author: Mr. Justice Paxson

text:
    Hunter versus Commonwealth.
    1. Upon an indictment charging a particular crime, the defendant may be convicted of a less offence included in it.
    2. A felony triable in the Quarter Sessioi^may be joined with a misdemeanor growing out of the same transaction and part of it.
    3. A defendant was indicted in a single count, that he “feloniously did make an assault on E. * * * and shoot at said F. with intent to murder him.” Held, that he might be convicted of an assault only; the assault was the offence charged, the intent the mere aggravation.
    4. Where a defendant is tried on an indictment charging both a felony and misdemeanor, he cannot testify under the Act of April 3d 1872.
    5. If a count for felony be joined with one for misdemeanor, for the purpose of excluding defendant as a witness, the court trying the case has power to prevent the law from being abused.
    6. The common-law rule, that on an indictment for a felony there can be no conviction for a misdemeanor, does not exist in Pennsylvania.
    7. Commonwealth v. Gable, 7 S. & K. 433; Dinkey v. Commonwealth, 5 Harris 127, distinguished.
    November — 1875.
    Before Aunew, O. J., Sharswood, Williams, Mercur, G-ordon, Paxson and Woodward, JJ.
    Error to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1875, No. 73.
    At the September Term 1874, of the Court of Quarter Sessions, an indictment was found against James A. Hunter and Agatha Hunter, that they “ with force and arms, feloniously did make an assault upon one Samuel Floyd, &c., * * * and that the said James A. Hunter, in his right hand then and there had and held (a pistol, and) feloniously did then and there shoot at the said Samuel Floyd with intent, him, the said Samuel Floyd, then and there feloniously to kill and murder. And that the said Agatha Hunter, at the time of the committing of the felony and assault aforesaid, &c., * * * was there present, aiding, helping, abetting, assisting, comforting and maintaining the said James A. Hunter in the felony and assault aforesaid, in manner and form aforesaid, to do, commit, and perpetrate. And so the inquest aforesaid, &c., do say that the said James A. Hunter and the said Agatha Hunter then and there, in manner and form aforesaid, feloniously did shoot at the said Samuel Floyd with intent, him, the said Samuel Floyd, then and there, feloniously to kill and murder, contrary to the form of the Act of the General Assembly,” &e.
    The indictment was tried November 23d. 1874, and the jury found “ the defendants, James A. Hunter and Agatha Hunter, guilty of an assault.”
    On the 28th November 1874, the defendants moved in arrest of judgment, for the following reason
    “ That the indictment, containing but one count, charged a felony, of which offence the jury acquitted, but found defendants guilty of a misdemeanor, upon which finding no judgment can be entered, because the greater offence contains the lesser, and the latter was merged in the former; because there is no statute authorizing it; no decision of the Supreme Court changing' the common law and practice, and at common law, both in England and here, no such judgment could be entered on such a finding.”
    On the 2d of January 1875, the motion was overruled and James A. Hunter was sentenced to pay a fine of $200 and be imprisoned for ten months.
    James A. Hunter took a writ of error and assigned for error, that the court erred :—
    1. In overruling defendant’s motion in arrest of judgment.
    2. In holding that a conviction could be had for a misdemeanor in an indictment charging a felony alone.

      J. S. Ferguson, M. Swartzwelder, and R. M. Gibson, for plaintiff in error,
    cited Henwood v. Commonwealth, 2 P. F. Smith 424; Stevick v. Commonwealth, 28 Id. 460; Commonwealth v. Gable, 7 S. & R. 433; Dinkey v. Commonwealth, 5 Harris 129. The offence charged being a felony under the criminal code of March 31, 1860, sect. 82, Pamph. L. 403, 1 Br. Purd. 340, pl. 128, the defendant would be prevented from testifying under Act of April 3d 1872, sect. 1, Pamph. L. 34, 1 Br. Purd. 625, pl. 21.

      1. M. Marshall, for Commonwealth, defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, November 15th 1875.

The plaintiff in error was indicted for a felonious assault. The jury convicted him of assault. A motion in arrest of judgment was made, which was overruled by the court below, and judgment entered on the verdict. This is assigned here for error.

The record presents the single question, whether upon an indictment charging a felony, the jury may acquit of the felony, and convict of the constituent misdemeanor. We are in no doubt as to the rule at comifton law. It was long held in England, that upon an indictment for a felony there could be no conviction for the minor offence of misdemeanor: Rex v. Cross, 1 Ld. Raym. 711; s. c. 3 Salk. 193 ; 2 Hawk., chap. 47, § 6 ; 1 Chit. C. L. 251 and 639. The reason of the rulé was, that persons indicted for misdemeanors were entitled to certain-advantages at the trial, such as the right to make a full defence by counsel; to have a copy of the indictment, and a special jury, privileges not accorded to those indicted for a felony. It is apprehended these-reasons no longer exist in England — at least not to the extent they did formerly, for by the stat. 1 Viet., ch. 85, § 11 (Lord Denman’s Act), the rule itself has been abolished, and now upon a bill charging a felony, a conviction may there be had for a constituent misdemeanor. It is clear that the reason of the rule has no application in this state. On the contrary, the advantages, if any, upon the trial, are all in favor of those charged with a felony. By the merciful provisions of our criminal law, the higher and more atrocious the crime, the more numerous are the safeguards thrown around the accused, and the more jealously does the law guard every legal right to which he is entitled.

The rule in other states of this country is by no means uniform. It is.said by. Mr. Wharton, in his work on Criminal Law, § 400, that the old common-law rule is still followed in Massachusetts, in Indiana and Maryland; while in New York, Vermont, New Jersey, Ohio, North Carolina, South Carolina and Arkansas, it has been held that.the reason of the English rule having ceased, the rule itself ceases, in obedience to the maxim eessante ratione legis cessat ipsa lex, A number of authorities are introduced by Mr. Wharton, which it is unnecessary to refer to here. The learned author places Pennsylvania as among the states in which the old common-law rule still prevails, and cites The Commonwealth v. Gable, 7 S. & R. 433, in support of his text. The case referred to is authority only for what it decides. No such question was before the court. The contention there was whether upon an indictment for murder, a conviction for manslaughter, without stating it was for voluntary manslaughter, could be sustained. The court held that the verdict was sufficiently certain; that it was to be presumed the jury meant voluntary manslaughter. ■ It is true, C. J. Tilghman, who delivered the opinion of the court, recognised the common-law rule referred to, but it was assumed, not argued. Indeed, it could not well have been otherwise, as the point was not made. Black, C. J., also appears to have recognised -the rule in Dinkey v. The Commonwealth, 5 Harris 127, when he said that, “ on an indictment for a felony, there cannot be a conviction for a minor offence included within it, if such minor offence he a misdemeanor.” But this point was not before the court in Dinkey v. Commonwealth. All that case ruled was, that an indictment for seduction under the statute includes the charge of fornication, and that a party indicted for seduction and acquitted, may plead such an acquittal in bar of the subsequent indictment for fornication and bastardy on the same act; and the record will he a complete defence. It will thus be seen that Dinkey v. The Commonwealth, as well as Commonwealth v. Gable, are not authority to the extent claimed for them, and can hardly be said to support the rule. On the other hand, we are not without authority to support a conviction of a misdemeanor upon an indictment charging a felony. In Harman v. The Commonwealth, 12 S. & R. 69, in which it was held that a count charging assault with intent to ravish might be joined with a count for rape, C. J. Tilghman shows that as far back as 1772, upon an indictment charging rape, the defendant had been convicted of an assault with intent to ravish. In Shouse v. The Commonwealth, the principle is laid down by Burnside, J.: “ When a count in an indictment contains a divisible averment, it is the province of the jury to discriminate and find the divisible offence; and this distinction runs through the whole criminal law. It is enough to proveso much of the indictment as shows that the defendants, or any one of them has committed a substantial crime therein specified.” Justice Burnside then proceeds to cite Rex v. Dawson, 3 Starkie 62, where an indictment charged the defendant with an assault with intent to abuse and carnally know a female child, and it was held that he might be convicted of an assault to abuse her simply : 5 Ohio R. 242, where it was held that on an indictment for an assault with an intent to murder, there may be a conviction of an assault simply ; and adds : “ this is the law and practice of Pennsylvania.” The general rule is well settled that upon an indictment charging a particular crime, the defendant may be convicted of a lesser offence included within it. Thus upon an indictment for murder the prisoner may be convicted of manslaughter ; a person charged with burglary may be convicted of larceny, if the proof fail of breaking and entering; a person charged with seduction may be convicted of fornication : Dinkey v. Commonwealth, 5 Harris 127 ; when persons are indicted for riotous assault and battery, they may be convicted of assault and battery only : Shouse v. Commonwealth, 5 Barr 83 ; when the charge is assault and battery, a conviction may be had for assault. Instances of this kind might be multiplied indefinitely if necessary.

The common-law rule that a felony and misdemeanor cannot be joined in the same indictment had its foundation in substantially the same reasons as the rule under discussion. Yet we have seen tha't it was departed fr'om in Harman v. The Commonwealth. Since then it has been constantly undermined. In Henwood v. The Commonwealth, 2 P. F. Smith 424, it was said by Agnew, J., that “ the English rule against the joinder of a felony and misdemeanor in the same indictment has been greatly modified by modern decisions. It would be going too far to say now that it exists in any case except it is where the offences are repugnant in their nature and legal incidents, and the trial and judgment so incongruous as to tend to deprive the defendant of some legal advantage,” citing Reg. v. Ferguson, 29 Eng. L. & E. 536 ; Harman v. Commonwealth supra; State v. Hooker, 17 Vt. 658; State v. Boyle, 1 McMullin 190, and other cases. I regard it therefore as the settled rule in this state, that a felony triable in the Quarter Sessions may be joined in the same indictment with a misdemeanor growing out and a part of the same' transaction. Whether a misdemeanor may be joined in the same indictment with a felony which is triable exclusively in the Oyer and Terminer, is a question about which I express no opinion, as the principle is not necessarily involved in this case.

If the indictment here had contained a count charging assault merely, it is clear from the above authorities that there would have been no misjoinder. It is equally clear that a conviction for the assault and an acquittal for the felony would have been good. So would a conviction upon the bill generally. If then there could have been a conviction upon the count for assault, why not without the count ? 'We have seen that the rule against the non-joinder of the two offences no longer exists. What is there left to support the position that upon the charge of felony a conviction cannot be had for its constituent misdemeanor ? In this case the defendant was indicted for an assault with intent to kill. He was convicted of an assault. This was the very offence with which he was charged. The intent to kill is a mere qualification or aggravation of the crime. The fact to he proved by the Commonwealth was the assault. It was for the jury to say whether, under the circumstances attending the assault, the nature of the attack, and the means employed, it was accompanied with an intent to take life. Upon the question of the intent, the jury have found in favor of the defendant, but convicted of assault. How has he been injured by this ? The greater crime necessarily involved the less. It was divisible. The lesser could exist without the greater, and the jury have so found. There was no surprise upon the defendant. The fact of the assault was the very issue before the jury, and he enjoyed every legal right incident to the trial that he would have been entitled to if he had been indicted for the misdemeanor. Nor is he left in any peril hereafter. The plea of autrefois convict would be a sufiiciefit answer to a subsequent indictment for the misdemeanor.

It was strongly urged, however, as a rSason why this conviction should not be sustained, that the defendant was deprived of the benefit of the Act of April 3d 1872, which permits- defendants charged with offences not above the grade of misdemeanor (forgery and perjury excepted) to testify in their own behalf. The objection is plausible, but unsound. The act in question may be regarded as an indulgence extended to defendants in certain cases. It was not intended to embarrass or delay the administration of criminal justice, nor to make two trials necessary where one sufficed before. It is not to be extended to cases not enumerated in the act. It has no application where a party is charged with a felony. Such was the charge here. It is true the result of the trial shows the defendant did not commit the felony. But that was one of the questions of fact the jury were called upon to try. In the determination of -such an issue the defendant had no right to be heard from the witness-stand. Had the indictment included a count for the assault it cannot be pretended that the defendant would have been a competent witness. And if convicted of the misdemeanor only, it would not have been a sufficient ground to arrest the judgment. If it be urged that this view of the effect of the Act of 1872 may lead to cases of hardship, it is sufficient to say that the remedy for such cases is in the courts below. If a count for a felony is joined in an indictment with a count for a misdemeanor for the mere purpose of closing the mouth of the defendant, the judge before whom the cause is tried has ample power to see that, the process of the law is not abused. It is not to be presumed that public officers charged with the prosecution of the pleas of the Commonwealth will use the powers they possess to the injury of the citizen.

The common law bristles with technicalities. It was said by Lord Hale, an eminent as well as a humane judge, that such niceties “ were grown to be a blemish and an inconvenience in the law, and the administration thereof;, that more offenders escape by the easy ear given to exceptions to indictments than by the manifestations of their innocence, and the grossest criminals had gone unpunished by reason of these unseemly niceties.” Many of the niceties to which Lord Hale alluded survived long after the reasons in which they had their origin had passed away. But few of them remain to vex the administration of justice. The tendency of modern legislation and of judicial decision is to disregard mere technicalities, and to regard the substance rather than the form. Our revised Criminal Code and Criminal Procedure Act have brushed away many of these “unseemly niceties.” Among these changes may be noticed § 107 of the Code, defining the offence of-larceny by any clerk, servant, or person in the employ of another, where the property stolen has never gone into the actual possession of the owner; § 108, in regard to larceny by bailees, where the bailee shall not breal£ bulk, or otherwise determine the bailment; also sections 11 to 22 of the Criminal Procedure Act, relating to indictments and pleadings, allowing the amendment of indictments in mere formal matters; simplifying the forms of indictments, so that it is sufficient to charge the offence substantially; and sections 50 and 51 of the last-named act, in the former of which it is provided that a party indicted for felony or a misdemeanor may be found guilty of an 'attempt to commit the same; and in the latter, that persons indicted for a misdemeanor shall not be acquitted, if upon the trial the offence turns out to be a felony. The last-named sections-have an important bearing upon the question under consideration. The analogy is so close that we might safely rest our decision upon it. The statute having made it the duty of the jury to convict of an attempt where the proof fails of the completed offence, it is difficult to see any sufficient reason why a conviction may’ not be had for a completed misdemeanor, when the proof fails of the perpetration of the felony of which it is a constituent.

In the Quarter Sessions of Philadelphia, the most important criminal court in the state, the English rule has long since been abandoned. So far as I have means of knowledge the same is the case throughout the state. While this is not conclusive, it is yet important, as showing the drift of the judicial and professional mind.

In view of all these facts, and of the authorities cited, we have no hesitation in declaring that the old common-law rule, that upon an indictment for a felony there can be no conviction for a misdemeanor, no longer exists in Pennsylvania.

The judgment of the Court of Quarter Sessions is affirmed, and it is now ordered here, that James A. Hunter, the plaintiff in error, be remanded to the custody of the keeper of the Allegheny County Workhouse, there to be confined according- to law and the sentence of the court below, for the residue of the term to which he was sentenced, and which had not expired on the 12th day of February 1875, when the writ of error in this ease was lodged in the office of the clerk of Quarter Sessions ; and that the record be remitted to the said court with instructions to carry this order into effect.


source: Caselaw Access Project

author: Coulter, J.

license: Public Domain

text:
    Hart v. Evans.
    I special damages be claimed for an alleged tort, they must, as a general rule, be set out in the declaration as inducement, or distinct grounds, for superadded damages. But where the damages arise necessarily from the tortious act, it seems that it would not be necessary to set them out: the tortious act being itself the gravamen of the action, and the necessarily resulting injuries being only the measure of the damages.
    Iran action for a private nuisance, for turning the course of an ancient stream, so that it no longer flowed on the lands of the plaintiff, it is an intendment of .aw, that the plaintiff, by the loss of the water, was thereby injured; and ividence to show that, in consequence thereof, he was compelled to haul water 'rom a distance to supply the uses of the stream, is proper and admissible to jive the jury certain data upon which they may estimate the real damages, and B not claiming damages for a distinct injury not necessarily resulting from the niisance.
    Eviden®, tending to show a hypothetical state of facts as they might have been made to exist, is not admissible.
    Tint wiich neither justifies, excuses, nor mitigates the tortious acts complained of, isnot evidence.
    In an ation for diverting a stream of water, it is not error in the court to charge, “tha the measure of damages is the injury which the plaintiffs actually sustaind by reason of the wrongful acts proved to have been committed by the defedants upon the premises, and that the jury will estimate the value accordig to the evidence.”
    It is nc error in such case for the court to charge, “that the water-course was a permnent advantage to the inheritance; and taking it away was an injury to tie inheritance, for -which an action would lie.” In an action for diverting a water-course from the lands of the plaintiff, his possession is sufficiently stated in the declaration, by an averment, that at the time of the commission of the torts, he was “ seised in his demesne as of feeseised in law being sufficient, and it is not necessary to state and prove an actual pedis possessio, to sustain such action.
    The gist of the action for diverting a water-course, is the diversion; which, in whatever way it is done, is an injury both to the freehold and the possession.
    In error from the District Court of Lancaster county.

      May 8. Case for nuisance, by Davis Evans, Hiram Evans, Abraham Bruner and Rebecca his wife, late Rebecca Evans, children and legal representatives of James Evans, deceased, the defendants in error, against Daniel Hart, John Hart, Jacob Hart, and Daniel Hart, jun., the plaintiffs in error. The action was brought to recover damages for injuries caused by turning off an ancient stream of water from plaintiffs’ land. James Evans, deceased, the father of the plaintiffs, was the son of James Evans, who died in 1801, and who, by his will made on the 18th of March, 1800, devised to his said son the tract of land, now the property of the plaintiffs, and on which the injury caused by the nuisance complained of, was committed by the defendants. The declaration was thus: —
    “For that whereas the said plaintiffs, on the 2d day of April, in the year of our Lord one thousand eight hundred and thirty-two, were, and still are, seised in their demesne as of fee, of and in a certain tract of land, situate and being in the townslip of Caernarvon, in the county aforesaid, containing one hundred and eight acres, be the same more or less. And whereas tie said plaintiffs, and all others whose estate the said plaintiffs new have in the tract of land aforesaid, have used and had, and ought to use and have, the benefit of a certain stream of water, or ancient water-course, which extended itself in and througa diva's parts and parcels of the said tract of land: Nevertheless, the aforesaid defendants not being ignorant of the premises, but maliciously contriving and wickedly intending them, the said plaintiffs, of the benefit and advantage of the said stream of water, or aicieut water-course, entirely to deprive, the 2d day of April aforesaid, in the year last aforesaid, and at divers other times as well before as after, at the township of Caernarvon aforesaid, in the countyaforesaid, the stream and course of water aforesaid, did dam up stop, obstruct, and from the ancient course in which it used to rin, did divert or cause to be diverted. By reason of which said damning, stopping, obstructing, and diverting of the said stream or vatercourse, the said plaintiffs have been deprived of the benefit and use of the said water-course or stream of water for a long time, to wit: on divers days and times between the said 2d day of April in the year aforesaid, and the bringing of the writ of the said plaintiffs, by which they now sue, and during all the time aforesaid.”
    The plaintiffs brought this suit, on the 14th of May, 1833; at which time, Hiram Evans, one of the plaintiffs, was in possession ■ of the land, and worked it on the shares.
    James Evans, the elder, by his will, which was given in evidence by the plaintiffs, devised to his son James, the father of the plaintiffs, a tract of land containing 108 acres; to his son John, a tract containing 108 acres; to his son, Caleb, a tract of land, on which was a saw-mill, a tract of land in Chester county, and several lots adjoining the tract on which the saw-mill was erected, containing altogether, two hundred and three acres and one hundred and forty perches. The plaintiffs derived their right to the water-course under the following clause of the will of the said testator :—
    “ I order and direct my son Caleb, when using the water to his mill, is not to let it run in the natural course, but to keep it in the ditch or race, so that it go down as usual to water his brother’s meadow, they keeping the race and ditch clean, and in case Caleb clears any meadow-ground below the race, he shall be allowed the use of the water at times to water it, so that they may all of them have use of the water as equally as they can, after it leaves the mill or mills.”
    The mill referred to in this clause, was the saw-mill. It appeared from the evidence, that this saw-mill was in operation when the said will was made, but how long afterwards, was not shown. It was not, however, in operation in 1807. It also appeared, that there was a. dam in the stream below the saw-mill, by which the water was turned into the ditch or race running to the land or place of Hiram Evans, from 1807 to 1832; that the dam extended across the stream, and was made of stones, earth, and sods; that part of the water of the said stream was turned by the said dam into the said race or ditch, and the rest ran over the dam and down the natural channel; that some part of the water always ran down the natural channel, except when the season was very dry; that the clam was a trifling one, and might be made by a single man in an hour j that the water, which by means of the said dam was turned into the race or ditch running to the land or place of the plaintiffs, always flowed in and upon said land, from 1807 up to 1832; that by the water thus running through the race or ditch, nine or ten acres of the meadow-land of Hiram Evans, or of the plaintiffs, was regularly watered; that the water was diverted from running into the race or ditch in April, 1832; that in consequence thereof, there was not so much hay in 1832, as in 1831, Toy ten or twelve loads ; that when the meadow was watered by means of the race or ditch it averaged from two to three tons per acre, and that after it was diverted from the race or ditch it did not yield more than a ton per acre; that the race or ditch watered two meadows on Hiram Evans’s, or the plaintiffs’ place, running round both; that it ran through the barn-yards of Robinson and H. Evans; that there was a place in Evans’s barn-yard and also in the field to water the earth or stock; that after the water was turned off in 1832, those places were left and remained dry; that the water v'hen running through the race or ditch was convenient to the house, and being soft water, was used for washing and other purposes; that Caleb.Evans owned no meadow below the dam, nor was there any meadow on his place; that the dam across the stream was taken down by the defendants or some of them, on or about the 1st of April, 1832,-and as often as it was rebuilt from time to time by the plaintiffs, between that date and the bringing of this suit on the 14th of May, 1833, it was prostrated by the 'defendants, and the water thereby diverted from the race or ditch through which it had run to water the meadows of the plaintiffs. One witness testified, that he lived with Hiram Evans in 1832; that the water was turned off in the beginning of April of that year; that Evans directed him to build a dam across the old channel to turn the water into the race or ditch again; that he built it accordingly, and that Daniel Hart senior and Daniel Hart junior tore it down, turned the water into the old channel, and said they would tear it down as often as it was rebuilt. Another witness testified, that in 1832 he helped the defendants to stop the water off; that when stopped off it ran down the old channel, and that before it was stopped off, it ran down the race or ditch towards Robinson’s; but that the Harts’ boys would not allow it so to run. Another witness testified, that the water was stopped entirely off, from 1832 to 1834; that when the dam was rebuilt, it was prostrated in less than an hour afterwards; that when the water was in the race, the stock were watered in the barn-yard and in the field; that when not in the race, the cattle had to be driven and watered at the old channel, about 400 yards off, and the water to wash with, had also to be brought from the same place. James McNally testified, that hie was at work at Hart’s quarry, when Mrs. Evans and another woman came there, and wanting water to wash, she put stones and sods together to dam the water so that it would run into the race, and that Daniel Hart removed the same. Eliza Zell testified, that she saw John and Jacob Hart throw stumps, dirt and things into the race leading to Hiram Evans’s, and that this was in 1832.
    On the trial, the defendants took several bills of exception to the admission and rejection of evidence.
    Defendants’ first bill was to the admission of the deposition of John Zell, an aged and infirm witness. This deposition was not on the paper-book, nor attached thereto.
    The defendants, to maintain the issue on their part, called Watson McNally, and offered to prove by him, that he saw the ditch or race before 1833, and saw the water running in it before this suit was brought, and that he never knew of it being cleaned before the suit was brought; and also offered to ask the witness the following questions:—
    “State whether it was cleaned afterwards, immediately after the arbitration in 1834, and what was the effect of the cleaning upon the flow of the water; and what depth was cleaned out of the said ditch, and whether it wanted cleaning; and whether, if the ditch had been dug deep enough, it might have afforded water enough to the plaintiff, Hiram Evans, and the other occupier of that farm, without even a dam.”
    The court rejected the evidence, overruled the offer, and sealed defendant’s second bill of exception.

    The defendants then offered to prove, by the same witness, that he helped Hiram Evans to erect a dam across this stream, in 1834, and the effect of that erection upon the water flowing in the stream, to exclude it from the natural channel, and that he, from observation previously made, had not noticed any such dam; and whether, in the opinion of the witness, a wing-dam, if erected in the stream, would not have been sufficient to turn a proper quantity of water into the race, for the supply of the farm of the plaintiffs, and at the same time to allow water enough to run in the old channel, to supply all that was wanted below.
    The court overruled the offer, rejected the evidence, and sealed defendants’ third bill of exception.

    The witness then testified, that he had known the stream of water since he was sixteen years of age; that he never knew there was a dam across it until ho helped to put one there; that the stream was a clever one. The. defendants then offered to ask him, whether there was sufficient water in the channel after the erection 'of a wing-dam, to run down the natural channel, and also down the race or ditch?
    Offer overruled by the court, and defendants’ fourth bill of exception sealed.
    The Avitness then proceeded, and stated, that he was thirty-four years of age; did not knoAV the property of the plaintiffs long before 1832, and that he had not taken much notice of the dams along that creek.
    The defendants’ fifth-bill of exception, was to the rejection of the following evidence offered by them: “ That Daniel Hart, jun., and Jacob Hart, two of the defendants, were minors in 1832; that they were not on the duplicate assessment list delivered to him as assessor, and from information, they were minors.”
    The defendants’ sixth bill of exception, AYas to the admission of evidence that Hiram Evans got the water used, in building the barn on the place, in April or May, 1833, before this suit was brought, from Sensenick’s run; that it Avas hauled, and that the mortar-bed was quite close to the old race or ditch in which the water used to run.
    Each of the parties propounded certain points to the court, which, with the answers of the court thereto, were as.follows:—

      Plaintiffs’ Points. — That in assessing the damages, they have -a right to take into consideration not only the annual profits actually lost by plaintiffs in consequence of the acts of defendants, and interest thereon, but also the loss in value to the land or freehold, and all the costs and charges of every kind to which the defendants have subjected the plaintiffs in attending to and carrying on the suit.

      Answer. — The measure of damages is the injury which the plaintiffs actually sustained by reason of the Avrongful acts proved to have been done by the defendants upon the premises. The jury will estimate the value according to the evidence.

      Defendants’ Points. — 1st. The plaintiffs can only recover by adducing evidence to sustain the allegations contained in their declaration. They must make out the wrong and the injury as they have laid it; and if they fail in that, they cannot recover.
    2d. The evidence being that Hiram Evans AYas in the exclusive occupation and possession of the land as tenant, and AYas entitled to all the hay from the meadow, to which the injury is alleged to have been done, the plaintiffs can only recover for a permanent injury to the inheritance; and in order to do so, they must declare specially, setting forth their seisin, the possession of their tenant, and the particular injury done to the inheritance; and must prove such injury as laid; in all which the plaintiffs have entirely failed, and cannot recover in this action.
    ' 3d. To authorize the jury to find against the defendants, a joint act ought to he proved; and the plaintiffs cannot recover for several acts done at several times by the different defendants, and such joint'acts ought to be in accordance with the allegations in the declaration.

      Answers. — 1st. The plaintiffs, to recover, must prove all the material allegations contained in their declaration. Proving these, they are entitled to such damages as the jury may consider as a just compensation for the injury they have sustained. Failing to prove them, the verdict should be for the defendants.
    2d. The evidence appears to be that Hiram Evans occupied the land on shares, and that the hay was to he fed upon the land. The water-course was a permanent advantage to the inheritance, and the taking of it away was an injury to the inheritance. I think the declaration in this respect is sufficient; and if the jury are satisfied that the injury has been proved as alleged, the plaintiffs are entitled to their verdict.
    3d. Answered in the affirmative.
    Defendants excepted to the charge, and the answers of court to points. The jury found a verdict for plaintiffs, for $350 damages. The defendants took this writ of error.
    Errors assigned. 1. The court erred in admitting the evidence on the part of the plaintiffs set forth in the first and sixth bills of exceptions.
    2. The court erred in overruling the evidence on the part of the defendant set forth in the second, third, fourth, and fifth bills of exceptions.
    3. The court erréd in their answer to the point propounded on the part of the plaintiffs.
    4. The court erred in their answer to the several points propounded on the part of the defendants.
    5. There is error in the general charge; in charging that it was only in case Caleb Evans should clear any meadow-ground below the race, that he was to be allowed the use of the water — and in all that part of the charge relating to the construction of the will of James Evans on the water-rights of his three sons, and in charging that Caleb was entitled to the use of the water for the mill whilst he used it, and for no other purpose was he entitled to ■ the water after it left the mill, unless he -cleared some meadow-ground below the race.
    Also in charging that the action may be sustained by proving that the defendants did in fact divert the water from the plaintiffs’ meadows, though it was done by removing the dam, which had stood time out of mind across the old channel, for the purpose of turning the stream into the ditch or water-course, conveying the water to those meadows, and not by damming up and obstructing that water-course.,

      Franklin and Champneys, for plaintiffs in error.
    Evidence embraced by the second, third, and fourth bills, offered to show that dam was unnecessary. Enough water for both. Injury resulted more from default of plaintiffs in not cleaning race than from act of defendants. Fifth bill. — Two- of defendants were minors under dominion of father. Old Hart was in possession and occupancy of tract on which dam stood. Injury complained of not a trespass. Nothing injurious per se, but only in its consequences. If not evidence to justify, it was at least to mitigate damages. Sixth bill. — Offer to prove special damage not set forth in narr.: 2 Chit. Pl. 788 and 789; 1 Chit. Pl. 386-7. As to points: All the plaintiffs were reversioners except Hiram Evans. Ought to declare specially. 3 Maulé and Selwyn, 234, cited 3 Chit. Pl. 434; Comyn’s Dig. Act. Case, fifuisance B, and Precedent; 2 Chit. Pl. 383; Ripka v. Sergeant, 7 Watts & Serg. 9; Ives v. Cress, 5 Barr, 118. Answer to second point of defendants is manifestly wrong. Taking away water may be injury to inheritance, but plaintiffs have not so alleged in declaration: but merely the temporary injury ef deprivation of use of water. Court were wrong in construction put on will. Caleb Evans was entitled to use waste water.

      Stevens and Jenkins, contri,
    cited 2 Saund. 113, note 1; Ang. on Water-Courses, 154, 159; 2 Co. Litt. 334 — 5—6; 2 Ch. Pl. 386; Spigelmoyer v. Walter, 3-Watts & Serg. 540; 2 Bl. Com. 209; Roper on Husband and Wife, -215, 32 Law Lib. 136; Cro. James R. 399; 1 Strange, 229; Cro. Eliz. 96; 1 Ch. Pl. 55; 1 Wend. R. 380.

      May 29.
   Coulter, J.

There is nothing in the first error assigned, so far as it regards the admission of the deposition of John Zell. In general it is true, that when special damages are claimed for an alleged tort, they ought to be set out in the narr., either as inducement or distinct ground of superadded damages. But where the damages arise necessarily and inevitably from the tortious act, it would seem to be unnecessary: the tortious act being itself the gravamen of the action, and the necessarily resulting injuries being only the measure of the damages. Thus it has been held that in an action of slander it is sufficient to state and aver that the defendant called the plaintiff a thief, without averring that thereby the character of the plaintiff was injured; because the law implies and intends such injury and damage to follow the act complained of: 1 Saund. 243, b. note 5; 1 Chit. Pl. 385. But in an action for false imprisonment, evidence that the plaintiff was stinted in his food when confined, or suffered in his health thereby, cannot be received without being specially alleged: because these things did not necessarily result from, the illegal confinement: Lowdrich v. Goodrich, Peake’s N. P. 46; Pitit v. Addington, same book, 62. These cases illustrate the distinction, it being a general rule that in pleading it is not necessary to state that which the law implies. When the plaintiff complains of an injury resulting from a public nuisance, then he must aver and state the special damage, inasmuch as the law does not presume or imply damage to any particular individual from the public offence. But for a private nuisance, such as turning the course of an ancient stream, so that it no longer flowed through the grounds of the plaintiff, it is an intendment of the law that the plaintiff was thereby injured by the loss of the water. And evidence to show that he was thereby compelled to haul water from a distance to supply the uses of the stream, is only giving the jury certain data from which they may estimate the real damage, and is not claiming damages for a distinct injury not necessarily resulting from the nuisance.

The damages resrdting from the diversion of the stream by the defendants from the lands of the plaintiffs, were implied by law, • and the extent of that damage was the legitimate object and purpose of evidence (2 W. C. C. Rep. 381); and that the plaintiff was compelled to haul water for necessary and unavoidable purposes from a distance, when the stream, if allowed to flow in its ancient channel, would have supplied him at hand, was evidence within the principle. The residue of the first error assigned is therefore dismissed.

The second error assigned is the rejection of evidence offered by defendant to his second, third, fourth, and fifth bills of exception.

The evidence in the fifth bill could not have been admitted, being of the same character as hearsay evidence, and belonging altogether to that class. The evidence in the second bill was incompetent, because it proposed to show a hypothetical state of facts, on the ground as they might have been made to exist, more than a year after suit brought, by a witness who then examined the ground.

The evidence proposed in the fourth bill was properly rejected, because It could neither justify, excuse, or mitigate, as the will of James Evans gave no authority to any person to divert the water from the grounds of the plaintiff, by either tearing down the old dam 'which had long caused it to flow there, or by obstructing the race in which it flowed. The court answered correctly to the point proposed by plaintiff’s counsel, “that the measure of damages is the injury which the plaintiff actually sustained by reason of the wrongful acts done by the defendants in the premises, and that the jury would estimate this injury according to the evidence.”

The court answered the third point proposed by defendants’ counsel affirmatively, as they requested; and the first point is answered substantially as they requested. It must have been an oversight, therefore, to assign these answers for error.

The answer to the second point proposed, to wit, that the watercourse was a permanent advantage to the inheritance, and the taking it away was an injury to the owners of the inheritance, for which the suit is instituted, would lie, is not erroneous, but correct.

As to the errors assigned to the general charge, there is nothing in them.

The possession of the plaintiff below is sufficiently set out. The averment is that the plaintiffs were, at the time of the torts committed, “ seised in their demesne as of fee.” Seisin includes possession. It is true there is also seisin in law, and that would be sufficient to maintain this action; and actual and corporal seisin. But when an individual avers that he was seised, we may take it for granted that he was in possession, as the words will import that state of facts. But I am not to be understood as intimating that it was necessary to state an actual pedis possession or to prove it, in order to enable the plaintiffs to maintain this action. It was an injury to the freehold as well as to the actual possession. The gist of the action, as laid in the narr., is diverting the water-course from its ancient channel; and whether this was done by digging through the embankment, or throwing mud into the bed of the channel, is of no consequence. There was evidence of both. The construction which the court put on the will of James Evans in relation to the water-rights of the persons claiming under it, was obviously correct: and this I believe notices all the errors assigned.

Judgment affirmed.


author: Per Curiam.

text:
    In re Penn Township.
    The Supreme Court will not entertain an exception to the omission of a cleric in the order of the court helow to commissioners appointed to divide a township, which, if made or pointed out in the court below, might have been supplied, and the objection obviated without prejudice to the rights of any one.

      May 8. From the proceedings returned to this court, on certiorari, directed to the Court of Quarter Sessions of Lancaster county; it appeared, that at January Sessions, 1845, the following petition was presented to the said court:—

      “The subscribers, inhabitants of the Township of Warwick, in said County, respectfully represent,

      “ That the erection of a new township, by dividing the township of Warwick into two, would be beneficial to the inhabitants of the said township of Warwick. That the division-lines which the petitioners propose are as follows, viz: Beginning in the centre of the public road leading from the city of Lancaster to Elizabeth Furnace, at the division-line of Manheim and Warwick townships, near Shober’s brick house, at the crossings of two public roads, from thence along the centre of said road, to the division line of Warwick and Elizabeth townships, by the way of the town of Warwick, Bricker’s store and Lexington.

      “ The petitioners therefore pray the Court to appoint three impartial men to inquire into the propriety of granting the prayer of the petitioners, to make a plot or draft of said township, and the division line proposed therein, all of which they shall report to the next Court of Quarter Sessions, together with their opinion of the same, and that the Court take such order thereupon as to them shall appear just and reasonable, according'to law in such cases made and provided.”

      Upon this petition, the court appointed and ordered as -follows :—
    “ Whereupon the Court do order and appoint,
    “ Henry Shreiner, Esq., David May, Esq., and John Eorney, to view, and if they see cause, or any two of them see cause, to divide the said township of Warwick in two distinct townships agreeably to the prayer of the petitioners, and make such report thereof, with a draft or plot of such division, and the courses and distances of the same, to the next Court of Quarter Sessions, according to law. The viewers, before they enter upon their duties assigned them, shall be respectively sworn or affirmed, to perform the duties of their appointment impartially and according to the best of their judgment, and shall state in their report that they were sworn or affirmed.”
    The commissioners reported, that they had erected the new township as proposed and prayed for by the petitioners; that in their opinion, the said erection and division was necessary; and that a plot or map of the said township, with the division-line, was annexed to their report.
    To this report a number of exceptions were filed, which the court after argument overruled, and granted a review. The order of the court to the reviewers appointed, was similar in form and words, to that issued and directed to the viewers or commissioners., The report of the reviewers was similar in every respect to that of the commissioners; and the court, after due consideration, confirmed the said report, erected the new township as described in the same, and ordered and decreed that it be called “Penn.” No exception was made in the court below to any deficiency in the order of the court as issued to the commissioners, nor in that to the reviewers.
    The following are the only material exceptions assigned in this court:—
    1. Neither the order to viewers nor the one to reviewers, are according to the act of Assembly, in this, that neither of them required the viewers or reviewers “to report their opinion” upon the said -division of the township as prescribed by law, and which is essential to the validity of such order. Eor this reason, each of said orders was in itself a nullity.
    . 2. Any order or' decree for the erection of a new township, made upon a report to an order thus defective, is a nullity, and for this reason the order of court erecting Penn township was void.
    Ford, for exceptants.
    The paper-book shows that there never was an order of court issued in this case, in conformity with the provisions of the act of 15th April, 1884: Pam. Laws, 537. Neither the order to viewers nor the one to reviewers commanded them to inquire into the propriety, &c., as specified to be done by the act. This is fatal; and no after proceedings on the part of the court, or lapse of time, can cure the defect. The viewers must be sworn to do what the act requires. Under these orders, they were not. The case is precisely like that of Harrison Township, 5 Barr, 447.

      Long, contra.
    The commissioners acted in accordance with the petitioner, and they have expressed an opinion, which was not done in the case of Harrison Township. If this exception had been taken in the court below, the court might have directed the order to be amended; it might have been amended by the petition. Maus v. Maus, 5 Watts, 315. A writ of scire facias may be amended at any time; it may be amended after the counsel have argued the cause, and even after judgment, declaration allowed to be amended.
    Nearly three years have elapsed since this township has been established.
    Here it appears the viewers inquired into the expediency of dividing the township. The court, in making the decision in Harrison Township, I think do not expressly state, that when the petition and report are in conformity to the act of the legislature, that an omission in the order would be fatal, although the opinion inclines that way.
    Here the commissioners understood that the order required them to inquire into the propriety of granting the prayer of the petitioners, and report.

      May 15, 1848.
   Per Curiam.

The principle adopted in the case of the Allentown Road, 5Whart. 445, is applicable to this. The court refused to quash the proceedings for a similar misprision of the clerk in the order, which might have been set right below. That, it is true, was a road case; but the present is analogous to it, and entirely within the reason of it. Had the deficiency in the order been pointed out, the court would have supplied it, and referred the report back to the viewers for their sanction of it; and thus the objection would have been obviated without prejudice to any one. It consequently ought not to prevail here.

Proceedings affirmed.


author: Rogers, J.

text:
    Mohler’s Appeal.
    Where an annuity is charged, on land devis'ed, the alienee of the devisee becomes personally liable for the arrears accruing during the continuance of his estate; and the Orphans’ Court have jurisdiction to decree the payment thereof, and of the lands charged, if they are deficient, and of the personal estate of the alienee. ’ nX

    Appeal from the Orphans’ Coiu't of Lancaster county.

      May 9. The petition of Catherine Mohler set forth a devise of certain lands by H. Mohler to his son John at a certain valuation, 500i. of which he directed should remain on the real estate of his son during the life of his widow the petitioner, to whom the interest thereof should be annually paid, and after her death the principal among testator’s children. That the testator subsequently sold part of the land to his son, so that on his death but two pieces of land passed under the will charged with the annuity. That John Mohler the devisee had accepted the devise, and conveyed the land to Frey the defendant. That they had paid certain sums on account of the annuity, but that there were large arrearages due while he held the land, and that John Mohler the devisee had died insolvent, and no administration had been granted. The prayer was for general relief.
    A supplemental petition was filed against the administrators, the heirs of Frey, who had died since the filing of the original petition.
    The answer set up was that when Frey purchased the land there was no special contract made respecting this annuity. That the petitioner had recovered two judgments de terris in the District Court, in actions against Frey, brought for the arrearages sought to be recovered. Under these, parts of the land had been sold and the proceeds were paid into court; and they denied that the estate of Frey was responsible for the arrearages, but they were exclusively chargeable on the particular tract.
    The petitioner gave some evidence that when Frey purchased the land, 500i. was deducted from the purchase-money and retained by him; that he had paid the annuity for some years; and it was proved the land would not sell for the amount of the arrearages of the annuity.
    On the hearing, the court below said they were willing to make a decree for payment of the legacy out of the land (which the petitioner declined), but were of opinion they had no authority to make a personal decree against Frey.

      Frazer and Penrose, for appellant.
    That the devisee was personally liable by acceptance is not disputable, and that his assignee taking the profits is also liable is settled: Long v. Long, 1 W. 267; Duppa v. Mayo, 1 Saund. 282; Hirst v. Rodney, 1 W. C. O. R. 37; 1 Hr. 221. His actual possession is immaterial: Weidner v. Foster, 2 Pa. R. 26; 3 W. & S. 531. The remedy was formerly against the land or the profits. But it is now held that the remedy in the Orphans’ Court has avoided the remedy by ejectment, and as the proceedings there are analogous to those in a court of equity, the present' remedy is the proper one.

      Stevens and Ohampneys, contrá.
    Where a court of law has jurisdiction, and has exercised it, courts of equity do not interfere, nor will they aid the party who has selected his jurisdiction: 1 Stor. Eq. 559. Here there has been a prior judgment at law for the same cause. After this the petitioner cannot commence a new proceeding for the purpose of adding a personal liability after obtaining a judgment which binds the realty for the same cause: Cooke v. Grraul, 1 Paig. 407; Hammond v. Washington, 17 Pet. 10.'

      May 18.
   Rogers, J.

(after stating the case.) — Instead of dismissing the petition, we apprehend it would have been the more correct course (as there was a general prayer for relief) to ascertain the amount due, and order the same to be paid out of the real estate. But this is immaterial as the case stands, for this court have the power to make the same decree the Orphans’ Court ought to have made.

I do not understand the Orphans’ Court as ruling that the petitioner is not entitled to recover from the assignee or alienee the arrears of the annuity due the widow, while he had the actual possession of the land, or to deny that he was personally liable. But they held that the remedy in the Orphans’ Court under the act of the 24th Feb., 1834, is a proceeding in rem against the land, the money to be levied out of the real estate charged, that being the only part out of which the legacy is payable. They are of opinion that the petitioner, under the general prayer for relief, is not entitled to a decree fixing the alienee personally with the debt. If this be so, it must be admitted her situation is to be regretted, as she has a right without a remedy, contrary to a rule which courts of justice never lose sight of, that when the law confers a right it affords a remedy. The right, as has been repeatedly held, being clearly established, it belongs to the courts to adopt a suitable remedy: 3 Br. C. 123; 1 Salk. 21; 1 East, 226; 1 Chit. Pl. 83. In this view of the case, the first question is, has she a right to demand from the alienee the arrears of the annuity accruing during the time he was in the actual receipt of the rents, issues, and profits — is he personally liable for its payment ? It is part of the case that he is in arrears, and that he received the rents, issues, and profits. This being put beyond dispute, it follows that he is personally liable. This we think clear on principle and authority. That the devisee of land charged with legacies is personally liable, is ruled in Lobach’s case, 6 W. 240; Glen v. Fisher, 6 Johns. C. R. 33; and in the recent ease of Hoover v. Hoover, 5 Barr, 351. Judge Bell, who delivered the opinion of the court, has entered so fully into the question, that any further remarks would be supererogatory. And the same rule applies to alienees. They are liable from privity of estate during the time they continue to occupy the premises charged with the payment of the legacy. That the legatee or annuitant has a personal remedy against the alienee during the time he is in possession and receives the profits, is ruled in Duppa v. Mayo, 1 Saund. 282; and Long v. Long, 1 W. 267. Mr. Justice Kennedy says, that when an annuity or rent is charged on land of the testator by his will after his death, an action of debt will lie in favour of the legatee to recover it as often as it shall be in arrear, and enforced against those who have succeeded to the possession of the lands, and have become the pernors of the profits. Eor these positions he cites 1 Saund. 282. There the action was debt, and the judgment a personal judgment, and not de terms. The liability of the pernor of the profits, as that learned and correct judge truly observes, does not arise ex contractu, but is cast upon them by their acts and conduct in taking possession of the land, and receiving the profits, the land being the fund appropriated by the testator in his will for the payment of the annuity or rent. (Vide Taft v. Morse, 4 Metcalf, 523, to the same effect.) And this is perfectly just; because he takes the land cum onere, receives the profits with full notice of the charge and the nature of it, and because he can escape further liability by transfer of the land; for as his liability arises from privity of estate, he remains charged only while he continues the owner. But in this case, the alienee is personally answerable on another and distinct ground. He retained.the 500Z. as part of the purchase-money, and as the testimony shows, promised to pay the annuity, and in truth complied with his contract for several years, but afterwards, forborne reason which does not appear, suffered it to fall in arrears. 8 W. & S. 391; 9 W. 490.

This right being established, we must next inquire as to the remedy, for where there is a right we are bound to afford the party adequate relief; and in this state, where we have no courts of chancery, this must be either in the common law courts or through the medium of the Orphans’ Court. And that the latter is the only court which has jurisdiction in the case of legacies charged on land, since the passage of the act of 24th February, 1834, has been repeatedly ruled. By that act it is provided, that when a legacy is charged upon and payable out of real estate, it shall be lawful for the legatee to apply by bill or petition to the Orphans’ Court; and whereupon the court having caused due notice to be given to the executor and to the devisees or heir of the real estate charged with such legacy, and to such other persons interested in the estate, as justice may require, may proceed according to equity to make such decree or order touching the payment of the legacy out of the real estate, as may be requisite and just. Under that act it is ruled, that the remedy is not only in the Orphans’ Court, but, for reasons which it is needless to repeat, they haVe exclusive jurisdiction. Thus, in Downer v. Downer, 9 W. 60, it is ruled that since the passage of that act the remedy by ejectment, heretofore used to recover a legacy charged on land, is taken away, and that the only remedy is in the Orphans’ Court. The same point is decided in Craven v. Bleakney, 9 W. 19, and in Read v. Read, and in the recent case of Strickler v. Sheaffer, 5 Barr, 240. The point, therefore, is now settled, that the remedy to recover a testamentary charge on land is exclusively in the Orphans’ Court. Nor is the remedy confined to the proceeding against the executor, the heir, or devisees, but extends to an alienee, who is clearly embraced in that portion of the act which directs notice to be served on such other persons as may be interested in the estate. Notice is required to be given to them, in order to afford them an opportunity to defend fro interesse suo. But the party aggrieved is not only entitled to a remedy, but an adequate remedy; a remedy commensurate with the injury he has sustained. For this purpose, the power of the court is most ample. In Craven v. Bleakney, the court say that it is almost impossible for a court of common law to do justice in many cases of charges on land, and that this can only be- effected through the Orphans’ Court, which has the same power in the premises as a court of chancery. And in Downer v. Downer, 9 W. 60, the court say that the act of 1834 is a remedial act; that it would impair its usefulness to give it a narrow construction. The act provides for calling all parties in interest before the court, who have power to do all a ■ court of chancery could do, and under their plastic hands to administer justice in the most complete and ample manner.

Now unless the court decrees payment by the alienee, and makes him personally liable for the amount due, it is clear the petitioner is without remedy; for it is a mockery to decree payment in the manner proposed. by the Orphans’ Court, when it clearly appears that a sufficient sum cannot be raised for that purpose by sale of the lands charged.' This would be a result peculiarly unjust in this case, as this state of things has been produced by his unwarrantable refusal to pay in due and proper time a debt for which he was unquestionably liable. -It would enable him to benefit himself by his own wrong. The act gives the Orphans’ Court authority to proceed according to equity, to make such decree or order touching the payment out of such real estate as may be requisite and just. If we construe the clause according to its letter, there is plausibility in the construction of the Orphans’ Court; but this narrow construction would be contrary to the whole scope of this remedial act, the evident design of which is, to give to that court every power in relation to the premises, which a court of equity would have. The Orphans’ Court are bound to make such a decree as may be requisite and just. The words of the act are satisfied by a decree ordering the money to be made by sale of the lands charged in the first instance; its spirit, by a decree ordering that in case that should be proved insufficient, the residue to be raised personally from the alienee or his personal representative. In this form only can justice be done to all the parties; and this view of the law, we think, carries out the intention of the legislature.

The law having vested exclusive jurisdiction in the Orphans’ Court, they have jurisdiction over the subject-matter, and it becomes necessary, to prevent a failure of justice, to decide that the legislature did not intend by the phrase, “out of such real estate,” to designate the part out of which alone the legacy was to be paid. The cases cited show that the party aggrieved has the same remedy in the Orphans’ Court as a court of equity; and that the petition would be relieved in equity is very clear from the following authorities: 1 Ven. 165; 2 Ven. 421; City of London v. Richmond, 2 Atk.; Philpot v. Hoar, 506. In the case of Barns v. Dixon, 1 Vesey, sen. 41, Lord Hardwick, on a will to pay legacies out of the profits of the estate, decreed the payment as the yearly rents should arise. The Court of Chancery have fully recognised the principle that the pernor of the profits is personally liable. They have uniformly decreed accordingly, as appears by the cases cited — Taft v. Morse, 4 Metcalf, 523.

It is alleged that judgment has been had for the arrears of rent, now claimed, at least in part, de terris, that this is a bar to a proceeding to charge the alienee personally. If the land was of value to levy the money by sale, there would be no necessity for this proceeding. But as it is notoriously otherwise, the parties are compelled to invoke the aid of the Orphans’ Court. A judgment in rem, without satisfaction, is no bar. The remedies are cumulative, even if an action lies at common law. 'In Bantleon v. Smith, 2 Bin. 152, it is ruled, that a judgment without satisfaction works no extinguishment of rent. The landlord has concurrent remedies, which he has a right to pursue until he obtains actual satisfaction. In Snyder v. Kunkleman, 2 W. 426, the same point is decided. In that ease, it is ruled, that taking a note by a landlord from the tenant for the amount of the rent due, does not take away the right of distress. And that a lessor who has recovered a judgment in an action upon a covenant to pay rent, may, notwithstanding, distrain for the same rent. In Gordon v. Curry, 5 Bin. 552, it is ruled, that a ground landlord does not lose his lien for the rent due, by taking a bond and warrant of attorney for the arrears and entering up the judgment. The result of the cases is, that it is not the judgment but actual satisfaction, which works the extinguishment of the debt, or the remedies to enforce it. The cases cited are analogous to this case, and in our opinion rule the point in favour of the petition.

The decree directed payment by the administrators of Frey of the arrearages of the annuity, to be levied in the first instance out of the land charged with the annuity, a sale of which was ordered, residue out of the assets, &c.. of Frev.


author: Bell, J.

text:
    Hart’s Appeal.
    A lunatic, whose real estate had been sold by order of court, for his maintenance and payment of his debts, died intestate, unmarried, and without issue, father or mother, brother or sister of the whole blood, uncle or aunt, but leaving to survive him, three brothers and a sister of the half-blood, children of his mother by a second marriage, and ten cousins, children of deceased paternal uncles. The half-brothers ,and sisters were of the blood of the intestate, through his mother, who was a descendant of the paternal great-grandfather of the intestate and his cousins, the common ancestor from whom the intestate remotely derived a part of the estate by descent, devise, or gift, and was also related by blood to the intestate’s grandfather, from whom another portion of the estate was remotely derived by devise and descent; the. persons last seised thereof, immediately before the intestate, having been his father and a paternal uncle who died intestate. At the time of the death of the intestate, an unexpended balance of the fund made by the sale of his real estate, remained in the hands of his committee: Held, first, that this balance was to be regarded as land for the purposes of distribution; and, second, that the half-brothers and sister were entitled to it in equal portions, in preference to the cousins.
    The facts set out in a case stated for the opinion of a court, are not evidence in a subsequent proceeding, nor for any other purpose than that for which they were submitted.
    Appeal by Daniel Hart, John Hart, Jacob Hart, and Catherine Hart, from the decree of the Court of Common Pleas of Lancaster county, in the matter of the distribution of the balance in the hands of Thomas Lloyd, committee of the person and estate of Caleb Evans, deceased, who was a lunatic, amongst his heirs and legal representatives.

      May 10. In 1838, Caleb Evans was duly found to be a lunatic, and that he had been so for the last fifteen years. In 1839, his committee petitioned the Court of Common Pleas for a sale of his land for the payment of his debts and for his maintenance; which was ordered accordingly, and the land sold. In 1845, the lunatic died unmarried, and without leaving issue, or father or mother, or brother or sister of the whole blood, or uncle or aunt on the father’s side; but leaving three brothers, and one sister of the half-blood, the children of his mother Sarah, by a subsequent marriage, and ten cousins, the children of his deceased uncles, William Evans, Nathan Evans, and James Evans, on the side of his father, Caleb Evans, deceased. The final account of his committee, which, was duly confirmed, exhibited a balance of f>2,391.23-J-, which constituted the balance or fund for distribution. This balance was claimed by the half-brothers and sister of Caleb Evans, the lunatic and intestate, they being the children of his mother by her second marriage, upon the ground that she was a descendant of Nathan Evans, the elder, from whom they alleged the real estate came; he having been her great-grandfather, as well as the great-grandfather of the ten cousins of the lunatic, omhis father’s side, who claimed as the nephews and nieces, the next living kindred of Caleb Evans, the father, and of John Evans, the uncle of the intestate, from or through both of whom the estate was derived in different portions, by devise, descent, or gift, and who were the persons last seised thereof, immediately before the said intestate. Nathan Evans was the common ancestor of both the parties claiming the fund. He died in 1164, leaving three sons, Nathan, James, and John. James Evans died, leaving five sons, viz: William Evans, Caleb Evans, the father of the intestate, Nathan Evans, John Evans, the uncle, from whom part of the land was derived by the intestate, and James Evans. John Evans died, leaving a daughter, Mary, who married David Edwards, and died, leaving a daughter, Sarah Edwards. Caleb Evans, the son of James, who was one of the sons of Nathan Evans, the elder, married Sarah Edwards, the daughter of Mary Edwards, who was the daughter of John Evans, another of the sons of Nathan Evans, the elder. The said Caleb died, leaving a widow, the said Sarah, and one son, Caleb, the intestate. Sarah, the widow of' the said Caleb, and mother of Caleb the intestate, married Eavid Eart, by whom she had four children, viz: Daniel Hart, John Hart, Jacob Hart, and Catherine Hart, the. appellants. Caleb Evans, the father of Caleb, the intestate, had four brothers, viz
    1. William Evans, who died leaving children, wtJfive of whom survived their cousin, Caleb, the intestate, viz: Edmund, James, Barton, William, and Margaret Evans.
    2. Nathan Evans, who died, leaving children, three of whom survived their cousin, the said intestate, viz: Gabriel, David, and Sarah Evans.
    3. John Evans, who died intestate and unmarried, and without issue.
    4. James Evans, who died leaving two children, who survived their cousin, the said intestate, viz: Hiram and Rebecca.
    The following table exhibits the relationship of the parties

    The land, from which the fund for distribution was raised, was derived by the intestate in the manner following
    The proprietaries of Pennsylvania, by patent, dated December 31,1733, granted to Nathan Evans, the elder, and common ancestor of both the parties claiming the fund in this case, two hundred acres of land, situated in the then county of Chester, now Lancaster county. On the 20th of May, 1753, Nathan Evans, for and in consideration of ten shillings, and of natural love and affection, conveyed by deed, of grant, bargain, and sale, the one-half part of the said two hundred acres, unto his son, James Evans. On the 21st of May, 1761, the said Nathan Evans made his last will and testament, and died in 1764. By Ms will he gave to his son Nathan, 51.; to his son John, 1001.; and to his son James he devised and bequeathed as follows: “ It is to be observed respecting the place whereon I now dwell, that my son James hath made a purchase of the half -of it, for which he hath a title.” “ Lastly, the rest and residue of my real and personal estate, wherever to be found, I bequeath unto my beloved son James Evans, his heirs and assigns for ever.” James Evans became thus seised of the entire two hundred acres; and being so seised, the proprietaries, by patent of 22d February, 1765, granted to the said James Evans, his heirs and assigns, a tract of land adjoining the aforesaid tract of two hundred acres, containing eighty-eight acres and six perches; both tracts containing about two hundred and eighty-one acres and allowance. James Evans, by his will dated the 18th of March, 1800, gave to his son James the premises on which the said son then lived, containing one hundred and eight acres; to his son John the premises on which he, John, then lived, containing one hundred and eight acres; and to his son Caleb, the father of Caleb, the lunatic and intestate, the premises whereon the testator then lived, containing sixty-five acres. Each of the tracts thus devised, was composed of the land purchased by as well as devised to James Evans, the testator. He also devised to his son Caleb, the elder, several lots adjoining the said sixty-five acres. Caleb Evans, the elder, being thus seised of eighty-two acres of land, under his father’s will, died intestate in 1802, leaving a widow and one son, the intestate, to whom the said land descended. John Evans, one of the sons and devisees of James Evans, died intestate, unmarried, and without issue, leaving three brothers, Nathan, William, and James Evans, and a nephew, Caleb Evans, the intestate, the only issue of his brother Caleb, who had died before him. The said John Evans was seised, at the time of his death, of one hundred and eight acres of land, devised to him by his father, James Evans, deceased, which, under proceedings in partition, was parted and allotted amongst the brothers and nephew of the decedent. The whole real estate which Caleb Evans the intestate became thus seised of, was sold, after he was found a lunatic, by his committee, for his maintenance and payment of his debts.
    The foregoing are, in substance, the facts in this case, as reported by the auditor.
    The auditor reported the balance of the fund for distribution, after deducting expenses of audit, &c., to be $2,215.32J, but made no distribution.
    Whether the fund for distribution was to be distributed amongst the ten cousins of the intestate, who were the next of kin of Caleb Evans, the father of the intestate, and of his uncle, John Evans, deceased, or whether it was to be distributed amongst the half-brothers and sister of the intestate, who, through their mother, Sarah Edwards, by her second marriage with Daniel Hart, their grandmother Mary Evans, and their great-grandfather John Evans, were of the blood of Nathan Evans the elder, and common ancestor of both parties claiming the fund, was the question submitted by the auditor, in his report, for the decision of the court below.

      The report was re-committed to the auditor, with instructions to make distribution. The auditor thereupon, upon the 22d of Feb., 1847, made distribution of the fund to and amongst the ten cousins of the intestate, and filed his report. To this report exceptions were filed by the counsel of the half-brothers and sister.
    On the 28th of April, 1847, his Honour, Judge Lewis, made the following decree: “April 28th, 1847, the parties having been heard by their counsel, and the court being of opinion that the decision of the Supreme Court, in Lloyd v. Hart, 2 Barr, 473, upon the case stated for the purpose of determining the right to the money, is binding upon the parties, it is ordered that the report of the auditor be confirmed.” From this decree, the brothers and sister of the half-blood, viz: Daniel Hart, John Hart, Jacob Hart, and Catharine Hart, took an appeal to this court.
    Errors assigned: 1. The court erred in directing a distribution of the estate of the deceased among his cousins: it should be divided among, and is by law distributable to the brothers and sister of the half-blood of the deceased, being of the blood of the ancestors from whom it came to the intestate.
    2. The court erred in deciding that the judgment of the Supreme Court, in 2 Barr, 473, upon the case stated for the purpose of determining the right to the money between the committee and the administrator, is binding upon the parties to this proceeding.

      N. B. Browne, for appellants.

      Stevens, contrsL

      May 15.
   The opinion of the court was delivered by

Bell, J.

For the purposes of distribution, the fund in court is to be regarded as land (Lloyd v. Hart, 2 Barr), and, therefore, the question raised in this appeal is to be treated precisely as though Caleb Evans, the younger, had died seised of the estate, by the sale of which the fund was made.

By the express provision of the sixth section of the act of April 8, 1833, the half-brothers and sisters of the -intestate would have taken an estate in fee simple in the land, if not excluded by the operation of the ninth section. This provides “ that no person who is not of the blood of the ancestors or other relations from whom any real estate descended or by whom it was given or devised to the intestate, shall in any of the cases before mentioned take any estate of inheritance therein,” &c. The counsel of the appellees insists that this proviso looks and is to be limited to a proximate and immediate descent, gift, or devise to the person last seised, and consequently, that in ascertaining the fountain of inheritable blood we cannot go further back than the ancestor or other relation from whom the intestate immediately received the estate. Were this so, it would not set aside the appellants in favour of kindred of the full-blood, for the half-brothers and sister are of the blood of both John Evans, the uncle, and Caleb Evans, sen., the father of the intestate, the last preceding owners, through the common ancestor, Nathan Evans. As is said by Mr. Justice Story, in Gardner v. Collins, 2 Peters’ S. C. R. 87, a person is, with the most strict propriety of language, affirmed to be of the blood of another, who has any, however small a portion of the same blood derived from a common ancestor. But the rule of descent is not as contended for. Lewis v. German, 5 Barr, 165, and the cases therein cited, settles that in order to ascertain who are the “ ancestors or other relations” within the meaning of our statute, you must ascend to the first purchaser — to him who brought the estate into the family: for he is the propositus from whom the inheritable blood is to be traced. In this instance, a portion of the land sold came by descent, devise, or gift from Nathan Evans, the great-grandfather of Caleb Evans, jun., and a portion from James Evans his uncle, with both of whom, as we have seen, the appellants are connected by ties of blood. They are, therefore, clearly entitled to the money in court in equal proportions.

Nor is there anything in the decree pronounced by this court in Lloyd v. Hart, which, as the court below seems to have thought, operates to bar this right. That was a case stated between other parties, for the simple purpose of ascertaining whether the avails of the land was to be treated as real, or personal estate. Having effected that object, the decree made therein is not to be-used- as an instrument to defeat an interest residing in others not parties to it, a result which was not in the contemplation of any one. Where a case is stated to procure the judgment of a court on cer.~ tain facts submitted, effect is not to be given to it beyond those facts, and certainly not to compromise a titlp springing from a different condition of things. It is not even evidence, in a subsequent proceeding, of the facts stated; for circumstances may be conceded as existing to raise a question of law, without intending to admit them as true, and even without believing them. (McLugan v. Bovard, 4 W. 313; Darlington v. Gray, 5 Wh. 502.) But an examination of the case stated in Lloyd v. Hart, will show that the important fact of the relationship of the Harts to the Evans family was not even hinted at, and therefore it could not have been intended to raise the question presented by this record. It is enough, however, that it was between different parties, and is therefore inconclusive of the present proceeding.

Decree reversed; And it is ordered that the record be ■ remitted into ’said Court of Common Pleas, with directions to decree a distribution of the fund to David Hart, John Hart, Jacob Hart, and Catherine Hart, the half-brothers and sister of the said intestate, in equal proportions.


text:
    Sheaffer’s Appeal.
    Bequest of a sum of money charged on land, to testator’s widow, “ of which she shall receive the interest, so long as she lives and remains my widow,” passes but a life estate, though there be no disposition made of the principal.
    Devise to A. for the sum of §6000 — §1500 for her own legacy, and §1500 to B. for life, and the residue, excepting §300, to other legatees. The undisposed portion and the §1500, after the death of B., pass under the intestate laws to the personal representatives of testator.
    The Orphans’ Court have jurisdiction to compel payment of a charge on land not bequeathed, to which the personal representatives are entitled under the intestate law.
    From the Orphans’ Court of Lancaster county.

      May 11. The petition of Sheaffer, guardian of Ann Myer, set forth that Ileistand bequeathed to his wife “$1500, which shall remain in this property, situate, &c., of’ which she shall receive the interest, which is $90, to be paid quarterly if she may want it, and if not, yearly, as she may request it, only so long as she lives and remains my widow.” To his daughter Elizabeth he devised the land before described in fee “ for the sum of $6000 — $1500 for her own legacy and $1500 for my wife, of which she shall only receive the interest -of six per cent, quarterly, as she may stand in need of it, which shall be paid only so long as she remains my widow and shall live.”
    He further bequeathed a legacy of $1500 to his son Peter, who he directed should have a room in the house for life, and be maintained by his sister Elizabeth, “ who shall be his sole and whole heir, and none other after his death.”
    To “the'two children” of his daughter Nancy he bequeathed $500 each, payable out of the land — and to her son $200, also payable out of the land.
    That Elizabeth, the devisee, and her husband entered on the land.
    That testator left a widow, who is dead, leaving a will, of which Strickler was executor. He also left a son, Peter, who is now dead, without issue, and unmarried; Elizabeth, the devisee, who is living; and two grandchildren, daughters of testator’s daughter Nancy, who died before him. One of these granddaughters is since deceased, and the petitioner is the guardian of the survivor.
    The petition then set forth that no disposition had been made of $300 of the $6000, the consideration-money charged on the land by the will, or of the $1500 charged thereon for the life of the widow, after her decease, and prayed general relief.
    The devisee of the land, and Strickler, the executor of the testator’s widow, demurred to the petition.
    The court (Lewis, P. J.) dismissed the petition for want of jurisdiction.

      FllmaJcer, for appellant.

      Franlclin and Frazer, contrfi.
    The widow is entitled to the legacy absolutely: for a devise of the interest of a sum of money is an absolute bequest of the money. The court has no jurisdiction but in case of legacies- — which these are not, but of an undisposed surplus., They cited 6 W. 14; Ward on Leg. 18; Law Lib. 18.

      May 29.
   Bell, J.

The sums of money brought into controversy by this proceeding being claimed by the executor of Anna Heistand, the widow of the testator; by Elizabeth Groff, his daughter and devisee; and by the guardian of Ann Myers, his surviving grandchild, it becomes necessary to inquire into and settle their respective pretensions.

The first of these parties insists that the testator intended to give to his widow the principal sum of $1500, charged upon the land devised to the daughter, postponing only the time of payment for the convenience of the devisee. This claim rests upon those words in the will in question, importing an absolute bequest to the testator’s wife: “ Also I will $1500 unto my beloved wife Anna, which said sum shall remain on this property,”'&c. “I will and bequeath unto my daughter Elizabeth Groff, and her heirs for ever, this my property, &c., situate and being in Mount Joy and Rapho townships, for the sum of six thousand dollars, $1500 for her own legacy, and $1500 for my beloved wife Anna,” &c. These general words standing alone, would undoubtedly have carried the whole interest in the subjéct of them. But they are restrained and controlled by what immediately follows, directing that the legatee shall receive only the interest of the principal sum set apart, during her life or widowhood. The language manifesting an intent that she should take nothing beyond this, notwithstanding the general words of donation before used, is, in my estimation, too strong and explicit to be ■ gotten over. These terms of restriction are employed in both the instances in which mention is made of the subject of bequest, as if the testator was anxious to guard against misapprehension. “Of which,” he says, speaking of the principal sum, “she shall receive the interest,” “ only as long as she lives and remains my widow.” In the immediately succeeding item, the same intent is repeated still more emphatically: “ Of which she shall only receive the interest of six per cent, quarterly, as she may stand in need of it, which shall be paid only as long as she remains my widow and shall live.”

Looking to all these provisions, it is, I think, impossible to arrive at any other conclusion than that the testator meant a particular sum should be set apart for the use of the widow during life or widowhood, not by absorption of the principal, but by the application of its annual interest. Had the direction been, after the general words of gift, that the widow should receive only the interest during life, there would have been some room for a construction placing the principal sum at her disposal; or, in default of this, leaving it to go to her personal representative. But it can hardly be presumed there was an intent to restrict her to the interest during her widowhood, and yet to endow her with the principal immediately on her remarriage. This would be to defeat a condition which very obviously, in the contemplation of the testator, attached upon the provision he was settling for his future widow. She shall receive the interest “only as long as she lives and remains my widow.” That is, when she ceases to be my widow, she shall cease so to receive; but this would be altogether nugatory, if she were then entitled to the sum which produced the annual interest. In the particular event, to exclude her in terms from the enjoyment of the latter, and yet to admit her to the possession and use of the former, would be a contradiction which cannot fairly be imputed to the devisor. But upon the words of this will there are as good grounds for saying she should take the principal sums on her marriage, as that her executor should take it at her death. The extent of the testator’s bounty is limited equally by the condition of widowhood and continued existence. These are both used by the same terms, and in the same sentence, to define the extent and duration of the gift. No distinction, verbally or otherwise, is made between them. If, therefore, the widow’s interest would have been terminated by a second marriage, of which there can be no doubt, her death equally determined it.

This conclusion does no violence to the rule of construction which regards a bequest.of the interest or produce of a legacy without qualification or limitation of continuance, as tantamount to an absoltte gift of the legacy itself, (2 Rop. on Leg. 333, and cases there cited; Garrett v. Rex, 6 W. 17); for this does not hold where, from the nature of the subject or the context of the will, it appears the interest only was intended for the legatee. Nor is it in conflict with our case of Hellman v. Hellman, 4 Rawle, 440; for though that bequest is in some of its features like this, it differs in the essential particular, that the payment of interest was unlimited by a specified time or event; and therefore the court, looking to the whole will, thought the clause but cautionary and directory to the devisee of the land, to withhold payment of the principal under circumstances that might make its receipt disadvantageous to the beneficiary. But this cannot be predicated of the present bequest. There is nothing within the four corners of this will that can operate to impress upon the clauses which qualify and restrain the general words of gift, the character of a mere caution, powerless to limit the interest of the legatee within the wide scope of the language first employed. On the contrary, as I have endeavoured to show, these clauses are entirely efficacious for such a purpose. It results that Mrs. Heistand’s interest in the subject of the bequest ceased with her life.

The claim preferred on the part of the grandchild is also resisted by the devisee, on the ground that the sums charged on the land, and which are ultimately undisposed of by the will, sink for the benefit of the devisee. Upon this point there is contrariety of decision in the English courts; and under the conflict of authority, it is, perhaps, not always easy to determine, in these cases, when a sum of money charged on land devised, of which no ultimate disposition is made, shall go to the devisee, and when to the heir at law, of the devisor. But the weight of authority, as of reason, I think strongly inclines to support the principle stated by Lord Eldon in Sidney v. Shelley, 19 Ves. 363, that if the devisor has himself created the charge, and to the extent of it, the intention appears on the face of the will not to give the estate to the devisee, it will, to the extent of the charge, the particular object failing, go to the heir, and not to the devisee. This is the doctrine of Arnold v. Chapman, 1 Ves. sen. 108, which was a devise to Chapman, he paying to the executor 10001., with a devise over of all the remainder of the estate, after payment of debts and legacies, to the Foundling Hospital. The bequest of the 1000?. to the hospital being void, by the statutes of mortmain, a question arose whether it should go to the heir, or sink for the benefit of the devisee. Lord Hardwick gave it to the heir, observing “This devise is'-a sale to Chapman for 1000?., and the purchase-money arising from the estate, must go to the person entitled to that estate:” and he concluded his judgment by saying, “ as the charge therefore is well made on the estate, but not well disposed of by reason of the act, it must be considered as between the heir and hospital, as part of the real estate undisposed of, and must be for his benefit.” A similar principle prevails in the strictly analogous class of cases, where particular sums, part of the avails of lands devised to be sold, are excepted out of the devised produce, but are not themselves disposed of. It is said to be clear on the authorities that such sums belong to the heir: 2 Pow. Dev. 86. An instance of this is furnished by Collins v. Wakeman, 2 Ves. jun. 683, where, out of the proceeds of certain lands devised to be. sold, and which the testator directed should be considered as part of Ms personal estate, he gave, after several pecuniary legacies, 10001. to his executor and trustee, to be disposed of according to any instructions h'e might leave in writing; and all the residue of his personal estate and effects he bequeathed to M. W. The testator having left no instructions as to the 10001., a contest arose in respect to it, between the residuary legatee, the next of kin, and the heir at law. Lord Rosslyn decided in favour of the latter, observing, “that where the court has no direction from the testator to whom the money arising from any part of his estate shall go, it rests with the heir at law.” Looking to the declaration of this will, that the proceeds of the realty should be considered as personalty, this must be regarded as a very strong case in support of the rule I have stated. I do not deem it proper to swell this opinion by a citation of the decisions on the subject beyond the two cases, to which reference has been made, as most strongly illustrative of the principle which we think must govern this controversy. The cases are collected by Mr. Powell in Ms treatise on Devises, and there-reviewed with Ms usual ability.

That to the extent of the burden imposed on the land, our testator did not intend to give the estate to the devisee, except where he had expressly otherwise directed, is manifest from the whole scope of Ms will. In fact, it may be regarded as a conveyance of the land in consideration of the sum of $6000 minus the sum of $1500 given to the devisee. With the exception of $1500 set apart for the son Peter, and which upon Ms death was to go to the devisee, it is clear the testator intended that the latter should pay to some one the balance of the $6000 as the price of the land devised. But he failed to make an ultimate disposition of the $1500 charged on the estate for the benefit of his widow during life, and a balance of $300, part of the sum of $6000. These sums, therefore, as part of the purchase-money arising from the estate, must, according to the doctrine of the cases I have noticed, go to the heirs at law, as the persons who otherwise would have been entitled to the estate. For this purpose it is to be considered as if so much land as was of the value of $1800 had been suffered to descend. (Cruse v. Barley, 3 P. Wm. 20.) Under the events that have had place here, as stated in the petition of the guardian, but two persons survive, who, under our system, sustain the relation of heirs to the testator. These are Elizabeth Groff Ms daughter, and Ann Myers Ms granddaughter, standing in the place of a deceased daughter. The sums in dispute are therefore to be equally divided between them.

This is the conclusion at which the Orphans’ Court correctly arrived. But, conceiving that the testator died intestate as to the two sums which remained specifically undisposed of, it was thought the court could not entertain jurisdiction of the petition under the 59th section of the act of 24th Feb., 1834.' Prior to the making of this statute, our common law courts, in the absence of a chancery jurisdiction, had been driven by necessity to devise a form of action for the recovery of legacies charged on land. The result was the cumbrous remedy pointed out in Brown v. Furer, 4 S. & R. 213, and Gause v. Wiley, Ib. 509. Every day’s practice proved this to be so inconvenient, and indeed inadequate, .that it was always viewed with disfavour and resorted to with reluctance. This inconvenience is not felt in those states that'have courts of chancery, which take cognizance of every case of testamentary charge on land, and afford a remedy commensurate with the exigency of each case. This consideration produced the 59th and ■succeeding sections of the act of 1884, by which the Orphans’ Court of each county was endowed with power to adjudicate in cases of legacies charged upon and payable out of lands, upon the application of the legatee by bill or petition, and to proceed according to equity to make such decree touching the payment of the legacy out of real estate, as may be requisite and just. It is a highly remedial act, and is to be liberally expounded in furtherance of a remedy without which our courts would be in a measure powerless to afford adequate redress in many cases. We are not, therefore, to restrict its operation by a literal adherence to the very terms in which it is conceived, but may, without impropriety, bring under its active influence every case that can reasonably be embraced within its spirit. This was done in Mohler’s Appeal, decided at the present sitting, where it was held the act gave jurisdiction to the Orphans’ Court to decree the personal liability of an alienee of land charged with the payment of an annual sum. The decree of the court below was reversed, because by a too rigid adherence to the words of the statute, it was thought payment could only be ordered out of the “real estate” charged. The court said “the act is remedial, the evident design being to give the court every power relative to the premises, which a court of equity would have.” And again, “the words of the act are satisfied by a decree ordering the money to be made by a sale of the land in the first instance; its spirit, by ordering that in case that should prove insufficient, the residue should be raised personally from the alienee or his personal representatives.” In Downer v. Downer, 9 W. 60, which was ejectment to compel payment of a testamentary charge of money on land, it was held, that although the interest the plaintiffs had under the will was not technically a gift or legacy, it might be considered an interest payable out of the estate devised, and, therefore, the plaintiffs were bound to proceed for its recovery in the Orphans’ Court, under the act of 1834. “This,” say the court, “is a remedial act, and it would impair its usefulness to give it a narrow construction. The act provides for calling all the parties in interest before the court, who have power in the premises to do all a court of chancery could do, and under their plastic hands to administer justice in a complete and ample manner.” The principle of these cases tends to establish the statutary remedy as available wherever chancery would interfere to enforce payment of a charge on land in the nature of a testamentary gift, or springing from a testamentary disposition. Such is the present instance. The fund in which the petitioner seeks to participate, is created by the will of the testator, charged on the land devised, and payable by the devisee to those legally entitled. It is by operation of the will that a right to the fund exists; and surely an appropriate remedy for its recovery ought not to be defeated, because the persons who are entitled to it are not specifically named. In such a case, chancery' would interfere on the application of the parties entitled; and indeed, in a variety of instances, chancery alone could so marshal the conflicting interests as to do full and complete justice. This proceeding is therefore within the purview of our statute, which contemplates the application of the equitable remedy. In truth, we should unnecessarily narrow the construction already put upon the act, did we not hold that the Orphans’ Court possesses jurisdiction wherever a pecuniary interest, created by a last will, and partaking of the character of a gift, is payable out of land in the hand of a devisee or' his alienee. The Orphans’ Court committed an error, therefore, by dismissing the petition of the guardian, and its order must be reversed.

Decree dismissing the petition reversed, and the devisees of the land ordered to pay to the guardian of the petitioner her share of the sums of $1500 and $300, charged on the land and undisposed of by the will.