author: Kura, President. —

text:
    Farley v. Stokes and Tyrell.
    while it is the law that a lease hy parol for more than three years is within the statute of frauds — yet there are exceptions which.have been recognised hy Courts of Equity, when the case is apparently within the letter of the statute.
    Part performance of the contract is shown hy delivery of possession to the ven-dee, or lessee, and valuable improvements made in consequence thereof. In all cases in which part performance is set up in order to avoid the operation of the statute, the act relied upon must he unequivocally referable to the agreement. The ground on which Courts of Equity exclude the operation of the statute, is fraud. For a party who has permitted another to perform acts, on the faith of a parol agreement, shall not insist that the agreement is had, and that he is entitled to treat those acts as if no agreement ever existed; this would be a fraud.

    In cases where the parol proof of the factum of a contract for the sale or leasing of lands is clear; where possession of the land has been shown to have been delivered to the vendee, or lessee, in pursuance of a final agreement set up; and where valuable improvements have been made by such vendee, or lessee, on the faith of such parol contract, and posterior to the delivery of such possession ; the course of Courts of Equity has been uniform, to enforce them.
    Whatever is sufficient to put the purchaser upon inquiry, which would necessarily have led Mm to a discovery, or knowledge of the adverse claim, or interest to or in the land, is sufficient to affect Mm with notice of it.
    Courts of Equity iu this state have jurisdiction to compel the specific performance of a contract for the sale or leasing of land, even when a party may have a remedy at law. The rule which guides Courts of Equity is this, whether a party has an adequate and complete remedy in a Court of Law. Where complete justice cannot be done, Courts of Equity will entertain the case.

      Jan. 26.
    This was a hill filed hy Farley against Stokes and Tyrell, setting forth that Stokes was the owner of a house situate in Spring Garden, and that the plaintiff was a druggist, and being desirous to obtain a lease of said house for a term of years, as a drug shop, by his agent negotiated a lease for the same, when it was completed and put in tenantable order; and that, on the 20th of October, 1847, the said Stokes agreed with the agent of the plaintiff to lease the said premises to the plaintiff for the term of ten years, at a certain rent, to be increased after the two first years, setting forth the particulars of the contract; and the only reason why the lease was not executed was the unfinished state of the building, and uncertainty as to the time of its completion; but, relying upon the promised lease, the plaintiff, on the 23d day of December, 1847, entered upon said premises, although still in an unfinished state, and proceeded to fit it up for a drug store, and expended the sum of $800 and more about the same, relying upon the fulfilment of said contract by said Stokes. He placed the necessary fixtures upon the premises to enable him to carry on said business; and during the time he was engaged in fitting up the premises, he had frequent conversations with said Stokes, in which he frequently spoke of the said agreement and lease; and that the plaintiff paid the first quarter’s rent, and subsequently tendered to said Stokes a lease for execution, in pursuance' of the terms of the contract, when, for the first time, he was apprised of the intentions of said Stokes refusing to execute a lease, although he admitted that he had promised to give him a lease for ten years.
    It was then averred in the bill, that, on or about the 15th of December, 1848, Charles Tyrell, the other defendant, appeared at the store of the plaintiff with a notice from said Stokes, directing the complainant to pay the rent to said Tyrell, and that subsequently, on the 10th of January, 1849, he paid the rent to Tyrell, for which he obtained a receipt. The bill also stated, that it was in violatioii of said contract made by Stokes, of which Tyrell was fully aware before his alleged or pretended purchase from said Stokes. Also that said Stokes has combined with said Tyrell to turn the complainant out of said premises; in pursuance of said combination said Stokes gave notice to him to remove from said premises, and that subsequently to said notice, and in pursuance of said combination, the said Stokes pretended to sell the premises to said Tyrell, who did, on the 16th day of January, apply to two justices under the Act of Assembly to remove him from the possession of the same. That on the said trial, Stokes was offered as a witness; that the jury did not agree, and were discharged; and subsequently the plaintiff has requested said Tyrell to execute a lease in conformity with said agreement, which he refused, and now threatens to call another jury, until one can be found that will agree.
    The bill then prayed for a disclosure under oath by said defendants, respecting their knowledge of said contract, and of all the matters and things charged in said bill. Interrogatories were also inserted in said bill upon all the facts charged. The hill also prayed that the contract might be specifically performed, and the defendants be decreed to execute a lease of said premises according to the terms of said agreement; the plaintiff offering to perform his part of the same.

      The defendants filed separate answers to the bill. Stokes, in his answer, admitted he had rented the premises to Farley for a year; but denied that he had ever agreed to lease it to him for ten years. He admitted that the plaintiff had gone into possession by his consent, and that he had placed fixtures and other improvements on the premises for his particular business and convenience.
    Tyrell filed his answer, and stated that he had purchased the premises, and received a deed for the same from Stokes ; that, at the time of the purchase, Stokes told him that Farley was in the possession under a lease from him for one year; that he claimed that Stokes had agreed to give him a lease for ten years; hut Stokes denied that he had made any such agreement with Farley, and it was under these circumstances he purchased the premises, and claimed to be the owner.
    • The cause was heard on bill, answers, and proofs. Numerous witnesses testified positively as to the acknowledgment of Stokes that he had leased the property to Farley for ten years. One of them, who acted as his agent in the negotiation, wrote the terms of the bargain to the plaintiff, on the day that Stokes agreed to it. The improvements put upon the premises by Farley were proved to have cost $391, which would be an almost entire loss, if he was compelled to quit. One witness proved that before the execution of the deed to Tyrell, Farley told Tyrell that Stokes had agreed to lease it to him for ten years; that he would insist upon the execution of the contract, nor would he surrender the possession.
    The cause was argued by Mr. Todd for the plaintiff, and Mr. Robb for the defendant, Tyrell.
    Mr. Todd argued from the facts that Stokes admitted in his answer that he had no objections to giving a lease for ten years, substantially upon the terms set forth in the bill, nor did he ever countermand the offer; and admits the conversation with Pale-thorpe, the agent of the plaintiff. Also, he admitted that Farley put on the improvements; nor is the amount disputed. He also admits the payment of two quarters’ rent, and the tender of the lease to him for signing. He also contended that Palethorpe proved the bargain positively, and produced the memorandum in writing made by him the same day and sent to the plaintiff. And that Stokes directed him to let Farley know that he could have the property for ten years; that he did, and Farley went to see Stokes, and that Stokes subsequently told him it was all fixed, and that all the dispute that ever arose between the parties was in relation to the rent for the first five years.
    It was then contended that one witness proved the entire bargain, accompanied by a note in writing made at the time; and that six other witnesses prove that at various times Stokes admitted to them he had leased it to Farley for ten years. He cited 1 Greenl. Evid. 545, § 437; 12 S. & R. 84. He also contended that the proof was clear as to the improvements, which would not have been made but upon the basis of a long lease; and if the plaintiff could not have the benefit of.it, the loss would be great. That all this was evidence of part performance of the contract as made by the parties
    It was also contended that the statute of frauds did not prevent the plaintiff from a recovery, for this case was an exception, by the proof of part performance, and that it would bv a fraud on the plaintiff if it was not enforced. To sustain thie, he cited Ewing v. Tees, 1 Binn. 455;. Jones v. Morphett, 1 Swanston, 172; Roberts’ Digest, 81; 2 Strange, 771, 783 ; 1 Mad. cfc. 381; 1 Smith, 394, note; 1 Dallas, 424; Pugh v. Good, 3 W. & S. 61, 62; 2 Rawle, 53; 14 S. & R. 261; 1 W. & S. 389. The Court has jurisdiction ; the statute gives it: Act 16th June, 1836, Dunlop’s Dig. 743, 814, 951.
    It was also contended Tyrell had notice. X. The plaintiff was in possession at the time : that was notice. It is admitted in the answer, that Stokes told him Farley claimed a lease for ten years, and was a troublesome tenant; this should have put him on inquiry; and then we have the positive proof, by a witness, that Farley told Tyrell, before the execution of the deed, that he claimed a lease for ten years, and that he would not surrender the possession.
    For the defendant, it was contended by Mr. Rohh, that the Court had no jurisdiction of the cause, and cited 1 Bald. 394; Baker v. Biddle. That the plaintiff had a remedy at law. Gilder v. Merwin, 6 Wh. 540 ; 7 W. & S. 107; 2 Penna. Rep. 299. 2. That this contract was no fraud. Cited 2 Story, 29, § 769. Same, section 1528. 3. That the contract was within the statute of frauds and perjuries, which was specially pleaded in the answer, and that the whole bill was denied in the answer; and if established by proof, it was but a parol contract, which could not be enforced. To sustain this, he cited Story Eq. Juris, vol. 2, § 758; 2 Story, §764; 19 Yesey, Jr. 476; 3 Watts, 138; 1 Watts, 383.
    Also that improvements by a lessee for his own convenience give no equity; 6 Watts, 510; 2 Whart. 392; 9 Barr, 59, 164. It must be a clear case to take the case out of the statute of frauds: Story, 766; 9 Watts, 111; 7 Barr, 93; 1 Madd. Ch. 416 ; 5 S. & R>. 443; 4 Rawle, 38; 3 Barr, 134; 2 Sim. & Stewart, 29.
    It was further contended that the application was against a bond fide purchaser, and this must be taken for granted because sworn to by the defendant: 2 Sumner, 295; 5 Binn. 129; 8 S. & R. 484; 2 Ashe, 313; 14 Peters, 77.
    It was contended that, under the facts, the contract was not sufficiently proved; that the leasing was for but a year, and that this was but an attempt to change the original contract of the parties. That all the improvements could be referred to a leasing for but a year, and that the plaintiff knew the tenure by which he held the property when he made them. That inasmuch as there was no written lease, it would be against the plain terms of the statute to attempt to enforce this pretended contract.
    That as to Tyrell, he was a bond fide purchaser, and there was not sufficient proof by the witnesses, nor what was admitted by his answer, to put him on inquiry; that, at all events, it was not notice, such notice as the law required to affect one who had purchased the property and paid his money for the same, nor should a Court of Equity give countenance to such a claim.
   The opinion of the Court was delivered by

Kura, President. —

Prom the evidence we cannot doubt, that as a question of mere fact, the complainant has sustained the case set out in his bill. The denial by the defendant Stokes in his answer of the factum of the contract, is sufficiently met by the positive testimony of John H. Palethorpe, sustained by a series of collateral facts and circumstances, equivalent in their effect to a second wit ness. These combined proofs show very clearly, that Stokes being the owner of an unfinished house in this county, agreed to lease it when completed to the plaintiff for ten years, at a, progressively increasing rent. That in pursuance of this contract, Farley entered into possession of the demised premises, and made valuable, though perhaps not permanent improvements thereon, in order to render the house suitable for his business, that of an apothecary and druggist. No written lease was ever executed by Stokes to Farley. While the latter was in the possession and enjoyment of the property, under this parol lease, Stokes conveyed it in fee to Charles Tyrell, the other defendant. The bill charges that Tyrell made this purchase with actual knowledge of the state of the complainant’s rights. Tyrell in bis answer denies such Knowledge, but admits that at the time of the execution of the deed, he inquired of Stokes in regard to the tenant of the property, and of the terms upon which he occupied it; and was informed that he held the same under a written agreement for one year, which would expire on the 10th of January, 1849. That Stokes had found Farley a very troublesome tenant, and that he had at one time set up a claim for a verbal lease for ten years, hut that such pretence was without the least foundation. Wetherill Patterson, a witness produced by the complainant, proves, that about the middle of December, 1848, Tyrell called upon the complainant at his store with a notification from Stokes, informing him that he, Stokes, had sold the property to Ty-rell, and the rent was in future payable to the latter. In this conversation Patterson proves that Farley fully stated the nature and extent of his claim on the property, and that Tyrell, during the conversation, said that the deeds were either to be drawn or executed that day. This testimony, taken in connexion with Tyrell’s answer, establishes, either that he had positive notice of Farley’s claim before the consummation of the contract of sale, or at least that he had information and notice enough to put him on the necessary inquiries to ascertain the truth, before closing the bargain.

The necessities of the case, therefore, have compelled the defendants to place the stress of their defence on the statute of frauds. That the case is within the letter of the statute, is quite clear. It is founded on a supposed lease for more than three years by parol, and “not put in writing.”- Do the facts bring it within any of the exceptions which Courts of Equity have recognised as existing in cases apparently within the letter of that statute ?

Among the most familiar of these exceptions is part performance of a contract of sale or lease, shown by delivery of possession to the vendee or lessee, and valuable improvements made in consequence thereof. In all cases in which part performance is set up, in order to avoid the operation of the statute, the act relied upon must be unequivocally referable to the agreement. The ground on which Courts of Equity have allowed such acts to exclude the operation of the statute, is fraud. A party who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed. What shall constitute a part performance sufficient to take a given case out of the statute, has ever been a vexed question in the Court since chancery has attempted to qualify the operation of the letter of the statute by the special equities of particular cases. The difficulties that have arisen in the practical application of this delicate jurisdiction, have led jurists to regret the extent of the liberality of Courts of Equity in this particular; and the tendency of modern decisions is certainly not to advance beyond the earlier doctrines, but rather to bring these within more precise and defined limits. But in cases in which the parol proof of the factum of a contract for the sale or leasing of lands is clear; where possession* of the land has been shown to have been delivered to the vendee or lessee in pursuance of the parol agreement set up ; and where valuable improvements have been made by such vendee or lessee, on the faith of such parol contract, and posterior to the delivery of such possession, the course of equity in enforcing such contracts has been steady and uniform.

The books are full of reports of such cases, and it is treated by elementary writers as doctrine. In cases between vendor and purchaser, less difficulty has arisen in the application of this doctrine, than in those between landlord and tenant. In the former, the act of delivering possession, in pursuance of a parol contract, is an unequivocal one. In the latter, inasmuch as possession is incident to every lease, the delivery of possession to the lessee possesses no such inherent force. In cases between landlord and tenant, when the tenant is in possession at the time of the agreement, and only continues in such possession, in most cases this possession amounts to nothing. “ Possession had before the agreement, and continued after it,” says Chief Justice Tilghman, “ is of too doubtful a nature to he considered as proof of part performances.” Jones v. Peterman, 5 S. & R. 546. But that a parol lease for more than three years may be taken out of the act by the delivery of possession, if the agreement is clearly proved, seems admitted by the Chief Justice in this case, particularly if attended with improvements by the lessee: lb. In Morphett v. Jones, 1 Swanston, 173, it was held by Sir John Leach, Master of the Rolls, that specific performance of a parol agreement might be decreed on the testimony of one witness, confirmed by circumstances against the denial in the answer, after part performance by delivery of possession. It was with great propriety that the plaintiff relied on this authority, because it covers his whole case, as well in regard to the quantum of proof to establish the parol agreement, as the effect of the agreement when so established. It is even stronger than the present, because it seems ruled on the grounds of proof of the agreement, and possession delivered in pursuance of it; without any pretence of improvements made on the faith thereof.

In the case of Pugh v. Good, 3 W. & S. 36, the whole doctrine of the English chancery, concerning part performance of contracts for land, has been reviewed in a very able and learned opinion by the present Chief Justice. He concludes that it has been adopted as the law of Pennsylvania, under our Act of Assembly against frauds and perjuries, notwithstanding the omission in the latter of the 4th section of the English Act. And he asserts the doctrine on which Sir Thomas Plumer seems to have ruled Morphett v. Jones: viz. that delivery of possession alone is part performance. Of course, whether delivery of possession be an unequivocal act of part performance, must depend on the circumstances of the particular transaction. This may, nay, certainly does, become a more complicate question in controversies of this sort between landlords and tenants, than in those between vendors and vendees. The danger of the fraudulent assertion of a long parol lease, by a tenant, in order to retain the possession of a convenient leasehold, is certainly a real one. But the difficulties which involve the ascertainment of a fact, are no evidence of its non-existence. And the dangers of fraudulent practices by a tenant, seeking to sustain the existence of such an agreement, should, of course, be considered in weighing the proof on which he pretends to establish it. If, in such a ease, the Court should doubt, it can withhold its aid; because the specific execution of a contract is not a matter of absolute right in the party, but of sound discretion in the Court. Hence, it requires much less strength of case on the part of the defendant to resist a bill to enforce a contract, than it does on the part of the plaintiff to maintain a bill to enforce a specific performance. Story Eq. Juris. § 769.

The plaintiff’s case, however, does not exclusively depend on the direct and collateral proofs of the agreement. These are strongly fortified by all the probabilities of the transaction, which may be fairly taken into account always in estimating the force of evidence. He was about establishing a business in a new neighbourhood, which necessarily demanded time and present expense for its accomplishment. Now, that for this purpose he would lease a house for one year, and expend between three and four hundred dollars in putting it in order, seems most unreasonable; while that he should seek to obtain a lease for a time sufficient to justify his expectations, and authorize this expense, is precisely what any prudent man would have done under the like circumstances. These expenditures, made on the faith of a promised lease, form an important item in the equity of his case. In Jones v. Peterman, it is said that if a parol lease, accompanied by the possession delivered in pursuance of it, is attended with improvements by the lessee, it certainly will he established. In such cases, the Court proceed in the enforcement of the contract, on the ground of the manifest fraud it would he on the party making the improvements, to permit the vendor to escape from a due and strict fulfilment of the agreement: Story, § 761. To avoid the effect of these expenditures made by the complainant, the defendants argue that improvements made by a tenant for his own accommodation and convenience, give himno equity against his landlord; and this is quite true as an abstract proposition. But when such improvements have been made on the faith of an agreement for a lease, on which the tenant has entered into possession, they have a very different .effect. They then furnish the most cogent reasons for a Court of Equity to compel specific performance of the agreement.

It has been urged that the plaintiff has been guilty of laches, in not seeking earlier the aid of this Court to compel the execution of the agreement: and cases have been cited to show that equity always requires a party seeking to enforce a specific performance to he ready, prompt, and eager. None of these were, however, cases in which the party asking aid has been in the possession and enjoyment of the subject-matter of the contract. In such a case he may well rest on the security of his imperfect contract, and it is time enough for him to seek the aid of the Court when the other party shows a disposition to avoid its effects. This was the case here. For the complainant filed this bill immediately after the defendants commenced proceedings at law to eject him from his possession. In this state of its circumstances, this case is identical with that of Morphett v. Jones; in neither the learned counsel who argued the case nor the Court notice the idea of laches. An omission not likely to have occurred, if the objection had any force.

It is said that this is an application against a bond fide purchaser, and as such ought not to be entertained. But he only is a bond fide purchaser who is a purchaser without notice of the claimant’s equity. While a purchaser of the legal title cannot be affected by any latent equity of which he has no notice, it is equally clear, that such notice actually and fully proved against him takes away his bona fides, and puts him in mala fide. And it is well settled, that whatever is sufficient to • put the purchaser upon an inquiry which would necessarily have led him to a discovery or knowledge of the adverse claim or interest, to or in the land, is sufficient to affect him with notice of it: Epley v. Witherow, 7 Watts, 167. That the purchaser had in this case actual notice of the complainant’s rights before his contract was completed, is in direct proof; and the admissions in his answer show that he was, from the commencement of the negotiation with Stokes, in possession of such information in relation to Farley’s claim as was amply sufficient to put him on inquiry thereto. In the equity sense of the term, therefore, he cannot be regarded as a bond fide purchaser.

The last question raised by the defendants is that which denies the jurisdiction of the Court, upon the ground that the plaintiff can by a recovery of damages have an adequate remedy at law. The admission of this doctrine would divest us practically of all jurisdiction to compel specific performance of real contracts, certainly one of the most useful heads of our jurisdiction. The question has, however, been considered and determined in many past decisions of this Court. In Dalzell v. Crawford, ante, p. 37, which arose on a bill filed by vendor against vendee, it came up as a direct question for decision, and the jurisdiction was sustained. The reasons for this conclusion are there stated, and need not here be repeated. In the case of Rich v. King (not reported), the question again came up on a hill filed by vendor against vendee, and received the like determination. The same question in principle was agitated in Bank of Kentucky v. The Schuylkill Bank, ante, p. 180; and the grounds on which equity will interfere, although the plaintiff might have proceeded at law, is there very fully discussed. As that case has been affirmed by the Supreme Court, it must he hereafter regarded as authority for the principles settled by it. The principle ruled in Dalzell v. Crawford was that the clause in the Act of the 16th of June, 1836, which authorizes this Court to “ afford specific relief when a recovery in damages would be an inadequate remedy,” is but declaratory of the settled principles on which Courts of Equity have long acted in the administration of specific relief. If this principle is sound, and of this we entertain no doubt, then the equity jurisdiction of this Court and the Supreme Court, under the head of specific performance of real contracts, rests on the same basis as that of other Courts of general equity jurisdiction. That such Courts possess jurisdiction to compel the specific execution of a contract to sell or lease lands, is indisputable. Why they exercise it, and why they deem the remedy at law inadequate in such cases, are things so familiar that we should not be justified in further discussing them after our past decisions.

The complainant must therefore have our decree directing the defendant Stokes to execute to him a lease with the usual covenants, as of January 1848, for ten years; which lease must be confirmed by the defendant Tyrell by an appropriate legal instrument, to be prepared by the plaintiff; and Tyrell must be perpetually enjoined against proceeding against Farley at law, to recover the possession of the demised premises, on the ground that his lease had expired, and that he is a tenant holding over against his landlord. The question of costs is reserved for further order, although at present we incline to decree them against Stokes alone, as Tyrell seems to have been led to the course he has pursued in the case from confidence in the declarations of Stokes, that no such agreement as that alleged by Farley ever had existence. ' Before, however, acting on such an impression, we will hear Stokes’s counsel on this question, if he desires it. The case of Morphett v. Jones is a precedent for a decree for costs against the landlord alone, where the purchaser of the land was a party to the bill filed by the tenant against the landlord. This question, however, we regard as open, as reasons may be given that such a discrimination as to costs would not be proper.


source: Caselaw Access Project

author: King, President.

license: Public Domain

text:
    Meredith’s Estate.
    Where a testator by his -will authorizes his executors to sell and convey real estate, and the' exeoutor dies or renounces the trust, and an administrator de bonis non cum testamento annexo is appointed, he has the same authority as that of the executors, and has the same power to execute the will, and can sell and convey the real estate. And where the will expressly requires that both executors shall agree to the sale, the same power is given to the administrator wicn the will annexed ; he possesses all the authority that both could derive from the will.

      April 27.
    This case came before the Court on a petition presented by Joseph D. Meredith, setting forth that his father, William Meredith, Esq., deceased, by his last will and testament, duly proved in the Register’s office in Philadelphia, among other things, did direct as follows, to wit: “ I hereby authorize and empower my executors hereinafter named, or any two of them who may be acting as such, and the survivors or survivor of them, to grant, bargain, sell, and convey all or any and every part and parcel of my estate aforesaid, whether held by me in trust or not, to any person or persons, for any price or prices which to them shall seem meet, by public or private sale, without any obligation on the part of the purchaser or purchasers, to see to, or be in any way responsible for, the application of the purchase-money thereof.”
    The petition further stated that all the executors named in the will had renounced, and that administration with the will annexed had been granted to Eli K. Price, Esq. That the testator left real estate in Philadelphia and elsewhere; that the petitioner was one of the devisees under the will of the testator, and was desirous that said real estate should be sold; and that he had requested the administrator with the will annexed to make sale thereof, and distribute the proceeds according to law and the terms of the will. He therefore prayed that a citation might be awarded to the said administrator to appear and show cause, if any he had, why he should not proceed and make sale ©f said real estate. A citation was issued, and Mr. Price appeared and filed' his answer.
    The answer admitted the facts set forth in the petition; and set forth that a deference to the views of some of the legatees under the will had induced a delay in the sale, designing to await an improvement in the prices of some of the real estate; and suggesting a doubt whether the power in the will devolved on the administrator; but that he did not himself entertain such a doubt, but submitted the matter for the determination of the Court, with a request that instructions should be given as to the discharge of bis duty.
    The case was submitted without argument on the petition and answer.
   The following opinion of the Court was delivered by

King, President.

That the devise in this will vested the legal estate in the executors of William Meredith, is a proposition which is indisputable: Allison v. Wilson, 13 S. & R. 322; Menow v. Brenizer, 2 Rawle, 185; Allison v. Kurtz, 2 Watts, 185; Miller v. Meetch, 8 Barr, 425; Alexander v. Murray, 8 Watts, 504; and so far as respected the devisees, the executors, in the execution of the power, could have conveyed to a bond fide purchaser an infeasible title in fee-simple. The interest of the devisees was in the execution of the trust, unless, the debts of the testator being fully paid, they had all united in electing to take the land devised as land, and thus converted their interest into realty. But could this power be executed by an administrator with the will annexed in a case where, like the present, the executors refused to take upon themselves the execution of the trust ? This depends upon the true construction of our Acts of Assembly enacted to meet such emergencies. By the Act of the 31st of March, 1790, §4, it was declared “that when, by the last will and testament of a decedent, a naked authority only to sell lands, &c., shall be given to executors, they shall hold the same interest in such lands, &c., and shall have the same powers and authorities respecting the same as if such lands, &c., were devised to them to be sold.” By the Act of the 12th of March, 1800, this power was further defined, and extended to embrace, among others, cases where lands were devised to executors to be sold, or where authority was given to executors to make sales of land; and where one or more of the executors had refused to execute the trust, or had renounced his executorship. In which cases authority was given to the acting executors to execute the trust. It was further provided by the 3d section of this Act; that where all the executors of such a will were deceased, or refused or renounced, and letters of administration with the will annexed had been granted, that the administrators with the will annexed should have as full power to sell and convey the land devised or directed to be sold as was possessed by the executors named in the will. The 13th and 14th sections of the revised Act of 1834, re-enact these provisions of the Act of March, 1800, except those embraced in the 3d section, in reference to which they are entirely silent, neither supplying nor directly repealing it. But by the 67th section of the Act of 1834, it is declared that all and singular the provisions 'of this Act relative to the powers, duties, and liabilities of executors are hereby extended to administrators with'’ the will annexed.” This section was clearly intended to supply, among other things, the 3d section of the Act of 1800, the provisions of which the revisors preferred introducing in this general form, in one of the concluding sections of the revised statute. In their report, they refer to the 3d section of the Act of 1800, as embraced by this section, and declare that for the sake of brevity, they have introduced this general provision, placing administrators with the will annexed on the same footing in every respect with executors. But if it could be successfully contended that the provisions of the 3d section of the Act of 1800 are not embraced within the enactments of the revised Act of 1834, then the former must still remain in full force. For the repealing clause of the Act of 1834 only extends to acts thereby altered or supplied. If, therefore, the Act of 1834 repeals that of 1800, it supplies its provisions ; if it does not, then the Act of 1800 remains in full vigour. The circumstance that the testator requires two of his executors at least to concur in the sale of his real estate, has no influence on the question of the capacity of the administrator with the will annexed to execute the trusts of the will. He succeeds by virtue of his office to all the unexecuted powers of his predecessors in the trust, whether the latter were few or many. He neither supplies the place of one nor two, but of all, and possesses the authorities enjoyed by them all. In the opinion of the Court, the administrator with the will annexed of William Meredith, deceased, has the power to make the sale of this estate required by the petitioner, and it is his duty to proceed to do so.


author: KiNG, President. —

text:
    Margaret Pepper’s Will.
    Where property is conveyed by A. to B. in trust for the use of A. for life, with a power reserved to A. to dispose of it by writing under seal in the nature of a last will and testament, and duly attested by two or more witnesses, and to such persons as A. might appoint; and a will is thus made by A.; the legatees under such will can only claim under it as the execution of the appointment.
    A gift to A. and to such person as he shall appoint, is absolute property in A. without appointment; yet if it is to him for life, and after his death to such as he shall appoint by will, he must make such appointment in order to entitle that person to anything. But the question on the execution of a power by a testator is generally a question of intention. Hence the express declaration of such intention to execute the power need not appear on the face of the will.
    It is a settled rule, that no terms, however comprehensive, in a will, although sufficient to pass evei’y other species of property real and personal, will execute a power, unless they demonstrate that the testator had the power in contemplation, and intended by his will to execute it. If, however, the will contain a disposition of real or personal estate which is the identical subject of the power, then the power is deemed executed by the will, even when not specifically referred to.
    But no general devise or bequest of all a testator’s property real and personal, nor a general residuary clause, of themselves, are a sufficient power of appointment by a testator. Yet, however, when one having a power to dispose of real estate by his last will, and having no other real estate except that over which he possesses the power, devises by his will generally all Ais real estate, such devise is deemed to have been made in execution of the power, although such power is not specially referred to, or such real estate is not specially described in the devise.
    This principle has been held to embrace the execution of a power of appointment in relation to specific personal estate, where there is a special bequest of such personalty. But if the personal chattels were such in their nature as to be subject to constant change and fluctuation, a different rule must be applied. In such cases the will must refer to them as the subject of the power.
    Where it was declared in a deed that the appointment was to be executed by writing, under hand and seal in the nature of a last will and testament, and duly attested by two or more witnesses, and it was in writing, and in the presence of two witnesses, but not under seal; such is not a good execution of the power; but the same is not adequately executed as a general rule without the seal.

    A devise under such circumstances would be void, unless it is ultimately to enure to charitable uses. Where, however, it is for the benefit of charities, any writing, however informal as an execution of a power, is good as an appointment, within the statute of charitable uses.
    The law of charitable uses has always formed a part of the civil code of Pennsylvania. The statute of 43 Eliz., as a statute, has never been adopted in this state. But its conservative provisions have been in force here, by common usage and constitutional recognition. Not only so, but the more extensive range of charitable uses which chancery sustained before the statute of Eliz., and even beyond it.
    Where a power is executed by a will, in perfect conformity with our statute of wills, but in which a formula is omitted not required by other statutes, although required by the power authorizing the appointment by will; equity will aid the defect in favour of a charity; the will in other respects being executed according to the statute of wills. In this state, when the bequest is in conformity with onr statute of wills, and is to such charities as are always sustained in this Commonwealth, a mere formal defect in the execution of the power, will not be suffered to interfere with the provisions of the will.

      May 25.
    This case arose on a petition by some of the heirs at law of Margaret Pepper, deceased, stating, that on the 3d day of June, 1837, the said Margaret conveyed by deed all her real estate to one George Pepper, who was now deceased, and the said Margaret was also dead; that although the deed contains certain trusts, and reserved to the said Margaret the power of disposing of the same by a writing under her hand and seal, in the presence of two witnesses, in the nature of a last will and testament; yet that she had died without the exercise of any such power or authority thus reserved to her ; and praying the Court to appoint some suitable person as a trustee in the place of the said George Pepper, who was dead, in order that the uses and trusts in said deed might be executed.
    To this petition an answer was filed by George H. Thompson, in which he admitted the execution of the deed of trust as set forth in the petition, and that the trustee was deceased, and the death of the said Margeret; but denied that she had failed to exercise the power reserved to her in said deed by a testamentary disposition, 'but averred that by a writing, in the nature of a last will and testament, dated the 24th day of January, 1849, under her hand but without seal, she appointed the said Thompson and one Henry Sey-bert, who declined acting as executors thereof, and ordered her real estate to be sold by them at public or private sale, and the personal estate, amounting to about $300, she disposed of in the manner set forth in the will. In the first place she gave to George H. Thompson $3000 in trust to be invested properly, and to pay to Julia Ann Miller during her life the income of said sum, and after her death, the remainder, two-fourth parts to the Pennsylvania Bible Society, for the purposes of said society, and one-fourth part unto the treasurer of the Foreign Committee of the Board of Missions of the Protestant Episcopal Church in the United States of America, to be applied in support of foreign missions; and the other fourth part thereof to the treasurer of the Domestic Committee of the Board of Missions of the Protestant Episcopal Church in the United States, to be applied in support of domestic missions. There was also left to the same trustee $3000 for another person, with remainder over on a certain contingency, and to the same trustee, various other bequests, with remainders, after the termination of the life-estates, to the same charitable uses as mentioned in the first.
    The case was heard on petition and answer, and one admitted fact, which was, that the said deceased had no other real estate but that described in the deed of trust, and only about $300 worth of personal estate.
    The cause was argued by Mr. Ingraham for the petitioner, and Mr. Price for the respondent.
    Mr. Price contended that a donee may execute a power without referring to the instrument, if the attestation of the donee appears. Cited 1 Sug. 373, 430, 385, 388; Standen v. Standen, 2 Yesey, 589; 2 Watts, 185; Lewis v. Lewellin, 1 Taun. 104; 1 Sim. 28; 4 Kent Com. (6th ed.) 344.
    It is always a question of intention, whether a party means to execute the power or not. Formerly, it was required there should be an express reference to the power; but it is not necessary now. 8 Yesey, 616; Lancaster v. Dolan, 1 Rawle, 231; 7 Barr, 530 ; 2 Watts, 185; 8 Barr, 418.
    A greater latitude is taken where it is a party’s own estate: Porter v. Turner 3 S. & R. 114; 2 Yint. 350. The Court, in deciding upon the intention of a testator, receive evidence of the value of the property devised or referred to in the will. Marshall’s Appeal, 2 Barr, 388; Brown’s Estate, 2 Barr, 428; 4 John. R. 63; 6 Cruise, 173; 1 P. Wm. 286 ; 4 Bro. R. 446; 2 Yesey, 616; 1 Story’s Rep. 426, 445; 2 Story, Com. Eq. § 1062, 431, note 3.
   The opinion of the Court was delivered by

KiNG, President. —

Margaret Pepper, by deed executed on the 3d day of June, 1837, conveyed to George Pepper certain valuable described real estate of which she was owner, and which composed all her property of any value, except a very small amount of personal estate, principally household furniture. The profits of the estate were to be received by Miss Pepper, during her life. A power was reserved to her, to dispose of it “ to such person or persons, purpose or purposes, and at the time and times, and in such parts and proportions, manner and form, as the said Margaret Pepper, whether sole or covert, by any writing under her hand and seal, in the nature of a last will and testament, and duly attested by two or more credible witnesses, should direct, limit, and appoint. And in case the said Margaret Pepper should not have executed such writing, in the nature of a last will and testament, then in further trust for the right heirs of the said Margaret Pepper, according to the intestate laws of Pennsylvania.” On the 24th of January, 1849, Miss Pepper executed a last will and testament in the presence of two witnesses, which was signed by her, but is not sealed. This will does not express on its face to have been made in execution of the power reserved by the deed of June 1837; but, except the small personal estate referred to, she possessed no other property of any value on which the will could operate. The will in the first place devises all her estate, real and personal, to her executors, George IT. Thompson and Henry Seybert, in trust to sell the same and convert it into money, and apply the same to the payment of her debts and legacies. The money thus raised, she disposes of as follows: — First, as to $3000 thereof, in trust to pay the interest thereof to her niece, Julia Ann Miller, during her natural life, and after her decease the principal sum to be divided into four equal parts; two parts thereof to be paid over to the Pennsylvania Bible Society, for the purposes of the said society; .one part thereof to the treasurer for the time being of the Foreign Committee of the Board of Missions of the Protestant Episcopal Church in the United States of America, to be applied in support of foreign missions; and one part thereof to the treasurer’ of the Domestic Committee of the Board of Missions of the Protestant Episcopal Church in the United States of America, to be applied in the support of domestic missions. Second, as to another $3000, in trust to apply the interest thereof to the support and education of A. Hamilton Thompson, son of her late nephew, Theodore Thompson, until he arrives at the age of twenty-five years, when the principal is to be paid over to him. But in case of his dying before arriving at that age, this principal to be paid over in the same proportions, to the charities above enumerated. Third, as to another sum of $2000, in trust to pay the interests thereof to her niece, Mary Ann Stump, during her natural life, the principal sum to be divided after her decease in the same way among the same charities. Fourth, as to another sum of $2000, in trust to pay the interest thereof to her niece, Eliza Hutchinson, during her natural life, and after her decease the principal sum to be divided in the same way among the same charities. She then bequeaths a further sum of $2000 to George Thompson, one of her executors, to be safely invested, and the interest thereof to be paid to her friend, Mary Thompson, during her natural life, and after her decease, the principal to be divided in the same way among the same charities. She also bequeaths to the same George Thompson, a further sum of $4000, in trust to invest as aforesaid, and pay the interest thereof to Jane Brown, during her natural life, and at her decease she directs the division of the principal sum in the manner heretofore described. She then bequeaths two small legacies of $40 each, to two coloured servants, and a legacy of $200 to a female relation. The residue of her estate she gives to her executors in trust to distribute the same among such religious societies and objects, as they may deem expedient, and in such sums and forms, as they may deem proper: declaring it to be her will, that they shall have the same entire control, as she could have had if living to distribute the same. In a codicil she directs the sum of $500 to be added to each of the legacies of her nieces, Eliza Hutchinson and Mary Ann Stump, so that they shall each be increased to $2500. This codicil is signed in presence of two witnesses, but is not under seal.

The case came before the Court under a petition filed on behalf of a portion of the heirs-at-law of Margaret Pepper, to appoint a new trustee under the deed of settlement of June 1837, in the place of George Pepper, who is deceased. The application is resisted by the executors and appointees of the will of Margaret Pepper, who insist that the will is a sufficient execution of the power secured to her by the deed of 1837, and that even if that is not so, this Court has no jurisdiction to grant the relief prayed for by the petitioner.

The questions involved in the cause are of great interest. They have therefore received a more than ordinary consideration from the Court. For the purposes of simplification and clearness, we propose attempting the solution of four propositions into which the case seems to divide itself. First, is this will a good execution of the power created by the deed of June 1837, supposing it to be adequately executed according to the requisitions of that deed, although it does not on its face purport to be made in execution of the power? Second, is the power on general principles adequately executed by the will, the latter not being under seal, as is required by the deed ? Third, if, on general principles, the will is not an adequate execution of the power, because not executed under seal, is it a good execution of the power, so far as respects the charitable bequests, under the statute of 43 Eliz., ch. 4; or rather according to the principles of that statute adopted into and forming part of the common law of Pennsylvania, this statute as such not being in force- in Pennsylvania ? Fourth, has this Court the jurisdiction, the exercise of which is invoked by the petition before us.

First, then, is the execution of the power by the will defective as is contended, because the will does not on the face thereof purport to have been made in the intention and with the purpose of executing the power ?

There have been few subjects which have given rise to more discussions, or which have exhibited greater conflicts of opinion among equity lawyers, than those involving inquiry how far it is necessary to refer to the instrument creating a power, in another by which it is supposed to be executed. For the purposes of this case, it is unnecessary to enter into this field, of controversy, farther than to refer to certain portions, which have been fully settled in the progress of the conflict, and which rule the case before us.

We will first premise that the legatees in this will can only claim under it, as the execution of the appointment; for, although a gift to A. and to such person as he shall appoint, is absolute property in A. without appointment, yet if it is to him for life, and after his death to such as he shall appoint by will, he must make such appointment in order to entitle that person to anything. A distinction said by Sir William Grant, in Bradley v. Westcott, 13 Vesey, 452, to be slight, but perfectly established, for in such case the property vests. Questions on the executions of powers by testators are, like most questions arising under last wills, questions of intention: Probert v. Morgan, 1 Atk. 444; Ex parte Caswell, 1 Atk. 560; Adams v. Austen, 3 Russell, 461. Hence it has always been held that an express declaration of the intention to execute a power, need not appear on the face of the will, provided such intention otherwise sufficiently appears: Probert v. Morgan, Ex parte Caswell, Adams v. Austen, Bradley v. Westcott, ubi supra; Sugd. on Powers, chap. 6, § 7, paragraph 1; Andrews v. Emmett, 3 Bro. C. Cases, 303. This general rule is apparently a simple one; and yet the inquiry as to what state of things-sufficiently manifests an intention in a testator to execute a power by his will, to which power he does not specifically refer, has given rise to the greater part of the cases on the question whether a preexisting power has been actually executed by a subsequent will..

It is settled by these cases, that no terms, however comprehensive,, in a will, although sufficient to pass every species of property, real and personal, will execute a power, unless they demonstrate that the testator had the power in contemplation, and intended by his will to execute it. Where the will, however, devises or bequeaths' described real estate, or specific personal estate, which is the identical subject of the power, in such cases, the power is deemed executed by the will, although not specifically referred to therein. For where the specific and exact property, over which the testator possesses a disposing power by his will, by way of appointment, is specifically and exactly referred to in the devises and bequests of his will, no room is left for an intelligent doubt that in so devising and bequeathing such property he intended to exercise the power over it with which he was invested. But no general devise or bequest of all a testator’s property, real and personal, nor any general residuary clause^ will be in themselves a sufficient exercise of a power of appointment by any testator. The authorities to this point are-numerous and conclusive; Adams v. Austen, 3 Russell, 461; Horte v. Blackman, 6 Maddock, 190; Lowson v. Lowson, 3 Brown’s Ch. Rep. 272; M’Leroth v. Bacon, 5 Ves. Jr. 159; Moulton v. Hutchinson, 1 Atk. 558; Ex parte Caswell, Ib. 55; Bueland v. Barton, 1 Henry Black. 136; Croft v. Slee, 4 Ves. Jr. 60; Nancrek v. Horton, 7 Vesey, Jr. 391; Roach v. Hayes, 8 Vesey, Jr. 584; Bradley v. Westcott, 13 Vesey, Jr. 444. But this general doctrine, which negatives the adequacy of a general devise or bequest in a will to execute a power possessed by the testator, has also well defined exceptions. Among which is found this: That where one possessing a power to dispose of real estate by his last will, and having no other real estate except that over which he possesses the power, devises by his will generally all his real estate, such devise is deemed to have been made in execution of the power, although such power is not specially referred to, and although the particular real estate embraced in the power is not specially described in the devise. Thus in Deg v. Deg, 2 Peere Williams, 415, Lord Chancellor King ruled that if one tenant for life of lands in Dale, with a power to revoke uses and limit new ones, by his will devises all his lands in Dale, having no other lands, the lands in the power will pass by this devise, “ if the will be circumstanced, as the power requires, although no mention be made of the power.”

It is upon this principle the decision in the celebrated case of Standen v. Standen, 2 Vesey, Jr. 589, rests; a case the authority of which has never been denied, although the reasoning of Lord Rosslyn therein has been much questioned by subsequent equity Judges and lawyers: See Langham v. Newry, 3 Vesey, Jr. 470; Bradley v. Westcott, 13 Vesey, Jr. 453; Jones v. Tucker, 3 Merivale, 533; Jones v. Aurre, 1 Swanst. 66. The recent case of Denn v. Roake, 5 B. & C. 732, may be regarded as settling the doctrine of the English Courts in this particular branch of the law of powers. There Lord Chief Justice Abbott thus sums up the result of all the precedent cases: “If,” says he, “a will contains a devise of all the testator’s lands generally, and he has some lands upon which the will may work by his interest, the law will attribute the will to his interest, and the land, of which he has only a power to devise, will not pass. So, if the will be of all his land in a county or place named, and he has lands- of his own therein. On the other hand, if the testator has no lands, or none in the county or place named, upon which the will may work by his interest, there the law will attribute the will to his power, because if that be not done, the will will be void, either wholly or as far as respects the county or place named.” The case of Lewis v. Lyman, 1 T. R. 104, is an instance of the application of this rule. There a testator, having a power of appointment over certain freehold and copyhold estates, and being seised of other freehold estates, devised all his freehold and copyhold estates, without reference to the power. This was held a sufficient execution of the power as to the copyhold, though not as to the freehold, estates. “ The will,” said Mr. Justice Best, who sat in the case for the Master of the Rolls, “ does not refer to the power, but the question is, whether it does not refer to the estate. It refers to the estate in clear and unequivocal terms, and as the rule is, that all the words of a will should if possible have effect, and as these words with respect to copyholds cannot be satisfied by anything short of considering them an execution of the power, ‘ ut res magis valeat quam pereat,’ they should be so construed.”

The doctrine has been held to extend even to appointments of estates less than of freehold, as in Grant v. Lyman, 4 Russ. 292, where it was said by the Master of the Rolls, Sir John Leach, that “ there was no distinction between freeholds and leaseholds in the nature of the subjects, the difference being only in the quantity of interest; and that there did not appear to him to be any solid ground upon which it could he maintained, that a gift of a leasehold, where the donee of the power has no other leasehold than the subject of the power, does not equally manifest an intention to execute the power as the gift of a freehold under the same circumstances.”

This principle has been held to embrace the execution of a power to appoint specific personal estate, by a specific bequest of such personalty, as in the case of Walker v. Mackie, 4 Russell, 76, where a testatrix, having a power over certain sums in the three per cent, stock which were standing in the name of the Accountant-General of the Court of Chancery, gave by her will “ all the rest and residue of her bank stock to her god-daughter, except ¿£50 of her bank stock, which she gave thereout to her executors.” This bequest was deemed a good execution of the power, because of its clear manifestation of the intention of the testatrix, as to the particular stock which was the subject of the power.

A general gift of moneys, securities for moneys, and other personal chattels, which are in their nature subject to constant change and fluctuation, stands upon very different principles, and as to them, the will must refer to them, as the subjects of the power, or they will not pass: Grant v. Lyman, 4 Russ. 292.

It is manifest that we must go dehors the will to ascertain the fact that the testator possessed no other real estate, or specific personalty to which a general devise or bequest thereof could apply, except that embraced in the power; in order to apply this principle to a given case. As to real estate, or specific personalty, this has been done without hesitation, as will be seen from the cases of Jones v. Curry, 1 Swanst. 72; Standen v. Standen, 2 Ves. Jr. 589; Sibley v. Perry, 7 Vesey, 522. All efforts, however, have been resisted to ascertain from the status of the testator’s general personal estate, at the time of his death, the existence of a state of things from which an inference could be drawn of his intention to execute a power over any general personal estate by a general or residuary bequest of all his personal property. Inquiries for this purpose have always been refused by Courts of Chancery, as leading to results too speculative, uncertain, and unsatisfactory to form the basis of judicial action: Jones v. Tucker, 2 Merivale, 533; Nancrek v. Horton, 7 Vesey, Jr. 398; Andrews v. Emmet, 2 Brown Ch. Rep. 303; Webb v. Honner, 1 Jacobs & Walker, 352.

Applying these principles to the case before us, it is quite clear that the will of Margaret Pepper was a sufficient execution of the power, as respects the real estate secured to herself by the deed of 1887, provided the will is executed in conformity to the requisitions of that power. She had no other real estate except that embraced in the power, nothing savouring of realty, that excepted. This is an undisputed fact. Of consequence this case comes directly within the principles discussed and adopted.

We are thus brought to the second branch of the inquiry, viz. Was the will executed in conformity to the requisition of the power ? By the deed of 1837, the power of appointment secured to Margaret Pepper, was to be executed “ by any writing under her hand and seal, in the nature of a last will and testament, and duly attested by two or more credible witnesses.” This will is in writing, and executed in the presence of two witnesses, but is without seal. That an instrument so defective in one of the requisitions of the power purporting to be executed by it, would generally be deemed incurably defective execution of the power, is quite clear. Since the case of Boomer v. Thurland, 2 Peere Williams, 506, it has been settled, that a power required to be executed by a last will under seal is not sufficiently executed by such an instrument without a seal. That case arose in equity before Lord Chancellor King, who, considering the question raised as one of pure law, referred it to the Judges of the King’s Bench, who decided the power to have-been inadequately executed, because the will purporting to execute it was without seal, the power requiring its execution under seal. The impression first entertained by Lord King, that, -because the will was good as such, the power was well executed by it, has always since been repudiated, and most rightly; because the solemnities required by the creator of the power in order to its due execution, are intended for the protection of those vested with the authority to dispose of the property. The donees of such powers are generally married females, and others unacquainted with the nature and effect of legal instruments, and such formalities are often most important adjuncts in protecting them from fraud and imposition. But be this as it may, the creator of the power has the fight to require their fulfilment, in order to the efficacious execution of the authority given by him; and no Court can, consistently with a just regard to the rights of property, refuse to enforce them.

“If,” says Lord Ellenborough, in Hankins v. Kemp, 3 East, 420, “these circumstances be unessential and unimportant, except as they are required by the creator of the power, they can only be satisfied by a strictly literal and precise performance. They are incapable of admitting any substitution, because these requisitions have no other spirit in them that can be satisfied; incapable of receiving any equivalent, because they are in themselves of no value.” The case of Porter v. Turner, 3 S. & R. 108, is decided on these principles. There the testatrix, having a power to dispose of the property by any writing under her hand and seal, executed in the presence of two witnesses. This power the testatrix first attempted to execute by a testamentary writing in the form of a letter, signed, but not attested at the time of its date by any witness. Afterwards she added a codicil to this will, which was signed and sealed in the presence of three witnesses. At the same time she acknowledged both instruments as her last •will. This was adjudged a sufficient execution of the power, upon the ground that the two instruments, thus published simultaneously, in effect constituted one whole. Chief Justice Tilghman, with whom Judge Gibson concurred, says, that “the solemnity of a seal is not considered with the same veneration now, as formerly. Still this Court has no power to dispense with a seal, where the party creating a power has required one.'”

Since the passage of the recent English Statute of Wills, questions, such as those discussed, have practically ceased to arise in the Courts of that country. By that statute it is provided, that by bequests of all a testator’s real or personal estate, all property shall pass, over which he possessed a disposing power, either by direct ownership, or in virtue of any power of appointment; unless otherwise expressed by the will. And that if a will is executed in the manner prescribed by the Act, it shall sufficiently execute any power of appointment possessed by the testator, although other particular forms are required by the creator of the power.

With us, however, the law remains as before the statute. Its enactment shows the principles of the English Courts to have been so inveterately established on this subject as to require the potency of a statute to change them.

It would therefore follow, necessarily, from these premises, that the appointment in this case, not being under seal, is null, unless the fact that the devise is ultimately to enure to charitable uses, saves it from the operation of an otherwise general rule. That this ■would be the case in England at this time, if the bequests in this will had been bequests of mere personal estate, to continue as such, is clearly shown by the very recent case of Innes v. Sayer, 20 Law Journal Reports, 274. There, a power executed by a will made before the recent statute of wills, and defective in a manner analogous to the defect in execution in this case, was sustained as a good appointment to a charitable use. The principle established for centuries in the English chancery in this respect, has been that where an appointment is to a charity, any writing, however informal as an execution of the power, is good as an appointment within the statute of charitable uses. This celebrated statute was passed at a session of Parliament, which began on the 27th of October, and ended on the 19th of December, 1601. Its preamble and enactments show it to have been intended to provide new means for the assertion of existing recognised legal obligations and duties, and not to introduce anything new into law or equity, except new and vigorous remedies. That this was its true character, is clearly demonstrated by the cases of the Incorporated Society v. Richards, 1 Drury & Warren, 250; Attorney-General v. The Mayor of Dublin, 1 Bligh, 327; Innes v. Sayer, supra; Burr v. Smith, 7 Vermont Rep. 291, and Vidal v. The City of Philadelphia, Howard’s Reports.

Although it would seem from precedents cited by Mr. Binney in his great argument in the latter case (p. 59), that equity had exercised, before the statute of 43 Elizabeth, a jurisdiction in all respects analogous to that exercised subsequently, yet most of the cases in the books are decisions since the statute, and purport to have been made under it. Most of these decisions were made under circumstances much more urgent than the present, and the relaxation in favour of charities extended to what might be called, and not too irreverently, extravagant lengths. In the Jesus College, or, as it is called in Hobart, Griffith Blood’s case, a devise to a charity was deemed good, although void by the statute of wills, 32 Henry 8, both as a devise of lands to a corporation in mortmain, and as the devise of all his lands by a tenant in eapite, when, by the statute of Henry, the right of disposition of lands in eapite by will was limited to two-thirds, one-third being required to descend: Hobart, 136; Duke on Charitable Uses, by Bridgeman, 363. This cause was decided in 1615.

In Revett’s case (1617), Duke, 366, Moore, 890, a decree by a copyholder without a previous surrender to his use, which, though void at law, was held good under the words “ limited and appointed” in the statute of 43 Elizabeth. In Roth’s case (1617), Duke, 368, Hobart, 136, Moore, 88, a devise of all the testator’s eapite lands to a charity was, though void at law, held within the relief of the statute. To the same effect as the former cases was Christ’s Church Hospital v. Hawes, Duke, 370, decided in 1670. In Stoddard’s case (1622), Duke, 373, a nuncupative will of a rent charge out of lands in favour of a charity was held good by the words “ or limitation and appointment,” being good as a limitation or appointment, though void as a gift. To the same effect was Hillom’s case, Duke, 375, (1629) and Worford Parish v. Parkhurst (1639), Duke, 378. In Platte v. St. John’s College, Duke, 375, the devise of a remainder was held good, without a particular estate to support it. “ This defect being made good,” said Lord Keeper Coventry, “ by the statute, by a benign and favourable interpretation for maintenance of charity, as in other cases upon statutes for piety and charity.” After the statute of frauds and perjuries, 29 Charles 2, ch. 3, which went into effect in 1677, wills of lands in favour of charities were required to be in the form prescribed by that statute in other -wills of lands. The first case subsequent to that Act was Tay v. Slaughter, (1690), Precedents in Chancery, 16, before the Lords Commissioners, the great seal being then in commission. That was a devise of lands by a tenant in tail to a charity, without having first levied a fine or suffered a common recovery. And this will was held an effective transfer of the land to the charity against the remainder-man, who impeached it after the estate tail was spent; although this remainder vested in an infant. In the Attorney-General v. Rye (1703), 2 Vernon, 453, the Lord Keeper Wright sustained a devise by a tenant in tail in favour of a charity against the issue in tail, saying, “ that the intent of the act of the Queen for charitable uses, was to make the disposition of the party as free and easy as his mind, and not to oblige him to the observance of forms of conveyance, either by lease, release, or common recovery or fine, &c.” The case of the Attorney-General v. Barnes (1707), 2 Vernon, 597, Precedents in Chancery, 270, was a devise of lands in favour of a charity, by a will not executed in the form required by the statute of frauds. This, however, Lord Cooper ruled to be bad, the terms of the statute being absolute and extending to all devises of lands. The case of Jenna v. Harper, 1 Salk. 163, 1 P. Wm. 247, decided in 1714 by Lord Chancellor Harcourt, arose from a parol devise of a rent issuing out of lands to a charity. According to Salkeld’s report of this case, Lord Harcourt said that “the statute of 43 Elizabeth, which favoured appointments to charities, was repealed ‘pro tanto by the statute of frauds.” The decision here was against the devise, although made in 1651, and consequently before the passage of the statute of frauds. In the case of the Attorney-General v. Burdett (1717), 2 Vernon, 755, the Master of the Rolls, Sir Joseph Jekyll, ruled that an appointment to a charity, made by a tenant in tail, would bind the reversioner in fee; the statute of charitable uses supplying all defects of such assurances.” In the same year, 1717, arose the case of Pigott v. Penrice, Precedents in Chancery, 471, Gilbert’s Eq. Cases, 137-8, a case peculiarly applicable to more than one feature of the present. There A. made a settlement of lands, with a power of revocation by writing to be executed under hand and seal in the presence of three witnesses, not being menial servants; and in her illness, by letter desired a deed of revocation to be prepared, but died before it was done, having by will given part of these lands to charitable • uses. This was decreed at the Rolls to be a good revocation as to the charities, but void as to the other devisees. From this decree an appeal was taken to the Lord Chancellor by the general devisees. As to the charities, the decree at the Rolls was acquiesced in, being probably considered too clearly correct to justify further litigation in that particular. The decision at the Rolls was, however, confirmed by Lord Cooper. The effect of this decision is, that although equity will aid a defective appointment to a charity, it will not aid the same defective appointment so made to another appointee. This decision has ever since been received as law, and was the ruling decision cited and relied upon in the recent case of Innes v. Sayer, in which aid was given to an appointment in favour of a charity quite as defectively executed as that before this Court. The case next in order is The Attorney-General v. Sawtell, 2 Atk. 497. There the testator had surrendered his copyhold lands to the use of his will. A scrivener had orders to engross this will, but the testator being in extremis, the rough draft, consisting of eleven sheets, was brought to him, and he signed only the two first, but died before he could sign the rest. Lord Chancellor Hardwicke held this to be a good appointment of the copyhold to a charity aeeording to the statute of 43 Elizabeth of charitable uses. This case is, however, in entire harmony with the statute of frauds. Because it is settled doctrine that wills of copy-holds stand clear of the statute of frauds as well as of the statute of wills. The lands pass by the surrender, and the will has no specific operation under the statute of wills but as a mere declaration of an use. See Roberts on Wills, chapter 1, § 3, p. 37.

It is true that this course of decisions met from time to time with resistance. Judges and text-writers have expressed their disapprobation of what they have termed its “ alarming extravagance;” of “the anomalies introduced by it, irreconcilable with any sound principle of judicial interpretation or proper exercise of judicial authorityof deduction being drawn from the statute of charitable uses “ which the makers of that statute never thought of;” but still these decisions have held their places in the law of charities, except where superseded by positive statute. Lord Chancellor Sugden, in The Incorporated Society v. Richards, 1 Drury & Warren, 300, after questioning their original propriety, concluded with saying “ that these cases have been too long the law of the land, and it is now too late to disturb them.” See Shelford on Mortmain, ch. 5, § 1, p. 514; Attorney-General v. Barnes, 2 Vernon, 597; Precedents in Chancery, 270; and Incorporated Society v. Richards, supra.

The growing dissatisfaction with them, however, led to the passage of the Act of 9 George 2, ch. 36, which, went into effect on the 24th of June, 1736, and which corrected most of the evils supposed to have flown from the too liberal course of decisions made in equity-in favour of charitable bequests, grants, and devises.

This statute has been said to be improperly called, a statute of mortmain; being truly a statute to restrain gifts to charitable uses: Corbyn v. Trench, 4 Vesey, Jr. 427, per Aden, Master of the Rolls. It makes void all gifts of lands, or moneys, or personal property, to be laid out in the purchase of lands, for the benefit of any charitable use whatsoever, unless made by deed, sealed and delivered in the presence of two witnesses, twelve months before the death of the donor or grantor, and enrolled in the Court of Chancery within six months after execution, &c.; and unless the same be made to take effect in possession for the charitable uses intended immediately, and be without any power of revocation, reservation, trust, limitation, or agreement whatsoever, for the benefit of the donor or grantor, or any person or persons claiming under him.” The statute, and the numerous decisions under it, which fully carry out the policy of its framers, have heretofore foiled every ingenious attempt made to evade its provisions, and have rendered comparatively harmless the doctrines extended, if* not introduced, by the statute of 43 ’Eliz., leaving them only in vigour as to appointments of pure personalty, to be continued as such. Under this statute a bequest of moneys to arise from the sale of lands is void. This was decided by Lord Hardwicke, in The Attorney-General v. Weymouth, Ambler, 201. To the same effect is Parce v. The Archbishop of Canterbury, 14 Vesey, 360; Wastes. Webb, 6 Madd. 73. Hence the charitable bequests in the will before us would at this time be utterly void in England as to lands, though the power were otherwise ever so perfectly executed.

The statute of 9 George 2 never was in force in this state, and of consequence the law of charitable uses with us, stands unaffected by it. That the law of charitable uses has always formed part of our civil code, is not now an open question. It is true that the statute of 43 Eliz. as a statute never had an existence in this state, and simply because its peculiar machinery was wholly inapplicable to our colonial institutions. But its conservative provisions have been in force here by common usage and constitutional recognition, and not only these, but the more extensive range of charitable uses which chancery supported before that statute and beyond it: Zimmerman v. Anders, 6 W. & S. 218; Witman v. Lex, 17 S. & R. 88; M’Give v. Aaron, 1 Penn. Rep. 49; Mayor v. Wills, 3 Rawle, 170; Methodist Church v. Remington, 1 Watts, 218; Ex parte Cassel, 8 Watts, 440; Martin v. M’Cord, 5 Watts, 494. How far we have adopted the English doctrines of charitable uses, whether as they existed anterior to 43 Eliz. or as they have been developed since that statute, would be a difficult question to answer, and at the same time an unnecessary one to be responded to. As was truly said in Witman v. Lex, “ This must be a matter of gradual developement, according to the exigency of the cases that may arise.” How, although no case has arisen in our Courts, in which the exact question of the aid given by equity to a power defectively executed in favour of a charity, has been adjudicated upon, yet the analogies of the decided cases afford sufficient reason for us to say that this is one of the conservative doctrines flowing from or expanded by the statute of charitable uses, which forms part of our system of the law of charities. The aid so given to an instrument of conveyance merely defective in form, is certainly one of the least obnoxious features of the peculiar doctrine of equity in regard to charities. It has so far recommended itself to favour in England, as to have led to its legislative adoption in their statute of wills, as to all cases of appointments, defective in such a point as that which affects the one before us. The cases cited, in which our Courts have applied the principles adopted by chancery in regard to charitable donations, have been infinitely more urgent in their features than the present, which is simply the case of a power executed by a will made in perfect conformity with our statute of wills, but in which a formula is omitted, not required by that statute, though required by the power authorizing the appointment by will. In such a case, it is certain that at this day in England equity would aid this defect in favour of a charity: the will being in other respects made according to their statute of wills, and the bequest being consistent with the statute of 9 Geo. 2. In this case the will is executed in conformity with our statute of wills, and its bequests are to such charities as have always been sustained in this Commonwealth. Our Courts, therefore, ought not in such a case to hesitate in applying to any formal defect in the execution of a power by such a will in favour of charity, the aid extended by equity for centuries to similar defects.

Another question has presented itself in this case, of considerable gravity, in respect to the parties to whom the life and contingent bequests of this estate enure, before it finally reaches the charities. Suppose that equity will supply the defect in this appointment in aid of the ultimate bequest to the charities: will it do so in reference to the previous life and contingent bequests ?

Two of the cases cited seem to intimate that the aid given by equity to defective assurances in favour of charities, is not extended to associated devises or bequests to individuals. In Platt v. St. John’s College, Sawbridge, Duke, 379, a tenant, seised in tail of copyhold land, made a surrender to the uses of his will, and suffered a recovery, in which no judgment was given against the vouchee, and afterwards devised the land by his will to his wife for life, Avith remainder to a charity. The Lord Keeper Littleton decided that “ the recovery was void at law to cut off the estate-tail, and as to the wife to Avhom the land was devised for life, the heirs had liberty given them to evict them; but as to the college, and to the remainder limited to them, the devise was good by the statute of 43 Eliz. of charitable uses, for there was a gift and limitation of the land to a charitable use, which shall not be avoided for want of a circumstance at law to make it good.” In the case of Pigott v. Penrice, already cited, which is a leading case as to the aid granted by equity to defective executions of powers in favour of charities, the power of revocation reserved by the grantor was adjudged Avell executed as to the charity, but void as to the other appointees, he-' cause not executed in the manner required by the settlement. In this case the power of revocation was also reserved by the settler herself, in the deed of settlement.

It is not, however, necessary now to rule this point, and which we do not intend to do. In holding the appointment to the executors of this will as trustees, good as respects the charities, we hold the estate appointed to be sufficiently vested in them to carry out all the IaAvful trusts of the will. If there exists any particular class of cestui que trusts, to whom the bounty of the testatrix cannot enure by reason of incurable defects in the donation to them, then the heirs-at-law of Margaret Pepper can make any reclamation they may legally have against that part or interest in the fund derived from the sale of the land, when in the hands of the trustees for appropriation, according to the terms of the trust. At that time the doubt that exists in this part of the case may be solved, and certainly we would rather desire that the appointment should be held good in toto, than partially good and partially bad; good as to the charity, but bad as to the other donees.

It follows, from the conclusions we have arrived at, that the application by the heirs-at-law in opposition to the executors and appointees in trust of Margaret Pepper, to appoint a trustee in the place of George Pepper, deceased, should he refused, and it is accordingly refused.