text:
    Deginther’s Appeal. Haas’s Executor’s Appeal.
    A married woman took out a policy of insurance upon the life of her husband, which was made payable to her, her executors, administrators or assigns, and died intestate during the lifetime of the husband, leaving two children. After the husband's death, upon the distribution of the proceeds of the policy, the representative of the husband claimed one-third thereof, which claim was rejected by the court below. Held, that this was error, and that the estate of the husband should have been awarded the one-third of the fund.
    January 25th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1875, No. 138. ’
    This was the appeal of Henry Baltz, executor of John Haas, deceased, from the decree of the court making distribution of the estate of Ohristianna Haas, deceased. .
    Ohristianna Haas, who was the wife of John Haas, took out a 'policy of insurance on the life of her husband for $1500 in the American Life Insurance Company of Philadelphia. The amount of the policy was made payable “to Ohristianna Haas, wife of said John Haas, her executors, administrators and assignees, within sixty days after the notice and satisfactory proof of the death of the said John Haas.” Ohristianna died in 1868, leaving her husband and two sons, both of whom are living. After the death of Ohristianna Haas, John Haas married Magdalena Haas (now Deginther).
    In 1871 John Haas died, leaving a will, in which he gave to his wife one-third of his estate, “except the $1500 which was left to my two sons by their mother, Ohristianna Haas.” Magdalena Deginther refused to take under this will of her husband, and before an auditor appointed to distribute the estate of Ohristianna Haas, she, through the executor of John Haas, deceased, claimed that the estate of the latter was entitled to one-third of the amount of the policy.'
    The auditor rejected this claim and awarded the fund to the children of John Haas and Ohristianna Haas, on the ground that, the policy of insurance not being payable until after the death of John Haas no property in said policy or proceeds could vest in said John Haas at the death of Ohristianna Haas, and as the -claims of Magdalena Deginther depended upon that of John Haas her claim, also, must consequently fail.
    Exceptions were filed to this report by the executor of John Haas, alleging that the auditor erred in not awarding one-third of the proceeds to the estate of John Haas, deceased, which exceptions the court dismissed and confirmed the report.
    From this decree this appeal was taken.
    The appeal was improperly taken in the name of Magdalena Deginther, but by agreement of counsel it was considered the appeal of the executor of John Haas.

      Stephen S. Hemalc, for the executor of John Haas, appellant.

      William S. Staalce, for the administrator of Christianna Haas, appellee.
   Mr. Justice Sharswood

delivered the opinion of the court, February 5th 1877.

. By the agreement of the counsel, this appeal is to be considered as the appeal of Henry Baltz, executor of the last will and testament of John Haas, deceased. It is conceded that Magdalena Deginthcr had no" standing in the court below, and has none in this court. She can only claim under the personal representative of her husband.

The question presented is a very nice one, and the solution of it is not without difficulty. The policy of insurance — the proceeds of which are now in the hands of the administrator of Christianna Haas for distribution — is not within the provisions of the Act of April 9th 1850, entitled “An Act to incorporate the American Life and Health Company,” Pamph. L. 429, the corporation by which the policy was granted. By the 14th section of that act it is enacted that “ it shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent as her trustee, to cause to be insured, for her sole use, the life of her husband; and in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of insurance, shall be payable to and for her own use, free from the claims of the representatives of her husband or of any of his creditors;” and by section 15, “in case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable, after death, to her children, for their use, and to their guardian, if under age.” By the policy out of which this controversy has arisen, the company did promise to pay or cause to be paid the sum insured to Christianna Haas, wife of John Haas (whose life was insured), her executors, administrators and assigns, within sixty days after due notice and satisfactory proof of the death of the said John Haas. The fourteenth section does not apply, for the policy is not for the sole use of Christianna Haas, and she did not survive her husband; and the fifteenth section is equally inapplicable, for the policy was not made payable after death to her children for their use, and to their guardian, if under age. It was payable to her, if she survived her husband; but if she was dead when it became payable at his death, then to her executors, administrators and assigns. It has accordingly been paid to her administrator, and he holds in trust for distribution among the persons entitled under the laws of this Commonwealth to her estate, she having died intestate.

By the 9th section of the Act of April 11th 1848, commonly called the Married Woman’s Act, Pamph. L. 537, it is provided, “ That when any married woman, possessed of separate property as aforesaid, shall die intestate, hor husband shall be first entitled to letters of administration on her estate, which shall be distributed as follows: If such married woman shall leave no children nor the descendants of such living, the husband shall be entitled to such personal estate absolutely. If such married woman shall leave a child or children living, her personal estate shall be divided amongst the husband and such child or children, share and share alike. If any such child or children, being dead, shall have left issue, such issue shall be entitled to the share of the parent.”

The contention of the appellee is, that as John Haas, the husband, survived his wife, the estate vested in the administrator of Christianna, at the moment of his death, and that having then ceased to exist, he could have had no claim upon Christianna’s estate which could pass to his personal representative. The argument appears to he too refined. If it be a sound universal position, that a man’s representatives are not entitled to anything not vested in him at the time of his death, though coming to his estate on the happening of a subsequent contingency, neither could Christianna’s representatives be entitled, under this construction of the. law, for she was not possessed of this property at the time of her death. The words “executors, administrators and assigns” were really not necessary under the policy to entitle her representative to the insurance money. They showed affirmatively that there was no intention to limit it specifically to her children, as might have been done under the fifteenth section of the Act of 1850. It is not and cannot be pretended that if this insurance for the benefit of Christianna had. been upon the life of a third person, and John Haas had been living when the life fell, he would not have been entitled as a distributee. Ought it to make any difference that the insurance was upon his own life? We must look at the general intent of the act in a case of this peculiar nature — not within the strict letter of the statute. Qui hceret in litera, hceret in cortice. If Christianna had died leaving no children or they had died without leaving descendants — in which case the husband would have been entitled to the whole estate — must it have gone in this event which has happened to her collateral next of kin? We are of opinion, that as soon as it is settled that the insurance money is part of the personal estate of Christianna, it is to be considered, for all the purposes of distribution, to have been hers at the time of her death, and her next of kin, then entitled and those lawfully claiming under them, would be the distributees. At that time John Haas was living and was entitled to one-third of her estate under the Act of 1848. It is not stretching the construction of the statute beyond what is legitimate to hold that her estate includes for purposes of distribution, not only what was then her estate, but what might have become so, on. contingencies happening afterwards. It appears to us, then, that the executor of John Haas was entitled to one-third of the fund and the decree below should be reformed accordingly.

Decree reversed, and record remitted that a decree of distribution may be entered in the Orphans’ Court in conformity to this opinion. Each party to pay his own costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Biddle’s Appeal. Nicklin’s Estate.
    1. Upon the termination of a trust where the real estate remained unsold and the commissions on the rents were not an adequate compensation for the care and management of the estate, an amount proportionate’to the trouble and responsibility incurred was taken from the corpus of the estate and paid to the trustees.
    2. Trustees had the care and management of an estate consisting of city and suburban property for nineteen years. The character of the property was such that it required attention and involved trouble and responsibility. At the expiration of the trust, the real estate, which was valued at $204,000, remained unsold. The commission on the rents received by the trustees amounted to only about $200 per year. Held, that $2000 as additional compensation for their care and management of the estate, was a proper allowance, and that this amount should be taken from the corpus of the estate.
    3. An attempt was made by the cestuis que Irusteni to surcharge the trustees with certain items, which claim the court below rejected. The trustees paid $250 counsel fees to resist this and conduct other litigation, all of which arose at the instance of the beneficiaries. There were no other charges for professional services during the continuance of the trust, which was managed with care, fidelity and economy. Held, that this charge of $250 was moderate and should have been allowed.
    January 25th 1877.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1876, No. 27.
    This was the appeal of George W. and Chapman Biddle, trustees, under the will of Mrs. Julia M. Nicklin, deceased, from the decree of the court sur exceptions to the adjudication of the account of said trustees.
    Mrs. Nicklin died May 22d 1855, and the trustees assumed the duties of the trust a few days thereafter. By the terms of the trust, they were to collect the rents and profits of her estate, and pay the net income to her sisters, Miss Maria McPherson and Mrs. Margaret Washington, for their lives, and after the death of both to transfer and convey the estate to their descendants. Miss McPherson died unmarried, and Mrs. Washington died leaving one child,’ Julia M., now married to Dr. Caleb Hornor, in whom has vested the entire estate free from the trust. The property left in trust was chiefly real estate, consisting of two stores on Chestnut street, two small houses on China street, and a farm of about sixty acres, called Stouton, on.the north-eastern limits of the city of Philadelphia. This farm, now a tract of about 50 acres, 10 acres having been sold by the trustees, is in the Twenty-fifth ward, the city being built up to it on two sides. Through this property streets were opened, and various municipal improvements, such as curbing, paving, &c., made, all of which required care and watchfulness on the part of the trustees.
    In their account filed the trustees made no charge for collection of the rents, or for making up their accounts, nor for professional services in appearing before road juries and obtaining damages for the opening of streets through the farm. The value of this farm was about $140,000, and the average commission of the trustees on the rent was about $35 per annum. The whole estate was valued at about $204,000, and the average commission on the income thereof was about $209.15 per year.
    . Before the auditing judge the accountants claimed, 1. Commissions on the amount of purchase-money received on the sale of 19 lots of ground 4 per cent, on $2090. 2. A counsel fee of $250,
    for professional services rendered to them. 3. A commission of' 3 per cent, -on the value, of the estate remaining unsold at the time of the death of the cestui que trust.

    On behalf of Mr?. Hornor it was claimed,
    1. That accountants should not be allowed the credits claimed for payment of taxes on Stouton farm, inasmuch as they negligently permitted the property to be rated as “ suburban,” instead of “farm land,” and that the trustees should be surcharged with the difference, $575.54.
    2. That accountants be surcharged with the difference between the .rent they received for “ Stouton,” and a higher rent, which it is alleged could have been obtained, and which was offered for the place, viz.:—
    From April 1st 1862. to April 1st 1867, $225 per an.j $1275.00 “ “ “ 1867' “ “ 1876, 200 “> 1800.00
    $3075.00
    3. Objection was also made to rate of commissions asked on real estate sold; to counsel fees, and to any commissions on the corpus of the estate.
    The auditing judge, O’Brien, J., allowed 3 per cent, commissions on the sale of the 19 lotsj and also the $250 counsel fees, and disallowed the claim of commissions on the corpus of the estate, but, under the authority of'Twaddell’s Appeal, 1 Weekly Notes 227, allowed the trustees $2000 as compensation for their long-continued services.

      Both the claims of Mrs. Hornor to surcharge the trustees with taxes and rent were overruled.
    Exceptions were filed to this adjudication by all the parties.
    The Orphans’ Court reduced the allowance for counsel fees from $250 to $175, and struck out the allowance of $2000 out of the corpus of the estate, ITanna, J., in delivering the opinion, saying:—
    “ The first exception of the cestui que trust is, therefore; in part sustained. In all the authorities upon the subject of commissions or compensation to trustees, and others in that capacity, we have been unable to discover an instance wherein a trustee, having the charge of real estate, and collecting the rents for a series of years, upon which he has deducted the usual commissions of five per cent., has, at the termination of the trust, the real estate being unconverted, been allowed either a commission upon the valuation of the real estate, or a gross sum, as compensation for services during the continuance of the trust. The real estate was valued by the trustees at $204,000, on which they claimed three per cent, commissions. Being of opinion that a claim of this nature is not sustainable, it was properly refused. While the compensation of a trustee is always regulated by the particular circumstances of each case, and although a general rate has been adopted as applicable to a majority of cases, yet where the facts disclose unusual labor and services performed, they will be regarded as sufficient to take the case out of the general rule, and entitle the trustee to an additional compensation. In ordinary cases the usual allowance of five per cent, is sufficient as well to cover necessary expenses, as for care, labor and hazard (Gable’s Appeal, 12 Casey 395), and unless a contrary intention appear, the compensation must come out of the income of the fund (Spangler’s Estate, 9 Harris 335). The usual duties of a trustee comprise the care and supervision of the estate, collection of income, payment of taxes and interest upon encumbrances, and leasing and keeping the real estate in repair. If their performance requires extraordinary labor or unusual trouble, he should be liberally rewarded; but if not, then the customary rate of compensation only should be allowed. As we cannot gather from the evidence that the services rendered by accountants were other than those ordinarily demanded in the execution of similar trusts, the exceptions of the cestui que trust are sustained.”
    From this decree the trustees took this appeal.

      S. 8. Hollingsworth and William A. Porter, for appellants.—
    No authority can be discovered where it is said that trustees are not entitled to compensation where the trust property consists of unconverted real estate, and it is contended that in this state trustees are entitled to compensation for their risk and trouble out of the corpus of the estate, whether the trust is for colléction and distribution, or for custody and management, whether the corpus be personal property either derived from personal securities or from sales of real estate, or whether it be real estate unconverted at the termination of the trust. The contention that when the trust property consists of real estate, the compensation of the trustees is limited to the commission usually allowed on the rents, is based upon one of two propositions, both of which are erroneous. It either means that the right to compensation at all is in some way dependent on the character of the trust property, or 'it means that there is ordinarily no responsibility or trouble in the management of real estate. The first of these propositions has already been shown to be incorrect, and the second is contradicted by the experience of every man who has ever owned real estate.
    In Twaddell’s Appeal, 1 Weekly Notes 227, $1000 were allowed as compensation out of the corpus of a trust property consisting of unconverted real estate. The question involved in this case did not arise in Spangler’s Estate, 9 Harris 335.
    The rate of commissions which has been established by practice in Philadelphia county where real estate has been converted, is three per cent., while an examination of the cases decided by this court, from Stevenson’s Estate, 4 Wharton 98, down to Eshleman’s Appeal, 24 P. F. Smith 42, shows that the average rate of commission upon the proceeds of real estate sold has been three and one-third per cent.; and it is argued, therefore, that where labor, care and l’esponsibility were incurred in the management of a large estate, three per cent, is no more than a just compensation for such services.

      JE. Spencer Miller, for appellees.
    — The appellants have not been able to produce a single case in which commissions have been allowed upon unsold real estate. The reason is obvious. It is text-book law that the tenant for life is bound to make all repairs and to keep down encumbrances. He has the enjoyment of the property, and the maxim is “ qui sentit commodum debet sentiré et onus.” The remainderman has nothing whatever to do with the property until the falling in of the life-estate; the duty and responsibility of properly caring for it devolve upon the tenant for life. Where, therefore, there is a trust, the duties of the trustee respecting the payment of taxes, making repairs, &c., are performed on behalf of the tenant for life as clearly as the collection of the rents. He must, therefore, pay for these services out of the rents received by him; in other words, the commissions on the income include compensation for all the services and responsibility of the trustee. That compensation of the trustee should come solely out of the income. See Spangler’s Estate, 9 Harris 335.
    MijCausland’s Appeal, 2 Wright 466, precisely governs this case.
    In Twaddell’s Appeal, supra, the executors had a power of sale, but did not hold the legal title. The property was not “ trust property,” as stated by appellants. They performed certain duties with regard to the land — planting trees, offering it for sale, &c.— and this court said that “ commissions as such rvere not earned and are not recoverable.” The sum of $1000 was allowed them for actual labor, but this bears no analogy to a claim for commissions by trustees who have already been paid out of the income.
   Mr. Justice Paxson

delivered the opinion of the court, February 5th 1877.

This record presents the question whether trustees of real estate who have had the care of it for several years, and received a commission upon the income, are entitled to further commissions or compensation out of the corpus of the estate when they come to hand it over to those entitled in remainder upon the termination of the trust. The learned judge of the Orphans’ Court, who made the adjudication at chambers, allowed the appellants $2000 as such compensation. Exceptions were filed to this allowance, whereupon the Orphans’ Court reversed the action of the judge at chambers, and rejected the claim. This ruling is assigned here for error.

The claim of the appellants is resisted mainly upon two grounds, viz.: 1st. Because no case can be found in which such a claim has been allowed; and, 2d. Because the estate in the hands of the remaindermen is not liable to any charge for commissions, the same being payable exclusively out of the income. The first objection, while entitled to weight, is not conclusive. In the absence of authority it is sometimes necessary to decide cases upon principle. When so decided they become precedents for subsequent cases. It is no sufficient answer to a valid claim to say that no adjudicated case can be found which is precisely in point. We see no difficulty in disposing of this question both upon reason and authority. In Twaddell’s Appeal, 1 Weekly Notes 227, it was held that where no sale of the real estate had been made by the trustee, he was not entitled to charge commissions as such. But it was also held, that he had a right to compensation. 'In that case the trustee was merely the donee of a power. The power was never exercised. The parties in interest elected to take the real estate devised as land. The trustee had advertised the property for sale, and had planted some trees. The Orphans’ Court awarded him $1000 as compensation, and upon appeal to this court the decree was affirmed. The general rule running through all the cases is, that a trustee should receive a compensation adequate to his care and trouble. Such compensation is proportioned to responsibility incurred and to the labor and care bestowed: Pusey v. Clemson, 9 S. & R. 207; McElhenny’s Appeal, 10 Wright 347. In the case last cited there is a distinct recognition of the principle that commissions qn the income of real estate may be a wholly inadequate compensation for its care and management. It must be conceded, that if the appellants in this case had sold the real estate at the commencement of the trust they would have been entitled to the usual commissions upon such sale. They did not sell, hut held i't for nearly nineteen years, to the great advantage of those in remainder, and to the manifest increase of their own care and trouble. There. is neither authority nor reason for a rule which would give liberal commissions upon a sale, and yet deny all compensation for years of careful management. The fact that the ajipellants received a commission upon the income is not to the purpose. It does not affect the principle. It bears merely upon the amount of compensation. In some instances a commission upon the income of real estate would be a full compensation for the care of it, in others it would be wholly inadequate. The second ground of objection, that compensation for care and management can only be taken out of income, is equally untenable. Had the trustees sold the realty the commissions would have copie out of the corpus of the estate. They did sell a portion of it, and took out their commissions ivithout objection. That they did not sell the residue was for the benefit of those in remainder. They should therefore pay for the care and management. The life-tenants paid for the collection of the rents, which were for their benefit. It Avould be unjust to require them to pay for the care and management of the property for several years, Avlien their interests would have been greatly promoted by its sale. Spangler’s Appeal, 9 Harris 335, is not in point. The question there Avas Avhether the trustee, the cestui que trust, being an annuitant, should deduct his commissions out of the income as it Avas paid over. If the appellants here had paid over the gross income to the life-tenants Ave do not think they could successfully claim commissions on such income out of the corpus of the estate. But for so much of their care and management of the real estate as was directly and palpably for the interest of the remaindermen, Ave think they are entitled to be paid. The learned judge Avho made the adjudication alloAved the appellants $2000. We would not be disposed to reverse his decision upon the question of amount unless for clear error. The testimony reported by him as to the extent of the care and labor bestoAved is not full. Yet, as to a portion of the real estate, it is not difficult to see that a commission on the rents ayouM not be an adequate compensation for its management. Stouton farm, by far the most valuable portion of this estate, is located on the outskirts of the city. It is in the immediate vicinity of improvements, and streets have been opened through portions of it. There is no class of property that requires more constant care than rural property in the out-lying wards of a large city. The opening of streets through this property required attendance upon road juries, and involved claims for damages and assessments for benefits. There was responsibility also. The liability of such property to municipal liens requires constant vigilance. The title may be swept away by a judicial sale upon a judgment recovered without notice to the real owner, upon a claim filed against an unknown reputed owner. The pittance received by the appellants as a commission on the rents of this valuable property is no proper compensation for the care and management of it for nineteen years. We think, therefore, that it was error to set aside the adjudication. From the facts, as presented, the amount fixed by the learned judge appears reasonable. We are asked by the appellants to increase it. We do not feel justified upon the evidence in doing so.

We think the court below also erred in reducing the amount allowed for counsel fees. The accountants Avere put upon the defensive by an attempt on the part of the eestuis que trustent to surcharge them with a large sum for alleged laches in the matter of rent and taxes. This attempt failed, and very properly. The entire claim of the accountants for the care of the corpus of the estate was also resisted. This claim has been allowed in part. An offer' Avas made by the accountants to refer the question of their commissions to the arbitrament of Joseph A. Clay, Esq., an Orphans’ Court laAvyer of ripe experience. This offer the eestuis que trustent declined, although advised by their counsel to accept it. It thus appears that the charge for counsel fees was the result of their OAvn unsuccessful litigation. Their oavu conduct rendered it a necessity. Nor is the amount unreasonable. It is but just to the appellants to say that this estate appears to have been managed not only with care and fidelity, but also with economy. We notice no charge for professional services during the continuance of the trust, except one of $23.50 in an injunction case. The litigation incident to opening streets through the farm appears to have been conducted without cost to the estate for counsel fees. Under the circumstances the amount claimed Avas moderate and ought to have been alloAved.

The decree is reversed and set aside; the adjudication made at chambers is approved and confirmed, and distribution .ordered to be made in accordance therewith; the costs of this appeal to be paid by the appellees.


author: Mr. Justice Woodward

text:
    Seymour et al. versus Hubert.
    1. An executor or administrator is not required to flic an affidavit of defence in a suit on a contract made by a decedent where the cause of .action arose before the decease of the latter. w-ris

    2. Executors filed an affidavit of defence to a scire facias to remaste a judgment entered in the lifetime of decedent, wherein they set forth that they were informed, believed, and expected to prove that there was nothing due on the judgment, the whole amount having been paid in usurious interest. Held, to be a sufficient defence.
    January 26th 18T7.
    Before Agneav, C. J., Sharswood, Mercur, Gordon, Paxson and Woodavard, JJ. Williams, J., absent.

      Error to the Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 139.
    This was a scire facias to revive judgment et quare executionem non issued by Alice Hubert against Sarah Lewis'and the executors of Sarah Tingle, deceased.
    The judgment was entered December 17th 1873, on a judgment-note given by Sarah Lewis and Sarah Tingle to Alice Hubert. Sarah Tingle died in 1874, and the scire facias in this case issued January 22d 1875, returnable on the first Monday of February 1875. On the 6th of February 1875 the court granted a rule to set the scire facias aside and open the original judgment, and pending this rule, on the 10th of May gave the defendants five days to file an affidavit of defence, proceedings meantime to stay.
    On the 12th of May an affidavit of defence was filed by Sarah Lewis, alleging her coverture and minority, and on the 19th of the same month one of the executors of Sarah Tingle filed an affidavit, setting forth that they were informed,, believed and expected to prove that at the time of paying the note, decedent was a married woman, and that there was nothing due on said judgment as the whole of the amount claimed had been paid in usurious interest.
    The court entered judgment for the plaintiff for want of a sufficient affidavit of defence and this entry was assigned for error.'

      J. A. Burton, for plaintiffs in error.
    — The entry of judgment was erroneous, as executors are not required to file an affidavit of defence in a suit upon a contract of a decedent: Edwards v. Ewing, 4 Yeates 235; Leibert v. Hocker, 1 Miles 263.

      A. Thompson and Greorge Tucker Bispham, for defendant in error.
    — Seibert v. Hocker, supra, simply goes to the extent .of holding that when an action is brought on a contract made by a decedent his administrator is not bound to put in an affidavit of defence, the reason being that he is not supposed to be cognizant of the transaction. No decision of this court, however, extends the exception to where the amount of the debt due by the decedent has been actually ascertained by judgment.
   Mr. Justice Woodward

delivered the opinion of the court, February 12th 1877.

For a variety of reasons this judgment cannot be sustained. On the 6th of February 1875, a rule was granted to set the scire facias aside and open the original judgment. This rule was pending and undetermined when judgment for want of an affidavit of defence was entered. But apart from this irregularity it is difficult to discover essential defect in the affidavit made by Joshua P. B. Eddy, one of the defendants. He swore that he had been informed, and believed, that there was nothing due on the judgment, but that the whole amount of it had been paid by illegal and usurious interest to the plaintiff; and he averred that he expected to be able on the trial to prove the truth of his statement. It was objected on the argument that' the language of the affidavit did not exclude the possible conclusion that the alleged payment was made on the note before the original judgment was entered. Some facts may have been developed in the previous proceedings in the Common Pleas to give foundation for the objection, but no implication of such a conclusion is consistent with the plain terms of the paper itself.

A still more important question is contained in this record. Two of the defendants were sued as executors of Sarah Tingle, deceased. In Leibert v. Hocker, 1 Miles 263, it was decided that an executor or administrator was not required to file an affidavit of defence in an action on a decedent’s contract. The same rule was applied to a suit against the committee of a lunatic in Alexander v. Ticknor, 1 Phila. R. 120. Those decisions expressed what is believed to have been the pervading professional impression in this state. In many, perhaps in all the judicial districts where rules of court, in the absence of statutory provision, have required specific defences to be set out, actions against executors and administrators have been expressly exempted from their operation. Where the practice has been regulated by statute, such actions have uniformly been held not to have been within the legislative intention. Such a construction is indispensable to protect interests that would be otherwise defenceless, and to afford security to creditors, distributees and heirs. In no ordinary case would it be possible for a personal representative to set out on oath in specific detail the nature and incidents of a transaction to which his decedent had been a party and to which he was a stranger. A dead man’s estate would be in utter peril, if a creditor could convert his demand into a judgment upon no proof other than the statement of his claim filed at the commencement of his suit. And yet, a rule that would require an affidavit from an executor or administrator would work just that result. On every ground the rule for judgment ought to have been discharged. Judgment reversed, and procedendo awarded.


author: Mr. Justice Mercur

text:
    Davis’s Appeal. Hanbest’s Estate.
    1. Where a testator charged certain annuities upon his estate and by the terms'of his will blended his realty and personalty together, it is to be concluded that it was his intention to charge the real estate with the annuities, upon a deficiency of the personal estate.
    2. Where, therefore, certain devises of a testator to charitable uses were made void by statute and by the language of his will, his real and personal estate were mingled together and made a residuary fund; when the heirs at law took the property thus designed for charitable uses, they took it with this fixed character stamped upon it, and annuities charged upon the testator’s estate were charged upon the real estate thus cast unon the heirs.

      3. In a proceeding under tlie Act of 23d of February 1853 (Pamph. L. 98, Purd. Dig. 451), an appeal lies from a decree of the Orphans’ Court refusing to entertain a petition of an annuitant where there was no inquiry into the merits of her application.
    4. McOredy’s Appeal, 14 P. F. Smith 428, distinguished.
    January 26th 1877.
    Before Acnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1875, No. 186.
    This was the appeal of Anna Maria Davis from the decree of the. court dismissing her petition, praying that certain annuities charged by T. P. Hanbest, deceased, in his will, upon his estate, might be secured by setting apart a portion of the real estate of testator, the personal estate being insufficient to support said annuities.
    Thomas Passmore Hanbest died on the 7th of August 1873, leaving a will dated the 30th of July 1873, and a codicil dated the 5th day of August 1873. By this will he directed his brother, Philip, to collect the rents of his real estate and the interest of mortgages, and pay the same over to his executor, devising to him, also, certain real estate, and giving him $100 per month during his life, to be paid by his executor. To his sister Emily, he gave $100 per month during life. To his sister Julia, $100 per month, and devised to her, also, certain real estate. After several other legacies and annuities to various relatives, the will contains the following clauses:—
    “ 20. I give and devise to the Swedes Church of Kingsessing, Philadelphia, known and called, I believe, by the name of St. James’ Church, situate on the Darby road at or near the corner of Sixty-ninth street, all the rent and income of my store at Darby road and Ann street, now in the tenure of one-Johnson, and kept by him as a store for the benefit of all widows over forty years of age who may live within the old hounds of Kingsessing, and I give the same to the trustees and the minister of said church for ever, and payable one year after my death.
    “ 21. I give to Mrs. Anna Maria Davis, widow, the sum of throe thousand dollai-s per annum, payable quarterly by my executor, during her natural life, which sum is in full of all claims and demands of every kind which she may have for my board, and also for all her kind services rendered to me during my present illness or in any other way whatever, and which quarter will begin with my death.
    “ 25. After the payment of the above legacies, and the expiration of all the life-estates where, I have given annuities, I do will, and direct my executor to erect upon my estate, known as the Old Homestead, and situate on the easterly side of the Darby road, in Kingsessing, where my father lived and where I ivas born, a suitable building, not to cost over fifty thousand dollars, for the benefit of old men and old women who are infirm or crippled, and who are not able to earn a living, and for this purpose I do give and apply all the rest and residue of my estate, both real and personal and the increase of the same, and all the rents, interest, issues and profits thereof, for the support and maintenance of the same. And for the1 purpose of carrying out this my intention, I do authorize my executor to get such laws passed by the legislature as may be necessary to carry the same into full eifect, or to apply to the proper court to carry the same into effect, as may be deemed best for ever.”
    Isaac Norris, Esq., and Philip Hanbest, the brother of testator, were made the executors of his will. The proceedings in the court below commenced by a petition which, on behalf of Anna Maria Davis, after a reference to the foregoing portions of the will, set forth in substance :—
    “That by will the testator gives to your petitioner, Anna Maria Davis, the sum of three thousand dollars per annum, payable quarterly during her natural life; that the annuities of said will are charged upon all his residuary estate, both real and personal; that the personal estate of said testator is not sufficient to support said annuities; that said annuities might be amply secured by setting apart a portion of said real estate, and that the remaining residuary real estate, after setting apart such portion as may be ample security for the payment of said annuities, may be and remain discharged and exonerated from the lien and charge of the same.”
    She therefore prayed the court to order a citation to issue to show cause why such relief might not be granted. The executors answered, that in their opinion it was necessary that the whole of the real and personal estate of the testator should remain in their hands and under their control for the purpose of forming a capital or principal to meet said annuities from time to time as they became due and payable. They also suggested the appointment of an auditor to audit the accounts of the executors, to hear all the parties interested in the estate who could make a full report on which the court would be able to make a proper decree-.
    Sarah Hanbest, guardian ad litem of three minor children, heirs at law, and James Jameson in his own behalf as assignee of Thomas P. Hanbest, one of the heirs of decedent, made answer that the real estate of the said decedent was not charged with the payment of the legacies or annuities mentioned in the will, because by the terms of the will they are not so charged.
    The court dismissed the petition and in an opinion said :—
    “ The dispositions of this will which create trusts for charitable uses, as set out in the twentieth and twenty-fifth clauses, are contrary to the eleventh section of the Act of April 26th 1855, Purd. Dig., p. 208, pi. 24, because of the testator’s decease within one calendar month after executing his will, and are therefore void. The property thus attempted to be disposed of is made by the statute to go to the next of kin, or heirs, according to law : Price v. Maxwell, 28 Penn. St. 23. .
    Since the disposition attempted by the testator in the twenty-fifth clause ofhis will is void, it must follow that there is not any gift or devise of his residuary estate. The statute annuls every testamentary intention which contravenes it. There is therefore no residuary estate of the testator, for the testamentary disposition which seeks to create it is a nullity. The heirs and next of kin come into possession of the property, which the • testator expected to devise or bequeath, not as successors in title under the will, but by force of the statute in spite of and against it. They take not by or through the testator’s bounty, but by the written law. The testator’s intentions are annulled, and no inference as to his valid testamentary disposition in other parts of the will can be gathered from them. In this view, all that was'predicated in argument respecting his intention to charge his legacies and annuities upon his residuary realty, as deducible from a gift and application of his real and personal residuary estate blended, loses its force; the statute has swept away the foundation on which the rules of the law construing the testator’s intention thus to charge, must be based, eessante rations, cessat ipsa lex.”

    From this decree this appeal was taken.

      A. V. Parsons, for appellant.
    — The dismissal of the petition when all the parties were not in court, was erroneous. The court here declared a bequest for charitable uses void, without giving those who might have claimed it a hearing. Such a decree cannot be made in the absence of the parties. But even if these devises for religious or charitable uses were void, the other provisions of the will should have been carried into effect: Miller v. Porter, 3 P. F. Smith 292; Evans’s Appeal, 13 Id. 186.
    Now, if the bequests to charities are declared void, which has yet not been done, but by the statute, the residue of the property would, by operation of law, descend to the heirs of the testator; on what terms or conditions do they take this residue of the estate ? First, subject to the payment of the debts of the testator; second, under and subject to the payment of the legacies and annuities : Lanoy v. Duke of Athol, 2 Atkyns 444; Galton v. Hancock, Id. 430; Haslewood v. Pope, 3 Peere Wms. 323; Rider v. Wager, 2 Id. 329; Oneal v. Mead, 1 Id. 693.
    All of the estate, both real and personal, was made chargeable with these legacies and annuities, and whether the lapsed devises be real or personal estate, the portion to be paid the annuitants, as designated by the testator’s will, must be satisfied: Wigg v. Wigg, 1 Atkyns 382; Oke v. Heath, 1 Ves. Sr. 135; Case of the Will of Eleanor Newell, 1 P. A. Browne 311.
    It is plain, both by the words of the will and the situation of the parties, that the land was to be a fund for the payment of legacies, if the personal estate was insufficient: Downer v. Downer, 9 Watts 60; Tower’s Appropriation, 9 W. & S. 103. When a testator by his will blends his real and personal estate, he thereby charges his land with the payment of legacies: McLanahan v. Wyant, Adm’r, 1 Penna. R. 96; Witman v. Norton, 6 Binn. 395.

      George Tucker Bispham, for Jameson.
    — First. The decision of the court below is sustainable on the ground taken by the court, viz., that the'residuary devise for charity having failed, there could be no argument in favor of an intention to charge legacies upon real estate based upon that devise. The charge of legacies being a matter of intention, and that intention being gathered from the residuary clause, if the residuary clause failed, there would be nothing upon which to predicate the intention.
    Second. The rule eontended for by the appellant is, that where there is a blending of realty and personalty in a residuary gift a charge of legacies on real estate is implied. This rule is admitted, but it is subject to the qualification that in order to create a charge there must have been no prior specific devise of realty. If there is such a prior specific devise, then the rule is the other way and the charge of legacies on real estate does not arise: Gallagher’s Appeal, 12 Wright 121.

      H. McIntyre, for Sarah Hanbest.
    — No appeal could be taken in this case: McCredy’s Appeal, 14 P. F. Smith 428.

      F. C. Brewster, for Isaac Norris, executor,
    contended that the decree below should be reversed because,
    I. The annuities were charged upon the real estate by the blending of realty and personalty: McCredy’s Appeal, 11 Wright 442; Gallagher's Appeal, 12 Id. 121; Okeson’s Appeal, 9 P. F. Smith 101; Van Dyke’s Appeal, 10 Id. 481; Brisben’s Appeal, 20 Id. 405.
    2. That the testator’s death within the month did not defeat the annuities to private persons.
    3. That McCredy’s case, 14 P. F. Smith 428, did not apply because that was an attempt to relieve land from the annuity, not to charge it.
   Mr. Justice Mercur

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

By the last will and testament of Thomas Passmore Hanbest he gave to the appellant the sum of three thousand dollars- per annum, payable quarterly by his executor during her natural life. He devised certain real estate specifically to his brother Philip, and certain other real estate specifically to his sister Julia. He also gave numerous legacies and annuities to various other persons.

Clause 27| of his will declares, “all my real estate is to be kept in good order and condition under the direction and care of my brother Philip, and repairs to be made to the same, from time to time, by him, as may be necessary.” In clause two it is declared that Philip “ is also to have the collection of all the rents of my real estate and interest of mortgages, and pay the same over to my executor.” By clause 20, he devised to St. James’ Church all the rent and income of a certain store, for ever. By clause 25 he directs his executor, “ after the payment of the above legacies and the expiration of all the life estates where I have given annuities,” to erect on a specified part of his estate a suitable building, not to cost over fifty thousand dollars, for the benefit of aged, infirm and crippled persons, and “for this purpose I do give and apply all the rest and residue of my estate, both real and personal, and the increase of the same, and all the rents, issues and profits thereof, for the support and maintenance of the same.”

Thus, by the terms of his will, the testator blended his real and personal estate. It is a well-settled rule of law that when they are so blended by the testator, the land is charged with the payment of legacies. The reason assigned is, that the whole may take effect, and all the legacies be paid, which is justly supposed to be the intention of the testator, when both funds are put into one: Hassanclever v. Tucker, 2 Binn. 525; Witman v. Norton, 6 Id. 395; McLanahan et al. v. Wyant, Adm’r, 1 Penna. R. 96; Clery’s Appeal, 11 Casey 54; McCredy’s Appeal, 11 Wright 442; Gallagher’s Appeal, 12 Id. 121; Brisben’s Appeal, 20 P. F. Smith 405.

In determining whether a legacy is chargeable on land in case of a deficiency of personal assets, the whole will must be taken together: English v. Harvey, 2 Rawle 305. But it may be so charged by implication. No form of words is necessary to produce this effect. Where the intent is manifest it must be carried into execution: Ripple v. Ripple, 1 Rawle 386; Wright’s Appeal, 2 Jones 258; Clery’s Appeal, supra; Gallagher’s Appeal, supra; Brisben’s Appeal, supra. The case of McCredy’s Appeal, supra, shows how controlling the general implication may be. There the testator devised lands. situate in two counties. He also gave to. each of his two daughters a specific annuity, and expressly charged! upon his lands in one county, a sum sufficient to produce said annuities; yet the court held the general intendment of the will was sufficient to charge it upon the lands in both counties.

No other conclusion can be drawn from the present will than that the testator intended the legacies and annuities should be paid, at, all events. It was not until after their payment that he directed, the-building to be erected, and gave the residue of his real and personal! estate and the increase thereof for its support and maintenance.

It is contended that this view of the case is incorrect by reason! of the testator having died within one calendar month aften- Bis execution of the will; that by the 25th clause before cited, as •well as by the 20th, he created trusts for charitable uses, which are made void by the 11th section of the Act of April 26th 1855, Purd. Dig. 208, pi. 23. It does not appear that those who might claim under these charitable bequests have ever had a hearing in court, so that they might controvert the facts alleged against them. But conceding them to be void, under the statute, without a decree to that effect, what is the result ? The property thus sought to be devised, being given to no other, goes to the heirs or next of kin, according to law. The specific legacies, annuities and devises are not made invalid by reason of the charitable uses having failed to take effect: Evans’s Appeal, 13 P. F. Smith 183.

It is a well-settled rule in equity that land or money directed to be converted by a last will and testament, is impressed with the character of the particular species of property into which it is to be transmuted. The will and death of the testator work the change, in equity. It requires no act of the executor or trustee to work the conversion. Hence it has been held that a judgment recovered against one of several legatees, among whom the fund, when made from land, was to be distributed, did not bind his interest therein, for he was seised of no estate in the land which could be made the subject of a lien: Allison, Executor, v. Wilson’s Executors, 13 S. & R. 333; Morrow v. Brenizer, 2 Rawle 185; Willing v. Peters, 7 Barr 287.

Evans’s Appeal, supra, shows that this rule of conversion does not depend on whether full effect can be given to the intended charity of the testator. There the testator had directed his real estate to be sold and the proceeds to be applied to a charitable use, but died within a month after executing the will. It was held, that although the gift was void, yet the direction to sell was a conversion. So, in the present ease, it is the language of the will which mingles the realty and personalty together and makes them a residuary fund. While the heirs and next of kin now take the property designed for charitable uses, yet they take it with its fixed character stamped upon it. The heir at law, on whom a part of the estate is allowed to descend, would seem to stand precisely in the same condition as if he had taken it as residuary devisee and legatee: McGlaughlin’s Executor v. McGlaughlin, 12 Harris 20. Both take subject to general legacies. It follows, therefore, that the annuity of the appellant is charged on the real estate cast on the heirs of the testator, and the learned judged erred in holding otherwise.

One other important question remains to be considered. That is, whether an appeal lies from the decision of the court refusing to entertain the petition. The denial is certainly a definitive decree of the Orphans’ Court. It is claimed that no appeal lies under the authority of McCredy’s Appeal, 14 P. F. Smith 428. It is there said, that no appeal is given by the first section of the Act of 23d February 1853, unless the court has made a decree discharging and exonerating some of the real estate from the lien and charge of the annuity and legacy. We think that case is clearly distinguishable from the present. There the application was made by the executors to take from the annuitants some of their security against their will. Here the annuitants voluntarily offer to release their security on a portion of the real estate. There it was said what is granted to the residuary devisee is a pure matter of grace or favor. The controlling thought expressed is, that the legal rights of the annuitant shall not be infringed upon by diminishing his security. Here the annuitant waives her rights, and offers to relinquish a part of her security. That case, however, appears to be, in part, put on the ground that the legislature designed to leave it to the discretion of the court. The questions of fact had been referred to an auditor to inquire into the circumstances, and to report on the amount and condition of the estate, and upon the expediency and propriety of exempting any part or portion of the residuary real estate, from the lien and charge of the annuity. The auditor had reported. All the facts were before the court. The merits of the case and the propriety of making the order asked for, were duly considered by the court. The application was refused. The presumption is, that it was refused on the merits. There were then strong reasons why this court should not review the discretion exercised by the court below.

The present case is entirely different. < Here there was no ascertainment of the circumstances, no inquiry into the merits of the case, no consideration as to the expediency or propriety of making the order. The petition was dismissed solely on the ground that the annuity was not charged on the residuary real estate, which we have shown to be an error in law. In sending the case back for further action ive do not mean to interfere with the discretion of the court to refuse the application on a hearing of the merits, but we hold that the annuity is a lien on the residuary real estate, and the appellant is entitled to a hearing on the merits of her application.

Decree reversed and a procedendo awarded.


author: Mr. Justice Gordon

text:
    Miller versus Baschore.
    1. To revive a claim barred by the Statute of Limitations, there must be a clear and definite acknowledgment of the debt, a specification of the amount duo, or a reference to something by which such amount can be definitely and certainly ascertained and an unequivocal promise to pay.
    2. The maker of a note that was barred by the Statute of Limitations wrote to the holder, “ I have received a letter from you some time ago, asking of me what I intended doing with balance of note I owe you,” and after speaking of an arrangement to pay another creditor with whom he had compromised, continued, “ and after he is paid, I will pay you all I owo you, and if I can do anything for you before that time, I will do so. You need not trouble yourself about me that I will not pay you, for I expect to pay all I owe.” Held, that these acknowledgments and promises were neither certain nor perspicuous enough to take the case out of the operation of the statute.
    January 26th 1877.
    Before Agnew, O, J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Common Pleas, No. 4, of Philadelphia county: Of July Term 1875, No. 125.
    Assumpsit by Catharine Baschore against John W. Miller on a promissory note for $100, dated the 28th of December 1859, drawn by the defendant to the order of plaintiff and payable one day after date.
    The defendant pleaded the general issue and the Statute of Limitations.
    At the trial, under objection, the plaintiff put in evidence the note with several endorsements thereon, on account of interest, and one of a payment of a small sum in merchandise. These endorsements were all made previous to 1864. She then offered the following letter which was also admitted under objection:—
    “ Philadelphia, March 23d 1869.
    “ Mrs. Catharine Baschore.
    I have received a letter from you sometime ago, asking of me to let you know what I intended doing with balance of a note I owe you. It is hardly necessary to tell you that I had a great deal to pay when I failed, for you know that I have paid off many of my old debts, and calculate to pay all I owe. Just now I cannot pay you anything, for one reason, I compromised with John Geo. Seltzer to pay him in instalments of which I have paid one, and another is coming due on the first of April, which I must somehow arrange, and then I have to pay him one more note which comes due April 1st 1870, and after he is paid I will pay you all I owe you, and if I can do anything for you before that time I will do so, you need not trouble yourself about me that I will not pay you, for I expect to pay all I owe. If you think I am not telling you the truth, you can ask J. G. Seltzer himself.
    I remain your friend,
    John W. Miller.”

      Miller, on cross-examination, testified that he had paid Seltzer.
    The defendant then moved for a nonsuit, which the court declined to grant.
    He was then called, in his own'.behalf, and testified :—
    “ The plaintiff, at the time I gave her the note, in 1859, owed me upwards of fifty dollars for goods sold and delivered, .with interest from June 19th 1856. She owed me this claim, with interest at the time the letter of 1869 nas written, and still owes me the book account with interest. She has never paid or settled it.”
    The plaintiff, in reply, denied that when the note was given in 1859, there was a settlement between defendant and herself and alleged that the $100. was the balance due her.
    The court, Briggs, J., charged the jury as, follows:—
    “ The letter of 1869 declares that the defendant will pay what he owes the plaintiff, after he shall have paid Seltzer, and the defendant testifies that he has paid Seltzer; therefore, his promise, then conditional, is noAV absolute. The question now is, Avhat does he OAve the plaintiff? Both the note in suit, and the defendant’s claim for goods sold, were, at the time the letter was Avritten, barred by the statute, and Ave cannot consider the promise without inquiring into the state of their accounts at that time. You should alloAv the defendant for the sum the plaintiff owed him at that time, and give her a verdict for the balance, and if you do not find a balance in plaintiff’s favor, then give a verdict for .defendant.”
    The verdict was for the plaintiff for $125.35.
    The defendant took this writ, assigning for error the admission of the foregoing letter, as sufficient to revive the note; the admission of the note, which was barred by the statute; and the charge of the coui’t above.

      William D. Wetherill, for plaintiff in error.
    — The promise to take a case out off the Statute of Limitations must be clear, unequivocal, and express, and so distinct in its extent and form as to preclude hesitation and doubt: Morgan v. Walton, 4 Barr 321; Beck v. Beck, 1 Casey 124; Harbold’s Ex’rs v. Kuntz, 4 Harris 210; Shaffer v. Shaffer, 5 Wright 51; Weaver v. Weaver, 4 P. F. Smith 152; Boss v. Long, 33 Leg. Int. 306.
    The promise which is sufficient to take a case out of the. statute, must be a promise to pay on demand; an immediate, unqualified promise to pay, Avithout restrictions or conditions: Kensington Bank v. Patton, 2 Harris 479; Tanner v. Smart, 6 B. & C. 603; Hart v. Prendergast, 14 Mees. & Wels. 741; Boss v. Long, supra.

    The instrument sued on must be clearly and distinctly identified, and there must be a distinct recognition of the amount due; Suter v. Sheeler, 10 Harris 308; Shitler v. Bremer, 11 Id. 413; Burr v. Burr, 2 Casey 284; Shaffer v. Shaffer, supra; Wolfensberger v. Young, 11 Wright 516; Johns v. Lantz, 13 P. F. Smith 324.

      But even if this letter contains an acknowledgment of the note in suit, does it exhibit an intent to pay the whole note ? This suit is for the entire debt, the w7hole of the note. Construing the letter in the most favorable light for the plaintiff, it wras clearly not the intention of Miller when he wrote it to pay the whole debt, but a balance only. This case is stronger than Senseman v. Hershman, 1 Norris 83, decided upon this very ground.

      Greorge Tucker Bispham, for defendant in error,
    did not print a paper-book, but made an oral argument. The letter satisfies the rule of law as to certainty, for the language indicates that the debt in question was in the mind of the writer, and that he intended to recognise the same. It is not necessary that the promise should be for immediate payment. Postponing the time does not affect the promise. The time is certainly fixed by the time fixed for the payment of the Seltzer notes. The identification of the debt is fixed by the reference thereto in the letter: Whitcomb v. Whiting, 1 Smith Lead. Cas. 958, last ed.
    Not shown that there was another debt, nor could have been. Senseman v. Hershman, 1 Norris 83, differs from this case. No recognition there of a certain balance or one that could be made certain. Here the balance can be ascertained by the endorsements. Both parties could know by deducting the credits thus given, and the amount due, therefore, was neither vague nor uncertain.
   Mr. Justice Gordon

delivered the opinion of the court, February 5th 1877.

The evidence was not sufficient to relieve the claim of the plaintiff below from the effect of the Statute of Limitations. In order to effect such a result there must be a clear and definite acknowledgment of the debt, a specification of the amount due or a reference to something by which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay. In the case under consideration the acknowledgment and undertaking of the defendant lack these essential characteristics. He writes: “I have received a letter from you some time ago asking of me what I intended doing with balance of a note I owe you.” In this there is nothing specific or definite, for it is not stated what note is referred to, neither is the amount of the balance indicated. The latter part of this letter is not less indefinite, for, after speaking of an arrangement to pay another creditor with whom he had compromised, he says: “And after he is paid I will pay you all I owe you, and if I can do anything for you before that time I will do so; you need not trouble yourself about me, that I will not pay you, for I expect to pay all I owe.” If, in Weaver v. Weaver, 4 P. F. Smith 152, the writing by the debtor under an account stated, “ I agree to settle with him for the above balance and any other just claim between us,” was not sufficient to take the claim, out of the operation of the statute, much less the promise above stated. In the case cited the claim and the amount were fixed beyond doubt or cavil; the fault occurred in the want of a promise to pay the sum thus fixed, for the undertaking was not to liquidate the account stated, but only to settle that and any other just claim his creditor might have against him; it was, therefore, at' best but a promise to pay what might appear to be due upon' an adjustment of their several accounts. Applying the above-stated doctrine to the case in hand and it is found to be utterly wanting in every element necessary to-rescue it from the grasp of the statute; the defendant promises to pay a balance of a note, but neither note nor balance is stated; he promises to pay what he owes, but whether that is much or little we are not informed; there is, in fact, neither the required certainty nor perspicuity in the evidence produced to break down the defence; hence the attempt has resulted in failure.

The judgment is reversed and a new venire ordered.


author: Pur Curiam.

text:
    Jamison et al. versus Collins. Same versus Same.
    1. In a writ of error under the reference law of April 22d 1874, Purd. Dig. 1939, the Supreme Court can hear and determine only questions of law arising upon bills of exception to the rulings of the judge relating to the evidence or the law of the ease. It will not go behind his findings of fact, except where in a common-law trial before a jury the assignments of error are such as can be heard and determined before this court.
    2. The superintendent of a corporation was given a draft, the proceeds of which were to be used for the benefit of the corporation. He went to a banking firm, one of the members of which was the treasurer of the corporation, and deposited with them the draft, the proceeds to be placed to his personal credit. The firm instead appropriated the proceeds to the payment of an indebtedness of the corporation to its treasurex-. Reid, that this was a misappx-opriation of the funds and that the firm was liable therefor. ,
    January 29th 1877.
    Before Ag-new, C. J., Siiarswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, Nos. 291, 292.
    These wei’e two actions of assumpsit, one brought by B. K. Jamison & Co. against Philip Collins, to recover overdrafts made by Collins on his bank account with plaintiffs; the other by Collins against Jamison & Co., to recover the proceeds of a draft which Collins alleged were misappropriated by Jamison & Co.
    Both cases were submitted to the court, and a trial by jury dispensed with under the provisions of the Act of April 22d 1874, Pamph. L. 109, Purd. Dig. 1939.

      The following were the findings of fact and the conclusions of law as reported by Mitchell, J., who tried both cases:—
    “ 1. In the spring and summer of 1871, the Central Improvement Company, a corporation under the laws of Pennsylvania, of which Philip Collins was superintendent, and B. K. Jamison, one of the firm of B. K. Jamison & Co., was treasurer, was engaged in building the Shenandoah Valley Railroad, in the state of Virginia.
    “In the prosecution of this work, Collins, as superintendent, disbursed large amounts of money, and for convenience and safety in knowing what funds he had to draw on, he kept the greater part of his funds in his own individual name, and drew upon them by his individual cheeks. He also, from time to time, drew drafts upon the treasurer of the company, but not nearly to the same extent.
    “ Prior to July 1871, drafts and acceptances of the Pennsylvania Railroad Company to the amount of $45,000 had been delivered by the officers of the Central Improvement Company to Collins as superintendent, and Collins had had them discounted, deposited the proceeds to his individual credit, and drawn his checks upon them with no reference to the treasurer or to any other officer of the Improvement Company, and in every way treated them as his own individual property until he presented his accounts as superintendent, charging himself with the proceeds of such drafts, and claiming credit for his payments.
    “ 2. In the latter part of July 1871, Collins was a creditor of the Central Improvement Company to a considerable amount, by reason of advances made by him, and then required more money to carry on the work in Virginia. He came to Philadelphia to procure funds, and a meeting took place at the office of the Pennsylvania Railroad Company, on August 1st 1871, at which were present Collins, Jamison, the treasurer of the Central Improvement Company, R. D. Barclay, the president of that company, J. M. Walker, a large stockholder, and Thomas A. Scott.
    “At this meeting the Pennsylvania Railroad Company, acting by Mr. Scott, agreed to advance $25,000 more to the Central Improvement Company, if payment was guaranteed. A guarantee was executed by T. A. Scott, J. M. Walker and Collins, and thereupon R. D. Barclay, president of the Central Improvement Company, drew two drafts upon Thomas A. Scott for $10,000 each, and one for $5000, all dated August 1st 1871, at four months, to the order of B. K. Jamison, treasurer. These drafts were accepted by Scott, endorsed by Jamison as treasurer, and delivered to Collins at the same meeting.
    “ 3. [I find as a fact, that it was the clear expectation, understanding and intent of all parties to this transaction, the officers of the Improvement Company, including Jamison, treasurer, one of the parties to this suit, Collins, and Scott, the acceptor, that the acceptances, and the money to be raised by their discount, should go into the hands of Collins, to be used by him as superintendent for the Improvement Company, in the same manner that the previous acceptances of the Pennsylvania Railroad Company, amounting to $45,000, had been delivered to and used by him ; that this was the intention at the time is not explicitly denied by any one and even if the vague and unsatisfactory depositions of Mr. Barclay and Mr. Scott are construed to express a contrary intent, they are not of the slightest weight against their own acts at the time, the clear and uniform bearing of all the circumstances of the transaction, and the positive and convincing testimony of Mr. Collins.]
    4. I find also as a fact, that in pursuance of this understanding and intention of all the parties at the said meeting, the acceptances were delivered to Mr. Collins, and became his absolute legal property, subject only to the obligation to account thereafter to the Central Improvement Company for the application of the proceeds.
    “ 5. Between the adjournment of the meeting above referred to and August 3d, Collins brought the acceptances to the banking house of B. K. Jamison & Co., where he kept a deposit account in his individnal name, and there delivered the acceptances to Mr. Jamison, with instructions to send them to the Allegheny National Bank, at. Pittsburgh, to be discounted for him, in pursuance of an arrangement he had previously made with that bank. On the same day Collins said to Jamison & Co. that he must have money on these acceptances, as he was going to Virginia. . Jamison & Co. agreed, and Collins thereupon drew his check upon his individual account for $5000, which was cashed by Jamison & Co. the same day. This check overdrew his account with Jamison & Co., as bankers, to the extent of about $2000, unless the acceptances were passed to his credit.
    “ These acceptances had not been stamped by the maker, and stamps were put oh them by Mr. Jamison, and the cost, $12.50, was charged by Jamison & Co. to Collins, 'upon his individual account, on August 3d 1871, and on the same day the acceptances were forwarded by Jamison & Co. to the Allegheny National Bank, in a letter dated August .3d 1871, and were returned by that bank to Jamison & Co., in a letter dated August 8th 1871, asking for the endorsement of Collins, upon which a check would be sent for the proceeds. Collins, who was at this time in Virginia, was informed by Jamison & Co. of the refusal of the bank to discount the acceptances without his endorsement, went to Harrisburg and saw Mr. Mackey, the vice-president of the bank, made an arrangement by which his written guarantee was agreed to be accepted as equivalent to his endorsement, returned to Philadelphia,'and gave the guarantee to Jamison & Co., with instructions to send it and the acceptances again to the bank at Pittsburgh, and when a letter should come from the bank to him to open it, sign his name to the paper, and place the proceeds to his credit. Accordingly, the acceptances were again forwarded by Jamison & Co., with the guarantee of Collins, to the Allegheny National Bank, in a letter dated August 16th 1871. That bank discounted the acceptances, and remitted a draft for the proceeds, $24,388.89, dated August 17th 1871, on the Union Banking Company of Philadelphia, payable to the order of Philip Collins. ' This draft, enclosed in a letter dated August 17th 1871, addressed to Philip Collins, care of B. K. Jamison &-Co., was received by Jamison & Co., who opened the letter, directed one of their clerks, J. H. Crossman, to endorse the name of Mr. Collins, and upon it, with that endorsement, received froni the Union Banking Company, the drawees, the sum of $24,388.89, on August 19th 1871.
    “ 6. Up to this time no question had been made by Jamison & Co. or B. K. Jamison, treasurer of the Central Improvement Company, of the title of Collins to the Scott acceptances or their proceeds, nor had any intimation been given to Collins that his instructions to place the proceeds to his individual credit would not be obeyed. He had drawn his check for $5000 on the proceeds of the discount by anticipation, and it had been paid by Jamison & Co.; he had conducted the negotiations with the Allegheny Bank in his own name; the bank, according to Mr. Mackey’s testimony, recognised no one else in the transaction, and it had remitted the proceeds of the discount by a cheek to his order, inclosed in a letter directed to him, in care of Jamison & Co. In all of his dealings with Jamison & Co., Collins had treated the acceptances as his property ; had directed the application of the proceeds on the ordinary basis of a depositor dealing with a bank as his agents, and Jamison & Co. had, by acquiescence in that basis of dealing — by honoring his check for what would have been otherwise an overdrawing of his account to the extent of $2000, by charging the costs of the stamps to his account, and by their letters to the Allegheny Bank in reference to the discount — recognised the title of Collins, and their position as his agents.
    “ 7. In May 1871, however, a note of the Central Improvement Company for $15,000, endorsed by J. M. Walker, had been delivered to Collins, by the Central Improvement Company, to raise funds for the operations in Virginia under his direction. This note was discounted by B. K. Jamison & Co., for Collins, and the proceeds, $14,602,50, passed to his credit in his account with them as bankers. The note, however, was discounted without the endorsement of Collins, and so far as appears without any right of recourse to him. He had, however, informed them that he did not intend to draw the proceeds for some time, as he was already in advance to the Improvement Company, and did not intend to get any deeper. In fact, however, Collins did draw out most of the proceeds for his operations in Virginia, within thirty days. There was no stipulation or agreement that he should not do so.
    “ This note fell due August 17th, and not being paid, was protested August 18th 1871.
    “ 8. The sum of $24,388.89, proceeds of the Scott acceptances, wras received by B. K. Jamison & Go., on August 19th 1871 (as already found at the close of paragraph 5), and ivas kept by them without any entry on their books (unless in a ‘ cash settlement book,’ referred to by their bookkeeper, Bur, on page 9 of the printed testimony, but not pz’oduced) until August 23d, when it was, by direction of Mr. Jamison, placed to his credit in his account as treasurer of the Central Improvement Company, and on the same day his account as treasurer was debited with the note of the Central Improvement Company for $16,000, with Walker’s endorsement, which had been discounted for Collins by the firm of B. K. Jami-son & Co. in May.
    “ Under date of August 22d 1871 (the day before the enti*y was actually made in the books of'Jamison & Co.) Mr. Jamison wrote to Collins as follows:—
    “ ‘ I charge the protested note, $15,000, Centi’al Improvement Company, up to their account, and credit them with proceeds of Scott acceptances loaned the company — $24,388.89. After deducting the amount of overdrafts paid on your order, will leave $6161.75, subject to your check; also, the protested note endorsed'J. M. Walker, subject to your order, in all $21,161.75.’
    “ This letter was the first notice received by Collins that the proceeds of the Scott acceptances had not been passed to his individual credit, as he had directed. He returned at once to Philadelphia on receipt of it, and repudiated the application of the proceeds, and demanded that they should be transferred to his credit, as directed by him. He testifies that Mz\ Jamison acknowledged that the appropriation was without right, and pz’omised to correct it on his books. This promise, however, is denied by Mr. Jamison, and I do not deem it necessary to decide upon the accuracy of their respective recollections in this íizatter. The rights of the parties were fixed by their acts, prior to this time, and it is sufficient to find that Collins never at any time acquiesced in the appropriation to the credit of Jamison as treasurer, nor did Jamison & Co. at any time, in fact, recede from their act by any change upon their books.

      “ 9. The cause of action in the first suit — Jamison v. Collins, No. 46 — is an overdraft by Collins upon his account with Jamison fr Co., as bankers, to the amount of $7037.08. The cause of action in the other case — Collins v. Jamison et al, No. 1229 — is a balance of $17,351.81, remaining to plaintiff’s cz’edit in defendants’hands as bankers.
    “ The decision of both cases turns on the act of Jamison & Co., in placing the proceeds of the Scott acceptances — $24,388.89—to the credit of B. K. Jamison, treasurer, instead of to the credit of Philip Collins. If Jamison & Co. had the right to appropriate the money, as they did, judgment must be entered for them in their suit for $8771.79, and if they had not such right, then judgment must be entered for Collins in his suit for $22,036.55.
    “ From the foregoing facts, I make the following conclusions:—
    “ I. [That the title to the three acceptances having passed on August 1st 1871, to Collins, by delivery to him as his property, to be appropriated in his discretion as superintendent to the purposes of the Central Improvement Company, no subsequent act of the treasurer of the company, B. K. Jamison, could affect Collins’s title without his consent. The law of appropriation of payments, argued with great force by the counsel for Jamison & Co., is not relevant to the facts established. They present an ordinary case of the transfer of title and possession of personal property, thereby conferring an ownership which cannot be changed without the act of the owner.]
    “ II. [That no subsequent act of Collins worked any change in his title to the acceptances or the proceeds of their discount. He dealt with Jamison & Co. as his agents merely, just as he might, if he had chosen, have gone to and dealt with any other bankers. He was not their debtor in any way Avhen the acceptances were delivered to them, except for the overdraft, by reason of his check for $5000, drawn on the same day, and that was drawn by him and paid by them, on the basis that the acceptances were his, and the money raised by their discount was virtually already to the credit of his individual account. Even if he was their debtor, it was upon this individual account, and his delivery of the acceptances to them, with positive instructions to place the proceeds to his credit, was an appropriation which it was his right to make, which he did make by that act, and which they conclusively assented to by receiving the acceptances without notice to him of any contrary claim or intention.
    “III. [That the whole conduct of Jamison & Co. shows that they did not themselves regard the acceptances as the property of the Improvement Company or of B. K. Jamison, treasurer, even as late as August 16th — the day before the note with Walker’s endorsement fell due — when they sent the acceptances the second time to the Allegheny National Bank, with the guarantee of Collins ;] nor did they think of claiming any such title until after that note (called the Walker note for distinction) had fallen due and been protested for several days. Even after the money was received from the discount, they kept it four days before they made up their minds to claim that it did not belong to Collins, and in announcing to Collins the appropriation of it to the payment of the Walker note, the difficulty of fitting an after-thought into the chain of circumstances led Mr. Jamison into the unconscious use of inaccurate language. In his letter of August 22d to Collins, he says:—
    “ £ After deducting the amount of overdrafts paid on your order, will leave $6161.75, subject to your check ; also the protested note endorsed J. M. Walker, subject to your order’

      “ Now, the proceeds of the acceptances had been passed to the credit of B. K. Jamison, treasurer, and the account of Collins, as it then stood, was overdrawn by $2000. The balance of $6161.75, referred to in the letter, was not subject to Collins’s check, though it might be to his draft on B. K. Jamison, treasurer. The inaccurate use of such familiar words by a banker shows that Mr. Jamison’s mind was even then haunted by a sense that all the proceeds of the discount belonged to Collins, and ought to be subject to his check.
    “IV. That no legal liability of Collins on the so-called Walker note has been shown, and, therefore, no right to pay it out of funds belonging to him. But even if such liability existed, the proper mode of proceeding by Jamison & Co., the holders, was to put the funds to the credit of Collins, for whom they had discounted it, and pay it in his name, so as to preserve his right against the endorser. By their act in paying as with the money of the makers— the Central Improvement Company — they have primá facie discharged Walker, the endorser, and thereby deprived Oollins, a subsequent holder, of his Security.
    “ V. [That, for the foregoing reasons, the act of Jamison & Co., in putting the proceeds of the discount of the Scott acceptances to the credit of B. K. Jamison, treasurer, was in violation of the orders of Collins to them, as his agents, in derogation of his title and his rights, and, as against him, wholly void.]
    “In the case of Jamison et al. v. Collins, therefore, there must be judgment for defendant; and in the case of Collins v. Jamison et al., judgment for plaintiff for $22,036.55.”
    Judgments were entered accordingly.
    To these findings and conclusions a number of. exceptions were filed by Jamison & Co., which the court dismissed. They then took this writ, and specially assigned for error the findings and conclusions embraced in brackets in the foregoing report of the learned judge below.

      George Bull and George W. Biddle, for plaintiffs in error.—
    The opinion of the court below, and the judgments founded thereon, rest entirely upon the finding of fact embraced in the first assignment of error. If this finding of fact is erroneous the premises from which the court deduce their conclusions are equally so. We contend that it is the duty of this court to review this finding, because there was no evidence whatever of any such fact. It has been held that where the judge in the court below has left a fact to the jury, of which there was no evidence, it will be ground for a reversal of the judgment in this court on writ of error: Werkheiser v. Werkheiser, 6 W. & S. 188; Wilson v. Davis, 5 Id. 521; Evans v. Mengel, 1 Barr 82.
    If there was evidence of the facts found by the court below, we would still contend that the findings are subject to review in this court.
    Mr. Collins, according to his own testimony, merely made himself personally responsible for debts of the company, and his only claim is that, by reason of this responsibility, he was entitled to direct the appropriation of the proceeds of these acceptances.
    Suppose his claim was correct, he had no legal right to take funds raised for the use of the company and appropriate them according to his own will, without passing them through the treasury. The treasurer of a private corporation is the legal custodian of the company’s funds, and responsible for their disbursement: Turnpike Co. v. Watson, 1 Rawle 330; Ins. Co. v. Wetmore, 17 Ohio 330.
    Jamison & Co. had an account with the Central Improvement Company, kept in the name of B. K. Jamison, treasurer. When the treasurer deposited the proceeds of the three acceptances to the credit of that account they had the right, as a banking firm, to defalk their claim on the $15,000 note of the company against this balance. The funds came lawfully to their hands, and the act of charging up the note was only the ordinary practice of every bank or banker in a similar case.
    It is urged that the plaintiffs in error did not make the appropriation in time. It appears that for three or four days after the funds were paid into the house of B. K. Jamison & Co., they did not pass fully into their accounts, but remained as a cash item in a memorandum account called the “ Cash Settlement Book.” It is undoubtedly the rule that where the creditor holds more than one claim against the debtor, the latter may direct to which claim the appropriation shall be made. But if the debtor makes no such direction the creditor may make the appropriation: Logan v. Mason, 6 W. & S. 9; Mayor of Alexandria v. Patten, 4 Cranch 317; Mills v. Fowkes, 5 Bing. N. C. 455; Williams v. Griffith, 5 M. & W. 300.
    In this case, however, there was but one demand to which the defalcation could apply, to wit: the note of $15,000, and it made no difference when the claim Avas set up, because a failure to make it at any particular time placed the debtor in no worse position.

      O. W. McKeehcm and A. K. McQlure, for defendant in error.—
    The findings of facts by the court below are conclusive as to the facts established by evidence unexcepted to on the trial.
    The Act of Assembly provides that “the decision of the court shall be in writing — stating separately and distinctly the facts found, the answers to any points submitted in writing by counsel, and the conclusions of law.”
    The judge is to report the facts found (a) as a ground for argument for a new trial; (b) to enable the Supreme Court -upon a writ of error to determine whether or not there be error in the conclusions of law as applied to the facts found, and (c) also, whether or not facts were found upon evidence to the admission of which counsel objected on the trial and excepted to the ruling of the court.
    It was never contemplated that the Supreme Court should re-try the case upon its merits.
    This rule seems to be adopted uniformly in other states where this mode of trial is used: Henderson v. Barbee, 6 Blackford 26; Brant v. Robertson, 16 Mo. 129; North v. Bloss, 30 N. Y. 374.
    The draft for the proceeds of the discount of the acceptances never came into the hands of B. K. Jamison, treasurer. Jamison & Co. received it as the bankers and agents of Collins, and as bankers the law. holds them to the highest measure of fidelity in caring for his interests, and in obeying his instructions
    The draft was deposited for a special purpose, and the bank could not refuse to apply it to the object for which it was deposited, on the ground that a debt was due them from the depositors: U. S. Bank v. Macalester, 9 Barr 475.
   The judgment of the Supreme Court was entered, February 5th 1877,

Pur Curiam.

— The governing question is the same in each of these cases, to wit, the right ownership of three drafts accepted by Thomas A. Scott, amounting to $25,000. The actions are between Collins and B. EY Jamison & Co. as bankers, and not between Collins and the Central Improvement Co., or B. K. Jamison, its treasurer. The right of the Improvement Co. to call Collins to ah account for the funds raised upon these drafts is therefore not in issue, but it is a question whether Jamison & Co., bankers, who came to the possession of the proceeds for and on account of Collins, can through the act of Jamison, treasurer, divert these proceeds into a different channel, in order to pay themselves a debt ($15,000) for which Collins was not responsible to them. For these reasons the fact that the Improvement Co. raised the funds for their own benefit is aside from the present inquiry. Now the judge below has found, and so far as we can determine justifiably, the fact that Collins, as the superintendent, was intrusted with and had the lawful possession of the drafts, as the means of obtaining money, which was to go into his own hands for expenditure. He gave them to Jamison & Co., as bankers, for his own account and credit. The money was in fact raised through his means, and the check which represented the proceeds, was payable to himself, and went into the hands of Jamison & Co., bankers, as his agents in the transaction of the negotiation. It is just here where the interposition of B. K. Jamison, treasurer, became improper. He had no right to divert tile proceeds of the check in the hands of Jamison & Co., bankers, the agents of Collins, from his account with them; and place them to his own credit as treasurer of the Improvement Co., and then debit that account with the $515,000 note, which was no debt of Collins. The effect of this transaction was to take the proceeds of the drafts on Scott out of the very hands to which the Improvement Co. had entrusted them, and thus to disable Collins as their superintendent and proper agent, from disbursing them for the benefit of the company. The confusion of names as to the capacity of Jamison makes it a little difficult to state the transaction clearly, but if these drafts had been left Avith Drexel & Co. as bankers, we should perceive at once that Jamison as treasurer could not have intervened to change the destination of the proceeds.

This is a Avrit of error under the reference laAV of 22d April 1874, Purdon 1939. The first section gives a Avrit of error or an appeal, as in other cases at laAV or in equity; that is to say, redendo singula singulis. The third section provides that every such case taken to the Supreme Court upon Avrit of error shall he heard and determined therein as writs of error are therein heard and determined; and the like provision as to cases of appeal in equity proceedings. It is clear, therefore, that in this A\rrit of error we can hear and determine only questions of law arising upion bills of exception to the rulings of the judge relating to the evidence or to the law of the case. We cannot go behind his findings of fact, except where, in a common-laAV trial before a jury, the assignment of error is such as can be heard and determined by us. The Avrit of error brings up no question as upon a motion for a new trial. The laAV provides for exceptions to the findings of fact Avithin thirty days, to be heard and determined by the judge, subject to reAdew by Avrit of error or appeal.

The judgment in each case is affirmed.