text:
    Romig’s Appeal. Estate of Peter Haffly, deceased.
    1. Although receipts are not indispensable, yet it is the imperative duty of registers, auditors, and the judges of the Orphans’ Courts, to require some distinct and definite form of proof to establish the validity of demands against decedents’ estates.
    • 2. In the administration account of the executors of II. one hundred and sixty-one items of credit were claimed, for one-half of which no vouchers were filed with the register or auditor. The auditor and court allowed the executors §400, the amount of sundry small sums expended by them, without taking receipts or credits therefor. No right to this sum had been asserted in the administration account. This allowance was made under the testimony of one of the executors, whose recollection of the expenditures was vague and uncertain, and who had kept no account whatever of any of the items entering into this amount. Held, that this allowance was erroneous.
    May 8th 1877.
    Before Agnew, C. <L, Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Lancaster coxmty: Of May Term 1877, No. 108.
    This was the appeal of Reuben Romig, guardian of Simon Haffly, a minor grandson and legatee of Peter Haffly, deceased, from the decree of the court confirming the report of the auditor upon the administration account of the executors of said Peter Haffly, deceased.
    The facts are stated in the opinion of this court.
    The only question passed upon by this court was that raised by the following exception:—

      “ Tbe auditor committed an error by allowing the accountants a credit of $400, for small items paid out, without taking receipts, for which no credit Avas asked by them in their account, but allowed by the auditor solely upon one of accountants’ own testimony (to whose examination the exceptant objected), upon a new item of credit, AYhich did not appear in the account — said accountant being called by himself to prove said item of credit.”
    The court, Patterson, A. L. J., dismissed this exception, and from this decree this appeal was taken.

      A. J. Eberly, for appellant.
    The auditor credited the executors Avith the amount of sundry small items expended by them, Avithout taking receipts or taking credit in their account, Avhich one of the accountants SAvears amounted to $400, more or less. This evidence is too indefinite and unsatisfactory to set aside the safeguards pro-Added for the protection of decedents’ estates. If the oath of the accountant is sufficient, the purpose for AA'hich money'was expended cannot be inquired into under like circumstances. The evidence Avas not sufficient to supply the Avant of vouchers: Act 15th of March 1832, sect. 29, Pamph. L. 143; Mylin’s Estate, 7 Watts 64.

      William R. Wilson, for appellees.
    The executor being called to the stand by the appellant Avas competent as a Avitness in his pAYn behalf: Act 15th April 1869, Pamph. L. 30; Mylin’s Estate, supra.

    May 21st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

One hundred and sixty-one items of credit were claimed in the administration account of Peter Haffly’s executors. Eor a large proportion of these — perhaps for one-half of them — no vouchers Avere filed Avith the register or produced before the auditor. Among the items Avas one for “ cash paid sundry small payments, $40,” which the first report alloAved. In the second report a further allowance of $360 was made to the executors, as “ the amount,” in the language of the auditor, “ of sundry small sums expended by them without taking receipts or credits therefor.” No right to this last sum had been asserted in the administration account or at the first audit. The alloAvance was made under the testimony of Peter Haffly, Jr., one of the executors, who was called as a Avitness by the counsel for the exceptant. In answer to an inquiry regarding the “ sundry small payments of $40,” Mr. Haffly said: “These were small sums for which I had no receipts and no memorandums. I guessed it was $40 ; it might have been more or less. I thought I had spent that during the last year for the estate. I do not know how much of the $40 I spent for my own use; I do not know that any Avas spent for my OAvn use.” To a question by his OAvn counsel, as to his knowledge and recollection of the amount of money he and bis co-executor had paid out in small items in the course of the administration, for which he had taken no account, the witness replied: “Anyhow, about $400.” He added: “It maybe less and it may be more; I kept no memorandum of it.”

It is provided, by the 29th section of the Act of the 15th of March 1832, that every register, before he shall allow the accounts of any executor or administrator, shall carefully examine the same, and require the production of the necessary vouchers or other satisfactory evidence of the several items contained in them. Receipts are not indispensable, but it is the imperative duty of registers, auditors, and the judges of the Orphans’ Courts, to require some distinct and definite form of proof to establish the validity of demands against dead men’s estates. It may well happen that small sums may be expended for travelling bills, official fees, or the services of domestics, or even in the discharge of trifling debts, where it would be unreasonable to insist on the production of written evidence. But in some way the want of the written evidence must be supplied. Accounts should be kept, if for no other purpose, to indicate at least accuracy and good faith. There is no question as to the competency of Mr. Haffly as a witness, for he was called by the adverse party. His competency, however, did not give the effect of adequate evidence to vague conjectures that did not even profess to rest on his recollection of a single concrete fact. It was said by Mr. Justice Rogers, in Mylin’s Estate, 7 Watts 64, that while cases may arise where the Orphans’ Court, in the exercise of a reasonable discretion, may supply the want of a regular voucher by the oath of a guardian or administrator, yet “it must be done with great caution. It is a kind of evidence on which little reliance should be placed; it should be resorted to with great delicacy; and even then should be sustained by some corroborating proof.” In this case not only -were vouchers entirely wanting, but no account of any of the items entering into an aggregate sum so significant as $400 had been kept by the executors. More than that, the parol testimony did not specify a single instance in which a payment had been made. There was no proof even of the existence of demands alleged to have been discharged. The decision in the court below was founded on what was admitted to be merely the accountant’s guess. A rule that would subject the estates of decedents to the hazard of depletion on such evidence as this, would be as unsafe as it would be unwise. The allowance to the executors, under the facts shown by the record, was wholly indefensible.

It is ordered and adjudged that so much of the decree of the Orphans’ Court as granted an allowance to the executors of Peter Haffly of $40 in the first, and $360 in the second auditor’s report, be reversed, at the costs of the appellees. The residue of the decree is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Barbara Gesell’s Appeal.
    An order of the Orphans’ Court awarding an inquest in partition is not a definitive decree and no appeal lies therefrom.
    May 9th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1877, No. 148.
    This was the appeal of Barbara Gesell from the decree of the court awarding an inquest in partition in the estate of Abraham Erisman, deceased.
    The proceedings commenced by the petition of John B. Good, guardian of John Erisman, filed August 21st 1876, and which set forth, that Abraham Erisman died intestate in September 1843, leaving a widow named Barbara, who in August 1846 married John C. Gesell, who died in 1865, leaving said Barbara surviving him; said Abraham Erisman also left six children surviving him, viz., Admiral, Jacob, Samuel, who died March 5th 1875, leaving a widow named Catharine and one child, John Erisman, a minor over fourteen years of age, the petitioner’s ward, John, Mary Blanchard, and Henry, who died in 1843 intestate, unmarried and without issue, leaving his mother Barbara surviving him; that said Abraham Erisman died, seised of certain real estate in the city of Lancaster; that no partition or valuation of this real estate had been made; and prayed the court to award an inquest to make partition, &c.
    The answer of Barbara Gesell, filed August 28th 1876, says that she is now and has been for more than thirty years the sole owner of all the real estate in the petition described, and has been and is in possession thereof; and prays that an issue may be directed to try and determine the fact of such ownership, and that the petition may be dismissed.
    The replication of John B. Good denies the sufficiency of the answer, and avers that the same is untrue, “ save and except, as in said answer stated, that the said respondent, Barbara Gesell, has been in possession of said real estate, * * * as tenant in dower and guardian of the children of said deceased, ever since the death of her said husband.”
    Depositions were taken, and, after argument, the court, Patterson, A. L. J., awarded the inquest.
    .From this order an appeal was taken.
    In the Supreme Court a motion was made to quash this appeal.

      M. Brosius and J. B. Grood, in support of the motion.
    The order is not such a definitive decree as is contemplated by the 59th section of the Act of 29th of March 1832, Purd. Dig. 433, pl. 136, authorizing appeals from the Orphans’ Court.

      'There is no authority for an appeal from such an interlocutory judgment in the Orphans’ Court. The practice in analogy to the writ of error is to let the parties wait until the power of the court has been exhausted and a final decree made : Eckfeldt’s Appeal, 1 Harris 171.

      William, Aug. Atlee, contra.

    The decree is a definitive decree. The answer filed brought up the whole question as to the right of the petitioner to partition; it brought before the court the questions of jurisdiction and such as relate to the parties, property and possession, and the court, in decreeing as it did, passed on those questions. The inquisition is merely the execution of the decree, merely carrying into effect the judgment of the court. Errors in either an original writ or in an execution can be rectified by appeal or writ of error, but appeal to the manner of execution would hardly bring up the original writ and enable the Supreme Court to rectify errors made before judgment. If there be error in the decree of the court it is better that it should be rectified now “ before incurring the expense and costs of the partitionHoram’s Estate, 9 P. F. Smith 152. _
    _ It is difficult to draw a distinction between an order of inquest and an order of sale. A decree of sale by the Orphans’ Court is definitive, and it is for this cause an appeal may be taken from it before the execution of the order to sell: Hess’s Appeal, 1 Watts 255; Robinson’s Appeal, 12 P. F. Smith 213. Robinson et ux. v. Glancy, 19 P. F. Smith 89, seems to decide the contrary ; if properly considered it only decides that when an appeal has been taken to a decree of sale, and that decree affirmed, a second appeal cannot be taken. If an order of sale is definitive why is not an order of inquest ?
    October 1st 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

This is an appeal from an order of the Orphans’ Court awarding an inquest of partition. A motion is made to quash the appeal on the ground that the order is not a final decree.

The 59th-section of the Act of 29th March 1832, Pamph. L. 213, declares “ any person aggrieved by a definitive sentence or decree of the Orphans’ Court, may appeal from the same to the Supreme Court.” It further declares “ no appeal shall be allowed unless the same be entered and security given within three years after the final decree.” Thus it appears the statute gives no appeal except from a definitive or final decree. It therefore follows that unless the awarding of an inquest be a definitive or final decree, no appeal lies in this case.

In one sense every decision or order of the court, during the progress of a case, may be called final. That particular step may not be retraced. Yet in law they are intermediate or interlocutory, not final or definitive. A writ of error, nor an appeal, will not lie at each stage of the proceeding. However much an intermediate decision or order may affect the result, it is not subject to review here until that final result has first been reached. Hence a writ of error does not lie to a judgment quod computet, in account render : Beitler v. Zeigler, 1 P. & W. 135; nor to judgment substituting parties on a scire facias: Bossler v. Johns, 2 Id. 331; nor to a judgment given for the plaintiff, upon a demurrer in an action sounding in damages: Logan v. Jennings, 4 Rawle 355; nor on a judgment of respondeat ouster: Foster v. Commonwealth, 8 W. & S. 83. So, a decree of the Orphans’ Court, for a trustee under a will to file his account, is interlocutory, not final, and no appeal lies therefrom: Eckfeldt’s Appeal, 1 Harris 172; nor does an appeal lie to an order of the Orphans’ Court to execute a decree of sale: Robinson’s Appeal, 12 P. F. Smith 213; Robinson et ux. v. Glancy, 19 Id. 89.

It was held in Hess’s Appeal, 1 Watts 255, that an order of sale by the Orphans’ Court, for the payment of debts, was of such a definitive character that an appeal would lie. So it will lie to a decree of sale made after confirmation of partition: Robinson’s Appeal, supra. The reason therefor then given by the present chief justice, is, “ that the decree condemns the property to conversion and the owner’s title to divestiture.” The opinion distinguishes between the decree of sale, and the order of sale, that executes the decree.

The awarding of an inquest does not condemn the property to conversion, nor the owner’s title to divestiture. It is not necessarily any more than the first step towards a valuation or appraisement. It has none of the characteristics of a decree of sale. It disturbs no right. It settles no title. It authorizes no sale.

It may result in a division of the land; but the whole action of the inquest works no conversion of the property. It divests no title. A full execution of the order still leaves the property, land, and the title of each owner in every part undivested. The confirmation of the court is necessary to give due effect to the inquisition. All previous action is only so many steps towards this result. When it is reached, the decree in partition is first made. Prior to this time, all action is in the nature of an inquiry to ascertain whether, and how, partition can legally be made. When the report of the inquest comes up for confirmation, and the court is asked to decree partition, all persons interested have a right to be heard. Objections to jurisdiction, to the alleged rights of the parties, and to the regularity .of the proceedings, may all be considered and determined. The decree then made that the partition remain firm and stable for ever, is definitive and final. Here then is a resting place. The partition proper is then completed. It precedes any order of sale, or any allotment of the purpai’ts. From this final decree any person aggrieved may appeal. Any person interested can have his alleged grievances adjudicated and the validity of the partition determined before he is required to elect to take a purpart, or suffer the property to go to a sale. An appeal duly taken, with security, would suspend or supersede further action predicated on the decree.

The cases of Herr v. Herr, 5 Barr 428 ; Painter v. Henderson, 7 Id. 48 ; Lair v. Hunsicker, 4 Casey 115; and Murklein v. Trapnell et al., 10 Id. 42, are not in conflict with the views now stated. They show the conclusive effect of a decree of partition, in the Orphans’ Court, unappealed from. It cannot be controverted collaterally. We fully assent to their correctness. The effect of a definitive decree in partition is there correctly stated; but the mere order awarding an inquest has no such conclusive effect. The order is preliminary only. No case has been cited showing this court ever held otherwise. It is in law, as well as in fact, the beginning only, and in no' sense the end. It is clearly interlocutory. As was well said by Mr. Chief Justice Gibson in Eckfeldt’s Appeal, supra, “ it would be oppressive to drag a suitor here on every intermediate order.” As the only assignment of error is to awarding the inquest, and no decree of partition has been made, the appeal is premature.

Appeal quashed.

Chief Justice Agnew filed a dissenting opinion, in which Justices Gordon and Woodward concurred.


author: Mr. Justice Gordon

text:
    Eby’s Appeal.
    Where a testator directed the sale and conversion of his real estate into cash to be divided between his daughter Esther and the heirs of his daughters Elizabeth and_ Mary in equal shares, the husband of Mary, the latter having died without issue, was entitled to her share of the fund so realized as the “ heir” of his wife as to her personal estate.
    May 10th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Lancaster county t Of May Term 1877, No. 98.
    Appeal of Mary Eby and others, legatees under the will of Jacob Schumacher, deceased, from the decree of the court making distribution of the proceeds of the estate of said decedent.
    Jacob Schumacher died in Lancaster county in 1836,'leaving a will dated August 26th of that year. He died owning considerable real and personal estate, and left surviving him his widow and four children, to wit, Christian, Esther, married to Abraham Shelly, Elizabeth and Mary and three grandchildren, the children of Jacob, a deceased son. At the time of the death of the testator Elizabeth and Mary were both unmarried and considerably advanced in years. The widow of testator died in 1838, and Elizabeth died unmarried in 1864. Mary was married in October 1845 to John Gensemer, she being at that time aged about fifty, and died in 1875, her husband surviving her, but leaving no children,.
    Jacob Schumacher, the testator, in his will provided, inter alia, as follows :—
    “ Item. I do give and bequeath unto my beloved Wife Esther and two Daughters Elizabeth and Mary all that my plantation adjoining John Becker and others Containing about One hundred :acres of Land more or less, Also the Forty acres of Land Bought of Reiff’s Estate, Together with my House and Kitchen furniture, my Stock of Cattle Whatsoever of which I shall die possessed of, also my farming urensils and other movable property (except Bonds, Notes, Book accounts and Cash) To hold the same to them, my said Wife Esther and my two Daughters Elizabeth and Mary during the term of their natural lives or the life of the Survivor Or Survivors of them, for their yearly income and maintenance during said term, but it is my will that if any or both of my said Daughters should get Intermarried that then and in that case she or they shall be excluded and debarred from the Income out of the land aforesaid but if the income out of the said Land should be insufficient for the support .and maintenance for my Wife and Daughters in manner aforesaid my Executors shall pay unto them out of my estate yearly so much so that they may not want.”
    And as to the real estate made this further provision :—
    “ Item. I do hereby order and direct- after the Deaths of my Wife and Daughters the whole of my real estate not hereinbefore given and bequeathed shall be sold by my Executors, also the personal property what may be left by them and convert the same into cash, then to divide the same in manner following, my son, Christian, shall have no part out of the money raised out of my Real Estate that is to be divided among my three Daughters, Esther, the wife of Abraham Shelly, and the heirs of Elizabeth and Mary in equal shares, including such sums by them received previous to such settlement.”
    After the death of Maiy Gensemer the property described in the above clause in her father’s will was sold by the administrators cum testamento annexo, Christian Schumacher and George Eby, and their account thereof having been confirmed by the Orphans’ Court the balance in their hands for distribution, viz., $12,368.82, was referred by said court to an auditor to report a distribution thereof among the persons entitled to the same under the will of testator.

      Over tbe distribution of two-thirds of this balance there was no contest. The other third, $4289.60, was claimed by John Gensemer, as surviving husband of Mary, and under the above-cited clause in the will as the heir of his wife. This claim was resisted by the appellants, who were the heirs and next of kin of Mary Gensemer, who claimed to have the fund distributed among them, as the persons designated by the testator to take the fund realized from the sale of the property devised to her for life, and after her death to be converted and a portion thereof limited to her heirs by the terms of the will.
    On behalf of John Gensemer it was contended before the auditor that as heir of the wife, or as standing relatively to her personal estate in a position corresponding to that of the heir of realty, he was entitled to the one-third of the fund; while for the testator’s grandchildren it was urged that the term “ heirs” is to be taken as used in its strict legal sense and does not include a husband.
    The auditor, A. Slaymaker, Esq., after an able and learned review of the cases of Patterson v. Hawthorn, 12 S. & R. 112; King v. King, 1 W. & S. 205; Reed v. Buckley, 5 Id. 517; Buckley v. Reed, 3 Harris 83; McGill’s Appeal, 11 P. F. Smith 46; Letchworth’s Appeal, 6 Casey 175 ; Gibbons v. Fairlamb, 2 Id. 117; Furguson et ux. v. Stuart’s Executors, 14 Ohio Rep. 140, held that there was nothing to be found in this will that is inconsistent with, but on the contrary, much to favor the construction of the word “heirs” as meaning, in the clause in question, those entitled, under the Statute of Distributions, to the personalty of one dying intestate, and that consequently the share of Mary must be awarded to her husband, John Gensemer. Exceptions were taken to this report, which the court overruled and confirmed the report, from which decree this appeal was taken.

      Thos. E. Franklin and N. Ellmaker, for appellants.
    The surviving husband is not the heir of his wife and does not take under that designation, unless the will clearly shows that such was the testator’s intention. His interest in her real estate is not that of heir, but of tenant by the curtesy, to affect which the wife must have been, during her lifetime, seised of an estate in fee. But, as the direction to sell after Mary’s death works, as is stated, a conversion into personalty, it is contended that the husband surviving is entitled to claim as her personal representative under the Act of Distributions. We think it very clear that he cannot claim directly through her as her personal representative, because she never had, and in the nature of things never could have, any interest whatever in the legacy. Her interest was altogether real, a life estate in the land. The legacy was not to her and her heirs, nor to her or her heirs, but directly to her heirs. The word “heirs” must, therefore, be construed,- not as substitutionary, but as a designation of the persons to take after her death, and as it could not he known who would be her heirs until her death, it follows that no vesting of the legacy could take place during her lifetime, and that no interest therein could pass from her to her personal representative at her death. This presents a striking difference from the class of cases relied on by the learned auditor.
    If then it be admitted, as we think it must be, that Grensemer, the surviving husband of Mary, cannot claim any share in this bequest as the personal representative of his deceased wife, can he claim it as filling the description contained in the will designating the person to receive it as her heir ?
    The word “ heirs” applied to personalty, means next of kin: Vaux v. Henderson and Horseman v. Abbey, 1 Jac. & Walk. 388; Guttings v. McDermott, 2 Myl. & K. 69; 3 Redfield on Wills, p. 434, chap. 13, sect. 46, and authorities there cited; Scudder v. Vanarsdale, 2 Beasley 109 ; Hankins’s Estate, 4 W. & S. 300 ; Doody v. Higgins, 9 Hare, App. 35 (41 Eng. Chan. Rep.).
    And “ next of kin” means nearest of kin without reference to the Statute of Distributions: Elmsley v. Young, 2 Myl. & K. 270 (7 Eng. Chan. Rep.); Withy v. Mangles, 4 Beav. 358, affirmed in the House of Lords; S. c. 10 Cl. & Fin. 215 ; Gundry v. Pinniger, 1 DeGex, Macn. & Gr. 502; Cooper v. Denison, 13 Sim. 290; 2 Redfield on Wills, p. 398, chap. 13, sect. 47.
    The words “legal representatives,” “personal representatives,” or “ representatives” simply, Avhen used in a will, have an entirely different construction from the words “ next of kin.” They have reference to the Statute of Distributions, while the words next of kin have no reference to it: Smith v. Palmer, 7 Hare 225; King v. Cleaveland, 26 Beav. 26 ; s. c. 4 DeGex & Jones 477 ; Dixon v. Dixon, 24 Beav. 129; Wallis v. Taylor, 8 Sim. 241.
    The relation of husband and wife does not constitute the parties entering into it next of kin to each other. This is the doctrine of the civil law, and is universally recognised by all the authorities, both in England and in this country: Watt v. Watt, 3 Ves. Jr. 244 and Sumner’s note; Garrick v. Lord Camden, 14 Id. 372; 2 Kent’s Com. 136; Storer v. Wheatly’s Ex’rs, 1 Barr 506. Furguson v. Stuart’s Ex’rs, 14 Ohio 140, cited by the auditor, is not at all in conflict with these authorities.

      H. C. Brubaker, for appellee.
    The cases of Patterson v. Hawthorn, and the other authorities in the report, were applied by the auditor, not for the purpose of showing that they were strictly analogous to the present one, as contended by the counsel for appellants in their argument', hut merely as authority for the construction of the word “ heirs” with reference to pérsonalty, so as to include the husband. The auditor says expressly that he “ does not wish to be understood as holding that in this, as in the cases cited, the bequests were vested in the persons whose distributees or representatives are claiming the money so bequeathed. On the contrary, in his opinion they clearly did not so vest, for the legacies are not given to Elizabeth and Mary, or their heirs by substitution for them, but directly to those heirs — that is, to those who shall be found to answer that description, when the fund out of which the legacies are to be paid comes to be distributed. If, therefore, the husband of Mary is entitled to a share of this fund, he is so entitled, not derivatively, but directly, as falling within the terms used to designate the legatee.”
    May 28th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

The main intent of the testator was to provide for the support and maintenance of his wife and two unmarried daughters, Elizabeth and Mary, for and during their several lives. For this purpose he set apart his plantation adjoining John Becker and others, together with the furniture of his house, stock, farming utensils, &c., and should the property so set apart prove insufficient to afford the maintenance thus designatéd, he directed that it should be supplemented from other parts of his estate. Having in this manner carefully provided for those whom he considered the most dependant1 upon his care and providence, he next proceeds to dispose of such of his estate as should remain after the death of these prime objects of his bounty. To this end he directs that the whole of his property, real and personal, thus remaining undisposed of, shall be sold by his executors, and the proceeds thereof divided in the manner following, viz.: “.My son Christian shall have no part of the money raised out of my real estate; that is to be divided among my three daughters, Esther, the wife of Abraham Shelly, and the heirs of Elizabeth and Mary, in equal shares, including such sums received by them previous to such settlement.” ^From the foregoing it is apparent that the fund for distribution is strictly personal, and even the idea that any part of it sprang from real estate, is maintained only in order to indicate from what portion of that fund Christian shall be excluded. 'Git follows, that this matter must be governed by the ordinary rules applicable to the distribution of personal property. (/Such being the case, unless a contrary intent is indicated by the will, we must construe the word “heirs,” as founcHn that will, as equivalent to “ representatives” or “ distributees.” Gin such case, the husband must be taken to be an “heir” of his wife as to her personal estate; and not only do our distribution acts so in effect provide, but this idea is sustained by many decisions, commencing with Patterson v. Hawthorn, 12 S. & R. 113, and ending with McGill’s Appeal, 11 P. F. Smith 46. This conclusion is objected to for the reason, that, as this legacy did not vest in Mary, wife of , John Gensémer, the appellee, but was limited directly to her heirs, the above cited cases do not apply, inasmuch as the husband could not take as administrator or representative of his wife. But chis seems to be the very point met in the case of Gibbons v. Eairlamb, 2 Casey 217; for the question therein arose whether the husband of a female legatee, who died before the time at which the bequest would have vested was to be regarded as her “ heir or representative,” within the meaning of the will, and it was held that he must so be considered though he could not take as administrator. Regarding the matter from the stand-point of legal interpretation and we conclude that the decree of the court below must be sustained. Nor can we come to a different conclusion in seeking for the testamentary intent. Without a single expression to the contrary, why should we suppose that Jacob Schumaker intended that the words which he used should have a meaning different from that of their well known legal signification ? In the case of Esther, the wife of Abraham Shelly, the gift is absolute and unconditional, and yet the testator must have known that, in the event of her death, her husband would take as her representative. But if he did not intend to exclude the husband of Esther from the possibility of his bounty, we may reasonably infer that he did not intend to treat in 'a different manner the husband which Mary might choose. That he contemplated the possibility of her marriage is sufficiently obvious from the fact that he limits the legacy to her heirs directly, whereas, had he considered it certain that she would die unmarried, it is more than probable that he would have provided for the distribution of this remainder of his estate among his own heirs and beneficiaries. If, however, he had her marriage in view he must at the same time have had in view the relation which her husband would occupy to her personal property in case of her death.

Decree affirmed.


author: Mr. Justice Woodward

text:
    Brinks versus Heise et al.

    1. The time and order in which a witness is examined are within the discretion of the court.
    2. Where it is alleged that an assignment was made to defraud creditors, to sustain the charge of fraud it is competent to prove any fact tending to show the relations and conduct of the .'parties thereto.
    3. It was proper to instruct the jury that an alleged fraud must he established either by direct proof or by facts to warrant a presumption of its existence, and that if the assignment was made for the purpose of hindering and defrauding the creditors, that fact, as against contesting creditors, was fatal to its validity.
    4. There was sufficient evidence of a fraudulent combination in this case to entitle it to the consideration of the jury, and its submission to them was proper.
    May 10th 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.

      Error to the Court of Common Pleas of Lancaster county: Of May Term 1877, No. 97.
    Attachment execution sur judgment, issued by Heise & Kauffman against J. B. Reynolds, defendant, and A. H. Brinks, garnishee. Plea, nulla bona.

      ' On the 2d of October 1872, Brinks entered into a contract to grade sections 6 and 7 of the Columbia and Port Deposit Railroad, and on-the 9th of January 1873 contracted in writing with Reynolds to grade part of section 7.
    On the day of its date the following agreement ivas entered into:—
    “Article of agreement made this 29th day of October A. D. 1873, between A. H. Brinks and J. B. Reynolds, of the first part, and George E. Baldwin, of the second part, to wit: J. B. Reynolds, one of the party of the first part, agrees to pay to George E. Baldwin, of the second part, the sum of $3888, $1000 of which was given this day, and $2888 borrowed at previous dates before, out of his final estimate for work done on section 7 of the Columbia and Port Deposit Railroad, with interest from date until day of payment..
    “And the said A. H. Brinks, of the.first part, agrees to hold himself responsible to said George E. Baldwin, of the second part, for $1000 absolutely, and $2888 also, providing the said amount will be due on final estimate of said J. B. Reynolds, for work done on section 7 of Columbia and Port Deposit Railroad, according to his agreement with A. H. Brinks. And said George E. Baldwin agrees not to demand the money until said final estimate is paid by the Columbia and Port Deposit Railroad.
    (Signed) J. B. Reynolds,
    A..H. Brinks,
    Witness: Georg® E. Baldwin.
    Frank P. Day.”
    And endorsed on said agreement is a writing, of which the following is a copy:—
    “ Columbia, October 29th 1878.
    “ On the expiration of the terms of the within agreement, for value received, we promise to pay George E. Baldwin, or order, the sum of $3888, with interest, without defalcation.
    (Signed) . J. B. Reynolds,
    A. H. Brinks.”
    By his contract with the railroad company, the latter was to retain the one-sixth of the money earned by Brinks until the completion of the contract; and by his contract with Reynolds, Brinks was to have, as his profit on Reynolds’s work, one-half the amount thus retained.

      On the 8th of December 1873, Reynolds gave Heise & Kauffman a judgment note, on which judgment was entered for $796.10. This note was given for supplies furnished Reynolds in the prosecution of his work under his contract.
    On the 6th of February 1874, Heise & Kauffman issued this attachment execution.
    About the 17th of February 1874, eleven days after this attachment issued, Brinks came to Lancaster, having been told by Kauffman, one of the plaintiffs, that the creditors of Reynolds would meet him there to make arrangements how the work of Reynolds was to go on. He did not see or meet any of the creditors there, but met Reynolds. He then and there arranged Avith Reynolds that he, Brinks, should be his paymaster and go on with the Avork — Brinks to pay the hands and all expenses, and to give Reynolds money to pay his personal expenses; and then the balance that was left when the work Aras done ay as to go to, or for the benefit of, the creditors, Ayhoever Avere entitled to it.
    Then Brinks came back to Columbia, and saAV Messrs. Heise & Kauffman, the plaintiffs, and told them the arrangement that was made, and they said they Avere perfectly satisfied with it. Under that arrangement Reynolds Avent on Avith the Avork and finished it, and Brinks retained in his hands and accounted for $2978.96, which it was agreed was the correct balance due Reynolds. Of this balance Heise & Kauffman claimed $921.21, to satisfy their judgment, Avhich claim Avas resisted by BaldAvin, Avho claimed the Avhole fund by virtue of the assignment contained in the above agreement. This agreement it appeared was delivered to BaldAyin some ten days after its date.
    The plaintiffs contended that this assignment Avas fraudulent and was made to defraud the creditors of Reynolds. At the trial before Patterson, A. L. J., Day, the subscribing witness to the above agreement, was called by the garnishee to prove its execution. The garnishee then read the paper to the jury. Brinks was then called to prove his signature to the endorsement on the instrument, and the plaintiff recalled Day for cross-examination, to. which the garnishee objected. The court overruled the objection, Avhich Avas the first assignment of error.
    Day was then asked, “ Did you see the $2888, recited in the agreement as part consideration, ‘ borrowed at previous dates,’ paid to Mr. Baldwin?”
    This question, under objection, was allowed, and Ayas the second assignment.
    Plaintiff in rebuttal recalled Brinks, and asked him, “ When did you first know anything about this indebtedness of $2888 to Mr. BaldAAÚn — the previous indebtedness ?”
    The allowance of this question Avas the third assignment.

      The fourth point of the garnishee and the answer thereto were as follows:—
    Fraud is not to be presumed; it must be proved by the party alleging it. There is no proof of fraud, or want of consideration in the assignment or transfer by defendant to George E. Baldwin, and the testimony of defendant and of said Baldwin as to the consideration, and the said balance being insufficient to pay said Baldwin’s claim, said Baldwin is entitled to said balance due by the garnishee, and the verdict must be in favor of A. H. Brinks, garnishee.
    Answer. “ It is true, fraud cannot be presumed; those alleging fraud must show it to the satisfaction of the jury, by proof, by facts • — the jury, it is true, may infer fraud from facts clearly proved. The jury in this case, therefore, will pass upon that question, and the question of consideration in the assignment or transfer by •defendant J. B. Reynolds to George E. Baldwin, is for your determination, under all the evidence in this case, and if you find there is want of consideration, in the assignment referred to, or that the same is fraudulent, then Baldwin would not be entitled to the balance in the hands of Mr. Brinks, the garnishee, and the verdict should be in favor of the plaintiffs in this attachment for the amount of said balance, or the amount of their judgment and interest; but if the jury should be of opinion, from all the evidence, that no fraud exists in the assignment or transfer of Reynolds to Baldwin, and that a good and valuable consideration subsisted between them, by reason of Reynolds having honestly borrowed money from Baldwin and owed him for same at the time, then in this issue the verdict should be for A. H. Brinks, the garnishee.”
    The court charged:—
    “ It is alleged by the plaintiffs that the assignment is fraudulent —made to defraud the creditors of Reynolds. We say to you that where fraud is alleged it must be proven, it cannot be presumed; it may, however, be presumed by the jury from the facts clearly and conclusively proven.
    “And now we instruct you that if you believe from all the evidence in the case that the transfer or assignment dated October 29th 1873, of Reynolds to Baldwin, was for valuable consideration, and not fraudulent — not.in fraud of these plaintiffs or other creditors— then you should find in favor of the garnishee, A. H. Brinks. But if you should find from all the evidence in the case that the assignment to George E. Baldwin was made for the purpose of hindering and defrauding the creditors of the said J. B. Reynolds, the plaintiffs in this suit, or others, then your verdict should find the amount of money in the hands of Brinks, the garnishee, and also in favor of the plaintiffs, Heise & Kauffman.”
    The answer to the foregoing points and the portions of the charge quoted constituted the remaining assignments of error. The verdict was for the plaintiffs for $2978.96, and after judgment thereon the garnishee took this writ, assigning the errors heretofore noted.

      H. M. North, for plaintiff in error.
    It was irregular to interrupt defendant’s testimony for the purpose of the cross-examination of Day: Floyd v. Bovard, 6 W. & S. 75; Roland v. Miller, 3 Id. 390; and his cross-examination should have been confined to the subject-matter about which he was called upon to testify: Floyd v. Bovard, supra.

    It was not competent for plaintiffs to prove in rebuttal that Brinks had no knowledge before said assignment of any indebtedness of Reynolds to Baldwin, as it contradicted nothing alleged or proved, by the defence, and was clearly not evidence that there was no such debt.
    It was error to submit the question of fraud to the jury upon the facts of this case: Irwin v. Shoemaker, 8 W. & S. 76 ; Stine v. Sherk, 1 Id. 202; Stouffer v. Latshaw, 2 Watts 165; Newbaker v. Alricks, 5 Id. 185 ; McClurg v. Willard, Id. 275; Switland v. Holgate, 8 Id. 385; Urket v. Coryell, 5 W. & S. 60; Evans v. Mengel, 1 Barr 68; Cunningham v. Smith, 20 P. F. Smith 450 ; Howard Express Co. v. Wile, 14 Id. 203; Sartwell v. Wilcox, 8 Harris 117; Zerbe v. Miller, 4 Id. 488; Allen v. Bank, 7 P. F. Smith 129; Sinnickson v. Painter, 8 Casey 384; Bear’s Estate, 10 P. F. Smith 430 ; Caldwell v. Boyd, 7 Id. 322; Kaine v. Weigley, 10 Harris 179.

      J. F. Frueauff and S. P. Eby, for defendants in error.
    The case of Floyd v. Bovard, 6 W. & S. 75, has been repeatedly commented on by this court, and in doing so they have decided: That the order of examination or cross-examination in the court below is no cause for reversal: Schnable v. Doughty, 3 Barr 392; Helser v. McGrath, 2 P. F. Smith 531; Jackson v. Bitch, 12 Id. 451. A party may cross-examine a subscribing witness, called to prove an instrument, as to the res gestee at its execution, though it be new matter: Markley v. Swartzlander, 8 W. & S. 172; Bank v. Fordyce, 9 Barr 275; Jackson v. Litch, supra.

    The question to Brinks was properly admitted, because-it was not asked simply to fix a date, but to show some of the words and acts of Reynolds and Baldwin, which, combined with other evidence, go to show the alleged fraud:
    1. Either in trumping up a claim, having no bona, fide existence from Reynolds to Baldwin; or,
    2. Using the goods obtained from Heise & Kauffman by Reynolds to produce a fund in the hands of Brinks for the payment of Baldwin, an outside creditor.
    There was evidence sufficient to go to the jury on the question of fraud.

      A good consideration of itself would not validate the assignment if made to defraud a creditor: Ashmead v. Hean & Moulfair, 1 Harris 585. Whether a fraudulent design existed was for the jury : Dean v. Connelly, 6 Barr 239.
    October 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

It is not apparent how any hazard of mistake or injury was incurred by the permission given to recall Frank P. Day for cross-examination. He was the subscribing witness to the agreement between Reynolds, Brinks and Baldwin, and the question put to him was, whether or not payment of part of the consideration for the agreement was made at the time of its execution. In regular order, the cross-examination should have been closed before the paper was read, but its admission or rejection could have been in no manner controlled by the new evidence. Offered at any stage of the trial, the effect of the paper would not be changed. The whole subject was within the discretion of the court.

■ At the very foundation of the case of the plaintiffs, in their attempt to fasten a fraud upon Reynolds and Baldwin, was the allegation that the sum of $2888 had never been advanced by Baldwin, and that the claim for it was fabricated and baseless. Surely it was competent to show by Brinks that the fact of such an advance had not been made known to him up to the time when he bound himself conditionally to pay it in the agreement that was executed on the 29th of October 1873. It was a fact illustrating the relations and conduct of the parties, and was relevant and competent, if there was any relevant and competent testimony throughout the causp, to sustain the charge of fraud.

Nor are the objections better founded that have been made to the portions of the charge set out in the fifth, sixth and seventh assignments of error. The jury were instructed in substance that an alleged fraud must be established either by direct proof or by facts to warrant a presumption of its existence clearly and conclusively proved. They were instructed also that if the assignment to Baldwin was made for the purpose of hindering and delaying the creditors of Reynolds, that fact, as against the plaintiffs, who were contesting creditors, would be fatal to its validity. This was in accordance with recognised authority. Lord Mansfield said, in discharging a rule for a new trial in Cadogan v. Kennett, 2 Cowper 432 : “ If the transaction be not bona fide, the circumstance of its being done for a valuable consideration will not alone take it out of the statute. I hav'e known several cases where persons have given a fair and full price for goods, and where the possession was actually changed, yet being done for the purpose of defeating creditors, the transaction has been held fraudulent, and therefore void.” And it was ruled in Ashmead v. Hean & Moulfair, 1 Harris 584, that a conveyance of real estate, made with the intent on the part of the vendor, known to the vendee, to delay, defeat and hinder a particular creditor from obtaining his debt, though made for a valuable and full consideration, is, as against such creditor, fraudulent and void.

In reality, there is but a single significant question in this cause. Was there any evidence of the existence of a fraudulent combination legitimately entitled to the consideration of the jury ? On the 2d of October 1872, A. H. Brinks, the garnishee and defendant below, entered into a written contract to grade sections 6 and 7 of the track of the Columbia and Port Deposit Railroad Company. One-sixth of the money earned was to be retained until the completion-of the contract. On the 9th of January 1873, J. B. Reynolds entered into a sub-contract with Brinks to grade part of section 7. Brinks was to receive as his profit on the sub-let section one-half of the one-sixth of the estimates retained. Although the contract was executed in January, Reynolds did not begin his work until May 1873, and until that time, and indeed until the 1st of July following, remained in the service of the Union Railroad Company in Baltimore at a salary of $100 a month. The work was carried on by him until October 1873, when his funds were exhausted, and he had fallen into debt, Heise & Kauffman, the plaintiffs below, who had furnished him with powder, fuse and other materials, being among his creditors. In that month Reynolds, Brinks and Baldwin met in Philadelphia. In the course of a conversation between them, Reynolds told Brinks that if he had $1000 he could pay off all his debts and go on with the work without any trouble. Brinks replied that.he “should not stick for $1000.” And Baldwin then remarked: “ If you haven’t got the money, I have got money in bank, and I will lend it if you will endorse or stand good for it.” Reynolds and Baldwin went to Baltimore, and a few days afterwards Reynolds returned with a note for $3888 instead of $1000. This note Brinks refused to sign. Then the agreement of the 29th of October 1873 was executed, by which Brinks bound himself to pay Baldwin $1000 absolutely, and $2888 (recited as “ having been borrowed at previous dates”), provided that amount should be due to Reynolds on the final estimate for his work under the contract. The plaintiffs obtained their judgment against Reynolds on the 8th of December 1873, and issued an attachment against him making Brinks garnishee on the 6th of February 1874. A new arrangement, of which the plaintiffs were informed and to which they agreed, was the consequence of this attachment. Reynolds was to continue working, and Brinks was to receive the .estimates and pay the wages of the men, the necessary charges for materials and Reynolds’s personal expenses. At the completion of the contract, the balance due Reynolds, if any, was, according to the testimony of Brinks, “to go to, or for the benefit of the creditors, whoever were entitled to it.” The balance found due in the end was $2978.96.

In the course of the trial it was ascertained that no notes or receipts had been given for any of- the sums of money which, it was alleged, Reynolds had received from Baldwin. The dates and amounts were obtained from a small memorandum-book, on one page of Avhich they had been entered in pencil, and it Avas contended that their appearance indicated that all the entiles had been made at one time. Tayo sums of $500 each were charged before Reynolds’s work under the contract was begun. Advances to the amount of $2500 were charged before he relinquished his position as superintendent of the Union Railroad Company. Nothing was said of these advances in Philadelphia, when Reynolds’s need of $1000 to pay his debts and complete his contract was explained. Brinks knew nothing of Baldivin’s claim until Reynolds brought the note from Baltimore. And no notice Avas given to the plaintiffs of the existence of that claim Avhen they were informed of the modification of the contract betAveen Reynolds and Brinks. They AYere encouraged to, suspend proceedings on their attachment by the assurance that any balance that should eventually be found due to Reynolds should “go for the benefit of his creditors.” To say the least, the acts of the parties' in this transaction were, in a good many respects, exceptional and peculiar. It is not in the usual course of business to make loans at intervals during a period of six months, amounting to a sum so significant as $2888, without providing some more authentic evidence of indebtedness than a pencil memorandum made by the lender, and remaining undisclosed throughout a protracted negotiation 'for a fresh loan, for which a third person was to be security. What ought to be the effect of the evidence in relation to Reynolds’s statements in Philadelphia ? Was the knowledge of Baldwin’s claim fraudulently withheld from the plaintiffs? Was the Avhole arrangement, which was consummated by the agreement of the 29th of October 1873, a fraudulent contrivance to AYithdraw any balance due Reynolds on his contract from the grasp of his creditors ? These were questions which only a jury could answer. They Avere to weigh the evidence in each detail and as a whole, and adjust its value. It has not been shown that they did not weigh it justly.

Judgment affirmed.


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    Evans’s Administratrix versus Reed.
    Where one of the parties to the original action is dead, in a subsequent action, brought by his administratrix for the same subject-matter, the surviving party cannot testify to matters which occurred during the lifetime of the original plaintiff, although the testimony of the latter taken in the original suit has been admitted in evidence.
    May 10th 1877.
    Before Agnew, C. J., Sharswoou, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1877, No. 164.
    This action as originally brought was account Bender by Jacob Evans against George K. Reed. Julius Levy ivas also named as a defendant, but his name was subsequently stricken from the record on plaintiff’s motion.
    Jacob Evans, the plaintiff, was examined on the trial as a witness in his own behalf. A verdict was rendered for plaintiff. The case, as developed on the trial, satisfied the judge before whom it ivas tried that the action should have been “ assumpsif,” and not, as originally brought, “ account render.” He therefore set aside the verdict and directed a new trial.
    Subsequently to this Jacob Evans, the plaintiff, died, and Caroline Evans, his administratrix, was substituted, and the form of action changed to assumpsit.
    When the cause was again called for trial, counsel on behalf of plaintiff, offered to read from the notes of testimony taken by the judge on the first trial, the testimony of Jacob Evans, then plaintiff, but since deceased.
    These same notes contained the evidence of Reed, who was also examined on the trial.
    The offer was rejected by the court, and no other evidence being given the court directed a verdict to be found for the defendant.
    The plaintiff took a writ of error, alleging that the court erred in refusing to admit these notes of the testimony of Evans, and the court sustained this contention and reversed the lower court. [See report of case in 28 P. F. Smith 415.]
    When the cause came on for trial again, after the testimony of plaintiff, including the judge’s notes of the evidence of Evans, was closed, the defence offered Reed, the defendant, as a witness in his own behalf. The plaintiff objected on the ground that as the action then stood the suit was by an administratrix, and the plaintiff having died the defendant could not testify as to anything which took place in the lifetime of Jacob Evans.
    The court overruled this objection and admitted the testimony.
    In discharging a rule for a new trial, the court, Livingston, P. J., in an opinion reviewed the following cases, decided since the preceding trial of this case: Evans v. Reed, 28 P. F. Smith 415; Speyerer & Co. v. Bennett’s Ex’rs, 29 Id. 445; Pratt v. Patterson, 31 Id. 114 ; and Sheetz v. Norris, 2 Weekly Notes 637, and then continued: “ So far as we have been able to gather the facts from the several cases, as reported, none of them appear to meet or rule the case before us, for the question now presented was neither raised nor passed upon in any of them, to wit: Where a plaintiff on the record in a cause has been fully examined and cross-examined, in open court, as to all the matters in controversy in the suit, and subsequently dies, and his administratrix is substituted— a re-trial ordered, and on the re-trial the testimony of the plaintiff, taken on the first trial, is admitted in evidence and read as a deposition to the jury, can the living defendant be admitted as a witness and permitted to testify in the cause “in answer to such testimony or deposition ?
    “ This is the question here raised, and here again Evans v. Reed, in the language of Judge Mercur, ‘ differs from any cause which has preceded it.’
    “ When this suit was instituted both parties Avere competent witnesses — both rendered clearly so by the same act, the Act of April 15th 1869, Pamph. L. 30. One of the parties, on a former trial of the cause, was examined and testified very fully as to all matters ■in controversy in the suit, and thus, as the Supreme Court have decided, perpetuated his testimony, so that it could be used (as a deposition may by the rules of law be read on the trial of a cause) at any subsequent time, and in any trial of the cause, whether he was absent, sick or dead.
    “ He has, therefore, testified to all he knew relating to all matters concerning this trial as fully as he could do if present. ‘ He being dead yet speaketh.’ His mouth has not been sealed even by death. His representative has the full benefit of his testimony. Why, then, he having been so permitted to testify on the trial, should the lips of the defendant, Avho Avas so unfortunate as to be alive and present at the trial, be closed, and he not permitted to speak in answer to the testimony of the original party to the cause against him. Justice and equity certainly do not require it. It is not to be presumed that the plaintiff, whose testimony was admitted on the trial, Avas less interested when he testified as to the contracts, conversations and transactions between him and George K. Reed, the defendant, out of which his cause of action originated, than the defendant was Avhen we permitted him to testify. Therefore the policy of the law-on the ground of interest does not require it — actus legis nemini facit injuriam. As w-e have seen ‘ the tendency of both judicial and legislative action 'is against the exclusion of evidence on the ground of interest;’ and the Act of 15th April 1869, is an enlarging and enabling act. The Hay, therefore, at the commencement of this action, placed the parties litigant on a perfect equality, and the intendment of the law- is that they should be kept on an equality, so far as their respective rights are concerned, until its close. It does not intend that by any construction given it one should gain •an undue advantage over the other.
    “ The deposition of the deceased party was read under the law permitting the testimony of absent, sick or deceased witnesses, when properly presented by depositions, to be read in evidence on the trial of a cause. This witness, it is true, was dead; but suppose he had only been sick or absent, and his deposition presented and admitted in evidence, what objection could have been successfully urged to prevent Reed, the defendant, from testifying ? But this witness is dead. What to him (so far as the purposes of this trial are concerned) was death but absence — absence caused by the act of God ? And shall the manner of his taking off, or the reason of his absence, work to the great injustice and injury of the defendant by preventing him from testifying in answer to the deposition of the absent witness ? It is said that actus dei neminifaeit injuriam. Shall this act of God, in removing and causing the absence of plaintiff after he has testified, be said to wrork so great an injustice and injury to the other party as to deprive him of the right to testify ? We think not.
    “ In addition to this what does this third section of Act of 1869 mean when it says that ‘ the testimony of witnesses, authorized by this act, may be had by deposition or commission issued, as the case may require, with such notice to the party to be examined, and to the adverse party, as is now or may hereafter be prescribed by the rules of the proper court touching the taking of depositions and testimony on commission ?’ Does it not mean that the testimony 'thus taken and presented by deposition, offered and admitted in evidence in the cause, shall have the same force and effect as if the witness were present in court and testifying on the witness stand? Is not that the intention and effect of the act? Where, then, is there to be found a reason, where the deposition of one party has been taken and used on the trial, whether he be absent by sickness, death or otherwise, for refusing the other party permission to testify in answer to such deposition, so ta,ken and used.”
    The admission of the evidence of Reed, the defendant, was the error assigned by plaintiff who took this writ.

      E. Qhampneys and M. Brosius, for plaintiff in error.
    The surviving party is not a competent witness in a trial of the cause after the death of one of the parties, as to any matters occurring in the lifetime of the deceased party: Pratt v. Patterson, 3 Weekly Notes 161; Speyerer v. Bennett’s Ex’rs, 29 P. F. Smith 445 ; Eilbert v. Finkbeiner, 18 Id. 243 ; Lahey v. Heenan, 3 Weekly Notes 181. This case is not distinguishable in principle from those above cited. To hold that the admission of the testimony of the deceased party, taken when he was competent, and perpetuated in the judge’s notes, removes the disqualification of the survivor, is to say that incompetency can be made competency by an accident, and that the operation of the proviso of the Act of 1869 depends upon the contingency of the preservation of the testimony of a party taken at a former trial. It was this consideration, doubtless, which led this court to declare, in Karns v. Tanner, 16 P. F. Smith 305, that “when death closes the lips of one party, even-handed justice requires the mouths of both to be sealed.”
    257

      George M. Kline and Daniel G. Baker, for defendant in error, adopted for their argument the opinion of the court below.
    June 26th 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

This record presents a single question. That is, whether the defendant was competent to testify to matters which transpired during the life of the original plaintiff. That he was incompetent is clearly ruled by Pratt v. Patterson, 31 P. F. Smith 114. That case is very similar to the present one. There, in a former suit, in the lifetime of both parties, each party had testified, and the testimony had been reduced to writing. The verdict was set aside and the suit discontinued. A second suit between the same parties was brought for the same subject-matter. Before the trial the defendant died, and his executors were substituted. On the trial at Nisi Prius, before our late brother Williams, the plaintiff was offered as a witness to testify in regard to matters which occurred in the lifetime of the defendant. The witness was rejected. On the case being certified to this court for review, we affirmed that ruling.

■ The statute provides a method by which the evidence of a party competent to testify may be perpetuated. Each party stands on an equal footing. The deposition of each party may be taken, subject to cross-examination by the opposite party. If the case be tried in the life of both parties, the testimony taken on the trial may afterwards be treated as a deposition.

■ If a party neglects or omits to take, at a proper time, the steps necessary to secure and perpetuate his testimony, he must suffer the loss resulting to him therefrom. It by no means follows that because the testimony of the deceased party, duly taken in his lifetime, was given in evidence on the trial, therefore the surviving party is madé competent to go on the stand to testify in his own behalf. When the testimony of the party since deceased, was taken, he was a competent witness. He was subject to cross-examination by the opposite party. The lips of the survivor were not then dosed. He could then have offered himself as a witness to explain or contradict the testimony of the opposite party. If he did so he thereby perpetuated his own testimony, and it is now available. If he then failed to perpetuate it, there is no equality in now permitting him, after the death of his adversary, to go on the stand to testify to anything which transpired during the life of the opposite party. The lips now closed in death cannot prompt any cross-examination, nor explain or contradict the testimony thus given.

As a matter of fact, in this case, the testimony of the survivor was actually taken in the lifetime of the opposite party. Yet he withholds that testimony and claims the right to now testify generally. The learned judge erred in admitting the testimony.

Judgment reversed, and a venire facias de novo awarded.


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    Kohler versus Luckenbaugh.
    1. A plaintiff is not entitled to judgment by default for want of an appearance under the Act of 1836 unless he has filed his declaration within the time prescribed by the statute.
    2. Where the plaintiff has not filed his declaration in time and judgment by default has been entered, the defendant does not estop himself from taking advantage of this irregularity by his appearance and defence before a jury of inquiry.
    3. 'l'he practice of directing the writ of inquiry to the sheriff for the purpose of having damages assessed by a jury to be summoned by him, is orderly and regular, notwithstanding the Act of 1722, as that act does not abrogate the ordinary practice, but simply gives the plaintiff the power, if he so chooses, to have the court make an order for such assessment.
    May 10th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Yorh county: Of May Term 1877, No-90.
    On the 23d of May 1874, Jacob Luckenbaugh issued a summons in case for slander against William Kohler, which was made returnable to the first Monday of July 1874. It was served on defendant on the 4th of June 1874. No further proceedings were had in the case until April 8th 1876, when the plaintiff filed a declaration and on the 19th of the same month in open court, judgment by default was entered against the defendant for want of an appearance. On the 27th of April 1876 a writ of inquiry of damages issued on said judgment.
    • Kohler then filed a petition, which set forth: “ That in obedience to the summons in the said case he appeared, on the day named in the summons, at the court-house, in York, in the said county, but found no court in session; that he went to the prothonotary’s office on that day and inquired when said case would be tried; that the prothonotary told him it would not be tried at' that time, and that he could not tell him when it would be tried, and that he would get further notice of the trial, or words to that effect; that relying on receiving further notice from the plaintiff, or from some one on his authority, as to when he should appear again, he did not consult legal counsel at that time; that he never heard anything more about the trial of said case from that time until the 7th day of July 1876, when he received notice to appear at the sheriff’s office before the sheriff, to answer in said writ of inquiry of damages on the 18th inst.; that on appearing at the sheriff’s office, according to said notice, he heard for the first time that judgment had been taken against him in said case for want of an appearance, and that a jury of twelve men was there called to inquire of the damages and costs sustained by the plaintiff in said action; that the sheriff has returned said inquisition, whereby it appears that they find and award $ 19 and costs to the plaintiff; that the petitioner is advised and believes that the said judgment, taken against him as aforesaid, is irregular and without authority of law, and that the said inquisition of damages issued thereon is irregular and illegal for the following reasons, to wit:—
    “1. Because the plaintiff’s declaration in said action was not filed on or before the return day of the writ.
    “ 2. Said judgment, being irregular and unlawful, no writ of inquiry of damages could lawfully issue thereon.
    “ 3. If said judgment were regular and lawful, yet, being an interlocutory judgment, no writ of inquiry of damages should have issued thereon without an order of court.
    “ 4. The jury called by the sheriff, in pursuance of said writ of inquiry of damages, was not taken from the panel of jurors summoned to attend the court to which said Avrit of inquiry is made returnable.
    “ 5. Said inquiry of damages Avas not made in open court.”
    The petitioner therefore prayed the court to set aside the said inquisition and to open said judgment, that the defendant might be let into a defence.
    The court, Wickes, A. L. J., granted the rule, and after argument discharged the same, saying
    “ According to the interpretation given by the Supreme Court to the Act of 1836, a judgment entered by default for want of an appearance, when the narr. has not been filed before the return day, is that the judgment is irregular and voidable, but not absolutely void. And if, in this case, at any stage of the proceedings before appearance, the defendant had applied to the court, this judgment Avould have been stricken off, or at least opened to alloAv defendant an opportunity to be heard. But this is a step that must be taken at a proper time and in a proper AYay. And if instead of taking advantage of such an error, the defendant AYaives it, a.nd by an act totally inconsistent with this ground of defence, appears and takes the chances of a favorable result before the sheriff’s inquest, he is afterwards estopped from complaining of the irregularity of the proceedings. Such we understand to be the doctrine of the court in Harres v. Commonwealth, 11 Casey 416. We think, therefore, that the attendance of the defendant in this case before the inquest, and entering upon the inquiry, is a waiver of the irregularity in entering the judgment. This reasoning would also apply 'to the alleged irregularity in issuing the writ of inquiry, but we think that writ wras properly issued, .and in accordance with our practice and with what seems to be the practice in other parts of the state.”
    The court here referred to the provisions of the Act of the 22d of May 1722, Purd. Dig. 1168, pi. 30, that justices who give an interlocutory judgment shall at the motion of plaintiff make an order in the nature of a writ of inquiry, to charge the jury attending at the same or the next court, to inquire of the damages, &c., and after an allusion to the cases of Bell v. Bell, 9 Watts 47, Wright v. Crane, 13 S. & R. 452, and Sully v. Baum, 1 Weekly Notes 115, continued:—
    “ So it is doubtful whether the course indicated by the Act of 1722 applies at all to a case like this ; but if it does, it certainly does not preclude the plaintiff from pursuing the more usual course, sanctioned by the uniform practice of our courts.”
    Defendant took .this writ, and assigned that the court erred in discharging the rule.

      James Kell, for plaintiff in error.
    The declaration must be filed within the time prescribed by the Act of 13th June 1836, Pamph. L. 572, to warrant a judgment by default: Foreman v. Schricon, 8 W. & S. 43; Dennison v. Leech, 9 Barr 164; Black v. Johns, 18 P. F. Smith 83. Harres v. Commonwealth, cited by the court below, is distinguishable from this case, as there the defendant by pleading his freehold, in stay of execution, waived an irregularity, in the entry of the judgment.
    The writ of inquiry of damages is one not often resorted to in our court, and there is no established practice in regard to it, but when it is invoked the provisions of the Act of 22d May 1722, should be followed and much expense would be avoided. See Bell v. Bell, 9 Watts 48; Wright v. Crane, 13 S. & R. 447.

      Gteorge W. McJElroy, for defendant in error.
    May 28th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

It is conceded that the judgment, in this case, was irregularly taken. The writ was issued to the first Monday of July 1874; the narr. was not filed until the 8th of April 1876 ; nevertheless, on the 19th of the same month, without notice to the defendant, judgment was taken against him, in open court, for the want of an appearance. As, on all authority, to entitle himself to such judgment, the plaintiff should have filed his declaration before the return-day of the writ, the court should have made the defendant’s motion to strike off the assessment of damages absolute. It is urged, however, that the defendant has estopped himself from taking advantage of this irregularity by his appearance and defence before the jury of inquiry. Harres v. Commonwealth, 11 Casey 416, and Crosby v. Massey, 1 P. & W. 229, are cited as favoring this view of the case; but in the first of these cases the defendant pleaded his freehold in stay of execution on the irregular judgment, and obtained it; in the second, the defendant neglected, for two terms after he was informed of the judgment, and until after the execution of the writ of inquiry, to make his application for relief. Had Kohler neglected an opportunity, after he was informed of the judgment, of applying for relief, he would have been estopped. For if one would take advantage of a judgment which is merely irregular, he must be prompt in the assertion of his rights, otherwise he will be taken to have waived them. But the defendant in this case seized his very first opportunity to seek redress. The writ of inquiry was issued only eight days after the judgment; it was returned on the 18th of July, and the motion to set it aside was made on the 24th of the same month. As it nowhere appears that he had notice of the judgment until the day of the inquest, it cannot be said that he did not act with sufficient promptitude. Conceding (though there is no record evidence of that fact) that he did appear and defend himself before the jury of inquiry, it amounts to nothing, for it neither delayed the case nor put additional costs thereon. Besides this, the defendant was entitled to a full defence, which he could not have before the inquest. Had the damages been assessed in court, as the Act of 1722 authorizes, the case would have been different; for, having the opportunity to move the court to strike off the judgment, he could not be permitted to take his chances before the inquest, and afterwards, if the verdict did not suit him, be heard on an application to set it aside.

There is no doubt that the practice of directing the writ of inquiry to the sheriff, for the purpose of having damages assessed by a jury to be summoned by him, is orderly and regular, notwithstanding the Act of 1722. That act but gives the plaintiff the power, if he so chooses, to have the court make an order for such assessment; but it does not abrogate the ordinary practice. Indeed, the only doubt which seems ever to have occurred on this subject was whether the act above recited was not obsolete: Wright v. Crane, 13 S. & R. 447.

The judgment and all proceedings under it are reversed and set aside, and a procedendo is awarded.


text:
    Sower’s Administrator versus Weaver.
    1. The evidence in this case sufficient to establish a parol gift of land.
    2. A parol gift of land from a father to his son-in-law and daughter is empt from the operation of the Statute of Frauds when in pursuance of said "t possession is taken and valuable improvements made, and a fortiori, when 'tne possession has boon undisturbed for a great length of time, or the improvements have added largely to the value of the property.
    May 10th 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of York county: Of May Term 1877, No. 188.
    Ejectment by the administrator of George Sower against Henry Weaver for a tract of sixty-four acres of land. Weaver is the son-in-law of Sower.
    The case was originally tried January 26th 1876, and the verdict was for the defendant. A writ of error was taken by the plaintiff and the judgment of the lower court reversed (see report of case in 28 P. E. Smith 448).
    On the 26th of August 1876 George Sower made his will, wherein 'he appointed hip son John his executor. The testator died on the 6th of June 1876, and his son John on the 10th of the same month. Letters of administration, c. t. a., were granted to John S. Deardorff, on the 21st of June 1876, and he was substituted as plaintiff in the suit. The cause again came on for trial on the 7th of January 1877, before Eisher, P. J.
    On behalf of the plaintiff evidence was then given of the legal title to one hundred and fifty acres of land, of which the sixty-four in dispute formed a part.
    George Sower was quite aged and infirm, and his deposition was read, wherein he deposed in answer to a question how Weaver came into possession of this land:—
    “ He held on for a home; then I proposed I would build him a house on it; he was at this time married to my daughter; I said to him I did build a house on it, and told him he might have it for eighteen years, and might have all he raised on it. That was about twenty-six years ago, and he was to pay all the taxes on it, and build a barn on it; he agreed to that; our bargain was just by words; he took possession of it, after we made that bargain; in about two or three months after the bargain he went into possession ; the house that I built there, was built on it before he went into ■possession; he built a barn on it; but I had to. pay the most of it, his credit wasn’t present; he staid there the eighteen years; he had the income of it during that time, and paid the taxes on it; when the eighteen years were up then, they complained that I had given the boys homes and they had nothing — that is, Elizabeth and her husband; then I proposed to them to give it to them, as I had given land to the boys too — that is, at the township rates, what it was assessed at- by the assessor; they were both together, Weaver and his wife, when I said this; it was in their house where they were living ; they didn’t make me much of an answer to it, and I told them they should consider it; all Henry Weaver said was, he’d like to have it for his own, but he couldn’t take it; there was no more said about it, at that time; I had no conversation with him about it after that. I said to Weaver he must now pay me rent, either the third bushel or fifty dollars; he made no answer, hung his head and said not a word ; I demanded rent several times up at his house, and several times here in the kitchen; he never said a word in answer; it’s a little better than nineteen years now since I sold the Mine Bank school-house lot off of it; he was living in there where he is now living, there on the land ; of course he knew at the time I sold that lot off; he was present and helped to measure it off; I got the money for the school-house lot; I know Henry Weaver has sent his children to school there; Weaver built nothing except the barn; he fenced and improved and limed it a very little. ’ ’
    There was other evidence for plaintiff of a similar tendency.
    It was also in evidence that in 1853 George Sower had conveyed forty perches of the land, part of that occupied by defendant, to the Washington School District, to which conveyance it appeared defendant assented.
    The defence alleged a parol gift from George Sower to Weaver and his wife, and gave evidence thereof, as follows:—
    Elizabeth Weaver, the daughter of George Sower, testified: “If I live till the 25th of February I will be sixty-one years old; I live with my husband on the land in dispute; I married Henry Weaver thirty-four years ago; father said he would divide the farm where John lived on, and build a house if we would go on; I told him I did not want to go there, I could not be at home, and he told me he would build a house on it, and if I was there once and had my stuff there I would be at home; I told him the land was too poor, we could not live on it; he said I could make it good; we went on the land; there was no house on the land at the time he gave me the land; my father helped to build the house; he got the carpenter work of the house done; Weaver, my husband, got the other part of the work done; he dug the cellar and had all the mason work done which was done to the house; we moved in on Whit-Monday of 1846 ; Weaver put up the barn in 1846; we have been living there ever since; when we went there the land was as poor as could be. We could not have lived upon what the land produced at that time; I do not know that George Sower did anything towards building the barn; Weaver employed the workmen to build the barn and paid them ; he paid taxes on the land; made fences; put lime on it; all the manure that we raised he put on; one year he got guano to put on the ground; there is an orchard there — we planted the trees; garden there; Weaver laid out the garden and we fenced it — it is a clap-board fence; we planted fruit trees, apples, peaches, pears, plums, grapes and quinces; we dug the well; nothing more said than I have stated here before we took possession; I never asked him for a piece of land to build a house on; father never said how long we should live there; never demanded any rent or said we should give him any share during the time we lived there; I know they found ore on this land two years this last summer; I did not come to my father eighteen years after we went into possession and complain that the rest had homes and we had none, nor did my husband and myself go at the end of eighteen years; nor did he offer to give it to us at the rate it was assessed for taxation in the township ; nor did he come at'that time to our house and make such a proposition; when the school-house was about being built, father came to our house and asked whether we were willing the school-house should be built on that corner, and whether we were willing to give the land; we said we were willing, it would be so handy to send the children to school; I was never present when my father demanded rent from Weaver.”
    Henry Weaver testified: “In 1845, before I went on this land, George Sower and I went to look at it; I went up with him to look at the place to put the buildings; I said it is hard for me to build there unless I know what I was to do it for; he said he did give it to me and my wife for our own, and with that understanding I went into possession; then, in pursuance of that conversation, I dug the cellar and took possession, and put up the barn, and put up the garden fence, and made fence to keep the cattle out, and did work, and had more than I could do.”
    George Slyder testified: “ I know Henry Weaver and George Sower, the parties to this suit; my mother lived, in 1845, in the fall, in Washington township; then I lived there; I was at my mother’s, and Weaver was making fine wood for her; old Sower came there, and then the assessor, Jacob Gentzler, came; this was in the fall of 1845; the assessor asked the old man, how about that farm — should he assess it in his name; ‘No,’ said he, ‘ I gave it to Henry and his wife; they can do with it now what they please.’ ”
    John Braugher testified: “At the time they were building the barn I had a conversation with George Sower about this property ; he told me he had divided his property, and the big part he gave to John, ‘ and this small part I gave Betsey Weaver; I am going to build this house on it, and whenever the house is finished once Weaver may move in it; then he may fix it up to suit himself, and all he makes on it is his; then to fall to Weaver’s heirs after his death;’ after that Weaver did build a bam on the property; we paled the garden.”

      George S. Harbolt testified: “I know George Sower; about twelve or fifteen years ago I had a conversation with him; he told me that he had given that part of the farm to Henry Weaver and his wife, as part of her legacy.”
    Peter Benedict testified: “ I know George Sower and Henry Weaver; I had a conversation with George Sower in relation to this action about a year ago ; I was collecting tax for fire insurance for Henry Weaver; I went to Sower for the tax ; I asked him what was the reason that him and Henry Weaver and his daughter could not settle the tax; he told me then that when Henry Weaver found out this ore, that Barbara and John told him he should chase Henry Weaver from this farm; that he went to Henry Weaver then; Weaver said he would not go off, and Barbara and John said he should get the sheriff and throw him out; then he said he had no rest until he sent the sheriff and went on with the lawsuit; Barbara and John were the cause of his having no rest, and the ore-bank on Henry Weaver’s land; during this conversation he told me he did give this land to Henry Weaver and his wife Betsey.”
    Daniel Baker testified: “I know George Sower; had conversation with him in relation to the property; he told me how he divided his land amongst his children; how he helped John to the Harbolt farm, and George Sower he gave or sold the piece I live on; he said he gave Betsey the piece Henry Weaver lives on, who can do with that what he pleased.”
    Solomon Gross testified: “ I farmed George Sower’s land; he told me he gave land to Betsey; I was assessor over twenty years ago; I asked old George Sower in whose name it was to be assessed, whether in his name; he said no, I should assess it in Henry Weaver’s name; he said he had nothing to do with that land; he said it belonged to Henry Weaver and his wife; I assessed it in Henry Weaver’s name, and he paid me the taxes for it.”
    Jacob Lichty testified: “I know George Sower well; I had a conversation with him about the land Weaver lived on; I met him at Raffensberger’s' about the time Weaver was. building his house; I said to Sower, ‘You are going to build there1;’ he said, ‘Yes, I have divided my land now; I have given the old stand to John now, and the other part to Henry Weaver, and they shall build on it, and then it shall be theirs, and then they have their own;’ then he said, ‘they will not have to pay any rent any more.’ ”
    James Marshall testified: “ I had a conversation with George Sower; I asked Sower if the property was Henry Weaver’s or not; he said he gave his daughter Elizabeth, Weaver’s wife, the piece of land, and to his children, and he had nothing to do with it.”
    David Myers testified: “I was the assessor in 1846; Jacob Kochenour and George Sower were the assistant assessors that year; we assessed the farm; Sower was present; we assessed it in Weaver’s name; ‘This,’ he said, ‘assess to Weaver-; I gave it to Betz;’ I was the assessor after that, but cannot tell the years; may be fifteen years after that; Henry Weaver paid me the road tax.”
    Other testimony on this subject tended to corroborate the gift. That the property had been improved by the defendant was proved by the testimony of several witnesses, who also testified to the value of the buildings and other improvements.
    George Sower was examined a second time on a rule to take testimony. He swore positively that he did not hear the conversation testified to by Elizabeth Weaver, about the giving of the land to her and her husband. To the various questions asked, he answered, “Not a word of it is true,” as “nothing of the kind was said.” He also denied that he had the conversations with the parties who testified as above.
    The plaintiff’s 4th and 5th points, together with the answers of the court, were as follows:—
    4. That the defence in this case is an equitable one, and the evidence to sustain it must, to be available, be so direct, positive, express and unambiguous as to induce a chancellor to decree a conveyance; that a chancellor must look at the whole evidence in the case; that the whole evidence in this case leaves the alleged equity of the defendant in too great doubt and uncertainty to justify such a decree; and upon the whole evidence in the case the plaintiff is entitled to recover.
    Answer. “ We affirm the first part of this point; but we cannot say to the jury that the whole evidence in this case is in too great doubt to justify a decree; it is for them to say what part of the evidence is true and what false; and if they disbelieve the testimony of George Sower and believe the testimony of the witnesses offered to prove the gift, the evidence is sufficient to prove a parol gift and possession under the gift, and that valuable improvements were made by the defendant in pursuance of the gift.”
    5. That it is an undisputed fact in the case that in September 1858 (more than seven years after defendant was in possession under the alleged gift), George Sower the original plaintiff sold and conveyed a portion of the land embraced in said alleged gift to the Mine Bank School District and received the consideration for the same with the knowledge of, and without objection by, the defendant or his wife, and is inconsistent with and contradicts the inference of a parol gift, and of itself renders such alleged gift invalid, and plaintiff is entitled to the verdict of the jury.
    Answer. “ If the facts are as stated in the point it is correct, and we affirm it. But if the facts are as stated by Mrs. Weaver in her testimony that ‘when the school-house was about being built George Sower came to our house and asked whether we were willing that the school-house should be built on that corner and whether we would be willing to give the land, we said we were willing, it would be handy to send our children to schoolthis agreement to sell the lot is not a fact that contradicts a parol gift, but it is a circumstance to be taken into consideration by the jury in determining whether there was or was not a parol gift.”
    The court, inter alia, charged:—
    “ Under the decision of the Supreme Court in the present case, the testimony of a husband and wife is not to be considered as two witnesses, and the gift must be proved by another witness besides the husband and wife, and that has been done if the jury believed the testimony of the witnesses for the defendant.”
    The verdict was for the defendant, and after judgment the plaintiff took this writ, assigning for error the admission of the foregoing evidence, the answers to the points and the portion of the charge quoted.

      Chapman Fisher, for plaintiff in error.
    The rulings of the court cannot be sustained without overturning Ackerman v. Fisher, 7 P. F. Smith 457; Poorman v. Kilgore, 2 Casey 365; Harris v. Richey, 6 P. F. Smith 395, and a long line of other cases. The evidence in support of the defendant’s equity was insufficient to establish the parol gift, and the case should not have been submitted to the jury: Shellhammer v. Ashbaugh, 2 Norris 24.

      Greorge W. McFlroy and John Cfibson, for defendant in error.
    This parol gift of lands, accompanied as it was by possession and followed by valuable inprovements, is valid: Syler v. Eckhart, 1 Binn. 378; Postlethwait v. Frease, 7 Casey 474; Moore v. Small, 7 Harris 468; Eckert v. Eckert, 3 P. & W. 362; Hugus v. Walker, 2 Jones 174; Collins v. Collins, 2 Grant 117; Stewart v. Stewart, 3 Watts 253; Wack v. Sorber, 2 Whart. 387.
    We claim to have proved a gift executed, possession in pursuance of it, and improvements adding to the permanent value of the land from year to year, by encouragement of the donor, and occupied in such manner and such peaceable and uninterrupted possession as would make it against equity and good conscience to enforce the rule of the statute against the donee.
    In the cases of Aitkin v. Young, 2 Jones 15; Reed v. Reed, Id. 117; Hugus v. Walker, Id. 173, proof of title by parol was, left to the jury — whether there was a contract and possession in pursuance of a contract.
    October 1st 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

That a parol gift, from a parent to a child, properly executed by possession and improvement, is valid, notwithstanding the Statute of Frauds arid Perjuries, will be found to be the settled law of this state since the case of Syler v. Eckhart, 1 Binn. 378. The question is generally one of execution. As in parol sales where the performance has been carried so far, or is of such a character as to make compensation difficult or impossible, the contract is exempted from the operation of the statute. Such will also be the case with a gift where, in pursuance thereof, possession has been taken and valuable improvements have been made; this a fortiori, where this possession has been undisturbed for a great length of time or where the improvements have added lai-gely to the value of the property. Time is always a powerful factor in questions of this kind. Equity is loth to undo a gift or contract at the instance of one who has neglected to move for its rescission until the passing years have grafted new equities upon the transaction, until the donee has grown old and has spent the vigor of his age and the prime of his manhood in the use and improvement of a property long regarded as his own. We pass to the consideration of the case before us. Was there sufficient evidence of a clear and distinct parol gift from George Sower to his son-in-law and daughter, and of its execution on their part, to submit to the jury ? When the case was before us on a former occasion there was not such evidence. There was but the testimony of Weaver, which was at all distinct and positive as to the character of the gift; it was but meagerly sustained by coroborative evidence, and it was positively contradicted by George Sower, the alleged donor. Under these circumstances, we held, that the defendant had not made out such a case as would relieve him from the operation of the statute. As, however, the case is now presented to us we cannot say that the court did wrong in submitting it to the jury. It is true the testimony of Weaver and his wife is exactly what it was before, but the corroboration is much stronger and more precise, and the contradiction of the evidence of George Sower is so positive and complete as to render it of little worth. What we have to consider is not whether the defendant has made out such a case as would entitle him to a decree of specific performance, for it seems to be pretty well settled, in this state at least, that equity will not enforce a contract the consideration of which is only natural love and affection, but whether he has shown enough to prevent the disturbance of his possession by Sower’s legal title. As we have seen, for this purpose, a gift, accompanied by possession, is sufficient. Now, turning to the evidence, we have, firstly, that of Weaver himself, which is the most distinct and positive. He says: “ In the fall of the year 1845, before I went on this land, George Sower, Sr., and I went to look at it. I went up with George Sower and my wife to look at the place to put the buildings. To George Sower I said, it was hard for me to build there unless I knew what I was to do it for. He said he did give it to me and my wife for our own; arid with that understanding I went into possession. Then, in pursuance of that conversation, I dug the cellar and took possession and put up the barn and put up the garden fence and made fence to keep the cattle out and did work and had more than I could do.” It would seem, also, from the evidence, that, in addition to the improvements above mentioned, he planted fruit and shade trees and added considerably to the fertility of the soil by manuring and cultivation ; that from and including the year 1845 the property has been assessed in his name, and during all this time, now some thirty odd years, he has paid the taxes, and, further, he has had the buildings insured in his own name. That the above statement of facts, if admitted, makes out a complete defence ought not to be doubted, for it contains every element necessary to constitute a valid parol gift. What remains, then, is to ascertain if these statements of Weaver are so corroborated by. such other facts and circumstances as, taken together, are equivalent to another credible witness. We have, then, in addition to the defendant’s long and undisturbed possession, a powerful circumstance in itself, the testimony of George Slyder, who says that in the year 1845, Gentzler, the assessor, in the presence of the defendant, inquired of Sower to whom he should assess this land now in suit, and that he, Sower, answered that it should not be assessed to himself but to Weaver; that he had given it to “ Hen and his wife,” they could do with it what they pleased. This declaration, made as it was when the parties were face to face, accompanied by the act of the assessment of the land to the defendant, by the direction of the one and the assent of the other of the parties, was not merely corroborative, but direct, independent and primary evidence of the gift. Moreover, there are the repeated declarations of Sower, from time to time, after Weaver was in possession, that he had given the land to him and his wife. He so said to David Meyers, the assessor for 1846, he, Sower, being assistant assessor for that year, also to Solomon Gross, another assessor, directing in each instance, the assessment to be made to the defendant. To Peter Benedict, after stating that he had given the land to Henry Weaver and his wife, he said he had brought the ejectment only at the urgent solicitation of his children John and Barbara, and this because of the increase in the value of the land by reason of the discovery of iron-ore upon it. Like declarations were made to John Brougher, George F. Harbolt, Daniel Baker, Jacob Lighty, James Marshall and Elizabeth Huntz. It is true a few of these witnesses speak of the gift as to Elizabeth, the wife alone, nevertheless it is all corroborative of the testimony of Weaver and consistent with it, for it all goes to show a continued recognition of the donation made in 1845, and, as it was intended principally for the benefit of Mrs. Weaver, it is not remarkable,that he should sometimes omit her husband’s name when speaking of it. From all this we do not see how the court could have refused to submit this ease to the jury. So great is the array of testimony in support and corroboration of the defence that, if a parol gift of land can be made out at all, it would seem to have been so done in this instance. The assertion of ownership by Sower in 1853, by the sale of one-fourth of an acre of this land to the school directors of Washington township, was, undoubtedly, significant and important, but we cannot say that it was conclusive, and we think it was properly left, under the explanation, of the defendant and his wife, to the jury.

Judgment affirmed.

Sharswood, J., dissented.