author: by Sharswood, J.

text:
    Doebler’s Appeal. Biggs’s Appeal.
    1. A devise was to a wife, “ the use of my mansion-house during life should she remain my widow, hut should she marry again, then my mansion-house shall be my son’s.” “ I give to my son the block, &c.; * * also my mansion-house after my wife’s decease should she remain unmarried, as also the lot of ground, &c. * * But he shall in nowise sell or alienate any of-¡the property, as it is intended he shall have a life interest only in the same, with remainder over to his heirs in fee, * * and he shall in nowise come into possession * * until his twenty-second year.” The testator then ordered other estate to be sold and proceeded: “ It is my desire that what money there is over after paying my debts, shall be invested in real estate, the income from which my son shall receive during his life, and remainder over to his heirs in fee. * * I hereby devise that should my son die without heirs, or, before he becomes twenty-two years, * * all my property shall be disposed of, one-half to my sisters or to their heirs after them ; one-half to St. Paul’s Church,” &c. Held, that “ or" was to be construed “ and also that the son took a fee.
    2. This construction in such eases has been so conclusively settled as to be a landmark of the law not to be shaken.
    3. The devise over was to take effect only on a failure of the heirs of the first devisee dying before his arrival at twenty-two.
    4. Technical words are taken to be used according to their proper technical sense, unless the other parts of the will imperatively require otherwise.
    5. A particular intent must yield to a general, if both cannot consist together.
    6. The presumption that words of limitation in a will are used in their ordinary legal sense, is not to be overcome by other words, merely incongruous with such intention.
    7. If the intention be ascertained that the heirs are to take qua heirs, they must take by descent, and the inheritance vest in the ancestor.

      8. The rule in Shelly’s Case is never a means of discovering the intention ; it is applicable only after that has been discovered; it is then an unbending rule.
    9. If an estate to heirs be given as an immediate remainder after the freehold, it vests as an executed estate of inheritance in the ancestor; if after an interposed estate, it vests in him as a remainder.
    10. The testator cannot prevent this legal consequence by any declaration, however plain, of a contrary intention.
    11. Such would be an inconsistent subordinate intent which must be sacrificed to the paramount one.
    12. If the testator expressly declare that the rule shall not apply, that the devisee shall not sell or alienate, but shall have but a life estate, &c., this will not prevent the operation of the rule.
    13. No one can create what in law is a fee, and deprive the tenant of those essential rights and privileges which the law annexes to it.
    14. A court of equity will not compel a purchaser to accept a title which is in the least degree doubtful.
    15. Whenever the question is between a fee simple and fee tail, it is a wise precaution to provide by the decree that the deed shall be so executed as to bar the tail.
    January 24th 1870, at Philadelphia.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Appeals from the decree of the Court of Common Pleas of Columbia county: In Equity.
    On the 19th of April 1869, Elisha H. Biggs filed a hill against Charles H. Doebler for the specific performance of an agreement, dated August 21st 1868, by which the plaintiff covenanted to convey to the defendant a lot of land in Bloomsburg for the consideration of $3000, of which $100 was to be paid on the execution of the agreement, $400 on the 1st of October following, and the remainder in semi-annual payments of $500 each, with interest until all the purchase-money should be paid. Upon the defendant paying off the money due on the 1st of October 1868 and entering into bond and mortgage to secure the balance, the plaintiff was to deliver to him a good and sufiicient deed in fee simple. The hill set out that the plaintiff’s title was under the will of Elisha Biggs, deceased, who died seised of the premises in fee, leaving a widow and the plaintiff his only child. The will was proved July 7th 1851. After ordering the payment of his debts, &c., he provided as follows.:—
    “ 2. I give and bequeath to my wife, Margaret Biggs (in lieu of dower at common law or otherwise), the yearly sum of one hundred dollars, to be paid to her in quarterly payments during the term of her natural life, in each and every year, and after my debts are paid she shall have the additional sum of fifty dollars a year. I also direct and it is my wish, that should my son Elisha II. Biggs die without heirs, that she shall have an additional fifty dollars, if my debts are paid. I also give and devise to her the use of my family mansion-house during her life should she remain a widow, but should she marry again then my mansion-house shall be my son’s and she shall be entitled to receive the sum of fifty dollars a year during her life, instead of one hundred and fifty already mentioned, and should my son die without heirs she shall not be entitled to the additional fifty dollars, and my mansion-house shall go as hereafter devised.
    “ 3. I give and devise to my son, Elisha H. Biggs, the block known as the Exchange Building and the Old Arcade; beginning, &c. * * * I also give and devise to him my mansion-house after my wife’s decease, should she remain unmarried, as also the lot of ground immediately below it, containing about one-half acre, more or less. * * But he shall in nowise sell or alienate any of the above-described property, as it is intended that he shall have a life interest only in the same, with remainder over to his heirs in fee, subject to the payment of my debts, and subject also to the bequest to my wife, or any other bequests hereafter mentioned, and he shall in nowise come into possession of any of the above-described property until his twenty-second year.
    “ 4. I hereby direct my executors, hereafter mentioned, to rent my stores, &c. I also direct them to convey and sell all my real and personal estate undevised, &c., * * but should they be unable to sell the Exchange Hotel and store until my son attains his twenty-second year, he may retain them upon the same conditions as my other bequests already made to him, but should he not wish to have or to hold the same, then it is my wish and desire that they may be sold without reserve to the highest bidder, upon the most reasonable and easy conditions, within three years after my son attains his twenty-second year. * * * My son may become a purchaser of the hotel and store, should they not, when offered for sale, bring their full value, after he becomes twenty-two years old.
    “ 6. It is my desire that what money there is, if any, over and above paying my debts and other bequests and payments, when my son becomes twenty-two years old, or upon the sale of the hotel and store, should my son refuse to take or purchase it, shall be invested in real estate, the income from which my son shall receive during his life, and the remainder over to his heirs in fee, subject to the bequest to my wife.
    “ 7. It is my request, and I hereby devise, that should my son die without heirs, or before he becomes twenty-two years old, that all my property, after the payment of my debts, shall be disposed of as follows — one-half to my sisters or to their heirs after them; one-half to St. Paul’s Church, Bloomsburg, &c.” * *
    The widow elected not to take under the will. The plaintiff attained the age of twenty-two years on the 18th of November 1867 and on the 28th of September 1868, the widow of the testator released to him all her right of dower and interest in the premises. The bill averred that the defendant had paid $100 of the purchase-money and on the 1st of October 1868, the plaintiff tendered the defendant a deed in fee simple and possession of the premises, and demanded payment of the $400 then due and bonds and mortgage for the remaining payments; that the defendant refused to pay the $400 and give the bond and mortgage, alleging that the plaintiff held but a life estate and could not convey a title in fee simple. The plaintiff averred that under the will of the testator he was seised in fee simple of the premises.
    The prayer was, that the court would declare what estate the plaintiff took under the testator’s will and decree specific performance by the defendant, and if the court should be of opinion that the plaintiff took but an estate tail, that the defendant should accept such deed as the court shall direct to bar the entail, &c.
    The defendant answered, admitting the averments of the bill, except that the plaintiff had a fee simple, which he denied. He further answered, “ that he is willing that the court shall decree him to take the property and to pay the sums of money agreed to be paid, and to secure the money yet to become due, according to the terms of the said agreement, if the court are of opinion that the plaintiff can convey in fee simple.”
    The court, on the 24th day of June 1869, decreed that “ the plaintiff has such title to the land described in the bill of complaint as enables him fully to comply with and perform the agreement therein recited, and upon the plaintiff tendering to the said Charles H. Doebler, a proper conveyance according to said agreement, which conveyance shall be executed in such form as to dock any entail which may exist in said land, the defendant, Charles H. Doebler, to pay to the plaintiff the sum of $900 within ten days after such tender, and also to deliver to the plaintiff his bonds for further sums according to the said agreement,” &e.
    Each party appealed to the Supreme Court. The defendant assigned for error, that—
    “ The court erred in decreeing that the plaintiff below, Elisha H. Biggs, has such title to the land described in the bill of complaint as enables him fully to comply with and perform the agreement therein recited.”
    The plaintiff assigned for error, that—
    “ The court did not decree the estate of Elisha H. Biggs, the plaintiff, to be a fee simple; and that Charles H. Doebler, the defendant, should accept the deed tendered to him before suit brought.”

      O. B. Broohway, for Doebler.
    — The rule in Shelly’s Case does not operate where the testator’s intention is ascertained: Guthrie’s Appeal, 1 Wright 14; Miller v. Lynn, 7 Barr 444; Gernet v. Lynn, 7 Casey 94. The changing of words is proper only when the testator’s meaning is doubtful: 10 Bac. Abr. 539, 540; Engelfried v. Woelpart, 1 Yeates 45 ; Griffith v. Woodward, Id. 319. A gift for life cannot be enlarged into a fee by implication : Sheets’s Estate, 2 P. F. Smith 262; Cowles v. Cowles, 3 Id. 176. A condition not to alienate is bad as to a fee, but good as to an estate for life: Turner v. Fowler, 10 Watts 329. The intention of the testator must prevail, and each will is to be expounded according to its peculiar circumstances: Morrison v. Semple, 6 Binn. 97; Hauer v. Shitz, 3 Yeates 222; Fetrow’s Estate, 8 P. F. Smith 424.
    February 7th 1870,

      J. Gr. Freeze and J. W. Oomly, for Biggs.
    — Rule in Shelly’s Case, 1 Rep. 104 a, is the rule in Pennsylvania; Carter v. McMichael, 10 S. & R. 429 ; Paxson v. Lefferts, 3 Rawle 59; Hileman v. Bouslaugh, 1 Harris 344; George v. Morgan, 4 Id. 95; Roe v. Bedford, 4 M. & Selw. 362; Angle v. Brosius, 8 Wright 187; Seely v. Seely, 8 Id. 434; Curtis v. Longstreth, Id. 297; Nice’s Appeal, 14 Id. 143. When the intention requires, “ or” maybe changed to “and:” 2 Fearne on Cont. Rem. 97; Smith on Executory Interests, Ch. II. sec. 3, p. 235, &c., pl. 3; Holmes v. Holmes, 5 Binn. 253; Scott v. Price, 2 S. & R. 59; Beltzhoover v. Costen, 7 Barr 13.
   The opinion of the court was delivered,

by Sharswood, J.

— These are appeals by both parties from the decree of the court below upon a bill in equity to enforce the specific performance of a contract of sale, in which the only question presented is, whether the plaintiff had such a title to the premises as the defendant the purchaser could be compelled to accept. The plaintiff insists that he has a fee simple; the defendant that he has but a life estate. The learned court below thought, as it would seem, perhaps, that he had an estate tail, and decreed accordingly that the plaintiff should execute a conveyance in such form as to dock any entail which may exist in the land.

The testator devised his family mansion-house to his wife during her life, should she remain a widow, but should she marry again it was to be the plaintiff’s. He also devised to him the same with an adjoining lot after his wife’s decease, should she remain unmarried, adding thereto the following clause: “ But he shall in nowise sell or alienate any of the above described property, as it is intended that he shall have a life interest only in the same, with remainder over to his heirs in fee.” After several other directions, not material to be noticed, he provides: “ It is my request, and I hereby devise that should my son die without heirs, or before he becomes twenty-two years old, that all my property, after payment of my debts, shall be disposed of as follows, one-half to my sisters or to their heirs after them, one-half to St. Paul’s Church of Bloomsburg,” &c.

It will conduce best to a proper understanding of these provisions, to commence by an examination of the true construction of this devise over. It is unnecessary to consider now what the word “ heirs” means in this connection, because it is abundantly clear, both upon reason and authority, that the clause must be construed as if the conjunctive word “ and” were substituted for the disjunctive “ or” in the sentence. Upon reason : because, if it is construed disjunctively, the devisee, the testator’s only son, who was the first object of his bounty, might die under twenty-two leaving children, and those children would then be deprived of the estate. This is the literal and grammatical construction of the words as they stand. But this most assuredly the testator never intended. Upon authority: for the courts have uniformly, in wills containing exactly the same language, construed the word “ or” to mean “ and.” The English books are full of cases, but we need not look beyond the decisions in this state. The question arose and was argued by the most able and eminent counsel of their day in Hauer’s Lessee v. Shitz, 3 Yeates 205, and the Supreme Court gave effect to the devise according to its literal construction. But this judgment was removed by writ of error from the Supreme Court to the High Court of Errors and Appeals, and was there, after another full argument reversed, Chief Justice Tilghman delivering the opinion: 2 Binn. 532; s. c. 3 S. & R. 487, n. “ These expressions,” said he, “have often been used in wills, and often received the consideration of courts of justice; and from the case of Price v. Hunt, Pollexfen 645, in the year 1684, down to that of Hawkesworth’s Lessee v. Morgan, determined by the Court of King’s Bench in Ireland, whose judgment was affirmed in 1805 by the British House of Lords, the word ‘ or,’ in cases like the present, has been construed conjunctively ; that is to say, it has been held that the executory devise over did not take effect, unless the first devisee died under twenty-one, and also without issue. The same construction was made in this court in the case of a deed in Maury’s Lessee v. Rawle, and in the Supreme Court, according to one of the cases cited, Cheeseman’s Lessee v. Wilt, in the case of a will.” The point was again made, and we are told by the reporter was elaborately argued by Watts for the plaintiff in error, and Duncan, contrà, in Holmes v. Lessee of Holmes, 5 Binn. 252, and the previous determination of the High Court of Errors was re-affirmed, Chief Justice Tilghman carefully reviewing in his opinion all the authorities. To the same effect are the subsequent cases of Scott v. Price, 2 S. & R. 59, and Beltzhoover v. Costen, 7 Barr 13. This construction has been so conclusively settled as to have bpcome one of the landmarks of the law not now to be shaken. We must assume, then, that this devise over was only to take effect on a failure of the heirs of the first devisee dying before his arrival at twenty-two years of age. The first devisee did attain that age, and of course the devise over fell. It is only important now, so far as it may properly assist us in the construction of the whole will.

To reach this, while the intention of the testator, if consistent with law, is undoubtedly to be the polar star, yet we are bound to take as our guides those general rules or canons of interpretation which have been adopted and followed by those who have gone before us. It becomes no man and no court to be wise above that which is written. Security of titles requires that no mere arbitrary discretion should be exercised in conjecturing what words the testator would have used, or what form of disposition he would have adopted had he been truly advised as to the legal effect of the words actually employed. That would be to make a will for him instead of construing that which he has made. There are two such canons of construction, which have been so universally recognised as sound and just, that it would be a mere affectation of learning to cite books in their support. The first is, that technical words shall be taken to have been used according to their proper technical sense, unless the other parts of the will imperatively require a different one. If this were not so, even the best legal advice might not avail a man in preparing this solemn instrument — in which the most sacred affections of the heart are so much concerned. The second is, that a particular intent shall always give way to a general one if the two cannot consist together; for surely every man would desire that if his main object cannot be carried out according to law consistently with some particular wish, that the minor object should be sacrificed to the more important.

When the testator, therefore, in this instance devised his mansion-house and the adjoining lot to his son the plaintiff for life, with remainder over to his heirs in fee, it would require a very clear indication of an intention on his part to use the word “ heirs” in some other than its well ascertained legal sense to justify a court in departing from it. “ The presumption is,” says Mr. Justice Strong, “ that he used it in its ordinary legal sense, i. e., as a word of limitation, and all the cases prove that this presumption is not to be overcome by other words in the will, merely incongruous with such an intention. A testator may doubtless use the word ‘heirs’ as synonymous with ‘children;’ but his intent thus to use it must be gathered from something more than implication. It must be expressed:" Criswell’s Appeal, 5 Wright 288. There is not, as it seems to us in the will under consideration, even a clear implication that the testator meant by the word heirs anything else than the whole class of persons falling by law within that denomination, collateral as well as lineal. The devise of one-half of all his property, in an event within a definite period, which as we have seen never happened, on default of heirs of the devisee dying under twenty-two, to persons who would have been collateral heirs of the devisee, is at most a mere incongruity. It may well be doubted whether it is even that; for it is evident that he intended to dispose by his will of all his property. He says so. He had no idea of dying intestate as to any part — of any reversion remaining in him to descend to his heirs. Yet if his son had survived twenty-two, and then died without issue or heirs of his body, to which it is proposed to restrict the word heirs, it is plain, if this construction should prevail, that his sisters or their heirs would not have taken anything under the will. Their only title would have been as heirs of the reversion. If, indeed, the first limitation had been to heirs simply, and the devise over had been in default of heirs indefinitely, there would have been good reason and authority for holding that by “ heirs,” in both parts of the will, he meant “ heirs of the body.” It would then have been very clear that he never intended his sisters or their heirs to take, unless those whom he calls the heirs of his son should fail, and as the devise over, after failure of heirs of his son, is to his own aunts, he must have necessarily meant a class of heirs amongst whom the aunts could not have been enumerated, for otherwise he would have been making a gift over which could not take effect until after the extinction of the persons to whom it would have been given. There is a long line of authorities which settle the proper construction in such cases to be, that “heirs” means “heirs of the body.” I will only cite a few of the leading decisions: Webb v. Hearing, Cro. Jac. 415; Parker v. Thacker, 3 Lev. 70; Nottingham v. Jennings, 1 P. Wms. 23; Preston v. Funnell, Willes 164; Goodright v. Goodridge, Id. 369; Goodright v. Dunham, Dougl. 264; Allen v. Spendlove, Frem. 74; Tyte v. Willis, Cas. Temp. Talb. 1; Morgan v. Griffiths, Cowp. 234; Doe v. Perryn, 3 T. R. 484; Doe v. Bluck, 6 Taunt. 485. But here it is to be noticed that the first limitation is to the heirs in fee — expressing clearly that he did not mean an estate tail— but what is still more significant, the devise over is only to take effect within a definite period — while his son is under twenty-two years of age. Now, he might well have intended heirs of the body in this devise over, and yet not have intended it in the first limitation. His meaning was, that if his son died under twenty-two without issue, then his sisters should have one moiety of his property and St. Paul’s Church, of Bloomsburg, the other — but if he survived that period, then it was to vest absolutely in him in fee, or, what is the same thing, in his heirs in fee. When we are searching for the mind of a testator, all parts of the will are to be taken together, and reconciled, if possible, so as to be consistent with law. Without questioning, therefore, the rule of construction, which, as we have seen, has been so well settled, we think this will is not within it. I have found no case in which it has been applied where the limitation over has been within a definite period, and certainly none in which the express limitation in the first instance was to the heirs in fee.

The terms of the devise over in this will are therefore certainly far short of that affirmative evidence of a contrary intent, so clear as to leave no doubt,which is required by the authorities, to vary the legal meaning of the word “ heirs :" Physick’s Appeal, 14 Wright 136. If the intention is ascertained that the heirs are to take qua heirs, they must take by descent, and the inheritance vest in the ancestor. The rule in Shelly’s Case is never a means of discovering the intention. It is applicable only after that has been discovered. It is then an unbending rule of law, originally springing from the principle of the feudal system, and though the original reason of it, the preservation of the rights of the lord to his relief, primer seisin, wardship and marriage has passed away, it is still maintained as a part of the system of real property which is based on feudalism, and as a rule of policy. It declares inexorably that where the ancestor takes a preceding freehold by the same instrument, a remainder shall not be limited to the heirs qua heirs, as purchasers. If given as an immediate remainder after the freehold, it shall vest as an executed estate of inheritance in the ancestor: if mediately after some other interposed estate, then it shall vest in him as a remainder. Wherever this is so, it is not competent for the testator to prevent this legal consequence by any declaration, no matter how plain, of a contrary intention. That is a subordinate intent which is inconsistent with, and must therefore be sacrificed to, the paramount one. Even if he expressly provides that the rule shall not apply — that the ancestor shall be tenant for life only and impeachable for waste — if he interpose an estate in trustees, to support contingent remainders — or, as in this will, declare in so many words that “ he shall in nowise sell or alienate, as it is intended that he shall have a life interest only,” it will be all ineffectual to prevent the operation of the rule. No one can create what is in the intendment of the law an estate in fee, and deprive the tenant of those essential rights and privileges which the law annexes to it. He cannot make a new estate unknown to the law.

We are of opinion, then, upon the proper construction of this will, that the plaintiff to_ok an estate in fee simple. But we must remember that the devisees over are not parties to this proceeding, and will not be conclusively bound by this decree. They may moot the question again hereafter. A court of equity on a bill to compel the specific performance of a contract of sale of real estate will never compel a purchaser to accept a title which is in the least degree doubtful. It is their duty to take care that; he shall be perfectly secure. Wherever the question upon the construction of a will or other instrument is between a fee simple and an estate tail, it is a wise precaution to provide by the decree that the conveyance shall be executed in such form as to bar the entail, if one exists, and thus vest an indubitable fee simple in the purchaser. Where the mode of doing this is so simple and inexpensive as it is under the Act of Assembly of January 16th 1799 (3 Smith 388), there is no reason why it should not be done in all such cases. From the terms of the decree appealed from, this was probably the view which was taken by the learned court below, and we think that they were right.

Decree affirmed — each party to pay his own costs upon these appeals.


source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    Rhodes et al., Administrators, &c., of Childs, versus Childs.
    1. In an action to recover the proceeds of a check alleged by defendant to have been given to him by a decedent, evidence of declarations of defendant, and circumstances at the time of taking the inventory, not relating to the gift, was held to be inadmissible.
    2. Evidence for the defendant for the purpose of showing the affection and regard of the decedent for him, held to be proper.
    3. Donationes causa mortis have the similitude of legacies, i. e. they are revocable by the donor, and are ambulatory during life.
    4. The gift must be with a view to the donor’s death, and to take effect only on the donor’s death by his existing disorder or in his illness.
    5. The condition may be implied from the circumstances at the time.
    6. Estoppels are odious, and in equity, as against the truth, they do not, as a rule, exist.
    January 24th 1870, at Philadelphia.
    Before Thompson, C. J., Read, Si-iarswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montour county: No. 3, of October Term 1869.
    This was an action of assumpsit, brought July 4th 1868, by B. K. Rhodes and J. C. Rhodes, administrators, &c., of John Childs, deceased, against Charles W. Childs. The suit was to recover the amount of a check for $2824.50, drawn by John Snyder in favor of the decedent, which, the plaintiffs alleged, had been received by the defendant.
    The defendant was the illegitimate son of a sister of the decedent; his mother was dead; he had been brought up and maintained from an early age by the decedent who was unmarried. The defendant lived with the decedent until he, defendant, was married, which was at about the age of twenty-one years. The decedent afterwards lived by himself until about two months before his death, when, being aged and in feeble health, he came to reside with the defendant, and died at his house.
    The case was tried, December 22d 1868, before Jordan, P. J.
    The plaintiffs gave evidence of the delivery of the check to the decedent by Snyder in payment of a note due from him to the decedent, about a week before his death and whilst he was lying sick in bed, and that the money was drawn on the check by the defendant. They gave evidence also that when one of the administrators came to the house to take the inventory, the defendant produced some chattels, &c. The defendant was asked if he had money of decedent in his possession, he denied that he had; he was asked if he had not drawn $2824.50 on the Snyder check, he said he had, and had given it to the decedent, and said he did not know what the decedent had done with it; that he, defendant, had never seen it after he had given it to the decedent.
    The plaintiffs then offered to prove by a witness, one of the administrators, that “he asked defendant if there was not another pocket-book ? and defendant said there was, and went into another room, brought one and gave to witness a pocket-book containing fifty-one dollars and some cents, and that this was all the money of the intestate which the administrators got.” Defendant objected to this offer as irrelevant, but did not object to plaintiffs proving by witness that he, witness, did not get the $2824.50. They also proposed to ask the witness how much money there was in the pocket-book ? This was objected to by the defendant. These offers were rejected by the court, and bills of exception sealed. The plaintiffs proposed to ask the witness to relate all the circumstances that took place between him and Charles W. Childs respecting the estate of John Childs, deceased, at that time. The defendant objected, unless it had relation to the money mentioned in the bill of particulars filed. The court sustained the objection, and confined the conversation to the sum of money stated in plaintiffs’ bill filed, which they asked to recover from defendant in this action. A bill of exceptions was sealed for plaintiffs.
    There was evidence that the defendant had said, after the death of the decedent, that he had expected the decedent would do something for him, but that he had done nothing; that “his uncle John had given him the Snyder check to draw the money on and to keep it, for it was his (defendant’s); but that his attorney had told him that, as he had no evidence, it was all worthless.” There was evidence of conflicting statements by the defendant in relation to the receipt of the check, and as to what he did with the money.
    The defendant gave evidence by his daughter who, at the time of delivery of the check, was between fourteen and fifteen years of age; that Snyder gave the cheek to decedent who was sick in bed; it was about a week before his death; the decedent gave the check to the defendant in presence of herself and her mother, and told him to keep it for his own use. Defendant then offered to prove by another witness “ that in 1866 John Childs told the witness he thought more of Charles W. Childs than any other of his relations; and that he intended to give him a considerable amount of money before his death. This is offered to explain the gift testified to by Ann Elizabeth Childs, in corroboration of her testimony and as explanatory of the relation existing between John Childs, uncle, and Charles Childs, nephew.” The plaintiffs objected to the offer. It was admitted by the court and a bill of exceptions sealed.
    The witness on the stand and others afterwards called, testified to facts of the character proposed in the offer.
    The plaintiffs submitted these points:—
    “ 3. The evidence of defendant’s daughter, who is aged now between fifteen and sixteen years, dependent upon and subject to his control, that the intestate on his death-bed, gave the Snyder check to her father, in the presence of the defendant’s wife and of the witness, is not sufficient in law to establish a gift of the said check by the intestate to the defendant, and will not of itself, or in connection with the declaration by the defendant in evidence, that the intestate gave him the check, or the proceeds of the check, justify the jury in finding a verdict in his favor.
    “ 4. It is not now denied by the defendant that he got and still retains the proceeds of the Snyder check, to wit, the $2824.50, and that if the jury believe that while the inventory of the intestate’s personal estate was being taken by the appraisers at the defendant’s house, he, the defendant, was there asked by one of the administrators whether he had not drawn the amount of the check from the bank, and what he had done with it, and that he answered that he had drawn the money, but had given it to the intestate in his lifetime, and that he did not know what the intestate had done with it, nor did he know where it was; and that he persisted in this answer, knowing at the time that the inquiry was made of him by an administrator of the deceased, he, the defendant is now estopped or debarred from setting up a death-bed gift, or a donatio mortis causa of the check, as a defence in this suit, and that the verdict of the jury ought in such case to be in favor of the plaintiffs for the amount of the check, with interest, from the date of the- demand.”
    The court answered the points as follows:—
    3. “ The court cannot answer this point as requested, inasmuch as we do not consider this as a case of donatio causa mortis, but as a gift from John Childs to Charles W. Childs, of the Snyder check. John Childs was the owner of the check, and we see no reason why he might not give it to whom he pleased. Whether the testimony of the daughter of Charles W. Childs, in connection with all the other evidence in the cause, is sufficient to satisfy you that the gift was made by John to Charles, is submitted to you; and although we do not view this as a donatio mortis causa, yet the evidence to establish the gift should be so convincing as to remove from your minds any reasonable doubt as to the fact of the gift having been made, and that there was a delivery of the thing given.”
    March 21st 1870,
    4. “ The several matters mentioned in this point, although not now denied by the defendant, the court are of opinion are not sufficient to estop him from claiming the check as a gift, if the jury are satisfied, from all the evidence, that the check was given to Charles and delivered to him; but although the court do not consider these several matters as estopping Charles W. Childs from claiming the check, the declarations of Charles, and his denial that he had the money, but had given it to his uncle, they do consider them as weakening the allegation that the check was a gift from John to Charles. Whether it was given is, however, submitted to you.”
    The verdict was for the defendant.
    The plaintiffs took a writ of error.
    The first three assignments of error were to the rejection of their offers of evidence; the 4th to the,admission of the defendant’s offer, and the 5th and 6th to the answers to the plaintiffs’ points.

      B. K. Rhodes and J. W. Comly, for plaintiffs in error.
    — As tó the plaintiffs’ 3d point: This gift was a donatio causa mortis, or if not, is governed by the same principles: Michener v. Dale, 11 Harris 63; Wells v. Tucker, 3 Binney 370; Cooper's Justinian, Lib. 2, tit. 7, §§ 1, 2, p. 100; Nicholas v. Adams, 2 Whart. 22; Headly v. Kirby, 6 Harris 326; Gardner v. Parker, 3 Madd. R. 184. The evidence was not sufficient to establish a gift: Walter v. Hoge, 3 Swanst. R. 97; Rossetter v. Simmons, 6 S. & R. 452; Walmesley v. Read, 1 Yeates 87; Rohrer v. Stehman, 1 Watts 442. As to 4th point: The declarations of the defendant estopped him: Commonwealth v. Moltz, 10 Barr 527.

      E. H. Baldy, for defendant in error.
    — As to the meaning of donatio eausa mortis: 1 Spence’s Eq. Jur. 196; 2 Id. 912; 1 Story Eq. § 607 a; Nicholas v. Adams, supra; Toller on Ex’rs. 233; Wells v. Tucker, Michener v. Dale, supra. The competency of the daughter as a witness was for the court, its weight for the jury: Hill v. Chapman, 2 Brown C. R. 612; Blount v. Burrow, 1 Ves. Jr. 546 ; Tate v. Hilbert, 2 Id. 111.
   The opinion of the court was delivered,

by Thompson, C. J.

— The 1st, 2d and 3d errors are assigned upon bills of exception to tbe rejection of offers of testimony by the plaintiffs below. The object of the plaintiffs in error in these offers, it is said in argument, was to bring before the court and jury a full and detailed statement of all that took place between the administrators and the defendant at the time of taking the inventory, and when the former was demanding of the latter the production of all the personal property of the intestate in his possession. Their object was one thing, and the propriety of adopting their views, and mode of doing it, was quite another. To introduce testimony pertinent to the issue was all right, and so far as anything occurred at the time of taking the inventory, or at any other time, was also proper, but the court could not see anything like this in the offers, and in this we fully agree. Everything pertinent to the question trying, that is to say, whether there was a gift by John Childs to Charles, and what the latter said in regard to it was received, and fully noticed by the learned judge, and we may suppose, fully discussed by counsel. In the rejection of the offers, which is the foundation of these assignments of error, nothing was excluded which ought to have been admitted, so far as we can see. These errors are therefore not sustained.

The 4th assignment of error is to the admission by the court of testimony offered by the defendant to show the affection and regard of John Childs for his nephew, the defendant, and declarations that he intended to give him a considerable amount of money before his death. This was offered as corroborative of the testimony of the witness who deposed to the actual gift. Authority is not needed to sustain a thing so reasonable. Just in proportion as affection, relationship and obligation were felt on the part of the donor to the donee, would such testimony be strong or weak, as corroborative of the positive testimony of a gift. There was much given to show unmistakably the strong affection of the donor in this case, to the donee, and in the constitution of many minds, it would be stronger than in an ordinary case of the same relationship. The donor was a bachelor all his life. The donee was the illegitimate son of a sister, had been raised by him, and had lived with, and labored for him until his marriage. After marriage the friendship continued, and more resembled that of a father for a son than an uncle for a nephew. Under such circumstances the gift, all must admit, would be infinitely more probable than if made to one upon the mere tie of consanguinity, and proves the propriety of admitting the testimony as affording a presumption strongly corroborative of that which went directly to the fact of the gift. The same kind of testimony was received in Wells v. Tucker, 3 Binn. 366, tried before Yeates, J., at Nisi Prius, the propriety of which was not even questioned in that case, although commented on by the same learned judge, in his opinion delivered in banc.

This assignment of error is therefore not sustained.

The matter discussed under the 5th assignment of error was what seemed most especially to engage the attention of the counsel for the plaintiffs in error. The learned judge refused to charge as requested in the plaintiffs’ 3d point, that the testimony of the daughter of the defendant, under the circumstances of her age, being between fifteen and sixteen years old, and dependent on her father for support, taken together with his own declaration on the subject of the gift of the cheek, would not justify the jury in finding a verdict in favor of the defendant. The learned judge declined so to answer, and in answering said that he did so, inasmuch as he did not consider the testimony as presenting a case of donatio causa mortis. He therefore left the testimony referred to, and all other testimony in the case, to the jury, to say whether or not it was a case of an absolute gift — a gift inter vivos or not, properly instructing them — that the proof to establish such a gift, viz., inter vivos, ought to be of a character so convincing as to remove from their minds any reasonable doubt as to the fact of the gift having been made, and also that there was a delivery of the thing given.

Blackstone, in his Commentaries, Vol. II. p. 514, defines a gift, donatio causa mortis, to be “ a gift in prospect of death, when a person in sickness, apprehending his dissolution near, delivers or causes to be delivered to another, the possession of any personal goods, to keep as his own, in case of the donor’s decease.”

There are many authorities to show that donations causa mortis are now reduced as far as possible to the similitude of legacies; that is to say, they are revocable by the donor, and are ambulatory during the donor’s life: 7 Taunt. 231; Tucker v. Wells, 3 Binn. supra; we adopted the above definition in Gourley v. Linsebigler, 1 P. F. Smith 345, and illustrated it by holding that a gift by a soldier in good health, although in peril of battle, was not within the rule of donatio causa mortis, although he died in the field from disease two months thereafter. Story’s Eq. Vol. I. § 606 says, “it is a gift of personal property by a party who is in peril of death, upon condition that it shall presently belong to the donee in case the donor shall die, but not otherwise.” And in section 607: “ There can be no vested donatio causa mortis, unless the gift be with a view to the donor’s death — and unless it be conditioned to take effect only on the donor’s death by his existing disorder, or in his illness.” It is not essentially necessary that this condition be. expressly annexed to the gift by the donee! It may be implied from the circumstances of the donee at the time: Nicholas v. Adams, 2 Wh. 22. But whether express or only implied from circumstances, the implication must be such as to establish the fact. It is also a settled rule on this subject that the donee in this sort of gift must establish the ingredients necessary to establish it such or fail; that is to say, that it was made in the donor’s last illness in apprehension of death, and upon the condition mentioned. It would fail on that ground if it should appear to be a present gift: 2 Spencer’s Eq. Juris. 912.

There was not a particle of testimony to show that John Childs was in any apprehension of death when he made the gift in question, and therefore no implication of a conditional gift was to be deduced, and certainly there was no pretence that he annexed any condition by express words. Had therefore the defendant rested his case on the ground of donatio causa mortis he must have failed. Nor could the learned judge, without committing an error, have sent the case to the jury on that ground, for there was no evidence to sustain it. The testimony made it a present absolute gift, if there was any gift at all, and the jury believed it. The counsel for plaintiffs in error, assumed that it was a causa donatio mortis that was meant by the donor, and as that was defeated, it was nothing, and the plaintiff must recover. This view intensified the earnestness with which the case was contested by the learned counsel. But notwithstanding, we do not seé that they are right and the court below wrong in the view it took of the nature of the gift. It was not claimed that a check payable to him might not be the subject of a gift absolute, or causa mortis, being payable to bearer. The title would pass by delivery, and whatever is capable of manual delivery, and is delivered, may pass by gift. In Gourley v. Linsebigler, supra, it was expressly said that “ bonds, bills or checks drawn by the deceased on his banker” will pass by delivery and become an executed gift. In the present case the check was payable to bearer, and the title would pass on a gift of it by mere delivery. If it was delivered, accompanied by terms of present and absolute gift (and the jury have so found), the title passed as effectually to the defendant, to the money it called for, as if he had given value for it, in a contest where creditors are not concerned.

The last error is rather novel, viz., that the defendant having denied that he had the money, and having to one or more witnesses said, he drew it and gave it to his uncle, as they assume to have proved, he is equitably estopped from claiming it as his own by gift. The equity the plaintiffs set up, and that which they claim estops the defendant from alleging and proving the truth, is, that they have been obliged to bring suit to recover it, and if he may claim the money and defeat them, the estate will have costs to pay. This assumes that if he had told them the truth in the outset, viz., that the money had been given to him, they would not have sued for it. This does not follow by any means— does not result necessarily as a consequence. It was their right to sue or not, and it was their duty to sue if not absolutely convinced that there had been a gift. Therefore what he said did not mislead. In fact, all he said was in denial of their right to the money. He denied it first, last and all the time; and if some of the modes of denial were not true, it did not prevent him from setting up others that were. It is a waste of time to adduce reasons against the idea of an equitable estoppel for the causes assigned here. At best they are odious in law. In equity an estoppel as against the truth does not, as a rule, exist: Steinhour v. Whitman, 4 S. & R. 438. If the plaintiffs had no right to recover, it was their own folly to sue. One of their own witnesses, called to prove defendant’s declaration about the money, and that he had it not, on cross-examination proved that he claimed it as a gift. We need not enlarge. The learned judge was right in his ruling on this point, as he was in all the other matters complained of, and therefore the judgment must be affirmed.

Judgment affirmed.


text:
    Shartel’s Appeal. — Weist’s Estate.
    1. Releases from cestnis que trust to their trustees without the settlement of their account, are looked upon in law with jealousy.
    2. Overreaching, mistake or fraud must be shown to set such releases aside.
    3. All compromises and settlements by families are maintained, not only as beneficial in themselves, but as conducing to peace and harmony where it especially ought to exist.
    January 26th 1870, at Philadelphia.
    ¿Before Thompson, C. J., Read, Sharsvood and Williams, JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Northumberland county, in the estate of Samuel Weist, deceased.
    The decedent died on the 3d of January 1867 and administration of his estate was granted on the 31st of the same month, to John K. Weist and Jacob K. Weist, two of his sons. On the 11th of April 1868, the administrators filed an account of their administration, in which they charged themselves with the amount of the inventory, with the sale of real estate and increase on sale of goods, amounting in the whole to . . . $11,196.62
    They craved credit for divers payments and “ administrators’ charges for services” ($566.30), amounting in the whole to ..... 851.67
    Leaving a balance due the estate of . . 10,344.95
    On May 5th 1868, all the parties interested met at the mansion-house of the decedent, when the administrators exhibited a “ distribution account” as follows:—
    “ Whole amount of estate, .... $11,599.23
    Deduct administrators’ charges, &c., . $863.67
    Dower paid by Daniel Snyder, . . . ,770.16
    -- 1633.83
    Leaving for distribution, .... $9965.40 being $379.55 less than is exhibited in the account filed by the administrators on the 11th of April 1868.”
    At the same time the following release was executed by the heirs, including William Shartel and Justina his wife, she being one of the two daughters of the decedent:—
    “ Know all men by these presents, that we, Barbara Weist, intermarried with Daniel Snyder, Justina Weist, intermarried with William Shartel, &c., * * daughters of Samuel Weist, dec’d., do hereby acknowledge that we this day have had and received of and from John K. Weist and Jacob K. Weist, administrators of the estate of the said Samuel Weist, deceased, the sum of fourteen hundred and twenty-three dollars and sixty-two cents, our and each of our respective shares, in full satisfaction and payment of all such sum or sums of money, share or shares, purparts and dividends, which were due, owing and payable and belonging to us and each of us, &c., for or on account of our and each of our full share, part or dividend of the estate of our father, deceased, up to the date hereof; and therefore we, the said Barbara Weist, intermarried as aforesaid, and Daniel Snyder, her husband, Justina Weist, intermarried as aforesaid, and William Shartel, her husband, Hannah Weist, intermarried as aforesaid, &c., do by these presents remise, release, quit claim and for ever discharge the said John K. Weist and Jacob K. Weist, their heirs, executors and administrators of and from the said share or dividend of the estate aforesaid, and of and from all actions, suits, payments, accounts, reckonings, claims and demands whatsoever, for or by reason thereof, or of any other act, matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents.”
    The account of the administrators, as filed April 11th, was confirmed nisi, August 4th 1868. On the same day William Shartel filed five exceptions to the account, four of them alleged that the administrators had not charged themselves with the whole amount of the estate, and the fifth that the commissions were too large. The exceptor at the same time petitioned the court to appoint an auditor to restate the account and report the facts. The court appointed J. Kay Clement, Esq., auditor, for the purposes prayed for.
    The auditor, after stating the discrepancy between the two accounts, reported: * * * “This discrepancy is not explained to the auditor, hut, as the account set out on paper A (the distribution account) before referred to, was agreed to and adopted by the heirs in their settlement with the administrators, the auditor concludes that disbursements made by the administrators subsequent to filing their account, explain the difference between the two statements. He is further convinced in his opinion by the fact that no exception is directed to this difference Between the statements in said two accounts, both of which are in evidence; and also, because the heirs, at the date of their settlement, executed final releases to the administrators.”
    After finding that $566.30 commissions were exorbitant, and that of the other exceptions, some were sustained and some not, the auditor proceeded': * * *

      “ And this brings the auditor to the consideration of the agreement of settlement between the heirs of the decedent and the administrators, and the release executed by the said heirs, contained in papers (C and D) annexed hereto, and part of the evidence in the case.
    “ The details of a settlement between the heirs and the administrators were reduced to writing. The amounts due from each heir to the estate, and the amounts due from the estate to each heir, were ascertained and set out in exhibits annexed hereto. They were agreed to by the heirs as correct and satisfactory, and releases drawn upon the basis of the settlement were executed by each of the heirs and delivered to the administrators.
    “ Justina Shartel, the exceptant, and William Shartel, her husband, who acts in her behalf, were both present at the settlement; both had the papers explained to them, particularly paper marked A. William Shartel personally examined the release.” * *
    After further discussing the questions submitted to him, the auditor concluded his report:—
    “ But it is idle to discuss this or any of the questions raised by the exceptions, if the auditor is correct in his views as to the effect of the release executed by William Shartel and his wife— the exceptants. The entire business of the settlement with the heirs, and the execution by the heirs of this release was conducted openly, and at least with apparent fairness. There is no evidence of any concealment, or any attempt at concealment; of any fraud, collusion or contrivance to deceive. The settlement seems to have been an amicable family arrangement previously considered, matured and agreed upon. The auditor is of the opinion that this release is a perfect estoppel, is final and conclusive upon the parties. If the court shall agree with the auditor in his opinion, then all exceptions are answered by it, and all must fall together.

      February 7th 1870,
    “ The auditor, therefore, respectfully reports back the account submitted to him, intact as filed.”
    Shartel filed exceptions to the report, covering substantially the same questions as those considered by the auditor; also, that the auditor found that the release was a bar. He also petitioned the court to recommit the report to the auditor for re-examination and correction.
    The court (Jordan, P. J.) refused to recommit the report, overruled all the exceptions and confirmed it absolutely.
    Shartel appealed to the Supreme Court. The errors assigned were that the court refused to recommit the report to the auditor, and that they confirmed his report.

      T. B. Boyer and S. B. Wolverton, for appellants.
    — The last account being different from the first, it was false, and the release would therefore not be binding: Wills’s Appeal, 10 Harris 325; Witman’s Appeal, 4 Casey 376; Hawkins’s Appeal, 8 Id. 263; Schoch’s Appeal, 9 Id. 351; Diller v. Brubaker, 2 P. F. Smith 498.

      C. J. Bruner and L. H. Kase, for appellees, were stopped by the court.
   The opinion of the court was delivered,

by Thompson, C. J.

— Shartel, on behalf of his wife, who was a daughter of Samuel Weist, deceased, and an heir, entered this appeal from the decree of the Orphans’ Court dismissing exceptions to the auditor’s report, and in refusing to send it back to the auditor, and in confirming the same. The administrators of Samuel Weist’s estate filed and settled an account in the Orphans’ Court of Northumberland county, which was confirmed, and one of them by appointment met the heirs and made distribution among them of the funds in hand, and took a release and acquittance from them all, the appellant and his wife included. Afterwards the appellant presented his petition, setting forth alleged errors in the administrators’ account, of over and under charges,for and against themselves by the administrators, and also mistakes. The ■court entertained the petition and referred the matter to an auditor. The auditor found a discrepancy between the amount distributed and the amount standing charged against the administrators, of some $379, and that the commissions $566.30, were exorbitant. But he held that the settlement with the heirs was open, fair and honest, and that they were made acquainted with the true state of the accounts, and that therefore their releases bound them; and with this the learned president of the Orphans’ Court concurs, as his opinion shows.

Such releases are undoubtedly looked upon in law with a jealous eye; but this is not enough to set them aside. Overreaching in some way, mistake or fraud must be shown, to have that effect. All the cases prove this, and with those cited by the appellant’s counsel we fully accord. But where investigation has shown that nothing of the kind exists, the settlement stands. All compromises and settlements by families are maintained, not only as beneficial to themselves, but the law seeks to sustain them as conducing to peacé and harmony, where it ought most especially to exist. The discrepancy and the amount of commissions mentioned we must presume were made known and asserted, as the auditor finds the settlement and distribution was fairly and honestly made among the heirs by the administrator. We have this further reason strengthening the presumption: that none of the heirs have complained of the distribution made, or of the accounts of the administrators, excepting the appellant in right of his wife. The elements necessary to set aside the releases, founded on the settlements with the appellee, are certainly wanting in proof, and the releases consequently are now in full force. The auditor was right in his treatment of the exceptions to the accounts of the administrators and to the distribution, and so was the court in dismissing the exceptions to the auditor’s report and in confirming the decree.

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


text:
    Forrester and Kline versus Torrence, Administrator, &c., of Kline.
    1. A distributee released to the administrator all his right to what might be recovered in a suit brought by the administrator. Held, that he was a competent witness.
    2. A witness divesting himself of a mere collateral interest in the event of the suit, is not within the rule in Post v. Avery, 5 W. & S. 509.
    3. At an arbitration the plaintiff examined a defendant as a witness, i?eld, that this -rendered the defendant a competent witness on her own behalf, on the trial of the same case in court.
    January 26th 1870, at Philadelphia.
    Before Thompson, C. J., Bead, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northumberland county: Of October Term 1869.
    This was an action on the case in trover, brought September 12th 1866, by Irvin H. Torrence, administrator, &c., of Herman Kline, deceased, against Ira M. Forrester and Nancy Kline, for certain United States bonds and money alleged by the plaintiff to have belonged to the decedent at the time of his death and to have been converted by the defendants to their own use. The case had been heard before arbitrators and brought into the Court of Common Pleas by appeal. The decedent left no children or other lineal descendants, but left a widow, Nancy Kline, one of the defendants, two brothers, Isaac Kline and Henry Kline and the children of a deceased sister.
    The case was tried, January 19th 1869, before Jordan, P. J.
    The plaintiff gave evidence of the ownership by the decedent of property in dispute and of its having been in the possession of the defendants after his death.
    The plaintiff called Henry Kline, the brother, as a witness, and exhibited a release from him to the administrator of all his interest in what might be recovered in the suit. The witness was also examined on his voir dire, and testified that he had assigned all his interest in the estate to his sons on the day of the arbitration and before he executed the release, but had not delivered the assignment to them. The defendants objected to the admission of the witness. The court overruled the objection admitted the witness to testify and sealed a bill of exceptions.
    After the plaintiff had closed and the defendants had given some evidence for the purpose of proving that the property in dispute had been given to them by the decedent in his lifetime, they called Solomon Malick, who had been one of the arbitrators, and “ proposed to prove by him that Nancy Kline was called as a witness by plaintiff to maintain the issue on his part, and that he reduced her testimony to writing, and has it here in court. This is offered for the purpose of reading that testimony to the court and jury; or if that should not be admissible, then for the purpose of introducing her as a competent witness in the ease.”
    The plaintiff objected to the offer — it was rejected, and a bill of exceptions was sealed.
    They then called Nancy Kline as a witness. The plaintiff objected on ground that she was a party to the suit — incompetent on the ground of interest. The court refused to admit the witness, and sealed a bill of exceptions.
    The verdict was for the plaintiff for $4310.
    The defendants took a writ of error; and assigned for error the several decisions of the court as to the offers of witnesses.
    G. W. Ziegler and J. B. Packer, for plaintiffs in error.
    — As to the first bill of exceptions, cited Haus v. Palmer, 9 Harris 296; Asay v. Hoover, 5 Barr 21; Post v. Avery, 5 W. & S. 509; Gallagher v. Milligan, 3 Penna. R. 178; Montgomery v. Grant, 7 P. F. Smith 243. As to second and third bills: Seip v. Storch, 2 Id. 210; O’Connor v. American Iron M. Co., 6 Id. 234; 1 Greenl. Ev. § 324; Linfield v. Old Colony Railroad, 10 Cush. 570; Calhoun v. Hays, 8 W. & S. 130; Haupt v. Henninger, 1 Wright 138.
    February 8th 1870,

      W. M. Rockefeller and J. W. Qomly (with whom was S. P. Wolverton), for the defendant in error.
    — As to the first bill, cited Carter v. Trueman, 7 Barr 315; Woods v. Williams, 9 Johns. 123. As to the second and third bills: Stockton v. Demuth, 7 Watts 39; Floyd v. Bovard, 6 W. & S. 75; Turner v. Waterson, 4 Id. 171; Seip v. Storch, supra; Baker v. Williamson, 4 Barr 456.
   The opinion of the court was delivered,

by

Sharswood, J.

— The 1st assignment of error is the admission of Henry Kline as a witness for the plaintiff below, who was the administrator of Herman Kline, deceased. He was entitled to a share of the estate of the decedent under the intestate laws, and was therefore prima, facie an interested witness. To meet this objection, a release by him to the plaintiff was offered and admitted. On his voir dire he stated that he had assigned all his interest to his sons. As he added that he had never delivered the assignment to them, some question has been raised as to whether it was effectual. But it is not material, as either by the assignment or the release to the administrator, he was rendered competent. In Carter v. Trueman, 7 Barr 315, it was held that the widow of an intestate having executed a release to the administrator for a nominal consideration, and solely for the purpose of making herself a witness, was competent; and in Steininger v. Koch, 6 Wright 432, the residuary legatee of a testator, upon her assignment to the executor of all her interest in the suit, was admitted. It was considered that the rule in Post v. Avery, 5 W. & S. 509, did not apply to a mere collateral interest in the event of the suit; for that a witness might divest himself by an assignment. In that respect it is like the interest of a stockholder in a corporation: Hartman v. Keystone Insurance Co., 9 Harris 466; Commonwealth v. The Ohio and Pennsylvania Railroad Co., 1 Grant 348. The cases of Asay v. Hoover, 5 Barr 37; Burrows v. Shultz, 6 Id. 325, Haus v. Palmer, 9 Harris 296, and Montgomery v. Grant, 7 P. F. Smith 243, were all cases of feigned issues, where the witness offered was really though not nominally a party, and had incurred a responsibility for the costs, which, of course, could not be shaken off by a release. So, in Gallagher v. Milligan, 3 Penna. Rep. 177, though not a feigned issue, the witness was substantially a party; and that ease rests upon the same principle as Bell v. Smith, 5 B. & C. 188, an action which was prosecuted in the names of the brokers on a policy of marine insurance, where their principal was declared to be incompetent on the same ground. We think, therefore, that there was no error in the admission of the witness.

The 2d assignment of error is, that the court erred in rejecting the notes of the testimony of Nancy Kline, one of the defendants below, as given by her when called and examined before the arbitrators, to whom the action had been referred under the Act of June 16th 1836, § 8, Pamph. L. 719. Had Nancy Kline been dead, or if she had removed out of the state, there would have been some reason for this offer; but no preliminary proof of either of these facts was proposed to be given, nor any other ground laid for the admission of what was clearly only secondary evidence. It would have been contrary to all rule and precedent to have permitted her deposition or the notes of her testimony on a former trial to have been read under these circumstances. There was, therefore, no error in this ruling of the learned court below.

The 3d error assigned is in the rejection of Nancy Kline as a witness when called and offered on the part of the defendants. In connection with this offer, it had previously been proposed to prove by Solomon Malick, one of the arbitrators in the cause, that Nancy Kline, though one of the defendants, had been produced and examined as a witness by the plaintiff on the hearing before them. This, according to our decisions, rendered her a competent witness for the defendants: Patterson v. Wallace, 8 Wright 88; Seip v. Storch, 2 P. F. Smith 210; O’Connor v. The American Iron Mountain Co., 6 Id. 234; Bennett v. Williams, 7 Id. 404. In the case last cited the plaintiff took the deposition of the defendant under a rule of court to be used on the trial. It was held that he thus made him a competent witness in the cause for all purposes. It is not easy to distinguish the principle of that case from this. Erom analogy, it ought not to make any difference that the testimony was given on a former trial or in a former proceeding, as long as it was in the same cause. Thus, in Maclay’s Lessee v. Work, 10 S. & R. 194, it was decided that if a party produce a letter in evidence, that is sufficient to make it admissible for the opposite party in a subsequent trial, though otherwise it would have been incompetent for him; and in Stiles v. Bradford, 4 Rawle 394, where a deposition offered had been previously read on the hearing of a rule for a feigned issue, it was agreed that all objections to the -competency of the witness were thereby waived, and if he had not been alive, and within the reach of a subpoena, it could have been used by the opposite party on the trial. See Yohe v. Barnet, 3 W. & S. 88. There are good reasons for thus holding; for by calling and examining the witness, the plaintiff fully accredited her as worthy to be believed. Having done so once in the cause, he ought not to be allowed to object to her afterwards. Such a course would be likely to mislead his opponent, to induce him to believe that she would be called again, and to make his preparations on that expectation. We think, therefore, that the witness was competent, and ought to have been admitted.

Judgment reversed, and venire facias de novo awarded.


author: by Agnew, J. Thompson, C. J.

text:
    In the Application of the President Judges of Eighth and Tenth Districts.
    1. The Act of April 2d 1860, sect. 1 (Courts), is constitutional, and is a special organization of the several courts for necessary purposes when the proper president is disabled, by the substitution of another in his place.
    2. Another judge learned in the law can be substituted for the president, as the judge of a Court of Over and Terminer.
    3. The reorganization of Courts of Common Pleas is within the legislative power, and new courts can be created and invested with like powers.
    4. The power to try felonies triable in the Oyer and Terminer, is not confined to the presidents of the proper district, but may be conferred on other judges learned in the law, and upon judges of courts specially created for the trial of such causes.
    5. Under Art. 5, 3d section of the Constitution, there is power to organize courts differently from the mode therein provided.
    6. The number of judges may be changed; associates learned in the law may be constituted with the same powers as the president.
    7. The Constitution has not provided for the appointment or commissioning of judges of the county courts, except of the Common Pleas.
    8. The judges of the Common Pleas are by virtue of their office, constituted judges of the other courts.
    9. A president holding the Common Pleas in a county, becomes president of all the other courts by virtue of his office.
    10. In case of sickness or other disability contemplated by the acts relating to special courts, the president of the proper district has power to call in the president of another, to hold the regular term of his courts in any county in his district.
    11. The president so called in,when sitting can hear and try all causes pending at that time in any of the courts, civil or criminal, including those triable in Oyer and Terminer.
    12. In such cases it is necessary that a proper certificate, setting forth the disqualification, &c., and the call on the other president to hold the regular term, signed by the proper president, should be filed of record and entered on the minutes of the court, as the evidence of the authority to hold the courts, and of title to the compensation.
    13. Commonwealth v. Flanagan, 7 W. & S. 68, Commonwealth v. Ickhoff, 9 Casey 80, Zephon’s Case, 8 W. & S. 382, Commonwealth v. Green, 8 P. F. Smith 226, remarked on.
    January 2d 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    The Hon. Alexander Jordan, President Judge of the Eighth District, including Northumberland county, and Hon. Joseph Buffington, President of the Tenth District, including Armstrong county, at January term 1871, applied to the Supreme Court, to assign one of their number to hold a Court of Oyer and Terminer in each of these counties on account of the inability from illness of the applicant^ to hold their respective courts.
    February 27th 1871,
   The opinion of the court, in answer to the application, was delivered

by Agnew, J.

It is evident, therefore, that the power to try capital and other felonies, such as are triable in the Court of Oyer and Terminer and General Jail Delivery, is not confined to the president judges of the proper district, but may be conferred upon other judges learned in the law, and upon judges of courts specially created for the trial of such causes. This brings us to the power to organize the Courts of Common Pleas, upon which the other county courts hang. The 3d section of the 5th article says, “ until otherwise established by law, the Courts of Common Pleas shall continue as at present established. Not more than five counties shall at any time be included in one judicial district organized for said courts.” The power to organize the courts differently has been considered clear. Hence, the number of judges may be changed, and associates learned in the law constituted, with the same powers as the president. The only limitations are those contained in the 5th section of the 5th article, which is in these words: “ The judges of the Court of Common Pleas in each county shall, by virtue of their offices, he justices of the Oyer and Terminer and General Jail Delivery for the trial of capital and other offenders therein; any two of the said judges, the president being one, shall be a quorum; but they shall not hold a Court of Oyer and Terminer or Jail Delivery in any county when the judges of the Supreme Court, or any of them, shall be sitting in the same county.” The purpose of this section is most material to its proper interpretation. The Constitution has not provided for the appointment or commissioning of the judges of the county courts, except the judges of the Common Pleas. The purpose of the 5th section, and also of the 7th, was to provide for those who should be judges of the other courts. Those sections were intended to accomplish this purpose by constituting the judges of the Common Pleas the judges of the other courts by virtue of their offices. Hence commissions are issued to the judges of the Court of Common Pleas alone, who thereby become judges of the other courts. Therefore the judges of the Common Pleas in each county are judges .of the Courts of Oyer and Terminer. But who the judges of the Common Pleas in the particular county shall be, and who the particular president judge shall be, who must be of the quorum, will depend on the organization of the Court of Common Pleas by the legislature. The constitution does not say they shall be the judges for the county, but the judges in the county. The president judge, who is elected for a district, is not, except in a general sense, a judge for the particular county; but as the president of the Common Pleas sitting in the county, he is, by virtue of his office, judge, also, of the Oyer and Terminer. But that the president judge of the Common Pleas is not unalterably the president judge of the particular county is clear, otherwise there could be no special Court of Common Pleas to try causes in that county, w'hen the proper president is disqualified. If, therefore, a special Court of Common Pleas can be constitutionally established for the trial of certain causes, which no one doubts, by force of the Constitution itself, it would seem the president holding the Common Pleas in the county becomes president of all the other courts by virtue of his office; or, if not, certainly he is not disqualified by the 5th section from being the president of the other courts, when so constituted by law. In such a case it is only the organization of the court which is changed by the substitution of one president for another. Now the power to substitute is the very point decided in the cases of Zephon, Kilpatrick, and Foutz, where it was held in those cases that an associate learned in the law could constitutionally take the place of the president. Whatever might have been the impression of any one formerly on this question, the point is conclusively adjudged. It would be a terrible thing to say that the many convictions of murder before, and sentences of death pronounced by, associate law judges have been so many judicial murders. A special Court of Common Pleas being a legally constituted court, to say that none but the president of the district can hold a Court of Oyer and Terminer, is to place the power he derives from his commission as a judge of the Common Pleas to be a judge of Oyer and Terminer higher than the commission itself, which gives place to that of another judge, when called to hold a special Court of Common Pleas. It is also to narrow the meaning of the Constitution to an inconvenient and unnecessary degree,, while it detracts from the acknowledged power of the legislature to establish new courts with Oyer and Terminer jurisdiction. It is needless to say that the clause in the bill of rights, forbidding special commissions of Oyer and Teminer, has nothing to do with the question. This has been clearly shown by our Brother Sharswood in the Commonwealth v. Green, 8 P. F. Smith 232.

Our conclusion, therefore, is that, in the case of sickness and other disability contemplated by the acts of legislation already referred to, the president judge of the proper district has power to call in the president judge of another district to hold the regular term of his courts in any county in his district. The president judge so called in, when sitting, has jurisdiction and authority to hear and try all causes pending at that term in any of the courts, civil or criminal, including capital and other felonies in the Courts of Oyer and Terminer and General Jail Be-livery. It is necessary that a proper certificate, setting forth the cause of disqualification or disability, and containing the call 'upon the president judge to hold the regular term of the courts, signed by the proper president, should be filed of record, and entered on the minutes of the court as the evidence of authority to hold the courts, and of title to the compensation allowed for special courts.

This conclusion has the concurrence of all the members of this Bench, including Justice Read, who is now sitting at Nisi-Prius.

The applications of Judges Jordan and Buffington are, therefore, refused: and the prothonotary is ordered so to notify them, and to certify to each a copy of this opinion.

Concurring opinion of

Thompson, C. J.

— In the cases referred to by my brother Agnew, in the foregoing opinion, viz., The Commonwealth v. Kilpatrick, Commonwealth v. Foust, and The Commonwealth, ex rel. Attorney-General, v. Green, I resisted, to the best of my ability, the conclusions that any other than those judges indicated in the constitution could legally be of the quorum to compose and hold courts of Oyer and Terminer, namely, the judges of the Supreme Court, or some of them, or the president judge and his associates of the proper county in which the crime is triable. In this view, myself, as well as another judge of this court, have been overruled by the majority of the bench. It has been held by this court, that a judge learned in the law may, together with his associate or associates, hold such courts. I am not satisfied of error yet; but I must admit that the law is at present conclusively settled against me, and I am, as every other citizen, bound by it. I therefore concur in the above opinion, that the law as settled, will permit the holding of Oyer and Terminer courts, by president judges of other districts, in cases of inability on the part of the president judge of the district to hold them, and agree in recommending the calling in of other judges in the districts above mentioned to hold the ensuing courts of Oyer and Terminer.


author: by Read, J.

text:
    McCurdy and Stevenson versus Canning.
    1. A purchaser at sheriff’s sale, under a judgment against a husband, of his interest in an estate held with his wife by entireties, cannot recover possession during the wife’s life.
    2. If an estate be made to husband and wife during coverture, they are not propei-ly joint tenants or tenants in common, but both are seised of the entirety. Per Thayer, J.
    E. Neither can dispose of any part without the assent of the other, but the whole must remain to the survivor. Id.

      4. The same words which would make two other persons joint tenants will make husband and wife tenants by the entirety. Id.

      5. The Act of March 31st 1812.(Joint Tenants) does not apply to entireties of husband and wife. Id.

    6. The Act of April 11th 1848 (Mamed Women) prevents a purchaser at sheriff’s sale of a husband’s interest in an estate held by entireties, while the wife lives, from recovering possession, even for the life of the husband. Id.

    7. Stoebler v. Knerr, 5 Watts 181, remarked on.
    January 4th 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., at Nisi Prius.
    Error to the District Court of Philadelphia. No. 180, to July Term 1868.
    This was an action of ejectment, commenced December 2d 1865, by John K. McCurdy and Hugh Stevenson against Robert Canning and Eliza Canning, his wife, for a house and lot of ground in Philadelphia.
    On the 20th of August 1855, one Patterson conveyed the premises in question to the defendants, “ their heirs and assigns” : —the habendum of the deed was: “ To have and to hold the said three-story brick building and lot or piece of ground and the hereditaments and premises hereby granted or mentioned and intended so to be with the appurtenances as tenants in common and not as joint tenants, unto the said Robert Canning and the said Eliza Canning, their heirs and assigns, to and for the only proper use and behoof of the said Robert Canning and Eliza Canning, their heirs and assigns forever.”
    A judgment was subsequently recovered against Robert Canning, under which, in 1859, his interest in the premises was sold to the plaintiffs.
    On the trial the court (Thayer, J.) directed a verdict for the plaintiffs for the husband’s interest, and for the wife for her interest, reserving the point “ whether under the deed, the plaintiffs can recover at all in this action.” The verdict was in accordance with this instruction.
    The court afterwards entered judgment for the defendant on the point reserved; Judge Thayer delivering the following opinion:—
    “ This was an action of ejectment. The defendants, Robert Canning and Eliza his wife, held under a conveyance in fee made to them during their coverture, and the question is whether the plaintiffs who were purchasers at sheriff’s sale of the husband’s interest can recover possession of any part of the property by this action.
    “If an estate in land be given to the husband and wife or a joint purchase be made by them during coverture, they are not properly joint tenants nor tenants in common, for they are but one person in law and cannot take by moieties, but both are seised of the entirety, per tout et non per my. The consequence of which is, that neither the husband or wife can dispose of any part without the assent of the other, but the whole must remain to the survivor : 2 Bl. Com. 182. So long ago as Doe v. Parratt, 5 T. R. 652, Lord Kenyon remarked, ‘It has been settled for ages that where a devise is to the husband and wife they take by entireties and not by moieties, and the husband alone cannot by his own conveyance, without joining his wife, divest the estate of the wife.’
    “ This species of tenancy arises from the unity of husband and wife, and it applies to an estate in fee for life or for years. The same words of conveyance which would make two other persons joint tenants will make the husband and wife tenants of the entirety. Joint tenants are each seised of an undivided moiety of the whole, but husband and wife are seised of the whole and not of undivided moieties. Of such an estate, as Montague, C. J., says, in Plowden 58, ‘ the husband has the entire use and the wife has the entire use, for there are no moieties between husband and wife.’ The attainder of the husband does not affect the wife’s estate: 1 Inst. 187 a. Nor can the husband forfeit or alien so as to sever the tenancy, ‘ because,’ as Cruise says, ‘ the whole of it belongs to his wife as well as to him:’ tit. 18, ch. 1. Nor is such an estate affected by the statutes of partition: 4 Kent’s Com. 363; Thornton v. Thornton, 3 Rand. R. 179.
    “ The Act of 31st March 1812, which destroyed survivorship between joint tenants in Pennsylvania, does not apply to entire-ties held by husband and wife: Robb v. Beaver, 8 W. & S. 111. So that this estate remains as at common law, excepting in so far as it may have been affected by the Act of 11th April 1848, commonly called the Married Woman’s Act. It would seem to have followed, at common law, from the unity of husband and wife, and the subjection of the latter to the former, that the husband had the control of the estate during his life, and might convey or mortgage it during that period. This is conceded by Kennedy, J., in Fairchild v. Chastelleux, 1 Barr 181, and decided in Barber v. Harris, 15 Wend. 615; Jackson v. McConnell, 19 Id. 175. If the husband might convey or mortgage it for the period of his own life, it would seem to follow necessarily that it might be taken in execution and sold by the sheriff for the same period, and that a purchaser of such an interest would be entitled to recover the possession during the life of the husband by an action of ejectment. But just here the Act of 11th April 1848 interposes its insuperable bar to such a result, declaring that ‘ every species and description of property, of whatever name or kind, which may accrue to any married woman during coverture, by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property, and shall not be subject to levy and execution for the debts or liabilities of her husband, nor shall such property be sold, conveyed, mortgaged or transferred, or in any manner encumbered by her husband without her written consent first had and obtained and duly acknowledged, &c.’
    “The case, therefore, stands thus: Here is a married woman who is neither a joint tenant or tenant in common with the husband, but who is seised of the whole estate, and with him entitled to possession of the whole. If a purchaser of the husband’s interest may be put into possession with her, what follows ? This: 1st. You have destroyed her estate, and turned her entirety into a joint tenancy or tenancy in common. 2d. You have deprived her altogether of the possession, because it is not in the nature of things that she can enjoy actual possession with a stranger as she did with her husband. 3d. You have taken away her property without her consent and destroyed her rights, which were protected by the Act of April 11th 1848. She was entitled to possession of the whole with her husband. You propose to give possession of the whole with a stranger, a possession which she cannot, and which he probably would not enjoy. If it should be answered that the property may be rented, and a moiety of the rents and profits may be paid to her, that is only to say that you may deprive her of her estate and give her another of inferior value, a substitution which you have no right to propose. The words of the Act of 1848 are of so comprehensive a character, and its purpose to protect every possible interest of the wife is so plain, that we cannot, by any possible construction, consistent with the object of the legislature, and the language which they have used, except this interest from its protection.
    January 10th 1870,
    “ These considerations lead us to the conclusion that one who, without the consent of the wife, purchases the husband’s interest in real estate in which both husband and wife are seised of the entirety, and to the possession of the whole of which she is entitled equally with him, does not acquire, during the wife’s life, any right to the possession, either jointly with her or to her entire exclusion. Practically these two propositions are not alternatives but the same, for we can as easily marry her to a stranger as marry her possession to his without destroying her estate.
    “ The case of Stoebler v. Knerr, 5 Watts 181, is not in conflict with these views. The point to be determined here did not arise in that case which was decided twelve years before the passage of the Married Woman’s Act. In that case the husband and wife did not hold by entireties. There was an absolute conveyance in fee simple to the husband, coupled with a contemporaneous agreement, the intent of which was to control the conveyance, and to give the estate jointly to the daughter of the donor and her husband in special tail, but it failed for want of apt words to accomplish that result, and it was held that the whole estate was in the husband for life, and that his freehold was a legitimate subject of execution.
    “Judgment for the defendant on the point reserved.”
    The plaintiffs took a writ of error, and assigned for error the entering of judgment for the defendant.

      A. Thompson and W. JS. Whitman, for plaintiffs in error,
    cited Ash v. McGill, 6 Whart. 391; Stoebler v. Knerr, 5 Watts 181: Coulter v. Phillips, 8 Harris 154; Dougan v. Blocher, 12 Id. 28; Smith v. Painter, 5 S. & R. 222; Martin v. Jackson, 3 Casey 504; French v. Mehan, 6 P. F. Smith 286.

      JT. McIntyre, for defendant in error,
    cited Diver v. Diver, 6 P. F. Smith 106; Stuckey v. Keeffe, 2 Casey 402.
   The opinion of the court was delivered,

by Read, J.

— We affirm this judgment for the reasons so well assigned by the learned judge (Judge Thayer), in his able opinion in the court below.