author: by Sharswood, J".

text:
    Reber versus Wright et al.

    1. An action was against Beber alone, the declaration was upon a judgment in another state against Reber and Cretin. Held, that the record was properly amended by adding Cretin's name ; the declaration showing that there was an omission.

      2. The certificate to the record in another state was that “the foregoing copy of record is truly taken and correctly copied from the records of judgments of said court, remaining in my office." The presumption was that it was a copy of the whole record.
    3. Where the foreign record showed a general appearance by attorney, this is primfi, facie sufficient to give the court jurisdiction.
    4. The object of the Act of April 15th 1851 (Judgments in another State) was to provide for the case of an attempt to make a resident of this state party to a suit in another state by service of notice on him in this state.
    5. No sovereignty can extend its process beyond its own territorial limits, to subject other persons or property to its judicial decisions.
    6. When the courts of a sister state have jurisdiction, its judgments are final and conclusive in every other state.
    7. Where there was a plea of nul tiel record and issues of fact, and a jury was sworn to try the issues generally: the swearing of the juiy was to be referred to the issues they were competent to try.
    8. Pending issues of law may be decided by the court either before or after the verdict on the issues of fact.
    9. It seems best to dispose of issues of law first.
    May 8th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 41, to May Term 1871.
    This was an action of debt, commenced October 31st 1868, by Edmund Wright and J. B. Levering against William Beber. On the same day a declaration was filed, that the plaintiffs “ complain of William Beber, the defendant, that he render unto them $294.83,” and that the plaintiffs at a Court of Common Pleas of Knox county, Ohio, on the 5th of December 1867, recovered a judgment for $280 debt and $14.83 costs, “ against the said William Beber and a certain Dennis Cretin,” * * * whereof the said William Beber is convict,” &e. On the 25th of April 1870 the court granted a rule to show cause why Cretin should not be made a co-defendant with Beber. This rule was served personally on Cretin, and on the 6th of June he answered: “ That at the date of the commencement of the said suit, he was, ’and still is, a resident of Chambersburg. That he was omitted from the said action as a co-defendant, not through any mistake of the said plaintiff, but of purpose and through design. That it is not competent in law, under the provisions of any of the Acts of Assembly of this Commonwealth, to.add his name as a co-defendant in the said action, because the said suit purports to have been brought upon the record of a judgment of the Court of Common Pleas of Knox county, Ohio, against the above-named William Reber, and for the further reason that the said change in the names of the defendants introduces a new cause of action.” On the 7th of June the court ordered that the record shall be amended by adding the name of Cretin as a co-defendant, with William Reber.
    The defendant Reber pleaded nul tiel record; and that the judgment was rendered in the court of Knox county, Ohio, without any competent jurisdiction in that court, the defendant being at the date of issuing tjie writ a citizen of Pennsylvania, and the writ never having been served upon him.
    The cause was tried, October -21st 1870, before Rowe, J.
    The plaintiffs offered in the evidence an exemplification of1 the record of the judgment in the Court of Common Pleas of Knox county, Ohio, on which the suit was founded, viz.:—
    “Edmund Wright and J. B. Levering v. Dennis .Cretin and William Reber. Pleas at the Court-house in, &c., on the 5th day of December 1867, before the Hon. Thomas C. Jones, judge, &c., of the Sixth Judicial District, &c. Be it remembered, .that on the 10th of March 1865, the said plaintiffs, &c., filed in the office of the clerk of our aforesaid court, a transcript of the proceeding had by and before H. Phillips, Esq., a justice of the peace,” &c.
    The record of the justice was between the same parties; the claim was for $297, -and summons issued, “ May 4th 1865, for Dennis Cretin and William Reber, returnable May 8th 1865, and delivered the same to C. Majors, constable, and returned in due time endorsed. Received this writ May 5th 1865, and served by copies on the same day, on the within-named defendants, by leaving it at their place of residence. * * * May 8th 1865, the defendants failed to appear, but made default. The plaintiffs appeared and demanded a trial, &c. Thereupon it is, on said 8th day of May, A. D. 1865, considered and adjudged by me, that the plaintiffs, Edmund Wright and J. B. Levering, recover of the.defendants, Dennis Cretin and William Reber, the sum of $297, damages and costs,” &c.
    On the 9th of May, the record reciting the foregoing judgment, and that “ the said Dennis Cretin and William Reber intend to appeal therefrom to the Court of Common Pleas of Knox county,” shows that W. H. Buckland undertook “ that the said appellant, if judgment be adjudged against him on the appeal, will satisfy such judgment and costs, &c., and that the said appellant will prosecute his appeal to effect,” &c.
    Yarious steps were taken in the case after it had been removed into the Court of Common Pleas of Knox county; all which were specifically stated in the exemplification. One of the entries was. “ This cause came on to be heard; upon the motion of defendants to strike petition from the files, and was argued by counsel, on consideration whereof the court do overrule said motion, and leave is given defendants to answer. Thereupon on motion, and it appearing to the' court that the security of the appeal given by defendants in this case is insufficient, they are thereby ruled to give additional security within sixty days from the rising of court, and this cause is continued upon application of defendants, and at their costs,” &c.
    It further appeared that the cause, on the 16th of August 1867,, was “ continued on defendants’ motion. And now, &c., this day came the parties, by their attorneys, and neither party demanding a jury, submit this cause to the court upon the issue joined, and agree that judgment may be rendered in favor of plaintiffs and against defendants, for the sum of $280 and costs. It is therefore considered and adjudged by the court, that said plaintiffs recover of said defendants the sum of $280 and the costs of this proceeding, taxed at $14.83, in accordance with the terms of said agreement.”
    The certificates were:—
    “ State of Ohio, Knox county, ss.
    “ I, Alexander C. Elliott, Clerk of the Court of Common Pleas, in and for said county, do hereby certify that the foregoing copy of record, is truly taken and correctly copied from the records of judgments of said court (Law Record F. F., pages 168 to 170 inclusive), remaining in my office. In testimony whereof I hereto set my hand and official seal, at Mount Vernon, in said county, this 13th day of August, a. d. 1868.
    “ Alexander C. Elliott, Clerk of Court “ Common Pleas, Knox Co., Ohio.”
    “ The State of Ohio, Knox County, ss.
    “I, Thomas C. Jones, Presiding Judge of the Court of Common Pleas, in and for the county of Knox and state of Ohio, do certify that Alexander C. Elliott, whose signature appears to the foregoing attestation, was at the date thereof, and still is, clerk of said court, duly elected and qualified ; that the foregoing is his genuine signature, and that his attestation aforesaid is in due form of law.
    “ In testimony whereof I have hereunto set my hand and seal this 26th day of August, a. d. 1868.
    “ T. 0. Jones, [l. s.]

      “ Pres. Judge of said Court.”
    The defendants objected to the evidence:—

      May 18th 1871,
    1. Because the certificate of the clerk does not state that it is a full and complete copy of the whole record and of all proceedings.
    2. Because the record shows that the proceedings commenced before a justice of the peace, and an appeal taken by one of the defendants without saying which one.
    3. Because the record on its face shows that there was no personal service on the defendants.
    4. Because the record shows there was no trial of the case, but a judgment confessed by attorney.
    The court admitted the offer and sealed a bill of exceptions.
    The plaintiffs closed, and the defendants submitting no evidence, requested the court to instruct the jury:—
    “ That the record in this case does not show that personal service of the notice or process by which the suit was commenced, upon which said judgment was obtained, was made in the state of Ohio, and that therefore the plea to the jurisdiction of the court filed in this case, under the Act of 15th of April, A. D. 1851, is good and must be sustained.”
    The court refused the request, and the verdict was for the plaintiffs for |348.03.
    The defendant Reber took a writ of error.
    He assigned for error :—
    1. Adding the name of Dennis Cretin as defendant.
    2. Admitting the exemplification of the Ohio record.
    3 or 4. Answering the defendant’s point in the negative, and instructing the jury to find for the plaintiff.
    5. The issue of nul tiel record was tried by the jury, and a general verdict entered on all the issues.
    6. Not entering judgment non obstante veredicto for the defendant on the plea of nul tiel record.

      J. MeD. Sharpe and Gr. Brewer, for plaintiff in error.

      C. B. Maglaughlin and L. S. Clarke, for defendant in error.
   The opinion of the court was delivered,

by Sharswood, J".

The 1st assignment of error is to the order of the court- below, adding the name of Dennis Cretin as a defendant in the action. This order was made after a rule on the said Dennis Cretin to show cause why he should not be made a party to the record as co-defendant with William Reber. This rule was granted on the 25th day of April 1870, returnable on or before the first Monday of June following. A certified copy of it was placed in the hands of the sheriff of the county, who returned on oath that on the 12th day of May 1870 he had served it personally on Dennis Cretin by giving him a true copy of “this writ,” and made known the purport thereof. On the 6th of June Dennis Cretin filed an answer, in which he objects to being made a defendant, because at the commencement of the suit he was and still is a resident of Chambersburg, and that he was omitted from the said action as a co defendant not through any mistake of the said plaintiff, but of purpose and through design ; and because the said suit purports to have been brought upon a record of a judgment of the Court of Common Pleas of Knox county, Ohio, against the above-named William Reber, and for the further reason that the said change in the names of the defendants introduces a new cause of action. The court, notwithstanding this answer, made the rule absolute. None of these grounds of objection were valid. Although the suit was originally commenced against William Reber alone, the declaration was upon a judgment against him and Dennis Cretin. It was apparent then, upon the face of the record, that there was the omission of the name of a party who ought properly to have been made a defendant. The Act of Assembly of May 4th 1852, Pamph. L. 574, invests the courts with power “to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.” Nor was it true, by the declaration, that the suit purported to have been brought upon a record of a judgment against Reber, or that the addition of the name of the other defendant in that judgment introduced any new cause of action. There was no error, therefore, in the order of the court complained of.

The 2d error assigned is to the admission in evidence of the certified copy of the record of the judgment declared on. The first reason given, that the certificate of the clerk does not state that it is a full and complete copy of the whole record and of all proceedings, has not been pressed. The certificate is, that “ the foregoing copy of record is truly taken and correctly copied from the records of judgments of said court remaining in my office.” It is to be presumed, under such certificate, that it is a copy of the whole record, according to the cases of Edmiston v. Schwartz, 18 S. & R. 135; Voris v. Smith, Id. 334; Harper v. Farmers’ and Mechanics’ Bank, 7 W. & S. 204; Clark v. Depew, 1 Casey 509; Eberts v. Eberts, 5 P. F. Smith 110. The second objection was, “because the record shows that the proceedings commenced before a justice of the peace, and an appeal taken by one of the defendants, without saying which one.” Without pausing to inquire whether this would be a valid objection to the record, if it was true, it is founded upon a mistake of fact. The recital of the record is; that “ the said Dennis Cretin and William Reber intends to appeal,” and although it proceeds to use the word appellant in the singular number, that is evidently a clerical error as much as the singular of the verb “intend.” The third objection was, “ because the record upon its face shows that there was no personal service upon the defendants.” The record disclosed a service by capias left at their place of residence. Without any evidence that they were not at the time residents within the jurisdiction of the court, such a service was sufficient — but moreover it is plainly stated that there was a general appearance by attorney. We have heretofore held, in a case not yet reported, that such appearance is primfi facie sufficient to give the court jurisdiction. The fourth objection was, “ because the record shows there was no trial of the case but a judgment confessed by attorney.” But if prinffi facie the appearance by attorney was sufficient to give the court jurisdiction, a confession of judgment by him was clearly within the scope of his authority as such: Cyphert v. McClune, 10 Harris 195. We think, therefore, that these objections were all rightly overruled, and that there was no error in the admission of the record in evidence.

The 3d assignment of error is, that the learned judge below erred in answering in the negative the defendants’ point — which was in substance that the record did not show a personal service of process upon the defendants, and that therefore the pdea to the jurisdiction of the court, filed in the case under the Act of April 15th 1851, Pamph. L. 614, was good, and must be sustained. The whole object of the 9th and 10th sections of that Act of Assembly was to provide for the case of an attempt to make a resident of this state party to a suit in another state by the service of notice or process upon him in this state. The 9th section provides that “ it shall be competent and lawful for a defendant in any action of debt upon a judgment of a court of another state, for maintaining a plea in bar to said action, to prove the service of the notice or process by which the original action was made on him in this state.” The 10th section was intended merely to provide that if the record on its face, where there was personal service, did not show that it was made in such foreign state, it should be sufficient to maintain the plea to the jurisdiction. It surely did not mean to say that where a service was made by leaving a copy at the residence of the defendant, or where there was a voluntary appearance either in person or by attorney, the plea to the jurisdiction should be thereby maintained.” Perhaps there was no occasion for the act. It seems to have been passed ex majori cautela. Such personal service out of the jurisdiction of the court in which the judgment was rendered, clearly would not give jurisdiction. All the authorities concur in this. “ No sovereignty,” says Mr. Justice Story, “ can extend its process beyond its own territorial limits to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals:” Story on Conf. ch. 14, § 539. To the same effect is Rogers v. Burns, 3 Casey 527. But to give the Act of 1851 the broader construction here contended for, would be in violation of the Constitution of the United States, and the Act of Congress passed in pursuance thereof. The Constitution, Art. IV., § 1, provides that “ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and.the effect thereof.” Congress has, by a general law — the Act of May 26th 1790 — prescribed the effect of such judicial proceedings by enacting that “ they shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.” It would be an affectation of learning to cite the numerous decisions which have established that where the court of a sister state has jurisdiction, its judgments are final and conclusive in the courts of every other state. It is unnecessary to decide what would have been the effect had it been proved that the defendants had in fact no residence in the state in which the judgment was rendered, and that the attorney had no authority to appear to the action. No such evidence was given or offered in the court below. There is nothing in the 4th error assigned, that the learned judge erred in giving a binding instruction to the jury to find a verdict in favor of the plaintiffs. As the judgment was conclusive evidence of the debt, this it was his duty to do.

The 5th assignment of error is, that the issue of nul tiel record was tried by the jury instead of the court. But this does not appear. The swearing of the jury having been generally to try the issue, is to be referred to such issue as they were competent to try. Surely, if there were a general demurrer pending, it could not be considered that they were sworn to try that. Pending issues, of law maybe decided either before or after a verdict upon issues of fact. It is within the discretion of the court, and the practice has varied. It is perhaps most advisable that they shall be disposed of first, for that may save the necessity of a jury trial. Here the general judgment by the court was necessarily a judgment upon the issue of law raised by the plea of -nul tiel record.

Judgment affirmed.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Postlethwaite’s Appeal. Shirey’s Estate.
    1. On a petition for a decree for tbe payment of legacy out of land, under 59th section of Act of February 24th 1834, all the parties being before it, on refusing a decree to the petitioners, the court may decree the legacy to the respondent if entitled.

      2. The jurisdiction of the court attached on the presentation of the petition, and it had the same control of the subject as a court of equity.
    3. In construing a will, the circumstances of the testator, his family, the amount and character of his property, should be taken into consideration.
    4. A will with two residuary clauses construed.
    May 9th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of Franklin county: No. 44, to May Term 1871. In the estate of Adam Shirey, deceased.
    The proceedings were commenced August 11th 1870, by the petition of A. G. Postlethwaite and Elizabeth his wife, late Elizabeth Shirey, and J. Wesley Shirey, against James C. McLanahan, administrator of Milton Shirey, deceased, Elizabeth Shirey, widow, and Missouri, Myron, Homer and Abner E. Shirey, children of said Milton Shirey.
    Adam Shirey died in May 1862, leaving a widow, Elvinia, and three children, J. Wesley and Milton (deceased) above-named by a former wife, and Elizabeth Postlethwaite, by his surviving widow. At the time of his death he owned a small amount of personal property, and the following described real estate:—
    A farm in Antrim- township, Franklin county, containing about 153 acres.
    A house and lot of ground, situate in the borough of Green-castle aforesaid, and at the time of his decease in the tenure and occupancy of his son Milton Shirey.
    A house and half lot of ground, situate in same borough, in which decedent resided at the time of his death; and
    A half lot of ground in same borough, on which was erected a shop.
    He left a will dated May 3d and proved May 22d 1862, by which, after directing his debts, funeral expenses, &c., to be paid, he further provided : * * *
    “ And after payment thereof and Every part thereof I Will and Bequeath to my Beloved Wife Elvinia The House and half of the Lot in which we now live and the Division fence to be made and paid for out of Estate Together with the Interest of Two Thousand Dollars to be paid to her Annually as long as She Remains my Widow the said Dower to Remain in the Land and the household Furniture to Remain as it now is as long as my Wife Remains my Widow I Will and Bequeath all the Rest of my property both Real and personal to my three Children Except the house and Lot in the Possession of my Beloved son Milton Shirey which I give and Bequeath to him before any Divide of my property is made it is my Wish According to my Wife’s Agreement with me that She will not claim the three Hundred Dollars that the law Allows to Widows and in Case of Daughter Elizabeth Rebaugh Should Die without Issue that her share of my Estate Shall be Equally Divided Among her Surviving Brothers or their Children and all the Rest Residue and Remainder of my Goods Chattels Ready Money Effects and Other of my Estate Whatsoever or Wheresoever both Real and personal I give and Bequeath the same to my son Milton Shirey and I Allow my said Son to Sell my Shop and half lot of Ground Together with my Farm in Antrim Township whenever he may think proper to the best Advantage and I Appoint my Son Milton Shirey my Sole Executor of this my Last Will and Testament.”
    The petition set out as above, and that the executor, Milton Shirey, sold the farm, subject to the $2000 to raise the provision for the widow, and that the farm was afterwards conveyed to him by the purchaser; that Milton died in August 1864, leaving a widow and children as above stated, and that Elvinia, the widow of the testator, had married on the 10th of March-1870. The prayer was that the court would decree to Elizabeth Postlethwaite and J. Wesley Shirey, each one-third of the $2000 payable on the marriage of the testator’s widow, under the last residuary clause.
    The respondents answered, averring that they were entitled to the whole of the $2000, as representing their father, the question being under which of the residuary clauses the $2000 passed.
    The court refused the decree prayed for, and decreed the fund to Milton Shirey’s children.
    The petitioners appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      L. W. Sail and F. Jordan, for appellants,
    cited 1 Jarman on Wills 160, 517, 578; Hogan v. Jackson, Cowper 299, s. c. 8 B. P. C. 388; Hansell v. Hubbell, 12 Harris 244; Redfield on Wills 350, 446; Allum v. Fryer, 3 Q. B. 442; Roe v. Nevill, 11 Id. 466; Malone v. Dobbins, 11 Harris 296; Amelia Smith’s Appeal, 11 Id. 9; Lipman’s Appeal, 6 Casey 180; Bender v. Dietrick, 7 W. & S. 284; Horwitz v. Norris, 10 P. F. Smith 261; Jones’s Appeal, 3 Grant 171.

      J. Mel). Sharpe (with whom was W. MeLellan), for appellees,
    cited Findlay v. Riddle, 3 Binn. 149 ; Beltzhoover v. Costen, 7 Barr 16; Horwitz v. Norris, 10 P. F. Smith 261; Lynn v. Downes, 1 Yeates 518; Rewalt v. Ulrich, 11 Harris 388; Earp’s Will, 1 Pars. 457; Hoopes’s Appeal, 10 P. F. Smith 220; 1 Jarman 363, 527; Turbett v. Turbett, 3 Yeates 187 ; Lewis’s Estate, 3 Whart. 162; German v. German, 3 Casey 116; Stickle’s Appeal, 5 Id. 234; Newbold v. Boone, 2 P. F. Smith 167; Hunter’s Estate, 6 Barr 97; Shreiner’s Appeal, 3 P. F. Smith 106; McGlaughlin v. McGlaughlin, 12 Harris 20; Bayard v. Atkins, 10 Barr 18; Delameter’s Estate, 1 Whart. 362; Nyce’s Estate, 5 W. & S. 254; Michell v. Michell, 5 Madd. 16; 2 Jarman 724; 1 Redfield 426; 2 Id. 440.
    May 18th 1871,
   The opinion of the court was delivered,

by Sharswood, J.

There was no incongruity as is supposed in the decree below dismissing the petition of the appellants with costs, and at the same time making a decree in favor of the respondent, awarding the principal of the legacy to him. The 59th section of the Act of Assembly of February 24th 1834, Pamph. L. 84, provides that “ When a legacy is or shall be hereafter charged upon or payable out of real estate, it shall be lawful for the legatee to apply by bill or petition to the Orphans’ Court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed, whereupon such court having caused due notice to be given to such executor and to the devisee or heir, as the case may be, of the real estate charged with such legacy, and to such other persons interested in the estate as justice may require, may proceed according to equity to make such decree or order touching the payment of the legacy out of such real estate as may be requisite and just.” It is evident that the jurisdiction of the court having attached by the presentation of the petition, it has entire control of the subject as a court of equity would have. Having all parties before it, it can and ought-to make such decree as law and equity require, and which will be binding upon all. It may therefore dismiss the petition of one who shows no right, and decree that the legacy charged shall be paid to another to whom it is adjudged to belong.

The main contention, however, has been upon the true construction of the will of Adam Shirey. It has been long and well settled, and indeed it is a principle so consonant to reason that’ the only wonder is that it should ever have been questioned, that all the surrounding circumstances of a testator — his family, the amount and character of his property — may and ought to be taken into consideration in giving a construction to the provisions of his will. Adam Shirey had been twice married. By his first wife he had two sons, and by his second one daughter. The second wife and all three children survived him. He had a farm in Antrim township, Franklin county — two houses, a shop and the lots upon which they were erected in the borough of Green-castle. By his- will he bequeathed to his wife the house and lot on which they lived, with the interest of $2000 to be paid to her annually during her widowhood, “the said dower to remain in the land, and the household furniture to remain as it now is as long as my wife remains my widow.” He then proceeds immediately as follows: “ I will and bequeath all the rest of my property, both real and personal, to my three children, except the house and lot in the possession of my beloved son Milton Shirey, which I give and bequeath to him before any divide of my property is made.” Although if this were the only residuary bequest in the will it would undoubtedly be sufficient to pass everything undisposed of, and so carry the principal of the legacy to the widow upon the termination of her interest, yet as there is a subsequent residuary bequest it is evident, construing the whole instrument together, that by all the rest of his property, real and personal, he meant his farm in Antrim, his remaining house and lot, and such personal property other than the household furniture specifically bequeathed as he should die possessed of. As to all this property he evidently contemplated an immediate division of it upon his death, for he provides that Milton shall have the house and lot in his possession before any divide” of his property is made. He evidently is not adverting to the reversionary interest in the legacy of $2000, the interest of which was to be paid to his wife as long as she remained his widow. It was not before his mind at that time. But when he does advert to that afterwards at the close of his will, he provides with greater fulness and particularity so as to include everything not before disposed of, “ And all the rest, residue and remainder of my goods, chattels, ready money, effects and other of my estate both real and personal, I give and bequeath the same to my son Milton Shirey.” The power given to Milton, who was the executor, to sell his shop and half lot of ground, together with the farm in Antrim, following immediately this residuary devise, shows that he did not consider these properties as included in it, for why should he be vested with power to sell what would thus have been given to him absolutely? They had previously been devised to his three children, and the power of sale was proper in order most conveniently to effectuate the devision which he contemplated among them. Thus there is no repugnancy in the will, but effect is given to every word, a result always to be aimed at in construction. We give no opinion upon the question whether the wife took an estate in fee or during widowhood in the house and lot devised to her. That question was not before the court below and is not before us. The only subject within the jurisdiction of the Orphans’ Court and brought up on this appeal is the legacy of $2000 charged on the land. Upon that subject we think that the learned court came to the right conclusion.

Decree affirmed, and appeal dismissed at the costs of the appellants.


author: by AetNBW, J.

text:
    Folmar s Appeal.
    1. The probate of a will is primS, facie sufficient evidence of due execution ; if there has been no contest for more than twenty-one years, a title being founded on it in the mean time, nothing less than clear and satisfactory evidence of a strong character will rebut the primS, facie effect of the probate.
    2. The 7th section of Act of 22d April 1856, making a probate conclusive as to real estate unless contested within five years, is retrospective. "
    3. The act makes no exception as to minors or femes covert, and the probate of a will is conclusive on all persons.
    4. Kenyon v. Stewarc, 8 Wright 180, Warfield v. Fox, 3 P. F. Smith 382, recognised.
    May 9th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Somerset county: Of May Term 1871, No. 105. In the distribution of the estate of Theobald Folmar, deceased.
    The decedent died shortly after the 9th of March 1847, having on that day made his will, by which he gave one-half of his estate, real and personal, to his wife Sarah, and the other half to his daughter Matilda, his real estate to be sold when his wife should direct, as specified in the will. He appointed Peter Levy executor, with power to sell and convey his real estate.
    The execution of the will was as follows:—
    “ In witness whereof, I, Theobald Folmar, the testator, have to this my last will and testament, set my hand and seal, this the ninth day of March, A. d. one thousand eight hundred and forty-seven. his
    Theobald x Folmar, [l. s.] mark.
    Signed, sealed, &c., published and declared by the testator, Theobald Folmar, as and for his last will and testament, in the presence of us, who at his request and in his presence have subscribed our names as witnesses thereunto.
    Mathias Anstadt, Stephen Yoder.”
    The probate was as follows:—
    “ Somerset County, ss.
    On the 16th day of March, A. d. 1847, personally appeared before me, Wm. H. Picking, Register, for the probate of wills and granting letters of administration, in and for the county of Somerset, Mathias Anstadt and Stephen Yoder, the subscribing witnesses to the within instrument of writing, who being qualified according to law, do depose and say that they were present and saw and heard the within-named testator, Theobald Folmar, sign, ■seal, publish, pronounce and declare this instrument of writing, as and for his last will and testament, and at the time of so doing he was of sound mind, memory and understanding, to the best of their knowledge, observation and belief.
    Affirmed, sworn and subscribed, ] same day before me. V Wm. H. Picking-, Register. J
    Stephen Yoder, Mathias Anstadt.”
    The same day letters testamentary were issued to Peter Levy.
    The testator left a widow, Sarah Folmar, and a daughter who afterwards married and died December 20th 1866, leaving a minor child Rebecca A. Griffith.
    The account of the executor showed a balance of $22.51 of personal estate. He sold the real estate in 1869, and filed his account August 4th 1869, showing a balance of $1990 in his hands.
    J. D. Kimmel, Esq., was appointed auditor to distribute the fund.
    The question raised before the auditor was whether the will was duly executed in accordance with the requirements of the 6th sect, of Act of April 8th 1833, Pamph. L. 249, Purd. 1016, pi. 6.
    Peter Levy, Esq., was examined before the auditor and testified : “ I wrote that will. I wrote the will at the request of Mr. Folmar, and at his dictation. I am satisfied in my mind that I wrote the will as he ordered me. I am satisfied in my mind that I made known to testator the contents of the will, because it is my rule to do so in all cases, to read and explain before signing. I cannot recollect any particular words that he said, but I am satisfied in my mind that I wrote his name to the will by his direction and request. I am satisfied in my mind that I would not have written his name to the will unless directed by him to do so. Testator was at the time sick in bed; appeared to be weak but of sound mind. Not certain if he was physically able to write his name or not. He died in a few days after the will was written. Mathias Anstadt and Stephen Yoder were called as witnesses. The signing of the will was done in the presence of the witnesses and acknowledged before them. Anstadt and Yoder the witnesses are both dead. I was present when the will was admitted to probate, Anstadt and Yoder were present as witnesses in the register’s office — think they were sworn as witnesses to the will. I saw Anstadt and Yoder, the witnesses, sign their names to the will. I * do not recollect any particular words, but I am satisfied that the testator directed me to write his name to the will, as I have always been very particular in executing wills. I do not recollect anything said by him particularly, but am satisfied that I would not have done so unless requested — it was not my custom to write a man’s name, unless specially requested. Anstadt died soon after Folmar. Yoder died ten or twelve years ago.”
    There was evidence that at the execution of the will the testator was very sick and from stiffness of his arm was unable to write; but there was no evidence that he requested any one to sign his name.
    May 18th 1871,
    The auditor reported: “ That the evidence of the execution of the will is entirely too vague and inexplicit, and wants the essential requisites necessary to constitute it a will, to wit: ‘ The express direction to another to sign his name to the will,’ as required by the statute of 1833, and the decisions thereon. lie therefore decides that the paper purporting to be the last will and testament of Theobald Eolmar, deceased, is not a will.
    “ The funds arising out of the personal estate are insufficient to pay the expenses of this audit; he therefore makes no distribution.’ ’
    The report, after exceptions, was confirmed by the Orphans’ Court. Sarah Eolmar, the widow, appealed to the Supreme Court and assigned the decree of confirmation for error.

      A. H. Qoffroth, for appellant.
    The parties are estopped from this inquiry at this late day: Act of 22d April 1856, § 7, Pamph. L. 533, Purdon 275, pl. 13; Kenyon v. Stewart, 8 Wright 189. The will is good under the Act of 1833. Both of the subscribing witnesses are dead: Greenough v. Greenough, 1 Jones 489; Hands v. James, 2 Comyn 531; Provis v. Reed, 5 Bingh. 435; Croft v. Pawlet, 2 Stra. 1109; Dayrell v. Glasscock, Skin. 413; Turnipseed v. Hawkins, 1 McCord 272; Brice v. Smith, Willes 1; Fetherly v. Waggoner, 11 Wend. 599 ; Fitzherbert v. Fitzherbert, 4 B. C. C. 231.

      W. H. Postlethwaite, for appellee,
    referred to the Act of 1833; Greenough v. Greenough, 1 Jones 489 ; Shinkle v. Crock, 5 Harris 162; Ruoff’s Appeal, 2 Casey 220; Blocher v. Hostetter, 2 Grant 289.
   The opinion of the court was delivered,

by AetNBW, J.

Theobald Eolmar made his will on the 9th of March 1847, and probate thereof was made before the register of wills of Somerset county on the 16th of March 1847, the subscribing witnesses (who are now both dead) testifying “ that they were present and saw and heard the within-named testator, Theobald Eolmar, sign, seal, publish, pronounce and declare this instrument of writing as and for his last will and testament.” This probate remained uncontested until the year 1869, the executor having in the mean time sold the real estate of the testator under a power contained in the will, settled an account and charged himself with the proceeds of sale. The distribution of the proceeds was referred to an auditor, and before this auditor the will was impugned as imperfectly executed, so held to be by him, and his report confirmed by the court. We think this was an error. After a probate of a will, which is primá facie sufficient evidence of the due execution of it even as to real estate, and no contest has taken place upon it for more than twenty-one years, and a title founded upon it in the mean time, nothing less than clear and satisfactory evidence of a strong character should be permitted to rebut the prima facie effect of the probate. Clearly there was nothing in the testimony of Peter Levy so clear and satisfactory as to rebut the strong presumption in favor of the will. But this question becomes of no importance under the provisions of the 7th section of the Act of 22d April 1856, declaring that the probate shall be conclusive as to real estate unless within five years from the date of such probate those interested to controvert it, shall, by caveat and action at law duly pursued, contest the validity of such will as to such realty. The proviso to this section gave to persons who would be sooner barred by the act, two years after its date to make the contest.

That this act is retrospective is decided in Kenyon v. Stewart, 8 Wright 180. See also Maul v. Rider, 1 P. F. Smith 384-5. It is true that Woodward, J., remarks in the opinion that if the party to be affected be not of full age an embarrassing question might arise, such as was discussed in Miller v. Franciscus, 4 Wright 339, alluding to the application of the exceptions contained in the General Limitation Act of 1785, § 3, to the Act of 1856, But in the later case of Warfield v. Fox, 3 P. F. Smith 382, where the question directly arose, it was held that the Act of 1856 makes no exception in favor of minors and femes covert, and that the exceptions in the Act of 1785 could not be applied. “ We hold, therefore (said Strong, J.), that the probate by the register of the proper county of any will devising real estate is conclusive upon all persons, whether infants, femes covert, non compotes mentis or not, unless within five years from the date of such probate the validity of the will shall be contested in the manner pointed out by the 7th section of the Act of 1856.”

The decree of the court below is therefore reversed, and the record is order to be remitted, with an order to proceed to make distribution of the fund in question to the persons entitled to the same under the will of Theobald Folmar, deceased, the costs of the proceedings and of this appeal to be paid out of the estate.


author: by. Agnew, J.

text:
    Miller versus Miller.
    I 1. The rule as to duress per minas has now a broader application than formerly.
    2. Where one has the property of another in his power, so that he can exert his control over it to the prejudice of the other, a threat to use this control may enable the other to avoid an obligation obtained without consideration by means of the threats.
    3. Mere threats of injury to property, without power over it to enable the party to execute the threats, are not duress per minas.

    4. The constraint which takes away free agency, and destroys the power of withholding assent to a contract, must be one which is imminent and without immediate means of prevention, and such as would operate on a person of a reasonable firmness of purpose.
    5. A threat to withhold payment "of a debt, or to refuse performance of contract, or to do an injury which may be at once redressed by legal process, is not duress per minas.

    6. There is not a duress per minas in equity which does not exist at law.
    7. A chancellor will refuse specific execution of a contract for a reason less than would constitute duress per minas, or will set aside a bargain for extortion or undue influence on a weak mind or under circumstances of a confidential relation, but will not set aside an agreement for duress per minas when the law would not.
    8. The facts in this case did not constitute duress per minas.

    May 9th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJV
    Error to the Court of Common Pleas of Franklin county: No. 66, to May Term 1861.
    The action in this case was by Nancy A. Miller-against David Miller, commenced February 5th 1868, on a note of which the following is a copy:—
    $1200 on or before the first day of April, one thousand eight 'hundred and forty-eight, we or either of us promise to pay- Nancy Miller, or order, the sum of twelve hundred dollars with interest from this date without defalcation for value received, given under our hands and seals this first day of April, one thousand eight hundred and forty-seven.
    David Miller, [l. s.] Daniel Miller, [l. s.]
    Oh this note were the following endorsements:—
    “ This note settled in full.
    Attest :-Wm. Adams.” Nancy A. Miller.”
    There were afterwards endorsed different payments of interest which were in full to April 1st 1854.
    Also:—

      “April 1st 1862, Give five hundred dollars interest on the within note for my home here, and the balance settled of the interest.”
    “ April 1st 1862, Rec’d two hundred dollars of the principal on the within note.”
    “ April 1st 1864, Settled the interest on the within note up to this date.”
    “ April 1st 1864, Settled one hundred and eighty dollars of the principal on the within note.”
    The plaintiff alleged that the endorsement of the settlement was not binding, having been obtained by coercion, &c.
    The cause tried October 20th 1870, before Rowe, J.
    The plaintiff read the note in evidence and all the endorsements but “ This note settled in full,” and rested.
    The defendant called William Adams, who testified that he wrote the endorsement of settlement, and the plaintiff signed it in his presence. Defendant then read the endorsement, and rested.
    The plaintiff testified that her father, who died about 1835, left two farms, one of which the defendant, who was her brother, agreed to buy from the heirs at $30 per acre, which was afterwards reduced to $25 per acre, in consideration of his giving to the plaintiff and another sister named Catharine, a home for life, and to get their money at 5 per cent. The note in suit was for her share of the farm bought by the defendant. The agreement for the reduction of the price of the land was in writing, and contained nothing as to providing the sisters a home. The evidence in relation to that was objected to by the defendant, as varying a writing by parol. It was admitted, and a bill of exceptions sealed.
    Plaintiff testified that she did housework, &c., for the defendant.
    She further said : “ After the giving of the note, for about fourteen years we settled, and he paid us the interest, part in money and part in notes. Then he became dissatisfied — thought the interest high, and said it was a sin to take interest. He said we ought do drop some of the interest if only six cents. He continually wanted us to drop interest until 1862; he got me to drop $500 and my sister the same. As soon as that was done, he said it was not enough. I said it was enough, that I thought we had done very well. We commenced to differ. He said he thought the fourteen years ought to be opened, and $75 per year to be deducted for board and lodging, for living there. We said we would do it. As soon as we agreed to this, he said it was not enough, that we ought to pay $100 per year. He got us pushed up to that. Then he said that was not enough. He wanted $700 more. We did not want to do these things. He threatened me that I ought to be kicked out of the house, at one time drew a chair over me. He said we would defraud his children — all that kind of talk, over and over again, in different years from before 1862, up. He was always at us more before communion time than any other. At chance times, he would commence this talk at the table. He rendered the home disagreeable to me, very much so. In 1865, sister got lame from a fall on the ice. When we were differing, he said I had better not say too much, that the carpenter had left a hole, pointing to the door. I could not live there in any kind of peace, unless I had given up. We had no rest, no peace, without doing these things. Sometimes he was at it every day and every day, sometimes he would desist — and then begin again afresh. 1st April 1862, I only got $100 of the $200 receipted for. The way that happened, it was principal, and he gave me a note for it, and the receipt was entered for the $200. He only paid $100 on the note. He grumbled, and I took $100, the other $100 to be paid again. He never paid it. 1862 April 1st, $500, this was surrendered in consequence of his importunity and the influences narrated. 1st April 1864, the entries then made on the note were made without any money being received, in consequence of his claim for more from us for boarding and living, as narrated. April 1854,1 only got $100 of the principal of the note and no interest. The rest is all gone. On 1st April 1864, I did not get any money. He induced me to throw off some more money, because we lived in the house. He demanded it. The reduction made 1st April 1864, left only $500 due on the note. I did these things because he demanded it. I did not want to do it. From 1st April 1864 to March 10th 1866, the date of settlement of note, he paid me no money. He paid me no money on that day, the day the note is marked, ‘ settled in full.’ He gave no v-alue at all. From April 1864 to March 1866, his treatment became worse. Defendant said we ought to do something — see where we would put our money, we were getting old. He asked whether we were not going to send for Adams. Sister at last said he might come, and he came and wrote the wills, and the note was marked settled. April 1864, he wanted a lien on •the land in Maryland for $2000, not to be payable until our death, but interest to run from date. We were willing to will him $2000. He said if we could get any person to say it was not right he did not want the $2000. When Adams came, we consulted him a little. He said: ‘ Girls, indeed I would not do it.’ This March 12th 1870. He said he wouldn’t have the farm encumbered. Then we got the wills wrote. Adams and he went out and had a conversation, and came in and demanded the $1000 we two held against him on the notes, $500 each. He was all winter demanding the $500 he owed me on the note, and the $1000 which he wanted a judgment for on the farm, demanding like sum from sister. Then when Adams was there, we marked the notes settled. He always said, pay your debts, and said I was insolvent. I thought I did not owe him.”
    On cross-examination she said: * * * “ I can’t remember whether the threat to kick me out of the house, was before or after March 12th 1866. He did not say he would kick us out if we would not give up the $500 and other sums. That was the object. I don’t recollect that he used that language. He did not mention the money when he drew the chair — that was during the last year. I signed the words ‘ Settled in full,’ because he had been at us all winter and abused us dreadfully and pushed us up to that point. I talked against it all winter. I called him a skinner and stripper. I don’t know that I suggested the giving up of the $1000 when Adams was there. The abuse was, he said a great deal. He said if we would give it up, we could live and let live, and such talk. His abuse was all talk. I could have gone away from the house. I stayed because I thought I had a right. He never said: ‘ Unless you put a receipt in the note, I will use violence.’ He was saying all the time, you ought, you ought, you ought. In 1864, he said you must give up the $1000 or leave the house.
    For defendant William Adams said: “ On the 12th of March 1866, I went to defendant’s house. I went there to write wills for .Nancy and Catharine. She told me they had a settlement to make with David before they would write their will. David was present, and presented a bill of $2000, which he claimed for buying a farm and superintending it for eighteen years. The girls resisted his claim or the manner he wished to receive it. He wanted a mortgage on the Maryland farm payable at their death and that of the survivor. They proposed to secure to him $2000 by will, but refused the mortgage. He was not satisfied. There was then much talk. Nancy contended that the services were not worth $2000. Nancy claimed to offset David’s services in the farm with keeping his books. They talked from 8 o’clock to noon. After dinner, Nancy proposed that they would give to David $1000, which he at first refused to accept. He and I went out of the house and over the farm, and after my talking to him, when we came back, he agreed to accept it. After he agreed to accept it, five notes were presented, two to Catharine and three to Nancy. When I came across the note now in suit, Nancy said there was nothing due on that note, as it had been settled in 1864, and a note taken for $500 — (one of the notes just produced). Í then made the endorsement across its face ‘ settled in full.’ She also said there was nothing due on the $168.64 note, and I wrote the endorsement on it also. She signed both settlements. On the $500 note I put the endorsement found on it — ‘ March 12th 1866. This note satisfied by settlement in full of all accounts to date, and for boarding, &c., to April 1st 1866.
    (Signed) ■ Nano? A. Miller.
    Attest: — Wm. Adams.’

      “ Nancy produced the five notes, I think, that is my impression. Nancy and defendant each presented their claims, and each seemed to be getting the best side of the bargain. I heard no threats. I saw no undue influence used. I discovered no fear in Nancy of her brother. She seemed to act freely, and was capable of managing her affairs. David claimed $94 afterwards, but she and I insisted the settlement was in full, and he acquiesced. They then made an agreement about boarding for the future, which both parties signed.”
    There was other evidence on both sides, but none of importance bearing on the question of threats.
    The plaintiff’s 7th point was: “The acceptance by the plaintiff of the $500 note on the 1st of April 1864, was not an ex-tinguishment of the note in suit, but at most only collateral to it, the original note still being retained by the plaintiff and not being cancelled at that time.”
    The court answered: “ We cannot instruct you as requested in this point. We cannot say as matter of law, that the acceptance of the $500 note was not an extinguishment of the $1200 note in suit. If you believe that the parties intended the giving of the $500 note to be an extinguishment of the other, and not merely collateral to the other promise, though the plaintiff was permitted to keep the note in suit, it was extinguished, if the plaintiff acted freely and not under the compulsion of threats to turn her out of the house, where, you find, she had a legal right to be under the defendant’s engagement.”
    The defendant’s 8th point was : “ If the jury believe that there was a settlement between the plaintiff and defendant on the 1st April 1864, in which the note in suit was surrendered and a new note given for the balance due thereon, as testified to by Wm. Adams, Esq., and Catharine Miller, plaintiff cannot recover on the surrendered note.”
    The 9th. “ The verdict should be for the defendant.”
    Both were negatived.
    The court further charged: * * *
    [“ On the whole we instruct you that the plaintiff is- only entitled to recover, if you should be of opinion, that under a contract with her brother, based upon a valuable consideration, and fulfilled on her part, she was entitled to live in his house, the home of her ancestors, as long as she chose; and that under threats to drive her out and other ill-usage, the defendant extorted and forced the receipts and settlements from the, without a full valuable consideration for them. Such receipts and settlements as he extorted from her in this wrongful way, she may avoid, and only such. And you must find that such threats were the operative reason and cause of her action, and that without them, she would not have signed them. Her freedom in this regard must have been destroyed by the oppression of the defendant exercised upon her by means of these threats.
    “ All his importunity, however urgent, or any religious scruples attempted to be excited about taking interest — the plaintiff not being shown to be of weak mind — nor alleging that the defendant succeeded in arousing her religious scruples — will not avoid the receipts. Only the threats to turn the plaintiff out of the home to which she was entitled, where she had lived for many years, and where her sister was, compelling an unwilling and forced action on her part, will have that effect.”] * * *
    [“ If you find that what the plaintiff did before 1864, was done only in consequence of the defendant’s promptings and importunity, and not upon a well-founded fear of being turned out of plaintiff’s house, she cannot be relieved as to those things.] Before that she only speaks of his pointing to the door, saying the carpenter had left a hole, and that she ought to be kicked out, and seems to have been said in reference to her recriminations upon him. But she says that in 1864, he said: ‘ You (her sister and herself) must give up the $1000 or leave the house.’ If you believe the plaintiff it would seem that the last $500, at least, was surrendered in fear of being turned out. It is for you to sa,y, but the impression left upon us by the plaintiff herself was that the threats made before 1866, were not sufficient to excite a well-founded fear of being turned out of home and house, and that she did what she did for the sake of peace.” * * *

    [“ She can recover only on the ground that the unjustifiable oppression of her brother, in threatening to turn her out of the house, where he had solemnly engaged she should remain as long as she lived, destroyed her freedom, and that she was virtually not assenting to the receipts and settlements. The plaintiff must have had a right to remain in the house under the agreement alleged. The threats of the defendant to turn her out, and his other conduct (but without the threats to turn her out the other conduct would not be sufficient), must have so operated on the mind of the plaintiff as to destroy her freedom in the signing of the receipts and making of the settlements. That is, she must have been so constrained by the threats and other conduct that no matter how much she desired to avoid signing the receipts and settlements, and how she strove against it with herself, she was unable to resist the influence of the constraint, and was forced to yield to it. Where one is in prison, or labors under threats of great bodily harm, there is still and always is a possibility of resisting and of suffering the imprisonment or great harm, rather than yield. But the mind may not be able to resist the desire of freedom, or to escape injury, and to be forced to submit. That is duress. So in this case. It was of course possible that the plaintiff might have resisted the threats and left the house. That would depend upon her firmness of mind and attachment to her home. But if her firmness of purpose and attachments were not in your opinion of sufficient strength to resist the infiuences of the threats, and they overcame her, strive against them as she would, then they destroyed her freedom, and the receipts ate not truly her receipts.]. The threats must have been to exclude her from the house unless she yielded her money. If they were, unless she ceased her charges and recriminations, they amount to nothing. She was only entitled to remain in the house on condition of quiet and civil behavior.”
    October 9th 1871,
    The verdict was for the plaintiff for $Í666.
    The defendant took a writ of error. He assigned for error the admission of the evidence objected to, the answers to points given above and the portions of the charge in brackets.

      Kennedy Stewart, W. S. Stenger and W. Adams, for plaintiff in error,
    cited as to duress per minas, 1 Blackstone’s Com. 130; 2 Inst. 483; Co. Litt. 253; 1 Broom’s Maxims 162; Stouffer v. Latshaw, 2 Watts 166; Roy v. The Duke of Beaufort, 2 Atk. 193; Harris v. Tyson, 12 Harris 361; Powell v. Hoyland, 6 Exch. R. 67; 2 Greelf. Ev., §§ 301, 302.

      J. MeD. Sharpe, F. Kimmel and W. McLellan, for defendant in error,
    cited as to duress, 1 Pars, on Cont. 392; 1 Story on Contr. 480; 1 Story’s Eq. J., § 239; Foshay v. Ferguson, 5 Hill 158; Collins v. Westbury, 2 Bay R. 211; Sasportas v. Jennings, 1 Id. 470; Nelson v. Suddarth, 1 Hen. & Munf. 350; Chase v. Devinal, 7 Greenlf. 134; Harmony v. Bingham, 1 Duer 209; s. c., 2 Kernan 99 ; Stouffer v. Latshaw, 2 Watts 165; Harris v. Tyson, 12 Harris 347; White v. Heylman, 10 Casey 142; Ashmole v. Wainwright, 2 Q. B. 837; Wakefield v. Newbon, 6 Id. 276 ; Parker v. Great West. Railroad, 7 M. & G. 253; Chase v. Devinal, 7 Greenlf. R. 134; Elliott v. Swartwout, 10 Pet. 137; 2 Greenlf. on Ev., § 121; Work’s Appeal, 9 P. F. Smith 444; 1 Story’s Eq. J., § 309.
   The opinion of the court was delivered,

by. Agnew, J.

The plaintiff sued on a single bill for $1200, on which were endorsed sundry credits which were read, and she rested. The defendant then proved and read an entry on the face of the bill signed by the plaintiff, viz.: “ This note settled in full,” and rested. For the purpose of showing that this entry was made without consideration, and under duress, the plaintiff replied by giving evidence of a parol contract by the defendant to give her a home in his house, and to board her, and to pay her interest at 5 per cent, on his debt to her; and also evidence of threats to turn her out of his house, and to compel her to pay for her hoarding. So far as the bills of exceptions question the admissibility of the evidence, on the ground, that it tended to affect the written contract between the plaintiff and the other heirs of her father and the defendant, to reduce the price of the land he had bought of them, we think they cannot be sustained. The contract for the boarding and lodging preceded, and was no part of the written agreement. Entering into the written contract and getting the other heirs to do so, were the inducements, and were a condition precedent to give effect to the contract for boarding and interest, but the writing was not the evidence of it. That was evidence only of the contract to reduce the price of the land, which was a complete and independent agreement in itself, to which others were also parties. No question therefore can arise as to the admissibility of the evidence on the ground of a conflict with the written agreement. Nor is there any doubt that it was competent for the purposes for which it was offered; but its insufficiency to show such duress as would relieve the plaintiff from the entry of settlement is the true matter before us. Under the charge of the court, as the case went to the jury, no question of fraud, imposition or undue influence is before us, but that of duress only.

We concur with the counsel of the defendant in error that in civil cases the rule as to duress per minas has a broader application at the present day, than it formerly had. Where a party has the goods or property of another in his power, so as to enable him to exert his control over it to the prejudice of the other, a threat to use this control may be in the nature of the common law duress per minas, and enable the person threatened with this pernicious control to avoid a bond or note obtained without consideration, by means of such threats. See White v. Heylman, 10 Casey 142, where the authorities are collected. But mere threats of injury, in regard to property, without a power over it also, to enable the party to execute his threats, are not in themselves duress per minas, however otherwise they may enter into questions of fraud or extortion: 2 Greenleaf Ev. § 301; Fulton v. Hood, 10 Casey 372; 2 Inst. 483; 1 Black. Com. 130. The constraint which takes away free agency and destroys the power of withholding assent to a contract, must be one which is imminent, and without immediate means of prevention ; and be such as would operate on the mind of a person of a reasonable firmness of purpose. A threat to withhold payment of a debt, or to refuse performance of a contract, or to do an injury which may at once be redressed by legal proceeding, will not amount to duress per minas. Nor is there a duress per minas in equity, which does not exist at law: Stouffer v. Latshaw, 2 Watts 168. The power of mind necessary to give assent to a contract is the same in law and equity. A chancellor, it is true, will refuse his aid to enforce specific performance of a contract, for a reason less than that constituting duress per minas, or will set aside a bargain for extortion or undue influence operating upon a weak mind, or under circumstances of a confidential relation ; but equity will not set aside an agreement on the ground of duress per minas alone where the law will refuse to do so. In view of these- principles there was nothing in the evidence in this case to submit to a jury. The plaintiff herself was the only witness to prove threats — the transaction took place in the presence of a third person called by her to attend to her own business — no conduct of the defendant amounting to duress is alleged to have taken place at the time of the settlement. The threat to kick her out, in one part of her examination, was stated to have been made in 1864, two years before the settlement, in another part not remembered as to time, and is not alleged to be expressly on the condition, if she would not give up the bill or note. She says she signed the settlement because he had been at her all winter, and abused her dreadfully and pushed her up to that point; but she adds that she talked against it all winter — called him a skinner and stripper — that the abuse was that he said a great deal — that if we would give it up, we would live and let live. His abuse, she says, was all talk — was saying all the time, you ought, you ought, you ought. She admits that he managed her Maryland property for years, made it yield largely, and claimed a large sum for his services, which she had been willing to secure to him by her will. Her whole testimony shows that there had been a running controversy between them for years about boarding, work, and his services, and that he was constantly importuning her. On part of the defence the testimony of the person called in by her shows that the subject of the settlement was discussed between them for half a day, that the defendant claimed $2000 for his services, and finally by persuasion of the witness he came down to $1000, and the settlement was closed in his presence, the papers produced by her, the entries made by the witness, and signed by her. The parties are brother and sister, and had lived together more than twenty years. She states no threats as the immediate cause of her act; and added to this the only threat she speaks of, was merely such as would amount to a refusal on his part to comply with his own contract to furnish her a home. We can discover nothing in her testimony which is such a duress per minas as would avoid the settlement, and the court ought not to have left it to the jury to be found by them on the evidence.

Judgment reversed, and a venire facias de novo awarded.


author: by Agnew, J.

text:
    Bouslough versus Bouslough.
    1. Bouslough in his own right and as executor, and Fleck were summoned as garnishees; both pleaded nulla bona; the jury were sworn as to Bouslough as executor only; judgment was entered on the verdict against him as executor. The error was formal, and the record treated as amended.
    2. Under the Act of April 10th 1849 (Attachment), a jury may not be required to find what goods, &c., were in hands of garnishee.
    3. The 58th section of the Act of June 13th 1836 is inapplicable to attachments upon interests in unsettled estates of decedents.
    4. As a general proposition a wife, who does not stand in the relation of a creditor to her husband, cannot set aside his voluntary alienation of his personal estate.
    5. He cannot avoid his own conveyance even though fraudulent as to creditors.
    6. An executor may set up fraud and avoid the act of the decedent for benefit of creditors where estate is insolvent.
    7. Arrears of alimony cannot be collected by the administrator of the wife; altter if the husband has evaded the payment, and compelled the wife to contract debts; the administrator may recover for benefit of creditors.
    8. A wife, who has commenced proceedings for maintenance, may be viewed as a quasi creditor as to alimony.
    9. Her relation is adverse, that of a creditor in fact, and she is not to be balked of her dues by the fraud of the husband.
    10. A voluntary conveyance in contemplation of future debts, is within the spirit of the statute 13 Elizabeth.
    11. An assignment with intent to defeat a wife of her claim for alimony is avoided by that statute.
    12. The Act of April 15th 1845 (Divorce) gave a decree the force and effect of a judgment, and provided a remedy for its collection.
    13. The term “ execution ” in that act is not to be confined to a fieri facias.
    May 10th 1871. Before Thompson, C. J., Ag-new, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Blair county: No. 71, to May Term 1868.
    The proceedings in the court below were under an attachment execution issued at the suit of Ellen Bouslough against Jacob H. Bouslough, in which William Bouslough, in his own right, and as. executor of Jacob Bouslough, deceased, and Henry Fleck, were summoned as garnishees.
    In October 1860 Ellen Bouslough, the wife of Jacob H. Bouslough, filed a libel for divorce and alimony, and on the 1st February 1865 obtained a decree of divorce a mensd et ihoro with $800 alimony to the date of the decree and further alimony of $15 per month thereafter: on the same day the attachment execution above-mentioned was issued to enforce the decree.
    The writ was served only on the garnishees, who pleaded nulla bona.

    Jacob Bouslough, the father of Jacob II. Bouslough, died in 1857, leaving a will by which he directed his whole estate to be equally divided among his children, appointing his sons, William and Jacob H., his executors.
    William Bouslough, in his answers to interrogatories filed, denied that he had in his hands any money or effects of Jacob -H. Bouslough, and averred that Jacob had sold all his interest in his father’s estate prior to February 1st 1865 to his brother Philip, of which William, as executor, had received notice; and that the estate had not been settled.
    To prove this transfer the garnishee offered in evidence an article of agreement between Jacob and Philip, dated March 20th 1861, by which Jacob agreed to sell to Philip all his interest in his father’s estate for $1500, payable in five years, for which sum Philip was to give his note; he also offered evidence to show that the assignment and note were found among the papers of Philip after his death in 1866.
    The administrator of Philip appeared by counsel, and contested the right of the plaintiff.
    The defendants’ positions were:—
    1. That, as the whole interest of Jacob H. Bouslough in his father’s estate was personalty, it was in his power to dispose of it absolutely, as he saw proper, and any disposition he saw proper to make of it could not be contested by his wife.
    2. That an attachment execution could not lawfully issue to enforce a decree in divorce for alimony, and especially this attachment could not be sustained to attach money in the hands or to come into the hands of one executor, which upon distribution, would be due to the other executor, before all the money had been received by either, and before any administration or distribution account had been settled.
    The court (Taylor, P. J.) disaffirmed the positions of the defendant, charging:—
    [“ It is contended further for the defendant in this issue, and we are asked by his counsel to instruct you in his behalf, that whether the sale to Philip was boná fide, as he alleges, or was colorable only, and made by Jacob II. Bouslough to cover up his property and put it, in view of the difficulties existing between him and Ellen Bouslough his wife, beyond her reach, so as to deprive her of her marital rights, and to hinder, delay, defeat and defraud her in obtaining the fruit of any apprehended judgment or decree that she might obtain against him; as the plaintiff alleges, the verdict must still.be for the defendant, for the twofold reasons: First, that she did not at the time sustain such a relation to Jacob H. Bouslough or his estate, as entitles her to question or contest here the honesty or validity of the transaction in question, or avail herself, as might a creditor, of any fraud in it, if fraud existed or be shown; and secondly, that an attachment-execution did not lie and could not legally iss.ue upon the decree in her favor. The instruction thus asked we refuse to give you ; hut on the contrary rule both of these questions against the defendant and in favor of the plaintiff.].
    October 9th 1871,
    “ The cause, therefore, goes to you, gentlemen, and it is to be decided by you upon the question: Was the alleged sale to- Philip Bouslough a boná fide transaction, as the defendant alleges, or was it, as the plaintiff alleges, colorable and fraudulent, and done by Jacob II. Bouslough with the view and purpose, known to Philip, of defrauding her.”
    The jury having been sworn only as to William Bouslough, executor, in May 1867, returned a verdict “for the plaintiff,” upon which the court, on the 14th March 1868, entered judgment for $850 with interest from the date of the decree in divorce.
    William Bouslough, as executor, removed the case to the Supreme Court, and assigned for error the part of the charge in brackets and the entering of the judgment.

      John Scott and Samuel Galvin, for plaintiff in error,
    cited 58th section Act of June 13th 1836, Purd. 494, pl. 19; Crawford v. Barry, 1 Binn. 481; Hampton v. Matthews, 2 Harris 106; Poor v. Colburn, 7 P. F. Smith 417; Act of February 26th 1817, Purd. 349; Act of April 15th 1845, Purd. 350; 4 Penna. L. J. 381; Turnpike Co. v. Peddle, 4 Barr. 490; Act of March 29th 1832, Purd. 766; Act of April 21st 1846, Purd. 767; Acts of 1843 and 1849, Purd. 435, 436.
    The Act of March 29th 1859, Purd. 405, was considered necessary to make a decree of a court of equity a lien.
    Creditors only could contest the transfer: Buehler v. Gloninger, 2 Watts 226; Clark v. Clark, 6 W. & S. 85; Pringle v. Pringle, 9 P. F. Smith 285.

      S. S. Blair, for defendant in error,
    cited Acts of 13th June 1836, 13th April 1843, 10th April 1849, supra; Act of 27th July 1842, Purd. 492; Flanagin v. Wetherill, 5 Whart. 280; Poor v. Colburn, supra; Gochenaur v. Hostetter, 6 Harris 416; Straley’s Appeal, 7 Wright 92; Twyne’s Case, 3 Rep. 80; Boils v. Boils, 1 Cold. (Tenn.) 284; Sinnickson v. Painter, 8 Casey 384; Baker v. King, 2 Grant 256; Franklin v. Rush, 1 Phila. 571; Wray v. Tammany, 1 Harris 395; Kase v. Kase, 10 Casey 128.
   The opinion of the court was delivered,

by Agnew, J.

The record shows that William Bouslough was served as garnishee in his own right, and as executor of Jacob Bouslough, and that Henry Fleck was also a garnishee. The plea of nulla bona was entered generally for both the garnishees, and the trial had apparently on this issue. There is seeming error therefore in entering a special judgment against William Bouslough as executor, on what appears to be a general verdict against both the garnishees. But in point of-fact the jury was sworn as to William Bouslough as executor only, the judgment was so entered, and he as executor only has taken this writ of error. Under these circumstances the error is only formal, and we must treat the record as amended, as was done in Flanagin v. Wetherill, 5 Whart. 280, rather than reverse the judgment contrary to the merits of the case.

The jury did not find what goods or effects were in the hands of William Bouslough, executor, according to the 58th section of the Act of 13th June 1836. This raises a more serious question. The omission would be an error in ordinary cases of' foreign attachment under the Act of 13th June 1836, and of attachment execution under the Act of 16th June 1836 : Hampton v. Matthews, 2 Harris 105; Poor v. Colburn, 7 P. F. Smith 415. It would be an error even under the Acts of 27th July 1842 and 13th April 1843, subjecting legacies, distributive shares, &e., to attachment, as these acts were construed in Bank of Chester v. Ralston, 7 Barr 482, and McCreary v. Topper, 10 Id. 419, holding that the attachment would not lié until the distributive share or other interest had been ascertained by an account settled. But a new aspect was given to the subject when the Act of 10th April 1849 was passed subjecting the interest which any person has in the real or personal estate of any decedent to attachment as soon as the same shall have accrued by the death of the decedent; and when also the decisions were made in Chambers v. Baugh, 2 Casey 105, Sinnickson v. Painter, 8 Id. 384, and Lorenz’s Adm’r. v. King, 2 Wright 93, that the attachment is not premature though served before the final settlement of an account, or a decree of distribution. The legacy share or interest in the estate being now subject to attachment as soon as it accrues, and before it has been ascertained by any decree in the Orphans’ Court, it is impossible for the jury to comply with the provision in the 58th section of the Act of 13th June 1836, by finding what goods or effects were in the hands of the garnishees at the time of the execution of the attachment and the value thereof. There are the demands of the creditors of the decedent himself, which must be ascertained and be satisfied before anything can remain for the legatees or next of kin. Then there are the questions of debt and advancement between the estate and the distributee or legatee, which must be settled before the share or legacy can be ascertained. The attachment transfers to the attaching creditor only the right of the debtor in the estate, subject to all claims of the garnishee as the representative of the estate in his hands: Sect. 2d, Act. 27th July 1842, sect. 10th, Act 13th April 1843; and see Strong’s Ex’rs. v. Bass, 11 Casey 333; Lorenz’s Adm’r. v. King, 2 Wright 97. Thus it is evident that a jury in order to find the sum due or coming to the debtor from the garnishee as executor or administrator, would be compelled to settle the administration account itself, a thing improper, inconvenient and belonging to the Orphans’ Court alone. The requisition of the 58th section of the Act of 13th June 1836 is therefore inapplicable to attachments under the Acts of 1842 ,, and 1843 upon legacies, distributive shares and other interests in the unsettled estates of decedents.

It is true as a general proposition that a wife who does not stand in the relation of a creditor to her husband, cannot set aside his voluntary alienation of his personal estate made in his lifetime: Pringle v. Pringle, 9 P. F. Smith 281; Clark v. Clark, 6 W. & S. 85. Indeed, he cannot avoid his own conveyance or gift even though fraudulent as to creditors. The same rule follows the estate into the hands of his executor or administrator, who cannot set aside the fraudulent act for the benefit of his heirs or next of kin. But when the interest in the subject changes, a different rule prevails. Therefore the executor or administrator may set up the fraud, and avoid the act of the decedent for the benefit of creditors where the estate is insolvent: Buehler v. Gloninger, 2 Watts 226; Stewart v. Kearney, 6 Watts 453. So also arrears of alimony unpaid at the death of the wife, cannot be collected by her adminisitrators. Yet the rule changes if the husband has evaded payment and thereby compelled the wife to contract debts, and there the administrator may recover the arrears for the benefit of the creditors. So the rule that forbids the wife to avoid the voluntary assignment or gift of her husband, must change when her relation to him changes. There is no reason why a wife whose husband has deserted her, and refused to perform the duty of maintenance, or who by cruel treatment has compelled her to leave his house, and commence proceedings for divorce and maintenance, should not be viewed as a quasi creditor in relation to the alimony which the law awards to her. So long as she is receiving maintenance, and is under his wing as it were, she is bound by his acts as to his personal estate; but when she is compelled to become a suitor for her rights, her relation becomes adverse, and that of a creditor in fact, and she is not to be balked of her dues by his fraud. But it is argued that this cannot exist until a decree be made for the alimony. But why is her case before the decree not as much within the spirit and intent of the statute of the 13th Elizabeth, as that of a subsequent creditor who was intended to be affected by a deed made before his debt was contracted, but in view of it. It is not doubted that a voluntary conveyance made in contemplation of future debts to be contracted, and with a view to defeat them, are within the spirit of that statute though not within its letter: Thompson v. Dougherty, 12 S. & R. 448; Snyder v. Christ, 8 Wright 506; Ammon’s Appeal, 13 P. F. Smith 284. Indeed, her right stands on higher ground: for the duty of maintenance existed before he made his assignment. The latter was made in 1861, while the proceeding for the divorce was commenced in 1860.

We are of opinion therefore that the assignment by Jacob H. Bouslough to Philip Bouslough, of all his interest in his father’s estate, made, as the jury have found, with intent to defeat the plaintiff of her claim for alimony, falls within the spirit and intent of the statute of 13th Elizabeth, and is avoided by it. That alimony in its nature falls clearly within the class of subjects provided for in the statute, may be seen by a reference to Heath v. Paige, 13 P. F. Smith 108.

The last objection to be noticed is that an attachment execution will not lie upon a decree for alimony. However difficult it might have been to support the attachment before the passage of the Act of 15th April 1845, Brightly 350, pl. 25, the difficulty does not now exist. That act gave the decree the force and effect of a judgment as a lien upon the real estate of the husband, and provided a remedy for its collection by execution; and also gave authority to the court to exact security from the husband for its payment, if the husband be possessed of sufficient estate for its payment; and the lien of the decree be inadequate as a security. Sufficient estate here means personal as well as real. If, therefore, he be the owner of bonds, mortgages, stocks, and other choses in action, he can be compelled to give security. But if he have alienated them with intent to defraud the plaintiff, why shall she not have the proper process to reach and secure them ? The attachment execution is an execution, and has been always so' classed since the Act of 1836, relating to executions; which gave it as a remedy to reach those rights of property which could not be reached by a fi. fa. There is no reason, therefore, that the term execution as used in the Act of 1845 should be confined to a fi. fa. On the contrary the Act being remedial and intended to secure to the wife the collection of her alimony, and the attachment execution being most appropriate to this end, on every proper rule of interpretation we must hold that the general term “ execution ” in the Act includes an attachment execution. Upon the whole, finding no error in the record,

The judgment is affirmed.