text:
    Eshleman et al. versus Harnish et al.

    1. Defendants agreed to furnish, to Bowers money not exceeding $10,000* to enable him to make horse-rakes ; Bowers to put them into market and, sell them as rapidly as possible, all the proceeds to be paid to defendants until the advances should be refunded. Held, that this gave defendants no, control over the rakes.
    2. Plaintiffs had furnished to Bowers castings before the agreementandi afterwards before they knew of it, and charged them to “Bowers after being shown the agreement they furnished castings as before and added “ & Go.” to the entries assuming that he and defendants were partners. Held, that these circumstances did not change the relation between Bowers and defendants.
    3. Afterwards plaintiffs a,nd Bower requested defendants to make a payment to plaintiffs for castings; they did so and requested plaintiffs to hurry with the rest of the castings for the remainder of the rakes — “ they would settle and pay the balance when they were delivered.” Held, not to take the cáse out oí the Statute of Frauds of April 26th 1855, sect. 1, and make defendants liable to plaintiffs for castings afterwards delivered to Bowers and charged to “ Bowers & Go.”
    4. To prove a change of relation so as to take a case out of the Statute of Frauds, it must be by clear and indubitable evidence.
    5. In the books of the plaintiffs, both before and after the agreement, some charges were to “Bowers” and some to “Bowers & Go.” Held, that under the circumstances, it was error to admit it as a book of original entries.
    6. The book was not evidence of performance of a special contract with the defendants, and could be received only as a memorandum, of items to refresh the memory of the witness.
    May 6th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 59, to May Term 1874.
    This was an action of assumpsit commenced September 4th 1871, by Benjamin W. Harnish and William C. Beecher, trading as Beecher & Harnish, against Benjamin Eshleman and Cyrus N. Herr.
    The plaintiffs’ claim arose under the following circumstances :—
    On the 27th of January 1868, the defendants and Amos K. Bowers entered into an agreement: “ That the said Eshleman and Herr agree to furnish to the said Bowers such sums of money as he may require from time to time, up to the 1st day of May, A. D. 1868, to enable him to complete the horse-rakes and other implements now in construction at his machine-shop in Beaver street, Lancaster city, Pa., not to exceed in the aggregate, the sum of ten thousand dollars.
    “ The said Bowers agreeing to finish the said rakes and other implements, in a good and substantial manner, as rapidly as possible, and to complete at least eight hundred rakes before the 1st day of May next, 1868, and to put them into market, and sell them as rapidly as possible; all the proceeds of the sales or exchanges, either cash or other securities or goods, to be paid over, assigned and delivered to the said Eshleman and .Herr, as fast as received, until the whole amount advanced, together with interest, on the various sums, has been fully refunded. The said Eshleman and .Herr to have free access to the books and papers relating to the- said business, at any and all times that they may reasonably desire to examine the same. The said Bowers also agreeing to .keep the buildings, machinery and stock fully insured, and to have the policies made payable in the event of loss, to the said Eshleman and Herr, and also agreeing to give them a judgment-bond in the sum of fifteen thousand dollars, to indemnify and secure to the said Eshleman and Herr, the repayment of any such sum or sums of money, as they may advance, or become responsible for, on account of him, the said Bowers or of his business. The said sum or sums to be fully paid on or before the 1st day of January, A. D. 1869. It is expressly agreed that the said Bowers shall be liable to make good unto the said Eshleman and Herr, all paper or other securities which may be turned over to them by the said Bowers, for the full face value thereof.” * * *
    At the same time Bowers gave to the defendants a judgment-bond in the penalty of $15,000 with condition, “that whereas the said Benjamin Eshleman and Cyrus N. Herr, at the special instance and request of the said Amos K. Bowers, have agreed to furnish the said Amos K. Bowers with money from time to time until May 1st 1868, in order to enable him to carry on the business of manufacturing agricultural implements, for the benefit and accommodation of him the said Amos K. Bowers. If, therefore, the said Amos K. Bowers, his heirs, executors, administrators and assigns, or any of them, shall and ,do well and truly repay or cause to be repaid unto the said Benjamin Eshleman and Cyrus N. Herr, all such sums of money as may from time to time be advanced to, or on account of the said Amos K. Bowers, by them, the said. Benjamin Eshleman and Cyrus N. Herr, on or before the 1st day of May, A. D. 1868, together with interest for the same, * * * the obligation to be void,” &c.
    Bowers had been engaged in the manufacture of agricultural implements in partnership with one Eckman up to about January 1st 1868, when he bought Eckman out and continued the business alone.
    The plaintiffs had been furnishing Bowers & Eckman with castings for horse-rakes and the other implements and continued to furnish them to Bowers; they claimed that the defendants became personally responsible to them for the payment of a balance due to them from Bowers.
    The ease was tried November 28th 1873, before Hayes, J.
    For the plaintiffs Bowers testified, that after the agreement with defendants had been made he went to the plaintiffs to order the castings, he showed plaintiffs the agreement. The plaintiffs made and delivered him the castings until about April, and Harnish then came to him for some money. Harnish and witness "went to see defendants and told them Harnish wanted pay for the castings; they talked the matter over; Harnish agreed to take a note for $800, if defendants would pay the interest on it, they gave him the note and told him “ to hurry on with the rest of the castings to finish the 800 rakes,” he furnished them, witness put them into the rakes; defendants paid the $800 note on account of these rakes; witness ordered the'goods to make the rakes and defendants paid for them when they had the money; he sold the rakes and gave them orders to pay; he never was agent for defendants; he went into the arrangement with defendants to raise money to finish the rakes; he had ordered some castings from plaintiffs before the agreement and afterwards ordered more and told plaintiffs about the agreement and where the proceeds were to come from.
    B. W. Harnish (plaintiff) testified :—
    “In 1867, the latter part of December, Mr. Bowers and I talked over about castings for the building of horse-rakes; he said that he was going to build some the coming season, and wanted some castings ; he said we should make some and bring same to the shop; we commenced making castings and delivered some the forepart of January 1868; after we had delivered the first or second lot, I met Mr. Bowers in Lancaster, he told me he had entered into an agreement with Eshleman & Herr, and showed me a copy of it — I read over this agreement — and upon the strength of that, we delivered these castings, hauled them down to the shop in Beaver street; a little before the 1st of April 1868, I met Bowers again here in town, and spoke about getting some money from the parties ; in consequence of what Mr. Bowers then said, I applied to Messrs. Eshleman & Herr, in company with Mr. Bowers, and asked them for some money on account of the castings which had been delivered; first, they asked me if I had a bill; I told them I had not; they then asked me if I had any idea what the bill would be for the castings delivered; this was the 9th of April, the time this note was given; I told them as near as I could tell, it was somewhere between eight hundred and one thousand dollars; one of them said that money was a little scarce with them at that time, and they asked me, if I would be willing to take a note for $800 for sixty days, if they would pay the discount on it; I told them that I would; they executed a note and gave it to me and I realized the money from the Lancaster Bank; before we parted there they said we should hurry up the balance of the castings for the remainder of the rakes; that they would settle for the balance after they were delivered — the balance of the castings; Mr. Herr, I think it was, said to me that they had given me now a pretty good part of this money and we would have to give them a little time for the rest of this money; that we would have to be easy on them for the balance. Then we talked over the matter and one thing or another, and before w'e separated, they made the emphatic request that we would be particular in hurrying up these castings to enable them to finish the rakes; and in pursuance of that, we did hurry and finish the castings and delivered them at the shop in Beaver- street.”
    Plaintiffs then produced their book of original entries ; the first entry was January 4th 1868, to Bowers & Eckman; the next January 24th to Bowers & Co.; next January 30th to Bowers alone ; the next February 7th to A. K. Bowers & Co.,; the next February 15th to A. K. Bowers; following which were a very large number of entries of different dates up to July 2d, all to A. K. Bowers & Co.
    Witness (plaintiff) then was asked: “Why are some to Bowers & Eckman, some to A. K. Bowers, and some to A. K. Bowers & Co. ?”
    He answered: “ In the year 1867 Bowers & Eckman carried on this business, and in December, when I met Mr. Bowers, I was under the impression that they were still in partnership, but Mr. Bowers informed me then, or in January following, that he had bought out Mr. Eckman, and was going to run the shop himself that year; at the time I delivered the second load I knew this and then commenced charging to Amos Bowers or Amos Bowers & C<5.; after two or three loads were delivered this other party got in — having seen this agreement or a copy of it, Mr. Herr & Mr. Eshleman with Mr. Bowers.
    Q. “ What did you mean by the Co. ?
    A. “ I meant Mr. Herr, Eshleman and Mr. Bowers.
    Q. “ When did you put this Co. ?
    A. “ After I knew Messrs. Herr & Eshleman were in combination with A. K. Bowers. I then added the ‘ Co.,’ to the entries of the charges for castings made and delivered for the horse-rakes; we were in the habit of charging castings under that name without specifying the particular use for which they were made.”
    The defendants objected to the admission of the book in evidence ; it was admitted and a bill of exceptions sealed.
    Witness proceeded: “ I furnished no castings to A. K. Bowers during that time; the balance was $563.24 due on the 6th of July 1868. The castings were all delivered at that time — at the date of that bill; at the time over here at Mr. Sprecher’s, they said I shall hurry and deliver all the castings, and when they were all delivered, they would settle and pay for the balance; I spoke sometime afterwards to Mr. Eshleman about this, and he said they could not pay, they had lost money enough by Bowers. We sent no castings to Mr. Bowers’s shop except for these rakes ; there was a man of the name of Frantz for whom Bowers was making or repairing a corn-sheller; he told me to send the castings to Bowers’s shop, which we did and charged them to Mr. Bowers; Mr. Frantz afterwards called and paid for the castings; I made the addition of ‘ Co.,’ for my own satisfaction, after I found that.”
    Bowers, recalled, testified: “ Beecher & Harnish delivered no other castings during the year 1868 than. those for these rakes, except for the corn-planter, as mentioned by Mr. Harnish.”
    The plaintiffs’ point and answer were :—

      “ The court is respectfully asked to charge that, if the jury find the promise by defendants to pay to plaintiffs for the castings in question, and also find that the main purpose and object of such promise was not to answer for another, but to subserve some purpose of their own, such promise is not within the Statute of Frauds and the defendants are bound to pay to the plaintiffs the price or value of the castings sold and delivered.”
    “ Answered in the affirmative, adding to ‘ some purpose of their own’ the words ‘as virtual owners of the property.”

    The defendants’ points were :—
    1. The alleged promise if ever made, is void, being within the Statute of Frauds and Perjuries, which forbids a recovery on a promise to pay the debt of another not in writing.
    2. Under the law and the evidence in the case, the verdict of the jury must be for the defendants.
    To these points the court answered:—
    “ 1. This depends upon what the promise was — a fact for the jury to decide; if it was to pay for the castings as furnished to and for the defendants — then it would not be within the statute; if it was that the defendants would pay for them as delivered to and for Amos K. Bowers, and as constituting him the debtor, then it would be within the statute referred to.
    “2. The facts are for the determination of the jury: the law of the case, as applicable to the facts to be found by the jury according to the evidence, has been explained to the jury. The finding of the jury should be according to the whole evidence.”
    The verdict was for the plaintiffs for $'742.91.
    The defendants took a writ of error and assigned for error the admission of plaintiffs’ offer of evidence and the answers to the points.

      F. H. Yundt (with whom were B. F. Fshleman and B. Gf. Fshleman), for plaintiffs in error,
    as to the evidence, cited Kline. v. Gundrum, 1 Jones 248; Churchman v. Smith, 6 Wharton 146. The plaintiff’s evidence was not sufficient to take the case out of the Statute of Frauds: Maule v. Bucknell, 14 Wright 52.

      A. M. Frantz, for defendants in error.
    The evidence was not of a promise to pay the debt of another but a promise on a new consideration : Arnold v. Stedman, 9 Wright 188; Weynard v. Crichfield, 3 Grant 113 ; Clymer v. DeYoung, 4 P. F. Smith 118; Hopkinson v. Davis, 5 Phila. Rep. 147; Addison on Contracts 38.
   Chief Justice Agnew

delivered the opinion of the court, May 18th 1874.

The castings for which the plaintiffs claim payment were furnished to A. K. Bowers and not to the defendants; Bowers was the manufacturer of the horse-rakes, and the plaintiffs began to furnish the castings for them before Bowers entered into the contract with the defendants to advance him the money. That contract gave the latter no control over the rakes. Bowers was to sell them and hand over the proceeds only in payment of their advances.

The plaintiffs knew nothing of this arrangement until Bowers exhibited the article to Harnish to show him that he would be provided with the means of payment. They charged the castings to A. K. Bowers, and it was only, as Harnish testifies, “ after he knew Messrs. Herr &'Eshleman were in combination with A. K. Bowers, he then added the & Co.’ to the entries of the charges made and delivered for the horse-rakes.” It is evident he thought the agreement constituted Bowers and Eshleman & Herr partners. Then it was not until the 9th of April, when he had already finished about two-thirds of the castings, he had the conversation with the defendants out of which this action grew. After some reluctance Eshleman & Herr advanced for Bowers $800 — in their note, and took his receipt, referring to their agreement. It was at this time the alleged promise was made. Up to this moment it is clear the relation of debtor and creditor between Bowers and the plaintiffs existed, and not between the defendants and them. How was the relation changed? The burden of proving a change of relation clearly and satisfactorily lay then on the plaintiffs; if not so proved, Bowers continued to be their debtor and the promise of the defendants was to pay his debt, and not being in writing, fell within the Statute of Frauds, 26th April 1855, sept. 1. This alternative was fairly presented to the jury in plain language, by the learned judge below. The only question, therefore, is, whether the evidence was sufficient to establish the change of relation, and make the defendants the principal debtors.

Bowers says, referring to the meeting to obtain the further advance of $800 : “ They (defendants) gave him the note and told him to hurry on with the rest of the castings, to finish the eight hundred rakes.” “ I heard them tell Harnish to hurry up the balance,” again, “ at that time about two-thirds of the castings were finished. I ordered the goods to make the rakes, and they paid for them when they had the money. I sold the rakes and gave them orders to pay.” Harnish testified to the same conversation as to the advance of $800 to Bowers. He says: “Before we parted there, they said we should hurry up the balance of the eastings for the remainder of the rakes; they would settle for the balance after they were delivered.” Again, “they said I should hurry and deliver all the castings, and when they were all delivered they would settle and pay for the balance.” Now in all this there was not a word expressing or even indicating a change of the relation between the plaintiffs and Bowers, or that the defendants took the debt upon themselves as them own. When all was delivered they would settle and pay for the balance. Delivered to whom"? Clearly to Bowers. They would settle and pay what? Clearly Bowers’s debt. As a promise to pay, it was entirely consistent with their own relation to Bowers to advance him money to finish the eight hundred rakes. Harnish had not refused to continue to furnish the castings to Bowers. Then the plaintiffs gave their own interpretation to the promise of the defendants. They not only continued to furnish the castings to Bowers, but they charged them to him and company. It is evident Harnish thought the liability of the defendants grew out of thir agreement with Bowers. It was this combination, as he terms it, which caused him to add the sign Co. to the charges in the book, and to continue the charges in that form.

But when a change of relation is alleged for the purpose of taking the case out of the Statute of Frauds, it lies upon the plaintiff to prove it by clear and indubitable evidence. The promise here must be attributed to the existing relations of the parties, in which Bowers was the purchaser of the castings from Harnish & Beecher, and Eshleman & Herr were mere loaning creditors of Bowers, under their written agreement and judgment against him. When the latter advanced the $800 they were reluctant and told Harnish they had advanced about all they were to under the agreement. Bowers Avas then becoming slow, and there is no probability that they would step out of their agreement and judgment to assume a new and worse relation; besides, there was a manifest reason for their expressions to Harnish to hurry up the castings. The eight hundred rakes were to be finished by the 1st of May, and this Avas the 9th of April. The season for making sales was rapidly approaching and the rakes should be in the market.

They were straining a point in raising the $800 for Harnish, and nothing was more natural when they were doing him a favor than to say to him now hurry up and we will settle the balance, without intending to change their position in the case. Their conduct was entirely consistent with existing relations, Awhile there was nothing to justify the conclusion that they became the principal debtors of the plaintiffs. There was no suflicient evidence therefore to take the case out of the statute requiring a writing to answer for the debt in default of another.

We think there was error also in admitting the book of the plaintiffs as a book of original entries, to prove the charges for the castings. It was not competent evidence of the performance of a special contract with Eshleman & Herr, and could have been received only as a memorandum of the items, to refresh the memory of the witnesses.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bittenger’s Appeal.
    1. A defendant in an attachment execution is not bound to make claim to the $300 exemption to the officer serving the attachment.
    2. The defendant must make claim for the exemption at the term to which the attachment execution is returnable.
    3. Landis v. Lyon, 21 P. P. Smith 473; Tost v. Heffner, 19 P. P. Smith 68, recognised.
    May 6th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Court of Common Pleas of Adams county: No. 13, to May Term 1874, by Mary L. Bittenger in the distribution of the proceeds of an attachment execution against her.
    On the 2d of August 1872, Chestnut, Townsend & Co. obtained ajudgment against Mary L. Bittenger for $209.12, and on the 5th of the same month issued an attachment execution against her, returnable August 19th, the first day of August Term.
    The sheriff returned that he had attached certain building association stock belonging to the defendant, and had served a copy of the writ on the defendant.
    No notice was given by her to the sheriff of her claim of $300, under the Exemption Act of April 9th 1849, Pamph. L. 523,1 Br. Purd. p. 636, pi. 20, &c. On the 20th of November 1872, the defendant entered on the record that she claimed the benefit of the act from the stock attached. On the 30th of December a rule was taken on the garnishees and interrogatories were filed. On the 3d of February 1873, the court directed the sheriff to sell the stock and pay the money into court; he accordingly sold the stock and paid into court $1155.41. The plaintiffs in the execution obtained a rule to show cause why the money in court should not be paid to them; this rule was made absolute May 28th 1873.
    Mary L. Bittenger appealed to the Supreme Court and assigned for error the order making the rule absolute.

      JR. JB. Woods (with whom was W. MeClean), for appellant.—
    The claim is in time if made before anything has been done to the detriment of the plaintiff for want of notice of the claim: Landis v. Lyon, 21 P. F. Smith 473; Yost v. Heffner, 19 Id. 68.

      JE. J. Riley (with whom was JD. Wills), for appellee.
   Judgment was entered in the Supreme Court, May 25th 1874.

Per Curiam.

Yost v. Heffner, 19 P. F. Smith 68, and Landis v. Lyon, 21 P. F. Smith 473, decide that under an attachment execution a defendant is not bound to make his claim of the $300 exemption to the officer serving the attachment. The reason given is that the officer has nothing to do with the collection of the debt and cannot have it appraised. It was held therefore that the defendant might make his claim at the term to which the attachment is returnable, and before the plaintiff has taken any step in the cause to his detriment. In Bancord v. Parker, 15 P. F. Smith 886, it is said also, that the purpose of an early claim is to prevent the accumulation of costs and counsel fees to the plaintiff. In Strouse’s Executor v. Becker, 8 Wright 206, the doctrine of diligence is strongly enforced by Woodward, J., as' to attachments as well as writs of fi. fa. No case is remembered in which the exemption in an attachment execution has been allowed to be claimed later than the term to which the writ is returnable. Here the writ was returnable on the 19th of August, and the claim was not made until the 20th of November following. It is important in a matter of practice such as this, that there should be a definite rule to guide both parties. It is certainly not a hard one to require the defendant to make his claim during the term when he should appear to answer the writ. The court below held that the claim was too late, and we cannot say this was an error. Order affirmed and appeal dismissed with costs to be paid by the appellant.


author: Mr. Justice Gordon

text:
    Tawney versus Long and Wife.
    1. A disposing mind and memory exist, if at the time of making a will the testator has a full and intelligent knowledge and.understanding of the act he is engaged in, of the property he possesses ; an intelligent perception of the disposition he desires, to make and the persons he wishes to be his beneficiaries. Per Fisher, P. J.
    2. Although the. general capacity of a testator may be unimpeached, if the will is the direct result of partial insanity or monomania without which the will would have been different, it cannot be sustained. Id.

    3. Importunate persuasion from which a delicate mind would shrink will not invalidate a devise.
    4. Undue influence to affect a will must be such as to subjugate the mind of the testator to the will of the person operating upon it.
    5. To establish undue influence there must be proof of fraud, threats or misrepresentations, undue flattery, or physical or moral coercion, so as to destroy the testator’s free agency operating as a present constraint at the making of the will.
    6. Neither general bad treatment nor general kindness is evidence of undue influence, unless shown to be part of a crafty arrangement to procure the will.
    7. Evidence in this case insufficient to show undue influence.
    May 7th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Adams county: Of May Term 1874, No. 64.

      This was an issue framed October 21st 1872, to try whether a certain paper writing was the will of John Bowman, deceased. In the issue, John E. Tawney, the executor of the will, was plaintiff and Henry Long and Hannah Long, his wife, and daughter of the decedent, were defendants.
    The questions in the issue were: whether the decedent was of sound mind, &c., when he executed the paper; whether its execution was pi’ocured by duress; whether it was procured by fraud and imposition on the decedent; whether it was procured by undue influence.
    The writing was dated October 28th 1871, at which time the decedent’s wife was living, and also an only child Hannah, the wife of Henry Long (the defendants in this ease); decedent’s wife died in the early part of 1872 at the age of eighty-five years, and he died in August 1872 at the age of eighty-seven years.
    By his will he bequeathed to Jacob Bowman, a nephew, $200, and the remainder of his estate, after payment of debts, he gave to John E. Tawney, whom he made executor of his will. • Tawney was a nephew of decedent’s wife, but otherwise in no way connected with him. His estate was wrorth from $1500 to $2000.
    The case was tried February 9th 1873, before Fisher, P. J.
    Plaintiff gave evidence by the subscribing witnesses of the execution of will; these witnesses testified also that he was then of sound mind, memory and understanding.
    The defendants gave evidence that about 1871, he and his wife had been living with the defendants and that the husband and he had difficulties about the payment for his boarding ; that he left Long’s house, boarded in several other places and finally became an inmate of the plaintiff; that his wife commenced a proceeding against him for her maintenance, in which the plaintiff became surety for his appearance at the Court of Quarter Sessions; on the 25th of October 1871, he was sentenced by the court to pay a monthly sum for the support of his wife, and on the 28th, the day the will was executed, Tawney entered into recognisance with him for the performance of the order of the court. About the same time suit was brought against him by Long for payment for hoarding him, in which he confessed judgment November 4th 1871.
    The defendants gave evidence that the decedent constantly asserted that his wife maintained improper relations with Long, his son-in-law; that Mrs. Long was not his child; that she and his wife were prostitutes and treated him with great unldndness; and gave evidence generally for the purpose of showing that he was monomaniac as regarded them ; they gave evidence also for the purpose of showing that his mind and memory had become impaired and that he was incompetent to make a will.
    For the purpose of establishing undue influence by Tawney the plaintiff, they gave evidence, that the decedent lived with the plaintiff ; that plaintiff was with him in all the litigation, attended to the business for him, accompanied him to the office of his counsel, &c.; that in a conversation about the management of his farm which was occupied then by Long, he said that Tawney was his agent, he had nothing to do with it, and that Tawney told him Long was too dumb to manage his own affairs.
    Long, the defendant, testified, under objection and exception:—
    “ About a year before he left me he came from Tawney’s, and he said it is nothing but ding dong all the time, by Tawney and his family, for me to make a will and leave all I have to them. He said Mr. Tawney went further than he had any business to do, and I told him so to his face; them papers are destroyed now; and I made the old man no answer to this. He added, he could not catch me, as long as I have my senses; I will never make a will; he cannot catch me.”
    Mrs. Long testified, under objection and exception: “In the year 1871, between spring and harvest, I can’t state particularly, but before the lawsuit, the old man said John E. Tawney was dingdongitig at him to make a will, and he said he was not going to make one as long as he had his senses. He said Tawney said he should will it to him, and that he had a family and we have none. At another time, but the same time he was there, he said Mrs. Tawney would take him around the neck, kiss him and say: Dear uncle, will me all you have; Hannah does not need it and did not work for it; Aunty worked for it. * * *
    “ About a month or so before the lawsuit he said Tawney had gone further than he had any business to do, and he told him so to his face, and Tawney owned to it, and that he had all now in his own hands and was going to keep it.”
    Michael Deener testified: “ Sometime .since Bowman died Tawney told me, in the shop, the old man wanted to make a will and he would like to give Jake some and hardly knew how to fix it. Then Tawney said he told him, pay your debts and afterwards you can do what you please.”
    The plaintiff gave evidence in rebuttal. He testified amongst other things, speaking of the proceedings against decedent for the maintenance of his wife, * * * “ We came back on the 20th. Mr. Wills prepared the papers; we came out to the office. Mr. Bowman paid from 1st of April to 1st of November the allowance, and the costs were not paid. After that Bowman called me back into the office and told me he had made up'his mind to make a will. He always thought he might give Jake something. He told me the way he was fixed he did not know what to do about it. He asked me wffiat he ought to do about it. I told him if he wanted to give Jake something he could make it so that his debts and funeral expenses should be paid first, and then he could give Jake whatever he had a mind to ; if nothing was left, there would be no harm done. He then went over into the prothonotary’s office. He told me if I had any business to attend to I should do it and meet him at Mr. Ramer’s hotel. I left then and met him at Ramer’s hotel about two hours after. Then we started home. I did not, at that time or at any other time, ask him to make a will in my favor. I never asked him to make a will at all. On the way home he handed me the will to take care of. He told me I should keep it, and he wanted me to take care of him, and he supposed if there was anything left I would get it. It was in an envelope, not sealed.”
    On cross-examination plaintiff testified: “ John Snyder and I had a conversation outside of the court-house about the trouble the old man had about his suit, and he seemed to be very much confused, and then I said in answer to Snyder, who said he was not fit to make a will, that he was not. Mr. Snyder broached the subject to me. Mr. Snyder and I met on the court-house steps, and he said to me that this thing, meaning the suit, seemed to trouble the old man uncommon. I replied that it did, and that his mind was much confused or out of fix. Mr. Snyder then said if the old man would want to make a will he did not believe it would stand. I told him I thought not. We spoke in reference to his condition that day. I did not say to Michael Deener, I told the old man to give Jake $200. The day before we came to town, I had a conversation with the old man about making the will. He told me in front of his room he had been thinking about making a will and fixing his things; he did not know whether he could make a will or not; that if he got like old Mr. Slagle his property might not reach to keep him. I told him if I was in his place I would take the good of what I had while I lived, and if there was anything left it was his own and he could do with it as he pleased.” * * *
    The foregoing is all the evidence which bears upon the question of undue influence by the plaintiff upon the decedent in connection with his will.
    The plaintiff’s sixth point and its answer were :—
    Point: “ The defendants have given no sufficient evidence to sustain their allegation that the will was obtained by duress, fraud, imposition or undue influence, and therefore the jury cannot find in favor of the defendants on these issues.”
    Answer: “ There has no evidence been given in this case to prove that the alleged will of the testator was made under duress or by fraud or imposition, but whether it was obtained by undue influence is a matter submitted by the court to the jury under the evidence given in this case, and the instructions of the court as to what in law will constitute undue influence sufficient to destroy the validity of a testamentary instrument.”
    The defendants’ fourth and sixth points and their answers were:—

      4th: “ In ordinary cases the undue influence necessary to invalidate a will is a constraint operating upon the testator at the time of the testamentary act which destroys free agency; hut less influence is required to control the mind of a testator and avoid a will, when the testator is enfeebled in mind, and very aged and infirm, than is required to control the will of one of mental vigor. And if the jury believe the testator was very aged and infirm, and enfeebled in mind, and that John E. Tawney, no relation by blood to testator, importuned him to make a will and leave all his property to him, and was his confidential agent and conducted his business for him, and encouraged him in his conduct towards his wife, and controlled the old man, his papers and effects, shortly before the alleged will was made, and brought him to the attorney where the will was written, and the principal part of the estate is devised to him, this raises a presumption of undue influence, and direct proof of it at the time of the execution of the will is not required to render the will invalid.”
    Answer: “ If the facts are as stated in the point, they are circumstances that are to be taken into consideration by the jury in considering the question of undue influence, but alone do not raise a conclusive presumption of undue influence.”
    6th: “ Where the party to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance and one requiring the fullest explanation.”
    Answer: “ This is not correct, but is to be considered as a circumstance amongst others tending to prove undue influence.”
    The court charged:—
    “ This case is an issue directed by the Register’s Court to the Court of Common Pleas of Adams county to try whether or not. certain instruments in writing, alleged to be the last will and testament of John Bowman, deceased, late of this county, is his will or not. It is contended that Mr. Bowman, from age and infirmity and weakness of mind, had not the capacity to make a will at the time he signed the instrument in question; that the instrument asked to be established was obtained by duress, fraud, imposition and undue influence, and that the testator was under an insane delusion as regards the relations existing between his wife and son-in-law, Henry Long, one of the defendants.
    “ Before we say anything about the facts of this case we will state to you our views of the law relating to testamentary capacity and what is required to constitute an ability to make a valid last will and testament. A disposing mind and memory is one in which the testator is proved to have had, at the time of executing the will, a full and intelligent knowledge and understanding of the act he is engaged in, a full knowledge of the property he possessed, and an intelligent perception and understanding of the disposition he desires to make of it, and the persons he wishes to he beneficiaries of his will and the recipients of his bounty. His mind and memory may be impaired by age or disease, but if enough intellect remains to fill the requirements above stated; advanced age, and infirmity of body, or impairment of the original mental force, will not incapacitate a man from making a valid disposition of his property by a testamentary instrument.

      “ By law every person has the right to dispose of his or her property as he or she thinks best, if they are of proper age and disposing mind and memory, and it is not so much the disposition that is made,as the fact that it was freely and voluntarily done, which constitutes the inquiry, in cases in which it is contended the will was procured by undue influence. There can be no invalidation of a will for undue influence, if the party is a free agent; if he has a will to act, and an ability to act in the matter as he desires and pleases, and does so act. The undue influence which will invalidate a will, is such as destroys the testator’s free agency, and prevents him from making any other disposition of his property, than that which the person who exercises the control over him chooses to dictate. The influence must be operative at the time the will is made and must be the effect of, and be produced by, undue influence. Solicitations to make a will, persuasions to make a will in a particular way, will not constitute undue influence, so long as the party making it remains a free agent and acts as he desires to act in the matter.
    “ A man may be of sound mind in regard to his dealings in general, but may be under an insane delusion, and whenever it appears that the will was the direct offspring of the partial insanity or monomania under which the testator was laboring at the very time the will was made, that it was the moving cause of the disposition, and that if it had not existed the will would have been different, it ought to be considered as no will, although the general capacity of the testator may be unimpeached.
    “ The wife and children of a man are the natural objects of his affections, and where they are disinherited by a husband and a father, when he comes to dispose of his estate, the reasons for doing so are a proper subject to enter into the consideration of a jury, in considering a case like the present, and any person will naturally inquire, why was this thing done ? Was the testator under an insane delusion, or has some powerful cause induced him thus to act ?
    “ If a monomaniacal delusion is unalterably entertained by a testator against a wife or -a daughter, who otherwise would have been his legatee or devisee and who would seem to be the natural objects of a man’s regard when he came to make a final disposition of his estate; and such delusion is shown to have been the operating motive which excluded' them; and if the supposed act or misconduct on the part of the wife or child, or both, had no existence in fact, and was a creature of the diseased imagination of the testator, and the will was engendered by this delusion and was its offspring, and made under its influence operating at the time and in the testamentary act; if, in short, the will was dictated by the delusion, it cannot be sustained as a last will and testament, because it is the production of a mind incapable of correct reasoning as to the object of his bounty and the character of his wife and children, and their relations towards himself. * * * ”
    The court then referred to the evidence and continued:—
    [“As regards the undue influence said to be exercised by Mr. John E. Tawney over the testator, you have heard the testimony on both sides of the question, as also the evidence of acts of misconduct and disrespect towards Mr. Bowman by his daughter and her husband, and on the whole of the evidence and the law as stated to you by the court, you will decide the question of undue influence —remembering that it must be operative at the time the will was made and was the cause of the will, and without the operation of the undue influence a different disposition of the testator’s property would have been made, and that the undue influence prevented
    “ The leading point in this case seems to me to be, whether the testator, at the time he made his will, was laboring under an insane delusion as regards the relations that existed between his wife and son-in-law, Henry Long, and Mr. Long’s conduct in relation to * * *
    After again referring to the evidence, the court said:—
    “ From the testimony of Mr. Deatrich, that of Moses Hartman, and that of the defendants, it is contended that the will was made under the insane delusion that the wife of the testator, a woman over eighty years of age, and who had lived with the testator for perhaps half a century, was the paramour of his son-in-law, Henry Long, one of the defendants. If the testator, at the time he made the will in question, without any foundation to rest it upon, labored under the idea that such a state of facts existed, it was a most monstrous assumption and could only be the creation of an unsound mind, and any testamentary disposition made under the influence of such a delusion is not worth the paper it is written upon, and ought not to be established as a last will and testament.
    “ The jury will then inquire, was the paper in question the offspring of such an insane delusion? And in determining the question, they will ascertain from the evidence whether or not such a delusion existed. * * *
    “If the jury find, from the evidence, that Mr. Bowman labored under the insane delusion that his wife, over eighty years of age, had illicit intercourse with her son-in-law, and Mr. Long allowed it, or did not discourage it, and under the influence of this insane delusion, it operated upon him at the moment he made the will, and it induced him to disinherit his only daughter and child, and give nothing to his wife, the will ought not to be sustained, and your verdict ought to be for the defendants.” * * *
    The verdict was for the defendants.
    The plaintiff took a writ of error. He assigned for error
    1, 2. Admitting of evidence of. declarations of the decedent to Mr. and Mrs. Long as to plaintiff’s importunity with decedent to make a will.
    3. The answer to plaintiff’s sixth point.
    4, 5. The answers to defendants’ fourth and sixth points.
    6. The part of the charge in brackets.

      E. Gr. McGreary, for plaintiff in error.
    The declarations of testator may be admissible to show his condition of mind, but not as evidence of the facts declared or stated, unless part of the res gestee: Greenleaf Ev., sect. 108; Jarman on Wills 77. The declarations proved do not tend to show undue influence operative at the date of the will. The testimony of Henry Long related to a time eighteen months before the will was made, and that of Hannah Long six months before: Eckert v. Flowry, 7 Wright 46 ; McMahon v. Ryan, 8 Harris 329; Jarman on Wills 37, 41; Thompson v. Kyner, 15 P. F. Smith 368; Moritz v. Brough, 16 S. & R. 403. They proved, at most, only persuasion or importunity, which, when established, do not constitute undue influence such as would avoid a will: Miller v. Miller, 3 S. & R. 267. The statements taken altogether show that the importunity had no. effect on testator, and no conclusion of undue influence could be legitimately drawn from them: Evans v. Mengel, 1 Barr 68; Haines v. Stouffer, 10 Id. 363.
    There is no other testimony in the ease tending to sustain the allegation, and it is distinctly disproved by the plaintiff. It is error to permit the jury to pass upon a matter of which there is no evidence, or to base a verdict on circumstances which do not justify their conclusion: Switland v. Holgate, 8 Watts 385; Sartwell v. Wilcox, 8 Harris 117 ; Kelly v. Kauffman, 6 Id. 351; Evans v. Mengel, 6 Watts 72; Urkett v. Coryell, 5 W. & S. 85.

      W. A. Duncan, for defendants in error.
    The decedent’s declarations were admissible as circumstances tending to show undue influence: Rambler v. Tryon, 7 S. & R. 90; and although the acts had occurred a length of time previously to the execution of the will: Reeme v. Parthemere, 8 Barr 460; McTaggart v. Thompson, 2 Harris 153; Waterman v. Whitney, 5 N. Y. 165; 1 Redfield on Wills 115, 504, 509; Titlow v. Titlow, 4 P. F. Smith 221. As to the answers to the points he cited Boyd v. Boyd, 16 P. F. Smith 294. As to the sixth error: Eckert v.
      Flowry, 7 Wright 46 ; Thompson v. Kyner, 15 P. F. Smith 368; 1 Jarman on Wills; 1 Redfield on Wills 481; Zimmerman v. Zimmerman, 11 Harris 378; Dean v. Negley, 5 Wright 312.
   Mr. Justice Gordon

delivered the opinion of the court, October 12th 1874.

It is quite probable that in October 1871, the mind of John Bowman was so unsound as to be incapable of properly disposing of his estate by will. At all events there was evidence thereof sufficient to submit to a jury. On this branch of the case the ruling of the court was strictly correct. Not so, however, on that which relates to the question of undue influence, as an operative cause affecting the old man in the disposition of his property.

The evidence offered for this purpose was wholly insuflicient, and should have been rejected.

In treating of this branch of the case, we must treat of it as a distinct issue, for if it be found that the testator was of unsound mind, then the question is determined against the will, and we proceed no further ; but if on the other hand this question be determined in favor of the testator’s testamentary capacity, then, and then only,do we consider the proposition involving the subject of undue influence.

However, then, the fact may be, and that fact is hereafter to be determined by a jury, we must, for the present purpose, treat the case as though the testator’s sanity were proved. What then is there in the evidence to show that John E. Tawney improperly influenced John Bowman in the disposition of his property ? That he treated the old man, who by marriage was his uncle, with kindness ; that he permitted him to remain at his house; that he bailed him and assisted him when sued by his wife and son-in-law, indicates but ordinary acts of friendship, towards a frail old man, rendered necessary from the very circumstances thrown around him by the defendants themselves, but in nothing does it exhibit that corrupt and unlawful influence which amounts to constraint, and which substitutes the will of another for that of the testator. So we have no evidence, except that of Tawney himself, that Bowman ever spoke to him, or he to Bowman, about a will. We give in extenso what he says upon that subject. “The day before we come to town, I had a conversation with the old man about making the will. He told me in front of his room he had been thinking about making his will and fixing his things. He did not know whether he could make a will or not, that if he got like old Mr. Slagle, his property might not reach to keep him. I told him if I was in his place, I would take the good of what I had while I lived, .and if there was anything left it was his own, and he could do with it as he pleased.”

Again: “ After that Bowman called me into the office and told me he had made up his mind to make a will. He always thought he might give Jake something. He told me the way he was fixed he did not know what to do about it. He asked me what he ought to do about it. I told him if he wanted to give Jake something, he could make it so .that his debts and funeral expenses should be paid first, and then he could give Jake whatever he had a mind to; if nothing was left, there would be no harm done.”

This testimony does not even raise the idea of solicitation, much less that of improper or fraudulent conduct upon the part of Tawney. It contains but the advice one prudent and cautious neighbor might give to another under like circumstances.

Then we have the declarations of the testator himself, as found in the testimony of Henry Long and his wife; that John E. Tawney was dingdonging at him to make his will, and leave all he had'to him and his family.”

But these declarations prove nothing but such solicitations as do not affect the validity of a will. Even importunate persuasion from which a delicate mind would shrink, will not invalidate a devise: Miller v. Miller, 3 S. & R. 267. But beyond this these declarations are too remote from the time of execution, and are not so connected with other facts and circumstances indicating circumvention or fraud in the procurement of the will as to make them part of the res gestee, and are therefore not evidence: 2 Greenl. Ev., part 4, sec. 690 ; McTaggart v. Thompson, 2 Harris 149.

We cannot think, therefore, that all this evidence taken together was sufficient to raise such a question of undue influence as should have been submitted to the jury. Undue influence, of that kind which will affect the provisions of a testament, must be such as subjugates the mind of the testator to the will of the person operating upon it, and in order to establish this, proof must be made of some fraud practised, some threats or misrepresentations made, some undue flattery, or some physical or moral coercion employed, so as to destroy the free agency of the testator, and these influences must be proved to have operated as a present constraint, at the very time of making the will. But constraint is not to be inferred from mental weakness alone, though the weak mind may be more readily constrained and deceived than the strong one; and though it is to be considered as a fact in determining the question of constraint, nevertheless, as is said in McMahon v. Ryan, 8 Harris 329, that undue influence, which suffices to destroy an alleged will, is distinct from weakness and has no necessary connection with it.

So it has been held that general bad treatment furnishes no evidence of such influence, and we may add, neither does general kindness, though this may have a powerful influence upon a weak mind, unless it is shown to be part of a crafty arrangement to procure the testamentary disposition: Thompson v. Kyner, 15 P. F. Smith 368; Rudy v. Ulrich, 19 P. F. Smith 177; Eckert v. Flowry, 7 Wright 46.

Erom the above statement, it is obvious that the case in hand is utterly barren of evidence tending to show undue influence as the cause which operated on the mind of John Bowman to produce the disposition of his property complained of' by the defendants. It follows that the court erred in not answering the plaintiff’s sixth point in the affirmative.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Williams

text:
    Peterman’s Appeal.
    1. Peterman made an assignment for the benefit of creditors, ,of all his property, “ except so much as may be exempt by the laws of this Commonwealth from levy and sale on execution, &c., to be selected by (him) and appraised for the use of himself and family according to law.” He selected and received §99 of personal property. The assignee settled the estate, his account was confirmed and the balance distributed to creditors, Peterman having made no further claim. Previously to the assignment his mother had died intestate, seised of real estate ; his share in it was not included in the assignee’s account. In the distribution of the proceeds of the mother’s real estate under proceedings in partition in the Orphans’ Court, Peterman demanded the remainder of the 5300 under the exception in the assignment. Held, that he was entitled to it, although no appraisement had befen made of this fund.
    2. Peterman had not waived his right to the exemption, he having claimed it as soon as he had a right to demand and receive it out of the fund.
    3. There cannot be an appraisement under the Exemption Act of April 1849, of property excepted by the debtor in his assignment.
    4. The appraisement of the property which an assignor elects to keep under the exemption laws, is to be appraised by the appraisers of the assigned estate.
    5. Where the assignor elects to receive the amount of his exemption in money, an appraisement is not necessary.
    6. The right of the assignor to make the exception depends upon the exemption acts ; his right against the assignee depends upon the exception in the assignment.
    May 8th 1874.
    Before As-new, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Orphans’ Court of York county: Of May Term 1874, No. 107. In the estate of Sarah Peterman, deceased.
    On the 25th of January 1871, Lewis Peterman made an assignment to Edmund Ilershey of all his property of every kind for the benefit of his creditors, “ except however so much as may be exempt by the laws of this Commonwealth from levy and sale, on execution and distress for rent, to be selected by the said Lewis, and appraised for the use of himself and family, according to law.”
    Under this exception personal property to the amount of $99.88 was appraised and set aside by the assignee to Peterman. The remainder of his property was sold by the assignee, whose account was settled and confirmed, and duly distributed amongst, tbe creditors by the Court of Common Pleas.
    The mother of Peterman had died intestate previously to the making of the assignment, seised of real estate, which descended to her children, of whom Lewis Peterman was one, but had not been included in the assignee’s account, Peterman, as he testified, .not having known at the time of the assignment anything about it. Afterwards under proceedings in partition in the Orphans’ Court, this real estate was sold by Samuel Hay, trustee appointed by the Orphans’ Court for that purpose. The trustee having settled his account showing in his hands a balance of $1624.75, N. M. Wanner, Esq., was appointed auditorio report distribution.
    Before- this auditor, Lewis Peterman claimed under the exception in his assignment so much of his share as with the amount he had already received would make $300 ; the assignee claimed the whole of the share.
    The auditor found the foregoing facts and concluded his report as follows:—
    * * * “ The only question now is what right has Lewis Peter-man in this distribution to a part of the share which he had assigned for the benefit of his creditors ? He claims it under the exemption laws. But the mere reservation of property under a deed of assignment is not enough in itself to secure it to the debtor. He may waive the benefit of it, or he may lose it by neglect. It must be followed up by his demanding it in the manner prescribed by law. His property passes into the hands of his assignee, and then, on demand made for it, it is appraised and set aside for his use. That is the course the law has fixed, and any right Lewis Peterman may have here, must rest on claims properly made upon his assignee. The facts are that after the appraisement of certain personal property to him, he declined taking any more personal property, but demanded the balance in money, knowing at the time that no money had passed under the assignment, but expecting to get it out of the proceeds of his real estate, then in the hands of his assignee. He also says that at that time he did not know that there was anything coming to him out of his mother’s estate, and did not claim any real estate as such. He is not, therefore, entitled to any money out of the proceeds of any real estate. For it is only after he has demanded real estate as such, and it has been found impossible to measure it off to him without injury to the whole, and the appraisers have so reported, that the debtor can get money out of the proceeds of its sale. The auditor therefore awards the share of Lewis Peterman in this distribution to Edmund Hershey, his assignee, for the benefit of his creditors.”
    The auditor awarded Lewis Peterman’s share, amounting to $263.11, to his assignee.

      Lewis Peterman filed exceptions to the report of the auditor, amongst others the following :—
    2. The auditor finds as a fact that at the time the assignment was executed Lewis Peterman did not know of this share in his deceased mother’s estate, nor until after the assignee’s account was settled and the balance distributed, and as a party is not bound to make his selection until he knows what he has to select from, the demand made upon the fund for distribution is in time, if no other demand had been made, and the auditor erred in not so deciding, and in not awarding Lewis Peterman’s full share, less $99.88, to him.
    3. The auditor erred in applying the decisions with reference to defendants in executions to the case before him, and in deciding that a demand upon the assignee was necessary to entitle Lewis Peterman to his distributive share.
    7. The auditor erred in deciding that Lewis Peterman was not entitled to receive his share of the fund for distribution, and that the voluntary assignment from him to Hershey passed the whole of Peterman’s property, less $99.88, notwithstanding the said assignment contains an exception as stated in his report.
    In delivering the opinion of the court on the exceptions, Eisher, P. J., said: * * *
    “ The words in which the reservation is made are peculiar; they are ‘ To be selected by the said Lewis, and appraised for the use of himself and family according to law.’ What law ? Certainly the law allowing the exemption of three hundred dollars from levy and distress to insolvent persons. Under the act relating to the exemption, real estate could not be set apart, unless it was specifically claimed and appraised. In this case the amount Lewis Peterman did not receive in personal goods, he demanded to be paid in money and not in real estate. * * * As Lewis Peterman did not demand the balance of the three hundred dollars in land, and did not demand an appraisement, and because none was made, we think he cannot claim the money in the distribution of the proceeds of the sale of his mother’s estate, but that it goes into the hands of his trustee to be distributed among the creditors entitled to it under the assignment.”
    The exceptions were dismissed and report of auditor confirmed.
    Peterman appealed to the Supreme Court and assigned the confirmation of the auditor’s report for error.

      J. L: Mayer (with whom was J. Blackford), for appellant.—
    The principal thing in a deed is the end and design of the grantor, and the words ought to be construed so as to effect his intention : Worrall’s Accounts, 5 W. & S. 113; Williams v. Bentley, 3 Casey 301: Stewart v. Lang, 1 Wright 203; Cox v. Freedley, 9 Casey 124. If there be any ambiguity the circumstances and acts of the parties at the time, and subsequent to the transaction, are to be considered to ascertain their intention : Miner’s Appeal, 11 P. F. Smith 289.
    An exception is the taking of something out of the thing granted, which would otherwise pass by the deed: 3 Wash, on Real Prop. 869; Craig v. Wells, 1 Kernan 321. “ The thing excepted doth not pass by the grant, neither is it parcel of the thing granted:” Shep. Touch. 77; Greenleaf v. Birth, 6 Pet. 302; Mulford v. Shirk, 2 Casey 475; Act of 9th April 1849, sect. —, Pamph. L. 1849, 533; 1 Brightly’s Purd. 636, pl. 20. The fund is money for all purposes and not land: Hay’s Appeal, 2 P. F. Smith 450 ; Pennell’s Appeal, 8 Harris 515. Being money and not land no appraisement of it is necessary under the 2d sect, of the Act of Assembly: Larrison’s Appeal, 12 Casey 130. A party is not bound to make his election until he is fully informed as to what he has to select from : Dickinson v. Dickinson, 11 P. F. Smith 402; Kreiser’s Appeal, 19 Id. 194. This assignee’s title is not paramount to that of the appellant under the exception in his deed: Fulton’s Estate, 1 P. F. Smith 211.
    The words “according to law” in the exception are not to be restricted to the mode of appraisement under execution, &e., but refer to his right to the exemption : McClure v. Douthitt, 3 Barr 446; Wood v. Hills, 7 Harris 513.
    There was no paper-book nor oral argument for the appellee.
   Mr. Justice Williams

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

This is a proceeding in the Orphans’ Court for the distribution of the fund arising from the sale of the real estate of Sarah Peter-man, deceased. The sale was made by a trustee under an order of the court, in proceedings in partition, and, upon the settlement and confirmation of his account an auditor was appointed to distribute the balance of the money in his hands. The appellant, Lewis Peterman, was entitled, as son and heir at law of the decedent, to the one undivided sixth part of the estate of which she died seised. But before the sale by the trustee, he made a voluntary assignment, for the benefit of his creditors, of all of his real and personal estate, “ except, however, so much as may he exempted by the laws of this Commonwealth from levy and sale on execution and distress for rent, to be selected by the said Lewis Peterman, and appraised for the use of himself and family, according to the law.” He selected certain personal property, which was appraised at $99.88, and set apart for his use. The residue of the estate, with the exception of his interest in the land out of which the fund for the distribution arose, was sold by the assignee and the proceeds distributed among the creditors. On the hearing before the auditor, the appellant claimed that he was entitled to so much of his share of the fund as would with the appraised value of the property which he had elected to retain, amount to the sum of three hundred dollars, but the auditor distributed the whole of his share to the assignee, and the court confirmed his report. Is the appellant then entitled to the portion of the fund he claims? It is clear that he is, unless his right to it was divested by the deed of the assignment. Whether it was or not, depends upon the construction to be given to the exception in the deed. He had the undoubted right to reserve for the use of himself and family, property to the value of'three hundred dollars. His right to except it out of the assignment is founded on the Exemption Act of the 9 th of April 1849, but his right to it as against the assignee, depends upon the exception of the deed. It is true that the deed does not specify or define the property intended to be excepted, but leaves it to be selected by the assignor. But his right of selection is not confined to any particular description of property, nor is it subject to any condition whatever; and his right to the property, when selected, is as perfect as if it had been specially excepted out of the assignment. It is to be appraised in order to ascertain and determine its value, and not for the purpose of enabling the assignor to exercise the right of selection. His right to select the amount, to which he is entitled under the exception, out of any part of his estate, does not depend upon its previous appraisement ; and if it did, the appraisement is not to be made under the Exemption Act, as ruled by the court below, but under the provisions of the act relating to assignments for the benefit of creditors, by the appraisers appointed by the Court of Common Pleas to appraise the assigned estate. It is manifest that there can be no appraisement of the property selected by the assignor under the provisions of the Exemption Act. The appraisement, for which it provides, can be made only by appraisers chosen by the sheriff, constable or other officer charged with the execution of a warrant, or writ for the levy and sale of the debtor’s property. But the appraisers of the assigned estate must necessarily fix the value of what the assignor proposes to keep, else they cannot assess what the assignee is to account for: Mulford v. Shirk, 2 Casey 475. But where the assignor elects to receive the amount to which he is entitled in money, no appraisement is necessary. To appraise money is to count, and counting answers all the purpose of appraisement: Larrison’s Appeal, 12 Casey 130.

If then the appellant had the right to elect that the residue of the amount excepted from the assignment should be paid him out of the fund for distribution, as he undoubtedly had, and if no demand of an appraisement under the Exemption Law was neeessary in order to enable him to exercise the right, it is clear that he was guilty of no laches in making the election. He claimed that the residue of the amount, to which he was entitled, should be paid out of the fund as soon as he had the right to demand and receive it. He had an undivided interest, as already suggested, in the land out of which it arose. It was not in his possession when he made the assignment, and it was not converted into money by the act of his assignee, but by the order of the Orphans’ Court, because partition of it could not be made among the heirs. As soon as his right to the fund attached he asserted his claim to it, and as he had not parted with his right to the amount which he claimed, he was clearly entitled to it as against the assignee. The Orphans’ Court was, therefore, in error in not awarding to the appellant the sum of two hundred dollars and twelve cents out of the fund for distribution, and directing the residue of the share in controversy, viz., the sum of sixty-two dollars and ninety-nine cents, to be paid to the appellee. The decree confirming the auditor’s report must be reversed, and the record remitted to the Orphans’ Court, with instructions to enter a decree in conformity with this opinion. The costs of this appeal to be paid by the appellee out of the portion of the fund decreed to him.

Decree accordingly. '


author: Mr. Justice Mercur

text:
    Watson’s Executors versus Stem and Wife.
    1. A daughter sued her father’s estate for wages for services after she attained twenty-one, her last services being more than six years before suit. Meld, that she must prove an express contract and a dear, distinct and unequivocal acknowledgment of the existence of the debt, within six years of the commencement of suit.
    2. ’Where there is a distinct admission of an existing indebtedness for a specific sum, it is presumed to be a valid debt and the presumption must stand until overthrown by the attending circumstances or other evidence.
    3. Evidence in this case sufficient for the jury on the question of indebtedness and the Statute of Limitations.
    May 8th 1874.
    Before Aunew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Adams county: Of May Term.1874, No. 87.
    This was an action of assumpsit commenced August 4th 1870, by William C. Stem and Eliza his wife in her right, against Robert Watson and James Watson, executors, &c., of James Watson, deceased.
    Mrs. Stem was the daughter of the decedent; her claim was for wages for services rendered to her father, from the time she came of age March 22d 1848, until November 16th 1854, when she was married and left her father’s house. The pleas were “non assumpsit” and “non assumpsit infra sex annos.”

      The case was tried February 4th 1874, before Butler, P. J., of the 15th district.
    The plaintiffs gave evidence that Mrs. Stem had worked at ordinary housework for her father continuously during the time for which she claimed to be paid.
    Thomas Anderson testified that about the 1st of June 1849, in consequence of some disagreement with her brothers, Mrs. Stem was going to leave her father’s house; her father told her if she would stay and do the work as she had been doing he would give her $2.50 per week and find her clothes. She said she would stay.
    Mrs. Stoops testified that in and previously to January 1854, witness was living at the decedent’s ; Mrs. Stem was in charge of her father’s house. “ On Saturday before Christmas she went away on a visit to her friends about Hanover, and returned Saturday after New Year’s. Mr. Watson was there when she returned and was displeased with her. He. told her she should leave — he did not want her to stay. She went upstairs then to pack up her clothes. I told him he had better keep her — he would not get a better girl or woman in his house. He wanted me to stay in her place, and I told him I would not do it for $2 per week, I went up. and asked her at his request if she would stay for $2.50 per week, and 'she said for not less than $3. I came down and told Mr. Watson. He said she should stay and he would give her the three dollars per week from that time when she came home after Christmas. She was to have $2.50 from time her mother died. I then after seeing him went upstairs and told Eliza he would give her $3 a week from that time. I told her that he said he would give her $2.50 per week from the time her mother died. She said she would stay when I repeated it to her. I don’t know anything about the wages before her mother died.”
    John Stevens testified: “I met old Mr. Watson about 1866 at Dr. Stem’s house, about June. No one was there but me and Stem and Watson. I said to Mrs. Stem, You are hard at it. She said, Yes I have worked hard all my life and haven’t got much for it yet. And the old man replied, Eliza, I will pay you wages for all you have worked for me over age.”
    Sarah Cullison testified: “I met with James Watson at Dr. Stem’s in 1865, in forepart of summer. I asked Mrs. Stem if that was her father, and she said yes. She asked her father for money and said she was going to buy land. He said he could not give it to her at this time. He said he had bought a farm in the mountain that he had to pay for and after that he would pay her wages. He said he knowed he had not paid her for Avhat she worked for him, but he Avould pay her from the time she was of age or worked over age.”
    Henry Hahn testified: “ I was at Stem’s in June 1866, when Watson was there. Eliza and her father were there when I went in. She said, ‘ Pap, you know I have worked hard for you over age, and that I have never got anything for it.’ He said, ‘Eliza, I know you have worked hard over age, and I have never paid you, but I will pay you.” She asked him why he could not pay her some now as well as John. He said, ‘ I must do as the boys say or I can’t live with them.’ She asked him if he knew what he had promised her, and he said he did, and that it was $2.50 per week from the time she came of age until after her mother’s death, and $3 after her mother’s death per week as long as she remained with him.”
    Daniel Knouse testified: “ I was at Dr. Stem’s in 1865 — after harvest. James Watson was there h\ Stem’s house. I said to her, ‘ You are hard at work,’ and she said she had been hard at work all the days of her life. She said she had wrorked for her father a part of the time for $2, and part at $3 per week, and had "not got anything for it yet. The old man said he didn’t see she was in great want — that he would pay her but not at the present time, but afterwards.”
    The wife of the decedent and mother of Mrs. Stem died January 16th 1851; he died in March 1870.
    The defendants’ point, which was declined, was:—
    “ The evidence of acknowledgments and new promises made within six years before the bringing of this suit, by James Watson, senior, to his daughter, Mrs. Stem, the plaintiff, is not sufficient in law to defeat the plea of the Statute of Limitations, and, therefore, there can be no recovery in this case.”
    The court charged:—
    * * .* “ The claim runs back many years and is brought against the estate after the father’s death. It should therefore be scrutinized with great caution, if not suspicion, and should only be allowed in case it is fully and clearly proved, in the manner required by law.
    “ The defendant asks us to charge you that — ‘ To enable a child to recover for acts of kindness or services rendered to a parent, there must be an express agreement and promise of the parent to pay for the services rendered; and unless there was such a contract proved as satisfies the jury that there was a promise on the part of the parent to pay for the services, the child cannot recover.’ And we do so charge you; such is the law. To entitle the plaintiff, therefore, to recover any part of her claim she must prove to your satisfaction that the services on which it is founded were rendered in pursuance of an express contract on the part of her father to pay for them. The law makes no presumption in her favor. No contract can be implied, for the law presumes, in the absence of evidence to the contrary, that the services rendered by a child to the parent under such circumstances, are not to be paid for. An express contract to pay must, therefore, be proved, or the plaintiff must fail. But even more than this is necessary in the case before us. The last of the services having been rendered in 1854, the entire claim is barred by the Statute of Limitations, unless it is also proved that the father, within six years of this suit, plainly and unequivocally recognised and admitted his liability for the claim, as'by a promise to pay it.
    “ The suit was brought on the 4th day of August 1870/ Six years would take us baick to August 4th 1864.
    “ Thus the plaintiff must prove not only that there was an express contract between her father and herself in pursuance of which the services were rendered, but also that her claim was distinctly and unequivocally acknowledged — as by a promise to pay it — within six years of August 4th 1870 — that is, as late as August 4th 1864.” * * *
    The judge referred to the testimony of several of the witnesses and proceeded:—
    “John Stevens says, that, in 1866,.he was at Dr. Stem’s and heard a conversation between Eliza and her father, in which she said she had worked hard all her life, and had not got much for it yet; and that Mr. Watson replied, ‘ Eliza, I will pay you wages for all you worked for me over age.’ The testimony of this witness must not be misunderstood. The language referred to by him neither creates a contract nor acknowledges one as previously existing. This was in 1866, after all the services were performed; and a. promise at that time, in the absence of a previous contract, would not bind Mr. Watson, nor have any force whatever. The only purpose for which this testimony can be appealed to, therefore, is to show acknowledgment of an existing legal claim within six years of suit brought, and you will judge whether it tends to this or not. Of itself it is of no value whatever.” * * * He then stated the testimony of Sarah Cullison and said : “ We need not repeat here what we have just said in connection with the testimony of the previous witness; you will judge whether this was an acknowledgment of a previously existing obligation to pay the daughter wages — as upon a contract to do so. The time referred to by the witness, you will observe, was the summer of 1865.” * * *
    He then repeated Henry Hahn’s testimony and said: “ [This testimony is appealed to by the plaintiff as evidence of a previously existing express contract to pay wages during the entire period claimed for, and of a renewed promise to pay what was due, within six years of suit. You will determine what weight should be given to it for this purpose.] In considering it you will bear in mind the comments of counsel on both sides; and also the admission of the witness that he heretofore declared he knew nothing about the case, which he undertakes to explain by saying, in effect, that he supposed the inquiry to be made for an improper purpose, the individual having no interesan the matter. You will further hear in mind that the witness (as well as the others called), undertakes to give a conversation which occurred years ago, and will thus judge in how far he can be relied upon, and what weight should be attached to his testimony.” * * *
    “We now repeat, to entitle the plaintiff to recover, the evidence must satisfy your minds, first, that the services were rendered in pursuance of an express contract on the part of Mr. Watson to pay for them; and second, that he plainly and unequivocally acknowledged his liability for the claim or debt due under this contract within six years of the commencement of this suit. If the evidence does so satisfy your minds that the services were rendered in pursuance of such express contract, and that Mr. Watson did so distinctly and unequivocally acknowledge his liability under it for the claim, within six years of suit brought, your verdict will be for the plaintiff for such sum as you may find to be thus due to her.”
    The verdict was for the plaintiffs for $3483.
    The defendant took a writ of error.
    They assigned for error, the refusal of their point and the part of the charge in brackets.

      W. Me Olean and J. Mel). Sharpe, for plaintiffs m error.
    — To take a case out of the Statute of Limitations, the evidence of the acknowledgment of the debt must he clear, distinct and unequivocal : Farley v. Kustenbader, 3 Barr 418; Burr v. Burr, 2 Casey 284. A naked admission of indebtedness without indicating the amount or nature of the debt, is not sufficient: Shitler v. Bremer, 11 Harris 413 ; Huff v. Richardson, 7 Id. 388 ; Emerson v. Miller, 3 Casey 278; Clark v. McGuire, 11 Id. 259; Shaffer v. Shaffer, 5 Wright 51; Johns v. Lantz, 13 P. F. Smith 326. The acknowledgment must be of a subsisting debt: McClelland v. West, 9 P. F. Smith488; Weavers. Weaver, 4 Id. 154; Huff v. Richardson, 7 Harris 389.

      JD. McConaughy (with whom was B. C. McCreary), for defendants in error.
    — It belongs to the jury to ascertain the meaning of the words proved: 3 Starkie on Ev., 932, 933. A clear, distinct and unequivocal acknowledgment of a debt removes the bar of the statute: Johns v. Lantz, 13 P. F. Smith 324. He cited also Haslebacker v. Reeves, 2 Jones 264; Davis v. Steiner, 2 Harris 275; Suter v. Sheeler, 10 Id. 308. It was the province of the jury to pass upon the testimony both as to its credibility and its effect: and it was the duty of the court to submit it to them: Dougherty v. Stephenson, 8 Harris 210 ; Thomas v. Thomas, 9 Id. 315 ; Breinig v. Meitzler, 11 Id. 156 ; McIldowney v. Williams, 4 Casey 492; Balt. & Ohio Railroad Co. v. Hoge, 10 Id. 214; Bank v. Donaldson, 6 Barr 179; Hastings v. Eckley, 8 Id. 194; Fleming v. Parry, 12 Harris 47.
   Mr. Justice Mercur

delivered the opinion of tne court, May 25th 1874.

This was an action by a daughter, against the executors of her father. She claimed for services which she had performed for her father after she had arrived at the age of twenty-one years. More than six years had elapsed after the last services were rendered, before suit was brought. The plaintiffs in error denied any original legal obligation to pay, and also interposed the Statute of Limitations. Hence to enable the defendant in error to recover it was necessary for her to establish,

First. An express contract to pay.

• Secondly. A clear, distinct and unequivocal acknowledgment, within six years prior to the commencement of the suit, of the existence of the debt.

Both these propositions were so distinctly declared by the learned judge, that we do not understand the plaintiff in error to complain of the charge in that respect.

The errors assigned involve the sufficiency of the evidence to justify the court in leaving it to the jury to find those facts.

1. The evidence is conflicting as to the precise sum the father agreed to pay for her services. Thomas Anderson testified, that about the forepart of June 1849, some difficulty arosd between the defendant in error and her brothers, and she expressed an intention of leaving. That her father “ told her if she would stay and do the work as she had been doing, he would give her $2.50 per week and find her clothes. She said she would stay.” She did stay.

Her mother died the 16th January 1851.

Mrs. Stoops testified that early in January 1854, the father was displeased with the defendant and told her he did not wish her to remain. That she then went upstairs to pack up her clothes. Then the father requested the witness to go and ask her if she would stay for $2.50 per week. The witness went and asked her. She replied she would not for less than $3. The witness returned and communicated this answer to the father. The negotiation resulted in his proposing to pay her $3 a week from the time she came home after Christmas, and previous to that $2.50 per week from the time her mother died. The defendant in error accepted this proposition, and remained until her marriage in November following. We think this evidence wTas clearly sufficient to justify the court in leaving to the jury to find an express agreement to pay for her services. Whether her wages were to commence in 1849 or not until the death of her mother, was for the jury to determine.

2. Sarah Cullison testified that in the summer of 1865, upon the defendant in error asking her father for money, he replied, “ he knew he had not paid her for what she had worked for him, but he would pay her from the time she was of age or worked over age.” John Stevens heard him tell her in June 1866, “ I will pay you wages for all you have worked for me over age.”

Henry Hahn testified that he was at Stem’s in June 1866, the father and daughter were both there. She said, Pap, you know I have worked hard for you over age, and that I never have got anything for it.” He said, Eliza, I know you have worked hard over age, and I have never paid you, hut I will pay you.” She asked him if he knew what he had promised her, and he said he did, that it was $2.50 per week from the time she came of age until after her mother’s death, and $3 after her mother’s death per week as long as she remained with him.”

This is evidence of a clear and distinct admission that he had agreed to pay for her services, from the time she became of age, naming the precise sum. It is not of an uncertain or casual remark made to a stronger. It was in a conversation between the parties, and in answer to a question put by the daughter to her father upon the precise point. With his attention thus called to it, he gave this explicit answer.

It is further evidence of an equally clear and distinct admission that he had never paid her, and of a positive promise to pay. The plaintiff in error contends that this admission made in 1866 may have been of a promise made after the services had been rendered, and as between parent and child insufficient to create a valid contract. We discover nothing in the language used to lead to that conclusion. The admission was made in a conversation when she was asking him “ to pay her some now.” In case of a distinct admission of an existing indebtedness for a specific sum, it is presumed to be a valid debt. This presumption must stand until overthrown, either by the attending circumstances or other evidence. We discover no evidence fairly leading to the conclusion claimed by the plaintiff in error. The evidence clearly justified the court in submitting to the jury to find whether the services were rendered in pursuance of an express contract on the part of the father to pay for them.

The proof of the father’s acknowledgment, within six years before suit brought, of his continued indebtedness and of his liability to pay her, was so clear that the evidence was properly submitted to the jury. The case was submitted in a very lucid manner. We discover no error either in the general ■ charge of the court, nor in the answers to the point submitted therefor.

Judgment affirmed.


author: Per, Curiam.

text:
    Roth and McCrone versus Humrich and Maglaughlin.
    1. Maus sold land by verbal agreement to May, the deed to be made to such person as May should direct: May then gave notes for the purchase-money, and judgments were entered on them ; one-half the purchase-money having been paid, judgment was recovered against May; the remainder of the purchase-money was. subsequently paid. Maus, at the request of May, conveyed to Roth, and afterwards the land was levied on and sold on the judgment against May. Held, that May’s equity was liable to the execution of his creditor and his title passed to the purchaser at sheriff’s sale.
    2. When Maus, at the request of May, executed the deed to Roth, May’s inchoate title became complete so far as concerned Maus, who alone could set up the Statute of Frauds.
    3. l'he deed to Roth perfected May’s title, and it enured to the benefit of May’s creditors.
    4. Roth paid no part of the purchase-money and therefore could not contest May’s title ; a resulting trust arose to May when Roth took the deed, and the title passed to the sheriff’s vendee under the judgment against May.
    May 11th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1874, No. 23.
    This was an action of ejectment, brought March 28th 1870, by C. P. Humrich and C. E. Maglaughlin against Alexander McCrone, for a lot of land in West Eairview, being 58 feet in front and 139 feet deep. On the 22d of November on application of Ferdinand Roth, who claimed title to the property, he was joined as a party defendant.
    On the 19th of October 1858, one Daniel G. May became the owner of this lot with other real estate, under proceedings in partition of the estate of Frederick May, deceased.
    The case was tried November 21st 1872, before Junkin, P. J.
    The plaintiffs gave in evidence a judgment entered June 5th 1868, on award of arbitrators for $2723.48 in favor of Elizabeth May against Daniel G. May; appeal from the award and judgment on verdict, March 25th 1869, for $2530.41; fi. fa. on the judgment issued July 19th 1869, and levy on the land in dispute, writh other land, on the same day. The premises in dispute were sold by the sheriff to the plaintiffs for $270, and the deed to them acknowledged November 15th 1869.
    The plaintiffs having rested, the defendants gave jn evidence a deed dated August 31st 1867, and recorded November 2d 1869, from Daniel G. May and wife to Levi D. Maus for the premises, the consideration being $3000; also, deed from Maus to defendant Roth, dated August 5th 1869, and recorded January 28th 1870, for the same premises, the consideration mentioned being $3000 ; also, written “notice to bidders,” from Roth, posted at the courthouse at the time of the sheriff’s sale of the property, notifying bidders that the premises did not belong to May, but had been conveyed by him to Roth, as above stated.
    The plaintiffs in rebuttal called Levi D. Maus, who testified: That he went into business with May at Fairview, and bought the property, May informing him at the time that if he was not satisfied with it, he, May, would take it back. Witness being desirous to remove from Fairview, May agreed to take the property back at $3000, and said that witness should not make a deed to him, but let it stand as it was, that he expected to give it to his son Joseph if he did well, and whenever May was ready witness should make a deed to Joseph or to any other person whom May should designate, and witness agreed to do so. “ All this was by word of mouth, no writing.” The purchase-money was summed up with their other business. May gave witness two judgment-notes dated Dec. 1st 1867, one at four months for $1568 and the other at fifteen months for $2000.; on these notes judgments were entered. Maus left the premises March 28th 1868 and moved to Littlestown, Adams county. On the 1st and 2d of April 1868, $1568 were paid; on the 24th of December 1868, $1500 were paid, and in the spring of 1869, the remainder was paid. May afterwards brought to witness the deed of August 5th 1869, and asked him to execute it to Roth and he did so; no money was paid at the time; witness never had any communication with Roth.
    John Olwine testified that May told him he had purchased back the premises from Maus; that in April 1868, he put up this property at auction for rent.
    John Sheaffer testified that he was the crier at the auction April 10th 1868 for renting the house ; that it was struck off at $150 per annum ; that May said possession would be given immediately.
    There was other evidence of May’s declarations that he had re-purchased the property from Maus; also evidence that he had rented it and put tenants into possession, amongst others one Tomy, who went in immediately after the auction, and McCrone, one of defendants. McCrone testified that he paid rent to May, Roth never demanded or received any rent from him ; also, evidence that the premises were assessed in May’s name and that he paid the taxes.
    The court, in charging the jury, after recapitulating the evidence, said :—
    “ No fact in the case is disputed or involved in contradiction, and under this state of things and in this kind of a case, we must give you binding instructions.
    “ The title of the plaintiffs must be derived through the lien of the judgment in execution of which they purchased, which bound from the 5th of June 1868 on the award; or else from the 25th of March 1869, the date of the judgment on the verdict or else by virtue of the lien of the levy which was July 19th 1869; either would bind any estate which the defendant May had at the time in the premises in dispute. The question then is, what estate, if any, did this parol sale by Maus to May give the latter in the lot, either on the 5th of June 1868, or the 25th of March 1869, or the 19th of July 1869. On the 5th of June 1868, $1000 of the purchase-money had been paid and May had gone into possession by his tenant Tomy, * * * and beyond all peradventure, on the 19th of July 1869, when the levy was made, no part of the purchase-money was unpaid. Had this sale been in writing we would all agree that May had an equity which the judgment bound, and while it is conceded that the statute permits no greater estate than a lease at will in land to be created by parol, yet when a chancellor decrees specific performance of a parol sale of land, it must be because he finds about it that which takes the contract out of the operation of the statute, and if so taken out it becomes valid, recognised as a valid agreement, and if so, it must confer rights; and if it confers anything it cannot be less than an equitable estate in the land in the vendee, and this a judgment will bind. * * *
    “It has never been questioned, since Bellington v. Welsh, 5 Binney 129, that where both purchase-money was paid and possession taken by the vendee in pursuance of the contract, that a decree of specific performance would be made. * * * Maus moved away from the property in the spring of 1868, to Littlestown, thirty miles distant, and May publicly took possession, in pursuance of his purchase, by leasing at public outcry to a tenant who entered and occupied, and paid rent and was succeeded by another tenant, McOrone, who is a defendant, and who paid rent to May. * * * In the present case, Maus, the vendor, comes into court, proves the contract and in fact has fully executed it by conveying the legal title to Ferdinand Roth, the defending landlord, so that we think that the lien of the judgment against May did bind his equitable estate in the premises, and these plaintiffs own it by virtue of their purchase at sheriff’s sale.
    “ But before the plaintiffs can recover it must appear that Ferdinand Roth is not a bond fide purchaser without notice of the equitable estate of May on which the judgment- became a lien. Roth holds the legal title beyond all question, as appears by the deed of the 5th of August 1869, made by Maus at the request of May. If Roth ever paid any purchase-money it was not to Maus; because the proof is uncontradicted that May himself paid the $3000 purchase-money to Maus ; that he carried the deed to Maus and got the latter to execute it, thus conveying the legal title to Roth. * * * It is not shown that Roth ever paid a dollar to May; and it is a conclusion of law that where one man pays the money for land'and directs the conveyance tobe made'to another and no more is said, the law raises a resulting trust in favor .of him who pays the money; the law never presumes that a man pays his money for another but for himself only. * * * The application of this principle to the ease in hand makes Roth a mere trustee for May, so that the aid of a chancellor was never needed to execute this parol contract, the parties consummated it themselves by this conveyance. * * *

      “ On the whole case then we direct you to find a verdict for the plaintiffs,”
    The verdict was for the plaintiffs.
    The defendants took a writ of error and assigned for error, the instructions of the court to the jury.

      S. Hepburn, Jr., and S. Hepburn, for plaintiffs in error.
    This ejectment is in the nature of a bill in equity to enforce specific performance of a verbal agreement for the sale of land: Dougan v. Blocher, 12 Harris 28. Generally possession taken and maintained in pursuance of a parol contract admits of compensation, and too much is' made of 'it when treated as sufficient ground for decreeing specific execution: Moore v. Small, 7 Harris 461. Possession was not taken in pursuance of the contract; it is delivery of possession upon the contract to which equity looks, and not to the subsequent continuation of it: Richards v. Elwell, 12 Wright 361. The possession must be exclusive in the vendee: Chadwick v. Felt, 11 Casey 305. The deed from Maus to Roth conveyed the entire estate and was primfi facie evidence that Roth paid the consideration in good faith : Wilson v. Howser, 2 Jones 109; Okison v. Patterson, 1 W. & S. 395; Sprague v. Woods, 4 Id. 193.

      T. Oornman and L. Todd, for defendants in error, were stopped by the court.
   Judgment was entered in the Supreme Court, May 18th 1874.

Per, Curiam.

It is not material whether the parol resale by Maus to May was enforceable before the deed from Maus to Roth on the 5th of August 1869, or fell within the operation of the Statute of Frauds. Maus did not dispute it. He received the purchase-money from May and executed the deed to Roth at May’s request and direction, and delivered it to May. When he did so the inchoate estate of May arising from the purchase and payment of the price, became complete, so far as it concerned Maus, who alone could set up the Statute of Frauds. May’s equity was liable to the execution of his creditors, and by the sheriff’s sale, made after the delivery of the deed by Maus, passed May’s title to the purchaser at the sheriff’s sale. May clearly could not deny, the effect of the sale upon the execution against him, if the deed had been made to himself instead of Roth. If the deed to Roth' made his title perfect, it enured to the benefit of May’s creditors. The only question now is, whether Roth can contest May’s title. It is clear lie cannot, for he was not a purchaser and paid no purchase-money. He had nothing to do with the deed or the land. It is the ordinary case of one man buying, paying the purchase-money, and taking the deed in the name of another. A resulting trust for May arose when he took the deed. Roth was a mere trustee of the title, and this title passed by the sheriff’s sale after-wards. Judgment affirmed.