author: Mr. Justice Paxson

text:
    PHILADELPHIA COUNTY.
    January Term, 1882,
    No. 321.
    January 8, 1883.
    Boswell’s Appeal.
    1. A mortgage was given to secure a bond to A and E conditioned for the payment of $5,000 “at the expiration of ten years from the date thereof,” with interest payable half yearly to T, and in case of the death of T before the expiration of the ten years, the interest to be paid to the obligees. The consideration for the bond and mortgage was the sale of certain real estate in which T had a life estate. Before the expiration of the ten years, the mortgagors and the assignee of the mortgagees, entered into an agreement which recited that T had, for a good consideration, released to the mortgagors all of her interest, and provided that the mortgage should “ be considered and taken as now due and owing,” that all questions in dispute should be submitted to three arbitrators, that the aWard of the arbitrators or a majority of them should be final and conclusive, that the award should determine the present value of the interest of the assignee and the amount owing to him, and should take into consideration the value of the interest of T, then released to the mortgagors. It further provided that the mortgagors should pay the costs of the arbitration and make a deposit for the purpose, and should give a mortgage to secure the performance of the award. The deposit was duly made and the mortgage given. The arbitrators met and heard the parties, but were unable to make an award, because no two of them could agree upon the sum due. Held, that the agreement being founded upon a full and sufficient consideration, and it not being possible to restore the parties to their former position, a court of equity had jurisdiction to give the relief contemplated by the parties when they agreed upon a reference, and to ascertain the amount due upon the mortgage, and decree its satisfaction upon the payment of such amount.
    2. In ascertaining the amount due upon the mortgage, the master in the Court below deducted from the sum named in it the value of the life interest of T, as shown by approved annuity tables. Held, that this was proper deduction.
    3. A, one of the mortgagees, died, having bequeathed all of her interest in the mortgage to E, the other mortgagee, who was living at the time of the suit. The mortgagor was permitted to testify that he had never made any agreement that a due bill made to him by E for advances should not be used as a set-off against the mortgage. Held, that he was a competent witness for the purpose.
    4. The mortgage recited a promissory note made by the mortgagor to the mortgagees for $2,000, “ the said amount having been received by him from them.” The note set forth that it was given “as a collateral security ” for the sum secured by the bond, and “ if the conditions in said mortgage are complied with, then this note to be null and void, otherwise valid.” The master found, as a fact, that the note was without consideration. Held, that the note being manifestly but collateral to the mortgage, it should, upon the payment of the latter, be surrendered to the maker.
    5. The allowance of costs to the defendant is a matter in the sound discretion of the Court below.

      Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of William L. Boswell from tlie decree of the Court of Common Pleas No. 4 for the County of Philadelphia.

    Bill in equity between Evan W. Thomas and Martha G., his wife, complainants, and William L. Boswell and Eliza S. Thomas, respondents. Separate answers were filed by the respondents, and the cause was referred to Silas W. Pettit as master and examiner, who reported the material facts as follows:
    In 1864 Evan W. Thomas was seized of an undivided one-half interest, and his sisters, Annie and Eliza S. Thomas, were seized each of an undivided one-fourth interest in a farm called “Oakwood,” near North East, Maryland, the whole being subject to a life estate in their mother, Ann Thomas. In 1869, at the suggestion of Evan, and by his advice, the farm was exchanged for a house in Philadelphia. For the sake of convenience, at the suggestion of the attorney who drew the papers, the title was made to Evan as to one half and to Annie and Eliza as to one fourth each, without mention of the interest of the mother. The value of this property over the incumbrances was about $4,000. It was unproductive, and was subsequently exchanged for a farm near Berlin, Maryland. Evan, at this time, offered to take the farm, and to secure to his mother $300 a year for life, and at her death $4,000 ($2,000 to each) to Annie and Eliza, which offer was accepted. The papers drawn did not follow the agreement. Évan executed a bond conditioned for the payment of $5,000 to Annie and Eliza at the expiration' of ten years, and for the payment of the interest to Ann Thomas for her life, or for ten years, whichever should be the longer, and, in case of her death, to her daughters. The bond was dated October 1, 1870, and was secured by a mortgage executed by Martha G. Thomas, wife of Evan, upon her one-fourth interest in a tract of fifty-four acres on Grey’s lane, Philadelphia. Evan testified that the bond and mortgage was made for $5,000 instead of four, because the $300 annuity to his mother was the interest on that sum, and because he intended upon her death to make his sisters a present of the additional $1,000. After this mortgage had been entered up, it was agreed that it' should be satisfied, and another, called ££I,” was given in lieu of it upon other property by the same parties on the 4th of February, 1871. In order to correspond with the first mortgage, the second “I” was dated October 1, 1870. The latter mortgage recited as follows:
    “Whereas, the said Evan W. Thomas, in and by his certain promissory note, made on the day of the date of these presents, in favor of the mortgagees herein named, for the sum of $2,000, with interest payable in one year from the date thereof, said amount having been received by him from them ; and whereas said Evan W. Thomas, ... in and by a certain obligation, . . . stands firmly bound unto the said Annie Thomas and Eliza S. Thomas in the sum of $10,000, , . . conditioned for the payment of $5,000, ... at the expiration of ten years from the date thereof, with interest thereon at the rate of six per cent, per annum, payable half yearly unto Ann Thomas, widow of Thomas S. Thomas, deceased ; and in case of the death of said. Ann Thomas before the expiration of said ten years, the said interest to be. paid half yearly unto the said obligees therein mentioned.”
    The note referred to was as follows:
    “Philadelphia, October 1, 1870.

    Twelve months after date, I promise to pay to the order of Annie Thomas and Eliza S, Thomas the sum of two thousand dollars for value received. This note is given as a collateral security for the payment of five thousand dollars, which sum is secured by bond bearing even date herewith, which bond and this note are both recited in a mortgage of same date on premises in Twenty-seventh ward, containing twenty-four acres. If the conditions in said mortgage are complied with, then this note to be null and void, otherwise valid.
    E. W. Thomas.”
    The note was without consideration.
    In December, I860, Eliza Thomas gave a due bill to her Brother Evan for $1,750, being the amount due to him for sundry advances made by him to her up to that time. August 8, 1873, Annie Thomas died, having bequeathed all of her property to her sister Eliza, and Eliza, in December, 1873, assigned the mortgage to William L. Boswell. The existence of the mortgage was an embarrassment in the partition and sale of the tract of twenty-four acres bound by it. June 3, 1879, the complainants and Boswell entered into an agreement, which recited that Ann Thomas had, for a good consideration given to her by Evan W. Thomas and wife, released to them all of her interest in the mortgage. It provided, inter alia, that the mortgage, “ so far as the interest therein of said William L. Boswell as assignee aforesaid is concerned, shall be considered and taken as now due and owing, and we, the said William L. Boswell and the said Evan W. Thomas and Martha G-., his wife, do hereby agree to submit to the award of George Tucker Bispham, Solomon M. Cooper, and E. C. Irwin, or a majority of them, mutually chosen by us, all questions in dispute, including all questions of law, equity, and fact, in regard to the said mortgage and the amount now equitably owing as aforesaid thereon, and we hereby respectively bind ourselves to submit to and be finally concluded by the award of said referees or a majority of them, and we furthermore agree that the said referees shall by their award determine and decide what is the present value of the interest of said William L. Boswell as assignee aforesaid in said mortgage, and the amount owing to him as aforesaid from the said Evan W. Thomas and Martha, his wife, and in making such decision, and determining such value, the said referees shall take into consideration the value of the interest held therein by Ann Thomas, now released to the said Evan W. Thomas and wife, as above recited.”
    Plaintiffs also agreed to pay the expenses of the arbitration, and deposited $100 with the attorneys of the defendant for the purpose. They gave a mortgage in $5,000 to secure the performance of the award, and agreed that, in case of their failure to comply with it within ninety days, “a scire facias shall immediately issue.”
    The arbitrators met and heard the parties, bnt were unable to make an award, as no two of them could agree upon the sum due upon the mortgage. The complainants then tendered to the defendant $39 44. They arrived at this sum by treating the mortgage as good for the $4,000 originally offered and accepted, deducting from it the value of the life interest of Ann Thomas at $1,278 16, setting off the amount of the due bill and interest, $2,-684 28, and adding to the balance some interest and the costs of satisfaction. This tender was refused, and they then paid the sum named into Court. They thereupon filed their bill, in which they prayed that the defendant be ordered to enter satisfaction upon the record of the said mortgage, and to deliver them up with the two bonds and the $2,000 note.
    The answer of the defendant Boswell set forth, inter alia:

    “ When the last-mentioned mortgage, executed February 4,1871, . . . was being made . . . learning that Eliza had some time previously given Evan a due bill lor some amount which she seemed to have an uncertain and indefinite recollection of, but which it was agreed between them at the time of making the same, was never to be paid by her unless she was able to pay, by reason of anticipated success in music-teaching, I advised that this mortgage should be so drawn that the due bill could not be made a set-off to the amount which Eliza was to receive for her interest in the Broad street property, to wit: $2,500. This matter was duly considered by the parties in interest, and it was agreed that the said due bill was not to be a set-off to Eliza’s interest in the mortgage, and the conveyancer was instructed to prepare the mortgage accordingly, and in such a way as to protect Eliza from any claim ever being made against her by way of a set-off on this due bill. In pursuance of this agreement, Evan W. Thomas wrote and signed the note of $2,000, dated October 1, 1870, to be used as a set-off to the aforesaid due bill in the event of said Evans attempting to use the due bill as a set-off to the said mortgage. Before the assignment of the mortgage was made to me, I spoke to him for the purpose of ascertaining positively from him whether he intended ever to make any claim upon this due bill against the said mortgage, I having in view its purchase from Eliza, who was then the owner of the whole mortgage, and asked him whether he intended to claim the said due bill as a set-off to the mortgage, and he replied, in substance, that he would not seek to assert his right of set-off of the due bill against the mortgage, and gave me to understand that there was no necessity of my taking a declaration of no set-off in writing.”
    The answer, of Eliza S. Thomas alleged, inter alia:

    was no the said second mortgage than that given for the first, but, for the purpose of preventing a due bill held by my brother against me from being made a set-off against my interest in said second mortgage, the amount of the second mortgage was increased. This note was given to be used as a set-off to my due bill, held by my brother, in the event that he should attempt to make the due bill a set-off against the mortgage. I was informed, and believed, and now believe, that Evan had agreed, prior to the assignment of the mortgage to Mr. Boswell, that the due bill should not be set-off against the mortgage.”

      Evan W. Thomas, one of the plaintiffs,
    testified in his own behalf. In the course of his testimony-in-chief, counsel for the defendant objected to his competency, and moved to strike out so much of his testimony as related to transactions anterior to the death of Annie Thomas, stating that it was by inadvertence that he did not object when the witness was first sworn.
    This witness testified in rebuttal:
    “Nothing was said by me to Eliza in reference to the due bill at that time. All that was said was said to me by Eliza in her letter of September 10,1870, in which she states substantially that the due bill would be a set-off to the mortgage. There never was any agreement upon my part but that it should be a set-off to her mortgage.”
    The master found, inter alia, as follows :
    “The first question to be answered is whether the plaintiffs can sustain their bill at all. The master is of the opinion that by the agreement of June 3, 1879, above mentioned, the mortgage in dispute must be considered to have become due and payable then, and that, although the arbitrators were unable to come to any conclusion, yet as the plaintiffs had, on the faith of that agreement, provided for the life interest, which all concede Mrs. Ann Thomas had in that mortgage, and have secured her release of the same, and cannot now be restored to their former position, the finding of the Court must be substituted for the expected finding of the arbitrators, and the agreement of the parties, to wit: That the amount due on the mortgage be ascertained, paid, and the same satisfied, carried into effect, etc.
    The third question, and one not so easy of solution, is whether or not the plaintiffs have a right to set-off the due bill given by Eliza to Evan for $1,750 against the mortgage now held by Mr. Boswell and the subject of this controversy.
    If Mr. Boswell cannot swear on the stand to a positive agreement by Evan not to set-off the due bill, and Eliza can only say she has been informed of such an agreement, there is nothing in the testimony of Mr. Waxier or Mr. Jacquette to shake the testimony of Evan and the letter of Eliza, and the master finds, as a matter of fact, that there was no agreement that the amount of the due bill of Eliza to Evan, dated 31st December, 1869, should not be defalked against the mortgage in dispute.
    As matter of law, Mr. Sharp, for the defendants, raised and pressed with much ingenuity several grounds of objection to the allowance of this set-off, viz: that set-off is of purely statutory origin, and is given by our statute to a defendant only, and hence cannot be set up here by a plaintiff, that if admissible on other grounds, it can only be setup as against Eliza’s original one-half interest in the mortgage, because, as to the other half, she was an assignee of her sister Annie’s share by will, and that a set-off against an assignee cannot be set up against an assignee of an assignee, citing: Blair Mathiott, 10 Wr.’, 262; Downey v. Tharp, 13 P. F. Sm., 322; and, there-' fore, cannot be set up as against that half interest in the mortgage held by Boswell as assignee of Eliza, who was assignee of Annie; and it was also urged that as Annie, the assignor, was dead, Evan, as a party at interest, was not a competent witness to attack any interest of which she was assignor.
    The master cannot coincide with these views. This is a proceeding in equity in the nature of a bill to redeem, and necessarily involves the ascertainment of the precise amount due on the security to be so redeemed. Defalcation has always existed in equity ; commended by its inherent justice, it was imported from thence into the common law courts by statute, but the statute neither creates, limits, or affects the remedy to be given in equity, and hence can have no application to the case in hand. It is a necessary part of the proceeding here that the amount due upon the mortgage which they seek and have a right to redeem should be ascertained, and it is certainly competent for the plaintiffs to deduct the amount they have already advanced on account thereof as against a holder who took, whether for value or not does not appear, but certainly and confessedly with full knowledge both of the advances and of the fact that they were to be deducted.
    That Evan W. Thomas is a competent witness is apparent when it is remembered that he seeks no set-off as against Annie, who is dead, and makes no claim as to ' her, nor testifies to anything concerning her, but only to payments made to Eliza, who is living and has not disputed them ; he is not within the spirit of the act, and it would be ah unwarranted extension of the letter of the proviso to the act of 1869 to hold that where plaintiff sues on a security acquired from one who has since deceased, the defendant’s mourh is shut to prove a debt due him by the assignee, which is the necessary result of the defendant’s contention ; it would seem to*be unnecessary to do more than state the proposition.
    Again, the mile invoked that the debt of an assignee cannot be set-off against his assignee has no application to this case. As before said, this is a bill to redeem, and Mr. Boswell can in equity claim no higher right than his assignor had at the time of her assignment to him, more especially when he had full knowledge of what that right exactly was at the time he took the assignment. In December, 1873, Eliza Thomas could have claimed of Evan, had the mortgage been then due, the sum of $5,000, less the amount he had already paid her on account, and of which Mr. Boswell had knowledge, and she could give and he could acquire no higher or greater right than that. The cases cited on the other side were both at law, and based upon the wording of the statute, which, as we have seen, has no application in equity, and in neither of them had the assignee notice of, the counter-claim, which, in this case, he himself admits he had.
    The master, therefore, finds that the amount of the due bill for $1,750, with interest, should be deducted from the amount of the mortgage in controversy.
    With interest added and credit given for a small partial payment, the exact amount due on the due bill from Eliza Thomas to Evan W. Thomas was on 3d June, 1879, the sum of $2,684 25, (Bill, § XXIII.)
    It is to be remembered, too, that in this case the claim of Evan against Eliza is not unconnected with the claim she had against him, and assigned to Mr. Boswell — the several sums which composed the $1,750 for which the due bill was given were rather advance payments on account than a separate debt, and as such were peculiarly the subject of equitable cognizance: 2 Story Eq. Jur., s. 1435; Hankey ®. Smith, 3 Term Rep., 507; Lanesborough ®. Jones, 1 P. Wms., 326 ; Jeffs.®. Wood, 2 Id., 129.
    And, therefore, in equity Mr. Boswell can be held to have acquired no greater right against Evan than he knew his assignee could give him, to wit: The difference between his mortgage and his advance to her, and this without reference to the peculiar or restricted wording of the statute of defalcations, which applied only to proceedings at law.
    The fourth question is as to the deduction, if any, to be made for the value of the life interest of Mrs. Ann Thomas in the income secured by the mortgage.
    As already stated, the master is of opinion that the mortgage in controversy is now due by agreement of the parties as of the 3d June, 1879 ; and it follows that the holder of the incumbrance must make deduction for the value of the estate in it of the life-tenant, of which he has been relieved by her release obtained by the plaintiffs. It is manifest that a less sum than $5,000 paid on 3d June, 1879, the interest of which would be presently payable to him, would be a full compensation to Mr. Boswell for a security for that $5,000, not payable until after Mrs. Thomas’ death, and the interest on which in the meantime goes to her. A deduction, therefore, must be made.
    The true measure of .that deduction is, however, somewhat difficult of ascertainment, but the master has adopted, with some hesitation, the valuation of an annuity of $300 a year to a person of Mrs. Thomas’ age on 3d June, 1870, as that deducted.
    In Shippen’s App., 30 P. F. Sm., 391, the Supreme Court refused to adopt the annuity tables as evidence, and instead adhered to the common law rule of deducting one third as the value of a life-interest, but the Court intimate that they adopt it for that case only, and in view of its peculiar circumstances, but the master would suggest that the deduction of the arbitrary fraction of one third in the case in hand would be unfairly onerous on the holder of the mortgage in dispute, while the general admissibility in evidence of the approved mortality tables, for the purpose of fixing a value on life-interests, has been so often recognized, and is justified by so many reasons, that he has felt it best to adopt it in this case: Mills ». Catlin, 22 Ver., 106; How v. How, 48 Maine, 428; B. Bd. Co. v. Oaks, 52 Gta., 410; Williams’ case, 3 Bland, ch. 221.
    The case last cited contains a full review of the decisions on the subject, and amply vindicates the propriety of receiving such tables in evidence.
    The master took the amount of the mortgage, $5,000, deducted the value of the life-interest of Ann Thomas, $919 56, and the amount of the due bill and interest, - $2,684 28, and found a balance with interest and costs of satisfaction of $1,564 12. He then reported a decree that the plaintiffs pay the defendant this balance, and that the defendant, upon receipt of said sum, satisfy the mortgages, and surrender them with the bonds and note for cancelation, and that the plaintiffs pay the fees of the master and examiner, and the costs of Eliza S. Thomas.
    To this report the defendant filed exceptions, which the Court, December 27, 1881, dismissed.
    The defendant then appealed, assigning that the Court erred in dismissing the exceptions, making the decree, refusing costs to Boswell, and:
    “ Fifth. In finding that, by the terms of the agreement of June 3, 1879, the said mortgage was due when the bill was filed.

      Sixth. In finding that the plaintiffs below are entitled to deduct from the amount of the said mortgage the value of Mrs. Ann Thomas’ life-estate therein.

      Seventh. • In finding that it was not agreed, when the said mortgage was taken, that the due bill of Eliza S. Thomas should not be a set-off against it. .

      Eighth. In finding that Evan W. Thomas, a party in interest, is a competent witness, when, as is admitted, Annie Thomas, the assignor of the mortgage — ‘the thing or contract in action’ — is dead.”

      Sharp (6 Alternan for the appellants.

      First. The answers must be taken to be true unless overcome by the testimony of two credible witnesses, or at least by that of one such witness and strongly corroborating circumstances: Carpenter v. Ins. Co., 4 How., 185 ; Audenreid’s Appeal, 8 Nor., 114; Barclay’s Appeal, Leg. Int., 1881, p. 440.
    And the principle has peculiar force in this case, because there are two answers under oath denying the material facts upon which the plaintiffs rely.
    We say, in the first place, that the agreement failed of its purpose and became impotent when the referees failed to agree ; and, secondly, that if it did not, the Court has no power to make any rebate from the face of the mortgage for the value of Ann Thomas’ life-estate. It is plain, from the reading of the agreement as a whole, that the appellees only desired the mortgage satisfied, and that the appellant consented to an ascertainment of its present value only upon terms.
    It should be .observed that in this agreement a particular mode of ascertaining the value of the interest of Boswell is prescribed — -by the award of referees. When that is the case, it should be exclusive of all other modes. Expréssio unius est exclusio alterms. See Commonwealth v. Erie R. W., Leg. Int., 1881, p. 334.
    Again, an agreement made for the admitted benefit or accommodation of one of the parties should be construed against him in a doubtful case.
    But a construction which involves a want of mutuality in a contract is not to be adopted, except that be its plain meaning. Now, is it not plain that Mr. Boswell could not have sued out a sei. fa. on the new mortgage after the referees had failed to agree ? He can sue on it only for the amount of the award of the referees when ninety days have passed after the award is made.
    Nor could Boswell have maintained any form of action when the bill was filed. Therefore, even if the Court should be of the opinion that the agreement of June 3, 1879, has not spent its force, and that it does provide that the mortgage shall be deemed dne, yet the referees only have the right, under the agreement, to deduct the value of Mrs. Ann Thomas’ life-estate.
    Thus far we have argued the matter as if Evan were a competent witness in the cause, but we submit that he is not a competent witness. He is a party in interest, and, therefore, not a witness at common law: Act of April 15, 1869, s. 1, Purd. Dig., p. 624, pi. 16.'
    That Annie has no connection with the subject of the set-off is not to the point. The act does not say that a party to a suit may now testify, except as to matters in which the assignor was interested. It says he shall not testify in the “action” where the assignor of the thing in action is dead. Our case is simply one not covered by the act. The spirit of modern legislation may look in the direction of a party’s competency, but that argument does not meet the case: Karns ¶. Tanner, 16 P. F. S., 305.

      Benjamin H. Haines and John M. Washburn for the appellees.
    The answer is only evidence where it is responsive to 'the bill. Statements not strictly responsive must be proved aliunde: 3 Green Ev., s. 290; Eaton’s Appeal, 16 P. F. S., 490.
    The appellant’s argument that Evan is not a competent witness because Annie, the assignor, is dead, is fully answered by the master.
   Mr. Justice Paxson

delivered the opinion, of the Court, March 5, 1883:

A careful examination of this record fails to disclose any substantial error.

The most serious question presented is contained in the fifth assignment, which alleges the Court below erred ‘ ‘ in finding that, by the terms of the agreement of June 3, 1879, the said mortgage was due when the bill was filed.” The agreement expressly stipulates that the said mortgage “shall be taken and considered as now due and owing.” The object of the agreement was to provide for the settlement of certain matters in dispute between the parties, and as a means to this end it was agreed to submit ‘ ‘ to the award of George Tucker Bispham, Solomon M. Cooper, and E. C. Irwin, or a majority of them, mutually chosen by us, all questions in dispute, including all questions of law, equity, and fact, in regard to the said mortgage and tlie amount now equitably owing as aforesaid thereon, and we hereby respectively bind ourselves to submit to and be finally concluded by the award of said referees, or a majority of them,” etc. The failure of the referees to make an award by reason of the inability of any two of them to agree upon an amount brought this proceeding to a stand-still, and there being no provisions i'n the agreement itself for such a contingency, this bill was filed in the Court below to obtain the relief contemplated by the parties when they agreed upon a reference.

We have no doubt of the power of a Court of equity to grant relief in such a case. The failure of the reference was by no fault of either party, and the case does not come within that line of authorities which hold that where the parties stipulate upon a sufficient consideration that disputes, actual or prospective, shall be submitted to the arbitrament of a particular individual, they are bound by their contract and cannot seek redress elsewhere : Leebrick v. Lyter, 3 W. & S., 365 ; Monongahela Navigation Company v. Fenlon, 4 Id., 205 ; McGrheehen v. Duffield, 5 Barr, 499. In each of the cases cited, the plaintiff repudiated the tribunal agreed upon and sought to recover by an action at law.

Here the parties submitted in good faith to the tribunal of their own creation, and it was only upon a failure to obtain any result whatever that a court of equity was invoked to enforce the agreement of June 3, 1879. This was not a mere naked submission, which either party could revoke at pleasure at any time before award. It was founded upon a full find sufficient consideration, and is irrevocable. The consideration was, therefore: 1st. The giving by the appellees of their mortgage to the widow, Ann Thomas, to secure her annuity of $300, and the procuring from her a release of her interest of the mortgage in controversy. 2d. The giving by the appellees of their mortgage for $5,000 to the appellant to secure the performance of the award on their part, and 3d, the payment of $100 by Evan W. Thomas, one of the appellees, in advance, for the costs of the reference. It is true the mortgage to secure the annuity was executed several months in advance of the agreement of June 3, but it is averred in the bill, and not denied, that it was prepared in anticipation of such an agreement., ready to be delivered when the same should be consummated, and was not delivered until that time.

The learned master finds : “ That by the agreement of June 3, 1879, above mentioned, the mortgage in dispute must be considered to have become due and payable then, and that although the arbitrators were unable to come to any conclusion, yet as the plaintiff had, on the faith of that agreement, provided for the' life interest, which all concede Mrs. Ann Thomas had in that mortgage, and have secured her release of the same, and cannot now be restored to their former position, the finding of the Court must be substituted for the expected finding of .the arbitrators, and the agreement of the parties, to wit: “That the amount due on the mortgage be ascertained, paid, and the same satisfied, carried into effect.”

The parties having been fully heard before a tribunal specially adapted to the investigation and decision of such complicated questions, we are not disposed to disturb the decree unless it be shown that it is erroneous for other reasons. This has not been done.

The amount due upon the mortgage appears to have been correctly ascertained. The note of Evan W. Thomas for $2,000 was manifestly but collateral to the mortgage, and when this latter is paid, no good reason is apparent why the note in question should not be surrendered to the maker. The allowance of costs to the appellant was a matter within the sound discretion of the Court below, and it appears to have been properly exercised.

The decree is affirmed and the appeal dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Pbr Curiam

license: Public Domain

text:
    January Term, 1882,
    No. 420.
    January 9, 1883.
    Bowers v. Schweer.
    A and those under whom he claimed, successive owners and occupants of a certain lot, for more than twenty-one years had continuously used, for the exclusive benefit of the house on that lot, an alley running over the soil of the rear end of an adjoining corner lot into a street upon which the corner lot fronted, and had always maintained a locked gate at its outlet. B, the owner of the adjoining corner lot, having removed the gate under claim of ownership in the soil upon which it was placed, and trespass for the act having been brought by A;
    Held, That such continued adverse enjoyment under a claim of right, for so many years-, gave a title to A which could not be revoked.

      Held further, That without regard to the original title to the soil, this was a notorious and permanent dedication of the exclusive enjoyment thereof which had fully ripened, was now vested in A, and which gave him a right to maintain the gate, and under evidence of injury thereto, a remedy in damages against the wrongdoer.

      Before Merotjr, C. J.; Gordon, Paxson, Trttnkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia Qounty.

    Trespass on the case by Henry C. Sehweer against N. S, Bowers to recover damages for the removal by defendant of a locked gate from the entrance to an alley, the exclusive use of which is claimed by plaintiff.
    On the trial, January 17, 1882, the following facts ap-. peared:
    On August 5, 1851, Patrick Lacy became seized of two adjoining lots and messuages described separately as follows :
    No. 1. (On plan infra.) S. W. corner Girard avenue and Tenth street, Twentieth ward, Philadelphia, front on Girard avenue eighteen feet, depth along Tenth street sixty-five feet six and three eighth inches.
    No. 2. South side of Girard avenue eighteen feet west of Tenth street, front on Girard avenue sixteen feet, depth of that width south sixty-five feet six and three eighth inches.

    No alley is mentioned in the deed for these lots.
    The evidence was that Lacy, who occupied the corner house and lot No.- 2, laid out the alley and put up a gate at its Tenth street outlet as far back as 1854; that the alley and gate were used only by the occupants of premises No. 2; that there was a fence on the north side of the alley and a dead wall on the south ; that there was never a gate into the alley from lot No. 1, nor from the property on the lower side, and that the house on lot No. 1 had an entrance upon Tenth street directly from its yard.
    On September 28, 1877, Henry C. Sehweer, plaintiff below, became seized in fee of lot No. 2 by deed from the vendee of the heirs of Patrick Lacy, whose will had been proved November 19, 1872. On the same day the widow and heirs of Lacy (who in their deed to Sehweer’s grantor had made no mention of the alley) granted to Sehweer, his heirs and assigns, “the free and uninterrupted use, right, liberty, and privilege of, and passage in and along a certain alley or passage of two feet three inches in width, by eighteen feet in depth, extending out of and from the west side of Tenth street, in the said city of Philadelphia, along and over the south side of a certain lot or piece of ground situate at the south-west corner of said Tenth street and Girard avenue, and communicating at the western end of said alley with a certain lot or piece of ground, situate on the south side of said Girard avenue at the distance of eighteen feet westward from the west side o'f the said Tenth street; being the same alley or passage-way which the said Patrick Lacy opened for the use forever of the lot or piece of ground second above mentioned, over and along the south side of the lot or piece of ground first above mentioned, and the said alley having been in continuous and uninterrupted use by the tenants, owners, or occupants of said lot of ground second above mentioned for the past twenty-five years, with the privilege to lay beneath the soil of said alley drainpipes, water and gas pipes, and to use the surface of the same as a water-course, and with free ingress, egress, and regress to and for said Sehweer, his heirs and assigns, his and their tenants and under-tenants, occupiers or possessors of the said lot (No. 2) at all times hereafter forever ; reserving the right to build over the whole of said alley or passage-way at any time hereafter, leaving at least eight feet headway in the clear.”
    On November 6, 1878, the grantors in the deed last-above- recited conveyed to Maurice Hayes in fee the lot and messuage (No. 1) south-west corner Tenth street and Girard avenue, (as described supra,) “including on the rear end thereof the soil of a certain alley two feet three inches in width, leading into and from said Tenth street.”
    Subsequently, November 11, 1878, Hayes conveyed the premises described in the last deed (No. 1) to N. S. Bowers, the defendant.
    At the time of the conveyance to Sehweer, there was a gate at the alley, Tenth street outlet, fastened on the inside by a bolt. Sehweer testified: “I took the old gate off, and' put a new gate there, and paid for it. The new gate was secured on the inside with bolt and lock, a dead-latch. I used the alley exclusively. Albert Jakemot occupied the corner when I went there. Bowers came to live there after I moved there, about two or two and a half years after. I continued to use the alley four years this way. Last April, 1881, sister and mother were washing out the alley, and sister told me that Bowers had taken the gate off, and would not give it back. I demanded it; I opened his gate and went into his yard for it. He said, ‘You cannot have it.’ I said to him that I had the gate made ; I am going to sue you. He said, ‘All right; I want you to sue me.’ Mr. Bowers never asked me for admittance to the alley.”
    On cross-examination, witness said: “Mr. Bowers made repairs to the alley. Mr. Bowers built over the alley about two years ago. He took down the gate and replaced it when the work was done. He made repairs to the alley about one year ago. The pavement had sunk from repairs in his yard.”
    The defendant offered no testimony, and presented the following point:
    “The plaintiff cannot recover under the evidence in this action, and the verdict must be for the defendant.”
    Answer refused. (First assignment of error.)
    The Court charged, inter aha, as follows :
    “If you are of opinion that during and ever since Patrick Lacy’s time, that is, for twenty-one years, this alley has only been used for the second house, and during all that time the owner of the second house had always maintained a locked gate, your verdict should be for the plaintiff.” (Second assignment of error.)
    The Court further charged the jury as follows :
    “If you think from the evidence that Patrick Lacy and the successive occupants and owners have always maintained a locked gate at this alley, defendant had’no right to take it down, and the verdict should be for the plaintiff.” (Third assignment of error.)
    January 15, 1882, verdict for the plaintiff, $10, and judgment thereon, whereupon defendant took this writ, assigning for error the refusal of his point and the portions of the charge above quoted.

      William Gorman for plaintiff in error.
    Did the deed of September 28,1877, give to the defendant in error an exclusive right to use the alley ? This deed grants to Sehweer the free and uninterrupted use, right, liberty, and privilege of and passage in and along this alley. 'This is a grant of a mere easement. A grant of the right of way does not convey the soil: Aqueduct Co. v. Chandler, 9 Allen, 159. The grantee of an ease-meat cannot prevent another person, even a trespasser, from using the land, if such usage does not impede him in the exercise of his right of passage: Rex v. Jolliffe, 2 T. R., 90; Cook Co. v. Chicago R. R. Co., 35 111., 464; Goddard on Easements, (Bennett’s Ed.,) p. 5; Ackroyd v. Smith, 10 C. B., 164; Rangeley v. R. W. Co., L. R. 3 Ch. Ap., 310; Warren v. Blake, 54 Me.', 276; Grant v. Chase, 17 Mass., 443.

      P. K. Prdman and B. P. Pisher for defendant in error.
    It is well settled in Pennsylvania that servitudes imposed by the owner of land, which are plainly visible or notorious, and from the character of which it "may fairly be presumed that he intended their preservation as necessary to the convenient enjoyment of the property, become, when the lands are divided and pass into other hands, permanent appurtenances thereto: Phillips ». Phillips, 12 Wr., 178; Penna. R.■ R. Co. v. Jones, 14 We., 417. The defendant in error had, then, a right to maintain a gate at the mouth of the alley as an appurtenant to his messuage ; and this aside from any right derived by the deed from Patrick Lacy’s heirs, though its use in connection with the alley, visibly and notoriously established by Patrick Lacy, and by him and the tenants .and occupants of the lot of defendant in error maintained uninterruptedly for a period of twenty-five years prior to the trespass in this case.
    The deed of the heirs of Patrick Lacy to defendant in error, with the attending circumstances, gave him an undoubted right to use the alley and maintain a gate, as .had theretofore been done. The deed recites that it was opened by Patrick Lacy “for the use forever” of the lot above mentioned.
    There is in this deed no reservation of any right to the grantors for the use of the alley,, except the right to build over. Inclusio unius est exclusio alterius.

    The grant of the “free and uninterrupted use” of the alley, in the absence of any conflicting reservation, in language indicating only a common use, confers an exclusive use: Kirkham ■». Sharp, 1 Wh., 323; Lewis v. Carstairs, 6 Wh., 193; Cope v. Grant, 7 Barr, 488.
    January 22, 1883.
   Pbr Curiam

: The jury have found, on sufficient evidence, that the defendant in error, and those under whom he claims, the successive occupants and owners of the lot for more than twenty-one years, liave continuously used the 'alley for the benefit of the house on the lot, and have always maintained a locked gate thereat. This continued and adverse enjoyment, under a claim of right for so many years, gave a title which cannot be revoked. Without regard to the original title to the soil, this was a visible, notorious, and permanent dedication of the exclusive enjoyment thereof, which has fully ripened, and is now vested in the defendant in error. This gave him a right to maintain the gate, and, under the evidence of injury thereto, a remedy in damages against the wrong-doer.

Judgment affirmed.


author: Sterrett, J.:

text:
    January Term, 1883,
    No. 158.
    April 30, 1883.
    Appeal of Henry C. Brolasky.
    1. A testator devised a house and lot to his daughter “ subject to a mortgage of $5,000, but in the event of my daughter releasing and handing over a certain note or due bill of $5,000 given by me to her, unto my executors, then 1 direct that the said mortgage of $5,000 be paid by them out of my estate.” Upon the death of the testator, the devisee notified the executor of her readiness to surrender the due bill whenever he was prepared to pay the mortgage, the executor having neglected to pay either the principal or interest of the mortgage debt. Held, That the devisee, having been compelled, in order to prevent a foreclosure, to pay the interest on the mortgage, was entitled to claim upon her due bill against the estate a sum sufficient to satisfy the mortgage and to re-imburse her for the interest down to the date of the audit.
    2. A devisee of real estate subject to a mortgage is entitled to be re-imbursed out of the estate of the testator for interest on the mortgage due, and taxes accrued, during the lifetime of the testator, which had been paid by the devisee.
    3. A devisee of real estate for life, “ she, in the meantime, paying all taxes and keeping the same in repair,” is'entitled to be re-imbursed out of the estate of the testator for taxes paid by her which had accrued before his death.

      4. Where a bequest for life, subject to annuities, has been accepted by the legatee, the burden of proof is upon him, and upon his executor, to show that the income is not sufficient to pay the amount of the annuities.
    Before Mebcub, C. J., and Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of Henry 0. Brolasky, one of tbe residuary legatees and devisees under tbe will of Simon Brolasky, deceased, from the decree of the Orphans’ Court of Philadelphia County, dismissing exceptions to the adjudication sur the first account of the executor, and confirming-said adjudication.
    Simon Brolasky died January 13, 1881. Letters testamentary upon his estate were granted, January 20, 1881, to Henry C. Brolasky, who was one of the residuary legatees and devisees.
    In his will he devised and bequeathed, inter alia, as follows:
    “Item 6th. I do give, devise, and bequeath the following properties hereinafter named as specified to each, their respective heirs and assigns forever.
    Messuage and lot No. 938 Race street, in the-ward of the city of Philadelphia, to my daughter Mary Ann, subject to $3,100 mortgage. ****** * * * *
    Messuage and lot No. 712 North Fifteenth'street, in Fifteenth ward of the city of Philadelphia, to daughter Linda Crawford, subject to a mortgage of $5,000, but in the event of my daughter releasing and handing over a certain note or due bill of $5,000, given by me to her, unto my executors, then I direct that the said mortgage of $5,000 be paid by them out of my estate.
    I do give to my said daughter Mary Ann, for and during all the term of her natural life, the use, occupancy, and possession of the house that is in process of building on the east side of South Broad street, No. 227, she in the meantime paying all taxes and keeping the same in repair, and from and after her decease, the said premises to form a portion of my residuary estate and be divided as directed by my will.”
    On the 30th of May, 1881, counsel for Linda Crawford wrote to counsel for the executor, notifying him that the interest on the mortgage of $5,000 on the property devised to her would be due on the 15th proximo, and saying : ‘ ‘ Mrs. Crawford elects that the mortgage shall be paid off, but she does not desire to restrict the executor as to time. At the convenience of the estate it may be done.”
    Her counsel wrote later: “The due bill is at hand, and will be handed over, with release, when the executor is ready. We shall, however, hold the estate for interest, and eventually the accounts will balance themselves.”
    Upon the audit of the account of the executor before Ashman, J., counsel for Mrs. Crawford presented the due bill of the testator, dated May 30, 1872, for $5,000, payable ten days after date, under the above item of the will. He tendered the due bill to the estate, and asked for interest upon it from the time of the death of the testator.
    Counsel for Mary Ann Brolasky presented a claim for interest paid by her on the mortgage upon the property 938 Race street, which was due January 31, 1881, and was paid by her March 8, 1881, amounting to $77 50. He also presented claims for taxes paid by her upon the same property, for 1880, $132 70, and for 1881, $96 98, and for taxes paid by her upon the property No. 227 South Broad street for the year 1881, $315 12. ”
    ■ The auditing judge found, inter alia, as follows :
    “ On behalf of Linda Crawford, Mr. Johnson contended that the interest paid by her, since testator’s death, upon the mortgage for $5,000, secured upon the premises devised to her, should be refunded by the estate. The executors were directed by the will to satisfy this mortgage upon the surrender, by the legatee, of the testator’s due bill for the same amount held by her. It would seem that this demand was equitable. The claimant was entitled to interest on the due bill from date of demand. This must be held to have been made at the time of the death, because the will provided for the immediate payment of the bill by the cancellation of the mortgage, and thus obviated the necessity for a formal presentment for payment. Any interest which the legatee was compelled to make on the mortgage should, therefore, be compensated by a corresponding payment to her of interest upon the due bill. The claim is allowed.”
    “On behalf of Marie Brolasky, counsel presented a claim for $77 50, paid by her as interest upon the mortgage, secured on premises 938 Race street, which were devised to her. The interest became due almost immediately after the death of the testator, and should be borne by his estate. The taxes on the same property for 1880, amounting to $132 70, and for 1881 to $96 98, and upon the-house and lot, 227 South Broad street, for the latter year $315 12, all of which were paid by the life-tenant, and fell due in the lifetime of the decedent, should also be charged to the estate, and payment of those amounts is awarded to the claimant.
    On behalf of Linda Crawford, Mr. Johnson claimed $100, and for Maria Brolasky $600, arrears of annuities due under the will of Mary A. Howell, deceased. The said testatrix, who died on or about November, 1873, devised and bequeathed her residuary estate to her brother-in-law, Simon Brolasky, for life, subject to and charged, with the payment of all debts and funeral expenses, and subject also to the payment of three annuities of $100 each during his life to Mary Ann Brolasky, Linda Brolasky, (afterwards Crawford,) and William Brolasky, the said life-tenant to pay all taxes and expenses for keeping the said residuary estate in repair. After the death of Simon Brolasky, she gave the income of the said residue to her two nieces, Mary Ann Brolasky and Linda Brolasky, for their joint lives and the life of the survivor, and she constituted Simon Brolasky and Henry C. Brolasky the executors. Neither of the executors of Miss Howells will filed any account until after the death of Simon Brolasky, when Henry C., under the spur of a citation, complied with the order of Court in that respect. The account so filed, after corrections by the auditing judge, showed a balance of principal (legacies having first been deducted) of $12,058 25.
    It did not pretend to ascertain the income which had accrued to Simon Brolasky in his lifetime, out of which the three annuities were to be paid. Henry C. Brolasky stated that his father derived no income from Mrs. Howell’s estate, and he attempted to show that fact by producing a book purporting to contain an account of receipts and disbursements in that estate, which had been kept by himself, but which, he admitted, did not exhibit all the transactions connected with the settlement. He supplemented this book with a statement given to him by his father in the lifetime of the latter, which professed to show the payments made by the father as executor and life-tenant. It is unnecessaiy to discuss the competency or incompetency of the witness, because the book and paper upon which his testimony was founded were, except as far as their entries were against the interest of decedent, inadmissable as evidence. The auditing judge is of opinion that Simon Brolasky, by accepting the gift of income under Mrs. Howell’s will, was not burdened with the annuities unless a clear balance remained which could be applied to their payments in whole or in part; but he is also of opinion that, having accepted the legacy, the burden of proof rested upon the legatee, and after his death upon his co-executors, that the income was inadequate. He had, during seven years, the beneficial management of a fund charged with legacies. It was, therefore, his duty to show that the fund was absorbed by other and necessary expenditures. No such proof was given, and the claim of Marie Brolasky is therefore allowed for arrears of annuity from 1873 to 1880, in the total sum of $600. The award of $100 demanded by Linda Crawford is also granted. A check, dated in December, 1880, for that amount. from Simon Brolasky was shown to have been paid to claimant, but the letter in which it was inclosed expressly stated that it was a gift, and that it was ‘not from Aunty’s (Mrs. Howell’s) money.’ The fact that payment of the annuities appeared to have been regularly made by Mr. Brolasky to Linda Crawford and William Brolasky, two of the annuitants, must be taken as positive contradiction of the theory that Mr. B. derived no income from the Howell estate.”
    Henry C. Brolasky, as executor and a residuary legatee and devisee, filed exceptions to the adjudication which the Court below, October 28, 1882, dismissed.
    He thereupon, as residuary legatee and devisee, appealed, assigning that the Court erred as follows .

      First. The Court below erred in awarding $5,000 and interest thereon, amounting to $385 27, to Linda Crawford, for the amount of the decedent’s due bill, which was outlawed, as the will directed the executor to satisfy the mortgage of $5,000, upon the premises devised to said Linda Crawford, upon her surrender of the due bill, and not to pay the amount of the due bill to her.

      Second. The Court below erred in awarding to Mary Ann Brolasky her claim of $77 50, being interest on the mortgage on the premises No. 938 Race street, devised to her by testator, said interest having fallen due after the death of the testator, and under the will she took the property subject to the incumbrances.

      Third. The Court below erred in awarding to Mary Ann Brolasky her claim for taxes for 1880 upon No. 938 Race street, amounting to $132 70, as under the devise she took the property subject to the incumbrances.

      Fourth. The Court below erred in awarding to Mary Ann Brolasky her claim for taxes for 1881 upon No. 938 Race street, amounting to $96 98, as under the devise she took the property subject to the incumbrances.

      Fifth. The Court below erred in awarding to Mary Ann Brolasky her claim for taxes for 1881 upon No. 226 South Broad street, amounting to $315 12, as said premises were devised to her for life, “ she paying all taxes and keeping the same in repair.”

      Seventh. The Court below erred in awarding to Mary Ann Brolasky her claim of $600 for arrears of annuity under the will of Mary Ann Howell, deceased, as by said will the annuity was payable out of the income, and no proof was adduced by her to show that Simon Brolasky was ever in receipt of any income from said estate, but, on the contrary, the testimony of the executor of the will of Mary Ann Howell clearly showed that Simon Brolasky had not enough assets to pay the debts and actually made advances.

      Eighth. The Court below erred in awarding to Linda Crawford her claim of $100 for arrears of annuity under the will of Mary Ann Howell, deceased, as by said will the annuity was payable out of the income, and no proof was adduced by her to show that Simon Brolasky was ever in receipt of any income from said estate, but on the contrary the testimony of the executor of the will of Mary Ann Howell clearly showed that Simon Brolasky had not enough assets to pay the debts and actually made advances.

      Ninth. The Court below erred in finding that it appeared that the annuities had been regularly paid by Simon Brolasky to William Brolasky and Linda Crawford, two of the annuitants, when no evidence was offered to that effect.

      Tenth. The Court below erred in confirming the adjudication of the auditing judge, and in dismissing the exceptions thereto filed by Henry C. Brolasky.

      Erancis E. Brewster & E. Carroll Brewster for appellant.
    Mrs. Crawford was bound to release and hand over the note to the executor, and demand a satisfaction of the mortgage on the devised property.
    The interest on the Race street mortgage became due after testator’s death, and his estate was not liable for it; neither was the estate liable for taxes paid after testator’s death.
    The annuitants were bound to prove the receipt of sufficient income; the burden is not on the estate to show that the income was inadequate.

      William E. Johnson for appellees.
    It was the executor’s duty to satisfy the $5,000 mortgage, and not having done so, the estate was responsible for the interest.
    Interest upon a mortgage is apportionable: 1 Swanston, 349, note ; Wilson v. Harman, 2 Yes. Sr , 673 ; Banner v. Lowe, 13 Yesey, 135; Sweigart v. Frey, 8 S. & R., 299 ; Blight ®. Blight, 51 Penna., 420; McKeen’s Appeal, 424 Penna., 485.
    The taxes were assessed and payable prior to testator’s death, and therefore payable out of his estate : Parker’s Appeal, 8W. & S., 449 ; Densmore®. Haggerty, 59 Penna., 189.
    The accounts of the annuities not being properly kept, all the presumptions are against the decedent: Gordon ®. Bowden, 6 Maddox, 342; May ®. Bennett, 1 Russell, Ch. C., 370; Davies ®. Wattier, 1 Sim. & Stuart, 463; Boyd v. Buckle, 10 Simons, 595.
   April 30, 1883.

— The opinion of the Court was delivered by

Sterrett, J.:

The house and lot on North Fifteenth street was devised by testator to his daughter, Mrs. Crawford, “subject to a mortgage of $5,000,” which he directed to be paid by his executors out of his estate, upon her delivering to them a note or due bill for same amount, which he had given her several months before. She notified appellant, who was the acting executor, of her readiness to surrender the due bill whenever he was prepared to pay the mortgage, as contemplated by the testator; but, for reasons best known to himself, he neglected to pay either the principal or interest of the mortgage debt. In the meantime, it became necessary to provide for the interest; and to prevent a foreclosure of the mortgage and sale of the property, Mrs. Crawford was compelled to pay it. The amount thus paid by her, including interest to date of audit, was $385 27. Appellant having filed his account as acting executor without paying or making provision for the payment of the mortgage, Mrs. Crawford appeared before the auditing judge and claimed out of the fund for distribution a sum sufficient to satisfy the mortgage and re-imburse her for the interest she was compelled to pay. The allowance of these items forms the subject of complaint in the first specification of error.

If appellant had been disposed to carry out the provisions of his father’s will, there was nothing to prevent him from paying the mortgage and lifting the due bill which his sister had notified him she was ready and willing at any time to deliver. After having thus neglected to do what he should have done, it comes with bad grace from him to object to the action of the Court in setting aside a sufficient fund to satisfy the mortgage. The only effect of the decree will be to accomplish just what the testator intended: the satisfaction of the incumbrance on the property devised to his daughter and the practical cancellation of his own due bill; inasmuch as no harm can possibly result from that, to appellant or any one else, his complaint is groundless.

The second, third, fourth, and fifth specifications relate to claims of Mary Ann Brolasky for interest on mortgage and for taxes on the Race and South Broad street properties paid by her. With the exception of a slight error in calculation of the interest item, covered by the second specification, these claims were correct, and there was no error committed in allowing them. "

The seventh, eighth, and ninth specifications, relating to claims of Mary A. Brolasky and Linda Crawford for arrears of annuity under the will of their aunt, Miss Howell, are not sustained. The fact was found by the auditing judge that balances were due each of them respectively on that account, and hence their claims were not improperly allowed.

We find nothing in the record that calls for either a reversal or modification of the decree.

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


text:
    January Term, 1883,
    No. 157.
    April 30, 1883.
    Appeal of Henry C. Brolasky.
    1. A testator in bis -will directed that “all charges against any of my children for moneys received by them, or paid for their account, standing on my books at the time of my decease, shall be void.” His son, being executor of the will, claimed a credit of $1,040, the amount of his own note to the testator included in the inventory. This note was never entered in testator’s books, though another of earlier date for $1,020, of which the last note was claimed to be a renewal, had been so entered and the entry afterwards erased. Held, that the executor was prima facie chargeable with the amount, and there being nothing upon the face of testator’s books to bring the note within the discharging clause of the will, nor any evidence, aliunde, releasing the debt, the accountant was properly surcharged with the amount'.
    2. An executor is not entitled to commissions upon the principal or capitalized amount of an irredeemable ground-rent, forming part of the price of real estate, out of which it is payable, sold by him.
    Before Mercur, C. J. ; Gordon, Paxson, Trun key, Sterrett, ancl Green, JJ.

      Appeal of Henry C. Brolasky, acting executor of the will .of Simon Brolasky, deceased, from the decree of the Orphans’ Court of Philadelphia county, dismissing his exceptions to the adjudication sur his first account as such executor and confirming said adjudication.
    Simon Brolasky died January 13, 1881. In his will, which .was duly admitted to probate, he directed, inter alia, as follows :
    “Item. All charges against any of my children for moneys received by them, or paid for their account, standing on my books at my decease, to be null and void.” Letters testamentary were issued January 20, 1881, to Henry C. Brolasky.
    Upon the adjudication of the executor’s account before Ashman, J., the accountant claimed credit for a note of $1,040, dated October 25, 1880, made by him to the testator, with which he had been charged in the inventory. In an account-book of the testator, containing entries for the year 1879, and some for 1880, there had been entered a note of Henry 0. Brolasky, dated January 9, 1880, at four months for $1,020. A check of the testator to the order of H. C. Brolasky for $1,000, dated January 9, 1880, was in evidence. The entry of the note for $1,020 had been stricken from the book. The accountant testified that this note was renewed, with $20 interest added, and was renewed again without interest. In the books produced there was no entry of'the note for $1,040.
    Several witnesses testified as to the existence of another account-book of the testator in which there were entries of charges against his children, and there was some testimony that his daughter, Mary Ann Brolasky, obtained possession of it after his death. She testified that she delivered all of his books to one of the appraisers. The auditing judge found, inter alia, as follows :
    “X. Note of H. C. Brolasky, $1,040. The will provided that all items of indebtedness for money received by or paid for the children, and charged against them on his books, should be null and void. The note for which this credit is claimed was drawn by H. 0. Brolasky to the order of testator, and dated October 25, 1880, at three-months.
    The only note entered on the books against the accountant was dated January, 1880, for $1,020. It was not shown that the note for $1,040 was given in renewal of that for $1,020, and the latter was not produced at the audit. It is not necessary to consider, even if the larger note had been entered, whether such entry would come within the description of charges for money “received by or paid for ” the children. The notes may have been given for another than money consideration. The fact that the note for $1,040 was not recorded on decedent’s books must be accepted as conclusive against the credit, and the latter is stricken out.
    XI. . . . The commissions of five per cent, on the mortgage of $16,000, and of ten per cent, on the collections of rent, are allowred. The- latter rate was fixed by the decedent himself, in his written agreement with ac-' countant, and continued to be paid from 1866 up to his death. But commissions are refused on the sum of $879 83, that being the principal of a ground-rent on the premises sold, and which formed part of the price upon which commissions were claimed in the account.”
    To this adjudication, numerous exceptions were filed.
    October 28, 1882, the Court, Ashman, J., dismissed the exceptions and filed the following opinion:
    ‘ ‘ The auditing j udge found as a fact that the note of Henry C. Brolasky for $1,040 was not entered upon the books of the testator, although a note of‘the accountant in the sum of $1,020, and bearing an earlier date, had been so recorded. It was claimed that the first-named note was a renewal of that which appeared on the books, and that the maker was exonerated by the testator’s direction that all items charged by himself against his children should be null and void. The necessity for discussing this point is removed by the fact which was conceded at the argument, and was apparent upon an inspection of the decedent’s books, that the entry in question had been marked out. All the circumstances indicated that the erasure had been made by the testator. This fact, which the auditing judge, in summing up the testimony, omitted to mention, is of itself conclusive against the accountant, and. the exceptions taken by him to the disallowance are dismissed. The objection to the credits of $15 and $10 respectively, for wages paid to John Clark and Eliza Johnson, having been withdrawn, those credits are re-instated, and the adjudication is further amended by striking out the allowance for commissions upon the value of the leasehold property, the claim to which was postponed by consent of counsel for hearing at the audit of a later account. The exceptions are dismissed, and the adjudication, as amended, is confirmed.”
    The accountant thereupon appealed and assigned as error:

      First. The action of the Court in striking out the credit of $1,040 upon the accountant’s note in favor of testator, and in charging him with the amount thereof.

      Second. In dismissing the accountant’s exceptions to the disallowance of said credit.

      Third. In surcharging the accountant with commissions on the sum of $877 33, the principal of a ground-rent on premises sold by the accountant; the premises having been sold subject to said ground-rent, and the accountant charging himself with the full amount of the purchase money without deduction for said ground-rent, the commissions claimed being only on the actual amount of purchase money paid to the accountant.

      Fourth. In dismissing the accountant’s exceptions to the refusal of the auditing judge to allow said commissions.

      Francis F. Brewster and F. Carroll Brewster for appellant.
    The note for $1,040 was a renewal of a note for $1,020, with interest added, and was discharged under the provisions of the will. The striking out of the $1,020 shows that a renewal was made, and does not evidence the intention of the testator to remove it from his books.
    The accountant is entitled to a commission upon the full amount of the purchase money, including the principal of the ground-rent.

      William F. Johnson for appellees.
    The erasure of the entry having been made by testator, shows his intention that it should not come within the terms of the will.
    The idea of a gift or advancement is repelled where an obligation for the payment of the amount is taken: Roland v. Schrack, 5 Casey, 125; Harris’ Appeal, 2 Grant, 304.
   April 30, 1883.

— The opinion of the Court was delivered by

Sterrett, J.:

In his account as acting executor of his father’s will, appellant claimed credit for $1,040, the amount of his own note included in the inventory and appraisement. His contention was that the indebtedness to his father, represented by the note, was discharged by the following clause in the will, viz: “All charges against any of my children for moneys received by them or paid for their account, standing on my books at the time of my decease, shall be void.”

The learned judge before whom the account was audited found as a fact that the note in question had never been entered in testator’s books; that another note, of earlier date, for $1,020 had been so entered, but the entry thereof had been afterwards erased. It was claimed that the first-mentioned note was a second renewal of the latter,. but that fact, if material, was not clearly shown.

From an inspection of testator’s books, it clearly appeared that the entry of the $1,020 note had been erased ; and all the circumstances connected therewith, pointed to the conclusion that the erasure had been made by the testator himself.

The note in question having been included in the inventory and appraisement of testator’s personal estate, appellant, as maker thereof, was prima facie chargeable with the amount.

There was nothing whatever upon the face of testator’s books to bring the note within the discharging clause of the will above quoted, nor was there any evidence, aliunde, that tended in the slightest degree to show that accountant had been released or exonerated from the payment of this note. There was no error, therefore, in surcharging him with the amount complained of; and hence the first and second assignments are not sustained.

The third and fourth assignments, relating to surcharge of commissions on $877 33, are without merit. The property sold was subject to an irredeemable ground-rent, the capitalized amount of which was the sum above named. For the reason given by the auditing judge, it is very apparent that accountant could have no just claim to commissions on that sum.

Decree affirmed and appeal dismissed at costs of appellant.