author: Mr. Justice Mercur.

text:
    Miners’ Trust Company Bank versus Roseberry.
    1. "Wren borrowed money at usurious interest and gave a bond for its payment, on which judgment was entered. He was afterwards adjudged a bankrupt, and his land sold by the assignee subject to the judgment. Held, that the purchaser could not have the judgment reduced by the amount of the usury.
    2. The Act of May 28th 1858 (Usury), applies only to the parties to the transaction ; it being at the election of the borrower whether he will withhold the excess or recover it back within the time limited.
    3. In the distribution of a fund judgment creditors may attack a judgment collaterally for fraud on them, but not because it is a fraud on the debtor.
    4. A subsequent judgment creditor cannot set aside a judgment merely because it is erroneous.
    5. Payment of usury is not necessarily fraudulent as to creditors.
    6. Whenever the usurious contract is intended to defraud creditors, or when the circumstances of the debtor are known to be such, that it can be reasonably presumed that this will be the natural effect, creditors have the right to postpone the excess of interest.

      7. The purchaser having bought subject to the judgment, is .presumed to have paid as much as the amount of the judgment less than he would have done.
    8. There was no privity of contract between the creditors and the purchaser and he cannot invoke their equities and claim under them for his exclusive benefit.
    March 6th 1876.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1875, No. 22.
    The question in this case arose on the following facts:—
    On the 10th of July 1871, the firm of James Wren & Co., composed of James Wren, John T. Noble and Matthew Rhoda, bor- > rowed from the Miners’ Trust Company Bank $12,750, payable in one year, and gave to the bank a bond, with warrant of attorney, &c., to secure the payment of $15,000 in one year. Judgment was entered on the same day against Wren & Co. on that bond. On the 16th of October the firm was dissolved. On the 25th James Wren was adjudged a bankrupt, and his real estate was sold by his assignee in bankruptcy on the 23d of March 1872, to James M. Roseberry, Esq., as trustee for certain of Wren’s creditors. . Execution was issued on the judgment to September term 1873, and the real estate of Wren sold by his assignee, levied upon.
    On the 6th of October 1873, Roseberry presented a petition to the Court of Common Pleas, setting out the foregoing facts, and avemng that $2250 of the judgment was “without consideration, illegal and usurious,” and praying that he might be let “into a defence for that part of the judgment which he alleged to be without consideration.”
    A rule was granted, and on its hearing the defendants in the judgment testified that the transaction as to the loan w'as a fair transaction, and that they did not claim any deduction on account of fhe excessive interest.
    The court stayed the execution, and directed an issue to determine :—
    “ 1. What portion of the judgment of the Miners’ Trust Company Bank against James Wren, John T. Noble and Matthew Rhoda was founded on a usurious consideration.
    “2. How much was due on said judgment.
    “ As the facts were not in dispute, and were all in evidence before the court, the counsel for the plaintiff thought a trial unnecessary, and before the filing of the order directing an issue, requested that it be dispensed with, and denied as a matter of law the right of Mr. Roseberry, or of those whom he represented, or of any one but the borrower himself to raise the defence of usury.”
    On the 13th of July 1874, the court, Pershing, P. J., directed that the fi. fa. on the judgment “be restricted to the collection of the sum of $12,750, with interest thereon and costs, so far as it is attempted to collect said judgment by levy and sale of the real estate sold by the assignee in bankruptcy of James Wren to John W. Roseberry.”
    The plaintiffs in the judgment took a writ of error, and assigned for error,
    1. Deciding that, the right to set up a defence of usury can be exercised by the purchaser of land bought subject to the lien of a judgment.
    2. Deciding that a purchaser of land, subject to the lien of a judgment at the time of his purchase, may object to and resist the payment of that part of the judgment which is shown to be usurious.
    3. Deciding that the defence of usury may be raised by others than -the borrower himself.
    4. Deciding that the interest of James Wren in the contract of borrowing the money by James Wren & Oo. extended to the whole amount of the alleged usurious interest; that he alone had a right to deduct the whole amount thereof, which right became vested in John W. Roseberry, when in fact Wren was a partner to the extent of one-half thereof only; James Wren assigned the whole of his property to his assignee in bankruptcy, who legally represented the interest of his creditors as to the right of deduction, unless the prior agreement of dissolution vested the exclusive right in Noble and Rhoda.
    5. In restricting the fi. fa. to the collection of the sum .of $12,750 out of the real estate sold by the assignee in bankruptcy of James Wren to John W. Roseberry.

      F. W. Hughes and B. W. Gumming (with whom were J. W. Bickel and Gr. F. Farquhar), for plaintiffs in error.
    — A purchaser of land sold by an assignee in bankruptcy cannot deduct any usury from a judgment subject to which the land -was sold : Hauer’s Appeal, 5 W. & S. 473. The Act of May 28th 1858, sect. 1, Pamph. L. 622, 1 Br. Purd. 803, pl. 1, confines the remedy to the borrower or debtor: Heath v. Page, 13 P. F. Smith 108. None but the borrower can avail himself of the defence of usury : Cole v. Savage, 10 Paige 583; Williams v. Tilt, 36 N. Y. 319. The purchaser having purchased subject to the judgment, that is part of the purchase-money, he is therefore bound to pay it: Hartley v. Harrison, 24 N. Y. 171; Post v. Bank of Utica, 7 Hill 391.

      J. W. Byon (with whom was J. W. Roseberry), for- defendant in error.
    — An usurious security is void both against the borrower and all claiming title under him to the property affected by the usurious contract: Ord on Usury 131; Lloyd v. Scott, 4 Pet. 205; Cole v. Savage, 10 Paige 583; Jackson v. Dominick, 14 Johns. 435; Dix v. Van Wick, 2 Hill 522; Berdan v. Sedgwick, 44 N. Y. 626; Carrow v. Kelly, 59 Barb. 239; Cummings v. Evir, 2 Halst. Ch. 73; Fisher v. Kahlnan, 3 Phila. R. 213; Greene v. Tyler, 3 Wright 361; Bachdell’s Appeal, 6 P. F. Smith 386 ; Hartman v. Danner, 24 Id. 36 ; Duquesne Bank’s Appeal, Id. 438.
    May 8th 1876.
   Mr. Justice Mercur.

delivered the opinion of the court,

The Act of 28th May 1858 made a radical change in the consequences flowing from the receipt of more than six per cent, interest per annum. It repealed all former laws imposing a penalty. The first section still makes six per cent, the lawful rate of interest. The second section recognises the actual business wants, habits and customs of the people. It assumes a greater rate may be charged and paid. It therefore declares, that if it shall be reserved or contracted for, the debtor shall not he required to pay the excess. At his option he may retain and deduct it from the amount of his debt, or if he has voluntarily paid the whole debt and an excess of interest, he may recover such excess by action instituted not more than six months after the payment. No longer can a stranger to the transaction, by a qui tam action, make a forfeiture of the whole debt. The statute professes to deal only with the parties to the proceedings. The debtor may elect whether he will withhold the excess, or recover it back within the time limited. Failing to act in time he has no remedy. No public informer can interfere either before or after the payment. The defendants in the judgment in question testify that they have no cause of complaint and desire it to be paid according to its terms.

In the distribution of a fund, judgment-creditors may attack a judgment collaterally when it is a fraud on them, but not because it is a fraud on the debtor: Dougherty’s Estate, 9 W. & S. 189 ; Lewis v. Rogers, 4 Harris 18 ; Thompson’s Appeal, 7 P. F. Smith 175. But a subsequent judgment-creditor cannot set aside a prior judgment merely because it is erroneous : Hauer’s Appeal, 5 W. & S. 473.

In Greene v. Taylor & Co., 2 Wright 361, it was held competent for a second mortgagee to question in a distribution the first mortgage on the ground of usury. In this case, however, the transactions were prior to 1858, and the lien of the second mortgage attached before judgment was confessed on the first mortgage. In Bachdell’s Appeal, 6 P. F. Smith 386, without discussing the question, it was held that a judgment-creditor, on distribution, could question the validity of a prior usurious judgment, and reduce it accordingly. But in Verner v. Carson, 16 P. F. Smith 440, it was questioned and left undecided, whether any but the borrower or debtor can set up the defence of usury under the Act of May 28th 1858. In Good v. Grant, 26 P. F. Smith 52, it was held the payment of interest in excess of the legal rate is not necessarily fraudulent as to creditors. Whenever the usurious contract is intended to defraud creditors, or when the circumstances of the debtor are known to be such that it can reasonably be presumed that this will be the natural effect, the right of creditors to postpone the excess of interest must be conceded. We are aware that the New York authorities go much further in regard to usurious contracts than any cases we have cited. But they are predicated of their statute, which makes the contract void. It is radically different from our statute of 1858. We, therefore, are unwilling to give those authorities a controlling effect in the construction of our statute.

There is, however, another view of the case, which we think decisive. This is not a ease of distribution. The defendant in error does not claim as a creditor. He claims as a purchaser at a sale made several months after the entry of the judgment. He bought with full notice of its existence. He knew that he bought subject to its encumbrance. Presumably, he paid a sum equal to the amount of the judgment, less than he would otherwise have done. He wTas not defrauded. He got just what he purchased. When an interest is subsequently acquired by a third person, with his eyes open, he is hot defrauded by what has been done before his time:" Hauer’s Appeal, supra. If any persons were injured by this judgment, it was the creditors, not the purchaser. He is in no condition to invoke their equities and claim under them, for his exclusive benefit. There is no privity of contract between him and them. We think, therefore, the learned judge' erred in restricting the plaintiff to the collection of a part only of the judgment out of the real estate sold to the defendant by the assignee, and the order must be reversed. This makes it unnecessary to consider the fourth assignment. So far as the other assignments apply to this case they are substantially affirmed.

Decree reversed and order vacated at the costs of the appellee.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Thompson versus Commonwealth ex rel. Althouse et al. Barlow versus Same.
    1. By Acts of Assembly Althouse and others were appointed commissioners to lay out, &e., a state road in Porter township, Schuylkill county, to be constructed at the expense of persons occupying lands contiguous to the road ; they were directed, in place of the supervisors, to take charge of the opening aud construction of the road and to receive the road tax from the collectors and county treasurer, to issue certificates of indebtedness to persons advancing money towards constructing the road, to be paid from the road tax. The road was constructed and such certificates were issued. Thompson, the township collector, received §1831 from persons at whose expense the road was to be made. Afterwards an act repealed the part of the acts by which the r.oad was to be made at the expense of the persons occupying the land, and the taxes, &c., were to be received by the commissioners. Held, that the office of the commissioners was abolished and they had no authority to collect the taxes, &c., from the township collector.
    2. The repeal did not affect the contracts of those advancing the money on the pledge of the fund appropriated to pay the certificates.
    3. The commissioners were municipal agents subject to be removed by the repeal of the law under which they were appointed.
    4. The remedy of the certificate holders was by suit against the township supervisor and treasurer and by mandamus against the county treasurer.
    5. Where the remedy is essential to the contract, which cannot" be executed without it, the legislature cannot take the remedy away; but may change the public agent who receives and pays out the money.
    6. The commissioners were not trustees, having no fund of which they were custodians; the township being the debtor to the certificate holders.
    7. Philadelphia v. Pox, 14 P. P. Smith 169, recognised.
    March 7th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Pa,xson and Woodward, JJ.
    Writs of error to the Court of Common Pleas of Schuylkill county: Of January Term of 1875, No. 232, 233.
    The proceedings in each of these cases arose on a mandamus issued at the relation of Daniel B. Althouse, Preston Miller and W. W. Jones.
    In No. 233 the mandamus was against David P. Thompson, treasurer and collector of Porter township.
    In No. 232 the mandamus was against Daniel Barlow, treasurer of Schuylkill county.
    The petition in the case of Thompson was filed June 9th 1873. It set forth that by an Act of Assembly “ for making a state road in the counties of Schuylkill and Dauphin,” passed April 7th 1868 (Pamph". L. 738), the petitioners were “ appointed commissioners to examine, view, lay out aud mark” a state road to commence near the Keffer tavern in Porter township, Schuylkill county, and to run westwardly to the town of Williamstown in Dauphin county; that by the 3d sect, of the act it was provided that the road “ should be opened and constructed by the commissioners and at the expense of the individuals or companies owning or occupying lands through, or contiguous, or adjacent to which the said road shall be laid out; and this to embrace also in said Porter township, all the lands north of the road up to the north line of said township. Provided, that no such individual or company shall be compelled to pay or contribute for that purpose, any further quota or other sum, than such road taxes as are or may be assessed, at the rate and in common with the lands and property of others in the respective township, upon the lands aforesaid, or the property thereon. But that all road taxes now due, or which may be thereafter assessed upon such lands, and the property thereon, by the' supervisors of the respective townships in which such land lies, shall together with such other sums as may, for that purpose, be advanced by the said individuals or companies, and which sums advanced shall be credited on account of road taxes that may thereafter be assessed upon such lands and property, be appropriated and applied by the supervisors of the respective townships, to the opening and construction of the said state road, and to no other purpose, until said state road shall be in good order for travelling with carriages and vehicles.”
    That by a supplement to the act passed February 27th 1872 (Pamph. L. 171), the “ commissioners or a majority of them, were further empowered, &c., in the place and stead of the respective township supervisors, to take the charge of, and carry through, the opening and construction of the said state road, in said act mentioned, and for this purpose authorized to contract for the opening and constructing, within a reasonable time, of so much and such parts of said state road as were not then opened, &c., * * * and receive from the township road tax collectors and county treasurers, all moneys dérived from taxes then paid, or thereafter to come into their hands, and any money advances that may be made by individuals or companies, which are applicable under the said act to the opening and constructiou of the said road, and shall use and pay out the same in repaying any expenses incurred, or advances, or outlays heretofore made by any individual or company for the purpose, and towards making the road under their contracts therefor aforesaid and otherwise. And any individual or company liable to the expense therefor, under said act, who has theretofore advanced or expended any sums, or shall thereafter advance to said commissioners, or a majority of them, any sums to and for the opening and construction of the road any portion or piece thereof, shall receive from the commissioners, or a majority of them, a certificate of the sums so advanced or expended; and each and all of such sums shall be repaid on each such certificate with interest, through and by means of all the road taxes which are in and by said act directed to be appropriated and applied to the opening and construction of the said state road, either by said commissioners receiving and paying over the road taxes on said certificate, or by the road supervisors or collectors of road taxes in the respective toAvnships, crediting the taxes as they are thereby required to do from time to time, and as requested by any individual or company whose lands are liable on any such certificate or certificates, or by both such methods, until all such certificates are paid off and the road is completed.”
    “ That in the year 1869, the petitioners laid out and marked the state road upon the ground from Keffer tavern to Williamstown, and have also let by contract nearly the whole unopened portion of said state road, which was made under said contract; that the state road is now completed, opened and made the whole length included within the contracts to Williamstown aforesaid, and the public is now using the same. That for the purpose of constructing and opening said state road and paying the contractors therefor, the petitioners borrowed a large amount of money upon certificates or obtained an advance of large amounts of money for the purpose of making and opening said road, for which they gave certificates of the sums so advanced accordingly, and that there is now outstanding and unpaid a large number of said certificates which amount to $25,000 or thereabouts.”
    They further represented that “David P. Thompson is the collector of the road taxes and treasurer for the said township of Porter, for the year 1872 and 1873, and during that time he, the said David P. Thompson, has collected in cash a large amount of taxes Avhich is applicable to the payment of the aforementioned certificates, and which amount * * * he now has in his hands, and which was collected * * * from and upon the lands and other property which were appropriated by the said Acts of Assembly, for the making and opening of said state road, and subject to the redemption of the certificates aforesaid, and which said taxes * * * it was his duty to pay over to the petitioners according to the Acts of Assembly aforesaid. * * * The petitioners, prior to the filing of this petition, demanded of the said David P. Thompson that he pay over to them all the moneys collected by him from taxes assessed upon the lands and property or otherwise appropriated to the making of said state road, yet he has, in violation of his duty, neglected and positively refuses to pay over the same to the petitioners, * * * and that by reason of the premises and said refusal, the petitioners have suffered damages and have no specific legal remedy therefor.”
    They prayed for a mandamus to Thompson, commanding him to pay over the taxes, &c.
    An alternative mandamus was issued, to which Thompson answered (June 28th 1873), that the suggestion was improperly made by the commissioners, it should have been by an officer of the Commonwealth authorized to prosecute for public wrong ; that the relator had an adequate remedy at law other than mandamus, and that the Acts of 1869 and 1872 were unconstitutional; he set out the grounds of their unconstitutionality in a number of specifications.
    On the 9th of June 1874 (Pamph. L. 306), an Act of Assembly was approved providing:—
    “That the third section of the act, entitled ‘ An act for the making of a state road in the counties of Schuylkill and Dauphin,’ approved the seventh day of April, Anno Domini one thousand eight hundred and sixty-nine, and the supplement to the said act, approved the twenty-seventh day of February, Anno Domini one thousand eight hundred and seventy-two, be and the same are hereby repealed.”
    On the 17th of December 1874, the relators filed a replication not necessary to set out.
    On the 29th of December 1874, by leave of the court the respondent filed an additional answer, setting out the Act of June 9th 1874, and averring,
    “ That by force and the effect of the said Act of Assembly, the said relators have no further right or power to collect or receive, even by the terms of the aforesaid Acts of Assembly, any moneys from any person or persons, officer, taxpayer of the said township, raised or collected as road taxes assessed upon any of the lands or owners or occupiers thereof, in the said township of Porter.”
    The petition in the ease of Barlow was substantially the same as in Thompson’s case.
    He answered,
    “ That it is true that he has in hand certain taxes or moneys to the amount of $2652.50, which he was willing and ready to have paid to the complainants, upon demand, for the purposes named in their said bill; but that before or about the time that complainants made demand upon him for said moneys, a certain person— a Mr. Thompson by name — claiming to be an officer of and to represent said township of Porter, called at his office and gave notice that the moneys aforesaid should not be paid to the complainants, but to the treasurer of said township, alleging that the functions of the said complainants, as commissioners as aforesaid, had ceased by the repeal of the Acts of Assembly of 1869 and 1872, referred to in complainants’ bill, by the passage of the Act of June 9th 1874. And this defendant stands ready to pay said moneys to either of the said parties claimant, whenever and as the court shall decide and direct.”
    The relators replied that the Act of 1874 was unconstitutional.
    The case was heard on the petition, answers and replication.
    The Court of Common Pleas, on the 15th of March 1875, awarded a peremptory mandamus, -Pershing, P. J., delivering the opinion, and saying as to the Act of 1874:—
    * * * “ The law in this case directs the relators to receive from the defendant, as tax collector, certain taxes. The duty on the part of the respondent to pay them is purely ministerial, and we can find no sufficient reason -why he should not perform it, unless he is exonerated by the Act of Assembly passed June 9th 1874. This act repeals the 3d section of the Act of 7th April 1869, and the whole of the supplemental Act of 1872. It leaves in force the 1st and 2d sections of the original act, by which the relators were appointed commissioners for laying out this state road, but strips them of the power to make contracts for the making of the road, issuing certificates of indebtedness, and receiving from the tax collectors and county treasurer certain taxes to be used in the payment of certificates issued by them. The effect of this repealing statute upon the present legislation was argued at length. It was passed after the present proceeding was instituted in court, and of course after the commissioners had issued the certificates mentioned in their suggestion. If the repealhas the effect claimed for it by the respondent, then the holders of these certificates have no remedy by which they can enforce their payment. We have had little difficulty in coming to the conclusion that the repealing Act of June 9th 1874 cannot affect certificates issued prior to that date. Where one statute is repealed by another statute, acts done in the meantime, while it was in force, shall endure and stand and be good and' effectual: Dwarris on Statutes *675. It is settled by a long roll of cases, that the legislature may vary the nature and extent of remedies, as well as the times and modes in which these remedies may be pursued, but the abolition of all remedies, by a law operating in preesenti, is an impairing of the obligation of the contract, and therefore unconstitutional. The laws of the state in force at the time are a part of the law of the contract as to rights and remedies without any express agreement by the parties. These rights'’are annexed to the contract at the time it is made, and form a part of it, and any subsequent law impairing the rights thus acquired impairs the obligations which the contract imposes: Bronson v. McKinzie, 1 How. 311. A good illustration of this point is furnished by the case of Woodruff v. Trapnall, 10 How. 190.( In 1836 the state of Arkansas chartered a bank the whole capital of which belonged to the state. The 28th section made the bills and notes of the bank receivable for debts due the state. In January 1845 the 28th section was repealed. It was held that the notes of the bank in circulation at the time of the repeal were not affected by the repeal, and that a tender in 1847 of notes issued prior to the repeal in-1845 was good to satisfy a judgment against a debtor obtained by the state. In Howard v. Bugbee, 24 How. 461, it was held that a statute which authorized the redemption of mortgaged premises in two years after a sale under a decree, by bond; fide creditors of the mortgagor, was void as to sales made under mortgages executed prior to the statute.

      “ In the Hickory Tree Road, 7 Wright 139, a road view was presented and confirmed nisi by the court, after which the road law under which it was made was repealed. This left no remedy for damages. The Supreme Court held that the final confirmation of the road, and proceedings to assess damages, must go under the old law as though it had not h.een repealed.
    “ To take away by legislative act the' existing remedies for enforcing the obligation of the contract, so as to .leave the creditor without redress, would be. a mockery of justice, and repugnant to the Constitution of the United States. The better doctrine is that all effectual remedies affecting the interest and rights of the owner, existing when the contract was made, became an essential ingredient in it and are parcel of the creditor’s right, and ought not to be disturbed: 1 Kent *419, note. As hearing on this branch of the case, we might refer to Fletcher v. Peck, 6 Cranch 87; Green v. Biddle, 8 Wheat. 1; Quackenbush v. Danks, 1 Denio 128 ; Billmeyer v. Evans, 4 Wright 324.
    “ As the result of a careful examination of this case, we are compelled to decide that the answer of the respondent is insufficient, and we therefore award a writ of peremptory mandamus a'gainst him.”
    The respondents-severally took writs of error and specified a number of errors ; the 12 th was :—
    The court erred in not holding that the repealing act of the 9th of January, A. D. 1874, deprived the relators of any authority to act in the collection of taxes for the payment or crediting on account, of said certificates, and in not holding that they no longer existed as public officers'.

      W. JR. Smith and F. W. Hughes, for plaintiffs in error.

      Q-. JR. Kaercher and J. W. Ryon, for the Commonwealth, defendant in error.
    — The proceedings against David P. Thompson ■were pending at the time of the passage of the Aot of 1874, and were, consequently not affected by the said act. When a law is in its nature a contract; when absolute rights have vested under that contract; a repeal of that law cannot divest those rights; a grant is a contract within the meaning of the constitution : Fletcher v. Peck, 6 Cranch 87 ; Woodruff v. Trapnall, 10 How. 190 ; Paup v. Drew, Id. 218; Green v. Biddle, 8 Wheat. 1; Hinkley v. Marean, 3 Mason 88; Bronson v. McKinzie, 1 How. 316 ; Howard v. Bugbee, 24 Id. 461; Aspinwall v. The County of Daviess, 22 Id. 365; Erie Railroad Co. v. Casey, 2 Casey 287 ; Billmeyer v. Evans, 4 Wright 324; Breitenbach v. Bush, 8 Id. 313 ; Clark v. Martin, 13 Id. 299; Ohio Life and Trust Co. v. Debolt, 16 How. 432; Gelpcke v. The City of Dubuque, 1 Wall. 175.

      October 9th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

Althouse, Miller and Jones, the defendants in error, were authorized by an Act of Assembly, passed on the 7th of April 1869, designating them as commissioners for that purpose, “ to examine the ground for, and view, lay out and distinctly mark upon the best ground, and to the best public advantage, a state road,” in Porter township, Schuylkill county. The third section of said act provides, “that the state road shall be opened and constructed of the width fixed therefor by the said commissioners, not exceeding fifty feet, and at the expense of the individuals and companies owning or occupying lands through or contiguous ór adjacent to which the said road shall be laid out,” &c. The commissioners accepted the appointment, and proceeded to lay out a road in accordance with the terms of said act. No movement was made, however, towards its construction. On the 27th of February 1872, the legislature passed another act by which the same commissioners, or a majority of them, were authorized and directed, in the place and stead of the township supervisors, to take the charge of and carry through the opening and construction of the said road. They were also authorized to receive from the township road tax collectors and county treasurers, all taxes already paid in, or hereafter to come into their hands, and any money advances that may be made by individuals or companies which are applicable under the said act to the opening and construction of the said road. They are also authorized to grant certificates of indebtedness to any individual or company advancing money towards the construction of said road, and “ each and all of such sums shall be repaid on each such certificate with interest, through and by means of all the road taxes which are in and by the said act directed to be appropriated and applied to the opening and construction of the said state road, either by said commissioners receiving and paying .over said taxes on such certificates, or by the road supervisors or collectors of road taxes in the respective townships, crediting the taxes as they are hereby required to do from time to time, and as requested by any individual or company," whose lands are liable on any such certificate or certificates, or by both such methods, until all such certificates are paid off and the road is completed.” Shortly after the passage of this act, the commissioners proceeded to the construction of between three and four miles of this road. It appears to have been done at a large expense, and certificates of indebtedness to a considerable amount were issued to individuals or companies for money advanced in the construction of the road. David P. Thompson, one of the plaintiffs in error, is the treasurer and collector of the township of Porter, and since the passage of said last-mentioned act, has collected road taxes to the amount of $1831, from the individuals and companies at whose expense it is claimed said road is to be opened and constructed, under said Acts of Assembly. Upon the application of the commissioners the court granted a writ of peremptory mandamus against the township treasurer, requiring him to pay over the said sum of money to the said commissioners. Prior to this application of the commissioners to the court below, to wit, on the 9th day of June 1874, the legislature passed an act by which the third section of the Act of 27th of April 1869, and the whole of the Act of February 27th 1872, were repealed. This swept away all legislation providing for the construction of the road, and at the same time abolished the office of the commissioners, and raises the really important question in this cause, whether the holders of the certificates can enforce their rights through commissioners who have no longer a legal existence; who are functi officio. It must be conceded that this repeal did not affect the contracts of those advancing money on the pledge of the fund appropriated to the payment of their certificates. That was beyond the power of the legislature. But the repeal carried with it the office of the special commissioners, who merely exercised a part of the functions of the municipality. Their office being repealed, clearly they are not entitled to receive the money. They were mere municipal agents, subject to be removed by the repeal of the law which brought them into existence to perform merely municipal functions. The general road laws make ample provision for the construction of roads, collection of taxes, payment of debts and contracts, and all that is necessary to fulfil the obligations of the township in regard to the road or the creditors. On the repeal of the special commission, these duties fell back into the hands of the township officers. There is nothing to prevent the payment of the certificates as debts, or the crediting of the taxes upon them. The holders have, by their contract relation, the same right to demand payment out of the moneys collected for road taxes, or any surplus money on hand, and to have credit for their own taxes ; the remedy for the latter being in their own hands, to retain the taxes nolens volens. Under the constitutional provision forbidding the impairing of contracts, they were, as to all these matters, unaffected by the repeal; and their remedy against the township is ample by suit, and against the township supervisors and treasurer, and the county treasurer, by mandamus. The commissioners were but mere agents to receive and pay over the money to them, and if they failed or refused, the remedy of the certificate holder was the same only against them.

Being but mere municipal agents or officers for a special purpose, these commissioners were liable to be changed at the will of the law-making power. It would be a dangerous doctrine to hold that the officers, general or special, of a petty municipality like Porter township, were above the power that created them. The commissioners were but creatures of the law. They had no official life until it was breathed into them by the legislature, and the breath that created them can blow them away. It might as well be argued that the municipal officers of a city, township, borough, or county, could not be changed by law, and a new system of offices introduced, because the city or other municipality had contracted debts, or issued bonds, warrants or certificates. No one doubts the power of the legislature to repeal a municipal charter, or to divide or consolidate townships or counties, excepting so far as special legislation is forbidden by the new Constitution: Dillon on Municip. Corp., sect. 30, and note; Borough of Dunmore’s Appeal, 2 P. F. Smith 374. It was said by our brother Sharswood, in City of Erie v. Erie Canal Co., 9 P. F. Smith 177, that “the charter of a municipal corporation is not a contract within the protection contained in the prohibition of the Declaration of Rights against laws impairing contracts.” How much less in the protection afforded by the Constitution is a mere temporary commission, created to perform a function of a municipal corporation.? If the principal body be not protected against répeal, how can a mere member of it be entitled to a greater sanctity ? This subject was discussed most elaborately in the case of John B. Butler and others, Canal Commissioners, v. Pennsylvania, 10 How. 402. “The contracts (says Justice Daniel), designed to be protected by the tenth section of the first article of that instrument (the Constitution), are contracts by which perfect rights, certain, definite, fixed private rights of property are vested. These are clearly distinguished from measures or engagements adopted or taken by the body politic or state government for the benefit of all, and from the necessity of the case to be varied or discontinued, as the public good shall require.” After showing the inconvenience of any other doctrine, which would perpetuate bad government, he says: “ It follows then, upon principle, that in every perfect or competent government, there must exist a general power to enact and to repeal laws, and to create and change or discontinue the agents designated for the execution of those laws.” In Bank v. Knoop, 16 How. 369, 380, Justice McLean re-states these principles with equal force. The office of these commissioners is not essential to the remedy of the creditors. The township is the principal, and the commissioners mere agents, to receive and pay over money collected by and in the hands of its official custodian. The collectors receive and the treasurers hold the money. The duty of paying it over can as well be performed by the township officers as by the special commission. If the office of the commission cannot be repealed, the consequence must be that these commissioners may hold on after the repeal of their office until the last certificate be paid, whether it be one year or twenty years. On what principle can the creditors, if they were parties, which they are not, stay the hand of the legislature in merely changing the municipal agents ? If they can, no matter what objection lies to these men — they may be dishonest, insolvent or incompetent; their office may be obnoxious, hurtful or inconvenient, yet they cannot be displaced so long as one certificate is outstanding. This doctrine is without support in reason or authority, and its assertion would be as unsafe as it is novel. The principle is not denied that when the remedy is a part of the contract it cannot be taken away, but this, as all the authorities agree, is where the remedy is essential to the contract, and the latter cannot be executed without it. But legislation which simply changes the public hand which receives and pays out, does not interfere with the remedy.

It was urged, that though the office of the commissioners is repealed as to the public, that to the extent of the certificates for advances, they may be viewed as trustees who cannot he dis- • placed. Trustees of what ? There is no fund of which they are the custodians. There are no securities as to which they hold the legal title in trust for certain beneficiaries. The certificate holders have a claim against the township. The township is their debtor to that extent, with certain of its revenues pledged by law. for the payment of the debt. Here is simply, the relation of debtor and creditor, such as frequently exists between municipal corporations and its creditors. An examination of the Act of 1872 shows that no such special character was intended to be conferred upon these commissioners. They were “ authorized and directed in the place and stead of the supervisors, to take charge of and carry through the opening and construction of the state road in said act mentioned, and for this purpose forthwith to contract for the opening and construction,” &c., &c. “And to superintend and urge through the faithful performance of such contract and opening and construction of said road.” They were to receive and disburse taxes, and advances of money, as already stated. Here were public duties which the supervisors would have performed but for the substitution of the commissioners; they were in fact a portion of the duties of the township supervisors specially delegated to and conferred by the act upon these commissioners. The duties which they owed to the certificate holders were a part of their public duties as officers or agents of the township. They were no more the private trustees of the holders of the certificates, than supervisors, treasurers, or other municipal officers, are trustees for the creditors of their respective municipalities. They do not claim in the character of private trustees. The proceedings show that the claim set up at bar is for the public money to construct the road, and is based upon the continued existence of their office as commissioners. They make no special application on behalf of the certificate holders, and if they did, how could they divide the money collected generally between the work of construction and that of payment to the certificates ?

It is clear there is no private trust here. If there is any trust at all, it is only such as attaches to them as agents or officers of the township, and the trust itself is of a public nature, and for the public benefit. That trustees of this character may be removed has been expressly decided. Philadelphia v. Fox, 14 P. F. Smith 169, is a case directly in point. In that case a large number of trusts were held by the city of Philadelphia for charitable uses, the most noticeable of which was the one created by the late Stephen Girard. In 1869, an Act of Assembly was passed taking the direct control of these trusts from the city as trustees, and giving it to a board of fifteen persons, twelve of whom were to be appointed by the courts. This case was argued in this court by very eminent counsel, and evidently decided with great care. It was held that the trusts were charities ; that all charities are in some sense public ; that it was not competent for a mere municipal organization, which is made a trustee of a charity, to set up a vested right in that character to maintain such organization in the form in which it existed when the trust was created, and thereby prevent the state from changing it as the public interests may require, and that the Act of Assembly authorizing the judges of the courts to appoint trustees for the trust, under the wills of Stephen Girard and others, was constitutional. This branch of the case does not need elaboration. We are of opinion that these commissioners were mere officers or agents of the township; that the repealing Act of 1874 is constitutional, and as a legal deduction, that the office is now abolished. The commissioners having no longer a recognised legal existence, they have no standing in court, and no right to a mandamus against the plaintiff in error.

What has been said renders it unnecessary to discuss separately the case in which Barlow, county treasurer, is the plaintiff in error. The cases rest upon similar principles, and the same judgment will be entered in each.

The order and judgment of the court below awarding a writ of peremptory mandamus is reversed and set aside.


author: Mr. Justice Sharswood

text:
    Lantz versus Boyer, Administrator, &c., of Boyer.
    1. Boyer devised a house and lot to his wife for life, and directed, if she “ should so desire and my executors deem it for the best interest of my wife and children that the property should be sold, they may sell the same,” make proper deeds to the purchasers, invest the proceeds and pay the interest to his wife for life. After other devises, &c., he gave the residue of his estate “ to be distributed between my wife and children, according to the laws of this Commonwealth.” The executors were discharged, after which on the request of the wife, the administrator e. t. a. sold the property. Held, that he could make a good title.
    2. Whenever power is given by will to executors to sell real estate with a view to distribute the proceeds among legatees, the power belongs to them viriute officii, and under the Act of February 24th 1834, sect. 67, it may be exercised by an administrator c. t. a.

    3. This is so whether there be an absolute direction so as to work a conversion or the power be discretionary; and whether the distribution is to be immediate or upon the expiration of a certain time, or upon the uncertain contingency of a life or lives.
    4. The wife’s share after her death would be part of the residue, and the distribution was to be made by the executors viriute officii; this duty devolved on the administrator c. t. a., who was entitled to invest and hold, the fund until the time of distribution.
    5. Evans v. Chew, 21 P. F. Smith 47, recognised.
    March 8th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1876, No. 228.
    This was an amicable action and case stated, filed February 28th 1875. Jerome L. Boyer, administrator c. t. a. of B. Frank Boyer, deceased, was plaintiff, and C. B. Lantz defendant.
    The facts agreed on by the case were as follows:—
    B. Frank Boyer, the deceased, died on the 28th of September 1873, seised of a messuage, a lot of ground on Penn street, in the city of Beading, being 35 feet front and 270 feet deep. He left a will, dated June 6th 1872. Amongst other provisions were the following:—
    “ Item. I give and devise unto my said wife my real estate in Penn street, between Tenth and Eleventh streets, in which I now reside, containing in front on Penn street 35 feet, and in depth 270 feet, together with all the improvements now erected thereon, or which I may hereafter erect thereon. She to have and to hold the same for and during the term of her natural life. This real estate to be cleared of all encumbrances.
    “ In case my said wife should so desire, and my executors should deem it to be to the best interest of my wife and children that my Penn street property should be sold, they may sell the same; and for this purpose I do authorize and empower them to sign, seal, execute and deliver unto the purchaser or purchasers, all such deed or deeds as may be necessary to assure unto them a fee simple title thereto, and the proceeds of such sale shall be by them invested in good real estate security, the interest whereof shall be paid to my said wife during life; but in case she should desire it, my said executors shall purchase for my said wife a house wherever she shall select the same, the price of which however shall not exceed the sum of $10,000, of which she shall then have the use, &c., during life; such house to be purchased only in case the Penn street property is sold, and then only if my wife desires them to do so. * * * *
    “ Item. As to all the rest and residue of my estate, real, personal or mixed, it is my will that the same be distributed between my wife and children according to the intestate laws of this Commonwealth.
    “ And I do hereby nominate and appoint my two friends, George E. Baer and Michael Haak, executors of this my last will and testament.”
    George E. Baer and Michael Haak, the executors named in the will, accepted the trust, and on the 25th day of January, A. D. 1876, were, upon their own petition to the Orphans’ Court of Berks county, having first filed their accounts, which were duly confirmed, discharged from said trust. On the same day letters of administration cum testamento annexo de bonis non were granted to Jerome L. Boyer.
    On the 27th day of January, A. D. 1876, Lizzie Boyer, the widow,’made the following request: — ■
    “ Whereas my husband, B. Erank Boyer, Esq., late of the city of Reading, died seised in his demesne as of fee of a certain house and lot'of ground, No. 1033 Penn street, in the city of Reading aforesaid, and left a will and testament, in and by which he provided, inter alia, as follows, viz.: (stating the clause as to the sale of this property on her desire.)
    “ Now, therefore, I, Lizzie Boyer, widow of the said B. Erank Boyer, deceased, do hereby express my desire that the aforesaid property be sold, and do request Jerome L. Boyer, to whom, upon the discharge of George E. Baer, Esq., and Michael Haak, the executors named in said will, letters of administration cum testamento annexo de bonis non were granted, to sell the aforesaid property under and by virtue of the provisions of the will aforesaid.”
    1'n consequence of the foregoing request the said Jerome L. Boyer advertised said house and lot of ground for sale (as No. 1) on the 19th of February, A. n. 1876, and on said last-mentioned day sold the same to C. R. Lantz, the defendant, for $16,000.
    One of the conditions was:—
    “ The purchaser shall immediately after the sale, execute an agreement for the payment of the purchase-money in the following manner, viz.: On property No. 1, $500 forthwith, $5000 on April 1st 1876, $5000 on October 1st 1876, and the balance on the 1st day of January 1877.” * * * *
    Appended to the conditions of sale was the following agreement :—
    “It is hereby declared and agreed, by and between Jerome L. Boyer, administrator, and the vendor of the estate mentioned in the above conditions, and O. R. Lantz, the purchaser, that the said C. R. Lantz has become the purchaser of property No. 1 of the premises so sold, at the sum of $16,000. And that the said conditions of sale shall be taken as the terms of agreement for the said sale and purchase respectively, and be observed and fulfilled by the said Jerome L. Boyer and O. R. Lantz respectively, in all things. As witness our hands this 19th day of February, A. D. 1876.”
    O. B. Lantz refused to pay the $500, which, according to the terms of the agreement, were due and payable forthwith, upon the ground that the said Jerome L. Boyer, administrator as aforesaid, had not the power to vest in him, Lantz, the title to the premises.
    By the case it was agreed:—
    “ If the court shall be of opinion that the plaintiff is competent to vest in defendant the title of B. Frank Boyer, deceased, to the said premises, by deed executed by him in pursuance of the powers in the said will contained, and of said request of Lizzie Boyer, the widow of said B. Frank Boyer, deceased, and for the purposes in said will mentioned, then judgment to be entered for the plaintiff for the sum of $500, but without costs of suit; but if not, then judgment to be entered for defendant, either party reserving the right to sue out a writ of error thereon.”
    The court (Sassaman, J.) entered judgment for the plaintiff for $500, according to the case stated.
    The defendant took a writ of error and assigned so entering judgment, for error.
    <7. Gf. Derr, for plaintiff in error,
    cited Evans v. Chew, 21 P. F. Smith 51; Waters v. Margerum, 10 Id. 44; Ross v. Barclay, 6 Harris 184.

      W. M. Derr, for defendants in error,
    cited Waters v. Margerum ; Evans v. Chew, supra; Chew v. Chew, 4 Casey 17; Reed v. Reed, 9 Watts 263; Keefer v. Schwartz, 11 Wright 509; Commonwealth v. Barnitz, 9 Watts 256.
    May 8th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

It may now be considered as definitively settled, that whenever a power is given by will to executors to sell real estate with a view to the distribution of the proceeds among legatees, such power belongs to them virtute officii, and may be exercised by administrators de bonis non with the will annexed, under the 67th section of the Act of February 24th 1834, Pamph. L. 86, which provides that “ all and singular the provisions of this act relative to the powers, duties and liabilities of executors are hereby extended to administrators with a will annexed:” Evans v. Chew, 21 P. F. Smith 47. It was held in that case, that it mattered not whether there was an absolute direction so as to work an immediate conversion, or the power was discretionary. It seems equally clear tha.t it makes no difference whether the distribution is to be. immediate or upon the expiration of a certain period of time, or upon the uncertain contingency of a life or lives. In the case before us, a life estate was given to the widow, and absolute direction to the executors to sell, if she should desire it, and the proceeds of the sale to be invested in good real estate security, the interest to be paid to the widow for her life, and a part of the principal, if she should desire, to be invested in a house for her use for life. Eventually, however, the testator provides, “ as to all the rest and residue of my estate, real, personal or mixed, it is my will that the same be distributed between my wife and children according to the intestate laws of this Commonwealth.” Now the wife’s share, when her life estate should expire, would certainly be a part of this residue. He makes a common fund of his estate, “ real, personal or mixedand by whom is the distribution to be made ? By his executors, certainly, and that virtute officii. This duty of distribution then devolved of necessity upon the administrator de. bonis non cum testamento annexo. If so, he must be entitled to receive and invest the fund, and hold it so invested until the period of final distribution shall arrive. We are of opinion then that the plaintiff below, Jerome L. Boyer, the administrator with the will annexed of B. Frank Boyer, deceased, is competent to vest in the defendant, C. R. Lantz, the title of B. Frank Boyer, deceased, to the premises, by deed executed by him in pursuance of the powers in the said will contained, and of said request of Lizzie Boyer, the widow of said B. Frank Boyer, deceased, and for the purposes in the said will mentioned.

Judgment affirmed.


author: Mr Justice Gordon

text:
    Hufman’s Appeal.
    1. By the Acts of April 9th 1849 and April 14th 1851 (Exemption), the debtor or the widow must elect to retain real estate under the Act of 1849 ; if they neglect to elect, neither can receive the exemption from the proceeds of the sale of the land.
    2. The Act of 1849 contemplates setting apart real estate for the use of the debtor; and not money arising from its sale.
    3. It is only where the return of the appraisers shows that the land cannot be divided that the debtor is permitted to take money.
    4. A widow by neglecting to demand an appraisement waives her right to the §300 under the Act of 1851.
    5. The Acts of 1849 and 1851 are in pari materia and are to be construed with reference to each other.
    March 8th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Berks county: Of January Term 1876, No. 221. In the estate of Jonathan Hufman, deceased.
    The decedent died in 1873, and administration of his estate was granted on the 18th of March of that year to Margaret Hufman, his widow, and George Hufman. The whole of the personal estate of the decedent was appraised at the sum of $99.25. This the widow in writing claimed should be set apart to her under the Exemption Act of April 14th 1851, § 5, Pamph. L. 613, 1 Br. Purd. 416, pi. 60. The decedent owned also, at the time of his death, a piece of land; and at the time the widow required the personal estate to be set apart to her, she verbally claimed the remainder of the $300 out of the land. There was no appraisement of the land under the provisions of the Act of April 9th 1849, § 2, 1 Br. Purd. 637, pi. 21, nor did the widow ask to have one. The land was subsequently sold by the administrators. They filed their administration account, charging themselves with the proceeds of the real estate, and showing in their hands, after the discharging the expenses of the administration, the sum of $776.50. J. Warren Tyson, Esq., was appointed auditor to report distribution of the balance.
    The claimants before him were the widow, for $200.75, the balance of the $300 exemption, and William Hufman, a judgment-creditor, for $860.95.
    The widow contended that, inasmuch as the real estate consisted of one tract of land, and incapable of division, it was not necessary for an appraisement to be had, but that she could claim the balance out of the proceeds of the real estate.
    William Hufman contended that as there was an appraisement to the widow for a portion of' the exemption, and no claim or demand set forth in it for the balance out of the real estate, she could not claim under the distribution.
    The auditor was of the opinion that an appraisement should have been made of the real estate at the same time when the appraisement of the personal estate was made, or .that the demand for the balance of the $300 should have been inserted in the appraisement made to the widow * * * “ and is constrained to decide that the widow of this decedent cannot take as a distributee as against judgment-creditors without an appraisement.”
    He therefore distributed the balance, $707, in the hands of the administrators, after deducting the expenses of the audit, to William Hufman, the judgment-creditor.
    The widow filed exceptions to the report, which were overruled by the Orphans’ Court, Hagenman, P. J., and it was decreed that the balance on the-administration account, $707, should go to William Hufman.
    Margaret Hufman appealed to the Supreme Court, and assigned the decree for error,

      F. JR. Schell and J. JHJ. Jacobs, for appellant.
    — When the lands of a decedent are incapable of division, the widow’s $300 are payable from the proceeds of sale, although demand was not made before the sale: Lehman v. Dorety, 8 Phila. R. 623.

      W. P. Baird, for appellee.
    — The appraisement is to be the same under the Act of 1849 and under the Act of 1851: Davis’s Appeal, 10 Casey 256; Vandevort’s Appeal, 7 Wright 462.
    If there be no election to-retain real estate or demand an appraisement thereof, it is error to award the debtor his exemption out of the proceeds of sale: Weaver’s Appeal, 6 Harris 307; Hammer v. Freese, 7 Id. 255. The demand for an appraisement must be made before inquisition: Bowyer’s Appeal, 9 Harris 210. If a demand for an appraisement is made upon the sheriff for an appraisement under the Exemption Law, and he refuses, the debtor can recover from him for such refusal: Marks’s Appeal, 10 Casey 36; Compher v. Compher, 1 Id. 31. Claims must be made before sale: Neff’s Appeal, 9 Harris 243; Baskin’s Appeal, 2 Wright 65; Scott on Intestate Laws 173, 174.
    May 8th 1876.
   Mr Justice Gordon

delivered the opinion of the court,

The Act of 14th April 1851 (Br. Purd. 416, Pamph. L. 60) provides, that the widow or children of any decedent may retain either real or personal property belonging to the estate of such decedent to the value of $300, and that it shall be the duty of the executor or administrator. of such decedent to have the said property appraised “in the same manner as provided in the act passed the 9th day of April in the year 1849, entitled, £ An Act to exempt property to the value of $300 from levy and sale on execution and distress for rent.’ ” Turning to the act thus referred to (9th. April 1.849, Br. Purd. 631, Pamph. L. 22), we find that when the property levied upon consists of real estate of greater value than $300, and the debtor elects to retain the whole or any part of the sum exempted, in real estate, the appraisers are to determine whether it can be divided so as not to injure the whole; if their determination is affirmative, they are then required to set off a quantity in value sufficient t.o meet his claim, otherwise they are to make return that the property cannot be divided without injury to or spoiling the whole. In the latter event, upon return of the writ, with the proceedings thereon,' if the creditor proceeds to sell the property, the debtor may receive from the sheriff, out of the proceeds of sale, so much money as he may be entitled to under the exemption laws. But in order to receive the benefit of this act he must elect to retain real estate under its provisions; if he neglects so to do, he cannot come in upon the money raised by the sale. The act contemplates the setting apart for his use real estate, and not money arising from it, and it is only where, by the action of the appraisers, it is shown that the land cannot be divided, that he may be permitted to take money: Weaver’s Appeal, 6 Harris 307. The above doctrine is most emphatically reiterated in Marks’s Appeal, 10 Casey 36. In which case it is said by Thompson, J.: “ The law deals with his demand to have his exemption in land, and he could only take the money in lieu of land, if that amount in value could not be set off to him by the appraisers, -without injury to or spoiling the whole.” In Nyman’s Appeal, 21 P. F. Smith 447, the sheriff had, in his return to the fi. fa., as amended by leave of court, set forth, that at the time of the levy the defendant demanded the benefit of the law exempting $300 worth of property from levy and sale on execution, and claimed the same out of real estate, which consists of an entire tract, and cannot be divided, and he claimed that amount out of the proceeds when sold-.” It was held, however, on the authority of Marks’s Appeal, that, as there had been no appraisement, the debtor could not come in on the proceeds of the sheriff’s sale. So, in like manner, in Davis’s Appeal, 10 Casey 256, it was held, inter alia, that a widow, by neglecting to demand an appraisement, waived her right entirely to the $300 allowed her by the Act of 1851. In that case, it is said, that that act is to receive a construction similar to that given to the Act of 1849;. that the widow’s rights, under the statute, are sub modo only,, that she can obtain the property only in the manner directed by the statute. A similar ruling is found in Neff’s Appeal, 9 Harris 243, wherein it is said by Lewis, J., that the Act of 1851 was intended to give the widow and children what the debtor himself enjoyed in his lifetime under the Act of 1849; that both statutes had relation to the same subject, and differ only in designating the individuals intended to be protected; hence the rule of construction, that statutes in pari materid are to be construed with reference to each other, must prevail in these exemption eases.

Now the facts in the case in hand are, that Mrs. Margaret Hufman, widow of Jonathan Hufinan, deceased, and administratrix of his estate, claimed and had set apart to herself, the personal property of said estate, amounting to $99.25, and though, at the time of the appraisement of the personal property, she claimed the balance of the allowance out of the real estate, she neglected to have a proper appraisement thereof made, on the ground, as the auditor has found, that the realty consisted of but one tract of land, which was incapable of division. She now claims to have this deficit made up to her out of the fund produced by the sale of the land, and that as against creditors. Unfortunately for this claim it comes directly within the purview of the cases above cited and their rulings are fatal to it. She has not qualified herself, under the terms of the statute, to partake of this fund.

An appraisement was the sine qua non of such qualification, and as that does not appear in any of the proceedings submitted to us, her claim must be treated as unfounded and nugatory.

Decree affirmed.


author: Per Curiam.

text:
    Urich versus Merkel.
    1. A devise was “ to my son John and to his heirs all my farm, * * * together with all the buildings * * * farming stock and utensils belonging to the farm, unto the said John and to his heirs.” There were similar devises to other children. The testator further declared that none of his children should sell their land or encuiiber it, “ but the land should remain free for their children or heirs, and my said children shall have the use, income and profits * * * during their lifetime.” He gave his children the right to make wills, so that either of them should “ have privilege to dispose of their several legacies by will, but not otherwise.” Held, that John took but a life estate.
    2. The intention of the testator, gathered from all parts of the will, was to give a life estate, not merely to restrict the devisee’s power over a previously given fee simple.
    March 8th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1876.
    This was an amicable action of assumpsit between Matilda Urich, late Staudt, and Samuel Merkel, commenced February 3d 1873, in which the following facts were agreed to by the parties in a case stated:—
    “ Jacob Staudt, late of Bern township, Berks county, by his will dated on the 23d day of December 1853, and proved on the 3d day of January 1854, devised as follows:—

      “ £Item. I give and bequeath unto my son, John Staudt, and to his heirs, all my large farm * * * containing three hundred acres, more or less, together with all the buildings and improvements, and grain seeded out and grass, and hay and straw and manure, and all timber and posts and rails, together with all the farming stock and the utensils belonging to the farm, unto the said John Staudt and to his heirs.’ ”
    In much the same terms he gave farms to his daughters Catharine, Sarah, Polly and Harriet; and further provided:—
    ££ £ Item. I herewith make known and declare it as my will, that none of my aforesaid children shall have a .right to sell or assign their land or property to them bequeathed as aforesaid; neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs; and they, .my said children, shall have the use, income and profits of the said land and farms during their lifetime. * * *
    ££ £ Item. Whereas, I have ordained in this my will that none of my children shall have a right to sell, nor encumber, nor involve any of the real estate to them bequeathed; but I do hereby give either of my aforesaid children power, authority and the right to make a will and testament, to take effect after their decease, so that either of them, to wit, John, Catharine, Sarah, Polly and Harriet may and shall have privilege to dispose of their several legacies by will as aforesaid, but not otherwise.’
    “John Staudt died intestate in October 1869, leaving a widow, to wit, Matilda Staudt, the plaintiff in this suit, and issue five children * * * all of whom are minors, and have for their guardian Samuel Merkel, the defendant in this suit. Samuel Merkel, guardian, has collected the rents, issues and profits of the real estate devised to the said John Staudt as aforesaid, and claims the right to hold the same in trust for the minor children. The amount in his hands so received at the time the amicable action was entered, was $2011.47 ; one-third of which is claimed by the said Matilda Urich, late Matilda Staudt, as relict and widow of the said John Staudt, deceased, under the intestate laws of this Commonwealth, to wit, $670.49.
    “ If the court he of opinion that Matilda Staudt, widow as aforesaid, is so entitled, then judgment to be entered for the plaintiff: but if not, then judgment to be entered for the defendant.”
    Hagenman, P. J., delivered the opinion of the Court of Common Pleas.
    * * * “ The question then recurs, what interest or estate did Jacob Staudt intend to give to his son John ? By the first clause above mentioned, clearly a fee simple is given. The devise is to him and to his heirs. No stronger expression could be used to carry a fee. But this clause must be taken in connection with every part of the will. The two other clauses have direct reference to the same subject-matter. . Although a fee may be given in a former part of a will, it may be restrained by a subsequent clause so as to convert it into an inferior interest. Indeed a particular estate is more frequently given in this mode than in any other. Where a testator has given a fee, he cannot strip it of its nature and properties, that is, make a fee something else than that which the law recognises as such, but he may restrict the generality of his gift and devise to a less estate.
    “Apart from settled decisions, the Act of April 8th 1833, recognises this power of the testator. It provides that all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or perpetuity, unless it appears by words of limitation or otherwise in the will, that the testator intended to devise a less estate. What, then, was the intention of Jacob Staudt in introducing the above second clause in his will ? The first gave a fee, which is the highest interest that any one can have in lands. The second could give no more. Why, then, insert it, if it was not his intention to limit the estate ? He could have had no other object. He says : ‘ I herewith make known, and declare it as my will that none of my aforesaid children shall have the right to sell or assign their land or property to them bequeathed as aforesaid. Neither shall they have a right to encumber it with debts or liens, but the land shall remain free for their children ; and they, my said children, shall have the use, income and profit of the said land and farms during their lifetime.’ This will was written by a person who knew something of legal terms without understanding their legal import. It is obscure in many of its provisions, and phrases are jumbled together in an incongruous manner. But if we transpose this clause somewhat, we may more clearly get at the intention of the testator. Thus : I herewith make known and declare it as my will that my children shall have the use, income and profits of the said lands and farms, during their lifetime; none of them shall sell or assign, neither shall they have a right to encumber with debts or liens, but the lands shall remain free for their children or heirs. From this it is obvious that a limited estate was only intended to be given. This is made more manifest by the last clause in the will, which contains not only a power of appointment that was never exercised, but a reiteration in the most emphatic manner of such limited estate in the testator’s children. ‘ Whereas, I have ordained in this, my will, that none of my children shall have a right to sell, nor encumber, nor involve any of the real estate to them bequeathed, but I do hereby give either of my said children power, authority and right to make a will and testament to take effect after their decease, so that either of them, to wit: John, Catharine, Sarah, Polly and Harriet, may and shall have the privilege to dispose of their several legacies by will, but not otherwise.’

    • “ It seems clear to us that the testator intended to give only a life estate. We are strengthened in this view by reference to the other provisions of the will made a part of this case stated.
    “ A father was providing for a son and four daughters, two of whom were married. To each of his daughters by name he gave, a farm by separate clauses in his will, and used the same language, in the devise to them that was used in regard to the son. lie had a father’s solicitude for his daughters, and gave them an estate which he intended as a provision for their lives, and in case of their death his patrimony should descend to their children and not be enjoyed by their husbands, strangers to his blood. On behalf of the plaintiff it is claimed, that under the rule in Shelley’s case, John Staudt took a fee simple, and it matters nothing that the creation of a fee through the operations of this rule would defeat the intention of the testator. This position would probably be correct, if the cases of Williams v. Leech, 4 Casey 89 ; Naglee’s Appeal, 9 Id. 89; and McKee v. McKinley, Id. 92, had not been expressly overruled by Guthrie’s Appeal, 1 Wright 9.

      “ This last case recognises the right of the donor to control his gift. In Dodson v. Ball, 10 P. F. Smith 492, the present chief justice reviews the numerous conflicting decisions in our state upon this vexed question, and re-affirms the principle of Guthrie’s Appeal. In Naglee’s Appeal the will is very similar to the one under consideration, and in speaking of it and the other two cases above referred to, Chief Justice Agnew says that Judge Strong was clearly right; for, undoubtedly, upon the terms of the wills in those cases, the words were those of purchase and not of limitation. For the reasons here given, judgment is entered for the defendant with costs.”
    The plaintiff took a writ of error and assigned for error, the entering judgment for the defendant.

      Livingood and Shatter, for plaintiffs in error.

      W. H. Livingood, for defendant in error.
    March 13th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

_ — The principal item in this will which devises to John Staudt a farm in Bern township, certainly would give to him a fee simple. But the intention of a testator when discovered by an examination of all parts of his will must govern. Therefore, when we come to the item defining the power of his children over the estates given to them, we discover plainly that he intended to confer a life estate only and not merely to restrict their power over a precedently-conferred fee simple. The power to devise given in the last item is certainly consistent with the gift of a life estate ; indeed it would be unnecessary had the testator intended John to have a fee simple. We see no error in the conclusion of 4 the learned judge.

Judgment affirmed.