text:
    Books, Administrator, versus Borough of Danville.
    1. By the Act of April 26th 1855, the right of action in cases of death from injuries was conferred only upon parents for the loss of their children, and children for the loss of parents, and reciprocally upon husband and wife. The Constitution of 1873 declares that in cases of death resulting from injuries, “ the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.” Wo legislation on the subject has been enacted since the adoption of this Constitution. Held, that the Act of 1855 is still the law, and that no right of action, under the constitutional provision, survives to the administrator of the deceased person.
    2. Wo right of action for damages for death caused by negligence could exist in the deceased. It was given to and first existed, in, the relatives entitled under the statute to sue therefor : Mann, v. Wieand, 4 W. W. C. 6, followed.
    June 12th 1880.
    Before Sharswood, C. J., Merctjr, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Columbia county: Of May Term 1880, No. 54.

      Case by Curtis S. Books, administrator of Charlotte Books, deceased, against the borough of Danville, to recover damages for the death of his wife, the said Charlotte Books, alleged to have been caused by the negligence of the defendant in allowing an abutment on a bridge on one of its public streets to be unguarded.
    On the evening of the 27th of October 1878, which was very dark, the wife of the plaintiff, in returning from church to her home, missed the bridge and fell from the top of the unguarded part of the abutment into the canal below, and was drowned. The plaintiff took out letters of administration, and brought this suit in the Common Pleas of Montour county, to recover, as her administrator and for her estate, damages for the injury suffered by her by reason of the negligence of the defendant. His action was founded upon the twenty-first section of the third article of the Constitution of 1878, which provides, “ that no Act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for. injuries to persons or property; and, in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.” The venue was changed to Columbia county. At the trial, and after the plaintiff had closed his evidence in chief, the counsel for the defendant moved the court to order a compulsory nonsuit. It was not, however, contended that the plaintiff had not made out a prima facie case, if’his suit had been brought in his own name, as husband of the deceased, under the provisions of the Act of 26th of April 1855, Pamph. L. 809, but that it appearing by his evidence that the deceased was his wife, he had proved too much, and had shown that he had no cause of action as administrator of the deceased.
    The court, Elwell, P. J., granted the nonsuit, and afterwards refused to take it off, in an opinion, saying:
    “ The Acts of the 15th April 1851, and of the 26th April 1855, confer new rights unknown to the common law. For injuries by unlawful violence or negligence, causing death, the former act gave a right of action to the widow of the deceased, and in case there be no widow, then to the personal representatives. The Act of 1855 changed the law, so far as regards the personal representatives, and conferred the right of recovery only upon parents for the loss of children, and upon children for the loss of parents, and reciprocally upon husband and wife. The right of action was given by the Act of 1851, and the Act of 1855 defines who may sue. The damages are given, not to the estate of the deceased, but in express terms to specially enumerated relatives, as compensation for the pecuniary loss which they sustain by the death.
    “ Conceding this to be the correct construction of the Acts of Assembly, it is contended that the right of action is extended to personal representatives of the deceased by the twenty-first section of art. iii. of the Constitution of 1873. That section provides that in the case of ‘death from injuries, the right of action-shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.’ Since the adoption of the Constitution, no law has been passed upon this subject, for the reason, no doubt, that the legislature was satisfied with the law already in force.
    “ The Act of 1855, which gave a right of action to the relatives named, was continued in full force by the second section of the schedule to the Constitution. It provides that ‘all laws in force in the Commonwealth at the time of the adoption of this Constitution, not inconsistent therewith, and all rights, actions, prosecutions and contracts shall continue as if this Constitution had not been adopted.’
    “ The provisions in the Constitution that the right of action shall survive, and that of the Act of 1855, that the relatives named shall have that right, are not inconsistent. The constitutional provision was for the purpose of preventing the passage of any laws by which the common law would be restored, and all right of action taken away. It declared that the right of action shall survive, but submitted to the law to say to whom. Ry continuing the former law in force, it, in effect, declared that no person but the husband, as such, shall maintain an action for injuries by negligence causing the death of his wife. As administrator he has no right of action. The nonsuit was, therefore, properly ordered. Motion to strike it off overruled.”
    . The plaintiff then took this writ, and assigned this action of the court for error.

      Leander K. Mowrer, Charles M. Buckalew and Joshua W. Comly, for plaintiff in error.
    Our interpretation of the twenty-first section of art. iii. of the Constitution is that an action, for the cause of action therein declared to sryrvive, can only be sustained by the executors or administrators of the deceased. The husband, doubtless, could also maintain his action in his own right under the Act of 1855, but the right of action declared by the-Constitution to survive is a totally different right, namely, that which the deceased had in his lifetime for the injuries sustained, and which, when the injuries are followed by death, survives to his administrator.
    What is this cause of action that is to survive ? Undoubtedly it can only be the cause of action which the deceased had by the laws of this Commonwealth, at and immediately before his death, for no other person is mentioned as suffering injury or damage, or is mentioned at all. In fact no one is expressly mentioned, but the words “injuries to persons” and “in case of death from such injuries,” necessarily imply a person suffering such injuries, and by reason of them succumbing to death, and it is.his cause of action which the Constitution says shall not die with him, but shall survive. There certainly is no word in this section of the Constitution to lead the mind of the reader to the domestic relations of the deceased, or to the pecuniary damages for the injury resulting from his death to those relatives, to whom the Act of April 26th 1855 (Pamph. L. 309, Bright. Purd. Dig. 1094, pl. 3), gives an action for their recovery. Nor does the Constitution give expressly an action to recover damages for the death of the deceased, as did the 19th section of the Act of April 15th 1851, though we think that the intention clearly appears that the action shall survive to recover compensation for all that the deceased suffered or lost by means of the injury to his person.

      Actio personalis moritur cum persona is the rule and maxim of the common law, and in case of the death of either the plaintiff or of the defendant, a personal action always abated. Where, however, the right of action arose ex contractu, it generally survived the death of either party, and whenever it did survive it always descended to the personal representatives of him who had it in his lifetime : 3 Bl. Com. 302. The purpose of the appointment of executors or administrators is that they may represent the deceased by enforcing the personal rights of action which he had in his lifetime, and in defending his estate against any claims that may be made against it. There is no reason why such rights should vest in any one else, and the law has always vested them in the personal representatives. Where the Constitution in this section, therefore, says, “ the right of action shall survive,” it vests the right in the personal representatives of the deceased.
    Had the first sentence in this section of the Constitution ended with the words “the right of action shall survive,” it is probable that no one would have thought of arguing or contending that the right of action thus surviving was not vested by the Constitution in the legal representatives of the deceased. But the sentence proceeds, saying, “ and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted,” and it was these latter words which the learned court below construed as authorizing the legislature to transfer the legal right of action from the legal representatives of the deceased to her surviving husband. The counsel for the plaintiff in error are unable to assent to this construction. These words have no relation to the legal parties or to the legal form of the action, but only to what might be recovered by it. .The Constitution fixed the legal party, and authorized the legislature to designate the use party. There is a legal congruity in requiring that a right of action which survives the deceased, shall be prosecuted in the name of his legal representative, and it certainly cannot be said in Pennsylvania that there is any legal incongruity or impropriety in requiring an action to be brought in the name of a legal plaintiff for the use and benefit of another person. Besides this, there was strong reason why the Constitution should fix the parties, and give a complete and perfect right of action itself, inasmuch as the object and purpose of this section was to restrain and control the legislature, as otherwise this object and purpose would be defeated by the legislature simply by omitting the action required of them to perfect the right of action. The legislature, in fact, has not attempted to prescribe for whose use these actions shall be prosecuted. By the 19th section of the Act of April 15th 1851, Pamph. L. 674, Purd. Dig. 1093, a right of action was given in all cases of death occasioned by unlawful violence or negligence to the widow, or if there was no widow, to the personal representatives of the deceased, to recover damages for the death of deceased, and left it to the jury to place a money value on the life in the same manner as, in \ other cases they estimate the value of health and reputation: Pennsylvania Railroad Co. v. Mc-Closkey’s Adm’r., 11 Harris 526. The Act of 1855 changed this, and substituted, as the measure of damage, the pecuniary loss suffered by the husband, wife, children or parents, plaintiffs in the action, or for whose use it was brought. This was an entire change of the cause of action, and in a suit under the Act of 1855, nothing can be recovered for any suffering borne or loss sustained by the deceased, but only for the pecuniary loss which his said surviving relatives may have sustained by reason of his death : Pennsylvania Railroad Co. v. Zebe, 9 Casey 318; Same v. Vandever, 12 Id. 298; Same v. Butler, 7 P. F. Smith. 335, and Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185. By these cases it is established that the cause of action, under the Act of 1855, is the pecuniary loss of the deceased’s surviving family, but that cause of action which survives by the Constitution is for the suffering and loss which the deceased sustained in his lifetime and for which he could have recovered damages if he had lived to bring suit and obtain judgment. There is no resemblance between these two distinct causes of action. The difference is recognised and asserted in Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315. There is no conflict between the Constitution and the Act of 1855, they regard different rights, and if the act had been passed immediately after the adoption of the Constitution of 1873, instead of more than eighteen years before, it could, with no propriety or justice, be considered an execution of the power given to the legislature by the twenty-first section of the third article of the Constitution. It does not affect the Constitution, nor is it thereby affected. It was not unconstitutional when it was passed in 1855, and is not so now. Its vigor is unimpaired by the Constitution of 1873, and there are no provisions in the latter which can prevent the passage by the legislature of a supplement extending the provisions of the act to other relatives than those therein named, or to any other persons whatever. There is nothing to prevent the two actions, the one for the injury to the deceased, the other for the pecuniary loss sustained by the family of the deceased, from being maintained at the same time and both pursued to judgment and execution.
    In view of the primary object and purpose of this section of the Constitution, it was a matter of minor importance whether the action was prosecuted for the benefit of the estate of'the deceased or for that of his family. The recovery of the damages was but of secondary consideration of itself, and had its greatest importance in being a means to be used to effect the main purpose. If the main purpose had been to secure the recovery of the damages, surely the framers of this section, when they prohibited the legislature from limiting the amount to be recovered for injuries resulting in death, or for injuries to persons or property, would have given to the right of action for injury to property, and to that for injury to the person not resulting in death, the same_power to survive that they have given to the right when the injury results in death. They would also have made these rights of action survive the death of the delinquent or offending party. But the chief purpose of this section was to protect the lives of all persons in the Commonwealth from destruction by any unlawful cause, and especially by negligence, by making such deaths expensive to those whose crimes or faults should occasion them; and these actions for damages for injuries resulting in death, are the means adopted to effect that purpose. The Act of April 15th 1851, was passed for the same purpose, and made nearly the same provisions. The members of the constitutional convention had seen this act in force for four years, and they and the people who adopted the Constitution seem to have considered its effects salutary. They also saw its provisions frittered Way by the Act of April 26th 1855, and a further effort in that direction made by the Act of April 4th 1868 (Pamph. L. 58, Bright. Purd. Dig. 1094). This was supposed to have been done by the legislature under the influence of certain corporations, some one of which is generally the defendant in a suit brought for a cause of action of this kind. These corporations were certainly in the minds of the members of the constitutional convention, for they are mentioned in this very section, and the legislature is therein prohibited from favoring them with a special Statute of Limitations. The object being to fix permanently the law relating to these injuries and rights of action by a constitutional provision, which would be beyond the power of legislative meddling, it is absurd to suppose that the framers of this provision designed to empower the legislature, intended thereby to be restrained, to prevent its ever going into effect, simply, by omitting to do anything.

      William J. Baldy and John Gr. Freeze, for defendant in error.
    —When the constitutional convention assembled in 1878, and came to consider the article on legislation, and especially what is now the twenty- fifth section thereof, they found the statute law of the state on the subject embraced by it to be: that by the 18th section of the Act of April 15th 1851, Pamph. L. 674, the action for injuries to the person by negligence or default, should not abate by the death of the plaintiff, but that the personal representative might be substituted and prosecute the suit to final judgment and satisfaction — and in case of. death occasioned by unlawful violence or negligence, and no suit brought by the injured party during his or her life, the widow, or if there be no widow, the personal representatives might maintain an action for damages.
    Four years afterwards the subject was again brought to the attention of the legislature, and with the Act of 1851 in their minds, they changed the law, so as to restrict the right to recover damages, for any injury causing death, to the “ husband, widow, children or parents” of the deceased, prescribed to whom the sum recovered should go, and required the declaration in the case to state who are the parties entitled to such action. Pamph. L. 1855, p. 309. Thus following, as Mr. Justice Thompson says in Pennsylvania Railroad Co. v. Adams, 5 P. F. Smith 499, the statute of 9 & 10 Vict. cap. 93, which provides, “ that every such action shall be for the benefit of the wife, husband, parent and child.”
    Since the passage of the Act of 1855 there is no case by the persona] representatives of the deceased; and that they could not sustain an action was settled by this court in The Pennsylvania Railroad Co. v. Zebe et ux., 9 Casey 318, saying, “ The Act of the 26th of April 1855 changed the law so far as the personal representatives were concerned, and conferred the right of recovery only upon parents for the loss of children, and upon children for the loss of parents, and reciprocally upon husband and wife.” And restating the law in stronger terms in the case of The Pennsylvania Railroad Co. v. Vandever, 12 Casey 298. And it is not denied that such was the proper construction of the statute.
    The Act of 1855 also provided that the action should be brought within one year after the death, and not thereafter. Thirteen years afterwards the legislature had the subject again before them, and embodied their views in the Act of April 4th 1868, Pamph. L. 58, “relating to railroad companies and common carriers, defining their liabilities and authorizing them to provide means of indemnity against loss of life and personal injury.” The first section of the . act limits the rule of liability of the company as to certain classes of persons; and the second section limits the amount to be recovered either for personal injuries or loss of life, and defines the basis upon which such compensation for loss and damage shall be recovered.
    Now the whole of this legislation is embraced and covered by the twenty-first section of art. iii. of the Constitution of 1873; and the first clause annuls and avoids the sentence limiting the amount of damage recoverable by the second section of the Act of 1868, but it does not otherwise interfere with it, either as to the basis of assessing the amount of damages to be recovered or as to the distinction between parties injured. The first part of the second clause, going back to the Act of 1851, declares that in case of death from such injuries the right of action shall survive; that is, that the legislature should be restrained from returning to the common-law rule, and taking away all-right of action, as was said by the learned court below. The constitutional right is not additional to the one already existing, nor is that one enlarged. It is certainly not in the words of the instrument, nor if the section stood alone do we think it could be read in it by any natural and legal construction. -
    October 4th 1880.
   Mr. Justice Green

delivered the opinion of the court,

The maxim actio personalis moritur cum persona, was abrogated in Pennsylvania in cases of injuries resulting in death, by legislation, prior to the adoption of the Constitution of 1873. The Act of 15th April 1851 gave a right of action for such injuries to the personal representatives of the deceased. The effect of that act was to make the damages recovered in such actions general assets of the deceased in the hands of the representatives, and of course they were available to creditors in the first instance. It followed that in all cases of insolvent estates of such deceased persons, where the victim of the injury was a husband and father, the widow and children derived little or no advantage from the action, although they were the persons most directly and severely injured. Hence it was that a change was made, and by a new act passed 26th April 1855, the right of action for such injuries was taken away from the personal representatives of the deceased, and conferred only upon parents for the loss of children, and children for the loss of parents, and reciprocally upon husband and wife. So far as this subject is concerned, this was the condition of the law in 1873, when the present Constitution was adopted. Of course as this right of action was derived from legislative enactment it might, in the same mode, be taken away. To prevent this being done a special provision was incorporated in the organic law, declaring that in cases of death resulting from injuries “ the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.” Since the adoption of the Constitution no new legislation has been enacted on this subject. It is plain, therefore, that the Act of 1855 prescribing the persons “ for whose benefit such actions shall be prosecuted,” is still the law. No other persons have been clothed with the right, and hence no other persons can sustain such actions. The present action is brought by an administrator to recover damages for injuries resulting in the death of the intestate. But the legislature has not declared that such a person may maintain such an action, and hence the right to do so does not exist. The designation of the persons for whose benefit such actions shall be prosecuted is expressly referred to the action of the legislature by the language of the Constitution. No such law has been enacted, and hence the inference is irresistible that the persons who may now exercise that right are those, and those only, who could do so at the time of the adoption of the Constitution.

It is argued, however, that such a right exists in the personal representatives, because of the provision in the Constitution that “ the right of action shall survive.” The argument submitted in support of this provision is ingenious, but in our judgment it is entirely fallacious. The provision of the Constitution, coupled as it is, in the same sentence, with the direction that the legislature shall declare who shall exercise the right, would be conclusive that the right itself is a limited one, to be put in force only for certain persons to be prescribed by the legislative body. Hence the inference is not warranted that the right of action is a general one to exist independently of, or without, the appropriate legislation. This conclusion is much strengthened by another consideration of still greater force. The argument is, as it must be, that the personal representatives may recover for the injuries to the person of the deceased, and other persons may recover for the death. Unfortunately for that position, it is not the fact that two separate and independent rights of action are given. The language is, “ and in case of death from such injuries the right of action shall survive,” &c. What right of action ? Manifestly the right to recover damages for the death of the person killed. No other cause of action is created. It is one right, not two, and its very existence, as a right of action at all, is absolutely dependent upon the fact of death. For the injuries preceding the death and independently of it, no right of action is given, and hence there is none to survive. The opposing argument assumes that it exists, and upon the basis of that assumption infers the survival. But the assumption is unwarranted, and, therefore, the inference can not be made. Moreover, it is too plain for argument that the deceased person never had, or could have, a right of action in advance of his death for damages resulting only from his death, and, therefore, again, as the right in him never existed, it could not survive to his representative. In the case of Mann v. Wieand, 4 W. N. C. 6, we held that, the right of action for damages from death by negligence never existed in the deceased; that it was given to, and first existed, in the widow, and hence the defendant was a competent witness in his own behalf in an action against him by the widow. The same principle applies here. We are of opinion that the nonsuit in the court below was properly entered.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Arthurs versus King et al.
    1. In an action of ejectment for a tract of land plaintiif claimed by virtue of two tax titles. The defence was that the Christian Lower tract, of which the land in dispute was a part, was seated, and, therefore, not subject to assessment and sale as unseated land. It was claimed that it was seated in consequence of its connection with the Overdorf tract, on which there were improvements, and that in 1852 both tracts were purchased by the same party, with the view of holding and using them together as one tract, for the purpose of carrying on the lumbering business ; that they were so held, used and assessed, and thus the whole became one tract of seated land ; and consequently the subsequent assessment and sale of the Christian Lower tract as unseated was unauthorized and void. It was alleged that the two tracts adjoined, but it appeared that they were so located as to corner together at a certain hickory tree, and that a portion of another tract, in the form of an acute angle terminating at this common hickory corner, separated the two tracts so that they had no boundary line in common, and, therefore, they could not be considered adjoining tracts, but had simply a corner or point without any line common to both. Held, that they were not such adjoining tracts as would justify their being treated as one tract, so that the one would be seated by reason of the improvements on the other tract.
    2. There is no valid reason why either the owner of land sold for taxes, or a stranger to the title, may not, within the time allowed for redemption, take from the purchaser at treasurer’s sale a conveyance of his inceptive title and hold the same until it ripens into a complete tax title. Where, as in this case, the consideration paid is more than would be required to redeem the land, and a regular assignment of the tax title is executed, it would be unreasonable to infer that the transaction is a redemption and not a purchase.
    June 14th 1880.
    Before Sharswood, C. J., Mercur, Paxson, Trunkey, Sterrett and Green, JJ. Gordon, J., absent.
    Error to the Court of Common Pleas of Clearfield countyOf May Term 1879, No. 8.
    Ejectment by Richard Arthurs against Andrew King and Sidney Fuller to recover about ninety acres of land in Brady township, Clearfield county, Pennsylvania, being the northeast corner of tract No. 110, warranted and surveyed in the name of Christian Lower. (See report of this case on former writ of error in 3 Norris 525.— Rep.)
    These ninety acres are the northeast corner of a tract of land warranted and surveyed to Christian Lower as No. 110, and returned as three hundred and seventy acres. In 1806 a patent was granted by the Commonwealth for the said tract to Elizabeth Holstein and Magdalena Ley. For many years it appeared assessed in the unseated list of lands in Clearfield county to M. Ley’s heirs. At the trial, before Orvis, A. L. J., it was admitted that the taxes on tract 110 were regularly paid until 1850, and the title thereto regularly vested in Henry Zimmerman, of Schuylkill county, who died on May 18th 1857, leaving a will directing his executor to sell his real estate. Arthurs, the plaintiff, claimed the land by virtue of a purchase from Zimmerman’s executor, in" June 1860. And also, under two tax sales, one made in August 1858 to Richard Shaw, and the other in June 1862 to himself. Each sale was made for taxes of the two preceding years.
    The defence set up was first, a prior sale made in 1852-, by parol from Henry Zimmerman to David P. Boyer, which title having been transferred from Boyer to Rouse & Co., and to one Bascom, and the deed having been executed to Bascom by Zimmerman in February 1854 ; and that Arthurs at or before his purchase having received notice, or what legally amounted to notice of this title, did not, by his purchase from Kitzmiller, the executor, obtain such a title as would be good against Bascom. Second, that the two tax titles were invalid because the land was seated. It was alleged to be seated in two ways: first, by reason of a small improvement, called the Reisinger improvement, along the southern line of tract No. 110; and secondly, on the ground that a tract of about forty-two acres, called the Overdorf tract, which included an old improvement of about five or six acres with a log house thereon, constituted, with No. 110, but one tract, and that the improvement on the Overdorf part rendered the whole seated. They do not join or touch each other, except at a single corner. Boyer put up a steam saw-mill and house on the east end of the Overdorf piece, in 1852.
    The foregoing facts, together with the assignments of error set forth below, sufficiently state the case and show the questions raised and passed upon by this court. The verdict was for defendants, and after judgment plaintiff took this writ and alleged that the court erred, inter alia, as set forth in the following assignments of error:
    3. The court erred in the general charge, in saying:—

      “ If you find from the evidence, that in 1852, when Dr. Boyer purchased both of these tracts, he united them for the purpose of a lumbering establishment; that he bought them for the purpose of using them together, that he did so use them as one tract, making no distinction between them, and afterwards sold them as one tract; that the purchasers, D. B. Rouse & Co., used them as one tract, that they were returned for assessment in 1856, in the seated list as one tract, containing 500 acres, although originally two tracts, yet this would make them one for the purposes of assessment and taxation. The assessors subsequently would have no right to assess the Christian Lower separate from the Overdorf without the knowledge and consent of the owner; and if the Overdorf was seated, it would have the effect of seating the entire body, and a sale of the Christian Lower as an unseated tract in 1862, would bo invalid and convey no title. These are our instructions so far as the general principles involved in this case are concerned.”
    “ If you further find that Boyer bought,' that he united them and used them together as one tract, treating them as one before any of these taxes were assessed, and that these tracts were returned in 1856 as a single tract and so assessed, the assessor subsequently would have no right to separate them and return the Christian Lower as an unseated tract without the knowledge and consent of the owner, although there was no improvement at the time upon the Christian Lower.
    “ But it is alleged that from the time Boyer bought these two tracts down until after the commencement of this suit, the owner supposed that the Overdorf ran some distance along the line of the Lower, that they were joined for a distance of some three or four rods. The owner of the Casper Stiver, an intervening tract, supposed and believed the same thing. The owners of the Lower and Overdorf tracts cut across the point of the Stiver and hauled timber across there as though it was their land. The question is not how the tracts were originally located, but how they were occupied and used. If they were so occupied and used, it would have the effect to make the two tracts one, as much as though they actually adjoined for some distance. All the parties supposed the Overdorf to lie alongside of the Lower, as appears by the deeds given in evidence, both by plaintiff and defendants. The deed to Zimmerman; the one from Zimmerman to Bascom, and the one from Kitzmiller, executor, to Arthurs, each recite that the Lower starts at the hickory and runs south along the Overdorf tract. All the owners and claimants of these lands supposing that these two tracts adjoined, for some distance having used and occupied them as though they did, it can now make no difference that it is discovered that according to the official survey they only adjoin at a corner, an acute angle of the ‘ Casper Stiver ’ coming in between them.”
    6. The court erred in answering the plaintiff’s eighth point:—
    If the jury believe that the Overdorf survey and the Lower survey, being separate surveys, the Lower survey being made the 2d day of Angust 1785, the other about the year 1841, are not connected on the ground except as shown by the official drafts at a point at the hickory corner, the northwest corner of the Lower tract No. 110, and that they do not adjoin each other in any other way than is shown by the official drafts, the seating of the Overdorf tract would not seat the Lower tract, No. 110, in any event.
    Ans. “We refuse to affirm this point, as we have already instructed you if the parties purchased, united, used and occupied these two tracts together as one, and believed at the time that they joined for some distance, and the owner of the ‘ Casper Stiver ’ .never claiming the intervening land, such ownership, use and occupation of the Overdorf and Lower tracts as one, would make them one tract for the purposes of taxation, and the improvement of the Overdorf tract would seat the whole.”
    11. The court erred in answering the plaintiff’s thirteenth point:—
    If the jury believe that the improvement made upon the west end of the Overdorf tract was not connected with tract No. 110 by any road or passage-way leading from one to the other, it is a strong evidence to rebut the allegation of even using or intending to use both tracts as one, and if they had to pass over tract No. 155, warranted to Casper Stiver, to enter from one tract to the other the seating of the Overdorf tract as shown -would not seat the Lower tract.
    Ans. “We decline to affirm this point.”
    13. The court erred in answering the 16th point of plaintiff. If the defendants or Bascom or Boyer owned tract No. Í10, and the Overdorf tract, it being seated on the west end, would not make one tract of the two or seat the Lower warrant.
    Ans. “ That would depend upon circumstances, as we have said to you in our general charge. We refer to what we have said as answering this point.”
    21. The court erred in answering the defendant’s 8th point. That if the defendants, or those under whom they claim, bought, claimed, used and returned for assessment the Overdorf lot and No. 110, as one tract, in contemplation of law they should be regarded as one tract.
    Ans. “ If you find the facts as stated the law would be so. We submit to you, as a question of fact, whether they did purchase, use, occupy and return for assessment the two tracts as one, as here stated.”
    2. The court erred in saying to the jury : If you find that the plaintiff, in pursuance of his purchase from Kitzmiller, and claiming to be the owner of this tract, bargained with Richard Shaw for a transfer of the treasurer’s deed for - the amount necessary to redeem the land from the tax sale, and actually took a transfer of the treasurer’s deed before the 18th of July 1860, the time when the right of redemption expired, this would, in law be a redemption from that tax sale.
    20. The court erred in answering the defendant’s 4th point. That if Richard Arthurs, by virtue of his claim of title which he purchased or had contracted for from Kitzmiller, bought the treasurer’s title from Shaw before the time for redemption had expired, for the taxes and costs and a nominal excess, it would operate as a redemption and would not sustain a recovery in this case.
    Ans. “ We have already so instructed you in our general charge ; we therefore affirm this point.”

      Richard Arthurs, p.p., for plaintiff in error.
    The court charged that Boyer purchased those tracts and united them for the purpose of lumbering, hut do not say how this could-be done. They say he bought for the purpose of using them together. What does it matter for what purpose if they could not be so used. They further say he did so use them as one tract; but neither court nor jury are informed how he used them ; certainly in no other way than in cutting some logs on tract No. 110, and hauling over the point of the Stiver tract, No. 155, to the mill or creek for a short time.
    When this case was here before, this court said they had no means of knowing how this land laid. It was a question for the jury. As our tenth point then was too hypothetical and did not •leave the question of location to the jury, it is now left to the jury. Besides the Casper Stiver tract, calls for tract No. 110, on the whole western boundary of No. 110, which was overlooked before. It will not be pretended, if there was a piece of wild land owned by one person, and another person had a farm on one side and a wild tract on the other, that he could in any way connect one to the other, so as to make 'one tract out of two, with another owner between them, even by his consent to use, occupy or cross over his land. The middle owner could turn him out at pleasure, the outside owner would be a tenant at will of the middle man. So in this case, this line runs to a point at the hickory corner. Point has no extension, length or breadth. The Casper Stiver lot stood as a middle man in this case. In this case the defendants did not show title or possession in John DuBois, or that he ever used or allowed the defendants to cross the corner of this Stiver tract.

      Wallace Krebs and Jenhs & Clark, for defendant in error.
    Many properties in the state are derived from different sources of title, and are composed of parts of different warrants. After a unity of ownership, it has been common for the owner to subdivide and utterly ignore the old warrant lines. The same farm is not unfrequently composed of parts of different tracts, the cultivation being on one part, and the woodland on another. The principle as enunciated by the court is sustained by the case of Harper v. Mechanics’ Bank, 7 W. & S. 204, in which ten tracts were assessed together as seated. Most of them were unseated, but others were seated. A sale was made of the unseated tracts and declared void because of the unity of ownership and assessment, the court sustaining the right of the owner to unite several tracts for use and taxation. The case of Larimer v. McCall, 4 W. & S. 133, recognises the same principle and denies the right of the assessor to change the assessment without notice to the owner, so as to assess part as seated and the residue as unseated. The same principle by its converse is asserted in the cases of Harper v. McKeehan, 3 W. & S. 238, and Russell v. Wentz, 12 Harris 338. In these cases different tracts, owned by a common owner, but purchased at different times, were assessed and sold as one tract, and the proceeding sustained. See also, Heft v. Gephart, 15 P. F. Smith 517: Hole v. Rittenhouse, 1 Casey 491; Brown v. Day, 28 P. F. Smith 129. But the plaintiff in error claims that the two parts of this tract only touched at a common point, and therefore they could not be properly assessed together. This alleged fact was fully rebutted by the testimony of John DuBois, the owner of the Casper Stiver tract, whose land it is claimed cut off a portion from the Overdorff lot on its southeast side, and thereby forced its lines to a point at a hickory, a common corner of the Overdorff and Lower lots.
    October 4th 1882.
   Mr. Justice Sterrett

delivered the opinion of the court,

The land in controversy was claimed by the plaintiff under three separate and distinct titles. One of these was derived from Henry Zimmerman through the deed of his executor, made in June 1860 pursuant to a power of sale contained in his last will and testament ; the other two were tax titles, founded on treasurer’s sales made respectively in 1858 and 1862.

It was conceded that in 1850 the title to the land was vested in Mr. Zimmerman. This admission, coupled with the power of sale and conveyance by the executor in pursuance thereof, made a clear prima facie case for the plaintiff, but the defendants claimed and introduced testimony to prove that Zimmerman, long before his decease, sold the land to Dr. Boyer, from whom they derived title, and that plaintiff purchased from the executor with full notice of the previous sale. The principles of law involved in this contention were correctly applied by the court, and the questions of fact connected therewith were fairly submitted to the jury. The learned judge, after specially directing attention of the jury to the testimony, instructed them that if the facts were as alleged by defendants no title remained in Zimmerman at the time of his death which his executor could transfer to the plaintiff; that it was therefore an important fact for them to determine whether or not the deed was delivered in the lifetime of Zimmerman; that if he simply made and retained the deed without delivering it to Boyer, or any one for him, it would not have the effect of divesting his title, and either he or his executor might sell the land and make a good title to the purchaser. It appears by their verdict that the finding of the jury on the question thus submitted to them must have been adverse to the plaintiff. It is unnecessary to notice in detail the several assignments of error on this branch of the subject. They neither involve any essential principle that was not sufficiently considered when the case was here on former writs of error, nor do they disclose any just ground of complaint on the part of the plaintiff.

The main ground of defence, common to both tax titles, was that the Christian Lower tract, of which the land in dispute is a part, was seated and therefore not subject to assessment and sale as unseated land; and, in support of this position, the defendants made an unsuccessful effort to show that it was seated by reason of the Reisinger improvement, made on or near the southeast corner of the tract sometime prior to the year 1849. They also insisted that it was seated in consequence of its connection with the Overdorf tract, on which there were improvenjents. They claimed that in 1852 or thereabouts, both tracts were purchased by the same party with the view of holding aud using them together as one tract, for the purpose of carrying on the lumber business; that they were so held, used and assessed, and thus the whole became one tract of seated land; and consequently the subsequent assessment and sale of the Christian Lower tract as unseated was unauthorized and void. The learned judge instructed the jury, in substance, that this was so if they found the facts to be as claimed by the defendants. In this we think there was error. It was clearly shown that the tracts were not adjoining, and there was no competent or sufficient testimony to justify the jury in finding otherwise. When the case was here on former writ of error, it appeared to be a question of fact under the testimony then before the court, whether the Lower and Overdorf tracts' did not adjoin at least for a short distance southerly from the hickory, which was admitted to be the common corner of both; but, from the connected drafts of the original surveys of the two tracts and the Casper Stiver tract, together with the testimony of witnesses introduced on the last trial, it clearly and conclusively appears that the three tracts are so located as to corner together at the hickory; that a portion of the Casper Stiver tract, in the form of an acute angle, terminating at the common hickory corner, separates the other two tracts so that they have no boundary-line in common, and therefore cannot be considered adjoining tracts. They have simply a corner or point without any line common to both. The learned judge, in his charge, says: “ It would appear that the old surveys were made in March 1785. The Christian Lower and Casper Stiver cornered at a common point, a hickory. These two tracts were located the same year; the Lower some days earlier than the Stiver. The Edward Overdorf was not located until 1841. It seems to have cornered upon the same hickory, so that, according to the original survey, the Lower and Overdorf tracts only united at a common corner at the point where the hickory stood.” The facts thus stated fully accord with the uncontradicted testimony in the case, and clearly entitled the plaintiff to at least an unqualified affirmance of his eighth, thirteenth and sixteenth points. There was no conflicting testimony as to the original location and relative position of lines of the three original surveys, as shown on the corrected drafts, nor was there any competent testimony to show that these lines were ever changed, or that the owners of either the Lower or Overdorf tracts ever acquired title by purchase, possession or in any other legitimate way, to the point of the Stiver tract which separates the two first-named tracts. The third, sixth, eleventh, thirteenth and twenty-first assignments of error are sustained.

In view of the testimony, there was also error in that part of the charge embraced in the second assignment; and in the answer to the defendant’s fourth point, which is the subject of complaint in the twentieth specification of error. The deed from Zimmerman’s executor to the plaintiff is dated and acknowledged June 11th 1860, and the evidence is, that on the same day he procured from Richard Shaw an assignment of his inchoate tax title. There is nothing in the testimony to indicate that this was intended as a redemption of the land from the tax sale, nor does it follow as a matter of law that it was a redemption and not an acquisition of the tax title. There is no valid reason why either the owner of land sold for taxes, or a stranger to the title, may not, within the time allowed for redemption, take from the purchaser at treasurer’s sale a conveyance of his inceptive title, and hold the same until it ripens into a complete tax title. Where, as in this case, the consideration paid is more than would be required to redeem the land, and a regular assignment of the tax title is executed, it would be unreasonable to infer that the transaction is a redemption and not a purchase.

There appears to be nothing in any of the assignments of error that calls for further notice.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Green

text:
    Snyder’s Appeal.
    A testator directed that his real estate should be sold, and then gave and bequeathed his estate, upon the death of his wife, to his seven children and to his grandson, H., share and share alike, ‘‘and in ease my said grandson IL, shall at any time die without issue, I then give and bequeath the bequest of him, the said H., so dying, unto all my children, to share and share alike.” The grandson survived the testator and died without issue : Held, that it was the testator intended a definite failure of issue at the time of the grandson’s death, and that, therefore, the bequest over to the testator’s children took effect.
    June 14th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green,, JJ.
    Appeal from the’ Orphans’ Court of Snyder county: Of May Term 1880, No. 219.
    Appeal of Jeremiah Snyder and others from the decree of the court in the distribution of a fund in the hands of the guardian of Allen S. Hummel, deceased.

      George A. Snyder died December 14th 1871, leaving a will dated February 27th 1869, which contained, inter alia, the following direction:
    “ And, further, I bequeath unto my beloved wife out the third of all my other real and personal property as soon after it is sold as can be made convenient for the and at her decease I give and bequeath unto my children as follows, viz.: Jeremiah Snyder, Lewis Martin Snyder, George A. Snyder, Jacob Peter Snyder, William H. Snyder, Samuel J. Snyder and my daughter Margaret Elizabeth, intermarried to William Hains, and my grand son, Allen Hummel, child of my late deceased daughter, Emma Catherin, share and share alike, and in case my said grand son, Allen Hummel, shall at any time die without issue I then give and bequeath the bequest of him the said Allen Hummel so dying unto all my children, viz., Jeremiah Snyder, Lewis M. Snyder, George W. Snyder, J. P. Snyder, William H. Snyder, Samuel J. Snyder and my daughter, Elizabeth Hains, to share and share alike.”
    All the children and the grandson named in the above clause of the will survived the testator. The share of the grandson, Allen S. Hummel, amounting to $1732.09, was paid to his guardian. Allen S. Hummel died on October 6th 1879, a minor, unmarried and without issue. His guardian filed his account, wherein it appeared that the original amount, $1732.09, received from his grandfather’s' estate, was in the guardian’s hands, which, with interest thereon, less certain expenses and commissions, amounted to $2252.48. John P. Cronmiller, Esq., was appointed auditor to distribute this fund, before whom it was claimed by the children and heirs of George A. Snyder, deceased, on the ground that Allen S. Hummel had died without leaving issue, while his father claimed it as his heir-at-law or next of kin under the intestate law. In making their claims no distinction was made by either claimants between the principal and the interest of the fund.
    The auditor reported: “ From a careful examination of the authorities on clauses in wills which have been before courts for construction of the same or similar words, the auditor is of the opinion that the words in the will of George A. Snyder, deceased, import an indefinite failure of issue, and according to the authorities, this would give Allen S. Hummel an estate tail in the real estate, and an absolute and vested interest in the personal property: Amelia Smith’s Appeal, 11 Harris 9; Mengel’s Appeal, 11 P. F. Smith 248; Biddle’s Appeal, 19 Id. 194.
    “ The real estate of the testator was converted into personalty by the directions in the will to sell the same. It was in fact converted after the death of the testator, and the share of Allen S. Hummel paid over to his guardian, Edward Bassler, Esq., without any condition whatever. The auditor is, therefore, of the opinion that the balance in the hands of the guardian was vested in the said Allen S. Hummel during his lifetime; that the gift being limited over on an indefinite failure of issue, by operation of the rule of law in such cases the gift over was void for remoteness, and it therefore passed and vested in him absolutely, and his father, John Hummel, under the intestate laws of this Commonwealth, is entitled to receive the payment of the balance in the hands of said guardian.”
    October 4th 1880.
    The children of George A. Snyder filed exceptions, which the court overruled, and confirmed the report, when said children took this appeal.

      Charles Hower, for appellants.
    Under the provisions of this will Allen S. Hummel simply took a life estate in the property bequeathed to him. From the language used in the will an indefinite failure of issue is not to be inferred: Hopkins v. Jones, 2 Barr 69; Sheetz’s Estate, 2 P. F. Smith 257 ; Koppenhaffer’s Appeal, 6 Norris 196; Seibert v. Butz, 9 Watts 490; Eichelberger v. Barnitz, Id. 450; Emma Myers’s Appeal, 13 Wright 111; Caldwell v. Skilton, 1 Harris 151, 157; Kelso v. Dickey, 7 W. & S. 279.

      S. P. Wolverton, for appellee.
    Many authorities might be cited to show that the decisions have been uniform in declaring such phrases as found in the will of George A. Snyder to import an indefinite failure of issue vesting in the first taker a fee simple in the real estate and an absolute title in personalty. The language in this will is, “ shall at any time die without issue,” which more certainly imports an indefinite failure of issu'e than in any of the decided cases. The language stands alone and not qualified by any other expressions in the will, and must receive the construction that the law has placed upon it by a long unbroken line of-decisions. The cases cited in the argument of counsel for appellant are easily distinguishable from the numerous cases that show that Allen Hummel took a vested legacy under his grandfather’s will.
   Mr. Justice Green

delivered the opinion of the court,

The testator, George A. Snyder, directed all his real estate to be sold. The proceeds, together with his personal property, constituted the estate of which he disposed. It was, of course, all personal estate. Subject to a provision in favor of his widow during her life, he gave the whole of it in equal shares to his six sons, a daughter and a grandson, Allen S. Hummel, the child of a deceased daughter. The will then provides as follows: “ And in case my said grandson, Allen Hummel, shall at any time die without issue I then give and bequeath the bequest of him, the said Allen Ilummel so dying unto all my children, viz., Jeremiah Snyder, Lewis M. Snyder, George W. Snyder, J. P. Snyder, William II. Snyder, Samuel J. Snyder and my daughter, Elizabeth Ilains, to share and share alike.” Allen S. Hummel, the grandson, died, unmarried and without issue, on October 6th 1879. The tastator died December 14th 1871. In November 1879 the guardian of Allen S. Hummel filed his account, showing a balance of §2252.48 in his hands. Of the entire fund a part, §1782.09, was received from the administrators of George A. Snyder, deceased, on March 3d 1873, and another part, §668, was an accumulation of interest upon the above -sum for upwards of six years, while the fund was in the hands of the guardian, none of which appears to have been expended in the support of the ward. On the hearing before the auditor the fund in the hands of the guardian was claimed by the children of George A.' Snyder as substituted legatees under their father’s will on the one hand, and on the other by John Hummel, the father of Allen S. Hummel, as his distributee under our intestate law.

No question was raised before the auditor or in the Orphans’ Court as to any difference between the principal sum of the legacy and its increment of interest after the death of George A. Snyder.

The former was clearly subject to the provisions of the will under which it was derived, but the latter was the absolute property of the ward and must be disposed of as his in the distribution of his estate, unaffected by the will of his grandfather. The entire fund was awarded by the auditor and court below to John Hummel upon the ground that the limitation over to the other legatee named in the will, being upon an indefinite failure of issue, was void, and the interest of Allen S. ITummel in the bequest to him was absolute and must pass to his father as his distributee. Was this ruling correct ? That depends upon various considerations.

There is no doubt that in devises of real estate, as a general rule, a limitation over upon an indefinite failure of issue of- the devisee creates an estate- tail which under our Act of 1855 becomes a fee simple, and, if the estate of the first taker is a fee, the limitation is void for remoteness. In the present case the subject-matter of the contention is personal estate exclusively.. It has for a very long time been held that in bequests of personal estate the rule of construction upon a limitation over on a dying without issue is quite different from the rule which prevails in devises of real estate upon the same kind of limitation. In the case of Pinbury v. Elkin, 1 P. Williams 563, the lord chancellor said that the words ‘ dying without issue’ had several senses; as, first, a legal sense when there was a failure of issue of a tenant in tail so as to entitle the remainderman or reversioner to a formedon in remainder or reverter, which is whenever there is a failure of issue of the body of tenant in tail. Secondly. Another sense of dying without issue was, if the party died without ever having had issue * * * But by the third sense of a person’s dying without issue is intended without leaving issue at the time of his death, and in this sense the words ‘ dying without issue’ shall be taken in the principal case, which, indeed, seems to be the natural meaning of these words.” * * * “Moreover, in the principal case, the words import strongly that they are to be intended in this sense, to wit, dying without issue living at the party’s death, because the legacy of 80l. being the legacy in question, if the wife should die without issue by the testator, then after her decease is to remain to the testator’s brother, which words then after, i. e., immediately after, would be inconsistent and repugnant if the dying without issue should be taken in the other sense whenever there shall be a failure of issue; for this would be carrying the payment beyond the day ; it would be as absurd as to appoint the day of payment to be to-morrow' if it shall rain this day twelve month, which is to make the condition overreach the day of payment.” * * * “Also,” his lordship said, “that taking the 80l. as intended to be given whenever there should be a failure of issue of the body of the testator’s wife by him, this would be a strange clog upon a personal estate, and subjecting it to the payment of a sum of money (as it might happen) one hundred years hence when it would be no kindness to the legatee in whose favor it was personally intended.”

In Hughes v. Sayer, 1 P. Williams 534, it was held that a bequest of personal estate to A. and. B., and if either die without children then to the survivor, and if both should die without children, then to the children of the testator’s other brothers and sisters,was a good limitation over to the substituted legatees. The lord chancellor held that “the words ‘dying without children’ must be taken to be children living at the death of the party. For that it could not be taken in the other sense, that is whenever there should be a failure of issue, because the immediate limitation over was to the surviving devisee, and it was not probable that if either of the devisees should die leaving issue the survivor should live so long as to see a failure of issue, which in notion of law was such a limitation as might endure for ever.”

In both the foregoing cases the limitation over was held to be good upon the ground that the testator must have intended the words “dying without issue” to mean not an indefinite- failure of issue, but a failure of issue living at the death of the first taker. And the intention of the testator was inferred from the very words of the bequest, and not from other provisions of the will.

In the case of Forth v. Chapman, 1 P. Williams 666, the lord chancellor said “ that the reason why a devise of a freehold to one for life, and if he die without issue, then to another, is determined to be an estate tail, is in favor of the issue that such may have it, and the intent take place; but that there is the plainest difference betwixt a devise of a freehold and a devise of a term for years, for in the devise of the latter to one, and if he die without issue, then to another, the words ‘ if he die without issue’ eanno-t be supposed to have been inserted in favor of such issue, since they cannot, by any construction, have it.” * * * “As to the freehold, the construction should be, if William or Walter died without issue generally, by which there might be at any time a failure of issue; and with respect to the leasehold, that the same words should be intended to signify their dying without leaving issue at their death.”

The doctrine of these cases has been repeatedly recognised and enforced in Pennsylvania. Thus in Clark v. Baker, 3 S. & R. 479, this court, Tilghman, C. J., said: “These words without leaving issue applied to personal estate, have been held to mean issue living at the death of the person to whom the property is given in the first instance. But not so with regard to land. This is the distinction taken in the case of Forth v. Chapman, 1 P. Williams 667, and it is well founded, because it carries into effect the intention of the testator. It would answer no purpose to understand issue indefinitely, in the case of personal property, because the law would not permit that issue to take. But it answers the best purpose in case of real property, because the issue may take accordingly.”

In Hopkins v. Jones, 2 Barr 71, it.was held that “the words ‘ die without lawful issue’ are to be construed, in case of personal estate, to mean ‘ die without leaving lawful issue where that corresponds with the testator’s intent.’ ”

In Seibert v. Butz, 9 Watts 494, it was held by Gibson, C. J.: “ There is, perhaps, no case in which the limitation over of personal estate, after an indefinite dying without issue, whether the first limitation were indefinite or expressly for life has ex vi termini been confined to a dying without issue at the time of the death; but the courts have seized with avidity on any circumstance, however trivial, denoting an intent to fix the contingency at that period.” The circumstance seized upon in that case was that the limitation over was upon the legatee’s dying “without heirs or testament.” The court held that though there might be “an indefinite dying without issue, there can be no indefinite dying without a will,” and they therefore construed the language to mean .a dying without heirs living at the decease of the legatee, upon the ground that such must have been the intent of the testator.

In the case of Eichelberger v. Barnitz, 9 Watts 450, the leading case in Pennsylvania declaring the general rule in cases of real estate, the exceptions to it were also stated as follows: “ The exceptions to the application of the general rules are either in cases of personal estate in which the construction is more liberal in favor of executory devises ; or when the time at which the devise over is to take effect is expressly or impliedly limited to a particular period within a life or lives in being and twenty-one years after; as where the contingency is, if the first taker die without issue before arriving at twenty-one, or if he die unmarried and without issue, or if he die without leaving issue behind him, or living at the time of his decease, or if the devise over be of a life estate, which implies necessarily that such devise over may outlive the first estate; in all these cases the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure of issue.”

In Sheetz’s Appeal, 2 P. F. Smith 257, the testator gave his real and personal estate to his children by name in equal shares, but coupled with a direction that the executoi’s should invest the property so far as it should be converted into money, and the interest and rents should be paid to the children during their lives, and after their deaths the principal to their children. There was a limitation over in these words, “ Provided, however, that if any of my said children should die without issue, the share, purpart or dividend of such heir shall be equally divided amongst the survivors or children of the survivors of such heir.” The court below held that the children took a fee simple in the real estate and an absolute estate in the personalty. But this court, reversing that decision, held that the children of the testator took but a life interest in both ,the real and personal estate with remainder in fee to their children. Strong, J., in delivering the opinion of the court, said, on p. 263: “ No principle is better settled than that if a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. * * * Both the admitted rules of legal construction and the statute regard a limitation over after the death of the first taker as evidence of an intention that the devisee or legatee of the prior estate in order of enjoyment is to have no more than an estate or interest for life.”

In Emma Meyers’s Appeal, 13 Wright, Read, J., says, on page 113: “In Re Wynch’s Trusts, 17 Jur. 588, Yice Chancellor Stuart says, page 593, ‘ words importing a gift to issue or a gift over on failure of issue when applied in a will to personal estate, receive a different construction from that which they would receive if applied to real estate.’ ” On page 114 he refers to and approves of Clarke v. Baker, 3 S. & R. 477, and Forth v. Chapman, 1 P. Wms. 667, above cited.

In the case of Hill v. Hill, 24 P. E. Smith 173, this court, Sharswood, J., said: “ It is too well settled by a long train of authorities to be now a question that a devise in fee, with a limitation over upon the death of the first taker leaving no issue, reduces the estate in fee to an estate tail. Eichelberger v. Barnitz, 9 Watts 447, is the leading case, and it has never been shaken. On the other hand, it is equally clear that if there is anything in the will which indicates the intention of the testator that this word ‘ issue ’ shall not mean ‘ issue indefinitely ’ but children, then this construction does not apply.” In that case the limitation over was, “ if my daughter Sarah die leaving no issue or child,” her .share should fall back, &c., and we hold that the words “ or child” were evidence that the testator intended a failure of children and not a failure of issue generally, and therefore that the devisee did not take an estate tail so as to alien it as a fee under the Act of 1855.

In Middleswarth’s Adm’r v. Blackmore, 24 P. F. Smith 414, the devise was to Jonathan absolutely of certain real estate, with a a direction that if he died without leaving any legitimate issue, the property was to be sold by the executors and the proceeds to be given partly in charity and partly to the testator’s legitimate grandchildren, by his children who had been previously named. We held, reversing the court below, that the direction to the executors to sell, and to pay the proceeds to grandchildren whose parents were previously named in the will, were sufficient evidence that that an indefinite failure of issue was not intended. Speaking of the direction to the executors to sell, we said: “It manifestly indicates that this failure will occur during the lifetime of some one of his executors named.” As to the bequest of the proceeds, we said “all the authorities concur in saying that the devise over should be considered in determining whether the estate should vest on the death of the first taker. In distributing the proceeds of the land in which his wife had a limited use, he gave the names of the several parents of his grandchildren who were to take; thus fixing beyond any question that the recipients should be no further removed from him. In the latter distribution, he does not unnecessarily repeat the names of the parents of his grandchildren, but evidently had the same persons in view. This excludes the idea that the issue of Jonathan had reference to some remote period of the future.”

In the present case the question is, what was the intention of George A. Snyder as to the time when the failure of issue of Allen S. Hummel should occur, upon which the legacy to him was limited over. Did he mean that it was to occur at the death of Allen S. Hummel, or at some remote period in the future ? If the latter, the limitation being upon an indefinite failure of issue, and the bequest to Allen being absolute, his interest in the bequest was an absolute estate, and it cannot be given to the persons to whom it was bequeathed by the express words of the will. But if the former was his meaning, then it was a limitation upon a definite failure of issue, and the substituted legatees must take the fund. The will was written by the testator, who was a farmer, and its language is so extremely defective in grammatical expression and technical precision that it is in places almost unintelligible. Of course; the distinction between a definite and an indefinite failure of issue was to him an unknown subject. But the persons whom he desired to enjoy his estate, and the time when he wished them to receive their shares, were matters entirely within his comprehension, and for them he made provision in his own homely way. His wife was to have such of the furniture as she'desired, the real estate was to be sold and one-third of the proceeds he set apart for her use during life. She was to be permitted to occupy one of his houses, but if she chose not to do so, his “ children ” were to provide her a home by purchasing a house and lot for her use. One-third of all the estate is again given for the use of his wife, and he then provides as follows: “ And at her decease, I give and bequeath unto my children as follows, viz.: Jeremiah Snyder, Louis Martin Snyder, George A. Snyder, Jacob Peter Snyder, William H. Snyder, Samuel J. Snyder and my daughter Margaret Elizabeth, intermarried to William Plains, and my grandson, Allen Plummel, child of my late deceased daughter Emma Catharine, share and share alike, and in case my said grandson, Allen Hummel, shall at any time die without issue, P then give and bequeath the bequest of him, the said Allen Hummel so dying, unto all my children, viz. : Jeremiah Snyder, Lewis M. Snyder, George W. Snyder, J. P. Snyder, William H. Snyder, Samuel J. Snyder and my daughter Elizabeth Plains, to share and share alike.” He refers to an account-book which, by the description of it in the previous part of the will, evidently contained a memorandum of advancements to his children, and directs in somewhat obscure language that his “ children ” shall all be made equal. His “ children ” are the direct objects of his bounty. They are described both as a class and by the express mention of their individual names. The bequest of Allen S. Hummel is given to the same persons, their names being repeated and without including their heirs or representatives. Pt is entirely clear to us that he intended the same persons and no others to take Allen .Hummel’s share in the contingency of his dying without issue, as those who were to take the residue of his estate. He says so in the most positive manner, and his description of those persons is so circumscribed that we can make no other inference as to their identity. But if this be so, the failure of issue contemplated by the testator must have been such as would naturally occur within the lifetime of the substituted legatees or some of them. We are not at liberty to believe that he had in his mind the vesting of the interests limited over, at some indefinite period in the future when Allen S. Hummel should or might be without issue in the strictly, technical sense of the expression. Plis language is, “ And in case my said grandson, Allen Plummel, shall at any time die without issue, P then give and bequeath the bequest of him, the said Allen Hummel so dying, unto all my children,” &c., naming them. That is, at whatever time Allen dies, then, viz., at the time' of his death, the bequest to him so dying shall go to the testator’s children. The time of Allen’s death is here referred to in three modes as the period of the determination of his estate, and at that time and upon the happening of that contingency without issue of Allen, the. same estate is given to living persons who are specially named, and without any words of succession to others in the event of their death. This expression, then, in connection with the limitation over, received precisely this construction in the case of Pinbury v. Elkin, 1 P. Wms. 563, heretofore cited.

We are of opinion that the testator intended that his own children should take Allen S. Hummel’s share if Allen died without issue living at the time of his death, and as that is a case of a definite failure of issue, it follows that Allen’s interest was a defeasible one terminable at his own death. The decree of the court below must therefore be reversed. This decision, however, can only operate upon so much of the fund as was affected by the will of the testator. That portion of the fund is the amount received from the administrators of George A. Snyder, to wit, $1732.09. From this sum should be deducted its proportionate share of the expenses of the administration of the- fund by the guardian and also of the costs of the audit upon his account and of this appeal. The first and second assignments of error are without merit and. are dismissed.

Decree reversed and record remitted for further proceedings, with direction to the court below to correct the account and distribution by awarding to the appellants the sum of $1732.09, less its pro rata share of all the expenses of the administration of the fund and of the costs of the audit and of this appeal, and to John Hummel the sum of $672.69, less its pro rata share of the same expenses and costs, the costs of this appeal to be paid out of the fund for distribution.

Justices Gordon and Trunkey dissented.


author: Mr. Justice Paxson

text:
    Wingerd versus Fallon.
    1. Where a husband is honestly indebted to his wife and other creditors, he may lawfully confess a judgment in her favor which will secure her in preference to said creditors.
    2. Where a wife, as a part of the distributive share of her father’s estate, takes an assignment of notes given by her husband to her father, such an assignment is a valid consideration for such a confession of judgment, by the husband to the wife, for the amount of said notes with interest. .
    3. Included within the amount of such a confessed judgment was a note which had not been so assigned, but payment of which had been assumed by the wife, she agreeing with the other distributees that it should be consid ered an advancement and deducted from her share of the estate: Held, that the amount of the note with interest was properly included in the judgment.
    4. The issue of execution upon a judgment thus confessed, preferring the wife to other creditors, is not of itself evidence of fraud, and unsupported by other evidence it was error to submit to the jury the question of fraud.
    June 15th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Franldin county: Of May Term 1880, No. 149.
    Feigned issue wherein Charles H. Fallon and Lizzie G. Fallon, his wife, were plaintiffs, and Virginia O. Wingerd, defendant, to try the validity of a judgment confessed by Adam B. Wingerd in favor of Virginia C. Wingerd, his wife.
    On the 23d of December 1878, A. B. Wingerd executed a judgment bond to John Stewart, in trust for his wife, Virginia C. Wingerd, for the sum of $10,000. Judgment was entered on the 24th of February 1879, and on the same day an execution was issued thereon by virtue of which the personal property of the defendant was sold to Mrs. Wingerd for $1537.21.
    On the 14th of February 1879, Charles H. Fallon and Lizzie G., his wife, brought suit against A. B. Wingerd, on a note for $1000. Judgment was entered on the 7th of March 1879, for $1040, and the same day a fi. fa. issued, and defendant’s personal property was seized in execution. The proceeds of the sale of the personal property, $1537.21, were paid into court, and constituted the fund in controversy. Lizzie G. Fallon presented her petition to the Common Pleas of Franldin county, praying that an issue might be framed to test the validity of Mrs. Wingerd’s judgment. The court directed the three following issues : 1. Whether, on the 24th of Febrnary 1879, when Adam B. Wingerd confessed said judgment, for $10,000, to his wife, Virginia C. Wingerd, he was in fact indebted to her in said sum. 2. Whether the said judgment was confessed by the said Adam B. Wingerd, and was accepted and entered in the Court of Common Pleas, by the said Virginia C. Wingerd by collusion, with intent to delay, hinder or defraud the creditors of the said A. B. Wingerd of their just and lawful debts and actions. 8. Whether the said judgment was held, kept on foot, and used by the said Virginia C. Wingerd, in collusion with the said Adam B. Wingerd, with intent to hinder, delay or defraud the creditors of the said Adam B. Wingerd of their just and lawful debts and actions.
    At the trial it appeared that Mrs. Wingerd was the daughter of Joshua Mo’tter, deceased, who was a man of large estate, and that her husband at divers times had received from her father large sums of money, for which, at his decease, he held the following notes: One for $2300, dated June 25th 1869, another for $800, dated September 2d 1871, another for $750, dated January 13th 1873, another for $300, and still another for $215.
    On the 4th of May 1876, the administrator settled his first account. The distributive share coming to each child (including Mrs. Wingerd) was $1846.46. On the 21st September 1876, the administrator settled with her. She received her share from him by taking an assignment of the following notes against her husband, to wit: The $800 note and interest, $879.61 ; the note of $750 and interest, $826, making $1705.61, togéther with a note of her husband for $140.85.
    Thus her husband became indebted.to her on the 21st September 1876, in the sum of $1846.46, her distributive share of the balance on the first administration account. That sum, with interest to the 23d of December 1878, the date of the judgment bond, was $2095.78.
    A. B. Wingerd having given his not;e to his wife for $140.85, on the 21st September 1876, the date of the settlement, that lifted his note of $114.16, and the interest thereon $26.69, with which the administrator had charged himself in the account. Apart from the $2300 note, there was still a note for $445.54, given on the day of the settlement by Mr. Wingerd to the administrator. So that the $300 note, and the $215 note and interest thereon, held by Mr. Motter at the time of his- death, against Mr. Wingerd were liquidated on the 21st of September 1876, at the settlement, by Mr. Wingerd, giving his wife the note for $140.85, and the administrator the note for $445.54. This left then unaccounted for the $2300 note and the $445.54, still held by the administrator.
    When the administrator filed his second account, on the 20th of May 1877, each distributive share was $3089.66. Mrs. Wingerd’s share was arranged in the following manner: Her husband was in need of money, and on the 1st of November 1877, she procured the administrator to assign to him a note on Mount St. Mary’s College, amounting with the interest, at the time of the transfer, to $2600, the proceeds of which he received. A year afterwards, on the 1st of November 1878, the Motter family met for settlement at their home in Emmittsburg, and on that day the balanee of Mrs. Wingerd’s share on the second administration account was arranged with her by her acceptance of the $445.54 note and interest, $489.66, in payment thereof.
    This latter note was assigned to Mrs. Wingerd’s mother by a mistake, as claimed by her. She assumed the payment of it.
    The defendant contended that the note for $2300 was an advancement made by her father to her and not a debt of her husband, and that it was agreed, at the time of the advancement, between Mrs. Wingerd, her father and husband, which agreemént was subsequently reduced to writing, that Mr. Wingerd was to have the money as a loan and pay interest to the wife. By its terms the note did not bear interest. It was also shown that at the family meeting, on the 1st day of November 1878, Mrs. Wingerd agreed that the $2300 note should be treated and regarded as an advancement; that it should be taken off her share of the real estate when sold; that this arrangement was satisfactory to the administrator and to all the heirs.
    The plaintiffs contended that the $2300 was a debt due by Mr. Wingerd to Motter’s estate.
    These sums, with the interest on them, constituted the consideration of the judgment, and amounted in the aggregate to the sum of $10,000, less a small fraction of about’ $200. The judgment was given under the supervision of Mr. Stewart, in his office, upon a calculation made by him on the data furnished by Mr. Wingerd in the absence of Mrs. Wingerd, and for the sole purpose of protecting her.
    The execution was issued by Mr. Stewart thereon, without instructions from Mrs. Wingerd, pursuant to his duty as the counsel and trustee of Mrs. Wingerd, and for the purpose as such of protecting her interests.
    The plaintiff submitted, inter alia, the following point, which the court, Rowe, P. J., affirmed:
    3. If the jury believe from all the evidence that the $2300 given by Joshua Motter to A. B. Wingerd was a loan and not an advancement, neither A. B. Wingerd nor his wife could change this sum from a loan to an advancement. And if a loan, as against creditors, A. B. Wingerd could not agree to pay interest on this sum to his wife. And if the jury find that there is included in the $10,000 judgment interest on the $2300, from June 1869 to December 1868, such portion of the judgment is void as to creditors.
    The following were among the points of defendant, all of which the court refused:
    2. Even if the jury should believe that the receipt of the $2300 on the 25th of June 1869, by Mr. Wingerd from Mr. Motter, was a loan to him and not an advancement to his wife; still if the jury further believe that subsequent to the death of Mr. Motter, at a meeting in November 1878, for settlement and distribution on the final administration account, the widow and all the children of the deceased were present, and that they were all at the time of full age, and that it was then agreed by the widow and all the children that the note of $2300 should not be collected from Mr. Wingerdbut thstt it should be treated as an advancement to his wife, and deducted from her share of the real estate when sold, and that Mr. and Mrs. Wingerd both acquiesced in and assented to this arrangement, such a family arrangement would be good in law, and operate to convert the note into an advancement. (First assignment of error.)
    4. If the jury believe from the evidence that Mr. Wingerd actually received the $2300 from Mr. Motter on the 25th of June 1869, and used it for his own purposes, and it was understood at the time between Mr. Motter and .Mr. Wingerd and his wife, that it was to be an advancement to her, in anticipation of her share of her father’s estate, or if by the family arrangement referred to in the second point (if the jury believe such family arrangement was in fact made) the note was converted into an advancement, then Mr. Wingerd could lawfully embrace this sum in the judgment, together with interest thereon, from the 25th of June 1869, if the jury believe that he at that time agreed to pay his wife interest on the money. (Second assignment.)
    5. Even if the note of $2300 is to be treated as a debt of Mr. Wingerd, and not an advancement to his wife, yet if the jury believe from the evidence that at the meeting of the widow and children in November 1878, on the occasion of the settlement of the final distribution of the personal estate, Mrs. Wingerd assumed the payment of the $2300, and agreed that it should be taken off her share of the real estate, and the widow and all the children assented to this arrangement, and in consequence thereof the matter was permitted to rest in that way until the present time, and no steps were taken by the administrator of Mr. Motter to collect the note from Mr. Wingerd, such an agreement by Mrs. Wingerd, if her husband actually received the money, and the claim was an honest one, would create a moral obligation on her part to pay it, and the amount might be legally embraced in the judgment given to her by her husband. Her coverture is a personal privilege which she may waive; she is not bound to avail herself of it for the benefit of her husband’s creditors. (Third assignment.)
    8. There is no evidence at all to sustain the second and third issues made up in the pleadings. (Fifth assignment.)
    In the general charge, the court, inter alia, said :—
    “ If it was a debt at the death of Mr. Motter, I see nothing in the evidence to make it anything else, or to make Mrs. Wingerd entitled to it now, as creditor. Th,e agreement of the heirs that it should stand over and be deducted from the realty could not have that effect, nor would such arrangement hy the administrator. (Fourth assignment.)
    “ The other two issues raise the question of collusion and fraud. If Mrs. Wingerd took this judgment with intent to delay or defraud creditors ; or if she used it by issuing execution on it with the same intent, you ought to find the fact. But if this judgment is upon a full consideration, if Mr. Wingerd actually and honestly owed his wife the sum of $>10,000, then I see no evidence at all of fraud. If there are some elements of her claim not established, by the clear and satisfactory evidence which the laws demand that she shall produce, so that you find her judgment must be reduced in amount — as for instance, the $445 note or the $800.44, or both, but if you are, nevertheless, of opinion that she was actuated by no fraudulent purpose in taking it for the sum she did, then you would not find the fraud. But if she took it for a much larger sum than was just, for $2-300, or interest $1300, or both, and under such circumstances as that she must have so known — that itself, or in connection with the haste in execution would show the fraud, and in such case you ought to find that issue for plaintiff.”
    The jury found for the plaintiff on all the issues. And on the first issue they found specially that the said A. B. Wingerd was indebted to the said Virginia C. Wingerd in the sum of $7700, at the time of the giving of the said judgment.
    Judgment was entered on this verdict, when defendant took this writ and alleged that the court erred in the answers to the foregoing points of defendants and the portions of the charge noted above.

      Kennedy Stewart and J. McDowell Sharpe, for plaintiff in error.
    —The summary of the doctrine of the three points was : that at a family meeting for the settlement of the balance on the final administration account, Mr. and Mrs. Wingerd, and the widow, heirs and administrator of Mr. Motter agreed that the money mentioned in the note should be treated as and converted into an advancement to he taken from Mrs. Wingerd’s share of the real estate when it should be sold; or, in other words, that on that occasion Mrs. Wingerd assumed and took upon herself to pay the $2300 note out of her share of the real estate; that this was a legal transaction, and if it was in fact made and agreed upon, it gave a right to Mrs. Wingerd to have the $2300 embraced in the judgment.
    Against this it is urged that she was a feme covert and incapable of making such a contract. Doubtless it could not be enforced against her. But her coverture is a personal privilege, she would not be bound to plead it. She assumed the debt and elected to look to her husband for payment. Had she received the amount out of the proceeds of the sale of her husband’s personal property on her judgment and execution, she would be estopped from afterwards repudiating the arrangement. See Fryer v. Rishell, 3 Norris 521. But there is a moral obligation resting on her to fulfil her bargain. This, we submit, justified the taking of the $2300 note into the judgment: see Nesmith v. Drum, 8 W. & S. 9; Geist v. Geist, 2 Barr 441; Cunningham v. Garvin, 10 Id. 366; Hemphill v. McClimans, 12 Harris 367. A husband may prefer his wife to other creditors by giving her a judgment for an honest debt.
    June 23d 1880.
    There was no evidence of fraud to go to the jury: Battles v. Laudenslager, 3 Norris 446 ; Ryder v. Wombwell, L. R., 4 Exch. 39; Jewell v. Parr, 13 C. B. 916; Goodman v. Simonds, 20 Howard 360; Bunn, Raiguel & Co. v. Ahl, 5 Casey 390; Davenport v. Wright, 1 P. F. Smith 292; Gickes’s Adm’r v. Martin, 14 Wright 142; Davis v. Charles, 8 Barr 82; Zerbe v. Miller, 4 Harris 497; Ferris v. Irons, 2 Norris 182; Brown’s Appeal, 5 Id. 528.

      Stenger & McKnight and Brewer & Winger, for defendant in error. —
    To convict the court below of error, the court must start with the supposition that the jury threw out the item of $2300 and thus reduced their judgment from $10,000 to $7700, but this is simply conjecture. The several- claims when examined, show another method of calculation the jury may have adopted in reaching they conclusion they did. A family council could not change a note into an advancement. The note of $2300 was a debt of Mr. Wingerd to the estate.
    The question of fraud was properly left to the jury: Mellinger’s Adm’r v. Bausman’s Trustee, 9 Wright 529; Clark v. Douglas, 12 P. F. Smith 415 ; Gault v. Soffin & Wife, 8 Wright 307 ; Hamet v. Dundass, 4 Barr 182; Young v. Edwards, 22 P. F. Smith 266; Graybill v. Moyer, 9 Wright 533 ; Deakers v. Temple et al., 5 Wright 234; Stewart v. Fenner, 31 P. F. Smith 177; Bunn, Raiguel & Co. v. Ahl, supra; Gans v. Renshaw, 2 Barr 34.
    [Sharswood, C. J. — Where is the evidence of fraud or collusion ? The jury have found $7700 honestly due, and you must have evidence of actual fraud.]
    Mrs. Wingerd waived inquisition in favor of her husband, and testified that she intended to buy in the real estate — the sale not being on a regular sheriff sale day, but at another time in order to get the property at a lower price. This was evidence of collusion.
   Mr. Justice Paxson

delivered the opinion of the court,

This was a feigned issue to test the validity of a judgment of $10,000, confessed by Adam B. Wingerd in favor of John Stewart, Esq., as trustee for Virginia O. Wingerd, wife of said Adam B. Wingerd, and the defendant in the feigned issue. The jury found for the plaintiffs upon all the issues, with this special finding, however, as to the first: “ That the said A. B. Wingerd was indebted to the said Virginia C. Wingerd in the sum of $7700, at the time of the giving of the said judgment.’’

This indebtedness was made up in the main of notes which A. B. Wingerd had given his wife’s father for borrowed money, and which after his death had been assigned to Mrs. Wingerd by his administrator on account of her distributive share of her father’s estate. That the possession of these notes thus acquired constituted Mrs. Wingerd a creditor of her husband to the amount due thereon is not disputed. There was, however, a note for $2300 which was disputed — at least the right of Mrs. Wingerd to include it in the judgment was denied, and forms the subject of the first three assignments of error. There was some question whether this note was an advancement made by Mrs. Wingerd’s father, or a debt due by her husband to his estate. It was certainly one or the other, and in either event it reduced Mrs. Wingerd’s share of her father’s estate by precisely that amount. Although not formally assigned to her it is held against her share of the estate, and will ultimately be deducted therefrom. She would then be entitled to an assignment. In the meantime she is practically a surety to the estate for the amount. There is no good reason why she may not take indemnity from her husband. That she may not have a present cause of action against him is not to the point. She has a just claim which, if the husband chooses to recognise, no creditor has a right to gainsay. It has been held no longer ago than the present term, that it was not a fraud upon creditors for a husband to confess a judgment in favor of his wife for a claim old enough to be barred by the Statute of Limitations, if it were applicable. If he does not choose to set up the bar of the statute to defeat a just claim the creditor cannot do so for him. The defendant’s second point should have been affirmed without qualification. This ruling also sustains the second, third and fourth assignments.

The fifth assignment alleges that the court erred in refusing to affirm the defendant’s eighth point. Said point called upon the court to say to the jury that there was no evidence to sustain the question of fraud raised by the second and third issues. This point should have been affirmed. There was not sufficient evidence of fraud to submit to the jury. There was not even a scintilla. There was nothing beyond an effort on the part of Mrs. Wingerd’s trustee to collect the money due from her husband. .If it was lawful for him to confess the judgment, it was not unlawful for the trustee to collect it.

The. sixth and last assignment is also sustained. The jury were allowed to infer fraud where none existed.

Judgment reversed.