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      Orphans’ Court, Dauphin County,

      February 1st, 1865.
    In the Matter of Cunkle’s Estate.
    Where the person named as legatee in a will is dead at the time of making it, the legacy is void, and the amount of the legacy will be distributed among the other persons of the same class as the intended legatee.
   By the Court.

Isaac Collier, by his petition, asks the Orphans’ Court to decree distribution according to law of a bequest made by Ann C. Cunkle to Ellsworth Collier, his minor son, deceased.

From the petition, which doubtless states the facts correctly, it appears that Mrs. Cunkle bequeathed to Maiy C. Collier, Louisa J. Collier, and Ellsworth Collier, children of Sarah Collier, deceased (formerly Fitting), intermarried with the petitioner, one-third part of the residue of her personal estate, to be divided equally between them. Sarah Collier was a sister’s daughter of Ann C. Cunkle. Mrs. Cunkle died on or about the 12th day of September, 1863, without issue. Her will was made and dated May 12th, 1863. Ellsworth Collier died on the 15th day of April, 1863, a mere infant, intestate and unmarried. This statement shows that Ellsworth Collier was dead before the will was made, consequently the legacy did not lapse but was void from the beginning. A legacy is said to lapse when the legatee dies after the making of the will, but before the death of the testator. It is void when the devisee or legatee was dead before the will was executed. There is no one in esse on whom the devise or bequest can rest. This distinction is clearly taken in 1 Jarman on Wills, p. 302, in note, and is fully supported by the authorities there cited. As to the portion bequeathed to Ellsworth, it is consequently very clear that the testator died intestate, and that share must be distributed to the next of kin of Ann C. Cunkle, or to the residuary legatees. Although there has been some conflict in the decisions between the next of kin or heir-at-law, and residuary legatees, in cases of lapsed legacies, there has been none where the same are void. There the sum bequeathed clearly goes to the residuary legatees. The whole residue of Mrs. Cunkle’s property is disposed of by her will. She directs the remainder of her real estate not prevkmsly devised, and the whole of her personal property, to be converted into money, and that, with her money at interest, and all other effects, to be divided into three parts; one-third part she bequeaths to Catharine Cunkle, one-third part to Mary C. and Alice Cunkle, and the remaining third to Mary C. Collier, Louisa J. Collier, and Ellsworth Collier, to be divided among them in equal shares. The only doubt presented in the case, is whether the share intended for Ellsworth shall be equally distributed between all of those residuary legatees, or go to his sisters. From the ■wording of the will, we are satisfied that the testator intended that each class of legatees should have one-third of the residue of her property. She had so divided it, and did not intend that it should be brought together again, or that either set of legatees should claim a portion intended for the other set. The children of Mrs. Collier take as a class according to our construction; consequently when the bequest is void as to one of the class, the other two will take as residuary legatees of that third into which the estate was directed to be divided. Such is the general rule in regard to devises of joint estates, in cases of lapse; the survivors take by the jus accrescendi. It is also the rule where the devise or bequest is to certain classes. Those of the class will take the lapsed legacy. This will, in our opinion, best effectuate the intention of the present testator, and her intention is the pole-star in construing her will. We are clearly of the opinion that Isaac Collier is not entitled to any portion of this money. He cannot take as heir of his son, for the son never had any interest in the estate, not any more than if he had not been named in the will, and his sisters, Mary and Louisa, take, not through or under him, but as residuary devisees of one-third of Ann Catharine Cunkel’s estate.

It is ordered that one-third of the money in the hands of the executor of Mrs. Cunkle be paid to Mary Catharine Collier and Louisa Jane Collier, or their respective guardians if they are minors.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Orphans’ Court, Dauphin County,

      June 14th, 1863.
    In the Matter of Fox, Guardian of Fox.
    A. bequeathed a sum of money for the purchase of a'house and lot for the use and benefit of his wife and children “ during the period she remains my widow, and after her death the same shall descend to my heirs according to law,” and in a subsequent part of his will referred to the above bequest, providing that “such life-estate in said house directed to be purchased and the annual interest aforesaid to be in lieu of dower.”

      Held, that the widow took an estate in such house and lot durante viduitate, under the rule that “ a clearly expressed intention in one portion shall not yield to a doubtful construction in another portion of the same instrument.”
    That in Pennsylvania an estate in realty durante viduitate can be created without a limitation over upon the marriage of the widow, aliter as to personalty.
    That upon the widow’s marriage the land descended to and became vested in the heirs at law qua heirs; as devisees they would only take upon the widow’s death.
   By the Court.

The auditor has by his report made a proper disposition of all the points in controversy in this case with a single exception. Thomas E. Fox, deceased, by his will directs all of his estate to be converted into money, and orders a house to be purchased in Hummelstown, at a cost not exceeding eight hundred dollars, for the use and benefit of his wife and children, “ during the period she remains my widow, and after her death the same shall descend to my heirs according to law.” Does this give to the widow an estate for life, or during widowhood only? The devise is in nowise qualified by any other expressions in the will, except in the seventh clause, where the testator, after directing the interest of one-third of his estate to be paid annually to his wife during her life, and the principal on her death to descend to his heirs according to law, says, “ Such life-estate in the said house directed to be purchased, and the annual interest aforesaid to be in lieu of dower.” Does this qualify the previous devise during widowhood, and convert it into an absolute life-estate ? If it does the auditor is right; if not, he has fallen into an error. In construing wills it is our duty to give effect to all the words, without rejecting or controlling any of them, if it can be done by .a reasonable construction, not inconsistent with the manifest intent of the testator,r and every portion of the instrument must be made to have its just operation, unless there arise some invincible repugnance, and every expressed intention of the testator must be carried out where it can be. If possible some effect shall be given to each distinct provision of the will, rather than it shall be annihilated, and the plain and unambiguous words of the will must prevail, and are not to be controverted by any conjecture or doubtful construction, growing out of the situation or condition of the testator, his family, or property (Redfield on Wills, rules 12,14, 16, 17 and 19, p. 430 to 435). And a clearly expressed intention in one portion of the will is not to yield to a doubtful construction in any other portion of the instrument (Redfield, p. 434).

Applying these rules to the will of Mr. Fox, and giving every expression and devise its due weight, what estate did his widow take in the house? Unless we reject the expression “during the period she remains my widow,” and substitute therefor “ during her natural life,” there can be no doubt that she took an estate during widowhood only, as at first directed in the will, and the rule which declares “ that a clearly expressed intention in one portion shall not yield to a doubtful construction in another portion of the same instrument,” prevents our changing the character of this- devise by the allusion to the life-estate previously granted. It was not necessary to qualify that part of the gift by again repeating “ during the period she remains my widow,” or during widowhood. The character of the devise had been explained before, and could not be misunderstood; it did not need repetition. The last will must always prevail, and even the last clause in the same will, but that rule is never resorted to except where the clauses are clearly irreconcilable. In the absence of clear contradiction, every clause and sentence must have its full force. It is said, however, that as there is no limitation of this estate over to any other person, on the woman ceasing to be the testator’s widow, but only on her death, it must be considered to be held out in terrorem merely, and not as creating an estate clurante viduitate. It must be borne in mind that this is a devise of land, and not a bequest of personal property. Had it been the latter a limitation over is indispensable, but is never required to make good a devise, or even a charge on real estate (1 Roper on Legacies, 511; 3 Atk. 330; 1 Atk. 361; 5 Vin. Abt. 343, pi. 41; 3 Ves. Jr. 89; 2 Dick. 719; 2 Atk. 590; Co. Lit. 206; Jarman on Wills, vol. 1, p. 698 [836]; 1 Story’s Eq. Jur. § 288).

Although in our State almost every question continued to be agitated from time to time, and is considered open, yet if any one is settled, it is, that a devise during widowhood is valid without any limitation over, whilst a similar bequest of personalty, not charged on land, is void without a limitation over on the widow marrying (Bennett v. Robinson, 10 Watts, 348; Hoopes v. Dundass, 10 Barr, 75; Commonwealth v. Stauffer, Idem, 350; McCullough’s Appeal, 2 Jones, 197; Cornell v. Lovett’s Exrs., 11 Casey, 100). The history of this distinction between bequests of personal property and devises of real estate is given in numerous cases, such as Starkpole v. Bramont (3 Ves. 2, 96), and in our own books also, and is shown to have originated in the ecclesiastical courts blindly following the letter of the civil law, without consulting its reason or history, in distributing personal effects, or applying bequests thereof, which the courts of law afterwards followed in order to prevent a clashing of jurisdiction, whilst devises of real estate were always governed by the rules of the common law, which never held that a condition of remaining a widow was inserted merely in terrorem, but was a valid and binding condition on which the party held the estate, which immediately terminated and descended to the heirs-at-law on the widow ceasing to answer the description, or violating the condition of the devise. The courts of law and equity have been struggling for many years to escape from the rule which requires a limitation over in order to render the condition valid, and recently we have a case where the Chancellor declares that “the law recognizes that species of interest in the widowhood of a wife as makes it lawful for the husband to restrain a second marriage, but not so as to any other woman” (10 Law & Eq. R. 139, 143; Lloyd v. Lloyd). This might account for the decision in Hoopes v. Dundass (10 Barr, 75), as that was a bequest to a daughter-in-law. The judge does not, however, take that distinction in his opinion, but decides the case on the doctrine then settled in England. This devise can scarcely turn on condition precedent, or suDsequent, but is a gift to the wife “ during the period she remains my widow,” the same in effect as “ so long as she remains my widow;” on marrying again she ceases to answer the description of the person who can hold the property, and the estate immediately descends to the heirs-at-law. The auditor says that the gift over cannot take effect until after the widow’s death, which sIioavs that the intention was to give her an estate for life — it cannot be in abeyance. That is true; the devisees over cannot take wider the will until the event happens. But it so chances in the present case that the same persons are heirs-at-law; they therefore take immediately by descent, and not by purchase. Had the devisees over been strangers to the blood of the testator, they could not have taken until Mrs. Fox’s death; but in the meantime the property AAmuld have descended to the heirs-at-law, who would have held, as such, until the event happened. She could not hold after she ceased to answer the description of the devise. She forfeited the estate by marrying, and ceasing to be the widow of the testator, and this forfeiture of interest is fully recognized and held valid for the reasons given by Ch. J. Gibson, in Commonwealth v. Stauffer, and McCullough’s Appeal, already cited.

I am therefore of the opinion that the wards of John M. Fox were, on the marriage of their mother, entitled to the immediate possession of the house and lot in Hummelstown, as heirs-at-law of Thomas E. Fox, deceased,- and that it was the duty of then-guardian, John M. Fox, to have taken immediate measures to recover the same for their use, or to have obliged their mother to pay a reasonable rent for the enjoyment of the property.

This by possibility may not be the same sum that would be exacted from a stranger, provided the children lived Avith her on the premises after her marriage, as the house and lot, when purchased, are to be for the use of the children as well as of the wife during her widowhood. If they lived on the property with and Avere maintained by the mother, that might lessen the value of the rent, as they had a right to remain in the house. If they paid to their mother full boarding-, the same as if they had no interest in the house, she should be charged full rent. The sum must be fixed and ascertained by the auditor on the evidence which will be adduced before him. We refer the case to the same auditor to correct the report on the point indicated. All other exceptions are overruled.


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      Orphans’ Court, Dauphin County,

      December 22d, 1865.
    In the Matter of Haines’s Estate.
    Two administrators can only demand the compensation that would have been paid to one, for although they may be involved in more trouble, yet the estate is not settled any better or quicker by two than by one.
    They will not be allowed commissions for collection of debts due by themselves to the intestate.
   By the Court.

Although disposed to place great confidence in the judgment of the auditor in the present case and defer to his opinion, yet after a full and careful examination of the account, I am obliged to come to a different conclusion in regard to the administrators’ compensation.

There are two persons engaged in the business, yet they must receive no greater allowance than if it had been performed by one only. They may have had much more trouble and incurred greater expense than one intelligent business man would, yet the estate will be no better or more safely settled. Many journeys to Sunbury and Bloomfield may have been made, yet if-they were measurably unnecessary the estate should not pay the expense. This decedent was comparatively wealthy and had no descendants to inherit his property* yet no greater allowance can be made to the administrators than would have been had he left a dozen children, or his estate proved insufficient to pay his debts. In fact the risk and responsibility would have been much greater in the latter instance than in the one under consideration. Had all of the debts due to the decedent been collected and paid over the charge would not have been so much out of the way, but as the business now stands, either another account will have to be settled by the present administrators or a new one raised for the purpose. In either case additional compensation can be claimed, and must be allowed.

A bare percentage, such as is ordinarily awarded for settling an estate if computed on the money received and paid over, may be insufficient • in the present case, as trouble was incurred and some litigation transpired, yet the most of the claims were large, and their collection, if we may judge from the sums paid to counsel, collected through their instrumentality. Four thousand seven hundred and fifty dollars were debts due by the administrators, on which no percentage can be allowed. Nearly fifteen thousand four hundred dollars consists of claims against insolvent debtors, or of debts remaining uncollected. The whole debit side of the account amounts to $33,240.89, and $20,146.55 is composed of the administrators’ debts or uncollected claims, leaving $13,094.34 to pass through their hands, including their own compensation, and $400 of attorney’s fees. They claim to have made many trips to Northumberland county to attend to lawsuits, most of which must have been unnecessary and would not have been taken by men who understood business, yet it was not very expensive, as it Avas not over two hours’ ride in the cars from where they lived, and most certainly it was unnecessary for more than one to go on any occasion.

They also speak of expenses in trying to learn the circumstances of Henry M. Baird, yet almost any public man in the county could have informed them with reasonable certainty, and if it Avas desirable to make further inquiry it could readily be done by letter, and probably was so done, as neither state that they visited either city or his residence to look into his affairs.

We find it difficult to understand how the reception of the coin could have thrown much burden upon the administrators, for if deposited in any bank in this place it would have been removed Avith its OAvn treasure to the city of New York, where all was sent at the time of the rebel invasion. We are not aware that any of those having special deposits Avere required to remove them, though it may have been demanded of persons who committed plate or valuable papers to the safe-keeping of the banks. A place of concealment of greater safety could readily have been found in the neighborhood of the administrators rather than in any bank in the city of Philadelphia, had the rebel army prevailed in the battle of Gettysburg. No expense need have been incurred on account of the specie. It appears strange that so much serious litigation existed in Northumberland and Perry counties, where Ave find but five dollars paid to W. Packer, Avho, they say, attended to it in the former, and a like sum to Mr. Jun-kin, who conducted it in the latter county. Possibly the administrators transacted the business in person and thus saved attorney’s fees to the estate. A course must be adopted by the courts which will secure a fair remuneration to executors and administrators, but we must not permit estates to be plundered, nor can the same alloAvance be made for services but half rendered, which should be for those fully performed. Administrators cannot be paid for leaving debts uncollected. We are inclined to think that one thousand dollars would be a full remuneration for settling this estate so far as it has been done by these administrators, yet lest by any possibility they shall not be thereby fully compensated Ave will reduce their charge but five hundred and fifty dollars, thus allowing them eleven hundred for their services. With that correction the account will be confirmed.


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      Orphans’ Court, Dauphin County,

      October 16th, 1866.
    In the Matter of Shelly’s Estate.
    The only ground on which a son can recover wages from his father for services rendered, even though they are rendered after he has attained his majority, is by proving a contract by his father, to pay either a stipulated sum, -or as much as they were 'reasonably worth, and the rendition of the services in compliance with the bargain.
    Evidence of loose declarations of the father showing an intention to compensate, are insufficient to support such a claim.
   By the Court.

The only point worthy of consideration in the auditor’s report, arises out of the claims for wages made by Wendel and David M. Shelly, sons of the decedent. All other questions are correctly ruled.

That a son continuing with and laboring for a father after attaining his majority cannot recover wages as a hireling, without clear and definite proof of contract for payment, is too well settled in this State to admit of a doubt at the present time. Mere loose expressions of the father of an intention to pay for the services without distinct admissions of a contract, are insufficient. The price to be paid should probably be proved, or clear declarations that a contract was made to pay so much as the services were reasonably worth. It should be established by evidence of a bargain between the parties, or a request by the father to work, with a promise to pay therefor made to the son, or to another to be communicated to him, followed by proof of the services rendered in compliance with and on the faith of the contract, and of the value of such services. If made in expectation of a legacy, or under an understanding that they will be remunerated by provisions in a will of the decedent, it would be insufficient. To apply these rules to the evidence in this case. The testimony of Peter Jones is entirely insufficient. He fails to prove any contract between the parties, or even admissions of the deceased from which one could be inferred. It at most proves the expression of an intention to compensate, not that he had bargained so to do. The evidence of David M. Shelly is very strong, and from it a jury or the auditor might have inferred a contract. Either might decline to draw such inference, as the bargain was incomplete, no sum being agreed on, and it appearing possible, and perhaps probable, that the parties contemplated remuneration by a testamentary disposition. Under these circumstances had a verdict been rendered by a jury in favor of the estate, I would not have felt myself called onto set it aside; and the same rule applies in all of its force to the finding of an auditor, who is for the most part much more competent to judge, being better acquainted with business, and the rules for weighing evidence, than a jury. Besides, he must judge of the credibility of the witnesses, and although not legally incompetent, it might well be inferred that these two brothers were mutally interested to testify for each other. On the whole we do not see sufficient reason for setting aside the report of the auditor, and therefore overrule all of the exceptions.


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      Orphans’ Court, Dauphin County,

      November 29th, 1864.
    In the Matter of Hawkins’s Estate.
    A testator devised the occupancy of his real estate to his widow during life or widowhood, and upon her death or marriage, to his adopted daughter. The widow refused to take under the will, and claimed her dower. The land was sold for the payment of, debts. Held, that she was only entitled to her dower in the proceeds, and the balance of the interest must accumulate during her life or widowhood for the daughter.
   By the Court.

Sarah Hawkins, widow of Richard Hawkins, deceased, presented her petition asking to have certain money in the hands of her late husband’s administrator paid over to her, to be held during the term of her life, and after her death to go to Mary Pennsylvania Hawkins.

Richard Hawkins, who had no heirs or known kindred, made his will devising the occupancy of the real estate, out of which the money in the hands of his administrator arose, to his wife during life or widowhood, and on her death or marriage, to his adopted daughter, Mary P. Hawkins. The widow renounced her claims under the will by writing filed, and elected to take her dower at common law, and also to receive three hundred dollars out of the estate of the decedent. She now contends to have the use of the money arising from the sale of the real estate for the term of her life, under the supposition that the adopted daughter cannot take under the will until her own death or marriage. The house and lot devised were sold under an order of court for the payment of debts, and the money arising therefrom must now take the same course that the real estate would have taken. The will is unquestionably good, as the use and occupation devised to the widow for life or widowhood is equivalent to the grant of an estate for that period, and is sufficient to support the remainder in the adopted daughter. In fact her estate would have been good without any particular estate to support it as an executory devise. The widow declining to hold the particular estate under the will cannot affect the estate of the devisee. What estate then has Sarah Hawkins in this lot now, or in the money arising from its sale ? We answer, she is entitled to her dower at common law under the express provisions of the act of 1833 in regard to wills, to wit, to the use of one-third of the interest of the money arising from the sale of the real estate after the payment of debts. She is not entitled to the distribution share, or one-half or the whole under the intestate laws, for this was a case of testacy. Such is the decision of the Supreme Court, in Hinnershitz v. Bernhard’s Executor (1 H. 518), reaffirmed in Paul’s Executors v. Paul (12 Casey, 280).

It is asked, what is to become of the residue of the estate during the lifetime or widowhood of Sarah Hawkins? We answer, it is to accumulate for the use of Mary P. Hawkins, and she is to have the whole principal and interest on the death or marriage of Sarah' Hawkins. The principal of the whole, the interest, and principal of two-thirds, while Sarah is to take the interest of the one-third as her dower. It is, therefore, ordered that a decree be drawn to that effect.


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      Orphans’ Court, Dauphin County,

      December 22d, 1865.
    In the Matter of Geibler’s Estate.
    Tbe widow of a decedent is not one of the parties who can take his real estate under section 10 of the act of 22d of April, 1856, by paying more for it than its appraised value.
   By the Court.

Appraisement having been made of William H. Geibler’s real estate, and a rule granted upon his heirs to come in and take, or refuse at the valuation, and show cause why it should not be sold, his widow came forward and offered in writing to pay five dollars more than the appraisement, and asked to have the land awarded to her, under the 10th section of the act of April 22d, 1856. Can the court award her the land in fee? It is pretty clear that it could not be done prior to the passage of that act. The widow is one of the parties who can demand partition of the real estate of a decedent, but, as we conceive, it is intended as a means of obtaining her dower, which may be assigned to her by metes and bounds, or the value fixed in money, to be paid out of the land in the nature of a rent-charge. She is not one of those who may be called on to elect to take or refuse to take under the statute; that is confined to the heirs alone; she is nowhere enumerated as one to whom it is to be allotted, or referred to as one entitled to take; she may have her share set off by metes and bounds, if it can be done without prejudice; but in that she has only .an estate for life. The whole course of legislation looks to the widow receiving her dower in money from those who take the land, rather than the land itself. The Supreme Court decided in Painter v. Henderson (7 Barr, 50), that she was not an heir to whom the land could be awarded, nor can she be called upon to make an election. Thus the law stood prior to the act of 1856. Does the 10th section of that statute effect a change ? It provides in substance that in all cases of partition of real estate in any court wherein a valuation shall have been made of the whole or any part thereof, the same shall be allotted to such one or more of the parties in interest, who shall at the return of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor, above the valuation returned; but if no higher price be offered, it shall be allotted or ordered to be sold as provided by law. This act applies to all cases of partition, whether in the Common Pleas or Orphans’ Court; it-contemplates an allotment to some one of those brought in by rule, who shall offer more for the property than the appraised value. We have already said that none other than the heirs can be ruled to come in and take or refuse to take at the valuation. The title is to pass by allotment; is not given over to any person who will offer the highest price, but that offer must come from one of the persons to whom the land could be allotted under former laws. It is spoken of as a well-known method of distributing property, and only changes the law so far as to give it to the highest bidder, instead of disposing of it according to seniority and sex, as provided in the 37th section of the act of 29th of March, 1832. True, the widow has an interest in the value, so far as it tends to increase her dower issuing out of the land, and the act speaks of any party in interest bidding; but still it must be one of those brought in by rule, of course an heir. Where valuations are grossly erroneous, it might be well to provide a mode of the widow raising the price by an offer, as well as the heirs, but the evil of deficient valuations has been so slight as to be scarcely appreciable, and never to have called for a correction by statute as among the heirs, for probably one hundred and. fifty years, during which our present system has been in force. Possibly under this act the interest of the widow might be protected by permitting her to show by bid that the estate was .of greater value; but we think that it cannot be done by allotting to her the land in fee, when she is entitled to only a life estate in one-third or one-half part thereof. We must decline awarding this land to the widow; she must take her dower or come in like other purchasers, if none of the heirs will take it at the valuation.


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      Orphans’ Court, Dauphin County,

      April 9th, 1866.
    In the Matter of Hawkins’s Estate.
    A testator devised the occupancy of his real estate to his widow during life or widowhood, and upon her death or marriage, to his adopted daughter in fee. The widow refused to take under the will, and claimed her dower. The land was sold for the payment of debts.

      Held, That upon, the refusal of the widow to take, and demanding her dower, the balance of the interest of the fund, after paying to the widow her third, must be given to the daughter.
    Hawkins’s Estate, 1 Pearson, 444, qualified.
   By the Court.

On the 28th day of November, 1864, a decree of this court was made disposing of the money belonging to the estate of Bi chard Hawkins, deceased, which is to be treated as land, being the proceeds of a sale of his real property left after paying debts.

Immediately after the decree, an application was made for a rehearing, since which the case has been twice argued. After the most careful consideration, I am satisfied that there is an error in the order disposing of the property. That mistake of the court we believe can lawfully be corrected by ourselves, by opening the decree, and making a new one in conformity with our present opinion of the law of the case.

There is clearly no error in that portion of the opinion assigning dower to Sarah Hawkins, and fixing the amount thereof, but it is contended that Sarah, as widow of Bichard, is entitled to receive the residue of the fund during her lifetime or widowhood, under the 10th section of the act of April 8th, 1833, relating to intestates. That so far as relates to this portion of the estate, her husband died intestate, as Mary P. Hawkins, the adopted daughter, cannot take until the event named in the will transpires. Tt was most clearly not the intention of Bichard Plawkins to die intestate as to any portion of the estate; he disposed of the whole of it by will. Mary P. Hawkins must still claim through that will, and we cannot countenance the widow in claiming under the intestate laws merely to avoid the provision against a second marriage. She has a right to refuse to take under the will, and claim her distributive share under the intestate law, given in lieu of dower, but then she cannot against the plain provisions of the will, claim the residue as an intestacy. It is claiming an inconsistent right; she may repudiate her rights under the will, but that will not destroy the instrument so as to bring it within the intestate law. We still think as before, that the widow obtained all by our decree to which she was entitled. There is, in our opinion, an error in ordering the share given to Mary P. Hawkins to accumulate in the hands of her guardian.

We could, with equal propriety, have ordered it to be paid to her presently. The accumulation is for her own benefit, and there is no other person entitled to take. It, therefore, does not come within' the principle of Knepley’s Appeal (5 H. 19), by which we were governed in making the decree. Manifestly Richard Hawkins intended to dispose of his whole estate between his widow and adopted daughter; they were the sole objects of his bounty. He suspended the gift in fee to his daughter in order to enable the widow to enjoy during life, or widowhood; she declined to take the gift under the will — renounced. What then is to hinder the daughter from taking immediately ? There is no other person interested. The estate cannot lapse through the action of the widow. The fund is to go to the two, and as the one refuses to receive, the other should enjoy it at once. This will best effectuate the intention of the testator, which should always be the guide in construing wills, or disposing of property under them. We have warrant for such a course in Brown and Sterrett’s Appeal (3 Casey, 62). It is true there was a constructive trustee raised by law on the widow renouncing; there was none appointed by the will, but the executor was directed to sell on her death and divide the proceeds among the children. On her renunciation, says the learned judge, the less estate given to the widow merged in the greater one given to the executor, and he was enabled to sell presently — was not obliged to wait for the widow’s death. It is true we have no trustee here to support the remainder and receive the estate on the tenant for life declining to take, but we have the vested remainder in fee in the daughter, who is only postponed in the enjoyment for the benefit of the widow; she declining the benefit, there is no other interest in the way of the heir in fee taking at once; the interest for life in the widow merged in the greater estate of the daughter. It is true certain events were to transpire before the estate descended, but the immediate, descent was postponed in favor of one-who declines the benefit; it then goes to the devisee over presently. Mary P. Hawkins is entitled to receive her estate now, there is no other interest in her way, and we must award it to her.

An order must therefore be made rescinding so much of the former decree as required the fund to accumulate until the death or marriage of Sarah Hawkins, and the same must be paid into the hands of the guardian of Mary P. Hawkins for her present use, to be expended as other money in the hands of a guardian for the use of the ward.


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      Orphans’ Court, Dauphin County,

      September 1st, 1868.
    In the Matter of Fox’s Estate.
    An. executor cannot buy any portion of the estate of his decedent, whether real or personal, either directly or through another person. The sale can be set aside on the petition of any person interested in the estate: it need not be on a review of the executor’s account.
   By the Court.

Grafton Fox, a son and devisee of James Fox, deceased, presented his petition, through his guardian, to the Orphans’ Court, setting forth in substance that Richard Fox, executor of James Fox, deceased, had sold the. stock of the Mechanics’ Bank, bequeathed to the said Grafton, and had purchased the „ same for his own use through the instrumentality of Jacob Shope, who bid in the same for him, the said executor. And further stating that there was a large surplus fund to which the stock was entitled, and large dividends made thereon, which have never been accounted for by the executor.

To this the executor has responded, not denying the sale and the manner in which the sale Avas made, as stated in the petition, but averring that it Avas sold for its full value, the proceeds brought into his account, and the whole balance due to Grafton Fox paid over to his guardian. That a second account was settled in 1865, and that balance paid to the guardian, who noAV petitions, and his release taken. Also that no money has come +o his hands since, as the stock remains on hand, has not been sold at a profit, and the amount of the surplus fund in the bank is unknown. It is claimed that the guardian has mistaken his remedy, as the only mode of correction is by a review of the account. That an executor, administrator, guardian, or other trustee, cannot become a purchaser at his own sale, either directly in his OAvn name, or indirectly through the interposition of another, is a principle too well settled to admit of argument in the present day (7 W. & S. 152; 8 W. & S. 244; 3 Casey, 44; 2 Williams on Evidence, 843,1669), and cases there cited. And this applies equally to real estate and personal property (4 Philadelphia R. 378). One trustee or executor cannot purchase any portion of the trust-property from his co-executor or trustee, and such purchase enures to the benefit of the oestui que trust, and the purchasing trustee must account to him for the profits, where it is sold at an advance (1 Paige’s Ch., 393); such sales are void for Avant of parties, as the trustee cannot become both buyer and seller. The sale of this bank stock, if made to Jacob Shope for the use of Richard Fox, the executor, is a nullity, and may be avoided by any party in interest. The only question is as to the method of avoiding it.

The course pursued in the present case by the petitioner is said to be correct in Shuman’s Appeal (3 Casey, 64). But there the property had been resold by the trustee at a profit. Here it is still held; and whether actually worth more than the sum paid, or the dividends on the stock amount to more than the interest on the money, is uncertain.

We think it proper to have some of the facts ascertained before ordering an account. We will, therefore, refer the business to an auditor to report. 1. Whether the stock was purchased by Jacob Shope, for the use of Richard Fox, as stated in the petition? 2. Whether the actual value of the bank stock, taking into account the present undivided surplus, renders it of greater value than the sum at which it was bidden off? 3. Whether the dividends received by Richard Fox on the shares of stock to which Grafton Fox was entitled, after the payment of debts and specific legacies, amount to more than the interest receivable on the money paid over to his guardian for his use.

We say the “ actual value” of the stock, to distinguish from the market value. For if this stock sold for all it would have brought in the market at the time, yet the unknown surplus fund then existing, or since accumulated, would make it worth more, the executor must acconntj for it must be borne in mind that the policy of the law makes his purchase void, and he is not entitled to either the dividends or accumulating surplus. But equity will relieve him, if it can be shown that his cestui que use received all in the form of cash or interest that he could have obtained out of the stock. On the coming in of the report, we can decree an account, or dismiss the petition according to the facts.


text:
      Orphans’ Court, Dauphin County,

      October 29th, 1866.
    In the Matter of Geiger’s Estate.
    A testator in Ms will directed a certain sum of money to be invested in stocks or real estate, the dividends, rents or profits of whieh were to be used in the support and education of his nephew until he attained the age of twenty-one, and then the stocks, money or land to be given to him or his heirs. The nephew died before attaining the age of twenty-one. Held, That this was a vested legacy, and upon the death of the devisee went to his legal representatives, and not to the residuary legatees of the testator.
   By the Court.

Two of the residuary legatees of George Geiger’s will have petitioned the Orphans’ Court to have paid over to them a portion of the bequest of one thousand dollars given for the use of George Geiger, Jr., for life, averring that the devisee died before attaining the age of twenty-one, by which his interest therein ceased. The mother of George Geiger, Jr., conceding that her son died in the manner and at the age stated in the petition, claims the money as his sole legal representative, contending that the legacy was vested in him. That portion of the will of George Geiger the elder, under which the question arises is in these words: “Item. I direct my executors to invest in stocks or in the purchase of good real estate in the county, the sum of one thousand dollars, the dividends, rents, or profits of which to be applied to the support and education of my nephew, George Geiger, son of Hiram Geiger, deceased, until he attains the age of twenty-one years, and in case he live to attain that age, I give the said stock, money, or land to him and his heirs.” Is this legacy vested or contingent under all the words of the will, the legatee having died in his minority ? It is a settled rule that when the time is annexed to the legacy and not to the payment of it, and the legatee die before the day of payment, it is lapsed — was contingent, and the contingency on which it was given never happened. If there be a previous gift of the legacy and the day of payment alone is postponed, it is vested. Where there is no other gift than by a direction to pay at a future time, or on a given event, or to transfer from and after a given event, the vesting will be postponed till after that time has arrived, or that event has happened, unless from particular circumstances a contrary intention is to be collected. The words “ when,” if,” “ in ease,” and similar expressions, have all been declared to be conditions. (1 Roper on Legacies, 383, 4 and 5; 2 Williams on Executors, fifth Am. edition, 1106, 7 and 8 ; Jarman lays down the same rules. See the condition “in case,” 3 Atk. 504.) If then there is no qualification in this bequest of the thousand dollars to George Geiger, except the gift thereof, “in case he lives to attain the age of twenty-one,” it is clearly conditional, depending on the happening of the contingency, and is not vested, he having died before that time. The respondent relies in the present case on the fact that the testator set apart this fund of one thousand dollars from his general estate, and directed it to be invested in stocks or land, and the dividends or rents to be applied to the support and education of his said nephew until he attained the age of twenty-one years; and it must be conceded to be a general principle that where a testator bequeaths a legacy to a person at a future time, and either gives him the immediate interest or directs it to be applied to his benefit, the court considers the disposition of the interest to be an indication of the testator’s intention that the legatee shall at all events have the principal, and on that ground holds the legacy to be vested. (See 2 Williams on Executors, 1109-10, and cases there cited; Fearne on Contingent Remainders, 553, Butler’s Notes; 1 Roper on Legacies, 337-8, et seq., and the cases there referred to; Jarman on Wills, 764 to 767, marginal paging; 2 Bro. C. C. 4; 2 Vent. 342; 3 Atk. 645.) This is indicated in many reported cases and by the best elementary writers as a general broad rule; yet we find it differently explained and certain exceptions stated by able English chancellors and some American judges. In Batsford v. Kebbel (3 Ves. Jr. 363), Lord Rosslyn takes the distinction between the gift of the corpus, taking it out of the residue, and a gift of the dividends only, the capital to be taken out at a future period, the dividends being a distinct legacy; and as there was no gift but in the direction to pay at a future period, which only attached on the party attaining a specified age, the legacy was contingent. This distinction has been followed in many other cases, and is adopted by Roper at 391-2; Williams on Executors, 1112-13-15, etc., and to some extent would seem to rule this case, as there is here a distinct gift of the dividends or rent for maintenance and education, and a separate direction to pay over the principal on the legatee attaining his majority, there being no other gift of the corpus except in the direction to pay. But the thousand dollars is to be severed and separated from the rest of the estate, and invested in stock or land, for the particular benefit of this legatee, he to receive the interest, etc., until twenty-one, for support and education, and on attaining that age, the principal, whether in stock or land, is given to him absolutely. There is no provision for the amount thus set apart reverting to the State in any event, nor is there any limitation over on the immediate object of^the testator’s bounty dying under twenty-one, and the books declare that there is no important distinction between a case where the corpus of the legacy is to be severed instanter from the general estate for the use and benefit of the legatee, and where it is to be severed only on the happening of the particular event. (Saunders v. Vanteer, 1 Cr. & Ph. 240; Greet v. Greet, 5 Beav. 123, 147, 156; Lister v. Brady, 1 Hare, 10; 9 Idem, 649; 9 Beav. 66.) The money, stock, or land, in the meantime remaining in the hands of the executors or under their control as trustees, can make no essential difference, for in very many of the reported cases the funds were so placed to be applied by them to the support of the legatee.

It is the policy of the law to treat legacies as vested rather than contingent; as a gift of the testator’s bounty to the immediate donee, rather than to some person more remote, or to a residuary legatee. This is declared in all of the books, and in none more emphatically than in the decisions of our own State. It is against public policy to tie up gifts of personal property with conditions, or to have the rights of the donee depend on remote or future contingencies. We are well aware that in declaring the present to be a vested legacy we in a measure disregard the language of the testator; but we are thereby quite as likely to effectuate his intention, and better conform, to the general rules of interpretation, than by deciding that it was contingent; and although severed from the general estate and set apart for the benefit of the legatee, that it again reverted, and went to the residuary legatees without any expressions or provisions in the will indicating such object. On the whole we are of the opinion that the residuary legatees of George Geiger, deceased, are not entitled as such to this legacy, but that the same was vested in George Geiger the younger, and must go to his legal representatives. The petition is therefore dismissed at the cost of the petitioners.

Fleming, for petitioner.

Alriehs, for respondent.

Aeeirmed by the Supreme Court (9 P. F. Smith, 70).


text:
      Court of Common Pleas, Lebanon County,

      April 23d, 1852.
    Rank et al. v. The Dauphin and Susquehanna Coal Company.
    When a person mortgages an imperfect title to real estate, and afterwards obtains a perfect one, that passes to his mortgagee.
    Where land is sold for taxes, and a bond without a warrant of attorney to confess judgment payable in two years is given for the surplus over the amount of the tax and costs, the tax title is void. This bond is also defective when it describes the property as “ a balance on unseated land sold as the property of 0.”
    The assessment of taxes on land in the name of two different persons will not vitiate the sale, when the tax was not paid in the name of either.
    Land may be sold for the unpaid taxes of a former year, although it had formerly been sold for those of a subsequent year, and the title of the purchaser at the latter sale would be good.
   By the Court.

The plaintiffs in this case have given in evidence a prima fade good title to the land in dispute. They would be entitled to recover it if there was nothing to gainsay or overturn their title.

They show an application made by William Stewart, Jr., for a warrant on the 7th of June, 1794, reciting a settlement made on 1st March, 1789 ; a warrant issued on the 18th of June, 1794; located by a survey on the 22d June, 1795; returned into the land office on the 10th of July of the same year; a deed from Stewart to James Wilson, dated May 11th, 1795; a judgment in the Circuit Court of the United States, against James Wilson’s administrators, on the 14th of April, 1800; a sale of this,tract by the marshal in February, 1838; deed to the plaintiffs on the 20th of June, 1838; and patent obtained by them on the 26th of August, 1850.

No question has been raised in the case as to the regularity of any of these proceedings.

The defendants show that on the 3d of April, 1794, an application was made for one hundred warrants, the leading one being in the name of Joseph Heister; warrants issued the same day; payment of the purchase-money for the whole by James Wilson; a survey made by Bar tram Galbraith on the twenty-seventh day of June, 1795, locating the warrant in this case, which is in the name of John Shaffer, and a return of that survey into the land office by Hollingsworth (a subsequent D. S. of the district, formerly filled by Galbraith), on the 9th of October, 1806. It is further shown that Judge Wilson, on the 5th of August, 1794, gave a mortgage, inter alia, of these hundred warrants to Wharton and others, furnishing and annexing a list of the warrants in various counties, and describing them as “ located or intended to be located .'' Also an article entered into between Judge Wilson and William Stewart, Jr., for the purchase of the land, on the 27th of December, 1794, and a certificate that the purchase-money was paid into the land office by Wilson for the William Stewart warrant on the_-day of --, 179-, which contract appears to have been consummated by deed, as shown by the plaintiffs.

A scire facias issued on the mortgage given by Wilson, against his administrator, and judgment obtained on two nihils, in the year 1802; a levari on the judgment, sale of the whole property mortgaged, and sheriff's deeds to John Morton, on the 16 th of January, 1803. Various conveyances were made of this land from time to time, until the title of the tract in dispute became vested in a Mr. Goddard, to whom a patent issued on the 23d of March, 1830. Numerous, or we might say rather innumerable, conveyances were made of this land from time to time; some of the deeds in trust and others for the use of the parties named, until the title became eventually vested in the Dauphin and Susquehanna Coal Company. These titles are not necessaiy for the elucidation of the legal questions in the> case.

There can be no doubt that the William Stewart warrant is the better title; neither it nor the Shaffer warrant is descriptive.

The Shaffer warrant is the elder, but the Stewart warrant is first located. Besides, B. Galbraith, who made the survey under the Shaffer warrant, was out of his district, in all probability, and his survey was not turned into the land office till 1806, a period of eleven years after it was made. The failure to make a return may not be imputable to Mr. Galbraith; he may never have been paid his fees. But if surveyed by an officer out of his proper district, it would be invalid until returned and accepted; from the great lapse oí time before the return of this survey, it would be postponed, especially in favor of an elder survey made by the proper officer. But this John Shaffer warrant was mortgaged by Wilson on the 5th of August, 1794, and if his title was then imperfect and was afterwards perfected, the better and more perfect title will enure to the use of the mortgagee. There is no principle better settled in equity than where a man sells an imperfect title and afterwards obtains a perfect one, it will enure to the use of his vendee. The same doctrine is applied to mortgagor and mortgagee, in Swinbourne v. Powel (2 Vern. p. 11; Crabb on Real Estate, 2 vol. pl. 2235; 9 Watts, 517), and the doctrine being consistent with fair dealing and common honesty, should be liberally extended.

' At the time of giving the mortgage the title was imperfect, the warrant was not located, and although there was not so perfect a description of the land as would amount to notice to others, yet it is fair to presume that the owner understood where he intended to locate his warrant, and mortgaged that territory. When the location took place the mortgage attached to that spot, and when he contracted for the elder and better title of Stewart (which, it is conceded and agreed, covers precisely the same ground), the purchase enured to the use of the mortgagee. From the plaintiff’s evidence, that title commenced by a settlement made in 1789, and by that the location was fixed independent of the survey, so that all the right to the Shaffer Avarrant as afterwards located, and all the rights of William SteAvart, as evidenced by warrant, survey, and settlement, were secured to Wharton and others by their mortgage, which right vested long before the judgment under which the plaintiff’s claim was obtained, and nearly six years before Wilson’s death, when the lien of his general creditors commenced.

The rights of the creditors, therefore, did not intervene before the interest of the mortgagees had attached, and it matters not who caused the Shaffer survey to be returned, as the rights of the mortgagee attached to the territory surveyed under the warrant the moment it was made, and to all the other titles held by Wilson to that land; nor is it of the slightest importance in the present case, whether Galbraith Avas within or out of his district when he made the survey; whether he was on the land or not, or whether that title is valid or invalid, as it is conceded that the William Stewart title was good in 1795, and that it belonged to Wilson, and from what we have already stated, Avas bound by his mortgage. The sale under that mortgage, in 1803, vested the whole right of James Wilson to this land in the purchaser as fully as he held it by both titles; and when the sale was made by the marshal of the United States, in 1838, Wilson had nothing to sell, and the purchasers took nothing. This independent of the great length of time between the obtaining of the judgment in 1800 and the sale in 1838. From the whole evidence in the case we are, therefore, of opinion that the defendant’s title is good and valid, and the plaintiff’s void. We are also of opinion that the act of Joseph Heister in entering a caveat and again withdrawing it, is of no importance in the case; there is no evidence that he had a shadow of title to this land at the time, but from aught that appears, it was an unauthorized interference on his part; his examination of the land by a surveyor in 1828 or 1829, is accounted for by his purchase in 1827, down to which time he does not appear to have had a shadow of title.

Thus far these contending claims were examined in'1840, when the title was before the Supreme Court; we are bound by that decision. Let us next examine the titles which have been acquired since. ■

In 1842, a tract of land, said to be the one in dispute, was regularly taxed in the name of Alexander Osborn & Co. The taxes amount to $8.42£, and.the land was sold, as appears from the deed, on the 18th day of August, 1844, by PI. Carmony, treasurer, for the sum of $16.50, and purchased by Peter Nank, to whom a deed was made on the 9th day of January, 1845.

The taxes appear on the treasurer’s sale-book to amount to $12.00-|-, which from the place, and under the heading where we find it, seems to have been set down at that sum by the treasurer, though the commissioners’ cleric thinlcs it was done in the commissioners’ office before it went into his hands. It also appears that on a loose sheet, attached to the same book by wafers, the tax is set down as $12.63; which leaf the clerk thinks was also attached before the book went into the hands of the treasurer. Upon a careful examination it does not appear that this tract was taxed at all in the name of Alexander Osborn for the year 1843, either by the proper officers, the assessors, or by the commissioners, unless the increased tax from $8.43£ to 12.00J or 12.63 can be so called; but there is nothing whatsoever which shows the increase to have been made on account of the taxes of 1843. The entry of $12.00J appears to us to be made by or for the treasurer, and merely connected with his sale, and not with any assessment; and the other sheet to have been made out in 1846, as a tax and sale list of that year, as it has in regular columns the taxes of 1842, ’3, ’4, and ’5, entered on it, and the sales of 1846, all of which entries appear to have been made at the same time, with the same pen and ink; and the name of Alexander Osborn & Co., $12.63, appears to have been added afterwards. Of these facts, however, you are the sole and proper judges. They are unimportant so far as regards the validity of the plaintiff’s tax title, but are important in relation to that of the defendant’s, to which we will call your attention hereafter. Whore any tax is regularly assessed and unpaid, the officer has authority to sell. The taxes of 1842 appear to have been regularly assessed, and the only importance of the entry spoken of in the sale book of $l'2.00] is to show that the surplus bond was given for the right amount. If the tax was marked upon the treasurer’s book, whether erroneously or otherwise, and the purchaser gave his bond for the surplus money apparently due, the sale is valid, notwithstanding the sum is wrong, and the bond given for too little. The surplus bond for $1.75 penalty, real debt 87], is in evidence. This appears to be for the right sum, computing the taxes at $12.00], and the costs at $3.62], but is in reality for 25 cents too much, as the legal costs are $3.87]. The error is corrected by an entry on the back of the bond, and is not one of which the real owner can complain if uncorrected.

A bond for the surplus money is decided to be necessary to the validity of the title, and that bond must be in a proper form. The deed and bond in the present case greatly vary from the form generally used, yet the deed, although informal, is good and sufficient to pass the title, if the bond is regular. This bond entirely deviates from those usually given, and does not conform to the act of Assembly. It is drawn payable two years after date, and does not contain a warrant of attorney to enter judgment.

By the 2d section of the act of 3d April, 1804, the sheriff or coroner (then authorized to make sales), is required to take from the purchaser or purchasers bonds in his own name, with warrants of attorney annexed, for any surplus money that may remain after satisfying and paying the taxes and costs aforesaid, and the same bonds forthwith to file in the office of the prothonotary of the proper countyand by the 4th section of the same act it is declared that the bonds so taken and filed shall, from the date of the deed by him executed, bind as effectually, and in like manner as judgments, the land sold, into whosesoever hands the same may come, and the owners of said lands at the time of sale, or their heirs, etc., may, at any time within five years after such sale, cause actions to be entered upon the docket of the prothonotary in the name of the officer for the use of the owner, and if the money mentioned or contained in such bond, together with legal interest from the time it is demanded, be not paid within three months after such entry, execution shall forthwith issue, etc.” The duty of taking these bonds is afterwards imposed on another officer, the treasurer, who makes the.sale, but the form is in no wise changed. This act contemplated that the owner should have it in his power at any time after his property was sold to enter up the bond. He had a right to demand the money as soon as the bond was given, and it would bear interest from that time. He was not put to the delay and expense of a suit, but could at once have it entered as a judgment by virtue of the power of attorney.

Of both of these privileges he is deprived by the form of the present bond; he cannot demand it for two years from the time of the sale. If demanded, it wpuld not bear interest until due, and after the time of credit forced on him has expired, he has to bring suit for its recovery, instead of entering judgment and issuing an execution. A neglect to give a bond is the default of the purchaser ; a neglect to have it drawn in proper form is, in several reported cases, declared to be attributable to him also, whilst a mistake of the treasurer as to the amount of taxes and costs due, or a neglect to file the bond, is imputable to the officer. If the deed itself showed that the taxes and costs would, together with the bond, fall greatly short of the amount bidden for the land, it always has been attributed to the party, and vitiated the sale.

This is a statutory bond and must substantially conform to the statute; in both particulars named, it violates it in a manner injurious to the owner of the land, and highly beneficial and convenient to the party giving it; he is relieved of its payment for two years, and cannot have a judgment entered against him in a summary way, and the money immediately collected. We are, therefore, of opinion that the bond is void. This bond being for a small amount, does not vary the principle; the same rule must be applied to it as if it had been given for the full value of the land; in many counties in the western part of the State, lands have sold for higher prices at treasurers’, than at sheriffs’ sales, as there is more confidence reposed in those titles than any others, and it is by no means uncommon for the owner to demand the bond as soon as the deed is acknowledged. It is often the best sale he can make, and he is not required by law to wait for the two years given for redemption to expire. He may, in the language of the act, collect it at anytime. If the party and treasurer may, by blunder or contrivance, postpone the owner two years, they can ten. This being for the benefit and ease of the obligor, is presumed to be on his suggestion and request. In Sheerer’s Assignee v. Lautzenhizer (6 W. 543), where but twenty days over one year was given to assignees under a voluntary assignment to sell the estate and distribute the money, the assignment was held to be void; it did not pursue the statute. The courts have shown great reluctance to relieve obligors from statutory bonds which did not conform to the law prescribing them, yet in many cases they have been held void; but here the party giving the obligation claims a benefit under it, asks to create an estate in himself by reason of it, and that another person shall be forced to take an obligation not drawn according to law. Certainly no court will oblige him to do it; although the obligee might sustain an action on this bond, and the obligor be obliged to pay it, yet the law will not force such an obligation upon him, or oblige him to bring a suit when the law says he shall have the means of immediately entering judgment; nor will it oblige him to wait two years for his money without interest.

I have, in a practice of about thirty years, had occasion to examine several thousand tax sales, some in nearly every county in Western Pennsylvania, where those titles prevail to a greater extent than in any other part of the State, and never before saw a surplus bond without a warrant of attorney, or drawn payable at a future day.

Another objection is taken to this bond; that it does not sufficiently describe the property sold to enable it to be applied to the land in dispute.

In the treasurer’s deed, the land is described as “situated in East Hanover township, in the county of Lebanon, surveyed to Alexander Osborn & Co., containing 441 acres;” in the bond it is described as “ a balance on unseated land sold as the property of Alexander Osborn & Co.;” no further description is given, neither township nor number of acres. The deed recites the sale to have been made on the 18th day of August; this bond is dated on the 12th. The bond shows a surplus money of 87] cents, or probably in connection with the indorsement, 62] cents; the tax recited in the deed amounts to $8.42f, which with the costs, $3.87], would make $12.30]; the bond should, therefore, have been given for $3.19f- instead of 62] or 87] cents. We have already said that the variance in the amount being a mistake of the treasurer, as appears from his books, would not vitiate the sale, but where the description is loose, as in the present case, it tends to increase the difficulty of applying the bond to the sale of this tract, or making the lien thereon certain. Both the deed and bond are required by law to be entered in the prothonotary’s office, the one in short after the manner of sheriffs’ deeds, the other to be filed; by comparing the two together, a subsequent purchaser of the land can tell on what property the bond is a lien, which continues for five years. The variance between the date of the sale as stated in the deed, tends to increase the difficulty. We therefore consider it very questionable whether the description in this bond is sufficient to render it valid, and as the cause will go into the Supreme Court on other points, we declare that it is void for want of a proper description.

There is more in this case than in Bartholemew v. Leech (7 W. 471), where all description of the land was omitted; but in one particular there is less, as that bond was for the sum of money corresponding with the surplus stated in the deed. Yet that bond was held void, and the chief justice, in delivering the opinion, declares that the purchaser is bound to know the law of his title, and point out errors to the treasurer in the concoction of it. That the bond is drawn under the direction of the purchaser. The description is not so full as in Devor v. McClintock (9 W. & S. 80). That bond was “ conditioned to pay the surplus money arising from the sale of a tract of unseated land to the said John McClintock, situate in Rye township, in the county of Perry, containing twenty acres,” which was declared to be conveniently certain; in this bond we have neither the township nor number of acres, besides the variances in the amount and dates of the sale and bond. From the dates it appears that this bond was given six days before the sale of the land to which it is proposed to apply it, and although there may possibly be a mistake in the deed, yet that mistake nowhere appears of record.

Another objection is also raised to this sale. The defendants say that they filed a description of their land in the commissioners’ office, as required by the act of 1806; that the same was taxed regularly in their warrantee name for each and all the years when it was taxed to Alexander Osborn & Co.; that there was nothing in. the office to connect Alexander Osborn & Co. with this land, and the number of acres (441) was calculated to mislead them; that they could not suppose the land was doubly taxed in the name of Shaffer and that of Osborn. If they had shown that they had paid the taxes in the name of Shaffer, that would have been sufficient to discharge the territory assessed, it matters not in whose name; but as it is not pretended that they paid the taxes, the assessment in both names will not vitiate it. If Osborn was so connected with this tract as to enable the jury to identify it as the one in dispute, it matters not whether his title was good or bad, whether he had filed a description in the office or not; the act of Assembly declares that the sale shall vest in the purchaser all the estate and interest of the real owner in the land, whether taxed and sold in his name or otherwise. Here this case might be rested; as we have already decided the plaintiffs’ original title is overturned by that of the defendants, and that their treasurer’s deed is void and confers no right. Although the plaintiffs must recover on the strength of their own title, yet the defendants have asked us to express an opinion on the tax title which they have given in evidence; and to enable the cause to be reviewed on every point, we shall decide upon its validity. This tract was assessed in the name of John Shaffer for the taxes of 1842, ’43, ’44, and ’45, and sold by the treasurer of Lebanon county to Presley Blakiston in the year 1846. It is conceded that sale is regular in every particular, except a small error committed by the treasurer in taxing his cost, which we have already declared does not vitiate, as settled in Gibson v. Robbins (9 W. 156). But the taxes of 1842 were paid by the sale of Peter Rank in 1844, as his deed shows the sale to have been for the taxes of that year, and those of 1844 and 1845 were paid by the plaintiffs; the only unpaid assessment was that of 1843. There is nothing in the assessments, gale-book, or elsewhere, which shows that any portion of the taxes of 1843 was paid, nor is there any reason to believe or suppose that the increase from $8.42f to $12.00£ was on account of the taxes of that year. It contradicts the sum in the treasurer’s deed, and may have been a mistake of the treasurer in setting down the sum on his list, in making the sale to Rank. It may as well be treated as part of the taxes of 1841, or 1844, as of 1843; and if the taxes of .the latter year could have embraced but a portion of them, the valuation shows that the taxes must have amounted to a greater sum. The taxes of 1843 were, therefore, unpaid, and we have already decided that where any part of the taxes are regularly assessed and due, the sale is authorized.

Porter, Reynolds, and Weidman, for plaintiff.

Fisher, for defendant.

But it is contended that the sale of the plaintiffs, in 1844, divested the county of all claim for the taxes of 1843. If the county officers choose to make a sale of the land, they cannot afterwards claim to have a lien existing on the same premises.

As a general rule, it is entirely true, that if an individual sells his property, he discharges all liens against it, but it may well be questioned whether that rule applies to public officers acting for the county. It has been repeatedly decided that a mistake or neglect of duty by a State officer shall not prejudice the commonwealth. Why should it injure a county ? The owner has neglected to pay his taxes; the purchaser of 1844 has also failed to pay them; they have not gone into the county treasury from any source, and it may well be asked, why shall they not be collected?

By law, no sale can be made-for road taxes until one year after the return and filing of the transcript by the supervisors in the commissioners’ office) which very frequently is neglected at the proper time. There is often a failure to return the transcript of school taxes, so that the money may be collected at the biennial sales. Those taxes are carried forward against the land in succeeding years, yet are kept distinct on the commissioners’ books. I have known sales made frequently for those taxes at an after period, and am not prepared to say that these sales are irregular and void. If even the road tax is due, there is power to sell. We therefore declare the defendant’s deed good and valid. On the same principle it might be urged that the land could not after-wards be sold for tlie taxes of 1844, if the same had been neglected by the purchaser of that year. They were assessed in December, 1843, and were a lien in August, 1844. Yet in every part of the State sales are so made as often as the delinquency occurs.

Affirmed by the Supreme Court, July 25th, 1853. Not reported.


text:
      Court of Common Pleas, Lebanon County,

      January 2d, 1855.
    Ramler v. Brotherline.
    An award of arbitrators for a certain sum of money “ in furniture” is void for uncertainty, and will not support an execution. The court has no power to treat the words “in furniture” as surplusage, and correct the award by striking them out.
   By the Court.

The defendant has filed exceptions to the award rendered by the arbitrators in this case, averring that it is insufficient to support an execution for money, and that the fi. fa. is not authorized by law. The award being for $176.26 “in furniture” (see declaration filed) will certainly not justify the writ in its present form; and no execution can issue for furniture. The only question is, can the court mould the finding into form, by directing a judgment to be entered for money, treating so much as relates to the furniture as surplusage, and after so modifying the award, directing an execution to issue. After the most careful examination of the subject, I am of the opinion that such a course would be taking an unwarrantable liberty with the report of the arbitrators. The award becomes a judgment at the expiration of twenty days without any action of the court, and must be in such form as to constitute a valid judgment, which will sustain an execution. Were we to decide that the words “in furniture” are mere surplusage, it might defeat the intention of the arbitrators entirely, Avho perhaps would have found for the other party, had they known that their decision, as given, could not be carried into effect. The narr avers a contract “to take cabinet-ware, furniture, chairs, etc.,” for certain boarding, and that the articles were to be delivered wh en demanded. A special demand is laid, which, if proved, would have called on the arbitrators to have rendered an award for money; and, if not proved, they should have found in favor of the defendant ; so that in any event the finding is wrong. I am unable to imagine any state of facts which could justify this award. To render the award valid, it must be certain and final. The present is not the end, but the commencement of difficulties. Who can say what furniture is to be taken and given, or at what price ? We cannot determine wh ether it is to consist of carpets for the floors, curtains for the windows, beds, bedding, cooking utensils, or cabinetiware; and there is no one designated to fix'the price. In Henness v. Meyer (4 Wh. 358), an award not more uncertain was reversed; and in that case the court refuses to treat the words, “ or the defendant to carry out and strictly fulfil his part of the contract ” as surplusage. The chief justice says: “ The alternative could not be rejected, because it must be taken for a substantial part of the finding. For who can say that a verdict would have been rendered against the defendant without it?” A similar principle is determined in the case of a verdict in Bagley v. Wallace (16 S. & R. 245). In Allen v. Flock (2 Penna. 149), the court declares that the plaintiff; having taken the verdict rendering costs in favor of the defendant, cannot treat that portion as surplusage without reversing it, but must carry it into full effect, and accept the finding in his favor without costs. In Shoemaker v. Meyer (4 S. & R. 452), an award of money by instalments was decided to be bad. The court declares “that it would be taking an unwarrantable liberty with the award to treat that portion as surplusage; the manner of payment may have been substantial, and rejecting it might subvert the whole intention of the arbitrators.” We find the same general principles declared in Sicard v. Peterson (3 S. & R. 468, and 14 S. & R. 238). It is true that the later practice has been to treat any finding by a jury or arbitrators, which is in addition to the regular verdict or award, as surplusage, whenever it can be done consistently. Here we think it cannot be so treated, as the finding is not of so much money, payable in furniture, but of a numerical sum in furniture; there is no finding of money, but the amount is only named, apparently for the purpose of declaring the value of furniture to be delivered. We are of the opinion that the execution improperly issued for money on this award, and must be set aside at the plaintiff’s cost. The award is itself void for uncertainty, and is not final, and must also be set aside.

TJlrieh, for plaintiff.

Kline and Boughter, for defendant.

The costs attending the arbitration, including the rules, service, etc., must abide the event of the suit.


text:
      Court of Common Pleas, Lebanon County,

      January 10th, 1855.
    Cooper et al. v. Restenbalt.
    When a rule of reference was taken out, but the arbitrators were not chosen within the time in which judgment could be taken for want of a sufficient affidavit of defence, the court will strike off the rule to arbitrate, and direct a judgment to be entered.
   By the Court.

The record in this case presents the following state of facts: A suit was brought to November Term, 1854. A narr and copy of the claim were filed. By the 52drule of this court an affidavit of defence must be filed within thirty days after the return day, in which affidavit the nature and character of the defence must be set forth. A few days before the time had arrived when judgment would have been entered, the defendant by his counsel took out a rule of reference, and notified the prothonotary not to enter judgment for want of an affidavit of defence. On the same day that this notice was served, plaintiff’s attorney demanded judgment under the 52d rule of court, which was granted, entered, and a fi.fa. issued thereon. On the 21st, the defendant proceeded to choose arbitrators, in which the plaintiff did not participate ; and the latter now asks us to strike off the rule of reference, and suspend the action of the arbitrators. We are wrell satisfied that the present proceeding is in fraud of our rule of court. If sustained, the consequence must be a long delay in every case coming within the rule, which was adopted for the purpose of enabling a plaintiff to obtain his judgment speedily, where there is no substantial ground of defence. The defendant has only to wait till the day before the plaintiff would be entitled to judgment, then take out his rule of reference; the arbitrators need not be chosen for twenty-nine days, as the party taking out the rule fixes the time. The hearing would probably be fixed at nineteen days thereafter, and twenty days are given to enter the appeal. Thus the defendant obtains a delay of sixty-eight days. And when he brings the cause back by his appeal, no affidavit setting forth the special character of his defence need be filed, nor according to the case of Lusk v. Garrett (6 W. & S. 89), can judgment be taken for want thereof, but the general oath required on tire appeal is sufficient. At most, that oath cannot be treated as a nullity; but if the plaintiff has any remedy, it must be by moving the court in term time for judgment for want of a sufficient affidavit; and perhaps he would be obliged to take a rule upon the defendant to file an additional affidavit, setting forth the nature and character of his defence. This might be attended with a delay of several additional months. We consider this case ruled in principle by Hoffman v. Locke (7 H. 57). The only perceptible difference between that case and the one under consideration is, that there the court was moved for judgment, and here it was entered by the prothonotary; and there the judgment was demanded under an act of Assembly, and here under a rule of court.

We have no doubt of the power of the court to adopt rules of this character to regulate the practice of their suitors; and .if we possess the power to adopt them, we can prevent their evasion by any kind of artifice. Had the arbitrators been chosen in this case before the time for taking judgment, a greater difficulty would have been presented, as in that event the cause would have been out of court, which is not effected by the mere entry of a rule to arbitrate.

The prothonotary was right in entering judgment in this case for want of the affidavit of defence, as demanded by the plaintiff’s counsel. Therefore, we order and direct that the rule of reference be stricken off, it having been entered in a case in which no controversy is pending, and we order notice to be given to the arbitrators that their power to act is superseded.

Funeh, for plaintiff.

Kline and Weidman, for defendant.


author: By ti-ie Court.

text:
      Court of Common Pleas, Lebanon County,

      August, 22d, 1855.
    Bowman & Pflegor v. Bowman & Gingrich.
    When a judgment is given at the request of an attorney who was not at the time counsel for the plaintiff, if the latter afterwards wishes to take advantage of this judgment, he must observe the conditions which accompany it.
    The court will not regard the answer to an illegal leading question.
    When an agreement is made that executions shall issue on judgments in a particular order, and it has been complied with, that is no reason for setting aside the judgment.
   By ti-ie Court.

There is no ground whatever for setting aside the jndgments entered by defendants in this case, as justice can be fully done, and the contracts of the parties enforced by controlling the executions. It appears from the evidence that the judgments were entered on the earnest solicitation of Mr. Boughter, who was not at that time counsel for the plaintiffs. Some contract or promise was made at the time, which appears to have been the main inducement for entering into the arrangement. The precise nature of the bargain is not so readily determined. The parties appear to have mainly directed their inquiries to a wrong object — whether Mr. Boughter was, or was not, plaintiff’s counsel ? That he was not so at first is very clear. That he became so afterwards is strongly to be inferred. The plaintiffs, by adopting his act, confirm his authority to do it; and a subsequent' ratification is equivalent to an original command. They must take the judgment subject to all the conditions under which it was given, or repudiate the act altogether. They cannot confirm it, and hold it good as a judgment, and disregard the conditions under which it was entered, whether that condition be in writing, or established by parol (8 "W. & S. 75). And the court can control an execution on a parol agreement (Ibidem). If the agreement was that there should be a cesset exeeutio, the creditor must give it. If that none should issue to interfere with others intended to be preferred, he must abstain accordingly. The difficulty is in collecting the contract from the evidence. In the original petition it is clearly stated that “ the judgments were not to be enforced, nor executions issued thereon, nor the effects of the said firm of Bowman & Gingrich, in any way made liable for the payment of the same, until the above enumerated judgments should be fully paid off and discharged.” Yet when the same party, who testifies to this fact, is afterwards examined as a witness, not one word is said by him about an agreement that no. execution was to issue; but he merely speaks of an agreement of quite a different character; namely, that certain judgments were to be preferred, and paid off before those were to be paid — a bargain which, if valid at all, and capable of being enforced, must be done by a totally different method, — by distributing the money when raised; it would give us no power to set aside the execution. Possibly the court might infer, from an answer to an illegal leading question put to this witness, that it was agreed at the time that no process should issue on these judgments, except as controlled by Messrs. Kline and Boughter, and not before the others were satisfied. Even that is not directly stated; but if sworn to most positively, I should entirely disregard it, as the «question was illegal, of the most leading character, objected to at the time, and should have been withdrawn. Tbe penalty a party pays for asking illegal questions, is to have the answers rejected. Therefore I shall disregard this answer. The witness’s further explanation shows that it was a preference in payment for which he stipulated, and not in the issuing of executions. Moses L. Bowman’s testimony is much more to the point. He states that the counsel were to issue executions, first on the judgments of Muth et al., then on Hoffman’s, then Moses Brenaman’s, then Bowman & Pflegor’s, then Meily’s.” Now if the executions have issued in this order, there is no violation of the contract, which comes within the rule to show cause, but the execution must proceed, and the parties raise tbe question either on the distribution of tbe money, or in their right to the claims attached. There is no doubt but that Messrs. Kline and Boughter can successfully interpose the agreement as a bar to the proceeding on the execution attachment, if the accounts were, by that agreement, vested in. them, for the use of tbe other creditors, in preference to Bowman & Pflegor.

It is not in the character of a general assignment in which no preferences can be given, but rather in the light of collateral security qflaced in the hands of counsel for the use of certain clients, and to be applied in a designated order. Their answer showing the facts will probably be a complete bar to the attachments; and the money, when raised by the sheriff, and collected by the attorneys, can all be brought into court for distribution. Tbe rule for setting aside the judgments, executions, and execution attachments, is discharged without prejudice to any of the parties, as all of the executions appear to have been issued precisely in the order agreed on when the judgments were entered; and no agreement has been proved that Bowman <& Pflegor should not issue execution attachments at an after time; but if the facts are as stated, they will probably take nothing in their writ.

Ulrich, for plaintiff.

IUline and Boughter, for defendant.


text:
      Court of Common Pleas, Lebanon County,

      August 22d, 1855.
    Norton & Co. v. Breitenbach.
    The court cannot examine a juror as to what took place in the jury room. Evidences to the comparison of handwriting cannot be received, but when not objected to at the time, its reception is not a ground fora new trial.
    The testimony of a witness as to a certain promissory note, though vague in not giving its date and form, should be considered by the jury, and an instruction to them not to consider it is error.
    A new trial will not be granted on the ground of after-discovered evidence, unless the party avers that he did not know of it at the time of the trial.
   By the Court.

There is no ground whatever for arresting the judgment in this case. No error is apparent on the record, the jury appears to have been properly sworn, and both counts of the narr are good. If the first one was not supported by the evidence, that should have been taken advantage of by raising the question at the trial.

Several reasons have been urged for a new trial. Evidence has been taken with a view of showing that the jury was in possession of papers improperly handed over, and not given in evidence ; but I am well satisfied that nothing went into the box but what passed through the hands of the court, and the complaint is not well founded. We have no right to' inquire into the deliberations of the jury, or to examine any member of that body in regard to the foundation of their finding. The evidence of the jurors is discarded from our consideration.

The failure of the plaintiff to prove a partnership between the defendants at the time the note was given has no effect on the merits of the case. If the note was given at all, it was by W. S. Breitenbach, who alone was sued and on trial, and against whom alone the verdict was rendered. The proof of the partnership under the circumstances was of little importance, and a new trial is never granted upon reasons purely technical.

The evidence from comparison of the handwriting with papers held by the witness, and not produced, should have been objected to at the time, and would have been rejected. Throughout the case a large portion of the testimony as introduced by both sides was to a great extent from mere comparison. This reason is insufficient, more especially in connection with the other ground argued, the rejection of the evidence of experts, who almost invariably speak from comparison, and whose depositions we still think were properly rejected.

We come now to a more important part of this case. Notice was given to plaintiff’s counsel to produce a certain note, held by him, purporting to have been drawn by the defendant for $1000. The note was not produced, but secondaiy evidence was received of such a note having been given.

The witness, Jones, who spoke of the note for $1000, did it in a vague and uncertain way, not definitely fixing its date or form; consequently the court instructed the jury to pay no regard to his testimony in that particular, as at most it went to prove the note in suit paid by Buckley to Norton, and in that event the latter would be entitled to recover for the use of the former. We are not satisfied with this part of the charge; but now consider that the jury should have been instructed that, if from the evidence of Jones, they were satisfied the note of $1000 was given by the same obligors in part payment of their former note, they should find for the plaintiff the sum of $500 with its interest, etc., and had such instruction been given, the jury might lawfully and probably would have found for the plaintiff the five hundred dollars only. Our conviction that such finding would have been lawful and proper is greatly strengthened by the production of the note for $1000, which we find drawn in the same form, payable in the same place, indorsed by the same parties, and disposed of in part payment of the former note. It is true that it bears date ten days after the other fell due, including the days of grace; which is a circumstance tending to show that it may not have been drawn as a renewal; but' on the other hand all the other connections of the'paper, including the declarations of Norton as proved by Jones, tend strongly to show that the obligors in the first note furnished the second to meet their obligation, in which case it would be an extinguishment pro tanto. We are well satisfied that business men, merchants, bankers, etc., would on the inspection of these papers and the circumstances proved by Jones, have considered the second note as a renewal of the first, without more evidence, and courts and juries should view the business transactions of society in the same general light that they are consiclered by those who conduct them, else we shall fail to reach the truth and honesty of transactions.

Weidman and Killinger for plaintiff.

Ulrich, for defendant.

Had this note been produced on the trial, we are satisfied that our own view of the subject would have been different, and the jury would have been instructed in such a way as to have had them to consider what now appears to us to be the law and merits of this case. We entirely throw out of view the statement of Mr. Iba in his deposition taken since the trial; as the defendants have not shown any reason why the witness was not questioned on the subject before. To make the evidence available to the defendants, it must appear that the facts came to their knowledge since the trial, which is not proved; and at most the evidence is merely cumulative, tending to prove in substance the same matters stated by Jones.

We are now convinced that there has been a mistrial of this cause on a most material point affecting the merits; and we therefore feel ourselves constrained to grant a new trial.

We are not prepared to say that the result will be different, but we consider the parties entitled to have an investigation by a second jury where all the evidence bearing on the case can be produced, and proper instruction given by the court thereon. Another circumstance -tending to lead us to this result is the mistake committed by Messrs. Weissly and Iba, two of the plaintiff’s witnesses, in regard to another note of $1500. That mistake may have had a material influence on the minds of the jurors, as it tended to prove dealings of a confidential character and to a large amount between the defendant’s firm and Buddy, whereas the dealings were in reality with Myers and Buddy. The defendant could not anticipate such a mistake on the part of the witnesses, and, therefore, could not be expected to come prepared with the note to meet it. On a second trial each party may be better prepared, and these mistakes avoided.

We forbear to give any opinion as to the weight of evidence in the case, as it might tend to prejudice the rights of one party or the other hereafter. Suffice it to say that we should not have granted a new trial on that point alone, after the facts had been passed on by the jury. The question was for them, and their action would not have been disturbed.by the court but for the other reasons given.

A new trial is awarded; the costs to abide the final result of the cause.