author: Mr. Justice Stewart,

text:
    Graham’s Estate
    (No. 1).

      Trusts and trustees — Mismanagement of trust estate — Liability of trustees —Misconduct of cotrustee.

    Where a testator appoints three trustees of his estate, and two of them permit their cotrustee to manage and control the estate, and die without any of the trust funds ever having been received by them, and it comes to light many years after their death that the third trustee had embezzled the trust money, in order to charge the estates of the earlier deceased trustees with the loss it must be made to appear that the devistavit occurred in their lifetime, and that their mismanagement and neglect contributed to the result.
    Argued Jan. 15,1907.-
    Reargued April 1, 1907.
    Appeal, No. 268, Jan. T., 1906, by Frank D. Graham and John D. Ford, executors of the will of David Toung, deceased, from decree of O. C. Phila. Co., April T., 1896, No. 239, dismissing exceptions to auditor’s report in Estate of David Graham, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to report of James C. Stillwell, Esq., auditor.
    From the record it appeared that a petition for an account, which was filed by the administrator de bonis non cum testamento annexo of David Graham and by five of his grandchildren, set forth that David Graham died in September, 1871, leaving a last will, of which he appointed Theodore R. Graham, David Graham, Jr., and David Young executors, to whom letters testamentary were duly granted; that David Graham, Jr., died July 4, 1886, leaving a last will, of which he appointed his wife, Maria Elizabeth Graham, executrix; David Young died October 4, 1890, leaving a last will of which he appointed Theodore R. Graham, Frank D. Graham and John D. Ford executors; Theodore R. Graham was dismissed as executor of the will of David Graham on May 13, 1896; that the Commonwealth Title Insurance and Trust Company was appointed administrator de bonis non cum testamento annexo of David Graham on May 14,1896; that the executors of the will of David Toung had not filed an account of their administration of his estate although more than twenty-nine years had elapsed since the grant of letters to them; that by the terms of the will of David Graham his estate was to be held by his executors and trustees for the life of his children, with remainder to their issue, and, in case any child should die without issue, his share was to be held for the remaining children of testator and their issue; that by the terms of the will of testator, the moneys of his estate were to be invested in first mortgage on real estate and bonds of the United States or State of Pennsylvania; that-of the seven children of David Graham, only Frank D. Graham and Theodore R. Graham survived, and of those who died only William R. Graham and Edwin Graham had left children; that in May, 1896, when Theodore R. Graham was dismissed from his office, petitioners had learned that, as alleged, the executors of and trustees under the will of David Graham had been guilty of gross mismanagement of said estate, and that David Graham, Jr., and David Young had been supinely negligent of their duties, so that it was in the power of Theodore R. Graham to embezzle and defraud the said estate; that David Young was a borrower from said estate, and permitted moneys of the estate to be loaned to a firm of which he was a member; that proceedings had been begun in 1896 in the orphans’ court for an accounting, and that under proceedings in said court an account was stated for Theodore R. Graham, the surviving and defaulting executor of the will of David Graham, by an auditor appointed by the court, showing that he was indebted to said estate in the sum of $149,675.51, and that an order to pay had not been complied with by the said Theodore R. Graham, and an attachment thereunder was returned not served. The petitioners prayed for a citation on the executrix and executors of the deceased executors to file accounts for their respective decedents.
    The answers of respondents set forth that the individual petitioners, who were sui juris, and those who were minors by their guardians, had an opportunity to obtain full information in regard to the estate of David Graham at any time they so desired; that the deceased executors had not been supinely negligent of their duties or were guilty of any mismanagement of said estate, or that by any culpable mismanagement they put it in the power of Theodore R. Graham to embezzle and defraud; that the said David Young did not unlawfully borrow moneys from said estate, or permit the lending of moneys of the decedent’s estate to the firm of which he was a member; that petitioners had not exercised due diligence in enforcing their claims against the said Theodore R. Graham, and that any statement of an account for Theodore R. Graham could not affect respondents or be a charge against them; that all the debts of the said David Graham had been 'fully paid and discharged more than thirty years before the filing of the said petition; that the assets of the estate of said David Graham were in the possession and control of the said Theodore R. Graham, a son of David Graham, and uncle of the individual petitioners, and were in such possession and control with the acquiescence and permission of the individual petitioners; that Theodore R. Graham was a man in active business, having the full respect and confidence of the business community at all times during the lifetime of respondents’ decedents ; that the said Theodore R. Graham had been dismissed from his office as executor on the application of petitioners without any notice to respondents; that more than thirty years had elapsed since the death of David Graham; that the debts of said David Graham had been paid more than thirty years ago, and that the estate had passed into the hands of said Theodore R. Graham as trustee without any demand upon his coexecutors for an accounting, and with the full knowledge and assent of the parties in interest.
    The case was referred to James C. Stillwell, Esq., auditor, who reported in favor of the petitioners.
    Exceptions to the auditor’s report were dismissed in an opinion by Ashman, J., and the following decree was entered :
    And now, July 17, 1906, the supplemental report of the auditor, to whom was recommitted the report of the auditor to state an account of David Young and David Graham, Jr., executors and trustees under the will of David Graham, deceased, and to make distribution of the amount found to be due by the said executors and trustees, having been duly filed with exceptions thereto; and the said exceptions having been dismissed on July 14, instant, and the said auditor’s report confirmed, it is hereby ordered, adjudged and decreed that the said auditor’s reports and the awards therein, made to the Commonwealth Title Insurance and Trust Company, administrator d. b. n. c. t. a. of the estate of David' Graham, deceased, of the sum of $175,637.49 from the estate of David Graham, Jr., deceased, and the sum of $216,107.66 from the estate of David Young, deceased, be and are hereby approved and confirmed.

      Error assigned was the decree of the court, quoting it.

      John G. Johnson, with him H. 8. P. Nichols, for appellants.
    —More than twenty-one years having elapsed since the account in this matter was demandable, the legal representatives of the deceased executors cannot be compelled to file an account: Norris’s App., 71 Pa. 106; Henry’s Est., 198 Pa. 382; Nixon’s Est., 14 Phila. 297; Seibert’s App., 2 W. N. C. 53; Hanbest’s Est., 3 W. N. C. 520; Wilson’s App., 115 Pa. 95; Neel v. Beach, 92 Pa. 221.
    The testimony shows that the deceased executors never received any assets of their decedent’s estate, and, not having received assets, they are not chargeable with them, nor liable to account for them: Brown’s App., 1 Dallas, 311; Weldy’s App., 102 Pa. 454; Hall v. Boyd, 6 Pa. 267; Stell’s App., 10 Pa. 149; Irwin’s App., 35 Pa. 294.
    There is no proof that the deceased executors were guilty of negligence or mismanagement of the estate. They showed no undue confidence in their coexecutor, they trusted him no farther than the parties in interest did. The coexecutor was a respected citizen, and considered a man of integrity, trustworthy, and of financial responsibility. The deceased executors were certainly not chargeable with greater insight than other persons: Sterrett’s App., 2 Penrose & Watts, 419; Jones’s App., 8 W. & S. 143; McNair’s App., 4 Rawle, 148; Fesmire’s Est., 134 Pa. 67; Myer v. Myer, 42 W. N. C. 445; Neff’s App., 57 Pa. 91; Semple’s.Est.; 189 Pa. 385; Young’s App., 99 Pa. 74; Beatty’s Est., 214 Pa. 449.
    It was the duty of those interested in the estate of David Graham to establish, within six years of the decease of each executor and trustee, a claim against his estate, for payment of money, because of negligent management of his trust during his lifetime.

      A failure to establish a claim against the estate of the deceased executor during the period of six years, was a bar to any claim thereafter.
    In no event should the court have ordered a payment by the executors of the deceased executor until an ascertainment, under a citation to file an account of their executorship of the estate of the decedent, that there were funds in hand which had not been theretofore distributed.

      Henry Budd, with him Robert H McGrath, for appellee.
    "Where a coexecutor dies, his estate becomes liable for everything he was liable for at the time of his death, and this liability for the maladministration of his coexecutor or of himself can only be determined after an account and evidence: Montgomery’s Estate, 3 Brewster, 306; Hanbest’s Estate, 3 W. N. C. 520.
    The claim is not barred by lapse of time : Nixon’s Est., 14 Phila. 297; Hoffman’s Est., 2 Pearson, 491; Blackman’s Est., 2 Rulp, 162; Brown’s Est., 8 Phila. 197; Hall v. Cushing, 26 Mass. 395; Conkey v. Dickinson, 54 Mass. 51; Hansell v. Downing, 17 Pa. Superior Ct. 235; Dragoo v. Dragoo, 50 Mich. 573 (15 N. W. Repr. 910).
    If a man appoint several executors, they are esteemed, in law, but as one person representing the testator, and, therefore, the acts done by any one of them, which relate either to the delivery, gift, sale, payment, possession or release of the testator’s goods, are deemed the acts of all, for they have a joint and entire authority over the whole: Wood’s Appeal, 92 Pa. 379; First Nat. Bank of Allegheny v. Farmers’ Deposit Nat. Bank of Pittsburg, 5 Cent. Repr. 505; Lightcap’s Appeal, 95 Pa. 455; 1 Perry on Trusts, sec. 263; Williams on Ex., 6th Am. Ed. 946; Schouler on Ex. & Adrars., sec. 400, etc.
    Whenever either a trustee or an executor, by his own negligence or laches, suffers his cotrustee or coexecutor to receive or waste the trust funds or assets of the testator, when he has the means of preventing such receipt and waste by the exercise of reasonable care and diligence, then, and in such case, such trustee or executor will be held personally responsible for the loss occasioned by such receipt and waste of his cotrustee or coexecutor: Wilmerding v. McKesson, 103 N. Y. 329 (8 N. E. Repr. 665); Booth v. Booth, 1 Beav. 125; 2 Story’s Equity Jurisprudence, sec. 1,283; Hall v. Boyd, 6 Pa. 267; Stell’s App., 10 Pa. 149; Jones’s App., 8 W. & S. 143; Sterrett’s App., 2 P. & W. 419; Clark’s App., 18 Pa. 175; Lightcap’s App., 95 Pa. 455; Weldy’s App., 102 Pa. 454; Weigand’s App., 28 Pa. 471; DeHaven v. Williams, 80 Pa. 480; Fesmire’s Est., 134 Pa. 67.
    May 20, 1907 :
   Opinion by

Mr. Justice Stewart,

David Graham died in Philadelphia on September 21, 1871, leaving a last will which was proved September 30, 1871. Letters testamentary were granted to David Young, David Graham, Jr., and Theodore R. Graham, the executors named in the will. The testator was survived by his seven children. The will, after directing the payment of his debts and a small annuity, gave the residue of the estate, real and personal, to the executors and trustees and the survivor of them, in trust to collect the rents and interest therefrom and pay the net income to his seven children in equal shares. Upon the decease of any or all of testator’s children, leaving lawful issue, the will gave to such issue, upon their respectively arriving at lawful age, such share as they respectively would be entitled to under the intestate laws. The estate given to the issue of a deceased child was to be held in trust, and the income appropriated to the support and education of such issue during minority. The executors and trustees were authorized to sell and convey all or any part of the estate whenever in their judgment it would be for the benefit of the estate, and directed to invest the proceeds in first bonds and mortgages of the United States, or State of Pennsylvania, or Philadelphia. On October 30, 1871, the executors filed an inventory and appraisement of the estate, consisting of household furniture, mortgages, stocks, bonds and good loans, amounting in the aggregate to $246,501.40. David Graham, Jr., one of the exucutors, died July 4, 1886; David Young, another of the executors, died October 4, 1890; Theodore R. Graham, the remaining executor, was dismissed from his office as executor on May 13, 1896. None of the executors ever filed.an account. On May 14, 1896, letters of administration d. b. n. c. t. a. on David Graham’s estate were granted to the Commonwealth Title Insurance and. Trust Company. In August, 1896, and February, 1897, petitions were filed by the administrator and certain legatees for a citation on the executors of David Graham, Jr., and David Young, to file accounts for their respective decedents as executors of David Graham, deceased. The proceedings on these petitions were without result.

Theodore R. Graham, surviving executor, failed to. file an account, and on December 2, 1896, the court appointed an auditor to take proof and state an account for him as executor. On January 18, 1902, the report of the auditor was confirmed showing a balance due from the executor to the estate of $149,675.51.

On May 27, 1902, the administrator and certain legatees again presented a petition asking for a citation on the executors of David Graham, Jr., deceased, and of David Young, deceased, to file accounts of their decedents as executors of David Graham, deceased. From the grant of.letters testamentary, September 30,1871, to the time of the death of David Graham, Jr., and David Young, respectively, it was alleged in the petition that the executors and trustees had been guilty of the grossest mismanagement and direct violation of their duties, and “ were supinely negligent of their duties in failing to inquire as to the assets or securities, the investments or reinvestments of the estate; in putting it in the power of their coexecutor and trustee to embezzle and defraud, and in the culpable omission of every duty which the acceptance of the trust demanded.” It was further averred in the petition, that the embezzlements from the estate began within three years of the assumption of the trust by the executors and trustees, and in 1890, at the death of David Young, had reached the amount of $140,000. Answers to the petition were filed by the executors of Graham and Young respectively, denying the allegations of mismanagement and embezzlement, admitting that Graham and Young had not filed accounts as executors of David Graham’s estate, and alleging that the respondents were without information of the condition, conduct or management of the estate of David Graham, deceased, prior to the death of David Graham, Jr., and David Young. The answers averred that Young and Graham, as executors and trustees, never had any of the funds or assets or any of the accounts of the estate of their testator in their possession or. control, and that more than thirty-one years had elapsed since the granting of letters testamentary in the estate, and praying that the petition be dismissed. Testimony was taken, and the court after a hearing on the petition, answer and testimony, appointed an auditor to state an account for David Young and David Graham as executors and trustees of David Graham, deceased. The auditor’s report was finally confirmed July 17, 1906. The auditor found due from the estate of David Graham, Jr., $175,637.49, and from the estate of David Young, $216,107.66, and both sums he awarded to the Commonwealth Title Insurance and Trust Company as administrator. The court entered a decree confirming the auditor’s report, and from that decree the executors of David Graham, Jr., deceased, and of David Young, deceased, have appealed.

The appellants deny the authority of the court, under the circumstances, to compel the representatives of the deceased executors to file an account; they allege that the auditor erred in not stating the account of all three of the executors to July 4, 1886, the date of David Graham’s death, and the account of the two surviving executors from that date to October 4, 1890, when Young died; that the auditor erred in charging each of the executors of David Graham, Jr., and of David Young with interest covering the same period; that the auditor erred in not requiring the interest payable to Theodore R. Graham, the defaulting executor and trustee, to be withheld from him or his assigns and applied to the payment of his indebtedness to the estate; and that the auditor erred in holding that there was any balance of principal unaccounted for by either David Graham, Jr., or David Young. The appellants further alleged that there is error in the order made by the court to pay the amounts found to be due from the deceased executor.

We have here two appeals, with the same facts presented in each. For purpose of discussion they may be considered together.

From the state of facts above made these conclusions result:

1. Upon the death of David Graham, Jr., in 1886, the entire control and management of the trust estate devolved upon the surviving trustees. The estate of David Graham, Jr., was at law discharged from liability in connection with the trust, except at the suit of the surviving trustees. They, and they alone, had the right to compel an accounting by David Graham’s legal representatives for such part of the trust estate as was in the hands of David Graham, Jr., at the time of his death ; they were the only parties entitled to receive, and, therefore, the only parties to make demand. Not only does the presumption obtain that David Graham, Jr., at the time of his death owed nothing to the trust fund, from the fact that the surviving trustees upon whom the law then cast the liability never made any claim or demand upon his estate, but it is an admitted fact in the case that he owed nothing, no part of the trust funds having been received by him.

2. Upon the death of David Young in 1890, the entire control and management of the trust estate devolved upon Theodore R. Graham, the sole surviving trustee. David Young’s estate was then at law discharged from liability in connection with the trust, except at the suit of the surviving trustee. As in the case of David Graham, Jr., not only does the presumption that David Young owed nothing to the trust estate obtain, from the fact that the surviving trustee, upon whom the law then cast the entire liability, never made any claim or demand upon his estate, but here again it is admitted that no portion of the trust estate passed into his hands.

3. Presumably the entire estate after the death of David Young was intact in the hands of Theodore R. Graham, and so continued until his discharge in 1896. Certainly this was the measure of his liability. “ Upon the death of one of the original trustees the whole estate, whether real or personal, devolves upon the survivors, and so on until the last survivor ; and upon the death of the last survivor, if he has made no disposition of the estate by will or otherwise, it devolves upon his heirs, if real estate, and upon his executors or administrators if it is personal estate. The title in the surviving trustee is complete, and no breach of trust after the death of his co-trustees can be charged upon their estate, nor can the representatives of his cotrustee interfere with his management of the trust estate, even if he is insolvent or unfit for the trust: ” Perry on Trusts, sec. 343.

4. While the death of David Graham, Jr., and David Young operated at law to discharge from liability their respective estates, a liability in equity at once attached, available to the parties directly in interest: Hengst’s Appeal, 24 Pa. 413; Young’s Appeal, 99 Pa. 74; Fesmire’s Estate, 134 Pa. 67. The fact that neither had ever received any money of the estate, would be a sufficient answer to any demand upon their personal representatives by the surviving trustees; but such fact would not exempt their estate from liability to-the parties in interest, if it was through neglect of duty on their' part that no funds came into their hands, and loss had befallen the estate in consequence. The effort here is to fasten an equitable liability on the estates of David Graham, Jr., and David Young for a devastavit committed by Theodore Graham. If such devistavit would not have occurred except for neglect of duty on the part of the cotrustees, the estate of the latter ought in equity to make good the loss whatever it be. Any inquiry must begin with the fact of a devastavit committed by Theodore Graham, and by him alone of all the trustees; but the very first thing to be determined is when the devistavit occurred. It is not a question of joint liability for trust funds, or whether all, so long as they were alive, participated in the management of the trust. Joint liability may be admitted up to the death of Graham and Young, but both died owing the trust nothing, and they were not sureties for the surviving trustee. What was the condition of the trust estate when Young died? Was it intact in the hands of the surviving trustee? If so, of what use carl it be to inquire whether the other trustees were negligent in permitting Theodore R. Graham to have exclusive control of the funds ? The law takes no account of neglect except as loss results. What difference can it make that no account had been filed ? It was, of course, gross neglect of duty not to file an account; but if, notwithstanding, the fund was intact when Young died, his default in this regard came to nothing. Until it be made to appear that the diversion and waste of the fund occurred prior to the death of Young, inquiry as to the methods observed by the trustees in the management of the funds can avail nothing. Were it ascertained as a fact that before the death of Young funds belonging to the estate had been misapplied by Theodore Graham, two inquiries would then follow; first, what was the amount misapplied or diverted and lost, and second, how much of this misappropriation ought Young’s estate, from equitable considerations, make good ? The distinction between the legal and equitable liability is here to be closely observed. For the misapplication of funds by one of three trustees, the other two are not liable until it be first shown that it has occurred through some default of theirs. Each trustee has an equal right with the others with respect to the custody of the funds, so that, with the fact determined that a devastavit by Theodore R. Graham in the lifetime of Young occurred, and the amount of loss, the question would still remain, for how much of it ought Young’s estate in good conscience and equity be held liable ? It may have come about through different transactions at different times, some of which Young, by proper care and vigilance, could have prevented, while with respect to others he would have been powerless to interfere. A specific finding of facts would be required to determine the amount of liability.

5. Now, applying these general principles, we have here an account stated by an auditor charging the estate of David Graham, deceased, with $175,637.49, the entire value of the trust estate at the time of his death; and an account charging the estate of David Young with $216,107.66, the entire value of the estate at the time of his death. Since it is an established fact that not a dollar of the trust passed into the estates of either Graham or Young, these charges to have any warrant at all must rest upon some equitable considerations sufficient to move the conscience of a chancellor. Did the insolvency of Theodore R. Graham occur during the lifetime of either David Graham, Jr., or David Young? Not only is there no such finding, but, so far as we can see, there is no evidence upon which an affirmative finding of such fact could rest. Even were it otherwise, without more, it would not warrant a charge against Graham and Young for the entire estate. "What was their negligence in the matter that occasioned or contributed to the loss ? The question is not what was their neglect of duty generally, but how did their failure to do anything that duty required of them produce the result to the estate ? Did either know or have reason to know that his co-trustee, who was as much entitled to the custody of the funds as himself, was insolvent or likely to become so ? When did either of them ascertain it, or when in the exercise of prudence should he have ascertained it ? Their responsibility and accountability would begin only when their prudence failed; for what occurred before, they were not liable. We have searched through the findings of the auditor, and indeed through the whole record for that matter, without finding any light on these most material questions. The only finding by the auditor that has any bearing on the question is his 26th, which, so far as it goes, is distinctly adverse to the contention of the appellees. The auditor finds that: “ during the entire period of his connection with the said firm ” (which continued for years after the death of David Young), “Theodore R. Graham had the confidence of his employers and copartners and no one, so far as the evidence discloses, questioned his honesty or financial responsibility in any way.” If we look into the evidence we find nothing there on the subject, except the testimony of Mr. Field, the business partner of both Theodore R. Graham and David Young, and the only inference to be derived from his testimony is, that Theodore R. Graham’s insolvency did not occur until long after David Young’s death. He testified, among other things, that up until this later period his integrity had never been questioned. The effort before the auditor was to show a joint liability resulting from the participation of all in the business of the trust; and from an affirmative finding here, it seems to have been assumed that liability of the estates of the deceased trustees resulted as matter of law. But as we have said, this is aside from the issue; joint liability up to the period of death is a conceded fact; but after that joint liability ceased; and if Graham and Young’s estates are to be held, it must be solely because of misconduct or neglect. It may be that this entire loss has resulted from their failure to do their duties as trustees, but there is no evidence of such fact and the law will not presume it.

The contention of the appellees is, that Theodore R. Graham began to misapply the funds immediately upon his' appointment, and that he continued so doing until the sum total of the misappropriation at the time of the death, of Young amounted to $87,725. The assertion has nothing to support it, except the fact that during all this period Theodore R. Graham, as trustee, had been from time to time, with the assent and co-operation of his cotrastees, converting certain securities and receiving into his hands the money therefor, until the total so received amounted to the sum stated. There is no evidence whatever that he misapplied or wasted a dollar of it before Young’s death. Suppose it was negligence in his co-trustees to permit this accumulation of money in his hands, how could such negligence have occasioned the loss if his devastavit occurred at a latter period, when by operation of law, and not by consent of his cotrustees, he was invested with control of the entire estate? As trustee he had a right to receive this money with the assent of his cotrustees, and its- mere receipt with their acquiescence gives rise to no inference of any dolus mal us on their part, or malfeasance on his.

In view of our conclusions the other questions so elaborately argued as to the effect of the lapse of time upon the right to demand an accounting, and the power of the court to decree a payment of the balance found due on the accounts directly to the successor in the trust, need not be considered. We rest our determination in the case wholly upon the ground that the record discloses nothing which in equity and good conscience requires an accounting by either estate here involved. Whether upon the showing made before the lower court, there was sufficient to call for the appointment of an auditor to state these accounts, we need not decide. It is enough to know that from the facts found by the auditor no liability to account results. The effect of our ruling will be to terminate the proceeding.

The exceptions, so far as they question the sufficiency of the findings of the auditor for the accounts stated by him against these several estates, and the decree of the court confirming the same are sustained. The decree is reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Graham’s Estate
    (No. 2).
    Argued Jan. 15, 1907.
    Reargued April 1, 1907.
    Appeal, No. 269, Jan. T., 1906, by Maria Elizabeth Graham, Executrix of the will of David Graham, Jr., deceased, from decree of O. C. Phila. Co., April T., 1896, No. 239, dismissing exceptions to auditor’s report in Estate of David Graham, deceased.
    Before Mitchell, C. J.,'Fell,'Brown, Mestbezat,'Potter, Elkin and Stewabt, JJ.
    Reversed.
    May 20, 1907 :
   Opinion by

Mr. Justice Stewart,

This case presents no features other than those considered in the appeal of the executors of the will of David Young, deceased, just decided, ante, p. 344. The same considerations which control there must govern here.

The decree is reversed.


text:
    Graham’s Estate
    (No. 3).

      Trusts and trustees — Account—Order to pay — Practice, O. C. — Decree.
    An order upon the personal representatives of a decedent to pay in advance of any statement of account cannot be made by the orphans’ court as such an order would be in disregard of the equal rights of other possible creditors of equal standing.
    Where a decree of the orphans’ court sustaining the liability of a deceased trustee’s estate for a loss of trust funds, has been reversed, a subsequent decree directing the representatives of the deceased trustee to pay over the award against them to the petitioning claimant, falls as a matter of course with the reversal of the previous decree.
    Argued Jan. 15, 1907.
    Reargued April 1, 1907.
    Appeal, No. 14, Jan. T., 1907, by Frank D. Graham and John D. Ford, Executors of and Trustees under the will of David Young, deceased, from decree of O. O. Phila. Co., April T., 1896, No. 239, dismissing exceptions to auditor’s report in Estate of David Graham, deceased.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Potter, Elkin and Stewabt, JJ.
    Reversed.-

      Petition for order to pay.
    The petition for an order to pay was presented to the orphans’ court on July 19, 1906, by the Commonwealth Title Insurance and Trust Company, administrator d. b. n. c. t. a. of David Graham, deceased, setting forth that by the report of the auditor appointed by the court to state an account of David Young and David Graham, Jr., executors and trustees under the will of David Graham, deceased, confirmed by the court on July 17, 1906, there was found to be due by David Young, deceased, as executor and trustee, $216,107.66, and awarded to the said petitioner; that no part of the said sum had been paid by the estate of David Young, and prayed for an order on Frank D. Graham and John D. Ford, executors of, and trustees under, the last will of David Young, deceased,directing them to pay the said sum of $216,107.66 to said petitioner, whereupon on the same day the court entered a decree directing said Frank D. Graham and John D. Ford, executors and trustees, as aforesaid, to pay the said sum found due in the estate of David Graham, deceased.

      Error assigned was the decree of the court.

      John G. Johnson, with him II. 8. P. Nichols, for appellant.

      Henry Bucld, with him Robert H. McGrath, for appellees.
    May 27, 1907:
   Opinion by

Mr. Justice Stewart,

The appeal of these same parties to No. IT, January Term, 1907, ante, p. 344, just decided, having been sustained, and the decree of the court in that case having been set aside, the order complained of in this appeal requiring the balance on the account instructed by the auditor to be paid over to the administrators d. b. n. c. t. a. of David Young, deceased, necessarily falls with the decree. There is, therefore, no occasion for present discussion of the question here sought to be raised. It is sufficient to say that because of manifest error in the order the appeal must be sustained. Had the original decree confirming the auditor’s report stood, the only proper way of enforcing liability thereunder would have been to require an account by the legal representatives of David Young deceased,

so that the parties claiming under the decree could obtain such award as they might be entitled to in the distribution of the estate. An order to pay in advance of any statement of account would be in disregard of the equal rights of other possible creditors of equal standing. Appeal sustained, and the order and decree of the court below reversed.


text:
    Paterson, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Standing on platform — Presumption— Evidence.

    When one chooses to ride upon the platform of a car rather than wait for a car in which he can be accommodated, if not with a seat, with standing room at least inside, and is injured in consequence, the law does not concern itself to inquire as to the consideration which influenced his choice. Thus where a man standing in a crowded car gives his place to a woman, and takes his stand on the front platform of the car, and is injured while there, he forfeits the advantage of the presumption, which the law raises in favor of one injured while riding in the car, that the accident resulted from the negligence of the company.
    Argued April 3, 1907.
    Appeal, No. 118, Jan. T., 1907, by plaintiff, from judgment of O. P. No. é, Phila. Co., June T., 1906, No. 2,518, on verdict for defendant in case of Dugald S. Paterson v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial Audenreid, J., in giving binding instructions for defendant, described the accident as follows:
    The plaintiff was a passenger in one of the defendant’s cars. He was riding inside of it. It is true that he had no seat, but he was standing inside of the body of. the car in a position of safety. When the car reached a certain crossing two ladies, and, as I recall the testimony, a gentleman, signitied their intention to board it. The body of the car was already filled with passengers. The plaintiff knew that there was no more room inside of it. Nevertheless, he alighted from the car to make way for the ladies. As might have been expected, one of them took the place he had vacated. There was no other place for her to take inside the car. When the plaintiff stepped on the car again he was obliged to take a position on the platform or step. Here he was standing when the car passed a wagon which struck and injured him. He would not have been hurt if he had remained inside the car.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Louis Brégy, with him H. JELomer Ealby, for appellant,
    cited: Thane v. Traction Co., 191 Pa. 249; Bumbear v. Traction Co., 198 Pa. 198; McCaw v. Traction Co., 205 Pa. 271.

      Thomas Learning, with him Charles Biddle, for appellee,
    cited : Crary v. Lehigh Valley R. R. Co., 203 Pa. 525; Woodroffe v. Roxborough, etc., Ry. Co., 201 Pa. 521; Thane v. Scranton Traction Co., 191 Pa. 249; McDade v. Phila. Rapid Transit Co., 215 Pa. 105.
    May 20, 1907:
   Opinion by

Mr. Justice Stewart,

When one chooses to ride upon the platform of a car rather than wait for a car in which he can be accommodated, if not with a seat, with standing room at least inside, and is injured in consequence, the law does not concern itself to inquire as to the considerations which influenced his choice. Whether serious or trivial, the result is the same. The platform is a known place of' danger, and one voluntarily there assumes the risk. Por the exigency which determines him to take the risk rather than delay for another car, the company is not responsible. In this case the plaintiff, with a courtesy altogether commendable, surrendered his place within the car to a lady who, but for his action, would have been excluded. Having once yielded his place in the car, he was put to his choice whether to ride on the platform or take a later car, just as the person he accommodated would have been obliged to do had he not surrendered his advantage to her. The legal consequence of his choice was that he forfeited the advantage of the presumption, which the law raises in favor of one injured while riding in the car, that the accident resulted from the negligence of the company. His riding on the platform would not excuse negligence on the part of the company in exposing him to known and avoidable danger ; but it put upon him the burden of showing that his injuries resulted from negligence of this degree. There was nothing in the evidence to support any such contention. From all that appears, it was an accident which even more than the care required under the circumstances to exculpate the defendant would not have avoided.

Judgment affirmed.


author: Per Curiam,

text:
    Tanner’s Estate.

      Guardian and ward — Sale by guardian — Setting aside sale — Purchase by guardian.

    The fact that a sale of a minor’s interest in land is made by the guardian for the purpose of securing for himself and others the title thereto, is sufficient ground for setting aside the sale without proof of actual fraud or inadequacy of price. That the intent was honest and a full consideration was paid does not prevent the application of the rule that a person assuming a fiduciary relation towards another in regard to property is disabled from using his power for his private benefit and that he cannot directly or indirectly become a purchaser at his own sale.
    Argued May 7, 1907.
    Appeal, No. 117, Jan. T., 1907, by Bryant E. Sherman et al., from decree of O. C. McKean Co., Oct. T., 1905, No. 12, setting aside guardian’s sale in Estate of Stella A. Qurtis Tanner, Minor.
    'Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Petition to set aside sale.
    Bouton, P. J., filed the following opinion:
    From the record it appears that Wallace E. Curtis died at Bradford in this county, on August 22, 1888, intestate, leaving a widow, Dillie Curtis, since intermarried with Jacob 'Dollmetsch, and a daughter, Stella A. Curtis, all of whom reside in this county.
    That on or about August 27, 1888, letters of administration were issued to the said Dillie Curtis, and that on November 9, 1903, Bryant E. Sherman was appointed guardian of said .minor daughter, Stella A. Curtis.
    That the said Wallace E. Curtis was, prior to his decease, seized and possessed of a certain tract of land situated in this county, known as the Mantz farm, containing 130 acres and ninety-three perches.
    That the right to take the petroleum, rock oil and gas in, underlying or appurtenant to the said land was reserved by the grantors of the said "Wallace E. Curtis for the term of twenty years from August 26, 1885, there being at that time upon the said land nineteen wells producing oil.
    It further appears that by sundry conveyances the said Bryant E. Sherman, Charles F. Schwab and D. E. HafEey became the owners of the said wells and oil rights so reserved, and were in possession and operating the same at the time the petition for sale was presented in this case.
    It further appears from the petition that the said minor, Stella A. Curtis, would become the owner of the said oil right so reserved by the grantor of Wallace E. Curtis on August 26, 1905, subject to the dower right of her mother.
    On December 14, 1903, the said Bryant E. Sherman, guardian, presented his petition to this court praying for an order authorizing private sale to Charles E. Schwab of the interest of his said ward, Stella A. Curtis, in and to the petroleum or rock oil and gas in the said tract of land, for the sum of $1,666.67. And on the same day the court authorized said private sale, the purchase price to be paid in cash; following this order deed was made and executed by the guardian to the said Charles F. Schwab, purchaser; which deed was duly acknowledged and delivered to the said Charles F. Schwab.
    On September 14,1904, the said Stella A. Curtis, then intermarried with Edward Tanner, by her next friend the said Edward Tanner, presented her petition to this court, praying that the sale to Charles E. Schwab be set aside and the decree of confirmation be revoked, and for a decree directing a reconveyance of the said oil right and restitution of the purchase money.
    Upon this petition rule to show cause was granted, to which rule the said Bryant E. Sherman, Charles F. Schwab and D. E. Haffey each filed separate answers. The petition avers that the sale was made and consummated under an arrangement between the said D. E. Iiaffey, Charles F. Schwab and Bryant E. Sherman, in which it was.agreed that a sale thereof should be made for the sole purpose of obtaining a title to said oil right in the said Charles F. Schwab, and that he should thereafter make a transfer of'the portion of the same to the said D. E. Haffey and Bryant E. Sherman according to the respective interests in said land; and that said agreement had been consummated and carried out and said parties are now the owners thereof and in possession of the same. These allegations are not denied by the respondents, Bryant E. Sherman, Charles F. Schwab and D. E. Haffey, or either of them.
    From the evidence it appears that the said Stella A. Curtis was nineteen years of age on the nineteenth day of March, 1906, that the rights to the oil and gas which were owned by Sherman, Schwab and Haffey were about to expire, and they being desirous of continuing the operations for oil and gas and of becoming the owners thereof, talked the matter over with the widow in the office of attorney Burdick, and it was there understood and arranged that Bryant E. Sherman was to be appointed guardian, was to make the application to the court to sell the interest of his ward to Charles F. Schwab, that Schwab was to become the purchaser not for himself alone, but for the joint interest of himself, Bryant E. Sherman and D. E. Haffey. And was to convey to Sherman and Haffey an interest in the same corresponding in quantity to the interest which they held prior to the sale.
    This brings us to the consideration of the question as to the rights of the ward to avoid the sale. Counsel for the respondents take the position that the sale having been finally consummated, deed executed, acknowledged and delivered, that it is too late for the ward to disaffirm the sale. With this contention we cannot agree. In our opinion she has the right at any time before arriving at the age of twenty-one years and within, a reasonable time thereafter to disaffirm and avoid the sale. If the rule were otherwise the rights of minors in real estate would have no protection, and their lands might be frittered away by an unscrupulous guardian without their knowledge, and they be left without a remedy.
    The petition for the sale of the land is entirely silent as to the purpose of the purchaser to convey an interest to the guardian and to D. E. Haffey under a previous arrangement so to do, and no information of this intent was given to the court. True it is that the answers of the respondents deny any fraud in the transaction or any inadequacy of price, and it may be that the price paid was all the interest of the minor was reasonably worth. Be that as it may, the fact that the guardian without leave of court made the sale with the understanding that he was to have an interest in the property re-conveyed to him puts him in the same position as a guardian purchasing at his own sale, and amounts to a fraud in law and gives the ward the right to avoid the sale at her election. As we understand the law, where a trustee purchases at his own sale the interest of his cestui que trust the sale is avoidable at the election of the cestui que trust without proof of actual fraud. The rule that a party will not be elected to purchase- and hold property for his own use and benefit to which he stands in a fiduciary relation, if contested by the cestui que trust is inflexible, and without regard to the consideration paid or the honesty of the intent: Chorpenning’s Appeal, 32 Pa. 315; Beeson v. Beeson, 9 Pa. 279.
    No, person acting in a fiduciary character can purchase at his own sale, directly or indirectly, or acquire by purchase any interest in the trust estate, without the consent of the beneficiary or others interested therein, or of the court having jurisdiction of the trust: Brittain’s Estate, 28 Pa. Superior Ct. 144. See also Shuman’s Appeal, 27 Pa. 64; Hannum’s Appeal, 2 Penny. 103.
    Or unless if selling under a power, he is by its terms permitted to purchase: Brittain’s Estate, supra.
    Under the facts in this case the sale must be set aside.
    And now, to wit: November 24, 1906, the sale made to Charles E. Schwab, under decree of December 14, 1903, is set aside, and the decree'of the court confirming the same revoked without prejudice to the rights of bona fide purchasers or mortgagees without notice. .
    And it is further ordered and decreed that the said Bryant E. Sherman refund to Charles F. Schwab the purchase money paid by him and that the said Bryant E. Sherman, Charles F. Schwab and I). E. Hafi'ey pay the costs of the proceedings for the sale of the said property and the costs of these proceedings.

      Error assigned was the decree of the court.

      R. B. Stone and Thomas H. Murray, with them W. E. BurdicJc, for appellants.

      John G. Johnson, with him Mullin Mullin, for appellee.
    May 20, 1907:
   Per Curiam,

' The fact alleged in the petition and not denied in the answer, that the sale of the minor’s interest in land was made by her guardian for the purpose of securing for himself and others the title thereto, was sufficient ground for setting aside the sale without proof of actual fraud or inadequacy of price. That the intent was honest and a full consideration was paid does not prevent the application of the rule that a person assuming a fiduciary relation towards another in regard to property is disabled from using his power for his private benefit and that he cannot directly or indirectly become a purchaser at his own sale. It is a rule founded on public policy to prevent a conflict between interest and duty. It is said in the notes to Fox v. Mackreath, 1 Lead: Cases in Equity, 239: “ It matters not that there was no fraud contemplated and no injury done. The rule is not intended to be remedial of actual wrong but preventive of the possibility of it; it is one of those processes, derived from the system of trusts, by which a court of chancery turns parties away from wrong, and from the power of doing wrong by making their act instantly enure in equity to the rightful purpose. The cases are uniform in declaring that it matters not how innocent and bona fide, and free from the suggestion of fault, the transaction may be.”

The judgment is affirmed at the cost of the appellant.


text:
    Cobb, Appellant v. Warren Street Railway Company.

      Street railways■ — Elevated crossing — Consent of property owners.

    Where no special injury will result to property owners on one side of a street by reason of the construction by a street railway of an elevated approach to a crossing of a steam railroad wholly upon the other side of the street, and outside of the traveled limits thereof, such owners have no standing to enjoin the construction.
    Argued May 7, 1907.
    Appeal, No. 132, Jan. T., 1907, by plaintiffs, from decree of C. P. Warren Co., Dec. T., 1906, No. 48, dismissing bill in equity in case of Edd Cobb, E. L. Coates, TIenry A. Moll and Z. A. Blackwell v. Warren Street Railway Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Lindsey, P. J., found the following findings of fact and conclusions of law:
    This bill was filed by the plaintiffs to restrain the defendant from elevating its electric railway track in order to reach an elevated crossing over the Western New York and Pennsylvania railroad tracks at what is known as Glade, in this county.
    1. The defendant, the Warren Street Railway Company, is a corporation organized under the Act of Assembly of May 14, 1889, P. L. 211. Its charter is for an electric street railway leading, inter alia, from the borough of Warren to the village of Sheffield, a distance of about thirteen miles.
    2. The defendant has constructed and is now engaged in operating its road from the borough of Warren along the public highway to a point in Glade township, Warren county, at the north end of a bridge over the Allegheny river, and from the opposite side of said bridge to Sheffield in said county, the passengers having to transfer from the cars at the north end of said bridge and walk across said bridge to the cars at the south end of the bridge.
    3. The Western New York and Pennsylvania Railroad runs along the north side of the Allegheny river and crosses the public road leading to said bridge, near the north end thereof, which railroad is operated by the Pennsylvania Railroad Company.
    4. The highway from the borough of Warren, upon which the tracks of the defendant company are located, runs in an easterly course to a point opposite the said bridge and is known as the Warren and Ridgway turnpike, and from said point there is a public road leading across the said railroad tracks to the bridge and over said bridge across the river.
    5. By a proceeding in equity in the court of common pleas of Warren county, between the said Pennsylvania Railroad Company and the said Warren Street Railway Company, defendant, prior to the filing of the bill in this case, to wit: on September 21, 1906, a final decree was entered allowing an overhead crossing of the tracks of the said railroad company by the Warren Street Railway Company, at the point in question, to be at least twenty-two feet in height in the clear over the tracks of said railroad company.
    6: On November 16, 1906, and prior to the filing^ of the bill in this case, the township of Glade, by its supervisors, by written agreement granted to the said Warren Street Railway Company, defendant, the right to construct an elevated approach to the overhead crossing over the tracks of the said railroad and to cross with its tracks the line of said railroad company on an overhead bridge in said township of Glade. Said elevated approach to be built along the south side of the highway leading to the bridge.
    7. The defendant, the said Warren Street Railway Company, is the owner of a portion of the land and premises on the southern side of said highway, and prior to the filing of the bill in this case obtained a grant from the other owners along the south side of said highway, of the right to build its elevated approach along said highway to the overhead crossing.
    8. The property owned by the plaintiffs is located upon the opposite side of said highway, and none of the plaintiffs own any land on the southerly side of said highway abutting on the highway over which the proposed elevated approach to the crossing runs.
    9. Under the provisions of the act of assembly for the building of public roads under the direction of the state highway Department, a macadamized or Telford road has been built, commencing at a point iu the public road leading to the bridge across the Allegheny river and running to the Warren borough line. And all of the pedestals of the proposed elevated approach to the overhead crossing are located south and away from said macadamized road and from any portion of the public highway as now traveled. And for most of the distance there is a ditch between the side of the proposed elevated approach and the edge of the said macadamized roadway of some two feet along the greater portion of the distance, the pedestals for the support being about in line with the telegraph poles heretofore set along said road.
    10. We are not able to find from the evidence that the plaintiffs’ view will be obstructed to any appreciable extent, as the approach to the overhead crossing will be upon trestle-work constructed of iron, and in front of some of the plaintiffs’ premises it will be so low as not to interfere with the view complained of.
    11. A line of pedestals for the support of said approach extends into the highway about seven and one-half feet except the most easterly one, or nearest the bridge, which is about four and one-half feet, but no farther than is necessary in order to make the curve for ¡the overhead crossing and the bridge, the defendant having made its location as far to the southward on the south edge of the street, as it could be made, with a safe curvature, in reaching the overhead crossing within the limits of the public road where it crosses the steam railroad.
    The foregoing findings of fact lead to the following conclusions of law.
    1. As the plaintiffs’ property extends only to the center of the highway and as no part of it is taken and no additional servitude is added to it, and as defendant has the consent of the township supervisors and owners of all the land not owned by it on the opposite or southerly side of the highway, and as none of the plaintiffs will thereby be specially injured, they have no standing to prevent the erection of said elevated approach to the overhead crossing over the steam railroad tracks.
    2. The plaintiffs’ bill should be dismissed.

      Error assigned was the decree of the court.

      D. 1. Bally with him JD. U. Arird, for appellants.

      • W. E. Bice, with him W. D. Ilinckley and J. H. Alexander, for appellee.-
    May 20, 1907:
   Per Curiam,

The decree is affirmed on the findings of fact and law by the learned judge of the common pleas.


text:
    Emernecker’s Estate.

      Will — Destruction of will — Cutting off children.

    Where a woman executes a will in favor of a granddaughter, but subsequently destroys the paper as the result of groundless apprehension on her part that it would not be effectual unless it contained some provision in favor of her children, and at the same time declares her intention to make a similar will with a gift to her children of $1.00 each, but she died before such a will is made, a copy of the will destroyed cannot be probated.
    Argued March 29, 1907.
    Appeal, No. 104, Jan. T., 1907, by Ella Aaron, from decree of O. C. Phila. Co., Oct. T., 1905, No. 495, dismissing appeal from register of wills in Estate of Catherine Emernecker, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Penrose, J., filed an opinion in part as follows:
    The petition for appeal avers that the decedent died May 13, 1905 ; that on July 16, 1903, she executed a will giving .all her estate, real and personal, to her granddaughter, the petitioner, who, from the time she was thirteen years old, had lived with and given to her her wages and had aided in supporting her; that the decedent had often declared her intention to leave the whole of her estate to the petitioner because the money of the latter had gone into it; that the decedent was a “person of little education and very susceptible to the influence of her friends and neighbors and those with whom she constantly associated, and was so anxious to have her estate go to the petitioner that she constantly discussed her will ” after it had been so executed, with them; that “divers of them’believed tbe said will to be invalid and so stated to ” her “ because no provision was made therein for the devise or bequest to her children of at least the sum of one dollar each”; “that shortly before her .... death a friend and neighbor declared said will .... to be invalid because it did not so provide ” ; that “ influenced by such statement ” and her own belief to the same effect, she destroyed the will, “ declaring at the same time her intention to have another will drawn precisely of the same tenor as the said will .... adding thereto a clause leaving one dollar to each of her children, under the belief that her will would otherwise be of no validity and with no intention of revoking the gift of her estate to the petitioner.”
    It also avers that the decedent left children, Leopold Hutz, Wilhelmina Sherman, and Caroline Ellis, and grandchildren, William Albright, Caroline Mitchell, Mary ITowells, and Ella Aaron, formerly Albright, the petitioner, of whom Caroline Ellis and Caroline Mitchell desire that a copy of the will so destroyed should be admitted to probate — the application being also joined in by George P. J. Braun, the executor named therein. But that the register refused probate of the copy.
    The facts are, substantially, as averred in the petition. The testamenta^ capacity of the decedent was admitted, and it was also admitted that the will was duly executed, and that the copy offered was a true and pei’fect copy.
    When the will was drawn, the testatrix, an elderly German woman, was under the impression that the provision in favor of her granddaughter to the exclusion of her children and other grandchildren, would be invalid unless she gave a nominal amount, at least, to each of those so excluded; but upon the assurance of Mr. Braun, by whom it was drawn, that this was unnecessary, she executed it in the presence of two witnesses.
    Notwithstanding this she appears to have been uneasy on the subject, and, in April, 1905, about three weeks before her death, she had a conversation with Mrs. Seheidt, an old friend, who told her that the will was not good because of the omission of gifts to her children of at least $1.00.
    A week or ten days later, in a conversation with another friend, Mrs. Bolst, she spoke of her will with reference to what Mrs. Scheidt had said to her on the subject, and declared -that she would “ make another will so that nobody will be able to take anything from the property what she knows she wished to will to Ellie.” She then, in the presence of Mrs. Bolst, tore the will up and threw the pieces into the fire, saying to her that “ on the first fine day ” they (the decedent and Mrs. Bolst, who also wanted to have her own will drawn) would go to “ Ladner, to Eighth and Green,” to have him “ draw a new will,” in which she would give to each of her children $1.00, “ and for Ellie everything she had in her possession because she was working for her.”
    At this time the decedent appeared to be in perfect health, but when, about a week later, on Eriday morning, Mrs. Bolst called to go with her to Mr. Ladner’s, she found that she had been taken sick the previous night. She died the next day.

      Henry G. Terry, for appellant.

      J. Howard Morrison, with him Samuel Hides, for appellee.
    May 20, 1907 :
   Per Curiam,

This case affords an illustration that may almost be called pathetic, of the persistency of popular error. The notion that to disinherit the heir he must be cut off with a shilling ” (for the probable origin of which see Newlin’s Estate, 209 Pa. 456), started more than 300 years ago, never was the law either in England or Pennsylvania, and yet survives with such potency as to lead to results apparently as unjust as they were unintended.

The undisputed facts of this case do not admit of any question as to the legal result, however much we may be impressed that the testatrix’s act was induced by an erroneous belief as to the law. She intentionally destroyed the will, and declared she had done so with intent to mhke another. She knew what she was doing and the effect of it, and she did it animo revocandi, with intent to produce that effect. Her reasons were not matter of inquiry for the court. "Whether, if she had felt sure that the will already executed would accomplish what she wanted to do she would have changed it, we may speculate but we do not know. As was well said by the learned judge below, “ She was aware that, until this new will was executed, she was without any will at all, and the time of execution was left indefinite. Her friend ivas to call the “ first fine day ” to go with her to have it drawn. This was merely the expression of an unwritten intention to do something in the future, and no matter how fully her mind was then made up, there might be a change of intention at any time before it was permanently expressed in writing. And whether the intended provision for her children would be substantial or merely nominal cannot be known. A will giving even a dollar to each child would be a different will from the one destroyed, and the dollar so given could be demanded by the legatees.”

It seems to be a hard case, but there is no remedy without making the bad law which such cases are said to invite.

Decree affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Sharpless v. Boldt, Appellant.

      Party wall — Lateral support — Land incumbered with buildings — Negligence — Underpinning.
    The right of lateral support which is absolute for land in its natural state, extends no further than to the avoidance of negligence as to land incumbered with buildings.
    On a bill in equity to compel the removal of a portion of an underpinning wall encroaching on the property of plaintiff, it appeared that the defendant in building a large hotel building on premises adjoining the plaintiff’s property, did .not use the wall of the plaintiff, but built his wall twenty feet distant from it. He, however, excavated for his cellar in such a way as to require an underpinning of the party wall. The bureau of building inspection of the city directed this underpinning to be done, but gave no direction as to the location of the increased thickness. The defendant in doing the work extended the underpinning wall over plaintiff’s premises to an extent considerably in excess of ten inches. The evidence showed that the additional thickness of the wall on the plaintiff’s land was for the protection of such land, and that the increased thickness was of no advantage to the defendant as he did not use the wall, and had no necessity for such thickness. It also appeared that if the defendant had not built the wall, plaintiff would have been compelled to do so. There was evidence that the plaintiffs not only knew what was being done by the defendant, but tacitly, if not expressly, assented to it. Held, (1) that the building of the wall was a proper interpretation of the inspector’s order, and if it should be held that the order was beyond the inspector’s authority, the most that could be said of defendant’s action was that it was a technical trespass, done under supposed compulsion of law, clearly to the benefit of plaintiff, and that nominal damages would be the utmost for which a recovery could in any aspect be allowed; (2) that even in the aspect of trespass plaintiff was estopped under the evidence from claiming even nominal damages.

      Trusts and trustees — Committee of lunatic — Powers.
    A committee of a lunatic like any other trustee, is authorized within the limits of his trust to bind the cestui que trust by acts clearly for his benefit.
    Argued Jan. 15, 1907.
    Appeal, No. 97, Jan. T., 1906, by defendant, from decree, of C. P. No. 5, Phila. Co., March T., 1901, No. 1,355, on bill in equity in case of S. Frank Sharp-less and T. W ilson Sharpless, committee of the person and Estate of Samuel J. Sharpless, a lunatic, v. George C. Boldt, George A. Fuller Company, L. J. Ríendeau and A. IL Riendeau, doing business as L. J. Riendeau & Son, and George W. Hewitt and ¥m. D. Hewitt, trading as Hewitt & Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ. '
    Reversed.
    Bill in equity for an injunction.
    Davis, J., found the facts to be as follows :
    The lunatic’s estate and the defendant, George C. Boldt, are owners of adjoining lots of ground on the south side of Walnut, between Broad and Fifteenth streets, in the city of Philadelphia. On the ground of plaintiffs there is erected a three-story brick dwelling house, the easternmost wall of which is a party wall. On his own ground the defendant Boldt has erected a hotel building, extending to within thirty feet of the westernmost line of his lot, which is the easternment line of that of the plaintiff. In this area or space he has excavated, or is excavating, to the depth of thirty feet below the bottom of the foundation partj'’ wall on the line between the two properties. This party wall is eighteen inches in thickness, and immediately beneath it defendant has erected another wall which supports the party wall, of a thickness of not less than three feet at its base, and not less than two feet four inches at its top, extending north and south for at least fifty-six feet along the party wall. This underpinning wall extends westwardly at the top two feet beyond the easternmost line of plaintiffs’ lot, being one foot two inches beyond the limit prescribed and permitted by the Act of Assembly of May 1, 1855, P. L. 464, and increases in thickness as it progresses towards its base. The easternmost side or face-of the underpinning wall is vertical or plumb, and is located about four inches westward of the eastern vertical plane or surface of the present party wall, and with the exception of" about five inches the whole of the underpinning wall is constructed to the westward of the center of the party wall, and is of the average depth of about thirty feet.
    The contention of the plaintiff is, that this use of his soil by the defendant is a trespass, is improper and illegal, and that the underpinning wall should have been so constructed as to have adequately supported the present wall without encroaching unlawfully on- the adjoining property.
    The defendants, on the other hand, contend that the underpinning is not a party wall, but a support to plaintiff’s house ; that, admitting the old wall to be a party wall, it is not intended to use it, nor the underpinning wall nor the space thereunder; that the underpinning wall was erected in accordance with plans duly submitted to and approved by the ' bureau of building inspection, and a sufficient support for the old wall; that it was constructed for the benefit of the complainants under the provisions of the twenty-fourth section of the Act of June 5,1901, P. L. 469 ; and further, that the work was done with the consent of Mr. S. Frank Sharpless, one of the complainants, who could, by examination of the same, ascertain exactly the extent and nature of the underpinning.
    Under sec. 4 of the Act of May 5, 1899, P. L. 193, and the subsequent act of 1901, it is directed that in every case where such walls are defective, out of repair, or insufficient only for the purpose of the new building, the cost and expense of such repairs or removal, together with the expense of the new wall or walls to be erected in lieu thereof, shall be borne and paid exclusively by the parties erecting the new building, and by the Act of June 7, 1895, P. L. 135, see. 7, the owner or owners desiring to excavate to a greater depth than fifteen feet shall protect, and, if necessary, underpin the wall of any adjoining structure at his or their own expense.
    The wall built upon the dividing line between these two properties is admitted to be a party wall, erected on the line between two adjoining estates belonging to different persons, for the use of both estates.
    The court entered the following decree:
    And now, February 23, 1906, this cause coming on to be further heard at this term upon bill, answer, proofs and argument of counsel, upon consideration it is ordered, adjudged and decreed as follows:
    The defendants in underpinning the eastern stone foundation -wall of the dwelling house on property known as No. 1418 ~Walnut street, built and constructed thereunder a brick and cement wall much thicker than said stone foundation wall, Avhich brick and cement Avail is irregular in thickness, Avidening towards the bottom and which is located upon the said property at the top two feet and at the bottom three feet.
    Said wall, so far as it thus occupies the property of the plaintiffs to a greater extent than ten inches thereof in Avidth or thickness, is in violation of the legal rights of said plaintiffs, and must be removed.
    The defendants within three months from the date hereof, must remove so much of said underpinning wall as encroaches to a greater extent than ten inches upon the land of the plaintiffs, in such manner as will insure the safe and proper underpinning of said easternmost stone foundation wall.
    The defendants shall pay the costs.

      Error assigned Avas the decree of the court.

      E. Gordon MoOouch, with him Samuel Eielcson, for appellant.
    The ansAver was responsive to the bill: Logan v. Gardner, 136 Pa. 588; Heilman v. Ry. Co., 175 Pa. 188; Becker v. Lebanon, etc., Ry. Co., 188 Pa. 484; Eaton’s App., 66 Pa. 483; Eberly v. Groff, 21 Pa. 251; Cresson’s App., 91 Pa. 168.
    Although the defendants freely admit the general rule of law that the committee of a lunatic is but the bailiff of the court and that his unauthorized and unsanctioned acts cannot bind the lunatic, yet it is an equally well acknowledged rule of law that whatever a guardian does for the benefit of his ward binds the latter: Bowman’s App., 3 Watts, 369; Hume v. Hume, 3 Pa. 144; Wilson v. Goldstein, 152 Pa. 524.
    The rule that an owner is entitled to lateral support for his ground extends only for support to the ground in its original state: Richart v. Scott, 7 Watts, 460; McGettigan v. Potts, 149 Pa. 155; McGuire v. Grant, 25 N. J. L. 356; Ward v. Cowperthwait, 16 Legal Int. 85; May v. Prendergast, 12 Pa. C. C. Rep. 220; Bowers v. Supplee, 11 Phila. 223.

      Alex. Simpson, Jr., with him Ira Jewell Williams and Francis Shunh Brown, for George A. Fuller Company.

      John G. Johnson, with him I. H. Mirhál and E. Uunn, for appellee.
    As a question of equity pleading the defendant has no status.
    Nothing is to be inferred in estoppel, or in the pleading thereof.
    An estoppel to be relied on must be specifically pleaded in order to be available as a defense: Loving Co. v. Hesperian Cattle Co., 176 Mo. 330 (75 S. W. Repr. 1095); Metropolitan Life Ins. Co. v. Howle, 68 Ohio, 614 (68 N. E. Repr. 4); Read v. Citizens’ St. Ry. Co., 110 Tenn. 316 (75 S. W. Repr. 1056); Leschen & Sons Rope Co. v. Craig, 18 Colo. App. 353 (71 Pac. Repr. 885).
    If the defendants wish to claim a license they must show express consent. Knowledge and silence under the circumstances, all facts being known to both parties, are not enough. Permission should have been asked to build a Avail, and express authority obtained: Atlanta v. Gate City Gas Light Co., 71 Ga. 106; Kelso’s App., 102 Pa. 7; Schaidt v. Blaul, 5 Cent. Repr. 580.
    The doctrine of equitable- estoppel cannot be applied to a lunatic’s committee to the prejudice of his estate: Davison’s App.; 95 Pa. 394; Stivers v. Tucker, 126 Pa. 74; Paul v. Kunz, 188 Pa. 504; Thomas v. Bowman, 29 Ill. 426; Giddings v. Emerson, 24 Conn. 538; Andrews v. Lyons, 93 Mass. 349; Waters’s App., 35 Pa. 523; Orr v. Ins. Co., 114 Pa. 387.

      The erection by defendants of the underpinning wall, as shown by the plan, is altogether a trespass: Lukens v. Lasher, 10 Pa. Dist. Rep. 385; Milne’s App., 81 Pa. 54; Pile v. Pedrick, 167 Pa. 296; Western Nat. Bank’s App., 102 Pa. 171; Bell’s App. 81* Pa. 203.
    If the underpinning wall should remain as it is, then defendant and his grantees can use the whole superstructure that rests on it whenever they please.
    Mandatory injunctions may issue in trespass for which there is no legal remedy : Bispham’s Eq. sec. 400; Manchester, etc., Ry. Co. v. Worksop Board of Health, 23 Beav. 198; Eachus v. Moss, 14 Weekly Rep. 327; Coatesville & Downingtown St. Ry. Co. v. West Chester Ry. Co., 206 Pa. 40; Longwood Valley R. R. Co. v. Baker, 27 N. J. Eq. 166.
    May 27, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The east wall of complainants’ house, which is the subject of this litigation, is a party Avail, and is left as it Avas, presumably sufficient for the building. The defendant did not intend to make any use of it at all in his neiv building and has not done so. His oavii wall is twenty feet away and the excavation for his cellar is entirely on his own ground. Unless, therefore, his position and duty are altered by recent legislation which Avill be referred to later, he owed the wall no duty Avhatever except to dig his cellar without negligence. Whether it Avas dug ten inches or ten feet from the party line Avas no one’s concern but his oivn so long as he used due and proper care in the digging. The right of lateral support Avhich is absolute for land in its natural state extends no further than to the avoidance of negligence as to land incumbered Avith buildings.

On presenting his plan to the Bureau of Building Inspection, appellant Ai'as directed to underpin the party Avail, and to increase the thickness of the underpinning wall in proportion to the increased depth of his cellar excavation. No direction Avas given as to the location of the increased thickness, and appellant in complying with the order placed it inside the plaintiff’s line. This is the trespass complained of.

The authority of the inspecters to make such order is sought to be derived from section 24 of the Act of May 5, 1899, P. L. 193. That section provides that the necessary alteration, whether repair of the old wall or building of a new one shall be made according to the inspectors’ decision and “ In every case where such wall or walls are defective, out of repair, or insufficient for the purpose of the buildings there existing upon the adjoining premises and using the same, the cost or expense of such repair or removal, together with the expense of the new wall or walls to be erected in lieu thereof, shall be borne and paid by the owner of said building upon the adjoining premises and the party erecting the new building in proportion to the amount of such wall or walls which is or shall be respectively used by their said buildings; and in every case where such wall or walls are defective, out of repair, or insufficient only for the purpose of the new buildings, the cost and expense of such repair or removal, together with the expense of the new wall or walls to be erected in lieu thereof, shall then be borne and paid exclusively by the parties erecting the new building.”

Concisely'stated this section provides for two classes of cases, first, where the alteration is for the benefit of both parties owning and using the buildings of which the old wall is part; and, secondly, where it is only for the benefit of the owner of the new building. The present case does not come under either class. It does not appear in the case what was east of the east wall of plaintiffs’ house before the alterations began, but it is found as a fact that said wall was a party wall and there being no evidence to the contrary presumably it was and is sufficient for its .joint use as such. But class first of the section contemplates a continued joint use, and as defendant has not made any present or contemplated any future joint use of the wall, the case is not within that class. Nor on the other hand does it come within the second class, for the new buildings have no connection whatever -with the wall. If defendant had simply built at twenty feet east from the line it is manifest that the question of the party wall would not have arisen at all in any shape. The controversy arises not from the new buildings, but from the, excavation of the cellar to a depth below the old wall. As the statute does not cover that case, the previous law remains in force and defendant owed the plaintiff no duty but to dig his cellar with proper care and without negligence.

Party walls are creatures of statute. In principle they are provisions for taking one man’s property for the private use of another; which, in general, is beyond the legislative power even for police purposes. They rest, therefore, on long recognition and acquiescence amounting to a settled constitutional construction. But rights claimed under them must be sustained by clear statutory authority. Whatever authority, therefore, the Bureau of Building Inspection had was by virtue of its general police power to provide against danger to the parties or the public. It clearly had no authority to order the appellant to put the increased thickness of the underpinning wall on his own land, nor did it do so. No statute authorizes the adverse use of more than ten inches of the adjoining owner’s land, and the order of time in building is in this respect immaterial. If plaintiffs had built first in such way as to require the additional thickness of wall they must have put all but ten inches of it on their own land. But the additional thickness in this case was altogether for plaintiffs’ benefit, appellant not using the wall at all and having no necessity for such thickness. The building inspector in ordering suoh additional thickness of wall as he deemed proper for public safety did not specify on which land it should be located, and the appellant assumed that it was to be on plaintiffs’. As it was for plaintiffs’ benefit and appellant could not be compelled to put it on his own land he was entitled to assume that it was to be on plaintiffs’. In view of the doubtfulness of the inspector’s authority to make such an order at all, it would have been more prudent for appellant to have called on the inspector to execute it, or on plaintiff to permit it to be done. This appellant claims to have done as will be next considered.

The evidence is clear that the additional thickness of wall on plaintiffs’ land is no detriment at present but a protection that they would have to build themselves if appellant had not done it for them. Nor is it any interference for the future, as, like any other building put on another’s land, it has become his and he can do as he will with it at any time. The building of it by appellant on plaintiffs’ land was a proper interpretation of the inspector’s order, and if it should be held that the order was 'beyond the inspector’s authority, the most that can be said of appellant’s action would be that it was a technical trespass, done under supposed compulsion of law, clearly to the benefit of plaintiffs, and that nominal damages would be the utmost for which a recovery could in any aspect be allowed.

But even in the aspect of a trespass plaintiffs are not entitled under the evidence to damages, even nominal. The bill charged that defendant (a) in defiance of the building laws (b) secretly and unknown to the plaintiffs (c) committed a trespass. The answer set forth specifically (a) full compliance with the building laws, (b) knowledge and acquiescence by the plaintiffs in defendant’s action, (c) that there was no trespass. The answer was responsive and put on plaintiffs the burden of disproving it. This ivas not done. On the contrary, the weight of the evidence is clear that the plaintiffs not only must have known but did in fact know what was being done and tacitly if not expressly assented to it. Point is made that the plaintiffs being committee of a lunatic could not waive his rights. But plaintiffs, like any other trustees, are authorized within the limits of their trust to bind their cestui que trust by acts clearly for his benefit.

Decree reversed, injunction dissolved and bill dismissed with costs.


text:
    Dick v. Huidekoper.

      Appeals — Practice, C. P. — Findings of fact — Referee.
    On an appeal from an order disposing of exceptions to report of a referee, where the appellate court discovers that there has been no finding as to a material fact, the record will be remitted with direction that the court below recommit the case to the referee to make such finding subject to the review of»the court.
    Argued April 24,1906.
    Reargued Jan. 21,1907.
    Appeals, No. 283, Jan. T., 1905, and No. 2, Jan. T., 1906, by both plaintiff and defendant, from decree of C. P. Crawford Co., Nov. T., 1900, No. 1, disposing of exceptions to referee’s report in case of Samuel B. Dick v. Arthur C. Huidekoper.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.

      Exceptions to referee’s report.

      D. T. Watson, with him George F. Davenport, Alfred G. Church and Johns Me Cleave, for appellant.

      Samuel S. Mehard, with him John O. McClintoch and John E. Reynolds, for appellee.
    May 27, 1907:
   Per Curiam,

In this case we have not discovered error in connection with any question of fact or of law that was raised and passed upon below. On the material question of fact as to whether Dick advanced for Huidekoper in the nature of a loan, 3,000 shares of the capital stock of the Pittsburg, Shenango & Lake Erie Railroad Company in what is known as the Carnegie deal, there is no distinct finding, and the record is remitted with direction that the court recommit the case to the referee, that he may pass upon, subject to its review', this one question, on the evidence already taken before him; and, if there should be a finding that such stock was advanced for Huidekoper, in the nature of a loan, Dick is to be credited with the same, at its market value at the time of the trial before the referee, December 9, 1901, together with interest.


author: Me. Chief Justice Mitchell,

text:
    Melroy v. Kemmerer, Appellant.

      Accord and satisfaction — Payment—Consideration—Bankruptcy.
    Where a debtor in failing circumstances and contemplating bankruptcy offers his creditor thirty per cent, of the debt as a settlement in full, and the creditor dissuades him from going into bankruptcy, accepts his alternative offer, receives the money, and closes the account, the transaction is an accord and satisfaction, and the creditor cannot thereafter recover the balance.
    In such a case the accord is good because by it the creditor gets a sum certain instead of the chances of an uncertain dividend in bankruptcy; while on the other hand the debtor accepts the responsibility of paying a sum certain whether his assets are sufficient or not, and gives up his right to a release of his future assets, and to a discharge from his whole debt without regard to the sufficiency of his present assets.

      Argued Feb. 4, 1907.
    Appeal, No. 388, Jan. T., 1906, by defendant, from judgment of C. P. Lehigh Co., June T., 1906, No. 31, on verdict for plaintiff in case of Emma E. M. Melroy and Thomas B. Bachman, trading as Melroy & Bachman, v. Charles R. Kemmerer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Trexler, P. J.
    At the trial the defendant testified that on December 6, 1902, he had paid the plaintiff thirty per cent, of the amount claimed, and that this was a good accord and satisfaction of the whole claim, because at the time payment was made, plaintiffs had dissuaded him from going into bankruptcy.
    The court gave binding instructions for plaintiffs.
    Yerdict and judgment for plaintiffs for $2,217.32. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiffs.

      H. W. Sohantz, with him Evan Eolben, for appellant.—
    It is not disputed that Kemmerer was insolvent when the thirty per cent, agreement was made, and the insolvency of the debtor is sufficient to create an exception to the rule that acceptance of part of an amount due cannot affect the satisfaction of the whole debt: Engbretson v. Seiberling, 122 Iowa, 522 (98 N. W. Repr. 319); Gunn v. McAden, 37 N. Car. 79; Bull v. Bull, 43 Conn. 455.
    The defendant upon the agreement and payment by him of the thirty per cent, to the plaintiffs, took no further steps to obtain relief under the bankrupt law. The agreement under which this payment was made was upon a good and valuable consideration: Hinckley v. Arey, 27 Me. 362; Dawson v. Beall, 68 Ga. 328; Engbretson v. Seiberling, 122 Iowa, 522 (98 N. W. Repr. 319).
    If there be any benefit or even legal possibility of benefit to the creditor, it will render the consideration to support the agreement; Hearn v. Kiehl, 38 Pa. 147; Brockley v. Brockley, 122 Pa. 6; Hastings v. Lovejoy, 140 Mass. 261 (2 N. E. Repr. 776); Fowler v. Smith, 153 Pa. 639; Brenner v. Herr, 8 Pa. 106; Hendrick v. Thomas, 106 Pa. 327; Hartman v. Danner, 71 Pa. 36; Fidelity Trust Co. v. Carson, 28 Pa. Superior Ct. 118.

      Claude T. Reno, for appellee.
    In Hartman v. Danner,- 71 Pa. 36, it was held that the payment of part of a debt due, without release under seal, although received in full satisfaction, will not discharge the debt. See also Com. v. Cummins, 155 Pa. 30; Rehm v. Frank, 16 Pa. Superior Ct. 175; Mt. Holly Water Co. v. Mt. Holly Springs Boro., 10 Pa. Superior Ct. 162.
    May 27, 1907:
   Opinion by

Me. Chief Justice Mitchell,

It was said in Ebert v. Johns, 206 Pa. 395, that the rule that the acceptance of a smaller sum for a debt presently due though agreed and expressed to be payment in full, is not a good accord and satisfaction, was a deduction of scholastic logic and was always regarded as more logical than just, and hence any circumstance of variation is sufficient to take a case out of the rule. As illustrations of such circumstances of variation, it has been held that payment a day or even an hour before the debt is due, or at a different place, or of a certainty in amount where the amount of the debt is uncertain, or payment of even a part by a third person, or additional security of any kind such as the indorsement of a note by a third person, or payment in chattels or anything other than money, will be a good discharge of the whole by way of accord and satisfaction: Note to Cumber v. Wane, 1 Smith’s Lead. Cases, * 357; and see a full collection of the more recent cases in the note to Fuller v. Kemp, 138 N. Y. 231 in 20 Lawyers’ Rep. Annotated, 785.

The rule itself is founded on the want of consideration for the agreement. As a part can never be equal to the whole, payment of a part of a debt presently due gives the creditor nothing that he was not entitled to and deprives the debtor of nothing he was not bound to part with before, and therefore there is no consideration. The logic is unimpeachable, but it fails to take into consideration the practical importance of the difference between the right to a thing and the actual possession of it. As said in Ebert v. Johns, 206 Pa. 395, “ to a merchant with a note coming due, $5,000 before three o’clock to-day •which will save his commercial credit may well be worth more than $20,000 to-morrow after his note has gone to protest.” If the debt is not due till to-morrow the payment of the lesser sum under all the cases will be a good accord and satisfaction, but if the debt was due yesterday but the debtor can only pay part to-day the benefit to the creditor of getting that part now rather than the whole when it is too late, is just as great, and whatever conclusion the scholastic logic and theoretical reasoning may lead to, the importance of the practical result is a matter for the creditor to decide for himself, and having so decided and got the benefit of it, justice and common honesty ought to hold him to his agreement. For this reason, the force of .which is universally accepted, the courts so far as they could without sacrifice of the maxim of stare decisis, have brought the law into closer accord with modern business principles.

In the present case the debtor being in failing circumstances and contemplating bankruptcy, offered the plaintiffs thirty per cent of his debt as a settlement in full. The plaintiffs dissuaded him from going into bankruptcy, accepted his alternative offer, received the money, and closed the account. They have now brought this suit for the balance. In the absence of any express decision in this state on this point the learned judge below did not feel at liberty to depart from the general rule. We have no such hesitation. The exact point is. whether the debtor’s relinquishment of his intention to seek a discharge in bankruptcy and his payment of thirty per cent instead, constitute a sufficient consideration to bind the creditor to the agreement. On that point we have no doubt.

A valuable consideration may consist in some right, interest or benefit to one party, or some loss, detriment or responsibility resulting actually or potential^ to the other : Bouvier’s Law. Diet. “ If there is any advantage to the creditor the law will not weigh the adequacy of the consideration : ” Fowler v. Smith, 153 Pa. 639.

The accord in this case was good on both branches. By it the creditors got a sum certain, instead of the chances of an uncertain dividend in bankruptcy; on the other hand, the debtor accepted the responsibility of paying a sum certain whether his assets were sufficient or not, and gave up his right to a release of his future assets, and to a discharge from his whole debt without regard to the sufficiency of his present assets.

The decisions on this exact point in other states are not numerous, but the general trend is uniform to the result we have reached. In Hinckley v. Arey, 27 Me. 362, it was said by Tenney, J.: “In this case the plaintiff was informed that the defendant contemplated taking the benefit of the bankrupt act, which was then in force. If this intention had been carried out, the plaintiff would lose the whole debt, beyond what he might receive as a dividend; and the latter, judging from his letter, he did not consider as very valuable. To save himself from a greater loss under the law, he agreed upon the terms of composition offered. The defendant, upon the agreement and payment to Hubbard, took no further steps to obtain relief under the bankrupt law.” It was accordingly held that the accord and satisfaction were good. The same ruling was made in Dawson v. Beall, 68 Ga. 328. And in Curtiss v. Martin, 20 Ill. 557 (578); Engbretson v. Seiberling, 122 Iowa, 522 and Rice v. London, etc., Mortgage Co., 70 Minn. 77, the courts went still farther and held the satisfaction valid where the debtor was insolvent or in failing circumstances though there was no express intention to seek a discharge in bankruptcy. In the last named case it was held that an agreement on behalf of the estate of a debtor supposed to he insolvent was good though it turned out in fact that it was solvent. And in Pettigrew Co. v. Harmon, 45 Ark. 290, the-principle that part payment by a third person makes the accord valid was held to govern where the third person was one to whom the debtor had assigned his assets for the payment of his debts.

On principle and on authority, therefore, the agreement in the present case was binding^ and there being no dispute on the material facts the defendant’s sixth point asking for binding instructions should have been affirmed.

Judgment reversed.