text:
    Fox’s Appeal.
    A testator died seised of certain real estate, providing by bis will, inter alia, as follows : “I do give and bequeath to my beloved wife, E., all my real and personal estate, she at no time to give or bequeath any portion of said estate out of my family, as at her 'decease I wish my estate which remains to go to my nephews and nieces which may be living at that time.” Testator then bequeathed as a legacy to his wife’s niece the interest of $1,000, which sum was to be invested on mortgage, and to be given to said niece on said wife’s death. He also bequeathed Ms old family clock at his wife’s decease to his eldest nephew or niece then living. Held, that the effect of the will was to vest in testator’s wife a life estate in the realty, with remainder over to testator’s nephews and nieces in fee.

      January 18tli 1882.
    Before Shabswood, O. J., Mekcur, Gordon, Paxson, Trunkey, Sterretx and Green, JJ.
    Appeal from the Court of Common Pleas No. 3, of Phüadel/phia county: In Equity: Of January Term 1881, No. 186.
    Appeal of II. J. Fox, executor and trustee under the will of Elizabeth Sparks, deceased, from a decree of said court, restraining Mm from collecting the rents of a certain house and lot, and requiring Mm to deliver up to the complainants the muniments of title thereto in Ms possession.
    Bill in equity, filed by Joseph Shallcross, and others, the nephews and nieces of Samuel A. Sparks, deceased, against Henry J. Fox, executor and trustee under the will of Elizabeth Sparks, widow of said Samuel A. Sparks, and Edward Wain, trustee, setting forth as follows :—
    Samuel A. Sparks died June 2nd 1861, seised of a certain-house and lot on the east side of Second street in the city of Philadelphia, leaving the following will, dated September 26th 1860:

      “ This, my only will and testament, I do give and bequeath to my beloved wife Elizabeth, all my real and personal estate, she at no time to give or bequeath any portion of said estate out of my family, as at her decease I wish my estate which remains to go to my nephews and nieces which may be living at that time. I do give as a legacy to my wife’s niece, Elizabeth S. Hoskins, the interest of §1,000, the said sum to be placed on first bond and mortgage well secured, the money to be given after my wife’s decease. The old family clock I give at my wife’s decease to my eldest nephew or niece living. I wish the clock to be kept in the family.
    “ Samuel A. Sparks.

      “ September 26th 1860.”
    Elizabeth Sparks, testator’s wife, survived him, and after enjoying the said premises for a number of years conveyed the same, by indenture dated December 3d 1877, to Edward Wain, in trust, to collect the rents, pay taxes, &c., and pay over the net income thereof to said Elizabeth, during’ her life, and at her death in trust for her appointees by will, and in default of appointment for her heirs.
    Said Elizabeth Sparks died in April 1878, leaving a will, whereof she appointed said Henry J. Fox executor, with directions to sell and convey all her residuary estate, which included the premises in question. At her decease the premises were in possession of certain tenants under her, or her said trustee Edward Wain.

      The complainants averred that both the said Edward Wain and the said Henry J. Eox claim to hold the legal title to said premises, and refuse to surrender the title deeds. “That these conflicting claims cloud the title, and render it impossible for the complainants, who are advised that the fee simple of said premises is in them, as remainder-men under the will of said Samuel A. Sparks, to sell or lease the same, or to derive any beneficial ownership therefrom.”
    The complainants prayed a decree that they are entitled to the fee simple in said premises, and an injunction requiring the defendants to deliver up muniments of title in their possession, and restraining them from interfering with the complainants in the exercise of their rights as owners.
    The separate answers of Edward Wain and Henry J. Eox admitted the material facts averred in the bill, but asserted that under the will of Samuel A. Sparks, his widow took a fee simple in said premises.
    Mr. Wain in his answer set forth as follows: — “ I do submit that the legal title to the premises, under the said deed of trust of December 3d 1877, is in me, asserting that by virtue of the will of the said Samuel A. Sparks a fee simple'therein passed to the said Elizabeth Sparks. I respectfully submit that such is the legal effect and operation of said will. It was so held by Thompson, C. J., at nisi prius, in a suit for specific performance of a contract for the sale of said premises, in the Supreme Court of Pennsylvania, of January Term 1866, No. 4, wherein the said Elizabeth Sparks was plaintiff, and Robert 5. Paschall defendant, wherein the following decree was entered :
    “ ‘ October 4th 1865. This case came on before the Honorable James Thompson, and was argued by counsel on bill and answer. Whereupon it was considered, ordered, and decreed that the complainant, Elizabeth Sparks, does take a fee simple estate in the premises described in said bill and exhibits under the will of her deceased husband, and that the attempted restraint of alienation on said fee simple by the subsequent words in said will are void, and of no effect, and that said defendant is ordered and decreed to fulfill his contract of purchase set forth in said bill, and that he pay the costs in this case.5 55
    Owing to some reason, at present unknown, this decree was never enforced against the purchaser, but Mr. Wain averred that he was bound by the judicial construction thereby put upon the said will.
    The said respondents respectively claimed title in themselves: Mr. Wain under the said deed of trust executed by Mrs. Sparks, and Mr. Eox under her will.
    The case was heard upon bill and answers, and the court, without filing an opinion, entered a decree in favor of the complainants in accordance with the prayers of the bill.
    From this decree the defendant Henry J. Fox, executor and trustee, took this appeal, assigning' the decree for error.

      William Hopple, Ji\, for the appellant, and H. M.. Cadwalader, on behalf of Edward Wain, trustee. —
    The decision of the late Chief Justice Thompson upon the question now before the court, though made at nisi prius, is entitled to great weight. His construction that Mrs. Sparks took.a fee simple under this will is supported by the following» cases : Hambright’s Appeal, 2 Grant’s Cases 321; Jauretclie v. Proctor, 12 Wright 466 ; Church '0. Disbrow, 2 P. F. Smith 219 ; Pennock’s Estate, 8 Harris 268; Grove’s Estate, 8 P. F. Smith 429; Ttewalt v. Ulrich, 11 Harris 388 ; Biddle’s Estate, 4 Casey 59. The gift of all the testator’s estate, real and personal, created a foe simple before the Act of April 8th 1833, and, of course, since that Act there can be no doubt. And the legal incidents of a fee cannot be restrained by subsequent precatory words : Doughty v. Browne, 4 Yeates 179 ; Doebler’s Appeal, 14 P. F. Smith 9; Hepple’s Appeal, 3 Id. 211; Shirey v. Postlethwaite, 22 Id. 39 ; Qufilman v. Custer, 7 Id. 125; Geyer v. Wentzel, 18 Id. 85 ; Cox v. Bogers, 27 Id. 160. If it was intended that the widow was to enjoy a life estate only, and dispose of the remainder by will, that of itself imports a fee : Girard Co. <o. Chambers, 10 Wright 490 ; Norris <o. Hensley, 27 Cal. 439 ; Gleason v. Fayerweather 4 Gray 34-8; 1 Bedfied on Wills, 448. The testator’s widow was the prime object of the testator’s bounty, and she is not required to give security or account to the collateral heirs. A fee having been given, precatory words as to that “which remains” will not create a trust as to such surplus: Pennock’s Estate, 8 Harris 268.

      John G. Johnson, for the appellees.
    [Shakswood, C. J. Is not this an ejectment bill? A bill to remove a cloud on title can only be brought by one in possession.]
    A pure question of law is raised by the bill and answer : all the parties in interest are before the court, and wo ask the court to hear the case now as upon a case stated. We do not pray a decree as upon a bill to remove a cloud. The question will have to be decided by this court sooner or later.
    [Sharswood, O. j. We do not wish to make any precedent which may seem to encourage what appears to be a growing tendency, especially in some parts of this state, to settle by bill in equity questions which properly should be tried in an ejectment. But we will consider the case.]
    The only cases bearing upon the present question in Pennsylvania, are Hambright’s Appeal, Jauretclie v. Proctor, Church v. Disbrow, and Pennock’s Estate, in each of which the words were precatory merely. There is nothing in any of them which either construes words like those in the present will, or compels us to put upon them any meaning other than that which is to be gathered from a common sense reading of them.
    If the will read: “ I do give and bequeath to my beloved wife Elizabeth all my real and personal estate, and at her decease I wish my estate which remains to go to my nephews and nieces which may be living at that time,” there could be no doubt that it gave an estate for life to the widow, with remainder over to nephews and nieces. This construction is not rendered doubtful by the addition of the words, “ she at no time to give or bequeath any portion of said estate out of my family.” The subsequent clauses do but add force to this construction.
   Chief Justice Sharswood

delivered the opinion of the court, January 30th 1882.

Every will is to be construed from its four corners to arrive at the true intention of the testator. Decisions upon other wills may assist, but cannot contad the construction. The order in which devises are made in a will is rarely of much importance. The legacy to the testator’s wife’s niece of the interest of $1,000, “ the said sum to be placed on first bond , and mortgage well secured, the money to be given after my wife’s decease,” as well as the specific bequest of “ the old family clock to my eldest nephew or niece living ’’ — though subsequent in order to the devise of all his real and personal estate to his wife, were clearly gifts preceding it. The will ought to be read as if they were actually written before it. Then the gift to the wife is only that which remains, ¿md that which remains he wishes to go to his nephews and nieces which may be living at the decease of his wife. The Act of April 8th 1833, Pamph. L. 219, provides that “all devises of real estate shall pass the whole estate of the testator in the premises devised, although there are no words of inheritance or perpetuity, unless it appear by a devise over or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate.” It is true that the word “estate” in this will, would have carried the fee independent of this Act, but there is not the same clear indication of intention as where the fee is expressly given. Then it might be doubted whether the gift over of what remains was not merely of what was unconsumed or undisposed of. He has added a prohibition of any gift or bequest out of his family — which, if a fee had been expressly given, might have been considered a provision in restraint of the powqr of alienation, and therefore void. But as it stands, it confirms the construction that the devise was but for life. She was not to give or bequeath any portion of the estate out of the family. His family consisted of his nephews and nieces, to whom the estate was limited over. The words are not precatory merely — expressing the wish that his wife should give or bequeath the estate, or what remains, to his nephews and nieces — but the words, “ I wish,” are as mandatory as the words “I will.” The cases relied on by the learned counsel for the appellant were all decided upon the peculiar wording of the will, in each particular instance. Thus, in Hambright’s Appeal, 2 Grant 320, a sum of money was left to the wife “ for her full use during her lifetime,’ ’ and “ if any left” he desired it to go over. In Jauretche v. Proctor, 12 Wright 466, the husband named his wife as his “ sole and only heir of all his property, real and personal,” that she was not to divest herself of what he might leave, “ until after her death,” and at her death Avhat he may have left her, that is to say, the residue, to be divided, &c. Here she had ,the power of testamentary disposition, and the residue could only mean, as the gift was of the whole, what Avas unconsumed. In Church v. Disbrow, 2 P. F. Smith 219, an express power of disposition was given during life, and a mere wish expressed that she would leave the property remaining at her death for a charitable use. In like manner, in Pennock’s Estate, 8 Harris 268, the personal estate was all given absolutely with the expression of a confidence that the surplus should be divided, at the death of the life-tenant, among a class described. In Cox v. Rogers, 27 P. F. Smith 160, express power was given to the Avife to use the whole of the personal property, to provide for the family, and, at her death, “ what part of my personal property is then to be had,” to be divided, &c. It is plain that no one of these cases resembles the will now before us. No doubt they were all rightly decided conformably to the intention of the testator in each particular will. In this will we find no such intention expressed or implied.

Decree affirmed, and appeal dismissed at the cost of the appellant.


source: Caselaw Access Project

author: Mr. Justice AIercuk

license: Public Domain

text:
    Goersen versus Commonwealth.
    1. An.indictment for murder which charges that the defendant “did feloniously, wickedly and of malice aforethought kill and murder ” a certain person, without specifying the mode or manner of the killing, is sufficient under the provisions of the Act of March 31st 1860, §§ 11, 20, Pamph. L. 433.
    2. The above Act is not in conflict with section 9 of the Declaration of Rights, which declares that in all criminal prosecutions the accused has a right to demand the nature and cause of the accusation agaiust him.
    3. The “nature and cause” of a criminal prosecution is sufficiently averred by charging the crime alleged to have been committed. This must always be done. The “mode or manner” refers to the instrument with which the crime was committed, or the specific agency used to accomplish the result. It is not necessary to aver either of these in the indictment.
    4. Semble, that whenever a prisoner before trial needs more specific information than is contained in the indictment to enable him to make a just defence, he may obtain it on proper application to the court.
    5. As a general rule, where a person is on trial for one crime, evidence of his participation in another independent and distinct crime is not admissible against him. Such evidence is not admissible to impeach his general character or merely to prove a disposition to commit crime. It is, however, in such case admissible to establish identity, to show that the act charged was intentional and willful, not accidental, to prove motive, to show guilty knowledge and purpose, rebut any inference of mistake, in caso of death by poison to prove that the defendant knew the substance administered to be poison, to show him to be one of an organization banded together to commit crimes of the kind charged, and to connect the other offence with the one charged, as part of the same transaction.
    6/A prisoner being on trial for the alleged murder of his wife, by poisoning her with arsenic, the prosecution offered to prove that the prisoner’s wife’s mother had died by poison administered to her by him, a few days before tire death of his wife, that the arsenic thus administered was of the same kind as that administered to the wife, that the two acts were part of a preconcerted scheme on the prisoner’s part to obtain the money of his wife and his wife’s mother, and also to rebut the theory that the death of the prisoner’s wife was the result of accident, or suicide, or of the negligent or ignorant use or administering of arsenic as a medicine. Held, that the evidence was clearly admissible.
    7. On a trial for murder the misstatement by the judge in his charge of any of the evidence bearing upon the prisoner’s motive to commit the crime, constitutes cause for reversal on error.
    8. 'Where in such case the judge prominently presents in his charge the theory and strong features of the prosecution, and ignores the theory of the defence and the facts on which it is based, this constitutes cause for reversal on error.

      January 19th and 20th 1882.
    Before Sharswood, C. J., Mbrcur, Gordon, Paxson, Trunkey, Steerett, and Green, JJ.
    Error to the Court of Oyer and Terminer of jPhiladelphia cov/nty: Of January Term 1881, No. 123.
    Indictment against Albert G. F. Goersen for the murder of his wife Elizabeth E. Goersen.
    The indictment charged “ that Albert G. F. Goerson, late of the said county, yeoman, on April 4th 1880, at the county aforesaid, and within the jurisdiction of this court, with force and arms, &c., in and upon the body of one Elizabeth E. Goer-sen, in the peace of God and the said commonwealth then and there being, feloniously, willfully, and of his malice aforethought did make an assault, and her, the said Elizabeth E. Goersen, then there and feloniously, willfully, and of his malice aforethought, did kill and murder, contrary to the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”
    The defendant moved to quash the indictment, inter alia, because it furnished to him no information of the charge he was called upon to meet. The court, Thayer P. J., overruled the motion, whereupon defendant pleaded not guilty.
    On the trial, before Biddle, J., the facts of the case appeared to be as follows. The defendant Albert G. F. Goersen was a man of about twenty-seven years of age. He was a homeopathic physician, and also a music teacher. On April 30th 1879, he married Elizabeth E. Souder, who resided with her mother, a widow, at No. 255 East Cumberland street, Philadelphia. After the marriage Goersen went to live with his wife and mother-in-law. He was of dissipated and intemperate habits, and was often in an unfit condition to handle and administer the drugs which he kept by him.
    On March 25th 1880, Mrs. Souder, after an illness of about two months, died. The pliysiciau attending her, Dr. Francis Haynes, gave a certificate that the cause of her death was Bright’s disease, and she was buried accordingly. Mrs. Souder, by her will, bequeathed to her daughter, defendant’s wife, “all her personal things, and everything in the house.” She had, under the terms of her husband’s will, a life interest only in the house wherein she lived, the remainder being vested in her daughter in fee.
    Mrs. Goersen became extremely despondent after her mother’s death, and expressed the opinion that she would not live long. It was shown by one witness that upon one occasion she had in her hands a small vial labeled with a skull and crossbones, which Dr. Goersen snatched from her, telling the witness at the same time that it contained poison.

      On March 30th Mrs. Goersen was taken sick, and was attended by her husband, the defendant. On April 1st he sent for a conveyancer, who drew up a will which Mrs. Goersen signed, whereby she devised and bequeathed all her property, which was of considerable value, to the defendant, constituting him her executor. On the evening of April 2d defendant called at the house of Dr. John R. Haynes, an allopathic physician, and requested him to call upon his wife. The latter did so, and found her in an extremely ill and weak condition. He prescribed certain remedies, including sulphate of morphine. During the time that he was in the house, defendant appeared to him to be in a semi-intoxicated condition, and asked whether, in case of Mrs. Goersen’s death, he would furnish a certificate. To this question Dr. Haynes replied in the affirmative. After Dr. Haynes had gone, defendant went for the medicine prescribed,'and having procured it, administered it to his wife once.
    On the evening of April 3d Dr. Prances L. Haynes, brother of the physician above spoken of, called to see Mrs. Goersen. He found her almost in a dying condition, and accordingly administered to her a hypodermic injection of one half grain of sulph-morphia. He then wrote a prescription for sulph-morph. and bi-carbonate of soda, accompanied with directions for use, and then left, after desiring to see Dr. Goersen, the'defendant, when he came in. When defendant came in he looked at the prescription left by Dr. Haynes, remarked that his wife had had morphia enough, and then went over. to see Dr. Haynes. Haynes told him his wife was very sick, but advised him not to administer any more morphia if she seemed drowsy. Goersen then returned to his wife’s house, took a white powder from a bottle in his office, mixed it with water and gave it to his wife. He gave her, however, no morphia whatever. On the morning of the 4th Mrs. Goerson died.
    Defendant at once became extremely anxious to obtain a certificate of his wife’s death, and sent repeatedly to Dr. Haynes-for one, which he, however, declined to give. Defendant was violently opposed to the holding of a coroner’s inquest on his wife’s body, but finally yielded. The body was opened on April 5th and was found to contain upwards of four grains of arsenic, whereupon defendant was arrested.
    The theory of the prosecution was, that the prisoner had administered the arsenic to his wife in the shape of the white powder, his design being to murder her in order to obtain possession of her property. The theory of the defence was that Mrs. Goersen had committed suicide.
    In the course of the trial the Commonwealth proposed to show that Mrs. Souder came to her death a few days before the death of Mrs. Goersen, by arsenic, administered by the prisoner while prescribing lor her during an attack of illness, and while she was residing in the same house with the prisoner and his wife ; that the arsenic administered to Mrs. Souder was of the same description as that found in the stomach of the prisoner’s wife; that the poison was administered to Mrs. Souder and Mrs. Goersen in pursuance of a design on the part of the prisoner to obtain the property, real and personal, of Mrs. Souder and Mrs. Goersen, a portion of which was derived under the will of John E. Souder ; to show the purpose and intent of the prisoner, and the system by which that purpose was to be accomplished, and the connection of the death of Mrs. Souder and Mrs. Goersen with the said purpose and intent ; and also, to rebut the theory that the death of Mrs. Goersen was. the result of accident or suicide, or of the negligent or ignorant use or administration of arsenic, by either the deceased or the prisoner.
    The defendant objected to this offer, on the ground that the death of Mrs. Souder constituted a separate and distinct offence from that on trial, and also because the Commonwealth had not offered evidence sufficient to show the existence of property in Mrs. Souder, that would have passed by her death to her daughter, the prisoner’s wife. Objection overruled. Evidence admitted. Exceptions.
    Under this offer the Commonwealth showed that Mrs. Souder’s death had in many respects closely resembled that of her daughter, that she had been attended by the prisoner, and that upon the disinterring and opening of her body upwards of a grain of arsenic was found therein. It appeared that her disease was one in which arsenic was an appropriate remedy, but only in very minute quantities.
    The court, after defining and distinguishing the different degrees of murder and manslaughter, charged as follows:—

      “ Juries in some cases find it difficult to determine the precise offence which has been committed; the Commonwealth and the prisoner often contending that the evidence establishes different degrees of guilt. This embarrassment you will be relieved from here, because the defence is, not that tbe offence is not murder of the first degree, if you believe the prisoner guilty of it, but that he is innocent of that, and equally innocent of both murder and manslaughter.
    “ So also as to the question of poison. It is established by the testimony of both Dr. Lee and Dr. Leffman that Mrs. Goersen, the prisoner’s wife, died from the effects of poison. Dr. Leffman found over four grains of arsenic in the stomach alone, besides what be found in other parts of the body. That slie died from poison the learned counsel for the prisoner does not pretend to deny.
    “So that it being uncontroverted that she died from the effect of poison, the real question, for you to determine in this case is: who administered it to her ?
    “ In cases of this character it is rarely possible to give direct evidence of the commission of the offence, and if that was required in all cases very many guilty people would escape, for the most dangerous crimes are generally committed in secret. A man instigated by a violent passion betrays himself, but the cool, deliberate offender against the law makes every preparation before and after his crime to conceal his offence. Wliat is called circumstantial evidence often supplies the want of direct evidence, and, where all the circumstances point to but one conclusion, is quite as satisfactory. If your pocket is picked in the street and you turn round and seize a man with your watch in his hand, you have no doubt that he picked your pocket, though you did not see him do it. If your money should be drawn out of bank by a forged check, and you found that it had been taken from your check-book, of which your confidential clerk had sole charge, and that he had drawn the money and fled the country, you would think it a monstrous injustice if, after you caught him and brought him here for trial, a jury should refuse to convict him, because you could not bring any one to swear that they saw him forge your name.
    “ In the present case, it is contended, on behalf of the Commonwealth, that it is established beyond a reasonable doubt that the prisoner at the bar perpetrated the offence. They claim to have shown that he alone was pecuniarily interested in her death; that by her death he has secured the whole of her property, by a will executed two days before her decease; that, as her husband and physician, he had the opportunity to administer to her, and did administer any drug he chose without suspicion; that he did treat her during her short illness, which exhibited every day all the symptoms of poisoning by arsenic; that before her decease and immediately after it, he exhibited great anxiety to obtain a burial certificate from another physician, and, failing in this, he endeavored to retain one which he knew had been furnished by a young girl without the knowledge of her employer.
    “ The only physicians who saw her, besides her husband, both pronounced her very ill, and recommended remedies, but neither of them were asked to call again or to take charge of the ease. Neither were the remedies recommended by them administered ■to her, showing, as the Commonwealth alleges, they wore called in, as in the case of her mother, for the mere purpose of getting a certificate to bury her, and with no wish to effect a cure.
    “ A burial certificate from either of these physicians would probably have prevented a post-mortem examination, and would have lulled the suspicions which it seems were- excited among the neighbors. Therefore its importance to the prisoner.

      ££ On the 30th of March Mrs. Goersen was first taken sick, and on the 4th of April she was dead. On the 25th of March her mother, who occupied the same house and was attended by Dr. Goersen, it was discovered, exhibited the same symptoms before her death as her daughter, and had died, and on the 27th had been buried. She, by her will, dated the 8th of March, had left all her interest in her deceased husband’s estate to her daughter and the prisoner. On the disinterment of her remains arsenic was found in her body, and both Dr. Leffman and Dr. Lee pronounce without hesitation that the cause of her death was poisoning by arsenic.
    ' “ We thus have in one family two deaths by arsenic between March 25th, the death of the mother, and April 4th, the death of the daughter. We have the same physician treating them, and pecuniarily interested in both their deaths and in making of their wills.
    ££ The amount that the mother-in-law had to leave was small, it is true, but there would still be a strong motive to get her out of the way, oven if she had not a dollar. Her daughter was fondly attached to her, and, if the mother had been living when the daughter made her will, would she be likely to have left all her'property to her husband? Would she have allowed her mother, in her old age, to have come to want and to be deprived of herbóme? Would this not naturally suggest itself to any one who contemplated getting rid of the daughter to get all her property ? The death of the daughter would be of small avail to her husband if she left what she could to the mother.
    “ The answer of the prisoner depends not so much on a denial of the facts found by the Commonwealth, as oil a denial of the inference which it is sought to be drawn from them. The learned counsel for the prisoner denies that they establish the guilt of his client, but that with the additional light which he claims to have thrown upon them they show that Mrs. Goersen willfully killed herself by taking arsenic. It will be your duty then to consider the facts, and endeavor to see if that conclusion can be fairly deduced from them.

      “ There certainly does not appear to have been any suspicion that she committed suicide, at the time of her death, by any one of her relatives or friends. Her husband did not suggest it, but asserted to the undertaker that she died from inflammation of the bowels. She, so far from appearing to be desirous to shorten her life, seemed, to the very last, to be using every effort to prolong it. She was constantly taking everything which her husband prescribed for her cure, and was anxious to know what Dr. Thomas thought of her condition. When Mrs. Willard, as late as Thursday, offered to come and sit with her on the next Sunday while her niece went to church, she said ‘she thought by that time she would be well enough to come round to see us.’ It was on that very Sunday she died.
    “ Her suicide is attributed to her grief at the death of her mother, but it is difficult to imagine that a woman thirty-seven years old, who, we arc told, was fondly attached to her husband, should voluntarily kill herself because her mother 'had died at the advanced age of sixty-eight. The expressions attributed to her would indicate the natural grief and depression which such an event would cause,’but were they of such a nature as would lead you to suppose that she was in a condition of mind to- induce her to destroy herself? She expressed a willingness to die, if she could take her husband with her, that being the tie which induced her to desire to live. Would she be likely, therefore, to separate herself from him by a .criminal act of her own ?
    “Her death, too, appears to have been a gradual one. Her illness beginning on Tuesday and suddenly terminating on Sunday, and during all that time exhibiting the symptoms of poisoning by arsenic.
    “ The theory of the defense does not of course account for the death of the mother. She died by precisely the' same kind of poison, according to Dr. Leffman, and with the same symptoms and in the same house, end attended by the prisoner, nine days before. She, we are told, wras afflicted with a complaint in which arsenic is a proper remedy, and the arsenic in her system is accounted for in that way. The amount, however, would seem to be far in excess of any proper proscription. Dr. Korndeffer, called for the prisoner, tells us that his prescription for the complaint of this old lady would be 1-1000 part of a grain every few hours, and Dr Leffman has exhibited from her stomach a little under two grains — almost two thousand doses. But if given in such minute doses it would never accumulate, as I understand the testimony, but would be taken up, and in six days no trace of it could be found in the stomach, and in fifteen days it could not be found in the system. So that the theory of minute doses W'ould seem not to account for the result found by Dr. Leffman.
    “ It is also suggested that the daughter might have given her mother, by accident, too much of the homcepathic medicine which her mother was taking. But Dr. Leffman tells us the arsenic he found in Mrs. Souder’s stomach was not the kind of arsenic prepared by the homoeopathic formula.
    “ I have gone over briefly the main facts in the case, which have been elaborately presented in all their details by the counsel who have addressed you. The question is entirely one for your consideration and decision. You should be satisfied, beyond a reaonable doubt, of the guilt of the prisoner. There is scarcely a ease whore a doubt cannot be suggested in human affairs, but the doubt that should influence you should be a well founded one, and one which would deter you from coming to a conclusion in an important matter of your own.”
    Verdict, guilty of murder in the first degree and sentence of death pronounced accordingly. Defendant thereupon took this writ, filing, inter alia, the following assignments of error.
    1. The court erred in overruling the defendant’s motion to quash the indictment.
    2. The court erred in permiting the Commonwealth to introduce evidence of a distinct and separate offence from that for which the defendant was under indictment, and on trial.
    4. The learned judge erred in his charge to the jury.

      Bdmund Iicmdall and William II liuddiman, for tbe plaintiff in error. —
    The purpose of an indictment is to inform a defendant of the offence charged against him, that, if innocent, he may prepare to defend himself upon the trial.
    The indictment in this case gave the prisoner no intelligence of the facts charged as a crime against him, and afforded him no opportunity for preparation to meet the allegations of the Commonwealth subsequently made on the trial.
    The indictment must contain a specific description of the offence. Wharton’s Grim. Prac. & PI. 154-166. This indictment is apparently drawn up under the provisions of the act of March 81st 1860, § 20: . . . . “It shall be sufficient, in every indictment for murder, to charge that the defendant did feloniously, willfully and of his malice aforethought, kill and murder the deceased.” This section must, however, be read in connection with the rest of the act, including section 11: “ Every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the act prohibiting the crime.” Now this indictment charges the offence set out in section 74, same act: — “All murder which shall be perpetrated by means of poison .... shall be deemed murder in tbe first degree.”
    This indictment does not charge that the defendant did kill and murder by poison, and is not therefore drawn in conformity with the act prohibiting the crime.
    The indictment is in direct violation of section 9 of the Declaration of liiglits, giving the accused the right “ to demand the nature and cause of the accusation against him.”
    The evidence as to Mrs. Sender’s death w'as clearly improperly admitted: Negina v. Oddy, 5 Cox C. C. 210. There was lacking any evidence of motive on the prisoner’s part to murder Mrs. Souder in connection with murdering his wife. This w'as essential to justify the admission of the evidence: Shabbier
      v. Commonwealth, 22 P. F. Smith 60; State v. Lapage, 57 N. FL. 245 ; "Wharton’s Criin. Ev. 8 ed. 50.
    It is true that no specific exceptions were taken to the charge, but the court will overlook this.
    “ It is the duty of a judge, trying a man for his life, to charge fully upon the law, without regard to points presented by counsel. The rule that a judge is not to be convicted of error for what he omits to say, ought not to be applied in a capital case. The prisoner has a right to have the jury properly instructed upon every question of law legitimately raised by the evidence, and this right he cannot waive, nor can his counsel do so for him Meyers v. Commonwealth, 2 Norris 131. The charge of the judge palpably violated this rule. It was directly against the prisoner, giving undue prominence to the theory of the prosecution and wholly disregarding that of the defence and the facts on which it was based.

      George 8. Graham, district attorney, and Henry 8. Hagert, for the Commonwealth. —
    The indictment is in the form commonly used in this county since the Act of March 31st 1860. Prior to that Act it was not necessary to specify the degree in the indictment: Commonwealth v. Cable, 7 S. & E. 424; White v. Commonwealth, 6 Finn. 183 ; or to allege that the murder was committed in the perpetration or attempt to perpetrate any one of the offences named in the Act of 1794. Commonwealth v. Flanagan, 7 W. & S. 418; Ehodes v. Commonwealth, 12 Wr. 396. And since the Criminal Procedure Act of • 1860, the means used need not be set out: Lane v. Commonwealth, 9 P. F. S. 374.
    It is alleged that the indictment is bad because in violation of the 9th section of the Declaration of Eights, which gives the accused the right “ to demand the nature and cause of the accusation against him.” But in Catheart v. Commonwealth, 1 Wr. 115, the Act of 1860 was expressly held not to be in conflict with the Declaration of Eights, and in Commonwealth v. Twitchell, Thompson, O. J., in refusing an allocatur, held that the provisions of the Act were not in conflict with a similar provision of the Constitution of the United States. To the same effect is the later case of Campbell v. Commonwealth, 3 Norris 199, decided on the authority of Catheart v. Commonwealth.
    It is not to be doubted that evidence of collateral independent crimes cannot be received when offered simply to prove the prisoner’s connection with the crime charged; or in other words, a man cannot be convicted of one offence by proving him to have been guilty at some other time of another and independent offence; but neither is it to be doubted that evidence may be given of extraneous crimes where they form part of the res gestae, or tend to exhibit a chain of circumstantial evidence of guilt in respect to the act charged, or where it is alleged that the crime in question was one of a system of mutually dependent crimes, or where such evidence tends to establish the identity of the person by whom, or the instrument with which, the crime was committed, or to prove guilty knowledge, intent or motive ; and in cases of alleged murder by poison, other cases of death by the administration of poison at the hands of the party charged may be given in evidence, to rebut the defence of suicide or accident ; or in chief, to exclude the possibility of death by either of these latter causes: King v. Wylie, 1 New Rep. 92; Queen v. Ellis, tí II. & C. 145 ; Queen v. Cobden, 3 F. & F. 833 ; Queen v. Dossett, 2 Carr. & K. 306; Queen v. Harris, 1 F. & F. 812 ; Kramer v. Commonwealth, 6 Norris 299 ; Queen v. Taylor, 5 Cox C. C. 138; Queen v. Richardson, 2 F. & F. 313 ; Queen v. Salt, 3 F. & F. 831: Queen «. Foster, 21 L. J. (AX. C.) 131; Kilrow v. Commonwealth, 8 Norris 180 ; Queen v. Reardon, 1 F. & F. 76 ; Queen v. Voice, Russ. & Ryan C. C, 531 ; Queen v. Ciewes, 1 Carr. & P. 221; Walter «. People, 6 Park. 15; Johnson v. State, 17 Ala. 618 ; Ferrigan v. Commonwealth, 8 Wright 386; Turner v. Commonwealth, 5 Norris 51; Carroll v. Commonwealth, 3 Norris 107 ; Campbell v. Commonwealth, 3 Norris 187 ; Queen v. Roden, 12 Cox C. C. 630 ; Heath v. Commonwealth, 1 Rob. (Va.) 735; Brown v. Commonwealth, 26 P. F. Smith 319; People v. Hoyle, 21 Mich. 221; Queen v.' Geering, 8 L. J. N. S. ('M. 0.) 215; Queen v. Garner, 3 F. & F. 681; S. C., 1 lb. 317 ; Queen v. Cotton, 12 Cox O. C. 100 ; Queen v. Heeson, 11 Cox C. C. 40 ; Sliaffner v. Commonwealth, 22 P. F. Smith 61.
    It is submitted that the charge was free from objection and omitted no material point.
   Mr. Justice AIercuk

delivered tbo opinion of the Court, March 20th 1882.

The first assignment of error is the refusal of the court to quash the indictment. The complaint is that it does not aver in what way or manner the murder was committed. Such objection is without force, since the Act of 31st March 1860. Section 20 thereof declares: “it shall he sufficient in every indictment for murder, to charge that the defendant did feloniously, willfully and of his malice aforethought, kill and murder the deceased.” Section 11 provides that “every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the Act prohibiting the crime.”

This indictment charges the murder in the language of the Act, to have been committed feloniously, willfully and with malice aforethought. Conceding this to bo so, it is contended the Act is in conflict with section 9 of the Declaration of Rights, which declares that in all criminal prosecutions, the accused has á right to demand the nature and cause of the accusation against him. The aigument is based on the assumption that “nature and cause” are equivalent to “mode or manner.” They are clearly distinct. The nature and cause of a criminal prosecution is sufficiently averred by charging the crime alleged to have been committed. This must be done. The mode or manner refers to the instrument with which it was committed, or the specific agency used to accomplish the result. It is not necessary to aver either of these in the indictment. The 20th section of the Act is, therefore, not in conflict with the organic law. Cathcart v. Commonwealth, 1 Wright 108; Campbell v. Same, 3 Norris 187. Whenever one before trial needs more specific' information than is contained in the indictment, to enable him to make just defence, it may be obtained on proper application to the court.

The second specification is to permitting the Commonwealth to give evidence of a separate and distinct offence, from that for which the accused was being tried. If that other offence, in fact, was separate and distinct from the one charged in the indictment, it is important to consider the purpose for which the evidence was offered. It is true, a defendant cannot be convicted of the offence charged, merely because he has committed another offence, either of a similar or a dissimilar kind. Hence, as a general rule, evidence of his participation in another independent and distinct crime, cannot be received simply for the purpose of proving his commission of the offence for which he is on trial: Whar. Crim. Ev. § 30; Coleman v. People, 55 N. Y. 90; State v. Renton, 15 N. H. 174; Commonwealth v. Campbell, 7 Allen 542; Shaffner v. Commonwealth, 22 P. F. Smith 60. It cannot be received to impeach his general character, nor merely to prove a disposition to commit crime. Yet under some circumstances, evidence of another offence by the defendant may be given. Thus it may be to establish identity; to show the act charged was intentional and willful, not accidental ; to prove motive; to show guilty knowledge and purpose, and to rebut any inference of mistake; in case of death by poison, to prove the defendant knew the substance administered, to be poison; to show him to be one of an organization banded together to commit crimes of the kind charged; and to connect the other offence with the one charged, as part of the same transaction.

The plaintiff in error was on trial for the murder of his wife by poison. The evidence of the death of Mrs. Souder, was admitted under an offer to prove that she died by poison administered to her by him, while she was residing in his house, a few days before the death of his wife, that the arsenic administered to Mrs. Souder was of the same description as that found in the stomach of his wife : that the poison was administered to Mrs. Souder and to his wife in pursuance of a design on his part to obtain their property: to show his purpose and intent, and the system by’ which that purpose was to be accomplished, and to connect the death of both women with that purposo and intent; and also to rebut the theory that the death of Mrs. Goersen was the result of accident or suicide, or of the negligent or ignorant use or administering of arsenic by either his wife or by him. These purposes clearly brought the offer within the rule permitting the evidence of the other offence to be given. There was, therefore, no error in receiving the evidence.

The third assignment is without merit. The fourth assignment is to the charge of the court. The alleged errors therein are not assigned according to rule; yet the whole charge was filed and comes up as a part of the record duly certified.

The complaint is twofold, the one to stating portions of the evidence incorrectly to the jury, the other an omission to adequately instruct them on the important questions fairly arising under the evidence. We wTill consider them separately.

1. The court said “ the only physicians who saw her, besides her husband, both pronounced her very ill, and recommended remedies; but neither of them was asked to call again, or to take charge of the case, neither were the remedies recommended by them administered to her, showing, as the Commonwealth alleges, they were called in, as in the case of her mother, for the mere purpose of getting a certificate to bury her, and with no wish to effect a cure.”

A reference to the evidence shows that Dr. John II. Ilaynes visited Mrs. Goersen on the evening of Friday, the 2d of April, and his brother, Dr. Francis L. Haynes, visited her on the evening of Saturday, the 3d, and she died on Sunday morning, the 4th of April. The former left a prescription for her. Sarah E. Souder, the attendant on Mrs. Goersen, and a witness called by the Commonwealth, testified that Dr. Goersen “ went for the medicine ordered by Dr. Haynes, came back and administered it to her, once.” On Saturday evening the other doctor, Haynes, administered a hypodermic injection of sulp. morphia into her arm, wrote a prescription, gave directions for its use, and requested her to send Dr. Goersen over as soon as he came in. The latter called on Dr. Haynes the same evening. The latter “advised him not to administer the morphine powder if she became drowsy.” Still later in the evening, the doctor sent his brother, Robert W. Haynes, who told Dr. Goersen not to give the medicine if she was sleeping. Each physician pronounced her very sick when he visited her. Thus there was evidence to submit to the jury to find whether some of the medicine prescribed on Friday evening was not in fact administered to her, and if none was on Saturday evening, whether it was not in pursuance of the directions of Dr. Haynes, and not by reason of any improper motive of Dr. Goersen, and whether she was not then beyond the curative power of medical skill.

It is further complained that the court said, Mrs. Souder, “ by her will dated the 8th of March, had left all her interest in her deceased husband’s estate to her daughter and the prisoner.” An examination of the will of Mrs. Souder shows she devised to them only her personal things and everything in the house,” and made no reference to the estate of her deceased husband. The will of her husband gave her nothing beyond a support and maintenance during her natural life, so she acquired from him nothing to devise.

2. This is not the case of an entire omission to charge on the law and the evidence, beyond answering the points submitted in behalf of the plaintiff in error, for they were all affirmed. The error consists in prominently presenting the theory and strong features of the prosecution, and ignoring those of the defence. The defendant was a physician,, and a person of intemperate habits. He kept medicines in a closet in his house. He was frequently in an improper condition to administer them. The Commonwealth proved by Sarah E. Souder, that she held the lamp for him while he mixed and administered to his wife some medicine, which is claimed to have been arsenic. If so, in view of his habits, the question arose, was it administered intentionally, or through gross negligence ?

There was evidence that on the day of her mother’s funeral, and afterwards, Mrs. Goersen was despondent, and expressed the opinion that she would not live long. It also appears that at one time she had in her hand a small vial with skull and cross-bones on it, and Dr. Goersen sprung and caught her hand, and took it from her, telling the witness, at the time, there was poison in it. The counsel for the Commonwealth manifestly saw the force of these two aspects of the case. As has already been shown, the evidence of the death of Mrs. Souder was admitted under its offer to rebut the theory of the death of Mrs. Goersen being the result of accident or suicide, or of the negligent or ignorant use or administering of arsenic by him or by his wife. Although the evidence given bore directly on these two'theories, the learned judge omitted to bring any of the details thereof to the attention of the jury, as questions worthy of their consideration. The burden of proof rests on the Commonwealth to establish the guilt of the accused beyond a reasonable doubt, and therefore a duty rested on it to rebut all other reasonable theories that might be deduced from the evidence : Turner v. Commonwealth, 5 Norris 54.

We are unable to discover any act on the part of Dr. Goersen, tending to prove undue influence on the mind of Mrs. Goersen, in the disposition of her property. On the contrary, the will which she executed appears to have been the result of a free exercise of her unbiassed judgment, and dictated by her when he was not present.

In view of the condition of Dr. Goersen soon after the death of his wife, much importance should not be given to the fact of his unwillingness, at first, to have an inquest held upon her body. It appears by the evidence of Charles A. Souder, an uncle of the deceased, that he talked to Dr. Goersen, on the subject, that the latter “ asked if I thought it best to have an inquest. I advised one, and he said he was satisfied.”

Without designating other omissions, wo think the substantial and controlling theories naturally arising from the evidence were not, as they should have been, presented to tbe consideration of the jury. The charge inadaquately presented the case, in view of the circumstantial character of the evidence, and the gravity of the crime charged. The fourth specification is sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Yerkes’s Appeal.
    1. A power of attorney ceases to be operative upon tbe death of tbe party giving it, unless it is coupled with such an interest as renders it irrevocable. The interest necessary to render such a power irrevocable must be an interest in the subject upon which it is to operate, not an interest in that which is produced by the exercise of the power.
    2. A certain decedent having died, his widow, heirs and next of kin', executed a paper empowering certain ag'ents to examine into a certain instrument purporting to be the decedent’s will, and to take such action as in their judgment might bo expedient. Said parties further undertook to contribute towards the expenses which might be incurred, in proportion to tbe amounts they should realize from the estate. Held, that the paper in question gave no interest in or right to anything, nor did it provide for compensation payable out of any particular fund, that hence, viewed as a power of attorney, it lacked every essential ingredient of irrevocability and that therefore on the widow’s death it ceased to be operative as against her estate.
    3. In pursuance of the above paper the agents above named procured an issue to test the validity of the will. This terminated by agreement iu a verdict in favor of the will. The widow subsequently elected to take against the instrument, paid one half of the costs of litigation up to that time incurred, and subsequently died. Held, that prior to her death the agreement had been, by the understanding of all parties fully executed, and that the liability of all parties for the expenses of litigation, was therefore at an end, and that hence there was no liability on the part of the widow’s estate for further expenses incurred upon the opening of the verdict and continuance of litigation after her death.
    4. In the above case the executors of the widow after her death notified all parties that she had elected to take against the will, and that her estate had uo interest iu the litigation and would not be responsible for any expenses incurred therein, and thereupon her name was withdrawn as a party to the issue. Held, that under these circumstances there was no ground for charging the widow’s estate with a share of the expenses of litigation subsequently incurred, on the ground that said expenditures were made in the interest or for the benefit of her estate.
    5. An executor or administrator who becomes a party to an issue devisavit vel non must look to those who authorized him to engage therein, and cannot charge his expenses to the estate he represents, unless the latter is benefited by the proceeding.
    6. In the above case the litigation ended in a judicial determination of the fact that the will in question was a forgery, for which certain parties were indicted and convicted. Held, however, that the mere apprehension that if the said will had been established the decedent’s estate might have been squandered by the executors named in the forged instrument, and thus the widow’s interest impaired, did not constitute under the circumstances a just cause for charging a portion of the expenses of litigation upon said widow’s estate.
    January 20th and 23d 1882.
    Before Sharswood, C. J., Merour, Gordon, Trunket, Sterrett and Green, JJ. Paxson, J.; absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of'January Term 1882, No. 62/
    Appeal of Silas Yerkes, et al., executors of the will of Mary G. Whitaker, deceased, from a decree of said court, in the matter of the distribution of the estate of her late husband, Robert Whitaker, deceased, whereby the share of Mrs. Mary G. Whitaker therein was charged with one half of certain costs and expenses incurred in proceedings contesting the validity of an alleged will of said Robert Wbitaker.
    Upon tbe adjudication of the second account filed by the executors of Robert Whitaker, deceased, the accountants claimed credit inter alia, for the sum of $52,000, paid by them for counsel fees, costs and expenses in the matter of an issue devisavit vol non, awarded to try the validity of an alleged will of Robert Whitaker. A verdict in said issue had been taken by agreement on April 1st 1879, which was afterwards set aside by the court; the fees and expenses in question were those incurred in litigation after the date of said verdict, -which litigation finally resulted in establishing the earlier will, the other being proved a forgery. The expenses incurred in said proceedings prior to said original verdict, amounted to $40,000.
    Robert Whitaker died without issue, August 23d 3878. Two wills were presented for probate. Mi'S. Mary G. Whitaker, his widow, and certain beneficiaries named in the will earliest in date, thereupon executed the following paper : — ■
    “ We, the undersigned heirs, distributees, and next of kin of Robert Whitaker, deceased, do hereby constitute and appoint Henry Cartwright, Alexander M. Fox, and William Elwood Heston, our agents to represent our interests in the matter of the estate of said Robert Whitaker, deceased, and request them to examine into the matter of any instrument purporting to be the will of Robert Whitaker, and take such action as in their judgment may be expedient, and we each agree to contribute towards the expense which they may pay or incur, our respective proportions of such sums, to be rated according to the amounts which may be respectively realized by us from the estate.”
    Mrs. Whitaker subsequently elected to take against any will of lier husband, and to take her interest in his estate under the intestate laws. This being one half of his personal estate, she paid one half the said sum of $40,000, incurred for expenses up to the date of said verdict, viz., April 1st 1879.
    Mrs. Whitaker died in July 1879. Upon the setting aside of said compromise verdict, in September 1879, her executors notified the parties to the above recited agreement that the estate of their testatrix had no interest in continuing the litigation, and that they would decline to pay any further expenses that might be incurred thereby; and Mrs. Whitaker’s name was thereafter stricken from the record of the said issue. •
    Upon the audit of the said second account of the executors of Robert Whitaker, the executors of Mary G. Whitaker claimed that, under the foregoing facts, the estate of their testatrix was entitled to her share of Robert Whitaker’s estate, without any deduction therefrom by reason of tbe credits claimed by the accountants for expenses incurred in tbe litigation after the date of the said compromise verdict; and the auditing j udge (Ashman, J.), so held, and disallowed the said claim for credits in the account.
    Exceptions to this finding were filed by the accountants, which were sustained by the court, Penrose, J., saying, in an opinion filed, inter alia: “ But it is supposed, as tlie widow of tlie testator .... liad tlie right to take against the will, that therefore she had no interest in the controversy, and the expenses - incurred in its prosecution could not be charged against her share of the estate.
    “ This overlooks the fact that her share of the estate is only of what remains after the deduction of debts and expenses of administration. Though not bound by the will so far as com, cerus her proportion of what thus remains, she takes it only through the executor. The law does not, upon her election to take against the will, vest in her, ipso facto, either the amount or the possession of what she is ultimately to receive; nor is tlie executor compelled to pay her anything until the settlement of his account and the decree of distribution. Being thus bound by the appointment of executor, it is scarcely accurate to say that a widow has no interest in a controversy which is intended to take from him the custody of the estate and give it to irresponsible or dishonest men. She clearly has an interest, when the attempt is to place it in the hands of criminals and thieves. . . .
    “ But the allegiance of an executor or administrator is not to widow and distributees alone. Paramount to theirs are the rights of creditors. Non constat when letters are granted, that the estate may not prove insolvent. Required to make oath that it shall be well and truly administered, what avails it, in law in foro conscientise, that the widow opposes the making of defence, or even that she affirmatively assents to the claim of the spoliator ? As against creditors, the expenses of the defence would unquestionably be allowed as a proper credit. A fortiori as against the widow and all others.
    “ In this view of the case it is unnecessary to consider the agreement entered into between Mrs. Whitaker and the heirs and legatees of her husband, relative to the expenses of the litigation contemplated at the. time of its execution. Treating it, however, as it is treated in the adjudication, not simply as a .power''of attorney revocable by death, but as an agreement inter partes, under seal and in consideration of mutual promises, and carried into execution by the incurring of expenses and the assumption of legal liabilities, we are unable r,o see that the compromise made by the parties with the so-called executor of the forged will can be regarded as an execution of the contract, and an accomplishment of the purpose for which the parties had entered into it.
    “ It is true that both parties, when they made the settlement with Sheetz, supposed the controversy to be ended; but in this, as the court held, they were mistaken. With no propriety can this abortive settlement be called a termination of the controversy, within the meaning of the agreement.”
    The court entered, a decree allowing the said credits, as claimed, the effect whereof was to charge the distributive share of Mary G. Whitaker’s estate with one half the amount thereof.
    The executors of Mary G. Whitaker thereupon took this appeal, assigning for error, inter alia, the said decree.

      George W. Thorn and George W. Biddle (M. Ila/m/pton Todd and George Biddle with them), for the appellants.' —
    Mrs. . Whitaker’s estate w'as properly charged with her share of the general expenses of the administration. But she had no interest in the protracted litigation over the forged will, as she had elected to take under the intestate law. The benefits thereby conferred on a widow cannot be taken away by forcing her against her consent into an expensive litigation to sustain one will and destroy another, under neither of which she took anything, on the mere anticipation of the executors that she may lose everything. The real parties in interest must bear the burden of the contest: Dietrich’s Appeal, 2 Watts 332; Koppenliaffer v. Isaacs, 7 Watts 170; Geddis’s Appeal, 9 Watts 284; Mumper’s Appeal, 3 W. & S. 441; Boyer’s Appeal, 1 Harris 569; Landis’s Estate, 1 Phila. Bep. 528; Bankin’s Appeal, 10 W. N. C. 235.
    It is claimed Mrs. Whitaker continued liable, under the agreement with the parties interested in sustaining the first will, to pay a share of all the expenses, proportionate to the share she finally realized from her husband’s estate. But the executors' of Bobert Whitaker’s estate, the appellees here, were not parties to that agreement, and cannot enforce any supposed liability under it, especially in a proceeding in distribution in the Orphans’ Court: Wickersham’s Appeal, 14 P. F. S. 67. Moreover, the so called agreement was a mere power of attorney to the agents therein named, revocable, and in law revoked by Mrs. Whitaker’s death, subject to reimbursing the agents for their outlay up to that time.

      John G. Johnson, and O. 8. Paneoast, for the appellees.—
    This is not the ordinary case of a contest between the legatees of two different wills, or a contest as to the distribution of an estate in the hands of honest executors — in such cases it is proper that the parties directly interested in the contest should pay the costs of such contest. Here the effort was on the part of executors to rescue the entire estofa from the hands of conspirators, who had constituted themselves executors in a forged will. They had cleverly provided for the nephew's and nieces in the forged will, and while it was really at the widow’s interest that the conspirators levelled their scheme, the common danger of all was the embezzlement and spoliation of the entire estate by those into whose hands, as executors, it would pass under the. forged will. Had the executors, after her death, abandoned their litigation, and yielded the estate to the conspirators, the widow, notwithstanding her election to take under the intestate law, would have had no “ share of the estate” out of which to pay costs, or anything else; whereas, the result of the executors’ defence of the estate is, that she receives, after deducting her share of the expenses in controversy, over $200,000". If the executors had abandoned the defence, she or her executors would have been the first to charge them with negligence. In Rankin’s Appeal, 10 W. N. C. 235, one of the cases relied on by the other side, it is said in the opinion of the court: “ When the interests of all parties under a testamentary instrument.are menaced, it may be the duty of the executor or trustee therein named to uphold and defend it.”
    But Mrs. Whitaker, and her representatives, are bound by the agreement of August 1878, which was not a mere revocable power of attorney, as contended, but a mutual agreement entered into by numerous parties for their joint protection, on the faith of which legal proceedings were begun, in Mrs. Whitaker’s lifetime. The death of one of the parties could not revoke it, as to such party, nor release his or her estate from liability to contribute to the costs of the proceedings down to their final consummation.
    The agreement comes within the class of cases excepted from the quality of revocability, because of its being coupled with an interest, not arising out of the paper itself, but antecedent to and giving rise to the agreement: Hartley and Minor’s Appeal, 3 P. F. S. 212; Blackstone v. Buttormore, Id. 266. In the last case it is said that a power of attorney is irrevocable where “it is to be used as a means of effectuating a purpose necessary to protect the rights of the agent or others ” — which is our case. In the following eases contracts similar to the one in hand were held irrevocable, on the principle of mutuality: Chambers v. Calhoun, 6 Har. 13 ; Edinboro Academy v. Robinson, 1 Wright 210 ; Hart’s Estate, 7 W. N. 0.162; Addison on Contracts 34, §§ 18, 361.
    No recovery in personam is here sought, nor do the executors seek to profit by it individually, but merely to protect the rights of the other distributees, in their due administration of the estate.
    When costs are incurred for the benefit of the whole estate they are payable out of the estate before distribution : Geddes’s Appeal, 9 Watts 285;- Scott’s Estate, 9 W. & S. 98; Rankin’s Appeal, supra.
   Mr. Justice Sterrett

delivered the opinion of the court, October 2d 1882.

The question in this case is, whether the expenses of litigation in the issue devisavit vel non, amounting to over $50,000, were a proper charge against the estate. It is conceded that the appellees, executors of Robert Whitaker, deceased, expended that amount in counsel fees and other expenses incident to the second trial of the feigned issue, but the contention is that it should not be so credited as to lessen the distributive share to which appellants, as executors of testator’s widow, are entitled.

The controlling facts under which the question arises are briefly these : Robert Whitaker died in August 1878, leaving a widow, but no issue surviving him. Two testamentary papers were presented for probate, in one of which the appellees were appointed executors, and in the other, purporting to he of subsequent date, Messrs. Sheetx and Negns were named as executors. In the issue directed to tost the validity of the last mentioned paper, a verdict against it was taken by consent of the parties thereto, and the other paper was immediately admitted to probate as the last will of Mr. Whitaker. Nearly six months thereafter, the verdict was set aside and a new trial ordered. After a protracted contest, the paper was again pronounced invalid on the ground that it was a forgery, planned and executed by persons who were subsequently indicted, convicted and sentenced for the crime.

A few days after Mr. Whitaker’s death, his widow and certain legatees and devisees under the first will signed a paper appointing Messrs. Cartwright, Fox and Heston as then* agents, “ to examine into the matter of any instrument purporting to he the will of Robert Whitalcer, and take such action as in their judgment may be expedientand also agreeing to pay their proportionate shares of expenses attending the same. Pursuant to the authority thus given, the agents above named filed a caveat against the probate of the forged will, and conducted the issue devisavit vel non to its termination in the compromise verdict of April 1st 1879, in favor of the genuine will. The expenses of the proceedings thus far, amounted to $40,000, one-half of which was paid by Mrs. Whitaker as her portion under the agreement.

Sometime after her husband’s decease, Mrs. Whitaker, in due form, elected to take, against any will of her husband, the one half of his personal estate, etc. to which she was entitled under the intestate laws.

After making a will, wherein she appointed appellants executors, Mrs. Whitaker died in July 1879. In the meantime, parties claiming an interest under the second will, had petitioned tbe court to set aside tbe compromise verdict, and in September 1879, the order to that effect was made. Shortly thereafter, appellants notified counsel for the parties named in the above mentioned agreement that the estate, represented by them, had no interest in continuing the litigation, and they therefore declined to pay or become responsible for any further sums of money connected therewith. No dissent to the letter, containing the notice, was expressed by the counsel to whom it was addressed, or by their clients ; and, before the second trial, the name of Mrs. "VVliitaker, as a party to the feigned issue, was stricken from the record without opposition on the part of those sustaining the contest.

Under these circumstances, can the claim of the appellees be sustained, either by virtue of the agreement of August 1878, or on the ground that the expenses were incurred in the interest and for the benefit of the estate represented by appellants ? We think not. Upon the death of Mrs. Whitaker, the paper referred to undoubtedly ceased to be operative as a power of attorney, so far as her estate was concerned, unless it was coupled with such an interest as rendered it irrevocable. It is well settled that the interest, necessary to render a power irrevocable, must be an interest in the subject upon which it is to operate, not an interest in that which is' produced by the exercise of the g>wer: Hunt v. Rousmanier’s Administrators, 8 Wheat. 174; Hartley’s Appeal, 3 P. F. Smith 212; Blackstone v. Buttermore, Ib. 266; Lightner’s Appeal, 1 Norris 301. The paper in question gave no interest in or right to anything, nor does it provide for compensation payable out of any particular fund, v iewing it as a power of attorney, it is lacking in every essential ingredient of irrevocability. But, it is claimed that it may be enforced as a contract between several parties, by which they are mutually bound to contribute to the common object, and that it became irrevocable as soon as expenses were incurred or legal obligations assumed in furtherance of that object. Conceding for the sake of argument that such would be its legitimate effect, it is a sufficient answer to say, that before the decease of Mrs. Whitaker, the agreement, according to the understanding of all parties thereto, was executed. The will had been established by a formal verdict, and letters testamentary issued to the executors named therein, and all expenses incident thereto were apportioned and paid. The liability of all parties to the contract was thus ended, and no legal reason existed to prevent Mrs. Whitaker from receiving one half of her husband’s estate. Before the litigation was resumed, and without assuming any new obligation in relation thereto, Mrs. Whitaker died, and that event was speedily followed by the notice above mentioned.

In view of what has been said, it is evident that no claim (founded on tbe agreement of 1878, or anything connected therewith) for expenses incurred after the date of the compromise verdict, can justly be sustained, directly or indirectly, against the estate of Mrs. Whitaker.

Nor do we think the claim in controversy can be sustained on the alleged ground that the expenditures of which it is composed, were made in the interest of Mrs. Whitaker, or for the benefit of her estate. She had elected to take under the intestate law, and «was therefore not interested in the result of the feigned issue. Moreover, timely notice was given by her executors that her estate was not interested in the controversy and would not be responsible for any expenses connected therewith. It is well settled that an executor or administrator who becomes a party to an issue devisavit vel non must look to those who authorized him to engage therein, and cannot charge his expenses to the estate he represents, unless the latter is benefited by the proceeding: Dietrich’s Appeal, 2 Watts 332; Koppenhaffer v. Isaacs, 7 Ib. 170; Geddis’ Appeal, 9 Ib. 284; Mumper’s Appeal, 3 W. & S. 441; Rankin’s Appeal, 10 W. N. C. 235; Royer’s Appeal, 1 Harris 569. The general principle, underlying these cases, is that an executor is not bound to defend his testator’s will, but if he undertakes to do so, it must be as the agent and in the intosest of those benefited by his action.

But, it is' claimed that if the forged will had been established, the estate, or a considerable portion thereof, would probably have been squandered by those who, in that event, would have had the custody and management of it, and lienee Mrs. Whitaker’s estate was interested in maintaining the genuine will. This position is untenable. Apprehended danger of such disaster, even if well founded, cannot bo recognized as a just basis of liability, especially in the case of a party who expressly refuses to participate in the controversy.

We are of the opinion that the learned court erred in allowing the credit claimed by tlio appellees for expenses of litigation in the issue devisavit vel non.

Decree reversed at the costs of appellees, and record remitted to the Orphans’ Court with instructions to enter a decree in conformity to the foregoing opinion.