author: Mr. Justice Mercur

text:
    Spencer and Newbold’s Appeal.
    1. Land was conveyed to Newbold and another, to hold in trust, in undi-l vidod twelfths, Smith owning two-twelfths; the trustees were authorized, on the request of a majority of the cestuis que trust, to sell the land discharged from the trust and divide the proceeds proportionably amongst them : Held, that Newbold assumed all the duties and obligations of a trustee at the inception of the title.
    2. Smith, being the owner of one share in 1841, sold it by parol to Newbold, who paid the purchase-money; no deed was ever made. In 1855, after Smith’s death, the land was conveyed, by the authority of a majority of the cestuis que trust, to an improvement corporation, the stock being proportionably divided; the shares of stock representing one-twelfth “ to be delivered to the trustees for the owner thereof:’’ Held, that Newbold held the stock as trustee for Smith’s representatives, as he had held the share of the land.
    3. In 1869 Newbold obtained for Spencer from Smith’s widow and heirs conveyances of all their interest in the land, without disclosing his purchase from Smith, or that the land had been converted, or the value, or other circumstances: Held, that Newbold being trustee for Smith’s representatives and agent for Spencer the conveyances could not stand.
    4. A trustee purchasing from his cestui que trust must show that he made the fullest disclosures of all he knew as to the subject and that the price he paid was adequate.
    .5. There cannot be a valid parol sale of land amongst tenants in common in possession.
    6. The bill averred that the plaintiff owned the land as representative of Smith ; the answer averred that Newbold had bought it from Smith and received a written title, which he had lost. On the hearing, Newbold, as a witness, said he could not say that he ever had a deed, &c.: Held, the defendant’s own testimony being in conflict with the answer, that it was not conclusive, and it was insufficient to prove the execution of a deed.
    7. The effect of a party’s testimony in conflict with his answer is to impeach and overthrow the answer.

      January 11th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the decree at Nisi Prius: Of July Term 1870, No. 23. In Equity.
    The bill in this case was filed June 8th 1870, by Louisa Y. Smith, against Howard Spencer, William M. Spencer, John L. Newbold and The Black Creek Improvement Company. By leave of the court an amendment to the bill was filed December 15th 1870 and another September 27th 1871. The bill set out:—
    1. By deed of January 11th 1836, William L. Newbold conveyed to defendants, William M. Spencer and John L. Newbold, five tracts of land in Sugar-loaf township, Luzerne county, in trust for various persons, amongst whom was Nathan Smith, his interest being two undivided twelfths.
    2. By deed of June 1st 1837, Nathan Smith and wife conveyed to John L. Newbold one-half his interest.
    3. Nathan Smith died June 17th 1849 intestate, still owning one-twelfth, leaving to survive him his widow the plaintiff, a son, Sidney Y. Smith, and two grandchildren, Sidney Y. Stratton and Mary Stratton.
    4. The defendants William M. Spencer and John L. Newbold as trustees, on the 22d of January 1855, conveyed part of the tracts to the defendants, The Black Creek Improvement Company, for shares of stock of that company.
    5. 6. In consequence of this conveyance, the plaintiff, her son and two grandchildren, above mentioned, became entitled to one-twelfth of the stock. Mary Stratton died October 17th 1863 and her interest in the stock and dividends vested in her brother, Sidney Y. Stratton.
    7. On the 31st of January and 1st of March 1870, ”all the interest of Sidney V. Smith and' Sidney Y. Stratton was assigned to the plaintiff.
    8. The plaintiff therefore became entitled to about 4083 shares of stock and the dividends declared on them.
    9. The company on the 8th of February 1870, issued to. W. M. Spencer and J. L. Newbold a certificate for 3500 shares, and no certificate had been issued for the remaining 583 shares.
    10. The plaintiff, on the 18th of May 1870, bad requested W. M. Spencer and J. L. Newbold, trustees, &c., to transfer the shares and pay her the dividends which had come into their possession ; Newbold declined on the ground that the stock was claimed by the defendant Howard Spencer.
    11. She had requested the company to issue her a certificate for the 583 shares and pay her the dividends.
    12. Howard Spencer falsely claimed to be entitled to the stock and had demanded of the other defendants that a certificate be issued to him.

      13. (1st Amendment.) Early in 1869, Newbold, acting for Howard Spencer and in concert with him, by concealment of his purpose and without disclosing to plaintiff that the one-twelfth interest in the land had been converted into alike interest in stock, and assuring her that neither she nor her son nor her grandson had any substantial interest, and not giving her any information on the subject, fraudulently induced her, in the absence of any adviser, for $3000 to convey to Howard Spencer all her interest in the lands in the townships of Foster, Dennison, Hazle and Butler, in Luzerne county, and to procure from her son and grandson conveyances of all their interest, &c., in those lands to Howard Spencer, with the fraudulent intention thus to secure to Howard Spencer a title, &c., to the stock. At the time of the conveyances and for a long time afterwards neither she nor her son nor grandson had any knowledge that such right, either in land or stock, belonged to them; and Newbold, though trustee, gave her and them no information, but studiously concealed their interest.
    14. (2d Amendment.) Newbold having claimed that in 1841 he had purchased from Nathan Smith his one-twelfth interest in the lands (which plaintiff denied), if such purchase was made she was entitled to the share in the stock which she claimed, because on the 5th of Jannary 1854, a sheriff’s deed for all Newbold’s interest in the lands conveyed to the company was made to T. M. Mitchell, who, on the 15th of May 1854, conveyed thé same to George H. Thomson, who died in 1863, and whose executrix and sole legatee conveyed it on the 24th of May 1871 to the plaintiff.
    The prayers were:—
    1. For discovery.
    2. Against W. M. Spencer and Newbold for an account and for a transfer of the stock and dividends belonging to the one-twelfth interest.
    3. Against the company for an account and for a transfer of the stock and dividends and a decree to permit W. M. Spencer and Newbold to transfer the stock to the plaintiff.
    4. That Howard Spencer be enjoined from making any claim to the stock or dividends.
    5. For other relief.
    The answer of The Black Creek Improvement Company was filed October 3d 1870.
    Amongst other things the answer stated that the one-twelfth interest in question was represented by 3500 original shares and 583 shares of reserved stock and by $3604.70, the amount of three dividends declared before the filing of the bill, and $1020.75, one dividend declared since; that a certificate for 3500 shares was issued February 8th 1870, to W. M. Spencer and J. L. Newbold, trustees, and that the 583 shares had not been issued nor the cash dividends paid, but they stood on the books credited to “ one-twelfth originalthat the company were simply stakeholders and not interested in the result, and prayed to be reimbursed out of the fund for expense, &c., incurred by them in the litigation.
    John L. Newbold by his answer, denied that Nathan Smith at the time of his death or the plaintiff and her children after-wards were entitled to the one-twelfth interest; averred that he (Newbold) had purchased it from Nathan Smith in his life. He averred that Nathan Smith, by deed of January 11th 1836, became entitled to two-twelfths of the trust estate; that in the following year be purchased from Smith one-twelfth and sold it in 1854. In March 1841, Smith sold him one-twelfth for $700, its full value, which he paid ; that until the 22d of January 1855, when the land was converted into stock, he publicly exercised all the rights of ownership -over the interest, paid the proportion of taxes from 1841 to 1855, and that Smith from 1841 until his death never claimed or exercised any rights of ownership; from 1841 to 1855 the title to the land was in the trustees, and Newbold held for himself without question from Smith or any one; that after the conversion, W. M. Spencer and Newbold held the one-twelfth in trust for Newbold as the owner, and as such he was elected a director in 1855 and so continued for a number of years; his claim of such ownership was known to the directors, but he was unable to produce his written title ; “ he did receive such title from Smith at the time he made the purchase, but had lost or mislaid it.” He had not then the proofs of his purchase and title, he averred he was ready to produce them in evidence. On the conveyance of the land, the directors ordered 38,500 shares to be transferred to the owners of eleven-twelfths of the interest and 3500 shares to a trustee for the owner of the remaining twelfth; Newbold claimed the 3500 shares ;' he averred thatthey belonged to Howard Spencer who was entitled to the 583 shares and the dividends. Smith died insolvent, largely indebted to Newbold, who, at the time of the conveyance to the company, held a judgment against him, w’hich would have been a lien on any interest Smith might have had in the land ; Newbold, relying on his purchase, did not levy on this interest. Howard Spencer was a director and secretary and treasurer of the company; he knew of Newbold’s claim of the one-twelfth, his payment of taxes, &c. In 1868 Newbold sold this interest to Howard Spencer, who requested him to obtain quit-claim deeds from the widow and heirs of Smith; Howard Spencer authorized Newbold to pay $3000 for that purpose. After interviews with plaintiff an agreement under seal was made by her with Howard Spencer, by which she agreed to release “ her dower, right, title and interest in any tracts of land in the townships of Foster, Dennison, Hazle or Butler in Luzerne county, owned or claimed by the said Nathan Smith,” &c., and covenanted to use her best endeavors to procure from her son and grandson, heirs of Smith, a quit-claim deed to Howard Spencer for their right in those lands, Howard Spencer to pay $3000 on the delivery of her release and the quit-claim deeds. Plaintiff then knew that her husband owned lands and admitted in her bill that she had joined in conveying to Newbold one-twelfth interest in them. Newbold told plaintiff that he had delivered to Howard Spencer a quit-claim for his own interest; he read the agreement to plaintiff before she signed it, and also the deeds to be executed by his heirs, which she agreed to forward to them; he furnished her envelopes for the deeds ; she wrote to her son and grandson enclosing them, gave them to New-bold to mail, which he did; the deeds were returned to plaintiff, and her release of dower was delivered to Newbold about March 18th 1869, when he paid her $1500, which by her direction he gave to John Sparhawk, her agent, in April 1869; the other deed was delivered to Newbold ; he then gave her Howard Spencer’s check for $1500.
    The son was a lawyer; he formerly lived in Philadelphia, and in 1841 and subsequently kept his father’s books; was conversant with his father’s affairs and knew of his interest in these lands; there are entries in the books in the writing of the son showing his knowledge of the purchase by Newbold from the father of the one-twelfth interest; the son had been living in California and practising law there since 1851 or 1852.
    In answer to the thirteenth paragraph of the bill (1st amendment), he denied the allegations of “concert,” “concealment of purpose,” “fraudulent inducement,” or “fraudulent purpose.” He further said: In January 1869, on behalf of Howard Spencer, he visited the plaintiff, telling her he came on Howard Spencer’s business; she asked if it was James S. Spencer whom she had known; he told her he was speaking of one of his sons, who had coal-lands in Luzerne county, which her husband and Newbold had once owned; that disputes had arisen about the title; Spencer wished to purchase outstanding claims ; the lands were near Hazleton, Luzerne county, and had no connection with the Wurtz lands. She replied she knew her husband had owned lands there, but thought he had sold them all; Newbold said her husband had told him so before his death; Howard Spencer wished to purchase from him (Newbold) and Smith’s heirs any possible right that might be in them; he wished only quit-claim deeds without any warranty, and would pay for such deeds something worth while ; the lands were valuable; if it settled the title, Spencer could well afford it; no sum was named; she expressed willingness to do anything she could; he particularly explained to her that her only interest was her dower in the land ; Spencer particularly wished quit-claim deeds from the heirs; she told him. who they were and shortly afterwards gave him a written statement of them ; he after-wards told her that Spencer would pay $3000 for her release of dower and the quit-claim of the heirs; he told her the largest part of the money would belong to the heirs ; and he hoped they would be liberal to her ; she said they would; he asked her to advise with her business friends; she said since the death of Charles Wurtz, she had no one to consult but her sonin San Francisco; Newbold told her that her son was the one to consult; he was a lawyer, conversant with his father’s affairs, there was ample time to do it, the business could not be concluded without his sanction. On the 1st of February she executed the agreement with Spencer and received the counterpart executed by him; said she would write to her son and grandson ; Newbold told her Spencer had written to her son. When he gave her Spencer’s cheek for the first $1500 she requested him to hand it to Mr. Sparhawk to invest for her apd to say nothing to him about the transaction; he enclosed the check to Sparhawk; the second $1500 were paid her by Spencer’s check and she requested him to giveit also to Mr. Sparhawk to beinvested; he enclosed it to Sparhawk. Smith’s trunks had been sent to New-bold’s office at her request; he told her in March that he had examined them, and found nothing of value in them, but that Smith’s books showed clearly that he had sold all his interest in the lands. At the time of the sale to Spencer and for many years before, New-bold believed that this one-twelfth belonged to him; he did not know until after the transaction was closed, when he saw for the first time a brief of title prepared by Mr. Patrick by direction of the president of the company; that the title stood on the records of Luzerne county in the name of Nathan Smith — it had been suggested that it might be in Smith, but there had been much confusion in the title of many of the shares for a number of years — when in 1868 he agreed to sell to Spencer both were ignorant how the title stood ; during the negotiation with plaintiff they at one time thought it might be in the heirs of John Troubat or George H. Thomson. Newbold believing in equity that it belonged to him made a sacrificing sale to Spencer to get his aid in clearing up disputes by purchasing interfering claims; the allegation that New-bold concealed his purpose from her was “false and unfounded,” she had ample time to consult her friends between the last of January and the 26th of March when the deeds were delivered.
    In answer to the fourteenth paragraph of the bill (2d amendment) Newbold said, that in 1837 he sold one of his two shares to Dr. James J. Porter and one to Henry Seybert; Porter did not record his deed, and in November 1849 he conveyed his share to Thomson; he did not record either deed; Smith’s deed of 1837 to Newbold was also unrecorded; Mitchell, in 1854, sold Newbold’s right at sheriff’s sale and became the purchaser; the effect of this sale was to divest Thomson of his title to the twelfth he bought from Porter and also to. divest Newbold’s title to the share deeded to him by Smith as well as the share Newbold had bought from him in 1841, that in controversy;- shortly after the sheriff’s sale, Newbold learned of it and procured Mitchell to re-convey to him on the payment of $2000 ; Thomson lent Newbold $500 to make the payment ; by Mitchell’s conveyance Newbold became re-vested with his two-twelfths and also of the disputed twelfth for the use of Thomson ; to secure Thomson for his-loan a deed was made to him which was not absolute, but as security for the loan. On the 7th of'May 1854, Pardee and Fell bought three shares through New-bold ; Thomson agreed to sell one; Newbold agreed to sell the one conveyed by Smith in 1837, then held by Thomson as collateral, and Seybert agreed to sell one ; Mitchell made the deed to Thomson under Thomson’s direction ; out of the consideration received from Pardee and Fell, Newbold paid Thomson his advance; Newbold received in all for that one share $5063. Thomson never purchased any share from Newbold nor claimed any interest in one belonging to him.
    A replication was filed and the case was referred to John B. Gest, Esq., as examiner and master.
    The facts as found by the master are as follows :—
    The original trust deed of 1836 authorized the trustees, on the request of a majority of the cestui que trust, to sell the trust property discharged of the trust and divide the proceeds amongst the parties interested. Some time in the same year Robert Jarden conveyed to Nathan Smith two other twelfths, John L. Newbold also owning two-twelfths under the original trust deed. In 1837 two of the tracts were conveyed to the Sugar-loaf Coal Company. On the 1st of June 1837, Smith conveyed to John H. Newbold one of his original shares ; the deed remained unrecorded until March 24th 1864 ; July 27th 1837 Smith conveyed to W. L. New-bold the Jarden shares; November 24th 1838, W. A. Budd conveyed to Smith half a share, which, January 25th 1839, Smith conveyed to John Troubat; he reconveyed it to Smith February 1st 1840, and May 11th 1840 Smith conveyed it to James S. Spencer; all the deeds executed by Smith were witnessed by his son, Sidney V. Smith. The record shows no deed of any purchase or sale by Smith since this conveyance to James S. Spencer. There were numerous sales and changes of ownership up to the formation of The Black Creek Improvement Company; at that time, according to the record, the only share in the name of any original cestui que trust was that in the name of Nathan Smith, the one now in dispute.
    J. L. Newbold and Smith were connected by marriage and had for a long time been intimate and extensively engaged in speculations; they were negligent in conducting their business; both became insolvent in 1841 and so continued. At the time of Smith’s death in 1849, he was largely indebted to J. L. Newbold. The books of Smith produced in evidence in 1841 and previously were in the handwriting of his son; subsequently they were in the handwriting of Smith himself.
    In an account in the day-book, headed “ Black Creek Coal Company,” are these items:—
    “ March 4th 1841. — Cash Dr. to Black Creek Coal Co. 1 share sold to J. L. Newbold, — $700.”
    “ March 17th 1843. — Profit and loss. Dr. to sundries. Black Creek Coal Co. Gave my interest tp J. and W. L. Newbold i for adjustment of old accounts. I did not think there was any \ more value in it, — $2520.”
    In Smith’s cash-book the $700 are entered in Smith’s handwriting as actually received.
    The master therefore found that Smith in March 1841, sold the share in dispute to J. L. Newbold for $700, and received the purchase-money.
    Newbold as one of the trustees paid taxes on all the lands from the beginning to the transfer to The Black Creek Company and apportioned the amount amongst the several owners. Newbold testified that after 1849, the time of Smith’s death, he paid the taxes on Smith’s share on his (Newbold’s) own behalf. Apportionments produced by him for the taxes paid in 1844, 1846 and 1848 did not show Smith’s name, although during those periods the record title of the share in dispute was in Smith.
    Some time after the agreement of February 1st 1869, a trunk containing papers of Nathan Smith was sent at the plaintiffs instance to Newbold; she had previously requested him to examine the papers to ascertain if there were evidences of ownership of property by Mr. Smith. Newbold returned the trunk in April or May following, retaining two papers which were in it; he testified that when he returned the trunk, he did not know that he had the papers out. One of the papers was a contract relating to some Richmond lots. The other was endorsed, “ Owners of Black Creek.”
    This paper contained a list of names as follows:—
    “ H. Seybert,......3
    J. S. Spencer,.....2
    A. G. Waterman,.....1
    W. Trotter, . . . . . • 1
    Dr. Porter, ...... 1
    Troubat, ...... 1
    W. L. N. — J. L. N., .... 3
    12 ”
    The list was in the handwriting of J. L. Newbold; the endorsement was in the handwriting of Smith.
    The names of the owners and the numbers opposite their names agree with the apportionment of taxes by Newbold in 1844. Except that in the apportionment, the entries are “ W. L. New-bold 1J-,” “ J. L. Newbold 1J,” instead of the initials as in the list.
    The master was of opinion that this paper unexplained was not an admission that Smith had no interest in the property in 1844.
    The master found the transactions in relation to the sheriff’s sale under Mitchell’s execution against Newbold, and the conveyance to Thomson, &c., substantially as stated by Newbold in his answer; that two shares, undoubtedly Newbold’s, passed by the sheriff’s sale and also the share in dispute, if it was then vested in ■Newbold,' and that the title held by Thomson by virtue of Mitchell’s deed to him was solely the appointment of Newbold and for his own use.
    On the 1st of February 1869, Newbold executed and delivered a deed to Howard Spencer. It recited an agreement made in 1841 between himself and Smith by which Smith agreed to sell him for the consideration of $700 a twelfth of three tracts of land in Luzerne county, and that Smith died without executing to him a deed, although the consideration money had been paid to him; and in consideration of “ one dollar * * .* and for other good causes and considerations,” conveyed to Spencer all his “right, title and interest” in this share, Newbold stipulating that he should not be “ liable to make good the title to the premises, but only to transfer to Howard Spencer all my right, title and .interest therein.”
    Newbold in his testimony stated he believed Smith made him a deed for the share in dispute; he had searched for it for years and had never been able to find it. He would not like positively to say that a deed was made to him by Smith, but his belief was that there had been.
    On cross-examination, in answer to the question, who wrote the deed which he thought he had for the share in dispute, he said, “ I don’t know that any deed was ever written, and of course I can’t say who wrote it. I have no recollection on the subject.” At a subsequent cross-examination, he said that he had not found any instrument of writing of Smith relating to the share in dispute; that he could not say certainly that any such instrument was ever executed; he believed that there was; he had a distinct recollection of making the purchase arid paying for it, but no recollection whether he got a deed or written agreement or not for it, but believed that he had and had lost it. s
    After the organization of The Black Creek Company and the conveyance of the trust land, certificates were issued for 38,500 full paid shares to the owners of eleven-twelfths of the property; 3500 shares were directed to be delivered to W. M. Spencer and J. L. Newbold in trust for the owner of the remaining twelfth; about three years afterwards the reserved stock was directed to be distributed pro ratd amongst the stockholders. After the quitclaim deeds of Smith’s widow and heirs to Howard Spencer, he claimed to have the stock representing the disputed one-twelfth issued to him. On July 13th 1869, a committee on the subject reported that the plaintiff had served a notice on the company, not to issue the stock to any one but herself and the heirs of Smith. On the 8th of February 1870, the directors ordered that 3500 shares be issued to W. M. Spencer and J. L. Newbold ; they were so issued and remained in the name of those trustees; the 583 of reserved stock continued credited on the books to “ one-twelfth original.”
    The dividends declared by the company, up to July 15th 1872, were equal to $2.20 per share.
    The master found the transactions with Mr. Smith substantially as set out in the pleadings. The real consideration for the deed of Feb. 1st 1869, from Newbold to Howard Spencer, heretofore referred to, originally was that Spencer should advance whatever might be necessary to pay for any outstanding record title, so as to secure the issuing the stock for the one disputed share and then divide equally between them the remaining balance. This agreement as to the consideration was afterwards modified, so that Spencer was to have the stock at $4 per share ; and after deducting the amounts expended, the balance was to be divided between them. They thus became partners in the transaction. The deeds from plaintiff and the heirs to Spencer described the property as “ certain tracts of land in the townships of Foster, Dennison, Hazle or Butler,” these being the names of townships formed out of the old township of Sugarloaf.
    Newbold never informed plaintiff that the land had been converted into stock and he said nothing to her about the Black Creek Improvement Company ; neither she nor the heirs knew anything of this company or of the conversion of the land. The plaintiff was eighty-two years of age at the time of her agreement. For nine or ten years John Sparhawk had attended to her pecuniary affairs and held powers of attorney from her. On the day he received the second check she told him only that the money came from land of her late husband ; Newbold had previously told him that the money arose from the sale of a claim of her husband and heirs. Mr,s. Smith had joined her husband in conveyances of interests in the land in 1837, 1839 and 1840 and therefore knew of the property and how it was held.
    During the negotiations with plaintiff, both Newbold and Spencer were uncertain whether the title to this share was in Smith’s heirs, or in Troubat or Thomson. Mrs. Smith made no inquiry as to the matter until after she had received the consideration in the end of March. In her letter dated March 29th 1869 to her son, she told him that Mr. Newbold, an old friend of his father, had negotiated the sale of some lands she owned in Luzerne county, &c., and that the son’s agreement was necessary. The son, having kept his father’s books and having himself made the entry of “share sold J. L. Newbold $700,” must have known of the father’s interest in the property in question; he testified that he did not believe he knew of his father having owned the property in question; if he had known he had forgotten it. If Smith died seised of one share of this land, the plaintiff’s dower interest at the time of the agreement was worth about $3000.
    The master found in conclusion :—
    “1. That Smith on the 4th of March 1841, sold this share to Newbold for $700, which at that time was a fair price for it.
    “ 2. That Newbold acquired from Smith no title to the share that would avail him either as against the Statute of Frauds or under the Statute of Limitations.
    “ 3. That Spencer was affected by the imperfections of New-bold’s title and that the conveyance from Newbold to him gave him no better title than Newbold had ; they were partners in the share.
    “ 4. The stock at the time of the execution of the plaintiff’s transfer to Spencer was worth from $16,000 to $30,000. The stock having arisen from the sale of land, a deed for the grantor’s whole right and interest in the land would pass the stock ; Newbold stood in a fiduciary relation to the plaintiff and the heirs; it was his' duty to disclose the change in- the condition of the property ; even if there had been no other change than the great increase in value, he was bound to disclose that as well as the fact that when he was ostensibly buying for another he was himself interested in the purchase ; Spencer having made the trustee his agent was affected as Newbold was and was in no better position than he. The deeds from the plaintiff and heirs to Spencer were not good as deeds of confirmation of the sale made by Smith to Newbold in 1841. If as confirmation, the grantors should have been informed of the circumstances which required a confirmation and they having no such information, the deeds were no more effective under the circumstances as a confirmation than as original conveyances. Besides no estate at all having passed the parol sale from Smith to New-bold there was nothing on which the confirmation could operate.
    “ 5. The indebtedness of Smith to Newbold had no other bearing than to explain the motives and acts of the parties and as a reason why Newbold might have believed that he was entitled to the transfer that he had obtained. The indebtedness could not in any way affect the title to the share in the land or stock.”
    The master therefore decided that “ the release of dower and quit-claim deed from the widow and heirs of Nathan Smith are invalid, and passed no interest in the stock in question to Howard Spencer; they must therefore be given up and cancelled or a reconveyance be ordered.”

      He was further of the opinion that the $3000 paid by Spencer should be repaid to him; the costs of suit to be paid by those defendants interested in the purchase; The Black Creek Improvement Company being stakeholders to be paid $306.60 expenses incurred by them from the litigation.
    He recommended a decree as follows :—
    1. That the defendants, Willian M. Spencer and John L. New-bold, trustees, be ordered and decreed to transfer to the said plaintiff, all shares of stock of the said The Black Creek Improvement Company, standing in their names as trustees, and belonging to or produced by the said one-twelfth equitable interest of the said Nathan Smith, deceased, in the lands conveyedto The Black Creek Improvement Company.
    2. That the defendants, The Black Creek Improvement Company, be decreed to account for and transfer, or to permit the said trustees to transfer to the said plaintiff, all the shares of stock on the books of the said company credited to the said one-twelfth original share of the said Nathan Smith, deceased.
    3. That the said defendants, The Black Creek Improvement Company, be ordered and decreed to pay to the said plaintiff, all dividends standing on the books of the said company to the credit of the said shares of stock produced by or belonging to the said original one-twelfth share of said Nathan Smith in said lands.
    4. That the said plaintiff be ordered and decreed to pay to the said defendant, The Black Creek Improvement Company, out of the said dividends at the time of the payment thereof, the sum of $306.60, for the expenses incurred by the said The Black Creek Improvement Company in this suit. And that said plaintiff do further pay out of the said dividends, to Howard Spencer, the sum of $3000, with lawful interest thereon, from the 26th day of March A. D. 1869, to the time of such payment.
    5. That the said Howard Spencer be perpetually enjoined from at any time setting up or making any claim to the said shares of stock resulting from the aforesaid one-twelfth interest, lately belonging to Nathan Smith, deceased, or to any interest therein or portion thereof, or the dividends thereon, beyond the said sum of $3000, and interest thereon.
    6. That the said Howard Spencer (on the repayment to him of the sum of $3000, with interest, as aforesaid) be directed to reconvey to the said widow and heirs of the said Nathan Smith, the premises released and conveyed to him by them.
    7. That the said defendants, Howard Spencer and John L. New-bold, pay the costs of this suit.
    The plaintiff and Howard Spencer and John L. Newbold, defendants, filed exceptions to the master’s report.
    The plaintiff’s exceptions were to the master’s findings of fact and reporting that the plaintiff was bound to repay to Spencer the $3000 paid by him.
    The defendants excepted to the master’s findings of facts, and his conclusions of law; also to the decree recommended by him.
    The court at Nisi Prius (Mr. Justice Shaeswood) dismissed the exceptions and entered the decree recommended by the master.
    The plaintiff and defendants respectively appealed to the Supreme Court in banc ; and assigned the overruling of their exceptions and entering the decree for error.
    6r. W. Biddle and II. M. Phillips (with whom were (x. Biddle and B. Webster), for Spencer and Newbold.

      B. N. Wilson, for Smith.
    May 8th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

In the lifetime of Nathan Smith, he was entitled to an undivided one-twelfth part in certain coal-lands. The legal title to the land was in John L. Newbold and William M. Spencer. The widow of Smith filed this bill, alleging that Newbold, acting for himself and Howard Spencer, fraudulently procured from her, and from the heirs of her late husband, a conveyance of this interest in the lands. The master found the allegations to be true. The court sustained the finding. Thereupon, inter alia, it decreed a transfer to Mrs. Smith of the property in its changed form, on the payment to Howard Spencer of the sum which he and Newbold had paid, with interest. From this decree each party appealed.

The controlling questions for consideration are, whether Newbold held the property in trust at the time of procuring this conveyance, and if so, did he conceal from Mrs. Smith the true condition of the title and property to such an extent as to be guilty of fraud in its procurement ?

In 1836, five tracts of land, situate in Luzerne' county, were conveyed to William M. Spencer and said Newbold, in trust as to certain undivided twelfth parts or shares .thereof, for the use and benefit of themselves and of several other persons therein named, and inter alia two-twelfths thereof for said Nathan Smith. A proviso in the deed authorized said trustees at any time on the request in writing of a majority in number and in trust of the eestuis que trustent, to sell and convey the premises discharged of the trust, and to divide the proceeds among the eestuis que trustent in the proportion in which they held the shares in the land. Thus New-bold assumed all the duties and obligations of a trustee at the inception of the title.

Subsequently these shares or twelfths were the subject of sale and purchase. Nathan Smith bought and sold- several shares. Finally, in 1841, lie appears to have been the owner of one share or twelfth only. He died in 1849.

In 1854, The Black Creek Improvement Company, one of the defendants below, was incorporated by an Act of the Legislature. John L. Newbold was therein named as one of the incorporators. By deed of 22d January 1855, Spencer and Newbold, said trustees, conveyed to said company defendant, three of said tracts of land, being all that remained unsold, having been authorized and required so to do by a majority in number and in trust of the cestuis que trustent in the property. In May of the same year, certificates of shares of full paid stock were directed by the company to be issued to the owners of eleven-twelfths of the property, and 3500 shares of the stock to be delivered to William M. Spencer and John L. Newbold, trustees, for the owner or owners of the remaining one-twelfth. In July 1869 Mrs. Smith notified the company “ not to issue the stock to any but herself and the heirs of Nathan Smith, deceased.” Nevertheless, in February 1870, the company did issue certificates for these 3500 shares of stock to William M. Spencer and John L. Newbold.

The agreement of purchase from Mrs. Smith was made in February 1869, and consummated by deeds made in the same month, and in the month of March following.'

In the yews 1869, 1870, 1871 and 1872 the company declared dividends in the aggregate of 22 per cent., or $2.20 per share.

It is claimed, however, by the defendants in the bill, that New-bold did not hold this share in trust at the time of his purchase from Mrs. Smith. It is alleged that he was then the owner in his own right by virtue of a purchase made by him in 1841, of Nathan Smith. The master thus far sustained this allegation as to find that Newbold did purchase by parol at the time alleged and paid the purchase-money.

Although the fact of purchase is stoutly denied, yet we do' not see sufficient evidence to reverse this finding. We therefore assume it to be correct. But the master further found that Nathan Smith did not execute any deed or instrument of writing conveying the same.

This finding of fact is alleged for error inasmuch as in Newbold's answer he distinctly avers he had received a wi'itten title from Nathan Smith for the share in dispute ; that the answer was distinctly responsive to the bill, and it had not been contradicted by any witness of the plaintiff in the bill.

If the case rested on the bill and on the answer of Newbold alone, or if his subsequent testimony had not contradicted his answer, there would be great force in this defence so far as it applied to himself. The answer, however, would not have availed Spencer, who had no knowledge of the alleged purchase, except what he received from Newbold and answered on information and belief only. Besides, in the deed from Newbold to Spencer of the 1st of February 1869, conveying this one-twelfth share to the latter,- it is distinctly averred, “whereas the said Nathan Smith died without executing to me a deed for the said one-twelfth share or interest.”

It is a significant fact that this deed bears the same date as the contract between Spencer and Mrs. Smith, which by a more general description included the same share. Thus it clearly appears that Spencer accepted a conveyance from Newbold of the land in question under an express declaration, that Nathan Smith had never executed a deed for said premises. As further evidencing the knowledge of the parties to the conveyance, and fully to protect Newbold, he therein declared “nothing herein contained shall be construed so as to render me liable to make good the title to the premises hereby granted, but only to transfer to the said Howard Spencer all my right, title and interest therein.”

On testifying before the examiner, April 18th 1872, Newbold said, “ I believe he made me a deed for it; I had searched for tha¿t deed for years ; I have never been able to find it.” On a further examination, May 29th 1872, he answered: “ I do not know that I ever had a deed, I am strongly impressed that I had.” Then to the question, “who wrote the deed which you say you are impressed you had for the share in dispute ?” he answered, “I don’t know that any deed was ever written, and of course can’t say who wrote it; I have no recollection on the subject.”

Thus, as a witness, he frittered away on this point all certainty in his answer as a party. If, when subjected to the test of an examination, he could not swear that he ever had a deed; nor that he had ever seen one, nor that one was ever written, and that he had no recollection on the subject of a deed, it is very clear the master was correct in finding the evidence insufficient to prove the execution and delivery of a deed. We- may concede the correctness of the remark made by Chancellor Green in Brown v. Buckley, 1 McCarter (N. J.) 295, as to the general effect of the answer; yet here Newbold, the witness, substantially impeached and overthrew the answer of Newbold the party.

The positive declaration made in his deed, under seal, some two years before his answer, harmonized with his solemn oath, made nearly two years after his answer. When a party is permitted to testify, and does testify in conflict with his answer, it will not do to hold that his testimony shall be disregarded and his answer stand wholly unimpeached. Precisely how far the rule should be modified, now that a party may be a witness in his own behalf, it is not necessary at'present to indicate. We see no reason to dissent from the conclusion of the master, that no deed was ever executed by Nathan Smith for the share in question.

Nor do we discover any error in his conclusion that no such exclusive possession was taken by Newbold in pursuance of the contract as to take the case out of the Statute of Frauds. As trustee before the sale he paid the taxes on the land. They were unseated and no one was in actual possession. He merely continued to pay the taxes as before. No change of possession was taken in consequence of his purchase. Payment of the purchase-money alone is insufficient to take the case out of the statute. At most, however, this was a purchase by one tenant in common of the interest of his co-tenant. There can be no valid parol sale of lands among tenants in common in possession, as there cannot be any such delivery of possession as will take the case out of the statute: Workman v. Guthrie, 5 Casey 495; Chadwick v. Felt, 11 Id. 305; Hill v. Meyers, 7 Wright 170; McCormick’s Appeal, 7 P. F. Smith 54. Nor was there any such actual, hostile, continued and exclusive possession in Newbold, as to give him title under the Statute of Limitations.

It therefore follows that at the time of his purchase from Mrs. Smith he had no right to this share which he could enforce at law or in equity against the heirs of Nathan Smith. 'He held the share as land in trust for them, until the sale to the company. Thenceforth he held the stock and proceeds thereof in like manner. Primá facie the purchase of a trustee from his cestui que trust cannot stand. To sustain it the trustee must have acted in entire good faith. He must show that he made to the cestui que trust the fullest disclosures of all he knew in regard to the subject-matter, and that the’ price he paid was adequate: Coles v. Trecothick, 9 Vesey 234; Randall v. Errington, 10 Id. 423; Greenfield’s Estate, 2 Harris 489; Diller v. Brubaker, 2 P. F. Smith 498; Wistar’s Appeal, 4 Id. 60; Parshall’s Appeal, 15 Id. 224.

A reference to the evidence shows that Newbold did not inform Mrs. Smith that he had ever held this property in trust for her late husband; nor that he had purchased it from Mr. Smith; nor that he and William M. Spencer had conveyed it to the Black Creek Improvement Company, and had received in payment therefor, stock of large value; nor that coal mines were being worked on the land, and that a cash dividend had been declared on the stock. It is true he did say to her that Mr. Spencer had some valuable coal interests in lands which he (Newbold) and Mr. Smith had formerly owned, and he was desirous of removing some doubts about his title; that he wanted to get quit claim deeds from her and from the heirs of her husband, and her release of dower, for which he would pay something.

He then withheld the substantial facts, which would have shown that she and the heirs of her late husband had a clear right to the property and its great value. His whole language was manifestly intended to convey, and did convey to Mrs. Smith, the idea that their interest was small and of uncertain value. At this time she was past eighty-six years of age.' The vigor and strength of her mind were impaired. She possessed limited means; hence the persuasive kindness of Newbold to pay her money so soon, was well calculated to prevent suspicion, and cause her to refrain from making inquiries of others. She was thus induced to procure for Spencer the title of the heirs, and transfer her own and all, for not more than one-seventh of .its value. Spencer knew by the quit-claim deed which he received from Newbold, that Smith had executed no deed for the lands. In making the contract with Mrs. Smith, Newbold acted for both Spencer and himself. Each had full knowledge. Both were interested in the stock issued for this share. Spencer therefore stands on no higher ground than his agent and co-partner. Substantially the same concealments and suggestions procured the deeds from the heirs. Manifestly such a purchase cannot be sustained in equity. It is unnecessary to discuss all the collateral questions in detail. We see no error in the conclusion of the master nor in the decree of the court.

Decree affirmed, and the appeal of each party is dismissed at the cost of the appellant therein.


source: Caselaw Access Project

author: Per, Curiam.

license: Public Domain

text:
    Korn versus Hohl.
    1. A lease covenanting to pay a money rent at stipulated times is a writing for the payment of money within the Affidavit of Defence Law.
    2. By an agreement the defendant covenanted to “ be responsible * * * for the performance * * * of the covenants * * * in the lease * * * on the part of (the lessee) * * * to be paid, done and performed,” &c.: Held, not to be a guaranty but a contract of suretyship.
    3. The agreement was a writing to pay money within the Affidavit of Defence Law.
    4. Dewey v. Dupuy, 2 W. & S. 553; Frank v. Maguire, 6 Wright 77; Johnston v. Cowan, 9 P. F. Smith 275; Reigart v. White, 2 Id. 438, followed.
    January 13th 1876.
    Before Agnew, C. J.,? Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia, No. 137, to January Term 1874.
    This was an action on the case, &c., brought September 18th 1873, by Henry Korn against Philip Hohl.
    As his cause of action the plaintiff filed the copy of a lease from himself to Reinhold Vollmar, for a house and lot No. 217 North Fifth street, Philadelphia, for the term of five years from the 12th of December 1872, the lessee covenanting to pay rent at the rate of $800 per annum in quarterly payments, with other covenants not material to the case.
    The defendant, Kohl, by agreement endorsed on the lease bound himself to “ be responsible * * * for the true and faithful performance of all and singular the agreements, covenants, &c., * * * in the lease, * * * which on the part of the within-named Rein-hard Yollmar * * * are to be paid, done or performed.”
    The defendant filed an affidavit of defence, one part of which was: — ■

      “ That the writing sued upon he is informed, is not such an instrument within the meaning of the Act of Assembly as permits judgment to be taken as against a surety for rent, inasmuch as the defendant signed an independent paper which contained a condition only rendering deponent liable in the event of a failure of other persons to comply with another agreement.”
    Judgment was entered for the plaintiff for want of a sufficient affidavit of defence and the damages assessed at $481.69.
    The defendant took a writ of error and assigned for error the entering the judgment as above stated.

      A. S. Shields, for plaintiff in error.

      TP. Hazlehwrst, for defendant in error.
    January 24th 1876,
   Judgment was entered in the Supreme Court,

Per, Curiam.

The lease in this case contained a covenant to pay a certain money rent at stipulated times. This was a writing for the payment of money. The defendant was not a guarantor merely, but a surety for the performance of the tenant’s contract, and therefore liable for the money rent. His agreement was therefore-a writing to pay money, and the fact that he was surety or that his covenant was for the benefit of another, does not take it out of the Affidavit of Defence Law. These points are fully covered by the cases in Dewey v. Dupuy, 2 W. & S. 553; Frank v. Maguire, 6 Wright 77; Reigart v. White, 2 P. F. Smith 438; Johnston v. Cowan, 9 Id. 275.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Philadelphia Hydraulic Works versus Schenck.
    Le Van contracted to construct elevators for defendant according to a plan specified ; before the work was finished Le Van abandoned it; plaintiff contracted to finish the work as “ per contract” with Le Van ; should the amount exceed §1000, Le Van agreed “to assume the excess.-” The court charged that the plaintiffs had put themselves into the shoes of Le Van and defendant could make any defence against them which he could have made against Lo Van : Held to be error.
    January 13th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No. 67.

      This was a scire facias sur mechanics’ lien, by the “Philadelphia Hydraulic Works,” against Joseph H. Schenck owner, being for the completion of elevating machines in a building of defendant.
    On the 5th of June 1871, the defendant entered into a written contract with the firm of Le Van & Co., for the erection of two elevators in his storehouse; one for passengers, and the other for goods ; the contract contained a number of specifications, setting out the plan, &c.
    The contractors were to be paid $2800 for the passenger elevator, and $1700 for the goods elevator.
    After having done about two-thirds of the work to the elevators, Le Van & Co. failed, and were unable to complete them. Le Van-then went into the employ of plaintiffs, and applied to the defendant to give .them the contract for finishing the elevators. In answer to this application the defendant wrote to plaintiff as follows:—
    “ Philadelphia, October 14th 1871. Philadelphia Hydraulic Works :
    Gents. — You are hereby authorized to Complete the worh on my elevators, as per contract between Messrs. W. B. Le Van & Co. and myself, provided the charge for same does not exceed the amount now due to Messrs. W. B. Le Van k Co. on said contract, namely, one thousand dollars. Should the amount exceed one thousand dollars, Messrs. Le Van k Co. agree to assume the excess.
    Yours, &c., J. H. Schenck.”
    The case was tried February 7th 1873.
    The plaintiffs gave evidence that they had completed the work according to the plan in the contract of Le Van k Co.; they worked under directions given them by Le Van, and the superintendent of Le Van & Co. ; plaintiffs only finished the work which Le Van k Co. had desigued and partially finished; they did not alter the design ; the principle of the machine was wrong; but plaintiff’s work was well done; the defects were not discovered until the machines were finished.
    The defendant gave evidence that the elevators worked badly, that it was from imperfect workmanship, and that they were not completed according to the plan.
    The court charged the jury: — ■
    That the plaintiff, by accepting the offer contained in the letter of October 14th 1871, and completing the machines under the authority conferred by it, placed themselves in the shoes of the original contractors, Messrs. Le Van & Co.; and that any defence which would have availed the defendant, as against Le Van k Co., if they had finished the work, would be equally good as against the plaintiffs, without regard to whether the defects were in the original plan or in their own work ; and, as on all the evidence, the machines are admitted to have been defective, the verdict should be for the defendant.
    The verdict was for the defendant.
    The plaintiffs took a writ of error and assigned the charge of the court for error.

      M. P. White, for plaintiffs in error.

      W. S. Price, for defendant in error.
    January 31st 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

Le Yan & Co. having agreed with the defendant to erect for him certain machinery according to a written specification, abandoned the work before it was finished. The defendant then made a contract with the plaintiffs “ to complete the work as per contract” between W. B. Le Yan & Co. and him. The plaintiffs went on and completed the work, and instituted their action in the court below to recover the amount which the defendant agreed to pay them. No question seems to have arisen on the trial as to the work done by the plaintiffs, but objection was made to their recovery on the ground that the work done by Le Yan & Co. was defective, and prevented the proper operation of the machinery. The learned judge instructed the jury that the plaintiffs had placed themselves in the shoes of the original contractors, and that any defence which would have availed the defendant against them would be equally good as against the plaintiffs.

We think that in this there was error. The defendant took the unfinished work from the hands of the first contractors, and made a new agreement with the plaintiffs to finish it according to the specifications contained in the first contract. The first contract is referred to in the second, only for this purpose. Had the agreement of the plaintiffs been with Le Yan & Co. to go on and complete the work, then indeed they would have stood in their shoes, and could have recovered nothing, except what Le Yan would have been entitled to recover. Here, however, there was an entirely new contract, though the terms and specifications of the old contract were referred to, and incorporated in it as to the work to be done by the plaintiffs. There is not a word in the letter of the defendant accepted by the plaintiffs, which proves the contract, which can justify the conclusion that the plaintiffs had agreed to become responsible, either for the sufficiency of the plan, or of the work done by their predecessors. They were to complete the work, that is do what remained to be done, and if they performed their part in a skilful and workmanlike manner, why should they be answerable, either for the sufficiency of the plan, or for the work done by others ? It is true that what they were to receive was not to exceed the amount which was due to Le Yan & Co. had they gone on and finished the work — and it is said in defendant’s letter, that if the amount of plaintiff’s bill should exceed the sum thus due, Le Yan & Co. agreed to answer the excess. We may assume that Le Yan & Co. were parties to the arrangement, and did agree as stated in the letter. We can see nothing in this like an assignment by LeVan & Co. of the contract to the plaintiffs, and agreement by them to stand in their shoes. To make the builder of a house responsible for defects in the plan of the architect, would not be any worse, more unsupported by reason and authority, than to visit upon a man who has agreed to complete a work according to specifications, liability for the faults of others who have gone before him.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Stokes’s Appeals.
    1. A testator gave to a trustee real estate and bank stocks in trust to pay the income to his daughter half-yearly during life, and ‘‘immediately after her decease,” he gave the property bequeathed, &e., to a granddaughter and two grandsons ; “ or such of them as may be living, their heirs and assigns.” 'The trustee having died, his executors settled an account; during the hearing on the account before the auditor, the cestui que trust died : Held, that the trust then terminated and that all the income from that time passed to those in remainder.
    2. The trustee had no active duties to perform to the remaindermen, not even to convey the estate passed directly by the will to the remaindermen; the trustee succeeding the deceased trustee was not entitled after the death of the cestui que trust to receive the corpus of the trust.
    3. The bank stock bequeathed in trust remained unchanged until the death of the cestui que trust; the second trustee collected the dividends — without having possession of the certificates — and the rents of the real estate. Held, that he was not entitled to commissions on any of the corpus of the trust.
    4. McCausland’s Appeal, 2 Wright 466, followed.
    January 14th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Appeals from the Court of Common Pleas of Philadelphia ; Of January Term 1874, No. 206, No. 207, No. 208, No. 209. In the matter of the trust estate of Harriet Ward, deceased.
    No. 206 and No. 207" were appeals from the decree of the court on the account of John F. Lamb, deceased, as trustee of Mrs. Ward.
    John Wether ill, late of Philadelphia, died on the 29th of March 1851, having made his will dated August 17th 1837, and proved April 7th 1851.
    The following clause of the will gives rise to this controversy :—
    “ I give, &e., unto the said Samuel W. Budd, his heirs, &c,, my storehouse, No. 85, and lot, &c., situate on the east side of Front street above Mulberry street. * * * Also, fifteen shares of my stock in the Merchants’ and Mechanics’ Rank of Wheeling. Also, sixteen shares of my stock in the Philadelphia Bank, and also ten shares of my stock in the Schuylkill Bank. And also the bonds and warrants of John McKinley for $1200, and for $400, * * * to hold to him, the said Samuel W. Budd, his heirs, &c., in trust, to let, &c., the real estate for the best yearly rent that can be reasonably obtained, * * * and to place out and continue at interest the personal estate embraced by this item, and to receive and collect the rents, interest and income thereof, * * * and after deducting thereout all taxes, * * * to pay the surplus thereof, half-yearly, to my daughter, Harriet Kyle, wife of David Kyle, for and during all the term of her natural life, into her own hands, for her sole and separate use, * * * and from and immediately after her decease, I give and devise the said storehouse and lot of ground, and the said personal estate embraced in this devise, unto her three children, namely: Susan Margaret Kyle, Robert Kyle and John Wetherill Kyle, or such of them as may then be living, his, her, or their heirs and assigns ; butdf they shall all be then deceased, then I give, devise and bequeath the same unto my residuary devisees and legatees, namely: the said Martha, Susan, Rebecca and Edward, their heirs and assigns, in equal parts.”
    On the 17th of July 1851, Samuel W. Budd renounced the trust, David Kyle being at that time dead, and Harriet having married Hugh M. Ward.
    On the 28th of February 1852, Dr. John F. Lamb was appointed trustee for Mrs. Ward.
    J. F. Lamb, the trustee, died in April 1869, never having settled an account of his trust. In May 1870, Edwin L. Stokes was appointed trustee in his place. On the 18th of February 1871, the executors of Lamb filed an account of his management of the trust, which was referred to Charles H. Downing, Esq., as auditor. His first sitting was on the 14th of March 1871. At the hearings there were present with their respective counsel, the accountants, Stokes the trustee, Susan M. Kyle (then Miller) and John W. Kyle, surviving remaindermen of the estate given in trust for Harriet Ward (late Kyle), under the will of John Wetherill. Harriet Ward, the cestui que trust, died on the 14th of February 1872, during the progress of the audit, leaving a w-ill, of which she appointed Mr. Stokes the executor, and trustee in it.
    The charges in the account as filed amounted to $7368.94, the credits including accountant’s compensation, &c., amounted to $6851.62, showing against the trustee a balance of $517.32.
    The account contained various items of charge and credit prior to February 28th 1852, the date of Dr. Lamb’s appointment as trustee. There was also an item of charge, viz. :—

      “ To cash received city treasurer for damages awarded to
    John Wetherill, on house 85 N. Front street, $1550.”
    On the credit side there was an item of $533, for repairing the house No. 85 Front street.
    Included in the account were charges under date of January 20th, March 2d, April 4th and May 4th 1857, amounting in the whole to $800, each being for “cash received, Mrs. Ward, for investment.” Also an item of credit:—
    “ By cash paid, Mrs. Ward, the following sums, being interest of J. F. Lamb’s obligations and cash in hand.”
    This item contained a number of sums entered in short and carried out, $593.76.
    There was also an item of credit under date of January 10th 1857,
    “ By cash paid H. Ward on account of $600 note, $50.”
    There were many other items of debit and credit, which were in the ordinary course of administering the trust and which the auditor found to be properly vouched.
    The auditor reported:—
    “ It appears from the evidence that, in the years 1861 and 1862, John F. Lamb, the trustee, and Mrs. Harriet Ward, the cestui que trust, had a settlement, and from that time until the appointment of E. L. Stokes, in May 1870, Mrs. Harriet Ward collected the rents and dividends herself.”
    Stokes, the present trustee, asked that the account might be surcharged with $300 and interest since November 1855, amounting to $306 ; also with the sum of $221.55, the amount appearing to be due Mrs. Ward on a memorandum given her by Dr. Lamb about the 1st of January 1862, and with interest from that time, $145.99.
    The auditor reported, that the items on both sides of account, relating to matters occurring before Dr. Lamb’s appointment should be stricken out; that the item of street damages should be stricken out as belonging to the corpus of the trust fund and not to the income; and that there should also be stricken from the credits the sum of $533, repairs, &c., to the house, this should be deducted from the amount of the street damages. With regard to the claim for surcharge of $300 and interest, the auditor reported that an account between the trustee and Mrs. Ward, showed that the sum of $300 had been paid to her on the 30th of November 1855, and that on the 30th of May 1857, she gave Dr. Lamb a receipt in full for all “ interest, rents and dividends which may have come into his hands to this date,” and that there was nothing to impeach the receipt.
    He reported also that there were receipts covering payments for the amount, $221.55, mentioned in the memorandum. He therefore refused to surcharge the account with those two sums and interest.

      He corrected the account as above stated, charging the accountant with §5108.94 and giving him credit by $5502.86, showing that there had been overpaid to Mrs. Ward the sum of §393.92.
    The auditor found that deducting the amount expended for repairs of the house from the street damages there remained $1017 of the corpus to be distributed amongst the remaindermen, the trust having terminated immediately on the death of Mrs. Ward, which as before stated occurred after the auditor had commenced his hearing.
    He reported that a clerk in the Philadelphia bank testified that Mrs. Ward had received the dividends on the stock in that bank ; that this was also admitted by the counsel of Stokes at the audit; that since 1861 or 1862, the dividends and other income had been collected by Mrs. Ward and that no claim had been made since that time: that receipts had been produced before him for payments by Dr. Lamb to Mrs. Ward since 1862 ; that there was no other testimony before him except that of Susan M. Miller and John W. Kyle to prove that they were the remaindermen of the trust and that Robert Kyle, the other remainderman, had died intestate, unmarried and without issue ; neither was there any evidence to prove to the contrary.
    The auditor was further of the opinion that “ no interest should be charged on said sum of $1017, because it is fully shown by the account that this amount was handed to the cestui que trust as income, and it would seem ver}” unjust that interest should be charged him on money of which the cestui que trust had the use and possession.”
    After deducting the expenses of the audit, $640.25, he divided the balance between Susan M. Miller (late Kyle) and John W. Kyle, the surviving devisees in remainder.
    The auditor reported that the trust estate which was in the hands of Dr. Lamb consisted of the house, sixteen shares of the stock of the Philadelphia Bank and twelve shares of the Merchant’s National Bank of Wheeling ; also, that it appeared from the evidence that neither the bonds of John McKinley nor the stock of the Schuylkill Bank ever came into the hands of Dr. Lamb ; the Schuylkill Bank having failed before the death of John Wetherill, the testator.
    A number of exceptions were filed to the report, being substantially the same as the specifications in the assignments of error hereafter stated.
    The court, Paxson, J., sustained one exception which increased the balance by $175 — overruled all the others — and otherwise confirmed the report, and decreed that the balance be equally distributed between Susan M. Miller and John W. Kyle.
    Stokes, as trustee, appointed to succeed Lamb, appealed to the Supreme Court and assigned for error,

      1. Not awarding to Stokes the trust estate, whole and entire, as the same was given, &c., by John Wetherill, deceased.
    2. Not awarding to him $1017, found to be part of the corpus of the estate.
    3. Not ordering the accountant to deliver to Stokes all papers, &c., and muniments of title of the trust estate.
    4. Decreeing that the evidence showed that neither the McKinley bonds nor the Schuylkill Bank stock had come into the hands of Dr. Lamb.
    5. Awarding to S. M. Miller and John W. Kyle instead of to Stokes, $640.25 as corpus of the estate.
    6. 7. Admitting Susan M. Miller and John W. Kyle to prove that they were remaindermen under John Wetherill’s will and that Robert Kyle had died intestate, unmarried and without issue.
    9. Decreeing that the trust had terminated.
    10. Not “ omitting” $1550 street damages, being part of the corpus of the estate.
    Stokes appealed also as executor and trustee under the will of Mrs. Ward, and assigned for error,
    1. Not awarding to appellant interest on the $1017, the balance of street damages.
    2, 3, 4. Not awarding him the sums of $300 and $221.55, referred to in the report, and also the sums received from Mrs. Ward for investment, as contained in the account, amounting together to $800.
    5. Decreeing that Dr. Lamb had overpaid Mrs. Ward $393.92.
    6. Decreeing that Dr. Lamb had a settlement with Mrs. Ward in 1861 or 1862, and she had received the income since; and not surcharging the account with that income.
    7. Decreeing that the .trust under Wetherill’s will had expired.
    8. Decreeing that numerous payments had been made by Dr. Lamb to Mrs. Ward after January 1st 1862.
    9. Vouching the account from September 24th 1855, to May 4th 1857, with one receipt dated May 30th 1857.
    10. Not striking out the item of credit of $50 under date of January 10th 1857.
    Appeals No. 208 and No. 209 were from the decree of the court on the account of Edwin L. Stokes, trustee, &c., of Harriet Ward (late Kyle), under the will of John Wetherill, deceased, under the clause heretofore stated.
    On the 29th of November 1872, on the petition of Susan M. Miller and John W. Kyle, the surviving remaindermen in the trust, the Court of Common Pleas directed Stokes to file an account of the personal estate and money received by him as trustee of Mrs. Ward. The trustee accordingly filed an account on the 3d of January 1873, which contained charges against the accountant for rent, and dividends on bank stock from November 1st 1869, until November 1st 1872 ; the premium, $125, received July 1st 1871 on a policy in the Franklin Fire Insurance Company, the policy having been lost. The credit side of the account contained divers items from May 14fch 1870 until December 26th 1872. Amongst others was an item of $301 premium for insurance on a house, part of Mrs. Ward’s trust estate; also, an item of cash paid E. S. Lawrance, Esq., professional services, $200, and an item, “ commission to trustee on account $39.65.” There appeared to be in the hands of the accountant a balance of $308.62.
    After the striking of the balance there appeared this item, “Paid, filing account, $10.”
    Also, a memorandum of the trustee, that he claimed a right out of the balance, “ to pay all the expenses of stating, filing and settling this account;” also, that he had “paid himself from time to time certain sums on account of his commission, but leaves the question open as to what his commission shall be, to be settled by auditor or the court on this or his final account.”
    The account was referred to Charles H. Downing, Esq., as auditor.
    The auditor reported that Stokes, as executor, &c., of Mrs. Ward, claimed that he was entitled to the sums amounting in all to $243.16, being rent and dividends which had become due during Mrs. Ward’s life, but collected after her death ; also, the difference $176 between the amount paid for premium on insurance, $301 and $125, the amount of returned premium; he also claimed that he was entitled to receive 2§- per cent, commissions on the gross value of the real and personal estate, the subject of the trust, viz., real estate devised in trust $12,000, and personal estate, consisting of stock in the Philadelphia Bank and a bank at Wheeling, bequeathed in trust $3528, the commission as claimed on this being $394.20 ; he also claimed commissions at 5 per cent, on $500, being the rent of the real estate from July 1st to December 1st 1872, $25.
    The. remaindermen objected to the credit of $200 for professional services to Mr. Lawrance before the death of Mrs. Ward, on the ground that they should have been paid out of income received during her life ; to commissions, $36.95, on income collected after January 1st 1872, on the ground that the trust terminated by her death on the 14th of February 1872, and Stokes had no authority from the remaindermen to collect the income; to commissions on the value of the principal of the trust, because it was a specific bequest, and because Stokes never had any responsibility as to the personal estate, it having continued in the hands of the executors of the former trustee; that Stokes as executor was entitled only to that part of the income that became due and payable before Mrs. Ward’s death.
    The auditor found that a dividend, $38.16, on the stock in the Wheeling bank paid January 1st 1872, and one month’s rent, $83.36, paid February 1st 1872, making $121.49, being due before the death of Mrs. Ward should be awarded to Stokes, her executor, but none the remainder of the rent and dividends claimed by him should be awarded to him. As to the claim for the premium on the policy of insurance, he reported that at the time of John Wetherill’s death a policy, issued on the house, part of the trust fund, was lost and the insurance company called for an additional premium ; Stokes paid $301 premium for a new policy and cancelled the old one, the premium, $125, for which was paid to him; Stokes claimed $176, the difference between the two premiums, the remaindermen to receive a transfer of the new policy; this they declined and the auditor reported that Stokes should be surcharged with $125, the old premium, have the last policy cancelled and receive the premium unless the remaindermen would take from him a transfer of the policy and pay him the premium. The auditor also found that the bank stock belonging to the trust as capital had never been in the possession of Stokes and that there had been no reinvestment of the funds of the estate; he therefore did not allow commissions on any of the capital of the trust, the same being in his opinion a specific gift. As to the claim for commissions, $25 on $500 rent; the auditor reported that, although Stokes had leased the real estate for one year from December 1st 1871, he had no right as trustee to collect rent beyond the time of Mrs. Ward’s death the trust having then terminated. The auditor allowed a credit for a fee of $25 to Mr. Lawrance for services before the auditor and $10 paid for filing the account.
    The auditor further reported that the services rendered by Mr. Lawrence were for the benefit both of the trust and of Mrs. Ward,, he having attended with fidelity to the interest of both before the audit on Dr. Lamb’s trust account. The auditor therefore charged that sum to both, viz., $121.49 to Mrs. Ward and $78.51 to the trust estate, to be deducted from the share of the remaindermen. The auditor also allowed to Stokes of the $36.95, the sum of $6.07 as commission at 5 per cent, on $121.49, the amount collected by him prior to the death of Mrs. Ward.
    The auditor reported an account against Stokes corrected according to his foregoing findings. After deducting the expenses of the audit, &c., there appeared according to the account, to be against the accountant a balance of $302.75, which he distributed equally between Susan M. Miller and John W. Kyle.
    Exceptions were filed by Stokes to the report; they were overruled, except one which was sustained and the balance increased by $62.50 ; with this correction the report was confirmed.
    Stokes as trustee under the will of Wetherill, appealed to the Supreme Court. He assigned for error,
    1. Not allowing him commissions on the corpus of the trust.

      2. Not allowing him commissions on the rent of the real estate from July 1st 1872 to December 1st 1872.
    3. Refusing to allow him $30.88 of his claim $36.95, “ commissions to the trustee on account.”
    4. 5. Confirming the report of the auditor in his findings as to the policy of insurance and surcharging the accountant with $125.
    6. Confirming the report of the auditor as to the fee of $200 paid Mr. Lawrance.
    7. Not allowing accountant $10 for stating the account.
    8. 9. Confirming the finding of the auditor that the stocks of the trust were never in the hands of the accountant, and that the remaindermen had not authorized the accountant to make any collection of the income after Mrs. Ward’s death.
    10. Not directing the expenses of the audit to be charged proportionately to the corpus of the trust and the income.
    Stokes, as executor, &c., of Mrs. Ward, appealed from the decree and assigned for error,
    1. Not awarding to the executor his claim for six months’ rent, $41.67, due March 1st 1872, three and a half months’ dividend, $65 on Philadelphia Bank stock up to May 1st 1872, one and a half months’ dividend, $15, on Wheeling Bank stock, July 16th 1872.
    2. Not allowing him the whole sum of $301, the amount of the insurance premium.
    3-6. Finding that Robert Kyle had died intestate, unmarried and without issue; and that Susan M. Miller and John W. Kyle wore the surviving remaindermen, on their own testimony; and in dividing the balance on the account between them.
    7. Not decreeing that the expenses of the audit should be proportionately charged to the corpus, and to the income of the trust.

      H. S. Lawrance, for appellant.

      W. A. Husband, for Susan M. Miller and J. W. Kyle, appellees.

      J. A. Clay, for the executors of Lamb, appellees.
    January 24th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

There were two accounts filed in the court below, in the same estate, out of which four appeals have grown. They have been argued together, and may all be disposed of in one opinion. The first account was that of John S. Lamb, trustee of Harriet Ward, as stated by his executor. The second account is that of Edwin L. Stokes, who succeeded John S. Lamb in the trust. The two accounts form a continuous statement of the estate of the said Harriet Ward. The said Stokes is also the executor and trustee under the will of the latter. Two appeals have been taken by him to the decree of the court below upon each of the accounts referred to. One of said appeals is as trustee of the estate of Harriet Ward under the will of John Wetherill; the other as executor and trustee under the will of Harriet Ward. We-will first consider the appeals in the case of the account of John S. Lamb, trustee.

There are ten assignments of error in each of these appeals. Those in the appeal of Edwin L. Stokes, as trustee, will be first considered. The principal cause of complaint is evidently embodied in the first assignment, which alleges error in not awarding to the appellant “ the trust estate, whole and entire, as the same was given, devised and bequeathed by John Wetherill, deceased.” By the terms of the will of John Wetherill, the estate passed directly to the remaindermen upon the death of Harriet Ward. • The words of this portion of said will are as follows: “ And from and immediately after her (Harriet Ward’s) decease, I give and devise the said storehouse and lot of ground and personal estate embraced in this devise, unto her three children, namely, Susan Margaret Kyle, Robert Kyle, and John Wetherill Kyle, or such of them as may then be living, his, her, or their heirs and assigns.” The trustee had no duties to perform to the remaindermen; not even to convey to them. The case is stronger than Bacon’s Appeal, 7 P. F. Smith 504, in which Mr. Justice Strong said, the trustees “ were not at liberty to hold a single hour for the use of those in remainder.” The moment Harriet Ward died, the remaindermen were in by virtue of the will of John Wetherill. The duties of the trustees were ended; there remained only the liability to account. The trust estate as reported by the auditor consisted principally of a storehouse on Front street and certain shares of bank stock. He further finds that no portion of this property has ever been in the possession of this trustee. As the trust was ended by the death of Harriet Ward, this claim is wholly devoid of merit. It is difficult to see its object, unless it be to enable the trustee to charge commissions upon the corpus of the estate. We would not award it to him for this reason'alone.

The second, third, fifth, eighth and tenth assignments of error refer to the same subject as the first and fall with it.. The fourth is to a question of fact, and is not sustained. The sixth and seventh allege error in admitting the testimony of John W. Kyle and Susan M. Miller, to establish that they were the remainder-men under the will; and also to prove the death of Robert Kyle, intestate, unmarried and without issue. As there is no contention about either of these facts, and as this trustee has no right to -interfere if there were, the force of these assignments is not apparent. The ninth exception is fully covered by what has already been said.

The assignments of error in the appeal taken by Mr. Stokes, as executor of Harriet Ward, differ somewhat from those just considered. The first alleges error in not decreeing to appellant interest on the sum of $1017, found as corpus of the trust. The learned auditor finds as a fact that this amount was handed to the cestui que trust as income, and says very properly that “it seems very unjust that interest should be charged him on money of which the cestui que trust had the use and possession.” The second assignment refers to what would evidently seem to be a mistake of $300 in an alleged memoranda of settlement with Mrs. Ward in November 1855. The error appears in the figures as printed. But the paper itself was a mere loose memorandum and formed no part of the account filed. The auditor’s explanation of it is entirely satisfactory. He finds as a fact that the cestui que trust received $300 from her trustee during that month,, and that the accounts between them for two years afterwards were fully covered by receipts of the cestui que trust.

The third assignment alleges error in not awarding to appellant the sum of $221.55, with interest, which it was alleged was due from the trustee to Mrs. Ward upon a settlement in 1862. But the auditor finds that this sum was subsequently paid over to Mrs. Ward, and satisfactory receipts produced therefor. The fourth assignment alleges error in not awarding to appellant the sums referred to on the debit side of the account under date of January 20th 1857, March 2d, April 4th, and-May 4th 1857, amounting to $800. As we see no sufficient reason why these sums should be awarded to the appellant, and as none has been shown to us, this assignment may -be dismissed. The fifth refers to questions of fact which appear to have been correctly decided by the auditor. The seventh alleges that the court below erred in decreeing that the trusts under the will of John Wetherill had expired. We have already passed upon this point. It was not pressed either before the auditor or in this court. The eighth, ninth and tenth assignments relate to questions of fact which do not need discussion.

This brings us to the second account, or the one filed by Mr. Stokes, as trustee of Harriet Ward. Here, also, there are ten assignments of error by “ the trustee accountant,” and seven by the accountant as “ executor of Harriet Ward.” I will consider them in the order in which they are stated. The first assignment filed by the trustee accountant alleges error in not allowing said accountant a commission of two and a half per cent, on “ the corpus of the trust estate.” The commissions claimed were properly disallowed. The auditor finds that the certificates for the bank stocks were never in the possession of this trustee, the same having been held by the executors of the former trustee until the final settlement of his account. Neither was there any re-investment of the funds of the estate. Still less would the trustee be entitled to commissions upon the real estate, which passed directly to the remainder-men without his intervention. If any authority were needed for so plain a proposition, it may be found in McCauseland’s Appeal, 2 Wright 466. The second and third assignments also refer to commissions. We fail to perceive any error as to either. The charge of $25 was for commissions on rents which the trustee did not collect, and the $30.88 was for commissions on income which he had no right to collect. ..It was income which accrued after the death of Mrs. Ward, and the remainder-men had given him no authority to receive it. As to them he was a mere intermeddler, and was not entitled to charge for his services in that capacity. The surcharge of $125 referred to in the fourth assignment was properly made. It was an equitable mode of adjusting the matter to which it refers, which did no injustice to the accountant. The fifth assignment is to a question of fact and is not sustained. The placing of counsel fees upon both the income and corpus of the estate referred to in the sixth assignment, was entirely proper. If it were not so, the remainder-men are the only parties who have the right to object, and they have not done so. The auditor finds that the services of counsel enured to the benefit of those in remainder as well as the life tenant. There is nothing from which we can find that the proportion adopted by the auditor was not just. The seventh specification may be dismissed with the remark that the claim for $10 for stating the account, was not made before the auditor, and could not therefore have been passed upon by the court below. The eighth and ninth assignments are to questions of fact, and are not sustained. Nor do I see any merit in the tenth assignment. This trust was not for the remainder-men, and there appears no good reason why they should contribute to the expenses of the audit.

It remains but to consider the seven assignments filed by Mr. Stokes as executor- of Harriet Ward. As to the three items claimed by the appellant in the first of said assignments, it is sufficient to say that the auditor finds that they were for rents and dividends which did not become due until after the death of Harriet Ward. It is clear that they do not go to her executor. The residue of these assignments have been fully disposed of by what has already been said.

I have gone over these cases patiently and microscopically. This is sometimes necessary in order to see the points involved.

The appeals in all of these cases, to wit, Nos. 206, 207, 208 and 209 of January Term, 1874, are dismissed, and the decrees of the court below affirmed. The costs in each appeal to be paid by Edwin L. Stokes, appellant.