author: Mr. Justice Trunkey

text:
    Appeal of the Trustees of the University of Pennsylvania.
    1. In the distribution of a decedent’s estate where there is a deficiency after the payment of debts, expenses and specific legacies, the loss is to be borne entirely and proportionally by those pecuniary legacies which are in their nature general. An annuity charged on the personal estate is for this purpose to be esteemed a general legacy.
    2. Where there is any valuable consideration for a testamentary gift or the relinquishment of any right or interest, such legacy will be entitled to preference of payment over other general legacies which are mere bounties.
    3. A general legacy to a volunteer will not be entitled to any exemption from abatement on the ground of its being applied to any particular object or purpose, as where the bequest is to a wife or child or to a charity.
    4. Although a testator may by special provision in his will exempt one or more legacies from abatement at the expense of others, yet the presumption of intended equality so far exists and governs that it can only be overcome by unequivocal evidence of intent to the contrary.
    5. A testator may by the terms of his will prevent a legacy lapsing by the death of the beneficiary occurring before the testator’s death ; but to effect this object ho must declare, either expressly or in terms from which it can be collected with sufficient clearness, what person or persons he intended to substitute.
    O. A testator provided, inter alia, as follows: “I give and bequeath $7500 unto A. B., daughter of O. D.; but it is my will that whatsoever amount her son E. F. shall owe me, principal and interest, shall betaken to have been so much paid on account of said legacy, and his notes shall be handed over to her or her representatives.” Unlike the other clauses in testator's will this clause was combined with one bequeathing a legacy to a grandchild of C. D. Held, that the terms of the will did not prevent a lapse of A. B.’s legacy, she having died before the testator.
    February 10th 1881.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., did not sit.
    Appeal from a decree of the Orphans’ Court of Philadelphia county: Of July Term 1880, No. 123.
    This was an appeal of the Trustees of the University of Pennsylvania from a decree of the said court dismissing their exceptions to, and confirming the adjudication of the judge auditing the first account of tho executors of Dr. George B. Wood, deceased.
    Two questions were raised by the record and assignments of error. (1) Whether a certain annuity and a certain capital sum bequeathed by Dr. Wood to the Trustees of the University should abate pro rata, as legacies, with other pecuniary legacies, or whether they constituted a fund which the testator had engaged to provide by a binding promise, and were, therefore, exempt from abatement. (2) Whether a certain legacy to Hannah Chamberlain lapsed and fell into the residue.

      1. The facts relating to the first question were as follows: Dr. George B. Wood, of the city of Philadelphia, died in March 1879, at the age of seventy-two years, leaving neither widow nor issue; having made his will dated June 22d 1871, with seven codicils, the last dated July 12th 1875, duly proved, containing a great number of devises and specific and pecuniary legacies. The residue of the estate is thereby given to the University of Pennsylvania. The estate has thus far proved insufficient to pay all the legacies.
    The will contains various provisions for the benefit of the University of Pennsylvania, with which institution Dr. Wood had been intimately associated during his life. He graduated from the department of arts in 1815, and from the medical department in 1818. In 1835, he became professor of materia medica, which position he held for thirty-five years. He was then chosen Emeritus professor in the medical department, and for many years was a trustee of the institution; and these latter positions he held up to the time of his death. '
    In January 1865, Dr. Wood, being then the chairman of the standing committee of the Trustees of the University on the medical department, w'rote the following communication :
    “ To the Board of Trustees of the University of Pennsylvania :
    “ The chairman of the standing committee on the medical department proposes to appropriate out of his income the annual sum of $2000, or as much as may be required, to be applied by the board of trustees to the support of an auxiliary faculty of professors in the medical department, for instruction in those subsidiary branches of knowledge, which, though not at present taught in the school, are essential to a thorough medical education.
    “ He makes this proposition with some diffidence, as he has no right to suppose that the board can have so much confidence in his disinterestedness’ or stability of purpose as to justify them in commencing an enterprise, any misdirection or failure of which might in some measure compromise the dignity of the board.
    “ He has only one condition to suggest. Though his income at present is such as to justify him in malting this appropriation, and he can see no reasonable ground to apprehend' that it might be so far diminished as to render the appropriation at any time in the future inconvenient, yet in the uncertainty of affairs, it may happen that this sum may be necessary to supply his ordinary expenditures, and he therefore feels it incumbent on him to make the appropriation conditional on his future ability to maintain it without material personal inconvenience ; he pledges himself, however, that should the board so far honor him.as to accept his proposition, no trifling cause shall be permitted to interfere with its due fulfilment on his part.

      “ Should the board intimate their approval of the proposed measure, the committee will proceed, in accordance with the duty already assigned to them by the trustees, to consider and mature a plan for the establishment of the contemplated faculty of lectureships to be submitted to the board.
    “ The undersigned has only further to observe, that should the proposed measure be carried into effect, he would feel personally much obliged to the gentlemen of the board if they would consider the arrangement, so far as he is personally concerned, as strictly confidential, and to be known only to the trustees.
    Very respectfully,
    George B. Wood,
    Chairman of Committee on Medical Department.
    Philadelphia, January 31st 1865.”
    The proposition thus made was accepted by the trustees, who adopted and placed upon their minutes the following resolutions:
    “Resolved, That the trustees gratefully accept the proposition made by Dr. George B. Wood, for the founding of an auxiliary faculty in the medical department of the university.
    “Resolved, That the thanks of the trustees are due, and are hereby presented to Dr. Wood for the munificent offer he has made for the support of such an auxiliary faculty, and that they receive the same as additional evidence of his interest in the'prosperity, welfare, and usefulness of his alma mater, in whose service he has devoted a large portion of his life, with results alike honorable to himself and the university.
    “Resolved, That the committee on the department of medicine be authorized and requested to make all arrangements that may be required to organize the proposed faculty, and to provide for the election of professors as lecturers for the several chairs which may by such organization be established.”
    On the 4th of April 1865, Dr. Wood wrote further to the trustees as follows:
    “ The chairman of the committee on the medical department wishes in addition to say, in his individual capacity, that should the plan presented by the committee receive the sanction of the board, he desires to substitute for the $2000 annually, before placed at the disposal of the trustees, the sum of $2500 on the same conditions, the amount being necessary to carry into effect the plan referred to, which, so far as concerns that feature requiring additional outlay, was adopted by the committee, not only with his hearty approval, but, in fact, at his suggestion, after full consideration, and with the conviction on his part that it was essential to the completeness of the proposed measure.
    George B. Wood.
    April 4th 1865.”

      This communication accompanied the plan referred to, reported by the committee, for the organization of' the auxiliary faculty of the medical department.
    The trustees adopted the report, and the auxiliary faculty was instituted accordingly. It comprised five professorships, each of whom was to receive $500 per annum, to be paid at the end of the course, upon the certificate of the dean that the duty had been properly performed. “No salary to be paid if no lecture should be given; and in case of an incomplete course a proportionate part of the salary only to be paid.”
    The last provision in the plan proposed by the committee and adopted by the trustees was as follows:
    “ The professors shall be appointed for one year, after public notice of at least three months, at the regular meetings of the board in November next — nominations having been made at a preceding meeting, and shall be reappointed annually thereafter during satisfactory service, at the regular meetings of the board in the same month, so long as the plan for the establishment of the auxiliary faculty of medicine now adopted shall continue in operation.”
    The plan thus started has continued in operation ever since. Dr. Wood while he lived always paid the stipulated sum of $2500 per annum. It was shown that all of the income of the university was so appropriated that but for the aid to be furnished by Dr. Wood the auxiliary faculty could not have been created, and that it was created solely in consequence of the propositions contained in the communications, of January 81st and April 4th 1865.
    The will is elaborately drawn. The sections containing the bequests, to the University of Pennsylvania were the following:
    Sect. 27. “ Whereas, at. my request, the trustees of the University of Pennsylvania have established a faculty co-operative with the medical department, consisting of five professorships, viz.: 1. Botany; 2. Zoology and Comparative Anatomy ; 3. Mineralogy and Geology ; 4. Medical Jurisprudence ; and 5. Hygiene ; which I have aided by an annual payment; and it is my desire that the said faculty should be permanently established: Therefore, for that purpose, I give and bequeath unto the trustees of the University of Pennsylvania, fifty thousand dollars, interest to be kept safely invested in ground-rents, first mortgages, or in the loans of the city of Philadelphia, the state of Pennsylvania, or of the United States; and I advise, in order to keep said capital unimpaired, that a few hundred dollars of the increase, and of all gains on resales of investments, should be added to the principal; and also all income which may accrue at such times as any of the professors’ chairs shall remain unfilled, which may in time enable the trustees to purchase illustrative apparatus or material, or specimens for the several courses of said branches of science, or to increase the number of chairs in said faculty, or the salaries of the professors in the existing chairs. It is my desire and will that twenty-five hundred dollars of the income of said endowment, when all the chairs are filled, shall be applied to the payment of the professors’ salaries, or five hundred dollars unto each who shall have delivered a bona fide course of lectures, of which the trustees shall be the judges; which lectures will preferably be in the months of April, May and June. Such salaries will be paid after the delivery of the course of lectures, and will be in addition to any fees that may be paid by the pupils.”
    By section 28 a specific gift of medical plants is made to the University, “ a portion of the income of the investments mentioned in the preceding section, mot otherwise consumed, to be applied to the'preservation and increase of said plants.”
    By section 29, §5000 are given to the University for the establishment of a botanical garden and conservatory.
    Sect. 30. “ Having heretofore engaged to pay, and paid, to the trustees of the University of Pennsylvania, twenty-five hundred dollars a year, or so much as they should require for the support of said auxiliary faculty of professors, I direct my executors to continue such payments as may be needed, within said amount, until said legacy shall be paid to an amount to yield an equal income, which -will be without deduction from the legacy.”
    By section 31, a legacy of $75,000 is given for the erection and maintenance of a clinical hospital, under the control of the trustees of the University.
    By section 54, the residue of the estate, real and personal, is also given to the University.
    By section 23 of a codicil of even date with the will, the residue of the proceeds expected to arise from an extensive cranberry cultivation, on the testator’s estate in New Jersey, is given to the University of Pennsylvania, one-lialf to be applied to the support of the clinical hospital, and the other half for the general purposes of the University.
    By section 16 of the codicil, it is provided as follows:
    “ My executors are hereby enjoined to distribute or pay no part of my estate in fulfilment of my will, except to pay legacies of less amounts than $5000 ; and except, also, the payments necessary to continue those annual payments which I have for some years made by agreement with certain institutions, in the interval before getting the principal of their legacies, until the whole of the hundred acres, more or less, shall have been put under cranberry culture; and for the speedy accomplishment of that object, not only all the net proceeds of the cranberries, but also so much of the whole income of my estate as can be usefully applied, shall with such exception be used therefor.”
    In section 52 the testator directed as follows: “ Should my estate prove deficient to pay all the legacies, then the pecuniary legacies will abate ratably.”
    The cranberry cultivation did not fulfil the testator’s expectations, and owing to depreciation in the testator’s real property, it was estimated that his estate would pay between sixty and seventy-five per cent, of all the pecuniary legacies.
    Before the auditing judge, it was conceded that the legacy of $5000 given by section 29, for the establishment of a botanical garden, and that of $75,000 given by section 31, for the erection and maintenance of a clinical hospital, are subject to abatement •under the provision of the will just recited. But it was contended by the Trustees of the University, that no abatement should take place with respect to the annuity of $2500 per annum provided by section 30, or the capital fund of $50,000 given in section 27, on the ground, that, by the letters and actions of Ur. Wood in his lifetime, and the action by the trustees thereby induced, Dr. Wood had bound himself to provide after his death for the increased expenditures and engagements thus incurred at his instance; and that these bequests are mere testamentary declarations of his fulfilment of such obligation. On the other hand, it was claimed that the said legacy of $50,000, and the annual payment of $2500, should abate ratably with the other pecuniary legacies.
    The auditing judge (Penrose, J.), in the adjudication, held as follows: * * * “ The question is a difficult one. As a general rule, in the event of the deficiency of assets, all pecuniary legacies abate pro rata; and this is in accordance with the express direction of the testator. It is also well settled that for the purposes of abatement, annuities are to.be treated as general pecuniary legacies: Theobald 459; Williams on Executors 1367. This rule it is said, however, ‘ is to be understood only as among legatees who are all volunteers; for if there be any valuable consideration for the testamentary gift, as where it is given in consideration of a debt owing to the legatee, * * * such legacy will be entitled to a preference of payment over the other general legacies which are mere bounties:’ Williams on Executors 1364; Theobald, p. 459; Blower v. Morret, 2 Ves., Sr., 420; Heath v. Dendy, 1 Russ. 543; Norcott v. Gordon, 14 Sim. 258, &c., &c. The first point to be considered therefore, is, was there an obligation on the part of Dr. Wood to the University, which could have been enforced against his estate.”
    [The auditing judge here recited the letters of Dr. Wood to the trustees, and their resolutions and actjon in pursuance thereof,'as hereinbefore set forth, and proceeded]: “ It must be admitted that these acts of the trustees, based upon Dr. Wood’s promise to pay an annual sum, furnish a consideration which would give a binding effect to such promise. It may also be conceded that while

      he lived the promise was obligatory, subject only to the condition of his ability to pay. A promise to pay when able is undoubtedly valid: Addison on Contracts, (3d Am. ed.) sect. 411; Groome’s Appeal, 35 Leg. Int. 70; Waters v. Earl of Thanet, 2 Queen’s Bench 757. It is different, of course, where the ability to pay is by the terms of the contract made dependent upon the judgment of the debtor, as in Nelson v. Von Bonnhorst, 5 Casey 352.
    “ But what is thereto continue the liability beyond the perio d of Dr. Wood’s lifetime ? It is not denied that a contract to pay a perpetual annuity is possible. In such case, however, appropriate words should be used, and the court must be convinced that such was the intention of the parties. * * * Not only are there no words here showing an intention to bind the estate of the promisor after his death, but the agreement is to pay out of 4 his income; ’ and this is made subject to the condition that ho is not thereby to be put to inconvenience. At his death his income ceases. What is there to require payment from any other source ? That this was the limit of his liability is indicated further by the provision in the plan adopted by the committee with regard to the appointment of professors. For while the ordinary professors at the university are, as was testified by the secretary of the board of trustees, elected for an indefinite term, the auxiliary faculty are appointed annually, and only so long as the plan for the establishment of the auxiliary faculty of medicine shall continue in operation. The plan is referred to in the letter of 4th of April 1865, and is to be read in connection with it in order to ascertain the extent of the liability which was then created.
    “ In the opinion of the auditing judge no right of recovery, apart from the provisions in the will, existed in the university at Dr. Wood’s death.
    44 If this view be correct, then the provisions referred to in the will, not being in discharge of an obligation, would fall under the general principle and be subject to abatement with other pecuniary legacies.
    “ There is nothing in the will which shows that the testator considered himself bound to pay for a longer period than his own lifetime. In section 27, he speaks of having aided by an annual payment, and of his desire that the faculty should be permanently established. In section 30, he says that he had heretofore 4 engaged to pay,’ but he adds, 4 and paid,’ as if he regarded his engagement as completed. So in section 16 of the codicil ho speaks of the annual payments which he had made for some years 4 by agreement.’ This is all; and it is entirely consistent with an agreement to pay so long as he lived and no longer. If section 30 were read by itself, it might be supposed the testator intended that under all circumstances, and in spite of any deficiency of his estate, the sum of $2500 was to be paid to the university until so much of the sum mentioned in section 27 was paid as would yield an income of that amount. But this section is to be read in connection with the codicil, which was executed the same day, and which provided (section 16) that no legacy over $5000 should be paid until the lands in New Jersey were placed in cranberry culture. This might not be for some years to come; and in the meantime therefore he gives to the university an annuity not exceeding $2500, the payment of which is to continue until the legacy of $50,000 is paid, viz., until the land has been put under cranberry culture.
    “ He has declared in express terms that ‘ the pecuniary legacies,’ i. e., all the pecuniary legacies, should abate. He has omitted to except any. We have no right to sa.y that he did not intend to include so considerable a one as that given to the university, the payment of which would require a very large portion of his entire estate.”
    2. The facts relating to the second question in the case were as follows:
    Dr. Wood by the 39th section of his will bequeathed as follows : [Unlike the other sections, the 39th was written in the same paragraph with the 38th, as here printed.]
    “38. Unto Elizabeth H. Sellers, daughter of Mary "Vanhorn, who was daughter of Mrs. Willis, sister of Peter Hahn, I give twenty-five hundred dollars. 39. I give and bequeath seventy-five hundred dollars unto Mrs. Hannah Chamberlin, a daughter of Mrs. Willis aforesaid; but it is my will that whatsoever amount her son David Edwards shall owe me, principal and interest, shall, be taken to have been so much paid on account of said legacy, and his notes shall be handed over to her or her representatives.”
    Mrs. Chamberlin, who was not a relative by blood (though she was connected by marriage) of the testator, died in his lifetime, leaving a son, Horatio F. Chamberlin (to whom letters of administration upon her estate have been granted), and grandchildren, children of a deceased child.
    The Trustees of the University claimed that this legacy lapsed by reason of Mrs. Chamberlin’s death in the testator’s lifetime, and that its amount fell into the residue of the estate and passed under the residuary clause of the will to the University. The auditing judge held on this point as follows:
    “ The Acts of Assembly, which in certain eases prevent 'lapse where the legatee dies in the testator’s lifetime, do not apply to this case. But it seems clear that there is a substitutional gift here to the ‘representatives’ of Mrs. Chamberlin; and that the legacy, therefore, does not lapse. The direction that the notes of David Edwards (which, however, seem to have been paid, as none have been found) should be handed over to the legatee, ‘ or her representatives,’ makes it plain that, to this extent, the legacy was not intended to fail by reason of her death before the testator; and as, when so handed over, they are to be regarded as ‘ so much paid on account of said legacy,’ it would follow that the whole of that on account of which the notes are so paid was equally intended to go to the representatives. See Gibbons v. Fairlamb, 2 Casey 217.
    “The word ‘representatives’ here is probably used in the sense of next of kin, as there is nothing to indicate that they are to take in a fiduciary capacity (Theobald 283). In such case the legacy would go to Mrs. Chamberlin’s issue. It was agreed, however, that if it should be held that the legacy did not lapse, it should be awarded to Horatio F. Chamberlin, administrator of Mrs. Hannah Chamberlin, by whom the distribution could be more conveniently made.
    “ It is, therefore, subject to abatement by reason of the deficiency of the estate : so awarded.”
    Exceptions were filed to the adjudication by the Trustees of the University, which, after argument, were on July 3d 1880, dismissed by the court and the adjudication was confirmed. The Trustees of the University thereupon took this appeal, and filed the following assignments of error:
    1. Because the court below erred in holding that the evidence submitted to them was not sufficient to establish a contract between the testator and these appellants, binding him to the payment of the expenses of the auxiliary faculty which he procured to be founded, not exceeding $2500 per annum.
    2. Because the court below erred in not directing the accountants to pay the full amount of $2500 for the yearly expenses of the auxiliary faculty aforesaid, which the appellant organized and kept up at his request, and in not directing the sum of $50,000, provided for in the will, to be paid over in full to the appellants.
    3. Because the court below erred in holding the provisions of testator’s will, so far as the same applied to the yearly sum of $2500 per annum and the capital sum of $50,000, as legacies liable to abatement, when said provisions were but the fulfilment of his stipulations and undertakings with the appellants.
    4. Because the court below erred in holding that the legacy of $7500, bequeathed by said testator’s will to Mrs. Hannah Chamberlin, did not lapse by reason of her death before said testator’s death, and in awarding the same to her administrator for the use of her next of kin.
    5. Because the court below erred in overruling the exceptions filed therein by the appellants to the adjudication or decree of distribution.

      Joseph B. Townsend (with whom was Eli K. Price), for the appellants.
    1. The determining question is whether it was the intention of Dr. Wood, and the understanding of the trustees, that his engagement to support the auxiliary faculty should terminate with his life, or continue and be fulfilled after his death. The court below conceded that the promise was obligatory while he lived, subject only to the condition of his ability to pay. All the circumstances attending the founding of the department, considered in connection with Dr. Wood’s language in his will, indicate that his agreement with the trustees was intended by him, and understood by them to be for a permanent endowment. He was sixty-eight years of age when he created this auxiliary department, and he intended to endow it with the permanent life of the university itself, not tó let it die or beg other support at his death. The only condition was, that if, during his lifetime, his own income, in the uncertainty of aifairs, should be so reduced as to prevent his making the annual appropriation “ without material personal inconvenience,” he should be relieved from the “pledge.” This contingency never happened. The trustees,, of whom Dr. Wood was one, advertised in the annual catalogue that the degrees would be conferred on those qualified “who shall have attended two full courses of lectures in the auxiliary department of medicine.” The faculty .was to be perpetual, though the. professors were to be elected annually. Dr. Wood in the 27th item of his will recited that the faculty had been established at his request, and his desire that it should be permanently established. In the 30th item he recites his engagement, his fulfilment of it during life, and directs his executors to continue the annual payment until the capital sum bequeathed should yield an equal income. That he recognised that the university would contract the same obligations after his death, and that his payment of them was obligatory, is shown by the order that the annual payment should not fail of being furnished, whether it came from income or principal of his estate, until the. payment over of the capital fund. In the 16th item of the first codicil, he defers distribution of his estate for a time, except payment of small legacies, “ and except also the payments necessary to continue those annual payments which I have for some years made by agreement with certain institutions,” &c. He gave the endowment fund of $50,000 in order to finally fulfil his obligation and to relieve the rest of his estate from the annual payments. It is not necessary that there should have been a contract right, legally enforceable, or for breach of which damages might be recovered. The law is well settled that where funds are bequeathed, in pursuance of any legal or moral obligation on the part of the testator, or where they are impressed with a trust recognising equitable rights in others, such bequests will be supported without abatement as superior to the claims of the legatees or volunteers: Burridge v. Bradyl, 1 P. Wms. 126; Ex parte Pye, 18 Vesey, Jr., 140; Sarah Zane’s Will, Brightly’s Rep. 347, note; Helfenstein’s Estate, 27 P. F. Smith 328; Ellison v. Ellison, 6 Vesey 656; Richardson
      v. Richardson, L. R., 3 Equity Cas. 686; Williams on Executors 1364; Theobald on Construction of Wills 469; Blower v. Morrett, 2 Vesey, Sen., 420; Davies v. Bush, 1 Younge 341; Stahlschmidt v. Lett, 1 Sm. and Giff. 421; Williamson v. Naylor, 3 You. & Coll. 208; Philips v. Philips, 3 Hare 282.
    2. As to the lapse of the legacy to Mrs. Chamberlin, she was not a relative saved by the statute from lapse. In the words of gift in the first clause of section 39, no substitutionary words are used. A legacy given to one, his executory, administrators, and assigns, is not saved from lapse, because that is expressing no more than the law infers, viz., that if the legacy becomes vested by the survival of the legatee who dies before payment, it must be paid to the executors. “Representatives,” or “legal representatives,” are the equivalent of executors or administrators. To create an alternative or substitutionary gift to another party as legatee, in place of a first-named legatee, the intent must clearly appear from the words of the will: Ralston v. Waln, 8 Wright 279, 287; Dickinson v. Purvis, 8 S. & R. 71; Patterson v. Hawthorne, 12 S. & R. 112; 2 Williams on Executors 1084, 1085-6; Gibbons v. Fairlamb, 2 Casey 217. The expression “to her or her representatives,” at the close of the second clause of the 39th section, relates only to the handing over of the notes of Mrs. Chamberlin’s son, held by the testator, which Mrs. Chamberlin, or — in case she survived him but died before payment — her representatives should bo obliged to take in part settlement. To hold that Mrs. Chamberlin’s “ representatives ” take the $7500 as substitutionary legatees, by direct gift from the testator, not claiming in a representative capacity through Mrs. Chamberlin, is to re-write that clause of the will. Unless they could so take, the legacy lapsed and fell into the residue; Gibbons v. Fairlamb, 2 Casey 217; Woolmer’s Estate, 3 Wharton 477; Nyce’s Estate, 5 W. & S. 260; Loxley’s Estate, 6 W. N. C. 529.

      R. Francis Wood, and Greorge W. Biddle, for the appellees.
    We do not admit that there is any evidence of a contract during Doctor Wood’s life. The delicate caution apparent in his letters not to fetter himself, is clear to any one who knew the man as his co-trustees did. Ho could, without legal liability, have given notice of withdrawal any year. But there is, in any view, no evidence of any contract to extend beyond his death. No intent can be gathered from the will that the university is to be preferred to the other beneficiaries. A substantially similar provision was made by section 26, in favor of the College of Physicians, and another by section 2 of the second codicil, to his cousin, Mrs. Bacon. If the bequest to the university do not abate, neither can the latter. The testator, however, directed what the law would have implied, that in case of deficiency, all his pecuniary bequests should abate. The annuities given temporarily, until payment of the principal legacy, are mere added legacies, subject, like the principal ones, to pro rata abatement. Doctor Wood had a strong purpose in behalf of the University of Pennsylvania, but he also had testamentary purposes in favor of his family and other objects, and the scheme of his will shows he intended that if any abatement was necessary, all pecuniary gifts should abate equally. See Fidelity Co.’s Appeal, Linnard’s Estate, 37 Leg. Int. 293.
   Mr. Justice Trunkey

delivered the opinion of the Court, February 28th 1881.

Whether Dr. Wood was legally bound to pay the University of Pennsylvania the sum of $2500 annually, during his life, is unnecessary to determine. Did he contract for such payments to be made after his death? He proposed to appropriate out of his income the annual sum of $2500, to be applied by the trustees to the support of an auxiliary faculty of professors in the medical department, stating he did so with some diffidence, as he had no right to suppose that the board could “have so much confidence in his disinterestedness or stability of purpose, as to justify them in commencing an enterprise, any misdirection or failure of which might in some measure compromise the dignity of the board,” that he made “ the appropriation conditional on his future ability to maintain it without material personal inconvenience and pledged himself, should they accept, that no trifling cause should interfere with its due fulfilment on his part. The trustees gratefully accepted, organized the faculty, and provided that the professors be appointed for one year, and reappointed annually during satisfactory service, so long as the plan for the establishment of the auxiliary faculty of medicine now adopted shall continue in operation.” They elected other professors for an indefinite period, but for this auxiliary faculty for one year. They understood that he intended himself to judge of his future ability to make the annual payments without inconvenience. His purpose was to make such payments. The trustees believed he would; and he did during his life. Both parties acted in accord with the promise contained in the proposition; but not a word in the proposition or resolutions tend to establish an agreement that he would provide for the payment of that sum, or any other, annually after his decease.

The nature of Dr. Wood’s pledge is shown by a written evidence, and that is the “engagement” and'“agreement” referred to in his will. If nude or for good consideration, on its face, he was under no moral or legal obligations to provide an annuity or an endowment fund. Probably he contemploted making the university a chief beneficiary of his estate; he did not promise this, and held out no reason for the trustees to expect it, other than continuous acts of generosity. His declarations in the will are evidence of his own understanding of the -writings. In sect. 27, after reciting that the trustees established the faculty at his request, which he had aided by an annual payment, and that it is his “ desire that said faculty and professorships shall be permanently established,” he says: “ Therefore, for that purpose 1 give and bequeath unto the trustees of the University of Pennsylvania $50,000.” This reveals that the testator deemed the “establishing” and “ founding” of the faculty and professorships temporary, and that he desired they should bo permanent. To that end he made the bequest. Here is his first expression for a permanent endowment, not in performance of an obligation, but to accomplish a desire. In sect. 16, of a codicil of same date as the will, he enjoined his executors to pay no legacies except those less than $5000, and except also the payments necessary to continue those annual payments which he had for some years m.ade by agreement with certain institutions, in the interval before getting the principal of their legacies, until the accomplishment of his directions for putting a tract of land under cranberry culture. He says, in sect. 80 of the will, “ having heretofore engaged to pay and paid to the trustees” $2500 a year, I direct my executors to continue such payments until said legacy shall be paid, which will be without deduction from the legacy. The words “ agreement” and “ engaged to pay and paid,” following sect. 27, would fairly apply to the proposition for the temporary establishment of the faculty, and the direction to continue the yearly payments, until the legacy of $50,000 shall be paid, is a bounty in furtherance of the permanent establishment he desired. It seems very clear that the testator was not bound by a contract for such payments to be continued after his decease.

Neither the acts of-the testator in his lifetime, nor the declarations in his will, recognise equitable rights in the appellant to any part of his estate standing in his name. He paid all he promised; he gives legacies for specified purposes. We have carefully considered the able argument of appellant on this point, sound in its statement of the law, but we fail to discover any evidence of property held in trust by the testator for the university, or that the university had an equitable interest in any property held in the testator’s name.

The rule is, that where there is deficiency after payment of debts, expenses and specific legacies, the loss shall be borno entirely and proportionally by those pecuniary legacies which are in their nature general. A general legacy to a volunteer will not bo entitled to any exemption from abatement, on the ground of its being applied to any particular object or purpose, as where the bequest is to a wife or child, or to a charity. But if there be any valuable consideration for the testamentary gift, or the relinquishment of any right or interest, such legacy will be entitled to preference of payment over other general legacies which are mere bounties. An annuity charged on the personal estate is a general legacy, and in cases of deficiency all annuities and legacies abate ratably, for since they cannot ^ all be paid in full, they shall all abate ratably, on the principle of the maxim, “equality is equity” or “ equity delighteth in equality.” This rule is subject to exceptions, for there are cases, where some annuities and legacies are to be paid in priority to others; but the onus lies on the party seeking priority to make out that such priority was intended by clear and conclusive proof. In absence of such proof, the testator must be deemed to have considered that his estate would be sufficient, and, consequently, not to have thought it necessary to provide against a deficiency by giving priority to some of the objects of his bounty. If the chances of deficiency are anticipated and provided for by the terms of the will then the directions of the testator will govern. It is always a question of intention, and when the intent of the testator is manifest to give one general legatee priority over others that intention shall prevail. As between legacies which are in their nature mere bounties, the presumption of intended equality exists and governs, unless overcome by unequivocal evidence to the contrary. Ho priority will be allowed where the expressions of the will are ambiguous: Towle v. Swasey, 106 Mass. 100; Miller v. Huddlestone, 3 Macn. & G. 513; Attorney-General v. Hudson, 1 P. Wms. 675; Attorney-General v. Robins, 2 Id. 23; 2 Williams on Ex’rs 1364-1371.

Applying these principles to this case, the Orphans’ Court was clearly right in ruling that the legacy of ¡$50,000, and until its payment the sum of $2500 per annum, to the trustees of the auxiliary faculty, must abate ratably with, the other pecuniary legacies. It seems plain that no conclusive proof can be furnished from the language of the will of intent to give these legacies priority over others; if there be expressions which tend to favor priority they are much too ambiguous to be relied on in support of a preference. Indeed, the intention as to all pecuniary legacies is that they shall stand on. equal footing. The testator anticipated the possibility of a deficiency, and made this provision: “ Should my estate prove'deficient to pay all the legacies, then the pecuniary legacies will abate ratably” — precisely what the law would have declared had he given no such direction. He made numerous bequests to near relatives and friends, as well as to charities, and as he expressed no particular intent as to any one of the pecuniary legacies or annuities, and all are to volunteers, they must abate proportionably in accord with the general intent. We discover no sufficient evidence of an intended priority in favor of the appellant.

The second question presented is, Did the legacy of $7500 to Hannah Chamberlin lapse by reason of her death before the^testator ? This legacy is given as follows: “ I give and bequeath §7500 unto Mrs. Hannah Chamberlin, a daughter of Mrs. Willis, aforesaid; but it is my will that whatsoever amount her son David Edwards shall owe me, principal and interest, shall be taken to have been so much paid on account of said legacy, and his notes shall be handed over to her or her representatives.”

The word representatives may mean next of kin, or descendants, or executors, or administrators, according as the intention of the testator is manifested in the will. It has been held to mean the husband of a deceased legatee: Gibbons v. Fairlamb, 2 Casey 217. In all cases where it is apparent in the context of the will that a word is not used in its ordinary sense, if the intention can be ascertained, it shall govern rather than a technical definition, or the usual sense. In this will there is little room for interpretation; the testator seems to have been at no loss for an intelligent use of words. When he intended to give the interest of a sum to one for life, and at the death of the legatee the principal to his legal representatives, he said so, as in the bequest to John Garrison. If he meant a legacy should not lapse, in case of the decease of the legatee before himself, he so directed, as when he added to the bequest to John Quin, “ if he deceased to go to his children.” Evidently, he was mindful of collateral inheritance taxes, and gave certain legacies clear of taxes. He closed the codicil of even date with his will, thus: “And should any provision of my will fail by lapse or otherwise, it is my will that all dispositions so failing shall fall into and become part of the residue of my estate, and as such to vest in the residuary legatee, under the residuary clause of my will.” Surely, he contemplated the probability of lapse of some of the numerous legacies.

There is not a substitutionary word applied to the legacy of §7500 to Mrs. Chamberlin. The clause directs that her son’s indebtedness, whatsoever it may be, shall be so much paid on account of said legacy, and the notes handed to her or her representatives.

What is there in this will to show the words were not used in their usual sense ? Is it the general and particular accuracy of language in every other part ? A testator may prevent a legacy from lapsing; but to effect this object he must declare, either expressly or in terms from which it can be collected with sufficient clearness, what person or persons he intended to substitute for the legatee dying in his lifetime: 2 Williams on Ex’rs 1210. This legacy is to Mrs. Chamberlin, not to her son, or her representatives. An advancement on account of the legacy, made in her lifetime, will not prevent a lapse. We are of opinion that the terms of this will, instead of showing the testator’s intention to prevent a lapse of the legacy to Mrs. Chamberlin, in case of her death before his, show that in such event he intended said legacy, or so much of it as had not been advanced, should fall into and become a part of the residue of his estate.

So much of the decree as directs payment of money on the legacy, to Hannah Chamberlin is reversed, and record remitted for further proceedings. Costs of appeal to be paid by the executors out of moneys of the estate.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Ruchizky versus De Haven.
    1. When a person enters into stock-gambling transactions through the medium of a broker, he will be deemed to be dealing with such broker as a principal, not as an agent.
    2. Where a minor of limited means embarks in stock transactions to a large amount by way of margins, the court will, even in the absence of direct evidence that he did not intend to receive- or deliver the stock bought or sold on his behalf, infer that such was not his intent, and will therefore stamp the contract as a wagering contract merely, contrary to the policy of the law, and void ab initio.

    3. When the whole amount deposited by the minor as margins is lost in such transactions, he is at liberty to recover back at any time, from the brokers employed by him, the amount so deposited.
    4. Per Gordon, J. The doctrine that where an infant has executed a contract and has enjoyed the benefit of it, and afterwards, on coming of age, seeks to avoid it, he must first restore the consideration which he has received, that he.cannot have the benefit of the one side without restoring the equivalent on the other, may and certainly does apply in certain cases, but as a general rule is unsound. It certainly has no application to the present base.
    February 11th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1879, No. 23.
    Assumpsit, by Joseph Ruehizky, a minor, by his father and next friend Joseph Ruehizky, against Alexander H. De Haven, Hugh De Haven, S. L. De Haven, and Henry L. Townsend, trading as De Haven & Townsend. The plaintiff afterwards died intestate, arid by suggestion, filed cf record, his administrator Conrad Anwalter was substituted in his place.
    The following case stated was by agreement submitted to the court;
    “ And now, September 13th 1878, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict. That Joseph Ruehizky, the plaintiff decedent, at the time of bringing this suit, was an infant under twenty-one years of age, and only obtained his majority on August 12th 1877. That the defendants are and were since January 1st 1875, and before that, stockbrokers, having their place of business on Third street, Philadelphia; that the plaintiff decedent was on January 1st 1875, and before that, a clerk in the banking-house of the Northern Saving Fund, in Philadelphia, and so continued until September of 1876 ; that in January-1875, he began dealing in corporation-stocks on margins through the defendants, who acted as his brokers, not knowing him to be an infant; that these transactions continued from time to time until some time in August 1876 ; that the value of stocks purchased by the defendants for the decedent on his order during this time, at the price paid for the same, was $472,419.55.
    “ That the plaintiff decedent, while these transactions were being carried on, transferred certain corporate stocks to the defendants, and paid to them certain sums of money, all to be held and used by defendants as collateral security to them against loss by or on account of purchases or sales made by them for him as follows:
    1875.
    Jan. 22, 40 shares Philadelphia & Erie R. R. Co. $759.37
    “ “ 14 “ & R. R. Co. 785.75

      a 25 Cash. 43.25
    May 7, 100 shares Oil Creek & Alleg’y V. R. R. Co. 1,175.00
    “ 14, 20 “ Keystone National Bank 900.00
    July 12, Cash ....... 300.00
    Aug. 4, “ - 90.00
    Nov. 2, “ ...... 175.19
    Doc. 30, “ ..... 400.00
    1876.
    Jan. 19, Cash 500.00

      U <i u 60.00

      u Feb. 7, 500.00
    u 8> 283.00
    u April 1, 300.00

      ÍÍ “ 5, 100.00
    40 Shares Northern Saving Fund, S. D & T Co. 700.00
    Aug. 5, u 30.40
    May 2, u 300.00
    “ 16, a 130.00
    “ 22, u 200.00
    June 12, u 100.00
    “ 19, u 100.00
    “ 26, u 100.00
    “ The net proceeds of the sale of the said forty shares stock of the Northern Saving Fund Company was $598.00.

      “ The full amount thus paid and transferred to the defendants by the decedent, estimating the stocks as cash, at the prices at •which they were sold by the defendants, is $7024.96, in addition to that they took twenty shares Keystone Bank in the final settlement at $900; but it would not bring that amount then, or any time since, and has not been sold.
    “ That the defendants from time to time repaid to the plaintiff various sums of money amounting to $2695.92.
    “ That these transactions, taking them as a whole, resulted in a heavy loss to the plaintiff decedent,-and on the second day of August 1876, the defendants sold the last of the stocks held by them for plaintiff decedent, and closed the account, which showed an indebtedness from said decedent to defendants.
    “ That, except the sum of $2695.92, repaid to plaintiff decedent by defendants, as aforesaid, he never received anything from defendants on account of said transactions, and none of the stock purchased by defendants on his order was ever actually delivered to him, except on January 3d 1876. Five shares of Pennsylvania Railroad Company stock were transferred to J. A. Landis, and cost of same charged to plaintiff decedent; but all other stocks were retained by defendants as security for the purchase-money paid therefor, and all of the said stocks were sold by the order of said decedent during on or before August 1876.
    “ The decedent was a clerk at a salary of $500 a year, and had no estate or property except that, at the commencement of his operations with defendants he left, as collateral security for his transactions forty shares of the Philadelphia and Erie Railroad, standing in his name, of the value of $759.37, and fourteen (14) shares of the capital stock of the Philadelphia and Reading Railroad Co., standing in his name, of the value of $785.75; that said stock was sold by defendants and the proceeds lost in the aforesaid transactions, and at the time this suit was brought the decedent had no means out of which he could repay to defendants the money which they had paid him from time to time, nor did he acquire any means until the day of his death.
    “ The twenty shares Keystone Bank that decedent left as collateral was in his own name. The one hundred shares Oil Creek Railroad and the forty shares.Northern Saving Fund, Safe Deposit and Trust Company were both in the name of P. K. Landis.
    “On May 2d 1876, an account was opened in the name of decedent, in trust for P. K. Landis, and all the transactions in this account were entered by defendants in above name with the knowledge and consent of decedent, and at the close of their transactions the decedent acknowledged in writing his indebtedness jointly with P. K. Landis to the defendants in the sum of $655.29. A copy of this paper is as follows:

      “Philadelphia, August 4th 1876.
    “I have paid De Haven & Townsend twenty-eight j4070 dollars that, with the forty shares Northern Saving Fund, Safe Deposit and Trust Company at ($17.50), $17j5000 dollars per share, and twenty shares Keystone National Bank, at forty-five dollars ($45) per share, is in settlement of my individual indebtedness to De Haven & Townsend, and I do hereby acknowledge my joint individual liability with P. K. Landis for the balance of $655(oV
    (Signed,) “Joseph IIuchizky.
    “ That for the purposes of this case it is admitted that the fact that this account of the decedent was opened in trust for P. K. Landis, was unknown to the said Landis at the time it was opened, and while business was being carried on under it and until some time after the day of the date of the above-recited writing. That the account was so opened without any direction from the said Landis and without any consideration therefor moving from the said Landis or any one on his behalf, and he does not, and never did claim any benefit therefrom, or in any way acquiesce in, or accept the benefit of the act of decedent.
    “The charge to decedent on August 7th 1876, was for $200 loaned to him on January 7th 1876, and the payment of the same was guaranteed in writing by P. K. Landis; and the check given to said defendants for the same, with the endorsement of P. K. Landis, was given to decedent in the final settlement with him.
    “That plaintiff decedent died on or about March 17th 1878, and letters of administration on his estate were issued to Conrad An waiter on April 1st 1878.
    “ If the court be of the opinion that, on the above facts, their judgment should be for the plaintiff, then judgment is to be entered for plaintiff for $5229.04, and interest from August 1st 1876, but on the delivery to said plaintiff of twenty shares Keystone National Bank (formerly Keystone Bank), together with all dividends that have or may have been declared on the same between May 14th 1875, and the time when said stock shall be returned, the said judgment is to be reduced to $4329.04, with interest from above date; but if not, then judgment to be entered for the defendants; the costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon.”
    The following was the opinion of the court below delivered April 19th 1879, by Mitchell, J.: “The essential facts of this case stated may be briefly summed up to be; that the original plaintiff being an infant, employed defendants, who are stock brokers, to buy and sell stocks for his account; that defendants received from plaintiff considerable sums of money and shares of stock, which they applied to the purchases directed and made sales as directed, the proceeds of which they paid over to plaintiff; that after a large number of transactions plaintiff ceased giving orders, and tbe account was closed or liquidated, showing an indebtedness by plaintiff to the defendants. It also showed, however, that during the dealings plaintiff had paid to the defendants some $4300 more than he had received from them, thus making a loss to him of that amount, besides his debt to defendants. This sum he now seeks to recover back from the defendants, on the ground of his infancy and his right to avoid all the transactions referred to.
    “ The case does not expressly say when the plaintiff elected to disaffirm, but it must be presumed that it was after the liquidation of the account in August 1876, as the suit is not brought until March Term 1877.
    “ Upon this state of facts the defendants must be regarded as the agents of the plaintiff, dealing for him with the other parties to whom they sold, or from whom they bought stocks in the course of the transaction, but as to whom they assumed liabilities as if they were principals; and the question arises, can defendants now, after having assumed obligations towards others which they have discharged by the payment over of the money or the delivery of the stocks, be held answerable to rescind all these completed transactions as between themselves and plaintiff, and thus bear the loss of his speculations ?
    “ It is commonly .said that an infant cannot appoint an attorney or agent of any kind; indeed that is the one act which it is said is so absolutely void as to be incapable of affirmance. But that is said with reference to the acts of the agent set up as acts of the infant with regard to third persons. It is nowhere said that if an infant use the hand of another to do an act which he might do himself, the act shall not, as between the two, be deemed valid after it has been completely executed. And that is the present case. The defendants as brokers were ordered to buy stocks; they did so. Then they were ordered to sell, and they did so, and accounted to plaintiff for the proceeds. That was their whole duty, and, having performed it, their connection with the transactions ceased; they were mere conduits to pass money from the hands of plaintiff to those of the other principals in his contracts, and to hold them liable to make good his losses now, after the money has by his direction passed out of their hands, would be to establish a principle that would include every one who, however innocently or ministerially, passed the money of an infant towards its destination. Such a principle would be a shocking violation of natural justice, and be a dangerous conversion of the privilege of infancy from a shield to a swmrd. No case has been found, nor do we believe any exists, which sustains any such view of the law. Perhaps the most terse and pointed statement of the true rule on the privilege of infancy is to be found in the judgment of Lord Justice Turner, in Ex parte Taylor, 8 De G., M. & G. 254, ‘if an infant buys an article which is not a necessary, he cannot be compelled to pay for it; but if he does pay for it daring his minority, he cannot, on attaining his majority, recover the money back. ’
    “ It appears, however, from the case stated that the defendants have in their hands certain shares of stock of the Keystone National Bank, whoso value as between these parties has been liquidated at $900. This, it appears, is stock of plaintiff, put by him in the hands of defendants for certain purposes, but which has not yet left defendant’s possession and control. As to this stock, therefore, we think the transaction is not entirely executed, and the plaintiff’s privilege of rescission still exists.
    “ The case stated makes mention of one P. K. Landis, as having certain connections, in name at least, with some of the transactions, but we are unable to see that he has any rights of his own that are involved in this suit, or that the use of his name under the circumstances recited in the case stated in any way varies the rights of the parties thereto. We have, therefore, treated this case throughout as between Ruchizky and De Haven.
    “ Judgment is entered for the plaintiff' on the case stated for $900, with interest from August 1st 1876, with the right on the part of the defendants to pay it by the delivery of twenty shares of the stock of the Keystone National Bank, together with any dividends that may have been received therefrom between May 14th 1875, and the time of delivery.”
    Plaintiff thereupon took this writ, assigning for error the judgment of the court on the case stated.

      Rudolph M. Shick and Benjamin Harris Brewster, for plaintiff in error.
    As regards the contracts on margin the defendants were dealing with the plaintiff as principals and not as agents. The collateral deposited with them was intended for their own indemnity and not for a transfer to others. In any event a court of equity would have decreed return of collaterals so held and refuse a decree authorizing their sale, the pledgor being a minor: Smith v. Eisonlord, 2 Phila. 353; Edwards on Bailments (2d ed.)sect. 189. The defendants could not therefore by selling the collaterals better their position and make their contract with the minor other than ex-ecutory: Vent v. Osgood, 19 Pick. 572. Even if this contract be held to be executed, the minor is at liberty to rescind it and recover his property. In the present case the minor received nothing which he could tender to defendants. And the great weight of authority is to the effect that even where a minor has received consideration, in pursuance of an executed contract, he is at liberty to disaffirm the contract and recover his property without tender of the consideration received: Shaw v. Boyd, 5 S. & R. 309; Stoolfoos v. Jenkins, 12 Id. 399; Corpe v. Overton, 10 Bing. 252; Price v. Furman, 27 Vt. 268; Ewell’s L. C. Infancy 126; 1 Am. L. C. 320; Urban v. Grimes, 2 Grant 96; Williams et al. v. Baker, 21 P. F. Smith 476; Lenhart v. Ream, 24 Id. 59; Schrader v. Decker, 9 Barr 14; Abell v. Warren, 4 Vt. 149; Gibson v. Soper, 6 Gray 279; Chandler v. Simmons, 97 Mass. 508; Walsh v. Young, 110 Id. 396; Mustard v. Wohlford’s Heirs, 15 Gratt. 329. It is eminently proper, in view of the fact that this transaction was a mere gambling contract, and, as such, wholly opposed to public policy, to declare it entirely void, in which event the minor would undoubtedly be entitled to recover.

      Samuel Dickson, for defendants in error.
    The defendants below were stock brokers, and were employed by the plaintiff to buy and sell stocks for his account. As such contracts are made by brokers in their own names for an undisclosed principal they become liable, both according to the general commercial law and the special rules of the board of brokers, to the parties with whom they contract. It is to secure them against loss upon contracts which they thus make in behalf of their customer that a margin is placed in their hands by way of collateral security; but if the collateral security is made use of, as was the case here, it is in order to make good the contract with the other parties thereto. The brokers do not retain the cash themselves, they pay it over to the other principal or his broker. It was in this way that all of the cash and shares received from the plaintiff were used by the defendants.
    Defendants’ position as agents is also'established by the express terms of the ease stated. They “ acted as his (plaintiff’s) brokers.” The purchases and sales in question “ were made by them (defendants) for him (plaintiff).” The stock was “ purchased by defendants on his (plaintiff's) order.”- They were mere stakeholders paying over to others wagers in the shape of margins on plaintiff’s order. The contract being executed, the minor could not elect to disaffirm it to the prejudice of defendants: Ex parte Taylor, 8 De G., M. & G. 254; 2 Kent’s Com. 240; Reeves on Domestic Rel. 244; 1 Pars. on Con. 320, 322; Bartholomew v. Fennemore, 17 Barb. 428; Gray v. Lessington, 2 Bosw. 257; Strain v. Wright, 7 Ga. 568; Locke v. Smith, 41 N. H. 346; Bailey v. Barnberger, 11 B. Mon. 113; Cummings v. Powell. 8 Texas 80; Smith v. Evans, 5 Humphrey 70; Weed v. Beebe, 21 Vt. 495; Williams v. Norris, 2 Littell 157; Hill v. Anderson, 5 Sm. & M. 216; Edgerton v. Wolf, 6 Grey 453.
    The case stated nowhere avers that the contract was a mere gambling one. It appears therefrom that shares were actually bought and sold for and on account of Ruchizky. True, he may not have intended actually to receive and deliver them, but non constat that this was the case. In the absence of any statement to the effect that he did not, the court has no right to draw from the case stated any such inference: Thayer v. Society of United Brethren, 8 Harris 60; Pittsburgh, Fort Wayne & Chicago Railroad Co. v. Evans, 3 P. F. Smith 250; Loew v. Stocker, 11 Id. 347; Winchester v. Bennett, 4 Id. 510; Wilde v. Trainor, 9 Id. 439; Ferguson v. Wright, 11 Id. 258; Philadelphia & Reading Railroad Co. v. Waterman, 4 Id. 337; Berks County v. Pile, 6 Harris 493; Diehl v. Ihrie, 3 Whart. 148. A jury alone can say whether a stock transaction amounts to a gambling contract or not: Kirkpatrick v. Bonsall, 22 P. F. Smith 155; Grizewood v. Blane, 11 C. B. 526.
   Mr. Justice Gordon

delivered the opinion of the court, February 28th 1881.

When, under the case stated, the court below assumed the defendants must be regarded as the agents of Ruchizky in the buying and selling of stocks, in other words, as the mere hand or medium through which he acted in transactions with other parties, it committed an error. An assumption of this kind is in tho very face of the statement before us; the parties were dealing, not in stocks, but margins, and Ruchizky knew no principals but De Haven k Townsend. It was with íhem and no one else he was dealing, and with them alone he had to account. If any shares were bought, they were bought without the remotest intention of passing them to Ruchizky. The idleness of a supposition such as this is made manifest by the fact that the pretended stock purchases amounted to the sum of §472,419.55, on an advancement of §7024.96; nor could the credit of the decedent in this transaction have amounted to anything; for to start with, he was an infant, and therefore had no credit which could be made available in the money market; then again, he was but a clerk on a salary of §500 a year, and had no property of any kind, except that which, in the shape of money or stocks, went into the coffers of the defendants. But the case stated itself settles this matter, for by it we are informed that the several advancements made by the decedent were to be “ held and used by the defendants as collateral security to them, against loss by or on account of purchases or sales made by them for him.”

It is therefore certain that the money paid by Ruchizky was not merely passed by them, for him, to some third party with whom he was dealing, but was retained by them from first to last; first as collateral security, and last as margins, percentage, shaves, &c., which fell to them. Admittedly, then, this was a gambling contract, and, as has been ruled over and over again, twice so late as 8 Norris, in the cases of Fareira v. Gabell and North v. Phillips, transactions in stocks by way of margins, settlement of differences, and payment of the gain and loss, without the intention to deliver the stocks, are mere wagers, and cannot and will not be sustained. INow, if the parties had been sui juris, the contract having been fully executed, we would not interfere to help either party. But such is not the case; for, as we have said, Ruchizky was a minor, and hence was entitled to legal protection and guardianship. It is said they knew not that he was a minor ; but what does that matter? He was, nevertheless, an infant, and their want of knowledge did not make him sui juris.

The defendants have endeavored to interpose for their protection the doctrine that where an infant has executed a contract, and has enjoyed the benefit of it, and afterwards on coming of age seeks to avoid it, he must first restore the consideration which he received; that he cannot have the benefit of the one side without restoring the equivalent on the other. This rule may, and certainly does, apply in certain cases, but, as a general rule, it is unsound. Its application was refused in Shaw v. Boyd, 5 S. & R. 309, and, as was said by Mr. Justice Baylies, in Abell v. Warren, 4 Vt. 149: “If this be true, then the privilege of infants is not worth possessing.” But all this is foreign to the case in hand, for we have here a contract condemned by public policy — a contract that is not merely voidable but void ab initio. It follows that nothing can be imposed upon the infant as a condition of rescission; that is a result produced by legal policy, and nothing remains but to restore to the infant that which was unlawfully taken from him.

But more than this. Ruchizky got nothing from the defendants, either in the way of stocks or money; hence there was nothing to be restored; to him it was all loss and no gain; the defendants retained both stocks and money. It is therefore idle to talk about the refunding either by Ruchizky or his estate of that which,he never had. His money was paid, not for any species of property, but for a mere chance in the stock lottery. We repeat, therefore, there is nothing to be returned to the defendants; they lost nothing in this transaction, and hence can the more easily return to the plaintiff’s estate that which belongs to it.

The judgment is now reversed, and it is ordered that judgment be entered for the plaintiff in the sum of $5229.04, with interest from August 1st 1876, but on return forthwith, as provided in the case stated, to the plaintiff of twenty shares of the Keystone National Bank, said judgment shall be reduced to the sum of $4329.04, with interest as aforesaid, and. coste of suit.


author: Mr. Justice Mercur

text:
    Commonwealth ex rel. McGurk versus Superintendent of the County Prison.
    The Act of February 18th 1785, sect. 3, 2 Sm. L. 275, as modified by the Act of March 13th 1867, sect. 1, Pamph. L. 420, securing to any person, committed on the charge of crime a right of discharge 1'rom imprisonment, if he shall not have been indicted and tried upon the expiration of the fourth term after his commitment, was intended to apply only to the period of time intervening between the commitment and the first trial, and if such prisoner be tried, found guilty, upon application obtain a now trial, and is then kept in custody for more than four terms after the new trial is awarded, he cannot invoke the provisions of the said acts to secure a discharge from imprisonment.
    February 12th and 19th 1881.
    Before Sharswood, C. J., Merche, Gordon, Trunkey and Sterrett, JJ. Green, J., absent.
    Habeas corpus issued by the Supreme Court, on the petition of Theodore J. McGurk, commanding the superintendent of the Philadelphia county prison to produce the body of the relator, &c.
    The prisoner was indicted and tried in the Oyer and Terminer of Philadelphia county at the January Term 1880, and convicted of murder in the first degree. A rule for a new trial was made absolute by the court May 1st 1880, the last day of the April Term. Four monthly terms having elapsed at which courts of Oyer and Terminer had been held, viz., in May, June, September and October 1880, without the second trial taking place, and without any continuance having been granted or applied for at the prisoner’s request, the Court of Quarter Sessions, on petition of the prisoner, awarded a writ of habeas corpus, on the hearing of which, on October 29th 1880, it was contended that the prisoner was entitled to his discharge under the provisions of the Act of 1785, sect. 3, Purd. Dig. 755, 756, pi. 4. This act provides as follows: Sect. 3. “ If any person shall be committed for treason or felony * * * and if such prisoner shall not be indicted and tried the second term, sessions or court, after his or her commitment, unless delay happen on the application, or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from imprisonment.”
    Sect. 1, of the Act of March 13th 1867, Purd. Dig. 1201, provides that sessions of the Quarter Sessions and Oyer and Terminer shall commence on the first Monday of each month, instead of on the days theretofore fixed by law for holding the same; but sect. 4, of the same act, provides that nothing therein contained shall affect the Act of 1785, except that untried prisoners should be discharged upon the expiration of the fourth term instead of the second as theretofore.
    The court, on January 21st 1881, dismissed the writ of habeas corpus, and the relator was remanded to the county prison. Mitchell, J., delivered the following opinion:
    “ The object of the Act of 1785 was to prevent oppression of a prisoner in confinement by undue delay in bringing him to trial. Notwithstanding the general language of the act, it has been held that the provision for a discharge at the end of the second term does not apply where the trial ha.s been prevented by any circumstances of moral, physical, or legal necessity. Most of the exceptional cases which had then arisen (1875) are referred to in Commonwealth v. Brown, 32 Leg. Int. 430, and in Commonwealth v. Hale, 36 Id. 285. It was further held that where the prisoner had been a fugitive and had surrendered, he had put himself outside of the protection of the act, and could not now complain if the Commonwealth chose its own time to try him.
    “ The present case is new, but is strongly analogous to Commonwealth v. Hale. The Commonwealth did its whole duty in trying the prisoner at the proper time. The result was his conviction, and now that a new trial has been granted to him upon his own motion, and as matter of grace, it would be unreasonable to allow him to dictate when the Commonwealth shall be ready to try him the second time. Having aslced and received the favor of the court he must take it cum onere.

    “ It is not necessary to decide what would be the effect of a new trial granted by the same court for error in law, or a reversal of judgment by ihe Supreme Court, for the same reason. I have read carefully the opinion of Judge Elcock, and think it sets forth clearly that the new trial is granted solely as matter of grace and out of tenderness for the prisoner in a ease involving his life. The motion must be refused.”
    Thereupon the prisoner filed his petition in the Supreme Court for a writ of habeas corpus which was awarded. On the hearing, February 12th 1881, the Chief Justice stated that the court could not act unless the record of the Oyer and Terminer be brought up by certiorari, or unless the district attorney would admit all the facts stated in the prisoner’s petition. A certiorari was thereupon specially allowed, and the case continued.
    The record having been brought up, and it appearing thereby that the facts averred in the petition were true, the cause was argued February 19th 1881.

      Walter George Smith (with whom was Effingham B. Morris), for the relator.
    1. As to our right to the writ of habeas corpus. We invoke the original jurisdiction of the Supreme Court under Art. V., sect. 3, of the Constitution of 1874, which provides: “The Supreme Court * * * shall have original jurisdiction in cases * * * of habeas corpus,” &c. We also invoke the appellate jurisdiction, on the certiorari, by virtue of the provision in the same section of the Constitution, that “ They shall have appellate jurisdiction by appeal, certiorari, or writ of error, in all cases as is now or may hereafter be allowed by law.” The Act of March 3d 1860, § 33, Purd. Dig. 383, pl. 36, provides for the removal of the record from the Oyer and Terminer to the Supreme Court by certiorari; provided, the same shall be specially allowed by the Supreme Gourt. The jurisdiction has been recognised in Clark v. Commonwealth, 5 Casey 134, per Woodward, J.; Commonwealth ex rel. Torrey v. Ketner, 8 W. N. C. 133; Commonwealth v. Sheriff, 16 S. & R. 304; Commonwealth v. Jailer, 7 Watts 366; Ex parte Walton, 2 Whart. 501; Hurd on Habeas Corpus 350. A similar jurisdiction is exercised by the Supreme Court of the United States: Ex parte Lange, 18 Wall. 163.
    2. As to the relator’s right to be discharged. The court below based their refusal to grant our petition on the ground that the new trial was granted as matter of grace. We asked it as a matter of right, on the ground of error in law, in the rulings on evidence, and charge of the court. But even if granted purely as matter of grace, the prisoner is entitled to a speedy trial. The intention of the statute being to prevent undue imprisonment, its spirit is quite as applicable to a case which has been opened anew by the granting of a new trial, as to an imprisonment before the first trial. The granting a new trial placed the prisoner again in jeopardy of his life, and he stood, in the eye of the law, as though he had just been committed for trial: Hilliard on New Trials (2d ed.) 74; Edwards v. Edwards, 22 Ill. 121; Hidden v. Jordan, 28 Cal. 301; The State v. Commissioner, Riley 273.
    The following cases show that whenever the motion for a discharge has been refused, the refusal rested upon the ground either of manifest impossibility to try the case by the Commonwealth’s officers because of some obstacle over which they had no control, or else because of- acts done by the defendant which placed him outside of the relief contemplated by the act: Commonwealth v. Sheriff, 16 S. & R. 304; Respublica v. Arnold, 3 Yeates 263; Commonwealth v. Brown, 32 Leg. Int. 430; Clark v. Commonwealth, 5 Casey 134.
    The words of the act are both clear and mandatory. In the absence of ambiguity the argument ab inconvenienti has no weight. The act is intended not merely to provide against the malice of a prosecutor but against his negligence, in favor of the liberty of the citizen. The present case falls under none of the recognised exceptions, and the prisoner’s right to a discharge is complete.

      George S. Graham, district attorney, contra, presented no paper book.
    He argued, 1. That the Supreme Court has no jurisdiction. The Constitution of 1874, did not give a new jurisdiction, and previous to its adoption the court below had exclusive jurisdiction under the provisions of the Act of 1785. This court will not review, on the theory of original jurisdiction, a subject upon which the Oyer and Terminer has by statute full discretion. Numerous reasons might exist to prevent a trial below, which would not appear on the record, and of which this court would not be informed. In a similar application, the Supreme Court denied the motion, saying, “We must refer the defendants to the Court of Oyer and Terminer, who are best acquainted with the circumstances of the case:" Respublica v. Arnold, 3 Yeates 266.
    2. This act was passed to afford a prisoner a speedy trial — not a series of trials. The act provides that if the prisoner shall not be tried “at the second term after his or her commitment,” &c. The prisoner here was tried, and the act became functus officio. It would be dangerous to society to discharge, on so technical a point, a convicted murderer to whom the favor of a new trial has been granted. He could at any time apply to the Oyer and Terminer for a speedy trial, and the court would see that he was not unduly oppressed.
   Mr. Justice Mercur

delivered the opinion of the court, April 1st 1881.

This is an application of the relator to be discharged from im- . prisonrnent under the Habeas Corpus Act of 18th February 1785, re-enacted by sect. 54 of the Criminal Procedure Act of 1860.

If any person shall be committed for treason or felony or other indictable offence, it declares, inter alia, “if such prisoner shall not be indicted and tried the second term, sessions, or court after his or her commitment, unless the delay happen on the application, or with the assent of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment.” The relator was committed at August Term 1879, charged with murder, and a true bill therefor was found against him at the same term. He was tried at the January Term 1880, and found guilty of murder in the first degree. A motion for a new trial was made in his behalf, and a rule granted. On the last day of the April Term it was made absolute. On the last day of the October Term 1880, being the fourth term after new trial granted, the application for this discharge was made. At the January Term following it was refused.

It is contended in behalf of the relator that he was entitled to be discharged from imprisonment at the end of the second term, after the new trial was ordered, under the Act of 1785. This presents the only question in the case. No complaint is made of any undue delay prior to the trial and conviction. What, then, was the object of the act? It was to prevent wrongful restraints of liberty, caused by malice and procrastination of the prosecutor, producing a wilful and oppressive delay in the trial: Commonwealth v. Sheriff, 16 S. & R. 304; Same v. Jailer, 7 Watts 366; Clark v. Commonwealth, 5 Casey 134. The express language of the statute does not give this right of discharge in case “the delay happen on the application or with the assent of the defendant.” Thus either application or assent of the defendant to a postponement of the trial deprives him of his right. Nor need it appear that he expressly applied for or assented to the delay. His assent may be presumed from any action of his naturally tending to produce such result. Hence, if one under indictment induces the witnesses on the part of the Commonwealth to keep out of the way so that their attendance cannot be procured, he is not entitled to be discharged under the act, although two terms have intervened after his commitment: Respublica v. Arnold, 3 Yeates 263. So whore one under indictment moved at the second term to quash the indictment, and the court held the motion under advisement during the term, it was held that the delay was equivalent to a postponement with his consent, and that he was not entitled to be discharged under the act: Ex parte Walton, 2 Whart. 501. Where the array of grand jurors was quashed at two successive terms after the arrest of the prisoner, for informality in selecting and drawing them, he was not entitled to be discharged: Clark v. Commonwealth, supra.

The relator had a trial as soon after his commitment as he desired it, There is no allegation that the postponement thereof beyond the second term was not on his application or with his assent. Then the letter and the spirit of the law were fully complied with. There was no unjust delay. After due effect was thus given to all the provisions of the statute, the defendant intervened. He a§ked for and procured an order for a new trial. Having thus procured a new trial, which must necessarily be more than six terms after his commitment, he now' seeks to apply a statute which limits the time between commitment and the first trial to the interval of time after a new trial ordered and the second trial being had. We find no warrant for such application, either in the letter or in the spirit of the statute. It is further contended that, inasmuch as when a verdict is set aside or a judgment reversed and a new trial awarded, the case goes back upon all issues of fact, as if it had never been tried, therefore this statute is made applicable. Conceding the correctness of the rule as to the manner and form to be observed in the second trial, yet the conclusion claimed by no means follows. The interval of time between the commitment and the close of the second term thereafter cannot be retraced, nor the statute, which might then have been invoked, be made applicable to a second period of time commencing long after the expiration of the time specified in the statute.

This application is based on the statute alone. Beyond a denial of its provisions to the case, no arbitrary or unjust detention is alleged. We think, under the facts, the statute is not applicable. No other cause being shown for a discharge from imprisonment,

Prisoner remanded.


text:
    Wynn’s Administrator versus Wood et al.
    1. If one deliver money or personal property to another, under the promise of the latter to deliver it over to a third person who has a beneficial interest therein, or to convert it into money and pay him the proceeds, the third person can maintain an action therefor against the promissor.
    2. A fortiori is this the case where the person receiving the money or personalty subsequently promises the third party to deliver it to him.
    3. Where one firm receives the assets of another, agreeing-to pay the amount of the purchase-money, not into the hands of the vendors, but into the hands of their various creditors, according to the amount owing to each, this is not to be deemed an undertaking to pay the debt of another within the meaning of the Act for the Prevention of Frauds and Perjuries of April 26th 1855, sect. 1, Pamph. L. 308.
    4. If, in such case, the firm receiving the assets undertook to pay the debts of the old firm only to the extent of the proceeds of such assets, and not to pay a debt due from the old firm to themselves until all the other creditors were satisfied out of said proceeds, and then, having realized certain proceeds, applied part to their own use, some presumption would be raised which should be submitted to a jury that they had previously realized out of the assets a sum sufficient to pay all the other creditors.
    February 15th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1881, No. 7.
    Assumpsit, by Benjamin I. Wynn against Edward R. Wood, Ferdinand F. Sharp and J. Gardiner Haines, late trading as Wood, Sharp & Haines. The plaintiff sought to recover a debt due to him by the late firm of F. E. Sharp & Co., of which firm the defendants were the successors. The narr. contained a number of special counts, averring, in substance, that the defendants became liable to the plaintiff, directly, for the debt due him by E. F. Sharp & Oo., by their promise and agreement with the latter that, in consideration of receiving the assets of the old firm, they, the new firm, assumed the liabilities of the old firm, including their debt to the plaintiff.
    On the trial the plaintiff’s evidence was substantially as follows: Prior to the 19th of February 1873, the firm of E. F. Sharp & Oo., which consisted of Ferdinand F. Sharp and Isaac Sharpless, were engaged in the business of manufacturing and selling window glass. They had an office and stor.e in Philadelphia, and a large glass fac-. tory and store at Millville, N. J. The plaintiff was their general manager at the factory. On February 19th 1873, the firm were indebted to him in several thousand dollars for salary and on other accounts. On that date a new partnership was formed -between the above-mentioned defendants, which firm bought out the business and assets of the old firm at an appraisement of $114,000. The plaintiff gave in evidence the defendants’ articles of copartnership, which contained the following recital:
    “ Whereas, the said Sharp was lately senior partner of the firm of F. F. Sharp & Co., doing business in Philadelphia: And whereas, the said firm became involved in business difficulties so as to create alarm in the minds of his creditors, but the said Sharp believed the entire solvency of his said firm, provided sufficient time were afforded to collect its assets, and did. so represent tó said Wood and Haines; and they, putting confidence in these representations, and desiring to assist him in the prosecution of his business, and in the payment of the debts of his said firm, did agree to purchase from them, F. F. Sharp & Co., all their stock in trade, good-will, fixtures and book accounts, at the full market value thereof, as by reference to the proper bills of sale will more fully appear, and to pay for the property purchased by distributing tike purchase-money among the creditors of F. F. Sharp Qo. until the said creditors are satisfied,, supposing the purchase-money to go so far; and to pay the surplus, if any should be found after satisfying the creditors, over to F. F. Sharp and his partner, namely, Isaac Sharpless.” The plaintiff also put in evidence the following bill of sale :
    Philadelphia, February 20th, 1878.
    Wood, Sharp & Haines.
    Bought of F. F. Sharp & Co.
    Terms : 6 months ; 9 months ; -§- 12 months.
    Unused books, fixtures, stock in trade at Philadelphia and at Millville factories, at the valuation of January 1st, 1878, ...... $71,381 00
    Less per over-valuation, ..... 5,381 00
    $66,000 09
    Debtor accounts on books to date, valued at . . 48,000 00
    $114,000 00
    And also the following letter:
    Philadelphia, March 24th, 1873.
    Messrs. J. C. Stowell & Son.
    Dear Sirs. — In answer to yours of the 20th inst, to Messrs. F. F. Sharp & Co., we regret to have to sa,y, owing to their assets not being as represented by $14,000, it will be impossible for them to pay more than 80 cents, the present firm who are managing the business in behalf of the creditors not being willing to endorse for more than 80 cents. Mr. Sharp agrees to give his paper for the balance, with interest, for 18 months or two years. The 80 cents . will be for 6, 9 and 12 months, dating from January 15th.
    The two members, Wood and Haines, of the new firm, are the heaviest creditors, to the amount of $50,000, and hence will not allow any one creditor to have any advantage over another.
    Yours truly,
    Wood, Sharp & Haines.
    Will forward you the paper in a few days.
    The testimony of witnesses on behalf of the plaintiff, was to the effect, that, the original agreement, whereby the defendants promised F. F. Sharp & Co. to buy them out for $114,000, and instead of paying F. F. Sharp & Co., to pay the creditors of F. F. Sharp & Co. was verbal; that the defendants had actually paid a large number of the creditors of F. F. Sharp & Co., at least eighty per cent, of their claims; that both Sharp and Wood, as members of the new firm, had admitted the correctness of the plaintiff’s demand, and had promised verbally to pay it; that the defendant Wood, said to the plaintiff, “ Make out your account and I will see that it is paid; I will pay it; you ought not to take eighty per eent.; you are entitled to all of itand that the plaintiff made out the account and sent it to Wood, but it was not paid. Further, that the defendants had paid the sum of $17,000 to the members of F. F. Sharp & Co., viz., to F. F. Sharp, $12,000, and to Isaac Sharpless, $5000.
    At the close of the plaintiff’s evidence, the court, on motion of the defendants, granted a nonsuit, and the court in banc subsequently discharged a rule to take it off.
    The plaintiff died after the trial, and his administrator was substituted ; he took his writ of error, assigning for error the refusal of the court to take off the nonsuit. .

      John Scollay, for the plaintiff in error.
    There was ample evidence to be submitted to the jury of an agreement and promise, on the part of the defendants to pay the purchase-money for their purchase from F. F. Sharp & Co., to the creditors of the old firm. The nonsuit was entered on the grounds that the plaintiff was a stranger to the consideration, and could not maintain an action against the defendants in his own name; and because the j>romise being by parol to pay the debt of another was within the Statute -of Frauds. But the defendants’ promise was not to pay the debt of another, but was to pay the purchase-money, due by them, to third parties, viz., the creditors of the old firm, of whom the plaintiff was one. It was thus their own debt which the defendants agreed to pay to parties nominated by their vendors. The vendors and vendees agreed to substitute one payee for another. They had the right to do this, and the person for whose benefit the contract was made, may maintain his action against the person who has taken the property of and agreed to substitute himself for the original debtor. Such an agreement is not within the Statute of Frauds. It need not be in writing, and is valid though made without the knowledge of the creditor to be benefited by it. The latter becomes the owner of the fund thus impressed with a trust for him and can sue for it in his own name: Justice v. Tallman, 5 Norris 147; Townsend v. Long, 27 P. F. Smith 143; Taylor v. Preston, 29 Id. 436.

      Samuel S. Hollingsworth, for the defendant in error.
    If the contract sued on is a contract to take the assets of F. F. Sharp & Co., and pay the creditors of that firm 80 per cent, of their claims absolutely, then the defendants are liable only to the parties, and at the suit of the parties with whom they made such agreement. And if this be the contract, any action upon it is barred by the Statute of Frauds, because it is not in writing: Blymire v. Boistle, 6 Watts 182; Ramsdale v. Horton, 3 Barr 330; Finney v. Finney, 4 Harris 380; Campbell v. Lacock, 4 Wright 448; Robertson v. Reed, 11 Id. 115; Kountz v. Holthouse, 4 Norris 235; Guthrie v. Kerr, Id. 303; Knap v. Duncan, 8 W. N. C. 514; Shoemaker v. King, 4 Wright 107; Maule v. Bucknell, 14 Id. 39. If the contract was to take the assets of the old firm and distribute them, or their proceeds among the old firm’s creditors, then it was a trust fund in the hands of the defendants, and the cestui que trust — the creditor of the firm — cannot sue in assumpsit to recover his debt; his remedy is to file a bill in equity for himself and other creditors to have an account of the administration of the trust; Vandakin v. Soper, 2 Am. Lead. Cas. 175; Reeside v. Reeside, 13 Wright 322; Millard v. Baldwin, 3 Gray 484; Clapp v. Lawton, 31 Conn. 95.
   Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

The court thought the evidence of the plaintiff' insufficient to submit to the jury. It therefore ordered a compulsory nonsuit, and refused to take it off. This presents the alleged error.

The defendants, Wood, Sharp & Haines, are copartners in the business of manufacturing and selling window glass and in selling oils and paints. They are the successors of the firm of F. F. Sharp & Co. This original firm was indebted to the plaintiff before and at the time of the transfer to the defendants. It transferred all its stock in trade, good-will, fixtures and book accounts to the defendants.

The contention is whether the terms of transfer, and subsequent transactions, gave the plaintiff a legal right of action against the defendants to collect the debt due him, or any part thereof.

It is true, as a general rule, an action on a contract must bo in the name of the party holding the legal interest therein ; yet this is not invariably so. In many cases, a third person may maintain an action on a promise made to another. Hence, if one deliver money or personal property to another under the promise of the latter to deliver it over to a third person who has a beneficial interest therein, or to convert it into money and pay him the pro ceeds, the third person can maintain an action therefor against the promisor: Hind v. Holdship, 2 Watts 104; Beers v. Robinson, 9 Barr 229; Vincent v. Watson, 6 Harris 96; Bellas v. Fagely, 7 Id. 273; Torrens v. Campbell, 24 P. F. Smith 470; Townsend v. Long, 27 Id. 143; Kountz v. Holthouse, 4 Norris 235; Justice v. Tallman, 5 Id. 147.

What, then, was the evidence ? As it stood uneontradicted, was it sufficient for the jury to have passed upon it ?

All the terms and conditions of the bargain were not reduced to writing at the time the defendants acquired the property of F. F. Sharp & Co. The terms are proved partly by parol and partly by an instrument in writing executed about the same time by the defendants between themselves.

F. F. Sharp was one of the previous firm, and became one of the new, or defendants’, firm. He testified, inter alia, that the defendants’ firm did receive assets from F. F. Sharp & Co., amounting to about $114,000, and was to pay 80 per cent, of the liabilities of the firm of F. F. Sharp & Co., and the indebtedness due the plaintiff was among the liabilities thus assumed by the defendants. The written articles of copartnership between the defendants recites : Whereas, said firm “did agree to purchase from them, F. F. Sharp & Co., all their stock in trade, good-will, fixtures and book accounts at the full market value thereof, as by reference to the proper bills of sale will more fully appear, and to pay for the property purchased by distributing the purchase-money among the creditors of F. F. Sharp & Co. until the said creditors are satisfied, supposing the purchase-money to go so far, and to pay the surplus, if any should be found after satisfying the creditors, over to F. F. Sharp and his partner, Isaac Sharpless.” This agreement of co-partnership further stipulated that “ Wood shall have general supervision of the business.”

The evidence of Wynn, the plaintiff, taken in his lifetime, is that he was in the employ of F. F. Shar-p & Co..at the time the property was transferred to the defendants, on the 20th of February 1873. The defendants reported to him that they took the assets' of F. F. Sharp & Co., and assumed their liabilities to the extent of j 80 per cent. He further testified that, after the transfer to the defendants, Wood promised to pay him the amount due if he would make out the amount and give it to him; that he made it out and gave it to him. Wood said to him he ought not to take 80 per cent., but was entitled to all of it; that he would pay it. Haines had previously urged him to make out the account and send it to Wood; that he had promised to pay it if plaintiff would make it out; that Sharp, while a member of the firm, told him that Wood had the account, and promised to pay him. F. F. Sharp, one of the defendants, also testified, “ I did promise Wynn, the plaintiff, that Wood, Sharp & Haines would pay him for the services he rendered the preceding firm.”

It is unnecessary to refer to more of the evidence in detail. As already shown, the defendants made no payment at the time they took possession of the property valued at $114,000. The evidence of F. F. Sharp leaves it uncertain precisely what sum the defendants should pay, and whether that sum was not to be guaged by, and paid out of, the sum realized out of the property taken by them. Their own written averment is that they were not to pay F. F. Sharp & Co. anything until the creditors were satisfied, if the purchase-money was sufficient for that purpose.

If the contract of the defendants was one of purchase, their agreement was not to pay the debt of another, but to pay their own debt incurred in the purchase of the property ; and perhaps a jury might find that the extent of their obligation to pay was to be limited to the application of the proceeds of the property of which they took possession. The evidence shows the defendants carried on the business for a short time. They collected the accounts assigned to them, so far as they were collectable, and applied some of the proceeds to their own use. They also paid most of the creditors of their predecessors. Still further, they paid $12,000 to Sharp, who was a member of both firms, and $5000 to Sharpless, the other member of the firm of F. F. Sharp & Co. As they were not to be paid anything until the creditors were satisfied, this fact might create some presumption that the defendants had previously realized out of the assets a sttm sufficient to pay all the creditors. This might have an important bearing in arriving at the true character of the transaction. We think the evidence is amply sufficient to have been submitted to the jury under proper instructions.

Objection was made on the argument that the evidence was not admissible under the narr. Inasmuch, however, as no objection appears to have been taken to its admission when offered, wo will now consider it as properly received.

Judgment reversed, and a venire facias de novo awarded.