text:
    Greenwood's Appeal.
    1. A trustee, ex maleficio, when he has acted in good faith, is not liable to account for what he might have received on the sale of oil, but for what he actually received.

      2. In the absence of fraud or had faith in the sales, the true measure of damages is the actual sales.
    November 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunicey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1878, No. 54. In Equity.
    Bill in equity filed by G. G. B. Greenwood, assignee of John T. Perdue, against George S. Long and Mary Ann Long, his wife, by amendment, Mrs. Milinda H. Pennock and Horace A. Pennock, her husband.
    The account to be taken and stated in this case was of the production of two oil-wells, being No. 1 and No. 2, on a lease taken in the name of John T. Perdue, consisting of eight and one-fourth acres on the Widow Smith farm in Fairview township, Butler county, of the one-half interest in which he was held to be a trustee for Mrs. Mary Ann Long, for her assigns, by a decree of the Supreme Court of this state, made on the 8th of January 1877 (see Long v. Perdue, 2 Norris 214), as well as of the cost and necessary and proper expenses of putting down and operating said wells. After said decree an arrangement was made between the parties by which the plaintiffs have been receiving their proportion of the proceeds of said leasehold, so that the account to be taken by the master ended at the date of January 8th 1877, as to the production.
    The case was referred to a master who took testimony, and after argument made a report, wherein he, inter alia, said:
    “ The learned counsel who argued the cause on part of plaintiffs before the master, contended that the defendant, having been found and declared a trustee ex maleficio for plaintiffs, should be charged with the highest price per barrel for the oil that oil reached at any time between the time of its production and the accounting for it; and cited in support of his argument Bank of Montgomery v. Freese, 2 Casey 147 ; Backenstoss v. Stoller’s Admrs. 9 Id. 251; Robinet’s Appeal, Donnelly’s Estate, 12 Id. 189; Hill v. Canfield, 6 P. F. Smith 459 ; Persh v. Quiggle, 7 Id. 255 ; Neiler v. Kelly, 19 Id. 408; Annual United States Digest 1850, 417, sect. 38, and case of Sly v. Lyon, C. Ga. 530, there cited; also, Freeman v. Cook, 6 Ired. 173; Jenkins v. Cornier, 26 Ala. 212; Caison v. Ernst, 9 Harris 90, and Sedgwick on Measure of Damages, sect. 475, &c.
    “ On the other hand, it was contended on the part of the defendant, that he should only be charged with the prices received by him for the oil sold, and interest thereon after deducting credits to which he is entitled; the proof being that he had sold the oil in good faith for the best prices he could get in the market at the dates of his several sales as reported.
    “ The plaintiffs having disputed the prices reported by defendant, it was agreed that the master should go with the parties or their solicitors to Oil City, and take such testimony as might there be offered on part of plaintiffs as to the market-price of oil on the several days on which defendant alleged he had made sales of oil. This was done, and the quotations of the Oil City Derrick, of the highest and lowest prices of oil sold on the dates mentioned, with the testimony of witnesses as to the correctness of those quotations, were taken, and are found with the other testimony herewith returned. Afterwards, upon the plaintiffs’ theory of the case, and at their request, it was agreed that the master should return to Oil City, and take from the files of the Oil City Derrick, the quotations of the highest and lowest prices of oil per barrel for each and every day from December 12th 1872, until January 8th 1877, which he did, and said quotations are returned with the testimony herein. * * *
    “ After careful consideration of the testimony and proofs, the master has concluded that a just and proper measure of damages in this case will be adopted by charging the defendant with the highest market-value of each run of oil on the day it is run, and interest from such date. The prices are obtained from the quotation from the Oil City Derrick, and are the prices that the master was satisfied do not include pipeage.”
    Exceptions were filed to this report, which the court, McJunkin, P. J., overruled, when defendant took this writ, and, inter alia, made the following assignments of error:
    2d. The court erred in overruling the defendants’ second exception to the report of the master, which was as follows:
    The master erred in adopting as the measure of damages the highest price at which oil was sold on the day that each run of oil was made from the wells into the pipe-line. The price of the oil should have been fixed or charged to the defendant at the price he actually received, which is fully shown by the testimony, with interest from that date, after deducting proper credits.

      3d. The court erred in overruling the defendant’s third exception to the report of the master, which was as follows:
    The master erred in receiving as testimony and basing his conclusion upon quotations of prices from the Oil City Derrick, of oil for each day for the time oil was run from these wells, as the evidence was objected to, and incompetent and unreliable. This and any other testimony taken by the master was not such evidence as he could, with reasonable certainty, find the highest and lowest prices of oil on the days mentioned. The master states “the prices are obtained from the quotations from the Oil City Derrick,” in all of which he erred. The defendant should have been charged alone for the price which he received for the oil.
    27th. The court erred in continuing to exercise jurisdiction, make orders and decrees in this case after the appellant, John T. Perdue, was declared a bankrupt, to wit: December 11th 1877.

      Thompson & Scott, for appellant. —
    the trustee sold in good faith why should he be called upon to account for more than he received ? That he made mistakes may be true, he may have sold sometimes too soon, and other times not soon enough, but in both cases he sold in good faith and for the best price he could get. He was compelled to run oil frequently for want of storage at the wells. This was not of choice but of necessity, and because he was thus compelled to run, is he to be charged the highest price on such days as if this act of running oil were to he punished ? The master wrongs him by charging the highest or assumed price on the particular days he was compelled to run, although the proof was clear for what the oil was sold. The plaintiff in error was bound to use ordinary diligence in selling the products of the wells, and when he sold in good faith, his own with Mrs. Long’s share, he should not be charged with more than he actually received. The error was not alone in the price fixed, but in receiving as competent evidence thereof the quotations of a newspaper. It is not alleged that the editor or proprietor of the Derrick had personal knowledge of the price of oil, as they only published from- day to day the quotations as furnished by others.

      S. F. Bowser, for appellees.
    As a principle of law there is but one measure of values for articles obtained otherwise than by purchase, and that is the market value; and Perdue having wrongfully possessed and used that which was not his own, must account to appellee for the same upon the basis of the highest market prices. This is the basis upon which the master finds, and he takes the quotations of actual sales of oil from the Oil City Derrick, a reliable paper published at the centre of the oil market. But there is another question raised — admitting the assignee did appear as set forth, had the court below power to act further ? This court had long pripr decreed Perdue a trustee ex maleficio of appellee, and ordered him to account as such. Hence Perdue accounts to appellee as trustee, and the assignee had no power to interfere with the rendition of this account in pursuance of said order. The property or fund held by the bankrupt in trust did not pass by assignment: Bankrupt Act, March 2d 1867, sect. 5053. And it becomes a serious question whether the assignee had any standing in this court.
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

There are twenty-seven assignments of error in this case. Most of them relate to questions of fact, and may be at once dismissed, as the evidence is not before us. There are enough left, however, to enable us to review to some extent the principles upon which the case was decided by the master and the court below.

The liability of John T. Perdue to account to Mrs. Long was settled in Long v. Perdue, 2 Norris 214. It was there held that the denial of Mrs. Long’s right by Mr. Perdue made him a trustee ex maleficio, not from the time of the denial, but from the date of the original agreement; and that he must account to her for the proceeds of the well. An account was accordingly decreed by the court below, and a master appointed for that purpose. The defendant appeared before the master, and furnished an account of the actual sales of the oil, and claimed credit for certain items of costs and expenses. The master rejected the defendant’s account of sales so far as prices are concerned, and adopted an arbitrary rule for fixing the value of the oil. This will appear from the following extract from his report: “After careful consideration of the testimony and proofs, and much study, the master has concluded that a just and proper measure of damages in this case will be adopted by charging the defendant with the highest market value of each run of oil on the day of its run, and interest from such date.” The case was disposed of by the master, and the court below, upon the theory that the defendant being a trustee ex maleficio, was liable to account, not for what he received for the oil, but for what he might have received for it. No authority was cited for this proposition, except those referred to by the plaintiff’s counsel before the master, and which do not apply. They were cases of technical trusts, or of the conversion of stocks deliverable upon a particular day. The distinction between such cases and the one in hand is manifest. The defendant was lawfully operating a well in which he had a joint interest with the plaintiff. It was his duty, as settled by the former decree of this court, to account to plaintiff for the proceeds of half the oil. Under such circumstances there is no rule of law or equity which would make him responsible for the highest market price of the oil upon, the days on which it was turned into the pipe lines. In the absence of fraud or bad faith in the sales, neither of which is pretended, the true measure of damages would be the actual sales. The oil market, as is well known, is fluctuating, and at times experiences violent changes. Upon the day when the plaintiff turned the oil into the pipe lines, he may have been unable to sell, or he may have had reasons to anticipate a rising market. Nor do we attach importance to the fact, found by the master, that defendant owned other wells and produced other oil, which was also run into the tanks and pipe lines, and igade other sales upon other days and at different prices. Such facts, if conceded, have no bearing upon the sales of this particular oil.

We are of opinion that the rule laid down for the measure of damages was erroneous. As there was no bad faith shown, the defendant should have been charged only with what he received for the oil.

In this view of the case the matter referred to in the third specification becomes unimportant. In any event we have no evidence before us, and cannot say whether it justified the admission of the “ Oil City Derrick” as authority upon the state of the market. Besides, the master states that he took these quotations by the agreement of the parties.

It was also alleged (27th assignment) that the court erred in continuing to exercise jurisdiction after the said John T. Perdue had been declared a bankrupt. The record shows a certificate, under the seal of the District Court of the United States, for the Northern District of Ohio, that the said Perdue had been adjudged a bankrupt on December 8th 1877. The assignee was permitted to come in and defend in the court below, and this appeal was taken by him. I see no reason why the parties may not go on in the state court and get their judgment. No attempt to restrain them through the United States courts has been made. The claim here being clearly provable in bankruptcy, the defendant’s discharge would render a decree of little avail, however. Yet it may be used to secure a dividend against his estate.

The decree is reversed at the cost of the appellees, and the report is ordered to be sent back to the master to restate the account in accordance with the principles indicated in this opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Esther Hutchinson's Appeal.
    1. The omission of the middle letter in a name in the judgment-index is fatal to a lien.
    2. There can be no distinction between purchasers and subsequent judgment-creditors. The latter must be presumed to have searched for prior liens before giving credit to the defendant, and whether they did or did not, the rule which requires the judgment-index to give accurate information cannot be departed from. It is always the duty of the plaintiff to see that his judgment is correctly entered on the index.
    3. Wood v. Reynolds, 7 W. & S. 406, followed.
    November 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Butler county: of October and November Term 1878, No. 91.
    Appeal of Esther Hutchinson from the decree of the court overruling her exceptions to the report of the auditor to distribute the fund arising from the sheriff’s sale of the real estate of W. A. Black.
    Rev. William A. Black and M. H. Black., his wife, on the 2Sd of August 1875, made their joint judgment-note to Esther Hutchinson for $717, due in one year. On the same day judgment was entered on this note in Butler county, at October Term 1875, but by mistake the middle initial “ A ” was omitted and the letter “ G ” inserted in its place, and the judgment was entered as against “ W. G. Black.” At the time this judgment was entered, judgments were entered against W. A. Black, which, at the time of the sale of his real estate, amounted to about $2400.
    Mr. Black’s real estate was sold by the sheriff of Butler county on October 1st 1877, to Mrs. Hutchinson for $4600. Several judgments were entered subsequent to Mrs. Hutchinson’s, more in all than the fund realized by the sheriff on the sale of the land. All the judgments, except Mrs. Hutchinson’s, were entered against W. A. Black.
    An auditor was appointed to make distribution, and after a hearing of the matter made a report, allowed no part of the fund to be applied to the payment of Mrs. Hutchinson’s judgment, and gave as a reason that the_ judgment was entered against W. G. Black and not against W. Á. Black.
    Mrs. Hutchinson excepted to the report, but the court, Bredin,. P. J., overruled her exceptions and confirmed the report. From this decree this appeal was taken.

      McCandless & Greer, for appellant.
    The law knows of but one Christian name. The insertion or omission of a name is therefore immaterial and may be disregarded: Edmundson v. State, 17 Ala. 179; Thompson v. Lee, 21 Ill. 242; Erskine v. Davis, 25 Id. 251; Bletch v. Johnson, 46 Id. 110; Hendershott v. Thompson 1 Mor. (Iowa) 186 ; State v. Martin, 1 Mo. 391; Hart v. Lindsey, 17 N. H. 236 ; King v. Hutchins, 28 Id. 661; Dilts v. Kinney, 15 N. J. 130; Franklin v. Talmadge, 5 Johns. (N. Y.) 84; Keene v. Meade, 3 Pet. 7 ; Roosevelt v. Gardinier, 2 Cow. (N. Y.) 463 ; Allen v. Taylor, 26 Vt. 599.
    No man can have more than one Christian name, and an initial letter betwixt the Christian and surname is no part of either : Rex v. Neuman, Ld. Raym. 562; Bratton v. Seymoure, 4 Watts 329 ; Paul v. Johnson, 9 Phila. Rep. 32; Milk v. Christie, 1 Hill 102.
    The law supposes every person to have two names — one the family, the other the given name. A separate single letter is not a name: Frank v. Levie, 5 Rob. 599; cited in 4 Abbott’s N. Y. Dig.

      Thompson Seott, George W. Meeger and MeJunkin Campbell, for appellees.
    The lien docket is not a record but an index: 4 Wright 213. If the Christian names of the defendants are not entered on the judgment-docket, the judgment does not affect subsequent purchasers or judgment-creditors: 3 Harris 177. The entry of a wrong Christian name would be worse than its omission. The entire want of the name might invite inquiry, and lead to an examination, but when the record is complete in form, but wrong in fact, no suggestion of error is made. The creditor is not only thrown off his guard, but the only record which is evidence to him gives him assurance that it is perfect. Why should not he be protected? His only protection is to displace the former judgment erroneously entered. Of similar import are 6 Wharton 349; 11 Id. 99 ; 5 Watts 186; 11 Whart. 99; Wood v. Reynolds, 7 W. & S. 406; 4 Wright 213; 11 P. F. Smith 457. The current of authority is uniform and unbroken, and sustains the viewthat only judgments’entered against the defendant properly, and in his right name, can claim the proceeds of the sale of his real estate, against other judgment-creditors.
   The judgment of the Supreme Court was entered Nov. 28th 1879,

Per Curiam.

This case is ruled by Wood v. Reynolds, 7 W. & S. 406. It was there held that the omission of the middle letter of a name in the judgment-index was fatal to the lien. “It is certain,” say the court, “that an initial, standing with a name of baptism, is no part of it in pleading; but it follows not that an omission of it is to be disregarded as an index of notice to purchasers.” There can beAistinction between purchasers and subsequent judgment-creditors. The latter must be presumed to have searched for prior liens before giving credit to the defendant, and whether they did or not, the rule which requires the judgment-index to give accurate information cannot be departed from without great danger. It is always the duty of the plaintiff to see that his judgment is correctly entered on the index.

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


author: Mr. Justice Mercur

text:
    Commonwealth, to use of Graham, versus McCleary and Conway.
    1. An action of debt was brought on a bond executed by M. and 0., jointly and severally, in the penal sum of §10,000. Judgment was taken against M. for want of an affidavit of defence. The prothonotary liquidated the judgment for the amount of the whole penal sum, execution issued therefor, and §2000 thereof was collected. 0. put in a plea, and on the trial of the issue, the court instructed the jury to return a verdict for §4000 for plaintiff, reserving the question whether the suit was prematurely brought, and whether taking the judgment against M., and issuing an execution thereon, was a bar to plaintiff’s recovery. The court afterwards held that the plaintiff made the judgment final by issuing execution, and refused to enter judgment on the verdict. EelcL, that this was error; that the judgment was not final, but interlocutory.
    2. O’Neal v. O’Neal, 4 W. & S. 130 ; Finch «. Lamberton, 12 P. F. Smith 370; McKinny v. Mitchell, 4 W. & S. 25 ; and Russell et al. v. Archer, 26 P. F. Smith 188, reviewed.
    November 18th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Butler county: Of October and November Term 1878, No. 306.
    Debt on a bond by the Commonwealth for the use of G. H. Graham, committee of Mrs. Elizabeth McCleary, a lunatic, against J. J. McCleary and George C. Conway.
    Elizabeth McCleary was declared a lunatic, and her son, J. J. McCleary was appointed her committee on August 15th 1870, and qualified and assumed the duties of the trust. On November 29th 1871, he petitioned the court for leave to sell her real estate and obtained a decree of sale, and gave his bond with his brother-in-law, George C. Conway, as surety, in the sum of $10,000, conditioned according to law, which was approved by the court. Sale was made of the real estate by the committee to W. G. Stoughton for the sum of $12,000, which sale was confirmed on the 28th of May 1872, and the purchase-money all paid by Stoughton to the committee.
    On the 12th of January 1875, Mrs. Moore and other heirs of the estate, presented their petition to the Orphans’ Court, praying for an order on the committee to give additional security. A rule was granted by court on the committee to show cause why he should not give security in $24,000, orbe removed from the trust. Before the return-day of this rule the committee left the state and has not returned. The rule was made absolute, the committee discharged and ordered to pay over the funds in his hands to his successor. George II. Graham was appointed his successor, as committee.
    An auditor was appointed, and reported that the former committee, McCleary, owed the estate $4000.

      In the meantime, on the 28th of January 1875, Graham brought this suit against J. J. McCleary, the former committee, and his bail, George C. Conway, for the recovery of the amounts due from the committee to the estate. A praecipe and declaration in debt was filed and affidavit of amount due. Summons and rule to file an affidavit of defence in twenty-one days or judgment issued, and were returned by the sheriff served on both defendants. George C. Conway, t'he security, filed an affidavit of defence, and at the expiration of the twenty-one days, one of the attorneys for the plaintiff, entered the following praecipe in the rule-book:
    “Now, February 20th 1875, prothonotary will please enter judgment against J. J. McCleary, for want of an affidavit of defence.”
    On this praecipe the prothonotary entered judgment against Mc-Cleary for want of an affidavit of defence; and without any praecipe or direction, liquidated the amount after the entry of judgment in the sum of $10,000, the penal sum mentioned in the bond. The same counsel issued execution against McCleary on this judgment, and realized from the sale of real and personal estate, the sum of $2000 and costs. This sum was allowed as a credit to the former committee by the auditor, leaving the balance of $4000 as reported by the auditor after all his property had been sold.
    The defendant, Conw'ay, then pleaded that the judgment entered against McCleary in the same suit, was a bar or defence to recovery against him.
    On the 12th of June 1876, Graham presented his petition to court, setting forth all the facts in the case and praying the court to strike off the liquidation made without authority by the prothonotary, on the ground that the judgment against McCleary was only interlocutory, and was not the subject of liquidation by the prothonotary, but that a jury must assess the damages. This rule was granted by the court, but finally dismissed for the reasons, that the plaintiff had treated it ás a final judgment by issuing execution on it; and second, that it was not necessary, as the Act of Assembly passed 4th April 1877, Pamph. L., p. 52, as follows: “ That when judgment has been or may hereafter be obtained in any court of record in this Commonwealth, against one or more of several co-defendants in default of appearance, plea, or affidavit of defence, said judgment shall not be a bar to recovery in the same suit against the other defendants jointly, or jointly and severally, liable as coobligors, co-partners or otherwise,” prevented the defendant, Conway, from setting up the judgment against McCleary as a bar to recovery against him.
    The case was then tried, and the court, after the parties had put in all their testimony, directed a verdict for the plaintiff, George H. Graham, committee, for $4000, reserving the two questions raised by the pleadings, 1. Could the action be maintained by reason of the plaintiff having taken judgment against McCleary for want of an affidavit of defence ? and 2. Was it prematurely-brought before fixing the principal ?
    On the argument of the reserved questions the plaintiff renewed the petition to treat the judgment against McCleary as interlocutory, and to strike off the liquidation made by the prothonotary, and to liquidate the interlocutory judgment against McCleary at the amount found by the jury when the case was tried against Conway, the security. The court, Bredin, P. J., refused. They further held that the Act of 1877 was unconstitutional, and refused to enter judgment for the plaintiff on the verdict.
    The plaintiff took this writ, and alleged that the court erred, 1. In not holding that the judgment against J. J. McCleary, for want of an affidavit of defence, was interlocutory, and in not striking off the liquidation.- 2. In holding that the Act of the 4th of April 1877 was unconstitutional. 3. In not entering judgment for the plaintiff on the reserved questions.

      J. M. Thompson and McCandless Greer, for plaintiff in error.
    The judgment against McCleary was interlocutory. It is no bar to recovery against the other defendant, where judgment is rendered by default against one defendant and the prothonotary liquidates the sum, without waiting for an assessment against the other. This being the act of the officer, it is amendable in the courts below by striking out the liquidation, or by treating it in the Supreme Court as amended: Finch v. Lamberton, 12 P. F. Smith 370; O’Neal v. O’Neal, 4 W. & S. 130; Noble’s Adm. v. Lalley, 14 Wright 281; Weikel v. Long, 5 P. F. Smith 238.
    There seems no good reason why, because one defendant was fixed for, and a certain sum of money secured, that therefore his co-defendant, whose liability was thereby lessened, to the extent of the money thus secured, should be permitted to plead his partial protection as an absolute defence to the whole claim. Instead of being injured, he is clearly benefited, and by this act his liability pro rata reduced. Conway’s defence is purely technical. Nothing was done to prejudice him, but on the contrary, his interest was protected by the very act of which he now seeks to avail himself as a bar. That this defence was taken away so far as the legislature could, is clearly shown by the Act of April 4th 1877, Pamph. L. 52.

      George A. & A. T. Black and L. Z. Mitchell, for defendant in error.
    The issue of the execution was the act of the plaintiff and the judgment was final: Williams and Locke v. McFall and Millington, 2 S. & R. 281; Lewis v. Smith, 2 Id. 142; Sellers v. Burke, 11 Wright 349; Watkins v. Phillips, 2 Whart. 209.
   Mr. Justice Mercur

delivered the opinion of the court January 5th 1880. .

This was an action of debt on a bond executed by the defendants jointly and severally, in the penal sum of $10,000. Judgment was taken against McCleary for want of an affidavit of defence. The prothonotary liquidated the judgment for the amount of the whole penal sum. Execution issued therefor, and some $2000 of it was collected. Conway' put in a plea, and on the trial of the issue, thé court instructed the jury to return a verdict in favor of the plaintiff for $4000, reserving the question whether the suit was prematurely brought, and whether taking the judgment against McCleary and issuing execution thereon, was a bar to plaintiff’s recovery. The court afterwards was of opinion, that the plaintiff made the judgment final by issuing execution thereon, and refused to enter a judgment on the verdict.

It may be conceded as a general rule, there can be but one final judgment in any personal action: O’Neal v. O’Neal, 4 W. & S. 130 ; and if the plaintiff takes a final judgment against one co-defendant, it bars further proceedings in the same suit., against the other defendant or defendants: Finch v. Lamberton, 12 P. F. Smith 370. Whenever, however, the manifest justice of the case requires it, and it is not shown that the first judgment was intended to be final, the inclination of the modern cases is to hold it to be interlocutory only. Thus O’Neal v. O’Neal, supra, was a suit against two defendants on a penal bond. Judgment was rendered against one of them by default, “ for want of an appearance and plea for $910, being the amount of the penalty of the bond.” It was therefore said in that case, that the judgment was not in an interlocutory form, but for a definite sum. 'It was nevertheless held, that judgment for want of a plea is essentially interlocutory; and as the court below might have ordered the sum stricken out, this court would treat it as a nullity, and hold the judgment to be interlocutory. Finch v. Lamberton, supra, was an action of assumpsit against two defendants. Judgment was rendered against one for want of an affidavit of defence, “ amount to be liquidated by the prothonotary.” Same day the prothonotary did liquidate the damages. The other defendant took defence, and an award of arbitrators was made against him. The court refused to set aside the award, and judgment was entered thereon. On writ of error to this court, the judgment was affirmed. It was then held, where judgment is rendered by default, and the prothonotary liquidates the sum without waiting for a trial and assessment of damages against the other, the liquidation being the act of the officer, is amendable by striking it out in the court below,, or by treating it as amended in this court.

There is another class of cases illustrating the same principle. McKinney et al. v. Mitchell, 4 W. & S. 25, was a suit against one defendant. He made affidavit of defence to a part only of plaintiff’s claim, and on their motion judgment was rendered secundum regulum, against the defendant for the residue, a specific sum. This sum, together with all costs, was actually paid by the defendant and received by the plaintiff. It was held, the plaintiff might still proceed to issue, trial and judgment, for the remaining part of his claim which was disputed. Russell et al. v. Archer, 26 P. F. Smith 473, was also a case where the defendant made an affidavit of defence to a part only of the claim. The plaintiff took judgment for the part admitted to be due, and issued execution therefor. Thereupon the defendant entered bail for stay of execution. On a subsequent trial in regard to the residue, the court below held the former judgment was not final, except for purposes of lien and execution. In other words, that it had not such a characteristic of finality, as to bar a recovery for the part in dispute.

It is- true these two cases rested principally on a rule of court. In the former, it impliedly authorized the judgment; and in the latter, in clearer terms, the execution. Nevertheless, the fact remains, that part of the judgment in the first case was collected by a voluntary payment, and in the latter, an attempt was made to collect by execution. In the last case it was said, where the first judgment “was not designed to put an end to the suit, there is no impropriety in so treating it.” To the same import is Coleman v. Nantz, 13 Id. 178.

In the present case, McCleary was the principal debtor, and Conway was the surety. By the prompt action of the plaintiff in issuing execution, the surety was relieved to the amount collected. The latter has no just cause to complain of this. It was in his interest and for his benefit. We will not presume the plaintiff thereby intended to abandon all claim against the surety, who was really the only solvent defendant. The plaintiff did not discontinue of abandon the case against Conway, but pressed it to trial. Under all the circumstances, we conclude, that the action of the plaintiff in issuing execution did not indicate the intention, or have the effect, to make final, a judgment which otherwise would have been interlocutory only. It is not now alleged, that the suit was prematurely brought. The learned judge therefore erred in refusing to enter judgment in favor of the plaintiff, on the last reserved question. It follows, the case does not need the curative power of the Act of 4th April 1877, and we express no opinion as to its application. Inasmuch, however, as no judgment has yet been entered on the verdict, all we can do is to quash the writ of error.

Writ quashed.


text:
    Jane Neil's Appeal.
    1. The mother of illegitimate children, by the Act of April 27th 1855, is rendered competent to inherit from them as though they were legitimate.
    2. The act does not render the children legitimate for any other purpose than to take and transmit the real and personal estate so taken and inherited according to the intestate laws of the state.
    November 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, and Trunkey JJ. Sterrett and Green, JJ., absent.
    Appeal from the Orphans’ Court of Washington county: Of October and November Term 1879, No. 298.
    Appeal of Jane Neil from the decree of the court confirming the report of the auditor appointed to distribute the estate of her husband, Samuel J. Neil, deceased.
    Samuel J. Neil was the illegitimate son of Hannah Thompson. He died in the year L876, seised of a tract of land, intestate, without issue, and left surviving him his mother, Hannah Thompson, and a widow, Jane Neil.
    The real estate belonging to the decedent was sold, under an order of the Orphans’ Court, for the payment of debts. The balance of the purchase-money, left in the hands of the administrator after the payment of debts, was the fund for distribution and the subject-matter of this controversy.
    This, it was admitted, must be distributed as realty, under Act of April 8th 1838, sec. 18, Purd. Dig. 810, pi. 37. The widow claim.ed the whole fund, and the mother claimed the entire estate, subject to the widow’s dower.
    The auditor awarded the entire fund to Hannah Thompson, subject, however, to a life-estate in the one-half to the widow. The court, Willson, P. J. (of the Fourteenth Judicial District), affirmed this finding of the auditor in an opinion saying:
    “ The two exceptions are to the same point, and both have reference to the effect of the Act of the 27th of April 1855, conferring inheritable capacity on the mother and child, in cases of illegitimate children. The widow, in claiming the whole of the fund for distribution, bases her right to it on the 10th section of the Act of the 8th of April 1833, which provides that, ‘ in default of known heirs or kindred, competent as aforesaid, the real estate of such intestate shall be vested in his widow,’ &c. On the other hand, Hannah Thompson claims that she is entitled to the whole of the fund for distribution, under section 3 of the Act of the 27th of April 1855, subject to the rights of the widow to the interest in the one-half of said fund, during the life of the widow. In behalf of the widow, it is claimed, that the Act of the 27th of April 1855, has no effect except in cases where, without that act, there would be an escheat. If this is correct, it would seem that the decision in Opdyke’s Appeal, 13 Wright 373, was erroneous; as in that case there could not have been an escheat, there being a legitimate child competent to take, and yet the illegitimate children were held to be equally entitled, with the legitimate child, in the distribution of their mother’s estate. See also Forsythe’s Appeal, Leg. Int., vol. 36, p. 28. In the present case it is a matter of no importance how the mother takes, if she is entitled to take at all. The intestate dying without children, the question whether the mother would take along with children, does not arise. The statute declares that she shall have capacity to take his real estate, as an heir, in fee-simple, and, in the absence of any other person to share with her, as an heir in fee-simple, she is entitled to take the whole of her son’s real estate, subject to the rights of the widow therein. The statute endows the mother and cwliild with capacity to inherit from each other, but does not undertake to make the child legitimate ; nor does it confer any inheritable capacity on any other persons than the mother and the child. Where the evidence shows that they are the only persons who have this capacity to inherit from each other, then the right of the survivor to take the whole of the estate of the decedent, is under the Act of 1855, beyond any doubt. That the act makes a 'change in the provisions of the Act of the 8th of April 1833, in regard to the descent and distribution of real and personal estates, is well settled ; it being said by Judge Agnew in Opdyke’s Appeal, supra, that, ‘when the Act of 1855, declared those born out of lawful wedlock should inherit from their mother, and their mother from them, it declared that, which, to this extent, is directly repugnant to the former law, and to the same extent therefore, that law is repealed,’ and to the same effect, in the case of adopted children, is the ruling in Ann Johnston’s Appeal, 6 Norris 437. As the evidence established the fact that Samuel J. Neil was the son of Hannah Thompson, the auditor was right, under the Act of 1855, in awarding to her the whole of the firnd, subject to the widow’s rights in the one-half thereof.
    “ The exceptions, therefore must be 'dismissed and the report confirmed.”
    From this decree the widow took this appeal.

      Dougan & Todd, for appellant.
    The mother contemplated by the Act of 1883, was competent — qualified; fit; having legal power — because of her propinquity to the intestate; the mother of an illegitimate is only a creature of the legislative will, designed to answer a particular emergency, and having the passive attribute of capability. We contend that, in passing the Act of 1855, the legislature did not intend to make the claim of a mother of an illegitimate as to realty, paramount to the claim of his wife. Giving such a mother inheritable blood — endowing her with capacity to- take at all — and investing her with the qualifications requisite to defeat the operation of the tenth section of the Act of 1833, are vastly different things. The words mother and heir are not synonymous as they are used in the Acts of 1833 and 1855.
    ' If a person can be found competent to inherit realty under the Act of April 8th 1833, the law gives that person the preference. If no such person can be found, in the case of illegitimates, the realty is transmitted under the Act of 1855. If, indeed, the legal effect of the Act of 1855 was to make a bastard the son of his mother, and to make the woman who gave him birth, his mother, then are illegitimate children legitimatized, and the mother of an illegitimate is “ competent as aforesaid.” That such was not the intent of the act is clearly shown in Grubb’s Appeal, 8 P. F. Smith 55; Steckel’s Appeal, 14 Id. 493; Woltemate’s Appeal, 5 Norris 219.
    Had the Act of 1855 given the illegitimate a mother — legitimated him — such a mother might have been competent to take his realty under the fifth section of the Act of 1-833 ; she would have been the species of heir contemplated in that law. However, as the illegitimate remains as he was before the Act of 1855 was passed, having no mother, the award of his realty to one who does not answer the requirement of the fifth section, is not only a violation of the proprieties of legal reasoning, but it is introducing, without apparent warrant, an element not in harmony with the intestate system.

      Freeman Brady, Jr., for appellee.
    There were common-law disabilities engrafted on our intestate system. The legislature intended to remove these, and apt words were used to accomplish this intent. The act gave to the illegitimate henceforth a name, that of his mother, and endowed him with inheritable capacity, but confined his right to take and transmit estates to certain defined limits, but within the scope of the limitation the classes intended to be benefited take as large an interest as the same classes do where the children are born in lawful wedlock — not that the children were legitimated.
    The mischief to be remedied consisted in this, that when an illegitimate died intestate, without issue, the right was denied to persons sustaining the relation of mother and child to inherit respectively each from the other, under such circumstances, as they would have done had the child been legitimate.
    There were no other parties, either by the letter or spirit of this law, intended to be benefited but these. The wife of the illegitimate under this construction takes just such an interest in her husband’s estate, as the wife of the man who was born in lawful wedlock — no greater, no less. This is consonant with every principle of right and justice, and accomplishes the legislative intent.
   The judgment of the Supreme Court was entered November 28th 1879,

Per Curiam.

The Act of April 27th 1855, expressly provides that illegitimate children, with their mother, shall respectively have capacity to take and inherit from each other personal estate as next of kin, and real estate as heirs in fee-simple. Words could hardly have been found to express more clearly the idea that so far as respects each other the bar of legitimacy is removed. Of course the Act of 1833 is so far modified where it provides, that in default of known heirs or kindred, competent as aforesaid, the widow shall be entitled to the whole estate. The mother of illegitimate children, by the Act of 1855, is rendered competent to inherit to them as though they were legitimate. It is true that the act does not render the children legitimate for any other purpose than to take and transmit the real and personal estate so taken and inherited according to the intestate laws of this state. The cases cited and relied on by the learned Counsel for the appellant all confirm this view. The precise point, however, “had not been decided, and it seems reasonable that the costs of this appeal should be paid from the estate of the intestate, and to this the counsel of the appellee makes no objection.

Decree affirmed and appeal dismissed : the costs of this appeal to be paid from the estate of the intestate.


author: Mr. Justice Gordon

text:
    Wylie's and Quail's Appeal.
    S. assigned for the benefit of his creditors all his estate, real, personal and mixed. At the date of the assignment he was entitled to a legacy from a certain estate. Among the assets collected by the assignee was a portion of this legacy. The assignee filed his account, including this amount, and his report was confirmed, and an auditor appointed to distribute the fund among creditors. Before the auditor M. claimed the amount collected from the legacy by virtue of a prior agreement with S., made before his assignment, by which the money from the legacy was to be appropriated, as soon as collected, to the payment of two notes held by a certain bank upon which M. was surety. This claim the auditor and court allowed. Held, that this was error; that the fund in court was, by the decree of the court, appropriated to creditors, and the auditor was ordered to distribute it to them, and he had no authority to pass upon the rights of an adverse claimant and award any portion of the fund to him. Held, further, that the agreement did not constitute an equitable assignment of the legacy; that it was only an agreement of the debtor to appropriate the proceeds in relief of his surety, hut no such direct appropriation of the claim itself to the surety as would authorize a direct payment to him.
    November 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Stbrrett and Green, JJ., absent.

      Appeal from the Court of Common Pleas, of Washington county: Of October and November Term 1879, No. 258.
    Appeal of Robert Wylie and Mary C. Wylie, administrators of the estate of William Wylie, deceased, and William Me. Quail, from the decree of the court dismissing the exceptions to the report of the auditor appointed to distribute the funds in the hands of the assignee of John E. and Julius L. Slemmons.
    The case is stated in the facts set forth in the opinion of this court, and the following portion of the opinion of the court below, Hart, P. J., in overruling the exceptions to the auditor : “ Money was received by the assignee, on account of the legacies, to the amount of $174.60. That money is to be regarded as having been specifically appropriated by the assignors, in relief of their surety, prior to the assignment. An assignee takes the property of his assignor subject to all agreements and equities subsisting at the date of the assignment. In Campbell’s Appeal, a late case from this county, 20 Pitts. L. J. 101, where the assignor, being indebted to his attorneys, agreed with them that they might retain the amount of his indebtedness to them out of the proceeds of a certain note then left with them for collection, and afterwards made an assignment for the benefit of creditors, it was held that the assignee took subject to the agreement, and could claim only the balance of the proceeds of the note after deducting the attorneys’ charges, including the assignor’s prior indebtedness to them. Here, it may be said, that by her agreement with the assignors, the surety left the collection of the legacies to them, and trusted to them to pay over the proceeds, to her relief upon the notes in the bank. And that circumstance, perhaps, would prevent the agreement from operating as a complete equitable assignment of the fund,'so as, for instance, to place the money beyond the reach of an ^attaching creditor. But no question of that kind has arisen. Thñomoney has been received by the assignee. Shall it not be appliedfin good faith, as the assignors had agreed, for a valuable consideration, that it should be applied ? It seems to me that the auditor has' solved this question correctly, and has. properly awarded the ' money to Mrs. McGill,”

      John W. & A. Dornan, and Dougan & Todd, for appellants.
    To sustain an equitable assignment or equitable lien, there must be an appropriation of the fund of such a nature as to confer a complete and present right on the assignee to collect it, either at once or at some future time, and an entire abandonment by the assignor of any right to collect, appropriate or control it. A mere promise by a debtor to pay his creditor out of any certain fund when he receives it, does not give the debtor such a specific lien on the fund as can be enforced: Rogers v. Hosack’s Exr., 18 Wend. 319; Christmas v. Russell, 14 Wall. 70; Trist v. Child, 21 Id. 447; Gibson v. Stone, 43 Barb. 285; Hoyt v. Story, 3 Id. 262; First Nat. Bank of Mt. Joy v. Gish’s Assignees, 22 P. F. Smith 13 ; Leading Cases in Equity, 3d Am. ed. 361. Neither the auditor nor the court had power to award any part of the amount shown by the assignee’s account to be in his hands for distribution, to a party claiming adversely to the trust.
    The assignment conveyed all the estate of the assignors in trust for the benefit of their creditors. Under this power the assignee collected the assets of the estate, and his account confirmed by the court, ascertained the amount for distribution under the assignment. The auditor was appointed to distribute the amount so ascertained “ among the creditors.” His authority was limited, by the terms of his appointment, to this special purpose. He could not go behind the decree confirming the account to inquire whether the balance was correct or not: Wither’s Appeal, 4 Harris 152; Appeal of Benson, Phelps & Way, 12 Wright 159 ; Gossner’s Est., 6 Whart. 401; Okie’s Appeal, 9 W. & S. 174; Jefferis’s Appeal, 9 Casey 39.
    No appearance nor paper-book for appellees.
   Mr. Justice Gordon

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

John E. and Julius L. Slemmons, by deed dated March 24th 1877, assigned, for the benefit of their creditors, to W. A. Mickey, all their estates, real personal and mixed.

At the date of the assignment the assignors were entitled to certain legacies from the estate of William Slemmons, late of Wooster, Ohio, deceased. Among other assets of the assigned estate, which were collected by Mickey, were $174.60 received on account of these legacies. The assignee filed an account, including, among other items, the amount received, as above stated, from the Slemmons estate, which was duly confirmed January 13th 1878, and an auditor appointed to make distribution of the fund among creditors.

Before the auditor appeared the appellee, Mrs. M. J. McGill, who claimed that the $174.60 collected from the estate of William Slemmons by the assignee, belonged to her by virtue of a parol agreement with the assignors, made before the assignment, by which the money coming from the legacies, above mentioned, was to be appropriated as soon as it was collected, to the payment of two notes held by the Washington Savings Bank, upon which she was surety.

The claim thus made was allowed by the auditor, and his action approved by the court.

We think this was error, for two reasons : 1. The fund in court was, by the decree of the court, appropriated to creditors; the auditor was ordered to distribute it among creditors, and lie had no authority to pass upon the rights of an adverse claimant and award this fund, or any part of it, to such claimant. The decree definitely fixed the rights of the creditors to have the money in court divided among themselves, and, as long as that decree stood, neither the auditor nor the court could turn it over to some other party. If authority is wanting, in support of a proposition so obvious in itself, it will be found in Okie’s Appeal, 9 W. & S. 156, and Jefferis’s Appeal, 9 Casey 39.

2. There was no actual assignment of the legacies to Mrs. McGill. There was but an agreement to pay the money, which might be received from them, on the notes for which she was surety, and to this agreement the executor of William Slemmons was not a party. John E. Slemmons testifies: “ The money from Ohio was to be paid at the savings bank on these notes when I received it from the executor.” Julius L. Slemmons says : “ I was to pay the money I received from the executors in Ohio to the savings bank to be applied on my note. I made this agreement with the bank when I got the money. There was no arrangement made that my sister was to collect the money. I was to receive it and pay it to the bank.” This does not constitute an equitable assignment of the claim, for there is here only the agreement of the debtor to appropriate the proceeds in relief of his surety, but there is no such direct appropriation of the claim itself to the surety as would authorize a direct payment by 'the executor to her.

In the case of the Bank v. Gish’s Assignees, 22 P. F. Smith 13, it was held, that where B. drew .a check on the bank before his assignment, which was not presented until after, it was not an appropriation to the payee, and that the money remaining in the bank passed to B.’s assignees. This is a stronger case than the one in hand, for the check authorized a direct payment to the payee, had it been presented in time. But Mrs. McGill had nothing to present to the executor of William Slemmons’s estate to show her right to the fund in question ; she had but an oral promise that the fund, when received, should be applied to the notes, but before it was received the power of those who had so promised had passed to their assignee, and hence, the promise or agreement fell from a want of power on part of the promisors to execute it.

The decree of the court below is now reversed and set aside at the costs of the appellee, and it is ordered that the whole fund now in court or in the hands of the assignee, as the case may be, be distributed among the creditors of the assignors as their rights may appear.


text:
    The Uniontown Building and Loan Association's Appeal.
    1. Where a judgment-creditor waives his right to a fund arising from a sale on a subsequent judgment, he does not thereby prejudice his right to claim a fund arising from a sale of other property of the debtor upon another subsequent judgment.
    2. If there are any equities to compel the prior lien-creditor to recover satisfaction from any particular'fund, the subsequent creditor must notify him thereof, for a prior creditor is not bound to know of the existence of any subsequent encumbrances.
    November 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrbtt and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Fayette county: Of October and November Term 1879, No. 358.
    Appeal of the Uniontown Building and Loan Association from 'the decree of the court confirming the auditor’s report in the distribution of part of the proceeds of the sheriff’s sale of the real estate of George. A. Torrence and Joseph Johnston.
    On December 5th 1874, judgments were entered in favor of Benjamin Boyce against George A. Torrence, on awards of arbitrators, and on December 22d 1876, verdicts were entered on the same.
    On April 23d 1875, a mortgage was recorded in favor of the Uniontown Building and Loan Association against George A. Torrence and Joseph Johnston, upon the National House property, in Uniontown.
    On the same day was recorded a mortgage on two hundred and-eight acres of land, in Dunbar township, against George A. Torrence, and in favor of Mackintosh, Hemphill & Co. Judgment was entered on the bond accompanying this latter mortgage, and an execution issued thereon, the property subject to the mortgage was sold to the plaintiff in the writ, and the purchase-money credited on the execution. Afterwards a scire facias was issued upon the Uniontown Building and Loan Association m'ortgage, judgment entered, a scire facias issued, and the National House property sold.
    Mackintosh, Hemphill & Co. having taken an assignment of the balance due on the Boyce judgments, which were first liens on both the properties, claimed from the sheriff enough of the half interest of George A. Torrence in the money realized from the latter sale, to pay the balance due on said judgments, and obtained a rule on the sheriff to pay the money into court, which was accordingly done, and an auditor appointed to ascertain who was entitled to it.
    The auditor, inter alia, reported:

      “ It is contended for the Uniontown Building and Loan Association, that as the Boyce judgments were the first liens upon the property sold by Mackintosh, Hemphill & Co., he was bound to look after the money made by such sale, and as he failed to do so he cannot novr come in on the fund which has been made from the mortgaged premises to which the building and loan association lien was confined.
    “ But it has been decided that, where a party has two funds out of which he may realize his debt he may elect either, and he may waive his precedence upon any fund and allow it to go to a junior lien, without prejudice to his own debt as against any other property upon which he also has a lien. And if there are any equities that would compel any such prior lien-creditor to receive satisfaction from any particular fund, such prior lien-creditor must be notified of such equity in time to prevent loss to him by a waiver of such precedence : Bank of Pennsylvania v. Winger, 1 Rawle 295; Konigmaker v. Brown, 2 Harris 274 ; Adams v. Heffernan, 9 Watts 529.
    “ The Uniontown Building and Loan Association was bound to notify Benjamin Boyce to satisfy his debts out of the money made on the Mackintosh, Hemphill & Co.’s execution; and inasmuch as it failed to exercise due vigilance in this respect, it does not appear clothed with such equities as to compel the auditor to postpone the prior judgment-creditor.”
    Exceptions were filed to this report, which the court overruled and confirmed the report, when the building association took this appeal.

      Alfred Hotvell, for appellant.
    The creditor, who may at law, control the application of two or more funds, shall not be suffered to use his legal advantages in a way to exclude the demand of a fellow creditor whose legal recourse is but to one of them : Ramsey’s Appeal, 2 Watts 228; Hastings’s Case, 10 Id. 303; Delaware and Hudson Canal Co.’s Appeal, 2 Wright 512.
    The assignment by Boyce of his judgments to Mackintosh, Hemphill & Co., was an attempt to defeat the manifest equity of the appellant, and deprive it of its right of subrogation or its equivalent, the application of the money in the hands of Mackintosh, Hemphill & Co. to the Boyce judgments. The rights of a subsequent creditor party cannot certainly be subject to the mere caprice of a prior creditor, and his choice as to whom he will transfer his priority. ■

      JR. H. Lindsey, for appellees.
    It is true Mackintosh, Hemp-hill & Co., in whose favor Boyce waived his prior lien, afterwards purchased the Boyce judgments. But the evidence shows that there was no arrangement between the parties (as is alleged), and that the two transactions were separate and distinct. The sale was made on the 6th of September 1876, and Mackintosh, Hemphill & Co., at once gave a credit of that date upon their judgment, as appears from the writs of fi. fa. subsequently issued. The purchase of the Boyce judgments, and their assignment to Mackintosh, Hemphill & Co., were not made until July 23d 1877, nearly a year after the sale and waiver by Boyce. Boyce had a clear legal right to waive the priority of his lien, and to sell his judgments to whomsoever he pleased, and the purchaser undoubtedly succeeded to all the legal rights of Boyce; and one of these rights was to receive the money, in court.
   The judgment of the Supreme Court was entered November 28th 1879,

Per Curiam.

The learned auditor and the court below were right, we think, in holding that the Boyce judgments were entitled to be paid according to their priority. The holders of those judgments were not bound to claim their money from the first fund produced by the sale of the debtor’s estate. If there were any equities in these appellants they should have given notice to them to make such claims; for a judgment or mortgage-creditor is not bound to know of the existence of any subsequent encumbrance. The appellants contend that Mackintosh, Hemphill & Co., who purchased the Boyce judgments, stand in a different position from what Boyce himself would have done. But we are unable to see' why that should be so, and affirm this decree upon the opinion of the learned judge below.

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


author: Mr. Justice Paxson

text:
    Matilda Montgomery's Appeal.
    1. The administrators of M., of whom his s'on was one, made a number of payments to the widow of decedent, on account of her distributive share of decedent’s estate during the years 3870 and 1871. Credits for these paymente were claimed and allowed in their second administration-account, November 18th 1872. The payments were made voluntarily, without a refunding bond or an agreement to repay. It was alleged that she was overpaid §2699.94, and the creditors of the son, one of the administrators, claimed, in 1878, to have this sum set off in the distribution of the son’s assigned estate, against §2528.83 arrearages of dower due the widow, and which was charged on said estate. Held, reversing the court below, that this could not be done, as the payment was voluntary and barred by the Statute of Limitations.
    2. AVhen an administrator pays out money.be is presumed to know the condition of the estate. The assets are in his hands and he is familiar with their amount and value. He ought to know and is chargeable with knowledge of the amount of claims against the estate when he makes a pay ment on account of a distributive share.

      November 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sxerrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 195.
    Appeal of Matilda Montgomery from the decree of the court dismissing the exceptions to and confirming the report of the auditor appointed to distribute the fund in the hands of the assignee of A. •J. Montgomery.
    On June 27th 1876, A. J. Montgomery, made a voluntary assignment of all his property to Dr. John VY. Kelly, in trust for the benefit of his creditors. Under this assignment there passed to the assignee certain tracts of land, which had been taken by Montgomery, at the valuation, under partition proceedings, in the estate of William Montgomery, deceased, charged with $5850.48, upon which annual interest was to .be paid to Matilda Montgomery, widow of said decedent, during her life. This land was sold by the assignee, under an order of the Court of Common Pleas of Washington county, discharged of liens, under the provisions of the Act of February 17th 1876. The assignee settled his final account, which was confirmed August 19th 1878, and an auditor was appointed to report distribution.
    At the first meeting of the audit, on September 19th 1878, Matilda Montgomery claimed out of the proceeds of the real estate above named, her arrearages of dower, amounting, as ascertained by the auditor, to $2528.83, the lien of which had been discharged by such sale. Her claim was objected to by certain creditors upon the ground, that in the distribution of the personal estate of the said William Montgomery, deceased, the administrators, Dr. John W. Kelly and A. J. Montgomery (the assignor), had paid the widow $2699.94 more than her distributive share, and that this should be set-off against her arrearages of dower.
    This claim of set-off arose under.the following facts: William Montgomery died on the 29th of April 1870, intestate, leaving to survive him, a widow, Matilda Montgomery, the appellant, and three children, A. J., James and William Montgomery. On the 25th of May 1870, letters of administration were granted to A. J. Montgomery, the assignor, and Dr. John W. Kelly, who, on June 15th 1870, filed an inventory of the personal estate of the decedent, which amounted to $32,183.46, and which was increased in their first settlement made July 18th 1871, to $35,051.80.
    The administrators paid Matilda Montgomery on account of her distributive share of the personal estate of the decedent, $4973.53, as follows: June 14th 1870, $50; June ,15th 1870, $285.20; July 8th 1870, $153.33; July 28th 1870, $100; November 8th 1870, $1300; January 18th 1871, $2700 ; May 6th 1871, $335, and November 11th 1871, $50. All of these payments, except the last, were made by the administrators, prior to tne settlement of their first account; and the receipts taken by them from Mrs. Montgomery, recite, “ that the sum paid is to be deducted from my share of the personal estate.” No refunding bond, or agreement to repay, was asked for, as it was then thought by the administrators that the widow’s interest would be much more than the sum paid; and in the settlement of their second account November 18th 1872, they took credit, on distribution, with the above amounts paid the widow.
    In May 1876, nearly five years after the last of the above payments, the administrators settled their final account, by which it appeared, that by reason of the debts of the intestate and large claims which they were unable to collect, they had overpaid Mrs. Montgomery on distribution $2699.94. No demand, however, was ever made by them upon her for its repayment, and no attempt was made to collect it until the first meeting of the audit, on September 19th 1878, more than six years from the date of the last payment, when the creditors claimed to have it set-off against her arrearages of dower due from A. J. Montgomery.
    Their right to this was denied by the widow, on the ground:
    1st. That the administrators who knew, or ought to have knou% the assets of the estate, voluntarily paid her this money, as a part of her distributive share of the personal estate, without any deceit or unfair practice on her part in obtaining it, and
    2d. That more than six years have elapsed from the time of such payments, and no refunding bond or receipt having been given, there could be no recovery by A. J. Montgomery, or those claiming under him, on any implied promise.
    The auditor, however, was of the opinion, that the overpayments to Matilda Montgomery were not such voluntary payments as could not be recovered back ; and that the Statute of Limitations did not begin to run, until the administrators discovered a deficiency of assets by their settlement in 1876. He, therefore found, that the amounts overpaid the widow on distribution of the personal estate in 1871, should be set-off against the arrearages of dower. Matilda Montgomery excepted to the report, but the court dismissed the exceptions and confirmed the report. From this decree this appeal was taken.

      H. J. Vankirk and John W. & A. Donnan, for appellants.
    Could A. J. Montgomery, on September 19th 1878, have recovered from the appellant, the amount she had been overpaid in the distribution of the personal estate of William Montgomery, deceased ? If he could not, then it must be conceded that neither his assignee nor creditors, claiming under the assignment, could take any higher right, and that the decision of the auditor is erroneous. The widow knew nothing as to the amount she was entitled to receive on distribution, except through the administrators; they had the means of knowing the nature and character of the assets of the estate, and of their own motion paid her $4973.53, as a part of her distributive share of her personal estate, without any agreement whatever for its repayment; and the receipts taken by them induced the belief; that she was entitled to further payments. To allow the administrators now, seven years afterwards, and after the money has all been expended, to recover it, would be inequitable and unjust, and would be extending the doctrine of implied promises further than any case yet decided: Natcher v. Natcher, 11 Wright 499; Edgar v. Shields, 1 Grant 361; Hinkle v. Eichelberger, 2 Barr 483; Lackey v. Mercer Co., 9 Id. 318; Irvine v. Hanlin, 10 S. & R. 219; Carson v. McFarland, 2 Rawle 118; Dougherty v. Snyder, 15 S. & R. 89; Boas v. Updegrove, 5 Barr 518.
    If the money was paid by mistake, as is claimed, and the law implies a promise to pay, then the right of action accrued at once, and on the next day, an action could have been brought,to recover the money paid. The Statute of Limitations would then begin to run from the date of the payment, and after six years, the right to recover would be barred: Angell on Limitations, sect. 116; Steele’s Adm’r v. Steele, 1 Casey 156; McClure v. McClure, 1 Grant 222; Gilmore v. Reed, 26 P. F. Smith 462.

      A. W. $ M. G. Aeheson and Braden $ Miller, for appellees.—
    The receipt states, that the sum of $2700 should “be deducted from my share of personal property of estate;” and it was not until within the statutory period, that it was ascertained by the further settlement, that it would be impossible to carry out this stipulation. The Statute of Limitations could only affect the contract from the time it was ascertained, that the appellant was paid her full distributive share without using this receipt.
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

It is not denied that the appellant had a valid claim for arrears of dower charged upon the real estate of A. J. Montgomery, the assignor. The auditor finds the amount of it to be $2528.83. He declined to award it to her, however, for the reason that the appellant is indebted to the assignor in the sum of $2699.94, being the amount overpaid her on the distribution account of the administrators of the estate of William Montgomery, deceased. The court below sustained the auditor in this ruling, and it forms the single subject of the three assignments of error.

It appears that the administrators of William Montgomery, deceased, of whom A. J. Montgomery, the assignor, was one, made ■a number of payments to the appellee as widow of the decedent on account of her distributive share during the years 1870 and. 1871. Credits for these payments were claimed and allowed in their second administration account, filed November 18th 1872. The payments were made voluntarily, without a refunding bond or an agreement to repay. It is now alleged she was overpaid the said sum of $2699.94, and the creditors of A. J. Montgomery, one of said administrators, claim to have it set off in the distribution of his assigned estate.

Without discussing the right of the creditors to make such a set-off, it must fail, for the’ reason that A. J. Montgomery could not himself recover the money back. The payment was voluntary, and it is barred by the Statute of Limitations. That the payment was voluntary is settled by Edgar v. Shields, 1 Grant 361; Carson v. McFarland, 2 Rawle 118: Hinkle v. Eichelberger, 2 Barr 483; Natcher v. Natcher, 11 Wright 496. That some of the payments at least were made after the expiration of a year from the granting of the letters of administration we do not regard as material, as a payment by the administrator even then without a refunding bond or an agreement to repay was voluntary. The auditor and the court below were of opinion, however, that the statute did not begin to run until the time the over-payment was discovered, to wit: in 1876. But when an administrator pays out money, he is presumed to know the condition of the estáte. The assets are in his hands, and he is familiar with their amount and value. He ought to know, and is chargeable with knowledge, of the amount of claims against the estate when he makes a payment on account of a distributive share. It would be a great hardship upon distributees, to Avhom an administrator has voluntarily made payments on account of their shares, if they may be called upon for repayment after the lapse of years. They may have spent it, or increased their style of living in entire good faith, and in ignorance of any over-payment. We are of opinion that the statute commences to run against the administrator from the time of such payments.

The decree is reversed at the costs of the appellees, and it is ordered that distribution be made in accordance With this opinion.


text:
    Wilson et al. versus Gaston et al.
    1. The probate of a will by the register is a judicial decree which cannot be impeached collaterally in an action of ejectment brought in the right of the heir-at-law to recover veal estate devised by said will. ¡
    2. A will can now only be contested in the manner prescribed by the Act of April 22d 1856; that is, “by caveat and action at law duly pursued,” which restricts the contestant to proceedings in the Registers’ Office and an issue devisaoit vel non directed by the Orphans’ Court.
    3. The dictum of Woodward, J., in Kenyon v. Stewart, 8 Wright 179, reviewed and dissented from.
    November 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 84.
    Ejectment by Samuel Wilson and others against Alexander Gaston and others, for a tract of seventy-one acres of land.
    The facts are sufficiently stated in the opinion of this court.

      D. F. Patterson and L. McCarreTl, for plaintiffs in error.
    The law as to the conclusiveness of the probate of a will affecting realty as it existed prior to October 1st 1856, was well settled. Successive actions of ejectment, and two concurring verdicts, were conceded, by long established practice in this state, “ as the right of every one litigating a claim to an estate in lands, without reference to the peculiar form of his title,” whether he claimed by deed, will or otherwise; and regardless of the fact that the will under which he claimed had been found valid on the trial of an issue devisavit vel.non: Holliday v. Ward, 7 Harris 485, 490, or had been condemned by the register who refused to admit it to probate : Smith v. Bonsall, 5 Rawle 80; Rowland v. Evans, 6 Barr 435. Was this well-settled and long-recognised right swept away by the seventh section of the Act of April 22d 1856 ?. A similar effect was claimed in Rowland v. Evans, supra, to have been worked by the seventeenth section of the Act of March 15th 1872; wherein Lowrie, P. J., in the court below, construed a probate, as a judicial. decree, conclusive upon the title of real estate unless reversed by appeal directly attacking it. This judgment was reversed by this court, Bell, J., delivering the opinion, in which, inter alia, he said : “ The absence of an express declaration to such effect, in the statute itself, is an impressive though silent admonition that no change in principle was intended. The introduction of the principle proposed would be of the gravest importance in its effect upon titles to real estate, derived from testamentary disposition or by descent, and the long-established mode of ascertaining them, by substituting a decree of a'subordinate officer, or, at best, the verdict of a single jury, for successive actions of ejectment and two concurring verdicts, conceded by the law of this state as the right of every one litigating a claim to an estate in lands, without reference to the peculiar form of his title.”
    No point presented or question raised, in any case within our knowledge, indicates that any lawyer or judge has regarded the seventh section of the Act 22d April 1856, as in any way impairing this right, which a line of decisions, commencing as early as 1774, established “as the undoubted law of Pennsylvania.”
    In the face of Rowland v. Evans, supra, can it be that the legislature intended, by the seventh section of the Act 22d April 1856, to make by implication the very changes which this court had explicitly declared could not be so made ? There is nothing in the act itself to indicate that its authors designed to introduce any new remedy, or to confine any one interested to contest a will to any exclusive remedy. No new remedy was created or existing remedy destroyed by any section of the act, except the ninth section, and it exhibits the pains taken by the authors of the act to set forth fully, clearly and. in detail, the changes intended to be made. They were preparing a law “ for the greater certainty of title and more secure enjoyment of real estate,” and, after making several important provisions in which no remedies were changed but only the time of their application limited, they came to the subject of the probate of wills; they considered that an unrevoked probate was conclusive as to a bequest of personalty, whereas, with respect to realty, there was no limit to the time within which a person disposed to litigation might unsettle the title or disturb the enjoyment of the devisee. Here was a mischief similar in character to those provided against in former sections, and a similar remedy was demanded, viz.: not the destruction of existing forms of procedure and the creation of new ones, hut the limitation within a definite period of the application of existing remedies.
    In Kenyon v. Stewart, 8 Wright 179, Woodward J., referring to the section in controversy, says : “ The main purpose of this section was to give the probate of wills, after five years, the same conclusive effect as to real estate, which it has always possessed in England and here, as to personal goods. Though held to be prima facie evidence of title, the probate with us has been open to contest indefinitely, or at least for any time short of the period at which the common law would set up a conclusive presumption in its favor. This was the mischief the statute was intended to remedy. Innumerable titles throughout the state depended, and always will depend, on the probate of wills. That probate, the foundation of so many titles, we treat as a judicial decree, and the legislature here thought there ought to be a time when it should be no longer questionable. * * * It plainly declares that the uncontested probate shall be conclusive after five years from its date.” The court then proceeds to say that the word “ caveat ” in the section is inaccurately used, “but the other words, ‘action at law,’ are sensible and mean an ejectment, as in this case, or any proceeding where the issue is devisavit vel non.

    The contest over Rachel Dougherty’s will is found in Vernon v. Kirk, 6 Casey 218, and Kirk v. Carr, 4 P. F. Smith 285. An examination of these two cases reveals the fact that precisely the same questions were tried in the latter, on an ejectment, as had been previously tried in the former, on an issue directed by the register’s court; and, further, that the latter action was a second action of ejectment. Here was the case of a probate which was controverted on an issue devisavit vel non and in two actions of ejectment, and both ejectments must have been tried after 1856. In Kenyon v. Stewart, supra, Warfield v. Fox, 3 P. F. Smith 382; Folmar’s Appeal, 18 Id. 482; Stewart v. Austin, 9 Phila. 141, the seventh section of the bill was simply treated as a Statute of Limitation. In no case was the section considered as limiting the contest of a probate to one proceeding in the Orphans’ Court or to a single action of ejectment. Every case has been ruled upon the question of time and not one upon the failure of the remedy. Our contention, then, is, that actions of ejectment for lands affected by the probate of wills have been tried without question after direct attacks on the probate had failed, and in none of which the probate was held to be conclusive except when it had stood unassailed for the full statutory period; that the rule of evidence making an unassailed probate conclusive after five years, has no application to a case where, within five years, a caveat has been filed or appeal from the probate entered or action of ejectment brought, or any recognised mode of contest instituted, having for its object the setting aside of the will, providing such proceeding, whichever it may be, shall have been duly pursued; and that a party who brings his action of ejectment, as heir at law, to recover his share of lands devised to another by will, within five years after the probate of such will, stands on the same footing as to his remedies which a similar character of plaintiff occupied prior to October 1st 1856, and retains unimpared his right to successive actions of ejectment and two concurring verdicts.

      John W. £ A. Donnan and A. W. M. C. Acheson, for defendant in error.
    At common law there was no such thing as a probate of a will of real estate. Such will was liable to be disputed whenever and as often as it was set up in any judicial proceeding as evidence of title, and, whether the trial was at law or in chancery, nothing was*established except for the purposes of the particular case between the parties litigant. This arose from the fact that the ecclesiastical court had no jurisdiction over a devise of realty. But where the will related to land and goods, and so was a mixed will, the probate was made simply and only that the personal estate might be administered. Such probate was not allowed to prejudice the heir at law, and it ivas not evidence at common law in any suit involving the title to the land.
    Our Act of 1705 established the office of register general and the appointment of deputies for the several counties with power “to take probate of wills and granting administrations.” Next followed the Act of 1832, directing that the register shall have jurisdiction “of the probate of wills and testaments, of the granting of letters testamentary, and of administration.”
    Our courts early decided that the jurisdiction of the register under these acts related exclusively to administering the personal estate and did not effect realty or in anywise conclude the rights of the heirs-at-law as respected devised lands, and hence a decree of the register’s court after a trial by jury on an issue devisavit vel non did not disturb the rights of the heir. The only effect given to the probate was to make it prima facie evidence, and that of the weakest kind.
    Bo the law stood prior to the Act of 1856, not, however, without persistent effort to change it by judicial interpretation, upon the ground that the register, being a judicial officer, his decrees upon matters within his jurisdiction could not be collaterally impeached : Rowland v. Evans, supra; Shields’s Appeal, 8 Harris 291; Asay v. Hoover, 5 Barr 31, in which latter case the heir-at-law, claiming that the verdict and judgment against the will in the feigned issue were conclusive, was answered by Bell, J., that the decision of the register refusing the probate of the will, and the verdict of the jury condemning it, were absolute only as to the personal estate, that this had grown to be a settled rule of property, not to be disturbed by judicial interference without danger of disastrous results. But he adds, “ if it be desirable to have it changed, it can only be safely done by legislative interposition, looking to a prospective alteration, Avithout meddling Avith vested interests acquired and held under a Avell-ascertained principle of the law of estates.”
    The relief thus suggested is embraced in the Act of 1856. The mischief to be remedied was in the clashing of jurisdictions, by Avhich judicial decrees were collaterally overturned and the harmony of the law disturbed. By one tribunal, to which the probate is exclusively intrusted, the testator is adjudged to have been sane, his will legally executed and free from all fraud: by another tribunal, having no jurisdiction over the probate, the testator is pronounced to have been insane, his will not legally executed or made under undue influence. Thus on the one hand ‘the laAV sustained the Avill and ordered it to be carried into effect, whilst on the other it decreed it to be invalid and set'it aside. The expansion of the register’" jurisdiction to realty making the probate as to it equally conclusive as it is to personalty, after five years, brings into exercise the common recognised rule that the judgment of a court of competent jurisdiction cannot be inquired into collaterally. The probate by the register of any will devising real estate shall be conclusive as to such realty, 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. In legal acceptation a caveat antedates the probate, its ofiice being to arrest the proof of the will; but manifestly the word caveat is here used in a different and broader sense. By “ caveat” is meant an objection to or a complaint against the probate of the will. By action at law is meant an appeal and issue clevisavit vel non. By no rule of interpretation can the word “ caveat” be eliminated from the act as senseless and devoid of all meaning, because in some cases a “ caveat,” in the strict sense of the word, will not apply, as where the contest begins after the probate -has been made without opposition or notice.
    “ Caveat and action at law duly pursued,” indicate the Orphans’ Court as the forum in which the parties interested to controvert the will shall make their contest, and there is to be but one contest— not actions at law, but one action — founded upon one complaint in the nature of a caveat, to be brought in the tribunal having jurisdiction of the probate, within five years from its date.
    In passing the Act of 1856, whereby the probate of a will devising real estate is made conclusive upon all parties unless contested within five years, the legislature evidently looked upon a will controversy as differing essentially from an ordinary dispute arising upon conflicting titles, and the act was designed to mould the controversy so as to make the will effective or ineffective as to real as well as personal estate, so that a man should be adjudged to die testate or intestate, accordingly as his will might be sustained or overthrown in a single contest in that forum to which the law intrusted the probate of every man’s will.
    The case of Kenyon v. Stewart, 8 Wright 179, is relied on by the plaintiffs’ counsel as establishing a different rule, and great stress is laid upon the remarks of Woodward, J., as to the purpose of this section. In that case the point was whether the act applied to probates made before its passage. No case has been cited where 'an ejectment has been sustained in the face of a will duly probated.
    The rule deduced from the authorities by the learned plaintiffs in error is, that any proceeding by caveat, or action at law, duly pursued within five years, having for its object the setting aside of a will, destroys the conclusive character of the probate, and leaves unimpaired the right to successive actions of ejectment as it existed prior to October 1st 1856. That this is not the proper construction to be placed upon this section has been determined, we think, by this court, in the cases of Dean v. Bolton, No. 155, October and November Term 1870, and Little v. Owens, No. 119 October and November Term 1873, not reported.
    We differ with the learned counsel for the plaintiffs in error respecting the views entertained by the profession at large. The assertion that it is the general understanding since the Act of April 22d 1856, that the heir at law has an unimpaired right to successive actions of ejectment and two concurring verdicts, is incorrect. Dean v. Bolton and Little v. Owens, already referred to, show the contrary; and in the Robinson Will Case, lately tried before his Honor Judge McKennan in the U. S. Circuit Court, a masterly argument was made by George P. Hamilton, Esq., to prove that since the Act of 1856, the contest in a disputed will case must be carried on in the Orphans’ Court, and the rights of all parties are concluded by one trial and judgment. The family difficulty in this case was settled before the court rendered its opinion.
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1880.

The plaintiffs, in the ejectment now being tried, claim under Margaret Wilson, one of the heirs at law of Andrew Wilson, who died July 1st 1876, seised of the land in dispute. The defendants, on the other hand, claim as devisees under the will of the said Andrew Wilson. This will was admitted to probate July 7th 1876; from this action of the register an appeal was taken to the Orphans’ Court by Margaret Wilson, who thereupon presented her petition to that court praying an issue to the Common Pleas to determine: 1. Whether the alleged testator was, at the time of the execution of the alleged testament, possessed of a disposing mind and memory; 2. Whether he was subjected to undue influence ; and '3. Whether he wms prevented by the extremity of his last sickness from signing the paper himself, and whether it was properly signed for him. To this petition an answer was filed; an examiner was appointed, and testimony taken. The Orphans’ Court, after hearing, refused the prayer for an issue and dismissed the appeal. The case was then carried up to the Supreme Court where the decree was affirmed.

On trial of the ejectment now' under consideration, which was brought to March Term 1878, after the defendants had put in evidence the will above mentioned, the plaintiffs offered to prove the same matters proposed in the petition of Margaret Wilson to the Orphans’ Court, that is to say, the testator’s want of testamentary capacity; the fact of undue influence and the want of a proper execution of the alleged testamentary writing. To this offer the defendants objected, for the reasons following: “1. That the probate was a judicial act which cannot be impeached collaterally as proposed; 2. That Margaret Wilson having appealed and requested an issue to determine the testator’s testamentary capacity, the charge of undue influence, and the due execution of the will, which appeal was dismissed, &c., the plaintiffs claiming under her are ■ conclusively estopped in this action by virtue of the Act of 22d April 1856; 3. That the evidence is incompetent.”

This objection was sustained by the court. The offer was then renewed, with an offer to prove that a caveat had been filed in the register’s office giving warning, inter alia, of this action of ejectment. This offer was also overruled and a verdict taken for the defendants.

There is no doubt but that previously to the Act of April 22d 1856, the rejection of these offers -would have been erroneous, for before the passage of that act the sentence of the register admitting a will to probate, the decree of the register’s court and the verdict of a jury on an issue devisávit vel non, were conclusive only as to the disposition of the testator’s personal estate. The probate as to realty was but prima facie evidence of the execution of the will and of the testator’s testamentary competency: Rowland v. Evans, 6 Barr 435. Our task then involves the construction of this Act of 1856. Under this act has the register’s sentence of probate the same conclusiveness upon a devise of realty as it has upon a bequest of personalty ? Does it now occupy the position of a judicial decree that cannot be impeached collaterally ? Or does it remain open to attack as formerly, direct or collateral, for the period of five years, and does the act only operate as a Statute of Limitation which puts an end to all inquiry as to a testamentary devise after the expiration of the statutory period ?

The act is badly worded and hence difficult of comprehension. It reads : “ That the probate by the register of the proper county of any will devising real estate, shall be conclusive as to such realty, 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 first part of this section is clear and unambiguous; the action of the register “ shall be conclusive;” and it shall have all the force of a judicial decree, but the trouble comes with what follows ; that is almost unintelligable. There can be no caveat after probate, neither can the official act of the register be affected by an “ action at law.” Nevertheless, the framer of the statute must surely have meant something by the words, “caveat” and “action at law,” and we must determine what he did intend by their use. In order to solve this enigma we must ascertain, if we can, what previous defect in our laws this statute was designed to remedy. As we have already seen, under the Act of 1832 and those which preceded it, the probate of a will as to realty amounted to nothing, if we except its mere prima facie character ns evidence.; hence, it was open to attack from all quarters and at all times. Any number of suits might be instituted, and in each and every one of them the will might be controverted; it might be sustained to-day and overthrown to-morrow. No one could depend absolutely upon a title which involved a will, for no length of time could make such title secure. Here then was an evil, and a very serious one, and one which, we doubt not, the Act of 1856 was intended to remedy. But the question recurs when does this remedy become operative? Say the counsel for the plaintiffs, not until the end of five years, and the dictum of Mr. Justice Woodward in Kenyon v. Stewart, 8 Wright 179, is cited in support of that allegation, and it is undoubtedly in point, for that learned justice asserts not only that the word “ caveat ” in the Act of 1856 is inaccurately used, but that the words “actions at law.” mean an ejectment or any proceeding where the issue is devisavitvel non. We must remember, however, that the case he was considering required no construction of the act, since the only question was whether it applied to wills proved before its passage, and whether as to them it was constitutional. We are, indeed, quite sure that that eminent jurist did not give this question that careful consideration which he would have done had it been the point in that case. He says : “ That probate, the foundation of so many titles, we treat as a judicial decree, and the legislature thought there ought to be a time when it should be no longer questionable;” if, however, that probate was treated as a judicial decree, how could it be impeached in a collateral action ? Herein is found the inaccuracy of the above statement in that, before thq Act of 1856, it was not treated as a judicial decree except as to personal property. Judge Lowrie, in the case of Rowland v. Evans, held, that under the Act of 1832, the probate of a will even as to realty must be treated as a judicial decree, and hence, could not be collaterally attacked ; but for so holding he was reversed. Mr. Justice Bell, who delivered the opinion of this court, admits that the register is a judicial functionary, and that his decrees, within certain limits, are conclusive until reversed on appeal, and that it does appear somewhat anomalous to ascribe a binding efficacy to one act of probate which is denied to another, or to accord different degrees of stringency to the same probate, nevertheless, the old rule derived from the common law was held to be still in force, because the act did not, in express terms, alter that rule or make the probate as efficacious in devises of realty as in bequests of personalty.

But the Act of 1856 does, in express terms, make the probate of a will devising real estate conclusive as to such realty; not at the end of five years, but unless some one interested shall within five years contest its validity. True it is, if the validity thereof can be contested in any kind of collateral proceeding, involving the will, instituted within that period, the act of the register partakes no more, practically, of the nature of a judicial decree than it ever did, and we may well say that the probate is conclusive only after the end of the five years. Thus, instead of having a' new power conferred upon the register, and a new efficacy given to his act, we have but a limitation of the time within which the title of the devisee may be attacked. Yet, clearly, this is not the intention of the act, as appears, not only from the defect in the old law which it was intended to remedy, but from its language. The probate of the register shall be conclusive “as to such realty;” without more there could not be one particle of doubt as to the meaning of this statute; the doubt only begins when we come to the means prescribed for contesting the will. The framer of the act knew that it would not do to make the probate absolutely conclusive of the execution of the will; that some time must be given within which to contest that execution, but he evidently was not acquainted with the legal forms necessary to reach that end. This is evident from the manner in which he has used the word “caveat,” and also from the manner in which he has connected it with the words “and action at law.” He evidently regarded a caveat as a means or process for contesting a will, and an action or issue at law as a continuation thereof. Taking this view of the matter,' and it is the only one that can be adopted without the rejection of a word which was evidently deemed material by the framer of the act, and the difficulty is of easy solution. Thus the caveat will then mean the initiatory process, or notice preceding a contest before the register, and the action at law an issue triable in the Common Pleas, directed by the Orphans’ Court, after an appeal thereto from the decree of the register, and this appeal may be taken, in the ordinary form, at any time within five years. It is true we might substitute “or” for “and,” and in this manner make the word “caveat” stand for the whole process before the register and Orphans’ Court; and the words “action at law” for any collateral issue involving the validity of the will. This, however, is a use of these words which is less direct and natural than that we have given; moreover it perpetuates a doctrine always regarded as anomolous, and as antagonizing the rule, now universally recognised, that a judicial judgment or decree may not be collaterally attacked except for fraud.

Judgment affirmed.

Justice MurCur dissented, as the Act of 1856 is intended as one of limitation only.