author: Chief Justice Agnew

text:
    Pennsylvania Railroad Company versus Morgan.
    1. The plaintiff, a child of five years, was playing, with its companion, on a railroad track in front of a train approaching at the rate of about six miles an hour. As soon as the children were signalled from the train and saw the danger, they started to run off the track, and were evidently about to escape safely, but, in doing so, the plaintiff’s foot was caught in a crevice in the track; the engine was at once reversed and the brakes applied on the train, but not in time to avoid injuring the plaintiff. Nothing was done to stop the train until it was seen that the child was held fast and could not escape. The court below charged that “ where a child is upon the track, those in charge of an approaching train are bound to stop on seeing it, because they have no right to assume the child knows its danger or has the capacity to flee from it, as in the case of an adult.” Held, to be error, and that it was for the jury to have said whether the defendant’s employees were negligent in not trying to stop the train as soon as they saw the children on the track, there being evidence to show that they were misled by the plaintiff’s attempt to escape.

      2. Where there was every reason to believe that the plaintiff would be off the track before the train would reach her, and her escape was frustrated by a mere accident, and everything was done to avoid the injury, as soon as her true condition was ascertained, the railroad company was not responsible for the injury.
    May 18th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Error to the Common Pleas of Blair county: May Term 1876, No. 27.
    This was an action on the case brought by Eliza Morgan, a minor, by her next friend, against the Pennsylvania Railroad Company, to recover damages for injuries from the alleged negligence of the company in running a train of cars over its road.
    At the trial it appeared that at about five o’clock in the afternoon of October 15th 1874, a gravel and repair train, consisting of an engine, ten dump and truck cars and a caboose car, was backing on the Morrison’s Cove Branch, on a slightly down grade, with the caboose car on the front and the engine on the rear. The train hands in charge consisted of a fireman and a flagman, both of whom were on the front of the caboose car, upon the look-out, and also of the engineer and a brakesman, both of whom were upon the engine.
    The place at which the accident occurred was a sparsely-settled district just outside of the borough lines of Ilollidaysburg.
    The evidence as to the speed of the train at the time was conflicting ; for the plaintiff, there was evidence tending to prove that the speed was very great; but the evidence of the defendant, which seemed to have more weight, was that the train was not moving faster than six miles an hour, the rate allowed by the rules of the company.
    There was but a very slight curve in the road at this point, and nothing to obstruct the view of the track for a long distance. As the train approached a private crossing, and when it was at the distance of about 520 foot from the crossing, the hands on the front of the train saw the plaintiff, then a child of about five years of age, and a little boy, upon the track at this crossing. Nothing was then done to stop the train. When within 163 feet of the children one of the train hands called to the children to get off the track. They started to run off immediately; the boy ran straight across the track and got safely off; the girl started to run diagonally off, and in doing so caught her foot inside of the rail, and between it and the plank, in the space left for the flange of the wheel. As soon as the train hands saw her predicament, the train then being within about 100 feet of the child, they applied the brakes, and signalled the engineer, who reversed the engine. Although every possible exertion was used, it was impossible to stop the train until the front car had run about 60 feet past the crossing. Meantime the child’s mother and one of the neighbors had run to her assistance and endeavored to extricate the foot. Not being able to do this in time, as the train passed, they hold the child’s body as far out of the way as possible, so that the front wheel of the caboose car, sliding under the pressure of the brake, appeared to have pushed the plaintiff’s foot out of her shoe, lacerating the foot and producing, as was testified, a permanent injury. The shoe was left sticking in the space between the rail and the plank, where it was first caught.
    It appeared that the brakes and all other parts of the cars were the best in use, and in good order, and that the train was properly manned by experienced and competent men.
    There was some evidence that the plaintiff’s foot was caught in a hole outside of the track, negligently left there by the defendant, but the weight of the evidence was clearly, that the hole was, as above stated, inside of the rail.
    It did not appear that the plaintiff was lawfully upon the track at the time of the accident. The crossing upon which she was playing at the time was entirely a private one, the use of which was confined to a few families, including that of the plaintiff, but it was built and maintained by the company.
    The court below, Dean, P. J., charged,,inter alia, as follows:—
    “ If, however, the weight of the evidence should satisfy you that the injury sustained by the plaintiff was not the result of a negligent construction of the crossing, then you will turn your attention to the other question in the case: [Was the plaintiff injured, as averred in the second branch of the plaintiff’s case, by reason of the swift, reckless and negligent running of their cars up to and upon this crossing, in the street of a populous town, this plaintiff being, as she had a right to be, upon the crossing for the purpose of going over it at that time ?]

      “ In considering and determining their respective rights, the circumstances surrounding them at the time must be considered; the populousness of the neighborhood at that particular place; the approaches to the crossing; the distance at which the crossing and those upon it can be seen by those in charge of or running trains, and all the circumstances calculated to throw light upon the conduct of the defendant’s servants, and to show whether they acted as prudent men should act — with that ordinary care which men under such circumstances should be expected to use.
    “ What is want of ordinary care, depends upon the circumstances of' this particular case. [What would be ordinary care in running a train of cars through a farm, might be gross recklessness in running the same train of cars through the streets of ra town, or over a crossing, or into a station.] The circumstances in a particular case must always be considered by the jury in determining whether at a particular moment and place there was ordinary care, or the want of it.
    “ The Supreme Court, in one of the late cases, says, in reference to the degree of care which is to be exercised under such circumstances, and which is required under such circumstances: ‘ The degree of care required of the servants of the company in such a case is in some measure dependent upon the capacity of the injured party. If an adult should place himself on the railroad, where he has no right to be, but when the company is entitled to a clear track and the benefit of the presumption that it will not be obstructed, and he should be run down, the company would be liable only for wilful injury,’ that is, for wilfully running the cars over him, £ or for gross or wanton negligence. But, if a child of tender years should do so, and suffer injury, the company would be liable for want of ordinary care.’ While in the case of an adult they would be liable only for wilfully running over the man, or for gross negligence amounting to wantonness and recklessness in running over the adult, yet in the case of the child they are liable for want of ordinary care. ‘ The principle may be illustrated thus: If the engineer saw the adult in time to stop his train, but the train being in full view, and nothing to indicate to him a want of consciousness of its approach, he would not be bound to stop his train. Having the right to a clear track, he would be entitled to the presumption that the trespasser would remove from it in time to avoid the danger ; or, if he thought the person did not notice the approaching train, it would be sufficient to whistle to attract his attention without stopping. But, if, instead of the adult, it were a little child upon the track, it would be the duty of the engineer to stop his train upon seeing it. The change of circumstances from the possession of capacity in the trespasser to avoid the danger, to a want of it, would create a corresponding change of duty in the engineer. In the former case, the adult concurring in the negligence causing the disaster, is without remedy, in the latter, the child, not concurring from a want of capacity, the want of ordinary care in the engineer would create liability. But, if the train were upon the child before it could be seen, or if it suddenly and unexpectedly threw itself in the way of the engine, the engineer being incapable of exercising the measure of ordinary care to save it, the child would be without remedy, for the company’s use of its track is lawful, and the presence of the child upon the track is unlawful.’
    £< [The Supreme Court say — and the difference in the facts between that case and this would not materially affect the ruling— £ Where a child is upon the track, they are bound to stop, upon seeing it, because they have no right to assume that the child knows its danger, or has capacity to apprehend danger, or has the capacity to flee from it as in the case of an adult.’] Of course, if they had stopped it before it reached the crossing the child would not have been injured. In failing to stop the train before it reached the child, did they fail to exercise that ordinary care which, under the circumstances, a man of ordinary prudence and caution, conducting a business of that kind at that particular place and surrounded by the particular circumstances, should have exercised ?
    “ [It was the duty of those on the train, on seeing the child or children of this age upon a crossing, to stop the train until the children either ran off, or until those in charge of the train got off and removed them. Children of such tender years are not to be expected to have the capacity to apprehend or avoid danger, and it was the duty of those on the train to get off and remove them, if they could get them off the crossing in no other way. It occurs to us, however that, even if this be a correct view of the evidence, as taken by defendant, it does not follow from the facts necessarily that there was an absence of negligence on the part of defendant. Was not the failure of the child to get from danger owing to its want of care in avoiding the crevice between the plank and the rail; or was not its foot caught and there held because of its physical incapacity to remove it ? Are not these facts for your consideration, assuming them to be facts ? Would not an adult have avoided sticking his foot between the plank and the rail, or, having got it there, would he not, with the exercise of more physical effort, have extricated it instantly, in view of the approaching danger, even if he had left his boot in the crevice, or to some extent injured his foot ? If so, if the child either had not the capacity to avoid the dangerous crevice, or if it had not the physical capacity to extricate it after it was caught, then it comes back to the same question as in the case where the child had been run over without having attempted to escape.]
    “ The defendant’s servants were bound to exercise such care as they could have exercised under the circumstances, and if they failed to do what prudent men ought to have done under the circumstances, they are liable for the result of their negligence to this plaintiff in the amount of damages sustained by her.
    “ The plaintiff alleges that there was in this case what amounted to gross negligence. The plaintiff alleges that they were running at a high rate of speed through a populous town. You will remember the testimony from which plaintiff claims this fact to be made out. As has been said, the successful management of a railroad requires that the trains shall run at a high rate of speed; but then care requires that they shall not run at a high rate of speed through the streets of a town.”
    The defendant offered the following points, both of which were refused:—
    2. Eitzharris, the fireman, having, when the car was within about 163 feet of the child, warned her by hallooing at her to get off the track, and she having started to move off, he was entitled to the presumption that she would get away from the track in time to avoid the danger, and under these circumstances there was no duty imposed upon the men in charge of the train to make an effort to stop, and the failure to do so was not negligence; they were not negligent in failing to use precaution when they had no reason to apprehend injury to the child.
    3. The child’s foot getting fast was an unforeseen contingency which the defendants could not be expected to anticipate or guard against, and if the jury believe the child would have got out of the way of the train but for that accident, the defendants are not responsible for the injury.
    The jury found a verdict for the plaintiff. After judgment thereon the defendant below took this writ of error, assigning for error the parts of the charge in brackets above, and the answer to the above points.

      I). J. Neff., for plaintiff in error,
    cited Telfer v. Northern Railroad Co., 1 Vroom 188; Bannon v. B. & O. Railroad Co., 24 Md. 108; s. c. 5 Am. Law Reg. 477; P. & R. Railroad Co. v. Spearen, 11 Wright 300; C., B. & Q. Railroad Co. v. Stumps, 55 Ill. 367; Singleton v. Eastern Counties Railway Co., 7 C. B. N. S. 287; Wright v. Mald. & Mel. Railroad Co., 4 Allen 283; Glassey v. Hestonville Pass. Railroad Co., 7 P. F. Smith 172; Pitts., All. & Manch. Railroad Co. v. Pearson, 22 Id. 169.

      8. 8. Blair, for defendant in error.
   Chief Justice Agnew

delivered the opinion of the court, October 10th 1876.

The charge of the judge in this case is. so generally fair and accurate we feel some difficulty in coming to a conclusion which results in a reversal. But by inadvertence, or possibly a slight confusion, he seems to have fallen into an error, which excluded the defence from its only probable ground of success. We concur in the view of the judge, that the foot of the plaintiff must have been caught in the space left for the 'flange of the car-wheels, between the rail and the inner plank of the crossing; and therefore that the injury arose from no defect in the construction of the crossing. The plaintiff’s case evidently depended on the second branch of alleged negligence, to wit: in running the train at an immoderate rate of speed in disregard of the place and the circumstances of the occurrence. The judge rightly charged that negligence was a question for the jury, to be decided upon the circumstances in evidence. His error was a substantial denial of this principle in a subsequent part of the charge. The witnesses for the defendants testified that the speed of the train was not too rapid, but only at the rate of about five or six miles an hour; that the train was fully under control, the hands in their proper places; that the train could be stopped in a space less than its own length, and in fact was stopped before the engine, at the rear end of the train, had reached the crossing; that when the children were seen on the crossing the flagman on the front car hallooed to them, and they started to run off, the boy running straight across the track, and the girl obliquely; that, to every appearance, they knew their danger and were likely to avoid it, the boy escaping entirely, and the girl (the plaintiff) reaching the rail and apparently passing off. In a moment or two the flagman saw that the child was fast, and heard her hallooing, and gave the signal for stopping immediately to the engineer, who reversed his engine, and whistled down-brakes. At this time the front car ivas between one hundred and one hundred and twenty feet from the crossing. Mrs. Morgan, the mother of the child, hearing the cries of the child and of her neighbor, Mrs. Meinthal, ran a distance of sixty feet, and Mrs. Meinthal a distance of one hundred feet, to the child, and made three or four attempts to extricate the foot before the cars reached the crossing, and the mother then held her body out from the track while the wheel pushed the foot out, leaving the shoe in the crevice. The wheels were sliding under the influence of the brake, otherwise, if turning, all the evidence shows that the foot would have been cut off. These facts are also strong evidence of the slow speed of the train, Mrs. Meinthal having run nearly as far as the train had to go, when the signal for down-brakes was given. Under these circumstances,.the defendants contended that no duty lay upon those having charge of the train to come to a full stop until it was discovered that the little girl’s foot was caught, or for some reason she could not escape, as appearances had indicated she would; and then, that everything possible was done to avoid the injury. The weight of this argument was felt by the judge, who said: “To some extent, in defendant’s view of the facts, the reason for imposing upon those in charge of the train a different course of conduct than when an adult is on the track, seems to fail.” He had stated the duty as to an adult in these words: “ If the engineer saw the adult in time to stop his train, but the train being-in full view, and nothing to indicate to him a want of consciousness of its approach, he would not be bound to stop his train. Having the right to a clear track, he would be entitled to the presumption that the trespasser would remove from it in time to avoid the danger; or, if he thought the person did not notice the approaching train, it would be sufficient to whistle to attract his attention, without stopping.” But the judge, referring to the view above stated, added, “that, even if this be a correct view of the evidence as taken by the defendant, it does not follow necessarily that there was an absence of negligence on part of the defendant.” He then puts these questions: “Was not the failure of the child to get from danger owing to its want of care in avoiding the crevice between the plank and the rail ? Or was not its foot caught and held there, because of its physical incapacity to remove it?” Referring these questions to the jury, he then comes to the instruction, which it seems to us is faulty: “ If so (he says), if the child either had not the capacity to avoid the dangerous crevice, or if it had not the physical capacity to extricate it, after it was caught, then it comes back to the same question as in the case where the child had been run over without having attempted to escape.” That case was stated in this precedent instruction: “ Where a child is upon the track, they are bound to stop on seeing it, because they have no right to assume that the child knows its danger, or has the capacity to apprehend danger, or to flee from it as in cáse of an adult.” The case, as thus put by the judge, was therefore just as if those in charge of the train had not been misled by the attempt of the children to escape, and the actual escape of one of them. Its effect was wholly to exclude the defence, notwithstanding the jury was bound, under the evidence, to find that there was every reason to believe that the children would be off the crossing before the train would reach it, and that the girl’s escape was frustrated by a mere accident; and that everything possible had been done to avert the injury as soon as her true situation was discovered, and that in all else, speed, management and control of the train, there was no fault on the part of the company. The quotations given from the charge were taken from the case of Philadelphia & Reading Railroad Co. v. Spearen, 11 Wright 300. But that case states no inexorable rule, that a train must stop under all circumstances, when a child is seen upon the track; on the contrary, if its appearance there is so sudden and unexpected that the engineer is incapable of exercising the necessary measure of care to save it, the child is without remedy. In principle, this is not different from a case where a sudden change of circumstances causes an accident to a child, where immediately before there was no reason to believe an injury wofild ensue. The instruction of the learned judge cannot be sustained unless we hold that in no case and under no circumstances will a railroad company be excused in the rightful exercise of its right of passage on its own track, unless it stops its train whenever a child is seen upon the track. A principle so general would include even, the case of a child led by the hand by its adult nurse. The jury then would not determine the question of negligence, but the law would ’determine it for them. But clearly it is for the jury to say whether it is negligence not to stop, even in the case of a child; for the question depends on a proper view of all the facts. The case did not go to the jury on the question of reasonable speed, under the circumstances of time, place, person, &c., but under this instruction the jury was bound to find negligence in the company, because the train was not stopped before it reached the crossing.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Swift et ux. versus The Allegheny Building and Loan Association.
    1. A scire facias on a mortgage takes the place of a declaration and should show on its face an immediate cause of action.
    2. S. executed a mortgage to a building association to secure a bond for $600, conditioned for the payment of interest on a loan, and of monthly dues upon shares of stock in the association. In a scire facias on the mortgage the only averment of a breach of the condition of the bond was that “ the sum of $600 with the interest thereof as yet remains unpaid.” Held (reversing the judgment of the court below), that this averment was insufficient to ground a judgment for want of an affidavit of defence upon.
    May 18th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Blair county: Of May Term 1876, No. 62.
    This was a scire facias on a mortgage given by Margaret Swift of her own real estate to the Allegheny Building and Loan Association, .to secure her husband’s bond to the association for $600. After appearance by the defendants, judgment was entered for want of an affidavit of defence, and damages were assessed at $600. The condition of the bond and the averment of a breach thereof in the scire facias appear in the opinion of the court. The defendants took this writ of error, on the ground that the court erred in entering judgment for want of an affidavit of defence, and in entering judgment for the amount therein set forth.
    /S'. /S'. Blair, for plaintiffs in error.

      Aeff $ Clarke and Alexander Herr, for defendant in error.
   Mr. Justice Sharswood

delivered the opinion of the court, “May 29th 1876.

The scire facias recites that the mortgage was to secure a bond conditioned for the payment of $600, “with interest thereon payable on the third Friday of each and every month thereafter, together with the monthly dues on three shares of the capital stock of the association aforesaid, now owned by the said William Swift, and such fines as might be imposed thereon under the constitution and by-laws of the association aforesaid, with a proviso that if. at any time default be made, and six consecutive months are suffered to .elapse without paying up all instalments of interest and monthly dues on said stock, and all fines for non-payment thereof as aforesaid, or any or either of them, then and in such case the credit given on said principal sum shall cease and determine, and the same with the interest, the monthly dues and the fines for the non-payment thereof, shall be taken as due and payable and may be recovered forthwith.” The only averment of a breach of this condition is, that “ the said sum of $600, with the interest thereof, as yet remains unpaid.” This averment is the usual one in the case of an ordinary bond with a condition for the payment of money. It is inapplicable to the case of a special condition such as that contained in the bond as recited in this scire facias, and it is insufficient to ground a judgment for want of an affidavit of defence upon. The scire facias takes the place of a declaration, and it should show on its face an immediate cause of action. It does not allege a failure to pay any instalment, and it cannot be inferred that there has been a failure to pay such instalments for six consecutive months. How then does it appear that the principal sum has become immediately recoverable by action ? This it was incumbent on the plaintiffs below to aver and set forth in the scire facias with reasonable certainty. This the averment contained in this scire facias does not do, and the judgment below was therefore erroneous.

Judgment reversed and procedendo awarded.


author: Mr. Justice Woodward

text:
    Lloyd’s Estate. Copely’s Appeals.
    1. An auditor proceeded to hear and decide upon exceptions in the absence of the exceptants and their counsel, and with notice from the latter by telegraph that owing to a railway detention he would be unable to be present, and when applied to for a rehearing, proof of the cause of absence having been furnished, summarily refused and the court confirmed his report: Held, that this action of the auditor was unusually peremptory, and as the actual facts could only be known by thorough investigation and none had been had, the decree of the court is reversed.
    2. Where the accounts of an executor showed that he retained uninvested in his possession and subject to his control for a period of five years, large sums of money, among which were the proceeds of §23,000 United States bonds which he had converted into cash, and the only reason assigned for the retention of these large amounts was the contingency of a recovery in a suit against the estate, the judgment and costs in which only aggregated §13,000: Held, that the conversion of the United States bonds was unjustifiable and that the executor was chargeable with interest on the amounts retained in his hands.
    3. Held, further, that where, as in this case, by the accounts of the executor, it appeared the assets of an estate were collected without difficulty or delay, and their distribution was attended with no controversy, and there was no proof of exceptional or extraordinary services, five per cent, commissions upon the whole principal of the estate were too large.
    May 18th and 19th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Blair county: Of May Term 1876, Nos. 71 and 72.
    These were appeals by John Copely and ten other residuary legatees under the will of Hannah Lloyd, deceased, from decrees of the Orphans’ Court confirming the reports of the auditor appointed to hear exceptions to the account of W. H. Gardner, administrator d. b. n. g. t. a. of Gilbert L. Lloyd, deceased, and the account of said W. H. Gardner as executor of Hannah Lloyd, deceased, and to make distribution.
    Gilbert L. Lloyd died in 1866, leaving a will, in which he devised all his real and personal estate to his wife, Hannah Lloyd, and made her his executrix.
    ■ Hannah Lloyd died on the 6th of January 1870, leaving a will, wherein, after devising her real estate, she bequeathed all her personal estate in trust to her executor to pay certain specific legacies contained in the will, and to distribute the residue among thirteen persons named therein, eleven of whom were the exceptants below. She appointed W. H. Gardner her executor and trustee, to whom, the will having been proved on the 10th of January 1870, letters testamentary were granted on the day following.
    At the time of the death of Gilbert L. Lloyd, R. C. Christy and T. McNamara had judgments against him amounting to $1500, and Thomas Earrell had a claim against him of $5000, which was disputed and had been in litigation for several years.
    Upon the death of Hannah, Lloyd, W. H. Gardner was appointed administrator d. b. n. c. t a. of Gilbert L. Lloyd to dispose of these claims upon his estate.
    Gardner filed his accounts in July 1875, and in his account as administrator de bonis non, it appeared that he settled the judgments of Christy and McNamara together with the Thomas Earrell judgment, the latter with interest and costs amounting to $11,325.75. These with the expenses attending the litigation of the Earrell claim amounted to $13,978.28.
    His account as executor of the will of Hannah Lloyd, showed that between the 12th of February 1870, and the 1st of August 1871, assets, consisting of government bonds, mortgages, judgments, and interest-bearing notes, to the amount of $67,036.18, came into his hands: all of which were at once converted into cash, $23,100 in United States 5-20 bonds being reduced to money very soon after the will of Hannah Lloyd was proved, and other securities to a large amount shortly thereafter. His disbursements to defray the expenses of the administration, and the litigation on account of the estate of Gilbert L. Lloyd, amounted, during this time, to about $5500, leaving the balance of the $67,036.18 in his hands until June 18th 1875, when he claimed credits for the $13,978.28 paid on account of the Gilbert L. Lloyd estate, and $43,710, paid to legatees as per his account filed as trustee.
    It appeared, however, that the accountant, from time to time, had advanced to the special legatees different sums of money on account of their legacies, but according to a statement prepared by the appellants retained in his hands continually a monthly balance averaging about $18,000 for a period of sixty-four months and an average yearly balance of about $16,000.
    In his account the executor made a charge for $3351.80, commissions at the rate of five per cent, upon the entire amount of the estate.
    Eleven of the residuary legatees of Hannah Lloyd filed exceptions to these accounts, claiming that the executor should have charged himself with interest on the balances retained in his hands from time to time, and that his charges for his services as executor were excessive. The accountant claimed that the retention of these large amounts was to meet the exigencies of the Farrell case, and that his commissions were reasonable in consideration of the time and labor expended.
    The court appointed an auditor to hear the exceptions and make distribution, and on the 14th of September, the day fixed for a hearing by the auditor, the accountant with his counsel and the exceptants with their counsel appeared and at the request of the accountant the hearing was adjourned until September 25th 1875.
    One of the counsel of appellants resided at Altoona, seven miles from Hollidaysburg, where the hearing was held, and the other at Tyrone, twenty-one miles distant.
    Upon the day fixed for the second hearing by the auditor, the counsel at Altoona was unexpectedly called away and could not attend. The counsel at Tyrone was unable to be present owing to a failure in the railroad connections, and telegraphed on learning of the detention, asking for a continuance and informing the auditor of the inability of either counsel to be present.
    The auditor, however, notwithstanding the absence of exceptants and their counsel, proceeded to hear the statement of the accountant and made up his reports.
    Before he had filed his reports the counsel for the exceptants furnished proof of the cause of their absence and asked for a rehearing, which was refused by the auditor, on the ground that the audit had adjourned sine die and he had no authority to grant a rehearing.
    He then overruled the exceptions and filed his reports, October 27th 1875, making distribution of the funds.
    The account of the administrator do bonis non was the subject of exception only in so far as it was connected with the alleged errors in the settlement of the account of the executor, and the exceptions taken to the latter therefore include all the questions raised. ,
    Copely and the rest of the residuary legatees filed exceptions to the report, alleging (1) that the auditor erred in not charging the executor with interest on the balances ; (2) in allowing the executors’s commissions at the rate of five per cent.; (3) in refusing to give the counsel for exceptants a hearing, said counsel having shown the auditor their inability to attend.
    The court, which consisted of the associate judges, Dean, P. J., having withdrawn from the bench because of his having been counsel for the accountant, overruled these exceptions and confirmed the report absolutely.
    The exceptants appealed and assigned for error this decree of the court.

      T>. J. Neff and A. A. Stevens, for appellants. —
    The auditor showed unusual and unnecessary haste in closing the case in the absence of counsel; no vexatious delay was intended, and exceptants ought not to be prejudiced by an unavoidable accident. If executors in the first year of their administration convert a funded estate into cash to an amount more than sufficient to pay all debts and before legacies become. payable, they will be charged with interest on the money in favor of residuary legatees: Verner’s Estate, 6 Watts 250. Executors cannot suffer large balances to lie in their hands totally unproductive for long periods of time: Bruner’s Appeal, 7 P. F. Smith 46; Yundt’s Appeal, 1 Harris 575; Light’s Appeal, 12 Id. 181; Ake’s Appeal, 9 Id. 320; Biles’s Appeal, 12 Id. 335 ; Rocke v. Hart, 11 Vesey 58; Donnelly's Estate, 12 Casey 175; Parker’s Estate, 14 P. F. Smith 311; Hughes’s Minor’s Appeal, 3 Id. 500 ; Aston’s Estate, 5 Whart. 242; Lukens’s Appeal, 11 Wright 358; 3 Redf. on Wills 401; Schieffelin v. Stewart, 1 Johns. Ch. 620; King v. Talbot, 40 N. Y. 76; Smith v. Kennard, 38 Ala. 695. The labor of the accountant in settling the estate was trifling. He had no trouble in marshalling the assets, consisting as they did of -United States bonds, corporation bonds, mortgages] notes and other securities readily collectable. His commissions were too large; Whelen’s Appeal, 20 P. F. Smith 411; Stevenson’s Estate, 4 Whart. 104 ; Pusey v. Clemson, 9 S. & R. 204 ; Walker’s Estate, 9 Id. 223; Snyder’s Appeal, 4 P. F. Smith 68.

      Samuel S. Blair and Aug. S. Landis, for appellee. —
    An administrator may retain a reasonable amount of the estate in his hands to meet expenses and pay claims in suit against the estate without being liable for interest on such amount: Davis’s Appeal, 11 Harris 206 ; Parker’s Estate, 14 P. F. Smith 310; Heckert’s Appeal, 12 Harris 482. The money retained here was to meet the contingencies of a recovery in the Earrell claim. Common opinion and understanding have fixed upon five per cent, as a reasonable allowance for the services of an executor: Pusey v. Clemson, 9 S. & R. 209 ; Askew v. Odenheimer, Bald. 386 ; Skinner’s Estate, 4 Phila. 189 ; Gable’s Appeal, 12 Casey 395 ; Whelen’s Estate, 20 P. F. Smith 410 ; Eshleman’s Appeal, 24 Id. 48.
   Mr. Justice Woodward

delivered the opinion of the court, October 16th 1876.

These appeals are from decrees of the Orphans’ Court confirming the report of an auditor upon the account of W. H. Gardner, administrator de bonis non eum testamento annexo of Gilbert L. Lloyd, deceased, and confirming the report of the same auditor upon the account of the same accountant as executor of the last will and testament of Hannah Lloyd, deceased. A third account of the trusts created by Mrs. Lloyd’s will has been brought up by the-record. That, however, contained the distribution of the fund charged to the accountant as executor.' The particular items in the account of the administrator de bonis non were made subjects of exception only as they resulted from and were connected with the errors alleged to have been committed in the adjustment of the executor’s account. The disposition of the executor’s account, therefore, will decide all the questions raised.

The decision by the auditor of the exceptions referred to him, in the absence of the counsel of the legatees of Mrs. Lloyd, was unusually prompt, and the refusal to open the case on their application for a rehearing was unusually peremptory. This summary action is to be regretted, for its effect must be to delay the determination of this controversy. With no means of ascertaining the true merits of the questions at issue beyond the facts which the accounts themselves disclose, there would be hazard of injustice to the appellee if this court should undertake to make a final decree. The conclusions of the auditor are not warranted by any evidence contained in his report. Whether those conclusions would be sustained by the actual facts attending the settlement of the estates could only be known as the result of thorough investigation, and no investigation has been had.

Mrs. Lloyd’s will was proved on the 10th of January 1870. On the 12th of February 1870, the executor converted United States bonds into-cash to the amount of $26,187.41. He charged himself the same day with a cash balance in the First National Bank of $1168.52, and with the balance of a judgment of Patterson v. Irwine, and the proceeds of a judgment of Wightman v. Irwine, amounting together to $3128.03. He received from H. L. Patterson $5000 on the 26th of February, $2500 on the 6th of March, and $6000 on the 16th of May 1870. Various sums were paid to him up to the 1st of August 1871, including such items as Hollidaysburg water bonds $2050, on the 23d of August 1870, Juniata bonds $3325, on the 22d of September 1870, and Hollidaysburg seminary mortgage $10,857.50, on the 25th of March 1871. As early as the 1st of August 1871, the entire assets of the estate of Mrs. Lloyd, amounting to $67,036.18, passed into his hands in cash. And in his hands the whole fund remained until June 1875, except $3448.26, paid out in' the course of administration, and $2077.95 shown by the account on the estate of Gilbert L. Lloyd to have been expended in the progress of a contested litigation. On the 18th and 21st of June 1875 $11,900.23 were paid to satisfy the Farrell judgment, for costs and counsel fees connected with that judgment, and for fees to the register. The payments to the legatees, amounting to $43,710, appear to have been made on the 21st of June 1875.

It is manifest from this statement that a very large sum of money remained in the possession and under the control of the appellee for a period exceeding five years. Nothing shown as to the circumstances of the estate Avarranted the sale of the United States bonds in 1870. It is not enough to say that the time when payment of the Earrell claim would be demanded was indefinite, and that, as administrator do bonis non of Gilbert L. Lloyd’s estate, the appellee could be suddenly called on to meet that. In actual fact, the demand upon him was not made until June 1875. If earlier payment had been required, $26,000 of government securities, immediately and constantly available, were ample resources to satisfy a claim of $13,000 ; and the possession of those securities, Avith the means Avithin reach from other sources, afforded perfect protection against any requisition to which the appellee could possibly have been made subject. The other assets were mainly in. large sums and were promptly paid. It is not conceivable that a business man of average sagacity, owning such an estate in his OAvn right, under the circumstances disclosed, would have so managed it as to render it for five years utterly unproductive. The tabular statement appended to the paper-book of the appellants exhibits an average balance of $18,229.23 in the hands of the appellee throughout a period of sixty-four months, the interest on which would amount to $5843.35. Even a larger sum would seem indicated by the items in the several accounts. But the statement refers to a “schedule of monthly payments made,” which may have included advances on account of legacies. As the case stands upon the facts, it is one to require a surcharge of interest against the appellee. If this court Avere to undertake to make it, however, under the lights afforded them, a possible wrong might be inflicted which it would be difficult and perhaps impossible to cure. In order to insure a fair hearing of the equities of the parties, the record must go back for a fresh reference of the original exceptions to an auditor, an investigation by him, and a decree in view of the neAV inquiry by the Orphans’ Court. Such a decree made up under the eye of a law-judge Avould seem advisable. The submission of such questions as this case presents to associate judges is always a hazardous experiment.

The remaining question arises out of the executor’s claim for commissions. He has charged five per cent, on the whole principal of the estate. A trustee should be justly compensated for services, responsibility and risk. The character of the trust he has administered, the nature of the duties he has performed, the extent and value of the labor he has bestowed, and the kind of securities in which he has found the funds of the estate to be invested when it came to liis hands, are all elements to be considered in adjusting the amount of his allowance. Of the $67,036.18 to which this estate amounted, $53,047.94 were collected in only seven different sums, and $42,190.44, covering six of these sums, were received between the 12th of February and the 22d of September 1870. No facts have appeared to show that even the usual labor of an executor has been performed by the appellee. The credits taken as executor seem to have been for ordinary disbursements, and those taken as' administrator do bonis non were for items connected with the claims of Farrell, Christy and McNamara alone. At least reasonable fees were paid to counsel, for $595 were allowed to the appellee as executor, aside from the account of Mr. Blair against the testatrix of $539.41, and $520 were allowed to him as administrator de bonis non. As has been said, the conversion in 1870 of all the United States bonds into cash was unjustifiable. All the exigencies of the estate could have been met by retaining them as the testatrix had left them until the use of their proceeds was required. The principal sum in dispute in the Farrell case did not exceed $5000. The final judgment was entered for $4215.23 besides costs. To the extent of over $40,000, the duties of administration appear to have been little more than clerical. Indeed, the sums disbursed to the legatees in the trust account were $43,710. Collected without difficulty or delay as the assets were, with no doubt or controversy attending the distribution, and with no proof of exceptional or even of ordinary services,.the claim for compensation was too large. But upon this question, as well as upon that relating to the surcharge of interest, it is feared that if this court were to act finally now, rights of the appellee might be destroyed which he would be able to establish by satisfactory proof, It was said at the argument on his behalf that he had many suits to look after; that he procured a large amount of new testimony in the Farrell case; and that he was compelled to make frequent journeys to Cambria county to adjust items of business there in which Mr. Lloyd had been concerned. It is true that details of this kind ought to have appeared on the face of the accounts, or in evidence before the auditor ; and it is true also that the entire absence from the record of all illustrative and explanatory facts was the result of the summary and hurried action of the auditor and of the ill-advised and persistent opposition that was made to a rehearing on the application of the counsel for the appellants. But the truth still remains that a, decision in view of the existing conditions of the case would be made in ignorance of possibly justifying circumstances which the appellee would have had the right in a thorough investigation to prove, and might produce in a different direction consequences as mischievous as those which flowed from the mistaken haste of the auditor and the Orphans’ Court.

The decree is reversed, the report of the auditor is set aside, and a procedendo is awarded.


author: Mr. Justice Paxson

text:
    Fessler versus Hickernell and Bomberger. Fessler’s Appeal. Bomberger’s Appeal.
    1. A partner who has paid a firm debt is not entitled to subrogation against Ms eo-partner until an account has been settled between them.
    2. The equitable doctrine of subrogation only applies when both funds are i in the hands of a common debtor of both creditors.
    8. Section 9 of the Act of 22d April 1856 does not apply to any case in which the amount which the substituted creditor has a right to collect from the adverse party under the judgment has not been ascertained.
    4. II. and B. were partners and insolvent. F. held a judgment against the firm and also a joint bond of the firm of like amount, and levied an execution under his judgment upon the personal and real estate of H.; whereupon L., a junior mortgage creditor of H., tendered F. the amount of his debt and costs, and demanded to have the judgment assigned to himself: Held (reversing the court below), that section 9 of the Act of 22d April 1856 did not apply to such a case, and that L. had no equitable right to such an assignment. •
    May 20tb 1876.
    Before Agnew, C. <T., Sharswood,. Mercur,, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeals from a decree of the Court of Common Pleas of Lebanon county: Of May Term 1876, Nos. 92 and 93.
    These were appeals from a decree subrogating Jacob Lauser, a mortgage creditor of Hickernell, as plaintiff in the case of Eessler v. Hickernell and Bomberger, upon the payment to Eessler of the amount of Ms judgment and costs in that-case.
    The judgment in that case was entered by Eessler on December 21st 1874, upon a bond with warrant of attorney against Hickernell and Bomberger; in November 1875, execution was issued thereon and a levy was made upon certain real estate belonging to Hickernell. Plickernell and La-user thereupon presented a petition to the court below, setting forth these facts and also that Lauser held two mortgages upon the land of Hickernell, the lien of which was immediately subsequent to Eessler’s judgment; the petition prayed for a rule on Eessler to show cause why Eessler should not receive from Lauser the amount due on his judgment and costs, stay the execution thereon, mark the judgment to the use of Lauser and proceed against the lands of Bomberger for part of his debt.
    The petition further showed that the lien of Lauser’s mortgages would be divested by the sale under the execution, and Lauser, on account of the financial depression, would be obliged to pay more for the land than it was worth at that time in order to protect him-, self, and that Hickernell’s property would be sacrificed. Eessler filed an answer to it, setting forth that he held another bond of Hickernell and Bomberger for the same amount, which was still unpaid; that he was willing to look to Bomberger alone for the payment of this latter bond if Hiekernell would pay the amount due upon the judgment, and that he would be willing to mark the judgment to Lauser’s use upon payment thereof, but only upon condition that before doing so he should be allowed to release Bomberger, who was his son-in-law, from any liability thereupon ; the answer denied the power of the court to make the order prayed for by Lauser and Hiekernell.
    Bomberger also filed an answer in which he set forth that he and Hiekernell had formerly been partners, that the accounts of the firm were still unsettled and that he believed that Hiekernell would be largely indebted to him upon a settlement; that Hiekernell was insolvent and if the judgment in question was marked to the use of Lauser and not collected from the sale of Hickernell’s real estate, he, Bomberger, would be obliged to pay the same, as well as the amount of the other bond to Fessler.
    Hiekernell filed replications to the answers of Fessler and Bomberger, denying that a settlement of his partnership affairs with Bomberger would show a balance due Bomberger, and that Lauser was endeavoring to put the burden of the judgment upon Bomberger alone, but, on the contrary, averring that Fessler and Bomberger were colluding to make him pay more than his share of the judgment.
    The court below (Henderson, A. L. J.) held that the case came within the Act of 22d April 1856, sect. 9, and ordered that “ Fessler upon the payment of the debt, interest and costs of said judgment by Lauser, do assign the same to Lauser without recourse, to the end that he may receive and collect from the other defendant, Bomberger, the amount to which he Avould be entitled by subrogation or by way of contribution. And, if the said plaintiff should refuse to accept the same, the execution and all proceedings thereon should be stayed.”
    Section 9 of the Act of the 22d April 1856, is as follows:—

      “ Whensoever the real estate of several persons shall be subject to the lien of any judgment to which they should by law or equity contribute, or to which one should have subrogation against another or others, it shall be lawful for any one having right to have contribution or subrogation, in case of payment, upon suggestion by affidavit and proof of the facts necessary to establish such right, to obtain a rule on the plaintiff, to show cause why he should not levy upon and make sale of the real estate liable to execution, for the payment of said judgment in .the proportion or in the succession in which the properties of thb'.several owners shall, in law or equity, be liable to contribute towards- the discharge of the common encumbrance, othenoise upon the payment of such judgment to assign the same for such uses as the court may direct; and the court shall have power to direct to what uses the said judgment shall be assigned, and when assigned, direct all executions thereupon, so as to subserve the rights and equities of all parties whose real estate shall be liable thereto; and if the plaintiff shall refuse to accept his debt and make such assignment of his judgment, the executions thereupon in the hands of the plaintiff, shall be so controlled and directed by the court as to subserve said rights and equities.”
    Fessler and Bomberger appealed from this decree, and assigned "for error, (U that the court had not dismissed the petition of Hickernell and Lauser, and (2) the above decree.

      •I. Funic, for appellants.
    Lauser has no rights per se; he must work out his advantage, if any, through Hickernell: Dorr v. Shaw, 4 Johns. Ch. 18; Eberhardt’s Appeal, 8 W. & S. 331; Ex parte Kendal, 17 Ves. 520. The rule as to subrogation exists only where both funds are in the hands of a common debtor of both creditors: Lloyd v. Galbraith, 8 Casey 108.
    So long as the partnership accounts are unsettled, equity will not order subrogation in favor of either: Sterling v. Brightbill, 5 Watts 233; Singizer’s Appeal, 4 Casey 526.
    Even aside from the partnership accounts, Hickernell has no equity until he has paid half of the joint indebtedness to Fessler.
    There can be no subrogation in any event till Fessler is paid in full on both claims: Kyner v. Kyner, 6 Watts 227; Bank of Penna. v. Potius, 10 Id. 152; Cottsell’s Appeal, 11 Harris 294; Hoover v. Epler, 7 P. F. Smith 524.

      O. P. Miller, for appellees. —
    This case falls within the remedy provided by sect. 9 of Act of 22d April 1856; Roddy’s Appeal, 22 P. F. Smith 99.
    Fessler’s judgment was joint and a lien upon Bomberger’s land as well as IlickerneH’s, while Lauser had a lien only upon Hiclcernell’s land; Lauser, therefore, upon paying Fessler, is entitled to subrogation to his rights: Mosier’s Appeal, 6 P. F. Smith 76. The real estate of Hickernell and Bomberger was held by them in severalty ; therefore no equities arising out of their partnership can be considered.
   Mr. Justice Paxson

delivered the opinion of the court, May 29th 1876.

The radical error of the decree made by the court below consists in the fact that it attempts to work out the equities between Bomberger and his partner Hickernell in a summary manner. Where one partner has paid a partnership debt, he is not entitled to subrogation against his copartner until an account has been settled between them. In what other way can it be ascertained which is the creditor and which the debtor partner ? This difficulty confronts us instantly in any attempt to enforce the order made in this case. How can it be ascertained upon the execution how much of the debt Bomberger ought to pay ? Clearly this cannot be done without a settlement of the partnership accounts. It may be that upon such settlement it will be found that Hickemell ought to pay the whole of the judgment. . In such case Lauser, the appellee, would be in no condition to claim subrogation for the purpose of having the judgment enforced against Bomberger. Lauser has no equity. His mortgage post-dates the judgment. He had notice of the latter when he loaned his money. Nor can he successfully invoke the principle that when a creditor has a lien on two funds in the hands of the same debtor, and another creditor has a lien only upon one of the funds, the first may be compelled in equity to levy his debt out of the fund to which the other cannot resort. This equitable rule has never prevailed except in cases where both funds were in the hands of the common debtor of both creditors. The equity of the the second creditor is precisely that of the debtor, and is worked out through the equity of the latter: Lloyd v. Galbraith, 8 Casey 108. Here Lauser is the creditor of Hickemell alone. Fessler is a creditor of Hickemell and Bomberger. Hickemell is the common debtor, and he has but one fund. Lauser has no equity, unless he can work it out through his debtor Hickemell. ' The latter can have no equity to throw the claim upon his partner until by a settlement of the partnership accounts he shows Bomberger to be in his debt.

The learned judge of the court below evidently based his decree upon the Act of 22d of April 1856 (Pamph. L. 534). We think it manifest from an examination of said act that it was not intended to apply to any case in which the amount the substituted creditor has a right to collect from the adverse party under the judgment has not been ascertained. This is the first step in subrogation.

The decree is reversed and the petition dismissed, with costs.


text:
    Sellers’s Estate. Soult’s Appeal.
    1. Axl appraisement confirmed by tbe court, is a matter of record possessing tbe effect of a judgment and open to no collateral review, but such a record is conclusive of the subject to which it relates, and of nothing else, and where, after an appraisement, the value of the goods was ascertained to be $48, and it was in evidence that a widow claimed $252, the residue of her $300, under the exemption law, out of a security belonging to her husband, but no note of her claim was made in the appraisement, the confirmation of the appraisement, while conclusive as to the goods, did not affect that residue.
    2. It is the valuation of chattels which cannot be calculated or counted, but which must be estimated by appraisers, the law requires the court to approve or set aside, but where the widow elects to take money or the proceeds of securities or stocks, and her demand is made in proper time, they may be claimed in the administrator’s account without appraisement.
    May 22d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward JJ. Williams, J., absent.

      Appeal from the Orphans’ Court of Mifflin county: Of May Term 1876, No. 87.
    This was the appeal of George W. Soult, administrator cum testamento annexo of George Sellers, deceased, from the decree of the Orphans’ Court confirming the report of the auditor on exceptions filed to the account of said administrator.
    George Sellers made his will on the 5th of April 1873, wherein were certain bequests to Elizabeth Gibboney, whom he afterwards married and thus revoked the will as to her. The residue of his estate, according to the provisions of the will, was to go to his grandchildren, the children of his son Edmund Patterson Sellers.
    The testator died on the 20th of January 1874, and George W. Soult was 'appointed administrator with the will annexed.
    On the 10th of November 1874 appraisers were appointed, who made an inventory and appraisement of the goods and chattels pf the deceased.
    The widow clainied under the $300 exemption law the specific articles bequeathed to her in the will, amounting in value to about $15, and the rest of the goods found on the premises, all of which, were accordingly valued and appraised to her, amounting in the aggregate to $48, which appraisement was filed of record in the Orphans’ Court, and presented to said court and confirmed in January 1875.
    At the August Term following the administrator settled his account in which was a credit of $252, paid the widow out of the proceeds of the note of William Johnson, to make up, as she claimed, the balance of the $300 due her under the exemption law.
    The guardian of the minor grandchildren of George Sellers excepted to this payment of $252 to the widow, on the ground that she was concluded by the appraisement and confirmation thereof by the court, and the court appointed an auditor to report on the exceptions.
    It appeared before the auditor that there was no note of the widow’s claim in the appraisement, but there was the following evidence that she made the claim at the time the appraisement was made.
    George W. Soult: The widow claimed her $300, and the balance over and above the appraisement out of the note of William Johnson. She claimed the $300 and we saw at once that the goods would not reach. She agreed to take them as far as they went at the appraisement, to save the expense of a sale, and the balance she claimed in money out of the William Johnson note.
    Cross-examined: I had not collected the money on the Johnson note at the time. No entry made in the appraisement as to the $252 because I did not think it was necessary.
    Amos Hoot, one of the appraisers, testified : On the day of the appraisement Mrs. Sellers, after the appraisement of the personal property, claimed the balance out of the Johnson note. I think, but I am not certain about it, that there was a Johnson note and a Brought note; and I think she said Soult might collect the Brought note, and she would take her balance out of the Johnson note.
    On cross-examination : I don’t know whether her claim for the Johnson note is entered on the appraisement or not; I can’t say positively whether Mrs. Sellers made a claim on the Johnson note or not, but I believe she did.
    The auditor in his report said: “ The widow can only have what the court awards, and having in this case awarded but $48, she can claim no more. Whether an appraisement of money or notes as good as money, may be dispensed with in certain cases or not, is not material; but appraised or not appraised, the widow’s claim must be set out, reported to the court and if approved, must be confirmed.”
    The auditor found that the payment of the administrator to the widow of the $252, was a mispayment and surcharged him with that sum.
    To this finding the administrator excepted.1
    The court below (Bucher, P. J.) dismissed the exception and confirmed the report of the auditor, in their opinion saying, “ The decree of the court confirming the appraisement is final and conclusive. The widow could not get behind it. If she made the claim and the administrator neglected to note it in the appraisement, her remedy would be against him personally : Compher v. Compher et al., 1 Casey 31. The administrator now seeks to avoid the decree and adjudication of the court, and thus allow the widow more than was adjudicated to her, and more than the record shows she demanded.
    “ But it is urged that here the widow did demand more than the appraisers set out to her, and that the administrator having paid her the demand injustice will be done him unless the credit is allowed. The only proof we have of this claim is in the evidence of the accountant, and it is in the teeth of the record; and whilst we do not say that he is unreliable as a witness, yet his mistakes or disregard of his duty is no reason why the rules of law should be set aside for his benefit. The vice in the whole matter is that this claim should have been included in the appraisement or reported to the court. It was not so done, and if a loss ensues thereby, it must be laid to the door of him who failed in the discharge of his duty.”
    The administrator appealed and assigned for error the decree of the court.

      D. W. Woods, for appellant. —
    When the widow claims her $300 either in money or evidences of debt, there is no necessity of appraisement. To appraise money is only to count it: Larrison’s Appeal, 12 Casey 130 ; Baldy’s Appeal, 4 Wright 328; Peterman’s Appeal, 26 P. F. Smith 116.

      Horace J. Culbertson, for appellees. —
    The confirmation of the appraisement is a judgment in rem of the Orphans’ Court: Runyan’s Appeal, 3 Casey 122. Its judgments are final and conclusive and cannot be assailed collaterally by parol: Gilmore v. Rodgers et al., 5 Wright 120 ; Merklein v. Trapnell et al., 10 Casey 46 ; Keech v. Rinehart, 10 Barr 242; Lockhart v. John, 7 Id. 137; Welty v. Ruffner, 9 Id. 225 ; Torrance v. Torrance, 3 P. F. Smith 510 ; Baskin’s Appeal, 2 Wright 68 ; Vandevort’s Appeal, 7 Id. 462.
   Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

Under the statutes passed to regulate the exemption rights of widows and children in the estates of decedents, some rules have been firmly settled. The demand for the exemption must be made, or the privilege will be held to be waived: Davis’s Appeal, 10 Casey 256. It must be made within a reasonable time: Burk v. Gleason, 10 Wright 297 ; before a sale of property: Neff’s Appeal, 9 Harris 243; before the executor has incurred expenses in proceedings to effect a sale: Davis’s Appeal, supra; before the estate has been administered: Baskin’s Appeal, 2 Wright 65; and before the interests of other parties shall have been affected by delay : Kirkpatrick’s Estate, 5 Phila. 98. There can be but one appraisement, and if property of less value than $300 be elected to be retained, the right to the residue is waived: Davis’s Appeal and Baskin’s Appeal, supra. If the claim be duly made, and be disregarded or refused, the remedy is by a personal action against the personal representative of the decedent: Compher v. Compher, 1 Casey 31. But the demand may be for property to the value of $300 out of the decedent’s real or personal estate, or for the sum of $300 out of banknotes, money, stocks, judgments or other indebtedness: Acts of 14th April 1851, and 8th April 1859. If money, as such, or money out of any security is retained, appraisement is not necessary: Larrison’s Appeal, 12 Casey 130; Baldy’s Appeal, 4 Wright 328; Peterman’s Appeal, 26 P. F. Smith 116.

There is no doubt of the accuracy of the principle asserted on behalf of the appellees, that an appraisement confirmed by the court is a matter of record, possessing the effect of a judgment, and open to no collateral review. It is the foundation of the widow’s right —it forms her very title to the property. But such a record is conclusive of the subject to which it relates, and of nothing else. In this case the widow desired to retain certain personal property, and the administrator procured to be made what is recited to be, “ a true and perfect inventory and just appraisement of all and singular the goods and chattels, rights and credits which were appraised to Elizabeth Sellers, widow.” The ascertained value was $48. It is alleged on behalf of the appellant that this sum formed part only of her demand, and that her claim to $252, the residue of $300, was out of a security belonging to her husband. If the fact were so, the appraisement could in no way affect that residue. Conclusive as to the chattels, the record had no connection with the Johnson note. The widow’s right to that rested on her election to retain the balance of her claim out of it, and not on any action of the appraisers, the administrator or the court. The whole question becomes one of evidence alone. Did Mrs. Sellers elect to retain $252 out of this particular sécurity? If so, the appellant performed a simple duty when he paid her.

Read in the light of Larrison’s Appeal and Baldy’s Appeal, the language of the Act of the 8th of April 1859 proves the propriety and accuracy of the construction that has been given to this claimant’s rights. “ The widow or children of any decedent, entitled to retain $300 out of such decedent’s estate, by the laws of this Commonwealth, and every person entitled to the exemption provided for by the act entitled ‘ An Act to exempt property to the value of $300 from levy and sale on execution or distress for rent, approved the 9th day of April A. D. 1849, may elect to retain the same, or any part thereof, out of any bank-notes, money, stocks, judgments or other indebtedness to such person. And in all cases hereafter, where property shall be set apart for the widow and children of any decedent, the same shall be appraised and set apart to said widow and children by the appraisers of the other personal estate of the decedent.” The word “property ” in the concluding clause of the section was manifestly used in the relation in which the same word was used in the Act of 1851, and in contradistinction to the provision for the exemption that should consist of bank-notes or money left by the husband or realized from evidences of debt. The Act of 1851 had directed the appraisement of property elected to be retained by a widow or children, “ in the same manner as provided in the Act passed the 9th day of April 1849.” The change made by the Act of 1859 consisted in directing an appraisement “by the appraisers of the other personal estate of the decedent.” Baldy’s Appeal was decided in 1861, and Peterman’s Appeal in 1874. In both cases, obviously, the provision for appraisement in the Act of 1859 was treated as applicable to property in the sense of land or chattels, and not to property in the sense of money, or of the proceeds of securities or stock.

As already stated, the question here is one of fact. Did the widow claim in addition to the chattels appraised at $48, $252 out of the note of William Johnson? The auditor appears to have regarded the point as unimportant, and no distinct finding in regard to it was reported. His decision was based on the ground that “ the widow can only have what the court awards, and having in this case awarded but $48, she can claim no more. Whether,” the report added, “ an appraisement of money, or notes as good as money, may be dispensed with in certain cases or not, is not material ; but appraised or not appraised, the widow’s claim must be set out, reported to the court, and if approved, must be confirmed.” The rule thus stated is supported by no recognised authority. So far from that, it is believed to be in conflict as well with the current practice throughout the state as with the spirit of the decisions of this court. The true rule is, that where a demand has been made in proper time, the money, in the language of Judge Thompson, in Baldy’s Appeal, may “be claimed in the administration account without any appraisement.” It is not the widow’s claim, but the appraisement of chattels elected to be retained, on which it is made the duty of the court to pass. The right to elect rests in the statutes, and is a question between the widow and the administrator. It is the valuation of chattels, that canno't be calculated or counted, but must be estimated by appraisers, which the law requires the court to approve or set aside. Turning to the evidence referred to in the opinion of the court below, and contained in the paper-book, the question of fact becomes free from difficulty. George W. Soult, the appellant, testified that “ the widow claimed her $300, and the balance over and above the appraisement out of the note of William Johnson. * * * We saw at once that the goods would not reach. She agreed to take them as'far as they went, without appraisement, to save the expense of a sale, and the balance she claimed in money out of the William Johnson note. * * * No entry was made in the appraisement as to the $252, because I did not think it was necessary.” Amos Hoot was one of the appraisers. He testified: “Mrs. Sellers, after the appraisement of the personal property, claimed the balance of the $300 out of the Johnson note. I think, but am not certain about it, that there was a Johnson note and a Brought note; and I think she said Soult might collect the Brought note, and she would take her balance’out of the Johnson note.” On cross-examination he said: “ I cannot say positively whether Mrs. Sellers made a claim on the Johnson note or not, but I believe she did.” This was the only proof on the subject. It was uncontradicted, and for all that appears in the record was credible and trustworthy. It was ample to sustain the appellant’s claim to be allowed for the $252, which it was admitted he had paid to the widow before the administration account was filed.

Decree reversed at the costs of the appellees, and auditor’s report set aside; and thereupon it is decreed that the exceptions to the administration account be dismissed, and the account be confirmed.


text:
    Shryock et al. versus Basehore.
    1. S. and R., who were assignees of an insolvent state bank (The Farmers’ and Mechanics’), by virtue of the provisions of the Act of 16th April 1850, brought this action against B. as the maker of a note to the bank: Held, (reversing .the court below) that B. could not be permitted to set up as a defence to the note that the assignment was void as being transgressive of the Bank rupt Act of 1867 : Held, that this was substantially an action by the bank against its debtor, and although it ought to have been brought by the assignees in the name of the bank, still this was amendable in the Supreme Court.
    2. Before suit brought, B. obtained from the First National Bank a dishonored draft drawn in favor of G., cashier of that bank, by the Farmers’ and Mechanics’ Bank for §2620.94, giving therefor his own note for §2543.75, upon the back of which was written an agreement that the note should be good for only such amount as B. should realize upon the draft, and that any amount realized upon the draft in excess of the amount of the note should belong to the First National Bank. The cashier, G., had no authority to transfer the draft to B. upon these terms: Held, that it was not the subject of a set-off by B., (1) because the transfer of the draft to B. was conditional and not absolute, and (2) because G.’s unauthorized transfer gave B. no title to the draft.
    May 22d and 23d 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1876, No. 62.
    This was assumpsit by Samuel S. Shryock and John P. Rhoads, assignees of the Farmers’ and Mechanics’ Bank of Shippensburg, against Abram S. Basehore, on a promissory note. The narr. contained a count on the note, and common counts. Defendant pleaded payment, set-off, and, at the trial, entered a further plea that the assignment to the plaintiffs by the directors of the Farmers’ and Mechanics’ Bank of Shippensburg was transgressive of the Act of Congress of the 2d of March 1867, known as the Bankrupt Law, and is therefore void. The defendant gave notice, under the plea of set-off, of a bill of exchange drawn on the Union Banking Company, a copy of which appears below in the special verdict, and asked to recover the difference from the plaintiffs.
    The jury found substantially the following special verdict:—
    “ The Farmers’ and Mechanics’ Bank of Shippensburg was incorporated by act of the legislature of Pennsylvania, of 11th April 1862, and was therein made subject to the provisions and restrictions of the several acts of assembly regulating banks, and to such further provisions and restrictions as the legislature should think proper to enact for the further regulation of banks and saving institutions.”
    On the 5th day of February 1875, the bank was the lawful holder of a promissory note for f2500, made by Abram S. Basehore, the defendant, of which the following is a copy:—

      “$2500. Shippensburg, Pa., Feb. 5th 1875.
    Fifty-two days after date, I promise to pay to the order of Emanuel Basehore, at the Farmers’ and Mechanics’ Bank of Shippensburg, twenty-five hundred dollars, without defalcation, for value received. Abram S. Basehore.
    Credit the drawer. Emanuel Basehore.
    Endorsed: Emanuel Basehore.”
    This note was not paid at maturity.
    On April 29th 1875, a petition was presented to the court of Common Pleas of Cumberland county, praying a citation to the president and cashier of the said bank, to. show cause why an assignment of the assets of the said bank should not be made for the benefit of the creditors thereof, in accordance with the provisions of the 27th section of an Act of Assembly, approved the 16th day of April 1850, entitled “An Act to regulate Banks.”
    A citation was awarded, and on the 3d day of May 1875, the court ordered that the directors of the bank should make and execute, under the corporate seal, a general assignment of all the estate, real and personal, of the bank, to such persons as they should select, subject to the approval of said court.
    On May 4th 1875, the president and directors of the bank, in obedience to this decree, made and executed to John P. Rhoads and Samuel S. Shryock, the plaintiffs, a deed of assignment of all the estate of the bank, in trust for creditors. This assignment was approved by the court, and was duly recorded, and the assignees were properly qualified to act as trustees thereunder. The bank was badly insolvent at the time and the assignees had notice thereof.
    Prior to the assignment, on April 1st 1875, a draft was issued by ■ the Farmers’ and Mechanics’ Bank of Shippensburg in favor of J. D. Q-eesaman, cashier of the First National Bank of Shippensburg, for $2620.94, on the Union Banking Company of Philadelphia. This draft was on the same day delivered to the First National Bank, and by it endorsed and sent to Philapelphia for collection, and was on the 2d of April presented for payment and protested, and on the 3d of April returned to the First National Bank, and by it placed in the hands of an attorney for collection. The following is a copy of it:—
    “ Farmers’ and Mechanics’ Bank of Shippensburg.
    “$2620.94. Shippensburg, April 1st 1875.
    “ Pay to the order of. J. D. Greesaman, Esq., cashier, twenty-six hundred twenty and dollars. J. Hiram Hurley, Cashier.
    “ To Union Banking Company, Philadelphia. Endorsed:
    “J. D. Q-eesaman.”

      The said J. D. Geesaman, at the request of the attorney for the First National Bank, on the 14th day of July 1875, endorsed the said draft of $2620.94, and delivered it to Basehore, and then received from Basehore, in lieu and consideration of this draft, a promissory note of the same date, made by Basehore and by one Emanuel Basehore, as follows:—
    “ 2543AN Shippensburg, Pa., July 14th 1875.
    “ Ninety days after date, we or either of us, promise to pay to the order of J. D. Geesaman, cashier, at the Frst National Bank of Shippensburg, twenty-five hundred and forty-three 7Vu dollars, without defalcation, for value received, together with five per cent, attorneys’ fee for collection of same, if not paid when due.
    Abram S. Basehore.
    Emanuel Basehore.”
    At the time of the making of the last-mentioned note of 16th July 1875, there was written on the back of it the following:—
    “ This note is given in purchase of a certain draft held by the First National Bank of Shippensburg, fur $2620790%, drawn by the Farmers’ and Mechanics’ Bank of Shippensburg upon the Union Banking Company of Philadelphia, date 1st of April 1875, and protested, and is good only for so much as the makers hereof, or either of them, shall realize upon said draft either by collection, payment, or credit obtained upon obligation. If any excess shall lie realized upon said draft over and above the amount of the note, said excess to belong to the said National Bank.”
    The consideration given by Basehore for this draft was the note of the 14th July 1875, for $2543.75, with the memorandum thereon,' and this endorsement was on the note when it was taken by the First National Bank for the draft. This draft was not received by Basehore upon any other terms than those which were written on the back of the note of 14th July 1875, nor did the First National Bank hold the note upon any other terms or agreement.
    Geesaman had a general authority to endorse the notes and drafts of the First National Bank aforesaid; he had no authority, apart from his general authority, to endorse this draft to Abram S. Basehore; he did not so endorse the draft by the express direction of the board of directors; it was endorsed by the direction of the president of the bank; no minute was made of the transaction, nor was any formal action of the board taken theron. The board were informed by the cashier, within a week or two, of the 'transfer of the draft and of the taking of the said note for it, and acquiesced therein; but the board were not informed by the cashier of the writing on the back of the note; neither the president nor directors ever gave Geesaman any express authority or directions to transfer the draft to Basehore upon any terms or conditions other than the note of Basehore for $2500. The president authorized the transfer, if Basehore would give his note for $2500. The president of the board was present when the note was written and given, and was cognizant of the whole transaction, and approved of it, and directed the endorsement to be made. The note of 14th July 1875 was held by the First National Bank up to the time of the trial.
    The draft so endorsed to and held by Basehore was tendered by him to the assignees in payment of the note in suit, on the 14th day of July 1875, before this suit was brought, and was by them refused, and was also tendered to the plaintiffs on the trial of the case.
    The defendant, about the middle of November 1875, after this suit was brought, which was on the 19th day of August 1875, paid $800 into the First National Bank, and directed that sum to be appropriated to the note of 14th July 1875. The clerk of the bank said he would lay it aside until the cashier came in. The direction given was not revoked by Basehore, but the money was not appropriated by the bank to the note, but found to the credit of Basehore, in his account, and awaited his directions.
    The defendant, at the time of the transfer of the said draft to him, had knowledge of the assignment by the bank to the assignees made on the 4th of May 1875, and that the assignees had accepted the trust.
    Upon these facts the jury were' ignorant how they ought to find a verdict. If, upon the whole matter, the court should be of opinion with the plaintiffs, then they found for the plaintiffs in $2607.72; otherwise they found for the defendant.”
    The court below (Rowe, P. J.), in entering judgment on this verdict for the defendant, was ‘ of opinion that the verdict raised two questions, first as to the validity of the assignment to the plaintiffs, and secondly as to the set-off. As to the former, question the learned judge, in an elaborate discussion, held that the bankrupt act made the deed of assignment to the plaintiffs void. As to the latter point, the learned judge said:—
    “ And now as to the question of set-off, it has been contended that the draft for $2600, drawn by the Farmers’ and Mechanics’ Bank of Shippensburg, on Philadelphia, in favor of the First National Bank, and endorsed to the defendant after maturity, is not included in the word ‘ obligations ’ as used in the law, and is not such a note or obligation as the assignees must accept in payment of debts due to the bank. This contention is not supported by authority, and it seems clear that a draft drawn by a bank is one of its ‘obligations.’ *
    “ The fact that the draft was taken .by the defendant after the assignment by the bank to the plaintiffs, and with knowledge of it, is of no consequence, as ruled in Bank v. Spangler, 32 Penn. St. 474. The cashier of the First National Bank had authority, as such, to make the endorsement and transfer the draft: Matthews v. Massachusetts National Bank, 14 Am. Law Beg. 153; Bank v. Beed, 1 W. & S. 106; Bank v. Typer, 3 Id. 376; Housum v. Bodgers, 4 Wright 190. To the objection that the writing on the back of the note given for the draft shows that the note was not to be paid by defendant except to the extent to which he should be able to make use of the draft, and that therefore the transfer of the draft to the defendant was conditional, Mr. Stewart has answered that it is not the transfer of the draft which is conditional. That is absolute. What is conditional is the payment of the note which defendant gave for the draft. It will not again become the property of the First National Bank in any event. That is a satisfactory answer. The intention of the law is clear that the notes and obligations of the bank, and the checks of its depositors shall be as good as gold in payment of its debts. The draft is such an obligation of the bank, in the defendant’s possession honestly and for all purposes, and he may use it in payment or as a set-off.”
    The plaintiffs took this writ of error, and assigned for error the entering of judgment for the defendant upon the special verdict.

      B. M. Kimmel, George W. Brewer, Hastings Gehr and W. K. Shryoek, for plaintiffs in error,
    made an elaborate and learned argument upon the question of the validity of the assignment to the plaintiffs, and also upon the question as to whether the draft offered in evidence under the plea of set-off was an obligation of the Farmers’ and Mechanics’ Bank, under section 27 of the Act of 16th April 1850. These points were not passed upon by this court, and the arguments need not be given here.
    They further argued that the defendant’s title to the draft was not sufficient, because he took after notice of the assignment, and also because he held only a conditional title. As to the latter point, a defendant must have a set-off in the same way as if he had brought an action upon it: Magraw v. Pettibone, 10 Mich. 550; Kimble v. Glover, 13 Rich. (Law) 191; Straus v. Eagle Insurance Co., 5 Ohio St. 59; In re Brett, 13 N. B. Reg. 43; Thorp v. Wegefarth, 6 P. F. Smith 82; Ryder v. Johnson, 8 Harris 190; Singerly v. Swayne’s Adm’rs, 9 Casey 102; Philips v. Bank of Lewistown, 6 Harris 394; Northampton Bank v. Balliet, 8 W. & S. 311; Selfridge v. Northampton Bank, Id. 320; Bosler’s Adm’rs v. Exchange Bank, 4 Barr 32; Bartholomew’s Adm’r v. Bartholomew, 14 Wright 194; Pennell v. Grubb, 1 Harris 552; Smith v. Ewer, 10 Id. 116; Spears v. Sterrett, 5 Casey 192; Diven v. Phelps, 34 Barb. 224; Huxton v. Bishop, 3 Wend. 13.

      T. B. Kennedy and John Stewart, for defendant in error,
    did not present a paper-book.
   Mr. Justice Paxson

delivered the opinion of the court, October 9th 1876.

A vast amount of learning has been wasted in this case. If the questions which were so elaborately argued here and in the court below were legitimately before us, we would certainly feel that the case was not free from difficulty. But Basehore, the defendant, has no standing which entitles him to raise them. He is the debtor of the bank, and this suit was brought against him to recover the amount of such indebtedness. He defends upon the ground that the assignment by the bank was in contravention of the Bankrupt Law. What is that to him ? What has he to do with the distribution of the fund ? That question concerns only the creditors of the bank, and can only be raised by them. It is no answer to this to say that the assignment being void, no title to the note sued upon passed to the assignees. This is substantially a suit by the bank against its debtor. If it were so in form it is not pretended that this defence could be set up. That it was brought by the assignees does not matter. It is true it should have been brought by the assignees in the name-of the bank. But this is the merest technicality. It was amendable of right in the court below, and could be amended here. We may regard that as done which ought to have been done, and consider the record as amended for the purposes of this case. There is abundant authority for this. Palmer v. Waite, 1 Weekly Notes 363, and cases there cited. Nor can this prejudice the defendant. The judgment against him is a full protection. While the defence has developed a solicitude for the rights of the creditors of the bank that is certainly commendable, we are inclined to the opinion that if the defendant will pay his debt to the bank, some means will be found by which the rights of creditors can be ascertained and adjusted. Whether the fund shall be distributed according to the terms of the bankrupt law, or in accordance with our Act of 1860, under which the assignment was made, are questions which do not concern this defendant.

Any other conclusion would lead to difficulty. The time has gone by for proceedings in bankruptcy. There is no assignee in bankruptcy, nor can there be under the admitted facts in the case. If the bank, through its assignees, cannot sue for this debt, it cannot be recovered at all.

The draft in favor of Greesaman, cashier, was clearly not the subject of set-off in this suit. The ■ defendant had no title to it. The endorsement on the back of the note of Abram and Emanuel Basehore shows that there was not an absolute transfer of the draft. The excess of the draft over the note, if recovered, was to be returned to the First National Bank of Shippensburg. But the more serious difficulty is that the draft was given to the defendant without authority. It .is found by the special verdict that “ neither the president nor directors ever gave the said J. D. Greesaman any express authority to transfer the draft to Basehore upon any terms or conditions other than the note of Basehore for $2500.” It needs no argument to show that a cashier cannot part with the assets of a bank without its authority. Nor can such authority be implied in the face of the finding of the jury. As the defendant had no title to the draft, it could not be set off either under our Defalcar tion Act, or the Act of 16th April 1850, under which the assignment of the bank was made.

The judgment is reversed, and judgment is now entered here upon the verdict in favor of the plaintiffs for the sum of $2607.72, with interest from the 18th day of January, A'. D. 1876.


author: Paxson, J. —

text:
    Shryock et al. versus McClure.
    •This was an action on a promissory note, brought by Samuel T. Shryock and John P. Rhoads, assignees of the Farmers’ and Mechanics’ Bank of Shippensburg, against William McClure. The facts in regard to the assignment to the plaintiffs are the same as in Shryock v. Basehore, above reported. The defendant requested the court to charge that the plaintiffs could not recover because the deed of assignment to them was void as “ being transgressive of Bankrupt Act.” The court so charged and directed a verdict for the defendant, which charge was assigned for error. The case was argued most learnedly by the same counsel as appeared in the last case (and on the same day) for the plaintiffs in error.

      J. McD. Sharpe, T. B. Kennedy and John Stewart, for defendant in error,
    did not present a paper-book.
   Paxson, J. —

What has been said in Shryock et al. v. Basehore, renders any discussion of this case unnecessary.

The judgment is reversed and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Berlin Beneficial Society versus March.
    By the provision of a by-law of a beneficial society, at the death of one of its members $25 were to be paid to his widow or relatives to provide for his decent interment. The widow of a deceased member, who, at the time of his death and for years previously, had not been living with him, and had incurred no expense towards his interment, brought an action to recover this stipulated sum, and was met by an offer by the society to show that the amount had already been paid to decedent’s son-in-law, at whose house he died, and who bore' all the expense of his funeral; which offer was rejected by the court: Held, that this offer should have been received; Held, also, that being separated from her husband, in pursuance of a mutual understanding and not by reason of coercion or ill-treatment, living apart from him at the time of his death, and having borne no part of the funeral expenses, the widow was not entitled to the bounty of the society.
    May 23d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Adams county: Of May Term 1876, No. 37.
    This was an action of assumpsit, brought by Barbara March against the Berlin Beneficial Society, a corporation-chartered by the Court of Common Pleas of Adams county, among the by-laws of which was contained the following provision:—
    “ At the death of a member who shall have belonged to the association at least one year, the association shall pay to his widow or relatives twenty-five dollars, for and towards his decent interment, and at the next stated meeting each member shall pay an extra contribution of fifty cents, which shall be given to the widow of such member.”
    On the trial plaintiff testified as follows:—
    “My husband was Daniel March. We were married I think on the 5th of October 1857. I have the justice’s certificate of marriage. Daniel March is dead; He died the 3d of last September, two years ago. I knew of his being a member of the Berlin Beneficial Society. ' Three or four months after his death I made demand of Hamilton King (the president of the society) for the twenty-five dollars. The man who made the coffin for Daniel March came after me. I told Hamilton King I wanted twenty-five dollars to pay for the coffin. He wouldn’t give it to me. I never received it from any one. At the time I was married I lived in York county. After marriage moved to Berlin, where my husband and I lived twelve or thirteen years altogether. He assigned all the property to me. I payed him $100 and he left. That was about six or eight years ago. He didn’t live with me since that time. He lived in Berlin by himself — did his own cooking and housekeeping. I didn’t go to see him. I was present at his funeral — not present at his death. I did.not engage the coffin. My husband died in York county, seven miles from Berlin. I went down the day of the funeral — not before.”

      It was admitted that Daniel March was a member of the society-in good standing and had been for one year before his death.
    The plaintiff acknowledged the receipt of eighty-three dollars and fifty cents, the amount raised by a contribution of fifty cents from each member of the society, but brought this action to recover the twenty-five dollars provided by the by-law to be paid to her as widow to defray the funeral expenses of her deceased husband.
    The society resisted payment, alleging that the money had already been paid out in accordance with the provisions of the by-laws, and called John F. Mummert, the son-in-law, as a witness, and offered to prove by him “that Daniel March, the deceased member, died at the house of his son-in-láw,- John F. Mummert, whose wife is living and keeping house with' him as husband and wife; that the funeral was held at the house of this relative, and that decedent was buried from his house; that this relative paid for the shroud, and incurred other- expenses attending the interment of deceased; that he directed the coffin to be procured from the undertaker, and received from the Berlin Beneficial Society, the defendant, before the bringing of this suit, the sum of twenty-five dollars for and towards the decent interment of the said Daniel March.”
    The plaintiff objected to this offer as insufficient to constitute a defence-to plaintiff’s claim under the provisions of defendant’s charter and by-laws, and the court rejected the offer. Defendant excepted and the court overruled the exception and instructed the jury to find for the plaintiff. There was a verdict and judgment accordingly, and defendant took this writ and assigned for error the rejection of his offer of evidence and the instruction of the court. There were other errors assigned, but they do not enter into the decision of this court.

      W. B. Woods, for plaintiff in error. —
    It is not a contribution for the widow, but a payment for a specific purpose — the member’s decent interment. No right attaches to any one to have the money except for the particular purpose designated. There might be circumstances wherein the society would be justified in'passing widow and relatives to secure a decent interment for the deceased member, which is the matter to be provided for, and the widow or relatives are only designated because it is natural they should provide for proper interment. The payment is not to the widow only, it may be to a relative, and the medium through which the money is paid is not essential to its object.

      David Wills, for defendant in error. —
    The widow of a decedent is the party who should be consulted and should give directions for the arrangements for the interment. She is first to be considered, and the by-law referred to does not contemplate that the society has its option to pass the widow by and pay any of the more remote kindred of the decedent. Its reasonable construction is that the money is to be paid to the widow, if decedent left a widow; if not, then to his relatives. It is only in the event of there being no widow that the society can pay to the relatives.
   Mr. Justice Gordon

delivered the opinion of the court, June 5th 1876.

Daniel March died at, and was buried from the house of his son-in-law, who seems to have provided all -things necessary for the funeral. Mrs. March, the plaintiff, wife of Daniel, was not living with her husband at the time of his decease, nor had she been for some six or eight years previously thereto. According to her own testimony, the separation resulted from a mutual understanding between themselves, and not from any coercion or ill treatment upon his part. Following the analogy afforded us in the case of Hettrick v. Hettrick, 5 P. F. Smith 290, in which it was held that a widow separated from her husband, under like circumstances to those above stated, was not entitled to the $300 exempted by the Act of 1851, we cannot see how the plaintiff was entitled to the bounty of the society defendant. This bounty was intended for the benefit of the widow of the deceased, or in case he should leave no widow, then for his children, the obvious intention being to aid and abet those who had been immediately dependent upon him for sustenance and support, and who, by his death, would be left helpless. This, however, cannot be predicated of the plaintiff, for she was not of his family at the time of his death, nor had she been for many years; she had not performed the duties of a wife to Daniel March and was in nowise dependent upon him for maintenance.

This reasoning would apply to the donation she has already received from the treasury of the society, but it has all the greater force when considered in connection with her claim for the twenty-five dollars, which she seeks, in this suit, to recover. That sum of money was, by the rules of the society, especially designed to aid in the “ decent interment ” of the deceased, but about this she put herself to neither expense nor trouble. The son-in-law, to whom, it was proposed to show, the twenty-five dollars were paid, bore the burthen of the funeral, and, if it be so, that the coffin is not yet paid for, clearly she is not liable therefor, whoever else may be. In this matter she has incurred neither cost nor liability and it would be strange indeed if she were entitled to money devoted to an object which she in no degree assisted to promote. The defendant’s offer of evidence should have been received; but the exceptions taken to the narr. are not sustained.

The judgment is reversed and a new venire awarded.