author: Per Curiam.

text:
    Standbridge versus Catanach.
    1. Where a contract Avas made by the deceased member of a firm, in an action by the surviving partner, a party to the contract is incompetent as a witness under the provisions of the Act of April 15th 1869, Pamph. L. 30.
    2. A surviving partner is included within the exception to the Act of 1869, Avhich provides that the act shall not apply to actions “ where the assignor of the thing or contract in action may be dead.”
    3. A surviving partnor is as clearly included within the mischief by the death of the former owner “of the thing or contract,” as one is who claims by a written assignment from one who is dead, and his adversary cannot be permitted to testify to what passed between him and his deceased partner.
    4. Hanna v. Wray, 27 P. F. Smith 27, followed.

      January 29th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1876, No. 299.
    Assumpsit brought by Adam Catanach, surviving partner of the firm of Catanach & Son, against George 0. Standbridge, surviving partner of the firm of Standbridge Brothers, for the balance of a bill for work done in constructing and placing a ease for an organ in a church. The only question in the case was, on whose account the work was done. The plaintiff alleged that the work was done for the defendant’s firm. Tlie defendant contended that it was done for his father, John C. B. Standbridge, who was for many years an organ builder; while, at the same time, the firm of Standbridge Brothers was composed of his two sons, John G. and George 0. Standbridge.
    Upon the trial the plaintiff called his foreman, who testified that he knew Standbridge Bros., organ builders; that he was present at Archibald Catanach’s house at an interview between said Catanach and John G. Standbridge, of defendant’s firm; that John G. Stand-bridge had plans for an organ case, and he (witness) went over the plans and made an estimate of the cost; that he heard John G. Standbridge say that the organ case was to be built for him and his brother, Standbridge Bros.; that he afterwards saw John G. Stand-bridge, who said the estimates were too high, and after consultation they were reduced; that he heard nothing further of the matter until he was ordered to go ahead with the work; was then referred to John G. Standbridge and George 0. Standbridge; he also saw J. 0. B. Standbridge, but took all instructions from John G. Stand-bridge ; he saw all the Standbridges at the church during the progress of the work; that the case was furnished according to contract.
    The defence then called the defendant, George 0. Standbridge, and offered to prove by him “that the defendant’s firm never ordered the case which is the subject of this suit, and that the same was not, in fact, delivered to them,” which was objected to, and the objection sustained, the court ruling “that the evidence of the plaintiff showing that the deceased partner of plaintiff having made the contract, the testimony is excluded in so far as it relates to any contract made with said deceased partner.”
    The defendant then gave evidence that the organ was in fact built by his father under a written contract with the church, which contract included the organ case. The firm of the defendant built a part of the organ for their father, because he had not the facilities for building the whole -of it. The portion the firm built did not include the organ case, and their father paid them for the work they did.
    No points were submitted, and the court, Ludlow, P. J., charged the jury:—

      “ The question is one of fact for you to decide. If the contract was made by Standbridge Bros., they are liable; if made by the father, they are not. You must consider the testimony and decide the question. If the jury believe, under the evidence, that the contract was made with Standbridge Bros., the verdict must be for the plaintiff; otherwise, for defendant.”
    The verdict was for the plaintiff for $538.34, on which judgment was entered.
    Defendant took this writ, and the error assigned was the refusal to admit the testimony of defendant on the ground that as the evidence disclosed that the contract was made by the deceased partner of the firm, the defendant could not, under the provisions of the Act of April 15th 1869, be permitted to testify.

      Thomas Mitchell and Thomas A. G-ummey, for plaintiff in error.
    — The Act of 1869 declares that “no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding; provided, * * * this act shall not apply to action by or against executors, administrators or guardians, nor where the assignor of the thing or contract in action may be dead.” The question in the present case turns upon the meaning of the words “the assignor of the thing in action.” In the construction of a statute, the language of the legislature should be interpreted as meaning what it plainly expresses. It is the words of the statute free of conjecture which are to determine the intention of the maker: Olmsted’s Case, Brightly R. 1; Fisher v. Blight, 2 Cranch 358; Taylor v. Kelly, 3 Weekly Notes 207. It is submitted, therefore, that it cannot be said that the assignor of the thing or contract in action is dead, unless the thing or contract in action has been assigned and he who assigned it has since died. How can it be said that a deceased partner of a firm is the assignor of his surviving partner ? The latter succeeds, as to third parties at least, to all the rights and liabilities of the firm, not by assignment of any kind, but by right of survivorship. It is true, this reasoning is opposed to Hanna v. Wray, 27 P. F. Smith 27; but admitting the conclusion in that case, we submit the facts there did not bring the case within the words of the act.

      JE. G. Platt and Samuel Dickson, for defendant in error.
    — It was settled in Karns v. Tanner, 16 P. F. Smith 297, that when a party to the thing or contract in action is dead, and his rights have passed by his own act or the law to another who represents his interest, the surviving party shall not testify to matters occurring in the lifetime of the adverse party.
    In Hanna v. Wray, 27 P. F. Smith 27, the rule laid down in Karns v. Tanner was held to be applicable to the case of a suit against surviving partners, and the adverse party held incompetent.

      In Gavit v. Supplee, 2 Weekly Notes 561, the defendant was held incompetent, suit having been brought by a surviving partner, on the authority of Hanna v. Wray.
    Archibald Catanach died in January 1873; the suit was brought by his surviving partner; the contract was made and the work done in 1870.
    Under these circumstances the defendant was offered generally as a witness; but the court only' excluded his testimony so far as related to any contract made with deceased partner. This was clearly more than the defendant was entitled to under the above cases.
   The judgment of the Supreme Court was entered February 5th 1877,

Per Curiam.

— The case of Hanna v. Wray, 27 P. F. Smith 27, which we are asked to overrule, was decided by the whole court, and we are now as unanimous in sustaining it. There the transaction was between the deceased partner and Wray, the opposite party. It was held that Wray was incompetent as a witness upon the authority of Karns v. Tanner, 16 P. F. Smith 297, a case that has been repeatedly followed as interpreting the Act of 15th April 1869. It was said in Hanna v. Wray, “ that case, therefore, rules this, for here, by operation of law, the rights and liabilities of Mc-Vay devolved upon Hanna, the surviving partner. There is clearly no difference in principle between a devolution of McVay’s estate upon another directly by law, on the happening of a certain event; and its devolution by a sale at law (Tanner’s case). In either case it is the act and operation of the law, really more direct in the former case than in the latter, which required certain legal instrumentalities, to wit: the executions, in order to produce the result.” It is argued that this is a departure from the letter of the act, and is a judicial rule affording no certainty, and Taylor v. Kelly, 3 Weekly Notes 206, is referred to as giving the rule that the letter of the statute must be maintained. This is incorrect. Taylor v. Kelly does not reject what is a judicial necessity, that of interpreting the language of the law-giver. It recognised Karns v. Tannar, which of necessity had to interpret an obscure clause, and puts the exclusion of the witness upon the words executor and administrator. These words are legally demonstrative that in every case where either is a party one of the parties to the litigation is dead, and hence the majority of the court concluded that in every such case the interpretation simply followed the letter. The minority conceding this as to parties to the action thought that exclusion does not follow when the witness is a disinterested third person, whose only relation to the ease is a mere affinity. That controversy has no bearing on this ease, for when we reach the next clause, “ nor where the assignor of the thing or contract in action may be dead,” we meet a different feature. The word “assignor,” unlike the the words executor and administrator, does not import an exact thought. The inquiry arises immediately, who is the assignor of a thing or of a contract ? Does the word necessarily import one who has assigned by a writing under his hand ? Or may liis right or title pass by other means ? There an assignor imports an assignee, but this is not expressed. Is the assignee one who takes by some formal legal document, or is he one who has taken the title otherwise, and now stands in the place of the former owner of the thing or the contract, clothed with all his rights, and, therefore, entitled to all his knowledge as a witness? He is as clearly included within the mischief, by the death of the former owner, as one is who claims by a written assignment from one who is dead. If the adversary shall not testify in one case, on what principle shall he testify in the other? He who claims by the act or by the operation of the law is, therefore, as fully within the mischief, and within the true intent of the clause, as one who claims by writing directly from the former owner. In either case his adversary should ■not be permitted to testify to what passed between him and the deceased owner, whose lips are closed. It would be rank injustice, yea, iniquity, to permit it. This is the principle of Karns v. Tanner and Hanna v. Wray, and it is a plain one, which the profession can easily understand, and which hair-splitting alone can confuse or confound.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon Per Curiam.

license: Public Domain

text:
    Cummings versus Boyd.
    1. While the rules of special pleading require pleas to he single, yet a party is not precluded from introducing several facts into one plea provided they all tend to produce but a single issue.
    2. A special plea averring fraud is not bad because it amounts only to the general issue, for strictly the allegation of fraud can only be introduced through or by means of special pleading.
    3. The holder of an accommodation note, pledged as collateral security for an antecedent debt, is not a purchaser for value, and the note in his hands may be impeached for fraud m its making or procurement.
    4. Judgment in the court below having been entered for the plaintiff upon a demurrer to along and complicated special plea, the Supreme Court reversed the same and entered judgment for defendant. Upon a rule to show cause why this judgment should not be set aside: Held, that owing to the peculiar circumstances of this case the judgment of the court below is reversed, and the record ordered to be remitted to determine whether a new trial shall be granted, and to make such order in the premises as to justice may belong.
    5. Per Curiam. — Ordinarily a party who rests his cause upon a demurrer when he might have had a trial upon the facts of the plea, and then the benefit of the legal question, will not be helped out of the position he has voluntarily .assumed.

      January 30th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 74.
    Assumpsit brought by James W. Boyd, the holder of a promissory note, against Bobert D. Cummings, who endorsed said note for the accommodation of Isaac Barton & Son, the makers.
    The pleas were non-assumpsit, payment with leave, &c., and the case proceeded to trial, when at bar the defendants filed the following special plea:—
    “And now, on motion of J. M. Moyer, the defendant amends his pleadings as follows, by leave of the court first had and obtained, for a further plea in that behalf, sayeth: The said plaintiff ought not to have or maintain his aforesaid action, because he sayeth that the note on which the above action is brought was obtained from the defendant by the said Barton through misrepresentation and fraud; that the said Barton, at and before the signing of said notes by this defendant, represented and pretended that he was the owner in his own right of goods and chattels and property of the clear value of over one hundred thousand dollars; that he was worth over one hundred thousand dollars above all his liabilities, and that upon the faith of said representations and pretences the said defendant, then and there, signed said note. Also, that defendant signed said note in blank, under the express promise and representation by the said Barton, that it was to bo a note for six hundred dollars, and that the said Barton afterwards filled up said note for the sum of-fourteen hundred 'and thirty-seven dollars, in violation of his said contract with the defendant; also, that the plaintiff is holding said note only as collateral security for a pre-existing debt, and that he has not delivered up to the said Barton the evidence of said indebtedness, but still holds and retains the same against the said Barton; also, that the said plaintiff received into his possession the said note, as a note-broker, from the said Barton, to sell the same in the market, and was to return to the said Barton the proceeds thereof; that he advanced five hundred dollars on account of said note to the said Barton, and that that is all the consideration received by the said Barton from the said Boyd; and that the defendant has paid to the said Boyd the said five hundred dollars in full accord and satisfaction of said note; also, that the said plaintiff had knowledge of the insolvency of the said Barton at the time of the delivery to him of said note by said Barton; that at the time of the aforesaid representations and pretences by the said Barton, he, the said Barton, was wholly insolvent and unable to pay his debts, and that he was not then and there the owner in his own right of property, goods and chattels of the value of over one hundred thousand dollars above his liabilities.”
    The plaintiff demurred to this plea, and set forth the following among other causes of demurrer: That said plea amounts to the plea of non-assumpsit; that it is double and contradictory in that it sets forth that the defendant made the endorsement sued on upon the representations of one Barton that he was the owner of property of great value; that the said endorsement was made in blank, on the representation and agreement that it would be filled up for the sum of $600; that it sets up an alleged accord and satisfaction; that said plea is further double and contradictory in that it avers that plaintiff received said note only as collateral security for a preceding debt; that he advanced $500 on the faith thereof; and that the plaintiff received said note for the purposes of sale, and to return the proceeds thereof to said Barton; that said plea does not set forth any fact invalidating his said contract of endorsement in the hands of a bond fide holder for value, and does not show that the plaintiff was not such holder, but, on the contrary thereof, distinctly shows that the plaintiff received said note for full value; that said plea does not show that said alleged representations of said Barton, respecting his property, were known by said Barton to be false, and were made with the purpose of inducing said defendant to give said endorsement; that said plea lacks certainty of time and place, in that the time at which some of the alleged facts therein set forth is given, nor are any of said facts alleged to have happened at any definite or specific place.
    Without a decision upon the questions raised by the demurrer the trial proceeded, and a verdict was rendered for the plaintiff for $1030.34, the amount claimed. The court subsequently, upon argument, sustained the demurrer, stating that they found the plea sufficient in form, but insufficient in substance, and entered judgment in favor of the plaintiff on the demurrer.
    The defendant then took this writ, alleging this action of the court for error.

      J. M. Moyer, for plaintiff in error.
    — The holder of an accommodation note or endorsement obtained by the payee through misrepresentation or fraud, when he is not a holder for a present consideration, but simply as a collateral security for an antecedent debt, without surrendering the evidences of such prior debt, is not a purchaser for value: Coddington v. Bay, 20 Johns. 637; Stalker v. M’Donald, 6 Hill 93; Homes v. Smyth, 4 Shepley (Me.) 177; Bright v. Judson, 47 Barb. 29; Atlantic Nat. Bank v. Franklin, 55 N. Y. 235; Kirkpatrick v. Muirhead, 4 Harris 123; Petrie v. Clark, 11 S. & R. 377 ; Walker v. Greisse, 4 Whart. 258; Depeau v. Waddington, 6 Id. 220.
    This case is not governed by the ordinary rule that an accommodation endorser cannot plead the want of consideration in an action by a holder, who received the note as a collateral security for an antecedent debt, because of the fraud here perpetrated upon Cummings at the time of the endorsement. Had he not been deceived by the gross misrepresentations of the accommodation endorser, he would not have given his endorsement. The cases of Appleton v. Donaldson, 3 Barr 381, and Lord v. The Ocean Bank, 8 Harris 384, and the subsequent authorities, were cases untainted by legal fraud. The present case is, therefore, within the ruling in Lenheim v. Wilmarding, 5 P. F. Smith 75, that when a fraud is perpetrated upon the maker, and the note passes into the hands of a third party simply as a collateral and not for a new ancl valuable consideration, there can be no recovery. See also Ashton’s Appeal, 23 P. F. Smith 162; Gray’s Administrators v. The Bank of Kentucky, 5 Casey 367 ; Hutchinson v. Boggs & Kirk, 4 Casey 294.
    A special plea will not be denied because it amounts to the general issue: Bauer v. Roth, 4 Rawle 83. Eraud must be specially pleaded : Clark v. Partridge, 2 Barr 13; Renshaw v. Gans, 7 Id. 117 ; Comwealth v. Meckling, 2 Watts 130 ; Burk v. Huber, Id. 311; Updegraff v. Spring, 11 S. & R. 188. A plea is not bad for duplicity, if one or more of the averments be mere surplusage: Webber v. Shearman, 3 Hill 547; HcFate v. Shallcross, 1 Phila. R. 75.

      J. Howard Gendell and E. Spencer Miller, for defendant in error.
    — Where a plea amounts to the general issue, it must be so pleaded: 1 Chitty Pl. *527; Stephens’s Pl. 360. Eacts which -can be given in evidence under the general issue cannot be specially pleaded: M’Bride v. Duncan, 1 Whart. 269; Strawn v. Park, 1 Phila. R. 178; Dawson v. Tibbs, 4 Yeates 349; Falconer v. Smith, 6 Harris 130.
    The plea is double and uncertain in many respects. Which of the six different points which it makes ought the plaintiff to traverse 1 Is it right to ask him, in the midst of a jury trial, to deny one only of these allegations and to admit all the rest ?
    It is well settled that an endorsement in blank is an authority to fill in any amount. If there is any limitation in the authority,. notice must be brought home to the holder. The allegations respecting the representations of Barton do not constitute a defence. No scienter is averred. It matters little, however, what took place between the maker and endorser of the note, if the holder is a bond, fide purchaser for value, without notice. There is no intimation in the plea of notice to the plaintiff, and the whole question turns upon the consideration given by him. In Lord v. The Ocean Bank, 8 Harris 384, and in a long line of cases following it, it was held that the receipt of accommodation paper as collateral for an antecedent debt is a giving of value. In Petrie v. Clark, 11 S. & R. 377, it was said the giving of time would be a present and valuable consideration, and a pledge on these terms would be the same as a pledge for money paid down; and in Depeau v. Waddington, 6 Whart. 220, it was held that if time was given in consideration of obtaining the note as a security for the debt, the plaintiff was a boná fide holder for value. Is not the payment of $500 in this case, in addition to the former debt, quite as valuable as the extension of time ? In accord with this view also is Washington Bank v. Lewis, 22 Pick. 24.
   Mr. Justice Gordon

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

We agree with the court below that the plea of the defendant is sufficient in form, and that, so far, the matter was well ruled. Whilst the rules of special pleading require pleas to be single, yet the defendant is not precluded from introducing several facts into one jdea, provided all tend to produce but a single issue. The matter alleged is the procurement by Barton of the note in suit by false and fraudulent representations, but as this of itself would not be sufficient to affect the holder, a statement is added showing the plaintiff to be a holder without consideration, except as to the sum of $500, advanced at the time of the receipt of the note, and which the plea states was paid by the defendant to the plaintiff. It will be seen, therefore, that this statement of these several facts is necessary to a single issue, and the omission of any one of them wmuld leave the plea defective. That the plea is bad because it amounts only to the general issue, non-assumpsit, is negatived by^ the consideration that, strictly, the allegation of fraud can only be introduced through or by the means of special pleading: Clark v. Partridge, 2 Barr 13. We do not, however, agree with the learned judge in holding the plea to be insufficient in matter of substance. Whilst it is true that accommodation paper may be pledged as collateral security for an antecedent debt, yet this is so because such paper is a loan of the maker’s or endorser’s credit to the extent of the value of the note, and without restriction as to the manner of its use: Appleton v. Donaldson, 3 Barr 381. Nevertheless, such holder is not a purchaser for value, and the note in his hands may be impeached for fraud in its making or procurement: Ashton’s Appeal, 23 P. F. Smith 153; Hutchinson v. Boggs, 4 Casey 294. Now the plea under consideration sets out that this, an accommodation note, was obtained from the defendant by Barton, ,the payee, under false and fraudulent representations, as that he was worth, above all liabilities, one hundred thousand dollars or more, whereas, in. fact, he was insolvent; that he expressly promised to fill up the paper, which was signed in blank, in a sum of not more than six hundred dollars, whereas, he made it fourteen hundred and thirty-seven dollars. We have no hesitation in saying that the facts thus set out, and admitted by the demurrer, are sufficient to put an ordinary holder to proof of value, and consequently to defeat the claim of one who, like the plaintiff, liolds only as pledgee for the security of a pre-existing debt.

The judgment of the court, below is reversed, and it is now ordered that judgment be entered for the defendant.

Subsequently, upon a rule to show cause why the entry of judgment for the defendants below should not be stricken off or set aside and the record remitted for further proceedings, the following judgment was entered by this court on the 12th of March 1877,

Per Curiam.

— Under the peculiar circumstances of this case we think our judgment should be modified. On the trial of the cause, the defendant filed a long and somewhat complicated special plea, so much so as to give it the color of duplicity and contradictiveness, as well as of insufficiency. The court below took that view of it. These circumstances indicate the strong inducement of the plaintiff to rely on a demurrer. Now, though we have reversed the judgment in demurrer, it was upon grounds that did not seem to have struck the minds of counsel or court. The result, therefore, has had the same effect as when a party is taken by surprise by a new plea. Ordinarily a party who rests his cause upon a demurrer, when he might have had a trial upon the facts of the plea, and then the benefit of the legal question, will not be helped out of the position he has voluntarily assumed; but this case is exceptional in its circumstances. It is therefore ordered that the judgment of the court below on the demurrer be reversed, and that the record be remitted to that court to determine whether a new trial shall be granted, and to make such order in the premises as to right and justice may belong.


author: Chief Justice Agnew

text:
    Williams’s Appeals.
    1. The testator, by his will, devised his estate in trust, that the rents, profits and income shall be received by his daughter during her life, not subject to the control of her husband nor liable for his debts, with power of appointment by will, and in default of appointment, in trust for her children and their issue, if any, and'in case of death without children, to her right heirs, authorizing her at any time to revoke or change the trust created, and to make and declare new trusts concerning the premises, and by a codicil declared it to be his will that the trust and uses in regard to his daughter shall be irrevocable. The auditor reported the trust void, and his report was confirmed by the court below: Held, reversing, that the trust is an active trust.
    2. When an active trust is created to give effect to a well-defined, lawful purpose of a testator in relation to his family, the trust must be sustained, whether the cestui que trust be sui juris or not.
    3. Earp’s Appeal, 25 P. E. Smith 111, followed and distinguished from Yarnall’s Appeal, 20 P. E. Smith 335, and Ogden’s Appeal, Id. 501.
    4. The testatrix, by her will, devised one-third of her estate in trust to pay the income to lior sister (who is the daughter above mentioned) during her life, not subject to the control or the debts of her husband, with power of appointment by will, and in default of appointment, to such person to whom, under the intestate laws, the same would go, had she died seised in fee. The will was made during the life of the husband of the sister, the cestui que trust. The auditor reported, that as the husband had died, the trust must be considered as executed, and the court below confirmed this report: Held, affirming, that as the only purpose of the trust was protection against the husband during coverture, it failed by his death, .and the trust for coverture having fallen, the cestui que trust had a legal life-estate with remainder to her heirs, and by the operation of the rule in Shelley’s case, it coalesced and constituted a fee in her.
    5. Yarnall’s Appeal, 25 P. P. Smith 339, considered and followed.
    January 30th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeals from the Orphans’ Court of Philadelphia county: Of January Term 1877, No. 51, 52.
    These were appeals of Jacob T. Williams from the decree of the court in the matter of the trust estates of Hannah W. Sterling.
    The appellant, Jacob T. Williams, is the brother and trustee of said Hannah W. Sterling, under the wills of her father, Thomas Williams, and her sister, Mary Williams. The two trust estates were blended together for convenience by the auditor and by the court below; a special appeal, however, was taken, out in each case.
    The appellant, as trustee in said two estates, filed his account, and the same was referred to Edward Hopper, Esq., as auditor. Pending the audit, Hannah W. Sterling, the cestui que trust, filed her petition in the Orphans’ Court for the city and county of Philadelphia, praying the said court “ to declare that the trusts for the petitioner, under the last will and codicil of the said Thomas Williams, and the last will of the said Mary Williams, have all been executed, and to direct the said Jacob T. Williams, surviving trustee as aforesaid, to pay and hand over absolutely to your petitioner, all the moneys and other assets belonging to said trusts, and each of them now in his hands.”
    This-petition was likewise referred to Mr. Hopper to report upon. The auditor’s report hereunto annexed, fully sets out the clauses of the two wills, which give rise to the questions presented for the consideration of the court, together with the opinion of the auditor thereon, which is given at length, in view of the importance of the questions involved and the ability with which they are discussed-
    “ The most important question presented for the decision of the auditor, and which is presented by the petition referred to him, in conjunction with the account, arises in relation to the devise of Thomas Williams to his daughter, Hannah W. Sterling, and the devise of Mary Williams to her sister, the said Hannah W. Sterling.
    “ These estates are separate and distinct, and it would perhaps have been the better way for the trustee to have kept the accounts separated from each other; but as the estates for life were the same, and the remainders over were limited in substantially the same manner, the trustee blended the accounts. The devises will be considered separately, and from the conclusion to which the auditor arrives, the manner in which the accounts have been kept occasions no difficulty, as far as it affects the distribution of the estates.
    “ First. As to the question presented under the will of Thomas Williams.
    “ The clauses of the will under which the question arises are as follows:—
    “‘One other of the said seven full equal parts or shares, in which shall be included all that my messuage or tenement and lot or piece of ground thereunto belonging, situate No. 73, on the north side of Race or Sassafras street, between Delaware Second and Third streets in the said city, with the appurtenances, they shall allot and deliver, and I do hereby give, devise and bequeath the same unto my said sons, Samuel Williams, Thomas R. Williams and Jacob T. Williams, to hold the same and every part thereof with the appurtenances unto them mjr said sons Samuel Williams, Thomas R. Williams and Jacob T. Williams, and the survivors or survivor of them, and the heirs, executors, administrators and assigns of the survivor of them, in trust, nevertheless, to and for the following uses, intents and purposes: that is to say, in trust to let and demise the real estate, and put and keep out at interest, on some good real estate security, the personal estate forming such share, and to collect and pay over all the rents, income, interest and dividends thereof, from time to time, when and as the same shall be got in and received, unto my said daughter, Hannah Williams, for and during all the term of her natural life, so that the same or any part thereof shall not be under the control of any husband she may have or take, or be in any way or manner whatever sjibject to or liable for any of his contracts, debts or engagements. And from and after the decease of her, my said daughter Hannah, then in trust as regards the said last-mentioned seventh part or share to and for the only proper use and behoof of such person and persons, uses, intents and purposes as she my said daughter Hannah by her last will and testament in writing or by any writing in the nature of or purporting to be her last will and testament, to be executed by her in the presence of two or more credible witnesses, notwithstanding any coverture, or whether she be covert or sole, shall -nominate, direct, limit and appoint, and for want or in default of such nomination, direction and appointment, then in trust, after the decease of her, my said daughter Hannah', to and for the only proper use and behoof of all and every the child and children which she may leave, and the lawful issue of any of them who may then be deceased, having left such issue, their several and respective heirs, executors, administrators and assigns, in equal shares as tenants in common for ever, such issue of any deceased child or children of her, my said daughter, taking, however, and only receiving such part or share thereof as his, her or their deceased parent or parents would have had and taken had he, she or they been then living, and in case of the decease of her, my said daughter Plannah, without leaving any child or children, or the issue of any deceased child or children her surviving, and without having made any last will and testament as aforesaid, then to and for the only proper use and behoof of the right heir or heirs (under the then existing laws of the Commonwealth of Pennsylvania) of her, my said daughter Plannah, his, her or their heirs, executors, administrators and assigns for ever, if more than one person in equal shares as’ tenants in common: Provided always, nevertheless, that it shall and may be lawful for my said daughter Hannah Williams, notwithstanding any coverture, or whether she be covert or sole, at any time during her natural life, to alter, revoke, change and make absolutely null and void all or any of the trusts hereby declared and created, and to make and declare such new and other uses and trusts of and concerning the premises as she may see fit and proper; and provided, also, that it shall and may be lawful for the said Samuel Williams, Thomas R. Williams and Jacob T. Williams, and the survivors and survivor of them, and the heirs and assigns of the survivor of them, by and with the written consent and approbation of my said daughter Plannah, notwithstanding any coverture, or whether she be covert or sole, at any time during her natural life, to grant, bargain, sell and absolutely dispose of all or any of the real estate hereby devised in trust for her, my said daughter Hannah, unto any person or persons whomsoever, and upon sale thereof by good and sufficient deed or deeds, conveyances, or other assurances in the law to grant and convey and assure the same to the purchaser or purchasers in fee simple, and the money arising from such sale or sales thereof to again invest in other real estate, and hold the same in trust to and for the same and like uses, intents and purposes, and under the same and like provisos and limitations as are hereinabove set forth and declared of and concerning the premises so devised to them in trust for my said daughter Plannah, and to and for no other use, intent and purpose whatsoever.’
    “ ‘ Codicil No. 2. Whereas, in and by my last will and testament, dated the 26th day of the third month, one thousand eight hundred and thirty-eight, the following proviso is contained in relation to my daughter Plannah Williams’s trust; “ Provided, that it shall and may be lawful for my said daughter Hannah Williams, notwithstanding any coverture or whether she be covert or sole, at any time during her natural life, to alter, revoke, phange and make absolutely null and void all or any of the trusts hereby declared and created, and to make and declare such new and other uses and trusts of and concerning the premises as she may see fit and proper.” Now, I do, by this my writing (which I declare to be a codicil to my said will and testament, and direct to be taken as part thereof), revoke, annul and make void all the said above-recited proviso or power of revocation so far as relates to my said daughter Hannah, and do declare it to be my will, that the uses and trusts in my said will and testament in regard to my said daughter Hannah shall be and remain irrevocable, anything therein contained to the contrary notwithstanding. And, further, it is my will that all the personal property devised to Samuel Williams, Thomas R. Williams and Jacob T. Williams, in trust for the use of my daughter Hannah, be, as much as practicable, invested in real estate, such as in their opinion will be best, and the net income thereof collected and paid over unto her. And I do hereby ratify and confirm my said will and testament and codicil heretofore made and annexed thereto in all other respects save as above.’
    “Before coming to a decision in this case the auditor awaited the decision of the Supreme Court in Earp v. Phillips, and some later cases, in the hope (generally felt by the bar) that out of the numerous discordant cases some distinctive principle might be deduced which would serve as a guide in the construction of trusts created by will. Such a guide was sadly needed. All those principles which since the statute of uses had grown from numberless decisions, and governed-what are known as equitable estates, were in Pennsylvania overruled in 1856.
    “ Within the succeeding twenty years there has been a conflict of decisions upon the subject which has occasioned much perplexity to the bar. In the numerous cases within that period there have been a number of decisions for and against what used to be the well-understood doctrine of trusts. What the present learned chief justice has indicated as the current and violent counter-current of cases on the subject has been reviewed by him in Dodson v. Ball, 10 P. F. Smith 496, and he there asserted that ‘ the result of these conflicting principles and authorities is, that it is difficult to determine cases lying along the border.’
    “ In the recent case of Huber’s Appeal (Gaul’s Estate), 2 Weekly Notes 582, the learned Justice Woodward speaks of ‘the long line of authorities bearing upon this perplexed and intricate branch of the law of Pennsylvania.’ He designates the currents of decision bearing upon the subject, as ‘cross, counter, and direct.’
    “ The decision or opinion in Earp v. Phillips has failed to aid the auditor, so far as the annunciation of any distinctive principle of construction or interpretation would have done so. No such principle has been declared, nor can any be extracted from the opinion of the court in that case. In that — the last case — as if to preclude the attempt to discern any such guide, the court say, ‘ It is proper to remark, that the decision upon one will rarely ever forms a precedent for a decision upon another; even the same words in one are often interpreted differently in another. Instances of those various readings will be found in Yarnall’s Appeal. Hence that which may appear contrariety of decision is simply diversity in the testator’s intention.’
    “ As an officer of a court, subordinate to the Supreme Court, the auditor considers his duty best performed by comparing the cases before him with the expression of the latest view of the Supreme Court, in stating the result of such comparison, and in having thus moved the parties one stage further on the road through which every question of supposed trust for the last twenty years has travelled, and still must travel, to the Supreme Court.
    “ In Earp v. Phillips the court deemed it advisable to explain the two cases of Yarnall’s Appeal and Ogden’s Appeal, both decided two years before; and to distinguish them from the views contended for by the late Chief Justice Thompson (of counsel in Earp v. Phillips), who had relied upon his understanding of those cases in the decision of which he had concurred while on the bench. In the determination of the question now before the auditor, he will refer to these three cases only, and to the explanation of the first two contained in the last.
    “ If the estate devised to the testator’s daughter Hannah is an equitable one, it is so by virtue of the proviso of the will already cited and of the codicil No. 2. The purpose for which the testator devised one-seventh of his estate to his three sons, in trust for his daughter Hannah, is expressly stated to be ‘ so that the same or any part thereof shall not be under the control of any husband she may have or take, or be in any .way or manner subject to or liable for any of his contracts, debts or engagements.’
    “ No other purpose is stated and none other can be implied. The trust created, from, the character of the duties imposed upon the trustees, is a special one, and created for the benefit and security of Hannah’s property in the natural expectation of her coverture. It was admitted as a fact before the auditor, however, that at the date of the will, the said Hannah was not in immediate contemplation of marriage. Under similar circumstances a special trust was declared voidable in Yarnall’s Appeal, and Wells v. McCall (cases referred to as still controlling authorities in Earp v. Phillips), and the auditor decides that the special trust created by Thomas Williams, for his daughter Hannah, is also voidable, and upon the application of the said Hannah, now referred to him, actually void.
    “ It must be obvious, from an examination of the wrill of Mr. Earp (in Earp v. Phillips), that so far as the trust related to his daughter, its purpose was — as is the purpose of every father with reference to his daughters in such cases — to guard her interest in the event of coverture; yet-this was not said by the testator (Earp). In no other respect did the devise in Earp v. Phillips differ from that in Yarnall’s Appeal, in which the purpose of the special trust ivas in terms asserted.
    “ In the latter case the special trust was declared void, and in the former it was held valid. And the very fact of the assertion in the one case, and the absence of such assertion in the other, is one of the grounds on which the court distinguished the two cases. The auditor is therefore forced to the .conclusion that the purpose of the testator, Thomas Williams, would not have affected the special trust created, had it not been declared, and that its declaration rendered at once the special trust invalid. It is true that the court also distinguished Earp v. Phillips from Yarnall’s Appeal, by saying that in the former case ‘ the corpus of the estate is fully and distinctly vested in the trustees and put under their control,’ which was not done in the latter, but the court, in Yarnall’s Appeal, 20 P. F. Smith 339, held that it had been done, saying, ‘ It is dear that as to the daughters, the corpus of the estate vested in the trustee, and he was to pay over the interest and income to the daughters of Mrs. Ellis during life.’ These words form an important part of the opinion of the learned court that uttered them, and the auditor has felt not only at liberty, but that it is his duty, to disregard the attempted distinction between the cases on the ground last stated. In the will of Thomas Williams, it is true the devise to the trustees is of the corpus, but as this was decided to be the character of the will of Hannah A. Ellis (Yarnall’s Appeal), the decision in the latter case is followed by the auditor in the case now before him.
    “By codicil No. 2, the power of revocation is taken away from the cestui que trust, and the testator declares that the trust created by the will shall be irrevocable, and that all the personal property devised in trust shall be as much as possible invested in real estate. The trust created by the will is by the codicil neither modified, nor is the declared purpose for which it was made affected for good or ill. No doubt the purpose of the codicil was to take from the daughter the power which an unfortunate or speculative husband might prompt her to exercise; in effect, to further shield the property from the chief peril to which the continued experience of generations of lawyers has shown such estates to be exposed, and in this way to add strength to the provisions of the will. It is in the expression of the will, unmodified by the codicil, however, that the weakness inheres. There the testator expressed the purpose for which he called the machinery of a supposed trust into being, and thereby, as has been shown by reference to Earp v. Phillips, he defeated the sole purpose of his act.
    “ The devise is therefore a legal one to Hannah of the income for life, and this, in Pennsylvania, is a devise for life of the estate out of which the income issues: Wilson v. McKeehan, 3 P. F. Smith 79. The estate created by the will of Thomas Williams is consequently a legal estate for life in his daughter, with a legal remainder to her children, and in default of children, to her right heirs. It seems scarcely necessary to show what no one will doubt, that by the operation of the rule in Shelley’s case, the latter estate coalesces with and enlarges the former to a fee simple, and the auditor decides that logically following the cases of Earp v. Phillips and Yarnall’s Appeal, the estate created by the will of Thomas Williams for the benefit of his daughter Hannah is a fee simple, in one-seventh part of the testator’s estate.
    “Another view of the case may be taken, which may perhaps relieve it from the difficulties presented in the previous discussion.
    “ It is alleged to be a trust for coverture or for protection against coverture.
    “In support of this allegation it is shown that Thomas Williams, the testator, made the codicil No. 2, after the marriage of his daughter Hannah. When the testator’s will was made there was no engagement, no marriage in immediate contemplation. After the marriage this codicil was made, by which the power of revocation was annulled. This was done in reference to the trust for the said Hannah, and not rvitli regard to that for the other daughters. This would seem to indicate that the intention of the testator was to make it a trust for protection against coverture; and if that view is correct, and certainly it is not without plausibility, the husband of Hannah having died, the trust must be considered as executed, and the prayer of the petitioner granted.
    “As to the devise under the will of Mary Williams, the clause under which the question arises, is as follows, to wit:—
    “ ‘ Item : All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever (excepting only that part or portion of the real and personal estate of my late father, Thomas Williams, deceased, which I may receive or be entitled to on the division of said estate, and which I have willed as hereinafter expressed), I give, devise and bequeath as follows:—
    * * One full equal third part thereof unto my said brothers, Thomas R. Williams and Jacob T. Williams, and the survivor of them, and the heirs, executors, administrators and assigns of such survivor for ever, to hold the said last-mentioned one-third part of my said estate in trust for the following uses and purposes, that is to say: to demise and let the real estate, and to put or place and keep out on mortgage security at interest, the personal property and the proceeds from the sales of the said real estate, or with the approbation in writing, under her own hand, of my sister, Hannah W. Sterling, wife of James S. Sterling, to invest the same in the purchase of ground-rents or other real estate in the city and county of Philadelphia, or of stocks, and to collect and receive the rents, interest and income of the said trust estate and property and investments thereof, and to pay over the same rents, interest a,nd income, when and as received, unto my said sister, Hannah W. Sterling, for her own sole and separate use and support during her natural life, for -which her own receipts, under her own hand, notwithstanding her present or future coverture, or whether she be covert or sole, shall be good and valid discharges, and so that the same or any part thereof shall not be in the power, nor subject to the debts, control or engagements of her present or any future husband. And upon the decease of the said Hannah W. Sterling, then to hold, transfer and pay over the said trust estate and property and the investments thereof unto and to the use of such person or persons and in such way and manner as she, by her last will and testament in writing, or any writing in the nature thereof, to be by her signed and intended as such, notwithstanding her present or future coverture, or whether she be covert or sole, shall direct and appoint —and in 'default of such will or appointment, then to hold, transfer and p”ay over the same unto such person or persons in such shares, and for such estates and interests therein, to whom and as the same would go had she died seised thereof in fee, and possessed of the said trust estates and property and investments thereof agreeably to the then existing intestate laws of the state of Pennsylvania. And it is my will that the said trustees or the survivor of them, and the heirs, executors, administrators and assigns of such survivor, shall, and I give them full power and authority at any time or times, during the life of my said sister, Hannah W. Sterling, with her consent, to be testified by her becoming a party to the deed or deeds of conveyance, therefore to sell, assign and dispose of all or any part of the said trust real estate, and convey the same unto the purchaser or purchasers thereof in fee simple, without liability on the part of the purchaser, for any misapplication of the purchase-money. And the proceeds from such sale or sales shall be put out and invested in the city or county of Philadelphia, in mortgage security at interest or in the purchase of ground-rents or other real estate, or stock or stocks, and the investments thereof to be held by the said trustees in the manner and for the uses' and purposes and under the same powers as are hereinbefore set forth and expressed. * * *
    “ ‘ * * * Item: As regards that part of my estate, real, personal and mixed, which I am entitled to under the will of my said father, when and as soon as a final partition thereof shall be made, I give, devise and bequeath the same as follows:— * * *

      “ ‘ One full equal fifth part thereof unto my said brothers,. Thomas R. Williams and Jacob T. Williams, and the survivor of them, and the heirs, executors, administrators of such survivor for ever, to hold the said last-mentioned one-fifth part thereof in trust for the like and same uses, intents and purposes, and under the same powers and limitations in all respects as are hereinbefore specified and declared concerning the one-third of my residuary estate (excepting as before excepted), devised to them in trust for the use of my said sister, Hannah W. Sterling, and in the like manner, as though the same trusts were here at large repeated.’

      “ After the discussion upon the devise of Thomas Williams, little need be said upon the question raised by the will of Mary Williams. This will was made after the marriage of the said Hannah to Sterling, and would seem to be a trust for protection against coverture. Under the ruling in Yarnall’s Appeal, and in other cases, it would seem to be an executed trust. In one aspect it is not so strong a case for the maintenance of the trust. In Yarnall’s Appeal, the husband of the tenant for life was excluded. Here no such exclusion was attempted. The statutory canon of descent is adopted by the will in case of default of testamentary disposition. The trust, since the death of the husband of Hannah W. Sterling, must be considered as executed, and the auditor so decides.”
    The exceptions filed to this report were dismissed by the Orphans’ Court, and the report confirmed, Dwight, J., in an opinion, after some observations upon the character of the two trusts, continuing as follows:—
    “ It is not necessary to copy the clauses of the wills discussed in Ogden’s Appeal, 20 P. E. Smith 501, and Yarnall’s Appeal, Id. 335. They are substantially identical with the provisions of the two wills now before the court. In each of those cases the Supreme Court decided that the trust was for coverture only, and fell, because neither of the cestui que trusts contemplated marriage. The trust having fallen, the life-estate and the remainder united under the rule in Shelley’s case, and the cestui que trusts each -took a fee.
    “ In Earp’s Appeal, 25 P. F. Smith 119, there was not a trust for coverture, but for life; and in Ashhurst’s Appeal, 27 P. F. Smith 464, there was a trust both for coverture and for life. In each case the trust for life, as the paramount and controlling aim of the founder, was regarded. But in Yarnall’s Appeal and Ogden’s Appeal the life feature of the trust was ancillary to the trust for coverture, which was the prime, the only intention of the testators. It is this diversity in intention which required the life-estate in the two former to be kept separate as an equitable estate from the legal remainder. But the trust for coverture in the latter falling, the estate of the cestui que trust becomes legal, and thus can coalesce with the remainder under the rule in Shelley’s case.
    “ In Megargee v. Naglee, 14 P. F. Smith 216, there was a trust for coverture, with power of testamentary disposition, and remainder to the use of the cestui que trust’s heirs and legal representatives. Her husband died. It was held that the estate became executed in the cestui que trust, and it was decreed that the trustees should convey the legal estate to her.
    “ These cases, as we view them, sustain the report of the auditor. We think that the trust for coverture under each of the wills before us has fallen, and that the fee of the realty and the absolute property of the personalty, constituting the corpus of each trust, are in Mrs. Sterling.”
    From this decree two appeals were taken, and the assignments of error were that the court erred in declaring the trust under both wills executed, and that the estate to Mrs. Sterling under the will of her father was a fee simple,

      William C. Hannis, for appellant.
    — To use the-language of Chief Justice Agnew in Earp’s Appeal, 25 P. F. Smith 119, “ There are four things to be noticed in this will that clearly distinguish it from Yarnall’s Appeal, 20 P. F. Smith 335, and Ogden’s Appeal, Id. 501. The corpus of the estate is fully and distinctly invested in the trustees, and put under their control. The devise to Hannah Williams is only of the income. Her estate in the income is only for life. The principal of the estate is devised and bequeathed to those who are named in remainder. Here is plainly an active, operative trust.” ■
    In Dodson v. Ball, 10 P. F. Smith 492, Judge Agnew again says, “ The rule laid down is, that where an estate for life only is given, followed by a general power of appointment, and on failure to appoint, to children or to special heirs, the power to appoint wrill not enlarge the estate of the cestui que trust to a fee, and on a failure to appoint, the children or special donees in remainder take by purchase from the donor, and not by way of limitation as heirs of the cestui que trust Huber’s Appeal, 30 P. F. Smith 348; Ash’s Appeal, Id. 497 ; Phillips’s Appeal, Id. 472.
    It follows that Hannah W. Sterling has but an equitable estate for life ; that the legal estate is in her trustees for her life, and after her death is in the persons designated as remaindermen by the "will of her father. The life-tenant having but an equitable estate, and those in remainder a legal estate, the rule in Shelley’s case has no applicability: Bacon’s Appeal, 7 P. F. Smith 504.
    In both of the wills in this case the provision in regard to coverture is precisely the same as that in Ashhurst’s Appeal, 27 P. F. Smith 464, and the distinction which Sharswood, J., draws between that and the other decided cases on this point will apply with the same force here.

      N. H. Sharpless, for the appellee, submitted no paper-book and made no argument.
   Chief Justice Agnew

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

It is to be regretted that these two trusts have been blended in the proceeding below. To this we must attribute the remarkable confusion, by the learned auditor and the court, of two trusts so different from each other in marked characteristics. It seems the report awaited the decision in Earp’s Appeal, 25 P. F. Smith 119, but the learned auditor thought it afforded no guide; quoting that sentence in the opinion in which it is said the interpretation of the language of wills must vary with the intention of the testator, as “ precluding the attempt to discern any such guide.” The criticism has the merit of novelty, as it has always been supposed that the intention of a testator is the polar star to guide to the meaning of his language, and there is no procrustean rule on which words can be stretched to make them always fit certain legal results, whether so intended or not. Such a rule might suit city scriveners where wills follow given formulas, but never could be tolerated in those parts of the state where ignorant men draw wills, a class which far outnumbers the former. No greater outrage upon the rights of dying men could be committed than to defeat their just intentions by rules which make words and not the sense the guide of interpretation.

It is to be regretted that the learned court and auditor found no guide in Earp’s Appeal, as its principle is in a greater degree applicable to the trust under Thomas Williams’s will. That principle had been announced in Barnett’s Appeal, 10 Wright 392, and has been repeatedly re-announced: Dodson v. Ball, 10 P. F. Smith 496-7; Wells v. McCall, 14 Id. 212; Yarnall’s Appeal, 20 Id. 339; Ogden’s Appeal, Id. 507; Ashhurst’s Appeal, 27 Id. 464. The principle is that when an active trust is created to give effect to a well-defined lawful purpose of a testator in relation to his family the trust must be sustained whether the cestui que trust be sui juris or not.

In Earp’s Appeal the corpus of the entire estate was vested in the trustees with active duties. To the three children, Hannah, Anna and George, the income only for life was given, without reference to coverture, as the specific purpose of the testator to be guarded against. A power of appointment by will was conferred, but this, it has been decided repeatedly, does not enlarge the precedent life-estate: Dodson v. Ball, supra, and authorities there cited; Yarnell’s Appeal, supra; Ashhurst’s Appeal, supra. Upon a failure to appoint, the entire estate was then to be held in trust for those who would take under the intestate law as the heirs of the three cestuis que trust. Thus the trust was active; the entire corpus was to be kept in trust to execute the ultimate purpose of the testator; the three children were entitled to an equitable estate in the income only for life, and not for coverture. The remainder in the right of the three children was a legal estate, the active duties of the trustees ceasing at the death of the life-tenants and the trust being then executed: Bacon’s Appeal, 7 P. F. Smith 512; Rife v. Geyer, 9 Id. 393.

The testator had a lawful purpose to be performed, to wit: to protect his estate from all clanger of loss during the lives' of his three children, not from husbands merely, for George was in the same category with Hannah and Anna, an cl then to carry the. estate unbroken over to the children of the cestui que trust, for in the course of nature he had reason to believe they would be the heirs. The rule in Shelley’s case, therefore, had no place in the case, for the life-estate was equitable and the remainder legal. Earp’s Appeal was followed by Ashhurst’s Appeal, 27 P. F. Smith 464, in which Justice Sharswood very clearly develops the character of the former, and winds up his statement thus: “It was not a case in which the entire equitable fee or absolute estate was in the beneficiary, when the continuance of the trust is no longer necessary, and ought, therefore, to end at the volition of the cestui que trust."

Now, if we examine the will of Thomas Williams, we. shall find that it is a clearer case for the application of a principle which preserves an active trust to fulfil the purpose of the testator than either Earp’s or Ashhurst’s trusts. He gave the entire corpus of the estate to trustees, with active duties to lease the realty and put out the personalty upon real security, and to collect the rents and income and pay the same to Hannah Williams for life, and so that it should not be liable to the control or debts of her husband. Had the trust stopped here, it might have been argued with force that it was intended to protect against coverture only. But, after providing for a power of appointment by will, which we have seen does not enlarge the life-estate, the will proceeds in these words: “and for want or in default of such nomination, direction or appointment, then in trust after the decease of her, my said daughter Hannah, to and for the only proper use and behoof of all and every the child or children which she may leave, and the lawful issue of any of them, who may then be deceased, haying left such issue, their several and respective heirs, executors, administrators and assigns, in equal shares as tenants in common, such issue of any deceased child or children of her, my said daughter, taking and only receiving such part' or share thereof as his, her or their deceased parent or parents would have had and taken had he, she or they been then living.” This is followed by a provision, in case of Hannah’s death without leaving any child or children or the issue of deceased child or children, that the estate shall go over to the right heir or heirs of Hannah. Thus between the life-estate of Hannah and the contingent fee given to her right heirs (that is, the collaterals), is .interposed an estate in fee given to her children, who take as purchasers from the testator, and not by inheritance from her. The devise and bequest to the children, their heirs, legal representatives and assigns are so clear and well defined their purpose and character admit of no dispute. During Hannah’s lifetime the possibility of children continues, so that her life-estate and the ultimate devise over to her collateral heirs cannot coalesce. That child or children in such a case are words of purchase and not of limitation admits of no denial: Walker v. Milligan, 9 Wright 178; Taylor v. Taylor, 13 P. F. Smith 483-4; Haldeman v. Haldeman, 4 Wright 35-6; Yarnall’s Appeal, 20 P. F. Smith 341.

The difference between Earp’s will and the wills in Yarnall’s and Ogden’s Appeals, 20 P. F. Smith 501, was so clearly pointed out in the opinion in Earp’s Appeal it was supposed no one would fail to perceive it. In the former the bequest was to children of income only for life, irrespective of coverture, and a clear purpose appeared to protect the corpus or entire estate for the ultimate devises and bequests of the testator. In the latter the intent of the testators, as ascertained, was to vest the entire estate in fee, in one case, and vested in the other in the beneficiaries, and the trust was intended only as a protection during coverture. The trusts for coverture having fallen and no other useful and lawful purpose appearing, the trusts became executed, and the life-estate legal, as well as the remainder, and they coalesced under the rule in Shelley’s case. In the trust under the will of Thomas Williams the devise and bequest to Hannah’s children as purchasers cannot be squeezed out between the life-estate and the contingent devise over to the collateral heirs of Hannah

The trust under the will of Mary Williams stands on a different footing. In it the only purpose appearing is a protection against the husband of Hannah W. Sterling during coverture. It is, therefore, governed by the principles stated in Yarnall’s Appeal, supra. There the trust never took effect — here it failed by the death of the husband. The result is the same, however, the trust becoming executed. See the authorities collected in Megargee v. Naglee, 14 P. F. Smith 218, and in Yarnall’s Appeal, supra, 339. In each case the trust is of the income for life, but in neither is any purpose of protection, except for coverture, discernible, while the estate, by the terms of the trust, vests on the failure to appoint in the same persons who constitute the heirs under the intestate law. Hence the trust for coverture having fallen, Hannah W. Sterling has a legal life-estate with a remainder to her heirs, and by the operation of the rule in Shelley’s case the two estates meet together and constitute a fee in her.

This rule is not a technicality, as is shown in Yarnall’s Appeal, but is founded in the nature of things, and the very purpose of the testator. It is not used to determine -the meaning of a will, but its operation, when the meaning has been ascertained by the ordinary rules of interpretation. See citations from Fearne on Remainders, and Hileman v. Bonslaugh, 1 Harris 344. Hence when it is ascertained by interpretation■ that a testator has given a “life-estate to one, and a remainder of the same quality to the heirs of the same person, the estates necessarily close together, and form one estate of inheritance in the so-called life-tenant. Eor as it. is said in Yarnall’s Appeal, 342-3 : “ The remainder being limited to his heirs, he (the life-tenant) necessarily becomes the stirps or root of a line of unknown persons, not individuated by the will, and yet dependent on him as their source. They spring into recognition only at his death, for nemo est hceres viventis. In other words, they come at the bidding of the law, and not of the testator, who merely adopts them as the law turns them up in the furrow of descent. He who, at the date of the will, might have appeared to be the heir, by marriage, birth or death, may not be the heir when the will takes effect. In the very logic of the succession, the life estate, therefore, incorporates with the inheritance, because of the failure of the testator to designate any other than the legal line of descent. In short, he calls the devisee a tenant for life, yet vests the fee in him. This being the intent of the testator, it is immaterial in the will whether he describes the line of descent by a word of art, or a periphrasis, meaning the same thing.”

The difficulty met in Yarnall’s Appeal and Ogden’s Appeal was in determining the true intent of the testators, hot in the application of the proper principles. These were clear when the intent was discovered. Two important principles were re-affirmed in those cases. They had been established before. They were:—

1. That an active trust having no longer a proper object to serve will cease, when its only purpose has come to an end, and this is always so when an estate of inheritance or an absolute estate is put in trust for coverture merely. See authorities collected in MeGargee v. Naglee, 14 P. F. Smith 216.

2. That when a testator uses words intended to designate an entire line of descent, either lineal, or lineal and collateral, as an ultimate limitation of the trust, the periphrasis will be considered as equivalent to the words, “heirs of the body,” or “heirs,” as the case may be, and afford a ground for the coalescing of the life estate and the remainder, if of the same quality, thus creating a fee tail or a fee in analogy to the rule in Shelley’s case.

As these appeals stand before us, so much of the decree of the Orphans’ Court as relates to the trust in the will of Thomas Williams, is reversed, and the record is ordered to be remitted with a procedendo in accordance with this opinion. So much of the decree as relates to the trust under the will of Mary Williams, is affirmed with costs to be paid out of the estate, and the appeal as to this trust is dismissed.


text:
    Hammett’s Appeal.
    1. The distribution of a decedent’s estate among creditors as well as legatees and distributees, belongs exclusively to the Orphans’ Court, and creditors are bound to appear and claim their respective debts in this court, or be debarred from the distribution.
    2. The remedy of a creditor to establish his debt in a common-law court is not taken away thereby, but the pendency of an action in that court does not ipso facto entitle him to a share in the fund in the Orphans’ Court, and to support his right to share therein, he must prove it before the auditor.
    3. While a proceeding in a common-law court to establish a claim may be a ground for the exercise of the discretion of the Orphans’ Court in suspending the distribution for a reasonable time and for a reasonable amount, it confers no jurisdiction on the former court to withdraw the fund from the control of the Orphans’ Court.
    4. The Orphans’ Court therefore erred in making a decree postponing indefinitely the distribution of a large sum in the hands of executors, to await the action of other courts where suits were pending for claims against the estate which had not been presented to the Orphans’ Court.
    January 21st 1877.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1876, No. 28.
    This appeal was from the decree of the court made upon exceptions to the report of an auditor appointed to audit the account and make distribution of the balance in the hands of the executors of Barnabas Hammett, deceased.
    Barnabas Hammett died January 22d 1878, leaving a will, in which James H. Campbell, Daniel M. Eox and N. B. Browne were appointeddiis executors. When the executors filed their first account it was referred to an auditor, Thomas Greenbank, Esq., who found the balance for distribution to be $84,688.67, one-third of Avhich the widow of the decedent, Róbenla Hammett, claimed as her distributive share. It appeared that a number of suits against the estate, involving large amounts, were pending in various courts of the state, but no creditor appeared before the auditor to lay claim to any portion of the fund.
    The auditor, after a reference to these suits and the amounts involved therein, reported as follows:—
    “ This balance, under a reference to the auditor, which is to settle the account, and to distribute the balance, would, in an ordinary case, be distributed by the auditor among the widow and legatees, because no creditor who remains unpaid has presented and established a claim to any part of it. But taking into consideration the .pendency of the numerous suits at law, above named, which are brought to the attention of the auditor, he is of opinion that although ■they are not presented as claims upon this fund, and it could therefore he distributed without regard to them, yet, as a matter of precaution, it would he wise to retain the larger part of this balance In the hands of the executors, after awarding a small proportion of the distributive fund to the widow and legatees, until the adjudication of the next account. The auditor has therefore made distribution of one-third of the distributive balance.''’
    To this Report Mrs. Hammett excepted, alleging that the auditor erred in not distributing the whole of the balance of $84,688.67, in the hands of the accountants.
    The executors also excepted as follows:—
    “ And the accountants do especially except to the distribution of any portion of the fund at this time, because it appears that there are large claims against the estate in course of litigation, the result of which, if adverse to the executors, will more then absorb the entire personal estate.”
    The court (the opinion by Dwight, J.) held that the Orphans’ Court had not exclusive but concurrent jurisdiction of the claims of creditors against the estate of a decedent, and made a decree dismissing the exception of Mrs. Hammett, sustaining that of the executors, setting aside the distribution reported by the auditor, and ordering the balance in the hands of the accountants to be retained by them until the further order of the court.
    Mrs. Hammett took this appeal and assigned this decree for error.

      Walter D. Allen and William A. Porter, for appellant.
    — It is not contended by the appellant that the Orphans’ Court has exclusive jurisdiction of every claim against the estate of a decedent. To ascertain the amount due a particular creditor, and to enforce its payment out of the real estate of the decedent, or out of such of the personal estate as may not be in the actual control or custody of the Orphans’ Court for distribution, it is admitted the common law courts have concurrent jurisdiction. But when an executor or administrator has filed his account, the Orphans’ Court has exclusive jurisdiction to settle it, and to make distribution of the balance among those entitled to it. The power to make distribution necessarily involves the power to ascertain the amount of the debts, and every claimant who wishes to avail himself of the fund must appear and establish his claim, or lose his right to participate in the distribution of the particular fund then in hand. In the present case no creditor appeared before the auditor, whose claim remains unpaid. It was therefore the duty of the court to have made distribution of the balance: Act of 29th of March 1832, Purd. Dig. 1103, pl. 4; Act of 16th of June 1836, Purd. Dig. 1104, pl. 8; Act of 13th of April 1840, Purd. Dig. 446, pl. 200; Kittera’s Estate, 5 Harris 416; Gochenaur’s Estate, 11 Id. 460 ; Bull’s Appeal, 12 Id. 286 ; Mitchell’s Estate, 2 Watts 87; Stoever’s Appeal, 3 W. & S. 154; Weber v. Samuel, 7 Barr 499; Whiteside v. Whiteside, 8 Harris 474; Shollenberger’s Appeal, 9 Harris 341 ; Horner v. Hasbrouck, 5 Wright 179; Everman’s Appeal, 17 P. F. Smith 336 ; Mussleman’s Appeal, 15 Id. 480; Dundas’s Appeal, 23 Id. 474; Sergeant’s Executors v. Ewing, 6 Casey 75.
    The legislation which gave jurisdiction to the Orphans’ Court would not be effective if it did not mean that where the work of distributing a fund properly before the court is begun, it must be completed. Of what avail are all the powers of the court conceded to it by the decisions if they can only be exercised after the determination of every claim against the estate which may be pending in other jurisdictions. The law favors the diligent only, and those who failed to make their claim upon the fund should be left to their remedies against the remaining estate or against the distributees on their refunding bonds.

      George Bull and Henry M. Phillips, for appellees.
    — That the jurisdiction of the Orphans’ Courtis concurrent and not conclusive: Swain et al. v. Ettling, 8 Casey 489 ; Walthaur’s Heirs v. Gossar, Id. 259; McLean’s Executors v. Wade, 3 P. F. Smith 146; Van Dyke’s Appeal, 10 Id. 487; Woodward’s Appeal, 2 Wright 322.
    The Oi’phans’ Court, in the exercise of its powers as a court of chancery jurisdiction, is bound to protect the rights of creditors. The executors and accountants are trustees for creditors. The fund in their hands is a trust fund, and the court must see that the trust is fully and properly executed. The widow and heii's have no right, either equitable or legal, to any part of the trust fund until the rights of the real cestui que trustent, the creditors, have been fully secured. In administering such a trust it would be inequitable for the Orphans’ Court, having been informed of large claims against the estate, more than sufficient to absorb the fund, to hand over the trust fund to the widow and heirs.
   Chief Justice Agnew

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

Tlxe exclusive jurisdiction of the Orphans’ Court to ascertain the amount of the estates of decedents, and order their distribution among those entitled, creditors as well as legatees and distributees, is so fully settled that nothing but future legislation can alter the law. The sources of this jurisdiction, and its conclusiveness, will be found in a long line of well-considered decisions : Kittera’s Estate, 5 Harris 416 ; Whiteside v. Whiteside, 8 Id. 473 ; Bull’s Appeal, 12 Id. 286 ; Ashford v. Ewing, 1 Casey 213; Black v. Black, 10 Casey 354 ; Mussleman’s Appeal, 15 P. F. Smith 480; Everman’s Appeal, 17 Id. 335 ; Dundas’s Estate, 23 Id. 474.

In the first instance under the 19th section of the Act of 29th ■ March 1832, the application for distribution among the creditors, came from the executor or administrator, when the assets were insufficient to pay all the debts. The standing of the creditors in the Orphans’ Court under this act was not so clear ; but when the Act of 13th April 1840, sect. 1, was passed authorizing any creditor to apply for distribution, their standing became entirely certain. This act was followed by Kittera’s Appeal, and the long line of cases which now hold that the distribution of a decedent’s estate among creditors as well as legatees and distributees belongs exclusively to the Orphans’ Court. So binding is the effect of such a distribution that even the Commonwealth not having given notice of her claim, is barred from coming afterwards upon the distributed estate: Mitchell’s Estate, 2 Watts 87. This effect of the 19th section of the Act of 1832, has been held to be imperative, if the notice to creditors has been properly given as required by that section: Boyer’s Estate, 5 Watts 50 ; Stœver’s Appeal, 3 W. & S. 154. The creditors being thus bound to appear and claim their respective debts' before the auditors appointed to settle and adjust their claims, a legislative protection of their rights will be found in the provisions contained in the 20th section of the Act of 1832 (Purdon 446, pl. 199), that when any of the heirs, legatees, distributees or creditors of a decedent reside out of this state, or out of the United States, or where from other circumstances it may be expedient to give additional or further notice, it shall be given according to the discretion of the Orphans’ Court. Outside of decided cases when we examine the subject in the light of reason and necessity, the distribution of a decedent’s estate among all entitled to have it, must belong to the Orphans’ Court. It has possession of the fund, for it controls and directs all those who have its custody, and it is only through its decrees the fund can be reached. It is true the remedy of the creditor to establish his debt in a common-law court is not taken away, for this may be necessary to stop the running of the Statute of Limitations, to decide disputed and complicated questions, and make the settlement afterwards before the auditors more easy and convenient. But this does not, ipso facto, bring the pursuing creditor on the fund in the Orphans’ Court. On the contrary, the law gives a remedy to prevent a sale under execution, and to carry the creditor into the Orphans’ Court, when the condition of the estate requires it to prevent a sacrifice of the general interest. The creditor who desires to share in the fund in the hands of an executor or administrator, must present his claim before the auditors, and when there, it is subject to attack, and he must establish it. If he have already established it in a court of law, it is so much the better, but if not under the decisions heretofore cited, he must support his right to share in the fund before the auditors, by proving it. Thus it is evident that a proceeding in a common-lkw court to establish a claim, while ’ it may be a reasonable ground for the exercise of the sound discretion of the Orphans’ Court, in suspending proceedings in distribution for a reasonable time, and to a reasonable part of the estate, necessary to satisfy the demands of creditors, according to the 39th and 40th sections of the Act of 24th February 1834 (Purd. 447-8), confers no jurisdiction on the former court to withdraw the fund from the power or control of the Orphans’ Court. Of necessity, as we have seen, the latter court must proceed to distribute the fund, and cannot be hindered or delayed by actions pending in other courts, beyond a time which its own exercise of discretion may determine to be necessary. It would be a most ruinous doctrine that estates could be tied up under a claim of litigation elseAvhere, when the Orphans’ Court has full poAver to adjudicate all claims of the creditors. If it Avere so, not only legatees and distributees but domestic creditors might have to wait the bidding of distant tribunals not in sympathy and having no motive to speed a cause. Our conclusion does not affect the prerogative of other courts, but only the rights of the creditors. They may, if they choose, persist in a common-law suit to the end to reach real estate or some other fund, but if they fail to come in on a fund in due course of distribution in the Orphans’ Court, after notice of the proceeding there, they may lose their grasp upon a fund which that court alone has jurisdiction to distribute among the creditors.

We think, therefore, that the Orphans’ Court erred in trenching upon its OAvn jurisdiction so far as to permit the fund before it to avvait indefinitely the action of other courts. The decree in itself might perhaps be sustained ivith a slight modification, Avhich would give it a temporary effect merely, as a discretionary suspension until the notice provided for in the 20th section of the Act of 1832 could be given. But it is manifest this Avas not the purpose of the decree, and it must, therefore, be reversed to enable the court to make such further order as may be necessary to speed the proceeding in distribution and make it effective.

Decree reversed, the costs of the appeal to be paid out of the estate, and the record ordered to be remitted Avith a procedendo.