author: Mr. Justice Woodward Mr. Justice Paxson.

text:
    Wright, Assignee of Smith, versus Vickers, Administrator, &c., of Montgomery, with notice to Montgomery et al., terre-tenants.
    1. After the commencement of proceedings in partition one of the co-tenants who Avas a defendant, mortgaged his undivided interest; judgment quod partitio fiat Avas entered, under which the premises were sold. Held, that the lien of the mortgage wae discharged, notwithstanding the Act of March 23d 1867, which provides that the lien of a first mortgage shall not be destroyed “ by any judicial or other sale whatsoever.”
    2. Where there is an encumbrance against a co-tenant and by proceedings in partition there is a division into equal shares, the lien is shifted from the undivided interest to the co-tenant’s purpart.
    S. Where land cannot be divided, the right of an encumbrancer of one co-tenant attaches to his share of the proceeds of sale.
    4. The object of proceedings in partition is division not conversion.
    5. It is only when a sale is inevitable that a partition can be used for the liquidation of liens.
    6. Each tenant in common takes the money value of his interest only when it is impracticable to invest him in severalty with the interest itself.
    7. An affirmative statute repeals a precedent affirmative statute where its matter necessarily implies a negative and the repugnancy is such that the two acts cannot be reconciled.

      8. A general statute without negative words will not repeal a previous statute which is particular though the provisions in the two be different.
    9. “ Judicial sale ” in the Act of 1867, means such as would transfer the title to the special and particular estate mortgaged.
    10. Brown v. Commissioners, 9 Harris 37; Commonwealth v. Pool, 6 W atts 33, followed.
    February 16th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Philadelphia: Of January Term’1876, No. 115.
    This was a scire facias sur mortgage issued March 30th 1875, by Ellen E. Wright, assignee of Edward W. Smith, against George M. Vickers, administrator, &c., of Hardman Phillips Montgomery, with notice to James E. Montgomery and a large number of other persons, terre-tenants.
    Hardman P. Montgomery, the mortgagor, was a co-tenant with a number of other persons, of real estate in the city of Philadelphia. Proceedings in partition were commenced in the District Court of Philadelphia, by one of the tenants-in-common against her fellows, including H. P. Montgomery. After the commencement of these proceedings H. P. Montgomery executed on his undivided interest, the mortgage in suit.
    The defendants severally filed affidavits of defence, which set out the foregoing facts, and further averred:—
    “ After delivery of said mortgages judgment quod partitio fia.t was entered, and it was so proceeded in the cause that an order of sale was duly made by the court, and under the same the premises were duly sold, and at such sale this deponent and her sisters purchased parcels thereof, and paid the price hid to the sheriff, and received deeds from the sheriff for the same, the sale having been confirmed by the court. All which happened and was accomplished before the writs of scire facias issued on said mortgage. Deponent is infprmed and expects to prove, that the plaintiff in the writ had notice and knowledge of these proceedings, and especially of the order of sale.”
    The Act of March 23d 1867, sect. 3, Pamph. L. 44,1 Br. Purd. 479, pi. Ill, enacts:—

      “ When the lien of a mortgage upon real estate is, or shall be, prior to all other liens upon the same property, except other mortgages, ground-rents, purchase-money due to the Commonwealth, taxes, charges, assessments and municipal claims, whose lien, though afterwards accruing, has by law, "priority given it, the lien of such mortgage shall not be destroyed, or in any way affected, by any judicial or other sale whatsoever, whether such judicial sale shall be made by virtue of authority of any order or any Orphans’ or other court, or of any writ of execution, or otherwise howsoever.”

      The plaintiff obtained a rule for judgment for want of a sufficient affidavit of defence. The rule was afterwards discharged on the following opinion of the court below:—
    “ One of several tenants in common mortgaged his interest in an estate. Before the execution of the mortgage, proceedings in partition had been commenced. These proceedings were subsequently perfected, and, as the estate could not be divided, it was, under an order of sale, sold by the sheriff; and the question now to be decided is, did the purchasers at the sale take the land divested of the lien of the mortgage ?
    “ At the first reading, the Act of Assembly of 26th of March 1867, 1 Purd. Dig. 479, p. Ill, seems to be very sweeping and decisive of the controversy against the purchasers. If the lien of the mortgage, the subject of this controversy, ‘shall not be destroyed, or in any way affected by any judicial or other sale whatsoever, whether such judicial sale shall be made by virtue or authority of any order or decree of any Orphans’ or other court, or of any writ of execution, or otherwise howsoever,’ then an element of confusion has been introduced into our law; which will render it impracticable, if not impossible, to partition an encumbered estate, and will work the grossest injustice to those who are entitled .to the protection of the courts. To rescue this statute from a construction which will lead to such results is not onlyiour object but our duty.
    “ Tenants in common hold, by unity of possession. Each, however, has a separate estate, which may be encumbered or sold. Keeping in view the object of a partition, which is the equitable division of an estate among those entitled to it, we must remember the distinction pointed out by Gibson, 0. J., in Commonwealth v. Pool, 6 Wright 33; when he said, that ‘ a sale in partition works a conversion of form without a transmutation of essence, and this distinguishes it from a sale for payment of debts, of which transmutation is the primary and entire intent.’
    “ If this distinction be a sound one, then the sale in partition did not work an equitable conversion, for that conversion is ‘ dependent upon the particular object to be attained by it,’ and the practical and legal effect of the partition was to designate the precise value of the estate, subject to the lien of the mortgage, and to which it attached. What difficulty is there then in holding that the share of money belonging to this mortgagor, under these proceedings in partition, is in point of law as much land, though changed in form, as though an allotment had been made, and as such is bound by lien of this mortgage.
    “ Whatever estate the mortgagor had in this land is now gone, but the money made by the sale under the proceedings in partition represents the share of the mortgagor in the land and its value, and for the purposes of this lien, is to be treated as land. We thus reach a conclusion, which, while it does not disturb the mortgage, accomplishes the object of the Act of Assembly, and an estate held in common and encumbered, may be partitioned according to the true intent and meaning of the law.
    “We do not consider, in the determination of this case, the fact mentioned at the argument, that the share in money made by the sale and belonging to the mortgagor will not pay the mortgage debt, and for the reason that the sale measured the value of the estate held by the mortgagor in common with his co-tenants; and certainly the mortgagee is entitled to nothing more.”
    Discharging the rule was assigned for error on the removal of the record to the Supreme Court by the plaintiff.

      S. N. Norris and JE. S. Miller, for plaintiff in error.
    — If the mortgagee of an undivided interest gets in the partition nothing but owelty, the encumbrance on the land ceases, of course; but if he gets land, the mortgage adheres to his share of the land. In this case there is no actual partition. There is a sale, the effect of which is regulated peremptorily by the Act of Assembly. The case in which owelty is substituted for land ceases to have any applicability whatever. The power of a joint tenamt or tenants in common to affect the convenience of partition by an encumbrance upon his share was early recognised: Bavington v. Clarke, 2 Penna. R. 115. Such an encumbrance can not prevent a division; but that doctrine was carried out, not by malting the lien void or by modifying it, but simply by apportioning it and for all purposes to its own allotment: McLanahan v. McLanahan, 2 Penna. R. 279; Diermond v. Robinson, 2 Yeates 326; Bachman v. Chrisman, 11 Harris 162. Partition is generally made without any reference to liens and encumbrances, either against the whole tract or the shares of the different tenants; Seaton v. Barry, 4 W. & S. 183; Feather v. Strohecker, 3 Penna. R. 506.

      J. S. Gerhard and R. 0. MeMurtrie, for defendants in error,
    cited Berger v. Hiester, 6 Wharton 214; Pierce v. Potter, 7 Watts 475.
    March 30th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

It appears to have been taken for granted by counsel in the court below, and it was assumed in the argument here, that if the broad terms of the Act of the 26th March 1867 were to be accepted in their unqualified and literal sense, they would be controlling and decisive in favor of the view presented on behalf of the plaintiff. The case will be mainly considered, therefore, on that ground. The provision is, that the lien of a first mortgage “ shall not be destroyed or in any way affected by any judicial or other sale whatsoever, whether such judicial sale shall be made by virtue or authority of any order or decree of any Orphans’ or other court, or of any writ of execution, or otherwise howsoever.” Here, lands in the ownership of several tenants in common have been sold under proceedings in partition in the Court of Common Pleas. The undivided interest of Hardman Phillips Montgomery, one of the co-tenants, was subject to the lien of a mortgage on which the plaintiff as assignee has brought suit against the purchasers as terre-tenants. The single question raised is, whether by the operation of the Act of 1867, the lien of the mortgage was divested by the sale.

When the act was passed, the rules relating to partitions were settled and familiar. The maintenance of an efficient system for the division of estates amongst their joint owners, had long been a vital necessity to the community. Lands descended to all the children of every decedent, and one, or several, or all of them might be unable to retain them. One or more of the parties in a joint enterprise dying, the management of the joint property would often have been hopelessly fettered, if it could not have been freed from the encumbrances of creditors and the claims of heirs. Where land had become part of the assets of a partnership, a settlement after dissolution could often have been made practicable only by its prompt conversion into means of liquidation. Besides, as was said in the Girard Life Insurance Company v. The Farmers’ and Mechanics’ Bank, 7 P. F. Smith 388, it had “ long been regarded as sound policy that property purchased at a judicial sale should pass into the hands of the purchaser clear of all mere liens.” It was accordingly held in that case that a sale in partition, under the ■ Act of 1799, discharged the liens of judgments and mortgages on the lands sold, and that the lien of a mortgage was not preserved by the Act of the 6th of April 1830, and its supplement of the 16th of April 1845. The analogy between proceedings in partition by writ and proceedings in partition in the Orphans’ Court, was remarked upon in the same case, and it was said that “ there is no doubt that under the Orphans’ Court sale, the entire interest of an heir passes to the purchaser, who takes it disencumbered of all liens.” The Act of the 29th of March 1832, indeed, recognises this as the necessary consequence of such a sale. The 49th section provides that “in all cases where the share, or any part thereof, of an heir in real estate shall be converted into money, either by reason of the impracticability or inequality of partition, or by virtue of a sale or otherwise, the Orphans’ Court, before making a final decree confirming the partition or sale, may appoint a suitable person as auditor to ascertain whether there are any liens or encumbrances on such real estate affecting the interests of the parties; and if it shall appear by the report of such auditor, or otherwise, that there are such liens, the said court may order the amount of money which may be payable to any of the parties against whom liens exist to be paid into court, and shall have like power as to the distribution thereof as is now exercised by the courts of common law where money is paid into court by sheriffs or coroners.” Where the partition either in the Common Pleas or Orphans’ Court resulted in a division into equal shares, the lien of the encumbrance was shifted from the undivided interest to the purpart of the co-tenant in the one case or of the co-heir in the other. When the land could not be divided, the right of the encumbrancer attached to what was the exact equivalent of the debtor’s interest in the land — his share of the proceeds of the sale.

In this condition of the law the Act of 1867 was passed. It is insisted that the effect of it was to prevent the disturbance of the liens of first mortgages of undivided interests by any sale in partition, and to preserve them as encumbrances on the same interests in the hands of the purchasers. Very grave inconveniences, so grave, indeed, as to amount to injustice, would result from such a construction. It would seem obvious, if the legislature had intended to make so wide-reaching a change in the existing law, that they would have provided for consequences that could not but have been foreseen. Practically, the lien of a mortgage would, for purposes of security, be left to encumber the interests of all his co-tenants whenever a sale would be the result of a partition. However numerous the parcels into which the property would be divided, each of them in the hands of the purchaser would be followed by the encumbrance. This might add to the value of a first mortgage-as' a security, but its effect on the value of the land could only be disastrous. Nothing would deter a bidder for a single purpart so surely as the knowledge that the estate in his hands would be subject after his purchase to an indefinite and unadjusted proportion of a floating and shifting lien which would expand and contract from year to year over the different parcels of the property as market values wTould rise and fall. There is nothing in the enactment to prevent the co-tenant whose interest in the land had been encumbered from taking his share of the purchase-money produced by the sale. That would be freed from every burden if the lien must follow the land. It is true that plans might be invented to avert such a palpable injustice. The co-tenants might be subrogated to the rights of the owner of the encumbered interest in the money, and a sort of equality could be worked out in this clumsy way. But this would require such an exercise by the courts of discretionary power as to amount to special legislation in its most objectionable form. The general effect of imputing to the legislature the intention contended for on behalf of the plaintiff, would be, whenever a mortgage was found to intervene, to subvert the entire system of partition in the common law courts which had been built up subsequently to the passage of the Act of 1799, and to repeal the 49th section of the Act of 1832. To work a change so radical by implication from the language of the law, words absolutely unmistakable in their purport must be found to have been employed.

The Act of 1867 was described by its title as “relating to judicial sales and the preservation of the lien of mortgages.” The first section authorized the recording of deeds for lands sold under the Act of the 18th of April 1853, upon their acknowledgment in court duly certified without other 'acknowledgment, and empowered the court of the county of a grantor’s residence to approve the security required,by the act, and certify such approval to the court decreeing the sale. The second section declared that private sales made by order of court under the Act of 1853 should discharge the premises sold from the debts of decedents, except debts of record and debts secured by mortgage. These were the only specific provisions in regard to judicial sales. The general words under which this controversy has arisen were contained in the third section, which had special relation to “the preservation of the lien of mortgages.” The primary idea suggested by an enactment for such a pm-pose would be that of its connection with other enactments providing for the security of such and other liens. While it is to he treated as in pari materia with the Acts of 1830 and 1845, and while it would control the operation of other laws relating to liens as such, it does not necessarily follow that this act should affect any of the provisions of laws whose general scope embraces the division, devolution and transmission of estates in land. The object of proceedings in partition is division, and not conversion. And whenever it can he done this object is carried into effect. It is always possible that a sale may be necessary, but that is a contingent incident, and not the original end in view, and it is only when a sale is inevitable that a partition can be used for the liquidation of liens. Each tenant in common takes the money value of his interest only when it is impracticable to invest him in severalty with the interest itself. It can very readily he conceived, therefore, when this act was passed, that no thought of the partition statutes was i.n the legislative mind. “Every affirmative statute is a repeal of a precedent affirmative statute where its matter necessarily implies a negative; hut only so far as it is clearly and indisputably contradictory and contrary to the former act ‘in the very matter’ (Foster’s Case, 11 Rep. 64), and the repugnancy such that the two acts cannot be reconciledPotter’s Dwarris on Statutes 154. The American eases are substantially to the same effect. To repeal a statute by implication, there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently ■reconciled: Id. 154, 155, note 4, and the cases there cited.. I't was held in Brown v. The County Commissioners, 9 Harris 37, that a general statute without negative words will not repeal a previous statute which is particular, though the provisions in the two be different. Although two acts of parliament are seemingly repugnant, yet, if there be no clause of non obstante in the latter, they shall, if possible, have such a construction that the latter may not be a repeal of the former by implication: Potter’s Dwarris 157. The same view has been taken where powers under several acts are such as may well subsist together: 15 East 377. However general the words of the Act of 1867, it is not believed that they were used with the intention of referring to a subject to which they could only incidentally and exceptionally apply. “It cannot be contended,” Lord Kenyon said, in Williams v. Pritchard, 4 Term Rep. 2, 4, “that a subsequent act of parliament will not control the provisions of a former one, if it were intended to have that operation ; but there are several, cases in the books to show that when the intention of the legislature was apparent that the subsequent act should not have such an operation there, even though the words of the statute, taken strictly and grammatically, would repeal a former act, the courts of law, judging for the benefit of the subject, have held that they ought not to receive such a construction.” And this is in accordance with doctrines that have become axiomatic. One of Domat’s rules of law and of interpretation is in these words: “ It happens in two sorts of cases that it is necessary to interpret the laws. One is when we find some obscurity, ambiguity, or other defect of expression; for in this Case it is necessary to interpret the law in order to discover its true meaning. „ And this kind of interpretation is limited to the expression that it may be known what the law says. ' The other is, when it happens that the sense of. a law, how clear soever it may appear in the words, would lead us to false consequences, and to decisions that w<?uld be unjust if the law were indifferently applied to everything that is contained within the expression. For in this case the palpable injustice that would follow from this apparent sense obliges us to discover ,hy some kind of interpretation, not what the law says, but what it means; and to judge by its meaning how far it ought to be extended, and what are the bounds that ought to be set to its sense.”

As a technical authority, the case of the Girard Life Insurance Company v. The Farmers’ and Mechanics’ Bank, supra, is of course valueless in the present discussion, for it grew out of facts occurring before the Act of 1857 was passed. But the case was decided nearly a year after the enactment, and when its provisions must have become familiar to the profession and to the members of the court; and it is a fact of some significance, that in delivering the opinion Judge Strong said: The argument from the inconvenience of selling subject to encumbrances on the interests of some of the parties is not without weight. It would produce great difficulty and uncertainty in the distribution, and it would exhibit the anomaly of a right conferred by one tenant in common superior to that he ever possessed.” It would seem certain, when that case was decided, that no idea of the capacity of the statute to work results thus deprecated, had obtained lodgement in the professional or judicial mind.

It is urged that a sale under proceedings in partition must be governed by the act because the sale is judicial, and because the act applies to all judicial sales without exception or qualification. But a sale of perishable goods under an order of court pending a controversy in regard to the title to them, would be equally a judicial sale, and yet it would never be pretended that it would be governed by the most general law that could he framed to regulate judicial sales of personal property in ordinary practice. The act of conversion would be the incidental exercise of the general jurisdiction of the court, and the effect would simply be that in place of the goods their money price would be substituted on which the judgment in the end would operate. So a sale is an occasional and contingent, and not a necessary incident of a partition. The property being divided, the lien of a mortgage would be drawn to the particular purpart allotted to the mortgagor. Symmetry of principle requires, when a sale has been made, that the lien on the undivided interest should be transferred to the mortgagor’s share of the purchase-money which the sale has produced. And this symmetry ought to be disturbed only in view of an unequivocal expression of legislative will. The distinctive characteristics of this proceeding were clearly stated by Chief Justice Gibson, in the Commonwealth v. Pool, 6 Watts 33. “A sale in partition works conversion of form without a transmutation of essence, and this distinguishes it from a sale for payment of debts, of which transmutation is the primary and entire intent. * * * In every judicial sale for payment of debts, the money raised for the object is in the course of administration, and no process lies against it to enforce or continue a lien on it; but money raised incidentally by process in partition, is land in another form, and attended with inheritable qualities.”

Hitherto, the question has been discussed upon the assumption that the terms of the statute, if entirely unrestrained, would be necessarily applicable to the case, and w'ould control its determination. But it may be considered in an aspect under which grave doubt would arise whether such an assumption is well grounded. The legislative provision was for the protection of the liens of mortgages from destruction by judicial sales.- What “judicial sales” were intended ? Manifestly such as should transfer the title to the special and particular estate mortgaged. A single co-tenant’s interest is only a fractional — often it is only a minute — proportion of the land of which it forms a part. His rights, and those of his creditors resulting from their liens against him, must be so restrained in their exercise as to leave the rights of his co-tenants unimpaired. The statute can have ample and adequate as well as reasonable application by confining its operation to the identical and specific interest encumbered and sold. A rule that a first mortgage on an undivided interest in land should not be divested by a sale on a junior judgment against the mortgagor, would be unobjectionable. So, a sale under an order of the Orphans’ Court for the payment of debts, or on the application of the guardians of minor heirs, would be properly subject to such a rule. And no vital principle would be invaded by holding that a sale of an undivided interest under any of the various provisions of the Act of the 18th of April 1853, would leave a first mortgagor’s lien undivested. To such and to similar cases the Act of 1867 could be safely extended. The legislature contemplated judicial sales of the property mortgaged, and not judicial sales of other property of which thg,t mortgaged would form a subordinate part, and the title to which would pass only as an incidental consequence of a proceeding having a wider and a more general scope. The sale of one-twentieth of a hundred acres of land would be one thing. The sale of the whole tract by which, as a particular incident, the title to the one-twentieth would be transferred, would be another and quite a different thing. In the one case, the lien of a mortgage of the fractional interest -would remain undisturbed. In the other, it must be held' that it would be divested, for otherwise the scope of the statute would be extended to affect parties and objects not embraced by any rational and just construction within its intention or its terms.

Upon every ground, it is believed that the question in the cause was accurately ruled by the court below. By due process of law all rights of the mortgagor in this land have been extinguished. In due legal form their exact equivalent in money has been obtained. This money is the measure of the value of the mortgagor’s land on the one hand, and of the extent of the mortgagee’s lien on the other. Certainly there can be no hardship in a legal rule that gives to a creditor the entire property which he has accepted as the security for his debt.

The order of the Court of Common Pleas discharging the rule for judgment for want of a sufficient affidavit of defence is affirmed.

Mr. Justice Paxson.

— I concur in what has been so well said by our brother Woodward, and I desire to say in addition, that if we are to give a literal construction to the Act of 1867, it will preserve the lien of a mortgage though the sale be upon said mortgage, or upon the bond accompanying it. Even a sale upon a prior mortgage is within the letter of the act. So is a judicial sale in the execution of a power contained in a will. Such sale of a necessity sweeps away all subsequent liens as well as estates. I do not think that the word lien” in the Act of 1867 is to be taken in its technical sense, but rather in the broad sense of embracing any charge or right upon the land by means of which a sale thereof could be compelled. Of this nature is a power of sale before mentioned. So, also, I am inclined to think is the right or power which each owner has to compel partition. Such right is incident to every tenancy in common, and an encumbrancer who takes a lien upon an undivided interest, takes it subject to the paramount right of each tenant to have partition, with notice thereof.

Chief Justice Agnew and "Mr. Justice Sharswood dissented.


source: Caselaw Access Project

author: Per. Curiam.

license: Public Domain

text:
    Shallcross versus Smith.
    1. A married woman and her husband executed & joint bond with warrant; judgment was entered on it against both: Held, that as to the wife the bond and warrant were a nullity and the judgment against her could be stricken off.
    2. The bond and warrant being a nullity as to the wife, itwas the husband’s bond singly and it was not error to refuse to strike off the judgment as to him.
    February 16th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Philadelphia: Of July Term 1875, No. 28.
    On the 11th of September 1871, Samuel S. Shallcross and Lamira A. Shallcross his wife, entered into a joint bond for $7400, conditioned for the payment of $3700. The bond was secured by a mortgage of the same parties on the real estate of the wife. She •died May 8th 1873. The real estate was sold under the mortgage, November 8th 1873, for $3188.54. On the 31st of March 1874, judgment was entered on the bond and warrant against Samuel S. Shallcross and Lamira A. Shallcross. Under a fieri facias issued February 20th 1875, on this judgment, the interest of Samuel S. Shallcross in certain real estate was levied on and condemned, and a vend. ex. issued, which was stayed. A rule was taken to strike off the judgment.
    The court (Allison P. J.) discharged the rule, on the ground that the bond, though joint, was operative against the party competent to contract.
    Shallcross took a writ of error, and assigned for error the decree discharging his rule.

      P. Wilson (with whom was H. Gf. Ward), for plaintiff in error.—
    Judgment on a joint warrant of attorney can be entered only against all the makers: Dalrymple v. Fraser, 15 Law Jour., N. S. 193; Gee v. Lane, 15 East 592 ; Raw v. Alderson, 7 Taunt. 453; Hunt v. Chamberlain, 3 Halst. 336; Harris v. Wade, 1 Chit. 322; Wood v. Heath, Id. 708, note.

      W. 0. ITannis, for defendant in error. —
    A bond and warrant of a married woman being absolutely void (Keiper v. Helfricker, 6 Wright 325; Steinman v. Ewing, 7 Id. 63; Glidden v. Strupler, 2 P. F. Smith 400), they are to be treated as if executed by the husband alone. A contract signed by an infant or feme covert and one sui juris, is binding on the one sui juris: Addison on Contracts 970; 2 Hilliard on Contracts 132; Swanzey v. Parker, 14 Wright 452; Motteux v. St. Aubin, 2 W. Black. 1133.
    March 6th 1876,
   Judgment was entered in the Supreme Court,

Per. Curiam.

— The warrant of attorney and bond of Mrs. Shallcross were a mere nullity. The entry of judgment on it was not binding on her and can be stricken off. But it does not follow that the bond and warrant are void as to her husband, Samuel S. Shallcross. Being void as to her, it was his bond singly. We see no error in refusing to strike off the judgment as to him.

Judgment affirmed.


author: Per Curiam.

text:
    Sarah. L. Keene’s Estate.
    1. A bequest was to “ my niece Ellen * * * §30,000, to be invested in ground-rents, &c., the interest to be paid to her only, or her power of attorney, whether married or single, during her life, and after her death to her children, if 'any, absolutely, but if she dies without issue, the principal to go to her brothers; * * * but if she marries without my consent, or after my death, to any person whom I did not approve during my life,” the devise to be void ; Held, to be an active trust.
    2. The niece and two others were appointed executors ; the niece only survived the testatrix: Held, that she being executrix might retain the bequest as trustee, without giving security to those in remainder under the Act of April 17th 1869.
    February 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: In the estate of Sarah Lukens Keene, deceased: No. 49 of July Term 1874.
    The decedent died on the 11th of May 1866, having never been married. She left a will dated November 1843, and proved June 9th 1866, by which she made a number of specific devises and bequests, and also the following provisions:—
    “ I bequeath to my dear niece, Ellen Keene, whom I have educated, the sum of thirty thousand dollars, to be invested in ground-rents, or bonds and mortgages on real estate, the interest to be paid to her only, or her power of attorney, whether married or single, during her life, and after her death to her children, if any, absolutely; but if she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investment of thirty thousand dollars in ground-rents, and bonds and mortgage, the interest only for their uses; but to their children, lawful issue, absolutely. But if she marries without my consent, or after my death, to any person whom I did not approve during my life, then this devise shall be null and void, and she shall only receive ten thousand dollars, subject to the same investment of ground-rents, or bond and mortgage, the interest only to be paid to her alone, or her power of attorney, and after her death to her children absolutely. I have made this clause, not from any fear of its probable necessity, but from prudence and precaution. If she dies without lawful issue, this sum to go to her brothers in the same manner as specified above in the larger sum.
    “ I give and bequeath to my nephew, Henry Edgar Keene, ten thousand dollars, to be invested in ground-rents, or bonds and mortgages on real estate, the interest only to be paid to him during his natural life; if he marries and has children, to his lawful issue, absolutely; but if he dies unmarried this sum to be divided between his two, or one surviving brother and sister, subject to the same investment, and receiving the interest only of the same during their lifetime.
    “It is my will, that my executors shall have power to sell the large lot, situated on Chestnut street, &c. * * * or any part of my real estate- not already devised to pay my legacies; but not until two years have elapsed from the time of my death, unless the property shall have attained its full and just value, and the stocks in which much of my personal estate is vested, have attained also par value.

    “The residue of my estate, real and personal, I give and be-, queath, to my dear and affectionate niece, Ellen Keene, subject to the same conditions as my legacy of the thirty thousand dollars specified in a former part of this instrument, the principal to be invested in ground-rents or in the bank stock considered safe, but preferable in bond and mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue absolutely; if she dies unmarried, she has power to devise it, to which ever of her brothers she will cohsider most worthy to inherit her bequest and miné, the interest only to them, to their children, lawful issue absolutely.”
    She named three executors, one of whom was Ellen Keene; she only survived the testatrix.
    Beside the real estate particularly mentioned in her will, Miss Keene, the testatrix, died seised also of a lot of ground in Sun-bury, Northumberland county, which John Lukens had in the year 1785 conveyed to his daughter, Tacy Lennox, who'devised the residue of her estate, including this lot, to Miss Keene.
    On the 17th day of May 1866, “ S. B. W. Mitchell and Ellen Keene Mitchell, his wife, late Ellen Keene, the sole-executrix, &c., of Sarah Lukens Keene, the said S. B. W. Mitchell joining in the execution by virtue of his marriage with the said Ellen Keene,” conveyed this lot for the consideration of $1000. The deed recited the devise to Miss Keene, the provision in her will giving her executors power to sell any part of her real estate, &c.
    Ellen Keene was married in the lifetime of the testatrix but after the date of her will, to S. B. W. Mitchell. Henry Keene also was married before her death. Neither Ellen nor Henry have had any children.
    The testatrix left at her death the following next of lcin: The above-named Ellen Keene (Mitchell) and Henry E. Keene, who were children of her brother, Jesse L. Keene, deceased; Lawrence St. Clair Keene and others, children of James B. Keene, deceased, a nephew of decedent; Jesse L. Keene and Edwin J. Keene, children of Lennox Keene, deceased, another nephew.
    Lawrence St. Clair Keene and Edwin J. Keene petitioned the Orphans’ Court, setting forth that they had a contingent interest in the bequests to Mrs. Mitchell and Henry E. Keene, and prayed for a citation to' Mrs. Ellen Mitchell, requiring her to settle an account of her administration as executrix of Miss Keene.
    The petition further prayed that the accountant and Henry E. Keene respectively be required to give security for the contingent interests of the petitioners under the will of the testatrix.
    The accountant, amongst other things, answered that the petitioners “ have no standing to ask security from her as executrix, or individually, until they have judicially established their contingent interest, and shown waste and mismanagement.”
    The executrix accordingly filed an account; it did not include the proceeds, of sale of the Sunbury lot. .
    The account was referred to Joseph A. Clay, Esq., as auditor, to examine and adjust and report distribution.
    The auditor made corrections in the account, and amongst other things surcharged the accountant with $1000, the proceeds of the Sunbury lot.
    He found the balance in her hands, being the proceeds of both .real and personal estate,'to be $50,563.44. He reported that this should be distributed “as residue to Mrs. Ell'en Keene Mitchell for her life, according to the will of the testatrix, and upon her giving the security required by the Act of Assembly.”
    The accountant filed exceptions to the report; one was that the accountant had been surcharged with $1000, the proceeds of the Sunbury lot; another that the auditor held_“the accountant liable to give security for assets that she holds as executrix subject to the limitations and trusts of the will of her testatrix.”
    In delivering the opinion of the Orphans’ Court on these exceptions, Allison, P. J., said:—
    “ The most important exception to the report of the auditor raises the question whether under the will of the testatrix a trust exists as to the bequest of $30,000 and the residue of the estate to Ellen Keene Mitchell, and as to a bequest of $10,000 to Henry E. Keene, who stood respectively in the relationship of niece and nephew to the testatrix. The auditor holds that the executrix had no trust to perform, and that she must pay or transfer the securities belonging to the estate to the legatees respectively, upon their giving the security required by the Act of Assembly in case of payment of principal to a legatee for life. This conclusion is founded chiefly on Parker’s Appeal, 11 P. F. Smith 478. * * *
    “We think it may be affirmed that the broad doctrine that a trust to invest and keep invested a fund to receive and pay income or profit to another, constitutes an active trust in Pennsylvania, and that it has not been overthrown by the case of Parker’s Appeal. In the case before us we have the sum of- $30,000 and the residue of the estate given to the executors, of whom Ellen Keene Mitchell was one, first to be invested in ground-rents or in bonds and mortgages; second, the interest to be paid during her life to Ellen Keene only, or to her attorney, whether she married or remained single; and after her death to her children absolutely. If the testamentary disposition of this portion of the estate ended at this point, it could not be rightfully claimed ‘ that the form of the bequest in Parker’s Appeal is substantially and indeed almost identically the same as that employed by Miss Keene.’ It would yet be wanting in a direction to invest the legacy in specified securities, and to keep it so invested for the life of the first taker, and with the power given to her to dispose of the residue by will in case she did not marry. When to this is added the duty upon the part of the executors to hold the property and pay the same to contingent devisees in case Ellen Keene should die unmarried, the income to be paid for life to said devisees, with remainder to their children absolutely, we think that it presents the case of a bequest, which is not substantially nor identically the same as Parker’s Appeal. But when to this is added the fact that there is a sole and separate use for Mrs. Mitchell during her marriage, the divergence from Parker’s Appeal becomes more apparent, the interest is directed to be paid to her only, or to her attorney, whether married or single. * * * That a separate use was intended cannot, we think, be questioned; the income was to be paid to her only, or upon her power of attorney. This brings it within the general principle that whenever it appears that the wife is intended to have property for her sole use that intention will be carried into effect by a court of equity. In a conveyance made directly to a wife any words which sufficiently show the intention to secure a use to her, or to separate for Her benefit the use from the title must also indicate an intention to exclude the husband. There is no particular form of words necessary for the creation of such an interest; the question is one of intention,-and is to be solved by the established rules of interpretation. * * *
    “ It is not' necessary to create a separate interest in a wife that a trustee should be interposed between her and her husband. Equity will, if it is requisite to support the intention, turn the husband into a trustee for the wife. * * *
    “ Sarah L. Keene appointed three executors of her will, of whom the accountant was one, and she is now the only survivor; but this does not, as we have seen, prevent the separate use vesting nor is it material that the bequest is directly to the legatee. * * *
    “ We sustain the trust as to Mrs. Mitchell for the following reasons:—
    “1. It is an active trust for-the life of Mrs. Mitchell.
    “ 2. It is necessary to hold the fund or securities for those who are contingently in remainder in several degrees.
    “ 3. There is, we think, a clear intention to create a separate use for Mrs. Mitchell; the use having been established in expectation that she would marry, which is shown not only by first portion of the bequest, but by the subsequent reduction of the legacy from $30,000 to $10,000, if she married without the approval of the testatrix.
    “For the reason given we uphold the bequest to Mrs. Mitchell as a live trust. If there was nothing more than the performance of active duties by the executors, to invest and to keep invested the fund, to collect and pay over income to her, we think this trust cannot be overthrown. * * *
    “ We are also of the opinion that a trust exists as to the legacy of $10,000 to the nephew, Henry E. Keene, because the duties imposed are such as to constitute it an active trust. It was incumbent on the executors to invest in ground-rents and mortgages, to pay the interest only to Henry for life; the remainder is to his children absolutely. Henry is married and without children ; it is not certain that he will not have issue. It will hereafter become a question as to what is to become of this legacy if he should not leave issue, there being an alternative remainder to brothers and sisters; the brothers are dead, but have left each a widow and' children surviving.”
    As to the $1000, proceeds of the Sunbury lot, the judge said:—
    “ This question will have to go back to the auditor, for if the exceptants did not agree that he should bring this claim into the account, it has no proper standing in it, and it may be a question whether the Orphans’ Court can in any event take jurisdiction of it, as the land was not sold under a testamentary power or by order of the court.
    “ If we are right upon the question of the existence of a trust, there can be no claim by remaindermen, to have the fund paid to them, upon their giving security. The exceptions to the report are sustained in accordance with the views above expressed, and it is referred back to the auditor for re-adjustment upon the principles above set forth, * * * and the prayer of the petitioner refused.”
    The auditor, in his second report, found in accordance with the principles of the opinion of the court, that the balance in the hands of the accountant was $41,274.44, and that it was to be held by the executrix as trustee, as decided by the court.
    The petitioners filed exceptions to the report, which were overruled by him and by the Orphans’ Court, and the report was confirmed.
    The petitioners appealed to the Supreme Court. Amongst others, they assigned the following errors:—
    2. Distributing the principal o'f the life legacies of $30,000 and the.residue, and of $10,000 to the executrix as trustee, instead of to the life legatees, Mrs. Mitchell and Henry E. Keene respectively, on their giving security for the protection of the appellants’ interests therein.
    3. Distributing the principal of said legacies to the executrix, as trustee, without security from the executrix as trustee for life for the protection of the appellants’ interests therein.
    4. Distributing said legacies without providing security for the protection of the appellants’ interests therein.
    5. Not increasing the principal of the residuary legacy with the amount of $1000, the proceeds of the sale of the'Sunbury lot, and in not surcharging the executrix with these proceeds.

      G-. L. Crawford and B. IT. Brewster, for appellants.
    — Mrs. Mitchell and Henry E. Keene took life estates in the bequests which were distributable immediately : Parker’s Appeal, 11 P. F. Smith 478 ; Austin Keene’s Appeal, 14 Id. 268. The appellants being owners of a contingent interest in the legacies (Austin Keene’s Appeal, supra), can require the executrix, being legatee of a previous interest, to give security, under Act of April 17th 1869, sect. 1, Pamph. L. 70 ; May 17th 1871, sect. 1, Pamph. L. 269, 1 Bright. Purd. 449, 452, pl. 214, 231.

      B. K. Price, or appellee,
    as to the trust being active, cited Barnett’s Appeal, 10 Wright 392 ; Bacon’s Appeal, 7 P. F. Smith 504; Graham v. Graham, 16 Id. 477; Earp’s Appeal, 25 Id. 119; Wilson’s Estate, 2 Barr 329; Barclay v. Lewis, 17 P. F. Smith 316.
    March 6th 1876,
   Judgment was entered in the Supreme Court

Per Curiam.

— We are of opinion there was an active trust in the executors of Miss Keene’s will, to invest and pay over the interest only to Ellen Keene (now Mrs. Mitchell) for life, and the principal to her children at her death, and if none, then to the 'persons named to take in that contingency. The trust in the executors was necessary to effectuate this purpose, and the corpus of the estate being in them, charged with the duty of investment and payment, it was necessarily active. Mrs. Mitchell, being herself an executrix, was not bound to give security for that which came into her hands, and cannot be required to give security to those in remainder.

The sum of $1000 raised by the sale under the testamentary power of the property in Sunbury must be accounted for as part of the estate held in trust. But as the appellants have no immediate interest in its use, it can be accounted for hereafter in another account, and this is so ordered. With this modification, the decree of the Orphans’ Court is affirmed, with costs, and the appeal is dismissed.


author: Mr. Justice Paxson

text:
    Burke versus Maxwell’s Administrators.
    1. A judge may express to a jury an opinion on the facts in a case properly referred to them ; but must not infringe their province, so as to mislead them or relieve them of full responsibility of pronouncing judgment on the facts themselves.
    2. When there is sufficient evidence for a jury on a given point, the judge should submit it calmly and impartially.
    3. If the judge states the evidence he should state it accurately, as well that which makes for a party as that which makes against him.
    4. The judge should studiously avoid deductions and theories not warranted by the evidence
    5. A judge charged: “ In all I have said there is substantially no law, and I am simply giving you my impressions of this case. You are not bound at all by anything I have said. * * * Instructions as to mere matter of fact, as to what the evidence has been, the weight of it or the inferences it will bear, are all for your consideration. You are judges of the whole matter. * * * I have deemed it important to present views which, were I in the jury-box, would control me in giving my verdict against the plaintiff.” Held, to be error.
    6. Plaintiff alleged that he had bought stock from defendant, who had guarantied that it would be of a certain value in six months ; in a suit on the guaranty he gave in evidence receipts from defendant for $4000 for stock. The defendant’s allegation was, that the stock had not been bought by plaintiff, but he had been intrusted with the receipts to sell stock to others. The court charged: Plaintiff ‘‘must satisfy you he bought this stock; he must satisfy you he had $4000 to put into it.” Held, to be error; it was not essential to prove he had $4000.
    T. Defendant was member of a partnership which had a claim against plaintiff; the other partners authorized the defendant to set off the firm claim against plaintiff’s. The court instructed the jury that if they found against plaintiff on the.guaranty, and found for the firm claim, they should certify for defendant the amount due to firm. Held, not to be error.
    8. The charge in this case beyond any recognised rule in the discussion of the evidence.
    February 18th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, PAXS0N-and Woodward, JJ.

      Error to the District Court of Philadelphia: Of July Term 1874, No. 108.
    This was an action of assumpsit, brought April 25th 1871 by Michael R. Burke against Anna Gr. Maxwell, YanCamp Bush and William E. Smith, administrators, &c., of Ebenezer Maxwell, dec’d.
    The declaration was on a contract of guaranty; that, in consideration that plaintiff would purchase from decedent 800 shares of stock of the Tarr and Scott Farm Oil Company at $5 per share; within six months from the time of said purchase the said stock would sell in the market for $7 per share; that the stock did not at any time within six months from the time of purchase, or at any time subsequent thereto, sell for the price so warranted, but became utterly worthless.
    The pleas were: Non-assumpsit, statute of limitations, payment with leave, &c., and set-off.
    Maxwell, the decedent, had been in partnership with W. P. Bangs, under the firm name of Bangs & Maxwell. The plaintiff had been a clerk in that firm; it was alleged that he had overdrawn his account to the amount of $1400; Bangs, who died after this suit was brought, and his administratrix, after his death, agreed that the claim of the firm for the overdrafts might be set off against plaintiff’s claim in this suit.
    The case was tried May 4th 1874, before Lynd, J.
    For the plaintiff, James L. McCartney testified : — •
    “ In the latter part of 1864 Burke called almost every day about the purchase of the Tarr and Scott farm oil stock. I called about the same time on Maxwell; * * * to ascertain whether Burke’s statement was correct; I was introduced to Maxwell by Burke. Maxwell .said the company wanted money very badly; that the farm cost more money than they expected, and that was their reason for selling. I again called on Maxwell in 1865. I asked him if he had sold Burke any of the stock. He said several hundred shares. I asked him what he had charged Burke. ■ He said $5 per share. He said that he. would give me the stock on the same terms; that he had given Burke a guaranty that if the stock did not bring from $7 to $10 in six months, he would refund the money. I then took 250 shares and paid $1250 to Maxwell; * * * Maxwell said Burke had bought 800 shares. * * * I saw Maxwell several times after that; he put me off from time to time. I saw him after the six months had expired. He then put me off. ' He promised to pay me in a few days, when he paid Mr. Burke. I again saw him a few days after. He said the company were to have a meeting, and after the meeting he would decide what he would do. I didn’t see Maxwell after that. These interviews were some time in September or October 1865. I also saw Mr. Burke ; he was as bad as Maxwell.”
    Being cross-examined he said: “ Burke first called my attention to the stock. Burke did not exhibit any paper authorizing him to sell the stock. I bought the stock the beginning of 1865. At both interviews only Burke, Maxwell, and myself were present. * * * Before I bought the stock Maxwell said he had given Burke a guaranty that in six months they would sell from $7 to $10. * * * Maxwell said he had sold Burke several hundred shares. I asked him how many, and he replied 800. Burke himself had none of the shares for sale. I saw Maxwell some seven or eight months after I paid my money. He made some reference to losses they had had by a flood which swept some barrels of oil away. * * * I sued the defendants on my stock to recover the $1250. The verdict was against me. In that case Burke was my only witness.”
    A number of witnesses were called, who testified that the signature to the following paper (called A) was Maxwell’s; several of them saying that his signature was not uniform:—
    “ James Word .... 500 shares.
    “M. R. Burke .... 500 “
    “ J. L. McCartney . . . 250 “
    * #
    “ M. R. Burke . ... 250 “
    * #
    Total ..... 8000 “

      “ I have authorized M. R. Burke to issue my guarantee for the value of the above shares to the parties named therein when organized, viz., $7 per share.
    E. Maxavell.
    Philadelphia, 12, 7, ’64.”
    This paper was given in evidence.
    Gr. O. Beach, the secretary of the Oil Company, testified : that on the 8th of March 1865, there had been issued to MaxAvell 10,000 shares of stock all paid by him; that on the 15th of March MaxAvell had transferred 2250 of these shares to Burke; that Avithin six months after the organization of the company the stock had not at any time been worth from $7 to $10 per share; the receipt in the book of company to McCartney was December 20th 1864. The books of the company showed the issue of a number of certificates to different persons, viz.: two for 500 shares; one of 200 shares; two of 100 shares ; one of 75 shares, and one of 25 shares ; also, receipts to Burke for 2250 shares. On the surrender of these receipts, certificates in their place were issued; the money was actually paid on all before the receipts went out; Burke’s shares were on certificates for 900, 600, 500 and 250 shares respectively, all dated January 10th 1865; the certificates for the 900 and 600 shares Avere returned, and one for 1400 shares issued; which was dated January 15th 1865, in the name of Burke, and transferred to Maxwell, July 2d 1865: this was given in evidence by the plaintiff.
    The plaintiff was offered to testify; he was rejected as incompetent and he then closed his case.
    The defendants gave in evidence receipt book, certificate book, receipts of M. R. Burke, and stub end of certificate book, &c.
    William E. Smith testified: “lam one of the administrators of E. Maxwell. He died 10th September 1870. In 1862 and 1863 I was in his employ. I used to see him frequently up to the time of his death. Prior to his death Burke was one of his clerks; was bookkeeper and salesman fop ten or twelve years. Maxwell was taken sick about the latter part of August. He was also absent from the store some two weeks before that. Bangs conducted the business in his absence. Burke and Bangs were appraisers to his estate. After letters had been taken out I looked at Burke’s account in the ledger, and saw he had appropriated money which did not belong to him. The account showed he was getting $1200 per annum. It had been balanced 1st July 1870, and showed an overdraft of $57. I called Bangs’s attention to it, and also Bush’s. He and I had went down together, and in the meantime Burke had made certain entries in lead pencil (C). I know Burke’s handwriting. The charges of cash are July 1st, $57; July 6th, $200; August, $510; September, $455; October, $236; November, $185; December, $357; which made at the rate of $1200 per annum an overdraft of $1400. I was in the habit of seeing Burke every day about this time. I never heard a word about a claim against the estate. My knowledge of the claim was from Burke.”
    Being cross-examined he testified : “ I never had any conversation with Maxwell about Burke’s salary. Burke never admitted to me that he had overdrawn his account. Burke was a confidential employee of Maxwell’s. He possessed the entire confidence of the firm, and was intrusted with blank checks. I don’t know that he concealed the amounts he drew. At any time any member of the firm could tell what he. drew. Burke left at the end of 1870. * * * It was not between the 10th and 20th December I first found out about the overdraft.”
    Charles S. Lockwood testified: “ I was a bookkeeper for Bangs and Maxwell until 20th August of that year; Burke was salesman then. His account in the ledger is in my handwriting; I was in the habit of handing him cash when he requested, and charging him with it in a round sum. While I was there Maxwell had been away from the store some two or three weeks. I had conversations with Burke, and he said he would square up his account. When Burke would ask for money I used to write the amount in a memorandum which was kept in the drawer, and when I charged it off I would deduct the amount. Part of this one list was an amount of $500 which Maxwell had instructed me to loan Burke. Burke spoke about selling a house which belonged to his wife to pay this off. This was in the spring of 1870. I charged Burke’s salary up at the rate of $600 for six months.”
    Being cross-examined, he testified: “ Mr. Bangs was there, and was in the habit of examining the books. The memorandums were mine. I knew how much he drew; I always paid it to him. Mr. Maxwell used to look at the books, and see the amounts.”
    Being re-examined, he testified : “ I took the amount I was to charge up to Burke from him. He said $600. * * * When Maxwell was sick, Bangs was in the east, and Burke had charge of the store. The books were posted monthly.”
    Aaron J. Smith testified: “I succeeded Lockwood as bookkeeper. I got my information as to how the books were kept from Mr. Burke. I paid money to him from time to time, and put the amount in a memorandum in the drawer. I had no conversation with Burke about his salary. All these entries were in Bangs’s lifetime. I was in the habit of balancing, cash every day. Any one could learn from me how much cash Burke had drawn at any time. I think I remember giving him a check when he left the employ, and something— a few dollars — out of the drawer. The check was signed by Bangs.”
    Van Camp Bush testified: “I am one of the administrators. Letters were granted in October 1870. I first learned of the amount drawn by Burke in the latter part of the year, towards the 1st of January. Í saw Bangs in regard to it'subsequently. I called Burke’s attention to it, and told him that the $1400 would have to be collected. Burke replied that if I insisted on the collection of that money he would have oil suits brought against the estate and make it sweat. He said Maxwell told him he might have an increase of salary for three years back — for the years 1868 and 1869 $1500, and for the year 1870 $2000. He claimed that $1400 was the amount which was due him. Up to this time he never made any statement as to his claim. I next remember receiving a note from John P. Owens, and I went to see him. Owens showed me two certificates of stock belonging to Burke, which were numbered 107 and 169. He spoke about oil suits, but didn’t give me the name of any other clients. The next step was McCartney’s suit, and after a month Burke’s suit. I first knew of the guaranty paper a short time’ before the McCartney suit. Mr. Morgan gave me an order on Fitzpatrick for the books, and I kept them by advice of counsel at his office.”
    Charles E. Morgan testified: “Iwas counsel for the administrators of Maxwell’s estate, and also of Bangs’s; I saw Burke once or twice at the time of the appraisement, and again in February 1871. I received no information as to any claim he had against the estate. I wrote Burke about the overdraft, and he came to my office; I told him that this claim had been put in my hands for collection. Mr. Burke replied that the money was his, and he would not pay it back, and unless I withdrew my claim by one o’clock that day, he would cause oil suits to be brought against the estate, and would make the estate suffer more than the amount of the claim.”
    Entry “ C,” referred to in the testimony of W. E. Smith, was as follows:—
    “ Commenced 1st mo. 1st ’68, at $1500 per year for ’68,-’69; |2000 for 1870.”
    They gave in evidence the record of the suit of McCartney against Maxwell’s administrators, commenced March 4th 1871; also the record of a suit by the administrators against Burke for the over-draft, commenced February 4th 1871.
    ■ The plaintiff, in rebuttal, was offered as a witness and asked:—
    “ Was your claim on account of the sale of 800 shares of oil stock by Maxwell to yourself first put into the hands of your counsel, Mi-. O’Neill, before or after the decease of Mr. Maxwell ?” The defendants objected to the qustion ; it was rejected by the court and a bill of exceptions sealed.
    He was then asked the following question:—
    “Was your claim against Mr. Maxwell on account of the sale to you of 800 shares of oil stock upon the alleged guaranty put into the hands of your counsel, Mr. O’Neill, prior to your interview with Mr. Bush or Mr. Morgan?”
    He answered, “Yes. At the interview with Bush I told him I had a claim against the estate.”
    The plaintiff called John F. Goodwin, who testified: “I am a member of this bar. I have been in Mr. O’Neill’s office ■for fifteen years. I remember bringing the suit. Plaintiff had called about it a year before. He used to come very often. I don’t know why O’Neill did not bring suit before he did. He used to say, when he called, that he had made a claim against Maxwell, I think. There were other claimslikehis in Mr. O’Neill’s hands, which were settled. Burke used to ask whether he had a case; whether he could recover. He used to say that he had bought the stock at $5 per share, and that Maxwell had guarantied it would be worth $7 per share. He never showed me paper “ A” until last winter a year ago. He told me he had often looked for it and could not find it. He gave that as a reason he had not produced it before.”
    This testimony was admitted under objection by defendants and exception.
    All the testimony at all bearing on the decision in the case has been given above.
    The court, after referring to the grounds of claim and defence, charged:— * * * “ The plaintiff’s 'reply when charged with it was that the dead member of the firm had agreed he might draw as though his salary had been $300 greater for the two years before, and $800 greater during the then current year. And yet all the time while his employer lived, and notwithstanding frequent interviews with his legal representatives after his death, he does not appear to have breathed a word to any of them in regard to this claim of $4000 arising in the alleged guaranty.
    “ These circumstances make this case what I have designated it, a remarkable case. This ease is important as well as remarkable, inasmuch as the claim is against the estate of one who. is no longer here with us; of one whose lips cannot be opened to explain any part of the transaction; of one whose arm can no longer be raised to ward off the blow which has been aimed against his property. No one can die with any feeling of security that his accumulations can reach those who are dear to him, if claims, set up years after they have accrued, and only after his death, are sustained by courts and juries without the most rigid scrutiny, without convincing evidence.
    “ Yet there may be a case of a just claim where the creditor has laid by many years, and yet-never made'the claim known. Such case, notwithstanding an apparently unaccountable silence, must receive a patient hearing, and, if found to he just, verdict and judgment must follow, though the estate of the dead be swept away.
    1. [“The burden of proof in this case is on the plaintiff. It would be on the plaintiff in any event. It would be in any event if an ordinary case. It is much more upon him when the circumstances are so unusual.]
    “But what must the plaintiff satisfy you of, in order to recover? He must first satisfy you he bought this stock.
    2. [“ He must satisfy you he had $4000 to put into it.] Then he must satisfy you not only he bought it, but that it was bought accompanied by the guaranty. These three things proved, your, verdict must follow. If the evidence be such as to leave you in serious doubt as to any one of these things, your verdict must be for the defendant.
    “ A number of facts in this case may almost be taken as admitted without contest. The first is that Mr. Maxwell was certainly engaged in a project to form an oil company, and put off a large number of shares of stock on third parties at a profit. And while the evidence is not perfectly clear on the second point, probably you will not have much difficulty in reaching the conclusion that in doing this he was pursuing the usual mode then pursued. This mode involved efforts which were fair sometimes, and often were not fair. It involved statements of mere opinion, highly colored, that the enterprise could not fail to be a grand success, &c. Again, there is a third fact about which you can have very little doubt, and that is that Mr. Maxwell guarantied to Mr. McCartney and others that the stock should bring $7 per share within six months. There is still another that I think may be taken as admitted, that he not only guarantied to Mr. McCartney his stock, but he said Burke had bought 800 shares and that he had given him (Burke) such a guaranty as he then gave McCartney.
    “Another point seems pretty clear, and that is that this stock never had a market value. There is still another point, that Mr. Burke was intrusted’with receipts for this oil stock. The prima facies of these receipts was that he had bought that stock and bought it with his own money.
    3. [“ With all that I have now stated it by no means follows that the important element of the plaintiffs case has been made out; that in point.of fact he did buy of Mr. Maxwell 800 shares of the stock and paid him $4000.] Yet, if he did not do that in point .of fact, it matters little how much Maxwell may have stated it, and at the same time it does not justify your verdict.
    4. [“ McCartney testifies that Maxwell told him that Burke had paid him, and Burke held receipts which would indicate he had bought 800 shares, and a much greater number of shares, and got certificates for the stock. If these two elements stood alone, if the certificates were for 800 shares, I think you would have no difficulty in reaching a conclusion that plaintiffs contention is right. But unfortunately, as I view' the case, these elements of testimony don’t stand alone. They are accompanied by other facts and circumstances which modify and nullify them, and one of the most important facts is a negative one, that is to say, there is no proof before you, or attempt to prove, that Mr. Burke ever had $4000 to put into the stock.. In an ordinary case it would be obvious you could decide the case with much more satisfaction if it was shown that Mr. Burke had that money at any time. It is a very patent and pregnant circumstance that the case is presented to you without any circumstance to show where the money came from with which he purchased, if he did purchase, from Maxtvell this stock. The only fact we do have in this connection is against him. For, years after, when he demanded a larger salary, we find him to have been receiving before only $1200 a year. We find he bad a wife and family depending on him. A man who only had a wife depending on him might save, but with a family, in these times, it would be rather difficult. I may say, in this connection, in the absence of evidence to the contrary, you are at liberty to regard your own experience in making inferences from evidence. As to the matter of salary, you are at liberty to regard your own experience. If you believe that Burke did not get more than $1200 a year, you might find that he could not well save much. The absence of that evidence is negative testimony of a very damaging character to plaintiff’s case.]
    5. [“ Again, Mr. Burke’s relations to Mr. Maxwell were very confidential. Mr. Burke understood the whole enterprise very well; we may assume he did. We may assume that Burke knew that Mr. Maxwell was not engaged in the enterprise without making a handsome profit, even if Burke did not know the figures. We may ask ourselves, with this assumed knowledge, whether he would have paid a full price which was charged to others in the general market, whether if he did buy he would not have been put on better terms. And yet he claims that he bought not only 800 shares, but paid the full $5 per share.]
    [“ Again, we may naturally assume that he knew well these transactions of Mr. Maxwell, and was a helper with him. He assisted him to get off these shares. The men whose names you find on the paper were the friends and acquaintances of Mr. Burke. You may assume he made considerable efforts to induce them to subscribe to 2250 shares. We may naturally suspect he was paid in oil stock, and would have taken his chances whether this stock would be worth $7 per share. Under such circumstances he would not be entitled to any guaranty.]
    “Again we come to paper ‘A.’ -This was introduced into the case by plaintiff, not as evidence as to what the contract was with Mr. Maxwmll, but merely as corroborative of McCartney, namely, that Mr. Maxwell did give a guaranty to Burke of the shares he took in the enterprise. The paper imports trvo things : first, that Burke had bought a certain number of shares; and secondly, that Maxwell had guarantied to him also.
    6. [“ Burke admits, as to the guaranty part of it, this paper ig a sham.] He does not contend at all that that paper was the paper out of which the guaranty arose. The narr. declares he did not rely on this paper, for that alleges a different undertaking, and an undertaking as of a different date. This paper has no mention of the six mouths in it, but a guaranty that the stock would be worth $7 per share on the organization. The narr. is upon a guaranty that it would reach fS7 per share within,six months.
    7. [“ If paper ‘ A’ is without meaning as to the guaranty, is it any use as to the purchase, or proof of the fact that there was any purchase at all?] But did not the paper make it necessary that Maxwell, when applied to by McCartney and other people, should not falsify it by word of mouth ? Did not Burke and Maxwell understand just what the paper was for ? Did they not fully understand one another ? When Maxwell stated to McCartney that Burke had bought, was it hot the same sham that the paper itself was ? Is it fair, now, for Burke to set it up as a verity ?
    [“Again, I have spoken of the receipts. If the receipts were for just 800 shares it would be better for plaintiff. But, unfortunately, the receipts are for 2250 shares, and all transferred to him about the same date. You will ask did Burke buy all these shares ? McCartney says nothing about 2250 shares. Paper ‘A’ says nothing about them. Plaintiff’s counsel does not pretend that Burke paid for 2250 shares. You will ask yourselves if this amount was not bought and paid for, were the 800 shares bought and paid for ?]
    “Again, paper ‘A’ is for 750 shares, as you will see, and not for 800 shares.
    [“Again, the receipts which were given to Mr. Burke for payments on this stock are for 900 shares, 600 shares, 500 shares and 250 shares. But by no addition or combination of any of these numbers do/W'e reach 800 shares. Now, these are discrepancies which are unfortunate for plaintiff; discrepancies you are entitled to call for free explanation of at his hands.]
    “ As to the other of the two things which plaintiff must make out, there will be no difficulty if you decide the first in his favor, if you really believe that Burke did buy and pay $4000, namely, that Maxwell did guaranty him. The battle-ground then is, whether Burke did actually buy these 800. shares.
    “ So much now for one view of the plaintiff’s case. There are still other considerations which involve it in doubt and suspicion. The first is, Burke’s long silence in the lifetime of Maxwell. If he had so large a sum as $4000 at stake, it would be reasonable that he would call Maxwell’s attention to it from time to time— reasonable that some one, or more than one, who were so laboring with him in that establishment should have heard some reference to this matter between Burke and Maxwell, during a period of more than four years, and concerning so large a sum.
    [“ I do not know how it may appear to you, but it seems to me, under all the circumstances Burke was placed in then and now, that this was a very large sum to him — a sum as to which, if he thought he had any claim, he would not only have appealed to his employer frequently, but would have quarrelled with him outright long before four years had gone by.]
    “ Again, the loan of $500 from Maxwell, more than six months before his death, is a circumstance clearly irreconcilable with the theory that Maxwell was his debtor for so large a sum. It might be. Counsel for plaintiff has argued before you, with much force and with propriety, in view of the relations existing between them, it might have been very unpleasant to have urged this violently. He might have been reluctant to take the risk of a discharge.
    [“ All that is possible, but it is scarcely the usual course things would have taken. , At least in don’t seem so to me. If you look at it in the same light, and think it not usual for a person who had such a claim to ask for a loan of $500, and then afterwards speak of repaying it, and cutting it down even at the sacrifice of selling his wife’s real estate, it don’t seem to me to be usual. If you find it not usual, you will, of course, regard it with suspicion, as you may regard all circumstances which don’t accord with your ordinary experience in life.] A still graver circumstance has been the neglect of Burke to mention this subject to the administrators. Maxwell died 10th September 1870. He was under no sort of obligation to them. There were no relations of trust and confidence between them, nor was he dependent on them for his situation. His claim was against Mr. Maxwell individually; his employment was with Bangs & Maxwell. And besides all that, the evidence of Mr. Smith is that early in October he was going to leave his situation, and he did leave in December. October, November and December slipped away without his saying a word about the claim to them. That certainly you must regard. There can be very little doubt whether that was usual. And yet he does not appear to have spoken of this claim until it was finally apparent that the administrators were about to proceed against him for the overdraft of which you have heard. The argument made with a view to parry the force of the blow as to his silence during his life does not apply to these three or four months after Maxwell died.
    “We now come to what I have spoken of as the overdraft. Undoubtedly, whether he overdrew or not, he was charged with this some time in December. His explanation you will recollect that Mr. Maxwell agreed he should draw at the increased rate. [If true, how natural it would have been for him in view of the peculiar circumstances under which he made it, beginning only a little while before Maxwell’s decease — how natural it would have been for him to have said then and there, I also have a much larger claim than that, so far as Maxwell is concerned ; I have a claim of $5000 growing out of that oil company affair. I propose pressing it. I have not acted unreasonably. It would have been natural for him just at that time to have set up this claim, as well as the allegation that there was no overdraft.]
    “Was the explanation of this overdraft true? Did Maxwell ever promise Burke he should even have the alleged increase? On its face it does not seem very likely. [Assuming my theory of the case, it does not seem very probable that Burke, who upon the books of the firm seems to have been getting but $1200 a year, should have been suddenly promised by Maxwell that he should draw an increase of salary not only during the current year, but that he should g’o back and draw for 1868 and 1869 the increase. Such a thing may be, but it is not usual; such of you as keep books can well form your own conclusions as to this matter. You may know that while it might be not an unusual occurrence for merchants to say you may draw an additional sum, yet that to go back two years beyond the current year is not a very common occurrence. Upon its face there seems to be improbability as to that statement. It is very obvious too that these promises of Maxwell’s could not have been made before the 1st of July 1870, because of the ledger entries then, of which Burke had charge, and which we may be justified in saying he had control of.] On the 1st July, we find the overdraft so far as bookkeeping can show it of $57. It is scarcely probable that would have occurred if Maxwell prior to that time had made the promise. If he had made it, why did he not communicate to his partner? It is not customary for one member of a firm to give away the property of the firm without consulting his fellow member in advance. We have no evidence at all that Bangs ever knew of this. On the contrary, we think the evidence would justify the contrary inference that he did not know.
    “ [Why did not Burke communicate it to Mr. Bangs ? He must have known enough about mercantile business to know that this agreement by one partner was a nullity unless he communicated it. Why did he not communicate it himself to Mr. Bangs ? It is for you to find the answer to this.] He did not communicate it to either of the bookkeepers. He was obviously drawing what appeared, on the account, to be an overdraft. Mr. Lockwood and Mr. Smith must have been conscious of that. If Maxwell had authorized this increase of salary, he would have given some explanation to these young men. You have the testimony he never said anything about it. There is a lead-pencil memorandum in this ledger. We have the testimony of Mr. Smith that the memorandum was not there when he examined the books the first time, sometime in November or December. Why that memorandum, if Burke did not communicate the fact, and never before thought it necessary to make lead-pencil memorandum? Why make it then, if he did not make it in Mr. Maxwell’s lifetime ? [The fact as to whether the salary -was increased or not, is not important as to the real merits of this case.] For if Maxwell did promise, as he is alleged to have done, so far as it js retrospective it did not bind even himself, because of the entire want of consideration. Upon a promise for increased compensation, after services were performed, Burke could not have recovered even against Maxwell. [The promise was not binding on Bangs, because one member of the firm has no right to give away money of the firm, as this would have been. However you may find this fact, it don’t help plaintiff as to the general merits. If false, however, it goes very-far to put an end to plaintiff’s case.]
    “ It is proper to call your attention here to the fact that I have not instructed you as to any matter of law. In all I have said, substantially there is no law, and I am simply giving you my impressions of this case. You are not bound at all by anything I have said. It may be, for want of explanation, I have entirely mistaken the whole subject-matter ; that what I have regarded as points being against plaintiff are without force. If, on consultation with each other, you reach such conclusion, you may disregard all I have said; all this is for you exclusively. Instructions as to mere matter of fact — as to what the evidence has been, as to the weight of it or inferences it will bear, are all for your consideration. You are the judges of the whole matter.”
    8. [“You may have noticed that very rarely in the cases brought before you have I instructed you as to facts; I have instructed you as to the law, hut left the facts to you. This case, however, is a remarkable one and an important one, and I have deemed it important to present views which, were I in the jury-box, would control me in giving my verdict, against the plaintiff.] You are not bound by it; if it don’t accord with your own reflections, you may disregard it. I have not been disposed to take the view that this paper was otherwise than genuine. My view is, the paper was written for a purpose, to put off oil stock on parties named in it and other parties to whom it was shown, and that Maxwell and Burke thoroughly understood it. I have no idea that there is any such degree of wickedness in the plaintiff before you as the crime of forgery would involve.
    9. [“ I think his sole fault consists in using this paper for a purpose for which it was never made. He is using it to give corroboration to another branch of his case. There are a great many degrees of wickedness in the world. I don’t think that Burke’s wickedness amounts to a capacity for a direct crime, while if my impressions are correct his fault is very considerable.] But whatever my views may be as to the paper, whether it be a forgery or not, the question is for you. The counsel for'defendants has chosen to argue upon it, and probably you will deem it proper to give it some consideration. As far as the law is concerned, you may reach your conclusions by comparing the signatures which will go out with you, which are genuine, with this particular signature. I looked at the signature at an early stage of this case, and compared it with signatures produced by defendants. And since the case.has closed I have examined the signature produced by plaintiff. I must say as mere matter of curiosity, there is one thing very remarkable about that signature. You will find the “ e” in all the genuine signatures in whatever shape he may make it — you will find the “e” always fairly developed, but here the “e” seems entirely omitted. But still that is mere matter of curiosity in this case. I cannot believe myself that that paper is a forgery. ' Should you conclude that plaintiff’s claim for $4000 is a good one, you will have probably to deduct the $1400 and interest upon it — your verdict will be for plaintiff for that much less.
    10. [“ But should you find against plaintiff as to the oil stock guaranty, you will have still to consider the question of set-off, and if you find there was an overdraft of $1400, you will have to find not merely a verdict for defendants, but will find due them so much as the overdraft amounts to.]
    “ Whether there was an overdraft in fact I do not propose to argue, though I have a very decided opinion as to it. -The case is in your hands.”
    The verdict was for the defendant with certificate of indebted-, ness from the plaintiff of $1702.40.
    The plaintiff took a writ of error; he assigned for error,
    I. The portions of the charge in brackets.
    2-10. The parts of the charge in brackets, numbered respectively from 1 to 9.
    3. The part of the charge in brackets numbered 10.

      J. Gr. Johnson, for plaintiff in error,
    as to the extent of the judge’s power in charging, cited Insurance Co. v. Halden, 12 Johns. 513; Dittmars v. Commonwealth, 11 Wright 337; Mohney v. Evans, 1 P. F. Smith 84; Ralston v. Groff, 5 Id. 278.

      O. E. Morgan, Jr., and Gr. Junhin,. for defendants in error,
    as to set-off of partnership debt against an individual claim against one partner, cited: Tustin v. Cameron, 5 Wharton 379; Smith v. Myer & Aber, 10 Harris 36 ; Solliday v. Bissey, 2 Jones 347; Wrenshall v. Cook, 7 Watts 464; Silberburg v. Pincus, 6 Phila. 533.
    March 13th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

' The right of a judge to express an opinion upon the evidence has been recognised in a number of cases. In Dittmars v. Commonwealth, 11 Wright 335, it was said by Thompson, J.: “ It is not error upon the part of the court to express an opinion merely upon the facts of the case, if they are properly referred to the jury. It is often very proper to do so. It aids the jury and subserves the ends of justice. Care must always be taken, however, not to infringe the province of the jury, so as to relieve them from the full responsibility of pronouncing an intelligent judgment upon them for themselves.” The judge has a right to aid the jury by an expression of his opinion upon the effect of the evidence, but not so as to mislead them, or control their deliberations: Mohney v. Evans, 1 P. F. Smith 84; and it must be done in such a manner as not to be one-sided or unfair: Ralston v. Groff, 5 P. F. Smith 276. The learned judge who tried this case in the court below went far beyond any recognised rule in his discussion of the evidence. It may very well be that he regarded it as a case which, to some extent, justified him in influencing the jury. But even if such were his view, he went too far. There can hardly be a doubt but that his charge controlled 'the jury. It is true that near its close he told them that they were not bound by his views, and might disregard them, yet' almost in the same breath he informed them that if he were in the. jury-box he would find against the plaintiff. This, taken into consideration with the whole tone and tenor of the charge, bore so heavily upon the plaintiff as to leave him scarcely a chance; it was practically controlling the verdict. When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories not warranted by the evidence should be studiously avoided ; they can hardly fail to mislead the jury and work injustice. Tested by the principles I have indicated there was error in the portions of the charge referred to in the first, fourth, fifth, sixth, seventh, eighth, ninth and tenth assignments. We have no doubt the learned judge intended to do exact justice, but he unwittingly stepped over the line. So far from the charge being a calm, impartial presentation of the evidence, some portions of it, at least, went far beyond the evidence; deductions and theories are drawn, which, if not wholly unsupported, should have been left for the jury. I have looked in vain through the testimony for anything to justify such expressions as these: “Again, we may naturally assume that he knew well of these transactions with Maxwell, and was a helper with him. * * * You may assume that he made considerable efforts to induce them to subscribe to 2250 shares. * * * We may naturally suspect he was paid in oil stock, and would have taken his chances, whether this stock would be worth $7 per share.” And again : “Burke admits, as to the guaranty part of it, this paper is a sham.” Mr. Burke was not examined, and the record utterly fails to disclose any such admission. It is needless to particularize further; similar errors run all through the charge.

There was also error in the instruction contained in the third assignment. It was not essential for the plaintiff to prove that ho had $54000 to put in .this stock. It was no part of his case. He may have purchased it without the money ; a large proportion of the business transactions of the world are based upon credit. The validity of a contract does not depend as a matter of law upon a cash consideration.

We perceive no error in the remaining assignments.-

Judgment reversed, and venire facias de novo awarded.


text:
    Reserve Mutual Insurance Co. versus Kane.
    1. The liability of a child under the poor laws for the support of a parent, with the natural feelings of affection producing a desire to provide for the comfort of the parent, gives a right to the child to effect an insurance on the life of the parent.
    2. A child has an insurable interest in the life of a parent. The relationship prevents an insurance on a parent’s life from being a gambling adventure.
    February 18th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1874, No. 112.
    This was an action of debt, brought May 3d 1873, by James P. Kane against the Reserve Mutual Life Insurance Company, on a policy of insurance for $2000, issued April 1st 1872, by the defendants to the plaintiff, on the life of his father, John Kane.
    The case was tried April 15th 1874, before Briggs, J.
    The plaintiff gave evidence of the death of John Kane on the 26th of June 1872. The father had come from Ireland ; had lived in this country two or three years ; plaintiff paid $120 for bringing his father and family to this country ; $50 had been repaid him by the mother; the father intended to repay him, but had not; the father was a laborer; kept house from April to June 1872; was 55 years old when he died; left a widow, three sons and a daughter; the plaintiff paid through affection, but expected the father would have paid it had he lived; the money paid by him brought over the father, mother, brother's and sister-; he expected the father would compel the brothers to pay their passage-money back.
    The defendants’ points were,
    1. If the jury find from the evidence that the plaintiff was, at the execution of the policy of life insurance, an adult son of John Kane, then as such he had no insurable interest in the father’s life, and the verdict should be for the defendants.
    2. If the jury find from the evidence that the plaintiff represented, at the time of his application, that he had an insurable interest in the life of John Kane, it is now incumbent upon him to satisfy the jury that he had such an interest, and if he has failed so to do, the verdict should be for the defendants.
    3. Plantiff, as a creditor, can only recover in this case the amount of his outlay on behalf of his father.
    The court refused the points, and directed the jury to render a verdict in favor of the plaintiff for the amount of said policy, $2000, less six months’ premium unpaid, and for the interest, amounting to $2085.34. The jury so found.

      The defendants took a writ of error, and assigned the refusal of their points and the instruction of the court, for error.

      H. M. Dechert, for plaintiffs' in error, as to first assignment, cited :
    Dalby v. India Life Insurance Co., 15 C. B. 365 ; Shilling v. Accidental Death Insurance Co., 2 H. & N. 42; Ruse v. Mutual Life Insurance Co., 23 N. Y. 516; Lord v. Dall, 12 Mass. 115 ; 3 Kent’s Com. 268 ; Halford v. Kymer, 10 B. & C. 724 ; Bunyon 16 ; Dowderwell on Life Insurance 19 ; Shilling v. Accidental Death Insurance Co., 27 L. J. Exch. 16 ; Miller v. Ins. Co., 2 E. D. Smith 268 ; Mitchell v. Union Life Ins. Co., 45 Me. 104; Franklin Life Ins. Co. v. Hazzard, 41 Ind. R. 116; Loomis v. Ins. Co., 6 Gray 396; Stevens v. Warren, 101 Mass. 564; American Ins. Co. v. Robertshaw, 2 Casey 189 ; Bevin v. Conn. Mutual Life Ins. Co., 23 Conn. 244; Cammack v. Lewis, 15 Wallace 643; Fox v. Penn Mutual Life Ins. Co., 4 Bigelow Life R. 485; Pritchet v. Insurance Co. of North America, 3 Yeates 458 ; Craig v. Murgatroyd, 4 Yeates 168; Adams v. Penna. Ins. Co., 1 Rawle 106 ; Delaware Ins. Co. v. Archer, 3 Id. 223 ; Ellmaker v. Franklin Fire Ins. Co., 6 W. & S. 439; Edgell v. McLaughlin. 6 Whart. 176.
    If the interest relied upon be that of a creditor, then the policy must be reasonably proportioned to the amount of the indebtedness, and will not be good beyond that amount: American Life Ins. Co. v. Robertshaw; Fox v. Penn Mutual Life Ins. Co., supra.

      D. 0. Harrington, for defendant in error.
    — Parents and children have insurable interests in each other’s lives : Loomis v. Eagle Life Ins. Co., 6 Gray 396. So sister and brother: Lord v. Dall, 12 Mass. 115 ; Mitchell v. Union Life Ins. Co., 45 Me. 104; Trenton Mutual Life & Fire Ins. Co. v. Johnson, 4 Zabriskie 576 ; Bunyon 23; Barker v. Morris, 1 Moo. & R. 66; Bevin v. Conn. Mutual Life Ins. Co., 23 Conn. 251.
    March 6th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

By the 28th section of the Poor Law of June 13th 1876, the father and grandfather, and the mother and grandmother, and the children and grandchildren of every poor person not able to work, shall, at their own charge, being of sufficient ability, relieve and maintain such poor person, at such rate as the Court of Quarter Sessions of the proper county shall order and direct. Maintenance of a father or mother unable to work is, therefore, a legal liability. When we add to this the feelings of natural affection and the desire produced by these feelings to provide for the comforts of parents, the right to effect an insurance on the life of the parent, to carry out these purposes, ought not to be denied. It would be technical in the extreme to say that a son has no insurable interest in his father’s. life. Poverty may overtake the father in his lifetime, and thus both father and mother be cast upon the son; or if the father die before her, the necessity may fall at once upon the son. Why then should he not be permitted to make a provision, by insurance, to reimburse himself for his outlays, past or future ? What injury is done to the insurance company ? They receive the full premium, and they know in such case, from the very relationship of the parties, that the contract is not a mere gambling adventure, but is founded in the best feelings of our nature, and on a legal duty which may arise at any time. We are of opinion that the policy is not void.

Judgment affirmed.