text:
    Yarnall’s Appeal.
    1. Mrs. Ellis gave the residue of her estate to Yarnall in trust for the use of all her children living at her death and the issue of such as might be then dead in equal parts, &c., the income of the shares of her sons to be applied to their use during minority, and paid to them as they arrived at age. The trustee to hold the shares of the daughters and pay the income during their lives, free from the debts, &c., “ of any husband they may have or take,” after their death to pay the daughters’ shares according to their wills; in default of a will the trustee to grant, pay, &c., the daughters’ shares to “ such person or persons as would be entitled to the same in case they had survived their respective husbands and departed this life intestate seised thereof in fee.” The daughters having attained full age and being unmarried: jHeld, that they took an absolute estate in fee.
    2. The trust for their separate use fell, there being no coverture when the will took effect and none in contemplation.
    3. Form of words importing an active trust does not sustain it, if its purr pose should fail.
    4. Where the testator intends the estate to go to the whole body of per- I sons constituting in law the entire descent lineal, he means “ issue” or “ heirs of the body.”
    5. If-the testator intends the estate to go to the whole line of descent lineal and collateral, he means “ heirs.”
    6. Technical phrases in wills, as well as forms of expression in other cases, ' will not overturn the intent clearly ascertained to be different in a will under examination.
    7. The rule in Shelley’s Case is not a real exception to the rule that the intention of the testator must guide in interpreting a will; it sacrifices a particular to a general intent.
    8. The rule in Shelley’s Case does not interpret a will; it takes effect when the interpretation has been ascertained.
    9. “ Heirs,” “heirs of the body,” “Issue,” “children,” “sons,” and similar expressions are words of limitation or purchase according to the intent of the testator in each particular will.
    • 10. When an estate for life is given with a general power of appointment and on failure to appoint, to children or special heirs, the power will not enlarge the estate to a fee or fee tail, and the children or special heirs will take by purchase..
    11. A power to appoint will not cut down an estate of inheritance.
    12. When a remainder, on failure to appoint, is devised to the heirs of the life-tenant, the inheritance will pass to the life-tenant.

      January 9th 1872.
    Before Thompson, C. J., Agnew and SnARSWOOD, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia: Of January Term 1871, No. 91.'
    The question in this case was the proper construction of the will of Hannah Ellis, deceased.
    Sarah Byrnes, by a codicil, dated January 17th 1855, to her will, made the following provision :—
    “And it- is my will ■ that "after the decease of my granddaughter Hannah A. Ellis, the estate given, devised and bequeathed in my said will in trust for her use during her natural life with remainder over shall, after the decease of the said Hannah A. Ellis, vest absolutely in such person or persons, and for such estates as my said granddaughter, by her last will and testament, or any instrument in the nature thereof, notwithstanding any coverture, may direct, limit and appoint. And for want of any such will or instrument in the nature thereof, then I do give, devise and bequeath the said estate to such person or persons (and for such estates and in such shares and proportions) as would be entitled to the same under the intestate laws of Pennsylvania, in case my said granddaughter should depart this life intestate, seised of the same absolutely and in fee simple.”
    Hannah Ellis, by her will dated July 21st 1855, recited the foregoing clause of the will of Mrs. Byrnes, and proceeded:
    “ Now be it remembered that I, the said Hannah A. Ellis, &c., by virtue of the power and authority given and granted unto me, in and by the above-recited codicil, and of all other powers and authorities me in anywise enabling, do make my last will and testament in manner following, that is to say, 1st, I give and bequeath the sum of thirty thousand dollars of the estate so given, devised and bequeathed by the said Sarah Byrnes as aforesaid, unto my beloved husband, William Ellis, for his own absolute use and benefit. Item: All the rest, residue and remainder of the said estate, and all other estate, real and personal, whatsoever and wheresoever I may die seised, possessed or entitled to, I give, devise and bequeath unto my friend Ellis Yarnall, of the city of Philadelphia, in trust for the only proper benefit, use and behoof of all my children that may be living at the time of my decease, and the lawful issue of such of them as may then be deceased, in equal parts and shares as hereinafter directed and set forth; such issue taking and receiving, however, such part and share only as his, her or their deceased parents would have taken and received if then living. I direct that the interest and income of the share or shares of any son or sons I may leave me surviving, be applied by the said trustee to his or their proper use and benefit during his or their minority, and the said share or shares be paid to my said son or sons, as he or they shall severally attain the..age of twenty-one years. And the parts and shares of my daughters, who may then be living at the time of my decease, I direct said trustee to hold in trust to pay the interest and income thereof to my said daughters during their respective natural lives, free from the debts, control or engagements of any husband they may have or take; and after the decease of my said daughters I direct my said trustee to grant, assign and pay the said shares of my said daughters, of and in my said estate, to such person or persons, in such proportions and for such estates and interests as my said daughters, by any instrument of writing in the nature of a last will and testament, may respectively direct, limit and-appoint. And for want of such direction, limitation or appointment, then I direct the said trustee to grant, assign and pay the same to such person or persons as would be entitled to the same, in case they, my said daughters, had survived their respective husbands and departed this life intestate seised thereof in fee.”
    Mrs. Ellis died in December 1857, leaving two daughters, Sarah B. Ellis and Frances L. Ellis, and a son, William L. Ellis; the daughters being at that time of the ages of thirteen and eleven years respectively.
    In 1869, Yarnall, the trustee, having settled his account, the two daughters, who had then arrived at age and were unmarried, petitioned the Orphans’ Court to decree that the trustee “ do transfer, convey, deliver and pay over to your petitioners their respective shares of the said estate,' both principal and rents, interest, income and profits as aforesaid due and collected thereon, as their absolute property.”
    The trustee answered, alleging amongst other things, “ that the trust under the will of the said Hannah A. Ellis is, as he is advised, an active trust, requiring a trustee in order to carry out the provisions of her said will, and that the corpus or principal of the estate cannot be paid to the petitioners.”
    The matter was referred to William L. Dennis, Esq., as auditor, who in an elaborate and well considered report, decided: “ that there remains no active trust under the will, and that the petitioners are entitled to the legal estate, — that is, to two-thirds of the trust estateand a conveyance of this estate should be made to them by the trustee.”
    The Orphans’ Court confirmed the report of the auditor, and ordered the trustee to deliver, &c., to the petitioners their shares of the estate, &c.
    Ellis Yarnall appealed to the Supreme Court from the decree of the Orphans’ Court, and assigned the decree for error.

      E. Hopper, for appellant.
    The intention of the testatrix is expressed to give her sons an absolute estate; to her daughters the bequest is for their “ natural lives;" the intention therefore is to give them a different estate, which could be but for life. He cited Dodson v. Ball, 10 P. F. Smith 492; Ralston v. Waln, 8 Wright 279.

      W. W. Wiltbank, for appellee.
    The legatees not being covert nor in contemplation of marriage, the bequest is invalid as a separate estate: Wells v. McCall, 14 P. F. Smith 207; Koenig’s Appeal, 7 Id. 352; Freyvogle v. Hughes, 6 Id. 228; Nice’s Appeal, 14 Wright 143; McBride v. Smyth, 4 P. F. Smith 245; Dodson v. Ball, 10 Id. 492; Steacy v. Rice, 3 Casey 75; Megargee v. Naglee, 14 P. F. Smith 216. The part of the clause which provides for a conveyance by the trustee after death of the daughters must be disregarded, inasmuch as it does not create an active trust: Bacon’s Appeal, 7 P. F. Smith 504; Rife v. Geyer, 9 Id. 393; Dodson v. Ball, 10 Id. 492; Nice’s Appeal, 14 Wright 143. A gift to heirs according to the intestate laws contemplates a gift to all heirs known to the law: Physick’s Appeal, 14 Wright 128.
   The opinion of the court was delivered, May 13th 1872, by

Agnew, J.

The estate in question came to Mrs. Hannah A. Ellis under the will of Mrs. Sarah Byrnes, her grandmother. Mrs. Byrnes devised and bequeathed it to Mrs. Ellis for life, with a power of appointment by will; and on failure to appoint with remainder to the same persons who would take it under the intestate law, if Mrs. Ellis had the absolute estate. Mrs. Ellis by her will devised and bequeathed the estate thus devised to Ellis Yarnall in trust for all her children living at her decease, and the issue of those then dead, the issue taking the shares their deceased parents would have taken if living. As to the parts and shares of her daughters living at her death, Mrs. Ellis directed the trustee to hold the same in trust to pay the interest and income thereof to her s-aid daughters during their natural lives, free from the debts, contracts and engagements of any husband they might have or take. This was followed by a power of appointment by will given to the daughters. The will then proceeds: “ And for want of such direction, limitation or appointment, then I direct said trustee to grant, assign and pay the same to such person or persons as would be entitled to the same in case they, my said daughters, had survived their respective husbands, and departed this life intestate, seised ■thereof in fee.”

In the court below the auditor held that the trust for the separate use fell, the daughters being only eleven and thirteen years ■of age in 1857 when Mrs. Ellis died, and being still unmarried in 1869, when they presented their petition in this case. He held ■also that the .daughters took a fee under the will. The report was •confirmed by the court. So far as regards the separate y,se, the conclusion that the trust fell is amply sustained by authority, there being no coverture when the will took effect, and no marriage in immediate contemplation: Dodson v. Ball, 10 P. F. Smith 496-7; Freyvogle v. Hughes, 6 Id. 228; Koenig’s Appeal, 7 Id. 352; Rife v. Greyer, 9 Id. 393; Megargee v. Naglee, 14 Id. 216.

But whether the trust fell altogether depends upon other considerations — whether there were other grounds to sustain it. It is clear that as to the daughters the corpus of the estate vested in the trustee, and he was to pay over the interest and income to the daughters of Mrs. Ellis during life. If, therefore, the daughters took a life estate and no more, and the trust was required to protect the remainders, the language of the trust to pay over the interest and income only would import an active trust, and it would not fall. But if the daughters took estates in fee in the realty, or absolute in the personalty, the trust would be active only during the existence of the separate estates provided for in the will, and when they fell the trust would fall also, there being no beneficial purpose to sustain it. The mere form of words importing an active trust does not sustain the trust if the purpose of its creation should fail: Koenig’s Appeal, supra; Rife v. Greyer, supra; Megargee v. Naglee, supra; Ogden and wife v. Evans, decided at this term. (Postea, p. 501.)

The real question upon this will is, whether the language of the remainder over on a failure to appoint imports the same thing, according to the true and actual intent of the testatrix as a devise to the heirs of the daughters. If so, the life estate and remainder would coalesce, by reason of that intent, and the daughters would fake absolute estates. It cannot be doubted that the testatrix had in her mind the whole line of descent according to law, when she directed the estate to go to such person or persons as would be entitled to the same in case her said daughters had survived their respective husbands and departed this life intestate seised thereof in fee. The daughters were then not married, and had neither husband nor children, and yet the testatrix evidently contemplated their marriage. Who would be the person or persons to take the inheritance was entirely unknown, and would not be known till the death of the daughters, yet as he or they were to take as if the daughters died seised in fee and intestate, none but the heirs at law could be intended, and none being specially designated, the whole would be necessarily included : See Dodson v. Ball, 10 P. F. Smith 497, and cases therein cited. The principle of these cases is one of interpretation only, not a rule of law, for those instruments which do not fall within the strict rule of law requiring the use of the word “ heirs” to create an estate of inheritance. In wills and mere trusts the intention to vest the estate in the heirs at law of the life tenant may be inferred from other terms: Fearne on Remainders 145*; Haldeman v. Haldeman, 4 Wright 29; McBride v. Smyth, 4 P. F. Smith 245; Freyvogle v. Hughes, 6 Id. 228; Dodson v. Ball, supra. Where a testator intends the estate to go to the whole body of persons in legal succession constituting in law the entire line of descent lineal, he evidently means the same thing as if he had said “issue” or “heirs of the body;” or if.he intends it to go to the whole line of descent, lineal and collateral, he means the same thing as if he had used the term “heirs,” which as a word of art describes precisely the same line of descent.

In regard to wills the cases show that technical phrases, as well as forms of expression decided in other cases, are not permitted to overturn the intent of the testator, when that intent is clearly ascertained to be different in the will under examination by the court. This broad principle needs no citation to support it, for it is founded on the universal rule, that- the intention of the testator is the guide for the interpretation of wills. The rule in Shelley’s Case is only an apparent not a real exception to this statement. It sacrifices a particular intent only to give effect to the main intent of the testator. All the authorities agree that this rule has no place in the interpretation of a will, and takes effect only when t'he interpretation has been first ascertained. Mr. Fearne, in his work on Contingent Remainders, p. *188, says, “ Nothing can be better founded than Mr. Hargraves’ doctrine, that the rule in Shelley’s Case is no medium for finding out the intention of the testator; that on the contrary, the rule supposes the intention already discovered, and to be a superadded succession to the heirs, general or special, of the donee for life, by making such donee the ancestor terminus or stirps, from which the wholé generation or posterity of heirs is to be accounted; and that whether the conveyance has or has not so constituted an estate of freehold, with a succession engrafted on it, is a previous question, which ought to be adjusted before the rule is thought of; that to resolve that point, the ordinary rules from interpreting the language of wills ought to be resorted to; that when it is once settled, that the donor or testator has used words of inheritance according to their legal import, has applied them intentionally to comprise the whole line of heirs, of the tenant for life, and has really made him the terminus or ancestor, by reference to whom the succession is to be regulated, then comes the proper time to inspect the rule in Shelley’s Case.” In Hileman v. Bouslaugh, 1 Harris 351-2, C. J. Gibson expresses the same thought in fewer words. He says, “ the rule operates only on the intention of the testator when it has been ascertained, not .on the meaning of the words used to express it. The ascertainment is left to the ordinary rules of construction peculiar to wills, but when this is ascertained — is found to be within the rule — then there is but one way: it admits of no exceptions.”

I cite these expressions, not for the purpose of applying the rule in Shelley’s Case, strictly so called, to this case; but to show that the intent of the testator, as discovered from his will, is the true and only guide to its interpretation before the law will declare its effect, and as explanatory of the contrariety of decision upon different wills in the use of the words “heirs,” “heirs of the body,” “issue,” “children,” “sons,” and similar expressions. Each has been held to be a word of limitation, or a word of purchase, as' the intent of the testator in the particular will has been found to warrant it. Many of these contrarieties will be found in the cases noticed in the opinions in Coursey v. Davis, 10 Wright 25, and Powell v. Domestic Missions Board, 13 Wright 46. See also Smith on Ex. Int., chapter 13; Cote v. Von Bonnhorst, 5 Wright 243.

As most pertinent to the present will, I may refer to those cases in which the word “ child or children” has been held to be a word of limitation creating an estate tail in the life-tenant by analogy to the rule Shelley’s Case: Wild’s Case, 6 Coke 17; Davie v. Stephens, Doug. 321 (306); Hodges v. Middleton, Id. 431 (415); Seall v. Baxter, 2 Bos. & Pull. 485; Wood v. Baron, 1 East 259; Shoemaker v. Huffnagle, 4 W. & S. 437; Potts’s Appeal, 6 Casey 168; Cote v. Von Bonnhorst, supra; McKee v. McKinley, 9 Casey 92. Perhaps the strongest case in this state, as a test of the rule of interpretation of the word “ child,’’ or “ children,” is Haldeman v. Haldeman, 4 Wright 29. It is important also, as the opinion came from the same judge who wrote Guthrie’s Appeal, 1 Wright 9, the converse of Haldeman v. Haldeman, and therefore displays the rule of interpretation of wills by actual intent in a strong light. The devise to the daughters there, was: “ To each of them during their natural lives the income or profit ai-ising out of each of their shares of the residue, and after the death of either of them, to descend and go to the child, and if children, share and share alike. Should either of my daughters, Sarah, Mary, or Susan die, and leave no lawful issue, then such share or portion is to fall back again to the residue, and form part of the same.” Remarking on this devise, Judge Strong said: “ Now, if the will be examined, it seems quite plain that the testator employed the words ‘child,’ ‘children’ and ‘issue’ indiscriminately, and all of them as meaning an entire line of lineal descent.” Again, referring to the general rule making such expressions words of purchase, he says : “ It is never applied when the word ‘ children ’ is evidently intended to define an entire line of succession.” His conclusion was, that Susan took a fee tail, enlarged by the Act of 1855 into a fee simple.

With these decisions before us, the rule laid down by Judge Oswald Thompson, in Potts’s Appeal, 6 Casey 170, and adopted by this court, seems fairly to have its foundation both in reason and authority, viz.: That “ any form of words sufficient to show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate for life of the first taker to an estate tail by implication.” The same rule in substance was stated in Price v. Taylor, 4 Casey 95, in these words: “ If, therefore, the remainder is to persons standing in the relation of general or special heirs of the tenant for life, the law presumes that they take as heirs, unless it unequivocally appears that individuals other than persons who are to take simply as heirs are intended.” This rule was adopted in Dodson v. Ball, 10 P. F. Smith 493, and the cases illustrating it were cited and commented on. As some of these cases have been doubted or overruled in relation to the application of the rule to the terms of the instrument in which the gift or devise was made, as well as some in other respects (for instance Price v. Taylor), care was taken in Dodson v. Ball to restrict their authority simply to the statement of the rule itself. That rule was stated thus: “That whenever the terms of the limitation can be fairly and justly interpreted to mean ‘ heirs ’ or ‘ heirs of the body,’ an estate of inheritance will be presumed to have been intended by the testator.” To these may be added as illustrative, Maurer v. Marshall, 4 Harris 377 ; Vaughan v. Dickens, 8 Harris 509; Braden v. Cannon, 12 Harris 168; Rancel v. Creswell, 6 Casey 158.

There is another rule of interpretation perhaps equally well settled, that when an estate for life only is given, followed by a general power of appointment, and on failure to appoint to children or to special heirs, the power to appoint will not enlarge the estate of the life-tenant to a fee or fee tail, and the children or special heirs, as they are termed, take hy purchase and not by descent. The authorities for this rule will be found in Dodson v. Ball, 10 P. F. Smith 497. But though the power to appoint does not enlarge the life estate, it will clearly not cut down an estate of inheritance intended by the testator, as drawn from his entire will. Hence, when the testator devises the remainder on a failure to appoint, to the heirs of the life-tenant, or by words which mean the same thing, the inheritance will pass to the life-tenant.This is the necessary result of the rule to be guided by the actual intent of the testator. Now if the body of persons thus described constitute in fact the heirs of the life-tenant, and represent only a line of descent, and not specially designated persons, the devisee for life becomes the stock or source of the descent, and by analogy to the rule in Shelley’s Case, or perhaps it is better to say, from necessity, he takes the inheritance.. The remainder being limited to his heirs, he necessarily becomes the stirps or root of a line of unknown persons, not individuated by the will, yet dependent on him as their source. They spring into recognition only at his death, for nemo est hares viventis. In other words, they come at the bidding of the law, and not of the testator, who merely adopts them as the law turns them up in the furrow of descent. He who might have appeared to be the heir at the date of the will, by marriage, birth or death, may not be heir when the will takes effect. In the very logic of the succession, the life estate, therefore, incorporates with the inheritance, because of the failure of the testator to designate any other than the legal line of descent. In short, he calls the devisee a tenant for life, yet vests the fee in him. This being the intent of the testator, it is immaterial in the will, whether he describes the line of descent by a word of art, or by a periphrasis, meaning the same thing. I have used the expression, “by analogy to the rule in Shelley’s Case,” to avoid misapprehension. As stated by Mr. Smith, Ex. Int., ehap. 13, sect. 1, the rule strictly is confined to those cases where the instrument uses the word “heirs,” or “heirs of the body.” But he admits of what he calls a “ translation of that rule into terms of a different and more extensive character, embracing cases where the words ‘issue,’ ‘children,’ ‘sons’ and ‘daughters,’ have been used instead of the word heirs,’ ” § 397.

It is argued in this case that the exclusion of the husbands of the daughters in the remainder clause, narrows the line of descent. But clearly this does not change the intent of the testatrix in this will, for it must be remembered that there were no husbands in existence, and that this so-called exclusion is an expression corresponding with the intent of the testatrix, which was to give the daughters separate estates, the effect of which would-be to exclude the husbands: Cochran v. O’Hern, 4 W. & S. 95; Stokes v. McKibben, 1 Harris 267; Rigler v. Cloud, 2 Harris 361. The exclusion of the husbands in the terms of the remainder is therefore consistent with the intent of the testatrix to give the estate to the heirs at law of the daughters, as persons taking the estate in their own right and free from the interposition of the husbands, when the daughters should marry. The failing of the trust for coverture, which the testatrix supposed she was creating, will not frustrate the general intent; but, on the contrary, it left the particular estates in the daughters’ legal estates, and enabled them, even if the rule 'in Shelley’s Case were strictly applicable, to coalesce with the remainders. The view we have thus taken of the true intent of the testatrix, leads to the affirmation of the decree of the court below.

The decree is accordingly affirmed with costs.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    The Howard Association’s Appeal.
    1. A law in 1868 exempted the property of a religious association in Philadelphia from all tax but state tax. By a general law in 1866, the real estate of no religious, &o., association used for business purposes was to be exempt from municipal tax by reason of any law exempting property of such association. By law of 1868, the real estate, specifically described, of the association was exempted from taxes, ‘‘ so long as used for charitable or religious purposes.” The first story of the association's building was used for a “ Sunday school and religious meetingsthe upper story they leased to the city for public-school purposes. Held, that the whole was exempt.
    2. The intent of the Act of 1868 was to except the association’s real estate from the Act of 1866.
    3. All statutes are to be construed so as to give them operation if the language will permit, instead of treating them as meaningless.
    January 9th. 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 113, to January Term 1871.
    The trustees of the Howard Sunday School Building were incorporated April 9th 1849 (Pamph. L. 1850, 998), to take and hold “ real estate for the purpose of erecting thereon a suitable building or buildings for the use of the Howard Sunday School Association, and such other purposes as the said corporation may deem expedient in communicating moral and religious instruction ; also to take and hold, for the use of the said Sunday school association, any goods, &c.”
    The corporation purchased a lot of ground on Bainbridge (Shippen) street, Philadelphia, and erected on it a three-storied brick building. By Act of March 21st 1865 (Pamph. L. 473), this real estate was “ exempted from the payment of all taxes except state taxes.”
    By Act of March 30th 1866, sect. 2, Pamph. L. 355, 2 Br. Purd., 1369 pi. 82, “ no portion of the real estate of any religious, charitable or benevolent association or institution in Philadelphia) which may he used for business purposes, shall be exempt from municipal or state tax by reason of any Act of Assembly exempting the real estate or property of said association.”
    By Act of March 18th 1868, sect. 1, Pamph. L. 383, “ the real estate, &c., in Philadelphia, owned by the Howard Sunday School Association, be and the same is hereby exempted from all taxation so long as the same may be used for charitable or religious purposes, except state taxes.”
    In 1870, this property was assessed for taxation for the years 1868, 1869 and 1870 at a valuation of $8000. At that time the second and third stories were, and had been occupied by the controllers of public schools for school purposes, under alease for five years, commencing January 1st 1866, at a rent of $500 per annum.

      “ The first story of the building, comprising a large audience-room, with ante-rooms and other smaller rooms adjoining, wras and is occupied exclusively by the association for the purposes of a Sunday school and religious meetings.”
    The association appealed to the Board of Revision, on the ground that the property was exempt under the Act of March 18th 1868. On the 20th June 1870, the board altered the valua.tion as follows :—
    Part of said premises, used for charitable and religious purposes, exempt, valued at - $40GO
    Part of said premises, rented for public school purposes, taxable, - - - - - - - 4000
    on the ground that the “ portion so rented is equivalent to one-half of the taxable value of the premises, and that the part so rented is not used for religious or charitable purposes,” leaving the taxable value at $4000.
    The association appealed from the decision of the board to the Court of Common Pleas, where the appeal was dismissed October 1st 1870.
    The association then appealed to the Supreme Court and assigned the dismissal of their appeal for error.

      S. C. Perkins, for appellants,
    referred to the before-mentioned Acts of Assembly, Dwarris on Stat. 690; Pray v. Edie, 1 Term Rep. 313.

      W. N. Ashman and T. J. Worrell, city solicitor, for appellee,
    referred to the same acts; University’s Appeal, 1 Phila. Rep. 422; Penna. Hospital’s Appeal, Id. 418; Wayne County v. Canal Co., 3 Harris 351.
   The opinion of the court was delivered, January 29th 1872, by

Thompson, C. J.

We cannot affirm the judgment of the court below without ignoring the Act of Assembly of the 18th March 1868. The 1st sect, declares “that the real estate, situate on Shippen street, below Fourth street, in the city of Philadelphia, owned by the Howard Sunday School Association, be and the same is hereby exempted from all taxation so long as the same may be used for charitable or religious purposes, except state taxes.”

The board of revision, on an appeal from the assessment of the property for city or municipal purposes, held that that portion of the property not actually used by the association for religious or charitable purposes was taxable for such purposes, and of this opinion was the court below. It seems to-us that this was going back to the rule of the Act of 30th March 1866, which is a general act regulating exemptions in the city of Philadelphia. It provides that “No portion of the real estate of any religious, charitable or benevolent association or institution, in the city of Philadelphia, which may be used for business purposes, shall be exempt from municipal or state tax, by reason of any Act of Assembly exempting real estate or property of the said religious or benevolent association or institution.” Of course the act could not bind future legislatures from altering the law and exempting such property entirely from taxes. That is not pretended. This act permitted apportionment of the taxation of any real estate, held for religious and charitable purposes, to the extent of the business uses to which it was appropriated. Now that is just the rule applied to the Act of 1868 by the board of revision and the court below. They held the property in question taxable for municipal and state purposes to the extent of its occupancy for school purposes at one-half of the whole valuation.

We must not impute to the legislature of 1868, ignorance of previous legislation, regarding exemptions of property of the character of that in the case before us, especially as it was general in its application to all religious and charitable associations and corporations within the city of Philadelphia, and only two years old. The high functions of the legislature forbid such a presumption, and inculcate the opposite. No reason can be assigned for the special Act of 1868, other than an intention on part of the legislature to except the real estate of the Howard Sunday School Association, from the provisions of the Act of 1866. The words of the act will bear that construction, and thus the legislation will be consistent and harmonious. ' In common parlance the buildings referred to in the act are used for religious and charitable purposes, being the designated place for the operations of the association, although the whole may not be actually occupied for the purpose. The description includes the entire property, and exempts it from all taxation excepting for state purposes. This is the only way the act of 1868 can be reconciled with the legislation of 1866, or that a purpose is discernible in passing it. It is a cardinal rule, that all statutes are so to be construed as to sustain1rather then ignore them; to give them operation if the language will permit, instead of treating them as meaningless: Ut res magis valeat, quam pereat. The act in question is plain enough, and we think the board of revision and the court below erred in construing it as they did.

Per Curiam. The decree of the court below is reversed, and the appeal is reinstated; and now, January 29th 1872, it is ordered and adjudged that judgment be and is hereby entered in favor of the appellant, the Howard Sunday School Association, against the City of Philadelphia, appellee, and that said appellants recover their costs.


author: Agnew, J.

text:
    Alfonso’s Executors’ Appeal.
    1. Executors of a decedent whose domicil was in Cuba have no authority under letters testamentary in Cuba to transfer stock in Pennsylvania.
    2. The purpose of the Acts of March 15th 1832, J 6, and March 29th 1832, § 7, wTas to prevent the estates of non-residents from being withdrawn from our j urisdiction to the prejudice of those interested in the distribution.
    3. Under the Act of June 16th 1836, \ 3, executors under authority of a foreign country cannot transfer stocks, &c.: those of a sister state may.
    4. In many respects the sister states are not to'each other as foreign states.'-
    '5. There is no distinction here between the powers of a foreign executor and an administrator.
    January 8th and 9th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius : In Equity : No. 36, to January Term 1871.
    The bill in this case was filed by Ricardo Alfonso and another, executors, &e., of Gonzalo Alfonso, deceased, against the Philadelphia and Reading Railroad Company.
    The bill charged that the decedent had lately died in Havana in Cuba, having made a will, of which the plaintiffs were appointed executors, had proved the will, and been qualified as such; that at his death the decedent owned a number of shares of the capital stock of the Philadelphia and Reading Railroad Company; that the officers of the company had refused to allow them to transfer the stock, because they were foreign executors only, without authority, under the laws of Pennsylvania or any other of the United States, to administer the estate of the decedent in Pennsylvania ; the plaintiffs averred that notwithstanding that the allegations of the defendants were true, yet being fully qualified under the law of the testator’s domicil to administer his estate, they could lawfully make the transfer of the stock.
    They prayed for a decree directing the defendants to permit them to transfer the stock.
    The judge at Nisi Prius dismissed the bill on the following opinion:—
    “ It was admitted by the able counsel of the plaintiffs, that if, before the Act of March 15th 1832, section 6, Pamph. L. 136, executors under probates in foreign countries could not intermeddle with the estate of their testator within this Commonwealth, or exercise the powers and authorities of an executor under letters granted within this state, the Act of June 16th 1836, section 3, Pamph. L. 683, does not confer upon them the authority to transfer shares of stock in any bank or other incorporated company. He admitted, also, that the case of Graeme v. Harris, 1 Dallas 465, was a determination by the Supreme Court in point, after full argument by very able counsel. This decision was affirmed in McCullough v. Young, 1 Binn. 63, in which it was said by the court that the Act of Assembly of 1705, 1 Smith 33, ‘has uniformly been considered not to extend further than to the provinces in this country at the time the act was passed ; and Graeme v. Harris turned upon that ground.’ I am asked to overrule these cases on account of the broad language of the Act of 1705, which, by special reference to probates of wills in England or elsewhere, appears expressly to negative the construction which would confine it to provinces in this country. A dictum of Chief Justice Gibson, in Willing v. Perot, 5 Rawle 265, in which he appears to assume that, before the Act of 1832, an action could be maintained on a foreign grant of administration, has also been cited. It is, however, merely a dictum. Whatever might be my opinion, were the point res integra, I do not think that, sitting in this place, I ought to overrule a decision of the Supreme Court.”
    The defendants appealed to the court in banc, and assigned the dismissal of their bill for error.

      G. M. Dallas, for appellant,
    referred to Acts of 1705, sect. 1, 1 Sm. L. 33, June 16th 1836, sect. 3, Pamph. L. 683, 1 Br. Purd. 419, pl. 78, 420, pl. 80; Graeme v. Harris, 1 Dallas R. 456; McCullough v. Young; 1 Binn. 63; 2 Bl. Com. 503; 2 Kaim’s Eq. B. 3, ch. 8, sect. 3, 4; Willing v. Perot, 5 Rawle 265; Lewis v. Stammers, 1 Dallas R. 2; Morris v. Vanderen, Id. 66.

      J. E. Gowen, for appellees.
   The opinion of the court was delivered, January 29th 1872, by

Agnew, J.

The single question in this case is, whether executors, under a will proved and letters testamentary granted in the city of Havana in the island of Cuba, have lawful power to transfer thestock'of the railroad company. The 6th section of the Act of 15th March 1832 (Purd. 275, pi. 14), enacted that no letters testamentary, or of administration, granted out of this Commonwealth shall confer a-ny of the powers and authorities possessed by an executor or administrator, under letters granted within this state. The 10th section of the same act provided that letters testamentary granted, without a bond taken, to any one not an inhabitant of the state, shall be void. Illustrative of the intention of these sections, we must also read the 7th section of the Act of 29th March 1832 (Purd. 278, pi. 36), enacting that no appointment of guardian made or granted out of the state, shall authorize the person so appointed to interfere with the estate or control the person of a minor in this state. These sections were intended to change the law in relation to foreign executors, administrators and guardians, and their evident purpose was to prevent the estates of decedent nonresidents from being withdrawn from our jurisdiction to the prejudice of domestic creditors, and others interested in their distribution. It is clear, therefore, that they repealed the Act of 1705 (Purd. 284, pi. 78), so far as it enabled executors and administrators acting under letters granted out of the province to exercise the same authorities, as if the probates and letters had been granted here. No distinction was made in the Act of 1832 between letters testamentary and of administration, and on the contrary, even letters granted here to a non-resident executor were made void unless he had qualified himself by giving a bond with sureties. These acts of 1832 have not been repealed, but yet stand as the evidence of the general policy of the state. They have been modified, however, as to the debts and public loans of the state, and as to the stocks of banks, and stocks and loans of incorporated companies in this state, by sundry laws, which enact that they shall not apply to these stocks and loans; but the same “ shall pass and be transferable,’’ and the “dividends and interest be receivable” in like manner in all respects, and under the same, and no other regulations, powers and authorities, “ as were used and practised before the said recited acts were passed.” This language is marked and peculiar. Had the legislature intended to revive the Act of 1705 specifically as to these stocks and loans, and confer on executors the powers claimed in the argument, it would have been easy to say so directly. But it was known that the Act of 1705 had received a certain interpretation, and hence the expressions “ used and practised before the said recited acts were passed.” Now certainly the best evidence of this interpretation is that which is afforded by authoritative precedents, and these we find in the cases of Graeme v. Harris, 1 Dallas 456, and McCullough v. Young, 1 Binney 63. In the former it was held that letters of. administration granted by the Archbishop of York, in England, were not sufficient authority to maintain an action in this state. In the latter it was said that the Act of 1705 has uniformly been construed to extend no farther than to the provinces in this country at the time the act was passed, and that Graeme v. Harris turned on this ground. It was therefore held that letters from a sister state were a sufficient authority. In this connection we are not to be unmindful of the influence which the separation of the colonies from the mother country had upon the minds • of the judges, and the different relation in which the states stand to each other from, that of foreign countries, especially after the adoption of the Federal Constitution. Under that constitution the states now lie within one general government, and are connected together by easy and speedy means of access. The citizens of each are secured in their rights by the Constitution, and by Federal laws administered by Federal courts. They are not as foreign states to each other in many respects, and the removal of property from one to another does not cause the same sacrifice of convenience and oftentimes of rights, as it does into a foreign country, different in its language, institutions and laws. There was great reason, therefore, for the distinction which was taken by this court in the two cases referred to. Domestic creditors, legatees, or next of kin, should hot be sent abroad in quest of property to answer their claims, when the decedent left property within the jurisdiction of the state, that can be applied to meet their demands. There is no good reason, therefore, why the modification of the Act of 1832 should extend beyond the practice and usages of the state as determined by its judicial tribunals. Nor is there any good reason to distinguish the case of an executor from that of an administrator. The probate of the will can add nothing to his case. The Act of 1832 does not affect the will or the rights which vest under it, but only its execution under the foreign letters. Leaving all interests granted by the testator unaffected, it merely forbids the execution of the will by foreign hands in order to protect our own citizens. .This protection is needed just as much under a will as when there is none. When there is a will, a copy of it and of the probate may, under the 12th section of the Act of 1832, be brought here and registered, and letters granted even to the foreign executor, on his giving the proper bond. There is, therefore, no hardship in following the ancient usage and practice, and confining the authority of letters granted out of the state to transfer these stocks and loans, and receive interest and dividends, to such as are granted within the- United States. Upon the whole we discover no error in the decree, rendered at Nisi Prius on the demurrer, and it is therefore affirmed.


author: Sharswood^ J.

text:
    Mackey’s Administrator versus Coates and wife.
    1. D. assigned to A. a mortgage to be collected and paid to E. A. collected it, and paid the proceeds to J. who promised to pay them to E. After D.’s death, his executor sued J. for the money as D.’s estate. J. gave no notice of the suit to E., and obtained a verdict on a set-off, which after suit he acknowledged had been previously paid; that he had used it to save the money from D.’s estate for E., and promised to pay E. In a suit by E. against J.’s administrator: Held, that the former verdict was not a bar to E.’s recovery.
    2. E. being neither party nor privy to the suit, and without notice, was not estopped by the record.
    3. A trustee sued on a title hostile to his cestui que trust to protect himself by the recovery against him, must show that he acted bon& fide, and that the cestui que trust had notice of the suit.
    January 15th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: No. 206, to January Term 1872.

      This was an action of assumpsit by J. Armstrong Coates and Elizabeth his wife in her right against John A. Mackey, administrator, &c., of John Mackey, deceased.
    The declaration was in the common counts, and on the call of the defendants the plaintiff furnished the following bill of particulars :—
    “ The claim of the plaintiff in this case, is for the sum of $1000, with interest on the same from January 1st 1864, for money had and received to the use of the plaintiff, by John Mackey in his lifetime. The said sum of $1000 having been received from James Steele as the proceeds of a mortgage given by James Steele to David Mackey, the father of the plaintiff.”
    The case was tried, November 13th 1871, before Butler, P. J.
    David Mackey died in 1863; Elizabeth Coates was one of his children, and John B. Mackey was executor of his will.
    James Hodgson, a witness for the plaintiff, testified, that shortly after David’s death, John Mackey, who was his brother, said to the witness, that the executor of David had threatened to bring suit against him for the amount of Steele’s mortgage; “ John said to .me ‘if you fellows will let me alone, I will carry out David’s order’ — that was to collect that mortgage of Jimmy Steele, and hand the money over to Lizzie Mackey, and I pledged myself to do it. I then turned to him and looked him in the face, and said to him, ‘John, will you do it?’ and he said, ‘I will.’ I then pledged myself to let him alone and not join in a suit. He said, ‘ I have your honor to not meddle with it, and you have my honor that I will pay it.’ He then said, ‘if John B. Mackey does sue me, I have an old instrument of writing that was paid ten years ago, and nothing on it to show it was paid. I will bring it in and beat him in spite of his teeth. I will collect the money and pay it over to Elizabeth.’ He took out the instrument and showed it to me. * * * I heard nothing more until after the suit; he came to me to tell me that he had beaten his nephew, John B. Mackey, and that he would now carry out his promise, and pay the money over to Elizabeth. Soon after I met him in John Pitt’s meadow with John Miner. He repeated the same language in part in his presence. He repeated it afterwards again, in the presence of Levi Hall.” John Mackey died about 1867, two or three years afterwards.
    John Pitt testified, that Elizabeth Mackey (Coates), soon after her father’s death, wanted him to take her to West Chester to file a caveat to her father’s will. John Mackey was present; he said to her that there was $1000 had been transferred by her father to him; this money would be paid over to her and would make her nearly equal, and advised her not to enter the caveat; he said, the $1000 was a certain thing, and it was difficult to break a will; she then agreed not to enter the caveat. John Mackey afterwards told Elizabeth, in the presence of witness, that the money had been paid over to him, and when he got well enough, he would pay it to her; he also said that he would not be able to pay witness a debt he owed him, as he had to pay Elizabeth $1000.
    There was evidence from a number of other witnesses to the same effect.
    The following letter was given in evidence :—
    “January 7th 1864.
    “ John B. Mackey: — This will inform you that in consultation with your father, since he made the will (which you have proven), he directed me to pay over to your sister Lizzie the amount due from James Steele. I refrained from mentioning it to any one except Lizzie, until I received the money, which I will now pay over to her the first opportunity.
    “ At a glance, I presume you will see the justice and propriety of the same.
    “ Had I not informed Lizzie of this provision in her favor, it was her intention to contest the will; but that satisfied her, and I think it ought to satisfy you and all the rest.
    “ Yours, &c., John Mackey.
    “ If she sees fit to lend you the money for present emergency I have no objection. J. M.”
    The Steele mortgage to David Mackey was dated November 12th 1860, to secure $922 on land in Maryland, and was assigned by deed dated June 13th 1861, to John A. Mackey, a son of John Mackey. There was evidence that John Mackey had said that the mortgage had been assigned to John A. because he and David were both getting old, and Maryland was about to secede, and he was to collect as soon as possible and hand it over to Elizabeth.
    There was evidence also that $1113.04, the money due on the Steele mortgage, had been paid to John A. Mackey by the attorney who had collected it, and by John A. paid to his father, John Mackey.
    The defendant gave in evidence the records of a foreign attachment in the Common Pleas of Chester county, issued March 23d 1864, at the suit of John B. Mackey, executor, &c., of David Mackey, against John Mackey ; the attachment was dissolved by the giving of bail.
    The plaintiff’s claim in that suit was the proceeds of a mortgage held by David Mackey against James Steele, which had been paid to John Mackey.
    The defendant pleaded non assumpsit, and also put in a plea of set-off of a debt of $855.08, due to the defendant by the plaintiff in his lifetime.
    The set-off given in evidence under the plea was the following:—

      “$855.08. “April 25th 1855.
    “Due John Mackey for principal and interest on money borrowed April 16th 1842, eight hundred and fifty-five dollars and eight cents, which I promise to pay one year after date with interest. Witness my hand and seal.
    “David Mackey, [l. s.]”
    The defendant gave evidence that the only claim in the foreign attachment trial was for the money collected on the mortgage, and the only defence the set-off; there was no allegation that the money collected on the mortgage belonged to anybody but John B. Mackey, executor. The verdict and judgment were for the defendant for $258.25.
    The defendant’s point was :—
    “ The verdict and judgment in the case of John B. Mackey, executor of David Mackey, against John Mackey, in which the money claimed in this suit was recovered, is a conclusive bar to the plaintiff’s recovery in this case.”
    The court charged:—
    “ The court cannot instruct the jury as requested. The verdict and judgment referred to do not present a bar to the plaintiff’s recovery. If David Mackey transferred the mortgage (in the manner shown by the evidence) as a gift or advancement to his daughter, and the defendant received the money for her, promising her that he would hold it for, and pay it over to her thereafter, the verdict and judgment in the suit of David Mackey’s executor against him does not stand in her way.” * * *
    The verdict was for the plaintiff for $1531.75
    On the removal of the record to the Supreme Court by the defendant, amongst others, he assigned for error the answer to his point.

      G. M. Rupert and W. Darlington, for plaintiff in error.—
    Elizabeth Mackey was not a party to the contract or its consideration ; the suit should be in the name of David’s executor: Owings v. Owings, 1 Harr. & Gill 484; Blymire v. Boistle, 6 Watts 182.

      J. J. Pinkerton and W. Mac Veagli, for defendant in error.—
    As to the effect of the verdict in the foreign attachment cited Coleman’s Appeal, 12 P. F. Smith 272; The Pocket Co. v. Sickles, 5 Wall. 592; Converse v. Cotton, 13 Wright 346.
   The opinion of the court was delivered, January 29th 1872, by

Sharswood^ J.

There is but a single question in this case, namely, whether the court below erred in refusing to affirm the point presented by the defendant. They gave their reasons for so doing in an opinion accompanying the answer. Whether the reasons were right or wrong is totally immaterial. By dissecting this opinion the plaintiff in error has made seven assignments. The first is the only one necessary to be considered. The court were asked to say that the verdict and judgment in the case of John B. Mackey, executor of David Mackey against John Mackey, in which the money claimed in this suit was recovered, is a conclusive bar to the plaintiff’s recovery in this case. That they were right in declining to affirm this point is abundantly clear. It would have been manifest error to have done so. Elizabeth Coates in this action demanded of the administrator of John Mackey money had and received by John Mackey to her use. She gave evidence by the testimony of witnesses to repeated declarations by him in his lifetime that he had received and held the money collected of James Steele for her. The administrator produced and gave in evidence the record of a suit by John B. Mackey, the executor of David Mackey, against John Mackey, for the money in question, to which he had pleaded a set-off, and recovered judgment in his favor. Supposing it all to have been bond, fide, on what principle can that record be an estoppel to the plaintiff below, any more than mere payment to David Mackey would have been ? She was no party nor privy. The defendant, John Mackey, gave her no notice to come in and defend. As to her it was res inter alios acta.

It is contended, however, that John B. Mackey, the executor of David Mackey, had the legal title to sue, and that the title of Elizabeth Coates, if she had any, was only an equitable one as cestui que trust, and that John B. Mackey must be regarded as having sued to her use. It would follow that John' Mackey would be protected by the judgment in that case. But this contention is founded upon an entire mistake of the relations of the parties. The plaintiff below claimed and had given evidence to show that David Mackey had assigned the mortgage of James Steele, upon which the money had been collected, to John A. Mackey, in trust for her. This was a question of fact in the cause for the jury. Assuming it to be so, it is plain that John A. Mackey, and not David Mackey, was the party who received the money to the use of Elizabeth Coates, and was her trustee. The claim of John B. Mackey, the executor of David Mackey, was hostile to her title. If her allegation of fact was true, he had no right, legal or equitable, to the money. David Mackey had assigned the mortgage under seal to John A. Mackey. John A. Mackey had recovered the amount, and paid it to John Mackey, for the use of Elizabeth 'Coates. A trustee sued by a stranger on a title hostile to his cestui que trust, in order to protect himself by the recovery against him, must at least show that he acted bond, fide; that the cestui que trust, if sui juris, was notified of the suit, and had an opportunity to defend. So far from this, the evidence, if believed by the jury, tended to show that John Mackey with a full knowledge of the title of Elizabeth Coates had set up an old paid note as a defalcation, declaring, however, at the time, that he did this for the purpose of protecting the money in his hands, as the proper money of Elizabeth Coates, from the hostile demand of John B. Mackey, the executor of David Mackey. It would be a great perversion of law and justice to hold that he could now avail himself of that judgment as a conclusive bar to a recovery in this suit.

Judgment affirmed.


text:
    The Philadelphia and Baltimore Central Railroad Company’s Appeal.
    1. The Act of April 7th 1870, authorizing executions against corporations, supplies the 72d and 73d sections of the Act of June 16th 1836 authorizing sequestration.
    2. The franchises and property of a corporation may be seized and sold out and out under a fi. fa.
    • 3. The Act of April 7th 1870 construed.
    January 15th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of-Chester county: No. 281, to January Term 1872.
    On the 7th of March 1870 William McCullough recovered judgment for $724.98 against The Philadelphia and Baltimore Central Railroad Company. On the 22d of September 1870 the plaintiff issued a fi. fa., to which the sheriff returned, “ that the railroad company has no office in the county of Chester, and has no personal or real estate therein; therefore same remains wholly unsatisfied.”
    On the petition of the plaintiff the court (Butler, P. J.) awarded a writ of sequestration, and appointed Samuel M. Felton sequestrator.
    The defendants removed the record to the Supreme Court by certiorari, and assigned the awarding the writ of sequestration for error.

      T. Hart, Jr., and J. E. Growen, for certiorari.
    The Act of April 7th 1870, Pamph. L. 58, sect. 1, 1 Bright. Purd. 291, pl. 52, substitutes execution for sequestration: Fox v. Hempfield Railroad (West. Dist. U. S. Court), Pittsburg Leg. Jour. January 4th 1871. They referred to Act of June 16th 1836, sect. 72, Pamph L. 774, 1 Bright. Purd. 289) pl. 42. Under the Act of 1836 all personal property of a railroad company necessary for its operations was exempt from fi. fa.: Covey v. Pitts., F. W. and C. Railroad, 3 Phila. R. 173; Canal Co. v. Bonham, 9 W. & S. 27. The Act of 1870 allows all the property and franchises of a corporation to be sold on a fi. fa. The Acts of 1836 and 1870 are inconsistent, and the remedy under the Act of 1836 is repealed: Johnston’s Estate, 9 Casey 511; Commonwealth v. Cromley, 1 Ashmead 179.

      W. P. Barber, contra.
    The Act of 1870 should be construed strictly, for its effect would be to take from the public the rights which are granted to them by the incorporation of a railroad company ; this the company itself could not do : Ammant v. N. Alexandria and P. Turnpike, 13 S. & R. 210; Susquehanna Can. Co. v. Bonham, 9 W. & S. 28; Leedom v. Plymouth Railroad, 5 Id. 226; Plymouth Railroad v. Colwell, 3 Wright 339; Foster v. Fowler, 10 P. F. Smith 31.
   The opinion of the court was delivered, February 19th 1872, by

Thompson, C. J.

The Act of 16th June 1836, “ relating to executions,” provides a mode for the collection of debts due by insolvent corporations, viz., by sequestration. A return to the fieri facias, pursuant to the directions of the 72d section of the act, showing a demand made upon the chief officer of the corporation, or other officer in charge of its principal office, of the amount of the execution, without success, and a failure to find property liable to seizure and sale upon it, make way for the operation of the 73d section, and the creditor may, upon petition to the court showing these facts, have a writ to “ sequester the goods, chattels and credits, rents, issues and profits, tolls and receipts from any road, canal, bridge or other work's, property or estate of such corporation.”

This statute was familiar to the profession and people, and largely practised under for a period of nearly twenty-eight years before the passage of the Act of 7th April 1870, which radically changes the mode of proceedings against such corporations as were previously within the sequestration provisions of the Act of 1836. By this act, instead of sequestration, based upon the return of the fi. fa. under the Act of 1836, unsatisfied in whole or in part, an alias fi. fa. may be issued to seize and sell the franchises and property of such delinquent corporation out and out.

We must presume that the legislative mind, when the Act of 1870 was passed, was fully acquainted with the provisions of the old act, and that a change of remedy was intended in regard to corporation debts. That a change was intended appears on the face of the act. Its provisions, it is said in the act, were “ to be in addition” to those contained in the 72d section of the Act of 1836 (not 62d, as it reads in the Pamphlet Laws, which is obviously a clerical error), “ and in lieu of proceedings by sequestra tion under the Act of 1836.” The addition to the provisions of the 72d section was simply an alias fi. fa. to seize and sell the franchises and property of the corporation, and this was, says the act, to “ be in lieu of proceedings by sequestration.”

These words are so clearly expressive of an intent to supply the old remedy by a new one, that we need not the aid of the maxim of the common law, leges posteriores priores contrarias abrogant, to guide us to our duty in construing these acts. The Act of 1870 undoubtedly supplies the provisions of the Act of 1836, in regard to insolvent corporations to the extent noticed. Both cannot possibly co-exist as remedies. A judgment-creditor proceeding by sequestration could not restrain another from proceeding by execution, the obvious result of which would be to put an end to sequestration by a sale of the property and franchises. There is nothing in any act which would prevent the latter from taking his remedy by execution, under the new law. Unless, therefore, sequestration granted would result in restraining other creditors from pursuing their executions according to the new law, it is idle to think of sequestration now as a remedy; and we have said there is no law in the statute book to that effect. We hold, therefore, that sequestration is not grantable in this case, and that the proceedings below must be reversed. For myself, I think some additional legislation is needed to prevent the Act of 1870 from operating unjustly ; inasmuch as by its provisions an entire road running the length or breadth of the state may be sold without proper notice. When, therefore, the writ issues, notices of the proposed sale should be required to be made upon the officers of the corporation, and the sale advertised in every county into which the road runs. This is but a personal suggestion, however.

The proceedings in sequestration are set aside, and the decree ordering the writ of sequestration is reversed.


text:
    Johnson versus The West Chester and Philadelphia Railroad Company.
    1. By arrangement tickets were sold by two railroad companies to pass over each other’s road. The train of each from different points arrived at and left a station at the same time on different sides of the same platform. A passenger in one train having such ticket, arrived just as the other train was departing, passed over the platform, and stepped on the ear of the other train ; by its movement he was thrown off and injured. The court charged, “ If the train was distinctly running on the track when the plaintiff attempted to enter; he was guilty of negligence and cannot recover.” Held, to be error; it was for the jury to say whether the danger of boarding the train when in motion was so apparent as to make it the duty of the passenger to desist from the attempt.
    2. The companies having an arrangement for through tickets, it was binding on both companies, and it was their duty to give a reasonable time for the transfer of passengers and their baggage.
    3. The conductor of the arriving train signalled the departing train that there were no passengers for it. The passenger was not responsible for the mistake; reasonable time should be allowed to ascertain whether there were passengers.
    4. The company having wronged the passenger by the premature moving of the train; in ascertaining whether he was negligent, he was not required to exercise the self-possession and coolness in determining the danger as a by-stander or passenger in the car would have.
    5. Duties of companies of connecting railroads stated.
    January 15th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: No. 176, to January Term 1872.
    This was an action on the case brought October 1st 1869, by John C. Johnson against The West Chester and Philadelphia Railroad Company, for negligence, by which the plaintiff was thrown from the car of the defendants and lost his arm.
    The Philadelphia and Baltimore Central Railroad and the defendants had a common platform and station-house at a point called “Baltimore Junction,” the Baltimore railroad being on the south-west side of the platform, and the defendants’ road being on the north-east side; the two roads were almost united at the east end of the platform, and then diverged south and north, so that the distance across the platform at about the middle of its length was 46 feet.
    The Baltimore Central Road connected also with the Philadelphia, Wilmington and Baltimore Railroad at Lamokin, about eight or nine miles from the Baltimore Junction. By arrangement between the companies, tickets are sold from Wilmington around by Lamokin and over the Baltimore Central Railroad, and the defendants’ railroad to West Chester.
    The trains on the Baltimore Central Railroad, according to their schedules, left Philadelphia at 4.30 o’clock p. M., Lamokin 5 o’clock p. m., and Baltimore Junction at 5.27 o’clock p. M. On the defendants’ road the trains left for West Chester from Philadelphia at 4.35 o’clock, from Baltimore Junction at 5.27 o’clock p. M. By their advertisements, the defendants announced that they connected with the Baltimore Central Railroad at Baltimore Junction by trains, leaving Philadelphia at 7.40 o’clock A. M. and 6.45 o’clock p. M.
    On the 27th of May 1869, the plaintiff bought a ticket at Wilmington for West Chester; he came upon the Philadelphia; Wilmington and Baltimore Railroad to Lamokin, there took the train on the Baltimore Central Railroad to Baltimore Junction; he got out there to take the defendants’ train to West Chester ; their train was there when he arrived; he crossed the platform to the last car of the train, whilst he was getting on, just as the train started, he fell, the wheels of the car passed over his arm and crushed it, so that it was necessary to amputate it.
    The evidence of the plaintiff was, that the defendants’ train was there first, and that the Baltimore Central train came immediately afterwards; that plaintiff got off of that train as soon as it stopped; he had a small valise, a small coil of rope of about two pounds weight and a suit of clothes; he “ walked across the platform pretty fast, between a walk and á run,” he supposed the train was not in motion when he attempted to get on it.
    The Baltimore Central train arrived at the junction at 5.28 P. M.; the time allowed for plaintiff to get on was very short; the conductor on Baltimore Central train knew that the plaintiff was on his train for West Chester; he gave no signal to the defendants’ train that he had no passengers; the West Chester train started as soon as the Baltimore Central reached the station.
    James Wilcox, for the defendants, testified that when the plaintiff ran across the platform the West Chester train was distinctly in motion, running about three miles an hour; the train did not wait more than a minute after the Baltimore Central train came up.
    William McCullough testified that he saw plaintiff running across the platform, the train was then distinctly in motion; the conductor of the West Chester train called to hold up; he then heard that there was a man under the car. “ It took about five seconds for all this to happen.”
    The conductor of the West Chester train testified that the conductor of the other train “beckoned to him to go-ahead. We started. I ran forty or fifty feet to ge t on our train. I saw a man within eight feet of our train. Told him not to get on. A young man was standing between him and me. Johnson caught hold of the railing and it turned him round; went down on his left side; held on when he went down; made three or four steps backwards, and his hold was broken. After we passed I saw him under the stationary platform; he walked up the steps. I asked him where he came from ; he said from the other train. He pulled out a ticket and handed- it to me. Our car was about moving when the Baltimore came up. I got on our train after it started. When Johnson got on our cars we were going at the rate of three or four miles an hour. I hallooed to him to hold up. He was coming a fast run. I knew he could not get on; had a valise in his hand. We did not stop there for the Baltimore train. * * * We always stopped at the Baltimore Junction and took on passengers if they were there. Length of stopping is according to circumstances. Time is allowed for passengers to get off and on. Time varies from half a minute to a minute and a half. The other train pushed on directly after ours. We generally get passengers there. The train went after he seized the railing, six or seven feet. The Baltimore conductor signalled me he had no passengers. If he had, I would have stopped our train. We are at liberty to wait for passengers there. I got on our train after it started. Johnson followed me in about three seconds after I got on.” * * *
    A number of witnesses testified that the West Chester train was perceptibly in motion when the plaintiff attempted to get on.
    The plaintiff’s points were:—
    1. Railway corporations, acting as carriers of passengers, are bound to use all the diligence necessary to transport those passengers in safety; and where it happens that a passenger is injured, the burden of proof lies on the corporation to show that such diligence has been used.
    4. When John T. Johnson, on the 27th of May 1869, arrived at the Baltimore Central station, on the West Chester Railroad, he had a right to suppose and believe that the West Chester train was in waiting to receive him, and also, to act in that supposition and belief till distinctly admonished to the contrary; and if the West Chester train started without such admonition being given so as to be clearly indicated to him, under the circumstances which surrounded him, by some act or word on the part of those having control of the train, the defendant is responsible for whatever injury happened to him for want of such admonition.
    5. Even if the jury believe that the train was in motion, if it was not apparent that it was distinctly under way, but might reasonably be supposed by one in the plaintiff’s circumstances to be only preparing to get under way, then it was not negligence in the plaintiff to endeavor to get on board the car.
    6. Whether there was negligence or not, on either side, is a question solely for the jury.
    The answers were :—
    “1. This may be true where the injury occurs while the passenger is within the car. But the principle is inapplicable here, inasmuch as the plaintiff was injured while attempting to get upon the train.
    “ 4. This is true; but if the train was running away from the station, and could be perceived by the plaintiff to be doing so when he came up, this was a sufficient admonition, and could not be disregarded. If the train could be so perceived to be running, it was the plaintiff’s duty to observe it.
    “ 5 & 6. These are fully answered in the general charge.”
    The court (Butler, P. J.) charged:—
    “ The plaintiff claims to recover compensation for an injury which he says resulted from the defendant’s negligence.

      “■To entitle him to succeed it must appear, first, that he was injured; and second, that the injury resulted wholly from the defendant’s negligence — not being contributed to in. any degree by negligence on his own part.
    “ That he was seriously injured is fully shown.
    “Did this injury result from negligence in the defendant,-and from it alone ?
    “ To ascertain this it is proper to inquire, first, whether the defendant was guilty of any negligence tending to the injury. And if it was, then, second, whether the plaintiff was also guilty of negligence tending to the same result.
    “ As the Baltimore Junction was an appointed stopping-place for the train which the plaintiff endeavored to enter, it was the duty of the company defendant, to keep the train standing so long as was necessary to enable the plaintiff to enter safely, if he was then seeking to do so at the time it started.

    “ The allegation of the plaintiff is that the train started too soon. If he was present endeavoring to enter when it started, his allegation is well founded. And if such too early starting produced his injury, without being aided by negligence on his own part, he is entitled to recover.
    “ Then was he present seeking to enter when the train started ? This is the first question in the cause. To ascertain how it should be answered we will turn to the evidence.” * * *
    The court recapitulated the evidence.
    “ Now, looking at the question in the light of this evidence, Was the plaintiff present, seeking to enter when the train started, or did he come up after it had gotten under way ? If the latter be the fact, the plaintiff cannot recover, and your inquiries need go no further. If, on the other hand, he was present when it started, seeking to enter, and his injury resulted from its too early, moving, he can and should recover; unless, indeed, he too was guilty of carelessness tending to the same result.
    “ And thus (if you think he was so at the train seeking to enter at the time it started — before it got distinctly under way), you will be brought to the second question stated.
    “Was he guilty of such carelessness? When he attempted to enter the car, his hands and arms were to some extent, encumbered. Some of the witnesses have testified that he was carrying a valise, a bundle and a coil of pipe. Yet if the train was entirely still when he stepped from the platform by its side, it is not suggested that there was any want of care in the attempt to enter. If, however, it was not entirely still — was in the act of starting— taking up the slack, as one of the witnesses has denominated it, but was not yet distinctly under way when he attempted to enter, then it is for you to determine whether he was or was not guilty of carelessness in making the attempt, encumbered as he was. What was the situation of the train at the time the plaintiff sought to enter, we have already considered in examining the first question stated. If you find it was entirely still, it is not alleged, we repeat, that’the plaintiff was guilty of carelessness in attempting to enter. If you find it was not entirely still — was in the act of starting as before described, but was not clearly and distinctly under way, then you will say whether it was or was not careless to attempt to enter, encumbered as the plaintiff was.
    “ The defendant has asked us to instruct you that if the train was in motion when the plaintiff attempted to get upon it he was guilty of negligence and cannot recover.. If by the term “motion ” is meant running upon the track — distinctly running, so as to be perceptible to those alongside — the point is affirmed; otherwise it is not. There may have been some motion, incident to starting and preceding it, yet of so slight a character that the law cannot pronounce an attempt to enter at that time negligent; but must leave the jury to judge of it in the light of all the circumstances. But if the train was distinctly running upon the track when the plaintiff attempted to enter, then he was guilty of negligence and cannot recover. If his injury resulted from an attempt to enter under such circumstances it must be regarded as the direct consequence of his own folly. No one has a right to attempt to get upon a running train. To do so is to imperil his own life and the lives of others. It is therefore a plain disregard of duty. Generally what constitutes negligence in a particular case, is a question for the jury ; because negligence is want of ordinary care. To determine whether there has been negligence in a given case therefore involves two inquiries ; first, what would have been ordinary care under the circumstances; and, second, did the conduct in question come up to the standard. In most cases the standard is variable, and must be found by the jury. But where it is fixed —the measure of duty defined — entire omission to observe it, is negligence. Thus it has been held to be the duty of a railroad company to decrease the speed of its trains while passing a sharp curve; to signal their approach to the crossing of a common road; to afford time for passengers to get safely on and off at sta-L tions. And the duty of passengers to approach and leave trains by way of the platforms provided; to keep off the road except when there is occasion to cross it, and when there is such occasion to stop, look and listen for approaching trains before crossing. And that an omission of this duty is negligence.
    “ Now, that it is equally the duty of all persons to stand away from a train running upon the track, and that a failure to do so is negligence, cannot be doubted.
    [“ We therefore charge you that if the train was distinctly running upon the road when the plaintiff attempted to enter it he cannot recover.]

      [“ It is possible the train should have awaited the plaintiff’s arrival from the Baltimore road (if he was there when it started). But whether it should or not is unimportant in this action]. If the defendant failed to keep its contract with him in this respect his remedy was by an action for its breach. [He could not set his life or limbs upon the hazard of a leap at the running train and hold the defendant liable for the consequence of such folly.]
    “ Now in conclusion, we repeat: To entitle the plaintiff to re-t cover you must find from the evidence that his injury resulted from negligence in the defendant, and from this alone — not being contributed to in any degree by want of care on his part.” * * * The verdict was for the defendants.
    The plaintiff removed the ease to the Supreme Court.
    He there assigned the following errors :—
    1-2. The answers to his 1st and 4th points.
    3. Failure to answer his 5th point.
    4, 5, 6. The parts of the charge in brackets.
    7. In not presenting the case in its proper light to the jury, having failed to give any, or just weight, to the vitally important fact, that the trains on the two roads were connecting trains, and the defendant was, beyond dispute, guilty of negligence in moving the West Chester train before passengers arriving by the other train had time to transfer themselves from one train to the other.

      W. Mae Veagh and J. J. Lewis, for plaintiffs in error.

      W. Darlington, for defendants in error.
   The opinion of the court was delivered, January 29th 1872, by

Agnew, J.

This case appears to have been carefully tried by the learned and able judge in the court below. Yet, after an attentive examination, we are led to the conclusion, that the rule of concurrent negligence was held a little too closely against the plaintiff, and the province of the jury rather trenched upon. The judge himself states the well-known rule that, “generally what constitutes negligence in a particular case, is a question for the jury:" Kay v. Pennsylvania R. R. Co., 15 P. F. Smith 273, 274; Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30. But we think his error was in laying down as a rule of law, a matter which was only an element in the evidence, to wit: that if the train was distinctly running on the track, so as to be perceptible to those alongside, the plaintiff was guilty of negligence in attempting to enter upon the train, and could not recover. The following passages in the charge, perhaps most clearly denote the spirit and meaning of the instruction given to the jury:

“Yet, if the train was entirely still when he stepped from the platform by its side, it is not suggested that there was any want of care in the attempt to enter. If, however, it was not entirely still — was in the act of starting — taking up the slack, as one of' the witnesses has denominated it, but was not yet distinctly under way, when he attempted to enter, then it is for you to determine whether he was or was not guilty of carelessness in making the attempt, encumbered as he was.” “The defendant has asked us to instruct you, that if the train was in motion when the plaintiff attempted to get upon it, he was guilty of negligence, and ^cannot recover. If by the term “motion” is meant running upon the track — distinctly running so as to be perceptible to those ^alongside — the point is affirmed, otherwise it is not. There may have been some motion incident to starting, and preceding it, yet of so slight a character, that the law cannot pronounce an attempt to enter at the time negligence; but must leave it to the jury to judge of it in the light of all the circumstances. But if the train was distinctly running upon the track when the plaintiff attempted to enter, then he was guilty of negligence, and cannot recover.”

It is evident, that the meaning which a jury would draw from the charge was, that if the preparation for starting was over, and the train was under way, that, no matter how slow the motion, yet if the running of the train on the track was distintly visible to a bystander, the plaintiff’s time to enter was past, and his attempt to get on the train would be such culpable negligence in law as would bar his recovery. That such a rule may be applicable to some cases, may be true, though we do not now affirm it. But clearly we are not to leave out of view, in all cases, the conduct of the railroad company in producing the result, and the natural and probable effect that conduct has had upon the mind of the passenger in influencing his act. There cannot be an inexorable rule so unbending that no circumstances begotten by the railroad company itself, shall not change it. Even when a train is distinctly under way, there are cases, and this was one, where it must be left to the jury to say whether the danger of going aboard was so apparent that it would be culpable negligence in the passenger to attempt it. Here the West Chester Railroad Company had a running arrangement with the Philadelphia and Baltimore Central Railroad Company, by which their trains met at the Baltimore Junction, and passengers were received from each on through-tickets. The plaintiff’s ticket is not questioned. Under such an arrangement, it is the duty of each company to give a reasonable time for the transfer of passengers and their baggage. In this instance, it appears that the West Chester train began to move almost as soon as the Baltimore train stopped. It seems that the conductor of the latter signalled the conductor of the former, that he had no passengers for the West Chester train. But the plaintiff, who had a through-ticket, was not responsible for this mistake. Reasonable time should be allowed to develop the fact whether there are passengers. A through-ticket, issued under such an arrangement, is binding on both roads. The plaintiff, it seems, hastened across the platform, and attempted to enter, but being encumbered with a valise, a bundle, and a coil of pipe on his arm, he missed his footing, fell to the track, and his right arm was crushed by the wheels of the car. The fact appears to be clear, that a reasonable time for the transfer was not given, and that the plaintiff, with all his effort to make haste, was unable to make the connection in consequence of this want of time. Now, though the train was distinctly in motion, so that a bystander, cool and unconcerned, could see it visibly running on the track, are we to say, as a matter of law binding on the jury, that a passenger, having a right to go on the train, and seeing himself about to be left improperly by the wayside, is guilty of culpable legal negligence, if he should essay to reach his destination, no matter how slow the motion in running might be, or how little danger was apparent to him ? He may be guilty of negligence, but of this tbe jury should judge under the circumstances. He may not “set his life or limbs on the hazard of a leap at the running train,” as the judge emphatically said, and doubtless if such were the character of his attempt, it would be negligence. The expression leap at a running train,” denotes a higher effort and less consideration on part of the traveller, than merely attempting to board a car under way. In the former, a jury might- discover negligence, while in the latter, they might not, in view of the circumstances, discover any. In discussing the conduct of the passenger merely, we are not to lay out of sight the wrong of the company, in its influence upon Ms mind and act. He may have strong motives to reach his destination — indeed, no man bu,t must feel, and feel strongly, at being left by the wayside; he is conscious of his right to go aboard, and naturally becomes excited at the sight of the moving train, perhaps is alarmed, and in some degree confused. If the train be running slowly, and the danger is not apparent to him, what so natural as that he should hurry to reach the train, and to get aboard ?

But if we lay down the inexorable rule for this and every other case, that whenever the train can be seen to be distinctly running, it is legal negligence to attempt to get on, we set a premium on the wrong K)f the company, which influenced the very act itself. To say that whenever the motion of the train is so distinct that bystanders can distinctly see it under way, and running along the track, the passenger is to be as cool and unconcerned as they, fold his arms, and say to himself, I’ll sue you for this breach of contract in leaving me here, is to him bitterness itself. He may be a stranger, and know not where to find accommodation; the severity of the winter may surround him, or the heat of summer oppress him; the elements may war against him, and night or approaching darkness may heighten his alarm. Or, if no stranger, his business may be urgent; his family may require his presence; his health may be poor; his means limited; his desire to reach his destination overpowering, and a hundred reasons may influence him to go on. Now, are we to say that the wrong which has caused his mind to be excited and aroused his fears, which confuses him, and has made him less cool and calculating than those who are standing by, and can look upon the departing train without emotion, is not to be taken into the'account in considering his act? What caused his state of mind ? Not his own carelessness or breach of duty as a passenger, but the illegal and wrongful act of the carriers. Surely it does not lie in the mouth of the railroad company to say to him, the law will take no account of our breach of duty in its effect upon you. You ought not to have suffered it to move you, but if you saw our train was moving along the track, the slack taken up, the train stretched out, and the cars under way, so that any one else could distinctly see it running, you ought to have looked upon our leaving you on the wayside with perfecfcoolness; made no effort to go, and sued us for our breach of the contract of carriage. No matter how slow the motion of the train was, nor how little danger in getting on was apparent to you, or what the state of your mind caused by our wrongful act, it is not a question for a jury under the circumstances, but the law holds you guilty of culpable negligence in the attempt to board the train, and we are allowed to go free. This is too stringent a rule for the case. Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do, under all the circumstances surrounding the particular case: Shearman & Redfield on Negligence, § 7; Kay v. Penna. Railroad Co., 15 P. F. Smith 273. Instead, therefore, of the rule laid down by the learned judge, he should have left it to the jury to say, under all the circumstances in evidence, whether the danger of boarding the train, when in- motion, was so apparent as to have made it the duty of the plaintiff to desist from the attempt. There is no objection to the court’s assisting the jury in the performance of their duty, by reminding them of the danger of boarding a train in motion, and the caution and care that passengers should use, as well as of the duties of the carriers, and the influence of their wrongful acts in producing the catastrophe. But railroad companies are bound to remember that they owe duties to the public, for whose benefit their charters have been granted, and therefore should not be lightly loosed from the effects of their bwn wrongful acts. We are of opinion the court should have left the question of negligence on the part of the plaintiff to be determined by the jury upon the circumstances, and under an instruction less stringent and binding as to the duty of the plaintiff.

Judgment reversed, and a venire facias de novo awarded.