author: Mr. Justice Paxson

text:
    Glading versus Frick.
    1. Where certain instruments of writing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder; and a building contract is valid although recorded in a deed-book.
    2. The Act of April 3d 1872 provides that every building erected under a written contract should be liable to the contractor alone for the work done and materials furnished, provided that such contract was duly recorded within fifteen days of its execution. In a scire facias upon a mechanics’ lien against the owner, the defendant gave in evidence such a contract recorded in the deed-book. It was also admitted that there were certain specifications in the contract which were neither offered in evidence nor recorded. Held, that the plaintiff not being a party to the contract, and it. being offered to establish the immunity of the defendant under the statute, the production of the specifications was not essential; that the recording of the contract itself without these specifications was sufficient, and that it was not improper to record the contract'in the deed-book.
    3. The court below directed a verdict for defendant, subject to a reserved point. The court in banc afterwards entered judgment for the plaintiff on the point reserved, non obstante veredicto. Held, that the more correct practice was to direct a verdict for the plaintiff, as a judgment could not be entered upon a reserved point for plaintiff where the verdict was for defendant.
    January 24th 1878.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term-1875, No. 130.
    Scire facias sur mechanic’s lien by George L. Erick and Michael K. Snyder, trading as Erick & Snyder, against Samuel Glading, owner, and E. Cassell, contractor.
    The claim was filed February 25th 1873, and was for $363, for materials furnished in the erection of a building on Susquehanna avenue, Philadelphia. The facts are sufficiently stated in the opinion of this court.

      II. Sazlehwrst and James D. Bennett, for plaintiffs m error.—
    Glading and Frick not having been parties to the contract, cannot raise the question that it was not properly recorded. Its terms are complied with as between the original parties, and the moment it was recorded, the material-men, for whose protection the Act of April 3d 1872, Pamph. L. 857 (repealed by the Act of March 6th 1873, Pamph. L. 217), was passed, had notice that the building was liable to the contractor alone. The omission to record the specifications was not material. The objection that the contract was recorded in the deed-book is of no avail: McLanahan v. Reeside, 9 Watts 518.

      Joseph O. Ferguson, for defendants in error.
    The specifications were made a part of the contract, and determined the character of the house to be built. They should have been offered in evidence with the contract: Stark, on Ev. 580. They should have been placed on record, so that the material-men might know whether the contractor was making a wise bargain, and whether he could safely be trusted; Jaques v. Weeks, 7 Watts 268; Friedley v. Hamilton, 17 S. & R. 70; Sturtevant's Appeal, 10 Casey 150. Each instrument must be recorded in its proper book, and a deed-book was not a proper place for this contract: Goepp v. Gartiser, 11 Casey 133; Luch’s Appeal, 8 Wright 525.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879.

Wliat the precise ground was on which the verdict was set aside and judgment entered on the point reserved in favor of the plaintiffs below the record does not show. Against the mechanic’s ¡lien of the plaintiffs the defendants set up a written contract between Glading, the owner, and Franklin .Cassel, the contractor, for the erection of the building against which the lien was entered. The object of the evidence was to secure for the owner the benefit of the provisions of the Act of Assembly of 3d of April 1872, that where any building or buildings should'be erected in whole or in part by contract in writing, such building or buildings, and the land or lands whereon it or they shall stand, should be liable to the contractor alone for work done or materials furnished in pursuance of such contract, provided the contract should be acknowledged and duly recorded in the office for recording deeds within fifteen days after its execution. It was agreed at the trial on the part of the defendants that the book of original entries of the plaintiffs was correct; that the materials charged were delivered and used in the construction of the building; and that there were certain specifications for reference by both parties which were not recorded. And it was admitted on behalf of the plaintiffs that the house was not built according to the specifications ; that all extra work had been paid for; and that the contractor had been fully paid.

When it was proposed to give the contract in evidence the plaintiff's objected to it, because “1. The whole contract was not offered, the specifications referred to in it, and made part of it, not being offered with the contract; 2. The whole contract was not recorded as required by the Act of Assembly, the specifications, being a part of the contract, not having been recorded; and 3. The contract was not properly recorded, having been recorded in a deed-book and not in a miscellaneous book.” The paper was admitted, and a verdict directed for the defendants, the question whether the evidence was properly received being reserved by the court for subsequent consideration. Judgment was afterwards entered in favor of the plaintiffs, notwithstanding the verdict for the defendants. It would have been a more correct practice for the court to have directed a verdict for the plaintiffs. The defendants could then have moved for judgment in their 'favor non obstante veredicto. It was held in Robinson v. Myers, 17 P. F. Smith 9, that a judgment could not be entered upon a reserved point for the plaintiff when the verdict was for the defendant, for the reason that such judgment would have no verdict to support it. In the case in hand the admissions, of record by the parties to some extent supply the place of a verdict, and it is possible the judgment might be sustained were-there nothing else in the ease.

Regard being had to the object of the defendants in offering the contract, it is not apparent how that object would have been promoted by accompanying it with proof of the specifications to which it referred. The owner of a lot of land, and the contractor for the erection of a building on it, were the only parties by whom it had been executed. The plaintiffs did not need the omitted evidence, for the accuracy of their books and the use of their materials for the purposes of the defendants had been admitted. The defendants were invoking the protection of the Act of 1872, and proposed to show that the building had been erected under a written contract. Evidence is essential when its production is required to bring out the whole of the special subject of dispute. If it bears upon the point in issue, it is relevant. If the point in issue cannot be determined without it, then its absence is a defect fatal to the case of which it should form a part. The question here was, whether Mr. Glading’s house had been built under a written contract with Mr. Cassell. The question of the compliance by either party with the specifications was between them alone. They were a part of the contract by reference only, and their production could have added no strength to the proof of the principal fact involved. They were not necessary to construe the contract, for the plaintiffs had no such interest as gave them the right to demand its construction. They were not necessary to adjust equities or settle accounts, for they could have exhibited no equities and explained no accounts with which the plaintiffs could have had any concern. The instrument was offered to establish the immunity of the defendants under the statute, and for that purpose the production of the specifications was not essential.

In the second place, it was objected that the contract was not “duly recorded,” because the specifications were not placed on record.' The purpose of the legislature was to afford notice to mechanics and material-men of the existence of a written contract, which would bar their claims against a property on which a building should be erected, and leave them to such remedy against the contractor as they could enforce. This purpose was adequately gained by the record of the contract without the specifications. An inspection of the contract was all that was needed to show the existence of the specifications, which were referred to as being “ in the possession of Solomon A. Kneedler.” Such a reference was enough to put all persons who could be interested upon inquiry. While they formed, as to the immediate parties, essential parts of the contract, they could have no bearing upon agreements into which other parties should afterwards enter. A peculiar state of facts ought to exist to make the recording of auxiliary documents like this indispensable. It is possible to conceive of specifications that would contain plans, drafts or models of a kind to render their transfer to the record impossible, or at least intolerably inconvenient. A contract could provide for the duplicate of a house already built. It might stipulate for tho production of machinery identical with machinery already finished and in operation. And it would in either instance be an instrument no more complete in itself than this instrument. The rule that annuls the effect of an unrecorded agreement, which forms a part of a single transaction, has no room to operate in such a case as this. Friedley v. Hamilton, 17 S. & R. 70, and the line of cases following it, do not apply.

In the final objection to the admission of the contract in evidence, the ground was taken by the plaintiff that the record was defectivo because it was entered in one of the deed-books instead of the miscellaneous book, and Luch’s Appeal, 8 Wright 519, was relied upon to sustain this position. The particular point decided in that case was that the record of a mortgage in any other than a “ mortgage-book” was valueless and void as against a later lien ; in other words, that in view of the immemorial usage under the statutes, a mortgage thus entered was not recorded at all. It is but just to the learned court below to say that it required no strain to bring this caso within the spirit and reasoning of Luch’s Appeal. A careful consideration of the subject, however, has led us to seriously doubt the soundness of the principles upon which Luch’s Appeal was decided. No one of the present bench was a member of the court at the time that case was ruled, and we have hesitated in disturbing what appears to have been a unanimous decision of our predecessors. At the same time the practical difficulties of going any further in that direction are so palpable that we feel ourselves constrained to return to the rule laid down by Chief Justice Gibson in McLanahan v. Reeside, 9 Watts 511. “ It is, indeed,” says the chief justice, “ of no account that the conveyance and the articles were not recorded in the book set aside for mortgages. The keeping of such a book is an arrangement to promote the convenience of the officer by contracting the surface over which he is to search for a particular thing; and he is bound to furnish precise information, get it as he may, of every registry in his office, whether made in the right place or not.” The instances are rare in which an Act of Assembly designates the book in which an instrument must be recorded. Where such direction is given in a statute its terms must be complied with or tho record would be worthless. In many counties of the state the recorder classifies the papers brought to his office, and enters each in its appropriate book. This system has grown up with the increase of business, and vre presume has become very general throughout the Commonwealth. It is undoubtedly a great convenience to the recorder by u contracting the surface over which he is required to search,” and if conducted with accuracy can injure no one. With this, however, the party depositing an instrument has nothing to do. In contemplation of law a paper is recorded the moment it is lodged in the office and the fees paid. In point of fact it may not be, and in many instances is not actually entered in the books until months afterwards. Where a man has complied with the law by depositing his papers in the recorder’s office and paying the fees, it would be a hard rule that would deprive him of his lien or his estate because of an error of the recorder in recording the instrument in the wrong book. It would be different were there an Act of Assembly directing in what book the particular paper should be recorded. In such case the recorder might be liable upon his official bond for a failure to record as required by law. In the absence of any such act we are unable to see how we can declare that a paper is not recorded when the holder has done all that the Act of Assembly requires.in placing it on record. To do so would seem very much like legislation.

Wo are not insensible to the force of the reasoning of Mr. Justice Read in Luch’s Appeal. We think, however, that the argument ab inoonvenienti would be more appropriate if addressed to the legislature. That body has ample power to correct the evil if one exists. In the city of Philadelphia, where, by reason of the large accumulation of books in the recorder’s office, it was believed the application of the rule in Luch’s Appeal was especially necessary, jt is well known that both lawyers and conveyancers rely upon certificates of search. These the recorder is bound to give, and for their accuracy he is responsible. We presume he will continue to keep his books in such manner as to afford the greatest facilities for search. The labor . and responsibility are his. If he records' a paper in such a manner that he is liable to overlook it in making searches, he does so at his peril. We see no sufficient reason for the introduction of a rule the obvious effect of which is to lessen his responsibility.

There are many instruments which are authorized to be recorded by Act of Assembly that are not easy to classify. Such was the character of the paper in Luch’s Appeal. It was held by this court to be a mortgage, yet it was not so in form. It required an astute lawyer to determine its legal effect. If we adhere to Luch’s Appeal the holder of such instruments would not know whether they were recorded until the courts had passed upon their character. Such a rule is too uncertain, and cannot be continued without involving many innocent persons in loss and inconvenience. The application of it to the case.in hand would be unjust. The contract was an instrument under seal. It was technically a deed. It is true it was not a conveyance of land. But it was a contract relating to land. It was for the erection and construction of a house. The fact that it was recorded in a deed-book did not prejudice the plaintiffs. They had made no search and were not misled.

We are of opinion that the contract was properly received in evidence. It follows that it was error to enter judgment for the plaintiffs.

The judgment is reversed, and judgment is now entered for the defendant upon the verdict.

Mr. Justice Mercur filed a dissenting opinion.


source: Caselaw Access Project

author: Chief Justice Siiarswood

license: Public Domain

text:
    Samuel versus Peyton.
    Where by an agreement between the first grantee of. premises with the original mortgagee, said grantee was not to be personally liable on the mortgage, a subsequent- grantee is not made so by reason of the “ under and subject” clause in the mortgage.
    January 27th 1879.
    Before Stiarswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 273.
    Assumpsit by Hugh Peyton against Edward Samuel, The narr. set forth that on January 24th 1870, John G. Pierie made his bond for §800, payable five years after date, to John II. Wheeler and assigns, with interest half yeai'ly, and to secure said bond, on same day mortgaged to said Wheeler a house and lot in York street; that plaintiff, by divers assignments, is the owner of the bond and mortgage, and after intermediate conveyances, Robert A. Brownfield and wife, by indenture of October 27th 1871, granted and conveyed the said house and lot in York street to defendant, in fee, under and subject to the payment of said mortgage debt of §800; that defendant entered into possession of said premises, and thereupon promised plaintiff to pay said mortgage; that plaintiff issued a writ of scire facias on said mortgage, obtained judgment thereon for §885.60; a writ of levari facias was issued thereon, and the mortgaged premises sold by the sheriff, and that after the payment of taxes and costs, the balance remaining in the sheriff’s hands, to be appropriated to payment of said mortgage debt, was §356.34, which was paid to plaintiff, leaving balance due plaintiff from defendant §527.26, for which this suit was brought.
    The defendant pleaded specially: 1. That Wheeler, prior to the date of the mortgage, was the owner of a large lot of ground, of which the premises in dispute were a part; that before said date he had agreed with one Kressler to sell said large lot for §7500, and to make advances to Kressler to the amount of $35,700, for the building of fifty houses on part of said lot, which sums were to be secured, to Wheeler by fifty bonds for the aggregate sum of $43,200, and fifty mortgages to secure the same on the fifty houses and lots. And it was further agreed that each house should exclusively and alone be liable for the amount of the bond for the securing the payment of which it was mortgaged; that in pursuance of this agreement, Wheeler conveyed the large lot to one Pierie, who was a man of straw, for the nominal consideration of $7500, and that on the same day, Pierie executed the fifty bonds and mortgages, of which the mortgage in question is one, and four days thereafter, for a consideration of $1, conveyed said premises to Kressler.
    2. That it was agreed between the said Wheeler and said Kressler, that Kressler and his assigns should not be personally liable for any of the sums of money so secured by the bonds and mortgages aforesaid, and that in order to carry out said agreement, and so that Kressler and his assigns should not be personally responsible for any of the debts for which the said bonds and mortgages were given, the said Wheeler and Kressler had procured the said Pierie, who was a man of straw and without means, to take the title and to execute the bonds and mortgages, and to make the conveyance to Kressler.
    3. That the defendant, had conveyed the premises to one Sylvester, which was followed by several mesne conveyances to one Brownfield, who granted and conveyed the said property to Edward Samuel (the plaintiff in error), in fee, for a cash consideration of $500, and “under and subject to' the payment of the said mortgage debt of $800, with interest when and as the same shall become due and payable.”
    All the interest due on said bond was paid up to July 24th 1874.,
    To these pleas the plaintiff demurred, and the court, Thayer, P. J., sustained the demurrer in an opinion, saying:
    “ By the pleadings it appears that the plaintiff became the owner of the mortgage by assignment on the same day on which the defendant became the owner of the land by a deed of conveyance from Brownfield, ‘ under and subject to the payment’ of this mortgage. By receiving such a conveyance the grantee, according to the decisions in this state, makes the mortgage debt his own, both as regards the grantor and the mortgagee: Campbell v. Shrum, 3 Watts 60; Blank v. German, 5 W. k S. 36; Hoff’s Appeal, 12 Harris 200; Burke v. Gummey, 13 Wright 518;. Woodward’s Appeal, 2 Id. 322 ; Lennig’s .Estate, 2 P. F. Smith 135; Metzgar’s Appeal, 21 Id. 330; Taylor v. Preston, 29 Id. 436. In Hoff’s Appeal it was held that the liability incurred by the grantee in such á transaction is not only a liability to the grantor by reason of the covenant, but that it is also a liability which .the owner of the mortgage may enforce by an action in his own name. ‘ It is of no consequence,’ said Woodward, C. J., in that casq, ‘ that -the mortgagee was not a party to the dealings between Hoff and Reynolds, for it is a rudimental principle that a party may sue on a promise made on a sufficient consideration for his use and benefit, though it be made to another and not to himself.’ And again, ‘the money belonged to the mortgagee, and I hold he might have recovered it in assumpsit if not in covenant.’ This doctrine was expressly recognised in Lennig’s Estate, 2 P. F. Smith 135, where the present chief justice, in his opinion, quotes it with approval. The ruling in McCracken’s Estate, 5 Casey 426, proceeded upon precisely the same principle. In that case the estate of the grantee who had taken subject to an encumbrance was decreed to pay the amount of the encumbrance to the owners of it, although the grantee had devised the land and his devisees had sold it.
    “ The plaintiff then being the owner of the mortgage when the defendant took a conveyance of the land from Brownfield, ‘subject to the payment of the mortgage,’ the defendant is within these decisions, and he was not only bound by his covenant to his grantor, Brownfield, but he also came under a duty to the present plaintiff, the holder of the mortgage, for which, by the doctrine of the cases already referred to, the latter may maintain an action of assumpsit against him, which, under such circumstances, according to the authorities, is an equitable remedy to enforce a promise made upon sufficient consideration for his benefit. It makes no difference that here the consideration for the mortgage was not, according to the special pleas filed, a part of the purchase-money of the land originally, but certain advances made for building purposes, for which Brownfield, by his own previous covenants in the deed of conveyance made to him, had made himself responsible to his grantor, Keller, and to the Spring Garden Building Association, No. 2, which held the mortgage at the time of Keller’s conveyance to Brownfield. The principle is the same whatever the consideration of the mortgage may have been. There is, however, a well-settled distinction between taking subject to a mortgage and subject to a ground-rent: American Academy of Music v. Smith, 4 P. F. Smith 130; Walker v. Physick, 5 Barr 193. In the latter case the grantee’s liability continues no longer than the tenancy of the freehold, unless, indeed, he conveys with a fraudulent intent to avoid the payment of the ground-rent: 4 P. F. Smith 132. In the present case the mortgaged premises have by several mesne conveyances passed through several hands, each grantee in turn taking it under and subject to the payment of this mortgage. According to the principle of the cases cited every such grantee by taking a conveyance in this form incurred an immediate liability, which might be enforced, either by his immediate grantor in relief of his own precedent liability, or by the then holder of the mortgage for whose benefit the promise was made.
    “ This is a liability in the present case not founded on privity of estate, but upon the express promise arising out of the words of the deed. It is plain, then, that the defendant cannot relieve himself from this promise.by a conveyance of the land, and for this reason his third special plea is bad. In Burke v. Gummey the defendant had done this and the title of his alienee, as in the present case, had been altogether divested by a sheriff’s sale at the time when his responsibility was enforced.
    “ The pleas which set up a parol agreement between Wheeler and Kressler, even if that agreement could be proved in contradiction of Kressler’s express covenant to pay the mortgage debt, are clearly bad, for the .reason that this is altogether an immaterial allegation, and is no answer to the plaintiff’s action, which is on the defendant’s express promise to pay off the mortgage which the present plaintiff then held, and. for which the defendant’s grantor, Brownfield, was then responsible, upon his previous covenant to Keller, as well as to the Spring Garden Building Association, No. 2, who were owners of the mortgage debt at the time of Brownfield’s covenant with Keller, and who as such owners might have sued him for the debt in pursuance of the doctrine laid down in Hoff’s Appeal, Lennig’s Estate, and McCracken’s Estate, already cited.
    “Moreover,- the agreement setup between Wheeler and Kressler in the pleas, was a fraudulent and void agreement as regarded the subsequent holders of the mortgage. A conveyance to a man of straw with intent to evade a personal responsibility for an encumbrance is a fraud so far as it affects the owner of the encumbrance, although it may be good between the parties: American Academy of Music v. Smith, 4 P. F. Smith 139. And so is an agreement made to avoid responsibility for an encumbrance which is about to-be imposed upon the property, and which is to pass into the hands of third persons under forms which clearly fix upon the grantee of the estate a personal responsibility for it.
    “ Judgment for the plaintiff on the demurrer.”
    This entry of judgment was assigned for error by defendant, who took this writ.

      John Samuel, for plaintiff in error.
    The words of the deed from Brownfield to defendant do not import a promise by him to pay the debt secured by the mortgage: Campbell v. Shrum, 3 Watts 60; Blank v. German, 5 W. & S. 36; Walker v. Physick, 5 Barr 193; Keim v. Robeson, 11 Harris 456; Morris v. Oakford, 9 Barr 498; Hoff’s Appeal, 12 Harris 200; Woodward’s Appeal, 2 Wright 322; Lennig’s Appeal, 2 P. F. Smith 135.
    But whether the words “under and subject,” in the deed, are words of contract or qualification; or whether the liability of the grantee arises from the deduction of the amount of the encumbrance from the price, it follows that if the grantee did not in point of fact-c.ontract, or if his grantor is not liable, then he is not liable: Metzgar’s Appeal, 21 P. F. Smith 330; Girard Insurance Co. v.
      Stewart, 5 Norris 89. All of the cases cited show the liability to be to the vendor, and for his benefit; there was no privity of contract between plaintiff and defendant, they were total strangers and the former cannot recover: Beach v. Morris, 12 S. & R. 16 ; Blymire v. Boistle, 6 Watts 182; Morrison v. Beckey, 6 Id. 349; Finney v. Finney, 4 Harris 380; Kness v. Lehmer, 7 Id. 445; Campbell v. Lacock, 4 Wright 448; Winter’s Appeal, 11 P. F. Smith 307; Torrens v. Campbell, 24 Id. 470; Pittsburgh Coal Co. v. Otterson, 4 W. N. C. 545; Guthrie v. Kerr, 4 Norris 303; Kountz v. Holthouse, 4 Id. 235.

      William 0. Hannis, for defendant in error.
    The evidence for the defendant in error showed a clear case of personal liability for the payment of the mortgage debt by the plaintiff in error, under the principle adopted and decided in the cases of Campbell v. Shrum, 3 Watts 60; Blank v. German, 5 W. & S. 36; Keim v. Taylor, 1 Jones 163; Hoff’s Appeal, 12 Harris 200 ; Woodward’s Appeal, 2 Wright 322 ; Burke v. Gummey, 13 Id. 518 ; Lennig’s Appeal, 2 P. F. Smith 135; Metzgar’s Appeal, 21 Id. 330; Taylor v. Preston, 29 Id. 436.
    It is submitted that while the defendant in error took this bond and mortgage subject to whatever defence existed against the payment of the same, yet he took it clear and discharged of all secret equities and agreements of persons other than the mortgagor, of which ho had no notice, and of which he could not be informed by application to the obligor or present owner: Mott v. Clark, 9 Barr 399; Wethrill’s Appeal, 3 Grant 281; Downey v. Tharp, 13 P. F. Smith 322. Where property was put into the hands of the person sought to be charged, at the time of his agreement, to pay the debt due to a third person, the third person may maintain the action in his own name: Hind v. Holdship, 2 Watts 104 ; Beers v. Robinson, 9 Barr 229 ; Vincent v. Watson, 6 Harris 96; Bellas v. Fagely, 7 Id. 273; Townsend v. Long, 27 P. F. Smith 143; Justice v. Tallman, 5 Norris 147. That defendant has parted with his title makes no difference and he is still liable: Burke v. Gummey, 13 Wright 518; Keim v. Taylor, 1 Jones 163; McCrackin’s Estate, 5 Casey 426.

       See Moore’s Appeal, ante, 450. — Rep.

   Chief Justice Siiarswood

delivered the opinion of the court, March 3d 1879.

In Moore’s Appeal, ante, 450, which has just been decided, it has been held by this court that the conveyance of land “under and subject” to a mortgage or other encumbrance, is of itself a covenant of indemnity only for the protection of the vendor. It was shown in that case, on a review of the authorities, that it was only where there was an express agreement to pay the encumbrance, or where such agreement might be implied from the circumstances that there was liability to the encumbrancer or that he could sue in the name of the vendor to his use. The vendor must sue, and must show that he • has been damnified, or at least must show that his danger of damnification is imminent. The special pleas in this case, not only expressly denied any agreement by the defendant to pay the mortgage, but averred a state of things which showed that his vendor never could be damnified. If it was expressly agreed that the first • grantee from the party creating the encumbrance should not be personally liable — it is evident that no subsequent grantee could become so without his own express agreement. The first link in the chain, by w'hich a subsequent grantee might be called upon to indemnify his vendor would be wanting. On the demurrer to the special pleas of the defendant we think he was entitled to judgment.

Judgment reversed, and now judgment for the defendant on the demurrer.


author: Mr. Justice Woodward

text:
    Massey’s Appeal. Loxley’s Estate.
    1. In Pennsylvania the rules of the common law regarding the devolution of property described in lapsed devises and bequests are in full force. Under these rules real estate, the devise of which has lapsed, descends to the heirs-at-law, and forms no part of a residuary estate created by a testator’s will, except where a special intent to the contrary is manifest. On the other hand, personal property, where a legacy has lapsed, falls into the residuary estate.
    2. The Act of April 8th 1833 has not changed these common-law rules in regard to lapsed devises and bequests,
    3. Patterson v. Swallow, 8 Wright 490, and Yard v. Murray, 5 Norris 113, explained.
    January 28th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson,'Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 86.
    Appeal of Anna E. Massey and others, residuary legatees under the will of Mary P. Loxley, deceased.
    This was a petition by the personal representatives of two of the next of kin of the testatrix, for a review of the auditor’s report and the decree confirming the same, whereby the amount of a lapsed legacy was awarded to the residuary legatees; and praying that the said legacy might be awarded to her next of kin.
    The petition avers, that Mary P. Loxley, by the last codicil to her will, dated August 6th 1866, bequeathed, inter alia, as follows;

      “ I do hereby give, devise and bequeath unto said John Yard, Jr., and Charles Yard, all the city of Philadelphia loans of every description now standing in my name, amounting in all .to the sum of $116,800, or the equivalent of the same in money, should I dispose of the same or any part thereof during my lifetime; this bequest to be free and clear of all collateral inheritance tax.”'
    That by her will, dated February 6th 1860, she directed her executors to sell and convert into money all the rest, residue and remainder of her estate, real, personal and mixed, of which she might die seised, possessed or entitled to, and to divide the net proceeds thereof among persons therein named.
    That John Yard, Jr., died before the testatrix ; that the auditor awarded the moiety of city loan, bequeathed to him, to the residuary legatees of the testatrix, and that his report was confirmed by the Orphans’ Court.
    That Charles Yard appealed to the Supreme Court, which dismissed his appeal, saying : “ It is proper before closing to say that we give no opinion on the question whether the lapsed legacy to John Yard, Jr., fell into the residue. The parties representing that question are not before us.”
    That in the ease of Yard, executor of Mary P. Loxley, v. Murray, decided by the Supreme Court on the same day, that court held that the residuary clause of a will must evince a special intent to pass over lapsed portions of the estate into the residue.
    That the petitioners are the personal representatives of two of the next of kin of the testatrix, and that they were advised that there was error apparent in the record, in awarding the lapsed bequest to the residuary legatees. The petition prayed that the proceedings might he reviewed and that the said lapsed legacy might be awarded to the next of kin of the testatrix.
    The answers of the residuary legatees set up that there was no apparent intention of the testatrix to die intestate as to any part of her estate, because she had made disposition of the whole thereof, and that the lapsed legacy passed by law to them as her residuary legatees.
    In an opinion, the court, Penrose, J., said:
    “ It is doubtless true that the prevalent opinion among the legal profession in this city was, that a legacy lapsing by reason of the legatee’s death in the lifetime of the testator, in the cases not otherwise provided for by statute, passed to the residuary legatees. This was stated by Sir William Grant, in Cambridge v. Rouse, as having ‘been longed settled.’ As to a lapsed devise, the rule was supposed to be different, the reason given being, that a will as to realty spoke only from the time of making it, and the residuary devisee could only take what at that time was intended for him: Jones v. Mitchell, 1 Sim. & Stu. 294.
    “ This reason for the distinction was taken away when the Act of 1838, providing that the real estate of a testator acquired after making his will shall pass by a general devise, in the absence of words indicating a contrary intention, was enacted.
    “ There was another reason sometimes given, namely: that the ‘ heir could not be disinherited without an express devise or necessary implicationbut as the right of succession to personal property of an intestate was conferred by the same Act of Assembly, and. in terms quite- as absolute as the right of inheritance to real estate, this reason cannot be regarded as a very satisfactory one, and accordingly in Patterson v. Swallow, 8 Wright 490, Judge Woodward declares that the old distinction between lapsed legacies , and lapsed devises no longer exists in Pennsylvania.
    “ That a devise to John Yard, Jr., which lapsed by reason of his death, in the lifetime of the present testator, did not, under the language of the residuary clause, pass to the residuary devisees, -was the very point decided by the Supreme Court in the recent case of Yard v. Murphy, 5 Norris 113. Why should there, in view of what was declared in Patterson v. Swallow, supra, be a different rule with regard to the lapsed legacy ? In both cases the right of the parties claiming the residue rests upon the same clause in the- will. If insufficient for one, why should it avail the other ? That it does not is clearly within the reasoning of Chief Justice Agnew, in delivering the opinion of the court in Yard v. Murphy. It is evident that the language of the court was not used inadvertently or in forgetfulness of the distinction that had been supposed to exist, because when the opinion was prepared, the appeal in the case now before us, which involved a question affecting the right to the lapsed legacy, was also under consideration, having been argued during the same week, .and the opinion having been delivered on the same day. The very point, therefore, could not fail to present itself to the mind of the court, although the question argued before it had been, not the distinction of the lapsed legacy, but whether there had been a lapse at all. The auditor, however, had discussed th.e question of distinction, and after an elaborate consideration of the authorities had made distribution among the residuary legatees. No one had excepted to his action in this respect, and this court had decreed distribution accordingly. The auditor’s reasoning, and the authorities were therefore before the Supreme Court. That they have failed to convince and that there was a very decided opinion that the distribution,-if made in conformity with the decree as it there stood, would not be a proper one, appears from the very significant manner in which attention is called to the point in the opinion affirming the decree. ‘ It is proper before closing to say, that we give no opinion whether the lapsed legacy to John Yard, - Jr., fell into the residue, the parties representing that question are not before .us.’ This is what was said in Yard’s Appeal, 5 Norris 129. With the vast accumulation of business in the Supreme Court, it is impossible to suppose that this invitation to further litigation in an estate, which otherwise would' have been closed at once, would have been given,, had it not been the deliberate opinion of the court that injustice would otherwise be done. The case will not rest upon our decision of it; we prefer, therefore, to follow what we are convinced was the view of the court of last resort; if we are mistaken, our error will be there corrected. We now decide that the legacy, which lapsed by reason of John Yard’s death, did not pass to the residuary legatees, but that the parties entitled are the next of kin of the testatrix, Mary P. Loxley.
    “ So much of the report of the auditor and of the decree thereon as awards any portion of the legacy, which lapsed by reason of the death of John Yard, Jr., to the residuary legatees, must, therefore, be revised and set aside, and the report recommitted to the auditor for correction.”
    From this decree this appeal was taken.

      Louis 0. Massey, John A. Ciarle, Joseph B. Townsend and Greorye W. Biddle, for appellants. —
    -Lapsed legacies pass to the residuary legatee: Cambridge v. Rous, 8 Vesey, Jr., 25; Leake v. Robinson, 2 Meriv. 392; Nyce’s Estate, 5 W. & S. 260 ; Woolmer’s Estate, 3 Whart. 477. To make them intestate property there must be an apparent intent to exclude them from the residue : King v. Woodhull, 3 Edw. Ch. 79. Patterson v. Swallow was intended to do away with lapsed legacies of either realty or personalty. Yard v. Murray, 5 Norris 113, was the case of a lapsed devise of realty which at common law descends to the heirs.

      L. L. Perkins, John Gr. Johnson, Uselma C. Smith and K. Spencer Miller, for appellees.
    To pass lapsed specific bequests to residuary legatees there must be a clearly expressed intention to do so, and none appears in this will. Woolmer’s Estate, supra, was the case of a void not a lansed legacy. We rely upon Yard v. Murray, supra.

   Mr. Justice Woodward

delivered the opinion of the court, March 24th 1879.

In Pennsylvania, throughout its history as a province and a state, the rules of the common law regarding the devolution of property described in lapsed devises and bequests have been accepted as in full force. They have been constantly applied and acted on by the courts and by members of the bar. While there have been indications of a belief in the minds of individual judges in some recent cases that the Act of the 8th of April 1833 has modified them, they have never been departed from in any precedent of controlling authority. Under these rules, real estate, the devise of which had lapsed, has been always held to descend to heirs-at-law, and to form no part of a residuary estate created by a testator’s will, except where a special intent to the contrary has been apparent. This principle was taken for granted in Allison v. Kurtz, 2 Watts 185. It is true that the lapse in that case was of part of the residue, but Judge Sergeant, in the opinion, did not advert to that distinction. On the other hand, personal property, where a legacy has lapsed, has with equal uniformity been given to residuary legatees: Woolmer’s Estate, 3 Whart. 477; Nyce’s Estate, 5 W. & S. 254. In Woolmer’s Estate, Judge Kennedy quoted the remark of Sir William Grant, in Leake v. Robinson, 2 Meriv. 392, that “ it must be a very special case, indeed, in which there can be at once a residuary clause and a partial intestacy.”

Neither the integrity nor the authority of these rules has been impaired by the exceptional cases that from time to time have been decided. In Patterson v. Swallow, 8 Wright 490, where residuary devisees were held entitled to take land, the names of the persons designed to he made particular devisees had been omitted in the draft of the will of the testatrix. Blanks left for the insertion of the names had not been filled. It was purely a void, and not a lapsed devise. And in Neff’s Appeal, 2 P. F. Smith 326, where both personal property and land were decided to belong to the next of kin, the lapsed devise and legacy had been of parts of the residuary estate, and thus came within the exception stated in Leake v. Robinson, of “.some part of the residue itself ill-given.”

■ From some expressions in the opinion in Patterson v. Swallow, it is'manifest that the judge who delivered it believed that the Act of 1833 had destroyed the distinction between real and personal property, and that land embraced in a lapsed devise should go to residuary devisees. And from some expressions in the opinion in Yard v. Murray, 5 Norris 113, it might be inferred that it was the design of the court to declare not only that the distinction was obliterated, but that the result of the obliteration had been to cast the real and personal estate alike upon the heirs-at-law. But in each of those cases, the language employed in entering the judgment was aside from any point involved or ruled.

In the consideration of Yard v. Murray, after the argument — and it was carefully and deliberately considered — there was hesitation on the part-of some members of the court to affirm the judgment of the Common Pleas. In the first place, it was-thought that the language of the residuary clause in Miss Loxley’s will was exceptionally comprehensive. The gift was of “ all the rest, residue and remainder” of her “ estate, real, personal and mixed,” of which she should “ die seised, possessed or entitled to.” The opinion of the court upon the effect of the Statute of Wills had been expressed emphatically and without qualification in Patterson v. Swallow, and there was an inclination to accept and adopt that opinion, especially as no case of binding force ■ recognising the contrary doctrine had been decided subsequently to the enactment of the statute. And it was urged that .in this state, where under almost all circumstances the same principles govern the distribution of real and personal estates, symmetry would be given to the legal system by establishing the rule that land, like personal property, should go, in the event of lapse, into the residuary estate.

There were, however, considerations, which were in the end controlling, to be taken into account on the other side, The principles of the common law had been rules of property for generations before 1833, and during a period of almost fifty years after the Statute of Wills was passed, estates had been settled, titles had been acquired and conveyed, and counsel had advised and instructed clients on the theory that they remained rules of property still. The very paucity of precedents was enough to prove the settled and pervading professional opinion that the old rules had been left unchanged. An Act of Assembly would have only prospective operation, and would do no wrong. A departure from the accepted theory of the law by a judicial decision would be fruitful of wide-spread mischief. Besides, in order to reach such a decision, the statutory words would have to be strained. The tenth section of the Act of 1833 declared simply that real estate acquired by a testator after making his will should pass by a general devise. Equivalent words had been so construed in Massachusetts and Maine, as to work out the result contended for in Patterson v. Swallow, while precisely the contrary view of the effect of such words had been taken by the courts of New York. The English Statute of Wills had left nothing for construction. By the third and twenty-fourth sections, the substance of the tenth section of our Act of 1833 was enacted, and the twenty-sixth section declared in terms that a residuary clause should include land described in lapsed and void devises. Upon like grounds an affirmance of the judgment was finally agreed to without dissent.

Eo issue is involved in this appeal except that relating to the personal estate of the testatrix. The opinion of the Orphans’ Court stated the law "with entire accuracy, and their decree might safely be reversed for the reasons contained in that opinion. But it has been thought right that the unanimous judgment of the members of this court on this branch of the law of the Commonwealth should be pronounced. It may be that it would be wise to introduce the principle of the twenty-sixth section of the English statute into our system. But in deciding Yard v. Murray, it was felt that it could only be introduced with safety by the action of the legislature.

The decree of the Orphans’ Court is reversed, and it is now adjudged and decreed that the decree of that court, made on the 4th of November 1876, be reinstated and restored, with all the force and effect the same would have if no part of it had been at any time annulled, subject, however, to the exception that the costs of this appeal be paid out of the fund for distribution.


author: Mr. Justice Gordon

text:
    Charlton’s Appeal.
    1. Where an administrator, pursuant to an order of the Orphans’ Court, has paid over money to a distributee, he will be protected against loss if the
    •court should subsequently open and change the decree. Stewart’s Appeal, 5 Norris 149, followed.
    2. Where voluntary payments have been made by an administrator, and there is a subsequent decree in favor of the person to whom they were made, the administrator will be protected thereby.
    January 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court' of Philadelphia county: Of July Term 1878, No. 89.
    The proceedings in this case were as follows: Mary Ann Charlton died intestate, on January 27th 1875. On February 25th 1876, her administrator, T. Stewart, filed his account, showing a balance of $2351.66. On the 3d of April 1876, this account was confirmed nisi, and the balance in the hands of the administrator was awarded to the decedent’s daughter, Mrs. Conrad. No exceptions having been filed to the account the confirmation became absolute on the 24th of April, by a rule of court. During the year 1875, the administrator had advanced Mrs. Conrad $1850, and on May 9th 1876, under an ex parte order of the Orphans’ Court made on May 6th, the balance in the accountant’s hands, less $13.50 court costs, was paid to her. On the 27th of April, W. M. Charlton, who alleged he was the husband of decedent, filed exceptions to the confirmation of the account, and also a petition for a review, and the court opened the adjudication to permit him to be heard. The administrator had no notice of this proceeding, when he paid the balance on the 9th of May. On the 8th of December 1876, a corrected adjudication was filed, and the administrator was directed to pay Charlton, as husband of the decedent, one-half of the balance for distribution, viz.: $1175.83. From this decree the administrator appealed to this court, which reversed the court below, and the case was remitted to the Oi’phans’ Court to determine whether the money which had been paid to Mrs. Conrad, in pursuance of the decree of May 6th 1876, had been paid, before notice of the application for a review. On February 16th 1878, the Orphans’ Court referred the matter to a master, to take testimony and report on this point. The master found the foregoing facts, in substance, and so reported. The court then vacated the order of April 27th 1876, dismissed the exceptions of Chax-lton, and set aside the adjudication of December 8th 1876 in his favor. From this decree he took this appeal.. i

      Pierce Archer, Jr., for appellant.
    The wrongful voluntary payment of $1850 by the administrator to the daughter, in exclusion of the husband of decedent, before any account was filed, cannot be construed to have been “actually paid over according to the decree,” to use the language of Siiarsavood, C. J., in Stewart’s Appeal, 5 Norris 149, when this case was here before, when in point of fact no decree to pay over was made for a year after the voluntary payment. If the accountant’s attorney procured an ox parte decree, after notice of the husband's claim, in order to get the balance of §488.16 into his other client’s hands (the daughter), in fraud of the husband’s rights, he should not be protected even as to it.

      H F. Hepburn, for appellee.
   Mr. Justice Gordon

delivered the opinion of the court, February 17th 1879.

If Ave are to adopt the decision of this court, made one year ago in Stewart’s Appeal, supra, Ave cannot convict the court beloAV of error. In that case our brother, the present chief justice, said: “If the sum, or any part of it, was actually paid over according to the decree before notice of the application for a review, both the express provisions of the Act of 1840, and the plain dictates of justice and equity, require that the appellant should be protected.” Now if avo are to take the finding of the Orphans’ Court for verity, and we see no reason why we should not do so, neither the administrator nor his counsel had notice of the filing of the exceptions of April 27th 1876, until after the entire balance had been paid over to the distributee in accordance with the decree of the court. Such being the case, the former decision governs, and the present ruling of the Orphans’ Court must, be affirmed. It was urged that that part of the money of the estate which the administrator paid to Mrs. Conrad, before the date of the decree, be paid at his OAvn risk. This is true, but only at the risk of a decree in favor of the person to whom he paid it; when, however, that decree wras made his risk was at an end, since that decree covered not only the balance remaining in his hands, but all previous payments. In other words, the decree of the 3d of April 1876, determined definitely that Mrs. Conrad was entitled to the whole sum of §2351.56, and so it was not merely an order to pay over to her the balance,' but it was an approval also of the payments previously made. It was a final adjudication that she was the sole distributee, and when her claims were met and satisfied, that was an end of the matter.

Decree affirmed ; appellant to pay costs.


author: Mr. Justice Sterrett

text:
    Castner’s Appeal. Ryan’s Estate.
    1. R- died, leaving three daughters, Ann, Martha and Mary, and five grandchildren by a deceased daughter, Catherine. He left a will and after disposing of part of his estate gave the rest to trustees to divide the income into four equal shares, one-fourth part to b.e paid to each of the daughters, and the. other fourth to the grandchildren. When the grandchildren reached the age of twenty-one, each was to receive his share of the principal as represented by the income received. In regard to the principal given in trust for the daughters, he provided that each daughter might appoint, by will who should receive it after her death, and in default of such appointment by will, then the principal sum was to be paid to the child or children of such daughter in equal shares; but if either of said daughters should die without leaving issue, and without any last will, then the share of such daughter was to be continued under the same trusts as hereinbefore provided, “"for the use and benefit of my surviving children, in equal proportions, in the same manner as hereinbefore directed as to the residue of my estate.” The testator’s daughter Martha died without issue and without having made any appointment by will. The grandchildren, the children of Catherine, claimed, that they were entitled to participate in the portion of the residuary estate which was held in trust for their aunt Martha. Held, that upon Martha’s decease without children, and without having exercised the power of appointment as to the principal, the right to receive the income in equal proportions vested’ in her surviving sisters, Mary and Ann, and that each was entitled to appoint one-half of the principal by will.
    2. The word “ children” in a will does notinclude “ grandchildren,” unless it appears from the context to be so intended by the testator, or such meaning is necessary to carry out his manifest intent.
    January 28th 1879.
    Before Siiarswood, 0. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1878, No. 84.
    The proceedings in this case were as follows: Lewis Ryan, the testator, died on the 23d of June 1850, leaving a will, by which certain trusts were created. The original trustees having died, Robert L. Reilly‘was appointed sole trustee, thereunder, on March 6th-1877. The time having arrived for the- distribution of the whole estate, Reilly, the trustee, filed his first and final account in the Orphans’ Court, reporting $44,910.09 for distribution. No objection was raised to the account, and the only point of dispute was as to the proper mode of distribution which depended upon the construction to be given to one clause of Lewis Ryan’s will.
    The names of the parties appellant were Mrs. Mary Reilly, Martha Reilly, Anne Reilly, Mrs. Catherine Castner and H. Castner, Esq., her husband, :in the right of the said Catherine and Robert L. Reilly. These are all children of the testator’s daughter Catherine, who pre-deceased him.
    The names of the parties appellees were Veronica Smith, Ffinnie F. Smith, Philip L. Smith, Daniel Smith, James N. Smith and Clement J. Smith, all of whom are children of the testator’s daughter, the late Mrs. V. J. Smith.

      There was no petition or answer. When the trustee filed this account in the Orphans’ Court, showing a balance for final distribution, the parties all consented that it should be at once referred to N. Dubois Miller, Esq., as auditor, to settle and adjust the same, and report a scheme of distribution. The auditor, inter alia, reported: Lewis Ryan, the testator, died Juno 23d 1850, leaving a will, and leaving surviving him three daughters, Martha M. T., Ann E., and Mary V. J., wife of James M. Smith, and five grandchildren, Mary, Martha, Anne, Robert L. and Catherine, children of his deceased daughter Catherine, wife of Philip Reilly. Miss Martha M. T. Ryan died October 14th 1865, unmarried, leaving a will. Mrs. M. V. J. Smith, died April 2d 1876, leaving a will and six children, James M., Philip, Edwin, Fanny, Clement J. and Veronica, all of whom had boon born before the death of Lewis Ryan. Miss Ann E. Ryan, died July 20th 1876, unmarried, leaving a will.
    By his will, the testator, Lewis Ryan, bequeathed and devised his estate, after one or two specific legacies, as follows:—
    u 4. All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath to my daughter Ann (so long as she shall remain unmarried), and my friends, William J. Duane and Joseph Patterson, and the survivors and survivor of them and the heirs and assigns of such survivor for ever, in trust, nevertheless, to grant, bargain, and sell the same at public or private sale, as they may deem most advantageous, and to invest the proceeds thereof in good and sufficient ground-rents or mortgages, and to receive the income and interest thereof, and to divide the said income and interest (including the income and interest of any stock or loan of the state of Pennsylvania, or of the corporation of the Kensington district, which I may hold at the time of my decease), into four equal shares or parts, and to pay one full and equal fourth part thereof unto each of my daughters, Ann, Martha and Mary, half-yearly, during all the time of their and each of their lives, for their sole and separate use, respectively, whether they be married or single, and without any control or supervision of any husband any of them may have, and without being in any way accountable for any debt or engagement of any husband any of them may have, and without being in any way accountable for any debt or engagement of any such husband, the receipt of each of my said daughters to be a sufficient discharge for such trustees; and as to the remaining fourth part of the said income and interest, in trust, to pay the same to my son-in-law, Philip Reilly, for the maintenance and education of the children of the said Philip and my late daughter Catherine, until the said children shall severally attain the age of twenty-one years; and as the said children shall severally attain that age, then, in trust, to pay the principal or capital sum on which such child had been receiving the income or interest, to such child for his or her own use, provided, that if any of the children of my daughter Catherine should die under the age of twenty-one years, leaving lawful issue, the share of such child shall descend to-and be enjoyed by such issue; but if any of the said children should die under age and without issue, then the share of such child shall go to and bp enjoyed by the survivors, in equal shares or proportions, and from and immediately after the death of either of my said daughters, in trust, to pay, assign, transfer, and set over the principal sum on which such daughter, so dying, was entitled-to receive the income or interest', to such person or persons, and for such uses, interests and purposes, as such daughter, by any last will or testament or instrument of writing in the nature of a last will or testament, notwithstanding her coverture, may direct, limit and appoint to' receive the same; and for want of any such last will and testament, then to pay the said principal sum to the child or children of such daughter, in equal shares or proportions; but if either of my said daughters shall die without leaving issue, and without any last will or testament, then it is my will and desire that the share or portion of such daughter shall be continued under the same trusts as are hereinbefore provided for the use and benefit of my surviving children, in equal proportions, in the same manner as hereinbefore,' directed as to the residue of my estate. Provided that if my daughter Mary should die, leaving her husband surviving, then it is my will, that the income and interest of her share shall be paid to her husband, James M. Smith, for the maintenance and support of his children, in the same way and manner as is provided for the children of my daughter Catherine Reilly.”
    Mr. Duane and Mr. Patterson were discharged as executors and trustees in July 1864, and Miss Martha Ryan and Mrs. M. Y. J. Smith were appointed im their stead as trustees with Miss Ann E. Ryan. These ladies having all died, Robert L. Reilly was appointed sole trustee March 6th 1877.
    Of the four parts or shares of the principal sum, the residue thus invested, one-fourth has been paid to the children of Mrs. Reilly absolutely, all of them having become of age. One other fourth part, representing the original share of Mrs. Smith, has been paid to her executors. The balance of this residue for distribution in the hands of the trustee, therefore represents the remaining two-fourths of the principal from one of which Miss Ann and Miss Martha Ryan each received the income as originally directed in the will, of their father. The distribution of Miss Ann Ryan’s share need not now be considered, as the controversy before the auditor turned entirely upon the distribution of Miss Martha Ryan’s share of the principal. The only reference in her will to this share and her power of appointment over it, is in the third clause, viz.: 8d. I give to my sister, Ann; all interest from- the estate of my late father, in tne same way that I have received it during her life.” It was generally conceded by the counsel, at least no argument to the contrary was ever suggested, and it is the opinion of the auditor, that this gave to Miss Ann Ryan only a life-interest in her sister’s share, and consequently, except to this extent, Miss Martha Ryan failed to exercise the power of appointment given to her by the will of her father. The proper award of this share therefore was the question presented for the auditor to decide. Upon this two points arose :
    1. To which of Lewis Ryan’s heirs or devisees should the whole amount bo awarded, and in what proportions ?
    2. How should these shares be awarded under the wills of Lewis Ryan’s daughters ?
    As. solutions of the first point three hypotheses were advanced:
    (1) Lewis Ryan died intestate as to this share, and it should be divided among the distributees entitled to take under the intestate laws as fixed at the time of Lewis Ryan’s death.
    (2) Upon Miss Martha Ryan’s death without children or a will disposing of the principal, the right to receive the income in equal proportions vested in Mrs. Smith and Miss Ann Ryan, subject to Miss Ann’s life interest, that therefore each was entitled to appoint one-half the principal by will.
    (8) Upon Miss Martha Ryan’s death the right to receive the income in equal proportions vested in Mrs. Smith, Miss Ann Ryan, and the children of Mrs. Reilly, and under the will of Lewis Ryan the share of Mrs. Reilly’s children should be paid to them absolutely.
    The argument in favor of hypothesis (1) as presented by Mr. Biddle in behalf of Mrs. Reilly’s children, is this: The words used to create this trust are in each case only applicable to a trust to dispose of the income, and there is no disposition of the principal upon the contingency of the first beneficiary not disposing of her share. The words arc “ to receive the income and interest thereof, and to divide the said income and interest” into four equal shares, and to pay one-fourth “thereof” to his daughters. In default of issue, and upon any of the daughters dying without any will, “ then the share or portion of such daughter shall be continued [under the same trusts as are hereinbefore provided] for the use and benefit of my surviving children, in equal proportions, in the same manner as hereinbefore directed as to the residue of my estate.”
    The auditor reported that the first hypothesis was practically abandoned, and then further reported : “ The two other hypotheses may be considered together. Hypothesis (2) is that upon the death of Martha without disposing of this principal, the right to dispose of it immediately rested in Miss Ann Ryan and Mrs. Smith, while hypothesis (3), while admitting that no intestacy exists, is to the effect that the trust is continued, not only for the benefit of Mrs. Smith and Miss Ann Ryan, but also for the children of Mrs. Reilly in equal proportions.
    “ On behalf of this view, as opposed to the other, it was argued, 1. That it is in accordance with the rule of law that the heir cannot be disinherited, but by plain and clear words to that effect, and the result of such a construction of this clause as will make the continuance of the trust only for the benefit of the surviving daughters of the testator to the exclusion of Mrs. Reilly’s children is practically to do this very thing. 2. That where any doubtful or ambiguous phraseology exists, the scheme of the whole will must be taken into consideration, and that, looking at this will as a whole, it is plain that the predominant thought in the testator’s mind was the division of his residuary estate into such shares' as would entitle all his children, and their representatives, to share alike, and have an equal portion of the residue; therefore upon the failure of any one of the beneficiaries to dispose of the principal when a re-division is ordered, it must be interpreted to mean a division upon the same principle, and with the same interest to each, relatively to the others, as was fixed upon the first division, unless the words plainly show a contrary intention. These two rules ought undoubtedly to govern if we find it impossible to discover the true intention from the word’s alone, or if standing alone they express a wish plainly at variance with the whole scope of the will, or even fairly doubtful. Now is this the ease ?
    “ The whole question must depend upon the construction to be placed upon the 4th clause, for there is nothing in the rest of the will which, in the opinion of the auditor, or apparently of that in any of the counsel, tends to explain it if any ambiguity does exist.
    “ By this clause the whole residuary estate is given to trustees to sell and invest, and to divide the income of the investments into four equal parts; to pay one-fourth to each of his three daughters then living, and one to his son-in-law, Philip Reilly, for the maintenance of the children of the deceased daughter Catherine, and to pay to each of such children, as they came of age, the principal on which he had been receiving interest. In the same sentence, the further trust is provided to transfer immediately upon the death of either daughter the principal sum on which such daughter was entitled to receive the income, as she should appoint by will, and on failure to appoint, to her children; but in case of no appointment and no children, then it was the testator’s will that the share or portion of such daughter should be continued under the same trusts as were thereinbefore provided for the use and benefit of his surviving children, in equal proportions, in the same manner as before directed as to the residue of his estate. To hold, as is claimed by the counsel for Mrs. Reilly’s children, that this direction means that they are to share in this second distribution of income equally with the testator’s surviving daughters, it is necessary to assume one of two things : either the trust for ‘surviving children’ referred to is taken to indicate a trust similar to that provided for his surviving children, in which all his heirs are to share equally, as directed in regard to the first division of the residue, and the kind of trust for the grandchildren be taken as included by the words referring only to the trust for the daughters; or else, if the term refers to the beneficiaries, as well as the kind of trust under which they are to take, grandchildren must be included under the term ‘ children.’
    “ If the trust for the daughters and that for the children of the deceased daughter rvere identical, it might be said that a reference to one would include the other, if merely used to indicate the kind of trust. But in one sense that which alone gives character to a trust, is really the duty devolving upon the trustee, and if these duties are different in trusts for two eestuis que trustent, the trusts can hardly be said to be identical in kind. Here the trust for Mrs. Reilly’s children was to pay the income to the father until each child should come of age, when a certain share of the principal would then be paid to that child, with no power of appointment or provision for remainder; while the trust for the daughters was limited upon the further trust to pay the principal as each daughter might direct, or to her children, and in default of both, to continue upon the same trust, as provided for his surviving children. Now, the word ‘ children’ being admittedly equivalent to daughters, it ought, if this argument be correct, to be possible to substitute the latter for the former, so that it would read, ‘upon the same trusts as are hereinbefore provided for the use and benefit of my surviving daughters.’ It appears to the auditor that this would fail to indicate the same kind of trust as that provided for the grandchildren. Or, again, if it be admitted that the trusts are so exactly alike that a reference to either will indicate the other, then the one term may be substituted for the other, without altering the meaning of the sentence, and we might read it thus, ‘ upon the same trusts as are hereinbefore provided for the use and benefit of my grandchildren;’ but it is very apparent that daughters could not claim a portion of the income from this new trust of this one-fourth or a power of appointment over any part of the principal, if such had been the language of the testator. The meaning would have been entirely intelligible had he simply said, ‘ upon the same trusts as are hereinbefore provided;’ if this was the intention, why should this limit be added, unless to distinguish between the trusts theretofore provided ? It is the opinion of the auditor, therefore, that, if taken merely as referring to the kind of trust, this term does not include the trust for the grandchildren ; and he is probably led to this conclusion the more readily, because he cannot but think that by this expression the testator intended specifically to point out the lenefieiaries, as well as to indicate the nature of the trust; perhaps it may not be improper to add, that the fact that upon the first argument no other view seems to have been taken by counsel, confirms his impression that this is the natural and obvious reading.
    “ If it does refer, then, to the beneficiaries, can the grandchildren be referred to under the term ‘ children ?’
    44 It was said by Gibson, C. J., in Dickinson v. Lee, 4 Watts 83, that4 where it is necessary to effectuate a manifest intent, grandchildren may undoubtedly take by the designation of children, though it is by no means the legal acceptation of the word. They are suffered to do so, principally, if not exclusively, in two cases: where the word is used evidently as co-extensive with issue, which is a, word of very general import; and where there are no children literally to answer the description, and then grandchildren are let in utres magis valeat quam pereat,’ or as was said by Rogers, J., in Hallowell v. Phipps, 2 Whart. 380 : 4 Their being included in that term is only permitted in two cases, viz-.: from necessity, which occurs when the .will would remain inoperative, unless the word children were extended beyond its natural import; and where the testator has clearly shown by other words, that he did not intend to use the word children in the proper actual meaning, but in a more extensive sense.’
    44 Neither of these reasons exists in the present case, and under the weight of this authority, which has not been disputed or even materially modified, such a change in the 4 actual meaning’ cannot be resorted to. See also Horwitz v. Norris, 13 Wright 217. No extraneous evidence was offered to show what was the natural wish or desire of the testator, and upon the face of the will there is nothing which renders the intention, as expressed by the auditor’s interpretation, unnatural or improbable. It might well be that the testator, having given to the children of his deceased daughter their mother's share of the estate absolutely, he should desire to retain the balance under the control of and for the benefit of the other daughters, even to the exclusion of the deceased daughter’s children, as was the case in Hough v. Hough, 4 Rawle 363.
    44 It was further argued that the term 4 residue’ is used in two places only ; and the testator having first disposed of the residue, so that all might share alike, when he again refers to the division of the residue, he intends that in this portion all should share alike, as in the’ general distribution of the residue. But the words cannot be regarded without their context, and if, as in the opinion of the auditor is the case, the testator had already said that the daughters were to share the income equally, the reference to the former distribution of the residue is merely for the purpose of additional explanation as to the manner of distribution; it would be absolutely impossible to divide in the same equal proportions, because originally there were four shares, and after the death of one of the beneficiaries, only three could be made, which of itself shows that the words are merely used as an explanatory reference, and not in their literal sense.
    “ The auditor is of the opinion on the first point of this case that hypothesis (2) is the correct statement of the testator’s intention and the interpretation of this will.
    “But here arises the question upon the second branch of this ease, vis.: how shall these shares be awarded under the wills of Lewis Ryan’s daughters ? more particularly in regard to the share belonging to Mrs. Smith’s estate. By her will Mrs. M. V. J. Smith directed as follows, after certain specific bequests : ‘All the rest and residue of my estate and all of the several estates and properties of my late father, Lewis Ryan, or my said late husband, and of any other person or persons, over, or in respect to which I have any power or authorities of gift, bequest, devise or appointment, by their several and respective last wills and testaments, or otherwise, in exercise and pursuance of such powers or authorities, and by force and virtue of the same, and of all and every power and authority me enabling and empowering, I do give, devise and bequeath to the Fidelity Trust and Safe Deposit Company, its successors, and my son, Clement J. Smith, and his heirs and assigns, in trust, to lease or invest the same, or the proceeds thereof, and keep the same leased and invested, and receive and collect the net income thereof, and semi-annually, on the first days of January and July in each year, to pay and divide the same to and among my sons and daughters then living, in equal shares equally, during their several and respective natural lives, and so that the same shall not be liable for, or subject to their several and respective debts, contracts or engagements, and upon and after their several and respective deaths to convey, assign and transfer the share of the principal of my said residuary estate, producing the income of the one so dying to such person or persons, and for such estates as he or she may by will have appointed, and in default of such appointment, to the person or persons that would take under him or her, if he or she had died intestate owning the same.’
    “ ‘ I give my said trustees power to sell any part of the real estate hereby devised to them to such person or persons, at such times, and in such portions as they may deem best, and to make good and sufficient deeds, conveyances and assurances to the purchaser or purchasers thereof, who shall not be bound to see to the application of the purchase-money, or responsible for any unfaithfulness or default of my said trustees. I appoint tbe said Fidelity Trust and Safe Deposit Company and my said son Clement J. Smith, executors of this, my will.’
    “Mr. Weil, representing the interests of several of Mrs. Smith’s children, who desire that whatever may be awarded them shall be given to them absolutely and not be encumbered with the trust, presented three reasons for holding the trust of this share of Mrs. Smith’s estate invalid. It was argued first that Mrs. Smith never had control over any part of this fund under her father’s will, that therefore it could not be included in this trust created in her own will out of the funds derived from' her father’s estate. The words of Lewis Ryan’s will are, that the trustees shall pay over to the appointees of the daughters ‘ the principal sum on which such daughter so dying was entitled to receive the income or interest.’ It was urged before the auditor that the execution of a power must be strictly construed, and that unless the exercise of it came clearly within the letter of the authority, it is void; that as a matter of fact Mrs. Smith never for one moment during her life was actually entitled to receive a dollar of the income derived from Miss Martha Ryan’s share, because Mrs. Smith had died before Miss Ann Ryan’s life estate in it had expired. ' The auditor does not think that this view can be sustained. It is in accord with the principles laid down in all of the cases, to hold, that upon the failure to appoint on the part of Martha the share subject to her power of appointment, went as directed under the will of Lewis Ryan, and that the rights thus acquired vested in interest immediately upon the happening of the contingency contemplated by his will, i. e., the death of Martha without an appointment and without children. In Bristow v. Skirrow, L. R. 10 Eq. 1, 0. bequeathed a household estate after his wife’s death in default of her appointment to his next of kin living at the death of the survivor of himself and his wife. She only gave a life-interest in it to T., and it was held that it vested in the next of kin of the testator living at the death of the wife, subject to the life-interest of T. The same state of facts exists in the present ease, and the two surviving daughters were entitled upon the death of Martha to receive each one-half of the income derived from this share, in accordance with the will of the testator, subject to Miss Ann Ryan’s life interest. There is nothing in the will, it must be observed, which limits the exercise of the power of appointment to that part of the principal, the income from which the daughter was entitled to receive, and which she actually did receive during her. lifetime; it is simply a general right to dispose of all that from which she was entitled to receive the income, whether in the present or the future, so long as the right was an actual vested right and not a mere contingent remainder. This question is really one of great importance to the heirs, for unless the children of Mrs. Smith claim under her appointment they must seek a title through some other source. It is however unnecessary to discuss this question further, for the auditor is of the opinion that Mrs. Smith had the right to exercise her power of appointment over one-half of this share.
    “ 2. It was argued that the trust created by Mrs. Smith’s will of this estate is void, as infringing the law against perpetuities. It will be remembered that in the statement of facts agreed upon, it is noticed that all of Mrs. Smith’s children were living at the death of Lewis Ryan.
    ‘‘In argument the counsel for the cestuis que trustent callep attention to the rule of construction, that whenever a limitation may be void, the law will so consider it: 1 Jarman on Wills 233; Williams on Real Property *263 ; but the cases supporting the rule so slated are all of them cases in which the rule might be infringed by reason of some state of facts which might exist, and in that case the devise is void, notwithstanding the possibility of the now-existence of the state of facts, e. g.: ‘ If the devise or bequest be in favor of an unborn person, who may not answer the. required description within a life and twenty-one years, it will be void, although a person should happen to answer the description within such period.’ In this case the rule was attempted to be applied, because of the possibility that the children, with whom was lodged a power of appointment under this will, might improperly exercise it; but it is clear that it is not- the possibility of a voluntary violation of a rule of law which renders a devise void, but the possibility that without the violation of any one, there may exist a state of facts which would render the trust void. Otherwise, the rule might be applied to every case in which dominion over property is given to the devisee. Ilad the testatrix given this power of appointment to children not in esse at the time of the death of the original testator, then it would undoubtedly be a void execution of the power: Wollaston v. King, 8 Eq. 165. Not so, however, if, as was expressly admitted, all of the donees of the powers under Mrs. Smith’s will were alive at the time of the original testator’s death: Farwell on Powers 227, 257; Sugden on Powers 492; Phipson v. Turner, 9 Sim. 227; Slack v. Dakyns, L. R. 15 Eq. 307. In the last cited case, a testator gave certain property upon trust for his granddaughter for life, and after her death to such of her children as she should appoint. She appointed to each of five children (all of whom were living at the death of the original testator), and ‘after the death of each child, directed that the share in which the child had a life-interest should be held in such manner as the child might by will appoint, with limitations over, in default of appointment, in favor of the children of said five children : * * Held a good exercise of the power of appointment given by the will of the testator.’ The same principle certainly controls this case.”
    The auditor made a scheme of distribution in accordance with the views expressed in this report. To this report, the following, among other exceptions, were filed by the appellants:
    1. The auditor erred in awarding three-fourths of the residuary estate to the legatees under the will of Ann Ryan.
    2. In awarding one-fourth of the residuary estate to the trustees under the will of Mary V. J. Smith.

      4. In not awarding two-thirds of the balance of the residuary estate to the distributees under the will of Ann E. Ryan ; one-sixth thereof to the trustees under the will of Mary Y. J. Smith, and one-sixth to the children of Mrs. Catherine Reilly.
    6. The auditor erred in his conclusion of law, that the share of the estate from which Martha Ryan received the income, was to be distributed, one-half in accordance with the will of Ann E. Ryan and one-half in accordance of the will of Mary Y. J. Smith.
    7. The auditor erred in not awarding to the children of Catherine Reilly one-third of the principal from which Martha Ryan received the income.

    The court dismissed the exceptions and confirmed the report, and from this decree this appeal was taken.

      George Biddle and George W. Biddle, for appellants.
    The appellants, Mrs. Reilly’s children, assert for themselves the right to share in that, portion of their grandfather’s residuary estate only to which their mother would have been entitled had she lived, but no more. They contend that at Martha Ryan’s death her estate continued, in trust, “in equal proportions,” which was, as the testator says, “in the same manner as hereinbefore directed as to the residue of my estate;” the trusts being the same trusts that he had already provided for his surviving children. The “ surviving children,” at the date of the will, were, of course, Mary (Mrs. Smith), Martha and Ann, because Mrs. Reilly had already died.
    In construing any will, it is well established that the intention of the restator is to be gathered from the whole face of the will. This intention, when found, has to be carried into effect as far as possible, and any particular clause must yield to what appears to he the whole scheme of the instrument: Sheetz’s Appeal, 1 Norris 213; Middleswarth v. Blackmore, 24 P. F. Smith 414.
    It follows, therefore, that when two .constructions can be given to a clause of the will, that one is to be preferred which best effectuates, not some particular intent, which may be extracted from the words of one clause, but that general intent drawn from the whole instrument.
    In a conflict between the general intent and a particular one, the former must prevail: Musselman’s Estate, 5 Watts 9; Doebler’s Appeal, 14 P. F. Smith 9; Hitchcock v. Hitchcock, 11 Casey 393; Sheetz’s Appeal, 1 Norris 213; Middleswarth v. Blackmore, 24 P. F. Smith 414. Now, among the principles.laid down for the determination of the general intent, there, are three which apply with peculiar force to the present case.
    1. The scheme of distribution apparent from a study of the instrument as a whole, is to be carried into effect, rather than its particular clauses; and especially it is true where the scheme is one of equality: Malone v. Dobbins, 11 Harris 296; Weber’s Appeal, 5 Id. 474.
    2. The heirs-at-law can only be disinherited by an express devise, or by necessary implication, absolutely inconsistent with the intestate law. A testator is presumed to intend that all those entitled under the intestate laws, shall take under his will, and every fair intendment is to be made in their favor: Rupp v. Eberly, 29 P. F. Smith 141; Hitchcock v. Hitchcock, 11 Casey 393; Lipman’s Appeal, 6 Id. 180; Cowles v. Cowles, 3 P. F. Smith 175; Stehman’s Appeal, 9 Wright 398; France’s Estate, 25 P. F. Smith 220.
    (1.) It makes an unequal distribution, under this clause, of the shares of daughters dying intestate, while the whole scheme of the will is that the estate shall be equally divided among the four daughters, or their legal representatives.
    3. That a testator is not supposed to contemplate intestacy as to any portion of his estate, but that his will is to be effective under any contingency. If, therefore, of two possible constructions of a clause, the one, under some circumstances, possible at the date of the will, might become void and nugatory as to part of the property, while the other clause would be effective under all circumstances, the latter is to be preferred: Doebler’s Appeal, 14 P. F. Smith 9.
    Now, the construction put upon this clause of Lewis Ryan’s will, by the court below, signally violates every one of these rules.
    (2.) It disinherits some of the heirs-at-law of the testator, viz. : the children of Mrs. Catherine Reilly, while the words of the clause in question can be grammatically construed, in the order in wdiich they occur in the will, to include these very heirs so as to allow' them to participate in this share.
    (3.) It gives a construction to the will, w'hich, under circumstances perfectly possible to have occurred at the time the will was made, would have rendered the will inoperative; and made the testator die intestate, as to the share in question. The word “ children” should be read to include grandchildren.

      M Spencer Miller, for appellees.

       Another appeal was taken in these proceedings, a report of which will be found in the succeeding case: Smith's Appeal, post, 493. — Rep.

   Mr. Justice Sterrett

delivered the opinion of the court, May 5th 1879.

Lewis Ryan died in 1850, leaving three daughters, Ann, Martha and Mary, and five grandchildren who were the children of his deceased daughter Catherine, wife of Philip Reilly. After making specific disposition of a part, the testator gave all the rest, residue and remainder of his property, real, personal and mixed to trustees, with full power and authority to sell, invest and collect the income and interest thereof; in trust, however, to divide the said income and interest into four equal shares or parts; to pay one full and equal part thereof, half yearly, to each of his daughters above named, during life, for her sole and separate use, and the remaining fourth part to his son-in-law, Philip Reilly, for the maintenance and education of his grandchildren above named, until they should severally attain the age of twenty-one years; then in further trust, to pay to each grandchild the principal or capital sum on which he or she had been receiving the income and interest, with the proviso that if any of these grandchildren should die under the age of twenty-one, leaving lawful issue, the share of such grandchild-should go to the issue, and if any of them should die under age and without issue, the survivors should take his or her share. The one-fourth of the residuary estate was thus given, first in trust and in the end absolutely, to the children of Mrs. Reilly, so that in no contingency could thfe testator’s daughters, under the provisions of his will, participate in that part of his residuary estate. The trusts, as to the other three-fourths, for the benefit of his daughters, were materially different. After providing as above stated, for the payment of one-fourth of the interest and income to each semi-annually during life, he disposed of the principal or capital sum' from which such income and interest were derived, as follows: “ from and immediately after the death of either of my said daughters, in trust, to pay, assign, transfer and set over the principal sum on which such daughter, so dying, was entitled to receive the income or interest, to such person or persons and for such uses, interests and purposes as such daughter, by any last will or testatment or instrument of writing in the nature of a last will or testament, notwithstanding her coverture, may direct, limit and appoint to receive the same; and for want of any such last will and testament, then to pay the said principal sum to the child or children of such daughter in equal shares or proportions ; but if either of my said daughters shall die ' without leaving issue, and without any last will and testament, then it is my will and desire that the share or portion of such daughter shall be continued under the same trusts as hereinbefore provided, for the use and benefit of my surviving children in equal proportions, in the same manner as hereinbefore directed as to the residue of my estate.”

The testator’s daughter Martha died in 1865, without issue, and without having exercised the power of appointment with which she was clothed by her father’s will, and the present contention has arisen in regard to the proper construction of the italicized portion of the residuary, clause above quoted. The children of Mrs. Reilly, appellants, claim that they are entitled to participate in the share or portion of the residuary estate which was held in trust for their aunt, Martha Ryan; while, on the other hand, the appellees contend that, by the terms of the will, they are excluded, and have no interest therein; that the principal or capital sum, on which Martha received the interest or income, was continued for the use and benefit of the testator’s surviving children, in equal proportions, under the same trusts that are provided for them in the previous part of the residuary clause.

The auditor and the Orphans’ Court held that upon Martha’s decease, without children and without having exercised the power of appointment as- to the principal, the right to receive the income in equal proportions vested in her surviving sisters Mary and Ann, subject to the life-interest, of the latter under Martha’s will, and that therefore each was entitled to appoint one-half of the principal by will. It appears to us that this is the only construction of which the clause under consideration is fairly susceptible. If the testator had omitted the phrase “ for the use and benefit of my surviving children,” or had added thereto the words “ and grandchildren,” or if we were at liberty to construe the word children as including grandchildren, there would be no difficulty in giving effect to the will in favor of appellants; but there is nothing in the instrument that would justify us in striking out or supplying these words respectively, or in enlarging the meaning of the word children so as to embrace grandchildren. It is the well-established rule of construction in this state, as well as elsewhere, that the word children in a will does not include grandchildren, unless it appears from the context to have boon so intended by the testator, or such meaning is necessary to carry out his manifest intent, neither of which appears to exist in this case. Nor is the meaning of the will rendered so doubtful by antagonistic clauses or the use of ambiguous language as to justify a departure from the ordinary rule, requiring a testamentary paper to be construed according to its natural and ordinary import. If the will contained such clauses, or if such ambiguous language was employed as to render its meaning doubtful, it would be our duty to adopt that construction which would, as nearly as practicable, bring about equality of distribution, llut we fail to find in this will any such inconsistency or ambiguity as would justify the application of this principle.

Upon the happening of the contingency, which occurred on the death of Martha, the capital representing one-fourth of the residuary estate was directed to be continued in trust. For whose benefit was the trust continued ? The will says, “ for the use and benefit of my surviving children.” Those are both natural and apt disposing words, and the only words in the sentence under consideration that are really descriptive of the beneficiaries. Then follow the words “in equal proportions,” indicating how the surviving daughters are to take. Then again when we inquire what was the character of the trust under which Martha’s share of the principal was to be continued, the language of the will furnishes the answer, “under the same trusts as hereinbefore provided.” The surviving daughters are thus made the beneficiaries, and the latter words are descriptive of the trust created for their benefit; and the concluding phrase of the sentence, “ in the same manner as hereinbefore directed as to the residue of my estate,” are further descriptive of the trust and its incidents. These words would seem to indicate that as the original portions of the principal, the income or interest of which his daughters were to receive respectively, were subjected to the power of appointment vested in the daughters, so the quarter of the principal added in equal proportions to the shares of each of the surviving daughters should serve the purpose of increasing their income, and in the end be subject also to the power of appointment before given them respectively.

The difficulties attending the construction contended for by the appellants have been so fully pointed out by the learned auditor that it is unnecessary to add anything thereto. It may be that the testator intended that his grandchildren, the appellants, should, together with his surviving children, be beneficiaries of the continued trust, but if he did, he failed to use language expressive of such intent; on the contrary, we think the language employed evinces a contrary intention.

Decree affirmed, and appeal dismissed at the costs of the appellants.