text:
    Hallowell’s Estate—Teas’ Appeal.
    1. The abatement of devises and legacies is always a question of interpretation, aiming to learn from the will and other proper circumstances what intention of preference or equality the testator had, so as to apply that intention in settling the duty of abatement or contribution when his expectations are partially disappointed.
    2. On a deficiency of assets of a decedent’s estate, devises and specific and demonstrative legacies are all liable to abatement in favor of -each other.
    3. Since land is assets for the payment of debts in this state, arid is not in England, the English decisions in regard to abatement of devises and legacies are to be received with caution; and those only are strictly; analogous in which the testator has charged his land with the payment of his debts, or in which the legacy fund is encroached upon by a debt that was in some way charged upon the land.
    4. A devisee of land charged with a legacy is not a purchaser in such a sense as to.free from liability to contribution in case of a deficiency of assets to pay debts and satisfy specific and demonstrative, legacies. Remarks on tho case of Hoover v. Hoover, 5 Harr 351.
    5. A testator devised his land to two sons charged with • legacies to another son, and gave legacies to that son and a daughter payable out of certain designated funds, and such funds were encroached upon or exhausted in the payment of debts: Held that the devises and legacies must abate in equal proportions, the devisees contributing to the deficiency of the legacy .fund in proportion to the value of their devises.
    Certiorari to tbe Orphans’ Court of Montgomery county, in the matter of an appeal by George Hallowell, and also of one by John and Mercy Teas, from the decree of the Orphans’ Court of Montgomery county.
    A petition of Thomas B. Hallowell and Aaron Hallowell, acting pxecutors of the will of Thomas Hallowell, deceased, was presented to the Orphans’ Court, in which it was represented that their account as executors had been filed and confirmed, showing a balance in their hands of $974.49, which was insufficient for the payment of debts of the estate: and that the testator by his will devised the ivhole of his estate. They requested the appointment of an auditor to ascertain the amount of the debts, the value of each legacy and devise which was to be applied to the payment of the debts; or if the legacies and devises, or any of them, were to abate, then in what proportion, so as to raise sufficient to pay .the debts, &c.
    An auditor was appointed.
    Thomas Hallowell died on the 27th April, 1848. By his will,, dated 10th August, 1846, after providing that his wife should have certain privileges and $150, &c., he devised, inter alia, as follows:—
    “ I leave my daughter Mercy Teas eighteen hundred dollars that is standing out.” She and her mother may take what linen, &c., they choose. I-leave my son Thomas B. Hallowell forty-two acres of land, &c. “ Two hundred dollars, — Note to my son George Hallowell and the rest of the papers to be destroyed, tie is to find his mother one cord of wood a year and fifty dollars a year. I leve my son Aaron Hallowell seventy acres of land, to him and his heirs for ever, with all the buildings, and he is to bring no charge against the rest of my estate, and is to pay my son George Hallowell $700 at five per cent.; he is to pay his mother $100 a year, and what more firewood she wants,” &c. He next directed small legacies to his two sons Thomas and Aaron, and one to a grandson; and the rest of his “movables” to his three sons. He next proceeded : • “ I leve my son George Hallowell two shares in the Centre Bridge, and he is to pay that $600 I borrowed for him, and interest upon that bond till my death; then the bond is to be destroyed.” He appointed his three sons executors. Subsequently George was discharged as executor.
    The widow of the testator died in May, 1848.
    The articles taken by Mercy Teas and her mother were stated to amount to $55.50.
    The auditor in his report intimated that the bond referred to in the will was a bond of the testator against his son George, for $1700, the balance of the principal of which was $1500; and that the two shares of bridge stock were valued at $8. The testator owned no other real estate than that which he devised to his sons Thomas and Aaron. The auditor stated that he adjudged the farm devised to Thomas Hallowell to be worth $3360, and that it was subject to the payment of $200 to George, and $50 yearly to the widow. The farm devised to Aaron he adjudged to be worth $7000, and that it was subject to a legacy of $700 to George, and to the annual payment of $100, &c., to the widow.
    He stated the amount of legacies payable out of the real estate to be $900 ; and the amount of legacies payable out of the personal estate to be $3391. In the amount of legacies he included the bond of- George for $1500, which was founded on the expression in the will — “ and interest upon that bond till my death; then the bond is to be destroyed” — and on the words in connexion therewith. The bond was payable by George to his father.
    He stated the amount of debts and expenses of settling the estate, as stated in a former auditor’s report, at $1103.31; and that George Hallowell had obtained a judgment against the other two executors, on March 30,1852, for $2819.25, which after deducting certain payments amounted to $2840.25. Expenses of auditing, &c., $70.90. The whole amounted to about $4014.46. The judgment in favor of George was founded on the bond for $1500 before referred to.
    The amount of personal assets applicable to the payment of debts and legacies, he stated at $4377. In this amount was included the inventory, amounting to above $4000. In the inventory was included the sum of $500, part of the $600 borrowed by the father for George, and also the bond of George to his father for $1500, the principal of which was released by the will.
    The auditor observed that though the principal of the bond was released by the will, the balance of the bond was properly charged in the inventory, because the release of the debt operated only as a specific legacy, and that the debt was assets subject to the payment of debts, (2 Williams on Executors 1119,) and that it must abate with other specific legacies.
    In relation to the legacies to Mercy Teas he observed that the bequest which related to the articles of property devised to her, amounting to $55.50, was a specific legacy. That the legacy to her of $1800 was a demonstrative legacy, viz., a legacy specific so far as the fund out of which it is payable was concerned, but general in respect to the rest of the estate. That it was payable out of the money outstanding at the date of the will or at the death of the testator, which at either time exceeded $2300; viz., more than sufficient to pay that legacy.
    In relation to the question as to which of the legacies were liable to contribute to the debts, and consequently abate, he decided that the specific legacies and the demonstrative legacies, being payable out of the personal estate, were liable to abate pro rata: 2 Williams on Executors 1174.
    As to whether the lands devised to Thomas and Aaron were liable to contribute, he referred to the case of Hoover v. Hoover, 5 Barr 357; 1 Peere Williams 403, Long v. Short; Williams on Executors 1444; and observing that according to the case of Hoover v. Hoover, and Glen v. Fisher, 6 Johns. Ch. 33, the devisees of the land, by acceptance of the land, became personally liable for the sums charged thereon, he considered that they, were therefore purchasers for a valuable consideration; and he decided that the lands devised to Thomas and Aaron were not liable to contribute to the payment of debts till the entire personal estate was exhausted.
    As to the question whether the legacies payable to George by the devisees out of the land were to contribute with the specific legacies to the payment of debts, he considered that this was involved in the decision that the lands were exempt from contribution ; and he decided that the debts unpaid and the expenses of the audit were to be paid out of the balance of the personal estate, and the residue, if any, be divided among the specific and demonstrative legatees pro rata.

    The auditor reported the amount of personal assets for distribution, including the $500 owing by George Hallowell, and his bond for $1500 and interest thereon, to be $3171.15.
    The amount of debts, including George Hallowell’s judgment, stated at $2840.25, and expenses $70.90, the auditor stated at-$2911.15, leaving a balance unpaid of $260, which balance he directed to be paid to the legatees of personal estate, fro rata, viz., to Mercy Teas, after deducting $55.50, he reported $86.78 on account of her legacies, &c., &c.
    Exceptions to the report were filed on the part of George Hallo-well and of John and Mercy Teas, but the report was confirmed.
    Appeal was taken by George Hallowell on the part of the ex-ceptants. The second and third exceptions on the part of George Hallowell were to the effect that the Court erred in decreeing that he was not entitled to the whole of his judgment; and in decreeing that the balance of his bond, which, by the will, was directed to be destroyed, should be considered as part of the testator’s personal estate. Fourth, in deciding that the lands devised to Thomas and Aaron were not liable to contribute to the payment of the debts until the entire personal estate was exhausted.
    On the part of John and Mercy Teas, some of the exceptions were that the Court erred in deciding that the $1800 bequeathed to Mercy Teas was liable to be applied to the payment of debts and expenses. Fourth, in deciding that the lands devised to Thomas and Aaron were not liable for any part of the debts or expenses.

      Hirst and Boyd,, for appellants.
    The bond referred to in the will was a bond for $1500, held by the testator against George. At the date of the auditor’s report it amounted to $1696.66. This bond was to be destroyed. It could not be collected by the executors to pay debts, so long as any estate remained for that purpose. If it could not be collected to pay a debt to a stranger, how could it be liable to collection to pay an heir or legatee ? The Court erred in treating it as part of the assets for distribution.
    As to the legacy to Mercy Teas. By the decree of the Court Mercy Teas is to get but $142.28 instead of $1800 that was “ standing out.” The intention of the testator is to govern. That intention was that she was to have $1800 which was outstanding or invested when the will was made, and when the testator died. The testator knew he was indebted, and had but about $1800 of personal estate; and it was contended that he did not intend that the legacy to Mercy Teas should be applied to the debts when the two sons were getting twice or more of the estate than the legacy to her amounted to. If a legacy be given with reference to a particular fund only as pointing out a convenient mode of payment, it is to be considered' as demonstrative, and the legatee will not be disappointed though the fund wholly fail: 4 Harris 275, Walls v. Stewart; 2 Id. 461, Balliett’s Appeal; 5 Barr, Hoover v. Hoover, cited as to the order of the application of several funds to the payment of debts. Also, 2 Powell on Dev. 667-8; 2 Penna. Rep. 382, Duncan v. Alt; 10 Barr 387, Loomis’ Appeal.

      If, however, the legacy to Mercy Teas is to be regarded as á general pecuniary legacy, the most to be required is that it abate with the other legacies and devises.
    The devisees of the land are not to be excused from contribution on the ground that they are purchasers, or on any other ground. They are not purchasers: 3 Whar. 492; 5 Barr 134. The payment of $200 and $700 to be made to George does not make them purchasers. These sums were not charged on the land: 7 Barr 242; 2 Jones 256, Wright’s Appeal. The devisees took the land subject to the payment of debts.

      O. H. Stinson and Qamfbell^ for appellees.
    The bond of $1500. to George was assets for the- payment of debts. His own legacy abated towards the payment of his bond. Mercy Teas was not entitled to have her legacy free from liability for debts: 1 Harris 188, Ludlam’s Estate.
    The devises of land are not liable to abatement; 1. Because there was sufficient personal estate: 2 Will. on Ex’rs. 1149; 17 Ser. & R. 426; 2. Because it did not appear that the testator designed to exempt his personal estate: 2 Harris 461, Balliett’s Appeal; 3. The devisees are purchasers: 6 Watts 167; 5 Barr 356; and are not to ‘ contribute till the rest of the estate is exhausted.
   The opinion of the Court was delivered by

Lowrie, J.

The auditor’s report states the facts of this case to our entire satisfaction, and presents a single question for decision, depending upon the law as to marshalling of the assets of an estate among devisees and legatees. When the devises and legacies are all specific and demonstrative, must they all abate or contribute ratably to pay debts otherwise unprovided for ?

Cases of this sort never arise, except when it is ascertained that the intent of the testator is about to be, to some extent, disappointed ; and the question then presented is always one of interpretation, aiming to learn from the will and other proper circumstances, what intention the testator had as to preferences among his devisees and legatees, so as to apply that intention in settling the duty of abatement and contribution.

The history of the early labors in . this, as in other fields of jurisprudence, exhibits many conflicting efforts and unsuccessful experiments in the endeavor to bring it into a state of proper order and consistency; and the experience thus acquired cautions us against delusive and untried theories, and inspires us with confidence in -well-established results. But we must not forget that these results consist of rules for ascertaining the intent that are only general in their character, and are subject to many exceptions in their application, and that some of them require to be modified with us, because they depend upon legal institutions that have no existence here.

We have at hand illustrations of this last remark that bring us right to the very point of the present case. In England land is not regarded as general assets for the payment of debts, and therefore with them, in cases of this sort, specific devises are considered as being intended to be preferred over specific legacies. And this is a necessary conclusion, for that which is not, in law or equity, liable for debts, cannot be called upon to contribute to the relief of that which is. But this rule does not include specialty debts, for land is liable for them, and therefore, as to them, devises and specific legacies must contribute ratably: 1 P. Wms. 403; Ibid. 730; Cases Temp. Talb. 54. And land that is allowed to descend to the heir must bear the burden of such debts, rather than disappoint either specific or general legacies; because these, being specially provided for, are presumed to be preferred: 3 Ves. Jr. 118; 2 Atk. 437; 2 Bro. C. C. 263; 3 P. Wms. 367; 3 Madd. 453; 2 Powell on Devises 667; 3 Johns. Ch. R. 319. And when a testator charges his lands with the payment of debts generally, then they become assets for that purpose: 7 Ves. 322; 2 Bro. C. C. 94; and then devises and specific and demonstrative legacies stand upon an equality in cases where an abatement is required: 2 P. Wms. 382; 3 Id. 323; 1 Id. 730; 1 Dickens 384; 1 Bro. C. C. 138 n.; 2 Bos. & Pul. 310; Ram. on Assets 378.

With us land is assets for all sorts of debts; and by adding this element to the results already obtained, it becomes plain, that though the personal estate is, in legal contemplation, the primary fund for the payment of debts, yet this rule does not apply, as between legatees and deyisees, whore a particular portion of the personal estate is set apart for legacies, because, in such cases, without other circumstances, there is no evidence of an intention to prefer devises over legacies.

It is supposed, however, that the fact that the devises, in the present case, are charged with the payment of a portion of the legacies, is a circumstance showing a different intent. The argument is, that one who accepts a devise charged with a legacy, takes it as a purchaser, in the ordinary sense of that w'ord, and is personally liable for the legacy in any event; and Hoover v. Hoover, 5 State Rep. 351, is relied upon for this. Even if the devise and its acceptance were intended as a contract of purchase and sale, this would not be entirely true, for then the devisee or purchaser would be entitled to relief from the charge or purchase-money on the failure of the title, or he might apply it in discharging liens; a principle that was overlooked in Hoover v. Hoover.

There- are no doubt cases in which devisees do stand in the character of purchasers; but in ordinary cases they áre treated so only for the purpose of raising a technical promise in support of the forms of a common law action. It is certainly not a purchase that would avail as such against creditors. The promise is implied as a means of enforcing an obligation imposed by the giver as part of the law of the gift. In equity it is enforced as a trust, in law as a promise. But if circumstances show that the obligation does not really exist, as where the devisor’s creditors take the land for their debts, then a promise or trust will not be implied; but the question will arise, how shall the devisees and legatees contribute as to the debts ?

This principle having been overlooked in Hoover v. Hoover, a devisee was treated as. a purchaser of land, and made to pay the full consideration, without any allowance for the general liens against the vendor or devisor, which he had been and might be compelled to pay. His land was made a primary fund to pay debts, and the legacies charged upon it were relieved from abatement. And the rule that specific and demonstrative legacies, 2 Dall. 243, 1 P. Wms. 693; and even general ones, 2 P. Wms. 335, Cases Temp. Talb. 54, shall not be defeated or prejudiced in order to pay a mortgage or other specific lien created by the testator in his lifetime, was extended to a case of general lien.

The case of Loomis’ Appeal, 10 State Rep. 387, is very different, and decides the very question of this cause, that, on a deficiency of assets to pay debts, devises and specific or demonstrative legacies are equally liable to abate. One remark of Chief Justice Hibson is so appropriate here, that a quotation of it will be indulged. “ To suffer the legatees to be deprived of- their fund, •in violation of the testator’s plain directions, would give the devisees all the available part of the estate, and cut up his plan of distri - bution by the roots.” And such would be the result of the rule insisted upon here; but we cannot so disappoint the will: 1 P. Wms. 694; 2 Id. 190, 335.

These remarks indicate the principle that governs the question of contribution; and the valuation and other facts found by the auditor, and not excepted to, enable us to settle the proportions.

Decree. — May 17th, 1854. This cause came on to be heard at the last March Term at Philadelphia, on appeals taken by George Hallowell and Mercy Teas from the decree of the Orphans’ Court of Montgomery county, in the marshalling of the assets of the estate of Thomas Hallowell, deceased, and was argued by counsel; and therefore, on full consideration thereof, it is ordered, adjudged, and decreed, that the decree of the said Orphans’ Court be reversed and annulled; and this Court, now proceeding to make such decree in the cause as the said Orphans’ Court ought to have made, do further order, adjudge, and decree, that the devise to Aaron Hallowell shall, for the purposes of this proeeeding, stand as valued as at the testator’s death at the sum of six thousand three hundred and seventeen dollars and 66§ cents ($6317.66-|), the deviso to Thomas B. Hallowell at three thousand one hundred and sixty-five dollars and 66-| cents ($3165.66-f), the legacies to George H. Hallowell at two thousand four hundred and ten dollars and 66§ cents ($2410.66f), and the legacies to Mercy Teas at eighteen hundred and fifty-five dollars and 50 cents ($1855.50); and that, in order to supply the deficiency of the other assets to pay the debts, the said several devisees and legatees shall respectively contribute in these proportions : that is to say, the money in the hands of the executors amounting, after paying thereout the costs of this proceeding, to the sum of $884.49, is ordered to be paid to Mercy Teas; then the balance of debt and interest due to George Hallowell on his judgment, after deducting the debt and interest due to the estate by him, is $2227.22; and the legacy and interest due to Mercy Teas, after the payment above directed to be made to her, is $1464.51; and these two sums make up the deficiency to be supplied, to wit, $3691.73; and, in order to apportion the said deficiency among the said several devisees and legatees, it is ordered and decreed that the judgment of George Hallowell, one of the legatees, be abated to the sum of $1579.96 ; that the balance of the legacy due to Mercy Teas, after the payment above provided for, be abated to the sum of $966.31; and for the payment of the said balances according to equity, it is ordered, adjudged, and decreed, that the said Aaron Hallowell do, on account and out of the land devised to him, pay to-George Hallowell the said sum of $1579.96, in full of his said judgment, and to Mercy Teas the sum of $116.31, on account of her legacy; and that the said Thomas B. Hallowell do, on account and out of the land devised to him, pay to Mercy Teas the sum of $800; which said sums shall be paid by the said Aaron and Thomas respectively within six months from this date with interest; and this cause is now remitted to the said Orphans’ Court, with instructions to carry this decree into effect.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Pierce versus Hakes.
    1. Where land was devised to the testator’s widow for life, and after her death to two granddaughters and their issue in equal shares, and with a devise over in case both the granddaughters should die and nob leave any issue, held that .each granddaughter took an estate tail with an implied cross remainder in tail in favor of the other, depending for their actual enjoyment on the determination of the widow’s life estate.
    2. A married woman having a vested remainder in tail, received a surrender of the particular estate; she thereby acquired such a seisin of the land as entitled her husband on her death to hold as tenant by the curtesy even against the next remainders.
    3. The acknowledgment of a deed before a judge of a Court in New York is not void, under the Act of April 10, 1849, because of the omission of the judge to certify that his Court was a Court of record, if the laws of that state show it to be so.
    4. A deed acknowledged and delivered by the grantor cannot be said to be executed by an agent, even on proof that the grantor’s signature was made by another person at her request.
    5. The declarations of a deceased surrenderor of land, made after the surrender, are not evidence to impair the title surrendered; but her admissions are evidence to rebut a charge of fraud in procuring the surrender from her, even though her deed may have the effect of subjecting the estate in remainder to a curtesy estate.
    6. A conveyance, made for a nominal consideration and for the mere purpose of barring an estate tail and without the transaction being completed by a reconveyance, can, if it is effectual at all, be treated only as a conveyance of the legal title; leaving the equitable estate still subsisting in the grantor as an equitable fee simple or fee tail according as the bar of the entail was effectual or not.
    7. Where a married woman seised of an estate tail joins her husband in a conveyance of it to another for a nominal consideration and for the mere purpose of barring the entail, and dies before it is reconveyed, she dies seised of an estate that is liable to the curtesy of her husband.
    Error to the Common Pleas of Luzerne county.

    This was an ejectment to April Term, 1851, by Hannah Pierce, who survived Marmaduke Pierce, James and Samuel Hunlock v. Henry Hakes, to recover 100 acres of land in Hanover township, Luzerne county.
    Both parties claimed the land in controversy under the will of Samuel Jameson, who died in 1843. The will was made on the 6th September, 1842, and was proved before the register of Luzerne county on the 26th April, 1843. The material portion of this will is in the following words:—
    “ I will unto my beloved wife, Hannah, all my real and personal estate during her natural life, if she remains my widow, and no longer, and that she support and educate out óf my estate, my two granddaughters, Maria Eliza J. Dana and Augusta Paulina J. Dana, until they should settle themselves in a better situation by marrying or otherwise; and if there should be more stock or any’ more furniture than my wife should wish to beep, that the same be sold by my executors, and the money arising therefrom, with all the money due me on bonds or notes, be kept on interest, unless the interest should be wanted for the support of my wife and two grandchildren above named; and after the decease of my wife, I will and bequeath unto my two granddaughters, to wit, Maria Eliza J. Dana and Augusta Paulina J. Dana, all my real and personal estate, to them and to their issue, to share alike, equally to be divided between the two; and if the above-named Maria Eliza J. Dana and Augusta Paulina J. Dana should both die, and not leave any issue from their bodies begotten, in that ease, I will that my real and personal estate be equally divided between my sister Hannah Pierce or her heirs, and the heirs of my sister Mary Hunlock, in two equal shares.”
    Augusta Dana, one of the granddaughters mentioned in the will, died in October, 1847, in her minority, unmarried and without issue.
    Maria Dana was born on the 31st May, 1828, and was married to Henry Hakes, the defendant in this action, in June, 1849; and she died without issue on the 19th December, 1849.
    The widow of the testator, Mrs. Hannah Jameson, died, unmarrried, in March, 1851.
    The writ of ejectment in this ease was issued, after Mrs. Jameson’s death, on the 3d April, 1851, and was served on the 5th April, 1851, on Henry Hakes, the defendant, who was in possession of the premises.
    The cause came on for trial on the 12th August, 1853, and a recovery was asked upon proof of the will, of the death of Hannah Jameson the widow, and the granddaughters of the testator, and of the fact that James and Samuel Hunlock were tire proper representatives of the testator’s sister, Mary Hunlock, who was dead at the date of the will.
    On part of defendant, was offered the record of a deed from Hannah Jameson to Maria E. Hakes, dated 12th December, 1849, “ granting, surrendering and yielding up” in consideration of love and natural affection for my granddaughter and the sum of one dollar, all that lot, farm, &c., in Hanover township, on which she (Mrs. Hannah Jameson) had lately been residing, being the same farm whereon Samuel Jameson, deceased, lived, at and immediately before his death “ to the intent and purpose that the estate for life, or life interest of me,- the said Hannah Jameson, in and to every part and parcel of the said farm,” (&c.) “and its appurtenances, may merge and be absolutely extinguished, and the said Maria E. Hakes may be in the actual possession of said premises.” This deed was acknowledged 'before Edwin More, “President Judge of the.County Court in and for the County of Delaware, in the State of New York,” on the 12th December, 1849;. and that the judge was county judge, and the authenticity of the certificate of acknowledgment was certified by the clerk of Delaware county, with the county seal annexed, on the 13th December, 1849. The defendant’s counsel objected to the admission of the record of the deed, on the ground that the deed itself was defectively acknowledged. The record of the deed was admitted, and this decision was the subject of the plaintiffs’ first bill of exceptions.
    The defendant then offered in evidence the record of a deed from Harry Hakes and Maria E. Hakes his wife, to Lyman Hakes for the same land, in consideration of one dollar, the grantors stating and declaring that it Avas their and each of their intention thereby and by virtue of said conveyance and assurance, to debar any estate tail in possession, reversion, or remainder that they or either of them had in the lands granted. This deed purported to be dated on the 13th day of December, 1849, and was acknowledged before the same Judge More, in Delaware county, New York, as President Judge in and for the county of DelaAvaro —his official character as county judge being certified by the county clerk under the county seal. The plaintiffs’ counsel objected to the reception of the record in evidence, and referred to the affidavit of Hunlock, one of the plaintiffs, and a notice to produce the deed, and asked the Court to make a peremptory order on the defendant to produce the original deed. The Court declined to do so, and the plaintiffs then objected to the record being given in evidence on the ground that the acknowledgment and certificate were defective; and because, professing to bar an entail, it could not be executed out of the state. The record was admitted in evidence, and this decision was the subject of the second bill of exceptions.
    The defendant then offered in evidence minutes of the Court of Common Pleas of Luzerne county of 16th January, 1850, it being-one of the days appointed for the acknowledgment of sheriff’s deeds; together with the record of the deed from Harry Hakes and wife to Lyman Hakes in Sheriff’s Deed Book, No. 13, page 143. The plaintiffs objected on the ground that the entry of the record and motion Avas not sufficient, and because the grantor, Mrs. Hakes, had died before the motion was made; because it did not appear that any proclamation was made or any notice given to the other parties in interest; and because the motion was made for Harry Hakes and wife, who had at the time no interest in the property. It Avas urged on behalf of plaintiffs, that if, before Mrs. Hakes’ death, her deed to Lyman Hakes had not been delivered, then her death would prevent its operation for any purpose, and it would be simply void, and if it had been delivered, then the motion on her behalf could not, subsequently to her death, be made. The objections were overruled, and the evidence admitted, and the Court sealed the plaintiffs’ third, bill of exceptions.

      The defendants then offered the docket showing the record entry of the motion and deed to bar the entail. The plaintiffs objected on the ground stated in the last bill. The evidence was admitted, and the Court sealed the fourth bill.
    The defendant then proved the fact of his residence on the premises in dispute from the fall of 1850 up to the time of the trial, and gave in evidence the deed from Lyman Salces to himself dated 14th May, 1850, and rested.

      The plaintiffs then called Ann Carswell, who was a sister of Mrs. Samuel Jameson, and who testified that Maria E. Hakes, at the time of and before her marriage with the defendant, was in delicate health, &c.
    It was also offered to be proved by her that Maria, before her marriage, told her grandmother, Mrs. Jameson, in presence of the witness, that L. Hakes said her grandfather’s will could be broken, and that said Hakes advised the attempt to break the will, &c. The defendant objected to this offer. The evidence was rejected, and the Court sealed the plaintiffs’ fifth bill.
    The defendant produced the original deed from Mrs. Hannah Jameson to Maria E. Hakes of 12th December, 1849; and the plaintiffs then called Jameson Harvey, who testified that he was acquainted with Mrs. Jameson’s handwriting, and that the signatures to this deed and the receipt appended thereto, were not in her handwriting —that while her first name (Hannah) was spelled properly in the body of the deed, it was erroneously spelled (Hanah) in the signatures, and that the last name w'as improperly spelled Jameison in the signature, while she always wrote it Jameson.

    Two witnesses were then called, who testified that the body of this deed was in the usual handwriting of Lyman Salces, and that the signatures were in his handwriting, but in a disguised form. Another witness said he should not think the signatures to be in the handwriting of Lyman Hakes. Caroline Hakes, a witness subsequently called by the defendant, stated that the name of Mrs. Jameson was signed by Lyman Sakes, and that she (Mrs. Jameson) took hold of his hand.

    The original deed from Mrs. Jameson to Mrs. Hakes was then given in evidence by the plaintiffs for the purpose of showing handwriting, and the plaintiffs rested. On part of defendant it was alleged that before any testimony was given as to the handwriting, was admitted that Lyman Hakes had written the name of Mrs. Jameson at her request.
    The defendant called several witnesses who testified as to the state of Maria’s health, and the circumstances connected with the execution of the deeds. In the course of this testimony, he offered to prove by S. Dana and others, that on and after the return of Hannah Jameson from the state of New York, in December, 1849, she stated that she had transferred, or deeded, or conveyed her interest in the lands demanded in this ejectment to the defendant. The plaintiffs objected to this offer. The evidence was admitted, and the Court sealed the plaintiffs’ sixth bill;
    In the course of his rebutting testimony, the defendant offered to prove that at the time the deed from Mrs. Hannah Jameson to Maria E. Hakes was executed, Mrs. Jameson gave directions to L. Hakes to sign the deed for her; and that at the time of executing the deed of Harry Hakes and Maria E. Hakes to Lyman Hakes, Jr., Maria signed the said deed, heard its contents read over, said she understood and acknowledged it, and that at the time, she was in the possession of her mental faculties. The plaintiffs objected to this offer. The Court admitted the evidence, and sealed the seventh bill.
    After the closing of the defendant’s rebutting testimony, the plaintiffs proposed to show the declarations of Mrs. Jameson, made after she returned from New York, that she executed no paper while she was gone, of any kind, and continued to repeat such declarations till the day of her death. The defendant objected. The evidence was rejected, and the Court sealed the plaintiffs’ eighth bill of exceptions.
    The testimony on both sides being closed, Conyngham, President Judge, instructing the jury that there were no facts to be submitted to them, and reserving the several questions in the cause, directed a verdict pro forma for the plaintiffs, and granted a rule to show cause why judgment should not be entered in favor of the defendant non obstante veredicto. Upon argument of this rule, the Court filed an opinion in which it was held that under the will of Samuel Jameson, his widow, Hannah, took a life estate in his real property, with vested remainders in his granddaughters in tail, as tenants in common, having also by implication in each other’s shares contingent cross remainders in tail, dependent on survivor-ship ; that after the death of Augusta Dana, Maria, the survivor, had a vested remainder in tail, to be acquired in possession on the determination of the previous particular estate given to the widow; and that the present plaintiffs took contingent remainders in fee, to vest on the determination of the life estate and estate tail,- or any interests legally issuing’ out of them. The Court held .also that Mrs. Jameson’s deed to Maria of 12th December, 1849, was good and- sufficient, and well executed and acknowledged, and merged the life estate in the inheritance, and gave to Maria an estate tail, no longer in remainder, but in possession of the land. The deed of 13th December, 1849, of Harry Hakes and Maria his wife, to Lyman Hakes, not having been produced in Court in the lifetime of Maria, pursuant to the provisions of the Act of Assembly of 16th January, 1799, was held not to have barred the estate tail, but to be sufficient to convey to the grantee the estate for life of Harry Hakes, the husband of Maria E. Hakes, as tenant by the curtesy; and Lyman Hakes having subsequently reconveyed to Harry Hakes his interest in the land, the latter was decided to be entitled to the enjoyment of it during his life. And the Court entered judgment in favor of the defendant, non obstante vereclicto.

    The first eight of the assignments of error related to the bills of exception in their order. The 9th was to the instruction that there was no fact for the jury to try with regard to the legality of the execution of the deed by Mrs. Jameson to Maria Hakes. The 10th, to the instruction that the whole case was one of law, and that the verdict should be for the plaintiffs. The 11th was to the instruction that, by the will of Samuel Jameson, his widow Hannah took a life estate in his real property (the condition of not marrying, under the facts, not affecting this view of the case), with vested remainders, &c., as above stated; and to the instruction as to the result after the death of Augusta Dan,a, as before stated. The 12 th was to the instruction that on the 12th day of December, 1849, the day when it was contended that Mrs. Jameson made her deed to Maria Hakes, she, Mrs. Jameson, continuing to be the widow of the testator, had a freehold estate for life in the premises, subject to the contingency of marrying; and that Maria Hakes had an estate tail in remainder in the same.
    The 13th assignment related to the acknowledgment of the deed of Mrs. Jameson, and its effect.
    14th. The Court erred in their opinion in saying:—
    “ Had Harry Hakes on the 13th Dec. 1849, when the interest of Mrs. Jameson was conveyed to his wife, a right of possession as tenant by the curtesy ? We have already said that by the release of Mrs. Jameson to Maria Hakes, in our opinion the two estates for life and in tail meeting in the same person, being for the same land, the two connected in privity of right and title, the latter being the more extensive and immediately expectant, without intervening right, on the former, the former estate became merged, and the tenant in tail became the immediate vested holder of the estate of inheritance, subject only to the limitation of the will:” Lee on Title 255 being cited.
    15th. The Court erred in their opinion in saying, that by the deed of Mrs. Jameson, “Maria Hakes acquired the potential or right of seisin to this land; and by this acquisition her husband thereby became tenant by the curtesy:” 8 Ser. $ R. 175, Stoolfoos v. Jenkins; 5 Rawle, Chew v. Commonwealth, were cited by the Court.
    The 16th and 17th assignments related to the judgment.
    The 8th section of the Act of 10th April, 1849, provides that deeds of land within this state that have or may be made out of this state, the execution being duly acknowledged or proved by one of the subscribing witnesses before one “of the judges or justices of a court of probate or court of record of any state or territory within the United States, and so certified under the hand of the judge and seal of the Court,” shall be valid, &c.

      S. and O. J3. Wright, Woodward, and McOlintoclc, were for plaintiffs in error.
    The 8th sect, of the Act of 10th April, 1849, requires that deeds made out of this state for lands within it be acknowledged or proved before a judge of a court of probate or court of record of any state or territory in the United States, and so certified under the hand of the said judge and seal of the Court. The record of the deed was received upon production of Statutes of New York, showing that the court was a court of record. It was contended that such fact should have been shown in the certificate : 4 Ser. & R. 290; 1 Watts 329; 2 Id. 334; 14 Ser. & R. 432.
    It was also contended that deeds to bar entails were not within the provision of the 8th section of the said Act of 1849.
    As to the sixth bill, it was contended that the declarations of Mrs. Jameson that she had transferred her interest in the lands in dispute to the defendant, were inadmissible. She was not a party to the suit — she was dead — and if she had conveyed, her deed •was the best evidence of it: 2 Ser. & R. 473; 1 Barr 208; 2 W. & Ser. 221; 1 Yeates 305; 1 Bin. 470; 9 Ser. & R. 268; 15 Id. 71.
    As to the 8th assignment. Parol evidence of fraud and imposition are admissible for the purpose of contradicting a certificate: 3 Wh. 457; 9 Barr 34; 15 Ser. & R. 72.
    As to the 11th and 12th assignments. The Court held that Maria E. Hakes took an estate tail under the will, and that the plaintiffs took contingent remainders in fee, to vest on the determination of the life estate and estates tail, or any interests legally issuing out of them. But the plaintiffs contended that Maria, as the survivor of the granddaughters, took an estate in fee under the will, with a condition that this estate might be defeated on failure of issue at her death, and that the plaintiffs took by way of executory devise.
    The will is to be construed according to the intention of the testator. The intention of the testator was to vest a fee in his granddaughters, subject to being defeated by both of them dying without children. The word issue in the first clause in question, was used as equivalent to “heirs,” and the material question is the intent of the testator in the further terms, that if Maria and Augusta, his granddaughters, “ both die and not leave any issue from their bodies begotten, in that case, I will that my real and personal estate be equally divided between my sister Hannah Pierce or her heirs, and the heirs of my sister Mary Hunlock.” If Maria had left a child, would not such child have taken a fee, and thus the devise over been defeated? The point of time at which the devise over was to operate, if ever, was at the death of both of the granddaughters; if they died with issue from their bodies, or children, then the estate went over in fee to the plaintiffs by way of executory devise: 1 Ser. & R. 152; 3 Rawle 75; 1 Ser. & R. 155; 1 Ld. Ray. 203; 10 Barr 498, Johnson v. Currin; 3 Wh. 209-218; 2 Yeates 414; 1 Peere Wms. 523; 1 Barn. & Ald. 713; 7 Term Rep. 589; 1 Johns. Rep. 439; 5 Day 517; 4 Kent 278; 6 Barr 45; 2 Barr 335. The words “in that case" are equivalent to then: 7 Term Rep. 557.
    As to the 13th assignment. It was contended that the deed of Mrs. Jameson was not valid to convey her estate in the land, because the acknowledgment was defective; and further, because the deed was totally void, as not being signed by her or her agent lawfully authorized thereto by writing. The evidence was, that Lyman Hakes wrote her name to it: 3 Watts 129; 10 Watts 67; 1 Parsons 90.
    As,, to the 14th and 15th assignments. - If the deed of Mrs. Jameson were inoperative, then the life estate of Mrs. Jameson continued in her, and she survived Maria Hakes; and whatever estate Mrs. Hakes had under the will, she had not potential seisin or the right of seisin in the land, which are necessary to entitle her husband to tenancy by the curtesy: 8 Ser. R. 167, Stoolfoos v. Jenkins; 5 Rawle 161.
    Whatever the rights of Maria Hakes under the will were, she had divested herself of them by the conveyance of her husband and herself to Lyman Hakes of the 13th December, 1849. Her husband had no interest to be divested by the conveyance. She became married after the passage of the Act of 1848. By that Act, every description of property belonging to her is to be enjoyed by her as her separate property. The husband has no title in it until her death: 1 Parsons 489.
    It was contended that the claim of the defendant had therefore entirely failed, and that judgment should have been entered for the plaintiffs.

      Qollins and Hakes, for defendant in error.
    It is contended that Hannah Jameson, the widow, took a defeasible freehold estate for her life, vested in interest and in possession: 1 Th. Co. Litt. 484; 2 Bl. Com. 84-5 ; 4 Kent 23. Also, that the granddaughters, at the testator’s death, took vested remainders in common, in general tail expectant on the widow’s freehold for life. They took remainders vested: 4 Kent 195; 3 Greenleaf’s Cruise 224; 2 Bl. Com. 89; Preston on Estates 89; 2 Fearne 54; 1 Hilliard 494; 1 Dall. 175; 12 Ser. & R. 112; 8 Watts 432; 3 Harris 83.
    The two granddaughters took vested remainders in common: 3 Greenleaf’s Cruise 405-6; 2 Jarman 157-161.
    They took an estate tail in remainder: 2 Jarman 328; 3 Green-

      leaf's Cruise 295; Thos. Coke 427; 2 Roper on Leg. 353; Hayes on Est. Tail 35; 2 Fearne 247; Wild’s Case, 6 Rep. 16; 1 Eden 473; Cro. Eliz. 410; 1 Doug. 321; 1 East 269; 1 Mer. 20; 2 Keen 47; 3 Ser. & R. 470-477, Clark v. Baker; 1 Yeates 332.
    The devise over to the present plaintiff is indicative of an intent to give an estate tail: 9 Watts 447; 8 Harris 509, Vaughan v. Dickes; 6 Id. 72; 1 Wh. 139; 17 Ser. & R. 441; 4 Ser. & R. 409; 1 Id. 293; 2 Yeates 4; 4 Barr 102-8; 3 Rawle 59; 1 Dal. 47; 2 Bin. 455; 3 W. C. C. Rep. 369.
    It was also contended that, under the will in question, Maria and Augusta took contingent cross remainders in tail by implication of law: 2 Bl. Com. 281; 2 Jarman 458; 4 Kent 201; 3 Greenleaf's Cruise 412; 1 Thos. Coke 603. No part of the estate is to go to Hannah Pierce or her heirs and the heirs of Mary, until both Maria and Augusta be dead without leaving any issue from their bodies.
    In October, 1847, Augusta died unmarried and without issue, leaving Maria surviving; and if this view be correct, the whole estate in tail vested in Maria. There was then a life estate in the widow, and remainder in tail in Maria, remainder in fee to the plaintiffs. On 12th December, 1849, the widow, being actually seised of her freehold, surrendered her life estate to Maria. The actual entry of Maria upon the land was not necessary: 2 Thos. Coke 443, note A; 3 Greenleaf’s Cruise 555. The life estate of the widow was merged in the immediate remainder in Maria, and the only estates then existing in the land were the estate tail general of Maria vested in interest and in possession, and the remainder in fee simple vested'in these present plaintiffs. On the 13th December, 1849, Maria E. Hakes and Harry Hakes her husband conveyed the land to Lyman Hakes,- Jr., to bar the entail, &c.
    It was contended that the limitations in the will were not executory devises. Mr. Fearne divides executory devises of real estate into two kinds (1 Fearne 399). The first is where the devisor parts with the whole fee simple, but upon some contingency qualifies that disposition, and limits an estate on that contingency: 2 Id. 50. The limitation to the granddaughters was to them and to their issue. If the limitation to them was of the whole fee simple, then the word issue, unexplained in a will, is synonymous with heirs. The limitation to the plaintiffs was not a parting with by the testator of the whole fee simple to them. Thus, neither the granddaughters nor the plaintiffs took the whole fee simple, and therefore neither had an executory devise of the first kind.
    The second kind of executory devise under the division of Mr. Fearne is, “when the devisor gives a future estate to arise upon a contingency, but does not part with the fee at present.” When a contingency is limited to depend on an estate of freehold which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder only: 2 Saunders 380; 3 Term Rep. 763; 3 Cruise 461; 2 Yeates 400; 3 Ser. & R. 441; 1 Watts 476; 2 Ser. & R. 486. Mr. Jarman says, “ with respect to the cases in which the devise is executory, notwithstanding the creation of a prior estate of freehold, it is to be observed that, to constitute th'e ulterior limitation an executory devise in such á case, the precedent estate must not be merely liable to be determined before the ulterior limitation takes effect (as such liability only renders the remainder contingent), but it must be necessarily determinable before the taking effect of the ulterior devise:” 1 Jarman 778.
    In the present case there was an estate of freehold devised to the widow, which vested in actual possession on the death of the testator. This estate of freehold was capable of supporting a contingent remainder. After the decease of the widow the estate was to go to the granddaughters and their issue. It is true that the widow might marry again, and then her estate would cease; and if she still lived, the interest of the granddaughters would have no freehold to support it. They could not then take whilst the widow lived. So the plaintiffs could not take, because the granddaughters were not dead without leaving issue. So long as the widow continued unmarried, the interest of the granddaughters had a freehold to support it. But, according to authorities, if the freehold vested so that the subsequent limitations had a freehold support, no accident or subsequent event could make the subsequent limitations enure as an executory devise. If this is so, then the limitations in this will cannot be supported as an executory devise of the second kind.
    Further, the contingency upon which an executory devise is to take effect must happen within a short space of time, such as a life or lives in being and twenty-one years, and in some cases some months more thereafter. Now the limitation to the plaintiffs is, if both the girls shall die and not leave any issue from their bodies begotten, in that ease to the plaintiffs. Now, according to the rule, all executory limitations that are to take effect after a general failure of the heirs or issue of a prior taker, are void ab initio ; or according to Cruise (3 Cruise 462) or Smith, it must be so limited that from the moment of the limitation it may be said that it will necessarily take effect within a life or lives in being and twenty-one years after. See cases in 3 Har. Digest, p. 6-836; 1 Jarman 231.
    As to whether the estate was legally barred. Under the Act of 1799 the proceeding to bar an entail is entirely ex parte. It is not to receive any aid from the Court, but the Court is resorted to to give publicity to the deed and to perpetuate the evidence of it by having it entered on the public records: 4 Harris 95, George v. Morgan.
    It is not required by the Act of Assembly that to bar an estate tail by deed the tenant should reside in Pennsylvania. The tenant himself need not appear in Court and acknowledge the deed; a purchaser may have the enrolment effected: 4 You. $ Coll. 228. The deed, if enrolled within the prescribed time, takes effect from the execution as if enrolment had not been required. But a purchaser for a valuable consideration under a subsequent deed previously enrolled takes precedence: Hayes on Conveyancing 105. As to the acknowledgment. The Acts of Assembly of New York show that the County Courts are courts of record, and the County Judge the highest judicial officer resident in the county, and competent to take the acknowledgment of deeds: 3 Yeates 424; 5 Bin. 296.
    After evidence given to disprove the signature of Mrs. Jameson, it was competent to explain how it took place. She assisted in writing her name, and afterwards acknowledged the deed.
    The husband’s interest as tenant by the curtesy is not affected by the Act of 1848: 6 Harris 509, Peck v. Ward. His right by the curtesy remains as it was before the passage of the Act, except that he has not power to sell or encumber it. His right of enjoyment of the estate still exists. He is not bound to account to his wife for the occupation, nor, in case of his death, would his executors or administrators be accountable to the wife for the husband’s use of it. In the 10th section of the Act of 1848 is a proviso, that nothing contained in the Act “shall be taken to deprive the husband of his right as tenant by the curtesy.” His right as tenant by the curtesy is as real as her right of dower. The birth of issue as a constituent of curtesy initiate is dispensed with: 10 Barr 399. See also section 20 of Act of 22d April, 1850, Acts 553, explanatory of the Act of 1848. If the entail were not barred, and if the issue of Mrs. Hakes, if she had any, would have inherited, then on her dying intestate her husband would have been tenant by the curtesy.
   The opinion of the Court was delivered by

Lowrie, J.

It is impossible to avoid the conclusion that the estate granted by Samuel Jameson to his granddaughter was an estate tail; but, as it depended for its actual enjoyment upon the determination of a life estate, it becomes important to ascertain whether the deed of surrender was well proved; for a curtesy estate cannot attach to a mere remainder.

This deed was acknowledged before the President Judge of the County Court of Delaware county, New York, and certified by him under his hand and the seal of the Court. It is objected that the acknowledgment is not duly certified under the Act of 10th April, 1849,.because the judge does not certify the County Court to be a court of record; and that this defect is not cured by the proof that it is so. It is admitted that such a certificate by a justice of the peace is good, though he omits to state his official character. It follows that it is the fact, and not the certificate of a given official character that is required. And we see nothing in the Act of 1849 that indicates an intention to change this policy. We cannot construe Acts of Assembly in such a way that even their general intent cannot be understood without the aid of a professional criticism. Where they are intended as general rules to regulate the relations of citizens, they ought, if possible, to be construed in the way that a man of ordinary intelligence would understand them: otherwise we use them to bait the traps that rogues set for honest men. The impropriety of a strict and literal construction of such rules has been often rebuked by curative Acts of Assembly, which rub hard against constitutional principles, and which are sustained only because of their manifest equity as rules of construction.

There is some evidence that the deed of surrender was not actually executed by the grantor,' which is met by evidence that she was assisted by another in making her signature, or that it was made for her by another at her request, and by the proof that she acknowledged and delivered it as her deed. That cannot be called a deed executed by an agent, that is acknowledged and delivered by the grantor personally; and as this fact clearly appears, the validity of the deed is not affected by any doubt cast upon the mode of signing. There was no evidence to justify a verdict that she had not delivered it as her deed, and it follows that there was a valid surrender of the particular estate to the owner of the remainder in tail. The declarations of the owner of the particular estate, after that, could not tend to alter the result. And if it was attempted to invalidate the surrender by charging it with being affected with a fraud upon her, then her declarations were admissible to rebut the charge. It is not these declarations, but her surrender and the collateral legal principles, that affect the remainders. If she had an estate to surrender, all her acts that legally tend’ to show that she did surrender it are evidence of the fact, however serious to others may be the consequences of it.

The next step in this case is a very plain one. On the surrender of the particular estate the remainder in tail became immediately vested in possession and enjoyment, and then the title of the husband to curtesy became initiate, and the death of the wife made it complete.

But we have not as yet alluded to the transaction by which it was attempted to bar the estate tail, íior are vTe called upon to declare that it was effectual for the purpose intended, if the judgment can be sustained without it. It is argued that that proceed-mg has failed of its purpose, and yet been effectual in producing an unintended result: that the estate in fee simple or fee tail having been granted away in the lifetime of the wife, and not having been reconveyed before her death, she did not die seised and of consequence there can be no curtesy.

If we treat the conveyance made to Lyman Hakes in order to bar the estate tail as a real passing of the title out of the tenant in tail, then this would be so. But if we treat it as a mere form of barring the entail, then the legal title alone passed to Lyman Hakes, and the equitable title remained in the tenant in tail, as an equitable fee simple or fee tail, according as the bar of the entail was effectual or not. Certainly we must so treat the transaction, unless we hold that a deed made, for the consideration of one dollar and merely as a step in barring an entail, conveys an absolute title, which is impossible.

If however we cannot thus treat it, then surely we cannot sustain a part of an unfinished proceeding so as to produce a result not at all contemplated by the, parties; and if the deed to Lyman Hakes is of this character, it must be treated as incomplete and void. Take this case therefore in any way, the judgment below was right. If the proceeding to bar the entail was totally fruitless, then the husband is in as tenant by the curtesy of the estate in fee tail with remainder to the devisees. If it answered that purpose and only that, then he is in as tenant by the curtesy of an estate in fee simple, with reversion to the heirs of the wife. If it was totally void by reason of its incompleteness, the curtesy and entailment remain. If it passed the legal estate in fee simple to Lyman Flakes in trust for the grantor, then the case stands as a curtesy out of an equitable fee smple estate.

Judgment affirmed. .

Mr. Justice Woodward, having been of counsel in this cause, did not sit at the argument.


author: Woodward, J.

text:
    Jordan versus Stewart.
    1. Though the acknowledgment or probate of a deed is to qualify it for recording and to be used as evidence, yet an ex parte affidavit by one of the subscribing witnesses made after the deed had been recorded, endorsed thereon and alleging that an interlineation therein extending the covenant of warranty was made before execution and was made known to the grantors, was not admissible in an action of covenant between the parties to the deed founded on the warranty.
    2. Though an agent may prove his authority his mere declarations are not evidence of agency on his part. Before his declarations are admissible his authority as agent must be established by other evidence.
    3. The fact that a person in possession of a deed was the scrivener who wrote it and that he presented it for re-acknowledgment several years after its execution and after an interlineation therein became material, was not sufficient evidence of his being the agent of the grantee in so submitting it, and his declarations made at the time were not evidence of his authority as against the grantee.
    4. When no disputed claim exists in relation to an interlineation in a deed or other written instrument, the presumption is that the alteration was made before execution ; but when a contest exists and the instrument is offered in evidence and the alteration is beneficial to the party offering the instrument, it is not to be considered a forgery, but it is incumbent upon him to explain the alteration to the satisfaction of the jury. The burden of proof is upon him, and the question is for determination by the jury.
    Error to the Common Pleas of Delaware county.

    This was an action of covenant to May Term, 1851, by George Jordan against John Stewart, on a deed of conveyance by Stewart to Jordan, which, on the part of Jordan, the plaintiff, was alleged to contain a clause of general warranty, warranting the title to the lands conveyed.
    On the 20th of June, 1884, John Stewart and wife conveyed to George Jordan a tavern house and tract of land in Delaware county for $2250. The plaintiff went into possession and continued to occupy till April, 1847, when an action of ejectment was brought by Mary Crawford and others on a title paramount to that of Stewart against Jordan, and a recovery had for four-fifteenths of the property conveyed. The judgment in this action was reviewed by the Supreme Court, and affirmed; anda habere facias possessionem executed. The plaintiff in this suit then purchased the adverse claim for $1000, paid the costs and counsel fees, and brought this action to indemnify himself for the loss sustained.
    The defendant pleaded non est factum — denying that he gave a deed of general warranty.

    The deed exhibited contained appropriate words of special warranty, with words interlined which converted the clause from a special to a general warranty. The words interlined were, “or any other person whatsoever.” The defendant alleged that the deed was altered by the interlineation after its execution. The plaintiff alleged that it was done before its execution. The evidence adduced on either side had relation to this question.
    John L. Pearson, of Delaware county, a justice of the peace and a surveyor and conveyancer, wrote the deed, and was a witness to its execution. He died in 1842.
    The deed was entered for record on the day of its date, and remained in the recorder’s office at Chester for upwards of five years. It was taken from the office by Jordan, the plaintiff, in 1839, and soon after Pearson, by an affidavit endorsed on the deed and taken before a justice of the peace, alleged^that he was present and saw the deed executed and delivered — that the interlineation in question was made by the affirmant in his proper handwriting, before the deed was signed by Stewart and wife, “ and was made known to them.” He further affirmed as to the handwriting of the grantors and the witnesses, of whom he was one. This affidavit, dated 25th November, 1839, was offered in evidence, and rejected. The first bill of exceptions related to the rejection of'the affidavit.
    The second bill related to the admission of testimony. The defendant called a witness to prove that John L. Pearson called at his house with the deed in question in 1838 or 1839, and that in conversation with Stewart, the defendant, he stated that he had been sent there by Jordan, to get the deed re-acknowledged by Stewart. The declarations of Pearson, thus alleged to have been made, were objected to; the objection was overruled, and the plaintiff excepted. The deed was not re-acknowledged.
    The interlineation was not in the record of the deed.

    It was testified by the person who recorded the deed, that before the affidavit of J. L.’ Pearson was put upon it, he, in company with Jordan, examined the record to ascertain whether the interlineation was on the record. Jordan insisted that the interlineation existed when the record was made. Jordan then said he had had the deed for two or three weeks — and said that there was some talk of commencing an action for the land, and he had come to see whether the words interlined were recorded. The witness further said the color of the ink of the interlineation was not different from that used on the rest of the deed.
    Testimony was given of the good character of J. L. Pearson, the scrivener.
    The plaintiff’s counsel asked the Court to charge that the presumption of law is, that an interlineation in a deed was made prior to its execution and delivery; and that this presumption stands in place of proof till the contrary appears.
    The Court charged the jury that in considering whether the interlineation in the deed was made before or after its execution, the appearance of the deed and of the interlineation, and all the circumstances relating to the transaction, together with the character of the conveyancer, were proper subjects for their consideration. He observed that the interlineation was of material importance to the holder of the deed; and he refused to instruct the jury that the presumption of law was that the interlineation was made before the execution and delivery of the deed, and that such presumption stood in place of proof till the contrary appeared; but he referred the deed, and all the evidence relating to the interlineation, to the jury to determine whether it was made before or after the execution and delivery of the deed.
    March 5th, 1853, verdict for defendant.

    The rejection of the affidavit of J. L. Pearson, the subscribing witness, endorsed on the deed, was assigned for error. 2. The admission of the testimony as to declarations made by Pearson in 1838 or 1839, when he submitted the de,ed to Stewart for re-acknowledgment, that in doing so he was acting at the instance of Jordan, the plaintiff. 3. In refusing to charge as was requested.

      Lewis, for plaintiff in error.
    It was contended that, by the Act of 1715, probate of a deed could be made by a subscribing witness. That it was evidence that the conveyance, as it existed when the proof was made, was the deed of the parties. That though such testimony has something of the character of ex parte evidence, yet every subscribing witness is regarded as agreed upon by the parties to the deed: 1 Greenl. Ev. 569; 6 Hill 305; 9 Barr 445.
    2. There was no proof of the agency of Pearson. His declarations of themselves were not evidence of his agency: 2 Whar. 340; 3 Id. 40. Acts and declarations together, without some proof of antecedent authority or subsequent ratification, are not evidence: 1 Yeates 502; 4 Ad. & E. 53, Rutzen v. Farr. The mere possession of the deed by Pearson, without more, was not sufficient to implicate Jordan in his acts or declarations: Story on Agency, 87. No act was done by Pearson at the time. His declarations alone were offered that he was sent by Stewart, and the object of his mission, and they were inadmissible: 6 Car. & Pay. 669; 7 M. & W. 595. A new trial may be granted for the admission of improper evidence, notwithstanding there appeared to be preponderating evidence in support of the verdict: 4 Ad. & E. 53.
    3. It was contended that the presumption of law was, that the interlineation was made before the execution of the deed. “ A deed cannot be altered after it is executed, without fraud or wrong, and the presumption is against fraud or wrong:" 5 Law & Eq. 349; 1 Metc. 234; 20 Verm. 217-61; 9 Barr 187. The rule may be restricted to deeds and writings not negotiable.

      LJ. Darlington, for defendant.
    The affidavit of Pearson was ex parte. Jordan got the deed from the recorder’s office, and the presumption was that Pearson got it from him: 9 Porter 210; 2 Greenleaf’s Ev. § 65. The presumption was not that the interlineation was made before the execution of the deed.
   The opinion of the Court was delivered by

Woodward, J.

The grantee in a deed which has been duly acknowledged is at liberty, undoubtedly, to make probate of it by a subscribing witness. Under our Acts of Assembly both modes of authentication are open to him, and where for any reason one is not satisfactory, he may resort to the other; but the w'hole effect, whether of one or both, is to qualify the instrument to be recorded, and used as evidence. Still we are of opinion that the Court were right in rejecting the evidence of probate offered here, and which is set forth in the first bill of exceptions, for it was not necessary for either of the above purposes, and ic contained statements in regard to the interlineation of which an ex parte affidavit could not be competent evidence. Duly executed and acknowledged by the grantors, and recorded, the deed was as effectually authenticated, without probate by a subscribing witness, as with it. The only motive for superadding the probate, after question had arisen on the deed, was, evidently, to secure the testimony of the subscribing witness in relation to the interlineation; ■ but what he said on this subject was no necessary part of the probate, and as it was said ex parte, was no more competent on the tidal than if it had been written in a voluntary affidavit, or anywhere else than the back of the deed. The facts he stated were competent, but the medium of proof, wholly incompetent, was properly rejected.

The ground on which the evidence of Pearson’s declarations was admitted was his agency for Jordan. If Pearson went to Stewart to procure a re-acknowledgment of the deed at the instance of Jordan, and as his agent, his declarations in connexion, with the execution of the mission would be competent as part of the res gestee. Whenever the act of an agent is admissible in evidence, it is competent to prove what he said about the act while he was doing it.

But was Pearson Jordan’s agent ? There was no direct proof of it except the declarations objected to. An agent is competent to prove his own authority where it is by parol, but his declarations in pais are not proof of it; and though they become evidence, as part of the res gestee, if made in the conduct of the business intrusted to him, yet other evidence must 'first establish his authority to speak, before his words shall bind his principal. Yet without such precedent proof, the Court admitted the declarations of Pearson, and gave them in charge to the jury without instructing them that unless the agency were proved Jordan was not responsible for them. Agency may be made out as an implication from circumstances, as well as by direct proof. Implied agencies result often out of the relations of employer and employee, husband and wife, parent and child, counsel and client, partners and the less definite relations into which men are brought in the pursuits of business; but in all such cases it is a conclusion of fact to be deduced from circumstances by a jury, rather than assumed by the Court. Apart from Pearson’s declarations we see no circumstances in proof from which a jury could reasonably infer his agency; yet, such as they were, they were not submitted for this purpose, but the Court assumed his agency, and accordingly admitted the declarations and submitted them without qualification to the jury. Herein was manifest error. If Jordan was to be prejudiced by Pearson’s conversations, the authority to speak should first have been shown; or if the authority were to be deduced from circumstances, the jury should have been instructed to disregard the declarations until other evidence had persuaded them that authority had been given.

It is impossible for us to measure the influence of Pearson’s declarations on the verdict; but as they constituted the main evidence of agency — all the direct proof there was of it — it is apparent that whatever effect the attempt to obtain a re-acknowledgment of the deed may have exerted in the jury box, was due to these declarations. The question in the cause was whether the interlineation of words which constituted a covenant of general warranty had been made before or after execution of the instrument, and the defendant was permitted to show that a person calling himself an agent of the plaintiff, applied to him to re-acknowledge the deed four years after he had executed and acknowledged it, and just at the time when such a covenant was discovered to be important to the plaintiff. This may have proved a condemning fact, and should have been brought into the cause by legal and legitimate evidence. • If Jordan sent Pearson, Stewart should have proved it. If he meant that the jury should infer it, some more decisive facts should have been furnished as the ground of presumption than that Pearson was the scrivener who drew the deed, and that four or five years afterward he presented it for re-acknowledgment. The one of these facts was calculated to explain the other; for how natural that a scrivener, when his omission to note an interlineation had come to light, and was likely to prove fatal to the rights of the grantee, should set himself about endeavoring to repair the mischief. Without further discussion of this point, having indicated the grounds on which we think there was a mistrial, we pass now to a consideration of the error assigned to the charge.

The plaintiff called on the Court to say that the presumption of law is that an interlineation in a deed was made prior to its execution and delivery; and that this presumption stands in the place of proof till the contrary appears. The Court treated this as an abstract proposition, which they declined to answer, but submitted all the evidence in the cause to the jury to say whether the presumption is one thing or the other.”

When we look at a written instrument containing an interlineation or erasure, without reference to contested rights, the natural and fair presumption doubtless is that the alteration was made before signature, because if altered after execution, it would be forgery, which is never to be presumed. Instruments of writing, executed with the solemnities appointed by law, are, like the men who made them, to be presumed innocent until some circumstance is shown to beget a counter presumption. But when a contest occurs, and the instrument is offered in evidence, the question at once arises whether the alteration is beneficial to the party offering it; if it be not, as in the instance of a bond or note altered to a loss sum, the primd facie presumption is unchanged; if it be, as was the case here, we do not presume a forgery, but we hold the party offering it in evidence and seeking advantage from it, bound to explain the alteration to the satisfaction of a jury. The initiative and the burden of .proof, are thrown on him. If the interlineation or erasure have been noted in the attestation clause as having been made before signature, this is sufficient; or if the similarity of ink and handwriting, or the conduct of the parties, or other facts proved, shall persuade a jury that it was so made, the instrument is relieved from suspicion, and the party offering it is entitled to the benefits of it. So long as any ground of suspicion is apparent on the face of the instrument, the law presumes nothing, but leaves the question as to the time when it was done, to be ultimately found by the jury upon proofs to be adduced by him who offers it in evidence: 1 Greenleaf, pl. 564. It was once decided in Pennsylvania by Chief Justice McKean, that an alteration should be presumed to be made after the execution of the instrument: Morris v. Vanderen, 1 Dal. 67; but this is a harsh rule, and has not been followed. Oúr books contain a series of cases that settles that where a bond, deed, or any other instrument is offered with an interlineation or erasure that is material, it is a question for the jury on all the circumstances, whether the alteration was made before or after signature: Stahl v. Berger, 10 Ser. & R. 171; Babb v. Clemson, Ibid. 424; Barrington v. Bank of Washington, 14 Ser. & R. 422; Heffelfinger v. Shultz, 16 Ser. & R. 46; Hudson v. Reel, 5 Barr 279.

In the case in hand there were important facts in evidence bearing on the fairness of this Arery material interlineation. On the one hand was the fact that the record copy of the deed did not contain the interlined words; on the other the resemblance which these words bore to the body of the deed, both as to ink and chirography. Beside these, there were various other circumstances tending- more or less to impeach or establish the instrument. To have affirmed the plaintiff’s proposition, in view of such evidence, would have been to assert a mere abstraction, instead of taking a step towards the decision of the issue. Although the Court might properly have developed the law of the case more fully than they did, we think there was no error in referring the evidence to the jury on the question whether the interlineation was made before or after the. execution of the deed; but for submitting Pearson’s declarations as part of the evidence, the judgment is reversed and a venire de novo awarded.


text:
    The Philadelphia Insurance Company versus The Washington Insurance Company.
    1. An insurable interest can spring from a prior insurance; and may arise from a time policy as well as from any other.
    2. In the contract of reinsurance is implied the same subject-matter of insurance as in the original policy — against' perils of the same kind — not to a greater but it may be to a less degree than stipulated for in the first policy. It need not be for the same specific risk insured against in the first policy.
    3. An insurance having been effected on a brig, “lost or not lost,” for five months from a time specified (part of which had. transpired), “ with use of the Globe (Tampico and ports in Texas at all seasons excepted).” Within the time insured, a reinsurance was effected for a less amount for a single voyage specified, within the bounds not prohibited. Held, that the reinsurers were bound by their contract.
    4. The President of the Insurance Company, defendant in a suit, who was not a stockholder in the company, nor party to the record or interested in the suit, was a competent witness on the part of the defence.
    Error to the District Court, PTiiladelpTiia.

    This was an action on the case by The Philadelphia Mutual Insurance Company v. The Washington Mutual Insurance Company.
    The Washington Insurance Company, on the 15th August, 1848, made an insurance at Philadelphia, in the sum of $3000, on the brig Delaware, lost or not lost, “at and from June 6th, 1848, at noon, for five calendar months, with use of the Globe (Tampico and ports in Texas at all seasons excepted); and if at sea at the expiration of the time, the risk to continue at same rate of premium,” &c. A. Eorsythe was master.
    On the same day, the brig being then at sea on her voyage to Havana, the Philadelphia Mutual Insurance Company; at the instance of the Washington Company, reinsured $1500, on the said brig, “at and from Rio de Janeiro to Havana, and at and from thence to Philadelphia” — subject to such risks, valuations, conditions, and mode of settlement as are or may be assumed or adopted by them — for account of whom it may concern.
    The vessel met with injury on her passage from St. Thomas to Havana, on or about the 30th August, and part of her cargo was thrown overboard to lighten the ship; after which it reached Havana on the 12th September. Other injury was sustained on the voyage to Philadelphia,- at which place it arrived about the 27th or 28th of January, 1848, having left Havana about the 9th of January.
    On the trial, an account between the two companies was given in evidence on part of the plaintiff.
    On part of the defendants was then given in evidence the policy of reinsurance to the amount of $1500. The policy of the defendants, in the sum of $8000, being the first policy, was then offered in evidence on the part of the Washington Insurance Company, defendants, for the purpose of establishing in themselves an insurable interest. It was objected to because the reinsurance was not coextensive with the principal insurance, one being a time policy, the other for a specific voyage. It was admitted, and exception was taken.
    On the part of the defendants, the president of the trustees of their company was called, who said he was a salaried officer — that he gave the order for the reinsurance — that he was not a member of the company, nor interested in the suit.
    He was objected to as being an officer of the company, a party to the record, and the person by whom the insurance was effected. He was admitted, and exception was taken.
    On part of the defendants, the deposition of the master, of the brig Delaware was offered. It'was objected to on the ground of interest in him without a release. It was admitted.
    It was testified that the time of voyages from Rio to Havana was usually about forty days.
    Error was assigned to the admission of the first policy of insurance. 3. The admission of the deposition of the master of the brig. 4. The admission of the president of the Philadelphia Insurance Company.

      Williams, for plaintiff in error.
    6r- M. Wharton, for defendant in error.
    There is nothing in the popular or legal meaning of the term “reinsurance” which amounts to an averment that the reassured seeks an indemnity against a loss under the same specific contract into which he had entered; but it implies that he is seeking indemnity, in whole or in part, against the risk, or a portion of it, which he has taken on himself: Arnould 288, § 19; 1 Phillips 204; Marshall on Insurance 112. Garriers may insure against their risks as carriers: 3 B. & Ad. 478. Marine insurance is a contract of indemnity against loss by perils of the sea: 1 Arnould 11.

      A time policy covers any voyage which the ship may make, and any sea loss she may sustain within the time limited in the policy: 1 Arnould ch. 14, p. 409-10; 12 Peters 378.
   The opinion of the Court was delivered by

Woodward, J.

The only questions on this record are questions of evidence, the first and most material of which relates to the policy of insurance issued by the defendants on the 15th August, 1848, to William Cummings, on the brig Delaware, for $3000. Having given in evidence the plaintiffs’ contract of reinsurance on this vessel for $1500, the defendants offered their own original insurance for the purpose of establishing in themselves an insurable interest; the objection to which was that the reinsurance was not coextensive with the principal insurance, one being a time policy, the other for a specific voyage. Had the fact been that the reinsurance was larger than the original risk, there would have been force in the objection, for then the reinsurance would have been beyond any insurable interest possessed by the defendants. Rut the fact was the other way. Roth policies were issued on the 15th August, 1848. The Washington Company were the original insurers, and their risk was $3000 on the brig, “lost or not lost, at and from June 6, 1848, at noon, for five calendar months, with use of the Globe’ (Tampico and ports in Texas at all seasons excepted); and, if at sea at the expiration of the time, the risk to continue at same rate of premium.” The reinsurance of the Philadelphia Company was for $1500 on the brig, “ at and from Rio de Janeiro- to' Havana, and at and from thence to Philadelphia;” a voyage which, according to the proofs, takes about 40 days from Rio to Havana, and, as this vessel sailed, 18 days from Havana to Philadelphia, she was at sea on her voyage to the Havana at the date of these policies, having sailed from Rio on the 15th July, 1848. It is apparent from these facts that while the defendants, in virtue of their insurance, were bound for any voyage she might make or commence within five months from the date indicated, the plaintiffs were bound, in virtue of their reinsurance, only for the one voyage, partly performed when they assumed the risk, and capable of being finished far short of the five months; and thus their risk was less and included within that of the defendants. Now, it is distinctly admitted by the learned counsel of the plaintiffs, that, if the defendants’ policy had been for the particular voyage specified, they would have had such an interest as would have entitled them to purchase a reinsurance; but we have not been shown how, when a less interest would have qualified, a greater interest disqualified them to reinsure. If an insurable interest can spring from a prior insurance, which, since the judgment in the celebrated case of Lucena v. Craufurd, before the House of Lords, 3 Bos. & Pull. 75, I believe has not been doubted, why not from a time policy as well as any other ? In respect to the right of deviation and warranty of sea-worthiness, and perhaps in other legal consequences, time policies differ from voyage policies; but for the single purpose of creating an insurable interest, I can see no reason and can find no authority for a distinction. If a distinction were to he made, I should think it would be in favor, rather than against, the time policy; for he who insures a ship for a period of time that is to cover a variety of undefined voyages, comes much nearer to the position of an owner, has a far deeper stake in her welfare, than he who insures her simply for one specified voyage which she is to perform within that time. This is too obvious to need illustration.

If then a time policy, as well as any other, can create air insurable interest, why are not the plaintiffs bound by their, contract of reinsurance ? Because, say counsel, every reinsurance necessarily contains an assertion that the specific risle had been previously taken by the first insurer. This expression, specific risle, is not in the definition of reinsurance as given by Arnould, Phillips, or Marshall. According to Arnould, reinsurance is a contract by which, in consideration of a certain premium, the original insurer throws upon another the risk (or according to Marshall, part of it) for which he has made himself responsible to the original assured, to whom, however, he alone remains liable on the original insurance. The other writers define the contract to the same effect. The risk, or part of it, implies the same subject-matter of insurance in both policies, and hence in Merry v. Prince, 2 Mass. R. 176, an unsuccessful attempt was made to apply a reinsurance of a policy on vessel and cargo, to other policies on the cargo only. And these expressions also imply the same perils in kind, but not in quantum or duration. Thus, if the insurance be against perils of the sea, the reinsurance must be against perils of the sea; but whilst it may not be against more, it may be against less perils of the sea than the original insurance. The reason of this required identity in the subject-matter and the kind of perils, is, that the first insurer has no insurable interest except in the thing and against the kind of perils in respect of which he has insured. This is plainly developed by Phillips on Insurance, p. 56, where he says, “ An underwriter, by subscribing a policy, acquires no interest in the subject insured, yet he acquires an insurable interest, and having rendered himself directly liable to loss from certain perils, may stipulate to be indemnified against these perils. His interest, however, exists only in relation to the perils against which he has insured in the original policy.” Yet reinsurance is not an endorsement or readoption of the first policy, for Arnould adds to his definition of the contract “ that it is totally distinct from and unconnected with the primitive insurance.” Neither the rate nor amount of premiums — the amount insured — -nor the duration of the policies are similar, and the, liabilities are to different parties, the reinsurer being never liable to tbe first assured, save, perhaps, in the exceptional case of the first insurer’s insolvency. The proposition, then, that reinsurance is a retaking of the specific risk, is- not sustainable in the sense contended for, and if it were, would deprive commerce in a great degree of the benefits of such contracts.

Before any party has a right to an insurance he must have an interest to protect, and as the interest of a first underwriter springs from his contract and must be measured by the liability assumed, he can have no insurable interest beyond that. But because the greater contains the less, the whole the parts, he has an insurable interest in every portion of his risk, which by reinsurance he throws on another. This seems to be the sum of the whole matter, and hence it follows that the policy of the defendants was properly admitted in evidence to establish their insurable interest, both when the reinsurance was made and when the loss occurred, and having shown such an interest, the plaintiffs were bound to indemnify to the extent of the terms of their own contract.

Without the pleadings in the case, it is impossible for us to say whether the verdict and judgment could ever be evidence against Forsythe, the master of the brig, and, therefore, we cannot pronounce on his competency as a witness. For aught that appears in the paper-books, he was competent. There is not a shadow of ground for the objection to Riche. Though the president of the company, he was not a stockholder nor party to the record. Having no necessary interest in the event, he was competent, and his credibility was for the jury.

The errors have not been sustained, and the judgment is affirmed.