text:
    NORTHAMPTON COUNTY.
    January Term, 1882,
    No. 274.
    March 9th, 1882.
    Butz versus Butz.
    1. The intention of a testator is to be collected not from any particular or detached clause of the will, but from the whole taken together.
    2. A testator directed all the residue of his estate to be converted into money and to be divided into three hundred and sixty-five shares, and further directed that “all notes, bonds, mortgages, or other obligations, of whatsoever nature or date the same máy be, I hold against my four children, named in this my will, shall be charged and deducted from their prospective shares, except the judgment which I hold against my son John Peter Butz, dated April 1st, 1876, for $4200.” He then bequeathed to a trustee, “ out of the money representing one hundred shares of the three hundred and sixty-five shares mentioned in the third article of my will, which is to be the bequest for the benefit of my son John Peter Butz and his children, the sum of eleven thousand dollars,” upon certain trusts. There were devises and bequests indicating an intention of the testator to provide equally for his children, according to their respective ages. Held, that it was the duty of the executor to collect the judgment of $4200 against John Peter Butz and divide the proceeds with the rest of the estate.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Northampton County.

    Rule upon Thomas F. Butz, executor of the last will and testament of Thomas Butz, deceased, to show cause why the execution upon a judgment entered upon a warrant of attorney against John Peter Butz should nof be set aside.
    On the 15th of April, 1876, Thomas Butz entered up a judgment for $4200 upon a bond and warrant of attorney executed to him by his son John Peter Butz. Thomas Butz died in March, 1880, leaving personalty alone amounting to over $90,000, and considerable real estate. Plis debts did not exceed $3000. His executor issued an execution on the judgment, and levied upon real estate of the defendant, on which it was a first lien, and -which was amply sufficient to secure it.
    The will of Thomas Butz, dated September 24th, 1879, provided, inter alia: “ And I would state that before disposing of my estate, that in former years I have given to my sons John Peter Butz and Thomas Franklin Butz, in farming stock and implements, and to my daughters Eliza Ann, intermarried with Daniel Troxell, and Elenora L. S., intermarried with Thomas Weaver, in household furniture and kitchen utensils, which property in my judgment placed all my children upon an equality in goods furnished by me. I have further given, as advancements to my four above-named children, to each of them at his or her arriving at the age of twenty-eight years, the sum of eight thousand dollars; and since then I have further given as advancements to my children as follows: To Thomas Franklin Butz one hundred shares of the capital stock of the Thomas Iron Company; to Eliza Ann, intermarried with Daniel Troxell, ninety-five shares of said stock, and to Elenora L. S., intermarried with Thomas Weaver, eighty-five shares of said stock; and one hundred shares of said stock, being certificate No. 2550, I give and bequeath to Thomas F. Butz in trust for my son John Peter Butz, as hereinafter directed. This statement I have made for the purpose of showing that I have thus far provided for my children equally according to their respective ages.....

      “Third. All the rest and remainder of my property, whether real, personal, or mixed, I order and direct that my hereinafter named executor convert into money, or its equivalent, for the benefit of my estate, as soon after my decease as may be convenient, to be divided into three hundred and sixty-five shares, and be distributed to and amongst my four above-named children according to their respective ages, and also a portion of the money representing the shares of my son John Peter Butz to be distributed to and amongst the children of my son John Peter Butz according to their respective ages.

      “Fourth. All notes, bonds, mortgages, or other obligations of whatsoever nature or date the same may be, I hold against my four children named in this my will shall be charged and deducted from their respective shares, except the judgment which I hold against my son John Peter Butz, dated April 1st, 1876, for $4200, recorded in Northampton County, No. 190.
    “ Fifth. I give and bequeath unto my son Thomas F. Butz the money representing ninety-five shares of the three hundred and sixty-five shares mentioned in the third article of my will, to him and his heirs forever.

      “Sixth. I give and bequeath unto my daughter Eliza Ann, intermarried with Daniel Troxell, the mon'ey representing ninety shares of the three hundred and sixty-five shares mentioned in the third article of my will, to her and her heirs forever.

      “ Seventh. I give and bequeath unto my daughter Elenora' L. S., intermarried with Thomas Weaver, the money representing eighty shares of the three hundred and sixty-five shares mentioned in the third article of my will, to her and her heirs forever.

      “Eighth. I give and bequeath unto Thomas F. Butz, out of the money representing one hundred shares of the three hundred and sixty-five shares mentioned in the third article of my will, which is to be the bequest for the benefit of my son John Peter Butz and his children, the sum of eleven thousand dollars, and also certificate No. 2550 of the capital stock of the Thomas Iron Company as before mentioned, in trust, however, that he the said Thomas F. Butz, who I hereby designate as the trustee of my son John Peter Butz, pay unto the said John Peter Butz during the time of his natural life, the interest on the said sum of eleven thousand dollars and all dividends declared on said No. 2550 certificate of stock, interest to be paid semi-annually and dividends as often as declared by the company, and for the faithful performance of said trust the said Thomas F. Butz is to enter into proper security, as may be directed by the Court of the county having jurisdiction; and after the death of my son John Peter Butz, which may happen either before or after my decease, then it is roy will and I hereby direct that the money, to wit, the sum of eleven thousand dollars bequeathed in trust for the said John Peter Butz shall be divided and distributed to and amongst the lawful issue of my son John Peter Butz in the same proportion and upon the same condition and in trust as made and provided in the ninth article o.f my will.

      “Ninth. The balance of the money representing one hundred shares of the three hundred and sixty-five shares mentioned in the third article of my will, after deducting the sum of eleven thousand dollars bequeathed in trust to Thomas F. Butz, for my son John Peter Butz, I give and bequeath unto my son Thomas Franklin Butz, in trust, however, for the children of my son John Peter Butz, said balance to be divided into four hundred and eighty shares, Sarah and Milton Butz each to have the interest during their natural lives of the money representing one hundred shares each, Maria and John Butz each to have the interest during their natural lives of the money representing ninety-five shares each, and Matilda Butz to have the interest during her natural life of the money representing ninety shares, and for the faithful performance of said trust the said Thomas F. Butz is to enter into proper security as may be directed by the Court of the couuty having jurisdiction, said money to be invested upon first mortgages in farm property; and I further order and direct that if the said trustee and cestui que trusts should deem it advantageous, real estate may be purchased with said trust-money, such real estate to be for the benefit of said cestui que trusts for and during the term of their natural lives; and I further will and direct that the trust-money bequeathed to my grandchildren of my son John Peter Butz after their respective deaths shall be divided to and amongst their issue, if any, share and share alike. Should any of the grandchildren above mentioned die without issue, then the share of such grandchild shall be divided to and amongst the surviving brothers and sisters share and share alike to them and their heirs forever.
    “ Tenth. It is my will and I hereby direct, that after the death of my wife, Maria Elizabeth Butz, the sum of fifteen thousand dollars set apart, the interest of which she is to receive during her natural life, and the house and lot or the money thereof if it should be converted into cash by her, is to be divided into three hundred and sixty-five shares.

      “Eleventh. It is my will and I so direct, that my son Thomas Franklin Butz shall have the money representing ninety-five shares of said estate bequeathed to my wife, to him and his heirs forever.
    “ Twelfth. It is my will and I so direct, that my daughter Eliza Ann shall have the money representing ninety shares of said estate bequeathed to my wife, to her and her heirs forever.
    “ Thirteenth. It is my will and I do direct, that my daughter Elenora L. S. shall have the money representing eighty shares of said estate bequeathed to my wife, to her and her heirs forever.
    “ Fourteenth. I give and bequeath out of the money representing one hundred shares of the said estate bequeathed to my wife, to my son John Peter Butz, the sum of one thousand dollars, and the balance of the money, after deducting the sum of one thousand dollars, I give arid bequeath to my son Thomas Franklin Butz, in trust, however, for the children of my son John Peter Butz, to be divided amongst them and to be for the same intents and purposes as is provided in the ninth article of this my will.”
    The Court below, Perder, A. L. J., discharged the rule, saying, inter alia:

    “The grand maxim in the construction of wills is that the Court is bound to find out the intention of the testator, if it be possible so to do, and to make such construction as will effectuate that intention. This intention is to be collected not from any particular or detached clause of the will, but from the whole taken together.
    “A careful examination of this will reveals an intention upon the part of the testator to provide ‘equally for his children according to their respective ages.’ This is shown by the legacy of the certificate of stock for one hundred shares of the capital stock of the Thomas Iron Company, to Thomas F. Butz as trustee for John P. Butz, for the ‘purpose thus far of providing for his children equally according to their respective ages.’ It is shown by the division of his estate, after deducting the devise to the widow, into three hundred and sixty-five shares, which is afterward subdivided ‘ according to the respective ages ’ of his children. In point of fact, his estate is not divided equally among his children. He takes into consideration in the division their ages. Flow he arrives at the different fractions of his estate, how be apportions the different shares according to the ages of his children, is not apparent from the will, but that the calculation is based upon an effort to provide for them equally in the division of 'his estate, having in'view the difference in their age, is manifest throughout the whole will. After the division of his estate into four parts, ‘according to the ages of his children,’ the ‘ bequest to John Peter Butz and his children’ is not devised to John Peter Butz, but in part to Thomas F. Butz in trust for John Peter Butz, after his death in trust for the children of John Peter Butz, and after their death to their children, and in part to the use of the children of John Peter Butz with remainder to their children. This is a difference as to the disposition of ‘the bequest to John Peter and his children,’ not a difference as to the amount he and his children would receive. Even if the intention to provide equally for his children was not apparent from the will itself, it has been held ‘ that when the meaning of a will is doubtful, the rule of equality among children must be taken as a guide to its interpretation:’ Malone v. Dobbins, 11 Harris, 296; Weber’s Appeal, 17 Penna. Stat. Rep., 474; Minter’s Appeal, 40 Penna. Stat. Rep., 111. We start, therefore, by finding that it was the intention of the testator to divide his estate into four shares, making the only difference in the shares the one based upon the difference in years of his four children.
    “The testator charges all the ‘notes,bonds,mortgages, or other obligations, of whatsoever nature or date the same may be,’ held against his children, against their respective shares of his estate, ‘ except the judgment which I hold against my son, John Peter Butz.’ Why does he make this distinction between this particular debt of his son John and the debts due from his other children? Is it because he means to discharge the debt due from John in the judgment, and thus give to John $4200 more than to the other children? This is contradicted by the intention of the testator, manifested throughout his will, to make the only difference in the four shares the difference in age of his four children. He devises nothing to John Peter Butz from which the judgment could be deducted; one of the four shares the testator devises to John Peter Butz, his children and grandchilden, providing that the said John Peter Butz shall have the'interest on but $11,000 of said share, and no more. The residue of this share being devised in trust for the children of John Peter, with remainder to their children, ‘ which is to be the bequest for the benefit of my son John Peter Butz and his children.’ The testator speaks of this as being the bequest to John Peter Butz and his children. It does not say this together with the judgment which I hold against him shall be the bequest, but speaks of this portion as ‘ the bequest.’ For some reason, which does not appear from the will, the testator does not desire to permit his son, John Peter Butz, to control the principal, or any portion of the principal devised for the benefit of himself and children, and hence it would appear that he desires this judgment paid by his son John, and, if not paid, then collected by legal process from the real estate upon which it is a lien, and the bequest for the benefit of his son John and his children to remain intact, in such shape that he cannot expend any portion of the principal of said share. The testator does not mention in any way the judgment in connection with the bequest to his son John Peter Butz and his children. He does not except the judgment when he directs that his estate, after deducting the devise to his widow, ‘shall be divided into three hundred and'sixty-five shares, to be distributed among his four children, . . . according to their respective ages.’ This balance so to be divided includes all the notes, bonds, mortgages, and other obligations due from all the children, and, before directing the same to be divided as set forth in the third section of the will, he directs that this balance shall be converted into money, or its equivalent. A literal observance by the executor of this item would necessitate the payment by each legatee of the debts due from him, and the receipt by him of his entire share without any charge against it. Seemingly to avoid this, lie directed in the fourth item of his will that all notes, bonds, etc., due from any of his children shall be deducted from their share. In point of fact, he directs his executor to take such debts into account as assets of the estate, and afterward to deduct the amount from their share in the distribution, without actually collecting them.
    “ ‘Except the judgment due from John Peter Butz.’ That is, the balance of his estate is to be converted into money and divided, etc., etc. The debts due from the legatees shall not be collected from them, except the judgment due from John Peter Butz. Therefore the judgment against John Peter Butz, under the third item of the will, will have to be converted by the executor into money, or its equivalent, and be divided with the rest of the estate as is therein directed.”
    The defendant then took out a writ of error, assigning that the Court erred in not granting the prayer of the petitioner to set aside the execution, and to restrain the plaintiff from issuing execution in the future.

      Edward J. Fox, for plaintiff in error.
    The decision is based on the idea that the testator meant to divide his estate equally among his children. There is nothing in the will to warrant the assumption. The fourth and third clauses show that the fund to be divided was to be composed of the proceeds of sale of his realty and personalty, of the stock specifically bequeathed in trust, and of the obligations held against his four children, with the one exception of the judgment held against John Peter Butz.
    In the opinion of the Court below, the testator intended to have his son sold out by the sheriff* and deprived of a home, and has not awarded him the privilege of having the debt set oft* against his legacy as he did in the case of the other children.
    This interpretation causes the amount of the judgment, when received, to be added to the residuary fund and distributed, which the will says plainly shall not be done: 2 Williams oh Executors, 1119; Eden v. Smyth, 5 Yesey, 341; Aston v. Pye, 5 Yesey, 350.

      Morris L. Kauffman, for defendant in error.
    Doubt might arise under the fourth clause if alone, but the construction must be that which is consistent with the whole scheme of the will: Middleswarth v. Blackmore, 74 Penna. Stat., 414.
    The testator desired to distribute his estate according to his own idea of equality. The shares were to be proportioned according to the respective ages of the children.
    Taking the scheme of the testator and all the other provisions of the will into consideration, the fourth article should be construed to mean, that all claims against his children who receive their portions absolutely should be deducted from their respective shares, but the share of John Peter Butz being given entirely into the hands of trustees, he has no share from, which the judgment can be deducted, therefore the executor is to collect the same according to the thii'd article, which directs that “all the rest and remainder of my property, whether real,personal, or mixed, I order and direct that my hereinafter named executor convert into money, or its equivalent, for tbe benefit of my estate, . . . to be divided into three hundred and sixty-five shares,” etc.
    If the testator had intended to extinguish the debt, and release John Peter Butz from the obligation to pay the judgment, the testator would have excluded it from the assets of his estate, which he directs to be divided into three hundred and sixty-five shares.
    Under the will, none of the claims which the testator held against his children are to be excluded from the assets.
    If John Peter Butz would have been released from the payment of this judgment, then he would have received $4200 more than the one hundred shares, as his portion, and consequently the decedent’s estate would not have been equally divided among his children according to their respective ages.
    The testator distinctly says in the eighth article, that the one hundred shares are “ to be the bequest for the benefit of my son John Peter Butz and his children.” Nowhere in the will does it appear that he is to receive in addition thereto the $4200 secured by the judgment: Malone v. Dobbins, 11 Harris, 296; Weber’s Appeal, 17 Penna. Stat., 474; Minter’s Appeal, 40 Penna. Stat., Ill; Horwitz v. Norris, 10 P. F. Smith, 261.
    March 20th, 1882.
   — Per Curiam:

We affirm this judgment upon the opinion of the learned judge in the Court below.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    July Term, 1881,
    No. 27.
    The First National Bank of Bethlehem versus Peisert.
    1. Knowledge acquired by the president of a bank in the course of its business that moneys deposited with it by a depositor in his individual account belonged to an estate of which he was the assignee for the benefit of creditors, affects the bank with notice.
    2. Such moneys cannot be appropriated by the bank to the payment of notes held by it, made or indorsed by the depositor, where the president has such knowledge, though no actual notice of the trust has been given to it.
    3. Moneys so appropriated may be recovered back by the assignee.
    4. Harrisburg v. Tyler, 3 W. & S., 373, followed.

      Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Northampton County.

    Assumpsit by C.. Edward Peisert, assignee for the benefit of creditors of I. L. C. Miller, against the First National Bank of Bethlehem, to recover a balance of moneys deposited with the defendant, and alleged to belong to the said estate.
    Upon the trial in the Court below, before Meyers, P. J., the facts appeared to be as follows:
    November 4th, 1873, Miller and wife made an assignment for the benefit of creditors to Peisert, the plaintiff. The assigned estate consisted mainly of real estate in Bethlehem. For several years before the assignment, Peisert had kept an account with the defendant in his individual name. In February, 1876, Peisert sold the real estate, — a lot to Samuel H.'Young for $325.25, and another property to John Walt-man, of Philadelphia, for $12,158.10. The latter was to pay ten per cent, in cash, and the balance in October following. February 16th, 1876, Peisert deposited on his individual account with the defendant:
    Cash,..........$ 50
    Check of Mrs. Rebecca Miller, wife of the assignor, 400
    Check of John Waltman,. . . . ' . . 750
    ’ - $1,200
    On June 15th, 1876, he deposited .... 350
    October 6th, 1876, he deposited:
    Cash,..........$ 400
    Check of Mrs. Rebecca Miller, . . . 1100
    Check of J. Waltman,....... 9600
    - $11,100
    These amounts were the proceeds of the sale of the real estate belonging to the assigned estate, and were entered in the books of the bank as “ cash.” The credit balances of Peisert’s account with the bank were at different dates as follows:
    December 30th, 1876,.......$10,369 67
    April 21st, 1877,........ 6,701 53
    December 26th, 1877,....... 6,364 68
    December 28th, 1878,....... 5,402 44
    At the latter date the cashier of the bank, by order of the board of directors, charged against this balance four unpaid promissory notes, some drawn and others indorsed by Peisert, payable at the bank, and held by it, amounting to $3854.16. This entry was made without the consent of Peisert, and reduced his balance to $1548.28. February 4th, 1879, another note of $227.06 was in the same way charged against him, and at his request the balance of $1321.22 was transferred to a new aecouut, in the name of “O. E. Peisert, assignee of I. L. C. Miller.” This sum was subsequently reduced by checks to $1076.12.
    The assignee filed an account, and the auditor, in June, 1879, awarded to the defendant, as its pro rata of an in deb tness due to it by the assignor, the sum of $1116.78, and the balance of $11,140.25 to various other creditors. The assignee demanded from the defendant the amount of the moneys appropriated to the payment of the notes held by it, which was refused.

      G. E. Peisert, for the plaintiff, testified in substance:
    “The assignment was made, I think, some time in 1873, and I kept the property up to some time in 1876. I do not distinctly recollect now, but I think I was then notified by the bank that I must sell it. I recognized Mr. C. A. Luckenbach at the sale. He was then president of the First National Bank. The bank was a creditor of I. L. C. Miller. I think he (Luckenbach) said that he bid $10,000 on the property.”
    “ Q,. When did you first find out that those notes were charged against you on the books of the bank ?
    “ A. It seems to me, on the 4th of February.- I got the hook at that time. That was the first I knew of it. I knew of it then by looking at the book, and when I saw it, as a matter of course, it troubled my mind, and I went over to the bank — I think I went to the cashier — and I told him that I saw that those notes were charged against me, and that the money belonged to the Miller estate, and that I thought it was wrong, and I wanted it changed then into another account, — into an account of I. L. C. Miller, which they did. It appears here.
    “ Q. Bid you ask him to change the whole account or only the balance ?
    “ A. The balance which was remaining. At that settlement the notes were handed to me. I got them back, and I. protested against the proceedings. I have those notes here, except one on which 1 could not lay my hands.”

      William Leibert, for the plaintiff, testified : •
    “ I became security for Mr. C. E. Peisert, assignee of the estate of I. L. C. Miller, for the benefit of creditors. I signed his bond. I had a conversation with the president of the Eirst National Bank in relation to my suretyship. That was in the winter of 1877-78, if my memory serves me right. I am not certain where the first conversation took place, whether he called at my place or called me into his room. He told me he wanted to make me aware of the fact that Mr. Peisert had deposited the funds of the I. L. C. Miller estate, and that those funds were getting less, and that it was right I should know it. I do not know now whether he told me how much of the fund was still left in the bank, but he told me that at several other times. He told me I should take care, and also that it was necessary I should know it. The first time he mentioned the amount, I think he said there was still $7000 remaining out of the whole amount. Then there was a conversation after that which I think was in the president’s room of the bank, and he went over the ground again, saying that the funds were still less. He might then too have said how much was left then, but I am not positive about that, whether he told me more than once. He got the big book, and we went over the account and counted up what the amount really was. He said that the money belonged to the estate of I. L. O. Miller; and he told me that Mr. Peisert had deposited all those funds in his individual name, and was drawing upon them. He did not say anything about what the bank was going to do. But I knew myself that Peisert owed the bank; I was indorser on one of Peisert’s notes to the bank. He spoke to me more with reference to the suretyship than with reference to my being on the notes. I told him at one time that I held a sort of a security in the shape of a mortgage on Peisert’s property, which I did not consider worth a great deal at the time. He did not ask me for that mortgage, but I think I offered it to him. I thought, since I was "on Peisert’s bond, if the bank would take that mortgage off my hands, so that I would not have anything more to do on account of being on Peisert’s bond, I would be glad. Peisert did not know anything about this, to my knowledge.”

      I L. G. Miller, for the plaintiff, testified:
    “ I am the assignor in this case. I made a genei’al assignment for the benefit of creditors in 1873. My property immediately adjoined the bank building on the north side.
    “ Q,. Did you have any conversation with Mr. Luckenbach, president of the Eirst National Bank, relative to the deposits of your assignee ?
    “ A. He stopped me one time in front of the bank, at least four years ago, and spoke to me about it. It was about the time, I think, when these funds were to be distributed that he asked me. I said I could not tell. He mentioned then that so much was in bank of the fund. I think he said there was ten or seven thousand dollars; I can’t tell which, but I am positive it was at least seven thousand. I was surprised, and I said, Why where in the world is the balance?’ He did not say where the other was. It surprised me. He said there was seven or ten thousand dollars. I think it was seven thousand, but I am not positive. It was one of the two. This was at least four years ago.
    " We have had conversations since, — that is, as to Mr. Peisert’s using the money. He said that Peisert was using the money, and so they had gone to work and charged up these notes.
    " Q. Hid he say that he knew that it was money that belonged to your estate ?
    " A. He said, about the seven or ten thousand dollars,’ that it was my money. Of course, that was the conversation ; that was what started it. Since that time he merely said that Peisert had been using this money; and that as> he was using it, and it was going in that way, they had! charged up these notes against him; that they seen it was. going, and so they charged them up. I was present at the sale of my house at the Sun Hotel. I saw Mr. Luckenbach. there, but I can’t say that I saw him bid.”

      Charles A. Luckenbach, for the defendant, testified :■
    " In 1876, and for some time previous to that, I was-president of the First National Bank of Bethlehem.
    " Q. State whether you had any knowledge, at the time this' $1200 and this $11,000 were deposited, that those moneys belonged to the assigned estate of I. L. C. Miller, and- if so, how you obtained that knowledge?
    “A. I did not have any such knowledge, and' for the reason that such things are deposited with, the teller, and do not come under the observation of the- president. At that time, or about that time, I had not examined Mr. Peisert’s account.
    " Q. Did you have a conversation with Mr. Leibert about this matter, and if so, state what it was, how it arose, and what was said ?
    "A. Well, I do not doubt but that I had conversations with him and in regard to this matter. The exact conversations as they took place I could not repeat, but I can give you the substance of them. I knew at the time that Mr. Peisert was the assignee of Miller, which everybody knew. I knew also that he sold that property for the amount of, in the neighborhood of, $12,000. That is what I did know.. I knew that he was the assignee of Miller, and that Miller’s debts amounted to quite a considerable sum; I guess, I am not sure, but I think they amounted to a great deal more than his estate amounted to. As I always do once in a while, I would look over the ledger, to see what is going on, and so I noticed that Mr. Peisert’s credit which he had there was getting less and less: and I knew at the same time, too, that Mr. Peisert was financially in a very bad condition; and knowing all these things, and knowing also that Mr. Leibert was interested quite a good deal in Peisert, that he was on notes for him in our bank, ancj. all this kind of thing, and Mr. Miller being a neighbor, these men would frequently come and talk with me. Whether they came to me at those conversations, or I went to them, I can’t remember, but most likely they would come to me and ask me about it, and so I undoubtedly told them that Mr. Peisert was using this money which he had to his credit individually, and I did not know that Peisert had any other money, and that this money was his, and he could do as he pleased with it, and they being bondsmen, so I just told them of it, that Peisert was using this money for his own purposes, and then I ■thought they might do as they pleased about it after I had ■told them.”
    Defendant proposes to prove by the witness that he never notified the board of directors of the First National Bank of Bethlehem, that any money was deposited in that bank ■byC. E. Peisert belonging to the assigned estate of I. L..C. Miller.
    Objected to on the ground that the knowledge of the president, acquired in the course of business, is the knowledge of the bank, and, further, that it is irrelevant.
    The ohjection was sustained, and the defendant excepted.
    The plaintiff presented the following point, inter alia, which the Court affirmed:
    Fourth. If the bank had knowledge that the funds against which they charged Peisert’s notes were the funds of the assigned estate of I. L. C. Miller, and charged up said notes with such knowledge, the true owner'is entitled to recover from the bank the amount of said notes, together with interest from the time of demand, to wit, from July 1st, 1879.
    The defendant presented certain points, inter alia, which, with the answers of the Court, were as follows:
    Second. As the money was deposited in the defendant’s bank, in the name of C. E. Peisert, the bank had the right to pay out of the funds on deposit any notes due to the bank by him, or upon which his liability was fixed as indorser for others.

      A. This point is affirmed, unless the bank had knowledge that the balance of the money in bank was part of the trust-fund of the estate of I. L. O. Miller.
    Third. The bank is not liable in this case, unless actual notice was given to them, before the payment of the checks of C. E. Peisert, or the delivery to him of the notes due, that the monev deposited belonged to the assigned estate of I. L. C. Miller"
    A. Not affirmed. The law does not require notice, but that knowledge is sufficient.
    Fourth. The plaintiff in this case cannot recover anything from the bank, unless it appear that there is a balance remaining in its hands, after the payment of the checks of C. E. Peisert and the notes on which he was drawer or indorser, and which were due when charged to his account, and the amount of the dividend upon the claim of the defendant against the assigned estate of I. L. O. Miller.
    A. We cannot affirm the point as drawn. We affirm the point, if you find the bank had no knowledge, at the time it appropriated the money to the payment of the notes mentioned in the point, that the money was part of the trust-estate of I. L. C. Miller.
    Fifth. There is no evidence in the case that any of the creditors of I. L. C. Miller, who were awarded dividends by the auditor, are unpaid, and the plaintiff, therefore, cannot recover.
    A. This point is not affirmed. It is immaterial whether the creditors of Miller are paid in full or not.
    Sixth. The deposits being in the name of C. E. Peisert, the bank had the right to treat the funds as his property, charging up all his checks and matured notes payable at that bank, until notice was given to the bank that another person claimed the funds.
    A. Not affirmed. It is not necessary that notice should have been given to the bank, but, if it had knowledge that it was a trust-fund, that was sufficient.
    Seventh. Knowledge, on the part of the bank officers, that trust-funds were included in the account of C. E. Peisert, would not prevent the bank from paying out the funds in answer to his checks, drafts and notes, made payable at said bank, until after notice given not to pay.
    A. This point is not affirmed as drawn. So far as it relates to the payment of checks drawn by Peisert, it is affirmed, and to so much as relates to the application of money to the notes of Peisert, it is also affirmed, unless you find that the bank had knowledge at the time the money was applied that it was part of the trust-estate of I. L. C. Miller.

      Eighth. Under all the evidence, the verdict must be in favor of the defendant.
    A. Not affirmed.
    The Court further charged the jury, inter alia:

    It is claimed by the plaintiff that this was an improper and illegal appropriation of this money by the bank, for the reason that it was trust-money, that the $5402.44 was part of the trust estate of I. L. C. Miller, for the benefit of creditors.
    It is contended on the part of defendant that C. Edward Peisert cannot recover in this ease as assignee, for the benefit of creditors of I. L. C. Miller, for two reasons: Eirst, because the account between the bank and Peisert was an individual account, and, second, that this estate has been partly settled up, that he has filed his account, that an auditor has been appointed, and that distribution has been made to the creditors of I. L. C. Miller.
    [We say to you, that, where a person makes an assignment to another for the benefit of creditors, the assignee represents the assignor. He does not represent the creditors, and so the Supreme Court of this State has held in many cases. He stands in the place of the assignor, I. L. C. Miller, and in a proper case, where money is in the hands of a third person, that is trust-money, the only person who has a right to bring an action, that is, if it was trust-money which was at one time in the hands of the assignee, is the assignee himself. If he wants to recover a debt that is owing to the assignor, in such a case, the suit must be brought in the name of the assignor, I. L. C. Miller, to the use of C. Edward Peisert.
    With regard to this action, assuming for the present that there was a right of action in somebody against the Eirst E ational Bank of Bethlehem, we say to you as a matter of law that C. Edward Peisert, as assignee, under the facts, as presented by him, was the only person who was legally entitled to bring an action against the bank.]
    * * * * * *
    Now, the inquiry is, was this balance of five thousand four hundred and two dollars and forty-four cents part of the trust-money at the time these notes were paid by it? If it was, then the next inquiry will be, was it legally appropriated in the payment and discharge of these notes ?
    [It is contended by the plaintiff, that, if the bank had knowledge before the appropriation of this money to the payment of these notes, that then such appropriation was illegal, unless it was by the consent and direction of C. Edward Peisert. On the part of the defendant, it is contended that mere knowledge is insufficient, and that the defendants were legally authorized, even though they knew that this was trust-money, to appropriate it to the payment of these notes, unless somebody, to whom it legally belonged, gave the bank notice not to make such an appropriation, because it appeared upon their books as having been deposited in his individual name. Now I confess that the law upon this subject is not very clear, but, as we understand it, we shall hold for the purpose of this trial and so charge you that knowledge on the part of the defendant that the five thousand four hundred and two dollars and forty-four cenfn was part of the trust-estate of I. L. C. Miller for the benefit of creditors, was sufficient to prevent them from appropriating this money in the discharge and payment of the notes held by the bank, without direct authority from C. Edward Peisert. Therefore, the only question for your consideration on this branch of the case is, whether the defendants had knowledge that these five thousand four hundred and two dollars and forty-four cents was part of the trust-estate of I. L. C. Miller.]
    [There is no doubt that, notwithstanding it was trust-money, if C. Edward Peisert had drawn a check upon the bank for any amount and for his own use, and not for the use of the trust estate, and had presented it to thé bank, the bank would have had to pay it, and the law would have protected them in so doing. The decisions of the Supreme Court go as far as that. But that Court has not exactly decided whether the bank can do that where they have knowledge that it is a trust fund. Still I suppose, that, even if they had knowdedge that it was a trust fund, yet, if the assignee had prepared his check on the bank for the payment of a certain amount of money, the bank would have been justified in paying it.
    It is contended on the part of the defendant that two of .the notes were drawn by C. Edward Peisert, and that, if they were payable at the time the money was appropriated, the bank had a right to appropriate the money for the purpose of protecting the indorsers. ,
    On that point we say to you that if the bank knew that this was trust-money they were not bound to appropriate it. It was their duty to protest the notes, and if. they had sued the indorsers and they had set up as a defence that there was money enough in the bank, the latter could have answered that it was trust-money and that plea would have been sufficient.]
    Of course if the money is not trust-money, and it was in point of fact the individual money of Peisert, then, in a case like that, I agree with the learned counsel for the defendants, that where a note of the inaker, payable at the bank, matures and there is a sufficient fund there belonging to the maker, the bank is bound to appropriate that fund, if sufficient to pay the note, for the purpose of protecting the indorser.
    The argument would not apply, however, to a note on which he was only an indorser. But we say to you, so far as these notes are concerned, that the bank, if it knew at the time when it appropriated the money that it was part of the trust fund of I. L. C. Miller’s estate, that then it had no right to appropriate.
    Now, had they knowledge? That is the question. Milder, the assignor, testifies that he had a conversation with Mr. Charles Luckenbach, who was the president of the bank, about four years ago, in which they spoke about Mr. Peisert having money in the bank, that there was then about ten thousand dollars in the bank yet, or seven thousand, I do not recollect exactly which, and that they spoke about it as part of the Miller trust fund. That is testified to by Miller. It is claimed on the part of the plaintiff that Miller testified it was expressly stated in that conversation with Luckenbach, that the money which Peisert was drawing out was trust-money of the estate of I. L. C. Miller.
    Mr. Leibert was also examined as a witness, and he testified that he had a conversation in 1878 with Luckenbach, and that in that conversation Mr. Luckenbach spoke of the conduct of Peisert in drawing out this money, and stated to him that there was then a certain balance remaining of four or five-thousand dollars. The plaintiff claims that both of these witnesses testify explicitly to declarations made by Mr. Luckenbach, that the conversations were with reference to this trust fund of Miller in the bank at the time.
    Mr. Luckenbach has been examined ou the other' side. He says that he did have conversations with these parties, but that he never said anything to them of the trust fund of the Miller assigned estate. He testifies that he knew that Mr. Leibert was somewhat involved with Peisert as an indorser, and that he afterwards heard that he was upon his bond as assignee, and that he spoke to him and Miller gen-' erally upon the subject of the conduct of Peisert in drawing money out of the bank, but that he did not say anything at all about its being the fund of the Miller assigned- estate, giving as a reason -why he did not, because he did not know as a fact that Peisert had deposited that money in the bank at that time.
    [The plaintiff in this case, before he can recover, must satisfy you by the weight of the evidence, not only that the bank appropriated this money in the payment of the notes, but that when they appropriated it the bank,- through its officer, Charles A. Luckenbach, had knowledge that this fund belonged to the estate of I. L. C. Miller for the benefit of creditors. The plaintiff must show that. If he fails to satisfy you of that fact, then he cannot recover in this action. If he satisfies you of that fact, then he is entitled to recover the amount of money appropriated to the payment of the five notes, together with interest.] The plaintiff will give you a statement how much that is, and your verdict will be for that amount.
    If, however, on the other hand, the plaintiff has failed to establish that fact of knowledge, then your verdict will be in favor of the defendant.
    Now, one word more upon this subject of knowledge. The evidence upon which the plaintiff relies, in this case, while it is not claimed that express notice was given to the bank not to appropriate this money or to pay it out, but that there are certain circumstances connected with tírese conversations that you have a right to take into consideration whether from them you cannot infer notice.
    You will bear in mind that the bank was a creditor also of I. L. C. Miller, and if you believe the testimony of Miller and Leibert, that this conversation took place in the way testified to by them, then it is your duty to inquire what was the object and purpose of Mr. Luckenbach in giving these parties uotice. They,testified that he told them certain things about the conduct of Mr. Peisert, and that after he had done so, he thought they might do as they pleased— “ might take their chance about it.” Of course, Miller and Leibert are interested. Miller is the assignor, whose interest it is to have- his debts paid. Mr. Leibert is interested on account of his suretyship for the assignee. If these parties had gone to the bank and told Mr. Luckenbach not to appropriate the money, he would have been bound by such notice.
    [When Mr. Luckenbach volunteered'to inform them that Peisert was appropriating this money to his own use, and if you believe the witness when he testified that he, Luckenbach, knew that Peisert did not have much of an estate himself, and that he was financially involved, and made declarations to that effect, and at the same time spoke of the money in bank as the Miller fond, then, the question arises, could not Mr. Miller and Mr. Leibert treat that conversation as an intention on Luckenbach’s part, not perhaps to prevent Mr. Peisert from appropriating this money to his own use, but that he himself would not appropriate that money to the payment of the debts of Peisert to the bank. We refer to this as bearing upon the question whether or not from it you can infer some sort of notice to Mr. Luckenbach, as to the application and appropriation of this money.
    If you find from the evidence, either that there was knowledge by the bank that there was trust-money, or an implied notice not to appropriate it, and the plaintiff has established that by the weight of the evidence, then he is entitled to a verdict for the amount of the notes with interest from the time the money was appropriated. If he failed to establish it, then your verdict will be for the defendant.]
    April 25th, 1881. Verdict for the plaintiff for the amount of the notes and interest, on which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors the answers to the points as above, the portion of the charge within brackets, and the rejection of the evidence offered.

      Robert E. Wright, Jr., and Edward J. Fox, for the plaintiff in error.
    When an assignee for the benefit of creditors deposits the funds of the estate in his own name, it operates as a conversion, and renders the assignee the debtor of the estate : Commonwealth v. McAlister, 4 Casey, 481; Bank v. King, 7 P. F. Smith, 202; Stair v. Bank, 5 P. F. Smith, 868.
    The bank could not set up the unasserted title of the cestui que trust: Bank v. Mason, 9 W. N. C., 265 ; Laubach v. Leibert, 6 Norris, 62.
    No matter what may have been the knowledge of the bank, Peisert could have diverted the fund to any use he wished by check.
    A bank has the same right to charge against the account of the depositor his note made payable at the bank as his check: Marsh v. Bank, 34 Barb., 298 ; Reed v. Penrose, 12 Casey, 235.
    It was the duty of the bank to charge up these notes at maturity: Bank v. Mason, 9 W. N. C., 265 ; Laubach v. Leibert, 6 Norris, 62.
    In no event could there be a recovery by the assignee, suing in his capacity as such. It could not be recovered by the trustee, who had himself made the deposit and used the fund. Only the cestui que trust could intervene.
    Knowledge, to affect the bank, must be brought home to the directors; Bank v. Rex, 7 W. N. C., 167 • see, also, Jackson v. Bank, 10 Barr, 61; Paxson v. Sanderson, 3 Phila.,' 303; Bank v. Macalester, 9 Barr, 475; Bank v. Jones, 6 Wr., 536; Frazier v. Bank, 8 "W. & S., 18; Stair v. Bank, 5 P. F. S., 365.

      W. E. Dosier, for defendant in error.
    If the bank knew of the trust, they had no right to appropriate the money to their own use: Bank v. Macalester, 9 Barr, 482; Davis v. Bowsher, 5 T. R,, 492; Jarvis v. Rogers, 15 Mass., 397; Frazier v. Bank, 8 W. & S., 18 ; Bank v. Tyler, 3 W. & S., 373 ; Smuller v. Canal Co., 37 Penna., 68 ; Bank v. Jones, 42 Penna., 536.
    March 27th, 1882.
   — Per Curiam:

That the president of the bank knew that the moneys deposited by the plaintiff were the funds of the assigned estate of Miller, was a fact of which there was ample evidence, and it was fairly submitted to the jury. This knowledge he acquired in the course of the business of the bank. That from such knowledge the bank is affected with notice is very clearly settled in Harrisburg v. Tyler, 3 W. & S., 373, and other cases.

Judgment affirmed.


text:
    January Term, 1882,
    No. 65.
    March 8th, 1882.
    Appeal of John Horner et al.

    The payee and holder of sealed notes, about ten days before his death, said to a third person that he did not want the maker to pay them. Within forty-eight hours of the time of his death he sent for the maker to draw his will. He directed the notes to be deducted from an estimate of his personalty, and told the maker that the notes were his; that they were in a drawer in another room ; that the key of the drawer was in a secretary in the room where he lay, and told him to get the notes. He appointed the maker one of the executors of his will. After the departure of the maker he told his housekeeper that he had now fixed his things the way he wanted them, and that he had given the notes to the maker (naming him). Four or five days after his death the maker took possession of the notes. Held, That there was no delivery of the notes sufficient to render the gift complete.

      Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of John Horner and Samuel Smith from the decree of the Orphans’ Court of Northampton Comity, confirming the report of an auditor appointed to distribute the estate of Thomas Clendeunin, deceased.
    Thomas Clendennin died unmarried in 1879, leaving a will in which, after certain specific bequests and devises, he gave and devised the residue “ unto the children of my late sisters, Jane and Esther, to be shared equally amongst them.” Of this will he appointed as executors the appellants, John Horner and Samuel Smith. They filed an account, which was referred to H. W. Scott, as auditor, to settle and make distribution. The auditor reported, inter alia, the following facts:
    John Horner had borrowed money from the testator in his lifetime for Horner’s sister, which was eventually lost. As security for the loan Horner gave two notes, under seal, one for $1462.22, dated April 1st, 1875, at one year, and the other, dated April 2d, 1877, for $697.44, at one year. These notes were found by the executors among other papers of the testator in a bureau in the spare-room of his dwelling. Horner took the notes into possession at the time he found them, and claimed them as his own. This was five or six days after the death of the testator. Horner put the notes in his pocket-book and retained possession of them. They were produced before the appraisers, but were not included in the inventory or account.

      Samuel Smith testified, inter alia:

    “I had a conversation with'Mr. Clendennin about ten or twelve days before his death about these notes of John Horner’s. He was complaining of being sick some, but sat up. He was not very feeble. He told me that he didn’t want John Horner to pay back those notes any more. He said John got that money for his sister, and he says, ‘I guess that money is lost.’ He said,‘I can a-fford it better than John.’ He used these‘words: ‘I don’t want John to pay that money back.’ He had spoken to me before about the notes. I couldn’t say that he mentioned how much it was. He told me before that it was something like $2000. That was the only claim, and these the only notes he spoke about ever as holding against John. Didn’t have the notes out that day. He didn’t tell me to say that to John.”

      John Horner, having been called by the opposite party, and being recalled, testified, under objection as to his competency, as follows:

      “He (testator) asked me to write a will for him. I said I would; we got ready to go to work. First, he said, I should do some figuring, and make an estimate for him over his personal property. He handed me a memorandum of his papers — names of parties he had papers against. He said I should mark what I considered good and what had. I took the papers and made a list. I proved it up at his request to see what it amounted to. My notes were on the list he had. Then I commenced writing by his directions. While writing, he said he wanted to mention me in the will. While writing it, I said I would prefer to be not mentioned. Then he said the notes which he held against me were mine. Those notes, then, were not included in the estimate; he requested me to deduct them from the estimate I had made. He told me where the notes were. He said they were in the drawer in the other room; I think he said in the upper drawer. The key he said was in the secretary in that room where he was. He told me to get the notes; I said it was late, I would leave'them until I came. up again. He said very well, or something to that effect. When he told me to fet the notes, that was the time he told me where I could nd the key. I did not get up until after his death. I lived away from him about a mile and a half. The next day I had to go away from home, and Thursday morning I was getting ready to go up when they sent for me to say he had died. The first time I saw the papers was after the funeral, when I took possession of the notes in the way I have described.”
    Cross examined:
    “ He didn’t have any papers that day of the will except this memorandum. I didn’t see my notes......I didn’t see these notes of my own at all until four or five days after his death — until I had qualified as executor. They were for money which I had borrowed and not repaid. When I got the notes out after his death they were locked up in his bureau. Julia Lilly, his housekeeper, brought the key. The papers, my notes and others, as I remember now, were tied up in a bundle together. It had been a year or afterwards before when I last saw these notes. When I wrote that will I didn’t consider him that night in any danger. I wrote this will in the room at the west of the house ; the papers we found in the bureau in room at the west end of the house. Was not in that room at all the night I wrote the will.”

      Julia Lilly testified:
    “ I lived with Thomas Clendennin, deceased, in his lifetime, about thirty years. I was his housekeeper.....I went into Mr. Clendennin’s room that night after Mr. Horner left. That was the last time Mr. Horner was there before Mr. Clendennin’s death. I had some conversation with Mr. Clendennin. He said he had now fixed his things the way he wanted to have them. He had said John should go and get those notes; that John had said it was so late; that he would come another time and get them. He didn’t say anything more; I can’t remember that he said anything more. . . .
    " He said that these notes were for money that John had got for his sister, and that it was lost; now John should have it. . . . He said he.had now fixed his things the way he wanted it. Then he had said to John he should go over and get the notes. John had said it was so late he would come another time and get them. He then said he had given this money to John for his sister, now it was lost and he would let John have it. Don’t remember anything else.
    “ Q,. State whether or not he said anything about having given John the notes that night ? ”
    Objected to as leading question and for reasons stated above.
    “A. Yes; he said he wanted John to get the notes, but John said it was too late. That is all he said.”
    “ Q. State whether or not he said anything about telling John the notes were his?”
    Objected to.
    " He said John had better come up and fix his things. He said that John was to come up. He didn’t say what John was to do when he came up. He didn’t say that night anything about what he had done with the notes. He said that John should have those notes. I talked with Mr. Hamersley this morning and some time ago. I told Mr. Hamersley that Mr. Clendennin said to me, ‘ Now I have fixed my worldly affairs to suit me and I have given John Horner his notes, but as it was so late John said he could get them when he came over again. He can have them ; they are his,’ and Mr. Clendennin said that to me. That is all I remember.”

      Cross-examined. “ Mr. Clendennin began the conversation. The first thing he said, 41 have fixed these things the way I want them.’ I said nothing. He then said he had told John he should go over and get those notes. lie said John said it was too late. He said, 4 Come over another time.’ Then he said nothing any more. I have now said every word that Mr. Clendennin said. He said nothing else. This was Tuesday night, and he died early Thursday morning. He was sick then, but not bad. He didn’t lie down. The old man talked English. I don’t understand everything in English, but pretty near.”
    Counsel for the residuary devisees and legatees asked the auditor to surcharge the executors with the amount of these notes.
    The auditor found the facts to be :
    1. The language used by the decedent in relation to the supposed gift was in consequence of his expectation of approaching death, in his last sickness, but not indicating immediate or speedy dissolution.
    2. That the donor died wdthin forty-eight hours after-wards in the manner, substantially, as expected by himself, and that the supposed gift w'as not revoked in his lifetime.
    3. That he made and executed his last will and testament after making the supposed donation.
    4. That the donor did not deliver to the donee by manual tradition the supposed gift.
    5. That the donee had the power at the time of the supposed gift to induce into his actual possession the choses in action which were the evidences of indebtedness the donor intended to forgive.
    6. That these choses in action were in another and non-communicating room from the donor and the donee, tied in a bundle with other securities, locked in a bureau drawer, the key of which was in the room with the donor.
    7. That the key to this drawer was not delivered by manual tradition to the donee, nor taken into his possession, but that he was directed to get it by the donor.
    The auditor held that no title vested in the donee, and surcharged both of the accountants with $2804.85, the amount of the notes and interest.
    To this finding the accountants excepted, inter alia.

    The Court dismissed the exceptions and confirmed the report.
    The accountants then appealed, assigning that the Court erred in dismissing the exceptions and confirming the report.

      W. S. Kirkpatrick, W. E. Hosier, and JR. O. llamersley, for the appellants.
    The elements of a complete gift are: (1) Words or acts of present meaning importing an intention to give; (2) immediate surrender of dominion ; (3) acceptance by the donee; (4) irrevocability.
    Manual delivery is, perhaps, the most satisfactory evidence of these elements, and it may be insisted on as a matter of policy, except where these essential elements are otherwise clearly and satisfactorily shown. To lay down an unbending rule that manual tradition is the only proof of these elements of a gift is to ignore the principle, and seize upon a mere technical formula. It would seem upon first blush as if the principal cases in our Pennsylvania books established the inexorable rule that no gift could be complete without a corporal delivery of the thing, or in case of a debt, of the written security; but it will be found that in all the cases the difficulty was that there were not words of present meaning, or else there was an indication of purpose not to part with the entire control of the thing or security, or its taking effect was upon some future condition or event: Campbell’s Estate, 7 Barr, 100 ; Kidder v. Kidder, 9 C.,268 ; Mechling’s Appeal, 2 Grant, 158; Zimmerman v. Streeper, 25 P. E. Smith, 147; Trough’s Estate, 25 P. E. Smith, 115; Crawford’s Appeal, 11 P. E. Smith, 52.
    The case in hand shows a present intention to relinquish dominion and irrevocability. The language and conduct of the decedent indicated this, and his pains to impress upon Julia Lilly the idea of its being a completed transaction is confirmatory thereof. The notes were placed at Horner’s disposal on the night in question. lie accepted them and then left them in their place as his property. The testator, if they were still in any way in his possession, was as much a bailee or trustee as though he had gone through the mummery of taking them in his hands, depositing them in Horner’s hand, and then the latter returning them with a direction to keep them for him until he came again. As a matter of convenience Horner left them where they were: Crawford’s Appeal, 11 P. F. Smith, 52; Flowers’s Case, Noy, 67; Herr’s Appeal, 5 "W. & S., 494.
    In the analogous case of deeds it has been repeatedly held that there may be a delivery or passing of the title thereby, without the deed leaving the hands of the grantor: Chess v. Chess, 1 P. & W., 32; Blight v. Schenck, 10 Barr, 285; Stephens v. Rinehart, 22 P. E. Smith, 434; Diehl v. Emig, 15 P. E. Smith, 320; Morgan v. Malleson, 10 L. R. Eq., 475.

      Edward J. Eox, for the appellees.
    There was no release, cancellation or delivery of the notes: Campbell’s Estate, 7 Barr, 100 ; Kidder v. Kidder, 9 Casey, 268; Trough’s Estate, 25 P. E. Smith, 115.
    March 20, 1882.
   — Per Curiam:

Taking all the evidence there was no delivery of the notes sufficient to render a gift complete. There was no actual handing over of the notes to the donee. The alleged donor did not even deliver the key of the drawer where they were. He told the donee where the notes were and where the key was, but the donee never took possession until after the death of the donor. Our cases are all uniform and consistent upon this point: Trough’s Estate, 25 P. F. Smith, 115.

Decree affirmed and appeal dismissed at the costs of the appellants.


author: — Per Curiam :

text:
    July Term, 1881,

      No. 61.
    March 7th, 1882.
    Newhart versus Wolfe.
    1. There can he no assignmentof error to a judgmentforwantof an affidavit of defence after an appearance and acceptance of service of the writ by an attorney of the Court, upon the ground of want of authority of the attorney to appear and accept service.
    2. The authority of the attorney was to be determined as a matter of fact by the Court below.
    3. The action of the Court below in refusing to stay a writ of levari facias issued upon such a judgment is not reviewable in the Supreme Court.
    Before Sharswood, C. I.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Northampton County.

      Scire facias sur mortgage by Henry C. Wolfe against Rebecca Newhart and her husband Tilghman Newhart. An appearance was entered by an attorney of the Court. The service of the sci.fa. was accepted and judgment was entered September 1st, 1879, for want of an affidavit of defence, in the sum of $21-48.41. Tilghman Newhart died September 11th, 1880. An alias levari facias was issued March 28th, 1881. The same day Rebecca Newhart presented a petition to the Court, setting forth, that she had been induced to join with her husband in the mortgage by false representations; that she could neither read nor write, and was not acquainted with the contents of the instrument, and that the justice who took the acknowledgment did not examine her separate and apart from her husband ; and asking for a rule on the plaintiff to show cause why the judgment should not be opened and she be permitted to make defence and the execution be stayed.
    The Court granted a rule to show cause, which was subsequently discharged. A pluries levari facias was issued May 12th, 1881. On May 17th, 1881, Rebecca Newhart presented a petition setting forth that the scire facias upon which the levari facias was founded “ was never served on her the said Rebecca Newhart, and that she the said Rebecca Newhart never authorized any one to accept service thereof for her.”
    The Court thereupon granted a rule on the plaintiff to show cause why the judgment should not be set aside. Upon the rule the petitioner testified substantially as set forth in her petitions. June 8th, 1881, the rule was discharged.
    Juñe 10th, 1881, the defendant took out a writ of error, assigning that the Court erred in discharging the rules to stay the execution, and refusing to set aside the judgment and execution.
    December 80th, 1881, an agreement of counsel was filed, submitting a statement of facts, “ that William Mutchler, Esq., of counsel for the plaintiff, entered his appearance for the defendant and accepted service of the writ of scire facias, because at the time of the issuing of the writ of scire facias he was concerned for Tilghman Newhart in other litigation, and that he did so at the request of the said Tilghman New-hart, and for the purpose of saving costs ; that he has no recollection that Rebecca Newhart, the wife of Tilghman Newhart, authorized an appearance to be entered and service of the said writ accepted as aforesaid.”

      George W. Geiser and Hobert I. Jones, for plaintiff in error.
    The judgment was obtained without service of process and appearance, and is absolutely void, and all proceedings based on it are nullities. The mortgage was on the real estate of the wife.
    Whenever it appears of record that the judgment was obtained by default, without service, it can be reversed on error: Knox v. Elack, 10 Harris, 337; Banning v. Taylor, 12 Harris, 289 ; McClelland v. Pomeroy, 25 P. F. Smith, 412; King v. Brooks, 22 P. E. Smith, 364.

      William Mutchler, for defendant in error.
    March 20th, 1882.
   — Per Curiam :

There is no assignment of error to the judgment, nor could there have been. There was an appearance by an attorney of the Court, and his authority was to be determined as a matter of fact by the Court. The action of the Court in refusing to stay the writ of levari facias is not reviewable here.

Writ of error quashed.


author: Sharswood, C. J.

text:
    January Term, 1882,
    No. 224.
    March 9th, 1882.
    Norton versus Lehn.
    1. Where in an action to recover damages for an alleged breach of a contract of sale the plaintiff) who was the purchaser, relied upon a \yaiver of one of the conditions of the sale, and the Court charged the jury, “ If you cannot be satisfied, and taking all the other testimony in the case into consideration, you believe that they are still exactly of the same weight in the case, then the evidence of the one offsets the testimony of the other, and their testimony is effectually neutralized,” it was held to be error.
    2. The onus probandi was clearly on the plaintiff) and, in the absence of proof of a waiver, he failed in his case.
    3. It was error to charge that the plaintiff was entitled to recover, “ if you find, first, that Mr. Norton (defendant) entered into an express agreement with Mr. Lehn that he should give his note, and in other respects comply within a certain time with the terms of the conditions of sale; or, second, if you can imply such an agreement by Mr. Norton’s acts with Mr. Lehn,” there being evidence of an express agreement but no evidence of any acts from which such an agreement could be implied.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Northampton County.

    Assumpsit by John S. Lehn against Horace M. Norton, to recover damages for an alleged breach of contract of sale.
    Upon the trial of the case in the Court below, before Feeder, J., the following facts appeared:
    The defendant, in November, 1875, became assignee for the benefit of creditors of Dietrich & Brother. On the 16th of December, 1875, he held a public sale of the effects of the assignors. Prior to the sale the conditions were read aloud. They provided “ All accounts to be settled by cash or note before leaving the ground.” There were knocked down to the plaintiff 150,000 unburned brick at a kiln for $500, and a platform wagon for $86. Plaintiff did not make settlement beforfe leaving, and he testified:
    “ The sale was on Thursday, and on the next day, Friday, in the evening, right after supper, I went down to see Mr. Norton, and to ask him whether he would make a deduction of the interest on the note for sixty days if I would pay the cash, and he said he couldn’t do that; and then I asked him how the note should be drawn up, whether payable to order, or we or either of us, and I think I told him who I was going to get on the note, and then I told him that I could not attend to this thing on Saturday ; that I was very busy, as it was at the time we got in a good many country hides, and I couldn’t leave the office, and I said I would fix it on Monday; and then he said he would like to have it settled up on Saturday, but he intimated he would wait until Monday; and on Monday I got the note fixed up, which I have here.
    “ Q,. When you went to Mr. Norton with a note on Monday, did you show him the note ?
    “ A. There was a conversation took place that night before I took the note there to him. We talked about the brick, and Mr. Norton told me the Dietrich boys had taken the grates out from under the brick, and he says I would have to get new grate-bars, and I told him I would see about that when I went to burn the brick. This was at Norton’s store, at Second and Northampton streets. When I went there on Monday night I had the note in my pocket, but on Monday noon I had already learned that he had sold the brick to somebody else. On Monday evening I took William Lehn down with me and presented this note to Mr. Norton, and he took it and looked at it, and he said, ‘ That’s all right, but I have sold the bricks and wagon.’ Then I handed the note to William Lehn to look at it, and then we went out. Mr. Norton did not tell me who he had sold the bricks and wagon to......
    “ Q,. Tell us exactly what took place at the conversation.
    “ A. Well, what I said before is all that took place. T went down there and offered to pay him, and asked him if he would take off a discount if I would pay the cash. He said he couldn’t do that, he must have a note. Then I asked him how he wanted the note drawn up, and he said,, ‘ Payable to order ; we or either of us.’ And then he told me that the boys had taken the grates out of the kiln, and I asked him, ‘ What boys?’ and he said, ‘The Dietrich boys;’ and then I told him I couldn’t attend to it on Saturday, and I would attend to it on Monday, and he said his counsel would like to have it closed up, but it would do on Monday.”
    Cross-examined:
    “ You said before that he intimated that it would do, and now you say he said it would do; which was it?
    “A. Well, it amounts to about the same thing. He said in these words: ‘ That will do,’ or something of that kind.”
    The defendant testified:
    “ Q,. After the brick and "wagon had been struck off to Mr. Lehn, when did you first see him ?
    “ A. I am not positive whether it was Friday or Saturday, but it was two or three days after the sale. My impression was that it was the first of the week after the sale, but I wouldn’t be positive that it was not the Friday or Saturday following the sale. Mr. Lehn came into my place while f was at the front arranging some goods, and he stated he had heard that the grates were out of the kiln, and I said that 1 knew nothing about it; and then he asked how many bricks were in the kiln, and I said I didn’t know anything about that, and I asked him what that had to do with it, as he had bought them in a lump, and he replied that I must think he was a d — n fool to pay for it if he didn’t know what was in it; and I said, ‘ If you are going to take those goods, it must be settled up :’ and he said he would let me know, that he was going away the forepart of the week, and I said that that wouldn’t do, he must settle up now, and he said he wrnuld do as he pleased. My impression is that I saw him next after that the latter part of the following week, or the Monday following that.
    “ Q,. What took place then ?
    “ A. He came into the store with another gentleman, and offered to tender me what he said was a note, and I said to him that he had not complied with the conditions of sale, and that I had been advised by my counsel to close the matter up, and I had sold the articles to another party. I had sold them to Mr. Chamberlain for the price bid by Mr. Lehn. I told him that the brick and wagon had been sold. He simply offered me the note, and I said I had no brick and no wagon; that he had not complied with the conditions, and then he and the other gentleman left.”
    There was evidence that the profit on the bricks was about $500.60, and that the wagon was worth probably $200 to $250.
    The Court charged the jury, inter alia, as follows:
    [“ Gentlemen or the Jury: This is an action brought by John S. Lehn against Horace M. Norton to recover the difference in value between certain articles purchased by him at a sale by Horace M. Norton as assignee, — the difference in value between the price bid for them at that sale and their actual value.
    “ This claim is based upon the theory that the plaintiff, John S. Lehn, at that sale bid for these articles, and that they were knocked down to him under the conditions of sale, he being the highest and best bidder, and by reason of that being entitled to the goods so knocked off to him ; and that afterward, when he went to accept them, he was refused, because the defendant had sold them to some one else.
    “ If you find those facts as I have stated them to be true, and supported by the evidence, then Mr. John S. Lehn is entitled to recover. If they are not true, then he would not be entitled to recover.].....
    [“ A written contract can be extended by the parties concerned. They have a perfect right to extend the limit of time for the fulfilment of a contract, and if the limit of time allowed for compliance with those conditions of sale was the time when the purchaser left the ground, and that limit was extended then or afterwards by an agreement between the parties, — if it was agreed between them that the other conditions of sale should be complied with in a certain time, or without regard to time, they would have had a perfect right to do so, and Mr. Norton would have had no right to make any disposition of the property until that time had expired.]
    [“An agreement is a mutual understanding between two persons to do a certain thing.] Both must understand the same thing from it. One man cannot enforce an agreement provided the other party did not mean what he himself understood from it. That is, both must understand the same thing of the agreement, one proposing the very thing that the other accepts, — the very thing that he understands that he accepts. So, in passing upon this question, as to whether there was a subsequent agreement allowing or extending the time in -which the conditions of sale should be complied with, you must find that it was a mutual agreement, mutually understood, — a proposition made by Mr. Norton which he understood to mean exactly what Mr. Lehn meant to accept.
    “Now, was there such an agreement? Whether there was such an agreement or not, gentlemen of the jury, is a question of fact for you, and upon which the Court will not comment. [It is a question the determination of which depends solely upon the evidence in this case, and the question is,— Did Mr. Norton at any time subsequent to the sale, or at the time of the sale, enter into an express agreement, or by his acts imply such an agreement with Mr. Lehn that he should give his note and in other respects comply within a certain time with the terms of the conditions of sale?]
    “If you find that this was so, if you find that there was such an agreement which the plaintiff, offered to comply with, then the plaintiff would be entitled to recover. If there was no such agreement, or if Mr. Norton did not understand or did not propose to enier,into such an agreement with Mr. Lehn, and you find that to be true from the evidence, then your verdict would have to be for the defendant.
    “In arriving at the question of damages, in the event that you should find for the plaintiff, you would have to say for what amount you rendered a verdict. To ascertain that amount, you would have to deduct the value of the price bid for the property on the day of sale from the actual value of the property at that time. ' '
    “ Evidence has been offered for the purpose of convincing you what the value of the property was. You must find the value from that testimony.
    “Gentlemen of the jury, the counsel for the parties in this ease have desired the Court to say something to you about the relative value of the testimony in this case, or rather in regard to the effect or weight of the testimony. [Whatever conclusion you come to, you must arrive at that conclusion from the weight of the testimony. If you find the testimony of two witnesses as to a certain fact standing alone, aud they are all the witnesses on that point and there is not any other corroborating evideuce, and they are of equal weight, one exactly balancing the other, then you must throw their testimony out if it cannot be reconciled. When they are of equal weight, one offsets the other. But if you find from thé circumstances of the case that either of them is corroborated by the testimony of other witnesses, then you must give due consideration to such facts in passing upon their credibility. If they are of equal credibility, then you must try to reconcile their testimony, and if you cannot reconcile it, you must render your verdict according to whichever testimony is the most entitled to consideration.
    “ If you cannot be satisfied, and, taking all the other testimony in the case into consideration, you believe that they are still exactly of the same weight in the case, then the evidence of the one offsets the testimony of the other, and their testimony is effectually neutralized.”]
    Counsel for defendant excepted to the charge.
    December 21st, 1881. Verdict for the plaintiff for $796.29 and judgment thereon.
    The defendant then took a writ of error, assigning as errors those portions of the charge as above within brackets.

      James S. Downs and B. F. Fackenthall, for plaintiff' in error.
    A verbal agreement, to be effectual and binding as an alteration of the express terms of a prior written contract between the parties, must be supported by a new and valid consideration, and a mere executory contract of this kind, to constitute an exception to this rule, must have been acted on so far that a refusal to carry it out would work a fraud on one of the parties: Thurston v. Ludwig, 6 Ohio St., 1; Wilgus v. Whitehead, 6 W. N. C., 538; Taylor v. Winters, 6 Phila., 126; Munroe v. Perkins, 9 Pickering, 298; McNish v. ^Reynolds, 10 W. N. C., 24.
    On the subject of the conflict of testimony, the Court should have said to the jury that when the plaintiff’s witness and the defendant’s witness contradict each other, and there is no circumstance to show which one is more likely to be correct, then the plaintiff cannot recover, because, having the affirmative of the issue, he can only recover in case his evidence has the preponderance, that is, weighs more than the defendant’s does; that in cases of the equilibrium of testimony, the plaintiff loses and the defendant wins.

      JEdward J. Fox, for defendant in error.
    The jury found the fact that Norton extended the time for the performance of the contract by Lehn.
    The parties could extend the time without a new consideration: Carrier v. Lilworth, 59 Penna., 406; McNish v. Reynolds, 10 W. N. C., 24; Wilgus v, Whitehead, 8 Norris, 133.
   The opinion of the Court was delivered by

Sharswood, C. J.

It was an undisputed fact that, according to the conditions of sale, all goods bought were to be settled for in cash or by note before leaving the ground. They were not so settled, and the defendant, as he had a right to do, sold the goods which had been knocked down to the plaintiff to another person. The only ground, then, of recovery by the plaintiff must have been that this condition had been waived and the time extended. The onus frobandi of this was clearly upon the plaintiff. The Court, however, charged the jury that if from the conflict of the testimony of the plaintiff and defendant, with all the other testimony, they believed that they were exactly of the same weight, then the evidence of the one offsets the testimony of the other, and their testimony is effectually neutralized. This may be true in the abstract, but we think it was calculated to mislead the jury from the true point for their consideration, whether, upon the evidence, they believed the fact of the extension as alleged by the plaintiff, for, unless they did, the plaintiff failed in his case. A more material error,.however, was committed by the learned judge in his charge as complained of in the fourth assignment of error: “If you find, first, that Mr. Norton entered into an express agreement with Mr. Lehn that he should give his note, and in other respects comply within a certain time with the terms of the conditions of sale; or, second, if you can imply such an agreement by Mr. Norton’s acts with Mr. Lehn,” the plaintiff was entitled to recover. After a careful examination of the evidence, we have failed to discover any acts of Mr. Norton with Mr. Lehn from which such an agreement could be implied. Mr. Norton, immediately on the failure of Mr. Lehn to comply with the condition, sold the goods to another person, and refused the subsequent tender of compliance. The case should have been left upon the evidence as to the express agreement, and the jury not permitted to imply such an agreement without evidence.

Judgment reversed and a venire facias de novo awarded.