text:
    Cope versus Risk.
    1. Where a suit before a justice of the peace or alderman is terminated by any act or agreement of the parties which amounts to a discontinuance, it is his duty to enter such act or agreement on his docket, and the docket is evidence of the same; at least an acquiescence for thirty-nine years in the termination of the suit removes all doubt as to its admissibility.
    2. An award or report of the survey of a boundary line, after proof of the handwriting of the agents appointed to make it, coupled with the evidence that it was made in 1812 in the presence of the parties, and the testimony tending to show an acquiescence in the line so established or ascertained, was also admissible in evidence in an ej ectment brought in 1848. Its effect was for the j ury.
    This case was brought up from the Nisi Prius.
    It was an action of ejectment to July Term, 1848, by Nancy K. Risk v. Edwin R. Cope and Jacob J. Cope, for about 116 perches of land, being a strip óf land to the west of Gunner’s run.
    Plaintiff brought ejectment for a strip of land, containing about 116. perches, to the west of Gunner’s run, described in the plan as being bounded on the west by dotted lines, on the south and east by the creek, and on the north by the Erankford road. The land claimed was described in the writ and narr. as follows, viz.: “ A tract of land situate in the township of Northern Liberties, in the county of Philadelphia, containing 116 perches, or thereabouts; hounded by other lands of her the said Nancy K. Risk, by lands of him the said Edwin R. Cope, and by the Erankford turnpike road.”
    On the trial, plaintiff showed title under deed dated 19th September, 1752, from the sheriff to Standish Eord, and in which the western line of the land conveyed is said to commence at a corner near a Spanish oak sapling (called Ball’s corner in the annexed plan), thence N. 6° E. 137 perches by Rawle’s land to a post in Gunner’s run (marked in the plan by a star on the north-west line of the railroad), thence, up the said run according to the several courses thereof to a post on the south-east side of the aforesaid road, and thence along the side of the same road 60J perches to the place of beginning.
    The description in the levy and sheriff’s deed followed the description of the property in the prior deeds under which plaintiff claimed.
    No other deeds or muniments of title were offered in evidence by plaintiff, describing her land, otherwise than as above.
    It was contended on the part of the plaintiff, on the trial, that the course of the creek or run had changed;' and that in 1812, there being a dispute about the line, Kennedy and Steinjiauer, being then the owners of the adjoining lands now owned by plaintiff and defendant respectively, made an agreement by which they agreed that certain parties should run the line between them, and that this was accordingly done by the referees, who determined the boundary according to the dotted line.
    It was stated on the part of the defendants in the suit, that upon the question of the alleged change in the course or bed of the creek, and of the possession of the parties respectively, there was conflicting evidence.
    With regard to the settlement or agreement, the plain tiff’s counsel having proved the docket of Alderman Wolbert, deceased, and the signatures of the alderman and of Reading Howell and John Huston, offered in evidence the docket entries of a suit of Kennedy v. Steinhauer; and also a paper containing an award made by Howell and Huston, with what purported to be a copy of the alderman’s docket appended thereto, which paper was after-wards recorded.
    On the docket entry it was stated to be a demand “ for damages not exceeding fifty dollars, done his personal estate.”
    The record was as follows:
    “ Paper called the Award.”

    Anthony Kennedy 1 «• . > George W. Steinhauer. )

    We the undersigned, surveyors, after examining their respective „ deeds, and running and comparing sundry lines, have fixed the marble stone in Ball’s line for their corner, thence by a right line N. 2° E. marked by another marble stone, planted near Gunner’s run, and ending at a mark made in the south wingwall of the bridge, with a stone set by the parties corresponding with the said mark, which line thus designated we do hereby fix and establish between the lands of the parties named as above.
    Witness our hands, this 18th day of April, 1812.
    Reading Howell. John Huston.
    Anthony^Kennedy George W. Steinhauer. j

    Action for damages not exceeding 50 ^°^ais*
    Jan. 21, 1812. The parties agree that Reading Howell and John Huston shall run and mark a line between the land belonging to the parties, and make report thereof.
    Given under my hand, Feed. Wolbert, J. Peace.
    Anthony Kennedy ) /-< xxr • i Í George W. Steinhauer. )

    Action of damages for trespass not exceeding 50 dollars. °

    Jan. 21, 1812. And now the parties agree that James Pierson and Reading Howell shall run and mark the line between the lands of the parties in dispute. If the present line run by Mr. Brooks is found correct, then Mr. Kennedy is to pay all expenses; if not, the expenses of survey to be equally borne.
    Afterwards, by consent, John Huston substituted in place of James Pierson.
    A true copy. June 1st, 1812.
    Fred. Wolbert, J. Peace.
    Recorded in the office for recording deeds, &c., for the city and county of Philadelphia, in Deed Book J. C., No. 18, page 732, &c.
    Witness my hand and seal of office, this 1st June, 1812.
    James Carson, Recorder.
    These papers were severally objected to as offered, but they were all admitted in evidence as offered and exceptions taken, and they were then read.
    Reading Howell and John Huston, who had been surveyors, were dead at the time of the trial.
    The plaintiff’s counsel also offered in evidence, the memorandum on the margin of the alderman’s docket, “ for the purpose of proving payment by Steinhauer and his approbation of the survey.” To the reading of this defendant’s counsel objected, but the objection was overruled and the memorandum was read.
    On the part of the plaintiff, Peter Wirt gave some testimony as to a change in the course of the creek. He further testified that in 1809-10 and 1814, he lived on Steinhauer’s land: that in 1808 or 1809, Anthony Kennedy came to reside there. That there had been a dispute between Kennedy and Steinhauer. There had been a survey by one Broolcs, but it did not please Kennedy. The witness said, “I was present when a new survey was made. Steinhauer and Kennedy were present. There had been a suit when the witness left in the fall. The surveyors were John Huston and Reading Howell, city and county surveyors. He stated that they started at a stump at Ball’s corner, that they fixed three stones, one at Ball’s corner, one near the creek, and one near the lower wingwall of the bridge; there was a line stone dug yesterday, that was the stone: there was a crow foot marked on the barge board of the wing of the bridge, &c. He further said there was a fence, put up four or five weeks afterwards. Kennedy began it immediately.
    H. Hains, a surveyor, said he made a survey of the Risk place in 1848, and was furnished with an old draught of the division of the Steinhauer property, upon which the stone at Ball’s corner was marked. That he “ took the stone at Ball’s corner” and ran a line.

      Another witness said he remembered seeing Howell and Huston at the bridge in 1812. That he did not see them fix the stone, but had seen the stone and the mark on the bridge, &c. ■
    On the part of the defendants, inter alia, testimony was given by several persons who had lived in the neighborhood, that they did not know of the survey by Howell and Huston.
    On the part of the defendants it was alleged that beyond the production of the papers before referred to, no evidence was offered to show that Steinhauer ever agreed to submit to, or abide by the survey of Howell and Huston. That evidence was offered to show that Steinhauer was present when Huston and Howell made a survey ; but as to this, evidence in contradiction was offered by defendants. That no evidence was offered to show that the defendant, who was a bond fide purchaser, claiming under Steinhauer, had any notice whatever, either of the survey or of the settlement or award. That the title deeds under which the parties severally claimed, called for the creek at the Frankford road as the dividing point, and no evidence whatever was offered to show notice to defendant that by an agreement or reference between the previous owners of the property, made in 1812, a point on the road, 57 feet south-west of the creek, was to be considered as the dividing point. That much contradictory evidence was given as to the possession of the disputed strip after the alleged survey in 1812; but it was in evidence that at least at the time of defendant’s purchase, his grantor was in the possession of the premises in dispute.
    It was further stated that no evidence other than the marginal memorandum on the alderman’s docket, was given to show that Steinhauer had ever paid for any portion of the expenses of survey. The marginal memorandum contains some figures and names, and then proceeds in these words. “ Bill of survey, $13.25. June 2, 1812. Rd. of Mr. Steinhauer, $6.62J.” No other evidence was offered to show that Steinhauer either paid the money or that he had any knowledge of such entry being on the docket.
    The following points were submitted to the Court:

      First. The plaintiff must be held to a stricter proof of possession, from the fact that she claims in opposition to her deeds which call for the creek as the boundary; and from the further fact that she crosses the natural boundary, viz., the creek, in order to assert her claim.

      Second. That even if the jury should be of opinion that a certain line was established in 1812, still, if they believe that the defendant and those under whom he claims, have held possession of the premisés for twenty-one years since that time, their verdict must be for defendant.

      Third. That even if the jury are of the opinion that the course of the creek was partially changed by the building of the stone bridge, and thus was gradually extended by the action of the current, freshets, &c., the alteration is the gain or loss of the owners on the different sides, and the creek must still remain the boundary.

      Fourth. That the words “ near the creek,” in the deed to Steinhauer, calling for “ a stake near the creek” as a boundary, are not to be construed to imply that there was a space between the post or stake and the creek, but merely as indicating the whereabouts of the stake; and that it is not inconsistent with said deed to construe it as referring to a stake close on the banks of the creek, and to the creek as a boundary.
    Bell, Justice, charged the jury. — This is an action of ejectment for 116 perches of land lying along Gunner’s run. The plaintiff must recover upon the strength of her own title. She is not permitted to rely on the weakness of her adversary’s title; still she may look to the muniments of title produced by defendant for the purpose of strengthening the ground on which she bases her claim. The plaintiff bases herself on two grounds which admit of being separately considered. One of these is a question of fact for your determination. The other, a mixed question of law and fact.
    The plaintiff’s title began 1690, being a patent to R. Turner for 462 acres. It runs down to 1828, being the will from Anthony Kennedy to Nancy K. Risk. All these call for Gunner’s run as the easterly boundary of the tract owned by plaintiff. One of the intermediate conveyances is dated 1752; this gives the following boundaries: *****. Erom this all the subsequent descriptions are copied, including conveyance to Anthony Kennedy, in 1807. This practice is very usual, indeed universal, when there is no new survey.
    This may account for the run being called for in this last deed, although, as is asserted, the dispute originated in a change in, the course of the stream so far back as 1792 or 1793. Next previous deed is in 1784, Ann Ford to Andrew Caldwell. I think, therefore, no ai'gument against this assertion can be legitimately drawn from this description. But as the deeds all call for the stream as a boundary, it must be taken to be so, unless the plaintiff has satisfied you there was a change in the locality of that stream. The stream is a ‘ natural boundary, and consequently more to be depended on than merely magnetic courses, which is the weakest evidence in cases of this nature. Looking to this part of this case alone, I repeat, the plaintiff is bound prima facie. The onus of showing why she should not be so lies on her. But was the course of that stream changed ? This is the first question. If any change took place, it was by the act of the public authorities, and not a natural and gradual change. It does not, therefore, come within the principle invoked by the defendant, which gives the accretion to the owner of the fortunate side, should it deprive the other of it.

      As to the question of change, testimony given hy several witnesses was referred to.
    But the second point is the alleged award made in 1812. This is not binding as a record; but a dispute of this nature may be definitely settled by an agreement of parties, or by referees appointed by them for that purpose. Did the parties agree to refer ? The entry on the magistrate’s docket — this, of itself, would be insufficient. It was a subject not within his jurisdiction, and therefore his entry of the agreement of the parties proves nothing. But its truth may be established by attendant circumstances, as, 1. The survey by Ihe very persons named on the docket. 2. In the presence of the parties proved by Wirt and Woolman. 3. The planting of stones, remaining for years. 4. The corresponding fence and possession for course of years. 5. The payment of the cost by Mr. Steinhauer.
    I am asked to Say to you that, notwithstanding this, if the defendant and those under whom he claims, have held possession of the premises for 21 years since that time, the verdict must be for defendant. But possession, to have this effect, must be exclusive, hostile, notorious, and uninterrupted for twenty-one years: a scrambling or mixed possession will not do. Looking to the whole testimony, I confess I see no proof of such possession on the part of the defendant and those he claims under as will satisfy the condition. The fence was not removed, according to witnesses, until 1830, or ’32. But should you be of opinion that there was no agreement to refer, then a question may be, how much of the land in dispute was included in the change of the water of the creek ? The plaintiff is entitled to recover only this, unless you should think she has held adversely for twenty-one years up to the straight line. To establish a possession against the natural boundary of the creek, the proof of it ought to be clear and distinct. This is all I deem necessary to say in reply to point first.
    To which charge defendant’s counsel excepted.
    Eebruary 3, 1851, verdict “ for plaintiff, for six cents costs, and six cents damages.”
    A rule to show cause why the verdict should not be set aside and a new trial granted, was discharged, without prejudice, to afford an opportunity of considering the questions involved in banc.
    It was assigned for error — ■

      First. The judge erred in admitting in evidence the docket of Alderman Wolbert, containing entry of suit, Kennedy v. Steinhauer.

      Second. In admitting in evidence the memorandum on Alderman Wolbert’s docket, of receipt from Steinhauer, of $6.62, costs, &c.

      Third. In admitting in evidence the paper purporting to be an award, or survey, made by Reading Howell and John Huston, and copy of record from Alderman Wolbert’s docket.

      Fourth. In charging the jury that there was no proof of such adverse possession on the part of the defendants, and those under whom they claimed, as the law required.

      Fifth. The verdict is uncertain.

      Robb and O. Fallon, for plaintiff in error.
    — It was said, that the docket entry of the alderman showed that the action was brought to recover $50 for damages done to the plaintiff’s “personal estate.” It was stated, that in no case would a docket entry of an alderman stating that the parties had agreed to any matter in relation to their land, be evidence, per se, on the mere proof of the authenticity of the docket: but much less where it appeared to be made in a case relating to damage done to personal estate. That the record of a court will not be received to prove a fact into which the Court had no jurisdiction to inquire: Spencer N. J. Rep. 77, Gordon v. Williamson; 1 Dal. 135; 6 Bin. 34; 1 Peters 36; 10 Barr 488; also cited, 1 Hals. 211.
    The award was not admissible. It was not valid either under Act of Assembly, or at common law: 2 Ser. & R. 489. No evidence was given to show agreement to it by the parties interested. It was not a paper entitled to be recorded: 2 Bin. 44; 5 Barr 149.

      Williams and McMurtrie, for the defendant in error.
    — It was said that the only question raised before the jury, was where the boundary line ran; and the only question raised here, is the admissibility of the documents under the evidence. The plaintiff’s last deed was in 1807, and the possession had been such as usual where the disputed territory is a thicket on a marsh. Confessedly some sort of fence was kept up on the line we claimed, and there was the stone which we proved had been set there by the surveyors.
    There was evidence, that in 1812 there was a dispute about this very line, and a suit before this justice. That the docket was genuine was proved, and is not disputed. That Reading Howell and John Huston, who were then surveyors (now dead), did make a survey in the presence of both parties, and set the corner stone, which the jury saw. The award was their written declaration of what they had done at the instance of the parties, in relation to a boundary line.
    The docket was at least corroborative, or as showing the claim of authority under which the acts were done. The weight or influence of the evidence is not raised on the record.
    As to the award: declarations of a deceased surveyor are admissible : 10 Wend. 104. There being proof of the agency aliunde, the paper proved itself after thirty years: 1 Ghreenleaf Ev. § 154.
    It was a declaration as to where a boundary line was made by surveyors who ascertained it in presence of the claimants: 6 Bin. 62-4: 2 Ser. & R. 72-3: 11 Ser. R. 315.
    3. It was corroborative of the testimony that the stone was set, and that the crow-mark on the bridge was made as alleged: 2 Rawle 70-2. It was further proved that the stone was one used to mark boundaries. 4. It was an ancient document (thirty-eight years old at the trial), coming from a party shown to have been in possession long after, and until within twenty-one years. It was produced by the plaintiff a copy was endorsed on one of the deeds, and it had been put on record: -4 W. & Ser. 393; 4 Id. 378. A deed in such a case need not be proved: 10 Ser. & R. 197. It was also contended that it was an award in a judicial proceeding.

      2. As to the docket, was cited 2 Rawle 9; 10 Barr 160. It was in a judicial proceeding. The trespass to the personalty might depend on the boundary line. That the docket was admissible, even though the magistrate exceeded his jurisdiction,-was cited 1 Ser. & R. 28; 10 Watts 102; 7 W. & Ser. 470.
   The opinion of the Court was delivered by

Lewis, J.

— Where a suit before a justice of the peace is terminated by any act or agreement of the parties which amounts, directly or indirectly, to a discontinuance of the action, it is part of the official duty of the justice to enter such act or agreement upon his docket, and the docket entry is evidence of the same. An acquiescence in the termination of the suit, so entered, for thirty-nine years, removes all doubt, if any before existed, respecting the propriety of admitting such evidence. The agreement of the 21st January, 1812, by which the parties appointed certain persons to survey and mark the line between them, with the provison therein contained respecting the expense, and the entry on the docket of the payment of a part of the expense by one of the parties, on the 7th May, 1812, with the acquiescence which followed, was a discontinuance of the action, and was properly admitted in evidence, as tending to prove the facts therein stated.

The award, or report of the survey, after proof of the handwriting of the agents thus appointed to make it, aided with the evidence that it was made in 1812, in the presence of the parties, and the testimony tending to show an acquiescence in the line so established or ascertained, was also properly admitted in evidence. Its effect was for the consideration of the jury.

We do not see sufficient evidence upon the paper-book to warrant us in saying that the Court was in error in charging that “ there was no prbof of such adverse possession on the part of the defendants and those under whom they claimed, as the law required.”

We see no error in the record, and the judgment is therefore to he affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Leech versus Leech.
    1. Where objections are made before the Register to the probate of a will on the ground that the writing was procured by improper influence, and that the alleged testator was not of disposing mind and memory, and in the precept to the Common Pleas directing the issue such objections alone are stated, and in neither the pleadings, the bills of exceptions to evidence, nor the points submitted, is it shown that the case was put to the jury upon the ground of a subsequent will inconsistent with the one in issue and amounting to a revocation of it, it is too late to raise that question in the Court of revision.
    2. It is not a subject of error that the Court, in answering points affirmatively, accompanied the answers with observations which impaired the effect of the answers, where the instructions taken together were proper, and where the observations of the Court were advisable in order to prevent the jury from being led into error by mere affirmative answers.
    Error to the Common Pleas of Philadelphia county.

    This was an issue directed by the Common Pleas of Philadelphia, in pursuance of a precept from the Register of that county, to try the validity of the will of Charles Leech. In the issue, Charles Leech, the son and sole devisee of the alleged testator, was the plaintiff, and Samuel S. Leech, a brother of the said decedent, was the defendant. The will in question was dated on the 20th August, 1849. In the same it was declared that the testator made the same as his last will and testament, declaring all others, if any, to be void and of no effect, and it was added, that, “ In consequence of the affectionate, feelings I entertain for Charles Leech” * * * “I give and devise to him all my estate, real, personal, or mixed,” and Charles Leech was appointed sole executor.
    The testator died in April, 1851, being above eighty-three years of age, and leaving his said son and several brothers and sisters.
    The probate of the writing was objected to by Samuel S. Leech, on the ground that it had been procured by improper influence, and that at the time of its being made the alleged testator was not of disposing mind and memory. An issue was requested, and a precept was accordingly issued to the Common Pleas to direct one.
    On the part of Samuel S. Leech, the plaintiff in error, it was alleged that the habits of life of the testator, who had never been married, had been eccentric — and that for a few years before his death, his conduct evinced derangement and imbecility of mind; and it was alleged that when the will in question was made, he was incapable of making a will. He left considerable real estate, but no personal property. It was said that he had executed three wills — by the first one, said to have been executed in the summer of 1849, he had devised all his property to one Israel S. Elliott. The second was the will in question. The third was said to be a reiteration or copy of the provisions of the first one. It was testified by Elliott that it was from three weeks to a month after the first will that it was copied. It was testified by the counsel who wrote it that it must have been written after the commencement of September.

    The person who drew the last will said he thought that the testator, at the time it was drawn, was incompetent to make a will — • that he thought it might be drawn to humor him. He said that he had not seen that will since.
    On the trial, the defendant’s counsel proposed points as follows:
    1st. It .is not material whether mental imbecility arises from insanity, old age, or bodily infirmity; if the testator’s mind is shown to be in a condition not to manage his own affairs or know what he was doing, his will is invalid.
    2d. That eccentric habits, extreme old age, inconsistent and unaccountable actions, great defect in memory, and mental aberration and delusion, are evidences of such mental imbecility.
    Sd. That partial derangement of the mind, or an insane delusion as to a particular heir or person, whereby the testator was induced. to exclude him from his will, though sane in other respects, renders the will invalid.
    4th. That where a person is shown to be subject to fits of mental derangement, the burthen of proof is on the plaintiff (in this issue) to show that his will was made during an interval when the mind was sane, and to prove such sanity.
    5th. When the evidence discloses a state of facts showing undue influence over the testator’s mind, the jury may take this into consideration as well as imbecility, for they must decide upon all the facts of the case.
    King, President Judge, in his charge, inter alia, said:
    There are few subjects coming before Courts of law, that ought to be better understood by the general community, than what is meant in our Courts by the phrase “testamentary capacity.” And yet there are none in which the public are more in error. The prevalent idea is, that in order to constitute “ testamentary capacity, ” the intellect of a testator should be in its most perfect state of integrity, and possess all its original force and vigor.
    This, however, is an erroneous view of the subject. If such were the requirements of the law, few wills would stand a test so severe. A superstitious dread of executing such instruments, a timid fear that such execution may be the immediate precursor of death, leads to postponements and delay. And it continually happens that the final disposition of a man’s estate, by his last will, is the last business act of his life. One who is enfeebled and exhausted by the pains and sufferings of a mortal disease, and whose mind is agitated by the hopes and fears of eternity, can hardly be said to have his intellect in a perfect state of integrity. And yet a large portion of wills are made under such circumstances, and are every day sustained in Courts of justice. (A disposing mind and memory, in the view of the law, is one in which the testator is shown to have had, at the making and execution of a last will, a full and intelligent consciousness of the nature and effect of the act' he was engaged in; a full knowledge of the property he possessed; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty.) The wills of the aged and infirm are alike good, although, when compared with their condition in the vigor of life, the minds of such testators may seem relatively enfeebled; provided they are shown, at the making and execution of such wills, to possess such disposing minds as I have just defined to you.
    Even the will of a maniac is good, provided it has been made during a lucid interval; during a time in which his mind has been restored to healthy though temporary action. The party, however, setting up such a case, must establish clearly the existence of the lucid interval during which it has been made. For general testamentary incapacity, once shown, is presumed to continue until the fact of temporary capacity is established by convincing proofs.
    Testamentary incapacity does not necessarily suppose the existence of insanity, properly so called. Weakness of intellect, from extreme age, from great bodily infirmity, or from intemperance, to the extent of disqualifying a testator from knowing and appreciating the nature, effect, and consequences of the act he is engaged in, is as much testamentary incapacity as raving madness. (If from any cause an alleged testator is so enfeebled in mind as to be incapable of knowing the property he possesses; of appreciating the effect of any disposition made by him of it; and of distinctly understanding to whom he intends to bequeath it; he is without the testamentary capacity required to make a valid will.) * * *
    Although incidentally other grounds for impeaching this will have been brought in view, yet the brief question for your decision is the testamentary capacity of the testator, not before, nor after, but at the actual time of its execution.
    He referred the facts to the jury, to be applied to the principles expounded by the Court. He further said that it had been contended that if the jury should by their verdict find that the testator possessed adequate testamentary capacity at the time of executing the will in issue, this would give validity and effect to the will in favor of Elliott, which it had been stated had been copied from the first will, and which it was contended was executed after the will in question. He said that the said last written will had not been produced, and whatever may be the legal effect of a finding in favor of the will in question in the issue upon the alleged last will in favor of Elliott, that such effect was not a question before the Court.
    Verdict was rendered for the plaintiff in the issue.

      It was assigned for error, that the judge erred: 1st. In taking from the jury the question whether the last will did not revoke the prior will in question, and in. treating that question as not under consideration.
    2d. In his instructions to the jury as to the standard of mental capacity required to make a will.
    8d. Because, in affirming the points presented, he accompanied them with observations which impaired their effect.

      Horn and Hirst, for plaintiff in error.
    It was said that the subsequent will proved to have been executed was inconsistent with the will in question. That, though not effective as a will, until produced for probate, yet for the purpose of having a revocation of the will in question, or as showing such an intention on the part of a testator, it was sufficient: 5 Term Rep. 124; 7 Vesey 348; 7 John. Ch. 258; 1 Howard’s Miss. Rep. 336; 1 Pick. 535, 543; 1 Bay. 464 ; 2 Harris 152; 8 W. & Ser. 275; 2 Yeates 170; 4 Ser. & R. 295, 567.
    ,2. As to the question of mental capacity, it was alleged that, according to the opinion of the Court, it was made to depend on the questions of fact stated by the judge; whereas it properly depended on all the circumstances of the case. On the subject of mental capacity, and the rule in regard to wills, reference was made to 1 Cox Ch. Rep. 353, 356; 2 Hag. Ec. Rep. 122; Moore’s Rep. 759; Shelford on Lunatics 275; Worthington on Wills 28; 8 Watts 70; 2 Harris 149; 1 Jarman on Wills 28.
    As to the 3d assignment, reference was made to the case of McTaggart v. Thompson, 2 Harris 155.

      Longhead, with whom was Mench, for defendant in error.
    — It was remarked, as to the paper called the third will, that the attorney applied to was directed to copy the first will, which he did, and that the copy was executed. It was suggested that being merely a copy of the first will, the one in dispute was the last will. It was said that no question, as to the will in dispute being the last paper executed, was raised by the defendant in the issue, either before the Register or the Court below. That it was not. suggested in the opening to the jury, nor- till the senior counsel for the defendant below was making his last address to the jury. It was alleged that a mistake existed as to the time when the copy of the will was made, and that the time of its execution could have been shown had it beén raised on the trial. It was not mentioned in the 'points submitted. The will alleged hy the defendant in the issue to be the last one should have been submitted to the Register, or its suppression by fraud or its destruction alleged, and the Register should then have admitted the last one to probate, or directed an issue to determine which was the
      last will. The party is bound by Ms allegation before the Register: 13th section of the Act of 15th March, 1832, relating to Registers and Registers’ Courts. The precept in this case for the issue states the allegations and facts to be tried, viz.: “ That the said writing was procured by improper influence, and when the testator was not of disposing mind and memory.” 4 Yeates 175; 7 Barr 458. The proof of a subsequent will lay upon the party alleging its execution: 8 W. & Ser. 295; 4 Yeates 345; 6 Barr 409; 9 Id. 151.
    It was alleged that the will copied was, at the time of the trial, in the possession of Elliott, who was a witness on the part of the defendant; and if it were designed to raise the issue as to it, it should have been produced: Jones v. Murphy, 8 W. & Ser. 295, before cited.
    As to what will amount to a revocation of a will, reference was made to 10 Barr 82, Flintham v. Bradford.
    As to the charge, it was observed that the facts were submitted to the jury.
    .As to the question of capacity: it was sufficient if, in the making of his will, the testator understands what he is doing, and that the soundness of his mind is to be judged of from his conversation or actions at the time the will is made. Reference was made to 4 Wash. C. C. Rep. 262; 3 Id. 586; 9 Barr 163; 1 Green Ch. 82; 2 Id. 563 ; Notes to Jarman on Wills 27, 29; Reed’s Will, 2 B. Munroe 79; 9 Oonn. 102; 3 Knapp’s Cases 122; 26 Wend. 225; 2 B. Munroe 74; 8 Conn. 254; 5 John. Ch. 158; 1 Green 9; 1 Paige 171; 8 Mass. 371; 3 Bag. Ecc. R. 527; 1 Yeates 108; 10 Ser. & R. 84; 8 Watts 70.
    In the general charge the points submitted were fairly answered; and in addition, the points were read and affirmed.
   The opinion of the Court was delivered by-

Lewis, J.

— Where objections are made before the register to the probate of a will, on the ground that the writing was procured by improper influence, and where the alleged testator was not of disposing mind and memory, and the precept to the Common Pleas directing an issue sets forth these objections alone, and neither the pleadings, the bills of exceptions to evidence, nor the points presented to the Court show that the cause was put to the jury upon the ground of a subsequent will, inconsistent with the first and amounting to a revocation of it, it is too late to raise .that question in the Court of revision. In the case before us, the alleged subsequent will was not produced, nor was any evidence given of its loss or destruction, for the purpose of introducing secondary evidence of its previous existence and of its contents. The evidence given in relation to it does not establish its legal execution, nor do we understand from the case, as presented to us upon the paper-book, that the evidence was given for any such purpose; on the contrary, the loose and unsatisfactory statements on the subject may well have been given for the purpose of bearing upon the question of unsoundness of mind, and undue influence. Under such circumstances it would be unfair to the parties, as well as to the Court below, to reverse, because that Court confined the investigation of the jury to the questions upon which the parties themselves had rested their case.

The Court below answered affirmatively all the points presented by the plaintiff in error. There is therefore nothing to complain of in this respect. But it is assigned for error that the learned Judge “ accompanied his answers with observations which impaired their effect.” This may be so; but on a careful examination of the observations contained in the charge, we are satisfied that his instructions were correct, and that he committed no error in regard to the “ standard of mental capacity required to make a will.” An affirmative answer to the points put by counsel, without the necessary explanatory observations, would frequently produce an effect which would lead the jury into error. A judge is acting in the line of his duties when he accompanies his answers with such observations as are necessary to guard the jury against such a result. There are many cases in which affirmative answers to the points put by counsel, although strictly correct as far as they go, would produce an improper effect. It is just that this “effect” should be “impaired” by pertinent “observations” from the judge. If a party may have the benefit of instructions given in his own language, upon all the points which he chooses to present, and may preclude the judge from making any accompanying observations, it is not likely that impartial or ample instructions would be given, or that even-handed justice would be administered.

Judgment affirmed.


author: Black, C. J.

text:
    Rush versus Lewis.
    A testator devised certain real estate to his executors, in trust to pay the rents and profits to his daughter for her separate use during her life, and after her death for the use of such persons as she might appoint by will, and in default of such appointment to and for the use of her children in fee. The daughter executed the power of appointment by devising the estate in certain designated proportions to her husband and her only son respectively in fee, with an executory devise over of the son's share in case he should die under the age of twenty-one:
    It was Held that the legal estate vested in the appointees of the wife, and therefore a demurrer to a bill in equity, at the suit of the husband, praying for a conveyance, by the trustees, of the legal estate of his share of the estate of his wife, was sustained.
    This was a bill in equity filed in tbe Supreme Court, on tbe part of Richard Henry Rush v. Lawrence Lewis and James Henry Blight, surviving trustees under the will of George Blight, deceased, and Murray Rush, an infant. The hill was hy the plaintiff as appointee of his late wife, Sarah Ann Rush, who was a daughter of George- Blight; and was against the defendants as surviving trustees under the will of the said Blight, and prayed for a conveyance of the legal title in certain real estate devised hy said Blight in trust for his said daughter’s sole and separate use during life, with power to her to appoint by will.
    The trustees demurred to the bill on the ground that the legal estate was not in them.
    Mrs. Sarah Ann Rush died on the 8th August, 1852, leaving her said husband, the complainant, and an only child, Murray Rush, an infant, of whose estate the Pennsylvania Company for Insurance on Lives, were, on 21st January, 1853, appointed guardian.
    On the 27th January, 1852, Mrs. S. A. Rush duly executed her will in writing, in which certain specific legacies are given; and as to the rest of her estate, real or personal, wheresoever, whether held in trust for her and subject to her will, or appointment by virtue of the will of her father, or of any other power or authority, or belonging absolutely to her, she provided inter alia as follows :

      “ If I shall die leaving my husband, and a child or children, or the issue of a deceased child surviving me, I will, devise, bequeath, and appoint, that the said residue and remainder of my estate, real or personal, shall he equally divided between my said husband, and all my children living at the time of my death, and the issue of such of my said children as may then be dead, share and share alike; the issue of any deceased child taking only their parent’s share, to have and to hold the same to them, their respective heirs, executors and administrators, share and share alike; and if any of my said children, or the issue of any deceased child, should die under age during the life of my husband, then I will, devise, bequeath, and appoint, that both the original and accruing share or shares of such child, or of the issue of any deceased child, shall be equally divided between my said husband and my surviving child or children, and the issue of any deceased child, to have and to hold the same to them, their respective heirs, executors, and administrators, share and share alike. But if my said husband should not then be living, I will, devise, bequeath, and appoint, that the same shall be equally divided between my then surviving children, and the issue of any deceased child; such issue in all cases hereinbefore provided for, taking only the share which their parents would have taken, had they been then living.”
    Blight, the father of Mrs. S. A. his executed on 81st August, 1834, after other provisions, directed that all the rest and remainder of his estate, real, personal, and mixed, should be divided into as many parts as he had children; and for that purpose authorized his executors, at a time referred to, to choose five persons to make a division and allotment amongst the children ; and as to the parts and shares of his estate which might be allotted to his daughters, he directed as follows: “ I give, devise, and bequeath to my said executors hereinafter named, and the survivors 'and survivor of them, and the heirs and assigns of such survivor for ever, in trust, as regards each and every such allotment, to let, lease, and demise the same, and receive and apply the rents, issues, and profits thereof, for the sole and separate use and behoof of each of my said daughters respectively, for and during her natural life, and so that the same estates, or the rents, issues, and profits thereof shall not be in any way or manner whatever, subject to, or liable for, any of the contracts, debts, or engagements of any husband, which either of my said daughters may hereafter have or take, and not to be in any way or manner whatever under his control, management, or interference, and from, and immediately after the death of either of my said daughters, then in trust for such person and persons, and for such uses, intents, and purposes, as she, by her last will and testament in writing, or by any writing under her hand and seal, in the nature of, and purporting to be her last will and testament, shall, notwithstanding any coverture, direct, limit, and appoint, which said last will and testament, my said daughters are hereby expressly authorized and empowered to make and execute-; and for want, or in default of such last will and testament or writing in the nature thereof, then in trust as regards the whole of the said portion so as aforesaid allotted, in trust for the benefit of my said daughter, to and for the use and behoof of all and every the child and children, which she my said daughter may leave, and the lawful issue of any of them, who may then be deceased having loft such issue, their several and respective heirs, executors, administrators, and assigns, in equal shares, as tenants in common in fee, such issue of any deceased child or children of my said daughters taking, however, and only receiving such part or share thereof, as his, her, or their deceased parent or parents would have had and taken, had he, she, or they been then living; and in the event of the death of either of my said children under age, and without leaving any lawful issue, then I give, devise, and bequeath, the part or share of my said residuary estate of him or her so dying, to be equally divided between his or her surviving brothers and sisters, in fee, the parts or shares thereof which shall belong to his or her sisters by virtue of this proviso, shall be held by my said executors, in trust for the same uses, intents, and purposes, and subject to the same provisos, powers, and limitations as are hereinabove set forth and declared of and concerning the several portions of my said residuary estate, so as aforesaid allotted, and to be conveyed in trust for the use and benefit of my said daughters respectively.

      McQall, for the complainant.
    It was submitted that the legal estate was outstanding in the trustees. It was said that in the case of Doe v. Simpson, 5 East 162, referred to in support of the demurrer, there were no words giving to the trustees afee. So in Doe ¶. Nichols, 1 B. & C. 336, another case referred to for the position that a trust estate is not to continue beyond the period required for the purposes of the trust, there were no words of limitation. The opinion of Baron Parke, 4 Welsby, H. & G. 568, was referred to.
    But in the present case, by the will of George Blight, a fee simple is given to the trustees in express and apt words, and there is nothing to show an intention in him to take away the legal estate from them after the death of his daughters. He devises to them in trust after the decease of his daughters, for such uses, &c., as the latter may appoint by will.
    Mrs. Rush devised one moiety of her estate to her son, an infant, with an executory devise over. It was suggested that the law would-not cast on the infant the legal estate, unless such a construction were inevitable; and it was suggested that the legal estate cannot be in the complainant unless it were in the infant; that there can be no splitting of the estate: 1 Bingham, N C. 573.
    It was said that the general rule laid down in Doe v. Nichols, that the legal estate will vest in the person beneficially entitled as soon as the trusts are satisfied, has been qualified by later decisions. Reference was made to the opinion of Parke, Baron, before cited; also to the case of Doe v. Edlin, 4 Ad. & Ellis 582 ; Doe v. Ewart, 7 Id. 636; Doe v. Field, 2 B. & Ad. 564; Watson v. Pearson, 2 Exch. Rep. 581; Doe v. Davis, 1 Ad. & Ellis 430. As to the case of Jones v. Say, 8 Viner 262, also relied on in support of the demurrer, Mr. Butler in his note to Eearne on Remainders, 55, says that in practice no reliance is to be placed on it as an authority for confining the estate in the trustees, under such a devise, to the life of the tenant for life. Mr. Blight did not devise directly to the appointees of his daughter, but to the trustees in trust for her appointees.

      Qadwalader and Newcomb, contrü, in support of the demurrer.
    May 12, 1853,
   The opinion of the Court was delivered-, by

Black, C. J.

— George Blight devised certain real estate to his executors in trust to pay the rents and profits to his daughter, Mrs. Rush, for her separate use during her life, and after her death in trust for the use of such persons as she might appoint by will, and in default of such appointment for the use of her children in fee. Before Mrs. Rush’s death, she executed the power of appointment by devising the estate to her husband and only son, with an executory devise over of the son’s share in case he should die under the age of twenty-one. This bill is brought to compel the trustees to make a conveyance of the legal estate to the parties equitably entitled. The defendants have demurred.

We are all of opinion very clearly that the demurrer must be sustained. After the death of Mrs. ■ Rush, the purposes of the trust were satisfied, and the legal estate vested in the cestui que use by the mere force of the statute. If it had not been made the duty of the trustee to receive and pay over the profits to the first taker of the beneficial interest, they never would have had an estate in it. This reason ceased at her death, and so did the estate. It makes no difference that the estate was devised to the trustees with words which import a fee. The Statute of Uses would be nullified by a rule of construction like that contended for by the plaintiff. The doctrine of the defendant accords with the weight of the authorities, English and American.

There being no necessity for any conveyance, because the legal title is alread}r vested in the plaintiff, this bill is to be dismissed at the costs of the plaintiff.

Decree accordingly.


author: Lewis, J. Lowrie, J.,

text:
    Baker’s Appeal. M’Gowan’s Appeal. Davis’s Appeal.
    1. When the interest of one partner in a partnership property passes to another person, whether hy sale hy the partner himself, or by execution, or by his. death, or by assignment under the bankrupt or insolvent laws, the person claiming under the transfer acquires only an interest in the partnership, which cannot be made available but under an account between the partner and the partnership, and it is an item in that account that enough must be left for the partnership debts.
    2. But the right to confine such partner or those who claim title under him to his interest in the surplus after the payment of the partnership debts, is an equity which rests in the remaining partner or partners alone, and not in the creditors of the firm, and may be insisted on or waived by the remaining partner at his pleasure. And the rule is the same where, in the case of a sale by one partner to his copartners, the latter engage to pay the partnership debts. The engagement to pay is but a personal contract, and creates no lien on the property in favor of the partnership creditors. The remaining partners have a right to assign the property for the payment of their own debts exclusively.
    3. The Act of 1843, to prevent preferences in assignments, will not prevent an assignment of-partnership property for the payment, without preference, of all the debts of the firm to whom the property belonged at the time of the assignment.
    4. A firm consisted of five -brothers.. 'Two of them retired from the firm, disposing of their interest in the partnership estate and effects to the other three, the latter agreeing to pay the debts of the firm, and exonerate and defend the assignors from all obligation to pay any part of the same. After some time, one of the remaining three sold his interest in the partnership property to one of the remaining two partners, said to be without the approbation of his copartner. The two remaining partners, after contracting debts, executed an assignment of their partnership property, by the terms of the assignment it being expressly to pay the creditors of the last firm, composed of the two partners
    It was Held, that the creditors of the first two firms had no right to claim any portion of the fund last assigned, but that the same was distributable among the creditors of the last firm.
    Appeal of Nathan Baker from the final decree of the Court of Common Pleas of Chester county, distributing the estate and effects of James Yearsley and John Yearsley, late trading under the firm of James Yearsley and Brother, which had been assigned to Charles Downing, William Windle, and Abraham Gibbons, Jr., in trust for the benefit of creditors.
    1. The parties litigating this appeal were Nathan Baker, appellant, and M. Brooke Buckley, the latter of whom took exception to the auditor’s report and distribution of the assets, and succeeded in the Court below in obtaining a decree more favorable to the class of creditors to which he belongs.

      Catharine Me Cowan’s Appeal: The parties are the same in this appeal, except the appellant, who appeals as the administrator, &c., of John McGowen, deceased.

      James Dams appealed in the same case.
    On the 1st day of April, 1847, five brothers, James, John, Nathan, Thomas and Benjamin Yearsley, entered into copartnership in the manufacture of iron at Coatesville, Chester county, in the name óf “ James Yearsley and Brothers.” They continued in business together until the 1st day of August, 1848, when Thomas and Benjamin retired from the firm, leaving the remaining three brothers to carry on the concern.
    When Thomas and Benjamin withdrew, notice of the dissolution was published in a newspaper.
    On the 27th day of July, 1848, the five brothers entered into a written contract, whereby the said firm and copartnership was from that date dissolved, on the following terms and conditions, to wit:
    “It is stipulated and agreed that James, John, and Nathan Yearsley, do take the entire stock of merchandise, goods, and real estate, now belonging to said firm, with power to collect all book debts and claims now due the firm, and recover any part of the same, in the name of the firm, by suits at law or in equity. That they shall pay all debts due by the firm, hereby exonerating and for ever defending Thomas and Benjamin Yearsley from all obligation to pay any part of the same¡ The said Thomas and Benjamin relinquishing all claims to benefit from any debt due to the firm, now and for ever.
    ■ “ And finally, that the said James, John, and Nathan Yearsley do agree to pay to the said Thomas and Benjamin, the balance lawfully due them on settlement of their individual accounts with the firm, together with interest on all their moneys used by the firm for the time so used, on the 1st day of April, 1849, with interest.”
    Signed by James, John, Thomas, Nathan, and Benjamin Yearsley.
    The three brothers, after the withdrawal of the other two, continued in business and carried on the concern in the same name up to April 1,1849; when Nathan by a parol bargain sold his interest in the partnership to John, without the approbation of James. No notice of this sale was published, nor was any change made in the name of the firm. The business was carried on subsequently as from the beginning, in the name of “ James Yearsley & Brothers.” No change was made in the books of the partnership when Thomas and Benjamin withdrew, nor when Nathan sold to John. A number of debts contracted by the five were paid by the three, and notes given in the name of “ James Yearsley & Brothers,” while the five constituted the .company, were taken up and new notes given in the same name by the three.
    The partnership property originally belonging to the firm consisted of valuable real estate (on which a large rolling mill was built), and the stock in trade. The title to this real estate prior to the formation of the partnership, was vested in James Yearsley for two-thirds, and in James and wife, in right of his wife, for one-third. In order to vest the estate in the five brothers, it was arranged that James and wife should convey the whole to John, and that John should reconvey to James one-fifth part, and to each of his other three brothers another fifth. Pursuant to this arrangement James and wife conveyed to John, but John never conveyed to his brothers. The deeds were prepared for that purpose, but were not executed. John held the title for the use of the firm, and the property was occupied and used for the business of the partnership. On the 12th day of December, 1850, James Yearsley and John Yearsley assigned all their partnership property, estate and effects, real and personal, in trust for the benefit of the creditors of “James Yearsley h Brother,” and to return the overplus to James and John, according to their respective interests.

      The assignees took possession of all the real estate, the title of which was held by John, and which was used and occupied as above stated, first by the five and afterwards by the three brothers operating in the name of “James Yearsley & Brothers,” and also of the stock in trade and partnership effects on hand at the time of the assignment, and converted the same into cash. The assignees settled an account exhibiting a balance for immediate distribution of $50,000, leaving in their hands personal property still undisposed of, valued at $16,953.43.
    Of this balance of $50,000 the sum of $46,663.66 was the proceeds of real estate sold by the assignees, the legal title of which was vested in John only, as has been already stated.
    The claims upon the fund of $50,000 for distribution, were of three classes.
    1. The debts contracted by the firm composed of the five brothers and still remaining unpaid, amounting in the whole to the sum of $32,793.26
    2. The debts contracted by the firm composed of the three brothers and still remaining unpaid, amounting in the whole to the sum of $1,664.90
    3. The debts contracted after Nathan sold to John, and when the firm was composed of two brothers, amounting to $66,616.01
    On petition presented to the Court, an auditor was appointed to make distribution among the persons entitled. ■ The auditor reported a distribution among all the creditors of the three classes pro rata and without preference. Exceptions to the report were filed, claiming that the debts which originated prior to August 1, 1848, when Thomas and Benjamin retired from the firm, should be postponed; and that the debts which were created after that date should have priority of claim upon the fund.
    The Court sent the matter back to the auditor with instructions to report a distribution of'the fund among the creditors, whose claims originated after August 1, 1848.
    To this report exceptions were filed on the part of Baker, viz.:
    1. The auditor erred in giving a preference to the creditors of the firm composed of James Yearsley, John Yearsley, and Nathan Yearsley, doing business as “ James Yearsley & Brothers.”
    2. The auditor erred in applying the assets of James Yearsley & Brother to the payment of the debts of James Yearsley & Brothers, to the exclusion of the creditors of the old or first firm who stood on the same equitable ground. ' |
    James Davis, Catharine McGowan, administrator of the estate of John McGowan, deceased, Joseph P. Baker, John Walter, and other creditors, also took substantially the same exceptions, all of which were overruled; and Nathan Baker, James Davis, Catharine McGowan, administrator &e. of John McGowan, and several other creditors, took separate appeals to this Court.
    It was stated that the business from first to last was done in the name of “ James Yearsley k Brothers.” Also that the assignment, under which this fund was to be distributed, was made by James and John Yearsley, as partners in trust, to pay the creditors of the said partnership of “James Yearsley & Brother,” composed of James Yearsley and John Yearsley. The assignment was of the firm property of James Yearsley & Brother to pay the debts of that firm, and the surplus, if any, to be returned to James and John, in proportion to their several interests. It was said that no firm bearing the name of “James Yearsley k Brother,” existed. After Nathan sold his interest to John, James and John continued the business in the same name as that in which they began, up to the day when they made their assignment. It was said that in that instrument they first set themselves forth as partners doing business in the name of “James Yearsley & Brother;” and transferred all their property, real, personal, and mixed, to pay the debts of “James Yearsley & Brother.”
    In James Davis’s Appeal the facts were the same, and the history of the case the same as in Baker’s appeal.
    In Catharine McGowan’s Appeal there is some valuation in the circumstances.
    In the first report of the auditor he classed the claim, of John McGowan among the debts of the old firm of the five brothers.
    In the second report he altered this classification, and placed the two notes which constituted that claim among the debts of the new firm of the three brothers, and the reason he assigned for this alteration was, that the indebtedness of the firm to John McGowan, of $6127.51, was ranked in the former report by mistake among the debts of the old firm. The debts to John McGowan were contracted during the existence of the old firm, but the new firm gave its notes to pay them, of the dates shown in the former report.
    One of those notes was drawn November 17, 1848, at five months, for $4100, payable to John McGowan or order, at the Lancaster Bank.
    The other was drawn December 11, 1848, at five months, for $1530, payable at Lancaster Bank, to John McGowan or order. Interest was paid on both notes on the following April.
    A letter from James Yearsley, dated 12th month 7th, 1848, it was said, showed that he made application at that date to John McGowan, for money to pay for a machine for “turning and boring car axles and wheels.” It was said that this went to show that the last note was given for money borrowed for that purpose.

      Interest was paid on both of these notes by James Yearsley, acting for the new firm in April, 1850.
    The auditor, considering these debts as among the liabilities of the new firm, sp reported; but the Court ordered them to be restored to the list of debts of the old firm, and Mrs. McGowan appealed.
    On the part of Baker and Davis exceptions were filed as follows:
    1. The Court erred in sustaining the exceptions to the first report of the auditor, and in decreeing a different distribution.
    2. The Court erred in decreeing that the assets of the assignors “ James Yearsley & Brother,” should be distributed equally among the creditors of the three brothers, James Yearsley, John Yearsley,- and Nathan Yearsley, partners in trade, under the name of “James Yearsley & Brothers.”
    On the part of Catharine McGowan it was excepted, 1. That the Court erred in decreeing that the firm of James, John, and Nathan Yearsley, were not liable for her claims as administrator. 2. In excluding them ; and 3. In placing such claims in the class of debts due by the old firm.
    The case was argued by Lewis, with whom was Pennypaclcer for Davis and Baker. And by W- Darlington for appellee.

      Stevens was for the administratrix of McGowan’s estate.
   The opinion of the Court was delivered by

Lewis, J.

— These are appeals from the decree of the Common Pleas of Chester County, distributing the estate and effects of James and John Yearsley, lately trading under the firm of James Yearsley & Brother.

On the 1st April, 1847, the five brothers, James, John, Nathan, Thomas, and Benjamin entered into partnership in the iron business. On the 27th July, 1848, Thomas and Benjamin retired from the firm, disposing of their interest in the partnership estate and effects to the other three brothers, the latter agreeing to pay the debts of the firm, and to exonerate and for ever defend the said Thomas and Benjamin from all obligation to pay any part of the same.

On the 1st April, 1849, Nathan Yearsley sold his interest in the partnership property to John Yearsley. It is stated that this sale was without the approbation of James Yearsley. James and John however continued the business, and contracted debts until the 12th December, 1850, when they executed on assignment of the partnership property of the said James Yearsley and John Yearsley, trading and doing business under the firm name of James Yearsley & Brother. This assignment was expressly to pay the creditors of the partnership “composed of the said James Yearsley and John Yearsley.”

There are three classes of creditors claiming distribution of the fund in the hands of the assignees. 1. The creditors of the first firm, consisting of the five brothers. 2. The creditors of the second firm, consisting of the three brothers. And, lastly, the creditors of the third firm, consisting of the two brothers who made the assignment expressly for the benefit of their own partnership creditors.

The appellants, Davis and Baker, are creditors of the first firm, and McGowan was originally a creditor of that firm, but now claims to be a creditor of the second firm by means of a note given by the latter upon the surrender of his claims against the first partnership. McGowan also claims to be a creditor of the second firm for a sum of money loaned; but as this claim has been allowed to participate in the distribution, without exception, its right will not be considered here, nor its position disturbed.

Where the interest of one partner in the partnership property passes to another person, it is immaterial whether that transfer be effected by a sale by the partner himself for a valuable consideration — by a sale of his interest on execution — by his death and the succession of his executor or administrator, or by assignment Under the bankrupt or the insolvent laws. “ In all these cases the party coming in the right of the partner, comes into nothing more than an interest in the partnership which cannot be tangible, cannot be made available, or be delivered, but under an account between the partnership and the partner; and it is an item in the account, that enough must be left for the partnership debts.” Taylor v. Fields, 4 Vesey Jr. 396; and Deal et al v. Bogue. See 8 Harris 228.

But it is well settled, that the right to confine such partner, or those who claim title under him, to his interest in the surplus, after payment of the partnership debts, is an equity which rests in the other partners alone, and not in the creditors of the firm. The latter have no lien on the property, and must work out their preference in the distribution of the partnership funds, entirely through the medium of the partners whose interests remain undisposed of: Story’s Equity, § 1253. If they consent or submit to a different disposition of the assets, the preference of the creditors is at an end, and they must rely upon the personal responsibility of the partners who contracted the debts. Where one partner sells his interest to another, in consideration of an engagement by the latter to pay the partnership debts, the rule is the same. The engagement to pay them is but a personal contract. It creates no lien on the property. It follows as a necessary consequence, that if the partner who has acquired the interests of his former associates, and in whom resides the right to appropriate the partnership assets to the payment of partnership liabilities, thinks proper to exercise his dominion, and to make a different disposition of them, he has a right to do so; and the preference of the partnership creditors engrafted upon, and deriving its support from his equity, ceases to exist. The scion dies with the stock. These principles are announced in Story on Partnership, sections 358, 359; Gow on Partn. Ch. 5. s. 1; and Collyer on Partn. b. 4, ch. 2, s. 1; and appear to be fully sustained by Ex parte Ruffin, 6 Vesey, Jr. 126; Taylor v. Fields, 4 Ves. Jr. 396; Kelly’s Appeal, 4 Harris, 59; 11 Ves. Jr. 3; 10 Ves. Jr. 347; Doner v. Stauffer, 1 Penn. R. 198; Campbell v. Mullet, 2 Swanst. 552, and other authorities. Lord Eldon, in Ex parte Ruffin,' seemed to think that if the right to dispose of the assets did not exist in the partners, “ no partnership could ever arrange its affairs.” And Chief Justice Gibson has shown, in Doner v. Stauffer, that after a sale of the interest of one partner, the equity and the interest of the remaining partner is the subject of sale on a separate execution against him, which passes the entire interest to the purchaser. And that where the interest of each is sold on separate executions for their individual debts, the partnership creditors can neither follow the property in the hands of the sheriff ’s vendee, nor claim any portion of the proceeds of sale. There can be no stronger illustration than this of the principle that the partnership creditors have no equity of their own upon which they can enforce a preference, or control the partners in exercising dominion over their assets, so long as they remain unencumbered by liens.

If the property from which the fund in Court arises had been assigned for the benefit of the creditors of the second firm, composed of the three brothers, a question might arise whether, by their agreement to pay the debts of the first firm, they did not convert those debts into debts of the second. But it is not necessary to discuss that question, inasmuch as the assets have been assigned for the benefit of the creditors of the last firm, composed of the two brothers. As the whole right of property existed in those two brothers, at the time of the assignment, their right to appropriate it to the payment of the partnership debts of the firm to whom it belonged is clear and unquestionable. The Act of 1843 does not stand in the way of such an assignment. That Act was not intended to deprive partners of their legal and equitable right to appropriate partnership assets to the payment, without preference, of all the debts of the firm to whom the property belonged at the time of the assignment.

The right of property existing in James and John Yearsley at the time of assignment, their right to appropriate it to the payment of the debts of the firm of which they were the only members being established, and the fact that they have so appropriated it being also shown, the only remaining question is, do the appellants belong to that class of creditors ? This is the pinch of the case. They were all originally creditors of the first firm. McGrowan afterwards became a creditor of the second. But neither of them is a creditor of the third, unless he has become so without his knowledge or consent, by the sale made by Nathan Yearsley to his his brother John, and by the act of John in bringing his interest thus purchased, into the new partnership, composed of himself and his brother James. It is not necessary to cite authorities to prove that it takes at least two to make a bargain. Nothing can be clearer than that these transactions between the partners created no contract with their creditors. No creditor could thereby be compelled to release his demand against five for the more uncertain security of a claim against two. These transfers neither discharged the original partners, nor imposed upon the subsequent firm any new liabilities to the creditors of the first. And they furnish no foundation whatever for an action by the creditors of the two first firms against the partnership last established. A creditor without a right of action is a legal impossibility. If John, when he purchased the interest of Nathan, had agreed with the latter to pay the debts of the old firm, this would not have made them his creditors; and if it had, they would not thereby have become the creditors of the new partnership about to be established. But we have no evidence of the terms of this sale, or of the consideration upon which John brought his interest into the new partnership with James, and afterwards united with him in applying the assets to the debts of that firm. The effect of the sale by Nathan to John was to dissolve the old firm, and to transfer Nathan’s interest in the assets to John, subject to the right of James to insist on applying them in the first place to the payment of the liabilities of the old firm. This right he might insist upon or waive, at his pleasure. That he waived it is demonstrated by his application of the assets to other purposes. To allow creditors of the two first firms to claim any portion of this fund would invert the well established principle that the preference of partnership creditors is not founded upon any equity of their own, but must always be worked out through the agency of the partners; it would destroy, without authority of law, the necessary dominion which every man has over his own property, and give the control to those who have fairly transferred all their rights to others. To class these claimants as creditors of the last firm, without their consent, without the consent of the last firm, without any release of their claims against their original debtors, and without any contract or consideration whatever, would be to create a liability where none existed either by the contracts of the parties, or by the law of the land. To permit this would be an illegal interference with the rights of the creditors of the last firm, and a palpable violation of the terms of the assignment.

The errors assigned have not been sustained, and the decree of distribution is therefore to be affirmed.

Lowrie, J.,

dissented.

The deeree was affirmed; but subsequently the Court was informed that a mistake existed as to the decree of the Court below, and a rule was granted to show cause why the decree should not be reformed, and a decree made according to the principles indicated in the preceding opinion.

Lewis, J. — It is suggested by U. V. Pennepaeher, Esq., that the decree of this Court affirming the distribution ordered by the Court below, is not in conformity to the principles indicated in the opinion filed.

Upon inspection of the paper-book it appears that the Court below expressed the opinion, “that the creditors of the old firm, are delayed until the payment of the debts due to the creditors of the new firm,” — “that the creditors of the new firm will come in on the fund for distribution before the joint-creditors of the old firm;” and sent the cause “back to the same auditor for correction on this basis.” It further appears that the auditor reported a distribution stated by him to be “ among the- creditors of the new firm, pursuant to the directions of the Court.” In this distribution the dates of the debts claimed are not stated, nor does it appear distinctly that by the term “ new firm,” the Court below intended the last of the three firms; but as that was the “ new firm,” and as the principles contained in the opinion filed, indicated the propriety of distributing the assets among the creditors of the firm last engaged in business, composed of the two persons who made the assignment, it was supposed that the distribution below was among those creditors, and for that reason the decree was affirmed.

In order that the alleged mistake may be corrected, if shown to exist, it is ordered that a rule be granted to show cause why the deeree entered in this case shall not be reformed, and the case committed to John K. Pindlay, to report a decree of distribution according to the principles indicated in the opinion of this Court on file. The rule to be heard on the 26th of July, 1853, and notice to be given by Mr. Pennepacker to all the parties interested, or to their attorneys; and the record not to be remitted until this rule is disposed of.


text:
    Styer’s Appeal.
    1. The action of the Common Pleas in opening a judgment and in entering judgment for the defendant in the same, in a case stated involving the consideration of the judgment, though erroneous and afterwards reversed, did not dispense with the necessity of a skire facias to continue the lien ; and the lien having been suffered to expire by the lapse of five years before the judgment of the Common Pleas was reversed and judgment entered for the plaintiff, it was Held, that the said judgment was postponed in favor of a subsequent j udgment.
    2. Real estate, the use and profits of which were devised to the widow of the testator for life, was sold by the widow and another person as trustees under the will and executors, and conveyance in fee was made by them: it was Held that though the widow would be estopped from claiming her life estate as against her vendee, yet that she may not be estopped from claiming against the distributees, who were to receive the proceeds of sale after the termination of her and another’s life estates, her just share of the proceeds of the sale during her life, on proper security being given by her. That question, however, is determinable only when the executors or trustees come before the proper tribunal, in the settlement of their aocounts or otherwise.
    S. The judgment of the executors was held to be entitled to payment so far as the fund extended, after the payment of a judgment against the purchaser, obtained after the judgment of the executors, but the lien of which was in. existence at the time of the sheriff’s sale of the premises. The distribution of the amount so received by the executors to be settled before the proper Court.
    This was an appeal from the decree of the Court of Common Pleas of Montgomery county, decreeing distribution of the proceeds of sale of real estate of Solomon Ereas, sold at sheriff’s sale. The property was sold for $2132, on a vend exp. to November T., 1851, issued on a judgment in favor of Elizabeth Styer and Henry Styer, acting trustees and executors of the will of David Styer, deceased, against Solomon Ereas. Upwards of $2000 was paid into Court, and an auditor was appointed to report distribution. The judgments against Solomon Ereas were as follows :
    A judgment entered June 5th, 1843, on a bond in favor of the trustees or executors of the will of David Styer, deceased. A fi. fa. was issued thereon.
    The judgment of the trustees and executors, before referred to, was given for a part of the purchase-money of a tract of land, sold by the said trustees at public sale, to Solomon Ereas for $2190. He paid $730 in cash and executed a bond in their favor, with a warrant of attorney, for $1460, the balance of the purchase-m'dney, and the executors executed to him a deed in fee simple for the land. On 30th October, 1843, a motion was made to the Court, on the part of Solomon Ereas, for a rule to show cause why the judgment should not be opened, &e., on the ground that the executors had no power to sell the lands referred to, and that therefore the consideration of the bond had failed.
    A rule was granted. On 31st January, 1844, the rule was argued and the judgment was opened and the proceedings subsequent thereto set aside; and on March 1, 1844, the Court were of opinion that the executors had no power to sell during the life of the widow of David Styer, and that the title being defective, the consideration of the bond had failed; and judgment was entered for the defendant in the case stated.
    That judgment was reversed, and judgment entered for the plaintiff therein. See a report of the case in 3 Harris 339-343. Thus: The judgment of the executors was entered on 5th June, 1843. It was opened on 31st January, 1844, and the subsequent proceedings set aside. On March 1st, 1844, the case was stated, and on the same day the Court directed judgment to be entered for the defendant in the case stated; and on 12th April, 1851, the record was remitted from Supreme Court with the proceedings reversed, and judgment for plaintiffs. Then, to May Term, 1851, an alias fi. fa. was issued on the judgment against Solomon Ereas on the bond, and a levy made on the land sold to Solomon Ereas by the executors; and the same land was sold on the vend, exp., on that judgment to November T., 1851, the money in dispute having arisen from that sale. During the period from the opening of the judgment on January 31st, 1844, till April, 1851, there was no revival of the judgment of the executors.
    On November 25th, 1850, a judgment was entered in favor of The Washington Benevolent Society, &c., against Solomon Ereas and another.
    Before the auditor the fund in Court was claimed as follows : Hirst, Eor Elizabeth Styer, who was the widow of David Styer, was claimed a sum equal to the amount of interest accrued from April 2d, 1840, on $1460, the principal of the bond given by Solomon Ereas, on April 2d, 1840, to the said Elizabeth and Henry Styer, executors of the will of David Styer, on which the judgment before referred to was entered.

      Secondly, The residue of the fund was claimed for the said executors on their judgment against Solomon Ereas.
    The fund was also claimed, Eirst, for the Washington Benevolent Society on its judgment; and.secondly, the residue of the fund was claimed to be equally divided among the children of Mary Scheetz, deceased, or their legal representatives.
    The terms of the will ’ of David Styer, which are material in this matter, are stated in the report in 3 Harris. By it he devised to his wife Elizabeth all his personal property. And he gave to her the use, or the rents and profits of all his lands in Whit-pain township, during the term of her natural life; and after her decease, his daughter Mary to enjoy the use and profits of the said ' land during her natural life; and after the decease of Mary the lands to be sold by the trustees, or the survivor of them, who were authorized to execute good titles for the same, and the money arising from the sale to be paid in equal shares to all the children of his daughter Mary, &c. Mary died after her father, leaving four children. Afterwards, on the 11th November, 1839, the land, the use or rents óf which had been devised to the widow for life, and after her death to Mary the daughter, was sold by Elizabeth Styer, the widow, and Henry Styer, acting trustees and executors, at public sale to Solomon Ereas, as before stated; and on 2d April, 1840, they executed a deed to him in fee simple.
    The auditor was of opinion that the trustees had no judgment from January 31,1844, when it was opened, till April, 1851, when the record was returned from the Supreme Court. But if the said judgment was to be regarded as a subsisting judgment during such time, still as it was not revived during that time, it ceased to be a lien after five years. He referred to the provisions in the third section of the Act of 1827, that “ no order or rule of Court, or any other process or proceeding thereof, shall have the effect of obviating the necessity of the revival, in manner herein prescribed, of any judgment whatever.” Also Erick’s Appeal, 1 JFaiis 393. He reported in favor of the judgment of the Washington Benevolent Society as being entitled to priority of payment.
    As to the claim of the widow to the interest which accrued upon the bond of Ereas, he said that she had the right to waive the benefit to herself, under the will, of the rents and profits of the-real estate during her life, and that she did waive it by joining in the deed; and that therefore she was not entitled to the interest of the bond: Hast v. Porter, 1 Harris 633.
    As to whether the balance of the fund, after the payment of the judgment of the Washington Benevolent Society, was to be awarded to the executors, or directly to the issue of Mary, he decided in favor of the payment to the executors, and that the children might claim through them. The distribution, therefore, was first to the judgment of the Washington Benevolent Society, and the balance to the executors.
    Exceptions to the report were filed on the part of the widow; and also on the part of Ereas for not awarding the balance of the fund directly to the children of Mary.
    Smyser, President Judge, confirmed the report of the auditor.
    On the part of the widow exceptions to the decree were filed, Eirst: That the Court erred in deciding that the judgment of the Washington Benevolent Society was first entitled to payment; Second, to the decree that the widow'was not entitled to any portion of the fund; The third was to the effect that the widow was entitled to-the interest which accrued on the bond of Freas, and the executors to the balance of the fund.
    Mulvany, for the appellants.

      Fox, for appellees.
   The opinion of the Court was delivered by

Lewis, J.

— The action of the Court below, in opening the judgment of 5th July, 1843, in favor of the executors of David Styer, deceased, and in rendering judgment for the defendant, upon the facts stated, did not dispense with a scire facias to continue the lien. The Act of 26th March, 1827, is explicit in declaring that “ no order or rule of Court, or any other process or proceeding thereof, shall have the effect of obviating the necessity” of a scire facias to continue the lien. Had the plaintiffs in that judgment pursued the provisions of the statute in this respect, the erroneous proceedings of the Court, which were afterwards reversed, would not have affected their lien. As the case stands, their judgment is postponed in favor of the intervening judgment obtained by the Washington Benevolent Society of Whitpain township; but it is entitled to the residue of the money, after payment of that judgment, and the expenses of the audit. This was the decree of the Court below, and that decree is affirmed for the reason already stated. In thus awarding the residue of the money to Elizabeth and Henry Styer, executors and trustees, under the will of David Styer, deceased, in satisfaction pro tanto of the judgment in their favor, we give no direction respecting the distribution of it by them. This direction will be given, if necessary, when they come before .the proper forum in the settlement of their accounts, or when they are properly before the Court for direction in regard to the duties of their trust. The distribution should be made according to the true intention of the testator; and if it be true, as decided in Styer v. Freas, 3 Harris 342, that “ the daughter being dead, not only the words of the power, but the intent of the testator were fulfilled by the widow joining in the deed,” it will be worthy of consideration, at the proper time, whether the faithful performance of her duty as executrix and trustee is to deprive her of the provision made in her favor as devisee. Her act in joining in the conveyance, even if not in strict conformity to the power, would estop her from afterwards claiming against her own vendee the life estate which she had conveyed to him. But the conveyance may, nevertheless, not estop her from claiming against the distributees her just share of the proceeds of the sale. When the vendee'bought, he paid his money upon the faith that the conveyance gave him a good title, and it would be unjust to permit one who had thus misled him to disturb his possession. But the distributees under tbe will have no such equity. On tbe contrary, the life estate of the widow increased the amount of the consideration received, to the extent of its value, and if she should be permitted, upon proper security, to enjoy the possession of the consideration money for the term of her life, we do not perceive how this could affect injuriously the rights of those in remainder. The conversion of the estate into money is not necessarily a transfer of the life estate to the remainder-men. These remarks are made merely to guard against misconstruction in affirming the present decree of distribution, and without any intention to decide any question not raised by the record before us.

Decree of distribution affirmed.