author: GIkeen, J. :

text:
    July Term, 1882,
    No. 21.
    January 11, 1883.
    Appeal of Frederick Collins.
    1. A valid and binding pledge can be given, of the interest of the pledgor, in a partnership to be subsequently created, so as to secure in a court of equity to the pledgee a priority of lien as against other unsecured creditors.
    2. The existence of the subject of the pledge at the time the eon-tract of pledge is made is not at all necessary. If it comes into existence afterwards, it is affected in equity by the lien stipulated for.
    3. By an instrument of writing, dated November 23,1875, 0 agreed to advance to H $10,000, which II proposed to use as capital in an undertaking of himself and W, to furnish rolling-chairs for the Centennial Exhibition, and for the purpose of securing C, H pledged to him “ all his, the said H’s, interest in the said partnership, limited,” of H and W, and further agreed to assign and deliver possession of all the said interest he holds in the partnership of II and W, that C might elect to demand such possession, and that II on request would execute all other instruments counsel would advise on purpose to carry this intention into effect. No such partnership as that of II and w was ever formed, but on February 9, 1876, a limited partnership, called the Centennial Rolling Chair Company, Limited, was organized, composed of H and ~W and four other persons, “ for the business of furnishing for hire rolling-chairs for the accommodation and conveyance of persons within the grounds and buildings of the Centennial Exhibition.” H put the $10,000, with an additional $2,410 advanced by C, into the capital of this partnership. He then died, and the fund in the Orphans’ Court for distribution was solely the product of H’s interest in the limited partnership.

      Held, that the agreement of November 23, 1875, was a pledge of H’s interest in the capital of a limited partnership, intended to be formed thereafter, and actually so formed, the purpose of which was to furnish rolling-chairs for the Centennial Exhibition, and that it sufficiently identified his interest in the partnership subsequently formed as the subject-matter of the pledge.
    4. The pledgee was entitled to take from the fund in court $10,000 and interest in preference to the general creditors of the decedent.
    5. There being no actual assignment, and no absolute or unqualified agreement to assign in the instrument of November 23,1875, it cannot be regarded as an equitable assignment.
    6. Though in all ordinary cases of pledge of personal chattels possession of the pledge by the pledgee is indispensable to the validity of the pledge, where the possession is by agreement of the parties to remain with the pledgor all are bound who claim under him except purchasers for value without notice.
    7. In a litigation for the settlement of partnership affairs between partners, a decree of a joint and several judgment in favor of one of the partners against the others fixes the several character of the judgments as against each of the latter, and it cannot be inquired into in a collateral proceeding.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of Frederick Collins from the decree of tke Orphans’ Court of Philadelphia County.

    In the Court below before the auditing judge, Hanna, P. J., the following facts appeared:
    On November 23, 1875, Frederick Collins, the accountant, and Charles F. Hulse, the decedent, made the following agreement in writing:

      “Memorandum. — Whereas, Frederick Collins has agreed to advance Charles F. Hulse $10,000, which said Hulse proposes to use as capital in an undertaking of himself and Alexander W. Wister, to furnish rolling-chairs for the Centennial Exhibition; and the said Hulse, for the purpose of securing the said Collins for the said loan, and the repayment of the same, with interest, hereby pledges to the said Collins all his, the said Hulse’s, interest in the said partnership, “limited,” of Hulse & Wister; and he further agrees to assign and deliver possession of all said interest he holds in the partnership of Hulse & Wister at any time before the repayment of said loan to said Collins, that the said Collins may elect to demand such possession, when the agreement made by him, the said Hulse, for the proper conducting of the business aforesaid, shall be assumed and executed by the said Collins, and after the repayment of said loan and interest, and the necessary expenses attendant therefor, the excess of receipts for said business shall be paid to Elizabeth D. Hulse, the wife of the said Charles F. Hulse. On the assignment of said sum and interest as aforesaid, this agreement becomes null and void, and said Hulse retains the privilege of repaying the amount at any time he may decide, and also agrees on request to execute all other instruments counsel will advise, on purpose to carry this intention into effect.
    Witness our hands and seals, this 23d day of November, 1875.
    (Signed) Chas. F. Hulse. [seal.]
    Witness at signing,
    (Signed) A. J. Dixon,
    (Signed) John Rodgers.”
    The accountant advanced and loaned to decedent the sum of $10,000 mentioned in said agreement, and also the further sum of $2,410, making a total of $12,410, which he claimed to retain out of the estate of said decedent, of which he was the executor. No such partnership as that of Hulse & Wister was ever formed, but on February 9, 1876, a limited partnership, called the “Centennial Rolling Chair Company, Limited,” was organized under the act of 2 June, 1874, and the persons who composed it were Charles F. Hulse, Thomas C. Price, Alexander W. Wister, William B. Rodgers, junior, Langhorn Wister, and Isaac Collins. The capital stock was $25,000, of which Charles F. Hulse held $12,500, and the others different sums aggregating $12,500. The certificate of organization recited that these parties “have entered into a limited partnership association for the business of furnishing for hire rolling-chairs for the accommodation and conveyance of persons within the grounds and buildings of the Centennial Exhibition.”
    The $12,410, which Collins loaned to Hulse, was traced directly into this limited partnership and constituted its capital to that extent; and the fund for distribution is the sole product of Hulse’s interest in said limited partnership.
    The account of the executor shows the balance of principal for distribution to be $18,729 53.
    The executors of George I). Parrish, deceased, also made claim to this fund. The said executors, in June, 1877, filed a bill in equity in the Court of Common Pleas, No. 2, against the members of the firm of Price, Parrish & Co., and this accountant, as executor of Charles F. Hulse, deceased, who had been a general partner in said firm, for the purpose of settling the accounts of said partnership ; and on July 10, 1880, a final decree was entered making Frederick Collins, executor of Charles F. Hulse, deceased, and certain of the partners, jointly and severally indebted to the executors of George D. Parrish in the sum of $47,192 70.
    Upon these facts, the auditing judge held that the fund should be divided pro rata between both claimants.
    The accountant thereupon filed exceptions to the adjudication ; and upon these exceptions, the Court below, Penrose, J., delivered the following opinion:
    ‘ ‘ How far a partner, retaining his interest in an existing firm, may pledge it to secure a present advance, is a question which does not arise in this case. He certainly may assign out and out, and his assignee’s title will be good as against creditors, without an actual delivery of possession of partnership effects. Such a delivery, as was said by Judge Sharswood, in Whigham’s Appeal, 13 Smith, 194, would be impossible, since neither partner has anything in the corpus of the partnership property, but only a share of what remains after the accounts have been taken, and in that case a mere notice to the other partner of the transfer was held to be sufficient.
    But when the instrument upon which the exceptant relies for the purpose of establishing his priority of right oVer the other creditors of the decedent was executed, there was no firm in existence. It recited that the borrower, Charles F. Hulse, (the decedent,) ‘proposed to use the sum loaned as capital in an undertaking of himself and Alexander W. Wister, to furnish rolling-chairs for the Centennial Exhibition,’ and as security for such loan, the interest of the said Hulse in said partnership, ‘limited’ of Hulse and Wister,’ was thereby pledged, &c., &c., the said Hulse further covenanting ‘to assign and deliver possession of all said interest he held in the partnership of Hulse and Wister, at any time before the repayment of said loan to said Collins, that the said Collins may elect to demand such possession,’ &c., &c., and also, ‘on request, to execute all the instruments counsel will advise, on purpose to carry this intention into effect.’
    Not only was the firm, the decedent’s interest in which was thus pledged, not in existence, but, as stated at the argument without contradiction, it never came into existence, the firm which three months later was formed being composed of Mr. Wister and the decedent and four others. For the purpose of this opinion, however, the firm actually entered into may be treated as that contemplated when the loan was made. The fact still remains that when the instrument stipulating for the pledge -was executed, there was no existing interest upon which it could operate. There was nothing to prevent the borrower, after obtaining the money, from using it for any other purpose, and not entering into any partnership at all. A further act was at least necessary on his part, viz: the formation of the partnership. The lender trusted to his promise that this should be done, and to the covenant that then, if so required, he would execute an actual assignment and deliver possession, so far as the subject was susceptible of possession. The stipulation as to assignment cannot, therefore, be regarded as formal simply, or as a mere covenant for further assurance. It was essential for the perfection of the lender’s title.
    It is undoubtedly true, as was said by Tilghman, C. J., in Clemson v. Davidson, 5 Binney, 398, cited by the exceptant, that ‘ any order, writing, or act, which makes an appropriation of a fund, amounts to an equitable assignment of that fund ; ’ but, as was held in that case, the principle cannot apply where the subject of the attempted appropriation was not in existence at the time. ‘ An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment. A covenant in the most solemn form has no greater effect. The phraseology employed is not material, provided the intent to transfer is manifested. Such an intent and its execution are indispensable. The assignor must not retain any control over the fund, any authority to collect, or any power of revocation. If he do, it is fatal to the claim of the assignee: ’ Christmas v. Russell, 14 Wallace, 69, 84.
    ‘ To constitute an assignment, either in law or equity, it is necessary that there should be such an actual or constructive appropriation of the subject-matter assigned as to confer a complete and present right in the assignee, even where the circumstances do not admit of its immediate exercise. A covenant on the part of the debtor to apply a particular fund in payment of the debt as soon as he receives it will not operate as an assignment, for it does not give the covenantee a right to the fund save through the medium of the covenantor, and looks to a future act on his part as the means of rendering it effectual, while the characteristic of an assignment is the ex-tinguishment of all legal or equitable interest of the assignor, and the creation of a new and independent right in the assignee: ’ 2 Select Cases in Equity, 233.
    After the formation of the partnership, it was in the power of the lender to have perfected his title by calling for an assignment, but he did not do so. His debtor died. ‘His personal estate then passed into the custody of the law for administration, and the mortgagee had no right to undertake to administer any part of it for the satisfaction of Ms own debt:’ Kater v. Steinruck, 4 Wright, 505:
    The fund came, as the account shows, into the hands of the exceptant as executor, and at that time, as we think, could have been received by him in no other capacity. It was subject to no lien, and, therefore, properly distributable among the general creditors of the decedent.
    Nor do we think that the exceptant was the only creditor having the right to come upon the separate estate of the decedent.
    The debt, to George I). Parrish’s estate was not a partnership debt. It grew out of the business of the firm of Price, Parrish & Co., of which he and the decedent had been members, but the affairs of that firm had been settled by a litigation in Common Pleas No. 2, in which it was found, and was so decreed, that of the debt of the firm to George D. Parrish, (composed of him and five others,) the decedent and three of the members were jointly and severally liable to his exeoutors for $47,-192 70, and another member, James C. Parrish, for $52,574, making in all $99,766 70.
    It is true that it was found that the debt of the decedent to the firm was but $18,352 39, and that, as between himself and the other three joint debtors, the amount should be contributed by Stephen S. Price and Thomas C. Price in the proportions mentioned in the decree. But this, while it will entitle the accountant to proceed against the parties primarily liable, can not impair the right of the creditor to recover from the decedent in the first instance. And it is clear that a debt due by any number of partners less than the whole, to one of the others, or to a stranger, cannot be regarded as a partnership debt.
    The rule which postpones partnership creditors in the distribution of the separate estate of a partner has never been extended to mere joint, as distinguished from'partnership liabilities; and even a partnership creditor by joint and several bond may elect to come in as a separate creditor, though by so doing he abandons his claim on the joint estate: Ex parte Banks, 1 Atk., 166 ; Ex parte Bevan, 10 Vesey, 107; Bell v. Newman, 5 S. & R., 90; Lindley on Partnership, *1014.”
    1st April, 1882. The exceptions are dismissed, and the adj ndication confirmed.
    The accountant then appealed, and assigned the following errors:
    The Court below erred—

      First. In dismissing the exceptions.

      Second. In confirming the adjudication.

      Third. In not awarding to the appellant, as a creditor of the decedent’s estate, and as pledgee and assignee by virtue of the writing, dated 23d November, 1875, the sum of $10,000, with interest, from the dates of advances to that amount.

      Fourth. In not awarding to the appellant, as the only creditor of the decedent’s separate estate, payment of his claim, $12,410, with interest from its date, in full and in priority to the claims of the estate of George D. Parrish against the decedent as a partner of Price, Parrish & Co.

      Q. Stuart Patterson and Richard C. McMurtrie for appellant.
    The statute of 13 Eliz., which avoids fraudulent deeds, excepts conveyances upon good consideration and bona fide. To prevent a transfer from being fraudulent as to creditors, only such delivery is required as accords with the nature of the property: Twyne’s Case, 1 Sm. L. C., 25 ; Cowper, 424, 708; 11 Wheaton, 199 ; 5 S. & R., 275 ; 4 Dallas, 280; 3 Binney, 400; 4 Ibid., 258 ; 2 Pen. & W., 263; 9 P. F. Sm., 466 ; 5 W. & S., 145; 6 Harris, 60; 3 Phila., 137, 138; 7 Barr, 89; 3 Ur., 237; 1 Phila., 104; 1 W. N. C., 442; 23 P. F. Sm., 378; 13 P. F. Sm., 194.
    The apjjellee can claim no greater right than the decedent could claim as against the appellant: Bispham’s Eq., sec. 168 ; 6 DeU., M. & U., 492; L. R. 3 C. P., 235, 248; 23 P. F. Sm., 162 ; 27 Id., 378; 11 S. & R., 377.
    The agreement constituted a pledge, or equitable assignment, although the property was not susceptible of an immediate transfer of possession: 3 L. C. in Equity, 361 (3d Am. Ed.); 2 Id., 1644 (4th Am. Ed.); Rawlyn’s Case, 4 Rep., 53; 2 S. & R., 518; 11 S. & R., 391 ; 4 Wr., 43; Hobart, 132; 18 Vt., 461; 5 M. & S., 203 ; 8 Price, 273; 1 Hare, 549 ; 10 H. L., 191; 2 Story, 361; 3 Phila., 173 ; 4 Wr., 276 ; 14 P. F. Sm., 366 ; 23 P. F. Sm., 216 ; 8 W. N. C., 195 ; 2 Story, 555; Turner & Russell, 469 ; 1 Yes., Jr., 478; and the appellant was not bound to take possession of the property pledged, the appellees being antecedent creditors.
    The death of the assignor does not prejudice the rights of the appellant as an equitable mortgagee: 9 Jur. N. S., 1220; 8 Ohio N. S., 521; 13 Id., 574 ; 3 Binn., 401 ; 2 Binn., 122.
    The fund for distribution is the separate estate of decedent, and the claim of the appellee is a partnership debt. The claim of appellant being a separate debt is, therefore, entitled to preference over the partnership debt: 5 S. & R., 94; 8 Wr., 503 ; 8 W. N. C., 456 ; 5 P. F. Sm., 252; Bispham’s Eq., sec. 517; 8 Howard, 414; 3 Kent’s Com., 65, note ; Notes on Silk & Prime, 2 L. C. in Eq., 353 ; 3 Paige, 167; 4 DeU., J. & S., 537; L. R. & Ch., 441; 1 Casey, 216 ; 4 Casey, 524 ; 8 Wr.,' 503 ; Buck, 455; Id., 347; 4 DeU., J. & S., 550; 17 Yes., Jr., 115 ; 1 Rose, 212; 1 Yes., Jr., 165 ; 21). & Ch., 186 ; 9 Yes., Jr., 588 ; 6 Paige, 20; 15 S. & R., 153 ; 8 Casey, 202; 5 P. F. Sm., 252 ; 30 Id., 250.

      William C. Hannis and H. Hunn Hanson for appellees.
    As between creditors of decedent, the agreement is invalid, whether considered as a pledge or an assignment. Any pledge or mortgage of personal property is void as to existing as well as subsequent creditors, unless delivery is made at the time, where the property is capable of delivery.
    As an assignment, there must be a present appropriation of the subject-matter to the assignee. The agreement here was only an intention to assign: 2 Select Cases in Eq., 233; 21 Wallace, 447 ; 43 Barb., 291; 22 P. F. Sm., 13; 11 Norris, 196; 14 Wallace, 69; 3 Beas., 234; 2 Jones, 66; 23 P. F. Sm., 162.
    The death created a fixed relation with regard to the creditors, the law taking hold of the estate for the benefit of all: 4 Wr., 501; 4 P. F. Sm., 200 ; 1 P. & W., 147.
    Decedent’s indebtedness to assignees was a partnership debt, there being a final settlement of the partnership accounts by the decree of the Court of Common Pleas, making the liability joint and several.
    October 2, 1883.
   The opinion of the Court was delivered by

GIkeen, J. :

If the instrument of the 23d November, 1875, constituted a valid, equitable pledge of the interest which produced the fund for distribution, the other contentions in the case become immaterial, and will not require consideration. Of course, there is no pretense of a legal lien, but a pledge in equity available to the pledgee does not depend upon the considerations which are requisite to the creation of a lien at law. The chief objection to the operation of the instrument in question as a pledge is that “the thing proposed to be pledged, that is, Hulse’s interest in a partnership between him and Alexander W. Wister, never came into existence,” and, therefore, there was nothing upon whicli the paper could operate. Designated with precision by its legal name, the interest which produced the fund was a one-half interest in the capital stock of a limited partnership, called “The Centennial Rolling Chair Company, Limited.” The partnership was organized under the act of 2d June, 1874, and the persons who composed it were Charles F. Hulse, Thomas C. Price, Alexander W. Wister, William B. Rogers, Jr., Langhorne Wister, and Isaac Collins. The capital stock was $25,000, of which Charles F. Hulse held $12,500, and the others different sums, aggregating $12,500. The agreement creating the partnership was dated, signed, and acknowledged on February 9 th, 1876, and recorded on the 11th, two days later. The certificate of organization recites that the parties, naming them all, “have entered into a limited partnership association for the business of furnishing, for hire, rolling-chairs for the accommodation and conveyance of persons within the grounds and buildings of the Centennial Exhibition, under and by virtue of the act of Assembly of the Commonwealth of Pennsylvania, approved the 2d day of June, A. D. 1874. The fifth clause of the certificate is in the following words: “The general nature and character of the business intended to be transacted by the said partnership association is the furnishing, for hire, of rolling-chairs for the accommodation and conveyance of persons within the grounds and buildings of the Centennial Exhibition, and the office of said association is to be located in the city of Philadelphia.” There is nothing in the other parts of the certificate which conflicts in any manner with the foregoing description of the purpose, character, and object of the undertaking or enterprise in which the parties to it engaged.

The paper of November 23,1875, thus describes the subject of the pledge: ‘ ‘Whereas, Frederick Collins has agreed to advance Charles F. Hulse $10,000, which said Hulse proposes to use as capital in an undertaking of himself and Alexander W. Wister, to furnish rolling-chairs for the Centennial Exhibition ; and the said Hulse, for the purpose of securing the said Collins for the said loan and the repayment of the same with interest, hereby pledges to the said Collins all his, the said Hulse’s, interest in the said partnership, “limited,” of Hulse and Wister; and he further agrees to assign and deliver possession of all said interest he holds in the partnership of Hulse & Wister at any time before the repayment of said loan to said Collins, that the said Collins may elect to demand such possession when the agreement made by him, the said Hulse, for the proper conducting of the business aforesaid shall be assumed and executed by the said Collins, and after the repayment of said loan and interest, and the necessary expenses attendant therefor, the excess of receipts for said business shall be paid to Elizabeth D. Hulse, the wife of the said Charles F. Hulse.”

This paper is very defectively and inaccurately drawn, and it is owing to this fact that the present litigation has arisen. There was no partnership of Hulse & Wister, or of them with other persons, in existence at the time the instrument was executed, yet, in the second and third clauses of the paper, a partnership is referred to as already in existence, and in the definite name of Hulse & Wister. It is this confusion of reference that occasions the dispute as to the meaning of the whole instrument. To understand just what it was that the parties were negotiating about, we must refer to the recital in which the very subject-matter of the joint enterprise which was proposed’ to be established or engaged in is more accurately described. In substance, it is this: Collins agrees to lend Hulse $10,000 to be used by the latter as capital in an undertaking of himself and Wister to furnish rolling-chairs for the Centennial Exhibition. Now, this “undertaking” had not then been brought into existence, but that is precisely what was subsequently done by the organization of the limited partnership. Hulse and Wister did thereby engage “in an undertaking” to furnish rolling-chairs for the Centennial Exhibition. It is true others joined them in the enterprise, but that circumstance does not alter the fact that Hulse and Wister engaged in it, and it is entirely immaterial, as the interests ■ of the other parties do not affect any present question between these parties. If Hulse and Wister had alone established the partnership and the others had subsequently acquired their interests, it could hardly be pretended that the partnership referred to in the paper had never come into existence, yet whether the interests of the other parties were acquired originally or subsequently can certainly make no difference. At least three persons would be absolutely requisite to the creation of 'any “limited” partnership under the act of 1874, and as that kind of a partnership appears to have been contemplated by the paper, other persons than Hulse and Wister must necessarily have joined therein. Moreover, there is no express engagement or necessary inference that other persons were not to be interested in the proposed partnership, and the fact that there were such is therefore not inconsistent with the actual intent of the parties in their description of the subject-matter of the pledge. It seems to us the only material question in the controversy on this branch of the case is as to the identity of the subject-matter of the pledge with the description of it contained in the paper. It is not at all disputed that the fund for distribution was the sole product of Hulse’s interest in the capital of “an undertaking” “to furnish rolling-chairs for the Centennial Exhibition.” It is equally certain that Hulse and A. W. Wister were parties to that undertaking. It is not pretended there was any other undertaking of this nature in which these two persons were interested, and it is asserted, and not denied, that the very sum of $10,000 which Collins loaned to Hulse was traced by the testimony directly into this limited partnership, and constituted its capital to that extent. The actual sum loaned was even more — $12,410—the whole of which went into the partnership. Now the material part of the description of the subject of the pledge contained in the paper of November 23, 1875, is “ capital in an undertaking to furnish rolling-chairs for the Centennial Exhibition.” This is a description of the thing itself, and it is literally complied with by the subject-matter which produced the fund in Court. The subsequent language is rather of reference than description, thus : “The said Hulse’s interest in the said partnership ‘limited’ of Hulse & Wister.” There was no “partnership limited” previously described, and the only antecedent of the whole phrase is the “undertaking” to furnish rolling-chairs. It is perfectly plain to us that the second phrase is a mere careless and inartistic reference to the actual subject more accurately described in the first sentence. The two are not necessarily inconsistent. They wrere intended to relate to, and indicate, the same thing. Moreover, the parties may then have supposed that the partnership, when formed, would be named “Hulse & Wister,” and therefore referred to it by that name, and yet, when it came to be established, may have decided to give it another name. If the actual partnership subsequently created was the same one which the parties in reality contemplated and provided for in executing the written pledge, it is certainly unimportant whether the name of it, which at best was arbitrary, remained the same or was changed. Had the words, “his, the said Hulse’s, interest in the said partnership, limited, of Hulse and Wister,” been the only words in the instrument describing the subject of the pledge, the case would have been different. But such is not the fact, and we read the instrument in accord with the manifest intent of the parties when we hold that it was a pledge of Hulse’s interest in the capital of a limited partnership intended to be formed thereafter, and actually so formed, the purpose of which was to furnish rolling-chairs for the Centennial Exhibition. This being so, the paper must have the same legal effect as if it had contained an accurate description of the subject of the pledge, that subject having produced the fund for distribution. This raises the only remaining question, to wit: Whether a valid and binding pledge can be given, of the interest of the pledgor, in a partnership to be subsequently created, so as to secure to the pledgee a priority of lien as against other unsecured creditors. In such a case, the subject of the-pledge is necessarily incapable of manual possession or of actual delivery. It is in no sense a specific chattel, and even as a chose in action, it cannot be enjoyed in possession until after the partnership has been closed, the debts paid, the rights of the partners as between themselves adjusted, and the resulting amount due the pledgor ascertained. The interest comes into existence as soon as the partnership is created, but it is an uncertain quantity until dissolution and final settlement. It is intangible as a res. It may be something or it may be nothing. But in legal and in equitable contemplation, it is an entity which may be subject to any kind of contract relation which is possible to such forms of property. Partnership interests are of infinite variety and of enormous extent and value. In the business world they are' the subjects of daily transactions in all civilized societies. Within the limitations which arise out of their peculiar characteristics, they may be dealt with as other personal property. One objection to the validity of the pledge in the present case is that the interest in question had no existence at the date of the instrument creating- the pledge, and for this reason also there was nothing upon which it could operate.

Indeed, that was the ground upon which the learned Court below decided the case against the appellant. But in other forms of property that objection does not avail. In the case of Railroad v. Wœlpper, 14 P. F. S., 366, Sharswood, J., said: “But it is objected that no person, natural or artificial, can grant what he does not possess or own at the time of the grant. Qui non Tiabet, ille non dat.

Yet, even at law, this rule is not without some qualifications. A man may grant the future accretions, or increase of any subject which he owns at the time of the grant, as all the wool which shall grow on his sheep for a term of years.” * * * “ But it is not necessary to maintain that the rolling-stock and equipments of a railroad are part of its accretions and fixtures, so as to make the transfer good at law. It is unquestionably good in equity. Contingent estates and interests, though not assignable at law, are assignable in equity ; and they may also be the subject of a contract, which, when made for valuable consideration, will be specifically enforced when the event happens.” * * * “It is a plain corollary from these principles that a court of equity will treat a mortgage of property to be subsequently acquired, whether it be real or personal, as a binding contract, which attaches to the thing when acquired. Equity considers that as actually done which a chancellor would decree to be done.”

Judge Story, in his work on Equity Jurisprudence, section 1039, says: “To make an assignment valid at law, the thing which is the subject of it must have actual or potential existence at the time of the grant or assignment. But courts of equity will support assignments not only of dioses in action and of contingent interests and expectancies, but also of things which have no present, actual, or potential existence, but rest in mere possibility, not, indeed, as a present positive transfer, operative in presentí, for that can only be of a thing in esse, but as a present contract, to take effect and attach as soon as the thing comes in esse.” In the case In lie Ship Warre, 8 Price, 273, an assignment of the freight and earnings of a voyage yet to be made was upheld in equity. Lord Eldon said: “I am not aware that it has ever been ruled in equity, and I apprehend that it has not, that the freight of a voyage that is intended to be made, although not an existing voyage, may not be assigned in equity.” In Mitchell v. Winslow, 2 St. Rep., page 631, the Court sustained the validity of a mortgage of all tools and machinery which might be purchased, and all cutlery stock which might be manufactured or purchased during a period of four years from the date of the mortgage. In the case of Holroyd v. Marshall, 10 House of Lords cases, 191, Westbury, L. C., said: “But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a court of equity would compel, him to perform, and that the contract would, in equity, transfer the beneficial interest to the mortgagee or purchaser immediately on the property being acquired. This, of course, assumes that the supposed contract is one of that class of which a court of equity would decree the specific performance. If it be so then, immediately on the acquisition of the property described, the vendor or mortgagor would hold it in trust for the purchaser or mortgagee, according to the terms of the contract.” Lord Chelmsford said: “At law property non-existing, but to be acquired at a future time, is not assignable; in equity, it is so. At law, although a power is givén in the deed of assignment to take possession of after-acquired property, no interest is transferred unless possession is actually taken; in equity, it is not disputed that the moment the property comes into existence the agreement operates upon it.” These principles have been recognized and enforced in this Court. In McWilliams v. Nisley, 2 S. & R., 518, Gibson, J., said: “In equity, a grantor conveying land lor which he has no title at the time shall be considered a trustee for the grantee, in case, at any time afterwards, he should acquire title.” In Chew v. Barnet, 11 S. & R., 391, it was said: “The facts presented constitute the ordinary case of a conveyance before the grantor has acquired the title, in which the conveyance operates as-an agreement to convey, which, when the title lias been subsequently acquired, may be enforced in chancery.” In Bayler v. The Commonwealth, 4 Wright, 43, Strong, J., says: ‘ ‘ But though a conveyance of an expectancy as such is impossible at law, it may be enforced in equity as an executory agreement to convey if it be sustained' by a sufficient consideration. This has often been decided. It is unnecessary to prolong these citations. They prove clearly that the existence of the subject of the pledge at the time the contract of pledge is made is not at all necessary. If it comes into existence after-wards, it is affected, in equity, at once by the lien stipulated for.

There is no doubt that the principles illustrated by the-foregoing decisions are applicable to cases of sales, absolute assignments, and mortgages. But owing to the-l>eculiar character of the instrument executed by Hulse, in this case, we have had much doubt whether they were applicable to this particular contract. The difficulty has-been that while, there is a distinct pledge, in terms of' present operation, of the interest of Hulse in the contemplated undertaking and partnership, there is no actual-assignment and no provision for absolute assignment.

An assignment is provided for, and we could readily hold it to be an equitable assignment, if it were not for the fact that the obligation of Hulse to make it only arose-after demand made on the part of Collins, and no such demand was ever made. The obligation to assign, therefore, not having arisen under the express terms of the contract, and there being no actual assignment, and no absolute or unqualified agreement to assign, contained in the instrument, we find what seems to us an insuperable difficulty, under the authorities, in the way of treating-this paper as an equitable assignment of Hulse’s interest in ■ the proposed partnership. We think, also, it is not practicable to regard the indebtedness of Hulse to George D.1 Parrish’s estate as a partnership debt. Whatever might-have been its quality in t-his respect prior to the decree finally made in the litigation for the settlement of the affairs of Price, Parrish & Co., when that decree was' made, it was a several as well as a joint judgment against Hulse’s executor. We do not see how we can go behind that decree in this case to inquire into the original character of the indebtedness, or into the reasons for making it several as well as joint. It is the final judgment of a Court, of competent jurisdiction, having the parties and the cause before it.

The question then recurs, Can the lien of the appellant be enforced as a technical pledge of Hulse’s interest in the partnership ? His equity is very great. The testimony proves distinctly that the money loaned by him to Hulse went directly into the partnership, and formed part of its capital, and, therefore, was the means — the sole means— of producing the fund to be now distributed. At the time it was loaned, it was upon a distinct and absolute pledge of Hulse’s interest, in terms of present operation. It could not operate immediately, because the subject of the pledge was not then in existence; but,-as we have heretofore seen, that circumstance is, in equity, immaterial, and it became operative as soon as the interest was created. It is effective, therefore, so far as such a pledge of such a subject can be effective. Is it sufficiently so to give the appellant the money which is the product of the interest pledged, as against the appellee % The appellee is not a purchaser ; he is but a creditor, and he has not the rights which could be asserted by a purchaser for value, and without notice. He is not a creditor subsequent to the creation of the partnership, but anterior thereto ; and, therefore, cannot assert that his credit was given on the faith of the apparent ownership of this interest by Hulse. He is not a creditor who had levied on the interest of Hulse and sold it upon execution, and purchased it at such sale. He is but a general creditor of Hulse, without any equity, except such as all creditors of that class have upon the assets of their debtor. Notwithstanding all this, he is entitled to share this fund, pro rata, with the appellant, unless the latter can sustain his claim of lien upon the fund.

The only difficulty that lies in the appellant’s way, in this respect, grows out of the consideration that possession of the subject of the pledge is an almost universal requirement in the law of pledge to perfect the pledgee’s title. It may be dispensed with in certain cases, but the current of the authorities is that in such cases there must be a substitute for it, in the way of a transfer of the title, in such manner that the pledgee can exercise a right of possession without any further act of the pledgor. Formerly no distinction was taken between a pledge and a mortgage of chattels. They were both regarded as a security for a debt, and the title of the pledgee was considered as substantially the same in both cases. In the case of Cortelyou v. Lansing, 2 Caines, Cases in Error, 200, Chancellor Kent points out an important distinction, which was then but recently observed, to wit: That in a pledge, the general property remains with the pledgor, and only a special property passes to the pledgee, and hence, on a failure to redeem, the pledgee has no right to sell or appropriate the pledge, while a mortgage of chattels passes the absolute title, subject to a defeasance, and upon a failure to redeem, the title of the pledgee becomes perfect. _ Not stopping to inquire whether this would be the law in Pennsylvania at this day, it is, nevertheless, the fact that a mortgage in its ordinary form contains an absolute transfer, or assignment, of the title, with a provision for a defeasance, upon payment of the debt, added. In this respect, therefore, there being an actual assignment of the title, there is sufficient, in equity, to create an available lien in the mortgagee. Nothing further remains to be done by the mortgagor to perfect the mortgagee’s title. But in the case of a bare pledge, without an assignment, or, at least, an unqualified agreement to assign, the title of the pledgee seems to be defective without a further act of the pledgor. The distinction is, doubtless, refined; but it appears to be substantial.

There is, however, a class of cases in which it is disregarded. They are cases in which the possession of the pledge is, by the agreement of the parties, to remain with the pledgor. It is held that as the pledgor is bound notwithstanding this provision of the contract, so all are bound who claim under him, except purchasers for value and without notice. The doctrine has been applied in the case of specific chattels, and it would apply with much more force in the case of expectancies or intangible interests. Thus in'the case of Reeves v. Capper, 5 Bing., N. C., 136, one Wilson, the captain of a ship, jjledged his chronometer, which was then in the possession of the makers, to the Messrs. Capper, the defendants, who were the owners of the ship, in consideration of their advancing him 501. and allowing him the use of the instrument during the voyage on which he was about to depart; after the voyage, he placed it at the makers and there pledged it to the plaintiff, for whom, the makers being ignorant of the pledge to the defendants, agreed to hold it; the money advanced by the defendants not having been repaid, it was held that the property in the instrument was in the defendants. In point of fact, the chronometer was delivered by the makers to the defendants’ clerk, who immediately re-delivered it to the pledgor, and it was contended by the plaintiff that the defendants, having parted with their possession, had lost their lien, but it was held that as this was done in accordance with the terms of the contract, the lien was not lost. For this purpose the Court said that Wilson, the pledgor, could be regarded as the servant of the pledgees, and that his possession was their possession. But substantially it was because the possession was in accordance with the terms of the contract that the lien was enforced even against another bona fide creditor who. had loaned his money upon the pledge of the same chattel, while in the control of the pledgee, and without notice of the previous pledge. In the case of Meyerstein v. Barber, L. Rep., 2 C. P., 38, Nills, J., said: “But in order to complete the pledge, it is not necessary that there should be an actual delivery of- the chattel to the pledgee ; it is sufficient, as was decided in Reeves v. Capper, 5 Bing., N. C., 136, (E. C. L. R., vol. 35, p. 54,) 6 Scott, 877, and the other cases to which reference was made in the course of the argument-, if there be a constructive delivery. It is not necessary that the subject of the pledge should actually pass from the hands of the pledgor to those of the pledgee. The property in the goods may pass, even though they remain in the possession of the pledgor, provided they do so by virtue of a contract between the parties which makes the custody of the pledgor, the custody of the pledgee.” In the case of Fletcher v. Morey, 2 St. Rep., 555, James Reed & Co., of Boston, agreed with Fletcher, Alexander & Co., of London, by a written agreement, that the latter firm should honor bills drawn on them in payment of goods purchased for Reed & Co., and to secure Fletcher, Alexander & Co., it was agreed that all the property purchased by means of the credit, and the proceeds thereof, “and the policies of insui’ance thereon, together with the bills of lading, are hereby pledged and hypothecated to them as collateral security for the payment as above promised, and héld subject to their order on demand, with authority to take possession and dispose of the same at discretion for their security or re-imbursement.”

Goods were purchased for Reed & Co., and bills drawn on and accepted by Fletcher & Co. to pay for them. Reed & Co. became bankrupts. Some of the goods came to the assignees in bankruptcy, and some to Reed & Co., for which the bills of lading were received by them and indorsed to the plaintiffs, who filed a bill against the assignee to have a lien declared in their favor against all the goods, and the proceeds of such as were sold. The Court sustained the bill, holding that the plaintiffs were entitled to recover on their contract of pledge, although as to some of the goods they never had any kind of possession of them, and as to others to which they were entitled to possession, by virtue of the bills of lading, they had parted with it. Story, J., said, on page 565 : “ This, then, being the established principle, the first question which arises in the case is, whether there is any equitable lien or right, or claim, under the agreement which ought to be enforced specifically in equity against the shipments made to and for Messrs. Reed & Co., or the proceeds thereof, so far as they can be distinctly traced in the hands of the assignee, and upon this point I entertain no doubt whatever. In equity, there is no difficulty in enforcing a lien, or any other equitable claim, constituting a charge in rem, not only upon real estate, but also upon personal estate, or upon money in the hands of a third person, whenever the lien, or other claim, is a matter of agreement against the party himself and his personal representatives, and against any persons claiming under him, voluntarily or with notice, and against assignees in bankruptcy, who are treated as volunteers ; for every such agreement for a lien or charge in rem constitutes a trust, and is, accordingly, governed by the general doctrine applicable to trusts.” * * * “So that, asa matter of trust directly growing out of, and provided for, by contract, the present case falls directly within the principle above stated. The goods, and the proceeds thereof, are expressly, by the agreement of the parties, £ pledged and hypothecated5 as collateral security for the advances. * * * “ But it is said that the agreement, if enforced, will operate as a fraud upon the creditors of Reed & Co., under their bankruptcy, and, indeed, that an agreement of this sort, so far as respects creditors, is void as against the policy of the law, and in derogation of the rights of creditors. Now, it is not pretended, nor even suggested, that any fraud was, in fact, contemplated by the parties, or any of them, upon the creditors. The transaction was bona fide, for a valuable consideration; and for future advances to promote the commercial business of the firm of Reed & Co., and not to withdraw any of their existing funds from their creditors. * * How, then, it is against the policy of the law, I confess myself unable to perceive, unless we are prepared to say that taking collateral security for advances upon existing or future property on the part of a creditor, without taking possession of the property at the same time, or when it comes in esse, is, per se, fraudulent. Possession is ordinarily indispensable at the common law to support a lien, but even at the common law it is not absolutely indispensable in all cases. This is shown by the recent case of Dodsley v. Varley, 12 Adolph & Ellis, 632, where goods had been sold and deposited in the warehouse of a third person for the vendee ; but still it was understood between the parties that the vendee was not to remove them until payment therefor, and it was held by the Court that, although the warehouse must be considered as the vendee’s warehouse, and be in the actual possession of the goods, yet, ‘ consistently with this, the vendor had not what is commonly called a lien determinable upon possession, but a special interest, sometimes, but improperly, called a lien, growing out of the original ownership, independent of the actual possession, and consistent with the property being iii the vendee.’ What is this but allowing the existence of an equitable lien, notwithstanding the possession of the goods is parted with, good between the parties, and good as to all persons not claiming under the vendee as tona fide purchasers, for a valuable consideration, without notice ?

But I take it to be clear that not only liens, but mortgages of personal property, are perfectly good and supportable between the parties', and against creditors, where there is no fraudulent intent, and the possession remains in the owner or mortgagee of the property, and is consistent with the deed and the arrangements made between the parties.” Judge Story concludes his view of the case thus: “So that the possession of the property by Messrs. Reed & Co., in the present case, is not, in my judgment, a badge of fraud, or against the policy of the law, or in any manner to be deemed inconsistent with the just rights of their creditors, and, therefore, the agreement is binding and valid to give a lien or equitable charge upon the property in the hands of the assignee, fit to be enforced in the present suit.” In other words, although this was a case of a pledge of personal chattels, wherein, in all ordinary cases, possession by the pledgee is indispensable to the validity of the pledge, and the title to, and possession of, the goods agreed to be pledged had passed to the pledgor, the mere agreement for such possession suffices to protect the lien, and was good against the parties and the general creditors of the pledgors. The same doctrine was held and applied in the case of Mitchell v. Winslow, 3 St. Rep., 630, in which Judge Story, on page 644, said: “It seems to me a clear result of all the authorities, that wherever the parties by their contract intend to create a positive lien or charge, either upon real or personal property, whether then owned by the assignor or contractor or not, or if personal property, whether it is then in esse or not, it attaches in equity, as a lien or charge upon the particular property, as soon as the assignor or contractor acquires a title thereto, against the latter, and all persons asserting a claim thereto, under him, either voluntarily, or with notice or in bankruptcy.” He then proceeds to answer the argument that the possession of the property remaining in the mortgagor would operate as a constructive fraud upon the rights of creditors. After showing it was inapplicable in cases of mortgages upon real estate, he says : “And as to chattels, there is as little question that where a mortgage or a lien is created on chattels by contract, it is entirely competent for the parties to agree that the possession and use thereof shall be retained by the mortgagor until the breach of the condition, or by the debtor, until the creditor shall assert his rights against it as a security for the debt.” Although this was the case of a mortgage of chattels, the decision was not put upon the ground that there was a transfer of title, but upon the broader ground of an agreement for the possession by the owner, and a lien for the lender, and in all such cases it was held the creditor could avail himself of his lien against creditors of the debtor, by force of the agreement for the lien. Judge Story cites two cases, both of which were agreements for liens merely, though in one, Crowfoot v. London Dock Co., 3 Cromp & Mees, 637, there was a mixed possession of the chattels, both by the creditor and the debtor. In the other, Hawthorn v. Newcastle and North Shields Railway Co., reported in 3 Ad. & Ell., N. S. page 734, note b, the lien was limited to certain machines, implements, and materials, (used by and belonging to a contractor in building a bridge,) which might be upon the lands or ground where the bridge was being built. It was held that by necessary implication the agreement for the lien included property which was upon other lands where the work was being carried on in the popular sense, so that the company might be considered as having possession of the articles there placed.

In both of these cases, the chattels belonged to and were in the possession and use of the debtor, and might at any time be removed by him, but the lien was enforced chiefly on the ground of the agreement, and partly because there was a mixed possession of both debtor and creditor. In Macomber v. Parker, 14 Pick, 497, which was a case of a pledge by a brickmaker, of bricks to be made in the future, to the lessees of the yard to secure them for advances, the lien was enforced againt creditors of the pledgee. The Court said, on page 505: “It was an agreement for the pledging of the bricks as they should be made. It is true that where the property is to be thereafter acquired it is n<?t strictly and technically a pledge; it is rather an hypothecation; but when the title is acquired in futuro, the right of the pledgee attaches immediately upon it.” Here the brickmaker was in possession of the yard, and hired men, and manufactured the bricks, and he was also the agent of the plaintiffs, who were assignees of the lessees, for selling the bricks. In all respects he had the actual possession of the premises and the bricks, but the Court considered that, with the agreement for a lien, and the technical legal possession of the assignees of the lessees, there was a sufficient basis for sustaining the lien, although against the creditor of the pledgee, who was, to all intent and purposes, the owner and in possession of them.

The foregoing cases all relate to liens upon specific chattels, as to which it is almost universally necessary that possession should accompany the pledge in the hands of the pledgee, in order to validate his lien. But we have seen that this requirement may be dispensed with if such is the agreement of the parties, and the lien of the pledgee may be enforced by virtue of the contract. It seems to us that this doctrine applies with much greater force to cases where the subject of the pledge is a mere intangible right, incapable of delivery or of manual occupancy, and especially where it is to come into existence after the contract of pledge is made, and where the personal effort of the pledgee is necessary, both to its subsequent existence and its actual maintenance. All these features concur in the present case. The thing pledged is an interest in a partnership to be created in the future. Such an interest is described by Shakswood, J., in Whigham’s Appeal, 13 P. F. S., onp. 198, as “an incorporeal-intangible thing — a right to an account and to their share of the balance after all tbe debts are paid and all equities between tbe .parties are adjusted.”

By tbe very terms of the paper of 23d November, 1875, this proposed partnership was to be created by the act of Hulse and others, and, of course, it could only be maintained by the joint acts of himself and his partners. Now, it is an inevitable inference, both from the character of the transaction and the words of the paper, that it was the understanding and agreement of Hulse and Collins, that Hulse should be in possession of this partnership interest because Hulse contracts that he will assign and deliver possession of the interest to Collins at any time on demand of the latter, and thereafter Collins should assume and execute the business of the partnership in place of Hulse. All this presupposes the actual primary and continuous possession of the interest by Hulse until the assignment is made. Such being the case, we have no difficulty in reading this paper as an actual present pledge by Hulse to Collins of a partnership interest which he was to acquire in the fir ture with the money loaned him by Collins, that Hulse was to be in possession of the interest until such time as Collins might demand an assignment of it, and upon such demand being made, Hulse was to make the assignment and “to deliver possession of all said interest” to Collins. This being so, the interest was subject to the operation of the pledge in equity from the moment it came into existence. It was binding upon Hulse, notwithstanding his possession, because such was his contract, and for that reason it is- binding upon all claiming under him, except purchasers for value and without notice. The appellees’ testator was not such a person, but a mere general creditor, whose right is inferior and subordinate to that of the appellant. We hold, therefore, that the appellant is entitled to take out of the fund for distribution the sum of $10,000, with interest from date of the loan, by virtue of his equitable lien upon Hulse’s partnership interest, the proceeds of which constitute the fund. As to the remaining $2,410 of his claim, he is an unsecured creditor, and can only take a dividend pro rata with the appellees and other creditors, if there are any.

Decree reversed and record remitted, with directions to the Court below to distribute the fund in the hands of the accountant in accordance with the foregoing opinion, the costs of this appeal to be .paid by the appellees.

Clark, J., dissents.


source: Caselaw Access Project

author: Clark, J.:

license: Public Domain

text:
    January Term, 1883,
    No. 28.
    March 5, 1883.
    Conrow’s Appeal.
    1. Where a testator devised real estate to his children and in a sub- ■ sequent item of his will provided that all the bequests are “ given to my three children during their natural lives, and not to be sold or disposed of by them. At the decease of all or either of them, it is to descend to their heirs and legal representatives;” Held, that the children took a fee in said real estate, and that the general restraint upon the right of alienation was void.
    2. The will further provided that “ I ... do hereby give, devise and bequeath unto my executors . . all my estate, real, personal, and mixed, whatsoever and wheresoever, in trust for the purpose herein specified and subject to the limitations and reservation in items before mentioned,” and that “ the final settlement is to be made when myson. Alfred T., arrives at the age of twenty-five years, if living; if not, when he would be that age,” the whole will showing the intention that the distribution should not take place until that time. Held, that the effect of the language is to postpone the time when the fee may take effect in possession to the arrival of Alfred T. at the age of twenty-five years, giving the executors the right to collect the rent in the meantime ; and that the trust so created is not contrary to the act of 18 April, 1853, providing against trusts for accumulation.
    3. It is one plain duty, in construing a will, to harmonize its provisions throughout, if that construction is reasonably within the probable intent of the testator, and if the will is equally susceptible of two different constructions, that is to be preferred which reconciles its different provisions and brings them into some consistent plan of disposition.
    4. The construction must be that which is consistent with the whole scheme of the will, and particular expressions that would stand in the way of the intent of the testator are to be construed in subordination to it or to be disregarded.
    Before Mercur, C. J. ; Gordon, Paxson, Trukkey, Sterrett, Green, and Clark, JJ.
    Appeal of Anna Alida Conrow and Joseph D. Conrow, guardian of Alfred T. Conrow, a minor, from the decree of the Court of Common Pleas, No. 1, of Philadelphia County, in the matter of the estate of Thornton Conrow, deceased.
    Thornton Conrow died March 15, 1882, leaving a last will and testament, dated July 1, 1881, which was verbatim and literatim as follows:
    . Will of Thornton Conrow. Be it remembered that I, Thornton Conrow, merchant, of the city of Philadelphia, being of a sound mind, memory, and understanding do publish and declare this my iast will and testament, hereby revoking and making void all former wills by me at any time made.

      Item 1. I direct that my funeral be conducted in a plain and becoming manner.

      Item ¡2. I direct that all my debts and funeral expenses be paid as soon as practicable out of the first moneys that may come into the hands of my executors.

      Item 8. I give and bequeath, until the final settlement of my estate, direct my executors to pay annually unto Sarah Chew, daughter of William Brown, deceased, if she so long lives, the sum of one hundred dollars ($100) in semi-annual instalments of fifty dollars each, on the first days of January and July successfully. In the event of her surviving till the final settlement of my estate, I hereby give and bequeath, and direct my executors to pay, to Samuel Twomy, son of Sarah Chew, of Ham monton, N. J., the sum of five hundred dollars in cash and in lieu of the annuity mentioned in this item, to be held in trust for the benefit of Sarah Chew during her life, and the remainder, after her death, to the said Samuel Twomy and.his heirs absolutely.

      Item I I give and bequeath and direct my executors to pay Alice Roach, at the final settlement of my estate, should she then be living, the sum of $250. I also give and bequeath and direct my executors to pay the said Alice Roach (long of my household) an annuity of $50, from the time of my decease, during, and until the final settlement of my estate, should she so long live.

      Item 5. I give and bequeath unto my great nephew, Thornton Conrow Lippincott, son of Darling Conrow Lippincott, the sum of one hundred dollars ($100), and direct my executors to. pay the same, without interest, when my son, Alfred Thornton, shall arrive at the age of twenty-five years, if he, Thornton Conrow Lippincott, should so long live ; if not living, to then merge into my estate.

      Item 6. I give and bequeath and direct my executors to pay Thornton Conrow, son of Joseph B. Hancock, upon his arriving at the age of twenty-five, the sum of fifty dollars ($50); if he should not so long live, then the amount is to merge into my estate.

      Item 7. I give and • bequeath and direct my executors to pay to my niece, Lydia L. Creen, at the final settlement of my estate, should she then be living, the sum of fifteen hundred dollars ($1,500.) I also give and bequeath and direct my executors to pay the said Lydia L. Creen an annuity of $90, from the time of my decease, during and until the final settlement of my estate, should she so long live.

      Mem, 8. I give and bequeath unto Darling Conrow Lippincott one fourth of whatever sum of money he may be owing me or my estate at the time of my decease, hereby releasing and discharging him from the one fourth part of the debt due (or unpaid) from him at my decease; and I further order and direct that the said Darling Conrow Lippincott shall and be required to.pay annually the sum of $1,000 on the principal of the remaining three fourths of said debt; that he shall also pay annually interest on the three fourths of said debt, at the rate of four (4) per cent, per annum. In the event of there being an unpaid balance due from said Darling Conrow Lippincott at the time of final settlement, I direct that the same be divided into three equal parts, and notes given by said Lippincott in such separate amounts, adding interest at the rate of four (4) per cent, per annum, payable annually, together with $300 of the principal on each note; that one of said notes be passed by my executors to each of my said children as part of my said estate,.and that my children shall release and equit my said executors from the same, as the payment has been made in money.

      Item, 9. I give and bequeath to my son, William Henry, the store No. (5) five North Water street, valued by me at twelve thousand dollars ($12,000); also, a farm near Port Norris, Cumberland county, N. J., known as the William Love farm, valued at two thousand dollars ($2,000.)

      Item 10. I give and bequeath to my daughter, Anna Alida, the dwelling, No. 1912 Spring Garden st., valued by me at fourteen thousand ($14,000) dollars.

      Item 11. I give and bequeath to my son, Alfred Thornton, three houses, Nos. twelve hundred and three, 1205, and 1207 Potts st., valued by me at four thousand five hundred ($4,500) dollars, and the undivided one half part of a court on Chenango st., owned by Precillia G. Cuthbert and myself, one half valued at three thousand ($3,000) dollars, and a farm in Burlington county, N. J., near Medford, containing about one hundred and thirtyfonr acres, known as the Sharp farm, valued at six thousand dollars ($6,000.)

      Item 1%. All the bequests to my children in nine, ten, and eleven to be free and clear of all incumberance. If there should be any incumberance against any of the property described in items 9, 10, and 11 at my death, the same is to be paid off by executors as any other debts that I may owe within three years after my death; and my said executors shall pay the interest on the same from my joint estate until the principal is paid off. All the bequests in items nine, ten, and eleven is given to my three children during their natural lives, and not to be sold or disposed of by them. At the decease of all or either of them, it is to descend to their heirs and legal representatives, except my son, William Henry. He may at any time sell the Love farm, heretofore described in No. 9. If I should sell or dispose of any of the property bequeathed to my children before my decease, then my child is to receive the amount of said propperty so disposed of at the price named in cash from my estate within three years from my death, with interest, to be paid annually from my death at five (5) per cent., untill the said principal is paid to him, her, or them. The final settlement is to be made when my son, Alfred T., arrives at the age of twenty-five years, if living; if not, when he would be that age.

      Item IS. The rest and remainder of my estate I give and devise and bequeath in equal parts, share and share alike, unto each of my children, William Henry, Anna Alida, and Alfred Thornton, and to his, or her, or their issue; and in default thereof in any case to the survivors or survivor, his, her, or their issue absolutely and forever. In the event of the death of either of my said children, leaving issue, before the final settlement and distribution, said issue, my grandchild or grandchildren, to take and receive the sum of my said deceased child.

      Item 11¡.. From the time of my decease untill my estate shall be fully settled my said executors shall act as trustees of my children, and shall advance such sum or sums of money as may be required for the support and education. Interest shall be charged upon all such advances from the time of payment till the final settlement, and such advances, with interest, shall be a charge upon each share or legacy respectfully.

      Item 15. It is my will and purpose, and I hereby order and direct my interest in propperty known as the Long-wood farm, situated in Baltimore county, Maryland, shall not be sold or conveyed away by my executors or children until my son, Alford Thornton, shall, or would if living, arrive at the age of twenty-five years.

      Item 16. It is my will and purpose, and I hereby order and direct, that my one third interest in propperty situated in the State of West Virginia, owned by Benjamin Rich and R. D. Wood’s Sons and myself, shall not be sold or conveyed before my son, Alford Thornton, shall arrive at the age of twenty-five years, if living; if deceased, not until he would of been twenty-five years of age if lie had so long lived, unless they can sell at a fair price — not less than one dollar per acre.

      Item 17. I order and direct, positively, beyond question or cavil, that if any of my heirs or legatees shall be dissatisfied with the provisions of this my last will, and commence proceedings in law to test the same, for any cause whatsoever,* I direct that the person or persons so doing shall be deprived of all right and benefit in my estate, except that left to them during their natural lives.

      Item 18. For this purpose of my will, I, Thornton Con-row, do hereby give, devise, and bequeath unto my executors, hereafter named, all my estate, real, personal, and mixed, whatsoever and wheresoever, in trust for the purpose herein specified, and subject to the limitations and reservation in items before mentioned, I hereby authorize and empower my said executors, and the survivor of them, to sell and dispose of all, or any portion, of the residue of my real or personal estate, at public or private sale, for such price or prices, and upon such terms and conditions, and at such times or time as to them in their discretion, or the survivor of them, may seem best, and to grant and convey the same to the purchaser, or purchasers, his, her, or their assigns, from all liability for, in, or on account of the purchase-money, the application therof; and they, my executors, are not to give any security in this or any other State where said propperty may be so situated.

      Item 19. I nominate and appoint my esteemed friend, Burtis Barber, and my oldest son, William Henry, to be the executors of this my last will and testament, or the survivor of them.
    In witness whereof, I have set my hand and seal to this my last will and testament, all these sheets of paper, on this first day of July, eighteen hundred and eighty-one (1881).

      Note. — The interlining in item twelve was done before signing, it being between the last two lines in that item.
    Thornton Conrow, [seal.]
    March 21, 1882. Letters testamentary were granted to Burtis Barber. The testator left no widow, but three children, William H. Conrow, Anna Alida Conrow, and Alfred T. Conrow, a minor, for whom Joseph D. Conrow was appointed guardian.
    William H. Conrow died April 15, 1882, intestate, unmarried, and without issue. In his lifetime he had been a member of the firm of Conrow, Barber & Co., which was composed of the testator, William T. Barber, and the said William H. Conrow, and occupied, under a lease, the premises No. 5 Water street, referred to in Item No. 9 of the will.
    The rent accruing was claimed by the executor and also by Anna Alida Conrow, and the guardian of Alfred T. Conrow.
    The surviving partner, William T. Barber, then filed a • bill against all of the parties claimant by way of inter-pleader.
    The Court below entered a decree that the executor was entitled to receive the rents until the time fixed by the testator for the final settlement.
    Anna Alida Conrow and Joseph D. Conrow, guardian, then appealed, assigning that the Court erred in entering the decree, and in not decreeing that the appellants were exclusively entitled to receive the rents.

      8. Morris Wain for appellants.
    In Item 12, the word “heirs” is a word of limitation, and the rule in Shelley’s case vests a fee in William H. Conrow: Theobald on Wills, 219 ; Price v. Maxwell, 28 Penna., 23 ; Porter’s Appeal, 45 Id., 201 ; Yarnall’s Appeal, 70 Id., 335; Doebler’s Appeal, 64 Id., 9 ; Criswell’s Appeal, 41 Id., 288. The word “descend” shows the idea of limitation: Haldeman v. Haldeman, 4 Wr., 30; Criswell’s Appeal, 41 Penna., 288; Allen v. Markle, 12 Casey, 117; Quillman v. Custer, 7 P. P. Sm., 125. The words “legal representatives” are merely superadded words of limitation, and not sufficient to change the technical meaning of the word heirs : Paxson v. Leaffert’s, 3 Rawle, 59 ; Nice’s Appeal, 14 Wr., 143; Physick’s Appeal, 14 Wr., 128 ; Abbott v. Jenkins, 10 S. & R., 296 ; Moss v. Sheldon, 3 W. & S., 160.
    In Item 18, the words “all the property subject to the limitations, &c.,” mean that all except the specific devises in Items 9, 10, and 11 are to be held in trust.
    A trust for the education and support of a person sui juris until a minor reaches the age of twenty-five years is void under the act of 1853, relating to accumulations: Washington’s Est., 75 Penn., 102; Mitcheson’s Est., 11 W. N. C., 547. A general restraint upon the right to alien a fee is void: Curtis n. Longstreuth, 8 Wr., 297; Doebler’s Appeal, 14 P. P. Sm.. 9 ; Criswell’s Appeal, 5 Wr., 288 ; Jauretche v. Proctor, 12 Wr., 466 ; McWilliams 1). Nisly, 2 S. & R., 513 ; Reifsnyder». Hunter, 7 Harris, 41.

      John IT. Sloan for appellee.
    The trust is not in violation of the act 18 April, 1853: Purdon’s Digest, 1245. This act applies against accumulations after majority of any person entitled.
    There is nothing in the rule in Shelley’s case to prevent the estate from remaining in the hands of the executors until the time fixed for final settlement, at which time it might be conceded they would take a fee in possession: Sheet’s Appeal, 2 P. F. Sm., 258 ; 4 Kent’s Com., 220; Findlay ». Riddle, 3 Binney, 153 ; Powell v. Board of Dom. Missions, 13 Wr., 59 ; Bacon’s appeal, 7 P. F. Sm., 504 ; Shirey v. Postlethwaite, 22 P. F. Sm., 41. The general intent of the testator was that the whole estate should remain in his executor’s hands until the youngest son should be twenty-five years of age. Where there are contradictory clauses the last must take effect: Sheetz’s Appeal, 1 Norris, 213 ; Lewis’ Est., 3 Wh., 162 ; Hitchcock v. Hitchcock, 11 Casey, 393 ; Yarnall’s Appeal, 20P. F. Sm., 335; Horwitz v. Norris, 10 P. F. Sm., 261.
   March 5, 1883.

— -The opinion of the Court was delivered by

Clark, J.:

This contention arises upon a bill in equity, in the nature of a bill of interpleader, filed by William T. Barber, surviving partner of Thornton Conrow, deceased, against Anna Alida and Alfred T. Conrow, surviving children, and Burtis Barber, executor of the last will and testament of said Thornton Conrow, deceased.

The bill recites that Thornton Conrow died on the 15th day of March, 1882, after having made a will, dated July 1st, 1881, which, on the 21st day of March, 1882, was duly admitted to probate, and letters testamentary thereon granted to Burtis Barber by the register of wills of Philadelphia, a copy of which will was annexed to and made part of the bill; that the said decedent left no widow surviving him, but left three children, viz: William H., Anna Alida, and Alfred Thornton, the last named being a minor of fifteen years; that William H. died April 15th, 1882, intestate, unmarried, and without issue ; that the testator at his death was the owner of the premises No. 5 North Water street, in the city of Philadelphia, and the firm of Conrow, Barber & Co., of which the plaintiff was the sole surviving partner, were tenants occupying the said premises at a yearly rental of $1,000, payable in quarterly installments of $250 each, one of which said payments was due May 1st, 1882 ; that this rent was demanded by the executor, Burtis Barber, on the one hand and by Anna Alida and Alfred Thornton Conrow, the surviving children, on the other, and that, legal proceedings were threatened.

The prayer of the bill was that the said, defendants be ordered to interplead for their respective claims. Joseph I). Conrow was appointed guardian ad litem of Alfred Thornton and made party to the record.

The separate answer of Burtis Barber, Anna Alida and Joseph D. Conrow, guardian aforesaid, admitted the facts stated in the bill; the respondents maintained their respective claims, and submitted themselves to the order and decree of the Court; thus the issue was framed.

The following is a copy of the last will and testament of Thornton Conrow, deceased; and the only questions, submitted arise upon its proper construction. (His Honor here read the will.)

There can be no doubt but that the several devises made in the 9th, 10th, and 11th items of the last will and testament of Thornton Conrow, deceased,, created estates in fee, in the devisees therein named respectively. The word “heirs” is presumptively a word of limitation, and not of purchase, and we are of opinion that there is no sufficient evidence, found in the will, of the testator’s intent to deviate from the general rule ; indeed, the evidence is rather corroborative of the legal presumption, and tends to establish that it was the testator’s actual purpose to devise the fee; he probably intended what he expressly directed, that at the decease of all or either of his children, the lands devised to them should descend to their respective heirs and legal representatives. '

Certainly, the paramount and general intent of the testator, as shown by the entire will, is, that the heirs are to take qua heirs ; therefore, they take by desceñe, and the inheritance must, under the rule, vest in the ancestor. And although, in a subsequent clause, he provides that the lands referred to are given to his said children during their natural lives, and not to be sold or disposed of by them, this particular intent must necessarily be subordinated to the general and controlling principle of his will: Physick’s Appeal, 14 Wright, 136 ; Doebler’s Appeal, 14 Smith, 17. A general restraint upon the right of alienation is void, and that clause of the will should be disregarded: Criswell’s Appeal, 5 Wright, 288 ; Naglee’s Appeal, 33 Penn. St., 89, Jauretche v. Proctor, 48 Penn. St., 466. Are the lands described in Items 9, 10 and 11 of the will embraced in this trust? If they are, then the estate of the testator must remain in the control of the executor under the trust “-until the final settlement,” and the accruing rents are properly payable to the executors as trustees; if not, the rents are payable to the appellants ; this is the main question in the cause. The trust thus created is undoubtedly an active one, embracing the full temporary management and control of a large part, at least, of his estate, the sale and conveyance of the “residue” of his realty at the discretion of his trustees, the disposal of his personalty, the payment of annuities, contingent legacies, debts and incumbrances out of the “joint” or residuary estate, and the support and education of his children; the trust being thus active, and subsisting in the executors, we are required to consider its extent. The general and paramount intent of the testator, as we gather it from the body of the will, seems to be that the distribution of his estate should not take place until his son, Alfred Thornton, should arrive at the age of twenty-five years. The testator is everywhere throughout the will emphatic and precise upon this particular. He refers to this “settlement” some fifteen or more times in the several clauses of the instrument, designating the time either as “ the time of the final settlement,” or “the time when Alfred Thornton shall arrive at the age of twenty-five years;” it is clear that the will was only to have its full effect then. It is also worthy of remark that, whilst this will is drawn in consecutive paragraphs, each of which contains a distinct and separate provision, at the close of item 12, which has for its proper subject the nature and extent of the estate devised in Items 9, 10, and 11, the testator concludes, as if the remark had some significance in that place, “ the final settlement is to be made when my son Alfred T. arrives at the age of twenty-five years, ” &c., &c.

In Item 12 he reserves to William Henry the right to sell the Love farm, described in Item 9. In Items 15 and 16 he directs that the Longwood farm and the W est Virginia lands shall not be sold or conveyed until Alfred Thornton shall arrive at the age of twenty-five years, and the authority to the executors subsequently given is thus limited.

The devise to his executors, as trustees in the 18th item, is of “ all my estate, real, personal, or mixed, whatsoever and wheresoever, in trust, for the purpose herein specified, and subject to the limitations and reservations in items before m entioned. ” It is contended that the ‘ ‘ limitations and reservations” to which the devise in trust is subject are the previous devises in Items 9, 10, and 11, and that they are not therefore embraced in the trust. We do not think so, as those devises could not, in any sense, be termed “limitations” or “reservations,” as, however, in previous clauses of his will he had reserved out of the trust a right t'o William Henry to sell the Love farm, and limited the power of his trustees in the sale of specific portions of his estate, we infer these limitations and reservations to have been intended, subject to which the trust certainly was intended to be. It is observable that the writer of this will, although defective in orthography, possessed some knowledge of legal phraseology and of the meaning and use of technical words, and it is highly probable that the words “reservations” and “limitations” were rightly applied, especially as there were proper subjects in the body of the will to which they were strictly applicable. The testator certainly created an estate in fee to his children in Items 9,10,11, and 12, and the only effect of the language used in Item 18 is to postpone the time when the fee may take effect in possession. It is one plain duty in construing a will to harmonizeits provisions throughout, if that construction is reasonably within the probable intent of the testator; and if the will is equally susceptible of two different constructions, that is to be preferred which reconciles its different provisions, and brings them into some consistent plan of disposition. To give the words used in Items 9,10, and 11, the effect claimed for them by the appellants is to defeat the force of the language used in Item 18. Whilst to give the latter its proper effect, in no way defeats the estate created in the previous clauses, but simply fixed a time when they shall come into the possession and control of the devisees. The intention of the testator is not to be gathered from the terms of a particular devise, the construction must be that which is consistent with the whole scheme of the will, and particular expressions that would stand in the way of the general intent of the testator are to be construe"d in subordination to it or disregarded: Middleswarth v. Blackmore, 74 Penn. St., 414; Loebler’s Appeal, 64 Penn. St., 9 ; Schotts’ Estate, 78 Penn. St., 40; Reek’s Appeal, 78 Penn. St., 432.

The testator, claiming the light to dispose of his property according to his own judgment and discretion, was determined that the disposition which he had made would be accepted by those beneficially interested without objection, and hence, in Item 17, he imposed in terrorem a penalty upon any of Ms beneficiaries who might take, legal proceedings against it. Having thus provided, he says : “For this purpose of my will, I, Thornton Conrow, do hereby give, devise, and bequeath unto my executors,” &c., &c. If the creation of the trust was in part “for this purpose” of his will, it was manifestly his purpose to embrace in the trust the devises made to those who could,, of course, be the only possible contestants of his will. He provides for the maintenance and education of his children by directing the trustees to “advance” such sums of money as may be required for that purpose, and that such advances, with interest thereon, shall be a charge upon each share or legacy, &c., thus recognizing the fact that they had no available means of maintenance or support outside the trust. Nor was the trust thus created in violation of the act of April 18,1853, providing against trusts for accumulations after the majority of the persons entitled. Such was not the purpose or intent of the testator, nor the effect of upholding the trust; there were debts to pay, incumbrances to remove, and advances to make for the maintenance and education of the children and all the income may be needed for this support and education. At all events, it is quite sufficient for the, present to say that the act referred to forbidding trusts for accumulation by its express terms does, not avoid such trusts in toto, but only for the excess beyond the statutory period: Purdon’s Digest, Vol. 2, p. 1245 ; Brown v. Williamson’s Executors, 12 Casey, 338. Alfred Thornton being still in his minority, the act could not, by any construction, be held to defeat this trust.

We are, therefore, of opinion that the premises No. 5 North Water street, in the city of Philadelphia, devised to William Henry Conrow, were devised to him in fee, but, that by the creation of the temporary trust in the executors, the time of its enjoyment in possession was postponed to take effect when Alfred Thornton Conrow should arrive at the age of twenty-five years, that this was an active subsisting trust, and was not contrary to the act of April 18, 1853, providing against trusts for accumulation.

Therefore, the decree is affirmed, and the appeal dismissed at the costs of the appellants.


author: Steerett, J.:

text:
    January Term, 1888.
    No. 228.
    March 26, 1883.
    Elkins v. The Susquehanna Mutual Fire Insurance Company.
    Where a point of law has been reserved at the trial, but neither the point reserved nor the facts upon which it arose were stated on the record, it is error for the Court to subsequently enter judgment on the point, non obstante veredicto.

    Before Mekcur, C. J., and Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 2, for the City and County of Philadelphia.

      Assumpsit by William L. Elkins, trading as William L. Elkins & Company, against the Susquehanna Mutual Fire Insurance Company, of Harrisburg, upon a policy of fire insurance.
    There was no bill of exceptions, but from the notes of testimony taken at the trial in the Court below, before Hare, P. J., the following facts appeared:
    The plaintiffs testimony was that Robert Crane was agent for the defendant, for certain purposes, at the time the policy was issued. The company wrote the policies and returned them to him; he had no certificate of appointment as agent; he received applications for insurance, and those he approved he sent off to the companies, among others to the defendant; he received an application from T. J. Lancaster, an insurance agent acting for the plaintiff, and forwarded it to the defendant; he received the policy in return, recorded it in his books, and delivered it to Lancaster; he had a running account with Lancaster, who paid him, March 8,1881, $100, and on March 15, 1881, $102 02, the balance of the account; he sent the defendant a check for the premiums, which was declined ; the fire occurred March 9, 1881.
    The secretary of the company testified that Crane was never authorized to act as agent in any way; the company never received the premium upon the policy; the policy was not sent to Crane as an agent; it was sent to him just as to the assured ; he was allowed a rebate on the premiums received through him.
    The policy provided, inter alia :

      ‘ ‘ This company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor be actually paid and the deposit is made.”
    Counsel for the defendant asked the Court to charge, inter alia:

    I. “That under the terms of the policy, the company, defendant, would not be liable thereon until the premium was actually paid and the deposit made, and that there is no evidence in this case that the premium was so paid or deposit made, and, therefore, the policy never took effect, and the plaintiff cannot recover.”
    Upon this point the Court said:
    “ First point is declined, but I reserve the question that there is no evidence.”
    The docket entries contained the following:
    “December 5, 1882. Yerdict for plaintiff, $771 01.”
    And also the following:
    “December 29, 1882. Rule discharged, and judgment for defendant on point reserved.”
    The plaintiff then took this writ of error, assigning as errors, inter alia, that the Court erred in entering judgment on the point reserved.

      Charles B. MeMichael and Alexander P. Colesberry for plaintiff in error.
    The points reserved do not appear upon the record in any way, and did not when judgment was entered in the Court below. The record merely shows a verdict for plaintiff for $771 01. It was therefore error to enter judgment for the defendant; judgment should have been entered for plaintiff or a new trial granted: See Ferguson v. Wright, 61 Pa., 262; Winchester v. Bennett, 4 P. F. S., 510.

      James C. Sellers for defendant in error.
    The reservation does not appear upon the record. The points reserved were all points submitted by the defendants and appear in the charge of the Court. The record shows a judgment upon these points, and the judgment of the Court apon them non obstante veredicto. It is expressly, entered “onpoints reserved:” Koons v. Telegraph Company, 12 W. N. C., 49. The legal presumption is that the judgment is right: Miller v. Hershey, 9 P. F. Smith, 64.
    April 30, 1883.
   — The .opinion of the Court was delivered by

Steerett, J.:

The act of March 28, 1835, Pard., 497, pi. 21, now applicable to the Common Pleas of Philadelphia county, authorizes the judge presiding, “when he thinks it expedient, to reserve questions of law, which may arise on the trial of a cause, for the consideration of all the judges of said Court sitting together.” The object of this departure from the common law mode of procedure, was to enable the judge conducting the trial to submit disputed questions of fact to the jury and take their verdict, if in favor of the plaintiff, subject to the opinion of the Court in banc on the cardinal question or questions of law involved in the case; so that, after due consideration, judgment may be finally entered by the Court, either in favor of the plaintiff, on the verdict, or for the defendant, notwithstanding the verdict, as the case may require. The reservation of controlling legal questions, which cannot be fully considered during the hurry of trial, is the act of the Court, and should always be made matter of record at the time. It is accordingly said by Mr. Justice Black, in Irwin v. Wickersham, 1 Casey, 316: “ If a point of law be reserved on the trial of a cause, the point, and the facts upon which it arises, must be stated on the record, in order to authorize the Court to enter judgment non obstante veredicto.” The judgment in every such case necessarily depends on a proper application of the law to the state of facts out of which the reserved question arises; and hence the necessity for stating upon the record the facts as well as the questions of law arising therefrom. When a verdict is taken subject to the opinion of the Court in banc, “the facts upon which the questions of law arise should be found by the jury, or agreed upon by the parties, and should be distinctly stated, and the judgment to be pronounced upon their solution should also be specifically stated: ” Robinson v. Myers, 17 P. F. Smith, 18. The same principle is recognized in several other cases, among which are, Wilson v. Steamboat Tuscarora, 1 Casey, 317; Winchester v. Bennett, 4 P. F. Smith, 510; Wilde v. Trainor, 9 lb., 439 ; Ferguson v. Wright, 11 lb., 258. In the latter it is said, “ every reservation of a question should place distinctly upon the record what the point reserved is, and the facts out of which it arises.” It is both reasonable and necessary that it should be so, because, in addition to what has been said, the parties have a right to except not only to the judgment on the reserved question, but also to the manner in which it may be reserved. This cannot be satisfactorily done, nor can the judgment be properly reviewed, unless the reservation, substantially in the form above suggested, is distinctly made part of the record. In the record before us the verdict, as recorded, is absolute, not subject to the opinion of the Court in banc. The entry of “judgment for defendant on point reserved” is the first and only thing on the record to indicate that a point or question of law was in fact reserved. Assuming that it might be inferred from that entry that a point was reserved, there is nothing whatever to indicate what the question was, or the facts upon which it arose. It is suggested that these matters are sufficiently shown by the notes of trial. These notes are no part of the record, but if they were they would-fail in this particular case to furnish such evidence of a proper reservation as the record itself should exhibit. In the case mainly relied on by defendant in error, Miller v. Hershey, 9 P. F. Smith, 64, the reserved question was distinctly set forth on the record. What is there said in regard to presumptions in favor of the regularity and legality of judgments, contrary to the verdict, was foreign to the questions involved in that case, and cannot be regarded as authority for a proposition that would be in direct conflict with the authorities above cited, and contrary to the true intent and meaning of the act above referred to. It is unnecessary to consider questions, intended to be raised, touching the merits of the case. In the absence of anything upon the record to show what the point reserved was, or the facts upon which it arose, we think the learned Court erred in entering judgment for defendant non obstante veredicto.

Judgment reversed, and a veniref 'acias denovo awarded.