text:
    Kuhns and Wife versus Turney.
    If a mechanic or material-man would successfully charge the estate of a feme covert for work and labor done or materials furnished, he must not only prove on the trial but also set forth in his claim filed that such work or material was necessary for the proper improvement or repair, as the case may be, of her separate estate.
    November 1st 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sharswood and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 170.

      Scire facias, sur mechanics’ lien by Gr. W. and A. J. Turney, trading as Turney & Bro., against Joseph H. Kuhns and Plarriet Kuhns, his wife, the said Harriet being the contractor and owner, and John Sindorf, contractor.
    The claim filed set forth, inter alia, that the amount claimed to be due is $445.52, with interest thereon from the 28th October 1876. The same being for work done and materials furnished continuously within six months last past for and about the erection and construction of said building and on the credit of said building, and the said work was done, and the said materials so furnished, with the consent of said Harriet Kuhns, wife of said Joseph H. Kuhns, and for the improvement of the estate of the said Harriet Kuhns. The particular items, amounts and dates when said materials were furnished, and work done, being specifically set out in the bill hereto annexed and made part hereof, and being furnished by the authority and with the consent of the said Harriet Kuhns.
    The defendants pleaded nil debet, payment, &c. “And for further plea, averred that the said debt was not contracted by the said Mrs. Harriet Kuhns herself, nor by any person authorized by her so to do, she being a married woman. That the said debt was contracted with the said John Sindorf by the said plaintiffs, by himself, and upon his own credit, and that the said plaintiffs failed or neglected to enforce payment from him, he being of sufficient ability to pay; the said Mrs. Kuhns having long prior to said lien being entered, paid the said Sindorf in full of her contract with him for the building said house.”
    At the trial it appeared that Mrs. Harriet Kuhns, wife of Joseph H. Kuhns, Esq., was the owner in fee in her own right of a lot of ground near Grreensburg borough, in Westmoreland county, and entered into a contract with John Sindorf, to erect a dwelling-house on the same for the sum of $4000, he to furnish all the material and do the work. Sindorf erected the house and was paid the $4000. Turney & Bro., in the course of the work, furnished to Sindorf various articles of hardware, and also did some roofing and spouting, which they charged to Sindorf, as shown by their bill, amounting to $445.04. Turney & Bro-, alleging that Sindorf never paid them, filed their mechanics’ lien against the building and lot of ground, and issued their scire facias to recover the same.
    At the trial of the cause the defendants below asked the court to instruct the jury that the plaintiffs could not recover in this action, as they failed to set forth in their pleadings any averment that the materials furnished and work done were for the necessary repair or improvement of the separate estate of Mrs. Harriet Kuhns — that being a married woman she could only contract for necessary repairs or improvements, and this must be averred in the pleadings and shown by the proof. The court reserved the question and the jury found for the plaintiffs, and after argument ana consideration of the reserved question, directed judgment to be entered on the verdict in an opinion, inter alia, saying :—
    “ A married woman’s right to contract debts for the improvement of her real estate has its authorization in the 6th section of the Act of 1848, and not in the 8th: Murray v. Kees et ux., 11 Casey 384. In the 6th section the word “ necessaries” is not used (as in the 8th), and in it is she empowered to own, use or enjoy her separate estate. Improvement is essential to the use and enjoyment. Conceding that there may be a limit to the extent of the improvement for which she may bind herself, yet, inasmuch as a married woman may improve, and as the word improvement carries with it the idea of betterment, it is not too much to hold that the presumption is with the reasonable necessity of the improvements, when contracted for by her. This presumption would, of course, be liable to be rebutted by anything on the face of the lien negativing the reasonableness of the improvements, by plea and proof on the part of the defendant. There is nothing on the face of this lien tending to show that the improvement was other than reasonable, or any defence taken in affidavit or plea on this ground, and the presumption remains that the improvement was reasonable.”
    Motion to enter judgment for defendant non obstante veredicto refused, and leave given to enter judgment on the verdict.
    The plaintiffs took this writ alleging that the court erred:—
    1. In holding that the pleadings were sufficient to enable the plaintiff to recover.
    2. In saying, “ that it is not too much to hold that the presumption is with the reasonable necessity of the improvements, when contracted for by her.”
    3. In entering judgment for the plaintiffs on the verdict on the reserved question.

      J. F. Wentling, for plaintiffs in error.
    A married woman being incapable of making any contract at common law, and placed in this respect in the same grade as persons non compos, infants, &c., the legal presumption would be against either the reason or necessity of any contract she might make, and therefore the law for her protection requires that the necessity of it should be shown by the party seeking to charge her estate, and he should set forth in his pleadings that the repairs and improvements were necessary, and it must so appear on the record, before he can offer any evidence to the jury. What are necessaries is a question for the jury, and the issue must be raised by the plaintiff and supported by his proof: Parke et ux. v. Kleber & Bro., 1 Wright 251: Mohney v. Evans, 1 P. F. Smith 80.
    In Dearie v. Martin, 28 P. F. Smith 55, it is held that “ the claim should set forth substantially all the facts necessary to the validity of the lien.” The divestiture of a wife’s title under a mechanic’s lien must depend on the record, and it must contain all that is essential to bring the debt within the spirit and meaning of the Act of 1848: Finley’s Appeal, 17 P. F. Smith 453 and 441; Dearie v. Martin, supra; Berger v. Clark, 29 P. F. Smith 340; Shrifer v. Saum, 31 Id. 385 ; Lloyd v. Hibbs, Id. 306 ; Parke v. Kleber, supra.

      Punter, Plingensmith, McGonnell and P. P. Laird, for defendants in error.
    Where the wife is sought to be charged in respect of her separate estate for a contract liability under the 8th section of the Act of 1848, it must be alleged on the record and proven that she contracted the debt, and that the debt was incurred for articles necessary for the support of the family. But when, under the provisions of the 6th section of the Act of 1848, she contracts a debt herself, or causes it to be done by another, whom she has authorized, in the purchase of real estate in her own right or in the impi’ovement of real estate owned by her, the law does not require any allegation on the record that in either case it was necessary: Murray v. Keys, 11 Casey 391; Patterson v. Robinson, 1 Id. 82; Lloyd v. Hibbs, 31 P. F. Smith 306.
    January 6th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

This is a scire facias by which the plaintiffs below sought to charge the separate estate' of a married woman. The claim filed sets forth, inter alia, that, “ The amount claimed to be due is $445.52, with interest thereon from the 28th of October 1876. The same being for work done and materials furnished continuously, within six months last past, for and about the erection and construction of said building and on the credit of said building, and the said work was done, and said materials furnished, with the consent of said Harriet Kuhns, wife of said Joseph Kuhns, and for the improvement of the estate of the said Parriet Kuhns.” Under the instruction of the court, a verdict was rendered for the plaintiff, the question being reserved whether the allegation in the claim that the work was done and the materials were furnished for the improvement of the estate of Harriet Kuhns, without the further allegation that such improvement was necessary, was sufficient to charge her separate estate. Afterwards the court, on motion, entered judgment on the verdict. In this we think there was error. In Murray et al. v. Keys and Wife, 11 Casey 384, and in Findley’s Appeal, 17 P. F. Smith 453, it was held, first, that, in order to charge a married -woman’s property, it must appear from the record that the debt charged is within the letter or spirit of some one of the exceptions of the Act of 1848; second, that the divestiture of a wife’s title, under a mechanics’ lien, must depend upon what appears by the record, and not merely upon proof that she had consented to the contract under which the claim was filed. These cases are followed and approved in Dearie et ux. v. Martin, 28 P. F. Smith 55; Lloyd et ux. v. Hibbs, 31 Id. 306; and Shrifer v. Saum, Id. 385. It follows that if there is a failure to set forth on the record, or to establish by proof, anything that is required by the Act of Í848, in order to charge a married woman’s separate estate, the plaintiff must fail.

Strictly, however, by the act itself, not only would the plaintiffs’ claim be discarded, but every one of a like character, for the common-law powers of the feme covert are not by it enlarged, except in the single case in which she is authorized t'o óontract debts for necessaries for the support of her family. It is argued, on part of the plaintiffs below, that the sixth section of the act empowers a married woman to charge her estate separate, on her own contracts, to any extent she may think necessary. This, however, results from a misconception of the proviso which forms part of that section, for it has been held by this court that that proviso relates exclusively to debts contracted by her before marriage: Clyde v. Kaiser et ux., 8 Casey 85; Bear’s Admr. v. Bear, 9 Id. 525. It has also been held that this act was not intended to take away any of the safeguards which the law had thrown around her property, and that her right to use and enjoy is enlarged, but not her power of disposition. That she may charge her separate estate with debts, created for necessary repairs or improvements, results not from the words of the statute, but rather from construction and implication. If she is to enjoy her property, it must needs be that' she have the power to put and keep it in a proper condition for use or profit, but this power arises only ex necessitate rei, and where the necessity ends there ends her power. This is as far as the present legislation permits us to go, and it is well that it should be so, otherwise, the property of married women would fall an easy prey to weak or designing husbands and crafty speculators. As it is, with the help of mechanics and material men, it is quite possible for wives to improve themselves out of their estates, and it is sincerely to be hoped that neither by construction nor by'legislation will this possibility be resolved into a probability.

It has, indeed, been seriously doubted whether we have not already gone beyond the intent of the statute, and too far relaxed the common-law rule governing the contracts of married women; but it is impossible to see how, under a strict application of that rule, a feme covert could properly preserve and enjoy her estate, and it would therefore seem to be proper, in order to give the act its intended force, to allow her to contract for necessary improvements and repairs. But it will be seen, by what has been already said, that this power must be limited by the requirements of necessity. It follows, that if a mechanic or material-man would suecessfully charge the estate of a feme covert, for work and labor done, or material furnished, he must not only prove on the trial, but also set forth in his claim filed, that such work or material was necessary for the proper improvement, or repairs, as the case may be, of her separate estate.

The judgment is reversed, and it is now ordered that judgment on the reserved point, non obstante veredicto, be entered for the defendants.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Swift’s Appeal. Griffin’s Estate.
    A testatrix gave the residue of her estate to her two sisters, after certain specific devises and general legacies, and authorized and empowered her executors to sell all of her estate, real, personal and mixed wheresoever found. After the payment of the debts and legacies there was a large surplus of cash in the hands of the executors and considerable real estate unsold. Held, that the executors having -sold all that was necessary to carry out the provisions of the will, the power of sale conferred upon them was exhausted.
    November 4th 1878.
    Before Agnew, C. J., Mercur, Gordon and Trunkey, JJ. Sharswood, Paxson and Woodward, JJ., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1877, No. 249.
    Appeal of Rév. E. P. Swift from the decree of the court dismissing his petition praying for a citation to the executors of the will of Margaret Giffin, deceased, to show cause why an order should not issue for a sale of the residuary estate of said decedent, including lands unsold. Margaret Giffin died April 1st 1872, leaving a son and two daughters, Susan, the wife of Dr. Rankin, and Emily, the wife of Rev. E. P. Swift.
    By her last will Mrs. Giffin directed her executors to expend what was necessary in repairing a cemetery lot, in erecting a monument, in repairs, &c., and then made certain bequests to persons named amounting to $55,000. The residue she divided share and share alike between her two daughters and their heirs, and then made the following provision :
    “Ninth. All that remains of my estate after paying the aforementioned bequests, with the debts and charges, I give and bequeath to my daughters, Emily Giffin and Louisa Rankin (or their respective heirs), to be equally divided between them, share and share alike ; and in order to enable my executors, hereinafter named, to carry out the requirements of my hereinbefore recited will, I do hereby authorize and empower them, or the survivors or survivor of them, as soon after my decease as it can be done to advantage, to sell at public or private sale, as they may deem best for the interest of my estate, all my goods and estate, real, personal or mixed, wherever found, not heretofore disposed of, including the coal under the farm I now occupy (except the three acres reserved); also the lots on Mount Washington, and to pay the bequests herein-before made (without interest), as they have money on hand to do so, in the order in which they a,re herein given.”
    In a codicil she further provided:—
    “ I authorize and direct my executors to pay my daughter, Mrs. Louisa Rankin, out of any money belonging to my estate that shall come into their hands, the sum of $5000, in such amounts as she shall need from time to time, and to charge the same to her on account of her share of the final distribution, and anything in my said will that conflicts with this codicil, in so far as it conflicts, is hereby suspended.”
    Emily died August 13th 1873, leaving an infant, who died shortly thereafter, and her husband, Mr. Swift. At the date of Mrs. Swift’s death there was in the hands of the executors of Mrs. Griffin cash or securities largely in excess of Avhat was necessary to pay debts and legacies, and there remained also a large amount of real estate belonging to the residuary estate. In June 1877 her husband, Mr. Swift, on the ground that the will of Mrs. Griffin had worked an equitable conversion of the real estate, and that he was entitled to one-half thereof absolutely, presented a petition to the Orphans’ Court, praying that a citation might issue to Mrs. Rankin and the executors of the will to show cause why an order should not be granted for the sale of the balance of the unsold real estate.
    Answers were filed thereto by Mrs. Rankin and the executors, and after a replication and argument, the court, Hawkins, P. J., dismissed the petition in an opinion, saying:—

      “ The key-note in the construction of every will is the ascertainment of the intention of the testator, and when ascertained that intention must prevail unless inconsistent with some law or with public policy.
    “ The present proceeding raises a question as to the intention of Margaret Griffin, now deceased, with respect to the power of sale which she conferred upon her executors — whether she intended no more than the partial conversion which has already been made, or a peremptory sale of all her real estate. In the consideration of this question it must be borne in mind that conversion is not favored by the law where the result may be to change the course of inheritance, and will be presumed only so far as may be necessary to effectuate the intention of the testator.
    “ What then was the intention of this testatrix with respect to conversion ? She declares that in order to enable her executors to carry out the provisions of her will she authorizes and empowers them (1.) to make sale of all her estate and (2.) “ to pay the bequests hereinbefore made'(without interest), as they have money on hand to do so in the order in which they are herein given.” What bequests are meant ? Certainly not the residuary bequest that ex vi termini carries not only principal but interest. The bequests which were to be paid out of the proceeds of sale must then relate to the general legacies, and the power of sale is limited by the amount necessary to pay these general legacies. It was not necessary, so far as the residuary devisees were concerned, that there should be a sale of the real estate in order to carry out the provisions of the will. The devise was to them directly, and the legal title to the land need not have vested in the executors for their benefit; they could take directly from the testatrix; whereas the general legatees must derive title through the executors. Nor is this view inconsistent with the codicil. There is no express reference in the codicil to the power of sale contained in the original will, and no necessary implication of the enlargement of that power. It has been seen that a special fund was to be created by sale for the payment of the general bequests. That fund was to be realized by the terms of the will as it could be ‘ done to advantage.’ But there was in addition to this fund a large amount of cash on hand which was not strictly applicable to the payment of these bequests, but out of which the legacy to Mrs. Rankin might be satisfied, leaving a balance for ‘final distribution.’ The time of payment of this legacy was to be regulated by the ‘ needs’ of Mrs. Rankin, and might be demanded at a time when not only the sale of the real estate could not be made to advantage, but when there might result a serious loss. It is not to be presumed that testatrix intended to subject so large an estate to such a risk for so small a legacy, but rather that she intended Mrs. Rankin to be paid out of the cash on hand. There could, under the circumstances, have been no necessity for sale of the land,- and therefore no sale was contemplated.
    “ In any event, conversion can not be presumed to have been intended further than may be necessary to pay those bequests, which are payable ‘without interest,’ and to equalize the shares of the residuary legatees in the ‘ final distribution,’ which must terminate the duties of the executors. There is nowhere to be found, in terms, in the will, a positive and explicit direction to sell. The expression ‘authorize and empower,’ is in itself discretionary; it was used with reference to a purpose, and that purpose has been accomplished. The executors were authorized and empowered to sell ‘ all’ the ‘ goods and estate’ of testatrix, if necessary to carry out the provisions of her will, and they have sold all that was necessary for that purpose. The authority and power conferred upon them has therefore been exhausted.
    “But there are two other, and, with reference to this proceeding, more important considerations, bearing upon the question now before the court: 1. There can be no doubt that the power of sale which the testatrix vested in her executors is discretionary as to time. The sale was to be made ‘as it can be done to advantage.’ This court will not interfere with the exercise of a discretionary power unless bad faith is shown to exist on the part of the executors, or, loss may result from a failure to exercise such discretion. Neither of these conditions appear in this proceeding. 2. Whether it would be advantageous to make sale of the unsold portion of decedent’s real estate, in the present depressed monetary condition of the country, is a question about which there ought to be little contention. So long as there is no absolute necessity for selling, the executors would not be justified in making, nor this court in ordering, a sale, There could be no ‘ advantage ’ in such action.
    “ For these reasons the rule granted in this matter must be discharged and petition dismissed at cost of petitioner.”
    From this decree the petitioner took this appeal.

      John O. McCombs and Hampton JDalzell, for appellant.
    It was clearly the intention of the testatrix that her executors should sell all her estate undisposed of for the purposes named in the will, and that thereby there resulted an equitable conversion with legal title in the executors. The legal title being in the executors, the line of descent is broken, and if they refuse to sell it is a proper case for an order of court: McFarland’s Appeal, 1 Wright 300.
    Conversion being, apart from any statute, a question of intention to be determined from the will of the testatrix, there is to be found in this will a plain and direct intent to convert the whole property therein referred to into personalty for the joint purposes of payment of legacies and distribution: Sheetz’s Appeal, 1 Norris 213; Brisben’s Appeal, 20 P. F. Smith 405. And under the provisions of the Act of February 24th 1834, a naked power of sale in the executors works a conversion of the realty, breaks the descent, and vests the estate in the executors, leaving to the'legatees but an interest in the proceeds: Dundas’s Appeal, 14 P. F. Smith 325; Chew v. Nicklin, 9 Wright 84; Evans v. Chew, 21 P. F. Smith 47.

      JR. S. Woods and M. W. Acheson, for appellees.
    Conversion is a question of intention, and to effect it by will proof of the intention must be clear, and the direction to‘convert therein must be positive and explicit, not inferred from power to sell merely: Chew v. Nicklin, 9 Wright 84; Bleight v. Bank, 10 Barr 132; Edwards’s Appeal, 11 Wright 153. When a testator orders land to be sold and certain legacies to be paid. out of the proceeds, the surplus-money, after the payment of the legacies, does not go to the executor or to the next of kin as an undisposed of residue of personal estate, but results to the heir at law: Wilson v. Wilson, 9 S. & R. 424. If land be sold for a specific purpose, the surplus-money shall, as between the heirs and next of kin, be considered as land, so as to vest in the persons who would have been entitled to it had it remained unconverted: Sayers’s Appeal, 79 Penna. 431; Pennell’s Appeal, 8 Harris 515. The power of the executors was to sell for the payment of legacies and for no other purpose : Page’s Estate, 25 P. F. Smith 95.
    November 11th 1878,
   The iudgment of the Supreme Court was entered,

Per Curiam.

The power of sale in this case was clearly not an absolute direction to sell, and thereby to convert the realty into money, but was an enabling authority to carry out the requirements of the will as to payment of debts and legacies. It had relation to personal as well as real estate, and defined neither as to its extent, leaving the matter necessarily to the judgment of the executors as to when and what to sell. When the purpose of the will became accomplished by payment of debts and legacies, it is clear that the testator did not command a sale of the realty beyond this finished purpose. We cannot say that the Orphans’ Court erred in dismissing the petition when conversion had ceased to be necessary.

Decree affirmed at the costs of the appellant and the appeal dismissed.


text:
    Seibert versus Bakewell.
    Under the provisions of the Limited Partnership Act of 1836, where the general partner misappropriates the contribution of a special partner, the latter is not liable as a general partner for the debts of the partnership where he is not privy to the misappropriation.
    November 4th 1878.
    Before Agnew, C. J., Mercur, Gordon and Trunkey, JJ. Sharswood, Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas No. 1 of Allegheny county: Of October and November Term 1878, No. 255. ■
    Assumpsit by Frank Seibert against Benjamin Bakewell, Jr., John Lippincott, Benjamin P. Bakewell and Thomas Bakewell, late partners as Lippincott & Bakewell.
    Benjamin Bakewell, Jr., the defendant, was a member of the firm of Lippincott & Bakewell, a limited partnership, organized July 1st 1869, under the Act of 1836, and composed of John Lippincott and Thomas Bakewell, general partners, and Benjamin P. Bakewell and Benjamin Bakewell, Jr., special partners.
    The firm of Lippincott & Bakewell became indebted to Seibert, the plaintiff, in the sum of $3816.77 for goods sold to the workmen of the firm on orders given them by the firm. The plaintiff brought his suit to September Term 1876, against all the members of the firm; but Benjamin P. Bakewell having died, Thomas Bakewell having received his discharge in bankruptcy, and John Lippincott not having been served, the trial proceeded as against Benjamin Bakewell, Jr., the only remaining defendant.
    It appeared on the trial of the case, that a limited partnership, under the firm name of Lippincott & Bakewell, composed of the same parties, viz., John Lippincott and Thomas Bakewell, general partners, and Benjamin P. Bakewell and Benjamin Bakewell, Jr., special partners, had been organized in October 1864, to terminate June 30th 1869.
    On June 30th 1869, when the old partnership terminated, the interest of the special partners was estimated at $20,000 each, and they were each given a firm cheek for that amount on the Allegheny Savings Bank, where the firm had only $4000 to its credit.
    It also appeared that Thomas Bakewell, one of the general partners, had arranged with Holmes & Sons to cash these checks, and the special partners were directed by him to go to Holmes & Sons who would cash them. They did so, and left the money with Holmes & Sons, and on July 1st 1869, when the terms of the new partnership had been agreed upon, and it having been agreed that the special partners should each make a cash contribution of $20,000, the special partners drew their checks to the order of the new firm on Holmes & Sons for that amount, and gave the checks to Thomas Bakewell, who took them to Holmes & Sons, but neither received the money on them nor had them credited to the new firm, but allowed Holmes & Sons to credit the checks to the old firm against the checks of the old firm on the Allegheny Savings Bank which Holmes & Sons held.
    Under this state of facts the plaintiff submitted the two following points, both of which the court, Stowe, P. J., refused:—
    ' 1. That if the jury believe from the evidence that the general partner arranged with N. Holmes & Sons to cash the two checks drawn on the Allegheny Savings Bank, and directed the special partners to go to N. Holmes & Sons with these checks, and that the special partners did take these checks to N. Holmes & Sons and got them cashed, and then allowed the money to remain there, and afterwards gave two checks on this money for the amount of their contributions, and that the general partners handed these checks to N. Holmes & Sons in payment of the amount advanced on the checks on the Allegheny Savings Bank; then there was no hona fide payment into the stock of the partnership by the special partners, but a merely formal one, pursuant to a contrivance to evade the Limited Partnership Act; and the affidavit of the general partner appended to the articles of association contains a false statement, and the defendant becomes liable as a general partner. And impassing upon this question, the jury need not find that the defendant participated in the contrivance, or knew of it.
    2. It is the duty of the special partner, if he claims the immunity of the Limited Partnership Act, to see that his contribution actually goes into the stock of the firm; and if the contribution is misappropriated by the general partner, instead of going into the stock of the company, the special partner becomes liable as a general partner, without the qualification that a bona fide payment to the general partner, for the use of the firm, as a part of the capital stock, is a payment to the firm.
    The court affirmed the third point of defendant, which was as follows:—
    The defendant requests the court to charge that if the jui’y find that the defendant, on July 1st 1869, became, and was, a special partner of the firm of Lippincott & Bakewell, having in good faith paid in cash his contribution of $20,000, then, wholly independently of the other grounds of defence, the plaintiff is not entitled to recover; and in passing upon the question of the good faith of defendant in paying in the money, all that the law requires is that the special contribution be paid over in good faith to the general partner; that, in the present case, the conduct of the general partner in drawing checks against the Allegheny Savings Bank for the sums of money in excess of the moneys to the credit of the firm, in arranging with N. Holmes & Sons to cash said check, and in failing to cause the general books of the new firm to show entries of the payment of the special contributions, cannot affect the defendant, if the jury believe that he, in good faith, and in the manner testified to by him, paid in his contribution.
    In their general charge the court also, inter alia, said:—
    “ The defendant was special partner in a firm composed of two general partners and two special partners. He paid in $20,000 to the partnership by a check on N. Holmes & Co., bankers, which was equivalent to paying it in bills. It may be there was some arrangement or contrivance which would not have stood the test of a legal examination, so far as the general partners were concerned, between Holmes & Co. and the Allegheny Savings Bank, by which . the former cashed a check on the latter bank, when there was only $4000 on deposit to the credit of the firm; yet, although that may be the case, before this defendant can be affected by it, you must be fairly satisfied, and the burden of proof is upon the plaintiff, to show, that Mr. Bakewell was a party to that transaction; that he got this money or the control of it, knowing what the other parties knew, and that he either actively or passively acquiesced in the arrangement, knowing how it was made and the purpose of it. The moment a special partner endeavors to interfere with the business of a firm he loses the protection of the law making him a special partner. If he takes any part or lot in the management' of the firm affairs, he makes himself liable as a general partner. * * * The principle of law is clear and specific, as we understand it, and it is for you to exercise your own reasonable judgment, bearing in mind that the plaintiff must make out fairly and reasonably, by the weight of the evidence, the allegation that the defendant was a party to an illegal contrivance, or a contrivance for the purpose of making it appear he was putting money into the firm when he was really not doing it.”
    Verdict for defendant, and after judgment plaintiff took this writ, assigning for error the answers to the foregoing points and the portions of the charge noted.

      James S. Young, for plaintiff in error.
    The requirements of the Act of 1836 must be strictly observed: Andrews v. Schott, 10 Barr 47 ; Hogg v. Orgill, 10 Casey 344 ; Richardson v. Hogg, 2 Wright 155; Smith v. Argall, 6 Hill 481; Argall v. Smith, 3 Denio 436; Bowen v. Argall, 24 Wend. 504; Madison County Bank v. Gould, 5 Hill 311; Van Ingen v. Whitman, 17 Sickles 513. It is not a compliance with the statute to make the contribution in credit, or in any other thing except cash, however convertible into money: Van Ingen v. Whitman, 62 N. Y. 513; Hogg v. Orgill, 10 Casey 344; Haviland v. Chace, 39 Barb. 288.

      Greorge Shiras, Jr., for defendant in error.
    November 11th 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

It seems to be clear to us that there was an actual bona fide payment of the $20,000, by each special partner into the hands of the general partners. The special partners were actually paid and each had his own $20,000 in his hands from their former partnership, and made a special deposit of it with Holmes & Co. It is clear that Holmes & Co. had no claim against them and could not retain the money, because they had lent it to the general partners. The general partners were their individual debtors and had parted with the money by making a bona fide payment, if, as the jury have found, the special partners were not privy to the arrangement for the loan and return of the money. They gave their checks, or rather orders, on the special deposit alone, and it was accordingly paid over.

Judgment affirmed.


author: Per, Curiam.

text:
    Appeals of William Bedell, H. B. Sinclair and of Mrs. M. J. Bedell.
    1. The findings of fact by an auditor will not be set aside unless for plain error or for reasons which would induce a court to set aside a verdict.
    2. A deed from a husband to his wife is not void if good in equity, and where a consideration moving from the wife is clearly established the deed will prevail.
    3. In a contest with the creditors of the husband, where the equitable title of the wife is sustained and it appears that her conduct was such as to induce the litigation, the costs of the controversy must be paid out of the fund awarded to her.
    November 4th 1878.
    Before Agnew, C. J., Mercur, Gordon, and Trunket, JJ. Sharswood, Paxson and Woodward, JJ., absent.
    Appeals from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, Nos. 216 and 235. And of October and November-Term 1878, No. 9.
    Appeals of William Bedell, H. B. Sinclair and Mrs. M. J. Bedell, respectively, from the decree of the court in the matter of the sheriff’s sale of the real estate of Joel Bedell, and upon the exceptions filed to the sheriff’s special return of the sale.
    On the 18th of July 1874, Andrew Bedell, Sr., father of Joel Bedell, died, and the property described in the special return in this case descended to said Joel Bedell and his eight sisters and brothers, subject to the dower of their mother. On September 25th 1874, judgment was had against Joel Bedell at November term 1874, in favor of Wm. and Robert Caughey, for $600, and on November 19th 1874, by deed recorded November 30th 1874, he conveyed his interest in said property to his wife, Margaret J. Bedell, the deed expressing a consideration “ of one dollar, and in repayment and return of moneys loaned out of her separate estate.” Afterwards, on December 7th 1874, judgments were had against him at December Term 1874, in favor of Kramer & Yogelson for $262.62, and C. Bulger & Co., for $199.90. And on December 16th 1874, in favor of Wm. Whigham for $525, and afterwards other judgments were obtained by other parties.
    Executions were issued on the Caughey and Whigham judgments, to w;hich the sheriff made a special return that he had sold the property for $4500, to William Bedell and received from said purchaser, $2794.50, on account, which he had applied to certain judgments appearing on the list of liens against Joel Bedell, and had taken the purchaser’s receipt for the balance of the purchase-money, he being first lien-creditor for that amount, as assignee of the four judgments specified. To this return, Mrs. Bedell filed exceptions, which, while admitting that the property sold was liable for the debt of Joel Bedell on the Caughey judgment, denied that it was liable to execution and sale on any judgment procured against said Joel Bedell, after the 19th day of November 1874, the date of the deed aforesaid to Mrs. M. J. Bedell, and claimed the balance of the money made as her property. An auditor was appointed to pass upon the exceptions and distribute the money made, according to law. The facts relied upon to sustain the wife’s equitable title, were as follows:—
    In 1860 or 1861, William Huffman, father of Mrs. Margaret J. Bedell, the exceptant, wife of Joel Bedell, defendant in this execution, died. He left surviving him, a widow, Sarah Ann, and six children, viz.: A. J., James C., Margaret J., John R., Wm. J. and Louis B., to whom descended from him two farms known respectively, as “The Homestead” and “The McElhenny farm.” On June 24th 1861, A. J. conveyed his interest in said lands to his mother, Sarah Ann, and afterwards, namely, on January 10th 1864, James C. conveyed his interest to her. On October 9th 1863, John R. conveyed his interest to Joel Bedell, the defendant, to whom also on January 27th 1864, Wm. J. conveyed his interest. The said Sarah Ann having thus come into possession of the undivided two-sixths was, with her son, L. B., seised of the undivided one-half, and the said Joel Bedell having, by conveyance as aforesaid, become possessed of the undivided two-sixths, was, with his wife, Mrs. M. J. Bedell, seised of the undivided one-half. After the said farms had been appraised as of equal value by Samuel Denison, Benjamin Gilmore and Sidney Houston, appraisers, amicably agreed upon by the parties in interest for that purpose, on June 3d 1864, said appraisement was accepted and ratified by the parties and partition made by mutually executing deeds of release or quit claim; to the said Sarah Ann and L. B. Huffman for the “ Huffman homestead;” and to the said Joel Bedell and Margaret J. Bedell for “ The McElhenny farm.” On June 30th 1864, Joel Bedell and Margaret J. Bedell joined in a deed conveying the same to his father, Andrew Bedell, Sr., Joel Bedell at the same time giving in addition a bond and mortgage for $3000. In consideration and exchange for which Andrew Bedell, Sr., on the same day conveyed to said Joel Bedell a tract of coal land, containing 140 acres and 155 perches. And Joel Bedell having previously negotiated the sale of the coal underlying the same, on the same day conveyed said coal to Wm. & N. O’Neil, for a consideration of $125 per acre, the whole aggregating $17,621; and afterwards, by articles of agreement, dated September 20th 1864, sold the said tract of land to Wm. Bradshaw, for $8500 cash, and he having in the interim conveyed his interest to J. P. Wylie, said agreement was executed by the delivery of a deed dated March 13th 1865, to said J. P. Wylie. On the same day on which he had articled with said Wm. Bradshaw, and eighty-two days after the said conveyance to Andrew Bedell, Sr., said Joel Bedell gave to his said wife, Margaret J., a judgment note for $4000, in payment for her interest.
    This note continued in the possession of the wife until the debt was repaid by the deed of November 19th 1874, and was seen by Andrew Bedell, Jr., a disinterested witness, in 1872, nearly two years before the insolvency of said Joel Bedell. There was no credit on it, and it amounted with accrued interest to the sum of $6439.32. The deed conveyed to her the undivided one-ninth of the coal and land described (the description being the same as that contained in the execution in this case) as containing about 182 acres of land and 227 acres of coal. The highest estimate of the value of the property by the creditor’s witnesses per acre, gave a total of $68,150; the one-ninth of which, viz.: $7572.22, less the Caughey judgment, $600, without interest or costs, equals $6972.22, or $532.90 more than the note and interest. The lowest estimate was $52,250, the one-ninth of which, viz.: $5804.45, less the Caughey judgment, viz.: $600, equals $5204.45, or $1234.87 less than the note and interest. The mean average of the different estimates of the creditor’s five witnesses, aggregates a total of $61,105, the one-ninth of which, or $6789.45, less the Caughey judgment, leaves the value of the interest conveyed, at $6189.45, or $249.87 less than the note and interest. The estimates of value were based not on cash sales but on the ordinary time sales without interest. The auditor sustained the exceptions, but charged the costs upon the fund in distribution. The creditors excepted to the report as sustaining the exceptions. Mrs. M. J. Bedell excepted to the report as erroneous in virtually imposing the costs on her while sustaining her exceptions. The auditor overruled the exceptions and the court confirmed the auditor’s report. Erom the report and confirmation as sustaining the exceptions the creditors appealed ; Mrs. M. J. Bedell also appealed both in respect that the report as confirmed imposes the costs upon her, and that the order of the court confirming the auditor’s report is erroneous in that it omitted to set the sale aside and order the real estate to be re-sold unless the purchase-money was paid within ten days.

      R. £ S. Woods and JD. T. Watson, for William Bedell and H. B. Sinclair.

      John jR. Large and Joseph Forsythe, for Mrs. Bedell.
    November 11th 1878,
   The judgment of the Supreme Court was entered

Per, Curiam.

The facts in this case found by the auditor belonged peculiarly to the function of the auditor, and being found by the court we cannot correct the findings unless upon showing plain error. When the report is upon facts directly found upon the evidence, we have frequently said we ought not to set it aside except for reasons which would induce a court to set aside a verdict. We discover no such plain error here.

A deed from husband to wife is not void, if good in equity, and here the consideration moving from the wife being clearly established, the deed will prevail. The conduct of the wife was such here as to induce litigation, and this being the ease the fund must bear the expense of payment of the costs. If the money be not paid into court within the time allowed by the Act of Assembly, the court below will make the proper order as to setting aside the sale.

Decree affirmed, with costs of the appeal to be paid by the appellants in their respective cases, and the appeals are severally dismissed in the three cases argued at the • same time. '


author: Mr. Justice Trunkey

text:
    Lazear versus Porter, Assignee.
    1. A sale of the lands of a bankrupt by the assignee does not divest .the dower of the barnkrupt’s wife : In re Angier, 4 N. B. R. 619, followed.
    2. The dictum in Worcester v. Clark, 2 Grant 84, that a sale in pursuance of a decree in bankruptcy would bar dower were it not for the third proviso of the 2d section of the Act of Congress of August 19th 1841, dissented from.
    3. The Bankrupt Act of the United States and the Insolvent Debtor Act of Pennsylvania discussed and compared.
    November 6th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, and Trunkey, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1878, No. 206.
    Amicable action of assumpsit -by W. D. Porter, assignee in bankruptcy of S. B. W. Gill, against Charlotte O. Lazear, wherein a case was stated for the opinion of the court, as follows:—
    On the 28th of November 1877, S. B. W. Gill, Esq., was duly adjudged a bankrupt by the District Court of the United States, for the Western District of Pennsylvania, upon creditors’ petition; and W. D. Porter, the plaintiff, was afterward duly appointed assignee of the estate of said bankrupt, which estate included the lots of ground hereinafter mentioned, of which the said bankrupt was seised in fee at the time of the filing of said petition.
    On the 27th day of May 1878, the said assignee, in pursuance of an order of said District Court, and for the purpose of raising money to pay the debts of said bankrupt, sold at public auction to the defendant, Mrs. Charlotte C. Lazear, lots Nos. 49 and 50 in plan of the partition of George Denniston’s estate, situate in the Twentieth ward of the city of Pittsburgh, for the sum of $465 cash, subject to the lien of a certain mortgage for $2550, but it was directed by said order of sale and was so stated in the advertisement thereof, that all other liens and encumbrances should be discharged by said sale.
    The said bankrupt at the time of the commencement of said proceedings in bankruptcy had a wife who is still living and who, it is alleged, claims to be entitled to a dower interest in said real estate, notwithstanding said sale, insisting that the same was not thereby divested.
    The said sale having been confirmed absolutely by the said District Court, the said assignee thereupon executed and tendered a deed for said premises to the defendant and demanded payment of said purchase-money, which she refused, in consequence of the aforesaid claim of dower, alleging that the same being an encumbrance thereon, she is not bound under the terms of sale, to accept and pay for the property. Wherefore this suit is brought to recover said purchase-money.
    If the court should be of opinion that the right of dower of the bankrupt’s wife aforesaid, wras divested by the bankruptcy proceedings and sale aforesaid, then judgment to be entered in favor of the plaintiff and against the defendant above named, for the above sum of $465, with interest from the date of said sale and costs ; otherwise, judgment to be entered for the defendant for costs.
    The court entered judgment for the plaintiff, which entry was assigned for error by the defendant.

      Thomas O. Lazear, for plaintiff in error.
    An assignment of his lands to trustees, by one in insolvent circumstances, for the payment of debts, will not bar the wife’s right of dower: Keller v. Michael, 2 Yeates 300; Eberle v. Fisher, 1 Harris 526 ; Helfrich v. Obermyer, 3 Id. 113. The only circumstance distinguishing these cases in principle from this one, is the fact that in the latter the sale was made by order of the court. But in a case precisely like the present, which came up for adjudication in the United States District Court for the Eastern District of Pennsylvania, this fact was held to make no difference: In re Angier, 4 N. B. R. 619. The same question also arose in this court and was deoided in like manner, under the Bankrupt Act of 1841, in Worcester v. Clark, 2 Grant 84. The sale there was likewise by order of the court and public, but Woodward, J., in a well-considered opinion, held, that the dower of a bankrupt’s wife was not divested.

      W. JD. Porter, for defendant in error.
    Land becomes a chattel for the payment of debts when the law makes it an asset for that purpose, and when the law so makes it an asset for the payment of debts, all derivative interests are extinguished. A judgment against the husband alone or a mortgage in which the wife does not join, binds the land of the husband, and a sale thereon bars the wife’s right of dower: Scott v. Croasdale, 1 Yeates 75; 2 Dallas 127; Directors of the Poor v. Royer, 7 Wright 146.
    When a man dies the Orphans’ Court takes charge of his estate, and the law of this state makes his land an asset for the payment of his debts and a sale for that purpose bars dower: Mitchell v. Mitchell, 8 Barr 126; Helfrick v. Obermyer, 3 Harris 113. The case most analogous to this is that of bankruptcy.
    The general principle that a judicial sale in this state will bar the wife’s right of dower will not be questioned. Was this a judicial sale, within the meaning of the rule ? It was a sale of property of which the District Court of the United States had, through its officer, taken possession, not by virtue of any conveyance made by the debtor, as is the case of an assignment by an insolvent to trustees for the payment of debts, but by virtue of a decree of said court adjudging the owner of said property an involuntary bankrupt. The sale was made under an order of said court establishing its terms and conditions, and requiring a report to be made to the court. It was public, and upon report to the court was confirmed. What element of a judicial sale is lacking ?
    In the case of Worcester v. Clark, 2 Grant 84, Woodward, J., who delivered the opinion of the court, said: “ On the general principles long recognised in Pennsylvania, that lands are assets for payment of debts, and that dower is barred by sheriff’s sale, in virtue of either a judgment or mortgage, executed by the husband alone, I should have no difficulty in holding, that a sale in pursuance of a decree in bankruptcy would also bar dower were it not for the third proviso to the 2d section of the Act of Congress, of 19th August 1841, establishing a uniform system of bankruptcy. That proviso is in these words: ‘ That nothing in this act contained, shall be construed to annul, destroy or impair any lawful rights of married women or minors, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the states, respectively, and which are not inconsistent with the 2d and 5th sections of this adt.’ The question on this record is, whether a married woman’s interest in her husband’s lands is saved by this proviso.” The court held that it was. No such proviso occurs in the Bankrupt Act of 1867, or its supplement of 1874, and, therefore, such a sale under these acts must bar dower.
    The case of In re Angier, 4 N. B. R. 619, cited by plaintiff in error, is not authority in this court. It was a motion to set aside a sale by the assignee, a matter entirely within the discretion of the court, and not subject to appeal to the Circuit Court of the United States. And-an examination of the authorities cited and relied upon in that case will show that they sustain no such principle as that sought to be established.
    January 6th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The question presented is, does a sale of the lands of a bankrupt by the assignee divest dower of the bankrupt’s wife ?

By operation of law the title of the bankrupt’s real estate is vested in the assignee from the date of the commencement of the proceedings in bankruptcy: Rev. Stat. U. S., § 5044. The assignee shall sell the unencumbered real estate on such terms as he thinks most for the interest of the creditors: Rev. Stat. U. S., § 5062. He shall have authority, under the direction of the court, to redeem or discharge any mortgage or lien upon the real estate, or to sell the same subject to such mortgage or lien: Rev. Stat. U. S., § 5066. On application of any party in interest the court shall have complete supervisory power over such sales, including the power to set aside the same and order a resale : Act of United States, June 22d 1874, sec. 4.

In Pennsylvania an insolvent debtor, under arrest and imprisonment, to procure his discharge, shall execute an assignment of all his estate to trustees nominated by his creditors and appointed by the court: Act 1836, Purd. Dig. 779, pi. 22. The trustees shall be deemed vested with all the estate of the insolvent, at the time of filing his petition, subject to liens: Act 1836, Purd. Dig. 782, pi. 42. They shall convert the estate into cash and make distribution among the creditors: Act 1836, Purd. Dig. 780, pi. 32. The property of the insolvent vests in the trustees by operation of law, not by virtue of the assignment: Ruby v. Glenn, 5 Watts 77.

The salient points, touching the question in hand, of the Bankrupt Law and Insolvent Debtor Act, have been noted, the- better to observe the similarity of the title which passes to the assignee in the one and trustee in the other, a title created by operation of law, in each, in trust for creditors. The entire estate of the bankrupt is transmitted, so of the insolvent. The assignee is subject to the power and direction of the court, and so is the trustee. In each the estate is to be converted into money for payment of debts, and the accounts are subject to examination of the respective courts. Nothing is said, in either statute, of the incipient estate of the bankrupt’s or insolvent’s wife. The revised Act of 1836 was a re-enactment of prior statutes of like tenor relative to insolvents. At an early day it was held that the quasi-judicial proceedings for disposition of insolvent’s estates did not defeat the right of dower: Keller v. Michael, 2 Yeates 300. At a later day the same doctrine was held in Eberle v. Fisher, 1 Harris 526, when the court said: “ In 1822 our insolvent laws required the assignment to be made when the unfortunate debtor was in custody. He must so make it to obtain his discharge. His creditors designated and the court appointed the trustee. The interest which his assignee had was precisely his interest and no more. He sells his effects, real, personal and mixed. He collects his debts and he divides the fund-according to law among the creditors. If a surplus, he returns it to the debtor. The wife is not named in our insolvent laws, and if the insolvent has real estate, which is sold by the trustee, and she survives her husband, she is entitled to dower in that estate.” By parity of reasoning the purchaser from an assignee in bankruptcy takes subject to the bankrupt’s wife’s right of dower. So held the learned and able judge of the United States District Court for the Eastern District of Pennsylvania: In re Angier, 4 N. B. R. 619.

Of course, as said by defendant in error, the general principle that a judicial sale in this s_tate will bar the wife’s right of dower' will not be questioned ” Nor will the principles held in Directors of the Poor v. Royer, 7 Wright 146. Nor will we say that the very foundation of those principles is, that the debts are liens at and immediately before the seizure and sale. We are not convinced that an assignee’s sale is within the rule. We see no substantial distinction between it and a sale by a trustee under our statute. Hence, we wholly dissent from the dictum in Worcester v. Clark, 2 Grant 84, that “ On general principles long recognised in Pennsylvania, that lands are assets for payment of debts, and that dower is barred by a sheriff’s sale, in virtue of either a judgment or mortgage executed by the husband alone, I should have no difficulty in holding, that a sale in pursuance of a decree in bankruptcy would also bar dower, were it not for the third proviso to the 2d section of the Act of Congress of 19th August 1841.” Dower is a legal, an equitable, and a moral right. It is favored in a high degree by law, and, next to life and liberty, held sacred: McKean, C. J., Kennedy, v. Nedrow, 1 Dall. 417. A widow’s right of dower commences with her marriage ; it is held so sacred a right, that no judgment, recognisance, mortgage or any other encumbrance whatever, made by the husband after the marriage, can, at common law, affect her right of dower; even the king’s debt cannot affect her: Shippen, P. J., Graff v. Smith, 1 Dall. 484. The only modification of these principles, that we have suffered, is in treating the rights of creditors as paramount, and permitting them, through a judicial sale, to bar dower; a policy often questioned' and which is not to be extended beyond established limits ; Woodward, J., Worcester v. Clark, supra. That policy, from any principle of analogy, should not be extended a whit farther. It has been carried too far and has too often divested estates of women, incident though they be to the marital relation, when no equitable principle so required. Nothing should be taken to prejudice a wife’s estate by mere inference. A statute ought not to be interpreted as authorizing a sale of the husband’s lands, freed from dower, unless such is its clear intendment. Were the meaning of the bankrupt law and the effect of a sale of the bankrupt’s land, as to dower, doubtful, the conclusion must be that the wife’s estate is not divested.

Judgment reversed, and judgment is now entered upon the case stated for defendant for costs.


text:
    Taylor versus Mitchell et al.

    C., by an agreement under his hand and seal, for a valuable consideration, covenanted that he would not by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with the rights of his heirs-at-law as to their free and equal share in all his real estate, but that the same should remain free and uncontrolled, to be divided equally amongst all his legal heirs. C. subsequently made a will, wherein he devised his real estate to certain heirs, but did not include T. therein. T. brought ejectment to recover his interest as one of the heirs of C., under the agreement. Held, reversing the court below, that he could recover.
    November 6th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon and Trunkey, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 235.
    Ejectment by Carson W. Taylor, by his guardian, William S. Taylor, against Robert Mitchell, John Carson, John R. McEadden and William H. Carson, for the individual fourth part of a lot of ground in the city of Allegheny.
    The lot in dispute was conveyed to Wm. Carson, in fee, by Stephen Caldwell and wife by their deed, dated September 26th 1841, and the said Wm. Carson being in possession of the same until his death in the year 1871, died, seised in fee simple of said lot, leaving issue as his heirs-at-law, two sons, to wit: Wm. H. Carson and John Carson ; one daughter, to wit: Nancy McEadden ; and one grandson, to wit: Carson W. Taylor, the plaintiff. The defendants claim title to the whole of the lot under the last will and testament of the said Wm. Carson, dated August 18th 1869, probated August 28th 1871, devising said lot, inter alia, to John Carson, Wm. H. Carson and John R. McEadden. The said John Carson and Nancy McEadden, being children of the said William Carson’s first wife, and the said William H. Carson being a son, and John W. Taylor being a grandson by his second wife. Robert Mitchell was the lessee of these devisees.
    The plaintiff claimed one-fourth interest in said property, by virtue of the following agreement,' which was duly recorded :—
    “ Whereas, John Carson and wife and John R. McEadden and Nancy, his wife, have this day executed to James Old, of McClure township, Allegheny county, a release of all the right, title, interest and claim of them, of, in and to a certain tract of land in the said reserved tract, opposite Pittsburgh, in the county of Allegheny, being part of out-lots Nos. 217 and 218, in said reserved tract, and containing two acres and 71 9-100 perches, the title of which was in them through their mother Nancy, late Nancy Bennett, without consideration whatsoever from me and for my benefit. Therefore, know all men by these presents, that I, William Carson, in consideration thereof, hereby covenant and agree to and with the said John Carson and Nancy McFadden, that I shall not, nor will I by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with'the rights of' the said'John Carson and Nancy McFadden,'as my heirs-at-law, as to their free and equal share in all my real estate,_ but the same shall remain free and uncontrolled, to be divided equally amongst all my legal heirs, including the said John and Nancy, at my decease.
    Witness my hand and seal this 5th day of August, A. d. 1862.
    [Signed] William Carson. [L. S.]
    "Witnesses, S. B, W. Gill, John Dyer.”
    The verdict was for the plaintiff, subject to the opinion of the court on the question of law reserved whether the plaintiff had title by reason of the foregoing agreement. If the court should be of opinion that he had, judgment was to be entered on the verdict, but if not, then for defendants non obstante veredicto.

    The court entered judgment for the defendants, which was the error assigned.

      H. >$. Woods, for plaintiff in error.
    For a valuable consideration paid, this paper is a declaration of trust by William Carson that he would die seised of the real estate he then owned, so that the same should remain free and uncontrolled, and be divided equally amongst all his legal heirs. It was a covenant to stand seised for the use of his children and grandchildren: Fisher v. Strickler, 10 Barr 348; Vanhorn’s Lessees. Harrison, 1 Dall. 137 : Statute of Uses and Trusts, 27 Hen. 8, ch. 10 ; Roberts’s Dig. 404-10.

      S. JT. Greyer, for defendants in error.
    The instrument was testamentary and. was revoked by the subsequent will: Turner v. Scott, 1 P. F. Smith 134 ; Scott v. Scott, 20 Id. 244.
    When a covenant is made by one man for the benefit of another, the action must be brought in the name of the party to whom it was made, and not by him for whose benefit it was made : Strohecker v. Grant, 16 S. & R. 237: 3 Parsons on Contracts, 5th ed., 361.

      January 6th 1879.
   Mr. Justice Trunkey

delivered the opinion of tne court,

William Carson s deed, dated 5th August 1862, is so far from being testamentary that it contains his covenant not to devise his real estate. The sole question is, whether that covenant shall prevail against his will. A valuable consideration is set forth, namely, a conveyance, for the benefit of said William, by John Carson and Nancy McFadden, of their title and interest in a tract of land which they inherited from their mother; and, for that, said William covenanted, “ that I shall not, nor will I by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with the rights of the said John Carson and Nancy McFadden, as my heirs-at law, as to their free and equal share in all my real estate, but the same shall remain free and uncontrolled, to be divided equally amongst all my legal heirs, including the said John and Nancy, at my decease.” The plain meaning is, that for a valuable consideration, the covenantor agreed to hold his real estate unencumbered, free, and uncontrolled, to be divided amongst his heirs. Had he contracted, for same consideration, to sell his land and give possession at his death, and make provision for conveyance, after his decease, to such persons as should be his heirs, the intent would not be more obvious. For purpose of reaching the like end he covenanted to stand seised to the use of his heirs.

John Carson and Nancy McFadden were children of William, who also had two other children by his second wife. That natural love and affection of the parties to this deed, for the other children, likewise moved them to so stipulate, is manifest from the relationship; and were such motive necessary, it is not essential that it be expressed: Fisher v. Strickler, 10 Barr 348. Little need be predicated of this farther than showing one object of the covenantees was prevention of the very thing attempted upon the plaintiff.

William Carson died seised of the land, and the devisees stand in his shoes. They are not innocent third persons. Had he died intestate his heirs could not violate the contract; no matter if the deed is not, in strictness, within the statute of Uses and Trusts, 27 Hen. 8, and the conveyances which sprung up in consequence thereof. The consideration was not money, necessary to a bargain and sale, nor blood or marriage, necessary to a covenant to stand seised to uses; but it was a valuable one, and between the parties and privies, sufficient to support a contract to hold the land for use of his heirs, their possession to commence at his death. Each party, equitably interested, can recover his portion, in his own name, and is not bound to resort to a personal action for damages.

Judgment reversed, and judgment is now entered for the plaintiff upon the verdict.


author: Mr. Justice Sharswood

text:
    McClurg et al. versus Schwartz et al.

    1. Where a husband gives a mortgage upon his property and suffers judgment on the same, with intent to defraud his wife of her dower, and the mortgagees have constructive notice of her rights, she has a strong equity to be allowed to intervene, and to have a rule to show cause why the judgment should not be opened and she be let into a defence to the extent of her dower.
    2. Her appeal, however, should be made to the equitable power of the court to allow her to defend pro interesse suo against the mortgage, and where therefore the wife petitioned the court below to set aside the judgment, and upon its refusal took a writ of error and assigned for error certain irregularities in the entry of the judgment on the scire facias, Held, that she had no right to assign these errors and her writ must be quashed.
    3. It seems, that if the property under proceedings on the mortgage should pass into the hands of a bona fide purchaser, without notice of the fraud, the wife could not enforce her title against such purchaser. The sheriff’s sale at law divested her dower.
    November 6th 1878.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, and Trunkey, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 204.
    This was a writ of error sued out in the name of W. A. McOlurg and Margaret McOlurg, who intervenes pro interesse suo, plaintiffs in error, against James E. Schwartz, surviving executor of Jacob L. Schwartz, deceased, now for use of J. E. Schwartz and George S. Griscom, for use of festate of Jacob L. Schwartz, deceased.
    The proceedings in the court below commenced with the petition of Margaret McOlurg, widow of Alexander McOlurg, dated June 19th 1878, which set forth in substance: that prior to January 2d 1840, Alexander McOlurg, the petitioner’s late husband, was seised of the legal and equitable title to certain property on the north side of Fifth avenue, in the city of Pittsburgh ; that on the 2d of January 1840, he conveyed said property to William T. McOlurg, in trust, to sell the same and apply the proceeds of sale to the payment of certain debts; that on the 22d of January 1853, William T. McOlurg and wife conveyed said property to James McOlurg, upon a like trust; that on the 22d of December 1855, the sheriff of Allegheny county sold the interest of Alexander McOlurg in said property to John P. Penny, who on July 22d 1857, conveyed the same to Robert McKnight; that the said Robert McKnight and wife, on June 25th 1870, conveyed said property to William A. McOlurg, and that on the 21st of June 1870, the said James Mc-Clurg also conveyed said property to said William A. McOlurg, the said Alexander McOlurg signing said deed to testify his assent to the same, and for the express purpose of vesting a complete legal and equitable title in the said William A. McOlurg.
    “ That on the 23d day of June 1871, the said William A. MeClurg executed a mortgage on said property to James E. Schwartz and Henry P. Schwartz, executors of Jacob L. Schwartz, deceased, for the sum of $13,000, payable with interest, three years after the date of the said mortgage; that on the 21st day of November 1874, your petitioner preferred her bill of complaint in the Court of Common Pleas, No. 1, of said county, at No. 1217, Dec. T. 1874, praying, that her dower might be assigned to her, out of the freehold estates of her late husband, and on December 27th 1875, the said court made its decree, valuing and fixing your petitioner’s dower at the sum of $3000 per annum, payable in quarterly instalments, to commence July 1st 1875, and charging five-sixths thereof, or the sum of $2500 per annum, on the said property.
    “ That on November 17th 1877, your petitioner filed a petition in the said equity suit, No. 1217, Dec. T. 1874, setting out that her dower was in arrear, and praying for the appointment of a suitable person to collect the rents of the property on Fifth avenue, subject to her dower, and apply the same, after payment of taxes, repairs or other proper charges, to the discharge of the said arrears of dower;- that on January 19th 1878, the said court made its decree, appointing a sequestrator, pursuant to said petition, and directing a writ of sequestration to issue to him ; that said sequestrator entered bail in pursuance of an order of court in that behalf, and has been ever since and is now, as such officer of said court, acting under its decree of sequestration, in the possession of the said property, and in the perception of the rents and profits thereof.
    “ That on the 30th day of April 1878, suit was brought on the said mortgage, in the name of James E. Schwartz, surviving Jacob L. Schwartz, deceased, for use of James E. Schwartz and George L. Griscom, for use of the estate of Jacob L. Schwartz, deceased, v. Wm. A. McClurg, to No. 178, July T. 1878, of this court, in which a scire facias was issued to the first Monday of May 1878, and returned nihil; that on May 28th 1878, an alias scire facias was sued out to the first Monday of June 1878, and also returned nihil; that on June 12th 1878, judgment against defendant in default sec. reg. was entered for $14,783.85.
    “ That your petitioner resides in Philadelphia, and has been sick and confined to her room and generally to her bed since the beginning of April 1878, about two months, and is now so confined; that she had no knowledge of said suit on the said mortgage, until the date of this affidavit, to wit: June 19th 1878, when the facts hereinbefore alleged, with respect thereto, were made known to her; that in the liquidation of said mortgage, there has no credit been allowed for interest paid on the mortgage-debt in excess of the rate authorized by law, and the amount of said usurious interest is not less than $1100, and probably exceeds twice that amount.
    “ Your petitioner further says, that she is in doubt as to the manner in which said judgment may affect her rights; that an execution has been issued on said judgment, No. 178, July T. 1878 (and a levy made), returnable to the first Monday of July next, and your petitioner is apprehensive that a sale of the said property under said writ may injuriously affect her claim on the same for her dower, which is now greatly in arrear.
    “ Your petitioner further says, that the acting executor of Alex ■ ander McClurg, Mr. S. Trevor McClurg, is now and has been for about a year or more, residing in the state of Maryland, and is not giving any attention to the business of said estate.
    “ Your petitioner therefore prays leave to intervene, and that the second writ of scire facias issued by the plaintiff in the suit on said mortgage, to No. 178, July T. 1878, may be quashed and the judgment entered thereon, set aside as being irregular; and that sucb other relief may be granted your petitioner as the court deem just and the nature of her proceeding requires.”
    In support of her application to intervene in these proceedings, petitioner filed an affidavit, which averred: that she and her late husband, Alexander McClurg, had been separated for about ten years prior to his death; that he was bitter and vindictive towards her, his children participating in said feelings; that some time prior to his death, about three years prior thereto, he conveyed nearly all his real estate, including that described in said mortgage, to his son, Wm. A. McClurg, without any consideration, and soon thereafter, procured mortgages to be made on the same, for about $100,000, the proceeds of -which went to his children, or some of them; that affiant believes she will be able to prove, that the object of said conveyances and mortgages was to defeat her claim of dower; that at the time of her said husband’s death, none of his real estate stood in his own name, but was in the name of Wm. A. McClurg and of S. Trevor McClurg, his sons and executors; that the said mortgagees when they took said mortgage, had constructive notice of the title of Alexander McClurg and of affiant’s right of dower.
    A rule was granted on the mortgage-creditors to show cause why the second scire facias should not be quashed and the judgment thereon set' aside as being irregular.
    The court, Ewing, P. J., subsequently refused the prayer of the petition, and discharged the rule, in an opinion holding that the petitioner was not specially interested in this proceeding, and that as she claimed, the title of William A. McClurg and of the mortgagees was subject to her right of dower, proceedings on the mortgage would not affect her. And, further, that the alias writ in this case was properly issued to a different return-day in the same term, and the sheriff’s return of nihil to each writ justified the entry of the judgment.
    Subsequently the court made the following .order: “It appearing to the court from the affidavit of Margaret McOlurg, widow of Alexander McOlurg, and also from proceedings at No. 1217, Dec. T. 1874, O. P. No. 1, that the said Margaret has an interest in the premises embraced in. said mortgage, on motion of James M.' Stoner, attorney for said Margaret, she is allowed to intervene pro inter esse suo, to show, if she can, why said judgment should not be set aside, in order to allow her to take a writ of error in the case.”
    The petitioner took out this writ, as above stated, and assigned for error, the action of the court in discharging the rule to show cause.
    GreorgeP. Hamilton and James M. Stoner, for plaintiffs in error.
    —The judgment having been taken on the ninth day after the return of the alias wilt was premature and therefore void: Faunce v. Subers, 1 W. N. C. 248.
    No counsel nor paper-book for defendants in error.
    November 11th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

It may be conceded that on the facts set forth in Mrs. McClurg’s petition and affidavit that the deed from her husband to William T. McOlurg, followed as it was by the sheriff’s sale of the interest of her husband and the subsequent conveyance toWilliam A. McOlurg, the mortgagor and defendant, were all intended to defraud her of her dower in the premises; and that the mortgagees, when they took the mortgage, had constructive notice of the title of the husband and of her right, she would have had a strong equity to be allowed to intervene and to have a rule to show cause why the judgment should not be opened and she be let into a defence to the extent of her dower. Had she made out by depositions even probable grounds to support her allegations, no doubt the court would have opened the judgment: for as the case stands if the property under proceedings on this mortgage should pass into the hands of a bona fide purchaser without notice of the fraud she could not enforce her title against him. The sheriff’s sale at law divested her dower. But this she did not ask to do. She petitioned to be allowed to intervene not to open but to set aside the judgment, and it was for that purpose only that she was allowed to intervene. What she sets up on- this writ are simply irregularities, if they are such that the second scire facias was not made returnable to a proper return-day and the judgment by default was taken a day before it could properly be taken. The mortgagor and defendant, if he had appeared could have confessed judgment, and of course could have waived the irregularities in the proceedings. Mrs. McOlurg has no right to assign these errors. Her appeal ought to have been to the equitable power of the court to allow her to defend pro interesse suo against the mortgage. Then if she had succeeded the judgment and sale under it would have been subject to her right of ■dower. If this judgment is reversed it can procure her but a short delay. The mortgage and first scire facias still stand and another scire facias can be issued upon it. Why this writ of error has been resorted to it is not easy to understand; especially as the refusal of the court .below to open a judgment upon sufficient grounds laid is now the subject of review on appeal to this court. The final order of the court upon which this writ of error has issued is rather an anomalous one. The petitioner was allowed to intervene pro interesse suo, to show cause why said judgment should not be set aside in order to allow her to take a writ of error in this case. Yet this rule to show cause in the court below stands on the record open and undisposed of. On the whole we think it will be for the interest of the plaintiff to quash this writ of error, leaving her the opportunity which she still has to apply to have the judgment opened and to be let into a defence to the extent of her dower.

Writ of error quashed.


text:
    Holmes, Lafferty & Co. versus The German Security Bank.
    1. Where a hill of lading is attached to a draft as security for its payment and transferred for a valuable consideration, it is an appropriation of the property contained in the bill whether it is endorsed or not.
    2. A bank discounted a draft with a bill of lading attached as security for its payment and sent it to a correspondent for collection. The commission firm to whom the property was consigned refused to pay tbe draft and after-wards received and sold the property and applied the proceeds to an old debt due them by the consignor. Held, that having notice of the draft and bill of lading before sale they were informed of the appropriation of the proceeds of sale and could not apply them to an old debt of their own.
    November 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 165.
    Assumpsit by the German Security Bank of Louisville, Kentucky, against Holmes, Lafferty & Co.
    On the trial of the cause it was proven that for several years J. M. Harper, of Louisville, Kentucky, had been shipping car loads of live stock to Holmes, Lafferty & Co., of Pittsburgh, to be sold on commission, and making drafts on them as soon as shipped, based on the bills of lading which accompanied the drafts. These drafts were usually discounted by the German Security Bank, and were always promptly paid until the draft for a certain car-load of hogs, shipped on August 9th 1877, by Harper to Holmes, Lafferty & Co., came due. On the day of shipment Harper drew his draft on the latter firm for $1300, and the said draft was discounted by the German Security Bank on the faith of the bill of lading which was handed over to it. The draft, with the bill of lading attached, was sent to the German National Bank of Pittsburgh for collection, was presented to Holmes, Lafferty & Co., on the 11th of August, and payment refused. The hogs arrived on the 13th, were received by the. defendants below, and by them sold. At that time Harper was indebted to defendants on over-drafts on previous shipments to a larger amount than the proceeds of this last lot. The proceeds of the shipment, after deducting freight, shipment charges, &c., amounted to $1299, which is the amount the bank claimed in their suit. The defendants claimed to retain it on account of the indebtedness of Harper to them. The bank based its claim to recover upon the ground that the transfer of the bill of lading, on the faith of which they discounted Harper’s draft, gave them the right to the cargo or its proceeds; that the mere handing over of the bill of lading was a transfer or pledge of the hogs as security for the draft. The defendants below denied this, claimed that no title to the hogs or proceeds could pass without an actual delivery to the plaintiff of the property, and contended further that even if it could that the handing over of a bill of lading, itself not a negotiable instrument, and which had no assignment whatever endorsed upon it, could not work a transfer of the property. The plaintiff below submitted points embracing the grounds upon which he sought to recover, and the court affirmed them. It also refused to affirm the following two points, submitted by the defendants below, which embrace substantially the defence to the action:—
    1. That the contract of shipment or bill of lading for the hogs in question not having been endorsed or assigned to the plaintiff by any words of transfer, but merely delivered without endorsement, no property in the hogs thereby passed to the plaintiff and the plaintiff cannot recover.
    2. That as there is no evidence that plaintiff took possession of the hogs, no lien was acquired by it upon the hogs, by way of security for any money which may have been advanced to Harper, which would be valid against Harper’s creditors.
    There was also evidence on the trial that Holmes, Lafferty & Co. had agreed to accept Harper’s drafts whenever the bills of lading accompanied them. This was denied by the defendants, and the court in its charge held that the testimony was not material to the issue. The jury found for the bank, and Holmes, Lafferty & Co. assigned the rulings of the court as error.

      Thomas O. Lazear, for plaintiffs in error,
    contended that the action of the court in taking away the only disputed fact from the jury, and in holding that, as a matter of law, the defendants were liable, was erroneous; that neither the draft by itself, nor in connection with the contract or bill of lading which accompanied it, vested in the bank any title to the hogs or gave it any lien upon them or upon their proceeds for the money advanced thereon to the drawer; that the draft alone had not this effect had been repeatedly decided, and the attaching and handing over to the bank of the contract of carriage along with the draft passed no better title nor created any better lien than did the draft itself; for the bill of lading was nothing more than an agreement between the shipper and the railroad company for the transportation of the hogs. It was a non-hegotiable instrument, and mere manual delivery of it conveyed no interest whatever either in the hogs or their proceeds: Hopkins v. Beebe, 2 Casey 85; Farmers’ & Mechanics’ Ins. Co. v. Simmons, 6 Id. 302; Mrs. Greenfield’s Estate, 12 Harris 240; Lloyd v. McCaffrey, 10 Wright 410 ; First National Bank of Mt. Joy v. Gish, 22 P. F. Smith 13. Even if it was a bill of lading the fact of its being not endorsed or transferred by any words of assignment precluded it from conveying any title, as, under the law, unless a bill of lading is endorsed, it passes no property: 1 Pars. Cont., § 239 ; Stone v. Snift, 4 Pick. 389; Allen v. Williams, 12 Id. 297; Buffington v. Curtis, 15 Mass. 528; Bell v. Moss, 5 Whart. 205. And the hogs not having been taken into possession by the plaintiff, and in fact, there being nothing in the transaction to indicate that it was the intention of the parties that he should take possession of them, no title to or lien upon them could possibly be acquired as against Harper’s other creditors: Clow v. Woods, 5 S. & R. 275; Wells v. Becky, 1 P. & W. 57; Fry v. Miller, 9 Wright 443; Bowen v. Burke, 1 Harris 149; Welsh v. Bell, 8 Casey 13.

      Slagle Wiley, for defendants in error.
    — A bill of lading being symbolical of the property described in it, like the property it represents, may be transferred by delivery merely; and this is so without regard to the presence or absence of words of negotiability on its face. When the vendor of goods consigns them, taking a bill of lading from the carrier, and intending to reserve the right of control over them, at the same time draws upon the purchaser for the price, and delivers the bill of lading attached to an endorsee, for a valuable consideration, the consignee, upon receipt of the goods, takes them subject to the right of the holder of the bill of lading, to demand payment of the bill of exchange, and cannot retain the price of the goods on account of a debt due to him by the consignor: Emory & Sons v. Irving National Bank, 25 Ohio 360; Bank of Rochester v. Jones, 4 Comstock 497; Bissell v. Steel, 17 P. F. Smith 445.

      November 18th 1878,
   The judgment of the Supreme Court was entered

Per, Curiam.

The bill of lading was attached to the draft in this case as a security for its payment. It was therefore evidence of an appropriation of the proceeds of sale of the property contained in the bill of lading, whether the bill was endorsed or not. The consignment to the defendants was for sale only, and therefore when they had notice of the draft and bill of lading before sale, they were informed of the appropriation of the proceeds of sale, and could not apply them to an old debt of their own.

Judgment affirmed.


text:
    Fox et al. versus Fox.
    1. To convert a devisee into a trustee of the legal title there must be clear proof of a contract to that effect between the devisee and the devisor.
    2. Mere dying declarations, or requests made by a testator, cannot operate as a revocation of his will.
    3. The disappointment of the expectations of a testator’s children, however grievous, is not sufficient to repeal a will.
    November 1st 1878.
    Before Agnew, C. J., Merctjr, Gordon, Paxson and Trunicey, JJ. Sharswood and Woodward, JJ., absent.
    Appeal from tbo Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 153. In Equity.
    Appeal of John C. Fox and others from the decree of the court dismissing their exceptions to the report of the master in certain proceedings, commenced by bill in equity alleging a verbal contract on the part of Levi Fox, and a resulting trust in him for the use of appellants, and praying that the said Levi Fox be decreed to specifically perform said agreement and trust.
    The bill alleged, that John Fox died Nov. 4th 1874, leaving Sarah A. Fox, Isaac B. Fox, minor children of Isaac Fox, deceased, Mary Gongaware and John 0. Fox, plaintiffs, and Levi Fox, the defendant; that he died possessed of real estate of the value of $13,200, or thereabouts, and personal property, amounting to about $10,037.15 and upwards ; that ho made his will on 18th June 1874, by which he devised much the larger part of his estate to Levi Fox, giving to his daughter Mary $45Ú0 as for her services, as she had served him until she was over forty years of age; that at the time the will was made he was laboring under a feeling of prejudice toward the plaintiffs, or some of them, which induced him to make it as he did ; that subsequent to the making of the will, and while on his death-bed, he declared in the presence of John C. Eox, Levi Eox, Mary Gongaware, and several witnesses, that he could not die in peace the way his will was; that he wanted his property divided as nearly equally as could be between his children ; that John C. Eox should have at least three or four thousand dollars more than he had given him by his will; that Levi Eox, in answer to his father’s request, in the presence of John C. Fox and Mary Gongaware, said to his father, “ Don’t trouble yourself, father; it will be all right. I will do as you have said; your request shall be carried out;” that testator appealed to one of his neighbors present to see that this • was done, and confiding in what Levi Eox said, made no further effort to change his will or make a new one, and died in three days thereafter; that Levi Eox, after the death of his father, promised to carry out the request of his father and fulfil the agreement that his father’s estate should equally descend to his children; that Levi Eox took possession of the whole of the estate of John Eox, and that three-fourths of it, after payment of debts, &c., was held in trust by Levi Eox for the plaintiffs, and that he is now holding the same in trust by reason of the request and agreement aforesaid, and that, although he thus held the estate in trust, he had not executed the trust, and refused to do so, and the bill then prayed that he be decreed to perform said trust, and to pay over to plaintiffs three-fourths of the personal estate of the decedent in such proportions as the testator had designated on his death-bed, and to execute a declaration of trust of the realty. The answer admitted that decedent had made his will as set forth in the bill, but denied that he had made any such request, or that defendant had made any such promise as that alleged therein. The case was referred to a master, who reported that the testator was not laboring under a feeling of prejudice towards the plaintiffs when his will was executed; that he made no effort afterwards to alter his will, and that he was not prevented from so doing by the defendant; that defendant made no promise to divide the estate, and that no part thereof was held in trust by him.
    The plaintiffs excepted, and the court dismissed the exceptions, holding, inter alia, that the facts did not constitute a trust ex maleficio. The plaintiffs then took this appeal.

      H. P. Laird and Hunter Hlingensmith, for appellants.
    The assurances given by Levi to his father were sufficient- to raise a trust: Dixon v. Olmius, 1 Cox Ch. Cas. 414; Harris v. Horwell, Gilb. Eq. Rep. 11; Chamberlaine v. Chamberlaine, 2 Freeman 34 ; Hoge v. Hoge, 1 Watts 214; Jones v. McKee, 3 Barr 496; McKee v. Jones, 6 Id. 425; Gaullaher v. Gaullaher, 5 Watts 200; Murphy v. Hubert, 7 Barr 420; Tritt v. Crotzer, 1 Harris 454; Church v. Ruland, 14 P. F. Smith 432.

      B. 1). Foster and JT. Q. Marchand, for appellee.
    A devisee cannot be converted into a trustee of the legal title, except on proof of an agreement to that effect between him and the devisor before making the will: Irwin v. Irwin, 10 Casey 525. A will executed in all the solemnities and formalities required by the statute cannot be set aside by the declarations of the devisee, testified to by persons interested in the destruction of the will: Clingan v. Mitcheltree, 7 Casey 25.
   The judgment of the Supreme Court was entered, November 11th 1878,

Per Curiam.

There is no evidence to create a trust ex maleficio from acts or promises contemporary with the making and execution of the will. The evidence relates to conduct and promises made long afterwards, and when the testator was lying on his deathbed. The act relating to wills, of 8th April 1833, § 13, declares that no will shall be repealed, or its devises and directions altered, except by a will, or codicil, or other writing executed and proved in the same manner as a will, or by burning, cancelling, obliterating, or destroying it by the testator, or in his presence and by his express direction. It is evident, if the alleged promises and declarations of Levi Fox can be used to raise a trust, their effect would be to alter and destroy the devises and bequests in the will in a manner wholly at variance with the provisions of the law, and would lead to the most disastrous frauds. We see nothing in the testimony which would justify the raising of a trust of any kind which can operate to alter the will of John Fox. Doubtless it may be a hard case, and expectations may have been raised in the minds of the other children, but this is insufficient to repeal a will contrary to the express words of the law.

Decree affirmed, with costs to be paid by the appellants, and the appeal is dismissed.