text:
    Link versus Germantown Building Association.
    1. An unincorporated building association is not entitled, by the Act of April 12th 1859, to recover upon its mortgages more money than was actually advanced to its stockholders, with legal interest thereon.
    2. Where there has been no appropriation by such association or the stockholders of the payments on the stock to the mortgage, such payments cannot be lawfully set up as payments on the mortgage; they do not ipso facto work a pro tanto extinguishment of the mortgage, and the purchaser at a sheriff's sale of the mortgaged premises cannot be allowed to set them off against the association in a suit on the mortgage.
    3. The interest paid by the mortgagor, while a member of the association, is to be credited to the interest which has accrued on the sums actually loaned, to secure which the mortgage was executed.
    4. The terre-tenant who purchased the mortgaged premises at sheriff’s sale and was allowed to defend against the" claim of the association on the mortgage, is entitled to take defence as to the consideration of the mortgage and to show that it was unlawful to the amount of the premiums, and to that extent not a valid charge against the land.
    January 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, Nos. 58 and 59.
    These were two writs of scire facias sur mortgage, issued by Joseph Handsberry, treasurer of the Germantown Building Association, against Christian Pfeiffer and Frederick Schauffele, and John Link, terre-tenant, admitted to defend.
    The pleas filed were non-assumpsit, payment, set-off, with leave to give m evidence the special matter set forth in the affidavit of defence of John Link, terrc-tenant.
    The affidavit of Link set forth that deponent was the purchaser at sheriff’s sale of the mortgaged premises; that the mortgagee was the treasurer of the building association; that said association, being-unincorporated, had made two loans to Pfeiffer and Schauffele, both loans nominally in the sum of $3000, and secured by mortgages upon the premises bought by defendant; that the said mortgagee only paid the said mortgagors the sum of $2760, and said mortgagors have repaid to said mortgagee the sum of $1108.50, upon the principal of said mortgage, and have besides paid a large amount of money in usurious interest, having paid interest at the rate of six per cent, per annum upon $3000, instead of- upon the sum of $2760, the actual amount of the said mortgage; that, according to deponent’s calculation, there is only due said mortgagee the sum of $1631.10; that the plaintiff, not having been incorporated, cannot be recognised as a building association under the law ; that as such unincorporated association, it can only recover the amount actually loaned, with legal interest thereon, after giving credit for all amounts paid in by the mortgagors; that said association is not entitled to the stock and loan privileges of building associations incorporated under the Act of 1859; that deponent is willing to pay said $1631.10, or such amount as can lawfully be claimed on said mortgages.
    The jury returned a special verdict, which set forth that plaintiff was an unincorporated association; that on January 15th 1873 and January 23d 1873, respectively, Pfeiffer and Schauffele executed a bond and mortgage to plaintiff for $3000, payable in one year, interest payable monthly; that on the first mortgage they received a loan of $2760 and on the second $2690; that as additional security for said loans, Pfeiffer and Schauffele transferred on January 30th 1873 to the plaintiff sixty shares of stock of the association, which they owned and on which they had paid $1348.
    Pfeiffer and Schauffele made payments on the stock, and also on account of interest on the mortgage, until May 18th 1875. . On July 17th 1875, attachments in execution against Christian Pfeiffer, to the amount of $1500 and $2000, or $3500 in all, were served upon the treasurer of the association.
    On July 31st 1875, Christian Pfeiffer gave the secretary of the association written notice that he had assigned his interest in the sixty shares of stock to Martin Link, who was not the terre-tenant and plaintiff in error.
    On November 5th 1875, another attachment against Christian Pfeiffer was served, for $376.07. On January 25th 1876, two more attachments were served, for $1188.36 and $326.07, against Christian Pfeiffer. And on January 28th 1876, an attachment against Christian Pfeiffer and E. Schauffele, for $367.33, was served.

      On December 24th 1875, the sheriff conveyed the mortgaged premises to John Link, he having bought them at the sheriff’s sale on December 6th 1875, on ajudgment against Pfeiffer and Schauffele. At this sale notice was given that the purchaser would take the property subject to this mortgage.
    On February 4th 1876, the sci. fa. was sued out, and served on Pfeiffer and Schauffele, who appeared by separate counsel. They filed no affidavit of defence. John Link filed an affidavit, claiming credit for all the stock and payments made by the defendants.
    The case was put at issue as to Schauffele and Link. It does not seem to have been at issue as to Pfeiffer. The defendants took no part in the defence. John Link was admitted to defend. He claimed as in his affidavit.
    Upon this special verdict judgment was entered by the court,. November 6th 1878, in favor of plaintiff, for $3496.51, with interest from October 25th 1878. Subsequently judgment was entered on the verdict, in accordance with the following opinion of Allison, P. J.'
    “ Any one who has occasion to examine critically the decisions of the Supreme Court on the subject of building association loans, will be very likely to agree with the remark of Mr. Justice Sharswood, in Jarrett v. Cope, 18 P. F. Smith 70, where he says: ‘lam afraid I do not understand them all.’ One point may,' however, be considered as clearly settled, that prior to the Act of April 12th 1859, building associations, corporate or incorporate, could recover on their mortgage loans only the sum actually loaned, with legal interest.
    “ Jarrett v. Cope, decided in 1871, re-affirms the doctrine of the earlier cases as to unincorporated associations, and that the Act of 1859, which declared that premiums taken for the preference or priority of loans should not be deemed usurious, did not apply to any association other than those incorporated under the Acts of 1859 and of April 22d 1850. Unincorporated associations are unaffected by this legislation, and are not within the saving provisions of either of the Acts of Assembly.
    “ The persistent effort, on the part of the Supreme Court to protect the members of building associations against oppressive- exactions in the form of loans and the legislation procured by the associations, to avoid the effect of the numerous decisions of the court upon the subject of usurious contracts extorted from the stockholders, are abundantly manifest by an examination of the decisions of the court extended through a number of years, and of the Acts of Assembly passed from time to time by the legislature, to validate loans of this character. It was held that neither of the Acts of April 22d 1850, or of May 8th 1855, or of May 8th 1857, authorized building associations to enforce the recovery of usury in usurious contracts of loan: Houser v. The Association, 5 478; Kupfert v. The Association, 6 Casey 465. A retroactive effect was also denied to the Act of April 12th 1859, so as to alter the rights of parties who had contracted loans with building associations prior to the passage of the act: Denny v. The W. P. Association, 8 Wright 154.
    “ The Act of 1859 was passed to render clear and certain that which previous legislation had failed to accomplish, and to remove all doubt as to the legality of contracts of loan made prior thereto, by companies incorporated under the Act of 1850, and which should thereafter be incorporated.
    “ It declares it to have been the true intent and meaning of the Act of 1850 to authorize the incorporation of companies, with power to loan to stockholders their accumulated moneys, and that the premiums taken by said companies for preference or priority of loans, should not be deemed usurious.
    “ But this act was held to be unconstitutional and void, in so far as it was intended to be expository, and that in suits for loans made prior to its passage no more can be recovered than the amount loaned, with legal interest: Reiser v. The William Tell Association, and Denny v. The W. P. Association, 8 Wright 137 and 154.
    “ In the case of Building Association v. Timmins, 3 Phila. R. 203, Judge Hare sums up tersely the general judgment of the Supreme Court, when he says : ‘ So far as I am able to understand the view taken by the Supreme Court of building associations, it would seem to be that they are, in point of fact or of law, schemes for avoiding the statutes against usury, and that all payments made under their constitutions or by-laws, as instalments on stock, are consequently to be regarded as payments on account of loans made to their stockholders. Such undoubtedly was the effect of the decisions in which it was held that the payments on stock assigned as collateral security for a mortgage loan, interest and fines were to be credited as payments on the sum actually advanced to the borrower, and that usurious interest paid under such circumstances is not a voluntary payment in any such sense as to entitle the receiver to retain. the sum paid above legal interest: Association v. McKnight, 11 Casey 472. But in the case of The Association v. Sutton, 11 Casey 463, the court qualify the decisions in Gruttenberg Association v. Kupfert, and Hughes’s Appeal, 6 Casey 465 and 471, to the effect that payments on account of stock were to be regarded as payments on account of the loan, and hold that the doctrine of those cases was in advance of the general understanding, and was considered necessary to protect the borrowing community from the oppression and hardships imposed on them by money-lending associations. The most material point ruled in The Association v. Sutton is, that the former decisions are not to be regarded as laying down the rule that payment of dues on stock ipso facto works an extinguishment of so much of the mortgage. The debtor may so apply it, but payment itself is not an application of the money to the reduction of the mortgage. This was followed by the case of The S. G. Association v. The T. S.-Association, 10 Wright 493, in which the same principle is affirmed, and The Association v. Sutton is recognised as having been well decided.
    “ An act of appropriation by either the lender or the borrower, is held to be necessary to effectuate application of payments on stock to the debt, and that strangers to the transaction stand on a different footing. They can require nothing which the parties do not. The conclusion reached in the case in 10 Wright is, that there having been no appropriation by either party, the purchaser at sheriff’s sale of the mortgaged premises could not compel an application of the collateral security to the reduction of the mortgage.

      “ This principle is, we think, as applicable to contracts of loan made with an unincorporated association, as it is to those which are incorporated under the laws of this Commonwealth. It is the general doctrine of appropriation of payments, whether made as between individuals, or as between individuals and corporations, in all cases where the relation of debtor and creditor exists. It by no means follows, as the terre-tenant in this case contends, that because unincorporated associations are not entitled to invoke in their behalf the saving clauses of the Act of 1859, in relation to the recovery of premiums on loans, as decided in Jarrett v. Cope, that the established rules of law, in cases where there is an indebtedness upon several distinct accounts, and payments are made by the debtor to his creditor, are not applicable. No sufficient reason has been presented to induce us to adopt the view entertained by the terretenant, and to apply in this case the old doctrine overthrown by the decision in the Building Association v. Sutton.
    i! From the foregoing and other decisions of the Supreme Court, we conclude as applicable to the facts found by the special verdict in these cases:
    1. That the Germantown Building Association, being an unincorporated association, is not entitled by the Act of April 12th 1859 to recover upon their mortgages more money than was actually advanced to the defendants, with legal interest thereon. The Act of 1859 is applicable to incorporated companies only. The law, as settled by repeated adjudications of the Supreme Court, denying the right to recover the amount allowed or paid as a premium for a loan, remains in full force as to all unincorporated building associations.
    “ 2. There having been no appropriation by either party of the payments on the stock to the mortgage debt, such payments cannot be lawfully set up as payments on the mortgage; they do not ipso facto work a pro tanto extinguishment of the mortgage, and that the purchaser at sheriff’s sale cannot be allowed to set off plaintiff.

      “ 3. The interest paid by the defendant while a member of the association, is to be credited to the interest which has accrued on the sums actually loaned to the defendant, to secure which the mortgages were executed by them.
    “ 4. The terre-tenant, John Link, who purchased at sheriff’s sale under a junior judgment, having intervened and been allowed to defend against the claim of the plaintiff, is entitled to take defence as to the consideration of the mortgages, notwithstanding the fact found by the special verdict that at the ‘ sale notice was given of the mortgages sued on in this case.’ The defence to the mortgages is that as to the excess actually advanced as a loan, they are without consideration. That if such excess or premium could not be recovered against the land in the hands of the mortgagors, why against the land in the possession of a terre-tenant ? When one purchases under and subject to a mortgage debt, it is the debt which at the time is due. He ought to be allowed to show payments made upon the mortgage by the mortgagor, by which the mortgage is to that extent extinguished, or to show payment in full, or that the mortgage debt never existed, and that there is therefore no such lien to be enforced as against the land. For a like reason he ought to be allowed to show that the mortgage is in part or in whole fraudulent. The mortgages in these cases were unlawful to the amount of the premiums, and to that extent never were a valid charge against the land, having been given for a larger sum than the actual loan. When the purchase is under and subject to a bona fide debt secured by mortgage, the purchaser buys for a consideration of which the mortgage debt forms a part, but where the debt is not bona fide, or where it does not exist at all, he ought to be entitled to take defence to the claim.
    “Where land is sold subject to a mortgage, it becomes the primary fund to pay the mortgage debt, but it is the debt of so much of it as is actually due. Hansell v. Lutz, 8 Harris 284, decides no more than this, where it says that the purchaser shall discharge the mortgage. Nor is Good v. Grant, 26 P. F. Smith 52, an authority against the conclusion reached on this point. The effort of the terre-tenant is not to recover back usury paid by the mortgagors. His defence rests on a partial failure of consideration, and to be allowed a credit for the interest paid as on the real instead of the nominal debt. Cooley’s Appeal, 1 Grant 401, does no more than affirm the general principle of the liability of a purchaser at sheriff’s sale of an estate encumbered by a prior mortgage to pay it off. That is, the mortgage or so much as is actually due upon it.
    “We do not think it important to pass upon the question of the effect of the attachments of stock of defendants in the hands of the association, nor of the subsequent assignment by Pfeiffer of his interest in the stock.
    “ The amounts for which judgments are to be entered on the points reserved in favor of plaintiff can be settled by counsel.”

      The judgment entered in accordance with this opinion gave the terre-tenant credit on the mortgage for the premiums of f220, and the payments made for interest, but did not give him credit for the stock and the payments made on account of it. To this judgment Link took this writ of error.

      William H. Siaalce, for plaintiffs in error.
    The position of the defendants and' terre-tenant was based upon the following propositions :—
    1. The jury found that the mortgage was a building association mortgage, given as security for a stock loan, and that the building association was unincorporated.
    2. That being unincorporated, the law applicable to building associations in existence, prior to the Act of April 12th 1859, should govern the court in construing the contract between the association and the defendants.
    3. That under the law applicable to building associations, incorporated prior to the Act of 1859, the defendants, and even a purchaser at sheriff’s sale,- subject to a building association mortgage, would be entitled to credit for the value of the shares of stock assigned to the association as collateral security for the mortgage debt: Kupfert v. Guttenberg Building Association, 6 Casey 465; Bechtold v. Brehm, 2 Id. 269; Hughes’s Appeal, 6 Id. 471; Schober v. Accommodation Loan Association, 11 Id. 223; Association v. McKnight, Id. 470 ; Reiser v. William Tell Association, 3 Wright 137; Kelly v. Perseverance Association, Id. 148; Denny v. West Philadelphia Building Association, Id. 154; Premium Fund Association’s Appeal, Id. 156; Houser v. Association, 5 Id. 178; Mc-Grath v. Association, 8 Id. 383; Everham v. Association, 11 Id. 352; Johnson v. Potomac Building Association, 14 Leg. Int, 393, 401; Kelly v. Association, 2 Phila. 237; Schnepf’s Appeal, 11 Wright 37; Jarrett v. Cope, 18 P. F. Smith 71. ’

      George Junlcin, for defendant in error,
    relied upon the opinion of the court below and the authorities there cited, and in addition cited Kreamer v. Springfield Association, 6 W. N. C. 267.
   The judgment of the Supreme Court was entered, February 17th 1879,

Per Curiam.

These judgments are affirmed upon the opinion

of the learned President Judge Allison in the court below.

Judgments affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Whitney versus Shippen et al., Ex’rs.
    1. Where in an assignment of a lease by the lessee he is held in express terms to all the covenants in the lease, he is not a competent witness in an action for a breach of one of the covenants brought by the executors of his deceased lessor, against his assignee.
    2. G. leased certain premises known as Gray’s Brewery, to M., the lease containing the following conditions: u Should the lessee make any alterations or improvements of the said promises or appurtenances demised, the same are not to be removed by him, but shall belong and be surrendered to the lessor at the end of the term.” M. introduced new machinery at considerable expense, and subsequently assigned the lease to W. At the end of the term W. removed certain portions of the new machinery, when the executors of G. brought an action upon the above covenant. W. offered testimony to show that at the time M. assigned the lease to W. there was a parol agreement to which G. Was a party, that W. would purchase the new machinery, of which the articles in question were a part, for a fixed sum on condition that he could remove it at the end of his term. The court overruled the offer, on the ground that it contradicted, or altered the terms of the lease. Held, that this wás error-, and the evidence should have been admitted.
    January 24th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunket and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 87.
    Covenant by Edward Shippen and J. L. Harmer, executors of the will of Robert E. Gray, deceased, against Elisha D. Whitney. The material facts will he found in the opinion of this court. ,
    At the trial, before Peirce, J., the defendant made the following offers of testimony, all of which the court overruled :
    1. To prove, by Thomas J. Martin, that the brewery premises were surrendered by Whitney, the defendant, in much better repair at the end of the lease than they were when leased by Gray to Martin.
    2. To prove, by the same witness, an agreement between the lessor, Gray, and Whitney, made on or about the 29th of November 1867, that said Whitney should be the owner of and might remove, at the end of the lease, all the articles which he did remove from the brewery premises.
    3. To prove, by Edward B. Schnider, that a certain paper, then and there produced and identified by the witness, dated November 13th 1867, was an inventory of the property at that time on the brewery premises.; that the articles therein mentioned belonged to Thomas J. Martin, and that they were sold by him to Mr. Whitney, the defendant, between the 13th and 29th day of November 1867, with the consent of Gray, the lessor.
    4. To prove by the same witness, that in the month of November 1867, Martin, the lessee, with the consent of Gray, the lessor, offered to sell to Whitney his unexpired term in the brewery, and certain articles of property therein contained, excluding those mentioned in the lease, but including those removed by Whitney, and claimed for in this suit for $25,000; that Whitney informed Gray that he was willing to purchase said articles at that price if he could remove them at the end of the term, and that Gray agreed with Whitney that if he bought the articles from Martin and took an assignment of the lease, said articles should be his property, and he should have the right to remove them at the end of the term, and that Whitney, thereupon and by reason of said agreement, purchased said articles from Martin, and paid him $25,000 for them, and took an assignment of the lease, dated November 29th 1867, the said Gray being a party to said assignment also.
    In the general charge the court, inter alia, said :
    “ By the lease in this case it is stipulated in paragraphs 3 and 4 as follows: ‘ 3. The lessee for himself, his heirs, executors, administrators and assigns, covenants and agrees with the lessor, his heirs, executors, administrators and assigns, that he will pay the said yearly rent in equal monthly portions as aforesaid, when and as the same accrues and becomes payable. That he will do all requisite or necessary repairs to the said premises and appurtenances, including the machinery, &c., at any time upon the premises, at his own proper cost and charges, and that in like manner he will pay all expenses incurred by reason of the said brewing business, and at the expiration of the term will deliver up peaceable possession of the said premises and appurtenances to the lessor in good tenant-able condition for use as a brewery, reasonable wear and tear excepted.’
    “ ‘ 4. Should the lessee make any alterations or improvements of the said premises and appurtenances demised, the same are not to he removed by him, but shall belong and bé surrendered to the lessor at the end of the term.’
    “ The object of these clauses of the léase appears to me to be that, as the premises were let as a brewery they should remain as such. I take these clauses to mean that if any alterations were made by the tenant they should be left on the premises; and I instruct you that the meaning of these clauses is, if there were any alterations or substitutions of machinery made they were to be left by the tenant.”
    The verdict was for the plaintiffs for $1666.52. The defendant took this writ, the errors assigned being first, second, third and fourth, the overruling the foregoing offers of testimony respectively, and fifth, the portions of the charge noted.

      W. S. Price, for plaintiff in error.
    The testimony of Schnider was overruled upon the assumption that it contradicted the terms of the lease. This rule applies only to parties to the instrument their representatives claiming for or under them, but not to strangers to the instrument: Krider v. Lafferty, 1 Whart. 303; Commonwealth v. Contner, 9 Harris 272. If Whitney purchased from Martin with the consent and under the agreement with Gray, either immediately before he became a party to the assignment of the lease, or with a view to taking such an assignment, then his undertaking in the assignment “ to assume and perform all the covenants in the said lease to be by T. J. Martin done and performed,” should be construed in the light of what had so recently taken place between Gray and himself, upon the faith of which he had paid a large sum of money. Moreover, it is in the power of the court to reform that provision in the assignment, if necessary, and it be not according to the terms of the agreement of Gray in the course of a transaction in which the assignment of the lease formed but a part.

      George Junkin, for defendants in error.
    Martin was incompetent as a witness: McFerren v. Iron Go., 26 P. F. Smith 188 ; Karns v. Tanner, 16 Id. 297; Taylor v. Kelly, 30 Id. 95; Arthurs v. King, 3 Norris 530; Hanna v. Wray, 27 P. F. Smith 27.
    The offer by Schnider was to show negotiations for the lease and a previous parol agreement diametrically opposite to that in the lease and assignment. ,
    The tenant stripped the brewery of the improvements he had made, and left it in such a condition that the business of brewing could not be conducted therein.
   Mr. Justice Gordon

delivered the opinion of the court, February 10th 1879.

Robert E. Gray, in his own right, and as trustee for his sister, Elizabeth White, in his lifetime, leased certain premises in the city of Philadelphia, known as Gray’s Brewery, for the term of seven years, commencing March 1st 1866, to Thomas J. Martin. In this lease was the following stipulation : “ Should the lessee make any alterations or improvements of the said premises or appurtenances demised, the same are not to be removed by him, but shall belong and be surrendered to the lessor at the end of the term.” At the time Martin took possession of the property, there were upon it a steam-engine and boiler and such fixtures and utensils as were necessary for the purposes of a brewery. He, however, for his own purposes, introduced certain new machinery, worth, it is said, some $40,000, without, however, disturbing any of the old fixtures, except certain coppers, which were removed with the assent of the lessor.

So matters remained until the 29th of November 1867, when this lease, by a writing under seal, was' assigned to the- defendant Whitney, he taking upon himself the covenants of the original lease.

Now, among other breaches of his covenants, that have been charged against the defendant, is this, that he did, at the conclusion of his tenancy, remove and take away from the premises certain fixtures and appurtenances thereunto belonging, to wit: one false bottom and crib for mash-tub, five copper temperators, one Gifford injector, one mercury steam-guage and three guage-cocks, altogether of the value of $3000, and converted and disposed of the same to his own use, knowing the said fixtures to be the property of the plaintiffs, and of right to appertain and belong to the demised premises. To meet this charge the defendant made certain offers of proof, to be sustained by the testimony of a disinterested witness, Edward B. Schnider, to the effect following: “that in the month of November 1867, Thomas J. Martin, the lessee, with the consent of Robert E. Gray, the lessor, offered to sell to E. D. Whitney his unexpired term in the brewery, and certain articles of property therein contained, excluding those mentioned in the lease, but including those removed by Mr. Whitney, and claimed for in this suit, for $25,000; that Whitney informed Gray that he was willing to purchase said articles at that price if he could remove them at the end of the term, and that Gray agreed with Whitney that if he bought the articles from Martin and took an assignment of the lease, said articles should be his property and he should have the right to remove them at the end of the term; and that Whitney thereupon, and by reason of said agreement, purchased said articles from Martin and paid him $25,000 for them, and took an assignment of the lease, dated November 29th 1867, the said Gray being a party to said assignment also.” The learned judge of the court below overruled this offer, for the reason, as we understand it, that it tended to contradict'or alter the terms of the lease, and the parol negotiations, recited in the offer, not occurring at the very time of the execution of the assignment, could not be used for the purpose proposed. As a general proposition the rule stated in the above deliverance might be regarded as sound, but as applied to the present case we think it fails for want of applicability. For the purposes of this argument we must take the offer as proved, and so it comes to just this, that Whitney bought and paid for certain property which both Martin and Gray agreed to treat as personal. Martin wished to sell, Whitney was willing to buy, but in order to settle any question as to Martin’s right, to be relieved of all doubt or controversy about whether these articles were to be considered fixtures or not, he applies to the lessor himself, and is by him assured that if he purchases this property from Martin, and takes an assignment of the lease the articles thus purchased should be his property and he should have the right to remove them at the end of the term. In pursuance of this agreement Whitney did purchase the property, did take an assignment of the lease, and so, in consideration thereof, became Gray’s tenant. .Thus it was that, so far as concerned this transaction, the assignment itself was but part of a parol contract, and, but as such, it would never have had an existence. The parties themselves, wisely, in this manner intended to settle all disputes as to the status and character of this property. Martin proposed to sell it as his own personalty; Gray agreed he should do so and Whitney under this arrangement bought. This, when closed up, was the end of that transaction; when Whitney paid Martin and executed the assignment, the articles in controversy, if so be that they were included in the sale, passed to the defendant as his own personal property; Martin had so agreed, and Gray had so agreed, and as there was no one else to object that was the end of the matter. Thus it is that the parol contract does in no way tend to affect or modify the assignment, for, as we have already said, the assignment was part of that contract. But suppose it were a question whether the articles in controversy were covered by the words “alterations and improvements” as found in the lease, this question after all is one of fact, not of lawT, and who so competent to pass upon it as the parties themselves ? And they having passed upon and settled the matter, and having acted upon their own settlement in good faith, good faith requires that it should remain undisturbed. Whitney covenanted not to remove any “improvements or alterations” which he might make upon the premises, and there is no complaint that in this he violated his covenant; the head and front of his offending is that when he quit the brewery he took with him property which he bought as personal property and which Gray agreed he should remove when the lease expired.

This, in effect, sustains the defendant’s third, fourth and fifth assignments of error: the first and second are not sustained.

The assignment, in express terms, holds Martin to his covenants in the lease, and the lessor being dead, he, Martin, cannot be permitted to testify.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Fidelity Insurance and Trust Co. versus Miller.
    1. Debt will not lie on a mortgage which although it recites an indebtedness does not contain an express covenant to pay.
    2. Such an instrument is not one for the payment of money so as to bring it within the operation of the Affidavit of Defence Law.
    January 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1878, No. 137.
    Debt by the Fidelity Insurance Trust and Safe Deposit Company, administrator d. b. n. c. t. a. of Charles W. Warnick, deceased, against Henry W. Miller. ,
    The plaintiff filed a copy of a mortgage, which in substance was as follows:
    “ Whereas, The said Plenty W. Miller is justly and truly indebted to the said Charles W. Warnick, in the sum of twenty-two hundred dollars, payable one day after date of this mortgage; now this indenture witnesseth; that the said Henry W. Miller, for and in consideration of the aforesaid debt or sum of twenty-two hundred dollars, and for the better securing the payment of the same unto the said Charles W. Warnick, his executors, administrators and assigns, as and for and in consideration of the further sum of one dollar unto him well and truly paid by the said Charles W. War-nick, before the sealing and delivering hereof, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over unto the said Charles W. War-nick, his executors, administrators and assigns, the whole of the steamboat called ‘John Griffith,’ together with all her steam-engines, boilers, machinery, furniture, &c., to have and to hold the same unto the said Charles W. Warnick, his executors, administrators and assigns, to' and for his and their only proper use and behoof for ever.
    “Provided, however, nevertheless, That if the said Henry W. Miller, his executors, administrators and assigns, do and shall well and truly pay or cause to be paid unto said Charles W. Warnick, his executors, administrators or assigns, the aforesaid debt or sum of twenty-two hundred dollars, on the day and at the time herein-before mentioned and appointed for payment of the same, without any fraud or further delay, then this obligation shall cease and determine and become void, anything hereinbefore contained to the contrary notwithstanding.
    “And the said Henry W. Miller, for himself, his executors, administrators and assigns, doth hereby covenant and agree to and with the said Charles W. Warnick, his executors, administrators and assigns, that at the execution of these presents, he, the said Henry W. Miller, is the true and lawful owner of the steamboat ‘John Griffith,’ together with her steam-engines, boilers, machinery, masts, yards, sails, rigging, anchors, cables, boats, tackle, apparel and appurtenances, and that he now has full right and authority to mortgage or dispose of the same, freed from and clear, of all claims, encumbrances or demands whatsoever. And also that in case default shall be made in the payment of the twenty-two hundred dollars, as hereinbefore set'forth, at maturity, that then and from henceforth it shall and may be lawful for the said Charles W. Warnick to take possession of the said steamboat, ‘John Griffith,’ and expose her, together with all her steam-engines, boilers, machinery, &c., at public or private sale, at his discretion.”
    The defendant, in an affidavit of defence inter alia, averred, “ that deponent is not in any way personally liable on the instrument filed, it being merely security for a debt. No other evidence of indebtedness was filed.”
    The court in an opinion by Ludlow, P. J., said:

      “ The instrument upon which the plaintiff asks us to grant a judgment for want of an affidavit of defence is simply a transfer of title as security for the payment of money, with no absolute condition for the payment thereof.
    “ This is not a stronger case than the only one we have been able to find touching the subject in Pennsylvania.
    “ In Scott v. Fields, 7 Watts 360, the case to which we refer, a bond was acknowledged, and that was an instrument for the payment of money. Here there is simply and merely an acknowledgment of a debt. We are not informed what the original instrument was, if any, creating the debt secured by this paper. Whatever it was, it could not have been stronger than the bond acknowledged (as is said by the court) ‘ for the payment of a sum of money by instalmentsand as in that instance, it was held that ‘ no contract of borrowing or loan, can be implied in law from a mortgage as the foundation of the action when the contract is express and formal,’ so here in this instrument, where there is a mere recital of an obligation, a paper in the nature of a mortgage, no judgment ought to be granted because the instrument does not appear to be an instrument for the payment of money, and is not, therefore, within the original Affidavit of Defence Law or any of its supplements.”
    The court discharged the rule and the plaintiff took this writ, and assigned this action for error.

      A. JB. Q-uilbert and A. D. Campbell, for plaintiff in error.
    An action of debt againt the defendant lies upon the instrument filed, because the deed fully and clearly sets forth a transaction upon which the law places a personal obligation: Conway v. Alexander, 7 Cranch 218; Chitty on Contracts 878; Yates v. Aston, 4 Q. B. 182; 2 Chitty on Pleading 214, n. t.

    The defendant is bound by the reeital contained in his deed: Parsons on Contracts, ed. 1873, *511. No precise form of words is necessary even in a specialty. Thus words of reeital in a- deed will constitute an agreement between the parties on which an action of covenant may be maintained (2 Leon. 122), and the recital in a deed of a previous agreement is equivalent to a confirmation and renewal of the agreement: Barfoot v. Freswell, 3 Keble 465; Saltoun v. Houstoun, 1 Bing. 433; Sampson v. Easterby, 9 B. & C. 505; Price on Limitations 200; Espinassee’s Nisi Prius *268; Paschall v. Passmore, 3 Harris 307; Truitt v. Spotts, 6 Norris 339.
    Debt lies upon an acknowledgment of indebtedness contained or recited in a specialty given as collateral security: King v. King, 1 P. & W. 15; Thomas v. Terry, Gilbert’s Eq. Rep. 110; Chitty’s Eq. Dig. 1483; Elder v. Rouse, 15 Wend. 218; Montgomery v. St. Stephens’s Church, 4 W. & S. 542 ; Hart v. Burton, 7 Marsh. (Ky.) 322; Coleman v. Van Rensselaer, 44 Howard’s Prac. 368.
    In Scott v. Fields, 7 Watts 360, the mortgage contained neither a covenant for payment nor an acknowledgment of a debt. Here there is an express admission of indebtedness.
    No appearance for defendant in error.
   The judgment of the Supreme Court was entered, February 17th 1879,

Per Curiam.

That the mortgage containing a recital of indebtedness to the intestate would have been evidence in the suit is not to be doubted; but could an action be maintained on the instrument? This is necessary to entitle the party to a judgment for want of an affidavit of defence. In Scott v. Fields, 7 Watts 360, the action was upon a mortgage containing an unequivocal acknowledgment of a bond for the debt. In was held in that case, that without an express covenant to pay, no action could be maintained on the mortgage.

Judgment affirmed.


text:
    Gallagher’s Appeal.
    Where the account of an administrator has been confirmed, he has no such interest in the estate as will enable him to appeal from an order to pay over the balance in his hands.
    January 31st 1879.
    Before Mercur, Paxson, Gordon, Woodward and Trunkby, JJ. Sharswood, C. J., absent.
    Appeal from the Orphans’ Court of PMladepMa county: Of January Term 1879, No. 33. ■
    Appeal of William J. Gallagher, administrator of the estate of George Woods, deceased, from the decree of the court awarding the balance of the estate in the hands of said administrator, to the widow of said decedent.
    The court, on May 25th 1878, confirmed absolutely the account of said administrator. On June 15th the adjudication of the account was opened by the court, and on July 13th a rule was granted on all the heirs, &c., to show cause why an order should not be made upon the administrator to pay over the balance in his hands to the widow of decedent. This rule was made returnable on September 21st 1878, and ón that day, after due proof of advertisement, an order in conformity with the rule was made on the administrator. From this order he took this appeal, alleging that the court erred in making the order while the adjudication was still open. The order opening the adjudication was rescinded after the appeal was taken.

      H. O. Titus and B. L. Temple, for appellant.
    The Act of 6th April 1833, sect. 1, Purd. 809, provides for the distribution of intestates’ estates who leave husband or wife, but no known heirs or other kindred. It directs that “after final settlement of the administration account of such intestate,” upon petition, a rule to show cause shall be granted and published, and if any alleged heir shall appear, whose claim is contested, then the court may direct an issue or may take such order therein as they shall think proper.
    In this case the said rule was 'granted and decree made prematurely, and before final settlement of the administration account; for the order of June 15th 1878, opening the adjudication,rwas in force during these proceedings, and still in force at the time of this appeal. It is, therefore, submitted that this record and orderiwould not protect this appellant in paying over the estate to the widow.
    Further, at time of said decree the claim of the alleged heir was pending and undetermined.

      Charles Davis, for appellee.
    The appellant, being an administrator, is not interested in the distribution of the fund, and is not entitled to an appeal: Mellon’s Appeal, 8 Casey 121; Stineman’s Appeal, 10 Id. 394; Craig’s Appeal, 2 Wright 330 ; McAllister’s Appeal, 9 P. F. Smith 204; Tiernan’s Estate, 33 Leg. Int. 24.
   The judgment of the Supreme Court was entered, February 10th 1879,

Per Curiam.

This is an appeal by the administrator of the estate of George Woods from the decree of the Orphans’ Court, awarding the residue of the estate of the decedent to his widow. His account having been confirmed, he has no interest as such administrator in any decree of distribution the court may make of the fund. He is not so far the representative of creditors as to authorize him to interfere in the distribution. His full duty therein will be discharged by paying over the fund in pursuance of the decree of the court. He therefore has no standing which will permit him to change or delay the execution of the decree distributing the fund.

The appeal is therefore quashed.


author: Mr. Justice Woodward

text:
    Philadelphia and Reading Railroad Co. versus Adams.
    1. A row-boat is not within the “ steering and sailing rules,” embodied in the navigation laws of the United States, and a steamer is not bound to change her course for such a boat.
    2. A steamer has a right to assume that such a boat is properly manned and equipped, and that the usual precautions will be taken and movements made by those in charge of her to escape collision.
    3. The reason of the rule, that a steamer must change her course for a sailing vessel, because she has superior powers of locomotion to the sailing vessel, does not apply to a row-boat, which has adequate means of locomotion to enable it to avoid a collision.
    4. Where a steamer collided with a row-boat, it was error to instruct the jury “ that the accident which could excuse the party who committed the injury must be such inevitable accident as human foresight under the circumstances could not have prevented.”
    5. Although the court by affirming a point has stated the measure of damages correctly, it was error to again refer to the matter in the general charge in such a broad way as could only have been received as an intimation that the damages were to be assessed without any rule of law whatever.
    February 3d 1879.
    Before Sharswood, C. J., Mbrcur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January.Term 1878, No. 189.
    Case by Lena Adams against the Philadelphia and Reading Railroad Company.
    The narr. contained a single count, and alleged that Frank Adams, plaintiff’s son, was in a boat on the Delaware river, and was rowing the same in a careful manner; that defendant had a' steamship called the “Leopard,” under the care of its servants; that the defendant took such bad care thereof that it ran foul of and struck said boat, whereby said Adams was thrown into the water and was drowned.
    Plea, “Not guilty.” The trial was before Finletter, J.
    The facts and legal questions raised are stated in the opinion of this court.
    The verdict was for the plaintiff, for $2700. The railroad company took this writ of error.

      Thomas Hart, Jr., for plaintiff in error.
    It was error to instruct the jury that to relieve from responsibility the accident must be such an one as no human foresight could prevent. This rule is too stringent. Inevitable accident is that which could net have been prevented by the exercise of ordinary caution and maritime skill: The Virgil, 2 W. Rob. 205; The Marpesia, L. R. 4 P. C. 212; The Europa, 14 Jurist 629; Kelsey v. Barney, 12 N. Y. 425. The admiralty rule, that a steamer shall keep out of the way of a sailing vessel, certainly does not apply to a row-boat. The reason of the rule is that a sailing vessel has not the same means of locomotion that the steamer has, and that the latter must therefore give way to the former; but there is no occasion for a steamer to avoid a row-boat, whose course can readily be changed: 1 Parsons’ Ship. 566; Lockwood v. Lashell, 7 Harris 344; Trinity House Rules of 1840; City of London, 4 Notes of Cases 40; Ward v. Armstrong, 14 111. 283; Pearce v. Page, 24 How. 228; Bigley v. Williams, 30 P. F. Smith 107; Holmes v. Watson, 5 Casey 459; Beck v. East River Ferry Co., 6 Robertson (N. Y.) 82; Ince v. Ferry Co., 106 Mass. 149; Beach v. Parmeter, 11 Harris 196; Grier v. Sampson, 3 Casey 183.
    A steamer is not required to take precautions when there is no apparent danger: The Scotia, 14 Wall. 170; or to slacken her speed until a collision is imminent: The Scotia, supra; The Free State, 1 Otto 200; Beck v. Ferry Co., supra.

    It was to be supposed that the boat would move out of the steamer’s way. The steamer had the superior right of navigation, even had the men in the boat been exercising the right of navigation : Cobb v. Bennett, 25 P. F. Smith 326.
    The instruction as to damages was too broad: Railroad Co. v. Books, 7 P. F. Smith 339; Railroad Co. v. Kelly, 7 Casey 372; Railroad Co. v. Ogier, 11 Id. 60.

      James D. Lee and Pierce Archer, Jr., for defendant in error.—
    Steamboats having means to avoid injury which other boats do not possess, the law exacts of them exertions proportionate to their powers: Holmes v. Watson, 5 Casey 457; The Tug Sampson, 3 Am. L. Reg. 337; S. c. 11 Pitts. Leg. Jour. 183.
    British Orders in Council, or Trinity House Rules, do not control- American vessels in our waters: The Scotia, supra.

   Mr. Justice Woodward

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

A collision occurred on the afternoon of the 3d of July 1876, between the steam collier “Leopard,"’ belonging to the defendants below, and a row-boat in which there were four young men, of whom Frank Adams, the son of the plaintiff below, was one. The steamer was going down the Delaware river, on an ebb tide, at a rate of speed variously stated as from eight to twelve miles an hour. The boat was near the middle of the river, between the city of Philadelphia and the New Jersey shore, when the steamer approached it. Two of the men in it, one after the other, went into the water to swim. John Trapp was swimming when the steamer wras first seen. From this point the testimony was conflicting. That of the plaintiff was to the effect that when the steamer was within fifty or sixty yards of the boat the men in it tried to get away, but could not do so on account of the tide. That of the defendants tended to show that no effort at all was made to move from the channel in which the steamer was coming down. It would seem that the boat was managed with difficulty, and that there was a deficiency of oars. As the steamer reached or was about to reach them, the men jumped into the water, and Adams and Casper Werner were drowned. There was testimony that the boat was abandoned at the instant of the collision, and there was testimony that it was abandoned when the steamer was ten or fifteen feet distant. This suit was brought by the plaintiff to recover damages for the injury caused her by the death of her son. The exigencies of this judgment do not require that the facts developed should be analyzed, or even detailed. The discussion will be confined to what appear to be the vital legal points raised on the trial and argued here.

In the second point of the counsel for the defendants, the court were asked to charge : “If the jury believe that when the boat in which the men were was first seen to be in the steamer’s way, the captain of the steamer whistled and changed his helm, and successively stopped and reversed his engine, this was all he was bound to do, or could do, to avoid collision, and although the steamer, whether from her momentum or from the tide, may not have been able to stop still before reaching the boat, the defendant’s servants were not for that reason negligent, and the verdict should be for the defendants.” The point was peremptorily refused. It was defective, perhaps, in the absence of a single qualification. The plaintiff had alleged in part of her case that the captain had not kept an adequate lookout. In connection with the answer to this point, it is necessary to examine the grounds of other errors assigned by the defendants. The jury were instructed in the answer to the plaintiff’s tenth point, that “if the steam vessel had a proper lookout and a man at the wheel, they were bound to have seen the sailing boat in their path, and if they did see it and continued on their course without changing or stopping the vessel, it is evidence of negligence on their part,” subject to the qualification, “if the jury,” in the language of the court, should “find the facts mentioned contributed to the accident.”

In answering the plaintiff’s twelfth point the court ruled that “ if the steamer did see, or ought to have seen the sailing boat in time to avoid the collision, and did not avoid it, she was guilty of negligence, and the verdict should be for the plaintiff.” The thirteenth point, that “ if the steam vessel did see, or could by a proper lookout have seen the row-boat a square off, and if that was distance sufficient to allow her to change her course, or stop so as to avoid collision, she was bound to do so, and failing to do so, she was guilty of negligence;” and the fourteenth point, that “the effort to stop the steamer, if not made soon enough to be successful, if she saw or ought to have seen the row-boat, will not excuse such negligence,” were also affirmed. The errors in which these rulings are specified present the most prominent question to be considered. The fifteenth assignment alleges error in the refusal of the court to affirm the sixth point of the defendants, “ that it was the duty of those in charge of the row-boat to keep out of the steamer’s way,” and as the evidence showed “ they did not do so, the plaintiff could not recover.” The point assumed the ability of the crew of the boat to move. The plaintiff alleged that the men were not able to get out of the channel; that the captain of the steamer ought to have regarded this inability; and that it was for the jury to say whether the boat could have been moved or not.

Were the men in the boat within the protection of the “ Steering and Sailing Rules” embodied in the navigation laws of the United States ? That as between a steamer and a sailing vessel, the steamer shall give way and the sailing vessel shall keep its course, and that as between sailing vessels, one that is going free shall give way to one that is close-hauled, are regulations corresponding with well-settled regulations for the use of public highways on the land. Rut does a steamer owe any such duty to a row-boat ? As usually equipped and manned, such a boat is moved with greater facility and is more within the control of the crew than the steamer itself. The collier of the defendants was in the channel of the Delaware for the purposes and in the prosecution of a lawful business, and had the right, in absence of conditions creating duties to others, to maintain its course. Ordinarily, the crew of a row-boat can remove it from the track of danger by a movement or two of its oars, and in scarcely an appreciable interval of time. The captain of a steamer passing down the channel would have the right to assume that the boat would be equipped in the usual way, and that the ordinary precautions would be taken and the ordinary movements made. A crippled condition of the boat, inadequate appliances, or the inability of the crew to escape collision, shown to have been- known or apparent to the captain, would change his relations and responsibilities at once. But is it possible that the bare fact that the boat was in the channel required that the course of the steamer should be altered or its speed checked before it became manifest that the danger of collision was .impending ? Principles have long been settled which are inconsistent with those under which this cause was tried. It was declared in Cobb v. Bennett, 25 P. E. Smith 326, that a vessel may hold her course in a navigable stream without regard to a fisherman’s net, if the master acts without wantonness or malice; and that while the right of fishery is acknowledged, it is subordinate to the right of navigation. In Beach v. Parmeter, 11 Harris 196, damages were claimed for injury to the leg of a horse produced by collision with a buggy which, in passing the horse, kept its course in the beaten track of the highway. It was said in the opinion here that “ where a road is narrow, and there is difficulty in passing, if a horseman can turn out without danger to himself or beast, and the buggy cannot be turned without incurring danger, it is the duty of the former to give way.” And in Grier v. Sampson, 3 Casey 183, it was held that while it is the general custom in this country for persons meeting on a highway to pass to the right, yet when a horseman or’ the driver of a light carriage meets a heavily laden team it is his duty to give way and leave the choice of the road to the more unwieldy vehicle. The cases of the “Scotia,” 14 Wall. 170, and of the “Free State,” 1 Otto 200, decided that it is the duty of a steamer to keep, out of the way of a sailing vessel; that this duty implies a correlative obligation on the part of the sailing vessel to keep her course, and to do nothing to mislead; that the steamer is required to take no precautions when there is no apparent danger ; and that where a steam vessel is approaching another vessel, and where a collision might he produced by a departure of the latter from the rules of navigation, the former vessel is not bound to slacken her speed, or to stop and reverse. Up to the moment when the captain of the “Leopard” had reasonable ground to apprehend a collision, he was not bound to change his course or to take other precautions to protect the boat from a danger which it must have seemed entirely practicable for the crew to avert.

In the fourth assignment of error complaint is made of the affirmance of the plaintiff’s sixth point, “ that the accident which will excuse the party who committed the injury must be such inevitable accident, as human foresight, under the circumstances, could not have prevented.” Just how deeply into the minds of a jury such an instruction might have struck, can only be conjectured. It was an unfortunate use of terms, although their misleading tendencies may have been modified by the qualifying phrase “ under the circumstances.” The jury would have been warranted in rendering a verdict for the defendants, if they had found that the “accident” had occurred notwithstanding the careful, prudent and energetic use of all needed appliances by competent, earnest and faithful officers. To hold one whose act has injured another, excusable only when the “accident” was one which the keenest human intelligence could not anticipate, w'ould be to carry the law of negligence far beyond the rule which demands due skill, prudence, care and diligence proportioned to the requirements of a particular emergency. In Beach v. Parmeter, supra, the president of the Common Pleas had charged that the defendant was not liable “if the collision was entirely accidental,” and if the injury was “the result of the accident.” It was said here, in affirming the judgment, that the judge “must have meant inevitable accident, such as no human foresight could avert.” Applied as the words were in that case and to its circumstances, they could, perhaps, neither help nor hurt, but it is believed that as a formula for the instruction of a jury, its adoption would prove to be always unsafe.

In the plaintiff’s twentieth point, the measure of damages was defined with accuracy, and the point was affirmed. But in the general charge, the subject was referred to the jury in the broadest possible way. The court said: “It would be impossible to fix any rule or standard by which damages of this kind could be estimated. They depend upon conditions of life * * * of which the jury will know about as perfectly, * * * no doubt as any lawgiver, or any one whose duty it is to instruct the jury on the purposes of the law. Whatever it may be, it should be governed by a disposition * * * to arrive, if possible, at a fair compensation, and to do right between these parties, just as each of us would expect under like circumstances, if our cause should be viewed and judged by a jury.” This could only have been received as an intimation that the damages were to be assessed without the application of any rule of law whatever. In the Pennsylvania Railroad Co. v. Ogier, 11 Casey 60, the question of damages ivas submitted to the “ fair and reasonable discretion” of the jury, “based upon the law and the evidence.” Latitude at least as great, was given here, as was given either in Railroad Co. v. Kelly, 7 Casey 372, or in Railroad Co. v. Books, 7 P. F. Smith 339, in both of which cases the judgments were reversed for errors in unguarded instructions relating to assessments of damages.

Without detailed reference to the fifteen assignments of 'error, what has been said covers the essential points of controversy in this cause, which are believed to have been improvidently determined.

Judgment reversed, and venire facias de novo awarded.


author: Chief Justice Sharswood

text:
    Thomson’s Appeal.
    Testator gave and bequeathed all his estate, real and personal, to trustees, “ the income from which shall be devoted to purposes thereinafter mentioned, with power to sell any of his property and reinvest the proceeds whenever, in the judgment of the trustees, the interest of the trust will be promoted.” Immediately thereafter he directed that so much of the proceeds of the said property shall be paid to his widow as she may deem “ necessary for the maintenance of herself and his niece; they living in such style as she may think best to promote their happiness and comfort during her lifetime.” After several annuities the testator then declared that the trustees should appropriate the remainder of the net income of his estate, after the payments specified, to a charitable purpose. In a codicil the testator desires his niece to be treated and regarded as if she really was his child, “ receiving during her lifetime such income from my estate as if she really was my child,” and in a second codicil directed that she should take “ out of the income” of his estate all that “ she requires to render her more than comfortable in her housekeeping during her lifetime.” It was contended that by his use of the word “ proceeds” the testator intended that the widow might take both principal and income of his estate if, in her discretion, she deemed it necessary to enable her to live “ as she may think best to promote their happiness and comfort during her lifetime.” Held, that it was impossible to refer the word “ proceeds” to anything but the income; that the testator considered himself throughout the will and codicils as dealing only with the income of the estate, the corpus or principal being vested in the trustees for his ultimate purpose, the charity.

      February 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxscn, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 97.
    The appeal of Lavinia F. Thomson from the decree of the court dismissing her exceptions to the supplemental report of the auditor in distribution, in the estate of J. Edgar Thomson, deceased, and in confirming said report.
    The administrators of the estate of said decedent filed in the Orphans’ Court of Philadelphia their accounts, which by the consent of the parties in interest were referred to Joseph A. Clay, Esq., as auditor, with power to audit, settle and adjust the same, and to make distribution of the money in the hands of the accountant.
    Mr. Thomson died on May 27 th 1874, leaving the following will and codicils:
    “I, J. Edgar Thomson, of the city of Philadelphia, and state of Pennsylvania, do make this my last will and testament. I give and bequeath all of my real and personal estate, except household furniture, to Lavinia F. Thomson, George B. Roberts and William M. Spackman, in trust: the income from which shall be devoted to the purposes hereinafter mentioned.
    “ The said trustees to have full power to sell any of my property and reinvest the proceeds whenever in their judgment the interest of the trust will be promoted thereby.
    “ The estate to be subject to the following payments :
    “First. To so much of the proceeds of said property as my dearly beloved wife, Lavinia F. Thomson, may deem necessary for the maintenance of herself and my dear niece, Charlotte F. Foster, they living in such style as my said wife may think best to promote their happiness and comfort during her lifetime. If my niece, Charlotte F. Foster, should survive my wife, then I direct that there shall be paid to her as long as she may live, the sum of two thousand dollars per annum. To my wife, Lavinia F. Thomson, I give absolutely all of my household furniture, books and ornaments.
    “Second. To each of my sisters, Anna and Mary Adeline-Thomson, during the life of each of them, the sum of one hundred dollars per month.
    “ Third. To my nephe-w, Edgar Levis Thomson, as long as he may live, the sum of one hundred and fifty dollars ($150) to be paid to him monthly.
    “ Fourth. To his wife, Hattie B. Thomson, all sums that may be charged against her upon my books at the time of my decease.
    “Fifth. To all the household servants that may be in my employment at the time of my decease, as soon as may be convenient to the trustees, the sum of two dollars and fifty cents per month for each month that each of them may have been in my service, as an acknowledgment of their faithfulness.

      “ The said trustees to appropriate the remainder of the net income of my estate after the payments above specified, or so much of it as may be judiciously applied thereto, to the education and maintenance of female orphans of railway employees whose fathers may have been killed while in the discharge of their duties: preference to be given, first, to the orphans of the employees engaged upon the Pennsylvania Railroad; second, to those of the Georgia Railroad, between Augusta and Atlanta, Georgia; third, to those of the lines controlled by the Pennsylvania Railroad Company by lease or otherwise ; fourth, to those of the employees of any other railroad company of the United States of America.
    “ If application shall not be made from these sources in.number sufficient to consume the annual income of the trust, the said trustees may at their option reinvest the surplus, or receive the female orphans of any other employees of railway companies of the United State upon the same terms and conditions as the orphans of those killed in the service of the company.
    “ The said trustees shall prescribe all rules and regulations that may be deemed necessary to carry out the objects of this trust, and rent or erect such buildings as may be required for said purposes. They may receive bequests or donations to increase the means to be applied to the objects of said trust.
    “ The said trustees may at any time add to their number, not exceeding six additional members, who shall perpetuate their existence by filling all vacancies that may occur in their number from death, resignation or otherwise, by electing such persons as they may deem best suited to carry out the objects of this trust, by a vote of majority of two-thirds of their number, any person, male or female, of high character for integrity and sound judgment.
    In witness whereof, I have hereunto set my hand and seal, this twentieth day of December, Anno Domini one thousand eight hundred and seventy-one. J. Edgar Thomson, [seal.]

      “ Signed, sealed, published and declared by the above-named J. Edgar Thomson, as and for his last will and testament, in the presence of us, who in his presence and in the presence of each other and at his request, have hereunto subscribed our names as witnesses.
    Herman J. Lombaert,
    Henry C. Sbackman.
    By a codicil the testator directed:
    “ This is a codicil to my last will and testament, made in sickness of body, but with a clear understanding and full testamentary intention. I desire my dear niece, Lottie Foster, but to w'hom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my child, receiving during her lifetime such income from my estate as if she were really my child, and I postpone the operation of the trusts of my will so as fully to effect this result until her decease, upon which event they are forthwith to take full effect as expressed in the will.

      “ Witness my hand and seal, this twenty-fourth day of May, A. D. 1874. (Written with lead pencil.)
    J. Edgar Thomson, [seal.]
    “ Witnesses:
    Jambs Kitchen,
    C. B. Smith.
    “ J. Edgar Thomson by Theo. Cuyler the name being thus placed at his request, he being too feeble to sign the same, except in pencil as above.”
    And by a second codicil interpreted the foregoing codicil as follows :
    “ The codicil which I added to my will the other night, May 24th, means that I wish my niece, Charlotte F. Foster, to be considered as my daughter, and to take out of the income of my estate all that she requires to render her more than comfortable in her housekeeping during her lifetime.
    “ I do not desire to postpone by it the operations of the trusts of my will, except so far as may be necessary to secure the above object.
    “Philadelphia, May 26th 1874.
    O. B. Smith,
    “ Witness: For J. Edgar Thomson.
    • B. B. McNally.
    The name being thus written, he being too weak to sign himself.”
    It was claimed on the part of the widow, Mrs. Thomson, that she w'as entitled to the principal and income of the estate, if she deemed it necessary to enable herself and daughter to live in the style they thought best to promote her own and her niece’s happiness and comfort during her lifetime, this claim being based on the use of the word “proceeds” in that part of testator’s will which directs that payment should be made to her of so much of the proceeds of said property as she may deem necessary, &c.
    The following are the material portions of the auditor’s report, bearing upon this question :
    “ The intentions of the testator, to any one examining the will dispassionately, are obvious enough. He designed to found a charity for the orphan children of employees of railroads; while, at the same time, he wished to make ample provision for his wife and niece, for their lives. About this there can be no real question.
    “ To effect his purposes, he gives, in the first place, and by unequivocal words, his entire estate, real and personal, to trustees, with a power to sell. This gift is absolute, and all the other provisions of the will are subordinate to it. He then subjects the estate to ‘ the following payments: first, to so much of the proceeds of said property as my dearly beloved wife, Lavinia Thomson, may deem necessary for the maintenance of herself and my dear niece, Charlotte E. Foster, they living in such style as my said wife may think best to promote their happiness and comfort during their lifetime,’ and if Miss Foster should survive Mrs. Thomson, the testator gives her an annuity of two thousand dollars for life.
    “ This is the first provision to which the absolute devise to the trustees is made subject.
    “Next he gives annuities to his two sisters and his nephew, and absolute legacies to his servants, and these form the second provision, out of the absolute devise. Finally, by the first and second codicils, he desires ‘ his niece, Lottie Foster, to be treated, in law, as if she were really my child;' receiving, during her lifetime, suph income from my estate, as if she were really my child,’ and the operations of the trust are postponed, ‘ so as fully to effect this result, until her decease.’
    “ By the second codicil these provisions' are so modified as to give Miss Foster, who is to be considered as his daughter, the right to take ‘ out of the income of the estate all that she requires to make her more than comfortable in her housekeeping during her life,’ and the postponement of the operations of the trust is only to take place so far ‘as may be necessary to secure the above object.’
    “ Thus, while the provisions of the will itself in favor of Miss Foster were dependent on Mrs. Thomson’s discretion, the appropriations for her by the codicil are totally independent of any power given to the widow, to whom no reference is even made.
    “ The words of the devise to the trustees are unequivocal. They are : ‘ I give all my real and personal estate, except household furniture,’ to the trustees nominatim; ‘the income from which shall be devoted to the purposes hereinafter mentioned.’ These words are apt, and clearly expressed. * * *
    “As to the word ‘proceeds,’ upon which great stress has been laid, it may be taken in its general meaning, to include both capital and income; but this meaning is necessarily subordinate to the general intention of the will, and it is restricted here by the first provision indicating the purposes of the trust. The testator says,
    ‘ the trustees are to appropriate the remainder of the net income, after the payments above specified,’ i. e., the payments to Mrs. Thomson and the annuitants, or ‘so much of it,’ the income, ‘as may be judiciously applied thereto,’ to the education, &c., of the beneficiaries under the trust. The pi’ecedent payments are thus distinctly referred to the income, and the surplus, still of the income, is to be applied to the purposes of the trust. The capital of the proceeds, given to the trustees absolutely, is not disturbed by any of these appropriations. It is, however, conclusive as to the claim founded upon the use of the word in question, that the power of sale conferred upon the trustees is discretionary, and that until it shall be exercised, there can be no proceeds, whatever meaning may be attributed to the word. The claim, therefore, if valid, would be premature, but it cannot be sustained on other grounds. * * *

      “ There is also no foundation for the claim that the will gives Mrs. Thomson a life-estate with a power of disposal of the principal of the will. No trace of such a power is to be found in any part of the will. The limited interest she has in the income has been already demonstrated. She can have, as it appears to the auditor, no right to any part of the principal, much less to appoint the whole capital by will. * * *
    “ To carry out the construction for which the counsel for the ladies contend, would be to enforce artificial rules of law, such as the rule that nothing can be given after a discretionary power of use has been conferred, which often defeat the clearest intentions of a testator. Certainly they should not be extended to a case wrhere such provisions are partial, and where discretionary powers exist which might possibly result in direct conflict.”
    On behalf of Mrs. Thomson, the following among other exceptions were filed, alleging error:—
    1. Because the auditor has decided that Mrs. Thomson, the testator’s widow, does not take the whole personal property under the terms of the will subject to the testator’s debts and legacies, and subject to the'rights of Mrs. Charlotte F. F. Reed. * * *
    8. Because the auditor has decided that Mrs. Thomson and Mrs. Reed are not together entitled to the whole personal property of the testator, subject as aforesaid. * * *
    9. Because the auditor has awarded the balance of the principal to the trustees under the will, to be held by them for purposes of the charitable trust, and not in any way subject to so much of the proceeds thereof as this exceptant deems necessary for the maintenance of herself and of the testator’s niece, although she has designated that amount in accordance with the terms of the will.
    After argument upon these exceptions, the court (Hanna, P. J.), in an opinion, inter alia, said: “ In seeking for the intention of the testator, the cardinal principle must be remembered, that it is to be gathered from the entire will, not from detached clauses, sentences, or words, but the whole must be taken together. This is too familiar to need any citation for its support. Upon a careful consideration of the instrument it will first be noticed that testator vests his entire estate, excepting only his ‘ household furniture, books and ornaments,’ in three trustees, and imposes upon them such duties as pertain to an active trust, with ‘ full power to sell any of my property and re-invest the proceeds whenever in their judgment the interest of the trust will be promoted thereby.’ Testator next subjects his estate in the hands of the trustees to the following payments, or, in other words,, declares the following uses and trusts, and first in natural order of the settlement of the estate, to pay the legacies to his household servants, then, out of the income, to pay the annuities to the sisters and nephew of testator, and then so much as his widow may deem necessary for the maintenance of herself and niece, even if her requirements absorb the whole remaining income, leaving none to be applied to the charitable purposes contemplated.
    “ It was strenuously contended, on behalf of the widow, that she was entitled to the principal and income of the estate, if, in her discretion, the same were necessary to enable herself and niece to live in such style as she ‘ may think best to promote their happiness and comfort during her lifetime,’ the argument being based upon the use by testator of the word ‘ proceeds ’ in the item of the will directing the payment to his wife. Carried to its logical sequence, this view, if correct, would not only destroy the charity for the orphans of railway employees, but also the annuities to the sisters and nephew of the testator. This certainly was never in the mind of testator, and the auditor was correct in holding that the word ‘proceeds’ was employed by him as synonymous with ‘income.’ This is evident from the language used in other portions of the will. In its first clause testator says the ‘income from which,’ i. e., from his real and personal estate, ‘ should be devoted to the purposes hereinafter mentioned.’ Then follows the purposes to which the income is to be applied, and finally the trustees are ‘ to appropriate the remainder of the net income to the maintenance of the charity.’ And in addition it is to be observed that the only absolute bequest to testator’s wife is of his ‘ household furniture, books and ornaments.’ We therefore conclude it is clear that testator vested his estate, real and personal, in the trustees, in trust, to pay, first, out of the income, the legacies; second, the annuities, and the entire remaining income, if required, to his widow, for the support of herself and niece; third, after the death of the widow to pay to testator’s niece an annuity of $2000 for life; fourth, and to apply the remaining income, if any, to the support of the charity. * * *
    “ Now, construing together the will and codicils, and harmonizing those provisions which appear to be contradictory and inconsistent, we think the intention of the testator is clear, that the trustees are entitled to the corpus of the estate, in trust, to pay so much of the income remaining after the payment of the legacies and annuities, as the widow during her life may consider necessary for the maintenance and support of herself and niece, and the remaining income, if any, to apply to the purposes of the charity contemplated by testator.
    “ And further, upon the death of the widow, to pay to the niece of testator such portion of the income after payment of the annuities as she may, in her discretion, deem necessary or require to render her more than comfortable in her housekeeping during her lifetime, the surplus income, if any, to be applied to the charitable purposes of the will. While we agree, therefore, with the auditor, that the claim of the widow to be awarded the corpus or principal of the estate cannot be sustained, yet we are of the opinion that testator has conferred upon his wife, and, after her death, upon his niece, an absolute and unfettered discretion, as to the proportion of the income of the estate they will respectively require for their maintenance, and upon the exercise of which the court has no authority to impose any restrictions. This we consider- to have been in the mind of the testator and to form the scheme of his will.
    “We are, therefore, of the opinion that the balance of the principal of the estate should be awarded to the trustees,, to be held and applied to the uses and purposes of the trusts declared by testator, and that the balance of the income, after the payment of the legacies bequeathed, should also be awarded to the trustees for the payment of the annuities, and to the widow of testator of such sum or sums as she, in her discretion, may require for the maintenance of herself and niece, now Mrs. Charlotte F. F. Reed, the balance of the income, if any, to be expended in support of the charitable trust declared in the will.”
    The court then dismissed the foregoing exceptions, and recommitted the report to the auditor to report in accordance with the above opinion. The auditor made a supplemental report, to which the appellant filed the following exceptions alleging error:—
    1. Because the auditor has decided that Mrs. Thomson, the exceptant, is not entitled to the corpus of the testator’s personalty (but merely to the income thereof), subject to the testator’s debts and legacies, and subject to the rights of Mrs. Charlotte F.-F. Reed.
    2. Because the auditor has not decided that Mrs. Thomson and Mrs. Reed are together entitled to the whole of the corpus of testator’s personal estate, subject to debts and legacies, except the legacy to the charity.
    3. Because the auditor has not decided that Mrs. Thomson is entitled, to the exclusion of the' charity (but subject to all other legacies and to the testator’s debts), to the whole of testator’s personal property, by the provisions of his will, on demand made by her to that effect, which demand has been made, such right being further limited by the codicils to testator’s will, so as to subject the said personalty to a charge of two-thirds of the net income thereof during Mrs. Reed’s and Mrs. Thomson’s joint lifetime, and to the charge of the whole net income after Mrs. Thomson’s death, during Mrs. Reed’s lifetime, to be paid to the latter, if she requires it, but to no other charge whatever; whereas the auditor has refused to award any part' of the principal of said personalty to this exceptant.
    4. Because the testator, by his will, subjected his estate to the payment, first, of so much of the proceeds of all his property (excepting household furniture), as this exceptant might deem necessary for the maintenance of herself and Mrs. Charlotte F. F. Reed, they living in such style as this exceptant might think best' to promote their happiness and comfort during her lifetime. And after providing that the estate should be further charged with the payment of certain legacies, the testator, in his will, further directed that the remainder of the net income of his estate, after the payment above specified, or so much as might be judiciously applied thereto, should be appropriated to a charity. Yet the auditor has decided that under these provisions of the will, the testatrix was not entitled to any portion of the corpus of the personal estate, but only to a portion of the income thereof.
    The auditor overruled these exceptions and the court sustained this action, and confirmed his report.
    Mrs. Thomson then took this appeal, alleging that the court erred in dismissing the exceptions both to the first and supplemental reports.

      A. Sydney Biddle and George W. Biddle, for appellant.
    Mr. Thomson’s idea was to place the disposal of his whole fortune in the hands of his wife. He intended that as between her and the residuary legatee, the charity, the latter should receive any thing, or nothing, as Mrs. Thomson decided. This was equally true of principal and of income. He desired her to take from his property whatever she thought would make her happy.
    The testator uses a word, which may be ambiguous, and by the context defines it meaning. He then repeats two lines below, the same word, and the question is, did he use it in the same signification ?
    The rule is that where words in a will are defined by the context, and then repeated in a position which by itself would leave it in doubt which of two meanings is to be applied, that is chosen which the testator has given to the same words in a different part of his will.
    “ This principle of construction was adopted and applied in Seibert v. Butz, 9 Watts 490, and indeed is so reasonable that it needs no citation to sustain it.” Per Sharswood, J., in Ingersoll’s Appeal, 5 Norris 240; and that case was decided on that ground.
    It is no avoidance of the difficulty to show that other parts of the will become inoperative by giving to the testator’s language his own and its natural meaning. We admit that. ? It is quite plain that the testator intended to give his widow an unlimited discretion to dispose of his residuary estate, and what she did not dispose of he intended should go elsewhere. Possibly he could make such a disposition. Mrs. Thomson’s estate would be a power, which, if unexercised, would leave the bequest over valid. But she does use her power. She claims the whole property. A claim of a legatee’s rights in court is equivalent to a requisition upon trustees for the full amount to which the legatee may he held to be entitled : Irwin v. Earrer, 19 Yes. 86.

      William A. Porter, for appellees.
    Such an intention as is here claimed to vest in Mrs. Thomson the principal of the entire estate, is inconsistent with, and contradictory to, all the other parts of the will and the codicils thereto.
    1. It is inconsistent with the direction to the trustees to make the other four payments referred to — namely, an annuity to each of the testator’s two sisters, an annuity to his nephew, a bequest in favor of his' nephew’s wife, and certain payments to his household servants; for if he has given to his wife the whole of the estate, out of what fund can the trustees make these payments ?
    2. An intention to give to Mrs. Thomson the whole of his estate is inconsistent with and contradictory to the first codicil to the will, wherein the testator desires his niece to receive during her life such income from Jiis estate as if she were really his child, and also contradictory to the second codicil, wherein he desires that his niece shall take out of the income of his estate all that she requires to render her more than comfortable in her housekeeping during her lifetime. If he intended that his wife should have all, from what fund could his niece have obtained her portion ?
    3. Such a disposition of the estate as is here contended for would render impossible of execution the trust for which the trustees were chiefly appointed — namely, the founding and conducting of a charitable institution, on a plan which the testator sets out at length in his will with so much particularity.
    4. The power of sale given by the will to the trustees can be exercised by them only, and at their discretion. The proceeds, should any arise, are directed by the testator to be re-invested by the trustees, and thus these proceeds are not in any way to be under the control of his wife.
    5. The testator, after directing “proceeds” to be paid by the trustees to his wife for the maintenance of herself and niece “ during her lifetime,” gives certain personal property to her, thus, “to my wife, Lavinia F. Thomson, I give absolutely all my household furniture, books and ornaments,” showing clearly an intention to distinguish the bequest for her maintenance during life, and the bequest of such things as he desired that she should have absolutely in her own right.
   Chief Justice Sharswood

delivered the opinion of the court, March 3d 1879.

The question presented upon this appeal depends upon the construction of the will of the late J. Edgar Thomson. It was written by himself without the benefit of legal counsel. It must have such a reasonable construction as to effectuate his whole intention — if that can be done consistently with the rules and policy of the law.’ When near his death, Mr. Thomson added two codicils to his will, which throw strong light upon his meaning. It is conceded that the word “proceeds” is a word of equivocal import. Its construction depends very much upon the context and the subject-matter to which it is applied. If a testator should direct his property to be sold, and the proceeds to be disposed of or distributed in a certain manner, no one could doubt that the whole corpus or principal was intended. But should he order it to be rented or invested, then proceeds would necessarily be limited to the net income, especially if the interest given was for life only. Here, the first provision made by the testator, was a gift and bequest of all his estate, real and personal, to trustees, “the income from which shall be devoted to the purposes ” thereinafter mentioned, with power “to sell any of his property and re-invest the proceeds whenever in the judgment of the trustees the interest of the trust will be promoted.” When, therefore, immediately there follows, the direction that so much of the proceeds of the said property shall be paid to Mrs. Thomson as she may deem “ necessary for the maintenance of herself and his niece, they living in such style as she may think best to promote their happiness and comfort during her lifetime,” it is impossible to refer the word “proceeds” to anything but the income which he had just before devoted to the purposes of his will. After some annuities, he then declares that the trustees shall appropriate the remainder of the net income of his estate, after the payments specified, to a charitable purpose. Mrs. Thomson was to have whatever part of the income she might deem necessary. It was to be ¿ntirely in her discretion to say how much. If any remained, after providing for his special annuities and legacies, it was to go to the ultimate charitable purpose. If his niece should survive his wife, however, there was to be paid to her during life, an annuity of two thousand dollars. This was his plan of disposition of his estate when he made his will.

As he drew near his last end, he became anxious lest he had not made a sufficient provision for his niece. Accordingly, in his first codicil he desires her to be treated and regarded as if she were really his child, “ receiving during her lifetime such income from my estate, as if she were really my child.” Without pausing to inquire what her interest may be under this and the second codicil, which directs that she shall take “out of the income” of his estate all'that “she requires to render her more than comfortable in her housekeeping during her lifetime,” it is enough to say that both these codicils are a strong confirmation of the construction placed upon the will by the court below. It is very clear that the testator considered himself throughout the will and codicils, as dealing only with the income of his estate, the corpus or principal being vested in the trustees for the ultimate purpose, the charity which he had, no doubt, near his heart.

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