text:
    Pidcock et al. versus Potter.
    1. Partial unsoundness, not affecting the general faculties and not operating on the .mind of the testator in regard to testamentary disposition, is not sufficient to make a person incapable of making a will.
    2. If unsoundness of mind is proved to exist on the day the will is made or the instructions given, it is proper to trace the unsoundness up to the moment of the death of the alleged testator.
    3. Medical men, as experts, give their opinion upon hypothetical cases or upon facts proved.

      4. The subscribing witnesses may testify as to the state of the decedent’s mind, and in addition to facts may give their opinion.
    5. _ After a non-professional witness has stated the facts on which his opinion is founded, he may state his opinion as to the sanity of the testator.
    6. General reputation as to a testator’s sanity is not evidence.
    March 31st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycominq county: of January Term, No. 97.
    This was an issue under a precept from the Register, filed in the Common Pleas, May 18th 1870, to try whether a. certain paper writing was the will of Ozias Potter, deceased. The paper was^ dated March 2,7th 1869. The issue was framed between Bulina Pidcock and Sarah Pidcock plaintiffs, and Ella R. Potter defendant.

      Mr. Potter died September 6th 1869, leaving to survive him Eliza Potter his widow, and Ella R. Potter the defendant, a child adopted under the Act of Assembly for that purpose: he left no children of his own.
    The provisions in the paper were as follows:
    Ilis “ administrator” to procure a lot in the cemetery and put up a suitable monument, fixtures, &c., at a cost not exceeding $2000. He gave to his wife a house and lot for life and his household and kitchen furniture, also $1500 per annum, for life, “provided, however, if my said wife shall claim her dower at law,” the bequest to be void.
    To Bulina and Sarah Pidcoek, or the survivor for life, a house and lot, and $400 per annum each for life.
    “ To Laura C. Fleming, a daughter of my friend and counsel Robert Fleming $500, to be a full compensation (to him) for professional services in the settlement of my estate.” He directed his “ administrator” to pay to James A. Smith, whom he appointed trustee, enough money to be invested to raise the annuities, pay expenses, &c., and directed that the trustee’s compensation should not exceed $400 per annum.
    He further expressed a desire to make “ a permanent provision” so far as his residuary estate should be sufficient “ for the maintenance and support of the poor” of Williamsport, and for that purpose he gave the residue of his estate to the authorities of that city: so far as it should be in money to invest the money, and so far as it should be in real estate to rent the real estate, and the • income to be appropriated to the poor, any other appropriation to forfeit the fund.
    In case James A. Smith should decline to act as trustee, he gave him an annuity of $400, to be raised as the other annuities; and the compensation to the trustee to be appointed in SmifE’s place, was not to exceed $100.
    He made no provision of any kind for his adopted daughter; and appointed no executor. The paper was witnessed by D. F. Weiss and Robert Fleming. At the date of the will and long before he was the owner of a cemetery lot.
    The issue was tried August 30th 1870, before Gamble, P. J. The plaintiffs having proved the execution of the paper and read it, closed.
    The defendants called Dr. A. Richter, who had been the attending physician of Mr. Potter from March 1st 1867 to August 19th 1869. He stated that Mr. Potter was affected with heart disease.
    1. The defendants proposed to ask the witness: “What was the nature of the diseases with which Ozias Potter was affected, and describe the nature or effect of such diseases upon the brain?” The offer was objected to by the plaintiff, admitted, and a bill of exceptions sealed.
    The witness, after giving the symptoms and saying that the effect of the disease upon Mr. Potter was stupefying, was asked:
    2. “ Whether from his actual knowledge of Ozias Potter on the 26th and 27th of March 1869, he considered him fit or unfit to make a will ?”
    This was objected to by the plaintiff, admitted, and a bill of exceptions sealed. The witness testified that he did not think Mr. Potter fit at those dates to make a will.
    The witness stated also facts in the conduct and deportment of the deceased tending to show incapacity.
    Other physicians who had attended him were examined; they spoke of his disease and its effect on his mind in the same manner as Dr. Richter.
    8. Dr. Rittenhouse was asked to state “ the relations between the testator and his daughter, and the terms of affection upon which they were living at, and about the time the will was made.”
    This was objected to by the plaintiffs, allowed, and a bill of exceptions sealed.
    The witness testified that Ella showed him all the attention that a daughter naturally would, &c.
    Dr. Pollock was shown a diagram, which he said was a diagram of the heart, veins, lungs, &c.; he was asked:
    5. “ To explain to the jury the action of the heart and lungs, and the effect upon the heart of respiration; this for the purpose of giving to the jury the means of better comprehending the testimony already in evidence.”
    Objected to by plaintiffs, admitted, and a bill of exceptions sealed.
    J. H. Wonderly, who had been the partner of the decedent, testified facts for the purpose of showing that the decedent in his judgment was incapable of making a will; he was asked to state:
    6. “ What be heard the testator say, if anything, at or about the time of the execution of his will, in relation to the municipal authorities of Williamsport, in respect to their management of municipal affairs, and that he expressed disapprobation and want of confidence in their judgment and ability to conduct the affairs of the city.”
    7. Also, “ whether the testator, in March 1867, informed him that he had made a will, and what disposition of his estate he had made thereby. To be followed by proof that after March 27th 1869 the testator upon several occasions referred to the disposition of his estate as he had stated it to the witness in March 1867, v and stated that his estate remained disposed of in the same manner.”
    8. Also, “ whether, or not, in any of the several conversations mentioned by him, as taking place after March 27th 1869, the #testator, in speaking of the disposition of his estate, stated or 'referred to such a disposition thereof, as is made by the alleged will of March 27th 1869.”
    9. Also, “ whether from his actual knowledge of Ozias Potter upon the 26th and 27th of March 1869 he considered him fit or unfit to make a will ?”

    These offers were objected to by the plaintiffs, admitted, and several bills of exception sealed.
    Witness testified that he had heard Mr. Potter speak disparagingly of the city authorities; that after the date of the paper he had heard decedent speak of having made a will with provisions materially different from those in the paper in dispute, and although the had often spoke to witness about his will, he never spoke of such provisions as this paper contained, and that he did not consider him at its date fit to make a will.
    J. A. Smith, the trustee named in the paper, after stating facts tending to show incapacity, was asked:
    10. “ Whether from his knowledge of decedent he considered him fit to make a will on the 26th and 27th of March 1869 ?”
    This was objected to by the plaintiffs, admitted, and a bill of exceptions sealed.
    Witness testified that he did not at those dates consider the decedent competent to make a will.
    Henry Webster testified that in 1868 the decedent told him what disposition he had then made of his estate.
    11. “ The defendant then proposed to ask the witness, what the testator said, if anything, in June 1868, respecting the disposition of his property by will; to be followed by evidence, that after March 27th 1869, he informed the witness and others that he had made the same disposition of his estate as stated to the witness in June 1868.”
    This was objected to by the plaintiffs, admitted, and a bill of exceptions sealed.
    The witness testified at large as to conversations he had with the decedent tending to show his incapacity, and of statements before 1869 of his disposition of his estate; also, that decedent spoke after the date of the will of the disposition of his property, which was the same that he had before said it was.
    To all tbe witnesses who testified on this point, he said of his will before 1869, that he had made provision for Ella, and the provision which he said he had made was quite large.
    Some of the witnesses testified that in their conversations with the decedent he talked much about going into land speculations; of his great wealth; that he could “put his hand on $100,000;” could give his check for $100,000, &c.
    The defendants gave evidence that the real estate of decedent was worth about $37,000, and his personal estate about $13,000. They gave much evidence tending to show incapacity in the decedent before and at the time of making the will and after-wards, and rested.
    The plaintiffs in rebuttal called; Rev. Dr. Spotswood, who testified that he had intercourse as a minister of the gospel with the decedent, and that his conversation and conduct were rational.
    1. The plaintiffs offered to prove by the witness, and by others who lived in the immediate vicinity of testator, and were intimately acquainted with him and his neighbors, and had been for a series of years, that they had never heard till after his death that he was of unsound mind, or that he was mentally incapable of transacting his ordinary business.
    This was objected to by the defendant; the evidence rejected, and a bill of exceptions sealed.
    Robert Fleming, Esq., testified: * * * “ I drew a will for Mr. Potter, about March 1869 — being the third or fourth will I had drawn for him. (Will in question being shown witness.) I drew this will; Ozias Potter dictated this will; it is his will, not mine; it was not drawn in his presence; after he became ill, I went to see him; I visited him frequently until shortly before his death; I can’t tell the time first will was drawn. This will, not this paper but one goodly similar to it, was written before he went south; my recollection of writing this will, is that when I heard he had returned from the south, I went up to see him ; not long after, he introduced the subject of having his will re-written; on getting from him his wishes in that respect from time to time, what he wished done with his property, I drew this will in the end; the will was written in my office from memoranda taken from him at bis room; no other person was present or in hearing that I know of when he talked to me about the disposition of his property ; he had executed other wills prior to this time; he signed the first in lead pencil; he always committed the wills to my care; as soon as I wrote a new one I destroyed the old one; I went up to see him frequently, and talked with him a good deal, to get his mind off his disease; it was on one or more of these visits, that I made the memoranda from which this will was drawn; I took the will up to him after I had written it; the time of taking it up for him to sign, was at his request made perhaps the evening before; when I got there I don’t know whether any one else was in the room or not; usually Ella or Mrs. Potter opened the door; there was no-one else in the room but Potter and myself; after he had got in as comfortable position as possible, I read the will over to him carefully and deliberately, he then went to the door and got a pen and ink from some one, he took the pen and signed the will, I asked him who I should get for a witness, he said, get Mr. Weiss, I got him, and we went back together and signed the will as- witnesses; I recollect of Potter saying at one time, I can’t say when, in speaking of Mrs. Potter he brought in Ella’s name in this way. That (referring to the provision in the will for Mrs. Potter) was ample for them both, or for Mrs. Potter and Ella, if they took care of it, and if they didn’t take care of it, it was too much ; I can’t speak positively whether the memorandum was made before he went south or not — I thought I wrote something like it before he went south, but I can’t say positively.”
    On cross-examination he said :
    “ I think I was counsel from or about the time of formation of the company; I drew a will in 1867.”
    13. The defendants proposed to ask witness: “ What were the contents of the first will of Ozias Potter, written by you for him in March 1867, or thereabouts, of which you have spoken in your examination in chief?”
    The plaintiffs objected; the evidence was admitted, and a bill of exceptions sealed.
    Witness said: “ In the first will I wrote he gave the house and lot in which he lived to Mrs. Potter absolutely; he also gave her the household and kitchen furniture, horse, buggy, sleigh, harness and robe; the amount of annuity I am not so clear about, but my impression is it was about $2700. He made a bequest in that will tto Ella by name; my remembrance is, that it was $1000. He spoke of a number of articles he had purchased for her and among others a piano; there may have been some other minor matters that I do not now recollect; after making them bequests he bequeathed the firm property of O. Potter & Co. to J. H. Wonderly, subject to the payment of the debts; Wonderly was to have the firm property; I don’t remember how long the annuity was to continue; I wrote the will of March 1869 from memoranda taken previously; I undoubtedly destroyed the memoranda; I cannot tell just when I made it; I recollect the time that Potter had the small-pox; I can’t speak of his decay after that time, from my intercourse with him, after heart disease developed he changed in manner; I don’t speak of the mind.”
    The plaintiffs gave much evidence for the purpose of showing the capacity of the decedent, and of disproving the defendant’s case.
    The plaintiffs requested the court to instruct the jury:—
    1. That if the jury believe the evidence of General Robert Fleming, that the testator dictated the will in the manner described» by him in connection with the will itself and the probate thereof, the evidence of testamentary capacity is conclusive, and the plaintiffs are entitled to recover.
    2. [That if the jury believe that the testator understood in detail all he was about when he dictated and executed his will, it is sufficient to sustain the will.] That it was not necessary that at the time lie should have a recollection of all his estate, his family relations in life, their condition in general and the probable effect the proposed disposition will have, and to collect this all' in one view.
    3. That all the evidence material in this issue is, whether the testator had or had not testamentary capacity at the time of ' making his will.
    5. That if the jury believe that the mind and memory of the testator was active enough to enable him to understand and direct the business in which he was engaged when executing his will, their verdict should be for the plaintiffs.
    6. That if some witnesses do depose that the testator was of perfect mind and memory, and others depose the contrary, their testimony is to be preferred which depose that he was of sound memory, as well for that their testimony tendeth to the favor and validity of the testament, for that the same is more agreeable to the disposition of nature, for every man is a creature reasonable.
    7. That if the testator was capable of knowing and appreciating the nature, effect and consequences of the act he was engaged in when he executed his will, their verdict should be for the plaintiffs.
    The court charged: * * * “ Then what is the issue which you have been sworn to try? It is whether this is a devise or not. Whether this paper bearing the signature of Ozias Potter, and having the legal form of a will, is in fact and in truth his last will and testament. Primá facie it is his will, and has been admitted in evidence as such, and the plaintiffs rested their cause securely in the first instance upon that evidence alone, which if unimpeached would entitle them to your verdict.
    “But it is alleged by the defendant that it is not a legal devise for want of testamentary capacity in the devisor at the time of its execution. And much evidence bearing upon that question has been introduced by both parties, which it will be your duty carefully to consider. You will bear in mind that the point of time to which this inquiry is to be properly directed, is the 27th of March 1869, the time of the execution of the will. Evidence has been admitted of the character and general tendency of his disease, of his symptoms, his physical and mental condition shortly before and shortly after that date, but only for the purpose of aiding you to ascertain and determine the condition of his mind on the 27th of March 1869.
    “ Was the testator on that day of sound and disposing mind, memory and understanding ? If so, then this is a legal devise of his estate. If not, it is not a legal devise, for want of testamentary capacity.
    “ It will be proper for the court to define, as well as practicable, what capacity the law requires in a testator to execute a valid will. No arbitrary or universal standard of testamentary capacity can be given. Persons differ materially in tbeir natural capacity of mind, memory and understanding. Estates differ in extent and character, and the disposition of them may be simple or complex. A weak mind and imperfect memory may be competent to dispose of a small estate understandingly, or make a simple division of a large one understandingly, which would be utterly confounded and incompetent to dispose of a large estate, involving complexity of division and distribution. Hence the measure or standard of testamentary capacity must relate to the circumstances of’ each case, and be determined by a careful consideration of all the evidence which sheds the light upon inquiry.
    “We cannot quote any clearer or better general definition of the necessary capacity to make and execute a valid will, than that adopted by our own Supreme Court, in the case of Daniel v. Daniel, 3 Wright 191: ‘ A sound and disposing mind and memory is one in which the testator is shown to have had, at the making and execution of his will, a full and intelligent consciousness of the nature and effect of the act he was engaged in — a knowledge of the property he possessed — an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty. It is not necessary he should collect all these in one review. If he understands, in detail, all he is about, and chooses with understanding and reason between one disposition and another, it is sufficient.’ ”
    The court then reviewed the evidence, and answered the points as follows: — ■
    In answer to the plaintiff’s points, the court said:
    “ 1. Answered in the negative.
    “ 2. The first paragraph included in brackets is affirmed without qualification. The residue of the point is affirmed, with this qualification: that it is necessary that the testator should have memory sufficient to have a general knowledge of the property he possessed, a recollection of the persons and objects of his bounty, an understanding of the disposition he intended to make of his property, and an intelligent consciousness of the nature and effect of his act; but it is not necessary that the testator should be able to collect all this in one comprehensive view.
    “ 3. Affirmed.
    “ 5. Affirmed.
    “ 6. The presumption of law is in favor of sanity, that being the normal condition of reasonable creatures. Hence when witnesses of equal intelligence, equal opportunities of judging and equal credibility, differ in their judgment of the testamentary capacity of a testator, in other words where the testimony upon that point is equally balanced, then the presumption in favor of sanity should prevail. But it is the duty of the jury to weigh all the evidence in the cause, giving to each witness the consideration and weight his or her testimony in entitled to.
    May 18th 1871,
    “7. Affirmed.”
    The verdict was for the defendant.
    The plaintiffs sued out a writ of error. They assigned for error:—
    1-10. The admission of the evidence contained in the defendant’s offers, Nos. 1-3, 5-9, 11, 13.
    11. Rejecting defendant’s offer No. 1
    12. Negativing the plaintiffs’ 1st point.
    13. “The court erred in their general charge to the jury in making no reference to the evidence, furnished by the will itself, of mental capacity, and in making no distinction between the positive evidence of what occurred at the drawing and execution of the will, and the other evidence in the case; and in giving no prominence to the testimony of the subscribing witnesses.”

      S. T. P[. Q. McCormick and B. S. Bentley $ Son, for plaintiffs in error,
    cited as to 1st error, 1 Redfield on Wills 101 and note 104, 105.
    2. Logan v. McGinnis, 2 Jones 31; Pool v. Richardson, 3 Mass. R. 330; Titlow v. Titlow, 4 P. F. Smith 216; Dickinson v. Barber, 9 Mass. 225.
    6 and 7. Moritz v. Brough, 16 S. & R. 403.
    10. Kachline v. Clark, 4 Whart. 319.
    H. Stevenson v. Stevenson, 9 Casey 471.
    12. Harden v. Hays, 9 Barr 156.
    13. McMasters v. Blair, 5 Casey 302.

      11. 0. Parsons, W. H. Armstrong and Linn, for defendant in error cited,
    Wharton & Stille’s Medical Jurisprudence, p. 20, sect. 17; Titlow v. Titlow, 4 P. F. Smith 216; Dickinson v. Dickinson, 11 Id. 401; Wogan v. Small, 11 S. & R. 141; Norris v. Sheppard, 8 Harris 477; Rambler v. Tryon, 7 S. & R. 90; Irish v. Smith, 8 Id. 581.
   The opinion of the court was delivered.

by Read, J.

Insanity and its treatment have, of late years, been the subject of close and accurate scientific investigation, which has modified some of the doctrines laid down by eminent judges, or rather, their application to particular cases. Insanity is a disease which may be either general or partial, and the opinion of Lord Brougham in Waring v. Waring, in the Privy Council, July 17th 1848, in relation to partial insanity or monomania, and approved by Lord Penzance in Smith v. Tebbitt, 36 L. J. R., N. S., Probate Court, 97, August 1867, has been shaken if not overruled by the Court of Queen’s Bench, in Banks v. Goodfellow, 39 L. J. R., N. S.,Q B. 257; 5 L. R., Q. B. 54, on the 6th July 1870, Lord Chief Justice Cockburn delivering the opinion of the court. The opinion is a very learned and elaborate one, citing the opinions of foreign text writers, and also American decisions, and holding that partial unsoundness not affecting the general faculties, and not operating on the mind of a testator in regard to testamentary disposition, is not sufficient to render a person incapable of disposing of his property by will, and this seems to be the opinion of Dr. Ray, in his treatise on the medical jurisprudence of insanity, 5th edition 1871, ss. 302, 303.

If unsoundness of mind is proved to exist on the day that the will is made or on the day the instructions are given, it is certainly permissible to trace the unsoundness both before and after that period, up to the very moment of the decease of the alleged testator. This necessarily opens a wide door to the admission of evidence; subscribing witnesses, of course, testify to the state of the testator’s mind, and in addition to the facts, give their opinion. The same is the case with medical men, who, as experts, may give their opinion upon hypothetical cases or upon the facts proved: 1 Greenleaf’s Ev., s. 440. In Pennsylvania it has always been the rule, that after a non-professional witness has stated the facts upon which his opinion is founded, he is permitted to state his opinion as to the sanity or insanity of the testator: 1 Redfield on Wills 141. From Rambler v. Tryon, 7 S. & R. 90, decided by Judge Duncan in 1821, and Wogan v. Small, 11 S. & R. 141, decided by Chief Justice Tilghman in 1824, to Titlow v. Titlow, 4 P. F. Smith 216, in 1867, and Dickinson v. Dickinson, 11 Id. 401, in 1869, our decisions have been uniform on this point.

Ozias Potter had a wife and an adopted daughter whom he had taken in 1861, when she was a little girl, and to both of whom he was affectionately attached. He had been in business with Mr. Wonderly, under the firm of Potter & Co., which appears to have existed, in some shape or form, up to the time of his death on the 6th September 1869.

His will was drawn by General Robert Fleming, and is dated the 27th March 1869. The instructions were given by the decedent to General Fleming, on Good Friday, the 26th March, in the evening, in the bed-room, no other person being present. The will was drawn in General Fleming’s office and was executed the next evening, Mr. Weiss and the general being the witnesses. Neither the wife nor daughter ever knew of this will, the existence of which was known only to the witnesses. From the testimony of Dr. Richter, the attending physician, it is clear that he was entirely unfit to make a will, in which he is supported by the direct and positive testimony of Mrs. Potter.

In 1863, Mr. Potter had a severe attack of small-pox, which shook his constitution and evidently impaired both mind and body,- and changed his character. In11867, he was afflicted with the heart disease, which gradually increased, affected his brain and finally terminated his life. About March 1867, he made a will, the contents of which were proved by General Fleming who drew it, Mr. Wonderly and others. This will provided amply for his wife and daughter, and was made with a full knowledge of the value of his property, and this is the only will any one knew of, excepting the witnesses to that of the 27th March 1869. He ceased transacting any business in August or September 1868, and his condition is traced up till he went south, on the 27th January 1869, accompanied by Mr. Wonderly, to take care of him, and returned 9th February 1869, not improved; and his disease, with dropsy on the chest, had a powerful effect upon the brain. His mind became filled with visionary speculations demanding large capital, and the supposed ownership of property that did not belong to him. He often spoke of his will, describing its provisions as in that of 1867, and never in any way alluding to that of 27th March 1869, as if he had entirely forgotten its execution. The evidence of the medical witnesses and of the others who knew Mr. Potter well, was very strong in proving that he was incompetent to make a will on the 27th March 1869. Mr. Potter’s property was a little over $30,000, and he ordered at least $2000 to be expended in purchasing a suitable lot in a cemetery (having one already), and to erect thereon a suitable monument. He gives his wife their residence during her natural life, his household and kitchen furniture, and $1500 during her natural life. If she claims her dower, these bequests to be null and void. Me never even names his daughter Ella. To Bulina and Sarah Pidcoek he gives a house and lot during their natural lives. To said Bulina and Sarah, each $400 per annum, during the natural life of each. For the purpose of paying these annuities, amounting to-$2300 per annum, and $400 per annum as a compensation to said trustee, he directs a sum to be paid him to be invested to produce those sums. The residue of his estate he gives to the city of Williamsport, for the benefit of their poor.

Mr. Smith, the trustee, renounced the legacy to him, and the city of Williamsport treated theirs in a similar way.

It was a cruel and unjust will, and the first and last provisions for the monument and the poor were perfectly absurd, in view of the small estate he died possessed of.

The learned judge delivered a very clear and sensible charge to the jury. He affirmed the plaintiffs’ 3d, 4th, 5th and 7th points, and as the plaintiffs must have known was his duty, he negatived the 1st point. The 2d and 6th points were properly answered. Whatever, therefore, is assigned for error, either as to these points or as to the charge, is not sustained. These remarks dispose of the 12th and 13th errors assigned.

The first ten errors assigned are disposed of by the remarks already made, and as to the 11th error, the court were right in rejecting evidence of general reputation.

I submitted the paper-books to Dr. Isaac Ray, who has favored me with a most careful analysis and review of the facts of this case, and thus closes it with these words: “ In view of all these facts, I cannot avoid the conclusion, that in March 1869, Ozias Potter did not possess ‘a sound and disposing memory.’ ”

Judgment affirmed.

The following is the review of Dr. Ray, directed to be reported as a note to this case:—

“ If the testator labored under any form of mental disease, it was not that of delusion concerning his wife or daughter, nor that of mania marked by incoherence, irregularity and excitement. The only kind of mental disturbance that can be alleged with any show of reason, is that which is the sequel or accompaniment of other bodily disease, and which is indicated rather by weakness of judgment, loss of memory, imperfect appreciation of one’s relations to others, disregard of little proprieties, freaks and caprices, vacillation and change, than by strange notions or disorderly behavior. It must be admitted that the mental disturbance, if any such existed, was not very demonstrative in its character, and was obvious only to those who had intimate relations with him.

“ The question then is, whether the evidence showed any such mental disorder as would render the testator incompetent to make a will. And here it must be borne in mind that such mental disorder is often exhibited in an unsteadiness and weakness of mind obvious enough to the careful observer, but from lack of any striking incident, not easily proved to others. Hence it is that those who have had the best opportunities of observing the patient, are obliged, when required to give the reasons for their belief, to resort to particular incidents which made much less impression on themselves, than those general habits of thinking and feeling of which they can convey but a very imperfect idea to others. However, it is the former which furnishes the most available proof of mental disorder, and we are bound to inquire how far such proof is obtained from the evidence in this particular case.

“ His wife testifies that ‘‘ ever after he had the small-pox, in 1863, he was nervous and irritable, which condition increased until his death.’ (35.)

“ This fact shows that the health of the brain had been more or less impaired, and this effect was intensified by the subsequent disease of the heart. Wonderly, who had better opportunities of observing his mental traits than any one else out of his own family, says that he ‘ first noticed failing of mind in 1868,’ and it appears that in consequence of this failing, he ceased to do business in connection with the firm. James Smith, who also had good opportunities of observing the testator, says he stated to him (Smith) that he gave up charge of business ‘ because he did not feel well enough to attend to it.’ (43.) Smith also says that from 1866 the testator spoke of a ‘pressure on his head,’ and ‘it felt so bad that his memory was affected.’ Webster, who worked for him, and saw him every day, says he observed ‘ a marked change in his mind’ ever since 1867; ‘ he did not seem to be the same man he was; he had different views of things; his mind seemed to be bewildered after he came back from south.’ Henry Smith says, in regard to some business transactions, that he would not have understood clearly what he was doing, unless his bookkeeper had told him it was all right.’ ‘In March 1867,’ he proceeds, ‘ I would not have made a contract with Potter. I considered him incapable of doing any big amount of business.’ (57.)

“ This evidence, coming from such parties, renders it quite certain that his mind had lost its original vigor and grasp, under the influence of bodily infirmities; but it is very far from showing that Sort of deficiency which necessarily implies testamentary incompetence. Still it may, in consequence of that disturbance of the affective powers which often accompanies this intellectual condition. Patients of this description are often governed by freaks and caprices whereby they are led to undo what they have already done in their wisest moments. A new idea enters their head, and, for a time, it masters them completely. One of the results of this state of things is a disposition to alter their wills. Some old men, whose minds have been weakened by age and infirmity, have a passion for making wills, which indicate not so much a sensible disposition of their property as the occurrence of a temporary caprice or irritation. If discreetly managed by their advisers the humor passes away, and the old will remains unaltered. From the testimony of General Fleming, it would seem that the testator was one of this description of persons. He says: ‘ He had executed other wills prior to this time.’ ‘ As soon as he wrote a new one,’ this witness says, ‘I destroyed the old one.’ (72.) This frequency of making wills, under such circumstances, must greatly discredit his testamentary capacity.

“ But at the very least the mental impairment in question furnishes a foundation on which more demonstrative proofs of testamentary incapacity may be laid. The testimony exhibits a few such, and in this connection they are not without much significance. Wonderly says that when about closing their business (1868) they mutually agreed to buy no more lumber, notwithstanding which, Potter bought one million lath without consulting him, and paid more than the market price. Whether this proceeded from a lapse of memory, or intentional violation of his agreement, it was equally indicative of mental disorder. He once imagined that some lumber was rotting, and requested Baird to take it away (54) apparently as a gift. Wonderly says the lumber was sound, properly piled and covered, and was sold for $6000 or $7000. (55.) This was some two or three months subsequent to the date of the will, but it unquestionably was the result of an habitual condition that began long before. It was one of those fancies incident to that state of mind, and which, with a little more permanence, might be properly called a delusion. A certain heedlessness of values and of financial proprieties, if I may so speak, very characteristic of insanity, was evinced in his offer to Nicholas to give him a check for $100,000 in furtherance of an absurd speculation he had proposed. (51.) The foundry property he declared to be worth $200,000. (46.) With the same disregard of actual realities, he offered to give Webster a farm (47), and the same kind of extravagant gifts he offered to other witnesses. Even after the will was made he continued to speak of his bequests to his wife and child, as they were in a former will, and though frequently alluding to his provisions for them, he never spoke of the will last made. To avoid the conclusion that he had entirely forgotten it, and thus given a proof of mental unsoundness, it was alleged that this was purposely done in order to prevent remark and dispute. This certainly is possible, but not very probable. If the whole transaction had passed out of his mind it would have been no more strange than his forgetfulness of his arrangement with Wonderly.

“ These particular incidents render it quite certain that his mind was not only weak — deprived of its normal degree of power —but that it had often actually wandered from the track, and became unsound as well as weak. Still, for all that, he may have made a proper will. The question next to be considered is, whether the present is a proper will, entirely free from all influence of mental disease. If it made a disposition of his property very different from that of any former will, and such a disposition as in some important respects would seem unjust and capricious; if it betrayed forgetfulness of certain well-known facts, then it may be fairly inferred that the disorder otherwise manifested, both before and after, had affected his testamentary provisions.

“ By the will of 1867 he gave his wife an annuity of $2700 and the homestead absolutely, and to the daughter $1000 absolutely. By the last will the wife’s annuity is reduced to $1500, with only a life interest in the homestead, and the daughter is not once mentioned nor alluded to. Thus the latter was entirely dependent on the widow, and if she had died immediately after the testator the daughter would have been turned adrift without a penny. No adequate cause for this change is assigned. It does not appear that he lost his affection for his wife and daughter, or that they were otherwise provided for. Although professing a desire that the daughter should be educated in the usual accomplishments of young women, and always saying that they would be amply provided for, he does not seem to have apprehended that the bequest to his wife was altogether inadequate for their maintenance and the daughter’s education. The impropriety of this provision is rendered still more glaring when considered in connection with the bequests to the two plaintiffs. These two women had nursed him during his last illness, and somewhat during the year or two previous. Some testamentary acknowledgment of these services would have been quite proper, but the actual bequest of an annuity of $400 to each, with a house and lot, is so out of proportion to the provision made for the wife and child as to raise a suspicion of mental unsoundness. Of course a sane man may do what he pleases with his own — neglect those near and dear to him and bestow his fortune on strangers — but this liberty is not allowed to one who has given indications of mental unsoundness. In his case every provision must be closely scrutinized, and every sign of partiality or injustice will be necessarily viewed with strong suspicion. The bequest to Smith of $400 per annum is of a kind to excite the same feeling, for Smith was not related to him, and had no claims upon his bounty. To gratify a mere caprice at the expense of his wife and daughter can hardly be offered as a proof of a sound and disposing mind. Another provision of the will betrays a lapse of memory scarcely compatible with the idea of testamentary capacity. He directs his executors to buy a suitable lot in a cemetery, and erect on it a monument with corresponding fixtures and improvements. But it seems he had already obtained a lot in a cemetery (32), had made improvements on it (37) and suggested others, and even after the date of the will had visited it, and indicated the spot where he wished to be buried. (47.)-

“It is impossible to escape the conclusion either that while preparing his will he was oblivious of the fact that he already owned a burial-place, or that while visiting this place during the summer of 1869 he had utterly forgotten this provision of his will. Both suppositions are fatal to his testamentary capacity, and render it highly probable that while making his will, the fact that he had an adopted daughter did not occur to him. This failure of memory would not have been more strange than the former actually was. The bequest of the bulk of his property for the support of the town’s poor looks far more like an inconsiderate freak than a wise and benevolent attempt to improve their, condition. Eor this purpose some special appropriation of the funds should have been provided for, whereby some benefits or privileges would have been secured to them in addition to those furnished by tbe town. As it is, however, the poor are no better off than they were before. The only effect of his bounty is to relieve the town of Williamsport of some of its burdens.

In view of all these facts I cannot avoid the conclusion that in March 1869 Ozias Potter did not possess a sound and disposing memory.’ ”


source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    The West Branch and Susquehanna Canal Co. versus Mulliner.
    1. A state canal being sold, the purchaser took it cum onere subject to the duties upon the state.
    2. The state is not liable for consequential damages, the constitutional limitation applies only to a talcing.

    3. If no provision be made for consequential damages in an act transfering a state canal, the purchaser is not liable for them.
    4. For wantonness or negligence a company purchasing state canals may be answerable, but not for the result of repairs made boná fide, with a view to maintain the efficiency of the canal.
    January 26th 1871. Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.'
    Error to the Court of Common Pleas of Snyder county: No. 136, to July Term 1870.
    On the 1st of November 1865, Daniel Mulliner brought an action on the case against The West Branch and Susquehanna Canal Company, and averred in his declaration that the defendants raised the water in their canal higher than it was when they became the owners of it, and that by reason thereof it was forced into the plaintiffs’ cellar, injuring it, the wall of his house, &c. The canal was built by the Commonwealth and sold by virtue of an Act of Assembly to the Sunbury qnd Erie Railroad Company. The defendants were incorporated April 21st 1858, and became the owners of the canal.
    The cause was tried December 15th 1869, before Woods, P. J.
    The plaintiff gave evidence that the canal had been raised every year, and that in 1865 especially, the water came into his house and did him much injury; that in 1865 there was a great freshet, the water then being higher than it had ever been before. There was much other evidence by the plaintiff as to the raising of the water and the injury to his property.
    The defendants gave evidence in answer to the plaintiffs’ ease.
    The defendants’ points and their answers were as follows:—
    1. Even if the water was raised in the canal, in 1865, the Commonwealth or its alienee had a perfect right to do so, especially if it was necessary to keep up the navigation so as to accommodate the boating business.

      Answer: “ This point we answer as requested.”
    2. This action of trespass upon the case cannot be maintained, and therefore plaintiff is not entitled to recover.
    Answer: “ This we refuse to answer as requested.”
    3. If the plaintiff purchased with a full knowledge that the water ran from the canal into his cellar, and other parts of his house, this action cannot he sustained.
    Answer: “ If the water had been at the same stage in 1865, as it was when Mr. Mulliner purchased, this would be so, and we would answer it as requested.”
    The court after referring to the character of the suit and the facts charged: * * * [“You will ascertain whether the defendants did raise the water any in the year 1865, and if so, what damages did the plaintiff sustain by reason thereof.”] The defendants deny that the water was raised as alleged and charged by the plaintiff, and contend that even if they did the plaintiff cannot recover in this action. That the plaintiff has mistaken his remedy. That an action at common law cannot be sustained in such a case as this against this corporation.” * * * “ This canal company is formed by virtue of the Act of April 21st 1858, above referred to. This act does not point out how any person is to proceed to ascertain any damage inflicted on him by this company. It does not say that any damage sustained by an individual shall be ascertained in the manner it was done when owned by the Commonwealth, nor does it point out any other remedy. By the 7th section it is provided that the company shall pay any damage sustained in relation to the location, construction, repair, management or use of any of the canals sold by that act, ‘ the amount to be ascertained and payment made as the legislature may direct.’ The legislature has not, that we know of, pointed out how these damages are to be ascertained, and until they do, the common-law remedy remains to those who are injured.
    [“ We therefore instruct you that this action can be sustained if the defendants raised the water in their canal higher than it had been before 1864 or 1865, and thereby injured the property of the plaintiff. If you shall so find, then the plaintiff would be entitled to recover whatever damages he may have sustained from the time of the purchase of this property by him up to the date of the commencement of this suit.] You cannot include any damage the property may have sustained before the plaintiff became the owner of it, or any that it may have sustained since this action was commenced.”
    The verdict was for the plaintiff for $300.
    The defendants sued out a writ of error and assigned, amongst others, the following errors:—
    3 and 4. The answers to the defendants 2d and 3d points.
    5 and 6. The parts of the charge in brackets.

      JD. B. Miller and Gr. B. Miller, for plaintiffs in error.
    The act for constructing this canal as a state work, approved April 9th 1827, by the 8th section provides “ that if any person shall consider himself aggrieved by reason of the canal passing through the lands of which he is owner, or by interfering in any manner with his rights of property, he may, at the completion of the work, thereupon or within one year thereafter, petition the Court of Quarter Sessions of the proper county, &c., who shall appoint five reputable citizens, &c., whose duty it shall be, &c., to report such damage as they or any three of them shall think the owner has sustained by reason of said canal,” &c. By the 6th section of the Act of April 2d 1830, the governor was authorized to appoint three individuals as a board of appraisers to assess damages done to private property. The act for the sale of the state canals, approved April 21st 1858, § 4, provides “ that, on securing the purchase-money, the governor shall transfer to the Sun-bury and Erie Railroad Company all the said works with the appertenances.” The 5th section provides that “the said Sun-bury and Erie Railroad Company shall have authority to sell and convey, &c., said property to any corporation, &c.; * * * and the Sunbury and Erie Railroad Company, or their assigns, immediately after taking possession of the said canals, shall be bound to keep up the same, as heretofore done by the canal commissioners, in as good repair and operating condition as they now are, and they shall be and remain public highways for ever,” &e. The 7th section provides “that any and all claims for damages or other demands against the Commonwealth by individuals or companies in relation to location, construction, repair, management or use of any of the divisions of canal sold under provisions of this act shall, if established, be paid by the purchaser of the proper line of division, the amount to be ascertained and payment thereof made as the legislature may direct.” They cited, also, Commonwealth v. Reed, 10 Casey 275; Commonwealth v. Fisher, 1 Penna. R. 462; Zimmerman v. Union Canal Co., 1 W. & S. 346; McKeen v. Del. Div. Canal Co., 13 Wright 438; Schuylkill Navigation Co. v. McDonough, 9 Casey 77; Craig v. Allegheny, 3 P. F. Smith 477; Western Penna. Railroad Co. v. Johnston, 9 Id. 293 ; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; Philadelphia and Trenton Railroad Co., 6 Whart. 25; Henry v. Pittsburg and Allegheny Bridge Co., 8 W. & S. 85; Monongahela Navigation Co. v. Coon, 6 Barr 379; Mifflin v. Railroad Co., 4 Harris 182; New York and Erie Railroad Co. v. Young, 9 Casey 175; Watson v. P. and C. Railroad Co., 1 Wright 469 ; McKinneys. Monongahela Navigation Co., 2 Harris 65; Reitenbaugh v. Chester Valley Railroad Co., 9 Id. 100.

      March 30th 1871,

      J. O. Bueher and A. Q. Simpson, for defendant in error.
   The opinion of the court was delivered,

by Thompson, C. J.

This was an action brought by the plaintiff below against the canal company to recover damages for an injury done by raising the water of the canal, so that plaintiff’s house was flooded, and thereby damaged and injured. The damage done, it will be conceded, was a consequential one. It comes within a class of cases of damage to be found in our reports, such as The Monongahela Navigation Co. v. Coons, 6 W. & S. 101. The canal originally belonged to the state, and the company took it cum onere, subject to the duties upon the state, and the first question which presents itself is, would the state have been liable for consequential damages if she held it? In the case above referred to, Chief Justice Gribson shows very clearly that the state would not be liable for damages of a consequential character, because the constitutional limitation applies only to an actual talcing of property, and the word “ talcing” was to be construed in its natural significance. It is said in that case: “ If, then, the state would not be bound for the damage done to the plaintiff’s mill, had she been the immediate cause of it, how is the defendant bound ? The company acted by her authority, as well as for the public benefit;” and the cases of a public ferry being destroyed by a canal, and a valuable spring being drowned out, and no recovery had therefor, are mentioned in the case. The state not being liable, would a company, its vendee, be liable ? The answer to this is to be found in the act transferring the canal to individuals. If no provision is made for consequential damages in this act, the plaintiff below was not entitled to recover. It is said in Young v. The New York and Erie Railroad Co., 9 Casey 181, in the cases cited, the doctrine has been distinctly held, and it is the settled law of the land, if anything can be settled, that unless the act of incorporation provides for it, consequential damages are not recoverable from a railroad or other improvement company, in constructing or maintaining their works.” The cases referred to in the opinion are: Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; McKinney v. Monongahela Nav. Co., 2 Harris 65; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; The Trenton Railroad, 6 Whart. 45; Rundle v. Delaware and Raritan Canal Co., 14 How. 80. The act authorizing the sale of the canals, provides in the 7th section, “ that any and all claims for damages, or other demands against the Commonwealth by individuals and companies, in relation to the location, construction, repair, management or use of any canal, shall be paid by the purchaser.” It is clear that the legislature did not intend that this section should cover cases of consequential damages, because it expressly uses the words claims or demands against the Commonwealth.” These claims or demands were a burthen on the canals, and the vendee was to take them subject to such burthens. The section could not relate to the future, as the Commonwealth ceased to be the owner, and therefore no demands could arise against it by reason of the operation of the canals. The 5th section provides that canals shall remain public highways, and the purchasers shall keep them in as good repair and operating condition as the canal commissioners had done, and subject to any existing contracts in regard to the same. By this act the canals were sold to the Sunbury and Erie Bailroad Company, and subsequently, that company sold to the defendants below. Their powers and liabilities are made the same as those of the railroad company, their vendors. The same Act of Assembly incorporates the defendants, and we look in vain through it for any provision that either was liable for damages solely of a consequential nature, in repairing or maintaining the canal. As already said, such damages result alone from legislative authority, and if that do not exist, there is no remedy for them, in cases of public improvements authorized by the state. If a suit as for a nuisance, as this is, were allowable, the consequence would be, that the canal would have to be abated to its original height, otherwise the plaintiff might institute suit every day, while the effect would continue and, others doing the same thing, the canal might be destroyed; at least it might entirely prevent what the law requires the company to do, namely: “ to keep up the navigation of the canal as a public highway, in as good repair and operating condition as the canal commissioners had done.” For negligence or wantonness the company may be made answerable, in an action on the Case, but may not for the result of repairs bond, fide made, with a view to maintain the efficiency of the canal. In deciding the opposite of this, the court below erred. There was no pretence that the company negligently, or wilfully, with intent to injure any person, raised the water in their canal. The ruling on the points covers the main question of the case, and is to be found in the answer of the court embraced in the 3d, 4th, 5th and 6th assignments of errors, whereon the ground of recovery is made to rest alone upon a fact, viz., whether the canal was raised higher than it was in 1865. We need not notice any other assignments of error in the case; but for this ruling,

The judgment is reversed.


author: by Agnew, J.

text:
    Marvine versus Drexel’s Executors.
    1. Marvine holding a contract for the purchase of unimproved city ground the conveyance was made to Drexel at the price Marvine was to pay, he agreeing to sell and pay Marvine one-fourth, of the profits, Marvine to pay one-fourth of the interest on the purchase-money and of taxes, &e., Drexel, “ as owner, to have full power to sell at such times and for such prices as he may deem proper.” Held, that Marvine had such an interest in the sales, <fcc., as would prevent Drexel from exercising his power in a prejudicial manner.
    2. Drexel's power of sale was not arbitrary, but limited by a sound discretion, to be exercised for the benefit of Marvine as well as himself.
    3. Drexel died having made his will, ordering his executors to sell his real estate “ whenever they think proper.” As to the Marvine land, the power of sale did not pass to them in an absolute form, but to he exercised according to the spirit and intent of the agreement.

      Í The executors and Marvine not agreeing as to the mode of selling, equity would direct a sale in such manner as to serve the joint interests of the parties.
    5. In this ease the court appointed a receiver to make the sale.
    February 13th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Court at Nisi Prius: In Equity: No. 9, of July Term 1866.
    This was a bill in equity by Edward E. Marvine against Catharine Drexel and others, executors, &c., of Francis M. Drexel, deceased, and Francis A. Drexel, heir at law of said deceased.
    The matters in controversy originated in a contract between the plaintiff and Francis M. Drexel under the seals of the parties, dated May 18th 1861. It recited that on the 13th of May 1861, Page and others had conveyed to Drexel a tract of land at the corner of the Buck road and Broad street, containing about 131-acres, and that James Bond on the same day had conveyed to Drexel two lots adjoining; that the purchase-money of the real estate including $5000, paid by Drexel for expenses, &c., amounted to $112,000; that Drexel had laid out the land in building lots for the purpose of selling the same.
    “And whereas, in consideration that the said Francis M. Drexel has been enabled to effect the purchase of said property at a low price through and by means of the efforts of said Edward E. Marvine, the said Francis M. Drexel has agreed to pay to the said Edward E. Marvine, from time to time, a portion of the net profits that may hereafter be realized, he, the said Edward E. Marvine, agreeing to pay or allow to said Francis M. Drexel, a portion of the yearly interest on said purchase-money, and a portion of all municipal charges and yearly taxes charged or hereafter chargeable on said property.
    “Now this agreement witnesseth, that the said Francis M. Drexel, in consideration as aforesaid, &c., promises and agrees to pay to said Edward E. Marvine, one-fourth of the net profits (if any) that may be realized or made from time to time by a sale or sales of the lots. And the said Edward E. Marvine, in consideration, as aforesaid, promises and agrees to pay or allow to said Francis M. Drexel one-fourth of the lawful interest on said purchase-money, one-fourth of said yearly taxes that are now charged, and that may be hereafter chargeable on said premises, and one-fourth of all the municipal charges that are now or that may hereafter be charged against the same. The said Francis M. Drexel as owner, shall have full power and right to sell all or any part or parts of said property at such time or times and for such price or prices as he may deem proper.”
    Mr. Drexel died in June 1863. By his will proved June 11th, after giving to his wife his dwelling-house for life, and directing that she should have her dower in all his real estate, he devised the residue equally among his six children. And he provided as follows: “ I authorize and empower my executors, for the purpose of dividing my real estate among the devisees and legatees, or for any other purpose, to sell and dispose of all or any part or parts of my real estate either at public or private sale, whenever they think proper, except the dwelling-house * * * devised to my wife, and for such price or prices as my executors may deem proper, and also to sell or convey the same in fee simple or other estate, reserving a yearly ground-rent or ground-rents in the usual manner, payable half-yearly or otherwise, with the usual covenants or otherwise, and to make, execute and deliver good and sufficient deeds for the same to the purchaser or purchasers in fee simple or other less estate.”
    The executors on or about the 1st of April 1866, advertised the whole of the vacant lots on Broad street for public sale on the 8th of May 1866, in eleven blocks. The plaintiff remonstrated without effect; and finally filed his bill for an injunction, which was granted.
    The bill prayed:
    1. That the court may declare what are the rights, interest and duties of the parties, with respect to the said lots of ground.

      2. That the court shall require that the lots shall be sold in manner most conformable to the rights and interests of the parties, and to the greatest advantage, and free from all doubts as to title. And if necessary to appoint a trustee to sell, or otherwise to execute the trust; and if deemed necessary to appoint a receiver to sell, receive purchase-money and file accounts thereof.
    3. That the party to execute the trust shall be required to perform and discharge his duties under direction of the court; to sell, freed and discharged from the lien of the decedent’s debts and all other encumbrances; and after account taken to divide the profits between the parties according to their respective rights.

      4. Eor an injunction against any sale in any manner otherwise than may be decreed by the court, and lastly for general relief.
    The case was referred to C. H. T. Collis, Esquire, as examiner; and on the coming in of his report, he and Edward Olmsted, Esquire, were appointed masters.
    The masters reported:— * * *
    “ Soon after the execution of the contract, Mr. Drexel commenced to make arrangements to dispose of the property. He had plans made, dividing it into building lots. As the mode of sale which the complainant alleges was contemplated by the agreement, and which he asks to be allowed to prove was the one intended by the parties, is peculiar to this city, it is proper it should be explained. An owner of vacant land arranges with his intended purchaser, the size and character of the buildings that the neighborhood will justify, and the dimensions of the lots suitable for them. The lot has a price put upon it and the cost of the proposed buildings ascertained. The owner then agrees to advance one-half, or more or less, as the case may be, of the respective cost, and the purchaser mortgages to him the lot for its price and the proportion of the cost of building which has been agreed upon. The purchaser, who in. most cases is a builder, agrees to furnish the balance of the cost of the buildings. This is the mode in which owners of large lots in this city realize their value.”
    After stating some of the evidence, the report proceeded: — * * *
    “ In fine, the evidence shows that the mode of selling by making advances was a favorite one with Mr. Drexel, as well because a better price could be obtained, as that it gave him opportunities to invest his money in mortgages and ground-rents, which he considered among the safest of investments. No doubt it was his intention to dispose of this property by making advances, and this we report to be a fact fully established by the evidence, and if he had lived he would doubtless have covered it with buildings paid for with his money.
    “ Whether he bound himself to sell in this manner is another question, which will be considered hereafter.” * * *
    “ The complainant produced witnesses to show that it was intended by the. parties to the agreement of May 18th 1861, that, the sales there mentioned should be sales of lots, with advances of the sort mentioned. This testimony was received by the examiner under exceptions from the counsel of the defendants, that testimony was not admissible to vary the terms of the written contract. The masters decided to receive evidence to show that when the parties by the terms of the contract provided for sales, they meant sales by advances.” * * *

      After stating and discussing the evidence on this point, the masters said:—
    * * * “ The evidence fails to satisfy the masters that anything was omitted from the agreement that the parties intended to place there. No doubt, as has been already stated, Mr. Drexel meant to cover this property with buildings. But the evidence has not convinced us that he meant to bind himself to do this.” * * *
    They further decided, — * * *
    “ That Mr. Drexel’s executors would not be bound to carry out a contract, to make advances on the sale of the property in question, unless the contract so provided, or Mr. Drexel had directed by his will that it should be done. Neither the one nor the other exists.”
    They further said:—
    * * * “ Mr. Marvine’s one-fourth interest in the net profits from the sales of the lot was not a mere gift to him by Mr. Drexel. He paid a consideration for it. The agreement being under seal, imports that. The evidence shows that the amount of the profits he was to receive was the subject of negotiation with Drexel. People do not negotiate about gifts. The agreement itself recites that in consequence of the efforts of Marvine, Drexel has been able to purchase the property at a low price. But his interest in the proceeds of the property to the extent of one-fourth of the net profits, is not denied. The controversy between the parties is only as to the mode of making profitable sales.
    “ Mr. Drexel’s executors insist that they may sell as they deem most advantageous for the estate they represent; Mr. Marvine, that they can only sell as by his interpretation of the agreement Drexel covenanted to sell.
    “ The masters do not agree with either of these views.

      “ They are of opinion that Mr. Marvine is entitled to require that the executors shall sell to the best advantage, if that can reasonably be ascertained, but that the executors are not obliged to sell and make advances; and further, that as Mr. Drexel’s estate is paying interest on the purchase-money, and for taxes and the like, that Mr. Marvine cannot insist that the time for realizing shall be postponed till the highest anticipated price can be realized.
    The mode of sale attempted by the executors is shown by the evidence to have been a ruinous one, and the masters report that such sale should not be allowed.”
    The masters recommend that it be decreed that the executors of Mr. Drexel expose the property at public sale in the following manner, namely, in lots as described in the plan set forth in the testimony, and called plan No. 1.
    1. That the corner lots be sold separately, the purchaser to pay one-third cash, and the balance to be secured by bond and mortgage on the premises, the mortgages to he payable in five years from their date.
    2. That the lots next the corners be then exposed for sale in like manner and on the like terms, the purchaser of the first lot to be allowed to take at the same price any number not exceeding ten, and every subsequent purchaser to- have the like privilege.
    3. That the parties, complainants and defendants, have permission to purchase as if they were strangers.
    4. That after the whole of the lots shall be sold, if the cash proceeds and the mortgages of other than the parties to this suit will suffice, the same shall be paid and delivered to the defendants in payment of the purchase-money and interest, taxes and other expenses properly chargeable against the property paid by Mr. Drexel or his executors, or for which they or the property may be liable.
    5. If the parties purchase, then the property purchased by the defendants shall, to the extent of the debt so owing by the said property as aforesaid, be held and taken by them as payment thereof, and the balance be divided, three-fourths to the executors of Mr. Drexel, in trust for the purposes of his will, and the balance to Mr. Marvine.
    6. That the parties be decreed to convey to each other or to other purchasers, as may be required to carry out the purposes herein indicated.
    7. That before said sale the defendants furnish to Mr. Marvine an account showing the sum properly chargeable against the property.
    8. That the sales are not to be conclusive until approved by the court, and either party may except to the confirmation thereof.
    9. That such sales shall not take place until sixty days after public notice, and that no sale shall take place between June 1st and October 1st.
    10. That after the whole of the lots shall have been sold, and the cash proceeds applied to the repayment of the purchase-money and interest, taxes and other expenses, properly chargeable against the property paid by Mr. Drexel or his executors, or for which they or the property may be liable, the defendants shall take and receive payment of the balance, if any, in mortgages of other than parties to this suit, at par, and when the said indebtedness shall have been thus extinguished, the balance of said mortgages shall be divided three-fourths to defendants and one-fourth to the. plaintiff.
    Exceptions were filed to the report by both parties; it was confirmed at Nisi Prius.
    Roth parties appealed to the Supreme Court, and in a number of specifications, each assigned the decree of confirmation for error.
    February 27th 1871,

      J. S. Price and B. K. Price (with whom was W. B. Seward), for Marvine.

      S. Pickson and Gr. Sergeant (with whom was J. 0. Bullitt), for Drexel’s executors. '
   The opinion of the court was delivered,

by Agnew, J.

The agreement of May 18th 1861 between Mr. Drexel and Mr. Marvine was intended to state the relations between them as to the property described in it, and their final arrangements for its disposition. It shows by its terms that Drexel became the owner thereof, with a full power of sale upon his own terms, and consequently without any trust in the title for Marvine. But though Drexel held the property exempt from any trust in the title for Marvine, the agreement contemplated conversion by sale for their joint benefit. Marvine was to have one-fourth of the net profits, and was bound to pay directly or indirectly by account one-fourth of the interest of the purchase-money ($112,000), and one-fourth of the taxes and municipal charges against the premises. The effect of this arrangement was to give to Marvine such an interest in the sales and conversion of the property as would prevent Drexel from exercising his discretionary power of sale in an unfair or prejudicial manner. For though Drexel was the owner with a power of sale on his own terms, and had paid the purchase-money, it is evident he had obtained the title at a low price by Marvine’s instrumentality, and was to be protected by him as to the one-fourth of the property by payment of the interest and taxes and charges on that one-fourth. It is also clear that Marvine took the right to the one-fourth of the net profits in compensation for his relinquishment of title, and ,his covenant to pay Drexel the one-fourth of the interest, taxes and charges. Hence in equity Drexel’s power of sale was not arbitrary, but was limited by a sound discretion to be exercised for the benefit of Marvine as well as of himself. It therefore did not pass by his will to his executors in an absolute form, but as a power to be exercised according to the spirit and intent of the agreement. The argument is unsound which insists on the possession of an absolute power of sale in the executors, in order to perform their legal duties as executors, for that unqualified power of disposition did not reside in Drexel in his lifetime— it was not despotic in him. But while this is the true effect of the agreement, we discover no binding obligation that Drexel should make advances to build up the property as the contract mode of making the sales. Doubtless he so intended to do, and Marvine believed he would, hut we find no sufficient evidence of a contract to do it. Such an understanding might have been fairly the subject of an independent parol agreement not contradictory of the writing, and therefore the masters properly received the evidence to establish it; yet we cannot say that the evidence plainly did prove it, while the entire omission from the writing of a matter so vital to Marvine’s interests is strongly persuasive evidence that it was left to the determination of Drexel himself. The expectation, well founded it is probable, that he would sell the property in this mode, which was disappointed only by the death of Drexel, constituted no contract, and had the executors made advances to build up the property it would have been at their own peril. But while this left the executors to make the sale otherwise, they could not make it to the prejudice of Marvine’s right if a better mode than the one they proposed was reasonably practicable. Hence in determining to sell regardless of his interests and wishes in a manner ruinous, as the masters characterize it, of these interests they were properly enjoined; and equity having taken possession of the ease, will direct the sale to be made in such a manner as to serve the joint interests of the parties. See the following authorities: McGowin v. Remington, 2 Jones 56-63; Findlay v. Keim, 12 P. F. Smith 112; Bank v. Biddle, 2 Pars. Eq. Cas. 53; Kelsey v. Hobby, 16 Pet. 269; C. & A. Railroad Co. v. City of Erie, 1 Grant 212; 3 Casey 382; Meyers v. Hill, 10 Wright 12. This can be best done under the order of the court and through the instrumentality of its officer. The executors looking to the special interests of the estate they are to administer, and a speedy settlement of its affairs, occupy a position to some extent adverse to the interests of Marvine, while a master or receiver would hold a middle position. We have therefore made the following decree, to wit:—

And now, this-27th day of February, A. D. 1871, it is ordered and decreed by this court that all and singular the property, estates and interests mentioned and referred to in the agreement between Francis M. Drexel and Edward E. Marvine, dated May 18th 1861, shall be sold by a receiver, to be agreed upon and chosen by the parties to this bill, and approved by the court, or if they cannot agree, to be appointed by the court.
That the said receiver, after due and sufficient public notice, shall from time to time sell and dispose of at public or private sales all the said premises in lots, divisions or allotments, in such quantities, parts or numbers as shall appear to be most conducive to the interests of all parties, and will bring the best prices for the same. That such sales shall be made from time to time upon mortgages, ground-rents or for cash or partly in any or all said modes; all such sales being made subject to the approval of the court, or a judge thereof sitting at Nisi Prius, either party being at liberty to except to the confirmation thereof.
That the parties, plaintiff and defendants, have leave to purchase as if they were strangers, and to obtain a credit for the purchase-money to a sum not exceeding the amount such party shall be entitled to receive out of the proceeds of said sales.
That before the receiver shall proceed to make such sales, the defendants shall furnish to him a full and true statement and account of the sums chargeable against said property on part of the said Francis M. Drexel, deceased.
That the said defendants, the survivors or survivor of them, shall from time to time, and as often as they shall be required by the receiver, convey by a good and sufficient deed to the purchasers thereof the property sold to them respectively, in pursuance of the power contained in the will of the said Francis M. Drexel, and the said receiver shall also join in the said conveyance, or convey by a separate deed in pursuance of this decree.
That payment of the proceeds of said sales shall be made by the receiver, first to the purchase-money, interest, taxes and municipal charges against the said property, and the expenses attending the said sales and settlement of the same, and next by distribution of the residue to and among the parties according to their several and respective proportions thereof, of all which just and full accounts shall be rendered by the said receiver, subject to the confirmation of the court or a judge thereof at Nisi Prius.
The receiver shall give a bond with sufficient sureties to be approved of by the court or a judge at Nisi Prius, in the sum of $20,000 for the faithful discharge of his duties, and accounting for and paying over all moneys which shall come into his hands from the said sales.
The costs of this suit and all future expenses shall be paid out of the funds in the hands of the receiver. This decree shall be subject to such modifications as the court in banc shall from time to time order and approve.