author: Mr. Justice Mbrcur

text:
    Hillbish’s Appeal.
    D. died seised of certain real estate, and leaving a widow and nine children. In 1836 said real estate was divided by proceedings in partition. The inquest appraised a purpart and D.’s son George took it at the valuation. , The court approved the security George offered for the payment of the proportions of the widow and other heirs, and adjudged the purpart to him, his heirs and assigns for ever, “ he having entered the usual securities to pay the other heirs according to law.” The record omitted to state the form of the security, and neither bond nor recognisance could be found. In 1858 the widow died. In 1860 II. obtained a judgment against George. In 1862 George confessed a judgment to the heirs in an amount that covered the one-third allotted to the widow and the proportions of the heirs. This judgment was not duly revived. After the decease of George, the real estate was sold under an order of the Orphans’ Court, and II. claimed that he had the prior lien upon the fund. The auditor allowed the heirs their respective proportions in the third allotted to the widow, with interest from her death, but decided that the ■ lien of the heirs to their own proportions did not extend farther back than to the judgment confessed to them by George, and that that judgment, not having been revived, the judgment, of II. was entitled to priority. The court below held that the proportions of the heirs should have been paid before judgment creditor. Held, that this was error.
    March 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Schuylkill county: Of January Term 1879, No. 251.
    Appeal of Samuel Iiillbish from the decree of the court upon the report of the auditor appointed to marshal the liens against the real estate of George Deibert, deceased.
    The real estate of John Deibert, deceased, was divided by proceedings in partition, and purpart A, containing eighty-two acres and one hundred and forty-two perches, was, on March 27th 1837, awarded by the Orphans’ Court to George Deibert, at the appraised value of $38 per acre. It appeared that Henry Shelly was offered by George Deibert, and approved by the court, “ as his security for the payment of the widow and other heirs’ proportion thereof, agreeably to the Act of Assembly,” and the court thereupon “adjudged the said purpart, marked A, to the said George Deibert, and to his heirs and assigns for ever, he having entered into the usual securities to pay the other heirs according to law.” This order was attested by Joseph Morgan, clerk of the Orphans’ Court, and was the only record connected with the partition that could be found.
    Christina Deibert, widow of said John Deibert, deceased, died on April 17th 1858.
    On June 16th 1862, George Deibert confessed a judgment in favor of Jacob Deibert and the other heirs of John Deibert, deceased, in an amicable action in debt on recognisance, executed by the defendant to the Commonwealth of Pennsylvania, for the use of the widpw and other heirs of John Deibert, deceased, to secure their respective proportions of the appraised value of that part of the real estate of John Deibert, deceased, marked A, containing eighty-two acres and one hundred and forty-seven perches, dated-, and filed in the register’s office of Schuylkill-county.
    The whole amount for which judgment was confessed by the agreement then entered into was $2705.52, which included the amount unpaid to some of the heirs for their respective interests in ■the purpart outside of the widow’s dower.
    This judgment was revived May 25th 1867, and again June 14th 1872, but was not duly revived thereafter.
    Prior to June 17th 1862, the date of the entry of above judgment, viz. : on 17th March 1860, Samuel Ilillbish entered a judgment confessed to him by George Deibert, for $1044. Upon this a scire facias to revive, issued 11th February 1865; the judgment was also revived 16th February 1870, and again on February 1st 1875.
    George Deibert having died, an application was made by his administrator for the sale of his real estate, consisting of the purpart of eighty-two acres and one hundred and forty-two perches, before mentioned, for the payment of debts. At this sale, Samuel Hillbish became the purchaser for $4130; of this amount he paid in cash $1665, and claimed that he was entitled to receipt for the balance on his judgment as a lien-creditor of George Deibert, deceased, under the Act of 20th April 1846, sect. 1, relating to lien-creditors becoming purchasers at judicial sales : Purd. Dig. 655, Pamph. L. 411. Fergus G. Farquhar, Esq., was appointed auditor to marshal the liens against the estate, and the exceptions to his report raised the questions in the -case.
    The heirs of John Deibert, deceased, resisted the claim made by Ilillbish, to have the balance of the purchase-money appropriated to his judgment against George Deibert. They contended that George Deibert entered into a recognisance to secure to them their respective interests in purpart A, awarded to him by the Orphans’ Court, and that the auditor erred in deciding that their right extended no farther back than to the judgment confessed to them by George Deibert, and that, therefore, the judgment of Ilillbish was entitled to priority.
    The -court, Pershing, P. J., in passing upon the auditor’s report, inter alia, said:
    “ What was the nature of the security given by George Deibert ? The giving security for the shares of the other heirs was a condition precedent without the performance of which no estate vested in George Deibert: Smith v. Scudder, 11 S. & E,. 325. If, therefore, he gave no security, the judgment of Hillbish would be of little or no value as a lien.
    “ The act does not limit the discretion of the court as to the kind of security that may be acquired under the 37th, 38th and 39th sections of the Act of 29th March 1832. The party accepting is to give real security by recognisance or otherwise, to the satisfaction of the court. The action of the court, in awarding purpart ‘A’ to George Deibert, ‘he having entered into the usual securities to pay the other heirs according to law,’ the auditor discusses at. length, and decides that there is no evidence that the security in this case was a recognisance, and, therefore, holds it was a mere personal obligation on the part of George Deibert to the other heirs. But I think the evidence is stronger that a recognisance was the security given, than that it was a bond or other personal obligation.
    “As far back as the case of Walton v. Willis, 1 Dallas 265, the Supreme Court said that where an heir-at-law takes an intestate’s lands at a valuation, the Orphans’ Court ought, instead of bonds, to take recognisances by which the lands themselves would be bound for the distributive shares. That this was generally followed by the lower courts, and a recognisance adopted as the usual security, is apparent from the report of the commissioners, who drafted the Act of 29th March 1832, relating to Orphans’ Court. In their remarks on the 37th section, they say : ‘ We have introduced the word recognisance into the latter clause of this section, that being the kind of security which is most usually taken, and, it appears to us, the most proper to be taken, although we have not felt ourselves authorized to limit the authority of the court to this mode.’ That the usual security required by the court of George Deibert, in accepting the purpart awarded to him, was a recognisance, was expressly acknowledged by him in the judgment confessed'to the other heirs. All the parties seemed to have acted on that understanding. Some of the heirs have been paid in full for their interests, exclusive of the widow’s third. As to the others the balances were ascertained and set forth in the judgment. No bond or personal obligation is heard of in this settlement between the parties. If a single bond was given, or separate obligations were given to each of the heirs, they would, of course, be in their possession, and the judgment, it would be fair to presume, would be based upon it then, instead of an admitted recognisance. Notwithstanding the able argument of the auditor on the point, we think he erred in his ruling that the security given in the Orphans’ Court by George Deibert was a personal obligation and not a recognisance.
    “ The parties immediately interested on the one side and the other, were in a position to know what kind of a security was given.
    “ It is to be regretted, however, that we are now compelled, in some degree, to guess what are the rights of the parties, when a single word, in the proper place, at the proper time, would have avoided all this difficulty.

      “ In Cubbage v. Nesmith, 3 Watts 314, it was held that a minute that a recognisance was taken and filed was amply sufficient to give notice to purchasers or creditors'of the existence of the lien. In the case in hand, if the entry on the docket, signed by the clerk of the Orphans’ Court was not of itself actual notice, it seems to me to have been amply sufficient to put Hillbish on inquiry. A party is not to be deprived of an estate which he has a right to take, because of negleet on part of the court, or the clerk fails to do his duty: Gregg’s Appeal, 8 Harris 148 : see also Riddle & Pennock’s Appeal, 1 Wright 177.
    “ The judgment confessed by George Deibert to the other heirs, on 17th June 1862, includes the item of interest from May 3d, 1838, to June 7th 1862, $1522.96, less amount of $372.72, credited on account of interest; arrears of interest due in lifetime of the widow to go to her administrators, not to next of kin : Edwards v. Hooper, 2 Whart. 420, and other cases. The auditor is correct in ruling this out as against the judgment of prior lien-creditors.
    “ The auditor has correctly allowed to the heirs of John Deibert, deceased, their respective proportions in the statutory dower of Christian Deibert, deceased, his widow, with interest from the date of her death.
    “ In addition, I have come to the conclusion that he should have-allowed to those of the heirs who were not paid in full in the lifetime of George Deibert, for their interest in the purpart ‘A,’ exclusive of the dower, viz.: the two-thirds, the amount admitted to be due them severally by the terms of the judgment confessed by George Deibert, and entered on record on June 15th 1862, and this in preference to the claims of the judgment-creditors named in his report. To the extent thus indicáted the exceptions are sustained, and the report is hereby directed to be remitted to the auditor for correction in accordance with this opinion.”
    From this decree, Hillbish took this appeal.

      Hughes JFarquhar, for appellant.
    After the death of the widow of John Deibert the heirs had nothing further than a claim for the one-third of the appraised value of the purpart taken by George Deibert secured by a lien upon the land itself.
    They did not proceed to obtain a judgment on this lien or claim, but accepted for the same a judgment against the same person against whom they held the claim or lien, and acquired the means of making all his estate both real and personal liable for such payment. This judgment then was a much higher security than the mere debt secured by a lien against the- owner of the land. By accepting the judgment the right to sue upon the debt secured by the lien was gone : Jones v. Johnson, 3 W. & S. 276.
    It is true that in said judgment given by George Deibert to the heirs, there is included also the amounts due them respectively on the two-thirds of the appraised value not charged upon the lands, but they are not blended in the judgment, each item is set out separately, and therefore, the two indebtednesses are not blended, and the heirs of John Deibert, deceased, having obtained a judgment, not upon, but for the same debt as the lien, from the same person who as owner of the land was bound to pay the debt, the debt charged upon the land was merged in the judgment, and the rights of the heirs as to lien were confined to the rights conferred by the judgment. '
    The same reasoning will apply to the claim of the heirs to the amounts due them respectfully under the alleged recognisance, which they claim was given by George Deibert to secure to them the two-thirds of the appraised value of the lands taken. If any such recognisance ever existed it was merged in said judgment.

      J. W. Roseberry, for appellant.
    The record shows a decree of the court adjudging the purpart to George Deibert, his heirs and assigns, and that he had entered into the usual securities, and that Henry Shelly was approved of as security; but whether the security was a recognisance or otherwise, as required by the act, does not appear.
    The usual securities required at the time of these proceedings, by the court of Schuylkill county, as well as the courts throughout the state were recognisances. The Act of March 27th 1832, on which these proceedings were founded, provides for proceedings on recognisances at some length as though they were the only securities required.
    The decree of adjudication enjoining payment of the valuation money is a debt of record, and the statute gives to the widow and heirs a lien for the payment thereof, and suit may be brought upon such decree under the circumstances of this case without the production of the recognisance: Ilise v. Geiger, 7 W,. & S. 273. They cannot be deprived of the benefit of the lien: Medlar v. Aulenbach, 2 P. & W. 355. The legislature has prescribed no form for recognisances in the Orphans’ Court, and therefore, an obligation of record in any form is sufficient: Riddle & Pennock’s Appeal, 1 Wright 181.
    “ The lien of a judgment is limited by statute, but that of a recognisance is not — it is indefinite :” Ankeny v. Penrose, 6 Harris 193. A recognisance need not be entered on the Orphans’ Court docket. A minute of it on the docket is sufficient to give notice to purchasers or creditors of the existence of the lien: Hartman’s Appeal, 9 Harris 488.
    With respect to the one-third of the valuation the act expressly declares that it shall remain charged upon the premises for the benefit of the widow during her life, and for the security of the heirs after death. It is not ‘in the power of the court to divest the liens of the widow and heirs in the teeth of an act so express in its provisions : Medlar v. Aulenbach, supra. It is a matter of no* consequence what term of law may be applied to the interest of the widow and heirs; it is sufficient to say that it remains a charge upon the premises without limitation as to time for the security of the widow and the heirs, subject only to the presumption of payment from lapse of time.
    The judgment created no new lien, nor did it extinguish or affect the lien of the heirs, which continued as a lien, with the same force and effect as if the judgment had not been entered.
   Mr. Justice Mbrcur

delivered the opinion of the court, May 5th 1879.

This is a distribution of the proceeds of the real estate of George Deibert, deceased. It was sold by his administrators in pursuance of an order of the Orphans’ Court, for the payment of debts.

It had previously been owned by John Deibert, who died seised thereof. He left surviving a widow and nine children, George being one of them.

In October 1836, the Orphans’ Court of Schuylkill county awarded an inquest upon the lands of which John died seised, with a view of making partition of the same. The, inquest appraised this purpart, and in March 1837, George elected to take it at the valuation. The court approved the security he offered for the payment of the widow and other heirs’ proportion thereof, and adjudged the purpart to said George and to his heirs and assigns for ever, “he having entered into the usual securities to pay the other heirs according to law.” The record omits to state the form of the security, and neither bond nor recognisance can be found. In April 1858 the widow of John died. In June 1862 George entered an amicable action and confession of judgment in favor of the other heirs of John, for a sum agreed on as due “ on recognisance executed by him to the Commonwealth of Pennsylvania for the use of the widow and other heirs of John Deibert, deceased.” It included not only the one-third of the appraised value of.this purpart, on which the widow was entitled to interest during her life, but also certain portions of the two-thirds decreed to be paid to the other heirs at the time of the partition, and which remained unpaid. This judgment was revived in May 1867; but more than five years elapsed before it was again revived.

Before the last revival the appellant obtained a judgment against George, which thus became a lien, and by due revivals continued such at the time of his death. Hence if the liens rested on the judgment alone, the one in favor of the appellant was the prior lien at the death of George. The learned judge held the evidence sufficient to prove that the security given was in the form of a recognisance ; but notwithstanding the confession of judgment, and the omission to revive it within five years, that the recognisance was a continuing lien until the payment of the whole obligation which George assumed when the allotment was made to him. He therefore decreed that the unpaid portions of the two-thirds, as well as the third on which the widow drew the interest, should be paid in preference to any judgments subsequently recovered against George. This is assigned for error.

The 41st section of the Act of 29th March 1832, relating to. the partition of the real estate of a decedent declares, “should the widow of the decedent be living at the time of the partition, she shall not be entitled to the payment of the sum at which her purpart or share of the estate shall he valued, but the same, together with interest thereof, shall be and remain charged upon the premises, if the whole be taken by one child or other descendant of the deceased, or upon the respective shares, if divided as herein before mentioned, and the legal interest thereof shall be annually and regularly paid by the persons to whom such real estate shall be adjudged, their heirs or assigns holding the same, according to their respective portions, to the said widow during her natural life, in lieu and full satisfaction of her dower at common law, and the same may be recovered by the widow by distress or otherwise, as rents in this Commonwealth are recoverable. On the death of the widow, the said principal sum shall be paid by the children or other lineal descendants, to whom the said real estate shall have been adjudged, their heirs or assigns, holding the premises to the persons thereunto legally entitled.”

The Act of 19th April 1794, in substantially like language declared “ the purpart of the widow shall be valued, and the same together with the interest, shall remain charged on the premises ; the interest to be paid annually and at her decease the principal sum to be distributed and divided among the children, and representatives of the intestate.” The character and duration of the widow’s lien under this Act of 1794, received a careful consideration in Medlar et al. v. Aulenbach and wife, 2 P. & W. 355. It was there held that when the legislature thought proper to divest the right given to the widow, by the common law, they took effectual care of her interest by creating a statutory lien to the extent of the value of the purpart which with the interest was to remain charged on the purpart; and as the death of the widow might occur at an indefinite period of time, they had also extended the lien to the heirs and legal representatives. In this respect a distinction was made between the purpart of the widow and the shares of the heirs of the intestate. The latter are placed on a different footing. They are payable at a fixed and short period of time after the allotment. But as to the sum, on which the widow draws the interest, and to which the heirs are not entitled until after her death, the statute has stamped the same continued lien, as on the interest ■which it produces. Nor does the fact that security was given for its payment by either bond or recognisance change the effect of the lien. It is merely cumulative to guard against accidents by fire or otherwise. It is collateral only, the law creates the lien: De Haven v. Bartholomew, 7 P. F. Smith 126. The lien thus created by statute for the- security of the widow’s rights, can no more be lost by the recovery of a judgment or merged therein, than the lien of a recorded mortgage is lost or merged by the issuing of a scire facias, and obtaining judgment thereon. Nothing less than payment discharges the lien. A sheriff’s sale on a judgment obtained against the heir to whom the purpart was allotted, will not divest the widow’s lien : Fisher v. Kean, 1 Watts 259. Nor will an actual payment to the administrator authorized by an order of court to sell the land, under proceedings in partition, discharge the lien which the heir has- in the share allotted to the widow : Hise v. Geiger, 7 W. & S. 273. As, however, this preferred and continued lien does not extend to the portion which the heirs of John were entitled to on his death, the decree must be reversed in so far as it prefers the several sums due on two-thirds of the whole valuation, but in holding the heirs entitled to their respective shares in the one-third allotted to the widow, no error was committed.

Decree reversed, and record remitted with instructions to decree distribution conformably with this opinion.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Lancaster Fire Insurance Co. versus George L. Lenheim & Co.
    1. A policy of fire insurance was upon a stock of “general merchandise of all kinds usually kept in a country retail store.” The policy provided against loss by fire to the property specified, “ except as hereinafter provided.” Immediately following this clause was a condition that the company should not be liable unless by special consent in writing endorsed on the policy for any loss where “ turpentine or benzine” were deposited, stored, kept or used, on the premises. Turpentine and benzine were both kept for sale, but no consent had been given therefor. Held, that this was a violation of the condition and avoided the policy.
    2. The insurance clause on the general stock of merchandise was in the written portion of the policy. The prohibitory clause was in the printed portion. The court below instructed the jury that the latter was repugnant to the former and could not be interpreted so as to prevent a recovery if they found that “ turpentine and benzine” were part of all kinds of merchandise usually kept in a country store. Held, to be error.
    3. Birmingham Insurance Co. v. Kroeger, 2 Norris 64, followed.
    March 21st 1879.
    Before Sharswood, O. J., Merour, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Susquehanna county: Of July Term 1878, No. 53.

      Assumpsit by George L. and Lewis S. Lenheim, trading as George L. Lenheim & Co., against the Lancaster Eire Insurance Company, upon a policy of insurance for $1000, issued on 24th September 1874, for one year, to Lewis S. Lenheim, “ on his stock of merchandise of all kinds usually kept in a country retail store.” The store was in Great Bend borough, Susquehanna county.
    On January 1st 1875, Lewis S. Lenheim sold half his store to his son George L., and the business was afterwards conducted in the name of the plaintiffs. The policy was assigned to George L. Lenheim & Co., with the knowledge and assent of the company.
    On 29th May 1875, the insured building and contents were destroyed by fire.
    One of the conditions of the policy was: “ The company is not to be liable, unless by special consent, Jn writing, on the policy, where gunpowder, phosphorous, saltpetre, naphtha, benzine, camphene, turpentine, burning-fluid, spirit gas, crude coal or earth oils or petroleum, or any other articles subject to legal restriction, are deposited, stored, kept or used.” The inventory taken January 1st 1875, when L. S. Lenheim sold out to his son, showed there were thirty-five gallons of turpentine on hand and ten bottles of benzine, and it appeared by plaintiffs’ own evidence that these articles were kept in the store and for sale up to the time of the fire. The court permitted the plaintiffs to give evidence that “ benzine and turpentine” were usually kept in country stores.
    The defendant submitted the following points, to which are appended the answers of the court:
    1. If the jury believe that benzine, gunpowder, saltpetre or turpentine, or either of these said articles, were deposited, kept or used in the store of the plaintiffs at the time of the fire, or at any time during the life of the policy, to wit, from September 24th 1874 to the time of the fire, unless by special consent, in writing on the policy, then the policy is void and the plaintiffs cannot recover.
    Ans. “ This point is denied, for the reason that the question is submitted to you to find whether the articles were such as are usually kept in a country store, as we stated in the general charge. By the written portion of the policy, the insurance was on the general stock of merchandise of all kinds usually kept in a country store. The prohibitory clause in the policy is repugnant to this, and cannot be interpreted so as to prevent a recovery, if you find these articles were a part of all kinds of merchandise usually kept in a country store.”
    3. It being the undisputed testimony that benzine and thirty-five gallons of turpentine were deposited, stored; kept or used upon the premises of the plaintiffs, covered by the policy, on January 1st 1875, without special consent in writing on the policy, therefore plaintiffs cannot recover.
    Ans. “ This point is denied. We refuse to say, as a matter of law, that if the facts assumed in this point were true the plaintiffs cannot recover.”
    In the general charge, the court, Morrow, P. J., inter alia, said :
    “ Under this condition of the policy, the defendant claims there is a perfect defence to this action, provided the jury find that either of these articles were kept, stored or used in the store at any time after the policy was issued to the time of the fire, that is, during the life of the policy, and in support of this defence the case of the Birmingham Fire Insurance Co. v. Kroegher, 2 Norris 64, is relied on. The policy issued by the Birmingham Ins. Co. contains substantially the same provisions as to benzine, gunpowder, &c., as contained in the policy of the defendant in this case, and the policy was held to be void, it having been shown that Kroegher kept a barrel of petroleum at a time for sale. But the reasoning in that case will not apply to this, for in this case the insurance is expressly, in the written part of the policy, on the stock of general merchandise of all kinds usually kept in a country store, and hence we refuse to charge, as a matter of law, that the defendant is not liable if you find the plaintiffs, or either of them, kept or used these prohibited articles in the store, but submit to you to find whether they were such kinds of merchandise as are usually kept in a country store. If they were, the defendant is liable; at least the fact they or either of them were deposited, stored, kept or used in the store, would not avoid the policy.” * * *
    “ This construction of the policy does not militate against the doctrine of Birmingham Fire Insurance Co. v. Kroegher, supra, but seems to'us to be reasonable and just. It is also in accordance with the case of the Franklin Ins. Co. v. Updegraff, 7 Wright 350. In the last case the insurance was ‘on merchandise such as is usually kept in country stores,’ and the question was submitted to the jury to find whether china, hardware, glassware, &c., were such merchandise as are usually kept in country stores, although it was provided in the policy that it would be void if the assured kept such articles, because they were more hazardous and subjected the insured to higher rates of premium. This principle, it seems to us, decides this case so far as relates to this clause in the policy. It gives to it full force and effect, and also to .the provision that the assured had the right to keep such merchandise as is usually kept in country stores.” * * *
    “ The prohibitory clause is repugnant to the written clause, and the contract must be so construed as to give, if possible, to both their proper force and effect. The written clause, according to the interpretation we adopt, is to have effect in preference to the repugnant printed clause : Flanders on Fire Ins. 93; and is effectual if the jury find from the evidence that the prohibited articles are such as are usually kept in country stores. If you so find, we think the plaintiffs are entitled to recover in spite of the prohibition.’

      Yerdict for plaintiffs for $1163, and after judgment thereon, defendant took this writ, and assigned as error the above answers to points and the foregoing portions of the charge.

      W. H. & JL. O. Jessup, for plaintiff in error.
    This was not a stock of dry goods, groceries, hardware or drugs; these have their particular rates; but a stock containing a little of many branches, denominated “a country store.” This was the general designation of the class of insurance requested. And yet some of the articles known to belong to this classification are unusually hazardous and generally prohibited, and are insured only at special rates. It is a necessity for the protection of insurance companies that they should except out of this general classification inflammable oils and their products. By the exception in this policy, it should read, “ We will insure all such merchandise as is usually kept in country retail stores, except benzine, turpentine, &c.” We admit that if the written part could not take effect at all without nullifying the printed clause, the latter must yield, as if the insurance had been upon “ his stock of benzine and turpentine,” then the printed clause prohibiting the use or storage of those articles must yield, otherwise the contract is of no effect. But here is an insurance upon merchandise, under a general classification ; no particulars mentioned; and the condition is only an exception of certain particularly specified articles coming under that classification, which are prohibited, unless special consent in writing is given. There is no repugnancy, and the whole contract is intelligible. The case is “ on all fours” with Birmingham Ins. Co. v. Kroegber, 2 Norris 64, and is sustained by Steinbach v. The Relief Eire Ins. Co., 13 Wall. 183. The cases relied upon by the court below, and cited here by the defendant in error, are distinguishable in this, that the articles there prohibited were necessary to the business insured, and not exceptions out of a general classification of a few prohibited articles, which might or might not be carried as stock without detriment to the trade.

      Little ‡ BlaJceslee, for defendants in error.
    Where the policy describes the insured as engaged in a certain trade or business, it has been held that he is permitted, by implication of law, to keep and use all articles necessary for the customary carrying on of such trade, although such goods are classed as extra-hazardous: 2 Pars, on Cont. 424. The plaintiff in error concedes this well-settled principle as to trade descriptions, but justifies it on the ground of the necessity to support the trade. The same principle rules our case. If the writing insures by describing a trade, the general words in writing include all articles used in that trade, and no exceptions in print will prevail, because repugnant. But we need not depend on reasoning; we have well-established precedents for our guide: Franklin Fire Ins. Co. v. Updegraff et al., 7 Wright 352; Pindar v. King’s County Ins. Co., 36 N. Y. 618; Whitmarsh et al. v. Conway Fire Ins. Co., 16 Gray 359 ; Flanders on Fire Ins. 81; Niagara Fire Ins. Co. v. De Graff, 12 Mich. 124. Birmingham Ins. Co. v. Kroegher, supra, is distinguishable from this case. In that case the written stipulation was for an insurance on “stock of merchandise contained in store.” The printed terms prohibited the keeping of carbon oils, &c. It being shown such oil was stored and kept, of course it was held fatal. “ Stock of merchandise contained in store,” are not words descriptive of a class of goods. It was argued that the word merchandise meant such as are usually kept in a country store, and here is where the case failed. They asked to have implied what we have expressed.
   Mr. Justice Gordon

delivered the opinion of the court, May 7th 1879.

The policy, which forms the foundation of this suit, covers a stock of “general merchandise of all kinds usually kept in a country retail store.” The insurance is “against all immediate loss or damage as may occur by fire to the property specified, not exceeding the sum insured nor the interest of the assured in the property, EXCEPT as hereinafter provided.” -Then, in immediate connection yith the clause containing the above, comes the condition that the company shall not be held liable, unless by special consent in writing endorsed thereon, for any loss “ where gunpowder, phosphorous, saltpetre, naphtha, benzine, camphene, turpentine, burning-fluid, spirit-gas, crude, .coal or earth oils, or petroleum, or any other articles subject to legal restriction, are deposited, stored, kept or used.” It will thus be seen, that this stock of general merchandise was insured, subject to certain exceptions and conditions in said policy specified, neither can it be justly said that care was not taken to call attention to these exceptions and conditions, for the ■word “ except” is printed in large, and the words “ benzine” and “turpentine,” in small capitals. Besides this, the policy was originally taken in the name of Lewis S. Lenheim, aud was transferred to the plaintiffs, subject to the conditions therein contained; the usual complaint, therefore, of small print and want of notice does not apply in this case. The contract of the parties, then, is very easy of comprehension. The company agreed to insure for Lenheim & Co., this stock of general merchandise of all kinds usually kept in a country store, excepting certain articles therein specified, among others turpentine and benzine, of which it is said, if these are kept the policy shall be void. The policy was accepted under and subject to these conditions, and it is now produced in order to charge the company. May the defendant plead these conditions or may it not ? There is n.o proof of fraud, by it or its agents, whereby it might be estopped, and the conditions are part and parcel of the consideration of the policy. In consequence of them the plaintiffs obtained their insurance at rates less than they otherwise could have done. The excepted articles are extremely dangerous; there is good reason why they should be so 'excepted, and there is, therefore, nothing unreasonable in the condition that the policy should be forfeited upon the wilful violation of that condition.

But the court below says, “By the written portion of the policy, the insurance was on the general stock of merchandise of all kinds usually kept in a country store. The prohibitory clause in the policy is repugnant to this and cannot be interpreted so as to prevent a recovery, if you find these articles were part of all kinds of merchandise usually kept in a country store.”

Herein, however, is the error in supposing there is any repugnancy between the written and printed parts of the policy. There is certainly no repugnancy in agreeing to insure a general stock of merchandise subject to the condition that gunpowder, petroleum, turpentine and benzine shall not form part of such stock; Surely there is nothing so unusual in reservations and conditions in contracts as to make them the subjects of unusual construction or of extraordinary consideration. Surely, without repugnancy, one may contract for' the sale of a plantation of one hundred acres of land reserving thereout ten acres. Or suppose the contract in controversy to be for the sale of this general stock of merchandise, excepting the articles above mentioned, could any one doubt but that the exception was good ?

This case is as nearly like that of the Insurance Co. v. Kroegher, 2 Norris 64, as two cases can be. There, as here, the insurance was upon a general stock of merchandise, but we held that the violation of a condition, which provided that petroleum should not be kept, avoided the policy. In that case all the authorities, now cited by the plaintiffs below, were adduced, and there is nothing now proposed of such a character as to require us to go over the ground anew. We have only to add, that if the plaintiffs’ own evidence was true, they had on hand, at the time of the fire, turpentine enough to avoid the policy. The benzine might, on the principle de minimis, be disregarded, since eight or ten small vials of it was a quantity so trifling as not to be worth attention.

As what we have said, in effect sustains all the assignments of error, we need not speak of them seriatim.

Judgment reversed, and a venire facias de novo ordered.


author: Mr. Justice Mercur

text:
    Richardson versus Clements.
    1. The rule that the language making an exception or reservation in a deed is to be construed most favorably to the grantee, only applies where the language is doubtful, and does not obtain where the language is sufficiently clear to define the character and extent of the exception or reservation.
    2. The properties of plaintiff and defendant were originally owned by H. and used as one property. During his ownership he supplied the buildings with water by forcing it through pipes with a hydraulic ram. II. sold the property to B., who used a wheel as the power to force the water to the buildings. B. sold a portion of the tract to M., under whom plaintiff held title, and retained the balance with the buildings, which became vested in defendant. In the deed from B. to M. was this reservation, “subject to the right and use by the said B., his heirs and assigns, of a supply of spring water by means of a hydraulic ram, wheel or other process of forcing water,” so that a supply of water may at all times be had. The defendant entered upon the land of plaintiff to erect a windmill in place of the wheel as the power to force the water. Reid (affirming the court below), that he had the right to do so.
    3. The language used in the deed indicated no intention to deny the use of such improved process as science might discover or mechanical ingenuity invent ; and a windmill was not outside of the “ other process” reserved.
    March 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Montgomery county: ' Of January Term 1878, No. 24.
    Amicable action of trespass guare clausum fregit, wherein Charles Richardson was plaintiff and Samuel Clements defendant.
    A case was stated for the opinion of the court below, the substance of which is set forth in the opinion of this court.

      Pancoast, for plaintiff in error.
    The clause in the deed is a reservation or exception, and must be construed most strongly against the grantor and most favorably to the grantee: Whitaker v. Brown, 10 Wright 199; Trout v. McDonald, 2 Norris 144; Buller v. Denning, 5 B. & C. 842; Danner v. Spurrier, 3 Bos. & Pul. 399; Barnes v. Burt, 38 Conn. 541.
    When, in pursuance of a grant or reservation of a right to an easement, such easement has been located and defined, the right is exhausted, and the owner of. the dominant tenement cannot make a material change in the location or character of the easement: Galloway v. Wildner, 26 Mich. 97; Fitzhugh v. Raymond, 49 Barb. 646 ; Hull v. Fuller, 4 Vermont 199 ; Washburne on. Easements, sect. 3, pi. 22; Moorhead et al. v. Snyder, 7 Casey 514.
    The words “ or other process,” immediately following the words “hydraulic ram, wheel,” are to be construed as referring to things of the same kind as those particular words, that is, a process of which water should be the motive power. No process in which wind, steam, or any motive power other than water was intended or thought of by either of the parties to the deed. Where general words follow particular words, the rule is to construe the former as applicable to the things or persons particularly mentioned : Sedgwick on Statutes 423; Sandiman v. Breach, 7 B. & C. 96, 14 E. C. L. Rep. 22; Rawlings v. Jennings, 13 Yes. 39; Cavendish v. Cavendish, 1 Br. Oh. R. 467; Ingill v. Nooney, 2 Pick. 365; Bellany v. Bellany, 6 Florida 62.

      O. S. Stinson, for defendant in error.
    When property is granted, all that is necessary for the enjoyment of the grant is impliedly granted as incident to the express grant. And the same rule of construction applies to an exception in a grant: Allen v. Scott, 21 Pick. 25.
    It is not alleged that any change is made in the substance of the thing itself, but it relates only to the means of obtaining it. If wind can be used as a power, and used for forcing water (which is not doubted), doing no injury to the plaintiff (which is not pretended), is it not clearly an “ other process of forcing water.”
    The reservation of the right to a supply of water by “ other process of forcing,” implied the right to introduce any new or improved method to obtain that supply : French v. Morris, 101 Mass. 68 ; Bishop v. North, 11 M. & W. 418; Attorney-General v. Cambridge Gas Co., 6 Eq. Oases 304; Daud v. Kingscote, 6 M. & W. 174; Stevenson v. Wiggin, 56 N. H. 308 ; Trout v. McDonald, supra; Hart v. Hill, 1 Whart. 124; Cressy. Yarney, 5 Harris 496.
   Mr. Justice Mercur

delivered the opinion of the court, May 7th 1879.

This is a case stated. The parties own adjoining lands. Both properties were formerly owned by a Mr. Hallowell. While thus the owner of the whole he put in a hydraulic ram, on that portion of the land now owned by plaintiff, and thereby supplied with spring water his mansion-house on the land now owned by the defendant. He conveyed the whole property to Mrs. Butler. She continued for some time, to use the hydraulic ram to force the water to her house; but afterwards substituted a water-wheel in place of the ram. While thus procuring the water by means of the wheel, she conveyed about twenty acres of the land to one McNulty, from whom plaintiff acquired title. On the part conveyed was situated the farm-house, spring-house, poultry-house, and a large barn. She retained about seventeen acres, on which was the mansion-house, stone barn, stables, gardener’s house and green-house. The deed which she executed to McNulty, contains the following clause, “ subject nevertheless to the right and use by the said Gabriella M. Butler, her heirs and assigns, of a supply of spring water, by means of a hydraulic ram, wheel, or other process of forcing water to the said Gabriella M. Butler’s premises ; together with the free ingress, egress, and regress, to and from a certain pond, on the premises hereby conveyed, for the purpose of keeping up the same, and making all necessary repairs thereon, so that a supply of water may at. all times be had; and of taking ice therefrom when it first freezes of sufficient thickness suitable for filling the ice-house on the premises of said Gabriella M. Butler, her heirs and assigns.” After her sale Mrs. Butler continued to use the water-wheel until she conveyed to the defendant. He has continued to procure the -water by the same process. He has established on the premises “ a family or private boarding school.” Now he has entered on the premises of the plaintiff with workmen “ to remove the water-wheel, and in place of it, and on the site thereof, to build and erect a wind-mill, with which, using wind as a motive power, he would supply his premises with water from the plaintiff’s premises.”

The question is whether, under the reservation in the deed, the defendant can enter on the premises of the plaintiff for the purpose mentioned and substitute a Avind-mill in place of the water-wheel. The court beloAV was of the opinion, the defendant had that right, and entered judgment in his favor on the case stated.

It may be conceded, when the language making an exception or reservation in a deed, is doubtful, it should "be construed more favorably to the grantee. It is only Avhen it is doubtful, that this rule can be applied. It has no place when the language is sufficiently clear to define the character and extent of the exception or reservation. How is it in the present case ?

An agreement is the assent of tAvo minds to the same thing. It should be construed in the light of existing facts and circumstances under which the parties entered into it. It should be so interpreted as to effect the objects in respect to which the parties proposed to contract. What then were the circumstances when this contract was executed? The main object to be secured and protected, Avas a supply of water. It Avas essentially necessary for a proper enjoyment of the premises which she retained. While she OAvned the Avhole property she had put in and used such forcing power as she saAV proper. The hydraulic ram had proved unsatisfactory to her, and she had substituted a Avater-wheel. She Avas uncertain whether that would continue satisfactory. She Avas unAvilling to limit the exercise of her right to the use of the wheel; nor if she changed it, did she wish to be compelled to return to the ram. She desired to be untrammelled as to any precise process in forcing the water. She Avas unable or unwilling to name all the different mechanical powers by which she might obtain the Avater. With all these objects in vieAV, the conveyance declares that it is subject to the right and use of Mrs. Butler, her heirs and assigns of a supply of spring Avater.” The method of procuring it may be “ by means of a hydraulic ram, wheel, or other process, of forcing water.” The primary and ultimate end of the reservation, is stated nearer the closing part of the contract in these words “ so that a supply of water may at all times be had.” To secure this .end, not only either of the methods already tried might be employed, but also “ other process of forcing water.” A perpetual supply of water was to be reserved. The language used indicates no intention to deny the use of such improved process as science may discover or mechanical ingenuity invent for forcing water. It may not be an injurious or offensive process not contemplated in the reservation. The windmill is not averred to be either the one or the other ; nor that it works any substantial injury to the plaintiff, either by oecuying a larger quantity of land, or by taking an increased volume of water. The question is simply, whether a windmill is itself outside of the “ other process ” reserved ? We think it is not. The learned judge was correct in entering judgment in favor of the defendant.

Judgment affirmed.

Woodward, J., dissented.


text:
    Heysham versus Dettre.
    1. Heaters and. gas-fixtures, though appurtenant toa house are personal property and may be the subject of an oral grant or reservation.
    2. It' is competent to show by parol that a heater and gas-fixtures were to pass to the purchaser of a house, under a written agreement in which no mention was made of such articles.
    3. Defendant purchased a house of plaintiff. Before the delivery of possession plaintiff claimed the right to remove the heater and gas-fixtures, which defendant denied. Plaintiff threatened to remove them, when defendant gave his note for the value, making it payable to plaintiff alone. Held, in a suit on the note, that defendant could not assert that there was fraud or duress in the procurement of the note.
    4. AVhere evidence is rejected, which, if admitted, would have been harmless, it is no ground for reversal.
    March 25th 1879.
    Before Sharswood, C. J., Mercur, (Jordon, Paxson, Woodward, Truniíey and Srerrert, JJ.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1878, No. 262.
    Assumpsit by Ambrose Dettre against Robert Heysham on a promissory note of the defendant for $110 made payable to the plaintiff ninety days from date. The defendant pleaded non assumpsit, payment with leave, fraud, want of consideration and set-off. It was in evidence on the part of defendant, that he bought a house of plaintiff; that when he bought he believed the fixtures, i. e., the gas-fixtures and the heater, passed with the property; that subsequently the plaintiff informed him that they did not pass, and threatened to remove them, unless an additional consideration was paid; that defendant, relying upon a local usage, insisted they were his, and so believed them to be, but finally, and in order to prevent injury to the house, and under the influence of a threat from the plaintiff that he would strip the house of these fixtures, did sign and deliver the note in suit. The purchase was made under an agreement in writing, in which there was no mention of the heater and gas-fixtures. The defendant offered to prove that before the execution of this agreement, the plaintiff had agreed that the heater and gas-fixtures should go with the house. The admission of this evidence was objected to and the court sustained the objection.
    In the general charge the court, Ross, P. J., inter alia, said: “lam unable to see under the testimony any proof of that duress, which, under the law, wmuld avoid a contract. An act influenced by a desire for peace, and to avoid a contest as to a civil right, is not duress in law, when this desire is the ruling and controlling motive. ’ I can see no evidence of a physical duress or constraint; and there was no fraud, which constructively amounts to constraint and is viewed by the law as an avoiding duress. * * * The defendant alleges fraud. I am unable to discern it. The plaintiff stood on his rights under the written agreement; and that was the final action of both. The defendant, after the agreement was signed, bargained or dickered for these fixtures, until the plaintiff reduced his claim on their account to §110, and, as he declares, drew it in a form that was non-negotiable by purposely omitting the words ‘ order or bearer.’ This was a trick neither moral nor honorable, for his purpose was to resist its payment and make defence against it at maturity in the hands of the drawee. The Statute of Frauds and Perjuries requires that there must be some note in writing of an agreement to convey land, and even a leasehold interest cannot be created by parol to continue for more than three years. Under the •written agreement for the sale and conveyance of these premises, I charge you distinctly the plaintiff had a. right to remove the fixtures, as to which the contention arose. I further charge you that this agreement cannot be changed, altered or modified by parol evidence of what occurred before its execution. What was said and agreed immediately at the time of its execution, and which led to its execution on the part of the defendant, may be enforced as a part of it. I can find no evidence of any such modifying agreement, made at the time of its execution or subsequently thereto, and therefore I repeat, if you believe the entire evidence in the case your verdict will be for the plaintiff,'With the inquiries for you as to the truth upon the- disputed matter as to the insurance. It is said that a fraud was practised upon the defendant in obtaining this note. I can see no evidence of' any actual fraud, nor of constructive fraud or duress. It does not even appear that the defendant gave the note under protest. Anxiety to prevent the plaintiff’s removal of the fixtures, a fear that the house would be injured by taking them out, a short notice of the plaintiff’s determination to remove them, all operated, I have no doubt, upon^ the defendant’s mind and induced him to give the note. This did not constitute an avoiding duress. Against all illegal acts upon the part of the plaintiff in violation of his contract, the defendant had his legal remedy by either an action at law for damages or by an application for an injunction. If he had no legal remedy he had no legal right to object; and if he desired the fixtures he had to buy them: If he had a legal remedy and resorted to a compromise, he is bound by its terms. Therefore it is apparent that this note, whether viewed simply as the consideration of the plaintiff’s right to the fixtures or as a compromise of his illegal claim to remove them, may be enforced against the defendant.”
    The verdict was for plaintiff, and after judgment thereon defendant took this writ and assigned for error the rejection of the above testimony and the foregoing portions of the charge.

      George N. Corson, for plaintiff in error.
    It was not for the court to discover the fraud but for the jury, and the opinion of the court was hurtful to the defendant’s case : Bank v. Maxwell, 81P. E. Smith 139; Boud v. Bronson, 30 Id. 363. The defendant should have been permitted to have shown what was really the agreement between the parties. If a note be given by a mistake under the impression of existing indebtedness, and it turn out there is no such indebtedness to the payee of the note the payee cannot recover from the maker merely because he gave a note: Boud v. Bronson, supra.

      Charles Hunsioher, for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, May 7th 1879.

There is no doubt but that the court below erred in excluding the defendant’s offer to show, by parol evidence, that the 'plaintiff had agreed that the gas-fixtures and heater should go with the house. They were personal property, and so were the subjects of ■ oral grant or reservation. The written agreement embraced realty exclusively, and there is nothing in it which precludes a collateral agreement concerning personal property. Growing crops pass by deed as appurtenant 'to land, and yet, as they are by custom personalty, a parol reservation of them is good: Backenstoss v. Stahler’s Adm’rs, 9 Casey 251; Harbold v. Kuster, 8 Wright 392. If, then, growing crops may be thus dealt with, we see no reason for dealing otherwise with a portable heater and gas-fixtures.

This error, however, is harmless. Whether there was such an agreement or not, was a matter about which the parties disputed; the one affirming, the other denying. Such being the case, the plaintiff had a right to retain the property until the question was legally settled. The defendant, however, professed to acquiesce in the plaintiff’s view of the matter, and after some bargaining and cheapening, executed and delivered the note in controversy, and so got possession of the disputed articles. '

There was in this, on part of the plaintiff, neither duress nor fraud. He had a right to insist on his understanding of the arrangement, and to make it the subject'of compromise; and we agree with the learned judge who tried this case, that the defendant’s small trick, in purposely making his note non-negotiable, in order that he might get possession of the disputed property, and at the same time leave the way open to impeach his own contract, was neither honorable nor honest.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Lewis’s Appeal. Skiles’s Estate.
    1. Equality is equity, and where distribution is to be made among two or more, without anything to indicate the proportions in which they are to take, the presumption is that the shares are to be. equal.
    2. A testator devised “ all the balance of my property to my sister for her lifetime, and at her death it is my desire that a part of it go to S. and his heirs.” The court below held that the bequest of a part was void for uncertainty; that as to the residue, subject-to the life-estate of the sister, the testator died intestate; that immediately upon his decease the same vested in her as his next of kin, under the intestate law, and consequently she took the entire residue absolutely, instead of a life-estate therein. Held, that this was error; that the testator was presumed to know that his sister was entitled to his property under the intestate law, and that his purpose was to designate some one to share said residue with her, and that in the absence of any indication of the proportions which they were to take, the shares must be equal.
    March 25th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunket and Sterrett, JJ.

    Appeal from the Orphans’ Court of Chester county: Of January Term 1878, No. 228.
    Appeal of Joseph J. Lewis, administrator of Hopkins Skiles, deceased, from the decree of the court in the distribution of the estate of William Skiles, deceased.
    An auditor was appointed to settle the account of said administrator, before whom it appeared that William Skiles died leaving a will, dated April 13th 1859, wherein, after giving sundry pecuniary legacies, and directing his executors to sell sufficient real and personal estate to pay debts and legacies, he disposed of the residue of his estate as follows:— .

      “Also, all the balance of my property, personal and real, I give and bequeath to my sister, Susanna Skiles, her lifetime, and at her death it is my desire that a part of it go to Hopkins Skiles and his heirs.”
    After the death of William Skiles, his executor proceeded to settle his estate, and filed two accounts — one April 13th 1860, and another January 7th 1861. On the 1st day of April 1861, pursuant to the power conferred by the will, he sold a tract of 89 acres and 88 perches of land to Susanna Skiles, only sister of the testator. The purchase-money, beyond what was needed for the payment of debts and legacies, amounted to $5779.66. She gave to the executor a mortgage for the payment of the principal of that sum, without interest during her life.
    Susanna Skiles held the land so purchased till May 22d 1876, when she died, leaving a will, by which she disposed of her estate to others than the legatees of her brother. She appointed William J. Burnside her executor, to whom letters testamentary issued.
    The executor of William Skiles having collected a part of the mortgage given to secure the purchase-money, filed a supplementary account, charging himself with the sum received, and showing a balance for distribution of $2830.10. The account was confirmed nisi, September 10th 1877, and an auditor was appointed to make distribution.
    The nearest of kin of William Skiles, at the time of his death, were Susanna Skiles, an only sister, and several first cousins— fourteen in number — among whom was Hopkins Skiles, who died in the lifetime of Susanna, in Maryland, leaving a widow and children. The fund before the auditor was claimed by his administrator in this state and by the executor of Susanna Skiles.
    The auditor, inter alia, reported “ One view of this clause of the will as presented to the auditor is that the division or parting is to be made between ‘Hopkins Skiles and his heirs,’ and Susanna Skiles ; in other words that the clause should be made to read ‘ a part of it to go to Hopkins Skiles and his heirs,’ and a part (or the other part) to Susanna Skiles. This view, in the opinion of your auditor, is equally erroneous and untenable; for it is clear, ¡from the language of the will, that the testator intended giving his sister Susanna Skiles a life-estate and nothing more, for he not only uses the words ‘her lifetime,’ but adds ‘and at her death it is my desire,’ &c. He does not intend or attempt to dispose of the residue until after her death; so that it would be utterly impossible for her to take with'‘Hopkins Skiles and his heirs’ under the will. It being therefore beyond controversy that Susanna Skiles can take only a life-estate under the will, any other interest she may derive in her brother’s estate must come tbrough the medium of the intestate laws. But if she take under the intestate laws, she takes not under but outside of the will, whilst ‘ Hopkins Skiles and his heirs’ take under the will or not at all, and as it is evident the testator intended to dispose of the whole of his estate by his will, we cannot presume that he intended Hopkins Skilesand his heirs to take a part of the residue under the will, and his sister Susanna the other part under the intestate laws. If Susanna Skiles takes anything more than a life-estate it must be under the intestate laws, whilst if ‘ Hopkins Skiles and his heirs’ take anything at all it must be under the will of William Skiles.
    “But there is another and conclusive answer to both the views just discussed, viz.: That they require the supplying of Avords to carry them into effect, and to that extent'the making of a will for, and not the interpreting the will of the testator, which the laAv will not permit. * * * Your auditor is, therefore, of the opinion
    that as to the residue of his estate, the testator died intestate, and that as the fee-simple could not be in abeyance, but vested immediately upon his death and in his next of kin, Susanna Skiles, that consequently she took instead of a life-estate, the fee-simple, and that the funds no>v for distribution, being a portion of that estate, must be paid over to William J. Burnside, her executor, to be disposed of according to the provisions of her will.”
    The administrator of Hopkins Skiles filed exceptions, which the court overruled and confirmed the report, when this appeal was taken and this action assigned for error.

      P. Frazer Smith and Joseph J. Lewis, for appellant.
    It is to be presumed that a testator intended by his AA’ill to dispose of his Avhole estate, and courts will give this meaning to it if it can be fairly gathered from its language.' Beyond question the testator intended Hopkins Skiles to be one of his legatees. The gift is absolute and the donee of this gift is certain. We contend, also, that the subject of the gift Avas well defined. It was a share of the “ balance ” of the estate which Susanna Avas to enjoy for life. That balance is now made certain by the settlement of the estate and it is this sum, thus ascertained, which is to be parted and one part allotted to Hopkins. Where something is to be divided into two parts, the presumption is that it is to be divided into two equal parts. Where a fund is to be divided courts will make an equal division : Boyle v. Attorney, 4 Vin; Abr. A. C. 486 ; Salisbury v. Benton, 3 K. & J. 529.

      L. Smith Talbot 'and William B. Wadclell, for appellee.
    In ascertaining who the distributees are, and- into how many shares a balance is to be divided, we must be governed exclusively by what is contained in the will. It noAvhere gives Susanna Skiles a part of this balance. It is not claimed, for her by reason of the provisions of the Avill. If she is entitled to the balance at all, it is because the Avill has made no disposition of it. He rights exist by reason of the intestate laws, and the number of parts into which the balance is to be divided, is not indicated by the will. The testator does not give a part to Hopkins Skiles and a part to Susanna Skiles, or use any language from which such an intent can be inferred. The appellant, in effect, supplies these words, because the intestate laws points her out as entitled to the estate.
    It is not even claimed by the appellant, that the testator intended to give Susanna one-half of the balance of his estate. It is rather intimated that the testator did not intend to give her absolutely any of it. How then can it can claimed that he intended to give one-half to Hopkins Skiles, since his portion is dependent upon the intention of the testator, as regards the other half?
    The claim of the appellant rests upon mere conjecture. This is not sufficient. The intention must be manifest, and rest upon something more certain than conjecture : Bradford v. Bradford, 6 "Whart. 244 ; Duffield v. Morris, 8 W. & S. 348 ; Nyee’s Estate, 5 Id. 259. We contend that the will is void for uncertainty and that Susanna has an interest under the intestate law and not under the terms of the will.
   Mr. Justice Sterrett

delivered the opinion of the court, May 5th 1879.

The fund for distribution in this case represents real estate, and the question is, what interest, if any, did Hopkins Skiles take under the residuary clause of his cousin’s will? The testator, after giving sundry pecuniary legacies, and directing his executors to sell sufficient real and personal estate to pay debts and legacies, disposed of the residue of his estate in the following words: “Also, all the balance of my property, personal and real, I give and bequeath to my sister, Susanna Skiles, her lifetime, and at her death it is my desire that a part of it go'to Hopkins Skiles and his heirs.” The learned judge of the Orphans’ Court held that the bequest of a part was void for uncertainty; that as to the residue of his estate, subject to the life-estate given to his sister, the testator died intestate; that immediately upon his decease, the same vested in her as his next of kin under the intestate law, and consequently she took the entire residue absolutely, instead of a life-estate therein. This, of course, resulted in a decree in favor of the executor of Susanna Skiles, from which the administrator of Hopkins Skiles took this appeal.

If the bequest was void for uncertainty, it is conceded the decree is correct. On the part of the appellant, however, the contention is that the bequest was valid, and that his intestate took, under the will, at least one-half of the residuary estate.

The first paragraph of the will contains the usual declaration of intention by the testator to’ dispose of his entire estate; but it is manifest from the residuary clause that he did not fully carry out his original purpose. In the first part of this clause, he gave, in express terms, a life-estate to his sister; and if he had stopped there, it is very clear that the entire remainder, at the termination of the life-estate, would have been, undisposed of and would have passed, as in case of intestacy, to his next of kin. It appears, however, that this was not his will, for in the same breath he expresses a desire that a part of the remainder should then go to his cousin, Hopkins Skiles, but he made no disposition of the other part. It must be presumed that the testator knew what the effect of this partial disposition of the remainder would be, viz., that the undisposed of part or portion would pass,.under the intestate law, to his sister, as his next of kin. We have, then, the clearly-expressed intention of the testator to give the residue of his estate to his sister for life, and, at her death, a part or portion thereof to his cousin, leaving the remaining part undisposed of, so that upon his decease it would vest absolutely in her. If, then, after carving out the life-estate, the testator declared that' a part of the remainder should go to his cousin, and knew that the law would give the undisposed of part to his sister, in what proportions did they take, the one under the will and the other under the intestate law ? Under the circumstances, it is manifest that not more than the two could participate, and hence the remainder was to be parted or divided between them; and in the absence of anything to indicate an unequal division, the presumption is that equality was intended; that the testator used the word part as synonymous with moiety, a sense in which it is sometimes popularly employed in speaking of a division between two. If he had said that one part should go to his cousin and the other to his sister, it would certainly be construed to mean an equal distribution between the two. What difference can it make that he expressly gave a part to Hopkins, and so drafted his will that by his silence as to the other part it would go to his sister ? He is presumed to have known that this would be the effect, and to have had the result in contemplation when he published his will.

Giving effect, then, to the will, so far as it speaks, and appealing to the intestate law as to that wherein the will is silent, we reach the conclusion, that Hopkins took one part- under the will, and the sister the other part under the intestate law. In other words, the remainder, subject to the life-estate, vested in the two, each taking a separate portion or interest, and presumptively an equal share. Equality is equity, and where distribution is to be made among two or more, without anything to indicate the proportions in which they are to take, the presumption is that the shares are to be equal.

Salisbury v. Denton, 3 Kay & J. 529, bears some resemblance to the present case. There the testator bequeathed property to be at the disposal of his wife, to apply a part to such charitable endowment, for the benefit of the poor of Offley as she might prefer, and the remainder to be at her disposal among his relations, in such proportions as she might direct. Here two classes were contemplated, and it was held that the property so bequeathed was divisible in two equal parts, one of such parts for charitable purposes, and the other for the child of the testator absolutely.

It appears to us that the construction of the will above indicated is not unnatural or unreasonable. It gives full force and effect to every word it contains, and at the same time contravenes none of its provisions. If we were to hold that the bequest of a part of the remainder to Hopkins Skiles was void for uncertainty, it would defeat the clearly-expressed intention of the testator to make him one of the objects of his bounty, and at the same time result in giving testator’s sister more than he intended she should have. Both of these results should be avoided, if it can be accomplished without doing violence to the language employed by the testator.

Decree reversed and set aside at the costs of the appellee, to be paid by him out of the fund in his hands as executor of Susanna Skiles; and it is now adjudged and decreed that the net amount for distribution, viz., «12610.90, be equally divided, and one-half thereof paid to Joseph J. Lewis, administrator of Hopkins Skiles, and the other half to William J. Burnside, executor of Susanna Skiles, deceased.

Mr. Justice Trunkey dissented.


author: Mr. Justice Paxson

text:
    Bradley’s Appeal.
    1. Trustees in domestic attachments are not merely ministerial officers, but are vested with extraordinary discretionary powers.
    2. Trustees who have acted in good faith, and under the advice of counsel, are not responsible for an error of judgment or a mistake of law.
    3. A writ of domestic attachment issued against S. & Co., and was placed in the sheriff’s hands at 2.10 p. m. On the same day, at 3 p. ir., the sheriff received a fieri facias issued against S. by a judgment-creditor. A dispute arose between the trustees under the domestic attachment and the execution-creditor, in regard to the legal effect of the seizure of the, property upon their respective writs, and under the adviee of counsel an agreement was entered into whereby certain property was taken by the trustees an>d certain other property was taken by the execution-creditor. Held, that the attachment being prior in point of law, the property was in gremio legis when the levy was made, and it was therefore void, yet that such a compromise was within the discretion of the trustees, and having been made in good faith and under the advice of counsel, they could nofbe surcharged.
    4. McQready v. Guardians of the Poor, 9 S. & R. 94, explained.
    March 25th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Chester county: January Term 187.9, No. 188.

      Appeal of C. H. Bradley and others, trustees under a writ of domestic attachment from the decree of the court confirming the report of the auditor appointed to make distribution of the assets in the hands of said trustees.
    On the 23d of July 1875, Daniel Gilbert issued a domestic attachment against John J. Shallcross & Co., alleging in his affidavit that John J. Shallcross & Co., were indebted to him, and that John J. Shallcross had absconded, &c. This writ was received by the sheriff at 2.10 p. m., and at 3 p. m., of the same day the sheriff received a fi. fa. for a debt of $2000, issued by Henry G. Thomas, on a judgment which had previously been confessed by John J. Shallcross. A store at Coatesville, Chester county, was conducted in the firm name of John J. Shallcross & Co., and a farm of twenty-two acres near that borough was conducted by John J. Shallcross individually. John J. Shallcross had absconded and no one would admit being a partner, hence the issuing of a domestic attachment. Daniel Gilbert, the plaintiff in the domestic attachment, had furnished flour and feed to the store, and held promissory notes signed John J. Shallcross Qo., hence the firm was made defendant. Bradley and two others were appointed trustees under the attachment.
    The title to the farm was in John J. Shallcross and Frederick Schulemeister as tenants in common; but the latter denied any partnership whatever in the store business, and alleged that he was only an employee on the farm, and that he had no interest in the business. The sheriff attached and levied upon all the personal property on the farm, and upon all the .store property under the' writ of domestic attachment, and he also levied upon the same property under the fi. fa.
    The counsel for Thomas claimed his fi. .fa. was entitled to all the property; that it took the store property, because there was no such firm as John J. Shallcross & Co., against which firm the writ of domestic attachment had issued; or if -there were such a firm, then Frederick Schulemeister must be the other member, and he, not having absconded, the domestic attachment was void; and especially did he claim that his fi. fa. held the farm property, because said farm was conducted and controlled exclusively by John J. Shallcross, and not in the name of any company, and that the domestic attachment having been issued'against Shallcross Qo., could not take what was exclusively the individual property of Shallcross.
    The counsel for the trustees took issue with these views and proceedings were commenced to have the questions tested by a sheriff’s interpleader. It appeared also to be .a question of doubt whether Schulemeister was a. partner. It being uncertain, therefore, whether the trustees, the claimants in the interpleader would be able to establish their title to all or any part of the property, under the advice of counsel, a compromise was effected and an agreement entered into by the counsel of the trustees and the counsel of the execution-creditor, whereby the interpleader proceedings terminated, and it was agreed the trustees should take the store property, and the execution-creditor the property on the farm, and the liens were mutually released. The property on the farm was subsequently sold by the sheriff for $1516.58. When the trustees filed their account they did not charge themselves with this fund, whereupon certain creditors filed exceptions thereto and it was referred to an auditor, P. E. Smith, Esq. The auditor, after detailing the facts, as set forth in substance above, inter alia, reported as follows :
    “ The apparent relations of Shallcross and Schulemeister were such as to make it uncertain to the public whether they were part ners or not; many of the circumstances might reasonably lead to the belief that they were partners. * * * Eor the sale of the goods, or any of them, under the Thomas execution, by the sheriff, he would be liable to the trustees, unless he was relieved by their agreement; that even that would relieve him is by no means clear. They themselves were mere ministerial officers like himself, with specific duties and powers assigned them : McOready v. Guardians, 9 S. & R. 99, of which he was bound to take notice. If they attempted to do an act which was ultra vires, as to which they had no discretion, it is by no means clear that they, or other trustees appointed in their place, would be concluded by their unlawful consent for the sale of the goods to the injury of the real parties — the creditors who had no power to intervene.
    “ Now, were the trustees mere ministerial officers without discretion ? McOready v. Guardians, above cited, asserts they were ministerial officers; that they ‘are not judicial officers, but are ministerial officers of justice.’ * * *
    “ How do these trustees claim to relieve themselves for not accounting for the goods sold by the sheriff ? They say they acted in good faith, under the advice of counsel, and under circumstances which would cause a prudent man to pause — circumstances which justified them in entertaining the fear that if they pursued the controversy, instead of recovering the goods which the sheriff sold, they would lose those which the execution-creditor was willing, by way of compromise, that they should retain.
    “ The evidence on this part of the case was, that on the 1st of April, preceding the issue of the attachment, Shallcross, who before that time had been conducting business in his own name, put up a sign ‘ J. J. Shallcross & Co.,’ at his place of business ; that a farm was purchased by Shallcross & Schulemeister, as tenants in common ; that truck came from the farm to the store, and was there sold; that the store books were from the 1st of April opened in the name of ‘ J. J. Shallcross & Co.;’ that he said about that time that he had taken Schulemeister into partnership — with other circumstances tending to show that they were partners. Under the advice of counsel, the writ was issued against J. J. Shallcross & Co., on the ground that Shallcross had absconded. After the execution was issued against Shallcross, and the controversy arose about the ownership of the goods, it was still claimed that the goods were bound by the domestic attachment, as the goods of Shallcross Co.

      “ To test the question, the interpleader was advised by counsel, he being of opinion that if there were no partnership, the goods would not be held by the attachment, but would be liable to the execution as the goods of Shallcross.. The counsel testified that the trustees refused to enter into an interpleader bond, and sent a declination of the trust, and he (counsel) had become satisfied that there was no partnership. He further became satisfied that even if Schulemeister was a partner the attachment would not lie ; that therefore they would be defeated, and that Thomas’s execution would take everything. He therefore advised a compromise, and the trustees obtained the goods in the store, which otherwise, in his opinion, they would not have got. There can be no doubt that the trustees acted in the most perfect good faith, and did what they believed was not only for the best interests of the estate, but also what was in accordance with law. Under the assumption that they were trustees with discretionary powers, they acted also with proper diligence. For although they might have applied to the court, which had jurisdiction of both processes to set aside the execution which as now appears would have been done (Robinson v. Atlantic and G. W. Railway, 16 P. F. Smith 160), yet the matter was undecided, and their counsel was of opinion that by proceeding they would lose all, and that they would be justified in making a compromise by securing half.

      “ But as has been shown, they were ministerial officers without any discretion to settle controversies; they-were bound to know the law, that the goods were in their custody, and, therefore, if the sheriff withheld them on their demand, they were bound to apply to the court to compel him to deliver them. At all events, being such officers, they could not act of themselves even in a doubtful matter; they were bound to have their rights ascertained by a judicial determination.
    “ They had no more authority to compromise a dispute as to the right of property, because they thought it would be for the benefit of the creditors, than would the sheriff have had whilst the goods were in his custody if he had been of the same opinion ; or as to goods taken in execution if he thought it for the benefit of the execution. The auditor is therefore of the opinion that the trustees are chargeable with the portion of the goods seized by the sheriff which they gave up to him to be sold under Thomas’s execution. The sales of the sheriff amounted to $1516.58.
    “ The auditor has been urged to charge the cost of the audit upon the trustees. But inasmuch as they have acted with the most per-feet good faith, under the advice of counsel, in circumstances, entirely new, and as to which the law was not clear; and as an experienced public officer had involved them in their difficulties, and, as without any possibility of their preventing it, the proceedings,, were delayed three years, and all that they did, which was supposed to lead to wrong, appeared of record, and by public judicial sales, and the creditors with all their opportunities of knowledge, and probably with actual knowledge, took no steps to advise with the trustees or to caution them, the auditor -thinks he should not recommend the court to impose the costs on them in a case where there is no statutory injunction regulating the imposition of costs.”
    The trustees filed exceptions, which the court, Butler, P. J., without filing an opinion, overruled, when this appeal was taken.

      William M. Bayes, William B. Waddell, William T3. Barber and William T. Barber, for appellants.
    The auditor likens the trustees under a domestic attachment to a sheriff, and asserts they are without discretionary powers; that they have not the power to settle disputed claims, nor to compromise suits, except by the direct sanction of the court. We submit that an inspection of the Domestic Attachment Act will not. justify such a conclusion, and that, on the contrary, such trustees are vested with extraordinary discretionary power. Under the act, the court is empowered to appoint three honest and discreet men, who are required to take an oath to execute the trust according to the best of their skill and understanding, and a majority are authorized to exercise all the ■powers and perform all the duties required. If they are but the agents of the court, then it was unnecessary to confer such powers upon them, or why appoint so many as three ?■ We submit that the act rather constitutes them a tribunal of their own, and clothes them with power to enforce their decrees.
    There is no instance where trustees have acted in good faith, and under the advice of counsel, in which they have been held responsible: King v. Morrison, 1 P. & W. 196; Neff’s Appeal, 7 P. F. Smith 91; During, King k Miller’s Appeal, 1 Harris 234; Chambersburg Saving Fund Association’s Appeal, 26 P. F. Smith 203.

      B. Jones Monaghan and Charles B. Pennypacher, for appellees.
    The levy under the execution was void, as the same property, already in the custody of the law under the domestic attachment, could not again be taken by the execution. It was only necessary for the trustees to have asked the court to set aside the levy of the execution, when all the supposed complications of this case would have been solved, and that levy have been stricken off.
    The trustees, however, actively made claim to the property so levied under a void levy. But having done so, and an interpleader issue having been framed, they did not, by mere sufferance, allow Thomas to take by his execution farm stock to the value of $1516.58, but proceeded actively in the matter by refusing to give an interpleader bond, and did not, by petition, suggestion or in other manner, seek the instruction of the court that had appointed them as to their duties or responsibilities in the premises, but chose, rather than give a bond or seek relief from so doing from the court, to abandon property of which they had the custody.
    The authority of trustees in domestic attachment is wholly statutory. Anything done by them outside of their express statutory powers is ultra vires and null and void. Thus, trustees in partition proceedings or the like cannot add to' or modify the terms of sale prescribed by the court, nor can corporations act outside of the powers conferred by their charter.
    These trustees cannot, under the Act’of 1836, even sell perishable property, except after an order of the court. If they could not sell, surely they could not give away.
   Mr. Justice Paxson

delivered the opinion of the court, May 7th 1879.

This was an appeal by trustees under a writ of domestic attachment from the decree of the court below, dismissing the exceptions and confirming the report of the auditor appointed to make distribution of the assets in the hands of said trustees. The auditor and the court below surcharged the appellants with the sum of $1516.58, being the entire proceeds of a sheriff’s, sale of certain personal property of the defendant in said attachment, which had been levied upon and sold under a writ of fieri facias. It appeared that the writ of domestic attachment was issued against John J. Shalleross & Co., upon an affidavit charging' that John J. Shalleross had absconded, &c. This writ was received by the sheriff at 2.10 p. m., on the 23d of July 1875, and at 3 P. m., of the same day, the sheriff received the writ of fieri facias above mentioned, which was issued by Henry Gr. Thomas, upon a judgment which had been previously confessed by Shalleross. The sheriff attached and levied under both writs the stock of goods in a store at Coatesville, conducted under the firm name of John J. Shalleross & Co., and also all the personal property on a farm near Coatesville, conducted in the name of John J. Shalleross individually, but the title to which was alleged to be in the said Shalleross and one Frederick Schulemeister. A dispute arose between the trustees and the execution-creditor in regard to the legal effect of the seizure of the said property upon rheir respective writs, and, under the advice of counsel, a compromise Avas effected, and an agreement entered into betAveen the counsel of the trustees and the counsel of the execution-creditor, whereby it was agreed that the trustees should take the store property, and the execution-creditor should take the farm and the personal property belonging thereto. The auditor distinctly finds the fact that in making this arrangement the trustees acted under the advice of counsel, “ in the most perfect good faith, and did what they believed was not only for the best interests of the estate, but also what was in accordance with law.” Yet he has surcharged them with the entire proceeds of the sheriff’s sale, not even allowing for the necessary expenses thereof, which ruling, upon exceptions filed by the trustees, was confirmed by the court below.

No opinion was filed by the learned judge, and we are therefore obliged to look to the report of the auditor alone for the reasons upon which this ruling is based. Briefly stated they are that trustees, under a domestic attachment,' are purely ministerial officers; that they have no discretionary powers ; no right to make compromises and settle controversies. The learned auditor says : “ They had no more authority to compromise a dispute as to the right of property, because they thought it would be for the benefit of creditors, than would the sheriff have had whilst the goods were in his custody, if he had been of the same opinion; or as to goods taken in execution, if he thought it for the benefit of the execution. The auditor is therefore of the opinion that the trustees are chargeable with the portion of the goods seized by the sheriff which they gave up to him to be sold under Thomas’s execution. The sales of the sheriff amounted to $1516.58.”

We think the auditor was clearly right in holding that the trustees made a mistake in relinquishing their claim to the property sold under the fieri facias. It is true there was no duty upon them to give a bond under the sheriff’s interpleader. Nor do I see how the court could have compelled them to do so. But they might and ought to have applied to the court for relief. The attachment being prior in point of time, the property was in gremio legis, and in a proper case the court would make such order as might be necessary for the protection of all the interests involved: Robinson v. Atlantic and Great Western Railway Co., 16 P. F. Smith 160. But the conclusion of the learned auditor that the trustees are necessarily liable to be surcharged with the proceeds of the sheriff’s sale is not so satisfactory. His argument that trustees under a domestic attachment are ministerial officers without discretion, like a sheriff, rests in a great measure upon the case of McCready v. The Guardians of the Poor, 9 S. & R. 94. That case, however, is not authority for such a doctrine. It is true it was said by Justice Duncan in delivering the opinion of the court, referring to trustees under a domestic attachment: These men are not judicial officers, but are ministeral officers of justice.” The point decided in that case was, that in an action of trespass, or trover, by two or three trustees under such attachment, the court after verdict will presume that all three were appointed and qualified, and that one is since dead. As this case ■wholly fails to sustain the position assumed, and no other has been cited which does, we must look to the Domestic Attachment Act of 13th June 1836, Pamph. L. 616, Purdon 518, as our guide. It requires but a cursory examination of said act to see that trustees appointed under it are clothed with extraordinary powers. To enumerate them all would be tedious and unprofitable. It is sufficient for present purposes to say, that from and after their appointment such trustees shall be deemed to be vested with all the estate of the debtor at the time of issuing the attachment, and are' required to take into their possession all of said estate, and all books, papers and vouchers relating to the same; they may sue for and recover in their own names, all the said estate, and all debts and things in action belonging to the debtor; they may summon before them and examine on oath or affirmation, all persons residing within the county supposed to be indebted to the defendant, and such other persons residing as aforesaid, as they shall think fit, touching the real or personal estate of the defendant; and in case any person so summoned shall refuse to attend, or to be sworn, or to make answer, the trustees may commit such person to the prison of the county, there to be confined until he shall submit to be examined; they may issue their warrants under their hands and seals, to break open in the day time, houses, chambers, shops, stores or warehouses of the defendant, or any doors therein, and any truuks or chests of the defendant, in which his goods and effects, books of account or papers relating to his estate, shall be, or shall be reputed to be, and to seize the same for the benefit of creditors; they may redeem property that has been pawned or pledged; they may sell the. personal estate of the debtor without any application to the court, at any time after the ’ term next succeeding that to which the writ is returnable, and the real estate at any time after the third term, and to grant, assign, or sell the debts due or to become due the defendant. An argument is not needed to show that trustees clothed Ayith such powers as I have enumerated are something more than ministerial officers. There is no possible analogy betAveen their duties and those of a sheriff. The oath Avhich the trustees take implies discretion. They are “ to execute the trust reposed in them, according to the best of their skill and understanding,” &c. No other class of trustees have such delicate, hazardous, and responsible duties to perform. To say that a trustee who may send a man to prison for his refusal to ansAYer, is a mere ministerial officer, is a proposition, the mere statement of A\diich carries Avith it its own swift refutation.

There is a line of authorities AYhich hold that trustees who have acted in good faith, and under the advice of counsel, are not responsible for a mere error of judgment, or a mistake of law. It is sufficient to refer to King v. Morrison, 1 P. & W. 188 ; During, King and Miller’s Appeals, 1 Harris 224; Neff’s Appeal, 7 P. F. Smith 91, and the Savings Fund’s Appeal, 26 Id. 203. Trustees must of necessity-seek the advice of counsel in the performance of their duties. Not to do so would, in many instances, he gross negligence. It would be a harsh rule to require trustees to seek legal advice, and then hold them responsible for an error of law committed by their counsel. In the language of Chief Justice Gibson (1 Harris 235), it “ would throw the execution of trusts into the hands of knaves or fools.”

We are of opinion that the case in hand comes within the principle laid down in the authorities referred to, and that it was error to surcharge the appellants with the proceeds of the sheriff’s sale. It is easy now to see how the mistake in question might have been avoided. It might not have been so easy at the time it occurred. It certainly was not so to the trustees. Acting in good faith and in the strict line of their duty they sought the advice of respectable and experienced counsel. It would be harsh as well as unjust to hold them responsible for his error of judgment, and the law does not require us to do so.

The decree is reversed, at the costs of the appellees, and distribution ordered in accordance with the principles of this opinion.