text:
    Hantz versus The York Bank.
    A sheriff is not bound for interest on money collected by him on execution until after demand made of him; and a rule on him to pay the money into court, when there is a dispute among the execution creditors about their several rights to it, and a delay for several years after that, during which the dispute existed, cannot be regarded as equivalent to a demand, even though .he does not account for the disposition of the money in the mean time.
    Error to the Common Pleas of York county.

    This was an action of debt brought on 18th October, 1850, in the name of the Commonwealth for the use of the York Bank v. Jacob Hantz, on his official recognisance as sheriff; wherein the York Bank claimed for money collected by him on an execution, with interest. There was a case stated between the parties in the nature of a special verdict.
    Hantz was elected sheriff in October, 1842. On the 24th August, 1843, the sheriff had in his hands several executions against H. Y. Slaymaker, in favor of different creditors, on which he had sold the lands of said Slaymaker. On that day the sheriff was ruled to pay the money into Court, by September 19, 1858, for distribution. The sheriff was notified of the rule.
    The oi’der not having been complied with, the Court, on December 5, 1843, made an order on the sheriff to deposit in the York Bank “ to the credit of the Court of Common Pleas, agreeably to the rules of Court on that subject, all money received by him from purchasers; and to deposit all moneys received by him in future from purchasers as fast as received in like manner; in the mean time the money to be considered in Court for the purposes of distribution.” Of this order the sheriff had knowledge. On the same day a commissioner was appointed to make distribution.
    On January 8, 1844, the report of the commissioner was submitted. By this report above $28,000 was awarded to the York Bank.
    On 1st April, 1844, the Court directed a mechanics’ lien claim to be paid, and confirmed the report as thus modified.
    In September, 1845, issues were directed to try the validity of some of the judgments confessed in the name of the York Bank.
    November, 1845, the sheriff paid to the bank above $18,000 on being indemnified. On November 10, 1845, the first of the issues was tried, and resulted in favor of the bank,’ A writ of error was taken, and on June 6, 1846, the judgment was affirmed. In May, 1846, the order as to the other issues was rescinded. No further order of distribution was made. The record of the issue taken up was not directed to be remitted, but it was found in the prothonotary’s office in May, 1851, since the bringing of this suit.
    It was further stated in the case stated that the sheriff made no deposit to the credit of the Court of Common Pleas, nor was Tie formally notified to do it. He received all the purchase-money of said sales at or before the 8th November, 1845.
    Also; there is no rule of the said Court of Common Pleas providing that money paid into Court shall be paid to the credit of the Court of Common Pleas, nor has it ever been done. The only rule on the subject of paying money into Court is as follows, viz.—
    To settle in future all disputes respecting the bringing of money into Court, in causes depending in the Court of Common Pleas, it is ruled, That the same practice shall prevail in all such cases, as the statutes 4 & 5 Ann. cap. 16 prescribes, according to the usage, practice, and construction under it, in the Court of King’s Bench at Westminster, at the time of the late revolution.” It has been a common practice of this Court to treat money raised by a sheriff’s sale as in Court, by agreement for the purposes of distribution, after a rule has been taken and served on the sheriff to pay it into Court; in which case the money has remained in the sheriff’s hands, awaiting the order of the Court. The Court has never rer fused to make such orders regarding any particular fund, as all the parties interested in that fund desired.

      . The York Bank having received all the money to which it was entitled except above $7415.40, demanded the amount from the sheriff shortly before the institution of this suit. The sheriff refused to pay interest — what disposition he had made of the money in the interval did not appear.
    May 5,1853. — Opinion of Eisher, J. — “It is contended in this case that the plaintiff cannot recover because there was no final decree. Although the Court believe that the proceedings would have been much more regular, had there been a decree of Court settling the costs and ordering the payment of the money after the decision of the issue No. 141 Aug. T., 1845, by the Supreme Court; and the withdrawal of the issues Nos. 142 and 143 in the Court below; and whilst admitting that no other decree of distribution was made than that confirming the auditor’s report nisi on the 8th of January, 1844, we have come to the conclusion (not without hesitation) to consider the confirmation nisi on that day as a decree of distribution, rather than at this late period turn the parties round to a new action. As- regards the question of interest, the Court are of opinion that the neglect of the defendant to deposit the money ‘ in bank as fast as received’ is conclusive evidence that he had used it himself, and is therefore liable to pay interest from the 8th of November, 1845, when the case stated finds that he had collected the whole amount of proceeds of sale. The Court therefore render judgment on the case stated for the plaintiff for $7415.46, debt with interest from November 8, 1845, to this day, amounting in the whole to $10,748.66.”
    Error was assigned to such judgment.

      Evans and Mayer, for Hantz.
    — It was contended that the sheriff was not in default till the right to the money was settled, and that he was not liable for interest unless the money was unlawfully withheld: 13 Ser. & R. 199. It is not stated in the case stated that the sheriff used the money, and it was not the province of the Court to assume such to be the fact: 3 Wharton 149 ; 3 W & Ser. 437; 6 Harris 493, Berks County v. Pile. It was not stated in the ease stated that the sheriff neglected to deposit the money in bank as fast as he received it, but that he made no deposit “to the credit of the Court of Common Pleas,” nor was he formally notified to do so. It was said that no rule of Court existed agreeably to which such a deposit could be made. It was said that from his failure so to deposit, it was not to be presumed that he used the money.
    There must be a final decree or order determining the right before the sheriff is in default: 13 Johns. 255; 5 Waits 300; 1 Whar. 408; 4 Watts 411; 14 Ser. 7 R. 231.
    Also there must he a demand or suit before interest is demand-able : 3 Barn. & Ald. 696; Watson on Sheriffs 202; 1 Root 333; 3 Mass. 299; Id. 251; 4 K. Hamp. 199; 1 Marsh. Ken. 364; 2 Dallas 182. Such is the condition of the sheriff’s recognisance, viz., to pay “ upon a request to him for that purpose made; ” 11 Price 575; 13 Ser. & R. 205; 4 Watts 59; 17 Ser. & R. 278; 9 Barr 308, Oliphant v. Frost; 9 W. & Ser. 59. The sheriff was in the light of a stakeholder : 2 Dallas 215; 11 Ser. & R. 190 ; 1 Pet. C. C. Rep. 521; 4 Metcalf 1; 8 Watts 73; 5 Barr 94.
    The order of December 5, 1843, was not enforced by the bank. If it had been enforced, the payment into bank would have enabled the Bank to have made interest on the money deposited, but it would not have put the bank in a better situation as a judgment-creditor, or have added to the amount of its judgment. When a claim for interest does not depend on express contract, but is in the nature of damages, diligence on the part of the claimant to procure the money is necessary : Laing v. Stone, Moody & Malkin 259; 3 Car. & P. 376; 10 Barr 453; 8 Taunt. 45; 1 Barn, & Ald. 577, the case of an auctioneer.
    In this ease there was no evidence that the defendant used the money; and it was Said not to have been incumbent on him to prove a negative.

      Chapin, with whom was Barnitz, for defendant in error.
    — The right of the bank was finally established by the affirmance in the Supreme Court. It was said that no decree of distribution, subsequent to such affirmance, was necessary. By the affirmance the former decree was rendered absolute. The bank relies on the absolute decree of distribution made on 1st April, 1844. It was said that the order in August, 1843, was a demand on the sheriff, he having notice of it. But if that were not sufficient, the order of Court of December 5, 1843, was such.
    It was said that it was not necessary to set out in the case stated that the sheriff had used the money; that having retained the. money which he might have paid over, the presumption was that he used it: Reed v. Reed, 1 W. & Ser. 235; 3 Bin. 121. The money was to be considered in Court merely for purposes of distribution ; that the Court might have jurisdiction over the fund, in the mean time, viz.: between the date of the order, viz. December 5, 1843, and until the sheriff could comply with the order, on the receipt of the last of the purchase-money, which was on or before the 8th November, 1845: 3 Bin. 121; Price 575, Ex parte Tillers.

      The interest ran at least from the 6th June, 1846, if it had not begun to run before that time.
   The opinion of the Court was delivered by

Lowrie, J.

— The bank was not in a condition to demand this money until the question of distribution was finally settled, and its demand, and the defendant’s default after that, gave a right to interest. But the bank claims interest from the date of the collection of the money by the sheriff, on the ground that he was ruled to pay the money into Court and did not do it; and that, on the 5th December, 1843, he was ordered to pay the money into the York Bank, as it should be collected.

We cannot, however, regard the order of December 5 as a rule upon the sheriff; it was intended only to substitute the bank for the Court, as the place of payment. Moreover, it was not served on the sheriff as a rule, and we cannot treat his knowledge of it as equivalent to a service; for a party is not considered as insisting upon a rule which he does not serve, any more than on a summons in like circumstances. A rule granted and not served is abandoned. We have often heard it said that the sheriff is always in Court, but we know that this is not true in fact, and whatever value the saying may have as a fiction, it certainly cannot avail to convict him of a breach of his official recognisance for not noticing a rule never served on him.

Even the original rule seems to have been abandoned; for the parties treated the money as in Court during the two or three years they were contending about its distribution. It could not be treated as a demand by the bank for its share of the money, for its right to make a demand was not decided till nearly three years afterwards. Until then none but the Court had a right to the money as against the sheriff, and it could and would have enforced its right at any time on the motion of a claimant. Besides this, the only proper penalty for the sheriff’s disobedience of the rule of Court is, that he is in contempt and liable to attachment. The parties cannot be allowed to wake up that proceeding for the purpose of claiming interest upon it, after having indulged it in sleep for over six years. And the plaintiff might be in danger of the statute of limitations if the rule of August, 1843, should be regarded as equivalent to a demand: 9 State Í2. 120. The interest should have been calculated from the date of the actual demand made after the decree of distribution.

Judgment. — June 6,1853. This cause came on for hearing at the present term and was argued by counsel, and thereupon it is considered that there is error in the judgment of the Court of Common Pleas, and that- therefore the same be reversed; and this Court now proceeding to render such judgment as the said Court of Common Pleas ought to have rendered, it is further considered that the plaintiff do recover from the defendant the sum of $8601 78, together with his costs: and it is ordered that the record be remitted to the said Court of Common Pleas, in order that this judgment may he carried into execution.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Haus versus Palmer.
    1. Though a legatee may release or renounce a legacy, and thus become a competent witness to prove a will, yet he cannot make himself competent by assigning his interest to another. Search’s Appeal, 1 Sams 108, overruled.
    2. The presence of two disinterested persons as witnesses, at the making of a nuncupative will, is necessary to its validity.
    3. It is necessary to the validity of a nuncupative will that each requisite be very clearly proved by two witnesses, to wit, its substance, the intent to will, the rogatio testium, and the necessity that prevents its being reduced to writing.
    4. The general rule requiring all wills to be in writing is intended to be as nearly universal as possible, and the exception in favor of nuncupative wills must be very strictly administered, and confined to cases of necessity.
    5. Ignorance of the general rule, or carelessness about attending to it when the testator is conscious that his sickness is unto death, or mere aversion to be troubled about it, does not constitute such necessity.
    6. On an issue to try the validity of a nuncupative will, the declaration ought to contain the substance of the will offered to be proved, or it ought to appear in some part of the record.
    Error to the Court of Common Pleas of Oentre county, on a feigned issue, directed by the Register’s Court to try the validity of a nuncupative will, alleged to have been made by Susanna Haus, deceased. The declaration does not set out any will, and there is no copy of it connected with the record; hut it alleges that one was made, and avers that, in making it, the testatrix did comply with all the requisites specified in the Act of 1833, relating to nuncupative wills; and on this averment the issue was joined. The persons intended to be benefited by the will, were, Barbara Palmer, an only sister of the decedent; Mary Norman, a niece, daughter of Mrs. Palmer; Philip Wolf, an only brother; and Jacob Haus, the husband. The will was disputed by the husband; and Mary Norman assigned her interest to her mother, Mrs. Palmer, in order to become a witness. Of consequence, the issue was framed between Barbara Palmer and Philip Wolf as plaintiffs, and Jacob Haus as defendant.
    The two main witnesses on the trial were Sarah Moore and Mary Norman. As to the substance of the will, they testified that Mrs. Norman and Mrs..Palmer were to have testatrix’s clothes; the husband was to have a good bed and what else he needed; and the rest was to go to her brother and sister: the husband was to have the house and land as long as he lived, and then it was to go to her brother and sister.
    As to the intention to make a will, Sarah Moore testified that the old woman, on introducing the subject, said, that “ after she was dead” the above disposition should be made. Mrs. Moore suggested, that she ought to have a will written, and expressed a doubt whether her evidence would answer. Mrs. Haus said, “ Why not ? the deeds and notes are in my name: nobody can come at my property : it will all have to go to my brother and sister.” Mrs. Palmer afterwards repeated the suggestion, and Mrs. Haus said, “ Let me alone: I have done all I can do: you have all heard what I have said.” Mary Norman’s testimony was of the same character, except that she said that Mrs. Haus introduced the subject by saying “ she was about to tell us what to do with her things.” On the day before she spoke about making a will, a.nd thought she could speak about it next day.
    As to the calling upon persons to bear witness to the will, the form of the Act was not pursued. Mrs. Moore says, that when she came in, Mrs. Haus said, “she was glad she had come,” and then went on to state what she wanted to be done after she was dead.
    As to the condition of Mrs. Haus’s health, and the necessity of dispensing with a written will, it was testified that the alleged will was made at her own house, on July 12, 1852, in the forenoon; that she kept her senses until she died, on the 16th of July, in the afternoon; that in the interval she was averse to speaking, and did speak very little, her disease.being in her throat; that on the 11th she had talked about making a will, and said she would speak about it next morning if she could; that three or four days before that, she had talked about making a will, but said she was so sick she did not feel like doing anything; that she then had no hopes of recovery; that she had been sickly for a good while, and was confined to her bed over two weeks before she died.
    The verdict was in favor of the plaintiff.
    The only errors assigned, that need to be noticed, were
    1. The admission of Mary Norman as a witness.
    2. The refusal of the Court to affirm the defendant’s second proposition, “ that the alleged will has not been made in such extremity of last sickness as precluded a written will.” The Court submitted this to the jury, with instruction, that if, after the making of the verbal will, Mrs. Haus was in a condition of body and mind fit to make a written will, the 'verbal one is not good,
    3. The refusal of the Court to affirm the fourth proposition of the defendant, “ that if the jury believe from the evidence, that, for several days before the making of the alleged verbal will, the de-' ceased was fully conscious of her situation, and that her disease must shortly terminate in death; that the subject of making her will was present to her mind, and that she had afterwards full time and opportunity to have her will put in writing, the plaintiffs cannot recover.”
    4. That the Court neglected to instruct the jury that a married woman cannot make a nuncupative will.
    It did not appear that the latter point was raised in the Court below.

      McAllister and Qurtin, for the plaintiff in error.
    — Mrs. Norman could not make herself competent by assigning her interest. The case of Search’s Appeal, 1 Harris 108, is anomalous. It follows the cases which had their origin in Steel v. Phœnix Insurance Company, 3 Binn. 306, when it ought to have followed Post v. Avery, 5 W. & Ser. 510, which overrules them. And if this is so, she cannot be a witness. The law requires two witnesses to such a will, and they, must necessarily be present as witnesses: Hawes v. Humphrey, 9 Pick. 350; Sears v. Dillingham, 12 Mass. 361. There was no such surprise or urgency in this case as to call for a verbal will, and on all the facts the Court ought to have said so : Porter’s Appeal, 10 State Rep. 258. The fact that Mrs. Haus was a married woman, clearly appears, and the Court ought to have instructed the jury, that the Act of April 11, 1848, § 7, does not authorize her to make a verbal will.

      Lynn and Hale, contrá.
    — The competency of Mrs. Norman is proved by the cases of Kerns v. Soxman, 16 Ser. & R. 315; McIlroy v. McIlroy, 1 Rawle 433; Search’s Appeal, 1 Harris 108; see also 4 State Rep. 373. The cases from Massachusetts are founded on a statute differing somewhat from ours. As to the condition of Mrs. Haus, the Court could do nothing else than leave that to the jury, and their instructions were correct. The point as to Mrs. Haus being a married woman cannot be raised here: 5 W. & Ser. 87; 3 State Rep. 50; 1 Id. 374; 6 Id. 483; 7 Id. 108.
   The opinion of the Court was delivered by

Lowrie, J.

— The Court below followed Search’s Appeal in the admission of Mrs. Norman as a witness; but that case is based principally upon the illegitimate line of decisions begotten by the case of Steel v. Phœnix Ins. Co., 3 Binn. 306, which were all overruled by Post v. Avery, 5 W. & Ser. 510. The other cases relied on in Search’s Appeal contain the principles, that a legatee releasing (not assigning) his claim, may be a witness to prove the will: Vin. Ab. Tit. Evidence, F. PI. 53; and that legatees, or distributees, releasing all claim upon the executors or administrators, as to the matter in controversy, may be witnesses in actions to recover assets of the estate: 1 Ser. R. 275; 7 State Rep. 815; 13 Mass. 393; 9 Johns. 123. But these principles do not include the case of a devisee or legatee assigning his claim, in order to prove the will on which his claim depends; for no one is bound to accept a benefit thrown upon him by testacy or intestacy, and if he rejects it, he is without interest; whereas, one who assigns the benefit first accepts it, and then, if he wants to be a witness, gets clear of it for a reward proportioned to the distinctness of the testimony which he is expected to give. Our law does not punish champerty as a crime, but it does not encourage it, nor by its very rules expose people to the temptation of perjury or subornation of it.

In some states, a devise or bequest to a necessary witness is void; and such must be practically the case wherever interest produces incompetency. It is practically so, because the estate must be released from the claim before the legatee or devisee can be admitted to prove the will. If he does not release or renounce, he ought to be a party to the issue to test the validity of the will, and he cannot affect the issue by his testimony. The principle that was restored by Post v. Avery excludes Mrs.-Norman as a witness.

It has been further argued, that a nuncupative will is of no validity, unless there were two disinterested persons present at the making of it, who were then competent as witnesses: and as it may be supposed that the objection already discussed may in some way be overcome, we feel bound to consider the competency of Mrs. Norman in this aspect. The proposition is correct. The evidence of a verbal will is part of its very essence. The law makes it so, when it requires that some persons present shall be called upon by the testator to bear witness that such is his will, and that two of them must prove it. When the law requires persons to bear witness, it means that they shall be competent as witnesses. We make it speak nonsense, if we make it mean that the parties shall bear witness, a phraseology which, even in common parlance, is not free from absurdity. It is of great importance that there should be disinterested persons present at the making of such.wills, and the law intended to provide for this. It may be that the rule sometimes defeats verbal wills. But what of that ? People often die unintentionally intestate; but the general rule is too valuable to be endangered by accommodating it to isolated cases of hardship.

We are now to speak of the case on the supposition that such evidence as is here presented should legally appear. The law is very fully expounded in Priscilla Yarnall’s Will, 4 liawle 46, Gertrude Ericke’s Will, 4 W. & Ser. 360, and Werkheiser’s Will, 6 Id. 189; and we shall repeat as little of it as possible. The substance of the will, the intent to will, the call upon two or more disinterested persons to bear witness to it as a will, and the necessity of resorting to and depending upon a verbal will, must each and all appear with great clearness, in order to amount to proof. Here the intent was doubtful, the witnesses wanting, and the necessity not appearing, and the Court would have been justified in affirming the defendant’s second point, and would have been bound to do it, if, instead of a general point, the defendant had embraced in his point the substance of the evidence.

The general rule requiring all wills to be in writing, is intended to be as nearly universal as is possible, and the exception in favor of nuncupative wills must be very strictly administered. It is a partial substitute for a written will in cases of necessity. A necessity not arising from ignorance; for, besides the difficulty of proving or disproving ignorance, it is plain that the form of the exception is expected to be known, in order to be followed. A necessity not arising from mere carelessness, for that would be an abuse of the term. The necessity intended is that which arises when the testator is surprised by approaching death, and has not time to make the form of disposition intended by the general rule of law. Such was not this case. The decedent knew her end was approaching for some days before the making of the alleged will, and made no use of her time, though advised on the subject. And when she did declare her wishes, it seems that she was rather unwilling to be troubled about a will, or ignorant that one was necessary, than unable to make it. We think, therefore, that the Court ought to have affirmed the defendant’s fourth point.

We may be allowed here to endeavor to correct a matter of practice.

If there were a judgment for the plaintiff in this case, the record would give no valuable information as to the question decided. Every record ought to be complete in itself, and in framing an issue to try the validity of a nuncupative will, the will itself ought to be set out at length, and then a verdict and judgment sustaining it is conclusive of its validity and of its contents. Where the issue is raised by a declaration and plea, the will ought to be set out in the declaration.

Judgment reversed and a new trial awarded.


author: Black, C. J.

text:
    Hoke versus Herman.
    1. The ademption of a specific legacy does not depend on intention.
    2. If the thing specifically bequeathed does not remain at the death of the testator, there is an end of the legacy no matter how it may have been disposed of.
    3. If the legacy be of a debt, payment of the debt necessarily adeems the legacy.
    4. The legacy in this case was of a debt due by the legatee to the testator, who soon after making the will became insane. A partial payment of the debt was made to his committee, who, as well as the legatee, was ignorant of the will: Held, that the legacy was adeemed pro tanto.
    5. Blackstone v. Blackstone, 3 Watts 338, re-affirmed.
    Error to the Common Pleas of Yorlc county.

    This was an action of debt brought by Herman Hope v. Jacob Herman, executor of the will of Emanuel Herman, deceased, to recover a legacy.
    On the 1st November, 1844, Herman Hoke, the plaintiff, executed his note of that date, under seal, to Emanuel Herman, for the payment of $600, one year after date, with interest.
    On the 5th day of February, 1850, Emanuel Herman made his will in writing, of that date, which, after his death, to wit, on the 10th day of July, 1851, was proved.
    In the said will the testator bequeathed as follows, to wit: — • “ Item, I give and bequeath unto my said nephew, Herman Hoke, and his heirs, a promissory note of $600, with interest, which I hold against him at this time.”
    After making his will, Emanuel Herman became insane; and on the 4th day of November, 1850, under a commission of lunacy, a committee of the person and estate was appointed.
    After the date of the said will, Herman became indebted to Hoke, for money paid for and services rendered to Herman; and upon the settlement of the said indebtedness by the committee and Hoke, on the 18th of February, 1851, the amount thereof, to wit, $178.63, was credited on the interest on the note aforesaid, and a receipt was given to the committee by Hoke, in fulPof his claim; in which receipt Hoke acknowledged that the said claim was settled by a credit on the note. Neither party was at that time aware of the contents of the will. About $40 of the $178.63, accrued after the lunatic was placed under the charge of the committee.
    Emanuel Herman died on the 2d of July, 1851, having, never recovered his reason. On the 25th day of February, 1852, the committee filed his account, in which he was charged on the debit side, with the said note, and the amount of it was inventoried in the appraisement of the effects, and he was credited with $178.63, the amount above mentioned, as an “ account paid Herman Hoke.”
    At the death of Herman, the note was in existence with the payment endorsed; and the said note thus in part paid and endorsed, was delivered to the plaintiff by the executor.
    The plaintiff demanded from the defendant, out of the other assets of the estate, the sum of $178.63, with interest, from the 18th day of February, 1851; and there were assets of the estate, sufficient to pay the demand, if the plaintiff were entitled to recover. The question submitted was, whether the plaintiff was entitled to recover.
    Fisher, J. — The rule appears to be that where stock or choses in action are specifically bequeathed and do not wholly or partly exist at the time of the testator’s death, the legacy will be either totally or partially adeemed. The thing devised must not be extinguished or annihilated. In this case the bequest was specific, and by the consent of the plaintiff, a portion of the note bequeathed was extinguished by the credit endorsed upon it by testator’s committee, and consequently the balance only remained for the will to operate upon. That balance plaintiff has received, and therefore judgment must be rendered for the defendant.
    Error was assigned to the judgment.
    Campbell, for plaintiff in error.
    — The decisions as to whether, in cases of ademption, the intention of the testator is to be considered, are not consistent. The declaration of Lord Thurlow that the animus adimendi has nothing to do in a question of ademption, has not been universally received: 2 Halst. 423; 7 Johns. Ch. 264. In the civil law, ademption was a question of intention: Just. Lib. 2 tit. 20; Id. Lib. 32 tit. 3. That the ademption depends on intention, reference was also made to 2 Peere Wms. 332; 2 Ves. 640, Coleman v. Coleman; 2 Halst. 425.
    It was said that if the change of the thing devised be produced by statute or operation of law, or without the assent of the testator, the legacy will not be adeemed: Partridge v. Partridge, Cases Temp. Talbot 266; 7 John. Ch. 266, Walton v. Walton; 1 Roper on Leg. 240. The unauthorized act of an agent of the testator will not alter the will or affect an ademption: 8 Sim. 171, Basan v. Brandon; 11 Con. Eng. Ch. Rep. 380: Or if done by the testator under a mistake of fact: 3 Ves. 321, Campbell v. French. In the present case, the act of settling and crediting was done, not by the testator, but by the committee. It was said, that the thing bequeathed being not in whole or in part in existence was not a sufficient reason why the legatee should not receive the value of his legacy out of the general funds of the estate.

      Mayer, with whom was Evans, contó.
    — The legacy in this case is specific, and the note bequeathed has been received by the plaintiff ; but it is alleged that the note devised has not been received in the condition it might have been but for the settlement and credit. “ The principle of ademption by receiving the thing given is certainly that the thing given no longer exists ; for if after the receipt of it, it could be demanded, that would be converting it into a pecuniary instead of a specific legacy.Sir William Grant in Fries v. Morris, 13 Ves. 361. Much of the confusion in the books upon this subject, arises from a mixing up of the inquiry as to the character of the legacy with the question of ademption, the intention being very material to determine whether the legacy be specific or not, but having little to do with the question of ademption itself. In Blackstone v. Blackstone, 3 Watts 338, Gibson, C. J., lays down the law thus: “ That the annihilation of a specific legacy, or such a change in its state as makes it another thing, annuls the bequest, for reasons paramount to considerations of intention, is now firmly settled: Sleech v. Thornington, 2 Ves. 561; Drink-water v. Falconer, Ib. 623; Humphreys v. Humphreys, 2 Cox 184; and Birch v. Baker, Mosely 373.” “The principle,” says Mr. J. Coulter, in Ludlam’s Estate, 1 Karris 188, “ depends upon the entire change or destruction of the fund, security, or chattel specifically bequeathed.” Walls v. Stewart, 4 Harris 275.
    The case of Basan v. Brandon, 8 Sim. l7l, cited by the plaintiff, is one in which the corpus of the gift, the fund on which the will was to operate, could easily be identified, although it had undergone a change of form. The stock purchased without authority with the money given to the legatee was treated as his.
    The case of Campbell v. French, 3 Ves. 321, cited next, stands on different principles. Mr. Sumner adds in a note to the case: “ If a man by a subsequent will or codicil, makes a disposition different from a former one, under a false impression, the impulse of which is the foundation of his wish to change his former intent, such an act will be considered only as effecting a contingent presumptive revocation, depending on the existence or non-existence of that fact. 1 Williams Ex’ors 93; 1 Hagg. 378.”
    But in this case the portion of the note to which the credit was applied is extinguished. The adjustment between the plaintiff and the committee of the lunatic was proper. The note to the testator was then due. The payment cannot be recalled: 2 Rawle 118; 1 Id. 54; 9 Watts 462; 1 Barr 24.
    But the plaintiff had no title to the note till after the death of the testator. His interest accrued at the time the interest of the other legatees became vested in them. He had no interest in the chose at the time the credit was given. Its value at the death of the testator was the value of the legacy.

      If the plaintiff was entitled to receive the value of his legacy out of the general estate, this would be changing its character from a specific to a general or a demonstrative legacy.
   The opinion of the Court was delivered by

Black, C. J.

— Emanuel Herman executed his last will, bequeathing to the plaintiff a note made by himself (the plaintiff), and payable to the testator, for $600. The testator afterwards became insane, and so continued till his death. A committee was appointed of his person and estate, to whom the plaintiff, in ignorance of the will, paid $178.68 on the note. After the testator’s death the note with this credit endorsed was delivered to the plaintiff. He brings this suit against the executor to recover the amount paid. The sole question is, whether this payment under the circumstances is an ademption of so much of the legacy.

That this legacy is specific no one denies ; and that a specific legacy of a debt is extinguished, if the testator receive payment of it in his lifetime, is, as a general rule, not controverted. But the payment was made to the committee when the testator’s mind was a wreck, and when therefore his own act did not cause it. If it be true, as argued by the plaintiff, that ademption depends upon the intention of the testator and never occurs without the animus adimendi, the plaintiff is entitled to recover what was paid on the note, out of the funds which would otherwise go to the general legatees.

The rule seems to have prevailed in some of the old English cases, that the ademption was. a question of intention: (1 Equ. Abr. 302; 2 Vern. 681). On this principle'it was held, that when the testator called in the debt, the gift of it by his will was extinguished ; but not so when the debtor paid it of his own accord; (1 Atk. 508); because in the former case the animus adimendi was clear enough, while in the latter it was naturally presumed not to exist. But all this has been exploded long ago; and no such distinction is taken in the modern cases. (2 Ves. 264; 1 Pierre W. 464). It was finally settled that the only rule was to see whether the subject of the bequest remained in specie at the time of the testator’s death; for if it did not there was an end of the legacy, no matter how it may have been disposed of: (2 Cox 180). - And therefore when the debtor became bankrupt, the receipt of a dividend by the testator was held to be an ademption pro tanto: (2 Bro. 108). This seems to have been adhered to ever since, except in one case (2 Ves. Jr. 639); and that is said by Lord Alvanly, (4 Ves. 574), not to be clearly the other way.

The opinion of Chancellor Kent in Walton v. Walton, (7 Johns. Chanc. C. 264), is cited by the plaintiff. But I do not think it sustains him. The chancellor says that the character of the -legacy, whether specific or demonstrative, is essentially a question of intention ; and so it is without doubt. But he does not say, and the ease did not require him to say, whether ademption of a legacy admitted to be specific does or does not depend upon intention.

But the decisive authority on the point is found in our own books. In Blackstone v. Blackstone, (3 Watts 338), a bequest of bank stock, which after the date of the will was exchanged for a bond, with the declared intention of keeping the bond for the legatees in lieu of the stock, was held to be adeemed for reasons paramount to all considerations of intention. The legacy having ceased to exist in specie, no matter how its extinction was caused, neither the bond taken as a substitute for it, nor its value, could be demanded from the executor.

We hold therefore that if a thing bequeathed in a will by such a description as to distinguish it from all other things be disposed of, so that it does not remain at the death of the testator, or if it be so changed that it cannot be called the same thing, the bequest is gone. If such legacy be of a debt, payment necessarily makes an end of it. The legatee is entitled to the very thing bequeathed if it be possible for the executor to give it to him; but if not, he cannot have money in place of it. This results from an inflexible rule of law applied to the mere fact that the thing bequeathed does not exist, and it is not founded on any presumed intention of the testator.

In the present case payment to the committee was as complete an extinguishment of the debt as any payment could have been if made to the testator in sound health. The committee had a right to receive and give credit for it, and even to sue for and recover it. It follows that the judgment of the Common Pleas in favor of the defendant was right.

Judgment affirmed.


author: Lewis, J.

text:
    Parker versus Urie’s Executors.
    1. A son, being on bis death-bed, expressed his desire to his father that a person designated should receive $500 out of his estate; and the father promised that this should be done, and the son died intestate and unmarried, the father being his heir. The father administered on the estate of his son,' charging himself with a bond for $800. Afterwards the father being absent from home, without access to his papers, and being about to die, requested one of his executors then present to pay out of the said obligation $500 to the person designated by the son, and in words transferred to him that amount of it, and the executors collected the $800. It was held that the person ' designated by the sou could maintain a suit against the executors for the recoveiw of the $500.
    2. Where in the case stated the facts were admitted, and the question whether the plaintiff was entitled to recover was submitted to the Court, and in the Common Pleas judgment was given for the defendants; the matter will be treated in this Court as a demurrer to evidence, and neither party asking a venire, this Court may draw a proper inference from the facts and enter a final judgment for the plaintiff on the case stated.
    Error to the Common Pleas of Cumberland county. j
    This was an amicable action in which James Parker, guardian of Thomas D. Parker, was plaintiff, and Richard Parker and Robt. C. Sterrett, as executors of the will of Thomas Urie, deceased, were defendants. The action was to be in the nature of a count for money had and received for the use of the plaintiff. The case to be tried without regard to the form of action or the proper joinder of parties, the money in question being considered to be in the hands of the defendants.
    The following facts were agreed upon as a special verdict, with leave to either party to take out a writ of error without oath or bail.
    Thomas Urie resided in Cumberland county, and owned a large amount of real and personal estate. Early in the year 1849 he lost a son by death who had always lived with him, and for many years attended to his business, and had been engaged also in business for himself, named Thomas Davidson Urie, who' died unmarried. The plaintiff, Thomas Davidson Parker, was called after this son, and was a relation. When. Thomas D. Crie was on his death-bed, he told his father, Thomas Urie, that he wished certain persons whom he named, to receive of his estate specified articles and sums of money as gifts from him. Among this number, he desired that Thomas Davidson Parker, having been named after him, should receive five hundred dollars. His father, Thomas Urie, promised him that his request should be fulfilled, and after the death of his son Davidson, took out letters of administration on his estate, and took possession of all his property. On the 17th March, 1849, he filed an inventory of the estate of his son, in which he charged himself, among other things, with a bond of David Miller, dated September 3d, 1847, for $800. All the gifts or bequests of Thomas D., made as aforesaid, were strictly carried out in accordance with the spirit of the request of the son and the promise of the father, during the father’s lifetime, with the exception of the payment of the $500 to Thomas D. Parker, and he frequently expressed his intention of paying this. Thomas Davidson Urie’s' estate was more than sufficient to pay all the gifts and bequests that he made.
    On the 30th day of July, A. D. 1849, Thomas Urie (the father) employed counsel to draw up his will, hy which he disposed of all his property among his surviving children, grandchildren, and some others. (The will was left in the possession of counsel, who resided in Carlisle.) Sometime in September, A. D. 1849, Thomas Urie made a visit to Lewistown, in Mifflin county, where he was suddenly taken ill. He sent for an attorney in that place, to whom he communicated the fact of his having made a'will, which was then in Carlisle, and that he wished to make some alterations. A codicil, drawn to his instructions, was executed, and by it Mr. Urie made a different disposition of part of his property from that made in the will.
    About an hour after the execution of the codicil above mentioned, Thomas Urie called his counsel again to his bedside, and said he had forgotten one thing. He then mentioned the dying wish of his son Thomas D. Urie, that Thomas D. Parker should receive the $500 aforesaid; and said he desired that to be carried out, and that he wished his executors to pay Thomas D. Parker five hundred dollars. The counsel mentioned to him that he would have to write another codicil — that the executors would not be safe in paying it without its being in the will or codicil. He replied that he was too weak to sign another, but that he should tell Richard Parker (one of the executors appointed in his will) to pay over five hundred dollars to Thomas D. Parker, and he would do it. The counsel again stated that it would not be good in his opinion, unless it was in the will or codicil. Mr. Urie then mentioned this bond that he held against David Miller for the sum of $800, and called upon the by-standers to witness, that “ he now transferred $500 of that bond to Thomas D. Parker,” and requested the counsel to inform Richard Parker that he had done so.
    Shortly after this Richard Parker arrived in Lewistown, and he being in the room with Urie, the latter remarked, “ Richard, I want you to pay $500 of that note of David Miller’s to Thomas D. Parker.” The council remarked to Urie that he had better have that put in the codicil. Urie said, “ No ; the bond was not his, — that he did not want it to be considered a gift from Mm,• — that it was Ms son Davidson's.” The counsel then remarked to him, that he had better make a transfer of it. Urie remarked, “ that the bond was too large, — more than the amount that Thomas D. Parker was to get,” and then asked if a verbal transfer would not be good. The counsel remarked that it would. Urie then turned round to Richard Parker and said, “ Richard, I transfer $500 of the David Miller bond to Thomas D. Parker, and I wish you to pay that amount to him.”
    Mr. Urie died shortly after, and his will and the codicil were duly admitted to probate in Cumberland county. (It is understood that he died on the same day on which the codicil was made.)

      At the times of the conversations just related, and at the time of Urie’s death, the bond aforesaid was at his place of residence near Carlisle, and could not be formally delivered.
    It is admitted that after the death of Urie, the executors received the whole amount of the Miller bond of $800 and the interest, after notice to Miller and the executors of the above-mentioned transfer.
    If on these facts, the plaintiff was entitled to $500 of the money for which said bond was originally given by David Miller, then judgment was to be entered for the plaintiff for that sum, with interest from the 1st day of March, 1849. If otherwise, then judgment for defendants.
    (xRAHAM, J., was of opinion that this was not the case of a donatio causa mortis, as delivery was said to be essential to such: 2 Blaclc. Gom. 445; 2 Wes. Jr. 120; 2 Whar. 24. Also, that it was not valid as an assignment, as wanting a consideration to support it: 14 Pide. 198. That from the circumstances of the case a trust was not to be implied in Thomas Urie, in favor of the plaintiff: that it was doubtless his intention that his executors should pay $500, but that he used a mode of indicating his intention which the law did not sanction; that it' did not sanction any death:bed disposition of property other than by actual delivery, or by will written or nuncupative.
    Judgment was entered for the defendants.
    Error was assigned to the judgment.

      Miller, for plaintiff in error.
    — In this case a trust existed in the father: Lewin on Trusts, 24 Law Lib. 15; Id. 44. A verbal trust is good as to personal property: 10 Mod. 404; Willis on Trustees 49, 10 Law Lib.

    But the law raises a trust in the father from the facts in the case, for the father would not be permitted to take his son’s effects and retain them, having, by his promise, prevented his son from making a will in favor of T. D. Parker.
    The law will imply a trust from a promise, if it be acted on: 1 Wen. 295; Willis on Trustees 70. He that accepts a trust by acting upon it, takes it for the benefit of the person for whom he was trusted: Id. 121-2. Implied trusts arise where it would be against equity to allow the party to hold otherwiseStory’s Eq. 1195-6; 1256-7 — 8; Lewin on Trusts 38-9. A devise of land made under a parol promise or agreement that the devisee will hold the land in trust for another, creates a trust: 6 Barr 425, McKee v. Jones; 1 Watts 163; 5 Id. 200.
    2. The promise by the father to the son was not a nudum factum, and the parol assignment was not invalid for want of consideration. The son may have been induced by the promise of the father not to make a will; and if só, a trust was created: 5 Barr
      162, Mercer v. Lancaster; 1 Watts 163, Hoge v. Hoge; 5 Id. 200. The parol transfer was of a part of the estate which the son left. Where a trust is created, a consideration is not necessary: 7 Barr 179; 3 Peere Williams 222. As to parol dispositions, reference was made to 10 Mass. 426; Lewin 205.
    It was further said, that this might be available as a donatio causa mortis: 3 Binn. 366. Delivery, in this case, was impossible.

      Sharpe, with whom was Henderson, contri!.
    It was said that delivery was essential to a parol gift of a chattel or chose in action: 2 Kent 438; 7 Johnson 25; 3 Vesey 431. That it was not a donatio causa mortis, was cited 6 Harris 328, Headley v. Kirby.
    It was said, that the cases mainly relied on on part of the plaintiff in error, were cases wherein a person was induced by the trustee to die intestate, or to make a will in his favor; and that the former was not the case in this instance. It was said that the son might have made a will if he had chosen to do so. Also, that the alleged gift not being executed, the plaintiff had no right to the $500. An intent to transfer is not sufficient: 7 Barr 100. An equitable assignment requires & consideration to support it: 1 Barr 445; 18 Johnson 145.
    June 21,1853,
   The opinion of the Court was delivered, by

Lewis, J.

— Where one on his death-bed expresses a wish to his heir-at-law that certain persons, whom he names, shall receive of his estate specified articles and sums of money, as gifts from him, and the heir promises him that his request shall be fulfilled, the necessary implication is, that the promise is to be performed after the death of the promisee, and that the consideration is, that the promisor shall succeed to his estate under the intestate laws. The law implies this consideration from the facts, and it is not necessary to prove that the parties particularly expressed it in the contract. If the party to whom the promise was made, disposes of his estate so as to disinherit the heir, the latter would be relieved from the performance of his contract, not because there was no original consideration for it, but by reason of the failure of the consideration expected, and which formed the inducement to enter into the engagement. On the other hand, if the promisee, relying on the promise, make no other provision, by will or otherwise, for the objects of his bounty, but die intestate, thus leaving his estate to fall into the hands of the heir, to an amount greater than the specified donations, the heir is bound, in conscience and in law, to fulfil the contract. If the promise be made by a father to a son, the moral obligation is strengthened by reason of the existing relation, and the confidence which the one would naturally repose in the other. If the father afterwards, when seized with sudden illness, and about to die, away from his residence, and without the means of access to his papers, refers to a bond belonging to his son’s estate, and not yet collected, and by parol assigns to the use of one of the persons so designated by his son on his death-bed, so much of the bond as will be sufficient to satisfy five hundred dollars, being the amount which was to he paid to him, and directs his executor, then present, to pay it, such assignment is upon sufficient consideration, and is valid, although not reduced to writing.

If the executors of the father afterwards collect the money due on the bond, the equitable assignee of the portion thus transferred, may maintain an action against them for money had and received to his use.

Upon the facts stated on this record, the jury would he hound to draw the necessary inference respecting the consideration. They could properly draw no other than that herein stated; and where the parties have agreed upon the facts, and submitted the matter to the Court, upon the question “ whether the plaintiff is entitled to five hundred dollars of the money for which the bond was originally given,” and neither party applies for a venire, we carry out their agreement by treating it, for this purpose, as in the nature of a demurrer to evidence. We therefore draw the proper inferences from the facts, without sending the cause hack to a jury, and enter a final judgment on the case stated.

Judgment reversed, and judgment for plaintiff in error for five hundred dollars, with interest, from the 1st March, 1819, together with costs.


author: Knox, J.

text:
    Urie’s Executors versus Irvine and Wife.
    A testator in the eighth item of his will bequeathed to his grandson by name the sum of $500, “ in addition to his share of the residue” of his estate as thereinafter given. In the thirteenth item he bequeathed to him by name a gold watch and certain stock. In the twelfth item he provided, “ As to all the rest and residue of my estate real and personal,” &e., “ I give and bequeath the same to he divided equally per capita between my grandchildren as follows,” to wit, the children of my deceased daughter Sarah, except, &c.: the children of my deceased daughter Jane, except, &c., “ the child of my deceased daughter Catherine Culbertson&e.: they however to receive only such portion of this residue as shall he necessary to equalize them with the bequests with my other grandchildren, estimating the bequests heretofore given to their mother and them. Catherine had two children, viz.: a son, the devisee in the 8th and 13th items, and a daughter, who was one of the plaintiffs:
    It was held that the daughter was entitled as well as the son to a portion of the residuary estate.
    Error to the Common Pleas of Cumberland county.

    This was an amicable action in which John Irvine and Ellen, his wife, were plaintiffs, and Robert Sterret and Richard Parker, executors of the will of Thomas Urie, deceased, were defendants. The agreement was as follows:
    “ The parties agree to the following facts, and that they be considered in the nature of a special verdict, with leave to either party to sue out a writ of error, without oath or bail.
    “ Thomas Urie died on the 4th October, 1849 (in the eighty-third year of his age), having first made his will dated the 30th July, 1849, and codicil 2d October, 1849, which was afterwards duly proved and registered in Cumberland county. All and every part of that will shall be considered as found in'this case as if here incorporated. Catherine Culbertson, a daughter of the testator, who died during his lifetime, left two children who survived the testator, to wit, Thomas U. Culbertson and Ellen E. Culbertson, now the wife of John Irvine, the present plaintiff.
    “ The plaintiffs in right of Ellen E. Irvine claim to veeover as a residuary legatee, under the twelfth clause of the will of Thomas Urie, deceased.
    “ If she be entitled as such, then judgment to be entered for the .plaintiffs for $3000; otherwise for the defendants.”
    The 8th item of his will was as follows: “ I bequeath to Thos. Urie Culbertson, the son of my deceased daughter, Catherine, the sum of $500, in addition to his share of the residue of my estate, as hereinafter given.”
    The 12th and 13th were as follows: “ 12th, As to all the rest and residue of my estate, real and personal, after the payment of my just debts, funeral expenses and charges, I give and bequeath the same to be divided equally, per capita, between my grandchildren as follows, to wit, the children of my deceased daughter, Sarah Trimble (except Mary Frances Wiley, whom I have already provided for), the children of my deceased daughter, Jane Chambers (except Thomas Davidson Urie and Ellen, whom I have already provided for), the child of my deceased daughter, Catherine Culbertson, the child of my deceased daughter, Mary Williamson, and the children of my daughter Eleanor Law, they, however, to receive only such portion of this residue as shall be necessary to equalize them with the bequests with my other grandchildren, estimating the bequests heretofore given to their mother and them. 13th. I give and bequeath to my grandson, Thomas Urie Culbertson, my gold watch, when he arrives at lawful age, and also I bequeath to him the stock which I hold in the Cumberland Yalley Railroad Company and the Harrisburg Bridge Company.”
    Opinion by Graham, J. — “ After a careful perusal of the whole will, I cannot resist the conclusion that old Mr. Urie, the testator, intended that all his grandchildren should be participants of his bounty. And they all do participate, unless Ellen Culbertson, the plaintiff, and daughter of testator’s deceased daughter, Catherine, is excluded. The testator makes his grandchildren his residuary legatees, and describes them as the children of his daughters, without designating any of the grandchildren by name.” He quoted the 12th item, and proceeded as follows:
    “ Mrs. Culbertson had two children: a son named Thomas Urie, and a daughter named Ellen, and the question presented is, whether the bequest by testator to the child of his deceased daughter, Catherine Culbertson, includes the son and excludes the daughter, or whether both were intended by their grandfather as objects of his bounty.
    “ A bequest to the child of a deceased daughter, when there were two children, would be not only ambiguous and uncertain, but unintelligible and void for uncertainty. It, therefore, becomes necessary to' resort to the rules of construction applicable to cases of this kind, and by a reference to adjudicated cases the question presented is easily solved.
    “ In 2 Jarman on Wills, 108, the rule is thus stated: ‘ It often happens that a gift to children describes them as consisting of a specified number, which is less than the number found to exist at the date of the will. In such cases it is highly probable that the testator has mistaken the actual number of the children, and that his real intention is that all the children, whatever may be their number, shall be included. Such, accordingly, is the established construction, the numerical restriction being wholly disregarded.’ Thus in Tompkins v. Tompkins, 2 Vesey, Sr. 564, where a testator, after bequeathing twenty pounds to his sister, gave to her three children fifty pounds each, and the legatee had four, Lord Hardwicke held that they were all entitled. (See also the different cases in same book, pages 108-9.)
    “ In Powell on Devises, 327, it is said, £ That a gift to children, 'as consisting of a definite number, is not invariably confined within that numerical limit; but has, in many instances, where the actual number of children existing at the making of the will has exceeded the number described, been extended to the whole.’ (See also cases cited in same book, pages 327-8.)
    ££ In accordance with the foregoing rules of construction was the case of Yernor’s Ex’rs v. Fisher et al., reported in Brightly’s Reps. 412, decided in the District Court of Lancaster, and after-wards affirmed by the Supreme Court of this state. In that case testator devised two-thirds of a plantation to the two daughters of his deceased brother, and there were three daughters. Held, that the devise extended to all the daughters.
    “ The cases cited would rule the present case, if the question depended alone on the 12th item of the will. But defendants’ counsel contend that the 8th item removes the ambiguity of the 12th item, and designates the son to the exclusion of the daughter, as the person intended by the term child in the 12th item. The 8th item is as follows: ‘ I bequeath to Thomas Urie Culbertson, the son of my deceased daughter Catherine, the sum of $500, in addition to his share of the residue of my estate as hereinafter given.’
    “ The argument is, that as Thomas, the son, is here designated as a residuary legatee, and as the term child in the 12th item ■ is singular, and cannot include Thomas and his sister Ellen, it must necessarily mean Thomas, who had been named in a preceding item as an intended residuary legatee.
    “ I cannot concur in the views of defendants’ counsel, in assigning the office of elucidating the 12th item to the 8th.
    “ I think the testator intended nothing more by the 8th item than to give his namesake, Thomas Urie Culbertson, five hundred dollars more than the other residuary legatees, and he has declared this intention in plain and concise language. But Thomas still remains a residuary legatee, although his sister Ellen is included in the residuary clause; so that this construction fully meets the intention expressed in the 8th item of making Thomas a residuary legatee.
    “ But does not the 8th item fortify plaintiff’s claim as a residuary legatee ? It shows testator knew his daughter Catherine had a son named Thomas Urie Culbertson, and in that item he is named in full. But in the 12th item the residuary legacy is given to the child of his deceased daughter Catherine. If he knew his daughter Catherine had also a daughter, it is very improbable that testator would designate the son to the exclusion of the daughter by the word child, which is equally applicable to either, and particularly when in the next item (the Í3th) he again designates his grandson by name, in giving to him a gold watch, &e. Had testator intended that Thomas alone, to the exclusion of his sister, should participate in thb residuum of his estate, he would have designated him by name, as he did in the preceding and subsequent items, and not used the ambiguous term child, which is as applicable to a daughter as a son. He would have called him his grandson, Thomas Urie Culbertson (for it appears the old gentleman loved to designate his namesake by his name in full), or the son of his deceased daughter Catherine.
    “ When testator commences the 12th item with the declaration that as to all the rest and residue of his estate, real and personal, after the payment of Ms debts, &c., he gives the same to be divided equally ‘ per capita,’ between his grandchildren, and then designates all his grandchildren, except that in thus designating them he says, ‘the child of my deceased daughter Catherine,’ he must have supposed that Catherine had but one child, or intended children; for no man who understood the English language would think of designating one of two, children to the exclusion of the other, by the word child.

    “ This hypothesis is strengthened by the latter clause of the 12th item, in which he directs the mode in which the children of his daughter, Eleanor Law, are to be equalized, in the language of testator, ‘ with the bequests with my other grandchildren,’ showing evidently that testator supposed he had provided for all his grandchildren.
    “ Again, (and we must look at the whole will in giving a construction to any part of it,) in the 9th item, the benevolence of old Mr. Urie, and his kind regard for his relations is evinced by giving a legacy of two hundred and fifty dollars to his sister, Catherine Jacobs, not because she needed it, but in the language of testator, ‘ as a token of my affectionate remembrance.’ This, it is true, would be entitled to no consideration in a case where the language of the will was plain and unambiguous; but in the present case it has upon my mind a tendency to show that the testator would not pass by his granddaughter, Eleanor Culbertson, when all his other grandchildren were liberally provided for, without some token of his affectionate remembrance. If her existence was obliterated from his remembrance at the time he made his will, by the imbecility of extreme old age or other causes, then the law kindly relieves against the omissions occasioned by the defects of recollection, and under the term child, as used in this will, places the plaintiff in the same position of testator’s other grandchildren as one of the legatees under his will.
    “ If the testator, at the time he made his will, knew and recollected that his deceased daughter, Catherine, left two children surviving her, and did not use the word child for children, for upon this position the defence must rest, then we have the singular and to my mind most unsatisfactory hypothesis, that a man of the intelligence of old Mr. Urie, with a full knowledge that his daughter Catherine had left two children, a son and a daughter, in his last will would use the word child to designate the son as the object of his bounty, and to exclude the daughter from any portion of his large estate,
    “ For the reasons stated, I consider Ellen Culbertson, now Irvine, entitled to recover as a residuary legatee under the will of the testator, and direct judgment to be entered for plaintiffs for three thousand dollars.”

      Watts, with whom was P aricar, for plaintiffs in error.
    — It was contended that it was only where there was an ambiguity in the language of the will applicable to the facts pertaining to it, that the rules of interpretation will construe a specific number of children or grandchildren with a greater or lesser number; and this is predicated on a mistake of the testator as to the facts. Here it does not appear that the testator was ignorant that his daughter, Catherine, had left two children, a son and a daughter. It was said that in this case theré was no ambiguity in the will itself, as the testator names his grandson as the object of his bounty. In the eighth clause of his will he bequeaths to him by name, $500, “ in addition to his share of the residue of my estate as hereinafter given;” and in the thirteenth clause he names him again. It was ■ further said, that there was no equality amongst any one family of his grandchildren. The testator had five daughters, for whose children he provided specifically per capita, but not equally.

      Hepburn, for defendants in error.
    — It was said there- was no mistake as to the eighth and thirteenth items of the will; and it was said that if the testator meant no more in the twelfth clause than he had meant in the eighth and thirteenth, it was strange that he would use the word child when disposing of the larger portion of his estate, instead of distinctly indicating the son. It was contended that he had mistaken the number of his daughter’s children; that his object was to give to his grandchildren, as a class, the residue of his large estate; and that according to a rule of construction, all of that class should take; that their taking will not be prevented by a mere numerical mistake: 2 Jarman 108; also the other cases cited by the Court in this case; and also 1 Cox 79; 2 Br. Ch. 85-86; 2 Cox 258; 19 Vesey 125; 1 Russell & M. 71; 4 Cond. E. C. 328; 1 Russell 496; 1 Br. Ch. 30-31.
    June 21,
   The opinion of the Court was delivered, by

Knox, J.

— The law of this case is correctly and aptly stated by the learned judge who ruled it in the Court below. We concur in his opinion for the reasons therein stated.

Judgment affirmed.


text:
    Thomas versus Thomas.
    1. When no evidence of a disputed fact is given it is the duty of the Court so to instruct the jury.; and if requested to do so, it is error to refuse such instruction.
    2. But when there is any evidence at all, it must he submitted to the jury.
    3. When the evidence is circumstantial and there are facts on both sides, it is peculiarly the duty of the jury to determine their weight and value.
    4. When the preponderance of the evidence is manifestly on one side, the judge should give his opinion freely by way of advice to the jury; but if he refuses to do so it is not error.

      Error, to the Common Pleas of Mifflin county.

    This was a proceeding by scire facias on a judgment. A judgment was entered in Mifflin county -on May 9, 1838, in favor of Isaac Thomas v. Jesse Thomas, entered on a bond and warrant of attorney to confess judgment; the same being in the penalty of $4000, dated April 20, 1838, conditioned for the payment of $2000 with interest, in one month from date.
    An amicable scire facias was agreed on, and judgment was confessed on April 12, 1843. '

    On 31st January, 1848, the scire facias in this case was issued in favor of Isaac Thomas v. Jesse Thomas, and Troxell and others, terre tenants. The sheriff notified a number of persons as terre tenants, naming them. The plea of payment was pleaded on the part of terre tenants, and on the trial was added, that they were not owners of any land bound by the judgment. The defendant Jesse Thomas made no defence.
    As to the question whether the persons summoned claimed any estate or interest in lands which Jesse Thomas owned at the time of the revival of the judgment, the charge of the Court was not complained of.
    As to the plea of payment, the defendants gaye in evidence a deed from Jesse Thomas and wife, to Dr. Isaac Thomas, his brother, dated December 14, 1847, for a tract of 159 acres and 115 perches of land, for the consideration of $1000, the receipt of which was acknowledged by the deed; and it was proved that when it was executed, Dr. Thomas, who resided in Chester county, was not present. The plaintiff, by way of rebuttal, proved that Jesse Thomas owed him other moneys besides that due on the judgment in suit, to wit: on a judgment in Luzerne county, $2089, entered April 12, 1844, with interest — for money paid on a bond in which he was surety, $367.10.
    The plaintiff requested the Court to charge that there was no evidence of actual payment of the judgment, or any part of it, nor was there anything which in law amounted to a satisfaction or extinguishment.
    The Court neglected to answer this point, and submitted it as a question to the jury, whether the judgment or any part of it was paid. The jury found a verdict for the defendants.

    A motion was made for a new trial, but the associate judge acting in the matter not concurring with the president, a new trial was not granted.
    It was assigned for error, 1. That the Court erred in leaving it to the jury as a question of fact, whether the judgment had been paid, there being no evidence of such payment.
    2. The jury were allowed, under charge of the Court, to deter mine that the plaintiff was not entitled to a verdict against Jesse Thomas, although there was no defence by him, nor any allegation whatever on his part, that the judgment or any part of it had been paid.
    3. The Court failed to answer the plaintiff’s second point.
    The second point referred to was: “ There is no evidence of actual payment of the judgment or of any part of it, nor is there anything which in law amounts to a satisfaction or extinguishment.”

      Candor, for plaintiff in error.
    — The Court declined to hear him, till the adverse counsel had shown the evidence of payment of the judgment of Isaac Thomas.

      J. T. Sale, and Par leer, for defendants in error.
    — It was contended that in the evidence was exhibited a train of circumstances tending to show, with reasonable certainty, that the judgment in question had been paid.

      J. J. Lewis, for plaintiff in error.
    — It was, inter alia, said that it is error to leave it to the jury to find a fact without evidence: 4 Harris 39, Jones v. Wood.
    An omission to answer a point on which the Court was ashed to charge, was error: 2 Harris 62, Mills v. Buchanan. The omission to answer the point may have been accidental, but it was nevertheless injurious.
   The opinion of the Court was delivered by

Black, C. J.

— This was originally a judgment in favor of one brother against another for a debt of two thousand dollars. It was first entered on the 9th of May, 1838, and revived on the 12th of January, 1843. The present proceeding is a scire facias to revive it again, and was commenced on the 31st of January, 1848. In the mean time the defendant had sold the lands on which the judgment was a lien, and the writ was served on several terre tenants. They appeared, and pleaded payment. The defendant himself made no defence.

All the points that arose on the trial were disposed of in a way perfectly satisfactory to the plaintiff, except that which related to the payment. The terre tenants asserted that the original defendant had satisfied the debt to the plaintiff. The plaintiff denied it, and requested the Court to charge the jury that no evidence of such payment had been produced. The Court nevertheless left it to the jury, on all the evidence before them, to say, whether it was paid or not: and the jury found that it was.

When a material fact is alleged by one party and denied by the other, and he who has the onus probandi fails altogether to adduce the least spark of evidence on the subject, it is the manifest duty of the judge to instruct the jury according to the truth of the case. A fact not proved must be taken not to exist. If, in such a case, the Court is asked, in a written prayer, to give the proper instructions, and fails to do so, it is error; and the judgment may be reversed.

But where any evidence at all has been given tending to establish the disputed fact, it is the province of the jury themselves to determine what weight they will give to it. If the evidence is very weak, it ought to be so handled by the Court in the charge, as to show the jury how insufficient it is. The preponderating weight of the facts, and legal presumptions which stand against it, ought to be clearly pointed out. When this is done in a few plain words, without unnecessary circumlocution, it seldom fails of its proper effect. Jurors never find against what they know to be the weight of evidence, unless in very extraordinary cases. When they do, a new trial should be given without hesitation. But in such a case (that is, where there is some, though slight evidence of a disputed fact), if the Court fail to point out its weakness, and the jury render a wrong verdict, and a new trial is refused, we can give no help on a writ of error to the party that suffers. We may correct errors of law, but’ not of fact.

Erom this it follows, that the affirmance or reversal of the judgment before us, depends on the question whether there was or was not some evidence of payment. Several circumstances were introduced, from which the defendant’s counsel attempted to infer the fact of payment. The evidence on the point was all indirect: but we cannot say, that it amounted to absolutely nothing. The' defendant was a brother of the plaintiff, had failed shortly before the issuing of this writ against the terre tenants, and not long before had sold the plaintiff land without receiving money or lands in consideration of it. A portion of the land on which the judgment waq a lien, had been sold on an execution against one of the terre tenants, and the proceeds distributed without any claim being made on part of ..the plaintiff. This evidence, especially the conveyance of the land, made some impression, not only on the Court and the jury, but on the plaintiff and his counsel. When it was produced by their adversaries, they did not object to it as insufficient or irrelevant. They did not rely afterwards on its weakness alone. They attempted to explain it by rebutting evidence. A deed for a valuable tract of land, made by a failing debtor to his brother who was not present when it was executed, and paid nothing for it at the time, might very well be supposed to have had some reference to the only debt which it was known the grantor owed the grantee. What was the conveyance meant for ? It was not dishonest; for the integrity of the parties is not impeached. It was not for a valuable consideration paid upon delivery. "What then ? A jury would most naturally say, it was intended to satisfy the judgment. Such a fact needed explanation, and an explanation was given. The plaintiff proved that his brother, the defendant, owed him other debts, and then argued that because they were not as well secured as the judgment, the price of the land must have gone to satisfy them. Perhaps this ought to have been satisfactory to the jury; but certainly it would not justify the Court in refusing to submit it. It might have been good ground for a new trial; but it avails nothing in a court of error. A circumstance tending to prove payment of a debt is a fact for the jury, and it does not become matter of law when it is rebutted by another circumstance of opposite tendency. When the evidence is circumstantial, and there are facts on both sides, it is the very business of the jury to decide between them. If the judge had thought proper to give a strong opinion in favor of the plaintiff by way of advice to the jury, we could have found no fault: but it would have been clear error in the Court to have decided the question.

It is argued here, that even if it was allowable to the jury to deduct the price of the land, it was wrong to permit them to find the whole judgment paid, since the consideration mentioned in the deed was only one thousand dollars, and the judgment was more than twice as much. There is a conclusive answer to this: The Court was not asked to give any instructions on this specific subject, and was not bound to raise points for the plaintiff which he did not choose to raise for himself. Besides, there was some evidence that the land was worth greatly more than the consideration recited in the deed.

Another error assigned is that the jury were suffered to find a verdict in favor of the original defendant. This was not objected to. Neither party said anything about it at the trial. It was the omission of the party himself. It is said the original defendant made no defence. He put in no plea. The paper-book does not show that the jury was sworn as to him, or that any verdict was rendered or judgment given in his favor. For aught that appears to us, the plaintiff may yet take judgment against him by default.

Judgment affirmed.


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    Ake’s Appeal.
    1. Matters of fact settled and decided by the Orphans’ Court will not be re-examined in the Supreme Court unless in a very flagrant case.
    2. It is not the office of an administration account to settle questions of distribution.

    3. The rights of distributees and legatees, as between each other, are not affected by the account of the executors or administrators.
    This was an appeal by David Ake and Joseph Ake from the decree of the Orphans’ Court of Blair county, confirming the report of the auditor on the account of the appellants, as executors of the will of Jacob Ake, deceased.
    Jacob Ake, the testator, died in July, 1838, having made a will, dated 4th May, 1827, proved 15th November, 1838, by which, after payment of debts, funeral expenses, and certain specific legacies (paid and taken credit for in the account), he directed that his five sons, to wit, David and Joseph (the appellants), William, Jacob, and John, should enjoy the amount of his real and personal estate in Pennsylvania, each the one-fifth part, including advancements, &c., the three first absolutely, Jacob and John for life, with remainder to their heirs respectively in fee as tenants in common. Certain portions of real estate were designated for different sons, at certain valuations ; equalization was provided for, &c., and it was directed that if either John or Jacob, or both, refused to take the land devised to them, then the executors to sell the same and purchase real estate equal to John and Jacob’s respective fifth share, take the title to the executors in trust for each (John and Jacob) for life, and remainder to their respective children in fee, as tenants in common, giving the executors large discretion, and appointing them trustees for the purpose above stated.
    John was in possession, at testator’s decease, of the “Big Spring” farm, directed to be sold in the will, and continued with his family to enjoy it, free of rent or charge, until the 1st April, 1847, when the executors, having sold it to John K. Neff for $4562.68, were required to give possession.
    The executors having purchased a tract of land for John, he and his family went into possession of the same, 1st of April, 1847, and continued to occupy the same until his decease, early in 1851; and his wife and children remained in possession. Eor this land the executors were to pay $3000.
    On the 8th of May, 1851, the executors filed their account, charging the amount of valuation of Jacob’s land under the will, and charging themselves with debts owing to testator, not due until 1843; also with the payments on Big Spring farm, the last of which became due 1st April, 1849. This account shows a balance, nominally, against accountants of $14,333.63, one-fifth of which is $2866.72 3-5. To this account some of the children of John Ake excepted; an auditor was appointed, who reported, changing the account, inter alia, by charging $5055.20, interest up to the Sling of account; making the balance, by this report, $19,626.83, one-fifth of which is $3925.36 3-5. This report was excepted to; the exceptions were overruled, and the account was confirmed by the Court.
    The opinion of the Court was as follows: “ A careful examination of this report has revealed to us ño error committed by the auditor.
    “ The principal complaint is, that the accountants have been charged with interest (which appears to have been charged in accordance with established rules) on certain sums of money in their hands, because it is alleged John Ake’s children are the only parties interested, and because their father was permitted to -occupy, without rent, and for several years, a portion of the real estate of the testator. This reason is, at best, no better than this, that the accountants are entitled.themselves to the use of the funds in their hands, and not chargeable with interest on it, because John Ake’s children are not entitled to a proportion of the interest. But the accountants were not themselves entitled to the use of funds lying in their hands. Interest is chargeable against them on part of the estate, in exhibiting the whole estate, which is the office of an executor’s or an administrator’s account. Who is entitled to it, is another and an after question, and one which arises in the distribution. If John Ake’s children have no right to any part of the additional sum charged as interest, and the accountants hold releases which are sufficient to relieve them from the duty of payment to any others, they will not be harmed by being compelled to make a full and legal exhibition of the whole estate of the testator. But there are points which, as they do not here arise, but relate to an after question, must be left open to future inquiry.
    “ The report of the auditor is confirmed.”
    Exceptions were filed: 1 and 2. To the disallowance of certain credits. 3. In confirming the report of the auditor; the reasons given by him not being well founded, nor true in fact. 4. The Court erred in decreeing confirmation of report, on the ground that the matter of the exceptions was not a subject of inquiry at this time. 5. In confirming the report in any manner changing the original account; it being more favorable to John Ake and his children than they were by law or equity entitled to. It was said that they have no interest in the life estate devised to John Ake.

      Thompson and Wilson, for appellants.
    Scott, contó, the Court declined to hear.
   The opinion of the Court was delivered by

Black, C. J.

— The complaints which the appellants make against this administration account, relate, some of them, to matters of fact, which we have often said we would not re-examine here unless in a very flagrant case; and some of them to questions which can only arise on distribution. It is the duty of an executor or administrator to set forth the true condition of the trust, without any reference to its ultimate destination. How creditors, legatees, or next of kin may be affected by it, is not a consideration which ought to alter its shape. Its object is to ascertain how much the accountants have received, and how much remains after payment of debts and expenses. Payments made to, or releases given by distributees, can have no place in it. It settles nothing but the basis on which a distribution may be made hereafter. Interest is properly chargeable against the accountants, according to the general rule in such cases; but the legatees will nevertheless not get it unless they are entitled to it.

We affirm the decree, because we consider the facts settled by the decision of the auditor, and the legal points not properly before us.

Decree affirmed.


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    McMurtrie versus Stewart.
    1. When a road has once been opened by the supervisors, its location eannot afterwards be altered by another supervisor for the purpose of placing it on what he may suppose to be its proper site.
    2. All authority under the order to open is exhausted by the action of those to whom it was directed, and cannot be resumed, although the first location was not according to the report of the viewers.
    3. But this rule does not prevent subsequent supervisors from opening or clearing out a road to its proper width.
    4. When a track has once been made on which the public can pass, the whole legal breadth of the road is to be taken as devoted to public use ; and though the power to make another location is gone, the right and the duty of the supervisors to remove obstructions from any part of it remains in full force.
    5. Holden v. Cole, 1 Barr 303, reaffirmed.
    6. A person who procures the commission of a trespass, is liable with those who actually committed it.
    Error to tbe Common Pleas of Huntingdon county.

    This was an action of trespass, quare clausum fregit, by Joseph Stewart v. McMurtrie, Hamlin, Nightwine, and Wolfkill. The pleas were, Not guilty, liberum tenementum, &c.
    Joseph Stewart brought the action against the defendants for opening a road through fields in his possession. Stewart having died, the administrators of his estate were substituted. Wolfkill, one of the defendants, at the time of the commission of the alleged trespass, was a supervisor of roads, and in the opening of the road he was assisted by Hamlin, as a hand. A non pros, 'was entered as to Nightwine. As to McMurtrie, it’ appeared that he was not present at the act complained of, but had threatened to prosecute the supervisors, if the road Were not opened.
    It appeared that roads had been, made by individuals through lands part of which was claimed by the plaintiff; ¡but in order to have a public road opened, a petition for the appointment of viewers was presented, and a report in favor of a road was made to January Term, 1836. At April Sessions, 1837, the report was confirmed, and an order made that it be opened. In the spring of 1837, Jacob Borland was elected a supervisor of the township through which the part of the road in question passed. He testified that an order for opening the road was received by him, and that he opened it where it was, until it was changed by Wolfkill, in 1844 or 1845. The issuing of only one order was marked on the record; the entry was without date, but it was in the handwriting of the person who-was clerk when Dorland was supervisor, but who was not in office in 1843, when the copy of the record given in evidence on the part of the defendants was made out. The Court, however, charged that if the road was opened by Dorland, when he wTas supervisor, in. pursuance of the order of the Court, and had been kept up as a public road, whether he had a copy of the order or not, it was top late for Wolfkill, under the certified copy ,of 1843, to change it. That the authority to open it had been executed, and the power to act under it was gone. He referred to the case of Holden v. Cole, 1 Barr 303.
    Stewart claimed the land by two purchases in 1836 and 1837, he claiming up to the road on which the trespass complained of was committed. McMurtrie, in October, 1842,.purchased the land on the other side of the road and up to and adjoining Stewart’s land, he purchasing from the same person through whom Stewart claimed. In 1844 or 5, McMurtrie required the supervisors to open the road through the field of -Stewart according to what was alleged to be the courses .and distances stated on the record. The fences of Stewart were thrown down, and the ^growing crop left exposed to cattle, — Stewart having notified the'supervisors not to commit the act. Under the -plea of liberum tenementum, on the part of McMurtrie, his deed of October, 1842, was given in evidence, calling for certain courses and distances on the line adjoining Stewart. It was said that a question of boundary was raised through the deeds of Stewart and McMurtrie. The Court charged that if the jury determine that the road existing at the time Me Murtrie purchased was the road called for in Stewart’s deed, the road would establish the line between them, and that McMurtrie could not set up a freehold on any part of the land in order to lessen the damages. The material question, however, was as to whether the power to open the road was exhausted by the action of the former supervisor.
    A verdict was rendered for the plaintiff for $300.
    There were various assignments of error; the material ones being to the charge that if a previous order was issued to the supervisors of the township, and the road opened by him, the subsequent supervisor had no authority to change the route as opened and adopted by the former one, whether the former supervisor at the time had in his hands a copy of the order or not.
    Also to the portion of the charge, that if the jury determined the road, at the time McMurtrie purchased, to be the one called for in Stewart’s deeds, it would establish the line between them, and that the defendants could not set up a freehold in McMurtrie in any part of the land trespassed on in order to lessen the amount of damages.
    Benedict, with whom was Orbison, for plaintiff in error.
    — It was said to be the duty of a supervisor to see that the public roads in his township are opened on the ground on which they were laid out, whether or not he was an officer when they were first ordered 'to be opened, and whether or not his predecessor had attempted to open the road. Reference was made to 7 Barr 275; 1 Barr 355, Needles’ Road; 8 Id. 522, Colden v. Chapman; 10 Ser. & R. 120. It was alleged that the last supervisor was not a trespasser even if he made a mistake in executing the order placed in his hands, as the Court had jurisdiction over the matter: 3 Ser. & R. 141, Allison v. Rheam.

      Campbell and Fisher, with whom was Wilson, confcrd.
    — In trespass, all who encourage, aid, or assist, are principals.
    It would lead to mischievous results if a subsequent supervisor had a right to re-locate a road after it had been once located, even though its location may have varied from the ground originally marked. Sometimes improvements of value have been made near the road as opened, and the alteration may be highly injurious to owners. When years have passed after a location, and the marks on the ground are obliterated, and the road as opened in pursuance of an order of Court has been acquiesced in and treated as the road, as well by the officers of the township as the public, the authority is exhausted and cannot be resumed: 1 Barr 307, Holden v. Cole.
    The question of the boundary of the lands of Stewart and McMurtrie was left to the jury.
   The opinion of the Court was delivered by

Black, C. J.

— This was trespass for entering the plaintiff’s field, taking down his fences and injuring his crop. The defence is that one of the parties sued was supervisor of the township where the alleged injury was done, and went there himself, taking two of the others along as assistants, for the lawful purpose of opening a public road laid out by order of the Court of Quarter Sessions. The plaintiffs in error have furnished us a few meagre extracts from the evidence. But from these, and from the facts stated in the charge, we infer that the road in question was laid out many years ago (how many we eannot tell), and that it was opened at least seven years before the time when the wrong complained of in this suit was committed. From 1837 to 1844, the road was used and kept in repair by the public. But it is now asserted that it was opened on the wrong ground — that the location agreed on by the viewers was through the plaintiff’s field, whereas the supervisors of 1844, when they opened it, carried it around the field by way of a private road, which had been previously used. It was under pretence of correcting this error that the defendants entered on the plaintiff’s land.

This case is precisely that- of Holden v. Cole (1 Barr 303), which held that supervisors have no right to re-locate a road in order to place it on what they may suppose its recorded site; that the authority under the order to open, is exhausted by the action of those to whom it is directed, and cannot be resumed; and that a road once laid can only be altered by a new proceeding under the road law. This doctrine is so consistent with the spirit of the acts of Assembly and accords so well with sound principle and good policy, that it ought never to have been questioned. The only objection that can be made to it is, that it gives to supervisors the power to do wrong without furnishing a remedy. But a little consideration will show that this is not well founded. Where those officers make a faithful effort to be right, they are not likely to commit any serious error; and surely it is better that a trifling deviation from the line marked by the viewers should be tolerated, than that every succeeding supervisor should have the authority at any time afterwards to alter it according to his own notions, or the interested statements of other parties. If the location of the road is not finally settled by the action of those to whom the order to open is directed, it can never afterwards be settled by the action of others. If it can he moved once, it may he moved twenty times upon the same principle. If the true site cannot he found when the location is fresh, the probability of success is diminished when the marks are obliterated and the memory of witnesses has faded. Besides; one who is really aggrieved by the opening of a road on ground npt intended by the viewers, may have it altered bjr a petition to the Court and the appointment of new viewers, and this is certainly a more desirable remedy than an appeal to the arbitrary power of some future supervisor. It is said a supervisor may wilfully and maliciously open a road where it was never meant to be. All power is liable to be abused. Still we must trust it somewhere. There are as many checks upon the abuse of this power as any other. A supervisor performs his duty under oath, and acts constantly in peril of an indictment if he commits a flagrant wrong in his office. But the amount of authority which may be abused, is very much diminished by the rule which says, that a road shall be opened but once. If we did not hold that all authority under the order is exhausted by the first execution of it, the power would be perpetual, and as liable to abuse after twenty years as at first.

We are compelled to hold that the defendants were not justified by the old order to open the road. A supervisor, under such circumstances, has no more authority than a private individual to go upon the lands of his neighbor. When a road has been opened and in use without complaint for seven years, it is too late to inquire whether it is, or is not, on the site designated by the viewers.

To prevent misconception it may be proper to add that when the order to open is executed by the supervisors, the whole width of it is to be taken as devoted to the public use, and though it may not at first be entirely cleared out, that may be done afterwards. Opening a road does not consist merely in removing obstructions. When a track has once been made on which the public can pass, the power to make another location is gone, but the right and the duty of the supervisors to extend it to its legal breadth remains in full force. Anything which closes or obstructs a road that has been once opened is a nuisance, and may be abated either by the proper officer or by any private citizen.

We think there was some evidence to connect all the defendants with the trespass.

The other errors assigned are not important. They are not urged in the printed argument of the plaintiff in error, and could not be sustained if they were.

Judgment affirmed.