text:
    Townsend versus Long.
    1. Long sold his interest in a firm to his partner for §700, the partner to pay all the debts of the firm; the §700 being unpaid, the partner sold to Townsend, who, by parol, agreed to pay the amount clue Long as the consideration. Meld, that the promise was not within the Act of April 26th 1855, sect. 1 (Frauds), and Townsend was liable to Long on his promise.
    2. The general rule is that a parol promise to pay the debt of another is within the statute where it is collateral to a continued liability of the original debtor.
    - 3. If a parol promise be to pay absolutely or conditionally the debt of another, due or to become due on an existing contract, it is generally within the Statute of Frauds.
    4, The consideration for the promise is important only where it is a transfer of the creditor's claim to the promissor, making the transaction a purchase, or where it is a transfer of a fund pledged, set apart as held for the payment of the debt.
    November 16th, 1874.
    Before Agnew, O. J., Sharsavood, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1874, No.-54.
    George J. Long commenced an action of assumpsit, June 24th 1872, against John Townsend; the cause of action was on the following facts:—
    Prior to the 29th of January 1870, the plaintiff and Joseph B. Vance and Joseph Rankin Avere in partnership in the furniture business; on that day, by agreement in writing, the plaintiff sold to Vance and Rankin all his interest in the concern, including the book accounts, they to pay all the debts that had been contracted during the partnership, and also to pay the plaintiff $700, as folIoavs : $100 on the 1st of May 1870, and $600 in eighteen months from the date of the agreement. Vance and Rankin took possession in March 1870. Rankin went out of the business, leaving Vance the sole owner, with the understanding that Vance was to pay all the claims. In April or May Vance sold to the defendant, who took possession, the debt to plaintiff from Vance and Rankin being unpaid; defendant afterwards paid the $100 due on the 1st of May 1870.
    On the trial, January 27th 1874, before Acheson, P. J., Vance testified that the agreement of the sale to defendant was, that he was to take everything and pay all the debts of the concern. “ Long’s debt was spoken of — defendant agreed to pay it.” Plaintiff was not present at this agreement. Vance and Rankin never paid plaintiff anything on their agreement.
    Plaintiff testified himself, and called several other witnesses, who corroborated the testimony of Vance.
    The defendant testified that he never agreed to pay the plaintiff, nor to pay any of the debts of the firm; he testified further in direct contradiction of the evidence for the plaintiff; other witnesses corroborated his testimony.
    The following were points of the defendants with their answers:
    1. Unless they are satisfied, from the evidence, that the defendant undertook, at the time he entered into the contract with Vance, to pay the plaintiff’s claim, the plaintiff cannot recover, whatever may have been the consideration, the promise not being in writing.
    Answer: “ The jury must be satisfied that the defendant agreed to pay the plaintiff’s claim at the time of his contract with Vance, as stated in this point; but it is not necessary to plaintiff’s recovery that the promise should be in writing.”
    2. Even though the defendant, at the time of the contract with Vance, undertook and promised to pay the plaintiff’s claim, the plaintiff is, nevertheless, not entitled to recover, unless he (the plaintiff) was present, assenting to the arrangement and agreeing to accept the promise of the defendant as a substitute for that of Rankin and Vance.
    “ This is true.”
    The court charged:— * * *
    “ The plaintiff seeks to recover from the defendant the balance of his claim on the article with Rankin and Vance, on the ground that he (Townsend) in his contract with Vance assumed the payment of the plaintiff’s claim, and promised and agreed to pay the same to him. This is positively denied by the defendant. The plaintiff and defendant, who have both testified in the case, contradict each other, and are in direct antagonism. The evidence of the other witnesses is likewise conflicting. * * *
    “ [You must determine from the evidence- whether Townsend agreed to assume and pay the plaintiff’s debt at the time he entered into the contract with Vance. If you should be satisfied from all the evidence that the defendant made such engagement or promise, it would not be essential for the plaintiff to show that he was present when it was made, or that it was made directly to himself. It would be sufficient if made to Vance.] [If the plaintiff sold out his furniture establishment to Rankin & Vance for the consideration of $700 — six hundred to be paid on time — and Rankin afterwards went out of the business, Vance agreeing to fulfil that contract with the plaintiff, and Vance afterwards took the defendant in, the latter agreeing to pay the plaintiff’s debt, the defendant would be liable on such promise made to Vance. It would enure to the plaintiff’s benefit, and he may recover on it in this suit.]
    “ [It is insisted for the defendant that the promise, if made, was void, and cannot be enforced, because it was not reduced to writing, as provided by the Act of 26th April 1855; but we are not of that opinion. The consideration for the promise did not proceed from the plaintiff, but from Vance. Hence -it was a new, original, and binding contract. The defendant’s promise was induced by the advantage he acquired by means of his contract with Vance; and although the effect of his promise may be an assumption to pay the debt of another, it is binding, because it arises out of the new consideration of benefit to the defendant moving from Vance.]
    “ The jury will carefully consider all the evidence, and if they are not satisfied that the defendant made the promise as alleged, their verdict should be for the defendant. [If, however, they believe the defendant did assume the payment of the plaintiff’s claim in his contract with Vance, then the plaintiff would be entitled to recover the amount unpaid, with interest, on his agreement with Rankin and Vance.]”
    The jury returned this verdict: “The jury * * * do find a verdict for the plaintiff according to the terms of the article, with interest and costs of suit.”
    The defendant moved in arrest of judgment and to set aside the verdict on the ground that “ it is uncertain, defective and indefinite.” The motion was overruled and judgment directed to be entered on the verdict.
    Judgment was afterwards entered on the verdict for $803, “ as per liquidation of plaintiff’s attorney filed.”
    The defendant took a writ of error and assigned for error :—
    1, 2. The answers to his points.
    3-6. The parts of the charge in brackets.
    7. Overruling the motion in arrest of judgment and to set aside the verdict.

      Bart $ Brady for plaintiff in error.
    The alleged promise is within the act to prevent frauds, &c., March 21st 1772, 1 Smith’s Laws 389, and its supplement; April 26th 1855, sect. 1, Pamph. L. 308, 1 Br. Purd. 723, 724, pl. 1, 4. The original liability of Vance and Rankin continued to exist, and Townsend’s promise was only collateral to it, it was therefore within the statute : Maule v. Bucknell, 14 Wright 39; Williams’ Saunders 211 e, note 1; Shoemaker v. King, 4 Wright 107.

      Braden Miller for defendant in error.
    If the promise was made by Townsend, it was not necessary that the plaintiff should have been present, and that it should have been made to him: Hind v. Holdship, 2 Watts 104; Beers v. Robinson, 9 Barr 229 ; Vincent v. Watson, 6 Harris 96; Torrens v. Campbell, 24 P. F. Smith 470. Where the parol promise is merely one of guaranty, it is within the statute; but there are cases where the liability of the original debtor remains, and a promise to pay his debt will still be good without writing: Browne on Statute of Frauds, sect. 194; Maule v. Bucknell, 14 Wright 39. The promise is not within the statute merely on the ground that the debt is that of another, but where it is to pay the promissor’s own debt, although the, debt of a third person be thereby guarantied, the promise is binding: Malone v. Keener, 8 Wright 107; Arnold v. Stedman, 9 Id. 186; Clymer v. De Young, 4 P. F. Smith 118; Uhler v. Farmers’ National Bank of Bucks County, 14 Id. 406; Browne on Statute of Frauds, sect. 212.
    January 4th 1875.
   Mr. Justice Mercur

delivered the opinion of the court

The last assignment having been withdrawn, the other assignments will be considered together. They all relate to a verbal promise to pay the debt of another. The first section of the Act of 26th of April 1855, declares no action shall be brought to charge the defendant upon any special promise to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him authorized.”

The general rule is well settled that the promise is within the statute where it is collateral to a continued liability of the original debtor.

It is true, it was said, in Leonard v. Vredenberg, 8 Johns. 39, in regard to a similar statute, when “ the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly-contracting parties,” the case is not within the statute.

The cases of Malone et al. v. Keener, 8 Wright 107 ; Stoudt v. Hine, 9 Wright 30; Arnold v. Stedman, Idem 186, and Whitcomb et al. v. Kephart et al., 14 Wright 85, have been cited in support of this view. In Malone v. Keener, the case of Leonard v. Vredenberg is cited with apparent approval; but the facts were sufficient to take the case out of the statute, without adopting that rule of construction. The plaintiffs in error were contractors in the building of a railroad. They had sublet a portion of the work to the defendant in error. On settlement with this sub-contractor, and in part payment of the sum which they owed him, they delivered to him a note under seal, against the corporation from which they had taken the entire contract, and guaranteed its payment. It will be observed that they alone were indebted to him for his work and labor. That work and labor had been performed under a contract between him and them only. The debt which they thus sought to discharge was their own debt. In so doing they turned out the note, the payment of which they guaranteed. In no just sense can it be said that the design of this transaction was to answer for the debt or default of another. It was settling their own debt by the transfer of a chose in action, the apparent value of which they guaranteed to be its true value. This was based upon a full and sole consideration received by themselves. The promise did not come within the statute. It was good without any writing. The promise being in effect to pay their own debt, although in so doing they incidentally guaranteed the debt of another, did not change its character: Uhler v. Farmers’ National Bank, 14 P. F. Smith 406.

In Stoudt v. Hine, the plaintiff had money in his hands, which unquestionably belonged to one Kallahan. The latter agreed with Hine that a specific sum should be paid to him by Stoudt, out of the money in his hands, and Stoudt agreed with Kallahan to pay it to Hine. Hence the court in sustaining the promise adopted the language of Mr. Brown, in his work on the Statute of Frauds, where he says, “it is obvious that an engagement in terms to apply the debtor’s own funds received or to be received by the defendant, to the payment of the demand against him, creates a duty as agent, rather than a surety : the defendant’s promise is not to pay the debt, but merely to deliver certain property to the nominee of the original debtor, and the right of action of such nominee against the defendant for a breach of his promise, is not at all affected by the Statute of Frauds.”

In Arnold v. Stedman, the defendant had filed a mechanics’ lien on the equitable interest of Barrett in the land. Arnold then brought ejectment on his legal title, and obtained a verdict under an arrangement which gave it the effect of a conditional verdict. While this suit was in progress, Arnold and Stedman agreed that the latter should make no further costs on his lien, and that Arnold would pay Stedman his demand when the property came back to him. Stedmaii made no further costs. The property came back to Arnold. This agreement was held valid, for the reason that he thereby acquired the land, which at the time of the agreement, was charged with the debt due to Stedman. His promise was in relief of property to which he held the legal title, and to facilitate his recovery*of the land. This took the case out of the statute : Landis v. Royer, 9 P. F. Smith 95.

In Whitcomb et al. v. Kephart et al., the controlling facts were these: One Goss had a contract with Langdon and Diven to cut saw-logs for them on their lands at a price specified. Afterwards Goss gave a sub-contract to the Kepharts by which they agreed to cut a part of these logs. The Whitcombs were agents for Langdon and Diven, and were furnished with money to pay Goss as the work progressed. Some complaint having been made by the Kepharts in regard to obtaining their payment, they and Goss and Whitcomb met face to face, and a new agreement was then and there made between the three parties. It was agreed that the Whitcombs should pay the Kepharts for their work, except so far as Goss himself might pay them; and that Whitcombs should reserve the sum thus paid by them out of the amount going to Goss under his contract with Langdon and Diven. The Kepharts went on with the work. The Whitcombs received the money from Langdon and Diven, wherewith to pay them, but did not do so. It had become their own debt under a contract in which Goss participated and agreed that they should receive the money for the use of the Kepharts. The promise then which the Whitcombs made was not to pay the debt of another, but to discharge their own original agreement; an agreement by which the money they might receive was appropriated to this specific object. A fund was then provided by Goss to pay the very debt which the Whit-combs agreed to pay. These facts then did not bring the case within the statute: Clymer v. De Young, 4 P. F. Smith 118.

The apparent favor with which Leonard v. Vredenberg had been cited in some of the preceding cases, was clearly and distinctly repudiated in Maule v. Buckwell et al., 14 Wright 39. It was there said that, “ It is not true as a general rule that a promise to pay the debt of another, is not within the statute if it rests upon a new consideration passing from the promissee to the promissor. A new consideration for a new promise is indispensable without the statute, and if a new consideration is all that is needed to give validity to a promise to pay the debt of another, the statute amounts to nothing. Nor can it make any difference that the new ■consideration moves from the promissee to the promissor.” In further disproval of the rule recognised in Leonard v. Vredenberg, Mr. Justice Strong said, “ That this proposition is inaccurate, however, is almost universally admitted, and as we have already remarked, it practically denies all effect to the statute. It cannot be admitted for a moment in the terms in which it was expressed.” This case proceeds to show by the authorities, that the consideration for the promise is of importance only where it is either a substantial transfer of the creditor’s claim to the promissor, making •the transaction a purchase, or where it is a transfer to the promissor of a fund pledged, set apart, or held, fo^ the payment of the debt. It is only in such cases, or in those of a kindred character, if the old debt remains, that the promissor is liable, unless, by an agreement with the original debtor, the latter has become only secondarily liable.

This doctrine is in accord with the language of Chief Justice Lowrie, in Shoemaker v. King, 4 Wright 107. He said, While the old debt remains the new contract cannot be substituted, but is only a collateral one, a promise to pay another debt, and it is forbidden by the statute as a cause of action.” He, however, disclaimed any intention to question those cases in which a debtor had put money or other means into the hands of another to be delivered to a particular creditor of his, and the creditor had been held entitled to recover of the promissor. The judgment of the court was, that Shoemaker was not liable to a creditor of Harper & Reese, although, on his purchase of their entire partnership effects, he had verbally promised to pay all the debts of the firm. The evidence does not show' any promise to pay the debts with those effects, nor from their proceeds. So in Maulé v. Buckwell, supra, it was held that a verbal promise to pay all the debts of a private corporation made to certain directors of the company, on a sale and transfer to him of part of their stock, was within the statute, and the promissor was not liable to a creditor. Here too was no agreement'to pay with the stock purchased or its proceeds.

In Clymer v. De Young, supra, on a sale of a stock of goods, the purchaser promised to pay a certain debt due by the vendor, and the promise was held not to be within the statute. The facts, however, show that this promise was not made to the vendor only, but was in an agreement between the creditor, purchaser and vendor. It was a contract made by all three of the parties. The promissor thereby became the principal debtor, and it was this debt of his own which he promised to discharge.

It is true, the opinion proceeds to liken the case to Stoudt v. Hine, when the facts were radically different. In the one, there was a promise to the person whose money he held, to pay over'that money to a creditor, the creditor not being a party to the new agreement. In the other, there was an express agreement between the original debtor, the creditor, and the new promissor, so that it became a new contract between all the parties in interest, and the promissor was clearly liable to the creditor.

Where there is a transfer of a fund to the promissor, for the payment of the debt, as in Stoudt v. Hine, he is liable to the creditor on his verbal promise made to the owner of the fund; or if property charged with the payment of the debt be transferred to him, on his promise to the vendor to pay the debt, he is liable to an action by the creditor, as in Arnold v. Stedman, supra. In Torrens v. Campbell, 24 P. F. Smith 470, the agreement to pay ■the debts was in writing, so the question of the statute did not arise..

As a general rule, the true question is not what is the consideration, but what is the promise ? If, however, one assumes to pay the debt of another, in consideration of funds being placed in his hands for that purpose by the original debtor, then the consideration becomes an important fact in fixing the liability of the promissor to the creditor.

The general rule is that if the promise be to pay or discharge either absolutely or conditionally the debt of another then due, or thereafter to become due, on an existing contract, it is within the Statute of Frauds. Before a creditor can recover, then, upon a verbal promise to pay him the debt of another, he must bring himself within one of the class of excepted cases.

The finding of the jury in this case establishes substantially these facts: Long, Vance and Rankin were associated as copartners in the furniture and undertaking business, on a limited scale. In January 1870, Long sold to his co-partners his interest in the establishment, which included tools, hearse, ready-made furniture, accounts due them, and the use of the shop without rent until the 1st of May following. In consideration of which they were to pay him $700 without interest, $100 thereof on said 1st of May and the remainder at the expiration of eighteen months from the time of purchase; and also to pay all debts contracted while they w'ere associating together. At the expiration of two months Rankin retired, leaving the property and business in the hands of Vance, with the understanding that the latter should pay all their debts. Vance continued the business for a short time, but in the same spring, and before making any payment to Long, sold out the entire establishment, including all debts due to it, to the plaintiff in error, in consideration of his verbal promise to pay all the debts of the concern, the debt in favor of the defendant in error being expressly mentioned as one of them. The actual value of the property thus sold and purchased is not clearly shown. It does not appear that any particular point was made in regard to it. In the absence of proof showing it, we will not assume its value to have been less than the amount Townsend agreed to pay. It was then a purchase, and taking possession by him, of the same property substantially that the defendant in error had delivered to Vance. It was practically an agreement to take and occupy the same position which Vance had held in the transaction. As Vance had taken and held the property under an agreement to pay Long, in like manner, on its transfer to Townsend, the latter was to take and hold it. While this did not create such a trust in the latter as could have been specifically enforced by bill in equity, yet it so far partook of the character of one as to transfer the superior obligation to him. Hence we conclude the fair inference to be, and it is not removed by any evidence, that the property was transferred to the plaintiff in error with the understanding of the parties to the transaction that the avails and proceeds of the property and business should pay and discharge the debt due to the defendant in error. It is true, this view of the case was not clearly presented in the points submitted to the court below, nor in the answers of the learned judge, but as it naturally arises from the facts in the case, we see no sufficient error to reverse the judgment.

' Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Long’s Appeal.
    1. A mortgagee of an interest in an undivided estate is not entitled to be made a party to a proceeding in partition, and cannot do any act affecting the title or estate of his mortgagor.
    2. A mortgagee of an undivided interest cannot object to partition by the parties themselves 5 if competent they are not bound to go to law to make the partition.
    3. When partition is made, the security of the mortgage follows the separation and attaches to the estate held in severalty.
    4. The mortgagee may object to fraud or unfairness affecting his interest; but if the partition be fairly made he cannot gainsay it.
    November 16th 1874.
    Before Agnew, C. J., Sharswood Mercur and Gordon, JJ.
    Appeal from the Orphans’ Court of Beaver county: Of October and November Term 1873, No. 194. In the estate of Price Bryan, deceased.
    To the March Term 1873 of the Orphans’ Court of Beaver county, Joseph W. Long presented a petition, setting out that the decedent died in April 1865, intestate, seised of a tract of land containing about 100 acres, and leaving to survive him a widow and four children, of whom Pollie C., intermarried with William M. Claney, and Bassie A., intermarried with Samuel Kenney, were two; that on the 15th day of November 1871, the interest of Mrs. Claney in her father’s estate, was sold at sheriff’s sale to the petitioner, and a deed to him acknowledged June 12th 1872; and praying the court to award an inquest to make partition of the above-mentioned tract of land. Samuel Kenney and wife filed an answer, setting out that the four heirs of the decedent, on the 25th of September 1870, entered into an amicable agreement under their hands and seals, to have the real estate divided, and by the same agreement selected three persons to make the partition; under which about 33 acres of the tract was divided into four parts and distinctly marked off; that each of the heirs in order of seniority made choice of one of the lots and they took possession of their respective lots; some of them had made improvements on their lots. The respondents prayed the court to refuse the petition.
    The petitioner filed a replication, which set out, that on the 15th of June 1870, Pollie C. Claney, with her husband, executed and delivered a mortgage to the petitioner on her undivided one-fourth of her father’s real estate, to secure the payment of $6900, which mortgage was recorded August 11th 1869; that judgment was recovered on the mortgage, and her undivided interest was sold upon a levari 'facias to the petitioner, and a deed for the same made to him by the sheriff. After argument on these pleadings, the court (Acheson, P. J.,) denied the prayer so far as related to the 33 acres and awarded an inquest as to the remainder.
    The petitioner appealed to the Supreme Court and assigned for error the refusal of the court to award partition of the 38 acres.

      Bice, Wilson Moore and T. MacConnell ‡ Son, for appellant.
    A mortgagor is a purchaser, and is protected from secret equities and trusts of which he had no notice: Heister v. Fortner, 2 Binn. 40; Cover v. Black, 1 Barr 493; Martin v. Jackson, 3 Casey 504; Journeay v. Gibson, 6 P. F. Smith 57. The mortgagor cannot make any lease or contract as to the mortgaged premises to bind the-mortgagee or prejudice his title: McCall v. Lenox, 9 S. & R. 310 ; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 419. One taking a mortgage from a tenant in co'mmon is not bound by a partition to which he is not a party: 1 Hilliard on Mortgages 13; Colton v. Smith, 11 Pick. 311.
    The title of a purchaser at sheriff’s sale under a mortgage relates to the date of the mortgage: McCall v. Lenox, 9 S. & R. 302; McCormick v. McMurtrie, 4 Watts 195; Clarke v. Stanley, 10 Barr 472; Jaques v. Weeks, 7 Watts 270; Bury v. Sieber, 5 Barr 431; Dehaven v. Landell, 7 Casey 130; Hartman v. Ogborn, 4 P. F. Smith 120.

      Cameron Marks, for appellees.
    Where heirs make partition by agreement, followed by a corresponding possession, the judgment-creditors of an heir will not be permitted to dispute it: Darlington’s Appropriation, 1 Harris 430 ; McMahan v. McMahan, Id. 380; Bavington v. Clarke, 2 Penna. R. 115; Calhoun v. Hays, 8 W. & S. 127. A mortgage is a mere security for money: Craft v. Webster, 4 Rawle 255 ; 4 Kent’s Com. 163; Casborne v. Scarfe, 1 Atk. 603.
    November 21st 1874,
   Judgment was entered in the Supreme Court,

Per Curiam.

A mortgagee of an undivided estate is not entitled to be made a party to a proceeding in partition. He is not the owner of the estate, but a mere encumbrancer, who cannot claim to elect or to refuse a purpart, to give security for owelty, or to do any act affecting the title or estate of his mortgagor. His estate is defeasible, and the moment his debt is paid it ceases. What sort of decree would it be to award him the' share or purpart of his mortgagor until his debt should be paid? On what principle should a mere encumbrancer, whose estate is liable at any moment to be defeated, claim the right to say what share shall be taken for his mortgagor, or to refuse to take any? He cannot thus interfere with the lasting rights of the owner. How far a court wmuld permit him to come into the proceeding to defend his interests against unfairness, and thus protect his security, is not the question. In order to be entitled to be made a party, he must have an estate, as owner, such as would confer the rights and powers of an owner. If then he cannot claim to be a party at law, he cannot object to a voluntary partition by the parties themselves. If competent they are not bound to go to law to make the partition. When partition is made the security of the mortgagee follows the separation, and attaches to the estate held in severalty. The only right the mortgagee has is to object to unfairness or fraud affecting his interest; but if the partition be fairly made, he cannot gainsay it. He loses nothing, and his security gains an advantage in being freed from the interference of co-tenants.

The argument as to the supposed contrariety of decision upon the nature of a mortgagee’s interest is unfounded, and results from not discriminating between the questions considered in the cases. A mortgage in form is a deed or conveyance of real estate, and is required to be recorded as other deeds are, Hence in all questions upon the recording acts, the mortgage is spoken of as a conveyance of land, the law having placed deeds absolute and defeasible on the same footing in many respects. So when the questions relate to remedies which follow the form of the transaction, such as ejectment, estrepement, perception of profits, &c., the cases also treat of the subject as an estate in the land, this being its form and the remedies being in acdord with the form. But when the’ questions have related to the real nature of the mortgagee’s interest, it is always held to be personal, and to go to the personal representative and not to descend to the heir. This was a mere personal security for a debt, or other thing. On the death of the mortgagee his administrator could not be made tenant to the praecipe in a writ of partition, or a party to a proceeding in the Orphans’ Court.

We discover no error in the decree of the Orphans’ Court. It is therefore affirmed, with costs to be paid by the appellant, and the appeal is dismissed.


author: Chief Justice Agnew

text:
    Commonwealth ex rel. John B. Butler versus John F. Hartranft, Governor of Pennsylvania.
    1. Under section 3d article 5tli of the Constitution of 1873, the jurisdiction of the Supreme Court in mandamus is expressly restricted to courts of inferior jurisdiction.

    2. The 11th sect, of the Schedule to the new Constitution does not continue the jurisdiction of the Supreme Court in the cases mentioned in sect. 3d, art. 5th, of the new Constitution, until December 1st 1875.
    3. The courts whose jurisdiction by the Schedule is to remain unabridged, are those only whose existence is to continue until December 1875, and which are “ courts of record and existing courts not specified in the Constitution.”
    4. The Supreme Court, the Common Pleas, Oyer and Terminer, Quarter-Sessions and Orphans’ Court, are permanent courts, to continue whilst the Constitution is unchanged.
    November 18th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    In the Supreme Court of Pennsylvania, Western District: Of October and November Term 1874, No. 293.
    This was a petition by John B. Butler for á mandamus against John F. Hartranft, Governor of Pennsylvania, to issue a commission to the petitioner as a justice of the peace for the borough of Butler, in the county of Butler, to which office he alleged he liad been duly elected on the 17th of February 1874.
    The defendant having demurred to the jurisdiction of the Supreme Court, it is unnecessary to state the grounds of the complaint, as set out in the petition.
    The demurrer was as follows:

      “ That section 3d of article 5, of the Constitution, provides that < the jurisdiction of the Supreme Court shall extend over the state, and the judges thereof shall by virtue of their offices, be justices of Oyer and Terminer and General Jail Delivery in the several counties; they shall have original jurisdiction in cases of injunction where a corporation is a party defendant, of habeas corpus, of mandamus to courts of inferior jurisdiction, and of quo warranto as to all officers of the Commonwealth whose jurisdiction extends over the state, but shall not exercise any other original jurisdiction; they shall have appellate jurisdiction by appeal, certiorari, or writ of error in all cases, as is now or may hereafter be provided by law,’ and that therefore this court hath not jurisdiction of the bill of complaint filed by the plaintiff.”

      J. N. Purvianee, T. Robinson, Thompson Scott, for relators.

      L. B. CHlbert, Deputy Attorney-General (with whom was Bimmick, Attorney-General), for respondent.
    November 21st 1874.
   Chief Justice Agnew

delivered the opinion of the court,

Waiving the form of this application, which seems to be rather a bill in equity than a common-law petition, we may come at once to the demurrer filed, and on which issue is ■taken by the relator. ■ The relator, John B. Butler, asks us to issue a mandamus to the Governor, requiring him to commission the relator as a duly-elected justice of the peace. The demurrer denies the jurisdiction of the Supreme Court to issue the writ of mandamus. By the 3d section of the 5th article of the new Constitution, the Supreme Court “ shall have original jurisdiction in cases of injunction where a corporation is a party defendant, of habeas corpus, of mandamus to courts of inferior jurisdiction, and of quo warranto as to all officers of the Commonwealth whose jurisdiction extends over the state, but shall not exercise any other original jurisdiction.” It is plain that this section confines our jurisdiction in cases of mandamus to the courts of inferior jurisdiction within the state. But it is argued that our former jurisdiction, which was ample, and extended to all cases of mandamus under the former Constitution, is preserved until the first day of December 1875, by virtue of the 11th section in the Schedule to the new Constitution. It provides as follows: “ All courts of record and all existing courts, which are not specified in this Constitution, shall continue in existence until the first day of December in the year one thousand eight hundred and seventy-five, without abridgment of their present jurisdiction, but no longer.” This is followed immediately by a provision abolishing the court of first criminal jurisdiction for the counties of Schuylkill, Lebanon and Dauphin, without waiting until the 1st December 187 5. It is contended that the Supreme Court is included within the terms “ all courts of record,” and its jurisdiction thereby continued until December 1st 1875. But clearly this is not true, for in the 11th section, just quoted, the continued existence of the courts described in it, until December 1st 1875, is as much a predicate as the unabridged jurisdiction. It is quite evident that the courts referred to in the section are those only which are to continue until the 1st of December 1875 and no longer. The obvious purpose of the section was to continue the courts described in it, until the time fixed for their expiration, with unabridged jurisdiction until that time; and then that the courts themselves must cease to exist. The question therefore is what courts are referred to by the words all court's of record, and all existing courts.” The answer seems to be clear, they are those, in the language of the, section, “ which are not specified in this Constitution.”' The Constitution had already created certain permanent courts, which may therefore be termed constitutional courts; such as the Supreme, the Common Pleas, Oyer and Terminer and General Jail Delivery, Quarter Sessions, and Orphans’ Courts. These were to endure while the Constitution remained unchanged; and being thus permanently established by the Constitution itself, it is not to be supposed that the Schedule was intended to end them. The Schedule, being a temporary provision to carry the new Constitution into effect, by bridging the chasm between it and the old, cannot be interpreted to supplant the Constitution altogether. The 11th section was therefore intended to apply to courts of record, and other existing courts not “specified” in the Constitution. Of these there are several — such as the courts held at Johnstown, Scranton and Carbondale. All such courts are, by the 11th section, to continue in existence, with unabridged jurisdiction, until. December 1st 1875. If the words “all courts of record ” embrace all existing courts of record, they will contradict and derange the system as to the District Courts of Philadelphia and Allegheny, which are “ specified ” courts terminating on the organization of the new courts of Common Pleas on the first Monday of January 1875. The interpretation derives further force from the immediate abolition of the Criminal Court of Schuylkill, Lebanon and Dauphin counties, in the same section; and also from the next section (the 12th), which abolishes all the then existing Eegisters’ Courts on the first day of January 1875. This being the true interpretation, so far as we can discern it, of this very dubious section eleven, and the Supreme Court being one of continuous existence, not to end on December 1st 1875, its jurisdiction in original matters is defined and fixed by the 3d section of the 5th article. That having excluded the jurisdiction by mandamus over others, than the courts of inferior jurisdiction, by the express negative words, “but shall not exercise any other original jurisdiction,” the demurrer must be sustained. This result is to be deplored, as depriving the people of one of the highest forms of remedy essential to the interests of a republic, and must drive every one to the seat of government, into a local court, to maintain the rights of the people against state officers, subject to all the delays which flow from the right' of appeal. But it cannot be helped, so long as the restrictive provisions of the 3d section of the 5th article remain.

Judgment is therefore given upon the demurrer for the defendant, John F. Hartranft, Governor, and that he recover his costs in this behalf expended.


author: Mr. Justice Sharswood

text:
    Beeson versus Breading.
    1. A devise of a lot was to Jacob, Jonathan and Henry in fee ; “ all the balance of my property, both real and personal, I direct to be sold by my executors * * * and the proceeds,’after paying just debts, s * * I divide as follows making pecuniary legacies and a general residuary clause. By a codicil “ the bequests” to Jonathan were revoked. Henry’s devise lapsed by his death in the life of testatrix. Held, that under the direction to sell, “the balance of my property,” the executors had no authority to sell the portions of the lot devised to Jonathan and Henry.

      2. The direction to sell worked an absolute conversion of all her property but the lot.
    3. A revocation of a devise by a codicil, would not operate to authorize a sale of “ the balance ” directed by the will to be made.
    4. The testatrix not having intended by the will to convert the lot into money, a power to sell cannot arise from a subsequent event; unless such power were expressed or necessarily implied.

      5. Downer v. Downer, 9 Watts 60, approved.
    November 19th 1874.
    Before Agnew, O. J., Sharswood, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1874, No. 232.
    This was an action of partition, in which Clark Breading was plaintiff and Jacob Beeson defendant, commenced February 9th 1850. The premises of which partition was demanded were a piece of land in South Union township, Fayette county, on the National Boád, &e., containing 20 acres more or less. The plaintiff claimed that he was entitled to two undivided thirds of the premises and that the defendant was entitled to one-third.
    The title of both parties was under the will of Bachel Skiles and its codicils, which were proved May 6th 1865; the testatrix died in 1865.
    The will was dated May 15th 1860. By the will she provided amongst other things, as follows—
    “ I give and devise unto Jacob Beeson, Jonathan D. Beeson and Henry Beeson, sons of Henry H. Beeson, all my out lot situate on the National Boad, west of Uniontown, adjoining Bedding Bunting on the west, Everhart Bierer on the east, to them and their heirs forever. All the balance of my property, both real and personal, I direct to be sold by my executors as soon after my decease as they may deem best for the interest of my estate, and the proceeds after 'paying my just debts and necessary expenses, I divide as follows:”
    She then made a number of bequests and made this residuary disposition. “ All the rest and residue of my estate I give and bequeath unto Henry H. Beeson, Jacob B. Miller and Jonathan D. Springer, to be equally divided between them ; and I do hereby appoint the said Jacob B. Miller and Jonathan D. Springer, executors,” &c.
    By the last codicil, dated March 8th 1865, she revoked “the bequest” in the will to Jonathan D. Beeson, son of Henry H. Beeson.
    The case was tried April 30th 1874, before Stowe, J., of the Fifth district.
    The plaintiff gave in evidence the will and codicils: also that Henry Beeson, son of H. H. Beeson, was killed in the army in May 1864 : also deed of the executors of Bachel Skiles, dated November 3d 1869, to the plaintiff, for two-thirds of the premises of which the partition is demanded. The deed recited the devise of one-third of the premises to Jacob Beeson, the order to the executors to sell all the residue of her real estate not disposed of by said will, and the sale “ in pursuance of the directions of the will” of the undivided two-thirds of the premises, &c.
    The jury-found that Henry Beeson, son of H. ,H. Beeson, died before the testatrix; this was the only question of fact submitted to the jury.
    There was a verdict for the plaintiff, subject to the opinion of the court on the following questions of law, reserved:—
    1. Did the codicil of March 8th 1865, revoke the devise to Jonathan D. Beeson of the one-third of the land in suit ?
    2. By the death of Henry Beeson in the life of the testatrix did the devise to him lapse ?
    8. Have the executors authority under the will to make the sale and conveyance to Clark Breading under which he claims ?
    The court afterwards directed judgment to be entered for the plaintiff on the questions of law reserved, and filed an opinion, as follows:—
    “ A very careful consideration of the questions of law reserved in this case, with the assistance of the arguments of counsel furnished me, has led me to the conclusion that the codicil of 8th March 1865, revoking the bequests made to Jonathan D. Beeson, revokes the devise as well as the legacy given by the will, and that thereupon the interest of Jonathan, as originally created, by the will, became part of the residuary estate. The will, as altered by the codicil mentioned, is to be taken as republished, and stood then as a devise of one-third of the land in question to Jacob Beeson, and one-third to Henry Beeson, and the interest before in Jonathan became a part of the balance of testatrix’s property, which the executors were empowered to sell. To this extent I feel clear. The sale by the executors would be valid. As to their right to dispose of the interest of Henry, who, though dead at the time of'■ the death of the testatrix, is not found to have been so at the date of the codicil, I do not feel so sure; indeed, as to that I have serious doubts. But that the case may be presented to the Supreme Court on both points by one writ of error, I have concluded to hold that the sale by the executors was good as to the interest of both Jonathan and Henry, and therefore vested a good title to the two-thirds of the land in plaintiff.”
    The defendant took a writ of error and assigned for error : entering judgment on the verdict for the plaintiff on the questions reserved.

      D. Downer (with whom was O. J8. Boyle), for plaintiff in error.
    —“ All the balance of my property” in the direction to sell, referred to the property which she had not disposed of by the will: Downer v. Downer, 9 Watts 60; Clark v. Riddle, 11 S. & R. 311.

      W. H. Playford, for defendant in error.
    By the death of Henry Beeson, by which the devise to him lapsed, and the revocation of the devise to Jonathan, their respective shares became part of “ the balance” of the estate of the testatrix and came under the operation of the direction to sell: Patterson v. Swallow, 8 Wright 487.
    January 4th 1875.
   Mr. Justice Sharswood

delivered the opinion of the court,

We are of opinion that upon the true construction of the will of Rachel Skiles there was no power given to her executors to sell the out lot on the National Road or any part of it in any event. She makes a specific devise of that lot unto Jacob Beeson, Jonathan D. Beeson and Henry Beeson, to them and their heirs forever. She then immediately adds, “ all the balance of my property, both real and personal, I direct to be sold by my executors as soon after my decease as they may deem best for the interest of my estate, and the proceeds, after paying my just debts and necessary expenses, I divide as follows.” She then proceeds to give several pecuniary legacies, and a general residuary bequest. “ All the rest and residue of my estate I give and bequeath unto Henry H. Beeson, Jacob B. Miller and Jonathan D. Spring, to be equally divided.” It is to be observed that it was not a mere power to sell but an absolute direction, and worked an immediate conversion. She meant that all the balance of the property (except the out lot) should be converted into money and distributed as she directed, in pecuniary legacies, with the residuary bequest. It cannot be inferred that at the time of the execution of the will she had any intention to convert the out lot into money. If she had not then such an intention, how can such a power arise from subsequent events ? An express revocation of the devise by a subsequent codicil would not work such an effect. It would require a new power, either clearly expressed or necessarily implied. It is very much like the case of Downer v. Downer, 9 Watts 60, where, after a specific devise of a lot charged with legacies, which the devisee refused to accept, the testator directed his executors to sell his whole real estate not otherwise disposed of in his will. It was held clearly that the power of the executor to sell did not include the lot, though in the event which had occurred it became a part of his real estate not otherwise disposed of. It had reverted to his estate just as is supposed in the case before us. But the charges upon it were not affected, and it was held therefore that the only mode of proceeding was in the Orphans’ Court to enforce the charge by a sale. It results from this construction of the will that Clark Breading, the plaintiff below, derived no title from the sale by the executors, and therefore

Judgment reversed, and now judgment on the reserved points for the defendant below.


author: Mr. Justice Williams

text:
    Cox el al. versus Rogers.
    1. One accepting a benefit under a will, is estopped from asserting a claim repugnant to its provisions.
    2. A testator directed, “ my wife is to have the whole of my personal property to enable her to raise, support and provide for the younger part of my family, and at the death of my wife, what part of my personal property is then to be had shall be equally divided among my daughters ; and I wish it. to be fairly understood that my personal property should descend and be equally divided among my daughters.” Held, to be an absolute gift to the wife.
    3. The testator also provided, “ I do will to my son, his heirs and assigns, my farm, &c., subject to my wife’s thirds,” &c. The wife owned the farm. She accepted and retained the legacy of the personal property. Held, that she, and her heirs after her death, were estopped from claiming the farm.
    4. The wife, on her administration account as executrix, took credit: “ By balance of personal property retained by the executrix according to the will.” Held, to be unequivocal evidence of her election to take the legacy under the will.
    5. Such election to be binding must be evidenced by unequivocal acts clearly proved, must be made with a full knowledge of the facts, and the burden of showing this is upon him who alleges that an election has been made.
    6. The legal presumption is that the wife knew that if she accepted the legacy she would be estopped from claiming the farm as her own.
    7. Whether the facts constitute an estoppel is a question of law for the court.
    8. Declarations of the wife that she held the land as her own and had made no election, would not avail if made after a great lapse of time, although the election had been made in ignorance of her rights.
    9. Bradfords v. Kents, 7 Wright 474, adopted.
    November 18th 1874.
    Before Agnew, C. J., Sharswood, Williams. Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Washington county: of October and November Term 1874, No. 80.
    This was an action of ejectment, commenced March 28th 1872, by Rose Ann Cox and a number of others, against Patrick Rogers, for seven undivided ninth parts of a tract of 800 acres of land in Donegal township. The -plaintiffs and the defendants were the children and descendants of children, of Francis Rogers and Elizabeth Rogers, his wife; the plaintiffs representing seven of nine.
    John IIupp, Sr., some time before the beginning of this century, was the owner of several adjoining Surveys, making in the whole about 1375 acres, the land in dispute being part of these surveys. John Hupp, Sr., died about the time above mentioned, intestate, leaving to survive him four children, viz.: John Hupp, Jr., Margaret, intermarried with John Titus, Mary, intermarried with Thomas Smith, and Elizabeth, intermarried with Francis Rogers. Francis Rogers was in possession off the land in dispute about the year 1800; he lived on it till his death, about May 1829, leaving his wife and nine children to survive him. By his will, dated November 17th 1825, and proved May 29th 1826, he provided, amongst other things, as follows:—
    “ I do will and bequeath to my beloved wife Elizabeth, the whole of my real estate as long as she remains my widow, for the benefit of my young children, and to enable her to raise, school and provide for, and they are to get each of them when they get married as much as my daughters got when they left me; and my ’ wife is to have the whole of my personal property to enable her to raise, support and provide for the younger part of my family as above stated; and at the death of my wife what part of my personal property is then to be had shall be equally divided among my daughters, which is now nine in number; and I wish to be fairly understood that my personal property should descend and be equally divided among my daughters.
    “ Item second. I do will and bequeath to my son John Rogers, and his heirs and assigns, my plantation in Findley township, that I bought from Charles Mays, containing 100 acres, strict measure, subject to my wife’s third during her natural life, if she sees fit to call on him or stand in need of it.
    “ Item third. I do will and bequeath to my son Patrick Rogers, and his heirs and assigns, my farm in Donegal township, that I now live on, subject to my wife’s thirds during her natural life; and my wife is to have my mansion house to live in so long as she remains my widow; and I do constitute my wife, Elizabeth Rogers, and my son, John Rogers, in whose fidelity I very much confide, my executors,” &c.
    John Rogers died shortly after the testator; his descendants are not included amongst the plaintiffs.
    On the 80th of December 1829, Elizabeth Rogers “ exhibited into the register’s office ” her account as executrix, &c., of Francis Rogers, deceased.
    She charged herself with all the goods, &c., according to am inventory, filed June 23d 1829, '. $1100.60
    Also with sundry notes due said estate, . ■ . . 752.39
    $1852.99
    She took credit for sundry payments amounting to...... $60.68|*
    Also: “ By balance of personal property retained by the executrix according to the will,” 1792.30f
    --$1852.99
    This account was signed by her and sworn to before the register. He also certified, under his seal of office, that the account had been duly examined, passed, &c., and that he had given notice of the settlement of the estate to all legatees and others concerned, or agreeably to the Act of Assembly, &c„

      Elizabeth Rogers died intestate in 1866, and the plaintiffs alleging that the land was her property, claimed the seven-ninths as her heirs-at-law.
    The principal questions in the case was whether the acts of Elizabeth Rogers were an acceptance of the legacy to her under her husband’s will, and if so whether the plaintiffs were therefore estopped to claim the land, it having been devised by Francis Rogers to the defendant.
    Some time in 1855, Vankirk, a surveyor, at the request of the children and heirs of John Hupp, Sr., made a survey of the whole body of land; at that time the heirs produced to him a plot of an original amicable division of the land amongst the heirs of John Hupp, Sr., Elizabeth being at the time of the survey in possession of that part in dispute; the heirs made mutual conveyances in fee to each other of their respective parts, by quit-claim deeds; one of the deeds was to Elizabeth Rogers for the part in dispute; the deeds were dated January 8th 1856.
    The case was tried, February 23d 1874, before Acheson, P. J.
    The plaintiffs gave evidence that Mrs. Rogers had possession of the land from her husband’s death till her own; the defendant, with others of the children, lived on the land with their mother, the defendant, until about 1839, he then married and lived elsewhere for about four years; his wife having died he returned to this land; again married, and again left there and lived on other property of his own till his mother’s death; after her death he took possession of this land.
    They gave evidence also of a lease of the land to the defendant from his mother; also, that the balance of the personal estate of Elizabeth Rogers in the hands of her administrator was $3092.47, and that she had no revenue except that derived from the farm.
    They gave evidence that the defendant had declared that his mother would never make a deed to him for the land; that she had said that the land was to be divided amongst the heirs equally.
    Isaac Deeds testified that defendant said to him that he never claimed the land as his own; witness told Mrs. Rogers she had better will the land to Patrick; she said, “ Never, never — he shall not have the farm; she wanted all her children to become equal;” she said she would let witness know if she desired to make a will; that if defendant wanted it he might buy it from her.
    The defendant testified that he had not had such conversation with Deeds as had been spoken of.
    In the course of the trial, there were offers by plaintiffs to prove that while Mrs. Rogers was in possession of the land, she declared she was holding it as her own, that it belonged to her; for the purpose of showing the character of the possession and also of showing title under the Statute of Limitations. The offers were rejected and bills of exception sealed.

      The plaintiffs submitted a number of points, amongst others:—
    1. The conveyance in 1856 by the heirs of John Hupp, Sr., to Mrs. Rogers then vested the title in her, and the plaintiffs were entitled to recover.
    The court answered : “ This is true; and if there were nothing more in the case, the plaintiffs would be entitled to recover on their title as exhibited; but the question of election arises by which they may be estopped.”
    2. “If the jury believe that Elizabeth Rogers, deceased, for more than twenty-one years prior to her death, in 1867, occupied the land in dispute, claiming it as her own, and that said occupation was notorious, hostile, continued, exclusive, and adverse to all other alleged title or right to said land, and that the plaintiffs are the heirs at law of said Elizabeth Rogers, then their verdict should be for the plaintiffs.”
    The court answered: “ If Mrs. Rogers made no valid election under the will of her husband, Francis Rogers, this would be true.”
    5. “There is no sufficient evidence in the case to-show that Elizabeth Rogers did elect to take under the will of Francis Rogers, deceased, in such manner as would estop her from setting up title to the land in dispute.”
    This point was refused.
    11. “ If the jury believe that the defendant, with the knowledge that his mother, Elizabeth Rogers, was acting under the will of Francis Rogers, in ignorance of the effect of her said acts upon the title to the land in dispute, and that said defendant at the time knew the legal effects of such acts, yet purposely refrained from informing his mother of the same, he cannot claim now that her said acts were such an election under said will as to estop her heirs from claiming the land in dispute.”
    The court answered : “ If the facts proven warranted any such conclusion, it might be so; but if she acted freely and without constraint in making the settlement and taking credit for the balance of the personal estate bequeathed to her in the will, her act was binding and irrevocable.”
    Judge Acheson concluded his charge, saying:—
    “We are therefore of the opinion, upon the evidence, that Mrs. Rogers elected to take under the will of her husband, Francis Rogers, and the plaintiffs are estopped from maintaining their present ejectment suit.”
    The jury found for the defendant.
    The plaintiffs took a writ of error and assigned 11 errors.
    The 5, 6, 7 and 9 were the answers to the plaintiffs’ 1, 2, 5 and 11 points: the 11 was to the portion of the charge of the court above given.

      P. T. Watson and M. Woods (with whom was John Ailcen), for plaintiffs in error.
    In order to raise a case of election it must be apparent from the face of the will that the testator intended to put the legatee to an election: 2 Story’s Eq. Juris., §§ 1086, 1087. The gift to Mrs. Rogers was a trust: Beck’s Appeal, 10 Wright 532.
    An election in pais must be evidenced by unequivocal - acts clearly proven: Anderson’s Appeal, 12 Casey 480; Light v. Light, 9 Harris 412; 2 Smith’s Leading Cases 764. To be binding it must be made with a full knowledge of all the facts; Kreiser’s Appeal, 19 P. F. Smith 194; Redfield on Wills 748 ; Bigelow on Estoppel 578, 580; Fitts v. Cook, 5 Cushing 596.

      D. J. Wilson, for defendant in error.
    The gift to Mrs. Rogers was absolute to herself: Pennock’s Appeal, 8 Harris 268: Reformed Church v. Disbrow, 2 P. F. Smith 219 ; Paisley’s Appeal, 20 Id. 153; Jauretche v. Proctor, 12 Wright 466. The widow having elected to take the legacy under the will, she is estopped to deny the validity of the devise to the defendant: Bradfords v. Kents, 7 Wright 174; Stump v. Findlay, 2 Rawle 174; Preston v. Jones, 9 Barr 466.
    October 8th 1874.
   Mr. Justice Williams

delivered the opinion of the court,

The main question in this case arises on the last assignment of error. Are the plaintiffs estopped from recovering the land in dispute as the heirs of Elizabeth Rogers by her acceptance of the legacy under the will of her husband, Erancis Rogers ? It is well settled that if one accepts a benefit under a will, he is estopped from asserting a claim repugnant to its provisions. If then Mrs. Rogers elected to take the personal property bequeathed to her by her husband, it is clear that her heirs are estopped from claiming the land which he devised to the defendant, even if it belonged to her and he had no right to dispose of it. Her husband gave her the whole of his personal property; did she accept the bequest? That she received and retained it is incontestably shown by the account which she settled as executrix. Her husband died in 1829, and his will was proved and letters testamentary issued the 29th of May 1829, and on the 30th of December 1829, she exhibited her account as executrix into the register’s office. In it she charges herself with all and singular the goods, &c., which were of the deceased and which had come to her hands, possession or knowledge according to an inventory and appraisement thereof exhibited in the Register’s office the 23d of June 1829, . . $1100.60

And with sundry notes due said estate, . . 752.39

Amounting in all to ..... $1852.99

And prays allowance for her payments and disbursements out of the same, viz.:

By cash paid sundry persons, . . $60.68J

By balance of personal property retained by • the executrix according to the will, . . 1792.30f

---$1852.99

This account was sworn to and subscribed before the register the same day that it was exhibited into the office. It was examined, passed and filed by the register, and notice was given by him of the settlement of the estate to all legatees and others concerned agreeably to the Act of Assembly, as appears by his certificate, under the seal of his office, dated March 2d 1830. It is clear then that she received and retained the whole of the personal estate of her husband after the payment of his debts and funeral expenses, and, so far as appears, her right to it has never been questioned. If she retained it, “ according to the will,” how did she retain it ? The bequest is in these words: “ And my wife is to have the whole of my personal property, to enable her to raise, support and provide for the younger part of my family as above stated, and at the death of my wife, what part of my personal property is then to be had shall be equally divided among my daughters.” Under this provision she had the right to retain the personal property as legatee because it was given to her by the will. It was not given to her as trustee, for no trust is created by the will. It was hers, as absolutely as if the motive inducing the gift or the purpose for which it was given had not been declared. It was hers, without any liability to account to her children for the use she made of it: Jauretche v. Proctor, 12 Wright 466 ; Paisley’s Appeal, 20 P. F. Smith 153. In retaining the personal estate then “ according to the will” she retained it as legatee. If she did not intend to take it, as legatee, she had no right to it whatever. She took it because she chose to take it, used it as her own, and never retracted her choice. She died in 1866, leaving, as the plaintiffs themselves have shown, personal estate amounting to $3092.47, after paying all her debts. Are her heirs then bound by her acceptance of the bequest ?

If she took the money as legatee and used it as her own, they clearly are. But it is insisted that her election must be evidenced by unequivocal acts clearly proven, and that the burden of showing that she elected to take was on the defendant; and that to be binding it must be made with a full knowledge of all the facts ; and this is unquestionably the law. By what acts more significant or unequivocal could she have evidenced her election, than by declaring that she retained the personal property according to the will,” using it as her own while she lived and never offering to return or restore it to the estate ? After so long a period she would, if living, be estopped by her own account from denying that she elected to retain it as legatee under the will. Was her election then made with a full knowledge of the facts ? She was the executrix of her husband’s will and knew the amount of his personal property. She knew all the real estate of which he was or claimed to be the owner — the plantation in Eindley township, containing one hundred acres, and the farm in Donegal township on which he lived at the time of his death. If the farm was not his — if it belonged to her, she knew the fact. She knew moreover all the dispositions made by the will; that the whole of the real estate was given to her as long as she remained a widow, and if she married she was to have her “thirds” in it during her natural life; that the plantation in Eindley township was devised to the testator’s son, John Rogers, subject to her “third” during her natural life, and the farm on which he lived, the land in dispute, to his son, Patrick Rogers, subject to her “thirds” during her natural life, and that she was to have the mansion house to live in so long as she remained a widow. She knew then all the facts on which her rights depended and which could have any influence in determining her choice. Did she know that if she accepted the bequest of the personal estate, she must conform to the other provisions of his will and that she would be estopped from claiming as her own the farm devised to the defendant ? The legal presumption is that she did. What then is there in the case to show that in retaining the personal property she did not intend to accept it as legatee under the will ? She lived on the farm from the time of her husband’s decease until her own death in 1866. Under the will the farm was hers so long as she remained a widow, and she had a right to live upon it; and the fact that she did is entirely consistent with her election to take “according to the will.” As already suggested she never offered to return the personal property, but retained it as her own. Nor did she dispose of the land by deed or will. All her acts are consistent with her election to take the property according to the will. But, it is insisted that her declarations made long subsequently to her acceptance of the bequest, show that she did not intend to take it as legatee; and that if she did, she was not bound by her election because it was made in ignorance of her rights. What then were her declarations as proved and offered to be proved by the plaintiffs ? When Isaac Deeds told her, some fifteen or twenty years ago, that she had better will the farm to Patrick, she said “ Never, never — he should not have the farm; she wanted all the children to become equal; if Patrick wanted it, he might buy it from her, the land was hers.”

The defendant is testified to have said — though he denied under oath that he ever had any such conversation — “ that his mother utterly refused to let him have the land, and he knew she never would; that she had' said that the land was to be divided among her heirs equally;” and it was offered to be proved, for the purpose of showing the character of her possession and title under the Statute of Limitations, that while in possession of the land she declared she “ was holding it as her own and that it belonged to her.” This is thesum and substance of the declarations as proved or as offered to be proved by the plaintiffs. Admitting that they were made, and giving to them their utmost effect, all they show is, that she claimed the farm as her own, and that she did not intend that the defendant should have it, but that it should be divided equally among her children or heirs. They have this extent, no more. They do not show or tend to show that when she elected to retain the personal estate, as shown by her account, that she did not intend to take it as legatee under the will, for nothing was said by her on the subject. If she accepted the bequest and never retracted her choice by an offer to return the money to the estate, her declarations made long afterwards, could not alter the fact of her election to take under the will or change the character and legal consequences of the act. If with full knowledge of the value and character of her husband’s estate and of all the facts necessary to a binding choice, she accepted the bequest, she could not after-wards, without a surrender of the property, claim that she did not intend to relinquish the right to the farm as owner: Bradfords v. Kents, 7 Wright 474. The question in that case was whether the widow was barred of dower by her election to take under her husband’s will. In delivering the opinion of the court, Mr. Justice Strong said: “ But a widow who after having become acquainted with all that is necessary for her to know in order to make a binding election, receives the gift conferred by her husband’s will and uses it as her own, is not at liberty to say she did not intend to relinquish dower. Her acts are inconsistent with any other intention. They are not equivocal. She has no right to the gift except as a legatee or devisee, and her taking and using it is an admission that she chooses to take under the will. It necessarily involves an election, and in the case supposed, a case where there is full knowledge, it bars dower. There are undoubtedly decisions that a widow may elect dower even after she has claimed and received the legacy or devise made to her, but she may not receive and hold the benefits conferred by the will of her husband after the extent of her rights has become known to her and then retract her election. In the case before us the widow was an executrix, and acted as such. She took out letters testamentary. It was her duty to inform herself of the situation and circumstances and value of her husband’s estate. She must therefore be presumed to have known. All the personalty was spread before her and she took a large portion of it. To no part of it had she any right except as legatee. She took it expressly under the will, used it as her own, and never afterwards until this suit was brought, retracted this act of choice. Not even yet has she returned or offered to return all that she claimed and received. * * * Her continued possession was rightful if she held as devisee ; it was wrongful if she had made no election, to take under the will. * * * And had her acts of taking and using the legacy and devise been of doubtful import, the lapse of time before she asserted any claim against the will is a pregnant and decisive fact. * * * I know of no case in which it has been held that a lapse of time of more than five years after acts done, which are usually treated as indicating an election, will not be binding upon a widow and prevent her denial of an election; though the acts were done in ignorance of her rights. Here are seventeen years without ignorance. It would be inequitable for us now to disturb the devisees in remainder or those claiming under them.”

These observations apply with equal, if not greater force, to the present case. Here the legatee kept and used the money which she elected to retain according to the will for a period of more than twice seventeen years, with a full knowledge of all the facts on which her rights depended, without retracting her choice or offering to return it, and, from the amount of personal property that she left behind her, died, it is to be presumed, with the greater part, if not the whole of it in her possession. What equity then have her heirs to set aside her election deliberately made, never retracted and evidenced by acts of the most unequivocal character ? Whether the facts constituted an estoppel was a question of law for the court. What fact was there then to be submitted to the jury ? Certainly not the fact whether she received and “retained the personal property according to the will.” This was, as already said, conclusively shown by her account. Nor whether she knew the situation, circumstances and value of her husband’s estate or the disposition which he made of it by his will. It was her duty to inform herself and she must therefore be presumed to have known. If her subsequent declarations that the land was hers and that she was holding it as her own would have set aside or shown that she had made no election, then whether she made such declarations or not, would have been a question for the jury. But her declarations cannot'have this effect if after such a lapse of time, she would if living be estopped from denying ’the fact of her election as shown by her account, and from questioning its validity, even if' it was made in ignorance of her rights.

But it is insisted that if she was estopped by her acceptance of the bequest, from setting up any claim that she then had to the land, that she was not estopped from acquiring title to it, if it did not belong to her husband, and that under the deeds executed by the heirs of her father John Hupp, Sr., in 1856, she acquired a good and valid title to the land. But the deeds, as the evidence shows, were not made for the purpose of conveying or vesting any new interest or estate, but for the purpose of assuring and furnishing written evidenee of the title which had long before vested in the heirs respectively by the parol partition of the estate between them. The right to their respective purparts vested when the partition was made, and was confirmed and made impregnable by half a century’s possession: Calhoun v. Hays, 8 W. & S. 127; McMahan v. McMahan, 1 Harris 376 ; Rider v. Maul, 10 Wright 376. The joint estate of the heirs in the land was severed and'divested by the partition, and they had no interest in each other’s purparts which they could convey. The deeds which they executed, were deeds of mutual release and quit-claim, and their whole purpose, as already suggested, was not to convey any new interest or estate, but to confirm and furnish written evidence of the title to their respective purparts which vested in them by the parol partition. It is clear that she could acquire no title as against the devisee in remainder by such a deed.

Again, it is contended that if she acquired no title under the deed, she acquired title under the Statute of Limitations by living on the land and claiming and using it as her own, for a period of thirty-six years after the death of her husband. If the land belonged to her husband, it is certain that she could acquire no title as against the devisee in remainder by adverse possession. Under the will of her husband, she had a life-estate in the land if she so long remained his widow, and as she did not marry, her possession could by no possibility be adverse as against the devisee. He had no right to its possession until her death or marriage, and until one or the other of these events should happen no adverse possession of the land could be taken or held as against him. If the land belonged to her it is equally clear that she could acquire no title to it by adverse possession. Nor could she avoid the effect of the estoppel arising from her acceptance of the bequest under her husband’s will, by holding the land during her life in accordance with the will. The whole question in the case is therefore one of estoppel; and the court below rightly instructed the jury that the plaintiffs, as the heirs of Elizabeth Rogers, were estopped from recovering the land of which she was alleged to be the owner, by her election to take the personal property bequeathed to her by the will of her husband.

The other assignments of error, therefore, are immaterial and need not be considered.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Mercer Mining and Manufacturing Co. versus McKee’s Adm’r.
    1. McKee, by written agreement, sold the coal on his farm to defendants for 10 cents for each ton ‘‘ of screened coal mined and removed from his land.” The defendants mined and screened and removed both lump and nut coal. Held, that evidence was inadmissible to show that “ screened coal ” is understood amongst coal merchants and miners to include only lump coal; or to prove the relative value and quality of lump and nut coal for the purpose of showing that nut coal is not “ screened coal,” in its common acceptation ; that at the time of the contract there was no market for nut coal, and that it was removed from necessity and did not pay expenses.
    2. The meaning of a term used in a contract and applied to an article in a trade or business, may be proved by persons engaged in it.
    3. The defendants having screened and removed both kinds of coal, were estopped to allege that either was not “ screened coal.”
    November 19th 1874.
    Before Agnew, O. J., Sharswood, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term 1874, No. 241.
    This was an action of covenant brought October 7th 1870, by James McKee against the Mercer Mining and Manufacturing Company. The plaintiff having died after the commencement of the suit, his death was suggested, and Alexander McKee, his administrator, substituted as plaintiff.
    The action grew out of the covenants in an agreement between James McKee of the first part and Hugh Wide of the second part; the defendants became the owners of the interests of Wick by virtue of the agreement, and subject to his liabilities under it.
    The agreement was dated August 27th 1863. By it McKee sold and conveyed to Wick, “ his heirs and assigns, all the mineral coal, limestone and iron ore, in, upon and under the farm in the township of Bindley, * * * containing 100 -acres,” with privilege to enter, dig out, remove, &c. * * *
    “ And the said party of the second part, by himself or assigns, agrees to pay to the party of the first part, his legal representatives or assigns, the sum of ten cents for each ton (of 2240 lbs.) of screened coal mined and removed from said lands herein described, and the price of rent of the ore mined and removed from said lands for such gross ton of 2240 lbs. shall be 'ten cents for screened or cleaned ore, and ten cents for 2240 lbs. of limestone; and the party of the second part is to pay all United States taxes on minerals mined.”
    The case was tried August 19th 1874, before Maxwell, P. J.
    The plaintiff gave the agreement in evidence.
    He called E. H’osack, who testified: “ I was in the employ of the defendants. I was dumping coal, attending to it after it was screened. One-fifth nut coal. Lump coal runs over first screen. Nut coal drops through to second screen. Nut coal was always shipped away. All shipped except what was used or sold in the neighborhood.”
    C. Meek testified: “ The quality of coal that passed over the second screen is nut coal;- part used and the balance shipped.”
    The plaintiff gave evidence on the sanie point, and also for the purpose of showing the amount of coal mined — and rested.
    The defendants then proposed to prove by A. Burnett and others, that the term “screened coal,” used in the contract of the parties, is taken and understood among coal merchants and miners, to include only lump coal, and not what is called and known as nut coal.
    That nut coal is not merchantable coal or screened coal, in the common and general acceptation of that term.
    Plaintiff objected to the above evidence:—
    1. Because the contract between the parties being in writing its construction is a question for the court.
    2. If not a question of construction for the court, it is one of fact for the jury to determine from the evidence.
    3. The case is one not requiring the testimony of experts.
    4. The evidence offered would contradict the written agreement of the parties.
    Defendants also proposed to prove the relative value and quality of lump and nut coal, for the purpose of showing that nut coal is not screened coal in the common acceptation of that term, and that at the time the contract was made between the parties there was no market for nut coal in this section, and that the same was removed from the bank as a matter of necessity and did not pay the expense of mining and marketing.
    Plaintiff objected to this offer because it was irrelevant.
    Both offers were rejected, and several bills of exception sealed.
    The defendants gave evidence as to the amount of coal mined.
    The plaintiff’s first point was:—
    As a matter of law the plaintiff is, by the express terms of the lease, entitled to recover ten cents for each and every ton of coal mined by the defendants, and remaining above either of the two screens described by the witnesses, provided the same was screened and removed for the purpose of sale or profit.
    The answer of the court was:—
    “ To the first point, we answer that the plaintiff has a right to recover ten cents for each ton of 2240 lbs. of screened coal and which has been mined and removed from the lands, and if you believe that there were two screens and two kinds of coal there screened called lump and nut coal, then he has a right to recover ten cents for each ton of 2240 lbs. of either lump or nut coal mined and removed from the lands.”

      The defendants’ points were:—
    1. The term “screened coal,” used by the parties in this contract, includes only merchantable lump coal that is screened, and not what is known as nut coal.
    2. The term “screened coal” includes only such screened coal as would satisfy a contract where one person had agreed to deliver a certain quantity of screened coal to another person at a stipulated price, to wit: merchantable coal screened ancl not nut coal, which is inferior in quality though screened.
    3. Nut coal is not screened coal in the general and common acceptation of the term as used in this district.
    These points were answered in the negative.
    The verdict was for the plaintiff.
    The defendants took a writ of error; they assigned for error the rejection of their offers of evidence and the refusal of their points.

      Griffith Mason, for plaintiff in error. —
    The meaning of words in a written contract may be shown by parol: Gibson v. Tyson, 5 Watts 34; Case v. Cushman, 3 W. & S. 544; Carey v. Bright, 8 P. F. Smith 70.

      McDermitt $ Miller, for defendant in error, furnished no paper book.
    January 4th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

The question here lies within a narrow compass. The defendant’s intestate owned coal lands. He entered into a written agreement with the plaintiff in error, by which, inter alia, the latter was to have the coal thereon, and agreed to pay therefor “ the sum of ten cents for each ton (of 2240 lbs.) of screened coal mined axxd removed from said lands.”

In this action the defendant in error claimed to recover for the coal only, which the company had actually screened and removed from the lands. The company showed that they had taken two sizes or kinds of coal. That in prepaxdng it for market they used two screens; by the use of one they prepax’ed “lump coal,” by the use of the other “nut coal.” They denied their liability to pay for the latter, and offered to prove that it was not known among coal dealers or miners as screened coal in the general acceptance of that term.

It is unquestionably true, as a general rule, that the meaning of a term or name given to any particular article in a trade or business, may be px'oved by persons engaged therein, when that term or name is used in a contract. This is admitted for the purpose of ascertaining the meaning with which the word was used by the parties. This rule of evidence is too well settled to be now controverted.

The question here, however, is as to the application of this law to the undisputed facts in the case. The plaintiffs in error did screen the nut coal, and did ship it to market. They had no right to screen and remove any coal without paying for it. If the contention was whether the company had omitted to screen and remove the largest practicable quantity of coal for market, then the relevancy of the testimony offered would be evident. So if the defendant in error had denied the right of the company to screen the nut coal, and had forbidden its removal, the evidence would have been admissible. Here, however, the company had elected and determined what coal they would screen and remove. The defendant assented to it; he accepted and ratified the act; the the minds of the parties thus met; the act of the company made it screened coal in fact; the defendant confirmed it; the company is now estopped from controverting it; they cannot now show that it ought not to have the name and character which their acts have given to it. Nor would evidence to prove that when the contract was made there was no market in that vicinity for nut coal, and that it did not pay the expenses of mining and marketing, change the result. Whether it was then and there in demand is unimportant. It has since been in demand and has been removed and sold. The question whether it was mined and marketed at a loss or at a profit to the company, is wholly irrelevant. The contract recognises no such distinction. The liability of the company to the defendant for the coal taken cannot be affected by it.

We see no error in the rejection of the testimony, nor in the answer and charge of the learned judge.

Judgment affirmed.