text:
    McLellan’s Appeal.
    [No. 2.]
    1. By a decree of the Supreme Court, an assignee was held liable for a debt owing to thd assigned estate, because he had reconveyed land of the debtor, held as security for the debt, and found by auditors to be of sufficient value to pay it, without payment, whereby the debt was lost; and the court below was directed to ascertain the amount of the debt. On the hearing for this purpose in the court below, Held, that the assignee should not be allowed to show that by reason of a prior mortgage, of which he had been ignorant, the land was valueless as a security for the debt.
    2. The mortgage being of record, the assignee could have found it by reasonable diligence, and should have given it in evidence on the former hearing : the former decree was conclusive as to the value of the land.
    3. On the first hearing the auditors found that the land was worth §70,000; the mortgage was §25,000, and the debt to the estate was §22,000. Held, the land having been sold under the mortgage for §10,000, to the mortgagee who held other liens amounting to §300,000, that there was no presumption that §10,000 was its actual value.
    May 11th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and-Woodward, JJ.
    Appeal from the Court of Common Pleas of Franklin county: Of May Term 1875, No. 45.
    In the matter of the accounts of William McLellan, assignee for the benefit of the creditors of the Chambersburg Saving Fund Association.
    The facts and proceedings on these accounts appear in Ohambersburg Saving Fund Association’s Appeal, antea p. 203.
    Upon the return of the record from the Supreme Court in that case, the appellants petitioned the Court of Common Pleas to make a decree in conformity with the opinion of the Supreme Court, viz.: that the former decree of the Court of Common Pleas should be so modified as to charge the assignee with a sum equal to the residue of the debt due from Anspach to the association.
    To this petition, McLellan, the assignee, filed an answer, setting out that the unpaid indebtedness of Anspach to the association was not found by the opinion of the Supreme Court, that therefore an account should be stated to ascertain that indebtedness; that Anspach was not a party and was not heard in the former proceedings, and might claim to be heard in ascertaining his indebtedness, and that the amount should be .ascertained so as to conclude all parties. He prayed that an auditor be appointed “ to take testimony, find the facts, state an account, and report to the court the exact amount” which Anspach owes to the association and with which the assignee should be surcharged, the auditor to give notice to all parties in interest, &c.
    The association filed a replication to this answer, averring, amongst other things, that the amount of Anspach’s indebtedness to the association had been judicially ascertained, protesting against the appointment of an auditor, and praying the Court of Common Pleas to make a decree in accordance with the opinion of the Supreme Court. They afterwards filed an “ additional replication,” again averring that Anspach’s indebtedness had been judicially ascertained, and that the assignee had made that a part of his defence on the former hearings, &c., and was estopped, &c.
    The assignee afterwards filed a “Supplemental Answer,” setting out that the decree of the Supreme Court was based on the assumption, that the coal-land in Schuylkill county, conveyed by Anspach to Reed to secure his indebtedness to the association, was sufficient to have secured that indebtedness, and that by the negligence of the assignee the association was deprived of its protection. He averred that the land was worthless as a security, because Anspach, about a month before he had conveyed the land to Reed, had executed a mortgage to Levi Matson and Charles Baber, to secure the sum of $25,000, which covered all the interest of Anspach in the tract, that judgment was recovered in a scire facias on the mortgage for $26,791.66, and that the land was sold by the sheriff to the Commercial National Bank of Pennsylvania, who was then the holder of the mortgage, for $10,000. The answer further averred that the assignee had no knowledge of the mortgage until August 1st 1874, nor of the'proceedings thereon until August 3d; and that from the time of the association’s assignment, the land had not been of greater value than the mortgage.
    The answer contained other averments not important to notice.
    The prayer was for an auditor to ascertain and report the facts as to the matters averred.
    The association filed a replication to the supplemental answer, traversing many of its averments, and averring, amongst other things, that the Commercial National Bank had in 1865 recovered a judgment against Anspach, which was a lien on the land in Schuylkill county; that the bank had paid for the mortgage the full amount due on it; that Anspach had paid the interest on the mortgage regularly until it passed into the hands of the bank; and he had continued solvent up to 1866; that the bank had realized from their judgment above $150,000; that the bank had bought this property at sheriff’s sale on the 28th of June 1867, at a nominal sum, and on the 29th of May 1871, sold for $87,000 the land that had been conveyed by Anspach to the association, and they averred that the assignee had notice of the mortgage two years before filing his answer.
    The court (Rowe, P. J.) made the following decree:—
    “And now, to wit, August 10th 1874, it is ordered, that the decree of this court made upon the hearing of the exceptions to the supplemental report of the auditors, on the 10th day of October 1873, be so far modified as to surcharge the said William McLellan, assignee and accountant, with a sum equal to the residue of the debt due from Anspach to the Chambersburg Saving Fund, and that the residue of said decree be confirmed. And it is now referred to the former auditors, namely, Messrs. Douglas, McGowan and Bonebrake, to ascertain and report the residue of the debt due from said Anspach to the Chambersburg Saving Fund, at the time of the filing of the third account, with directions to take further testimony, if necessary, and make report,” &e., but refused to authorize the auditors to hear the matters embraced in the supplemental answer of the assignee.
    On the hearing before the auditors, the assignee made a number of offers of evidence to sustain the averments in his answers that the Schuylkill county land conveyed by Anspach was valueless as a security for Anspach’s indebtedness to the association.
    The offers were all rejected by the auditors as irrelevant to the questions committed to them by the court, and because they had no authority to make inquiry beyond those questions.
    The auditors found, and so reported, that the whole amount ($22,419.59) of the judgment against Anspach, with interest ($1505.72) from the 22d of April 1871, was unpaid on the 5th of June 1872, and that the assignee was liable on that account for $23,924.32. They also found that he was liable, as part of the indebtedness of Anspach, for a note for $2500, given by Anspach for stock in the association, with interest from April 4th 1862 to June 5th 1872, $1525 — making this item $4025.
    They reported that the whole amount for which the assignee was liable on account of Anspach’s debt was $27,949.30.
    Exceptions were filed by the assignee to the report. A number of them related to the rejection of his offers of evidence; others as to charging him with amount of Anspach’s judgment and stock-note and interest.
    The court (Rowe, P. J.) overruled the exceptions, which alleged error in rejecting his offers of evidence and those charging him with the amount of the judgment against Anspach with interest; and sustained the exception which alleged error in charging him with Anspach’s stock-note and interest.
    The court decreed that the balance in the hands of the assignee was $28,724.37.
    The assignee appealed to the Supreme Court, and assigned for error the overruling of the exceptions as to offers of evidence and decreeing that there was a balance of $28,724.37 in his hands.

      J. McT). Sharpe and A. K. McQlure, for appellant.

      R. Gfehr and W. Mao Veagh (with whom was Gr. W. Brewer), for appellees.
   Mr. Justice Mercur

delivered the opinion of the court, May 31st 1875.

When this case was before us last year, we reviewed the facts and carefully considered the conclusions of the auditors. The value of the lands, as well as the liability of the appellant to account therefor, had been distinctly -put in issue before the auditors. They had heard all the testimony offered by either party, bearing on both these questions. They had found as a fact “that the lands were of the value of $70,000 and upwards, and were sufficiently valuable to have paid, if sold, the whole indebtedness of Anspach then due to the appellees.” We approved and affirmed this finding. We held that the appellant was guilty of supine negligence in permitting lands of that value to be taken from him under the facts as established. The actual loss, however, that the present appellees had thereby sustained was much less than the value of the lands. That loss was the amount only due them from Anspach. That sum was the measure of their damages. Inasmuch, however, as that precise sum did not distinctly appear, the case was sent back substantially with instructions to ascertain the same, and thereupon to enter a decree surcharging the present appellant in that sum.

It is now claimed that, conceding the lands to have been of the actual value of $70,000, yet owing to the existence of a prior mortgage of $25,000 on them, their practical value in the hands of the appellant was thereby lessened to that extent. There are several reasons why this alleged fact should not be inquired into now.

1. It existed long prior to the former hearing before the auditors. It was a matter of record. Reasonable diligence required that the appellant should have found it and have given it in evidence. As well might the appellees now ask to give additional evidence for the purpose of charging the appellant with the amount of the worthless builder’s mortgages, as for the appellant to open any question in regard to the land. The former decree as to its value must be held conclusive. There is great force and wisdom in the maxim, “ Nemo debet bis vexari, si constet curia quod sit pro uná et eddem causd.” Justice demands its application in this case.

2. If this prior mortgage of $25,000 existed, it still left a remaining value of $45,000 in the lands. That value exceeded by some $20,000 the sum due from Anspach, for which the appellant was chargeable; but

3. This mortgage was also a lien on other valuable coal-lands of Anspach. The mortgage-creditor could have been required first to resort to those lands, and they were probably of sufficient value to have satisfied the mortgage. It follows that the land which appellant voluntarily permitted to be lost to the appellees, notwithstanding all now alleged, were a valuable and reliable security for the full amount due from Anspach. The subsequent sheriff’s sale and purchase, for the nominal sum of $10,000, by one then holding all the liens on the land, and to an amount exceeding $300,000, creates no presumption of their actual value. Hence to have admitted the evidence offered by the appellant would have been not only beyond the present subject of inquiry, but could not have resulted in any benefit to the appellant.

The auditors were therefore entirely right in rejecting the evidence, and the learned judge was correct in the decree which the court made. It is affirmed.

Appeal dismissed at the costs of the appellant.

Mr. Justice Sharswood dissented.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Derr versus Greenawalt.
    1. A will was duly proved to have been executed in the presence of two witnesses with a blank left for the name of the residuary legatee. One witness swore that the name was inserted in the presence of the testator and by his direction. The person who inserted the name testified that he wrote it but could not recollect whether he did so by the direction of the testator or in his presence. This with subsequent declarations of the testator that the person named was his legatee and the fact that the will continued a long time afterwards in the possession of the testator: Held, insufficient to establish the residuary bequest.
    2. Proof of execution of a will must be by two witnesses each of whom ■must separately depose to all the facts necessary to complete the chain of evidence.
    3. Circumstantial proof cannot be made by two or more witnesses as to different parts of the aggregate circumstances going to make up the necessary sum of proof; the evidence of each must go to the whole.
    4. Hock v. Hock, 6 S. & K. 47, adopted.
    May 18th 1874.
    Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.

      Error to the Court of Common Pleas of Lebanon county: Of May Term 1874, No. 15.
    This was a feigned issue from the Begister’s Court, filed in the Court of Common Pleas December 15th 1871, in which William M. Derr, acting executor of L. T. Calvin Greenawalt, deceased, was [plaintiff,'and Lorenzo Greenawalt, Wilhelmina Greenawalt and Catharine Greenawalt, “some of the.heirs at law” of L. T. Calvin Greenawalt, deceased, were defendants.
    The particular issues directed to be tried were:—
    1. “ That the paper admitted to probate is not the last will and testament of the said L. T. Calvin Greenawalt.
    2. That at the time of the alleged execution of the paper, the said L. T. Calvin Greenawalt was of non-sane disposing mind, memory and understanding.
    3. That said paper was procured from him by fraud and coercion.
    4. That the said paper was procured by the exercise of an undue influence on the mind of the said L. T. Calvin Greenawalt.
    5. That the residuary clause, in said alleged will, by which the testator gives “ to his friend William M. Derr, his heirs and assigns for ever, all his estate, real, personal and mixed, not otherwise in said will disposed of, &c.,” was procured by fraud and undue influence exercised on the mind of the testator.
    6. The name of William M. Derr was interpolated in the residuary clause of said alleged last will and testament, which begins as follows: £ I give and devise unto my friend William M. Derr, his heirs and assigns for ever, all my estate, real, personal or mixed, not otherwise herein disposed of, &c.,’ after the name of the testator was affixed to said alleged will, and without authority from him.”
    The will was dated December 16th 1867.
    After directing the payment of his funeral expenses and debts, he gave to his mother all his estate of every kind for life; and after her death, to his aunt, Maria Greenawalt, for her life, authorizing his executors, if they deemed it advantageous, to sell his real estate, invest the proceeds, and pay the income to his aunt during her life. He gave to Catharine Camyer $200, to be paid to her on the death of his mother.'
    Then followed these clauses:—
    “ Item. I give and bequeath unto Grant Weidman, Esq., for professional services heretofore rendered to me, the sum of $50, to be paid unto him by my hereinafter-named executors as soon as practicable after the death of my mother.
    “ Item. I give and bequeath unto my friend and attorney William M. Derr, the sum of $500, to be [paid him as soon after the death of my mother as conveniently can be done.
    “Item. In case my right and title in and to the real estate herein disposed of should by any one be contested, I give and bequeath unto my hereinafter-named executors the sum of $1000 for the purpose of contesting and settling title, &c. * * *

    “ Item. I give and devise unto my friend William M. Derr, his heirs and assigns for ever, all my estate, real, personal or mixed, not otherwise herein disposed of, and all the rest, residue and remainder of my estate, remaining after the death of my mother and aunt Maria, to him, his heirs and assigns for ever, to be fully enjoyed by him, his heirs and assigns for ever, after the death of my mother and aunt Maria, subject to the legacies herein bequeathed. * * * '
    “ And lastly, I nominate, constitute and appoint my two friends, William M. Derr and David S. Haber, to be-the executors of this my last will and testament.

      “ In witness whereof, I, L. T. Calvin Greenawalt, the testator, have to this, my will, written on one sheet of paper, set my hand and seal, this 16th day of December, A. D. 1867.
    L. T. C. Greenawalt, [l. s.]

      “ Signed, sealed, published and declared by the above-named L. T. Calvin Greenawalt, as and for his last will and testament, in the presence of us, who have hereunto subscribed our names at his request, as witness thereto, in the presence of said testator and of each other.
    The will was executed, with a blank left for the name of the residuary legatee, which was afterwards inserted.
    The question raised and decided in the Supreme Court — there being no fraud or undue influence in the case — was whether the filling up of the blank was so proved as to make it part of the will.
    The cause was tried, January 8th 1872, before Pearson, P. J.
    Lydia Frantz testified that she witnessed the will at the testator’s request and in his presence. The will was not read then.
    Juliana Huber testified that she witnessed the will in the presence of the testator and at his request.
    On cross-examination she said: “ I wrote the date ‘ 16 December ;’ h-e was sick in bed at the time at his house. His mother was present; his mother told me to ask him whether he had signed his will; he said no; said wanted to change the clause to give Kitty Cammeyer more; I asked if all was in the will right that he wanted but Kitty; as to his mother, all right; told me to get the will, after he considered a little; said he would sign it; will was in his desk; he was in bed when he signed it; I supported him; he held the paper himself; I asked to make his mark; he l’eplied he thought he could write his name ; had been very sick; was then better; think Miss Frantz assisted me to hold him ; not certain; name of Wm. M. Derr was not in the will when I signed it; it was written in about two hours after by my son George; the blank was discovered thus: Greenawalt said, Take the will to Derr; tell him to put in what he wanted; that Mr. Derr knew what he wanted to have put in; I went to Mr. Derr’s office; told him what the other said; Derr opened the will; said everything was in it that Calvin wanted in, but if he wanted him to act as his attorney he must put his (Derr’s) name in; I told him to come along and have it fixed; Derr replied he would rather have nothing to do with it; I asked who’d put the name in; he replied any one could do it, who Greenawalt would direct, but he would rather have nothing to do with it; Calvin said, Tell Derr to put in what I wanted in; Derr knows what it was; I asked Derr where the name to go in; he pointed it out; I observed the blank place; Derr said, You go get. my name in and I will see him to-morrow; I told what Derr said; Derr said, If you (Calvin) want Derr to act as his attorney, must put his name there; Calvin asked me to put it in; I said better wait till my son comes, he will do it; this about 4 o’clock; my son came in soon and inserted the name; Greenawalt tried to point out the place to my son George to put it in; he too weak, and said, Your mother will show it; his mother was there; George was there, and I think Miss Frantz; not certain ; Calvin brought -the will to my house and read it over about three months before; he came to the blank; said going to put his mother’s relative (Zimmerman) name in; he took it away with him; after the will was executed, he asked me to take it home with me; I took it home; kept it from December till some time in March ; I took it back, gave it to his mother, and she put it in his desk; was found there after his death; he lived not quite four years after its execution; knew him from boyhood; he was a smart man; same blank was filled up that was spoke of as to be filled with name of his mother’s relative, with that of Mr. Derr; he often spoke of his will, but never read it to me; he always told me it was to go the Zimmermans; always after he signed the will spoke of it as though the Zimmermans were in ; always said his mother provided for ; Maria provided for, and should all go to the Zimmermans; Greenawalts should not have any of -it; never spoke of any one to take care of his mother and Maria; always swore at the Greenawalts; said they should have none of it; gave Derr $500 to fight it through; said gave Weidman a small amount; I asked why he gave it to Mr. Derr ; his mind was perfectly good when he signed the will; he was worse after; his mind as good then as any time I knew him; when I took it he said, Just take it to William Derr; he knows what I want; he wanted it in to make Mr. Derr his attorney; he said he thought that was all fixed, he was in attorney; Mr. Derr refused to put his name in, but said for him to get it put in; get Calvin to put my name in, and I will (come to see him to-morrow.”

      On cross-examination she said:—
    “ My son not there, but when George came in Calvin tried to point out the place ; said I am too weak, your mother will show you; George then wrote it in; George wrote it in but one place; he always said'the Zimmermans to get his property; said this after the will signed as well as before; his mother said to me, Ask him if he has signed his will; you will have more influence over him than any one else ; I probably had some influence; he often asked my advice; he was taken sick eight or ten days before; he had mania second day after the will was signed; he was not that I can say a confirmed drunkard; he got it from riot using his usual quantity of liquor; I asked him if everything was in right as he wanted ; he said to take it out to Derr; see if all right; he knew what he (Calvin) wanted ; Lineaweaver attended him as physician about the time he made his will; Dr. Mish was often in ; I had a judgment entered the day he had mania; he signed the bond day he did the will, and at the same time the name was inserted; done in presence of George, when he put that name in; I told George the purpose of the name going in; to go in as his attorney; I never gave a thought to how the name was in; know his name in as attorney only; said the Zimmermans were to go in and he to sign it; I told him the will of no account unless he sign it.”
    George Rise testified: “ This name is my writing; I cannot tell at whose instance I put it in; was done at Greenawalt’s or Derr’s office; I know I wrote it in; can’t say where or who present; if at Derr’s office, he present; if at Greenawalt’s house, he present; if at his house, my mother present; witnessed a bond; I was called on purpose to witness the bond; I never gave a thought to the other transaction; did to the bond; I stopped at Derr’s office I knew, and therefore confused in the matter about where the name was inserted; I knew nothing of the contents of the paper; I think I knew it a will, only know the name my writing; I think I knew was Calvin Greenawalt’s.”
    Lydia Frantz recalled, said: “ George Rise’s name mentioned, but I don’t know for what purpose; I don’t recollect of seeing him there. The will was executed about 4 o’clock; was there when the will was taken out; don’t know that I was when it was brought back ; Mrs. Huber took it away; she to take it to Derr’s; Calvin asked her to. Can’t recollect of seeing George, or her returning with the will. Can’t say if he was to sign the will or a judgment for Mrs. Huber i * * * He was a smart man. He was perfectly sane when he executed the will; knew what he was doing; perfectly sane. I was there three or four days before the will was made; a few days after will signed had mania. His liquor all measured out for him. He indulged for some years before; drank it habitually; I think Mrs. Huber took it out of the desk. He was too weak to read it; I refused at first to sign; said afraid to put my name to a paper; I did not know contents. His mother said was nothing but his will.”
    Cyrus Dorr testified: “ This will is in my writing; after written one blank near the end and another for the date; all my writing except ‘Mr. W. M. Derr,’ and ‘December 16th,’ — those words are not. Can’t tell when I wrote it; may be four; may be seven years. I copied it from a will prepared by father. I not a member of the bar then.”
    Lydia Huber recalled, said: “ This bond made up of an amount; he knew the items of the amount; knew all about it; signed at the same time the name was inserted in the will. This is the only will I ever witnessed for him.
    “Bond drawn by Mr. Gritinger; done same day it was signed. He owed me money and various things. * * * I calculated the amount; soon after the will signed he said, now to have the bond prepared and he would sign it; I went got it drawn. The family very poor, but for assistance; I and the neighbors assisted them. * * * Derr lived near one-fourth of a mile off; will was not in Derr’s office; except in my hands ; was not out of my sight.”
    Plaintiff then called Dr. W. C. J. Smith, who testified that the testator had spoken to him against his relatives in terms of great bitterness, and said they should never get a cent after his death.
    It was then proposed to prove by him:—
    “ That the testator frequently said to him and to other witnesses, since the date of the will, even as late as within a few weeks of his death, that he had his will prepared and ready in his possession, in which he had made full provision for the care of Maria Greenawalt during her life; to which Lydia Erantz and Juliana Huber were the subscribing witnesses; of which he had appointed William M. Derr and David S. Raber the executors; and by which he had made William M. Derr his residuary devisee and legatee, and that he requested and directed the witness and others to send for William M. Derr, as soon as he should be dead, to take charge of his estate and effects, so that the Greenawalt heirs could not get at his things. This testimony offered for the purpose of proving, confirming and identifying the instrument proved by Juliana Huber and Lydia Erantz and Geo. D. Rise, as the last will and testament of L. T. Calvin Greenawalt, deceased.”
    The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    Lydia Erantz, again called, Said: “I never signed any other will as a witness for Calvin Greenawalt; I do not recollect of seeing Geo. Rise at the house that evening; I never saw the will after; merely signed it. The will was not read in my presence to or by the testator.”
    The will was then offered in evidence, and objected to because not proved as a will, and because the fraudulent introduction of the name is equivalent to a forgery and destroys the whole instrument.
    By the court: “We consider the insertion of the name of Mr. Derr unauthorized in law; that is, that the authority to make it has not been legally established. Therefore that part of the will must be treated as though there was a blank for the residuary legatee, and consequently so much of the will as relates to the residue cannot go into effect. We are not prepared to decide, as a question of law, that the name was .inserted fraudulently. So far from it, Mrs. Huber proves that it was done exactly as directed by the testator; that Mr. Derr did not desire' the bequest. The only fact which shows that the testator misunderstood what was inserted, is the proof of Mrs. Huber, that he intended the Zimmermans were to have his estate after the death of his mother, and that William Derr was to be his attorney. This question as to whether the name was inserted fraudulently or not, must be decided by the jury.”
    The will was authorized to be read as it stood at the time of its execution, leaving out the name of Derr as residuary legatee. A bill of exceptions was sealed for each party.
    Will dated December 16th 1867, proved 31st of July 1871, was read.
    Grant Weidman testified: “Knew C. Greenawalt from childhood. I attended to his business from the time I was admitted to practice till his death. Always spoke of Mr. Derr being associated with him relating to the trial of titles under his grandfather’s will to the real estate which he then claimed; was before 1867. Derr took part in the beginning. I conducted it through; Derr a mere associate counsel. I was consulted by him generally; no other consulted except as to that particular point.”
    The plaintiff rested.
    The defendants gave evidence for the purpose of showing the testator’s want of capacity; that he had the consumption, had been sick for a long time ; that in 1867 had delirium tremens, which lasted several weeks. They also gave evidence tending to show that he had been habitually intemperate; that under advice of physicians he took stimulants, and when they were omitted, mania a potú was brought on.
    The evidence was, that except when the delirium was on him, his mind was sound and he was not easily imposed on. At the time Lydia Frantz was there he had incipient delirium. His undue use of liquor was from 1863 to 1869.
    Defendants gave evidence also that testator frequently sent to Mr. Derr for money, that Derr sent it to him, that Mr. Derr paid one of the witnesses to wait on him, that he often sent for Mr. Derr when Derr would not come. Mr. Derr was at his house but twice whilst witness was waiting on him. Witness heard all their conversation.
    There was evidence also that testator had said, about the time of his last sickness, that he had discovered that he had wronged his relations. He was sorry he had not discovered it before the death of his mother. She had died two years before him. Mr. Derr was not a relative of testator either by blood or marriage.
    The defendants gave much evidence of the same character as the foregoing for the purpose of showing incapacity in the testator.
    For the plaintiff in rebuttal: — ■
    Catharine Cammeyer testified: “ Calvin said he had a will written; said it three months before it was signed ; I was there the day it was signed; Mrs. Huber and Lydia Frantz there; George Rise there the same afternoon. There was a blank in the will, but I heard no directions about-it. Calvin took the will to Mrs. Huber. A couple of months after it was brought back; was put in the desk; I saw it in the desk several times; was with the other papers ; papers carefully kept; said the property should go to his mother’s friends after Maria’s death; this after the will was made. Know of no other will; this the only one. Did not say who executors; Lydia Frantz and Mrs. Huber witnesses. Don’t know if Lydia there when George Rise was; Calvin had no other desk; kept his papers alone in it; was in his bed-room. I not there when the will was signed.; she did not take the will away; I think Calvin took it down. He said so; always said the property was to go to the Zimmerman’s after Maria’s death; always said this; said it down to the time I left there. I heard him instruct Mrs. Huber to take the will out to Mr. Derr. This was the day it was signed.”
    Grant Weidman testified: “After Calvin’s death, Funck asked for Lorenzo to move in take care of Maria; considered it not advisable to let him in; Calvin Greenawalt also spoke about the property; said would be a contest under the will; offered me the property to fight the other family ; always advised him to drop the bitterness; we both said, if to be contested, better do it in his lifetime; some debts; the property not in good repair; his father’s old papers kept as if of value; I thought the desk had been disturbed ; found the will; think in a paper; Derr said would retire if no will; if one was written by him on -blue paper; he had no papers of value except in the desk.”
    Cyrus G. Derr testified : “ I remember he told father he wanted him to write a will; I cannot remember farther than this; he said he wanted to give father all his property; father said he did not want it; wanted nothing to do with it; I think it was certainly left blank in the paper from which I copied, and I left it so ; the summer prior to my going to Reading, I had a conversation with Calvin; lie said he was going to give father everything; and he must fight the Greenawalts; I said father would not take it so; I said if he wanted to fight them, should do it himself; more sympathy with him than with a stranger after his death; he said nothing about a will at that time, or having one; this must have been in 1870; I think in August.”
    Dr. C. D. Gloninger testified: “ Calvin often said would give me the property, if I would fight the Greenawalts; said it often; his mind was intent on that; said if I would not take it, he’d give it to my son called after me; boy six or seven years old; this said within the last two years.”
    The plaintiff gave evidence that in 1869 the testator said he had made a will and disposed of all his property; that Maria should be provided for; that Lydia Frantz and Julia Rise (Huber) were witnesses; that as soon as his eyes were closed, he wished Derr and Raber, his executors, to be sent for. The will was found in his desk amongst his papers; that Mr. Derr found it, and as soon as he saw it said, This is the will; that Mr. Derr was there but once during his last sickness; that testator said he had willed his things to Mr. Derr, after Maria’s death.
    The evidence on both sides was that the testator was a man of much intelligence; was very firm and not easily influenced; “ pretty positive; would not be led; not easy to impose on;” “if he had great confidence, would do whatever his friend wanted; at times would, at others not.”
    The following are points of the plaintiff and their answers:—
    8. “ If the jury believe from the evidence that the blank space in the residuary clause of the will was filled up by George D. Rise in the presence of Juliana Huber and the testator, and at the instance and request or by the authority of the testator, such insertion must be regarded by them as a portion of the same transaction at the execution of the will, and they must find in favor of the plaintiff in the issue, in the absence of mental incapacity, fraud or undue influence.”
    Answer: “This point answered in the negative. We do not consider the name of the residuary devisee as before the jury at all. The proof was adjudged insufficient to receive it, and the blank must be considered as remaining in the will at the time of its execution; one witness alone was insufficient to prove the power to insert the name. George D. Rise has no sufficient knowledge as to when or where the name was inserted — whether in the presence or by the direction of the testator or not. Miss Frantz was not there, and Mrs. Huber is the only witness; her evidence alone is insufficient.”
    4. “ If the jury believe that the blank in the residuary clause of the will was filled up by George D. Rise in the presence of Juliana Huber and the testator, by his authority, within two hours from the original execution of the will, such insertion was a re-execution of the will in the presence of two competent witnesses, and they must find for the plaintiff in the issue, in the absence of mental incapacity, fraud or undue influence.”
    ■Answer: “We consider the proof of direction to insert the name of the residuary devisee is made by one witness only, and therefore insufficient. It requires the same solemnity as the original execution, else the statute might be avoided in most important particulars. Answered in the negative.”
    5. “If the jury believe that the testator instructed Juliana Huber, one of the subscribing witnesses to the will, immediately after its execution, to take the will to William M. Derr to have his name inserted, which Derr having refused, and such refusal being communicated to the testator, the testator directed the ñamé to be inserted by George D. Rise, in the presence of Juliana Huber and himself, such direction was a part of the execution of the will, and being done in the presence of George D. Rise and Juliana. Huber, was a legal re-execution of the will, and the plaintiff in the issue is entitled to recover, in the absence of proof of mental incapacity, fraud and undue influence.”
    Answer: “ The facts are not as supposed in this point. The testator gave no direction to take the will to Derr and have his name inserted in the blank, and George D. Rise does not prove that the name was inserted by him by direction of testator. He cannot (tell) when, where or by whose direction it was inserted.”
    8. “ If the jury believe that the relations existing between the testator and the residuary legatee in the will at and before the time of the execution of the will, were not of so intimate a nature as to warrant the belief that undue influence was exerted on the mind of the testator by reason of such existing relations, they must find that the devise in favor of William M. Derr was a voluntary disposition of his estate, not against the policy of the law under the proof in the case, and in the absence of any other proof of undue influence, fraud or mental incapacity, the plaintiff in the issue is entitled to recover.”
    Answer: “As we understand the law, where an attorney in whom confidence is reposed is employed by a person to prepare his will, the most perfect good faith must be observed. If any very considerable legacy is given to the attorney, it devolves on him to show that the matter was perfectly understood by the testator, that no undue influence was used. The whole course of proof is changed so far as relates to such bequests. It rests on the attorney to prove that all was right, perfectly understood, and so intended by the testator.”
    9. “If the jury believe that there was no undue influence used upon the mind of the testator by the residuary legatee (of which there is no proof in the case), that the name of the said residuary legatee was inserted at the instance of the testator and by his authority, and against the consent of the said legatee, he not being present at the time, fraud cannot be presumed, and the plaintiff is entitled to recover.”
    Answer: “ If this point is intended to apply to the residuary devisee, it is already decided in the negative. If to the residue of the will, we have already said that it is not destroyed thereby, so far as we may judge from the evidence.”
    10. “ That no evidence has been submitted to the jury to prove that the plaintiff was the confidential counsel of the testator, or that at the time of the execution of the will he in any way acted in that capacity or had so acted for years, other than in the preparation of the will; and as it is in proof that the testator requested the said plaintiff to accept the residuary legacy mentioned, which he refused to do, there is no evidence of undue influence in consequence of confidential relations existing between the parties, of the exercise and employment of fraud to secure the said devise, and the plaintiff is entitled to recover.”
    Answer: “ As. already said, where a very considerable bequest (in proportion to the amount of the estate), is made to the attorney, (or even a scrivener) who drew the will, it rests on him' to show that all was fair and perfectly understood by the testator. In the present case $500 were given without any other reason stated than Mr. Derr being his attorney. The law looks with jealousy on every such bequest, and requires affirmative evidence on the part of the attorney that all was fair and perfectly understood; without that the bequest must fall. The jury must judge whether the matter, as also the situation of the estate, was perfectly understood by the testator. $1000 is given to the executors to carry on any contest which may arise concerning the real estate. As a matter of course the bequest does not take effect if there should be no contest. Whether this has all been explained to the satisfaction of the jury must be judged by them. We cannot say, as a matter of law, that there was no unfairness, or that the bequest to the attorney is good.”
    The court charged:— * * *
    “ Mr. Derr, under whose direction the will was drawn, is'made residuary devisee. Whether that was so intended or not, is extremely problematical, as the witnesses prove that the conversation was about making Mr. Derr his attorney, and it is in proof, that both before and after its execution, he often spoke of intending to leave all the residue of his estate to his mother’s family, and of having so disposed of it, yet they are not named. We have rejected the residuary clause, as not being legally inserted and authenticated — done after the will was executed, without republication. Yet you must decide whether it was or was not inserted fraudulently. If so done, it would vitiate the instrument. If honestly and fairly inserted as intended, it would have no such effect, hut would merely defeat the residuary clause, and cut out that part of the devise. Such would be the case even if the testator supposed that he was only making Mr. Derr his attorney, if the latter also intended to be made the attorney, as he certainly used no undue influence then, but merely said if they wanted him to act as attorney to insert his name, and declined doing ■ it himself. We are unwilling to think that such a fraud was practised as would vitiate the instrument. This more especially as the will was in possession of the testator for several years after. We might fairly infer that he had read and understood its contents from its long possession. The only fact which conflicts with that is the testator’s declarations to Mrs. Huber, the witness, that the Zimmermans had the residue of his estate. The questions of mental capacity and fraudulent alteration are for your consideration. The will ought not to be set aside in toto on slight grounds, especially where the subscribing witnesses, and many others, say that his mind was good. The insertion of Mr. Derr’s name by a third person, not interested, should scarcely be considered such a fraud as would vitiate the whole will, especially if done in presence of the testator; but we have already stated that it is not so authenticated as to render the devise of the residue valid. We might be led to infer from other circumstances that the testator did not know the residue of the estate was given to Mr. Derr by the will, but that he was merely to act as his attorney, as he proposed to give it to Doctor Gloninger, and when he declined the gift, wanted to bestow it on his infant son.
    [“ There is another principle which must have weight, in regard not only to this, but another clause in the will — $500 is bequeathed ‘to my friend and attorney W. M. Derr.’ The law looks with extreme jealousy on all bequests made to those who stand in a confidential relation and are instrumental in procuring its execution, and requires something more than mere formal proof of its signature. There should be evidence not only that it was fully known and understood by the testator, but also that ■ it was his own spontaneous wish, uninfluenced by the person making or dictating the instrument. This applies most emphatically to those standing in the relation of attorney and client, as there is none more confidential. It has even been applied to physician and patient, clergyman and parishioner; in short, to all who are supposed to have great influence over the mind of the testator. In one case large bequests- were made to the attorney who drew the will, and to the physician and clergyman who were -present at its execution, and it was held void as to all, although they were gentlemen of the highest character for probity. Under this principle the jury may feel themselves obliged to reject the bequest of $500 to Mr. Derr, as it would seem that he prepared the will or directed its preparation.]

      “ The bequest of $1000 to the executors to litigate the title to the estate would stand on a different footing, as that is not an absolute gift; it is only setting apart a fund for the purpose. If there should be no litigation, there would be no application of the fund or any part of it. In a contest, no more would be allowed out of the $1000 than a fair compensation for services. The appointment of the executors stands in the same situation; they are under the control of the Orphans’ Court, and there is no good reason for vacating the office because one of them is the attorney who prepared the will. The jury can find one part of the will good, and vacate or nullify other parts, as they consider right under the evidence, according to the principles we have laid down. This, with the answers to the points presented by the parties, will sufficiently elucidate our views of the law.”
    The verdict was as follows:—
    “ A jury being called, &c., * * * who, &c., do say that they find in favor of plaintiff, Wm. M. Derr, excepting the fifth item of the will, which begins in these words: ‘ I give and bequeath unto my friend and attorney Wm. M. Derr, the sum of five hundred dollars ($500), to be paid him as soon after the death of my mother as conveniently can be done,’ which we find in favor of the defendants. Also, the eighth item in the will, being the 5th and 6th specifications of issue made up, where the name of Wm. M. Derr was inserted in the blank space as residuary legatee, which item gives all the residue of the property to Wm. M. Derr, which, under the instructions of the court, we find in favor of the defendants, and that the name was inserted without lawful authority; but we do not find that the same was done by fraud or undue influence.”
    The plaintiff took a writ of error.
    He assigned for error, amongst others:—
    The part of the charge in brackets.
    The answers to the plaintiff’s 8d, 4th, 5th, 8th, 9th and 10th points.
    Dejecting the offer of the testimony of W. C. J. Smith.

      Gr. Weidman and A. It. Bougliter.

    Circumstances may supply the want of a second witness to a will, when they go directly to the immediate act of disposition: Carson’s Appeal, 9 P. F. Smith 493; Jones v. Murphy, 8 W. & S. 295; Eyster v. Young, 3 Yeates 511; Miller v. Carothers, 6 S. & D. 215. Miss Frantz having signed as a witness, and Mrs. Huber having proved that she (Miss Frantz) was present; it is sufficient, although she herself does not recollect the circumstance: McKee v. White, 14 Wright 354. The transaction was one continuing act: Stahl v. Berger, 10 S. & R. 170. An acknowledgment by the testator in the presence of witnesses is equivalent to signing in their presence: Nickerson v. Buck, 12 Cushing 332; Wallace v. Blair, 1 Grant 75. The testimony in the case, with that which was rejected on the point, shows a republication: Gable v. Daub, 4 Wright 224; Campbell v. Jamison, 8 Barr 498; Jones v. Hartley, 3 Wash. C. C. R. 481. The presumption is that when the testator directed the name of Mr. Derr to be inserted he understood its effect: Hoshauer v. Hoshauer, 2 Casey 406; 1 Redfield on Wills 536, 537. Retaining the will by the testator raises a strong presumption that he wished it to stand: Irish v. Smith, 8 S. & R. 573. The bare fact that Mr. Derr was testator’s attorney, without more, would not vitiate the bequest: 1 Redfield on Wills 515, 529; Duffield v. Robeson, 2 Harrington 384.

      J. Funelc, for defendants in error, as to evidence of republication,
    cited Fransen’s Will, 2 Casey 206; Gable v. Daub, 4 Wright 229. The Wills Act requires two witnesses. Each must testify to all the facts necessary, so that nothing may depend on the credibility of only one: Hock v. Hock, 6 S. & R. 47 ; Carson’s Appeal, 9 P. F. Smith 502; Reynolds v. Reynolds, 16 S. & R. 88 ; Rohrer v. Stehman, 1 Watts 458; Mullen v. McKelvy, 5 Id. 399 ; Ginder v. Farnum, 10 Barr 100. The court laid down the law correctly on the question of a bequest to the testator’s lawyer, &c.: Greenfield’s Estate, 2 Harris 505. The rule is one of public policy: Boyd v. Boyd, 16 P. F. Smith 294; Shelford on Lunacy 317-323; Dean v. Negley, 5 Wright 317.
   Mr. Justice Sharswood

delivered the opinion of the court, July 2d 1874.

The jury having found in favor of this will and against the defences of mental incapacity, undue influence and fraud, we are relieved from the necessity of considering many of the alleged errors, both in the reception and rejection of evidence, and the answers to the points and the instructions of the charge, which relate exclusively to those subjects.

The principal, indeed the only matter of which, in view of the verdict of the jury, this plaintiff in error has any right to complain, is the binding direction given by the court to the jury under the whole evidence, that the residuary bequest to the plaintiff in error must be rejected as not having been legally proved as a part of the will of the testator.

The will was duly proved to have been executed in the presence of the two subscribing witnesses, but with a blank for the name of the residuary legatee. This blank was afterwards filled, and the question presented is whether the act of filling up that blank was so proved by two witüesses as to make it in law a part of the will.

There is no difficulty in regard to the rule of law upon the subject. That has been well settled and repeatedly applied in the prior determinations of this court. It was fully considered and discussed in Carson’s Appeal, 9 P. F. Smith 493, in which the former cases are cited. That principle is well generalized in the language of Mr. Chief Justice Gibson in Hock v. Hock, 6 S. & R. 47: “ Proof of execution must be made by two witnesses, each of whom must separately depose to all facts necessary to complete the chain of evidence, so that no link of it may depend on the credibility of but one. When the evidence is positive there can be no difficulty, for the witnesses then attest the simple fact of execution itself; but where the evidence of one or both is circumstantial, each must make proof complete in itself, so that if the Act of Assembly were out of the question, the case would be well made out by the evidence of either. Circumstantial proof cannot, therefore, be made by two or more witnesses alternating with each other, as to the different parts of the aggregate of circumstances which are to make up the necessary sum of proof; the evidence of each not going to the whole.”

The rule is a simple, intelligible one, but the difficulty in this, as it has been in other cases, is in its application. It is not easy for the mind to divest itself of the influence which facts sworn to by one witness have in corroborating the evidence of another, especially of supplying what is a mere vacuum — a failure or uncertainty of memory in another. This difficulty is well illustrated by the evidence in this case. The evidence of Mrs. Huber was direct and positive that her son, George Rise, wrote the name in the blank in the presence of the testator and by his express direction. Striking out the entire testimony of Mrs. Huber, is there sufficient evidence from other witnesses in the cause which would justify the submission of that fact to the jury ? George Rise was unable to testify that he had inserted the name by the direction of the testator or in his presence. “This name,” said he, “is my writing. I cannot tell at whose instance I put it in; was done at Greenawalt’s or Derr’s office. I know I wrote it in; can’t say when or who present. If at Derr’s office, he present; if at Greenawalt’s house, he present. If at his house, my mother present; witnessed a bond; I was called on purpose to witness the bond. I never gave a thought to the other transaction.” The only other witness present was Lydia Frantz. She could not recollect having seen George Rise there. She left after the first execution of the will. “ I think I went home to tea.” The circumstance of the execution of the bond would of course be material, but that it was done at the same time with the writing in the will depends solely upon the credibility of Mrs. Huber. Lydia Frantz does not remember it. What other circumstances then have we in the case ? There is undoubtedly evidence of repeated declarations by the testator that Mr. Derr was his residuary legatee, though some evidence was given of declarations to the contrary. It is clear that they go for nothing: Hock v. Hock, 6 S. & R. 47 ; Clark v. Morton, 5 Rawle 235. Nor is the circumstance that the will continued four years from its date in the possession of the testator sufficient. Had there been no subscribing witnesses, and the will been proved by the testimony of two witnesses to the handwriting of the testator, it would perhaps have been sufficient primá. facie. The presumption may be that it was perfect when the testator subscribed to it. But the subscribing witnesses were there and must be called, and their testimony showed that the will was not perfect when he executed it. We are thrown back then upon the testimony of Mrs. Huber, as to when the blank was filled, and whether by the authority and at the instance of the testator. It' might well be that, believing his instruction to have been followed, he had kept .the will in his possession without further examination. It does not appear that he ever had the will in his hands after its execution. Even Mrs. Huber fails to prove that, but rather shows the contrary. “ After the will was executed, he asked me to take it ‘home with me. I took it home; kept it from December till some time in March. I took it back, gave it to his mother, and she put it in his desk; was found there after his death.” Adopting Chief Justice Gibson’s language in Hock v. Hock: Strike out Mrs. Huber’s testimony, and how will the case stand ? There would be a very material link wanting to connect the testator’s declarations with the paper in question. It is said these two witnesses mutually strengthen and support each other. So much the worse. Each must be competent to the whole proof without aid borrowed from the other.”

We are of opinion, therefore, that’ the learned judge below committed no error in the binding direction which he gave to the jury to reject the residuary bequest as no part of the will of L. T. Calvin Greenawalt.

As to the contention that no separate issue was directed as to the fifth item of the will, and the jury was not, therefore, empowered to find that to be no part of the will, as perhaps may be inferred from Hoxworth v. Miller, 7 Barr 458, it is sufficient to observe that no such point was made in the court below, nor has it been specifically assigned for error here.

Judgment affirmed.


author: Mr. Justice Williams

text:
    Dull versus Bricker.
    l..The acceptance of an order to pay money is an engagement by the acceptor to the payee or other holder to pay according to the tenor of the acceptance ; it is not a suretyship to answer the debt or default of another.
    2. The acceptor is a primary debtor: the Statute of Frauds does not require the acceptance to be in writing.
    3. A rule of court was, “ If the plaintiff’s action be a general assumpsit, not founded on a writing, he shall, upon reasonable request, * * * file, together with his declaration, a written statement of the account or demand that he purposes to give in evidence, and rely on at the trial; and on failure so to do, no evidence thereof shall be received.” The plaintiff’s claim in his nan-, was general, on defendant’s parol acceptance of orders ; some of the orders were in his possession; he requested a written statement of plaintiff’s demand. The plaintiff not having given such statement, could not give the orders in evidence.
    4. The orders being in defendant’s possession, plaintiff was nevertheless required to give such description of them as would have enabled defendant to identify them.
    5. The notice of the demand is to answer the purpose of a special count, and is to be treated as a substantive and material part of the proceedings.
    6. Knowledge of the plaintiff’s demand is not an equivalent for the statement required by the rule.
    May 18th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 14, to May Term 1874.
    This was an action of assumpsit, brought April 25th 1861, by James Bricker, for the use of Fink & Brother and Horner & Brother, against James J. Dull and Thomas Collins, - partners under the name of Collins, Dull & Co. Service was made on Dull only. There was a return of “ nihil ” as to Collins.
    The first count of the declaration, which was filed October 9th 1868, set out that during the years 1859 and 1860 the defendants were contractors with the Bedford Railroad Company for constructing their road: that Thomas Keating, Michael McCabe and John Drew were sub-contractors of the defendants, and the plaintiff was a merchant; that the said sub-contractors desiring to purchase goods from the plaintiff, he refused to furnish them with goods unless the defendants would agree, in consideration thereof, to pay for them out of moneys coming to the said sub-contractors from the defendants. The declaration averred that the defendants, in consideration that the plaintiff would furnish goods to the said subcontractors, promised to pay for the goods out of moneys coming to them from the railroad company, on their estimates, as soon as the same should be received by the defendants and be due to the said sub-contractors, who agreed thereto. The declaration further averred that, in consideration of the promise, the plaintiff sold to the said sub-contractors goods of the value of $2500, and that the defendants had long since received said sum from the railroad com pany on the estimates of said sub-contractors. The second count was for $3000, money received by the defendants to the use of the plaintiff.
    On the 24th of October 1873, Dull pleaded “ Non assumpsit and payment with leave,” &c.
    The following are rules of the Court of Common Pleas of Dauphin county:—
    “ 67. Either party to an action may require in writing of the other party an exhibition of any paper or papers upon which the action is founded, or which is relied on as a defence, and to have copies thereof, if necessary, made at Ms own expense, within twenty days after such requisition; and upon the refusal of either party to make such exhibition, or permit such copies to be made, the same shall not be given in evidence on the trial.
    “ 68. If the plaintiff s action be a general assumpsit, not founded on a writing, he shall, upon reasonable request, before the defendant, be compelled to plead; or where a plea has been entered within twenty days after such request, file, together with his declaration, a written statement of the account or demand that he purposes to give in evidence, and rely on at the trial; and on failure so to do, no evidence thereof shall be received.”
    Under these rules the defendants gave these notices to the plaintiff’s attorneys, each notice stating the action and dated January 2d 1864
    “ Gentlemen: You are hereby notified and required to exhibit to the defendant, James J. Dull, within twenty days hereafter, any paper or papers upon which the above action is founded, and also allow him to have a copy or copies thereof, made at his own expense, as provided by the sixty-seventh rule of said court.
    “ Gentlemen: You are hereby requested to file in the above-stated case, within twenty days hereafter, a written statement of the account or demand it is purposed to give in evidence and rely on at the trial thereof, as provided by the sixty-eighth rule of said court.”
    On the 28th of January 1873, the death of James Bricker was suggested, Elizabeth A. Bricker and William H. Bricker, his administrators, substituted, and the case marked to the use of his estate.
    The cause was tried May 6th 1873, before Pearson, P. J.
    The plaintiff offered separately the following orders, produced by defendants on notice:—
    “ Section 5, Bedford Railroad.
    “ Messrs. Collins, Dull & Co.,
    “ Please pay James Bricker one hundred dollars out of November estimate and oblige, Yours,
    “$100. Michael McCabe.”

      “ Section 6, Bedford Railroad.
    “ Messrs. Dull, Collins & Co.,
    “ Please pay J. Brieker three hundred and twenty-five dollars and two cents out of September, October and November estimates, and this shall be your receipt, and oblige,
    “$325.02. Thomas Keating, Agent,
    for Thomas B. Keating.”
    To be followed with proof that the orders had been accepted and not been paid, and had been, since the bringing of the suit, in the hands of defendant.
    Objected to, as coming within the Statute of Frauds, and because defendants had not been furnished with copies and statement of the demand under the 67th and 68th rules of court.
    The offers were admitted and bills of exception sealed.
    The plaintiffs offered the record of an attachment-execution, in Bedford county, to September Term 1861: Goldsmiths. Brieker & Drew; in which Collins & Dull were garnishees, and in which, in answer to interrogatories, the garnishees, as a defence, set out that this suit was pending in Dauphin county to recover the same money, and defeated the recovery there, by showing the suit was for the same debt as that sued on here.
    Objected to, amongst other things, because copy, &c., was not furnished under the rules of court.
    Per Curiam. — “ The object of both the rules of court was to give, the parties litigant fair notice of the claims demanded. Where a party states in a controversy between others that he had full notice of the claim, we are unable to see what further notice is required.”
    The offer was admitted and a bill of exceptions sealed.
    The answer of Dull to the second interrogatory was: “ Dull, Collins & Co. had business transactions with John Drew, but not with James Brieker. John Drew was a sub-contractor under Dull, Collins & Co., on the Bedford Railroad. At the time of the service of the writ in the above case, and still, there is a balance on the books of Dull, Collins & Co., in favor of John Drew, of $1183.86; but it had previously been understood and agreed between Dull, Collins & Co., James Brieker and said John Drew, that said money should go and be paid to said Brieker in payment of the indebtedness of said Drew to said Brieker, and said Brieker, as said Dull, Collins & Co. have learned, before the service of the writ in this case, assigned and transferred said moneys to Fink & Brother and Horner & Brother, and the said last-named parties have a suit pending in Dauphin Common Pleas for the same-against Dull, Collins & Co.”
    The plaintiff then gave evidence by John Fulton, engineer of the Bedford Railroad Company, that Keating’s estimates for September, October and November were $861, and their final estimate was $2449.20, and that McCabe’s November estimate was $136,. and his final estimate $3319.32.
    W. D. Shell, president of the railroad company, testified that the plaintiff sent him some orders on Collins & Dull to get their acceptance. Witness asked Dull. He said he would not accept them absolutely, only conditionally. He would pay them’ Avhen he got the funds from the company and it was due to them (subcontractors) for work done. Bricker wanted the orders returned. Dull never returned them. Dull & Collins claimed more than their estimates and got it; they got bonds. The orders were to be paid when they realized the money on the bonds. Dull agreed to pay the orders out of the fund as presented, provided the money was then due them. An auditor was appointed, and all were paid as he reported. This payment was made in 1861.
    There was evidence for the defendants that the whole amount due McCabe and Keating as sub-contractors had been paid to them on orders and in cash.
    In the course of the trial there was other evidence for the purpose of showing an indebtedness from defendants to McCabe and Keating; the acceptance of the orders by defendants (claimed to be shown by letters from Dull, and from Collins to Bricker and otherwise); that they had funds in their hands belonging to the drawers; and that they had not been paid.
    Also, other evidence by defendants in answer to the plaintiff’s case.
    The defendants submitted points which it is not necessary here to notice.
    The court charged:— * * *

      “ The only two claims before you are the orders already recited.
    [“ We are asked by the defendants to instruct you that there can be no recovery on account of the failure to comply with the 67th and 68th rules of court, but decline so to do for these reasons: The evidence shows that the two orders were in the hands of the defendants, and produced by them on -notice; therefore they could not require copies, nor ask to have them furnished. Whether a statement of the claims now demanded should have been furnished, is a question for you as well as for the court. There is no doubt a bill of particulars should be furnished on such a notice; but it is said the defendants well knew that these two orders were demanded, as appears from their answers as garnishees in the suit of Goldsmith v. Bricker & Drew, in the Common Pleas of Bedford county, in which they state that they were sued for this same claim of $325, for the use of Einlc & Brother and Horner & Brothers, to whom the claim was then assigned. If from that answer put in as garnishees you are satisfied that they well knew this was the .order in suit, they could scarcely require notice thereof under the rule of court. If that was left in doubt and uncertainty in their minds, notice should have been given.] It seems that these two assignees of the claim were afterwards satisfied in some way, and the money was coming to Bricker most probably, all of that is for the jury.
    “ There is another matter worthy of consideration. Although the defendants knew in 1861 that this was an item claimed, did they know that it was still claimed in 1864 ? You must be satisfied that such was the case, else there can be no recovery for want of notice of the items claimed. The $100 order given by Michael McCabe was probably never paid to him.. Did the defendants know that it was demanded in this suit ? If they did not, there can be no recovery without notice. If they did know and understand that it was part of the claim, and they accepted the order, there can be a recovery of the amount with reasonable interest.
    “ Did the defendants accept these orders ? It is very certain they did not to Mr. Schell, as the orders held by him were never given over, but retained by him, whilst these were in defendant’s hands. Schell would not receive a conditional acceptance, and they would not give any other. Can you infer an acceptance from the lifting and retention of the orders, together with the letters which you will have out with you, and the answer of Mr. Dull as garnishee ? In one of his letters he intimates that payment will be made if the sums are due to the contractors on their estimates being paid. You must endeavor to ascertain from the whole evidence, whether there was a promise to pay these two orders. If there was, the defendants are bound. If not, the plaintiff cannot recover.
    [“ It is said there can be no recovery here under the Statute of Frauds,- as.it is the promise to pay the debt of another. As we understand this claim, it was a promise by defendants to pay their own debt. If they received the money of the contractors to pay over to their creditor, and accepted and lifted the order under an agreement to pay, it became their own debt — they owed the money.] * * *
    “You must be satisfied from the evidence that the orders were accepted and agreed to be paid, else there can be no recovery.
    “On the whole the ease is not a little confused, and requires the careful consideration of the jury. You must judge whether any part of these orders have been paid or was included in any of the settlements. If not, and there was a promise to pay, the plaintiffs are entitled to recover.” * * *
    The verdict was for the plaintiff for $781.02.
    The defendant Dull removed the record by writ of error to the Supreme Court.
    He assigned for error:—
    1,. 2. Admitting the orders of McCabe and Keating in evidence-
    5, 6. The parts of the charge in brackets.

      B. J. Miter and M. Jordan, for plaintiff in error.
    The defendant had the right to know what was the character of the evidence to support the cause of action laid in the declaration, and the rules of court authorized him to require it to be furnished: Hale v. Fenn, 3 W. & S. 361; Gilpin v. Howell, 5 Barr 41. A bill of particulars precludes a party from giving evidence of any demand not stated in it: 2 Sanders’ Pl. & Ev. 698, 699; Moatz v. Knox, 1 Jones 268; Covely v. Fox, Id. 171; Thomas v. Mann, 4 Casey 520. A defendant, by setting out in a plea of set-off the special matter of which he should give notice, cannot give other matter in evidence and is not entitled to a continuance: Wilson v. McClay, 14 S. & R. 176; Daniel v. Wilver, 12 Harris 516; Erwin v. Leibert, 5 W. & S. 103; McClurg v. Willard, 5 Watts 275. Notwithstanding the evidence offered to establish such matter, has been given on a former trial of the cause before arbitrators: Beyer v. Fenstermacher, 2 Whart. 95; Rentzheimer v. Bush, 2 Barr 88 ; Rodgers v. Kichline, 4 Casey 231.
    Where the law requires a writing, the rights, and the persons by and to whom they are to be passed, must be defined in the writing with such degree of precision that one may, with reasonable certainty, apply it on knowing the circumstances of time and place: Miller v. Fichthorn, 7 Casey 252. And on this point see also Jack v. Morrison, 12 Wright 113; Maule v. Bucknell, 14 Id. 39.

      J. W. Simonton, for defendants in error.
    The court below is the proper interpreter of its own rules: Bigoney v. Stewart, 18 P. F. Smith 320; Coleman v. Nantz, 13 Id. 181; Frank v. Colhoun, 9 Id. 381; Wickersham v. Russell, 1 Id. 71. The rule was to prevent surprise, and was therefore of great aid to the routine of the business of the court, to which routine they alone apply: Magill’s Appeal, 9 P. F. Smith 431. The acceptor of a bill is the primary debtor. The Statute of Frauds does not apply: Spaulding v. Andrews, 12 Wright 411.
   Mr. Justice Williams

delivered the opinion of the court, July 2d 1874.

The acceptance of an order for the payment of money imports an engagement on the part of the acceptor, to the payee or other legal holder, to pay it according to the tenor of the acceptance. It is in no sense a contract of suretyship or a promise to answer for the debt or default of another. The acceptor is a primary debtor, and the Statute of Frauds does not require the engagement to be in writing. The fact that the orders in question were verbally accepted, was, therefore, no valid objection to their admission in evidence. But were they admissible under the rules of court ? The plaintiffs did not exhibit them to the defendants, nor file with their declaration a written statement of the demand that they purposed to give in evidence, in pursuance of the defendants’ notices, as required by the rules. Why, then, should the orders have been admitted contrary to their express prohibition? If they were in the possession of the defendants, the plaintiffs were not bound to exhibit them, but they might have given such a description of them as would have enabled the defendants to identify them; and if they had done so, it would have been a substantial compliance with the rule. But the defendants’ possession of the orders was no justification or excuse for not filing with their declaration a written statement of the demand which they proposed to give in evidence. It would be a narrow construction of the rule to hold, as- the court below seems to have done, that the only purpose of the statement is to give notice of the plaintiff’s demand. This is undoubtedly one of its objects, but it is also intended to answer the purpose of a special count, and in this respect it must be regarded as a substantive and material part of the pleadings. Knowledge of the plaintiff’s demand, however, acquired by the defendants, is not an equivalent for the statement required by the rule. It was therefore error to admit the orders subject to the instruction that if the defendants did not know that they were demanded in this suit, there could be no recovery without notice under the rules of court. But if the defendants accepted the orders and knew that they were part of the plaintiff’s claim, then notice under the rule was not necessary, and there could be a recovery of the amount with reasonable interest. This ruling opened the door to an inquiry which the defendants were not bound to come prepared to meet, and submitted the case to the jury upon an issue not raised by the pleadings. It subjected both parties to the hazard of a finding which might have done great injustice; and, though no such result may have followed the ruling in this case, to sanction it would be establishing a mischievous precedent. Whether the orders were admissible or not, was a question for the court, and not a mixed question of law and fact for the determination of the jury under the instructions of the court. And it is clear that under the rules they should not have been admitted.

There was no error in refusing to charge as requested in the defendants’ points, and there is nothing in them that requires discussion.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Seeds versus Kahler.
    1. A married woman owned land which she farmed,'her husband managing for her; he had long been insolvent and without credit; her credit was good. He purchased a horse for her and signed a note for the price, “ John E. Seeds for Josephine Seeds.” She received the horse and used it on the farm, and acknowledged her liability for its payment. The horse was seized for the husband’s debt before it was paid for. In an issue on a' sheriff’s interpleader, Held, that whether he bought the horse for himself or for her, was a question for the jury.
    2. Where a wife has separate estate and buys goods on its credit, she may hold them against the creditors of the husband.
    3. .To protect goods from the husband’s creditors, it is incumbent on the wife to establish that their purchase was on the credit of her separate estate.
    May 19th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Huntingdon county: No. 40, to May Term 1873.
    This was a sheriff’s interpleader, in which the issue was made up April 15th 1872, between Josephine Seeds, plaintiff and claimant, and August Kahler, defendant.
    Executions had been issued at the suit of Kahler against John E. Seeds, the husband of the claimant. The sheriff, under the executions, levied on certain personal property as belonging to the husband. It was claimed by the wife, and on that claim the inter-pleader issue was framed.
    On the 28th of February 1866, Hugh Seeds, the father of John E. Seeds, who had long been insolvent, conveyed to R. B. Petfiken a tract of land known as the “ Means Farm,” in trust for the use of Josephine Seeds, wife of John E. Seeds, for her natural life; or, if she should survive her husband, for so long as she might remain his widow; she only, or such person as she might appoint, to receive the rents and profits, so that the same should not be under the control, or be liable for the debts, &c., of John E. Seeds, or of any future husband. By the deed, the trustee was authorized, with her consent, to sell the farm and buy other real estate, and to give a mortgage on it for $2000 to Hugh Seeds, and also to borrow money on mortgage from time to time for the improvement of tlie farm.
    On the same day, Hugh Seeds, for the purpose of enabling Josephine Seeds “ to use, occupy and enjoy the plantation ” so conveyed ; by writing, under his hand and seal, gave and delivered to Josephine Seeds “all the stock, horses, cattle, wagons, farming, implements, goods and chattels mentioned in the schedule and inventory” annexed. The valuation of the goods was $1483.
    Mr. Petriken having been at his own request discharged and other trustees who had been substituted having also been discharged, John E. Seeds, the husband, on the 2d June 1870, was appointed the trustee.
    The trustee, under his powers in the de&d, sold the “Means Farm” and purchased the “Eden Farm,” to be held under the same trusts.
    Mrs. Seeds, with her husband and son, lived on the farms, and with their assistance she farmed these plantations. They aided her also in buying and selling. From the proceeds of these farms she paid Hugh Seeds the $2000 mortgage and other debts which had been contracted to the amount of $3000. She continued to buy and Sell upon the credit which the title to the property conveyed her by her father-in-law and the farm bought in its place, gave her.
    To April Term 1872, August Kahler, the defendant, issued two executions against John E. Seeds, and levied on all the stock, cattle and farming implements on the farm, and all the goods and household furniture in the house.
    Amongst other property levied upon was a mare. The principal controversy was as to the ownership of this mare.
    The case was tried August 20th 1872, before Dean, P. J.
    John E. Seeds testified: “ We bought the bay mare from August Kahler. We have not paid it, but intend to pay for it. It was bought for Mrs. Seeds for her use.”
    There was given in evidence, a note dated March 17th 1868, in .favor of Daniel Keller, in consideration of the mare for $181. Signed, “August Kahler, John E. Seeds for Josephine Seeds.”
    Being shown to witness, he testified that it was the security given for the mare.
    Other testimony, as taken from the notes of the official stenographer, was as follows :—
    “ Question. State how you came to buy that horse ?
    “ Answer. Why, August Kahler bought it from Daniel Keller, and we went his bail on the note; and after he had' the mare there at our place, and she was so wild he could not ride her; he got tired of her about a month after, and he got at us to buy her, and we got her of him, and we was to pay Keller for her.
    “ Q. Well, you acknowledged — your wife acknowledged her liability to pay that ?
    “A. Yes.
    “ Q. You gave this as bail to August for that mare ?
    “ A. Yes.
    “ Q. August Kahler brought the mare then to your place ?
    “ A. He brought her there, and got tired of her, and he got at us till we bought her, and we were just to pay Daniel Keller for the mare. We have not paid that yet, but we intend to pay for it.
    “ Cross-examined. — Q. With regard to the Kahler horse, when had Kahler bought it ? ■

      “ A. He bought it at Daniel Keller’s sale.
    44 Q. Did you not send August Kahler to buy that horse ?
    “A. No.
    44 Q. Had he means of his own to buy it with ?
    “A. Yes; I suppose he had.
    44 Q. Now, did not you fix any price to that horse before you sent him to Keller ?
    “A. No; I did not. There was no conversation between Kahler and I about that, because if we had wanted the horse I would have gone and got the horse myself; but when he fetched the horse there, hi could not ride her; she was that fiery and mean that he was afraid to ride her, and he got us to buy her, and we done so. Billy Davis filled up that note; I signed that note — both the signatures.
    44 Q. That is Kahler’s name ?
    “ A. Yes; we signed it all at one time. This note was given a couple or three weeks after the sale.
    “ Q. Did he permit Kahler to take away this horse without giving any note ?
    “ A. Yes, sir; he had taken her away and brought her to our place. Cannot tell the date of the sale, it was before the 1st of April.
    44 Q. Was not that note signed on that day ?
    44 A. It might have been dated on that day, it was not signed on that day. I signed it at Davis’s store, at Shaversville. Daniel Keller lived up the valley. I was not at the sale. The note was signed a few days after the sale.
    44 Q. He had bought the horse then just on his own credit, which was so good that they did not require any note before he took her away?
    “ A. I don’t know how that was, but I saw Dan Keller at Shavers-ville, and says he,4 Tell August that I want security for that mare,’ and I said, 4 We will go his security for the mare,’ and says he, 4 The note is in at Jemmie Davis’s, he has the note in his store."
    44 Q. You say you went his security and you were to pay it ?
    44 A. Yes, sir, he held the mare. It was his when we went his security.”
    August Kahler, defendant, testified: 44 John Seeds sent me to buy the bay horse; I was working for him at that time; he told me to buy the horse there; I was working before at Dan Keller’s, and I knew the horse; he did not say how high I ought to go; he did not say anything about the price; Seeds did not know anything about the horse; his son Robert and I went to the sale ; I bought the horse for Seeds; he sent me there to buy him ; when the sale closed there was nothing said to me about giving a note (note shown to witness); that is my name; it was signed in John Seeds’s house, he was there ; I don’t know who brought the note there; Seeds told me to put my name here ; I cannot read English and did not know what it was, and I afterwards did not know anything about it; I was never called upon for the payment of that note;. John never said anything to me about his wife owning the farm; I left that horse at Seeds’s ; he never was my horse.”
    Josephine Seeds, plaintiff, testified: “ I think Mr. Lytle did ask me that evening amongst the first questions, about signing a note in favor of August Kahler; I told him that if my name was there I suppose I had signed it.
    “ Q. Did you say you had authorized your husband to sign it, or did you deny it ?
    “ A. No, sir, I did not deny it; I told him to do the best he could, and to do it all for the best; I did not refuse to pay Kahler, and did not set up for a defence that I was a married woman; I stated there that if I had signed them I intended to pay them; I did not ever refuse to pay them.
    “ Q. Were you present when August Kahler brought that mare home ?
    “ A. I was at home, yes, sir.
    “ Q. State what took place when that mare came there ?
    “ A. Well, I just said to him, ‘ Well, did you buy a horse ?’ he said, 11 did ;’ said I, ‘ What for ?’ said he, ‘ To ride and drive.’
    “ Q. State whether or not you and John afterwards bought that mare from Kahler.
    “ A. We did; I did not at any time hear John tell Kahler to go to Keller’s to buy a horse.”
    The court, after instructing the jury as to the law in the case and referring to the evidence as to the other personal property, as to the mare said :—

      “ The defendant further urges that the claim of plaintiff to the bay mare purchased at Daniel Keller’s sale has failed. You will remember the testimony of Kahler. He says, at John’s request he went to the sale and bid for this mare for him, John E. Seeds ; that he took her home and John bought her from him. You will remember what John and Mrs. Seeds testify. They say Kahler bought her, and they bought her from him; that Kahler gave his note, and they went his bail to Keller. It is not alleged that Kahler paid Keller, or that they paid Kahler. If the testimony of Kahler be believed, that he bought her for John, of course she is John’s property. If Seeds and wife purchased her from Kahler jointly, she would still be subject to levy and sale for John’s debts, unless the property was acquired afterwards by Mrs. Seeds, in one or other of the methods by which a married woman acquires title to property. It is not alleged that Mrs. Seeds bought and paid for this mare ; that Kahler sold to her, or that she acquired this portion of the property in any other way than by a joint purchase with her husband; therefore the evidence, it seems to us, fails to establish her claim to this mare, and we so instruct you. * * *
    * “ As to the bay mare bought at Keller’s sale you will find for the defendant, whatever may be your verdict as to the other property levied on; and the products of the farm you will find for the plaintiff.”
    The jury found for the plaintiff specifically, a number of articles contained in the sheriff’s levy, including some articles of furniture.
    “ And find for the defendant, the bay mare bought at Keller’s sale, one corner cupboard, chairs, tables, and all household and. kitchen furniture not above named as found for plaintiff included in the sheriff’s levy.”
    The plaintiff took a writ of error and assigned for error, amongst other things, the parts of the charge above stated.

      B. M. Speer and H. B. Petriken, for plaintiff in error.
    Where the credit results from the ownership by the wife of valuable real estate, neither reason, justice nor public policy forbids her the benefit of it: Brown v. Pendleton, 10 P. F. Smith 421; Wieman v. Anderson, 6 Wright 311; Rush v. Vought, 5 P. F. Smith 438; Musser v. Gardner, 16 Id. 243; Bucher v. Ream, 18 Id. 426. The evidence was conflicting and should have been submitted to the jury : Flick v. Devries, 14 Wright 267 ; Welch v. Kline, 7 P. F. Smith 432; Earl v. Champion, 15 Id. 194; Tripner v. Abrahams, 11 Wright 220.

      S- T. Brown (with whom was P. M. Lytle).

    The evidence of plaintiff did not show that the mare was bought on the credit of her separate estate: Bucher v. Ream, 18 P. F. Smith 426; the question therefore should not have been submitted to the jury. Goods purchased on her personal credit are not her separate estate: Robison v. Wallace, 3 Wright 129.
   Mr. Justice Mercur

delivered the opinion of the court, June 1st 1874.

The plaintiff in error was the unquestioned owner of the farm on which she and her husband resided. She was engaged in its cultivation. The jury has found that she owned the stock, farming implements and crops, upon it. Her husband acted as her agent in overseeing the farm, and in conducting her business generally. He had been for many years, prior tO' the-purchase of the mare in question, and then was, notoriously insolvent. She had good pecuniary credit, he had none. The note given on the purchase of the mare of Keller, indicated upon its face, that her credit, not her husband’s, was pledged for its payment. Whether her name was signed as surety or as principal, it professed to bind her only, and not him. Hence whether the purchase was made of the defendant, as claimed by the plaintiff, or -whether it had previously been made of Keller for her husband, as the defendant testified, the fact remains that the husband signed the note in behalf of ELis wife. It is well settled that when the wife has a separate estate, and she buys property on the credit of that separate estate, she may hold it against the creditors of her husband: Wieman v. Anderson et al., 6 Wright 811; Rush v. Vought, 5 P. F. Smith 437; Brown v. Pendleton et al., 10 Id. 421; Musser v. Gardner, 16 Id. 242. It is not necessary that she shall have paid for it at the time of her purchase. She is not precluded from buying upon credit, provided it be upon the credit of her separate estate. It is incumbent upon her to- establish the fact that the purchase was so made, to protect her title against the creditors of her husband. The fact is to be established by proof which satisfies the jury. As already shown, she had a separate estate; her husband had none. The question then is, was there • sufficient evidence to leave to the jury to find whether the mare was purchased for the plaintiff and on the credit of her separate estate ? Both the plaintiff and her husband distinctly testify that the purchase was made of the defendant some time after he had purchased from Keller. In answer to the direct question put to the husband whether it was bought for him or for his wife, he answered, “it was bought for Mrs. Seeds, for her use.” He also testified that his wife acknowledged her liability to pay. This then was a ratification of his authority to bind her in the purchase. It is true, in the course of his testimony, he said, “ we bought ” and “we have not yet paid,” but this language does not necessarily imply, that he and his wife jointly purchased. The language “we bought,” or “we sold,” is that which every wife and every child frequently uses in speaking of a purchase or a sale made by or for the husband and father. It is the familiar expression of every clerk in speaking of the business transactions of his employer. With fully equal reason and propriety may it be used by a husband who is acting as agent for his wife, without conveying the idea he is acting for himself.

It was for the jury and not for the court to put a construction on this language, yet the learned judge said to the jury “ it is not alleged that Mrs. Seeds * * * acquired this portion of the property in any other way than by a joint purchase with her husband, therefore this evidence, it seems to us, fails to establish her claim to this mare, and we so instruct you.” The testimony of the defendant that he did not sell the mare to the plaintiff, but purchased, her of Keller for the husband in his own right, created an issue of fact for the jury. Under proper instructions the court should have, submitted the evidence to the jury to find by whom, and on whose credit, the purchase was made. The learned judge therefore erred in directing the jury to find for the defendant as to the mare.

Judgment reversed, and a venire facias de novo awarded.