author: KiNG, President. —

text:
    Ludlam’s Estate.
    A specific legacy is the bequest of a particular tiling, or money specified and distinguished from all others of the same kind, and which would immediately vest without the assent of'the executor. It differs from a general or pecuniary legacy in this respect, that if there he' a deficiency of assets, the specific legacy will not he liable to abate; but if the specific legatee be disappointed, by failure of the specific fund, the legatee will not be entitled to any recompense or satisfaction out of the personal estate of the testator.
    Where a testator made a bequest as follows: “At and immediately after the decease of my wife, I give unto my nephew, James Ludlam, his executors, &c., one thousand dollars on the books of the loan office, Pennsylvania, as per certificate No. 267,” but previous to the death of the testator and after the making of the will, the government paid off the loan, and the testator received the $1000 standing in his name: Held, that the legacy was specific, and by the receipt of the money by the testator, it was adeemed. Nor does it make any difference if the receipt of the testator was compulsory, and the state of the fund changed by the act of law, as the time for the payment of the loan having arrived, or by the act of the parties.
    The leaning of Courts of Equity is always against regarding legacies as specific ; and the inclination is always to hold a legacy general.
    Tliei'e is a class of cases in which the alteration of the fund by the act or operation of law, has been held not to operate as an ademption of a specific legacy.
    If an executor has made a mistake by improperly charging himself, when he comes before an auditor on the settlement of his final account, he may be discharged from an erroneous credit given in a former account. The whole account comes before the auditor, both for charge and discharge, under a reference for final settlement, adjustment, and distribution.
    The legal presumption is, that his liability is co-extensive with his admissions, but if he can clearly show that he has by mistake surcharged himself with that for which he is not legally liable, or admitted a claim to a legatee, which the latter has no right to claim, it is the duty of the auditor to settle and adjust the account according to the truth and justice of the case.
    Although an auditor has been appointed on the application of an executor, and not at the request of a legatee or creditor, and afterwards the legatee appears before the auditor, and at his own request has the account recommitted to that officer, the Court will not then strike off the appointment.
    If the legatee intends to object to the reference, he should appear at once, and ask the Court to set aside the appointment; but after having moved a reference back to the auditor, it is too late to complain of any defect in the alleged original appointment.

      Jan. 29.
    This case came before tbe Court on exceptions to tbe report of an auditor. All tbe facts wbieb gave rise to the questions decided by tbe Court, are so fully stated in tbe opinion of tbe judge who delivered their decision, that it is deemed unnecessary to furnish a more extended statement of them, as it is believed the reader will be fully apprised of all that is material for a just comprehension of tbe cause.

      Tbe cause was argued by Mr. Wain for tbe exceptant, and Mr. Thomas Dunlap for tbe executor.
   Tbe following opinion was delivered by

KiNG, President. —

On tbe 15tb' of April, 1824, George Ludlam made bis last will, in wbicb be bequeathed the rents, issues and profits, interests, dividends, and income of all bis estate, real and personal, to bis wife, Lydia Ludlam, for life. Tbe second item in bis will, under wbicb tbe question involved in this controversy arises, is in tbe following words: At and immediately after thé decease of my said wife, I do give and bequeath unto my nephew, James Ludlam, now of Oxford street, London, bis executors, administrators, and assigns, eleven shares of stock of tbe President, Managers, and Company of tbe Germantown and Perkiomen Turnpike Road; one thousand dollars of the United States six per cent, stock or loan of tbe year 1812, standing in my name on the looJcs of the loan office, Pennsylvania, as per certificate No. 267; twenty shares of tbe capital stock of tbe company for erecting a bridge at or near Trenton; and ten shares of stock in tbe Philadelphia Insurance Company.” The testator died in 1827. Previous to his death, tbe government of the United States bad paid off the loan of 1812, and Mr. Ludlam received tbe $1000 standing in bis name. Tbe money so received by him, Mr. Ludlam banded over to Mr. Matthew L. Bevan, tbe present executor of bis estate, by whom it was paid to tbe firm of Bevan & Porter, who were Mr. Ludlam’s bankers. This money was afterwards paid over to Bevan & Humphreys, who, during tbe life of Lydia Ludlam, tbe testator’s widow, continued to pay tbe interest thereon to her.

Tbe first question for decision is, whether tbe legacy of $1000 government stock was adeemed and extinguished by tbe receipt of tbe amount by tbe testator, when the loan of 1812- was paid off. This depends on tbe fact of this legacy being general and pecuniary, or specific. If it is specific, it is adeemed and extinguished; if general and pecuniary, it is not. A specific legacy has been defined to be tbe bequest of a particular thing, or money, specified and distinguished from all others of tbe same kind, as of a horse, a piece of plate, money in a purse, stock in public funds, a security for money, wbicb would immediately vest without tbe assent of tbe executor.” It differs from a general or pecuniary legacy in this respect, that if there be a deficiency of assets, tbe specific legacy will not be liable to abate with tbe general legacies; and on tbe other hand, if such specific legatee be disappointed, as by failure of the specific fund, the legatee will not be entitled to any recompense or satisfaction out of the personal estate of the testator. There is another class of legacies, which the course of the argument for the legatee requires us to notice. These are legacies in the nature of specific legacies ; as of so much money, with reference to a particular fund for payment. This kind of legacy is so far general, and differs so much in effect from a mere specific legacy, that, if the designated fund be called in, or fail, the legatee will not be deprived of his legacy, but be permitted to receive it out of the general assets; yet the legacy is so far specific, that it will not be liable to abate with general legacies upon a deficiency of assets: 1 Roper, 149-50.

That legacies of public or other stocks may be specific, is unquestionable. The inquiry in all such cases must be, whether the intention to make them specific is clear; which is certainly requisite to render them so. The intention, however, is generally to be ascertained from the face of the will itself. What kind of expression is sufficiently indicative of such an intention, has frequently engaged the attention of courts, and received their decision. In Bastian v. Cooke, 5 Vesey, 461, a testator gave to his son, “John Cowling Barton, £3000 stock in the 3 per cent, consols, bank annuities being part of my stock now standing in my name, to be transferred to him by my executors,” &c. A question arising whether this legacy was or was not specific, “ a great deal,” says the master of the rolls, “ may be urged as to intention; to show that the testator had no idea of the consequence and nature of a specific legacy. But upon the will and the report, is there any ground to say this is not specific, being clearly so according to every determination on the words ?” Again he remarks: “ If the testator had sold out part of his stock, the executors would not have had to replace it: but it would have been adeemed.” In Norris v. Harrison, Madd. Ch. Rep. 280, Am. ed. 487, a bequest of “ the sum of ¿£11,000 capital bank stock now standing in my name in the boohs of the Governor and Company of the Banlc of JEngland, was held by Sir Thomas Plumer to be clearly specific. In Ashburner v. M’Guire, 2 Bro. Ch. Rep. 108, the bequest of the interest of a bond of ¿£3500 for life to B., and the principal at her decease to C.; in Ryder v. Wager, 2 P. Wms. 328, the bequest of the residue (after deducting ¿£500) of money owing to the testator by Sir M. H.; in Chaunth v. Beech, 4 Vesey, 555, the bequest of ¿£8000, the amount of a banker’s note; in Humphreys v. Humphreys, 2 Cox, 184, the bequest of all the stock possessed by the testator in the 8 per cents., being about <£5000; were ruled to be specific legacies, and the receipt of the money by the testator an ademption of the legacy. The cases of Douglass v. Congreve, 1 Keen, 410; Kamp v. Jones, 2 Keen, 736; Davis v. Morgan, 1 Beaver, 259; Hays v. Hays, 1 Keen, 97, further exemplify the same principle. The subject will also be found to have been very fully considered, and the authorities up to that period (1823) examined by Chancellor Kent, in Walton v. Walton, 7 John. Ch. R. 257; in which he held that a bequest of a testator’s “right, interest, and property in thirty shares, which he owned in the Bank of the United States,” was specific. “ A legacy of a debt,” says he, “ unless there is ground for considering it a legacy of money, and that the security is referred to as the best mode of paying it out of the assets, is as much specific as the legacy of a horse or any moveable chattel whatever. If the specific thing is disposed of or extinguished, the legacy is gone.” In Blackstone v. Blackstone, 3 Watts, 335, this doctrine received the consideration of our own Supreme Court, and it was there held that a bequest of “ all my 250 shares of the capital stock which I hold in the Union Bank of Pennsylvania,” was a specific legacy, which was extinguished by a sale of the stock in the lifetime of the testator. The words “ which I hold” in this bequest,- were held by the Court “ to individuate the stock as a corpus” with sufficient precision to make the legacy clearly specific. This case was one of great apparent hardship to the legatees. It was admitted that the testator sold the stock only from an apprehension of danger of loss upon it; that he took a bond from the purchaser of it for the amount at which he sold it, declaring that the bond should go to the legatees in place of the stock; and that the bond remained wholly unpaid at the death of the testator. But, say the Court, “ the legacy being a specific one, whatever was the motive for its extinction or change of being, whether to destroy it or preserve it for the legatees, and whatever be the evidence of such motive, it ceased to have the specific existence ascribed to it in the will, and neither the bond taken as a substitute for it, nor its value, can be demanded of the testator’s estate.” In the case before us, the legacy is described as “ $1000 oe United States 6 per cent, stock or loan of 1812, standing in my name on the books of the loan office, Pennsylvania, as per certificate No. 267.” The words “ standing in my name” have been held, in Barton v. Cooke, 5 Vesey, 461; Norris v. Harvren, 2 Madd. Ch. Rep. 280; Sleech v. Thornington, 2 Vesey, Sen. 261; Drinkwater v. Falconer, Ib. 623, as sufficiently identifying stock bequeathed, so as to make a legacy of it specific. Beside these words, we have in this case a precise description of the stock bequeathed, together with a statement of the number of the particular certificate evidencing it; a minuteness of description leaving no kind of doubt as to the identity of the subject-matter of the bequest, intended by the testator to be given to the legatee.

That a specific legacy of stock which has been sold by a testator before his death; or of a debt which has been demanded and received by him, is adeemed and extinguished, is not disputed. Nothing remains to which the words of the will can apply. The intention of the testator is immaterial in the ademption of the specific legacies, because the subject being extinct at the death of the testator, there is nothing upon which the will can operate: Blackstone v. Blackstone, supra.

But it has been strongly urged on us, that this is not a regular specific legacy, but one in the nature of a specific legacy; — one in which a given sum of money is bequeathed, with reference to a particular fund out of which it is to be satisfied; and that this class of legacies are never held to be adeemed or extinguished by the sale or other disposition by the testator of the fund from which payment is to be made previous to his death. That a distinction does exist, between a bequest of a sum of money referring to a security or debt for its payment, and a gift of the security or debt itself, is undoubted, although Lord Thurlow, in Ashburner v. M’Guire, seemed to have regarded it as a refinement. The leaning of Courts of Equity is always against regarding a legacy as specific. The will is always read with an inclination to hold a legacy general ; and if there is the least opening to imagine the testator meant to give a sum of money, and referred to a particular fund only, as that out of which in the j/irsi place he meant it to be paid, the legatee will have this advantage, that it shall be considered pecuniary, so as not to have the legacy defeated by the destruction of the security: Chaunth v. Beech, 4 Vesey, 565, 566; Ambler, 568. The same legacies may be specific in one sense, and pecuniary in ano ther : specific, as given out of a particular fund, and not out of the estate at large; pecuniary, as consisting only of definite sums of money, and not amounting to a gift of the fund itself, or any aliquot part of it: Smith v. Fitzgerald, 3 Ves. & Beam. 5. The kind of legacy alluded to is wbat is termed in the civil law a demonstrative legacy, that is, a general pecuniary legacy with a particular security pointed out as a convenient mode of payment, where, although such security may be called in or fail, the legacy will not be adeemed.

Of this kind of legacy the case of Kirby v. Potter, 4 Vesey, 478, is an example. There a legacy to B. of ¿£100, out of my reduced bank annuities, 3 per cents., was ruled to be a general and not a specific legacy, Lord Alvanley holding the phrase, £100 out of my reduced b,ank annuities,” meant that the executor should raise ¿6100 by selling so much of that stock. Sibley v. Perry, 7 Vesey, 522; Le Quie v. Finch, 3 Merivale, 49; Deane v. Test, 9 Ves. 146; Fowler v. Willoughby, 2 Sim. & Stewart, 358; are cases determined on the same principle. The principle extracted from these cases is, that a sum of money bequeathed out of particular stock, is prima facie adjudged a money legacy, but liable to be considered a specific bequest of so much of the identical stock which the testator had, when a clear intention appears upon the whole will. In Barker v. Rayner, 5 Madd. Ch. Rep. 217, it is said, that, “ when once it is determined that the legacy of a debt is specific and not demonstrative, that the only safe and clear way is to adhere to the plain rule, that there is an end of the specific gift, if the specific thing does not exist at the testator’s death.”

The judgment of the Court being that this is a specific, and not either a general or demonstrative legacy, we will notice the remaining reasons urged against its being adeemed by the receipt of the money from government. It is said that this receipt by the testator was compulsory and not voluntary, and that the state of the fund was changed by act of law and not by the act of the parties.

At one period a notion certainly prevailed, that although a specific legacy of a debt or security was adeemed, where the testator received the debt specifically bequeathed at his own instance, that it was otherwise where the debt was paid him without his application. The cases of Orme v. Smith, 1 Equity Cases Ab. 302; Partridge v. Partridge, Cas. Temp. Talb. 228, seem to have been decided on this distinction. This doctrine has, however, been since entirely exploded. See Ford v. Fleming, 1 Eq. Cas. Abr. 302, Ambler, 402, and the cases cited in Roper on Legacies, vol. 1, p. 243; see also Walton v. Walton, 7 John. Ch. Rep. 265-6. There is no ground, therefore, for a distinction between a voluntary receipt by the testator of a debt specifically bequeathed, and one coerced by suit or demand. In both eases the legacy of the debt, so far as payment has been made, is extinguished.

There are cases in which the alteration of the fund by mere act or operation of law, has been held not to operate as an ademption of a specific legacy of the fund. Such a case is Partridge v. Partridge, Cases Temp. Talbot, 226. There A. bequeathed to B. ¿63000, 3 per cent, consols. This fund was afterwards changed by Act of Parliament into one of a different description. The legacy was held not to be adeemed, because the alteration of the fund not being made by the testator but the legislature, the act was not allowed the effect of prejudicing the legatee. Suppose a ease in which a legacy is given of stock in a particular bank, naming it; and afterwards by law the name of such bank is changed. This would be such an alteration of the fund by act of law, as would not work injury to the legatee of the stock. But the case before us is not one of this description. There is no alteration of the fund by act of law. The government of the United States owed the testator a debt for the payment of which the public faith was pledged to him. When due it was accordingly paid. This is no more a change of the fund by operation of law, than would be the payment of a bond or other debt owed to the testator, which he had previously specifically bequeathed by his will. The obligation to receive payment from the government, and to release it from further payment of interest, was as much a contract on the part of the testator, as was the engagement of government to pay him interest until the debt matured, and the principal at that time.

The last ground on which the executor of Ludlam is sought to be charged with the payment of this legacy, has certainly nothing to recommend in natural equity. It appears that the executor, on the 19th of February, 1830, filed an account of his trust in the Register’s office, charging himself with ten shares United States 6 per cents., par §1000, as held in trust for James Ludlam the legatee. And that on the 27th of April, 1841, he filed a second account, in which he again charges himself with this loan as so held in trust. A copy of this account was transmitted by him to London, accompanied by a letter addressed to the executor of James Ludlam, who is deceased, in which he expresses his readiness and willingness to pay over the amount when required by proper authority.

From these grounds it is insisted that the executor is estopped from denying the claim of the legatee. It is manifest that the executor throughout has acted on the mistaken idea, that the legacy of tbe United States loan was not adeemed by its payment to the testator. A natural mistake certainly, seeing we have arrived at a different conclusion only after a laborious investigation. His mistake cannot eompromit the rights of the residuary legatee, who is the real party in interest claiming against the alleged specific legatee. The testator’s legacies must be paid out of his estate, to those to whom they by law pertain. Not to those to whom the executor ' supposes they belong. We are now distributing the personal estate of George Ludlam among those to whom he has bequeathed it by his will. None others can ask any part of it. If his executor has involved himself in any liability to a party claiming to be a legatee of any part of the estate, vsdiom the law does not recognise as such, the executor may be answerable personally. But surely that can give such a party no claim against the estate of the testator, at the expense of those to whom it rightfully belongs. But it was entirely competent for the executor, when he came before the auditor on his final account, to ask to be discharged from his erroneous credit to James Ludlam, given in his original and final account. The whole account, both as to charge and discharge, comes before an auditor under a reference for settlement, adjustment, and distribution. The executor may be surcharged to any extent the proofs may justify. Why can he not discharge himself by showing clear and manifest overcharges against himself, made through ignorance, inadvertence, or mistake of law or fact ? I can see no reason why he should not have this claim to mere justice. It is always a difficult task for an executor to sustain errors alleged to be made against himself in the statement of his accounts. The legal presumption is, that his liability is eo-extensive with his own admissions. But when a case does exist, in which an executor can, on a reference of his accounts, show clearly and conclusively that he has by mistake surcharged himself with what he is not legally liable for, or that he has admitted a claim by a legatee which the latter has no right to, we can have no doubt of the right and duty of the auditor to settle and adjust the account before him according to the truth and justice of the case.

The cases cited of Skering v. Greenwood, 4 Barn. & Cress. 281; Bramstone v. Robins, 4 Bingham, 11; Bresbane v. Dacres, 5 Taunt. 143; are cases depending on the well settled principle, that if a person with a full knowledge of facts pays over to another claiming it as a right, money which he was not compellable by law to pay, he cannot, on discovering his error, recover it back, there being nothing against conscience in the other party retaining it. They are • all cases where the party seeking to recover back the money, either by way of direct action or set-off, had • actually paid the disputed sum over to his opponent under a claim of right. No case has been, nor do I believe can any be shown, in which it has been held that a party can recover from another money erroneously admitted to be due to the plaintiff; or that, in an action brought on such admission, it is incompetent for the defendant to show that his admission of liability to the plaintiff was founded on a mere mistake as to the legal claim of the latter to the sum demanded. Suppose, instead of proceeding in this court, the representative of James Lud-lam had sued at law under the Act of Assembly authorizing suits to be brought for the recovery of legacies; would the admissions in ■these accounts, that he held the proceeds of the government loan for the use of Ludlam, have concluded the executor from showing that the legacy had been adeemed and extinguished by the receipt of the loan from government by the testator before his death; and that his admission of liability was predicated on an error in law as ■to the effect of this payment and receipt ? I cannot think so. But in this proceeding, where payment is asked from the fund, and ‘where the effect of admitting the claim would be to take from the ■ residuary legatee what by law belongs t.o her, and give it to one who has no claim upon it, such a position, is clearly inadmissible. The request for an issue is refused, because there is no state of disputed facts requiring it. The original- legacy; the receipt of the subject of the legacy by the testator; the handing over the proceeds to the executor; the retention of it by the executor’s banking-house until the testator’s death; the payment of interest on it to his widow; the admissions of James Ludlam’s right to it in the accounts and correspondence; in short, every fact on which the claim is placed, are clear. The only question in the case arises as to the principle 'of law flowing from these facts. These principles are against the legatee, and in favour of the executor.

The remaining objection arises from the alleged irregularity of the appointment of the auditor. It is contended that under the provisions of the 47th section of the Act of 1884, and the 1st section of the Act of April 1840, such an appointment can only be made on the application of a legatee, and that the original appointment, being in this case made on the application of the executor, is void. The literal directions of these laws seem to require all applications to compel the executors to pay and deliver ■ over legacies, should be made by a legatee or other person interested in a legacy. But, supposing that these laws give an executor no status in Court to relieve himself from his trust, by having the claim of legatees ascertained by the decree of the Court, still, I consider, under the circumstances of this case, the objection cannot prevail. After his appointment, the auditor proceeded to settle the account of the executor, and to assign the legacies to the different legatees, and reported, the result to the Court. The exceptant did not appear on that occasion. Afterwards, and after the auditor’s report was filed, the exceptant applied to the Court for an order directing the report made to be referred back to the auditor. This was accordingly done, and the exceptant- appeared before the auditor and litigated his claim, which, after a full hearing, was ruled against him. After this course of procedure, it seems to me too late for the exceptant to complain that the auditor was not appointed on his motion. By this course he adopted the appointment as much as if he had originally moved it. If he had desired to object to the regularity of the appointment of the auditor, his true course was to have moved, to quash it. After moving the reference back, and after appearing and presenting the claim to the auditor, it is too late to complain of any alleged defect in the original appointment. Such a course of proceeding is equivalent to an original application to compel payment or delivery of the legacy.

Another circumstance exists in the case, of some importance. Although the counsel who moved the reference did so on the record on behalf of the executor only, yet he also represented the residuary legatee, and now desires, on behalf of this legatee, to validate, so far as his present affirmative action can do Sfo, the proceedings of the auditor. The whole result of vacating our past doings would be to refer the case back again to the same auditor, on the formal application of the residuary legatee, from which no other than the present result could follow. Under all these circumstances, I think, we should not interfere with the original appointment of the auditor.

         An appeal was taken to the Supreme Court in this case, and the decision of the Orphans’ Court affirmed, March Term, 1850; hut the case has not been reported.


source: Caselaw Access Project

license: Public Domain

text:
    Estate of Daniel Fleck.
    A. E., by bis will, bequeathed to his wife the interest on £1500, to be paid to her annually after his decease, for and during her natural life, in a manner directed by the will, and to be enjoyed by her as long as she remained his widow, and at her death to be divided among his children, in equal shares, naming them, or to their legal representatives. D. E., one of said children, died before his mother: Held, that his widow was entitled to the one-third thereof, as personal assets of the estate of her deceased husband. In an ordinary sense, the words “legal representatives” mean executors or administrators. They are not, in a bequest, words of substitution or limitation, but express the quantity of interest intended to be given to the legatees.

      March 1.
    This case arose in tbe Orphans’ Court, on exceptions to tbe report of an auditor.
    Tbe facts were these: Adam Fleck, by bis last will and testament, bequeathed bis property to bis children, in various portions, and also made a bequest to bis widow, giving to her the lawful interest of <£1500, to be paid to her annually after bis decease, in a manner directed by tbe will, during her natural life, so long as she remained bis widow.
    There was no dispute but that bis executors faithfully executed this part of the will. Tbe widow lived until 1844. There was a further provision in the will, that at her decease this sum of <£1500 should he divided among all his children, eight in number, or their legal representatives.

    Daniel Fleck, one of the sons of Adam, who was entitled to a portion of this £1500, died about the year 1882, and before his mother, leaving a widow and eight children.
    He also left considerable real and personal estate, which, after his decease, was distributed according to the intestate laws of this Commonwealth. Subsequently, the widow of Adam Fleck died, and the portion which Daniel would have received, had he lived, was paid to his administrator, in pursuance of his father’s will, on the decease of his mother, and this sum was assets in his hands for distribution. The children of Daniel claimed the entire sum, amounting to $500, while his widow claimed the one-third. The case was referred to an auditor to make distribution, who awarded to the widow the one-third, and to her children by said Daniel Fleck the remaining two-thirds. To this report the children excepted, and the question presented to the Court for decision was, whether, under the facts disclosed, the widow was entitled to the one-third part of this legacy, which became payable at the death of the widow of Adam Fleck.

      This question was argued bj M. W. Ash, Esq., for the except-ants.
   Tbe following opinion was delivered by

KiNG, President. —

Adam Fleck, by bis last will, dated April 9th, 1815, made, inter alia, the following bequest: “ I give and bequeath unto my wife, the lawful interest of the sum of ¿£1500, to be paid to her annually after my decease, for and during the term of her natural life, in such manner as hereinafter directed, to be enjoyed by her as long as she remains my widow.” In a subsequent item he directs that this sum of ¿£1500 “ shall be, immediately after her decease, paid and divided in equal shares to all his children thereinafter named, or their legal representatives.” Daniel Fleck, the decedent, was one of the children of Adam Fleck, and as such was entitled to an eighth part of this sum of ¿£1500 after the death of his mother. Daniel died in November,1882, leaving a widow and eight children, seised and possessed of considerable real and personal estate, which was distributed according to law. The widow of Adam Fleck, the mother of Daniel, died in March, 1844. The sum of $500, being the portion of this £1500 which would have pertained to Daniel, had he survived his mother, has been received by the accountant, who is the administrator of said Daniel. The auditor appointed to settle the account, and make distribution of this fund according to law, has reported a distribution, giving one-third of the money to the widow of Daniel Fleck, and dividing the remaining two-thirds equally among his children. To this distribution the children have excepted, insisting that no part of their father’s portion of the ¿£1500, left to secure the annuity to the widow of Adam Fleck, is payable to the widow of Daniel, but that the whole sum is directly and exclusively payable to them, as the only representatives of said Daniel. The bequest of ¿£1500, in equal proportions, after the death of their mother to the children of Adam Fleck, passed a vested interest in this sum, postponed only as to payment; which was not to be made until after the decease of the widow of Adam, who was to enjoy the interest thereof during her life. At the decease of Daniel Fleck, his equal portion of this legacy was part of the assets of his estate, and as such, when received, payable and distributable in like manner as any other part of the same. The bequest is made to the children of Adam Fleck or their “legal representatives.” The ordinary sense of the words “ legal representatives,” is, executors or administrators. They are not in this bequest words of substitution or limitation, but express the quantity of interest intended to be given to the legatees. Such a legacy is like any other item of personal estate belonging to a decedent, which is not available until a postponed period. It passes to the executors or administrators of the legatee at his decease, and, when realized, is applicable by them to general purposes of his other' personal estate. It is like a debt owing to him, but not payable until a period more or less remote; which, when paid, is to go in the same course of administration as his assets, immediately available and convertible. The case of Price v. Strange, 6 Mad. Chan. Sep. 104, is directly in point. There the testator directed his executors to sell his real estate, after the death or marriage of his wife, to whom the rents and profits thereof were given until the happening of one of these events; and to divide the proceeds thereof among such of his children as should be then living, “ and the legal representatives of him, her, or them, as should then be dead, share and share alike.” The master of the rolls, Sir John Leach, held, that this was a vested legacy in the children respectively: that the words “ legal representatives,” were to be understood, executors or administrators; and that the purchaser of a share belonging to one of the children, who had become bankrupt, at a sale made by his assignee, obtained a good title to the share of such bankrupt legatee.

If the will of Adam Fleck had directed the sum of =£1500 to be equally divided among his children, their executors or administrators, at the decease of the annuitant, could it be doubted that the children, at his decease, would have possessed vested interests in their respective proportions of this legacy ? The case of Price v. Strange establishes that the words, “ legal representatives,” when used as here, and not controlled by any different intention collected from the whole instrument, to be equivalent to the words, executors or administrators. A legacy vested in interest but merely postponed as to payment, passes to the executors or administrators of such legatee, in the event of his death before the receipt thereof, in like manner as to all purposes as any other portion of his personalty. The claim, therefore, of the children of Daniel Fleck, to exclude their mother from any portion of the legacy due and payable to him after the decease of his father’s widow, cannot be sustained on principle or authority.

The exceptions are dismissed, and the report confirmed.


author: PARSONS, Judge. —

text:
    In the Matter of the Estate of Christopher Mason, dec’d.
    In the marshalling of assets for the payment of debts, a mortgage, lite all other contracts for the payment of money, must bo paid out of the effects left by the deceased. It is a debt, and the land specifically bound by the mortgage is only additional security for its payment. Generally speaking, it is to be paid out of the fund appropriated by law for the payment of debts.
    The personal effects of the deceased in the first place are to be applied to the payment of a mortgage, as well as any other debt. As between the mortgagor and personal representatives of the deceased, a general devisee is entitled to the personal estate. But this rule does not apply so as to defeat the rights of specific or pecuniary legatees.
    But if an intestate in his lifetime has purchased an estate encumbered with a mortgage, his personal effects will not in the first instance be taken to pay the mortgage-debt, although he covenanted with the vendor to pay the mortgage and indemnify him from its payment. A mortgage upon a. man’s estate, not of his own contracting, Is not considered his debt, payable out of his personal estate. There must be an express direction in the will, throwing the -charge of the payment of the mortgage on the personal property.
    Other lands devised are not liable to contribute to the payment of a mortgage purchased by the testator in his lifetime, where no provision is made in the will for such payment.
    A devisee who has taken land under a will charged with a mortgage created by the testator in his lifetime, cannot call upon other devisees who have taken other land under the same will, specifically devised to them, to contribute rateably towards the extinguishment of such encumbrance. In respect to his relation with other devisees, such devisee takes the land mm onere. -Nor is such devisee entitled to have his land exonerated from such encumbrance out of personal estate specifically bequeathed. The rule is, different as to creditors.
    It has been decided in Pennsylvania, that specific and pecuniary legacies bequeathed to children ought not to be brought in case of particular land encumbered with a mortgage, devised to another child. In all such eases the devisee takes the land cum onere.

    where a testator devises his lands specifically to various persons, making no provision for his widow whereby her dower is to be paid, one who has been compelled to pay the widow her dower out of the land devised to him, cannot call upon the other devisees of real estate for contribution. Her claim is equal upon all the land' taken by each devisee, and each is only bound to contribute in proportion to the land devised, and only out of the particular parcel given under the will. All devisees accept the land thus devised, conscious of the widow’s claim for dower, and each must bear the encumbrance on the property thus accepted.

      March 15.
    This case arose on a petition presented to tbe Orphans’ Court of Philadelphia county by one George Hocker, who stated that he was a devisee under the last will and testament of Christopher Mason, deceased; that certain real estate had been devised to him by the testator, consisting of two several parcels of land, with buildings thereon, &c. On each of those two pieces of land were of different one of which was a mortgage given by one George Martin for the payment of $900, immediately after tbe death of Magdeline Hesser, the widow of one George Hesser, who was the former owner of the land, and for the payment of the interest annually on said sum, during the lifetime of said widow, which land had been purchased by said Christopher Mason, in his lifetime, under and subject to said mortgage, who before his death had reduced said mortgage to $475, and since the petitioner had accepted said devised premises, he had paid -to Mag-deline Hesser the interest on said sum down to the time of her death, which was in 1843.; and that the holder of said mortgage was- about to collect the principal sum due out of said property, on which it was a specific lien.
    The petitioner also stated that the said Mason by his will devised to him another piece of land (describing it), on which the deceased had, in his lifetime, given a mortgage to Reuben Haines, for the sum of $1600, upon condition that said Mason should indemnify said Haines and his heirs from the claim of dower which his wife Susan might make on said land, to the amount of $800; and setting forth that since the death of said Mason his widow had made a claim upon the legal representatives of said Haines, and had actually received from them the sum of $356, which sum they were about to endeavour to collect on said mortgage, with which the tract so devised to him was encumbered.
    The petition then set forth that said Christopher Mason died seised of other real estate, devised to other individuals, naming them, and prayed the Court for a decree of contribution from those respective devisees, in proportion to the value of the lands thus devised.
    The petitioner also set forth another ground of complaint, which was, that Susan, the widow of said Christopher Mason, had made her demand for dower upon both of said pieces of land, and that he had been compelled to pay her more than $500, which he also prayed might be a proportionable charge upon the land devised to other individuals, who were devisees under the same will.
    The cause was argued by F. O. Brewster, for the petitioner, and W■ L. First, for the respondent.
    The Court dismissed the petition, when an appeal was taken to the Supreme Court, and the decree was affirmed: See 4 Barr, 497.
   The opinion of the Court was delivered by

PARSONS, Judge. —

This is a petition filed by George Hooker, a devisee under the will of Christopher Mason, deceased, asking the Court to decree a contribution from other devisees, under said will, for money which he alleges has been and may be collected out of two pieces of land which were devised to him by the testator. In his application, he sets forth three distinct claims, each of which will be considered in the order they are presented. The petition first states that there was devised to him by said will, a house and one a,ere of ground, which had been conveyed by Jacob Haas, administrator of George Hesser, to George Martin, who, on receiving the deed, executed a bond and a mortgage on the property conditioned for the payment of $900 immediately after the death of Magdeline Hesser, and the interest annually during her natural life; that on the 30th of December, 1826, said Martin conveyed the same property to Christopher Mason, subject to the payment of said bond and mortgage, and interest; and that down to the time of his death, the said Mason-regularly paid the annual interest on the same, also reduced the principal to the sum of $475; and that said petitioner paid the accruing interest on the same, up to the time of the death of said Magdeline, which-occurred in March, 1843; and that the holder of said bond -and mortgage is about to collect the principal by an enforcement of the lien created by said mortgage on the property. Hence the question raised is, whether the other devisees of land, under said will, are bound to contribute anything towards payment of said sum.

From the view which the Court take of the case, it is perhaps unnecessary for us to decide whether, by Mason’s accepting a deed for this property, there was created a covenant on his part to pay the mortgage or not, and for the present we deem it immaterial; although, from the principles laid down in Campbell v. Thrum, 3 Watts, 60, I should be inclined to think, from the fact of his accepting the deed subject to the payment of the mortgage, the law would imply a covenant on the part of the vendee to pay the amount which was due on the same; but, in making an application of the rules of law that we think govern this case, no express opinion is requisite on this point.

It may be well, in the first place, to inquire out of what property or fund a mortgage is to be paid, in marshalling the assets of a deceased person.

It seems to be well settled that a mortgage, whatever may be the form of the security, whether it be accompanied with, or be without a covenant or bond for the payment of the money borrowed or secured to be paid, being, in the abstract, and intrinsically, no more than a contract for a borrowing and lending, is only a debt, and the estate mortgaged is a pledge by way of additional security for the money borrowed; hence it follows that the mortgagor is bound to make good the money, if the land proves a defective security. From this consideration of the character of a mortgage, the conclusion is irresistibly formed, that it is as much a debt due by the deceased, as one contracted by a bond or any other sealed instrument, and even of more solemnity than a simple contract debt. Therefore, generally speaking, it must be paid out of the same fund appropriated to the payment of other debts. Thus we find the rule laid down in Powell on Mortgages, 780. It being then once established that a mortgage was a specialty debt, it followed, of course, that the personal estate was, in the first place, to answer it in equity, as between the heir-at-law of the mortgagor, and his personal representatives. So, likewise, a general devisee is entitled to have the personal fund applied in payment of a mortgage on a devised estate: Powell on Mortg. 782. But this rule of exonerating the charge on the real, and casting it on the personal estate, does not apply so as to defeat the rights of specific or pecuniary legatees (see Tipping v. Tipping, 1 P. Wm. 729); and so far have the Courts in England carried the doctrine, that personal funds must pay the mortgage on real estate, although it leave younger children entirely destitute: Powell on Mortg. 785. Such is undoubtedly the law in relation to a mortgage executed by the deceased, where he, by his own special contract, has encumbered the estate; but I apprehend this rule does not apply where a testator has purchased an estate encumbered with a mortgage, which is the case now before us for decision, such being the facts stated in the petition.

It is said by Mr. Powell in the book above cited, p. 862, If one purchase an estate subject to a mortgage, his personal estate will not be liable to exonerate the real estate from the payment of a mortgage-debt, although he covenanted with the vendor to pay the mortgage and indemnify him from all costs and charges in respect of it: for in such case the personal estate of the purchaser has not received any addition to its funds by means of the mortgage.” So likewise it was said by Sir William Grant, master of the rolls, in the case of Hancox v. Abbey, 11 Ves. 189, “ a mortgage upon a man’s estate, not of his own contracting, is not considered his debt, payable out of his personal estate.” The ancient and modern English decisions are full on this subject. I shall not attempt tó cite them all, but will only briefly refer to a few. In the case of Pockley v. Pockley, 1 Viner, 36, decided by Oh. Nottingham, in 1641, it was ruled that where one purchased land subject to a mortgage-debt, it did not make the debt personal; and it required an express declaration by will to charge the personal assets with it. The cases of Coventry v. Coventry, Strange, 596, 2 P. Wm. 222, contain a similar doctrine. So in the case of Bagot v. Crighton, 1 P. Wm. 347, the ancestor mortgaged his estate and died. His daughter and heir, Lady Bagot, afterwards joined with her husband in a deed and fine, whereby she settled her estate on her husband and herself and the heirs male of the body of her husband; he afterwards joined in an assignment of the mortgage (the mortgagee wanting his money), and covenanted to pay the money due on the mortgage of the ancestor. It was held by Lord Ch. Cowper, the personal estate of the deceased husband was not liable to be applied in ease of the mortgaged premises; for the debt was originally that of the ancestor, and continued to be so; the covenant upon transferring the mortgage was an additional security for the satisfaction of the lender, and not intended to alter the nature of the debt. Subsequent cases contain the same doctrine; and, perhaps, we may mention Twaddell v. Twaddell, 2 Bro. 101, 152, as a leading case upon the subject; Billinghurst v. Walker, 2 Bro. 604; Butler v. Butler, 5 Vesey, 534; Matheson v. Hardwill, 2 P. Wms. Note, 664; Tannihill v. Pawsit, 2 Bro. 27. Most of these were cases in which there were covenants or other contracts with the mortgagee to pay the debt, and that was held not to be a sufficient requisite; that the dealing with the mortgagee must be of such a nature as to afford decided evidence of an intention to shift the primary obligation from the real to the personal fund; and all the cases agree that no covenant with the mortgagor is sufficient for that purpose: 2 Powell on Devises, 675. The person on whom the estate devolves takes it cum onere: Cornish v. Shaw, Ch. Cas. 271. The Courts in this country, where the subject has been presented before them, hold the same doctrine as that established by the English authorities. I will barely refer to one or two: in the case of Cumberland v. Caddington, 3 Johns. Ch. 229, it was held, that where a person takes a conveyance of land subject to a mortgage, covenanting to indemnify the grantor against the mortgage, and having paid off part of the encumbrance dies intestate, the land is the primary fund to be resorted to for payment of the residue, and the heir cannot throw the charge upon the personal representatives. And it seems to be further ruled, that, if the purchaser has ever rendered himself liable at law to the mortgagee or creditor for the payment of the debt, this circumstance will not be sufficient to change the natural course of the assets; there must be strong and decided proof of intention to subject the personal estate to the charge, by an express direction in his will, or language equivalent to an express direction, before the purchaser may throw the charge upon the personal assets. Chancellor Kent, after reviewing most of the English cases upon this subject, in a very elaborate opinion, concludes his examination by saying, that the result of the cases seems to be that, as to wills, the testator may by express directions charge such an encumbrance upon his personal assets, or even without express words he may do it by dispositions and language that are tantamount; as if, for instance, the continuance of the charge primarily on the land would be repugnant to some of the provisions in the will and defeat them. As to other acts of the purchaser in his lifetime, in order to charge his personal estate as the primary fund, he must make himself by contract personally and directly liable at law for the debt to the owner of encumbrance; and even a covenant or bond for the purpose will not be sufficient, unless accompanied with circumstances showing a decided intention to make truly the debt personally his own Kensey v. Kensey, 9 S. & R. 71. If, then, we apply the principles above mentioned to the facts of the case now before us, it is manifest we cannot decree a contribution from other devisees for any money that the petitioner has paid, or may be liable to pay, in consequence of the encumbrance complained of. If the personal estate of the deceased could not be applied by the executor in ease of this mortgage, a fortiori other land specifically devised could not be made to contribute to a fund for that purpose. This is the mortgage of George Martin ; he is personally liable to the mortgagee for the debt; the land is an additional security; Christopher Mason, if ever-liable on any contract, it could only be upon an implied covenant; and we have, I think, clearly shown that, even had he given an express covenant, this devisee could not call in aid his personal estate for the relief of the devised premises. There is nothing in the will of Mason which goes to show that he intended the personal fund left by him to go in payment of this mortgage; and, in the absence of any such declared intention, it is difficult to see how the executor could have applied money for the relief of one particular devisee. It is not the creditor or holder of the mortgage who now invokes the aid of this Court; such a claim would present a different case. It is a devisee who asks for contribution, and we think he is not entitled to it on this demand.

It is further set forth in said petition for another claim, that said deceased devised to the said George Hooker another lot of ground, containing six acres, on which there was a mortgage executed by the said Christopher Mason, accompanied with a bond to Reuben Haines for $1600, conditioned that said Mason would indemnify and save harmless the said Haines and his heirs to the amount of $800 from any claim which Susan, the wife of said Christopher, should make for dower out of a piece of land conveyed by said Mason to said Haines on the 20th of April, 1830, averring that after the death of said Mason, Susan his widow made her demand for dower, and received from the land sold to Haines the sum of $356, which sum the representatives of Reuben Haines are about to endeavour to collect on said mortgage, by enforcing the same in virtue of the lien on said lot of six acres of ground, and that they demand payment from this petitioner.

He therefore prays that the other devisees under said will, and named in the petition, may be compelled to contribute their rateable proportion out of the lands taken by them under the respective devises in the will, towards the payment of the same.

In the consideration of this branch of the case, it must be borne in mind that this is the personal debt or mortgage of the deceased, and also that the executor is not asking us to decree that all the land devised shall be made to bear a respective portion of the demand upon the ground that the personal effects of the estate have been exhausted by the payment of debts. Nor are we informed whether there are or are not sufficient personal assets for the payment of this sum secured by the bond and mortgage. But the naked question presented for our decision is this: can a devisee who has accepted a devise, of land under a will charged with an encumbrance, call upon other devisees who have taken other land specifically devised to them under the same will, to contribute ratea,bly towards-the extinguishment of the encumbrance thus created by the testator, or does said devisee take his portion of the estate cum onere ? Does he accept the property charged with the encumbrance so far as it respects other devisees or specific legatees ?

It seems to be a settled principle in relation to this point, that, in the absence of any expressions of intention to the contrary, the devisee of a mortgaged estate is entitled to have the encumbrance discharged out of the following funds, as the rule is settled in England: The general personal estate; lands expressly devised for the payment of debts. If secured by bond or covenant, or if the testator were a trader, freehold lands descended to the heir, and this, whether the debt were secured by specialty or not, or the testator were a trader or not. Lands devised charged with debts; and in such ease, if the estate devised to him were included in the charge, he would be liable to contribute rateably with the other devisees. But the devisee of a mortgaged estate is not entitled to be exonerated out of personal estate specifically bequeathed: See O’Neal v. Head, 1 P. Wm. 693. A fortiori, such a devisee is not entitled to call upon the devisees of other lands, not charged by the testator with debts, for contribution; even though the debt were secured by bond and mortgage, and such other estates were therefore liable to the creditor (as they would be by law in this state, for, in Pennsylvania, we know that all lands are charged with the payment of debts): 2 Powell on Devises, 674. And such seems to be the case of Clifton v. Bent, 1 P. Wm., where one died indebted by bond, who by his will had given a legacy of £500, and devised his freehold lands to B. in fee, leaving a personal estate sufficient only to pay the bond: the legatee shall not stand in the place of the bond-creditor, to charge the bond in regard to the land specifically devised otherwise, if the land had descended to the heir, and such seems to be the law as laid down in Galton v. Hancock, 2 Atk. 431. The case of O’Neal v. Head, is not unlike this now before us; A. died seised of a real estate in fee, which he had mortgaged for ¿6500, and possessed of a leasehold, devised the former to his eldest son in fee, and gave the latter to his wife, leaving debts which would exhaust all his personal estate, except the leasehold given to his wife; and the question was, whether the leasehold premises devised to the wife should be liable to discharge the mortgage; and it was decreed, by the master of the rolls, after taking time to consider, that as the testator had charged his real estate by this mortgage, and on the other hand specifically bequeathed the leasehold to his wife, the heir should not disappoint her legacy by laying the mortgage-debt upon it, as he might have done, had it not been specifically devised; and though the mortgaged premises were also specifically given to the heir, yet he, to whom they were thus devised, must take them cum onere, as probably they were intended. That by such a construction each devise would take effect. In support of this principle, Powell, in his Treatise on Mortgages, cites the ease of Lutkins v. Leigh, where the testator having mortgaged certain lands, devised them to his wife for life, with remainder over, and gave her a legacy of £1500, and bequeathed-the residue of his personal estate to other persons; the personal estate not being sufficient to pay the £1500 and liquidate the mortgage, Lord Talbot held, the devisees must take the devised estate cum onere, and the same principle seems to have been adopted by the courts in Pennsylvania. Hence we find it determined in the case of Ruston v. Ruston, 2 Dall. 243, by Chief J. M’Kean, that specific and pecuniary legacies bequeathed to children, ought not to be brought in ease of particular land, encumbered with a mortgage, devised to another child: for, he says, the devisee of the real estate must take it cum onere, that is, subject to the mortgage. If we apply these principles to the case now before us, it is manifest that the petitioner is not entitled to contribution from the other devisees.

The counsel for the petitioner rely upon the case of Morris’s Executors v. M’Cannoughy, 2 Dall. 189, to support the claim now made; but that was a different case from this. There the executor of the mortgagee was enforcing the collection of the money from the estate of the mortgagor, and the Court held, that all the land of the testator was the debtor in the hands of his devisees, and should contribute proportionably. It would seem there was a judgment against the entire estate, which shows clearly, that the Court did not determine a principle different from what we have stated. And if it is argued they did, it was decided in 1792, and the case of Ruston v. Ruston, above cited, was decided in 1796, which makes it the latest and binding authority.

There is nothing in the will of the testator from which it can be collected there was an intention on his part that the petitioner should take this piece of land discharged of the encumbrance created by him upon it. When the - will was made he knew of the mortgage given, and the object of its execution. He was aware that his wife was entitled to dower out of the land he had conveyed to Reuben Haines, and he made no provision for his widow in his will, nor gave her anything in lieu and satisfaction of her dower at common law; hence, in opposition to the legal presumption, a Court could with some degree of propriety infer, that the testator intended that the devisee should take”the property subject to this contingent encumbrance. In the absence of any declared intention to the contrary, the law requires us to infer, that, as between this and the other devisees, the testator designed that the petitioner should take the land cum onere. In adopting such a conclusion no hardship is visited upon the devisee. The testator could dispose of his property in the way he deemed best; to one clogged with encumbrances, and to another free and clear, untrammelled with liens, and we have only to carry out the provisions of his will in accordance with settled legal principles. If Mr. Mason had chosen to designate any other fund for this debt, or required contribution from the other devisees, we certainly would compel it. But, while his testamentary writing contains no such declaration, we must infer, that he never intended that those to whom he specifically gave other land, should join in relieving this devisee from the burthen resting on that portion of the estate he has taken under the will.

This petitioner asks for contribution on another ground, and for another object. It is this: he alleges that after the death of Christopher Mason, Susan, his widow, made her claim upon both of said tracts of land for dower, and that he has paid to her the sum of $504.28 on this demand of dower, for which he contends the other legatees ought to make contribution. It seems to me, the mere statement of the demand is sufficient, without taking up much time to show that it cannot be enforced. This woman had an equal claim upon all the other lands devised to those who are now called upon to contribute; and it surely would be unjust, after they have been compelled to pay the one-third of the rents of their land, or given to Susan Mason the use of the one-third, from the death of her husband, now to call upon them to relieve George Hooker from the burden he has borne in common with them. No one can doubt that, when he took the land under the will, he was conscious of this legal claim of the widow; and the principle of law is equally clear, that he accepted the devise subject to this claim, consequently, he must bear it himself. For the reasons above mentioned, we are of the opinion, that George Hooker is not entitled to contribution from the other legatees, for any of the claims now presented before us; and, therefore, order that his petition be dismissed.


author: Kins, President. —

text:
    Estate of John Gill.

      (x., by a codicil in bis will, gate bis executors tbe sum of $3000 in trust, to be invested during tbe life of bis mece; tbe income to be paid to her annually, provided, however, if bis said niece should marry, then the same to be paid to any one she might name as her trustee, to be laid out, if she requested it, in furniture, in the ' name of her trustee, for her sole and-separate use. After tbe making of the codicil, the niece married, and Gr. purchased furniture for her to the .amount of $2383.44, on her marriage, and charged her with this sum on bis books: Said, that this was an ademption of the legacy pi-o tanto to tbe amount of the sum thus charged against her by tbe testator.
    It is a general rule, where a father gives a legacy to bis child, it must be understood as a portion, though it is not so described in the will; and afterwards advancing a portion to that child, though there may be slight cireuinstances of difference between the advancement and tbe portion in amount, yet the father will be intended to have the same purpose in each instance ; therefore tbe advance is an ademption of tbe legacy. Not so when a stranger gives a legacy; it is understood as giving a bounty.
    This presumed ademption may be destroyed or confirmed by parol evidence, showing a different intention by the testator.
    And the rule relative to a parent, equally applies when tbe testator has placed himself in loco parentis to the legatee. Hence, whore the testator’s assumption of the office of parent is established, his legacy will be considered a portion, and a subsequent advancement will be an ademption in all cases where it would be so made by a natural parent.
    The assumption by a person of tbe relation of a parent to tbe legatee maybe proved by parol, and is not required to be collected from the face of the will itself.
    The test in such cases seems to be, whether the circumstances taken in the aggregate amount to a moral certainty, that the testator considered himself in tbe place of the child’s father, and as meaning to discharge those natural obligations which it was the duty of the parent to perform.

      May 14.
    This case arose in the Orphans’ Court on exceptions to the report of an auditor.
    It is believed all the facts material for a proper understanding of the points decided by the Court, are so fully stated in the opinion of the Judge, that no further statement of them is important.
   The opinion of the Court was delivered by

Kins, President. —

The testator, John Grill, after various minor bequests, enumerated in his will, bequeathed the residue of his estate to be divided into five equal parts, among his nephews, Archibald Campbell and John Gill Campbell, and his nieces, Mrs. E. Gill Baker, Harriet Oakman, and Ann Matilda Campbell, now Mrs. Miller. The particular form of these bequests being immaterial to the question before the Court, need not he referred to. In his will the testator declares that “ no loans or advances by him made to any of the children of his sister Mary Campbell, shall be charged against them or deducted from or charged against the bequests and devises in their favour, unless, and only so far as charges therefor shall appear on his books, without any directions forbidding the collection of said loans or advances, and excepting however bonds and mortgages, which remain in full force.” By a codicil to his will, dated June 4, 1842, he bequeathed to his executors $3000 in trust, to be invested during the life of Ann Matilda Campbell; the income to be paid to her, &c., provided, however; that if his said niece should marry, then the $3000 are to be paid to any one she may name as her trustee, to be laid out, if she requests it, in furniture, in the name of the trustee, for her sole and separate use.” On his books, prior to the date of his will, appear various charges against his nephews and nieces. Against Eliz. G-. Baker in 1832, $4000 for furniture; against Harriet Oakman, $3000 furniture and cash. And after the date of the codicil, against Ann Matilda Miller $2383.44, which appears to have been laid out by him for furniture on her marriage. The evidence is that his intention was to have given Mrs. Miller furniture to the amount of $3000, but he was prevented from the size of her house, which did not require more than the sum of $2383.44 to furnish it. The full amount of $3000 was to be made up to her on removing to a more capacious mansion. The testimony shows the testator to have put himself in the place of a parent to his nephews and nieces, having declared his intention to do so on the occasion of the death of their father. And his engagement was most faithfully kept, he having acted towards his orphan relatives with the kindest of paternal care.

Two questions have arisen out of the bequest of $3000 to Mrs. Miller, which, it is to be remembered, is in addition to her equal fifth part with her brothers and sisters. The first is, whether the purchase of furniture by the testator after the date of the codicil, and after her marriage, was an ademption fro tanto of the legacy of $3000. And the second, whether the sum charged in his books against her of $2383.44, the purchase-money of this furniture, is to be charged against her in like manner as the sums standing on his books to the debit of his other nephews and nieces, children of his sister Mary Campbell.

The whole scheme of his will shows the clearest intention of making an equal distribution of the residue of his property between these special objects of his bounty, and any construction of it not producing the result, would most certainly be against his general intention. But I think there is no difficulty in considering the special legacy to Mrs. Miller adeemed by the subsequent purchase and delivery to her of the furniture, to the extent of that purchase. The cases on this subject are clear.

In Ex parte Page, 18 Vesey, 135, Lord Eldon observes, “that, where a father gives a legacy to a child, the legacy coming from a father to his child must be understood as a portion, though it is not so described in the will; and afterwards advancing a portion to that child, though there may be slight circumstances of difference between the advance and the portion, and a difference in amount, yet the father will be intended to have the same purpose in each instance, and the advance is therefore an ademption of the legacy; but a stranger giving a legacy is understood as giving a bounty, not as paying a debt; he must, therefore, be proved to mean it as a portion or provision either on the face of the will, or, if it may be, and it seems it may, by evidence, applying directly to the gift proposed by the will.” The presumed ademption may be destroyed or confirmed by the application of parol evidence of a different intention by the testator: Biggleston v. Grubb, 2 Atk. 48; Ronnell v. Barnett, 3 Atk. 77; Trimmer v. Bayne, 7 Ves. 508; Robinson v. Whitely, 9 Ves. 577; Thilluson v. Woodford, 4 Madd. 420. This doctrine equally applies where the testator has placed himself in loco parentis to the legatee. Where the testator’s assumption of the office of a parent is established, his legacy will be considered a portion, and a subsequent advancement will be an ademption in all cases where it would be so if made by a natural father.

In the extensive class of cases on this doctrine to be found in the Equity Reports, the chief difficulty in its application seems to have arisen from the inquiry, what are circumstances sufficient to invest the testator with the assumed relation of parent to the legatee; and the evidence competent to prove that he placed himself in such character ? Roper declares the test in such cases to be, whether the circumstances taken in the aggregate amount to moral certainty, that a testator considered himself in the place of the child’s father, and as meaning to discharge that natural obligation, which it was the duty of a parent to perform.

The assumption by a person of the relation of a parent to the legatee may be proved by parol, and is not required to be collected from the face of the will itself. The facts existing in this case, clearly show that the testator placed himself in that relation to the.children of his sister, Mary Campbell. On the clearest principles, therefore, the advance for furniture to Mrs. Miller must be regarded as an ademption of her legacy of $3000, to the extent of such advance. The legacy was given chiefly to purchase for her, on her marriage, household furniture; and the money advanced was used for that purpose. So far I agree with the auditor. But, in stating the amount, he has credited Mrs. Miller with the legacy of $3000, and debited her with the furniture, the result is that her portion exceeds that of her brothers and sisters $3000; who, while they are charged with advances made to them, have no such special bequest given. Their advances come from the respective fifth parts of the general residue, while that of Mrs. Miller remains intact, being taken from the special legacy given to her by the codicil of June, 1842, for the purchase of furniture on her marriage. The ademption of a legacy is, more properly speaking, its extinguishment: see Blackstone v. Blackstone, 3 Watts, 337; and if, as has been shown, the advance made to her for the purchase of furniture operates as such ademption, it as effectually extinguishes the legacy to the extent of such purchase, as if it had been ever so formally cancelled and revoked. Instead, therefore, of considering Mrs. Miller as a special legatee of $3000, in addition to her bequest of one-fifth of the residue, the auditor should have stated her amount on the basis of her being a special legatee to the extent of the difference between the sum of $2383.44, the amount of the portion advanced to her for the purchase of furniture, and the $3000 bequeathed to her for the like object. This works perfect equality among the adopted children of the testator; an object he had manifestly at heart. She then stands like her sisters, who had advances made them for similar purposes. They are charged with such advances, and. so will she be. That this was the intention of the testator, is not only clear from the clause in his will which directs all loans and advances made to the children of. his sister, Mary Campbell, appearing in his books, to be charged against them; but from the fact, that the entry against Mrs. Miller is actually made after the date of the codicil, giving her the special legacy of $3000 for furniture after her marriage.

The radical error of the auditor consists in his having given Mrs. Miller credit, in settling the account of the legatees of John Gill, for a bequest which had no existence, and which was extinguished: this being the true idea conveyed by the technical phrase adeemed: Blackstone v. Blackstone, supra. If John Gill, when he purchased the furniture for Mrs. Miller, had, besides charging the sum expended for it against her, by a codicil declared his previous bequest of' $3000 revoked to the extent of his purchase, could this cancelled legacy be credited to her ? Now, the effect of the advance made by him is equivalent to such a formal revocation, and Mrs. Miller stands subject to the general direction of the will, which makes her chargeable with advances made to her, appearing on the testator’s books.

Mr. F. W. Subbell, for exceptants.

Mr. B. Q-erhard, for executor.

The report is set aside to this extent, and the account is ordered to be referred to the auditor, to restate it according to the principles of this decree.

       See Elkenhead’s Case, 2 Vernon, 257; Ward v. Lont, Prec. in Chanc. 182; Watson v. Lord Lincoln, Amb. 325.


author: King, President.

text:
    Commissioners of Moyamensing v. Long.
    The jurisdiction of Courts of Equity in cases of purpresture and nuisance is unquestioned ; although not frequently exercised. It is founded on the right to restrain the exercise or execution of that, from which irreparable damage to individuals, or great public injury, must necessarily arise.
    Purpresture means an encroachment upon the king, as upon part of his demesne lands, or upon rights and easements held by the crown for the public. And this applies to highways, public rivers, forts, streets, public squares, bridges, quays, and other public accommodations. A purpresture may exist without being a general public nuisance. And it may be both. Of this nature are all permanent encroachments on, and occupations of any part of a public street by an owner of lands bounding thereon.
    Beside the ordinary remedy by indictment, an information lies in equity to redress the grievance by way of injunction. As a general rule, the Court will not interfere finally, when a doubt exists as to the character and illegality of the act complained of, until both have been ascertained by a trial.
    It was at one time supposed, that to proceedings in equity in cases of public nuisance, the Attorney-General ought to be a party; but such is now no longer the rule. If there is a special grievance arising out of a common injury, which presses more upon some particular individuals than upon others not so immediately within the influence of it, they are entitled to the interference of a Court of Equity for the protection of their private rights.
    It is competent for a municipal corporation to prosecute a bill in equity, where the injury is an immediate one to the property of the corporation; as obstructions to a public highway in the municipality common to the corporators, and the citizens of the Commonwealth generally.
    The ground of the jurisdiction of Courts of Equity, in cases of nuisance, is, their ability to give a more complete and perfect remedy than is attainable at law, in order to prevent irreparable mischief, to suppress oppressive and vexatious litigation. i
    In this case an injunction was awarded.

      Feb. 3.
    This was a kill in equity, filed by tke Commissioners and

      Inhabitants of the Township of Moyamensing, against Samuel Long. The bill set forth that in the year 1818, the persons owning land, and residing in said district or township of Moyamensing, on application to the proper court, proceeded to the opening of Eleventh Street from Cedar to Federal, and that the same was declared to be a public street and highway within the corporate limits of said district and township. The bill described the courses and distances of said Eleventh Sreeet thus opened, and its width, and the building lines on and along the same, as established by law.
    It then stated that Long, the respondent, was the pretended owner, and then in the possession of a lot of ground, situate on said Eleventh Street, describing the same ; and that he had commenced the erection thereon of a building; the wall whereof, in front, had been laid out so as to contain three and a half inches of said Eleventh Street, and intended, or appeared to intend to carry on the front wall of said building, three and a half inches in advance of the building line of said street, and to enclose in said wall the whole three and a half inches of said Eleventh Street; that, by the erection of the wall of said building in advance of the building lines of the public street, and over them, the complainants would be materially injured, and the property of the inhabitants in the vicinity thereof greatly diminished in value, and the windows of their houses darkened, and the occupiers and tenants thereof deprived of the air and light which they had heretofore enjoyed, and the corporation debarred from the free use of said street its whole width, which they had a legal right to use, occupy, and enjoy.
    The bill also stated that the complainants had applied to Long, requesting him not to proceed in erecting said wall, but that he refused to desist therefrom, and intended to build the same up to the height of three stories.
    That he pretended that the soil of said parcel of ground belonged to him, and that he had the right to build upon the same, which the plaintiffs charged to the contrary, and that he had no right to build upon a public street and over the lines thereof, and thereby prevent the lines of the same from corresponding with other parts of said street.
    The bill prayed that- the defendant be compelled to disclose his knowledge in relation to the street; also for an injunction, restraining him from proceeding to build upon the premises of the street as described in the bill, and over the established lines of the street and highway.

      To this bill the defendant filed an answer, saying that he did not know that the said street was declared a public highway, as set forth in the bill; admitted that he was erecting a building three stories high, and denied that the front wall of said building was upon said Eleventh Street, three and a half inches over the line thereof, but alleged that the building was upon the line of the street, and not in advance thereof, and that the' respondent was not taking any part of the said street and public highway.
    The cause was heard on bill, answer, and proofs. The evidence was clear and conclusive, that the building was three and a half inches over the line of the street, and so far on it.
    The case wras argued by 8. H. Reed and II. R. Hneass for plaintiffs, and W. L. Hirst for the defendant.
   The opinion of the Court was delivered by

King, President.

This bill, which is filed by the commissioners of the incorporated district of Moyamensing, complains that, at the time of the suing out of the subpoena, the defendant was obstructing Eleventh Street, in that district, by erecting a dwelling-house on his lot bounding on said street, the front wall of which house encroached 3J inches thereon. The answer distinctly denies the charge, but the proofs completely establish the plaintiffs’ case. The relief prayed for at the hearing, was an injunction against the further prosecution of the work. The first question raised in the case, is as to the jurisdiction of the Court over the subject-matter of dispute. The jurisdiction of Courts of Equity in cases of purpresture and nuisance, though not frequently exercised, seems undoubted. It is said to be founded on the right to restrain the exercise or the erection of that, from which irreparable damage to individuals, or great public injury, must necessarily ensue: Eden on Injunc. chap. 11, p. 259; 2 Story Equity, 201, § 921, et seq. Jeremy’s Eq. Juris, book 8, ch. 2, § 1. By purpresture is meant an encroachment upon the king, either upon part of his demesne lands, or upon rights and easements held by the crown for the public, such as upon highways, public rivers, forts, streets, squares, bridges, quays, and other public accommodations. A purpresture nmy exist without being an actual general public nuisance, although it may be both. And of this nature would seem to be all permanent encroachments on, and occupations of any part of a public street, by an owner of land bounding thereon. Besides the ordinary remedy by indictment, an information lies in equity to redress the grievance by way of injunction. The case of the Attorney-General v. Richards, 2 Anstruther, 603, 606, is one of this kind. There such an information, complaining against the defendant for having erected a wharf or quay, two docks, and other structures between high and low water marks, in Portsmouth Harbour, near Gosport, so as to prevent boats or vessels from sailing over the spot, or mooring there, was entertained, and a decree pronounced directing the abatement of the obstruction. See also Attorney-General v. Johnson, 1 Wilson Ch. Rep. 87. Lord Hardwicke, in Ambler, 104, mentions the case of an information, filed by the Attorney-General, to restrain the stopping up a highway behind the Royal Exchange. The jurisdiction in these cases is supposed by Eden to have been maintainable on the ground of the acts complained of being public nuisances, even although not purprestures; the interposition in cases merely of public nuisances, being by no means a modern branch of equitable jurisdiction: Eden, 262.

The chief objection usually urged against such an exercise of jurisdiction by chancery, arises from the quasi criminal nature of the grievance sought to be remedied, and the direct tendency the entertaining such a bill must have, to deprive the party charged of his trial by jury. As a general rule, however, the Court will not interfere finally, where a doubt exists as to the character and illegality of the act complained of, until both have been ascertained by a trial: Attorney-General v. Cleaver, 18 Ves. 218. The mode of obtaining a verdict in cases of this kind, where, although no doubt exists as to the plaintiff’s title, yet, where the Court wishes to be satisfied further of the fact of the alleged nuisance, is by giving the plaintiff an opportunity of prosecuting an indictment, and granting an injunction in the mean while, with such qualifications as will, whatever,may be the event, be as little prejudicial as possible to the rights of the defendant: Attorney-General v. Cleaver, 18 Ves. 211; Crowder v. Tinkler, 19 Ib. 617. Where the plaintiff’s title is doubtful (Wynstanly v. Lee, 2 Swanst. 335), or, the Court is in its conscience satisfied that the case is not one of nuisance, according to the legal acceptation, it will not interfere even to put the question in a course of trial: Dick. 163; Attorney-General v. Nichol, 16 Ves. 341. But, in a plain case of public nuisance, the Court will interpose and determine the question without a trial by jury. In the Attorney-General v. Richards, 2 Anstruther, 615, the Chief Baron, delivering the opinion of the Court, observes on this point as follows: “ But it is argued that the prayer of the bill being to abate tie erections as a nuisance, the Court can only consider that question, as alone supporting the relief prayed for; and it is contended that this Court cannot give such a decree, or, at least, not without a trial by jury; the question of nuisance being, as laid down by Lord Hale, a question of fact and not of law. That may he, where the question is of nuisance and the evidence doubtful. But the cases cited, and those which Lord Hale has given us, clearly prove that where the king claims and proves a right to the soil, where a purpresture and nuisance have been committed, he may have a decree to abate it.” In the Attorney-General v. Forbes, 2 Mylne & Craig, 129, 130, Lord Cottenham said, “ With respect to the question of jurisdiction, it was broadly asserted, that an application to this Court to prevent a nuisance on a public road was never heard of. A little research, however, would have found many such instances. Many cases might have been produced in which the Court has interfered to prevent nuisances in public rivers and public harbours.” In the Attorney-General v. Johnson, 2 Wilson’s Ch. Rep. 87, on an information of the Attorney-General at the relation of an individual, and a bill by the relator, the Lord Chancellor granted an injunction ex parte, on affidavits to restrain a purpresture in the river Thames, and it appearing that there had been no previous writ of ad quod damnum, and that an indictment was pending in the King’s Bench against the defendant for the same act, the Lord Chancellor refused to dissolve the injunction before trial of the indictment. In the Earl of Ripon v. Hobart, 1 Cooper, Sel. Cas. 333, Lord Brougham remarks, that “Lord Eldon appeared at one time to think that there was no instance of an injunction to restrain a nuisance without a trial. But though this cannot now be maintained, it is clear that in other cases where there appeared a doubt, as in Chalk v. Wyatt, 3 Mer. 688, the injunction was said only to be granted because damages had been recovered at law.” In the same case he observes, “Where the thing sought to be prohibited is in itself a nuisance, the Court will interfere to stay irreparable mischief without waiting for the result of a trial; and will, according to circumstances, direct an issue or allow an action, and, if need be, expedite the proceedings; the injunction being in the mean time continued. But where the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, then the Court will refuse to interfere until the matter be tried at law, — generally by an action, though in particular cases an issue may be directed for tbe satisfaction of tbe Court, where an action could not be framed so as to meet tbe question.” In tbe United States this jurisdiction bas been generally exercised by Courts of Equity. The Trustees of Watertown v. Cowen, 4 Paige, 510, is a case in which a bill was entertained to restrain tbe erection of a nuisance on a public square. In tbe Attorney-General v. Blount, 4 Hawk. Rep. (N. C.) 384, a decree for a perpetual injunction to restrain tbe erection of a nuisance, which would endanger tbe health of tbe town of Tarborough, was made on a bill filed by tbe Attorney-General and tbe inhabitants of tbe town jointly. In the Mohawk Bridge Company v. The Utica and Schenectady Railroad Company, 6 Paige, 563, the Chancellor adopts the principles on which the Court proceeds in granting or refusing relief in such cases, as laid down by Lord Brougham in Ripon v. Hobart. Again, in the Attorney-General v. The Cohoes Company, 6 Paige, 133, the Chancellor declared, that “the Court has jurisdiction to restrain any purpresture, or unauthorized appropriation of the public property for private uses, which may amount to a public nuisance, or may injuriously affect or endanger the public interestsand he refused to dissolve an injunction granted before final hearing.

At one time an impression seems to have prevailed, that, to proceedings in equity in cases of public nuisances, the Attorney-General ought to be a party. But this idea no'longer governs: If there is a special grievance arising out of a common injury, which presses more upon particular individuals than upon others not so immediately within the influence of it, they are entitled to the interference of a Court of Equity for the protection of their private rights: Eden on Injunctions, 268 (Wheeler’s edition). In Spencer v. The London and Birmingham Railway, 8 Simons, 193, the Vice-Chancellor Shadwell overruled a demurrer to a bill filed by individuals for relief against an alleged public nuisance to a public street on which they "owned or occupied property, access to which was intercepted by the works of the railway. “ With respect to the nature of this grievance,” says the Court, “all the inhabitants of Granby Mews suffer a species of injury quite distinct from that done to his majesty’s subjects in general.” In Sampson v. Smith, Ib. 272, the Court entertained a bill for the suppression of a public nuisance, filed by an individual, and decided that the Attorney-General was not a necessary party to such bill: Corning v. Lowere, 6 John. C. R. 439, is determined on the same principle; as is Roper v. Randolph, 7 Porter, 238, (Ala.) The doctrine that a Court of Equity will take jurisdiction in case of a public nuisance, at the instance of a private person, where he is in imminent danger of suffering a special injury, is also admitted in the City of Georgetown v. The Alexandria Canal Company, 12 Peters, 98-9.

But a question, and one not without difficulty, presents itself in this case: to wit, whether a municipal corporation, like the plaintiffs, is competent to prosecute such a bill where the ground of relief is not an injury to the immediate corporation property, but against obstructions to a public highway in the municipality, common to the corporators and the citizens of the Commonwealth generally. Reasoning from convenience, it appears most fitting, .where an encroachment is about to be made on a public highway, within the municipality, that the public authorities of the corporation should possess the right to guard the community they represent from such an evil, and for that purpose to come into the Commonwealth’s Courts for aid in behalf of their constituency. Where such an encroachment is made on a principal avenue of the municipality, such, for instance, as Broadway in New York, or High Street in Philadelphia, the injury to the whole community may quite equal that of the inhabit-ancy of the immediate vicinage, which latter are admitted to be. competent parties to ask relief in equity against the nuisance: Sampson v. Smith, 8 Simons, 272. In whom can the authority to vindicate such rights be so well reposed, as in the chosen organs of the whole community ? The regulation of public streets; their pitching and paving; the prevention and removal of all obstructions to their convenient public use: are among the chief objects of all municipal corporations. Por these purposes these corporations are clothed with authority to enact ordinances, punishing, with forfeitures and penalties, all occupations of public streets interfering with the free public use of them. Under these grants of authority (possessed also by these plaintiffs), our cities and towns corporate are in the continual exercise of a most useful jurisdiction. It does not seem a forced inference from such express powers given to a corporation, to hold, that, by necessary implication, they also possess the right on behalf of the-municipality to come into the Commonwealth’s Courts for relief and protection when an encroachment on a public street is committed or threatened, which it is beyond their expressly granted powers to‘vindicate or arrest. Such a right apparently flows from the very end and object of the creation of the corporation. Such implications are not strangers to the common law. Thus it has been held, that if the king creates a corporation, and does not give any express powers in the letters patent to make laws, yet this power is incident to the corporation and included in their incorporation; for a body politic cannot he governed without laws: 2 Bac. Abr. 9 (tit. Corporations).

But we' are not without judicial authority recognising the competency of such a plaintiff in equity in a proceeding, having for its object the arrest and'suppression of a public nuisance, established or threatened within the limits of the corporation. In 1799, in the case of The Mayor, Commonalty, and Citizens of London v. Bolt, 5 Vesey, Jr. 129, Lord Rosslyn granted an injunction against an individual who was storing sugars in certain old houses in London, which, owing to their want of strength, threatened, from the danger of their falling down, the inhabitants of the vicinity with injury. The idea that the corporation of London was not a competent party to the Suit, from the want of a special interest affected by the nuisance, does not appear then nor since to have suggested itself to anyone. The case of The Trustees of Watertown v. Cowen, 4 Paige, 510, was that of a bill filed by a village corporation to restrain the defendant from proceeding in the erection of a building which he had commenced, and which occupied part of a public street, called Mill street, and part of a public square, which was said to have been dedicated by the original proprietor of the village to public use. It was among other things objected, that the suit was not properly brought in the name of the corporation. The Chancellor, admitting that the usual mode of proceeding in equity to restrain the establishment of a nuisance, or other unwarrantable intrusion upon, or interference with, the rights of the public, was by information in the name of the Attorney-Greneral, overruled the objection, considering the corporation as properly representing the inhabitants of the village. When we consider the efficacy of this jurisdiction, and the public good that may flow from its prudent and guarded exercise, in a commonwealth containing the populous and prosperous urban communities of Pennsylvania, we feel reluctant in narrowing the remedies for the infraction of public rights, so beneficially exercised by Courts of Equity over purprestures and public nuisances. The nature of this jurisdiction, the plastic manner in which its remedies can be applied to meet all the phases such cases may assume, manifest it to be among "the most useful of the conservative functions of the Court. They are so well and so clearly described by Judge Story, Equity Jurisp. vol. 2, § 924, that we cannot illustrate our views on the subject better than by quoting the section previously cited.

“The ground of jurisdiction of Courts of Equity, in cases of pur-presture as well as public nuisances, undoubtedly is their ability to give a more complete and perfect remedy than is attainable at law, in order to prevent irreparable mischief, and also to suppress oppressive and vexatious litigations. In the first place, they can interpose where courts of law cannot, to restrain and prevent such nuisances, which are threatened or in progress, as well as abate those already existing. In the next place, by a perpetual injunction, the remedy is made complete throughout all future time: whereas an information or indictment at common law can only dispose of the present nuisance, and for future acts new prosecutions must be brought. In the next place, the remedial justice in equity may be prompt and immediate, before irreparable mischief is done; whereas, at law, nothing can be done, except after a trial and upon the award of judgment.” It is true that, in one instance, the competency of a municipal corporation to come into a Court of Equity as an exclusive plaintiff, complaining of a purpresture committed on a navigable stream, has been questioned: Georgetown v. The Alexandria Canal Co., 12 Peters, 98-9. The direct question, however, in that case was, whether such a corporation, from the mere fact of its location on the banks of the river Potomac, which divided contiguous states, was the proper party to a bill, alleging that an improvement company, chartered by Congress, had made encroachment on the free navigation of the stream, in exercising the authority given to it by its charter. The free navigation of the river had been the subject of a compact between the states of Maryland and "Virginia, before the cession of the District of Columbia by those states to Congress, and the sovereign authority possessed by them, antecedent to the cession passed to Congress over that part of the river, within the ceded territory, subject to the limitations of the Act of Cession. In a case so circumstanced, the question of excess of power, in the charter, would seem specially to pertain to the sovereignties conterminous to the stream, and the question of abuse of franchise, to that from which the functions of the incorporation had been derived. The agitation of such grave questions hardly seems competent in a local municipality, deriving its interest in the stream from mere contiguity. In the English cases of purprestures, committed in ports, havens, or navigable streams, the Crown was either the exclusive or a joint party in the procedure: Attorney-General v. Richards, 2 Anstruther, 603-6; Attorney-General v. Johnson, 1 Wilson, Ch. R. 87. The actual point decided, therefore, in Georgetown v. Alexandria, is in harmony with principle and precedent. But some of the doctrines broached on it do not seem in entire concord with the opinions of the English and American Courts of Chancery, as expressed in the adjudications already cited and remarked upon. It may, in this connexion, be observed that neither the case of the Mayor of London v. Bolt, nor the case of the Trustees of Watertown v. Cowen, are noticed by counsel or court; most probably because the case rested on broader principles, and did not turn on the mere question whether a municipal corporation was a proper party to a proceeding, seeking to prevent the erection of a permanent nuisance in one of its public avenues. The case before us, however, arises from an encroachment on a street within the admitted limits and corporate jurisdiction of the plaintiffs, and in such a case we have, in support of our jurisdiction, the authority of the English and New York Chancery; and the question being res nova in Pennsylvania, and the public benefit to be derived from the jurisdiction so obvious, we think it better to follow these latter precedents, without, however, calling in question the authority of the case of Georgetown v. Alexandria, on the direct point decided by it.

The Act of 1836, from which our authority in the premises is derived, gives the Court the power and jurisdiction of a Court of Equity, inter alia, “ for the prevention and restraint of acts, contrary to law, and prejudicial to the interests of the community, or rights of individuals.” This is a grant of jurisdiction tantamount and analogous to that exercised by Courts of Equity over nuisances and trespasses, which was the jurisdiction intended to be given. There must be a decree for a perpetual injunction.