the case we refer to Hunter’s Estate, 6 Barr 97; Brendlinger’s Appeal, 2 Grant 461; McGlaughlin’s Executors v. McGlaughlin’s Administrator, 12 Harris 22; German v. German, 3 Casey 116; Ann Myers’s Appeal, 12 Wright 26; Fraser v. Alexander, 2 Dev. Eq. 348; Bradley v. Jones, 2 Ired. Eq. 245; Alexander v. Alexander, 6 Id. 229; Archer v. Duncale, 1 Peters 589; Strong v. White et al., 19 Conn. 238; Goulder County v. Littlejohn, 30 Wis. 344.
    When a residue is given it is true that every presumption is to be made that the testator did not intend to die intestate; but if he fails to make a disposition of any part of his estate it is an intestacy as to that part. The question is not whether he intended to dispose of the whole residue of his estate; it is, has he done so, and if he has, to whom has. he given it: Duffield v. Morris, 8 W. & S. 348.
    The use of general words like these, though always to be carried down to the devising clause, in order to illustrate the testamentary intention, do not of themselves create a fee, and will not carry an estate that is clearly emitted: Rupp v. Eberley, 29 P. F. Smith 141.
    This cause was argued in the court below prior- to the ruling of the Supreme Court in Massey’s Appeal, 7 Norris 470, and, therefore, upon the authority of the cases Patterson v. Swallow, 8 Wright 490, Neff’s Appeal, 2 P. F. Smith 327, and Yard v. Murray, 5 Norris 113, we argued that the legacy of Archibald W. Stewart, deceased, which lapsed by reason of his death, sank not into the residuary estate, but went to the heirs-at-law as in case of a devise. Under the ruling of Massey’s Appeal, however, this legacy sinks into the particular residue bequeathed to the appellants.
    January 5th 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

The material matter in controversy, in this case, is the sum of $34,457.72 which had accumulated, from dividends on bank stocks and otherwise, between the time of the date of the will in dispute, September 24th 1857, and the death of the testator April 5th 1877.

On the one hand it is contended, that by force of the residuary devise this sum belongs to the appellants, the residuary devisees and legatees, and on the other, that of this sum Archibald Stewart, the testator, died intestate.

This contention must be determined from the will itself; if the language of the residuary devise were certain and definite that would settle the question, but, as it is not, we must ascertain the intention of the testator by a consideration of the whole instrument.

Turning then to the will we find, in the outstart, the expressed intent of Archibald Stewart to dispose of “ such estate wherewith it hath pleased God to bless me;’’ and, so far, intestacy, as to any part of his property, is not contemplated. Next, having no lineal heirs, he makes certain specific bequests to his brothers, nephews and nieces, the American Bible Society, the Western Pennsylvania Hospital and to his housekeeper. Then follows the residuary clause in controversy, as follows: “ The rest and residue of my property, real, personal and mixed, I do direct my executors to sell and dispose of and execute and deliver good and sufficient conveyances therefor, for such as may be real estate, and the proceeds of such sales, I do hereby devise and bequeath to the Home and Foreign Mission Board of the Associate Reformed Church in the United States of America, by whatsoever name or style the same may be known or incorporated by.” Some four years afterwards, December 7th 1861, in view of the union which had been effected between the Associate Reformed and the Associate Churches, he added a codicil to his will in which he says: “ And I do hereby bequeath and transfer the said bequest and money hereby bequeathed, to the Home and Foreign Missionary Board of the United Presbyterian Church aforesaid.” * * * “And Ido hereby republish my last will and testament, and do declare and direct that any real estate I may have purchased or become seised of since the making of said will, shall pass under the same as though I had been seised thereof at the making of said will.” Again, some three years after this, August 24th 1864, he added another codicil, by which, after devising a certain farm to his niece, Mary Pattison, he republishes and ratifies his will and the previous codicil.

In all this we may observe a continuing disposition by the testator to dispose finally of all his estate, and to increase rather than decrease the residuary fund bequeathed to the missionary boards.From all this it would appear that the testator did not intend to die intestate as to any portion of his property, real or personal, and this intention must govern unless there is something in the devise itself which forces us to a different conclusion: for it is a rule long and well-settled, that a will must so be construed as to avoid a partial intestacy unless the contrary be unavoidable. From this it results that the residuary legatee often gets that which the testator clearly never intended he should have. This is notably so in the case of lapsed legacies and bequests ill given, for here is the expressed intent that the residuary legatee shall have that only which remains after all other legatees are provided for. The testator may have intended the residue to be very small, and yet, for the causes above stated, it may turn out to be very large, and thus defeat his intention. This happens from the settled disposition of courts to hold that the testator intended anything else rather than partial intestacy. As was said by Mr. Justice Kennedy in Woolmer’s Estate, 3 Whart. 477: “I have always understood, that with regard to personal estate, everything which is ill given by the will does fall into the residue; and it must be a very peculiar case indeed, in which there can at once be a residuary clause and a partial intestacy. And he goes on to say, “ that it is immaterial how it happens that any part of the property is undisposed of, whether by the death of a legatee or by the remoteness and consequent illegality of the bequest; in either way it is residue, that is, something upon which no other disposition of the will operates.” AYe may, therefore, safely repeat, that the money in controversy must go to the residuary legatees, unless there is something in the residuany clause itself which prevents such a result. AYe may say which certainly prevents such a result, for if it be at all doubtful, we must follow the rule and declare against a partial intestacy.

But it is insisted that the residuary clause in the will under consideration, embraces only such property as is the subject of sale, and so excludes the idea of money or other things not ordinarily the subjects of sale. This argument would be conclusive if, as in Hunter’s Estate, 6 Barr 97, this were a devise followed by a residuary clause ; for, in such case, it must be presumed that the testator intended to leave something for the residuary legatee. In the case in hand, however, the inquiry at once arises, if the money in controversy goes not to the residuary legatees, to whom does it go ? It must pass out of the will; of it the testator must have died intestate. But, as we have seen, a result of this kind is to be avoided if possible. It is true, indeed, that in Bredlinger’s Appeal, 2 Grant 461, a direction in a will to sell the testator’s personal as well as real property, and divide the income among his five children, was held not to mean notes, bonds and mortgages. But this case is badly reported, and, not only so, but the material* point in Hunter’s case, which is referred to as authority, is misapprehended. Nothing, therefore, can be predicated of this case. The only thing which renders this residuary clause at all doubtful or obscure is the direction which is found in it to the executors to sell, and the bequest of the proceeds of “such sales ” to the missionary boards. But does this direction amount to a limitation or qualification of the words “ The restand residue of my property, real, personal and mixed?” These words are sufficiently general to cover everything, and unless the alleged qualification excludes money, it also must fall into the residue. But as these boards were the favorite and principal objects of his bounty, we cannot but think it improbable that the testator intended to exclude residuary money from passing to these legatees, especially when he directed that money and money alone should be paid over to them. Suppose the testator, in his lifetime, after the making of his will and the codicils thereto, had converted all his real and personal property into cash, and it had been found on deposit at his death, would any one then contend that the residuary legatees could take nothing ? Yet, in that event, there would be nothing for the executors to sell. The rest and residue of my estate, of whatsoever kind it may be, I give to my executors to sell, the proceeds to be paid over to the missionary boards of the United Presbyterian Church. What is .this after all but a mere direction to sell what is saleable ? And if part of that estate comes to the executors in the shape of money, what then ?' It need not be sold, that is all. The testator, for the benefit of his donees, directed that his entire residuary estate should be converted into money, but if part of it is found in the shape of money, it needs no conversion, and surely not the less does it pass to the legatees. The whole mistake originates in making the direction to sell a description of the property bequeathed, whereas nothing of the kind was intended.

This apparent difficulty may be readily explained by assuming that Mr. Stewart did not anticipate that he would have any money to leave to these boards, except such as would be realized from the sale of his personal and real estate. On this assumption, the language used was intended for the then present condition of his affairs, but it were no more intended to prevent money from falling into the residue than it was to prevent the lapsed legacy of Archibald W. Stewart from taking that direction. He did not anticipate the lapse of that legacy, and so made no special provision for that event; he did not anticipate the accumulation of some $40,000 or $50,000 of money, and so made no special provision therefor. But as the residuary clause takes the one, there is no good reason why it should not take the other.

It was said by Mr. Justice Yeates, in Findlay v. Riddle, 3 Binn. 139, that the best rule in the construction of wills is, in the first place, to find out the general intent, and then, as far as the language will admit, to interpret particular expressions accordingly, and that in order to give effect to a general intent, a particular intent, inconsistent therewith, will be overlooked. In the case in hand, we have no expressed particular intent to interfere with a proper construction of the general intent, but only one that arises inferentially from the language used in conferring a power to sell upon the executors, and so this purely inferential intent may be the more readily overlooked.

In concluding this branch of our case, we cannot do better than adopt the language of the vice-chancellor, in the case of Hearne v. Wigginton, 6 Madd. Ch. Rep. 119 : “ The real question is, whether a general residuary gift is to be limited and qualified to property which is the subject of sale, because the testator has added, that his residuary property is to be sold for the benefit of his residuary legatee. It is uncertain, at the making of the will, what the testator’s property may consist of at his death, and the direction to sell implies only a general intention, on part of the testator, that his residuary property shall be converted or collected for the benefit of his residuary legatee.”

The remaining question is of easy solution. The legacies to John Stewart, William Stewart, Floranna Thompson and Eliza McQuilken, who died during the lifetime of the testator, leaving issue, are saved from lapse by the Act of May 6th 1844. The addition of the words, “ and none others,” to the directions to transfer the bequeathed stocks to the legatees, above named, is of no special significance. The testator, certainly, did not intend thereby to abridge the rights of these legatees, but rather, 'in this manner, to emphasize the absolute character of the gifts, and to indicate that they should vest in them to the exclusion of all others; and they, thus being made to vest in the immediate donees, passed to the heirs of those donees upon their decease.

The decree of the Orphans’ Court is reversed and set aside, and it is ordered that the report of the auditor be confirmed; that distribution be made as in that report recommended, and that the appellees pay the costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Maher’s Appeal.
    A judgment was given to secure two separate and distinct notes. These notes were renewed and usurious interest was charged thereon. One of these notes was paid about six months before the real estate of the debtor was sold at sheriff’s sale. Other judgment creditors claimed to have the usurious interest paid on both notes deducted from the amount of said judgment in a distribution of the proceeds of said sale. Held, that the judgment did not consolidate the notes so as make one indebtedness, and that only the usury paid on the unpaid note could be deducted.
    November 1st 1879.
    Before Sharswood, C. J., Merour, Gordon, Trunkeí and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Indiana county: Of October and November Term 1879, No. 375.
    Appeal of William Maher from the decree of the court dismissing the exceptions to, and confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Luther Martin.
    In ruling upon the exceptions, the court, in an opinion, said:
    “ We think the deduction of the excess of interest paid on the notes prior to the entry of the judgment was a mistake. The judgment described and specified the notes it was designed to secure, and thereby fixed the real .amount of the debt. Martin would not be allowed to say that he owed less than the judgment called for, or to deduct payments alleged to have been made before the judgment was obtained. Nor will his creditors be allowed to say so, in the absence of fraud! But all excess of interest paid on the notes after the entry of judgment is a payment on the principal, and must be deducted therefrom, as each payment-was made, after allowing the plaintiff interest at the rate of six per cent. The revival by scire facias was not conclusive on Martin, because no judgment had been obtained on the notes. The record of the judgment shows that it was merely a security for the debt represented by the notes. Maher so treated it, for when he revived it, judgment was taken for the $5000, as in the original, although a large sum had then been paid on the debt. It is urged that the two notes must be treated as separate and distinct, and that one of them having been paid and surrendered more than six months before the sale, it is too late to recall the excess of interest paid on that note. But it is only by virtue of the lien of the judgment that the plaintiff has any claim on the fund. This judgment was for one entire debt, and it makes no difference that the debt was evidenced by two securities. The excessive interest received after the entry of the judgment must go in liquidation of the whole debt thereby secured. See Price’s Appeal, 3 Norris 141. The reoort is referred back to the auditor with instructions to make a calculation accordingly, and report distribution.”
    The other material facts will be found in the opinion of this court.

      Silas M. Clark and John R. Wilson, for appellant.
    If Martin or his creditors have the right to deduct or retain the interest paid in excess of the legal rate prior to the revival of the judgment, upon what rule of the law shall he be allowed to deduct from the amount yet remaining unpaid on the $2500 note, the excess of interest paid on both notes ? We have already seen, and it cannot be denied, that the notes were founded in entirely different and distinct transactions, and had no relation to or connection with each other.
    If, therefore, the judgment had never been taken, certainly it would not be pretended that Martin upon payment of either one of the notes would have the right — after the expiration of six months — to deduct or retain the interest paid upon it in excess of the lawful rate, out of the remaining note. Each note represented an entire transaction, evidenced an independent debt, and the Act of the 28th of May 1858, only provided tfyat the borrower or debtor may retain and deduct such excess from the amount of such debt— not from any debt — but from the same debt. Or if the whole debt has been voluntarily paid then he may within six months recover back the excess interest paid on that debt — such excess may also be recovered by way of set-off to any other independent claim within six months.

      J. M. Thompson, S. A. Douglass and A. W. Taylor, for appellees.
    This judgment was for one entire debt, and it makes no difference that the debt was evidenced by two securities. The excessive interest received after the entry of the judgment must go in liquidation of the whole debt thereby secured: See Price’s Appeal, 8 Norris 141. The question is not one of indebtedness only, but is also one of lien. The right of the appellee to a share of this fund rests on the lien only. It therefore can extend to the payment of no claim not sustained by the lien. The validity of the lien is to be decided by the record. There is no judicial liquidation of the amount actually due. To ascertain the amount due from Martin to Maher resort must be had to other testimony than the record. No contract other than that shown by the record can be set up to establish the amount secured by the lien: Price’s Appeal, 1 Norris 141.
    January 5th 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

The indebtedness of Luther Martin to the appellant was originally evidenced by two promissory notes, one for $1500, made in April 1868, and the other for $2500, about a year thereafter. These notes represented separate and distinct transactions, both as to time and the consideration on which they were respectively based; and as they matured from time to time, about every ninety days, they were renewed, but their separate identity was preserved throughout until April 8d 1874, when the $1500 note was paid and lifted by Martin, and $100 paid on account of the second note which was thereafter renewed for $2400, until August 20th 1875, when it was protested for non-payment.

Interest at the rate of ten per cent, per annum was paid on both notes and the several renewals thereof, until the first one was paid, and on the other until it was protested.

On May 7th 1869, Martin executed and delivered to the appellant a judgment-bond, in the penal sum of $5000, conditioned for the payment of two promissory notes, one for $1500 and the other for $2500, each payable ninety days from April 16th 1869, and also for the payment of any note or notes given in renewal of the same or any part thereof. On the following day judgment was entered on the bond for the penalty. The note for $1500, described in the bond, was a renewal of the one first given in April 1868, and the $2500 note was*the same .that was originally given for that amount. The appellant’s claim upon the fund for distribution was based on the lien of the judgment, and the only contention was in regard to the amount to which he was entitled.

It is apparent on the face of the judgment that it was merely security for the separate debts, represented by the two notes and the successive renewals thereof. They were the primary securities, and the judgment was secondary and collateral thereto; but, inasmuch as the notes intended to be secured were specified, and the actual amount of the debts thereby fixed at the time the judgment was entered, it was not competent, while the judgment remained unopened, to show that the real debt at that time was less than the amount specified, or to deduct payments alleged to have been made before the entry of the judgment. When the judgment Avas revived in April 1874, after the $1500 note had been lifted, and the other reduced by payment of $100 on account thereof, there was no liquidation of the amount then remaining unpaid. It was revived for the penalty $5000, subject to the conditions of the bond upon Avhich it was originally entered, and it was competent for the defendant to shoAV that the real debt evidenced by the notes was reduced by payments or credits since the entry of the original judgment. It was accordingly shown on behalf of Martin, the defendant, that .one of the notes had been paid and surrendered and $100 paid on account of the other, and also that an excess of interest amounting to four per cent, per annum was regularly paid by him on the first note until it was lifted, as above stated, and that the same excess of interest was paid on the other note and renewals thereof until the last one was protested. It appeared, however, that the first note was paid more than six months before the sheriff’s sale from which the fund for distribution was realized, and hence the defendant was not in a position either to sue for or set off the excess of interest paid on that note. The learned judge of the Common Pleas, however, regarded the judgment as consolidating the separate items of indebtedness evidenced by the two notes, and permitted the excess of interest paid on both, after the entry of the original judgment, to be credited as payment on account of the principal of the outstanding note. In this we think there was error. The indebtedness, evidenced by the two notes, was not consolidated. While the appellant rightfully claimed to participate in the fund, by virtue of the lien of his judgment, the notes which it was intended to secure were recognised as separate and distinct debts, and so treated by the parties throughout. When the $1500 note,was paid it was surrendered and the remaining note was reduced to $2400. It follows, therefore, that appellant’s lien was good only for the amount of the outstanding note, with interest and costs, less the excess of interest paid, after the date of the original judgment, on that note and former notes of which it was the last renewal, to be credited from time to time on account of the principal. The other debt, evidenced by the note which was paid, was extinguished and the time had gone by for the defendant to either sue for the excess of interest paid on it, or to set off the same against the outstanding note.

Decree reversed at the costs of the appellees, and it is ordered that the record be remitted to the court below, with instructions to distribute the fund in accordance with the foregoing opinion.


author: Mr. Justice Paxson

text:
    The Armenia Ins. Co. versus Paul and wife.
    1. The issuing of a policy of insurance when a portion of the questions in the appplication remain unanswered, is a waiver of the answers to .such questions.
    2. In an application'for a policy of insurance the eleventh interrogatory was: “What is the distance, occupation and materials of all buildings within one hundred and fifty feet.” It was contended that the ¿mission to make any answer to the interrogatory avoided the policy. Held, that it was within the power of the company to decline the risk or seek further information, and having issued the policy they must be presumed to have been satisfied with the risk.
    November 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 300.
    Covenant on a policy of insurance by Joseph Paul and Mary Ann Paul, his wife, in right of said wife, against the Armenia Insurance Company of Pittsburgh.
    Paul and his wife kept a saloon in Chartiers borough. The fixtures, liquors and furniture were owned by the wife, and she insured them in the defendant company. In the application for the policy the property was described as situated along “ the line of the Chartiers Valley Railroad and P. C. & St. Louis Railroad, at the junction and near the depot.” Said application contained a number of questions to be answered by the insured, among which was the following:—
    “ 11. External Exposure. — What is the distance, occupation and materials of all buildings within 150 feet, north, south, east, west?”
    To this question no answer was written down in the application. It was filled up by the agent of the company, as Mrs. Paul could not write, and she signed the application by making her mark. Several other questions were not answered in the application.
    A clause of the policy read: “ Any omission to make known every fact material to the risk” shall avoid the policy. Beneath the signature of the applicant there was printed in small type, Make a diagram of the premises on the other side of this sheet.” Such a diagram was made, indicating that there were buildings twenty feet on the west and forty feet on the north; but there was no description of the buildings.
    At the trial, before White, J., the defendants, for the purpose of showing the location of the building and its surroundings and the exposures at the time the insurance was obtained and at the time the fire occurred, and that the representations contained in the application of the assured were false with regard to said exposures and surroundings, increasing the risk of hazard, offered the application and diagram thereon.
    Objected to, for the reason that the application- was silent upon the question of exposures, the blank for exposures not being filled up; that the diagram of the buildings was not in contradiction, and that the offer was incompetent for the purpose for which it was offered. Objection sustained.
    The defendants then renewed the offer of the diagram, for the purpose of showing an omission to make known material facts, to wit, that the building containing the property insured was within less than 150 feet, to wit, within 17 feet of a building used for rendering lard and tallow — a butcher-shop, a building 8 by 25 feet, which said grease-rendering building was within 2 feet of a wood and coal-house, and was connected by a row of frame structures extending within 2 feet of the building containing the property insured; that the building containing the property insured was within about 20 feet of two other buildings or dwellings, between which dwellings and the buildings containing the property insured there stood a frame coal-house and water-closets. The building was also within 9 feet of the track of the Chartiers Railroad Company.
    Objected to as incompetent and irrelevant. Objection sustained.
    Verdict for plaintiffs for $945.41, when defendant took this writ and alleged that the court erred in rejecting the above testimony.

      Thomas M. Marshall, for plaintiff in error.
    A concealment of facts material to the risk and within the knowledge of the insured vitiates the policy: Satterthwaite v. The Mutual Beneficial Ins. Co., 2 Harris 395; Jennings v. Chicago Ins. Co., 2 Denio 75. Instead of an answer to the eleventh interrogatory there is a blank, which is equivalent to a representation that there was no building in any direction within one hundred and fifty feet.

      Millar & McBride, for defendants in error.
    The issuing of a policy on an application which contains no answer to certain questions is a waiver of answer to those questions, and to avoid the policy in such cases, the insurers must prove untrue statements other than those inquired about: Wilson v. Hampden Fire Ins. Co., 4 R. I. 159; Campbell v. M. & F. Mutual Fire Ins. Co., 37 N. H. 35; Cumberland Valley v. Schell, 5 Casey 31; Liberty Hall Association v. Housatonic Mutual Fire Ins. Co., 7 Gray 261; Hall v. Peoples’ Mutual Fire Ins. Co., 6 Gray 185; Lorillard Fire Ins. Co. v. McCullaugh, 21 Ohio St. 176; Dodge Co. v. Mutual Ins. Co., 12 Wis. 337.
    If the omission to answer the printed question No. 11 in the application is waived by the issuing of the policy, the diagram on the back of that paper cannot prejudice the claim of the insured. It was not signed by the assured, nor is it referred to in the answer to any of the questions.' The defendants having issued the policy without-requiring any answer to the eleventh interrogatory contained in the application concerning the occupation of the building insured, it ivas fair to infer that they waived information on that point; and having done so, they cannot now avoid the policy by proof that the premises were used for a hazardous purpose or business : Liberty Hall Association v. Housatonic Mutual Ins. Co., 7 Gray 261.
    January 5th 1880.
   Mr. Justice Paxson

delivered the opinion of the court,

The ground upon which the defendant below seeks to prevent a recovery is, that the plaintiffs were guilty of a suppression of facts material to the risk in their application for the policy. The application signed by Mary Ann Paul, the insured, includes a survey of the premises, which survey contains a' large number of printed questions with blanks left for the applicant to sign. Many of these questions were answered, and some of them were not. Among the questions left unanswered was the eleventh interrogatory, in these words: “ External exposure: What is the distance, occupation and materials of all buildings within one hundred and fifty feet? North, east, south, west?” The omission to answer as to this matter is the cause of complaint. It was alleged, on behalf of the company,-that instead of being free from exposure within one hundred and fifty feet,, various inflammable buildings were situated within that distance, and a travelled railway track, in constant hourly use by a railroad company, was located within nine feet of the saloon insured; that the smoke-stacks of locomotives passing along the track emitted sparks of fire within twelve feet of the roof of the saloon.

The fire originated upon the insured premises. It was not caused by reason of its proximity to other buildings. It may have been occasioned by the passing locomotives. But of that the company had no cause to complain. The application discloses the fact that the property was situated on “the line of the Chartiers Valley Railroad and the P. C. and St. Louis Railroad, at the junction and near the depot.” The company were thus warned that the location was one of danger.

Was the omission to answer the eleventh interrogatory such a concealment as avoids the policy ? I am not aware that this question has been decided in this state. It has been decided elsewhere, however, and the authorities are against the company. Without elaboration, the rule appears to be, that the issuing of a policy, where a portion of the questions in the application remain unanswered, is a waiver of answer to such questions: May on Ins. sect. 166, citing Wilson v. Hampden Fire Insurance Co., 4 R. I. 159; Campbell v. The Insurance Co., 37 N. H. 35; Liberty Hal] Association v. Housatonic Insurance Co., 7 Gray 261. In the case of Hall v. The Insurance Co., 6 Gray 185, it was said by Shaw, C. J.: “ The fact that one question was unanswered is immaterial ; in fact, many questions were not answered. The company by consenting to make the policy upon the application as it was, waived all claim to further answers.” As this rule seems reasonable, we adopt it. When the company came to issue this policy they saw that the eleventh interrogatory was unanswered. It was in their power then to decline the risk or seek further information. Having issued it they must be presumed to have been satisfied with the risk.

We do not regard the diagram as important. It is upon the back of the application, and was not signed by the insured. It is true there is a line printed in small type just below the signature of the applicant: “ Make a diagram of the premises on the other side of this sheet.” Such diagram was made. If it was intended to make this a diagram of surrounding property for the space of one hundred and fifty feet, it would have been only fair to have said so in the directions.

We see no error in this record.

Judgment affirmed.


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    Mears versus Humboldt Ins. Co.
    1. A policy of insurance contained a condition, “ that, if the assured shall keep_or.have in any place on the insured premises where this policy may apply, petroleum, naphtha, benzine, benzole, gasoline, benzine-varnish, or any product, in whole or in part, of either ; or gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda; or keep, have or uggjsamphene, spirit gas, or_any burningJluid, or chemical oils, without written permission in this policy, *tKen, and in every such case this policy shall be void.” With proper precautions the assured took and used benzine on the premises insured for the purpose of cleaning machinery. Held, that the words “ keep or have” were intended to prevent the permanent and habitual storage of the prohibited articles, and taking them on the premises for the purpose of cleaning the machinery, was not embraced within the meaning of these words.
    2. As the use of benzine was not prohibited in terms it was a question of fact for the jury whether it came within the description of burning fluids or chemical oils; and in the absence of proof it is not a matter of which the court will take judicial notice.
    3. A small portion of carbon oil had been used at the same time with the benzine in cleaning the machinery. It was not among the prohibited articles named in the condition; not having been shown that it was of the same nature as eamphene and spirit gas the court cannot take judicial notice of it.
    4. Per Paxson, J. What is intended to be prohibited in this and similar clauses of policies of insurance, is the habitual use of the prohibited articles, and not their exceptional use in some emergency.
    November 3d 1879.
    Before Sharswood, C. J., Mergur, Gordon, Paxson and Trunket, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 204.

      Debt by Henrietta Mears, guardian of the person and estate of Thomas Mears, a lunatic, against The Humboldt Fire Insurance Company, of Pittsburgh, Pa.
    Thomas Mears owned a large flouring mill and distillery. He insured this property in the defendant company for one year from January 8th 1874, for $1500. The policy contained, inter alia, the following condition : “ Or if the assured shall keep or have in any place on the insured premises, where this policy may apply, petroleum, naphtha, benzine, benzole, gasoline, benzine-varnish, or the product in whole, or in part of either; or gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda; or keep, have, or use, camphene, spirit-gas, or any burning fluid, or chemical oils, without permission in this policy, then, and in every such case, this policy shall be void.”
    The mill and distillery contained considerable machinery, including a steam-engine, boilers and metal gearing. A tough and gummy substance had accumulated on the cogs, journals, &c., of the metal gearing, and the inside of the boilers had become heavily coated with rust. In removing these accumulations the assured had on previous occasions used benzine and carbon oil as solvents. Eor the purpose of cleaning in the same way, he purchased some eight or ten gallons of benzine, and a small quantity of carbon oil, and stored them in his bonded warehouse, situated some forty or fifty yards distant from the insured premises, and employed William Jacobs to do the work. Jacobs carried the benzine from the warehouse to the distillery in a small tin can, and used it to soften the gummy substances above mentioned, which had accumulated on the gearing of the machinery, and when thus softened he scraped it oif with a case-knife, and carefully removed it from the insured premises. He used the benzine and a little carbon oil in like manner to remove the rust from the inside of the boilers. About ten days were consumed in completing the work. Some weeks after the machinery was thus cleaned and put in good order, a fire occurred on the 30th of September 1874, which resulted in a total destruction of the property. It did not originate from the benzine used in cleaning, nor occur while the work was in progress.
    At the trial before Stowe, P. J., the defendant submitted the following points, to which a,re subjoined the answers of the court:
    2. That if the jury find from the evidence that, after the issuing of the policy in suit, and previously to the fire, Thomas Mears, the assured, purchased from eight to ten gallons of benzine to use in cleaning the machinery, boiler and engines of the distillery, and that with the knowledge and by the direction of the said Mears, the witness, William Jacobs, used nearly the whole of said benzine in the distillery in cleaning the engine, boilers-and machinery, in the manner stated by said witness, and such use extended over a period of about two weeks, this was a violation of one of the conditions of the policy, and avoided the same.
    “Affirmed.”
    3. That if the assured, prior to the fire, kept or had upon the premises covered by the policy in suit, benzine, this avoided the policy, and it is immaterial that the purpose of having benzine upon the premises may have been to clean the machinery.
    “Affirmed.”
    4. That if the assured, prior to the fire, kept or had upon the premises, covered by the policy in suit, carbon oil, this avoided the. policy, and it is immaterial that the purpose of having the said oil upon the premises, may have been to clean flues or machinery.
    “Affirmed.”
    5. That if the jury find from the evidence, that the assured, Thomas Mears, had upon the premises covered by the policy in suit, to wit, in the boiler room, a barrel in which was contained carbon oil, this was a violation of one of the conditions of the policy, and avoided the same. .
    “Affirmed.”
    6. That if with the consent, or by the direction of the assured, benzine or carbon oil was taken upon the premises covered by the policy in suit between its date and the time of the fire, one of the conditions of the policy was violated, and the policy was avoided.
    “ Affirmed.”
    Verdict for defendant, and after judgment, plaintiff took this writ and alleged that the court erred in the answers to the above points.

      Weir Gibson and J. Dunbar, for plaintiff in error.
    It will be observed that this condition of the policy does not prohibit the use of benzine on the insured property. It only forbids the assured to keep or have it there. The words keep and have are employed in the disjunctive. They are synonymous terms in the connection used in this instance. They signify, to hold, to retain one’s possession or power. They were evidently intended to prevent the assured from the permanent and habitual holding and retaining the forbidden article in his possession, on the property insured, as a place of storage, and were not intended to prohibit him from having it there in such quantity as might be necessary to clean the machinery and keep it in good order. The contract does not forbid its use on the machinery or other parts of the property insured. In the absence of a stipulation against this, the assured had the undoubted right to use it for this or any other purpose. He could not exercise this right without the presence of the article. To keep or have it there ivas a necessary incident to the right to use it. Its presence for this purpose was not keeping or having it on the insured premises, within the meaning of the condition of the policy.

      It will be observed also that tbe last or concluding paragraph of the condition does, not prohibit the assured from keeping, having or using, benzine and carbon oil by name. The language is, that he shall not keep, have or use camphene, spirit gas, or any burning fluid, or chemical oils.
    These words do not embrace benzine and carbon oil, and cannot be invoked as a defence, unless upon the theory that they are articles which are covered by the words burning fluid. But these words are to be read with reference to the connection in which they are used, and must be interpreted in view of this to mean burning fluid, such as camphene, spirit gas, and chemical oils.
    To reach the true intention of the parties, the words of this part of the contract are to be read in a restricted sense. That is the prohibition of the enumerated articles was directed against their permanent and habitual use, and not against their temporary and occasional use, for the purpose of cleaning, repairing and keeping the insured property in good order and condition.

      M. W. Aeheson and S. C. Schoyer, for defendant in error.
    It is not to be expected that a distillery will be used as a place for the storage of benzine or carbon oil, or that they will be kept there as articles of merchandise. Therefore, if the interpretation which the court below gave to the condition of the policy is rejected, it is difficult to perceive what effect can be given to the prohibition: Birmingham Fire Ins. Co. v. Kroegher, 2 Norris 64; McClure v. Watertown Fire Ins. Co., 9 Id. 277; Glen v. Lewis, 8 Exch. 607; 20 E. L. & E. 364.
    The stipulations contained in the condition of the policy in the present case are “promissory warranties,” and must be “exactly and literally fulfilled,” otherwise, the policy is avoided by its express terms. 1 Arnold’s Ins. 577 ; May on Ins., sect. 156 ; Glendale Woollen Co. v. Protection Ins. Co., 21 Conn. 19; Wilson v. Hamden Fire Ins. Co., 4 R. I. 159.
   Mr. Justice Paxson

delivered the opinion of the court, November 17th 1879.

The first assignment of error relates to the use of benzine upon the insured premises. It was contended that the court erred in instructing the jury in answmr to the defendant’s second point, that if Mears, the assured, purchased from eight to ten gallons of benzine, and used nearly the whole of it in cleaning the engine, boilers and machinery of the distillery, and such use extended over a period of about two weeks, there was a violation of one of the conditions of the policy in suit and avoids the same.

The condition in the policy referred to is as follows: “ Or if the assured shall keep or have, in any place on the insured premises where this policy may apply, petroleum, naptha, benzine, benzole, gasoline, benzine-varnish, or any product in whole or m part of either ; or gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda ; or keep, have or use cam phene, spirit gas or any burning fluid or chemical oils, without written permission in this policy, then and in every such case, this policy shall be void.”

It will be observed that in the first portion of this condition the provision is that the assured shall not “keep or have” any of the enumerated articles upon the insured premises, while in the latter portion, the “ use ” of certain other articles is prohibited, in addition to the restriction contained in the first.

The words “keep or have,” as applied to the articles first enumerated, evidently were intended to prevent a storage of the prohibited articles upon the premises, either permanently or habitually. While the words are used in the disjunctive, they are evidently synonymous, and signify to retain in possession. It would be straining a point to say that bringing a prohibited article upon the premises upon a single occasion, and for the sole purpose of cleaning machinery, was keeping or having it there within the meaning of the policy. The evidence shows, and it is not denied, that the can of benzine used for the purpose above stated was not kept on the insured premises during the period of its use, but was stored in a bonded warehouse, fifty or sixty feet distant. The witness, William Jacobs, who cleaned the machinery, got it from the warehouse from time to time as he needed it.

The assured did not keep or have benzine upon the insured premises within any reasonable view of the meaning of the. policy. But it is said he used it there, and that this avoids the policy. The use of benzine is not prohibited in terms. If prohibited at all it must be because benzine comes.within the description of burning fluid or chemical oils. We must ascertain the meaning of these general words, used in the latter portion of the condition of the policy, by referring to the preceding special words. Under this construction the words burning fluids or chemical oils must be held to mean only such burning fluids and chemical oils as are in their nature like camphene or spirit gas. This was the construction placed upon the identical words in Wheeler v. The American Central Insurance Company, decided by the St. Louis Court of Appeals, in March 1879, and reported in the Western Insurance Review, vol. 12, p. 252. The same rule is laid down in Wood v. The Northwestern Ins. Co., 46 N. Y. 421; Morse v. Buffalo Fire and Marine Ins. Co., 30 Wis. 534; and Wills v. Hanover and Germania Fire Ins. Co., The Reporter, vol. 8, p. 343.

There was no proof that benzine was of like nature with camphene or spirit gas. It is not a matter of which the court will take judicial notice. It is a question of fact, to be found by a jury upon evidence. See Wood v. The Northwestern Ins. Co. and Morse v. Buffalo Fire, &c., Co., supra.

We are not disposed to give the word “use” in this policy the narrow construction claimed for it. It must have a reasonable interpretation, such as was probably contemplated by the parties at the time the contract was entered into. Nearly every policy of insurance issued at the present time contains this condition, or a similar one. What is intended to be prohibited is the habitual use of such articles, not their exceptional use upon some emergency. The strict rule claimed by the defendants would prevent the assured from painting his house or cleaning his furniture, as it would be difficult to do either without using some of the prohibited articles. If the company intended the condition to cover such exceptional uses, it ought to have been plainly expressed, and probably would have been. That any one would knowingly accept a policy with such a clause is not probable. We are not without abundant authority upon this point. See Dobson v. Sotheby, M. & M. 20; Shaw v. Robberds, 6 Ad. & E. 75; Grant v. Howard Ins. Co., 5 Hill 10; Van Valkenburgh v. The Ins. Co., 70 N. Y. 605; Franklin Ins. Co. v. Chicago Ice Co., 36 Md. 102 ; Raferty v. The Ins. Co., 29 Maine 97 ; O’Neil v. Buffalo Fire Ins. Co., 3 Comstock 122. The case of The Birmingham Fire Ins. Co. v. Kroegher, 2 Norris 64, cited by defendants, does not apply. In that case the assured kept a barrel of petroleum for sale on the premises covered by the policy.

As bearing upon this point, it is proper to observe that permission to make repairs was endorsed upon the policy. While no. point was apparently made of this in the court below, and we would not therefore reverse for this reason, the fact is entitled to weight in considering this question. The permission to repair the machinery carried with it the right, to use such means as might be necessary for that purpose.

The second assignment also refei’s to keeping benzine upon the premises, and is covered by what has already been said. The remaining assignments relate to the use of carbon oil. It was proved that a small quantity had been used at the same time as the benzine, in cleaning the machinery. It is sufficient to say that carbon oil is not among the prohibited articles. It is not named in the condition. If it was of the same nature as camphene and spirit gas, or other enumerated articles, it was not shown to be so, and the court cannot take judicial notice of it. This principle has already been sufficiently referred to.

All of the assignments of error are sustained;

Judgment reversed and a venire facias de novo awarded.