author: by Sharswoo», J.

text:
    Geyer et al. versus Wentzel et al.

    1. Words in the introductory or other parts of a will indicating an intention of the testator to dispose of his whole estate, although not conclusive that he intends to pass a fee, are always laid hold of in favor of such construction.
    2. A will, in German, was, “ I make over to my wife my entire movable and immovable property as long as she lives, with this condition, that she shall in her lifetime sell, &c., to no other person, and neither my brothers or sisters or other relations shall have any part therein, and it is my will that my wife after my death all my property, it may have name as it will, shall come into her hands.” Held, that the wife took a fee.
    3. The mere fact that an express estate for life in the same subject had. been limited to the same person, is not sufficient to prevent the subsequent words from carrying the fee.

      March 6th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Berks county: Of January Term 1871, No. 450.
    This was an amicable action of ejectment for a tavern and five acres of land, in Alsace township, Berks county, in which John Geyer and others, heirs at law of Henry Geyer, deceased, were plaintiffs, and Samuel B. Wentzel, executor, &c., of Sabilla Geyer, deceased, and Albert Schmeck and others, devisees under the will of the said Sabilla Geyer, were defendants.
    The action was commenced March 28d 1869, by filing the agreement for the action, and a case stated.
    The facts set out in the case were:—
    Henry Geyer died in 1887, without issue, leaving his wife Sabilla Geyer to survive him, and brothers and sisters; seised of the premises in controversy and possessed of personal property. He left a will, proved September 16th 1837, written in the German language. A correct translation of the clause giving rise to this controversy, is as follows :—
    “ And that which appertains to my worldly goods and effects consisting of a tavern-house and outbuildings, together with five acres of land, situate in Elsass (Alsace) township, Berks county, state of Pennsylvania, it is my will, and I make over to my beloved wife Sabilla my entire movable and immovable property so long as she lives, yet with this condition, that she shall in her lifetime sell or write over to no other person, and neither my brothers and sisters or other relations shall have any part or participation therein, and further it is my will that my beloved wife Sabilla, after my death all my property it may have name as it will shall come into her hands and lastly I constitute and appoint herewith my beloved wife Sabilla as the carrier-out (executrix) of this my last will and testament and further, it is my will that all the before-mentioned contained in this testament shall be fulfilled after my death."
    SabillaJGeyer died in February 1867, having made her will, proved February 18th in the same year; Samuel Wentzel being appointed the executor, and the other defendants being the devisees and legatees under the will. The plaintiffs are the heirs at law of Henry Geyer, deceased.
    The question submitted by the case for the determination of the court was, whether the said Sabilla Geyer took an estate in fee under the will of the said Henry Geyer, in the real and personal property of the said deceased, or a less estate. If the court be of the opinion that she took a less estate, then judgment to be entered for the plaintiffs generally. If the court be of the opinion that she took an estate in fee, then judgment to be entered for the defendants generally.

      March 20th 1871,
    The court (Woodward, P. J.) entered judgment for the defendants, which was assigned for error on the removal of the case to the Supreme Court by the plaintiffs.

      J. M. Linn and W. 0. Lawson (with whom was H. A. Yundt), for plaintiff in error,
    cited Mutter’s Est., 2 Wright 314; Roberts v. Riffin, Barnardiston R. 261; Hogan v. Jackson, Cowp. R. 299; Brown v. Boyd, 9 W. & S. 123; Harper v. Blean, 3 Watts 471; Silknitter’s Appeal, 9 Wright 365; Fisher v. Herbell, 7 W. & S. 63; Second Ref. Presb. Ch. v. Disbrow, 2 P. F. Smith 223; Culbertson v. Daly, 7 W. & S. 195; Busby v. Busby, 1 Dall. 226; French v. McIlhenny, 2 Binn. 19; Wheaton v. Andrews, 23 Wend. 452; Goodright v. Barron, 11 East 220.

      Gr. F. Baer (with whom were J). Frmentrout, A. S. Sassman and F. Shatter), for defendants in error,
    referred to Wills Act, April 8th 1833, § 9, Pamph. L. 249, Purd. 1017, pi. 10; Still v. Spear, 9 Wright 170; Redfield on Wills 428, 429, 435, 436; Culbertson v. Daly, 7 W. & S. 195; Wood v. Hills, 7 Harris 515; Schriver v. Meyer, Id. 91; Newbold v. Boone, 2 P. F. Smith 171; German v. German, 3 Casey 116 ; Stickle’s Appeal, 5 Id. 234; Mutter’s Est., 2 Wright 314; Stehman v. Stehman, 1 Watts 466; Morrison v. Semple, 6 Binn. 98; Doughty v. Browne, 4 Yeates 179; Jauretche v. Proctor, 12 Wright 466; Amelia Smith’s Appeal, 11 Harris 11; Rewalt v. Ulrich, Id. 388; Foster v. Stewart, 6 Id. 24; Dice v. Sheffer, 3 W. & S. 419; Hogan v. Jackson, 1 Cowper R. 299; Ridout v. Paine, 3 Atk. 486; Harper v. Blean, 3 Watts 471.
   The opinion of the court was delivered,

by Sharswoo», J.

Besides that the will of Henry Geyer is an instrument inartificially drawn, we have to labor to reach its meaning through the medium of a translation, which, as is well remarked by Cervantes, is like the wrong side of tapestry, where though we can distinguish the figures, they are confused and obscured by ends and threads. It is, however, sufficiently clear, taking the whole will together, that the testator meant to dispose of all his property — not to die intestate as to any part of it. He introduces the clause of disposition with the words, “ and what concern my worldly property,” and ends it with “all my pro■perty, it may have name as it will.” In the original the same word is used in both these places, as well as elsewhere. It is derived from a root signifying “ to be able,” and in its general sense is used as we use “wealth, riches, fortune.” It may, therefore, be very well translated “property.” The testator appears to have supposed, and for all that appears rightly, that all the “movables and immovables” he owned, were at and about his tavern-stand, and the five acres of land connected therewith. Nevertheless, his entire fortune there — his fee simple in the immovables, and his absolute property in the movables — he meant to dispose of. There is not a word from the beginning to the end which militates against this view. This, to be sure, is never a conclusive argument in favor of the construction which passes the fee, but the courts have invariably laid hold of introductory or other words indicating such an intention as they do, of every other circumstance in a will which may help to guide their judgment to the true construction of it.

The testator here having given an express estate for life to his wife, in his “entire movable and immovable property,” with a condition in restraint of her power of alienation during her life, and a declaration that neither his brothers and sisters, or other relations, shall have any part or participation “therein” — that is, grammatically, “in his movable and immovable property” — adds this, it will be observed, expressly by way of further disposition: “ And further, it is my will that my beloved wife Sybilla, after my death, all my property it may have name as it will, shall come into her hands.” It is certainly a well-established canon of construction that effect is to be given to every word of a testator if it can be, consistently with the general scope and intention. It is not easy to attribute any operation to these words, unless it be to carry to the devisee named all that remained undisposed of by the previous clause in the will. If it had been to another person than to the devisee for life, there would not be a loop to hang a doubt upon. It cannot refer to any other subject-matter — other lands or goods not before mentioned — for, as we have seen, the “ entire movable and immovable property” had been before given. If it does not mean some remaining interest in that property, it means nothing. The expression “shall come into her hands,” evidently intends full ownership. It cannot signify mere possession, for the prior gift of the life estate to the wife had secured that. Both German and English lexicographers-concur in giving power, control or ownership as one of the meanings of the word “ hand,” especially in the plural. “ Behold, as the clay is in the potter’s hand, so are ye in mine hand, 0 house of IsraelJer. xviii. 6. The word “ mortmain” — mortua manu — is a striking illustration of it. The Germans have the same law term translated into their language, “ die todte hand.” Indeed, it seems quite plain that the testator had this very interest after the life estate in his mind, and being at a loss what to call it — reversion, residue or remainder at the time of making the will, it could not be — he therefore added, literally translated, “ it may have name as it will;” as if he had said, I have already given all my movable and immovable property to my wife as long as she lives, and so that she cannot alienate it during that time, now all that remains, whatever you may call it in law, that I also give to her.” Judging from the use of the word “vermoegen” in this will alone, I should certainly have no difficulty in considering it as equivalent to “ estate” in English, and to refer not to the things movable or immovable, land or goods, which constitute the subject-matter of property, but to the interest or right of the proprietor in them. Supposing this, however, not to be so, we have the rule of construction prescribed to us by the legislature, in the 9th section of the Act of April 8th 1833, Pamph. L. 250: “ All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.”

Is then the mere fact that an express estate for life in the same subject-matter had been previously limited to the same person, a sufficient indication of intention to prevent the subsequent words from carrying the fee ? “ It would be going a great way indeed,” said Lord Mansfield, “to lay it down as a general rule, that when a particular estate is given to a person in one part of a will, and the testator afterwards devises to him in more general words, that he shall not reap any benefit of such residuary devise. Indeed, as to this objection, the case of Ridout v. Paine, 3 Atk. 486, is exactly in point:” Hogan v. Jackson, Cowp. 299. To the same effect are our own cases of Harper v. Bean, 3 Watts 471, and Brown v. Boyd, 9 W. & S. 123.

Judgment affirmed.


source: Caselaw Access Project

author: by Read, J.

license: Public Domain

text:
    Lauman’s Appeal.
    1. A debtor to a bank for an over-draft, transferred stock at a fair price “ in payment” of the debt “ subject to bis right of redemption in two years,” and was paid by the bank the difference between the stock and his debt. Held, that this was a sale of the stock and could not be redeemed after two years.
    2. The over-draft was not a loan, but a debt created by the debtor’s unauthorized act.
    March 6th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Berks county: In Equity: No. 390, to January Term 1869.
    In this case a bill was filed, December 26th 1867, by George M. Lauman and Josephine F. his wife, in her right, against The Farmers’ Bank of Reading and others. •
    The bill, amongst other things, alleged that Mrs. Lauman was the equitable owner of twenty-four shares of the stock of the Reading Water Company, that George M. Lauman owed the bank $1656.12, and that for the purpose of securing the bank his wife agreed that the stock should be transferred to the bank with the condition that it should be retransferred to her when the money should be paid, and the transfer was accordingly made March 17th 1858; that on the 18th of January 1864 Lauman tendered to the bank $2300, being the full amount of debt and interest, and demanded a retransfer which was refused.
    The prayers were for a transfer of the stock to Mrs. Lauman on the payment of Lauman’s debt, for account of dividends, &c., and for further relief.
    The bank answered, denying that Mrs. Lauman owned the stock, averred that there was an absolute sale and transfer of it to them in payment of Lauman’s debt, and denied that there was any condition that it should be retransferred on the payment of Lauman’s debt and interest; they averred that after deducting the amount of Lauman’s debt, there was a balance of $23.88 due to him which was paid to him. They admitted the tender, as set forth in the bill, and refusal because there had been an absolute sale of the stock to the bank. The evidence was that this stock had always stood in Lauman’s name until the transfer to the bank, and not in his wife’s name.
    The other facts material to the case appear in the opinion of Mr. Justice Read.
    The court (Woodward, P. J.) dismissed the bill.
    The plaintiffs appealed, and assigned the dismissal of their bill for error.

      Gf. F. Baer and Gf. B. Budd, for appellants.'
    Lauman’s contract was a pledge: Story on Bailments, § 286 et seq.; 2 Kent 577. Although the pledge may not be redeemed by the time limited, yet it retains the character of the pledge still: Wood v. Dudley, 8 Verm. 435; Solomon v. Wilson, 1 Whart. 244. By the common law the pledge if not redeemed by the stipulated time, did not then become the absolute property of the pledgee, but he was obliged to have recourse to process of law to sell it, and until that was done the pledgor could redeem: Cortelyou v. Lansing, 2 Caine’s Cas. 200; 2 Kent 581; Story on Bailments, § 346. Now the pledgee may sell upon reasonable notice to the debtor to redeem, and of the time and place of sale, which must be by public vendue: Diller v. Brubaker, 2 P. F. Smith 498; Sitgreaves v. Bank, 13 Wright 364; Conyngham’s Appeal, 7 P. F. Smith 474; Davis v. Funk, 3 Wright 243; Story’s Eq. Jur., § 1009; Story on Bailments, §§ 318, 345; McAllister’s Appeal, 9 P. F. Smith 204. Prescription or the Statute of Limitations does not run against a pledge: Story on Bailments, § 346; Kemp
      v. Westbrook, 1 Ves. Sr. 278; Slaymaker v. Wilson, 1 Penna. R. 219; Story’s Eq. Jur., § 1520.
    March 20th 1871,

      F. Leaf Smith and S. W. Smith, for appellees.
    Equity follows the analogy of the Statute of Limitations: Todd’s Appeal, 12 Harris 429; Waterman v. Brown, 7 Casey 161. In De Lisle v. Priestman, 1 Brown 186, the principle is decided that when stock was pledged for a fixed period of time, and a sale made after the time, there could be no recovery. Equity will not suffer a party to lie by until there is a certainty of profit one way, and without loss any way: Hollingsworth v. Fry, 4 Dall. 345; Stoever v. Stoever, 9 S. & R. 450.
   The opinion of the court was delivered,

by Read, J.

George M. Lauman had an account with the Farmers’ Bank of Reading, and on the 6th of January 1858 he overdrew his account $1656.12. The attention of the cashier (Dr. Muhlenberg) was drawn to this overdraft about the middle of March 1858, and he sent word to Major Lauman to come to the bank, and that this thing must be arranged. He came on the 17th of March 1858 and said he had no ready money, but offered twenty-four shares, of water stock in payment of this overdraft. There was about two and a half months’ interest then due on the overdraft.

“The last public sales of the stock,” says Dr. Muhlenberg, “ had brought $68 a share, twenty-four shares at sixty-eight would not pay principal, much less principal and interest, so I offered to allow him $70 a share for it, which would pay the principal and a trifle over. I said I would make no claim for interest — I would throw that off. He agreed to that offer of mine, and went out to have the stock transferred to the bank. That closed the transaction between us. In about a half an hour or an hour he returned with the certificates in an envelope; he brought his bank-book and asked me to give him credit for $1680, which I did; then he asked me to have his bank-book settled.

“ When he returned, the certificates showed that the stock had been transferred to the Farmers’ Bank of Reading. When he asked to have his bank-book settled I told him we could not settle it immediately, but would settle it as soon as we had time. The book was settled on the 24th of March 1858, and showed a balance in his favor — cash balance of $23.88. He drew this balance out some time in April 1858. Lauman’s bank account shows a credit given him on March 22d — ‘ shares water stock at $70, $1680’ — and that it was settled on March 24th with a balance in his favor of $23.88.

“ When Mr. Lauman returned and handed me the certificates and bank-book he sat down and began to talk; he said he still held one share of this water stock for the purpose of acting as a director in the company; the water company I mean; and that he parted with this stock with great reluctance. I said to him, If he thought he could raise the money in a reasonable time we would give him a chance to get it back again. He said he thought he could raise the money in the course of a couple of years. I agreed I would hold it for that time, and not sell it to any one else in the mean time. I made a memorandum to that effect on the envelope containing the certificates, as follows: ‘March 17th 1858 (158) receipt given for twenty-four shares transferred to cover overdraft for $1656.12, and agree to retransfer on payment of that sum in two years.’

“I gave him a receipt in substance corresponding with this memorandum. The transaction was closed when Lauman went to make the transfer. The subsequent conversation and receipt was an entirely different matter, when he came back and made a long face and complained.”

The receipt is in these words:—

“ Farmers’ Bank of Reading, March 17th 1858, received of George M. Lauman, Esq., a transfer of twenty-four shares of water stock in payment of an overdraft of his account, amounting to $1656.12, subject to his right of redemption within two years.

“H. Muhlenberg, Cashier.”

The bank on the 1st of May 1861 sold and transferred to Charles Kepler, two of these shares of water stock, and on the 22d of December 1868 the remaining twenty-two shares to Isaac Eckert.

On the 18th of January 1864, J. Glaney Jones, Esq., tendered to the bank $2300, in legal tender notes, to redeem these twenty-four shares, which tender was refused.

These are all the material facts necessary for a decision. The position of the plaintiffs is, that the transfer was in fact and in law a security, and that the transaction between the bank and Lauman was a contract of pledge or pawn.

These assertions must mean either that the transfer was a mere conveyance of the title upon condition, or that it was a mere deposit redeemable upon certain terms. Now it is clear it was a payment of the overdraft or debt due the bank, not with money which the debtor had not, but with stock taken at a fixed price, and treated as cash by both parties. It was in fact a sale of the stock to the bank to pay a debt, which it did. It was not a mortgage, and it was not a pledge, pawn or deposit. “ The rule,” says Judge Agnew, in Spering’s Appeal, 10 P. F. Smith 210, “which prevents the conversion of a security for a loan into a sale is intended for the protection of the needy debtor against the rapacity of a merciless creditor. But this never can be the case where the transaction partakes not of the character of a loan, and the sale is for a fair price.” This describes the present case, which never was a loan, but a debt created by the unauthorized act of the debtor, which was paid by the sale to the creditor of the stock at a fair price. Then comes the second part of the transaction which does not affect the sale or the payment, and the language of the receipt given Mr. Lauman could leave no doubt upon the point. It is in payment of an overdraft of his account amounting to $1656.12, subject to his right of redemption within two years. “ I agreed that I would hold it for that time, and not sell it to any one else in the mean time.”

At the end of the two years the bank’s power to sell was not hampered by the agreement with Lauman, and it was exercised by them; which action was never questioned until the 18th January 1864, three years, and ten months after the expiration of the two years.

It cannot be doubted that the water stock was the absolute property of the bank, and that the plaintiff had not a shadow of a claim to it after the time for redemption had expired.

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


author: by Agnew, J.

text:
    Baisch versus Oakeley.
    1. Oakeley, who owned two-thirds and Richards one-third of a tract of land, conveyed all his interest to Richards; the next day, by agreement in writing, Richards bound himself to reconvey one-half when ¡¡j!4500 due by Oakeley to him should be repaid. Held, that it was not error to submit to the jury with other evidence in parol, whether the two instruments were a mortgage.
    2. A mere spark of evidence should not carry a case to the jury.
    3. The evidence must be sufficient to found a reasonable probability not a mere possibility, especially to contradict a writing.
    4. Evidence in this case not sufficient to go to the jury as to whether the papers were a mortgage of the two-thirds. ■
    March 6th and 7th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Berks county: No. 322, to January Term 1871.
    •On the 6th of April 1867, George W. Oakeley brought an action of ejectment against John Baisch for a tract of 10 acres and 97 perches of ore land.
    Both parties traced their title from Philip Zeiber, who being the owner of the tract in question, on the 21st of September 1844 conveyed an undivided third to George W. Oakeley the plaintiff and another undivided third to Matthias J. Richards a brother-in-law of Oakeley. On the 14th of February 1845, Zeiber conveyed the remaining undivided third to II. H. Muhlenberg, who on the 1st of October 1845, conveyed this third to Oakeley:— Oakeley thus becoming the owner of two-thirds, and Richards of one third. On the 20th of July 1849, Oakeley, in consideration of one dollar £-£ in addition to other good and valuable causes and considerations had and received from the said Matthias S. Richards at and before,” &c., conveyed to Richards in fee all his interest in the tract and also in a number of leases, amongst which were one from Weimer and another from Davis.
    On the 21st of July 1849, Oakeley and Richards entered into the following agreement:
    ££ Whereas George W. Oakeley and wife, by their certain instrument or instruments of writing bearing date the twentieth of July instant, and recorded in the office for recording of deeds, &c., in and for the county of Berks, for the consideration therein mentioned, granted and conveyed in fee simple unto Matthias S. Richards of Reading (already owner of part) all the right, title and interest of the residue part of and in the vineyard property on Penn Mount, in Alsace township, Berks county, containing ten acres and ninety-seven perches, be the same more or less; also several leases for mining of iron ore, as in and by the said conveyances, on reference thereunto had more fully at large will appear. And whereas the said Matthias S. Richards, being now sole owner of the property, &c., aforesaid, notwithstanding which it is the intention of him the said M. S. Richards, that the one equal undivided half part thereof may become beneficial to him the said George W. Oakeley and family, if he shall prudently manage the same. And a reconveyance of the said undivided half part of the ten acres and ninety-seven perches, premises and leases aforesaid will be made whenever he the said George W. Oakeley shall repay the said M. S. Richards his heirs or assigns, four thousand five hundred dollars, and in the mean time shall have paid .the interest on said sum annually from the date hereof. Or in case of his premature death, in such case the survivors of his family shall be equally entitled to a redemption of the equal undivided half part of the property and leases, if so desired by them within a reasonable time thereafter, on the terms and conditions aforesaid.
    ££ For the present, and until otherwise ordered; it is agreed by and between the parties that George W. Oakeley be the actuary and work the mines to the best advantage, paying the said Matthias S. Richards, his heirs or assigns, twenty-five cents rent for each and every ton iron ore mined, raised and sold, free from any_ other charges; and have in care the vineyard and culture of the grapes, and after deducting all reasonable costs and expenses attending said vineyard and culture from the products thereof, divide the profits arising therefrom and pay to the said M. S. Richards or order, one half part thereof for his share.
    “ And it is also further agreed upon, that the said George W. Oakeley -will well and truly keep an account of the trust aforesaid, and from time to time exhibit the same, and pay over to the said Matthias S. Richards, his heirs or assigns, such rents and dividends, whenever reasonably thereunto required.
    ' “ And it is also understood and agreed upon by and between the said parties, that the present ore mined, estimated at four hundred tons, is reserved for George W. Oakeley, at his disposal without accountability to Matthias ¡3. Richards; and that the said George W. Oakeley is entitled to the two third parts of the vineyard crop in the present season; in all other respects this present agreement is so to be construed as in force and effect from the date hereof.”
    Richards devised the estate to William A. Richards, and he by his will, dated the 6th of April 1865, devised it to John Baisch, the defendant, “ subject however to the agreement entered into by and between my late father, Matthias S. Richards, and my uncle, George W. Oakeley.”
    Oakeley claimed that his conveyance of July 20th 1849 to Richards was a mortgage of two-thirds of the tract for a debt due by him to Richards, and that the indebtedness for which the conveyance had been made had been repaid from sales of ore and ore-rents from the land.
    On the trial before Woodward, P. J., the titles as above stated having been given in evidence by the parties respectively; the plaintiff in rebuttal gave in evidence the two ore leases from Weimer and Davis to himself before the conveyance, at different royalties, and a lease dated January 1st 1851, from Oakeley & Richards to Robert S. Buck for the unexpired time of those two leases and also of the premises in question, under which Buck was to mine 3000 tons of ore per annum, paying seventy cents per ton; also a statement from the books of the lessees (now Reeves, Buck & Co.) to August 14th 1869, showing a balance of $21,948.42, in addition to which were ore and tools belonging to Oakeley, but received by Richards, amounting to $1094.68, making the whole amount $23,043.10.
    Washington Richards testified that he had frequently heard Judge M. S. Richards say he was managing the property for Dr. Oakeley and when the debt was paid it was to be his property again.
    Plaintiff gave in evidence mortgage, notes and bonds held against him by Judge Richards, dated from February 19th to July 26th 1849, and amounting in the whole to $2252.40.
    He called Eliza S. McElroy, a sister of Judge Richards, who testified tbat a paper shown her, was a copy of a paper in the writing of her brother, she had compared the copy with the paper after William Richards’s death, it was found in the ledger in a box; it was copied and put back into the box. “ The paper was about ore; twenty-five cents till the debt was paid; it was signed M. S. Richards, Gr. W. Oakeley; did not know whether the paper had a date or not; was not quite certain whether Richards’s name was to it or not.”
    The paper was as follows:—
    “As to the Weimer and Davis lease, Mr. Oakeley proposes to give William twenty-five cents, to be considered as paying off the principal of the $4500 in course of fourteen years — get nothing further but the principal in dribs. Oakeley agrees to pay the interest on the $4500 yearly.
    “ True copy of M. S. Richards’s handwriting.
    “ Witness — Eliza S. McElrot.”
    The plaintiff offered the paper in evidence; it was objected to by the defendant as being without date or signature and would only mislead the jury if admitted. It was admitted by the court and a bill of exceptions sealed.
    The defendant then gave in evidence settlements between Oakeley and Judge Richards; and it was agreed, that in all there were fifteen;,settlements between them, commencing 6th January 1853, and ending 11th July 1859; that in these settlements M. S. Richards retained annually the sum of $270 for interest from 1850 to 1858; that he retained one-half the net proceeds of the leases.
    Other evidence was offered on both sides, not necessary to be referred to, except evidence by the plaintiff that besides his indebtedness to Judge Richards he was deeply in debt between June 1849 and April 1851 to other persons.
    The court stated the case to the jury as presented by the evidence and charged :i—
    * * * “These are the papers executed by the parties, and [under them, in view of the other evidence in the cause* the legal rights of these parties are to be settled by the jury]. It is claimed on behalf of the plaintiff, that the sum of $4500, the repayment of which was provided for by the agreement of the 21st of July 1849, formed the sole consideration for the conveyance of the preceding day; that the absolute character of the deed was qualified by the agreement, which is alleged to be a defeasance, and that the papers, taken together, amounted to a mortgage. And upon this view of the legal rights of the parties the court are asked for binding instructions that the plaintiff is entitled to a verdict for the whole of his claim, upon the jury finding that the $4500 provided for in the agreement have been fully paid. The fact of this payment is asserted on the part of the plaintiff to be found in the receipt by Judge Richards of ore-rents from Reeves, Ruck & Co., over and above the amount he was entitled to receive as the equitable owner of one-third of the property. The manner of this suggested form of payment the jury will readily understand. The evidence shows that fifteen different settlements were made between Judge Richards and Dr. Oakeley, between the 1st of January 1853 and the 11th of June 1859. The moneys due from Reeves, Buck & Co. were paid to Judge Richards, who charged the general account in the first instance with taxes and expenses, and then retained, each year, the sum of $270 for interest, withholding at each settlement one-half of the net balance and paying to Dr. Oakeley the remaining half. The plaintiff’s theory is, that equitably Judge Richards was entitled to withhold but one-third of the rents after the deduction of expenses, and that his receipt of the excess, in connection with the $270 retained annually for interest, the whole of the $4500 was paid. If the court were warranted in giving the legal instructions asked for by the plaintiff’s counsel, it would only remain for them to submit the question of the fact of this payment to the jury, and there would probably be little difficulty in reaching a result, as it would depend upon a calculation of amounts which are ascertained in the evidence.
    “ The court, however, are not able to give the instructions asked for. It has been held as a rule of law that no form of words can deprive a mortgagor of his right to redeem his land. * * * In view of the principles of law relied upon, the plaintiff’s counsel insisting that the papers in question show that the deed from Oakeley to Richards was in consideration of a pre-existing debt, and that the agreement for a reconveyance on the repayment of that debt was contemporaneous with the deed, insist upon a disposition of the whole case by instructions from the court to the jury that the transaction amounted to a mortgage. On the other hand a ruling in favor of the defendant is contended for because, on the face of the papers, it is shown that the deed and agreement were not of contemporaneous date, and because, in the view of his counsel, the agreement was for a conditional sale by its very terms. If the facts of the case were such as to justify the application of the rule of law for which the plaintiff’s counsel contend, the right of the plaintiff to recover, the repayment of the debt being proved, would perhaps be the necessary result of such an application. But [the court are not at liberty, under this evidence, to assume the disposition of the cause. They are bound to submit to the jury, under the papers and other evidence, the question as to what the real nature of the transaction between Judge Richards and Dr. Oakeley was].
    “ There is no proof of ^character so distinct as to justify the court in adopting it, as to what was- the real consideration of the conveyance of the 20th of July 1849. It does not appear affirmatively that the $4500 mentioned in the agreement formed the sole consideration for the deed. [It is for the jury to connect this deed with the agreement of the following day, if they are to be connected. If, under the evidence, the jury find that the $4500 stipulated in the agreement to be repaid, formed the whole debt of Dr. Oakeley to Judge Richards, and included all the liabilities for the doctor which the judge assumed; that the deed was/made in view of, and in order to secure the payment of that indebtedness ; and that the agreement was made for a reconveyance upon such repayment, then the principles of law which have been read to you are to be applied, and the whole contract, taken together, is to be treated as a mortgage of such interest in the property as Dr. Oakeley owned. In that case, notwithstanding the stipulation for the reconveyance of one-half of the property, the plaintiff would be entitled to a verdict for two-thirds], because the law would treat the contract of the parties as a mortgage, and would limit his rights to a recovery of his debt and interest. There would then remain the simple question as to whether the debt of $4500, with its interest, had been fully paid.
    “ The jury will thus understand that it is their duty to pass upon this whole cause. And they will perform this duty in the light given them by all the evidence that has been submitted. The testimony of Washington Richards is submitted for consideration, with the memorandum sworn to by Mrs. McElroy. In regard to this memorandum, it does not, in the opinion of the court, help or hinder the case upon either side, but it is before the jury in its connection with the other proofs on which they will have to pass. They are to consider all the facts in disposing of the main question presented to them — the family relations, as well as the business relations which existed between Judge Richards and Dr. Oakeley, — the pecuniary position of the doctor at the time, the sort of partnership in the mines which the parties formed, the transactions connected with the mines before the execution of the deed of the 20th of July 1849, and the dealings, arrangements and settlements between them after the execution of the deed and agreement, which the jury shall find to have been proved.
    “ [If the jury find it proved that the sum mentioned in the agreement was the only consideration for the deed, and that the real contract of the parties was to secure the repayment of that sum, and shall find it proved also that the sum has been repaid, the verdict should be in favor of the plaintiff for his entire interest in the land, as that interest was held previous to the execution of the deed.]
    “ [If, on the other hand, it shall he found that there were other considerations of an extent and kind that made it just and equitable that Judge Richards should retain the one-half of the net rents of the property, and just and equitable also that he should retain one-half of the property itself, then, although the jury should find the $4500 to have been paid, the right of the plaintiff would be limited to a verdict for one-half of the land.] * * *

      “ In any event, a verdict is to be rendered in favor of the plaintiff. If the sum of $4500 provided for in the agreement has been fully paid,.and the jury find, under the instructions given them, that the contract of the parties was to secure its payment as a stipulated debt, the verdict should be for two-thirds of the land in controversy. If they find that the money has been paid, and still find that there were other motives and considerations than the $4500 for the execution of the conveyance, and that, in reality, the transaction-was intended to he a contract of sale for a valuable consideration, and not a mortgage, a verdict for one-half only of the land can be rendered. If the jury find that, in whole or in part, the money has not been paid, the jury are to ascertain the sum actually due on this account from Dr. Oakeley, and render a verdict for the plaintiff for two-thirds, or for one-half of the land, as they shall find the actual original contract to require, subject to the payment within a stipulated time, of the balance which shall remain unpaid.” * * *
    The verdict was for the plaintiff for two-thirds of the land.
    The defendant removed the record to the Supreme Court, and there assigned the following errors :—
    2, 3, 4, 5 and 6. The parts of the charge enclosed in brackets.
    9. In not instructing- the jury that the deed and agreement constituted a conditional sale and not a mortgage, and that Dr. Oakley was entitled to recover one-half of the premises upon paying the amount found to be due under the evidence, viz.: '$4500 with interest from July 1859.

      A. Gf. Grreen (with whom was J, L. Richards), for plaintiff in error.
    Parol evidence cannot be given to contradict the written agreement of the parties executed in connection with the deed of conveyance, when such agreement shows that the transaction is a conditional sale and not defeasance: Brown v. Nickle, 6 Barr 390 ; Kunkle v. Wolfersberger, 6 Watts 126 ; Rhines v. Baird, 5 Wright 256. There was nothing for the jury to find; the court should have given binding instructions to the jury to that effect: Todd v. Campbell, 8 Casey 250. Where the contract and conveyance were clearly for an absolute sale, and the agreement to reconvey a subsequent and distinct matter, there may be a conditional sale: Spering’s Appeal, 10 P. F. Smith 199. The covenant to reconvey being at a different time, there could he no decree to reconvey: Barrell v. Sabine, 1 Vernon 268. Richards could not have collected his $4500 by any legal process, and this is a test of a mortgage: Stoever v. Stoever, 9 S. & R. 454.

      May 8th 1871,

      Q-. B. Baer, for defendant in error.
    Parol evidence is admissible to show an absolute deed a mortgage, whilst a mortgage may not be shown to be a deed: Colwell v. Woods, 3 Watts 188; Kerr v. Gilmore, 6 Id. 405; Hiester v. Madeira, 3 W. & S. 384; Director of the Poor v. Royer, 7 Wright 146; Jaques v. Weeks, 7 Watts 261. If the agreement is in substance a loan of money, no management nór contrivance of the lender, no form of expression in the instrument (Kerr v. Gilmore, 6 Watts 407), will avail, and an equity is at once raised which is superior to the technical rules and principles of the common law: 4 Kent’s Com. 143; Story’s Eq. Jur., § 1014; Douglass v. Culverwell, 3 Giff. 251. There was a pre-existing debt and an advance of money; the debt survived, Oakley continued in possession until thrust out by Baisch as devisee of W. A. Richards; the consideration was grossly inadequate; Oakley’s embarrassment and distress are conceded. It follows that this whole transaction was a mortgage: Wharf v. Howell, 5 Binn. 503; Johnston v. Gray, 16 S. & R. 365; Colwell v. Woods, 3 Watts 188; Kunkle v. Wolfersberger, 6 Id. 126; Kerr v. Gilmore, Id. 405; Rankin v. Mortimere, 7 Id. 372; Jaques v. Weeks, Id. 271; Hiester v. Madeira, 3 W. & S. 388; Brown v. Nickle, 6 Barr 390; Reitenbaugh v. Ludwick, 7 Casey 131; Wilson v. Shoenberger, Id. 295; Todd v. Campbell, 8 Id. 250; Kellum v. Smith, 9 Id. 158; Rhines v. Baird, 5 Wright 263; Ins. Co. v. Austin, 6 Id. 266; Directors v. Royer, 7 Id. 146; Guthrie v. Kahle, 10 Id. 331; Spering’s Appeal, 10 P. F. Smith 210; Taylor v. Cornelius, Id. 187; Harper’s Appeal, 14 Id. 315; Fonb. Eq., Book III., ch. 1, § 4; Johnston v. Gray, 16 S. & R. 365; Holridge v. Gillespie, 2 Johns. Chan. 30.
   The opinion of the court was delivered,

by Agnew, J.

The 1st assignment of error, besides having no merit, is not made according to the rule of the court. It is therefore dismissed without further notice.

The 2d, 3d, 4th, 5th, 6th and 9th errors bring up a single question, to wit: the effect of the agreement of July 21st 1849. We discover no error in the court’s submitting to the jury this agreement as evidence, with the other facts in the ease, that the deeds of July 20th 1849, were but a mortgage of the estates conveyed by these deeds to Matthew S. Richards, of the one-half of the property set forth in the agreement. But we think there was no sufficient evidence to submit to them, that the deeds were only a mortgage of two-thirds of the property. It has been frequently said of late by this court, that the doctrine of a scintilla of evidence is not law, and that a mere spark of evidence jraght not to carry a case to the jury. The evidence must be sufficient to found upon it a reasonable probability of the existence of the fact asserted, and not a mere possibility; and especially when its purpose is to contradict a solemn writing of tbe parties stating the fact otherwise. In this case the agreement of July 21st 1849 sets forth, clearly and without qualification or douht, that the estate to be reconveyed by M. S. Richards to George W. Oakeley was the undivided half part of the 10 acres and 97 perches conveyed by the deeds of July 20th 1849, upon repayment of the sum of $4500 and interest; and that Oakeley, as the actuary and agent of Richards of the mines, vineyards, &c., should pay to Richards, after deducting reasonable costs and expenses, one-half of'the profits for his share. This proportion is corroborated by the conduct of the parties for many years while both lived, in the payment of the interest and the division of the profits. Now there is absolutely nothing in the testimony of Washington Richards, and the memorandum testified to by Mrs. McElroy, to contradict this proportion (the one-half), or to prove that the true proportion was two-thirds to be reconveyed. We are not at liberty to infer from the statement of Judge Richards to Washington Richards; that he was managing the property of Dr. Oakeley, and when the debt was paid, it was to be his property again; that he meant a different proportion from that stated in the written contract. The fact that the deeds conveyed two-thirds of the property to Judge Richards is not alone a sufficient reason to overturn the express terms of the agreement of July\21st 1849. Oakeley was then deeply in debt to Richards and also to others, and unable to pay his creditors. The reasonable interpretation of the entire transaction, is, that the deeds were made to equalize the ownership of the parties, as well as to secure repayment advanced or to be advanced; and therefore that the deeds were absolute as to the one-sixth, thus making Richards’s ownership one-half, and were a security for the repayment of the $4500, upon the one-half left in Oakeley. When parties have thus put their bargain in writing and have acted in accordance with it for so many years, it is error to permit a different interest to be found by a jury on such dubious and uncertain evidence as the statement of Washington Richards. It is undoubtedly true that Judge Richards was managing the property for the benefit of Oakeley, his brother-in-law, together with himself. He never denied this, and the memorandum referred to by Mrs. McElroy, proves no more. But how much of the property or what proportion did he mean ? He gave it no name, and signified nothing contrary to his contract. It is now, after his death, a graceless act in the plaintiffs to ask a jury to infer a mere possibility of two-thirds against the positive agreement of both parties that the security for the money should rest upon one-half only; and against their own interpretation of it for years. Eor this error the judgment must be reversed. The 7th and 8th assignments are not according to rule and will not be noticed.

Judgment reversed, and a venire facias de novo awarded.


text:
    Stevenson’s Appeal.
    1. The Act of April 9th 1868, authorizing the Court of Common Pleas and Orphans’ Court of Philadelphia to appoint and remove trustees, giving to the cestui que trusts or a majority of those having the life estate the right to choose trustees, is so far directory as to permit the court to judge of the existence of some cause of removal.
    2. A woman in contemplation of marriage conveyed all her estate in trust for her separate use; after her marriage, she with her husband petitioned the court under the Act of 1868 to remove the trustees named in the deed of trust and appoint another; the Court of Common Pleas under the circumstances dismissed the petition, and on appeal to the Supreme Court the decree of the Common Pleas was affirmed.
    February 20fch 1871. Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Appeal from the Court of Common Pleas of Philadelphia: No. 298, to January Term 1871.
    Proceedings were commenced on the petition of Howard A. Stevenson and Bosalia C. Stevenson his wife, under the Act of April 9th 1868, Pamph. Laws 785, to have Alexander Allen and William Underdown, trustees under a deed of trust made by Mrs. Stevenson while she was a feme sole, removed, and the Grirard Life Insurance, Annuity and Trust Company appointed in their place.
    The petition set out that on the 24th day of January 1870, Bosalia C. Stevenson, one of the petitioners, she being then Mrs. Bosalia C. Hunter, executed a deed of trust, conveying all the property to Alexander Allen and William Underdown, upon certain trusts; that by the provisions of said deed the property wras limited for the sole and separate use of Bosalia C. Stevenson during life; that shortly after the execution of said deed Bosalia C. Hunter intermarried with Howard A. Stevenson, the other petitioner; that Mrs. Stevenson had chosen for trustees to execute the trusts under said deed the Grirard Life Insurance, Annuity and Trust Company of Philadelphia, and prayed the court to remove the trustees named in the deed, and appoint the trust company above mentioned to execute the trusts.
    The act referred to provides: “ That where any trust now exists or is hereafter created, the cestui que trusts, or a majority of them having the life estate, shall have the right to elect or choose trustees to execute said trust; and upon petition of the cestui que trusts or parties in interest as aforesaid having such life estate, the Court of Common Pleas or Orphans’ Court in and for the City of Philadelphia, having jurisdiction, shall remove the acting trustee or trustees, and appoint other or others, as chosen or elected by said parties.”
    The trustees answered, making the deed of trust part of their answer, and averring that the deed was executed by Bosalia C. Hunter, in anticipation of her marriage, and with the design of protecting her property from her husband; that they accepted the trust at her urgent solicitation; that they were ready, willing and anxious to perform the duties imposed upon them; that they believed that Mrs. Stevenson was completely under the control of her husband, and that her petition was the result of influence.
    They denied that there was any good cause for their removal, and averred that Mrs. Stevenson had several children by her first marriage, minors, who did not join in the petition, and that Howard A. Stevenson had said to one of the respondents that the matter could be settled by the payment by the trustees of a certain amount of money.
    The court dismissed'the petition, the opinion of the court being delivered by Ludlow, J.:—
    “ This petition has been filed under the Act of Assembly, approved April 9th 1868, which provides a method by which a cestui que trust may, in Philadelphia county, choose new trustees. Two constructions may be put upon this law; one would oblige us at the mere whim of a cestui que trust, at any time, to appoint a new trustee of his selection; and the other, to make such an appointment when for any just cause the former trustee has been removed, dies or resigns.
    “ Surely we cannot adopt the first construction, because it could never have been the intention of the legislature to endanger or destroy trusts altogether. That such a result would follow in practice from such a construction is clear, for the new trustee would be placed under the control of the cestui que trust. If the power of right exists it may of right be exercised at any moment. The trustee appointed to-day, no matter how unexceptionable he may be, can be removed to-morrow on the mere petition of the cestui que trust, and so on from day to day, and week to week, and year to year.
    “ The moment a trustee, although exercising a just restraint, does a .thing which his cestui que trust does not approve, he may, —yes, if we adopt the argument of the petitioners’ counsel, — must be removed.

      “ Who is to be the master of the situation ? What is to become of the trust estate ? The person to be protected, under the supervision of the court, exercises a fatal control over the agent appointed to protect him, and even commands the court. One trustee must follow another, it may be in such rapid succession that the investments of a trust estate will hardly be known to one before his successor will be appointed; account after account-must be filed, thus opening the door to prejudicial litigation, with its inevitable cost. It is our duty to rescue this Act of Assembly from a construction which will produce such chaos as this. Fortunately we can do so by holding the act to be so far directory as to permit us to judge of the existence of some cause of removal. When such cause does in fact exist, and the cestui que trust may nominate, if we approve of his nominee we will appoint him. In the argument the counsel for the petitioner admitted that we were not bound to appoint an improper person as a trustee, even upon the nomination of the cestui que trust; by analogy, we think it just as reasonable not to remove a trustee without cause, and for the reasons we have already stated.

      “We do not now discuss the question of the constitutionality of the act; give to it our construction, and it is clearly constitutional. We only add that should the petitioners’ construction be the true one, then it is very questionable how far any Act of Assembly which, if not in form, in fact destroys every substantial characteristic of a trust, can be consistent with our constitution.
    “ As this petition presents no reason why the present trustee should he removed, we decline to grant its prayer.”
    The petitioners appealed, and assigned for error the dismissal of the petition.
    /S'. /S'. Hollingsworth and Q-. W. Biddle, for appellants.
    A proper construction of the Act of 1868 makes it imperative upon the court to remove the acting trustee: Philpott v. St. George’s Hospital, 6 H. L. Cas. 338; Fisher’s Dig. vol. iv., 8207; Fordyce v. Bridges, 1 H. L. Cas. 1; Logan v. Earl of Courtown, 13 Beav. 22. The act is constitutional as to trusts created since its passage: Ogden v. Saunders, 12 Wheat. 252; Haldeman v. Haldeman, 4 Wright 29; Sedgwick on Statutory and Const. Law 167; Menges v. Dentler, 9 Casey 498; Act of March 29th 1832, Purd. 306, pl. 203, p. 278, pl. 33: Camfrauque v. Burnell, 1 Wash. C. C. R. 341; Smedley v. Erwin, 1 P. F. Smith 451; Erie and N. E. Railroad v. Casey, 2 Casey 301. A married woman being the only cestui que trust for life is entitled to choose a trustee under the Act of April 25th 1850, Purd. 700, pl. 17: Burson’s Appeal, 10 Harris 167; Act of June 16th 1836, Paraph. L. 789, Purd. 409, pl. 1; Commonwealth v. Smith, 4 Binn. 117.

      J. G-. Johnson (with whom was Charles Gribbons), for appellee,
    r — A married woman is not within the enabling provisions of the act: Lancaster v. Dolan, 1 Rawle 231; Rogers v. Smith, 4 Barr 93; 4 Fisher’s Dig. 8207; Cope v. Doherty, 2 DeG. & J. 614; Staniels v. Raymond, 4 Cush. 314; Strouse v. Becker, 8 Wright 206; Commonwealth v. Hartnell, 3 Gray 450 ; Commonwealth v. Montrose, 2 P. F. Smith 391; Osgood v. Breed, 12 Mass. 530; Powell on Dev. 140; Dyer 354; Wilbur v. Crane, 13 Pick. 284; Bulkley v. Eckert, 3 Barr 368; City of Erie v. Knapp, 5 Casey 174.
    The intention of the Act of 1868 is to confer upon cestuis que trustent the power formerly vested in the court, to elect new trustees in place of those removed by it: Anon., Lofft 398; Rex v. Palmer, 2 East P. C. 898; McWilliam v. Adams, 1 Macq. H. L. Cas. 120; Church v. Crocker, 3 Mass. 21; 20 Pick. 267, 407; 10 Pick. 235; People v. Utica Ins. Co., 15 Johns. 358; Rodgers v. Bradshaw, 20 Johns, 735; McCarter v. Asylum, 9 Cow. 437; Neff’s Appeal, 9 Harris 243; Shaw v. Ruddin, 9 Irish C. L. R. 214; Mason v. Armitage, 13 Ves. 36; Hughes v. Railway Co., 1 Drew. & Smale 524; Bradford v. Jones, 1 Md. 351; Seidenbender v. Charles, 4 S. & R. 166; Denton v. Mannere, 4 Jur. N. S. 151; Swanton v. Goold, 9 Irish C. L. R. 234; Regina v. Mallow Union, 12 Id. 35; Anonymous, Lofft 438; Wales v. Stetson, 2 Mass. 143; Langdon v. Potter, 3 Id. 215; Ayers v. Knox, 7 Id. 306; Donaldson v. Wood, 22 Wend. 395; Brown v. Barry, 3 Dall. 367; Vanhorne v. Dorrance, 2 Id. 316 ; Knabb v. Drake, 11 Harris 490; Rutherford v. Greene, 2 Wheat. 196; Esterly’s Appeal, 4 P. F. Smith 192; McMullin v. McCreary, Id. 230 ; In re Bridgman, 1 Drew & Sm. 164; Rex v. Flockwold, 2 Chitty 251; Newport Bridge, 2 El. & El. 377 ; People v. Council, 22 Barb. 404; Wheeler v. Chicago, 24 Ill. 105; Commonwealth v. Halloway, 6 Wright 446 ; O’Conner v. Warner, 4 W. & S. 227; Bagg’s Appeal, 7 Wright 512; Menges v. Dentler, 9 Casey 495; DeChastellux v. Fairchild, 3 Harris 18; Ervine’s Appeal, 4 Id. 260; Brown v. Hummel, 6 Barr 86.
    May 18th 1871,
   The opinion of the court was delivered,

by Read, J.

Rosalia Cecilia Hunter, a widow, with several minor children, in contemplation of marriage with her present husband, Howard A. Stevenson, by deed dated 24th January 1870, conveyed all her property to Alexander Allen (her father) and William Unclerdown, upon certain trusts therein set forth, and amongst others for the sole and separate use of the said Rosalia Cecilia during her natural life.

On the 24th October 1870, the said Howard and Rosalia his wife filed their petition in the Court of Common Pleas, stating that she had chosen for trustees to execute the trust under the said deed, The Girard Life Insurance, Annuity and Trust Company of Philadelphia, and prayed the court to remove the acting trustees,, and to appoint the said company to execute the said trust. No misconduct of any kind was alleged against the trustees, who say in their answer, “ that they accepted the trust at her urgent and repeated solicitation, and with the expectation and understanding, that they should continue to act as such trustees during their good behavior.”

The trustees aver, that the deed “ was executed by said Rosalia Cecilia Hunter in anticipation of her marriage, and with the design of protecting her property from her husband.” “ They believe that the said Rosalia Cecilia Stevenson is completely under the control of her said husband, and that the said petition does not express her own free will, but is the result of said influence,” and in the 6th and last paragraph of their answer they say, “ the said Howard A. Stevenson has said to one of the respondents, that the matter can be settled by the payment by trustees of a certain amount of money.”

On the 81st December 1870, the court dismissed the petition.

This application was made under the Act of April 9th 1868, entitled “ An Act to authorize the Court of Common Pleas and Orphans’ Court of the city of Philadelphia to appoint and remove trustees:” Pamph. L. 785.

This title clearly expresses the object of the act and the will of the legislature, and has been carried out by the Court of Common Pleas in the construction placed upon it by them, as stated in the opinion of Judge Ludlow, which we adopt. It is impossible to suppose that the legislature intended practically to destroy trusts in the commercial metropolis of the state, where they are created every day by deeds and wills, and to leave them untouched in every other part of this great Commonwealth. If the construction contended for by the counsel for the petitioner is correct, what would be the consequence ? Trusts are created to protect and support minor children, weak and feeble-minded persons, men and women whose faculties have been weakened by drink or disease, deaf, dumb, blind, and incurably lame and decrepid persons, monomaniacs, partially insane persons and married women, and the trustees invested with the legal estate have been selected at the creation of the trusts for their honesty, integrity and capacity, and then the whole fabric is swept away at the mere whim of the cestui que trust, who never was trusted, but was intended to be protected against himself and his utter incapacity to manage his own affairs.

The legislature never intended so absurd an act, as to make a minor of tender years or a woman under the influence of her husband, anxious to grasp her property, the sole judge without appeal of who shall manage a trust created for the express purpose of preserving the property intact for the support and maintenance of the cestui que trust.

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