text:
    Steel’s Appeal. Kulp’s Estate.
    1. The Orphans’ Court, upon the petition of the widow has jurisdiction to award an inquest to make partition of the real estate of an intestate between the widow and the sole heir of the intestate, or between the widow and the alienee of the heir, and may proceed to decree a sale, and under it to secure the widow’s interest upon the property by making it a charge thereon in the hands of the purchaser.
    2. A mortgage or other encumbrance placed upon the premises by the heir or his alienee, after the death of the intestate, cannot affect the title passing under the Orphans’ Court sale.
    February 6th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Philadelphia, county: Of January Term 1878, No. 116.
    Appeal of Robert Steel from the decree of the court requiring him to make specific performance of his contract as a purchaser at Orphans’ Court sale under certain proceedings in partition.
    Abraham Kulp died intestate in July 1870, leaving a widow, Sarah R. Kulp, and one-child, Sarah A., married to Nathaniel A. Large. At his death he was seised of a messuage and tract of land in Germantown, containing about twelve acres. On the 28th of June 1873, Large and his wife conveyed the premises to one Bruner, who, by deed bearing the same date, re-conveyed them to Lai’ge himself. In February 1876, the widow and administratrix, Sarah R. Kulp, presented a petition to the Orphans’ Court, setting forth the foregoing facts, and praying for an inquest to make partition of the premises between her and Large. The court ordered an inquest of partition, who made return that the premises could not be parted or divided without spoiling, and valued the same at $>18,000, and the widow’s interest at $6000, which return was duly confirmed by it, and a rule granted to accept or refuse. Large excepted to so much of the return of the inquisition as assumed to pay the amount of the widow’s dower. On the 8th of July 1876, the court dismissed this exception, and confirmed the return absolutely; and after reciting that Large, the owner, had neglected to appear, either to accept or refusé, the court granted an order of sale in the usual form, with a provision that one-third of the purchase-money should remain charged on the premises during the life of the widow, the interest thereon to be paid to her.. The premises, under this order, were exposed to public sale on the 24th day of April 1877, when Steel, the appellant, became the purchaser thereof for the sum of $9200.
    On the 29th of September 1877, the widow filed a petition, setting forth these facts, and praying for a decree for specific performance against the appellant, who, on the 27th of October 1877, filed his answer,' setting forth that the premises were subject to a mortgage for $11,000, given by Nathaniel S. Large to Henry B. Brown, trustee, one for $1000, given 'by him to Sarah R. Kulp, certain judgments against Nathaniel S. Large, a judgment against Sarah R. Kulp, and the taxes for 1876 and 1877, which encumbrances far exceeded the purchase-money. These encumbrances the appellant submitted were not discharged by the sale, first as to the mortgages, by reason of the Act of Assembly, which expressly preserved their lien; second, because the court had no jurisdiction to make the order of sale under the circumstances. He averred, however, that if the encumbrances could be paid or released he was willing to complete his purchase.
    To this the petitioner replied, first, alleging that the mortgages were discharged by the sale, by reason of the fact that they were not oreated by the intestate, but by the grantee of the heir; and, second, averring jurisdiction in the court.
    On the 8th of December 1877, the cause coming on to be heard on the petition, answer and replication, the court decided in favor of the petitioner, and decreed specific performance, from which the respondent appealed to this court.

      Henry Wharton, for appellant.
    — The question is the simple one, whether in proceedings in partition instituted by a widow the court has jurisdiction to go on and order a sale in case of refusal to take at a valuation. We contend that the Act of March 29th 1832, Purd. Dig. 433, pi. 136, does not authorize anything more than a valuation and charge of the widow’s interest on the land. What purpose can be served by a sale under these circumstances ? There is but one heir, and the only result is, after the conversion, to leave the widow’s share still charged on the land, as it would have been if no sale had been made. Why the needless expense of a sale, merely to do what the sole heir could have done himself?
    The Act of 1832 is clear that though the widow may initiate the proceedings, as her interest is pro tanto involved, where no partition can be made in kind her agency ceases: Painter v. Henderson, 7 Barr, 50.

      Greorge W. Thorn, for appellee.
    — We contend that under the provisions of the Act of 1832, the Orphans’ Court has jurisdiction to award an inquest to make partition between the widow and the aliene.e of the heir-at-law upon the petition of the widow. There may be a partition between the widow and an only child: Bishop’s Appeal, 7 W. & S. 251. And the alienee of the heir may have partition: Stewart’s Appeal, 7 P. F. Smith 241. It was competent also for the court to order the sale of the premises when the alienee of the heir refused to accept them at the valuation fixed by the inquest: Act 29th of March 1832, sect 42, Purd. Dig. 440, pi. 170; Act of 25th of April 1850, Purd. Dig. 441, pl. 174. Painter v. Henderson is not in point. It determines merely that the widow cannot elect to take land at the valuation.
    It may be conceded that under the authorities a widow may not take land at the appraisement, but how does that affect her right to recover her share in her husband’s estate, given to her by the statute ? Her estate, under our law, is not dower, but an interest in lieu of it, under the Statute of Distributions. How may she enforce her right ? The statute says by petition to the Orphans’ Court for an inquest to make partition of her husband’s real estate, and if that cannot be divided without prejudice to or spoiling the whole, then it shall be sold, and her share charged on the land, and the interest thereof paid to her annually during life, and at her decease the principal to the parties legally entitled thereto.
    February 18th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— The Act of March 29th 1832 expressly gave to the widow of an intestate the power to apply to the Orphans’ Court of the proper county for partition of the real estate of the decedent. It has been held that the widow’s share may be set out in kind to her for life; though she cannot accept under an appraisement or a partition without allotment to her: Bishop’s Appeal, 7 W. & S. 251; Painter v. Henderson, 7 Barr 48. Yet, having the right to apply for partition, it is clear, jurisdiction taken under her petition is not lost. Her right to petition exists, where there is but a single lineal descendant: Bishop’s Appeal, supra. The proceeding, therefore, must be prosecuted to the end, so as to give to her the right she seeks to have enforced, to wit: a charge upon the real estate in the hands of the heir, or, if he will not accept, in the hands of a purchaser under an order of sale. If this cannot be effected, her remedy by petition for partition would be useless and illusory; for it is seldom an estate can be so divided as to set apart a portion of it to the widow for life. Nor does it make any difference, since the Act of 20th April 1869, whether the decedent died testate or intestate, a widow refusing to take under the will being authorized to proceed for her share under the intestate law, in lieu of dower: 1 Brightly 530, pi. 10, 11. This act expressly directs the proceeding to go on to a sale, under her application, thus confirming the interpretation given to the Act of 1832. See, also, Neeld’s Appeal, 20 P. F. Smith 113; Coates’s Appeal, 29 Id. 235. It is clear the Orphans’ Court had jurisdiction and power to decree a sale, and under it to secure the widow’s interest upon the property, according to the provisions of the Act of 1832.

It is evident that a mortgage or other encumbrance placed by the heir or his alienee, after the death of the intestate, upon the premises, cannot affect the title passing under the Orphans’ Court sale. The law makes express provision for a distribution of the proceeds of the sale among lien creditors.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Lawrance versus Borm.
    The affidavit of defence law does not conflict with the provisions of the constitution which guarantee the right of trial by jury.
    February 6th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 129.
    Assumpsit by Charles Borm against Edward L. Lawrance upon two pi-omissory notes. Plaintiff filed copies of the notes, when defendant in an affidavit averred that since the re-organization of the courts under the constitution of 1873, there is no authority in the court to enter a judgment for want of a sufficient affidavit of defence. The court held this affidavit insufficient, and entered judgment for plaintiff, which was the error assigned.

      Edward 8. Lawrance, p. p., for plaintiff in error,
    contended at great length and quoting largely from the constitutions of the various states, that the right of trial by jury was guaranteed to citizens by the constitution of the United States and of the states, and that the affidavit of defence law was an abridgment of that right.
    No paper-book nor argument contra.
    February 18th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— The elaborate and exhaustive argument of the plaintiff in error certainly establishes the right of trial by jury as one of the inestimable privileges of the citizens of this free state. Coming down to us from the Proprietary himself, brought by him from England, and preserved in all the forms of government under which the freemen of Pennsylvania have lived, and made by them a fundamental article in their Declaration of Rights, it becomes us to see that it is not impaired. But while the sacredness of this reserved right cannot be impaired by the legislature, we are unable to see that the law in question does impair it. Clearly, if a defendant in an action presents no defence to be tried by a jury, he cannot claim that his privilege is denied him. What is the affidavit of defence but a special plea made under oath ? By this means the defendant presents the facts of his case for the consideration of the court. Now, at no time in the history of civil proceedings has it ever been held that the trial by jury involves the right of the jury to decide the law of the case. A plea in abatement, a plea puis darrien continuance, and other cases provided for by the rules, which the courts are authorized to establish to govern the practice before them, must be put in under oath. So rules governing the evidence to be submitted to a jury often require an oath in support or denial of the matter alleged. There cannot be an objection, therefore, to the fact that the party is obliged to state his plea, or his defence, under oath. This is but a means to prevent delay by falsehood or fraud. Nor can it be objected that when all the facts have been stated by a defendant, which he either knows or is informed of, believes and expects to be able to prove, the court decides the law arising upon the facts thus stated. This is no more than the court always does upon a demurrer, a special verdict, a nonsuit, or an issue in equity. And when a case is tried before a jury the court must decide upon the law governing the evidence or the case itself. It is a misconception, therefore, of the right of trial by jury to suppose that it draws the pleadings, no matter what their form, from the court to the jury. A jury tries only issues of fact, and the court must govern the making up of the issue. The affidavit of defence is only a modern but valuable mode of making up the issue for the jury. And when, on a statement of all the facts a defendant can conscientiously swear to, the court finds that the law upon these facts is against him, clearly, he has no right to go before a jury. The court has then done no more than it would have a right to do by instruction to the jury, when all the evidence is in, with this advantage to the defendant, that by his affidavit he has made the evidence to support his own case.

We cannot perceive any collision between the affidavit law and the right nf trial by jury.

Judgment affirmed.


text:
    Kensington National Bank versus Yerkes, Def’t, and the Wyoming Ins. Co., Garnishee.
    1. Where in the body of a policy of insurance it is stipulated that payment is to be made after notice, proof and. adjustment of the loss “ in conformity to the annexed conditions,' the conditions printed on the back of the policy, although unsigned, form a part of the contract of insurance.
    2. 'Where one of these conditions provides, that “ should, during the life of this policy, an encumbrance fall * * * upon the property insured, sufficient to reduce the real interest of the insured in the same to a sum equal to or below the amount insured * * * the policy shall be void,’’ and the insured confesses a judgment for an amount in excess of the value of the property, an encumbrance falls within the moaning of the terms of the policy, and it is thereby avoided.
    February 6th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1875, No. 84-J.
    Attachment execution sur judgment, obtained by the Kensington National Bank against Charles T. Yerkes, defendant, which attachment was served upon the Wyoming Insurance Company, garhishee. Plea, nulla bona.

    The insurance company had insured for Yerkes certain real estate in Philadelphia, which was subsequently destroyed by fire. The bank claimed this insurance money. The insurance company defended on the ground that the policy was void by reason of the seventeenth condition of their policy, which was printed on the back of the policy and formed part, as they claimed, of the “ conditions annexed,” referred to in the body of the policy, wherein it was stipulated that the loss should be paid sixty days after notice, proof and adjustment thereof, “in conformity to the conditions an-, nexed to this policy.”
    The seventeenth condition reads as follows :—
    “ The insurance by this policy shall cease at and from the time the property hereby insured shall be levied on, or taken into possession or custody under any proceeding in law or equity; and should there, during the life of this policy, an encumbrance fall or be executed upon the property insured, sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then and in that case the policy shall, be void.”
    The only evidence on this point was that of Yerkes, the defendant, who testified “ that the insured property was burned in August 1872; there was a total loss. * * The value of the property was $60,000. * * No levy was ever made upon the property. * * I owed the debt to the plaintiff of $148,614.03, for which it held the judgment against me.”

      It did not appear that Yerkes ever gave notice to the company of the existence of this judgment, and no levy was ever made upon the property under it.
    The insurance company offered no evidence, and the court instructed the jury “ that under the seventeenth section of the conditions of said policy they must find for the garnishee.”
    This instruction was the error assigned by the bank, which took this writ.

      A. Sidney Biddle and B. O. McMurtrie, for plaintiff in error.
    —The conditions printed on the back of a policy are no part of the contract of insurance ; it is not necessarily incorporated into the contract unless expressly so stipulated. If it was a question of doubt as to what the contract between the parties was, it should have been at least left to the jury to determine whether the insured assented to the conditions, without which express assent they could form no part of the contract. It is well settled that where a condition restricting the liability of a carrier, who is an insurer, is printed upon the back of the evidence of the contract, the ticket, or bill of lading, it can, under no circumstances, unless by the terms of the contract itself, made a part thereof, be considered more than a mere notice limiting the common-law liability ; and the defendants, upon whom the burden of proof is cast, must, in such cases, affirmatively show that the notice was brought to the attention of the party to be bound by it: Henderson v. Stevenson, House of Lords, on appeal from the Court of Sessions in Scotland, 27 L. T. R. N. S. 709; Jefferson Ins. Co. v. Cotheal, 7 Wend. 80; Kimball v. Railroad Co., 26 Vt. 247; Adams Express Co. v. Haynes, 42 Ill. 89; Railroad Co. v. Hale, 6 Mich. 243; McMillan v. Railroad Co., 16 Id. 79; Limburger v. Westcott, 49 Barb. 283; Moses v. Railroad Co., 4 Foster (N. H.) 71; Nevens v. Steamship Co., 4 Bosw. (N. Y.) 225; Perry v. Thompson, 98 Mass. 249; Bean v. Green, 12 Me. 422; Stevenson v. Express Co., 21 Wis. 405; Bank v. Champlain Trust Co., 23 Vt. 186; C. & A. Railroad Co. v. Baldauf, 4 Harris 67; Verner v. Sweitzer, 8 Casey 208: Beckman v. Shouse, 5 Rawle 188.
    Even if the endorsed conditions were part of the contract of insurance, the one alleged to have been broken was nothing more than a promissory stipulation, in the nature of a representation, and the judge should have left it to the jury to decide whether the breach of this representation had increased the risk, with the instruction that, if it had not, the breach of the condition was no defence: Pawson v. Watson, Cowper 785; Alston v. Ins. Co., 4 Hill 329; Burritt v. Ins. Co., 5 Id. 188; Ins Co. v. Monniniger, 18 Ind. 359.
    The condition relied on is a limitation of or an exception to the contract, and, therefore, to be strictly construed. It does not avoid the contract by the existence of an encumbrance, but by such a use of an encumbrance as reduces the real interest of the insured. The words are taken from New England policies, where they mean a ■levy or sale dividing the title. To apply them to what is a mere security for the debt of the insured, is fio ignore entirely the qualification that his interest shall be reduced. His interest on property is not lessened by the fact that it is charged with his debts. To have this effect the debtor must be hopelessly insolvent.

      Samuel Dickson and J. O. Bullitt, for defendant in error.—
    Deliver v. The State Mutual Insurance Company, 2 Wright 130, ruled that “ conditions annexed to a policy of insurance have the same effect as if they were incorporated in apolicy.” See also Fire Association v. Williamson, 2 Casey 196; Trask v. Insurance Co., 5 Id. 198; Inland Ins. Co. v. Stauffer, 9 Id. 397. A like rule exists in England and in most of the states.
    The liabilities of common carriers rest upon the custom of the realm and the duties they owe the public, independently of contract stipulations; whereas, as'was said by Woodward, J., in West Branch Ins. Co. v. Helfenstein, 4 Wright 289, 296, “a policy of insurance, with all its clauses, conditions and stipulations, is the law of the relation between insurers and the assured, by which their mutual rights and liabilities are to be defined and measured.”
    The ruling of the court below is sustained by the decision of this court, upon a condition identical with this one, in the case of Brown v. The Commonwealth Mutual Ins. Co., 5 Wright 189.
    February 18th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— We think the conditions printed upon the policy form a part of its terms. Not only do they, in fact, appear upon the instrument itself, accepted by the assured, and presumably were noticed by him, but they are referred to in the body of the policy, which declares that payment is to be made sixty days after the notice, proof and adjustment of the loss, “in conformity to the conditions annexed to this policy.” The assured was thus referred to the “annexed conditions,” in order to find those affecting the payment of his loss, and necessarily must discover the others in doing so. It would be going too far to say that he did not accept his policy affected by the conditions printed upon it, and thus referred to. Under the 17th condition the policy ceases ipso facto, when the insured property is levied upon, or taken into possession or custody, under any proceeding in law or equity. The next clause is, “ and should there, during the life of this policy, an encumbrance fall or be executed upon the property insured, sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then and in that case the policy shall he void.” The former clause having relation to an act of law, this is intended to protect the company against the. act of the assured himself. Hence, if he suffer a judgment to be entered against him, the encumbrance falls, and if he executes a mortgage, it is executed upon the property, and he must give notice and obtain consent; or, otherwise, if the encumbrance gives another a right, and lessens his own interest in the property to a sum not exceeding the amount in the policy, he forfeits his policy.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Montgomery’s Appeal. Wharton’s Estate.
    1. While, as a matter of convenience, the compensation of a trustee or executor may be arrived at by the way of a percentage on the amount of receipts and disbursements, the proper and more usual course is to ascertain what the services of the trustee have been actually worth, and to award a fair and just compensation therefor.
    2. A trust company, which by law was exempted from liability for any depreciation of stocks while in their possession, charged, and the court below allowed, five per cent, commissions on §41,905, the’whole estimated value of an estate of which the company were executors. This estate, with a nominal exception, passed to the residuary legatee at its appraised value. It consisted wholly of stocks and loans, only §4000 of which were converted into cash when the executors' account was filed. About §5000 of debts were paid, and the stock dividends and interest on loans collected. Held (reversing the court below), that §500 and a counsel fee of §100, were sufficient compensation for these services.
    3. The executors were also trustees under the will as to §20,000 of the estate for a particular purpose. Held, that they will be entitled to an additional allowance of §200, when said §20,000 of assets are converted into cash and passed to the credit of the trust estate; but this allowance is not to be credited upon their account until such conversion is made.
    February 7th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1876, No. 102.
    ■ Appeal of John T. Montgomery and Alida G., his wife, from the decree of the court in the matter of awarding commissions to the executors under the will of Edward Wharton, deceased. Edward Wharton died in May 1873, having made a will in which he appointed the Pennsylvania Company for Insurance on Lives, &c., his executors. The testator, after creating certain trusts in favor of Mrs. Kate Lawrence, and of his son, an infant, to the extent of $20,000, bequeathed the residue of his estate to his sister, Mrs. • Alida G. Montgomery, one of the appellants. .The estate, consisting mainly of stocks, was appraised at $34,460.75, which was subsequently increased by interest, dividends, &c., to $42,385,93, at the time of filing the account.
    The executors filed their account on the 16th June 1874, in which they took credit for various payments, amounting to $2552.95, and charged themselves with unconverted assets in their hands, amounting to $37,304; they also took credit for the sum of $2095.26, as commissions due them as executors, being five per cent, on the entire estate which had come into their hands at that date. They subsequently filed a supplemental account, in which they deducted as further commissions five per cent, on all income collected. Objection to these commissions was raised before the auditor, as appears in his report, who sustained the objections, and awarded the accountants the sum of $500, in full compensation for their services as executors, and surcharged them with interest at the rate of four per cent, on the amount retained by them as commissions. To this reduction of their commissions the accountants excepted, and their exceptions were sustained by the court below, and a decree entered recommitting the report to the auditor, with instructions to allow the commissions as claimed; to which decree this appeal is taken.
    A question arose before the auditor as to the nature of the bequest of $20,000, whether it was to be paid directly to Mrs. Kate Lawrence, or whether it was to be held by the executors as trustees. The auditor decided in favor of the direct payment to Mrs. Lawrence; to which finding both the appellants and appellees excepted, and their exceptions were sustained in the court below, and the appellees continue to hold the said fund in trust.
    The auditor, inter alia, reported: “ The whole difficulty arises from the mistaken view that commissions are to be'paid as commissions, not as compensation for labor, care and responsibility. Quoting from Harland’s Accounts, 5 Kawle 330, the language substantially used by this court, he proceeded:—
    “It is in view of this decision, the facts above referred to and the peculiar fitness of the case in hand for departing from the custom of paying the executors in the form of commissions, that your auditor has determined upon the award of a sum in gross to them for their compensation.
    “In order that your honorable court may the more readily and better understand the whole ground of your auditor’s determination, it will be necessary to refer to some facts appearing in the account and others coming to his notice through the counsel of the parties in interest. An examination of the account will show that the estate, as it came to the executor’s hands, consisted wholly of stocks and a small amount of furniture. The subsequent receipts were only of stock and cash dividends and interest. The debts paid were seven in all, besides the one contested before your auditor; and these debts, he is satisfied from what occurred before him, were paid with the approval and after the examination of the residuary legatee, who also took the furniture at the appraised value. When the original account was filed, none of the stocks had been converted into cash, but the supplemental account shows the sale of some, and under the decision above made with reference to the $20,000 legacy, in will be necessary to convert enough of them to provide that fund. It appears then that all but about $16,000 worth of the stocks have been or will have to be converted into cash by the executors.
    “What, under the circumstances, is a proper compensation to the accountants for ‘ their responsibility incurred * * * and the sum of the labor expended ?’ It may be proper here to say that if they seem to have incurred a risk in not changing stock into a legal investment, they did an act for which they cannot be compensated. It was decided in Stearley’s Appeal, 2 Wright 525, that a trustee cannot claim compensation for services self-imposed, and resulting from his own wrong; and it is certainly quite as true that he cannot be compensated for a risk that he should not have taken. On the other hand, if the accountants should have changed the stock into legal investments, and did not, they cannot recover for'services which they should have performed, but did not render. It was said by Strong, J., in McOausland’s Appeal, 2 Wright 470, that ‘ commissions are given as a compensation for labor and responsibility, and where neither the one has been performed nor the other incurred, there is nothing to be compensated.’ And, indeed, the principle laid down in this case would seem to deny all commissions to the accountants (if we had adopted that mode of measuring their compensation) on such of the stocks as have not been and will not have to be converted into cash.
    “ Under all the circumstances of the case, the almost total absence of authorized responsibility and the very slender services performed, your auditor is of the opinion that the accountants would be liberally compensated by the sum of $500, and this he accordingly awards them. The credits claimed, therefore, of $2995.26 and $11.48, are refused, and it is also ordered that the accountants allow interest on these sums at the rate of four per cent, from the time they were credited with them respectively. With these exceptions, the credits claimed in the account and supplemental account are allowed.”
    In sustaining the exceptions to this report filed by the executors, the court, Hanna, J., in an opinion, said:—
    “ The auditor has examined with great care the questions presented to him, and conscientiously performed the duties assigned to him, but we are obliged to disagree with his views upon the subject now brought to our notice.
    “ In Harland’s Accounts, 5 Rawle 330, Gibson, C. J., says, that the compensation of accountants, though usually awarded in the form of commissions, is not determinable by any established practice or rule, being graduated to the responsibility incurred, the amount of the estate, and the sum of the labor expended. Recognising the principle thus announced, executors and other trustees, for the faithful performance of the ordinary duties of the trust, have generally been compensated by a commission of 5 per cent, upon the amount of the personal estate, and 2-J per cent, upon the proceeds of real estate. This has become the established practice and rule. And where additional trouble has been occasioned in the settlement of the estate, an increased commission has been frequently allowed.
    “In Robinson’s Estate, 5 Phila. Rep. 99, it was decided by this court, Ludlow, J., in view of want of proper care and use of certain moneys of the estate by the executor, though under a claim-of right, that his commissions should be reduced to 3 per cent., and by reason of his responsibilities for certain securities, investments of the testator, he was allowed 2-J per cent, as custodian of the certificates. In the late case of Eshelman’s Appeal, 24 P. F. Smith 42, the estate, consisting of realty and personalty, amounted to about $75,000, and a commission of 5 per cent, was allowed upon the personalty, and 2J per cent, upon the proceeds of the real estate. We think the general rule mentioned applicable to the present' estate. There were no extraordinary services performed, but, as in Eshelman’s Appeal, it was ‘ attended with the quantity of trouble, care and responsibility, which the settlement of intestates’estates ordinarily imposes.’ The executors here are entitled to the same compensation as would be allowed individuals. That they are a corporation does not create any distinction. The same duties are required, and similar responsibilities incurred. Nor can they then be expected to execute trusts without just compensation. They incur expense for reliable officers, clerks and other employees; are subject to taxation of their real and personal estate, and the individuals composing the corporation are entitled to a return for the risk of the capital invested, and liable for the honesty and careful management of their employees.”

      John Oadwalader, Jr., for appellants.
    — These securities were investments of the testator, and under the Act of Assembly of April 6th 1870, Pamph. L. 986, were held by this company without any responsibility for their depreciation. The commissions demanded by the executors were excessive : Pusey v. Clemson, 9 S. & R. 204; Walker’s Estate, Id. 223; Stevenson’s Appeal, 4 Whart. 98; Whelen’s Appeal, 20 P. F. Smith 431. The rate of commission is not only excessive, but upon the $20,000 bequeathed to the appellees as trustees for testator’s son, no commission on the capital is chargeable until the settlement of the trust account. In awarding a gross sum as compensation the auditor is sustained by Harland’s Appeal, supra, and the more recent case of Carrier’s Appeal, 29 P. F. Smith 234.

      John Gr. Johnson, for appellees.
    — Executors, in Pennsylvania, are allowed a commission of 2§ per cent, on estates, large or small, for the mere responsibility of receiving and paying over personal property. The ordinary trouble of administration entities them, where the aggregate of the estate is less than $100,000, to an additional compensation of 2§- per cent., or five per cent, in all: Stevenson’s Estate, supra; Pusey v. Clemson, supra; Gable’s Appeal, 12 Casey 395; Skinner’s Estate, 4 Phila. Rep. 189; Eshelman’s Estate, 24 P. F. Smith 42.
    There is nothing in the present case to take it out of the ordinary rule. The estate was not invested in legal securities, but in' hazardous stocks. A few of these were never sold. The major part of them were held, until the last moment, and then were sold at an advance upon the inventory price, and before the fall which thereafter followed. The property required the exercise of a wise judgment by the executors.
    An allowance of less than three per cent, is only under very exceptional circumstances: Whelen’s Appeal,supra; Stevenson’s Estate, supra; Pusey v. Clemson, supra; Walker’s Estate, supra; Snyder’s Appeal, 4 P. F. Smith 69; McFarland’s Estate, 4 Barr 149; Eshelman’s Estate, supra.

    The fact that the executors may be obliged to retain the $20,000 legacy until security is entered, does not prevent them from claiming the ordinary commission upon their administration.
    March 11th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

The compensation of a trustee, of any character, may be arrived at, as a matter of convenience, by the way of a percentage on the amount of receipts and disbursements. But, after all, on all authority, it is a question, not of percentage, but of compensation. When the court has fairly responded to the interrogatory, how much has the trustee earned ? it has discharged its whole duty in the premises. It, therefore, comes to nothing to say, the percentage is large or the percentage is small as compared with the estate, if the executor has received neither less nor more than what his services are worth.

This is in effect but a re-statement of the doctrine of Harland’s Appeal, 5 Rawle 323. Gibson, C. J., in speaking of this matter, says, that, though compensation is “ usually awarded in the form of commission, the rate is not determinable by any established practice or rule, being graduated to the responsibility incurred, the amount of the estate and the sum of the labor expended. It may be awarded even in a gross sum, according to a common practice in the country, which I take to be the preferable one, as it necessarily leads to an examination of the nature, items and actual extent of the services, which the adoption of a rate per cent, has a tendency to leave out of view.” So it is said by Strong, J., in McCausland’s Appeal, 2 Wright 466: “commissions are given as a compensation for labor and responsibility, and where neither the one has been performed, nor the other incurred, there is nothing to be compensated.” This same general idea runs through all the cases and it is useless to enumerate them. Whilst a percentage is constantly spoken of and used because of its convenience, yet, it is compensation, nothing more or less, that is steadily kept in view.

Our present inquiry is, was the allowance by the Orphans’ Court to the Pennsylvania Company for the Insurance on Lives, &c., a fair and just compensation for the services rendered by it, as executor, in the settlement of the estate of Edward Wharton, deceased? A review of the facts as presented to us by the auditor and the accounts filed by the appellee, warrant us in saying it was not; that it was much more than was earned. Five per cent, was charged and allowed on forty-one thousand nine hundred and five dollars, the whole estimated value of the estate.

This estate, excepting one hundred and six or seven dollars’ worth of furniture passed to the residuary legatee at the appraised value, consisted wholly of stocks and loans ; and of these an amount not exceeding in value four thousand dollars, had been converted into cash at the time the accounts were filed. Debts and expenses of Various kinds, amounting to about five thousand dollars, had been, at that period, paid, and the stock dividends and interest on the loans had been collected. If to these we add the ordinary services of proving the will, appraising the assets, filing the inventory, &e., we have the sum total of all that was done by this corporation for this estate. When, in connection with this meagre array of services, we consider the fact that, by an Act of Assembly, this corporation is relieved of all responsibility, which otherwise might attach to it, from a depreciation of the stocks whilst in its possession, we cannot but think that it was far overpaid in the charge and allowance of two thousand and ninety-five dollars in addition to one hundred dollars as a counsel fee. We incline, rather, to approve the auditor’s award of five hundred dollars, with the counsel fee, as a more fair and just compensation. As we are not certainly informed whether, since the filing of the accounts, now in hand, the executor has converted stocks sufficient to meet the legacy of Mrs. Lawrence, we may add that, if this has been done, or if not so done, when such conversion is made and the proceeds thereof passed to the credit of the trust estate, an additional allowance may be made, to this executor, in a sum not exceeding two hundred dollars, to be paid out of the residuary estate. It is to be understood, however, that this is to be credited on the executor’s account as of the date when the conversion of the stock into cash has been accomplished and the proceeds passed to the trust; that it is not to be dated back so as to anticipate interest due to the estate, for this is a method of anticipating the compensation which may result from future services that is not commendable.

The decree of the Orphans’ Court, so far as it embraces the compensation of the executor, is now reversed, at the costs of the appellee, and the report of the auditor is restored and confirmed.

Paxson, J., dissented.


author: Mr. Justice Trunkey

text:
    Girard Life Ins. Co., Adm’r of Edward Magarge, versus Mutual Life Ins. Co. of New York.
    1. Where it is the general practice of mutual life insurance companies to receive overdue premiums, if a premium is tendered within a reasonable time after it has become due and while the insured is in his usual health, the'policy will not be forfeited.
    2. Where the company has declared a policy forfeited, and refused to receive a premium, the fact that the insured subsequently failed to pay premiums, as they fell due, will not affect the right to recover on the policy.
    February 8th 1878.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1876, No. 116.
    Case by the Girard Life Insurance and Trust Company, administrators of Edward Magarge, deceased, against the Mutual Life Insurance Company of New York. Magarge insured his life in the defendant company on April 14th 1863, for $10,000, and agreed to pay the quarterly premium of $51, upon the 14th days of January, April, July and October of each year. The following were among the provisions' of the policy :—
    “ If the said premiums shall not be paid on or before the days .above mentioned for the payment thereof, at the office of the company, * * * then in every such case the said company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine.
    “It is also agreed that in every case when this policy shall cease and determine, or become or be null and void, all payment thereon shall be forfeited to this company.”
    Magarge paid all the premiums up to and inclusive of the 14th of October 1870. The premium falling due on the 14th of January 1871, he neglected to pay until the 16th, when the company refused to accept it, and declared the policy forfeited. The defendant is a mutual company, and on the 1st of January 1871, as was their custom, had declared a dividend upon policies then in force out of the surplus of the preceding year. At the time of the forfeiture of Magarge’s policy this dividend was not apportioned, but it was afterwards ascertained to be $67.70. It was usual to apportion these dividends about the middle of February. On the day of the forfeiture Magarge was in his accustomed health. He died in February 1872. No tender was ever made of the premiums accruing from the 14th of January 1871 to the day of his death. At the trial, before Lynd, J.,’ it was shown that the company were in the habit of sending notices to the insured of the accruing premiums, but no notice was sent of the premium of January 14th 1871. It also appeared that on two previous occasions Magarge had failed to pay the premium on the day it fell due, and that when tendered by his clerk, Rees, two or three days subsequently, after an inquiry if Magarge was in his usual health, was accepted. The plaintiffs also offered evidence to show that it was the general practice among life insurance companies to receive premiums which were a short time overdue, even to thirty days; that this practice obtained if the insured was in his usual health, and there was no good reason to forbid, and that the practice was not considered as an act of grace or privilege to the insured, but for the interest of the company. Upon the foregoing facts the court, on motion, granted a nonsuit, which the court in banc subsequently refused to take off. This action was assigned for error.

      John J. JELidgway, Jr., and Daniel Dougherty, for plaintiffs in error.
    — If it was the custom to send notices, the insured had the right to expect the continued observance of the custom : Mayers v. Ins. Co., 4 Big. Ins. Rep. 62; Helme v. Ins. Co., 11 P. F. Smith 107. After the tender of the premium, on the 16th day of January 1871, and the refusal to accept, no subsequent tender was necessary: Bird v. Ins. Co., 2 W. N. C. 410. It would be inequitable to permit a forfeiture, when the defendant company had in its hands fund’s belonging to the insured more than sufficient to pay the premium, simply because he did not give them notice to so apply them. The ordinary rule of appropriation should govern, that when neither party has made an appropriation, the law will make it according to the equity and justice of the case, and most beneficially to the parties: Insurance Co. v. Grigsby, 2 Court L. J. (Ky.) 123; Story’s Eq. Jur. 479, 481; United States v. Kirkpatrick, 9 Wheat. 720; United States v. Wardwell, 5 Mason 82; Postmaster-General v. Furber, 4 Id. 333; Gass v. Stinson, 3 Sumner 99; United States v. January, 7 Cranch 572; Harker v. Conrad, 12 S. & R. 301; 1 Am. Lead Cas. 123; Am. Law Mag. (Phila.), April 1843, pp. 31, 33.

      Henry J. McOarthy and William A. Porter, for defendant in error.
    — Prompt payment of the premium is of the substance of an insurance contract: Robert v. New England Mut. Life Ins. Co., Disney’s Rep. 355; 1 Bigelow’s Life and Accident Ins. Rep. 634; Mut. Benefit Life Ins. Co. v. French, 2 Cincinnati Sup. Court Rep. 321; 4 Bigelow’s L. & A. Ins. Rep. 369.
    Where a policy is forfeited, it can only be revived or renewed by an express agreement of the insurers: Diehl v. Adams County Mut. Ins. Co., 8 P. F. Smith 452; Carroll v. Charter Oak Ins. Co., 38 Barb. 402; Robert v. Ins. Co., supra. Agents of the company have no authority to waive forfeiture: Mentz v. Lancaster Fire Ins. Co., 29 P. F. Smith 475; Bouton v. Am. Mut. Life Ins. Co. 25 Conn. 542; Busby v. North Am. Life Ins. Co., 4 Bigelow’s L. & A. Rep. 116; Catoir v. The Am. Life Ins. & Trust Co., 4 Vroom 487; 1 Bigelow’s L. & A. Rep. 336; Koelges v. Guardian Life Ins. Co., Id. 621; 2 Lansing 480; Williams v. Washington Life Ins. Co., 4 Bigelow’s L. & A. Ins. Rep. 56; Roehner v. Knickerbocker Life Ins. Co., 4 Daley 512.
    Where a policy of insurance contains an agreement for the continuance of the policy in force until the decease of the person whose life is insured, provided that the assured shall duly pay or cause to be paid annually, on or before a specified day in each year, a certain premium, payment upon the day specified is a condition precedent, and, unless performed, the policy is no longer in force. ‘
    February 25th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

The only assignment considered well founded is the seventh, which charges error in entering nonsuit. It has not been alleged that the plaintiff’s case was defective in proof on any point other than evidence to relieve from the effect of non-payment of premiums. In determining the rightfulness of a nonsuit, for want of sufficient evidence of the claim, all that was received must be taken as true, and every inference of fact, which the jury might draw from it, in favor of the plaintiff, as admitted: Smyth v. Craig, 3 W. & S. 18.

The defendants were a foreign insurance company, doing business in Pennsylvania, under her laws relative to such companies. Their licensed agent, by provision of the statute, has full power and authority to transact their business, either in person or by any subordinate agent or agents appointed by him. His office was in Philadelphia, and his dealings with the assured, within the scope of his authority and the customs of that place relating to life insurance, affect and bind the company as if their principal office were in that city.

The policy is dated April 14th 1863, and contains a condition that if the premium of $51 shall not be paid on the 14th days of April, July, October and January of each year, the company shall not be liable to pay any part of the sum assured, the policy shall be void, and all payments thereon shall be forfeited to the company. Every premium was paid up to and including the one due October 14th 1870. The agent usually sent notices to Magarge of the time payments would be due, and stated therein that they were sent only as a courtesy. Rees usually paid the premiums for Magarge, and on January 16th 1871, at the office of the agent, tendered the money for the premium which had become due on the 14th of that month. The money was refused, and answer made that the policy was forfeited for non-payment of premium. Before that,' on October 16th 1867, and April 16th 1870, he had paid overdue premiums to the agent, who, on an affirmative answer to his inquiry if Magarge was well, took the money and handed over the receipts. Magarge was in his usual health in January 1871.

The memorandum furnished by the company shows that the dividend due to Magarge for each of the four years preceding 1870 was ascertained in February of such year, and for 187 0 in January. It also shows that the first payment of premium out of dividend was in 1868 ; that no dividend was used in such payment in October 1867, nor in April 1870; that the dividends due Magarge on October 16th 1867 amounted to $226.66, and on April 16th 1870 to $92.81. From • Lambert’s testimony, the general dividends were declared at the end of each year, but the sum due to each policy could not be ascertained till several weeks thereafter. It is manifest that if the company did not know the exact sum due on January 14th 1871, as dividend, they knew it exceeded the premium due at that date.

Upon the verity of the testimony of Mr. Ashbrook, the jury would have been warranted in finding that it “ is a custom among life insurance companies to receive premiums, if tendered at any time within thirty days of the time they fall due, provided the insured is in usual health, and that this custom includes policies stipulating for forfeiture in case of non-payment of premium on the day.”

In Helme v. Philadelphia Life Ins. Co., 11 P. F. Smith 107, it was ruled that such a custom curtails the generality of the clause, and shows that forfeiture was not demandable at the day, nor at all, if paid within the thirty days. The extension of time by the custom was likened to days of grace on commercial paper, and to the right of a tenant, after the term named in his lease, to harvest and take his share of the way-going crop.

No vestige of reason is discoverable for refusing the premium tendered the second day after it became due. The company had twice before taken it under precisely similar circumstances, and in entire accord with the general practice. The second was just nine months before the declaration of forfeiture. If the notices were courtesies with forfeit-warning prods, other acts of the company were opiates. If it be said that when the overdue premiums were received, dividends to greater amount were due the assured, so they were at the date of refusal. In the midst of a general usage, to receive premiums after the stipulated day, when-the assured was in usual health, the company, if intending to enforce forfeiture, should not deal with the assured as if recognising the general practice, nor give him a notice with one hand and lull him to sleep with the other.

It was urged on behalf of defendants that payment of the premiums due on January 14th 1871, was a condition precedent, and, also, payment of the premiums after that date falling due before his death’in February 1872, and that equity will not relieve against losses resulting from non-performance of such condition through neglect alone of the sufferer. Be it so; the non-performance was because of defendants’ refusal to take the premium when tendered. They declared the policy forfeited on January 16th 1871, and from that date persisted in treating it as a nullity. On another policy they had given to Magarge, they gave notices, as was their custom, of the falling due of premiums, but none in reference to this. They still say it became void, and that no life was left in it. The assured lost nothing by omitting the farcical act of a formal tender every quarter, while the company insisted the policy was dead. It was not his neglect but their fault that the premiums were unpaid.

When their evidence is heard the case may present a different aspect.

Judgment reversed and procedendo awarded.

Paxson, J., dissents.


author: Mr. Justice Sharswood

text:
    Ingersoll’s Appeal.
    1. Where a will merely provides that on the death of the first taker, “ without issue or without leaving issue,” the devise over shall take effect, the law construes these words to mean an indefinite failure of issue, but they may also be shown by other parts of the will to mean “ issue living” at the death of the first taker.
    2. Testatrix, by her will, bequeathed the residue of her estate to trustees, in trust for her two nieces, their heirs, executors, administrators and assigns, and directed the income to be invested until they reached'the age of twenty-one, and after that the income to be paid to them quarterly, share and share alike, not subject to the debts or control of their husbands, in the event of marriage, and in the event that either of them should die, without issue, then her share should, subject to the trust, go to the survivor and her heirs, and should they or either of them die, leaving issue, the trustees to hold the estate for the uses which may be declared by them or either of them by last will: Held, that the words, ‘‘die without issue,” meant a failure of issue at a definite period, to wit, the death of both of her nieces, and the trust was an active one.
    3. The fact that the testatrix intended, as one of the objects of the trust, to create sole and separate estates for her nieces, then being unmarried, and not in contemplation of marriage, though that object be considered inoperative and void, does not invalidate the trust, if for other reasons it ought to he supported.
    February 4th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkev, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, No. 122.
    The bill in this case was filed by A. D. Campbell and wife, on behalf of the latter, against Charles Ingersoll and John M. Thomas, trustees under the will of Elizabeth Wilcocks. The bill avers that Elizabeth Wilcocks made her will on February 5th 1848, and subsequently two codicils thereto, the last of which was dated in 1862; that in 1863. she died unmarried; that in her will she made the following disposition:—
    “I give and bequeath and devise to Joseph R. Ingersoll and Charles Ingersoll, their heirs and assigns, all the rest, residue and remainder of my estate, real and personal, which I now possess or may die possessed of, in trust for the children of my late brother Benjamin C. Wilcocks, namely, Mary Wain Wilcocks and Helen Julia Wilcocks, for them, their heirs, executors, administrators and assigns; and I direct that the trustees aforesaid shall hold the same, capital and income, until their arrival severally at the age of twenty-one years, and that no part of the same shall be expended for them or for their use during their minority, unless in the opinion of my trustees it shall be necessary to lay out for them any portion of the income, in which case I leave it to their discretion to do so ; and when they arrive severally at twenty-one years of age, the income shall be paid to them quarterly, or at other convenient periods, by my trustees, so that the same may be share and share alike, for their equal and sole and separate use, and not subject to the debts or control of their husbands, in case of their marrying ; and should either of them die without issue, then the share' of the deceased shall go, but still subject to the trust, to the survivor, her heirs, executors, administrators and assigns; and should they, or either of them, die leaving issue, then my trustees shall hold the estate, so left, for the uses which may be declared by them or either of them by last will and testament, or writing in nature thereof; and should both of them die without issue, then I give, devise and'bequeath all the estate included in this, the residuary clause of my will, to my nephew Charles Ingersoll, to him, his heirs, executors, administrators and assigns, free and clear of this trust, which in that event shall cease and determine."
    That testatrix died possessed of certain personal and real estate; that one of her nieces, Helen Julia Wilcocks, married Chandler Robbins, in 1865, and died in 1868, intestate, and without issue; that the other niece, Mary W. Wilcocks, married Alexander D. Campbell, in 1870; that on December 17th 1874, said Robbins and Sarah W. Wilcocks granted and released unto Mrs. Mary W. Campbell, her heirs and assigns, all the part, share and interest, present and expectant, of them, the said Robbins and Sarah Wilcocks, of, in and to the undivided moiety of the estate, real, personal and mixed, of the said Elizabeth Wilcocks, so given and devised to the children of Benjamin C. Wilcocks; that Joseph R. Ingersoll died February 20th 1868, and left surviving him Charles Ingersoll; that for the purpose of appointing a co-trustee, said Ingersoll granted and transferred to J. D. Rodney, all the estate devised to Joseph R. Ingersoll and Charles Ingersoll, in trust for the said Mary W. Wilcocks, in trust to convey to Charles Ingersoll and John M. Thomas, who were to hold the same upon the same trusts as the said Charles and said Joseph R. Ingersoll were to hold them; that said Rodney accordingly conveyed to said Ingersoll and Thomas; that Mrs. Campbell, at the time of the death of her aunt, Miss Wilcocks, was a minor, not contemplating marriage; that the plaintiffs were informed that the trusts were inoperative, and have applied to the trustees to make a conveyance and transfer to Mrs. Campbell, which they decline to do without the direction of the court.
    The prayers of the bill are, for an account, a transfer and conveyance of the real and personal estate.
    The answers admitted the facts, except as to Mary W. Wilcocks contemplating marriage at the time of the death of the testatrix, and averred that the duties of the trust had been performed, and that defendants submitted themselves to the court for such judgment or decree as might be proper. That Mrs. Campbell did not contemplate marriage at the time of the death of her aunt was proved and is not in dispute.
    The court below, Mitchell, J., held that the interest of Mrs. Campbell was a fee simple, and that the trustees should pay over to her whatever amount should be found in their hands to which she was entitled, and that they should make a conveyance in fee simple of the real estate. Subsequently a decree was made that the account filed was a correct account, and that the sum therein, to wit, $759.15, should be paid to Mrs. Campbell, and that a conveyance of the real estate should be made.
    Defendants appealed and assigned for error, the entry of a decree that an account should be taken, and that the personal and real estate should be conveyed and transferred to Mrs. Campbell, discharged from the trust, and holding that the devise and bequest over to the survivor of the nieces of the testatrix, upon death without issue of one of them, were void for remoteness. In holding that the devise and bequest over to Charles Ingersoll, after the death without issue of the survivor of the nieces of the testatrix, were void for remoteness. In holding that the words in the will “ die without issue,” signified an indefinite failure of issue. In holding that that the trust had become executed and the property held under it must be conveyed to the cestui que trust, and in not dismissing the bill.
    This case was first argued on the 7th of February 1877, but a re-argument having been subsequently ordered, came on for hearing on the 4th of February 1878.

      A. Sidney Biddle and B. O. MeMurtrie, for appellants.
    — The whole case turns on the effect of the limitation over in the event of the death of Mrs. Campbell. If that is a remainder, it is nugatory ; if an executory devise, it is valid, and if valid, the trustees must continue to hold the estate for the protection of the ultimate limitation, and to enable the powers to be exercised with regard to it. And the effect of the limitation turns on the meaning to be given to the words defining the event on which it is to take effect. Is it after an indefinite failure or a definite failure of issue ? The appellants contend that a definite failure of issue was intended. It is after a gift in fee simple. The limitation to the survivor of the two original devisees is on dying without issue. That this meant issue then living is proved by the provision for the event of their being issue.
    The issue which is to permit the limitation over to the surviving sister is the same class of persons as that which is to permit the limitation to Mr. Ingersoll. Both or neither include an indefinite class. Both or neither import persons living at the death of the first taker. In the case of the sisters taking by survivorship, the trust is to continue with power to sell, invest, &c. Certainly not for ever and as long as the fee simple lasts. If, however, the words mean an indefinite failure, this power cannot be exercised and the trust was at an end. The trust is, by express terms, to last until it is ascertained that, by reason of there being issue on the death of Mrs. Campbell, the limitation cannot take effect in Mr. Ingersoll. It is certain that the testatrix intended it to last till then. She directs a conveyance then, clear of the trusts.
    Was the word “issue” used in such a sense as to make the limitations possible, or must it be read in such a sense as to make them all nugatory, and turn the whole will into a simple devise in fee simple to the two infant nieces ?
    The existence of a power to sell and invest, and the blending of real and personal estate (both of which occur here) are relied on at great length in Sheets’s Appeal, 2 P. F. Smith 257, as evidence of an intention to reduce the absolute estate to one for life. It is not contended that this is the case here. All that we contend for is, that there being a provision which can take effect as an executory devise, but not as a remainder, there is no reason for construing it to be a remainder for the purpose of destroying it.
    The power to appoint to issue, if any, indicates still that issue then living was intended : Hawkins on Wills 213; Myers’s Appeal, 13 Wright 111; Still v. Spear, 3 Grant 307; Hagerty v. Alright, 2 P. F. Smith 274; Bedford’s Appeal, 4 Wright 22; Doe v. Frost, 3 B. & Ald. 546; Keen’s Appeal, 14 P. F. Smith 268.
    As to personalty the testatrix evidently had in mind the time of the death of the first taker, for she declares, that then the bequest shall fall back to the survivors; and she names the survivors. They were therefore distinctly in her mind’s eye, and not persons unborn or unknown.
    A limitation over by will to survivors or,persons in being, after •the death of the first taker without issue, raises a strong presumption that a testator did not contemplate an indefinite failure of issue: Deihl v. King, 6 S. & R. 32; Eichelberger v. Barnetz, 17 Id. 295; Johnson v. Currin, 10 Barr 498; Moffat v. Strong, 10 Johns. 16; Ranelagh v. Ranelagh, 2 Myl. & K. 441; Massey v. Hudson, 2 Meriv. 133; Turner v. Frampton, 2 Coll. 331; Westwood v. Southey, 2 Sim. N. S. 192; Hawkins on Wills, 1 Am. ed., p. 209; Fairchild v. Crane, 2 Beas. 108; Threadgill v. Ingram, 1 Ired. 1577; Carson v. Kennerly, 8 Rich. Eq. 259; Williams v. Graves, 17 Ala. 62; Birney v. Richardson, 5 Dana 427; Booker v. Booker, 5 Humph. 505; Moody v. Walker, 3 Ark. 148; Mifflin v. Neal, 6 S. & R. 460; Rapp v. Rapp, 6 Barr 45.

      S. S. Hollingsworth, for appellees.
    — The first intention of the testatrix was to give to each of her nieces an estate in fee simple. She gives the residue of her estate to trustees in trust for them, their heirs, executors, administrators and assigns. She then makes a trust for accumulation during their minority, and for their separate use, if they marry. The gift over, on the death of either niece without issue, of her share to the survivor in fee simple, and if both die without issue, to Mr. Ingersoll, “ to him, his heirs, executors, administrators and' assigns,” is plainly intended to reduce the estate given the nieces to a fee-tail, with cross-remainders in tail between them and an ultimate remainder in fee to Mr. Ingersoll, •if both nieces die without issue. ‘ Issue’ is a word of very extensive import. The term embraces descendants of every degree, whensoever existent, and, unless restricted by the context, cannot be satisfied by being applied to descendants at a given period. The only mode by which a devise to the issue can be made to run through the whole line of objects comprehended in the term is by construing it as a word of limitation, synonymous with heirs of the body, by which means the ancestor takes an estate tail: 2 Jar-man on Wills 329; Angle v. Brosius, 7 Wright 187. Words referring to the death of a person without issue, unexplained by the context, and referring to either personalty or realty, import an indefinite failure of issue: 2 Jarman on Wills 418; Caskey v. Brewer, 17 S. & R. 441; Lapsley v. Lapsley, 9 Barr 130; Smith’s Appeal, 11 Harris 9; Hansell v. Hubbell, 12 Id. 244; Potts’s Appeal, 6 Casey 168; Rancel v. Cresswell, Id. 158; Matlack v. Roberts, 4 P, F. Smith 148; Mengel’s Appeal, 11 Id. 248. The word “ then” has been used to introduce the limitation over in the event of the first taker dying without issue: Clark v. Baker, 3 S. & R. 470 ; Caskey v. Brewer, supra; Paxson v. Lefferts, 3 Rawle 59; Heffner v. Knepper, 6 Watts 18; Eichelberger v. Barnitz, 9 Id. 447 ; Sharp v. Thompson, 1 Whart. 139; Rancel v. Cresswell, supra; Haldeman v. Haldeman, 4 Wright 29; Matlack v. Roberts, supra; Ogden’s Appeal, 20 P. F. Smith 501; Mast & Morris’s Appeal, 2 W. N. C. 404. Yet in all these cases the words “ dying without issue” were held to import an indefinite failure of issue. There being, therefore, a limitation over after an indefinite failure, it is void, and there is no ground for sustaining a trust which was not made while the first cestui que trust was contemplating matrimony.
    May 6th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

Several important and interesting questions have been raised on this record, which we do not consider it necessary to discuss and decide, as we are of opinion that it appears upon the will of Elizabeth Wilcocks that by the words, “ die without issue,” she meant a failure of issue at a definite period, to wit, the death of both her nieces. Nothing certainly is better settled than that the intention of a testator, if not contrary to law, shall be carried out in the disposition he may make of his property after death. There are many things which he cannot do, however clearly he may intend it. He cannot create a fee and clog the power of alienation or relieve it from liability for debts. He cannot create a perpetuity by an executory devise after an indefinite failure of issue or at any other future period, which may not be until after a life or lives in being and twenty-one years. But he may give an estate in fee, subject, on certain contingencies, to be reduced to an estate for life with a remainder over, but if those contingencies do not happen, the first gift in fee to stand. It is but an alternative limitation, and such limitations have been long recognised as valid: Fearne on Cont. Rem. 373; Luddington v. Kime, 1 Ld. Raym. 203. This is precisely, we think, what the testatrix meant in this case, and there was nothing unlawful in it. She meant to give her two nieces a fee-simple, but subject to the contingency that if they should both die without issue living at the death of the survivor, then over to her nephew, Charles Ingersoll, in fee. It is undoubtedly true that if she had merely provided that on their death, “ without issue or without leaving issue,” the devise over should take effect, the law would have construed it to he an indefinite failure of issue, and their estate would thereby have been reduced to an estate-tail. But the words “dying without issue or without leaving issue” may always be shown by other parts of the will to have meant “ issue living” at the death of the first taker. In Eichelberger v. Barnitz, 9 Watts 450, the leading case which recognised the general rule in Pennsylvania, the exceptions are acknowledged by Mr. Justice Sergeant, in the opinion of the court, and among them is enumerated: “ When the time at which the devise over is to take effect is expressly or impliedly limited to a particular period, within a life or lives in being and twenty-one years after.” See also Taylor v. Taylor, 13 P. F. Smith 481. In the will before us these words are found three times in the same paragraph within a few lines of each other. In the first two they are evidently used in the sense of a definite failure of issue: “ Should either of them die without issue, then the share of the deceased shall go, but still subject to this trust, to the survivor.” “ Should they or either of them die leaving issue, then my trustee shall hold the estate so left for the uses which may be declared by them or either of them by last will and testament or writing in nature thereof.” It is very evident that in both these cases the testatrix could not have contemplated an indefinite failure of issue at some future period, however remote. When, therefore, she concludes her limitation with the same words, “ should both of them die without issue,” the inference is irresistible that she used the words in the same sense that she had done before. This principle of construction was adopted and applied in Seibert v. Butz, 9 Watts 490, and indeed is so reasonable that it needs no citation of authority to sustain it.

Such being the state of the limitations upon the proper construction of this will, it is clear that the trust created by the testatrix was a living and active trust, important, if not absolutely necessary, to preserve the estate for the ultimate devisees. If it was personal estate, it was important to prevent unwise investments and to relieve the first takers, subject to the contingencies, from being under the necessity of giving security ; and if it was real estate, to preserve it from waste and' dilapidation. It would seriously impair the right of disposition in the owner of property, if he could not, by the appointment of trustees in whom he had confidence, make provision against such consequences. The fact that the testatrix intended also as one of the objects of the trust to create sole and separate estates for her nieces, then being unmarried and not in contempla; tion of coverture, though that object be considered inoperative and void, does not invalidate the trust, if for other reasons it ought to be supported.

Decree reversed, and now it is ordered and decreed that, the bill be dismissed with costs; the costs of this appeal to be paid by the appellees.


text:
    Huntingdon and Broad Top Railroad and Coal Co. versus English.
    Where there is no trust relation between the parties and no obligation to deliver specific stock, the measure of damages for a failure to deliver stock is the market value of the stock on the day it should have been delivered with interest thereon to the time of trial.
    February 8th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, No. 117.
    Assumpsit by Alfred English against the Huntingdon and Broad Top Railroad and Coal Company.
    Defendants pleaded non asswmpserunt.

    The plaintiff having loaned the defendants two hundred shares of Pennsylvania Railroad stock, took from them the following agreement :—
    “ Oeeice Huntingdon and Broad Top Mountain Railroad and Coal Company, Box 2733.
    Es^entsQ Philadelphia, April 13th 1867.
    Received of Mr. Alfred English, two hundred shares of Pennsylvania Railroad stock, to be returned to him on the fifteenth day of June 1867, and we have deposited with him as collateral security for the same' twenty of the consolidated mortgage bonds of this company for $1000 each, Nos. 1094 to 1098, 1256, 1243 to 1247, 1226, 1428 to 1435, inclusive, and do hereby authorize him, upon the non-performance of this promise at maturity, say on the fifteenth day of June 1867, to sell, either at private or public sale, or at the Broker’s Board, the above-named bonds at the then market price, without further notice, and apply the proceeds, or as much thereof as may be necessary, to the payment or replacing of the said two hundred shares of stock and all necessary expenses and charges, holding the company responsible for any deficiency or paying the company the overplus, if any.
    Signed L. T. Wattson, President.”
    It appeared, at the trial, by the testimony of the plaintiff, that the defendants at the same time agreed to pay him what he called a “commission,” viz., interest at the rate of eight per cent, a year on $10,000 until the stock was returned.
    The stock not having been returned at the time designated, a new agreement was made between the parties, on the thirty-first day of October 1867, and embodied in the following document:—

      “ Office or the Huntingdon and Broad Top Mountain Railroad and Coal Company.
    Philadelphia, October 31st 1867.
    Alrred English, Esq.,
    Dear Sir: If you will withdraw the suit for yoiir Pennsylvania Railroad stock loaned us, we will pay the attorney’s fee, and we will faithfully agree to pay you, on account of the same, $500 on the 23d November next 1867 ; $1000 21st December 1867 ; $500 on 23d January 1868 ; $2000 on 21st of March 1868 ; $3000 21st June 1868, and $3000 21st September 1868. If the amounts of money specified are not sufficient to replace the said two hundred shares Pennsylvania Railroad stock, we do agree to pay to you as much in addition as will be required on the 2lst of September 1868, to make the said stock good. We furthermore agree to pay to you interest on the $10,000, at the rate of eight per cent, per annum, as heretofore. The securities (the company’s bonds) are all to be retained by you until the said stock is returned. When said stock is returned to you, you ar'e to repay to us the amount of moneys paid to you in accordance with the above, with interest at the rate of eight per cent, per annum. On the non-fulfilment of this agreement or any portion of it, you are authorized to proceed at once with the suit. Should the company return you the stock at any time previous to the 21st of September 1868, then any moneys which have been paid to you on account are to be repaid to the company. If any stock dividends are declared by the Pennsylvania Railroad Company at any time, said stock dividends are to stand in your name, and the certificates of stock are to be delivered to you as soon as received from the company. The cash dividends that may be declared at any time are to be paid to you in cash at the time the said company pay them.
    Yours, truly,
    L. T. Wattson, President.
    Attest:
    J. P. Aertsen, Secretary.”
    Alfred English accepted.
    Under this agreement the defendants paid the plaintiff the instalment of $500 due on the 23d of November 1867 ; that of $1000 due on the 21st of December 1867; and on the 23d day of January 1868, the day when the third instalment fell due, they gave the plaintiff their negotiable promissory note for the sum due ($500), paying the interest thereon in advance. This note was not paid at maturity, and remained unpaid at the trial.
    The “interest on the $10,000, at the rate of eight per cent, per annum,” provided for in the agreement, was paid up to the 21st of March 1868.
    On the 20th of August 1868, the plaintiff gave the defendants notice that the “ consolidation bonds” held by him “as collateral security for the Pennsylvania Railroad stock loaned,” would be advertised September 9th, and sold by M. Thomas & Sons, September 14th, if the stock, with interest, was not returned. The bonds were actually sold on the 15th of September 1868, for fifteen per cent, of their par value, the net proceeds of the sale amounting to $2944. A statement of the sale was furnished to the defendants on the 22d day of September 1868, in a note from the plaintiff, which concluded by saying, “for the balance due me according to agreement, I hold your company responsible.”
    The defendants acknowledged the receipt of the plaintiff’s communication ; but in so doing, refused to admit the plaintiff’s power to sell the bonds without their consent.
    On the 3d of April 1873, the plaintiff brought the present suit. The first two counts in his declaration being on the agreement of April 13th 1867, and the next three on the agreement of October 31st 1867.
    Neither the money nor the notes received under the second agreement had been returned or tendered to the defendants before the suit was brought, or at any time thereafter.
    At the trial, before Hare, P. J., the plaintiff ipade the following -offers of evidence:—
    1. To prove the highest market price of Pennsylvania Railroad stock, between the date of default made in the payment of the fourth instalment, under the contract of October 31st 1867, and the date of the bringing of the suit, April 3d 1873.
    2. To give evidence of all the dividends, cash and stock, of the Pennsylvania Railroad Company, from the date (March 21st 1868) of default made in the payment of the fourth instalment, due under the contract of October 31st 1867, and the date (April 22d 1871) when the market price of the stock was highest.
    3. Evidence of the options offered between the dates last aforesaid to holders of stock of the Pennsylvania Railroad Company to subscribe for new stock at par.
    4. Evidence of the cash and stock dividends and options to purchase stock at par, paid and offered by the Pennsylvania Railroad Company between the date when the price of the stock was 'highest and the date of the offer (November 9th 1875).
    All these offers, under objection, were admitted. The following points were presented by the defendants, all of which .the court refused.
    1st. That the plaintiff’s right of action is upon the contract of October 31st 1867, and not upon the contract of April 13th 1867.
    2d. That there is no evidence in the case to warrant the jury in finding that the option of rescinding the contract of October 31st 1867, was duly exercised by the plaintiff.
    3d. That the omission of the plaintiff to tender back the money paid and the note given by the defendants under the contract of October' 31st 1867, and to demand the return of the stock, precludes him from recovering except under the contract of October 31st 1867.
    4th. That the measure of the plaintiff’s damages is the amount of money which should have been paid him under the contract of October 31st 1867, with interest at the rate of six per cent, from the dates at which the respective payments should have been made.
    5th. That the plaintiff is not entitled to recover as damages the highest value of the stock between the time when his right of action accrued and the bringing of his suit, or between the former date and any date subsequent thereto.
    6th. That the plaintiff is not entitled to recover under the contract of April 1867, for stock or cash dividends declared on Pennsylvania Railroad Company stock.
    7th. That the same instruction applied to a recovery under contract of October 31st 1867.
    8th. That if the plaintiff can maintain his action under the contract of April 1867, then the instalments of money subsequently paid by the defendants on account of the plaintiff’s claim must be considered as equivalent to a return to the plaintiff of such number of shares as could have been purchased therewith.
    9th. That the sale of the collateral bonds was unauthorized, and that, so far as appears from the evidence in this case, the defendants will be entitled to a return of the bonds after the payment of the debt due to the plaintiff, and the defendants are not, therefore, to be credited in this suit with the sum received from the sale of said bonds.
    In their general charge the court, inter alia, said:—
    “ That under the evidence in this case, the measure of damages was either the highest market price of the stock between the date of default made by the defendants in the performance of the agreement of October 31st 1867, and the date of trial, with interest, and all dividends and increments on the stock up to the date of such highest price, or the market value of the stock at the date of trial, with all dividends and increments thereon, from the timé that default was made in the performance of the agreement of October 31st 1867; that their verdict should be for the smaller of these amounts, the plaintiff’s counsel having consented to this; that the defendants were not to be credited with the amount of stock which the instalments paid by them under the agreement of October 31st 1867, would have purchased if invested at the dates of payment in the purchase of stock; the counsel on both sides agreeing, however, that if a different view of this point should be taken hereafter, the proper reduction should be made.”
    The jury rendered a verdict for the plaintiff for $14,558.26, that sum being the result of one of the calculations submitted to them by the plaintiff. The defendants assigned for error the admission of the evidence offered, the refusal of their points and the'portion of the charge noted.

      James E. Gowen, for plaintiffs in error.
    — The plaintiff’s right of recovery should have been restricted to the agreement contained in the letter of October 31st 1867. This was a new contract substituted in the place of the old one, and furnished the rule by which the rights and obligations of the parties were to be determined. The new contract was as to the old an accprd and satisfaction: Christie v. Craige, 8 Harris 431; 2 Parsons on Contracts *681; Babcock v. Hawkins, 23 Vt. 561. Plaintiff had' no right to elect to treat the second agreement as rescinded, and recover upon the first. Where a contract is to be rescinded, it must be in toto, and the parties placed in statu quo. Hunt v. Silk, 5 East 449; 2 Parsons *679. And there must be no laches in exercising the right to rescind: Pearsoll v. Chapin, 8 Wright 9; Babcock v. Case, 11 P. F. Smith 427; Morrow v. Rees, 19 Id. 373 : Beetem v. Burkholder, Id. 249. Here the plaintiff retained the money and the note paid to him under the second contract. The agreement of October 31st expressly provided that the bonds were all to be retained until the stock was returned, and the plaintiff’s disposal of them is sustainable only on the ground that the old agreement was rescinded,, which was not as wo have already contended. The measure of damages was erroneously stated by the court; we contend that the true measure is the value of the stock at the time the contract was broken. The duty or obligation in The Bank of Montgomery v. Reese, 2 Casey 143, arose out of the relation of trustee and cestui que trust, and not out of a contract relation as here: Wilson v. Whitaker, 13 Wright 117; Neiler v. Kelley, 19 P. F. Smith 403; McHose v. Fulmer, 23 Id. 365. In Musgrave v. Beckendorff, 3 P. F. Smith, 310, the contract bound the defendant to return the identical bonds which he had borrowed.

      S. S. Hollingsworth and George W. Biddle, for defendant in error.
    — Upon a breach by the defendant of the contract of October 31st 1867, the plaintiff was entitled to avail himself of the remedies belonging to him under the contract of April 13th 1867.
    In order that "an accord may be a defence to the original claim, it must appear that the plaintiff accepted the agreement itself, and not the performance of it, as a satisfaction for his debt, so that, if it was not performed, his only remedy would be by an action for the breach of the accord, and not a right to recur to the original debt: Evans v. Powis, 1 Welsby, H. & G. 601.
    By the terms of the second agreement, the plaintiff is expressly given the right to recur to his original claim upon the failure of the defendants to fulfil any part of such second agreement.

      The plaintiff has not rescinded the second contract; he has only-enforced those rights which that contract expressly gives him. Nor can there be any question, either, about the sale of the collaterals, because the first contract provided that they might be sold at either public or private sale without notice.
    When a suit is brought to recover damages for a breach of contract to return borrowed stock, the plaintiff is entitled to the market price of the stock at the trial, together with all increments and dividends on the stock from time of default, with interest thereon up to trial: Bank of Montgomery v. Reese, supra; Musgrave v. Beckendorff, supra; Reitenbaugh v. Ludwick, 7 Casey 131; Persch v. Quiggle, 7 P. F. Smith 247; Conyngham’s Appeal, 7 Id. 474; Work v. Bennett, 20 Id. 484. There is no limitation to the rule because of the fluctuating value of.a stock or its scarcity.
    March 4th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

We do not regard the acceptance by English, of the proposition made by the president of the company, in his letter of October 31st 1867, as the conclusion of a new contract, but rather the extension of the former arrangement. This previous undertaking contemplated the delivery to the plaintiff, on the 15th of June 1867, of the two hundred shares of Pennsylvania Railroad stock, •which the defendant had received as a loan from plaintiff on the 13th of the preceding April. There was no return made of these shares at the date indicated, and English was about to bring suit, when the proposition of the 31st of October was made and accepted.

Taking these two papers as one contract and we observe that it provides, generally, for the return of the stock, or its equivalent in money, on the 21st of September 1868; specialty, for payments in cash to be made from time to time, in all amounting to $10,000, the par value of two hundred shares, or if this sum was insufficient to “make good,” as the parties termed it, the said shares at the dates specified, the company undertook to pay as much more as would accomplish that object. If, on the other hand, the defendant chose to return the stock, at the time fixed by the contract, the plaintiff was required to refund the money which he had in the meantime received; finally, in case any one of the provisions of this contract was not complied with on the part of the company, English was at liberty to proceed with his suit at law.

Now, as these were independent contracting parties, bound to each other by no ties save those found in their contract, and as they by that contract, had, from the beginning, settled the compensation due English, in case of a failure to return the stock shares at the time fixed, why should we seek for any other rule of compensation than that fixed by themselves ? It is certain, had the company tendered to English the value of the shares in cash on the 21st of September 1868, he would have been obliged to receive it. On the other hand, in the absence of such tender, the plaintiff might have gone, upon that day, into the market and supplied himself with two hundred shares of the Pennsylvania Railroad Company’s stock, and have compelled the defendant to account for the price thereof. Thus, we take it, the rights of the parties were definitely fixed at the time when the breach occurred, just as would have been the case had the agreement been for the delivery of two hundred bushels of -wheat, or of any other articles of a marketable character.

It is obvious, therefore, that the court below erred in applying the rule stated in the case of The Bank v. Reese, 2 Casey 143, to the controversy in hand, since the contract itself carries it beyond the reach of that rule. Moreover that rule applies only where the parties bear to each other a trust relation. In Wilson v. Whitaker, 13 Wright 114, this court refused to adopt the above stated rule as applicable to stock contracts generally, and the learned judge who delivered the opinion in that case, whilst recognising the case of The Bank v. Reese as binding in all cases involving a trust, said, that the dicta, tending to carry the rule beyond the point stated, were not essential to the case, and were extra-judicial. A similar remark might well be made of the dicta in the case of Musgrave v. Beckendorff, 3 P. F; Smith 310, for there the plaintiff’s claim was based on an agreement for a return of the identical bonds loaned, and, as his property in them was not divested by the contract, it was a breach of trust in the defendant to sell or otherwise dispose of them; hence, as the above-stated rule might well apply on principle, the adoption of the extra-judicial dicta of The Bank v. Reese, was not necessary. Persch v. Quiggle, 7 P. F. Smith 247, was the case of an agent who had committed a breach of trust in the disposition to his own use of stock shares intrusted to his keeping. And in Neiler v. Kelley, 19 P. F. Smith 403, and Work v. Bennett, 20 Id. 485, the rule was held not to apply in cases of trover. As yet there does not seem to be any case on our books which prevents the limitation of the rule of The Bank v. Reese to cases involving a trust, or to those, the peculiar character of which renders the application of that rule necessary in order that justice may be meted oút to the parties litigant. Such,' however, is not the condition of the case in hand. The agreement of the 31st of October required that the plaintiff should be paid by instalments of cash as therein mentioned, and the return of the stock, in kind, was an option belonging to the company. As this contract was in part executed by the payment of the first two instalments by the defendants, and by the retention and sale’ of the collaterals by the plaintiff, the default cannot be treated as a rescission of the contract, but only as a breach, the damages for which must of necessity be measured by the money due the plaintiff at the time of such breach, with interest to the date of verdict.

It follows that English was entitled to recover from the defendant the value of the two hundred shares of stock, as of the 21st of September 1868, with the dividends and simple interest, deducting therefrom the payments as of the date when severally made.

As we think the collaterals were properly disposed of, we refuse to sustain the 15th assignment of error.

Judgment reversed, and a new venire is awarded.

A rule was granted on the 5th of March 1878, to show cause why judgment should not be entered in this case in favor of the defendant in error for the amount due him, according to the principle stated in the opinion of the 4th of March 1878, the damages to be liquidated by the prothonotary. This rule, after argument, was discharged on the 18th of March 1878.