text:
    West’s Appeal.
    1. Where the entry of satisfaction of a mortgage is shown to have been entered by mistake, it is not conclusive as between the parties to the transaction.

      2. A mortgage was held as security for certain notes. In the belief that all the notes were paid the mortgagee satisfied the mortgage of record. It was discovered that one of the notes was unpaid, of which the mortgagee had no knowledge. The debtor made an assignment on the following day. The mortgaged property was sold for arrears of ground-rent. Held, that the mortgagee was entitled to recover out of the surplus of the purchase-money the amount of the pote unpaid.

      January 14th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 166.
    This was the appeal of Henry F. West, assignee of the Girard Tube Works and Iron Company, from the decree of the court dismissing the exceptions to, and confirming the report of the auditor appointed to distribute a fund arising from a sheriff’s sale of real estate.
    The facts as found by the auditor, Pierce Archer, Jr., Esq., were, in substance as follows : The fund in dispute was $3607.70, the balance of the purchase-money of a wharf property on the river Schuylkill,' the title to which was in the Girard Tube Works and Iron Company, and which was sold under a judgment for arrears of ground-rent. The fund in the hands of the sheriff was claimed by the First National Bank of Reading, and by Henry F. West, the assignee, for the benefit of creditors of the Girard Tube Works and Iron Company.
    •During the years 1874-5, the bank had been discounting tjie paper of the Girard Tube Works and Iron Company of Philadelphia. In December 1874, the paper so held by the bank amounted to $21,508.70, part of which was then near maturity. The bank, at the request of. the Girard company, agreed to renewals of the paper, provided mortgages were given to secure them to the amount of $21,000. Accordingly, on December 31st 1874, a mortgage for $17,000 was assigned by the Girard company to the bank, secured upon certain wharf property on the river Schuylkill, near Arch street. The mortgage itself was given by Charles T. Murphy to the bank; but in point of fact the property itself belonged to the Girard company, and Murphy, who merely held it for them as trustee, afterwards executed a declaration of trust to that effect. This mortgage, with another of $4000 on No. 1427 Vine street, executed directly by Charles T. Murphy to President Eckert of the bank, made up the $21,000 security required by the bank, and the transaction was Consummated on January 4th 1875, by the de-livery of the papers.
    Contemporaneously therewith, President Eckert, for the bank, delivered to the Girard company a receipt or declaration, reciting, inter alia, that he holds the $17,000 mortgage as security for the payment of certain promissory notes of said company then held by the bank and any renewals of the same. These renewal notes, it appeared, were always sent several days in advance of the maturity of the originals. There were three of these notes due on March 3d 1875, which were renewed for four months, with one note amounting to the aggregate, $5156.95.
    On April 15th, about a month after this renewal, the Girard company wrote to the bank, as follows:—
    “The two notes of ours maturing on the 21st and 27thinst., were included in Mr. Norris’s statement for renewal. We are advised you have sent them forward for collection. Enclosed we hand you two notes of Geary, Tilton & Colwell for §2718.75 and §2371.69, respectively, which, if you prefer to our paper, we ask you to discount and apply proceeds to payment of our notes. Should this meet your views, please advise us.”
    On April 19th 1875, the bank wrote in reply: “Yours, 15th, with two enclosures addressed to Mr. Eckert for discount, has been received. I send enclosed statement showing you are short in the transaction §74.42, for which send us your check.”
    On April 20th, the company acknowledged the letter of the 19th and statement, and enclosed chock as requested.
    At this time there were due the note of the company for §5156.95, and the two notes of Geary, Tilton & Colwell, of which that for §2718.75 was paid on June 27th. On the 9th of June, the company wrote that they desired to have the wharf property released from the mortgage. The negotiation culminated on July 3d, in an interview in Philadelphia, between President Eckert, of the bank, and Mr. Charles T. Murray, treasurer of the Girard company, at which Mr. Norris appeared as attorney for the bank. Before leaving Heading, President Eckert directed one of the clerks to make him a statement of the Girard company’s account, which he did, showing but the one note of §5156.95 due by them as makers, and omitting the note for §2371.69, on which they were liable as endorsers. Eckert swore that he did not then know of the existence'of the note omitted; he brought this memorandum with him to this city, and having no other knowledge on the subject but that furnished by the clerk, he assumed it to be correct, and acted on it at the interview with Murphy.
    The result of the interview was, that Murphy gave Eckert two notes of the Pittsburgh Bolt Company, with the Girard company’s endorsement, in exchange for the $5156.95 note, the bank paying him the difference in cash, and receiving as security a mortgage for §4000 on another property. The §17,000 mortgage was then satisfied of record by the bank, and the second day thereafter the company failed and made an assignment to Mr. West, the appellant. The auditor found that the parties all concur that the adjustment of the 3d of July proceeded upon the declaration and assumption that but one note of the Girard company wras still held by the bank being about $5000. He further reported, “ It is impossible for the auditor, in the view he takes of the evidence, to conclude otherwise than that the mortgage of the bank was surrendered and satisfied by its chief officer through mistake and oversight, caused by the mis-infomiation of the clerk and the conduct of Mr. Murphy.
    “It is not pretended by any one that Eckert knowingly released, or intended to release, a first-class security, with knowledge of the note in dispute being in existence, without an equivalent. He distinctly swears he knew of but the one note due, and- that he would not have released the security for that one except getting, as he thought, nearly an equal one in the $4000 mortgage.
    “ Even Charles T. Murphy does not testify that the other note was at all spoken of or considered at the interview, or that it was regarded by the parties as having been taken out of the protection of 'the $17,000 mortgage. The extent of his claim is that because the bank took and discounted the Geary, Tilton & Colwell notes, shifting the Girard company’s debtors place from maker to that of endorser, that, therefore, there was no indebtedness to the bank on that account. He did not swear that the bank held no other liability of the company, only that they held none of the company’s paper for this amount, except their endorsement. He says he knew of this endorsement at the settlement, but considered that the Girard company was not liable because the bolt company was then good, and that while, as every one concedes, the unpaid note was not one of the notes (originally) secured by the mortgage, he goes the length of swearing that neither was it taken in lieu of one secured thereby — that is, not a renewal; because he says, arguendo , — the proceeds of the secured notes when discounted took the place of the original notes, and were placed to their credit. He does not aver any parol agreement to release the security and accept the new notes, nor does he pretend that the credit and standing of the new names of Geary, Tilton & Colwell were known to the bank, or that they acted upon it.”
    In passing upon the law of the case, the auditor said :
    “ First, then, as to the effect of the entry of satisfaction of the mortgage : If this question arose between parties strangers to the transaction — if, in other words, the satisfaction was sought to be invalidated, and the mortgage revived to the prejudice of an innocent purchaser for value without notice — there would be little difficulty in disposing of the attempt to do so manifest an injustice. Rut such is not the case in'hand, and .for the present the question is to be regarded as between the original mortgagor and mortgagee, and whether the mortgagee is bound absolutely and at all events by the satisfaction of record. I am of opinion that he is not, and that if a plain mistake of fact was made in satisfying the mortgage, that he is entitled to be heard in this controversy.
    “ Judge Woodward said, in Fleming -0. Parry, 12 Harris 47, that between the original parties, where the rights of third parties had not intervened, a release or extinguishment of a mortgage or bond without actual payment, is not a discharge unless so intended by the parties, and “ that there is no magic in an entry of satisfaction, either on a judgment or mortgage, which can prevail against the truth and equity of the transaction,” and if put on record at the instance of the mortgagor and for his benefit, he is not entitled to plead an estoppel; ‘a record it is,’ lie says, ‘but not a judicial record,’ citing Morris v. Brady, 5 Wliart. 541; Robert v. Halstead, 9 Barr 32.
    “ Sammans, Trustee, v. Binder, 7 Whart. 209, decides that the entry of ‘ settled’ on the record of the suit on a mortgage was not,, conclusive on the mortgagee as against a purchaser having knowledge of equities to the contrary.
    “ The whole subject was very fully considered by Judge Agnew in Lancaster v. Smith, 17 P. F. Smith 427. He held that the registry of a mortgage is not such a record as imports absolute verity, that it is in no sense judicial, that the entry of satisfaction is the act of the party, not the official act of the recorder, and that a satisfaction procured by fraud is no satisfaction at all.
    “ The result of an examination of these and other cases show that as between the parties, where there is no element of estoppel, the record of satisfaction of a mortgage has no greater sanctity or solemnity than any ordinary declaration in writing or a receipt made by a party, procured by fraud or by accident or mistake, and it is therefore open to contradiction and may be shown to have been given under a mistake of fact or law : Per Sharswood, J., Russell v. The Church, 15 P. F. Smith 9.
    “Not importing absolute verity itself,, therefore, as a judicial record, it is not protected by any rule governing official records of courts which imply judicial consideration and determination ; nor does it stand i'n equity as a deed, requiring a preponderance of proof unusual in other cases, to overcome it.
    “ That equity would set aside the entry of satisfaction upon proof of the facts alleged in this case, I do not entertain a doubt, upon the grounds either of mistake or fraud, and since the sheriff’s sale has divested the lien of the mortgage from the land, the only remedy of the mortgagee is the present one — by claim upon its proceeds: Bright. Eq., sects. 58-9, 61 — 2; Adams’ Eq. *188-9.
    “ Upon the second question as to whether, the assignee for creditors stands in any better position than his assignor — the mortgagor — - I have no difficulty whatever. The very recent case of City Bank of Harrisburg v. Sherlock, 3 Norris 366, definitely settles this question, citing Fulton’s Estate, 1 P. F. Smith 211, which contains a review of a host of authorities on the subject.”
    The auditor awarded to the bank the amount of the Geary, Til-ton & Colwell note with interest, and the balance of the fund to the assignee. The latter filed a number of exceptions, among which were the following:
    Because ho reported that the notes given by letter of April 15th 1875, were a renewal of the previous notes, and secured by the mortgage of $17,000 ; because he did not report that the letter of April 15th 1875, from the Girard Tube Works, together with the reply thereto, made the notes then taken a payment of the previous notes; because he admitted the testimony of Mr. Eckert to contradict or explain the meaning of said letter; and because he reported that the entry of satisfaction so made was not final and conclusive between the said parties.
    The court dismissed the exceptions and confirmed the report, and from this decree this appeal was taken.

      E. Gr. Platt and Samuel Dickson, for appellant.
    By the satisfaction of the mortgage the legal right of the mortgagee was entirely extinguished. His only remedy was by a bill in equity to restore this right. The only question for the auditor to decide was whether the lien of the mortgage was gone by the entry of satisfaction. After that entry it is denied that it wus a security. As between these parties the lien was absolutely extinguished and it could only be restored on the clearest evidence of fraud or mistake. A mistake will not be relieved against, if it is the result of the party’s own negligence : Duke of Beaufort v. Neeld, 12 Cl. & Fin. 248; Bispham’s Eq., § 191. It will not be relieved against when he has not made use of the means of inquiry open to him : Bispham’s Eq., § 191; Kerr on Fraud and Mistake 407. The mistake must be mutual to induce the court to reform a contract: Cooper v. The Farmers’ Mutual Ins. Co., 14 Wright 299.

      E. Spencer Miller, for appellee.
   The judgment of the Supreme Court was entered, February 3d 1879,

Per Curiam.

We entirely concur in the conclusions of law and fact of the learned auditor in the court below and affirm the decree On his report.

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


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Johnson’s Appeal.
    • The testatrix devised certain real estate to her executors, to he held in trust ■by them to pay over the rents, issues and profits to her son for life, and then disposed of the remainder as follows : “ and upon and immediately after the death of my son, to assign, grant and convey the said real estate to such person or persons, and for such estate or estates, and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same, if he had died intestate seised thereof in fee.” After the death of the testar trix the son adopted a child under the provisions of the Act of May 4th 1855, and subsequently died, leaving this adopted child but no issue. Held, that this adopted child was entitled to the estate.

      January 14tb 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 154. In Equity.
    Appeal of Ann B. F. Johnson, by her guardian, from the decree of the court dismissing her bill in equity.
    By her will, dated March 13th 1857, Mrs. Jane Johnson devised to testamentary trustees certain real estate in Philadelphia in trust, to collect the rents and profits thereof and to pay them over to her son, Samuel B. Johnson, for and during the term of his natural life, the same not to be subject to any debts or liabilities contracted by him, and immediately after his death to grant and convey the said real estate to such person or persons for such estate and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same if he, the said Samuel had died intestate, seised thereof in fee. Other parts of her estate were similarly disposed of, in trust for three other sons. Her residuary estate was devised and bequeathed to trustees upon like Busts, for the benefit of her four sons for life, with a similar limitation of the remainders in each to such persons as would, by the intestate laws of Pennsylvania, be entitled to the same, if the sons had respectively died intestate, seised in fee. By a codicil the testatrix restricted the amount of income to be paid to her son, Samuel, to such sums as the trustees might, in their own discretion and judgment, think proper and conclusive to his welfare, and not to his injury.
    On the 8th of May 1875, Samuel B. Johnson applied to the Court of Common Pleas for permission to adopt Ann Booth Francis (the complainant), under the provisions of the Act of May 4th 1855, Purd. Dig. 61, which petition having been assented to by the minor and her mother, was duly granted, and it was decreed, in accordance with the act, that she should have “ all the rights of a child and heir of the said Samuel B. Johnson.” Ann Booth Francis was a stepdaughter of Samuel B. Johnson, being a daughter of his wife by James Francis, her former husband. Samuel B. Johnson died December 18th 1876, leaving a widow and no child, except his adopted daughter, the complainant.
    The case was heard on bill and answer, and the court, Thayer, P. J., in an opinion, said:
    “ The question to be decided upon the pleadings is, whether the fee in that portion of the estate of the testatrix which was devised and bequeathed in Bust for Samuel B. Johnson for life, has vested in the complainant, his adopted daughter, or has passed under the will to his surviving brothers and the children of his deceased brothers.
    “ It is clear that whoever is to take the remainder is to take as a purchaser under the will of Jane Johnson, and not by descent as the heir of her son. The son may be said to have been a purchaser as to his life interest, for, although at common law a devisee, who takes by the will precisely the estate, that would have been cast upon him by descent is in by descent and not by purchase, yet the case is different where there is a difference in quantity between the estate which the devisee would take as heir and that which he takes under the devise: Kinney v. Glasgow, 3 P. F. Smith, 143; Reading v. Royster, 1 Salk. 242. But as purchaser he only took an equitable life estate. He had nothing in it which could descend to his heirs. The fee remained in the trustees for the remaindermen, to whom it was given by the will, and these remaindermen are described as ‘ such person or persons as would, by the intestate laws of this Commonwealth, be entitled to the same if the said Samuel had died intestate, seised thereof in fee.’ What persons were intended by Mrs. Johnson by these words, for it is the intention .of the testatrix, and her intention alone which is to prevail ? We think those persons were intended who would have been entitled under the Intestate Act of 1833. That act is entitled ‘An Act relating to the descent and distribution of the estates of intestates.’ This is what is usually understood by the intestate law of Pennsylvania. It is commonly called the intestate law, sometimes the statute of distributions. It is in itself a complete code of laws upon the subject to which it relates. Its provisions are in accord with the general sentiment of the people of this state upon that subject, and are founded in nature and reason. It gives the property of an intestate to his kindred, commencing with the nearest in degree, and scrupulously confines the descent of real estate to those who are of the blood of the ancestor from whom it descended, or by whom it was devised. By this law any estate derived from the mother would, upon the death of any one of her sons, go to those of her own blood, to her surviving sons, and to her grandchildren and granddaughters, the children of her deceased sons. Can it be believed that' she intended that any part of it should go •to strangers to her blood, or, least of all, that it should go to an appointee of a son whom she had tied up by the most rigid trusts, whom she had deprived of the least control over both the corpus and income during his life, and of all disposition of it after his death ? Can she be supposed to have intended that her son should designate the heir wbo should succeed to her estate, when she deprived him not only of all power of appointment, but of any control whatever ? Could she have intended to commit the future disposition of the estate, or of any part of it, to her son’s discretion when she expressly deprived him of all discretion and power even over that which he was to enjoy himself, and subjected him absolutely, even as to the receipt of income, to the discretion and judgment of her trustees ? It is impossible for us to believe this, for it is contrary to the whole spirit and teno.r of her will.

      “But it is said that, however improbable this may be deemed, the testatrix must have intended that which she has said, that she has by express words limited the remainder to such person as would be entitled to the same by the intestate laws, if Samuel B. Johnson had died intestate, seised thereof in fee; that if Samuel B. Johnson had died intestate and seised thereof in fee, the complainant, his adopted daughter, would, under the Adoption Act of May 4th 1855, have been entitled to the estate. But the argument leaps to a conclusion which is totally unwarranted by law'. If Samuel B. Johnson had died intestate and seised in fee, it by no means follows that the complainant would have inherited this estate. It would have been necessary, in that event, to have inquired from whom the estate descended, or by whom it had been given or devised to him, for the ninth section of the Act of April 8th .1833 would have excluded from the inheritance all persons who were not of the blood of the perquisitor. There is not the slightest pretence to say that the Act of 4th of May 1855, relative to adoption, has repealed or modified in the least degree this fundamental rule of the law of descents, as fixed by the intestate law of this state. It would require the plainest and most express language, or the most absolute and necessary implication, to repeal a rule of inheritance so deeply imbedded in our law as this. There is nothing in the Act of 1855 which lend„s countenance to the supposition that it was the intention of the legislature to disturb in the least this long-established canon of descent. The act declares that such adopted child shall have all the rights of a child and heir of the adopted parent. It gives to the adopted child the right to inherit from the adopting parent, but always subject to the rules of inheritance laid down by the intestate law. It does not repeal the ninth section of the Act of April 8th 1883, w'hich demands the indispensable qualification of blood to enable her to inherit an estate coming to the adopting parent by descent or devise. As was said by Mr. Justice Strong, in Schafer v. Enue, 4 P. F. Smith 306, ‘ the statute of 1875 does not attempt the impossibility of making the adopted person the child of the adopted parent. It gives to such person the rights of a child without being a child.’ That is, the right to inherit from the adopting parent an estate of which he is the true perquisitor. But there is no ground to allege that an adopted child, not of the blood of the ancestor from whom the estate is derived, could inherit such an estate from his adopting parent.
    “ The argument therefore that the complainant is entitled to this estate because if her adopted father, Samuel B. Johnson, had died intestate seised in fee, she would have taken from him, is founded in an erroneous conclusion. She could not have inherited an estate derived to him by descent or devise from his ancestor, unless she W'as herself of the blood of that ancestor. When Mrs. Johnson, therefore, by her will gives the remainder to such person or persons as would by the intestate laws be entitled to the same, if her son Samuel had died intestate seised thereof in fee, her words must be construed with reference to the facts of the case, and the words had died intestate seised thereof in fee,’ must be taken to mean the same as if she had said died intestate seised thereof in fee of an estate derived from herself.
    “That the Act of 1855 confers only a limited right upon an adopted child, and does not substitute him in' the place of a real child under the intestate laws, is proved by the decision in Commonwealth v. Nancrede, 8 Casey 389, where it was held that a child by adoption is subject to the payment of the collateral inheritance tax, and Tharp v. Commonwealth, 8 P. E. Smith 500, is to the same effect. There is an analogy between the Act of May 4th 1855, relative to adopted children, and the Act of 27th April 1855 (Purdon 810), which enables illegitimate children to inherit from their mother and vice versa. That act declares that they shall have capacity to take and inherit from each other personal estate as next of kin and real estate as heirs in fee-simple. In Grubb’s Appeal, 8 P. E. Smith 55, it was held that the next of kin of the mother could not under this act inherit as heirs of the child, in other words, the act was held to have no operation in altering the intestate laws b.eyond the letter of the statute. A like rule may with propriety be applied to the Act of May 4th 1855. The application of that rule, while it gives the adopted child the right to inherit from the adopting parent, would exclude the possibility of such child inheriting from an ancestor of the adopting parent, and preserve intact the rule always so zealously maintained in this state, that one who claims an estate descended to or devised to an intestate must show himself heir to him by whom it was devised, or from whom it descended as perquisitor.

    “ When Mrs. Johnson therefore directed that the estate, the income of which was to be appropriated during his life to the maintenance of her son, should after his death go to such persons as would by the intestate laws be entitled to the same if he had died intestate, seised thereof in fee, she cannot be supposed to have intended that the estate should be taken out of the ordinary rules of descent prescribed by the intestate laws, and she must be presumed to have known that such an estate derived from her must be confined in its descent to heirs of her own blood. That this was her true intention, and that she did not contemplate the possibility of its being diverted from her own kindred to a stranger by any act of the son, we think is plainly apparent from the whole will. We have considered the question exclusively in respect to the real estate devised by the testatrix. We are of opinion that the same result would follow as to any personalty which might be embraced in the residuary estate, for it is obvious she intended the same persons to take both. But it is unnecessary to decide this, because the

      bill, while suggesting the possibility of some personal estate being comprehended in the residuary estate, does not explicitly charge that any such personal estate came to the hands of the trustees
    “Bill dismissed with costs.”
    From this decree this appeal was taken.

      W. II Drayton, for appellant.
    The language used, viz.: “ Upon the death of my son Samuel, to such person or persons, for such estate or estates and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same if he had died intestate seised thereof in fee,” has been judicially construed to mean his heirs: Dodson v. Ball, 10 P. F. Smith 492, 500; which construction has been repeated in Yarnall’s Estate, 20 Id. 335; Gaul’s Estate, 30 Id. 348.
    To these -words “ heirs or heirs of the body” the law attaches a definite meaning. They are words of limitation and not of purchase. That the testator did not foresee all the consequences of his disposition is not a reason for varying it, &c. : Rules of Construction, Jarman on Wills, vol. 2, *p. 748, rule 13. When a testator uses technical words he is presumed to use them in their legal sense Id., rule 12.
    The right to inherit is all we claim, but not this right narrowed to personal acquisitions of parent. The Act of 1855 cannot divest a vested right, and does not give up any right of the Commonwealth, either in terms or by any clear intent. No other reservation is to be presumed by law, and the terms used “ have all the rights of a child and heir of such adopting parent,” should, except as to the rights of the state, be construed literally. If these broad terms need any incidental implication of intent this is found in the proviso that if there are other children the adopted shall share with them in case of intestacy, and that they shall inherit from and through each other as if all had been lawful children of the same parent. Does not this proviso show the legislative intent to make the statute as general as possible ?
    Almost all the Acts of Assembly legitimating adopted children have been special, and this Act of 1855 is general. Most of our analogies are thus necessarily taken from special statutes, but this court said, in Tharp v. Commonwealth, 8 P. F. Smith 500, that there is no essential difference between a special act making one an heir and the general Act of May 1855. See McGunnigle v. McKee, 27 P. F. Smith 81; Killam v. Killam, 3 Wright 120; Opdyke’s Appeal, 13 Id. 373, as to the construction of these special statutes. The construction invoked does not in the slightest respect impugn the decision of this court in the class of cases represented by Schafer v. Enu, 4 P. F. Smith 304, or Commonwealth v. Nancrede, 8 Casey 389.
    Schafer v. Eneu was the case of a will made before the Act of 1855, designated unmistakably, in technical terms of purchase, the kind of children intended by the testator, and vested the remainder in default of children. Commonwealth v. Nancrede decided what is too well settled to admit of dispute, that the state parts with none of her rights in any act, unless the act is a contract, or she is expressly named as yielding her right, or clearly intends to do so.

      George Junkin, for appellees.
    If the words of the will can -be considered as of doubtful construction, the law presumes that it was the intention of the testatrix to devise the estate to her kindred : Findlay v. Riddle, 3 Binn. 149; Reck’s Appeal, 28 P. F. Smith 432 ; Howitz v. Norris, 10 Id. 267 ; Provenchere’s Appeal, 17 Id. 463 ; Barclay v. Lewis, Id. 320.
    In the present case, it is clear, whoever takes the remainder takes by purchase, and not by descent. They do not take as the heirs of Samuel, but as specific objects of the bounty or good-will of the testatrix upon some consideration moving from them to her or her to them. She selects a class who are to take at the death of her son, and she designates that class as described “ in the intestate laws of this Commonwealth.”
    The Act of 1855 is not a general law. It does not directly or indirectly interfere with the general provisions and principles of the intestate laws of the Commonwealth, viz., the Act of 1833. It says, that one being the owner of an estate in his own right, and being competent to will it as he pleases, may bring in any stranger to his blood, and give that stranger the right to an equal share of the inheritance from him. It is his, and he may thus divide it as he chooses. But, he and his are thus outside of the general intestate laws. The child adopted shall “ share the inheritance.” What inheritance? Surely, that which it is his to bestow, and which’ comes from him. It merely provides for the adopted child’s inheritance from the adopting parent.
    The act did not make the testatrix, Jane Johnson, an ancestor of the plaintiff, to whose kindred any estate could ascend from the artificial child, and on the other hand ought not to be held to make her a descendant of the testatrix. If this child takes, without regard to existing laws, and is held to be a lineal descendant of the testatrix, she may, with equal propriety, claim in course of time, not only the estate of her adopting parent coming from his ancestors, but in the capacity of a brother’s “ child,” claim the estate of any of his brothers, who might die intestate without lineal descendants. This would be a strange anomaly.
   Mr. Justice Gordon

delivered the opinion of the court, February 3d 1879.

Mrs. Jane Johnson, by her will, probated November 15th 1862, devised to her executors, the appellees, the property in question, to be by them held in trust, to collect the rents, issues and profits thereof, and pay the same over, after deducting taxes and other necessary expenses, to her son, Samuel B. Johnson, for and during the term of his natural life. After thus having clearly indicated the use to which the property should be appropriated during the life of her son, she, in a very succinct and intelligible manner, disposes of the remainder as follows, to wit:

“And upon and immediately after the death of my son, Samuel B., to assign, grant and convey the said real estate to such person or persons, and for such estate or estates, and in such proportions, as would, by the intestate laws of this Commonwealth, be entitled to the same if he had died intestate seised thereof in fee.”

In all this the intent of the testatrix is unmistakable: her main object is to provide for her son for life; this covers her principal anxiety, as will appear by the will itself, made in 1857, as well as by the codicil executed some five years thereafter. After he is gone, her chief intent is fulfilled, and she casts the remainder over to the disposition of the intestate laws, to go not to any particular class, stalk or stirp, and not to her blood, near or remote, but to such person or persons as would, by the above-named laws, be entitled to the same, had Samuel B. Johnson died intestate and seised thereof in fee.

Suppose, then, he had died intestate, seised in fee of this disputed property, w'ho, under the intestate laws of this Commonwealth, would be entitled to the same ? Certainly his adopted child, Ann B. F. Johnson. If not, then is the Act of 1855 of no force; for it declares that, upon fulfilment by the parties interested of the requisites prescribed, the court shall decree “that such child shall assume the name of the adopting parent, and have all the rights of a child and heir of such adopting parent, and be subject to the duties of such child.” Thus we see that the appellant is, so far as legislative power can so make her, both child and heir of Samuel B. Johnson, and if notwithstanding she yet cannot inherit her adopted father’s estate, it is because the courts, under the name of judicial interpretation, have repealed the statute.

She is not, it is argued, of the blood of the testatrix, and therefore the testatrix did not intend to vest in her this remainder. But this is an imaginary intent, evolved for the occasion — o.ne which Mrs. Johnson, if we regard her words, never entertained. She is careful to use no word by which the operation of the intestate laws might bo limited: to such person or persons as would, by the intestate laws of this Commonwealth, be entitled to the same, had he died intestate seised thereof in foe, is her emphatic language, twice repeated in this same will. There is, therefore, nothing left for conjecture.

If, as was said by our brother Mercur, in McGunnigle v. McKee, 27 P. F. Smith 81, one who makes a will is presumed to act in view of the power of the legislature to legitimate a bastard and make it an heir, much more will it be presumed that one making a will acts in view of laws already made, by which a child may be adopted and thus made an heir.

One of two things may be regarded as reasonably, certain in this case: either Mrs. Johnson did know and understand the intestate laws, to which she so distinctly and emphatically refers, and so must have known that her son had the power to introduce into the succession one not of her blood, or she' was indifferent as to what might become of the residue of her estate after her son’s death, and therefore intrusted the disposition thereof to those laws, without caring to inform herself particularly concerning their provisions. In the one case, she acted in view of the possible occurrence of what has happened, and in the other, she cared not what the result might be;' in either case, nothing remains but to give her words their legal and reasonable meaning and force, and thus invest the appellant with the title and possession of the property which rightfully belongs to her.

It is now ordered, adjudged and decreed, that the decree of the court below dismissing the plaintiff’s bill with costs, be now reversed and set aside; and that so much of the estate late of Mrs. Jane Johnson, deceased, as was by her will vested in trustees during the life of Samuel B. Johnson, and which, “upon and immediately after his death, was to be assigned to such person or persons, for such estate or estates, and in such proportions, as would, by the intestate laws of this Commonwealth, be entitled to the same, if he had died intestate, seised thereof in fee,” be now conveyed in fee. by said trustees, to Ann B. E. Johnson, adopted child and heir of Samuel B. Johnson, deceased, and that any income on hand or securities held by said trustees, and which ought of right to pass to the guardian of the said Ann B. E. Johnson, be now transferred and paid over to said guardian. Ordered further, that the costs be paid by the appellees.


author: Mr. Justice Paxson

text:
    Otterson versus Gallagher.
    1. In proceedings to disti-ibute an estate, the Orphans’ Court has jurisdiction to inquire into and determine all questions in the way of distribution) affecting creditors or assignees of legatees, and parties who submit themselves) to its decree are concluded thereby.
    2. While an assignee of a legatee is not compelled to go into the Orphans’ Court with his claim, yet if he submit it to that tribunal, its decree, unappealed from, is final, and he cannot afterwards proceed upon an attachment in the Common Pleas.
    January 15th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 158.
    Attachment execution, in which Anthony J. Gallagher was plaintiff, Samuel S. Norcross, defendant, and James Otterson, Jr., Esq., and Hon. F. Carroll Brewster, executors of E. P. Middleton, deceased, were garnishees.
    Edward P. Middleton, by his will, bequeathed to his sister, Mrs. Ilamtah Norcross, the interest of $10,000, to be paid to her during her lifetime by his executors, and at her death the principal was to be divided among her children'who survived her. Mrs. Norcross died April 4th 1877, leaving four children, one of whom is the defendant in this attachment. On the 2d of April 1877, i't appeared this son assigned his interest under the will to John Graham. The assignment was formal and full, and was for a consideration of $2000, which Norcross received. Upon the audit of the accounts of the executors in the Orphans’ Court, the share of Samuel S. Norcross was claimed by Graham by virtue of this assignment, and by the plaintiff, Gallagher, a judgment-creditor upon whose judgment an attachment had been issued, on April 10th 1877. The Orphans’ Court, Hanna, P. J., awarded the share to Graham. Upon the trial of the attachment suit in the Common Pleas, the record of the Orphans’ Court was offered in evidence by the garnishees, which the court, Fell, J., rejected. The verdict and judgment being for plaintiff, the garnishees took this writ and assigned this action for error.

      F. F. Brewster, Robert II. Hinckley, Jr., Henry S. Hagert and F. Carroll Brewster, for plaintiffs in error.
    The very question raised by the pleadings in the court below was adjudged in the Orphans’ Court and between the same parties, thereby bringing this case within the rulings of the court in Duchess of Kingston’s Case, 20 How. St. Trials 538, and the plaintiff was estopped from bringing another action. The Orphans’ Court is a court of competent jurisdiction and its decision was conclusive: Act of 1832, sect. 37, Purd. Dig. 1106, pl. 18; Dundas's Estate, 23 P. F. Smith 474; Kittera’s Estate, 5 Harris 416; McMurray v. Davis, 5 W. N. C. 305.

      Theodore F. Jenleins, for defendant in error.
    The jurisdiction of the Orphans’ Court is fixed by the Act of June 16th 1836. A legacy was not the subject of a foreign attachment until the Act of July 27th 1842, nor of an attachment sur judgment until the Act of April 18th 1843. How, then, can the Orphans’ Court obtain jurisdiction of an attachment ? There is no Act of Assembly that gives it in express terms, and, it is submitted, that there is no rule of construction whereby a limited jurisdiction is extended to a right subsequently created.
    The jurisdiction of the Orphans’ Court is statutory: Snyder’s Appeal, 12 Casey 166. Consent will not give jurisdiction: Williard’s Appeal, 15 P. F. Smith 265; Livingston’s Appeal, ante, 209.
    The Act of 1832 does not include an attaching creditor: Kittera’s Estate, supra; Hammett’s Appeal, 2 Norris 392; Gochenaur v. Hostetter, 6 Harris 414; Chambers v. Baugh, 2 Casey 105.
   Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This record presents but a single question. The plaintiffs in error were the garnishees below in an attachment sur judgment, in which A. J. Gallagher, the defendant in error, was plaintiff, and one Samuel S. Norcross defendant. The subject of the attachment was a legacy in the hands of the garnishees, as executors of the last will and testament of Edward P. Middleton, deceased. Upon the trial of the attachment the garnishees offered in evidence the record of the Orphans’ Court, showing the settlement of their accounts as executors, and the adjudications by that court of the question of the right of the attaching creditors to the legacy. The court below excluded the record, and this ruling is assigned for error.

An examination of said record shows that the defendant in error appeared by his counsel before the auditing judge of the Orphans’ Court, as an attaching creditor of Samuel S. Norcross, a distributee of a portion of the fund in the hands of accountants; that “ the sole question before the court was as to who was entitled to the distributive share of Samuel S. Norcross in the legacy which formed the corpus of the trust estate.” On the one hand it was claimed by John Graham, who alleged that he was the bona fide purchaser for value of the interest and share, and on the other hand it was claimed that the amount of the share of Norcross should be directed to remain in the hands of the accountant to await the final determination of certain attachments sur judgments issued-by creditors of Norcross against the accountants as garnishees.

The court proceeded to hear the case, the counsel for the defendant in error being present and participating in the- examination of the witnesses, and finally decided it adversely to the attaching creditors, upon the ground that the legacy to Norcross had been bopa fide assigned prior to the attachments. A formal decree was entered in the Orphans’ Court, awarding the legacy to Graham, the assignee of Norcross, from which decree no appeal has ever been taken by the defendant in error. It is therefore a conclusive adjudication so far as the plaintiffs in error are concerned, that they have in their hands, as executors, a certain sum of money belonging to John Graham. Being mere stakeholders, they had no appeal from a decree of distribution. Was the decree of the Orphans' Court binding upon the attaching creditors ? If not, the plaintiffs in error are in the awkward predicament of having two judgments against them for the same matter, in two courts, each of competent jurisdiction. There must be error somewhere to produce such a result.

We do not think it necessary to discuss at length the powers and jurisdiction of the Orphans’ Court. The whole subject has been gone over so recently as Lippincott’s Appeal, in Dundas’s Estate, 23 P. F. Smith 474. Most of the cases, as well as Acts of Assembly, bearing upon this branch of the law, will be found there cited, either in the opinion of the court or the arguments of counsel. It was said by the learned judge, in delivering the opinion of the court:It is very clear, therefore, that the Orphans’ Court in a proceeding to distribute an estate among legatees, next of kin and heirs, has ample power to inquire into and determine all questions standing directly in the way of a distribution to these parties.” This was but a repetition of the doctrine previously announced in Whiteside v. Whiteside, 8 Harris 473 ; Shollenberger’s Appeal, 9 Harris 341; Ashford v. Ewing, 1 Casey 213; Black v. Black, 10 Id. 354; Kittera’s Estate, 5 Harris 416; Bull’s Appeal, 12 Id. 286. In Dundas’s Estate, a residuary legatee, before the value of his share had been ascertained, assigned it to the wife of an executor for a sum much less than it was ascertained to have been worth. He petitioned the Orphans’ Court to have the share paid over to him, and the assignment thereof set aside on the ground of fraud. In deciding that ease this court said, referring to the petition to vacate the assignment: “ These facts give jurisdiction to the Orphans’ Court to compel distribution by the executors, and payment of the petitioner’s share to him. Had the petition set forth nothing more the consequence would have been plain. The executors, to protect themselves, would have set forth the assignment in their answer, and cited the assignee to defend pro interesse suo. This would have brought from the petitioner a replication of fraud and deceit in procuring the assignment. The paper thus standing in the way of distribution, there being two claimants to the same legacy or share of it, the jurisdiction of the Orphans’ Court necessarily attaches in order to remove the barrier to the payment of the legacy. The language of Judge Lewis in Kittera’s Estate, directly applies, that each one must be heard in support of his claim, and in opposition to every claimant who interferes with it, and that the power to decide all questions essential to distribution follows the power to distribute.”

In the case in hand the legacy was claimed by the assignee of the legatee. The attaching-credjtors claimed it by virtue of their attachments. Under the authorities cited, it is very clear that the Orphans’ Court being clothed with the power of distribution, was competent to decide all questions in the way of distribution. The rights of legatees and next of kin, claims of creditors, the validity of assignments of such claims, and questions of priority of lien, are within the recognised powers of the ' Orphans’ Court. In distribution proceedings, it has been decided that the court has authority to determine the title to contesting claimants to the same fund as an incident of the distribution: Souder’s Appeal, 7 P. F. Smith 438. The parties to this contention claimed the same fund, the one by an assignment, the other by virtue of his attachment, which is a species of statutory assignment. There can be no doubt of the power of the Orphans’ Court to decide between these conflicting claims. We need not discuss the question how far an attaching-creditor is compelled to go into the Orphans’ Court with his case. The defendant in error went into that court voluntarily, and submitted his claim to that tribunal. A decree was made against him, from which he took no appeal. We are of opinion that he is concluded thereby, and that the court below erred in excluding the record in that proceeding.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Clyde versus Hubbard.

    In tlie absence of stipulation by a carrier to transport freight beyond the terminus of its own route, it is not responsible for the default of those it employs to convey the remainder of the distance, but if it make itself responsible by contract, or if an agreement to be so can be fairly inferred from the bill of lading, it will be liable for a misdelivery of the goods by another carrier, to whom it has delivered them to be carried to their ultimate destination.
    January 15th 1879.
    Before Sblarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 130.
    This was an appeal by William P. Clyde & Co., from a judgment of a magistrate in favor of Hubbard Brothers.
    In the court below the following case was stated for the opinion of the court. The plaintiffs, Hubbard Bros., on October 30th 1875, delivered to the defendants, W. P. Clyde & Co., general managers of the Philadelphia and Charleston Steamship Company, a corporation which runs a line of steamers between the ports of Philadelpbia and Charleston, South Carolina, at their wharf in Philadelphia, one case of books of the value of $50.40, for transportation upon terms set forth in the following bill of lading, which embodies the whole contract between the parties:—
    The goods herein referred to shall be subject to a lien, and may be retained for freight and charges on other goods, due from the party on whose account they are transported, as well as for freight and charges on the goods retained.

      Marked

    HUBBARD BROS., Collinsville,
    JDe Kalb Co.,
    Ala.

      via Charleston.
    No. 2304.
    Insurance, $
    Charges, $
    Hates guaranteed only from Philadelphia to -per 100 lbs.

    IS™ No liability will be assumed for wrong carriage or wrong- delivery of goods that are marked with initials, numbered or imperfectly marked. Weights and classification subject to correction.

      These Bills of Lading for Through Freight only,

    Philadelphia and Charleston Steamship Line and Through Freight Line South AND So UTHWEST.
    Wm. P. Clyde & Co., General Managers,
    No. 12 South Wharves, Philadelphia.
    Wm. A. Courtenay, Agent, Charleston, S. C.
    Philadelphia, Oct. 30, 1875.
    Shipped by Hubbard Bros.,-
    in apparent good order, on board the Steamship Nanita, with leave to transfer to any other Steamship, and hound for Charleston, S. C., with liberty to call at any Port or Ports for whatever purpose.
    One (1) Case Books,
    Marked and numbered as per margin, and to ho delivered in like apparent good order at Charleston, S. C. The acts of God, war or the enemy, restraint of Governments, fire while on board the vessel at sea, in port., or on shore, awaiting shipment or delivery, accidents from machinery, boilers, steam, or any other accidents of the seas, rivers, and steam navigation, of whatever nature or kind, excepted, and with liberty to sail with or without Pilots, and to tow and assist vessels in all situations, to be delivered at the vessels’ taekles, unto the South Carolina Railroad, and by said road to be transported to destination, as per marks on the articles. Freight to be paid as per Printed TarilF Rates, together with advances as per margin.
    Single shipments, actually weighing less than 100 pounds, will be charged as weighing 100 pounds. The owners of this ship will not be held responsible for Gold, Silver, Precious Stones, Metals, Jewelry, Treasure, or Valuables of any kind, unless Bills of Lading are signed therefor, and the value thereof therein specifically expressed.
    And it is further expressly stipulated, that in case any claim shall arise from any damage or injury to the articles mentioned in this Bill of Lading, while in transitu and before delivery, the extent of such damage or injury shall be adjusted in the presence of an officer of the Railroad before the same are removed from the station.
    And the amount of such claim when so ascertained shall ho preferred at the office of the Chief of Transportation of the Road which shall have delivered the goods within ten days after such delivery. And in case such claim, whatever it may be, shall not be preferred within the time and at the place hereinbefore designated, such loss or damage shall be deemed to be waived.

      [Clyde v. Hubbard.]
    And it is further agreed, that the receipt or possession of this Bill of Lading by the Owner, Shipper, Consignee, or Agent of either or all of them shall be deemed sufficient proof of their knowledge of and agreement to the same.
    Weights, contents, and condition of packages being unknown, no responsibility is assumed therefor: nor will the Company he responsible for cooperage or mending, loss in weight, leakage, breakage, or rust; nor for frost, heat, natural decay of goods, or unavoidable exposure to weather ; nor for the value of above merchandise, if all or part of it be taken out of the possession of this Line by process or color of law, the shipper having received notice of the fact; nor for goods not specified in this Bill of Lading.
    ■ It is expressly stipulated that the articles named in this Bill of Lading shall be at the risk of the owner, shipper, or consignee thereof while on the pier or wharf awaiting shipment.
    And it is further stipulated, that in all cases of loss of such goods or merchandise, the amount of claim and damage shall be restricted to the cash value of such goods or merchandise at the port of departure, at the time of shipment and shall be presented as above, within ten days after the proper time for their delivery in due course ; and that all claims for partial loss or damage shall be ascertained and adjusted upon the same basis of value.

      In Witness whereof, 2 Bills of Lading, all of this tenor and date, have been signed, one whereof being accomplished, the other to stand void.
    F. ASHBURN,

      For Agents.

    (Form No. 15.)
    [On the hack of the foregoing Bill of Lading is printed the following: — ]
    Attention of shippers is called to the Clyde Steam Lines between—
    Philadelphia and Providence and Boston.
    “ Charleston, S. C.
    “ Norfolk and Richmond, Ya.

      “ Alexandria, Georgetown, and Washington, D. C.
    “ New York.
    New York and Wilmington, N. C.
    “ Charleston, S. C.
    “ Galveston, Texas.
    “ Havana de Cuba.
    Through rates and through receipts given.
    Wm. P. Clyde & Co., Wit. P. Clyde & Co.,
    No. 6 Bowling Green, New York. No. 12 South Wharves, Phila., Pa.
    General Managers.
    The goods were delivered by the defendants in good order at Charleston, South Carolina, to the South Carolina Railroad Company. They were subsequently improperly delivered by the freight agent of the South Carolina Railroad Company to one H. P. Gibbs, who had no authority to receive them. No freight was prepaid, but the whole freight was to be collected from the consignee at the point of destination upon delivery.
    The court entered judgment for the plaintiffs, and the damages were assessed at $53.08. The defendants assigned this entry of judgment for error. An objection that the judgment was improperly entered, inasmuch as it was entered against Clyde & Co., and not against the Steamship Company, was waived during the argument.

      John O. Johnson, for plaintiff in error.
    A carrier may bind itself to carry goods beyond the terminus of its route, and thus make itself responsible for the default of the connecting carrier, but the proof thereof must be clear: Pennsylvania Railroad Co. v. Berry, 18 P. F. Smith 272; Express Co. v. Bank, 19 Id. 394; Mullarkey v. Railroad Co., 9 Phila. 114; Nutting v. Railroad Co., 1 Gray 502.
    The bill only binds us to deliver to the company at Charleston. It stipulates that there are to be two carriers.

      jRichard Ü. Bale, for defendants in error.
    A carrier may bind himself to deliver goods beyond the termination of his own lino ; and his liability for their ultimate safe delivery is not absolved by proof that the goods were carried to the end of his line, and then delivered to the carrier next in the order of transit. This principle is distinctly recognised and was acted upon by this court in the case of the Baltimore and Philadelphia Steamboat Co. v. Brown, 4 P. F. Smith 77.
    No shipper upon reading this bill would doubt that he had received an instrument contracting for the through carriage of his goods to their point of destination, and the plaintiffs in error are bound by the writing in having held themselves out to the world as through carriers.
   Mr. Justice Woodward

delivered the opinion of the court, March 3d 1879.

Whether the carriers of the books consigned to the plaintiffs below undertook to deliver them at the point to which they wrere finally destined, or became responsible only for their safe conveyance to the termination of the steamship company’s line, must be determined by the facts set out in the case stated and by the terms of the bill of lading. One of the facts agreed upon was that Messrs. Clyde & Co. were the general managers of the Philadelphia & Charleston Steamship Company. In the bill of lading the name of such a corporation did not occur, and no contract on its behalf was specifically made. On the back of the bill there was this endorsement, “ Attention of shippers is called to the Clyde Steam Linos.” Nine different lines were then designated, of which that between Philadelphia and Charleston was one. Of all of them Messrs. Clyde & Co. described themselves to be the general managers, and in no instance was there any designation by a corporate title. From the heading of the instrument the contract for the carriage of the books appears to have been made in the names of the defendants below on behalf of the “ Philadelphia and Charleston Steamship Line and Through Freight Line South and Southwest.” The case containing the books was' marked “ Hubbard Bros., Collinsville, ReKalb Co., Ala., via Charleston.” The description of the carriers and the form of address to the consignees would naturally imply a single contract for through transportation and delivery at the point of final destination.

Was there anything in the stipulation in the body of the bill of lading to subvert or overbear this natural implication, and to discharge the carriers from responsibility after delivery at the terminus of the ocean line ? “ One case of books, marked and numbered as per margin,” were “ shipped by Hubbard Bros., in apparent good order on board the steamship Fanita, with leave to transfer to any other steamship, and bound for Charleston, S. C.,” * * * “and to be delivered in like apparent good order at'Charleston, S. 0.” After providing for the protection of the carriers from liability for loss in certain specified contingencies, it was provided that the case should “ be delivered at the vessels’ tackles at the South Carolina Railroad, and by said road be transported to destination as per marks on the articles.” In substance and effect, what was this contract? The steamship company described itself not only as a “ Steamship Line,” but as a “ Through Freight Line South and Southwest.” It undertook to carry goods to Charleston, but it undertook the further duty of providing for their delivery to the railroad company,.and for their railroad transportation. It would be difficult to find a reason why these stipulations did not bind the carriers to convey these books from Philadelphia to Collinsville.

That railroad transportation was in contemplation is apparently clear from other clauses of the bill of lading in these words: “ In case any claim shall arise from any damage or injury to the articles mentioned, * * * while in transitu and before delivery, the extent of such damage or injury shall be adjusted in the presence of an officer of the railroad before the same are taken from the station. And the amount of the claim, when so ascertained, shall be preferred at the office of the chief of transportation of the road which shall have delivered the goods within ten days after delivery.” These clauses do not apply to the demand of the plaintiffs, for their books were surrendered to H. P. Gribbs, who had no authority to receive them. But they proved that the steamship company were carriers by land as well as carriers by water. The provision that was made was for the adjustment of any claim for injury to goods, whenever and wherever occurring between the point of shipment and the point of delivery.

No question was raised upon the argument as to the legal rule determining the rights of the parties. It was agreed that in the absence of stipulation by a carrier to transport freight beyond the terminus of his own route, he is not responsible for the default of those he employs to carry the remainder of the distance. And the principle of The Pennsylvania Railroad Co. v. Berry, 18 P. F. Smith 272, was accepted that the proof of the contract should be clear. Looking at all the provisions of this bill of lading, no doubt is felt that the claim of the plaintiffs ought justly to be allowed.

All objections to the judgment on the ground that the suit was brought against Clyde & Co. instead of the steamship company were waived by counsel.

Judgment affirmed.


text:
    Hamill’s Appeal.
    1. It is within the discretion of the Orphans’ Court to grant or refuse a prayer for a review on the ground of after-discovered evidence.
    2. A wife’s right as a creditor of her husband must be clearly proved. This requirement is adequately met by proof that the husband was penniless, that the wife had §1200, and of the establishment by the joint action of both, in the husband’s name, of a business requiring a liberal cash capital at the start.
    3. Where a husband has received money of the wife, it will be presumed that he holds it in trust for her. The mere possession of a wife’s money is no evidence, since the Act of 1848, that the title to it is vested in the husband.
    4. Where the wife permitted the use of her money by her husband without any stipulation as to terms, and continued to live with him, and received support from the proceeds of the business in which her money was invested, she is only entitled to a return of the principal and not the interest.
    January 16th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 206.
    Appeal of Ann Hamill from the decree of the court, dismissing her bill for the review of the decree of said court, upon the adjudication of her account as administratrix of William Ilamill, de- , ceased.
    William Hamill died February 22d 1876, intestate, leaving a widow, the accountant, and three children by a former wife. The widow took out letters of administration and on the 28th of May 1877, she filed her account, which was audited June 25th 1877 by O’Brien, J., of the Orphans’ Court, before whom the widow claimed that she was a creditor of the estate, and alleged that fourteen years previously, she had loaned her husband §1500, and six years thereafter §866.13 additional, both of which sums were due her with interest. The facts as found by the auditing judge were in substance these: that Ann Hamill, then Ann Dougherty, married decedent on July 15th 1862, at which time Mr. Hamill was a journeyman harness-maker. That Mrs. Hamill, shortly before her marriage, had an establishment for the manufacture and sale of boys’ clothing, which she sold to Jane Holmes for $500 cash; that in May 1861, she drew out of the Saving Fund $496.05; that she then owned and still owns, a house on Newton street, which yielded her a rent of from $13 to $20 per month.
    Directly after the marriage, Mr. Hamill, in his own name, opened a pawnbroker’s shop and with his wife’s assistance continued the occupation from some time in July 1862, down to the day of his death, February 22d 1876. Immediately upon his decease, Mrs. Hamill took possession of the shop and goods and continued the business upon her own account.
    The following was the testimony of some of the witnesses:
    Francis McKeon. Knew deceased since 1843, intimately; he married Mrs. Hamill about fifteen years ago; was harness-maker, journeyman; means were limited; owned no real estate that I knew of, or personal estate except trifling. Knew Mrs. Hamill, the widow, since 1845; she had means when she married deceased; had a house; was in clothing business in South st. near Third st.; boys’ clothing; after marriage they went into the pawnbroking business; carried it on till his death; fair business; lived in the house; don’t think deceased had any money.
    A. F. McGarry. Am pawnbroker; knew deceased twenty-five years; July or August 1862, he said he had sold gold ; got large premium ; said it exultingly; premium was in neighborhood of $200 ; he said this gold he sold was his wife’s.
    Geo. C. Lee. Was tenant of Mrs. Hamill, 1006 Newton st., at first $9, then $13 per month to $17. Total amount, $1100, from October 1862 to 1870.
    Jane Holmes. I bought out Mrs. Hamill’s business; boys’ clothing ; paid her $500 in July 1862, just before she was married; paid in bank-notes.
    James McSorley. A few weeks before the marriage of decedent, Wm. Hamill (decedent) asked witness to lend him money to buy a wedding suit, but shortly afterward decedent told witness that he would not need the loan, as in a short time he expected to have the handling of a sum of money.
    The widow claimed that the money was loaned by her to her husband, to carry on the pawnbroking business, and that it was received by him as a loan and. held in trust for her use. The auditing judge, disallowed the claim on the ground that the evidence did not sustain it, and awarded the one-third of the estate to the widow and the balance to the three children of decedent, in equal shares. Exceptions were filed to this adjudication, it being alleged, inter alia, that the finding of the auditing judge was against the weight of the evidence. The court dismissed the exceptions and confirmed the adjudication. Subsequently the widow filed a bill for a rehearing, on the ground of after-discovered evidence. This evidence was that of Thomas Blackburn and was in substance:
    “ Decedent always led me to believe that it was his wife’s muney in the business, from first to last. I cannot remember now the exact words of our conversations on his business, but those conversations were in effect that it was his wife’s business, and her money was carrying it on and increasing it.
    “ The conversation I had with decedent in the year 1870, was in effect the same as at the time of his marriage, when he said he had nothing much to put in the business; that his wife had her money in it, and carried it on with her money.
    “I often had conversations with him, up to a few months of his death, and he never said anything to contradict the foregoing. He left the positive belief in my mind, from what he said, that his wife was carrying on the business with her money.”
    The court dismissed the bill arid confirmed the adjudication absolutely, when Ann Ilamill took this appeal.

      W. B. Robins and P. Mo Call, for appellant.
    Money received by a husband from his wife’s estate, after the Act of 1848, is presumed to have been received for her use: Johnston v. Johnston’s Adm’rs, 7 Casey 450 ; Mellinger v. Bausman, 9 Wright 522 ; Grabill v. Moyer, Id. 530; Gicker’s Adm’rs v. Martin, 14 Id. 141; Bergey’s Appeal, 10 P. F. Smith 408; Sawtelle’s Appeal, 3 Norris 306; Zeigler’s Appeal, 6 Id. 342.
    The decision in the present case holds the appellant to as stringent a proof of her claim as was required before the Act of 1848, or in a contest between the creditors of a husband and his wife. It puts the burden of proof upon appellant to show that the money was not received as a gift, and says the presumption is against her. This, according to the cases, is clearly erroneous.
    There is enough proof here to show that the husband received the wife’s money, and it was placed in the business for her benefit and use, and that the business was carried on in his name on account of her coverture. It would have been unnatural to suppose that the appellant would have given this money to a husband with children by a former wife, who were adults, and to whom she owed no duty.

      F. B. Watson and Thomas Latimer, for appellees.
    There was no evidence of a loan, or that decedent ever used any of his wife’s money. To establish the claim of a wife as a creditor of her husband, the proof thereof must be clear: Hause v. Gilger, 2 P. F. Smith 412; Wesco’s Appeal, Id. 195; Parvin v. Capewell, 9 Wright 89; Rhoads v. Gordon, 2 Id. 277.
    Appellant claims the burden of proof was shifted on us to prove it was not a gift. We contend there was no evidence of any money reaching decedent’s hands in his lifetime from appellant, offered at the audit before the auditing judge.
    The granting of a bill of review is a matter of discretion and not reviewable.
   Mr. Justice Woodward

delivered the opinion of tne court, March 3d 1879.

In the testimony produced before the auditing judge some essential facts in support of the appellant’s claim on the fund for distri'bution were definitely made out. When William Hamill was married in July 1862, he had no property of any kind. Immediately after his marriage, he entered, “with the help of his wife,” as found ■by the adjudication, upon a business requiring some capital, which he pm*sued until he died, and which, beside providing for the support of his family, has produced an estate amounting to about $3000. There was no pretence on the part of the appellees that he had any resources of his own except his wages as a journeyman harness-maker at the rate of fifteen dollars a week. James McSorley testified that a few weeks before the marriage, Hamill asked for a loan of money to buy a wedding-suit, but told him soon afterwards that he would not need it, “as in a short time he expected to have the handling of a sum of money.”

On the other hand, it appeared with equal certainty that Mrs. Hamill was in possession of some real estate which she still holds, and of some personal property which was immediately available. In May 1861, she had drawn out a saving-fund balance of $496.05, and just before she was married she sold to Jane Holmes for $500 the business she had been carrying on as a dealer in boys’ clothing. These two sums, amounting to $996.05, were the only cash means directly shown to have been in her hands. One witness testified that Hamill told him in July or August 1862, that he had sold gold belonging to his wife, and received a premium of $200. As the gold premium at that time was about twenty per cent., the amount sold could not have been far from $1000. And as the purchase-money for the clothing store was received in bank notes, it might be inferred that Mrs. Hamill had other mone'ys than those derived from the saving fund and from Mrs. Holmes. In the absence of direct proof, however, this would be an inference which it would be hazardous to draw\ But there is no doubt that the premium of $200 should be added to the other funds traceable to Mrs. Hamill’s possession. Rents to the amount of $1100 accrued after the marriage from her house in Newton street, but they were received after the business of a pawnbroker had been established in Mr. Hamill’s name, and were paid, for six or seven years at least, to Mrs. Hamill herself.

At the audit, a claim was made on behalf of the appellant against her husband’s estate for $1500, with interest for fourteen years, and for $866.18, with interest for eight years. The whole claim was resisted on the ground that there was no proof that any money of the wife passed into her husband’s hands. It was rejected 'on that ground, and the adjudication was confirmed by the Orphans’ Court.

All the questions pending between these parties are to be treated in view of the testimony on which the decree for distribution was based. It is unquestionably within the discretion of the Orphans’ Court to grant or refuse a prayer for a review on the ground of after-discovered evidence: Green’s Appeal, 9 P. F. Smith 235. In the exercise of that discretion, the appellant’s bill for a review of the decree was dismissed, and the allegations it contained and the affidavit of Thomas Blackburn are necessarily to be disregarded.

In many of the cases in which a wife’s right to a recovery against her husband’s estate has been in issue, the original ownership of the fund demanded has been the point of the controversy. There is room for no such question here. At the time of her marriage, the proof is clear that Mrs. llamill had nearly $1000 in money, and that soon afterwards she became possessed of at least $200 more. Did that money go into her husband’s hands ? He had no means of his own up to the hour of the marriage. Mrs. Hamill was not shown to have made any other investment, and it was shown that she entered upon the new enterprise at once. Mr. Mc-Keon testified that she and her husband went into the pawnbroking business ; that they carried it on until his death; that they did a fair business; and that the husband, in the opinion of the witness, had no money. That the means of Mrs. Hamill established this business would seem to be too clear for doubt. It has been said, in a multitude of cases, that a wife’s right as a creditor of her husband must be clearly proved, and this was said with special emphasis in Hause v. Gilger, 2 P. F. Smith 412. Here there are adequate elements of clear proof — a penniless husband, a wife with $1200, and the establishment by the joint action of both, in the husband’s name, of a business requiring a liberal cash capital at the start.

But the objection has been made on the part of the appellees, that no proof was made of any terms on which Mr. llamill held the money, and that without some evidence of a loan they were not required to show that it was a gift. The essential question is whether Mr. Hamill received the money or not. If he did, it will be presumed that he hold it in trust for her. The mere possession of a wife’s money is no evidence, since the Act of 1848 was passed, that the title to it has been vested in the husband: Grabill v. Moyer, 9 Wright 530 ; Gicker’s Adm’rs v. Martin, 14 Id. 141; Bergey’s Appeal, 10 P. F. Smith 408. No rights of creditors are involved in this litigation, and it is not to be taken for granted that Mrs. Hamill intended a gift to her husband for the eventual benefit of his children by a former wife.

Interest has been claimed by Mrs. Hamill on the money she advanced. Perhaps the allowance of this claim would be just. But she permitted the use of the money without stipulation as to terms. She was living with her husband in the usual family relation, and she derived her support from the proceeds of the business. In the absence of proof of some agreement, a return of the principal only can be enforced.

The decree of the Orphans' Court is reversed, and it is now adjudged and decreed that in the distribution of the estate of William Hamill, deceased, the sum of eleven hundred and ninety-six dollars and five cents be allowed and paid to Ann Hamill, the appellant, in full for her claim for moneys advanced to the decedent in his lifetime; and that the costs of this appeal be paid out of the fund for distribution.