author: Agnew, C. J.

text:
    Isabella G. Page’s Estate. Girard Life Insurance, Annuity and Trust Company’s Appeal.
    1. A testator residing in New Jersey, gave all his estate to trustees for the sole use and benefit of his children, the trustees to invest the proceeds “ for the benefit of my said heirs,” the income during minority to be applied to their education, &e., and the surplus to accumulate for their benefit. The portions of Isabella, who was unmarried, and other daughters married and unmarried, to be held in trust for their sole use and not to be in the power or subject to the debts of their husbands. In case of the death of any of his children without issue, their shares “to be merged in the general fund and divided as above directed among my said heirs.” Isabella married after testator’s death and died residing in Pennsylvania. The New Jersey court decreed her share to the ancillary administrator there (her husband), who was also administrator in Pennsylvania. Held, that the Orphans’ Court in Pennsylvania had jurisdiction of her estate.
    2. Her estate was distributable between her husband and children under the Married Woman’s Act of April 11th 1848.
    3- The fact that the bequest was for her separate use did not change the succession under the Act of 1848 and give it to her husband as survivor.
    ■ 4. The Act of 1848 does not give the wife power — not conferred by the donor — over her estate settled to her separate use.
    6. The suspension of such power in her, does not destroy her entire and undivided ownership of her personal property under the Act of 1848.
    6. On her death her chattels and choses go into administration and not to her husband by survivorship.
    7. The testator, in case it should be deemed advisable at any time by his trustees to sell any part of his real estate, authorized them to sell; the proceeds to be held upon the same trusts as thereinbefore expressed and set forth. He left personal estate which could-meet the previous provisions of his will. Held, that under the whole will the direction to sell was not a conversion.
    8. A conversion may arise without express words, when the testator clearly intends to create a fund out of both real and personal estate and bequeath it in money aloné.

      9. Isabella having died before actual conversion of the real estate took place, her equitable estate descended to her children as realty.
    10. In distributing the testator’s estate in New Jersey it was there decreed that Isabella’s share should be paid to her husband as her “ administrator— absolutely.” Held, that this left the question of distribution of her estate to be settled by the forum of her domicil.
    11. Ins. Co. v. Foster, 11 Casey 134; Wright v. Brown, 8 Wright 224, not applicable to this case.
    January 8th. 1874.
    Before Aghstew, C. J., Sharswood and Merour, JJ.
    Appeal from the Orphans’ Court of Philadelphia: No. 18 to January Term 1872. In the distribution of the estate of Isabella Graham Page, deceased. The appeal was taken by the Girard Life Insurance, Annuity and Trust Company, guardian of the estates of Howard Wurts Page, Ethel Nelson Page, and William Byrd Page, minor children of the decedent, who left also to survive her her husband Samuel Davis Page, the appellee. At the time of her death the decedent’s domicil was in Pennsylvania.
    The decedent’s estate was derived under the will of her father, William Wurts, of Trenton, New Jersey, who died December 25th 1858. The will was dated January 17th 1856.
    By the first clause he gave to five trustees, whom he also made executors, “ their heirs, executors, administrators and assigns, and the survivors and survivor of them, all my estate, real, personal and mixed,” in trust “to and for the sole use, benefit and advantage of my beloved children” (naming them, amongst whom was Isabella Graham Wurts, afterwards Page, the decedent), “ and grandchildren.”
    The will proceeded : * * * “And it is my will, and I do hereby order and direct, that my said trustees shall judiciously invest the proceeds of my estate, after settlement and my just debts paid, in some safe way, as their judgment may direct, as a joint or common fund, for the benefit of my said heirs, or they may, at the discretion of the said trustees, be separately invested for the benefit of each respectively, in their several proportions; the income from which said investments accruing to my children, during the minority of each, to be applied to their education and reasonable expenses, and any surplus after such expenses paid, to be so invested as to accumulate for their benefit.
    “ It is my will, and I do hereby direct, that the sum of three thousand dollars be paid to each of my sons, viz., John Howard Wurts, William Wilberforce Wurts, and George Washington Wurts, as they respectively attain the age of twenty-one years, and the balance or remainder of their respective portions I do order and direct to be paid to them as they respectively attain the age of twenty-two years.
    “ The portions of my daughters, Anna Wurts, Mary Cousinery, Elizabeth Grandin Wurts, Martha Haskins Wurts, and Isabella Graham Wurts, is to be held by the said trustees above named. their heirs, executors, administrators and assigns, and the survivors or survivor of them, in trust for the sole use and benefit of my said daughters, and shall not be in the power of, or subject to the debts, control or management of their husbands: this restriction and condition is to apply to those of my daughters now married, and such of them as may hereafter become married, and the receipt of my said daughters, respectively, for their several and respective portions of annual income, or yearly profits, in their own name and their own hand, notwithstanding their present or future coverture, shall be sufficient discharge in law to the said trustees. * * *
    “In case of the decease of any of my said children without issue, the share or shares of such so dying is to be merged in the general fund, and to be divided, as above directed, among my said heirs, and subject to the aforesaid conditions and restrictions. * * *
    “I do further declare it to be my,will, and my executors are hereby empowered and permitted, at their discretion, to loan, on interest, from time to time, to my son-in-law, Charles Wurts, in cash, any part or portion of the amount of my estate that may be coming or payable to my daughter, Mrs. Anna Wurts, after my decease, with her approbation and consent, the object being to preserve such sum as part of the trust fund created by my will for the benefit of my said daughter and her heirs. * * *
    “ Fourthly. In case it shall be deemed advisable at any time by said trustees and executors to sell and dispose of any part of my real estate, I do hereby authorize and empower them, and the survivors or survivor of them, to make such sale, at their discretion, either at public or private sale, and thereupon to make, execute and deliver a good and sufficient deed or deeds and conveyances in the law, to any purchaser or purchasers for any part of the real estate so by them sold. The proceeds of such sales to be received by the said trustees, and invested and held by them, upon the same trusts and to and for the same uses and purposes as are hereinbefore expressed and set forth.”
    The testator left a very large personal estate and also real estate both in New Jersey and Pennsylvania.
    Isabella G. Wurts was married to Mr. Page in September 1861.
    All the real estate of the testator in New Jersey and part of that in Pennsylvania had been sold before Mrs. Page’s death. She became entitled also, not directly from the testator, to the sum of $9893.58.
    The shares of the testator’s daughters and granddaughters were held by the trustees in separate investments at Mrs. Page’s death in 1867. Administration of her estate was granted by the register of wills of Philadelphia to her husband Mr. Page; ancillary administration also was granted to him by the Probate Court of New Jersey.
    Proceedings in chancery in New Jersey between the executors and ■ trustees of tbe testator and Mr. Page and others were commenced February 12th 1868, to determine the rights of the respective parties under the will, &c. Ey his decree the chancellor declared, “that it was the intention of the testator that as well the real as personal estate devised and bequeathed by him to the complainants should be by them converted into money and invested equally for the use of “his children and grandchildren upon the conditions, &c., in his will; and that, therefore, the said real estate, devised in trust as aforesaid from the time of the decease of said testator, for the purpose of succession, must, in equity, be considered as converted into and treated as personal estate; * * * that upon the decease of testator’s said daughter, Isabella Gr. Page, leaving issue then living, her estate of and in said real and personal estate then in the hands of said complainants was not defeated, but became absolute and indefeasible, and passed to and vested in her personal representatives, and should be held by said complainants as personal estate, to be paid by them to her surviving husband, Samuel Davis Page, as the administrator, in the state of New Jersey, of the said Isabella G. Page, deceased, to be paid and distributed by him as such administrator according to law.”
    On the 31st of December 1870 the chancellor, in like manner, further ordered, adjudged and decreed, and “ doth hereby further order, adjudge and decree that the said complainants do forthwith pay to the said Samuel'Davis Page, administrator as aforesaid, all the aforesaid separate fund which was in their hands for the use of Isabella Gr. Page at the time of her decease, not included in the said John Howard Wurts’s portion thereof, and also all the arrears of income thereon, by assigning to him as administrator, as aforesaid, all the securities in which the said separate fund and arrears of income are invested, and by paying to him, as such administrator, any portion or portions thereof that may be uninvested. * * *
    “And the said chancellor hath, in like manner, ordered, &c., that all the estate, real and personal, which was of the said testator at the time of his decease, and now in the hands of said complainants, not appertaining to the aforesaid separate fund, and not herein above decreed to be assigned or paid as aforesaid, on account of said John Howard Wurts’s share of said estate, nor required to discharge the costs and other expenses of this cause, now is, and hereafter shall be held by said complainants, &c., in trust, as follows : that is to say: * * * as to one other one-seventh part thereof, in trust for Samuel David Page as administrator of Isabella G. Page, deceased, absolutely.” * * *
    Upon this decree the trustees paid to Mr. Page under his New Jersey letters of administration the sum of $66,658.44, including the $9893.58 above mentioned as belonging to Mrs. Page.
    Mr. Page settled his administration account in New Jersey, charging himself with the sum so received from the trustees, and being allowed a credit for the whole sum, having appropriated it to himself as administrator in Pennsylvania.
    He filed his administration account with the register in Philadelphia, on the 9th of February 1871, charging himself with the amount decreed to him in New Jersey and claiming no credit.
    On 17th of March 1871 the Orphans’ Court referred the account to J. D. Rodney, Esq., as auditor to audit and adjust and report distribution. The auditor reported in substance as above stated.
    He stated an account allowing commissions to the administrator, and allowing to the children of Mrs. Page three-fourths of the sum of $9893.58; and showing a balance of $54,421.28 for distribution: he found that of this balance $1000 were the proceeds of real estate in Pennsylvania sold by the trustees.
    Mr. Page claimed the whole sum of $54,421.28 in his own right.
    The minors claimed three-fourths of the sum of $53,421.28 and the whole of the $1000, subject to Mr. Page’s life-estate.
    The auditor decided that the Court of Chancery, a court of competent jurisdiction, having, on a question of distribution, decreed that Mrs. Page’s share belonged to her husband in virtue of his marital rights, the Orphans’ Court had no jurisdiction to decree distribution except as to the $9893.58.
    He also decided “that there was a conversion of the real estate in Pennsylvania, by the will of Mr. Wurts, and the $1000, the proceeds of such real estate, remains properly within the item cash, and should be comprehended in the distribution of such cash.”
    The auditor further decided that the estate to which Mrs. Page was entitled under her father’s will did not on her death pass under the Married Woman’s Act of April 11th 1848, but under the Intestate Act of April 8th 3833 (Pamph. ,L. 316, 1 Br. Purd. 806). He therefore awarded to Mrs. Page’s minor children $7049.18, three-fourths of the $9893.58, less commissions; and to Mr. Page $59,607.27, made up of one-fourth of the last-mentioned sum and the whole of the sum of $54,421.28, after deducting expenses.
    The guardian of the .minors filed exceptions to the report; they were overruled and the report confirmed.
    The guardian appealed to the Supreme Court and assigned the decree of confirmation for error.

      W. W. Wister, Jr., for appellant.
    To the forum of the decedent’s domicil belongs the distribution of the personal property: Story on Conflict of Laws, sect. 481; Ersk. Instit., B. 3, tit. 9; Vattel, B. 2, sect. 85; Wilkins v. Ellet, 9 Wallace 740; Holmes v. Remsen, 4 Johns. Ch. 460 ; In the Goods of Earl, Law Rep. 1 P. & D. 449. The opinion of the chancellor was, that the estate of Mrs. Page in the property before him was absolute, and that the same is payable to S. Davis Page as her administrator, to be administered according to the law of her domicil at the time of her death: Wurts v. Page, 4 C. E. Green 365; Stokely’s Estate, 7 Harris 476.
    In order to effect an equitable conversion, it is necessary that the testator should explicitly direct that a sale should be absolutely and positively made of his real estate: Henry v: McCloskey, 9 Watts 145; Bleight v. The Manufacturers’ Bank, 10 Barr 131. The addition of a discretion on the part of the donees of the power destroys the argument of an absolute intention on the part of the testator to convert in all events: Walter v. Maunde, 19 Yesey 424; Wright v. The Trustees of the M. E. Church, 1 Ploffman (N. Y.) 219:
    It is upon this absolute intention of the testator to treat his land as money or his money as land, in all events, that the whole doctrine of equitable conversion is based: Fletcher v. Ashburner, 1 Bro. C. C. 497; Doughty v. Bull, 2 P. Williams 320; Craig v. Leslie, 3 Wheat. 564.
    The limitations or expressions used by the testator must not only be éuch as are perfectly compatible with his estate as converted; they must positively and wholly rebut any and every other presumption. The provisions of the will must not only be such as may be carried out if the estate is converted; they must be incapable of being otherwise carried out at all: Cornick v. Pearce, 7 Hare 480; Henry v. McCloskey, 9 Watts 145; Burr v. Sim, 1 Whart. 252; Bleight v. Manufacturers’ Bank, 10 Barr 131; Nagle’s Appeal, 1 Harris 261; Chew v. Nicklin, 9 Wright 84; Leiper v. Thomson, 10 P. F. Smith 177.
    The first clause of the will devising the whole estate to trustees, for the use and benefit of his children, is sufficient to pass the fee, independently of the 9th section of the Act of 1833. The subsequent clause that the income only shall be paid to his daughters does not affect this as a devise of the income, or of the proceeds; is a devise of the estate itself: Carlyle v. Cannon, 3 Rawle 489 ; Allen v. Henderson, 13 Wright 333. The clause directing it to be held for her sole and separate use, free from the control of her husband, would not prevent its vesting as a legal estate, Mrs. Page, at the time of her father’s death, not being married, nor contemplating marriage: McBride v. Smyth, 4 P. F. Smith 245 ; Wells v. McCall, 14 Id. 207; Springer v. Arundel, Id. 219. “ Dying without issue ” means an indefinite failure of issue: Kay v. Scates, 1 Wright 31; and creates an estate tail in the realty, and an absolute estate in the personalty: Amelia Smith’s Appeal, 11 Harris 9; Potts’s Appeal, 6 Casey 168. The Act of 1848 repeals, so far as regards the property of married women, the Intestate Law of 1833, and provides how their estates shall thereafter be distributed in cases of intestacy.

      This is the sole scope and intent of the ninth section of the act, and any argument which denies its applicability to equitable estates in fee of married women, whether settled to their sole and separate use or not, must equally deny the application of all prior intestate acts to such estates.
    The Act of 1848 is not less comprehensive in its terms than the prior intestate Acts of 1833, 1794, or 1705, as far as regards the nature of the property embraced. There is no reference in either the Act of 1833 or 1848 to the distribution of equitable estates, and for the best of reasons, for it was only on the principle that “ cequitas sequitur legem," that estates in equity originally descended as at common law, and subsequently in accordance with the Distribution Acts: 2 Blacks. 330; Schuyler v. Hoyle, 5 Johns. Ch. C. 207; Faries’ Appeal, 11 Harris 29; Van Rensselaer v. Dunkin, 12 Id. 252; Dubs v. Dubs, 7 Casey 149.

      G. T. Bispham, for appellee.
    The possession , once in the husband, 'as administrator, his marital rights, which had attached immediately upon his wife’s death, would come into active beneficial operation : Williams on Executors 778; 2 Black. Com. 435. Not only are the extent and character of the estates created by the will to be determined by the law of the domicil of the testator, but the ascertainment of the persons who are to take is also to be governed by the same law : Harrison v. Nixon, 9 Pet. 483; Story’s Conflict of Laws, sec. 479 c.: Anstruther v. Chalmer, 2 Sim. R. 1; and Boyes v. Bedale, 1 Hem. & Mil. 805; Sill's Appeal, 1 Grant’s Cases 235, nom.; Van Rensselaer v. Dunkin, 12 Harris 252.
    As to the equitable conversion, he cited Grieveson v. Kirsopp, 2 Keen 657 ; Mower v. Orr, 7 Hare 475 ; Wurt v. Page, 4 C. E. Green 365; Bogert v. Hertell, 4 Hill 494, as showing that imperative words are not required nor absolute irreconcilability, but only suflBcient proof of intention: Evans’s Appeal, 13 P. F. Smith 183; Parkinson’s Appeal, 8 Casey 455. If the testator intended a money gift, there will be a conversion: Smith v. Olaxton, 4 Maddocks 484. The use of optional words will not prevent a conversion when the intention from the dispositions of the will is to convert : Smith v. Tasewell, 1 Randolph 313; Stagg v. Johnson, 1 Comstock 206; Rhinehart v. Harrison, Baldwin’s R. 184; Cowley v, Harstonage, 1 Dow 361; Cookson v. Reay, 5 Beav. 22; Johnson v. Arnold, 1 Vesey 169. Notes to Fletcher v. Ashburner, 1 Lead. Cases Eq. 788-801; The Insurance Co. v. Foster, 11 Casey 134; Wright v. Brown, 8 Id. 224, establish that there are in Pennsylvania two distinct classes of estates in which married women can have an interest: first, the legal separate estate created by the Act of 1848, and by virtue of that statute taking the place of the legal estate at common law; and secondly, the equitable separate estate, which was entirely outside of the provisions of the Act of 1848, for the simple and obvious reason that, not being within the mischief of the old law, it was not touched by the remedial statute: Guthrie’s Appeal, 1 Wright 9.
   The opinion of the court was delivered, January 19th 1874, by

Agnew, C. J.

Mrs. Page, the intestate, being domiciled in Philadelphia, the register of her domicil had jurisdiction over her estate. This would include the estate which came to her under the will of her father, William Wurts, of New Jersey, unless taken out of the course of administration by the limitations of his will. As the donor of the estate, he had power to limit it to others on her death, and thus to cause it to be disposed of as his own estate, and in that event it might be drawn into administration in New Jersey. But the property bequeathed to her was not to go over under the terms of the will, and the court in New Jersey decreed payment to the ancillary administrator of Mrs. Page, who has brought the fund into this state, to be administered under the principal letters issued here. The jurisdiction of the Orphans’ Court cannot be doubted.

This brings us to the question of devolution. It is claimed by Mrs. Page’s husband, who is also her administrator, under his alleged marital rights, while the appellants claim three-fourths of it for her children by right of succession under the laws of Pennsylvania. It is supposed on part of Mr. Page, that the estate being bequeathed to Mrs. Page for her sole arid separate use, it is therefore taken out of the ordinary laws of succession and returns to her husband as at common law by survivorship. This is a mistake. The Act'of 1848, securing to married women their property, destroyed the marital rights of her husband in her estate at common law, and therefore, when the suspension of Mrs. Page’s power over the estate, caused by the sole and separate use, ceased at her death, the husband had no marital rights of property to which he could return. The doctrine of Ins. Co. v. Foster, 11 Casey 134; and Wright v. Brown, 8 Wright 224, is misapplied. It is not doubted that the Act of 1848 does not unfetter the estate of a feme covert, settled to her sole and separate use, so as to confer upon her a power not given to her by the donor, to convey away her estate. On this point Lancaster v. Dolan, 1 Rawle 231, is still the law. Hence, where no power is given to sell or convey her estate, she is still restrained by the will of the donor of the estate. But this suspension of her power does not destroy her entire and undivided ownership) of all her personalty under the terms of the Act of 1848 : that act extends to all kinds of property, and left nothing to the husband. He is no longer the owner of her chattels or her choses, and on her death they go into administration, and not to him by survivorship. Hence the cases cited as to the suspension created by the sole and separate use, and the return of the husband to his marital rights, when the suspension has ceased, are not precedents, in this state, where the husband -has no marital right at common law to which he can return. ' The error in the argument is in supposing that the creation of an estate for the sole and separate use of the wife is an .act of favor to the husband. But this is an illogical inference. . The intent of the donor to take the estate out of the control of the husband,-is adverse to the husband. It would be a most unfriendly-interpretation of the Act of 1848, divesting the husband of all right of property by marriage, to say it did not mean. to divest his right, because the donor himself had refused to the husband any power to control her estate. The husband being separated from it, both at law and by the will of the testator,. Mrs. Page’s estaté can gp' only-by succession to her husband and .children under the laws governing her intestacy.

The question- of the conversion of the real estate • in Pennsylvania, devised- to Mr. Page, must depend on the will of Wm. Wurts, there being no actual conversion by the trustees under his will in her lifetime. It therefore descended as real estate, unless conversion was wrought by the will itself,

It has been decided in New Jersey that a conversion arises under the terms of .Wm. Wurts’s will. We dissent from this, with much unwillingness and some'hesitation. - We agree that a conversion may arise, without express terms, when it is clear that a 1 testator meant to create a fund raised out of'both real and personal estate, and to bequeath this fund in money alone. But it', seems to us the error in the argument' is. in assuming the only-fact from which conversion can fairly be inferred, to wit, an absolute intent to create a consolidated' fund out of both real and personal estate, to be distributed in money. As we read the- will, the first item is simply a.devise and bequest of all the testator’s real and personal, estate in trust for his children. The direction following the devise to invest the proceeds of his estate “ after settlement,- and-Ms'just debts are paid,” for the benefit of his children, applies only to the personalty, the fund for the payment of debts, and the proper subject of a settlement. If the word, “estate,” used in' creating that fund, means his entire estate, real as well as personal, we might conclude' the testator intended a conversion. It is not only-used in connection with terms restraining its meaning to person-' alty, but it is also interpreted by the language and' intention of the fourth item of the will. That item confers only a discretionary authority to sell the real estate when the trustees and executors deem it advisable, a power which might never be exercised. Then'the testator directs the proceeds of such sales to be received and invested and held by them upon the same trusts, and-,to and-for the same purposes as therein before expressed and set forth. Now if the conversion took place under the first item .of the will the proceeds.of the real estate ipso facto became a part of the fund to be distributed, and it was unnecessary .to provide for it a second time in the fourth item. The whole frame of the will, and especially the fourth item, would seem to us to indicaté no more than a discretionary power of sale, which would work conversion only when a sale should be made. Hence, on the death of the testator, the real estate passed to his children as real estate, by equitable title, and not as personalty. Mrs. Page having died before actual conversion under the discretionary power contained in the fourth item, -her equitable estate descended to her children as realty. When conversion took place the title to the realty was in them.

The decree of the Court .of Chancery at the. suit of the trustees in New Jersey did not decide any question of distribution, as to so much of the fund there as belonged to Mrs. Page. Its effect was to authorize the payment of the money to Mr. Page, the ancillary administrator,, leaving the question of distribution to be settled in the forum of Mrs. Page’s domicil.

The decree of the Orphans’ Court is therefore reversed, with costs to' be paid by the appellee, and it is ordered that a distribution of the balance in the hands of the administrator of Mrs. Isabella G. Page be made to her surviving husband and children in equal shares, accord- ' ing to law, and the record is ordered to be remitted to the Orphans’ Court to make distribution accordingly.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    Johnson and Freeman’s Appeal.
    1. The councils of Philadelphia, previously to the Act of March 22d 1865, had power to direct the grading, curbing and paving of sidewalks and to file liens against the adjacent lots for the cost.
    2. The object of the Act of 1865 was to compel the councils upon the application of residents on a street, to pave, &c.
    January 9th 1874.
    Before A&new, C. J,, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Philadelphia. In equity : No. 199, to January Term 1872.
    The proceedings in this case commenced to the June Term of 1870 of the .court below,-by'a bill brought'by John Harrar and others against the city of Philadelphia, the Commissioners of Highways of the city, and of the Twenty-seventh ward, and Samuel Cunningham, Samuel Johnson and Archibald Freeman, contractors, to restrain them from doing certain paving and grading on Darby avenue, in the Twenty-seventh ward, late a part of the Twenty-fourth ward. The question in the case was as to the power of the city councils to authorize, &c., the work.
    By the Act of April 16th 1838, the councils-^ere authorized, at the expense of the owners of adjacent property, “to regulate, grade, pave, &c., the footways or sidewalks.”
    The Act of 16th April 1840 authorized “ the commissioners and inhabitants of the district of Southwark, and also the commissioners and inhabitants of any of the other incorporated districts and townships within the county of Philadelphia, to file in the office of the prothonotary,” &c., “ all claims and demands due to said commissioners and inhabitants of any of the said incorporated districts and townships, for pitching and paving streets and alleys, for digging down, filling up, and for curbing, paving, and repairing any footway within the same,” &c.
    The Consolidation Act of February 2d 1854 provides that it may be prescribed by'ordinance that paving of streets, except at the intersections thereof, and of footways, &c., “shall be.done at the expense of the owners of the ground in front whereof such work shall be done, and liens may be filed by the city for the same as is now practised and allowed by law.”
    By Act of March 22d 1865, it was enacted:—
    . Sec. 1. That when a majority of the property owners, or the owners of a majority of the feet frontage, for a continuous distance of five hundred feet, or more, on any one or both sides of any street, road or lane used as a public highway, in the Twenty-second and Twenty-fourth wards, shall petition councils of said city for a paved footway along the same, they shall state in their petition the kind of pavement wanted by them; and councils shall, when such petition is received, direct the highway department of said city to notify the owners of property on said streets, or such parts thereof as may have been included in the petition, to have such footway paved in front of their respective premises, in the manner indicated in the petition, within thirty days after receiving said notice. ,
    Sec. 2. That should any of the property owners refuse or neglect to make said pavement for thirty days after notice has been given, the highway department shall proceed, without delay, to have it made, and charge the cost thereof to the property in front of which it is made ; and if said cost is not paid within thirty days after a bill for the same has been presented, a claim shall be filed in the proper court for the amount thereof, which claim shall be a lien against the property, and shall be collected in the same manner as other municipal claims are now by law collected. * * *
    Sec. 5. That should a majority of the owners of property upon any of the said streets upon which public lamps have been erected refuse to petition councils for a pavement, it will be competent for any two citizens living upon the said street, to petition the councils for the said pavement, setting forth the condition of the sidewalk, sworn to before a magistrate, and the councils shall order the commissioner of highways, as is provided in section first of this Act, to notify said owners to put down a pavement in conformity with this Act.
    On the 19th of April 1870 the councils passed this ordinance:—

      Whereas, Two citizens of the Twenty-seventh (late a part of the Twenty-fourth) ward, of the city of Philadelphia, living upon Darby avenue or Woodland street, upon which public lamps have been erected, having been duly qualified before a magistrate to the condition of the sidewalks upon said streets, and asking councils for a curbed and paved footpath, as required by the fifth section of an Act of Assembly, of the twenty-second day of March, A. D. 1865. Now
    Sec. 1. The Select and Common Councils of the city of Philadelphia do ordain, That the Chief Commissioner of Highways be and he is hereby directed to give to the property holders on Darby avenue or Woodland street thirty days’ notice, as is required by said Act of Assembly, to grade, curb and pave the sidewalks upon said street, as follows, viz.: on both sides thereof from the city line to Thirty-ninth street; and that in case they do not cause the same to be done within said thirty days, then he shall cause the same to be done, and a lien to be filed against said property, in accordance with the second section of said act.
    The bill set out, that the plaintiffs were owners of lots on Darby avenue having an aggregate frontage of 9000 feet; the avenue being opened to the width of sixty feet, and according to a plan of the city was to be opened to the width of eighty feet from Thirty-ninth street; that the grading and widening of the avenue would require great changes in its condition and surface; that there was but a small portion at the eastern end of the avenue closely built on, and that about three miles, the whole distance from Thirty-ninth street through land, were used for agricultural purposes; that until the widening and grading of the roadway be done, it would be useless to curb and pave the footway, as when the grading were done the curb and paving would have to be taken up, &c. The bill then set out the ordinance of 1870 and the Act of 1865, and that before any proceedings were had to widen and grade the avenue, the commissioner of highways notified the plaintiffs to grade, pave, and curb the footway opposite their respective lots, and on their failure to do so within thirty days it would be done by the city and liens for the cost filed against them; that afterwards they were notified to widen the avenue to eighty feet within three months; that before the widening or any grading had been done, the city contracted with Cunningham, Johnson and Freeman, defendants, to grade, curb and pave the footways on the avenue, intending to file liens for the cost against- the complainants’ property respectively.
    The plaintiffs averred that the city had no authority to have such paving, grading and curbing done at the expense of the owners of tbe lots, &c. The prayers were to restrain the city and the other defendants from doing the work, &c.
    The defendants demurred to the bill; the demurrer was overruled and answers were put in.
    The case was referred to Horatio Gates Jones, Esq., as examiner and master, who reported that the bill should be dismissed.
    Upon exceptions, tbe Court of Common Pleas set aside the report and made a decree restraining the defendants from grading, paving and curbing on that part of Darby avenue mentioned in the bill.
    Johnson and Freeman appealed, and assigned the decree for error.

      W. W. Wiltbank, for appellants.
    The city has power to do the work and file liens for it: Act of Incorporation of 1789, section 16; Act of April 16th 1840, Pamph. L. 413; Consolidation Act of' February 2d 1854, sections 6, 40, Pamph. L. 25, 43; Phila. and Trenton R. R. Co., 6 Whart. 44; Southwark R. R. Co. v. City, 11 Wright 314; Branson v. City, 11 Wright 329; Commonwealth v. Pass. R. W. Co., 2 P. F. Smith 517; Angell on Highways 383, 384; Commissioners v. Keith, 2 Barr 218; City v. Greble, 2 Wright 339; City v. Burgen, 14 Id. 539; Reily v. City, 10 P. F. Smith 467; Borough v. Shortz, 11 Id. 399; Act of February 21st 1862, Pamph. L. 44.

      J. B. Townsend, for appellees.
   The opinion of the court was delivered, January 19th 1874, by

Gordon, J.

This is an appeal from the decree of the Court of Common Pleas, enjoining the city of Philadelphia and others, her officers and employees, from grading, curbing and paving, &c., the sidewalks on Darby avenue or Woodland street, in the 27th, formerly part of ’24th ward, of said city, and from filing or placing on record any alleged lien or claim for any such grading, curbing or paving of said footwalks, on or against the several properties of the plaintiffs to this bill.

This avenue or street is an old highway known as the Darby road. It has been opened and occupied to the width of sixty feet, but is laid out upon the confirmed plan of the city as of the width of eighty feet. The grades for the same have been adopted and recorded, but we understand, except for the distance from 39th to 41st street, there has been no actual opening or grading of the cartway by the city authorities, but that it is occupied by the Delaware County Plank Road Company, and that all but a small portion of this street proposed to be paved, runs through a rural district principally occupied for agricultural purposes.

What is now proposed for our consideration is the authority of the city councils to make the ordinance complained of, dated April 19th 1870, and which reads as follows:—

. “ Whereas, Two citizens of the 27th (late a part of the 24th) ward of the city of Philadelphia, living upon Darby avenue or Woodland street, upon which public lamps have been erected, having been duly qualified before a magistrate to the condition of the sidewalks upon said streets, and asking councils for a curbed and paved footpath, as required by the fifth section of an Act of Assembly of the 22d day of March, a. d. 1865. Now

“ Sect. 1. The select and common councils of the city do ordain that the chief commissioner of highways be and is hereby directed to give to the property-holders on Darby avenue or Woodland street thirty days’ notice, as is required by the Act of Assembly, to grade, curb and pave the sidewalks upon said street, as follows, viz.: on both sides thereof from the city line to Thirty-ninth street, and in case they do not cause the same to be done within thirty days, then he shall cause the same to be done and a lien to be filed against the property in accordance with the second section of same act.”

Now the complainants to the bill, taking it for granted that the councils derived their whole power to grade, pave and curb in the Twenty-seventh ward, from the Act of 1865, complained of this ordinance, forasmuch as, firstly, there was no petition for the paving of such footwalks presented by a majority of the landowners ; Secondly, there was no refusal on part of such owners to petition for such paving, &c., and hence the application by the two citizens, referred to in the ordinance, was nugatory and conferred no power under which the councils could act.

Thirdly, that under this Act of 1865, the paving, contemplated under the petition of the landowners, was but of a temporary character, and to last only until the city had graded the cartway, when, by virtue of the fourth section, the power attached to the councils to order a permanent paving of the footwalks. And it would appear that this was the view entertained of the matter by the Court of Common Pleas. We cannot see the affair in this light. The error into which the court below fell appears to us to proceed from the mistaken idea already adverted to, that the power of the city councils to grade, curb and pave the footwalks, or to order the same to be done, originates in the Act of 1865, whereas, in fact, this power is conferred by the Act of February 1854, known as the Consolidation Act. That act provides: “ That it may be prescribed by ordinance that paving of streets, except at the intersections thereof, and of footways,” &c., “within the limits of the city, shall he done at the expense of the owners of the ground in front whereof such work shall be done,' and liens may be filed by said city for the same as now practised and allowed by law.” This is the nerve through which the consolidated city may and does act in these matters and from which it derives its power. This, however] is no new power conferred upon the city for the first time, as appears not only from the Act of 1854 in its reference to precedent well-known legal formula, but from previous acts passed as well for the various townships and incorporated districts of the county as for the city itself. Passing over the earlier Act of 2d April 1790, which might in itself be construed to be broad enough to enable the city authorities to pave the footwalks, and to raise the money to pay for the same by taxation, we reach, as far back as the 25th of March 1805, an act conferring the power upon the councils to compel the citizens to pave the footwalks. Again, by the Act of 16th April 1838, these same authorities are empowered, at the expense of the owners of the adjacent property, “to regulate, grade, pave and repave, curb and recurb, &c.,'the said footways or sidewalks.”. It also prescribes the method by which such expenses may be recovered from the property-owners.

So in like manner, the Act of 16th April 1840 provides that 'the commissioners and inhabitants of Southwark, and of any other of the incorporated districts and townships within the county of Philadelphia, may file liens for curbing, 'faring and repairing any footway within the same, and also very carefully provides for the collection' and enforcement of such liens.

It is therefore obvious that without the Act of 1865, the power of the city was ample to do what she proposes to do in the case in hand. .

In view, therefore, of this very full and complete pre-existingpower, it may be asked why was the Act of 1865 passed ? We ansAver, because in the outlying rural districts it might well be feared that the wants and conveniences of the'inhabitants thereof in the way. of street improvements, might be overlooked or neglected, and hence this act was intended as a spur upon the tardiness of the city authorities. The imperative character'of the act warrants this reading of it. When a majority of the property-holders petition for a paved footway, stating what kind of pavement they desire, “ councils shall, when such petition is received, direct the highway department of said city to notify the owners of property on said streets to have such footway paved in front of their premises,” &c. So by the fifth section, if a .majority of the property-holders neglect or refuse to move in the matter, any two citizens living upon said street may, by their petition and affidavit, set this power in motion.

Again, the intent of the reservation in the fourth section becomes obvious in this reading- of the act. The paving directed by the citizens is not to abridge the power of the city to order a repaving of the footwalks, when the grade of the cartway is finally settled and made under the city surveys. This is a wise reservation, for the primitive paving, produced by the petition of the landowners, may be of .a temporary character, or on grades that may be found • not to suit the grades of the cartways, and hence requiring radical alterations. This is our interpretation of this act, and whether we are therein correct or not, we certainly find nothing which abridges or curtails the power of the councils, as conferred by precedent acts, to grade, curb.and pave the footwalks in the Twenty-seventh ward. It matters not, ■ therefore, whether they were, moved t.o their proposed action by the petition of two citizens or by their own judgment; in either case, they were acting within the bounds of their own legitimate powers, and ought not to have been dis-. turbed in the exercise thereof.

And now, January 10th 1874, this cause came on for hearing on an appeal from-'the decree of the Court of Common Pleas for the city and county of Philadelphia, and was .argued by counsel, and, on consideration,’ it is ordered, adjudged' and decreed that the said decree of the said . Court of. Common Pleas be reversed and set aside; and. that the plaintiffs’ bill be dismissed at their costs.


text:
    Washington’s Estate.
    1. A testator allowed an annual- sum out of the income of his estate for the use of a minor child, and directed “ the balance of such income to be invested and to accumulate during the minority of, my said daughter, for the benefit of- my estate,” and that after she attained full age the income of his estate “ shall be. paid to my said daughter,-” &c.:. Held, that under the Act of April 18th 1853 the direction for accumulation during minority was void and' the accumulations went tp the daughter. .
    January 10th 1874.
    Before Asnew, C. J., Mercur and Gordon, JJ. .Sharswood, J., at Nisi Pfius.
    Appeal from the Orphans’- Coiirt of Philadelphia: No. 201, to January Term 1872. . ■
    The proceedings in this case arose undei; the will of Warner E. Washington, who died October 1st'1860, having made a will dated August 2d I860-, and leaving a,widow, Marie Antoinette Washington, and a minor daughter, .Annie Dorsey Washington. After making provision for the payment of his debts, and continuing his business, and also for his wife, &c., he directed his estate to be paid to “ The Pennsylvania . Company for Insurance on Lives and Granting Annuities,” in trust for the uses, &c., afterward stated in his will. ....
    He further directed as follows:— . ■

      Item Ninth. — Upon the death of my wife, the said company shall hold, my said moneys and estate, principal and interest, in " trust for such person or ’persons, and for such estate or estates, and under such limitations as my said wife shall by her last will and testament-direct, limit and appoint of and concerning the same.
    “ Item Tenth. — In the event of the death of my wife, my daughter being living, without having executed the foregoing power of appointment, I direct the said company, first, to pay to the guardians of my said daughter in' equal half-yearly payments during her minority, for her support and education, the sum of eight hundred dollars annually, and to pay her, my said daughter, annually, in half-yearly payments, after she becomes of full age, the sum of fifteen hundred dollars, for her sole and separate use, whether single or married. Second, to pay annually, during their respective lives, in half-yearly payments, the sum of'four hundred dollars to my mother E. S. Washington, to my sister Mary three hundred dollars, to my sisters Louisa and Rebecca each one hundred and fifty dollars, and to my sisters Catharine and Virginia each one hundred dollars. If during my daughter’s minority the revenues of my said invested- estate sñould exceed her annuity of eight hundred dollars, and the respective annuities of my mother and sisters, I direct the balance of such income to be invested and to accumulate during the minority of my said daughter for the benefit of my said estate, but after my said daughter shall have reached full age, all the excess of income of my estate beyond the said annuities to her and my mother and sisters shall be paid to my said daughter for her sole and separate estate, in addition to the annuity of fifteen hundred dollars she would then be entitled to receive. * * *

      “ Item. Twelfth. — Upon the respective deaths of my mother and sisters, the annuities bequeathed to them hereby shall cease and determine, and be added to the income of my daughter Annie.
    “ Item Thirteenth. — Upon the death of my said daughter Annie, my wife having previously died intestate, it is my will that my said estate, subject to such annuities as may be then outstanding, shall be held by the said company for the use and benefit of such persons, and for such estates as my said daughter shall by her last will direct, limit and appoint. And in default of such will and testament, that the said company shall hold my said estate for the absolute use and benefit of any child or children of my said- daughter, or the child or children of any child of my said daughter, in equal’proportions; the child or children of any child of my said daughter to take the proportion that his, her, or their ancestor would have been entitled to, if liVing at the death of my said daughter.
    “ Item Fourteenth. — If it should so happen that my said daughter should die without executing the power of appointment herein given to her, and without leaving any child or children, or the child or children of any deceased child of her my said daughter, then my will is, that the said company shall hold my said estate for the use, benefit and behoof absolutely of such person or persons as would be my representatives under the intestate laws of Pennsylvania, if I had then died intestate arid without issue.” * * *

    Mrs. Washington, the widow, died on the 23d of May 1862, having made a will which she declared to be an execution of her power of appointment under the decedent’s will, but which was held not to be a good execution of the power.
    On the 23d of September 1870, Louisa Dorsey, the testamentary guardian of Annie D. Washington the minor, petitioned the Orphans’ Court of Philadelphia, setting out there were large accumulations of income from the trust estate beyond the amount directed to be paid for the maintenance of the minor; that the petitioner was advised that upon her arrival at age the minor, under the Act of Assembly of April 18th 1873, would be entitled to receive the whole income of the trust estate, and' praying the court to decree the payment of an increased allowance for the use of the minor.
    The company filed an answer, declaring that they were advised that the time limited for the accumulation of the income of the trust property would not expire for more than ten years; that the minor was not entitled to the additional allowance under the provisions of the Act of 1853, and that the accumulations of income were not for the benefit of the minor, but for the remaindermen under the will of Mrs. Washington.
    The Act of 18th April 1853, sec. 9, is as follows:—
    “ No person or persons shall, after the passing of this act, by any deed, will or otherwise, settle or dispose of any real or personal property, so and in such manner that the rents, issues, interests or profits thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor, settlors or testator, and the term of twenty-one years from the death of any such grantor, settlor or -testatorthat is to say, only after such decease during the minority or respective minorities, with allowance for the period of gestation of any person or persons, who, under the uses or trusts of the deed, will, or other assurance directing such accumulation, would, for the time being, if of full age, be entitled unto the rents, issues, interests and profits so directed to accumulate; and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void in so far as it shall-exceed the limits of this act, and the rents, issues, interests and profits so directed to be accumulated contrary to the provisions of .this act shall go to and be received by such person or persons as would have been entitled thereto, if such accumulation had not been directed. Provided, That any donation, bequest, or devise for any literary, scientific, charitable or religious purpose, shall not come within the prohibition of this section, which shall take effect and be in force as well in respect to wills heretofore made by persons yet living and of competent mind, as in respect to wills hereafter to be made; And provided, That notwithstanding any direction to accumulate rents, issues, interest and profits, for the benefit of any minor or minors, it shall be lawful for the proper court as aforesaid, on the application of the guardian, where there shall be no other means for maintenance or education, to decree an adequate allowance for such purpose, but in such manner as to make an equal distribution among those having equal lights or expectancies, whether at the time being minors or of lawful age.”
    The matter was referred to John M. Collins, Esq., as examiner and master, who reported that the direction in the will for accumulation of the income was void, and that all the accumulations during her minority belonged to the minor. He also recommended, for reasons which he gave, the increased allowance prayed for.
    After exceptions to the master’s report, it was confirmed by the Orphans’ Court, Paxson, J.
    The Trust Company appealed to the Supreme Court, and in ten specifications assigned the decree for error.

      J. G. Johnson, for appellants.

      J. 8tarr, for appellee.
   The opinion of the court was delivered, February 2d 1874, by

Gordon, J.

The one question presented by this case is, to whom belongs the accumulations that have accrued over and above the amount which the will of Warner F. Washington directs to be paid for the maintenance of the minor ? By the provisions of the will itself they form part and parcel of the estate, of which the minor is to have the entire interest during life from and after her arrival at the age of twrenty-one. Then at her death the estate goes over to her appointees or children, &c. Now if the will he effective in this disposition of these accumulations, it follows that the answer of the trustee appellant is correct; it has not in its hand any estate from which her income can be increased, for it is conceded that the body of the estate cannot be trenched upon for any such purpose.

The appellee, however, insists that these accumulations, by force of the Act of 1858, vest in the minor, the enjoyment thereof only being suspended until her majority.

This brings us directly to the consideration of the aforesaid Act of April 18th 1853. It provides that no person or persons shall, after the passage thereof, by any deed, will or otherwise, settle or dispose of any real or personal property, so and in such manner that the rents, issues and profits thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settlor or settlors, or testator, and the term of twenty-one years from the death of any such grantor or testator; “that is to say, only after such decease, during the minority or respective minorities, with allowance for the period of the gestation of any person or persons who under the uses and trusts of the deed, will or other assurance directing such accumulation, would for the time being, if of full age, be entitled unto the rents, issues, interests and profits so directed to accumulate.” All other accumulations are in express terms rendered void, except those mentioned in the first proviso. It does seem to us that the true interpretation of this act is not hard to reach. In the first place, it allows accumulations only in favor of one class of persons, who are to be possessed of two qualifications: (1) They must be minors. (2) They must be such persons who, if not minors when the deed or will goes into effect, will be entitled to take the rents and profits from which the accumulations are to arise. Any attempt to direct such accumulations into any other channel renders the deed or will void pro tanto, and the rents or profits so appropriated pass to the person or persons who would have been entitled thereto, if such accumulation had not been directed.

If now these accumulations go not to the minor, and it be conceded that such minor must, in order to satisfy the terms of the statute, be a beneficiary, it follows that the benefit may be so small as virtually to amount to nothing. If, for example, in the present instance, the amount of eight hundred dollars per annum only belongs to Annie D. Washington', the minor, and we suppose the annual accumulation to amount to eight hundred dollars more, then certainly her allowance might have been four hundred and the accumulation twelve hundred dollars per year. Thus we may by the same supposition reduce her beneficial interest to an annuity of ten dollars or of ten cents. This, however, would be a mere evasion of the terms of the statute, which is not to be tolerated.

In order to avoid a perversion of the statute, such as above stated, the appellant is constrained to construe the act in such a manner as to permit the accumulation during the period of minority of any minor selected for that purpose, whether it be the beneficiary or some one else.

In other words, this is the period allowed in which the estate may be permitted to accumulate, and when the period of majority arrives, this aggregated estate may be distributed according to the directions of the deed or will creating it, without any regard whatever to the person during whose minority it was accumulated.

But, under this reading of the act, we must concede that cases may arise in which the person, during whose minority the accumulations accrue, may not be the one who, if of full age, would be entitled to the rents, issues and profits so directed to accumulate, and hence we again come in conflict with the statute.

The error of the appellant arises from an attempt to incorporate the third clause of the British act into our Pennsylvania statute— a clause which the framers of our act were careful to exclude. A comparison of the two statutes will render the meaning of that of Pennsylvania very obvious, if indeed it were ever regarded as at all obscure.

In the English act there are four distinct cases or periods in which or during which accumulations were allowed. (1) During the life of the grantor or settlor; (2) Twenty-one years from the death of the grantor, settlor or testator; (3) During the minority or respective minorities of any person or persons who shall‘be living, or en ventre sa mere at the time of the death of the said grantor, &c.; and (4) during the minority or respective minorities only of any person or persons who, under the uses and trusts of the deed, surrender, will or other assurance directing such accumulations, would for the time being, if of full age, be entitled unto the rents, issues, profits, &c., directed to be accumulated.

Now, whatever of doubt may have arisen from the terms of this act, it was certainly not found in the fourth clause.

Jarman says (1 Jar. on Wills 268 and 269), in commenting upon the ease of Halsey v. Bannister, 4 Madd. 275: “This decision makes the clause of the act which allows accumulations during the minority of any person who, if of age, would be entitled to the income, amount only to a mere saving or reservation of the rule of law, which so disposes of the income of minors, or rather of their surplus income, after providing for their maintenance.” He says further, in the same connection, when speaking of the effect this doctrine may have upon trusts ordinarily introduced into provisions for maintenance during the minority of persons unborn at the testator’s decease, which direct the unapplied surplus income to be added from time to time to the principal: “ Such trusts, however, are distinguishable from the bequest in Halsey v. Bannister in this, that they extend only to the unapplied surplus,, and not to the entire income, and therefore approach more closely to the rule of law which accumulates the incomes of minors after providing for their maintenance; though they differ from that rule in regard to the destination of the accumulated fund, which the law gives to the minor himself, but which the express trust attaches to the principal fund.”

Examine now our Act of 1853, and it will be seen that it is almost a literal transcript of the British statute (39 and 40 Geo. III. c. 98), omitting the second and third clauses thereof. With this light, therefore, thrown upon the subject under consideration, and in view of these very significant omissions, it becomes to our minds certain that, with the exceptions stated in the first proviso, the legislature intended that, there should be no accumulations of the estates of decedents, except in favor of those minors who should be beneficiaries under the deed or will by which the trust should be raised.

But we again revert to the clause of the statute which directs that these accumulations’ shall run only during the minority of those who, “if for the time being were of full age, would be entitled to the rents, issues and profits so directed to accumulate.” Now, it is a singular interpretation of the act, which, whilst it must admit of the starting of the accumulations with the minority of one who, if of full age, would be entitled to the rents, issues and profits directed to be accumulated, nevertheless insists that such person may not "be so entitled when such rents, &c., have been accumulated.

It is not conceivable that the framers of this statute intended a construction so contradictory.

We must, therefore, conclude that that part of the will of Warner F. Washington, which directs the accumulations to be incorporated into and form part of the body of his estate, falls, and that such accumulations revert to and form part of the estate of Annie D., the only child of the said Warner F. Washington, who is. the one thereunto entitled. The first exception raised to the ruling of the court below having been abandoned by the appellant’s counsel, and the others having been considered in the preceding opinion, it only remains for us to say that we find no fault with the allowance made for the maintenance of the minor by the court below.

Appeal dismissed at the costs of the appellant.


author: Mercur, J.

text:
    Hagey versus Hill.
    1. The holder of a note agreed in writing with the drawers upon a consideration, to give them time, with the proviso, “ that no delay of demand shall interfere with any claim I may have upon the endorsers of the said note.” Meld, that endorsers were not discharged.
    2. If time be given or any act be done by the holder which^prejudices the right of the endorser to his action against the drawer or subrogation to the rights of the holder, the endorser will be discharged.
    3. A discharge of the debtor by the creditor will not discharge the surety, if there be an agreement between the creditor and debtor that the surety shall not be discharged.
    4. The reservation must appear on the agreement; it cannot be shown by parol evidence.
    5. The endorser not being a party to the agreement, he could pay the note and sue the drawer.
    6. The extension of time to the drawer so that the rights of the endorser are preserved will not discharge him.
    7. Manufacturers’ Bank w. Bank of Pennsylvania, 7 W. & S. 335, distinguished.

      January 12th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 216, to January Term 1872.
    This was an action of assumpsit, brought, November 26th 1870, by George W. Hill against John Hagey as endorser of the following note:
    “ $10,000. Philadelphia, November 4th 1867.
    “ Eight months after date we promise to pay to order of John Hagey, Ten Thousand Dollars, without defalcation, for value re-received. E. Matlack & Son.”
    (Endorsed) “John Hagey.”
    On the trial, October 26th 1871, before Hare, P. J., the plaintiff gave the note in evidence and rested.
    The defendant then gave in evidence this receipt:—
    “Received, July 30th 1868, of E. Matlack & Son,.a policy of insurance in my favor, dated this day, issued by the American Life Insurance Company, on the life of Ellwood Matlack, for the sum of ten thousand dollars. In consideration of which I hereby agree .never to prosecute or demand payment of a certain promissory note drawn, by E. Matlack & Son, endorsed by John Hagey, and also guaranteed by J. E. Lewars, due and protested July 7th 1868,- for the sum of ten thousand dollars ; provided, however, that the premium on the said policy o'f insurance is promptly paid by the said Matlack, or others. And provided further, that the interest on said sum of ten thousand dollars is promptly paid to me, or my order, whenever the same becomes due. The first year’s interest to be paid before the first day of May 1869, and the second year on or before July 7th 1870, and annually thereafter. Provided further, that no delay of demand shall interfere with any claim I may have upon the endorsers of said note. This agreement void if not complied with as above.
    “ George W. Hill, [seal.]”
    E. Matlack, one of the drawers of the note; testified that he had paid one year’s interest on the note, and the premium for one year on the policy of insurance.
    . There was evidence also that the cashier of a bank where the note was whilst plaintiff was absent in Europe, took, with the consent of defendant, a deed from Matlack for some land, and agreed to release all claim against the drawer’s stock of goods, &c., and that the plaintiff refused to ratify the arrangement, and it was rescinded without the consent of the defendant.
    The defendant requested the court to charge the jury
    1. That as the payment of the premium on the policy of insurance, by the makers of the note, disabled the holder of the note from suing thereon for one year, the endorser was discharged, unless the jury believe the endorser consented to the same.
    2. That unless the endorser was informed of the delivery of the policy to the plaintiff, it was his (the plaintiff’s) duty to inform the defendant of any default made in the payment of the premium, and his failure so to do discharged the defendant.
    3. That if the jury believe that the holder of the note released the security held by him, by reason of the conveyance' of April 15th 1868, without the consent of the endorser, then the defendant was discharged.
    The court refused the request and instructed the jury to find for the plaintiff.
    The verdict was for the plaintiff for $11,350.
    The defendant took a writ and assigned for error the refusal of his points and the instruction of the court.

      D. W. Sellers, for plaintiff in error,
    cited King v. Baldwin, Pain v. Fackard, 2 Am. Leading Cases 315 et seq.; Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335.

      K. T. King, for defendant in error.
    The paper of July 30th 1868, expressly saves and reserves the rights of the holder against the endorser, and therefore does not discharge him: Story on Prom. Notes 416, and cases cited in note; Byles on Bills 197 ; Ex parte Carstairs, 1 Buck B. C. 560; Ex parte Glendenning, Id. 517; Richard Burke’s Case, cited in English v. Darby, 2 Bos. & P. 61; Ex parte Gifford, 6 Vesey 805; Boultbee v. Stubbs, 18 Id. 20; Smith v. Winter, 4 M. & W. 454; Kearsley v. Cole, 16 M. & W. 127.
   The opinion of the court was delivered, February 19th 1874, by

Mercur, J.

This suit was against the endorser of a promissory note. The first assignment of error raises the question as to whether he was discharged by reason of an agreement between the holder and the maker, after the note became due, extending the time of payment. It is a well-recognised rule that an extension of time by a valid agreement between the creditor and the principal, will, as a general rule, discharge the endorser. The reasons therefor are these: The liability of the endorser to the holder is secondary and contingent. On his paying the note, he has a right of action against the principal, or of subrogation to the rights of the creditor. Hence, if time has been given, or an act has been done by the creditor which prejudices these equities in the endorser, he will be discharged.

It has, however, been repeatedly held in England and in this country, that a discharge by the creditor of the principal debtor will not discharge the surety, if there be an agreement between the creditor and the principal that the surety shall not be thereby discharged: Byles on Bills 316; Ex parte Glendenning, 1 Buck B. C. 517; Ex parte Carstairs, Id. 560; Ex parte Gifford, 6 Vesey, Jr., 805; Boultbee v. Stubbs, 18 Vesey, Jr., 20; Nichols et al. v. Norris, 3 Barn. & Ad. 41 (23 E. C. L. R.); Kearsley v. Cole, 16 Mees. & Wels. 127; Boaler et al. v. Mayor et al., 19 Com. B. N. S. 70 (115 E. C. L. R.). It was said, however, by Lord Chancellor Eldon, in Ex parte Glendenning, vide supra, “Ever since Mr. Richard Buck’s case, the law has been clearly settled, and is now perfectly understood, that unless the creditor reserves his remedies, he discharges the surety by compounding with the principal, and 'the reservation must be upon the face of the instrument by which the parties make the compromise; for evidence cannot be admitted to vary or explain the effect of the instrument.” - It was held'in Wyke v. Rogers, 1 De G., Mac. & G. 408, that parol evidence might be given to show that an agreement, which would by itself operate to release the surety, was not to have that effect.

The ground upon which an agreement to give time to the maker, made by the holder without the consent of the endorsers, upon a valid consideration, is held .to be a discharge of the endorsers, is solely this, that the holder thereby impliedly stipulates not to pursue the endorsers, or to seek satisfaction from them in the intermediate period. It can never apply to any case where a contrary stipulation exists between the parties. Hence, if the agreement for delay expressly saves and reserves the rights of the holder in the intermediate time against the endorsers, it w'ill not discharge the latter. In such case the very ground of the objection is removed, for their rights are not postponed against the maker, if they should take up the note: Story on Prom. Notes, sect. 416. The same rule is recognised in Viele v. Hoag, 24 Vt. 46 ; Morse v. Huntington, 40 Id. 488; Clagett et al. v. Salmon, 5 Gill & Johns. 315. The whole course of Chancellor Walw'orth’s reasoning in Bangs v. Strong, 10 Paige’s Chan. Rep. 11, leads to the same result.

The endorser was not a party to the contract between the holder and the maker. He was not thereby precluded from paying the note at any moment. Having paid it he would have had an immediate right of action against the maker. None of his rights were in the slightest degree impaired.

Neither the search of counsel nor our own examination has resulted in finding that the precise point has ever been decided by this court. When not in conflict with our own precedents, it is desirable that we conform to what seems to be the general rule of the commercial world. The ease of Manufacturers’ Bank v. Bank of Pennsylvania, 7 W. & S. 335, has been cited in opposition to this rule. Such is not the case. The point there decided is merely that an endorser may be discharged by the holder giving time to the maker, after judgment has been obtained against him; that .the creditor must no more impair the rights of the endorser after he has obtained judgment against the maker than before.

The written instrument executed by the plaintiff below, by which he agreed with the maker to extend the time of payment, expressly declares, “ Provided further, That no delay of demand shall interfere with any claim I may have upon the endorsers of said note.” The case is thus clearly brought within the rule, and we hold that the extension of time to the maker in a manner which preserved all the rights of the endorser, did not discharge the latter.

The second and third assignments have no merit. The acceptance of the conveyance of land, in the absence of the plaintiff below, by one acting without authority, and so known by the defendant below, and repudiated by the holder of the note, cannot prejudice his rights against the endorser.

The learned judge was correct in instructing the jury to find in favor of the plaintiff below.

Judgment aflirmed.


text:
    Singerly versus Fox.
    1. A receiver has no legal title to the assets of the estate and cannot maintain trover for them without leave of the court, except after they have actually passed into his possession.
    2. By leave of the court a receiver of a firm which was lessee, sold goods on the premises to the landlord; in an action for the price by the receiver the landlord could not set off rent due him.
    3. The receiver could maintain the suit in his own name without the order of the court.
    4. The landlord had no right to have his rent from the proceeds of sale, as in case of an execution under the Act of June 13th 1836, sects. 83, 84.
    5. Yeager v. Wallace, 8 Wright 294, recognised.
    January 12th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 219, of January Term 1874.
    This was an action of assumpsit, commenced March 8th 1870, by Mahlon Eox against Joseph Singerly.
    The cause of action arose under the following circumstances: The firm of Grim & Brother being engaged in brickmaking in Philadelphia, and being the lessee of the brick-yard-from the defendant; Peter Grim, one of the partners, filed a bill in equity against his copartners, and the plaintiff was appointed receiver. Under an order of court, the plaintiff as receiver sold the personal property of the firm at public sale on the premises. The defendant was the purchaser of goods to the amount of $579.80. On demand of payment, he declined to pay, claiming to apply the purchase-money in discharge of rent, which he alleged was due to him for the yard.
    The receiver then brought this action to recover the price of the goods.
    On the trial, October 3d 1871, before Stroud, J., after the above stated facts were given in evidence by the plaintiff, the defendant offered to prove, “ that at the time of this sale an amount of rent was due by Messrs. Grim, parties to the equity suit, to defendant, for the year then past, greater than the goods sold for.”
    The court rejected the offer and sealed a bill of exceptions.
    The court reserved the following questions:—
    “ 1. Whether the plaintiff can sue without an order of the court which appointed him ?
    “ 2. Whether the plaintiff can maintain this suit in his own name?”
    And charged the jury:—
    “ The questions here are questions of law. You will find for the plaintiff for the entire amount of the property bought by the defendant.”
    The jury found for the plaintiff for $639.18, and judgment was afterwards entered on the verdict for the plaintiff on the reserved points.
    The defendant took a writ of error, and assigned for error the rejection of his offer of evidence and entering judgment on the reserved points.

      J. E. G-endell and E. S. Miller, for plaintiff in error.
    A receiver is not at liberty to bring or to defend actions; or to let the estate; or to lay out money, unless by special leave of the court: 2 Story’s Eq. Jur., § 833, a. No title is vested in him. The court itself has the care of property in dispute: Edwards on Receivers 4; Kerr on Receivers 132. An agent selling the goods of his principal in his name and as his agent, cannot ordinarily sue on the contract as for goods sold and delivered: Story on Agency, § 391; Yeager v. Wallace, 8 Wright 294. In a proper case there maybe a set-off against a receiver: Waterman on Set-off 192, 456; Receivers v. The Patterson Gas Light Co., 3 Zabriskie 283. The Act of 16th June 1836, §§ 83-4, Pamph. L. 777, 1 Br. Purd. 438-9, pi. 47-8, is applicable to this case. The goods being in the custody of the law, the landlord was as in the case of an exe* cution and could not distrain. The receiver being a mere custodian of the property, and the sale having been ordered by the court, not only the possession, but the sale itself is that of the court: 2 Story’s Eq. Jur., § 829; Edwards on Receivers 6. In the Estate of Appold, a bankrupt, 6 Phila. R. 469, the District Court of the United States for the Eastern District of Pennsylvania ordered rent to be paid out of the proceeds of the sale of the goods of the estate on the premises : In re Wynne, 4 Bankr. R. 5, cited in 7 Phila. R. 611.

      S. N. Rich, for defendant in error.
    Where the cause of action arises after the appointment of the receiver, he may sue in his own name: Pitt v. Snowdon, 8 Atkins 750; Story on Agency, sect. 391. The action should he in the name of him who has the legal interest: 1 Chitty’s Pl. 2-6; Wilmarth v. Mountford, 8 S. & R. 124 ; Kline v. Guthart, 2 Penna. R. 490; Receivers v. Paterson Gas Light Co., 3 Zabriskie 283. Debts to be set off must be in the same right: Stuart v. Commonwealth, 8 Watts 75 ; Darroch v. Hays, 2 Yeates 208; Wolfersberger v. Bucher, 10 S. & R. 10; Coffman v. Hampton, 2 W. & S. 377. Rent is a lien only after distress ; a distress cannot be made on goods in the hands of a receiver without leave of the court: Nock v. Gibson, 7 Paige 513.
   The opinion of the court was delivered, January 19th 1874, by

Gordon, J.

It is no doubt law that a receiver has no legal title in the assets which he is appointed to collect, and that without authority from the court he cannot maintain trover where they have been wrongfully converted previously to his possession: Yeager v. Wallace, 8 Wright 294. But where the goods have actually come into his possession it can hardly be contended that he could not maintain this action against one who wrongfully invaded such possession and converted the goods committed to his caro. Were such not the case he would not rise to the dignity and power of the most ordinary bailee. He would be the merest automaton that ever sprang from a legal workshop. In the case in hand, the goods were in the possession of the receiver and were sold by him by virtue of the power conferred upon him by the court for that purpose. The contract of sale was with him ; his receipt for the money to the purchaser would have been good to discharge him from the price of the goods; and for them or their price he is responsible. We are of opinion, therefore, that the receiver might maintain this suit in his own name, and that so far the ruling of the court below is right.

With reference to the set-off, which Singerly desired to set up against the price of the goods which he bought at the receiver’s sale, we are equally clear. The court took charge of the partnership of Grim & Bros, oh bill filed by one of the partners. In cases of this kind the firm assets pass into the custody of the court to await settlement between the partners. They must pass into the hands of a master for distribution. Primarily the debts of the firm are to he paid from its assets. If the firm is -solvent then those •debts will be fully paid; if not, then pro rata. Now, if each creditor be allowed to purchase goods at the receiver’s sale, and pay for them by a set-off, we ean readily see how, at least this part of the proceedings of a court of equity might degenerate from a regular and orderly process to a mere scramble for the debtor’s goods. We can further see, that if the partnership prove insolvent, one creditor may get his whole claim, and another nothing. It is obvious, therefore, that the rule claimed by the defendant below would be pregnant with disorder, and would introduce uncertainty and irregularity, where the contrary is of supereminent importance. We cannot, therefore, consent to sanction such a rule.

We may say, in conclusion, that it is a mistake to suppose that the defendant had a lien upon the goods by virtue of his lease. The Act of Assembly requires the sheriff to pay out of the proceeds of his levy and sale of the tenants’ goods to the landlord a sum not exceeding one year’s rent,'but this is by virtue of the directions of the act in that special case, and not because of any lien. This act is no doubt based upon the idea that it would be inequitable to take from the landlord that which he regarded as his security for his rent, and which he might at any time seize by virtue of his warrant. But in this case there is no such equitable consideration in Singerly’s favor, inasmuch as he stands upon the same footing as other creditors of the firm and will share the proceeds with them.

Judgment affirmed.


text:
    Trough’s Estate. Taylor & Co.’s Appeal.
    1. Trough effected a life-insurance, being solvent; — in consideration of $1 and love and affection for his children he executed under seal an assignment of the policy to Hicks in trust for them ; put the policy and assignment into anenvelope, addressed “John W. Hicks, Plumber, 2d St., &c. — Please send this to him at my death, H. Trough,” and placed the envelope in a safe of his own firm. He paid the premiums till his death seven years after the assignment; — but never communicated the transaction to Hicks, who knew nothing of it till after his death. Held, that the assignment was invalid for want of delivery and the proceeds belonged to Trough’s estate.
    2. A gift of a chose in action or chattel cannot be made by words in futuro or words in prmsenti unaccompanied by delivery.
    3. Where the donor retains the control of a voluntary bond or chose in action given or assigned; he may cancel or destroy i't.
    4. If the determining act be in fieri the intention to deliver does not execute the gift.
    5. The assignment being without valuable consideration was not a contract or trust which could be enforced.
    6. A seal does not import a consideration, if the instrument be not delivered.
    January 12th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.

      Appeal from the Orphans’ Court of Philadelphia: In the estate of Henry R. Trough, deceased: No. 204, to January Term 1872.
    The appeal in this ease was taken by N. & G. Taylor & Co., creditors of the decedent, from'the decree of the Orphans’ Court distributing the balance of his estate in the hands of William H. West, his administrator, the only question being as to the appropriation of the proceeds of an insurance on the life of the decedent. He died August 1st 1868, leaving a widow and five children, three of whom were by a former marriage.
    The distribution was referred to Daniel Dougherty, Esq., as auditor, who found amongst other things as follows :
    “ The decedent had effected an insurance on his life with the Royal Insurance Company of Liverpool for $>8000. After he had obtained the policy he executed the following assignment, dated May 17th 1861:
    “ ‘ Know all men by these presents, that I, Henry Trough, of, &c., the assured in a certain policy of life insurance of ‘ The Royal Insurance Company of Liverpool,’ No. 4582, for three thousand dollars, in consideration of one dollar to me in hand paid by John W. Hicks, which is hereby acknowledged, and for the further consideration of natural love and affection for my several children, hereinafter named as cestui que trusts — have, and hereby do assign, transfer and set over unto the said John W. Hicks, &c., all that the aforesaid policy, and the said three thousand dollars secured thereby, to have and to hold the same to the said John W. Hicks, his heirs for ever, in trust, however, for the separate use and benefit of my three children, begotten in my first marriage, to wit, Emma J. Trough, Sarah E. Trough, and Harry C. Trough, in equal shares and proportions, provided my said children shall survive me, and in case of the death of either of the said children before me, their share or part shall be equally divided between the survivors, and I hereby direct that the said money shall be invested by the said John W. Hicks in safe securities, for my said children, and the interest to be used for their maintenance and education, until they shall have married or reach the ago of twenty-one years, when I direct that their shares or proportion of the principal shall be paid to them, or the survivors or survivor of them. And in case all of my said children shall die before marriage, or before reaching the age of twenty-one years, then I direct the said trustee to pay the said sum, and the interest accumulating thereon, in equal proportions, to such children by my second marriage as shall survive me, share and share alike, when they shall marry or respectively reach the ages of twrenty-one years.’

      “ This assignment and the policy of insurance were then placed in an envelope, and the envelope deposited by Mr. Trough in the fireproof safe of the firm of which he was a member. On the outside of the envelope, in the handwriting of decedent, was written in large letters, the following:—
    “ £ John W. Hicks, plumber, Second street, above Almond, east side. Please send this to him at my death.' H. Trouuh.’
    ££ After his death the policy of insurance wras taken from the envelope, while the same -was in the custody of the surviving member of the firm, by the accountant, who collected from the insurance company the amount of said policy. On the payment of the policy, it was surrendered to the agent of the company here in Philadelphia, who, it is stated, has sent it to England.”
    It was agreed that the premiums were j>aid by Mr. Trough, and that Mr. Hicks, the assignee, did not know of the assignment of the policy until after the death of Mr. Trough. At the date of assignment Mr. Trough was solvent.
    The auditor reported that the assignment was invalid for want of delivery to the assignee in the decedent’s lifetime.
    He therefore distributed $2343.61 of the balance ($2646.43) in the administrator’s hands amongst the creditors of the decedent, N. & G. Taylor & Co., the appellants, being amongst them; the remainder amongst his widow and children.
    Hicks, the trustee, excepted to the report, that the auditor had not awarded the proceeds of the policy to him, by virtue of the assignment.
    The Orphans’ Court (Allison, P. J.) sustained the exception and awarded the proceeds of the policy to Hicks.
    N. & G. Taylor & Co. appealed to the Supreme Court, and assigned the decree for error.

      H. H. Law (with whom was H. JE. Hayward), for the appellants.
    Delivery is essential, although the deed be signed and sealed : Co. Litt. 356. A gift of a chose in action cannot be made by words in futuro: Campbell’s Est., 7 Barr 100: Grant v. Levan, 4 Id. 393; Withers v. Weaver, 10 Id. 391; Critchfield v. Critchfield, 12 Harris 100; Kidder v. Kidder, 9 Casey 268; Lonsdale’s Estate, 5 Id. 408; Pringle v. Pringle, 9 P. F. Smith 286.

      H. W. Sellers (with whom was W. H. Johnson), for appellee.
   The opinion of the court was delivered, February 2d 1874, by

Mercur, J.

The correctness of the decree made by the court below depends upon the solution of two questions. They are:

I. Was there a gift executed? If not,

2. Was a valid trust created ?

To constitute a gift, it must have been consummated by delivery. It cannot be made by words in futuro, or by words in prcesenti unaccompanied by such a delivery of the possession as makes the disposal of the thing irrevocable: In re Campbell’s Estate, 7 Barr 100 ; Withers v. Weaver, 10 Barr 391; Kidder v. Kidder et al., 9 Casey 268 ; Linsenbigler v. Gourley, 6 P. F. Smith 166; Pringle v. Pringle, 9 P. F. Smith 281. Where the donor retains the control of a voluntary bond or any chose in action given or assigned, he retains control over the gift, and may cancel or destroy it. The seal to a voluntary assignment will not estop the assignor until delivery, or what is equivalent to it: Pringle v. Pringle, supra. Where the determining act remains in fieri, the intention to deliver does not execute the gift: Crawford’s Appeal, 11 P. F. Smith 52.

What is the evidence of a delivery of the assignment? After Trough had executed it, he placed it together with the policy in a sealed envelope. Upon the outside thereof, he wrote the name of the assignee, with his occupation and residence, adding “ please send this to him on my death,” and signed his name thereto. He then put the envelope in a fire-proof safe of the firm of which he was a member. After his death, which occurred more than seven years thereafter, the seal was broken and the assignment found. During all the interval between the assignment and his death, he continued to pay the premiums upon the policy.

During his life, neither the assignee nor the cestui que trust had any knowledge of the assignments. He kept it within his exclusive control. It did not pass out of his possession.

Placing it in the safe which belonged to the firm of which he was a member, did not deprive him of its possession.. It is not shown that his partner ever saw the envelope prior to the death of Mr. Trough; nor, if he saw it, is there anything indicating he had knowledge of its contents. The direction on the envelope was to deliver after Trough’s death. It clearly negatived all idea of a delivery prior to that event. He retained the exclusive dominion and control over it, with full power to revoke the request at his o.wn will and pleasure. Hence, we are clearly of the opinion that there was no such delivery as to constitute a valid gift.

Then as to the trust. The assignment was not a contract that could be enforced. It lacked the consideration, necessary in the absence of a delivery, to support a contract or create a trust. Its sole.consideration was natural love and affection. This is insufficient: Kennedy’s Executors v. Ware, 1 Barr 445; In re Campbell’s Estate, supra. No court of equity would have compelled its delivery: 2 Kent’s Com. 438. A court of equity will not enforce an unexecuted voluntary agreement: Colman v. Sarrel, 1 Vesey, Jr., 50. It is true, a seal in law imports a consideration when the instrument has been delivered; but prior to a delivery, or some act which is equivalent thereto, no such presumption is created : Pringle v. Pringle, supra. The cases of Raybold v. Raybold, 8 Harris 308, and Crawford’s Appeal, 11 P. F. Smith 53, are entirely consistent with the result at which we have arrived. In each of them there was a valuable consideration to support the trust.

In the former was the additional fact that the property was purchased with the money of the persons claiming the benefit of the trust, and the trustee had, in compliance with their request, caused a deed to be prepared, in pursuance of the trust, although it was not executed. In the latter there had been a distinct credit entered on the books in favor of the claimant.

We think the court erred in sustaining the exceptions to the auditor’s report, and in awarding the money to John W. Hicks.

The errors assigned are sustained.

The decree is reversed, the exceptions to the auditor’s report are dismissed, and the record ordered to be remitted to the Orphans’ Court, to make distribution accordingly, and it is ordered that the costs of this appeal be paid by the appellee.