author: Green, J.

text:
    May Teem, 1881,
    No. 14.
    May 2d, 1881.
    McGettrick’s Appeal.
    1. An auditor appointed by the Orphans’ Court to distribute a fund arising from the sale of the trust estate of a decedent has jurisdiction to inquire into the^ validity of a deed purporting to convey the proportion of a distributee when the deed is attacked as fraudulent.
    2. The Orphans’ Court has full power and adequate procedure to dispose of such a controversy.
    8. A deed is not a proceeding of any court, but an instrument inter partes.

    Appeal of Eleanor J. McGettrick from the decree of the Orphans’ Court of Lancaster County, confirming the report of an auditor appointed to distribute funds in the hands of a trustee, to sell the real estate of John McGrann, deceased.
    John McGrann died intestate September 23d, 1872, unmarried, and without issue. There was a balance of $5067.38 in the hands of a trustee to sell the real estate of the decedent, and the Orphans’ Court of Lancaster County appointed an auditor to distribute the fund. Eleanor J. McGettrick was a daughter of a deceased sister of the decedent, and as such entitled to a distributive share in the estate. Her share was claimed before the auditor by Robert Taylor, of Wilmington, Deb, under a deed executed by her, dated March 10th, 1876, and duly recorded in Lancaster County, "by which her whole interest was conveyed to Taylor. She admitted the execution of the deed, but claimed that it was voidable because of fraud, because she was incapable of executing it on account of intoxication, and through want ■of consideration. Evidence produced before the auditor proved beyond doubt that she was intoxicated when she .signed the deed, and had been so for several months before. The auditor found that “ the only persons who can be affected by this deed are the grantor and grantee, and if any fraud has been practiced on the grantor, or if the deed is voidable on account of the want of capacity to contract on the part •of the grantor or want of consideration, they must go into the proper court to have it set aside. The auditor is therefore of opinion that he has no jurisdiction in the matter and awards this share to Robert Taylor.”
    To this finding Eleanor J. McGettrick excepted, and the Court below, Patterson, J., dismissed the exceptions and confirmed the report of the auditor absolutely. The Court also refused an application for an issue to try the validity of the said deed, “ she having failed to ask for or have entered on the minutes of the audit that she claimed an issue, and would move the Court to grant one.”
    These rulings were assigned as error.

      B. F. Eshleman and D. G. Eshleman for the appellant.
    The Court had jurisdiction: Whiteside v. Whiteside, 8 Harris, 474 ; Gochenaur’s Estate, 11 Harris, 460 ; Dundas’s Appeal, 23 P. F. Smith, 474 ; Rice’s Appeal, 29 P. F. Smith, 182; Campbell’s Appeal, 30 P. F. Smith, 315 ; Hammett’s Appeal, 2 Norris, 394 ; Otterson v. Gallagher, 7 Norris, 357.
    Being fraudulent the deed could be shown to be void in any court in which it is set up as evidence of a claim: Jackson v. Summerville, 1 Harris, 359 ; Mitchell v. Kintzer, 5 Barr, 216 ; Rankin v. Porter, 7 Watts, 387 ; Bixler v. Kunkel, 17 S. & R., 298 ; Mechling’s Appeal, 2 Grant, 157; 1 Story’s Eq. Jur., § 238.

      William Aug. Atlee for appellee.
    If this deed was obtained by fraud it may be avoided by bill in equity as in McMurray v. Davis, 5 W. N. C., 305. While there is no case that decides this question there are many that decide that an auditor cannot examine into the validity of a judgment: Dyott’s Appeal, 2 W. & S., 557 ; Leeds v. Bender, 6 W. & S., 315 ; Thompson’s Appeal, 7 P. F. Smith, 175 ; Borland’s Appeal, 16 P. F. Smith, 470 ; Kendig’s Appeal, 1 Norris, 70 ; Titusville Bank’s Appeal, 4 Norris, 528.
   The opinion of the Court was delivered by

Green, J.

In this case the proceeds of the sale, under an order of the Orphans’ Court, of the real estate of an intestate, were in the hands of the trustee for distribution. One of the claimants to the fund was a niece of the intestate. Her share of the proceeds was claimed by the appellee, Robert Taylor, by virtue of a deed to him from the appellant for her interest in the lands sold. This deed was attacked as having been obtained fraudulently from the appellant, and as being consequently void. The auditor held that he had no jurisdiction to inquire into the validity of the deed, and for that reason declined to consider the merits of the controversy and awarded the share of the appellant to her grantee. On exceptions taken to this action of the auditor an application was made to the Orphans’ Court for an issue to try the validity of the deed to Taylor; but the Court refused the issue, holding that the appellant was bound by the action of the auditor, and that the latter had decided adversely to her claim. We are of opinion that the auditor was mistaken in supposing he had no jurisdiction to inquire into the validity of the deed, and that the learned judge of the Orphans’ Court was in error in dismissing the appellant’s exceptions to the report of the auditor. It is, of course, undisputed that the Orphans’ Court has exclusive jurisdiction to distribute the estates of decedents among those entitled to them. Such distribution necessarily includes the power and the duty to ascertain the person to whom distribution must be made. When the share of one who is apparently entitled is claimed by another, such claim must be established in the proceeding for distribution, and as it must be there established, so it may be there impugned. There is no occasion to resort to any other court, or to any other proceeding, to determine the validity of the claim, as the Orphans’ Court has full power and adequate procedure to dispose of the controversy. If a deed or other instrument is set up as a muniment of title for the interest of a distributee, an attack upon its validity is in no respect an impeachment of it in a collateral proceeding. A deed is not a proceeding, nor the result of one. It is not a judgment of a court, nor a decree of any species of tribunal. It is but an instrument inter partes, and has no higher sanction than can be given to it by the act of the parties. As such it must abide the tests of all voluntary contracts. It is, therefore, as liable to impeachment as any other form of contractual relation, and is necessarily subject to be invalidated whenever it is proffered to a tribunal as the basis of a right. These considerations are fundamental, and the authorities which prove that the judgment of a court cannot be impeached collaterally, and is therefore obligatory upon an auditor, have no application.

Decree reversed and record remitted, with directions to the Court below to re-commit the case to the auditor for further proceedings before him, and the cost of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Sterrett, J.

license: Public Domain

text:
    May Term, 1881,
    No. 154.
    May 24th, 1881.
    Fosselman versus Elder.
    1. A testatrix, in her will, which was duly proved, devised and bequeathed, inter alia, as follows:
    “Ido will, devise, and bequeath to Isabella Fosselman (who has lived with me for many years) the house and lot wherein I now live, together with all the furniture and personal property that may be therein at the time of my decease. By furniture and personal property I mean everything I may have at my decease, except notes and bonds and evidences of debt, and also §1000 in cash, to be paid her as soon as practicable after my decease; provided, nevertheless, the legacies herein bequeathed shall be forfeited if she claims any compensation for services rendered me from, my estate.”
    Among her valuable papers was found an envelope on which was indorsed: “ Dear Bella, this is for you to open.” It contained a note for §2000 and' the following paper:
    . “ Lewistown, October 2d, 1879.
    “ My wish is for you to draw this §2000 for your own use should 1 be called off sudden.
    “ Elizabeth Fosselman.”
    The indorsement on- the envelope, and the paper contained in it, were in the handwriting of the testatrix. It was proven that she was accustomed to call Isabella Fosselman “ Bella.” Held, that the paper was testamentary in its character, intended to take effect on the death of the testatrix, and clearly designated the accompanying note as the subject of the bequest.
    2. The inscription on the envelope should read as a preface to and in connection with the paper inclosed therein, and they together constitute a valid testamentary disposition of the accompanying note operating as a codicil to the will of the testatrix.
    3. It is not essential to the validity of a will that the different parts should be physically united. It is sufficient if they are connected by their internal sense, or by a coherence and adaptation of parts.
    4. It would be unimportant if it were shown affirmatively that the address on the envelope was written last in order of time. If the signature of the writer is appended to what is written, it fully meets the requirements of the statute.
    Error to the Court of Common Pleas of Mifflin County.

    This was an issue amicably framed in the Court below between Isabella Fosselman, plaintiff, and George W. Elder, executor of the last will and testament of Elizabeth Fossalman, deceased, defendant, to ascertain whether certain papers therein described constituted a good testamentary disposition of a certain note for $2000.
    On the trial before Junkin, P. J., the following facts were shown:
    Elizabeth Fosselman died in January, 1880, leaving a last will and testament, dated July 17th, 1878, of which she appointed George W. Elder executor. In it she devised and bequeathed, inter alia, as follows:
    “I do will, devise, and bequeath to Isabella Fosselman (who has lived with me for many years) the house and lot wherein I now live, together with all the furniture and personal property that may be therein at the time of my decease. By furniture and personal property I mean everything I may have at my decease, except notes and bonds and evidences of debt, and also $1000 dollars in cash, to be paid her as soon as practicable after my decease; provided, nevertheless, the legacies herein bequeathed shall be forfeited if she claims any compensation for services rendered me from m3' estate.”
    In the bank book of the testatrix, which was in a bureau drawer in her sleeping-room, one of the appraisers of the estate found a sealed envelope, on which was indorsed in her handwriting: “ Bear Bella, this is for you to open.” Within the envelope was inclosed a promissory note in the following form:
    12000. Lewistown, October 2d, 1879.
    One year after date the Trustees of the Presbyterian Church of Lewistown promise to pay to Mrs. Elizabeth Fosselman, or order, the sum of $2000, without defalcation, for value received, with interest at the rate of five per cent., payable semi-annually.
    Attest:
    George W. Soult,
    Secretary.
    T. F. McCoy,
    Pres, of tbe Board of Trustees.
    Along with this note was inclosed a paper on which was written in the handwriting of testatrix:
    “Lewistown, October 1-2, 1879.
    “ My wish is for you to draw this $2000 for your own use should I be called off sudden.
    “Elizabeth Fosselman.”
    It was proven that the testatrix habitually called the . plaintiff “Bella.”
    The Court reserved the question whether these papers together constituted a testamentary disposition of the note, and the jury gave a verdict for the plaintiff.
    The Court entered judgment for the defendant, non obstante veredicto, filing the following opinion:
    “ First, then, as to the exhibit ‘ A/ being testamentary in its character. It was to take effect after death, and contains a disposition, either of $2000, or a note for that amount found in the same envelope. In Cock v. Cooke, L. R. 1. P. and B., 241, a duly executed paper in these words: ‘I wish my sister to have my bank book for her own use/ was held testamentary ; also in the Goods of Cole, L. B., 2 P. & B., 862. In Doe d. Cross v. Cross, 8 Ad. and Ellis, N. S., 714, a person being in India executed the following instrument: Know all men,’ etc., that I make E. my lawful attorney, for me and in my name and to my use to ask, demand,’ etc. And I do empower her, the said E., to hold and retain all proceeds of the said property for her own use until I may return to England and claim possession in person, or, in the event of my death, I do hereby, in my name, assign and deliver to said E. the sole claim to the before-mentioned property, etc.’ He died in India without having returned to Great Britain, and it was held that the writing operated as a devise to E. Chief Justice Denman said: What principle of law is there to prevent it from being a will ?’ So Marsden in re, 1 Swab. & Trist., 542, where one being informed that he could not recover from his present illness, expressed a wish that his wife should be in a condition to receive at his death certain sums of money in two savings banks, and signed, in the presence of two witnesses, orders for the payment of the money to her by the banks, and died the day after, the Court granted administration to the widow, with the orders annexed, as containing the will of the deceased; and there are many similar cases cited by Red-field on Wills, 180,181, etc., in foot-notes; Williams on Ex., sec. 3.
    “ The next question is, has testatrix sufficiently designated the object of her bounty? Exhibit A’ does not name Isabella, the plaintiff, but the envelope is addressed to her, and is this address a part of her will? It is in testatrix’s own handwriting, but it is not signed at the end thereof. Unless, then, the words written on the envelope, ‘Dear Bella, this is for you to open,’ can be made a part of the will, the $2000 bond or note is not given to any one by name or description. In Wikoff’s Appeal, 3 Harris, 290, Chief Justice Gibson declares, that it is a rudimental principle that a will may be made on distinct papers, as was held in the Earl of Essex’s Case, cited 1 Show, 69 ; that it is sufficient that they are connected by their internal sense, by coherence or adaptation of parts. In Ginder v. Farnum, 10 Barr, 98, several sheets of paper fastened together by a string, with the signature of the testator at the end thereof, were held sufficient under the act of Assembly. But here there was inherent evidence on the face of the papers, and no proof of any fraudulent addition. The most diligent search has disclosed no case in which a mere'address or indorsement on an envelope or wrapper containing a will has ever been admitted to probate as a part of the inclosed will. Whenevér a letter has been shown to be testamentary it was complete in itself, requiring no aid from the envelope, as see Morrell v. Dickey, 1 Johnson, ch. 153. This case is so novel that we must reason upon elementary principles. Now it is undoubted that had the words, ‘ Dear Bella, this is for you to open/ been added, without the testatrix’s signature to the foot of the signed will, the writing would have constituted no part of the will ‘A:’ Hay v. Harden, 6 Barr, 409. Then, if the words attached to the foot of the will ‘A’ itself could not be probated as part of that will, because unsigned by the testatrix, there is far less reason to hold the same words a part of the will when found indorsed on a mere envelope inclosing the will. In the nature of things the indorsement of the words on the back of the envelope was done subsequent to the execution of the will ‘A/ and could not be a part of the will itself, nor intended as a part, but were used to identify the will itself, and point out who were entitled to its custody. The truth is very manifest, namely, that Elizabeth Fosselman contemplated a gift of the $2000 trustee note, and had no occasion to say anything more definite than what the signed paper contained. It will be observed that Exhibit ‘A’ in no manner refers to the writing on the envelope so as to make the indorsement a part of the will, and the rule is that a ‘ reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not yet written, or where the description is so vague as to be incapable of being applied to any instrument in particular. But if there is a reference to any written document described as then existing in such terms that it is capable of being ascertained, parol evidence is admissible to ascertain itAllen v. Maddock, 11 Moo., P. C., 454; in the Goods of Mary Sunderland, deceased, 1 Courts of Probate and Divorce, L. Rep., 1865-1869, pp. 198,199, 2i)0. We reach the conclusion that the indorsement on the envelope is no part of Elizabeth Eosselman’s will, and that Exhibit ‘A’ alone can be probated.
    “ The will then reads thus:

      “ ‘ Lewistown, October 1-2, 1879.
    “ ‘ My wish is for you to draw this $2000 for your own use should I be called oft* sudden.
    ‘“Elizabeth Eosselman.’
    “The next question is, who is ‘you?’ There are millions of people in the world who could be addressed as you, and here is a patent ambiguity on the face of the will. Here, too, this anomalous will presents what, it is safe to say, has never occurred before, namely, a bequest in the second person without naming the legatee. ■ Sir James Wigram’s YIth proposition is: ‘ Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases, — see proposition VII) will be void for uncertainty.’
    “Proposition VII: ‘Notwithstanding the rule of law which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, courts of law, in certain special eases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description of the will is insufficient for the purpose. These cases may be thus defined: Where the object of the testator’s bounty, or the subject of disposition (i. e.,the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator.’ He then enumerates the instances where it has been held that parol evidence is not admissible: 1. To fillup a total blauk in a will: Baylis v. Attorney-General, 2 Atk., 239 ; Gastledon v. Turner, 3 Atk., 257; Hunt v. Hort, 3 Br. C. 0., 311; or, 2, of inserting a devise omitted by mistake: Lady Newburgh’s Case, 5 Madd., 364; or, 3, of proving what was intended by an unintelligible word ; . . . or, 31, of ascertaining an intention which, upon the face of the will, was indeterminate, as iu ease of a devise to one of the sons of A., who hath several sons: 2 Veim. 265 ; and see Altham’s Case, 8 Rep. 155.
    “ It is undoubtedly settled by innumerable cases, both here and in England, that parol evidence cannot be received to explain the intention of a testator, except in two specified cases: 1. Where there is a latent ambiguity arising dehors the will, as to the pei’son or subject-matter meant to be described ; and, 2,to rebut a resulting trust: Kent in Mann v. Mann, 1 Johns. Ch., 231 ; Wallize v. Wallize, 5 Smith, 242, where the authorities are cited.
    “In Newell’s Appeal, 12 Harris, 199,Woodward, J., says: ‘ A will must be judged ex visceribus suis, and unless there be latent ambiguity, extrinsic evidence is not to control its construction, yet it has always been held that a defective designation of the devisee or legatee intended may be repaired by parol proof. If the person to take be not in some sort described in the devise, evidence will not be admitted to show who was intended, for that would be to make a will by parol; but where there are words of designation, though a mistake of the name, the ambiguity may be removed by evidence dehors the will.’ So in Best v. Hammond, 5 Smith, 412; Brownfield v. Brownfield, 8 Harris, 55 ; Domestic and Foreign Missionary Society’s Appeal, 6 Caséy, 425. The characteristics of all the cases of latent ambiguities are that the words of the will do describe the objects or the subjects intended, and the pai’ol evidence does not vary the instrument, but enables the Court to reject one of the subjects or objects to which the description in the will applies, and determine which of the two was signified by the description used in the will: Doe v. Morgan, 1 O. & M., 235; Redfield, 562, note. Redfield, 500-502, says: ‘Perhaps a solitary dictum may occasionally be 'met with ... in favor of the admission of parol evidence to explain an ambiguity or uncertainty appearing on the face of a will, though Lord Thur-low says there is no such case. If there be, we may venture to say it is no authority. If a will be uncertain or unintelligible on its face it is as if no will had been made, quod voluit non dixit.’

    “ In Still v. Hoste, 6 Mad., 192, the bequest was to Sophia Still, daughter of Peter Still. He had two daughters, Selina and Mary Ann. Except for the descriptive addition, ‘ daughter of Peter Still,’ the bequest was clearly void, it appearing that there was no such person as Sophia Still. But that name being rejected, the bequest stood ‘ to the daughter of Peter Still,’ and he having .two daughters, this made a clear case of latent ambiguity, and the parol evidence was received to show which daughter was intended. In Price v. Price, 4 Ves., 679, the bequest was to-Price, the son of-Price; the plaintiff being the only person claiming it, evidence was received to show that testator said he would provide for the plaintiff, and had left him something in his will. Careless v. Careless, 1 Mer., 384 ; the devise was to Robert Careless, my nephew, the son of Joseph Careless. It appeared that testator had no nephew Robert, who was the son of his brother Joseph, as he had in fact no such brother, but he had two nephews Robert, sons of his brothers John and Thomas. The description of the devise was therefore irrelevant and wholly void, and the name only remaining, with the addition of my nephevr, vras definite enough till it appeared there were two nephews of that name, which made it a clear case of equivocation, according to Lord Bacon’s maxim for the admissibility of extriusic evidence.
    “ It will be observed that in the cases cited, and indeed in all belonging to the class of latent ambiguities, there is a name, or part of a name, or some designation as nephew or son, sometimes wholly wrong, as in Beaumont v. Fell, 2 Peere Williams, 140, still a clue to the intent of the testator; while in the case before us, there is neither name nor description of the legatee, simply ‘ my wish is for you to draw/ etc. There is not even a misdescription to show that she meant some person. It is practically a blank, is not so strong or clear as an initial letter, for an initial letter might lead, to something. But even an initial letter is insufficient, as shown by Clayton v. Lord Nugent, 13 M. & W., 200, 206. Here the testator did not name any devisees, but gave his real estate first to K., then to —, then to L., -then to M., etc. The testator, on a piece of paper attached to the will, at the time of the execution, stated that ‘ the key and index to the letter, initials, etc., was in a writing ease in the drawer of a writing-desk on a card.’ After, or at the time of the testator’s decease, a card was found in the place designated explaining the meaning of the initials and characters used in the will. This was dated nearly a year before the will, and a witness had seen a similar card before the testator two years before his decease. It was held that the card was not admissible to explain the meaning of the will: Kell v. Charmer, 23 Beaven, 195, may seem in conflict with the case just cited. There testator gave to his son William a legacy expressed thus: i. x. x., and to another son, o. x. x. Testator was a jeweller, accustomed to use certain private marks to denote prices in his business. Extrinsic evidence was given to show that these letters represented the sums of £100 and £200. This case is questioned, and if conceded to be law, it must stand upon the difference between it and Clayton v. Nugent, supra, in this, that characters standing for amounts of money are found in the will itself, whereas in the other case the offer was to incorporate other writings as part of the will not referred to in the body of the will: Clayton v. Nugent, supra, furnishes an additional authority against admitting the indorsement on the back of the envelope to probate as a part of the will of Mrs. Fosselman.
    “ We have been much embarrassed with this view of the case, to wit: The testator having given the legacy to ‘ you/ thus designating some one, why may we not show by parol who was intended by the pronoun ? That where the bequest is so- given that all living persons are comprehended in the designation, why not, as where the description fits two or more, hear evidence of the intent to give to one of the many? "We answer that while the reasoning is plausible, still we are bound by the rule that patent ambiguities cannot be explained by evidence dehors the will. It is plain that this will does not tell you to whom the legacy is given, and this is the essence of patent ambiguity ; we wmuld then be making a will for the testatrix, because, while she has not given the slightest clue — not even the sex — to enable us to discover the object of her bounty, we will do that for her whenever we name anybody as entitled to take.
    “We conclude that although the paper ‘ A ’ is the testament of Elizabeth Fosselman, yet it is incapable of execution, and is void for uncertainty ; not so amusing as 'David Kelley’s will in 1 Casey, 460, but quite as incomprehensible without the aid of forbidden evidence.
    “ As this was an issue to try the ownership of the $2000 note given by the trustees of the Presbyterian Church to Elizabeth Fosselman, on October 2d, 1879, the real purpose was to determine the character of the paper ‘ A,’ and although found to be a will, still being void for uncertainty, the issue must be found against the plaintiff.”
    Plaintiff took a writ of error, assigning as grounds of error the following:
    1. The Court erred in determining in favor of the defendant the question reserved, to wit: Does the envelope addressed “ Dear Bella, this is for you to open,” taken in connection with the Exhibit “ A,” to wit:

      “ Lewistown, October 1-2, 1879.

      “ My wish is for you to draw this $2000 for your own use should I be called off sudden.
    “ Elizabeth Fosselman.”
    Accompanied with the church trustees’ $2000 note of October 2d, 1879, constitute a testamentary disposition of the said $2000 note ? Exhibit B.
    2. The Court erred in deciding “ that the indorsement on the envelope is no part of Elizabeth Fosselman’s will, and that Exhibit A alone can be probated.”
    3. The Court erred in deciding “ that although the paper A is the testament of Elizabeth Fosselman, yet it is incapable of execution, and is void for uncertainty.”

      A. Reed for plaintiff in error.
    The envelope with the writing inside make a complete instrument. There can be no doubt as to whom the testatrix intended as the object of her bequest. The word “you,” on the envelope refers to the person addressed, and she whose name appears on the envelope is the persou addressed. There is no certainty that the -words on the back of the envelope were written subsequently to the execution of the will. There are those who always write the address on the envelope first and the letter afterward.
    The address comes first in natural order. It was not necessary for the testatrix to sign the address on each paper on which the will was written. The will may be on distinct aud separate papers if they are connected by their internal sense, by cohesion in adaptation of parts: Wikoff’s Appeal, 3 Harris, 290.
    The true rule as to the admissibility of extrinsic evidence is that where the devisor has finally fixed on any certain person as the object of her bounty, but from the generality or relative character of the words it is uncertain who the person is, extrinsic evidence will be admitted to identify the person, and then the will acts in propria vigore. There are exceptions to the rule that extrinsic evidence cannot be admitted to explain a patent ambiguity: Jarman on Wills, vol. i, p. 744 ; 2 Williams on Executors, p. 1294 (Perkins’s Notes); Wigram on Wills, 65, 66, 178 ; Doe v. Needs, 2 M. & W., 129 ; Smith v. Doe d. Jersey, 2 B. & B., 533.
    As to whether the envelope should be treated as part of the will, or as evidence to explain it, has been decided in the affirmative as to both points: Goods of James Wedge, 2 Notes of Cases, 14; Goods of Jane Taylor, 4 Notes of Cases, 290; see also Griscom v. Evans, 11 Vroom, 402 ; and Shore v. Wilson, 9 Clark & Finelly, 486.

      A. B. Wanner and Frank R. Schell for defendant in error.
    A regular will which expressly excludes the plaintiff in error from taking the note in question is asked to be revoked by the informal, uncertain, and nugatory papers offered for probate as a codicil. There is always a presumption against informal or unfinished papers. In this case the codicil is void for uncertainty. The envelope cannot be admitted to probate because:
    1. The codicil does not refer to it.
    2. There is no proof that the envelope was written before the codicil was signed.
    The presumption is violent that the envelope was written last. If the paper be not in existence at the time of the execution of the will, it cannot be incorporated into it or taken as in any manner testamentary: 1 Jarman on Wills, p. 38, ed. 1881; Goods of Hunt, 2 Rob. Ecc. Rep., 622 ; Chambers v. McDaniel, 6 Ired. L., 226-229 ; Sanford v. Raikes, 1 Mer., 646.
    The codicil on its face shows a patent ambiguity, and parol evidence is not admissible to show who was meant by “ you:” Castleden v. Turner, 3 Atkyns, 257 ; 1 Jarman on Wills, 730.
    The cases of Jane Wedge and Jane Taylor do not rule this case. The superscriptions were there on the same paper, and not on a separate envelope.
   The opinion of the Court was delivered by

Sterrett, J.

The facts upon which the question of law in this case arose were either admitted or established by the verdict.

' In the second item of her will, dated July 18th, 1878, the defendant’s testatrix made the following provision for the plaintiff, viz.: “I do will, devise, and bequeath to Isabella Fosselman (who has lived with me many years) the house and lot wherein I now live, together with all the furniture and personal property that may be therein at the time of my decease; by furniture and personal property I mean everything I may have at my decease, except notes and bonds and evidences of debt; and also $1000 in cash, to be paid to her as soon as practicable after my decease; provided nevertheless, the legacies herein bequeathed shall be forfeited if she claims any compensation for services rendered me from my estate.” The testatrix having died suddenly in January, 1880, the will was duly probated a few days thereafter, and letters testamentary issued to. defendant, the executor therein named. While he and the appraisers were engaged in making the inventory, a sealed envelope was found, among the valuable papers of the deceased, on which the following words addressed to the plaintiff were indorsed, viz.: “Dear Bella, this is for you to open.” The envelope was immediately handed to her, and being opened in the presence of the executors and appraisers, it was found to contain a paper of which the following is a copy, viz.:

“Lewistown, October 2d, 1879.
“My wish is for you to draw this $2000 for your own use should I be called off sudden.
“ Elizabeth Fosselman.”

It also contained a note for $2000, made by the trustees of the Presbyterian Church of Lewistown, dated October 2d, 1879, and payable to the order of testatrix one year after date, with interest at the rate of five per cent.

After a memorandum of these papers was made by the appraisers, the executor took possession of them, and the right of the plaintiff to collect the note or receive the proceeds thereof having been denied by the residuary legatees, an amicable issue was framed between her and the executor to test her right thereto. On the trial there was no dispute as to any of the material facts. It was conclusively proved by two witnesses that the indorsement on the envelope and the paper, of which the foregoing is a copy, were both in the handwriting of Mrs. Fosselman, and there was not the slightest evidence to cast any suspicion on the integrity of the transaction. The learned judge submitted the case to the jury with instructions to render a verdict in favor oí the plaintiff unless they found that the said indorsement and paper were not genuine, or had been fraudulently altered; subject to the opinion of the Court on the question: Whether the paper of October 2d, 1879, in connection with the accompanying note of same date, and the indorsement on the envelope, is a testamentary disposition of the note or the proceeds thereof.

In his opinion on the reserved question, the learned judge has conclusively shown that the paper referred to is testamentary in its character, intended to take effect upon the death of Mrs. Fosselman, and clearly designated the accompanying note as the subject of the bequest. These conclusions are so fully sustained by both reason and authority, that it is unnecessary to add anything to what has been so well said in the opinion of the Court below on that subject.

The only remaining question is whether the testatrix has sufficiently designated the plaintiff as the object of her bounty in the paper that is claimed to operate as a codicil to her will. The Court below held that she had not, and accordingly entered judgment in favor of defendant non obstante veredicto. In this wre think there was error. It is true the testamentary paper of October 2d, 1879,- does not designate the plaintiff by name, and if we had no written evidence to show who was meant by the pronoun, “you,” the bequest of the note would be void for uncertainty, but it is a settled fact that the envelope is addressed to -the plaintiff', and why should not that indorsement in the handwriting of the testatrix be taken as a part of the testamentary disposition ? It is well settled that a will may be written on several separate pieces of paper. It is not even essential to its validity that the different parts should be physically united ; it is sufficient, if they are connected by their internal sense, or by a coherence and adaptation of parts: Wikoff’s Appeal, 3 Harris, 281. It was held in Guider v. Farnum, 10 Barr, 98, that where a will is written on several sheets of paper, fastened together by a string, proof by two witnesses of the signature of the testator at the end thereof is sufficient; and that the question whether there has been a subsequent fraudulent addition to, or alteration of, the instrument is for the jury, as in other cases. In the Goods of Wedge, 2 Notes of Cases, a portion of a letter was admitted to probate as the will of Jane Wedge, who on the third page of the letter wrote, and in the presence of two witnesses, as required by the English statute, subscribed her name to the following, viz.:

“ When I dey I would like you to bury and take all I got for your treatment to me and by somethin for your little girl.” The subscribing witnesses testified that after the paper was signed and attested, the deceased folded up the letter, and in their presence wrote the superscription it bore, in holding that the paper was clearly entitled to probate, the Court said : “The letter is addressed to Mrs. Henry Host, and by ‘ you5 the testatrix could mean no other person to be legatee than the person she addressed. I am of opinion, therefore, that the person is executor according to the tenor, and that probate should pass to'him.” That case is cited with approval in The Goods of Taylor, 4 Notes of Cases, 290, in which Mrs. Taylor made her will in the form of a letter, addressed on the outside to Sir George Simpson, and, after bequeathing her personal effects to her daughter, added the following: “ I hereby appoint you my executor to carry this, my will, into effect.” Administration with the paper annexed was claimed by the daughter on the ground that no executor was designated in the will; but the address on the letter was admitted to show that by “you’’the testatrix meant Sir George Simpson, the person to whom the letter was addressed, and probate was accordingly decreed to him as executoi’. In both these cases no envelope was used. The letters were in the form generally in use before the introduction of envelopes, but that fact cannot affect the principle. A separate paper inclosed and sealed up in an envelope is just as much a part of the letter as if the name of the person to whom it is addressed was indorsed on the paper itself. There is no room in either case to doubt that the writing inside is addressed to the parson whose name is written outside, and so far as security against fraudulent alteration or substitution of one paper for another is concerned, the one is just as safe as the other before the seal is broken. Either of them is more secure than separate papers attached merely by a string, as in Guider v. Farnum, supra.

It is also urged as an objection to considering the address on the envelope as a part of the testamentary paper, the former was written after the other was signed, and, therefore, the latter should not be considered as having been signed at the end thereof, as the statute requires; but the objection is without merit. It assumes what may or may not have been the fact. It is not an uncommon thing for persons to indorse the address before writing the letter", but if it were shown affirmatively that the address on the envelope was written last in order of time, it would be unimportant. The natural order of reading ought to control, and that is the name of the party addressed first, and then what is written to or concerning him. If the signature of the writer is appended to what is written, it fully meets the requirements of the statute.

Without pursuing the subject further, we are of opinion that the inscription on the envelope should be read as the preface to, and in connection with, the paper inclosed therein, and that they together constitute a valid testamentary disposition of the accompanying note, operating as a codicil to the will of the testatrix.

Judgment reversed, and judgment is now entered in favor of the plaintiff on the question of law reserved.


text:
    May Term, 1881,
    No. 87.
    May 4th, 1881.
    Welchans versus Commonwealth ex. rel. Shirk.
    Where a petition for a mandamus to the respondent, directing him to deliver up certain books and moneys, set forth that the respondent was by joint resolution of city councils suspended from his office of city treasurer and receiver of taxes, and that the relator was appointed in his place, but did not show affirmatively that an affidavit had been made, by a majority of the committee verifying his account, to a default therein, as required by the section of the charter authorizing removal; and the answer of the respondent alleged that he had at all times conducted himself faithfully, honestly, and carefully in his office, and had never given cause for suspension, that councils had no right to remove him, and that he was still the treasurer and receiver of taxes. Held, that on demurrer the answer was sufficient.
    Error to the Common Pleas of Lancaster County.

    This was a petition for a mandamus, by William 8. Shirk, the plaintiff in the Court below, which set forth that Edward Welchans was, April 5th, 1880, elected by the councils of the city of Lancaster, treasurer and receiver of taxes, to serve for one year, subject to the right of suspension or removal by said councils as provided by law; that, January 5th, 1881, the said councils by joint resolution suspended him from his office, and January 7th, 1881, by joint resolution the said suspension of Welchans was continued, and on the same day the petitioner was appointed or chosen by said councils in joint convention to hold the said office of treasurer and receiver of taxes during the term of said suspension ; that the petitioner has taken the oath as prescribed by law and given bond, which was duly approved ; that the said Welchans late treasurer has in his possession or under his control a large sum of money belonging to the city of Lancaster, believed on information to be between $20,000 and $25,000, and certain account books and other property belonging to the city of Lancaster, which moneys, books, and other property are necessary for the proper management of the financial interests of the city of Lancaster, and for conducting the affairs of the treasurer’s office, and all of which the said Welchans has refused on demand to deliver to the petitioner.
    The answer of Edward Welchans, the respondent, returned that April 5th, 1880, he was elected by the councils of the oity of Lancaster, treasurer and receiver of taxes for one year, that he gave bond duly approved, took the oath prescribed, and entered on the duties of his office, but denied that the said councils had the right to remove him; that he has at all times conducted himself faithfully, honestly, and carefully in his office as treasurer and receiver of taxes, and has never given cause for suspension from the same; that he is informed that councils of said city did January 5th, 1881, pass a joint resolution purporting and attempting to suspend him from his said office, but he alleges and declares that such resolution is inoperative and void, and the attempted suspension illegal, invalid, and of no effect ; that he was January 7th, 1881, and is now treasurer of the city of Lancaster and receiver of taxes; that William S. Shirk was not legally appointed treasurer and receiver of taxes of the said city of Lancaster, and is not now such treasurer and receiver; that he has in his possession as such treasimer and receiver of taxes $11,527.21, and certain books (describing them), and that under the laws governing the tenure of said office and defining the duties of its occupant, he cannot deliver over the moneys, books, and papers in his hands belonging to his said office until the expiration of his term of office, viz., April 4th, 1881, or to any other person other than his successor in office, who cannot be until that day elected.
    To this answer there was a general demurrer, followed by a joinder in demurrer.
    On the 14th of February, 1881, the Court ordered judgment to be entered on the demurrer for the Commonwealth, and awarded a peremptory writ of mandamus, saying : “ He failed or omitted to set forth wherein his suspension is illegal and invalid, or wherein the relator’s appointment to the office by the select and common councils was not a legal appointment. In other words his return is argumentative and inferential and not specific and certain. . . . But to the reply to the respondent’s return that he was the treasurer of Lancaster city at the issuing .of this writ, the adverse judgment of this court is already judicially recorded. The question of authority to suspend the respondent as treasurer aforesaid, has been decided by the president judge of this court in his opinion announced on the 11th of January last in a case between these identical parties on a motion to dissolve a preliminary injunction. . . . The legal authority of councils to suspend the city treasurer under certain contingencies and to appoint or elect a successor to serve until the next annual election cannot be doubtful or questionable.”

      William Aug. Atlee and J. Hay Brown for plaintiff in error.
    The controversy is as to the legality of the removal of the respondent and the election of the relator. It was the duty of the relator to sue out a writ of quo warranto. No court has yet tried title to office by writ of mandamus: Leslie v. The County Commissioners, 5 Rawle, 75 ; Commonwealth v. Commissioners of the County of Philadelphia, 6 Wharton, 476 ; The King v. The Mayor of Colchester, 2 Term Rep., 259 ; Rex v. Ward, 2 Strange, 894 ; King v. Harris, 3 Burr, 1422 ; Commonwealth v. Commissioners, 2 Parson, 220.
    It lies on the relator to show the legality of the proceeding. He nowhere shows the right of councils to suspend or that the necessary preliminary steps were taken. The new charter granted to the city of Lancaster by act of April 5 th, 1867,says:
    “ The said treasurer shall verify his cash account at least once in every month to the satisfaction of a standing committee of councils, and upon the affidavit of a majority of such committee to any default therein, the said treasurer may be suspended from office.” .... No affidavit of deficiency was ever made. No committee verified the cash account..

      D. G. Eshleman, George M. Kline, Charles J. Landis and J. L. Steinmetz for defendant in error.
    The title to the office is not in controversy. The plaintiff in error refused to verify his accounts before the proper committee. They discovered a deficit and unanimously made affidavit as required by the act of Assembly. It must be presumed that they proceeded according to law. It was not necessary to set forth in the petition the reasons which induced councils to act. Every allegation of a return must be direct: Commonwealth v. Commissioners of Allegheny, 8 Casey, 218 ; Heffner v. Commonwealth, 4 Casey, 108. Mandamus is the proper remedy : 1 Dillon v. Corporations, 2d ed., § 239 ; Tapping on Mandamus, 50, 94 ; People v. Killduff, 15 Ill., 492.
   The opinion of the Court was delivered by

Green, J.

In this ease the sole contention of the parties arises upon the pleadings. These consist of a petition for a mandamus, an answer, and a demurrer to the answer. The petition alleges that the respondent was elected treasurer and receiver of taxes of the city of Lancaster, to serve for one year from the 5th day of April, 1880, subject to the right of suspension or removal as provided by law. That on January 5th, 1881, by joint resolution of the city councils, the respondent was suspended from his office, and that on January 7th, following, the said suspension was, by another resolution, continued until further action ; and, on the same day, the petitioner was appointed to the same office. That the petitioner had duly qualified for the office, and that the respondent held in his possession certain moneys and books belonging to the city, which he refused to deliver to the petitioner, upon demand made, and which were necessary for the proper management of the financial interests of the city. A mandamus is asked to compel the delivery of the money and books referred to. To this petition the respondent filed an answer, in which he stated his due election to the office in question ; that he gave bond, which was approved ; took the prescribed oath and entered upon the duties of the office; but denies that the councils had the right to remove him. He further alleges that he at all times conducted himself faithfully and honestly in his office, and never gave any cause for suspension therefrom ; that he was informed of the passage of the resolution of 'suspension, but avers that it was inoperative and void, and that the attempted suspension was entirely illegal and of no effect. He further alleges that he was, on January 7th, 1881, and, up to the time of subscribing the answer still was, treasurer and receiver of taxes of Lancaster city, and that the petitioner was not legally appointed to the office, and was not such treasurer and receiver. To this answer the petitioner filed a general demurrer, and the respondent filed a joinder. The Court, holding the answer was insufficient, gave judgment against the respondent, and awarded a peremptory writ of mandamus. In this there was clear error. The demurrer admitted the truth of the facts set out in the answer. Both the petition and the answer concurred in asserting the due election of the respondent to the office, and the answer averred the subsequent qualification and entry by the respondent upon the duties of the office. He was, therefore, at the time the petition was filed, the lawfully elected, qualified, and acting officer of the city. Thus holding the office, he could not be arbitrarily deprived of it. No right to deprive him of it, except according to law, is alleged, but no suspension or removal in accordance with the law is in any manner averred in the petition. Nothing more is asserted than actual suspension by resolution. Copies of the resolutions are appended to the petition, but they contain no mention of any cause of removal. Moreover, the answer alleges that the respondent at all times behaved himself in his office faithfully, honestly, and carefully, and never gave cause for suspension from the same. The demurrer admits this to be true, and yet the Court gave ■ an adverse judgment. An attempt is made to defend the action of the Court by referring to the 25th section of the city charter (act of April oth, 1867), which confers authority to remove the treasurer. The clause in question is in the following words : “ The said treasurer shall verify his cash account at least once in every month, to the satisfaction of a standing committee of councils ; and upon the affidavit of a majority of such committee to any default therein, the said treasurer may be suspended from office, and another appointed until the further action of councils.” It will be seen at once that the right to suspend only arises upon the affidavit of a majority of the committee being made to a ■ default by the treasurer in the verification of his account. But no such affidavit is alleged, nor any default by the treasurer. Where, then, do the councils get the power to suspend? The fundamental facts, upon which alone the power is based, are neither alleged nor proved. More than that, the answer affirmatively avers that the respondent never gave any cause for suspension, and the demurrer admits this to be true. In order to sustain the judgment of the learned Court below, we would be obliged to presume the existence of a cause of suspension without any proof, without even an allegation to that 'effect, and, in the face of an assertion by the respondent that there never was such a cause, which assertion the petitioner admits to be true. The mere statement of this proposition is enough. Argument is quite unnecessary. We have no authority to make any such presumption in such a state of the record.

Judgment reversed, and judgment is now entered here on the demurrer in favor of the respondent, with costs.


author: Per Curiam:

text:
    May Teem, 1881,
    No. 135.
    June 7th, 1881.
    Farwell versus Kohler.
    Where plaintiff agreed to cut all the salable locust posts to the back line of a certain tract of land, at twelve cents per post, and actually cut the posts to a line described to him as the true line by a third person to whom defendant had referred him for directions as to the locality of the line, and the Court instructed the jury in a suit to recover for the price of the posts cut and delivered, that it was immaterial where the true line was, and the plaintiff was entitled to recover for the posts delivered, although it might subsequently turn out that the real and proper line was twenty or twenty-five rods further to the south : Held, not to be error, though it was in evidence that after the posts were cut the parties went together to the tract to ascertain whether the contract had been fulfilled, and were unable to agree.
    Error to the Court of Common Pleas of Clinton County.

    Assumpsit by W. T. Kohler against A. Earwell & Co., for compensation for cutting timber under two articles of agreement. 'The plaintiff and defendant entered into an agreement February 21st, 1877, as follows:
    “ W. T. Kohler agrees to clear off twenty rods in width from the Caldwell's run, or from Mrs. Annie Caldwell’s back line of her farm to the back line on the Swayne tract, — that is, the locust posts that would be salable, and for each post to receive twelve cents for them when delivered at the depot, and when they are all cut off the twenty rods in width, and back to the back line of the Swayne tract, the same width at back line, and hauled down to the l’iver in piles in the tree, to receive one-half of twelve cents for each post, and the other half when delivered at the depot.”
    Subsequently, on the 2d of March, 1877, the parties entered into another agreement, as follows:
    “ W. T. Kohler agrees to cut all salable locust posts from back line of Mrs. Annie Caldwell’s farm, and joining the line of the first twenty rods that W. T. Kohler took to cut off, now up to the back line of the Franklin Swayne tract, where it crosses Caldwell’s run, and clean all off from the run to the top of the mountain, and to the back line of the Swayne tract. When this width and space described is all cleaned off, and hauled in piles to the river in the trees, W. T. Kohler to receive six cents for each salable post, and when delivered to the depot to receive six cents more, which makes in all twelve cents a piece. If Farwell & Co. gets any orders for locust pins, to assort out the trees that is cut down and hauled in piles, and make an estimate of how many posts it might be, and Kohler paid for the number of posts to be delivered at depot just the same as posts.”
    The principal contention between the parties in the Court below arose through the uncertainty as to the location of the southern line of the tract. The plaintiff eut the timber under the terms of the contract down to a line called in the evidence the Baird line. The defendant contended that he ought to have cut down to a line over twenty rods further to the south, called the White line, and that not having done so, he had not completed his contract and was not entitled to recover. The material portions of the evidence given upon the trial of the cause below, were as follows:
    Kohler, the plaintiff below, testified upon cross-examination:
    “ Question. Now you knew where the lines of this land were.
    “ Answer. No, sir.
    “ Q. Were they ever shown to you ?
    “ A. No, sir.
    “ Q. Never shown to you ?
    “ A. No, sir ; not until I got them run.
    “ Q. Who run them for you ?
    “ A. Mr. Baird.
    “ Q. When did he run them for you ?
    “A. In 1877.
    “ Q,. Soon after the contract was made ?
    “ A. It was in the fall of 1877.
    “ Q,. Did Mr. Baird mark the line?
    “ A. Yes, he and the men that was with him marked the line.
    “ Q,. Did you tell who was with Mr. Baird ?
    “ A. James Somerson.
    “ Q,. Anybody else ?
    “A. No, sir.
    “ Q. Did you tell Farwell that you was going to run that line?
    “ A. No, sir.
    “ Q. Did he agree that the line made by Baird was the right line.
    “ A. No, sir; he did not.
    * * * -x-
    “Q,. Did you ever go to the line and see where the line was that Farwell claimed to be the line ?
    “ A. Yes, sir.
    * * * 'X
    “ Q. Did you go with him as far as he asked you to go ?
    “ A. Y es, sir.
    “ Q,. Did he give you any reasons for not going to the lines ?
    “ A. I didn’t hear any reasons about it; we went over the' hill, and it was a very warm day, and he had done considerable warming up himself, but 1 hadn’t, and he says there is a tree, and he points out here and there, and there is one over yonder, and here is one, pointing in another direction, and, says he, won’t they make nice posts, and won’t that one over yonder make a nice post, and that’s the way he kept going on. The first time, if I remember right, I didn’t say anything; but the second time, I suppose it was, that he said this, I says, Mr. Farwell, I didn’t come up here to hunt trees, I came up here with you for you to show me the line; says he, if I didn’t shut my mouth he would go right back home. I claimed I had as good a right to talk as him; says he, I can’t help it, and shows me another tree, and as we went on and when he seen a nice tree, or one that he thought was a nice one, he would stop and show us, and said they claimed to own them nice trees ; says I, Mr. Farwell, show me the lines, I will hunt the trees when the time comes; and says he, I told you if you didn’t shut up I would go home, and so we started for home.”
    Upon redirect examination he testified:
    “ Q. How did you come to go out there with Mr. Farwell to look for the line ?
    “ A. I asked him to go along with me and show me the lines in the first start.
    “ Q. State what he said to you about not being able to show you the lines when you first spoke to him about it.
    “ A. He said he didn’t know where the lines were ; he said I should go to Norris Mayers and he would tell me where I would find the line. I went to him and he told me where I would find them, and I cut' up to this line that Norris Mayers told me was the line.
    “ Q- Where was Norris Mayers at the time he gave you this information ?
    “ A. At his house.
    “ Q- You were not on the land at the time he told you ?
    “ A. No, sir.
    “ Q- Hid you go according to the directions or instructions Norris Mayers gave you ?
    “A. Yes, sir.”
    W. P. Baird, for the plaintiff, testified:
    “ Question. Well, what did you do ?

      “ Answer. I went to the run, where I knew the line crossed the run, then I traced it on east and marked it.
    * * * *
    Q. State whether you had previous knowledge of that old line?

      “ A. I had ; I had run the same line from that place years before that.
    “Q,. How far?
    “ A. A mile and a half or two miles across the mountain.
    “ Q,. You say it was blazed ?
    “ A. Yes, sir; they were old marks on it.”
    On cross-examination he said:
    “Q. Were you on that line after the second time you speak of?
    “A. Yes, sir.
    “ Q,. Who with ?
    “ A. I was there with the Farwells.
    “ Q,. Anybody else ?
    “ A. I don’t mind who else.
    “ Q,. .Did you find another line about twenty rods south of that one that time ?
    “A. We found the line, but I didn’t measure it.
    “ Q. Did you examine that line ?
    “ A. It was a new line, no old marks at all on it.
    “ Q. How far did you follow that line ?
    “A. We didn’t follow it very far; we took the bearings of it to see whether it was correct. The age I didn’t consider of any account.
    “ Q. Was it a correct bearing ?
    “A. Yes, it was a correct bearing.
    “ Q,. Do you know who run that line ?
    “A. No, I don’t.
    “ Q. How old were these marks ?
    “ A. To the best of my memory they were one year old.
    * * * *
    “ Q,. Did you say anything to Mr. Farwell about the line ?
    “ A. I said I had not much faith in that new line. It might be a line, but I didn’t have any belief in it.
    “ Q,. You made no thorough examination?
    “A. No, sir.
    “ Q,. Are you prepared to say now that the line you showed to Mr. Kohler is the southern line of the Waters Davis tract ?
    “ A. It is the line I always considered as the southern line of the Waters Davis survey.”
    A. K. White, for the defendant, testified:
    “ Question. Have you surveyed the Waters Davis tract (also called the Swayne tract) ?
    “ Answer. I have run the division line which runs between the Thomas Willings and it.
    “ Q. Is that the southern line of the tract ?

      “ A. Yes, sir; it is the southern line of the Waters Davis, the William Davis, and the George Davis.
    “ Q. When?
    “ A. It was either 1874 or 1875,1 don’t remember just when.”
    -x- ■» * *

    Absalom Farwell, one of the defendants, testified that the White line was the line of the tract, and that it was over twenty rods south of the Bail’d line.
    Norris Mayers, for the defendant, testified:
    Question. State whether or not Mr. Kohler at any time came to you to ask you where the southern line of that tract was ? 4

    “ Answer. Yes, he asked me where it was.
    “ Q. What did you tell him ?
    “ A. I told him as near as I could where he would find it, is what I told him.
    * * * ■»

    “Q. You know where the line is, do you?
    “ A. Yes, sir. I was along with Mr. Baird when he run it. I was along with him twice in there.
    * * * *
    “ Q. Mr. Mayers, do you know there are two lines, one run by Mr. Baird and another run by Mr. White ?

      “ A. I don’t know anything about the White line. I was along with Mr. Baird when he run it; I wasn’t along when Mr. White run it. I don’t know nothing about the White line. The Baird line is the one Pm talking about.”
    It was also in evidence that the timber cut by the plaintiff made 7787 posts, and that about 400 could have been made from the timber on the land between the Baird and White lines.
    Upon the testimony the Court below, Orvis, J., charged the jury, inter alia, as follows :
    “ The official survey of the Waters Davis, or this tract, has not been given in evidence, nor the official surveys of any of the surrounding ti’acts are given in evidence, and there is nothing in evidence by which you can tell where the southern line of this tract is or where it ought to be. There is not a single scintilla of evidence been offered by which a jury could fix the location of this tract. But it is a matter immaterial in the judgment of the Court where the real and true southern line of that tract is, as it appears from the evidence that the plaintiff not only went upon the ground to ascertain that line, but that he went to Absalom Farwell, one of these defendants, for information as to where the line was ; that he directed the plaintiff to go to Norris Mayers, who knew where the line was, and he would show it to him. He went to Norris Mayers and inquired of him for the information, as directed, who told him, not by going on the ground and pointing it out to him, but by telling him how and where he would find it, and the plaintiff says he went according to the direction of Mayers. Norris Mayers, a witness called by the defendants, admits that the plaintiff came to him for this information, and that he gave him directions how and where he would find the line; that he directed him to the line he knew of, and the only line he knew anything about was the Baird line; that he had been- over the line twice and knew of that line, but did not know of the other line run by Mr. White. It would appear from the testimony of Mr. White that there was no such line run upon the ground until 1874, when he run it and marked it. Mayers testified also that the line he knew of was near where Mr. Baird had run it, and that he had been acquainted with that line for twenty years. The plaintiff alleges he went to find the line as Mayers had directed him, and that he found the line according to the directions given by Mayers, and that he cut all the timber up to it that he was to cut under the contract. He also testified that he afterwards got Mr. Baird, a surveyor, to run the line and mark it on the ground for him, and that he went over the job the second time and cut all the timber up to that line that was fit to make salable posts. If he has done this then he has performed his share of the contract according to the terms of it, and he would be entitled to recover in this action of the defendants the balance due, although it may subsequently turn out that the real and proper line of the tract Avas twenty or twenty-five rods further south; we instruct you that that would not prevent the plaintiff from recovering for all the posts he delivered according to the terms of the contract.”
    Defendants excepted to this part of the charge. Verdict for the plaintiff, February 25th, 1881, for $327.91, and judgment thereon.
    Defendants took a writ of error, assigning as error the charge of the Court as above.

      C. S. McCormick for plaintiffs in error.
    It is conceded all around that one of these lines was the south line of the tract. It is a question of the weight of the testimony, but the Court takes the whole from the jury and says this evidence is not to be considered.
    The fact that Norris Mayers pointed out the wrong line in the judgment of tbe Court estops the defendants below from having the trees cut to the true line. The fact that Earwell and Kohler went together to see the lands, and ascertain whether the contract had been performed, shows that neither of them expected to be bound by the line pointed out by Mayers.
    The Court ought to have submitted to the jury first which of the two lines was the south line of the tract, and if the "White line is the true south line then did Kohler, by cutting only up to the Baird line, substantially perform his contract.

      T. C. Hipple for defendant in error.
    Howard Express Company v. Wile, 14 P. F. Smith, 201 ; Corn Exchange Bank v. Bank of Republic, 1 W. N. C., 462 ; Hyatt v. Johnston, 7 W. N. C., 561 ; Eister v. Paul, 4 P. F. Smith, 196 ; Ditmars v. Commonwealth,, 11 Wr., 337 ; Hall v. Dunham, 1 W. N. C., 487 ; Snodgrass v. Gavit, 4 Casey, 221 ; Preston v. Finney, 2 W. & S., 53.
   Per Curiam:

We find no error in the charge of the learned Court. There was no evidence in the case fixing the southern line of the tract. There was no official survey produced showing either the lines or the adjoiners, and if there was some testimony as to the northern line of the Willing tract that proved nothing. Under these circumstances, when Kohler acted under the information given to him by Mayers, to whom he was referred by Farwell, and who directed him to the Baird line, even if that was a mistake of Mayers, it would be a very harsh measure of justice to deny Kohler compensation for the timber which he had actually cut and delivered under his contract.

Judgment affirmed.


author: Per Curiam :

text:
    May Term, 1881,
    No. 106.
    May 18th, 1881.
    Appeal of the National Gas Company of Philadelphia.
    1. A claimant who has presented his claim before an auditor to distribute a fund arising from a sheriff’s sale, and, after the claim has been passed upon, has filed exceptions without having objected to the jurisdiction of the auditor, must he held in the Supreme Court to have assented to the distribution by the auditor, and is estopped from setting up that the fund to be distributed has not been paid into court.
    2. One section of a contract provided that the party of the first part should return and deliver to the party of the fourth part within five days after its date certain designated securities; another section of the contract provided that the parties of the fourth part should give to the party of the first part a full and exclusive license to use a certain patent process and apparatus in the city of Harrisburg, the said license having been made ready for signatures and approved by'all the parties, but that such license should not remain in force for a longer period than ten days from and after the date of the agreement, unless the parties of the first part should within said last-mentioned period return and deliver to the parties of the fourth part the said securities. Meld, that these covenants were dependent and were the considerations for each other, and the failure of performance of the latter covenant by the party of the fourth part released the party of the first part from the obligation of the former covenant.
    3. Semble, that a license subject to a royalty of twenty cents per thousand feet, and revocable upon failure to report and make payment, is not such a full and exclusive license as is called for by the agreement.
    Appeal of tbe National Gas Company of Philadelphia from the decree of the Court of Common Pleas of Dauphin County, distributing moneys arising from the sheriff’s sale of the real estate, personal estate, and corporate franchises of the Citizens’ Gas and Gaseous Fuel Company of Harrisburg.
    The Citizens’ Gas and Gaseous Fuel Company was incorporated December 21st, 1875, for the purpose of supplying the city of Harrisburg with gas and gaseous fuel. On the 5th of May, 1877, it purchased a lot of ground in Harrisburg on which it erected a brick building, occupied by apparatus for the manufacture of gas. Subsequently eighteen judgments were entered against the company. One of these was in favor of the Second National Bank of Philadelphia, under which execution was issued, and the real estate, corporate rights, and franchises were sold by the sheriff April 24th, 1879, for $60,000. This sum, less the sheriff’s costs and expenses, constituted the fund for distribution.
    The money was not paid into court, but the attorneys for the judgment creditors agreed in writing that the proceeds of the sale “ shall be considered as if paid into court, and that an auditor shall be appointed to make distribution of said proceeds in like manner and with same effect as if actually paid into court.”
    The Court below appointed an auditor to make distribution and report. Before the auditor, in addition to the judgments of record, there were a number of claims for book debts proven and allowed. The National Gas Company presented a claim before him which was based upon a “ Memorandum of settlement made and entered into by the Citizens’ Gas and Gaseous Fuel Company, as parties of the first part; Nathan Hilles, as party of the second part; James C. Thompson, as party of the third part; the National Gas Company, as parties of the fourth part; and T. S. C. Lowe, as party of the fifth part.” This agreement provided, inter alia, as follows:
    “ 2. The said parties of the first part are to return and deliver to said parties of the fourth part within five (5) days from and after this date, a promissory note, made by said T. S. C. Lowe, for $5000, with $11,000 in stock of the People’s Gaslight and Enel Company; also another note, made by T. S, C. Lowe, for $5000, it having been discounted by or being nowin possession of the Second National Rank of Philadelphia, together with $11,000 in bonds of the National Gas Company ; also $5000 in bonds of the City Gaslight Company of Trenton, N. L, and $1000 in stock of the last-named company; also the due bill of said T. S. C. Lowe for $600, and also all other notes, stocks, bonds, due bills, and obligations of every kind (including all receipts evidencing loans of said N. Hilles’s or J. C. Thompson’s notes), given by the parties of the fourth or fifth parts to said parties of the first, second, or third parts.
    “ 5. The said parties of the fourth part are to give to the said parties of the first part, at the signing hereof, a full and exclusive license to use in the city of Harrisburg the process and apparatus described in letters patent No.-, granted to said T. S. C. Lowe, September-, 1875, the said license having been made ready for signatures and approved by all the parties ; but such license shall not remain in foEce for a longer period than ten (10) days from and after this date, unless the said parties of the first part shall within said last-mentioned period return and deliver to said parties of the fourth part the notes, bonds, stocks, due bills, and obligations mentioned and referred to in article two above.”
    By an instrumetit under seal of the same date reciting the patent to Lowe,, the National Gas Company granted to the Citizens’ Gas and Gaseous Euel Company, “ full and exclusive liberty, license, and authority to use said process and apparatus in the city of Harrisburg,” upon condition that they should account for and pay over each year a royalty at the rate of twenty cents for each and every thousand feet of gas made by them. These papers are referred to in the report of the auditor respectively as Exhibits “ A ” and “ E.”
    The National Gas Company gave evidence of the value of the notes and bonds designated in Exhibit “ A,” and of the failure of tbe Citizens’ Gas and Gaseous Euel Company to return them, and claimed the sum of $22,386.26.
    The auditor found as follows:
    “ The consideration for this agreement to deliver said notes and bonds to the National Gas Company was, as testified to by Professor T. 8. C. Lowe, its president, the fact that the Citizens’ Gas and Gaseous Fuel Company had originally received them for the purpose of raising money for its own use and benefit. The consideration, as stated by Captain C. F. Muench, the president, and only officer of the Citizens’ Gas and Gaseous Fuel Company, joining in its execution, was the promise of the National Gas Company to grant to the Citizens’ Gas and Gaseous Fuel Company an exclusive license to use a patented process for generating gas, known as the ‘ Lowe process.’
    “ In support of his theory Professor Lowe testifies that he had loaned his notes for $10,000, and also $11,000 in bonds of the National Gas Company, to the Citizens’ Gas and Gaseous Fuel Company, in order to enable that company to raise money to pay its debts, and that the agreement of September ¿¡1st, 1877, was made in order to compel the latter company to pay these notes and return the bonds. This testimony of Professor Lowe is, however, directly contradicted by the testimony of Nathan Hilles and J. O. Thompson, both of whom testify, in the'most positive manner, that the notes were given by Professor Lowe to enable Mr. Thompson to secure a loan of money through Mr. Hilles, then the president of the Second National Bank of Philadelphia, for Lowe’s own use and benefit; that the only one of these notes which was ever negotiated was discounted by the Second National Bank of Philadelphia, and the whole proceeds paid to Professor Lowe personally ; that the $11,000 of National Gas Company bonds were delivered by Professor Lowe to Mr. Thompson as collateral security for the other of said notes, and that the same were pledged as collateral, with Professor Lowe’s consent, for the note previously discounted ; that all the transactions relative to said notes and bonds were with Professor Lowe individually, and for his own use and benefit, and that the Citizens’ Gas and Gaseous Fuel Company had nothing whatever to do with the matter, and at this time Mr. Hilles had n .thing whatever to do with the Citizens’ Gas and Gaseous Fuel Company. Professor Lowe further testifies that the bonds were not delivered as collateral for these notes, or either of them, hut were loaned at another time to the Citizens’ Gas and Gaseous Fuel Company.
    “ In this he is further contradicted by the note of October 5th, 1876, which expressly states that T. S. C. Lowe (the drawer) has ‘deposited herewith twenty-two bonds of'$500 each of the National Gas Company of Philadelphia, as collateral security.’ Messrs. Hilles and Thompson are entirety without interest in this distribution, so far as has been made to appear to your auditor, while Professor Lowe appears to be an interested party. While it is true that the claim is formally made-on behalf of the Rational Gas Company, no satisfactory evidence was produced to show how the National Gas Company became the owner of the notes which Professor Lowe claims to have loaned to the Citizens’ Gas and Gaseous Fuel Company. Besides, he is the president of the National Gas Company, the stocks and bonds of which are almost entirely owned by his wife. Being contradicted, as he is, by two disinterested witnesses and by his own note, your auditor is constrained to conclude that Professor Lowe’s testimony as to the consideration for the agreement of September 21st, 1877, is inaccurate, and that the Citizens’ Gas and Gaseous Fuel Company, prior to that agreement, had nothing whatever to do with said notes and bonds, or any of them, and was under no obligation to any person with respect to them, or any of them.
    “ If this conclusion be correct the consideration for the agreement on which this claim is based, as alleged by Professor Lowe, never had any existence ; the agreement is void and does not constitute a contract, and is insufficient to sustain any claim.
    “ But how stands the agreement in the light of the testimony of Captain C. F. Muench? He testifies that the sole inducement for the execution of this agreement by him was the promise of the National Gas Company to give the company of which he was president, the exclusive right to use the ‘ Lowe process ’ in the city of Harrisburg. He gives substantial reasons for his desire at that time to secure that exclusive license, viz., that the National Gas Company was then threatening to prevent any further use of this process by his company.
    “ Besides, in the opinion of the. auditor, the proper construction of the agreement seems clearly to indicate that the consideration is to be found in the mutual covenants contained in the paper; and these covenants are in harmony with the testimony of Captain Muench upon the question of consideration. The fifth paragraph of the agreement stipulates that the National Gas Company shall give the Citizens’ Gas and Gaseous Fuel Company a full and exclusive license to use the ‘ Lowe process.’ Did the National Gas Company comply with this stipulation ?
    “Professor Lowe testified that Exhibit ‘E,’ dated September 21st, 1877, is the license referred to in paragraph five of the agreement, and that a duplicate original thereof was delivered to Mr. Hilles, secretary of the Citizens’ Gas and Gaseous Fuel Company, at the time of the execution of Exhibit ‘ A.’

      “ Captain Muench, the only person representing the Citizens’ Gas and Gaseous Fuel Company in the execution of Exhibit ‘ A,’ testifies that the license mentioned in Exhibit ‘A’ was never delivered to him, and was never delivered to any one else to his knowledge. Is Lowe correct in stating that he delivered it to Ililles in Harrisburg on that day Í The paper bears the signature of W. M. Burke, secretary of the National Gas Company, and also the corporate seal. Professor Lowe says it was prepared ready for signatures in Philadelphia, while Exhibit ‘A’ was prepared in Harrisburg. Burke, the secretary, according to the testimony, was not in Harrisburg, and could not then have signed Exhibit ‘ E.’ If not then signed by Burke it could not then have been delivered by Professor Lowe. Again, the seal of the National Gas Company is on the paper, and the office of the company was in Philadelphia. It may be that Lowe had the seal with him and affixed it in Harrisburg, as he testi fies, but the mistakes heretofore pointed out in his testimony create a doubt in the mind of the auditor as to the accuracy of his recollection at this point.
    “ This license, even if delivered, is not, in the opinion of the auditor, such a license as meets the requirements of paragraph five of the agreement.
    “ That paragraph calls for a full and exclusive license.’ This is a license subject to a royalty of twenty cents per M. feet, and being thus restricted by the reserved right of the company to demand that sum for every M. feet of gas made, is not such Gull’ license as the agreement demands oras the parties contemplated when the agreement was made.
    “ There is no pretence that it was ever delivered to Captain Muench, the president of the company, or accepted by him as meeting the terms of his agreement. Without proof of such delivery and acceptance, has the National Gas Company shown such compliance with its portion of the agreement as will enable it to compel a performance by the Citizens’ Gas and Gaseous Fuel Company ? It is very doubtful whether a delivery to Plilles, as secretary, and an acceptance by him is sufficient even if admitted. But this license further stipulates that if the Citizens’ Gas and Gaseous Fuel Company neglects or refuses for thirty days to make report of gas manufactured and payment thereof, according to the terms of said license, then the National Gas Company may, at its option, revoke said license absolutely.
    “ That the Citizens’ Gas and Gaseous Fuel Company did not make reports and payments is proven, as is also the fact that the National Gas Company in consequence thereof, exercised its option to revoke said license, and then sold the ex-elusive license, free of royalty, to Messrs. Fleming & Ilildrup for a large sum of money, to wit, $12,000. This purchase was made by these gentlemen individually, and not for the Citizens’ Gas and Gaseous Fuel Company, and they were not at the time interested in the company in any way. Having thus recalled the only consideration shown for the agreement* under which it now claims, your auditor is of opinion that the National Gas Company cannot enforce any claim under it.”
    The National Gas Company filed exceptions to this finding. The Court below, Pearson, P. J., dismissed the exceptions, and confirmed the report. The company then appealed, assigning as error that the Court below had no jurisdiction of the matter in controversy, because the fund for distribution was never actually in court, and that the Court erred in dismissing the exceptions.

      Hall & Jordan for the appellant.
    What gives the Court authority is a gi’asp upon the proceeds of the sale. Without this they are powerless for its distribution: Williams’s Appeal, 9 Barr, 267 ; Atkins’s Appeal, 8 P. F. Smith, 86.
    Under the act of June 28th, 1871, all the parties in interest must assent.
    Want of jurisdiction can be taken advantage of in any stage of the proceedings: Borough of Little Meadows, 4 Casey, 256 ; Osgood v. Thurston, 23 Pick., 110 ; Hoffer v. Wightman, 5 Watts, 205 ; Clay v. Irvine, 4 W. & S., 232 ; Commonwealth v. Hoffman, 24 P. F. Smith, 105.
    The two papers dated September 21st, 1877, were executed at the same time, and refer to each other: Noell v. Graves, 8 Reporter, 308.
    The law implies a consideration from the seal; they recite that they are a settlement between the parties, and they contain mutual covenants : 1 Parsons on Contracts, 373 ; Chitty on Contracts, vol. i, page 50; Kent’s Commentaries, vol. ii, page 465* ; Kiester v. Miller, 1 Casey, 481; Kidder v. Boom Co., 12 Harris, 193.
    At the time of and by the terms of the agreement, the company covenanted for the surrender of the securities, and this contract itself estopped- the company from questioning the right of the National Gas Company to them. The auditor assumes that a license upon a royalty was not an exclusive license. The parties themselves were the proper judges of what their own agreement meant, and the clause “ ready for signature and approved by all the parties,” shows that this was the license intended. The covenant meant that the purchaser was to have the right to use the process in Harrisburg to the exclusion of all others, but not that they were to pay nothing for it.
    The evidence shows a delivery, and the contract was just as good without delivery as with it. There is a presumption of delivery: Kronk v. Insurance Co., 8 W. N., 52 ; Shelton’s Case, Cro. Eliz., 7 ; Steel v. Tuttle, 15 S. & R., 210 ; Diehl v. Emig, 15 P. F. Smith, 320 ; Blight v. Schenck, 10 Barr, 285.

      Fleming & McCarrell and Gilbert & McPherson for the appellees.
    As to'the question of jurisdiction, no other parties have appealed, and the appellant is not shown to be a party in interest. The act of June 28th, 1871, can only mean parties having an apparent prima facie interest.
    The appellant revoked and forfeited whatever license had been granted to the Gas and Fuel Company, and subsequently sold it to others. The consideration for the contract therefore failed.
   Per Curiam :

It does not lie in the mouth of these appellants to raise the objection that the fund ivas not in court for distribution. _ They appeared before the auditor, made no objection to his jurisdiction, presented their claim, and it was passed upon. They filed exceptions to the report without raising this objection. If they were parties in interest, under the act of June 28th, 1871, they must be held at this stage of the proceedings to have assented to the distribution by the auditor. We see no such palpable error in the findings of fact by the auditor confirmed by the opinion of the Court as would justify us in reversing the decree. It is evident, we think, that sections 2d and 5th of the agreement of September 21st, 1877, were dependent covenants, — the one the consideration of the other. The failure of the performance of section 5th, found by the auditor, released the Gas and Gaseous Fuel Company from their obligation under section 2d, and it followed that the appellant had no claim on the fund.

Decree affirmed, and appeal dismissed at the cost of the appellants.