author: Asnew, J.

text:
    Davidson & Wife versus McCandlish & Son.
    1. Insolvency of the husband is not a condition precedent under the Married 'Woman’s Act (April 11th 1848), to recovery against husband and wife, On a contract for necessaries for herself.
    2. The wife is a member of the family, and necessaries for herself are included in “ necessaries for the support and maintenance of the family.” In the first instance, it is necessary only to prove her contract, and that the articles were such necessaries.
    3. Bear’s Estate, 10 P. F. Smith 430, distinguished.
    May 15th 1871.
    Before Thompson, C. J., Ag-new, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1871, No. 67.
    This was an action originally brought before a justice of the peace by T. McCandlish & Son against Robert M. Davidson and Elizabeth his wife, for goods sold to the wife, with the purpose of charging her separate estate. The justice having rendered judgment for the plaintiffs, the defendants appealed to the Court of Common Pleas, where the case was tried before Graham, P. J., on the 17 th of January 1871.
    The evidence for the plaintiff was that at the request of Mrs. Davidson, they sold her, about April 11th 1867, a silk dress for $32.29, with trimmings for it, amounting to $10.13, together with other articles of clothing for herself; also, that Mrs. Davidson had separate property, and that she promised to pay for the goods out of it; there was no direct evidence that the husband was insolvent, but there was evidence that he was in bad credit.
    In the course of the trial, several bills of exception on questions of evidence were sealed, and a number of points submitted upon which the court was asked to charge; none of which it is important here to state, except the fourth and fifth points of the defendants, which with their answers are as follows:—
    4. Plaintiffs cannot recover against Mrs. Davidson, unless they have proved either that the debt claimed was contracted before marriage, whilst she was competent to contract — or afterwards as a feme sole trader, or that it was a debt contracted for necessaries after her husband had deserted her, or neglected or refused to support her.
    And if neither of these points have been proved — which they are not — the verdict must be for the defendants. And these facts cannot be presumed against a married woman. They must be proved, and her declarations that she would pay the account, or her acts in getting the goods and promising to pay for them out of her separate estate, does not make her liable, as neither of the above points are proved.
    Answer: “We cannot answer this point as ^requested. Proof of desertion or refusal by the husband, or neglect to support his wife, is not required to enable the plaintiffs to recover in this case, as we have stated in our general charge.”
    5. There is no evidence in this case that would bind the estate of Mrs. Davidson for the debt claimed by plaintiffs, and the verdict should be for the defendant.
    Answer: “We cannot answer this point as requested. On the contrary, our opinion is that the evidence on part of plaintiffs, if you believe it, will justify a recovery by plaintiffs. But the evidence is for the jury and not for the court.” v In his general charge, Judge Graham said:—
    “ * * * The law does not require that a husband shall first desert his wife, or the wife shall be put to the humiliating submission that her husband has neglected and refused to support her before she can charge her separate estate to feed and clothe herself and children. The husband may he willing and ankious to provide for his family, but by reason of disease and infirmity, or other cause, totally unable to do so. Under such circumstances it would be cruel to require a separation, before the wife could contract a debt for the support of herself and family upon the credit of her separate estate; and there is no provision in the law to countenance such a construction. But defendants’ counsel contend with great earnestness that before judgment can be recovered against husband and wife, the insolvency of the husband must be first proved, and the opinion of Agnew, J., is relied upon to sustain this position. In Bear’s Estate, he says ‘ In suits against husband and wife the law carefully guards the separate estate of the wife, and after judgment obtained in a joint action, requires that execution shall first issue against the husband alone, and if the officer executing the writ shall return that no property of the said husband can be found, then an alias execution may be issued which may be levied upon and satisfied out of the separate property of the wife.’ * * *
    “ Your first inquiry then will be, were the purchases made by Mrs. Davidson ? * * * If the purchases were not made by Mrs. Davidson there can be no recovery. If they were made by her and under a promise that she would pay for them out of her separate estate, as both the plaintiffs testify, then a further inquiry arises, were the purchases necessary for the support of herself and family ? What are necessaries is a fact for the jury to determine. The list of articles purchased may have been all for her own use. But in this list is a silk dress at $82.90, and it is objected to, that it was not necessaries within the meaning of the Act of Assembly. In determining this question you will take into consideration the social position of Mr. Davidson and wife. * * * If you consider this purchase of a silk dress was wasteful, useless and unnecessary extravagance on the part of Mrs. Davidson, not necessary to her comfort or required by the social position she occupied, then reject it. On the contrary, if you consider it was necessary to her comfort and happiness to enable her to appear among her associates in a garb suitable to her position in the society with which she associated, then we think it would be a harsh construction of the law to say that a wife may not purchase a silk dress with her own money, although her husband may have squandered his patrimony in censurable extravagance. But the question whether these articles of dress were necessary, is for the jury and not for the court to determine, and to you we submit it.”
    The verdict was for the plaintiffs for $66.34. ,
    The defendants took a writ of error and assigned for error the charge and the answers to their points.

      M. Williams and W. S. Miller, for plaintiffs in error,
    cited Act of April 1848, § 3, Purd. 700; Murray v. Keyes, 11 Casey 384; Heugh v. Jones, 8 Id. 432; Bear’s Estate, 10 P. F. Smith. 430.

      F. F. Beltzhoover and Gr. H. Groetz, for defendants in error.
   The opinion of the court was delivered, May 18th 1871, by

Asnew, J.

The bills of reception to the exception of evidence are presented imperfectly in the assignments of error; as if the evidence had been received generally, while each was materially qualified by the judge. In the first bill it appears that the evidence was received reserving its effect upon the recovery, and therefore the question of its effect was carried over into the charge. But there was direct evidence of the contract being made by Mrs. Davidson, she herself having purchased the goods. Her subsequent admissions were, therefore, only corroborative. So also in the second bill assigned for error, the evidence was received only to show the purpose of the payment of the money to Major Rhoads, leaving the appropriation to be governed by other evidence.

The only question in the case which deserves notice is whether the insolvency of the husband must be proved before a recovery can be had against husband and wife in an action founded upon her contract for necessaries for herself. This would not admit of a question were it not for the misapplication to the case of the decision in Bear’s Estate, 10 P. E. Smith 430. The 8th section of the Act of 11th April 1848, relating to the estates of married women, contains no such provision of insolvency, as a condition precedent to recovery. It is only after recovery that the question of the husband’s ability to pay arises. The execution must first go out against the husband alone, and a return of no property be made, before execution can go against the wife. It is sufficient to support the action, in the first instance, if the contract of the wife be declared upon, and proved; and that it was for necessaries for the support and maintenance of the family. She is herself a member of the family, and of course necessaries for herself will be included. The insolvency referred to in the opinion in Bear’s Estate had reference to a very different state of facts. There the wife had died before suit, leaving a separate estate, and her husband surviving her. The survivorship of the husband cast the burthen upon him. No action could be brought against the husband and wife, and of course no execution could first go out against him, and then against her. Now admitting that in equity the debt survived against the separate estate of the wife, it is obvious it could do so only on the ground of the husband’s insolvency. The creditor therefore will not be permitted to take his debt in the first instance out of the estate of the wife, for this would frustrate the primary liability of the husband to support his own family, and east it upon the separate estate of the wife. The right to come in upon the estate of a deceased wife, is not within the letter of the act, but only its equity; and hence the husband’s inability to pay the debt at the time -of her decease, is an essential condition to payment out of her estate. We discover no error in the charge of the learned judge, and therefore affirm the judgment.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Wertz’s Appeal.
    1. A testator devised his “ whole estate, real, personal and mixed,” to his two sons, “subject however to the following reservations, to wit: * * I give to my daughter Rachel Masden, $500; also, &c., * * * it is further my will that all the above-mentioned legacies be paid by my two sons as soon as my youngest daughter Margaret shall arrive ” at twenty-one. Held, to be a charge on land passing by the general devise to the sons, both by the express words of the will, and by blending real and personal estate together in the gift to the sons.
    2. In answer to a petition in the Orphans’ Court, for the payment of Mrs. Masden’s legacy, it was alleged that it had been satisfied under an agreement by building a house for her. If the court had dismissed the petition on that ground, the party would have been remitted to his common-law action, but this would not have destroyed the jurisdiction of the Orphans’ Court to decide upon the petition.
    3. That the legacy was charged on land was enough to give the Orphans’ Court jurisdiction. '
    May 18th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of Blair county: No. 8, to May Term 1871..
    This was a proceeding by the administrator of Rachel Masden, deceased, against John Wertz, executor and devisee, and Solomon Wertz, devisee of Jacob Wertz, deceased, to recover a legacy under the will of the decedent, proved August 16th 1848.
    The clauses in the will under which the claim was made are the following: — ■
    “And it is further my will, and I do hereby give and bequeath my whole estate, real, personal and mixed, to my two sons John and Solomon, their heirs, executors, administrators and assignees, for ever, subject, however, to the following reservations, to wit: It is my will and I do hereby give and bequeath unto my oldest daughter Rachel the sum of five hundred dollars; * * * also to my youngest daughter Margaret Ellen the sum of five hundred dollars. And it is further my will, and I do order that all and every of the above-mentioned legacies be paid by my two sons John and Solomon as soon as my youngest daughter Margaret Ellen shall arrive at the age of twenty-one years, and without interest until the time.”

      Margaret Ellen, the youngest daughter of the testator, attained the age of twenty-one on the 1st of April 1847. Rachel Masden died January 10th 1856.
    On the 26th of April 1856, her administrator presented a petition to the Orphans’ Court, setting out the foregoing facts, and averring that the legacy was a charge on a tract of land (which was described in the petition) devised to John and Solomon Wertz, the defendants, and praying for a decree that the defendants should pay the legacy.
    The answer dénied that the legacy was a charge on the land devised; and further averred that Rachel Masden, the legatee, made a verbal contract with Solomon Wertz, defendant, that he should huild a house for her on his farm, in which she was to live during her life, and at her death he was to take the house at a fair valuation and pay the same to her heirs and legatees; that the legacy bequeathed to her should be applied to building the house, and that she should furnish any additional sum of money necessary to pay the cost of erecting it; that the legacy was not sufficient, and by her authority Solomon collected $200 for her from Michael McOue, and applied that sum to the erection of the house, which was completed May 21st 1853 ; that he notified her that the house was ready, but that she never took possession of it during her life; that the house was not worth to him what it cost, but that he was willing to take it at a fair valuation and account, and pay the representatives of Mrs. Masden the amount of the valuation.
    An auditor was not appointed, but there was evidence taken by the defendant as to the terms upon which the house was to be built; some witnesses said that at Mrs. Masden’s death, Solomon Wertz was to take it at a valuation which was to be paid to her heirs; one witness said that “ upon her death he was to pay the legacy to her heirs, but nothing was said about a valuation.”
    On the 2d of May 1870, the court decreed “the payment of the legacy and the interest thereon, amounting to $1192.50 and the costs by Solomon Wertz, and that the petitioner levy execution against said Solomon Wertz as well as the lands charged by the said will with the payment of the said legacy, and without prejudice, &c.
    The defendant appealed to the Supreme Court, and there assigned the following error :—
    “ The court erred for want of jurisdiction, in decreeing the payment of the legacy, first, because the legacy was not charged under the will on the land; and, secondly, if under the will the legacy was charged on the land, it was discharged and paid under the agreement, by the legatee, having expended it in the construction of a house for her by the respondent. The remedy of the petitioner was in the Common Pleas, for the value of the building.”

      S. Calvin, for appellant.
    The legacy was not charged on the land : Miltenberger v. Schlegel, 7 Barr 241.
    The legacy was satisfied. It was not taking a second security ; that is to be determined by the intention of the parties: Jones' v. Johnston, 3 W. & S. 276.

      S. S. Blair, for appellee.
   The opinion of the court was delivered, May 25th 1871, by

Sharswood, J.

This was a proceeding in the court below under the Act of Assembly of February 24th 1834, § 59, Pamph. L. 84, providing a remedy in the Orphans’ Court, wherever a legacy is charged upon land. There is but a single assignment of error, and that is for want of jurisdiction. For this two reasons are stated: First, because the legacy was not charged under the will on the land, and second, that if charged it was discharged and paid by an agreement between the legatee and devisee of the land. It is very clear that this last reason does not affect the jurisdiction of the court, which attaches by reason of the original charge, and has of course power to decide the question whether the legacy has been paid or satisfied directly by money, by release, or by accord and satisfaction, as was attempted in this case. If it was meant to assign for error the decision of the court below upon that question, the assignment is clearly contrary to Rule VI., 6 Harris 578, which declares that “ each error relied on must be specified particularly and by itself. If any specification embrace more than one point or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.” It is very true that if the court below after hearing had dismissed the petition on the ground that the accord set up was a bar, the party would have been remitted to his common-law action under that agreement, but it is to confound the plainest distinctions to maintain that when a defendant has made out a good defence to the plaintiff’s demands, that destroys the jurisdiction of the court and of course its power to decide at all.

We have really before us then but one question, whether the legacy to Rachel Masden under the will of her father Jacob Wertz was a charge upon the land devised to his two sons John and Solomon. “And it is further my will and I do order, that in case of my decease, I do hereby give and bequeath my whole estate, real, personal and mixed, to my two sons John and Solomon, their heirs, executors, administrators and assignees for ever, subject however to the following reservations, to wit: It is my will and I do hereby give and bequeath unto my oldest daughter Rachel, the sum of $500.” Then follow various other legacies. Nothing could much more clearly express a charge, than a devise subject to the payment of the legacy: Newman’s Appeal, 11 Casey 339; Holliday v. Summerville, 3 Penna. Rep. 533. But apart from the force and effect of that word, it is well settled that a general devise blending the real and personal estate together creates the legacies a charge on the realty: Tucker v. Hassenclever, 3 Yeates 294, affirmed in the High Court of Errors and Appeals, 2 Binn. 525; Witman v. Norton, 6 Binn. 395; McLanahan, v. Wyant, 1 Penna. Rep. 111. In Tower’s Appropriation, 9 W. & S. 103, the words of the will were, “ To my nephew T. I giv.e and bequeath all my estate real and personal, he paying the legacies hereinafter mentioned,” — and they were held to create a charge upon the land devised. “An intent to charge,” said Chief Justice Gribson, “has been implied by the English courts from -a devise of the residue, real and personal, after payment of legacies: whence a supposed design that the devisee should have nothing till the legacies were first taken out of the land. We went a step, further in McLanahan v. Wyant, 1 Penna. R. 96, when we inferred a design to charge a particular legacy from a blending of the real and personal estate not of the residue, particular parts being excepted: and this too though other legacies were expressly charged. That case' has become a rule of property, and it is therefore not to be shaken.”

It is very clear, therefore, that the legacy to Rachel Masden was charged on the real estate devised to John and Solomon, and this was enough to give the court jurisdiction. But had it also been separately assigned as an error that the court below did not decide that the agreement set up was a sufficient discharge of the legacy, we think it would not have availed the appellant. Apart from all questions under the Statute of Frauds, we think the weight of the testimony is that as the $500 of Mrs. Masden’s legacy, and $200 other money of hers collected from Michael McOue as alleged in the answer, went into a house built by Solomon Wertz on his own land, the $500 was to he accounted for on her death, and repaid by him to her estate. One of the appellant’s own witnesses so states the agreement — and it is much more reasonable than what the other witness testified, that Solomon was to have the house at what it was worth at his death; the latter witness being at the time a girl of only twelve years of age.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Rudy versus Ulrich et al.

    1 In an issue devisavit vel non, on the allegation of undue influence by the mother of an illegitimate child, the legatee in the will, the unlawful cohabitation of the mother with the testator, is not of itself sufficient evidence from which a jury could infer undue influence.
    2. The testator had subsequently to the will in controversy executed a paper as a will, in which there was a clause of revocation of former wills ; this will had been found invalid in an issue on the ground of undue influence. The court, in this case submitted the question of undue influence as to the clause of revocation, and the jury found there was no undue influence as to the revocation. Held, that the paper was not evidence of revocation.
    3. The “other writing” in the Wills Act of April 8th 1833, declaring the revocation of a will, is not a will, and need not be proved before the register. Miter, when the revocation is in what purports to be a will disposing of property.
    4. The verdict and judgment in the issue on the latter paper being against the will as an entirety, were conclusive in this issue.
    5. A will may be contested in whole or in part, and may be void in part and otherwise valid.
    6. Dean v. Negley, 5 Wright 312, distinguished.
    May 18th and 10th 1871.
    Before Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lebanon county: Of May Term 1871, No. 51.
    This was an issue devisavit vel non, directed by the Court of Common Pleas under a precept from the register, to try whether a certain paper writing was the will of John Yerkes, deceased. The parties to the issue were Jacob Rudy, guardian of David Yerkes (an illegitimate son of the testator), plaintiff, and Elizabeth Ulrich and Isaac Ulrich, her husband, and Polly Bordner and Isaac Bordner, her husband, the defendants.
    Elizabeth Ulrich and Polly Bordner were daughters of the testator. The will had been lost after the death of the testator.
    The first two questions directed by the issue related to the existence and contents of the paper ; the others were:
    -“3. Was the said testator, at the time of the execution of the said last will and testament, of sound mind, memory and underderstanding ?
    “ 4. If any such will was executed, was the same procured by duress, fraud and imposition and undue influence exercised over the mind of said deceased by a woman bearing an unlawful relation to him, or by any other persons ?”
    The plaintiff proved the existence and execution of the paper at the scrivener’s, about three miles from the testator’s house, its loss and the contents.
    He gave to each of his daughters one dollar, and made the following provisions:—

      “ I give and bequeath unto my son David, my real and personal estate, which shall be sold by the executor (hereafter provided), who shall pay the money into the hands of a guardian to be appointed for my son David; he shall also have the best bed in my possession, and, if at any time, he becomes competent to manage his own affairs, one-half of the money shall be paid into his own hands; he shall also be put to a place where he will be kept cheapest and best.
    “ After the death of my son David, the balance shall be equally divided between the children- of my daughter Polly, wife of Isaac Bordner, with the exception of Elenorah, who shall have twenty-five dollars more than any of the rest.”
    This will was made about the 1st of July 1865.
    The plaintiff here closed.
    The defendants then proved the execution of another paper, dated August 31st 1869, purporting to be the will of the same testator, and offered it in evidence. They proved also, under objection, and in connection with the offer of the paper, that when it was written the testator said that he wished to revoke all other wills — and that he was then of sound mind.
    The plaintiff objected to the admission of the paper, because “ the will having been filed in court, cannot be given in evidence without giving the whole record, of which it forms a part by being filed.”
    The court admitted the paper as evidence per se, independently of any record, its effect to be determined thereafter. By this will he directed as follows:—
    “ Item, It is my will, and I do order and direct, that my son David and Catharine Rudy shall have all my property, both real and personal, equally among them as long as they both live, and if anything is left after their deaths, then the children of my daughter Polly, wife of Isaac Bordner, shall have the balance equally divided among them.
    “ The ready money that I have left after my debts are paid shall be used for the purpose of improving the land and house, — that is repairing the house.
    “All my persona] property shall be sold after my decease, with the exception of one bed, two cows, and two hogs, which shall belong to Catharine Rudy.
    “ My real estate shall not be sold as long as Catharine Rudy lives.
    “I make, constitute, and appoint Jacob Wolf to be the executor of this my last will and testament, hereby revoking all former wills by me made.”
    The defendants further proved: That the wife of the testator had died seventeen years before; Catharine Rudy (or Kessinger) came to live with him shortly before the wife’s death, with two children of her husband Kessinger, who was living; she had a child, the ward of the plaintiff, born at the testater’s house whilst she was living with him, whom the testator recoghised as his; this child was about twelve or thirteen years old at the trial; Catharine was about forty years of age; was healthy; the testator was sickly; was over seventy years of age at his death. He often complained that she was after him for his things; sometimes wanted only the half; she wanted him to give it to her or bequeath it to her. He said for the first years they lived as man and wife; said she wanted all his things; that was the cause of their quarrelling; said she wanted him to make a will and give her everything; he would not do it and they quarrelled about that. She was very cross to him; sometimes whipped him; he generally gave up to her; her husband’s children lived with the testator. The defendants gave much evidence for the purpose of showing the tyrannical character of Catharine, the testator’s fear of her, and the authority and influence she exercised over him. His daughters, the defendants, left home on her account.
    The plaintiff then gave in evidence the record of an issue to try the validity as a will of the paper dated August 31st 1869, and the finding of a verdict against its validity. They proved that the issue was tried on the mental incapacity of the testator and undue influence used over him by Catharine Rudy; the case turned on her undue influence.
    He also proved that David Yerkes was helpless and idiotic; could not walk or talk, or take his own victuals, which had to be put into his mouth with a spoon, and that there was no prospect of his improvement. The testator’s estate was worth about $2800.
    During the trial there were a number of exceptions sealed for the plaintiff to the rulings of the court on questions of evidence.
    The third point of the plaintiff was :—
    “ The fact that Catharine Rudy and the testator cohabited together at the time the will was made, as stated by the witnesses— neither of them being then married — is not of itself sufficient to justify the inference that undue influence was used in procuring the will in question,, particularly as the testator acknowledged that the beneficiary under the will was his son, who is idiotic and helpless.”
    Answer: “ The fact that these parties lived together in a state of concubinage for some fourteen years, is well calculated to give her great influence over the decedent. This, together with the proof of Kate Rudy’s conduct towards Yerkes, is well calculated to show that she had great influence over him, and may very readily have been used to induce him to make a will in favor of her child.”
    The court (Pearson, P. J.) charged amongst other things :—
    “ On the 21st day of August 1869, the decedent made another will, containing a clause ‘revoking all former wills.’ This, the defendants contend, puts an end to the one now set up, executed in 1865. To meet this, the plaintiff shows that on an issue directed and tried in this court and between these parties, that will was found to be invalid, and there is proof that its validity was impeached because procured through the undue influence of Kate Rudy. It was certainly more favorable to her than the present, as it gave her one half of the estate and David the other half. A will may be void in part and otherwise valid, or it may be wholly invalid. If avoided by a judicial decision on account of incapacity of the decedent to make a will, or because not duly executed or proved, it is entirely invalid. If on account of undue influence it may be good for those parts not inserted through that influence, and the other parts avoided. One bequest or devise may be good, when there is no reason to believe it was improperly procured, whilst other parts may be avoided. This doctrine is well settled in the books. Therefore, the clause revoking all former wills may have effect, whilst the bequests of the will may be avoided for undue influence. Whether the intention to make the will in controversy was the unbiassed wish of th.e testator, or was brought about by the undue influence of Kate Rudy, must be decided by the jury. If she unduly influenced that clause, it will not have the effect to revoke the former will; if it was the uninfluenced wish of the testator, that will is revoked by the very words of the Act of Assembly. If she wanted the will of 1869 made for her benefit and that of her son, and to cut out Yerkes’s legitimate heirs, she might very naturally wish to have the other revoked. , It is entirely a question of intention, to be determined by the jury.”
    The verdict was for the defendants.
    The plaintiff took a writ of error.
    His 6th-assignment was the part of the charge given above.
    His 7th the answer to his 3d point.

      J. Funck, for plaintiff in error.
    As to the 6th assignment referred to Act of April 8th 1833, § 13, 14 Pamph. L. 257. This statute is to be strictly construed: Clingan v. Micheltre, 7 Casey 36; Kauffman v. Griesemer, 2 Id. 406; Reid v. Borland, 14 Mass. 208. Where a revoking clause is obtained by undue influence, it is no revocation of the former will: Laughton v. Atkins, 1 Pick. 535 ; Price v. Maxwell, 4 Casey 39; O’Neal v. Farr, 1 Rich. 80.
    D. Fleming (with whom was C. P. Miller), for defendants in error.
    As to the 6th error cited: Beard v. Beard, 3 Atk. 72; 4 Kent’s Com. 590; 1 Jarman on Wills, 154 and cases cited. 1 Williams on Ex’rs 141; Boudinot v. Bradford, 2 Dallas 268; Ellis v. Smith, 1 Ves. Jr. 17; Jones v. Murphy, 8 W. & S. 275 ; 1 Redfield on Wills, § 33, 37; Barksdale v. Hopkins, 23 Georgia 332.
   The opinion of the court was delivered, May 25th 1871, by

Sharswood, J.

This was an issue of devisavit vel non in the Court of Common Pleas on the precept of the register, before whom the copy of a paper-writing, alleged to have been lost, was propounded for probate as the will of John Yerkes, deceased. Ten errors have been assigned. We think that none of them have been sustained except the sixth and seventh. It will be unnecessary to consider the remaining assignments in detail. They present no questions which have not already been decided in McTaggart v. Thompson, 2 Harris 154, and Dean v. Negley, 5 Wright 312.

The plaintiff, however, was entitled to a direct affirmative answer to his third point. It was true, and the jury should have been so instructed, that the fact of the unlawful cohabitation of Catharine Rudy and John Yerkes was not, standing by itself without other evidence, sufficient to justify them in drawing the inference, that undue influence had been used by her to procure the execution of the will in question. However it might have been if the entire property or the bulk of it had been bequeathed or devised to Catharine Rudy, and John Yerkes’s own children disinherited in her favor — which was the state of the case in Dean v. Negley— yet the alleged will in this case was not of that character. John Yerkes undoubtedly believed David to be his own child, whatever the fact was. He always treated him as such, and calls him so in this paper. He was an idiotic, helpless boy — incurably so, beyond all hope of amendment — appealing, therefore, most strongly to every feeling of the heart of the parent to make such provision for the support and comfort of an unfortunate being whom he had been instrumental in bringing into the world. His estate was not large: real and personal it was only $2800; the interest of which, after deducting necessary charges, was not more than was required for this purpose. His other children were grown up, in the full enjoyment of their faculties — married and settled in life, and able to do for themselves. He directed the amount of his estate to be paid into the hands of a guardian to be appointed for his son, and if his son became competent to manage his own affairs one-half to be paid into his own hands, and after his death the balance to be equally divided between grandchildren — the children of his daughter Polly. It was a most reasonable, just and proper will under all the circumstances. Catharine Rudy had no personal interest in it, further than her natural affection for her child might prompt her to desire that some provision should be made for him. If she had brought it about by the influence of argument and persuasion, without the employment of undue means, it would have been unimpeachable on the mere ground of the unlawful relation she bore to the alleged testator. She could derive no interest from the bequest, except so far as it went to relieve her from the obligation of support. No court would have appointed her the guardian without requiring from her ample security. The presumption of undue influence did not therefore arise, as it would have done had the testament been clearly inofficiosum. The answer of the learned judge to the plaintiff’s third point implied indeed that it was correct — but we think the plaintiff was entitled to an express affirmance of it. What was said in answer to it might with great propriety have been added as a qualification or explanation — that the relation Catharine Rudy bore to the alleged testator was well calculated to give her great influence over him, and, together with the evidence of her conduct towards him, might induce the belief that it had been unduly exerted in favor of her child.

We are of the opinion that the instrument dated August 31st 1869, was not evidence to the jury of revocation of the will now in contest, executed in 1865. It was no doubt rightly admitted when it was offered, objected to and bill of exceptions sealed. It was offered, for all that then appeared, as a valid subsequent will, revoking all prior wills, and of course that in regard to which the issue on trial was awarded. No one can well doubt its admissibility in evidence at that time. But when the plaintiff in rebuttal had produced the record of the former issue, directed by the Register’s Court to try its validity, and the verdict and judgment against that instrument, in which these defendants were the parties -contesting it, it was no longer available for the purpose for which it had been introduced, and the jury should have been so instructed.

It may be freely conceded that admission to probate by the register was not necessary to give effect to the instrument of 1869 as a revocation of that propounded as the will of 1865. Otherwise the question between two wills could never be tried. It would be a race which could first be presented for probate. In the issue on either, the claimants under the other could be admitted to contest; and those under the second could undoubtedly set it up against the first, and the claimants under the first could impeach its validity. The Act of Assembly of April 8th 1833, §§ 13, 14, Pamph. L. 250, provides in effect that no will in writing shall be repealed otherwise than by some other will or codicil in writing, or by other writing declaring such repeal, executed and proved in the same manner as is provided in the case of an original will. There are two modes of revocation here pointed out, besides cancellation, obliteration, &c. First: another subsequent will or codicil duly executed and proved; and second, some other writing declaring the revocation. It is implied that this other writing is not a will, that is, an act of disposition or declaration of what a man intends as to his property after his death. There may be a separate written revocation, not intended to take effect as a will or codicil, which need not therefore be propounded to the register for probate. This is a very reasonable provision. A man may be absent from home at a distance from the place where his will is deposited, or it may be lost or mislaid, so that he cannot have access to it to cancel or destroy it. He may wish, however, simply to abrogate it without making another will, and so die intestate. In such case he may execute a paper declaring his intention, which provided it is signed by him and proved by two witnesses will be effectual. No probate of it in the register’s office is necessary. No letters testamentary or of administration cum testamento annexo are required to be issued upon it. But the case is different when the revocation is contained in what purports to be a will disposing of property. The words of the act point to this : “ other writing,” that is, writing other than a will. A subsequent will without a revoking clause as effectually repeals a prior will as with one. No doubt, as stated by the learned judge below, a will may be void in part and otherwise valid, or it may be wholly invalid. One bequest or devise may be good, whilst other parts may be avoided. But then it stands as a will for those parts which are good. A will propounded for probate may be contested in whole or in part. Had Catharine Budy obtained possession of the paper, and fraudulently inserted a clause in her own favor, the jury on the issue of devisavit vel non could have found against that clause, but that with that exception it was the will of John Yerkes. The paper would then have stood as his will, and by its own force, with or without a revoking clause, would have revoked all wills prior in date. The difficulty in the way of the application of the principles stated by the learned judge to the case in hand is twofold, in part technical and in part substantial. First: The verdict and judgment in the former issue were against the will of 1869 as an entirety, and, standing, unreversed, conclusive in this proceeding. The question of undue influence in obtaining that will, whether in whole or in part, could not be tried over again on this issue. Had it been found that any part of that paper was valid, not only the revoking clause but the appointment of the executor and the power of sale, it would establish it so far as a will, and overturn the former finding. If good as a will at all by the Act of 1833, it revoked the former will. This is the technical difficulty. The substantial one is still more serious. It cannot be known with any degree of assurance, sufficient to justify a legal judgment, that where there is a clause of revocation in a will making a certain disposition of property, that the testator really intended to revoke a prior will making a different disposition, except for the purpose of substituting in place thereof that contained in the second will. It would be making the testator die without any will at all, when it was clearly his intention, as drawn from his executing a paper purporting to be a will, not to do so. In Ex parte Ilchester, 7 Yes. Jr. 348, the appointment of a guardian was revoked, and another guardian appointed by a will not executed according to law. By the English statute a guardian may he appointed either by deed or will. The Master of the Rolls, Sir William Grant, said: There can he no „doubt that part of the intention was to revoke the appointment. But the question is, whether that was the substantive direct object, or only as ah incidental and necessary part of the ultimate object, and, whether it would ever have been entertained except with reference to that.” And again: “ I cannot conceive how an instrument inoperative in its direct purpose'can give effect to an intention of which I know nothing but by that purpose.” The soundness of this reasoning was acknowledged and applied by the Supreme Court of Massachusetts in a case of an instrument set aside and refused probate as a will, on the ground of undue influence: Laughton v. Atkins, 1 Pick. 585. It has been found, and indeed is conceded, that undue influence produced the will of 1869. To make it effectual, it was deemed necessary expressly to revoke all former wills not in order, that John Yerkes might die intestate, hut in order to make way for that paper as an effective will. If that paper had been able to maintain its ground as a will, it would have repealed the will of 1865 without any revoking clause. It would have stood as the last declaration, complete in itself, and not an addition or codicil to any former instrument, of what disposition John Yerkes willed to be made of his property after his death. No revoking clause could make it stronger. If it was a will in whole or in part, it was his last will so declared to he, which necessarily overrode all prior ones. We know, however, that express clauses of revocation are inserted in most wills as a mere matter of form, the mere expression of which is inherently implied, as are many other parts, such as the direction that all just debts and funeral expenses shall be first paid and discharged. As evincing an intention on the part of John Yerkes to die intestate unless the will of 1869 went into effect, that paper — executed as it has been found under undue influence — the very act of execution not the free exercise of his own volition — was no ground upon which any legal judgment could be rested. The parol evidence of what took place at the time of the execution of the paper of 1869, did not help the case of the defendants. It had no tendency to show that unless that paper stood he wished only his lawful issue to have his property, according to the intestate laws, leaving his unfortunate illegitimate child wholly unprovided for. All that he said was that he wanted to make another will. If the execution of that paper was induced by the undue influence of Catharine Rudy, there is some difficulty in comprehending why this declaration made in her presence, and with the same view, is not within the same objection. There was no evidence to submit to the jury, either in the paper itself or any declaration made by him at the time that John Yerkes had any other object in revoking the will of 1865, than to substitute the disposition made by the will of 1869 for it. He had no intention to die intestate, but the contrary. The case of Barksdale v. Hopkins, 23 Georgia 332, relied on by the counsel for the defendants, is not to the point, and does not sustain his contention. It holds merely that if a will is before a probate court for probate, and a second will is pleaded as a revocation of the first, the probate court may take notice of the second, although it may be that the second is one which has not been admitted to probate, and one which is not offering itself for probate: consequently the probate court may hear proof touching the execution of the second. That is a proposition, it seems, too clear to be doubted, but it has no application to the present case.

We conclude, therefore, that the learned judge below erred in submitting to the jury the instrument called the will of 1869 as evidence of the revocation of that of 1865, which was the subject-matter of the issue.

Judgment reversed, and venire faeias de novo awarded.


author: Agnew, J.

text:
    Newcomet versus Brotzman.
    1. Ordinarily when partners sell out to a stranger, no notice of dissolution is necessary to one dealing with the purchaser.
    2. The fact that the purchaser had not been a partner and is doing business for himself, is notice of the dissolution, even to a former dealer with the firm.
    3. Newcomet was a member of a firm: his son attended to the business for him, he not being at the store, and the son receiving his share of the profits; he bought out his partners and gave the whole to his son, one of the former partners remaining as clerk, and the business being apparently conducted as before. The plaintiff dealt with the son as before, and charged his sales to the firm. The court below charged that the plaintiff was not affected with notice of the change. Held, not to be error.
    4. Neweomet having failed to inform those dealing at the store of the change, his silence under the circumstances was calculated to mislead, and he was therefore estopped from denying that the dealing was with the firm.
    5. Before the change, checks had been given in the name of the firm;; afterwards they were in the name of the son. The court charged that this was cogent but not conclusive evidence of notice. Held, to be correct.
    May 18th 1871.
    Before Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lebanon county: No. 14, to May Term 1871.
    This was an action of assumpsit brought by George Brotzman against Samuel Neweomet, trading as Newcomet & Co., to recover for goods sold and delivered by the plaintiff for which he alleged the defendant was liable. The defence was that the goods had been sold to W. W. Newcomet, a son of the defendant, 'and not to the defendant.
    The cause was tried, January 11th 1870, before Pearson, P. J. The facts in the case will appear as intelligibly and concisely in the following charge of Judge Pearson as they can be presented by any synopsis of the evidence.
    * * * “ The plaintiff originally dealt with the firm of Albert & Co., in this same store. That firm consisted of John Albert, Jerry White and Peter Lutz. Albert sold to Samuel Newcomet, a farmer living some thirty miles from Pottsville, where the business was conducted, who placed his son in the store under an arrangement that he was'to have one-third of the profits, being the father’s whole share thereof. The business was managed by W. W. New-comet, Lutz and White, for some time, the plaintiff dealing with thorn as Newcomet & Co., when S. Newcomet bought out the other two, and gave the whole store and business over to W. W. Newcomet, after which the plaintiff continued to supply the establishment with produce as before, until the present account had accumulated. Lutz was retained as a clerk. The plaintiff avers that he was not aware of any change in the firm, but supposed that S. Newcomet continued a partner as before. His accounts were all kept against Newcomet & Co., as previously. On the other hand, it is contended he had actual notice, as stated by Lutz, that W. W. Newcomet was sole owner; and constructive notice in the change of form of the cheeks given in payment from time to time. The question of .actual notice is one of fact, depending on the testimony of Lutz, who swears he told the plaintiff within a few days after the dissolution, and named certain persons who were present at the time. The plaintiff positively denies having any such conversation until after the failure of W. W. New-comet. The other men referred to by Lutz, deny it also. The question is for the jury, and if actual notice was given, the debt incurred after that time cannot be recovered.
    “ It is contended that there is conclusive evidence of notice that the firm of Newcomet & Co. was dissolved by the change in the form of checks received from time to time by the plaintiff. Originally they were drawn in the name of Newcomet & Co., and afterwards in the name of W. W. Newcomet. This we say is strong and cogent evidence of notice, might almost be called constructive notice, which would be equivalent to actual; but we are not prepared to say that it is conclusive evidence of notice with the case of Deford v. Reynolds, 12 Casey 325, before us. It is a question for the jury. The plaintiff testifies that he never noticed the change; had been in the habit of receiving the checks drawn by Lutz before presenting them to the bank, and drawing the money, and received them in the same way afterwards, and ob-tamed the money on them without reading. Such a course of business is evidence of great carelessness by the plaintiff, but we are not prepared to say that it is conclusive of notice. It is, as we said, strong and cogent evidence thereof. It is possible that as S. Newcomet had never transacted any business in the store, and W. W. Newcomet always had, even if Brotzman had read the checks it might be that he supposed the son was using his own name instead of that of the father, without any change in the firm. The objection to that is that there would have to be an alteration in the bank account, or the bank pay on a wrong name, which is unlikely. This, with the answers to defendant’s' points, will sufficiently inform the jury as to the law of the case.
    “ 1. As between the partners, the facts disclosed that W. W. Newcomet was to have one-third of the profits of the business— being the whole of his father’s share thereof, — will not make him a partner. It is not necessary for us to decide how it could be as to a creditor of the firm, as he is not the party sued, and no allegation that credit was given on his account.
    “ 2. If one member of the firm bought out the other two, notice of the dissolution was necessary in order to protect the retiring partners from responsibility. If all three sold to a new man no notice is ordinarily necessary. If one bought from the others, and then sold, or gave away the whole stock to a new man, no notice is generally required for his protection. But where the three had been in partnership, Samuel Newcomet not there, but his name used, and his son, W. W. Newcomet, acting for him and doing the business of the store, and by agreement to receive his share of the profits, and after Samuel bought out White and Lutz he gave the whole to his son, who continued with Lutz as his clerk to carry on the business ostensibly as before; no outside change made in the manner of conducting it, all done and carried on by the same men, it was well calculated to deceive those who had dealt with them, and therefore notice was proper, and perhaps necessary, to protect the retiring partners, lest others should continue to trust them as before the dissolution, and be deceived and misled. If such was actually the case, and the credit given on the faith of Samuel’s known responsibility, we think he had not taken the proper course to notify their former creditors. It is left to the jury to decide whether the plaintiff had notice, or was actually misled by the method of conducting the business.
    “ 3. The effect of the change of the cheeks is sufficiently explained in the general charge. We have said that it is strong and cogent evidence of notice.
    “ We do not think that, the case'turns on the fact of actual partnership, but upon the plaintiff’s testimony from their mode of doing business that Samuel Newcomet was still the owner of the store, and the credit given on the faith of his supposed responsibility.”
    The verdict was for the plaintiff, for $535.01.
    The defendant took a writ of error and assigned for error'the answers to his 2d and 3d points, found at the conclusion of the charge.

      J. Funk, for plaintiff in error.
    The change in the checks was sufficient to put the plaintiff on inquiry, and therefore notice of all he could have learned by the inquiry: Collier on Part., § 533; Barfoot v. Goodall, 3 Camp, 147; Brightly’s Eq. Jur., § 116; Story Eq. Jur., § 399; Taylor v. Stibbert, 2 Ves. Jr. 437; Hunburry v. Litchfield, 2 Myl. & K. 633; Beance v. Muter, 3 Moore P. C. Cas. 69; Sadler v. Lee, 6 Beav. 324; Cothay v. Sydenham, 2 Bro. C. C. 391; Att.-Gen. v. Backhouse, 17 Ves. 293; Whitbread v. Jordon, 1 Y. & C. 329; Hatch v. Searles, Sm. & G. 147; Zollar v. Janvrin, 47 N. H. Rep. 326; Kennedy v. Green, 3 Myl. & K. 719-21-22.

      W. M. Derr (with whom was A. R. Boughter), for defendant in error.
    A partnership once entered into is presumed to continue as to third persons, until notice is given: Thurston v. Perkins, 7 Missouri 29; Princeton and Kingston Turnpike Co. v. Gulick, 1 Harr. 161; Collier on Partnership, §§ 120, 530; Williamson v. Fox, 2 Wright 214; Deford v. Reynolds, 12 Casey 325.

   The opinion the court was delivered by

Agnew, J.

This is a peculiar case, and was decided on its own circumstances. Ordinarily, when partners sell out to an entire stranger, no notice of the dissolution would’ be necessary to a person dealing with the purchaser. The very fact that he had not been a partner, and is doing business for himself, would be notice of the dissolution even to a former dealer with the firm. But in this case Samuel Newcomet, the party sued, was a member of the company. He had never transacted its business in person, but had placed his son, William W. Newcomet, there, giving him his own share of the profits; and when he bought out his partners and gave the business to his son, the latter continued transacting business apparently as before, retaining one Lutz, who had been a partner, as his clerk. No new sign was put up, and there was no visible change. The plaintiff, unaware of the change in the ownership, dealt with W. W. Newcomet, as he had been accustomed, and charged his goods to the firm of Samuel Newcomet & Co., under a belief that the firm continued. The court below held that under these circumstances the plaintiff was not affected by the change in the ownership of the store without actual notice, or the proof of such facts as warranted the belief of knowledge. We cannot say this was an error. But the case rests rather on the principles of equitable estoppel, than upon the special rule as to the dissolution of a partnership. When a dissolution takes place- and the creditor continues to deal with one who has been a member of the firm, he is apparently dealing with the partnership, if not informed of the withdrawal of the retiring partner; for he deals with one having had authority to act for all the partners.- But here the person with whom he dealt was no partner, and in that respect it cannot he said that the authority which a member has to bind his partners is brought into play; and therefore it cannot be said he was apparently acting for the firm. Hence, this case must be rested on facts w-hich equitably estop Samuel Newcomet from settling up the sale or gift of the store to his son. The relation of Samuel Newcomet to W. W. Newcomet was such as to induce persons to believe that the son, who had been the agent of the firm, continued acting in that relation. Not only was there the relationship of consanguinity to produce this belief, hut that entire trust which led the father not to act himself in the business, but to delegate it wholly to his son. Without being informed, no one could distinguish between the business as done by the son before the sale and as done afterward. Those who had dealt with .the firm through him, could not know that a different relation had been assumed by him. The father clearly owed them a duty to speak out, and to inform them of the change, if he would cast responsibility off himself. His silence was calculated to mislead, he must have known it, and if the testimony of the plaintiff be believed, it did mislead him. Had the plaintiff not dealt with the firm before, he could not claim notice of the change as a duty to him. But when Samuel Newcomet gave the store to W. W. Newcomet he knew that those who had dealt with the firm would be likely to return, and might give credit to his son as the agent of the firm, unless informed that his authority had ceased. His silence, therefore, when he ought to speak out, was likely to mislead, and he cannot now complain of a liability begotten by his own negligence.

After W. W. Newcomet commenced business-on his own account, he made payments to the plaintiff in his own checks. The plaintiff swears that he did not observe the change in the checks, and continued to deal, as he supposed, with the late firm. The court instructed the jury that this change in the form of the checks was strong and cogent evidence of notice of the change in the business, but declined to say it was conclusive. To have taken the question of notice from the jury by instructing them that notice was a conclusive legal presumption, from the form of the check, would have been an error. The surrounding circumstances made it clearly a question for the jury, and not for the court. We must not forget, at this point in the case, that in the absence of actual notice, or knowledge, the estoppel bad been made out. When the plaintiff took the cheeks, he took them as payment of a debt of the firm of Samuel Newcomet, as he believed, and not of W. W. Newcomet. Why the latter gave his own checks did not concern him very much. He was just as likely as not to suppose it was attributable to some arrangement for the convenience of the firm, which had intrhsted the business to W. W. Newcomet. Hence, it would not do to hold that the fbrm of the check created a conclusive legal presumption of knowledge. The court gave it its full effect in saying that it was strong and cogent evidence of notice. It was still a question for the jury, in view of the surrounding circumstances, which had misled the plaintiff. Being under their influence, his thoughts were likely to be diverted from the mere form of the payment. The court gave sufficient force to the evidence, and we find no error in it.

Judgment affirmed.


text:
    Biddle’s Appeal.
    1., A testator gave to his daughter “ one-eighth of all his real and personal estate,” the legacy to “ remain in the hands of my executors so long as she remains single, and the interest payable to her each year, and on the event of her marrying and she desiring to have her legacy, my executors to pay it to her.” The concluding clause of the will was “ if any of my sons and daughters die without lawful heirs, then in that case, their portion reverts back to my heirs in common, share and share alike.” This was a vested legacy, and the concluding clause did not carry it to the testator's heirs on her death without issue.
    2. The postponement of the payment until marriage did not destroy the vested character of the legacy.
    3. Having married she demanded and received part of her legacy ; if there were a trust in the executors, and her election was required, demanding part was an election as to the whole, determined the trust and vested the whole legacy in her.
    4. The words “ lawful heirs ” in the concluding clause meant “ lawful issue,” and conveyed an absolute estate in the personalty.
    May 19fch 1871.
    Before Agnew, Sharswood and Williams, JJ.
    Appeal from the Court of Common Pleas of Blair county: Of May Term 1871, No. 84. In the estate of John Biddle, deceased.
    The decedent died in 1847, having made a will dated June 14th of that year, and proved February 24th 1848, and owning both real and personal estate. After giving $500 to a granddaughter, and directing the payment of $150 to his daughter Christiana as compensation for labor for him, he gave, “unto my five sons and four daughters all the residue of my real estate in equal portions, as follows : To my son John I give, &c., the mansion tract I now live on, &c.; I further give, &c., to my son John fourteen acres, &c., which I value at seven dollars per acre,” which he was to pay to the executors. “ I will, &c., to my son Charles Biddle the residue of said tract, &c., which I value to him at $35 per acre; I also give unto my son Charles fourteen acres mountain land, &c., which I value at $7 per acre; and whatever these two tracts at the valuation amounts to more than his legacy, or one-eighth part of all my real and personal estate after deducting, &c., he shall then pay to my executors for the share of his other brothers and sisters in the following manner,” &c. “ I will, &c., my son Jacob a part of the Brooks tract of land, &c., which I value to him at the sum of $5083.50, &c.; the remainder of said Brooks tract, &c., I bequeath to my daughter Drusanna, which I value at $4583.50,” &c. He gave to his son George one-eighth part of his real and personal estate, charged on Jacob’s and Drusanna’s tracts. He then gave to his daughter Christiana as follows:—
    “ I give, will and devise to my daughter Christiana the one-eighth part of all my real and personal estate, subject to the[before-mentioned devises, &c. * * * It is my will that the legacy I have given to my daughter Christiana, shall remain in the hands of my hereinafter-named executors, so long as she remains single, and the interest payable to her each year, and on the event of her marrying, and she desiring to have her legacy, my hereinafter-named executors to pay it to her.”
    He then gave to his other children legacies, each one-eighth of his estate, and concluded:—
    “ The residue and remainder of all my personal and real estate not hereinbefore already disposed of, shall be sold by my hereinafter named executors, so soon after my death as can be done conveniently, and out of the proceeds thereof my hereinafter-named executors shall pay to Elizabeth Snowberger, &e., Rachel Boyd, &e., and to my daughter Christiana their several legacies, in the way and manner I have heretofore directed, in proportion as the same comes from the payments from my sons and sale of my real and personal property. It is further my will that if any of my sons and daughters die without lawful heirs, then in that case their portion reverts back to my heirs in common, share and share alike. And lastly, I appoint my sons Andrew and Charles Biddle, the executors of this my last will,” &c.
    Christiana subsequently married William Delaney. In February 1853, the executors filed their final administration account, by which it appeared that Mrs. Delaney’s share of her father’s estate under the will was $2283. She died September 1st 1856, and administration of her estate was granted to her husband.
    On the 28th of January 1867, Delaney, as administrator, &c., of his wife, presented a petition setting out the bequest to her and the other facts as above stated, and prayed the court to make a decree against the executors for the payment of the legacy.
    The executors answered amongst other things that Mrs. Delaney had been “paid in her lifetime the interest and all the principal of her additional legacy except about $500 or $550; that the said sums were paid her in accordance with the directions of said will, the interest payable to her each year while single, and the principal after her marriage as she desired and requested it; that she died on the day of A. D. 1855 or 1856, without lawful heirs, and the balance of said legacy remaining in hands of said executors was distributed and paid to the other heirs of John Biddle, deceased, share and share alike, as directed by testator.”
    By an amended answer the executors averred: that the balance of the legacy due to Christiana Delaney was tendered to her about April 2d 1856, in the presence of her husband, and that she refused to receive it, and said she desired it to remain in the hands of the executors.
    The matter was referred to A. S. Landis, Esq., as auditor.
    The evidence before him was that a considerable portion of the $2283, the amount of her legacy, had been paid to her before the final settlement of the executor’s account in 1853; that shortly before her death, Charles, one of the executors, offered her the balance. She declined taking it; she shid she wanted it to stay in his hands, as she did not need it at the time.
    Charles, the executor, testified, that on the'occasion spoken of, he paid her the interest then due her on the balance up to that date, and offered her the principal; she said she wished it to remain in the executors’ hands where it was; he then offered her his note with security to close up the account, but she declined to take it. He testified that he had paid the money'out to the other heirs since her death.
    The auditor, in concluding his report, in which he discussed the authorities and applied them to the facts, said:—
    “ The auditor is, therefore, of opinion that the balance of the legacy was vested in Christiana Delaney, the gift being limited over on an indefinite failure of issue, by operation of the rule of law in such cases; the gift over was void for remoteness, and it therefore passed and vested in her absolutely, and her administrator is entitled to receive the payment of the same with interest.”
    He accordingly reported that there was due from the executors to the estate of Mrs. Delaney on the 24th of March 1871, the sum of $1304.20. ^
    ^ The executors filed exceptions to the report of the auditor. The Orphans’ Court overruled the exceptions and confirmed the report.

      On appeal by the executors to the Supreme Court, they assigned the decree of confirmation for error.

      H. M. Baldridge and L. Calvin, for appellants.
    In gifts of personalty, “ die without leaving issue,” means die without leaving issue at the death of the person the failure of whose issue is spoken of: Diehl v. King, 6 S. & R. 32; Still v. Speer, 9 Wright 171; Hagerty v. Albright, 2 P. F. Smith 274. “Then in that case,” shows the testator intended to limit the failure of issue to the death of the first taker: Diehl v. King, supra; Rapp v. Rapp, 6 Barr 45; Langley v. Heald, 7 W. & S. 98; Vaughn v. Dickes, 8 Harris 514; Bedford’s Appeal, 4 Wright 22.

      S. S. Blair, for appellee.
    The expressions “ without heirs ” and “ without issue,” in respect to legacies, are equivalent: Hagerty v. Albright, 2 P. F. Smith 274; Garrat v. Cockerel, 1 Younge & Col. 501; Amelia Smith’s Appeal, 11 Harris 9; Campbell v. Harding, 2 Russ. and Mylne 390; Mengel’s Appeal, 11 P. F. Smith 249; Bigge v. Bensley, 1 Bro. C. R. 188.
   The opinion of the court was delivered, May 25th 1871, by

Agnew, J.

The testator John'Biddle willed, and devised to his daughter Christiana the one-eighth part of all his real and personal estate; and directed his legacy to her to remain in the hands of his executors so long as she remained single, the interest being payable to her yearly, and in the event of her marriage the legacy to be paid to herself if she- desired it. After her marriage the executors paid to her at her request two-thirds or more of the legacy, the remainder being suffered by her to remain in their hands. It is very clear that this bequest vested in Christiana an absolute estate in the personal, and since the Wills Act of 1833, a fee simple in the real estate. Indeed, the blending of the real and personal estate would have carried a fee simple before that act. The postponement of the payment of the principal until marriage did not detract from the absolute and vested character of her interest in the personalty. And clearly the trust in the executors, if any, ceased at marriage when she demanded payment. If the expression, “ and she desiring to have her legacy,” at that time, might be deemed to vest in her a right of election merely, still the election was made according to the testimony, and she actually received from the executors two-thirds or more of the legacy after her marriage and before her death. The election to receive the legacy was therefore actually made. That part of the money remaining in the hands of the executors partook of the character of the whole, and was as truly and absolutely hers as the part she received. It would be difficult to separate the right of election into two parts. The legacy was a unit, and the election to receive it at marriage, was not divisible unless by her express agreement. Separation is therefore not to be inferred from the mere fact of the smaller part of the legacy being left in the hands of the executors. That must be deemed but a matter of convenience in the absence of an express arrangement otherwise. The whole legacy müst therefore be considered as absolutely vested in her.

This being personal estate, the subsequent clause in the will did not carry the legacy over to the right heirs of the testator on the death of Christiana without issue. That clause is in these words: “It is further my will that if any of my sons and daughters die without lawful heirs, then in that case their portion reverts back to my heirs in common, share and share alike.” To give this clause any effect whatever, the words lawful heirs must mean lawful issue. This according to the authorities would convey a fee tail in the real estate, and an absolute estate in the personalty. The will of John Biddle was made and proved in 1847, before the act abolishing estates tail was passed. Though an estate for life may be limited in chattels with a remainder to others; yet there can be no limitation of chattels in fee or fee tail, so as to vest in the heirs of the tenant in fee or tail, an indefeasible title. The estate in the realty if entailed may be barred by deed in the manner provided by law; and the estate in the personalty becomes absolutely vested in the first taker: Amelia Smith’s Appeal, 11 Harris 9; Mengel’s Appeal, 11 P. F. Smith 248.

Finding no error in the record, the decree of the Orphans’ Court is affirmed, with costs to be paid by the appellants.


author: Per Curiam.

text:
    Kreiser’s Appeal.
    1. The wife of a testator was present at the execution of his will, and made fully acquainted with its contents ; she at the same time endorsed on it a writing signed by her with her seal in the presence of the witnesses to the will, ratifying it and accepting its provisions in lieu of her dower, and renouncing all claims in his estate to which she might be entitled at common law. The writing was void at law. Per Peakson, P. J., adopted by the Supreme Court.

    2. It would not be binding in 'equity unless shown to be made with her full knowledge of the value of the interests she was receiving and giving up, and that there was no inequality. Id.

    3. Equity leaves her to her choice of her rights by law, or those under the will; and she would not be bound by such election made during coverture. Id.

      4. The will was read in her hearing on the day of the funeral, she said she was satisfied with it, and a few days afterwards accepted chattels bequeathed to her. This was not a binding election. Id.

    5. A party is not bound to make an election until all the circumstances and the state, condition and value of the fund are known. Id.

    6. Anderson’s Appeal, 12 Casey 476; Dickinson v. Dickinson, 11 P. F. Smith 401, adopted.
    May 19th 1871.
    Before Agnew, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of Lebanon county: No. 63, to May Term 1871: In the distribution of the estate of Jacob Kreiser, deceased, decreeing to Elizabeth Kreiser, the widow of. the decedent, her share of his estate under the intestate laws instead of the provisions for her in his will.
    The testator died about the 24th of December 1867, leaving his above-named widow, a daughter Caroline, her child; also six children by a former marriage, to wit: Daniel Kreiser, Sarah Petry, Elizabeth Carus, Jacob Kreiser, Lydia Hay and Polly Miller.
    He left a will dated July 22d 1867, as follows:—
    * * * “ Further, it is my will and I do order and direct, that my present wife, Elizabeth, shall have for her use as long as she lives and remains my widow, and not longer, my tracts of about 13 acres of land, with all the buildings and appertenances, situate, &c., as also my said wife, Elizabeth, shall have for her use as long as she lives and remains my widow, and not longer, my tract of about two acres of woodland, situate, &c. As also, she, my said wife Elizabeth, shall have for her use as long as she lives and remains my widow, and not longer, all my house and kitchen furniture, and loose stock in my house, and articles in my barn and in the yard; further, it is my will that at and immediately after the death of my said wife Elizabeth, or after she did join into another marriage, all that the aforesaid tracts of about thirteen acres of land with all the buildings and appertenances, and the said tract of about two acres of woodland, and the said house and kitchen furniture, loose stock and articles in my barn and in the yard, shall become the property of my and my said wife Elizabeth her child Caroline, but if it should happen that she, my said child Caroline, should die before the death of her mother [my present wife Elizabeth] or if she, the said Caroline, should die and having no child or children at the time of the said Caroline her death in either of such eases, the said tracts of about 13 acres of land, two acres of woodland, house and kitchen furniture, stock articles shall become the absolute property of my other hereafter-named children and legatees hereafter named in this my will, after the death of said Elizabeth or after her other marriage.
    “ Further, it is my will and I do order and direct and do give and bequeath unto my other children, all the proceeds of all my bonds, notes, judgments, cash money bills, accounts, income and outstandings, &c.,” — designating each, of his other children by-name, each to take one-sixth. Appended to the will was the following :—
    “Know ye all men that I, Elizabeth Kreiser, was fully acquainted with the contents of the foregoing will and testament by my said husband, Jacob Kreiser. Now know ye That I do hereby ratify, and accept of the provisions contained in said will in lieu of my dower or right of common law, &c., hereby renouncing all claims and suits for dower in said estate which I might in common law, &c., be entitled.
    “ In witness whereoe I have hereunto set my hand and seal the 22d day of July, A. D. 1867.
    her
    Elizabeth W Kreiser. [seal.] mark '
    “ Witnesses present at the signing and sealing hereof:

    Jacob Shnotterly, Gideon Shnotterly.”
    These witnesses were also witnesses to the will.
    On the 24th of January 1868, the widow gave notice to the executor that she refused the provisions made for her in the will, and elected to take the $300 under the exemption law, her share of the personalty and her dower in the real estate under the intestate laws. The testator’s personal property, according to the inventory, amounted to $8301.41, besides the chattels bequeathed to the widow, appraised at $483. The account of the executor ■as confirmed, showed a balance in his hands of $4225.46, which was referred to James W. Ebur, Esq., for distribution.
    Before the auditor, the widow claimed in accordance with her notice to the executor. At the audit, the scrivener who drew the will testified, that the testator and his wife came to his office on or about July 22d 1867, the time fixed for drawing the will; that after interrogating them as to how it should be drawn, he wrote the will in their presence, read it to them, and after explaining it in German, and the testator having told her that all his property, both real and personal, viz. all his household and loose goods (except the notes and bonds, the amount of which he stated), as also his two tracts of land, were to be hers as long as she lived and remained his widow, and thereafter to their daughter Caroline; she in reply thereto said it was all right, and that she was satisfied, and then signed the renunciation, -which was also explained to her in German. That after the funeral the witness read the will to her and the children, and she with them said it was all right and they were satisfied. That on January 16th 1868, at the appraisement, she then and there stated that she would take under the will, that she wanted a home to live in and was satisfied.
    A son of the scrivener testified that he heard his father explain the will in German to the widow, and inquire whether she understood it; she answered that she did and that it was all right.
    Bernhard Kreiser testified that she said that her husband had made a will, that she heard it read and was satisfied. Others testified in the same way.
    There was evidence also of the value of the real estate devised to Caroline, and that the widow had taken on the day of the appraisement, the chattels bequeathed to her by the will.
    The auditor in his report, after stating the facts, said:—
    * * * “Elizabeth Kreiser (the widow) then under a full knowledge of all the circumstances, having been fully informed of the value of what she was to choose between, and in pursuance of the evident understanding between her and the testator, thus elected to take under the will, did so when signed, and ratified that election by signing the renunciation and in expressing her approval by being satisfied with what she considered her interest, viz.: the securing a home for herself and child, worth about $2000, whereon she no doubt could make a living for herself and child as contemplated by the testator.
    “ She therefore having thus elected to take and accept, cannot at an aftertime decline, and avail herself of the privilege of the law, the right to which she has forfeited in consequence of her having already taken under the will.
    “ After a careful consideration of the whole subject-matter, I can arrive at no other conclusion than this, viz.: that the testator and his wife having consulted together as to-how the will was to be made and the estate settled upon her and his children, and the will being drawn under their joint direction, was a postnuptial or family settlement which the widow confirmed in writing, and ratified after the death of the testator by electing to take the articles and property given to her by the will, and stating that she was satisfied with the will, constituting an election, and therefore binding on her.”
    The auditor awarded her the $800, and distributed the balance of the personal estate amongst the six children to whom it was bequeathed.
    The widow filed exceptions to the report. It was set aside by the Orphans’ Court, Pearson, P. J., delivering the following opinion:—
    “On the 22d day of July 1867, Jacob Kreiser executed his will in due form, devising to his wife his farm consisting of thirteen acres, and two acres of woodland; also bequeathing to her his household and kitchen furniture, loose stock in his house, aind articlés in the barn and yard, all during life or widowhood, aqid no longer, with a limitation over as to both species of property to his daughter Caroline on the death or marriage of her mother. In case of her death during the lifetime of her mother, or without leaving children, the remainder over to the other, children of the testator by name. The wife of Kreiser was present at the execution of the will, declared in writing that she was well acquainted with its contents, ratified and accepted its provisions in lieu of her dower or right of common law, and renouncing all claims for dower in said estate to which she might be entitled at common law. This writing is endorsed on the will, and executed under her seal in presence of the same two persons who witnessed the will. The first question presented to the court relates to the validity and binding effect of this writing. It is certainly void at law, and cannot be sustained as a legal instrument against a feme covert. She cannot bind herself in law by any such method. She had no one with whom to contract: not with her husband, for they are, legally speaking, one person; besides she is presumed to be under his control and coercion. She would have no protection whatever if an instrument of this kind could be enforced against her. She could always be controlled by love or fear, overawed by threats, or cajoled by promises. She certainly did not contract with the legatees; they were not parties. The will was not binding on the husband; he could change it the next day: why then should she alone be bound, and her husband loose ? If she could thus release her interest in his goods she could in his lands, aud thereby the safeguard of a separate examination by a competent and disinterested officer be dispensed with and set at nought. Is this arrangement binding in equity? Would it be enforced by a chancellor ? We answer no, unless it could be shown that it was made by the feme covert with full knowledge of all the facts — the value of the property she was receiving, and the interests she was giving up. Besides, if there was any inequality equity would not bind her. Being under legal disability, the bargain must be clearly for her benefit — at least not to her disadvantage, or chancery would leave the other parties in interest to their remedy at law.
    “ The inequality in the bequests is not very glaring, yet there are some features in those to the wife which render them unequal. She is given an, estate in both the land and goods during widowhood only, has not even an untrammelled life estate. She is by law entitled to the absolute ownership in one-third of the personal property, after deducting three hundred dollars for her own use, which the devisees claim she has waived by her agreement, and also to the use of one-third of the real estate during life, whether she marries again or not. It is said that the land will rent for $150 a year, and the effects appraised for the widow under the will amount to $483, whilst the other part of the personalty as shown by the settlement is $4255.46. It is also in proof that the land would not support this woman and her child, either by her occupancy and cultivation, or renting it out. The Act of Assembly gives the widow a clear right of choice whether to take under the will or claim her distributive share. The effort here is to restrict her by the writing on the will, signed during coverture. Equity would leave her to the choice conferred by law, and the rights given up are the most desirable. It is said, however, that she obtains an advantage to her child by this arrangement of the will. We cannot look to that in adjusting her equities. Chancery will not oblige her to sacrifice her interest to promote that of her child. The land cannot come into possession until after her death or marriage, and in the meantime if she declines to accept the testamentary provisions, the heirs and herself will hold it together, she taking one-third, they two-thirds of the rent.
    “ This election made at the time the^ill was executed — during coverture, in presence of the husband — we consider of no moment whatever. The party was then incompetent to make it: for an infant, feme covert, or a lunatic will not be bound by an election : Story Eq. Jur. § 1097. Her contract is void at law, and equity follows the law: Story Eq. Jur. § 248. A feme covert is not bound by an exchange of land made by her husband, though she declared herself pleased: 6 Barr 416. Equal partition may be binding on the wife, as a family arrangement, yet if not equal and fully complied with, it is not binding : 12 Wright 345, 367, 50.
    “ It is said that this agreement of the wife is binding as a post-nuptial contract and family arrangement. We are aware that equity lends its aid to carry out and enforce such arrangements when entered into for the peace of families where contests have arisen or are likely to arise; but we look upon this as an ordinary contract between husband and wife,' in which the one party, who is presumed to be under coercion, agrees to bind herself, whilst the other remains free — can revoke the will at pleasure. There is no equality, and consequently no equity in such a postnuptial settlement, which after all is nothing more or less than a bargain between husband and wife. Our books of reports present many cases of obligations given to the wife by the husband being enforced against his representatives after his «death, and also of loans of money by her to-him, but we are not aware of any case where the wife’s agreement to pay money to the husband, or borrow it from him, has been enforced in Pennsylvania, either in the lifetime, or after the death of the parties, or either of them. The doctrine of estoppel is invoked in the present case, and it is shown that both infants and feme coverts may be estopped by their acts, or silence when it was their duty to speak. Lord Coke says estoppels are odious in law, because they stop the mouth from speaking the truth. But we know that they are often used and sustained in equity — as where a feme covert knows that the property in which she is interested is under sale and encourages an innocent person to buy it, or stands by whilst it is being improved or sold, and gives no notice of her claim. But to constitute such estoppel, there must be wilful silence, or misrepresentations by one having knowledge of the fact. The other party must not have the means of information, and be induced by the acts or omissions to do what he otherwise could not have done; and an injury must ensue from giving the party permission to speak the truth. It must be such an act as operates as a fraud on the purchaser, and that cannot be the case where he. was acquainted with all the facts: See 10 Barr 531-2; 17 S. & R. 383. There must be an injury of which some one can properly complain. If none arises from the act or omission, there can be no estoppel: 15 Mass. 152; 6 Pick. 455; 8 Wend. 480; 5 W. & S. 284. Nothing is shown here to have been done or omitted by Jacob Kreiser in consequence of his wife signing the paper. It has been suggested that possibly he might otherwise have given the bonds referred to in the account to the other children during his lifetime, and have thus cut his wife out; but there is no evidence that he so threatened or attempted, and if he had it would have been an endeavor to "deprive her of her distributive share without consideration. We have no right to infer that the husband intended to deprive the wife of that secured to her by the law of the land by giving away his property. Did Elizabeth Kreiser ratify her release as endorsed on the will since her husband’s death ? The evidence shows that the will was read the evening after the funeral, and the widow then made no objection to its provisions. A few days after an appraisement of the personal effects intended for her was made, and the articles left with her on the premises where she was living. Eight days after that time she gave notice in writing that she would not accept under the will, but claimed her dower and distributive share under the law. So careful have been the statutes of this state of the widow’s rights that she cannot be called on to elect between a devise or a bequest and her dower or distributive share until after the expiration of one year from the death of the testator, when she may, by the 35th section of the Act of 1832, be cited to come into the Orphans’ Court and make an election. This gives her ample time to make herself acquainted with the situation of the estate. She may even compel an exhibition of the account to enable her to choose intelligently. The general rule is that the party is not bound to make an election until all the circumstances are known, and the state, condition and value of the funds are clearly ascertained; for until that is known it is impossible to make a discriminating and deliberate choice, such as ought to be binding in reasoir and justice: Story Eq. Jur. § 1098. To bind the widow she must have full knowledge of the facts: 1 Yes. Jr. 335; Id. 171, 172. As a general rule a receipt for part of a legacy will not bar dower without a full knowledge of the situation of the estate : 1 Swanston 381. Our own books are to the same effect. The election must be evidenced by plain and unequivocal acts, with full knowledge of the situation of the estate: 2 Yeates 302 ;|5 Harris 454. In Anderson’s Appeal, 12 Oasey 476, the testator died June 1st 1858. An inventory and appraisement was filed on the 21st of August following, the account was settled on the 17th of March 1859. On the 19th of January 1859, a notice of non-acceptance was served on the executor. On the 6th of October 1858, the widow receipted for over $2100 on account of her legacies, on the 23d of the same month she gave another receipt for $100. She also joined in leasing some of the devised lands, yet all of these acts were decided not to be binding, because the full situation of the estate was unknown to her. She was a woman of intelligence and business capacity; the acts of confirmation were numerous and pretty decided. There was ample time for examination. In this case we have an ignorant woman who cannot write her own name. She did nothing decided, merely handed the executor the bonds, and afterwards permitted' them to appraise the property and leave it on the premises. Within eight days thereafter, and long before the situation of the estate was known, she gave notice that she would not acquiesce in the provisions of the will, but claim under the intestate laws. The principles of Anderson’s Appeal are reiterated and approved in 11 P. F. Smith 405. The acceptance of a legacy and agreement to stand by a will when done in mistake of her rights were held not to be binding in 1 Oasey 468. It is true this court decided in Light v. Light, reported in 9 Harris 407, affirming the judgment that an election might be made in pais, need not be in the method prescribed in the statute, but would be binding when the widow acted with full knowledge of the facts. But that case differed from this. The widow there gave a receipt for the personal effects, as taken under the will, with a declaration in the paper: ‘ I hereby accept under the said will.’ Prior to that she had been informed of her rights —told she had a right to renounce, and that she could probably get more, but was advised to accept. That case was on the very verge of the law, was barely sustained in the action of dower, and possibly might have been decided otherwise had Anderson’s Appeal been in existence as a governing example. The case of Light v. Light has never been overruled, and may still be considered sound, but is on the outside boundary. The widow in the present case was extremely illiterate, conferred with no one, received no advice, and did no act so decidedly confirmatory of the will as in that case. Although the auditor has found that the will is binding on the widow, yet. we cannot help thinking that it was not so much from her subsequent acts of confirmation, as on the endorsement on the will during coverture, which we look upon as utterly void, and of no effect in law. We also consider that the verdict of a jury should he set aside by the court if the facts relied on as evidence of an election had been proved as here, and none other; -and they had been found to be binding. We therefore feel ourselves constrained to set aside the report of the auditor.
    “It might look like a verbal criticism, and not carrying out the intention of the writing, were we to decide that there is nothing in the endorsement on this will which would preclude the widow from claiming her distributive share out of the notes and bonds belonging to the estate of the decedent. She only relinquishes her dower at common law, unless we give more weight to the ‘&c.,’ than is even given by Lord Coke. Dower at common law issued out of land alone. The distributive share of personal effects was conferred by a Pennsylvania statute of comparatively recent date. Before the Act of 1848 the husband could by his will deprive his wife of all interest in his personalty and she had no claim thereon. We prefer, however, deciding this case on the broader principles as already indicated. The report must be set aside, and the account referred back to the same auditor to make distribution according to the principles contained in this opinion, unless new evidence of acts of confirmation by the widow are introduced, so as materially to change the aspect of the case.”
    The auditor made a second report in accordance with the principles of Judge Pearson’s opinion. ”g
    The report having been confirmed, Daniel Kreiser and the others of the six children appealed to the Supreme Court, assigning the decree of confirmation for error.

      C. P. Miller and J. Funck, for appellants.
    A husband may make a gift to his wife, or a settlement upon her, without the intervention of a trustee, if it be no more than a reasonable provision for her: Coates v. Gerlach, 8 Wright 45; Mullen v. Wilson, Id. 416 ; Pennsylvania Salt Manufacturing Company v. Neel, 4 P. F. Smith 17; Williams’s Appeal, 11 Wright 308; Kutz’s Appeal, 4 Id. 90. She may enter into an agreement of separation with her husband without the intervention of a trustee, and the money paid to her under it by the husband, becomes her property absolutely, and the husband cannot recover it after her death: McKennan v. Phillips, 6 Wh. 571; Hitner’s Appeal, 4 P. F. Smith 111; 2 Story Eq. Jr., §§ 1368, 1372, 3, 4; Duffy v. The Ins. Co., 8 W. & S. 413; Moore v. Freeman, Bunb. 305; McConnel v. Carey, 12 Wright 350. The widow is estopped in equity by her acts from making her claim under the intestate laws: Commonwealth v. Moltz, 10 Barr 530; Calder v. Chapman, 2 P. F. Smith 362; Fulton v. Moore, 1 Casey 468; Miltimore v. Miltimore, 4 Wright 156; Couch v. Sutton, 1 Grant 120; Wright v. Arnold, 14 B. Monroe 643; Cord on Married Women, § 246; 1 Story Equity Jur., § 385. Femes covert may make an election under a will, which, after being acted upon by other parties, will be upheld by courts of equity: Barrow v. Barrow, 4 Kay & J. 409 ; Savage v. Foster, 9 Mod. 35; Gretton v. Harward, 1 Swanst. 409; 2 Redfield on Wills 743; Harnsden v. Cheyneley, 2 Vern. 150; Evans v. Becknell, 6 Ves. 181-194 and note; Cory v. Gertcken, 2 Madd. 40; Paul v. Stackhouse, 2 Wright 306; Hemphill v. McClimans, 12 Harris 367; Light v. Light, 9 Id. 407.

      W. M. Derr and A. It. Boughter, for appellee.
    Infants, femes covert, or lunatics are not bound by an election: 1 Story Equity Jur., § 1097. The contract of the wife in this case is void at law, and equity follows the law: Id. § 248. Family arrangements are to be regarded with favor, but a parol partition among heirs is binding only when the partition has been agreed to by all the joint owners, and when it has been executed: McConnell v. Carey, 12 Wright 345. The Act of 29th March 1832 gives the widow .twelve months to make her election, and before the expiration of that time she cannot be called on to say whether or not she will accept the provision made for her by the will, or take her dower in the lands or her shares of the personal estate: Anderson’s Appeal, 12 Casey 476; Dickinson v. Dickinson, 11 P. F. Smith 401. A widow’s election shall be determined only by plain and explicit acts, under full knowledge of the circumstances of the testator and her own rights: Duncan v. Duncan, 2 Yeates 302.
   The judgment of the court was entered May 25th 1871.

Per Curiam.

The decree of the court below is fully sustained by the decision of this court in Anderson’s Appeal, 12 Casey 476, the principle of which was affirmed afterwards in Dickinson v. Dickinson, 11 P. F. Smith 401. The questions involved are so fully and elaborately discussed in the opinion of the learned President, that we deem it unnecessary to add anything to what has been so well said by him.

Decree affirmed and appeal dismissed at the costs of the appellant.