text:
    Thirteenth and Fifteenth Street Passenger Railway versus Boudrou.
    1. Where a passenger upon a railway car was himself guilty of a want of care, but it did not contribute to the accident whereby he was injured, or only remotely contributed to it, he will not thereby be prevented from recovering damages from the company, when the negligence of the company was the proximate cause of the injury.
    2. The test for contributory negligence is found in the affirmative of the question, did the plaintiff’s negligence contribute in any degree to the furthering of the injury complained of? If it did, there can be no recovery ; if it did not, it is not to be considered.
    3. Plaintiff, who was riding upon the rear platform of a crowded street car, was struck by the pole of the car following, and seriously injured. Held, that in riding in this place, he was not guilty of contributory negligence ; that although the accident would not have happened had he not been in that position, yet the position was but a condition and not the cause of the injury, and that the court properly withheld from the jury the question of contributory negligence.
    4. The Act of April 4th 1868, limiting the amount to be recovered in case of personal injury to S3000, was unconstitutional. Actual damages for injuries sustained may be recovered without limitation as to amount. Central Railroad Co. of N. J. v. Cook, 1 W. N. 0. 319, followed and affirmed.
    January 19th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkex and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 115.
    Case by Alexander Boudrou against the Thirteenth and Fifteenth Street Passenger Railway Company, to recover damages for injuries caused by the alleged negligence of defendant.
    It appeared at the trial, that plaintiff, about ten o’clock on the night of April 18th 1871, got on a car of the defendant on Fifteenth street, at a point between Walnut and Chestnut streets. The plaintiff lived at Fifteenth street and Columbia avenue. The car was crowded, and plaintiff and several others were obliged to stand upon the rear platform. The plaintiff had been drinking, but was not in such a condition that he could not take care of himself. After he got on the car it stopped at Chestnut street, and there other pei’sons got on, two of whom were ladies, who entered the body of the car. Upon the way up to Mount Vernon street, a distance of a few squares, the car, No. 13, stopped several times to let off and take on passengers. As the car approached Mount Vernon street, there were four other gentlemen and plaintiff on the rear platform. When the car reached that street, it stopped again to leave off passengers. At this moment, the pole of car No. 14, which was following rapidly up Fifteenth street, struck Boudrou a violent blow on the back, propelling him forward with great force and throwing him on his face on the floor in the aisle of the car. The cause of the collision was the breaking of the brake-chain. Plaintiff was leaning with, his back against the dasher when struck. Two of his ribs were broken, and his lung and spinal column injured. He remained, for a time unconscious in the car, until he reached his home, when he was carried into his house. He was confined to his bed for six weeks, and to the house three months, suffering greatly; and was so much injured mentally and physically, as to almost unfit him for business. He was at the time of the accident about fifty-one years of age, was robust and active, and an energetic and industrious man, engaged in the real estate business and several other enterprises.
    The following points were submitted, all of which the court, Finletter, J., refused:
    1. That if the jury believe from the evidence that the plaintiff voluntarily put himself in a place of exposure and that in consequence of it the injury to him happened, he cannot recover, although he may be able to show negligence by the defendant: Mayo v. Boston and Maine Railroad Co., 104 Mass. 137.
    2. That if the jury believe from the evidence that the plaintiff voluntarily got upon the platform of the car, knowing the car to be so crowded with passengers that he could not enter the car, but would be obliged to stand on the platform ; that he did so stand on the platform and in consequence of being in that place on the car he received the injury, then he was guilty of negligence, and the verdict must be for the defendant.
    3. That there being no evidence that the defendant actually did the injury complained of or commanded it to be done, the defendant company is only liable as employer of those whose alleged negligence caused the injury, and therefore the Act of Assembly of April 4th 1868 (Br. Purd. p. 1094), is constitutional and of binding force as regards this defendant, and the jury can in no event find greater damages than the sum of $8000.
    4. That the platforms of a passenger railway car are intended for the ingress to and egress from the car, and it is negligence in a passenger to use them for any other purpose. That if the jury find from the evidence that the plaintiff occupied the hack platform of the car .on which he received his injury for the purpose of being carried as a passenger, he was guilty of contributory negligence, and the verdict must be for the defendant.
    In the general charge the court, inter alia, said:
    “ Standing upon the rear platform was not negligence, even if there was no room in the body of the car, unless plaintiff was specially warned of danger and recklessly persisted in staying, and unless it appears that the injury was one which fell on him because he was in that particular place or position.
    “ But a passenger upon the back platform has no right to suppose that he may be run down by a following car. In this respect he is as much under the care of the driver of the coming car as he is under the care of'the driver and conductor of his own car.
    “It is not one of the dangers which makes the rear platform dangerous. The danger of falling off, of being knocked off by means not connected with the road, he doubtless takes upon himself ; but to be driven into by the car following is not and ought not to be considered one of the incidents of riding upon the rear platform of a passenger car.
    “ If, therefore, you should find that the plaintiff was negligent in standing upon the rear platform and yet find that the collision could not have happened but for the negligence of the driver of car 14, plaintiff’s negligence is not a bar to his recovery. In this event his negligence is to be considered a remote negligence and not a cause of the injury.”
    Verdict for plaintiff for $10,000. After judgment thereon defendant took this writ and alleged that the court erred sixth assignment in the above charge, seventh, eighth, ninth and tenth assignments in the answer to the points respectively.

      R. P. White, William Rotch Wister and George W. Thorn, for plaintiff in error.
    The plaintiff cannot recover unless he himself has been free from all negligence which contributed to the accident: 2 Redfield on Railways, sect. 103, 4th ed. The injury done to plaintiff was directly in consequence of his being on the back platform. The question whether his position there contributed to his injury was for the jury. The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care: West Chester & Philadelphia Railroad Co. v. McIlwee, 17 P. F. Smith 311; Forks Township v. King, 3 Norris 233; City of Harrisburg v. Saylor, 6 Id. 216; Detroit & Milwaukee Railroad v. Van Steinburg, 17 Mich. 99; Railroad Company v. Stout, 17 Wallace 657; Huelsenkamp v. Citizens Railway Co., 37 Mo. 537. Ordinary and reasonable care was certainly the measure of plaintiff’s duty, and if so it was for the jury.
    The primary use of platforms is for ingress and egress to and from the cars. They are not intended to carry passengers, and if they are so used it is for the convenience of the passengers themselves. Each passenger can demand a seat, and if one is not provided he can descend from the car and take another. Plaintiff, however, knew that the seats in the car were fully occupied, and he got upon the car notwithstanding that fact. He would not wait for the next car to come along in a few minutes. Experience proves that it is impossible to supply enough cars to meet the requirements of the public at hours when places of amusement close, and when many hundreds of people are sometimes suddenly thrown into our leading thoroughfares, and such the testimony shows was the actual case here. The platform of a car is surely more dangerous to a passenger than the body of the car, and into the body of the car plaintiff could confessedly have passed without trouble, as several people did go in and come out after he got on. The case of the Central Railroad Co. of N. J. v. Cook, 1 W. N. C. 319, was overruled by Pennsylvania Railroad Co. v. Langdon, ante, page 21.

      John ScoTlay and F. Carroll Brewster, for defendant in error.—
    The court ruled in exact accordance with the principle stated in 2 Redfield on Railways, sect. 103, 4th ed.: “ The company shall be guilty of some negligence, and the passenger should not have been guilty of any want of ordinary care and prudence, which directly contributed to the injury, since no one can recover for an injury of which his own negligence was in whole or part the proximate cause.”
    In an action for an injury occasioned by the negligence of a defendant, the plaintiff cannot be held guilty of contributory negligence, unless he had some reason to expect danger from some natural and probable quarter, and voluntarily allowed himself or his property to remain in that danger, or voluntarily placed himself or his property in that danger: Gray & Bell v. Scott and Wife, 16 P. F. Smith 345; McGrew et al. v. Stone, 3 Id. 436; Humphreys v. Armstrong County, 6 Id. 204; Reeves v. Del., Lack. & W. Railroad Co., 6 Casey 454; Brown v. Lynn, 7 Id. 510; Penna. Railroad Co. v. Kilgore, 8 Id. 292; Penna. Railroad Co. v. McTighe, 10 Wright 316; O’Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 239; Greenland v. Chaplin, 5 Exch. 243. In this case the danger was so remote that plaintiff was not bound to guard against it: Corrigan v. Sugar Refinery, 98 Mass. 577.
    The plaintiff may recover “ where the plaintiff’s negligence is remote and the defendant’s proximate; or, in other words where the plaintiff’s negligence was a condition of the injury, but not its juridical cause.” Whart. on the Law of Negligence, sect. 323, page 292. The right to sue of the legal representatives of a person killed by the negligence of another, was first granted by the legislature, and the legislature, therefore, can modify that right from time to time, or it may abolish it altogether. Consequently, the part of the act limiting damages for injuries resulting in death to be recovered by the relatives of the person killed to $3000, this court has held to be constitutional, for the reason that, among other things, the legislature gave the right, and it can also take it away with perfect propriety. See Langdon v. Penna. Railroad Co., supra.

   Mr. Justice Trunkey

delivered the opinion of the court, February 2d 1880.

The chief debatable question is presented in the sixth, seventh, eighth and tenth specifications of error. Defendant claims that the plaintiff was guilty of negligence which contributed to the accident, and that this was a question for the jury. The rule cited hy its counsel is correct, namely, that to render a railway company liable to a passenger, the company shall be guilty of some negligence or omission which, mediately or immediately, produced or enhanced the injury; and the passenger shall not have been guilty of any want of ordinary care and prudence, which directly or indirectly contributed to the injury; since no one can recover for an injury of which his own negligence was in whole, or in part, the proximate cause: 2 Red-field on Rail., sect. 193. This rule permits recovery where the passenger was negligent, if there was no causal connection between his negligence and the injury. Hence, it is said in the same section, “ Although the plaintiff’s misconduct may have contributed remotely to the injury, if the defendant’s misconduct was the immediate cause óf it, and with the exercise of prudence he might have prevented it, he is not excused.” And in Whart. on Neg., sect. 303, the principle is thus stated, “In order to defeat recovery of damages arising from the defendant’s negligence, the plaintiff’s negligence must have been the proximate and not the remote cause of the injury; in other words, must be its juridical cause, and not merely one of its conditions.” The author further says, sect. 324, “ The negligence, to make it a juridical cause, must be such, that by the usual course of events it would result, unless independent moral agencies intervene, in the particular injury. * * * In other words, to put the same doctrine into the language made familiar to us by the adoption of the terms ‘proximate’ and ‘remote,’ my ‘remote’ negligence will not protect a person who, by ‘proximate’ negligence does me an injury.” In England, the general rule is, that the plaintiff, in an action for negligence, cannot succeed if he has himself been guil.ty of any negligence or want of ordinary care which contributed to the accident. And a well-established qualification of the rule is, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him: Radley v. Railway Co., Law Rep., 1 Ap. Cas. 754 (1876). Here, perhaps, the rule is not qualified to so great an extent; yet it is clear, that a plaintiff may recover, though he did not use due care, if his negligence in nowise caused the accident resulting in his injury. Indeed, the principle stated by Wharton, supra, seems to have been adopted in. Creed v. Pennsylvania Railroad Co., 5 Norris 139, where Gordon, J., said, “The test for contributory negligence is found in the affirmative of the question, does that negligence contribute in any degree to the production of the injury complained of? If it does, there can be no recovery; if it does not, it is not to be considered.” The defendant’s second point was, that upon the facts as therein stated, the plaintiff was guilty of negligence; and the fourth was, that the platforms of a passenger railway car are for ingress and egress, and it is negligence in a passenger to use them for any other purpose; and if the plaintiff occupied the back platform of the car on which he received his injury, for the purpose of being carried as a passenger, he was guilty of contributory negligence. Such were the instructions prayed, yet the defendant now urges that, “under the testimony, the question whether Mr. Boudrou’s position on the rear platform contributed to his injury, was one for the jury.” In truth, there was no controversy as to the circumstances of the accident, there was but one way to find the facts, if the jury regarded the testimony ; and at the trial, the defendant demanded that the court should say there was concurrent negligence, if certain facts were found. The learned judge, taking a different and correct view, very properly charged that the plaintiff could not recover if the injury resulted from any negligence on his part; that if the jury should find that the plaintiff' was negligent in standing on the rear platform, and yet find that the collision could not have happened but for the negligence of the driver of car 14, plaintiff’s negligence was remote and not a bar to his recovery. IBs reasons given, as leading to that conclusion, are unanswerable. The large number of passengers in this city, who’voluntarily stand on the platforms, because there is neither sitting nor standing room in the cars, do not, and ought not, anticipate that they will be run over by following cars. Their position has no tendency to induce the driving of one car into another. Whatever the degree of their negligence in riding on the platform, and the risks they take in so doing, every one knows that so long as he remains there, he is in no danger of being run down by a car, unless from its heedless handling. - When the plaintiff was struck, his post was a condition, but not a cause of his injury. It neither lessened the speed of the car he was on nor increased that of the other; his presence was not a cause of the broken chain and reckless driving of car 14; his place was an incident of an overcrowded car, whose conductor had left the platform to give him standing-room, and had not pointed him to a seat or requested him to enter the car. We are not persuaded that different minds could honestly draw different conclusions from the facts, but on the contrary are convinced, the court was right in refusing the second and fourth points, and in the instructions set out in the sixth assignment.

As a general rule it cannot be doubted the question of negligence isn one of fact, and not of law ; and the case must be very clear which will justify the court in refusing its submission to the jury: Detroit & Michigan Railroad v. Steenberg, 17 Mich. 99; Mayo v. Boston & Maine Railroad, 104 Mass. 137. But it has been repeatedly held that certain facts, when established, amount to negligence per se; Hoag v. Lake Shore & M. S. Railroad Co., 4 Norris 293. And when the evidence is insufficient to warrant a finding of negligence, it is the duty of the court to order a nonsuit, or refuse to submit the question, as the case may require. And nonsuit will be ordered if the plaintiff’s testimony clearly shows his contributory fault. In some cases negligence is an inference of law from the facts proved: Empire Transportation Co. v. Wamsutta Oil Co., 13 P. F. Smith 14; in others, there may not be evidence of the defendant’s negligence, and if that be proved, it may be clear that there is no testimony of the plaintiff’s concurrent negligence. It is error to submit a question to the jury of which there is no evidence: Jones v. Wood, 4 Harris 25; Evans v. Mengel, 6 Watts 72; 1 Barr 68.

But one point remains that calls for remark. In Central Railroad of N. J. v. Cook, 1 W. N. C. 319, it was held that a plaintiff can recover the amount of his loss or damage, that he pecuniarily suffered or sustained from personal injuries by reason of the defendant’s negligence, notwithstanding the Act of April 4th 1868, Pamph. L. 58. This case was then pending on error assigned to the ruling of the court below, that the Act of 1868 limited the plaintiff’s recovery to a sum not exceeding $3000, and because of that decision, which was to the very point, it was reversed by agreement of the parties. The argument 'on part of defendant was ingenious, but we are not convinced that Railroad v. Cook should be overruled. Its authority is in conservation of the reserved right to every man, that for an injury done him in his person, lie shall have remedy by due course of law. The people have withheld power from the legislature and the courts to depriv'e them of that remedy, or to circumscribe it so that a jury can only give a pitiful fraction of the damage sustained. Nothing less than the full amount of pecuniary damage which a man suffers from an injury to him in his lands, goods or person, fills the measure secured to him in the Declaration of Rights. As well might it be attempted to defeat the whole remedy as a part; and with equal propriety could it be declared, that in all actions against persons using a railroad as a public highway, for damages from injuries to property, the sum recovered shall not exceed $3000, as for injuries to the plaintiff’s person. A limitation of recovery to a sum less than the actual damage, is palpably in conflict with the right to remedy by the due course of law.

Judgment affirmed.

Chief Justice Sharswood dissented and Justice Paxson filed a dissenting opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Hanbest's Appeal. Hanbest's Estate.
    Where there is no supine negligence in an executor, the fact that he continues a deposit in a bank upon the same terms originally made by his decedent, will not make him responsible for its loss by the failure of the bank.
    January 19th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Philadelphia conniy: Of January Term 1880, No. 39.
    Appeal of John Hanbest and others, from the decree of the court dismissing the exceptions to the report of the auditor to audit the account of the executor of Thomas Passmore Hanbest, deceased. Thomas Passmore Hanbest died on the 7th of August 1873, leaving a will dated July 30th 1873, wherein he appointed Isaac Norris his executor. By a codicil he appointed his brother, Philip M. Hanbest, co-executor. The latter died intestate in August 1875. The account of Mr. Norris as executor was filed and referred to an auditor, before whom it appeared that at the time of decedent’s death on August 7th 1873, there was a balance to his credit with Jay Cooke&Co., bankers, amounting to $46,623.44. This balance was transferred to Norris, as the acting executor, on August 21st 1873. The ordinary rate of interest allowed by Jay Cooke & Co. was three per cent., but in consideration of the larger balances kept by the decedent, they allowed him five per cent. When the account was transferred to Norris, no arrangement was made in regard to the rate of interest, but they continued to allow him five per cent. On September o 18th 1873, Jay Cooke & Co. failed, at which time there was a balance to the credit of the executor of $42,542.37. The auditor was asked by the residuary legatees to surcharge the executor with the amount of the deposit. The auditor was of opinion that there was no negligence upon the part of the executors, they having acted in good faith, and for the best interests of the estate, as they supposed; and this not being an investment made by them, but merely a continuation of a former deposit made by the testator in his lifetime, this credit should be allowed.
    Exceptions were filed to this report, which the court dismissed, and confirmed the report, from which decree this appeal was taken.

      Wm. H. Livingood and II. Mclntire, for appellants.
    A trustee can only protect himself from risk when he invests the fund in real or government securities, or in pursuance of an order of court: Hemphill’s Appeal, 6 Harris 306.
    He must be diligent and careful in getting possession of the property and in making his investments.' It was held, in a few extreme cases, that he may keep the money in a reliable bank for one year. But was this a reliable bank ? Was the trustee justified in his faith in this bank ? It was a private and interest-paying bank. Jay Cooke & Co. were dealers in bonds, notes and stocks, and invested large sums of money at great risks, so as to make high rates of interest, and were actively engaged in building railroads. Three things were sufficient to put the trustee on his guard, and to prevent him from risking this large sum of money until he had examined its affairs. Where the money is in a private bank and in the hands of brokers, it should be withdrawn forthwith. The money should be so deposited that it can be drawn with the greatest facility at the shortest notice of danger. It should have been entered on joint account, so that the individual checks of the executor could draw it out, and the same care be exercised by him as used in the custody of his own property.

      George W. Biddle, J. Parker Norris and F. Oarroll Brewster, for appellee.
    The court would not hear an argument for appellee.
   The judgment of the Supreme Court was entered February 2d 1880,

Per Curiam.

The deposit or investment by Mr. Norris as executor of Hanbest in the bank of Jay Cooke & Co., was nothing but a simple continuation of the deposit and investment made by the testator and on the same terms. That he opened an account as executor, and transferred the amount to his new account, did not alter the state of the case. Had this been an original deposit by the executor of money in his hands, it would have presented an entirely different question. According to the well-established rules on this subject, there was no supine negligence in the executor which ought tó make him responsible for the loss of this money.

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


author: Mr. Justice Sterrett

text:
    Moore versus Juvenal.
    1. In an action against an attorney-at-law for neglecting to prosecute a claim until it was barred by the Statute of Limitations, where there was no fraud or concealment on the part of the attorney, the plea of the bar of the statute is a good defence.
    2. Where the declaration, in such a case, alleges a breach of duty, and a special consequential damage, the breach of the duty, and not the consequential damage is the cause of the action, and the statute runs from the time of the former and not from the time the special damage is revealed or becomes definite.
    3. The fact that plaintiffs retain the defendant as their attorney after he had violated his implied contract with them, does not suspend the operation of the statute.
    January 19th 1880.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 20.
    Assumpsit, brought- November 17th 1874, by Daniel T. Moore and Burrows P. Rich against Margaret H. Y. Juvenal and Jacob V. Juvenal, executors of William W. Juvenal, deceased, to recover damages for an alleged breach of professional duty in the mismanagement of a cause which the Messrs. Moore and Rich had intrusted to him — a claim which they bad against the Green and Coates Streets Passenger Railway Company — by which the plaintiffs allege that they have sustained damage by reason of his want of diligence in proceeding in that case, in consequence of which the claim which they had against that company was lost to them by being barred by the Statute of Limitations.
    The narr. alleged that W. W. Juvenal was employed as counsel by plaintiffs in an equity suit in 1858 against the above-named railway company, in which suit Court of Common Pleas, No. 1, made a decree in favor of plaintiffs for $>24,797.20 ; and by decree a certain suit was ordered to be brought, and that Juvenal, though often requested to begin and prosecute the same did not do so until February 27th 1867, in which suit judgment was entered against plaintiffs February 27th 1871, whereby they lost the benefit of the decree of May 23d 1859, and damages -were therefore laid for the amount of said decree, less $15,000 with interest, which the company had paid in 1859. The defendants pleaded non-assumpserunt and the Statute of Limitations.
    The facts as set forth in the opinion of the court below, Peirce, J., were as follows:— .
    “ The defendant was employed as counsel by plaintiffs in an equity proceeding and claim which they had against the Green & Coates Streets Passenger Railway Company. In that proceeding the Court of Common Pleas for the city and county of Philadelphia, on the 23d day of May 1859, decreed in favor of the plaintiffs for the sum of $24,797.20, the amount of the award of the appraisers in their favor, without prejudice to the right of the defendants to contest the same; and, inter alia, ordered that an amicable action be entered forthwith by and between the plaintiffs and defendants to determine the legal and binding effect of the award.

      “ On the 26th of May 1859, this decree was modified by agreement of the parties, and $15,000 were paid to the plaintiffs; and defendants in that suit agreed to pay a further sum upon said award as soon as approved. On June 6th 1866, the plaintiffs moved for a final injunction, which was refused, and a decree was made in accordance with that of May 23d 1859, as modified by the agreement of May 26th 1859. From this decree the plaintiffs appealed to the Supreme Court. The decree was there affirmed.
    “ No action was brought on behalf of the plaintiffs, as ordered by the court, until February 27th 1867. To this the defendants therein, the Green & Coates Streets Passenger Railway Company, inter alia, pleaded the Statute of Limitations, and the Supreme Court gave judgment on this plea in favor of the defendants : 14 P. F. Smith 79. The defendant in this action, believing that the appraisement made in favor of the plaintiffs was in the nature of a legal award, and that though plaintiffs had twenty years in which to bring their action, delayed bringing it, although frequently urged by the plaintiffs to do so, and was not made fully aware of the consequences of his negligent delay until the judgment of the Supreme Court above referred to was given, January 24th 1870. That court held that the cause of action against the Green & Coates Streets Passenger Railway Company accrued November 23d 1859, and was barred by the statute six years thereafter.
    The action against the defendant in this suit was brought to December Term 1874, and his counsel contend that it is barred by the Statute of Limitations, that the negligence complained of began at the date of the decree of May 23d 1859, when the plaintiff was ordered to bring suit against the railway company.”
    The defendant submitted the following points, to which are appended the answers of the court:—

      1. That the action is barred by the Statute of Limitations, and the plaintiffs cannot recover.
    Ans. “ I do not affirm that, but reserve it as a question of law for the court in banc.”
    2. That even if the plaintiffs ever had any cause of action, it commenced at the date of the decree of May 23d 1859, and that no suit having been brought within six years from that date, the plaintiffs cannot recover, and the verdict must be for the defendant.
    Ans. “ I do not affirm that, but reserve it as a question of law for the court in'banc.
    3. That the breach of duty being laid in the declaration on the twenty-third day of May 1859, and a special consequential damage being alleged, the cause of action is the breach of duty, and not the consequential damage, and the Statute of Limitations runs from the date of breach of duty, which being laid more than six years before this suit, the action is barred by the Statute of Limitations, and the verdict must be for the defendant.
    Ans. “ I do not affirm that, but reserve it as a question of law for the court iri banc.”
    7. If the jury believe from the evidence that Mr. Sellers came into the case in June 1866, the breach of duty of the defendant, if there was such, had taken place more than six years before that time, and the Statute of "Limitations will preclude arecovery by the plaintiffs, and the verdict must be for the defendant.
    Ans. “ I do not affirm that point, but reserve it as a question of law for the court in banc.”
    In the general charge the court, inter alia, said: Upon the whole case, as there seems to be nothing for you to determine, it being mostly questions of law, it is simply a matter of calculation as to the difference between $15,000 and $24,797.20, with interest thereupon. For that amount I instruct you to render a verdict, subject to the opinion of the court in bane upon the questions of law raised in the cause.
    The jury in accordance with this instruction rendered a verdict for. plaintiff for $21,632.21.
    The court in banc subsequently entered judgment for defendant, Peirce J., in an opinion, inter alia, saying: “ The facts in this case appear to bring it within the rulings in Campbell v. Boggs, 12 Wright 525, and Rhines v. Evans, 16 P. F. Smith 192. But it is said that the plaintiffs were put off their guard by the defendant repeatedly saying to them that there was plenty of time in which to bring their action against the railroad company. This is not shown to have been an act of fraud on the part of the defendant. At most it seems to have been a mistake of judgment or a misunderstanding of the law. It did not conceal from the plaintiffs that he was neglecting their business, for they were frequently urging him to bring action against the company, and if it was mistake of the law on his part, it did not excuse him from his duty and a liability to the plaintiffs for a breach of it, any more than a mistake of the law on their part excused the plaintiffs for not having brought their action against the railroad company in time; for ignorance of the law excuseth no man, whether he be layman or lawyer.
    “ It follows that, whether the right of action against the defendant accrued in 1859, when he failed in his duty to bring an action against the railway company, as ordered by the court and his client, or in 1865, when the aetion against the railway company was fully barred by the statute, the action against him is fully barred by the failure of the plaintiffs to bring their action against him in the one case for fifteen years, and in the other for nine years after their cause of action accrued.
    “ It matters not that the plaintiffs did not know that their action against the railway company was barred by the Statute of Limitations until the decision of the Supreme Court in 187 0. The rights of parties do not depend on their knowledge or want of knowledge of the law, or their opinion respecting it — the basis would be too uncertain — but upon the law itself, which is applied equally to all men, the learned and the unlearned.
    “ The verdict is set aside, and judgment is entered for the defendant on the point reserved, non obstante veredicto.”
    The action of the court was assigned for error by plaintiff, who took this writ.

      J. Warren Boulston and Robert B. Benedict, for plaintiffs in error.
    The relation of attorney and client existed until 1870, and the statute did not begin to run until the termination of that relation : McCoon v. Galbraith, 5 Casey 293. When the professional relation involves a series of acts and duties, an attorney is not liable until the relation is dissolved: Glenn v. Cuttle, 2 Grant’s Cases 273. The action was rescued from the operation of the statute by the repeated promises to commence the action: Yaw v. Kerr, 11 Wright 333.
    It Avould seem a necessary conclusion that the attorney’s right to compensation for a given service, and the client’s right of action for the attorney’s negligence in the performance of the service, must arise at the same time, and be effected in the same way by the statute.
    If the court, then, in the interest of attorneys, hold that their right of action for services is not affected by the Statute of Limitations until the termination of the relation of attorney and client, why must they not, in the light of even-handed justice, hold that the client’s right of action for negligence in performing those services, is to stand on the same footing? Hale’s Ex’r v. Ard’s Exr’s., 12 Wright 22; Lichty v. Hughes, 5 P. F. Smith 434. The action could not be brought until 1870, for the negligence was not discovered until that time: Derrickson v. Cady, 7 Barr 27; Morgan v. Tener, 2 Norris 305; Leasure v. Mahoning Township, 8 Watts 551. The agent cannot set up the statute where he has misled the principal and induced him to delay his action : Wickersham v. Lee, No. 1, 2 Norris 421. An attorney acting wrongfully, even under a wrong impression, is liable: Cox v. Livingston, 2 W. & S. 103.

      John A. Broivn, Thomas J. Diehl and George W. Thorne, for defendants in error.
    The breach of duty being laid in the declaration as of May 23d 1859, it was, in view of this, that the defendant asked the court to charge as set forth in the the third'point.
    The English rule, in actions on the case for negligence, where the declaration alleges a breach of duty, and a special consequential damage, is that the cause of action is the breach of duty, and not the consequential damage; and the statute runs from the time when the breach of duty is committed, and not from the time the consequential damage accrued: Howell v. Young, 8 Dowl. & Ry. 14; 5 Barn. & Cress. 259; per Burnside, J., in Derrickson v. Cady, 7 Barr 31.
    An attorney who collects money for his principal, is bound to pay it over at once, and his neglect to do so is a breach of the implied contract, for which an action of assumpsit will lie. The Statute of Limitations begins to run from the time the right of action accrues, and not from the time when notice is given of the receipt of the money, unless there has been fraudulent concealment on the part of the attorney. Fraud has no place in this controversy, nor was it at any time alleged. This case is governed by Campbell v. Boggs, 12 Wright 525, and Rhines v. Evans, 16 P. F. Smith 192.
   Mr. Justice Sterrett

delivered the opinion of the court, March 1st 1880.

The breach of professional duty on which this action is founded is the omission of defendant’s testator to commence proceedings for the recovery of a claim against the Green and Coates Streets Passenger Railway Company, until after the same was barred by the Statute of Limitations.

The defence "was twofold: 1st. That the duties he owed to his clients were faithfully discharged and hence he was not liable for the loss of their claim. 2d. That this suit, having been brought more than six years after the alleged cause of action accrued, was barred by the statute.

The first branch of the defence was withdrawn from the jury,. and they were instructed to render a verdict for the plaintiffs, subject to the opinion of the court on the question of law, as to the effect of the Statute of Limitations,, raised by the defendants’ first, second, third and seventh points. The court in banc gave judgment in favor of the defendants non obstante veredicto; and thus they were not in a position to complain of the ruling of the court on the first branch of their defence.

It was agreed that the ihcts, upon which the question of law was reserved, are embodied in the opinion .of the court below; and the single question presented is whether upon the admitted facts the action was barred by the statute.

It appears that the alleged breach of duty must have occurred, if at all, prior to 1866. It is not claimed that anything was done or omitted to be done after that time whereby the plaintiffs were injured. The special damage complained of had all been done before, although it was not known or fully realized until 1870, when by the final judgment'of this court in the case of the railway company above named against the present plaintiffs in error (14 P. F. Smith 79), it was determined that the claim, with the collection of which defendants’ testator had been intrusted, was barred by the statute, because proceedings had not been commenced within six years after the right of action had accrued. The negligence complained of began after the decree of May 23d 1859, and must have been complete in six years thereafter, when the statute had run in favor of the railway company, so as to be an absolute bar to the plaintiffs’ claim in that case. The defendants’ testator, believing that the appraisement made in favor of the plaintiffs was in the nature of a legal award, and that they had twenty years within which to bring their action, delayed proceeding until the bar of the statute was complete.

In the meantime he had been frequently urged by the plaintiffs to proceed, and they were fully aware that suit was not commenced until Febuary 1867, nearly two years after their claim was in fact barred. There was no concealment, or attempt on the part of defendants’ testator to conceal the fact that the contemplated proceeding had not been commenced. In May 1866, with full knowledge of the delay that had occurred, they consulted and retained other counsel, who took an active part in commencing the suit in 1867, and conducting the same to final judgment, with the. result above stated. Although not certainly known or realized until the determination of that case in 1870, it is nevertheless the fact that the claim was barred, and thus lost prior to 1866, and all the negligence which conduced thereto had, of course, occurred before that date. It is not pretended that there was any neglect of duty thereafter by which they were prejudiced. It follows, therefore, that as soon as their claim against the railway company was barred and lost, they had a right of action against their attorney for any neglect of duty on his part, which resulted in the loss then actually sustained. This being the case, the statute commenced to run against their claim for damages, and completely barred the same in six years thereafter, unless there was something peculiar in the facts of the case to suspend its operation.

The record discloses nothing that should have such effect. There was no fraud or concealment by which the plaintiffs were misled or thrown off their guard. Aside from his dilatory conduct, their attorney acted in good faith, but with mistaken judgment. It is a mistake to suppose that the plaintiffs had no cause of action, and could not have brought this suit until after the final decision of their case against the railway company in January 1870. Where the declaration, as in this case, alleges a breach of duty and a special consequential damage, the breach of duty and not the consequential damage is the cause of action, and the statute runs from the date of the former, and not from the time the special damage is revealed or becomes definite: Wilcox et al. v. Plummer’s Exr’s, 4 Pet. 172. In Howell v. Young, 8 Dowl. & Ry. 14, which, like the case last cited, was an action against an attorney for negligence whereby the plaintiffs lost their debt, it is said, “ The loss does not constitute a fresh ground of action, but a mere measure of damages. There is no new misconduct or negligence of the attorney, and consequently there is no new cause of action.” There was nothing in the present case to have prevented the plaintiffs from bringing their suit any time within six years after their claim against the railway company was actually barred. If they had done so, every question touching their right to recover could have been determined in that action; but they not only waited until their suit against the railway company was decided against them, but they delayed for nearly five years thereafter. During all this time, covering a period of over nine years, they were aware of the facts which constitute the alleged negligence, and all that can be urged in their behalf is that, in common with their counsel, they did not know or realize the effect thereof until January 1870. Even then they would have been in time if they had brought suit promptly.

The facts of the present case bring it within the principles of Campbell v. Boggs, 12 Wright 524; Rhines v. Evans, 16 P. F. Smith 192, and Wilcox v. Plummer’s Executors, supra, in the former of which, it is held to be the duty of one who collects money, to pay it over to his principal at once, and neglect to do so, is a breach of his implied contract from which a right of action immediately springs ; and the statute begins to run then, and not from the time when notice is given of the receipt of the money, unless there be fraudulent concealment. In referring to the allegation of the plaintiffs, that they were put off their guard by the defendants’ intestate repeatedly saying to them, that there was plenty of time in which to bring their action against the railway company, the learned judge in his opinion says, “ This is not shown to have been an act of fraud on the part of the defendant. At most, it seems to have been a mistake of judgment or a misunderstanding of the law. It did not conceal from the plaintiffs that he was neglecting their business, for they were frequently urging him to bring suit against the company. ” In Rhines v. Evans, a claim in an attorney’s hands w'as lost, in consequence of neglect to properly enter a judgment ; and, in a suit brought against him more than six years after the judgment should have been entered, the statute was held to be a bar.

The fact that plaintiffs still retained defendants’ testator, as their attorney, after he had violated his implied contract with them, did not suspend the operation of the statute. They were under no obligation to do so. There was nothing to prevent them from discharging him at any time, if necessary, and commencing their action within the six years. In view of the facts as embodied in the opinion of the court below, we are of opinion, that there was no error in entering judgment for the defendants non obstante veredicto.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Hirst's Appeal.
    _ 1. The devisee of land, acquired by a testator subject to a subsisting encumbrance created by a former owner, takes it charged with the encumbrance, without any claim for its satisfaction out of the personal estate, unless the will clearly indicates an intention to charge such encumbrance on the personal assets, or the testator has so dealt with the encumbrance as to make it his proper debt.
    2. H. purchased a house, in the deed for which the consideration was stated to be $25,.000. The habendum recited that the conveyance was u under and subject” to a mortgage of $12,000. The receipt at the bottom of the deed was for $25,000, “ being the full consideration.” The actual sum paid by H. was $14,000. H. devised the house to his wife, who was his executrix, and in her account she took credit for payments of interest on the mortgage.
    The court below, on the ground that the personal estate of II. was not liable for the mortgage-debt, disallowed this credit. Held, that this ruling was correct.
    2. It seems, that under some circumstances a revoked will may be offered in evidence to aid in the interpretation of the last will o'f a testator.
    January 20th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1879, No. 78.
    Appeal of Mrs. Lydia B; Hirst from the decree of the court dismissing her exceptions to the adjudication of the judge before whom her account as executrix of William L. Hirst, deceased, was filed.

      William L. Hirst died August 80th 1876, leaving a will dated February 22d 1875, wherein he appointed his wife, the appellant, his executrix. By this will he devised to his wife his house ami lot on Logan Square in fee-simple, and gave her the personal property therein. The residue of his estate he gave to his wife to apply the net income, one-third to her own use, and the rest in equal shares for the use of his children. The property on Logan Square was conveyed to Mr. Hirst by a deed dated April 16th 1874, the consideration therefor being $26,000, “under and subject nevertheless to payment of a certain mortgage-debt or principal sum of $12,000.” The receipt at the foot of the deed was for $26,000, “ being the full consideration-money within named.”
    The executrix filed her final account October 4th 1877, and claimed credit for two payments of half-yearly interest on said mortgage. Mr. Hirst’s elder children excepted, and credit for these payments was disallowed by the auditing judge, Hanna, P. J., when the accountant excepted. At the argument of the exceptions, in March 1878, the accountant offered in evidence two original wills of William L. Hirst, prior in date to the will proved. This was for the purpose of aiding in the interpretation of the last will. Of these wills, the material portions will be found in the opinion of this court. The offer was rejected, on the ground that it was made too late and that the evidence was immaterial. The court sustained the exception to the disallowance of the credit, but subsequently ordered a re-argument, when the court, Penrose J., dissenting, dismissed the exceptions and confirmed the report of the auditing judge. From this decree this appeal was taken, the appellant alleging that the court erred in dismissing her exceptions and in rejecting her offer of the wills.

      George Biddle, J. Ooolce Longstreet and George W. Biddle, for appellant.
    Where a vendor sells land subject to an encumbrance there may arise from the contract of sale, 1. A covenant by the vendee to indemnify the vendor against personal liability for the encumbrance. 2. A covenant with the vendor by the vendee that the latter will assume the encumbrance as his own personal debt.
    In the first case the covenant is one between the vendor and the vendee for the benefit of the vendor only, who alone can sue on it; and the covenant to indemnify does not make the encumbrance the debt of the vendee personally, nor render him liable to the encumbrancer directly or indirectly.
    In the second case the vendee assumes the debt as his own, and renders himself and his estate liable directly to the encumbrancer, upon which covenant the latter may sue.
    The words “under and subject,” standing alone, imply a covenant by the vendee with the vendor, only to indemnify the latter, against liability for the encumbrance : Merriman v. Moore, 7 Norris 78.
    The encumbrancer may, in all cases, show by evidence, that the vendee has actually covenanted to assume the debt, and has thereby made it binding upon him and his estate.
    The assumption of the encumbrance by the purchaser as his personal debt is implied where such assumption is expressly stated as part of the consideration; and where the consideration stated in the conveyance consists of the enciitnbrance on the property, together with the cash paid at the sale. To the first of these categories belongs Lennig’s Appeal, 2 P. F. Smith 135; to the other Hoff’s Appeal, 12 Harris 200. This assumption is also implied from a statement in the vendor’s receipt, that the encumbrance itself, forms part of the consideration paid for the purchase, or from statements made at the time by the purchaser or other parties to the transaction, showing that to have been his intention: Taylor v. Preston, 29 P. F. Smith 436; Merriman v. Moore, 9 Norris 78; Campbell v. Shrum, 3 Watts 60 ; Moore’s Appeal, 7 Norris 450.
    The intention of Mr. Hirst to make the mortgage-debt upon the Logan Square property his own, is discovered by the wills, which the court rejected as evidence.
    In the first testamentary paper, he directs that his widow shall have a house purchased for herself out of his .estate; by the second (the codicil) he limits this amount to $25,000.
    In the third he repeats his intention, that his wife shall have purchased for her, a furnished house, thus showing his intention to have been a continuing one. In April of the following year, he purchased the premises in question for $26,000, thus carrying out liis intent. Within less than thirty days, by the codicil of May 14th 1874, he declares, that he has carried out the intention expressed in his (second) will, by having purchased these premises; and recites that as a reason fbr revoking the former provision for the purchase of the house, substituting in lieu thereof a devise of the premises to his wife in fee-simple.

      William A. Porter and Joseph A. Olay, for appellees.
    The question in this case had been decided against the appellant, in the three recent cases of Moore’s Appeal, 7 Norris 450; Thomas v. Wiltbank, 6 W. N. C. 477, and Samuel v. Peyton, 7 Norris 465.
    In the first of these cases, the court, commenting upon Hoff’s Estate, say, that “in the receipt subjoined to the conveyance, it was stated, that the payment in hand and the mortgage-debt and interest due, and to grow due thereon, to be paid by the said John Hoff, was the consideration for the premises. This is conclusive, and is the ground taken as to this case. The same may be said of the comments on Lennig’s Appeal. The decision in Moore’s Appeal amounts to this, that the clause “under and subject,” is a covenant of indemnity between the grantor and grantee only, unless there is an express agreement by the grantee to pay the encumbrance, or such an agreement may be implied from the circumstances. This is precisely the ground assumed by the appellees in the present case.
    The case of Thomas v. Wiltbank, is identical with Moore’s Appeal, which is cited in the opinion of the court. And a like citation is made in Samuel v. Peyton, as settling that “ the conveyance of land, under and subject to a mortgage or other encumbrance, is, of itself, a covenant of indemnity only for the protection of the vendor.”
    As between the testator and his devisee, there is nothing to show that the devise was more than a gift subject to the mortgage.
    The appellees are unable to see any equity or reasonable ground on which the devisee of the mansion house, can be permitted to cast the burden of the encumbrance upon it, on the personal estate of the testator, or upon other real estate devised to his children, subject to the provision for the widow, so far disinheriting the heirs-at-law ; nor can we discover any intention to do so in the will.
   Mr. Justice Trunkey

delivered the opinion of the court, March 1st 1880.

It is a settled rule that the devisee of land, acquired by a testator, subject to a subsisting encumbrance created by a former owner, takes it charged with the encumbrance, without any claim for its satisfaction out of the personal estate, unless the will clearly indicates an intention to charge such encumbrance on the personal assets, or the testator has so dealt with the encumbrance as to make it his proper debt. Upon an exhaustive review, Chancellor Kent stated the result of the cases to be, that as to wills, the testator may, by. express directions, charge such an encumbrance upon his personal assets, or even without express words, he may do it by dispositions and language 'that- are tantamount; as if, for instance, the continuance of the charge primarily on the land would be repugnant to some of the provisions of the will and defeat them. As to other acts of the purchaser in his lifetime, in order to charge his personal estate as the primary fund, he must make himself, by contract, personally and directly liable for the debt to the owner of the encumbrance: Cumberland v. Codrington, 3 Johns. Ch. C. 229. This seems to be the established doctrine in Pennsylvania. In the recent case of Moore’s Appeal, 7 Norris 450, the previous decisions are considered, and it is held that the words “ under and subject to the payment of a mortgage,” standing alone in a conveyance, imply a covenant by the vendee with the vendor, only to indemnify the latter against liability for the encumbrance. The Chief Justice said, “ Wherever it has been construed as a covenant to pay the encumbrance, which can inure to the use of the encumbrancer, and on which he can sue, either in his own name or that of the vendor, there has been an agreement to pay, either express, or implied from the circumstances. Such an implication arises in most cases where there is a sale by a vendor under articles, subject to the payment of the unpaid purchase-money.” But in a deed of conveyance, he says, the words “ under and subject ” import no such thing as a personal liability, and it is unwise to give an arbitrary, artificial meaning to words commonly used in contracts and conveyances, and thus entrap parties into engagements which they had no reason to suppose they were entering. The pivotal fact in Merriman v. Moore, 9 Norris 78, was an offer to prove an express agreement by the grantees in the deed to assume and pay the mortgages mentioned therein, and the ruling, as applied to that, is in accord with Moore’s Appeal. Both aflarm not only that such a contract is good when expressed, but also that it may be implied from circumstances attending and connected with the conveyance of the land.

The deed to Mr. Hirst was in consideration of $26,000, and granted the land, “under and subject, nevertheless, to the payment of a certain mortgage-debt” of $12,000, which clause is in the same words as the corresponding one in the deed in Moore’s Appeal. The receipt at the foot of the deed is for “ the sum of twenty-six thousand dollars, being the full consideration-money within named.” Nothing else in reference to the consideration and its .payment is shown by the deed or receipt. In fact, the grantee paid $14,000, and retained $12,000. Had the consideration been named in the deed as $14,000, the transaction would have been substantially asr it is now. “ The mortgage-debt is always part of the price, unless there be an agreement that the vendor shall take up the encumbrance. The purchaser, wherever he contracts to indemnify the vendor, takes the land cum onere. This is the clear understanding of the parties, and the value of the encumbrance will, of course, be deducted from the real value of the land. * * * The .only question in all these cases is, whether a right of action does not accrue to the mortgagee where the amount of the mortgage-debt is distinctly marked and separated from the price to be paid to the vendor, and by agreement between the vendor and vendee, is left in the hands of the latter for the use of the mortgagee.” Cumberland v. Codrington, supra. In Moore’s Appeal, the consideration named in the deed and receipt was $9500, the debt named in the “under and subject” clause “ $8500, and the interest due and to grow due thereon,” and the value of the property was $18,000. If the real consideration had been expressed, the mortgage-debt would not have been more distinctly marked, nor would there have been any better reason for holding the vendee personally liable to the mortgagee.

Hoff’s Appeal, 12 Harris 200, recognised the true rule, and it was held there was a contract by the vendee to pay the debt upon which the mortgagee could maintain a personal action. It is said, “Read $26,000 in place of $13,900; $14,000 for $5500, and $12,000 for $8400, and we have the exact statement of the present case.” But that would be a vicious reading — omitting the contract that was in one case and not in the other — for the deed to Hoff was in consideration of'$13,900, contained no reference to any mortgage or encumbrance, and in the receipt endorsed thereon, the grantor acknowledged the receipt from Hoff of $5500, which, it was stated, “ with a certain mortgage-debt, or principal sum of $8400, made of. the same premises by the above-named Abner Elmes to Isaac Harvey, Jr., and the interest due and to grow due thereon, to be paid by the said John Hoff, is in full the' consideration for the above-granted premises.” It would have been difficult to say the receipt did not embody an express contract by Hoff to pay the debt.

So, in Lennig’s Appeal, 2 P. F. Smith 135, there was a contract by the grantee to pay the encumbrance, set out in the deed and receipt as follows: “In consideration of $20,000 lawful money of the United States, paid, &c., and of the assumption of the said Frederick Lennig of the two mortgages herein afterwards particularly mentioned, being altogether the sum of $57,000;” and, “received, &c., $20,000, the cash consideration therein mentioned, which, together with the assumption of the mortgage-debts of $12,000 and $25,000, is in full consideration of $57,000 above mentioned.” Thus Lennig took upon himself the said debts, one of which he paid in his lifetime. It was with reference to these facts that the court said, it was certaift Lennig made the mortgage-debt his own, and charged it thereby on his personal estate; after having remarked that “an heir, devisee or purchaser taking land already charged with a mortgage, does not ipso facto make the debt his own, or subject his personalty in equity to its payment.”

To hold that anything in the deed to Mr. Hirst is sufficient to make the mortgage therein described his proper debt, would require a step far in advance of what has heretofore been deejned adequate for such result — a step that would reverse the rule so that the taking of land, under and subject to an encumbrance, would ipso facto create a personal liability in the vendee in favor of the encumbrancer.

The appellant proposed to give in evidence, in connection with the deed and will, two earlier wills and codicils in the handwriting of Mr. Hirst, which offer was rejected for two reasons: 1. The evidence was not submitted to the auditing judge; and, 2. It would not affect the construction of the will under which the account arises. It seems the Orphans’ Court were agreed in rejecting the offer; and the dissenting opinion, without allusion to the prior wills, rests wholly upon the language of the deed as creating a personal liability on the grantor, adopting the apochryphal doctrine which probably induced the Act of January 12th 1878, Pamph. L. 205. If the proposed testimony was pertinent, and, with the other evidence in the cause, sufficient to show that the testator had made the mortgage his own personal debt, or that he intended, in a clause in the will of doubtful meaning, to charge the encumbrance on the lot devised to his wife upon his personal assets, it ought to have been received and considered. Though, in strictness, not offered in time, it was of such character that its consideration would have created no material delay. Here the arguments were made as if it had been received and it will be so treated. Under some circumstances a revoked will may aid the interpretation of the last will, as a repealed statute may sometimes assist in arriving at the meaning of a subsequent enactment.

Three wills of Mr. Hirst are in evidence, each so well expressed as to be easily understood. The first, dated July 2d 1873, directed that his wife may apply so much of the proceeds of his estate as she may think proper to the purchase of a residence and furniture, the title of the residence to be made to her in fee-simple, and the furniture to be her property. It also bequeathed to her the personal property in his residence and office, committed to her as executor and trustee the control of his estate, gave her one-third of the net income during her widowhood, and, at last, the estate to be equally divided among his children. By codicil, added the next day, he limited the amount to be expended for a residence and furniture to $25,000. October 3d 1873, he made the second will, wherein he authorized his wife to purchase a house and take the title to herself in fee, furnish it, the furniture to be hers, and pay such prices for the same as she may see proper out of his estate; gave her the personal property in his dwelling and office, gave her one-third of the net income of his estate during life, the management of the estate, with right to apportion it among his children in amounts, equal or unequal, in her discretion, and should she die before the time fixed for distribution she may direct by will the apportionment, in equal or unequal amounts, in her discretion. The deed for the lot on Logan Square bore date, April 16th 1874, and nearly a month thereafter, by codicil, he devised said lot to his wife, and revoked the provision for purchase of a house. His last will, February 22d 1875, vests said lot in his wife in fee-simple, gives her the personal property in his dwelling, gives her one-third of the net income of his estate during her widowhood, and directs his estate to be divided finally, equally among his children. These wills have been severally noted because of their differences, that it may be seen what light, if any, each throws on the others, and if there be anything to evidence that the testator took upon himself as his personal debt the mortgage mentioned in the deed.

Mr. Hirst, it is said, was a great lawyer, to whom the whole law on this subject was fully and thoroughly known. Such a man knew what debts were primarily payable out of the personal estate of a decedent, and what encumbrances were a charge on the land taken by an heir or devisee. He knew that the under and subject” clause in his deed created no personal liability against him in favor of the mortgagee; and no will or codicil contains an expression which indicates his intention to charge his personal assets for payment of that mortgage. Not a word or act shows such dealing with the encumbrance as to make it his proper debt. His last will is too clear and free from ambiguity to permit anything outside to cloud it. That will and the deed leave the encumbrance where the law placed it when he took the land. It is urged that the prior wills evidence that he intended to give his wife a house and not a shell, a house free of charge. Each very clearly shows w'hat he intended when it was made. Had he died leaving the second as his will, its munificence to his wife could not have been shrivelled into the measure of the first; and now the last stands, materially differing in several respects from the second. Upon the point in question; in the first, the price of the house and furniture was limited; in the second, the price was without stint, until the codicil, and then the house was devised without a word to relieve of the encumbrance, but still no limit to the price of the furniture she might purchase; and last, the testator devises the house, and bequeaths the furniture in his dwelling. It seems impossible that he all the time meant substantially the same thing. If he intended to free the lot from the encumbrance, surely he would have so declared.

We are of opinion that there is not evidence that the testator made the mortgage his proper debt, and that his will does not indicate an intention to charge said mortgage-debt on his personal assets.

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


author: Mr. Justice Mercur

text:
    Seymour versus Hubert.
    As a general rule no defence can be made to actions on judgments; except defences relating to matters arising subsequent to the jndgment.
    2. Instead of an application to open an original judgment the coverture of each of the makers of the note, on which the judgment was entered, was severally pleaded and denied in the replication. Held, that the question of coverture was thus made one of the issues to be tried, and evidence was admissible in support of the issue thus raised; that it was substantially the same as if it had been framed in the original judgment, and the plaintiff thereby waived the right to exclude the evidence of coverture.
    January 20th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1879, No. 95.
    Scire facias to revive a judgment and quare executionem non, issued by Alice Hubert against Sarah Lewis and Lewis R. Seymour and Joseph P. B. Eddy, executors of Sarah Tingle, deceased.
    The judgment was entered on a judgment note given by Sarah Tingle and Sarah Lewis to Alice Hubert. It was for $125, and dated December 17th 1873. Sarah Tingle died in 1874. The scire facias to revive was returnable on the first Monday of February 1875. The defendants obtained a rule to set aside the scire facias, open the judgment and let them into a defence. This rule was discharged, and the court gave defendants five days within which to file affidavits of defence. Sarah Lewis and one of the executors filed affidavits of defence, alleging the coverture and minority of Sarah Lewis, and that the whole of the judgment had been paid by usurious interest. These affidavits the court thought were insufficient, and entered judgment for plaintiff. The defend^ ants took a writ of error, and the court reversed the court below, on the ground, that the judgment was improperly entered against the executors, for want of a sufficient affidavit of defence. The plaintiff then took a remittitur and ruled defendants to plead. The executors pleaded non est factum, coverture and payment, and Sarah Lewis non est factum, coverture, payment and infancy. The plaintiff replied coverture, non solvit and of age, and thereupon issue was joined.
    • Before the jury were called, the defendants asked leave to file an additional plea, that at the entry of the action the plaintiff was married, and the suit should have been brought by her husband. The plaintiff objected, and the court sustained the objection. (Fourth assignment of eri-or.)
    The plaintiff gave in evidence the record of the judgment and rested. The defendants then offered to prove that Sarah Lewis was a married woman, and was so at the time of the execution of the note and the entry of judgment thereon. Objected to and objection sustained. (First assignment of error.)
    Also to prove, that Sarah Tingle, the decedent, was a married woman and so continued until her death. Objected to and objection sustained. (Second assignment.)
    In charging the jury, the court said: “ When suit is brought to revive a judgment, you cannot show any defence except subsequent matter such as payment, unless the record shows that the judgment was improper.”
    The verdict was for plaintiff, and after judgment, defendants took this writ and alleged, that the court erred as set forth in the above assignments of error.

      John A. Burton, for plaintiffs in error.
    The record did not show that the question of coverture had been passed upon. Not showing coverture on the record, is not proof that these women were sole. Under the pleadings, the offer was material and relevant. The judgment was only evidence of what it established, a debt between the parties. The only question for the court was, whether the evidence supported the issue: Thompson v. Barkley, 3 Casey 263. But granting that the pleas were bad, they were waived by the replications : Rankin v. Duncan, 5 Esp. 38. The jury here found the fact that the defendants were sole, and decided that issue without evidence. The special plea, alleging coverture of the plaintiff, should have been allowed.

      George Tucker Bispham and Aaron Thompson, for defendant in error.
    Of course, where the fact of marriage appears of record, it can be set up by way of defence in an action upon the judgment, and this was the principle on which the cases of Dorrance v. Scott, 3 Whart. 309, Caldwell v. Walters, 6 Harris 79, and Quinn’s Appeal, 5 Norris 453, were decided. But where the marriage does not appear of record, the validity of. the instrument upon which it was entered, cannot be questioned in an action upon the judgment: Hartman v. Ogborn, 4 P. F. Smith 120.
    The remedy which the defendant in such a case has, is the ordinary and simple one of applying to the court to open the judgment or strike it off, and in such an application, the validity of the judgment may be inquired into.
    Of this remedy, they have already sought to avail themselves in the court below, and their application, as the record shows, was refused. They had their day in court on this motion, and they were not entitled to set up the same ground of defence on the trial of the action upon the judgment.
   Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

It may be conceded as a general rule, that in case of a scire facias to revive a judgment, no defence can be made except matters arising subsequent to the judgment. The merits of the original judgment cannot be inquired into so as to admit a defence which might have been set up in the original suit: Cardesa v. Humes, 5 S. & R. 65; Davidson v. Thornton, 7 Barr 128 ; Pitts., Cin. & St. Louis Railway Co. v. Marshall, 4 Norris 187. If the objection be to the validity of the former judgment, the proper mode is to apply to have it opened.

The original judgment in this case was entered on a judgment note. It is claimed that when the note was executed, both the makers thereof were married women, and the judgment therefore void. Instead of an application to open the original judgment, the coverture of each of the makers of the note was severally pleaded and denied in the replication. The defendant in error did not demur to the sufficiency of this plea nor move to strike it off, but accepted the issue tendered. The question of coverture' was thus made one of the issues to be tried. It was substantially the same as if it had been framed in the original judgment. The defendant in error thereby waived her right to exclude the evidence of coverture. Under the pleadings it was admissible, and if found to exist at the execution of the note, that issue should have been found in favor of the plaintiffs in error. The first and second assignments are sustained. The language covered by the third assignment, although correct as a general proposition, was not applicable to the issue being tried. The fourth assignment is not sustained. The name of the husband might well have been added to the record, but he had no right of action in himself alone.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Buckley versus Columbia Insurance Co.
    In a suit by a mutual insurance company to recover assessments on a premium note the defendants showed that the assessments were largely in excess of the liabilities'of the company, but it appeared that the amount the company was able to collect from the assessments was a sum much less than their liabilities ; Held, that the company could recover.
    January 20th 1880.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 95.

      Assumpsit by the Columbia Insurance Company against John Buckley and others, trading as Buckley & Co., to recover assessments made upon a premium note of defendants given by them for $1350. A narr. was filed, with special counts, to recover assessments made January 9th 1875, of 8, 20 and 10 per cent., total 38 per cent., and assessment made same date for 25 per cent, of said note — altogether for the sum of $850.50.
    The defendants, pleaded “ non assumpserunt payment' with leave,” &c.
    The plaintiff is a mutual insurance company, incorporated by the Act of February 25th 1860, Pamph. L. 81. It was provided in said act that the members of the company should be liable for the expenses and losses of the company' in proportion to the amount of their deposit notes; and that when an assessment had been mkde on a premium note given for a policy of insurance, and an action brought for the recovery of the assessment, the.certificate of the secretary of the company should be prima facie evidence of the assessment and the amount due. In September 1871, the defendants took out a policy for $3000, for which they paid a cash premium of $67.50, and gave a premium note for $1350, the policy to run for five years. On the 9th of September 1872, they again paid $67.50 cash premium.
    In 1872, the company called for another assessment of 7 per cent., and in 1873, one of 6 per cent., and in 1874, one for a like amount. These assessments were respectively entitled 14, 15 and 16. By the certificate of the secretary of the company, it appeared that on the 9th of January 1875, the company called for assessment No. 17 of 25 per cent, and on the same day one for 38 per cent, to cover liabilities which previous assessments had failed to meet. “This last was designated the deficiency assessment.” Suit was brought to recover this last assessment and No. 17, and the plaintiff recovered, but this court reversed the court below on the ground that they had failed to instruct the jury that it was necessary for the company to prove notice of the assessments (see report of case, 2 Norris 298). At the second trial, the plaintiff proved the above facts and that notice had been given to defendants. The latter then gave evidence to show that the assessments had been excessive, amounting to $119,500, while the total liabilities of the company were only $51,129.83. It appeared, however, from th.e testimony of defendant’s own witnesses and on cross-examination, that the amount received from the various assessments did not exceed $35,000, because a number of the makers of the premium notes were insolvent, and others had contested the company’s claims.
    In charging the jury, the court, Yerkcs, J., inter alia, said:—
    “ That by law’, directors are vested with authority to make assessments to meet losses, and that a reasonable discretion must be allowed, and it is not a defence unless the directors fraudulently or wantonly abused their power to make the assessment too large.”
    The verdict was for the plaintiffs, and after judgment thereon, the defendants took this writ and made a number of assignments of error, the thirteenth being the above assignment.

      Andrew Zane, Jr., and David G. Harrington, for plaintiffs in error.

      Sharp Alternan and H. M. North, for defendants in error.
   Mr. Justice Gordon

delivered the opinion of the court, February 9th 1880.

The thirteenth assignment of error is the only one that needs consideration, the others are not sustained. This assignment excepts.to the charge and is as follows: “That by law directors are vested with authority to make assessments to meet losses, and that a reasonable discretion must be allowed, and it is not a defence unless the directors fraudulently or wantonly abused their power to make their assessment too large.” The statement of the law as herein contained, without explanation, is too broad, and, considered aside from the facts, would be good cause for reversal. But, prima facie, by the act of incorporation, the certificate of the secretary is evidence of the rectitude of the assessment and of the amount due. Furthermore, as was said, by our brother, Mr. Justice Trunkey, in Rosenberger v. Washington Fire Insurance Co., 6 Norris 207, “ Managers may exercise a reasonable discretion in fixing the amount to be raised, for the charter must be construed in reference to its practical working.” It, therefore, rested with the defendants to show that the assessments.were so excessive as to be, in themselves, evidence of fraud or gross negligence. If, then, they had so arranged their evidence as to have proved the statement exhibited, showing assessments amounting to $119,000 to meet liabilities of only $51,000, and nothing more, they would have made out their case. But unfortunately for them they did much more than this; they proved that the company was on the verge of insolvency, and therefore had need of all its assets. From this view of the case the officers of the company instead of assessing too much did not assess enough. Furthermore, it was proved by a witness called by the defendants, that out of assessments Nos. 14,15 and 16, amounting, in all, to $35,000, but $14,500 were collected; by another, that of assessment No. 17 ($45,000), but $6000 were realized, and finally, of the deficiency assessment A ($100,000), as yet, only $15,000 had been collected. Thus, when all is summed up, there has not been enough received to meet the liabilities and expenses of the company. It also appears, from the testimony of these same witnesses, that the reason for these meagre returns, from assessments so large, is discovered in the fact that about one-third of the premium notes, held by the company, are worthless, because of the insolvency of the makers, and many of the others, like those of the defendants, are in process of litigation, and are therefore not available.

Thus it is, that the defendants, themselves, have shown good and substantial reasons for the assessments complained of; have shown that these officers have but complied with their duty in thus endeavoring to rescue the company from its embarrassments and save it from total insolvency.

Under a showing such as this, the error of the judge of the court below was harmless, since his charge upon this point might, and, perhaps, ought to have been binding.

Judgment affirmed.


text:
    Snyder's Appeal. Hughes's Estate.
    1. A separate use for a woman cannot be created unless she is covert or in contemplation of marriage. The fact that she becomes covert before the distribution of the estate does not affect the trust. Its validity is determined by the status of the woman at the time of the creation of the trust.
    2. A testator gave the residue of his estate to trustees, “ to pay over the net interest and income thereof annually, or oftener, if they may see fit, unto my four daughters, A., K., F. and T. II., share and share alike, for their sole and separate maintenance, education and support until my youngest child shall arrive at the full age of twenty-one years : and as soon as my said youngest daughter shall have attained her said majority, then I direct my said executors to divide all the rest, residue and remainder of my estate then in their possession, equally between my said four daughters, if then living, and to the issue of any of them who may be then deceased, such issue taking such share only between them as his, her or their parent would have bad and taken if living; in such way and manner, however, that the same shall be for their sole and separate use and support, and shall not in any way be liable to, the control, debts or engagements of their then present or any future husband or husbands they, or either of them, may have.” The testator made his will in 1870, and died a few weeks thereafter. The youngest daughter attained her majority in 1878. When the testator died, none of the daughters were married or in contemplation of marriage. At the time the youngest daughter arrived at her majority, one of the daughters was married and another was betrothed. Held, that as none of the daughters were married, nor in contemplation of marriage at the time of the testator’s death, the trust for their sole and separate use fell.
    8. McBride v. Smyth, 4 P. F. Smith 245, followed.
    January 21st 1880.
    Before Sharswood, C. J., Merctjr, Gordon, Paxson, Trunkey and Sterrett, J J. Green, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1880, No. 30.
    , Appeals of Charles J. Snyder and others from the decree of the court in the distribution of the balance in the hands of the executors and trustees under the will of George Hughes, deceased.

      George Hughes died January 15th 1871, leaving a will dated December 23d 1870, wherein, after certain specific bequests, the testator left the residue of his estate to trustees in trust to pay the income to his four daughters, until the youngest should arrive at the age of twenty-one years, and upon her arriving at that age, the will provided:—
    “Then I direct my said executors to divide all the rest, residue and remainder of my estate, real, personal and mixed, then in their possession, equally between my said four daughters, namely, Annie, Kate, Fannie and Teresa Hughes, if then living, and to the issue of any of them who may be then deceased, such issue taking such share only between them as his, her or their parents would have had and taken, if living, in such a way and manner, however, that the same shall be for their sole and separate use and support, and shall not in any way be liable to the control, debts or engagements of their then present or any future husband or husbands they, or either of them may have.”
    At the time of the death of the testator, neither of his said daughters was married nor in contemplation of marriage.
    The youngest daughter, Teresa, became twenty-one years of age August 26th 1878, at which time one of the said daughters, Fannie, was married to Philip R. Muller, and another, Annie, was engaged to be married to Charles R. Snyder, the former having been married November 30th 1876, and the latter, October 16th 1878. Neither Kate nor Teresa are now married nor in contemplation of marriage.
    At the audit of the account of the trustees, the auditing judge, Penrose, J., held that as to Kate and Teresa, the trust fell, but as to Mrs. Muller and Mrs. Snyder, they held that as one was married and the other contemplating marriage at the time that the youngest child arrived at twenty-one years of age, the trust must be sustained as to them, and accordingly awarded their shares to be held in trust for their sole and separate use.
    Exceptions were filed to this adjudication which the court dismissed, and confirmed the adjudication. The following was the opinion of the court below, Penrose, J.:—
    “ That a trust for separate use cannot exist, except for a woman married or contemplating marriage, is too well established to need the citation of authority. It is indeed implied in the very nature and definition of such a trust, which is purely a creation of equity for the protection of woman in a state of coverture, and therefore no more applicable to a single woman than it is to a person of the opposite sex.
    “ It is true that in England, if created for a woman then unmarried, such a trust is not absolutely void, but simply suspended, and becomes operative in case of her [subsequent marriage, if, in the meanwhile she has not exercised the power of alienation, as she may do.
    “ But in Pennsylvania the views of Lord Cottenham, in Massey v. Parker, 2 Myl. & K. 174, overruled subsequently in Tullett v. Armstrong, 1 Beavan 1; 4 Mylne & Craig 377, were adopted in Hamersly v. Smith, 4 Whart. 126, and it is here settled by an unbroken line of cases, that a trust for separate use, if not efficacious at the time appointed for it to go into effect, cannot become so by reason of any subsequent marriage. So that, as said in McBride v. Smyth, 4 P. F. Smith, 250, “ nothing else but a legislative enactment can change the law as thus established.”
    “ The case before us, however, is not affected by this principle. It is true that when the will was made, and when the testator died, his daughters were all unmarried. They were then young children, the youngest but thirteen years of age. He was aware, for knowledge in this respect must be presumed, that a trust for separate use could not, under these circumstances, be created. He does not attempt to do it. Evidently acting under professional advice, he defers the time at which his daughter’s estates are to take effect, and gives his entire property to trustees, upon whom he confers certain active duties. These duties are : first, to receive and apply the income for a given period; and, second, to make conveyances when that period has expired. The character of the conveyances so to be made is simply indicated by the testator, the actual conveyance being left to the trustee, and whether the daughters shall receive legal or equitable estates depends upon their status when the conveyance is to be made.
    “ The time at which this is to be done is when the youngest daughter reaches the age of twenty-one years, when the trustees are directed to make division of the estate in such way and manner, as that the share of each daughter shall be for her sole and separate use and support, and shall not in any way be liable to the control, debts, or engagements of her then present or any future husband. Of course, if the daughters all remain unmarried, the direction as to the separate use will not take effect, nor can it avail so far as any future husband is concerned, but the provision is executory, and to be construed liberally.
    “ It is as if he had said, ‘ Should any of my daughters be then married or contemplating marriage, I direct that their shares shall be settled by my said trustees for their separate use, the shares of the others to be conveyed to them absolutely.’ ‘Executory trusts.’ says Mr. Smith, ‘are trusts raised by a stipulation or direction in a will, &c., to make a conveyance, settlement, &c., to uses, or upon trusts which do not appear to be formally and finally declared by the instrument containing such stipulation.’ In the case of trusts executed, he adds, ‘ The limitations may be deemed to receive their intended shape from the words of the will, &c., itself. But in the case of trusts executory, the party may be fairly understood to leave the limitations to be perfected by the conveyance, settlement, &c., stipulated or directed by him, and to.have intended that the conveyance, settlement, &c., should avoid or correct any relative inconsistencies or technical obstacles, arising from impropriety of expression, to the general scope of the conveyance, settlement, &c., so directed by him.’ Fearne Cont. Rem. *118, Id. 113-14 ; Atherly on Marriage Settlements *121; 4 Kent *219.
    “ It will thus be seen that the case differs very essentially from McBride v. Smyth, 4 P. F. Smith 245, which has been cited as an authority against the position here taken. The trust there was not executory in the sense defined above. The estate given to the trustees terminated ipso facto, when the youngest child became of age, and no power or duty with regard to the settlement or division then to be made was conferred upon them. The testator undertook to make the division himself, and, of course, the invalidity of the trust for separate use was determined by the state of facts at the time of his death. But here the estate remains in the trustees, and until they have exercised the power given, does not pass to the daughters at all. Until then, though in one sense vested, it is as already stated,.uncertain whether their interests will take effect as legal or as equitable estates. If married, the trustees will make settlements to their separate use; if unmarried, they will take absolutely.
    “ It cannot be doubted that a testator may give an estate in futuro, either- in remainder or by way of executory devise, to his daughter, if she be then unmarried, but if married, to trustees for her separate use. There is nothing illegal or against the policy of the law or any rule of propriety in such an alternative limitation ; and this, in effect, is precisely what has been done in the case now before us. ■
    “ The hostility to trusts which for a period characterized the decisions of our Supreme Court has passed away. They are no longer regarded with disfavor; on the contrary, within proper limits, they are encouraged, especially where intended for the protection of the beneficiary. See Earp’s Appeal, 25 P. F. Smith 119 ; Ingersoll’s Appeal, 5 Norris 245.
    “ The question presented in this case is one of importance, and until a higher court shall say that the division of the testator’s estate to be made by the trustees at the time his youngest child becomes of age, shall not be in such manner as that the shares of his married daughters shall be for their sole and separate use, we must decline to permit it to be made in any other way.”
    Exceptions dismissed, and adjudication confirmed.
    Ashman, J., filed a dissenting opinion.
    From this decree Mrs. Snyder and Mrs. Muller took this appeal.

      Theodore F. Jenlcins, for appellants.
    It is submitted that the learned judge has not shown any controlling distinction between the present case and that of McBride v. Smyth, 4 P. F. Smith 250. In the latter, the estate, as in this, was vested in the trustees, with active duties, until the youngest child became twenty-one years of age. The time of distribution was the same, namely, when the youngpst child became twenty-one years of age. And the status of the daughters at the time fixed for distribution was the same, as she was then married. But the status of the woman at the time of distribution does not fix the validity of a separate use.
    The law of Pennsylvania is that the validity of a separate trust depends upon the status of the woman at the time of the creation of the trust, when she must be either married or in immediate contemplation of marriage, or else there is no meaning in the above language quoted from McBride v. Smyth. See also Yarnall’s Appeal, 20 P. F. Smith 339; Ogden’s Appeal, Id. 501; Wells v. McCall, 14 Id. 207.
    The court also endeavors to support its decision on the ground that the trust was executory. It is clear that the trust cannot be sustained on this ground.
    No appearance for appellees.
   Mr. Justice Sterrett

delivered the opinion of the court, March 1st 1880.

The testator gave the residue of his estate to his executors, in trust, to collect the rents, interest and income thereof, and after deducting taxes, expenses, &c., to pay the same annually, or oftener if they saw fit, to his four daughters, share and share alike, for their sole and separate maintenance and education, until, the youngest obtained the age of twenty-one years ; at which time his executors were directed to divide all his estate, then in their possession, equally between his four daughters, “ in such way and manner, however, that the same shall be for their sole and separate use-and support, and shall not in any way be liable to the control, debts or engagements of their then present or any future husband or husbands they or either of them may have.”

The testator made his will in December 1870, and died a few days thereafter. The youngest daughter attained her majority in August 1878, prior to which time one of the four was married; another, then betrothed, was married shortly afterwards, and both husbands are living. The other two daughters remained single; and as to them no question arises. It is conceded that the will was inoperative to create any trust as to their respective shares, and consequently they are entitled to take them absolutely. But, as to the married daughters, the contention is that inasmuch as the one was actually married and the other in immediate contemplation of marriage at the time fixed by the testator for the division of his estate, the trust for their separate use took effect at that time; that their then status determined the nature of their interest.

While the English doctrine appears to be, that a trust for separate use may be effectually created, notwithstanding the woman is unmarried at the time, and no particular marriage is then in contemplation, and that the trust, although suspended by the cessation of coverture, will re-attach on a subsequent marriage, it is not so with us. In McBride v. Smyth, 4 P. F. Smith 245, Mr. Justice Strong says, “ Whatever may be the rule in the English courts, it is here too well-established to be disturbed by anything else than a legislative enactment, that a separate use for a woman cannot be created unless she is covert, or unless in immediate contemplation of her marriage.” The same doctrine is re-asserted in Wells v. McCall, 14 P. F. Smith 207, where it is said, that all the cases which decide, that on the termination of coverture the trust falls and is not revived by a second marriage, prove that the marriage must be in immediate view at the time the trust is created, for if any marriage would answer to the provision for the trust, a second would as well as the first. After referring to the opposing principles underlying our doctrine of trusts, and springing, on the one hand, from the private right of the donor to control his gift; and, on the other, from that public policy which forbids restraints on alienation, it is said, that the necessary consequence of this conflict has been “a compromise which yields the doctrine of policy so far, as to enable the donor to impose a trust upon his gift when it is done in immediate contemplation of marriage.” This appears to be the utmost limit to -which this court has gone in favor of private right as against public policy, and it would perhaps be unwise to go any further. Trusts for coverture, either actual or in contemplation at the time of their creation, have some foundation in reason which cannot apply to coverture in the more remote future. In the former, the testator is presumed to know the then existing or contemplated alliance, and has the data on which to base an intelligent judgment as to the propriety of creating a trust. While in the latter, he can have nothing more than a bare possibility as a guide.

The case before us is almost identical in principle with McBride v. Smyth, supra. In that case, the testator gave his unmarried daughter an estate for her sole and separate use, to take effect when his youngest child should attain the age of twenty-one years; and it was held that the will was inoperative as to the trust, for the reason, that it was not created in immediate contemplation of marriage. In the present case, the testator directed his executors to divide his estate when his youngest daughter attained her majority, and enjoined on them to do it in such “way and manner,” as that the respective shares of each daughter should be for her sole and separate use. There is practically no distinction between the cases, unless we hold that the testator could confer a power on his executors, as trustees, which according to all our cases he himself did not possess. If we were to so hold, it would be difficult to foresee the results to which it would lead.

We are of opinion, that the testator’s will neither created a separate use for his daughters nor empowered his executors to do so.

The decree o’f the Orphans’ Court is reversed, at the costs of the appellees, to be paid out of the funds of the estate in their hands, and the record is remitted for further proceedings.