text:
    Leedom versus Lombaert et ux.

    1. A testamentary trastee of a fund for the use of his wife and children for life, which after the death of both was to go to the children, applied to the Orphans’ Court, the children being minors without guardians, having had no notice of the application and not represented, for authority to mortgage ; after report of an auditor that his petition should be granted, a decree was so made, the trustee to give security to be approved by the court: Held, that a bond endorsed by the two associates “ approved,” and filed in the Orphans’ Court, was conclusive evidence of approval; and parol evidence that it was not approved by the court was inadmissible.
    2. The bond was statutory and it is presumed that it was examined and passed on as part of the proceedings, before it was approved and filed.
    3. The Acts of Assembly requiring such security are directory and the want of security will not avoid a sale or mortgage.
    4. Decrees of the Orphans’ Court cannot be impeached in a collateral proceeding unless for want of jurisdiction appearing on the record or for fraud.
    5. That the record did not show that all the parties had notice of these proceedings would not affect the right of the trustee to execute the mortgage.
    6. Parol evidence was inadmissible to impair the effect of the record.
    7. The mortgage reciting the devise, the proceedings of the Orphans’ Court, that the money to be raised under it was for the improvement of the trust estate, &c., was made to Forrest in fraud of the trust, as security for individual debts of the trustee to him. Nine months afterwards Forrest assigned to the plaintiff, who paid the money in the presence of the trustee, both Forrest and the trustee inducing her to believe that Forrest was a bona fide holder for value, that the trustee had no set-off, and that the money was not to be misapplied, &c. In a scire facias on the mortgage against the trustee, it not appearing that the cestuis que trust were making defence, Held, that he was estopped from setting up his breach of trust against a bpnfi fide purchaser.
    8. At the close of the evidence the court said to counsel, that as there was no evidence of notice to the plaintiff that Forrest was not a bong, fide holder of the mortgage, &c., counsel in consequence need not address the jury; the court afterwards submitted the question of notice to the jury: Held, that the statement of the judge did not preclude counsel from addressing the jury and there was no cause for reversal.
    January 18th 1876.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1876, No. 43.
    This was a scire facias sur mortgage, issued March 17th 1874, by Herman Lombaert and Sarah his wife (in her right), assignee of John F. Forrest, against Augustus B. Leedom, trustee. The pleas were : nil debit, payment, set-off with leave, &c., non est factum, and two special pleas — one averring want of consideration, the other want of authority to execute the mortgage. The mortgage was dated December 4th 1872; it was from Augustus B. Leedom, trustee under the will of Samuel Leedom, deceased, to John F. Forrest, to secure a bond of same date conditioned for the payment of $5500, with interest in three years, with privilege to the mortgagor to sue it out on default of the payment of interest for thirty days. The mortgage was assigned September 17th 1873, to Sarah Lombaert.

      Samuel Leedom, by his will, dated April 24th 1871, and proved March 18th 1872, devised to his son, Augustus B. Leedom (the defendant), a farm, mill and water-power in Haverford township, Delaware county, with all the stock, farming utensils and personal property thereon : “ In trust to manage and have full charge and control of the same, and conduct the business thereon during his natural life, for the use, benefit, and behoof of his wife Hannah, and her lawfully begotten children by my said son, Augustus B., and for the use, benefit, and behoof of the said children, after the death of said Hannah, for their support, education, and maintenance, and for establishing said children in business, in the discretion of my said son Augustus B., and out of the profits thereof, from time to time, to make such investments or purchase such other real or personal property as he may think proper, to hold for the same uses and purposes, and should my said son, Augustus B., die before his wife Hannah, then I do devise and bequeath said real and personal estate, so held in trust, as aforesaid, to his said wife Hannah, to hold the same to her, for her use and benefit, and for and during the term of her natural life, and from and after the death of my said son, Augustus B., and his said wife Hannah, I do give and devise and bequeath, all said real estate, and any other real estate so held in trust, as aforesaid, and all the remainder of said personal estate, to all the lawfully begotten children of my said son, Augustus B., to be equally divided between them, share and share alike; and should any of said children be dead, leaving children, then such children to take the same share that the deceased parent would have taken, if living ; and in consideration that my said son shall undertake the trust hereby committed to him, and perform the same, he shall be allowed a reasonable support and maintenance for himself and family out of the said trust estate, for his personal services rendered.”
    On the 5th of July 1872, A. B. Leedom presented a petition to the Orphans’ Court of Delaware county, setting out the foregoing devise in totidem verbis ; and further, that the real estate was much dilapidated, and required repairs to the houses and sawmill, and that the personal estate in his hands and under his control as trustee was insufficient for the improvement and repairs of the real estate, and for the purposes necessary to carry out the trust. With the petition he exhibited a true and perfect inventory and conscionable appraisement of all the personal estate whatever in his hands as trustee. The prayer was that the court would order the mortgage of the real estate, or so much thereof, and for such a sum, as to the court should appear necessary for its improvement and repairs, and for the purposes of the business of the trust.
    William J. Harvey, Esq., was thereupon appointed auditorio take testimony and report the facts, together with his opinion.

      He reported that the real estate was much dilapidated, and required repairs to the houses and mills, and that the estate in the’ hands and under the control of the trustee was insufficient for that purpose and for the purposes of the business necessary to carry on the trust. The auditor then stated the particular repairs and improvement which were needed, and reported that to make them would require $5500. He recommended that the trustee be authorized to mortgage the real estate for that sum. He further reported that the trustee’s wife and a son, above twenty years of age, appeared before him, and requested that money be borrowed on the real estate.
    On the 24th of June 1872, the court ordered the trustee to mortgage the real estate described in the petition, to an amount not exceeding $5500, “for the purpose of repairing, improving, and making tenantable the mills, machinery, buildings and real estate,” the “ trustee giving security, to be approved by the court, in the sum of $10,000, conditioned for the faithful appropriation of the mortgage money for the benefit of the trust.”
    The trustee accordingly entered into a bond, dated July 6th, 1872, with M. W. Leedom and J. H. Lewis, in the sum of $11,000, reciting the decree of the court ordering the mortgage, with condition as contained in the decree. The bond was endorsed, “ Augustus B. Leedom, Maris W. Leedom, and J. Howard Lewis, all approved as sureties for the within bond.
    Bartine Smith,
    Thomas Reese,
    Associate Judges.”
    It was filed in the Orphans’ Court, July 9th 1872.
    The mortgage above mentioned, made in pursuance of these proceedings, recited that the real estate mortgaged was the same devised to Augustus B. Leedom by Samuel Leedom (as before stated), the proceedings in the Orphans’ Court authorizing the mortgage, and that the security required by the decree had been duly entered and approved by the Orphans’ Court.
    The case was tried June 2d 1876, before Clayton, P. J.
    Under objection and exception, the plaintiffs gave in evidence the mortgage and the assignment. They then gave in evidence the will of Samuel Leedom. They further offered in evidence the decree of the Orphans’ Court authorizing the mortgage. The defendant objected to the offer, on the ground that the cestuis que trust had not been made parties to the proceedings ; that those of them who were minors had no guardian and were not represented. The offer was admitted, and a bill of exceptions sealed.
    They then offered the trustee’s bond filed in the Orphans’ Court. The defendants objected to the offer, on the ground that it purported to have been approved when the court was not in session. The offer was admitted, and a bill of exceptions sealed.

      The plaintiffs then closed.
    The defendant testified that, in the summer or fall of 1872, he applied to Cochran, a money broker, to raise him money on the mortgage; he did not then furnish it. There was another mortgage on the property held by Charles Knox, for $3200, with $240 interest due upon it. After failing to get money through his own efforts, Forrest said to defendant that probably he could negotiate it, and afterwards informed him that Cochran would take the mortgage of $5500, and also the Knox mortgage, and that it would cost $700 bonus. He was to take both, and give $8000' for them. $3440 was paid to him. Defendant got in cash $1567.37, the balance of the money; he paid Cochran $900; the residue was applied to the payment of his individual debts; the $1566.37 was all the money he got in cash out of the $5500 ; there were $195 for Cochran’s charges taken out, besides the $700. At the time of the application to the Orphans’ Court, he had three minor children; neither then nor at the execution of the mortgage had they guardians.
    The defendant then proposed to prove that the eestuis que trust were not made parties to the proceedings in the Orphans’ Court, and there was no notice to them ; that three of them, the owners of the fee of the mortgaged premises, were minors without guardians ; also, that the bond of the trustee and the sureties had not been approved by the Orphans’ Court, nor presented to that court for approval. He offered also to prove how much of the money which came into his hands out of the mortgage was applied to the improvement and repair of the mortgaged premises. ,The offers were severally objected to by the plaintiffs, rejected by the court, and bills of exception sealed.
    On cross-examination he said that he had consented to all the payments made by Forrest, except a note for $350 to one Hawkins ; he had been several times to see Cochran before he bought the mortgage; defendant told him he wanted to raise $5500 on mortgage by order of court; after some negotiation the matter finally dropped. In September 1873, after the execution of the mortgage to Forrest, he took hold of it again. He got notice from Forrest to meet Cochran at Chester, and bring Knox down ; he and Knox went to Chester, to Cochran’s, October 17th 1873. Forrest was to have been there, but did not come. In a day or two afterwards Cochran, Forrest and defendant met; Cochran paid Knox $3440; Cochran paid Forrest the balance in defendant’s presence, after deducting expenses. Defendant said it was likely he had told Cochran to give Forrest the check — that it would be all right; he did not know that he mentioned to Cochran that he had any defence; he was aware that Forrest was negotiating with Cochran for the mortgage, for $700; he said “as much to Cochran in Chester as that Forrest did not own the mortgage defendant told Cochran that the balance of the mortgage beyond the Knox mortgage was for himself; he never saw Mrs. Lombaert; he did not know whether Cochran knew how the moneys were appropriated.
    In rebuttal Forrest testified that in the negotiation of this mortgage with Cochran he represented that it was his own; after some correspondence with Cochran as to negotiating both mortgages, and consultation with defendant, an agreement was made with Cochran to take both mortgages, with permission of the defendant as representative of the estate, for $8000. In the presence of defendant, Cochran gave Knox a check for the amount of his mortgage, and gave witness a check for the balance; defendant was present and raised no objection ; “ it was so understood.” Cochran was agent for Mrs. Lombaert; the $700 bonus was understood by the defendant; Cochran knew that it was satisfactory to him; Leedom was present at the settlement because he was a party in interest; witness “ did not understand that Cochran understood that this was the transaction of Leedom;” Cochran did not know from witness that the money was to go to defendant; he treated only with Cochran; he had no conversation with Leedom and Cochran together. Witness held the mortgage as collateral security, and was to reimburse himself — to indemnify him for money lent both before and afterwards, and for money obtained by defendant on his security; he never notified Cochran that he held as collateral security, nor that there was a balance coming to defendant ; Cochran knew nothing of the transactions between witness and defendant.
    Cochran testified: that acting for Mrs. Lombaert, he bought the mortgage from Forrest, and did not know that defendant had any interest in it; defendant made no objections to the payments when the matter was closed; nothing was said by defendant about the appropriation of the money; witness had no business with defendant; in his dealings with Forrest he knew him only as the owner of the mortgage.
    Maris W. Leedom, one of the sureties in the Orphans’ Court bond, died April 9th 1873.
    The defendants’ points were :—
    1. The plaintiff cannot recover in this' action any sums retained as discount or bonus, or paid for commission and expenses of transfer of mortgage.
    2. The plaintiff cannot recover any sums advanced or loaned by Forrest, to the mortgagor, prior to the date of the mortgage.
    3. The plaintiff cannot recover any sums temporarily loaned by the mortgagee to be repaid to him out of the sale of the mortgage.
    4. If the jury believe that the mortgage in suit was executed to Forrest for the purpose of raising money by the sale thereof, then the time of issuing said mortgage was the date of transfer to Mrs. Lombaert, and she is not entitled to recover more than actually passed into the hands of the mortgagor out of the moneys furnished by her.
    5. If the jury believe that the mortgage was executed to Forrest for sale by him, with the understanding that he was to be repaid out of the proceeds of sale moneys temporarily advanced by him to the mortgagor, no such moneys can be recovered in this suit.
    6. No moneys can be recovered in this action, except such as were bond, fide loaned on the mortgage for the purposes for which the mortgage was ordered to be made.
    7. The plaintiffs are chargeable with notice of any defect in the mortgage in like manner as Forrest was, and cannot recover more in a suit on the same than Forrest himself could.
    8. The proceedings of the Orphans’ Court for the purpose of authorizing this mortgage being defective, in that the children of Augustus B. Leedom and of Hannah Leedom, and the said Hannah Leedom were not made parties thereto, no recovery can be had on the mortgage.
    9. No sufficient bond having been given in the proceedings in the Orphans’ Court, which purport to authorize this mortgage, the mortgagee was bound to see to the proper application of the mortgage money, and if any part of said mortgage moneys was diverted from the purposes for which the said moneys were authorized by the court to be raised, no recovery of such moneys can be had in this action, although the trustee may have consented to the diversion of such money from said purposes.
    10. If the jury believe that the mortgage sued on was issued to Forrest for the purpose of sale, then in contemplation of law it was not issued until it was sold, and if Maris W. Leedom, one of the sureties in the bond, was then dead, there was no bond in existence as contemplated by the decree of the Orphans’ Court, and the holder of the mortgage is not entitled to recover any part of the mortgage moneys which were diverted from the purposes for which the said mortgage moneys were authorized to be raised.
    11. No attorney’s commission can be collected in this suit.
    12. If, when Mrs. Lombaert took an assignment of the mortgage in suit, it was manifest from an inspection of the premises that the mortgage moneys had not been expended in the repair and improvement of the same, it was her duty to inquire whether they had been advanced to the mortgagor for that purpose, and failing to make such inquiry she cannot recover in this suit any moneys not so advanced.
    The court answered the points as follows :—
    1. Negatived subject to the general charge.
    2, 3. Affirmed if the plaintiffs or their agent had notice.

      4-6. Affirmed if Mrs. Lombaert had notice that Forrest was not a bond, fide holder, otherwise not.
    7. Negatived under the evidence in the case.
    8-12. Negatived without qualification.
    The following is a statement in the paper-book of plaintiff in error and not denied by the paper-book of defendants in error:—
    “ On the evidence being concluded the president judge remarked to the counsel of the defendant, in the presence of the jury, that inasmuch as there is no evidence of notice to Mr. Cochran £hat Forrest was not the real holder of the mortgage, but was only acting for Leedom, the trustee, he presumed that the counsel would not wish to address the jury, whereupon the counsel replied that if the court was about to take the case from the jury on the subject of notice, it was not worth while for them to address the jury, and having presented the points upon which they requested to charge, the court charged the jury as follows :—
    “ If you find that the purchaser of the mortgage had no notice that Forrest had not given value for and was not the bond fide holder of the mortgage, but was induced to believe by Leedom and Mr. Forrest, that he, Forrest, had received the mortgage in the regular way, and that Leedom had no set-off to it, the verdict should he for the plaintiff for the whole amount due.
    “If the plaintiff had notice that the mortgage was held by Forrest as trustee for Leedom, and that the money paid for the mortgage by the plaintiffs was in reality the first consideration for it, then the discount becomes the bonus, and must be credited on the mortgage ; in other words, plaintiff can only recover what was paid for it. And if plaintiff knew the money was to be misapplied by Leedom, she cannot recover for so much as was so misapplied. If you find any evidence of notice to Mr. Cochran that Mr. Forrest was not the bond; fide holder of this mortgage, you may strike off the bonus, and all moneys that were misapplied and moneys paid to Leedom before the transfer. If you do not find such notice, then find for the plaintiff.”
    The verdict was for the plaintiffs for $6301.17.
    Subsequently to the verdict, and before judgment, the defendant’s counsel, by leave of the court, filed of record a suggestion that defendant had been dismissed from his trust, and that William D. H. Serrill had been appointed his successor, had given bond, and entered upon the duties of the trust, and moved in arrest of judgment; the court overruled the motion.
    “ October 12th 1875, judgment on the verdict in favor of the plaintiffs, and against the defendant, for the sum of $6301.17, with interest from June 2d 1875.”
    The defendant took a writ of error, and assigned for error:—
    1-7. The rulings of the court on the questions of evidence.
    8. Submitting to the jury the question of notice to plaintiffs, after having made the statement that there was no notice, and suggesting to counsel that there would be no occasion to address the jury, &c.
    9-11. The charge of the court.
    12-23. The answers to the defendant’s points.
    24. Entering judgment generally on the verdict.
    25. “ The discharge of the defendant from the trust and the appointment and qualification of his successor, having been suggested of record on June 6th 1875, the court erred in proceeding in the case after said date without the substitution of the new trustee.”

      A. L. Smith and J-. J. Lewis, for plaintiff in error.
    The mortgage was not properly authorized, notice not having been given to all the parties interested: Act of April 18th 1853, sect. 3, Pamph. L. 503, 1 Br. Purd. 1243, pl. 3. Leedom himself had no interest: Brown v. Williamson, 12 Casey 338; Rees v. Livingston, 5 Wright 113; and the minors had no notice: Smith v. Townsend, 8 Casey 434. The mortgage was obtained by fraud; the assignee should have made inquiry: Harper v. Jeffries, 5 Whart. 26; Metzgar v. Metzgar, 1 Rawle 227; Frantz v. Brown, 1 Penna. R. 257; Elynn v. Allen, 7 P. F. Smith 482; Faull v. Tinsman, 12 Casey 108; Mann v. Dungan, 11 S. & R. 75; Weaver v. Lynch, 1 Casey 449; Buchanan v. Wurtz, 5 Watts 151; Edgar v. Kline, 6 Barr 327. Leedom’s silence or even false representations could not bind the owners of the land: Hill on Trustees 317, 503.

      J. B. HinJcson, for defendants in error.
    The Orphans’ Court had jurisdiction to authorize the mortgage; the decree could be reversed only by appeal to the Supreme Court: Act of March 29th 1832, sect. 2, Pamph. L. 190, 2 Br. Purd. 1103, pl. 4; Torrance v. Torrance, 3 P. F. Smith 510; Moorehead v. Commonwealth, 1 Grant 215. When looking at a decree collaterally, it is presumed that every element necessary to make it was in it: Murklein v. Trapnell, 10 Casey 46; Colbaugh’s Appeal, 12 Harris 144. That the bond was filed, was sufficient evidence that it was approved without an endorsement of approval. The mortgagor having been present at the transaction with Forrest assenting to what was done, he is estopped: McMullen v. Wenner, 16 S. & R. 18; Edgar v. Kline, 6 Barr 327: Weaver v. Lynch, 1 Casey 449.
    May 8th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

The argument of the twenty-five assignments of error was well made by the counsel for the plaintiff under three questions. The first relates to the validity for any purpose of the mortgage in question.

The plaintiff in error was the testamentary trustee of certain real estate, for the use and benefit of his wife, and their children. He applied, by petition, to the Orphans’ Court of the proper county, setting forth that the said real estate was much dilapidated, and required repairs to the houses and saw-mill, and that the personal estate in his hands and under his control, as trustee, was insufficient for the improvement and repairs of said real estate, and for the purposes necessary to carry out the trust. He therewith exhibited a true and perfect inventory and conscionable appraisement of all the personal estate whatever in his hands as said trustee. He therefore prayed the court to order the mortgage of said real estate, or so much thereof, and for such sum as to the court should appear necessary for the improvement and repairs of said real estate, and for the purposes of the business of said trust. Thereupon the court appointed an auditor to take testimony and report the facts, together with his opinion. The auditor reported, fully sustaining all the averments in the petition, and recommended that the petitioner “ be authorized to mortgage the said real estate to the amount of $5500, which would be in no way an injury or prejudicial to the estate.” The court confirmed the report, granted the prayer of the petitioner, and decreed that he be ordered and authorized to mortgage the property to an amount not exceeding the sum recommended by the auditor, for the purposes stated in the petition, on his giving security, to be approved by the court, in the sum of $10,000, conditioned for the faithful appropriation of the mortgage-money for the benefit of the trust. The record shows the bond, duly executed by the trustee and two sureties, was filed a few days thereafter. It is endorsed approved over the signature of two of the associate judges. It is claimed that this was not sufficient evidence of the approval, and that parol evidence that it was not approved by the court was improperly rejected.

The record shows it was filed and approved. It was a statutory bond. The law presumes it was properly examined and passed upon by the court as a part of the proceedings before it was approved and filed: Hartz v. Commonwealth, 1 Grant 360; Boyd v. Commonwealth, 12 Casey 355. In Lockhart v. John, 7 Barr 138, it was held, that the provisions of the Acts of Assembly of 1832 and 1834, requiring administrators to give security for the faithful application of the proceeds of Orphans’ Court sales, were directory merely, and the want thereof did not avoid the sale. So in Thorn’s Appeal, 11 Casey 47, the giving of surety was treated as directory under the 6th and 10th sections of the Act of 18th of April 1853, 2 Purd. Dig. 1242, although in this case security was given before confirmation of the sale.

It is further objected that the record fails to show notice to all the persons interested. The Orphans’ Court is a court of record. It has, within its jurisdiction, all the qualities and incidents of a court of record at common law. It had undoubted jurisdiction of the trustee and of the property. “ Its proceedings and decrees in all matters within its jurisdiction shall not be reversed or avoided in any other court:" 2 Purd. Dig, 1103, pl. 4. In collateral suits and proceedings they must be held conclusive, unless impeached for fraud, or want of jurisdiction appearing on the record: Painter v. Henderson, 7 Barr 48; Welty v. Ruffner, 9 Id. 224; Keech v. Rinehart, 10 Id. 242; Dixey’s Executors v. Laning et al., 13 Wright 143. Where jurisdiction is established, the presumption is, that all directory provisions have been followed: Pittsburg v. Walter, 19 P. F. Smith 365. The mere omission to state on the record some of the intermediate steps cannot make its decrees void. The Common Pleas has no power to inquire into mere irregularities. Hence, the record was rightly admitted in evidence, and there was no error in rejecting all the parol evidence offered, to impair its effect. It gave to the trustee a clear right to execute a mortgage of undoubted validity, according to the terms of the decree.

Second. Under and by virtue of that decree the mortgage was executed to Eorrest. It recites the decree of the court; the giving of security, and the approval thereof by the court. More than nine months thereafter it was sold and assigned by Eorrest to Mrs. Lombaert, at a small discount. The assignment was made to her, and the money paid therefor by her agent, Cochran, in the presence of the mortgagor, the plaintiff in error. The evidence shows that Eorrest was not the bond, fide holder of the mortgage for full value ; but the jury have found that Mrs. Lombaert had no notice that Forrest had not given value for the mortgage, and that he was not the bond fide owner. And they have further found that she was induced by both the mortgagor and mortgagee to believe that he, Forrest, had received the mortgage in a regular way, and that the plaintiff in error had no set-off against it; also, that she had no knowledge that the money was to be misapplied by him. Taking the whole charge, and the answers to the points, the learned judge appears very distinctly to have told the jury substantially that she could not recover any more on the mortgage than what she purchased in good faith, and without a knowledge of the manner in which it was held by Eorrest.

Defence to the mortgage is made by the mortgagor alone. It is not shown by the record that the eestwis qui trustent make any defence; nor does it appear in the evidence that they are not fully secured by the obligation given.

Mr. Cochran acted as agent for ‘Mrs. Lombaert in the negotiation and purchase of the mortgage. While thus acting he received no information of any fact calculated to impair its validity. Leedom had full knowledge of the negotiation between Forrest and Cochran while it was in progress. Yet, he answers: “ I don’t know that at any time I told Mr. Cochran that I had any defence or offset to this mortgage.” Again, he testifies: “At the time the matter was closed, I don’t know that I mentioned to him (Cochran) that I had any defence.” He was not only present, but was consulted as to the discount on the mortgage, and assented to it. His whole conduct clearly led the purchaser to believe that he had no defence to the mortgage. He not only exhibited that expressive silence, which in equity would be a fraud for him now to gainsay, but he gave positive encouragement to the purchaser to rely on the validity of the mortgage. He is now estopped from alleging his own breach of trust to the prejudice of a good faith purchaser: Weaver v. Lynch, 1 Casey 449.

Third. The record does not show that the trustee was discharged. It does show that after verdict, and before judgment, the counsel for plaintiff in error, by leave of the court, did suggest that he had been dismissed from his trust; but when that dismissal occurred nowhere appears. No evidence of the fact was either given or offered on the trial.

The pemark made by the judge to the counsel, just before charging the jury, that there was “no evidence of notice to Mr. Cochran that Forrest was not the real holder of the mortgage, but was only acting for Leedom,” did not preclude them from arguing the case then, n:or from requesting leave so to do when they saw the court was about to submit the question of notice to the jury. Having omitted to do either, we do not now think the remark of the judge a sufficient cause for reversing the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Shippen and Robbins’s Appeal.
    1. A mortgage was made by a wife with her husband of her separate estate; the husband used the money for his own purposes exclusively, without accounting to her; by deed, in which she joined, he assigned all his estate for creditors; the wife died, having devised her estate to a son; her land was sold under the mortgage, leaving a balance after its payment. Held, if the husband had any interest as tenant by the curtesy in the balance, the amount taken by him of the wife’s money having been greater than such interest, her devisee was entitled to receive it, in preference to the husband’s assignees.
    2. The fund having come from her separate estate it would have been hers if living; her right did not depend upon subrogation, but was a legal right to be enforced unless the claimant under the husband could show a superior title both in law and equity.
    3. The “ Carlisle Tables” are not authoritative in a judicial investigation of the value of a life interest; in such investigation each case must depend on its own circumstances.
    4. In this case the common-law rule of one-third the capital sum was adopted as the measure of the life interest.

      January 19th 1876.
    Before Asnew, O. J., Sharswood, Merchr, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Montgomery county: No. 59, to January Term 1876.
    The question in the proceedings in this case arose on the distribution of the proceeds of the sheriff’s sale of real estate formerly of Amelia C. Platt, deceased, Benoni Lockwood being the terretenant. After payment of the mortgage debt for which the land was sold, by agreement of the parties $4781.48 were paid to Benoni Lockwood; the remainder, $7000, was paid into court, and B. E. Chain, Esq., was appointed auditor to report distribution.
    The case as found by him, in two reports, is as follows :—
    On the 30th of November 1864, Benoni Lockwood conveyed to his mother, Amelia C. Platt, the wife of Clayton T. Platt, a piece of land in Springfield township, Montgomery county, containing about five acres; the land was conveyed subject to a mortgage to secure the payment of $7500. On the 20th of April 1867, Mrs. Platt, her husband joining with her, executed a mortgage on this land to Louis A. Godey, to secure the payment of $12,000. Part of this sum was applied to the payment of the $7500 mortgage, &c., and the remainder, $4221, “was used by Clayton T. Platt for his own purposes, no part thereof being appropriated for the use or benefit of Mrs. Platt or her real estate, nor was any account ever rendered to her of the manner in which it was expended.” On the 1st of November 1867, Platt and wife executed to Edward Shippen and William B. Robbins an assignment of all the estate, real and personal, “ of him the said Clayton T. Platt, without any reservation or restriction of any kind,” for the payment of Platt’s debts. The deed contained the proviso :—
    “ That nothing herein contained shall be deemed to convey, assign, transfer or in any manner affect the title and estate of her, the said Amelia C. Platt, in and to all that certain parcel of ground, with the improvements thereon erected, situate in the township of Springfield, in Montgomery county * * * (the premises above mentioned as conveyed by Lockwood), which premises she, the said Amelia O. Platt, claims to hold as her separate estate.” Mrs. Platt died May 20th 1871, having made a will, dated May 3d 1869, by which she gave all her estate of every kind to her son, Benoni Lockwood, and appointed him the executor of her will. Clayton T. Platt, on the 2d of January 1874, conveyed all his interest in the Springfield property to Lockwood. To September Term 1874, under a levari facias on the Godey mortgage, the land was sold by the sheriff for $24,200. After the payment of the mortgage and costs, the balance remaining was $11,736.40: at the date of the sheriff’s sale, Clayton T. Platt was fifty-five years of age; according to the Carlisle Tables, the value of his life interest in that sum was $6534.60.

      The assignees of Platt claimed that at the date of the assignment, he had an estate by the curtesy in the land, which estate passed to them hy the assignment; that his wife being dead at the time of the sale, and his curtesy estate therefore consummate, they were entitled to the sum at which his life interest was so valued; the $7000 were therefore paid into court to await the determination of this question.
    The auditor, in a well-considered and elaborate report, held, that Platt had such an interest in his wife’s land as would pass by his deed of assignment; that by the assignment this interest actually passed, notwithstanding the proviso reserving Mrs. Platt’s separate estate in the land; and that the assignees were not entitled to receive the sum at which Platt’s life interest was valued, but only the interest during his life of the balance of the purchase-money.
    After the coming in of this report, Lockwood presented a petition setting out the conveyance to Mrs. Platt, the mortgage to Godey, &c.; the petition proceeds:— * * *
    “ Your petitioner is informed and believes, and expects to be able to prove, that the said Amelia C. Platt united with her husband in the said mortgage solely for the purpose of raising money for the payment of his debts and answering his necessities, and that the whole of the balance of the said sum of $12,000, which remained after paying the said mortgage of $7500, and the interest on the same, went to the payment of his debts and answering his necessities, and no part of it went to her use or benefit.
    “ And your petitioner further says, that he did not acquire the information and knowledge that his mother joined in the mortgage solely for the purpose above mentioned, and that the balance above mentioned went to the payment of Clayton T. Platt’s debts and answering his necessities, and that no part of it went to his mother’s use or benefit, until after the filing of the auditor’s report in the above case. * * * He is advised that the said Amelia C. Platt, to the extent of the balance of the said sum of $12,000, after paying the said mortgage of $7500, with the interest due thereon, stood as a surety for the said Clayton T. Platt, and that the same having been raised out of his inheritance by the sheriff’s sale in the above case, your petitioner is entitled to have the proceeds of the said Clayton T. Platt’s life estate in the mortgage premises applied to his reimbursment, or to such other relief as equity will allow.
    “ He respectfully prays your honors to recommit the case to the auditor appointed to distribute the funds in the above case, for the purpose of taking evidence and reporting upon the aspect of the case presented by tlm facts that may be proved before him.”
    Exceptions also to the report were filed by both parties.
    Judge Ross concluded his opinion, saying :—

      “We approve of the action of the auditor in refusing to calculate the value of the life interest upon the basis of the Carlisle Tables, and pay it out of the fund ; and did we agree with his conclusions upon the first branch of the case we would confirm his report, with one modification, and that is, we should appoint a trustee to hold the fund and pay the interest annually to the assignees during the life of the assignor.
    “ It is proper to say further, that if we had reached a different conclusion we should again have referred the case to the auditor upon the petition filed with that prayer, for if this estate was pledged for the debts of Mr. Platt, it may be that Mrs. Platt’s devisee might have an equity against the fund.”
    The court ordered that “ the report be recommitted to the auditor to distribute in accordance with this opinion.”
    By his second report the auditor found the facts as to the appropriation by Platt of the money received on Glodey’s mortgage as heretofore stated, and decided that, from the facts, Amelia C. Platt, to the extent of at least $4221, part of the said $12,000, was a creditor of her husband, and by joining in the mortgage of her separate estate for her husband’s debts she became entitled to all the rights of a surety as against her husband.
    Without deciding whether this would be a defence to the claim of Platt’s assignees, he awarded the fund in court — $6755.50— after deducting the expenses of the audit, to Benoni Lockwood, in accordance with the opinion of the Court of Common Pleas.
    Exceptions were filed to this report by the assignees of Platt; they were dismissed by the court, the report confirmed, and the fund ordered to be paid to Benoni Lockwood, devisee and legatee of Amelia C. Platt.
    The assignees appealed to the Supreme Court, and assigned for error:—
    1. Awarding the fund in court to Benoni Lockwood.
    2. Deciding that Platt’s curtesy did not pass by his assignment to the defendant.
    3. Deciding that the appellants, if successful, were entitled only to the income of the fund in court, and would receive the same through the intervention of a trustee.

      A. T. Freedly and W. H. Bawle (with whom was 6r- B. Fox), for appellants.
    The Carlisle Tables have been recognised as a rule for fixing the value of life estates: Mills v. Catlin, 22 Vermont 106; Williams’s Case, 3 Bland Chan. (Md.), 221; Bank v. Hogendobler, 4 Id. 372. If Mrs. Platt has the right to be reimbursed, she must come in with other creditors: 2 Story’s Eq. Jur., sect. 1373.

      J. Boyd and P. McCall, for appellee.
    Where wife joins with her husband in a mortgage of her estate for his benefit, she stands as his surety: Sheidle v. Weishlee, 4 Harris 134; Miner v. Graham, 12 Id. 491; Clancy on Rights of Married Women, 589; Niemcewicx v. Gahn, 3 Paige C. R. 614; Parteriche v. Powlet, 2 Atk. 383.
    If husband has a mortgage upon his estate and wife joins witn him in charging her own, if she survives him, though her estate is liable to the mortgagee, it shall be looked upon only as a pledge, and she is entitled to stand in the place of the mortgagee, and to be satisfied out of her husband’s estate: Agiular v. Agiular, 5 Madd. 415. The value of the life of estate should not be more than one-third of the principal sum: Dennison’s Appeal, 1 Barr 201.
    February 7th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

The fund in court represents the title and estate of Amelia C. Platt in the property sold. It arises from a sheriff’s sale under a mortgage given by her in her lifetime, when she was fully competent to dispose of her own estate in the mode prescribed by law. Her right, or that of her legal representatives, to the residue of the fund after payment of the mortgage debt is therefore a legal right to be enforced unless a better title can be shown. It is claimed such exists here in a derivative estate by the curtesy of her husband, preserved to him under the Acts of 1848 and 1855. The wife having, with the consent of her husband, who joined in the mortgage, exercised her superior right of property, by mortgaging the whole estate, including his curtesy interest, the joint act of both, followed by a sheriff’s sale under the mortgage, it might be a question whether the curtesy of the husband is not wholly extinguished. It is unnecessary, however, to decide this, as his curtesy, if it survived the mortgage and sale, is clearly subordinate to her rights, and he having received out of the mortgage money a greater sum than his curtesy in the residue of the fund would amount to, he cannot claim any part of the fund to the prejudice of her estate. The auditor finds that he received out of the mortgage the sum of $4221. This is greater than the sum to which his curtesy would be entitled under the common-law rule, allowing one-third of the capital of the whole fund as representing the accumulated interest of the fund for his lifetime. The sum in court remaining after satisfying the mortgage and expenses, was, $11,736.10, of which one-third is $3612.03. The auditor has found all the facts necessary to a conclusion. Had Mrs. Platt been alive when the sheriff’s sale was made, no one would dispute her right to the money, under the force and effect of the Married Woman’s Act of 1848, to the exclusion of her husband. Being the owner of the fund, her claim is primary at law, and not merely in equity. Supposing that the curtesy estate survived the joint mortgage and sheriff’s sale, still her representatives would be entitled to assert her superior claim to the fund, to the extent of the sum received by the husband out of the mortgage. The money so raised was hers, not his. The conversion was by her lawful act, in the exercise of her superior title, and was with his consent. The case, therefore, does not depend on subrogation — on a mere equity, but the claimant under the husband must show a superior title to the fund both in law and equity. In this view of the casé it is unnecessary to decide between the title of the assignees under their deed, and ■ that of Benoni Lockwood, under his deed. The latter is entitled to claim under the will of Mrs. Platt.

As to the measure of the life estate of Clayton T. Platt, we may add that the Carlisle Tables are not authoritative. They answer well their proper purpose, to ascertain the average duration of life, so as to protect life insurers against ultimate loss upon a large number of policies, and thereby to make a profit to the shareholders. But an individual case depends on its own circumstances, and the relative rights of the life tenant and remainderman are to be ascertained accordingly. A consumptive or diseased man does not stand on the same plane as'one of the same age in vigorous health. Their expectations of life differ in point of fact. A court, therefore, must ascertain the actual probable expectation of life of the party as he is, or must adopt some recognised approximate standard as its legal measure, in order to capitalize the interest he is entitled to for life. In this case the Carlisle Tables, it is said, would give the value of the life estate, or capitalized interest at $6534.60, leaving the fee simple estate worth but $5202. The' disproportion is quite manifest. We are, therefore, disposed to take the old common-law rule of one-third of the whole sum, as the present value of the accumulated interest for the life of Clayton T. Platt. This gives a sum several hundred dollars less than that received by him out of his wife’s mortgage-money.

Decree affirmed with costs, and the appeal dismissed.


author: Mr. Justice Sharswood

text:
    Schultz’s Appeal.
    1. A testator wishing to bequeath his estate to charitable uses was told that it would be invalid if he should die within a month, but that he might give it unconditionally to some person whom he could trust to carry out his wishes ; Yeakle was named, and an absolute bequest was made to'him. Testator died within the month and Yeakle being informed of his death and wishes, said he would carry them out. Held, that there was.nothing in the circumstances to fasten a trust on. Yeakle, and that the bequest was not within the words of the Act of April 26th 1855.
    2. The charities would have had no claim, legal or equitable, to enforce payment by Yeakle, nor would he be guilty of fraud against them or the testator, if he should apply the bequest in any other way; his declaration of intention would not bind him.

      January 21st 1876.
    Before Agnew, O. J., Sharswood, Merour, Gordon, Paxson, and Woodward, JJ.
    Appeal from the Orphans’ Court of Montgomery county: Of January Term 1876, No. 82. In the distribution of estate of Frederick Schultz, deceased.
    The decedent died on the 13th of September 1872, having made his will, dated September 6th 1872. He appointed Jonathan Krause the executor.
    A caveat was entered to the probate of the will, because it was procured by duress — undue influence and fraud — and for want of capacity in the testator. A feigned issue was framed, on the trial of which the will was established.
    After directing the payment of his debts, &c., the only other provision was: “ As touching all the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath the same unto Reuben Yeakle, now of Cleveland, Ohio, and his heirs and assigns for ever.”
    The testator left no children or widow, but a large number of collateral heirs, being brothers and sisters, and descendants of brothers and sisters who had died.
    On the 11th of August 1874, the executor settled an- account of his administration, showing in his hands a balance of $10,043.57. Charles T. Miller, Esq., was appointed auditor to distribute the balance.
    It appeared that the testator, residing in Montgomery county, being very sick, sent for a scrivener to draw his will. Upon the arrival of the scrivener, the testator told him he wished to give his estate to benevolent and charitable objects, which he specified. The scrivener informed him that if he did so the will would be void, should he die within thirty days; but upon his expressing much anxiety that his estate should be disposed of in the manner he had mentioned, the scrivener told him he could leave his property unconditionally to whom he pleased, and if such person would dispose of it as he wished, it might be done.
    The question was whether, the bequest having been made within a calendar month of the testator’s death, it was in contravention of the Act of April 26th 1855, sect. 11, Pamph. L. 332, 2 Br. Purd. 1477, pl. 22, prohibiting charitable bequests within a month of the testator’s death.
    On the hearing before the auditor, the next of kin, called Edward Schultz, a son of a deceased sister of testator, who testified :
    “ I was at Frederick Schultz’s while they were getting ready to draw the will and when the will was drawn. When I came there Frederick Schultz told me to go for Squire Super; this was September 6th 1872. I went for Squire Super, and Squire returned with me to the house. When I got there Frederick’s desire was that Squire should write his will. Squire asked Frederick how he wanted his will written. Frederick said he wanted to leave one-fourth part of his estate to The American Tract Society, one-fourth part to Missionary Society of the Evangelical Association, one-fourth part to The Orphans’ Institute of the Evangelical Association at Flat Rock, Ohio, and the other fourth part1 where it would do the most good.’ Squire Super told him in case he should not live thirty days it would be all of no avail. He lay then sick and wished to have something done, and a proposal was made: it was said to him that he could dispose of his property to a particular person, unconditionally, and if that man would do it, then he could put it to these places where he wanted it; but that would be entirely at his option; he could do it or not. It was explained to Frederick ; I explained to him ; Squire Super explained it to him, and Dr. Schultz explained it to him I think. In the first place he could not understand it right; afterwards I think there was nothing about it he did not understand; and after he understood it he wished it to be made so; and the next was to find a man to whom it should be bequeathed. I proposed Reuben Yeakle, so far as I remember, as the man. Frederick then agreed to Reuben Yeakle. Reuben Yeakle was considered to be an honest man, and it was for this reason he was taken, and because he was acquainted with these societies mentioned.”
    In answer to the question, “Was the understanding of Frederick Schultz, when he gave these directions to Squire Super to write the will, that Reuben Yeakle was not to retain the money for himself, but would apply it as he, Frederick, desired it, to the religious societies named?” witness said, “The understanding was that if he would put it there he might, and if he did not want to he need not; that he could do with it as he pleased. * * * I said that through Yeakle, his desire could be carried out in the distribution of his property: to have his property divided as I have stated. I do not think if there had been no fear that Frederick would die inside of thirty days after signing his will that Reuben Yeakle would have been picked out as his legatee. * * * Frederick said in his well days how he wanted his property disposed of; and as I understand the law, it was only intended to apply to invalids, who were weak in understanding and overpersuaded. Frederick, before he was sick, had told me how he wanted his property disposed'of, and it was the same as he told Squire Super on his death bed. The object was to carry out the wish of Frederick in that way. There was a chance to carry it out in that way if the legatee was willing. Reuben Yeakle was selected because it was thought he would agree to it. If it had been thought by Frederick Schultz that Reuben Yeakle would not carry out that wish, I guess he would not have been named as legatee. Soon after the will was written, within two months, I communicated it to Yeakle. I told him how Frederick wanted this property disposed of and why he was named in the will.”
    The witness further testified that, at the time, or after the will was written and before the testator died, nothing was said by him to witness, or by witness to him, about informing Yeakle as to what had been done in placing his name in the will and the purpose for which it was done; witness could not say positively whether he informed Yeakle of the bequest, or the reason of it, before the testator died; he thought Yeakle was not informed until after the testator’s death.
    Also, Philip Super, who testified: “I ama conveyancer. * * * I was called upon by Edward Schultz to go to the house of Frederick Schultz, to write Frederick Schultz’s will. I went over with him to Frederick’s house. Frederick Schultz, when I went to his house, was sick in bed. Edward Schultz and Jonas Schultz were there. I think the sister passed through the room once or twice while we were there. I went to the bed. Frederick I think extended his hand to me. I then mentioned I had come to write his will. He then said Edward could tell me what he wanted written. I replied, that would not do; it was his will I was to write and that I must have my directions from him. He then said he wished to give one-fourth to the Missionary Society. I don’t know whether he said the Missionary Society of my church or whether he said of 4 The Evangelical Association;’ as I knew him to be a member of the latter association, I understood him to mean that association. That is a religious society. One-fourth to 4 The Orphans’ Home’ of the same society. One-fourth to 4 The American Tract Society.’ That is also a religious society. The other fourth he wished the executor to appropriate to some good object. I told him that would not do, if he should die within thirty days from the time of making his will. I think Frederick asked why he could not do with his own what he pleased. I told him that he expected to die within thirty days and then the law would not permit such a bequest. I am sure Frederick asked this question while I was there. I told him he could leave it to any individual he pleased, but it must be unconditional. I then left the bed-side and left him and Edward Schultz talking together. I don’t know how the name of Reuben Yeakle was introduced, but it was introduced. It was not introduced by me. It was introduced in a conversation between Frederick and Edward Schultz; heard the name mentioned. I then again commenced conversing with Frederick and explained to him why he could not do as he pleased, on account of the Act of Assembly prohibiting such gifts in case death took place within thirty days, and then remarked that if he chose to give this property to Reuben Yeakle without conditions, I supposed he had a right to do so. I had cautioned him before, he could make no conditions in explanation. He then said write it that way; that was the answer.” * * *
    In answer to the question: “Was it not the object of Frederick Schultz and of yourself in making the bequest to Reuben Yeakle, to evade the Act of Assembly already referred to?” the witness said: “ I cannot speak for Frederick Schultz’s object. I can speak my own object; I was not acquainted at that time with Reuben Yeakle, but as his name was mentioned in the course of the conversation, I supposed he was a person in whom Frederick had confidence. And as Frederick had remarked to me, he wished his money placed where it would do the most good, I supposed Reuben Yeakle would make as good use of it as anybody else. I knew Reuben Yeakle personally, but did not know his relation to the church. I supposed from the fact of Frederick naming him that he was a person who might use it for the purpose of those societies, or might not; it was mere supposition ; there was nothing said.” * * * Also, Reuben Yeakle, who testified: “ I live in Cleveland, Ohio. * * * I am bishop of the Evangelical Association. The territory of the entire church, wherever it is, is in my jurisdiction. I knew Frederick Schultz in his lifetime. I understand he was a member of the church over which I preside as bishop. I saw him at a camp-meeting I think in 1872, near Pennshurg, in Montgomery county, which was the last time I saw him previous to his death. I did not have any conversation with him then; simply greetings as we met each other. I did never converse with him as to the disposition he should make of his worldly affairs at his death. He and I were not intimate friends ; we had a slight acquaintance from meeting each other only a few times. I am somewhat related to him, which I cannot explain — a distant relationship. I have seen him in my lifetime I may say three or four times. I have lived in Cleveland, Ohio, fifteen years. I was first apprised of Frederick Schultz’s will pretty soon after his death; can’t say how many days or weeks. I think Philip Super first wrote to me informing me of his death and about the will. * * * The substance of the letter was, that Mr. Schultz had made such a will as he did make. I don’t think he gave me the phraseology of the will, but informed me that he made me the legatee under the will. I don’t think he informed me of Frederick Schultz’s wish as to the disposition I should make of it. * * * I got another letter soon after-wards from Edward Schultz. * * * That letter contained the same information as Super’s. I think it was more definite with regard to Schultz’s wish. As near as I remember, it was that Frederick Schultz desired to apply his estate to benevolent or rather religious purposes. He mentioned the American Tract Society, the Missionary Society of the Evangelical Association, the Orphans’ Institute of the Evangelical Association at Flat Rock, Ohio. I think that is all that was specified. He said this was Frederick’s wish as expressed to him some time before his death. I think I replied to that letter. I think I requested another letter from Edward Schultz. I think I got a reply to it. Edward Schultz wrote to me pretty soon after Frederick’s decease and I think I replied promptly. The letter which I wrote to Edward contained allusions to the will of Frederick Schultz, as I had an interest in it after the information I had received. I could not tell definitely what I asked in that letter, hut I wanted fuller explanations ; that I remember. I received a reply to this letter. The second letter from Edward Schultz contained about the same matters as the first letter, excepting I think this was in addition that one-fourth of his estate should be paid to the American Tract Society, one-fouth to the Missionary Society of the Evangelical Association, one-fourth to the Orphans’ Institution of the Evangelical Association of Flat Rock, Ohio; the other one-fourth was left undecided, but to be applied to religious purposes. I think I wrote a reply to this second letter of Edward Schultz’s. * * * All the societies named excepting the American Tract Society belong to the religious organization of which I am bishop. These societies have their own organization, officers and board of managers. I have no special official connection with them only as they belong to the. church over which I, as bishop, have general supervision.” * * *
    In answer to the question: “ If the will makes an absolute bequest of the property to you, what would you deem it your duty to do with the money if you received it 'under the statements made to you by Edward Schultz and others, of Frederick’s intention?” the witness said, “ I would try to ascertain the precise wish of Frederick Schultz and apply it accordingly. I, as bishop, have no control over the church property. I, as bishop, have no control over the property of these associations which have been named. The title is in no respect in me of any of the property belonging to the societies. * * * I have not seen the will, but if it gives me the absolute right to the property, without condition, I should consider that I had the legal right to do with the property as I pleased. I .draw a distinction in this case between the legal and moral right; but I would feel bound to ascertain what was Frederick Schultz’s wish and act accordingly.”
    They then gave in evidence a letter from Yeakle to Edward Schultz, of which the following is an extract:—

      “ Cleveland, 0., May 6th 1873.
    Dear Bro. Edward Schultz :
    Yours of the 2d inst. was duly received. In reply, I would say that if F. Schultz’s bequest ever gets into my hands, it will be applied as you informed me that Fred, wanted it applied. It will not go to my heirs (in no ease) : I have provided against that in my will. I think you did right in suggesting this thing to Ered., so as to get his estate for the work of God. But I don’t understand the legal proceedings at Norristown. If the executor is authorized to execute the will so far as settling up the estate, why that is already a recognition of the will.” * * *
    The auditor, after recapitulating the evidence, reported : * * *
    “ It seems to me therefore conclusively established that the bequest to Reuben Yeakle was absolute, and that it was so intended by the testator, and that any future disposition of the property was left entirely at the discretion of the legatee. It is true that the testator hoped and believed the legatee would carry out his wishes, but he also knew that he could not compel him to do so by any binding trust and it was accordingly not attempted. * * *
    “ On the day the will was written and executed the testator expected to bequeath his property directly to these charities. He had never thought of Reuben Yeakle, who was then living in Cleveland, Ohio, where he has been living the past fifteen years. He did not even know Yeakle intimately, having only met him casually three or four times in his life. He had never spoken with Yeakle on the subject of making his will. In fact the idea of bequeathing the property to any one, other than these charitable associations, never occurred to the testator until Super at the time of writing the will, suggested the propriety of its being done. Yeakle could therefore have had no agency in procuring the making of the will, nor could he have had any knowledge of its existence or of its contents until the fact was communicated to him as above stated after the death of the testator.”
    The auditor, after referring to very many English authorities which he elaborately discussed, stated the following conclusions:— “ 1. That mere parol declarations by the testator as to his wishes concerning the disposition of his property, whether made cotemporaneously with the execution of the will or at another time, in the absence of fraud, cannot be admitted in evidence, under the Statute of Wills, so as to affect the written will.
    “ 2. That the testator himself cannot create a valid parol trust in opposition to the terms of his written will, but whenever the testator is induced by the devisee, either by promises or otherwise, to omit from his will a devise which he would have made, had such inducement not been held out to him, there equity, and not the testator, raises a trust and converts the devisee into a trustee for the purpose of compelling him to carry out the intentions of the testator, and thus preventing him from perpetrating a fraud by appropriating the property to his own use.
    “ 3. That equity never raises such a trust except in cases where the devisee in some way, by words or silence, encourages or induces the testator to devise the property to him.

      “ 4. Where the devisee induces the testator to devise the property to him upon the secret understanding that he will appropriate it to a charity, there the court of equity holds the devisee to be a trustee for the charity, and if the testator dies within the time limited by the Statute of Mortmain, the trust for the charity is avoided by that statute. To hold this secret trust for a charity to be valid would be a fraud upon the statute.

      “ 5. Equity raises a trust for the purpose of preventing a fraud upon the statute, precisely upon the same conditions as a trust is raised to prevent a fraud upon an individual.” * * *
    “ There could, therefore, in the case under consideration, have been no fraud upon the statute, unless the gift to Yeakle was upon a secret trust for charitable purposes, and there could have been no secret trust for charitable purposes such as a court of equity would recognise and enforce, unless Yeakle had some agency, active or passive, in procuring the bequest. The facts as already found show that Yeakle had no such agency; the bequest to him was therefore not in fraud of the statute and accordingly not void.
    “ But the heirs of Frederick Schultz contend, that Edward Schultz, having assumed to promise the testator that Yeakle could be trusted to carry out his wishes and with this view the bequest having been made to Yeakle, and Yeakle having after the death of the testator accepted the bequest and promised to carry out the wishes of the testator, he must now be regarded as a trustee and the bequest to him be considered void as in fraud of the statute. Edward Schultz was not the agent of Reuben Yeakle ; whatever suggestions he made to the testator were unknown to and unauthorized by Yeakle. Edward Schultz was only the friend and relative of the testator, and assisted him in disposing of his property, so that he might have a chance of gratifying his wishes in giving his property for charitable purposes. Edward Schultz and the testator were both perfectly aware that the property could not be bequeathed by the will in trust for a charity, and they also well knew that if it was to be given to any one it must be given to him absolutely unfettered by any trust or condition, and that if the legatee should afterwards appropriate it to charitable purposes it would be only by his own voluntary act; and that the legatee could not be compelled to do so by any legal or equitable power of the court. With this knowledge the testator made the bequest and it does not matter who suggested the name of Yeakle; the bequest was made to him by the testator with a perfect knowledge that Yeakle could, if he saw fit, appropriate the property to his own use, but with the hope that he would use it for charitable purposes. * * *
    “ I am constrained to decide that the bequest to the residuary legatee is valid.”

      The auditor therefore awarded the fund to Reuben Yeakle.
    The next of kin of the testator filed exceptions to the report.
    The court, Ross, P. J., overruled the exceptions, confirmed the report and decreed distribution, as reported by the auditor.
    George Schultz and others, the next of kin of Frederick Schultz, appealed to the Supreme Court and assigned the decree of the court for error.

      O. Ilunsieher and 6?. R. Fox, for appellants.'
    The effect of this transaction as designed by the parties would be a fraud on the Act of 1855; the law will reach all such devises : Muckleston v. Brown, 6 Vesey 52; Hoge v. Hoge, 1 Watts 163. Parol evidence is admissible to prove that an instrument absolute on its face was a trust, &c.: Chalfant v. Williams, 11 Casey 212; Christ v. Diffenbach, 1 S. & R. 464; Hurst v. Kirkbride, cited in Wallace v. Baker, 1 Binn. 616; Oliver v. Oliver, 4 Rawle 141; Miller v. Henderson, 10 S. & R. 290; Rearich v. Swinehart, 1 Jones 238; Slaymaker v. St. John, 5 Watts 27. In Hoge v. Hoge, supra, this rule was applied to a will. A devise on a secret trust for a charity is an evasion of Statutes of Mortmain: 2 Story’s Eq. Jur., sect. 297; Perry on Trusts, sect. 216. Whether the testator held communication with the devisee or not, the intention of creating an honorary trust would avoid the devise of the legal estate: 1 Jarm. on Wills 245; Boson v. Stathan, 1 Eden 512; Gressley’s Eq. Ev. 208; Shelford on Mortmain 143, 144, 145 n. 5, 147, 153; Edwards v. Pike, 1 Eden 267; Newton v. Pelham, Id. 514; Stickland v. Aldridge, 9 Vesey 516; Willard v. Hawthorn, 2 B. & Ald. 96; Doe v. Wright, Id. 721. The law as to devises for charities cannot be overturned by subtleties: Price v. Maxwell, 4 Casey 33; Wilmot Notes 64; Chesterfield v. Janssen, 2 Vesey, Sr. 165. Direct co-operation in the original transaction is not essential: Magniac v. Thompson, 7 Pet. 348. The Act of April 22d 1856, sect. 4, Pamph. L. 533, 1 Br. Purd. 724, pl. 3; Sechrist’s Appeal, 16 P. F. Smith 237; Boynton v. Housler, 23 Id. 453; Maffit v. Rynd, 19 Id. 381; Russel v. Jackson, 10 Hare 204.

      B. M. Boyer, for appellee.
    It would be against the letter and policy of the Wills Act of April 8th 1833, to vary a devise by parol: Wallize v. Wallize, 5 P. F. Smith 242; Alter’s Appeal, 17 Id. 341; Derr v. Greenawalt, 26 Id. 239. Parol testimony as to wills is not admissible except in cases of ambiguity: Wigram on Wills 48, 97-99; O’Hara on Wills 29; Hampshire v. Pierce, 2 Vesey, Sr. 216; Standen v. Standen, 2 Vesey, Jr. 589; 1 Jarm. on Wills 279. The Act of 1855 is to receive the same construction as the Statutes of Mortmain: 9 Geo. II., c. 36; McLean v. Wade, 5 Wright 266. If a devisee had by fraud induced the testator to give him the éstate absolutely with the understanding he would hold it in trust for a charity, the devisee would be treated as a trustee, but if there were no fraud or mistake it would not be so: Adlington v. Cann, 3 Atkins 144. So if the intention of the testator had not been communicated nor his wishes known to devisee, who assumed no obligation in regard to them: Stickland v. Aldridge, 9 Vesey 516; Lomax v. Ripley, 3 Sm. & G. 48. There must be a contract or trust to avoid the gift: Paine v. Hall, 18 Vesey 475; Walgrave v. Tebs, 2 Kay & Johns. Ch. 313.
    January 31st 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

The very able and exhaustive opinions, as well of the auditor as of the learned court below, have relieved us from an examination of the English decisions upon the Mortmain Act of that country. They undoubtedly throw a clear and strong light upon the question presented upon this record. They establish two positions: 1. That if an absolute estate is devised, but upon a secret trust assented to by the devisee, either expressly or impliedly, by knowledge and silence before the death of the testator, a court of equity will fasten a trust on him on the ground of fraud, and consequently the Statute of Mortmain will avoid the devise if the trust is in favor of a charity. But 2. If the devisee have no part in the devise, and no .knowledge of it until after the death of the testator, there is no ground upon which equity can fasten such a trust on him, even though, after it comes to his knowledge, he should express an intention of conforming to the wishes of the testator. .The latter proposition applies directly to the case now before us. Reuben Yeakle, the legatee named in the will, was not present when the instrument was executed. He had no communication with the testator, directly or indirectly, upon the subject. The testator had long intended to leave his estate for charitable purposes. On his death-bed he sent for a scrivener, and expressed to him his wish to have his property so disposed of after his death. He was informed that if he should die within thirty days, such a disposition would be ineffectual, but that he might make an absolute bequest to some individual, upon the confidence and belief that when he should be informed of his wishes, he would, of his own accord, carry them out. This plan was.adopted, and upon the suggéstion of one of the bystanders, Reuben Yeakle, the bishop of the church to which the decedent belonged, was chosen by him. It is clear, not only from the evidence, but from the verdipt of the jury in the issue of devisavit vel non, that no undue influence was exercised to procure the will. It was the testator’s own free and voluntary act, and he was told “that he could dispose of his property to a particular person unconditionally, and if that man would do it, then he could put it to those places where he wanted it; but that would be entirely at his option; he could do it or not.” Eeuben Yeakle was not informed of the will until some time after the death of the testator. When informed of it he declared his intention to appropriate the money as the testator wished it to be. He said, when examined as a witness before the auditor: “I have not seen the will, but if it gives me the absolute right to the property without condition, I should consider that I had the legal right to do with thle property as I pleased. I draw a distinction in this case between the legal and moral right.”

We are unshackled by authority upon this question. The English precedents upon the construction of their Statute of Mortmain are not binding upon this court, and with us the question is an entirely new one. By the 11th section of the Act of Assembly of April 26th 1855, Pamph. L. 832, it is provided, that no estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible and at the time disinterested witnesses, at least one calendar month before the death of the testator or alienor, and all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee next of kin or heirs according to law.”

It seems very clear that the bequest in the will of Frederick Schultz to Eeuben Yeakle is not within the words of the statute. There is nothing in the circumstances to fasten a trust upon him. The statute out of the way, the charities intended to be benefited would have had no claim, legal or equitable, to enforce payment by him to them. He would, in the eye of the law, be guilty of no fraud, legal or equitable, either against them or the testator, if he should, even at this day, change his intentions and apply the money to some other use. Being the absolute owner, under the will, the declaration of his intention would not be binding upon him. It is not, therefore, in the words of the statute, a bequest “ to a body politic or to any person in trust for religious or charitable uses.” Had Eeuben Yeakle been present when the will was executed, or the objects of the bequest been communicated to him before the testator’s death, and he had held his peace, there would have been some ground for fastening a trust upon him ex maleficio, as in Hoge v. Hoge, 1 Watts 163. But nothing of that kind can be pretended here.

It has been contended, however, very strenuously, that as Edward Schultz proposed Eeuben'Yeakle to the testator as the man, the acceptance of Eeuben Yeakle of the bequest recognised Edward Schultz as his attorney, and ratified whatever he had said and done. They urge the maxim, omnis ratihabitio retrotrahitwr et mandato csquiparatur. It is a very ingenious contention, but unfortunately for the appellants, there is nothing in the evidence upon whicb it can be built. Edward Schultz did not undertake for Reuben Yeakle; he gave the testator no assurance that he would accept and carry out his intentions when made known to him. He says : “ I proposed Reuben Yeakle, so far as I remember, for the man. Frederick then agreed to Reuben Yeakle. Reuben Yeakle was considered to be an honest man, and it was for this reason he was taken, and because he was acquainted with these societies mentioned.” “ As far as I can recollect, I said, that through Yeakle his desire could be carried out in the distribution of his property.” “ The object was to carry out the wish of Frederick in that way. There was a chance to carry it out in that way if the legatee was willing, and Reuben Yeakle was selected because it was thought he would agree to it.” There is nothing in all this which indicates any promise or assurance by Edward Schultz to the testator that Reuben Yeakle would accept the bequest in trust for the charities. There was the mere expression of an opinion, concurred in by the testator, that when the legatee came to understand the object and purpose of the bequest to him, as an honest man he would carry out the intention of the testator.

It is urged, however, that this whole plan is nothing but a contrivance to evade the statute. No doubt such was the intention of the testator. It is said that it is a fraud upon the law, and that the bequest ought therefore to be declared void. But that overlooks the fact that the absolute property in the subject of this bequest has vested in the legatee, and that he is entirely innocent of any complicity in the fraud of the testator. If the statute is practically repealed by this construction it is evident that it must be for the legislature to devise and apply a remedy, not the judiciary, whose province is not jus dare but yiis dieere.

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


text:
    Mutual Fire Insurance Co. of Chester County versus Coatesville Shoe Factory, to the use of Babb.
    1. A policy of insurance provided that the risk of property insured should be determined by the rates annexed and if the risk should be increased as contemplated by a by-law annexed, the’rates should be evidence of the additional risk. The by-law provided that if the insured devoted any part of the insured building or one located by him near it “to a more hazardous business,” the policy should be immediately void. The insured for light introduced gasoline, named as increasing the risk; he afterwa'ds removed it; subsequently the building was burned. Held, the policy was not void.
    2. In the absence of a stipulation to that effect, the validity of the policy depended on the state of the premises at the time of the loss.
    3. Lighting with gasoline was not devoting the building to a more hazardous business.

      January 21st 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Chester county: Of July Term 1876, No. 119.
    This was an action of covenant on a policy of insurance brought January 4th 1875, by the trustees of the Coatesville Shoe Factory, to the use of Thomas C. Babb, against the Mutual Fire Insurance Company of Chester County.
    The policy, dated January 2d 1874, was for insuring $2000 on a stone factory building, a steam-engine to be used therein, situate in Coatesville, described in a survey, &c. The policy stipulated that the by-laws attached to the policy should be considered part of its covenants.
    One of the covenants of the policy was:—
    “That the risk or hazard of property insured in this policy shall be determined by the rates of premium thereto annexed, and if this risk or hazard of insurance shall be increased, as contemplated by by-law 10th hereto annexed, the said rates of premium shall be taken and received as evidence of the said additional risk, and the parties shall'be bound thereby, and not allowed to controvert the same.”
    The tenth by-law was:—
    “If any person having property insured in this company, shall locate another building near tbe same for the purpose of, or devote any part of the one insured to a more hazardous business, whereby the risk of insurance shall be increased, his, her, or their policy shall be immediately void. But by giving due information to the secretary of the company within twenty days thereafter, it may be renewed on such terms as the executive committee shall deem just and equitable.”
    Amongst the rates of premiums was the following:—
    “ One per cent, additional will be charged on all dwellings using an apartment therein for the purpose of smoking meat. And one-half of one per cent, additional on dwellings or other buildings lighted by gas made from petroleum.”
    The claim was for loss by fire, occurring July 28th 1874, on the property insured in the policy.
    The case was tried May 19th 1875, before Butler, P. J.
    Babb, the use plaintiff, testified that on the 28th of July 1874, he went into the cellar of the building to have some repairs.done to a gas pipe; after he supposed the plumber had disconnected the pipe, he turned off the gas burner and went to turn off the gas at the meter; he struck a match to light the plumber in putting a cap on the disconnected pipe, when an explosion took place; witness was insensible for some time; when he revived the building was on fire in several places; he believed he had turned off the gas at the meter, but was not certain. The witness described in detail other circumstances connected with the fire; the character of the building; he testified also as to the extent of the loss.
    The testimony of a number of other witnesses of the plaintiffs were to the same effect as Babb’s.
    The defendants called Babb again. He said that plaintiffs had put up a new building, but had not introduced gas; they put in a Victor Gas Machine between May 1st and June loth 1874; the tank was fifty feet from the building; they connected the pipe; it was used till about July 18th; the material was gasoline; there were about four barrels in all that went into the tank; it was disconnected and cut off from the building on the 22d or 23d of July; the gas was all gone; plaintiffs made application in the summer to the defendants; no increase was made on account of the gasoline; they ceased using gasoline because there was no more in the tank; the secretary of defendants told witness he did not know what the increased rates would be — when he ascertained he would inform him; witness did not put in the gasoline machine until he thought the defendants were satisfied; he gave the secretary to understand that plaintiffs would pay the increased insurance so soon as informed what it was; asked the secretary frequently if he had ascertained the rate.
    The secretary of defendants told Babb that the introduction of gasoline would invalidate the insurance, and that another company who had introduced it were told that their insurance was at an end. He said “the building was all blown to pieces ;” he had examined the building ten or tw'enty minutes after the explosion and saw no fire then; when the insured increases his insurance, it is always endorsed on the policy.
    The defendants gave evidence to show that the explosion and fire arose from the use of gasoline.
    The following are points of the defendants with the answers:—
    1. The damage to the building having resulted from explosion, the defendants are not liable.
    Answer. “We cannot answer this in the affirmative. There is evidence that part of the damage or injury resulted from burning.”
    2. The risk having been increased by the erection of a new building and the introduction of gasoline gas, the defendants are not liable.
    5. The introduction' of gasoline gas made the policy void, and it was never afterwards revived.
    Answer. “ This cannot be affirmed; we cannot say the additional buildings increased the risk — it is for the jury. Nor can we say that the introduction of gasoline of itself relieved the defendants from liability.”
    7. The plaintiffs cannot recover for the damage resulting from the explosion.

      Tins point was reserved.
    The court charged:—
    “ The suit, as you have observed, is founded on the policy of insurance, issued by the defendants to the plaintiffs. After exhibiting the policy and proving the injury sustained, the plaintiffs rested their case.
    “ To this the defendants answer, that the insurance company are not responsible — that the injury was caused by the introduction of gasoline into the building, and that the policy does not cover risk from this source. If it is true, as is charged, that the injury resulted from the introduction of gasoline, the defendants are correct in denying responsibility. The company do not insure against risk arising from the use of gasoline, on the terms charged the plaintiffs. It is considered a more serious risk and is charged for at a higher rate. The policy shows this, and the plaintiffs’ acts show that they so understood. They desired to have the risk introduced into their policy, and communicated with the company’s secretary about it; but nothing that was done in this respect rendered the company responsible. The risk was not assumed.
    “ Then, did the injury result from the use of gasoline, as the defendants charge ? Gasoline was introduced into the building in May or June 1874, as the plaintiff (Babb) testifies, and was used there until about the 18th of July following, when the material in the tank was found to be exhausted, as the same witness informs us. On the 22d or 23d of the same month, the connection with the tank (from which the gas had issued) was cut, and the communication with the buildings thus severed in the manner described by the witnesses. On the 28th of the same month the fire and explosion occurred.
    “ [Was this caused by the gasoline ? The defendants charge that it was; and under the circumstances shown, the burden is on them to satisfy you that it is so.] * * *
    “ Now, you will determine from the evidence, bearing in mind the comments of counsel, whether the injury to the building was caused by gasoline. If it was, the plaintiffs cannot recover, and your verdict must be for the defendants; otherwise, the plaintiffs may recover. In case you find for the plaintiffs, you will assess the damages resulting from the explosion as well as the actual burning, but will state the amount from each separately.” * * *
    The jury found for the plaintiffs $1218.54 for damages'from the explosion, and $20 for damages from burning.
    The court afterwards entered judgment on the verdict for the plaintiffs on the reserved point.
    The defendants took a writ of error, and assigned for error: — ■
    1. The answer to defendants’ first point.
    2. The answer to their second and fifth points.
    4. The part of the charge in brackets.

      6. Entering judgment for plaintiffs on the reserved point.

      W. M. Hayes and W. Mae Veagh, for plaintiffs in error. — The law of insurance sustains these propositions, viz.: — •
    1. When there is no express contract in the policy, in relation to increase of risk, and where an increase takes place, the insured cannot recover if the loss has resulted from the increased risk.
    2. If there is an express provision in the policy against increasing the risk, or increasing it in a particular manner, and the provision is violated, no recovery can be had on the policy, although the increase in the risk may not have caused the loss: Flanders on Fire Insurance 514, 515.
    Whether or not the loss was actually occasioned by the increased risk is entirely outside of the question, and the defendant had a right to defend by simply saying that for a risk of this description they never agreed to become answerable: Merriam v. Middlesex Mutual Fire Ins. Co., 21 Pick. 162; People’s Ins. Co. v. Spencer, 3 P. F. Smith 353; Woolmer v. Muilman, 1 W. Black. 427; Jennings v. Chenango County Mut. Ins. Co., 2 Denio 81; 1 Phillips on Ins., ch. ix., sec. 10; Lee v. Howard Fire Ins. Co., 3 Gray 583; Flanders on Fire Ins. 521; Diehl v. Adams County Mutual Ins. Co., 8 P. F. Smith 443. The list must be regarded as determining, by virtue of a written contract of the parties, what should constitute an increased risk, and to leave the question an open one to the jury was error: Lee v. Howard Ins. Co., 2 Gray 583; Harris v. Columbiana County Mut. Ins. Co., 4 Ohio St. 285; Washington Mut. Ins. Co. v. Mech. & Manufac. Mut. Ins. Co., 5 Id. 450. Where there has been an increased risk taken, not covered by the policy, the burden of the proof is on the insured, to show that the loss did not happen from the increased risk, rather than upon the insurer to show' the contrary: Sohier v. Norwich Fire Ins. Co., 11 Allen 336; McLoon v. The Commercial Mut. Ins. Co., 100 Mass. 472; 2 Greenleaf on Evidence, sec. 408. The shock or concussion caused by an explosion is not a risk covered by an insurance against fire: Flanders on Fire Ins. 562, 563; Stanley v. Western Ins. Co., Law Rep. 3 Exch. 71.

      Cr. F. Smith and W. B. Waddell, for defendants in error.—
    The explosion was occasioned by the fire, the defendants therefore are liable: Waters v. Ins. Co., 11 Peters 213; Insurance Co. v. Corlies, 21 Wend. 367; Greenwald v. Insurance Co., 3 Phila. Rep. 323; Scripture v. Insurance Co., 10 Cush. 356.
    January 31st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

Under the charge of the learned judge, the jury must have found that the injury from the fire in this case did not arise’ from the introduction and use of gasoline as a means of lighting the building. The injury not having arisen from any increased risk growing out of this cause, the first proposition of the plaintiff in error is disposed of. But it is contended that there are provisions in the policy which forbid such an increase of risk, and therefore that the policy is void, whether the loss resulted from this cause or not; and the complaint' is, that the question of an increase of risk was submitted to the jury. If the postulate is .admitted, the conclusion certainly is that there was error in not so charging. But there is no clause or provision in the policy which makes it void for a temporary increase of the risk. It is true that lighting the building by gas made from petroleum requires a higher rate of premium, and by another provision in the policy this is evidence of an increase of risk over a building not so lighted, which the assured cannot controvert. But there is no provision that such an increase of risk makes the policy void, ipso facto. It undoubtedly renders the policy liable to be avoided if a .loss arise from this cause. In the absence of a stipulation to this effect, the validity of the policy necessarily depends on the state of the premises at the time of the loss. But in this case the evidence shows that this mode of lighting had been discontinued some time before the fire, and the verdict establishes that the fire did not result from the gasoline. We must, therefore, find some other clause in the policy to support the position of the plaintiff in error. It is supposed this is found in the tenth by-law. But this by-law applies only to a more hazardous business pursued by the assured in the building, whereby the risk is increased. If a means of lighting the building in which the business of the assured is carried on can be deemed the business itself, then the rule covers the case, and the policy was avoided. But this cannot be held to be the meaning of the parties in insisting upon this rule as part of their contract. If asked what business he carried on, .for the purpose of determining the hazard, and thereby the premium, the assured would have answered, shoemaking by machinery. If asked what light he used, he would then have answered, gas from petroleum, or as the case might be. The very fact that a different clause is introduced into the policy to provide against lighting by petroleum or its products, evidences that the tenth rule was not supposed to cover the case. Expressio unius est exclusio alterius. There is, therefore, no clause which by contract avoids the policy, if the prohibited thing be introduced, so that the cáse fell back upon the questions submitted by the court to the jury, whose finding shows that no loss resulted from anything forbidden in the policy. We discover no error in the record.

Judgment affirmed.