author: Agetew, J.

text:
    McKelvy’s Appeal.
    1. An assignment for creditors of all its assets by an insolvent firm works a dissolution if no provision be made to continue the business.
    2. A partnership having been dissolved for more than six years, the , Statute of Limitations is a bar to an account against a partner who is not a liquidating partner.
    3. A payment by one partner of debts of a firm within six years gives him an action for contribution against his fellow, on account of that payment, but does not involve a settlement of the whole account.
    4. A bill for account was brought by one partner against another, the defendant pleaded the statute; the plaintiff to bring himself within the exception that the accounts were between merchants, and that no account had been settled, must so aver by replication.
    5. Upon dissolution partners have no longer any relation of trust or confidence to each other; their implied authority and agency for each other ceases.
    November 16th. 1872.
    Before Thompson, C. J., Read, Agnew,
    Sharswood and Williams, JJ.
    Appeal from the District Court of Allegheny county: In Equity: No. 107, of October and November Term 1872.
    This was a bill in equity filed, April 29th 1867, by Samuel McKelvy against Thomas S. Blair.
    The bill set out:—
    1. On January 1st 1853, the plaintiff, defendant and John C; Blair entered into partnership in the manufacture of steel, to continue seven years. By the articles of partnership each to be an “equal third partner;” the Blairs to attend to the business: J. C. Blair to take charge of the works, and the defendant “ to attend to the commercial and financial department,” the Blairs “to give their undivided time and attention to the business.” The plaintiff was not required to do so: the plaintiff put into the capital $31,615.20, defendant $7481.08 and J. C. Blair $19,548.14, in all $58,644.42 ; the defendant to pay plaintiff inte- . rest on $12,067.08, the excess paid in by plaintiff beyond his proper share; “ this makes all the shares equal;” each partner’s interest in the firm to remain unimpaired till the expiration of the term, with the exception that each might draw out $1200 during the first year; an account of stocks, debts, &c., to be taken on the 1st of July in each year, the dividend of the profits to be credited to the individual account of each partner, and each may draw out his dividend, &c.; if either partner should die his share to remain in the concern till the end of the term, and his representatives to be paid interest on its amount instead of one-third of the profits.
    2. On the 17th of May. 1854, the firm made a voluntary assignment for the benefit of creditors, and all the plaintiff’s real estate was sold to pay partnership debts.
    3. There had been no settlement between the plaintiff and defendant, the defendant having always refused to settle on the repeated demands of the plaintiff.
    4. The plaintiff had paid more than one-third of the partnership debts, and upon settlement there would be due to him from defendant $28,482, with interest from January 1st 1853.
    The prayer was for an account and payment of the balance found due by defendant.
    On the 12th of July 1867, the defendant pleaded the Statute of Limitations, to which the plaintiff filed a replication.
    On the 16th of February 1869, the plaintiff filed an amended bill. It set out:—
    1. The final proceedings under the voluntary assignment, showing the confirmation, July 16th 1858, of the assignee’s account and the report of the auditor on it.
    2. The defendant was, by the terms of the partnership contract, “ the financial agent and manager of the firm of McKelvy & Blairs, and as such acted and still does act up to the final settlement of the partnership accounts as the trustee of the remaining partners.”
    3. Defendant had received large sums of money “in such .capacity ” for which he had not accounted.
    The plaintiff had paid within three years a considerable sum of money in the “ partnership accounts, for which, as well as for various sums from time to time previously paid (the defendant) is equally liable,” and is bound to pay his share.
    5. The defendant, in the year 1854, admitted his indebtedness to the plaintiff in the sum of $20,000 and upwards, and a settlement would probably have been effected but for plaintiff’s absence as a soldier in the army.
    6. Before entering into the partnership the defendant borrowed from plaintiff $12,000, and agreed to pay it with' interest, as shown by the articles of partnership in the original bill.
    7. Defendant promised plaintiff that if he “would not enter suit ” he, defendant, would pay the unsettled balance if plaintiff would rely on defendant’s honor, &c.
    The prayers were for an account and payment of the balance due; that defendant should pay the $12,000 with interest from the time of borrowing; that defendant pay the interest on the $12,000 from that time.
    The defendant pleaded the Statute of Limitations to the amended bill, and also demurred to that part claiming the $12,000 borrowed money, because the plaintiff for that had a remedy at law.
    The plaintiff joined in the demurrer, and demurred to the defendant’s plea.
    The court sustained the defendant’s demurrer to the plaintiff’s bill, and overruled the plaintiff’s demurrer to the defendant’s plea, and decreed that the bill be dismissed with costs, &c.

      The plaintiff appealed to the Supreme Court, and assigned the decree of the court for error.

      W. JD. Moore (with whom were Weir Gibson), for appellant.

      M. W. Acheson, for appellee.
    — The assignment dissolved the firm : Collyer on Part., §§ 109, 111. Account render is the remedy, and the Statute of Limitations applies: Angelí on Limitation, sect. 69; Ozaas v. Johnson, 1 Binn. 191; Leonard v. Leonard, 1 W. & S. 342; Andrew v. Allen, 9 S. & R. 241; McFadden v. Hunt, 5 W. & S. 468; Hamilton v. Hamilton, 6 Harris 20; Collyer on Partnership, § 374 and note; Barber v. Barber, 18 Vesey 286.
    January 6th 1873,
   The opinion of the court was delivered, by

Agetew, J.

— The partnership between Samuel McKelvy and John O. and Thomas S. Blair, began by agreement under seal dated January 1st 1853, and was to continue seven years. The plaintiff, McKelvy, sets forth in the second paragraph of his bill, that on the 17th of May 1854, by reason of pecuniary losses and embarrass-1 ments, the firm of McKelvy & Blairs made a voluntary assignment of all their effects for the benefit of their creditors. No averment is made in the bill that the partnership continued in business after the assignment. A contrary inference is to be drawn from the third paragraph, which avers that since the assignment McKelvy had repeatedly called on Thomas S. Blair for a final settlement of accounts, which he had refused. The second paragraph of the amended bill avers that by the terms of the partnership agreement, Thomas S. Blair was the financial agent and manager of the firm, and as such is the trustee of the other partners. This has reference to his duty under the agreement, but contains no averment that Thomas S. Biair became the liquidating partner after dissolution. The averment that as such (financial agent and manager of the firm) he acted, and does still act, up to the final settlement of the partnership accounts,” is evidently only a legal conclusion from the agreement, and not an averment of the fact itself as existing since the dissolution. As a legal inference, it is not true that Thomas S. Blair became the liquidating partner after dissolution. Therefore, the next clause in the amended bill must not be construed to mean that the sums alleged to be received by him were received in the capacity of liquidating partner. The question of the dissolution of the partnership stands wholly upon the effect of the assignment for the benefit of the creditors in 1854, unaided by any averment of fact to show a continuance of the partnership relation, or that Thomas S. Blair became the liquidating partner, bound to render an account of the affairs of the firm.

That an assignment by an insolvent firm of all its assets for creditors necessarily works a dissolution of the partnership, when no provision to continue the business is made by the partners, seems to be very plain. It is so stated by Sergeant, J., in Brown v. Agnew, 6 W. & S. 238. Bankruptcy is an admitted cause of dissolution : Collyer on Part., § 59. It is not easy to distinguish from bankruptcy the case of a voluntary assignment by an insolvent firm, which strips the partnership of all its means of continuing business, followed by an actual relinquishment of the business.

The partnership being dissolved in 1854, and Thomas S. Blair not being a liquidating partner, the Statute of Limitations is a bar to the plaintiff’s demand for an account, unless the case falls within some exception: Collyer on Part., §§ 207-8; Hamilton v. Hamilton, 6 Harris 20.

It was, no doubt, to establish an exception that the plaintiff introduced the fourth paragraph into his amended bill, alleging that the plaintiff had within the last three years paid a considerable sum of money in the partnership accounts, for which, with sums previously paid, Thomas S. Blair is alleged to be equally liable. But this, at most, can operate only as a demand for contribution. Certainly a partner may be compelled to contribute to the payment of a partnership debt for which the partners continued jointly liable, but this does not imply, of necessity, a settlement of the whole partnership account, unless the account is still open and current. This is ruled in Brown v. Agnew, 6 W. & S. 238. “ The partnership (said Sergeant, J.) had been dissolved by a general assignment by the partners for the payment of their debts in August 1832, more than six years having elapsed from the dissolution till the payment of the claim and institution of the suit. These circumstances, we think, raise a fair presumption that the partnership account had been settled or terminated in some way, till it is overthrown by some evidence on the part of the defendant, that the general partnership accounts yet continued open and current.”

The next exception is, that the account between McKelvy and the Blairs is one concerning the trade of merchandise, between merchant and merchant, and therefore it takes the case out of the statute. Whether every partnership whatever, or a partnership such as this, for manufacturing steel in all its varieties, is a transaction of merchandise within the meaning of the exception as to merchants’ accounts, we need not decide. There are two cases in which this subject has been examined very fully: Coster v. Murray, 5 Johnson Chan. Rep. 522, decided by Chancellor Kent; and Spring v. Gray’s Ex’r., 6 Peters 151, decided by C. J. Marshall, in both of which stress was laid on the fact that the action was not founded on an account concerning the trade of merchandise between merchant and merchant, their factors or servants, and therefore not within the exception of the statute. There is, on the other hand, a class of cases in our reports, called cases of mutual accounts, carried down within six years, where the Statute of Limitations does not apply to the items beyond the six years: Van Swearingen v. Harris, 1 W. & S. 356; Thomson v. Hopper, Id. 467; Chambers v. Marks, 1 Casey 296; Hay v. Kramer, 2 W. & S. 139. These cases rest on the implied acknowledgment arising from the mutual charge and credit between the parties, and not on the exception in regard to merchants’ accounts. Supposing the case of the plaintiff might fall within the exception as to merchants’ accounts, yet he has not brought himself within the exception. The defendant pleaded the Statute of Limitations to the bill, and demurred to that part of it which had charged the loan of $12,000. To the plea of the statute the plaintiff demurred, and joined in the defendant’s demurrer as to the alleged loan, and set the cause down for argument on the bill, amended bill, plea and demurrers. The plaintiff did not reply to the plea of the statute that the account was between merchants, and that no account had been settled. On this part of the case the quotation of the language of Judge Sergeant, in Brown v. Agnew, supra, may be continued. After stating that the presumption of settlement lasts till overthrown by evidence that the partnership accounts remained open and current, he says: This burden lies on him who seeks to avoid the plea of the Statute of Limitations to an action of account render or assumpsit, by the replication that it was an account, between merchant and merchant; for the replication to such a plea must go further, and state that no account of said merchants was ever adjusted or settled” (citing Godfrey v. Sanders, 3 Wilson 79-80; Williams’s Saunders 127,note); see also Bevan v. Cullen, 7 Barr 281. “ By analogy, therefore (he continues) after the lapse of six years it lies on the party setting up an account to aver that it remains open and current." That the account must be one not closed by striking a balance between the partners, or by the delivery of a stated account unobjected to, and is still open and running between the partners, is the clear result of the authorities, as may be seen in the following cases: Barber v. Barber, 18 Vesey, Jr. 286; Foster v. Hodgson, 19 Id. 180; Jones v. Pengree, 6 Id. 580, note C.; Spring et al. v. Gray, 6 Peters 166-169; Toland v. Sprague, 12 Id. 333; Bevan v. Cullen, 7 Barr 281. And in reason and justice, why should not the statute close upon partners, who, for six years after dissolution, take no steps to ascertain the balance between them ? On what principle should such an account remain open for all time ? As soon as dissolution takes place, they stand no longer in any relation of trust or confidence to each other — the implied authority given by each to the other ceases, and they are no longer agents one for the other: and the objects of their association having come to an end, the time for a settlement has arrived. Six years is a fair time to allow for closing their affairs, and is a reasonable time for demanding a settlemenfc as in an analogous case. Thus, in the case of moneys collected by attorneys: Campbell v. Boggs, 12 Wright 524 ; Rhines v. Evans, 16 P. F. Smith 192. And a subscription to shares of railroad stock, even without a call for instalments: Pitts. & Conn. R. R. v. Byers, 8 Casey 22; see also Morrison v. Mullin, 10 Id. 12; Barton v. Dickens, 12 Wright 518. The case of Stiles v. Donaldson, 2 Dallas 264, and 2 Yeates 105, is no exception, for there the offer of set-off expressly set forth that the accounts were made beyond sea, bringing the case within one of the provisos of the statute.

In regard to the alleged loan of $12,000, little need be said. No such loan, in fact, appears in the article of copartnership, and that is all that is before us on this point. The sum of money put in by each partner as capital is distinctly set forth. It is expressly stated that McKelvy has put into the concern $31,615.20 ; J. O. Blair has put in $19,548.14, and Thomas S. Blair has put in $7481.08. The agreement of T. S. Blair to pay McKelvy interest on 12,067.08, the excess paid in by McKelvy over an equal share of the capital, and that this makes all the shares equal, is evidently for the purpose of making an equal division of profits, not to create a loan. It would be a singular omission, if intended to be a loan, that no provision in the article was made for its repayment. As a loan, it would be an individual transaction between McKelvy and T. S. Blair, inconsistent with the fact that $31,615.20 were put in by McKelvy as capital. There was a reason, also, that it should be part of the capital, and not a mere advance to T. S. Blair, as thereby the assets of the firm would be a security to McKelvy, instead of the private responsibility of T. S. Blair. Finding no error in the record, the decree of the District Court is affirmed, with costs to be paid by the appellant.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    McClure’s Appeal.
    1. A testator gave to his wife personal property “and the whole of my real estate during her life, if she remain my widow; but if she marry again she is to have but half of my real estate during her life. * * * At my wife’s decease, my real estate to be sold and equally divided amongst my nephews and nieces, namely, my brother Alexander’s children, Sarah (and others, naming each), and my sister Margaret Kelly’s children (naming each), each to have an equal share.” Held. 1. That the direction to sell was a conversion. 2. The legacies to the nephews and nieces were vested.
    2. Sarah married and died in the life of the widow, intestate and without issue. Held,, that her husband surviving was entitled to her legacy.
    3. To work a conversion the direction to sell must be positive and explicit, irrespective of all contingencies and independent of all discretion.
    4. That the period of the sale is remote and the conversion cannot i made till the time arrives, is not an exception to the rule.

      5. What determines the vesting of a legacy, is whether the time is annexed to the substance of the gift as a condition precedent.
    6. If there he an antecedent absolute gift independent of the direction and time of payment, it is vested; if there be no substantial gift, but one implied from the direction to pay, it is contingent; unless from the circumstances and the face of the will a contrary intention appear.
    7. When the fund is given to one for life or till the legatee reach a particular age, &c., the interest is immediately vested, being in the nature of a remainder.
    8. Though there be no other gift than in the direction to pay or to distribute in futuro, yet if the postponement be for the convenience of the fund, or to let in some other interest, the vesting will not be deferred.
    9. If the enjoyment be postponed to accommodate the estate, to pay ’ debts, &c., not chiefly on account of the character of the donee, the vesting is immediate.
    10. If the arrival of the time be a condition, without which the bequest would not have been made, it is contingent.
    11. If the arrival of the time is not absolutely necessary before the gift can attach to the legatee, it is vested: and the payment merely postponed.
    12. Vesting rather than contingency is favored, and in doubtful cases the gift is treated as vested.
    November 16th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of Allegheny county: No. 148, to October and November Term 1872.
    The proceedings in this case arose upon the distribution of the estate of William McClure, deceased, who died in 1848, having made his will, dated July 6th 1844, as follows:—
    “ First. I will that all my just debts and funeral [expenses] shall be fully satisfied out of my personal estate. I will and bequeath to be paid to my wife, Jane, all my household and kitchen furniture, and the one-half of all my other personal property, and the whole of my real estate during her life, if she remain my widow. But if she marry again, she is to have but the one-half of my real estate during her life.
    “ I will and bequeath to my brother Alexander, one thousand dollars, and my sister, Elizabeth Carothers, three hundred dollars, out of my personal estate, if there should be enough not devised to pay them ; if not, each to get their proportion of what is. If there should be any over paying them, it is to be divided equally among all my nephews and nieces. At my wife’s decease, my real estate to be sold and equally divided amongst my nephews and nieces, namely, my brother Alexander’s, Francis, Alexander, Samuel, James, Sarah, Martha and Andrew; my sister Margaret Kelly’s children, John Boyd, Martha, Margaret, Richard and William; my sister Elizabeth Carothers’ son John, each to have an equal share.
    “ The above-named Samuel, son of my brother Alexander, I will that his share be put into the hands of his brothers Francis and Alexander, whom I appoint guardians for him, and allow them to put his share out on interest for him, the interest only to be applied to his use, and not the principal. At his death the principal to be equally divided amongst his brothers and sisters or their heirs.” * * *
    He appointed John Pollock and Hezekiah D. Gamble executors.
    Sarah McClure, one of the children of the testator’s brother Alexander, married James Pearce, and died in February 1858, intestate and without issue, but leaving her husband to survive her.
    The testator’s widow did not marry again; she died in January 1868.
    The testator’s real estate was sold in October 1870, under the directions in the will. John Pollock* the surviving executor, settled his account, which was confirmed nisi, January 14th 1871. John M. Kennedy, Esq., was appointed auditor to distribute the balance in the hands of the executor.
    James Pearce, the surviving husband of Sarah, a daughter of Alexander McClure, claimed her share, alleging that the order to sell the real estate was a conversion; that the legacies to Alexander’s children were vested, and that therefore he was entitled, as surviving husband, to receive her share. The other nephews and nieces alleged that there was no conversion; that the legacies did not vest till the death of the widow of the testator, and that therefore the legacy of Sarah would go to those of the nephews and nieces living at the death of the widow. The auditor reported that the direction of the will to sell the real estate was a conversion, and that the legacies to the nephews and nieces of the testa- ; tor vested on his death ; he, therefore, awarded Sarah’s share to n! James Pearce, her surviving husband.
    The nephews and nieces excepted to the report of the auditor. The Orphans’ Court overruled the exceptions, and confirmed the report.
    Alexander McClure and others, nephews and nieces of the testator, appealed to the Supreme Court, and assigned the decree of confirmation for error.

      Hampton f Dalzell and H. D. Poster, for appellants.
    — The intention of the testator is superior to all rules: 2 Williams on Exrs. 1103; Bayard v. Atkins, 10 Barr 15; Lamb v. Lamb, 8 Watts 184.
    The testator’s intention is that the estate should be kept within the number of his nephews and nieces, and that the death of any one should not result in giving his or her share to a stranger: Patterson v. Hawthorn, 12 S. & R. 112. A provision for a particular member of a class is to be applied to all members of the class: 2 Redfield on Wills 622, pl. 40. A legacy is vested or contingent as the time appears to have'been annexed to the gift, or * to the payment of it: 2 Williams on Exrs. 1099; Moore v.
      Smith, 9 Watts 403; Batsford v. Kebbell, 3 Vesey 363; King v. Crawford, 17 S. & R. 118 ; Bowman’s Appeal, 10 Casey 19.

      JR. S. Woods, for appellee.
    — The direction to sell was a conversion : Erwin’s Estate, 6 P. F. Smith 405; Brolasky v. Gaily, 1 Id. 509; Evans’s Appeal, 13 Id. 183; Willing v. Peters, 7 Barr 287 ; Allison v. Wilson, 13 S. & R. 330 ; Morrow v. Brenizer, 2 Rawle 185; Burr v. Sim, 1 Wharton 265; Smith v. Starr, 3 Id. 62; Rice v. Bixler, 1 W. & S. 445.
    The legacies were vested : McGill’s Appeal, 11 P. F. Smith 46.
    May 17th 1873,
   The opinion of the court was delivered, by

Williams, J.

— The rule is well settled, that land directed to be converted into money, or money into land, is to be regarded in equity as that species of property into which one or the other is so directed to be converted; and this rule obtains whether the direction is given by deed or will. But the direction to convert must be positive and explicit, irrespective of all contingencies and independent of all discretion. If the direction to sell is absolute, it is no exception to the rule that land directed to be sold and turned into money is to be considered as money, from the death of the testator, for all the purposes of his will, because the period of sale is remote, and the conversion cannot be made until the time arrives: Rinehart v. Harrison’s Ex’rs, Bald. 177; Allison v. Wilson’s Ex’rs, 13 S. & R. 330; Willing v. Peters, 7 Barr 287; Bleight v. Man. and Mech. Bank, 10 Id. 131; Parkinson’s Appeal, 8 Casey 455; Anewalt’s Appeal, 6 Wright 414; Chew v. Nicklin, 9 Id. 84; Brolasky v. Gally’s Ex’rs, 1 P. F. Smith 509 ; Horner’s Appeal, 6 Id. 405; Evans’s Appeal, 13 Id. 183. The testator in the case before us directed, at his wife’s decease, his real estate to be sold and equally divided amongst his nephews and nieces. The direction is positive and explicit ;*vHnd it follows that it operated as a conversion of the real estate into money from the testator’s death, and that it is to be treated as money for all the purposes of his will. Were, then, the legacies to the testator’s nephews and nieces vested or contingent ? As a general rule, a legacy is to be deemed vested or contingent, just as the,time shall appear to be annexed to the gift, or the payment of it. If futurity is annexed to the substance of the gift, vesting is suspended ; but if it appears to relate to the time of payment only, the legacy vests instantly. The point which determines the vesting is not whether time is annexed to the gift, but whether.it is annexed to the substance of the gift, as a condition precedent. Where there is an antecedent absolute gift, independent of the direction and time of payment, the legacy is vested; but where there is no substantive gift, and it is only implied from the direction to pay, the legacy is contingent, unless from particular circumstances or the whole face of the will a contrary intention is to be collected: 2 Wm’s Ex’rs 1059. Here there is no substantive gift to the testator’s nephews and nieces independent of the direction that at his wife’s decease his real estate be sold and equally divided amongst them, and unless it appears from his whole will that he intended that the legacies should vest immediately upon his death, they must be regarded as contingent. Where the fund, which is the subject of the legacy, is given to another person beneficially for life, or until the legatee arrives at a particular age, or until certain debts are paid, the legatee will take an immediate vested interest in the subject, since such bequests are in the nature of remainders; the rule as to which is, that the interests of the first and subsequent takers vest together: Lane v. Goudge, 9 Ves. 226; Balmain v. Shore, Id. 507. Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred till the period in question. Thus where stock is bequeathed to A. for life, and after his decease to trustees, upon trust to sell and pay, and divide the proceeds to and between O. andD.; as the payment or distribution is evidently deferred until the decease of A., for the purpose of giving precedence to his life interest, the ulterior legatees take a vested interest at the decease of the testator: 1 Jarm. on Wills 764. Where the enjoyment of the gift over is postponed to accommodate the estate, or for the payment of debts, or to meet any other burden first imposed, and not chiefly on account of the character of the donee, it is regarded as a decisive circumstance in favor of immediate vesting: 2 Redf. on Wills 236, sect. 37. In Bayley v. Bishop, 9 Ves. 6, there was a devise to the testator’s wife for life of all his messuages, lands, &c., and from and after her decease, to trustees upon trust to sell the same, and among other bequests to lay out 5001. in an annuity for the life of his son; and it was held to be a vested interest in the son surviving the devisor but dying in the lifetime of the wife, on the ground that the sale and payment were postponed merely on account of the estate for life in the widow, and not with reference to the circumstances of the legatee. The mode or form of the bequest seems to be regarded by Vice-Chancellor Wigram as immaterial. The gift of a legacy, under the form of a direction to pay at a future time, or upon a future event, is, in his opinion, not less favorable to vesting than a simple and direct bequest of a legacy at a like future time, or upon a like event. The question is one of substance and not of form ; and in all cases it is whether the testator intended it a condition precedent that the legatees should survive the time appointed by him for the payment of their legacies; and the answer to this question must be sought for out of the whole will, and not in the particular expressions only in which the gift is made: Leeming v. Sherratt, 2 Hare 14.

If the arrival of the time is a condition, without which the testartor would not have made the bequest, as in the case of marriage or puberty, then, in the very nature of the thing, the time is annexed to the substance of the gift; and if the condition or contingency does not happen, the gift never arises. But if the time does not appear to have been fixed by the testator 'as absolutely necessary to have arrived before any part of his bounty can attach to the legatee, the legacy vests immediately, and the time of payment is merely postponed, not being annexed to the substance of the gift: Monkhouse v. Holme, 1 Br. C. C. 298; May v. Wood, 3 Id. 471. The same general principles are fully recognised and asserted in our own cases. Thus it is said in Letchworth’s Appeal, 6 Casey 175, that the law always inclines to treat the whole interest in property as vested rather than contingent, and, therefore, in case of doubt, it declares the interest vested; that a devise or legacy depending upon an event that is sure to happen is vested if the happening of the event does not form a part of the description of the devisee, and if the suspensive expressions can, consistently with, or by the aid of other parts of the will, be properly interpreted as referring not to the resting of the title, but .to the vesting of the enjoyment: Smith’s Executory Interests, secs. 309, 310. In that case the testator directed that “at and after the decease of my said wife, and in case she should marry, and when my youngest child shall arrive at the age of twenty-one years, then it is my will that all my estate shall be distributed by my executors agreeably to the intestate laws of this Commonwealth.” He died in 1841, leaving a widow and three daughters. The widow died in 1844. The eldest daughter was married in 1847, and, having survived her issue, died in 1849. The youngest daughter arrived at the age of twenty-one years on the 2d of January 1856. The executors, under a power in the will, sold the real estate of the testator, and settled a final account in which they charged themselves with a balance for distribution. It was held that the testator’s children took a vested interest under the will, and that one of the daughters having died before the time fixed for distribution, leaving no child surviving, her husband was entitled to her share. This case cannot be distinguished in principle from the one before us; and the same general doctrine is maintained in Manderson v. Lukens, 11 Harris 31; Parkinson’s Appeal, 8 Casey 455; Chew’s Appeal, 1 Wright 23; Young v. Stoner, Id. 105; Ross v. Drake, Id. 373; Womrath v. McCormick, 1 P. F. Smith 504. In Chew’s Appeal it was said that generally a bequest after the death of a particular person, to whom an antecedent interest is given in the same will, is held not to denote a condition that the legatee shall survive such a person, but only to mark the time when the gift shall take effect in possession — that possession being deferred merely on account of the life interest limited to the person on whose death the gift is to take full effect. See to the same effect Blamire v. Geldart, 16 Ves. 314. In Womrath v. McCormick, the testator gave his wife a life interest in all his estate, and at her decease provided that the property should be divided into as many shares as there were children living, or the issue of deceased children, and each to have one share. It was held to create vested interests in such children as survived the testator from the time of his death; the distribution only being deferred. In Horner’s Appeal, 6 P. F. Smith 405, the will is substantially the same as in this case; and it was there held that the interest of one of the children who died in the lifetime of the wife, to whom an antecedent life estate was given, passed to the purchaser at the Orphans’ Court sale, because the administrator, aside from the authority of the Orphans’ Court, had power to sell the interest as personalty, and his deed was an equitable assignment of the personal interest of the intestate in the proceeds of the testator’s realty when it should be converted into money, as directed by his will. It is true that the question whether the legacy was vested or contingent was not mooted, but the fact that it was not raised by the counsel, the auditor, or the court, is all the more significant that it was regarded as a vested legacy, for if the legacy was contingent, the purchaser would have acquired no interest in the proceeds of sale for distribution. Where the enjoyment of an entire fund is given in fractional parts, at successive periods, which must eventually arrive, the distinction between time annexed to payment and time annexed to the gift becomes unimportant. In such a case it is well settled that all the interests vest together. Thus a legacy to one for life, and to another at his death, goes to the legal representatives of the latter, should he not live to take it himself: King v. King, 1 W. & S. 205. Where the purpose is to give interests to different persons in succession, each gift is alike immediate, though the second taker cannot have the benefit until after the death of the first: Blamire v. Geldart, supra.

There can be no doubt, under these authorities, that the legacies in this case vested in the testator’s nephews and nieces immediately on his death. It is clear that the testator did not intend to die intestate as to any portion of his property. After making provision for his wife, by giving her all his household and kitchen furniture, and one-half of all his other personal property, and the whole of his real estate for life, defeasible as to a moiety thereof in the event of her marriage; and giving to his brother Alexander and his sister Elizabeth certain pecuniary legacies out of his personal estate, he directs the residue thereof, if any, to be equally divided among all his nephews and nieces; and at his wife’s decease, his real estate to be sold and equally divided amongst his nephews and nieces, individuating them by their names, and declaring that each is to have an equal share. The gift is to his nephews and nieces, not as a class, but by name as individuals, without words of survivorship, and with no bequest over, in the event of their death, in the life of the widow. The plain inference is, that each was expected to take a share at the decease of the testator. If the share of each nephew and niece were not so vested, and would not pass to their representatives on their decease, they must be regarded as undisposed of, and an intestacy to that extent would thus be created.

The testator was making an equal distribution of his real estate among his nephews and nieces, and the distribution was postponed, as is manifest from the whole face of the will, in order to make comfortable provision for the widow in lieu of her dower under the intestate act. If this necessity had been out of the way, the distribution would have been immediate. There was no consideration or circumstance, immediately connected with the legatees, which was the ground of the postponement. It cannot be reasonably inferred that the testator intended that the gift to his nephews and nieces should depend on their surviving the widow; and that if they died during her life, leaving issue, their shares should go to his next of kin to the exclusion of their children. If there had been no conversion of the real estate, there can be no doubt that they would have taken a vested interest in the remainder. Why should the direction to sell and divide the proceeds make the gift contingent ? It is manifest from the whole face of the will that the gift was intended to be absolute; the wife’s decease is not a condition precedent to its vesting, but is merely the time fixed for its enjoyment. There was, then, no error in the construction given to the will by the auditor, and in distributing to the appellee the share of the proceeds of the land belonging to his deceased wife; and the decree of the Orphans’ Court must, therefore, be affirmed.

Decree affirmed, at the costs of the appellants.


author: Agnew, J.

text:
    Barker’s Appeal.
    A' testator directed a trustee to procure a house for his wife and family and pay her §300 annually out of the profits of his real estate for her maintenance and §300 more for maintenance of his children, in the manner specified, during minority, the provision being limited to his wife’s widowhood. When his children should attain age, or if his wife u shall at any time prior thereto marry,” all his estate to be converted into money, one-third “ shall be paid absolutely to my wife in lieu of the previous provisions for her maintenance,” the other two-thirds to go to his children. In ease the one-third should not amount to §4000, the deficiency to be made up from the children’s two-thirds, “ so that my wife’s share shall be absolutely not less than §4000.” Held, that the wife’s share was vested.

      November 18th 1872.
    Before Thompson, C. J., Read, Agnew, Shaeswood and Williams, JJ.
    Appeal from the Orphans’ Court of Beaver county: No. 230, to October and November Term 1871.
    In the matter of the distribution of the balance in the hands of George S. Barker, executor and trustee, under the will of Thomas A. Barker, deceased.
    The following facts were submitted in a case stated to the Orphans’ Court:—
    T. A. Barker, the testator, died February 15th 1859, seised of real estate in Pennsylvania, and also' in Iowa, and owning a considerable amount of personal estate.
    He left a will, dated February 7th 1859, by which he gave to his wife Eliza all his household and kitchen furniture, and further • directed1 as follows: — ■
    “ Item. Out of my real estate, hereinafter devised in trust to my executor, or out of the proceeds of any sale thereof, I direct my executor, as trustee, to furnish or procure a suitable dwelling-house and appurtenances for the occupancy and comfort of my wife Eliza and family; and, also, to pay to my said wife the sum of three hundred dollar’s annually, out of the rents and profits or proceeds of sale of real estate, for her proper maintenance; and, also, the further sum of three hundred dollars annually from the personal estate, for the maintenance of my minor children, Frank, Harry and Helen (making the aggregate amount of six hundred dollars)', in equal quarterly instalments, and such other reasonable sum neeessary for the support or education of my said children, the said sums payable during the period of minority of my eldest son, Frank, and until he shall attain the age of twenty-one years, and in case of his death before attaining the age of majority, then until the period when my second son shall have attained the age of twenty-one years, and in case of the death of both of my sons before either of them is of age, then until the time when my daughter shall attain the age of twenty-one years, and the provisions declared being also limited to a period so long only as my said wife shall be and remain my widow, with the further condition, that in case my said wife shall again marry, then the said dwelling-house and appurtenances, and the said sum of six hundred dollars so provided, I direct to become thereafter portions of my general estate, and my wife and several children then to receive their portions; as hereinafter directed, in lieu thereof.
    “ Item. I give, devise and bequeath all my real and personal estate, of whatever kind or nature, or wherever situated, not already herein before bequeathed, to George S. Barker, of the borough of New Brighton, my brother, whom I do hereby appoint my sole executor of this my last will and testament, as well as my trustee, subject to-the directions and bequests hereinbefore made, and upon the following trusts:—
    “ That as my said executor and trustee, he is hereby empowered in the management of my real and personal estate, in his discretion to sell at any time, all or any part of my real estate, as he may deem wise and advantageous, and the proceeds thereof to use, convert or invest, for the accumulation of the trust funds.”
    (All of his personal property he directed to be converted into money and paid in equal portions to his children on their attaining the age of twenty-one years; and in case of the death of either or any of them, to the survivor of them.)
    “ I accordingly further direct that whenever either or any of my said children shall arrive at the age of twenty-one years, as herein-before provided, or whenever my said wife Eliza shall at any time prior thereto marry, all my estate, real and personal, in such case, shall thereupon be sold by my said executor for money, or converted into money, and with other money or accumulations of money, all collections or proceeds derived from the conversion or sale of bonds, mortgages, of leases, of real estate, or of notes, or other evidences of claims, shall become a like final distribution fund, as' hereinbefore set forth, and that of the remaining proceeds and accumulations of the real estate devised to my said executorin trust, sold and to be sold, the one-third portion thereof shall be paid absolutely by my said executor to my said wife Eliza in lieu of the previous specific provisions for her maintenance, and that the two-thirds portion, or residue, shall be added to and form part of the aggregate special fund of distribution to my children as already provided, according to the. terms, conditions, contingencies as to age, death and survivorship, as is therein fixed and specified ; provided, nevertheless, that in case the said one-third portion of the proceeds and profits and accumulations of sales of my said real estate shall not have amounted to the sum of four thousand dollars, then my executor is directed to apportion any deficiency by abatement from the residue or respective shares of my said children which they would otherwise be entitled to receive and enjoy, so that my wife’s share shall be absolutely not less than four thousand dollars, as her provision and distributive portion out of real estate sold.”
    The widow of Thomas A. Barker died unmarried, but by her will, dated the 7th of March, 1862, she bequeathed to her sister Caroline O. Morían, one thousand dollars, and to her sister Susan A. Wade, the interest of one-half of the residue of her estate, to be paid to her annually, and various other legacies to other persons, and died March 27th 1862, before the arrival of the said Frank Barker at the age of twenty-one years; he has since attained the age of twenty-one years.
    George S. Barker, executor and trustee, converted the estate of said decedent as directed by the will of February 7th 1859, and filed in the Orphans’ his account showing a balance of $18,975.17 personal, and $15,508.30 proceeds of real estate.
    The widow lived and died in the homestead provided by the executor and trustee, and was paid the annual allowance to the period of her death accepted under provisions of will.
    The question submitted for the decision of the court is whether under the will of Thomas A. Barker, Eliza O. Barker his widow at her death possessed any vested devisable interest in the four thousand dollars, or one-third of the proceeds of real estate therein mentioned, that passed or could pass to her executors, or her legatees and devisees named in the provisions of her will.
    The Orphans’ Court “ being of opinion that the bequest to Eliza O. Barker, in the will of Thomas A. Barker deceased, is a vested legacy, it is ordered and decreed that George S. Barker, executor and trustee aforesaid, do pay to John W. Wilson, executor of the last will and testament of Eliza O. Barker deceased, the sum of four thousand dollars, together with lawful interest thereon, to be computed from the 1st day of September 1870.”
    Frank Barker and others, heirs at law, &c., of Thomas A. Barker, appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      B. B. Chamberlin and K. Sice, for the appellants.
    — The $4000 was not a vested interest in the widow, but her interest was determined by her death: 4 Kent’s Com. 25; Co. Litt. 42 a; 1 Jarman on Wills 731; McCullough’s Appeal, 2 Jones 197; Comm’th v. Stauffer, 10 Barr 350; Hoopes v. Dundas, Id. 75; Knepley’s Appeal, 5 Harris 19; 2 Williams on Ex. 1082, 1181; 2 Redfield on Wills 575, 598; Atkins v. Hiccocks, 1 Atkyns 500; Richards v. Baker, 2 Id. 321; Bennett v. Robinson, 10 Watts 348.

      W. S. Morelan, for appellee.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

— An examination of the entire will of Thomas A. Barker leaves no doubt in our mind that the final provision for his widow, Mrs. Eliza O. Barker, was vested and not contingent. After making sundry bequests to his children as memorials, and to his sister one of $200, he begins the general distribution of his estate in these words: “ Of my remaining worldly possessions and goods, real and personal, I do hereby make the following disposition.” He thus declares his unequivocal intent to dispose of all his worldly estate, and to die intestate of none, an intent which is frustrated, as we shall hereafter see, if the final bequest to Mrs. Barker be contingent and not vested. He then bequeaths to his wife Eliza all his household and kitchen furniture. The next thing he does, not however in the order set down in his will, for its arrangement is not orderly, is to create a trust of'all his estate real and personal, with large powers conferred on his trustee in its management, conversion and final sale. This trust, it is to be believed, began immediately, and embraced all that was comprehended under the terms “remaining worldly possessions and goods, real and personal,” excepting perhaps the household and kitchen furniture, which went directly to Mrs. Barker. The trust was then devoted to the bequests and purposes of the testator’s will. The next purpose of the testator was a temporary provision for his widow and children during their minority, or until the widow should again marry, a thing which he deprecated, and desired her not to do for the sake of his children; but in case she did so, he directed that this provision should cease, and that the dwelling-house and money constituting the temporary provision should fall back into his general estate, of which the widow and children should “ then receive their portions in lieu thereof,” indicating thereby clearly his intention to make a final, fixed, and vested provision for both widow and children. They are linked together both in the temporary and in the permanent provision in such a manner as to forbid the belief that the provision for the children should be absolute, and that of the widow contingent. This is not an inference only, for when he comes to the permanent provision for his widow out of the proceeds of the real estate, he says in express words: “ The one-third portion thereof shall be paid absolutely by my said executor (the trustee) to my said wife Eliza, in lieu of the previous specific provisions for her maintenance.” Thus if the temporary provision were absolute and not contingent, of which there can be no doubt, for it was to take effect immediately on the testator’s death, the permanent provision could not be less absolute, for it was to be in lieu of the former, which was for the express purpose of maintenance, a purpose clearly not intended to be contingent. Another indication of the testator’s intent to make the permanent provision for his widow absolute, is the fact, that though he deprecated her marriage as likely to interfere with her attention to the care and education of his children, yet he made this provision expressly for her marriage; and not conditional or dependent merely, for she was to have the provision at all events on Frank’s arrival at age. Thus marriage was only to precipitate a bequest concededly absolute in her on the arrival of Frank of age, if she then continued a widow. Besides, if the bequest were purely contingent on marriage, it would be an inducement to her to marry speedily, a motive the testator clearly did not intend to hold out to his widow. There is still stronger reason to show that the provision for Mrs. Barker wras not contingent. As we have seen, the testator did not intend to die intestate of anyportion of his estate, a result certain to take place if the provision for her is contingent. In the paragraph of the will making distribution among the children, the testator directs his executor, as trustee, to sell his personal property, and convert it into money, to which fund all other moneys (enumerating various sources) together (ha proceeds to say) with the portions of my said children derived from the sale of my real estate as hereinafter determined under the provisions of this my will, shall be added, and the aggregate shall be a fund of final distribution,” which he then proceeds to make among his children. These portions of the real estate, it will be seen in the next paragraph are but two-thirds and not the whole oi the proceeds of the real estate.

Coming to the next paragraph, he proceeds to direct the sale of all his real and personal estate, whenever his wife marries or one of his children arrives of age; and the money, he proceeds to say, “ shall become a like final distribution fund as hereinbefore set forth, and that of the remaining proceeds and accumulations of real estate devised to my said executor in trust, sold and to be sold, the one-third portion thereof shall be paid absolutely by my executor to my said wife Eliza, in lieu of the previous specific provisions for her maintenance, and the two-thirds portion of the residue shall go to my children as hereinbefore provided.” These are the “ two-thirds portion” which in the preceding paragraph he had added to the personal estate, and formed into a final distribution fund, divided among his children. The consequence therefore is, that the one-third of the proceeds of the real estate allotted to his wife is wholly undisposed of, if not vested; for there is no provision or bequest over of this third, upon the supposed contingency not happening. If therefore Mrs. Barker died unmarried and before the arrival of Frank at age, the testator has made no disposition of this third. But this is contrary to the declared intention of the testator, to dispose of all of his estate, and to give the one-third of the real estate absolutely to his wife in lieu of the temporary provision for maintenance, and the specific bequest of- two-thirds only of the real estate to the children. In this connection we may notice also, that the will contains no other residuary clause than that already mentioned, and of which the bequest to the widow is itself a part. Upon the whole will, we cannot doubt that the permanent provision for Mrs. Barker vested at the testator’s death, but was delayed in the time of the enjoyment until her marriage or the arrival of Frank at majority. /

Decree affirmed with costs to be paid by the appellants.


text:
    Barker et al. versus Dinsmore.
    1. A man representing himself connected with Barker & Co. contracted with Dinsmore for wool for them : to be consigned to them to Pittsburg and paid for there. The man representing to Barker & Co. that he was Dins-more’s son, contracted to sell them wool; it arrived at Pittsburg before Dinsmore; was delivered to the man, and by him to Barker & Co., who paid him. The jury found that the sale was not to the man on his own responsibility, but as agent for Barker & Co. Held, that the ownership of Dinsmore was not divested.
    2. Sale of goods tortiously obtained without the owner’s consent, gives the purchaser no title against the owner, although purchased for a fair consideration and in the usual course of trade, without any suspicious circumstance to awaken inquiry.
    3. An owner cannot be divested of his property without his consent, unless he has placed it in the custody of another and given him an apparent right to dispose of it.
    November —1872.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 188, to October and November Term 1871.
    This was an action of replevin brought December 6th 1869, by John Dinsmore against William Barker, Jr., and Jesse B. Kilgore, trading as William Barker, Jr., & Co., for 45 sacks of wool, containing 7632J pounds, of the value $3816.25.
    The defendants gave a claim-property bond and retained the goods.
    The cause was tried October 18th 1870, before Hampton, P. J.
    The plaintiff resided nearBurgettstown, Washington coupty, being also near Dinsmore Station, on the Pan Handle Road. In November 1869, he owned the wool in question. On a Friday in the latter end of that month, a man saying his name was Barker, and representing himself as a cousin of William Barker, Jr., of the •firm of William Barker, Jr. & Co., who were wool merchants in Pittsburg, came to plaintiff’s house and asked if he had wool for sale. Being informed that he had, the man said he would return on the next Monday, which he did, and agreed, after some negotiation, to purchase from the plaintiff 6000 pounds of wool, more or less. He produced to the plaintiff the business card of defendants, viz. :
    WILLIAM BARKER, JR. & CO.,
    (late william barker),
    DEALERS IN DOMESTIC WOOLS,
    No. 72 Smithfield Street,
    PITTSBURG, PA.

      (On which he endorsed:)
    “ November 30th. Bought of John Dinsmore 6000 pounds of wool, more or less, for 50 cents per pound, delivered in the city of Pittsburg. Wm. Barker & Co.,
    No. 72 Smithfield street.”
    At this time he brought with him 43 wool-sacks, marked “Wm. Barker, Jr., & Co., Pittsburg, Pa.”
    On inquiry by the plaintiff how he should be paid, the man told him he could come into Pittsburg on Saturday and get his money.
    On the day after this transaction, the plaintiff received a note as follows:—
    “ Stuebenville, Nov. the 31st.
    “ Mr. Dinsmore — Sir: Haveing to go to the above place last eve on busyness, I thought that I would drop you a note as I pass your place; the agent at Pitt, thinks it will be the third day before the wool can be unloaded, and perhaps it would be safer for you to come on Monday for fear you should not get home Saturday. You spoke of writing, but you need not trouble yourself writing, as the agent will forward the Bill to us immediately.
    Yours, . ' Barker & Co.,
    Pittsburg.”
    The bill of lading was:—
    “ Pittsburg, Cincinnati and St. Louis Railway Co.,
    Dinsmore, Dec. 3d 1869.
    “ Received from John Dinsmore, the following packages, in apparent good order, marked as per margin, which the Pittsburg, Cincinnati and St. Louis Railway Co., agree to deliver, in like order, the incidental damages of the railroad, fire in cars and at stations excepted, to Barker Go., or order, at the company’s freight station at Pittsburg, he or they paying freight and charges (at the rate established as per company’s tariff sheet), as it arrives in the cars. The company will not be responsible for leakage of molasses, when caused by fermentation, nor for leakage of any kind, nor for loss or damage arising from the incidental dangers of railroad transportation, unless the same be proved to have occurred by the gross negligence of their agents or servants.

      Marks. Articles.

    Wm. Barker, Jr., & Co. 45 sacks Wool, 7789 lbs.
    J. D. Allinder, Agent."

    By arrangement with the man, the plaintiff shipped the wool in his own name, consigned to defendants, and directed the agent at Dinsmore Station to ship the wool just as the sacks were marked.

      The plaintiff had all the wool shipped by Saturday afternoon, and came into Pittsburg on Monday. He went to Barker & Co.’s wareroom and inquired if Dinsmore’s wool had come to hand; he was informed that they had bought a lot of wool on Saturday from a man calling himself Martin Dinsmore, who said it was his father’s wool, and they had paid him for it on that day at 40 cents ; defendants informed plaintiff that the man said his father had sold his farm and wished to sell his wool; they said the young man had produced samples, and they had given sacks to him. Plaintiff held the bill of lading as security till he should come to Pittsburg.
    The agent at Dinsmore’s Station shipped the wool to Barker & Co., Pittsburg. After the wool was unloaded it was delivered by the railroad agent to the man, and by him to Barker & Co.’s dray-man, who gave a receipt, viz.: ,
    “ December 4th 1869. — Received of the P. C. & St. L. Rw. Co., in good order, for Barker & Co., 45 bales of wool.
    “Freight, $28.52. T. X O’Brien.”
    The railway company gave notice to Barker & Co. on Saturday morning of the arrival of the wool.
    The foregoing, with much more to the same points, was the evidence of the plaintiff.
    The defendant’s evidence was that on the 29th of November 1869 a man calling himself Martin Dinsmore came to their store with samples of wool, which he said he had out at home, five miles back of Burgettstown, Washington county; they agreed to purchase of him at 45 cents per pound, if the wool was equal to the samples. He asked them to send sacks by the Pan Handle Railroad, and he would be at the station and meet them; he directed them to be marked “ Martin Dinsmore, Burgettstown Station.” On Saturday he came with O’Brien, the drayman, with a load of wool; after examining the wool, the defendants expressed dissatisfaction with its quality, but they finally arranged to take it at 40 cents per pound, and paid him $3050 in cash for 7625 pounds; he left about 3-ijr o’clock on Saturday afternoon. On Monday about 10 o’clock the plaintiff came to defendants’ store, and asking for Mr. Barker, was referred to that member of the firm ; plaintiff said he was not the Barker who had been to his place and bought the wool, and who said he was a cousin of William Barker, who was lying sick of typhoid fever, and had heard plaintiff had a lot of wool, and plaintiff had sold it(to him for 50 cents per pound.
    The defendants gave other evidence, which in some of its details was contradictory of plaintiff’s evidence.
    The following were plaintiff’s points and their answers-:—
    1. If the jury believe, from the evidence, that the plaintiff agreed with a party, representing himself to be a member of the firm of Wm. Barker, Jr., & Co., to sell his wool to said firm, and said representation was false and fraudulent, and made without the knowledge or authority of said firm, no title to the wool passed to said William Barker, Jr., & Co.
    Answer: “ This point is affirmed.”
    4. Even if the man calling himself Martin Dinsmore did not represent to the defendants, or either of them, that he was the son of John Dinsmore, and the wool was his father’s, but claimed to be the owner of the wool himself, and the railway company delivered the wool to the drayman, T. O’Brien, as the agent of the pretended Martin Dinsmore, or to the man Martin Dinsmore himself, his possession of the wool thus acquired being without right or color of right, he could not vest a title in the defendants by a sale to them.
    Answer: “ As we have said in our general charge, if this pretended Martin Dinsmore, or Barker, acquired no title to this avooI by his alleged purchase from the plaintiff, he could convey no title to the defendants, no matter how he obtained the possession from the railroad company, it could give him no title, because it had no title to convey.”
    The following are points of the defendants and their answers:—
    2. If the jury find, from the evidence, that the plaintiff, John Dinsmore, sold the wool in controversy to a person represented by the name of “Barker” or “Dinsmore,” and delivered the wool according to and in pursuance of the terms of the contract of sale, the property vested in the purchaser in so far as to enable him to make a good and valid sale of the wool to any bonfi fide purchaser, who had no notice or knowledge of the fraud practised by him.
    Answer: “ This point is sufficiently answered in the general charge.”
    3. If the plaintiff sold the avooI in controversy to Martin Dins-more, alias Barker, believing him to be a member of the firm of Wm. Barker, Jr., & Co.,defendants, and in pursuance of the contract of sale delivered the wool at Dinsmore station to be delivered by the railroad to Barker & Co., and the avooI was delivered to Dinsmore, alias Barker, at Pittsburg, and he sold it to the defendants at a fair market price, without knoAvledge or notice of the alleged fraud, they have a good title to the avooI, and the plaintiff cannot recover.
    Answer: “ The court decline to affirm this point in the terms in which it is stated, but refer to our general charge.”
    4. If, from all the evidence in the case, the jury believe that the defendants purchased the wool in controversy from Martin Dins-more, alias Barker, after he had received it from the railroad company, at a fair market price, without knoAvledge or notice of any fraudulent acts or pretences, they have a good title to the wool, and the plaintiff cannot recover.

      Answer: “ This point is refused in the shape it is presented. If he (Martin Dinsmore) acquired no title to this wool by his alleged purchase from John Dinsmore, he could convey none to the defendants. See our general charge.”
    5. This action of replevin cannot be maintained by the plaintiff against the defendants if the jury find from the testimony that the defendants are bond, fide purchasers from plaintiff’s vendee, for a valuable consideration, in the usual course of trade, and without notice of the alleged fraud by which said vendee obtained the delivery and possession of the wool from plaintiff.
    6. If the jury find, from the evidence, that the man from whom defendants purchased the wool obtained possession of it writh the consent of plaintiff, and with the intention, on plaintiff’s part, to change the property, and that defendants purchased it from said first-named party for a valuable consideration, without notice of frudulent intentions or misrepresentations on his part, they are bond, fide purchasers, and entitled to the property as against plaintiff, and the verdict of the jury should be in favor of the defendants.
    7. If the jury find, from the evidence, that the man representing himself to be Martin Dinsmore obtained possession of the wool in controversy from plaintiff, with his consent, and with the intention on his (plaintiff’s) part to change the -property, under a contract by which plaintiff sold said wool to the said Martin Dinsmore at fifty cents per pound, to be delivered in Pittsburg, and to be paid for by said vendee after delivery, the plaintiff paying freight thereon from Dinsmore's station, Washington county, to Pittsburg, and that said vendee, under said contract, received the wool at Pitts-burg, and there sold and delivered the same to defendants for a fair and valuable consideration, paid in cash on delivery, without notice of any fraud or misrepresentation in the premises, then defendants thereby acquired a good title to the wool, and the jury should find for them.
    Answer: “ These points are sufficiently answered in the general charge, where we have said substantially, that if Martin Dinsmore, alias Barker, acquired title to this wool by his alleged purchase from plaintiff, he could convey that title to the defendants; but if he did not, then he had no title to convey to them, and the plaintiff would be entitled to recover.”
    The court amongst other things charged :—
    “ * * * [The plaintiff, as we have stated, took the bill of lading in his own name, as consignor, with the name of the defendants’ firm as consignees. Thus far, at least, it would seem the title to this wool, as well as the right of possession, remained in the plaintiff, and he might, at any time, have stopped it in transitu, before it reached this city, and down to the time it was delivered to the defendants. There is no evidence going to show that the plaintiff ever delivered this wool to this pretended partner, or in any way placed it under his control. That party had nothing to do with the shipping the wool, nor had he any right whatever to touch it, if he was not a member or agent of the firm of William Barker, Jr., & Co., and it is clear from the testimony of the defendants that he was neither. Whatever control, therefore, he undertook to exercise over it, for his own individual interest, was done without the slightest authority from the plaintiff]

      “ A great deal of evidence has been given as to the way this wool was received from the railroad company, and delivered to the defendants, but it is not deemed necessary to state it in detail. Prom the undisputed evidence in the cause, it is manifest that a gross fraud has been perpetrated by this stranger, and the question now to be determined is, on whom shall the loss fall — on the plaintiff, or defendants ? This is a mixed question of law and fact — the former is for the court to determine, the latter is for the jury.

      “ [Let us consider, for a few moments, what induced Dinsmore, the plaintiff, to make the alleged sale of his wool, and ship it to Pittsburg. Did he intend ,to sell it to this stranger, as an individual, on his own responsibility, without reference to his connection with the firm of William Barker, Jr. & Co., or was it his understanding, from all the attending circumstances, that he was dealing with a member, or agent of the firm ? If he had known the fact that this man was not authorized by the defendants, to purchase this wool for them, would he have shipped it to Pittsburg, and run the risk of getting his pay from the defendants ?]
    “ Now, if you believe, from the evidence in the cause, that this young man, calling himself ‘ Barker,’ was not a member of the defendants’ firm, nor their agent, and that he falsely represented himself to the plaintiff as a member of that firm, or their agent, and authorized to buy wool for them, and at the same time produced a number of sacks, exhibited them to him, and that they had been given to him by the defendants, bearing the name of the firm thereon — and by reason of such fraudulent representations and conduct, he induced the plaintiff to part with the actual possession of his wool, and deliver it to the railroad company, to be carried to Pittsburg, to be delivered to the firm of William Barker, Jr., & Co., no title to this wool passed, either to the said pretended ‘ Barker,’ nor to the firm of William Barker, Jr., & Co., the consignees in the bill of landing, and if the plaintiff did not part with his title, this pretended purchaser acquired no title, and consequently could convey no title to these defendants.
    “ The law on this subject is too well settled to need the citation of many authorities. No man can be deprived of his title to personal property by fraud. * * *
    “ [These authorities show conclusively that if this pretended ‘ Barker ’ had no title to this wool, he could, and did, pass no title to the defendants, by his sale to them. You will apply the law as we have now stated it, to the evidence in this case, and if you find that this pretended Barker, in the transaction with the plaintiff, John Dinsmore, acquired no title for himself, individually, he could convey no title to the defendants, and your verdict will be for the plaintiff. But if you find from the evidence, that Dins-more sold the wool to this Barker, as an individual, on his own responsibility, without reference to the fact of his being either a partner with the defendants, or their agent; and if that was the intention of the parties at the time, then the plaintiff will not be entitled to recover, and your verdict will be for the defendants.]”* *
    The verdict was for the plaintiff for $3121.71.
    The defendants took out a writ of error.
    They assigned for error the answers to the points, and the parts of the charge included in brackets.

      A. M. Brown and T. M. Marshall, for the plaintiffs in error.—
    The plaintiff intended to change the title by a sale to a person, supposing him to be a member of the firm, and thus enabled him to impose upon the firm, and he must bear the the loss: Parker v. Patrick, 5 T. R. 175; Mowry v. Walsh, 8 Conn. 243; Root v. French, 13 Wendell 572; Smith v. Smith, 9 Harris 367.
    A bond fide purchaser of a chattel, for a valuable consideration, in the usual course of trade, and without notice, from a fraudulent vendee, takes a title clear of the fraud, whether it be actual or legal: Sinclair v. Healy, 4 Wright 417; Mackinley v. McGregor, 3 Wharton 369; Thompson v. Lee, 3 W. & S. 479; Harris v. Smith, 3 S. & R. 20; Robinson v. Dauchy, 3 Barbour 20; Buffington v. Gerrish, 15 Mass. 156; Morris on Replevin (2d ed.) 88, 191.

      M. W. Acheson (with whom was IF. B. Rodgers), for the defendant in error.
    — No man can be divested of his property without his own consent; and, even the honest purchaser under a defective title cannot hold against the true proprietor: Saltus v. Everett, 20 Wendell 267; Wilkinson v. King, 2 Camp. 335; Loeschman v. Mackin, 2 Stark. R. 512; McMahon v. Sloan, 2 Jones 229; Kingsford v. Merry, 1 Hurlstone & Norman 503; Decan v. Shipper, 11 Casey 239.
    May 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

— The verdict of the jury establishes the fact that the plaintiff below did not sell the wool to the defendants’ vendor, as an individual, on his own responsibility, but as a member or agent of the defendants’ firm, and upon their credit. Nor was the wool delivered to him by the plaintiff. It was delivered to the railroad company, to be carried to Pittsburg, and there delivered to defendants, to whom it was consigned by the plaintiff. Under the contract of shipment the company had no right to deliver the wool to any person except the consignees; and their delivery of it to the defendants’ vendor vested in him no property or right of possession as against the plaintiff. The principle which underlies this case, and by which the rights of the parties are to be determined, is this: The sale of goods by one who has tortiously obtained their possession without the owner’s consent, vests in the purchaser no title to them as against the owner. As a general rule no man can be divested of his property without his own consent and voluntary act. It is true that there are exceptions to the rule, as clearly defined and as well settled as the rule itself, but this case' does not come within any of them. Here the defendants’ vendor, as we have seen, acquired no right or title to the wool under his contract with the plaintiff, and he did not obtain from him its actual possession. The railroad company had no authority, as the plaintiff’s agent, to deliver the wool to him, and their delivery gave him no right or title to it whatever. Nor had he any apparent or implied authority from the plaintiff to sell or dispose of it. It is clear, then, that he could convey no title by its sale; and if so, the defendants could acquire no title by its purchase, though they purchased it for a fair and valuable consideration, in the usual course of trade, without notice of the plaintiff’s ownership, or of any suspicious circumstances calculated to awaken inquiry or put them on their guard. The case is a hard one in any aspect of it. One of two innocent parties must suffer by the fraud and knavery of a swindler, who had no authority to act for either. But the law is well settled that the owner cannot be divested of his property without his own consent, unless he has placed it in the possession or custody of another and given him an apparent or implied right to dispose of it. The case was tried on this principle, and as there is no error apparent in the record, the judgment must be affirmed.

Judgment affirmed.


author: Sharswood, J.

text:
    Stephens et al. versus Rinehart et al.

    1. L. made deeds to several children and gave them to M. to he recorded after his death and handed to the grantees. Held, the delivery by relation took effect when they were given to M.
    2. Ño declarations of L. after the delivery to M., except such as would countermand the delivery to the grantees, would be evidence.
    3. When the future delivery is dependent upon a condition the deed is an escrow; when to await the lapse of time or a contingency, it is the grantor’s deed presently, but will not take effect till the second delivery, but then by relation to the first.

      4. An escrow operates only from the performance of the condition and actual delivery to the grantee, except where a relation to the first delivery is necessary to give effect to the deed or intermediate conveyance of the grantee.
    5. Huss v. Morris, 13 P. F. Smith 367, adopted.
    November 18th 1872.
    Before Thompson, O. J., Read, Agnew, Shabswood and Williams, JJ.
    Error to the Court of Common Pleas of Gfreene county: of October and November Term 1871, No. 220.
    This was an action of ejectment brought March 17th 1866, by Eleanor A. Rinehart and others, against Barzilla Stephens and others, for the undivided fifth part of 600 acres of.land.
    .The land had been the property of Andrew Lantz, Sr., deceased, under whom both parties claimed; the plaintiffs were the heirs of Andrew Lantz, Jr., deceased, a son of Andrew Lantz, Sr.
    The cause was tried, September 6th 1871, before Gilmore, P. J.
    The plaintiffs offered in evidence a deed, dated June 26th 1853, between Andrew Lantz, Sr., of the first part, and the heirs of his son, Andrew Lantz, Jr., of the other part. By this deed,' “ for the natural love and affection he hath for said heirs as well as for ” one dollar, the grantor conveyed “ to the said party of the second part and to their heirs and assigns ” three tracts of land, containing about 430 acres.
    This offer was objected to, because the deed was to the heirs of a living man, and because there appears on the face of the paper an erasure and insertion, viz.: “ Son, Andrew Lantz.”

    The plaintiffs then called Joseph L.- McConnell, a subscribing witness, who testified that he had filled up the deed, it being a printed form; that he made the erasure, and wrote the words “ Son, Andrew Lantz;” the grantor had intended to convey the land to John Lantz’s son; witness proceeded to fill the blank with that understanding, and before the execution, grantor determined to give the land to*his son Andrew’s children; in consequence the witness made the erasure and insertion.
    The court admitted the deed, and sealed a bill of exceptions.
    The plaintiffs then gave in evidence deed of same date, from Andrew Lantz, Sr., of the first part, and “ the heirs of Andrew Lantz, Jr.,” of the part second by which the grantor, “for the natural love and affection he hath for his grandchildren,” as well as for one dollar, &c., granted other land “unto the party of the second part,” &c. The land for which this suit is brought is that comprised in the first deed.
    McConnell testified that he wrote both deeds; that the grantor wanted the land conveyed to his son Andrew’s children; he mentioned their names; he gave witness the same instructions for filling both deeds; he wished to convey the land to his “ grandchildren, born and yet to be born.” He was sure there would be other children, and wanted them all equal. His first wife was dead; he was then intending to be married again, and wanted this arrangement made first; his intended wife knew of the arrangement ; a number of deeds were drawn; he was satisfied if made to “the heirs” of Andrew, it would pass the land to his children born and to be born, equally; that was what he particularly desired; the word “ heirs ” was used in accordance with his instructions.
    After the deeds were drawn the old man took them and after-wards acknowledged them, put them into a box, wanted witness to take charge of them; he left them in the care of Glen. Lazear; there were other deeds to other descendants in the box'; he after-wards got the box, and destroyed some of the deeds. He told witness to see that after his death the proper persons got the deeds; that Andrew’s children got theirs; to see that the deeds were recorded, as some of the children were young. Witness had the deeds recorded; informed the persons to whom the conveyances were made, and after the recording handed them to the proper persons; Andrew Lantz, Jr., was then in possession of the land conveyed to his grandchildren. Old Mr. Lantz died in March 1858.
    On cross-examination witness said, the old man wanted to make the deeds legal, so that they would stand, and that the children, and those to be born, should not be cheated out of their share; he said his object was to convey to his grandchildren by his son Andrew.
    The defendants gave evidence that shortly before his death, Andrew Lantz, Sr., said that Henry Lantz, Andrew Lantz and McConnell had tried to cheat the other heirs “ out of his intentions,” that he had tried to get his deeds from them and they would not give them up. He afterwards said he made deeds to all his children, and they would all be about equal.
    During the trial the following offers of evidence were made by the defendants, objected to by the plaintiffs, overruled, and several bills of exceptions sealed to the rulings of the court on them.
    1. To prove that at a meeting of the family, at which the old man, John, Andrew, Henry, Jacob, Rose, Barzilla Stephens and J. L. McConnell were present, and which occurred only a few months before his death, and long after the time at which McConnell testifies a portion of the deeds had been taken from the box and destroyed, the old man declared that it was then, and had always been, his intention that all his property, real and personal, should be equally divided among all his children; that he said to J. L. McConnell, “ I will depend on you to see that this is done after my death,” and that McConnell promised him that he would see to it.
    This for the purpose of proving the fraudulent purpose of defeating the old man’s intention, and of cheating the other heirs out of their respective parts of the estate of Andrew Lantz, and also for the purpose of contradicting the testimony of J. L. McConnell.
    Answer: “We sustain the objections, but will allow evidence to contradict and invalidate the evidence ofeMcConnell.”
    2. To prove that the old man, some time after the meeting referred to in the foregoing offer, discovered that Andrew, Henry and McConnell were acting in concert and fraudulently, and that he declared that they had got his deeds from him; that he had tried to get them back from them, but they would not give them up to him; that he was then so old and feeble that he could not help himself, and that he wanted the other heirs, after his death, to get their shares by the law.
    This is offered for the purpose of proving the fraudulent combination to defeat the intention of Andrew Lantz, Sr., of establishing a fraud, and proving that he, the said Andrew Lantz, was held in such duress as would defeat his intention, and also for the purpose of disproving the delivery of the deeds.
    Answer: “We reject the evidence, except so far as it may go to prove that the old man countermanded the delivery of the deeds to these plaintiffs; except for this purpose alone the evidence is incompetent.”
    3. To prove that Henry Lantz, after the date of the deeds and before the death of the old man declared that he and Andrew and McConnell had combined together, and had got the control of the old man and the possession of his papers; also offered to prove that Andrew made similar declarations to be followed by proof of acts of McConnell, in furtherance of the fraudulent combination, and to be further followed by proof that the box containing the deeds was sometimes in the possession of McConnell, and sometimes in the possession of Henry and Andrew — this for the purpose of showing a fraudulent conspiracy to defeat the old man’s intentions, and to cheat the other children out of the property the old man intended them to have. Also for the purpose of disproving the delivery of the deeds, and contradicting the testimony of J. L. McConnell.
    Answer: “We reject all evidence of the declarations of either Henry or Andrew Lantz, as also the declarations of Jos. L. McConnell, for the reason that he was not questioned to this matter when on the stand, but we will admit evidence that the box containing these deeds was sometimes in the possession of Henry or Andrew.”
    4. To prove by John Cowell: That he saw the box in the possession of Henry Lantz, and at the time he declared the box contained his father’s deeds, which he had made to his children; to be followed by proof that he (Henry Lantz) said he was at his father’s one day, watched his opportunity, slipped the box, and carried it off under his coat. This for the purpose of proving his part in the combination to defeat his (Andrew Lantz’s) intention, and for the purpose of disproving any legal delivery of the deeds.
    Answer: “We do not see any sufficient evidence of combination to authorize the declarations of Henry Lantz to be given in evidence. The evidence is therefore refused.”
    The plaintiffs’ second point and its answer were:—
    From the deeds themselves and from the testimony of Joseph McConnell, the jury may find that Andrew Lantz, Sr., instructed the said J. L. McConnell to describe the grantees in the deed for the land in dispute exactly as in the other deed, and that the words “for his grandchildren ” were left out of the deed conveying the land in dispute, by the accident or mistake of the said McConnell when he drew the deed, or by accident or mistake; and if they so find the facts, then the deed is a sufficient conveyance in law and equity to the plaintiffs.
    Answer : “We give you this instruction, which is simply this— If the word ‘ grandchildren ’ was omitted in the deed for any cause or reason, not inconsistent with the intent to give the land to his grandchildren, the expression or words in the deed inconsistent with this may be explained by satisfactory and clear evidence, such as will satisfy you beyond doubt.”
    The following are points of the defendants and their answers :—
    3. If Joseph L. McConnell be believed, the word heirs was not used in the clause which describes the grantees by mistake for some other word or words, but was deliberately selected by the grantor as the term by which he wished to designate or describe the grantees.
    Answer: “If the jury find that Mr. McConnell proved that the word heirs was inserted by the dictation and authority of Lantz, and if the jury believe that Lantz understood the legal effect of the word, and intended it to mean nothing more than what the word legally implied, then the words are to have in the deed its legal signification and no more, which render the deed void. But the jury believe the evidence of McConnell, and he proves to you satisfactorily that the grantor did not understand the legal effect of the word heirs, and he did desire and so instruct the scrivener, Mr. McConnell, to draw the deeds so as to make it effectual in giving the land to the children of Andrew Lantz, Jr., both to those who were then born and to those who might after-wards be born, and that the word heirs was used by mistake to make the deed an effectual grant so as to embrace the children in life as well as the after-born, it is such a mistake as may be corrected by undoubted satisfactory evidence, and if believed it would constitute a good grant to the grandchildren of the grantor, and if it was a mistake in not inserting the words ‘ grandchildren ’ so as to give the proper effect to the deed, it may now be corrected.”

      4. The consideration of “ natural love and affection for his grandchildren ” is not inconsistent with, or repugnant to, the grant to “the heirs (in its legal sense) of his son Andrew.” A grant to “ the heirs of his son Andrew for a consideration moving from his grandchildren ” would be good if there were no other legal difficulties in the way.
    Answer: “ The consideration of natural love and affection for his grandchildren, is some evidence on the face of the deed, that he intended the grant for his grandchildren, and is repugnant to the idea that the grant was to be void.”
    5. If the grantor directed the scrivener to describe the grantees as “ the heirs of his son Andrew ” after discussion between them of the fitness of the word “heirs” to answer the end intended, and after other plans for drawing the deeds had been proposed and rejected, it cannot fairly be inferred that he used the word “ heirs ” in the sense of grandchildren, even if grandchildren was inserted for heirs in the consideration clause.
    Answer: “ This is a matter for argument to you, but if the grantor, directed the scrivener to use the words ‘ heirs of his son Andrew,’ and he believed that this was the expression and these the words which would embrace the after-born children, and this expression was used with this view instead of ‘grandchildren,’ it would not now prevent us from reforming the deed so as to meet the real intention of the grantor, if you are fully satisfied and have evidence on this point which leaves the matter without doubt, that he intended the grant for his grandchildren.”
    6. From inspection, it is apparent, that there was a material alteration in the deed under which the plaintiffs claim, and though McConnell testifies that it was done shortly after it was written, yet the jury may and it is their duty to consider the evidence that proves the alteration was made long after the deed was written, namely: that the alteration in the deed and in the endorsement, is not with the same pen and ink; that A. Lantz had the lines run dividing this tract from the other tract and from the testimony of Mr. and Mrs. Stephens and Abner Fordyce — that he had deeded this land to Andrew Lantz, son of John, and if the jury find that these alterations were made sometime after, that then there is no evidence that A. Lantz, Sr., ever gave instructions to McConnell to draw this deed to the “ grandchildren,” and if so, that the deed as it now stands is null and void.
    Answer .• “ We simply instruct you in answer to this point, that unless you believe the alteration was made as McConnell said it was made, the deed is void and plaintiffs cannot recover.”
    The verdict was for the plaintiffs.
    The defendants removed the record to the Supreme Court and assigned for error: the rulings of the court on the offers of evidence, and the answers to the foregoing points.

      JE. M. Sayres (with whom were Wyly $ Buehanan), for plaintiffs in error.
    — The deeds were not delivered: Stephens v. Huss, 4 P. F. Smith 20. A combination may be proved by the acts and declarations of the parties to it; liberality in proof is allowed: McDowell v. Rissell, 1 Wright 104; Stauffer v. Young, 3 Id. 455 ; Deakers v. Temple, 5 Id. 234. The conveyance to the “heirs,” was void for uncertainty: Morris v. Stephens, 10 Wright 200.

      A. A. Purman, for defendants in error,
    cited Stephens v. Huss, 4 P. F. Smith 20. The transaction was completed by the delivery of the deeds to McConnell; the title then passed to the grantees and could not be affected by subsequent acts and declarations of the grantor: 4 Kent’s Com. 503, 505; Merrills v. Swift, 18 Conn. R. 257; Taw v. Bury, 2 Dyer 167 b; Alvoed and Lea’s Case, 2 Leon. 110; Butler and Baker’s Case, 3 Co. 26 b; Doe v. Knight, 5 Barn. & Cress. 671; Church v. Gilman, 15 Wendell 656; O’Kelly v. O’Kelly, 8 Metc. 436; Foster v. Mansfield, 3 Id. 412; Wheelwright v. Wheelwright, 2 Mass. 447; Hatch v. Hatch, 9 Id. 307; Read v. Robinson, 6 W. & S. 329; Thompson v. Leach, 2 Vent. 201; Ivory v. Burns, 6 P. F. Smith 300; Souverby v. Arden, 1 Johns Ch. R. 240: Shelton’s Case, Cro. El. 7; Pratt v. Holman, 16 Verm. 503; Lloyd v. Bennett, 8 C. & P. 124; Blight v. Schenck, 10 Barr 285.
    There must be evidence of a conspiracy before the acts or declarations of the alleged conspirators can be given in evidence, 1 Greenl. Ev. sec. 111. As to a conveyance to heirs, he cited: Morris v. Stephens, 10 Wright 200; Huss v. Morris, 13 P. F. Smith 367; 1 Id. 282; 4 Id. 20.
    January 6th 1873,
   The opinion of the court was delivered, by

Sharswood, J.

— That the delivery of the deed in controversy after the death of the grantor, took effect by relation to the first delivery, seems a point very well settled by the decided cases: Morris v. Stephens, 4 P. F. Smith 20. In Foster v. Mansfield, 3 Metcalf 414, C. J. Shaw said: “ Where the future delivery is to depend upon the payment of money or the performance of some other condition, it will be deemed an escrow. Where it is merely to await the lapse of time or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently. Still it will not take effect as a deed, until the second delivery; but when thus delivered it will take effect by relation from the first delivery.” He adds: “As the estate did not effectually pass till the second delivery, if that second delivery had been prevented, it would probably have been held that it was wholly inoperative.” In Belden v. Carter, 4 Day 66, A. having signed, sealed and acknowledged a deed conveying a tract of land to B., took up the deed in the absence of B., and said to C.: Take this deed, and keep it; if I never call for it, deliver it to B. after my death: if I call for it, deliver it up to me.” C. took the deed. A. died soon afterwards, having never called for it, and then C. delivered it over to B.: it was held that this was the deed of A. presently; that C. held it as trustee for B.: that the title became consummate in B. by the death of A., and that the deed took effect by relation from the time of the first delivery. To the same effect is Stewart v. Stewart, 5 Conn. 317, and the authorities which are cited in these cases fully sustain the rule laid down. If the object of Andrew Lantz, Sr., in making the deed here in question, was to prevent his intended second wife from obtaining by the marriage any dower in the land, it was necessary in order to secure that result, that the deed should take effect presently, so that if the first delivery had been expressly as an escrow, it would in order to effectuate the intention have been held to relate.

In Perkins, sect. 9, a case in the Year Books is referred to where a single woman made a deed, which she delivered to a third person as an escrow, to be delivered in case the grantor returned from Borne, and then the woman married, and afterwards the deed was delivered: it was decided that the estate passed at the time of the first delivery and the marital right of the husband never attached. So Chancellor Kent decided in Frost v. Beekman, 1 Johns. Ch. 288, that a deed delivered as an escrow is operative only from the time of the performance of the condition, and the actual delivery to the grantor, except in cases where a relation back to the first delivery is necessary to give effect to the deed or to the intermediate conveyances of the grantee. It follows that the delivery of the deed of Andrew Lantz, Sr., is to be considered as operative from its date, and the ruling of the learned judge which excluded evidence of the declarations of Andrew Lantz, Sr., except so far as they went to prove that before his death he had countermanded the delivery of the deed, was entirely correct. Nor can it be pretended that the declarations of Henry Lantz, Andrew Lantz, Jr., or J. L. McConnell, were competent without some previous evidence of a fraud perpetrated by them on Andrew Lantz, Sr., or of a conspiracy by them to perpetrate such a fraud, and of this there was none.

The answers of the learned judge below to the several points which are complained of in the remaining assignments of error, conform to the opinion and decision of this court when this case was here before: Huss v. Morris, 13 P. F. Smith 367.

Judgment affirmed.