text:
    Leightner versus Leightner.
    A testator devised his farm to his two grandsons, “ the one-half to each for life, and after the death of either, to his issue in fee-simple; and if either should die without issue, then his half should go to the issue of the other in fee-simple; and upon the death of both without issue then the whole to go to my other heirs.” He appointed his two sons the guardians of his grandsons until they respectively reached the age of twenty-five, and further provided that “ either of my said grandchildren may sell his interest in my estate to the other in fee-simple, with the written consent of my said two sons, or the survivor of them.” Held (reversing the court below), that the grandsons took only life estates.
    May 10th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of York county: Of May Term 1878, No. 162.
    Amicable action of dower unde nihil habet by Sarah Leightner against George E. Leightner, by his guardian, Emanuel Herman, and Albert O. Leightner and George D. and Elias Ebert, testamentary guardians of said Albert C. Leightner, to determine the right of the plaintiff, the widow of Samuel E. Leightner, deceased, to her dower in certain land held in common.
    The following case was stated for the opinion of the court: Michael Ebert died in the year 1868, seised of the premises in question, and leaving a will, dated December 12th 1859, with codicil dated July 14th 1862. Said will, provided, among other things, as follows : “I give and devise to my two grandchildren, Samuel E. Leightner and Albert C. Leightner, children of my deceased daughter, Anna Mary, my farm in West Manchester township, adjoining lands of Daniel Ebert, Martin Ebert, Hough and others, on which the aforesaid George Leightner now resides, containing one hundred and sixty-two acres and one hundred and ten perches; to one-half to each for life, and after the death of either, to his issue in fee-simple; and if either should die without issue then his half to go to the issue of the other in fee-simple; and upon the death of both without issue, then the whole to go to my other heirs; this last devise is subject to an agreement entered into by me which is dated the 22d day of April 1859, with George Leightner, the father of said grandchildren, but is to take effect at the expiration of said lease, or whenever it shall be terminated by any event whatever. I appoint my sons, George and Elias, guardians of the estate which my said grandchildren shall receive from my estate, and their control over said estate shall continue until their wards shall respectively arrive at the age of twenty-five years. Either of my said grandchildren may sell his interest in my estate to the other in fee-simple, with the written consent of my said two sons, or of the survivor of them.” The lease or agreement mentioned in said 'will, entered into between the testator and George Leightner, the father of the said Samuel E. Leightner and Albert C. Leightner was made on the 22d day of April 1859, wherein the testator demised, unto the said George Leightner the said farm for the considerations therein mentioned for the term of nineteen years from the first day of April 1859, unless both of said children should die before the expiration of said nineteen years, &c.
    The said Samuel E. Leightner was born on the 14th of March 1853, and the said Albert C. Leightner was born on the 24th day of January 1855.
    The said Samuel E. Leightner was married to the plaintiff in this action, on the 27th of November 1874, and had a son born to him, and died on the 4th day of September 1876, leaving to survive him his widow, Sarah Leightner, the plaintiff, and his son, George E. Leightner, of whom the said Emanuel Herman was appointed guardian.
    The said Albert C. Leightner is- still living and is unmarried.
    If the court be of opinion that the said Samuel E. Leightner,the husband of the plaintiff, died seised of an estate in fee-simple, in said premises as tenant in common with the said Albert C.
    ' Leightner, then judgment for the plaintiff for the one-third of the rents, issues and profits of the undivided one-half of said farm, and if not, then judgments for the defendants.
    The court entered judgment for the plaintiff, which action was assigned for error by the guardian of George E. Leightner, who took this writ.

      E. W. Spangler, for plaintiff in error.
    Issue here means children. The word “issue” in a will means the same as-heirs of the body, and in general is to be construed as a word of limitation; but this construction will give way if there is anything on the face of the will to show that the word was intended to have a less extended meaning, and to be applied only to children or descendants of a particular class or at a particular time: Taylor v. Taylor, 13 P. F. Smith 483.
    That “issue” is used here as a word of purchase is shown by the fact that the gift to the “issue” is not immediate, but after the death of the devisee for life, and then to such-issue in fee-simple. These superadded words “in fee-simple” indicate that the testator intended the “issue” not to take “qua heirs,” but as children — to be the root of a new succession. In Abbott v. Jenkins, 10 S. & R. 296, the devise was to A. for' life and after his decease to his “lawful issue” share and share alike and to their heirs and assigns; and it was held that A. took for his life with contingent remainder to his children. “ To his issue in fee-simple,” is in effect the same as to issue share and share alike, with superadded words of limitation. Even when the limitation is to “heirs of the body” to take distributively, with words of limitation added, such a direction is held to convert even the technical words “heirs of the body” into words of purchase. In such case they are not to be construed in their technical sense, as expressive of the nature and extent of the devise, and its descent, but as descriptio personarum, designatory of individuals : Smith on Exect. Int. 488; Fearne on Rem. 154. See also Findlay v. Riddle, 3 Binn. 139; Hoge v. Hoge, 1 S. & R. 155; Guthrie’s Appeal, 1 Wright 9 ; Chew’s Appeal, 1 Id. 23 ; Robins v. Quinliven, 29 P. F. Smith 333; Middleswarth v. Blackmore, 24 Id. 414; Smith v. Coyle, 2 Norris 242. “If either should die without issue then his half to go to the issue of the other in fee-simple.” Therefore, in the event of the death of either without issue, his portion would not go to the survivor, but to the issue of the survivor; and hence such issue would not take by descent from their father, but as purchasers: Washburn in his Treatise on Real Estate. “And upon the death of both without issue, then the whole to go to my other heirs,” shows that the testator intended a definite and not an indefinite failure of issue: Langley v. Heald, 7 W. & S. 96 ; Hauers’s Lessee v. Shitz, 3 Yeates 244.

      W. S. Kain and John Gibson, for defendant in error.
    The intention of the testator was to keep the estates devised in a particular line of issue. His idea was one of lineal descent, not heirs general, but to vest the estate in the heirs of the body of the life-tenant: Haldeman v. Haldeman, 4 Wright 29; Yarnall’s Appeal, 20 P. F. Smith 335. The devise is to his grandchildren, “the one-half to each for life and after the death of either to his issue in fee-simple.” This is, by the operation of the rule in Shelley’s Case, an estate-tail: 2 Jarman 335; James’s Claim, 1 Dallas 47; Evans’s Lessee v. Davis, 1 Yeates 332; Potts’s Appeal, 6 Casey 168; Allen v. Markle, 12 Id. 117; Kay v. Scates, 1 Wright 31; Angle v. Brosius, 7 Wright 187; Kleppner v. Laverty, 20 P. F. Smith 73. It is contended that the words “to his issue in fee-simple,” indicated an intention that the issue should not take qua heirs, but as children, and the case of Abbott v. Jenkins, 10 S. & R. 296, is cited as authority for that construction, but in that ease there were children in esse at the date of the will: Gernett v. Lynn, 7 Casey 94. And there were words of distribution with words of limitation superadded, in which class of cases the remainder-men take as a new root of succession : Guthrie’s Appeal, 1 Wright 9 ; Robins v. Quinliven, 29 P. F. Smith 334. But this effect is not given to superadded words of limitation alone: Paxson v. Lefferts, 3 Rawle 59; George v. Morgan, 4 Harris 95 ; Kleppner v. Laverty, 20 P. F. Smith 73. And in a case where the limitation was to the issue of the devisee in these words, “in fee-simple to her heirs for ever,” it was held not to affect the question : Price v. Taylor, 4 Casey 95. The devise over to the issue of the other constitutes cross-remainders to the issue of either : Clarke v. Baker, 3 S. & R. 470; Nicholson v. Bettle, 7 P. F. Smith 284. The words “if either should die without issue,” have uniformly been construed to mean an indefinite failure of issue : George v. Morgan, 4 Harris 107 ; Wynn v. Story, 2 Wright 166 ; Kay v. Scates, 1 Wright 31. The power to sell is altogether inconsistent with any estate less than a fee: Church v. Disbrow, 2 P. F. Smith 216; Post v. Dillon, 8 Phila. 31. And the fact that the consent of the testamentary guardians was directed to be first obtained, does not take the case out of the rule that the power of sale of the corpus of the estate conferred upon the devisees carries the fee: Broughton v. Langly, 2 Salk. 679.
    June 25th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

Apparently, the judgment in this case was reached by an inversion of the order of inquiry through which the point in controversy should have been developed. The provision made by Michael Ebert for his two grandsons for life, and upon the death of either, for his issue in fee-simple, was treated by the Common Pleas as the equivalent of a gift to the grandsons and their heirs; and was held to be controlling in establishing the meaning of the language of the testator throughout the clauses constituting the devise. Thus, the rule in Shelley’s case was employed as the means and medium for the interpretation of the will. The authorities collected in Yarnall’s Appeal, 20 P. F. Smith 340, show that its application was ill-timed. The testator’s intention was first to be ascertained by the accustomed principles of construction, and the inquiry was then to be made whether the intention was in accordance with the terms of the rule, or was so clearly inconsistent with those terms as to overbear the implication to be drawn from the use of technical phraseology, or was left so doubtful or so vague as to render the application of the rule necessary to the attainment of certainty of result.

Mr. Ebert’s purpose was indicated by directions which were explicit, perfectly reconcilable with each other, and unmistakable in effect and terms. He gave to his grandsons, Samuel E. Leightner and Albert O. Leightner, his West Manchester farm, in equal shares for life, and upon the death of one of them, “ to his issue in fee-simple.” Stopping at that point, the heirs of the devisees would undoubtedly have taken by limitation, and not by purchase, and the devisees themselves would have been invested with estates in fee. But the word “ issue ” was not used, and was not intended to be used by the testator as a term of art. He went on to define its meaning in the next clause of the same sentence, in which he directed that “ if either should die without issue, then his half should go to the other in fee-simple.” Nemo est Jiceres viventis. In the devise over to the issue of the survivor, the testator could only have meant children, for the ulterior limitation was to take effect in the survivor’s lifetime. With this clear indication of the sense in which the word was employed in providing for the contingency of the death of one of the devisees without issue, taken in connection with the limitation of the estate at the outset, to the grandsons for life, there can be no embarrassment in arriving at the sense in which it was employed in the clause in which, in the contingency of the death of a devisee leaving issue, his interest was given to such issue. And in the same way, the provision that the land should go to the testator’s other heirs in the event of the death of both grandsons without issue, can readily be ascertained to have had a definite and not an indefinite failure of issue in contemplation. In the first and second of the three contingencies, the devise over was in favor of children, and not in favor of heirs, either in fee-simple or fee-tail. In the third, a remainder in fee was devised, to vest on the death, without children, of the tenants for life.

But a subsequent provision of the will indicates perhaps still more significantly not only that it was the testator’s intention to devise a life-estate to his grandsons, but that he believed the intention had been adequately expressed. He ajapointed two of his sons their guardians until they should arrive respectively at the age of twenty-five years, and then authorized either of the grandsons, with the consent of the sons or of the survivor of them, to sell his interest in the estate to the other in fee-simple.” The manifest design was to give his devisees the power to convert their estates for life into estates in fee by deeds to be mutually executed by them between the ages of twenty-one and twenty-five. He desired that their titles should become absolute if it should prove safe so to enlarge them. That this result should not be wrought out improvidently, or in a way to hazard the true interests either of the grandsons or their children, the testator relied on the approval of the guardians for assurance and security. While sales were authorized, merely formal transfers would have met the requisitions of the will, for nothing more than the execution of a power was contemplated, and formal deeds would have vested and enlarged the interests, as a formal conveyance secured the same end in the case of Barnet v. Deturk, 9 Wright 72. By interpreting the will so as to give to the grandsons estates of inheritance under the devising clause, the provision for the guardianship and for the transfer and enlargement of the interests, would be reduced to an idle and aimless form. Such an interpretation, indeed, would blot that whole provision out. Wherever it is possible, all of a testator’s directions are to be carried into effect. The grounds ought to be clear, distinct and free from doubt which would warrant a court in setting any of them aside. The mistaken or inadvertent use. of a single technical word was not enough to produce an effect so serious upon Mr. Ebert’s will.

Judgment reversed, and judgment for the defendants in the case sated.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Troup versus Troup.
    A. agreed in writing, and under seal, to sell a tract of land to B. The agreement contained all the necessary features to take it out of the Statute of Frauds, except that the description of the land was in these words: “A tract of three acres of land, more or less, situate in the township aforesaid.” The only tract which A. owned in said township was one of sixteen acres, and B. alleged that three acres of this tract was intended to he conveyed. In ejectment, at the trial, it appeared that shortly after the execution of the agreement B. entered into possession of three acres of said tract, and made improvements thereon, and that he had paid a part of the purchase-money. There was evidence, also, that B. had taken possession in pursuance of the agreement, and that A. had by parol designated the boundaries of the land conveyed. The court below charged that the agreement was defective in not describing the tract; amounted to no more than a parol sale, and was within the Statute of Frauds, and directed a verdict for A. Meld, that this was erroneous, and that.there was sufficient evidence to induce a chancellor to decree specific performance, and the case should have gone to the jury.
    May 11th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trünkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of York county: Of May Term 1878, No. 118.
    Ejectment by Catherine Troup against Jacob Troup and others.
    The plaintiff was the widow of Oliver Troup and claimed the land in question, by reason of its having been appraised and set apart to her under the provisions of the Act of April 14th 1851. The defendants were the heirs of Emanuel Troup.
    Emanuel Troup owned a tract of land containing sixteen acres, and or. the day of its date, entered into the following agreement:
    “Article of agreement concluded upon this 26th day of December 1868. Between Emanuel Troup, of the township of Fairview county of York and State of Penna of the one part and Oliver Troup of the same place the second party, the first.party for the consideration herein doth sell unto the second party, a tract of about three acres of land more or less, situate in the township aforesaid, for which the second party agrees to pay to the first party the sum of twenty-five dollars per acre, as follows to wit a spring wagon of the value of twenty-five dolls, and the balance of the purchase-Three
    money is to be paid in ^ equal annual payments, without Inters, and the title the first party agrees to deliver on of before the first of April 1869, or the first of May 1869, and possession is to be given immediately after the date of the agreement, vz. Decmb. 26th 1868, the wood on part of the premises, the first party reserves for his own use and liberty to take it off when he requests it without hindrance in a reasonable time witness our hands and sealz the date above.
    Witness Emanuel Troup (seal).
    John Eichelberger. Oliver Troup (seal).

      It appeared that immediately after the execution of this agreement, Oliver Troup took possession of the land in dispute; that he made valuable improvements thereon, and that as part of the purchase-money, he had given to Emanuel Troup the spring wagon mentioned in said agreement. It was contended by the defendants, however, that he had not entered into possession in pursuance of the agreement, and that the boundaries of the land were not sufficiently designated in said agreement. They submitted several points embracing these propositions, to which the court, Fisher, P. J., replied, that under their view of the case it was not necessary to give specific answers, and then charged as follows:—
    “ The written article of the 26th of December 1868, between Emanuel Troup and Oliver Troup, and which has been given in evidence to you, is so defective in not giving a description of the land intended to be conveyed, as makes it nothing more than .part of a parol contract. No description of the land intended to be conveyed is contained in it except that it is in Eairview township, in this county.
    “In addition to this the parol proof does not make out such a parol contract and such performance and execution of it as would induce a chancellor to decree its specific performance. Your verdict will therefore be for the defendants.”
    The evidence produced at the trial is sufficiently stated in the opinion of this court.
    The verdict was for the defendants, and the plaintiff took this writ, assigning for error the refusal of his points and the foregoing charge.

      Cochran Hay, for plaintiff in error.
    A writing which shows the intention of the parties and indicates the terms of a contract, the land to be conveyed and the price, will satisfy the Statute of Frauds. The boundaries of the land need not be precisely ascertained: Colt v. Selden, 5 Watts 525; McFarson’s Appeal, 1 Jones 503 ; Smith and Fleek’s Appeal, 19 P. F. Smith 474 ; Shoofstall v. Adams, 2 Grant 209; Ross v. Baker, 22 P. F. Smith 186 ; Evans v. Prothero, 13 Eng. Law & Eq. Rep. 163. If the contract itself was not sufficient it certainly was after entry and improvements made : Bowser v. Cravener, 6 P. F. Smith 132 ; Martin v. McCord, 5 Watts 493.

      J. W. Latimer, for defendants in error.
    A contract is void under the statute when the consideration or the subject-matter is undefined. When the law requires the contract to be in writing it means that the complete contract must be proved by the wilting: Soles v. Hickman, 8 Harris 180. It cannot rest partly in parol: Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273, 281. Where the subject-matter, the land, is described, parol evidence is admissible to apply the description; but never to furnish the description, and also to apply it: Ferguson v. Staver, 9 Casey 413 ; Smith and Fleek’s Appeal, 19 P. F. Smith 474. The agreement must be so precise as to enable the inquirer to ascertain from it the terms of the contract, the land to be conveyed and the price to he paid: McFarson’s Appeal, 1 Jones 503, 510; Blagden v. Bradbear, 12 Vesey Jr. 466. To take the case out of the statute, the plaintiff must prove possession taken under and in pursuance of the contract, and it is the notoriety of the change of possession that, more than anything else, takes a case out of the Statute of Frauds: Ackerman v. Fisher, 7 P. F. Smith 457. The possession taken must be exclusive of the vendor: Blakeslee v. Blakeslee, 10 Harris 237; and by boundaries distinctly ascertained: Frye v. Shepler, 7 Barr 91; must be continuous : Rankin v. Simpson, 7 Harris 471; and a continuance of former possession is insufficient: Christy v. Barnhart, 2 Harris 260; Greenlee v. Greenlee, 10 Id. 226; and improvements, such as clearing and fencing are not sufficient, if they can be compensated in damages: McKowen v. McDonald, 7 Wright 443.
    May 20th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The agreement between Emanuel Troup and Oliver Troup, dated the 26th of December 1868, lacks but one feature to take it out of the Statute of Frauds. It is not only in writing, but is under seal; it sets forth the subject of the contract; three acres more or less of land in Fairview township, York county; the consideration and time and mode of payment; the date when the conveyance was to be made, with the further stipulation that the possession was to be delivered immediately upon the execution of the agreement. We have here all that has been held to be essential, excepting the designation of the land intended to be conveyed. That is not described otherwise than as a tract of about three acres of land in Fairview township, York county. If at the time of the agreement, Emanuel Troup had been the owner of no other land in this township but a single tract of three acres, there would have been less difficulty. In such case, the maxim, cerium est quod, eertum reddi potest would apply. The fact was that he owned a large tract of land in said township, of which it is alleged the three acres in dispute formed a part. It is undoubtedly true as a general rule, that when the law requires the contract to he in writing, the entire contract must be proved by the writing. So much was said in Soles v. Hickman, 8 Harris 180. When, however, the subject-matter has been sufficiently described as to be rendered certain it has been held sufficient : Smith and Fleek’s Appeal, 19 P. F. Smith 474. There is nothing upon the face of this agreement to enable us to reduce the description to certainty, and to say which three acres of the larger tract were intended. But the agreement was for immediate possession, and if it was accompanied by the delivery of possession under it, the lines designated, and improvements of a permanent character made upon the premises, and part payment of the price, we think the case would come within the exceptions to the rule, and be taken out of the statute. The learned judge of the court below withdrew these questions of fact from the jury, and directed a verdict for the defendants, upon the ground that the agreement was so defective as to amount to nothing more than a parol contract. This ruling forms the basis of the different assignments of error.

This brings us to the important question, was the evidence of delivery of possession under the agreement and of the designation of the property by the parties, sufficient to induce a chancellor to decree specific performance? For if it falls below this standard the court was not bound to submit it to the jury. To determine this question, it is necessary to refer briefly to the evidence. Tobias Hartman testifies that Oliver had possession of the land he bought from his father. “He put on a house; he farmed over it and lived in the house.”' Peter Shindle testifies: “I had a talk wdth Emanuel Troup in his lifetime whilst Oliver was living on the land. He told me the fence, where the stones lay, was the line; I know where the fence was; it begins on Hartman’s line and runs across to the other corner between him and his son Oliver. He told me from the end of that stone fence the line run to Haldeman’s line, between him and the line of Oliver. Fruit trees were planted by Oliver while he was living there; I helped to put up the house; it was put up in March 1869; Oliver moved there that summer; he (Emanuel) told me he took a wagon from Oliver for $25 for the land he bought from his father; he was farming it at the time he bought it from his father, and living in the house that was removed before it was removed. Can’t tell when the old man told me he got the wagon in payment. * * * I saw the wagon in the old man’s possession afterwards.” Josiah Danner testifies: “ Oliver was fixing the garden fence on this land. Old man Troup came there whilst we were at work and invited me to his house; this was after the new house was built. I agreed to go with him, and Oliver went also. There was a path cut from Oliver’s house to the old man’s. As we passed up we came to the corner of the stone fence; we stopped; I then asked the old man Troup where Oliver was to have his land; then he told me the line was from the stone fence to Tobias Hartman’s line, and from thence to a white oak tree at a corner, and then he showed me the line from the stone fence to Jacob Haldeman’s land. There was a fence above, and this line was to be straight with that fence to Haldeman’s line; the two fences formed a corner where we stood; then when it comes to Jacob Haldeman’s line it ran down to the same white oak "tree.” Witness shown paper, and continues: “This presents exactly the lines that the old man showed me. Oliver was present. I know where the oak tree is, and I walked around the lines; Emanuel Trout went with me, and showed me the lines, and they compared with the lines on the draft. * * * Whilst Oliver lived there he built a hog-pen for the hogs, and a kind of shed-roof attached to the hog-pen, and paled or fenced up the garden and planted fruit trees, pears and apples. * * * I helped him some at the cow-stable. Andrew Hutton was the carpenter at the hog-pen. He went to live there after he bought the land; put up the house after he bought it. * * * The time we were looking over the land the old man said Oliver had given him a wagon for $25, as part pay for the land, and the old man he said that it was in pay of the land. I was there when the old man and Oliver both had corn in the land. I know where the old man had his, and Oliver had his. Oliver planted in the way or direction of the stone fence; the old man planted on the other side and ran the way towards the Haldeman line; a space was left where the line was to go along; I saw Oliver cultivating his on the side he bought.” To rebut this evidence, the defendants called but a single witness, Josiah Danner, but whether the same Josiah Danner who had been previously examined for the plaintiff this record does not disclose. He testified to nothing material beyond a conversation with Oliver in which the latter saidi‘ he had got it (the land) five years for clearing it off; this was said after the house was built. He did not tell me he had it for five years and afterwards got it from his father.” The plaintiff then recalled Josiah Danner, who said: “ When I was living with Oliver, in the conversation that was had between Oliver Trout and the old man and myself, I said ‘ How is it about this contract about the farming of the land ?’ Oliver said he had the contract between him and the old man about the land for a length of time, I can’t say how long. He said that contract between him and his father since he bought it was nothing any more; was disannulled. I then said to the old man Troup, ‘Is that so ? ’ He said‘That is our agreement.’” This explanation of the matter, looking at all the circumstances of the case, appears reasonable. It is consistent with the other facts in evidence, and upon a bill for specific performance would not be without weight with a chancellor. We must not overlook the fact that the contract is in writing and undisputed, thus removing all reasonable grounds of suspicion as to the entire good faith of the claim. We think there is such a preponderance of evidence as to entitle the case to go to a jury. If possession was delivered under the agreement, the lines designated, improvements made, and a part of the purchase-money paid, of which there is evidence, it is sufficient to take the case out of the statute. The jury must pass upon the facts, and it was error to withdraw the case from their consideration.

The court did not pass upon the sufficiency of the tender, nor whether a tender before suit was necessary. As the record stands at present, these questions are not properly before us. It will be for the court below to decide them under the facts as they shall be. presented upon another trial, as well as to consider the question whether the case is one for a conditional verdict.

The judgment is reversed, and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Sadler’s Appeal.
    1. Where a trust estate is conveyed to a volunteer he is bound by the trust, although he had no notice of it, and if the grantee of such an estate, for full value, have notice of the trust, he is bound just as the grantor is bound.
    2. If property in its original state and form is covered with a trust in favor of the principal, no change in that state and form pan divest it of such trust, or give the agent or trustee converting it, or those who represent him in right (not being bona fide purchasers for a valuable consideration without notice), any more valuable claim in respect to it than they respectively had before such change, and in accordance with this principle equity will follow a trust fund through every transmutation for the benefit of the cestui que trust.

    May 14th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas of Cumberland county: Of May Term 1878, No. 190.
    Appeal of W. E. Sadler, receiver of the First National Bank of Carlisle, Pa., from the decree of the court confirming the report of the auditor, to whom was referred the account of Jesse Hettrick and Charles Hepburn, trustees.
    The First National Bank of Carlisle was a corporation chartered under the National Bank Act of February 25th 1863.
    Hon. Samuel Hepburn was president of the bank, and his son, C. H. Hepburn,'cashier.
    The capital stock was divided into five hundred shares. Of these, four hundred and sixty shares were owned by Judge Hepburn.
    The bank suspended payment on 1st of October 1873. A receiver was appointed on 25th of same month, into whose charge the assets of the bank passed. The president of the bank was its debtor to a considerable amount.
    On September 30th 1873, the books of the bank show and the cashier testifies that certain items of indebtedness were charged off, for which Judge Hepburn was liable, amounting to $16,400, and some other matters, aggregating $24,500, and that on that day there was substituted the item “Mortgage, S. Hepburn — $24,500.” That this item was made up of a mortgage, by Samuel Hepburn, on a farm in South Middleton township, to Jesse Hettrick and D. W. Worst, to secure transient deposits which they had in said bank to the amount of about $6000, and also a trust mortgage to C. II. Hepburn and Jesse Hettrick of another farm “in trust to secure the depositors of the First National Bank.” This farm was valued at about $20,000. These mortgages were executed on October 1st 1878, and the entry in the bank books was made in contemplation of their execution. They were entered as assets of the bank on its books and turned over to the receiver as such by the cashier of the bank, who was one of the trustees in the trust mortgage.
    Samuel Hepburn made an assignment for the benefit of creditors on the 21st day of October 1873.
    A bill in equity having been filed, by certain depositors of the . First National Bank, against the trustees in the mortgage, praying for a sale of the mortgaged premises, the court decreed a sale thereof.
    The sale of the farm was made. The trustees filed an account, exceptions were filed to the same, and the matter referred to an auditor to pass upon exceptions and make distribution.
    At the time of the failure of the bank, its creditors consisted of the following classes:
    1. Depositors payable on demand without interest.
    2. Depositors payable on twenty days’ notice, with interest, on condition deposit should remain a certain time.
    3. Balances due banks.
    4. Collections for banks and individuals, with which no account was kept.
    It was contended by the second class of creditors that, under the terms of the deed, they alone should participate in the fund.
    By the first class, that all depositors not bailors were included in the mortgage.
    By the third and fourth classes, that “ balances due banks” and “ collections,” were in fact deposits, and by the receiver of the bank that the whole fund should be treated as assets of the bank, and should be distributed rateably to all its creditors; that the trust mortgage was a mere substitute for other assets of the bank; that it was so carried on its books; so regarded at time of bank’s suspension, and so turned over to the receiver. The auditor held that the fund should go to the depositors of the bank, among whom he included the first and second above-described classes of creditors, excluding all the others. The court, Herman, P. J., confirmed this report, and from that decree this appeal was taken.

      A. B. Sharpe, J. S. Graham, S. Newsham, Duncan M. Graham, John Says, F. E. Beltzhoover, S. M. Leidich and W. F. Sadler, for appellant.
    Equity will follow a trust fund through every mutation for the benefit of the cestui que trust: Kirkpatrick v. McDonald, 1 Jones 393; Pierce v. McKeehan, 3 W. & S. 280 ; Harrisburg Bank v. Tyler, 3 Id. 373; Beck v. Urich, 1 Harris 638; Hill on Trustees, 2d Am. ed. 142; Lawrence’s Appeal, 2 Norris 493. A resulting trust in favor of all the creditors of the bank arose by virtue of the circumstances of the transaction itself: Morey
      v. Herrick, 6 Harris 129. The capital stock of an incorporated bank is a trust fund for all the debts of the corporation : 2 Story’s Equity Jur., sect. 1252 ; Mumma v. The Potomac Co., 8 Pet. 281; Where a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the rights of the original owner, or cestui que trust: 1 Story’s Equity Jur., sect. 1258; Reed’s Appeal, 10 Casey 208; Stockdale v. Ullery, 1 Wright 486. If an estate in trust is conveyed to a volunteer, he will be bound by the trust: Coble v. Nonemaker, 28 P. F. Smith 501; Lewin on Trusts 205; Mansell v. Mansell, 2 Peere Wms. 678.

      John It. Miller, S. Hepburn, Jr., and ,h. Todd, for appellees.
    —The capital stock of a corporation is clothed with a trust only in the sense that it cannot be diverted generally from its creditors: Story’s Equity Jur., sect. 1252. And the indebtedness of stockholders, otherwise than on subscriptions to stock, is not a trust fund: New Albany v. Burke, 11 Wall. 103; Burke v. Smith, 16 Id. 395. The debt of a stockholder (not quoad stockholder) ceases to be u the trust fund to which creditors can look, and becomes ordinary assets with which the directors may deal as they choose Sawyer v. Hoag, 17 Wall. 621. In any event the trust which affects the assets of a corporation, other than unpaid instalments of stock, is not one which precludes the preference of some creditors over others: New Albany v. Burke, 11 Wall. 103; Scammon v. Kimball, 2 Otto 369; Curran v. State of Arkansas, 15 How. 307. The notes and bonds of S. Hepburn were not for unpaid subscriptions of stock. The use of them for preferring certain creditors was not therefore a breach of trust.
    June 25th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

Among the facts reported by the auditor it was found that “there is no reason to doubt that the First National Bank of “Carlisle, at the time when the mortgagor in the deed to Hettrick and Hepburn was the president, and C. II. Hepburn, one of the trustees, was the cashier, did receive the mortgage as a portion of their assets, and so entered it in their schedule of assets, and surrendered for it notes and bonds which had previously belonged to them.” The exact character of the notes and bonds surrendered was not described, either in the testimony or in the report. They amounted to $16,400, and were marked paid and given up to Judge Hepburn when the deed of trust was delivered. Charles H. Hepburn testified that the judge “was largely indebted to the bank, and had been for some time; that ‘the bank held his notes,’ and that ‘some of these were surrendered to the amount of-.’ ” It has not been shown that the notes and bonds given up represented an indebtedness of Judge Hepburn amounting to $16,400. But the fact may perhaps be implied from the fact that, contemporaneously with the execution of the deed, he received them, and they were cancelled. At the time when the exchange of securities was made, the item, “Mortgage, S. Hepburn, $24,500,” was entered on the books of the bank, and, in the words of Charles H. Hepburn, “was carried as assets, and went into the hands of the receiver when the bank closed.” There was some discrepancy in the explanations made of the materials of which this item of $24,500 was made up. In the last examination of the cashier, he said it was composed of the $16,400 of securities extinguished, and of some items of loss charged off. The finding of the auditor was in accordance with this statement of the fact. If the sum was produced in that way, the losses included in it amounted to $8100. But when he was first called, the cashier said that “the trust-deed, as well as a mortgage on the Foulk farm to Jesse Hettrick and D. W. Worst, to secure debts of theirs against the bank, was carried on the books under the head of ‘ Mortgage, S. Hepburn, $24,500.’ ” The Foulk farm mortgage was for $6000, and if the new entry on the books covered that sum, the amount charged off for losses would be reduced to $2100. As, however, the fund for distribution is only $16,057.86, this discrepancy is not regarded as important. There is no money in excess of the amount of the cancelled notes and bonds, for which the depositors can set up an equitable claim based on the provision made by Judge Hepburn for their benefit to secure worthless debts.

In deciding the questions submitted to him, the auditor treated the deed of trust as a security for none other than the claims of depositors in the bank, and the fund in the hands of the trustees was divided among two classes of such depositors. The first class was composed of those who held certificates for deposits payable with interest on twenty days’ notice of demand; and the second, of those whose deposits did not bear interest, which were subject to check, and for which, when received, certificates or credit in passbooks were given. The former usage of the bank had recognised an intermediate class of depositors, who received certificates, on the return of which they were entitled to payment without interest. At the date of the trust-deed, and at the date of the audit, no certificates of this character were outstanding.

In its terms the trust-deed was undoubtedly a provision for the benefit of the depositors. The land described in it was conveyed “in trust to secure” them for “the amounts due and becoming due upon their respective certificates of deposit.” The consideration was declared to be “for the better securing the said certificates of deposit, with their interest.” The trustees were to hold the land “ as security for the payment of the deposits yet unpaid in the First National Bank of Carlisle.” And upon the payment by Judge Hepburn of “ all the deposits yet unpaid on or before the first day of October 1874,” the conveyance and the estate granted by it were to become void. If this controversy were to be determined by the terms of the instrument itself, without inquiring into and considering connected and surrounding facts, nothing would be required beyond a simple approval of the decision of the auditor.

But the deed by which the trust was created, passed into the possession of the bank. It took its place among the general assets of the corporation to fill the room which the withdrawal and cancellation of other general assets had made vacant. The consideration for its execution had proceeded from the bank, and had consisted of the notes and bonds that had been surrendered. These notes and bonds had formed part of the securities held by the corporation as a trust for the general creditors. In transferring them, and in accepting the trust deed in their stead, it was not in the power of the officers of the bank to impair existing rights by attempting to make exclusive provision for a new or narrowed class of beneficiaries. No consideration was paid by the depositors entitling them to preference, and the trustees were volunteers. The fund in court was made up of the proceeds of the land conveyed by the deed, and the direct connection between the deed and the cancelled securities has been established by the testimony and the auditor’s report. The absolute identity of the fund as the product of the notes and bonds that were given up is not contested. By what rule, then, can the diversion from the general creditors of assets belonging to them to the depositors be justified ? It is well settled that if an estate in trust be conveyed to a volunteer, he will be bound by the trust, although he had no notice of it. If the grantee of such an estate for full value have notice of the trust, he is bound just as the grantor is bound. A trust already in existence and annexed to the present subject-matter, is created de novo as against a person who takes by a title derivative from the original trustee: Lewin on Trusts 205, 206; Mansell v. Mansell, 2 Peere Williams 678, 681; Coble v. Nonemaker, 28 P. F. Smith 501. The general proposition, which is maintained both at law and in equity on this subject, is, that if any property in its original state and form is covered with a trust in favor of the principal, no change in that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right (not being bona fide purchasers for a valuable consideration without notice), any more valuable claim in respect to it than they respectively had before such change: 2 Story’s Equity, sect. 1258. The same proposition is variously illustrated in the same'book, in sects. 1252, 1257 and 1268. In accordance with this principle, it has been ruled that equity will follow a trust fund through every transmutation for the benefit of the cestui que trust: Kirkpatrick v. McDonald, 1 Jones 391. The conversion of trust money or choses in action into land is not permitted to divest its fiduciary character, and a court of chancery will pursue it wherever it can be identified and traced: Philips v. Crammond, 2 W. C. C. R. 441; Pierce v. McKeehan, 3 W. & S. 280; Le Neve v. Le Neve, Amb. 436. The general creditors of the First National Bank of Carlisle were entitled to participate in the distribution of this fund, and the exceptions to the auditor’s report filed by Mr. Sadler, the receiver, ought to have been sustained.

The decree is reversed at the costs of the appellees, and it is ordered that the record be remitted, that the distribution made by the auditor may be amended and corrected.


author: Mr. Justice Mercur

text:
    Seitz’s Appeal. Zinn’s Estate.
    1. Where the intention of a testator is that a fund devised to his grandchildren shall not be expended during their minority, an allowance for the maintenance of said children may be decreed out of the interest, but not out of the corpus of said legacies.
    2. The mere fact that a mother has maintained her own children, raises in law no implied promise to pay; the presumption is that she did it gratuitously, and in the absence of an express or implied promise to pay her for maintaining them, she is not entitled to be reimbursed therefor.
    May 14th 1878.
    Before Agnew, O. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Orphans’ Court of Cumberland county: Of May Term 1878, No. 188.
    Appeal of Benjamin Seitz, testamentary guardian of the minor children of John Q. Zinn, deceased, from the decree of the court directing an allowance to Catharine E. Zinn, widow of said decedent, out of the estate of said minors.
    The proceedings were as follows: The widow applied to the Orphans’ Court, by a petition, which in substance set forth: That she was the widow of John Q. Zinn, and mother of Clayton F. and Adda C. Zinn; that her husband had left an estate, consisting of a house and lot, which petitioner and her children should possess until another child, Mary E. Zinn, should attain the age of twenty-one years, when it was to be sold and $300 of the proceeds were to be paid to petitioner; that since then the grandfather of said children has died, and they are entitled, under the provisions of .his will, to some $1500 or $2000; that, petitioner has supported herself by her own labor and some little property she received from her husband’s estate, and that her health has failed. She therefore asked for a rule on the guardian, to show cause why an order should not be granted requiring him to pay petitioner a certain sum of money, for the support and maintenance of said children, and to cover the amount already expended in their behalf.

      The guardian filed an answer, wherein, inter alia, he averred that petitioner was mistaken in the amount coming from the estate of George Zinn’s estate, as but $1000.27 could be realized therefrom, and $327.48 additional at the death of the widow of said decedent, and that under the will of said George Zinn, said guardian had no right to pay any part of the fund that would come into his hands to petitioner, and prayed that the petition might he dismissed.
    An auditor was appointed by the court to ascertain and report what amount, if any, should be paid to petitioner, who reported •that $792 should be paid her for past maintenance, and $100 per annum for future maintenance.
    Upon exceptions filed to this report, the court changed this allowance to $250 for the past maintenance of both minor children, and $50 per annum, each, for future maintenance, and made a decree accordingly. From this decree the guardian took this appeal.
    The material portions of the wills of George Zinn and John Q. Zinn, together with the other facts in this case, will be found in the opinion of this court.

      A. B. Sharpe, for appellant.
    The court had no power to allow any portion of the corpus of the legacies, for the maintenance of the children: Seibert’s Appeal, 7 Harris 49. The mother was not entitled to be reimbursed for the past maintenance of the children; the presumption is that she furnished it gratuitously: Cummings v. Cummings, 8 Watts 366; Pelly v. Rawlins, Peake’s Add. Cases 226; Duffey v. Duffey, 8 Wright 402; Ruckman’s Appeal, 11 P. F. Smith 251.

      John Hays, for appellee.
    October 7th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This is an appeal by the guardian of the minor children of John Q. Zinn, deceased. The money sought to be appropriated by this decree was acquired under the will of their grandfather, George Zinn. It declared: “I direct that one share of my estate that would have been enjoyed by my son, John Q. Zinn, had he been living at the time of my death * * * shall descend to his children living at the time of my death, after final settlement of my estate, and be put at interest, and paid over to them after they arrive at the age of twenty-one years, and if they all die without leaving issue, it shall be equally divided among the rest of my children living at the time of my death.”

By virtue of proceedings in partition, the share devised to these grandchildren was converted into money. The fund realized from both real and personal estate, now in the hands of the appellant, belonging to the two grandchildren, is $1008.16. On the death of the widow of George Zinn, they will be entitled to receive the further sum of $827.48.

Under the clause of the will cited, we think the grandchildren took an absolute title to the personal property, and an estate tail in the real estate. By the Act of 1855, the latter became an estate in fee: Amelia Smith’s Appeal, 11 Harris 9; Rewalt v. Ulrich, Id. 388; Price v. Taylor, 4 Casey 95; Potts’s Appeal, 6 Id. 168; Kay v. Scates, 1 Wright 31.

Conceding the estate in question to be vested, and the payment thereof only postponed until the grandchildren shall severally arrive at the age of twenty-one years; yet, the correctness of the decree does not necessarily follow. The 13th section of the Act of 29th March 1832, declares, “whenever any one shall die leaving an infant child or children, without having made an adequate provision for the support and education of such child or children, during their minority, the Orphans’ Court may direct a suitable periodical allowance, out of the minor’s estate, for the support and education of such minor, according to the circumstances of each case; which order may from time to time be varied by the court, according to the age of the minor and the circumstances of the casePurd. Dig. 414, Pamph. L. 46.

The early English cases have not uniformly recognised the same right of allowance to infant grandchildren, as to children, for their maintenance out of the interest on a legacy before the time for the payment thereof had arrived; yet many of them make no distinction when the legacy has been given by one who puts himself in loco parentis: Watts v. Bullas, 1 P. Wms. 60; Nichols v. Osburn, 2 Id. 419; Acherly v. Wheeler et al., 1 Id. 783; Corbin v. Wilson, 2 Atk. 178; Newport v. Cook, Id. 332 ; Norris v. Fisher, Id. 411; Crickett v. Dolby, 3 Ves. Jr. 10. Where the legatee is a minor, incapable of supporting himself, for the purpose' of maintaining him, interest must be paid on the legacy, whether it be vested or contingent: Phipps v Annesly, 2 Atk. 58; Incledon v. Northcote, 3 Id. 433. This rule is affirmed in Magoffin v. Patton et al., 4 Rawle 113 ; Seibert’s Appeal, 7 Harris 49; Clark’s Executors v. Wallace, 12 Wright 80; Leiby’s Appeal, 13 Id. 182. These cases recognise the power to decree that the interest on the legacies shall be applied to the maintenance of the infants; but do not extend to the principal sum. In the ease last cited, the question of a right to so appropriate the corpus of the fund was expressly reserved. The manifest intention of the testator, in the case at bar, was that the fund devised to these grandchildren should not be expended during their minority. The language used unmistakably withholds its payment until they severally arrive at the age of twenty-one years. The decree made by the court below, would exhaust almost tbe whole fund before that time. The cases cited go no further than to apply the interest before the time designated for the payment of the legacy. We see nothing in the circumstances of the present case to justify going further, or to sanction the premature destruction of the corpus of the estate.

This application Avas not made by the guardian, on whom the law imposes the duty of maintaining his AYards, according to their circumstances. He does not ask for leave to be permitted to so apply their estate. The application is to compel him so to do against his will. It is made by their mother, to reimburse her for their past maintenance, as well as for their future support. It is not claimed that she had supported them in pursuance of any agreement Avith the guardian by Avhich she Avas to be paid by him. The mere fact that she had maintained her oAvn children, raises, in law, no implied promise to pay. Tire presumption is that she did it gratuitously: Cummings v. Cummings, 8 Watts 366 ; Duffey et al. v. Duffey, 8 Wright 399; Ruckman’s Appeal, 11 P. F. Smith 251. She sustained no fiduciary relation to this estate thus devised to her children by their grandfather. It is unlike the case where the mother of the minor children Avas the executrix of her husband’s Avill, under which she held the property of the children, and expended a portion thereof in maintaining them. In the absence of a guardian there was no injustice in her being alloAved therefor.

The provisions in the will of the late husband of the appellee, strengthen the presumption that she maintained them without any expectation of being reimbursed therefor out of the estate left them by their grandfather. Her husband devised to her the possession and use of a house and lot until one of their daughters became of age, provided the appellee remained his Avidow; but “if she should marry again and occupy the house,” then he directed “the rent shall be paid for the use of our children.” He further ordered, that, after the daughter became of age, the house and lot should be sold, and the proceeds thereof be divided between the mother and the children. Although not expressly so directed by him, yet it was undoubtedly his expectation that their children would remain with her. She appears to have so understood him, and to have kept them accordingly. In the absence of any express or implied agreement to pay her for maintaining them, she is not entitled to be reimbursed therefor. The evidence does not show any demand for pay prior to the presentation of her petition. Before that time it must be presumed she acted Avithout expectation of any pecuniary reward. The learned judge therefore erred in decreeing any compensation for their past support, and in encroaching on the corpus of the fund for their future support. Commencing at the time the petition Avas presented, the court should decree the payment of a reasonable sum for the support and maintenance of each grandchild, not to exceed the interest on the sum that is, or may be, in the hands of the guardian.

Decree reversed, and it is ordered that the record be remanded, with instructions to decree conformably with this opinion, and that the costs be paid out of the fund in the hands of the guardian.


author: Mr. Justice Trunkey

text:
    Sharpe’s Appeal.
    1. Where letters of administration have been issued to a competent person they will not be revoked upon the subsequent claim of one who was incompetent at the time of- the grant.
    2. At the instance of the kindred and creditors of a non-resident decedent letters of administration upon his property in this state were granted to a competent person. After the grant the widow of the decedent came into the the state to reside, and at her request the register revoked his grant and issued letters to her. Held, that he had no power to vacate the original grant.
    May 14th 1878.
    Before Agnew, O. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Orphans’ Court of Cumberland county: Of May Term 1878, No. 189.
    Appeal of A. B. Sharpe from the decree of the court confirming the revocation by the register of letters of administration granted to appellant, upon the estate of Robert E. Sharpe, deceased, and the issue of letters to Delia R. Sharpe, widow of said decedent.
    The facts were these: Robert E. Sharpe died childless and intestate in New Orleans, Louisiana, on the 13th of January 1876. He died possessed of certain real estate in Cumberland county, Pennsylvania, part of which was encumbered. Previous to 1869 he had lived in Cumberland county, but in that year went to Louisiana, where he purchased an orange plantation. While in Louisiana he married the appellee, a resident of New Orleans. From 1869 to the day of his death he continued to reside in Louisiana, returning to Pennsylvania occasionally to look after his property here. The decedent left both blood-relatives and mortgage and other creditors in Cumberland county. On May 25th 1876, at the instance of these kindred and creditors, letters of administration on his estate in Cumberland county were issued to appellant by the deputy register of the county. Four months had expired from the death of decedent at the time this application was mhde. No notice was given to the widow, as it appeared to have been assumed that she was not entitled to administer, nor had the appellant any intimation that she made claim thereto until after letters ivere issued to him.'
    On the 29th of June, following, the appellee entered her caveat against the granting of letters to appellant, and requested a citation to be issued to him to show cause why the letters granted should not be revoked and letters granted to her; which citation was issued and made returnable on the 24th of July. The parties appeared on that day and were heard, and evidence offered and taken; after which the register filed an opinion revoking the letters granted to appellant and issued letters to appellee.
    From this decision of the register Mr. Sharpe entered his appeal to the Orphans’ Court, on the 10th of August 1876, returnable on the 13th of September, of which appellee was notified by the register, after which the case was heard by the Orphans’ Court, where the action of the register was affirmed, and hence this appeal.

      John Hays, for appellant.
    The appellee not being a resident of Pennsylvania the grant of letters to her was void: Act of March 15th 1832, sect. 27 ; Act of March 29th 1832, sect. 27; Sarkie’s Appeal, 2 Barr 157.

      L. Todd and A. M. Rhoads, for appellee.
    Robert E. Sharpe did not change his domicile. He did not remove from the state with an intention to permanently reside elsewhere: Ex parte Casey, 1 Ash. 126; Peters v. Coby, 24 Pitts. L. J. 99. The domicile of the husband is the domicile of the wife: Dougherty v. Snyder, 15 S. & R. 84; Hollister v. Hollister, 6 Barr 449. The appellee was therefore competent at the time of the issue of letters to appellant and she did not renounce.
    May 27th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

On behalf of the appellee it is averred that the decedent’s domicile, at the time of his death, was in Pennsylvania. Starting with this premise, the argument is conclusive of her right to administer his estate. The structure is complete, but the evidence reveals that it has not even a foundation of sand. The contest was commenced by Delia R. Sharpe’s affidavit, showing “that she is the widow of Robert E. Sharpe, late of the city of New Orleans, La.,” followed by testimony that he became a resident of that state in 1869, was married there, and resided there till his death, in 1876; and concluded by the register and court, respectively, treating it as an unquestioned fact that his domicile was in Louisiana, and that his widow abandoned her home and came to Pennsylvania in the following June.

Over four months after the decedent’s death letters of administration of his estate, in Pennsylvania, were granted to A. B. Sharpe. All interested persons, who then resided in this state, were and are content. There was no unseemly haste in taking out letters, nor is cause for removal assigned, or any pretence that it exists. The revocation was for the alleged reason that the letters were improvidently granted, and, if they were, there was no error. The inquiry is narrowed to the single question, when letters have been rightly issued will they.be revoked on subsequent claim of one who was of full age and incompetent at the time of the grant ? No statute or precedent warrants such a procedure. The law provides for granting letters during minority, subject to be terminated at the instance of the person entitled'on his arrival at full age; for the removal of an administrator for cause; for revocation of letters improvidently granted. But when letters were lawfully issued to a fit person, with consent of every one who was entitled before him, he is not subject to arbitrary dismissal; ■

It was said by the learned judge that letters were “granted to the appellant improvidently by the deputy, without any notice to the widow or assent on her part.” Neither notice to her, nor her ■assent, was necessary, for the conclusive reason that she was a nonresident of the state,. and, therefore, incompetent to administer: Sarkie’s Appeal, 2 Barr 157. Notice to and assent of persons to whom letters cannot be granted, because they are non-residents, are never required before the issuing of letters to a fit and competent person. The subsequent coming into the state by the incompetent widow or kindred of the deceased, does not make that improvident which was providently done.

Decree reversed, and now it is considered and decreed:

1. That the order of the register, revoking the letters issued to A. B. Sharpe, be set aside.

2. That the letters granted to Delia B. Sharpe be and are hereby vacated.

3. That the costs of this appeal, and in the Orphans’ Court, and before the register, be paid by the appellee.


text:
    Kent, Santee & Co.’s Appeal.
    In order that a better price might be obtained for a debtor’s property, certain execution-creditors agreed with the sheriff that an assignee for the benefit of creditors appointed after fi. fa. issued and levy made, should sell the property and account to the sheriff for the proceeds. Held, that in the absence of fraud or that the execution had not issued for the purpose of lien or delivery, the lien of these execution-creditors was not made void by this agreement, and other creditors were not entitled by reason thereof to come in and ask for a pro rata distribution.
    May 16th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharsavood, J., absent.
    Appeal from the Court of Common Pleas of Cumberland county : Of May Term 1878, No. 123.
    Appeal of Kent, Santee & Co. from the decree of the court dismissing the exceptions to the report of the auditor appointed to distribute the fund arising from the sale of the personal property of L. T. Greenfield. The trial was held before McLean, P. J.
    The facts are stated in the opinion of this court.

      H. Hewsham, for appellants.
    An assignment to trustee for all creditors, and deed recorded, bond given and possession taken, is put on the same footing with a subsequent execution: Commonwealth v. Stremback, 3 Rawle 341.; McClure v. Ege, 7 Watts 77. From the facts as proved, the conclusion is inevitable, that these' executions were not issued for the purpose of collecting the money due on the judgment, but only to secure a lien. This was an attempted perversion of the design of an execution, and against the policy of the law 'and the Statute of Frauds: Commonwealth v. Stremback, supra; Corlies & Co. v. Stanbridge, 5 Rawle 290; Freeburger’s Appeal, 4 Wright 246; Stern’s Appeal, 14 P. F; Smith 449. The agreement on the part of the sheriff was itself illegal and void. Property, when taken by the sheriff must be sold at public and not at private sale. When sold at the latter, it is a legal fraud: Keyser’s Appeal, 1 Harris 409; Parys’s Appeal, 5 Wright 277.

      John Hays, for appellees.
    An assignee is a mere volunteer, and takes the estate subject to all the liens upon it. He has no greater rights than the assignor: Ritter v. Brendlinger, 8 P. F. Smith 68. He may purchase property, or make an agreement calculated to save the estate from sacrifice: Frank’s Appeal, 9 P. F. Smith 190. His possession of the goods did not prevent the sheriff from claiming them: Weidensaul v. Reynolds, 13 Wright 78; Osborne’s Est., 5 Whart. 267.
    June 17th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The facts of this case are as follows: On November 5th 1875 nine writs of fieri facias were issued out of the Court of Common Pleas of Cumberland county against L. T. Greenfield, and the same day were placed simultaneously in the hands of the sheriff. On the morning of November 6th the sheriff levied on the drygoods store and other personal property of the defendant and took possession thereof. After making the levy in due form, the sheriff was informed by the attorney for the execution-creditors that Mr. Greenfield would make an assignment. On the same day Greenfield executed an assignment for the benefit of his creditors to S. H. Gould, one of the execution-creditors; the trust was accepted and appraisers appointed. An arrangement was then made between the assignee, the sheriff and the attorney for the execution-creditors, by which the assignee was to take the possession of the property levied upon, sell it and turn the proceeds over to the sheriff, the same as if the sheriff had sold it under his writs, to be distributed pro rata upon the executions, the amount thereof being largely in excess of the appraised value of the property. Upon this express agreement the property was delivered to the assignee by the sheriff. It was subsequently sold by the assignee under this arrangement, and he then filed his account, in which he claimed a credit for the payment of the proceeds to the sheriff. The auditor disallowed this credit, upon the ground that the agreement of the assignee to take the property, subject to the lien of the levy made by the sheriff, was “illegal, null and void,” and distributed the money “among all the creditors of the assignor in proportion to their respective claims as provided by the Act of 17th April 1843.” The court below reversed the auditor, upon exceptions filed, and directed the fund to be applied fro rata to the nine executions. From this decree an appeal was taken by the appellants, who are general creditors, and they assign for error the ruling above stated.'

The law does no.t favor an execution for the mere purpose of lien. There is a line of cases which hold that instructions to the sheriff to stay proceedings, or not to proceed upon an execution, or which indicate that it was issued not for the purpose of levy and sale, but for the purpose of lien, and to acquire security for the debt, will destroy the lien as to purchasers and subsequent execution-creditors : Commonwealth v. Stremback, 3 Rawle 341; Corlies v. Standbridge, 5 Id. 235 ; Freeburger’s Appeal, 4 Wright 247 ; Parys’s Appeal, 5 Id. 273; Keyser’s Appeal, 1 Harris 409; Starr’s Appeal, 14 P. F. Smith 447. This is a matter, however, of which the defendant cannot complain. The execution in such case is good against him. It is postponed only as to purchasers and subsequent execution-creditors. An assignee for creditors is not a purchaser. He is a mere volunteer: Ritter v. Brendlinger, 8 P. F. Smith 68; Missimer v. Ebersole, reported, ante, page 109. The assignee claims through the assignor. His rights rise no higher. The creditors claim through the assignee. They have his title, nothing more. The assignee took possession of the property under an express agreement to turn over the proceeds thereof to the sheriff. The auditor finds the transaction to have been free from fraud. The judgment upon which the executions were issued were bona fide. The sheriff could have gone on and sold, and would have done so but for the agreement of the assignee. There was nothing to’ indicate collusion for the purpose of hindering and delaying creditors. The object was manifestly to obtain a better price for the property. In doing so no one was injured. It has always been considered that an assignee having funds in his possession would have the right to redeem property of his assignor held in pledge or as collateral for a debt. In Frank’s Appeal, 9 P. F. Smith 190, it was held that an assignee would be justified in buying assigned real estate at sheriff’s sale to save it from sacrifice, even if it resulted in a loss. Had the property levied upon exceeded in value the executions, I have no doubt of the right of the assignee to have released it from the levy by paying off the executions. The same result was accomplished in a different way. He agreed to sell the property subject to the lien of the executions. In Osborn’s Estate, 5 Wharton 266, where an assignment ivas made for the benefit of creditors, and the landlord of the assignor gave notice to the assignee of the amount of rent due before the sale or removal of the goods, and told him that he wished to have it secured to him, Avhich the assignee promised to do as far as the law allowed, it was held that the assignee was justified in paying the amount of rent to the landlord.

We see no error in this record.

The decree is affirmed and the appeal dismissed at the costs of the appellant.


author: Mr. Justice Trunkex

text:
    Crouse et al. versus Commonwealth.
    The bond required by the Act of April 12th 1875, to be given by an innkeeper Avhen he takes out his license, is security only for damages arising under said act, and does not include damages recovered in a suit instituted under the provisions of the Act of May 8th 1854.
    May 17th 1878.
    Before Agneav, C. J.; Mercur, Gordon, PaxSON, Woodward and Trunkey, JJ. Sharsavood, J., absent.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1878, No. 168.
    Scire facias sur judgment, issued by the Commonwealth, at the suggestion of Ellen J. Null, against Lewis A. Crouse and his sureties, on a bond given by said Crouse, as an innkeeper, under the Act of May 8th 1854.
    On April 29th 1875, a license to keep a hotel at Bridgeport was granted to Crouse by the Quarter Sessions of Bedford county. With his petition for said license he filed a bond as required by said Act of 1875, in the sum of $2000, Avith two sureties which Avas conditioned as follows :—
    “ The condition of this obligation is such that if the above bounden Lewis A. Crouse, shall pay all damages which may be recovered in any action Avhich may be instituted against him under the provisions of the Act of 1875, and all costs, fines and penalties Avhich may be imposed upon him in any indictment for violating the said Act of 1875, or any other laAv of this Commonwealth relating to the selling or furnishing intoxicating drinks, then this obligation to be void, or else to be and remain in full force and virtue; and further, we hereby authorize and empoAver any attorney of the Court of Common Pleas of Bedford county, or of any otlier court of record in Pennsylvania or elsewhere, to appear for us and confess judgment for the above sum, with costs of suit, release of errors, &c.
    On October 23d 1875, David R. Null was killed on the railroad, near Bridgeport, and his widow brought an action against Crouse, under sect. 3, Act May 8th 1854, Purd. Dig. 946, to recover damages for the loss of her husband. In her declaration she averred that the defendant “did, contrary to his duty as a landlord, and contrary to law, sell, give and furnish to the said David R. Null, the husband of the said plaintiff, intoxicating liquors, to wit, wine, whiskey and brandy, as a beverage, when the said David R. Null was at the time the- said defendant sold, gave and furnished said intoxicating liquors to the said David R. Null, intoxicated and visibly affected by intoxicating drinks, the said defendant well knowing the same at the time of the sale thereof, whereby the said David R. Null in a short time thereafter became so intoxicated that he fell upon the track of the Pittsburgh and Connellsville Railroad, in the county aforesaid, and was run over and injured by a train of cars passing over upon said road, to wit: in the day and year aforesaid, and by reason of said defendant furnishing said intoxicating drinks to said David R. Null, when intoxicated as aforesaid, he the said David R. Null, was killed in the day and year aforesaid.’
    On April 27th 1877, a verdict was found for the plaintiff for <$1500. On the same day judgment was entered upon the license bond of Crouse against him and his sureties, and on July 14th 1876, this scire facias issued at the suggestion of Mrs. Null, to show cause why execution should not issue upon said judgment for the damages which she had sustained by reason of the breach of said bond.
    In an affidavit of defence, the defendants averred that judgment should not be rendered against them in this action, upon said bond, for the reason that the claim upon which the suggestion of the said Ellen J. Null is founded, was not recovered against said Crouse in any action instituted under the provisions of the said Act of April 12th 1875.
    The court, Hall, P. J., in an opinion said: “ The trial was on the second count in the declaration, Avhich averred that Crouse, ‘ contrary to his duty as a landlord, and contrary to law,’ sold and furnished Null intoxicating liquors when he was ‘ intoxicated and visibly affected by intoxicating drinks,’ the said Crouse well knowing the same at the time of the sale thereof.’
    “ The bond given by Crouse is dated the 3d of April 1875. The act repealing the Act of 27th March 1872 (called the ‘Local Option Law’) was approved the 12th of April 1875. The license to Crouse was granted April 29th 1875. The condition of the bond is that required by the Act of 12th April 1875. The position of the defendants is, that the bond is conditioned only for, 1. Damages which may be recovered in an action instituted under the Act of 12th April 1875. 2. Costs, fines and penalties imposed on indictment for violating the Act of 1875, or any act relating to the sale or furnishing of intoxicating drinks. And that the condition does not embrace damages recovered in an action instituted by the widow and children under the Act of 26th April 1855, to recover damages for an injury causing the death of the husband and father. ' We regard the condition as applying to ‘damages which may be recovered in any action which may be instituted against’ the landlord ‘under the provisions of this act’ (12th April 1875), ‘or any other law of this Commonwealth relating to selling or furnishing intoxicating drinks.’ We therefore order judgment to be entered for the plaintiff, secundum regulam, for want of a sufficient affidavit .of defence, for the sum claimed in the suggestion filed, to wit: for the sum of ¡$1500, with interest thereon from the 28th day of April 1877, together with ¡$95.63, the amount of the costs, and with the costs of this suit.”
    The defendants took this writ, alleging that the court erred in entering judgment for want of a sufficient affidavit of defence, but should have ruled that the license bond of Lewis A. Crouse was not conditioned for the payment of damages recovered against him in an action instituted under the Act of May 8th 1854, sect. 3, and should have entered judgment in favor of the defendants.

      John Cessna, E. E. Kerr, G-. H. Spang and J. M. Reynolds, for plaintiffs in error.
    It is an unwarranted construction to hold that the condition of the bond required by the Act of 1875, embraces the case of a recovery for damages in a suit instituted under the provisions of the Act of 1854. The terms of the bond do not include it, and the amount of the bond precludes such a supposition. This is a penal statute and should Be strictly construed, and if there is a doubt about its construction the party from whom the penalty is claimed should have the benefit thereof: Dwarris on Statutes 245, note 35.

      W. H. Koontz and Russell Longenecker, for defendant in
    error.
    The construction of the court below, in our view, is the correct interpretation of the condition of the bond. If it is not, then there is no security for damages recovered under any law except the Act of 12th April 1875. The legislature did not intend, by the passage of that act, to relieve the sellers of intoxicating drinks from responsibilities placed upon them by prior laws, but the manifest object was to increase their liabilities and make the selling of such drinks more hazardous. All the acts upon the subject of liquors and licenses are to be taken in pari materia, and compose one body of laws upon these subjects, and are to be construed together as one act.

      In the ease of Fink v. Garman, 4 Wright 95, this court construed the Acts of April 15th 1851, May 8th 1854, and April 26th 1855, and held that, “ under the Act of April 15th 1851, a widow may maintain an action for damages against an innkeeper for furnishing her husband liquor when intoxicated, in consequence of which he fell under the wheel of his wagon and was killed.”
    June 10th 1878.
   Mr. Justice Trunkex

delivered the opinion of the court,

Ellen J. Null obtained judgment against Lewis A. Crouse, a licensed innkeeper, for causing the death of her husband by furnishing him intoxicating drinks in violation of the Act of May 8th 1854. The third section of that act, in connection with the Acts of April 15th 1851, and April 26th 1855, enables any person aggrieved to recover full damages from one who, in violation of an existing law, furnishes liquor to an intoxicated person, or a person of known intemperate habits, thereby causing his death: Fink v. Garman, 4 Wright 95. This action was brought for the recovery of said judgment upon Crouse’s bond, which was given in pursuance of the Act of April 12th 1875, Pamph. L. 40, upon the granting of his license. The defence set up in the affidavit is, that the judgment recovered against Crouse was not for any damages for which he became liable for violation of said Act of 1875, nor in any action instituted under its provisions.

By said act, no license to sell intoxicating drinks shall be granted to any person until he shall have given bond, with sureties, in the sum of $2000, “ conditioned to pay all damages which may be recovered in any action which may be instituted against him under the provisions of this act, and all costs, fines and penalties, which may be imposed upon him in any indictment for violating this act, or any other law of this Commonwealth relating to selling or furnishing intoxicating drinks.” The grammatical and natural sense of the prescribed words is, that the bond is security for such damages only as arise from violations of that act. So obvious is this that no attempt has been made to give them a broader sense, without “ stripping the condition ” by shifting the words, “ and all costs, fines and penalties, which may be imposed upon him in any indictment for violating this act.” The correct rule is to construe •statutes in their grammatical and natural sense, unless the context show clearly that a different sense was intended: Pot. Dwar. Stat. 196. All prior statutes, not inconsistent with or supplied by the Act of 1875, regulating and restraining sales of intoxicating liquors continue in force, and the whole are to be construed as one: Id. 189. For some purposes, if need be, it is competent to call in aid a repealed statute to assist in the construction of the one supplying it: Id. 191.

Section 10 of the Act of March 31st 1856, prescribed the bond given prior to 1875. It was in the penal sum of $1000 for all above the seventh class, and in $500 for all in and below the seventh, conditioned “for the faithful observance of all the laws of this Commonwealth relating to the business of the principal obligor.” Clearly that bond was not forfeited for violation of any law not relating to the business of licensed vendors of liquors. The Act of 1875, declares much severer fines and penalties than prior acts, for various offences. Eor selling intoxicating drink on election day, or on Sunday, or at any time to a minor, or to a person visibly affected by intoxicating drinks, the fines are largely increased. The act also provides that any husband, wife, parent, child or guardian of any.person having the habit of drinking to excess, may give written notice not to sell or deliver intoxicating liquor to the person having such habit, and if the person so notified shall, within twelve months thereafter, sell or deliver such liquor to the person having such habit, the one who gave the notice may recover of the one notified damages not less than $50, nor more than $500. In case of death of either the action and right of action shall survive to or against his executor or administrator, without limit as to damages. Larger fines declared and damages allowed by the Act of 1875, called for an increased penal sum in the bond; and the provision for damages explains the verbal change in its condition. Apt words are used to include the very things for which the principal obligor may become liable for violation of laws relating to his business. The context, instead of showing a different meaning was intended, demands adherence to the usual sense of the words directed for the bond.

Wilfully furnishing intoxicating drinks by sale, gift or otherwise, for use as a beverage, to any person of known intemperate habits, to any person when drunk or' intoxicated, to a minor, or to an insane person, is made a misdemeanor by the Act of May 8th 1854. In the numerous changes of the license laws, that act has remained undisturbed. It applies to all persons in whatever business or occupation. Whether the person violating it was licensed or not, is not an element of the offence, nor of an aggrieved person’s right to recover damages. A judgment for an injury occasioned by its violation is on an equal footing with judgments for injuries by whatever negligence or default. Surviving relatives have like security, and no better, for the damages recovered, as if the deceased had died of a boating, or of injuries caused by other negligence of the same offender. The Act of 1854, cannot be considered as a part of the license system. No just interpretation of the Act of 1856, would make the bond therein required a security for damages arising from violations of the Act of 1854, and it is safe to say it never was so understood. To hold such damages within the Act of 1875, requires too much implication and too great departure from the obvious meaning of the bond, which is in a sum scarcely sufficient as a security for the damages, costs and penalties specified in its condition. Judgment reversed.