author: Chief Justice Agnew

text:
    Jordan et al., Assignees, versus Sharlock.
    1. In a suit by assignees under a voluntary assignment for the benefit of creditors, upon a note to the assignor which did not fall due until after the assignment, the creditor may set off a debt due to him by the assignor at the time of the assignment.
    2. S. made his note for §350, June 13th 1876, at ninety days, which the bank discounted and held on and before the maturity of the note. S. had a running account of .deposits in the bank before and during the running of this note, on which there was a balance due him on September 6th 1876, of §395.50. The bank made a voluntary assignment for the benefit of creditors on the 7th of September 1876. In a suit by the assignees upon the note. Held., that S. had. the right to set off the deposit against the note.
    3. Bosler v. The Exchange Bank, 6 Barr 32, distinguished.
    May 22d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Dauiohin county: Of May Term 1877, No. 102.
    Amicable action by Francis Jordan and Geoi'ge W. Porter, assignees of the City Bank, against Martin Sharlock, in which the following case was stated for the opinion of the court:—
    '• “ 1. That the defendant had a running account of deposits in said City Bank, from 22d November 1875 to 6th September 1876, on which, at said last-mentioned date, there was a balance due to said defendant of $395.50.
    “ 2. That on the 13th day of June 1876 said defendant made, and had discounted at said bank, the following note, viz.:—
    “ ‘$350.00.
    Baldwin, June 13th 1876.
    “ ‘ Ninety days after date I promise to pay to the order of Samuel Witmer, three hundred and fifty dollars, at City Bank of Harrisburg, without defalcation, for value received.
    “ ‘ S. Witmer.
    (Signed) Martin Sharlock.’
    “ 3. That on the 7th of September 1876 the City Bank made an assignment of all its property and effects, including said note, to the plaintiff, in trust for the payment of debts, and said assignment was duly acknowledged and recorded the same day.
    “ 4. That said note was duly endorsed on the day of its date, by said Samuel Witmer ; and on its maturity, on tbe 14th day of September 1876, was duly protested for non-payment, the plaintiff refusing to allow the defendant a set-off, as claimed by him, for said deposit of $390.50, or any part thereof, in payment of said note, the assets of said bank being insufficient to pay the debts.
    “ 5. If, under these facts, the plaintiff is entitled to recover, then judgment to be entered for the plaintiff for said sum of $350, with interest thereon from the said 14th September 1876, with $2.10 costs of protest; and if the said plaintiff be not entitled to recover, then judgment for said defendant for the sum of $45.50, with interest thereon from said 14th September 1876.”
    The court, Henderson, A. L. J., delivered an opinion, inter alia, saying
    “ It is held in general, in this country, that when the consideration on which the debts in question were based, respectively, is mutual, the period at which they become due is immaterial. The better opinion would seem to be, that demands which were mutual in the lifetime of the parties may be set-off after their death, though not due when it happened, if they become due before action brought. And where the estate is insolvent — where, after suit is commenced by the administrator, the estate of his intestate is represented insolvent, the defendant may set off a note against the intestate which falls due pending the suit, though not due and payable when the action was commenced. And, again, where an estate is represented insolvent, all mutual demands of every nature and kind are to be set of, and the balance only is the debt due to the estate. In case of an insolvent estate, as there must be a final settlement of all demartds, it follows as a necessary consequence that a debitum in presentí, although not a debt due, is within the principle and may be set off: Bigelow v. Folger, 2 Metcalf 255. This may go further and seem inconsistent with the principle enunciated in Bosler v. Exchange Bank; but when we consider that insolvency is the shifting factor that disturbs the equilibrium of these cases, and that considerations of public policy enter into the solution of the cases in which ‘ the debt’ is a deposit in bank, we are constrained to think that the spirit and reason of the Pennsylvania. decisions are in accord with the general doctrine stated above: Murray v. Williamson, 3 Binn. 135; Stuart v. The Commonwealth, 8 Watts 74 ; Cramond v. Bank of the United States, 1 Binn. 64.”
    The court directed judgment to be entered in favor of the defendant, and the plaintiff took this writ, assigning this entry of judgment for error.

      Hall & Jordan, for plaintiff in error.
    The right to set off the deposit in payment of the note would have existed had the note been due prior to the date of the assignment, but not being then due the right is denied. The assignment was a legal transfer of the insolvent’s property, including the note in question, in trust for the payment of debts, just as the death of an insolvent debtor works a legal transfer of his personal estate in trust for the benefit of the creditors of such decedent.
    This case is ruled by Bosler v. Exchange Bank, 4 Barr 32, and the appeal of the Farmers’ and Mechanics’ Bank, 12 Wright 57, and the principle of these cases is supported by Poorman v. Goswiler, 2 Watts 69, Beeler v. Turnpike Co., 2 Harris 162, and Singerly v. Fox, 25 P. F. Smith 112.

      John H. Weiss, for defendant in error.
    The assignee is the mere representative of the debtor and is bound where the latter would be bound. He is the mere hand of the assignor in the distribution of the fund and not the representative of the creditors: In re Fulton’s Estate, 1 P. F. Smith 211. The assignees succeeded only to the rights and equities of the assignor, and as the defendant can set off this debt as against the assignor he can as against the assignees.
    June 4th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

In re Fulton’s Estate. 1 P. F. Smith 211, it is said: “ Perhaps nothing is better settled in this state by uniform and numerous decisions than this, that a voluntary assignee is the mere representative of the debtor, enjoying his rights only and no others; and is bound where he would be bound; that he is not the representative of the creditors, and is not clothed with their powers; that he is but a volunteer and not a bona fide purchaser for value.” Many cases are cited for these propositions. Martin Sharlock made his note of $350, June 13th 1876, at ninety days, which the City Bank discounted and held on and before the maturity of the note. He had a running account-of deposits in the bank before and during the running of the note, in which there was a balance due him September 6th 1876, of $395.50, the bank then being the holder of the note. The bank made a voluntary assignment for the benefit of creditors on the 7th of September 1876. When the note passed by this assignment to the assignees, Sharlock was the creditor of the bank and had an immediate right of action against it. The assignees being the mere representatives of the bank and not purchasers for value took the note subject to his right of set-off. It is clear according to the authorities, that the bank conferred upon the voluntary assignees no right greater than their own, which was a right of action when the note fell due subject to the existing set-off.

Bosler v. The Exchange Bank, 4 Barr 32, and its sequents, were decided on a widely different principle. When Bosler died the bank had no debt due for which it could sue; while Bosler’s right of action was perfect before his death. But at the moment of his death the law took possession of his estate for the benefit of his creditors, he being insolvent. It was not the case of a mere voluntary transfer; but new rights sprung into being, on the instant of his death. At his death the debts did not ipso facto cancel each other, for the reason that the bank had no immediate right of action. Consequently when the estate by operation of law passed into legal administration, and was in gremio legis, the rights of creditors immediately attached, and the estate being insolvent, equity demanded equality among the creditors of the same class. Hence the right of the bank as a creditor was to a pro rata only. But a voluntary assignment has no such effect. It does not alter the status of the rights of the creditors, as death does of the decedent’s estate. It is true the duties and obligations of the -assignees are regulated by law, but the transmission of the estate to them is the merely voluntary act of the debtor, who cannot impair the rights of creditors which had attached before his act. We discover no error in the record and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Myers versus Nell et al.

    1. Two of the three makers of a note consented to a material alteration thereof after its execution. Judgment hy default was obtained against the non-consenting maker. In a suit by the holder of the note against the consenting parties, Held, that evidence of their consent to the alteration was admissible, provided the holder had no knowledge of the want of consent of the third maker.
    2. To show that the note as altered was what it should have been originally it was competent to prove a declaration made by the non-consenting maker that if the note had been properly drawn at first there would have been no trouble.
    3. Suit was originally brought against the three makers on the joint note. One only was served, against whom judgment by default was obtained. Subsequently the plaintiff issued an alias and pluries summons in the same suit against the other defendants, who appeared and made defence. Held, that these proceedings were irregular as the Act of 1830 does not contemplate a continuance of the original suit against the defendants on whom the original process had not been served.
    May 23d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Adams county: Of May Term 1877, No. 13.
    Debt by Moses Myers against the makers of the following note :
    “ $266. May 13th 1872.
    “ Ten months after date we promise to pay to the order of Moses Myers, two hundred and sixty-six dollars, without defalcation, for value received, with interest from date, and without relief from the Homestead Exemption Law.
    William Nell. seal.]
    Jacob Nell. SEAL.]
    I-Ienry Nell. SEAL.] ’
    When the suit was brought, service was had upon William Nell only, as Jacob and Henry could not be found; and after a narr. filed, judgment was taken against William by default, for want of an appearance, for the amount of the note, with interest from date.
    Subsequently an alias and pluries summons in the original action were issued, and the latter served upon Jacob and Henry Nell, who thereupon made defence, and a trial resulted in a verdict for plaintiff. A new trial was granted, and the plaintiff, who had in his original narr. declared upon the note for the principal with interest from date, then filed an additional count declaring for the principal without interest, except from the maturity of the note.
    On the trial before McClean, P. J., the note being offered in evidence, the defendants objected, for the reason that it had material alterations on the face of it, and the court sustained the objection because this manifest alteration was unexplained.
    The plaintiff then testified that the note had been received by him through the mail, and was in the same condition as when received by him. The note, under exception, was then admitted.
    Plaintiff then made the following offer:—
    “ To prove a meeting of plaintiff and defendants in Bragtown, in-the spring of 1872, at which the plaintiff was requested to release his judgment (against Kapp) from the property which William Nell had purchased, and that he should take a judgment-note upon Leander Ebersole for a portion of it, and a note from the defendants for the residue, and that he, Myers, should accept the note of the defendants in place of and to satisfy his judgment; to be followed by evidence that William Nell accompanied Myers to Elias Bushey’s, and left him there, saying he would get such a note ; that he procured Squire Ebersole to prepare the note, stating that he should include in it the amount of the judgment — that is, its principal, $250, and the interest thereon accrued from 1st April 1871 up to time of drawing note — the note to be paid before the 1st of April following, and therefore to be drawn at ten months ; that William Nell took the note, and returned with it signed by the defendants, and handed it to Elias Bushey, the agent of Kapp, to take with him. and go to Moses Myérs to get him to take it and release his judgment; that upon the note being offered to Myers he looked at it, stated it was not drawn with interest, that it ought to be drawn with interest from date, and refused to take it without, but said if they would consent to make it with interest he would take it and release bis judgment; he then returned home into York county; that Elias Bushey went with the note to Jacob Nell and Henry Nell, and they mutually consented that the words ‘with interest’ should be inserted, and thereupon Elias Bushey inserted the words ‘with interest from date,’ and enclosed and sent the note by mail to Moses Myers.”
    Objected to as irrelevant, being as to matter of consideration and not admissible, because assent of William Nell is not. offered to be shown to the insertion of the words.
    Evidence rejected, and exception by plaintiff.
    Plaintiff also offered, in connection with the above, to prove that William Nell said to Henry Harbold, since the last trial of the case, that “ if Ebersole had drawn the note right, there would have been none of this fuss.”
    Objection, evidence rejected, and exception by plaintiff.
    The court instructed the jury to find for the defendants, for the reason that the note, being a joint obligation, the assent of all the obligors to the alteration must be shown.
    The verdict was for the defendants, and plaintiff took this writ assigning the rejection of the foregoing evidence and the instruction of the court for error.

      D. McConaughy, for plaintiff in error.
    There are many cases in which the alteration of a note or writing without fraudulent intent has been treated as merely accidental spoliation, and therefore held not to affect the plaintiff: Henfree v. Bromley, 6 East 309 ; Raper v. Birbeck, 15 Id. 17 ; Cutts v. U. States, 1 Gall. 69; U. States v. Spalding, 2 Mason 478; Marshall v. Gougler, 10 S. & R. 164; Rees v. Overbaugh, 6 Cowen 746; Lewis v. Payn, 8 Id. 71; Jackson v. Malin, 15 Johns. 297.
    In Worrall v. Gheen, 3 Wright 388, where the maker of a note afterwards altered it to a larger amount, it was held that the holder was entitled to the true amount of the note against the endorser. In Byles on Bills 310, note 1, the doctrine is laid down that an alteration by a stranger, though material, will not render the instrument inoperative, and numerous American authorities sustain thiprinciple: Nichols v. Johnson, 10 Conn. 172; Medlin v. Platte County, 8 Mo. 235 ; Lubbering v. Kohlbrecher, 22 Id. 596 ; Ford v. Ford, 17 Pick. 418 ; Davis v. Carlisle, 7 Ala. 707; Waring v. Smyth, 2 Barb. Ch. 119 ; Lee v. Alexander, 9 B. Monroe 25.
    The evidence offered was to show that the note was not altered with any fraudulent intent or with the knowledge of plaintiff.

      R. G. McCreary, for defendants in error.
    The plaintiff having sued and declared upon a joint contract against three obligors, could not recover without proof of a joint contract binding all the defendants, and this notwithstanding the fact that one of the defendants (William Nell) had suffered judgment to be entered by default against him: 1 Chitty’s Pleading 44, 45; Shirreff v. Wilks, 1 East 52; Hannery v. Smith, 3 Term R. 662; Gray v. Palmer, 1 Esp. 135; Hickman v. Anderson, 2 Dana 223; Kimmel v. Shultz, Breese 128.
    The alteration was material and avoided the note, and the result does not depend in any wise upon the motive with which it was done: Miller v. Gilleland, 7 Harris 119; Getty v. Shearer, 8 Id. 12; Marshall v. Grougler, 10 S. & R. 168-9; Moore v. Bickham & Wert, 4 Binn. 1.
    June 26th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

Suit was originally brought against the three makers, on their joint note, payable to the order of the plaintiff. The summons was served on William Nell, the principal in the note, and judgment was entered against him by default for the full amount of the plaintiff’s claim. The two sureties were not served. The judgment against William was conclusive as to him, and while it remained unreversed he was not in a position to controvert his liability either as against the plaintiff or the sureties, in case they had discharged the debt and had been subrogated to the rights of the plaintiff. The plaintiff having failed to obtain satisfaction of his judgment against the principal, proceeded against the other two by an alias summons to August Term 1873, and a plumes to January Term 1874, which rvas served on the 26th December 1873. The defendants appeared and made defence that the note had been altered after its execution and without their knoAvledge or consent, by adding the Avords “with interest from date.”

The proceeding by alias and pluries summons was irregular. The Act of 1830 does not contemplate a continuance of the original suit against those on whom the original process has not been served. It provides that the judgment against those served “shall not be a bar to a recovery, in another suit, against the defendant or defendants not served with process.” The proceeding against Jacob and Henry is in the nature of an original suit by summons, instead of an alias summons. As was said by Mr. Justice Bell, in Wann v. Pattengale, 2 Harris 313, “ Suits brought under the Act of 1830 cannot be esteemed in the nature of secondary process under continuances of the original suit, for the reason that the statute contemplates a judgment in the first action before a second can be commenced.” The irregularity, however, is but slight and formal, and may be amended.

To meet the defence set up by the defendants, the plaintiff offered to show the circumstances under which the note was given; that it was the understanding of the parties that it should bear interest, and, when it was discovered that it Avas not so draAvn, the payee refused to accept it, and afterwards the words, “ AYith interest from date,” were added, with the full knowledge and consent of the defendants, and in this form it was returned to and accepted by the payee. The refusal of the court to receive evidence tending to prove these facts is assigned for error. We are of opinion that the evidence should have been received and submitted to the jury.

The claim of the plaintiff on the note as against William Nell, the principal, had been finally adjudicated; and if the evidence was sufficient to satisfy the jury that Jacob and Henry had both authorized the alteration, they were not in a position to complain. The plaintiff, under the additional count, was seeking to recover the face of the note with interest from its maturity, and the tendency of the evidence would have been to show that the additional words were not written by the plaintiff, nor by his direction, and that he accepted the note in satisfaction of the judgment for which it was given, under circumstances which induced him to believe that the alteration was made in good faith, with the knowledge and consent of all parties to be affected thereby. If this were so, he was entitled to recover at least the amount of the note as originally drawn.

Judgment reversed, and venire facias de novo awarded.


text:
    Washington Mutual Fire Insurance Co. versus Rosenberger, Light & Co.
    1. Where a member of a mutual insurance company was in default for the non-payment of an assessment, he cannot demand payment of a loss which occurred during such default.
    2. The neglect to pay an assessment has the effect of suspending the protection of the policy until the default is removed; upon payment of the assessment and acceptance by the company before loss, the policy revives in full vigor.
    3. Although a company may show indulgence to its members and be in the habit of receiving assessments after they are due, such conduct furnishes no excuse for non-payment, and is entirely consistent with the fact that while the default of a member continues, the protection of his policy is suspended.
    May 23d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Lebanon county: Of May Term 1877, No. 165.
    Debt by Rosenberger, Light & Co. against the Washington Mutifal Eire Insurance Company upon a policy, dated April 4th 1868, insuring in the sum of $5200 the foundry, outshops and machinery of the plaintiffs.
    At the trial, before Henderson, A. L. J., the plaintiffs gave in evidence the application and policy and proceeded to prove the loss, the demand for the insurance money and the refusal of the company to 'pay the same. This refusal the company averred was on the ground that an assessment had been laid upon tlio policy which was unpaid at the time the property was burned and still remained unpaid, and the plaintiffs having admitted these'facts the defendant asked for a nonsuit which the court refused.
    On behalf of the defence the following facts were then disclosed:—
    The defendant company was incorporated by Act of Assembly April 2d 1868, Pamph. L. 769.
    The fourth section of the act provides that all persons insured shall be members in accordance with its by-laws during the period for which they shall remain insured and no longer.
    The tenth by-law was :—
    “ AH assessments must be paid within sixty days after the occurrence of a fire. In case of refusal, or neglect to pay an assessment after the time specified, the person so refusing or neglecting, shall forfeit his policy and immediately cease being a member of this company. Provided, nevertheless, the said assessment on such defaulting member may be recovered by suit.”
    The application contained this clause: “For value received * * * I promise to pay the said company such sum or sums of money, and at such time' or times as the board of managers * * * may, for the purpose of paying losses by fire, &e., of said company, require — payable sixty days after notice and demand.”
    And also the following : “ It is agreed, if the company so elect, that by returning the aj)plieation of insurance, after giving due notice of the intention so to do, the insurance shall henceforth cease.”
    An assessment known as “ No." 5,” was made and notice thereof as follows sent to plaintiffs which they admitted was received.
    “ Lebanon, Pa., August 1st 1871.
    Mr.--. You are hereby notified that the Board of Managers of the company, has by resolution laid assessment No. 5, and that the amount assessed in your insurance in this company is $-, which you are requested to pay to J. PI. Miller, appointed receiver on-, the-day of September 1871, at the public house of--, in--, Lebanon county, Pa., between the hours of — and — o’clock.
    “, On all assessments not paid before the 1st of November next ten per cent, will be added and the insurance suspended until payment thereof is made.
    Signed Jacob Weidle, President.
    J. IP. Miller, Secretary.”
    The latter paragraph of this notice, it appeared was inserted by the secretary of the company without any authority from the company. This seemed to have been the only notice given to the plaintiffs.
    The property of the plaintiffs was burned on-the 27th of January 1872, and a day or two thereafter the plaintiffs 'offered to pay the assessment, which was refused by the secretary of the company on the ground that the policy was “forfeited or suspended.”
    Plaintiffs then alleged a waiver of the condition contained in by law No. 10, and offered to show that the company in its transactions with plaintiffs and other members previous to this fire treated said by law as a dead letter; that it was never enforced and prompt payments of assessments were never insisted upon ; that the plaintiffs called within a day or two after the fire and offered to pay assessment No. 5, which was refused; that the minutes of the company in evidence showed that it was the custom of the company to receive assessments from members after the time designated for their payment, as was seen by the fact that a penalty was fixed to pay for the collection of the same and that extensions had been granted for the payment of said assessments; that by an extract it would appear that on the 6th of January 1872, a collector was appointed to collect outstanding assessments, who was to collect ten per cent, from those in arrears for his services and who was to notify any members who refused to pay that their policies would be cancelled after the 15th of February following, and the outstanding assessments collected by law, and that at the time of the passage of this resolution of the 6th of January a number of members had not paid assessment No. 5, and that they afterwards came in and paid it and their policies continued and forfeiture was waived.
    The evidence under these offers was, in the main, admitted under objection, and exceptions were taken thereto.
    It was not shown that the notice required by the resolution of the 6th of January was given to plaintiffs.
    The plaintiffs presented a number of points, which in effect embraced these propositions : that the notices, resolutions and general conduct of the company towards those who neglected to pay assessments, showed that the company was not in the habit of enforcing the tenth by law, and that it was practically a dead letter; and secondly, that the failure of the company to declare the forfeiture of the plaintiff’s policy, as well as those of other delinquents, taken in connection with the notices and other acts of the company, misled the plaintiffs and induced them to believe that the prompt payment of assessments was not required, and that they were thereby lulled into a false security, and that the company was consequently estopped from setting up the tenth by law as a bar to plaintiff’s recovery.
    The points of defendant, in substance, were: that the contract of insurance between plaintiffs and defendant was one of mutuality, and aside from the tenth by law,' required the plaintiffs to pay, within the time specified, a lawful assessment for the loss of a co-member, as a condition precedent to recovery; that upon a neglect to pay an assessment when due, the relations of the parties are severed at the time of the loss ; that the assured were all members of the company, and acquainted with the mutual rights and liabilities under the charter and by laws, and that no act of the officers of the company could therefore mislead them ; and that in a mutual company the members are the agents of each other, and waiver cannot be predicated, and there was therefore no evidence to excuse the default of the plaintiffs.
    The court gave specific answers to these points of plaintiffs and defendant, the substance of which is contained in the following1 portion of the general charge :—
    “ Has this law, this tenth section of the by laws, become a dead letter by reason of its non-enforcement ? It is true there is no evidence that it was ever repealed or rescinded; but it does appear from the minutes, by the resolution and action of the board, both prior and subsequent to the plaintiffs becoming members, that it has not been enforced. And this is confirmed by the testimony of the secretary, who declares the fact that it was almost, if not altogether, the uniform practice of the company to ignore the existence o'f this article of the by laws.
    “ The action of the company must be uniform and just to all of its members. Besides this the article in question is in direct conflict with the terms of the contract of insurance. The contract was that they would come in, and must pay within sixty days after notice and demand. That is the measure of the rights and duties of the insured in the company. Now, while we are of the opinion that the company has the power to make by laws for the regulation of its affairs and the government of its members, and prescribe a course of forfeiture, yet we say to you that this 10th article of the by laws is not operative on this policy of insurance; that the contract of insurance contains terms substantially different, and is the measure of the rights, duties and responsibilities of the parties to it, and that the article does not stand in the way of plaintiffs' recovery in this action.
    “We instruct you that the plaintiff cannot recover the amount of his loss unless he has complied with his part of this agreement or excused his want of performance. In other words, he cannot enforce the performance of the contract in the policy and at the same time neglect or refuse to pay its consideration.
    “ Was there anything in the conduct of the Washington Mutual Eire Insurance Company, on the part of the company, was there anything done or spoken by its officers, or those having authority to speak for the company, that misled this plaintiff into the danger which threatened him at the time ? If there was, search the evidence closely, and you must be satisfied of that fact before you can find for the plaintiff. Was there anything shown that satisfied you that the plaintiffs were lulled into security, or misled to their injury by the defendants, so as to induce them to delay payment and rely upon an extension of time ? If you are satisfied from the evidence that the plaintiffs were thus misled, your verdict must be in their favor; otherwise, if you come to the conclusion that plaintiffs neglected to pay their assessment, were in default through their own negligence, the tender after the fire was too late, and you should find for defendants.
    “ They could not be misled by anything that occurred after the fire, and nothing could affect it at the time except an agreement on the part of the company. You must look to the evidence prior to that; was there anything done on the part of the company within the knowledge of the plaintiffs that induced them to rely on the action of the company; that misled them into the belief that it was not necessary to pay their assessment as they had stipulated in the terms of insurance ?
    “ The whole question, we think, turns upon this clause of the policy or contract of insurance. The section of the by laws has nothing at all to do with this case. So that you must take the contract or agreement on the part of the plaintiffs to pay their assessments within sixty days after notice and demand as the measure of their duties, and unless they were excused from the payment by the action of the company they cannot recover on this policy.”
    The verdict was for the plaintiffs for ¡§6641.25.
    After judgment the defendant took this Avrit, its assignments of error numbering tAventy-three, among Avhich were a number to the admission of the foregoing evidence, the answers to the points and the portions of the charge quoted.

      C. P. Miller, A. R. Boughter and William M. Derr, for plaintiff in error.
    A mutual insurance company having in view the especial benefit of its members, depends entirely upon reciprocation, for mutuality is its very foundation. One Avho refuses to pay his assessment while in default is not a member, and his refusal to contribute absolves other members from liability to him. Delinquency works a suspension or forfeiture of the right to compensation for a loss during such delinquency and they cannot be AYaived by the company.

      Josidh Runde, for defendants in error.
    October 1st 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

In consideration of the policy of insurance issued to the plaintiffs below, they promised to pay, Avithin sixty days after notice, on demand, such assessments as might be required to pay losses by fire and expenses. In April 1871 an assessment, knoAvn as No. 5, Avas duly made and notice thereof given to them, but they neglected to pay it. The property covered by the policy was destroyed on the 27th January 1872, and two days thereafter an offer was made to pay the assessment, which w'as declined by the company, on the ground that it had not been paid within the required time, and, in consequence thereof, the policy was not in force when the property was destroyed. The jury was instructed that the plaintiffs could not recover unless the failure to perform their part of the contract was excused by the action of the company. In concluding his charge, the learned judge says: The only question is, whether or not there was a misleading of the plaintiffs by the conduct and actions of the defendant company, as evidenced by their resolutions, their notices, and by their general practices, as proved by their minutes and the evidence of the secretary. If you find that the plaintiffs were misled to their injury, it excuses them, and they would be entitled to recover. Otherwise the verdict should be for the defendant.”

Several of the numerous assignments of error relate to the admission of testimony, introduced for the purpose of showing that the insured were excused in the non-payment of the assessment, and others relate to the sufficiency or legal effect of the evidence; and it is claimed that there was error in refusing to instruct the jury that there was no sufficient evidence to excuse the nonpayment. It is unnecessary to consider the assignments in detail. If the evidence was insufficient, the jury should have been so instructed, in accordance with the points to that effect submitted by the counsel to the company.

The consideration for the insurance was that the defendants in error would pay, within the time stipulated, their share of the losses sustained by their fellow members. The mutuality of the contract required them to perform their part before they could demand performance by the company. 'While they were in default in the payment of their assessments they had no standing to demand payment of their own loss. This principle lies at the very bottom of the relation existing between such associations and their individual members. By the express terms of the contract the company had the right to cancel the policy, and thus terminate the contract relation, upon giving notice to the insured; but it is not claimed that this was done. Without any action on the part of the company, however, the neglect to pay the assessment had the effect of suspending the protection of the policy until the default was removed. Upon the payment of the assessment the policy would .have revived in its full vigor; but it was never paid or even tendered until after the fire; and as delinquent policy holders they had no right to maintain the action without showing that the default was either waived or excused by the company. There is no evidence of waiver, nor do we think there is any evidence to excuse the default. There was considerable testimony showing that great indulgence was extended to delinquent members, and that the company was accustomed to receive assessments long after they were clue ; but this is entirely consistent with the fact that while the default continued the protection of the policy was suspended. It is claimed that the action of the company in issuing notices and informing members that a penalty would be exacted if assessments were not paid by a certain time, was calculated to mislead and induce them to believe that by submitting to the penalty they might pay when it suited their convenience, and in the meantime their policies would continue in full force. This is a mistaken view of the subject. Whether the company had authority to impose penalties or not, the notices could furnish no excuse for non-payment. They contained no intimation of any change or modification of the .contract. On the contrary, they were calculated to remind members of the necessity of payment, and warn delinquents of their default. The resolution of January 1872, appointing a collector and directing notice to be given that the policies of all who neglected to pay would be cancelled after the 15th February following, &c., could not possibly mislead any one. Assessment No. 5 was then long past due, and as a consequence of the default the protection of the policy was then suspended. The resolution was designed to give notice, that unless the default was removed by the date mentioned the policy would be cancelled. Instead of extending indulgence, this was urging payment. But the resolution never went into effect; and inasmuch as the insured had no notice of it, they could not be prejudiced, even if it had been calculated to mislead. If -there had been any testimony to show that the company had ever recognised its liability, or paid losses that occurred while the assessments were over-due and the protection of the policy suspended in consequence thereof, there might be some reason for claiming that such action on the part of the company was calculated to mislead members who were cognizant of the fact; but nothing of the kind was shown. While it is evident that the company was indulgent, it is equally clear that they endeavored to collect over-due assessments in a manner that was not calculated to waive any of their rights, or mislead any of the members to their injury. We see nothing in the testimony to excuse the default of the defendants in error in not paying the assessment according to the terms of their contract, or to justify the court in submitting the question to the jury.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Sharswood

text:
    Appeal of the Harrisburg National Bank.
    Where a fund is deposited in hank to the joint credit of a resident administrator of a decedent and a foreign guardian of the minor children of said decedent, the Orphans’ Court has no jurisdiction to determine the ownership of the fund in a proceeding to which- the foreign guardian is not a party, although he has notice of the same.
    May 23d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Dauphin county: Of May Term 1877, No. 201.
    Appeal of the Harrisburg National Bank from the decree of the court confirming the report of the auditor appointed to take testimony and report upon exceptions to the account of A. O. Hiester, administrator of Dr. R. Ross Roberts, deceased, which exceptions alleged that said administrator had failed to collect and charge himself with the amount of a policy of insurance upon the life of the decedent.
    The facts were these:—
    In February 1870, Dr. Roberts effected an insurance upon his life in the sum of $10,000, in the Manhattan Life Insurance Com pany of New York. The insurance was to be paid to his executors, administrators or assigns, within ninety days of the notice and satisfactory evidence of his death. On the 9th day of May 1871, Dr. Roberts assigned this policy to Messrs. Dougherty Bros. & Co., bankers, as collateral security for certain loans then made and to be made to him. Although the assignment was upon its face an absolute one, transferring to the assignees the title to the whole sum secured by the policy, the testimony of D. W. Seiler, a member of the banking firm, showed that it was designed by both parties simply as collateral security for advances theretofore made and to be made in the future to the decedent". Notice of the assignment was given by the assignee to the insurance company on the 17th of May 1871, and accepted by the company. Dr. Roberts died in April 1875, and about the 17th of the following August, Messrs. Dougherty Bros & Co., received from the insurance company the sum of $9339.33, which was the amount due on the policy, after deducting certain unpaid premium notes. The amount due to the banking firm by Dr. Roberts, at the time of his death, and for which they held the policy as collateral, was $2087.55, which being retained by them, left in their hands a balance of $7251.78, which constitutes the fund in dispute in this case, the administrator having failed to charge himself with it as so much of the assets of the estate.
    Some time after the death of Dr. Roberts, his father-in-law, the Hon. Samuel A. Foot, of Geneva, New Yoi’k, was appointed by the Surrogate Court of Ontario county, in that state, guardian of decedent’s minor children, they having before that time become residents of that county, where they still reside. In August 1875, the administrator, with his counsel, called at the banking house of Messrs. Dougherty Bros. & Co., to inquire about the life insurance policy, and were shown the assignment already referred to. At that time the assignees declined to say what they would do with the balance which remained in their hands, after paying their advancements, but said they would consult their counsel and let the administrator know their decision. In September following Judge Foot, the guardian, came on to Harrisburg, and seems to have claimed the fund from the assignees, for Judge Hiester testifies that he told him he had seen the Messrs. Dougherty Bros. & Co., and they had promised to pay him over the whole of the money if he would give them an indemnity. This being the position of affairs, the following agreement was entered into.
    “We, the subscribers, have this day deposited, to our joint credit in The Harrisburg National Bank, the sum of $7251.78, which we have agreed on compromise, ought, in our opinion, to be equally divided between us, as representatives of the creditors and children of R. Ross Roberts, deceased; and that we will ask Judge Pearson for an order approving such compromise and division, or such other division thereof as he with a full knowledge of the facts shall deem just. But in case he declines approving such compromise and division, or any other division thereof, that he shall then decide to which of the parties hereto the whole sum belongs ; it’being the fund arising from a policy of insurance upon the life of R. Ross Roberts, deceased, and assigned by him absolutely to Dougherty Bros. & Go., and which they claimed the right, under the assignment, of transferring to the children of R. Ross Roberts, deceased, and if they have the right to make such transfer, it shall be deemed to have been made.”
    This agreement was signed by the administrator and Judge Foot, a joint receipt and release given to them by the Messrs. Dougherty Bros. & Go., and the money paid over to them and deposited to their joint order in The Harrisburg National Bank, where it still remains. On the 8th of September 1875, a petition was signed by the administrator and the guardian, and presented to the Hon. John J. Pearson, President Judge, with a view of having him act upon the agreement already made, approve the compromise, if he deemed it legal, and if not, to decide to whom the fund belonged. Judge Pearson declined to accept the position of arbitrator between the parties. . Subsequently a petition was presented to the Court of Common Pleas of Dauphin county, sitting in equity, and after hearing, dismissed by the court on the ground that they had no jurisdiction. On an appeal taken by the guardian, the Supreme Court affirmed the decision of the court below.
    The administrator then filed his account but did not charge himself with the fund in bank. He however called the attention of the court to the sum and asked them to determine whether it belonged to the administrator or the guardian of the minor children.
    Exceptions were filed to this account by certain creditors of the decedent when it was referred to an auditor. The notice sent by the auditor to Judge Foot was returned by the latter with an endorsement thereon that he refused to receive or recognise it in any way.
    The auditor reported that the said sum of $7251.78 was a part of decedent’s estate, belonged to his creditors, and should have been paid over to the administrator, he having no right to agree that any portion of it should be paid to the guardian until all the debts due by his decedent should be discharged.
    He accordingly recommended that a decree be made by the court surcharging the administrator with the amount of said balance or sum of $7251.78, without interest, and that the 'Harrisburg National Bank be ordered to pay the said sum into the Orphans’ Court, to be distributed by the court among .the parties entitled thereto.
    The bank excepted to this report on the ground that the court had no jurisdiction over said moneys sufficient to protect the bank from suits and demands by the depositors in case it should pay over said moneys.
    The court, Pearson, P. J., overruled the exceptions, confirmed the report and made a decree adjudging the fund to belong to the administrator and making this further order:—
    “ That the Harrisburg National Bank pay the said money so deposited as aforesaid into this court, and that upon such payment the said bank be discharged from all further liability to Samuel A. Foot, guardian, or to any other claimant of the same or any part thereof; and'further order and decree that, upon payment of said money.into court, the same be paid over to the said, administrator for distribution according to law.”
    From this decree this appeal was taken.

      Fleming McGarrell, for appellant.
    Has the court jurisdiction to require the bank to pay into court money deposited by and in the name of another party ? or can it afford protection to the bank against said depositor, in case it pays over the money as commanded ?
    Judge Foot, the guardian of decedent’s minor children, and one of the depositors of the fund, is, with his wards, a citizen of New York. The process of the state court will not run beyond our state limits. He has refused to accept or act under the notice alleged to' have been sent him by the auditor. His claim upon this fund has never been heard. It is true that the auditor and the court, upon the testimony submitted exparte^ find and decree that the fund deposited came from such a source as to make it the property of the estate. But non constat that if the guardian had been heard, or served with process from a court having jurisdiction over him, he might not have shown that the fund came from some other source. Can this guardian, having an undoubted right, as a citizen of another state, to prosecute his claim in the courts of the United States, be bound and his rights concluded by the decree of a tribunal to which he has never submitted himself, whose process cannot reach him, and which has never even heard his claim ?

      Robert L. Muench, for appellee.
    Judge Foot had notice, and there is no question from whence the fund on deposit arises. The bank is fully protected by the Act of 29th of March 1832, Pamph. L. 191, which provides that foreign guardians cannot interfere with the control of estates in this state without first giving security; and if this act does not apply, his refusal to recognise the authority of the court'would estop him. In the distribution of decedents' estates the Orphans’ Court has jurisdiction over all who have the custody of funds belonging thereto : Hammett’s. Appeal, 2 Norris 392.
    June 11th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

The court below undoubtedly had jurisdiction to surcharge the administrator with the money on deposit in' the Harrisburg National Bank, as part of the estate of R. Ross Roberts. Whether it was right, under the circumstances, to do so, is a question which is not before us on this appeal, and upon which, .therefore, no opinion is expressed.

But the decree below went much farther, and directed that “ the Harrisburg National Bank pay the said money,' so deposited as aforesaid, into this court, and that upon such payment the said bank be discharged from all further liability to Samuel A. Foot, guardian, or to any other claimant of the same or any part thereof; and further order and decree that, upon payment of said money into court, the same to be paid over to the said administrator for distribution according .to law.” We are of opinion that in this part of the decree the court transcended their power.

It appears that the fund in question was the balance of an insurance on his own life, effected by the decedent and made payable to him, his executors, administrators or assigns. He had assigned the policy, in his lifetime, to a firm, as collateral security for some indebtedness. They had received the amount from the insurance company, and after paying their debt there remained in their hands the sum of §7251.78. Claim was made to this balance by Samuel A. Foot, of Geneva, New York, who had been appointed by the Surrogate Court of Ontario county, in that state, guardian of decedent’s minor children, they having before that time become residents of that county, where they still reside. The administrator and guardian then joined in a receipt to the assignees, and deposited the amount in the Harrisburg National Bank to their joint credit. They made an agreement of compromise by which the money was to be divided between them, provided Judge Pearson would approve of such compromise, or such other division thereof as he, with a full knowledge of the facts, should deem just. Judge Pearson very properly declined to approve the compromise or act as referee. Thus the matter stood when the administrator filed his account in the court below. The agreement of compromise and reference having failed of effect,- the appellants are liable to pay this money to whoever is in law entitled to receive it. It may be very clear that under the laws of Pennsylvania this fund belongs to the administrator. If so, it is simply a debt due to the estate. But what Act of Assembly has given the Orphans’ Court jurisdiction to determine that question, and order the debtor to pay the administrator or to pay into court — an order, of course, to be enforced by attachment or execution ? The foreign guardian could not be brought in as a party by a simple notice, and the rights of the minor children be concluded by a decree against him. As a foreign guardian he had no power in this state; but a guardian may hereafter be appointed here, who would have. What power then had the court to decree that upon payment into court the bank should “be discharged from all further liability to Samuel A. Foot, guardian, or to any other claimant of the same or any part thereof?” Even if the claimant of the fund had been a resident of Dauphin county, he could not have been made a party to this proceeding and his claim disposed of in this summary way. He would have had a right to a common-law action and to a trial by jury. On what grounds the claim is made on behalf of the minor children we do not know. It would be dangerous, without hearing their side, to come to the conclusion that it is without foundation. This insurance was effected in the Manhattan Life Insurance Company of the city of NeAV York. Neither the policy, nor the charter of that company, nor the laws of the state of New York on the subject of life insurance, were produced, as far as appears, in the coui’t below. It is very clear to us that, if a guardian properly appointed under the laws of this state should hereafter bring an action against the appellants and establish the right of the minor children to this. money, this order and decree of the Orphans Court Avould be no bar to a recovery. It may be readily conceded, as the learned auditor below argued, that the Orphans’ Court has all the power of a court of equity in regard to matters clearly Avithin its jurisdiction. But the question recurs, was this a matter clearly within its jurisdiction ? In the settlement of the administrator’s account, they certainly could decide that this was an asset of the estate which the administrator ought to have collected, and if he had negligently lost it, could surcharge him with the amount. But surely they could not cite the debtor and enter a decree or judgment against him. That would be to draw into that court the trial and determination of all claims by decedents’ estates against third persons. It would hardly be pretended that, if the money had remained in the hands of the assignees who held the policy as a pledge, that such an order could have been made upon them. It is not perceived that the appellants stand in any other or worse position. They were in no sense parties to the proceeding in the court below. They did not, in answer to the notice they received from the auditor, appear before him. When notified of his finding against them they came in and excepted. This they had a right to do, to prevent an unwarrantable proceeding against them; but it did not involve them in a submission to the jurisdiction, for it was for the very purpose of taking exception to that jurisdiction.

So much of the decree of the Orphans’ Court as declares that the sum of $7251.78, held on deposit by the appellants, is a part of the estate of the aforesaid decedent, and as such legally belongs and is payable only to the aforesaid administrator, and therefore the court do further order and decree that the Harrisburg National Bank pay the said money so deposited as aforesaid into this court, and that upon such payment the said bank be discharged from all further liability to Samuel A. Foot, guardian, or to any other claimant of the same or any part thereof; and further order and decree that upon payment of said money into court the same be paid over to the said administrator for distribution according to law — be and the same is hereby reversed, and that the costs of this appeal be paid by the appellee from the estate of the decedent.


author: Per Curiam.

text:
    Shank versus The United Brethren Mutual Aid Society.
    Suicide is a question of intention, and where no direct evidence exists the question of intention is to be inferred from the circumstances and should be submitted to the jury.
    May 24th 1877.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Lebanon county: Of May Term 1877, No. 202.
    Debt by Christian II. Shank, administrator'd. b. n. of John E. George, deceased, to the use of Philip F. McCaully, against The United Brethren Mutual Aid Society of Pennsylvania, to recover the amount due on a policy or certificate of membership on the life of said John E. George, deceased.
    George, on the 23d of May 1871, had his life insured in the society for $1000, for the benefit of his wife Lizzie M. George, and subsequently paid all assessments to 31st of October 1873, at which time he and his wife assigned their right in said policy to McCaully, to whose use this suit is brought, and who paid all the subsequent assessments on the policy. The policy or certificate of membership contained a clause that the company would not be liable if the death was caused by suicide or was induced by immoralities, and the only defence was that George had committed suicide.
    At the trial before Henderson, A. L. J., it appeared that a short time before his death George walked into his garden where a man named Lehman was at work and talked as usual with him. The wife of George was also in the garden and after conversing a few minutes the deceased remarked that he was going up stairs to read the newspaper and went into the house. About three-quarters of an hour thereafter Mrs. George, who had meantime gone into the house and prepared supper, went up stairs to call her husband and found him stretched on his back across the bed, a pistol lying on his chest and another pistol lying below the pillows. The deceased had put on his wrapper and his slippers. A' physician was sent for who upon his arrival discovered the deceased to be dead. He found a small bullet hole about an inch above the right ear. One of the pistols was still loaded, but one barrel of the smaller one had been discharged, and the ball in' the wound corresponded with the size of the ball used in this pistol. The physician testified that it was plain that the pistol had been held against the head and discharged, because there were no grains of powder on the skin; nothing but a round black hole. There was nothing in the conduct of the deceased to indicate any intention to commit suicide and there was no known motive for the act.
    The plaintiff submitted the following points, to which are appended the answers of the court.
    1. That the mere fact of death in an unknown manner, and without evidence to show w'ho caused it, creates no legal presumption of suicide; upon evenly-balanced testimony the law assumes innocence rather than crime. Preponderating evidence, where the defence is suicide, is necessary to establish the fact, and without which the plaintiff is entitled to recover.
    Answer. “We answer this point in the affirmative, as we have already so answered in the general charge, submitting to you to determine whether or not it is sufficient to justify you in coming to the conclusion that George took his own life.”
    2. There being no evidence of the suicide of the said George in this case, except the fact that he. was found dead in his bed, with a gun-shot wound in his head, the plaintiff is entitled to recover, inasmuch as the defendant having failed to establish the fact that he, the said George, wilfully and deliberately took his own life.
    Answer. “ This point we answer in the affirmative, as a proposition of law, submitting to you the question of fact to be gathered from the entire evidence in the case. The plaintiff’s point refers to the fact that he was found dead in his bed with a gun-shot wound in his head. But you will also consider the manner in which he was found. The fact that he was found, in connection with the pistols, and the circumstances connected with the finding of them on the bed — in what way — the condition in which the pistols were when found. Take all this into consideration; we say it is for the jury to determine from all the evidence whether it was the act of a suicide or not. You must be satisfied that such Avas the fact, in order to justify you in finding in favor of the defendant; otherwise you will find in favor of the plaintiff; if you are not satisfied from all the evidence that the death was occasioned by suicide, then you Avill find in favor of the plaintiff.”
    3. There is no evidence to show that George took his own life, and, therefore, under the certificate as granted by the defendant, the plaintiff is entitled to recover.
    AnsAver. “We decline to answer this point as requested; but have submitted to you the entire evidence in the cause. If they have satisfied you that John E. George took his OAvn life, then the plaintiff cannot recover; otherwise he1 may recover upon the certificate of the defendant.”
    The verdict AATas for the defendant, and after judgment the plaintiff took this writ assigning for error, inter alia, the answers to the foregoing points.

      A. R. Boughter, for plaintiff in error.
    The mere fact of death in an unknoAvn manner creates no presumption of suicide; upon evenly balanced testimony the law assumes innocence rather than crime, and preponderating evidence is necessary to establish the latter: Continental Ins. Co. v. Delpeuch, 1 Norris 225.
    The burthen of proving suicide is upon the party who alleges it: Nimick v. Mutual Life Ins. Co., 10 Am. Law Reg. N. S. 101; Bliss on Life Insurance 624.
    In the absence of motive there was a strong presumption that the death was accidental and the evidence submitted should not have gone to the jury.

      John Benson, for defendant in error.
    It was for the jury to determine under the circumstances of this case whether the deceased had committed suicide : Wenrich & Co. v. Heffner, 2 Wright 207 ; Express Co. v. Wile, 14 P. F. Smith 201; McKee v. Bidwell, 24 P. F. Smith 218.

      June 4th 1877,
   The judgment of the Supreme Court was entered

Per Curiam.

Suicide is a question of intention to be inferred from the circumstances where' no direct evidence exists. The circumstances in this case were sufficient to go to the jury on this question. Indeed there was no other means of determining the intention of the alleged suicide.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Stuart et al. versus The Second Presbyterian Church.
    A verbal promise to pay a certain sum to reduce the debt of a church, on condition that “the whole amount be raised,” is not binding unless this condition has been performed, and cannot therefore be enforced against the estate of the subscriber after his decease.
    May 26th 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Common Pleas of Cumberland county: Of May Term 1877, No. 176.
    Case stated wherein the Second Presbyterian Church of Carlisle was plaintiff and Joseph A. Stuart and Abraham Bosler, executors of James Hamilton, deceased, were defendants.
    The facts as stated were these:—
    James Hamilton was a prominent communicant and member of the board of trustees of the Second Presbyterian Church of Carlisle, for forty years. He was one of its founders, and always took a deep interest in it. In the summer of 1870 the congregation of that church resolved to erect a new house of worship. It was completed in the early part of 1872, at an aggregate cost of about $45,000. To meet this expense three subscriptions were made by members of the congregation: one in 1870, one in 1871, and the other in 1872. In the first Mr. Hamilton gave $2000. On November 20th 1871, Mr. Hamilton made a will, in which he directed his executors to sell certain real estate in Carlisle, Pennsylvania, and to invest the proceeds of such sale in government bonds, or real estate security, and when the principal and interest amounted to a sum sufficient to pay off the indebtedness of the Second Presbyterian Church, with any other benefactions or contributions of others for the new church and lecture-room, to pay over the same to the trustees of said church. At that time the liabilities incurred by the church were about $24,000, and the real estate so devised was worth $7000.
    The second subscription referred to was made in December 1871, after the making of said will. On December 17th 1871, Mr. Hamilton made his subscription in the following terms :—

      I am willing to subscribe on the terms stated, $500, and as soon as $10,000 are subscribed, $500 additional, and when the full amount of our indebtedness is subscribed, $1000 additional.
    December 17th 1871. J. Hamilton.”
    $10,000 were subscribed, and Mr. Hamilton gave the additional $500, which has been paid in full. This subscription left the indebtedness of the church about $14,000.
    On September 9th 1872, at a meeting of the congregation, the third subscription was made upon the following terms, viz.: “We the undersigned, do hereby severally promise to pay the amounts set opposite our respective names, for the purpose of paying off the entire indebtedness of the Second Presbyterian Church of Carlisle, Pa., exclusive of upholstering and organ funds, any surplus, however, to be applied to those purposes; this subscription being on condition that the whole amount be raised.”
    Mr. Hamilton on that day verbally subscribed $1000, upon these terms, and his name was accordingly entered upon the subscription book for that amount.
    On the 11th September 1872 he wrote in that book the following offer, viz.: “ If Mr. W. S. Woods will make his promised additional subscription $2000 in the terms stated in that paper, I will do the same.
    September 11th 1872. ' J. Hamilton.”
    Mr. Woods failed to agree. The amount subscribed, including the $1000 of Mr. Hamilton, was about $7000, leaving a balance to raise, including the upholstering and organ funds, of about $7000. Mr. Hamilton regularly entered these subscriptions in his general account book, and the last mentioned subscription is there entered as follows, viz.: “4. Subscription contingent, $1000.”
    On January 10th 1873, Mr. Hamilton was asked to pay this subscription. With a full knowledge of the condition of the church’s affairs he promised to do so, if several other gentlemen would pay theirs. One other gentleman on that day paid $1000, his subscription on the Hamilton promise.
    On January 13th 1873, Mr. Hamilton made another will, in which he devised the same real estate devised by the will of November 20th 1871, to be sold by his executors, and the proceeds to be paid over to the trustees of said church, to pay off the church’s indebtedness, and directed that the said trustees should invest the surplus after paying the indebtedness, and apply the interest to the renting of pews in the church for its poor. Mr. Hamilton died on January 23d 1873. By the codicil to the last will it was made conditional upon his living until March 1st 1873. Having died before that time the courts decided that the will of 20th November 1871, was the operative disposition of his property in order to effectuate his intentions to preserve his charitable legacies. Both these testamentary papers, with the codicil, were proved and recorded in the register’s office of Cumberland county. The devises therein referred to above are made part of this case, as if fully set forth. The said real estate has been sold for $7000. This sum, with the amount of the third subscription, including the one of Mr. Hamilton for $1000, is required to pay off the indebtedness of the church. The other subscribers have treated the requisite amount as raised by this legacy from Mr. Hamilton and have paid or agreed to pay their several subscriptions. The question for the court is, Are Mr. Hamilton’s executors under these circumstances liable to pay the said sum of $1000 to the church, in addition to the proceeds of the real estate directed to be sold ?
    If the court should be of opinion that they are, then judgment to be entered in favor of the plaintiff for $1000 ; but if otherwise, then judgment to be entered for the defendants.
    The court, McLean, P. J., entered judgment for the plaintiff for $1000 and costs and the defendants took this writ, assigning this entry for error

      J. H. Graham & Son, for plaintiffs in error.
    The promise to pay was conditional and as the condition was not complied with during the lifetime of Mr. Hamilton, the promise was revoked by his death and cannot be enforced against his executors: Helfenstein’s Estate, 27 P. F. Smith 331; Phipps v. Jones, 8 Harris 263: Dodge v. Gardiner, 31 N. Y. 241.
    To raise the whole amount of the church debt was a condition precedent and there could be no recovery until the condition was performed: Berry v. Yates, 24 Barb. 199; Sandford v. Handy, 25 Wend. 475; Stewart v. Trustees of Hamilton College, 2 Denio 403; Phila. & West Chester Railroad Co. v. Hickman, 4 Casey 318.

      John Hays, for defendant in error.
    The verbal subscription was supported by a sufficient consideration and is binding: Ryers v. Blossburg Congregation, 9 Casey 115; Caul v. Gibson, 3 Barr 417.
    June 11th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

The subscription of Mr. Hamilton, made on the ninth day of June 1872 was conditional. The debt of the church at that time was about $14,000. Mr. Hamilton verbally subscribed $1000 on condition that “ the whole amount be raised.” It never was raised. On January 10th 1873 $7000 of the $14,000 had been subscribed. This included Mr. Hamilton’s subscription. On that day he was asked to pay this $1000. He said he would do so “ if several other gentlemen would pay theirs.” One only of them paid. Thus the matter stood at the time of Mr. Hamilton’s death. His executors are now called upon by the cburcb to pay this subscription. The court below gave judgment against them upon the case stated. This was error. The subscription was not binding upon Mr. Hamilton during his lifetime; as we have before said it was conditional; the subsequent promise to pay was conditional; the condition had never been performed. It was nudum pactum and imposed no liability upon Mr. Hamilton’s personal representatives after his death. It may be that he would have paid this $1000 had he lived. We .are not to interpret this subscription by what he might have done had his life been spared; nor by what the members of the church may think he intended to do. We must look only at what he contracted to do. We find no binding contract to pay. We are dealing with the subscription of a dead man; one too who appears to have been very generous to this church in his lifetime, and gave it a munificent donation by his will. But the law in distributing his estate knows nothing of generosity. It merely protects and enforces the legal rights of parties. It is our duty to see that no injustice is done to Mr. Hamilton’s estate. It was strongly urged upon the argument that the devise in Mr. Hamilton’s will in favor of the church fulfilled the condition of the subscription and made his estate liable. We are unable to see the force of this suggestion. The subscription -was to be good when the whole amount of the debt should be raised. Raised by whom ? Not certainly by himself. He was willing to contribute $1000 if other parties would contribute the residue of the debt. This is what the subscription meant. We need not enlarge upon this point. It is too plain.

The judgment is reversed, and judgment is ordered to be entered in favor of the defendants upon the case stated, with costs.


text:
    Miller’s Appeal. Ferguson’s Estate.
    1. AYhere an owner of land in ignorance of his title thereto, by a positive act induces a party to purchase said land from a third person, and the transaction on the part of all concerned is in good faith, he cannot afterwards, when he discovers his true title, set it up. against the purchaser.
    2. AYhere an executor with power to sell under a will by mistake sells certain land, the owner of which in ignorance of his right suffers the executor to make the sale and acts in a manner to work an estoppel, the proceeds of the sale belong to the owner and the executor cannot, as such, be charged therewith in his account.
    May 26th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Cumberland county: Of May Term 1877, No. 210.

      Appeal of James D. Miller, executor of David Ferguson, deceased, from the decree of the court confirming the report of the auditor, to whom had been referred the account of said executor. From the facts found by the auditor, F. E. Reltzhoover, it appeared that David Ferguson, who died in August 1872, was in his lifetime seised in severalty of a small tract of mountain land, and that he and his wife, Mary, were seised in entirety of a farm consisting of about 54 acres. He left surviving him his wife and three children and by his will gave his estate to his wife during life and after,her death to his children. James D. Miller, his son-in-law, was made executor and clothed with power to sell the real estate. In 1878 the widow and the executor contracted to sell and convey the two tracts of land to Daniel V. Ahl. Believing that the estate of David Ferguson still owned one-half the land which had been held jointly by the deceased and his wife, and ignorant of the fact that the wife was entitled to the whole tract by reason of survivorship, and acting under the advice of a county justice of the peace, the executor and the widow executed separate deeds, prepared by said justice, the deed of the widow conveying to Ahl an individual half in the farm for $952, and the deed of the executor conveying to him the mountain land and the other individual half for $1048, the mountain land being valued at $88.
    The widow died.in April 1875 and by her will gave all of her estate to James D. Miller and his wife. When Miller was about to file his account he was for the first time advised that the joint estate of the testator and wife, survived by the husband’s death to the wife and that the whole proceeds of the sale of the farm belonged to the wife’s estate. He accordingly filed an account in 'which he charged himself only with the assets of the estate of David Ferguson and did not include the proceeds of the sale of the undivided interest in the farm.
    Two of the children and devisees of David Ferguson contended that the executor ought to be surcharged with these proceeds, and the auditor, while he admitted that the wife became seised of the whole tract as the survivor of her husband, nevertheless, reported that he should be surcharged with the consideration money he received as executor of David Ferguson on two grounds, first, because he received, held and invested this money as executor, and was bound to account to the heirs for it and could not of his o.wn motion determine that this money which he received in his official capacity as the executor of one person should be handed over to the estate of another, and, second, that the wife could certainly refuse to take more than half of the land, and could assent to the conveyance of the other half by her husband before his death or by his legal representative after-wards ; that the husband died in 1872 leaving a will directing that all his real estate should he enjoyed by his wife during life, and at her death go to his heirs, and that he certainly believed he owned one-half of the farm; that on the 11th of March 1873, the widow made her will wherein she gave Miller her estate ; that three days after, on the 14th of March 1873, she made the deed to Ahl; that she lived until 1875, and during that time made no claim for the money in the executor's hands and that from these acts and her conduct it was manifest the widow intended that an undivided one-half only in the farm should pass by her will, and that, therefore, those who claimed through the wife were estopped from coming in upon these proceeds.
    The exceptions filed to this report were dismissed and the report confirmed, from which decree this appeal was taken.

      A. B. Sharpe and Lemuel Todd, for appellant.
    The doctrine of estoppel does not apply to this case. If the contest were between Ahl and the executor and widow, or any one claiming under them against the purchaser, the doctrine might be invoked. The fact that Mrs. Ferguson was a party to the sale, and in ignorance of her own title, conveyed but an undivided moiety, and acquiesced in the conveyance by the executor of the other moiety would, doubtless, estop her and any one claiming through her, from contesting the title of the purchaser. But as between the two classes of legatees] the doctrine has no place. As the case stands, Mrs. Ferguson’s estate is taken from her legatees and given to the legatees of her husband, and the will of the latter substituted for that of the former.
    The court has jurisdiction still over the estates and the accounts of the executor and the fund is undistributed and they can apply the remedy. The executor should not be surcharged with moneys not belonging to his testator and this land was no part of the latter’s estate. The unauthorized sale by the executor could not change the ownership: Heacock v. Fly, 2 Harris 540, 542, 543; Story’s Eq. Jurisprudence, vol. 1, sect. 115 and note 2 and sect. 118; Gross v. Leber, 11 Wright 520-526; Hunt v. Rousmaniere’s Adm., 1 Peters 13-17 ; Same v. Same, 8 Wheat. 211; Champlin v. Laytin, 18 Wend. 407, 408; City of Philadelphia v. Cooke, 6 Casey 59; Ege v. Sidle, 3 Barr 115; Carson v. McFarland, 2 Rawle 118; Edgar v. Shields, 1 Grant 363.

      William Trickett and W. F. Sadler, for appellees.
    Ahl knew by his deed what he was purchasing. If he was ignorant of the legal effect of Ferguson’s death as to the title, his ignorance of the law will not avail him, and he cannot recover back the money from Miller : Savings Institution v. Linder, 24 P. F. Smith 371. Mary Ferguson’s estate cannot claim the fund, for she conveyed only the one undivided half, and did nothing to estop herself or heirs from claiming the other half, and they may recover from Ahl in ejectment. The truth concerning the title was open to Ahl as well as to Mary Ferguson, and when both have the means of knowledge there can be no estoppel: Commonwealth v. Moltz, 10 Barr 531; Hill v. Epley, 7 Casey 331.
    When the truth appears by the same deed or record, which would otherwise work an estoppel, the adverse party is not concluded from taking advantage of the truth : Sinclair v. Jackson, 8 Cowen 586; Warren v. Leland, 2 Barb. 621; Co. Lit. 352-3. The utmost that can be made out of the evidence is that Mary A. Ferguson was silent concerning her title. But silence will estop only when it is fraudulent: Robinson v. Justice et al., 2 P. & W. 23; Hill v. Epley, 7 Casey 334; Lawrence v. Luhr, 15 P. F. Smith 241. There is no attempt to show any misrepresentation by Mary Ferguson, nor any inducement offered by her to Ahl to purchase the undivided half from Miller. In such case she, as the legal owner of the title to the undivided half which she did not convey, is not estopped from asserting it against another who has spent money to acquire it under a misapprehension of the law : Tyson v. Passmore, 2 Barr 125; Good v. Herr, 7 W. & S. 257; Peters v. Florence, 2 Wright 198. But even misrepresentations of the law, honestly made, do not estop the maker of them from asserting his title : Dungan, Trustee, v. American Life Insurance Company, 2 P. F. Smith 257; Lewis v. Jones, 4 B. & C. 509.
    The title of Mary Ferguson to the one half did not therefore pass to Ahl by estoppel, and it passed to her legatees. They are not therefore entitled to money which the executor of David Ferguson obtained. The purchase-money in the hands of the executor was not the price of their property, but that of a supposititious property of David Ferguson, and his estate was entitled thereto.
    June 18th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

From the report of the auditor we gather the following facts clearly stated though not found in a very orderly connection. David Ferguson, the testator, and his wife Mary A. Ferguson, were seised by a common conveyance of a tract of land in entirety, per my et per tout, which according to law at his death survived to her. David Ferguson made his will devising and bequeathing all his real and personal estate to his wife during life, and at her death to Mary Miller, Margaret Germon and Sarah Miller, and appointed James D. Miller the appellant executor, with power to sell and convey his real estate, and the auditor says he certainly believed he owned one half of the farm. Miller, his executor, and Mrs. Ferguson, acting upon this belief, “on the same day and at the same time” conveyed this tract of land to Daniel V. Ahl, who paid to each the sum of $952, as the price of the supposed, undivided half coming to each, the scrivener, John Zinn, certifying. that when the sale was made, he made each deed for the one undivided half because he considered the place belonged to both parties. The auditor says that “the executor of David Ferguson (Miller) believed he had the right to convey one-half of the farm and the widow also believed so and assented, and the conveyance was honestly made to Daniel Y. Ahl, and he paid the money.” Now these facts, the deeds being made as the auditor finds on the same day and at the same time, and with the assent of Mrs. Ferguson, and thus accepted by Ahl, who paid his money on the faith of the joint acts of the executor and the widow, prove conclusively, that Mrs. Ferguson led Ahl to believe that the title stood in the way the deeds indicated, and acting on this belief he paid one-half of the purchase-money to the executor. Such being the case Mrs. Ferguson would clearly be estopped from recovering the land from Ahl. It is a case not of mere silence by one ignorant of her rights, but one where the positive act of Mrs. Ferguson in uniting with the executor to make the sale, misled. “ True (says Gibson, C. J.), the title of a party who ignorantly encourages another to purchase will he postponed; not, however, for fraud, but for having occasioned a loss which must be borne by some one, and consequently by the author of it:” Paul v. Squibb, 2 Jones 290. So Huston, J., says: “ There is anpther rule equally well settled, where at the time of a sale the seller or any person present represents the title to be in a certain way, and it turns out not to be so, yet as against the person making the representation it shall be as represented:” 2 Penna. 277. In Buchanan v. Moore, 13 S. & R. 306, it is said by Gibson, J., “ If both were equally innocent a loss in consequence of the acts or declarations of the one ought not to be borne by the other.” The same doctrine is assorted in Lewis v. Carstairs, 5 W. & S. 209. The doctrine of estoppel is largely discussed by Bell, J., in Commonwealth v. Moltz, 10 Barr 527, wherein he states it as an established principle .“that in all cases where an act is done or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to it.” See also McKelvey v. Truby, 4 W. & S. 325. Without further citation the doctrine of estoppel by acts or declarations is well summed up by Justice Woodward in Beaupland v. McKean, 4 Casey 131. He says “ The rule is clear that mere silence will postpone only when silence was a fraud; and a fraudulent concealment of title cannot be imputed to one who was ignorant that he had any title to conceal, but positive acts stand on a different ground. For there his title may be postponed even without fraud, in accordance, with an equitable principle of universal application, that where a loss must necessarily fall on one of two innocent persons it shall be borne by him whose act occasioned it.” Now, it is clear that when Daniel Ahl honestly purchased as the auditor finds, from Mrs. Ferguson at the same time and place, with the executor of her husband, and each made a deed for the undivided half, she did an act which was declaratory of her husband’s title stronger than mere words; and when Ahl paid the money for her husband’s half with her assent, as the auditor finds, he did an act of decided injury to himself under the influence of her conduct, which must cause him a loss of f952, if she or her heirs are permitted to recover, the land from him. Nor is the conclusion weakened by the doctrine of caveat envptor, or that ignorance of the law excuses no' one. Caveat envptor carried to this length would destroy all estoppels, for generally the purchaser may always know the truth of his title 'if he tries, but it is because he is misled he does not try to ascertain it. Ahl, if he had not been misled by the conduct of Mrs. Ferguson and the executor, might have found out the nature of her' title, but there is no evidence he was aware of it. Husband and wife may hold as tenants in common by separate deeds, or by the precise terms of a conveyance as such. The legal effect of ignorance of the law cannot deprive him of the attitude of one actually misled by the conduct and representations of Mi’s. Ferguson. Ignorance of the law, in its effect, cannot operate without a knowledge of the facts on which the law arises, and his very reliance on the acts and representations of Mrs. Ferguson and the executor took from him an opportunity of knowledge, and it does not lie in their mouths to reproach him with ignorance of the law, or the maxim caveat emptor. Ahl, therefore, can hold the land, and the next question is can the executor withhold the money from Mrs. Ferguson or, since her death, from her executor ? Clearly not. Here the principle of estoppel which protected Ahl cannot be resorted to by the executor. He is not injured; he has paid nothing and lost nothing, but he has actually received that which Mrs. Ferguson suffered him to receive in ignorance of her rights,He and she rested on the same deed for title and so far as ignorance of the law is involved both stand on the same footing and. neither can assert the knowledge of the title to be greater in one than in the other. This position is well stated by C. J. Gibson in Paul v. Squibb, supra, a case of precisely similar character, where husband and wife held an estate of entirety as in this case and the husband’s supposed interest was sold at Orphans’ Court sale. Constructive knowledge (said he) of an undisclosed right is not enough to charge the party with concealment.” Again, “ She assented to a sale of her husband’s title, not her own; and the title she had was founded on a recondite principle of common law, which even a learned conveyancer might overlook. Every one is presumed to know the law; but the presumption is not strained so far as to charge him with an act of immorality, especially when the complainant had the same means of knowledge and was equally implicated. She was not bound therefore to protest against the sale at her peril.” Now, here no consideration passed from the executor, to the widow, no injury accrued to him or the estate in his hands ; both had equal opportunities of knowledge, and both were equally innocent, while both were misled by the act of the testator, who directed his real estate to be sold, and as the auditor finds, believed himself to be the owner of the undivided half of this estate. It is clear, therefore, that the executor received money belonging to Mrs. Ferguson, which she was not estopped from recovering, and which, therefore, he is bound to refund.

Now what have the auditor and court below done in this case ? They have surcharged him, as the executor of the husband, with the money of the wife, and from this decree he has appealed. Clearly he is entitled to be discharged of it, and the more especially as, being the executor of the wife also, he will be held to account to her estate for it. The husband’s estate is not entitled to the price of the wife’s land, and therefore the executor should not be charged with it. The wife’s estate is entitled to it, and therefore a decree should not stand which may lead to charging him twice with this money.

Decree of the Orphans’ Court is reversed, and the charge in the executor’s account of the sum of $952, the price of the undivided one half of the land owned by Mrs. Ferguson, is ordered to be struck out of his account; but as the executor, James D. Miller, has caused these proceedings by his own acts, he is ordered t'o pay the costs of the audit and of this appeal; and the record is ordered to be remitted; to carry this decree into effect.