author: Gibson, C. J. Huston, J.

text:
    HENRY DIETRICH against MICHAEL DIETRICH, and ANDREW YUNDT.
    IN ERRORs
    A deposition taken in the Register’s Court, upon hearing of any cause litigated in that court, but not decided, is not evidence upon the trial of an issue between the same parties, directed by that court, without proof that the deponent is dead, out of the jurisdiction of the Court, or unable to attend:

      Query. Whether the decision of the trying court upon the preliminary proof of the inability of the witness to attend is the subject of error?

      Query. Upon an issue druisavit vel non, are the declarations of a devisee, who is a party to the issue, evidence, where there are other ■devisees or legatees not parties?
    Writ of error to the Court of Common Pleas of the county of Lancaster.
    This was an issue of devisavit vel non on an instrument of writing, purporting to be the last will and testament of Philip Dietrich, deceased.
    That paper contained a devise of one tract of land to Henry Dietrich, and another to his sons Adam and Samuel, charged with legacies which were bequeathed to the testator’s son Michael, and his two daughters, Barbara-, wife oí Andrew Yundt, and Christiana, wife of Jacob Shaeffer.

      Henry Dietrich and Christian Herr were appointed executors, and the paper was witnessed by Michael Rudicil, John Kurtz, and Philip Gloninger. It was not received to probate; but on the caveats of Michael Dietrich and Andrew Yundt, this issue was directed on the IRth of October, 1816. The case had been tried several times before, and is reported in 5 Serg. ¿y Rawle, 207.
    On the present trial, the following bills of exception were taken ■on the part of the plaintiff, who, the verdict and judgment being against him, brought this writ, of error.
    First bill of exception. — After eleven of the jurors for the purpose of trying this cause had been called, and were in the box, an application was made by the plaintiff for its continuance; upon which application Henry Dietrich, the plaintiff being duly sworn according to law, among other things, testified that he had not subpenaed Mr. Gloninger, but that he went last week to Mr. Gloninger’s house with a subpena in his pocket for Mr. Gloninger, (which he now produces, prout the same.) He told Mr. Gloninger he had a subpena in his pocket for him to attend on Monday last, and had come to subpena him. Mr. Gloninger replied that it was not worth while for him to do so, he could not attend, his deposition had been taken, and they must be satisfied with that. After plaintiff had given all his testimony on the motion to continue, the defendants called Adam Metzgar, a witness who testified, that he had this morning signed his name as a witness tó the will of Philip Gloninger, 'that Mr. Gloninger sent for him, and that he thought him very well, better than he had been. Whereupon, the court decided, that they would not continue the said cause. The cause being at issue, the jury were then sworn according to law,-arid thé plaintiff to maintain the issue on his part, offered in evidence the deposition of Philip Gloninger, taken before the Register’s Court of the county of Lancaster, in the cause in which this issue is direct-ed, on the 19th October, 1816.-
    The plaintiff then called Dr. John Miller, as a witness; who, being duly sworn according to law, testified as follows: “ Philip Gloninger might be able to come to court,- but I don’t believe he would be able to go through all the testimony in his .present situation. He has got an asthmatical affection of his breast; on account of which he cannot rest at night, and has not rested any for several weeks. He has also had a slight bilious affection last week; that, together with his former' complaint has weakened his mind considerably, from which hé' has become a little nervous, and would be unable to attend’ am examination.- An examination might excite his vascular system, and it might bring on either slight apoplexy or a state of syncope, as I have seen him once or twice.” Question, “Would,-Or would not an examination be dangerous to his life?” “ In- this way if might be considered so. I saw him last, between nine ánd ten o’clock this morning, I saw him before that yesterday in the forenoon. I consider him rather better to-day.- I have had no conversation with him respecting wills — but he seemed very anxious, and told me he wished to be better, he had about half a dozen lines to write respecting his own family, and he would be satisfied^ He told me he was seventy-four years of age.” Question, “ Plow long has he been in his present situation?” “ The chief part of this summer, affected with the asthmatical affection.” Question, “ Would not the gentlemen have been enabled to take his deposition at any time during the present summer?” “ I don’t doubt but they might.” Question, “ Might it not have been taken a month ago?” “I have not paid such attention as to the time, to say how he was a month ago: I expect it might have been taken, with safety, six weeks ago. I know nothing of his making his will this morn-ing, except what I heard in court, I have never known of a person having syncope from asthma in court — no, nor reading of one. His vascular system is very much excited at present; and there is a probability of its happening from the predisposition of the system. His pulse is always full and strong — I believe it is very rare that apoplexy has been occasioned by asthma. His strong pulse is occasioned by a spasmodic affection of the lungs. He commonly passes the day tolerably easy, but at night rests none, except sittings üp, and never rests an hour at a time. It is possible he might answer half a dozen questions here, and possibly not. No one can tell what effect it might have. The heated atmosphere here would be very exhausting to him — to stand such an examination and cross-examination for two hours would raise his pulse. He is a choleric man; and I would suppose it would have the effect of operating on his brain.”
    The plaintiff offered his deposition in the Register’s Court, and the minutes of the Register’s Court.
    The defendants then called John Getz as a witness, who being duly sworn according to lawr testified as follows: “It was between 9 and 10 o’clock this morning I saw Philip Gloninger, and I think his state of mind was as good as ever,, only that he was very weak. In his writing room or office I saw him, he was sitting on the chair. I saw him looking over his will, and he altered some of the writing; rectified it. I and Mr. Dijfenbaugh and Mr. Adam Metzgar were the witnesses to his will. He executed the will before us. He would be able at home, I suppose, to give testimony; since this morning I have not seen him — he would have been this morning.”
    Question, “ What is the nature of his complaint?” “ Dr. Miller can tell. I have seen him so that he could not rest five minutes on account of his breath; and he said he got giddy in his head, and he said he was so very weak. If he would be as he was a couple of days ago, he could not have been examined and cross-examined for two hours. This morning between nine and ten o’clock, may be he could have stood it a quarter of an hour or so, but how much longer I could not say.” Question, “ What would be the effect of bringing him here and examining him two hours?” “ I can’t say.” Question, “ Could he stand at all?” “ I hardly think he could: I have seen him some days when he could not.”1 Question, “ Don’t you think, it would be a great danger to his health.” “It might be a .danger to his health.” Question, “Iiow long was he occupied in looking over his will?” “ Not long — asked me to call Mr. Diffe?ibaagh — it might be between ten and fifteeen minutes; he looked over it, and took his knife and scratched a little, and then said it was right. I don’t take it that he is getting better: he says he is not: said he could not rest at night, nor. had not for some nights. I have not seen him out of his house for near three weeks; he did not speak so much; he was sitting, and fell asleep, and did not hear some words I think — he has been in the habit of falling asleep for some years; that iá when he set long — he has a spring machine to put behind him in bed, borrowed of Mrs. Yeates; I mended it.”

      Porter read the record of this suit, by which it appears, that on the former trials, Mr. Gloninger was the first witness examined by the plaintiff

      The counsel of the defendants then objected to the admission of the said deposition of Philip Gloninger, taken before the said Register’s court, in evidence; and after argument, the court sustained their objection, and overruled the same: to which opinion of the court the counsel for the plaintiff did except, and pray the court to seal this their bill of exceptions, which is done accordingly.
    Second bill of exceptions. — The counsel for the plaintiff, after the foregoing bill of exceptions was sealed, offered to prove as follows:
    “ The plaintiff to maintain the issue on his part, offered in evidence the caveat of Michael Dietrich and Andrew Yundt, against the probate of the instrument of writing now on trial; the proceedings of the Register’s court thereupon, previous to the direction of the issue, [and. to prove that Philip Gloninger, the person who drew the said instrument of writing, and who is a subscribing witness thereto, although regularly subpenaed, cannot attend on account of bodily and mental infirmity; that both his body and mind are so diseased and impaired, that he cannot now be examined as a witness, either at his own house or in court, nor could he have been for the last three weeks,] and we offer in evidence the deposition of Philip Gloninger, taken before the Register’s Court on the 19th October, prout the same.”
    To this testimony, the counsel for the defendants made the following objection in writing: “The counsel for the defendants object to so much of the said offer as would permit the giving in evidence of the depositions, or - any of them, taken in the Register’s Court.”
    The .counsel for the plaintiff then read in evidence the caveat of Michael Dietrich, dated 16th September, 1816, and the caveat of Andrew Yundt, dated 17th September, 1816, and the record in the Register’s court in the cause in which this issue is directed, dated 19th October, 1816.
    The counsel for the defendant then stated that they did not object to so much of the said offer as is included in brackets; but that they did object to the remaining part of the offer, to wit: the part of it which follows the brackets.
    The part within brackets not objected to, and therefore allowed by the court, but at the same time the court overruled the said deposition of Philip Gloninger, taken before the Register’s Court, on the 19th October, 1816. To which opinion of the court, overruling the said deposition, the counsel for the plaintiff did except, and pray the court to seal this bill of exceptions, which is done accordingly.
    Third bill of exceptions. — The cause being at issue and the jury sworn, prout the record, the plaintiff, to maintain the issue on his part, gave in evidence, amongst other things, the instrument of writing purporting to. be the last will and testament of Philip Die-
      trick, deceased, the validity of which is on trial in the present cause, bearing date the thirteenth day of April, one .thousand eight hundred and sixteen.
    After the plaintiffs had rested, the defendants, among other things .having read the deposition of Elizabeth Lechler, to maintain the issue on their part, offered in evidence the deposition of Lydia Cur-ran, taken before Samuel Carpenter, Esquire, the 13th day of March, 1820, and filed of record in this cause.
    The plajntiffobjected to that part of said deposition, a copy of which follows:
    “ I also lived at Henry Dietrich’s a little better than two months: when he would come home, his wife would ask him ‘ how is the old .man? — he would say, ‘ he is childish and childisher every day.”
    The court overruled the said objection of the plaintiff’s counsel, and admitted the said part of the deposition to be read; to which opinion of the court the counsel for the plaintiff did except, and pray the court to seal this their bill of exceptions, which is done accordingly.
    Fourth bill of exceptions. The cause being at issue, and the jury sworn, prout the record, the plaintiff after having given in evidence, .among other things,The instrument of writing purporting to be the last will and testament of Philip Dietrich, deceased, dated 30 th April, 1816, rested. The defendants to maintain the issue on their part, offered in evidence the deposition of James Lowe. The plaintiff objected to that part of the said deposition which follows, to wit: This 'deponent further heard Henry Dietrich, the plaintiff in this suit, say to this deponent that the said Philip Dietrich was childish and doted; this was about two years ago, as near as this deponent can recollect, he knows that it was about that time, as it was just before the election in the fall of the year 1815, that this deponent moved away from where he lived near the said Philip Dietrich’s, and what he has above deposed to, happened during the said year.
    The court overruled the said objection of the plaintiff) and permitted that part of the said deposition tobe read, to which opinion of the court the counsel for the plaintiff did except, and pray the court to seal this bill of exceptions, which is done accordingly.
    Fifth bill of exceptions. The cause being at issue, and the jury sworn, prout the record, the plaintiff having examined John Kortz, one of the subscribing witnesses to the alleged last will and testament of Philip Dietrich, deceased, and given in evidence the deposition of Michael Rudisill, gave the said will in evidence and rested. The defendants then gave their testimony in chief to the jury; and, among other things, examined several witnesses, who testified to the general good character of Elizabeth Dietrich, the wife of Michael Dietrich, one of the defendants. The plaintiff then proceeded to give his repelling testimony in evidence, and among other things proved by John Landis, that Elizabeth Russell, a witness who had been examined in behalf of the defendants, in the year 1817, or 1818, at his house said, that Michael Dietrich, jr. the son of one of the defendants, was at her; they wanted her to give such evidence as they wanted ; that they promised her some furniture if she would do so, but she said she was not going to do it. She said the old man had his senses to the last hour; she said she would not take a false oath for Michael Dietrich, or any body else. The plaintiff also proved by Elizabeth Dietrich, that the said Elizabeth Russell, had told her that the said Michael Deitrich, jr. (who had also been examined as a witness in behalf of the defendants,) had been at their house, and had wanted her to swear on their side, and had promised her a table and a half a dozen chairs, and half a dozen cups and saucers and plates, to do so. The plaintiff then afterwards examined Margaret Flick as a witness, who testified as follows: Mrs. Dietrich, (the wife of Michael Dietrich the defendant) told me to tell Betsey Russell to come in; she had a house-tire for her. It was some time after the old man’s death. Betsey Russell came in one Sunday afternoon. Mrs. Dietrich sent word down by Rebecca Dietrich, her daughter, for me and Betsey Russell to come up. I told her I did not like to go up, and she went home. She came back directly again, and told us we must come up. I told her then again, I did not like to go up.. She told me then, we should come up— we could go in the back way — that she had a key to the garden gate. Then Rebecca did not go till we went along. Mrs. Dietrich asked me what was the reason why we did not come'( I don’t recollect what I said. She told Betsey Russell then, she had some cups and saficers for her ; half a dozen of china, and half a dozen of plates, two butter plates and a cream jug. She told me then we should take them along: I told her then 1 did not like to take them along because it was Sunday. Then I told her I would go out to Adam’s on Monday morning — I was working there then, and would take them along to Betsey Russell. On Monday morning I went up to Michael Dietrich’s with a basket, to take the cups and saucers and plates to Betsey Russell. Mrs. Dietrich put them in the basket for me, and told me to tell Betsey Russell, that if Adam Dietrich’s family did not use her well, she should come in and live with them, that she would give her house room, and charge her no house rent. When I came out to the house, I told Betsey Russell this: She told me then, that she knew very well what they wanted. She told me then, she would not go there at all; they were going to take her in to go on their side.”
    The plaintiff then, further, to maintain the issue on his part, offered to prove by the said Margaret Flick, that the said Elizabeth Dietrich, (the wife of Michael Dietrich,) attempted to bribe her, the said witness to swear that old Philip Dietrich was out of his senses. The counsel for the defendant objected to the admission of the said ¡testimony; and the court, after argument, sustained their objection and overruled the same: to which opinion of the court, the counsel for the plaintiff did then and there except, and pray the court to seal this bill of exceptions — which is done accordingly.
    The plaintiffs in error assigned the following errors:
    1. There is error in the first and second bills of exception; inasmuch as the court ought to have permitted the deposition of Philip Gloninger, taken before the Register’s Court, to be read in evidence to the jury.
    2. Jhere is error in the third bill of exceptions, inasmuch as the court permitted that part of the deposition of Lydia Curran, which was objected to by the counsel of the plaintiff, to be read in evidence,
    3. The court erred in permitting that part of the deposition of James Lowe, tobe read in evidence, which was objected to by the counsel for the plain til!, and which is the subject of the fourth bill of exceptions.
    4. The court erred in refusing to permit Margaret Flick, under the circumstances stated in the fifth bill of exceptions, to testify, that Elizabeth Dietrich, the wife of Michael Dietrich, attempted to bribe her to swear that old Philip Dietrich was out of his senses: and therefore, there is error in the fifth bill of exceptions.

      Buchanan for the plaintiff in error.
    First error. The depositions of the subscribing witnesses to the will were reduced to writing by the Register’s Court, under the act of assembly ofthe 13th April, 1791. Purd. Dig. 703, the 18th section of which requires that the depositions of the several witnesses examined before that court, shall be taken in writing, and made part of the proceedings in the cause, and makes these depositions evidence upon an appeal.
    They are part of the record, and taken with more care then could be had under any other circumstances ; and in the present case they were taken upon a full cross examination. Philip Gloninger, the witness, whose deposition the plaintiffs offered, was a man of 74 years of age, in extremis, and his inability to attend, established by the testimony of his attending physician; and yet the court rejected his deposition. It could not be on the ground that there had been a failure to prove the inability of the witness to attend, that the deposition was overruled. To that point the proof was full. Nor can it be the law, that the judge who tries the cause, has upon this preliminary question the right to decide conclusively, and without review. The syllabus which states this principle is not supported by the case. Voris v. Smith, 13 Serg. Sp Rawle, 334. It must be a clear case, we admit, which would justify this court to reverse on this ground. He referred also to Vincent v. Huff, 8 Serg. Sp Rawle, 381, 387.
    ' But it is apparent on the second bill of exceptions, that the deposition was not rejected for any defect of proof on this point Upon that bill we offered to prove the absolute inability of the witness to attend.
    When an issue is directed by a court of chancery to a court of law, to which this is analogous, it was never heard that a deposition which had been taken in the cause in chancery, and passed publication, could not be read. This deposition is taken in the most solemn form, and by the act of assembly is made part of the record. Logan v. Watt, 5 Serg. Sf Rawle, 212. Dornick v. Reichenbach, 10 Serg. Rawle, 84. He referred also to the case of Sholly v. Diller, decided at Chambers!)urg* and not yet reported.
    Second and third error. The question presented oh these bills is whether the declarations of Henry Dietrich, one of the devisees, who was a party to the issue, can be received in evidence to effect the interest of the other devisees. He contended they could not. It was so decided by the Supreme Court of the state of Massachusetts, in the case of Phelps v Hartwell, 1 Mass. Rep. 71; and the same principle is recognized in the case of Bovard v. Wallace, 4 Serg. fy Rawle, 499, and the very point is decided in Nussear v. Arnold, 13 Serg. Rawle, 323. Nussear was a nominal party, being the agent of the party in interest, and the declarations offered were those of the real party whose agent he was. The court placed the decision of that case on the true ground, that the declarations of one devisee shall not be received to destroy the interest of others. Fenn v. Read, 1 Yeales, 87. The furthest courts have gone upon this subject, is to admit the declarations of a trustee, party on record, to effect the cestui que trust. 2 Starkie’s Ev. 39, 40, 4L But the declarations of an executor before he became such are not evidence. 4 Con, Rep. 544. These declarations of Henry Dietrich,• were made in the life time of the testator.
    Fourth error. The wife of the defendant was active in corrupting the witness of the plaintiff, she united with him in a conspiracy to effect this object, and proof should been received of her attempt to bribe the witness.

      Porter for defendant in error.
    There is no question but that evidence may be given of what a witness swore on a former trial between the same parties, ifhe be dead, or reside out of the state. Magil v. Caufman, 4 Serg. Rawle, 319. Lightner v. Wike, Id. 203. Carpenter v. Groff, 5 Serg. Rawle, 162. Chess v. Chess, 17 Serg. Sf Rawle, 409. Admit, for the sake of argument, that a deposition taken before the Register’s Court is upon the same footing, still the plaintiff did not bring himself within the rule. Ottinger v. Ottinger, 17 Serg. fy Rawle, 142.

    This rule has not been extended to a witness residing within the jurisdiction of the court, however infirm he may be, Richardson v. Stewart, 2 Serg. If Rawle, 84. So no person can be admitted to prove a deed, until it appear that the subscribing witnesses are dead, or not to be had. Peters v. Condron, 2 Serg• Rawle, 80. Here the issue had been pending for eight years, during which the party might have taken the deposition of the witness, and he should have taken it.
    The court below decided, that the evidence of the inability of the witness to attend was insufficient, and this was the ground on which the deposition was rejected. Their preliminary inquiry, he contended, was exclusively for the trying court, and was not the subject of error. Vincent v. Huff, 8 Serg. Sf Rawle, 311-7» Voris v. Smith, 13 Serg. Sf Rawle, 334. Harwood v. Ramsey, 15 Serg. Rawle, 32.- Dodge v« Peifer, 16 Serg. Sf Rawle, 214.
    The court below have the witnesses who prove the preliminary matters before them, and can best judge of the degree of credit to be attached to their testimony. So where a trying courthave had some evidence of a paper having been lost, the admission of ■ secondary evidence of its contents will not be error, nor will a court of error inquire into the preliminary evidence. Leazure v. Hillegas, 7 Serg. Rawle, 323.
    Second and third Error. Henry Dietrich was the party in the cause, and this circumstance distinguishes this case from all the cases relied on on the other side. In Lightner v. Wike, 4 Serg. Sf Rawle, 203, and Bovard v. Wallace, 4 Serg. Rawle, 499, the declarations were decided not to be evidence, because not made by the party to the suit.
    'The same remark applies to the case of JVussear v. Arnold, 13 Serg. Sf Rawle, 323. It was expressly put upon this ground by the counsel who argued the case, and any general remark made by Chief Justice Tilghman, in delivering the opinion of the court, applicable to the case of the declarations of a party to the suit, who is devisee under the will, is a mere obiter dictum. So an admission contained m the recital of a deed by one of the lessors of the plaintiff, is evidence against all, as he could not be called as a witness, and there is a community of interest among them. Brandt v. Klein, 17 Johns. Rep. 335. So a. declaration or confession of one of the lessors of the plaintiff in ejectment is evidence against all of them. Jackson v. M‘Vey, 18 Johns. Rep. 330.
    If the declarations of the party on record are not evidence, then mo evidence can in any shápe be obtained as to his knowledge, for he cannot be called as a witness. But the confessions and admissions of a party on the record are always evidence, and that too although he be but a trustee. 2 Starkie Ev. ■ 39, or whether they are made by a real or a nominal party, who sues for the benefit of another. 1 Phil. Ev. [74.] Banerman v. Radenus, 7 T. R. 663. Johnson v. Kerr, 1 Serg. S)< Rawle, 25. Marshal v. Sheridan, 10 Serg. Sf Rawle, 268. So in a civil suit against several, who have a joint interest in the decision, a declaration by one, concerning a material fact within his knowledge, is evidence against him, and all who are parties with him to the suits- 1 Phil. Ev. [75.] Johns-son v. Beardslee, 15 Johns. Rep. 3.
    Declarations of a joint debtor, although-not á party to the suit, may be given in evidence. 3 Day’s Aeps-309.' But here we not only alleged incapacity of the testator, but a conspiracy*- practices and fraudulent misrepresentations,- on-the part óf the principal devisees, and the evidence to support these allegations had been given before the offer of the declarations of the plaintiff. ■ On-this ground these declarations were clearly evidence.
    Fourth error.- The evidence offered in this bill was rather inference from facts,-than the evidence of facts. Miller v. Miller,-3 Serg. Sf Ramie, 267.- The declarations of the wife are never evidence against her husband even where she is the meritorious' cause of action. 1 Phil. Ev. 64.- Wharton, 308, PI. 439. Randal’s Peake, 17. 2- Stark. Ev. -707, note 2. Cro. Eliz. 245. 1 Esp.-JV.-P.-413.

      Jenkins, on the same side.- The cases referred- to of Perron v. Read, Logan vr Watt.- Borrickv. Reichenback and Sholly v. Diller, are all cases where the writing was either proved before the Register, Register’s Court, or upon an issue directed for that-purpose.- In any such case, the probate is unquestionably prima facie evidence to go to the jury, but here the proceeding was arrested in limine; and a decree of probate- never was made; and the depositions by the act- of assembly only become evidence in the event of a decree. By that act either party may ask an issue; and if that- be directed, it must be conducted according to the principles of the common law. And they might as well have offered the paper,, alleged to be a will, in evidence," as to offer this deposition, without the preliminary proof. This issue is not according to the act of assembly which makes the depositions evidence on appeal,- but is under the proviso- or exception to the act, which authorises an issue, and sends the- cause to a- different forum.

    It is important to adhere to the general common law rule, which requires the personal presence and examination of the witness be-fore the court] Gilbert Ev. 54, and the party who wishes to avail himself of an exception to that rule, should be required to bring himself clearly within the exception. If the court will review the evidence on the preliminary question as to the ability of the witness to attend, it must be in a rank case. This is a wholesome principle and leads to justice; and this is not such a case. By reference to the evidence, the court will see, that the plaintiff did not make out the inability of the witness to attend.
    Where counsel take the opinion of the court on a- question of blendid law and fact, error in that opinion is not assignable here. Rouvert v. Patton, 12 Serg. Ramie, 253.- Upon this principle, if the court below did err on this point, this court will not reverse on that account.
    Depositions are the creatures of the civil law, and the proceeding upon appeal, under this act of assembly, is in the nature of a civil law proceeding. At common law they are but substitutes for what is considered better evidence, and not to be introduced but upon evidence clearly establishing the exception which warrants their admission.
    We proved that the decedent was an infirm, imbecile old man, and that he had been practised upon by the plaintiff, his son, for his own aggrandizement, and to the ruin of his brothers and sisters. He is not only a party on the record, and a principal devisee, but a devisee deeply implicated in a fraud in obtaining the will. If the principle be established, excluding the declarations and acts of a devisee under these circumstances, the grossest fraud may be protected from examination; legacies may be inserted in the will, and the devisee, who contrived and executed the fraud, become a party to the issue; and all his acts and declarations which go to demonstrate that fraud, are shut out, and no evidence can be given of them.
    The rule admitting the declarations of the party does not apply to the case of a mere trustee; but where the party has an interest, his declarations are always evidencd. This principle pervades all the cases, and the excepted cases are of parties having no shadow of interest, as guardians, executors, or mere trustees.

      Hopkins, in reply.
    The questions presented are of peculiar importance.- Wills are commonly made by old men, and their associates, who are usually old men, are the witnesses, and if their testimony,- is not perpetuated, disastrous consequences result. The act of assembly has therefore wisely provided to perpetuate that testimony. There are two modes of proving a will in common form, and in solemn form. In common form, it is proved by the oaths of the subscribing witnesses, which is the most ordinary mode in Pennsylvania. This proof is ex parte and informal, yet to perpetuate acts so important, the depositions taken in this way, are permitted to be read. This is the principle in the cases already referred to in 1 Yeates, 87. 5 Serg. Sf Rawle, 212. 10 Serg. éf Rawle, 94, and in 4 Yeates, 13, and the case of Sholly v. Diller. The officer usually has no practice in taking depositions, and commonly generalizes, and throws into the lump the testimony of the witnesses; and yet these depositions, thus informally taken, contrary to all common law rules in reference to testimony, are made evidence. But the Register’s Court is held by men fully competent to the investigation, and proceeds not ex parte, but in the presence of the parties litigant. Under the act of assembly, all the proceedings of this court, and before the Register, up to the time of granting the issue, including the depositions taken, are a matter of record, and maybe read, although the witnesses are actually present in court. This court is solemnly constituted, and this proof is formally taken, and in solemn form, and much higher testimony than the ex parte probate which has been decided to be competent evidence. No evidence therefore was necessary to introduce the depositions. By the act of assembly they are made part of the proceedings, and in one event they are the only evidence upon which the highest court, in the last resort, are to decide. The legislature meant that the testimony should be taken, and fixed; and. whether in common form, or in solemn form, it is evidence. Manya will has fallen to destruction for want of this care to preserve the testimony. These depositions are not only taken in solemn form, but when the recollection of the witnesses is fresh, and..aliveto the transaction, which has then but recently occurred. In the lapse of time, the mind of the witness is agitated by the events of life, and his memory of the incidents connected with the execution of the will almost effaced. If the party were required again to take his deposition, before a justice, an old man would be liable to have his recollection played with, by the ingenuity of counsel, and his testimony perverted. Depositions usually partake of the infirmity of the forum, before ■which they are taken. But before the Register’s Court, the witness is protected by a court accustomed to manage and control the taking of testimony.
    Knowing the importance of the deposition of Gloninger, (who wrote the will,) we gave the preliminary evidence of his inability to attend. It is true it was agreed that our oiler on this point in the second bill should be received, but at the same time the court overruled the deposition; showing, that the court considered that no testimony could be given which would warrant the introduction of the deposition. But it is denied that a discretion exists in the court below to reject evidence, which is not controlled here.
    The court below is called to make a hasty decision, and it would be monstrous to say, that there is no review.of such decision rejecting evidence on the preliminary inquiry.
    In the case of Pipher v. Lodge, 16 Serg. Sy Rawle, 220-21, the chief justice expressly affirms the position that such decision is the subject of review. Every question is for the discretion of the court, but it does not follow that the exercise of that discretion is conclusive. Harwood v. Ramsey, 1 BSerg.Sy Rawle, 32.
    This is not the case of a contract in which all the parties bind .themselves, so that the act of one is the act of all, but it is a case in which, although the legatees and devisees have a community of interest in establishing the will, they, as respects each other, are strangers.
    The case in 1 Mass. Rep. 71, is directly to this point, and has not been impaired. So is Éovard v. Wallace, and JVussear v. Arnold. In the last case the ground taken here was considered. It was al•leged that Margaret King, whose declarations were offered, was •not only the principal devisee, whose agent the nominal party on •the record was, but deeply implicated in a conspiracy, and fraud in obtaining the will.
    If there are two trustees, and 'both sue, the declarations of one are not evidence. There is no privity of contract between them ; -where this privity exists, as in the case of a joint contract, it is otherwise. This distinction explains the cases referred to in 17 Johns. Rep. 335, and 18 Johns. Rep. 330; the parties were united in interest, and the declarations of one were received to effect the others.
    Gibson, C. J. delivered the .opinion of Smith, J. and himself, {while Huston, J. delivered the opinion of Ross, J. and himself.
   Gibson, C. J.

I have so often been accused of an attachment to v .common law principles and forms in preference -to local practice, .that it gives me pleasure to testify, in this instance, a paramount .respect for our own precedents. This court had flattered itself that the law was settled by Bovard v. Wallace, and Nussear v. Arnold, (which is this very case,) if not in conformity to common law ^analogies, at least .consistently with justice and reason; and even ■were my opinion of the fitness of those decisions changed, I would, to avoid the mischiefs which are inevitably produced by overturning the solemn decisions of the court of the last resort, for theoretic reasons, adhere-to the known landmarks of the. law by which courts and counsel may proceed with safety and certainty. I ana happy .to say my brother Smith concurs with me in opinion, that the admissions of Henry Dietrich, a principal devisee, and party to the feigned issue, were erroneously received; and, the court being equally divided on this point, the authority of the cases to which I have referred, is, as yet, untouched. On the remaining point, I would, for the sake of unanimity, be inclined to yield the opinion I expressed in Pipher v. Lodge, 16 Serg. & Rawle, 214, as the authorities are nearly balanced on the question, whether the sufficiency of evidence to lay a ground for the introduction of a depo_.sition, can be re-examined on a writ of error; but as Judge Smith holds out on this point also, I am inclined to say the judgment .ought to be reversed on both points.

Huston, J.

‘The two first bills of exception were in this court argued together, but an attempt was made to draw a distinction between them, by reading the part within brackets, without the ■words “ to prove,” and considering the rest of the sentence as a statement of facts admitted, and by using the words, “but at the same time the court overruled the said deposition,” as conveying the idea that although the court allowed them in words to prove the allegation in brackets, yet in fact, they decided without hearing such facts proved; beyond ¡a doubt the deposition was offered the second time for the purpose of accompanying it with the jrecprd of the issue in which it was taken: — because to enable one to read a deposition, taken in a former cause, or in another court, between the same parties, you must show that there -was such a cause in such court: so the court understood it. There was no offer to give further evidence of inability to attend. If offered and refused we should have heard of it. To consider a bill of exceptions, on account of some inaccuracy of expression, as presenting a case so different from the real facts, as that counsel will not even -assert events to have happened as they now allege them, would' be to pervert a bill of exceptions to the worst purpose. Was this deposition evidence, if the witness was standing in court, and if not, was the proof of inability to attend such as that 'it was error in the court below to reject it?

In the first view, the principal part of the argument was founded on reading the first sentence of the act of assembly as far as the words “ made part of the proceedings in the case:” and to be sure, if no other words had followed, the argument was strong. The act contemplates two classes of cases, one where on caveat, the whole •matter is heard and decided by the Register’s Court, without the intervention of a jury, and here all the testimony must be reduced to writing, and forms part of the proceedings, and if an appeal be -taken, goes up as part of the cause.

The other class is where the weight and effect of the evidence is •not submitted to the Register’s Court, but to a jury; and as there the mode of proceeding is by examination of witnesses, in presence of the jury, and their finding is conclusive on the facts submitted, the testimony given before them, does not go up on appeal, nor is it known to the superior court. Suppose the testimony of the witnesses to the will is reduced to writing in the Register’s Court, and from this testimony it would appear to be a valid will, yet an issue is directed, and on the whole evidence the jury find it is not the •will of the testator; those depositions are not within the words of the act of assembly, and if sent up on an appeal, must be considered as no part of the record, -or an immaterial part.

In ordinary cases the witnesses go before the Register, and make oath, that they saw the testator execute and deliver the paper as his last will and testament, and that he was of sound mind. These affidavits are endorsed on the will, and letters testamentary are granted to the executors. In giving copies of the will, it was usual, and at one time was thought necessary, to give copies of these affidavits. It was, however, long ago decided that a copy of the will, and a copy of the record, that it was on such day proved and approved, was sufficient. This certificate of the proof, and that it was approved, is the real and true probate, and what makes it evidence in any, and every court. If the affidavits of the •witnesses are added, along with this certificate, they are often called the probate, and read along with it, though the witnesses are standing in the court, where the will is offered in evidence; and k hll the cases where such affidavits have been,read, it will be found that the Register or Register’s Court have acted on them, and adjudged the will to be proved. Where these depositions have not been acted on, and no adjudication on the validity of the will, they may be used as any other deposition taken before a court having jurisdiction of the same matter afterwards trying in another court: that is, may be used, if the deponent is dead, out of the jurisdiction of the court, or unable to attend. It appears Mr. Gloninger had been twice examined in open court, on trials of this cause, before the same judges who rejected .this deposition. In most cases in this state, and in all of much importance, the counsel on each side, and •the court, write what the witness says, and all that he says, (for he stops at the end of each sentence until it is written,) we-cannot ’ suppose these, depositions I may call them, were lost. They were not offered to be given in evidence.. The president, and perhaps both the judges, knew Mr. Gloninger, and .the witnesses who swore to his state of health. They had also witnessed his former examinations, and cross examinations in court, and they could, although we cannot judge of the importance of his being examined in the presence of the jury. I .cannot allow that a particular temperament of body in the witness, unless very peculiar indeed, can change ■the law. If a witness intends to tell, and does tell the truth fairly, there is no reason why he should become much excited, or why his choler should rise so as to endanger apoplexy; and if he will ■become excited in a particular cause, and will answer so as to make a tedious cross examination necessary, it is right the jury ■should see and hear him. There are two cases, and I recollect but •two, where this court have reversed, because the court below erred in receiving or admitting a deposition, on account of a defect of proof of inability to attend; one was a very early case; and there •are seven or eight, wffiere it has been said to be a matter pretty much depending on the discretion of the court, who try the cause. The question whether such proof has been given of inability to procure a written paper, in order to let in parol evidence of its contents, is like this in principle; I recollect two cases, Magil v. Caufman, and another, both reported, in which this court refused ■to reverse, or even seriously consider the matter, saying it was within the jurisdiction, and depended on the discretion of the court below. This court does not now say, that there can be no case in which we will reverse on such account, but w'e say it must be a very strongand gross case, in which we will interfere, and we think this not such a case.

The next two bills of exceptions were argued together, and they present the question, whether, in such an issue, the declarations or admissions of the principal devisee in the alleged will, and who is sole plaintiff in the cause, can be given in evidence 1 Perhaps the decisions of this court, on this point, have been peculiar to this state, except one early case in Massachusetts. They seem, however, carefully, either to keep clear of this case or admit it. Bovard v. Wallace, 4 Serg. & Rawle, 499. In questions on the validity of a will, the declarations of an executor or devisee, who is not a party to the suit, are not evidence.

The case of Nussear v. Arnold, 13 Serg. & Rawle, 323, is still stronger. The question there was, whether the declarations of a devisee, who was carrying on the cause, and whose agent was the plaintiff, in the feigned issue, should be given in evidence. And in the argument and decision it seems to be taken for granted, that if the devisee had been a party, there would have been no dispute. The objection that these admissions may effect the rights of other devisees, has not been of so much avail in other courts. In 17 Johns. 335, and 18 Johns. 330, the recital in a deed, and the parol'declarátions of one of several lessors in ejectment, were admitted, although they might effect the other lessors.

The admission of sanity or insanity by a devisee is one thing, the repeated admission that a man of ninety years of age was childish, and becoming more so every day, is another and stronger matter, when the fact trying is whether the very person who made this declaration or admission, did not at that very time, or soon after, procure the will to be made by misrepresentation and imposition on this weakness. The cases cited prove the general position, that the declarations of a party on record, and who has an interest in the cause trying, are in all cases-evidence. We think therefore, that as well the cases in this court,(which always except the case where devisee is not a party to the' suit,) .as the uniform current of authorities, require that we affirm the decision of the Common Pleas on these two bills.

The last bill of exceptions was not insisted on. The declarations of a married woman in the presence of her husband, or when acting as his agent, are evidence against him, but generally they are not.

Rogers, X, had been of counsel in the cause, and took no part.

Judgment affirmed.


source: Caselaw Access Project

author: Huston, J.,

license: Public Domain

text:
    Appeal by JOHN FEATHER, attorney in fact of JOHN OBLINGER, and of GEORGE FEATHER and SUSANNA his wife, from the decree of the Circuit Court, in the matter of the money paid into the Orphans’ Court, arising from the sale of the real estate of CHRISTIAN OBLINGER, deceased.
    The return daysof process into the Circuit Court from the Common Pleas, Quarter Sessions or Orphans’ Court, by act of Assembly, are the third Monday in March, the first Monday in September, and the second Monday in December in each year. — A certiorari is not necessary to remove a record on appeal from the' Orphans’ Court to the Circuit Court.
    Where an appeal is taken from the Orphans’ Court to the Circuit Court, the appeal is not required to be filed before the next return day after it is taken, nor can any rule be taken'in the case until then: but' if the record be filed before' the return day, and the cause is heard, and decided by the Circuit Court without objection, it is too late to take that objection in the Supreme Court, after the cause is brought there upon appeal, by a motion to quash. — Generally, if a party goes to trial by consent in a lower court at an earlier term thaii he was compellable to do, if he make no objection then, his objection will not avail him afterwards.
    C. O. made his will in 1798, and died soon after, seized, as he supposed, of a large real estate. By his will, after disposing of his personal estate, he directed that his land should be occupied in a certain manner for three years,- then valued by twelve men, and his son John have the right to take it at the appraisement; if he tefused, the other children in succession to have the right, if none agreed to take it, it was to be sold by the executors, and in either event the money divided among his heirs. “ But the sum of £400 is to be charged on the said estate, and remain in the hands of the purchaser:” the interest on this sum he directed to be paid to his wife, and at her death this sum to be divided among his three eldest children or their heirs; “andas touching the money arising from my land and estate, I give and bequeath to my son J. O. first and foremost, £1000, because he is my only son, along with his share, which he shall have with my other children.” His personal estate was exhausted, and his real estate sold on execution within two years after his death; a balance of £400 in 1801 was decreed to be put to interest, and the interest paid the widow. Widow died in 1803, and in 1814 a scire facias was issued upon the judgment given to secure the £400 in which a verdict was rendered in 1826, and the proceeds brought into the Orphans’ Court for distribution, in 1828. Held: That J.- O.- was not entitled to be paid out of this fund, his legacy of £1000; but that he took, as to this, an equal share, as one of the “three oldest children” of the testator, that his interest in the fund was personal, not real estate, and a judgment against him no lien on it.- — /. O. had taken the benefit of the. insolvent laws, in 1800, the assignees then appointed had not qualified, and were dead. Held: That the Orphans’ Court should retain his funu until the next term of the court in which he was discharged, to have assignees appointed to receive it, but if none were then appointed it should be paid to /. O.
    By the express provision of the insolvent law, the statute of limitations does not run against debts due by an insolvent debtor.
    Lapse of time, much greater than that allowed by the statute, may raise the presumption of the payment of such debts; but when the creditor returns no fund but a debt to become due on a future contingency, no presumption of payment would arise before the fund came to hand.
    When an appeal is taken from a decree of the Orphans’ Court, it would be wrong in that court to order the money to be paid over under that decree, while the recognizance is writing, or the party bringing in his bail.
    A motion was made by Hopkins, to quash this appeal, on the ground that the cause was not in the' Circuit Court when the decree of that court was’made. Oh the 19th April, 1830', the’ Orphans’ Court made their decree in the case from which this appeal was’ taken, and a certiorari issued, tested the 15th day of March, 1830, and returnable the first Monday of September'then next;-and on the 3d of May,- 1830, the Circuit Court, upon argu* ment-, affirmed the decree of the Orphans’ Court, from which this appeal was’taken.
    He’ contended that the cause was not' in the Circuit Court béfore the return day of the- certiorari, and the decree- of that- court * was therefore without jurisdiction/ ■

      Montgomery and Norris, contra,
    argued that the writ of cériior'afí was unnecessary: by the appeal the record was removed without it; but as the party had- voluntarily appeared before the return day of the writ', and the cause was then heard,’he could not now allege want of jurisdiction in the court.
    The court overruled the motion to quash,-for reasons' assignedjri the opinion of the court, and ordered the' appeal to be ar’gued. "
    The case was this: Christian Obliúger, seized of a large estate, made a- will, dated the 8tli of December, 1798, by which, after pro* viding that his burial charges and debts should be paid, he directed that his wife should keep in her possession his other estate for her subsistence and use, as she shall find it necessary’. That his son, John Obling&r, shoiild live i’n the large house, with his mother,- and work the plantation-for her. Of what he soived’and gathered in, two-thirds were to be his, and one-third part his mother’s: Then, after directing as to cider, fruit, flax, firewood, &c. to be furnished her, he says, such fee or rent shall continue three years; after that, the’ plantation was to be valued by a jury of twelve men. His son John was to have a right to take if according to the valuation: if he’ did not, another of his heirs was to have that pri* vilege. Three months after the’ valuation the money was to be paid to his executors, who were to give a de'ed’ to’ the purchaser.If none of the heirs took it, it was to be sold and the money thence arising to be divided among his heirs. But the sum of four hundred pounds, was to be charged on the said estate, and remain in the hands of the purchaser; the interest of which he gave to hiS wife, “ along with the lesser house for her to dwell in, as lóng ás ■ she lived, and all the household and kitchen furniture, to be used at her pleasure.” After her death, the four hundred pounds, and what was left of the household and kitchen furniture, were to be divided among his three eldest children or their heirs. He then proceeds: “and further touching th'e money arising out of my land and estate, I give and bequeath to my son, John Oblinger .first-and foremost, one’ thousand pounds, because he, is my only son, along with his share, which he shall have with my other children.” After giving to his son-in-law, Nicholas Ziller, one shilling, and to his sons-in-law George Feather and Peter Feather, and the son of Peter Feather, the sums received of him, he directs that Peter Feather's son, born of his daughter Mary, shall have, if he arrived “ at the age of twenty-one years, one hundred and fifty pounds, which his executors should retain in the sum of his plantation till he becomes of age.” But if he died before the age of twenty-one years, the money should be given to his other three children as a legacy, by his executors, to each fifty pounds. Further, he willed that his eldest daughter, after she had received her share for her and her heirs of his executors, might choose and appoint guardians for her and her heirs; and she should have a right to make use of said sums as need and her circumstances required, and demand it of her guardian. If his wife died before the expiration of the three years mentioned, his executors were to have what there was of the personal property appraised, and do as above mentioned with his plantation: “ but always that my son John Oblinger may keep my plantation at the appraisement, if he fulfils the said articles and payment.” After naming his executors, and revoking and annulling other wills, and dating the will, he added two other items, by which he bequeathed to his grandchild, Elizabeth Feather, one complete bed and bedstead, and directed, that after the decease of his wife, she should have the sum of fifty pounds, out of his estate; and then willed and ordered that his daughter Barbara should have the sum of fifty, pounds, after the decease of his wife; and declared it to he his full meaning and will that she should he considered, and be an heir as one of his four childen; hut to Nicholas Ziller he only bequeathed as above.
    After the death of testator, which happened before the 27th December, .1798, his personal estate was exhausted, and his real estate in two years after his death, was sold on executions, and the sum of seven hundred and fifty pounds only remained after the payment of his debts. This being brought into the Orphans’ Court, that Court on the 29th September, 1801, decreed the sum of four hundred pounds, bequeathed by the testators will to his widow, to be put out on real security, and the interest thereof to be paid to her during her life, and after her death, that the principal he paid, and distributed to and among the legal representatives of the testator, according to law, and the order of the court.
    This sum was loaned to John Bitzer, who gave his judgment bond for it: upon which judgment was entered to November term, 1801. On this judgment a scire facias issued in 1814, which was transferred from the Common Pleas to the District Court, to June term, 1820, and tried on the 9th September, 1824; and the money now in court was made on that judgment.
    The remaining sum of three hundred and fifty pounds was divided equally among the children, without regard to the legacy of one thousand pounds to John.

    The widow died in 1803. John Oblinger, Susanna intermarried with George Feather, and Barbara intermarried with Nicholas Ziller, were the “ three eldest children” of the testator, between whom be directed the four hundred pounds, after the death of his •wife, to be divided.

      Upon the trial of the scire facias, the defendants established the payment of one third of the four hundred pounds, her share, to Barbara Ziller, also of fifty pounds to John Oblinger, and sixty pounds to Susanna Feather, and the verdict was rendered for the balance of two shares. The defendants claimed a credit of fifty-.six pounds five shillings, paid on the 1st of June, 1806, to John Sheaffer, intermarried with Elizabeth Feather, on account of the legacy of fifty pounds bequeathed to her, but the receipt for this payment was overruled, and as to that sum, it was agreed by the counsel of the parties, to leave the question “ open for consideration on the final settlement of Christian Oblinger’s estate.”

      Susanna’s share, amounting to the sum of two hundred and eiglity-six dollars and fifty-six cents, was paid over to her by Mr. Buchanan, the counsel of the plaintiff in the scire facias. And the amount paid into the Orphans’ Court was the sum of two hundred and ninety-six dollars and seventy-five cents, the payment to Sheaf-fer, with its interest, and the amount of John’s share being three hundred and forty-five dollars and seventy-six and a half cents, supposing the fifty-six pounds five shillings to have been rightly paid.
    The executors of John Bitzer claimed to be paid the said sum of .two hundred and ninety-six dollars and seventy-five cents, on account of the payment to Sheaffer.

      John Oblinger, by his attorney John Feather, claimed to be paid •his share, three hundred and forty-five dollars and seventy-six and an half cents; also, the one half of the said sum of two hundred and ninety-six dollars, and seventy-five cents, and George Feather, in right of his wife, claimed the other half of that sum.

      David Rinehart claimed as a judgment and bond creditor, of John Oblinger, “who took the benefit of the'insolvent laws in the court •.of Common Pleas of Lancaster county, at August term, 1801,” to be paid the whole fund in court.

      David Rinehart’s judgment against John Oblinger, was entered on the 20th January, 1800, to November term, 1799. On the 24th September, 1800, on affidavit of the defendant, a rule to show cause why this judgment should not be opened, was taken, and on the 13th February, 1801, a rule to take depositions entered. This proceeding there rested, nothing further having been done upon the rule.

      Rinehart, also showed a bond given by John Oblinger to Charles

      Rinehart, on the 6.th June, 1798, for fifty pounds, assigned oh the 2d August, 1800, to him. Also, a judgment in favour of Mir chael Berndhe{sly against John Oblinger and David Rinehart, to May term, 1799, on a bond, dated 9th March, 1798, which was paid by the said Dftvid Rinehart.

      John Oblinger took the benefit of the insolvent laws, to August term, 1800, in the court of Common Pleas, and executed an assignment in trust for his creditors; the assignees never gave bond, and were dead at the time the decree of the Orphans’ Court was enter? ed in this case. Oblinger, after taking the benefit of the insolvent laws, removed to the state of Ohio.
    Motions, corresponding with these several claims, were entered in the Orphans’ Court.
    That court denied the motion made on behalf of Bitzer’s executors, (the payment to John Sheaffer being a mispayment,) and the motion in fa'vour of David Rinehart, and decreed that the share of John Oblinger should be paid to his assignees legally qualified to receive it, and that the. fund should be detained until the court of Common Pleas should make an appointment of assignees, and that the one half of the sum of two hundred and ninety-six dollars, and seventy-five pents, the sum reserved to await the question as to the payment to Sheaffer by Bitzer, should be paid to George Feather, in right of hi? wife, the assignees of John Oblinger Being entitled to the other half.
    From these decrees of the Orphans’ Court each party appealed to the Circuit Court, who on the 3d of May, 1830, affirmed the decrees of the Orphans’ Court; and from this decree of-the Circuit Court, John Feather, attorney in fact of John Oblinger, and George Feather, and Susanna his wife, appealed on 7lh May, 1830, to the Supreme.Court, for the following reasons, viz:
    1. Because the court refused to order to he paid out of court to John Feather, attorney in fact of John Oblinger, the sum of three hundred and forty-five dollars and seventy-six and an half cents; and also the sum of one hundred and forty-eight dollars and thirty-: seven and an half cents; and also because the court refused permission to the said John Feather, attorney in fact of George Feather and Susanna his wife, to take out of court the sum of one hundred and forty-eight dollars and thirty-seven and an half cents.
    2. Because the court decreed that the sum of three hundred and forty-five dollars and seventy-six and an half cents-should be paid out of court to the assignees of John Oblinger, if such assignees existed, and if such assignees did not exist, then to he paid out to such assignees as. the court of Common Pleas should or might appoint.
    3. Because John Feather, attorney in fact of John Oblinger, and of George Feather and wife, has in law and equity and justice, a right to take out of court the said sum of six hundred and forty-five dollars and fifty-one and an half cents, in favor .of his constituents, the said John Oblinger, and George Feather and wife, the legatees of Christian Oblinger, deceased.

      Montgomery for the appellants.
    The whole fund in court was claimed as belonging to John under the bequest to him of one thousand pounds, by David Rinehart, on his judgment.

      He contended, that by a fair construction of the will, John was only entitled to one-third of the four hundred pounds, after the death of the widow, but that the decree of the Orphans’ Court of 1801, fixed the persons among whom the money was ultimately to be divided, and recognized the right of the three eldest children; and that this decree would, if any difficulty existed in the question, control the present distribution of the fund in court, as to this point.
    He took' two grounds in opposition to the claim of Rinehart, on his judgment.
    1st. That the interest of John Oblinger, under the will of his father, was an interest in a legacy only, upon which a judgment against him was no lien.
    2d. That the judgment of Rinehart was satisfied, in presumption of law, by lapse of time.
    1st. By the will the testator directed that his land should be sold or that John should be permitted to take it at an appraisment, but that his executors should execute a deed; ..and John was only to have a share of the value or price. This although a charge upon the land, was no interest in it, which could be'subjected to the lien of a judgment.
    2d. It was true that John Oblinger had taken the benefit of the insolvent laws, but this neither arrested the operation of the statute of limitations, nor prevented the effect of lapse of time. The operation of the statute of limitations was not suspended while the act of 13th'March, 1812, “for the relief of insolvent debtors residing in the city and county of Philadelphia, and their creditors,” was held by the courts of this State to be constitutional and valid, Hudson v. Carey, 11 Serg. &f Rawle, 10. Ingraham ón In, 214 — 215, a lapse of twenty years satisfies a judgment, and here more than twenty years elapsed from the death of the widow,.to the time when the claim was made on behalf of this judgment. The presumption too was fortified by the rule taken to show cause why the judgment should not be opened.
    The controversy was between John Oblinger and David Rinehart, and the Orphans’ Court hád no right to interpose the assignees of Oblinger, who had never qualified, who did not claim, and who in fact were dead, to arrest the fund from Oblinger.

    The benefit of the insolvent laws was taken by him in 1801, the assignees never qualified, and in law the debts then due were presumed to be satisfied, and this proceeding abandoned.
    Again, the Orphans’ Court has no jurisdiction but in cases of trust under the act of 1713, and cannot decree money to a stranger to that trust, and therefore cannot order the money of the heir to his creditor, either with or without an application. The remedy of Rinehart, if his judgment were not satisfied, was by foreign at- ■ tachment. He also referred to Read’s Dig. 177. Toller' on Ex. 235. Ross v. M‘Junlcin, 14 Serg. ¿p Ramie, 364. Kane v. Bloodgood, 7 Johns. Eh. Rep. 90-113.

      Hopkins, contra.
    If under the.will John Oblinger was not entitled to the whole fund, then an average should take place among the legatees; and in that event Bitzer’s executors should be allowed to come in on account of the money paid to Sheaffer in right of his wife Elizabeth.

    But he contended that the legacy of one thousand pounds to John, was entitled to a preference. The testator had thought that he was wealthy, and his will was made under this impression; but it turned out that his estate was nearly insolvent, and the will can only be carried into effect ci pi-es, as near the intention of the testator as this change of circumstances will admit. It was not the intention of the testator to give his whole estate to his wife ; as there was not enough to pay all, her legacy should abate in proportion: nor will any fair construction of the will authorise the distribution ■ofthe fund to the three eldest children, to the exclusion of the other legatees. Under the circumstances of the fund, the true construction of the will would be to distribute the fund to the legatees pro rata. He contended that as it appeared by the will that the legatees, except John and Elizabeth, had been advanced in the life time of the testator : that as there was a deficiency of assets, these advancements should be taken into view, in regulating the proportions which each should receive out of the fund. .
    But the legacy to John was entitled to be preferred. The will ■is that the oldest son shall first réceive one thousand pounds; and the testator assigns the reason for this preference, “ because he is my only son.” Every expression in a will must, if possible, have effect given to it, and the only meaning of the words “ first and foremost,’” in the will is that John’s legacy is to be preferred.
    He contended that the interest which John took under the will was an interest in the realty, and subject to the lien of judgments against him. If John had taken the real estate at the appraisement under the will, he certainly would have taken it as land. The fund in court must be considered as if the intention of the testator had been carried into full effect. The sale by the sheriff prevented this being done literally, but where the act of the law ■encroaches upon the intention of the testator, the encroachment never goes beyond the necessity of the case. The four hundred pounds is expressly charged upon the land, and as it respects John’s interest, who was to have taken the land at the appraisement, it is land. That interest has been converted into money, but the nature of the fund remains unchanged. Diermond v. Robinson, 2 Yeates, 324.
    The judgment of Rinehart was entered before the sale by the sheriff; it was then a lien, and this sale has no other effect than to bring home the fund for distribution. Nichols v. Postlethwaite, 2 Dali. 131. Gausev. Wiley, 4 Serg. ¿f Razóle, 509. Reese v. Adams, 16 Serg. Sf Razóle, 40. Barnet v. Washabaugh, 16 Serg. Sy Razóle, 410.,_ Oity v.Shuey’s Ex’rs, 1 Razóle, 294.
    The circumstances of the case avoid the lapse of time, which is , insisted on as evidence of the satisfaction of the judgment. The rule taken by the defendant to show cause why the judgment shouid'not be opened is one circumstance, and his insolvency and removal from the State, another circumstance. And besides this the property in question was in action, and its reduction into possession depended upon a future contingency. - But by 'the act of assembly of 1729-30, Read’s Digest, 180, in case of insolvency debts are protected from the lapse of time. The right to the fund depended on the death of the widow, and the fund itself was not recovered until 1824, and was not brought into court for distribution until 1828. The suit for the recovery of the money, (the scire facias,) was prosecuted for the interest of all concerned. That was issued in 1814; from the death of the widow in 1803, until this time, the only delay occurred, and that is insufficient to warrant any presumption of payment. From that time the rights of all were actively pursued. Cope v. Humphreys, 14 Serg. Sf Razóle, 15.
    The court wore right in arresting the fund until trustees were appointed under the application and discharge of Oblinger. A. change of trustees of an insolvent has been allowed after the lapse of sixteen years, where the first trustees had never qualified. Gray v. Hill, 10 Serg. £$■ Razóle, 436. Until the trustees do qualify, the estate of the insolvent is in gramio legis.

    The decree of 1801, in no way concludes the inquiry now beforg the court, as by the terms of that decree the fund was to be brought into court for future distribution.

      Norris, for the appellants in reply.
    The Orphans’ Court have no jurisdiction as to the judgment creditors of legatees, when the fund on which the legacies are a charge is brought into court for distribution. The Orphans’ Court, although it is a court of chancery, has its power limited by statutory provision, and cannot go beyond the statute.
    By the statutes its jurisdiction is confined to the estates of ■ dead men, and it can make no decree in favour of a creditor of a cestui

      que trust, who has a fund within its jurisdiction. It has the incidental power of appropriating money to liens on real estate of record, but it cannot go' further.- .Where the debtor denies the debt, it has no power by an adversary suit, to determine the question. It has no power to direct an issue, but in a question incidental to the estate of a decedent. ’ To suffer this court to direct issues in any other controversy would be to make it a court of chancery with general jurisdiction.
    The judge of the Orphans’ Court had no right to go out- of his proper forum to award the funds to assignees who had no existence, and to decide that the Common Pleas would create them. The creditors of Oblinger, whom the court undertook thus to protect, had no subsisting' claim. Direct - trusts, created by deed or will, as between cestui que trust and trustee, subsist unaffected by lapse of time. They are created by contract, and not by operation of law. All other trusts are affected by the statute of limitations, and lapse of time. And a stranger to the trust, who acquires an incidental right, as against the cestui que trust,- will be barred by the statute,-and his right effaced by time. Where the assignee does not act for a long time, the assignment is presumed to have been abandoned. Adlum v. Yard, 1 Rwwle, 163.
    The interest of Oblinger under the will, is an interest in personalty and not in the land. If he had taken it at the appraisement, he would have acquired an interest in the real estate; but until he did this, his only right was to a share of the proceeds of the sale of the land, which was never yet adjudged to be real.estate.
    The legacy to the wife of the testator was specific, and for that reason is not to abate- She was the chief object of the testator’s bounty, and her legacy was to be first invested. And by the plain terms of the will,- upon her death, the legacy thus invested was to be divided among the three oldest children of the testator. The construction of the will is derived from itself, and cannot be made to vary by circumstances occurring after the death of the testator, and which could not have been contemplated by him when he made the will.
   The opinion of the court was delivered by

Huston, J.,

(who stated the facts.) — The return days of process, &c, brought into the Circuit Court from the Common Pleas, Quarter Sessions or Orphans’ Court, are fixed by act of assembly, and are the third Monday in March, first Monday in September, and second Monday in December, in each year. It Was objected here that as the certiorari removing the cause from the Orphans’ Court to the Circuit Court, is not returnable for some months, we cannot proceed with the hearing. Whatever may have been the case, when the appeal from the Orphans’ Court was direct to the Supreme Court, certainly a certiorari & not necesary to remove an appeal from the Orphans’ Court to the Circuit Court. This would seem to be a writ not issuable by the Circuit Court after judgment by any lower court. The certiorari and its return day are then laid out of the case. Is the appeal from the Orphans’ Court to be filed before the next sitting of the Circuit Court, in the county, or before the next return day? I think not before the latter. There could be no rule for filing exceptions, or non pros for not doing so until the return day next succeeding the appeal. It would expedite .business were it considered as returnable to the next sitting of the Circuit Court in that county; but under the existing laws, we cannot compel are-turn before the next return day. But here the appeal was filed,, and decided by the Circuit Court, and no objection on this’ account made, and an appeal taken to this court, where the-objection is first heard. We' think it cannot avail at this time, it is too late; and, generally, if a party goes to trial by consent, in a lower court, at an earlier- term than he was compellable to do, if he makes no objection then, his objection will not avail him after-wards — I am glad that in this case no injury is done to the party who alleged surprise.

The Orphans’ Court, in 1801, in accordance with tlio will, directed four hundred pounds to be put out at interest, on bond and judgment, binding lands, for the purposes mentioned in the will, the principal payable at the death of the widow. Instead of noticing the bequest of one thousand pounds to John, first and foremost, the remaining three hundred and fifty pounds, were divided equally among the children; a judgment creditor of John's got his share. We think this was wrong, but it is not before us, and we could not now remedy it if it were. The widow died in November, 1803, but the executors of Oblinger, to whom the bond was given, did not collect the money, nor- even bring suit till 1814, and the cause was not tried and money raised till 1828. The executors then brought it into the Orphans’ Court, and several questions were made as to the distribution. A person who had obtained a judgment against John claimed it, and the court decided against him: he then brought the record into court and showed that John had applied for the benefit of the insolvent acts; had assigned' to trustees for the use of his creditors, and been discharged. The court decided the judgment was no lien, and rightly. Whatever John's interest originally waq under the will of his father, in the lands of his father, yet when those lands had been sold, and the money brought into court, and was again put out to interest, it became personalty; the bond was a mere chose in action; and although judgment was after-wards entered on it, yet whoever heard of a judgment being a lien on another judgment? The court next decided that they could not award the money to John, as his interest was vested in his assignees, and it made no difference that the original assignees were dead, and no successors had been appointed. They would give time to apply to the Common Pleas to appoint others. This opinion was clearly right. If the debtor of an insolvent who has assigned, pays the insolvent, the assignees can compel him to pay again to them. If it were not so, our insolvent acts'would be a fraud on the creditors. And it would be strange if our courts were not bound to take notice of a general law. It does not alter the case that the application was not made by an assignee. Chancery when informed of a party in interest, not before it, always brings him in. But it has been said the statute of limitations has barred all claims against John, or that from lapse of time his debts are presumed to be paid. Our insolvent act of 1729-30, and every act since provides, that notwithstanding the discharge of the insolvent under the act, all debts due and owing from such debtor, and all and every judgment had and taken against him, shall stand and be good and effectual in law, to all intents and purposes, against the lands, tenements and hereditaments, goods and chattels of such debtor, which he or any other person or persons in trust for him at the time of his discharge, shall have had, or at any time thereafter shall or may be in any way seized or possessed of, interested in, or entitled to in law or equity. This would seem to put the statute of limitations out of the way in such case: but further, the court may, on consent of a majority in number and value of the creditors, make an order that the insolvent shall not be sued for seven years. If the statute of limitations runs against a person discharged under the insolvent laws, this order would put an end to all claims barred by a lapse of six years. I do not say that lapse of time, much greater than that allowed by the statute, will in no case raise a presumption of ¡payment. This will often be the case, when assignees act and have property in their hands. This however was not such a case as would justify the Orphans’ Court in, at once, considering these debts paid. Where a creditor returns no funds, but some debts not to be collected till after a certain event, (as here the death of his mother,) it would be strange to say the debts were to be presumed paid before the fund came to hand. This is however a matter to be decided in the Common Pleas. The Orphans’ Court were right in detaining the money until assignees should appeal. ^ Those assignees will be trustees for the creditors, and for John, if there are no creditors, or there be a surplus after payment of his debts. We think, however, that a time should have been limited within which the creditors should apply and get assignees; John is not to wait forever in suspense; we therefore confirm this part of the decree, with this addition, that if the creditors do not apply, and get assignees who will give security at next term of the Common Pleas, in August, 1830, that the money be paid to John Oblinger or his lawful attorney.

There was another matter mentioned which admits of no doubt. One of the sisters prayed the money awarded by the decree of the court, to be paid to her. There was an appeal to the Circuit Court, and a few minutes or a few hours elapsed before the recognizance of bail could be drawn up, and bail brought before the court, but it was done the same day, and before the court rose. And the court refused to order the money instantly to her; most clearly the court were right. To have given it to her, under such circumstances, while the recognizance was writing, and bail coming in, would have been grossly wrong. The decree, with the addition above mentioned, is in all respects confirmed.

Decree affirmed.