author: Per Curiam :

text:
    NORTHAMPTON COUNTY.
    January Term, 1884,
    No. 29.
    March 4, 1884.
    Osterstock et al. v. Sigman et al.

    A deed of separation between G. S. and his wife, contained, inter alia, the following covenants by him:
    “Nor shall or will, at any time hereafter, during the said coverture, or at her death, challenge, claim, or demand any right, title, or interest in any lands, tenements, or hereditaments of which she now is or shall or may hereafter be seized or possessed, nor any effects or personal estate, which by the present articles are made over or secured to the said Sarah for her use, or which, at any time hereafter, she shall get, acquire, or be possessed of, or which shall be given, devised, or bequeathed to her during her life by any of her relations or friends, or which she may obtain by her own industry; but that she shall and may peaceably and quietly have, hold, possess, use, and enjoy the same to and for her sole and separate use and benefit, notwithstanding her present coverture, and as if she were a femme sole, and may sell, assign, and transfer, and grant the same during her life at her absolute will and pleasure, and shall and may, at her own discretion, and as she shall think fit by her last will and testament, give, devise, and bequeath, grant, and dispose of the same or any part or parcel thereof to such person or persons as she shall think fit. And the said G. S., for himself, his heirs, executors, and administrators, doth, in consideration of the premises aforesaid, and in consideration also that the said Sarah shall, at all times hereafter, have a suitable provision and maintenance covenant with the said J- A., that the said Sarah shall, from henceforth, have, hold, occupy, possess, and enjoy the one equal undivided half part, the whole into two equal parts to be divided in quantity and quality as nearly as may be of the plantation and tract of land on which the said G. S. now lives, and in further confirmation thereof the said G. S. doth, by these presents, grant the said half part to the aforesaid J. A., his heirs and assigns forever. In trust, nevertheless, to and for the sole and separate use of the said Sarah.”

      Held, that the above deed gave to the wife of the said G. S. a life estate, and not a fee in the part 'of the plantation conveyed in trust for her, and that upon her death it reverted to the grantor and his heirs.
    Before Mercur, O. J. ; Gordon, Paxson, Trunicey, Sterrett, Green, and Clark, JJ.;
    Error to the Court of Common Pleas of Northampton County.

    Ejectment by William Sigman and Jacob Herster, and Susannah, his wife, against Reuben Osterstock, and Sarah Osterstock, to recover the one half part of a farm of one hundred and seventy-five acres, in Forks township, formerly the property of George Sickman.
    The case was tried by agreement filed, without a jury, before Schuyler, J., whose findings of fact and law are as follows:
    ‘£ The land in controversy was formerly part of a farm of about one hundred and seventy-five acres, owned by George Sickman, husband of Sarah Sickman, by whom he had three children, viz: William Sigman, Susanna, wife of Jacob Hers ter, and Mary, widow of James Nelson, the said William Sigman and Susanna Herster being the plaintiffs in this suit. On the 16th day of October, A. D. 1821, the said George and Sarah Sickman, and one Jacob Ackerman, as trustee for said Sarah, entered into written articles of separation, which are made a part of this finding. [The material portions of these articles are as follows:]
    ‘ Whereas, Divers unhappy differences and discontents have unfortunately arisen, and for some time past subsisted between the said George Sickman and his said wife, which have proceeded to such extremity that it is found impossible for the said parties to live and cohabit together with any expectation of comfort and happiness hereafter ;

      And whereas, There is no reasonable hope that the differences and discontents aforesaid can be so far reconciled that the said parties can hereafter live and cohabit together in that spirit of amity and concord which 4s essential to their mutual happiness and well doing, and the said George Sickman and Sarah, his wife, have therefore agreed from henceforth for and during their respective natural lives to live separate and apart from each other on terms hereinafter mentioned, the assent of the said Sarah to all which terms is manifested by her becoming a party to these presents :
    Now this indenture witnesset.h that the said George Sickman for himself, his heirs, executors, and administrators, in pursuance of said agreement doth hereby covenant, promise, and agree to, and with I he said Jacob Ackerman, his executors, administrators, and assigns, in manner following, that is to say, that he, the said George Sick-man, shall and will, from henceforth, during his natural life, live separate and apart from his said wife the said Sarah, and shall not and will not, at any time hereafter, cohabit, abide, or dwell with her as his wife, nor use or frequent lier company otherwise than he may or might lawfully do with a stranger, and shall not and will not visit her, nor intrude upon her, nor demand admittance to her without her free permission and consent first had and obtained. And further, that it shall and may be lawful for the said Sarah from henceforth, for and during her natural life, to live separate and. apart from her said husband. And that he, thd said George Sickman, shall and will from henceforth permit and suffer her, the said Sarah, from time to time, and at,all times hereafter during her present coverture, to go, reside, and dwell separate and apart from him as aforesaid, in such place and places, house and houses, family and families, either by herself or with such relations or friends as she,, the said Sarah, shall, from-time to time, at her will and pleasure, and notwithstanding the present coverture, and as if she were a femme sole think fit, without any let, hindrance, disturbance, molestation, or interruption of him, the said George Sickman,. or of any other person or persons by his procurement or permission, by day or by night, and thatr he will not, at any time hereafter,, sue forth any writ of habeas corpus or any other process for her person, nor compel or require her to cohabit with him, nor sue, molest, disturb, or trouble her for living separate and apart from him as aforesaid, nor any other person or persons whomsoever' with whom she may reside, or who may reside with her, nor shall or will, at any time hereafter during the said coverture, or at her death, challenge, claim, or demand any right, title, or interest in any lands, tenements, or hereditaments of which she now is or shall or may hereafter be seized or possessed, nor ffny moneys, bonds, obligations, notes, goods, chattels, wearing apparel, furniture, household stuff, beds, bedding, or other effects or personal estate of what nature or kind soever, which, by these present articles, are made over or secured to the said Sarah for her use, or which at any time hereafter she shall get, acquire, or be possessed of, or which shall be given, devised, or bequeathed to her during her life by any of her relations or friends, or which she may obtain by her own industry ; but that she shall and may peaceably and quietly have, hold, possess, use, and enjoy the same to and for her sole and separate use and benefit, notwithstanding her present coverture, and as if she were a femme sole, and may sell, assign, and transfer, and grant the same during her life at her absolute will and pleasure, and shall, may, at her own discretion, and as she shall think fit by her last will and testament in writing, or by any writing duly executed in tbe presence of two witnesses in the nature of a last will and testament give, devise, bequeath, grant, and dispose of the same or of any part or parcel thereof to such person or persons as she shall think fit, notwithstanding her coverture or whether she be covert or sole without any let, suit, hindrance, trouble, interruption, or disturbance whatsoever of or by him, the said George Sickman, his executors or administrators, or of or by any other person or persons whomsoever lawfully claiming or to claim by, from, or under, him, and freed and discharged of and from all debts and engagements by him, the said George Sickman, heretofore contracted, or which he may or shall at any time hereafter contract, (except as hereaftei- excepted ) And the said George Sickman for himself, his heirs, executors, and administrators doth, in consideration of the premises aforesaid, and in consideration also that the said Sarah shall, at all times hereafter, have a suitable provision and maintenance, covenant, grant, and agree to, and with the said Jacob Ackerman, his executors, administrators, and assigns, by these presents that the said Sarah shall,from henceforth, have, hold, occupy, possess, and enjoy the one equal, undivided half part, the whole into two equal parts to be divided in quantity and quality as nearly as may be of the plantation and tract of land on which the said George Sickman now lives, the whole containing about one hundred and seventy-five acres, be the same more or less, freed and discharged from all dower or thirds of Barbara Sickman, the widow of Dietrich Sickman, deceased, or of any other person or persons whatsoever claiming or to claim any right or title of dower or any other right or title of, in, to, or out of the same, and in further confirmation thereof the said George Sickman doth, by these presents, grant, bargain, and sell, alien, enfeoff, release, and confirm, and by this present indenture hath granted, bargained, and sold, aliened, enfeoffed, released, and confirmed the aforesaid equal undivided half part of the plantation aforesaid, to be hereafter divided by a division line to be run from the line of said plantation on the Chestnut hill a northerly course to the line dividing the. said plantation from the land of John Nicholas Werkheiser, so as to include the full half part of said one hundred and seventy-five acres, more or less, (he, the said George Sickman, reserving to himself, nevertheless, that part on which the buildings are erected,) to said Jacob Ackerman, his heirs and assigns, to have and to hold the aforesaid one equal undivided half part of the plantation or tract of land aforesaid, the whole into two equal parts in quantity and quality to be divided, (except as before-excepted,) to the aforesaid Jacob Ackerman, his heirs and assigns forever. In trust, nevertheless, to and for the sole and separate use of the said Sarah, the wife of the said George Sickman, as aforesaid, and the said George Sickman doth also agree that the said Sarah shall have the free liberty and privilege to take and use as much water out of the well now on that part of the plantation reserved by the said George as aforesaid as she may think necessary and expedient for heru.se, and for that purpose to pass and repass to and from the said well over the land of the said George, without any molestation or interruption by the said George, or by any other person or persons whatsoever. And the said George Sickman doth further agree as aforesaid, that the said Sarah shall have and keep all her wearing apparel of which she is now possessed, and also all the personal property, beds, and household furniture which she brought to him at the time of her marriage, or which has been since purchased with her money, and also that she shall have one hog of those now in the pen, part of the potatoes and cabbage now in the ground, and further, that the said Sarah shall keep the children born of the said marriage, and bring them up and maintain and educate them as she may think right and proper. And the said George Sickman doth further covenant, grant, and agree, as aforesaid, that he, the said George Sickman, his heirs, executors, and administrators shall and will, from time to time, and at all times hereafter well and sufficiently save, defend, and keep harmless as well the said Jacob Ackerman, his executors, and administrators, and Sarah, the wife of the said George, as all and every the wearing apparel, moneys, bonds, obligations, notes, goods, chattels, furniture, household stuff, beds, bedding, and other effects and personal estate of what nature or kind soever, and the lands, tenements, and hereditaments which either in virtue of the present articles are given and made over to and for the use of the said Sarah, or which she shall at any time hereafter get, -acquire, obtain, or in a.ny manner or by any right be seized or possessed of as aforesaid, or which she or any other person in her right or to her use may or can hereafter claim, challenge, or demand, and of atrd from all debts, dues, obligations, contracts, and engagements of what nature soever heretofore contracted by the said George Sickman, or which, at any time hereafter, he may contract, except the one half of the debts contracted by the said George, prior to the ninth day of February, in the year of our Lord one thousand eight hundred and twenty-one, which the said Sarah is to pay, and of and from all and all manner of action or actions, suits, arrests, attachments, distresses, processes, judgments, seizures, recognizances, liens, and executions had done, suffered, sued forth, recovered or obtained, or hereafter to be had, done, suffered, sued forth, recovered, and obtained by reason of the debts, dues, contracts, and engagements or any of them of the said George Sickman contracted or to be contracted as aforesaid, or by any default of him, the said George Sickman, or by his acts, means, consent, or procurement, (except as before excepted,) and that he, the said George Sickman, will not, on the decease of the said Sarah, claim or take administration of her goods and chattels, rights, or credits, or in any manner disturb or prevent her disposition thereof, or in case of her intestacy prevent or disturb the transmission and succession thereof to her personal representatives. And the said Jacob Ackerman, for himself, his heirs, executors, and administrators, in consideration of the premises, doth covenant, promise, grant, and agree to and with the said George Sickman, his executors, administrators, and assigns, by these presents upon the delivery, by the said George, of the wearing apparel, household furniture, and personal estate aforesaid, ánd the possession of the equal undivided half part of the plantation or real estate aforesaid into the hands of the said Jacob, to and for the sole and separate use of the said Sarah, the wife of the said George as aforesaid, the said Sarah shall and will pay and satisfy the one half of the debts contracted by the said George prior to the ninth day of February, one thousand eight hundred and twenty-one, and that she, the said Sarah, shall not and will not, at any time hereafter, claim from the said George Sickman any alimony or any allowance in the nature of alimony ; and that the said Sarah will not any time during her natural life claim or demand from the said George any further or other provision in money or otherwise for her maintenance and support in health or in sickness, nor at the death of the said George challenge, claim, or demand any dower or thirds in or out of his estate, real or personal, of which he shall die .seized or possessed. And further, the said Jacob Ackerman covenants, promises, and agrees as aforesaid, that he will, well and truly, from time to time and at all times hereafter, indemnify and save harmless the said George Sickman, his heirs, executors, and administrators of, and from all debts, dues, obligations, and engagements which the said Sarah shall or may hereafter contract during the separation aforesaid, and of and from all costs, charges, and expenses whatsoever for or by reason of the maintenance and support of the said Sarah during the said separation in health and sickness, and of and from all suits, actions, and demands, and all prosecutions, claims, and controversies as well by and at the instance of the said Sarah, as by all and every other person or persons whomsoever lawfully claiming or to claim for any charge or expense for the maintenance and support of the said Sarah daring the said separation, or for or by reason of any quarrels, disputes, injuries, or complaints which have heretofore been done, had, or arisen between the said George Sickman and Sarah, his wife, to the day of the date of these presents, and of and from all claim and demand of dower or thirds by his said wife ,out of his estate, real or personal, of which he may or shall die seized or possessed for or by reason of the coverture aforesaid.”
    After this date, the said George and Sarah lived separate and apart from each other, and on the 26th day of May, A. I). 1824, the said Sarah, the said George being-still living, married Jacob Osterstoek, by whom she had three children, viz : the defendants and one other. George Sickman died about the year 1870 ; Sarah, his wife, died April 16, 1882 ; and the said Jacob Osterstoek died July 12, 1872, George Sickman died in the poor-house, of which he had been an inmate some four or five years prior to his death. Sarah Sickman, alias Osterstoek, left a will, a copy of which is made part hereof.
    [In this will, the testatrix directs her executor to sell the land derived from George Sickman, and after paying debts and certain legacies, to divide the remaining proceeds equally among her children, the progency of Sick-man and Osterstoek.]
    ' At the time the present writ was served upon them, the defendants were, and still are, in possession of the land in controversy, claiming the same as devisees of the said Sarah Sickman, alias Osterstoek, who, they contend, took said- land in fee, under the articles of separation aforesaid.
    George Sickman convej’ed the half of the farm, retained by him under the articles of separation, to John Sigman by deed dated December 4, 1824. and recorded in deed book A, vol. 5, p. 279, which deed was received in evidence. Sarah Sickman, alias Osterstoek, also gave a deed jointly with the said Jacob Osterstock and the said Jacob Ackerman, for some seven acres of the other half of said farm mentioned in said articles, to Sarah Osterstock, which deed was also given in evidence.

      Second. ’Upon the foregoing facts, we reach the conclusion that Sarah Sickman took but an estate for life in the one half of the farm set aside for her use in the articles of separation. Not only are there no words of limitation over to her heirs, but the language of the articles is such as to leave no room for an implication that the creation of a fee was intended. The purpose of the conveyance to her is expressly declared to be “that the said Sarah shall at all times hereafter have a suitable provision and maintenance,” in consideration of which it. is declared “ that the said Sarah shall from henceforth have,hold,occupy,possess, andenjoy” the premises. Then follows the conveyance to the trustees, “in trust for the sole and separate use of the said Sarah ” without more. True, the conveyance of the legal title is to “ Jacob Ackerman, his heirs, and assigns” in trust, etc., but this signifies nothing, for it matters not what may be the nominal duration of an estate given to a trustee, it continues in equity no longer than the thing sought to be secured by the trust demands: Koenig’s Appeal, 7 P. F. S., 355. See also Perry on Trusts, § 312, cases there cited.
    At the trial, the learned counsel for the defendants argued with much earnestness that an absolute power of disposition over the land in controversy was given to Sarah Sickman, and that this enlarged her estate into a fee. We think, however, that the whole of this part of the very ingenious and able argument of the learned counsel of the defendants is based upon a misreading of the articles of separation. The power to sell created by the articles does not, as we think, refer to the land in controversy at all. George Sickman, having released all his right, title, and interest in and to any lands, tenements, or hereditaments, of which his wife was then, or might thereafter be, seized or possessed, and in and to all her personal property of every kind whatsoever, “which by these articles are made over or secured to her,” or which at any time thereafter she might acquire, grants to her the absolute power to dispose of “the same.” This is the power referred to -by the learned counsel for the defendants upon which he bases his argument. But manifestly the words “ the same” as here used, refer, so far as the real estate is concerned, to such lands, tenements, and hereditaments only as Mrs. Sickman was seized or possessed of at the time the articles of separation were signed, or such as' she might acquire afterwards. The land in controversy belonged to neither category. Whatever title she acquired in these she acquired by and under the articles. It will not do to say that such a construction savors too much of refinement. The distinction is palpable, and was recognized by the parties; for, in dealifig with the personal property, as has been seen, the articles of separation include in express terms property “which by these articles are made over or secured to the said Sarah.” That both George and Sarah Sickman seemed to regard the latter’s title as absolute after their separation, is a circumstance which we do not feel at liberty to take into consideration, and without further elaboration we record our decision in favor of the plaintiffs.”
    Exceptions were filed by the defendants, which, on hearing, were dismissed by the Court, and judgment entered for the plaintiffs.
    The defendants thereupon took this writ, assigning for error, inter alia, the action of the court in holding that Sarah Sickman took but an estate for life.

      F. H. Lehr and W. S. Kirlcpatriclc for plaintiffs' in error.
    The deed from George Sickman gives to Sarah Sickman an estate with power to convey or to devise the land in controversy : Jarman on Wills, Yol. II, page, 273 ; Cruise on Real Property, 148, § 14 ; Drusadow ®. Wide, 13 Sm., 17Ó ; Edwards v. Bailey, Cowp., 600.-
    This deed can only mean that his wife Sarah shall have the power to sell or to devise the land in controversy. It was the only land that she could be empowered to sell or devise by this instrument. She had in fact no land at the time of signing of this instrument other than the half of the farm given to her by it, and if she had had other land, he could not empower her either to sell, convey, or to devise any lands she might have possessed before the signing in this way, because it was not included in the conveyance to the trustee therein named ; the only way he could empower her to devise or sell land without hindrance from him was, as he did, by assigning the same to a trustee, and at the same time empowering her either to devise as she saw fit, and at the same time sell or convey the same as though she were a femme sole.

    The married woman’s act of 1848 had not yet then been passed. Had he conveyed the property in question to Jacob Ackerman, the trustee in fee to the use of his wife Sarah and her heirs, the statute of uses would have executed the use, and would have passed to the wife the entire estate in fee simple. *
    This would have clearly defeated the very purpose over and over again expressed in the instrument, for had the entire estate thus vested in the wife, she could not have made any conveyance of the fee or lesser estate without the joinder of her husband, nor could she have made any devise thereof.
    Is this, therefore, an estate in the wife for life only ? It is certainly more. It was the intention of the grantor either to give a fee, or, what would be still better, a full enjoyment of the land with power to dispose of the same without any restraint or condition.
    Had he intended to give her simply a life estate without anything more, it would have been easy to say so. In few and simple words it would have been stated to be for life, with remainder to his own use.
    But it will be noticed that he omits the words for life, and gives her an' estate in the land freed and discharged from any person whatever claiming any right or title of, to, or in the same.

      Edward J. Fox and Edward J. Fox, Jr., for defendants in error.
    The decision of the question arising in this case by the court below is in accordance with elementary principles as well as an unbroken current of decisions: Doe v. Nicholls, IB. & C., 336 ; Doe v. Simpson, 5 East, 162 ; Adams ». Adams, 6 Ad. & E. N. S, 860 ; McBride v. Smyth, 4 Sm., 249 ; Koenig’s App., 7 Sm., 355; Perry on Trusts, § 312.
    At the death of Mrs. Sickman, there being no creation of a remainder by the deed and the trust estate being ended, the estate in the land reverted to the grantor, if living, or to his heirs at law if be died intestate : Story’s Eg. Juris., § 1196a ; McElroy v. McElroy, 113 Mass., 511; Parks ■». Parks, 9 Paige, 110.
    It is contended that the deed actually vested an estate in fee simple in Sarah Sickman, and the ai’gument is based upon certain clauses in the deed which are covenants between the parties and which precede that portion of the deed, which conveys the land in question to the trustee, “nor will * * claim any right, title, or interest in any lands, tenements, or hereditaments of which she now is, or shall,, or may hereafter be seized or possessed.”
    It will be impossible to reconcile this construction with that part of the deed in which the grantor conveys to the trustee and defines the.trust. Before the delivery of the deed she certainly had no estate in the land beyond a right of dower, and, therefore, the words “of which she is now seized or possessed” could not relate to this land.

      Mo instante the deed was delivered, she was possessed of whatever estate o.r interest in the land that the deed conveyed to her. Therefore, the words in the deed “any lands, tenements, or hereditaments of which she shall or may hereafter be seized or possessed,” cannot relate to this land. “Hereafter” refers to future time. If the grantor desired to refer to this land, and to covenants to make no claim hereafter to it, the words “either by this deed or otherwise” or words of like import, have been inserted after the word “possessed” in the second line from the bottom of page 2 of appendix. It is manifest that the grantor did not refer to the land conveyed by this deed, because, in the next clause of the same sentence, where he speaks of the personal property and covenants ‘ ‘ that he will not claim or demand any title or interest therein,” he speaks of it “which by these present articles are made over or secured to the said Sarah for her use, or which at any time hereafter she shall yet acquire,” &c.

    Where the grantor reaches that part of the deed in which he conveys this land, he recites that “in consideration also, that the said Sarah shall at all times hereafter have a suitable provision and maintenance,” “he doth covenant, &c.,” “that the said Sarah shall from henceforth have, hold, occupy, possess, and enjoy the one equal undivided half part,” &c. The habendum et tenendum is to Jacob Ackerman, his heirs, and assigns “in trust, nevertheless, to and for the sole and separate use of the said Sarah, the wife of the said George Sickman, as aforesaid.”
    It is plain from the whole instrument that it was to provide for the maintenance and support of the wife during her life. The estate was in the trustee during Sarah’s life, and at her death it reverted to the grantor and his heirs by operation of law.
    March 24th, 1884.
   Per Curiam :

A careful examina_ tion of the deed executed by George Sickman convinces us that it gave to his wife a life estate only in the land in question. The personal property thereby transferred to her is given absolutely, and he agrees that she may,without any hindrance from him, use and dispose of any property she then owns or may thereafter acquire, as if she was a femme sole. As to the land of which he gives her the use, he not only omits words of inheritance, but carefully avoids using any language evincing an intention to vest a fee in her. The main purpose of the agreement was to furnish her during life a separate support and maintenance as his wife-. No divorce was provided for. It is evident that none was intended. As we affirm this judgment on the language of the deed, it is not necessary to decide whether the fact that she afterwards was guilty of bigamy, and for many years persisted in living in adultery, would not have worked a forfeiture of all her rights in the land. It is very clear that an agreement by which husband and wife shall live separately, and he provides for her support, does not contemplate that she shall give birth to a brood of illegitimate children to deprive his lawful children of their just inheritance.

There is no error in the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Gbeen, J.:

license: Public Domain

text:
    January Term, 1884,
    No. 369.
    March 12, 1884.
    The Susquehanna Mutual Fire Insurance Company v. Staats. Appeal of The Susquehanna Mutual Fire Insurance Company.
    1. Where the by-laws of a mutual insurance company provide that whenever an assessment is levied, notice shall be given to the policy holder of the amount due and the time of payment, the absence of notices of assessments is fatal to an action for their recovery.
    2. A foreign attachment issued for the purpose of recovering the assessment is not a substitute for the notice.
    Before Merottr, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Northampton County.

    Amicable action in assumpsit by The Susquehanna Mutual Fire Insurance Company against John H. Staats.
    Also a certiorari to the court of common pleas of Northampton county on appeal from the decree of the court distributing the fund paid into court under a ft. fa. issued by John H. Staats to use of Edward J. Fox against The Susquehanna Mutual Fire Insurance Company.

      The parties to the amicable action filed an agreement in writing, submitting said action to the decision of the court, and dispensing with a trial by jury under act 22d April, 1874, § 1 and 2.
    The court below, Meyers, P. J., found, inter alia, the following facts:
    The property of John H. Staats was insured in the Susquehanna Mutual Fire Insurance Company by a jjolicy of insurance running for five years from October 2,1876. He signed and delivered, at the time of his application, a premium note, as follows:
    “$1,237 50. For value received in policy, No. ■-■, issued by the Susquehanna Mutual Fire Insurance Company, I promise to pay to said company, for the time being, the sum of $1,237 50 in such portions and at such times as the directors of said company may, agreeably to the act of Assembly governing insurance companies, with the various supplements thereto, and the by-laws of the company, require.
    “ Dated the 30th day of September, 1876.
    “John H. Staats.
    “Witness: Hugh Williams.”
    On April 16,1877, the property so insured was destroyed by fire, and recovery on the policy was resisted by the company on the ground of false warranties, over-valuation, and the failure to furnish particulars of loss. Judgment was, however, recovered against the company in the court below on July 6, 1882, for $2,534 45, and was affirmed in the Supreme Court March 28, 1883.
    Upon the premium note given by Staats, the company levied ten assessments for losses occurring during the term of the policy, beginning July 13, 1877, and ending December 3, 1884, amounting to $1,159 12.
    To recover the amount of these assessments, a writ of foreign attachment at the suit of the insurance company against Staats was issued out of the court of common pleas of Dauphin county on April 27,1883,_andthe money due upon Staats’ judgment was attached in the hands of the said company, whose principal office is at Harrisburg.
    On September 11,1883, the said insurance company presented a petition to the court, setting forth the recovery of judgment by Staats against the company, the issuing of the writ of foreign attachment, and the service on the company as garnishee, and the issuing of a fi. fa. by Staats on his judgment. Whereupon, the Court ordered the sheriff to continue the sale under the fi. fa. to October 6, 1883, and gave the company leave, at or before that time, to pay into court the amount of the damages and costs called for by said ft. fa., and in default thereof, the sale to proceed ; and that if the money should be paid into court, the same should be subject to the order of the court.
    October 3, 1883, the company paid into court $2,788 58, there to abide the further orders of the Court for distribution. The Court ordered that the fi. fa. be stayed; that the disputed question under -the attachment be first disposed of; and that the money be awarded and divided as thereafter decreed.
    The by-laws of the company provided that “whenever an assessment has been levied, the secretary shall, as soon as practicable, give written or printed notice to each and every policy-holder, by mail or otherwise, advising him, her, or them of the amount due by them, and the time when payment mnst be made.”
    “That the secretary shall make and collect all assessments, and fix a day certain, on or before which all assessments mnst be paid, if the policy shall remain valid.”
    No day was fixed by the secretary on or before which the several assessments against Staats must be paid, and no written or printed notice was given as required by the by-laws.
    The opinion of the Court upon these facts was as follows :

      First. “The Court having found as a fact that an assessment having been duly made by the corporation plaintiff on the premium note of the defendant for losses which occurred during the term of the policy of insurance No. 1016, issued by the said corporation plaintiff to defendant, the fact that said assessments were made after the destruction of defendant’s building by fire would not in itself defeat the plaintiff from recovering in this action.”

      Second. [“The Court having found as a fact that no notice was given to the defendant, as required by the fifth paragraph of the thirty-first section of the by-laws of the corporation plaintiff, of the assessments which had been levied on defendant’s premium note, and set forth in paragraph eight aforesaid ; the amount due by the defendant, and the time payment must be made ; there is no liability on the part Of the defendant to pay said assessment, and consequently no right of action was in the corporation plaintiff to recover the amount of said assessments at the time the aforesaid amicable ■ action was entered into, or when the said corporation plaintiff issued its writ of foreign attachment against the defendant, and the corporation plaintiff as garnishee in the court of common pleas of Dauphin county.”]

      Third. [“The Court having found as a fact that some of the defenses set up on the trial of the action No. 28, February term, 1878, brought by the defendant against the corporation on the policy of insurance No. 1016- to recover damages for loss by fire, were that said policy of insurance had been forfeited and was void, on the grounds set forth in paragraph thirteen aforesaid, the corporation plaintiff is estopped from 'alleging in this action that the said contract of insurance was valid and binding, and it could not afterwards legally assess the defendant for losses while repudiating the contract of insurance.”]

      Fourth. [“The Court having found as a fact that the property of the defendant, on which the building insured by the corporation plaintiff was erected and destroyed by fire, was levied on and taken into possession and custody under a proceeding in a court of law, sold by the sheriff, and a deed poll executed and delivered to the purchaser, the said insurance ceased under the policy of insurance No. 1016, at and from the time of such levy, &c., and the corporation plaintiff had no legal right thereafter to levy assessments for losses which occurred afterwards on defendant’s premium note.”]

      Fifth. [“That in this action the corporation plaintiff has not the right to retain out of the moneys in its possession for damages sustained by the defendant for losses by fire, under his policy of insurance, No. 1016, any assessment' made by the corporation plaintiff on the premium notes of the defendant, under and by virtue of the thirty-fourth section of the by-laws of said corporation, and set forth in paragraph No. 5 aforesaid, and more especially by reason of the fact that no notice of such assessment was given to the defendant, the amount due by the defendant, and the time payment must be made, and so found by the Court as a fact.”]

      Sixth. [“That the attachment issued out of the court of common pleas of Dauphin county, April 27, 1883, of which the defendant had notice before suit, is not a sufficient notice to the defendant of such assessment, required by the fifth paragraph of the thirty-first section of the corporation plaintiff.”]

      Seve?ith. The question whether James Stackhouse, on his foreign attachment issued out of the court of common pleas of Dauphin county, is entitled to any part of the damages attached as the property of the defendant in the hands of the corporation plaintiff as garnishee, is not now before the court, said claim of Stackhouse having been adjusted, as stated by counsel on the hearing of this case.

      Eighth. That the plaintiff is not entitled to recover on the facts found by the court.”
    Plaintiff’s counsel fil9d nine exceptions to the above findings of law and fact.
    February 23, 1884, judgment for defendant.
    The plaintiff then took out a writ of error, and assigned as error those portions of the opinion of the Court inclosed between* brackets and the entry of judgment for the defendant.
    The money having been paid into court as above stated, the insurance company filed a petition claiming “to have distributed to it out of the fund in court the sum of $1,159 12, being the amount of assessments levied upon the premium note of said plaintiff, for losses occurring in said company during the term of defendant’s policy, and to which said defendant is entitled by virtue of a lien, under the provisions of the by-laws of said insur,7 anee company, being conducted on the mutual plan.”
    The parties in interest, by uniting filed, agreed that the distribution of the fund in court should be made by the court without the intervention of an auditor, and that the testimony taken before the Court in the amicable action should be considered as having been taken also upon the question of distribution.
    The Court below was of opinion that the Susquehanna ' Mutual Fire Insurance Company are not entitled to any part of the fuAd in court, and awarded the whole fund to John H. Staats.
    The plaintiff then appealed, and assigned as error the refusal of the Court to award to plaintiff the sum of $1,159 12 out of the fund in court.

      Henry W. Scott and W. S. Kirkpatrick for plaintiff in error and appellant.
    The assured contracted with the knowledge that if his property should be destroyed before the expiration of his policy, his note was subject to assessment for his and other losses until the termination of the period of the contract: May on Insurance, s. 533,555; Bangs r. Scidmore, 24 Barb. 29; 21 N. Y., 136 ; Ins. Co. v. Melrose Society, 117 Mass., 199 ; Ins. Co. v. Prossee, 11 Iowa, 115 ; Ins. Co. v. Rand, 4Fost., 428.
    Whenever a lien is created by statute or by charter of incorporation, those dealing with the corporation are bound by it: Rogers ». Bank, 12 S. & R., 77 ; Sewall v.
      Bank, 17 S. & R., 285 ; Grant v. Bank, 15 S. & R., 140; Dock Co. v. Hefon, 2 P. F. Sm., 280. In a mutual insurance company every insured is held to knowledge: Geyer v. Ins. Co., 3 Pitts., 41; Morgan v. Bank, 8 S. & R., 73 ; 1 Am. & Eng., Corp. Cas. 39, 40.' The lien is not lost by parting with the fund under compulsory process to enforce payment: Addison Contr., 1185; Trickett on Liens, s. 756 ; 2 Ken t’s Com., 639 ; Sawyer v. Fisher, 32 Me., 28 ; Aycinena v. Peries, 6 W. & S., 243.
    The attachment issued in Dauphin county, of which the parties had notice before lien was sought to be enforced or amicable action entered, was a sufficient demand. In any event, the want of notice could only be pleaded in abatement: Thornton ». Ins. Co., 7 Casey, 529. The purpose of notice is to give a party the opportunity to pay ; but if his conduct is inconsistent with an effort to comply, he is not entitled to further warning: Com’ tli v. Pittsburgh, 10 Casey, 512 ; Regina v. Kendall, 1 A. & E. (N. S.), 386; 4 B. & Ad., 530; 10 A. & E., 561 ; 7 Wait’s Act. & Def., 368.
    The right to retain the money for assessments is absolute, and notice is necessary.
    • The doctrine of election or estoppel by reason of defense to policy has no application, because, whether avoided or not, the insured contracted to pay his assessments.

      E. J. Eox & Son and E UsJia Allis for defendant in error and appellee.
    The attachment, issued more than eighteen months after the expiration of the policy, cannot amount to notice of assessments as required by the by-laws. After the company has denied liability on the ground that the policy had become void, it cannot recover on the premium note for any losses which occurred after the date of forfeiture: Tuckerman v. Bigler, 46 Barb., 375 ; Rodermund v. Clark, 46 N. Y., 354; Ins. Co. v. Masonheimer, 26 P. F. Sm., 138.
    The company elected to avoid the policy ah initio and is bound by the election: Patterson ®. Swan, 9 S. & R., 16; Cox -b. Cox, 2 Casey, 382; Coke, Littleton, 146 a., Thomas’ Ed.', vol. 1, p. 522.
    The plaintiff has admitted this contract to be one and entire: -2 Pars. Contr., s. 519 ; Friesmuth v. Ins. Co., 10 Cushing, 587; Brown v. Ins. Co., 11 Id., 280; Ass’n v. Williamson, 2 Casey, 196 ; Gottsman v. Ins. Co., 6 P. F. Sm., 210; Birmingham v. Kirwan, 2 Sch. & L., 449; Bigelow on Estoppel, 578-588; Connihan ®. Thompson, 111 Mass., 273 ; Sanger®. Wood, 3 Johns. Ch., 416.
    When notice must precede a snit, the snit cannot be equivalent to notice. The want of notice is an insuperable obstacle to the maintenance of the attachment, and to all other process for their recovery. The insured was entitled to notice of the assessment before suit was brought: 'Buckley ®. Ins. Co., 2 Norris, 299 ; Ins. Co. ®. Hoff, 2 W. N. C., 41; 1 Chitty Pr., 496 ; Com’th ®. Beneficial Inst., 2 S. & B,., 141 ; Com’th r. German Society, 3 Harris, 251; Angelí & Ames, Corp., s. 420-423.
    By payment into court under the execution, all con-, nection between the fund and the claim for assessments was broken : Bean ®. Bolton, 3 Phila., 87-93.

      lies adjudícala, \ Himes ». Jacobs, 1 Penna., 152; Logan o. Caffrey, 6 Casey, 200 ; City ®. West, 7 Wall, 82; Miller. ®. Manice, 6 Hill, 122; Young ®. Black, 7 Cranch, 567 ; Gordinier’s Appeal, 8 Norx-is, 528 ; Brenner ®. Moyer, 2 Out., 274 ; Marsh ®. Pier, 4Rawle, 288.
    This appeal has been taken for malice and delay, and we therefore claim damages upon the former judgments, to be taxed as part of the costs of this suit.
    October 6, 1884,
   the opinion of the Court was delivered by

Gbeen, J.:

We think the absence of notice of assessments to the insured was fatal to the cause of action in this case, and therefore the judgment must be affirmed. The proceeding is adverse. The claim is founded upon a contract, and a recovery by judicial decree must be in accordance with the terms of the obligation sought' to be enforced. The premium note is not an absolute obligation, but only an engagement to pay, in such portions and at such times, as the directors may, agreeably to the acts of Assembly and the by-hiws, require.

The fifth paragraph of section thirty-one of the by-laws provides that, whenever an assessment is levied, the secretary shall give notice to the policy-holder of the amount due and the time of payment. It is plain, therefore, that there is no liability to pay anything, on the part of the insured, until an assessment has been made and notice has been given him of the amount due and the time -when it is to be paid. Nothing of that kind was done in this case, either prior to the attachment or to this suit. As the defendant could not know what amount he was to pay, or at what time, without a notice, the terms of his contract imposed no obligation upon him, and no adverse legal proceeding could be founded upon such an imperfect engagement. He not only violated no duty, but the duty did not exist until the stipulations upon which it was to arise had been complied with. We cannot regard the attachment as a substitute for the notice. It is only another form of judicial proceeding, which is as much in want of a compliance with the preliminary terms of the obligation as is the present suit. As this difficulty is fatal to a right of action, it is not necessary to consider the other matters arising on this record. »

Judgment affirmed.


author: Gordon, J.:

text:
    NORTHUMBERLAND COUNTY.
    July Term, 1883,
    No. 109.
    April 30, 1884.
    Smith v. Savidge.
    1. A testator, by his last will and testament, made the following provision: “ My son Levi is to have $2,000 out of my estate before a distribution is made, and he is to hold all my clothing without charge, and I do appoint my son George as a committee for my son Levi, to take charge of all his money and pay him the interest and so much of the principal that will give him a comfort support, and after his death, of my son Levi, then all his estate shall be equal divided between all his children. * * * My son Charles shall not have his share in his hands unless he doth absolutely reform of his evil habits. If he don’t, then my executors shall petition to court, appoint a suitable person as a committee to take charge of his money in trust and pay him the interest and so much of the principal that he may need for his support.” Held, that neither the principal nor interest of the bequest to Levi was liable to attachment by his creditors.
    2. The use of the word “ committee,” in the succeeding clause in the sense in which it is used in the acts of Assembly, leaves no doubt as to the intention of the testator when using it in the bequest to Levi.
    3. The interest was not to go to the donee absolutely, but to be appropriated to his support.
    4. Park v. Matthews, 12 Casey, 28, and Trust Co. v. Chambers, 10 Wr., 485, distinguished.
    Before Gordon, Paxson, Trunkey, Stereett, and Green, JJ.; Merour, C. J., and Clark, J., absent.
    Error to the Court of Common Pleas of Northumberland County.

    Attachment sur judgment by William Savidge against Levi Smith, with notice to George W. Smith, trustee under the will of John Smith, deceased, garnishee.
    Rule to show cause why judgment should not be opened and George W. Smith, testamentary committee of Levi Smith, let into a defense, and why the attachment execution should not be set aside.and judgment and execution thereon be restrained.
    Rule on garnishee to show cause why judgment should not be entered against him for the amount of judgment, interest, and costs.
    Interrogatories and answers were filed, and the above rules taken.
    Depositions were taken under these rules, from which the following facts appear :
    John Smith died on April 23, 1877, leaving a will, which was duly probated, in which he directed, inter alia:

    “My son Levi is to have two thousand dollars out of my estate before a distribution is made, and he is to hold all my clothing without charge, and I do appoint my son George as a committee for my son Levi, to take charge of all his money and pay him the interest and so much of the principal that will give him a comfort support, and after his death, of my son Levi, then all his estate shall be equal divided between all his children, and the balance of all my estate shall be equal divided between all my children. My son Charles shall not have his share in his hands unless he doth absolutely reform of his evil habits. If he don’t, then my executo/s shall petition to the Court, appoint a suitable person as a committee to take charge of his money in trust, and pay him the interest and so much of the principal that he may need for his support, and after his death, then his children shall have her share of my estate.”
    George W. Smith accepted the trust for his brother Levi under this will, and received from the executors the sum of $2,785 50, $1,730 of which was in two notes. About two years interest had been paid on the two notes. The amount expended was $1,165 03.
    In 1874, Levi Smith hád purchased from the plaintiff goods amounting to $130 08, which, with' interest to August 25, 1880, amounted to $167 11, and for this amount, on August 25, 1880, he signed a judgment note in favor of plaintiff, payable one day after date, and waiving exemption and bankrupt laws, &c. This judgment note was filed October 18, 1882, and the above-mentioned attachment issued thereon.
    There was testimony on the part of the garnishee to show that Levi Smith was of weak or unsound mind at the time of purchasing the goods and at the time he signed the judgment note. This was contradicted by the testimony of plaintiffs witnesses.
    The garnishee offered in evidence an inquisition in lunacy, dated February 5, 1883, in which it was found that “Levi Smith is, at the time of the taking of this inquisition, a lunatic, and has been so for the space of forty years last past, and does not enjoy lucid intervals.”
    On February 7, 1883, 'this finding was traversed, and the case ordered down for trial.
    The court below, Rockefelleb, P. J., discharged the rule to open the judgment and set aside the attachment, &c., and gave judgment for the plaintiff for the amount of interest in the hands of the garnishee, or so much thereof as will pay his judgment, interest, and costs.
    Counsel for garnishee excepted to the findings of the court.
    The garnishee then took out a writ of error, assigning as error the discharge of the rule to open judgment and set aside attachment; the making absolute the rule for judgment against garnishee; the decision that interest can be separated from the principal and attached in the hands of garnishee by creditors of defendant, and the granting of judgment against garnishee to be paid out of the interest in his hands.

      A. B. Hower and Franlclin Bound for plaintiff in error.
    The defendant, being a lunatic, could not contract and give this note, and the committee has the right to defepd. By the will, testator treated .his son as a lunatic by using the word “committee.” The estate was to be held and used in the sole discretion of the committee, and beyond the control of the beneficiary. The intent or' the testator must be the governing consideration.
    The words “ to take charge of all his money,” include both principal and interest. The purpose was one and indivisible.
    In the cases 'relied'upon by defendant in error, there wras no discretion left in the trustee, and there was no committee; but the interest absolutely belonged to the cestui que trust: Shankland’s Appeal, 11 Wr., 113.
    Where the income .is payable to the legatee at the discretion of the trustee, it is not liable to attachment under a judgment'against the legatee: Keyser ¶. Mitchell, 17 P. F. Sm,, 473.
    The intention of the testator was to place the fund beyond the disposition or control of his son.

      M IT. Painter for defendant in error.
    . A lunatic is liable on his contracts, in the absence of any finding of lunacy at the time, for necessaries furnished him in proper amount, at legitimate prices, and without any fraud practiced upon him or advantage taken of his mental unsoundness : La Rue ®. Gilkyson, 4 Barr, 375 ; 2 Green, Ev. 295 ; Chi tty on Contr., 108, 112 ; Story on Contr:, 23, 45 ; Stock on Non Compos., 25, 30 ; 5 Wh., 379; Beales ®. See, 10 Barr, 56; Wirebacli ®. Bank, 1 Out., 549 ; 1 Parsons on Contr., 385; Bank ®. McCoy, 19 P. F. Sm., 204; Baxter ®. Portsmouth, 2 C. & P., 178; Cook ®. Parker, 4 Phila., 267; Dane ®. Kirkwall, 8 C. & P., 679 ; 37 Leg. Int., 504; Wilder ®. Weakley, 34 Ind., 181; Elliot ®. Ince, 7 D. G. M. & G., 475.
    The term “testamentary committee” is unknown to the courts, and known to the law only in the sense of “trustee” or “guardian:” Black’s Case, 6 Harris, 434.
    The interest or proceeds of a fund in the hands of a trustee is liable to attachment: Park ®.- Matthews, 12 Casey, 28. Wherever a party has a right of action, his creditors may attach it unless it be for wages : Ins. Co. ». Chambers, 10 Wr., 485; Kinney ®. Hemphill, 2 W. N. C., 323.
    There is no discretion allowed here as to the payment of interest, nor even of the principal. The words of the will show the intention that there should be an absolute payment of interest, and so much of the principal as is necessary for a comfortable support.
    In attachment execution, the validity of the original judgment cannot be denied by'the-garnishee: Black®. Nease, 1 Wr., 433 ; O’Connor®. O’Connor, 2 Gr., 245 ; Fox ®. Reed, 3Id., 81; Millingar ®. Hartupee, 3 P. F. Sm., 366..
    October 6, 1884,
   the opinion of the Court was delivered by

Gordon, J.:

That, in Pennsylvania, a trust may be created for the protection of a spendthrift, lunatic, or feeble-minded child, is a proposition not now open to debate; nor is, there any more doubt about the fact that the estate limited by such trust will be protected from the grasp of creditors. Indeed, without such protection the testamentary provision would be to no purpose. In the will before us, we have a trust created by the testator for the use and. benefit of his son Levi, whom he evidently regarded as unfit to take proper care of himself, because of mental weakness, and this is, as we think, rendered obvious by the use of the word “committee” instead of trustee. Any doubt as to what the testator meant in the use of this word will be removed if we can consult the next succeeding clause of the will, wherein he provides: “My son Charles shall not have his share in liis hands unless he doth absolutely reform of his evil habits. If he don’t, then my executors shall petition to the court to appoint a suitable person as committee to take charge of his money in trust, and pay him the interest and so much of the principal as he may need for his support.” Here we see this word “committee” used just as it is used in our acts of Assembly providing for the appointment of trustees for the care of the person and estates of lunatics and habitual drunkards, and as the language is similar, mutatis mutandis, with that used in the preceding clause when providing for Levi, we are not left in doubt as to the testator’s intention, and this without reference to the proof adduced on the trial, including the finding of the inquest of lunacy. It is true that he did not make a strictly proper use of tile word “committee,” in that it properly designates an officer of the court appointed to take chai’ge of and administer the estate of one non compos mentis, or of a drunkard; nevertheless, his intention could not have been better expressed by the most skillful paraphrase. He seems to have known that when the court appointed such an officer, the estate which would thereupon go into his hands would not only be put beyond the reach of the cestui que use, but also beyond the reach of subsequent creditors. He knew that in such case the property of the use party could only be appropriated, interest and principal, for the maintenance of such party. But that he designed by his will to effect the very same disposition as to Levi, seems to us very clear, inasmuch as he uses the very same language in the one case as in the other. If Charles does not reform, application is to be made to the court for the appointment of a committee “to take charge of his money in trust, and pay him the interest and so much of the principal that he may need for his support.” But as to Levi, he being in such a mental condition that improvement cannot be expected, he provides for him at once, and directs that his son George shall act as his committee “to take care of all his money, and pay him the interest and so much of the principal that will give him a comfortable support.” As we must in the one case understand that the interest is not to go to the donee absolutely, but to be appropriated to his support, so must we understand in the other also, otherwise we will be giving a different interpretation to the same language, which it is not proper for us to do. It is to no purpose to attempt to liken this case to Park v. Matthews, 12 Ca., 28, and The Trust Company v. Chambers, 10 Wr., 485, and to say that the bequest was of the interest absolutely to Levi, and, therefore, attachable by his creditors: for here, as we have just shown, the expressed intention is the support of the donee, and for that purpose both principal and interest are to be used. To the mind of the testator it was certain that the whole interest would be required for that purpose, and perhaps part of the principal, but until this interest had been consumed in.the support intended, nothing else could be appropriated to that end. We think it does not at all accord with the testator’s design to hold that the trustee must take care that no more of the principal is expended than, with the interest, will furnish a comfortable support for the cestui que tese, and yet that that interest must, nevertheless, be paid over to him without regard to the use which he is going to make of it. The result of such a construction would be that the principal of the bequest must alone be used for the purpose of maintenance, because, if the interest could be squandered or attached by creditors, there would be nothing else left for that purpose. This, however, seems so foreign to the testator’s intention that we cannot adopt it as the true construction of his will. He evidently designed that his bountjr should be so used as to provide the necessaries of life for as long a time as possible to his feeble-minded son, and we cannot consent to have a design so proper and benignant defeated, even though the interests of a tona fide creditor might be thereby advanced.

The judgment of the court below is reversed.


text:
    January Term, 1884,
    No. 243.
    April 29, 1884.
    Sunbury Steam Ferry and Tow-Boat Company v. Heim.
    1. The powers of a corporation are to be found in its charter alone, and cannot he created or extended by implication.
    2. A penal statute must he strictly construed.
    3. The charter of a corporation provided that “ the said company shall he and they are hereby authorized to charge such rates of fare and tolls for the carrying of passengers, freight, merchandise, live stock, vehicles, and every species of property, and for the towing boats, rafts, arks, &c., as their board of managers shall direct.” and further provided, that “ all persons except the agents or employés of said company are hereby prohibited from pushing, rowing, or towing any boat, raft, float, ark, flat, or other vessel, laden or unladen, for pay, gift, or reward over the said Susquehanna river, to or from any point opposite or within the limits of the borough of Sunbury, &e.,” under a penalty of $20. Held, that although it gives the corporation the monopoly of transporting for hire every species of floating craft or vessel, it does not prohibit any person from towing or rowing his own boat across the river, whether laden or unladen, and does not create a general monopoly of the carrying business.
    4. If there were' a doubt concerning the construction of the above provisions in the charter, that doubt would be resolved in favor of the public.
    Before Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.; Merour, C. J., and Clark, J., absent.
    Error to the Court of Common Pleas of Northumberland County.

    Appeal from judgment of A. N. Brice, justice of the peace, entered against George W. Heim, for violation of the provisions of the eighth section of the act to incorporate the Sunbury Steam Perry and Tow Boat Company, passed April 5, 1870.
    On the trial in the court below, the following facts appeared :
    The plaintiff company was incorporated by act of 5th April, 1870, P. L., 871, which provided, inter alia, as follows:
    Section 6. That said company shall be, and they are hereby, authorized to charge such rates of fai’e and tolls for the carrying of passengers, freight, merchandise, live stock, vehicles, and every species of property, and for the towing boats, rafts, arks, &c., conveyed by them, as their board of managers shall direct, &c.
    Section 8. That said company shall keep the said landings and ferry in good condition for the accommodation of the public ; and for the better protection of the same, all persons except the agents or employés of said company are hereby prohibited from pushing, rowing, or towing any boat, raft, float, ark, flat, or other vessel, laden or unladen, for pay, hire, gift, or reward over the said Susquehanna river, to or from any point opposite or within the limits of the borough of Sunbury aforesaid, and if any person shall be guilty of a violation of this act, they shall, for each and every conviction thereof, forfeit and pay the sum of twenty dollars, to be recovered before any court of record or justice of the peace of this Commonwealth, as debts of like amount are recovered, the one half to be paid to the informer, who shall sue therefor, and the other half to the use of the said borough of Sunbury.
    On August 5, 1879, the council of the borough of Sun-bury passed the following resolution:
    “On motion of W. C. Packer, resolved that permission be arid is hereby granted to George W. Heim, to ferry with a steamboat from Arch street landing, on the river Susquehanna, to a point below Ira T. Clement’s landing, on the berm bank side of the Pennsylvania canal, and from either of the above-named points, to and from the borough of Northumberland, and any intermediate points.”
    After the passage of this resolution, the defendant ran a steamboat with a screw propeller, carrying passengers across the river, within the borough limits, for hire.
    The Court thereupon charged the jury, inter alia, as follows:
    ‘ ‘ At present I have only to say that it seems to me it is plain that the act only prohibits the pushing, rowing, or towing any boat, raft, float, ark, flat, or other vessel for pay or hire. For instance, a person on this or the other side of the river has a boat, raft, float, or an ark. that he desires to have towed across the river from one side to the other — no one would have the right, according to this act of Assembly, to either push, row, or tow it for hire, except an agent or employé of the Steam Ferry and Tow Boat Company, and for so towing he would be liable to a penalty of $20.”
    “It seems to me, at present, that this was all that was intended by the Legislature when it passed the act incorporating the Sunbury Steam Ferry and Tow Boat Company, and inasmuch as it has not been proved by any testimony in the case that George W. Heim, the defendant, either pushed, rowed, or towed any boat, raft, float, ark, flat, or other vessel, either laden or unladen, for pay, hire, gift, or reward, over the Susquehanna river, to and from any point opposite or within the limits of the borough of Sunbury, aforesaid, your verdict will have to be in favor of the defendant. You will, therefore, render a verdict for the defendant, and the Court will direct a motion for a new trial, when this case will be fully considered.” .
    Counsel for plaintiff excepted to the above charge.
    October 1,1883, verdict for defendant, upon which judgment was afterwards entered.
    Plaintiff then took out a writ of error, and assigned as error the charge of the Court and the direction to the jury to find a verdict in favor of the defendant.

      S. P. Wolnerton for plaintiff in error.
    The whole act of incorporation must be construed together. The prohibition against pushing, rowing, and towing any boat for pay or hire includes a boat propelled by a screw propeller. If this is not a technical “pushing,” it comes within the intention of the act. Statutes are to be construed so as to best effectuate the intention of the makers: Improvement Company «..Commonwealth, 13 Norris, 450 ; People ». Insurance Company, 15 Johns.v 358 ; 1 Kent’s Com., 462 ; Whitney «. Whitney, 14 Mass., 91; Potter’s Dwarris on Statutes, 231-262.
    The plain construction of the -whole act is that the plaintiff company should have the exclusive privilege of ferrying passengers and towing boats.
    The borough council never had the power to grant the privilege ; but if they had, so much of the act incorporating the borough as conferred such authority wras repealed by the act incorporating the plaintiff.

      W. O. Packer and William A. Sober for defendant in ■error.
    Under the act of incorporation, it is the duty of the borough to establish and maintain a public ferry. Prom the express letter of the act incorporating the plaintiff company, it was intended by the Legislature to be limited to the towing traffic. Two classes of employments are mentioned in the sixth section, viz: “ towing ’ ’ and “carrying.” The eighth section prohibits “towing,” but not “carrying.” A legislative grant will not be deemed exclusive unless the intention is perfectly clear: Johnson «. Crow, 6 Norris, 184. An act which operates retrospectively to take what is, by existing law, one man’s, and, without his consent, transfer it to another, violates the bill of rights: Palairet’s Appeal, 17 P. P. Sm., 479; Norman «. Heist, 5 W. & S., 171; Pinney «. Somerville, 30 P. P. Sm., 59 ; Evans «. Erie Co., 16 Id., 222; Canal Co. «. Landis, 9 Watts, 228; Plymouth «. Jackson, 3 Harris, 44; Richards «. Rote, 18 P. P. Sm., 248; Saving Fund «. Philadelphia, 7 Casey, 185 ; Bank «. Pittsburgh, 1 Wr., 340 ; Navigation Company «. Coon, 6 Barr, 379; Attorney General «. Turnpike Road, 5 P. P. Sm., 466.
    The grant to the plaintiff must be strictly construed: Com’th«. R. R. Co., 3 Casey, 339; Penna. R. R. Co.’s Appeal, 12 Norris,. 150 ; Maris «. Railway Co., 10 Phila., 41; Whitaker v. Canal Co., 6 Norris, 34; in re Bridge Co., 10 Id., 216.
    The Legislature cannot take away the prior right of the borough without compensation : Pickering v. Rutty, 1 S. & R., 511; University ». Robinson, 12 S. & R., 29 ; Carr v. Wallace, 7 Watts, 394; Appeal of Borough of Easton, 11 Wr., 255; Haldeman v. R. R. Co., 14 Wr., 425 ; Craig v. Allegheny, 3 P. F. Sm., 477 ; McClinton v. R. R. Co., 16 Id., 404; Harrisburg v. Crangle, 3 W. & S., 460.
    The right of eminent domain will not be presumed to exist: Phillips v. R. R. Co., 28 P. F. Sm., 177 ; Mifflinv. Railroad Co., 4 Harris,, 182.
    The Susquehanna,river is public highway: Com’th v. Richter, 1 P. & W., 462. The rights of the borough cannot be impaired by the act of 1870: Com’ th v. Water Co., 13 Norris, 516.
    The rights and privileges secured to plaintiff by charter should be limited to the “towing of boats, rafts, arks, &c.” Had the charter proposed more, it would have been invalid so far as it conflicted with the rights of the borough. The borough having granted to defendant the right to carry passengers, he is protected by the act of its incorporation.
    May 26, 1884,
   the opinion of the Court was delivered by

Gordon, J.:

There are two rules, of law to which this court has steadfastly adhered, and which by this time ought to be pretty generally known to the Pennsylvania bar: one is, that the powers of a corporation are to be found in its charter alone, and cannot be created or extended by implication; the other is, that a penal statute must be strictly construed. The reversal of the court below would involve a disregard of both these rules. If we examine the' charter of the company plaintiff, we will find that whilst it has the power to carry passengers, freight, &c., and charge tolls therefor, that power is not exclusive. Its privileges as a transporter will be found in the sixth section of the act of incorporation, which reads as follows: “The said company shall be, and they are hereby authorized to charge such rates of fare and tolls for the carrying of passengers, freight, merchandise, live stock, vehicles, and every species of property, and for towing boats, rafts, arks, &c., as the, board of managers shall direct.” An analysis of this section will show that the privileges as therein recited are divisible into two distinet classes; first, the carrying of passengers, freight, merchandise, &c.; second, the towing of boats, rafts, &c., and the essential difference in the methods of transportation is marked by the words “carrying” and “towing.” Then, when we turn to the eighth section, which is penal in its character, and designed to protect the business of the company, we find it does not embrace the first class as mentioned in the preceding section, but only the second. The prohibition is against “pushing, rowing, or towing any boat, raft, ark, float, flat, or other vessel, laden or unladen, for pay, hire, gift, or reward, over the said Susquehanna river.”

But there is here no specific prohibition against the carrying of passengers, freight, merchandise, &c. This omission is significant, and, as we think, reveals the legislative intention. It was thought proper to give the company the monopoly of transporting for hire every species of floating craft or vessel from the one side of the river to the other, and in order to accomplish this a penalty was imposed upon all others who should engage in a like business of transportation for hire. But it does not prohibit any person from towing or rowing his own boat across the river, whether laden or unladen. Had the Legislature designed to confer upon the plaintiff a general monopoly of the carrying business, it certainly would not have omitted from the eighth section the prominent,and most important feature of the sixth. This omission shows conclusively that, for the welfare of the public, the carrying of freight and passengers was left open to competition. Even were there a doubt concerning this, it would,, under the well-settled rules above stated, be our duty to resolve that doubt in favor of the public. The plaintiff is not entitled to what the statute does not clearly give it, and, on the other hand, the penalty cannot be imposed on the defendant if we have any serious hesitancy as to whether he has or has not done that which subjects him to its imposition. The judgment is affirmed.