text:
    Delbert’s Appeal,
    No. 1.
    1. Where a trustee has active duties to perform, and by the terms of a will it is apparent that the main intent of the testator was to create an active trust, for a lawful purpose, this intent will not be defeated because he also included therein a void trust for the separate use of his daughters who were unmarried.
    2. Testator devised an eighth of his estate to each of his daughters for their lives, and after their decease to all their children then living, and the issue of such of them as may then be dead, their heirs and assigns for ever, in equal parts, such issue taking and dividing among themselves such share only as their deceased parents would have taken if living; provided that the portions of his estate thus devised should remain during the lives of the daughters, respectively, in the care and management of his executors, in trust, to receive and pay over the income to his said daughters for their sole and separate use, free from any liability for the debts of husbands: Held, that the gifts to the daughters were restricted to their-lives, with a contingent remainder In fee to the children of each, living at the time of her death, and to the issue of such as may be then deceased, leaving such issue.
    3. Held, further, that it was the intent of the testator to create a trust to preserve the corpus of the estate for those in remainder, and this intent was not to be defeated by the provisions for the separate use of the daughters, which was but an incident and not the main purpose of the trust.
    February 12th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1875, No. 115.
    This was the appeal of Simon Delbert and others, from the decree of the court revoking the appointment of the Fidelity Insurance, Trust and Safe Deposit Company, as trustee under the will of Frederick Gaul, Sr., deceased.
    Frederick Gaul, Sr., died in June 1831, leaving a will, dated August 1st 1825, and seven children, Frederick, William, Jacob, Martin and Catharine Gaul, Mary, afterwards Mary Smith, Elizabeth, afterwards Elizabeth Stiles, and a widow, who died in 1836. By his will he gave and devised an annuity of $2000 to his wife out of his income, and of the balance of said income, one-eiglith to each of his children (Joseph being then alive,, but dying before testator). The share of his son Jacob he gave to his executors, to apply the same, in their discretion, to the support of Jacob for life, not to be liable for his debts, and at his decease, then to his children, if any. The shares of his daughters he also gave to his executors, to be paid to each of them during her life, and at her decease, to her children, if any.
    After the death of his wife he gave one-eighth of his estate to each of his said children, the shares of Jacob and his daughters to be held by his executors upon the same trusts and in the same way as the income; the terms of the will being as follows: “Another eighth part thereof to my said daughter Mary, for and during all the term of her natural life, and after her decease to all her children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever, in equal parts, such issue taking, and among themselves equally dividing, such part and share only as their deceased parents would have taken if living; another eighth part thereof to my said son Jacob, for and during all the term of his natural life, and after his decease, then to all his children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever, in equal parts, such issue taking, and among themselves equally dividing, such part and share only as their deceased parent would have taken if living.”
    An eighth part was given to Elizabeth and Catharine in like terms as those applied to Mary. The will then proceeded: “Provided always, and it is my mind and will that the parts and portions of my estate hereinbefore devised to and for the benefit of my said daughters, respectively, shall be and remain in the care and management of my said executors, and the survivor of them, for and during the term of their natural lives, respectively, to receive-the rents and income of the real estate, and to place out and continue at interest the personal estate, or to invest the same in some of the personal stocks or securities producing an interest or dividends, and to receive the interest and dividends arising therefrom Avhen and as the same shall become due, and from time to time, Avhen and as the same shall be received, to pay over the same to my said daughters, respectively, to Avhom the same may belong, into their OAvn hands, for their sole and separate use, without being in any Avise subject or liable to the debts, control or interference of their husbands, respectively, and their receipt alone, Avhether covert or sole, shall be good and available in laAV. And, provided also, and it is my mind and will that the part and share of my estate hereinbefore devised for the benefit of my said son Jacob, shall be and remain in the care and management of my said executors, as his trustees, the interest and income of which for and during all the term of his natural life, I direct to be paid to him or to be applied by them at their option, for his support and maintenance, so that the same shall not be liable to his disposal, or subject to the payment of his debts.”
    William Gaul, Frederick Gaul, Jr., and the testator’s wife Clarissa and the survivors or survivor of them, Avere appointed the executors and trustees under this will. The widoAv, as observed above, died in 1836. William Gaul, one of the executors and trustees, died in 1868, leaving aAvill dated February 2d 1867, wherein he appointed Sarah Gaul, Simon Delbert, George IT. Oberteuffer and Peter L. Snyder executors and trustees. F. Gaul, Jr., the surviving trustee, died in April 1871, leaving a will appointing his daughter, Mary A. Gaul, executrix. Jacob Gaul died March 9th 1871, intestate and unmarried; and Catharine Gaul, about seventy-six years of age, was living and unmarried when this proceeding commenced.
    In 1871 Simon Delbert and George IT. Oberteuffer, surviving executors of William Gaul, deceased, and the personal representatives of said William Gaul, filed a petition which, after a recital of the above facts, set forth, that the shares of said Jacob and Catharine, Avhich were left in trust by the will of Frederick Gaul, Sr., for the lives of each, to William Gaul and Frederick Gaul, have noAY increased to an amount exceeding one hundred and seventy thousand dollars; that after-the year 1852, Henry Stiles acted as trustee, in conjunction with Frederick Gaul, but at his death, in 1863, James S. Huber assumed the duties of trustee, and has acted up to the present time; that there is not hoav in existence any trustee appointed by the will of Frederick Gaul, Sr.; that James S. Huber, acting trustee, has never been appointed by deed, Avill or by this court, and has never given any security, although he holds in his possession and control all the securities of the estate of Jacob and Catharine Gaul, to the amount above named, and in which your petitioners are interested as heirs and devisees.
    The petitioners, therefore, pray that the court will appoint the Fidelity Insurance, Trust and Safe Deposit Company as trustee, in lieu and stead of said trustees, deceased, under the will.
    The court granted the petition, as prayed for, on the 20th of May 1871, and on the 27th of the same month Catharine Gaul, by her next friend Mary Smith, Mary Smith in her own right, and others, who comprised all those interested in the estate except the representatives of William Gaul, deceased, petitioned the court to revoke the appointment of the “Fidelity company,” because, 1, the trusts created by the will of Frederick Gaul, Sr., were executed, and, 2, that consequently the court had no jurisdiction.
    At the hearing, which was upon bill and answer, Allison, P. J., delivered the following opinion:—
    “ Petition 6, presented in the William Gaul interest, asked for the appointment of the Fidelity Trust' Company as trustee under the will of Frederick Gaul, Sr., in place of Frederick and William, deceased, which was granted.
    “ And petition No. 7 prays that this appointment be vacated. This application is in behalf of all but the representatives of William Gaul, and rests upon two grounds:—
    “First, a want of jurisdiction; there being, as contended, no vacancy, because no subsisting trust. Jacob was dead, and the trust as to him died with him. Catharine’s trust is a feme covert trust, and as she is unmarried, old and insane, the trust .as to her is executed. Mary Smith’s trust became executed on her becoming a widow; she has children, and William Gaul’s executors, therefore, have no interest. The executors of Frederick Gaul, surviving trustee, hold the legal title to the chattel property of the estate, and can maintain possession until required to account; and as these trusts are executed, and not executory trusts, equity has no jurisdiction : Baker v. Biddle, 1 Bald. 394; Ex parte Conrad, 2 Ash. 527. This last case is rested mainly on the authority of Carlisle’s Appeal, 9 Watts 331, in which the doctrine is clearly stated, that under our Acts of Assembly relating to trusts and trustees, only where the trusts are active, requiring personal attention or active duty, or the exercise of a power by a trustee, will trustees be appointed.
    “ This renders it immaterial whether the appointment was improvidently made or not. Holding that the trusts were dry trusts, the Fidelity company ought not to have been appointed, and the appointment is therefore revoked.”
    From this decree this appeal was taken.

      Charles 8. Pancoast, Gf. W. Biddle and W. W. Juvenal, for appellants.
    — The gifts to the daughters are expressly restricted to their natural lives, with a contingent remainder in fee to the children of each, living at the time of her death, and the issue of such as may then be deceased, leaving such issue. These remainders come under the fourth class of Mr. Eearne; “ where a remainder is limited to a person not ascertained, or not in being at the time when such limitation is made.” The person or persons are not ascertained, until the death of the daughters, who will fill the description of “ children then living,” &c.: Huber’s Appeal, 30 P. F. Smith 348; Robins v. Quinliven, 29 Id. 333; Rupp v. Eberly, Id. 141.
    The testator imposed active duties upon the trustees, to continue during the whole time of the life-estate he had first given; and whilst he added a direction that the income shall not be liable for the debts of the husbands of these life-tenants, there is, from the gift of this limited interest and the gift over to others afterwards, apparent on the face of the will, a sound reason for holding that this trust was not a trust for mere separate use, but was really intended to be what he expressed it should be, for the care and management of his estate during the lives of the first takers. Even where the trust is not active the legal estate will remain in the trustees so long as it is necessary to preserve the estate itself, as to protect a married woman, or to preserve contingent remainders: Dodson v. Ball, 10 P. F. Smith 494; Barnett’s Appeal, 10 Wright 399 ; Pullen v. Rianhard, 1 Whart. 514.

      R. L. Ashhurst and Chapman Biddle, for appellees.
    — The court had no jurisdiction, as the estates of which the Eidelity company were appointed the trustees were not devised or bequeathed under the will, upon any active trusts, or for 'any special lawful purpose requiring the management of a trustee; and the beneficiaries had, therefore, legal estates at the time of the appointment.
    The trusts as to Catharine and Mary were feme covert trusts ; and as Catharine was unmarried and was not contemplating marriage at the time, and as Mary was then discovert, the trusts, if ever effective, were certainly then invalid.
    That the intention of the testator in creating the trusts of his daughters’ shares was to protect them against coverture, clearly appears. What else is there to keep the trust alive ? There are no duties to be performed by the trustees but such as are purely ministerial ; they have no duty of conveying of dividing the property on the death of the daughters, nor is there any purpose expressed except to preserve the property during coverture, and this purpose is clearly disclosed in the use of the words “sole and separate” by the testator: Ogden’s Appeal, 20 P. F. Smith 507; Yarnall’s Appeal, Id. 339 ; Dodson v. Ball, 10 Id. 494.
    If coverture is the purpose of a trust, active duties of management imposed on the trustees are looked upon as merely incidental, and although a trust might otherwise be active, yet if the purpose appear to be to guard against future coverture — a purpose altogether unlawful — the active duties to be performed by the trustees will not save the trust from falling, or keep it alive after an existing coverture has ceased. See cases above cited.
    There was no necessity for the appointment of a trustee for the mere purpose of transmitting the legal title to contingent remaindermen, because a trustee already existed in Mary Ann Gaul, heir-at-law of Frederick Gaul, Jr., the surviving trustee: Jenks v. Backhouse, 1 Binn. 91; Carlisle’s Appeal, 9 Watts 331; Baird’s Appeal, 3 W. & S. 459.
   Mr. Justice Paxson

delivered the opinion of the court, March 28th 1877.

The only error assigned upon this record is to the decree of the court below, revoking the appointment of the Fidelity Insurance, Trust and Safe Deposit Company as trustees under the will of Frederick Gaul, Sr., deceased, in place of William and Frederick Gaul, deceased, trustees. Said appointment was revoked upon the ground that the trusts were mere dry trusts requiring no personal attention, nor the performance of any active duty on the part of the trustee.

We think it is very clear that under the will of Frederick Gaul, senior, deceased, the gifts to the daughters are expressly restricted to their natural lives, with a contingent remainder in fee to the children of each living at the time of her death, and to the issue of such as may then be deceased, leaving such issue. Here is certainly a duty on the part of the trustee to preserve the corpus of the estate for those entitled in remainder. There were also active duties to perform. By the terms of the will the property is directed to “ remain in the care and management of the executors, and the survivor of them, for and during the natural lives of the daughters, respectively, to receive the rents and to continue at interest and invest the personal estate in some of the personal stocks or securities, producing an interest or dividend,' and to receive the interest and dividend, and from time to time to pay over the same to the daughters to whom the same may belong, into their own hands, for thqir sole and separate use, without being subject or liable to the debts or their husbands,” &c. The learned judge of the Orphans’ Court evidently regarded this clause of the will as creating a separate use trust. The concluding sentence of the paragraph cited evidently does create such a trust. But an examination of the entire will shows that the separate use was not the main or controlling feature of the trust. It was but an incident. Had it been a separate use trust and nothing more, it would undoubtedly fall under the authority of Dodson v. Ball, 10 P. F. Smith 494; Yarnall’s Appeal, 20 Id. 339; Ogden’s Appeal, Id. 507. But where an active trust is created, and the intent appears to be that it shall continue for a life or other limited period, without regard to coverture, then the trust is sustained: Bacon’s Appeal, 7 P. F. Smith 504; Earp’s Appeal, 25 Id. 125; Ashhurst’s Appeal, 27 P. F. Smith 464; Ash’s Appeal, 30 Id. 497. We think the trust in this estate falls ivithin the latter class, and that a trustee is necessary to carry out the purposes contemplated by the testator. It will be the duty of the Orphans’ Court to make such an appointment.

The decree is reversed, and a procedendo awarded; the costs of this appeal to be paid by the appellees.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Delbert’s Appeal,
    No. 2.
    1. The Orphans’ Court has no jurisdiction to cite to an account one who as the bailee or agent of trustees obtained possession of property of the trust estate, and who after the death of the trustees remained in possession thereof without lawful authority.
    2. It seems that the proper remedy would be for those entitled to the lawful possession to bring an action at law against the trustee de son tort, or by bill in equity, when an account is necessary.
    February 12th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1875, No. 114.
    This was an appeal by Simon Delbert and others, executors and trustees, from the decree of the court refusing a citation to James S. Huber to account.
    . This proceeding commenced by a petition filed by the same parties as in the preceding case, and, as therein, setting forth the provisions of the will of Frederick Gaul, Sr., deceased. It then averred that the account of the trust estate was kept by Frederick Gaul, Henry Stiles and James S. Huber, and in 1852-1854 a settlement of the trust accounts was made, and all the securities of said trust estates and titles of the real estate were handed over to Henry Stiles, with the consent of all parties in interest; that in 1863 Henry Stiles died in possession of all the securities and real estate, some of which were believed to be invested in his individual name, but held for the trust: that by the will of Henry Stiles, his sons and sons-in-law were appointed executors and trustees, all of whom, by agreement or consent, named James S. Huber to assume and continue the management of the trust, which care and management James S. Huber did assume and still continues to exercise; that a short time before assuming the trust, Huber applied to the Orphans’ Court to be appointed trustee; that security was required, which he refused to give, and he continued to act as trustee de son tort; that Edwin M. Lewis, trustee for Mary S. Lewis and Martin Gaul, children of Martin Gaul, deceased, in 1869 applied to petitioners to act jointly with him in procuring an account from the said James S. Huber, compelling the production of the securities of said trusts, and the giving of security by Huber ; and that the said Lewis did procure from said Huber a list of said securities, many of which he reported to petitioners were in the individual name of said Huber, but held for the trusts, and did procure the said Huber to deposit said securities, which were in two tin boxes, in the Farmers’ and Mechanics’ Bank, the key of the boxes, however, remaining in the possession of the said Huber; that the said list of securities showed them to amount to over $170,000; that William Gaul died in April 1868 (whereby Frederick Gaul, Jr., became the surviving trustee of said will of Frederick Gaul, Sr.), and by will dated February 2d 1867, devised his estate'to said petitioners, in trust, as therein mentioned, and also appointed them his executors; that the said Huber claimed that the estate of William Gaul was liable to him as acting trustee for a large amount due said trust; that the said Huber had never settled an account of said trusts; that Jacob Gaul died March 9th 1871, intestate and unmarried, and that Catharine Gaul was unmarried, and seventy-six years of age; that the said petitioners represent the interest of the said William Gaul, deceased, in the trust estates of said Jacob and Catharine Gaul, there being no devise over of the fee, in default of children, of these devisees.
    The petitioners prayed that said James S. Huber with Frederick Gaul, Jr., be compelled by citation to file their accounts of said trusts ; that Lewis be compelled to furnish a list of said securities, and that they enter proper security.
    Frederick Gaul, Jr.,' the surviving trustee, died shortly after the petition was filed.
    To this petition the demurrer and answer of J. S. Huber were filed, dumurring for that the petitioners had not shown any title to the relief or discovery prayed for; that they sought relief from respondents on distinct grounds, and that there were no sufficient reasons for joining them in the proceedings; that no ground was shown to give the Orphans’ Court jurisdiction of the said J. S. Huber, as he was not shown to be a trustee for any one in whose estate the petitioners had any interest, nor was he alleged to have in his control or possession any property derived directly from any decedent or indirectly through the action of the court; that the relief sought was mainly discovery, for which purpose the Orphans’ Court had no jurisdiction ; that for such purpose petitioners must proceed in a court of equity ; that no right nor equity was shown in petitioners, and that the petition was multifarious in joining distinct averments, in many of which respondent was not interested.
    The answer denied that respondent was a trustee, but admitted the averments that respondent had taken charge of the trust property, and had many of its securities in his custody and control.
    The demurrer of Lewis was chiefly on the same grounds. This appeal, however, is not to the decree in his case. t The hearing was had on bill, answer and demurrer, before Allison, P. J., who delivered the following opinion:—
    “ The petition prays that in the interest of William Gaul’s estate a citation may be granted requiring Frederick Gaul and James S. Huber, who married a granddaughter of Frederick Gaul, Sr., to account, alleging that they have property to a large amount in their hands belonging to the estate; and that Edwin M. Lewis, intermarried into the family of the testator, be also cited, to show what securities of the estate are under his control.
    “ Upon this petition we hold that the Orphans’ Court have not the power to order the discovery which is sought at the hands of Edwin M. Lewis: Shollenberger’s Appeal, 9 Harris 337; Snyder’s Appeal, 12 Casey 166. The jurisdiction of the Orphans’ Court is wholly statutory, and no such power is conferred upon the court: Brinker v. Brinker, 7 Barr 55; Williard’s Appeal, 15 P. F. Smith 265.
    “As to Huber, it appears that though appointed trustee by the court before the death of Frederick or William Gaul, who had misbehaved in the administration of the trust, he never took upon himself the duties of a trustee, but refused to qualify or to give the security.ordered by the court. He was agent of the trustees, and as such could not have been cited by parties in interest to account; nor do his relations to the estate appear to have changed after the death of the trustees, Frederick and William; nor after the death of Henry Stiles, his father-in-law, who was himself a son-in-law of Frederick Gaul, Sr., and who appears to have been associated in the management of the trust — first with Frederick Gaul, to the exclusion of William, the co-trustee of Frederick, under the will of their father, and after Frederick’s death to have had the sole management of the trust estate. He does not, however, appear to have been a duly constituted trustee at any time. If the principle be relied on that trusts are to be enforced against all persons who come into possession of trust property, with notice of the trust, the statutory right of the Orphans’ Court must also be shown before it can take jurisdiction of the person against whom a citation may be asked. It is true, the Act of March 29th 1832 does give to the Orphans’ Court jurisdiction where executors, administrators, guardians or trustees may be possessed of, or are in any manner accountable for, any’real or personal estate of a decedent; but this does not make subject to the jurisdiction of that court one who seems to have acted solely in the capacity of agent for a trustee, executor, &c. Mr. Huber does not seem to have stood at any time in any other relation to the trust property than as agent for the trust estate, or as custodian or care-taker of the property belonging to the trust. His appointment by the court after the death of Henry Stiles, and his refusal of that appointment upon the conditions imposed by the court, seem to settle this question against the prayer of the petitioners. He cannot, we think, be regarded as a trustee under the Act of March 29th 1832. Nor does he appear to have acted in such a manner that he can be considered even as a trustee de son tort. We refuse, therefore, the citation prayed for as to Huber.”
    The decree of the court ivas: “ The citations prayed for against James S. Huber and Edwin M. Lewis are refused (and the prayer of petition as to them is dismissed), without prejudice to the right of petitioners to apply to the Court of Common Pleas of Philadelphia county, or other court having jurisdiction, for such equitable relief against James S. Huber as they may deem themselves entitled to.”
    From this decree this appeal was taken.

      Charles S. Pancoast, G. W. Biddle and W. W. Juvenal, for appellants.
    — The Orphans’ Court had jurisdiction, and Huber was accountable thereto as a trustee: Act of March 22d 1832, Pamph. L. 190; Act of June 16th 1836; Brightly’s Purd. Dig. 1104, pl. 8; Wimmer’s Appeal, 1 Whart. 103; Lewis v. Lewis, 1 Harris 82; Rackham v. Siddall, 1 Macn. & G. 607; Life Asso. v. Siddal, 3 DeG., F. & J. 58. A person may become a trustee by construction by intermeddling with and assuming the management of property Avithout authority: Perry on Trusts, sects. 245, 265, 846; Lewin on Trusts, 6th ed., ch. 12, sect. 3, p. 215.
    The trust under the will is one which is within the exclusive jurisdiction of the Orphans’ Court, for it was given the executors ex virtióte officii and not nomination. Had Mr. Huber acquired this property as heir or executor of the last surviving trustee, there could, it is submitted, be no question of the jurisdiction of the court to compel him to account. That he has acquired it by direct transfer in the lifetime, instead of by transfer by will at the death, or by descent, cannot change his liability to account therefor to the court having jurisdiction over the subject-matter. There cannot be a distribution of this estate except by the Orphans’ Court, which has exclusive jurisdiction to make distribution, and the poAYef to make distribution involves the power to decide all questions necessarily connected therewith, and in the very first instance to compel the filing of the account, which will bring the estate before the court for distribution: Dundas’s Estate, 23 P. F. Smith 474; Mussleman’s Appeal, 15 Id. 480.

      R. L. Ashhurst and Chapman Biddle, for appellees.
    — That Huber, as bailee or depositary, is accountable, he has never denied, but the question is to whom he is accountable and in what forum. As the agent or bailee of the executors of Frederick Gaul, Sr., clearly he was accountable in their lifetime only to them; and upon the death of William, to Frederick, who survived. On what principle in Frederick’s lifetime could he be accountable to William’s executors? After the death of Frederick Gaul, Jr., Huber was accountable only to his heir-at-law, who succeeded to his rights and duties as executor: P. & R. Railroad Co. v. Lehigh Coal & Nav. Co., 12 Casey 204. Even as beneficiaries, in which behalf the claim is here made, resort must be had to the executor or trustee, and not to the mere custodian of the securities. As the agent employed by the trustee, Huber is only responsible to the trustee, his superior: Lockwood v. Abdy, 14 Sim. 441; Maw v. Pearson, 28 Beav. 199.
    Huber was not a trustee and could not be compelled to account in the Orphans’ Court, as that court has no jurisdiction except what is conferred upon it by statute: Snyder's Appeal, 12 Casey 166 ; Williard’s Appeal, 15 P. F. Smith 265.
   Mr. Justice Paxson

delivered the opinion of the court, May 7th 1877.

This was a proceeding to compel James S. Huber to settle an account as trustee in the Orphans’ Court. The case was heard below upon petition and answer. The application for a citation was resisted by Mr. Huber upon the ground that nothing had been shown “ to give the Orphans’ Court jurisdiction of the said James S. Huber, as he was not shown to be a trustee for any one in whose estate the petitioners had any interest, nor was he alleged to have in his control or possession any property derived directly from any decedent, or indirectly through the action of-the court.” While it was not alleged by the petitioners that Mr. Huber was technically a trustee, it was nevertheless contended that he was a de facto trustee; that after the death of Mr. Stiles, with the assent of the parties in interest, or at least a portion of them, he did assume and continue the management of the trust; that a short time before assuming it he applied to the Orphans’ Court to be appointed trustee; that he was so appointed by the said court, but refused to give the security required, and continued to act as trustee de son tort. It was urged on behalf of the petitioners that as trustee de son tort' he was liable to account in the Orphans’ Court. It is manifest that, if he cannot be required to account in that capacity he cannot be held liable at all in said court. It matters not whether we regard him as the agent of the former trustees, or as the bailee or agent of the cestuis que trustent, he is not a trustee within the meaning of our statutes defining the jurisdiction of the Orphans’ Court. The eighth paragraph of the 19th section of the Act of 16th of June 1836, Pamph. L. 792, provides that the jurisdiction of the Orphans’ Court shall embrace “all cases within their respective counties, wherein executors, administrators, guardians or trustees may be possessed of, or are in any way accountable for, any real or personal estate of a decedent. ’ ’ At first view this language might seem broad enough to cover this case. But the word “trustee,” following as it does the words “ executors, administrators and guardians,” was evidently not used in its broad sense, but relates solely to persons acting in a fiduciary capacity by virtue of a will, or of an appointment by the register or Orphans’ Court having jurisdiction of the estates of deceased persons. This was the view taken of it in Fretz’s Appeal, 4 W. & S. 433. The words “ trust” and “ trustee,” as was said by Mr. Justice Huston in that case, are often used vaguely, and in a sense not proper in legal proceedings. The books are full of cases in which parties have been held to be trustees for certain purposes, and in relation to certain property, yet as to whom the statutory jurisdiction of the Orphans’ Court could not attach. Thus in Fretz’s Appeal, supra, a person who had received from the testatrix all her papers, bonds and money, to divide among her heirs after her death, was held not liable to account therefor in the Orphans’ Court. The remedy was by an action at law in the name of the administrator. In that case there was a clear trust. But it was not created by will, nor did the trustee derive any authority from the register or the Orphans’ Court.

The mere possession of the propérty of a decedent, even under circumstances from which a trust will be implied, does not of itself give the Orphans’ Court jurisdiction over the person holding such property. The executor or administrator may recover the latter by appropriate legal proceedings, after which he may be called upon to settle an account therefor in the Orphans’ Court. It is said, however, that Mr. Huber may be held to account as a trustee de son tort. No authority was furnished for this position, nor have I been able to find any. On the contrary, it was said by Chief Justice Tilghman in Peebles’s Appeal, 15 S. & R. 39, that an executor de son tort cannot be cited to account before the register. While this remark is open to the criticism of being dictum, the absence of any attempt in this state to compel an executor de son tort to account in the Orphans’ Court is a persuasive argument that he is not so liable. There may be such a case, but I have not found it, nor has it been called to our attention. In the fifth chapter of Williams on Executors (vol. 1), the learned author defines exhaustively the liabilities of an executor de son tort. No mention is there made of any liability to account in this way. The remedy against such an executor is an action at law in the name of the lawful executor or administrator, or by bill in equity when an account is necessary. An executor de son tort owes no duty to the Orphans’ Court and is not liable to its jurisdiction. Were the rule otherwise it might lead to serious confusion. It would be an anomaly in Orphans’ Court proceedings to have accounts from one or more executors de son tort pending at the same time with the account of the lawful executor. There can be but one accounting in the same estate, though there may be several accounts by the executor or his -successors in the trust. What has been said in regard to an executor de son tort applies with equal force to a trustee de son tort.

It may be that Mr. Huber would have been liable to account in the Orphans! Court had he acted under the appointment of that court. In such case he could not have set up his failure to enter security as a reason why he should not account to the extent of his dealings with the estate under his appointment. But in his answer he flatly denies having so acted. The court below says he “ never took upon himself the duties of trustee, but refused to qualify,” &c. As before observed, this case was heard upon petition and answer. There was no finding of the fact that Mr. Huber ever did any act under and in pursuance of his appointment as trustee by the court below. We think, therefore, that the citation was properly refused.

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


author: Per Curiam.

text:
    Freck versus Blakiston. Freck’s Appeal.

    1. A., the partner of B., having charge of the firm’s business at a particular place, employed a firm of which he was a member to conduct it for a commission ; the accounts rendered to B. showed that this was the course of dealing, and no objection was made, and the effect was to reduce the expense of transacting the business : Held, that B. could not, after dissolution and settlement, demand an account of A.’s share of such commissions.
    2. A. sold coal of his firm to another firm of which ho was a member,'with notice to his partner, and at the full market value: Held, that he was not liable to account for profits received by him as partner in the purchasing firm, although said firm took the coal to fill contracts for delivery at a larger price than they paid for it.
    February 13th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the late Nisi Prius: Of January Térm 1868, No. 67.
    This ease was heard in the court below, on exceptions to a master’s report. The facts of the case were as follows:—
    Blakiston and Freck became partners in 1864, in mining and selling coal, as J. M. Freck & Co. Freck agreed to mine and ship the coal, and Blakiston agreed to sell the coal in Philadelphia. Blakiston was also a partner in the firm of Blakiston, Graeff & Co., coal merchants doing business in Philadelphia.
    In 1866 the firm of J. M. Freck & Co. was dissolved. Freck, who kept the books, sent down a balance-sheet, and by that, some months afterwards, in April 1867, a settlement was made, and the balance to the credit of Freck, deducting two uncollected items on the debit- side, was paid him by Blakiston.
    In 1868 Freck filed a bill for an account of the partnership. Blakiston pleaded an account stated. Freck then amended, claiming to. surcharge and falsify the account stated: 1. For an amount received by Blakiston for commissions received by him as a partner in the firm of Blakiston, Graeff & Co., on sales of the coal of J. M. Freck & Co. 2. For sales of coal to the firm of Blakiston, Graeff & Co. at less than market prices. 8. For profits on coal delivered to Bepplier, with whom Blakiston was a partner, to fill contracts with the government. 4. For profits on coal delivered to Wright under similar circumstances.
    The case was referred to a master, who reported, in substance, on the first point, that the arrangement- for conducting the business by Blakiston, Graeff & Co. for a commission, caused a great saving to the firm of J. M. Freck & Co.; that the mode in which the business was done was known to Freck; that monthly aceounts-current and accounts-sales were rendered by Blakiston to Freck and were received-by him, and his accounts in the firm’s books were made out from them, and that no objection was made by Freck to this mode of doing business. But the master held, as matter of law, that, as the commissions were earned out of dealings with the property of J. M. Freck & Co., Blakiston must account for his share of those commissions.

       As to the second point, the master found that the sale of the coal of J. M. Freck & Co. was made at full market prices ;• that accounts-sales were rendered to Freck showing the names of the purchasers and the prices paid, and no objection was made by Freck. The master, however, reported that a point was made before him not taken in the pleadings, viz., that inasmuch as Blakiston was partner in the selling and buying firm, he must account to -his selling partner for the profits he made as purchaser.
    The master, however, reported that there was no right to have an account of profits made on sales by the purchasing firm which accrued to the common partner of both firms.
    As to the third point, he reported that Bepplier was the name in which government contracts had been taken by several persons and firms, among whom was Blakiston, Graeff & Co., J. B. Blakiston being one of that firm ; that they did sell or deliver the coal of J. M. Freck & Co. to him, and he sold it to the government. But as it was proved that J. M. Freck & Co. received precisely the same price as the government paid Bepplier, there was no ground for account.
    Freck’s counsel maintained that the coal thus used was to be treated as a contribution of capital, and thus he was entitled to the
      pro rata share of the profits on that basis. The evidence showed that the sales to Repplier were returned in the account-sales rendered Ereclc, and the ¡3roceeds carried into the accounts-current, and the balances accounted for between Blakiston and Freck. And it was also proved that there was a contribution of capital with which Freck had nothing to do, and the profits w'ere not made out of the sales of J. M. Freck’s coali
    As to the 4th point, the circumstances were precisely the same as those under the 3d, except that Wright did receive a profit on the coal, and the master ruled that Blakiston must account for his share of that profit.
    The master thereupon reported that there should be a decree for an account by the defendant of the amount received for his share of the commissions paid to Blakiston, Graeff & Co., and of the profit derived from the Wright contract. He also reported that plaintiff should account to defendant for certain items which had been excluded from the settlement between them.-
    Both parties filed exceptions. The plaintiff’s exceptions were, inter alia, because the master did not direct an account of the profits received on the sales of coal purchased by Blakiston, Graeff & Co., and of the profits received under the Repplier contract. After a hearing on the exceptions the Court of Nisi Prius entered the following decree: “December 30th 1874, the exceptions filed by the defendant sustained, and also the 14th exception filed by the plaintiff. The other exceptions of the plaintiff are dismissed, and thereupon it is ordered and decreed that the bill be dismissed with costs.” No opinion was filed.
    Both plaintiff and defendant appealed, assigning for error the decree of the court. Defendant’s appeal was argued and decided in March 1876, and is reported 2 Weekly Notes 669. The case now came on to be heard on the plaintiff’s appeal.

      E. O. Parry .and C. Stuart Patterson, for appellant.
    — (1) The appellee’s plea of “account stated” would be a bar to the appellant’s prayers for a general accounting, if the plea had been proved. The master finds against the plea, though he treats it as a question of estoppel. The decree of this court, and the opinion of Woodward, J., in Freck v. Blakiston (2 Weekly Notes 669), shows that the account stated does not bind the appellee in this case. How then can it bind the appellant ? The account stated is, in terms, a settlement not of firm business, but of a mortgage, and the balance-sheet therein referred to' had been repudiated by the appellee as a final statement of firm transactions. The plea not being proven, the appellant is entitled to a reversal of the decree below, and to a decree for a general accounting.
    (2) If the plea were proven, the appellant would be entitled to “surcharge and falsify,” and this he has done by his amended bill in three particulars, viz.:—
    (a) As to the commissions on sales of coal. The firm articles bound the appellant “to superintend the working of the colliery,” and the appellee “to sell or dispose of the product thereof.” Neither partner contributed any money as capital, but the appellee loaned to the firm the money which constituted its cash capital, and that loan has been repaid with interest. The articles also provided that the firm profits should be equally divided. As the equivalent for his phare in the profits, the appellee was bound to sell the coal. Instead of doing that, he employed his other firm of Blakiston, Graeff & Co. to perform that duty, and he compelled J. M. Freck & Co. to pay that firm three per cent, commissions on the sales, and two and a half per cent, guarantee commission. The guarantee* commission is, in any possible view, unauthorized, for the articles obviously imply that the business experience and skill of the appellee should be so applied as to make sales to paying customers, and that the firm should be its own insurers as against bad debts. Nor is there better warrant for the commission on sales. The appellee was entitled to charge office rent, clerks’ salaries, &c., if he sold the coal; but he had no right to wholly neglect to perform the one duty imposed on him by the articles, and then to charge the firm with the cost of having his duty performed by Blakiston, Graeff & Co., part of which cost went into his own pockets as a partner in the the latter firm.
    Selling through Blakiston, Graeff & Co. did not really save money to J. M. Freck & Co., for all the estimates relied on by the appellee include salaries for that service, as compensation for which the appellee received one-half the firm profits.
    The appellee risked no capital, rendered no service to the firm and received one-half of its profits, and, also, as partner of Blakiston, Graeff & Co. part of their profits on business done for J. M. Freck & Co.

      (b) As to the sales by the appellee of J. M. Freck & Co.’s coal to Blakiston, Graeff & Co. at less than the “ current market price of the day.”
    (The testimony was commented on in -detail to show that “the current market price” meant not the buying price of coal at Port Richmond, but the selling price; that the sales in question were made by the appellee at the former price when they should, in fairness to the appellant, have been made at the latter price; that the appellant never acquiesced in the commission or the sales to Blakiston, Graeff & Co.)
    (<?) As to the application by'the appellee of the firm coal to the uses of the government contracts, in which the appellee was interested.
    (The letters of the appellee and the testimony were referred to, to show that the appellee participated in the contracts on behalf of J. M. Erect & Co., and .that that firm was entitled to share in their profits.)
    Bast’s Appeal, 20 P. E. Smith 801, is decisive in favor of appel- ■ lant. That case holds, with regard to one of the very contracts in question here, that “there is an implied obligation among partners that their property shall be used for the benefit of the firmand that an interest in a' government coal contract, though taken by a partner, and intended by him for his individual benefit, must be held to enure to the benefit of his firm.

      Paul and McMurtrie, for appellees.
    — (1) It is not disputed that all profits earned from firm business must be accounted for. Nor is it pretended that the account stated precludes an inquiry into that. But this was a substitution of the agreed mode of doing the business. It was the hiring of the firm of Blakiston, Graeff k Co., who were paid a commission in lieu of the expense. If the share of these must be accounted for, Blakiston, who paid his share of the expense, while Freck paid nothing, must be allowed that. And the question is, can Freck, after acquiescing in this mode of doing the business, require such an account? His conduct shows he agreed to the substituted mode of performance: Jackson v. Sedgwick, 1 Swanston 460-9; Boyd v. Mynatt, 4 Ala. 79; Stoughton v. Lynch, 1 Johns. Ch. 470.
    It would be as proper to charge him for interest received on loans to the firm: Chippendale v. German Mining Co., 4 DeG., McN. & G., 19-36.
    (2) The claim, as made by the bill, lacks the facts to sustain it. The claim now made is, that a common partner must account for profits on goods bought, because they are firm property. The vice of the argument lies in that statement, whereas by the purchase they ceased to be firm property of the sellers. That a partner maybe also partner in another firm no one can doubt: Glassington v. Thwaites, 1 Sim. & Stu. 124.
    And transactions between firms having a common partner are treated in every respect as if the firms were composed of strangers, except as to the effect of notice: 1 Lind. on Part. 675; Bolton v. Puller, 1 Bos. & Pul. 546; Philips v. Crammond, 2 Wash. C. C. 446; Collamer v. Foster, 26 Verm. 759; Reno v. Crane, 2 Blackf. 218; Parrish v. Lewis, 1 Freem. Ch. 309; Coffee v. Brian, 3 Bing. 55; Jackson v. Stopherd, 2 Cr. & Mees. 366.
    The rule governing transactions between trustee and cestui que trust, that the purchaser must prove fairness, does not prevail: Chambers v. Howell, 11 Beav. 13.
    So where it is between corporation and director: Gordon v. Preston, 1 Watts 385.
    And the rules as to the evidence that proves the sale, and the exigency of pleading to sustain an account, prove the rule: Collamer v. Foster, 26 Verm. 759 ; Kelley v. Greenleaf, 3 Story 101; Herrick v. Ames, 8 Bosworth 118; Levi v. Karrick, 13 Iowa 353; Reno v. Crane, 2 Blackf. 218; Perry v. Butt, 14 Ga. 708-9; Foster v. Andrews, 2 Penna. 161.
    (3) There were no profits under the Repplier contract from the sale of the coal of J. M. Freck & Co., and the claim to a partner’s profits derived in another firm, has not even a pretence that can be argued, unless it be law that being partner in one business draws to it all other business of all the partners.
    (4) The master thought this point was ruled by Bast v. Pearson. The ground of that decision was that the defendant sold his firm’s coal, and claimed the right to keep all the profits. Here all the profits on the sale were accounted for. If the profits on the sale by the purchaser must be accounted for, the rule must be that firms having common partners can never deal with each other. And really it comes to this, that firm property can never become separate property of one of the partners. The absurdity of this argument was exposed in Ex parte Ruffin, 6 Vesey 119, 127, 128, where it is said, if that were law a firm could never wind up, for that was only done by giving each a separate ownership in part of the common property. The rule, however, is well settled: Ex parte Williams, 11 Vesey 3; Ex parte Fell, 10 Id. 347; Campbell v. Mullett, 2 Swanst. 570; Ex parte Peake, 1 Madd. 358, and the cases cited under the second point.
    The plaintiff does not even aver that the sales were secret; and that he was informed of them by the monthly accounts is not disputed in the evidence.

       The Reporter was kindly furnished with the report of this case by R. C. McMurtrie, Esq , of counsel for appellees.

   The judgment of the Supreme Court was entered, March 5th 1877,

Per Curiam.

— After a careful examination of this case we have not been able to discover any substantial error in the decree made at Nisi Prius.

Decree affirmed, with costs to be paid by the appellant, and the appeal dismissed.


author: Per, Curiam.

text:
    Perrot versus The City of Philadelphia.
    1. Under sect. 5 of the Act of 21st April 1858 (Paraph. L. 385), an officer appointed by the board of public education in Philadelphia cannot recover the value of his services from the city unless an appropriation has been made therefor by councils.
    2. P. was appointed “ Superintendent of Music” in the public schools in Philadelphia, in 1872, by the board of public education, and councils made an appropriation to pay his salary for that year and the two following years. No appropriation was made for that purpose for 1875. P. continued to perform the duties of his office and brought an action for his salary against the city: Held, that under sect. 5. of the above act he could not recover.

      February 14th 1877.
    Before Agnew, C. J., Sharswood, Mbrcur, G-ordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 276.
    Assumpsit by Augustus Perrot to recover the value of services rendered to the city of Philadelphia as “ Superintendent of Music” in the public schools. The following case was stated for the opinion of the court:—
    “ By an act passed March 3d 1818 (Pamph. L. 124), ‘ the Controllers of Public Schools for the city and county of Philadelphia,’ were created and established.
    “ By sect. 9 of this act the directors were vested with power ‘ to appoint teachers and provide all things necessary for maintaining and conducting the schools.’
    “ By sect. 5, said controllers were vested with power ‘ to establish a Model School’ and ‘ to provide suitable books’ and ‘ to have general superintendence over all schools established.’
    “ By sect. 23 of £ an act to consolidate and amend the several acts relative to a general system of education by common schools,’ passed June 13th 1836 (Pamph. L. 533), the said controllers were authorized £ to establish one Central High School.’
    “ By an act passed April 16th 1845 (Pamph. L. 502), said controllers were made a body politic under the name of £the Controllers of the Public Schools of the First School District of Pennsylvania.’
    “By sect. 23 of an act passed February 2d 1854 (Pamph. L. 35), the property vested in said corporation created by the Act of 1845 was vested in the city of Philadelphia, subject as therein recited, with a provision in sect. 6 of said act, that the Controllers should contract no debt other than for the ordinary supplies, repairs and payment of labor and salaries.
    “ By an act passed March 15th 1870, it is enacted that from and after January 1st 1870, the board of school controllers shall be known and designated by the name of ‘ the Board of Public Education of the First School District of Pennsylvania.’
    “In 1872 the study of music was introduced into the schools of the first district, and each ward had music teachers appointed by its directors [from persons who had previously received certificates of the said board as to their qualifications to teach music], to teach the theory of music and vocal exercises; and the Board of Public Education established the office of Superintendent of Music, at an annual salary of $1815, and an appropriation for the year 1872 was made at that rate (Ord. 1872, item 354, p. 34).
    “The same sum was appropriated for 1873 (Ord. of 1872, item 459, p. 619), and for 1874 (Ord. of 1873, item 516, p. 656).
    “ The plaintiff was elected Superintendent of Music by the Board of Public Education as aforesaid, in January of each year and also in January 1875, and has exercised and does continue to exercise the duties of said office. He has been paid the prior years, but no appropriation has been made to defray the salary for the year 1875. On the contrary, the said Board of Public Education, in the estimate of their probable expenditures for the year 1875, which they submitted to the councils of the said city in the latter part of 1874, included an item of $1815 for the salary of a Superintendent of Music, which item passed one branch of the said councils, but was stricken -out in the other branch, previously to the 1st day of January 1875. The ordinance making the appropriation to the said board for the year 1875 was passed and approved by the mayor previously to the 1st of January 1875, after the said item had been stricken out.
    “ If the court shall be of opinion that the plaintiff is entitled to recover as and for his salary at the rate established, notwithstanding the failure of the councils to appropriate, then judgment to be entered for said plaintiff at that rate, the damages to be assessed by the prothonotary, in equal monthly instalments from January 1st 1875. If otherwise, then for the defendant. ’
    “It is also agreed that any Acts of Assembly of the Commonwealth of Pennsylvania, or ordinances of the city of Philadelphia, which may be pertinent to the question raised by the above case stated, shall be considered as embraced and referred to therein, though the same may not be specifically recited or referred to.”
    The court below was of opinion that the Board of Public Education had not the power to establish the office of “ Superintendent of Music,” and that, even granting it that power-, the plaintiff could not recover, inasmuch as councils had not made an appropriation to pay him, and entered judgment on the case stated for the defendant. The plaintiff brought this writ of error.

      D. W. Sellers, for the plaintiff in error.
    — The rule laid down by the court below makes the whole function of public education depend upon councils. A total failure by the latter to make an appropriation defeats the mandate of the Constitution to “provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this Commonwealth above the age of six years may be educated :” Article X.
    It must be conceded that if an appropriation be made by the councils for the salary of a teacher, their judgment must prevail: City v. Johnson, 11 Wright 382; but it is contended that where the controllers incur a debt permitted under section 23d of the Act of February 2d 1854, the councils are to make an appropriation therefor, which will, in a court of law, be presumed to be a reasonable limit of the discretion of the controllers. In other words, these statutes are to be construed so that the government shall go on.
    The General Assembly, in creating the Board of Public Educanon, meant that the duties specially confided to them should be fulfilled, as well as any confided to the councils. They are alike public trusts. To hold that a total neglect of duty by one public body is a legal warrant which defeats a duty imposed on another public body, is to construe statutes, so that anarchy is the end of the law, instead of order.
    The Act of 1854, sect. 39 (Pamph. L. 42), makes it the duty of the controllers to furnish an annual estimate to the councils of the “ amount that, in their judgment, will be necessary for the support of the public schools.” The duty of councils is to appropriate the amount necessary for such support. Because of the political superiority of the taxing and appropriating power, if the councils give less than the controllers require, the latter must submit. No mandamus would lie to make the councils appropriate more than they wish, but it would lie to make them appropriate some amount.

      Robert N, Willson and Charles R. T. Collis, for the defendant in error.
    — Even if there were distinct authority from the Commonwealth to appoint a Superintendent of Music and fix his salary, it would nevertheless appear that this power would be subject to and dependent upon the. appropriation by councils of the necessary funds: City v. Flanigen, 11 Wright 21; City v. Johnson, Id. 382; Bladen v. City, 10 P. F. Smith 464.
   The judgment of the Supreme Court was entered, March 5th 1877,

Per, Curiam.

— The law of this city is clear that no contract or debt can be created without the authority of the councils and an appropriation to meet it. The power to bind the city for debts or contracts was fully- examined in the case of The City v. Flanigen, 11 Wright 21 ; and the very question before us was in effect decided at the same term in The City v. Johnson, 11 Wright 382. The Act of 21st April 1858, is very pointed: “ That no debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils : Provided, that persons claiming unauthorized debts or contracts, may recover against the person or persons illegally making the same.” The previous legislation for the city was all in this direction, as shown in Elanigen’s case, and this act became the crowning sheaf which capped the whole. The argument that the power exists in a case such as this to bind the city to the payment of some compensation, leaving the amount to be fixed by councils, cuts the throat of the law. As said in Elanigen’s case, “ the power to contract is essentially a power to disburse. A valid contract is uncontrollable ; demanding its performance at the hands of the judiciary, and calling to their aid the whole power of the government. If an appropriation for its payment is not made this year, it must be in the next, or some following.” Now it is against this power to bind the city to any payment that the Act of. 1858 was levelled. If subordinate departments can bind at all, the power to fix the compensation is simply illusory. We think no error was committed by the court below and the judgment is therefore affirmed.


author: Mr. Justice Mercur,

text:
    List versus Rodney et al.

    1. In the devolution of estates the law presumes that the possibility of bearing children exists, even when a woman has passed the age to which the ability to do so usually continues.
    2. A testator devised land to “ my daughter S. * * *, to be held by her husband in trust for her children.” By a codicil he provided as follows : “ In item (2) of my will the devise to my daughter S. and to her children is intended and shall give to her children living at her death and to the lawful issue of any of them if dead, in right of such one deceased, and to their heirs for ever, the real estate so devised and for want of such issue living, then that the real estate so devised to my daughter S. shall go to and vest in her husband during his natural life. * * *” S. had two children at the date of the will, one of whom afterwards died without issue. Two children were born after that date, one of whom also died without issue. S. and her husband (both then past seventy-five years of age) and the two surviving children, both sui juris and unmarried, contracted to sell the land. The purchaser refused the title and a case was stated for the opinion of the court. „•
    Held, that S. took a life-estate with a contingent remainder in the surviving children.
    Held, that if either of these children should die, leaving issue, during the life of S., such issue would not be barred by the deed of their parent, and that if other children should be born to S. and survive her, they would be entitled to a share in the estate.

      Held, that the law would not consider the physical impossibility of S. bearing children after she had reached the age of seventy-five years, and therefore the title tendered to the purchaser was not a marketable title.
    February 15tb 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1877, No. 108.
    - This was a case stated in which John Rodney, in his own right and in right of his wife, and as trustee under the -will of James S. Duval, Sarah Rodney, his wife, James Duval Rodney and Louisa C. Rodney were plaintiffs, and J. Frederick List was defendant. The action arose out of a sale of a piece of ground by the plaintiffs to the defendant, a deed for which the defendant refused to accept on the ground of a defect in the plaintiffs’ title. The case stated was as follows:—
    “ James S. Duval, the father of Mrs. Sarah Rodney, died in the year 1842, having first made his will, dated March 18th 1842, and a codicil thereto, dated March 22d 1842, duly proved April 19th 1842, at Philadelphia, in and by which will and codicil he devised and bequeathed, inter alia, as follows:—
    “ (Second clause of will.) ‘ To my daughter, Sarah Rodney, I bequeath the house in Germantown, in which she with her husband, John Rodney, now resides; also, the house and grounds adjoining the aforesaid, purchased by me of the late John McOlune’s heirs; also, one-half of my store in Market street, Philadelphia, lying east of No. 179 on said street; also one-half of my store in Commerce street, adjoining No. 179 on the north-east, together with the house at the corner of Tenth and Filbert streets, Philadelphia; the aforesaid properties to be held by her husband, John Rodney, whom I hereby appoint trustee, in trust for her children.’
    “ (And by codicil to will.) ‘ Also, that in item number (2) of my said will the devise to my- daughter, Sarah Rodney, and to her children is intended and shall give to her children living at her death and to the lawful issue of any of them if dead, in right of such one deceased, and to their heirs for ever, share and share alike, the real estate in the said clause of my will so devised and for want of such issue living then that the real estate so devised to my daughter, Sarah, shall go to and vest in her husband during his natural life for his own use and benefit, subject to the trusts in the said clause mentioned.’

      “ Sarah Rodney was, at the date of the making of said will and codicil, married to the Reverend John Rodney, and had at that time two children, James Duval Rodney, one of the plaintiffs, and Sarah Rodney, who died in 1859 unmarried and without issue; and since the date of the will there have been born two children, Louisa C. Rodney, another of the plaintiffs, and Kate Rodney, who died in 1845 unmarried and without issue.
    “ Both John Rodney and Sarah Rodney are now upwards of seventy-five years of age. James Duval Rodney and Louisa C. Rodney are the only children of John and Sarah Rodney now living, and they are both mi juris, unmarried and without issue.
    “ On May 8th 1874, the plaintiffs and J. Frederick List entered into a contract in writing, under seal, by which they agreed to sell, and the said J. Frederick List agreed to buy, a lot of ground in the Twenty-second ward of Philadelphia, described, &c., with the appurtenances, for the price of $600; and List further covenanted to pay the said sum of $600, upon the execution and delivery of a sufficient deed conveying to him a good and marketable title in fee simple to the above-described lot of ground.
    “ On December 27th 1875, in pursuance of this agreement, John Rodney, in his own right and in right of his wife, and as trustee under the will of James S. Duval, deceased, Sarah, James Duval and Louisa C. Rodney, executed and tendered to List a deed in fee for the lot of ground above described.

      “List expressed his willingness to perform his contract, in case the plaintiffs could make him a good and marketable title in fee simple to the premises; but he refused to accept the title tendered, alleging that the plaintiffs, either or all of them together, did not have a title in fee to said premises, and could not make a good and marketable title in fee simple thereto according to the terms of the agreement.
    “ If it be the opinion of the court that the plaintiffs can make a good and marketable title in fee simple to the above premises, then judgment to be entered for the plaintiffs for the sum of $600 ; otherwise, judgment to be entered for the defendant. The costs to follow the judgment, and either party may sue out a writ of error to thé next term of the Supreme Court, without oath or bail.”
    The court below entered judgment for the plaintiffs, to which the defendant took this writ of error.

      JE. Goppee Mitchell, for the plaintiff in error.
    — If there are or may be parties, not now before this court, who may be heard hereafter, this court will not compel us to take the plaintiffs’ title: Doebler’s Appeal, 14 P. F. Smith 17.
    Mrs. Rodney did not take a fee simple under the will, for the limitation is to her “ and to her children:” White v. Williamson, 2 Grant 253; Coursey v. Davis, 10 Wright 25; Smith’s Estate, 9 Phila. 348; Tyler v. Moore, 6 Wright 374; Guthrie’s Appeal, 1 Wright 9, which overruled the earlier cases, and decided that “ children” is seldom or never a word of limitation. Shoemaker v. Huffnagle, 4 W. & S. 437, and Haldeman v. Haldeman, 4 Wright 29, are the only cases not overruled in which the contrary was held; but these cases are clearly distinguishable from this case. An almost unbroken current of authority from Clayton v. Clayton, 3 Binn. 476, to Taylor v. Taylor, 13 P. F. Smith 481, shows that “ children” is a word of purchase.
    Mrs. Rodney did not take an estate tail, as she had children living at the date of the will: Wild’s Case, 6 Coke 17; Cote v. Von Bonnhorst, 5 Wright 243.
    Nor can an estate tail be raised by implication from the. words “for want of such issue living,” for the interposition of the remainder in fee to her children forbids such a construction: Curtis v. Longstreth, 8 Wright 297; Sheets’s Estate, 2 P. F. Smith 257.
    The true interpretation of the will gives a life-estate to Mrs. Rodney with a contingent remainder to her children. Suppose a child of Mrs. Rodney should die in her lifetime, leaving issue, and then Mrs Rodney should die, would the issue of the deceased child take by force of this will, or by descent from its parent ? To read the clause is to answer the question: clearly not by descent. It follows that the present children of Mrs. Rodney have contingent interests now, which depend upon their surviving their mother, unless violence is done to the intention of the testator, expressed in unambiguous words : Abbott v. Jenkins, 10 S. & R. 298. Womrath v. McCormick, 1 P. F. Smith 504, is an extreme case and is not parallel to this case. The decision there rested upon the circumstance that the intention of the testator was to express the time when the estates of his children were to vest in possession, not in interest. And further, in that case the limitation was to the testator’s own and only heirs; here it is to only a part of the testator’s heirs. McBride v. Smyth, 4 P. F. Smith 245, is in point.
    But even if the remainder be vested, being to a class, it will open and let in after-born members of the class : Minnig v. Batdorff, 5 Barr 503; Ross v. Drake, 1 Wright 373; and the law will not consider the physical impossibility of the birth of children in any case : 2 Bl. Com. *125 ; Jee v. Audley, 1 Cox 324.

      Inman Horner and 8. Davis Page, for the defendants in error.—
    Mrs. Rodney’s children now living take vested remainders in fee: Wager v. Wager, 1 S. & R. 374; Minnig v. Batdorff, 5 Barr 503; Manderson v. Lukens, 11 Harris 31; Womrath v. McCormick, 1 P. F. Smith 504; Ross v. Drake, 1 Wright 373; Fetrow’s Estate, 8 P. E. Smith 424; Fassit’s Estate, 2 Weekly Notes 571; Mull v. Mull, Id. 538.
    Perhaps these estates in Duval and Louisa Rodney may be divested by or on their death during the life of Sarah without leaving issue them surviving; but the fee in them is joerfectly good until so divested, and the only persons to be benefited in that event are the husband of Sarah and those who take under the limitation to which his estate is subject, viz., the heirs of Sarah, or the heirs of her children.
    But that contingency does not present any obstacle to the vesting of the estate in remainder in the first instance:
    Whether the trust in the second clause of the will be for Sarah and her children, or for “her children” only, and the limitations in the codicil be explanatory of the character of their estate, rather than of Sarah’s, is not material to the argument, because, if “ the children” be presented as the new root, and the final limitation be 'to those who would be capable of taking from and under them in the event of their death in the lifetime of their mother, without leaving-issue at her death, yet as those who would be capable of taking from or under them must be their legal representatives, “their heirs and assigns,” any alienation by them made would bar such claim. The final'limitation is contingent on failure of issue on the "death of Sarah, and only enures to the benefit of her heirs, or of her children’s heirs ; in either case those who take under it are bound by the acts of Sarah and her children — “ haeres estpars antecessoris.”

    The title offered to List would appear to be open to attack, only from any child or children that may. hereafter be born to Sarah and her husband, both being now upwards of seventy-five years of age.
    While admitting that as long as life remains, the legal possibility of'issue continues, and that in the eye of the law Sarah may have a child, yet the possibility of such an event in the eye oí reason is so remote that no man of common sense would esteem it as within the range of probability.
    Under the contract for the sale of this real estate, the vendee has the right to have conveyed to him a good and marketable title — one that is not doubtful. “ But the doubts which will operate in a court of equity are not doubts made up for the occasion, nor based on captious, frivolous and astute niceties, but such as produce real, bond, fide hesitation in the mind of the chancellor. The doubts must, in the language of Lord Eldon, be ‘ considerable and rational,’ such as would and ought to induce a prudent man to pause and hesitate in the acceptance of a title affected by them Judge King, in Dalzell v. Crawford, 1 Parsons’s Select Equity Cases 37. See Kilpatrick v. Commonwealth, 7 Casey 204, and Anshutz v. Miller, 2 Weekly Notes 547.
    In answer to the argument of the plaintiff in error, counsel argued:
    Under the second clause of the will the devise is “ to my daughter, Sarah Rodney, * * * to be held in trust for her children;” Mrs. Rodney had two children living at the time of making the will. The case of White v. Williamson, 2 Grant 253, decided that “a deed to A., for the use of the wiie and children of B., conveys a life-estate to the wife of B. with remainder to her children ;” and in Coursey v. Davis, 10 Wright 29, it was held that “ a conveyance to a married woman and her children exclusively, and their heirs and assigns,” gave a life-estate to the woman, and a vested estate in remainder to the children as a class, so that those in being at the date of the will, as well as those subsequently born, would be entitled on the termination of the life-estate.
    It is submitted that these cases govern the construction of the 2d clause, and that an examination of all the decisions where similar words are used will establish beyond doubt that the only construction of which they are capable is — estate for life to Mrs. Rodney, vested remainder in fee to the children as a class.
    Then as to the codicil, -which is merely explanatory: the testator starts by reiterating in the same, but more concise, language, the devise in the will; “ also, that in item No. (2) of my will, the devise to my daughter, Sarah Rodney, and to her children, is intended and shall give to her children living at her death and to the lawful issue of any of them, if dead, in right of such one deceased,” &c.
    It is contended by the plaintiff in error that this definition, and the use of the words “living at her death,” make the remainder to the children contingent, and defer its vesting until the children living at the death are ascertained by the death of Mrs. Rodney, and that the issue of any deceased child surviving Mrs. Rodney would take directly under the will, and not by descent from its parent.
    The rifle on the subject as laid down in Hawkins on Wills 237, is: “It has long been an established rule that all estates are to be holden to be vested, except estates in the devise of which a condition precedent to the vesting is so clearly expressed that the court cannot treat them as vested without deciding in direct opposition to the terms of the will.”
    Certainly in this case, where the testator has, by a clause in his will, given a vested estate to children as a class, the court will not, in construing a codicil to the will which by its own very terms is directed to be explanatory merely of that clause of the will, turn the vested estate into a contingent one.
    But the clause itself shows that the testator intended that the children of Mrs. Rodney should have remainders vested during Mrs. Rodney’s lifetime; for he says in the clause under consideration, “ shall give her children living at her death, and to the lawful issue of any of them, if dead, in right of such one deceased,” showing that he contemplated such a right as existing in her children prior to Mrs. Rodney,’s death.
    It is also respectfully submitted that the use of the words “ living at her death,” as interposed by the testator in the codicil, is intended to define the estate of Mrs. Rodney and to confine it to a life-interest, and not to make a condition or qualification of the estate of the children, for it must be borne in mind that nowhere else in the will is there any direction that Mrs. Rodney should have only a life-estate ; it denotes the time of enjoyment of the estate of the children, ndt its quality: McBride v. Smyth, 4 P. F. Smith 245; Smith on Executory Interests 281; Abbott v. Jenkins, 10 S. & R. 296. The opinion of Strong, J., in Ross v. Drake, 1 Wright 375, is directly in point and governs this case; Womrath v. McCormick, 1 P. F. Smith 504. See also Ross v. Drake, supra; Minnig v. Batdorff, supra; Manderson v. Lukens, 11 Harris 31; Wager v. Wager, 1 S. & R. 374; Mull v. Mull, 2 Weekly Notes 538; Fetrow’s Estate, 8 P. F. Smith 424.
    The only possible interest which the deed tendered to List does not convey, either directly or by way of estoppel or warranty, is an interest which a possible child of Mrs. Rodney, born after the date of the deed, might take conjointly with the other children; that is to say, if there is a possibility that another child may be born to Mrs. Rodney, then there is a possibility that this deed does not convey every interest to the lot in question, and the plaintiff in error can refuse to take the conveyance. Mrs. Rodney is over seventy-five years of age.

      The doctrine laid down in 2 Bl. Com. *125, occurs in, the chapter on Estates Tail after the possibility of issue extinct. Blackstone’s words are as follows: “A possibility of issue is always supposed to exist in law, * * * even though the donees be each of them an hundred years old,” and he quotes Coke on Littleton 28, a, who, writing on the same subject, says, “for that the law seeth no impossibility of having children.”
    That doctrine means only that where land is given to a man and his Avife and the issue of their bodies begotten, they having once had the probability of having issue, the laAV will not, for the purpose of altering the quality of the estate, fix any time for that probability of their having issue ceasing, and accordingly Coke and Blackstone lay it down that there is always a possibility of having children.
    It is respectfully submitted to the court, however, that the rule of law as to “the possibility of issue” is simply a presumption governing the devolution and quality of estates, but that in a particular case where the court is asked to presume it as a question of fact from the presumption of law, they will take notice that in that particular case the so-called possibility is an impossibility.
    While as applied to the general question of the quality and quantity of estate'“ the laAV seeth no impossibility,” yet in a question of fact as presented here, the rule is but a presumption of fact, and just as in the case of the presumption of legitimacy, may be rebutted by showing an actual physical and moral impossibility that there can be children.
    This is not a question as to whether the testator was not influenced by the age of Mrs. Rodney, as in Jee v. Audley, supra, in making the will, but it is a question of fact, viz., Avhether there is any possibility of a child being born to Mrs. Rodney. It is not a question of law as to the devolution of an estate such as Blackstone’s rule applies to, but is a practical, not an abstract, question of probability or possibility.
   Mr. Justice Mercur,

delivered the opinion of the court, May 7th 1877.

The defendants in error derived title to the real estate in controversy under the will of James S. Duval. The language, in item No. 2 of the original will, is, “ to my daughter, Sarah Rodney, I bequeath” (the land in question) “ to be held by her husband John Rodney, whom I hereby appoint trustee, in trust for her children.” By codicil thereto he further devised and declared “that in item No. 2 of my said will the devise to my daughter Sarah Rodney, and to her children, is intended and shall give to her children living at her death, and to the lawful issue of any of them, if dead, in right of such one deceased, and to their heirs for ever, share and share alike, the real estate of the said clause of my will so devised, and for Avant of such issue living, then that the real estate so devised to my daughter Sarah shall go to and vest in her husband during his natural life for his own use and benefit, subject to the trusts in the said clause mentioned.”

At the time of the execution of the will and codicil Sarah Rodney had two children. Two other children were born afterwards. One of the former and one of the latter died unmarried and without issue. Sarah Rodney and her husband are still surviving. They, and the two surviving children, constitute the defendants in error. Can all of them jointly convey a good and marketable title in fee simple to the land in question ? To maintain this action they must not only show their title to be good, but it must also be ■ marketable. The vendee is not bound to accept a doubtful title. Every title is doubtful which exposes the party holding it to litigation : Bumberger v. Clippinger, 5 W. & S. 311; Speakman v. Forepaugh, 8 Wright 363; Doebler’s Appeal, 14 P. F. Smith 9; Swayne v. Lyon, 17 Id. 436.

If under any contingency of the will there may be a devisee over, who is not a party to this suit, he would not be bound by anything we may now decide. As then he would nof be absolutely concluded by this judgment, the vendee would be exposed to the peril and annoyance of litigation from such devisee : Id.

It is true, to justify the rejection of the 'title the doubt must be considerable or rational: Stapylton v. Scott, 16 Vesey 272. The possibility on which .a remainder is to depend must not be too remote : Fearne on Remainders 250. It should be a common possibility, such as death, or death Avithout issue, or coverture or the like: Id.

Guided by these rules, we proceed to consider whether the defendants in error can noAV convey a title clear from such a degree of doubt as to be fatal to their recovery.

By looking at both parts of the will it is very evident that the testator intended to give to his daughter, Sarah Rodney, a life-estate only. In the original Avill he gave her the property and appointed her husband trustee thereof, for her children. This clause on its face does not clearly express the precise estate his daughter should take, nor the time Avhen an estate should pass to her children. Under the authorities, however, the daughter would have taken a life-estate only with remainder to her children. The case of Shirlock v. Shirlock, 5 Barr 367, would indicate that she might have taken that as tenant in common with them. The later cases, however, establish that she would have taken a life-estate in the Avhole, Avith remainder to her children: White et al. v. Williamson et al., 2 Grant 249; Cote v. Von Bonnhorst, 5 Wright 243; Curtis v. Longstreth, 8 Id. 297; Coursey v. Davis, 10 Id. 29. That such was the testator’s intent is clearly expressed in the codicil. He therein recognises the devise previously made to his daughter and her children, and then hb declares his intent to be to give it to her children living at her death, and to the lawful issue of any of them if dead.” He does not disturb her life-estate previously given. By giving no estate to her children during her life, he manifestly gives her a life-estate in the whole, and distinctly defines the time when the remainder shall take effect. Neither the words of the codicil nor its spirit indicate a present intent to give any estate to the children in esse; but an intent to give in the future. That future time was fixed. It was to be at the time of the death of his daughter. The class of persons who might at that time be living, and who answered the requirements of the will, were then to take. Until the death of his daughter he gave her children nothing. At her death he gave to such of her children as might then be living and to the lawful issue of any of them who were then dead. It is very clear that the testator did not intend to give, during the life of his daughter, any vested estate to her children in esse at the date of the will, nor to her subsequently-born children. If it vested in the children during the life of their mother they could alien the same or it might be taken from them by adverse process. It would be doing great violence to the whole language of the codicil to give that construction to the devise : Abbott et al. v. Jenkins, 10 S. & R. 296. The intention of the testator being thus made clear, the rule in Shelley’s case cannot be invoked to prevent that intention from being effective. It is only after the intention has been discovered that the rule in Shelley’s case can be applied. It cannot be used as a means of discovering the intention : Fearne on Contingent Remainders *188; Hileman v. Bouslough, 1 Harris 351; Doebler’s Appeal, 14 P. F. Smith 9; Yarnall’s Appeal, 20 Id. 335.

It is true in doubtful cases, the construction should be in favor of vested, in preference to contingent, remainders, but it does not seem to us that sufficient doubt exists in this case to give it that effect. The case of Womrath v. McCormick, 1 P. F. Smith 504, has been cited to prove the estate was vested as to the children in esse at the execution of the will. That case, however, is distinguishable in several respects from this. There, the devisees in remainder were all in esse and ascertained. They were the children of the devisor. There was nothing contingent as to the interest devised, more than always exists as to the immediate remainder-man. That is, he must outlive the particular tenant for the estate to vest in possession. There the testator gave the “ rents, income and interest” of all his estate, real and personal, to his wife during her life, and directed that upon her death it should be valued and divided into as many parts as he should then have children living, the issue of any deceased child to represent their respective parent or parents. There the devise was to all the children of the testator. Not so the present case. Here the devise of the life-estate was to one only of his several children, and the remainder to the children of that child only. Here the interest which the children in esse should take depended upon the contingency of children being subsequently bom. There is no gift to the whole class of children before the mother’s death. Here is not merely the postponement of a division of the estate until the death of the life-tenant; but the remaindermen cannot be known until the time arrives to designate them. Prior to that time it is necessarily contingent so far as relates to the persons who are to take : Smith on Executory Interests 281; McBride v. Smyth, 4 P. F. Smith 245.

If we are correct in the views expressed two conclusions follow:—

1. If any of the children now living should die during the life of their mother, leaving lawful issue, the title of such issue will not be barred by the deed of their parent.

2. If other children should be born and survive their mother, they will be entitled to share in the estate. 'JChis cannot be denied. It is contended, however, that the advanced age of Mrs. Sarah Rodney precludes such an event. We may concede that she has passed the age to Avhich the ability to bear children usually continues; yet the law appears to have settled that there is no age beyond which it is impossible. “ A possibility of issue is always supposed to exist in law * * * even though the donees be each of them an hundred years old:” 2 Blackstone’s Com. *125. “For that the law seeth no impossibility of having childrenCoke on Littleton 28, a. Whether the rule rests upon the indelicacy of the acts to which such an inquiry might lead, or to the great uncertainty of arriving at' an accurate conclusion, we know not; but certain it is, the rule has stood the test of time, and received the sanction of ages. No case has been cited showing that it has ever before been questioned in Pennsylvania. Nature has fixed no certain age, by years, at which a child-bearing capacity shall begin or end. Any conjecture based on age is too doubtful and uncertain to result in any reliable conclusion. It was well said in Jee v. Audley, 1 Cox 324, “ if this can be done in one case it may in another, and it is a very dangerous experiment, and introductive of the greatest inconvenience to give a latitude to such sort of conjecture.”

It is contended that this doctrine of possibility of issue is only applicable to cases of estate tail after possibility of issue extinct; that it is simply a presumption governing the devolution and quality of estates, and that it should not be presumed Avhen the facts show it to be impossible. This argument is fallacious. The very question before us is whether the possibility of issue is extinct. It affects the transmission of the estate. It diminishes the interests which the children noAv living may take. The presumption of Iuav is in favor of issue, notwithstanding advanced age. It is a presumption of laAV on the very fact, which Ave are requested to say destroys the presumption. The argument makes a conjectural conclusion rest on a fact, when the law declares no such conclusion shall be deduced from that fact.

The two contingencies we have considered are not too remote. They are the direct and immediate contingencies provided for by the testator, as likely to arise before the estates in remainder should vest-in his daughter’s children and in their issue. Neither one is so entirely removed from doubt as to make the title of the vendors certain. They leave a cloud on the title which creates doubt and hesitation. We therefore conclude that the defendants in error cannot convey such an indubitable, marketable title as to compel its acceptance. The learned judges therefore erred in holding otherwise.

Judgment reversed and judgment in favor of the plaintiff in error, on the case stated.