author: Mr. Justice Mercur

text:
    Brady versus Reed et al.

    Where an action is brought against three partners, one of whom subsequently dies, and his death having been suggested, his executors are substituted in his place, the plaintiff is not a competent witness as to anything which occurred during the lifetime of the deceased partner, although the latter may have personally taken no part in the contract upon which the suit was brought.
    May 8th 1878.
    Before Agnew, C. J., Merour, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lancaster county : Of May Term 1878, No. 137.
    Assumpsit by John Brady against John K. Reed, Amos S. Henderson and Isaac E. Hiester, partners trading as Reed, Henderson & Co. Plea, non-assumpsit.
    John K. Reed, Amos S. Henderson and Isaac E. Hiester, in the spring of 1868, were doing business in the city of Lancaster, as bankers, under the firm name of Reed, Henderson & Co. Brady, the plaintiff below, alleged that on March 12th 1868, he left on the counter of their banking-house a check on the Lancaster County Bank for $550, without a date, and that this check was appropriated by Reed, Henderson & Co., they receiving the proceeds without paying value. Reed, Henderson & Co. alleged that they, as a pure accommodation, cashed the check for Brady, on April 1st 1868, giving him the money. Brady brought suit against the firm in September 1869. Isaac E. Hiester died in February 1871. In October 1877, the death of I. E. Hiester was suggested, and his executors substituted. The case was then tried, and Brady, having offered himself as a witness, wras rejected by the court, Livingston, P. J.
    This was among the errors assigned by Brady, who took this writ.

      H. O. Brubaker, for plaintiff in error.
    The offer of plaintiff was a special one, and proposed to confine his testimony exclusively to what occurred between plaintiff and the active partners of the firm, Reed and Henderson, and not to anything which concerned Hiester, who while a member of the firm did not transact its business, but was engaged in other pursuits. Such a special offer, we contend, is not within the proviso of the Act of April 15th 1869. Hiester, if living, could not have testified to the transaction which did not occur in his presence, and both the reason and spirit of the proviso is defeated if the ruling of the court below is sustained: Hanna v. Wray, 27 P. F. Smith 31.

      I). G. Eshleman, E. S. Yundt, Gteorge Nauman and B. E. Eshleman, for defendants in error.
    The admission of the testimony of Brady would have been in conflict with all the decisions interpreting the Act of 1869: Eilbert v. Finkbeiner, 18 P. F. Smith 243 ; Hanna v. Wray, 27 Id. 27. But if it be said that the surviving partners are parties to this suit, and that the action is also against them, the answer is that I. E. Hiester in this case is a dead assignor of the thing or contract in action, and the surviving partners stand in his place, “ clothed with all his rights, and therefore entitled to all his knowledge as a witness:" Standbridge v. Catanach, 2 Norris 368; Gardner v. McLallen, 29 P. F. Smith 398. See also Crouse v. Staley, 3 W. N. C. 83, and Noble v. Mortimer, 4 Id. 300, where the point in this case was ruled.
    May 20th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This action was brought against three persons as partners. More than a year thereafter one of the defendants died. Before trial his death was suggested, and his executors substituted.

Prior to the Act of 22d March 1861, the suit should have continued against the survivors only; but under that act, the executors were correctly substituted, and thenceforth it proceeded against the executors of the decedent, and the survivors jointly: Dingman v. Amsink, 27 P. F. Smith 114.

In Taylor v. Kelly, 30 P. F. Smith 95, it was said “a true enforcement of the statute of 1869, requires us to hold that it means what it says, when it declares ‘this act shall not apply to actions by or against executors, administrators or guardians. ’ ’ ’ There the action was brought against an executor, and we held the act did not apply. In Eilbert v. Finkbeiner, 18 P. F. Smith 243, the action was commenced between parties in their own right. The defendant died and his administrator was substituted. On a subsequent trial the surviving party was offered as a witness, and rejected by the court. In affirming that rejection, Mr. Justice Sharswood said, “ the plaintiff was clearly an incompetent witness against the administrator defendant.” Hence the rule of exclusion applies as well to cases where one of the parties has died after suit commenced, as to those in which he had died before. The condition of the parties at the time the witness is called, controls the question of competency. This, however, is not the only class of cases in wrhich the statute declares the party to be an incompetent witness. It extends to cases “ where the assignor of the thing or contract in action may be dead.” Hence it was said, in Karns v. Tanner, 16 P. F. Smith 297, that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or that of the. law, to another who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occuring in the lifetime of the adverse party.” It was held in Hanna v. Wray, 27 P. F. Smith 27, that by the death of one defendant, his rights and liabilities, by operation of law, devolved upon the surviving partner, who was a co-defendant. It is true, in that case, the offer uras to prove by the plaintiff, a transaction with the defendant, who had since died, and the question was reserved whether it was competent for the plaintiff to testify to matters occurring between him and the surviving partner. It was there said by Chief Justice Agnkw, that in the settlement of the partnership account of the surviving partner, with the legal representative of the decedent, the former would be .entitled to a credit for the payment of the judgment recovered against him as surviving partner, unless it could be shown the judgment was recovered through his collusion, or fraud, or his gross neglect. The question thus reserved in Hanna v. Wray, was decided in Crouse v. Staley, 3 W. N. C. 83. That was a case brought by Crouse against Staley and wife.' Before trial, Mrs. Staley died, and her administrator was substituted. The court below permitted Staley to testify in regard to transactions which occurred during the life of Mrs. Staley. This was assigned for error. In reversing the case it was said, the equality of the parties was gone in respect to their ability to testify. It was therefore held, that neither Crouse nor Staley were competent. The transaction sought to be proved by each occurred during the life of Mrs. Staley. It is not the extent of the interest of the estate of the decedent in the contract that excludes the surviving parties to that contract. If such an interest devolved on the survivor, as to charge the estate of the decedent, with a liability on the judgment, the rule applies. It was well said in Hanna v. Wray, supra, “ nor can it make any difference that it was only one-half of the subject of controversy that thus devolved on the survivor.” So the devolution of one-third, or any lesser part of the subject in controversy, on the survivors, works the same effect. It was also held in Kimble v. Carothers, 3 W. N. C. 88, that “ a living party shall not be heard to prove a claim against the estate of a decedent, who was also a party to the contract or transaction, whose lips are now sealed.” In Pratt v. Patterson, 3 W. N. C. 161, and again in Evans v. Reed, 4 Id. 301, we held that a surviving party was not competent to testify to matters which transpired during the life of a deceased party. It matters not that the offer be to prove a contract with the partner who is still living, when the effect is to charge the estate of the one who is dead. Although he may not personally have participated in the making of the contract, yet it does not follow, that if living he could not have testified to the fulfilment of it, or a subsequent release or discharge therefrom. Hence it follows in reason and on authority, that if Heister’s executors had not been substituted, the plaintiff was not competent to testify to any transaction which occurred during the life of the decedent. By the substitution, the letter and reason of the statute unite in sustaining the ruling of the learned judge. The second assignment presents no cause for complaint by the plaintiff in error.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Long’s Appeal.
    1. A corporation has no vested right to a remedy for the assessment of damages for land taken for its purposes, and the legislature may alter such remedy, or substitute a new one, provided there is no interference with the company’s franchise or the citizen’s right.
    2. Whatever belongs merely to the remedy adopted for the acquisition of a right may be altered according to the will of the state, provided the alteration does not impair the obligation of a contract, and such result is not worked when a substantial remedy is left to the parties according to the ordinary course of justice.
    3. By the Act of April 10th 1867, the Pennsylvania Railroad was authorized to straighten its.traek. Viewers were appointed, under the provisions of the Act of March 27th 1848, to assess the damages. This latter act embraced no right-to appeal from the assessment, and there were no other acts giving this right as against said company until the Act of June 13th 1874, which gives an appeal to either party. The court below held that as there was no provision for appeal applicable to said company until 1874, and as the company had not accepted the benefit of any legislation under the new constitution, the Act of 1874, in so far as it applied to the Act of 1848, was unconstitutional, and struck off the appeal. Held, that this was error, as the provision of the Act of 1874 was merely a change in the remedy and did not impair any franchise of the company.

      May 8th 1878.
    Before Agnbw, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 84.
    Appeal of Abraham E. Long and Susan E. Long, from the decree of the court striking off their appeal from a report of viewers.
    The appellants owned a farm of 111 acres in Lancaster county, through which the Pennsylvania Railroad Company, with a view to straightening their road, laid out a new route, and petitioned the court for viewers to assess the damages for the land thus -taken. Five viewers were appointed, who assessed the damages at $750, from which award the appellants took an appeal to the Court of Common Pleas. The counsel for the company moved to strike off this appeal, on the ground that an appeal could not be allowed in such cases as against said railroad company, and the court, Patterson, A. L. J., struck it off, in an opinion, inter alia, saying, “ The charter of the Pennsylvania Railroad Company is conferred by the Act of 18th of April 1846, and its numerous supplements. The fourth section of the supplement of 27th of March 1848, Pamph. L. 312, and the twelfth section of the former act, provide for assessing the damages for the property taken for the railroad. The power and manner of assessing such damages are thereby conferred upon five viewers, whose report is made upon their own view, and is subject, when returned, to the confirmation of the Court of Common Pleas. Those statutes not providing in express terms for an appeal by either party from such specific remedy or assessment of damages by the five viewers, the Supreme Court have held ‘ that the Pennsylvania Railroad Company is regulated by the law of its charter in taking private property for its purposes, and that by the powers and privileges thereby conferred, in appropriating private property for its road, it exercises a part of the sovereign power of the state — that of eminent domain, which is uncontrolled by constitutional restriction, except that of making just compensation.’ In short the Supreme Court of Pennsylvania have held those sections of defendant’s charter referred to constitutional, and that neither the corporation nor the owner of the land taken have the right of appeal to the Common Pleas on the facts ; that neither have the right of trial by jury : Pennsylvania Railroad Co. v. The First Lutheran Congregation of Pittsburgh, 3 P. F. Smith 445; see also, McKinney v. Monongahela Navigation Co., 2 Harris 65. The Pennsylvania Railroad Company, as regards the assessment of damages, is not subject to the Act of February 19th 1849 ; Snyder v. The Pennsylvania Railroad Company, 5 P. F. Smith 343; Heise v. Pennsylvania Railroad Co., 12 Id. 71. It was contended on the argument that the appeal in this case could be sustained by force of the 8th sect, of art. 16, of the constitution of 1874, and the Act of Assembly entitled ‘for further regulation of appeals from assessments of damages to owners of property taken for public use,’ approved 13th June 1874. But it has not been shown to the court that the Pennsylvania Railroad Company have accepted any beneficial legislation since the adoption of the New Constitution of 1874, and without •which it is not to be affected by its provisions, nor by the Act of 13th of June 1874. The framers of that constitution seem not to have assumed for it a more extended dominion than that over corporations incorporated prior to its adoption by the people. For in sect. 10th of art. 17th, it reads that ‘no railroad, canal or other transportation company, in existence at the time of the adoption of this article, shall have the benefit of any future legislation, by general or special laws, except on condition of complete acceptance of all the provisions of this article.’ The Supreme Court clearly ruled in the case of Hays v. Commonwealth, 1 Norris 518, ‘ that charters of private corporations are left exactly as the New Constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the state, by accepting the benefit of some future legislation.’ The 4th sect, of the supplement of 1848 to the charter of the defendants, and its original act of incorporation, having been decided to be constitutional, the above case would be decisive of the question before us. Other authorities contain the same ruling: Pennsylvania Railroad Co. v. Gorsuch, 3 Norris 411.”
    The striking off the appeal was the error assigned.

      N JSllmaher and L. JEIlmaJcer, for appellants.
    Sect. 8, art. 16 of the constitution, prohibits the General Assembly from depriving any person of the right of appeal from an assessment of damages against a corporation, and provides that on demand of either party the damages in all cases of appeal shall be determined by a jury according to the common law. The Act of June 13th 1874, Pamph. L. 283, provides that an appeal may be taken to the Common Pleas. The appellees contend that not having accepted the benefit of any legislation since the adoption of the constitution, they, by virtue of sect. 10, art. 17 of the constitution, are not subject to the provisions of sect. 8, art. 16 and the Act of 1874, and the appellants have therefore no right to appeal. Can it be claimed that the corporation, by its non-acceptance of the provisions of the constitution, can deprive a citizen of a right guaranteed to him by this constitution ?

      N. M. North, for appellees.
    The Pennsylvania Railroad Company was incorporated by the Act of April 13th 1846, Pamph. L. 312, the 12th sect., of which provided for the assessment of land damages by viewers by proceedings in the Quarter Sessions. By a supplement approved March 27th 1848, Pamph. L. 273, the proceeding was changed to the Common Pleas which appoints five viewers who report to the court. Under this supplement of 1848 the viewers were appointed. In neither act is there any provision for an appeal by either party: Penna. Railroad Co. v. Lutheran Congregation, 3 P. F. Smith 445. Nor was there any general law providing for an appeal. The General Railroad Act was approved February 19th 1849, and it did not grant an appeal; the 11th sect, provided a mode of assessing damages. Then came the Act of April 9th 1856, sect. 3, Pamph. L. 288, authorizing an appeal in the proceeding under sect. 11 of the general law. But the Pennsylvania Railroad Company is not subject to either of these acts: Snyder v. Penna. Railroad Co., 5 P. F. Smith 340. There is, therefore, no provision for an appeal, and no act which authorizes it as against this company, unless it be the Act of 1874, and as the company has not accepted the benefit of any legislation under the new constitution, it seems clear that the company cannot appeal, for that would be getting the benefit of future legislation by general law, without accepting said article 17, just what is prohibited by said section 10. And if the company cannot appeal, neither can the landowners, for the parties must have mutual rights. The Act of 1874 is broad enough in its terms to include the Pennsylvania Railroad Company, but as to said company it is clearly unconstitutional: Hays et al. v. Commonwealth, 1 Norris 518.
    October 7th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

By the Act of April 10th 1867, the Pennsylvania Railroad Company was, inter alia, authorized and empowered, whenever it should deem it necessary so to do, to straighten and improve its lines of railroads, and, also, “to enter upon, acquire, take and appropriate such lands, tenements and property along, adjoining or contiguous to said railroads, or elsewhere, that they may deem necessary for the purpose of straightening of and improving of said railroads and constructing the needful appurtenances thereto.” This section embraces the right granted by the state to the company — the right of eminent domain. It is a franchise acquired from the Commonwealth quasi contract, and that it cannot be impeached or avoided by legislative act, except only after judgment of forfeiture duly pronounced, upon proper judicial process, is a fact so well settled as to be no longer the subject of discussion. But this right is necessarily subordinate to that of the citizen, for he holds his lands, or other property, by contract older and, therefore, superior to that of the company; and as this right of the natural person is quite as important and sacred as that of the artificial person, the legislature has been careful to recognise and secure it by the statutory provision, so that, before his property can be disturbed or appropriated, compensation must be made or adequate security given therefor. Here, then, we have the two rights clearly defined and recognised; the company’s right to take the property of the citizen and the citizen’s right to compensation. What remains is but a question of remedy. If the parties cannot agree upon the value of the property taken, some means must be provided by which it can be ascertained, and the owner must have some method by which he may enforce payment. The remedy is to be found in the 4th section of the Act of March 27th 1848. On the application of either party the Court of Common Pleas is required to appoint five disinterested persons for the purpose of viewing the property taken, or proposed to be taken, and settling the value thereof and the damages, on whose report, when returned and approved, judgment may be entered, from which execution may issue as in other cases. This, then, is the remedy prescribed, the means to be used in order to secure to the owner the value of his property. It is, however, but a remedy, and it neither enlarges nor abridges the rights vested in either party. Such being the case, we cannot see why the lawmaking power may not only amend the present remedy, but even substitute a new one, provided there be no interference with the company’s franchise or the citizen’s right.

The Act of 1874 gives to either party the right of appeal from the assessment of the viewers and, in this respect, has amended the Act of 1848.

The court below pronounced the Act of 1874 unconstitutional so far as it applied to the Act of 1848, and, on motion of the company, struck off the appeal taken by the appellants. In support of this action the learned judge has cited several decisions tending to prove that the Pennsylvania Railroad Co., in regard to the assessment of damages, is not subject to the Act of 1849, but to the Act of 1848, and that the latter, though not embracing the right of appeal, is constitutional. These propositions are undeniable; but the authorities, by which they are supported, do not hold that the Act of 1848 might not be amended. Hays v. The Commonwealth, 1 Norris 518, is also cited to prove that the charters of corporations were left, by the new constitution, as it found them, and that it neither did, nor could, authorize their alteration except by the consent of the companies holding them. The distinction, however, between that case and the one in hand is very broad; there the attempt was to alter the charter mode of election ; an attempt to introduce a radical change in the corporate organization; here, there is but a change made in the remedy ; the means to be used by the property-owner in order to obtain compensation, and in the peculiar forms of which remedy the company has no more of vested right than the citizen. We cannot consent that the legislature shall be deprived of its lawmaking power without some reason therefor. If indeed, it appeared that a franchise of the company had been invaded by the Act of 1874, we would not hesitate to pronounce that act invalid, but we cannot see that such is the fact. The right of eminent domain remains to it intact; the right to straighten and improve its road has not been impaired, neither is it required to pay more for the property, it may see fit to appropriate, than formerly. If, then, this corporation can complain of the abduction of no right or power material to the exercise of its corporate functions, may it yet claim and maintain, as an inviolable franchise, a mere legal remedy, and so for ever perpetuate that remedy in spite of the legislative will ? W e think not. In this respect corporate rights occupy no higher plane than those of natural persons, and for this reason, a remedy can no more become absolute, in a corporation than in a natural person. Every contract, when entered into, is made in view of the laws then existing for the enforcement of contracts, and so the law becomes part thereof: Ogden v. Saunders, 12 Wheat. 259. Yet, though this is so, no one will contend that such laws may not be amended, or even repealed, provided new ones, looking to the same end, are substituted. The citizen is entitled to a remedy, otherwise his contract would be valueless, but the form thereof is within the legislative power, and this power cannot be restrained by the contract.

The rule of law upon this subject is, that whatever belongs merely to the remedy, adapted for the acquisition of a right, may be altered according to the will of the state, provided the alteration does not impair the obligation of a contract; and such result is not worked where a substantial remedy is left to the parties according to the ordinary course of justice: Bronson v. Kinzie, 1 How. 316; Kenyon v. Stewart, 8 Wright 179. In the case of the Kailroad Co. v. Hecht, 5 Otto 168, it was held by the Supreme Court of the United States (opinion by Mr. Chief Justice Waite), that, as to remedy, it has always been held that the legislative power of change may be exercised when it does not affect injuriously rights which have been secured. In accord with this sentiment is the conclusion of an eminent law writer, that laws, changing the remedies for the enforcement of legal contracts, will be considered valid though the new remedy be less convenient, or less prompt and speedy than the old : Cooley’s Const. Lim. 287. Of a like character are the remarks of Mr. Justice Strong, in the case of Pen-rose v. The Erie Canal Co., 6 P. F. Smith 46, that, in the Supreme Court of the United States, the distinction was early taken between the obligation of a contract and the legal remedy for its breach; that court holding that, whilst the obligation may not be impaired, the remedy to enforce it may be changed and even partially taken away.

The principle running through the above-cited authorities, will be observed to apply with double force to the case in hand when it is considered, that, not only is no right or obligation impaired bv the Act of 1874, but that the remedy itself is not restricted or made less efficient, but only enlarged and perfected, the right of appeal making it equivalent to a common-law action.

We finally conclude, then, that as this matter of remedy belongs as well to the property-owner as to the corporation; and as the former cannot be heard to complain of the action of the legislature in giving, by the Act of 1874, the power of appeal, neither can the latter, for the right of the latter, in the premises, is not superior to that of the former; both stand upon the same platform, and both must have the same judgment.

The order of the court below, of the 17th November 1877, striking off the appeal of Abraham E. and Susan E. Long is now reversed. The said appeal is restored, and a procedendo is awarded. Costs of this appeal to be paid by the appellee.

Paxson, J., dissents.


author: Mr. Justice Woodward

text:
    Witmer’s Appeal.
    1. Trustees, in this state, are not liable beyond what they actually receive, except in cases of gross negligence, and are not responsible when, observing statutory provisions relating to investments, they deal with moneys entrusted to them in good faith, as men of ordinary prudence and sagacity deal with their own property.
    2. It seems that the time allowed for the investment of trust-moneys should be such as the circumstances of each particular case would show to be reasonable.
    3. A fund was invested by a trustee with the approval of the court, in the state loan of 1867, the interest on which was payablein August and February. The bonds were deposited in bank, and the intei'est drawn by the cashier. In the exercise of the option reserved to the state, the loan was paid in November 1875, when the interest ceased to acorné. No actual notice of this payment was received, either by the trustee or the cashier, until after February 1st 1876. Held (reversing the court below), that it was erroneous to surcharge the trustees with the intei'est between these dates. Held, further, that an allowance of two months wherein to reinvest the fund was not undue.
    May 8th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Shauswood, J., absent.
    Appeal from the Court of Common Pleas of Lancaster county:' Of May Term 1878, No. 67.
    Appeal of Adam K. Witmer from the decree of the court, Livingston, P. J., upon exceptions filed to the report of the auditor to audit the accounts of appellant as the trustee of David Conyngham.
    The facts are sufficiently set forth in the opinion of this court.

      Lf. Lllmalcer, for appellant.
    It is a harsh demand to make a trustee answerable for what never was in his hands, or to compel him to make up a deficiency not owing to his wilful default: Eyster’s Appeal, 4 Harris 376. Common skill, prudence and caution are all that is required of trustees: Neff’s Appeal, 7 P. F. Smith 96 ; Jones’s Appeal, 8 W. & S. 143; Chambersburg Savings Fund Association’s Appeal, 26 P. F. Smith 203. They are only liable to a surcharge when guilty of fraud or supine negligence: Moore’s Appeal, 10 Barr 438; Springer’s Est., 1 P. F. Smith 342.
    The law allows a reasonable time for investment, and in Pennsylvania what is reasonable time has been variously decided. In Merrick’s Estate, 1 Ash. 305; Huffer’s Appeal, 2 Grant 341; Worrell’s Appeal, 11 Harris 44; Lukens’ Appeal, 11 Wright 356, and Hughes’ Appeal, 53 Id. 500, six months were allowed.. There is no fixed rule, and the circumstances of each case must, to a great extent, determine the question.

      D. Gf. JSshleman and William S. Amweg, for appellee.
    If trustees unnecessarily retain cash balances, or allow trust funds to remain unproductive, they are answerable for a loss thus occasioned: Hill on Trustees, 4th Am. ed., 566 ; Lewin on Trusts, 2d Am. ed., *359. Many cases assert the principle that a trustee for investment is bound to keep the fund constantly productive, so that the cestui que> trust shall never be deprived of his interest. In Dietrich v. Heft, 5 Barr 87, 95, a guardian was charged interest on sums uninvested from the day on which they were received. In Lane’s Appeal, 12 Harris 487, an assignee for the benefit of creditors, and therefore a trustee for distribution only, was allowed two months after the receipt of funds for their investment.
    October 7th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,-

Adam K. Witmer became the trustee of David Conyngham, under a bequest in the will of Mrs. E. Y. Conyngham, which was proved on the 6th of August 1864, and under an instrument executed by the cestui que trust himself, on the 7th of January 1868. The entire fund amounted to $20,657.33, of which the sum of $12,000 was invested in the Pennsylvania State Loan of 1867, on the 9th of March 1868. On the 16th of March this investment was approved by the Court of Common Pleas of Lancaster. The bonds were deposited in the Farmers’ National Bank of Lancaster, and the interest was drawn by its cashier. In the exercise of the option reserved to the state, the loan was paid on the 1st of November 1875. The auditor has reported that actual notice of this payment was not received, either by Mr. Witmer or the cashier of the bank, until after the 1st of February 1876. Of necessity, interest ceased to accrue when the loan was redeemed, and for three months, therefore, the fund was unproductive. Receiving the money in February 1876, with three months’ interest from August to November 1875, the auditor decided that it was the trustee’s duty to re-in vest the principal by the 1st of April 1876, a period of the year at which, in the language of the report, “liens upon real estate of undoubted sufficiency are always to be had.” From that date, accordingly, interest was surcharged. Upon exceptions filed in the Common Pleas, the court held that the trustee had “fallen short of the activity, care and diligence exercised by men of ordinary vigilance and prudence in conducting their own affairs,” and ordered the report to be so corrected as to charge him with interest from the 1st of November 1875 to the 1st of April 1876.

No doubt can be entertained of the accuracy of the facts found by the auditor. It is true that Mr. Conyngham testified that in August 1875, he gave to Mr. Witmer a notice he had cut from a newspaper of thé payment of the loan. But he added that it was declared to be payable to the Merchants’ and Mechanics’ Bank of Philadelphia four days after the date of the notice in the paper. In its inherent features, this testimony was unreliable. No notice of payment within four days could have been given, and the name of the bank was mistaken. Mr. Witmer’s statement was positive that he had no knowledge that the loan was to be paid off. And it is not credible, if Mr. Conyngham’s recollection was accurate, that he would have received, and his trustee would have paid, on the 8th of February 1876, the whole interest for the preceding six months, without inquiry or remark. It does not, perhaps, bear on this question that the excess paid over was returned on the 30th of June 1876, as the amount was simply retained out of the proceeds of other investments in the trustee’s hands. The testimony of the cashier of the Farmers’ National Bank that he had no knowledge of the payment of the loan, was also positive and distinct. '

In considering the propriety of the decree of the Common Pleas, the apparent fact is to be taken into account that the interest with which he was surcharged had never been received by the trustee. Was his failure to collect the fund for three months, and to reinvest it during two months more, such an omission as ought to be characterized as supine negligence or wilful default ? It has not been discovered that his place of residence at the time when the loan was paid off was proved, but it appears from his testimony that he was carrying on a commission, transportation, coal and lumber business at Paradise, in Lancaster county. He received and read the Philadelphia “North American,” and two local newspapers, and they furnished him no information on this subject. The auditor found he had no actual notice, and the question is presented, whether he was blameable for failing to discover the advertisement in the papers which the state officers selected for its publication ? The bonds were in the custody of a bank cashier, who had authority to collect the interest. The trustee would naturally rely on his agent for such information as he would need in regard to the situation of the fund. When the interest, due in August 1875, was received, the loan had still two years to run, for the time fixed for its absolute payment was not reached until 1877. And there was nothing in the evidence to show that he had reason to believe that the time of payment would be anticipated. Under the circumstances disclosed, the failure to ascertain the action of the state authorities at a date midway between two semi-annual interest periods, ought not to be treated as amounting to gross neglect. It has been repeatedly said that it is .the harshest demand that can be made in equity to compel trustees to make up a deficiency not owing to their wilful default: Jackson v. Jackson, 1 Atk. 513; Johnson’s Appeal, 12 S. & R. 317; and Neff’s Appeal, 7 P. F. Smith 91. With all the publicity that is given to the lists of the called bonds of the United States, it can well happen that multitudes of competent and careful business men may hold such bonds until the next succeeding interest period, in entire ignorance that their redemption has been provided for. A trustee is called upon to exert precisely the same care and solicitude ip behalf of his cestui que trust as he would do for himself; but greater measure than this a court will not exact: Lewin on Trusts *299; Morley v. Morley, 2 Ch. Ca. 2. The authorities referred to in the argument have settled the rule in this state that trustees are not liable beyond what they actually receive, except in cases of gross negligence, and are not responsible when, observing statutory provisions relating to investments, they deal with the moneys intrusted to them in good faith, as men of ordinary prudence and sagacity deal with their own property. Tried by this rule, the appellant ought not to have been subjected to surcharge for interest between November 1875 and February 1876.

A single point remains to be considered. The appellant received the money paid by the state in February, and retained it without reinvestment until after the 1st of April. The auditor charged him with interest from that date, and to this interest during the intervening period was added by- the court. The financial condition of the country since 1873 has been such as to create distrust and inspire caution in the minds of business men of all classes, and in relation to securities of every grade. The report has shown that the 1st of April is the usual time for making investments in mortgages on real estate in Lancaster county. In Worrell’s Appeal, 11 Harris 44, the Orphans’ Court of Philadelphia had allowed a guardian but a single month from the date of their receipt for investing the moneys of his ward. In the opinion of this court, Judge Knox said: “We have, in several recent cases, held that, ordinarily, six months should be allowed for this purpose.” From subsequent decisions, however, it would seem that the time should be such as the circumstances of each particular case would show to be reasonable: Lukens’s Appeal, 11 Wright 356; Hughes’s Minors’ Appeal, 3 P. F. Smith 500. The auditor here allowed the trustee an interval of less than two months. Regard 'being had to the financial situation, the proximity to the 1st of April, and the amount of the fund, the indulgence granted was not undue.

The decree of the Court of Common Pleas is reversed, and it is ordered that the report of the auditor be confirmed.


author: Mr. Justice Paxson

text:
    Farmers’ Mutual Fire Ins. Co. versus Bair & Shenk. Same versus Groff, to use of Bair & Shenk.
    1. The admission of evidence not strictly in rebuttal is in the discretion of the court, and the exercise of such discretion is not reviewable unless for gross abuse.
    2. The allowance of a leading question is within the discretion of the court, and is no ground for reversal.
    3. Where a witness is called to contradict a former witness, who has stated that certain expressions were used, the proper practice is to ask whether such expressions were used, without putting the question in a general form by inquiring what was said.
    4. Susquehanna Coal Co. v. Quick, 11 P. F. Smith 328, explained.
    May 9th 1878.
    Before A&new, C. J., Mercur, Gordon, Paxson, Woodward and Trunkex, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, Nos. 96 and 97.
    Attachment-execution issued by Bair & Shenk and Samuel Groff, to use of Bair & Shenk, against John K. Barr, defendant, and the Farmers’ Mutual Fire Insurance Company of Pennsylvania, garnishee. The garnishee pleaded nulla bona.

    On May 31st 1867, John K. Barr signed an application for an insurance in the defendant’s company for $4000 on his house and furniture. The application was for a policy for the term of three years, from May 31st 1867, at noon, and was approved by the company and duly issued. In the fall of 1869 G. H. Hendrickson, who had become the agent of the company, made a survey of Barr’s property, for the purpose of insuring other buildings which he owned, and about the 1st of May 1870, Barr signed an application for the term of three years, the policy to include the buildings theretofore insured and others, the whole amount of insurance being $8800. This application and the premium, $48.80, Barr handed to Hendrickson, who gave him a receipt, which set forth, “that he will be'insured upon the property specified in said application, $8800, for three years from date, if the same be approved by the direc,tors.” On May 6th 1870, the company issued a policy to Barr, insuring the property designated in his application for the term of three years, from .May 3d 1870. On May 19th 1873, the property was destroyed by fire, and when Barr applied for payment of the loss the company refused, on the ground that the policy had expired.
    At the trial the receipt of Hendrickson was produced, which bore date May 31st 187 0, but the company alleged that the date was a forgery, contending that the receipt was dated May 3d 187 0, which had been altered to May 31st 1870.
    Barr testified: “Mr. Hendrickson made a survey of my property in the fall of 1869, for the purpose of insurance. I gave my note for $195.20, and cash $48.80, to effect an insurance which was to run for three years from the expiration of the old policy; the old policy I have not — the one that expired on May 31st 1870; I think I gave that policy to Mr. Hendrickson, and I think he did not make a new survey of the dwelling, but took it from the old policy. I don’t know that he ever gave, it back to me. It is not in my possession. I have no recollection of Mr. Hendrickson ever returning it to me. The old policy expired on May 31st 1870. The new policy was to expire three years from the expiration of the old one, which would be on May 31st 1873. I do not remember the exact day that I called on Hendrickson and gave him the note and paid him the cash to effect the new insurance, but it was some time in the latter part of April 1870. I was at Mt. Joy; Hendrickson called me across the street and reminded me of the expiration of my old policy of insurance; I then asked him whether I could arrange it that day; that I had proposed going away, and would probably not be home on the 31st of May, when the old policy expired. He said that if I was prepared it could be arranged that day. I mentioned to him about and spoke to him of the time of the expiration of the old policy. He said we could date the receipt on the 31st, on the day of the expiration of the old policy. I paid him $48.80, took his receipt for the amount; receipt dated May 31st, the expiration of the old policy. I signed an application without date or being filed — a blank application; I signed a note with the amount without date, with the understanding and agreement that the policy and the note should correspond with the receipt as to date. * * * Mr. Hendrickson did not return the fifty-five cents, or any other sum, for the unexpired term of the first policy from May 3d to May 31st 1870. I got no benefit of any. allowance for that.”
    Hendrickson, on behalf of the company, testified, in effect, that Barr came to him on May 3d 1870 to make the application, and that it was not in the latter part of April; that witness drew the application on that day, and Barr then signed it; that the date of the receipt had been changed by the insertion of the “1” and the addition of “st;” that these alterations were not in the handwriting of witness; that Barr had received fifty-five cents as an allowance for the unexpired term, and that this was a full return, in proportion to the time the old policy had to run, on the amount insured, according to the rates of the company.
    On cross-examination, Hendrickson testified:
    Q. Did you not state to Mr. Barr in presence of H. B. Hertzler, that his policy would soon expire, that he must not neglect it, to which Barr replied in presence of Hertzler, “ Can’t I fix it now, as I intend going away, and will not be home when it is dueto which you replied it could be fixed now, and did not Mr. Barr then give you $50, for which you gave him a receipt, the receipt marked J. B. L. 1. dating it (four weeks ahead), May 31st, in presence of Hertzler, Mr. Barr at the same time signing the. papers which you laid before him ?
    A. I have no recollection of any such thing. -
    In rebuttal the plaintiff called H. B. Hertzler, who testified as follows:—
    Q. Did Mr. Hendrickson state to Mr. J. K. Barr in your presence, that his policy of insurance would soon expire and that he must not neglect it ?
    A, Yes, sir.
    Q. Did Mr. Barr answer Mr. Hendrickson by saying, “ Can’t I fix it now, as I expect to be away and will not be home when it is due.”
    A. Yes, sir.
    Q. Did Mr. Hendrickson say it could be fixed then ?
    A. Yes, sir.
    Q. Did Mr. Barr hand Mr. Hendrickson then in your presence, $50, for which he gave Mr. Barr a receipt ?
    A. Yes, sir.
    Shown receipt J. B. L. 1. and asked whether that is the receipt to the best of his recollection.
    A. Yes, sir, this is the receipt.
    Q. Was the receipt dated four weeks ahead — May 31st, in your presence ?
    A. Yes, sir.
    Q. State whether in your presence Mr. Barr signed other papers there.
    A. Yes, sir.
    To all the foregoing questions the defendant objected, on the ground that they Avere leading and not properly rebuttal.
    The court, Livingston, P. J., allowed them and noted an exception in each question.
    Bair & Shenk had one judgment in their own right against Barr, and another as the assignees of Groff, Avho had another judgment. The verdict was for them respectively in the sums of $2502.58 and $504.29. The garnishee took this writ and assigned, among other errors, the allowance of the above questions.

      3. M. North and Thomas F. Franklin, for plaintiff in error.—
    The plaintiffs were allowed to prove by Hertzler, when called in rebuttal, precisely what had been proved by Barr in chief. This was error: Stetson v. Croskey, 2 P. F. Smith 230. And all the questions put were leading: Susquehanna Coal Co. v. Quick, 11 Id. 328.

      S. 3. Reynolds, R. W. Shenk and W. Reaman, for defendants in error.
    The admission or rejection of evidence in rebuttal is discretionary, and therefore not the subject of a writ of error: Duncan v. McCulloch, 4 S. & R. 480-482; Columbia Bridge v. Kline, 6 Penna. Law Jour. 317 ; Vandyke v. Townsend, 5 W. N. C. 55. The allowance of a leading question is a matter of discretion, and not the subject of a writ of error: Starkie on Evidence 148.
    May 20th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The assignments of error, from one to seven inclusive, allege that the court below erred in overruling the objections to the questions put to Henry B. Hertzler, a witness on behalf of the plaintiffs below. The questions were objected to on two grounds, viz: 1. That they were not properly rebuttal; and 2. That they were leading. The first does not need an extended discussion. It is sufficient to say that it has been repeatedly held that the admission of evidence not strictly in rebuttal is in the discretion of the court and not error; the latest case being Vandyke v. Townsend, decided at the last term of this court, 6 W. N. C. 55. The exercise of a discretion is not reviewable here unless for gross abuse.

Nor have we any difficulty as to the second ground of objection. While there are instances in the books where judgments have been reversed for the refusal to allow leading questions where the party was entitled to put them, I know of no reversal in Pennsylvania for allowing a leading question. Susquehanna Coal Co. v. Quick, 11 P. F. Smith 328, is not an exception, as in that case there were a number of other assignments of error which were sustained. The reason for this is manifest. The form of a question, whether it shall be put as leading or otherwise, depends not upon an inflexible rule, but upon a variety of circumstances which must of necessity be left to the discretion of the court below. Thus a party may be surprised by his own witness, and after he has placed him on the stand, discover that he is hostile, in which case it is settled law that he may be asked leading questions as if upon cross-examination. The rule is thus laid down in Starkie on Evidence 147 : “ Thus a party’s own witness, who, having given one account of the matter, when called on the trial gives a different account, may be asked by the .party calling him, whether he had given such account, stating it, to the attorney ; and if a witness called stands in a situation which of necessity makes him adverse to the party calling him, counsel may cross-examine him.” The mere manner of the witness when on the stand may be such as to justify the court in permitting leading questions. It is needless to multiply instances. It is said in Sharswood’s notes to Starkie, at page 150, that “ the allowance of a leading question is within the discretion of the court, and not the subject of a writ of error, although the refusal to allow a party to put a leading question who is entitled to do so upon cross-examination isand a number of authorities are cited in support of the text. The same doctrine is laid down in Greenleaf, § 435. We are not obliged to go so far in this case, however. The witness Hertzler was called by the plaintiffs to contradict Hendrickson, a witness called by the defendants, after the ground had been previously laid by the cross-examination of Hendrickson. Thus, taking the first assignment of error as an illustration, Hendrickson had been asked upon his cross-examination: “ Did you not state to Mr. Barr, in presence of H. B. Hertzler, that his policy would soon expire ; that he must not neglect it ?” The ground having thus been laid, the plaintiffs called Mr. Hertzler to the stand to contradict Hendrickson as to this particular matter. How was this to be done ? Clearly by putting the question to the witness in the same language in which it had been put to Hendrickson. Hertzler was therefore asked, “Did Mr. Hendrickson state to John K. Barr in your presence that his policy of insurance would soon expire, and that he must not neglect it?” Nothing less than this would have been just to the witness sought to be contradicted. Nothing less would amount to a contradiction. Unless it is a denial in terms it is no denial at all. I have always understood this to be the practice, and I am not aware of any authority against it. The only case cited in opposition to this view, Susquehanna Coal Co. v. Quick, supra, has no application. In that case the witness, Quick, was not called to contradict anything that another witness had said, but merely to prove what occurred at a conversation. The witness having been asked a question clearly leading, it was very properly held to have been improper. The rule is laid down in Starkie, at page 148, to be: “ So, where a witness is called in order to contradict the testimony of a former witness, who has stated that such and such expressions were used, or such and such things were said, it is the usual practice to ask whether those particular expressions were used, or those things were said Avithout putting the question in general form by inquiring what was said. If this Avere not to be alloAved, it is obvious that much irrelevant and inadmissible matter would frequently be detailed by the witness.”

Had the questions been put in the alternative they Avould have been entirely free from objection. As it is, they furnish no ground for reversal.

The remaining assignments of error were not pressed, and need not be discussed.

The judgment in each case is affirmed.


author: Mr. Justice Trunkey

text:
    Moyer and Brother’s Appeal. Bauman’s Estate.
    Where an endorser of a negotiable note admits his liability at the time of the maturity of the note and accompanies such admission with an oifer to ‘‘arrange the matter” with the holders, and thereafter by his conduct shows that he regards himself as liable, and asks for indulgence, these acts amount to a waiver of notice of demand and dishonor.
    May 9th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunks?, JJ. Sharswood, J., absent.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1878, No. 28.
    Appeal of E. P. Moyer & Brother from the decree of the court, confirming the report of the auditor in the estate of Jeremiah Bauman, deceased.
    The facts, in evidence, were these: On January 4th 1871, Joseph K. Bauman gave to E. P. Moyer & Bro., with whom he was dealing, the following note:
    “$1700. Lancaster, January 4th 1871.
    Ninety days after date I promise to pay to the order of E. P. Moyer & Bro., seventeen hundred dollars, without defalcation, value received.
    Payable a.t First National Bank. Jos. K. Bauman.”
    At the same time, as collateral security for the payment of this note, he gave them the following note :
    “$1700. Lancaster, Pa., January 4th 1871.
    Ninety days after date, I promise to pay to the order of Jer. Bauman (at) seventeen hundred dollars without defalcation, for value received. Jos. K. Bauman.
    Credit the drawer
    Jere. Bauman.
    Endorsed Jere. Bauman.”
    On April 6th 1871 (April 7th being a legal holiday), the former note was sent to Lancaster and presented for payment, dishonored and duly protested. The latter note, falling due on the same day, was not protested, and whether payment was demanded and notice given does not appear, except as matter of inference from the acknowledgment of liability and promise to pay, as is to be extracted from the correspondence which took place between Jeremiah Bauman and E. P. Moyer & Bro.
    On April 6th 1871, Jeremiah Bauman wrote to E. P. Moyer & Bro. the following letter :
    “ Lancaster, April 6th 1871.
    Messrs. E. P. Moyer & Bro.
    dents: I am sorry to say that Joseph was compelled to let his note go to protest to-day, for which you hold mine as collateral. How can I arrange the matter with you, as I am not prepared to pay it right away ? Please let me hear from you.”
    On this a correspondence relative to the payment of the claim by Jeremiah Bauman arose, and from time to time he wrote letters to E. P. Moyer & Bro., in the following language:
    July 25th 1871. “J. K. Bauman’s affairs are not yet settled up by his assignee. Before that is done, the amount remaining due you by him cannot be determined.”
    January 10th 1872. “On inquiry to-day I am informed that J. K. B.’s assignee contemplates making a dividend about the first of April, when you may expect to receive some money on account of your claim. I will not give any notes, but will endorse as heretofore, if it will be of any service to you.”
    June 22d 1872. “ I received your letter a few days ago, since which I called on J. K. B.’s assignee’s attorney to ascertain when his affairs would be settled. He informed me that about the 1st of September a distribution would be made, when his indebtedness to you will be known. I will then endeavor to arrange the matter with you. At this time it keeps me busy to manage my own affairs, as we are not turning any leather to market yet. Bark is coming in so fast that it keeps me busy to raise funds to pay for it.”
    April 7th 1873. “I received your letter some days ago. In reply have to say that, having failed in disposing of some property that I offered for sale, with a view of raising funds, I am not prepared to pay anything on J. K. B.’s account; it is as much as I can do to meet my own liabilities at present. I have fifteen shares Lancaster City Eire Insurance stock, par value, $50 per share, which I will exchange with you for the note if you wish it.’
    Jeremiah Bauman died on the 3d day of October 1875, leaving a will. The executors filed an account of their administration, and at the audit for distribution of the balance a claim was made on the note above set forth, on the ground that the deceased had so acknowledged his liability to pay as to dispense with the necessity of proving demand, refusal and notice. The auditor rejected the claim, being “of the opinion that there is no such clear, absolute and unconditional promise as dispenses with the proof of presentment and notice of dishonor.” To this decision exceptions were filed, but overruled by the court, which confirmed the auditor’s report; whereupon this appeal was taken.

      H. JR. Fulton, Wm. Aug. Atlee and Sharp Alleman, for appellants.
    A subsequent promise to pay, or an acknowledgment of liability, amounts to a waiver of a want of due notice: Levy v. Peters, 9 S. & R. 125; Sherer v. Easton Bank, 9 Casey 134; Loose v. Loose, 12 Id. 538 ; Uhler v. Farmers’ National Bank of Bucks Co., 14 P. F. Smith 406. This latter case expressly decides that the promise need not be unconditional. See also Reynolds v. Douglass, 12 Peters 497; Byles on Bills *237.

      N. FümaTcer and JD. Gc. Fshleman, for appellee.
    The promise must not be conditional, or if so, must have been accepted: 1 Story on Promissory Notes, sect. 187; 1 Parsons on Notes and Bills 600. The letters, if not mere requests for time, under the belief that the note was protested, are mere proposals for settlement and create no liability. Knowledge of the non-payment is not knowledge of non-presentment, and a promise to be binding must be made with full knowledge of laches: 1 Parsons on Notes and Bills 605; Richter v. Selin, 8 S. & R. 425, 437; Loose v. Loose, supra; Uhler v. Bank, supra; Walker v. Rogers, 40 Ills. 278; Arnold v. Dresser, 8 Allen 435; Tardes v. Boyd, 26 Gratt. 631; Story on Partnership, §275; 2 Smith’s Leading Cases, 7 Am. ed. 78. The burden of proof is upon the plaintiff: Morgan v. Peet, 32 Ills. 288; Farrington v. Brown, 7 N. H. 271; Trimble v. Thorne, 16 Johns. 153.
    May 27th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

To correctly interpret the letter of April 6th 1871, it is well to keep in view the then positions of the parties to the notes. Joseph K. Bauman was the maker and E. P. Moyer & Bro. were the holders. The notes of same date, for like time, for same amount, and one was given and held as collateral security for the other. The one given for the debt was payable at the First National Bank; the other at Lancaster, the place where both were made. The latter Was payable to Jer. Bauman, who endorsed it to the holders. In legal computation of time, the notes matured on April 7th 1871, but that being a public holiday, by virtue of the statute (Pamph. L. 1869, p. 26), the holders could make demand and give notice on that, or the preceding day, at their option. The one held for the debt was protested on the 6th. The same day Jer. Bauman writes from Lancaster, where both were payable, to E. P. Moyer & Bro., Philadelphia: “I am sorry to say that Joseph was compelled to let his note go to protest, for which you hold mine as collateral.” He knew the other note was the one owing by the maker, that it was protested, and that his own endorsement was held as collateral security. With full knowledge of the facts, thus explicitly stated, he adds, “ How can I arrange the matter with you, as I am not prepared to pay it right away.” Was that a trick to fend protest of the collateral, or was it an acknowledgment of liability and request for forbearance ? Surely the latter. In the light of the circumstances how can his words admit of other interpretation ? But were his meaning doubtful he himself gave the key to unlock it, in his subsequent letters recognising his liability. January 10th 1872, he wrote, “I will not give my notes, but will endorse as heretofore, if it will be of any service to you.” Again he wrote that the assignee of J. K. Bauman would make distribution about the 1st of September; adding, “I will then endeavor to arrange the matter with you.” April 7th 1873, he wrote that he had failed to raise funds and was not prepared to pay. These letters, though not containing an express acknowledgment or promise, show how he understood his relation to Moyer & Bro. after April 6th 1871. They are not the language of one who denied a claim, or had intended to mislead the holder into a false belief that he would pay the note. The act of Jer. Bauman, on the day of the protest of J. K. Bauman’s note, must be considered as an admission of his liability to the holder and promise to pay it.

Was such act a waiver of demand and notice? “ In strictness of terms a waiver of protest is an agreement made before or at the time of maturity of the note, and a promise to pay after maturity, notwithstanding there had been no protest, is a new undertaking.” Per Agnew, J., Uhler v. The F. N. Bank, 14 P. F. Smith 406. Yet, not adhering to strictness of terms, in Sherer v. The Easton Bank, 9 Casey 134, it is said: “ that a subsequent promise to pay the note by an endorser, who has full knowledge of all the facts, amounts to a complete waiver of the want of due notice, is settled, and settled as matter of law. So does a part payment.” The promise need-not be expressed in so many words. It is sufficient, if by reasonable intendment and interpretation, the language imports, or naturally implies, a promise to pay it. Story on Prom. Notes, § 364. After maturity of the note, words or acts which would not be sufficient to amount to a waiver, or new undertaking, may be amply sufficient to form a strict waiver, when uttered or done before or at maturity, for the obvious reason that in the latter case the holder may be misled. Demand and notice may be waived by an act of the endorser or drawer, calculated to put the holder off his guard, and preventing him from treating the note as he would otherwise have done. A parol promise to pay, made at the time of, or subsequent to, the endorsement; a request by the endorser for forbearance; a declaration by the endorser of a check to the holder, that the maker can pot pay, that the latter has made an assignment and has therein preferred him; an inquiry by the holder of the endorser, on the day the note matured, if it would be best to call on the makers, and reply that it would be of no use; respectively have been held as waiver of demand and notice. No general rule can be laid down as to what words or acts will amount to a waiver, except they must be such as fairly to lead a reasonable man to believe that the en: dorser did not wish the regular course, in making demand and giving notice, to be pursued. Unless such be the direct and natural inference from the words or acts, and they be so clear and pointed as to leave no reasonable doubt as to what was intended, they are not within the rule: 1 Parsons on Notes and Bills 582-594.

Whether a promise, request or acknowledgment was made, and whether made with full knowledge of all the material facts, are questions of fact. The construction to be put on facts found is a question of law. An auditor’s finding of facts will not be set aside, save for strong reason. As already appears wre accept the auditor’s report of facts, except his inference that there was no waiver of pro? test. He seems to have regarded the letter of May 6th 1871, as if subject to principles applicable to matters occurring after maturity of the note, and written in ignorance of the facts. Without recapitulation, we are impelled to a different conclusion, upon which the claim of E. P. Moyer & Bro. should be allowed.

Decree reversed at costs of appellees, and record ordered to be remitted to the Orphans’ Court for further proceedings. ’ " •


text:
    Folmer’s Appeal. The Penn Mutual Relief Association versus Catherine F. Folmer and William Potee and Wife.
    , 1. AVhile it is the undoubted rule, that the sound interpretation and meaning of a statute,, on a view of the enacting clause and proviso taken and construed together, is to prevail, yet' if the principal object of the act can be accomplished and stand under the restriction of the proviso, the same is not to be held void for repugnance.
    2. The constitution of a relief association provided that “ this association shall have for its object the payment to the family of the deceased member of so many dollars as there are members pf the association;” and further, that the assessment “shall be paid to his legal representatives or to such person or persons as he may have designated or appointed in writing. * * * Provided always, that when such member shall leave a widow or children, he shall have no power to deprive her or them of the benefits specified in this article, by will or otherwise, but the same shall be paid to her or them absolutely.” The application of the assured was made in favor of a niece with whose family he was living, but at the time of his death he had a married daughter living apart and independent of him. The court below awarded the fund arising, from the assessment to the daughter. Held, that it should have been awarded to the niece, as the acceptance of the application by the association was a contract on its part to pay the money to the niece on the death of the assured.

      May 10th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxsón, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas of York county: Of May Term 1878, No. 193. In Equity.
    Appeal of Jacob Folmer, guardian ad litem of Catharine F. Folmer, from the decree of the court.
    This was a bill of interpleader wherein the Penn Mutual Relief ■Association of York, Pennsylvania, were plaintiffs, and Catharine F. Folmer and William Potee and Catharine, his wife, were defendants. The question to be determined, was the person duly entitled to receive the amount of a sum of money accruing by an assessment levied upon the members of the Penn Mutual Relief Association of York, Pennsylvania, upon the death of one Frederick Schwehr, said fund, to wit, the some of $1072, being claimed respectively by the said Catharine F. Folmer, by reason of - her being the appointee in favor of whom the said Frederick Schwehr in his lifetime made application for membership in said association, and by Catharine, or Kate Potee, wife of the said William Potee, by reason of her being a daughter of the said Frederick Schwehr.
    The court below, Wickes, A. L. J., made a decree awarding said fund to Mrs. Potee, and from this decree this appeal was taken. The other material facts will be found fully stated in the opinion of this court.

      George W. McJElroy and George Msher, for appellant.
    The certificate of membership granted to Schwehr was in the nature of a life insurance policy, and like it a contract, in the construction of ■which the motive that led to its execution, as well as the object intended to be effected by it, should be considered. The motive manifestly was to make a future provision for Catharine Folmer, and the object the payment of the fund to her at his death, as his appointee. In sect. 2 of art. 6, the words “ shall have no power * * * by will or otherwise,” in the proviso, mean simply that the insured could not by will, devise or bequeath, or in his lifetime, assign, transfer or pledge the fund, payable after his death, to any other person than those specified. Not having done so, how can the proviso effect what was done at the time the insurance was made. There was a definite promise on the part of the association to pay to the appointee of Schwehr “in favor of whom” the insurance was effected, and no other meaning can be given to the contract. A rational interpretation of the charter of the association does not make Mrs. Potee a member of the assured’s family.

      Blackford and Stewart, for appellees.
    Catharine Potee was the only child of the assured, and she alone constituted his family, within the meaning of the charter of the association, and to her alone was the money payable. The very object of the creation of the association was to provide for the family of assured, and the right of appointment only existed subject to the right of the family. So long as the assured had a wife or family, he had no control over the benefits to arise from his insurance; it was only on the event of having no family that his appointment was valid. The effect of the proviso in sect. 2 of art. 6, is to limit and abridge the authority of the association to contract, and a limitation of authority by a proviso is a negation thereof: The Commissioners of Kensington v. Keith, 2 Barr 218. In a charter creating a private corporation, the proviso must control: Dugan v. Bridge Co., 3 Casey 303; Packer v. Sunbury and Erie Railroad Co., 7 Harris 211.
    October 7th 1878. .
   Mr. Justice Woodward

delivered the opinion of the court,

Frederick Schwehr became a member of The Penn Mutual Relief Association on the 21st of April 1873. At that time the constitution of the corporation, which had been adopted in April 1869, was in force. The second article was in these words: “ This association shall have for its object the cash payment to the family of a deceased member, within forty days after death, of as many dollars as there are members of the association.” By the second section of the sixth article, it was declared: “ On the death of a; member, a sum equal to one dollar for each enrolled member on the books of the association, at the date of his death, shall be paid to his legal representatives, or to such person 'or persons as he may have designated in writing, either by his own hand or that of another person by his direction or request. Provided always, that where such a member leaves a widow or children, he shall have no power to deprive her or them of the benefits specified in this article by will or otherwise, but the same shall be paid to her or them absolutely.” On the 5th of November 1873, the constitution was amended by virtue of a decree of the Court of Common Pleas of the county of York. The second article was so altered as to read thus: “ The object of this association shall be the relief of widows, orphans or families of deceased members.” The sixth article was wholly changed. Its provisions were supplied by the following provisions of the fifth amended article: “ Section 1. On the notification of the death of any member to the secretary of the association, * * * an assessment shall be made upon each member for a sum equal to one dollar and ten cents, of which one dollar shall be applied to the relief of the widow, orphans or family of such deceased member.” Section 2. “ Within ten days after the assessment shall have been paid to the secretary, the sum due — not exceeding one dollar from each member at the time of his death — shall be paid to the widow, orphans or family of the deceased by the proper officers.”

In filling up the form of his application, Mr. Schwehr declared that the benefits from his membership should accrue to Catharine E. Eolmer. Tier name was added to the words, “In favor of,” which were contained in the printed blank in use by the association in April 1873. The beneficiary was the daughter of Jacob Eolmer, Avhose Avife was the sister of the deceased Avife of Mr. SchAvehr. When the application for membership Avas made, and down to the time of his death, Mr. Schwehr lived at the public house kept by Mr. Eolmer in the village of Hanover. Catharine Potee, one of the defendants, is the daughter and only child of Mr. SchAYehr, and at the date of the application was married and living Avith her husband. The benefits accruing from the association were claimed by her after her .father’s death, and under the construction given to the terms of the charter, her claim Avas sustained by the Court of Common Pleas.

It is entirely certain that the contract which was found by the decree to be established, Avas one which Mr. Schwehr did not intend to make. There are no facts Avhich tend to shoAV that he would have sought membership in the association if he had believed that his daughter Avould engross its benefits. They Avere living apart. She had a home and family of her OAvn. So far as he had domestic relations, he was a member of the family of Jacob Folmer. It is true there was the tie of blood between them. As his legal representative, she inherited his undevised and unbequeathed estate. But there Avas no intercourse or connection involving protection on one side or dependence on the other. The provision he designed to make was in favor of Catharine Eolmer, the niece of his dead AA'ife, the child of his sister-in-laAv, and a member of the same family with which he lived. To secure such a provision to an identified beneficiary Avas the very purpose of the contract. And the purpose Avas expressed Avith absolute directness. The association accepted the proposition made to them, and bound themselves to pay the fund to become due at his death, not to the legal representatives of the applicant, nor to his daughter, but “for the use of the person,” in the Avords of the sixth article of the constitution as it originally stood, Avhom he had “ designated or appointed in Avriting.” As the charter terms were construed by the Common Pleas, a new contract Avas set up in lieu of that Avhich Mr. Schwehr actually made, his motive for making it was disregarded, and the object he meant to attain was wholly subverted. To Avarrant an interpretation productive of such grave mischief, the meaning of the Avords interpreted should be unmistakable.

Mrs. Potee’s claim is based on the terms of the proviso to the second section of the sixth article-of the charter of 1869, Avhich declared that where a- member of the association should leave a widoAV or children, he should “ have no poAver to deprive her or them of the benefits specified in this article, by will or otherAvise,” but that “ the same should be paid to her or them absolutely.” A proviso is defined to be something engrafted upon a preceding enactment, for the purpose of taking special cases out of the general enactment, and providing specially for them: Potter’s Dwarris 118. It is to be strictly construed; it takes no case out of the enacting clause which is not fairly within the terms of the proviso: United States v. Dickson, 15 Peters 141. What were the “special cases ” intended to be taken out of the operative clause of the sixth article of this charter ? Two classes of persons entitled to benefits on the death of members were specified. They were, first, the legal representatives of the members, and, second, such persons as the members, at the time of uniting with the association, “ may have designated or appointed in writing.” If the prohibition embodied in the proviso must be extended to every case where a member may leave-a wife or child, a provision in favor of any beneficiary would in any such case become a nullity. The widow and child would take under the charter, and ayouM take in every instance as a legal representative. The effect would be to strip from the charter the clause in favor of “a person or persons designated or appointed” by a member. It does not seem credible that in framing the constitution, the association could have had such a result in contemplation. The whole instrument is to have such fair and rational construction as to make all its provisions operative and efficient. As was said in 1 Kent’s Commentaries 463, “ the principle undoubtedly is, that the sound interpretation and meaning of a statute, on a view of the enacting clause and proviso taken and construed together, is to prevail. If the principal object of the act can be accomplished, and stand under the restriction of the proviso, the same is not to be held void for repugnancy.”

A meaning may be extracted from the terms of the sixth article consistent with the maintenance and enforcement of the actual contract made by Mr. Schwehr with the association. The proviso denied to any member the right to deprive his widow or children of benefits by will or otherwise. The words used implied the ownership of the fund and the right to control it at the time of the member’s death. They implied also such ownership and such right of control during his lifetime. The benefits to which the proviso referred, constituted a fund in the name of the member, acquired by and belonging to himself, and transmissible to his legal representatives at his death, which the charter forbade him to sell, pledge or bequeath to the prejudice of his widow or any child who should survive him. This was not such a fund. It had never accrued to Mr. Schwehr, had never been claimed by him, and had never been subject to his control. In the very act of creating it, he had placed it beyond his own reach. It never for a moment became part of his estate which his heirs could on any ground or by any device absorb. A restriction against a gift, assignment or bequest by a member of rights secured to another than himself, could not have been the object of the charter, for it could not have entered the minds of its framers that he would ever attempt to exercise' dominion over property to which he had no claim. The prohibition was intended to apply to the first-class of beneficiaries — members whose interests, at their decease, would survive to their legal representatives. To carry it further would be to mutilate the charter as well as to destroy contract rights.

Undoubtedly it has been the controlling idea of this association from the outset to provide for the families of members. This is manifest from the declaration of the object of the organization in the second article of the original constitution, and in the second section of the fifth amended article. Benefits were to be paid “ to the family” in the first instance, and “to the widow, orphans or family” in the second. Possibly an insurance for the benefit of an entire stranger for a consideration paid to the member, or even to secure the debt of a creditor, could not be sustained under the charter. Even then, however, it might be a question whether the benefits would fall to the heirs, or the contract would be held to be ultra vires and simply void. Such a question does not now arise. Catharine Eolmer was within the circle of the family of Mr. Schwehr, and under his contract with the association and a rational interpretation of the charter, she has a right to the fund in controversy.

It is not necessary to 'inquire into the effect of the amendments in the second and fifth articles of the constitution. The changes made were in some respects material, but the rights of the parties must rest on the provisions which were in force when Mr. Schwehr became a member of the association.

The decree of the Court of Common Pleas is reversed, at the costs of the appellees, and it is noAV ordered and adjudged that the principal sum in controversy in this suit, amounting to $1072, with the interest accrued and due thereon, to be ascertained by the prothonotary of that court, be paid to the appellant, Jacob Eolmer; guardian ad litem of Catharine E. Eolmer, by The Penn Mutual Relief Association of York, Pennsylvania, the plaintiffs and appellees.


text:
    Magraw, Administrator, versus Irwin.
    1. A non-resident cannot maintain a suit in the courts of this state against a foreign administrator who has no assets in this state.
    2. M., who resided in Maryland, and was administratrix, c. t. a., received assets of the estate of her testator, consisting of stocks and bonds of Pennsylvania corporations, which were subsequently awarded to her as a legatee under the will by a Maryland court. Upon the death of M., an administrator, d. b. n., was appointed by a Maryland court. He did not take out any letters in Pennsylvania, but being temporarily in this state suit was brought against him by a resident of Missouri, and it was sought to charge the administrator with said stocks and bonds on the ground that they were assets left by the testator. Held, that in this state he was not chargeable with the assets thus administered' and distributed, and the suit could not be maintained.
    3. The doctrine of Swearingen v. Pendleton, 4 S. & R. 339, and Evans, Administratrix, v. Tatem, Id. 252, dissented from, and Moore v. Fields, 6 Wright 467, explained.
    May 10th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 4.
    Assumpsit by Joseph C. Irwin against Adam R. Magraw, administrator d. b. n. c. t. a. of Henry S. Magraw, deceased.
    The facts are stated in the opinion of this court.
    At the trial, the defendants submitted the following points, to which are subjoined the answers of the court, Livingston, P. J.
    1. Under the law and the evidence in this case the plaintiff is not entitled to recover.
    Ans. “ Under the law and under the evidence, as admitted by the court, we answer this point negatively.”
    2. The plaintiff has not shown that letters of administration on the estate of H. S. Magraw, deceased, have been granted to the defendant in- the state of Pennsylvania, nor any act of administration by him in that state, and the verdict must be for the defendant.
    Ans. “ Plaintiff has shown, by the testimony admitted, that letters of administration, de bonis non, were granted to A. R. Magraw, on the estate of H. S. Magraw, deceased, in the state of Maryland. The administrator does not plead a settlement of his accounts and payment, or distribution of the assets of the estate, nor want of assets, and as under the decisions of the Supreme Court, reported in Swearingen v. Pendleton, 4 S. & R. 389 and Evans, Administratrix, v. Tatem, 9 S. & R. 259, and in Dowdale’s case, 6 Co. 46, as well as the decision of this court, in the opinion of my late associate, his Hon. Judge Hayes, filed in this case, after an experience of at least forty years as judge, ‘a suit may be maintained in this state for a debt due from a decedent’s estate, against an administrator who has taken out letters of administration in another state in which the decedent died, when the administrator is found, and service can be had upon him in the state in which such suit is entered, no matter what the intent of the administrator was in going into the state in Avhich suit is brought against him,’ Ave feel bound to negative this point, and say, that the residence of the administrator in another state, Avhen suit is brought against him, and service of the process is had upon him in this state, is no bar to a recovery against him as the administrator in this action.”
    The verdict was for plaintiff for $1854.26, and after judgment the defendant took this Avrit and assigned for error the answers to the above points.

      T. JE. Franklin and S. II. Reynolds, for plaintiff in error.
    In England it is Avell settled that a foreign administrator cannot sue on his bond in her courts on a contract of his decedent: 1 Wms. Ex. 304; 2 Id. 1414; Story’s Conflict of Luw, sect. 574. By the Act of 1705, 1 Sm. LaAvs 33, foreign letters of administration when produced here would enable administrators to bring actions in our courts, and although said act did not provide for their liability to be sued, such suits were recognised in Swearingen v. Pendleton, 4 S. & R. 389, and in Evans, Administratrix, v. Tatem, 9 Id. 252; but in Brodie v. Bickley, 2 Rawle 437, and Mothland v. Wireman, 3 P. & W. 187, the authority to do so was questioned. By the Act of March 15th 1832, Pamph. L. 136, hoAvever, the Avhole policy was changed, and the right to sue by a foreign administrator Avas taken away: Sayre v. Helme, 11 P. F. Smith 299.
    As a foreign administrator cannot maintain an action in our courts, can it be successfully argued that he is bound to defend one brought here by a foreign creditor, by a writ served here on him while a resident of Maryland, on a transient visit to Pennsylvania ? To assert this would be to attribute to our laAv a change from unexampled comity to a most extreme Avant of comity, which could have no avail, as the courts of Maryland or of any other state would unquestionably repudiate the binding character of a judgment obtained in a court of Pennsylvania under these circumstances.

      Amos Slaymalcer and H. M. North, for defendant in error.—
    The general rule that an executor or administrator appointed in one state is not liable to be sued in his official capacity in another state, has never been accepted in Pennsylvania: Swearingen v. Pendleton, 4 S. & R. 392; Evans v. Tatem, 9 Id. 252; Bryan v. McGee, 2 Wash. C. C. Rep. 337. A foreign administrator may sue in Pennsylvania since the Act of 1832: Moore v. Fields, 6 Wright 467. It is time that by the Act of 15th March 1832, sect. 6, it is provided that “no letters testamentary, or of administration, or-otherwise purporting to authorize any person to intermeddle with the estate of a decedent, which may be granted out of this Commonwealth, shall confer upon such person any of the powers and authorities possessed by an executor or administrator under letters granted within this state. But now by a series of subsequent acts, the powers of executors and administrators under letters issued in other states, with regard to assets in this state, of the character of those specified in the inventory of the estate of H. S. Magraw, deceased, are put upon the precise footing of those powers, as exercised under the Act of 1705 : Act of 14th April 1835, sect. 3; Act of 16th June 1836, sect. 3; Act of 12th March 1842, sect. 5; Act of 15th May 1850, sect. 8; Act of 8th April 1872, sect. 1. But even if the general rule prevails here still, an executor or administrator who has assets in this state is liable to be sued in the courts of the state by any creditor here; Story’s Conflict of Laws, sect. 514 ; Wms. on Ex. 1641; Mothland v. Wireman, supra; Dent’s Appeal, 10 Harris 514; Parker’s Appeal, 11 P. F. Smith 478; Gulick v. Gulick, 33 Barb. 92; Campbell v. Tousey, Ex’r, 7 Cowen 64. And it is not necessary that the creditor should.be a resident here: Dent’s Appeal, supra; Alfonso’s Appeal, 20 P. F. Smith 347 ; Morgan v. Neville, 24 Id. 52; Paine v. Lester, 44 Conn. 196; 17 Am. L. Reg. 132.
    June 10th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

The contention in this case is one of jurisdiction. The facts necessary to understand the case are these: Henry S. Magraw, a resident of Cecil county, Maryland, died testate in February 1867. By his will he devised and bequeathed his entire estate to his wife Emily, and appointed his brother Robert his executor. The latter died before the death of the testator. The will was duly proved and letters of administration, with the will annexed, were granted to his widow Emily by the Orphans’ Court of Cecil county, on the 16th of March 1867. She afterwards filed an inventory and appraisement of the goods and chattels of the decedent. It was examined and passed; and the court ordered that she take the same at the appraisement. A portion of the assets contained in the inventory were certain bonds and stocks of divers corporations incorporated under the laws of the state of Pennsylvania, and having their situs therein. In March 1870 Emily died, and letters of administration de bonis non cum testamento annexo, were granted by the Orphans’ Court of Cecil county to the plaintiff in error, then, and now, a resident of that county. He did not take out any letters of administration in Pennsylvania, but being temporarily here, this suit was commenced against him as administrator of Henry S. Magraw, by the defendant in error, a resident of the state of Missouri. Thus it appears both parties were non-residents of this state. The plaintiff in error plead specially that he “is and was, before and at the time of the commencement of this suit, a resident of the state of Maryland, and that he has not, at any time, assumed possession or control, or administered or disposed of any goods or chattels, rights or credits which were of the said Henry S. Magraw, deceased, in the state of Pennsylvania, and that he has not at any time had or received authority so to do.”

On the trial of the cause no evidence was given to contradict the averments in his plea other than the inventory filed by the preceding administratrix. The only assets belonging to the estate of Henry S. Magraw, that were proved to have come into his hands, were the proceeds of a judgment collected in California. It was not shown that any assets, belonging to said estate, had been in the state of Pennsylvania after the appointment of the plaintiff in error as administrator. He, therefore, had not exercised authority over any within this state, nor had he removed any therefrom.

The general doctrine of the common law now recognised both in England and in America, is that no suit can be brought or maintained by any executor or administrator, or against any executor or administrator, in his official capacity, in the courts of any other country than that from which he derives his authority to act in virtue of the probate and letters of administration there granted to him. Story’s Conflict of Laws., sect. 513. Hence it is said in sect. 514, of the same, “ it is exceedingly clear that the probate grant of letters testamentary or of letters of administration in one country, give authority to collect the assets of the testator or intestate in that 'country pnly, and do not extend to the collection of assets in foreign countries; for that would be to assume an extraterritorial jurisdiction or authority, and -to usurp the functions of the foreign local tribunals in those matters.” It must be conceded that this doctrine is in conflict with Swearingen v. Pendleton, 4 S. & R. 389, and Evans, Administratrix, v. Tatem, 9 Id. 252. The former decided in 1828, the latter in 1823. In Brodie v. Bickley, 2 Rawle 431, Mr. Chief Justice Gibson was constrained to characterize the authority of an administrator, under letters granted in a sister state, to meddle with the assets here, as an anomaly produced by an unexampled spirit of comity in the courts of this state, which would probably be attended with perplexity and confusion. This was followed by Mothland v. Wireman, 3 P. & W. 185, decided in 1831, in which it was held that an administrator was not chargeable with assets of the intestate in another state of which he may have obtained possession; and that administration conferred on the administrator rights, and created liabilities co-extensive only, with the jurisdiction which conferred it. In order to give legislative sanction to this view, the sixth section of the Act of 15th March 1832, declared “no letters testamentary or of administration or otherwise, purporting to authorize any persons to intermeddle with the estates of a decedent, which may be granted out of this Commonwealth, shall confer upon such person, any of the powers and authorities possessed by an executor or administrator, under the letters granted within this state.” It was however declared by the 8d section of the Act of 16th June 1836, Purd. Dig. 420 pi. 80, that this prohibition should not apply to shares of stock in any incorporated company within this Commonwealth; and by the 8th section of the Act of May 15th 1850, Purd. Dig. 421, pl. 82, that it should not apply to any loan or loans of any incorporated company within the same. Hence, by virtue of the appointment of Emily Magraw as administratrix in Maryland, she had a right, under the laws of Pennsylvania, to withdraw from the latter, the stocks and bonds in question. Such withdrawal worked no injury to any of our citizens, for no one was a creditor of the estate. Nor did it deny any right or privilege to the citizen of another state, for none such was then here, holding any claim against the estate. Having put the stock and bonds in the inventory, filed in the Register’s Court of Cecil county, she thereby subjected them to the jurisdiction of that court. That court then having examined and passed’the same and allotted the property to her, as devisee and legatee, it was a final administration of that portion of the estate. By a regular and valid decree, those assets were taken out of her hands as administratrix, and given to her as legatee. That decree stands unappealed from and unrevoked. Its conclusive effect cannot be questioned in this collateral proceeding. It therefore follows that the succeeding administrator, the plaintiff in error, cannot be chargeable, either here or elsewhere, with the assets thus administered and distributed. He is no more chargeable therein than if the same had been paid to a creditor of the estate under a decree of the proper court, before his appointment.

It is true in Moore v. Fields, 6 Wright 467, decided in 1862, it was held that one appointed administrator in New York might, by virtue thereof, maintain an action in this state to recover assets, which his preceding administrator in the same estate had received in New York and brought into Pennsylvania. The right to recover was put on the ground that the assets had not been subject to administration in this state. Hence, in Sayre v. Helme, 11 P. F. Smith 299, it was held that executors acting under letters from another state could not maintain an action in this state. It was there said the recovery in Moore v. Fields “was sustained on its own peculiar circumstances.”

The right to maintain the action in this case was urged by reason of the testator having left assets in this state. That view fails to give due effect to the disposition that had been'made of them prior to the appointment of the plaintiff in error as administrator. The learned judge, therefore, erred in not affirming the points covered by the first, second and fifth assignments. This is decisive of the case. Judgment reversed.