author: Per Curiam.

text:
    Borough of Gouldsboro’ versus Township of Coolbaugh.
    By Acts of Assembly the eastern bank of the Lehigh river was made the western boundary of the county of Monroe. Opposite Ooolbaugh township in said county and on said river is situated the borough of Gouldsboro’, in Luzerne county, whose eastern boundary in its act of incorporation is defined to be the Lehigh river. Section 34 of the Act of June 13th 1836, directs, ‘‘that where a small creek over which abridge shall be necessary shall be the boundary, or on the division line of townships, the bridge shall be built and maintained at the joint and equal expense of the said townships.’] The borough built a bridge across the Lehigh and brought an action against the township to recover one-half the cost thereof under the provisions of the Act of 1836. Held, that the river was not on the boundary line and the action could not bo maintained. Held further, that the action could not be maintained because fhe case of a bridge built over a stream on the boundary of two counties is regulated by the 46th section of the Act of 1836, and to build such a bridge authority must be first obtained from the Courts of Quarter Sessions of the respective counties.

      April 2d 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Monroe county: Of January Term 1878. No. 207.
    Assumpsit by the borough of Gouldsboro’ against the township of Coolbaugh, to recover one-half the cost of erecting a bridge across the Lehigh river.
    The jury found a special verdict, the material portions of which were these: “ That by the Acts of Assembly of September 25th 1786, and April 17th 1795, the east bank of the Lehigh river was made the boundary or division line between Luzerne and Monroe counties, the east bank being on the Monroe county side; that by the Act of May 12th 1871, the village of Gouldsboro’ in Luzerne county was incorporated into a borough, and the Lehigh river is named in said act as the southern boundary thereof; that the township of Coolbaugh is on the opposite side of said river (which at this point is a small unnavigable stream), the east bank thereof being the boundary line of said township; that in 1857, a public road was laid out, beginning in Coolbaugh township, opposite Gouldsboro’, and in the same year a bridge was built, by private subscription, to connect therewith at that point; that in the year 1875, this bridge was burned down; that the proper borough authorities of Gouldsboro’ thereupon duly notified the supervisors of said Coolbaugh township, and requested them to join the authorities of Gouldsboro’ in rebuilding said bridge; that the supervisors refused to join in rebuilding the bridge, or to contribute anything for that purpose, and denied their liability to do so; that thereupon the borough authorities of Gouldsboro’, by her proper officers, rebuilt the said bridge, and before bringing the present suit, demanded from the supervisors of Coolbaugh township, the one-half of the costs and expense of rebuilding said bridge, which, or any part of it, said supervisors refused to pay. If the court should be of the opinion that the plaintiff, upon these facts, was entitled to recover, then judgment was to be entered for said borough for $155.13; if otherwise, then for defendant.
    The court, Dreher, P. J., entered judgment for the defendant m an opinion, inter alia, saying:
    “ The General Assembly have said that the southern boundary of the borough shall be the Lehigh river. But this may be considered a too literal and technical construction, in view of the fact that the old division line is the east bank of the river, and that the division line in or along the river bank, wherever it may be, is rather to be taken as the boundary of the borough, on the river side. In the view we take of the case, this question is of no importance, for granting that the lines of the borough are to be extended across the river to the east bank, we still think the case does not come within the provisions of the 34th section of the Act of 13th June 1836. That section provides that ‘ where a small creek, * * * shall be on the boundary or on the division line of a township, the bridge shall be built and maintained at the joint and equal expense of the said towmships, by their respective supervisors, in the manner directed by law in the case of public roads, which may be the division line of townships.’ The 10th section of the same Act of 13th June 1836, provides that ‘public roads or highways which have been or shall be laid out on a line which divides two townships, shall be opened * * * at the joint and equal charge of such townships; and if either township shall in any such case, necessarily incur more than its due proportion of such charge, it shall be lawful for such township to recover from the other township,’ &c. Now it will be observed that the 10th section provides for the case of a road laid out on a division line between two townships; the same expression as in the case of a bi’idge where a small creek shall be on the boundary or division line. It will hardly be contended that where a road is laid out along and immediately adjacent to a division line, between two townships, but wholly in one, it is on the line in the sense and meaning of the 10th section. So it seems to me that a creek, the east bank of which is the boundary or division line between two townships, cannot be said to be on the boundary or division line, in the sense and meaning of the 34th section of the Act of 13th June 1836.”
    The plaintiff took this writ, assigning this entry of judgment for error.

      Stephen Holmes, Jr., for plaintiff in error.
    It was undoubtedly the intention of the legislature to make the river the boundary between the two counties, and the case is within the spirit and reason of the Act of 1836.

      J. B. Storm, for defendant n error.
    The Acts of 1786 and 1795, make the eastern bank of the river Lehigh the boundary line between the parties. It is beyond dispute that the bank of the river and not the river itself is made the dividing line. If the river had been intended and not the bank, why not have said so ? Why the eastern bank in preference to the western ? The legislature, twice, with an interval of nine years, uses the identical language each time in defining this boundary line. The road is not “on” the division line within the meaning of the Act of 1836 : Roaring Creek Road, 1 Jones 356. The road, to be within the provisions of that act, must be one-half within one county and the other half in another.
    May 6th 1878,
   The opinion of the Supreme Court was entered

Per Curiam.

The court below decided this case on the ground that the Lehigh river was not on the line dividing the township of Coolbaugh from the borough of Gouldsboro’. When Luzerne county was struck off from the territory now constituting Monroe county, the division line was made the east bank of the Lehigh river. On this ground the court held that the case did not fall within the 34th section of the General Road Law of 13th June 1836, which directs, that where a small creek over which a bridge may be necessary, shall be on the boundary, or on the division line of townships, the bridge shall be built and maintained at the joint and equal expense of the said townships, by their respective supervisors, &c. But it is immaterial whether the river in this instance be considered on the division line, as the case is clearly not within the 34th section on another ground. In the case of the Borough of Pottsville v. Norwegian Township, 2 Harris 543, it was held that the law throws the duty of building a bridge on the supervisors, who are required to proceed at once and perform the duty. Therefore, when one party proceeds and builds, after notice to the other, the law raises an assumpsit to contribute. But this is not the case where a stream lies on the boundary of counties. Such case is regulated by the 46th section of the Road Law. There a bridge cannot be built by the supervisor, but authority must come from the Courts of Quarter Sessions of the respective counties, each of which shall appoint three viewers, and a report made to each court; after which these courts shall, together with the grand juries and commissioners of the respective counties, in all other respects, have and exercise concurrent jurisdiction and discretion therein. Thus it is evident there cannot be any erection of the bridge until the requisite authority is obtained, and consequently no assumpsit can arise. If it be conceded that the county line throws the stream in this instance wholly within the county of Luzerne, then no liability can arise on that ground, for it does not lie on the boundary of the counties. In either aspect the judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Raudenbach’s Appeal. Knoble’s Estate.
    1. No presumption of an intent to die intestate as to any part of an estate is to be made when the words of- the testator will carry the whole.
    2. The grammatical construction of language is always entitled to weight in the interpretation of the true meaning of a will, but when it is used by one evidently not familiar with grammatical rules the force of such construction is materially diminished.
    April 3d 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Northampton county: Of January Term 1878, No. 246.

      Appeal of William Raudenbach and others from the decree of the court confirming the report of the auditor, and making distribution of the estate of John Knoble, deceased.
    Knoble died in 1875, leaving a will wherein he directed his real and personal property to be sold by his executors, his debts and funeral expenses to be paid, and after making sundry specific bequests, bequeathed the residue of his estate, as follows:
    “ The remainder to be divided into three equal parts, one part to go to my wife’s (Sarah Knoble’s) brothers and sisters, and if any of the above be deceased to their lawful heirs: the remaining two parts to be divided equally into four parts, and to go to my brothers and sisters, and if they be deceased, to their lawful heirs, with the exception of Eliza Raudenbach’s heirs — they are to receive but one-fifth of such a share.”
    The testator had two brothers and two sisters, one of whom was Elizabeth Raudenbach, and all of whom died before the testator, leaving issue surviving them. Under the provisions of the above clause of the will, the heirs of Eliza Raudenbach claimed that they were entitled to one-fifth of two-thirds of said residue. The auditor, however, only allowed them one-fifth of one-fourth of said two-thirds of said residue, and the court, Meyers, P. J.; sustained this construction of the will in an opinion, saying:
    “ It is contended by the exceptants that the ‘ shai'e’ in the clause, with the exception of Elizabeth Raudenbach’s heirs, they are to have and receive one-fifth of such a ‘share,’ refers to the first division of the entire residuary estate into ‘three equal parts,’ and as one part was to go to the brothers and sisters of the testator’s deceased wife, the remaining two equal parts constitute the share of which Elizabeth Raudenbach’s heirs are to have one-fifth.
    “ The auditor in making distribution of the two equal parts of said residue, interpreted the will to mean that Elizabeth Raudenbach’s heirs were entitled together to the one-fifth of the said one-fourth equal part in which the two equal parts of the said residue was to be divided. We think the. auditor was correct in his construction.
    “ It will be observed that nowhere else in the will is the word share used, except in the clause above stated. In speaking of the division of the entire residuary estate, the testator uses the words ‘ to be divided into three equal parts,’ and after disposing ‘ one part,’ directs ‘ the remaining two parts to be divided equally into four parts, and to go to my brothers and sisters, and if they be deceased to their lawful heirs, with the exception of Elizabeth Raudenbaeh’s heirs, they are to have and receive but one-fifth of such a share.’
    “ What share or part does the testator here refer to ? Had the clause terminated with the word ‘ one-fifth,’ there would be little doubt that the proper construction would be that Eliza Raudenbach’s heirs were entitled to the one-fifth of the said ‘ two remaining parts,’ but when the testator adds the words, ‘of such a share,’ immediately. following the words ‘ one-fifth,’ the mind almost instinctively applies said words ‘ of such a share to the one-fourth part immediately preceding as the share, and not to the words, ‘ two remaining parts,’ more remote.
    “ It is possible that it may have been the intention of the testator that Mrs. Raudenbach’s heirs should have one-fifth of said remaining two parts, and that this was the share he had in view, but in the absence of anything else in the will indicative of such an intent, we would not be warranted to construe it in that way, which would not only violate the ordinary rules of syntax, but would be entirely at variance with the impression which a mere reading of the will and the language makes on the mind.
    “ The effect of this construction of the will is that as to a portion of the residuary estate the testator died intestate, to wit: of four-fifths of said one-fourth equal part into which the two-thirds of said residuary estate was to be divided; or two-fifteenths of the entire residuary estate.”
    The court then directed a distribution in accordance with the foregoing opinion, and from this decree the heirs of Eliza Ra.udenbach took this appeal.

      A. S. Kneeht, for appellants.

      William Beidelman, for appellees.
    May 6th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The contention in this ease arises upon the construction of that portion of the will of John Knoble, deceased, in which he disposes of the remainder of his estate. The clause referred to is as follows: The remainder to be divided into three equal parts, one part to go to my wife’s (Sarah ICnoble’s) brothers and sisters, and if any of the above be deceased, to their lawful heirs, the remaining two-thirds to be equally divided into four parts and to go to my brothers and sisters, and if they be deceased, to their lawful heirs, with the exception of Eliza Raudenbach’s heirs, they are to have and receive but one-fifth of such a share.” The appellants, who are the heirs of Eliza Raudenbach, deceased, claim the one-fifth of the two-thirds of the residue. The auditor and the court below gave them but one-fifth of one-fourth of two-thirds. The court also held that as to the other four-fifths of one-fourth the testator died intestate.

There is an admitted obscurity in this part of the will. The intention of the testator in regard to Mrs. Raudenbach’s heirs is not clearly expressed. It is very plain, however, that he did not intend to die intestate as to any portion of his estate. He first gives a number of pecuniary legacies and then proceeds to dispose of the remainder as above stated.

“ No presumption of an intent to die intestate as to any part of the estate is to be made when the words of the testator will carry the whole:” Stehman v. Stehman, 1 Watts 466; Little’s Appeal, 31 P. E. Smith 190. The fact that the learned judge of the court below was driven by the stress of his position to hold that the testator died intestate as to four-fifths of the one-fourth of the two-thirds of the residue, would of itself lead us to doubt the soundness of the course of reasoning by which he arrived at such a conclusion. An examination of the residuary clause shows that the testator divided the remainder into two parts or shares, one part, consisting of one-third, he gives to his wife’s brothers and sisters as a class; the other share, consisting of two-thirds, he gives to his own brothers and sisters as a class. So far there is no difficulty; but here he evinces an intention of giving the heirs of his deceased sister, Eliza Raudenbach, less than the others, and he accordingly gives them “ one-fifth of such a share.” He had two brothers and two sisters, all of whom were deceased, leaving issue; were the share (two-thirds) set apart for them to be equally divided, the heirs of each brother and sister would get one-fourth. But the testator says Eliza’s heirs shall have only one-fifth. One-fifth of what ? Evidently one-fifth of the share (two-thirds) set apart for his own brothers and sisters. This would give the heirs of the other brothers and sisters the remaining four-fifths of the two thirds, and disposes of the whole estate without an intestacy as to any portion thereof. Looking at the entire will and the clear intent of the testator to dispose of all of his estate, we regard this as the proper construction of the residuary clause.

It was contended by the learned counsel for the appellees that this construction violates “the most ordinary and simple rules of syntax,”" while the learned counsel for the appellants, on the other hand, insisted that “ the language in the residuary clause cannot be parsed as we find it.” The grammatical construction of language is always entitled to weight in the interpretation of its true meaning, but when, as here, it is used by one evidently not familiar with grammatical rulés, the force of such an argument is materially diminished.

The decree is reversed at the cost of the appellees, and it is ordered that the record be remitted, with directions to make distribution in accordance with the views expressed in this opinion.


author: Chief Justice Agnew

text:
    Laubach versus Leibert.
    1. Where one who is indebted to a bank and has a deposit therein draws checks upon the bank which, upon their face, indicate that they are drawn to pay his indebtedness to the bank, these checks operate as an appropriation of the fund on deposit from the time of presentment, and the bank cannot refuse to accept them in payment of the debt of the depositor.
    2. The word “ assignee” appended to the name of the depositor in his account does not earmark the fund, and gives it no identity as belonging to any particular person or fund.
    April Bel 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas oí Northampton county: Of January Term 1878, No. 272.
    Assumpsit by Joseph Laubach, assignee of the Dimes Saving Institution of Bethlehem, against William Leibert, in which the following case was stated for the opinion of the court:—
    William Leibert, defendant, and Levin J. Krause, were assignees of John Krause for the benefit of creditors. In 1874 Leibert, as assignee, opened an account with the Dimes Saving Institution of Bethlehem, and had standing to his credit, as assignee on the books of said bank on May 2d 1877, $3988.76, and interest $487.77, total $4476.53, funds belonging to said estate.
    The Dimes Saving Institution of Bethlehem was, on May 2d 1877, the holder of notes on which Leibert was liable individually as maker, and amounting all together to $1550.
    It was also the holder of notes on which Leibert was liable as endorser, amounting to $3600, said liabilities individually and as endorser aggregating $5150.
    On April 30th 1877, said Dimes Saving Institution of Bethlehem resolved to suspend. They were incorporated by Act of General Assembly of October 23d 1863, and after the passage of the resolution, neither the president, cashier, assistant cashier nor teller remained in the bank. The doors of said bank remained open until May 2d 1877, and Ashton C. Borhek, one of the trustees of the bank, but not one of its executive officers received payment of notes falling due, but neither received any money on deposit or made any payments. On May 1st 1877, a citation was issued by the court, at the instance of a creditor, directed to said bank, and requiring them to show cause why they should not be decreed to make a general assignment for the benefit of creditors, which citation was returnable May 7th 1877. On May 7th 1877, said defendants filed their answer, admitting their insolvency and willingness to make an assignment to G. B. Linderman, Esq.; and a decree was made as prayed for. On May 9th 1877, a general assignment was executed according to the decree, under Act of Assembly of 16th April 1850. On May 2d 1877, Levin J. Krause, a director or trustee of said bank, acting on behalf of William Leibert, both said Krause and said Leibert knowing the insolvent and suspended condition of said bank, presented to Ashton C. Borhek, at the banking house of said bank, the following checks :—
    “ No. —. Bethlehem, Pa., May 2d 1877.
    Dimes Saving Institution of Bethlehem.
    Pay to the order of Levin J. Krause twenty-two hundred and sixty dollars, for note due May 8th.
    William Leibert, Assignee.
    Endorsed — Levin J. Krause.
    Received this under protest.”
    “No. —. Bethlehem, Pa., May 2d 1877.
    Dimes Saving Institution of Bethlehem.
    Pay to the order of William Leibert fifteen hundred and fifty dollars, to take up three notes, one for $450, one for $600 and one for $500.
    $1550. William Leibert, Assignee.
    Endorsed — William Leibert.
    Received this under protest.”
    “No. —. Bethlehem, Pa., May 2d 1877.
    Dimes Saving Institution of Bethlehem.
    Pay to the order of Levin J. Krause one hundred and seventy-eight dollars.
    William Leibert, Assignee.
    $178.
    Endorsed — Levin J. Krause.”
    Amounting to the sum of three thousand nine hundred and eighty-eight dollars ($3988), which checks were received by said Ashton O. Borhek under protest, and so marked.
    The question submitted for the opinion of the court is, whether William Leibert is bound to pay the assignee in cash the whole of the said notes on which he is individually and as endorser liable, or whether the said checks, amounting to $3988, are payment to that amount of the said notes.
    If the court be of opinion that said Leibert is so. liable, then judgment to be entered for the plaintiff for the amount of said notes and interest from the maturity of said notes; but if not, then judgment to be entered in favor of plaintiff only for the balance remaining due on said notes, after deducting said sum of $3988; the costs to follow the judgment, which shall be final.
    The court, Meyers, P. J., in an opinion, inter alia, said:—
    “We are clearly of the opinion that there is no averment of fact or facts in the case stated that constitutes either in law or fact the transaction of May 2d 1877, between Levin J. Krause, on behalf of the defendant, and Ashton O. Borhek, on behalf of the bank, a payment on the notes in suit.
    “The only remaining questions for consideration are, whether the checks themselves, having been presented to the bank and by it retained, or the indebtedness of said bank to the defendants by reason of the credit of the latter on the books of the bank of $3988.76, and interest $487.77, operate as a payment to that extent, in a suit by the bank against the defendant on said notes, or can be pleaded by way of set-off.
    “We are decidedly of the opinion that said checks or indebtedness of themselves cannot operate as actual payment, for that is generally in the nature of a contract, and there are no sufficient averments in the case stated that said checks or indebtedness should operate as a payment or discharge of said notes to that extent. Neither are there any averments of facts that would raise a conclusion of law' that either the checks or the indebtedness should operate as payment.
    “ Can said checks or indebtedness be deducted from said note» by way of set-off?
    “ Generally where one person is indebted to another, the latter can set off a debt due in the same right. In the application of this rule courts have allowed it in cases which apparently ought to have been excluded by the rule. The objection on the part of plaintiff to allow said checks or indebtedness to be treated as a set-off is based on the ground that they are not due by the bank in the same right; that two of said checks are signed by the defendant as assignee, and that the credit of the defendant on the books of the bank is in the name of the defendant as ‘assignee,’ and the fact admitted in the case stated that said credit was in fact for trust funds of the assigned estate of John Krause to the defendant, and another for the benefit of creditors. There is no doubt that the objection would be well taken if said credit had been in the name of the defendant as . one of the assignees of John Krause for the benefit of creditors. It is contended on the part of the defendant 'that the addition of the word ‘ assignee’ to the name of the defendant as depositor does not, without any further designation, give the deposit the character of a trust fund, and make the depositor a creditor of the bank in a fiduciary character. In other words, it is claimed that the word ‘ assignee’ is mere surplusage, and that the credit in its legal effect between the depositor and the bank is the credit of the depositor in his individual right, and as such he has a legal right to the deposit, and to sue for and recover the same: Swartwout v. Bank, 5 Denio 555. Swartwout was collector of customs in the city of New York, and kept an account with defendants in the name of ‘ Samuel Swartwout, collector,’ which was continued to Nov. 1st 1838, when there was a' balance to his credit of $751.26. During the same period he kept another account with the defendants in the name of ‘Samuel Swartwout.’ This account was balanced September 11th 1838. In May 1844, the plaintiff’s interest on the former account was assigned to one F. J., and a check drawn for the same and signed ‘Samuel Swartwout, late collector,’ presented to the defendants, which they refused to pay. On suit brought by Swartwout, the Supreme Court of New York held that where a public officer deposits money in a bank upon an account kept in his own name, with his official addition, in the absence of evidence to the contrary, it is presumed and regarded as his own funds and subject to his drafts. The reason for this decision, as collected from the opinion of the court, seems to be that the defendants, to protect themselves from payment to the plaintiff, must show that by their account so kept they are liable to pay the United States this balance.
    “Is this the law of this state?
    “ It has been held in this state that where a person in fraud of the true owner of money deposits it to his own credit, the owner of the money, on proof of this fact, can recover the money from the depository in his own name: Frazier v. Bank, 8 W. & S. 18.
    “So also'where an attachment was served on a bank, and the defendant in the attachment, subsequently acting as agent for a third person, deposited cash with the garnishee in his own name, and also procured said garnishees to discount drafts drawn by said defendant, though in fact as agent, which were paid by the principal. Subsequent to the attachment, the defendant drew out the funds by his checks and applied them to the business of his principal. Yet it was held that the garnishees were liable to the attaching creditor, although the jury found that all the funds were deposited and drawn out by the defendant as agent for others. It does not clearly appear from the history of the case whether the bank had knowledge at the time the money was deposited that it did not, in fact, belong to the depositor, but the fact that it stood in his name, and apparently subject to the operation- of the attachment, shows the bank had no right to pay out the money to the defendant, on the information that it belonged to him as agent. Especially where the cestui que trust never gave notice to the attaching creditor of any claim, or never appeared in court to move that the attachment should be quashed, nor took any steps asserting ownership or indicative of it: Jackson v. Bank of United States, 10 Barr 61.
    “This case was somewhat doubted by Judge Hare, in Paxon v. Sanderson, 3 Phila. 303, but was fully sustained in F. & M. Bank v. King, 7 P. F. Smith 207, on the ground that at the time the money was paid in the bank the latter had no knowledge that the money belonged to another, and that before attachment they could not have resisted the claim of the depositor in the absence of notice; but that a subsequent payment of the money on the checks of the defendant in the attachment would not entitle the garnishee to defend against the scire facias by attempting to show that the money deposited, in fact, was the money of some undisclosed principal of the depositor. But neither the case of Jackson v. Bank, nor Bank v. King, decide that if the garnishee had not paid out the fund to the depositor, the former could not have defended on the ground that the money did not belong to the depositor. But in Bank v. Jones, 6 Wright 534; 8 Id. 524, and Bank v. Ryan, 14 P. F. Smith 246, it was held that where money was deposited in the name of a person simply as agent, it was competent for the bank, as garnishee in an attachment against the depositor, to show by evidence aliunde that the money belonged to a third person. It was, however, said by Judge Read, in the latter case, that where the depositor can at any time draw money out on his own check, and no person could interpose to prevent it, it is liable to attachment.
    “ The same principle is ruled in Bank v. King, 7 P. F. Smith 202. This was also an attachment case. The defendant in the attachment was John H. Curtis, Jr., and agent for the plaintiff in the collection of rents. He was also agent for the Philadelphia Saving Fund Society, for the trustees of the Fotteral estate, and others. He deposited his funds in the Tradesmen’s Bank, and that of his clients with the garnishees in the name of J. H. Curtis & Son. J. H. Curtis, Sr., was dead, and his son retained the firm name. After the service of the attachment, notice was served on the garnishees that the fund attached belonged to the cestui que trusts above named. On issue joined between plaintiff and garnishees, the court held that it was competent for the garnishees to prove these facts; that the attaching creditor stood in the position of the depositor, and could only recover what the depositor could. In Stair v. Bank, 5 P. F. Smith 364, Wolf, the sheriff of York county, and also executor of Shearer, deposited money in bank which was credited to Wolf in his account as sheriff, but noted in his bank book by a bank officer as belonging to Shearer’s estate. Wolf died, and letters de bonis non c. t. a. were granted to another person, who drew a check on said bank for the money deposited by Wolf and noted in his bank book as belonging to Shearer’s estate. The bank refused to pay it. Suit was brought by the administrator against the bank, and on proof of said facts the court held that the action was properly brought and the plaintiff entitled to recover.
    “A careful examination of the principle on which these cases were decided renders it somewhat difficult to apply them to the facts of the ease'. We can well understand where a principal is entitled to a fund deposited in bank in the name of his agent, w'hy the former should be entitled to recover it, whether on the ground of fraud or the mere fact that he is the lawful owner thereof. So also where money attached in the hands of a person received in the name of the defendant in the attachment, but in fact the money of a third person, that this fact could he set up as a defence by the garnishee when notice had been given by the true owner, or where the latter appeared in court and sought its assistance to protect him against the attaching creditor.
    “ There is no doubt, as we have already stated, that if the money had been deposited in the name of one or both assignees, as assignees of John Krause, for the benefit of creditors, such indebtedness would not be the subject of set-off. For a deposit of money in bank is nothing less than a loan or contract between the parties, and if put in that form, the right of recovery can only be had in that way and in no other. But a deposit by a person designating himself simply “assignee,” though it may have been known at the time by the depository that it was a particular trust fund (which however is not alleged in the case stated), does not necessarily make the contract of loaning between the depository and the depositor other than an individual or personal one in his own right. Would he be obliged to bring suit in his name as one of the assignees of John Krause for the benefit of creditors against the depository to recover the money ? We think not. If in that form then his co-assignee, Levin J. Krause, would necessarily have to join also, for if the word ‘ assignee’ in the credit, coupled with the admission that the money deposited was in fact money belonging to said trust, did not constitute a contract of loaning with the defendant in his individual right, then it must follow that it is a contract by implication with, both assignees in their fiduciary character. But such a conclusion we are not willing to admit. If that were so and the money was lost, Levin J. Krause might possibly be held liable for a devastavit, though he may have had no knowledge of the transaction whatever. But it may be said that assignees for the benefit of creditors occupy the relation of agents to his cestui que trust as principals. That is not so. .The only relation between them is as trustee and cestui que trusts, bearing no resemblance to that of principals and agents. In them as trustees is the legal title and ownership of the trust estates, and in that sense it cannot be said that they are agents of the cestui que trusts as principals. For as between principal and agent the legal title of money belonging to the principal is always in him, though deposited by the agent in his own name fraudulently or otherwise. While that is so he is not bound to invoke his right, but if he does, the depository is obliged to render it to the principal and not to the agent. It is this principle which governs the relation of principal and agent that controlled nearly all the cases above cited, but it has no application to the case under consideration, either as between the parties thereto or the defendant and his cestui que trusts. The cestui que trusts certainly could not give notice to the bank not to pay the money to the assignee, in whatever form he may have deposited it; neither could they bring suit for the recovery of the money. They have, it is true, a remedy to remove an unfaithful trustee, and possibly as auxiliary to the former remedy by proper process, restrain him from recovering the trust funds in his hands. In the proceeding now before the court, the plaintiff has no right to assent, either in his own interest or to protect the cestui que trusts of the defendant, that the fund loaned by the defendant to the plaintiff in fact belonged to the trust estate of John Krause, to defeat the defendant’s right of set-off, unless the former shows conclusively that the contract of loan by the defendant was in his fiduciary character as one of the assignees of John Krause for the benefit of creditors. There are other safeguards thrown around cestui que trusts, and courts are not bound to supervise the transactions of trustees with respect to trust funds in every form they may incidentally come before them.
    “In those cases already cited, where the relation of principal and agent did not enter into the decision thereof, they are such where the transaction shows that the money deposited was the property of another party, who was in position to enforce it on the death of the original depositor. Such was the case of Stair v. Bank, supra. But the principle governing that case cannot be invoked by the plaintiff in his own behalf against the defendant or in behalf of the defendant’s cestui que trusts.

    “Moreover, it does not appear that the trust estate is in any way jeopardized by this plea of set-off’, for neither the sureties of the trustees nor their cestui que trusts are in court asking for relief against said act of the defendant in the manner before stated, and until that is done, or it is made to appear that the contract between the plaintiff and defendant with respect to said money deposited was not on the part of the defendant in his individual right, but with him as one of the assignees of John Krause for the benefit of creditors, we are compelled to hold that the defendant is entitled to set-off against the plaintiff’s claim the full amount of defendant’s credit standing on plaintiff’s books, as ‘ William Leibert, assignee,’ as stated in case stated.
    “And now, judgment is entered in favor of the plaintiff, amount to be ascertained by the prothonotary.”
    The plaintiff, who took this writ, assigned this entry of judgment for error, on the ground that the question of “set-off” was not submitted in the case stated.

      W. B. Doster, for plaintiff in error.
    The question whether the checks or indebtedness could be deducted by way of set-off was not submitted in the case stated, and it was palpable error for the court to consider it. The only question presented for the opinion of the court, whether the checks were payment or not, was decided in the plaintiff’s favor.

      W. S. Kirkpatrick, for defendant in error.
    Of course nothing in the way of matter of fact can be added to a special verdict or case stated by inference or averment, and if the case be defectively stated and not co-extensive with the evident scope of the controversy, it must be amended, or a venire fiadas de novo awarded, in order to prevent a failure of justice. Rut if it contains all the necessary facts and embraces the whole controversy, the court annexes the proper legal consequences. According to the argument of the learned counsel, the defect so far as the judgment below is concerned, is admittedly not that the facts are not sufficiently stated, or of a kind of which the judgment could not be properly predicated, but that the question was not in so many words asked of the court. The question certainly was asked in the very act of submission. The court was substantially called upon to declare the legal aspect of the case stated.
    Even if the contract was made with Leibert, expressly designating himself as assignee in trust for the benefit of creditors, he could sue for and recover the money in his own name, or could off-set the same to any suits against1 him upon contracts. It is not the case of a deposit made by his assignor, to whose right he succeeded as official trustee for certain beneficiaries, but a contract of deposit made with himself in the first instance; and it makes no difference in such a case whether he styles him assignee for creditors, or presents himself unclothed with his fiduciary title, it being analogous to the case of a contract made with an executor or administrator of a decedent, after the death of the testator or decedent: Grier v. Huston, 8 S. & R. 404; Kline v. Guthart, 2 P. & W. 490; Wilmarth v. Monntford, 8 S. & R. 124.
    May 6th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

William Leibert was an individual depositor, and the liability of the bank was to him in his own right. No other could check for the money, or prevent its payment to him. The word assignee ” appended to his name in the account, did not earmark the fund, and gave it no identity as belonging to any particular person or fund. Assignee of whom, or for whom, or of what fund was it ? Nothing in the addition answers these questions. Leibert’s checks were therefore good for the purposes indicated on their face. The fact that they were received under protest made no difference. What right had the bank to protest ? Its duty was payment to its depositor, and the checks were sufficient vouchers. The protest could avail no one else, for it was not a trustee for another. All it could do was to pay the money to Leibert. The checks were therefore his appropriation of his deposit to the purpose expressed, of which the bank had notice when they were received. The delay in payment resulting from the refusal and protest did not change the effect of the appropriation. The money being in the hands of the bank itself, and subject to Ms draft, and the checks being an immediate appropriation of this money, operated to extinguish the notes held by the bank against Leibert. It was not a mere assignment of a fund in the hands of a third party, but a direct application of the money which the bank itself held, and was bound to pay over to him to the notes in question, and therefore the bank was bound so to apply it. On what principle can the bank with the money in its own hands, and a direction to apply it to payment, maintain suit on the notes, and recover the cash, leaving the money in its hands already appropriated, to go to payment of its other debts ? Clearly this would be grossly inequitable. The question propounded in the case stated is, whether Leibert was liable to pay the notes in cash at the suit of the bank ? The court answered this substantially correctly. The criticism on the so-called set-off is therefore unavailing.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Ham et al. versus Smith.
    1. A judgment-note given to a candidate for election, in consideration that he would withdraw in favor of another candidate, is void,"and such a contract is prohibited by the Act of April 18th 1874, and cannot be enforced.
    2. It was error to charge that such a contract was executed by the entry of judgment upon the note, and that iudicial inquiry into the consideration thereof was thereby precluded.
    April 4th 1878.
    Before Agnew; C. J., Sharswood, Gordon, Woodward and Trunkey, JJ. Mercur and Paxson, JJ.. absent.
    Error to the Court of Common Pleas of Wayne county: Of January Term 1878, No. 77.
    This was a feigned issue directed on opening a judgment, wherein William A. Smith was plaintiff and Thomas J. Ham and others defendants.
    In September 1876, Smith was nominated for the legislature, together with A. R. Howe, by the democratic convention of Wayne county. During the same month W. M. Nelson, a democrat, and F. W. Farnham, a republican, were nominated for the legislature, by a body styling itself an anti-court-house or taxpayer’s convention. The democratic county committee proposed to Smith that he should withdraw from the ticket and permit Nelson to be substituted in his place. This he at first declined to do, but finally consented, on condition that the committee would reimburse him for the expenses he had incurred in obtaining his nomination. The defendants, three of the committee, then offered him their judgment-note for $600, payable in thirty days, which Smith accepted and withdrew from the ticket. The note was not paid at maturity, when judgment was entered upon it and execution issued. The ■writ was, however, stayed upon the affidavit of one of the defendants, setting forth the foregoing facts, and a rule granted to show cause why the judgment should not be opened and the defendants let into a defence. This rule was subsequently made absolute and the case set down for trial. At the trial several points were submitted by defendant, which in substance were that the note was an executory contract for the payment of money, and that having been given in consideration of plaintiff’s withdrawal from the candidacy for the office of representative, was in violation of law, and its payment could not be enforced.
    In the charge, the court, Waller, P. J., inter alia, said:—
    “We hold as a rule of law, for the purposes of this case, that the entry of judgment upon the note constituted the contract in this case an executed contract, and the court will not unravel the transaction to hunt out an illegal consideration. We think this ease comes within the rule as laid down in Lestapies v. Ingraham, 5 Barr 81, and recognised and adopted in Fox v. Cash, 1 Jones 212; and Evans v. Dravo, 12 Harris 62. We think it a wholesome rule that though a contract be contrary to public policy, it is, nevertheless, if fully executed, binding on the parties. We therefore withdraw the evidence offered by defendants from your consideration, and direct a verdict for the plaintiff on the judgment. This renders it quite unnecessary to answer the points as presented by the parties seriatim.”

    The verdict was rendered accordingly for plaintiff for $526, and judgment was entered thereon.
    The defendants then took this writ and assigned for error the charge of the court as above.

      C. 8. Minor and H. Wilson, for plaintiffs in error.
    The court had the power to open the judgment and order a feigned issue: Kellogg v. Krauser, 14 S. & R. 143; Hopkins v. West, 2 Norris 110. The contract was against public policy and void : Filson v. Himes, 5 Barr 452; Clippinger v. Hepbaugh, 5 W. & S. 315; Hatzfield v. Gulden, 7 Watts 152; Hunter v. Nolf, 21 P. F. Smith 282. There can be no recovery upon a note made in execution of an illegal contract: Morris Run Coal Co. v. Barclay Coal Co., 18 P. F. Smith 188. The cases cited by the court below are clearly distinguishable from this, and do not sustain the court’s ruling. The contract in the present case is void, also, under the provisions of the Act of April 18th 1874, Purd. Dig. 1866, pl. 36, 37. That act enumerates the purposes for which money may be used to further the nomination and election of candidates for legislative and other offices.

      E. O. Hamlin, Gr. Gr. Waller and II. M. ■8eely, for defendant in error.
    This judgment (the making of the note, upon which it is founded, being admitted in the affidavit upon wrhich the motion to open the judgment was based) needed no support at the outset, from the note or anything else: Cannell v. Crawford County, 9 P. F. Smith 200. Smith had withdrawn, and the note was given and accepted as the fulfilment and execution of the agreement to pay his expenses, and long after the results of the withdrawal had been obtained by the parties judgment was regularly entered upon the note. It was an executed contract: Baker et ux. v. Lukens, 11 Casey 146. The giving of the note therefore was no part of the original transaction. Where, as here, the contract has been executed, and one of the parties holds the result, and the action is not on the contract precluded but upon another instrument unimpeachable upon its face, requiring no evidence to sustain it, he should not be allowed to go into the original transaction to show that the thing sought to be recovered was the result of an illegal transaction. This principle is well settled in Pennsylvania in Lestapies v. Ingraham, supra; and in Fox v. Cash, 1 Jones 211; Evans v. Dravo, 12 Harris 62; and approved in Walker v. Kremer, U. S. Circuit Court, in 4 W. N. C. 544. An agreement is not void on the ground of public policy unless it manifestly contravenes it and is injurious to the interests of the state: Chitty on Contracts *579. The rule as to public policy is not to be extended: Richardson v. Mellish, 2 Bing. 229. The cases cited by plaintiffs in error it is respectfully submitted do not apply. This is not the case of a violation of a statute, as in Hopkins v. West, 2 Norris 110. The Act of April 18th 1874, has no application, no person concerned herein at the time said note was given being a candidate for any office whatever, and the law is applicable only to candidates.
    May 6th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

The rule to open the judgment in this case, was made absolute by consent of the parties, and no conditions were imposed upon the defendants. The plaintiff must therefore prove his case as on a new trial: Carron v. Coulter, 2 Grant 131. Hence, the court erred in holding the judgment itself to be an important fact in the issue trying. The order opening the judgment vacated it, except for the purposes of lien, and whether the plaintiff was ever again to recover it depended upon the case which should be presented to the court and jury. The only question we have before us is, whether the consideration of the note of Ham et al. to Smith, could be made the subject of judicial inquiry? That that consideration was in fact illegal is not doubtful. According to Smith’s own testimony, it was proposed by a committee of his party, that he, as the nominee for representative, should withdraw in order that Nelson might be substituted. This he agreed to do, if they would pay him the sum of $500, at the same time threatening if his terms were not complied with, to run at all events. The result was the note in controversy. Now it matters not that he had spent this amount or more in securing his nomination, it was nevertheless the price to be paid for his withdrawal, and the price to be paid in order to remove a competitor from the way of Nelson; in other words, it was so much to be paid in order to secure Nelson’s election. Furthermore, the committee had no choice; his expenses, as he chose to term them, might have been $500, or they might have been nothing; that was Smith’s price, and they must agree to pay it or run the risk of having Nelson defeated. That this whole transaction was, therefore, corrupt, immoral and within the prohibition of the act of 18th of April 1874, is not doubtful. To cite authority to prove that courts should not lend their aid to enforce contracts, such as this, would be spending time to no purpose, since no one doubts it. But it is said the contract has been executed, and, therefore, the courts will not interfere. The law is, undoubtedly, well stated if the fact were so. But the contract has not been .executed, and the court is now required to lend its aid for the purpose of its execution. Judgment is asked upon the note, and the proof shows the note to be part of an illegal and void contract; how, then, can the court enforce it ? As was said by Mr. Justice Agnew, in answer to an argument similar to the above, in the case of The Morris Coal Co. v. The Barclay Coal Co., 18 P. F. Smith 188, “ When a bill, note or bond is but-an instrument to execute an illegal contract, it is tainted by the illegality and cannot be recovered. The illegal consideration enters directly into the instrument, and is followed up because the law will not permit itself to be violated by mere indirection.”

Were the doctrine otherwise, every illegal contract, however much opposed it might be to public morality or even to common decency, might be readily and securely covered from judicial inquiry by the mere interposition of a note or bond. Were it only a question between the parties we might leave them to the consequences of their own contracts, but it is not so; it extends further and involves the public welfare, and we certainly know that the best way to suppress any public vice is to make it unprofitable.

Judgment reversed, and a venire facias de novo awarded.


text:
    Foster’s Appeal.
    1. Where it is shown that the will of a testator was in existence unrevokedl at the time of his death and was afterwards lost or destroyed, its contents may be proved by parol and the will as thus reproduced admitted to probate.
    2. AVhere it is shown that the testator always had his will in his custody, and after his death it could not be found, the presumption is that he destroyed it animo revocandi; but such presumption may be removed by sufficient evidence.
    3. Whenever a dispute arises upon a matter of fact before a Register’s Court, the right to an issue is undoubted, but the demand therefor must be made in due time and where it was not made until after a report by an examiner, a hearing by the court and a motion for a re-argument, it was not error for the court to refuse an issue.
    April 6th 1878.
    Before Agnew, C. J., Sharswood, Mercur Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the decree of the Orphans’ Court of Wayne county: Of January Term 1878, No. 78.
    The facts were as follows: Isaac P. Foster died on November 18th 1876. On December 7th 1876, the two sons of decedent, William II. and Isaac N. Foster, and his attorney, Charles S. Minor, appeared before the register of wills of Wayne county, and alleging that the will of said decedent had been lost, exhibited a paper which had been reproduced from notes of instruction given to said Minor by decedent, from which said lost will had been drawn, and asked that said paper as thus reproduced should be admitted to probate. The register admitted the paper to probate as the will of said decedent, whereupon several of his children appealed to the Orphans’ Court. An examiner was appointed by said court, before whom Minor testified that he had drawn six wills for decedent, dated respectively in 1861, 1862, 1865, 1867, 1870 and 1875; that decedent came to him with his first will in 1860, and that whenever a new will was drawn the old one was always left with witness and was never cancelled until after the new one was executed ; that decedent had frequently stated to witness that it was his wish to make a disposition of his property by will for the reason that twro of his sons had assisted him in acquiring it; that the reproduced will was made up from memoranda in the handwriting of the decedent, and from which his last will had been drawn.
    William H. Foster testified that he had a talk with his father about the existence of a will during the last week of his life, in which he expressed a desire to have a change made therein concerning the substitution of money for certain bonds which testator had given to his daughters; that in another conversation, in speaking to witness about his will his father had said: “ Mr. Minor knows all about it; you will find everything pertaining to my estate in the lower drawer of the secretary in my bed-room; I wish these papers to pass into your hands.” Witness had known previously to that time where his father had kept his last will; had shown him where he kept it; was in the lower secretary drawer at the right hand end; when his father showed it to witness he took out a large envelope and said it contained his last will; it was endorsed “ The last will and testament of Isaac P. Foster,” in the handwriting of Mr. Minor; he replaced the envelope in the drawer; always kept that drawer locked, but the upper one was left unlocked, and by drawing it out the contents of the lower drawer could be removed; after his father’s death a careful search was made through the drawer and in every conceivable place where the will would likely have been put, but it could not be found.
    Isaac N. Foster testified: “I saw father on Wednesday preceding his death, about noon. I took a seat near his bed and he commenced talking about his business matters. He began the conversation in this way: ‘ I don’t know as you know that I have paid that $1200 note. You know what note I mean.’ I answered I did, and mentioned the note. ‘You mean the Isaac Ward note.’ Father said, ‘ As my will is, I don’t know but what William can lay claim to that note. I don’t want him to do it, and don’t think he will.’ I replied to him that we had better see William. He then said that he wanted to see Mr. Minor, William and myself together. ‘ Mr. Minor knows all about my matters and wishes, and in my will I have left him sole arbitrator of all matters of differences.’ Father was at this time suffering a good deal of pain ; he was physically weak ; his mind was active and good, no doubt about it; he was undressed and in bed. I was there in the neighborhood of an hour.
    “Previous to this, had learned from father that he had made a will; he was in a sort of a stupor from Thursday until his death on the Saturday following.”
    Other witnesses testified to the feeble condition of the decedent during the week previous to his death, and to his inability to leave the room. The subscribing witnesses also testified to the execution of the will.
    The case was argued before the Orphans’ Court and subsequently a petition for a re-argument was granted. Accompanying the petition was a request for a prcecipe for an issue to the Common Pleas to try the disputed facts.
    In an opinion the court, Waller, P. J., inter alia, said:—
    “ The first inquiry arising in the case is, whether, under the evidence reported by the examiner, any disputed facts material to the issue are disclosed, which render it necessary to certify the case to the Common Pleas to obtain the finding of a jury as auxiliary to the court in passing upon the questions presented by the papers and argument. The granting of an issue of fact is not a matter of right, but rests in the sound discretion of the court, and, unless the evidence is contradictory upon material points, it is clearly the duty of the court, taking into consideration the delay and expense attending it, to refuse such issue: Commonwealth v. Bunn, 21 P. F. Smith 412; Graham’s Appeal, 11 Id. 45, and Wikoff’s Appeal, 3 Harris 281. There are disclosed by the evidence some contradictions of witnesses, but it does not seem to us that they are upon material points, but are different recollections of conversations which were had after the death of decedent and after probate of the paper, rather than facts which would materially affect the real questions presented in the case. We therefore conclude that a reference to a jury is unnecessary. The fact, that Isaac P. Foster made a will on or about the 5th of June 1875, which was written by C. S. Minor, Esq., under the instructions of the testator, mainly in writing, is established and not controverted by the evidence. Decedent died at his own house, surrounded by his family, on the 18th day of November 1876, after an illness of less than a week. The will had been delivered to or left with the testator by Mr. Minor, at the time of his execution of it. After his death diligent search for the will was made by various members of his family, but no will was found. These facts raise a presumption, that the testator destroyed his will animo revoeandi: Greenl. on Evidence 688 and note; 1 Redfield on Wills 331; Jarman on Wills 231, and 2 American Leading Cases 510, with authorities there cited. This cast the burden upon the proponents of rebutting the presumption by sufficient evidence. This presumption may be rebutted by such evidence as produces a moral conviction to the contrary: Davis v. Davis, 2 Add. 226 ; Minkler v. Minkler, 14 Vt. 125, and 1 Redfield on Wills 329.
    “ Proponents rely chiefly upon the acts and declarations of the testator for several years preceding and down to within a few hours of his death to repel this presumption. Acts and declarations of a testator are admissible to repel the presumption that he destroyed his will animo revocandi: Jones v. Murphy, 8 W. & S. 275 ; Youndt v. Youndt, 3 Grant 140 ; Havard v. Davis, 2 Binn. 406; Davis v. Davis, supra, and Minkler v. Minkler, supra. It is well settled that declarations of a testator as to the contents of his will, or the testamentary disposition of his property a.nd estate, are of little weight as against a will proven or to establish the contents of a lost will. Especially where, as is generally the case, the declarations are made to importuning or complaining relatives. But these are to to be distinguished, we think, from the acts and declarations of a testator tending to show and showing his conviction and understanding, that he has a will in existence at the time of his decease. , If the will was destroyed or lost without the agency of the testator, it does not cease to be his will, provided its contents can be sufficiently proven.
    “ It appears from the evidence, that for many years Isaac P. Foster had been careful not to be without a will. That he made some seven wills, the last of which was in June 1875, and whenever he desired a new will drawn he produced the preceding one, and directed the particular changes he desired. That he assigned to Mr. Minor, his counsel, at times of making his wills as a reason for having a will, ‘ that an equal distribution among his children would be a most unjust thing, as William and Isaac had helped acquire the property, &c., and that the joint earnings remained in his hands, and that he held it in trust for them.’
    “ The agreement of several of the heirs, after their father’s death, in writing, requesting Mr. Minor to reproduce the will, is based upon the understanding that testator had a will at the time of his death, and that the same could not be found and is so expressed. That the death of Horace Weston, a son-in-law, rendered a change in his will necessary, and as in former cases, he produced the will of 1870, and instructed Mr. Minor to draw a new one, making such changes as the altered circumstances of his family appeared to him to require. That he made provisions in his will for his granddaughter, Harriet J. Weston, who for some six or seven years had waited upon and taken care of himself and an infirm and enfeebled grandmother, and without such will this granddaughter would have no portion of his estate. That he said to his son-in-law, Luther M. Chase, in September 1875, in speaking of what he had theretofore done for Mrs. Chase, his daughter, ‘ that he didn’t know as he could do more for ‘ the girls’ than he had already named or provided to be done in his will.’ That in the early summer of 1876, he spoke to Mr. Minor of a change he wished to make in his will to provide for payment by his executors of moneys instead of some railroad bonds he had left them in his will. That October 12th 1876, a month or so before his death, he spoke to Mr. Minor on the same subject, and when advised that a codicil would be sufficieut for that, said to him ‘ that when he felt able he would call and have it done,’ and if he should die without doing it, he instructed Mr. Minor to see that his executors did as he desired in that matter. That he, at different times, spoke to William H. Foster, his executor, upon the same subject, and enjoined it upon him to carry out his wishes in that particular.
    “ That he spoke to his daughter, Mrs. Ward, about a fortnight before his death, saying that he didn’t know as he had done right in sending money to Mrs. West, another daughter, for the education of her child; he thought he ought to have left it for her under his will, and that the amount, $200, was to be taken out of her portion in his will. That he spoke to William and Isaac as to his son James and the provision of his will. Told Isaac that James wanted him to release liens he had on James’s property in Ohio, but he didn’t want to do it, as it would oblige him to re-write his will. That he expressed a desire to have Mr. Minor, William and Isaac come to his room with reference to the change he had spoken of with reference to the railroad bonds to the girls. This was the last day lie was conscious. That the same day he talked with Isaac about his will; said to him that he didn’t know but William might, under his will, lay claim to a note of $1200 against Isaac Ward, but he didn’t want him to collect it, but hand it over to Mrs. Ward. That the same day, and after the conversation with Isaac, he said to William that it was no matter about having Mr. Minor come up, he had seen Isaac and it was all right; Mr. Minor understood all about it. He told Isaac that he had made Mr. Minor sole arbitrator in his will to settle any disputes. After talking with William about his will, the last day that he was conscious, he told him that he would find all the papers relating to his estate in the lower secretary drawer, and wished them to come into his hands as one of his executors. It is also in evidence that from Monday morning until he died, on Saturday, he was not able to leave his bed without help. That he informed William and Isaac that he would leave James’s matters to them as his executors, to dispose of as they thought best.
    ‘ ‘ Contestants argue these and other circumstances brought out in the evidence, are not sufficient to rebut the presumption of a destruction of the will by the testator animo' revocandi. That by reason of advanced years and failing memory he might have destroyed his will and forgotten’ all about it, and in his senility have talked of it as an existing instrument. In support of this theory, they have shown a single instance of having forgotten that Josiah, his son, had taken some bonds to the bank for safe-keeping. They furnish no positive or circumstantial evidence of the destruction of the will or of its cancellation in any of the modes prescribed by Act of Assembly, by the testator. It appears from the evidence and is uncontradicted that testator retained his mental faculties up to Thursday morning before his death, and it is also made apparent from his conversations with his children and the attention he gave to matters relating to his estate to the Thursday morning before he died. These facts and circumstances lead us to conclude the testator died with the full conviction and belief that he had a will that would be operative at his death, and render it highly improbable that he should have destroyed it. We therefore come to the conclusion that the presumption of destruction of the will by the testator, animo revocandi, is repelled by competent and sufficient evidence.
    “ The next question presenting itself is, can the contents of a lost or missing will be admitted to probate ? This question has never, so far as our researches go, been settled by any court in Pennsylvania.
    “It is, however, a well-settled rule of law in this state that lost bonds, deeds, depositories, records, &c., may be proven, and when the loss is properly established, the contents of the lost instrument may be given in evidence. It has also been held here that the contents of a lost will may be given in evidence in ejectment. In Havend v. Davis, 2 Binn. 417, before cited, Tilghman, C. J., where the question was raised in the court below and ruled against the proof of contents, reversed the court below on the ground that the parol proof of the contents of the will was improperly rejected. That was an issue from the Register’s Court to try whether a certain paper writing was a last will or not. By a reference to 1 Jarman on Wills 231; 1 Redfield on Wills 329; 1 Williams on Executors 322, note; 3 Redfield on Wills 17, note; Clark v. Wright 3 Pick. 67; Betts v. Jackson, 6 Wend. 173 ; Dickey v. Malachi, 6 Mo. 183; Davis v. Davis, supra, and Minkler v. Minkler, supra, it seems to be very well settled that the contents of a lost will may be admitted to probate, provided they can be established by competent testimony. But before this may be done it must appear affirmatively :
    “ 1. That such will had been duly executed, and that testator was of disposing or testamentary capacity.
    “ 2. That the will cannot be found after diligent and thorough search subsequently to the death of the testator.
    “ 3. That it has not been revoked by the testator.
    “ 4. That the contents of such will are correctly proven.
    “ It may be here remarked that the allegation of undue influence in the making of the will, is not sustained by a particle of evidence, and is therefore dismissed.
    “Now applying the foregoing rules. 1st, it is established by the evidence of C. S. Minor, B. B. Smith and John Brown, that on or about the 5th of June 1875, the testator executed a paper, which he declared as and for his last will and testament, in their presence, and to which, at his request they affixed their names as subscribing witnesses. They further testify to his testamentary capacity. 2d. It is conclusively established, and not denied, by the evidence of the executors and others, some of the contestants included, that thorough and exhaustive search was made for the will shortly after the death of decedent and that it could not be found. 3d. This point is disposed of in a preceding portion of this opinion. 4th. The contents of the will of June 5th 1875, is sufficiently and legally established by the evidence of Chas. S. Minor, Mrs. N. P. Minor, and the memoranda furnished by the testator to Mr. Minor for the drawing of the will; copies of which are attached by the register to the reproduction of the will as probated by him.
    “Mr. Minor testifies that the reproduced will is substantially, accurately, and almost verbally a copy of the will of June 5th 1875, which was in his handwriting, as shown by him and by B. B. Smith, a subscribing witness; and is sustained by the evidence of Mrs. Minor, who had before her the will of 1870, the notes of the testator as furnished to her husband, and who read and compared for and with her husband as the will was written. We have then a copy of that will established, not by the unaided memory'of one witness as to its contents, or the defective memory of mere subscribing witnesses who might have heard it read; but by the evidence of the testator’s trusted and familiar attorney, who had been intimate with testator and cognisant of his affairs for many years, and had prepared for him some'six wills, each succeeding will having been compared with its predecessor, which was duly preserved until the succeeding will was executed, by the written memoranda of testator given in evidence, and by Mrs. Minor, who was familiar with the wills of testator and designates the paper probated as an exact copy of the will.
    “ Under all these circumstances, and adopting the will as laid down by Redfield, J. (author of Redfield on Wills), in Minkler v. Minkler, 14 Vt. 125, cited above, we think appellants have failed in point of law and fact to sustain the appeal.
    “ We therefore adjudge and decree that the paper writing admitted to probate by the register of wills, as and for the last will and testament of Isaac P. Foster, deceased, is established by sufficient and competent proof.
    “ The appeal is therefore dismissed, and it is adjudged and decreed that the probate of the register of wills be affirmed.”

      J. M. Moyer, George J. Purdy and F. Gar roll Breioster, for appellants.
    The Act of 15th March 1832, § 41, Purd. Dig. 1256, pi. 22, provides that whenever a dispute upon a matter of fact arises before a register’s court, the said court shall, at the request of either party, grant an issue; this act is mandatory, and allows no discretion : De Haven’s Appeal, 24 P. F. Smith 337; Wickersham’s Appeal, Id. 336.
    A testator having taken his will into his custody, if it cannot be found after his death, the presumption is that he destroyed it: Wharran v. Wharran, 33 L. J. P. 75; Keen v. Keen, 42 Id. 61; Johnson v. Lyford, 37 Id. 65; Loxley v. Jackson, 3 Phillimore 128; Brown v. Brown, 8 Ellis & Bl. 875; Betts v. Jackson, 6 Wend. 173. In this latter case, the law upon the principles of this case, both in England and this country, was elaborately set forth.
    The authorities in Pennsylvania are equally strong upon the same general principle. In order to make a will effective, it must be shown to have been in existence at the testator’s death; otherwise it is not his will. Until his death, it can have no effect; he retains full power and dominion over it, and he may either retain or destroy it at pleasure, and in the absence of the corpus of the will, the presumption is, that he has destroyed it himself, and no declaralarations of intent, condition and circumstances of family are sufficient to rebut the presumption. To this effect are the cases of The Baptist Church v. Robbarts, in 2 Barr 110; Jones v. Murphy, 8 W. & S. 275; Clark v. Morton, 5 Rawle 235.
    That there are instances in which the contents of a will may be established by parol testimony is not controverted, but the rule holds only in cases where it is clearly shown that the will was lost or destroyed without the agency of the testator, as in the case of Clark v. Wright, 3 Pick. 67, where the codicil was fraudulently destroyed, in which case the court admitted parol proof of its contents. The case of Idley v. Bowen, 11 Wend. 227, is another illustration of the same rule. In that case the court said: “Where a will duly executed by the testator was destroyed in his lifetime without his authority,” it might be established by parol proof. In Steele v. Price, 5 B. Monroe 68, where the testator was a man of dissipated habits, evidence was admitted to show loss or, destruction from accidental causes for the purpose of rebutting the presumption that he intentionally revoked his will.
    jET. M. Seely and Creorge Cr. Waller, for appellees.
    1. If a will be lost, or destroyed otherwise than by the act of the testator, and satisfactory evidence of its execution and contents be offered, such contents will be admitted to probate: Trevelyan v. Trevelyan, 1 Phill. 149; Davis v. Davis, 2 Addams 226; Patten v. Poulton, 1 Swab. & Tris. 55; Clark v. Wright, 3 Pick. 67; Dickey v. Malechi, 6 Mo. 182; Dawson v. Elizabeth Smith’s Will, 3 Houston 335; Minkler v. Minkler, 14 Vt. 125; Youndt v. Youndt, 3 Grant 140 ; Jackson v. Halloway, 7 Johns. 394.
    2. The presumption of revocation of a will left in the custody of the testator and not found after his decease, is merely prima facie, and may be rebutted. Cases cited above, and Whiteley v. King, 17 C. B. N. S. 756; McBeth v. McBeth, 11 Ala. 596; Betts v. Jackson, 6 Wend. 187.
    3. Declarations of the testator are admissible to rebut this presumption : Boudinot v. Bradford, 2 Dall. 266; Burns v. Burns, 4 S. & R. 297; Will of John Cooke, 10 Pa. L. J. 355; Wikoff’s Appeal, 3 Harris 292; Havard v. Davis, 2 Binn. 425; Youndt v. Youndt, 3 Grant 140; Grant v. Grant, 1 Sand. Ch. R. 235; Johnson’s Will, 40 Conn. 587 ; Durant v. Ashmore, 2 Rich. 184; Gaines v. New Orleans, 6 Wall. 659; Steele v. Price, 5 B. Mon. 68; Weeks v. McBeth, 14 Ala. 474; Goodlittle v. Otway, 2 H. Bl. 516; Welch v. Phillips, 1 Moore P. C. C. 302; Sugden v. Lord St. Leonards, Law Rep. 1 Probate Division 154.
    4. The Orphans’ Court are not bound to grant an issue unless such a conflict of evidence exists as would justify a verdict in favor of either party: Wikoff’s Appeal, 3 Harris 289; De Haven’s Appeal, 25 P. F. Smith 340; Graham’s Appeal, 11 Id. 45; Cozzen’s Will, Id. 201; Commonwealth v. Bunn, 21 P. F. Smith 412, 413; In re Will of Rebecca Colgate, 35 Legal Int. 90.
    May 13th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

That Isaac P. Foster made and executed in due form of law a will in writing, on or about the 5th of June 1875, is an indisputable fact. That the contents of this will are clearly and fully proved, both by testimony and by written memoranda in the testator’s own handwriting, is equally plain, and no question arises as to the number of witnesses, the contents being proved by two, as well as by the memoranda furnished by the testator himself. The will not being found after the testator’s death and diligent search, two material questions arise upon the assignment of errors:

1. Whether the presumption of revocation by the testator himself is rebutted by the evidence.

2. Whether the contents can be proved by parol evidence.

There is ample evidence to rebut the presumption of a revocation by the testator. Many facts contribute to this result, among which these leading circumstances appear. Isaac P. Foster was never without a will for the last fifteen years of his life, having had seven written under the supervision of counsel and made necessary by the nature and amount of his estate, the number of his children, and advancements made to some, and those matters were often dwelt upon by himself. He, himself, regarded his will of 1875 as existing until and while lying on his death-bed, when too feeble to destroy it without assistance. Up to this time he made efforts to procure a codicil to alter the will in a certain aspect, made necessary by the failure in the payment of interest on certain bonds, but being prevented by the extremity of his last illness, died under a belief that he had arranged with his executors to pay these legatees money instead of the bonds. These and corroborating circumstances show that the testator had no thought of a revocation.

That the presumption of a personal revocation can be thus rebutted is shown by the authorities cited by the appellees. The presumption of revocation arises from the fact that the will was known to be in the possession of the testator himself, and that it cannot be found after his death. It is, therefore, a natural presumption merely, because it cannot be supposed the testator would part with it, unless he intended to put it out of the way, and because it is out of the way and cannot be accounted for, the presumption that he intended to revoke it arises. Like other natural presumptions drawn from evidence, and not declared de jure, for some legal end, it must give way to stronger evidence of the continued existence of the will, and the testator’s reliance upon it as the disposition he had made of his property.

The will then being in existence at the death of the testator unrevoked by him, its loss or accidental destruction differs not from the loss or destruction of any other solemn instrument, such as a deed, a note or bond, or a record. The contents, therefore, may be proved in like manner, as shown by the authorities cited. It is a postulate of the question that the testator left behind him at death, a last will in writing, legally executed and published; and unrevoked by any act or direction of his. That the law will not tolerate any making of a will for him by other means than his own act in writing duly executed, is clear. But such a will having a legal existence, yet accidentally lost or destroyed, the establishment of its contents is not the making of a new will, but a restoration merely of that which the testator himself made and left behind him to govern his estate. There is no greater sanctity, in this respect, than the restoration by parol evidence of other instruments equally solemn and having an equal effect in the disposition of property. The law simply comes in aid of his own legally performed act, to prevent his intentions from being frustrated or defrauded. The authorities upon the republication of wills, made before the passage of the Act of 1883, have a bearing and may therefore be cited — some not appearing in the paper-books: Havard v. Davis, 2 Binn. 406; Jones v. Hartley, 2 Whart. 103, citing many cases; Campbell v. Jamison, 8 Barr 498 ; Jack v. Shoenberger, 10 Harris 416; Fransen’s Will, 2 Casey 203. We cannot perceive that the learned judge erred in ruling either point.

In regard to the right to an issue there is no difficulty. True, the right to a jury trial is given in the 41st section of the Act of 15th March 1832, relating to registers and registers’ courts, whenever a dispute upon a matter of fact arises before any register’s court; but the request for it must come in due time. Here no request was made, but the case was submitted to the judge of the Orphans’ Court, was fully argued, and the papers were in his possession for an opinion and decree. On application for a re-argument he permitted it. But he did not re-open the case for all purposes. If, under the pretext of a request for a re-argument, it was intended to cover up an intention to force an issue and thus delay a cause already fully submitted to a competent tribunal, it was not such a request as the court was bound to regard. It was in the sound discretion of the court then to allow an issue or not. There was no abuse of its power in his refusal.

We discover no other matter worthy of serious notice.

The decree of the Orphans’ Court is therefore affirmed, and the appeal of the appellants dismissed at their costs, which they are ordered to pay. .