text:
    Tiernan versus Binns et al., Executors.
    "here a woman anout to marry, m an ante-nuptial contract, “ relinquishes all right of dower, and all interest of any kind whatsoever to which she might be entitled in the estate of “ her intended husband” “ by reason of her marriage,” she waives her right to §300 of her husband’s estate under the Act of April 14th 1851.
    2. Dillinger’s Appeal, 11 Casey 357, followed.
    November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1879, No. 167.
    Case by Elizabeth Tiernan, widow of John Tiernan, against Gibson Binns and Nathan Brightwell, executors of said John Tiernan. The action was to recover $300, which she claimed as the widow of the decedent, under the provisions of the Act of April 14th 1851.
    At the trial it appeared that the plaintiff and John Tiernan were married on the 20th of October 1867. On the day before their marriage they executed an agreement as follows:
    “Articles of agreement and covenant made and entered into the 19th day of October, in the year of our Lord one thousand eight hundred and sixty-seven, by and between John Tiernan, of Fayette city, Fayette county, Pennsylvania, of the one part, and Elizabeth Evans, of the same place, of the other part, as follows, to wit: Whereas, a marriage is intended to be shortly had and solemnized between the said John Tiernan and the said Elizabeth Evans; and whereas, each of the said parties owns and possesses a certain separate and several estate, in real and personal property; and whereas it is the wish and desire of said parties that the marriage aforesaid, shortly to be had and solemnized, shall in no wise affect the relation now existing with regard to their several and separate estates, except as hereinafter provided: It is hereby agreed, by and between the parties aforesaid, that from and after the solemnization of the marriage as aforesaid, the ownership and control of all property, real, personal and mixed, shall continue and remain with the parties hereto respectively in the same state and condition as the same existed previous to tbe date of the solemnization of the said marriage. The said Elizabeth Evans hereby relinquishes all right of dower, and all interest of any kind whatsoever to which she might be entitled in the estate of the said John Tiernan by reason of the marriage aforesaid, except as hereinafter provided, and the separate estate of the said Elizabeth Evans shall, at all times during her coverture as the wife of the said John Tiernan, be subject to her own disposition and control, and at her death to descend to her legal heirs in like manner as if the aforesaid marriage had never occurred. The said John Tiernan hereby relinquishes any interest whatsoever in the separate estate of the said Elizabeth Evans to which he might be entitled by reason of the marriage aforesaid, and retains the entire control of his undivided estate, and the right to dispose of the same at his option, and at his death the same is to descend to his proper heirs according to law, in like manner as if the marriage aforesaid had never occurred. In consideration whereof the said John Tiernan, for himself, his heirs, executors and administrators, doth covenant, promise and agree, to and with the said Elizabeth Evans, her heirs and assigns, by these presents, that he, the said John Tiernan, his heirs, executors and administrators, or some of them, shall and will well and truly pay, or cause to be paid, unto the said Elizabeth Evans, her executors, administrators or assigns, the sum of fifty dollars for each and every year during the continuance of the marriage aforesaid, said sum to be paid in the aggregate at the dissolution of said marriage by the death of either of the parties or otherwise.
    “ In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year above written.
    John Tiernan. [seal.]
    Elizabeth X Evans. [seal.]
    “ Signed, sealed and delivered in the presence of
    George Whiting.”
    John Tiernan died on the 11th of July 1877, he and plaintiff having lived together as husband and wife for ten years. At the time of his death he was possessed of about $15,000 in personal and $10,000 in real property. At the time of making the antenupcial contract and of their marriage, he was worth, according to his own statement, at least $20,000.
    Mrs. Tiernan ivas worth at the date of the marriage about $2000. John Tiernan, by his will, gave Mrs. Tiernan $100 over and above what he agreed to pay her under their contract. Shortly after his death, Mrs. Tierman made a written demand for the $300, and upon the refusal of the executors to pay the same, brought this suit.
    The first and third points of plaintiff, both of which the court, Willson, P. J., refused, were as follows :
    1. That the plaintiff, as widow of John Tiernan, deceased, is entitled to recover under the evidence in this case, notwithstanding the ante-nuptial agreement set up by defendants.
    3. That the ante-nuptial contract set up by defendants is without consideration and therefore void, and cannot defeat plaintiff’s right to recover.
    The second point of plaintiff, which the court affirmed, was as follows:
    That the parties to the ante-nuptial contract set up by defendants were not like buyer and seller, dealing at arms’ length, hut stood in a confidential relation, calling for the exercise of the richest good faith, and that if the provision secured for the wife was unreasonably disproportionate to the means of the intended husband, it raises the presumption of designed concealment, and throws upon him the burden of disproof, and if the defendants in this case have failed to make such proof, in case the jury should believe that the provision for plaintiff was unreasonably disproportionate to his estate or means at the time of the entering into the contract, then the' plaintiff is entitled to recover.
    Verdict for defendants, and, after judgment, plaintiff took this writ, assigning for error the refusal of the above points.

      W. H. Playford, for plaintiff in error.
    The words of a contract of this kind should not be extended beyond their technical meaning: Ellmaker v. Ellmaker, 4 Watts 89.
    In Compher v. Compher, 1 Casey 31, the court say : “ When a widow accepts a provision made for her in the will of her husband, she cannot claim her rights under the intestate laws; but this does not apply to the $300 which she is entitled to retain by the Act of 1851.”
    The words of the Act of Assembly are, that she may retain either real or personal property belonging to the estate, to the value of $300. The executor or administrator has nothing to do with it, but set it out and have it appraised, provided that she is of her husband’s household at the time of his death.
    Should the ante-nuptial agreement in this case be extended beyond the widow’s right of dower and her interest under the intestate laws ?

      Boyle & Mestrezat, for defendants in error.
    No decided case rules this question in favor of the plaintiff; while it seems to us very clear that Dillinger’s Appeal, 11 Casey 357, decides it agáinst her, notwithstanding the difference between the facts. That was a post-nuptial contract, and provided for a separation. It stipulated that the wife “ shall not claim at any time or times hereafter any right or title which the said Ann Dillinger now hath or may have to any jointure, dower or thirds, into and out of the estate, real, personal or mixed, of which the said John Dillinger now or hereafter may be seised or possessed.” The right of the wife to any interest of any kind in her husband’s estate, was denied and refused, not because of the separation, not because of her adultery, but because by the articles she had renounced her right and surrendered her interest. (See Ruth Bieren’s Appeal, post, p. 265.— Rep.)
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

This was an action brought by Elizabeth Tiernan, the widow of John Tiernan, deceased, against his executors, to recover the sum of $300, the value of the property which they had refused to set apart to her, after demand made in writing under the Act of 14th April 1851. The refusal of the executors was based upon an ante-nuptial contract executed by the plaintiff and the defendant’s testator the day before their marriage, in which the said plaintiff, for the consideration therein mentioned, relinquished to the said John Tiernan ‘‘all right of dower and all interest of any kind whatsoever to which she might be entitled in the estate of the said John Tiernan by reason of the marriage aforesaid.”

It was held in Kline’s Estate, 14 P. F. Smith 122, that the parties to an ante-nuptial contract were not dealing at arms’ length, like buyer and seller, but stood in a confidential relation, calling for the exercise of the richest good faith, and while it might not be necessary to show affirmatively that there was a full disclosure of the property and circumstances of each, yet if the provision secured for the wife was unreasonably disproportionate to the means of the intended husband, it raised the presumption of designed concealment, and threw upon him the burden of proof. And see Kline v. Kline, 7 P. F. Smith 120.

The bona fides of this contract has been settled by the verdict of the jury in favor of the defendants. The plaintiff’s second point, which was affirmed by the court below, was in the precise language of the ruling in Kline’s Estate. The fact is therefore established in the cause that the ante-nuptial contract was executed in entire good faith and without any concealment of material' facts on the part of the husband.

This leaves but the single question, whether, notwithstanding the contract, the plaintiff is entitled to the widow’s $300 under the Act of 14th April 1851. It was contended for the plaintiff that the ante-nuptial contract is without consideration and therefore void. If this were so, the plaintiff would be entitled not only to her $300, but to her entire interest in the estate as widow. It is plain, however, that the contract is supported by a sufficient consideration. It is under seal ;• it recites the proposed marriage; that each of the said parties is the owner of separate estate, real and personal; that it is desirable that the marriage shall “ in no wise affect the relation now existing with regard to their several and separate estates except as hereinafter provided;” the wife relinquishes all interest in the husband’s property, and the husband relinquishes all interest in the wife’s estate, and covenants to pay her the sum of $50 for each year during the continuance of the marriage, said sum to be paid in the aggregate at the dissolution of the marriage. Here was ample consideration. Besides, marriage itself is a good consideration, and in the absence of actual fraud, will prevail even against creditors: Frank’s Appeal, 9 P. F. Smith 190.

Conceding the validity of the contract, is the plaintiff entitled to her $300 ? The words of the release are very broad. She relinquishes “all right of dower and all interest of any kind whatever” in the estate of John Tiernan. The Act of 1851 is a part of our statutes of distribution. It operates only upon the estates of decedents. Prior to its passage, the widow had a certain statutory interest in the estate, real and personal, of her deceased husband, whether testate or intestate. The Act of 1851 extended that interest by allowing her to retain for the use of herself and family $300 of the property, either real or personal, and -this whether the estate is solvent or insolvent. It withdraws so much of the estate from general administration even as against creditors, except liens for the purchase-money of real estate elected to be retained, and applies it for the benefit of the widow and children: Compher v. Compher, 1 Casey 31. If there are no children, the widow takes it absolutely. Such is the case here. We are not embarrassed by the question of the possible rights of minor children for whose benefit the act was in part intended. It is plain that the Act of 1851 gives the widow an interest in her husband’s estate, just as prior acts had conferred like rights, though differing in extent. It comes within the precise terms of the ante-nuptial contract.

If authority were needed for so plain a proposition, it may he found in Dillinger’s Appeal, 11 Casey 357. In that case the husband and wife, by articles of separation, agreed to live apart, the husband covenanting to give a portion of his property to a trustee for the use of the wife, and the wife and her trustee covenanting, in consideration thereof, that she would not at any time thereafter claim any jointure, dower or thirds out of his estate. The husband performed his part of the contract, and the wife, in his lifetime, contracted a second marriage. It was held that the articles of separation were binding on the wife in equity, and that on the husband’s death she was not entitled to any portion of his estate; also, that she was not entitled as widow to the $300 given by the Act of 1851. While the above facts differ from the case in hand, especially in this, that the wife contracted a second marriage, and was therefore guilty of adultery, yet it was not decided on this ground, Woodward, J., saying: “We rest our judgment altogether on the articles of separation, which we hold are conclusive against all the pretensions of the appellant.”

I see no reason why the law should regard with disfavor an ante-nuptial contract, especially where, as here, it was entered into by parties, each of whom was advanced in years, with separate children and separate estates. Persons so situated do not usually act from mere impulse, or contract without consideration. Such family arrangements, in many instances, reconcile differences and avoid unpleasant disputes. Where they are free from fraud, there is no reason why they should not be enforced.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Cooper versus Pogue.
    1. A will contained the following clause; “ To my beloved wife P. (so long as she remains my widow) I give all the income of the home farm, on which I now live, containing two hundred acres, more or less, with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom ; also, the mansion house in which I live, together with all belonging to it, and all that is in it, or about it, I give to my beloved wife P., the same to be hers and to belong to her for ever.” Held, that the widow had a life-estate in the realty, limited further by the duration of her widowhood, and that she took the personalty absolutely.
    2. The income and profits having been limited to the duration of the widowhood, her estate in the land was limited to the same period of time. She took an estate for life, because it might possibly last for life ; bu-t liable to be determined sooner on the happening of the contingency of her marriage.
    November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunicey, J.J. Sterrett and Green, JJ., absent. ,
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 256.
    Ejectment by George Pogue and others against Robert P. Cooper, for a tract of 200 acres of land in Jefferson township, Washington county.
    Robert Pogue, through whom both parties claimed title, died in 1860, leaving a will which contained, inter alia, the following clause:
    “ To my beloved wife, Sarah Pogue (so long as she remains my widow) I give all the income of the home farm, on which I now live, containing two hundred acres, more or less, with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom, also the mansion house in which I live, together with all belonging to it, and all that is in it, or about it, I give to my beloved wife, Sarah Pogue, the same to be hers, and to belong to her for ever.”
    Testator’s widow, Sarah Pogue, survived him, did not re-marry, and died in the possession of the mansion house and home farm, devised to her by the will, on the 10th of November 1876. They had no children. It was admitted on the trial, that the plaintiffs were the heirs-at-law of the husband, and that the defendant was one of theiajrs of the wife, holding possession for himself and them. Aftler giving evidence as to mesne profits, the plaintiffs rested, claiming to recover under the intestate laws. The defendant offered the will in evidence to show, that Robert Pogue died testate, and under the devise to his widow, the title to the disputed premises at her death, vested in her heirs. The plaintiffs objected, on the ground, that the will on its face did not carry a fee in the land to Sarah Pogue, and away from the heirs-at-law. The court overruled the offer.

      The defendant asked the court to admit the will and reserve the question of construction, stating- his intention to follow the will with extrinsic evidence. The court thought they must decide upon the objections, and suggested that the extrinsic evidence should accompany the offer of the will.
    The defendant then, in connection with the will, proposed to show that “ Robert Pogue bought the land in dispute March 3d 1831, of Alexander Leiper; and that he married Sarah, his late widow, in the fall of that year; that he was a mail of small means when he married, and that the estate he accumulated, was the result of their joint industry and frugality; that the mansion house thereon was not erected until 1845; that March 5th 1840, the testator purchased about one hundred acres of land in the same township, from the Everett heirs, for $2500, which farm he after-wards, shortly before his death, agreed to convey to George W. Pogue, one of the plaintiffs and executor of his will, in exchange for a tract of land in Whiteside county, Illinois, mentioned in the will, and the deed for the same to George W. Pogue was executed November 17th 1859, three days after the making of his will by the testator; this for the purpose of showing the circumstances under which the will wab made, in respect to the state or condition of the testator’s property; and for the purpose of placing the minds of the court and jury as nearly as possible in the circumstances of the testator, when he made the devising clause which needs interpretation.”
    Plaintiff objected, that the will did not carry a fee to Sarah Pogue, and away from the heirs of Robert Pogue; and objected to parol evidence offered in connection therewith, because there was no latent ambiguity in the will, and because the meaning of the testator could not be explained by evidence outside of the will. Second, that the offer was incompetent and irrelevant.
    After full argument, the court overruled the offer of the will and extrinsic evidence proforma, and sealed a bill for the defendant, saying, they would direct the jury to render a verdict for the plaintiffs, and consider the question raised on a motion for a new trial.
    The defendant excepted, and filed a motion for a new trial. The court entertained the motion for a new' trial, but afterwards overruled it, w'ithout further argument. After the entry of judgment, the defendant took this writ and alleged, that the court erred in the above rulings.

      A. W. & M. C. Aeheson, for plaintiff in error.
    Words of perpetuity are naturally connected with gifts of real estate, and not with gifts of personal estate. Ought there to be any division of the clause in the will at all ? It should be taken as a whole, and the w'ords of perpetuity given full effect in connection with the devise; then the conclusion is irresistible, that the testator gave his wife the farm and mansion house for ever, if she remained his widow. If the words “so long as she remains my widow,” cannot be reconciled with the words of perpetuity, they must give way under the rule of construction relating to repugnant clauses in a will. A devise of profits, is a devise of the land itself: France’s Est., 25 P. F. Smith 223; Crosky v. Dodds, 6 Norris 359. Where there is no devise over, nor any language in the will indicating.an intention to give less than a fee-simple, the devisee takes nothing less : Shinn v. Holmes, 1 Casey 144 ; Schriver v. Meyer, 7 Harris 87 ; Wood v. Hills, 7 Id. 513.
    It was proper to show how the wife assisted by her industry and frugality to accumulate the estate. The court and jury should know how the testator was situated at the time he made his will, who were his nearest kin, what property he owned, in order that they may arrive at the real intention expressed in the will: Weidman v. Maish, 4 Harris 504; Schriver v. Meyer, supra; Postlethwait’s Appeal, 18 P. F. Smith 478; Rewalt v. Ulrich, 11 Harris 388; 1 Redfield on Wills, c. 10, sect. 1.

      D. P. Patterson and Alexander Wilson, for defendants in error.
    An estate to a woman, so long as she remains a widow, is an estate for life: 2 Black. Com. 121; Rodgers v. Rodgers, 7 Watts 15; Bennett v. Robinson, 10 Id. 348.
    It is manifest from a single reading of the clause of the will in dispute, that it makes two distinct gifts. The words “ I give” are used twice in the clause. By the use of the first “give,” something is bestowed upon Sarah Pogue, with the express qualification that it is given to her during widowhood; by the second “give,” some other and different thing is bequeathed to her, with the express declaration that it is to be hers and to belong to her for ever. This is so plainly expressed on the face of the writing, that it is impossible to understand that all the legacies mentioned in the disputed clause were given for the same period, that is, either during widowhood or for ever. The court must draw a line between what was given to be Sarah Pogue’s during her widowhood, and what was given to be hers for ever, because the testator has plainly and expressly directed the drawing of such line. The subject-matter of the first gift was real estate. Of the second gift, personal property.
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This contention arises under a clause in the last will and testament of Robert Pogue. It is this: “ to my beloved wife, Sarah Pogue (so long as she remains my widow), I give all the income of the home farm, on which I now live, containing two hundred acres more or less, with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom, also the mansion house in which I live, together with all belonging to it, and all that is in it, or about it, I give to my beloved wife, Sarah Pogue, the same to be hers and to belong to her for ever.”

The question is, what estate did Sarah Pogue take in the home farm and mansion house thereon ?

In the clause quoted the words “I give” are used twice, once before the use and product of the real estate are devised, and once after the personal estate is specified. It begins by declaring, “ to my beloved wife, so long as she remains my widow, I give all the income of the home farm * * * with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom, also the mansion house in which 1 live.” If the clause ended here, there would be no reason to doubt either the intention of the testator or the legal effect of the devise. In clear and express language the income and profits of the lands were given to her. only so long as she remained his widow. There is not only an absence of words necessary to pass a fee, but there is the express use of words giving a less estate. The gift is unequivocally limited to the time that she shall remain his widow. At the latest the interest devised ended at her death; but would end sooner in case of her marriage. While a devise of the income and profits of land is a devise of the land itself, yet it is a devise of it for no longer period of time than the testator gave the income and profits: France’s Estate, 25 P. F. Smith 220. The income and profits having been limited to the duration of her widowhood, her estate in the land was limited to the same period of time. She took an estate for life, because it might possibly last for life, but liable to be determined sooner, on the happening of the contingency of her marriage: 2 Black. Com. 121; 4 Kent’s Com. 26; Rodgers v. Rodgers, 7 Watts 15. It is not a devise upon condition, nor one the object of which is to impose a penalty or forfeiture; but it is a conditional limitation which marks the extent of the duration of the interest given: Bennett v. Robinson, 10 Watts 348.

The clause proceeds, “ together with all belonging to it, and all that is in it, or about it, I give to my beloved-wife, Sarah Pogue, the same to be hers and to belong to her for ever.” “ It,” manifestly refers to the mansion house stated in the preceding sentence, and the property in and about the house he gives to her. This evidently means personal property. How does he give it?- Not as he has given the products of the land so long as she remains his widow, but “to be hers and to belong to her for ever.” The distinction is thus clearly made between the real and the personal estate. The former is given to her for life, the latter for ever. This view gives effect to the letter and spirit of the will. It would be giving an unnatural interpretation to the clause to say the latter “I give” refers to the use and products of the lands. They had already been given in distinct and appropriate language. It would do still greater violence to the reading of the will to hold that the gift “to her for ever,” which following immediately after the personal estate, had any reference to that other property that he had just said she should have only so long as she remained his widow. As the last part of the clause reasonably and naturally applies to the personal estate only, we will not assume that it was intended to contradict the language he had used in regard to the real estate, nor to change the estate therein given. We see nothing obscure or ambiguous in the will. It does clearly appear therein, that the testator intended to devise to his wife, an estate in the land less than a fee. The fact that he did not devise the remainder is insufficient to overcome or change the effect of the language giving his wife a life-estate only. It follows that the parol evidence offered was insufficient to change its legal effect, and the title of the testator’s heirs must prevail.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Appeal of George T. Work, Sheriff.
    An execution was issued on October 1st 1877 and was made returnable on the 8th of the same month. The levy was made on the 3d day of October 1877. Immediately thereafter the plaintiff in the fieri facias notified the sheriff not to advertise a sale upon said, writ, as he deemed i.t better to allow the defendant in the execution to'sell the property levied on. In consequence of this the sheriff took no final action ; the goods were sold by the defendant at a public sale, on the 10th of October, and the sheriff received no part of the proceeds except his costs on the writ. Five days after the return-day and three days after the sale the appellee served a notice on the sheriff that she claimed $200 arrears of rent out of the proceeds of sale. Held, that the notice was too late, as it was given after the property was sold and beyond the reach of the sheriff.
    November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 236.
    Appeal of George T. Work, sheriff, from the decree of the court directing him to pay Elizabeth Ilowden $200 out of the proceeds of the sale of the goods of David Shanor.
    On 1st October 1877, James M. Miller caused a fi. fa. to issue on a judgment which he had obtained against David Shanor and another. This process was returnable to the second Monday of October; the second Monday being the eighth day of that month. In the execution of this writ, the appellant levied upon personalty of Shanor. The levy was made on 3d October 1877, by a deputy-sheriff, who immediately thereafter informed the plaintiff that the defendant, before the levy was made, had advertised a public vendue of the property. The plaintiff and defendant then had an interview, and the result of their conference, was the conclusion that the property would sell to better advantage at the proposed vendue, than at sheriff’s sale. Miller at once notified the sheriff that under the circumstances he deemed it best to permit Shanor himself to sell the property (he, Shanor having agreed to apply the proceeds to his claim), and directed him not to advertise a sale. In consequence of this direction, the sheriff (having no other claims against Shanor in his hands), took no further action, “for the reason that he thought he had nothing more to do with the writ but receive the costs.”
    On 10th October 1877, Shanor, with Miller’s assent, sold the property upon which the 'levy had been made, at public sale, the proceeds, or the greater part of them, being then handed to Miller to be applied to his claim against Shanor.
    On the 13th of that month, five days.after the return-day of the writ, and three days after the consummation of Shanor’s sale, and the reception of the proceeds by Miller, the appellee notified the sheriff that Shanor’s goods, which had been levied upon under Miller’s writ, were liable to a distress by her for one year’s rent, due 1st September 1877, and requiring him to pay her “ out of the proceeds of sale,” the amount of rent due, to wit: $200.
    As the sheriff had not received any part of such proceeds he did not comply with this demand.
    On May 7th 1878, Elizabeth Ilowden petitioned the court, setting forth that she has a life-estate in certain lands, which, at the date of the issuance of the execution, to wit: October 1st 1877, were held by David Shanor, defendant, under lease from her; that there was due her from said Shanor, $200 of rent, on 1st September 1877 ; that the personalty levied upon by the sheriff under the fi. fa. was on the demised premises, and liable to be distrained by her for said rent; that on 13th October 1877, the property levied not having been sold by the sheriff, she gave him notice of her claim; and that no part of said rent had been paid her.
    The court granted the petitioner a rule upon the sheriff to show cause why he should not pay her the rent demanded in said notice, and on the 21st of May 1878 the sheriff made answer that he knew nothing as to the petitioner’s right to receive rent from Shanor; that a levy was made on personalty, probably upon the demised premises, belonging to Shanor; that he did nothing in execution of his writ other than to make the levy, because after levy made, he was directed by the plaintiff not to advertise a sale; as he (plaintiff) had concluded to let the defendant sell the property which had been levied on, at public vendue; that as he then had no other process in his hands against Shanor, he regarded the direction not to advertise, and the reason assigned therefor, as a stay of the writ; that his information was, that on 10th October 1877, the property levied upon, had been sold at public sale by the defendant himself, with the assent of the plaintiff; and that the proceeds of such sale, were transferred by Shanor to Miller.
    On July 9th 1879 the court, Hart, P. J., made the rule absolute, in an opinion saying:
    “ That the writ of fi. fa. was not stayed by the plaintiff is evident from the sheriff’s own statement of the facts, that after having made the levy he received a notice, or instruction, from the plaintiff, not to advertise, as he (the plaintiff) believed ‘ a larger price could be realized if the defendant himself was permitted to make the sale.’ It is plain, that at any time before the sale by the defendant, the plaintiff could have withdrawn the instructions given to the sheriff, and directed him to proceed with the execution. There was, therefore, no final and peremptory stay of the writ. It follows, that the sheriff having seized the defendant's goods, and afterwards allowed him to sell them and appropriate the proceeds as he saw fit, must be held, in law and equity, accountable to the landlady, as though he had himself sold the property levied, and realized therefrom a sum sufficient to satisfy her claim.”
    From the decree of the court, making the rule absolute, the sheriff took this appeal.

      Dougan & Todd and J. P. Sayer, for appellants.
    It was the duty of the landlord to give notice of the claim for rent before the distribution of the proceeds of sale: Ege v. Ege, 5 Watts 139.
    After sale, the return-day having passed, the sheriff may safely pay the execution-creditor, without waiting for the landlord to assert his claim. If under such circumstances, he is to remain liable three days, he must hold the proceeds indefinitely. There is no suggestion of fraud in the case. On the theory that the money realized at the vendue, was potentially in the sheriff’s hands, we cannot think the law will hold its officer responsible, when he in good faith parted with the fund, after the time when he should have notice of the landlord’s claim, and before he had actual notice of it.

      Aiken & Duncan and John L. Gow, for appellee.
    The direction “not” to advertise was not a stay of the writ. The levy is still in force. The property was not legally advertised for sale and was sold privately by permission of the sheriff. The appellee could not distrain for thus being under levy, the goods were in the custody of the law Pierce v. Scott, 4 W. & S. 344. A sheriff cannot deliver goods to a plaintiff in satisfaction of his debt: Watson on Sheriffs 189. The notice of Mrs. Howden was in time, since the goods under levy were sold and notice given three days afterward. The notice need not have been given before return-day, for the reason that the sale was made after return-day. The notice is in time if given at any time before the sheriff parts with the money: Ege v. Ege, 5 Wright 134.
    If such proceedings are tolerated, an execution instead of being intended to enforce a debt, may hereafter be used to secure it, to the prejudice of those interested in the proceeds of the property levied on.
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

There is no substantial disagreement as to the facts of this case. The execution under which the levy was made was issued on October 1st 1877, and was made returnable to the second Monday of the same month, which was the eighth. The levy was made on the third. Immediately thereafter the plaintiff in the fieri facias notified the sheriff not to advertise a sale upon said writ, as he deemed it better to allow the defendant in said execution to sell the property levied upon. In consequence of this the sheriff took no further action; the goods were sold by the defendant at a public sale on the 10th of October, and the sheriff received no part of the proceeds except his costs on the writ. On the 13 th of October, five days after the return-day, and three days after the sale, the appellee served a notice upon the sheriff that she claimed $200 arrears of rent out of the proceeds of the sale.

We are of opinion that the notice came too late. The directions of the plaintiff in the execution not to advertise a sale was a stay of the writ as to other execution-creditors: Commonwealth v. Stremback, 3 Rawle 341; Corlies v. Stanbridge, 5 Id. 286; Freeburger’s Appeal, 4 Wright 247; Pary & Co.’s Appeal, 5 Id. 273; Keyser’s Appeal, 1 Harris 409; Stern’s Appeal, 14 P. F. Smith 447. And the appellee could have issued a landlord’s warrant, and made a distress upon the property. If the levy still remained good as against the defendant it will not help the appellee, as she gave the sheriff no notice of her claim for rent until after the property was sold and beyond the reach of the sheriff. Had she given such notice before the sale it might have been the duty of the sheriff to have resumed the possession of the property under the execution, as the 85th section of the Act of 16th June 1836, provides that where any goods or chattels liable to the payment of rent are seized upon an execution, such writ shall not be stayed by the plaintiff therein without the consent in writing of the person entitled to such rent. Under the statute of 8 Anne, ch. 14, it was made the imperative duty of the sheriff to pay the landlord one year’s rent, if the same was due, before he removed the goods from the demised premises. But in Pennsylvania, as was said in Ege v. Ege, 5 Watts 134, under our statute, the sheriff is not estopped from removing the goods, and he is protected provided he pays over to the landlord one year’s rent, or the landlord neglects to give notice of his claim in proper time. It was said by Ro&ers, J., in the case last cited: “It would jeopard the rights of the landlord to fix any other period than the sale as the limit of his right to give notice. In practice it is usual to sell goods taken in execution after the return-day of the writ. The sheriff is directed by the act to pay over after the sale, one year’s rent to the land-' lord; it would therefore seem that all the purposes of the act are answered if notice is given at any time before the money is paid over.” The sheriff here, as before observed, had no money in his hands or under his control when the notice was given. In the absence of a claim for rent he could not do otherwise than suspend proceedings upon the execution when ordered to do so by the plaintiff. There was no allegation that the action of the sheriff was the result of collusion, and a part of a scheme between the parties to the execution to defraud the appellee out of her rights as landlord. He appears to have acted in entire good faith, and ought not to be punished now to make good the laches of the appellee.

The decree is reversed at the costs of the appellee.


author: Per Curiam.

text:
    Shriver versus Cowell.
    A collector of taxes has a right under the law to decline to proceed by distress and sale of the taxpayer’s property, and having paid the tax to the proper authority, sue on his warrant. It is in no sense a voluntary payment.
    November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Gi-reene county: Of October and November Term 1879, No. 76.
    This suit was originally brought by David L. Cowell against Jacob Shriver, before a justice of the peace, to recover the sum of $28.84, the amount of school tax alleged to have been levied against the defendant in Whiteley township, Greene county, Pennsylvania, for the year 1875, and paid by the plaintiff for the defendant. The justice having entered a judgment against the defendant by default, the case was removed by appeal to the Common Pleas.
    On the 12th of June 1875, the school directors of Whiteley township common school district, by a yea and nay vote of the board of directors, levied a tax of four mills for school purposes for the year 1874, and also a tax of four mills for building purposes. On the 19th of July 1875 the school board appointed Cowell'collector for the year 1875. .The school directors issued their duplicate for the collection of the above-mentioned taxes, with a warrant to Cowell, the collector. On that duplicate Jacob Shriver stood charged with $28.84. Cowell, on the 2d day of June 1876, settled with the township auditors, and was charged with the $28.84, the amount of Shriver’s tax, and on the same day he paid the same to his successor in office, Mr. Eli Rose.
    After the expiration of the warrant to Cowell, he brought this suit against Mr. Shriver to recover this tax which he had paid for him.
    At the trial the defendant submitted the following points, which the court, Willson, P. J., refused :
    1. If the jury believe from the evidence that Shriver had personal property amply sufficient to satisfy the tax in suit, subject to seizure and sale under the warrant of the tax collector; and that he offered sufficient property to the collector prior to his settlement with the school directors and in the lifetime of his warrant, and he refused to seize and sell the same in satisfaction of the tax, he cannot become a creditor of the defendant without request, and the plaintiff cannot recover in this suit.
    2. If the jury believe that the tax collector was warned by the defendant not to pay this tax for him, and disregarding the authority of his warrant the collector paid the same, he cannot recover in assumpsit for money paid for the defendant, as such action is founded on the presumption that it was paid at the instance and the request of the defendant.
    Verdict for plaintiff, and, after judgment, defendant took this writ, and alleged that the court erred in refusing the above points.

      Crawford Downey, for plaintiff in error.
    The action of assumpsit for money expended by one for the benefit of another, is founded on the presumption of a previous request, under which alone the party could be justified in the expenditure of his money. In this case, if the tax collector preferred to disobey the mandate of his warrant, by refusing to sell personal property in order to satisfy the tax, he necessarily assumed the position of one paying the debt of another voluntarily, and in the absence of any request on the part of the defendant. His act was a mere voluntary courtesy, and he cannot recover therefor: Winsor v. Savage, 9 Metc. 347; Anderson v. Hamilton Township, 1 Casey 75 ; Natcher v. Natcher, 11 Wright 496; Irwin v. Hanlin, 10 S. & R. 219. One person being benefited by th.e payment of money by another is not sufficient to raise an assumpsit against the former. The consent of the party therefore, either express or implied, is essentially necessary to support the action. Cowell could not legally delay the collection of the tax with a view to the expiration of the warrant, and the fact that he did so without the existence of any apparent necessity or compulsion, makes it clearly voluntary.
    If this action prevails, Shriver is compelled to submit to a tax without a remedy, having no opportunity to test the alleged illegality of the assessment.

      A. A. Purman and Buchanan, for defendant in error.
    The l’ight of the collector to bring suit is given in every case where his warrant has expired, and the tax is due and unpaid when he has not been legally exonerated therefrom.
   The judgment of the Supreme Court was entered November 28th 1879,

Per Curiam.

A collector of taxes has a perfect right under the law, to decline to proceed by distress and sale of the taxpayer’s property, and having paid the tax to the proper authority sue on his warrant. It is in no sense a voluntary payment. The action is expressly authorized where his warrant has expired, and he has not been exonerated, by the 3d section of the Act of April 11th 1848, Pamph. L. 624. He may have very good reason for so doing, when he is properly satisfied of the responsibility of the taxpayer. Here the legality of the tax was contested, and if he had levied a distress, he might have been punished in damages to a much greater amount than the articles levied on would have produced at a forced sale. Whether he had a good reason for his course or not, the Act of Assembly gave him the right to pursue it, of which he cannot be deprived. There was no evidence to warrant the instruction prayed for in the defendant’s third point.

Judgment affirmed.


text:
    Ruth Bierer's Appeal. Everard Bierer's Appeal.
    1. It is a sound rule that parties to an ante-nuptial contract, do not, like buyer and seller, deal at arms’ length, but stand in a confidential relation requiring the exercise of the greatest good faith. There must be a full disclosure of the circumstances and property of each. If the provision for the wife is manifestly unreasonable and disproportionate to the means of the intended husband, it raises a presumption of designed concealment and there is on him the burden of disproving that presumption.
    2. The 35th section of the Act of March 29th 1832, gives a widow twelve months in which to elect whether she will take under the will of her deceased husband or take her dower. It also provides for the issuing of a citation by the Orphans’ Court, and that a record be made of her election. Whenever this method is not resorted to; and her election is sought to be shown in pais, it must be by clear and satisfactory evidence that the widow acted under a full knowledge of the property and of her rights.
    3. Where it is proposed to impeach a release of a widow to the executors of her deceased husband, on the ground of fraud, the evidence thereof should be clear, precise and indubitable.
    4. Compromises of doubtful rights, and more especially family compromises, are favored both in equity and law. They imply the surrender of some right. If it afterwards be ascertained that the right relinquished was more certain than had been supposed, it affords no ground for disturbing the compromise. When made in good faith and with full disclosures, family compromises may be sustained in equity on ground less than would be required between strangers.
    November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeals from the Orphans’ Court of Fayette county: Of October and November Term 1879, Nos. 830 and 363.
    Appeals of Everard Bierer and others, executors and devisees of Everhart Bierer, deceased, from the decree of the court dismissing the exceptions of said executors and devisees to the report of the auditor appointed to report upon exceptions to the final and partial account of said executors, and confirming said report.
    Also the appeal of Ruth Bierer from the same decree of said court.
    The material facts are stated in the opinion of this court.

      A. S. Fuller and I). Kaine, for Ruth Bierer.

      John K. Fhoing and Fdward Campbell, for Everard Bierer and others. (See Tiernan v. Binns et al., ante, p. 248.—Rep.)
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

These two appeals are from the same decree, and were argued together.

The main contention arises on two written instruments. The one an ante-nuptial contract between Everhart Bierer and Ruth Shaw; the other a release executed by her after the death of her said husband.

It is a sound rule that parties to an ante-nuptial contract do not, like buyer and seller, deal at arms’ length, but stand in a confidential relation, requiring the exercise of the greatest good faith. There must be a full disclosure of the circumstances and property of each. If the provision secured for the wife is manifestly unreasonable and disproportionate to the means of the intended husband, it raises a presumption of intended concealment, and throws on him the burden of disproving that presumption. Kline v. Kline, 7 P. F. Smith 120; Kline’s Estate, 14 Id. 122.

It is found by the auditor as a fact, that at the time of the execution of this contract, Everhart Bierer was worth about $60,000, and that Ruth had no property or means of support. He therein agreed that she should be paid the sum of five dollars, thirty days after his death, and that whatever property she had or might acquire in her own right, should remain hers. In consideration of the five dollars she agreed, inter alia, to release all right and claim to all the real and personal estate, including money, of which he might die seised or possessed. This paltry sum of five dollars was manifestly so unreasonable, and disproportionate to the value of his property, as to raise the presumption that he designedly concealed from her the value thereof. That presumption was not rebutted by any specific or satisfactory evidence. It is true, the auditor found that they had lived in the same neighborhood for many years, and the circumstances of each were, to some .extent, known to the other. This general information is insuflicient to prove she had knowledge, approximating to correctness, of the value of his property. In the absence of any evidence showing he made a statement to her of any sum that he was worth, we cannot presume §he would have accepted that nominal sum, had she been fully and truthfully informed. It was not, therefore, such a contract as should move a court of equity to decree its specific performance.

The 35th section of the Act of 29th March 1832, gives a widow twelve months in which to elect whether she will take under the will of her deceased husband or take her dower. It also provides for the issuing of a citation by the Orphans’ Court, and that a record be made of her election. Whenever this method is not resorted to, and her'election is sought to be shown in pais, it must be by clear and satisfactory evidence that the widow acted under a full knowledge of the property and of her rights: Anderson’s Appeal, 12 Casey 476. The alleged election by Mrs. Bierer was some two or three weeks after the death of her husband, and she is not shown to have had that knowledge of his property or of her rights, as the law requires to make her election valid.

The remaining question relates to the release which the widow executed about five or six months after the death of her late husband. It is duly executed under seal. After referring to the several matters in controversy, and stating the desire of all parties interested in the estate to avoid litigation and adjust the differences without expense and delay, she proceeds to declare, after full consideration, and for the purpose of settling and compromising all claims and controversies whatsoever, and having already received three hundred dollars from the estate since the death of her husband and in consideration thereof, and of the further sum of seven hundred dollars then paid, together with all the household furniture in the house where her husband died, she releases and quit claims unto the executors of his will in the most full and ample manner all claims of every kind and nature that she has to any and all of the real and personal estate of which he died seised or possessed. The attempt is to impeach this release for fraud. To succeed in this the evidence of the fraud should be clear, precise and indubitable: Stine v. Sherk, 1 W. & S. 195: Irwin v. Shoemaker, 8 Id. 75: Cummins v. Hurlbutt, ante, p. 165.

It appears that David and John, two sons of the testator, who took nothing under the will, and Mrs. Bierer the widow, united together for the common purpose of proving it to be invalid. It was understood between them that no compromise should be made unless all three of them agreed to it. While proceedings towards contesting the will were in progress, offers of compromise were also being made and discussed, and the attorneys of the contesting parties were frequently consulted. The auditor has found that those discussions involved “the effect of the ante-nuptial agreement, the acceptance of the will, the amount of the estate, and her rights as widow.” They resulted in offers that were satisfactory to David and John, who desired the widow also to compromise. To this end a Mr. Brown, at the instance of David, called on the widow and advised her to settle. After some persuasion she consented, and in the afternoon of the same day he returned in company with John, bringing the seven hundred dollars. The release was then executed and the money paid. It also appears that Mr. Parshall, who was employed as one of the counsel by all of the contestants, had advised the widow to accept the $700, in addition to the $300, and personal property. That before the execution of the release he had taken it to her and explained its effect. Thus the conferences with the widow were not between her and the executors, but between her and others who were united with her in contesting the will. The executors neither said nor did anything to her to influence her actions or constrain her free will. Acting under this release and as it appears without notice of objection from her they paid sundry legacies given by the will.

Much stress was laid on the fact that at one time in the conversation with the widow she expressed an unwillingness to sign the release and take the money until she saw Mr. Fuller, one of her counsel, and that John said there was no use in her seeing him as he was not doing anything for her. This, however, does not appear to have been the operative cause in executing the release. She asked John if he was satisfied that was all they would give without a lawsuit. He answered he was satisfied that'was their last proposition and their last effort to settle. He also stated that he and David had agreed to accept the offers of compromise made to them, and the sums they were to receive, and added they would have nothing more to do with her in the matter. It would seem that the unwillingness of John and David to pursue the litigation had weight in inducing her to settle. The good faith of the statement John made in regard to himself and David, and that the executors would give her no more, is not questioned.

It is claimed that the sum received by the widow was inadequate. But inadaquacy of price is not fraud: Graham v. Pancoast, 6 Casey 97; Davidson v. Little, 10 Harris 245. It is only evidence of fraud, and an executed contract will not be set aside for mere inadaquacy of price.

Compromises of doubtful rights, and more especially family compromises, are favored both in equity and at law. They imply the surrender of some right. If it be afterwards ascertained that the right relinquished was more certain than had been supposed, it affords no ground for disturbing the compromise. When made in good faith and with full disclosure, family compromises may be sustained in equity on ground less than would be required between strangers. Bisp. Eq., sect. 189.

There is some conflict of evidence as to what occurred when the settlement was made. We will not refer to it in detail. The auditor found the evidence of fraud in procuring the release was insufficient to avoid it. We discover no sufficient reason to justify us in reversing that finding. In view of the whole case we think the decree should be affirmed.

Decree affirmed, and the appeal in each case dismissed at the costs of the respective appellant.

Justice Trunkey dissented in the case of Ruth Bierer’s Appeal.


author: Mr. Justice Gordon

text:
    Guthrie & Byles's Appeal.
    1. An equitable assignment is an agreement in the nature of a declaration of trust.
    2. Certain claims were assigned by the officers of a company to two attorneys, who were to collect the same and apply them in a particular way. On the same day of the assignment, by a resolution of the board of directors, a specific appropriation of these claims when collected was made. The attorneys had no notice of this resolution. Held, that they were right in following the order of distribution given in their instruction from the officers. Held, further, that the resolution of the board of directors was the mere declaration of an intention to appropriate these claims to a particular purpose, and until there was an execution of that resolution by an actual assignment of the claims to the attorneys there was no application of them.
    November 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Qrawford county : Of October and November Term 1879, No. 20.
    Appeal of Guthrie & Byles, trustees, from the decree of the court in the matter of the petition of George Pitchford and others, for a citation to said Guthrie & Byles to account.
    On the 14th day of July 1874, John Dillingham, treasurer of the Titusville Manufacturing Company, assigned to Messrs. Guthrie & Byles, accounts or claims in favor of said company against Porter, Moreland k Co., Woods, Johnson & Co., and Ealph Dawson. At the time the assignment was made Mr. Dillingham informed Messrs. Guthrie & Byles of the amounts that were due upon these several accounts, and instructed them to apply the proceeds, when collected, to the payment of the following claims against said company, and in the following order, to wit: 1st, a claim in favor of Julius Byles, $244.44; 2d, a claim in favor of Guthrie & Byles of $400, and the balance, if any, to the payment of such laborers as the book-keeper would direct and identify, and in accordance with statements to be furnished by him.
    Messrs. Guthrie & Byles accepted the assignment for these purposes, and upon these terms and conditions. At the time the assignment was made the exact amount due upon these accounts was uncertain, but upon settlement there was ascertained to be due from Woods, Johnson &. Co., the sum of $1476.19, of which Guthrie k Byles collected the sum of $600, and from Porter, Moreland & Co., the sum of $2319.67, of which Guthrie & Byles collected $600. The Dawson claim is in litigation, and is wholly uncollected. All the money collected by Guthrie k Byles was paid over to the laborers as directed by the book-keeper. This was done in two payments, July 31st, and August 29th 1874. As Guthrie k Byles were unable to collect enough to pay the laborers who were designated, Mr. D. H. Mitchell advanced to them for this purpose $2516.74, on condition that they would refund him that amount when they would collect it from the claims in their hands. Guthrie & Byles, on the 31st of July, and 29th of August, thus paid to these laborers, under the direction of Mr. Dillingham and the book-keeper, the sum of' $3616.74. The balance of the claim of Woods, Johnson and Co., after dedueting the amount paid Guthrie & Byles, was afterwards attached. Mr. Mitchell gave them an indemnifying bond and received from them this balance, which he applied to the repayment of the advances he had made. The amount which Mitchell thus received from Woods, Johnson & Co., was $876.19.
    On the day Mr. Dillingham assigned these accounts the following resolution was entered on the books of the company, to-wit:
    “ Resolved, that the treasurer place in the hands of Guthrie & Byles, bills, as follows:
    Porter, Moreland & Co. . . . . $ 2000
    Woods, Johnson & Co. .... 2800
    Walph Dawson .... 3606
    $8400
    to be collected and paid to the employees of the company for work and labor due to them.”
    The auditor found that Mr. Guthrie was absent when the assignments were made, and that Mr. Byles did not know of the passage of the above resolution until after the commencement of the proceedings in this case. It was proved that the general duties of the treasurer was to receive and disburse the moneys and assets in the management of the business. Mr. "Dillingham, the treasurer, made the assignment. At the time he had made the assignment he gave Mr. Byles instructions how to disburse the proceeds of the accounts, and Messrs. Guthrie & Byles did disburse the money received by them as instructed. At no time prior to the commencement of these proceedings had they any knowledge that any different disposition of this money was ever intended or desired by any one.
    The petitioners alleged that they were employees of the company at the time the assignment was made, and that by the terms of the resolution mentioned above, as it appears in the books of the company, Messrs. Guthrie & Byles held the money received from these accounts in trust for them and all the other employees, and that they should receive their pro rata share of the money. The respondents alleged that the resolution mentioned does not create them trustees for any one, that these accounts were assigned to them for a certain specific trust, and that the petitioners are in no way interested in it.

      The court overruled the respondent’s exceptions to the report of the auditor, and made the following decree :
    “January 11th 1876, on hearing and due consideration it is ordered and decreed that the respondents render an account of the trust alleged in the petition, and Wm. S. Morris, Esq., is appointed to state the said account, charging the respondents with all money made out of the said trust, or that with due diligence ought to have been made by them, or either of them, and also finding and reporting who are the persons entitled to share in the said trust and in what proportion they are so ; what amounts have been paid to them respectively, and what amounts remain to be paid to each of them out of said trust, after making to the respondents all proper allowances for their expenses and charges in the management thereof.”
    From this decree’this appeal was taken.

      T. B. Brawley, for appellants.
    The respondents claim that the court erred in decreeing that they should account, for the reasons that the petition did not set forth any grounds authorizing a decree, nor did the evidence show any fund in the hands of the respondent's in which the petitioners had any interest. The resolution of the board of directors, passed July 14th 1874, and set forth in the petition did not, of itself, assign or transfer either of the accounts mentioned to Guthrie & Byles, nor did it authorize or direct an assignment of these claims to them. The language is, “ Resolved, that the treasurer place in the hands of Guthrie & Byles bills as follows, * * * *. * to be collected and paid to the .employees of the company for work and labor due them.” This resolution created no trust in Guthrie & Byles. The legal title to these claims remained in the company still, and it could make any subsequent disposition of the claims it desired, or direct the proceeds to be paid to any other persons than those mentioned in the resolution.
    “ An agent directed to pay money generally without specification of amount, or of the person of the payee, as distinguished from others, has never been held to be a trustee for any other than the principal:" Beans v. Bullitt & Fairthorne, 7 P. F. Smith 221; Williams v. Everett et al., 14 East 581 ; Tiernan et al. v. Jackson, 5 Peters 601; Grant v. Austen, 3 Price Reports 58; Story Equity Jur., sec. 1042.
    The respondents cannot be held for a secret and unknown trust which they never assumed. Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige 127; Dacy v. The New York Chemical Manufacturing Co., 2 Hall Superior Court Rep. 550.

      Minor & Fassett, for appellees.
    This petition is under the Act of June 14th 1836, as to trustees especially ; section 19, Purdon Dig., p. 1418. This act is really but statutory chancery, with certain particulars as to mode of proceeding, and equity principles apply: Brightly Eq. Jur., sec. 314 and note.
    Any order, writing or act which makes an appropriation of a fund amounts to an equitable assignment: Clemson v. Davidson, 5 Binn. 489. See also Mrs. Greenfield’s Estate, 2 Harris 241; Caldwell v. Hartupee, 20 P. F. Smith 74-79.
    The fund is to be distributed pro rata “ to the employees of the company.” Equality is equity.
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1880.

In Nesmith v. Drum, 8 W. & S. 9, an equitable assignment is said to be an agreement in the nature of a declaration of trust, which a chancellor, though deaf to the prayers of a volunteer, never hesitates to execute when it has been made on valuable, or even good consideration. Hence, an order upon an attorney to pay over the proceeds of a claim, when collected, to a surety for the extinguishment of a note on which he was endorser for the drawers, was held to be an assignment. Following this authority, had there been a copy of the resolution, of the 14th of July 1874, served on the appellants, defendants below, at the time of the assignment of the bills against Porter, Moreland & Co. and others, or even had they had notice of that resolution, we would have been compelled to hold them as trustees for the employees of the company. But the auditor finds that Guthrie v. Byles had no such notice; on the other hand, when the assignment of these claims was made to them, they were instructed to apply the money when collected; 1st, upon a judgment of Julius Byles; 2d, to a claim of Guthrie & Byles; 3d, to such employees as should be designated by the book-keeper of said company. Now, as was said in Beans v. Bullitt, 7 P. F. Smith 221, the mere avowal of an intention to apply a fund, or have it applied, in a particular way, has never yet been held to be an application of it. Suppose then, the resolution had remained on the books without anything further having been done, would that have been a valid assignment of the claims specified to the employees? Would it have protected those claims from attachment by other creditors ? Surely not. It was the mere declaration of an intention to appropriate these claims to a particular purpose, and until there was an execution of that resolution by an actual assignment of the claims to the trustees there was no application of them; no interest vested in the employees, and in the meantime the company might repeal its resolution or disregard it, and appropriate the bills as it saw fit. But when the assignment was made to the appellants they were directed by the officers of the company to apply the fund, which might come into their hands, in the manner above stated. If then, they were trustees, and not mere agents or attorneys of the company, they can be held to no other trust than that which they agree to take upon themselves, neither can they be called to an account by persons between whom and themselves there is no privity of contract. The officers of the corporation, doubtless, had a general power to appropriate its assets to the payment of such of its debts as they might designate, and hence when they put certain claims into the hands of the appellants to collect and appropriate in a particular manner, it was not the duty, neither Avas it in the power of the appellants, to search the books of the' company to ascertain Avhether the officers were not transgressing some resolution which might have been previously passed by that company. It is possible, as we have already intimated, that had Guthrie & Byles been officially notified of the resolution, they would have been bound by it rather than by the instructions of the officers, for then the question of the power of those officers to disregard that resolution would have arisen, and they would have been held to a proper determination of that question. As the matter stands, however, all this is out of the case; the appellants did what they undertook to do, and, having so done, they can be held to nothing more.

The decree of the court below is now reversed and set aside and the petition of the appellees is dismissed at their costs.


text:
    Kaine's Appeal.
    1. In a proceeding to levy and sell upon an execution issued upon a judgment against a member of a firm for his private debt, his interest in said firm, the directions of the Act of April 8th 1873, Pamph. L. 65, must be conformed to and the fieri facias must be a special writ commanding the sheriff to sell the special interest referred to.
    2. Hare v. Commonwealth, to use, of Porterfield & Co., ante, p., 141, followed.
    November 22d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of layette, county: Of October and November Term 1879, No. 213.
    Appeal of Mrs. Eliza J. Kaine, and D. Kaine, her husband, from the decree of the court, distributing the proceeds arising from the sale of the partnership interest of William H. Baily in the personal property, interest and effects in the partnership of Fuller, Laughead, Baily & Co.
    The facts are stated in the following opinion of the court below, Willson, P. J.

      “ From the writs and returns thereon, the following appears to be the facts connected with the levy and sale of defendant’s property, from which the money now in court was made. On No. 9, September Term 1878, execution docket sur judgment, No. 27, September Term 1878, in favor of Asa Harris, a return was made by the sheriff, that he had levied on and sold personal property of the defendant, and that on ‘ August 29th, he levied on real estate as per schedule attached.’ This writ was returnable on first Monday of September 1878, and was then returned. An examination of the schedule attached to said return shows that the sheriff had levied on defendant’s interests in certain partnership real estate held by the firm of Gr. H. Wood & Co., and also on defendant’s interest in the partnership of Hogsett, Watt & Co., and also on defendant’s interest in the partnership of Fuller, Laughead, Baily k Co.
    “On September 2d 1878, being the first Monday, an alias fi. fa., to No. 1, December Term 1878, E. D., was issued on the judgment of Mrs. Kaine, against William H. Baily, at No. 415, June Term 1878, and a levy made on defendant’s interest in the partnership of Fuller, Laughead, Baily & Co., and the same was sold on September 30th, for $800.
    .“On the 28th of September a venditioni exponas to No. 34, December Term 1878, E. D., was issued on the Harris judgment, directing him to sell the property levied as per return to fi. fa., No. 9, September Term 1878, E, D. To this writ the sheriff returns, inter alia, that he had sold the defendant’s interest in the partnership of Fuller, Laughead, Baily & Co., as per return to fi. fa., No. 1 December Term 1878.
    “ The money made by the sale of defendant’s interest in the partnership of Fuller, Laughead, Baily k Co., being claimed by Mrs. Kaine and by Asa Harris, the sheriff, on leave given, paid the amount, less costs, into court, and we are now asked to decide to which of the execution-creditors the money shall be paid.
    “It is claimed, on behalf of Mrs. Kaine, that the sheriff had abandoned the levy he had made on the Harris execution; that he merely made the levy and then returned the fi. fa., without.stating that the property remained unsold for want of bidders.
    “ On behalf of Asa Harris, it is claimed that the sheriff having made a levy before the return-day of the writ, and having omitted to sell on the fi. fa., without any directions from the plaintiff Harris, or his attorney to delay selling, the lien of the levy still remained in full force, and that Harris is entitled to the money as the senior execution-creditor.
    “ It may be that the sheriff thought he could not sell the defendant’s interest in partnership real estate on the fi. fa., and, therefore, returned the writ without offering the property described in the schedule for sale. Whatever may have been the notion of the sheriff in so returning the Harris fi. fa., it is not alleged that he was directed to do so by the plaintiff or his attorney.
    “ According to the ruling in Howell v. Alkyns, 2 Rawle 282; Hickman & Black v. Caldwell, 4 Id. 376 ; McCoy v. Reed, 5 Watts 300, and McClure v. Ege, 7 Id. 74, the execution plaintiff cannot be prejudiced by the act of the sheriff in delaying to make a sale where a levy has been made before the return-day of the writ, unless the plaintiff suffers the sheriff to procrastinate for an unreasonable length of time. In this case the plaintiff, Harris, only wasted some twenty-six days, before he issued a vend, exp., a writ that is presumed to be issued by the court, on account of the sheriff being in contempt for not executing the former writ, as he was bound to do. As a levy was made on the Harris fi. fa., and the failure to sell being entirely the act of the sheriff, and the plaintiff not having waited for an unreasonable time in issuing the second writ, the money in court must be applied to the Harris judgment.
    “ And now, June 24th 1879, after hearing the parties, it is ordered that the rule to show cause why the money in court should not be paid to Asa Harris, be made absolute.”
    From this decree this appeal was taken.

      D. Kaine and Ooldren, for appellants.
    The levy and sale of the defendant Baily’s partnership interest in this case was of course made under the Act of April 8th 1873: Purdon’s Dig. 1813.
    This act introduces a new and very extraordinary proceeding, and must be confined strictly to the subject-matter to which it refers, and the manner in which it is to be executed. It authorizes the sheriff or other officer having a writ of fieri facias to levy the sum of said judgment, with interest and costs of suit, upon the interest of the defendant or defendants in said writ of any personal, mixed or real property, rights, claims or credits in such partnership, and thereupon to proceed and sell the same. He must sell on the writ of fieri facias — he can have no other — the act provides for no other. The fieri facias, by virtue of the levy would be a lien during its life, but not beyond. There is no provision for any venditioni exponas, and there can be none. In this case the sheriff levied' Mrs. Kaine’s writ on this partnership interest and sold the same strictly under the act. It was levied subject to no other writ, and if this law is regarded it is entitled to the money.

      Boyle <f- Mestrezat, for appellees.
   Mr. Justice Paxson

delivered the opinion of the court, November 28th 1879.

The executions in this case were both irregular under the authority of Hare v. The Commonwealth, to use of Porterfield & Co., decided at this term, ante, p. 141. It was there held that in a proceeding to levy and sell upon an execution issued upon a judgment against a member of a firm for his private debt, his interest in said firm, the directions of the Act of 8th April 1873, Pamph. L. 65, must be conformed to, and that the fieri facias must be a special writ, commanding the sheriff to sell the interest referred to, &c. These executions were in the usual form, and the sheriff might well have refused to make a levy under them. But he did levy and sell, and the money is now in court for distribution, and claimed upon each writ. To which must it be applied ? Obviously to the one on which the sale was made. The record shows that it was made upon the Kaine writ. It could not have been made upon the Harris writ as the fieri facias had been returned with the levy, and a venditioni exponas issued on the 28th day of September. This was only two days before the sale on the Kaine writ. It is plain therefore there was not and could not have been a sale under the venditioni exponas. Nor could the latter hold the proceeds by virtue of the lien of its prior levy, for not being in conformity to the Act of 1873 it conferred no lien. In such case the execution upon which the property was sold must take the money. The facts of the case as well as the sheriff’s return show that the money was made on the Kaine writ.

The decree is reversed at the costs of the appellee, and it is ordered that the fund in court be paid to the appellants.


text:
    Pittsburgh & Connellsville Railroad Co. versus Sentmeyer.
    1. A servant or employee assumes the risk of all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care.
    2. The master’s liability arises from the fact that he subjects his servant to dangers which in good faith he ought to provide against, but he is not responsible for those dangers to which the servant voluntarily subjects himself, though he does so without carelessness or breach of duty.
    3. Whore an employer has furnished his employees with tools and appliances, which though not the best possible to be obtained, may by ordinary care be used without danger, he has discharged his duty and is not responsible for accidents.
    November 22d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Fayette county: Of October and" November Term 1877, No. 289.

      Case by Daniel Sentmeyer and Susan Sentmeyer, his wife, against the Pittsburgh & Connellsville Railroad Company, to recover damages for the death of their son, alleged to have been killed by the negligence of defendants. The son of the plaintiffs, a young man about sixteen years old, was employed as a hrakeman on a freight train of the defendant company. While thus employed, On the 26th of March 1872, he was knocked or fell off the top of a freight car and was killed, under the following circumstances : A train of empty cars, coming from Brinton to the coke works below Connellsville, was divided into two sections, one running some time behind the other. Sentmeyer was flagman on the first section, an.d for some cause (which did not appear) was directed to get off and go back and flag the section which was behind. He did so, and ■when it started he got on the engine of this section to ride until he overtook his own train. This was some twenty miles below ■where the accident occurred. On this section he had nothing to do but to remain on the engine until he reached his own section. At the place he was killed, there were coke ovens near the upper side of the railroad, from which had been built, many years before, a narrow bridge or gangway, running over the railroad, something over fifteen feet high, on which the ashes from the coke ovens were w'heeled over to get them out of the way. Before the train came to this gangway, Sentmeyer left the engine on which he was, and passed upon and over the top of the cars, for some purpose unknown, and in passing under this gangway was knocked off and killed, and for the loss of his life under these circumstances his parents brought this suit. He had been in the employ of the company about a year.
    On the trial the defendants having proved that the only place Sentmeyer had a right to be, on that section of the train, was on the engine, claimed that having left that place of his own accord, and gone where he had no business and had no right to be, the plaintiffs were not entitled to recover.
    The following were among the points of plaintiffs, all of which the court affirmed:
    1. That by entering defendants’ service, George W. Sentmeyer assumed only the ordinary and reasonable risks incident to such service; and if .the jury believe from the evidence that it was required of employees of the company, of the same class as Sentmeyer, and was usual and customary for them, to be on the top of freight and stock cars while in motion, and that defendant permitted a bridge to be erected and maintained over its track of a height insufficient to allow the safe passage of persons while on the top of such freight or stock cars, and that while on the top of such cars Sentmeyer was knocked off and killed, while in the service of the company; they may find that the death of Sentmeyer was caused by such negligence of the company, as would make it liable to the plaintiffs in damages therefor.
    8. That Sentmeyer had the right to assume that if the company required other employees of the same class to be on top of the freight cars while in motion, they could be there without being exposed to danger to their lives, and they may find that if he, while in the service of the company, went only where other employees of the same class were required to go habitually, and was killed while there, by coming in collision with a bridge which the company allowed to be kept and maintained there of insufficient height to allow the safe passage of persons in such a place, he was not guilt of such contributory negligence as would relieve the company from responsibility for his death.
    6. That before Sentmeyer can be fixed with contributory negligence it must have been shown that he was in fault in doing what he did; that he was not innocent but was incautious; and if the jury believe that he went only where other employees of the same class went and were required to go, and did no more than they did, they may find that he was not in fault nor incautious, but innocent.
    7. That before the jury can find that Sentmeyer was guilty of contributory negligence by being out of his place, they must be satisfied from the evidence that there was a certain place for him by the rules of the company; and evidence that flagmen, taken up like he was, usually rode on the engine, and that his death occurred while he was in another place where other employees of the same class were required to be, is not of itself sufficient to charge him with contributory negligence.
    8. That if Sentmeyer was out of his place, he is not chargeable with contributory negligence by reason thereof, unless he was guilty of actual negligence by being wAiere he was.
    The following were among the points submitted by defendants, with the answer of the court thereto:
    6. That if the jury believe that George W. Sentmeyer was a flagman, and that his position as such was on the engine of the train or section on which he was at the time of the supposed accident, and that he left the engine and passed over the top of the cars, he left his position and was out of the line of his duty and it was at his own risk, and the accident was caused by his own negligence, and the plaintiffs cannot recover.
    Ans. “Refused.”
    7. That the defendant corporation having had the bridge complained of in this case constructed of sufficient height, it is not liable to an employee for injury, when the sinking of the bridge, if any such there was, was not apparent, and of which it had no notice. •

      Ans. “Refused. We cannot say that the bridge was constructed of sufficient height; that is a question for the jury.”
    8. That George W. Sentmeyer, the deceased, having been in the employ of the defendant company for many months, runnizig on the road as a brakeman, had every opportunity of informing himself of the position and height of this bridge, and danger arising therefrom was clearly incident to the labor he undertook to perform. Therefore the plaintiffs cannot recover.
    Ans. “If the jury, find that deceased had every opportunity of informing himself of the position and height of the bridge, then the point is affii-med; otherwise it is refused.”
    Verdict for plaintiffs for $2351.38, and after judgment defendants took this writ assigning for error, inter alia, the answers to the above points.

      D. Kaine and Wm. H. Ooldren, for plaintiff in error.
    An employee entering the service of any railroad company assumes all the risks incident to that business upon that particular line or road, and is presumed to inform himself of the location and permanent construction thereof: Devitt v. The Pacific Railroad Company, 3 American Railway Cases 533. All the questions in the case at bar were ruled in this case.
    The deceased clearly entered this employment and assumed this particular risk, with knowledge thereof, and so remaining for many months had- every opportunity of informing himself, and when he left the engine and passed over the roof of the cars he left his duty and was there as a stranger, and the risk was his own: Owen v. New York Central Railroad Co., 1 Lansing 108.

      O. JE. Boyle, for defendants in error.
    The deceased when he entered the employment of the company assumed only the ordinary and reasonable risks incident to said employment: Patterson v. P. & C. Railroad Co., 26 P. F. Smith 389. The plaintiff’s case was based on the charge that by permitting the bridge to be erected and maintained, as it did, the company was guilty of negligence— that it was not one of the risks that Sentmeyer assumed. This question was fairly and properly submitted to the jury ; and they found it in favor of plaintiffs: Pennsylvania Railroad Co. v. Kilgore, 8 Casey 292; Sh. & Redf. Neg., sect. 283.
    The main question in the case was as to whether Sentmeyer had been guilty of contributory negligence. The burden of proving this was on the company: Beatty v. Gilmore, 4 Harris 463; Canal Co. v. Bentley, 16 P. F. Smith 30; C. & P. Railroad Co. v. Rowan, Id. 393.
    In the case of Owen v. New York Central Railroad Co., 1 Lansing 108, relied on by plaintiff in error, it appears “ the brakeman entered into his employment with knowledge of the bridge’s position and height, and had opportunity to learn of its continuance.” So in Devitt v. Pacific Railroad Co., 3 Am. Railway Reports 533 (Missouri), it appeared that the deceased “had been repeatedly warned to look out for this and other bridges.” * * “That he knew the danger of coming in contact with said bridge, that his attention had been called to the danger of injury from the lowness of bridges on his route, and that with this knowledge, &c.”
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1880.

Where a railroad company voluntarily subjects its employees to dangers which it ought to provide against, and an accident happens to an employee from a want of proper provision against such dangers, the company is undoubtedly liable. But, on the other hand, it is not liable for accident happening from the ordinary risks and dangers of the business, for it is a legal presumption that the servant assumed the risk of such accidents when he entered the service of the company. Patterson v. Railroad Co., 26 P. F. Smith 389. Again, we may further extend, this rule by saying, that the servant, or employee, assumes the risk of all dangers, however they may arise, against which he may protect himself by the exercise of ordinary observation and care. Furthermore, the master’s liability arises from the fact that he subjects his servant to dangers which in good faith he ought to provide against, but he is not responsible for those dangers to which the servant voluntarily subjects himself, though he does so without carelessness or breach of duty. These principles govern this ease. The bridge, by which young Sentmeyer was killed, was fifteen feet and six inches in height from the top of the railroad rails, whilst the height of the cars varied from nine to ten and one-half feet; thus, for the lower cars the bridge was sufficiently high, but for the higher ones, several inches too low. Sentmeyer had been, for several months previous to the accident,_ employed as flagman on one of the trains of this road, and therefore had, or ought to have had, knowledge of the height of the cars used upon it and also of the height of this bridge. These were matters which addressed themselves to his own observation, and, as we have already said, for the prudent exercise of that observation he was responsible. But did he give such attention to the dangers to which he was exposed as an ordinarily prudent man should have given to them ? Certainly not, or the accident would not have occurred. Pie had, almost every day for a month, passed and repassed under that bridge; he knew just where to look for it, and if he paid any attention to it whatever, he must have known that when standing at full length upon a car of medium height) say nine feet six inchesj there was but an inch or two between the bridge and the top of his head. What shall we say, then, of that man’s prudence who would thus risk his life on the difference of two or three inches in the height of a car ? But the court helow held the company rigidly to what it regarded as its duty in regard to the bridge, without any reference to the duty resting upon the deceased to give heed to a known and obvious, danger and prudently to care for himself. “ If,” reads the plaintiffs’ first point, “the jury believe from the evidence that it was required of the employees of the company, of the same class as Sentmeyer, and was usual and customary for them to be on the top of freight and stock cars whilst in motion, and the defendant permitted a bridge to be erected and maintained over its track of a height insufficient to allow the safe passage of persons while on the top of such freight or stock cars, and that while on the top of such cars Sentmeyer was knocked off and killed, while in the service of the company; they may find that the death of Sentmeyer was caused by such negligence of the company, as would make it liable to the plaintiffs in damages therefor.” This point was affirmed without qualification, and it amounts to an instruction that the defendant was bound to have all the bridges,' crossing its road, of such a height that whether its employees were careful or negligent no damage could result to them therefrom.

But what is the logical result of a doctrine such as this ? Is it not, that the company must not only guard its servants from probable but also from possible dangers, and that it must place no dependence on their care and skill even in the matter of their own preservation and personal safety ? That it must provide against their very negligence and become an insurer of their limbs and lives ? We need not say this will not do ; that neither natural nor artificial persons can bear a burden such as this, neither ought they so to do. When men are hired something must be predicated of their judgment and prudence, and, hence, when the employer furnishes them with tools amd appliances, which, though not the best possible, may, by ordinary care, be used without danger, he has discharged his duty and is not responsible for accidents.

But again: the defendant was liable for the consequences of such dangers as it subjected the employee to, and not for those to which he subjected himself. He was the flagman of the preceding train, and- his only duty on the train from which he was killed, was to ride upon it until he overtook his own train. His business was simply to take care of himself, and the whole duty of the company was discharged by affording him a safe place to ride. On that train there were two such places, the caboose and the locomotive ; he might have taken either and been perfectly safe; he took neither, but chose the top of the cars, the place of all others the most unsafe. No duty to the company called him to this position; he chose it of his own free will; he put himself in the place of danger and the direct consequence of this, his own voluntary act, was the loss of his life. Eor this, surely, the company was not liable, for it required of him no such risk. It furnished him with a safe conveyance, all it was at that time hound to do, and if he chose to turn that safe conveyance into one of danger it was no fault of the company.

As this disposes finally of the whole case, we will not dwell on any particular exceptions.

Judgment reversed.