author: by Sharswood, J.

text:
    Swayne versus Lyon.
    1. Under a contract for land, the vendee has a right not merely to a good but an indubitable title; only such a title is marketable.
    2. A title which exposes the vendee to litigation is not marketable.
    3. An action was brought against husband and wife, the service on the wife was not personal, a general appearance was entered. The first two counts of the declaration'were for materials, &c., furnished at the request of the wife for the improvement of her separate real estate and averred her liability. The common counts were added averring indebtedness of both. Judgment was confessed generally in open court for the plaintiff under which the wife’s separate estate was sold. Reid, that the purchaser could not convey a marketable title.
    4. The common counts set out a different cause of action from the others, and a general verdict and judgment against the wife would have been erroneous.
    5. A plea of coverture was not needed, the suit being against her as a married woman, and on a collateral proceeding she might show that the debt recovered was not on the first two counts and had not been contracted by her for the improvement of her estate.
    ’ 6. When a former judgment is relied on it may be shown by evidence not inconsistent with the record, that the particular point was not adjudicated.
    7. Collaterally there may be a valid judgment on a' declaration showing no cause of action, but not as against a married woman.
    8. Every judgment against a married woman which does not show her liability on its face is void.
    ,9. In a suit on a contract of a married woman which is absolutely void, her confession of judgment in open court would be invalid.
    10. The purchaser of the wife’s land contracted to sell; a recovery against his vendee in a suit for the purchase-money would not conclude the wife, who might thereafter show that the judgment was not binding on her.
    February 7th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.

      Error to the District Court of Philadelphia: No. 207, to July Term 1870. *
    This was an amicable action of covenant between Edward Lyon, plaintiff, and Franklin Swayne, defendant, filed June 29th 1870i
    The following facts were agreed on in a case stated in the action.
    On the 11th of February 1865, Sarah II. Jermon, the wife of J. Wagner Jermon, was the owner of a lot of ground at the corner of Broad and Oxford streets, Philadelphia; about that time she contracted with William A. Arnold for various articles for the. improvement of the buildings on the lot. On the 2d of February 1867, Arnold commenced an action of .assumpsit against Jermon and his wife.
    The sheriff returned to the writ:—
    “ Served by giving a true and attested copy of the within writ, to J. W. Jermon, one of the defendants, and making known to him the contents thereof, February 2d 1867, and by serving a true and attested copy of the within writ, at the dwelling-house of S. H. Jermon, the other defendant, with an adult member of her family, February 2d 1867.”
    On the 11th of the same month the plaintiff filed a copy of his book entries, of charges made against Mrs. Jermon, which consisted exclusively of articles used in improving the real estate and amounted' to $312.69; the account was from August 21st to November 11th 1865 inclusive. A general appearance was entered to the suit by Messrs. Vail and Stroud. On the 13th of February 1867, judgment was taken against the defendants for want of an affidavit of defence, and the damages were assessed at $336.77. A rule to open the judgment was made absolute March 16th 1867. On the 21st of March a declaration was filed. It set out in 1st count that “ S. H. Jermon, wife of the said J. Wagner Jermon” was indebted to the plaintiff ‘‘in the sum of $5000, for goods and other necessary things by the plaintiff then and there found' and provided and used and applied in and about the improvement and for the benefit of certain messuages and real estate being then and there the separate estate of the said S. H. Jermon at her special instance and request; and also in the further sum of $5000, for the work and labor,- care and diligence of the plaintiff, by him before that time performed and bestowed in and about the improvement and for the benefit of the aforesaid messuages and other real estate then and there being the separate estate of the said S. H. Jermon and at her like special instance and request. By reason whereof and by force of the Act of Assembly in such case made and provided, the said S. H. Jermon became liable to pay to the plaintiff the said several sums above-mentioned, when she should be thereunto afterwards requested.” In 2d count, that “ the said defendants were indebted to the plaintiff in the sum of $5000, for goods and other necessary things hy the plaintiff before that time found and provided and used and applied in and about the improvement and for the benefit of certain messuages and real estate being then and there the separate estate of the said. S. H. Jermon, the wife of the said J. Wagner Jermon, at her special instance and request, and at the special instance and request of the said J. Wagner Jermon; and also in the further sum of $5000, for the work and labor, care and diligence of the plaintiff before that time performed and bestowed in and about the improvement and for the benefit of the aforesaid messuages and other real estate then and there being the separate estate of the said S. H. Jermon and at the like special instance and request. By reason whereof and by force of the Act of Assembly in such case made and .provided, the said defendants became liable to pay to the plaintiff in the manner and form therein provided the said several sums of money above-mentioned, when they should be thereunto afterwards requested.”
    There were also all the common counts, in each of which the plaintiff laid an indebtedness of the defendants of $50,000.
    On the 21st of May 1867, judgment was confessed in open court in favor of the plaintiff for $341.38, with stay of execution for six months. Execution was issued on the judgment, and on the 3d of January 1870, the land was sold to Edward Lyon, the plaintiff, for $2000. An auditor was appointed to distribute the fund arising from the sheriff’s sale. Mrs. Jermon appeared before the auditor by counsel, and claimed the balance of the fund after the payment of the liens.
    On the 29th of April 1870, the plaintiff entered into an article of agreement to sell to the defendant the lot which he had bought at the sheriff’s sale as the. property of Mrs. Jermon, the purchase-money to be $3000, of which $1500 were to be paid on the succeeding 8th day of May and the remainder in one and two years. On the 9th of May 1870, the plaintiff tendered a deed for the lot and demanded the first payment, the defendant declined to make the payment and accept the deed, alleging that the title was not “ good and marketable.” This action was for the recovery of the first payment of $1500. It was agreed that if the court should be of opinion that the plaintiff had “ a good and marketable title,” judgment to be entered for the plaintiff for $1500; if not judgment, to be entered for the defendant.
    ■ The court, (Thayer, J.,) directed judgment to be entered for the plaintiff according to the case stated.
    The defendant took out a writ of error, and assigned the entering of judgment for error.

      C. S. Pancoast, for plaintiff in error.
    The judgment confessed is a void judgment, as to the wife, and a purchaser under it does not take a marketable title: Dorrance v. Scott, 3 Whart. 313; Kerper v. Helfricker, 6 Wright 325; Caldwell v. Walters, 6 Harris 79; Keen v. Coleman, 3 Wright 299; Steinman v. Ewing, 7 Id. 63; Glyde v. Keister, 8 Casey 87. She has no legal capacity to authorize the confession: Glidden v. Strupler, 2 P. F. Smith 400. She cannot submit herself to an award: 1 Comyns Dig. 649; Pullen v. Rianhard, I. Wh. 518; Gratz v. Phillips, 1 Penna. R. 357; Nicholl v. Jones, 4 Law Rep. Eq. Cases 696. She cannot act by. attorney: Pres. on Cont. 177; Graham v. Jackson, 9 Jur. 275. Where it is intended to proceed against the separate estate of the wife, there must be personal service on her, and in the conduct of the suit she must be treated as a feme sole: Dyer v. N. Am. Coal Co. 20 Wend. 570; Jones v. Harris, 9 Ves. Jur. 488; Ferguson v. Smith, 2 Johns. Ch. R. 139; Lillia v. Airey, 1 Ves. Jr. 277; Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251. There are counts for debts for which tlmwife would not be liable, although she might be on the first two counts: Mahon v. Gormley, 12 Harris 83; Heugh v. Jones, 8 Casey 433; Bear v. Bear, 9 Casey 525; Lippincott v. Hopkins, 7 P. F. Smith 328.
    February 16th 1871,

      A. V. Parsons, for defendant in error.
    The judgment was valid: Lippincott v. Hopkins, 7 P. F. Smith 328; Murray v. Keyes, 11 Casey 384; Mahon v. Gormley, 12 Harris 80; Evans v. Meylert, 7 Id. 402; McCullough v. Wilson, 9 Harris 436. Even if the judgment might have been reversed the sale under it passed the title: Stiles v. Bradford, 4 Rawle 401; Hazlett v. Ford, 10 Watts 101; Martin v. Rex, 6 S. & R. 296; Warder v. Tainter, 4 Watts 286; Hiester v. Fortner, 2 Binn. 40.
   The opinion of the court was delivered,

by Sharswood, J.

It has been well and wisely settled that under a contract for,the sale of real estate, the vendee has the right not merely to have conveyed to him a good but an indubitable title. Only such a title is deemed marketable; for otherwise the purchaser may be buying a lawsuit, which will be a very serious loss to him both of time and money, even if he ultimately succeeds. Hence it has been often held that a title is not marketable where it exposes the party holding it to litigation : Ludwick v. Huntzinger, 5 W. & S. 51; Bumberger v. Clippenger, Id. 311; Colwell v. Hamilton, 10 Watts 413; Speakman v. Forepaugh, 8 Wright 363. Unless, then, in this case Mrs. Jermon, or those claiming under her, would be absolutely concluded by the judgment under which the sheriff’s sale took place, which constitutes the foundation of the vendor’s title, from controverting her liability for the debt for which that judgment was confessed, in an action of ejectment to be hereafter brought for the property, the purchaser will be exposed to the annoyance and peril of such litigation.

It is unnecessary to decide how the case would have stood, if, in the declaration filed in the suit of Arnold v. Jermon & Wife, there had been no counts but the first and second, which set out a contract by Mrs. Jermon, or by her husband at her instance and request, for materials furnished and work and labor done in and about the improvement, and for the benefit of her separate estate. It was decided in Lippincott v. Hopkins, 7 P. F. Smith 328, that a married woman is liable on such a contract; and it may logically follow that a judgment rendered against her for it, whether by default, confession or verdict, will have all the leading characteristics of a judgment against a person sui juris. When the law makes her competent to contract in any particular case, it clothes her, as a logical consequence, with all the capacity necessary to give a full remedy to the party with whom she contracts. She has therefore the persona standi in judieio, but only in that particular case. Such appears to be the principle upon which Evans v. Meylert, 7 Harris 402, and McCullough v. Wilson, 9 Id. 436, were determined. In both these cases the judgments were upon mortgages by the wife of her land, duly acknowledged separate and apart from her husband — a contract as to her real estate which she was in that way competent to make.

The law necessarily annexes to the judgment on the scire facias by the mortgagee, or his assigns upon such a mortgage, all the legal incidents of, such a judgment against any other defendant. If this were not so his remedy would be defective, inadequate and incomplete. The mortgaged estate would never command a full and fair price at the sheriff’s sale, if the vendee could have his title afterwards contested by the wife on the ground that she had never executed the mortgage, or had done so by duress, coercion or fraud; or, that the debt to secure which it had been given was satisfied and paid. The purchaser need not look beyond the record, which shows conclusively a contract, by which the wife’s title is bound. To impeach the mortgage would be to contradict the record. Evidence to do this would be inadmissible; and the purchaser would be, therefore, perfectly safe and clear of litigation., That is as clear as any title can be, since unfounded claims may be set up, and actions of ejectment brought against persons owning estates with the most undoubted title.

This brings us to the question upon which this controversy must necessarily hinge. Could Mrs. Jermon, of those claiming under her, in an action of ejectment to be brought against the vendee, be permitted to show that the debt for which the judgment was confessed was not contracted by herself or her husband, at her instance, for the improvement of her separate estate? Would such evidence contradict the record ?

The learned judge of the District Court, in his able opinion, after stating the first count of the declaration, in Arnold v. Jermon & Wife, adds: “ The same cause of action is variously set forth in other counts.” But herein he’ appears to have fallen into an error. Had the fact been as thus stated, his conclusion might have been supported. The third count, which is the usual general one, including all the common counts in one count, does not set out the same but a different cause of action. A general verdict and judgment on the declaration would have been erroneous as against the wife. The third count ghows no good cause of action as against her. It lays a joint promise by husband and wife to pay for goods sold and delivered, work done and materials provided, &c., for the defendants at their request, which is held bad’ in Grasser v. Eckert, 1 Binn. 575. No plea of coverture was needed; for the suit was against her as a married woman, naming her throughout as the wife of J. Wagner Jermon. In a collateral proceeding, as it seems, it would be competent for her to show that the debt recovered was not upon, the first and second, but under the third count — that it was not a debt contracted by herself or at her instance for the improvement and benefit of her real estate. It certainly would not contradict the record, but be entirely consistent with it. Whenever .a judgment in a former action is relied on as conclusive, it may be shown by evidence aliunde not inconsistent with the record, that the particular point was not adjudicated: Coleman’s Appeal, 12 P. F. Smith 252.

An erroneous judgment is not necessarily a void judgment. Collaterally there may be a valid judgment upon a bad declaration — a declaration showing no legal cause of action whatever. But I apprehend that cannot be as against a married woman. Every judgment against her which does not show on its face her liability, is a void judgment. This is the principle of Caldwell v. Walters, 6 Harris 79. The declaration in that case was upon a bond, which was void; the judgment confessed upon it under the warrant of attorney was therefore void. So would have been a ’judgment upon a verdict.- We have here a general judgment. On some counts it would be good, on others bad. There is therefore no technical difficulty in the way of the wife’s giving evidence to show that the judgment as to her is not simply an erroneous but a void judgment on a contract absolutely void. It may even be admitted that in the collateral suit the presumption will be that-the judgment was. for a cause for which a recovery could be had against a married woman. It does not follow that such a presumption is conclusive. The onus may be on the wife. To hold that she could not attack the judgment collaterally, would lead to-the very startling conclusion that in any judgment against a husband and wife her real estate could be levied on, and her title divested by a sheriff’s sale. The argument that has been so earnestly pressed, founded on the 9th section of the Act of 1705, 1 Smith 61, would certainly go that length, if it has any applicability. It is well met and answered by Mr. Justice Chambers, in Caldwell v. Waters, 6 Harris 84.

It may be urged, and with some plausibility, that although this may be true when the. judgment is general upon verdict or by default, yet it is otherwise upon confession. Such a judgment would not be reversed on error, because some of the counts in the declaration are bad, much less be impeached collaterally. This may be conceded as' to a defendant sui juris. Such a confession would be good without any declaration — nay, without process, service or appearance. It involves a release of all errors in the process and pleadings. It would be a valid security, though without consideration: Sherk v. Endress, 3 W. & S. 257. But is a married woman competent to this ? Her' power to bind herself, and consequently her separate estate, being limited, her power to confess judgment must be under the same limitation. If she cannot contract.simplieiter — if her contract is absolutely void — her confession in court or elsewhere cannot give it validity. When the record shows a proceeding against her on a contract for the' improvement and repair of her separate estate, it may be that she would be concluded, because she could not contradict the record, but only because of that rule of evidence.

It is not necessary, however, that we should advance a positive opinion upon this question. It is enough that there are serious doubts about it. Mrs. Jermon is not a party to this suit. She would not be concluded by our judgment in it if adverse to her title. She will have a right hereafter to be heard upon it if she can show that, in point of fact, the judgment was not binding upon her. As was said by Mr. Justice Rogers in Bumberger v. Clippinger, 5 W. & S. 315, where the question was upon the constitutionality of an Act of Assembly authorizing a tenant for life with remainder to her children to sell in fee simple, “Who can assure the title to the purchaser? We cannot warrant the estate to him, for no decision that can be now made will conclude the vested rights of the children. When the time arrives which vests their rights in possession, the then Supreme Court will be at liberty to disregard our opinion as authoritative and binding upon them.”

Judgment reversed, and now judgment for the defendant below on the case stated.


source: Caselaw Access Project

author: by Williams, J.

license: Public Domain

text:
    Bissell versus Steel.
    1. Scott shipped oil to Saxton to be sold on commission ; at the shipment, Bissell made advances to Scott, who gave him drafts on Saxton against the oil and delivered to him the bills of lading without endorsement; the drafts were not paid. The oil was levied on in Saxton’s hands on an execution of Steel against Scott. Held, that no property in the oil had passed to Bissell.
    2. 'The transaction between Bissell and Scott was a loan or advance on the security of the oil to be repaid from the proceeds.
    3. The law will not imply a sale when none is intended by the parties, nor when the contract is for a lien.
    February 7th and 8th 1871.
    BeforeTHOMPSON, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court'of Philadelphia: No. 100, to January Term 1871.
    This was a feigned issue under a sheriff’s interpleader, in which George H. Bissell and others, trading as George II. Bissell & Co., were claimants and plaintiffs, and A. H. Steel defendant; the issue was made up September 7th 1868. The goods in controversy were 516 barrels of petroleum, levied on as the property of H. W. Scott & Co. under an execution -at the suit of A. H. Steel, the defendant in the interpleader.
    On the 9th, ,10th, 11th, and 13th days of July 1868, H. W. Scott & Co. shipped by the Empire Transportation Company four lots of petroleum. The bills of lading were all in the same form; the first was as follows:—
    ' “ Received, Rouseville, July ,9th 1868, of H. W. Scott & Co., 50 barrels, said to contain C. oil, and marked to be transported to L. D. Saxton, consignee, at Philadelphia, at fifty-three cents (freight for this and connecting "companies or agents), per one hundred pounds, subject to the following conditions and agreements.” * * *
    The bills for the several shipments were headed, “ L. D. Sax-ton, bought of H. W. Scott & Co.”
    At the time of each shipment, advances were made by the plaintiffs; the bills of lading without endorsement and drafts on the consignee for the amount advanced were delivered to them “as security to the amount” of $>2891.11; “the money was advanced on the faith of the drafts and bills of lading.” All the drafts were protested for non-acceptance and non-payment.
    The agent of the plaintiffs testified:—
    “ I had made former advances to Scott & Co. on the same terms. I had an understanding with them on the subject. Nothing particular was said when these advances were made.”
    L. D. Saxton testified: “I had no interest in the oil, and received it only to sell on commission for the consignors, to best advantage. I refused to accept the drafts because the price of oil declined.”
    The plaintiff having closed, the court directed a nonsuit, and afterwards discharged a rule to take it off.
    This was assigned for error by the plaintiffs on the removal of the case to the Supreme Court.

      G. D. Budd (with whom was J. Clayton), for the plaintiffs in error.
    A factor who accepts a bill drawn against .a particular consignment of goods placed in the hands of a third person for delivery to him, thereby acquires a property in the goods which will enable him to maintain replevin: Nesmith v. Dyeing Co., 1 Curtis 131.
    Where personal property from its character or situation at the time of sale is incapable of actual delivery, a delivery of the bill of sale, or other evidence of title, is sufficient to transfer the property as against the creditors of the vendor : Gribson v. Stevens, 8 How. 384; The Sarah Ann, 2 Sumner 267; U. S. v. Del. Ins. Co., 4 Wash. C. C. Rep. 418; Schumacher v. Ely, 12 Harris 521; Allen v. Williams, 12 Pick. 297.
    A consignor by an assignment of goods at sea passes the title as against every one but a bond, fide endorsee of the bill of lading: Conard v. The Atlantic Ins. Co., 1 Peters 387; Conard v. The Pacific Ins. Co., 6 Id. 262; Howland v. Harris, 4 Mass. 497; 2 Kent’s Com. 549, note.
    Corporal seizure was unlawful in this case, because the property was vested in the plaintiffs, and in their possession: Srodes v. Caven, 3 Watts 258.
    When the oil reached Saxton, it had fallen so much that the interest of Scott & Co. was valueless, and a sale would have been of no use: Commonwealth v. Contner, 9 Harris 266; Waterman v. Brown, 7 Casey 164. The assignment of the whole proceeds of a thing is certainly an assignment of the thing itself: Richardson v. Montgomery, 13 Wright 203; U. S. v. Vaughan, 3 Binn. 394; Stevens v. Stevens, 1 Ashmead 190.

      H. T. King, for defendant in error.
    The plaintiffs having made a claim to the absolute ownership, and thus stayed the execution, could not on trial set up a limited interest, or a lien, or equitable ownership, or a defeasible title: Meyers v. Prentzell, 9 Casey 482; Stewart v. Wilson, 6 Wright 450. Unless a bill of lading is endorsed, it passes no property: 1 Pars, on Con. 290; Stone v. Swift, 4 Pick. 389; Allen v. Williams, 12 Id. 297; Buffington v. Curtis, 15 Mass. 528; Act of 24th September 1866, § 1, Pamph. L. (1867) 1363, Purd. 1449, pl. 1.
    A pledgee or holder of collateral security cannot appropriate it in satisfaction of the debt intended to be secured, at his own option, unless in pursuance of a contract, nor sell it without first giving notice to the pledgor of his intention to do so, in order that he may have an opportunity to redeem it if he desires: Diller v. Brubaker, 2 P. F. Smith 498; Sitgreave v. Bank, 13 Wright 359; Davis v. Funk, 3 Id. 243.
    May 8th 1871,
   The opinion of the court was delivered,

by Williams, J.

If the plaintiffs were not the .absolute owners of the oil levied on by the sheriff, then, under the ruling of this court in Meyers v. Prentzell, 9 Casey 482, and Stewart & Co. v. Wilson et al., 6 Wright 450, the judgment of nonsuit was rightly entered, and the court in banc properly refused to set it aside. Under the issue as formed the burden was on the plaintiffs of showing that at the time the oil was levied on it was- their property. It was shipped by Scott & Co., the owners, from Bouseville, Venango county, by the Empire Transportation Company, to L. D. Saxton, their consignee in Philadelphia, to be sold for them on commission to the best advantage, The shipments were made on the 9th, 11th and 13th of July 1868. The plaintiffs made advances to Scott & Co. on each shipment, and took from them as security the bills of lading given by the'transportation company and drafts on the consignee to the amount of the advance. The bills of lading were not endorsed by the shippers, and none of the drafts were paid. . The first was protested for non-payment on the 21st and the others on the 23d and 24th of July 1868. The oil was levied on by the sheriff, on the 28th of July. 1868, at ' the suit of the defendants as the property of the shippers. These are the material facts- out of which the controversy in this case arises. Were the plaintiffs then the owners of the oil, or was it the property of Scott & Co. at the time it was seized by the sheriff ? It is admitted that Scott & Co. were the owners at the time it was shipped, and that they sent it to their consignee to be sold on commission for their account. Did the plaintiffs, then, in making the advances, intend to purchase, and did Scott & Co. intend to sell them the oil ? If not, the plaintiffs did not become the owners, though they may have acquired a lien for the amount of their advances. If the parties intended a sale, why were the bills of lading handed over as security, and why were drafts drawn on the consignee for the amount of the advances ? Why were not the bills of lading assigned or endorsed to the plaintiffs, and why was not the consignee instructed to hold the oil subject to their order and to account to them for the proceeds of sale ? There can be but one answer to the question, and that is, that the transaction was not intended as a sale, hut as a loan or advance on the security of the oil, to be repaid out of the proceeds. If, then, the oil did not become the property of the plaintiffs when the advances were made, did it become theirs on the failure of the consignee to accept and pay the drafts ? Doubtless it did, if this was the intention and contract of the parties. But it was not the contract, and there is nothing in the evidence from which such an intention can be inferred. Did the title then vest in the plaintiffs by operation of law on the failure to pay the drafts? If it did, it follows that the relation of the parties to each .other was no longer that of debtor and creditor, but of vendor and vendee. And, 'if s.o, it operated not only as a sale of the oil, hiit as a satisfaction or extinguishment of the indebtedness for the advances. But the law will not presume a contract of sale when none is intended by the parties. Nor will it imply a sale when the contract is merely for a lien. The utmost right that the plaintiffs acquired to the oil under their contract with Scott & Co. was a lien on it for the amount of their advances. When, therefore, they claimed its ownership, they asserted a title to it which neither their contract nor the law gave them, and it follows that they were rightfully nonsuited.

Judgment affirmed.


text:
    Clark et al. versus Scott.
    1. Ash. devised his residuary estate real and personal to several persons, and directed in case of the death of either of them during his life that such one’s devise or bequest “shall not thereby lapse but shall go to and be taken by the heirs, executors or administrators of said legatees or devisees so dying in the same manner as if the same had been specifically devised.” Two of the devisees died without issue having made wills. Held, that their shares passed to their heirs and next of kin and not to the devisees and legatees under their wills.
    2. “ Heirs” in the substituted gift was used in its technical sense and is a word of purchase.
    3. “ Heirs” is to be taken in its technical sense, unless there be something in the will to show that it was used in a broader sense.
    4. - “ Heirs” in Pennsylvania, when used as a word of purchase, means statutory heirs, those who take under the ihtestate acts.
    5. One of the predeceased devisees left a widow. The question whether she took any interest in his lapsed devise is of so much doubt that the other devisees could not convey a marketable title without her release.
    February 8th 1871.
    Before Thompson, C. J., Ag-new, Sharswood and Williams, JJ. Read, J., at Nisi Prius. '
    Certificate from Nisi Prius: No. 434, to January Term 1871.
    This was an amicable action of covenant, commenced October 4th 1870, in which Jane Clark, Joseph Ash, Matthew Ash, James Ash, Joshua W. Ash, Robert P. Ash, Margaret G. Ash, George W. Ash,' Samuel S. Ash, Matthew F. Ash, Hannah Ann Ash, Earl S. Ash, and Humphrey M. Ash, the said Samuel S., Hannah Ann, Matthew F., Earl S., and Humphrey M., being the children of- Caleb Ash, deceased, were plaintiffs, and Thomas A. Scott defendant.
    The action was founded on a contract by which the defendant agreed to buy from the plaintiffs a messuage and tract of land in Darby township, Delaware county, for $25,000, to be paid in five equal instalments, one on the execution and delivery of the deed, with interest from July 1st 1869, and the remaining four at different periods, the last on the 1st day of July 1872, tó be secured with interest by'bond and mortgage on the premises.
    The land contracted to be sold had belonged to Thomas P. Ash, who died seised about July 1866, having made his will, dated August 16th 1862 and proved July 23d 1866, by which he gave, amongst other things, as follows:—
    “ I give and bequeath unto Anna B. Pearson the sum of $1000,” &e. He then made eleven other pecuniary legacies in precisely the same terms.
    He made no specific devise of any real estate. The residuary clause of the will was as follows :—
    “All the rest, residue and remainder of my estate, real and personal and mixed, whatsoever, I order and direct shall be divided into eleven equal parts or shares, one whereof I give, devise and bequeath unto Jane Clark, her heirs, executors, administrators and assigns for ever. One other of the said shares I give, devise and bequeath unto John Ash, his heirs, executors, administrators and assigns for ever. * * * ■ One ether of the said shares I give, devise and bequeath unto Mary Ash, her heirs, executors, administrators and assigns for ever.” * * *
    He gave one share to each of the other seven of the persons named in the following clause in precisely the same terms, and further said:—
    “ The said Jane Clark, John, Joseph, Matthew, James, Joshua, Robert P., Mary, Margaret and George, being the children of the late Matthew Ash and Mary Ash. And the other remaining one-eleventh part or share of my said residuary estate I give, devise and bequeath unto the five children of Caleb Ash, deceased (who was another child of Matthew Ash and Mary Ash) to wit, Samuel, Matthew, Hannah Ann, Earl, and Humphrey Ash, to hold to them, their several heirs, executors, administrators and assigns for ever. And in case of the death of any or either of the above-named legatees or devisees under this my will, during my lifetime, I hereby expressly direct that the devise or bequest to him or her so dying shall not thereby lapse, but shall go to and be taken by the heirs, executors or administrators of said legatees or devisees so dying, in the same manner as if the same had been specifically devis.ed.”
    Mary Ash, one of the residuary devisees of Thomas P. Ash, died in his lifetime, having made a will, dated December 11th 1861, which contained amongst other things as follows :—
    “ Item. I give, devise and bequeath to my sisters, Hannah and Margaret G. Ash, the entire annual income and interest of all the estate of every kind which I may have a right to dispose of at the time of my decease, for and during their natural lives, and to the survivor of them. And immediately after the decease of such survivor I give, devise and bequeath all my estate of every kind which I may die seised and possessed of, to my sister, Jane Clark, and to all my brothers, and to the legal representatives of such of them as shall then be deceased, in equal shares, and to their heirs and assigns for ever, in such manner, nevertheless, that the legal representatives of any deceased brother or sister shall collectively take such share only as the parent would have taken had he or she been- living. * * *

      “ Item. I authorize and empower my executors to sell and convey, either at public or private sale, any portion of my real estate, whether held by me severally or in. common with other parties, whenever the convenient settlement of my estate may in their judgment render it expedient, or to make partition on behalf of my estate of any real estate held by me in common with other parties, and to execute all necessary deeds and conveyances for that purpose, and also to represent my estate by becoming party to any legal proceedings having for their object any partition or settlement of any estate so held by me. The proceeds of all sales made under authority herein given shall be invested in' some safe securities, and the incomes arising therefrom applied as herein-before directed.”
    John Ash also died in the lifetime of Thomas P. Ash, having made a will, dated April 20th 1864, which contained, amongst other things, as follows :—
    “ Second. I give and bequeath to my widow, Elizabeth L. Ash, during the term of her life, the whole of the net income and interest of my entire estate, to be paid to her by my executors hereinafter named, from time to time, as the same shall be collected.
    “ Third. I give and bequeath to the children of my brothers, namely: Alice and Matthew F., children of my brother Matthew Ash; Samuel S., Hannah Ann, Earl S., and Humphrey M., children of my brother Caleb Ash, deceased; Mary Hannah, daughter of my brother Joshua W. Ash; Marian, Margaretta T., Louise, and James Franklin, children-of my brother James Ash; Mary, Hannah S., and John S., children of my brother Robert P. Ash; and George, son of my brother George W: Ash, and to the survivors and survivor of them, the whole of my estate of every kind, and the rents, remainders and issues thereof to be equally divided to and among them, share and share alike, sub-

      ject, nevertheless, to the foregoing and the following items, provided, that the lawful child or children of any of the above named, who may die, leaving such issue, shall receive the share which the parent would be entitled to if living.

      “ Fourth. It is my will and pleasure that if any of my above named brothers be living at the time of my decease and the decease of my widow, the income of such portion, of my estate as shall fall to the share of his child or children, under the provisions of the foregoing item, shall be enjoyed by said parent during life, and at and immediately after his decease, the said principal sum. shall be paid over to his children or child, as above directed. .
    “ Fifth. Should any of the said survivors die after my decease, leaving no. lawful issue, and' before receiving payment of their legacy, the amount of every such legacy shall revert to my estate and be divided equally to and among the remaining survivors. Subject, nevertheless, to the provisions of the .foregoing third and fourth items.
    “ Sixth. I give to my executors full powers and authority, at their discretion, to sell and convey any a.nd every part of my real estate whenever they may deem it best for the convenient settlement of my estate, conformably to'the provisions of this instrument.”
    The precise time of the death of Mary and John Ash did not appear in the paper-books.
    Mary died unmarried and without issue, leaving to survive her as next of kin her brothers and sisters and nephews and. nieces named in the will of Thomas P. Ash.
    John died after her,‘leaving to survive him a widow, Elizabeth L. Ash, and as next of kin, his brothers and sisters (except Mary) nephews and nieces named in the will of Thomas P. Ash.
    The plaintiffs are all the devisees (except Mary and John Ash) named in the residuary clause of the will of Thomas P. Ash: but include no person named in the will either of Mary or John.
    The foregoing facts were agreed to in a case stated, which contained also:—
    “ The defendant refused to accept a deéd for the premises, executed in due form by the plaintiffs, and the wives of such as have wives, or to execute the aforesaid bonds and mortgages for that part of the purchase-money which was to remain secured on the premises by the terms of the contract, or to pay the instalments of purchase-money which have become due.

      “ If the court should be of the opinion that the plaintiffs by their aforesaid deed can convey a good and marketable title in fee simple to the whole of the premises, then to enter judgment for the plaintiffs in this action for the instalments of purchase-money then due under the aforesaid contract, with interest, otherwise to enter judgment for the defendant.”

      “ And further if the court should be of opinion that Elizabeth L. Ash, widow of the above-mentioned John Ash, is entitled to any estate or interest in the premises above referred to, under-the will of Thomas P. Ash, but shall be otherwise of opinion in favor of the plaintiffs, then plaintiffs shall procure from her a good and sufficient release of any such estate or interest, before- judgment shall be finally entered in their favor;”
    “ The question presented by the case stated for the decision of the court, is whethet the following clause of the will of Thomas P. Ash, viz.: — ‘ And in case of the death of any or either of the above-named legatees or devisees, under this my will, during my lifetime, I hereby expressly direct that the devise or bequest to him or her, so dying, shall not thereby lapse, but shall go to and be taken by the heirs, executors or administrators of said legatees or devisees so dying,, in the same manner as if the same had been specifically devised,’ — passed the tract of land in question to .the heirs at law of John Ash and Mary Ash, the predeceasing devisees of testator, or to, or to the use of the devisee of said John Ash and Mary Ash; and the further question, whether, if to the heirs, Elizabeth, widow of John Ash, is one of those heirs.”
    The court at Nisi Prius entered judgment for the defendant.
    The'plaintiffs-took a writ of error and assigned for error, the entering of judgment for the defendant.

      A. L. Smith, for plaintiffs in error.
    “ Heir” has always its full technical signification unless controlled'by language showing'a decided intention to vary such meaning : Campbell v. Jamison, 8 Parr 498. The whole force and direction of this devise and bequest must be derived from his will alone. We cannot look to the predeceasing devisees for anything. Our Statute of Wills gave them no control over a mere possibility like this: 1 Greenl. Cruise Dig. tit. Devise, ch. viii., § 23, n. 2; Schiefflein v. Kessler, 5 Rawle 115; Baskin’s Appeal, 3 Barr 304; Baines v. Ottey, 1 Myl. & K. 465; Bridge v. Abbot, 3 Bro. C. C. 224; Jennings v. Gallimore, 3 Ves. 146; Long v. Blackall, Id. 486; Holloway v. Holloway, 5 Id. 399 ; Vaux v. Henderson, in note to Houseman v. Abbey, 1 Jac. & Walk. 388; Gittings v. McDermott, 2 Myl. & K. 69; Jacobs v. Jacobs, 16 Beav. 557. Where the word is simply “heirs” or “heir at law,” the bequest of personalty may pass to the technical heir in preference even to the next .of kin: Gwynne v. Muddock, 14 Ves. 488; In re Newton’s Trust, 4 Eq. Cas. 171; De Beauvoir v. De Beauvoir, 3 House of Lords, Cas. N. S. 524.; In re Porter’s Trust, 4 K. & John. 188; Daniel v. Dudley, 1 Phill. 1; Mackenzie v. Mackenzie, 3 MacNaugh. & Gord. 559; Chapman v. Chapman, 33 Beav. 556; Long v. Watkinson, 17 Beav. 471; Palin v. Hills, 1 Myl. & K. 470; Johnson v. Johnson, 3 Hare 157; Ware v. Fisher, 2 Yeates 578; Miller’s Appeal, 11 Cas. 323; Gibbons v. Fairlamb, 2 Id. 217; Eby’s Appeal, 14 Wright 311; Id. 201; Physick’s Estate, 2 Phila. R. 178.
    February 6th 1871,

      H. Wharton, for defendant in error.
    The mere expression of the testator’s intention that the devises and bequests made by him should not lapse by the death of a legatee or devisee in his lifetime, would have been inoperative: 1 Jarm. on Wills 294; Sibley v. Cook, 3 Atk. 572; Elliot v. Davenport, 1 P. Wms., 83; Toplis v. Baker, 2 Cox Ch. C. 121; 2 Wms. on Ex’rs. 1088; Sloan v. Hanse, 2 Rawle 28. A substitutionary gift made to the executor of a legatee, without more, may be construed,
    (1.1 Either the executor would take beneficially;
    (2.) Or as trustee for the next of kin;
    (3.) Or, finally, as trustee for the uses and purposes of the will.
    1. The first is untenable, except in special cases: Evans v. Charles, 1 Anstruther 128; Price v. Strange, 6 Madd. 161; Wellmore v. Bowring, 1 Sim. & Stuart 24; Marshall v. Collett, 1 Younge & Coll. 239; Long v. Watkinson, 17 Beav. 471; 2 Williams on Executors 1029.
    2. The second is supported only by Palin v. Hills, 1 Myl. & K. 470; Bridge v. Abbot, 3 Brown’s C. C. 224. Palin v. Hills is now overruled: Collier v. Squire, 3 Sim. 328 ; Daniel v. Dudley, 1 Phill. 1; Attorney-General v. Malkin, 2 Id. 64; Allen v. Thorp, 7 Beav. 72; Morris v. Howe, 4 Hare 599; Long v. Wilkinson, 17 Beav. 473; Holloway v. Clarkson, 2 Hare 521; Hewitson v. Todhunter, 22 L. J. Ch. 76; 15 Eng. L. and E. 396; 2 Williams on Executors 1029; Gibbons v. Fairlamb, 2 Casey 218.
    3. The remaining alternative, that the legacy goes to the executor, not indeed as part of his testator’s estate,'but to be administered as if it were, is therefore the one to be adopted.
   The opinion of the court was delivered,

by Sharswood, J.

The testator, Thomas P. Ash, after devising his residuary estate, real and personal, to several persons, declared that in case of the death of either of them before him, the devise or bequest should not lapse, “ but shall go to and be taken -by the heirs, executors or administrators of said legatees or devisees so dying, in the same manner as if the same had been specifically devised.”. He was evidently aware of the distinction between real and personal estate. He has used throughout his will, the words, legally appropriate to each. All his-legacies of mere personalty are by th'e words “give and bequeath,” but when he comes to the residuary clause in which he blends both his real and personal estate, he is careful to use the words, “ give, devise and bequeath,” and adds a limitation to' “heirs, executors, administrators and assigns.” We may infer then that in the substituted gift for the lapsed devise, the word “heirs” was used in none other than its legal technical meaning. Apart, however, from this very important assistance at arriving at the true intention of the author of the disposition, it is a canon of construction settled in many cases, that the word “heirs” shall receive its appropriate technical sense, unless there is some language or expression which shows that it was used in the broader and more popular sense: Porter’s Appeal, 9 Wright 201; Eby’s Appeal, 14 Ibid. 311. In law the heirs of a man are those upon whom his lands of inheritance descend upon his death intestate. Popularly the word often includes devisees — the persons who are made heirs — hceredes facti. In the will before us it is plainly a word of purchase. It could not be otherwise, for by the very supposition of the death of the devisee before that of the testator, there was no estate in him in his lifetime to which the word could attach as a word of limitation. In this state when the word “heirs” is used as a word of purchase, it means ■“ statutory heirs” — those persons designated by the Intestate Act to take the estate not disposed of by last will and testament: Walker v. Walker, 4 Casey 40; Dodson v. Ball, 10 P. F. Smith 500; Aspden’s Estate, 2 Wall. Jr. 368.

It has been strongly urged, however, that as the word “ executors” is used the testator intended those who should be named in the last wills and testaments of his devisees. As we have no question in regard to personal estate before us, it is unnecessary to consider how the executors would take, whether as trustees for the next of kin as of an undisposed-of surplus, or for the uses of ' the will generally. We cannot consider that from his using the word “ executors” the testator meant by “ heirs” to include devisees. Indeed, the argument would rather seem the contrary. As he employed knowingly the terms “executors or administrators”, as to personalty, the inference would rather seem to be, that if he had meant it, he would have said “heirs or devisees.” , Undoubtedly the words are to be construed distributively — reddendo singula singulis, and so as “ executors or administrators” are applicable to the personal estate, “ heirs” standing by itself is the only term to be applied to the realty.

There are other reasons why, without express words indicating his intention, the testator in his substituted gift in the case of a lapse, ought not to be considered to have had reference to devisees. It is certain that no wills made by his devisees in their lifetime could have had any operation by their own force upon property not owned by them at the time of their decease. The devise'e of the predeceased devisee must therefore take in his character of devisee of the original or first testator. Hence, express words are necessary to designate him as th.e object of his bounty. But still further, non constat that the predeceased devisee would not have specifically devised this property if he had owned it when he made his will, and not have suffered it to pass by his residuary devise. In giving the property of Thomas P. Ash to the residuary devisees of Mary Ash and John Ash, it is really but a mere guess that if Mary Ash and John Ash had been the owners of the property devised to them by Thomas P. Ash at the time of their death, they would have allowed -it to pass by their general residuary devise. In fact the court is by construction making a will for them of this property. It is much better that the law should make the will; in other words, that the estate should go to those designated by the intestate laws as their heirs or next of kin.

In regard to the further question, whether the widow of John Ash is one of his “ statutory heirs,” entitled to her share under the intestate laws, we consider it' to be a question of so much doubt under the provisions of the Act of April 8th 1833, Pamph. L. 316, and the cases of Thomas v. Simpson, 3 Barr 60; Shaw v. Galbraith, 7 Id. 111; Seider v. Seider, 5 Whart. 208; Schall’s Appeal, 4 Wright 170; Helfrich v. Weaver, 11 P. F. Smith 384; Gibbons v. Fairlamb, 2 Casey 217, that a purchaser has a right to object to a title from the plaintiffs as not marketable, unless they shall procure from her a good and sufficient release of such estate or interest as she may be entitled to.

Judgment reversed, and now judgment for the plaintiffs, upon the case stated, upon their,procuring and delivering to defendant a good and sufficient release by Elizabeth L. Ash, the widow of John Ash, of all such estate or interest as she may have in the premises.


author: by Agnew, J. Sharswood, J.

text:
    Finley's Appeal.
    1. A mechanics’ lien filed against the husband alone as owner and a contractor, but not referring to the wife or making her a party to the record is not a lien against her estate.
    2. There is no relation of trustee and cestui que trust or any other privity of estate which can make a sale in the name of one carry the estate of the other.
    3. The divestiture of a wife’s title under a mechanics! lien must depend on the record, not on proof after the sale that she had consented to the contract under which the claim was filed.
    4. When the declaration against a married woman contains no averment respecting the origin of the debt, the plea of coverture is a good defence to the wife.
    5. In such case it is not enough that a cause of action against a married woman is proved,_ it must be declared on.
    6. A claim against á wife for the improvement of her real estate is only constructively within the proviso of the 6th section of the Act of April 11th 1848.
    7. A mechanics’ lien was filed against Jermon as “owner or reputed owner” and the contractor. In the scire facias an attorney appeared and confessed judgment “ with the same effect as if the lien had been originally filed against Jermon and Sarah A. his wife,” and as if the scire facias had been issued against both and “ duly returned served.” Held, that the judgment did not create a lien, the land being the wife’s.

      8. A confession of judgment by a married woman is not binding on her.
    9. A married woman is protected from encumbrance on her real estate, unless her written consent he first obtained and duly acknowledged before one of the judges of the Court of Common Pleas.
    10. Confessions of judgment on her mortgage in which she is primarily bound are in furtherance of the remedy and are binding.
    11. It seems that such confession in a mechanics’ lien filed against the wife would be good.
    February 9th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the District Court of Philadelphia: No. 127, to January Term 1871. .
    This case arose upon the distribution of the proceeds of the sheriff’s sale under an execution against J. W. Jermon and Sarah A. his wife. ,
    Thomas Greenbank, Esq., was appointed auditor to make distribution. The auditor in his report said : — ■ * *. *

    “ The suit of W. A. Arnold, which produced the fund, was instituted against Sarah H. Jermon, judgment was obtained and final process issued against her, her husband, J. Wagner Jermon, being joined throughout the process and pleadings for the sake of conformity. The levy was made upon property recorded in her name, and the purchaser acquired her title. The auditor is of the opinion that the fund for distribution is the proceeds of the sale of the wife’s interest, and should go in payment of her lien-creditors, according to priority, and not of those of J. W. Jermon, the husband.” * * * .
    The claimants on ■ the fund were,. Samuel T. Chadwick, Samuel M. Foster and John Kelly, claiming upon mechanics’ liens for the erection of a building on the real estate sold, W. A. Arnold as above mentioned, the receiver of taxes, and Clement A. Finley, assignee of James R. Moorhead, to whom Jermon and wife had given a mortgage on the premises. The mortgage was dated April 4th and recorded April 6th 1868, and amounted to more than the fund for distribution. • Judgments on the other liens preceded the recording of the mortgage. •
    The claim of Chadwick was filed May 17th 1866, against “ J. W. Jermon, owner or reputed owner, and Riego Taylor, contractor.” Foster’s claim was entered in the same way; judgment was recovered on this claim, November 8d 1866. Kelly’s claim was filed in the same way. On this claim, judgment was entered on the following agreement:—
    “ And now, May 14th 1867, it is agreed that judgment be entered in the above case with the s?ime effect as if the lien claim had been originally filed against J. W-. Jermon and Sarah H. his wife, and as if sci. fa. had been issued thereon against the said J. W. .Jermon and Sarah H. his wife, and duly returned served, and that

      the amount of the judgment shall be for the sum of $832.56, with stay of execution for six months.
    “ Samuel F. Flood, for plaintiffs. Vail, for defendants.” The auditor reported that objections were made to these liens, because “the claims were filed against J. W. Jermon, owner, and not liens against the wife’s interest. The evidence of Mr. Jermon was, that he and his family were in possession of .the premises at the time of the construction of the improvements, and that Sarah H. Jermon his wife contracted with Riego Taylor, to erect the building, Mr. Jermon ratifying the contract.
    ‘ ‘It is true that the husband cannot render the wife’s estate subject to a mechanic’s lien by erecting improvements on her separate property without her consent: Barto’s Appeal, 5 P. F. Smith 386: but her interest is bound by a lien filed against him as owner or reputed owner, when the building was erected with her knowledge and consent. Lex v. Holmes, 4 Phil. R. 10, and the Act of 28th April 1840, Purd. 'Dig. 714, declares a mechanic’s lien .shall extend to the estate of the person in'possession at the time’ of the commencement of the building, and at whose instance the same is erected.” * * *
    “ The auditor is of opinion, for the reasons and upon the authorities given above, that the liens against J. W. Jermon, owner, are valid to bind the interest ■ of the wife under the facts of this case. Whether the judgment on the sci. fa. in the two cases is sufficient proof of the claim, however, without further proof is also a question for determination.
    “ It is a well settled rule that a judgment, although irregular on its face and even if legally recovered, cannot be impeached. . collaterally by third persons although lien-creditors of the defendant, except for fraud or collusion. * * * These two claims are therefore placed on the line of liens as of the date of the judgment on the sci. fa., and not of the filing of the claims. This,.however, does npt effect any change in the course of distribution in this cas.e. The auditor has not deemed it necessary to discuss the effect of the judgment obtained in' Kelly’s Case, against Mrs.' Jermon, the wife, by consent; because it was • not essential that she should be a party to the sci. fa. on a lien filed against her husband as reputed owner. Such lien binds her interest in the land: Lex v. Holmes, 4 Phila. R. 10.” * * *
    •The auditor reported distribution of the fund in court, as follows:— . '
    To Samuel T. Chadwick,.....$107.99
    To Edward Lyon, assignee of Samuel M. Foster, 138.25 To John Kelly, . ' . . . . . '. 423.75 '
    To W. A. Arnold, . . . . ' . . 395.08
    To the receiver of taxes, . . . . . 172.21
    To C. A. Finley, assignee of J. R. Moorhead, . 554.21

      May 8th 1871,
    Finley filed exceptions.to the report of the auditor in allowing the claims of Chadwick, Foster and Kelly.
    The court confirmed the auditor’s report.
    Finley appealed to the Supreme Court, and assigned for error the allowance of the claims of Chadwick, Foster and Kelly.

      J. S. Grendell and JE. S. Miller,,fox appellants,
    cited Hampton v. Broom, 1 Miles 241; Hays v. Tryon, 2 Id. 208; Gault v. Demming, 8 Phila. R. 387; Noll v. Swineford, 6 Barr 187.
    A.’ V. Parsons, for 'appellees,
    cited Act of April 28th 1840, .§ 24, Pamph. L. 474, Purd. 581, pl. 40; Leiby v. Wilson, 4 Wright 63; Hazelett v. Ford, 10 Watts 101; Stiles v. Bradford, 4 Rawle 401; Tarbox v. Hays, 6 Watts 398, 5 W. & S. 473; Thompson’s Appeal, 7 P. F. Smith 175; Lanman’s Appeal, 8 Barr 473; McCay’s Appeal, 1 Wright 125; Barto’s Appeal, 5 P. F. Smith 386.
   The opinion of the court was delivered,

by Agnew, J.

The auditor in the court below states that the fund for distribution- is the proceeds of - the sale of the wife’s interest, to wit, that of Mrs. Sarah H. Jermon, and he therefore concludes that it should go in payment of her' lien-creditors' according to priority, and not to those of- J. W. Jermon the husband. This opinion is correct, and is the key to the distribution.But he afterwards' awarded the- fund, to three' creditors upon mechanics’ liens, filed against J. W. Jermon owner or reputed owner, and Riego Taylor' contractor. This he did on proof that Mr. Jermon and his family were in possession of the premises at the time of the construction of the buildings, and that they were contracted for by Mrs. Jermon with Riego Taylor, Mr. Jermon ratifying the contract. The question therefore raised is, whether’ a' claim filed against the husband alone as owner and a contractor, not referring to or making the wife a party to the record in any way, is a lien against her estate. The very statement of the question would seem to -be sufficient to furnish a negative reply; but as a different opinion has been expressed in the District Court in a former case, it is prpper to discuss, the question. In-order to-maintain the right of a claim, filed against the husband- alone, to be paid' out of the fund, we must hold that a sale under such a claim would pass the title of the wife which she-holds in her own ■ right. But this .is1 contrary to all our notions of the effect of a judicial sale.. There is no relation- of trustee and cestui que trust, or of any other privity of estate, which can possibly make a sale in the name of one- carry the estate of the .other. Not only is the estate of the wife her own separate and independent interest, but it is1 protected by express statute from the acts, encumbrance and executions of the husband. Upon a levari facias against the husband alone and the contractor the sheriff would advertise, levy and sell but the interest of the husband. Admitting that the wife had really made the contract for the building, and that this was susceptible of clear proof, the .sheriff could not incorporate this fact into his advertisement and his terms of sale, and declare that he was selling not the title of the defendant in the execution, but that of his wife. But suppose it not to be the fact, though alleged; i§ the wife to have no trial to protect her rights, or is the purchaser at the sheriff’s sale to be made to. run the risk of the proof ? ’ Such an uncertainty as this would be, is to the injury of all concerned. It injures the mechanic, for the bid at the sale will-be'regulated by the risk to be run, and the property would often not pay the claims. It injures the wife, for on the one hand her estate may be sacrificed; and on the other, she will be compelled to litigate with the purchaser with a cloud upon her title. There can be no justice done to any one interested unless she is made a party to the claim, and her right or her liability is determined by a judgment. Such an anomaly that the' divestiture of her title shall depend not on the record, but on proof after the sale that she had consented to the contract under which the claim was filed, could not be tolerated. What notice would the claim' against her husband be to subsequent lien-creditors or purchasers from her ? It would not stand against her title on the judgment index, or upon any record. It would unsettle the whole doctrine (if record liens and notice, and leave the question of lien or no lien to depend upon the proof of the contract in pais. This is precisely what was done in this case, the auditor finding no record lien against Mrs. Jermon, but resorting, to proof of an outside fact to convert the claim against the husband into a lien against the wife. It not only contravenes the doctrine of liens, the statute as to the judgment index, the intere'sts of the parties and the public, but it is in the face of the 1st section of the Act of 1st April 1863, Brightly 1306, ph 1, which declares that the true intent and meaning of the Act of Assembly to secure the rights of married' women, passed the 11th day of April, A. D. 1848, and the supplements thereto, are hereby declared to be, that no judg- • ment obtained against the husband of any married woman, before or during marriage, shall bind or be a lien upon her real estate, or upon any interest the husband may be. entitled to therein as tenant by the curtesy.” . • '

That the claim should be filed against the wife and appear in the record in order to change her estate, is' clear also upon authority. Thus, in Mahon v. Gormley, 12 Harris 83, it was held that a plaintiff who would avoid the effect of a plea of coverture must set forth in his replication the special circumstances which make the defendant liable notwithstanding her. coverture, or amend his declaration so as to Set forth those circumstances. So in Murray v. Keyes, 11 Casey 384, an action to recover a claim for necessaries, it was said that the instances in which a wife is liable are exceptional, and are specified in the proviso to the 6th section of the Act of 11th April 1848, and in the 8th section. A plaintiff who seeks to charge her estate should bring his case within some of these exceptions. Where the declaration contains no averment respecting the origin of the debt, the plea of coverture is a good defence to the wife. The judge there repeats the language used in Mahon?). Grormley. Further on he says, “ we cannot construe the statute in reference to these exceptions without saying that the pleadings as well as the evidence failed to make out a case for charging the wife.” But still stronger is the case of Parke & Wife v. Kleeber, 1 Wright 251. There the court say they saw no error that sustains any .one of the assignments, of error, and yet proceed to say, “But still we are unwilling to affirm the judgment, because the pleadings disclose no cause of action against the wife. It is not enough that a cause of action was proved; it should be declared also.” Again: “Without a cause of action declared of record against the wife, we cannot sustain a judgment intended to be levied on her estate.” To the same effect is Lippincott & Wife v. Hopkins, 7 P. F. Smith 328. The point of the matter is well hit by Thompson, C. J., in Carey v. Wintersteen, 10 P. F. Smith 398, when he said, ■“ The plaintiffs in error complain of this, and they have a right to do so, unless, indeed, it can be maintained that a judgment on the lien filed does not bind the estate against which it is filed, but some other estate, in some other ownership, on a contract by other parties.” '

A claim against a wife for the improvement or repair .of her separate estate is only constructively within the proviso to the 6th section of the Act of 11th Apri 1848 : Heugh v. Jones et ux., 8 Casey 432-434; Murray v. Keyes, 11 Id. 384. Her contract would be void at common law: Glyde v. Keister, 8 Casey 85; Heugh v. Jones, supra ; Bear’s Adm’r. v. Bear, 9 Id. 525. Hence, in the last case it.was held that the administrator of the husband could not recover from the wife money advanced by him under *■ contract with her for the improvement of her estate. For all these reasons we think that the decision in Lex v. Holmes by the District Court, upon which the auditor relied, was an error: Leg. Int., Jan. 20th 1860, p. 20.

It is scarcely necessary, after what has been said, to place the case on. the tSrms of the Act of 28th April 1840, Brightly, p. 714, pi. 40, confining the effect of a' mechanic’s lien to the estate of the person in possession at the time of commencing the building, at whose instance the same is executed, and declaring that no greater estate shall be sold by virtue of any execution authorized or directed in the Mechanics’ Lien Act.

The confession of judgment in John Kelly’s case did not create a lien. It was the act of an attorney appearing for a married woman who was no party to the record, against whom no claim had been filed, and confessing a judgment for a debt apparently that of the husband. It had no foundation in the record to stand upon, and falls within that numerous class- of cases deciding that the confession of a judgment by a married woman is not binding on her. If a married woman’s estate can be swept.away by such a confession, she is unprotected by the stringent provisions of the Act of 1848, which protects her from liability against encumbrances upon her estate, unless her written consent be first had, and obtained and duly acknowledged before one of the judges of the Court of Common Pleas. She would always be in the power of her husband, who should authorize any convenient attorney to appear for and confess judgment against her. The fact of her real liability would lie made to depend on the mere assertion, or rather the inference to be drawn from the confession by the attorney. It is wholly unlike those cases of mortgage where the wife is primarily bound by the instrument, and the confession is merely ' in furtherance of the .remedy: McCullough v. Wilson, 9 Harris 436; Evans v. Meylert, 7 Id. 402; Hartman v. Ogborn, 4 P. F. Smith 120. If in this case the claim had been filed against Mrs. Jermon, then it might have been contended with some show of reason that the judgment was binding, as. in Hartman v. Ogborn, supra. But here there is nothing but the bald confession of the attorney, which bi’ings the case within the principles of Dorrance v. Scott, 3 Whart. 309, Caldwell v. Walters, 6 Harris 79, and cases of a similar type.

The decree of the court below is reversed, and it is now ordered and decreed that the distribution to the mechanics’ claims of S. T. Chadwick, Samuel W. Foster ' and John Kelly be stricken out, and the money so distributed is ordered to be paid to the appellant as assignee of the mortgage of James R. Morehead et al., set forth in the auditor’s report; and the said Chadwick, Norton and Kelly are ordered .and decreed to pay the costs of this appeal.

Sharswood, J.

I concur on the ground that a married woman cannot, by her oral consent, authorize her husband to encumber her real estate.


text:
    Martin and Monroe versus Berens.
    1. B. leased premises to M. for six years, the rent payable quarterly, M. to make all improvements, &e., and “ to do the rebuilding in ease of any accident whatever * * * to keep the premises in repair at his own expense. without any claims for damages or restitution or as an off-set for rent.” In a suit for two quarters' rent, M. filed affidavits of defence that the premises had been burned and remained in ruins; that it was the agreement of the parties that if the premises were burned, the rent was to cease; that it was agreed át the execution of the lease,-that if the premises should be burned, M. was not to be liable for rent while they remained destroyed nor pay rent further to the plaintiff. Held, these facts were at variance with the written lease and could not be proved by parol.
    2. Parol evidence is admitted to show fraud, accident or mistake as to a written instrument; but the evidence should be of what occurred at the execution, and should be clear, precise and indubitable.
    3. When parties without fraud or mistake have put their engagements in writing; that is not only the best, but the sole evidence of their agreement.
    4. Numerous cases on the subject of varying written agreements cited in the opinion in this case.
    February 9th 1871.
    Before Thompson, C. J., Agnew, Shauswood and Williams, JJ. Read, J., at Nisi Brius.
    Error to the District Court of Philadelphia: No. 142, to January Term 1871.
    This was an action of covenant, brought September 12th 1870, by Bernard Berens against Thomas J. Martin and John Monroe.
    The plaintiff filed a copy of the instrument on which the suit was brought; it was a lease from the plaintiff to the defendants, dated February 1st 1867, for a lot of ground at the corner of Ontario and Cumberland streets, Philadelphia, with a stone building and shedding erected thereon; from the 1st of December 1866 until the 31st of August 1873, at.the rate of $1400 per annum, ■ for the purpose of manufacturing distilled and malt liquors. The rent was payable in equal quarterly payments, “ the first instalment becoming due on the 1st day of March of this year. They, the second party, further agree to pay every one of the instalments punctually to the first party; and in ease they shall fail to do so within five days after any of these instalments become due, then to consider this lease forfeited, and to give peaceable possession of the premises, with all the improvements, fixtures and additions, to the first party or his legal representatives, if he or they, in that event, should request them to do so, waiving all rights of claiming damages for any improvements, additions, fixtures, &e.
    “ The second party further agree to make all the improvements, additions, also all the repairs, or to do the rebuilding in case of any accident whatsoever, which now may be made voluntarily, or hereafter may be necessary or required to keep the premises in a proper state of repair at their own expense, without any claims for damages or restitution, or as offset for rent from the first party.
    “ The second party further agree to give peaceable possession of the premises, of all buildings, with-engine and boiler, also of the additions and internal improvements, leaving them all in a proper state of repair and working order at the end of this lease, or in case of a.forfeiture of this lease, at that time to the first party.” * * *

      The claim was for two quarters’ rent of $350 each, due respectively on the 1st of June and the 1st of September 1870, with interest.
    The defendants filed an affidavit of defence October 7th 1870, “ that the said premises for which rent is claimed were burned down and totally destroyed by fire March 30th 1870, and still remain so destroyed and in ruins. That it was the understanding and agreement of the parties, that if the said premises were destroyed by fire the rent was to cease and end, the defendants binding themselves only to restore the building as they received it.”
    They filed a supplemental affidavit of defence 'October 15th 1870, “ that before Hind at the time of making the said lease and agreement sued on, the plaintiff agreed with the defendants, as part of the said lease and agreement, that though the said premises should be rebuilt by the defendants at their expense i'f the same were burned down or destroyed during the term, yet the said defendants were not to be liable for any rent thereafter, while they so remained destroyed, and were not to pay rent further to the plaintiff; and deponent further says that the rent claimed so accrued after the destruction by fire, and said premises are still unbuilt.”
    Judgment for $710.81, for want of a sufficient affidavit of defence, was entered October 31st 1870.
    This was assigned for error by the defendants, who removed the record to the Supreme Court.

      P. Archer (with whom was L. Q. Cassidy), for plaintiffs in error.
    A parol contract may be set up to vary a written instrument : Chalfant v. Williams, 11 Casey 212; Bank v. Fordyce, 9 Barr 275; Barnhart v. Riddle, 5 Casey 96; Musselman v. Stoner, 7 Id. 270; Rearich v. Swineheart, 1 Jones 238; Parke v. Chadwick, 8 W. & S. 98; Christ v. Diffenbach, 1 S. & R. 464; Clark v. Partridge, 2 Barr 13.
    The parol promise in the present case, not to exact rent after destruction of the premises, was the inducement to the lessees to execute the lease in its present form, and this inducement, and the attempted fraud in the wrongful use of the lease, opens the door to parol evidence: Miller v. Henderson, 10 S. & R. 290; Hain v. Kalback, 14 Id. 159; Hurst’s Lessee v. Kirkbride, cited in Wallace v. Baker, 1 Binn. 616; Miller v. Fichthorn, 7 Casey 252; Renshaw v. Gans, 7 Barr 117; Anspach v. Bast, 2 P. F. Smith 356; Aldridge v. Eshleman, 10 Wright 420.

      J. Gerhart, for defendant in error,
    commented on the authorities cited by the plaintiffs; he also referred to Harbold v. Kuster, 8 Wright 394; Lloyd v. Farrell, 12 Id. 76 ; Collins v. Baumgardner, 2 P. F. Smith 461; Gould v. Lee, 5 Id. 108 ; Lewis v. Brewster, 7 Id. 414.
    February 27th 1871,
   The opinion of the court was delivered,

by Williams, J.

The parol agreement set up as a defence to the rent claimed by the plaintiff below, directly contravenes the terms of the written lease upon which the action was brought. By the agreement, as signed and sealed by the parties, the defendants agreed to pay the stipulated rent of the demised premises in equal quarterly instalments during the continuance of the lease; and they further agreed “ to do the rebuilding in case of any accident whatsoever * * * at their own expense, without any claim for damages or restitution or as offset for rent.” ®ut in their original affidavit of defence, they aver that “ it was the understanding and agreement of the parties that if the said premises were destroyed by fire the rent, was to cease and end, the defendants binding themselves only to restore the building as they received it;” and, in their supplemental affidavit, they say, “ that before and at the time of the making the said lease and agreement sued on, the plaintiff agreed with the defendants, as part of the said lease and agreement, that though the said premises should be rebuilt by the defendants at their expense, if the same were burnt down or destroyed during the term, yet the said defendants were not to be liable for any rent thereafter, while they so remained destroyed, and were not to pay any further rent to the plaintiff.” It needs no argument to show that the alleged parol agreement is utterly at variance with the written lease. It not only changes its legal effect, but it contradicts its very terms. The two agreements, therefore, cannot possibly stand together; one or the other must fall. If the parol agreement is to prevail, the defendants are not-liable for the rent which is alleged to have accrued after the premises were destroyed by fire. But can they avail themselves of the parol agreement as a defence to the rent which, by the express terms of the written lease, they stipulated to pay ? It is clear they cannot, if they would not be allowed to show on the trial that the parol agreement was in fact made as alleged. The principles which govern the admission of parol evidence affecting written instruments are well established. It may be received to explain and define the subject-matter of a written agreement: Barnhart v. Riddle, 5 Casey 92; Aldridge v. Eshleman, 10 Wright 420; Gould v. Lee, 5 P. F. Smith 99; to prove a consideration not mentioned in a deed, provided it be not inconsistent with the consideration expressed in it:. Lewis v. Brewster, 7 P. F. Smith 410 ; to establish a trust: Cozens v. Stevenson, 5 S. & R. 421; to rebut a presumption or equity: Bank v. Fordyce, 9 Barr 275; Musselman v. Stoner, 7 Casey 265; to alter the legal operation of an instrument where it contradicts nothing expressed in the writing: Chalfant v. Williams, 11 Casey 212; to explain a latent ambiguity: McDermot v. The U. S. Ins. Co., 3 S. & R. 604; Iddings v. Iddings, 7 Id. 111; and to supply deficiencies in the written agreement: Miller v. Fichthorn, 7 Casey 252; Chalfant v. Williams, supra; but, as a general rule, it is inadmissible to contradict or vary the terms of a written instrument: Hain v. Kalbach, 14 S. & R. 159; Barnhart v. Riddle, supra; Miller v. Fichthorn, supra ; Harbold v. Kuster, 8 Wright 392; Lloyd v. Farrell, 12 Id. 73; Anspach v. Bast, 2 P. F. Smith 356. In cases of fraud, accident or mistake, the rule is different. Where equity would set aside or reform the instrument on either of these grounds, parol evidence is admissible • to contradict or vary the terms of the agreement as written: Christ v. Diffenbach, 1 S. & R. 464; Iddings v. Iddings, 7 Id. 111; Miller v. Henderson, 10 Id. 290 ; Parke v. Chadwick, 8 W. & S. 96 ; Clark v. Partridge, 2 Barr 13; Renshaw v. Gans, 7 Id. 117; Rearich v. Swinehart, 1 Jones 233. But the evidence of fraud or mistake ought to be of what occurred át the execution of the agreement, and. should be clear, precise and indubitable: Stine v. Sherk, 1 W. & S. 195; otherwise it should be withdrawn -from the jury : Miller v. Smith, 9 Casey 386. Here there is no allegation in either affidavit that the defendants were induced to execute the lease on the faith of the alleged parol agreement, or that it was omitted from the lease by fraud or mistake. Being incapable of proof, it is the same as if-it had never been made, and therefore it constitutes no defence to the action: Hill v. Gaw, 4 Barr 493. Where parties, without any fraud or mistake, have deliberately put tbeir engagements in writing, the law declares the writing to be'not.only the best, but the only, evidence of tbeir agreement, and we are not disposed to relax the rule. It h,as been found to be a wholesome one, and now, that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more imperative.

Judgment affirmed.


text:
    Provenchere’s Appeal.
    1. The intention of the testator of each will separately is to he gathered from its .own four corners.
    2. As a general rule, where the time or other condition is annexed to the substance of the gift and not merely to the payment, the legacy is contingent.
    3. Where interest either by way of maintenance or otherwise is given, to the legatee in the mean time', the legacy notwithstanding the gift itself be postponed, vests on the death of the testator.
    4. A testator gave a fund in trust to pay the income to.his daughter-in-law “ during her widowhood and after her decease or marriage,.to hold the same for the use of my grandchildren, A., L,, 3?. and M., share and share alike, the income to he applied to their maintenance and education, and the capital to he paid to them as they respectively attain the age of tvrenty-one. In case the daughters marrying in their minority their shares to he paid at the time of their marriage.” Held, that the legacies vested in the grandchildren at the death of the testator.
    5. Patterson v. Hawthorn, 12 S. & R. 112, Buckley v. Reed, 3 Harris 83, McGill’s Appeal, 11 P. F. Smith 46, remarked on.
    February 9th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia: Of January Term 1871, No. 162.
    This appeal arose from the decree of distribution of the balance found to be in the hands of William V. Keating, trustee under the will of Peter Provenchere, deceased, who died in 1825, having made his will dated the 8th of September in that year; by which, amongst other things, he devised a tract of land to the children of a son, and further devised and bequeathed as follows :—
    “ I devise and bequeath unto John Keating of Philadelphia and Jerome Keating of the county of Philadelphia, all my estate real and personal whatsoever and wheresoever (except the tract above mentioned), to have and to hold the same, &c., upon the following trusts: — Upon trust as to my books, &c., and everything contained in my chamber, for the sole and separate use of my daughter Amelia Marguerite, wife of Joseph Merat, notwithstanding her coverture, and to be entirely at her disposal: — and upon' trust as to one moiety of the residue of my said estate, not above disposed of, to hold the same for, the sole and separate use, as aforesaid, of my said daughter Amelia, &c., * * * and upon trust as to the other moiety to invest the same from time to time in some productive manner, at their discretion, and pay over the income or interest thereof to my daughter-in-law Maria Rutgers, during her widowhood, and after her decease or marriage to hold the same for the use of my grandchildren, Amelia, Lise, Ferdinand and Mary, share and share alike, the income to be applied to their maintenance and education, and the capital to be paid them as they respectively attain the age of twenty-one years. In case the' daughters marrying in their minority, their shares to be paid at the time of marriage.” * *'*
    Maria Rutgers Provenchere, the first-named legatee for life, died on the 11th of June 1869, a widow, intestate. Of the four grandchildren named in said will, Ferdinand and Amelia (now the wife of George Maguire) survived their mother and arg still living. Mary, intermarried with A. S. Robinson,'died August 22d 1840,. intestate, leaving her husband surviving her, and one child, Mary, who died on the 10th of February 1866. Lise, intermarried with Frederick Saugrain, died March 25th 1868, leaving her husband surviving her, and four children, all of whom are of age. Both Mary and Lise had attained full age at the time of their respective marriages. The four children named in the will were all the children of Maria Rutgers Provenchere and her husband, the testator’s son.
    II. E. Wallace, Esq., was appointed auditor to make distribution of the balance appearing on the trustee’s account.
    The balance for distribution, after deducting some payments, the expenses of the audit, &c., amounted to $12,435.56.
    The auditor in conclusion reported; * * * “ On the whole the auditor is of opinion that the interest of the children was entirely contingent, and did not vest until the death'of Mrs. Maria Rutgers Provenchere, and then could only vest in the survivors of the four named in the will, to wit, Ferdinand Provenchere a.nd Mrs. Amelia Maguire; to each of whom he accordingly awards the moiety of the said balance of principal, being the sum of $6217.78.”
    The administrator of Mrs. Lise Saugrain and Mrs. Mary Robinson excepted to the report: — that the auditor should have reported one-fourth of the balance to each of them.
    The Orphans’ Court, Ludlow, J., delivering the opinion, sustained the exceptions, deciding that the legacies to the grandchildren were vested, and decreed that one-fourth of the fund be paid to each of the two grandchildren of the testator and to the administrator of those deceased.
    Ferdinand Provenchere and Amelia Maguire appealed to the Supreme Court and assigned the decree of the Orphans’ Court for error.

      Chapman Biddle, for appellant.
    Where the disposition of the produce or income is distinct from that of the capital, the interest in the latter will vest only at the time of its distribution : Billingsley v. Wills, 3 Atk. 219; Cloberry’s Case, 2 Ventr. 242. Where interest or dividends of property are bequeathed for life, and the context of the will shows that no interest in the principal is intended to pass until after the determination of the life estate, the legatees over after the life estate, do not take vested interests during the continuance of the life estate : Batsford v. Kebbell, 3 Vesey 363; Bennett v. Seymour, Ambler 521; Houghton v. Whitgreave, 1 Jac. & W. 146; Leake v. Robinson, 2 Merivale 387; King v. King, 1 W. & S. 207. Where there is no gift but by a direction to pay, or divide and pay at a future time, or on a given event, or to transfer ‘from and after” a given event, the vesting will be postponed until after that time has arrived or that event has happened, unless, from particular circumstances, a contrary intention is to be collected: 2 Wms. on Exrs. 1108; Lamb v. Lamb, 8 Watts 186; Moore v. Smith, 9 Watts 403; Bayard v. Atkins, 10 Barr 22; Seibert’s Appeal, 1 Harris 501; Bowman’s Appeal, 10 Casey 19; Roberts’s Appeal, 9 P. F. Smith 72; Cooper v. Scott, 12 Id. 141; Morley v. Bird, 8 Vesey 628; Stuart v. Bruce, Id. 631.
    February 20th 1871,
    The court declined to hear J. Sword and W. S. Rawle (with whom was P. Mo Call), for the appellee.
   .The opinion of the court was delivered,

by Sharswood, J.

There are no arbitrary or unbending rules in the construction of the words of a will. No two wills are in all respects alike. Where indeed the same precise form of expression occurs as may have been the subject of some former adjudication, unaffected by any indication of a different intention in other parts of the instrument, the courts, with a view to certainty and stability of titles, will follow the precedent. Counsel can thus be enabled to advise with confidence. Nevertheless; the cardinal canon still holds good, that the intention of the testator of each will separately is to be gathered from its own four corners. Hence almost every general rule has its recognised special exceptions, with exceptions to such exceptions which bring us back to the general rule again, and this may be and sometimes has been carried even further in the vain attempt to generalize and classify all the decisions upon this most difficult and doubtful subject — the ascertainment of the intention from the words of a man, who in many cases had no intention at all, the question not being present in his mind at the time the words were used. These remarks are particularly applicable to the controversies which have arisen as to whether future legacies give present vested or contingent interests. The determinations are very numerous — not always reconcilable — and in the nature of the subject this was inevitable. Yice-Chancellor Sir Launcelot Shadwell has remarked very justly: “ The question is one of substance and not of form. The question in all the’cases has been whether the testator intended it as a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies, and the answer to this question has been sought for out of the whole will and not in particular expressions Leeming v. Sherratt, 3 Hare 14. Thus it is true as a general rule, that where the time or other condition is annexed to the substance of the gift and not merely to the payment, the legacy is contingent; but a well-recognised exception to this rule is that where interest, whether by way of maintenance or. otherwise, is given to the legatee in the mean time, the legacy shall, notwithstanding the gift itself appears to he postponed, vest immediately on the death of the testator.. This circumstance indicates an intention that the beneficial enjoyment shall begin at once, and payment only of the principal or capital be postponed. Where a legacy is given by a direction to' pay when the legatee attains a certain age, the direction to pay may import either a gift at the specified age or a present gift with a postponed payment, and if the interest is given in the mean time it shows that a present gift was intended: In Re Hart’s Trusts, 3 He Gex & Jones 195. But to this exception, the English authorities show a still further exception within which it is supposed that the case which we now have under consideration falls. Where the gift of interest or maintenance is -distinct, and the direction is to pay or transfer the principal sum at the specified age or upon the condition named, the legacy is contingent. Such, for example, is Watson v. Hayes, 5 Myl. & Cr. 125, where the sum of £25 yearly was directed to be paid for the maintenance and education of the legatee till twenty-one or marriage, when the sum of ¿£500 was to be paid to her. Lord Cottenham said: “ It is well known that a legacy which would upon the terms of the gift be contingent upon the legatee attaining, a certain age may become vested by a gift of the interest in the' mean time, whether direct or in the form of maintenance, provided it be of the whole interest, which clearly marks the principle that it is the gift of the whole interest which affects the vesting of the legacy. Such was the opinion of Sir William Grant in Hanson v. Graham, 6 Vesey 239, and Leake v. Robinson, 2 Merivale 363, and recognised by Sir John Leach in Vawdry v. Geddes, 1 Russ. & My. 203. It is therefore the giving the interest which is held to affect'the vesting of the legacy, and not-the giving maintenance; but where maintenance is given, questions arise, whether it be a distinct gift or merely a direction as to the application of the interest; and if it be á distinct gift, it has no effect upon the question of the vesting of the legacy.” Whether in the previous case of Batsdorf v. Kebbell, 3 Yesey 363, there was such a distinct gift may perhaps be doubted, but certain it is that Lord Chancellor Rosslyn put his decision on that ground. It was the bequest of the dividends that should become due on ¿£500 three per cent, bank annuities, until the legatee should arrive at a certain age, at which time the executors were to transfer to him the principal sum of ¿£500 of three per cent, bank annuities for his own use. Lord Rosslyn said: “ Upon the cases it-appears that dividends are always a distinct subject of legacy, and capital stock another subject of legacy.” But the reason of this is not given and is not very apparent. Lord Justice Turner, in Re Hart’s Trusts, 3 De Gex & Jones 195, remarks, that Batsdorf v. Kebbell, seems to have proceeded on the marked distinction which was drawn between the dividends and the capital.” This appears to have been the opinion of Chief Justice Gibson, for in King v. King, 1 W. & S. 207, he says: “ A bequest of dividends is a clear exception to the general rule; for -in Batsdorf v. Kebbell, Lord Rosslyn pronounced them to be no part of any general fund, but always a distinct subject of separate bequest. Cases of interest are more critical; yet in most of the preceding cases adduced in support of the general rule, the first legatee had no more than the interest accruing on a mortgage or a trust fund. And the cases instanced as exceptions to the rule are perhaps not properly such, hut instances in which the rule of interpretation has been overborne by an opposing intention collected from all parts of the will. But to preclude the operation of the rule in any case, such an intention must be clear, manifest and indisputable.” Whether the rule to which I have adverted, that where the gift of the interest, income or dividends is distinct, — provided it be the interest, income or dividends of the fund itself subsequently given, and not something else, — ought to be adopted in this state, it is unnecessary to consider here. Mr. Jarman remarks: “ It must not too readily be assumed that any given case falls within the principle, as the courts have evinced no great inclination to extend it; and in truth, in some of the cases of this class, the difference of expression was very slight:” 1 Jarman on Wills 765,-note.

It is not disputed that under the will of Peter Provenchere a moiety of the residue of his estate at the death of his daughter-in-law Maria Rutgers vested in his grandchildren Amelia, Lise, Ferdinand and Mary, share and share alike. If not an express direct gift to them then, there is what is equivalent to it. The trustees from that time are to hold for their use, to apply the income to their maintenance and education and the capital to be paid to them “ as they respectively attain the age of twenty-one years.” Indeed it could not be disputed after the cases of Schriver v. Cobeau, 4 Watts 130, and Roberts’s Appeal, 9 P. F. Smith 70. In each of those cases there was first a gift of the interest or income and then a gift of the principal at a specified period. What is supposed to distinguish the disposition now in controversy from those cases is that the gift of interest or income is distinct to one person, and then afterwards of the principal to others. Hence the argument that as there is no beneficial enjoyment from the fund given to the legatees in remainder during the life of the first taker, there is no indication of any intention that the legacy to them shall vest before the time when that beneficial enjoyment begins. But let us look at the whole disposition taken together. As we have seen, by concession the bequest of income to the grandchildren on the death of Mrs. Rutgers vested the principal of the legacy immediately in them, although not payable to them until they respectively attain the age of twenty-one. Why then should the previous bequest of the same interest — not of another distinct subject — to Mrs. Rutgers prevent it from vesting on the death of the testator, in the same manner as if it had been a bequest of the principal to Mrs. Rutgers, and after her death to the grandchildren, in which case no one questions that all would be vested ? It is not easy to see. The testator certainly expressed no contingency of survivorship at that period in the gift to his grandchildren, and there is no reason to imply it. The fund was bequeathed to trustees to invest the same and pay over the income or interest thereof” to Maria Rutgers; but that was of course the income or interest of that very fund which at her death or marriage it is conceded vested in the grandchildren. It might be different if it were a distinct gift not out of the same fund. In Patterson v. Hawthorn, 12 S. & R. 112, there was a distinct bequest of interest to the widow for life with a division, of the principal at her death, and the legacies in remainder were held to be vested. That case has been followed in 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. It is true that in Patterson v. Hawthorn, and in all these cases the bequest over was to the legatees “ or their heirs,” and the effect of these words was largely discussed. It might indeed be inferred from some parts of the opinions that those words controlled the determination as they were construed to mean such persons as would be entitled as their representatives.” I am convinced, however, upon a closer examination that if these words had not been employed, upon the principles and reasoning advanced the result would have been the same. If we strike out these words these cases are as nearly upon all-fours with this one as well can be. Instead of leading to the construction adopted they seem to have been regarded rather as a disturbing element. They had to be explained and reconciled with the idea of an immediate vesting. For it was plausibly contended that the bequest in remainder to the legatees or their heirs was an alternative one, which was irreconcilable with any vesting in the lifetime of the first taker. When it was settled that these words were a limitation, and not a distinct bequest over, the cases were all decided upon a broader principle directly applicable in the construction of the will before us. When the enjoyment of an entire fund is given in fractional parts at successive periods which must eventually arrive, the distinction betwixt time annexed to payment and time annexed to the gift becomes unimportant. In such a case it is well settled that all the interests vest together: 1 W. & S. 207; 11 P. F. Smith 51. Had the legacy here been direct to Maria Rutgers during widowhood, with remainder to the grandchildren, share and share alike, the interests of the grandchildren would have vested immediately on the death of the testator beyond any possible question: Balmain v. Shore, 9 Vesey 507; Monkhouse v. Holme, 1 Bro. C. C. 298, and other cases cited: 1 W. & S. 207. But under such a bequest Maria Rutgers would only be entitled to enjoy the interest or income, and it certainly ought to make no difference in the construction that the testator has expressed exactly its legal effect. It would present a very strange anomaly if this should be so held.

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