text:
    Adams’s Estate.

      Trusts and trustees — Cotrustees—Liability for default of cotrustee.

    A trustee is not an insurer of trust funds against the possibility of loss nor a surety for his cotrust^e. His undertaking is personal, requiring of him good faith and reasonable diligence; and if these requirements be met, he is not liable for losses occasioned by the bad faith or embezzlement of his cotrustee. The law requires of the trustee fidelity to the trust, and the exercise of the same measure of diligence that a man of ordinary prudence may be expected to exercise in the care of his own property under the same circumstances.
    While as a general rule a trustee is not liable for trust funds received by his cotrustee, yet he is required to exercise a general superintendence and care over the trust. If he hear of any fact tending to call his attention to mismanagement or misapplication of trust funds by his co-trustee it is his duty to intervene and prevent a devastavit. His failure to do so would be a breach of trust imposing liability upon him for loss.
    The joint receipt by cotrustees of trust funds imposes a joint liability. The obligation rests upon each trustee to exercise good faith and usé reasonable diligence in executing the trust. If through the negligence or default of either trustee, the other trustee is permitted to dissipate the funds or convert them to his own use, he is responsible for the loss. The possession of the trust funds is joint, and it is the duty of each trustee to exercise good faith and reasonable care to protect the trust funds against his cotrustee as well as against others.
    The fact that one of two trustees bestowed the same degree of care on his own interest in the trust estate and upon his own private securities as he did upon the interest of the other cestuis que trustent is no excuse for his dereliction of duty in not properly guarding the trust estate from a default on the part of his cotrustee; nor is the illness of such a trustee prior to the default of the cotrustee an excuse, where the trustee had knowledge of actions on the part of his cotrustee before his illness, which should have put him on guard against a possible misappropriation of the trust funds.
    Over confidence actually reposed in a brother, is not a sufficient justification for failure to perform a duty in the administration of a trust estate.
    The fact that one of two trustees informs the cestui que trust of suspicious actions of his cotrustee in regard to the trust securities, does not relieve the trustee from taking steps to prevent a repetition of such conduct and to guard the estate from any further attempt to dispoil it. If .in such a case the trustee assures the cestuis que trustent that they need have no further anxiety about the estate, and that he has made proper arrangements to protect it, it is not incumbent upon the cestuis que trustent under these circumstances to employ counsel to compel the trustee to perform a duty which he himself recognized as a duty.
    Two trustees of a decedent’s estate, after a third trustee had been discharged, retained joint possession of the funds and distributed the ■income as required by the trust. The securities in which the trust funds were invested were kept in a box in a bank to which each of the trustees had access. One of the trustees knowing that his cotrustee’s financial condition was bad, visited the box alone and discovered that all of the securities had been removed. The trustee demanded the other trustee, who was his brother, to return the securities, and this was done on the following day. He did not ask why they had been removed without his knowledge or for what purpose they had been removed. One of the cestuis que trustent testified that a year or so after this transaction the trustee told her about the removal, and that he had compelled the cotrustee to return the securities, that she need have no further anxiety about it, and that he had arranged with the bank that both trustees must be present when the box was opened. It appeared that the trustees had agreed between themselves that both should be present when the box was opened, but there was no evidence to show that the bank had been made a party to the agreement, or had been served with any notice of the agreement between the trustees. Eight years after the incident of the removal of the trust funds the trustee became a helpless invalid. Just before this time, he made, with the cotrustee, a joint visit to the box, and the securities were found intact. Two years thereafter the cotrustee died suddenly, and an examination of the box made immediately thereafter showed that it was empty and that all of the securities were gone. Held, that the surviving trustee was liable to account for the loss of the securities.
    Argued April 1, 1908.
    Appeals, Nos. 81 and 82, Jan. T., 1908, by Clara H. Adams and Martha A. Moran, from decree of O.-C. Phila. Co., Jan. T., 1894, No. 378, dismissing exceptions to adjudication in estate of Robert Adams, deceased.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication. The orphan’s court in an opinion by Ashman, P. J., dismissed the exceptions to the adjudication, Penrose, J., and Dallett, J., dissenting.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing the exceptions of Clara H. Adams and Martha A. Moran to the refusal of the court to surcharge BL. Carlton Adams, surviving trustee, with securities misappropriated by his cotrustee, Robert Adams, Jr.

      Joseph De E. Junkin, with him Charles Sinnickson and Frederick C. Neidbourg, Jr., for appellants.
    The fund was awarded to H. Carlton Adams and his cotrustee, jointly, and they received it jointly, and each is responsible for the acts of the other. Such responsibility cannot be shifted by delegation of authority : Wayman v. Jones, 4 Md. Ch. 500 ; Monell v. Monell, 5 John. Ch. (N. Y.) 283; Hughlett v. Hughlett, 24 Tenn. 453; Lewis v. Nobbs, L. R. 8 Ch. Div. 591; Fesmire’s Est., 134 Pa. 67; In re Evans, 2 Ash. 470 ; Glenn v. McKim, 3 Gill (Md.), 366; Fox v. Tay, 89 Cal. 339; 1 Perry on Trusts, sec. 418; Colburn v. Grant, 181 U. S. 601 (21 Sup. Ct. Repr. 737); Laroe v. Douglass, 13 N. J. Eq. 308; Schenck v. Schenck, 16 N. J. Eq. 174; Ringgold v. Ringgold, 1 Har. & G. (Md.) 11; Crane v. Hearn, 26 N. J. Eq. 378; Smith v. Pettigrew, 34 N. J. Eq. 216; Crane v. Howell, 35 N. J. Eq. 374; In re Nills, 113 N. Y. 547 (21 N. E. Repr. 687); Meldon v. Devlin, 31 N. Y. App. Div. 146 ; aff’d, 167 N. Y. 573 (60 N. E. Repr. 1116); Weetjen v. Vibbard, 5 Hun (N. Y.), 265 ; Clark v. Clark, 8 Paige (N. Y.) 152 ; McMurray v. Montgomery, 32 Tenn. 374; Matter of Westerfield, 32 N. Y. App. Div. 324; s. c., 61 N. Y. App. Div. 617; Wilmerding v. McKesson, 103 N. Y. 329 (8 N. E. Repr. 665).
    Where there has been a joint account and adjudication thereon, and award to joint trustees to hold assets, there is a joint possession of such assets and each trustee is severally liable therefor. And if one trustee commits a devastavit with respect thereto, in consequence of the other having trusted him to deal with them, then that other is liable; for the rule is, that he who confides, shall suffer bj' a breach of the trust: Ducommun’s Appeal, 17 Pa. 268 ; Hengst’s App., 24 Pa. 413 ; Lightcap’s App., 95 Pa. 455 ; Pim v. Downing, 11 S. & R. 66; Evans’s Est., 2 Ashmead, 470 ; Donnelly’s Est., 11 Pa. Dist. Rep. 211; DeHaven v. Williams, 80 Pa. 480 ; Weldy’s App., 102 Pa. 454 ; Strong’s Est., 160 Pa. 13.
    If a trustee becomes aware of any fact tending to show that his cotrustee is committing a breach of trust, or learns of any fact endangering the trust, he must communicate it to his co-trustee, or make application to the court and take active measures to protect the fund, or he will be liable: Stell’s App., 10 Pa. 149 ; Wilson’s App., 115 Pa. 95 ; Hilles’s Est., 13 Phila. 402; Evans’s Est., 2 Ashmead, 470 ; Hall v. Boyd, 6 Pa. 267; Myer v. Myer, 187 Pa. 247; Fesmire’s Est., 134 Pa. 67; Irvine’s Est., 203 Pa. 602 ; Beatty’s Est., 214 Pa. 449.

      Thomas Learning, for appellee.
    The finding of the fact by the court below that IT. Carlton Adams was not guilty of negligence should not be reversed because of the episode of July 8, 1896, which was fully considered. H. Carlton Adams bestowed precisely the same degree of care upon his own vested interest in the estate and upon his own private securities, both of which were stolen, as he did upon his step-relative’s interests. A trustee is liable for negligence alone, and the measure of his duty is that he shall exercise such care as reasonable men use in their own affairs. This the learned auditing judge and the court in banc have found as a fact was done: Fesmire’s Est., 134 Pa. 67 ; Graham’s Est., 218 Pa. 344 ; Jones’s App., 8 W.& S. 143.
    April 27, 1908:
    This is not a case where one of two innocent persons must suffer. All must suffer, no matter who prevails in this appeal, because all have been robbed.
   Opinion by

Mr. Justice Mestrezat,

The duties and liabilities of cotrustees in Pennsylvania are well settled. A trustee is not an insurer of trust funds against the possibility of loss nor a surety for his cotrustee. His undertaking is personal, requiring of him good faith and reasonable diligence, and if these requirements be met, he is not liable for losses occasioned by the bad faith or embezzlement of his cotrustee: Fesmire’s Estate, 134 Pa. 67. The law requires of the trustee fidelity to the trust, and the exercise of the same measure of diligence that a man of ordinary prudence may be expected to exercise in the care of his own property under the same circumstances: Jones’s Appeal, 8 W. & S. 143. While as a general rule a trustee is not liable for trust funds received by his cotrustee, yet he is required to exercise a general superintendence and care over the trust. I f he hear of any fact tending to call his attention to the mismanagement or misapplication of the trust funds by his cotrustee it is his duty to intervene and prevent- a devastavit. His failure to do so would be a breach of trust imposing liability upon him for the loss. Mr. Perry in his work on trusts, section 419, says: In all cases, if a trustee becomes aware of any fact tending to show that his cotrustee is committing a breach of trust, or if he learns any fact endangering the trust funds, he must communicate it to his cotrustees or make application to the court, and take active measures to protect, the fund, or he will be personally liable for its loss.” In effect the same doctrine is announced in Pim v. Downing, 11 S. & R. 66, where Tilgbman, C. J., said (p. 71): “ It is clear enough, that where one who does not receive the money consents that the other should misapply it, particularly where he has it in his power to secure it, he is responsible.”

The joint receipt by cotrustees of trust funds imposes a joint liability. The obligation rests upon each trustee to exercise good faith and use reasonable diligence in executing the trust. If through the negligence or default of either trustee, the other trustee is permitted to dissipate the funds or convert them to his own use, he is responsible for the loss. The possession of the trust funds is joint, and it is the duty of each trustee to exercise good faith and reasonable care to protect the trust funds against his cotrustee as well as against others.

The trust funds in the Adams estate were awarded to the three trustees, sons of the testator, on June 4, 1895. They accepted the funds jointly and proceeded to administer them jointly. Within a year one of the three trustees was discharged. The other two trustees retained joint possession of the funds and distributed the income as required by the trust. The securities in which the trust funds were invested were kept in a box in the Western National Bank of Philadelphia to which each of the trustees had access. On July 8, 1896, H. Carlton Adams, the surviving and accounting trustee, knowing that his cotrustee’s financial condition was bad, visited the box alone and discovered that all of the securities had been removed. This greatly troubled him and naturally aroused his suspicions. He called upon his brother, Robert Adams, Jr., the other trustee, who admitted that he had taken the securities from the box and requested Robert to return them by the following day, which he did. The trust funds in the box consisted of unregistered securities, coupon bonds, etc., which could be negotiated by either of the trustees. At the time the accounting trustee discovered the removal of the securities from the box and requested his brother to return them, it does not appear what, if anything, was said why they were removed without the knowledge of the cotrustee, or what purpose Robert had in removing them. In a subsequent conversation between the accounting trustee and Mrs. Moran, one of the cestuis que trustent, in 1897 or 1898, he told the latter, as she testifies, that the securities had been taken by his brother and put up as collateral; that he had compelled him to return the securities and that she need have no further anxiety about it; that he had arranged at the bank that both executors must be present when the box was opened. The testimony of the appellee’s wife tended to show that the accounting trustee told Mrs. Moran that the securities had simply been placed in another box. The trustees agreed that each should have access to the box containing the securities of the estate and visit the box together, but, as the auditing judge found, there was no evidence showing the bank to have been a party to the agreement or that any notice had been served upon the bank that the trustees had made any such agreement between themselves.

In 1904 H. Carlton Adams, the accounting trustee, became an invalid and has continued such to this time. The auditor found that he was “ a helpless invalid, a physical wreck, unable to lift his arm. . . . His mental faculties are weakened and his memory poor. He is unable to carry on a coherent conversation and in talking rarely takes the initiative.” He also found “ that, as a rule, his answers were more or less exact when, under agreement of counsel, his depositions were taken at his present place of abode.”

The last joint visit of the two trustees to the box containing the securities was on February 8,1904, and the securities were then intact. Eobert Adams, Jr., one of the trustees, died suddenly on June 1, 1906, and an examination of the box on June 4, 1906, showed that it was empty and that all the securities were gone. The surviving trustee has refused to account for the securities, alleging that his brother and cotrustee, Eobert Adams, Jr., removed them from the box and converted them to his own use. The accountant claims that the securities were not lost by reason of his failure to perform any’ duty imposed upon him as trustee, nor by any negligence or default on his part. If his position be correct, the loss of the securities does not rest upon him, and he is not under any obligation to account for them to the cestuis que trustent.

The court below refused to surcharge the accountant for the devastavit created by the loss of the securities awarded to the trustees by the orphans’ court. It was held that the conduct of the accountant did not disclose any negligence or default on his part in the management of the trust or in protecting the trust funds. The court held that the accountant’s conduct in the management of the trust funds was that of a reasonably prudent man and did not show any lack of good faith or reasonable diligence in the execution of the trust.

We cannot agree with the conclusion reached by the learned court below. We think that the facts disclosed by the evidence before the auditing judge, and not controverted by the accountant himself, clearly show negligence and a lack of reasonable diligence on his part with regard to the securities of the trust estate which were converted to the use of the cotrustee. The simple question presented for solution, and the answer to which will determine the liability of the accountant, is whether the securities held by the trustees jointly were lost to the estate by reason of the failure of the accountant to exercise reasonable care to protect them. What were the duties of the accountant under the circumstances ? The trust funds were awarded to and accepted by the three trustees jointly. After the discharge* of one of the trustees, the trust funds were in the possession of the two remaining trustees to be jointly administered by them. The duty resting upon each trustee was that of good faith and the exercise of such care as a reasonably prudent man might be expected to exercise in the protection and management of his own property. There was a duty resting on each trustee to exercise prudence and care to insure the safety of the trust funds. In the absence of inculpatory circumstances, he was not required to regard his colleague other than honest, nor to believe that he would not honestly and properly administer the trust. At the same time, the funds being in the joint possession of the two trustees, the law required each to exercise general superintendence over them and to observe reasonable and proper precaution in protecting them against loss or embezzlement by the other trustee. Neither trustee could shut his eyes and fold his arms and permit his cotrustee to use the funds at his own pleasure and for his own purpose. If either trustee had any reason to believe that his cotrustee was not acting in good faith or might convert the trust funds to his own use, it was incumbent upon him to take the necessary steps to prevent such misapplication of the funds. This was unquestionably his duty, and the failure to observe it will impose liability for any loss caused thereby.

On July 8, 1896, the accountant discovered that all of the trust securities in the box in the Western National Bank to which he and his cotrustee had access had been removed. This was done without his knowledge or consent, and, of course, without his authority. The two brothers, the trustees, had agreed that the box should only be opened in the presence of both. This was a proper precaution on the part of each of the trustees, and, of course, the agreement should have been observed. The securities, representing the whole trust estate, were in that box. Their removal, without his knowledge or consent, very naturally aroused the suspicions of the accountant. As his cotrustee was the only other person who had access to the box, the accountant knew that he had withdrawn the securities from the box. He demanded of his brother their immediate return to the box, and the demand was complied with on the following day. No explanation why they were withdrawn was demanded or given. Concede, as contended by the appellee, that they were simply taken from the box of the trust estate by the defaulting trustee and placed in the latter’s own box in the Philadelphia Trust Company, yet that was an improper act on the part of the defaulting trustee, and sufficient to require the accountant to take the necessary precautions to prevent a repetition of the act and a misapplication of the trust funds by his brother. The agreement between the trustees required the box to be opened only in the presence of both. This agreement had been violated by Robert, and he had taken the trust funds and placed them in his own box in another institution to which alone he had access. There is no evidence in explanation of this conduct. "When the accountant demanded the return of the securities Robert offered no explanation, and the accountant demanded none, why they were removed from the joint possession of the trustees to the possession of the one who had abstracted them. This is a singular and suggestive incident. They could not have been removed for the purposes of the trust, as its administration devolved upon both trustees. It was not made to appear before the auditing judge that there was any necessity for the removal of the funds in the administration of the trust. The securities were just as safe in the box in the Western National Bank as they were in the box in the Philadelphia Trust Company to which they were removed, and to which alone Robert had access. If it was necessary to sell or dispose of them, the duty rested upon both of the trustees to act in the matter, and, therefore, they should have remained in the common box. The securities were removed without the knowledge of the accountant, and if the purpose of Robert in removing them was a proper one, and in the interest of the trust estate, he should, and'naturally would, have stated the purpose to the accountant when their return was demanded. This was not done, and we can only surmise Robert’s purpose in thus violating his agreement and abstracting the securities from the common box and placing them in á trust company beyond the reach of his cotrustee. That it was for an improper purpose, and sufficient to excite the grave suspicions of his cotrustee, we have no doubt, in view of the admitted fact that the accountant knew at that time that Robert’s financial condition was bad. No man of ordinary prudence or business sagacity would, under such circumstances, have permitted his own funds to have remained, as it were, at the mercy of another whose conduct, unexplained, showed an intention, as well as an attempt, to appropriate the funds to his own use.

We are not favorably impressed with the argument of the learned counsel for the appellee in which he attempts to minimize Robert’s conduct in abstracting the securities from the common box of the trustees. It was an act that would naturally suggest to a cotrustee or a co-owner an intention on the part of Robert to deal with the funds as his own, and to apply them to his own purposes. It was enough to require the accountant to take the necessary steps to deprive Robert of an opportunity of misapplying the trust funds, and there has been no reasonable excuse for the accountant not taking such precautions. It would indeed be a very dangerous precedent t¿> hold, as suggested in argument, that the accountant was justified in not taking steps to prevent the defaulting trustee from converting the funds to his own use by the fact that Robert was “ prominent in society and in politics.” There would indeed be little protection to trust funds throughout this country if such an excuse could avail to protect a trustee from the defaults or crimes of his colleague. Common knowledge derived from everyday experience tells us that such reason is frequently assigned as the cause for the default of personal representatives and trustees. At all events, it is no sufficient excuse, or one which will relieve a trustee when he has knowledge that the defaulting trustee is in financial straits, and has been guilty of an act which discloses an intention to convert the trust funds to his own use. Such act is an admonition which a cotrustee cannot ignore, and which, if he does disregard, subjects him to liability for the loss that follows. If Carlton Adams had not discovered in July, 1896, the removal of the securities from the common box and demanded their return, there might have followed shortly thereafter a devastavit of the estate. Robert’s conduct on that occasion was, in the light of the circumstances, highly censurable, and could not have been in the line of his duty as a trustee. It is the first step a trustee would take if he intended to defraud the trust estate and apply the funds to his own use. After Robert had removed the securities to his own private box in the Philadelphia Trust Company he had absolute and sole control over them, and could have disposed of them and placed the proceeds in his pocket. This condition of affairs, in view of Robert’s financial condition known to the accountant, was sufficient to require the latter to put the trust funds where Robert could not again abstract them and divert them from the purposes of the trust. This could readily have been done by an arrangement with the bank that both executors should be present when the box was opened. Such an agreement, as we have seen, was made between the trustees when they received the trust funds, but the bank was not a party to it, and had no right to enforce it. This simple and obvious precaution should have been taken by the accountant after he was warned of the danger of a misapplication of the funds by Robert’s conduct in July, 1896. If this had been done, it is manifest that Robert could not have converted the securities to his own use without the knowledge of the accountant. It was the failure of the accountant to exercise this reasonable precaution and thus protect the funds that gave Eobert the opportunity to commit the devastavit and to deprive the cestuis que trustent of their property.

It is contended, however, that the accountant should not be surcharged with the default because he was a helpless invalid for more than two years before it occurred, and while he was unable to protect himself or the trust estate. This position is untenable and cannot be sustained. The dereliction of duty on the part of the accountant did not arise and was not confined to the time during which he was an invalid. He committed a breach of duty, imposed upon him by the acceptance of the trust, immediately after he discovered the conduct of Eobert in July, 1896, by not then taking the necessary steps to prevent a recurrence of Eobert’s misconduct and to protect the trust funds. This breach of duty was a continuing one and began in July, 1896. The accountant, although warned not only of a possibility, but of a probability, that Eobert might misapply the trust funds, took no effective measures whatever to prevent such conduct. The door was left wide ajar, and at any time -within the ten years Eobert could have entered and despoiled the trust estate. That he did not do so earlier, may be attributed to the fact that his necessities did not require it. It was not because the accountant had taken any steps to prevent it. If, after the discovery of Eobert’s misconduct in 1896, the accountant had notified the bank to require the presence of both trustees when the box was opened, there could not have been, as has been suggested, a conversion of the securities by Eobert without the accountant’s consent. This would have been equally true during the accountant’s illness. The latter could, in case of his inability to be present, have acted by an agent; or he could have resigned, and thereby cast upon the cestuis.que trustent the responsibility of protecting themselves. There is no reason given, nor, so far as the record discloses, can any reason be given, why the accountant did not appoint an agent to act in the matter when his enfeebled condition prevented his presence when the box was opened. Instead of taking this precaution to protect the trust estate, or resigning and thus admonishing the cestuis que trustent that they must protect their own interests, he continued to invite the confidence of the beneficiaries of the trust by remaining a trustee, thereby affording Robert a still greater opportunity to plunder the estate.

It is contended that the accountant bestowed the same degree of care upon his own interest in the trust estate and upon his own private securities as he did upon the interest of the other cestuis que trustent. But that is no excuse for hjs dereliction of duty. It is not the standard of care required of a trustee. Ilis conduct is gauged by that of a reasonably prudent man in the management of his own property. That Carlton Adams saw proper to rely upon the honesty of his brother in the management of the trust estate, beyond what a prudent and careful man would have done, cannot relieve him from the devastavit committed by the one who abused his imprudently bestowed confidence. It may well be that the kindness to, and confidence in, a brother account for the loss which gives rise to this litigation, but it cannot be held to be either an equitable or legal reason why a cotrustee should not account for funds misappropriated by reason of that kindness and confidence. Carlton Adams had a right to trust his' brother to any extent with his own estate, but that rule does not prevail as to funds held by Carlton Adams as a trustee. The over confidence naturally reposed in a brother is not a sufficient justification for failure to perform a duty in the administration of a trust estate.

It is suggested that the accountant is relieved from surcharge by reason of the fact that he communicated to .the cestuis que trustent the conduct of Robert in removing the securities from the common box of the estate. This fact, however, did not relieve the accountant from performing the duties imposed upon him by law as a trustee. He occupied a position of confidence, and a trust was reposed in him that he would protect the estate or exercise reasonable diligence and good faith in securing the trust estate to those entitled to it. The cestuis que trustent had a right to rely upon the performance of this duty, and when they were informed of Robert’s misconduct in abstracting the securities from the common box, they were justified in believing that the accountant would prevent a repetition of such conduct, and take the necessary steps to guard the estate from any further attempt to despoil it. In fact, they not only had the right to assume that the accountant would take such action to protect the estate, but he gave them the assurance, if the only testimony on the question is believed, that they “ need have no further anxiety about it, that he had arranged at the bank that both executors must be present when the box was opened.” It was not incumbent upon the cestuis que trustent under these circumstances to employ counsel to compel the accountant to perform a duty which he himself recognized as a duty. As the testimony shows, the accountant knew that he could effectively protect the trust funds from misapplication by Robert by an arrangement with the bank, and the cestuis que trustent had a right to rely upon his doing so.

¥e are unanimously of the opinion that the loss to the trust estate sustained by the devastavit of Robert Adams, Jr., trustee, was attributable to the negligence of the accountant, his cotrustee, and that, therefore, the latter should be surcharged with the amount of the devastavit. ■

The decree of the court below is reversed, and the record is remitted with directions to restate the account in accordance with this opinion.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Pennsylvania Railroad Company, Appellant, v. Pittsburg. Allegheny Valley Railway Company, Appellant, v. Pittsburg.

      Taxation — Railroads—Real estate — Right of way — City taxes — Statutes — Repeal—Acts of January 4, 1859, sec. 3, P. L. 828, and'March 7, 1901, P. L. 20.
    Section 3 of the special Act of January 4, 1859, P. L. 828, relating to taxation of railroad property in the city of Pittsburg, is not repealed by the Act of March 7, 1901, P. L. 20, and is still in force; but in the light of prior judicial decisions, and the contemporaneous construction' of the act, as shown by the fact that for nearly half a century after its passage no attempt was made by the city of Pittsburg to assess for taxation the rights of way of a railroad, it must be deemed that it was not the intention of the legislature to include within the meaning of the words “real estate” as used in the statute the ground comprised within the rights of way.

      The legal conception of a railroad as a public highway has never been changed. As such it has a franchise not included under general words, authorizing taxation of property, real or personal.
    Argued Nov. 13, 1907.
    Appeal, Nos. 216 and 217, Oct. T., 1907, by plaintiffs, from decrees of C. P. No. 1, Allegheny Co., June T., 1907, Nos. 201 and 202,, dismissing bills in equity in cases of Pennsylvania Railroad Company v. City of Pittsburg and John F. Steel, Treasurer of said city, and Allegheny Yalley Railway Company v. City of Pittsburg and John F. Steel, Treasurer of said city.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bills in equity for an injunction to restrain the city of Pitts-burg from collecting taxes on real estate included within the rights of ways of railroad companies.
    The opinion of the Supreme Court states the case.
    The court entered decrees dismissing the bills.

      Error assigned was decrees dismissing the bills.

      M. W. Acheson, Jr., of Patterson, Sterrett & Aoheson, for appellants.
    The railroad rights of way are not subjected to taxation by the act of 1850 : Western New York, etc., R. R. Co. v. Venango County, 183 Pa. 618 ; Pittsburg Railway Co. v. Pittsburg, 211 Pa. 479 ; State v. District Court of Ramsey County, 31 Minn. 354; Georgia v. Atlantic, etc., R. R. Co., 3 Woods, 434; Worcester v. R. R. Co., 45 Mass. 564; Fox’s App., 112 Pa. 337.
    The meaning publicly given by contemporary or long professional usage, is presumed to be the true one, even when the language has etymologically or popularly a different meaning : Com. v. Paine, 207 Pa. 45 ; Price v. Lancaster County, 189 Pa. 95 ; Leh’s Election, 6 Pa. Dist. Rep. 152; Stuart v. Laird, 5 U. S. 299 ; Packard v. Richardson, 17 Mass. 122.
    The Act for the government of cities of the second class, approved March 7, 1901, P. L. 20, repealed section 3 of the act of 1859 : Com. v. Kelly, 5 Kulp, 533 ; Lehigh Iron Co. v. Lower Macungie Twp., 81 Pa. 482; Harrisburg v. Harrisburg Gas Co., 31 Pa. Superior Ct. 530 ; Com. v. Brown, 210 Pa. 29.

      May 4, 1908 :

      A. M. Thompson, with him W. B. Rodgers and Chas. K. Robinson, for appellees.
    The third section of the act of 1859, entitled “an act to enable the city of Pittsburg to raise additional revenue,” is in force: Com. v. Brown, 210 Pa. 29; Brown v. County Commissioners, 21 Pa. 37; Murdock’s Petition, 149 Pa. 341; Evans v. Phillipi, 117 Pa. 226 ; Seifried v. Com., 101 Pa. 200 ; Malloy v. Com., 115 Pa. 25 ; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231; Shroder v. Lancaster, 170 Pa. 136 ; Com. v. Moir, 199 Pa. 534.
    The act of 1901 is not, nor was it intended to be, a complete and exclusive system for the government of cities of the second class, and it does not repeal the local act of 1859: Com. v. Moir, 199 Pa. 534; Com. v. Macferron, 152 Pa. 244 ; McHenry’s Petition, 6 Pa. Superior Ct. 464; White v. Meadville, 177 Pa. 643 ; Smith v. People, 47 N. Y. 330 ; Phila. v. Sciple, 31 Pa. Superior Ct. 64; Lewis Sutherland Statutory Construction, sec. 443.
    The case of Harrisburg v. Gas Company, 31 Pa. Superior Ct. 530, does not rule this case.
    The act of 1859 empowers the city of Pittsburg to tax such real estate of railroad companies as is covered by their main tracks: Penna. R. R. Co. v. Pittsburg, 104 Pa. 522 ; Homer v. Com., 106 Pa. 221; McHenry’s Petition, 6 Pa. Superior Ct. 464.
    Rights of way of a railroad are no longer recognized in a strict sense as public highways : Baldwin on American Railroad Law, p. 113 ; Hyde v. Missouri Pacific Railway Company, 110 Mo. 272 (19 S. W. Repr. 483); Central Military Tract R. R. Co. v. Rockafellow, 17 Ill. 541.
   Opinion by

Mr. Justice Potter,

The plaintiffs (appellants) are owners of certain strips of land in the city of Pittsburg, used now and for many years heretofore for their main railroad and tracks, and commonly known as rights of way. The city of Pittsburg, in 1907, assessed and levied a tax upon the said strips, claiming authority to do so under the special Act of January 4, 1859, P. L. 828, which provides that “ all real estate situated in said city owned or possessed by any railroad company shall be, and is hereby, made subject to taxation for city purposes the same as other real estate in said city.”

The first question that is raised is whether these rights of way are real estate taxable under the act of 1859. That they are in fact real estate under the general legal distinctions of property is not disputed, but it is not clear that they are such real estate as comes within the intent of the authority to tax, given by that act. The original conception of a railroad was that of an improved highway, the right to construct which was a franchise to the company, involving the obligation to furnish motive power for persons and property to all who sought it, even in their own vehicles. Of course, experience soon demonstrated that as vehicles could not pass each other as on ordinary roads, they as well as the motive power must be under the control of one authority, but the conception of the railroad as a public highway has never been changed. As such, it is a franchise not included under general words authorizing taxation of property, real or personal.

No case has been cited which sustains the view adopted by the learned court below. In Penna. Railroad Company v. Pittsburg, 104 Pa. 522, where the act of 1859 was under consideration, it was held that the real estate of the railroad used l'or offices, passenger and freight stations, etc., although necessary conveniences for the enjoyment of the franchise, were taxable under the act. But the distinction is plain. Depots, stations, offices, etc., are necessary, but depots, etc., in any particular place are matters of convenience only, while the right of way is essential to the life of the franchise itself, and having once been located is no longer open to the general authority to change.

Not only has no case been found to support the view of the court below that the rights of way should be included with other real estate subject to taxation, but the contemporary construction of the statute has been uniformly the other way. The city of Pittsburg itself made no attempt to assert such a construction for nearly half a century after the passage of the act. The legislature is presumed to use language in its generally accepted meaning at the time. Contemporánea expositio fortissima est in lege, and it is perfectly clear that in 1859 the term real estate, as a subject of taxation, was not understood to include the essential instrumentalities of a franchise such as the right of way of a railroad.

The second and larger question in the case is whether section 3 of the act of 1859 was repealed by the Act of March 7, 1901, P. L. 20. The case of Harrisburg v. Gas Co., 219 Pa. 76, is cited as authority for the view that it has been so repealed. There the act of 1889 was held to furnish a complete system for the government of cities of the third class, which was inconsistent with the provisions of the earlier acts, authorizing the city to levy taxes on all real estate of corporations within its limits. If we compare the act of 1889, which was involved in the Harrisburg case, with the provisions of the act of 1901, which is here involved, it will appear that the property subject to tax is identical; so are the provisions for assessment and collection of taxes; and that both acts provide for the election of assessors, — the Act of 1901, art. 6, P. L. 26, by reference to the earlier Act of July 9, 1897, P. L. 219, and also by art. 12, sec. 1, par. 7, P. L. 33. But in this respect the act of 1901 does not contain a complete system in itself, and differs from the Act of 1889, art. 15, sec. 1, P. L. 317, which contains such provisions without reference to prior legislation.

Then again, the Act of 1889, art. 15, secs. 8, 9 and 10, P. L. 319, designates the officers to whom taxes should be paid, the manner of enforcing payment, and penalties for failure to pay. The Act of 1901, art. 19, sec. 3, par. 2, P. L. 40, authorizes cities of the second class to provide for the assessment and collection of taxes, but does not designate any officer to collect, nor manner of enforcing payment, nor penalties ; but art. 7, P. L. 26, provides that “ the city treasurer shall receive the proceeds of all public loans, and shall demand and receive from the proper officers, all moneys payable to the city from whatever source, and pay all warrants duly issued and countersigned ; the receipt and collection of funds derived from assessments, taxes, water rents, licenses, permits and rents, from markets, landings, wharves and other public property, excepting delinquent taxes and water rents, shall be attached and subordinate to this department and subject to its supervision, control and direction.” It will be seen that the act of 1901 is far short of the act of 1889, in the establishment of a complete system for the assessment and collection of taxes.

Then as to delinquent taxes, the act of 1889 provides a complete system: Art. 15, sec. 11 et seq., P. L. 320. The act of 1901 makes no provision as to collection of delinquent taxes except by reference to prior acts, as follows: Art. 5, sec. 1, P. L. 20 : “ The collector of delinquent taxes shall be the head of the department of delinquent taxes, and all laws and ordinances in force prior to the passage of this act, relative to said office and collection of delinquent taxes, shall be and remain in full force.”

The act of 1889 contains a complete system as to registry of “ the ownership of all real estate liable to municipal taxation or assessment: ” Article 16, P. L. 328. The act of 1901 is silent on this subject, and the local Act of February 21,1871, P. L. 126, is still in force: Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231.

Numerous provisions on other subjects in the act of 1889, making it a complete system as to cities of the third class are, in the act of 1901, either omitted altogether or supplied by reference to existing laws.

As set forth by counsel for appellee, the act of 1889 contains four articles providing for incorporation of cities, creation into wards, annexation of territory and general provisions. The act of 1901 is silent on these subjects. Corporate powers are the same in both. The legislative department is complete in the act of 1889. In that of 1901 the election of councils and ratio of representation are not fixed, but depend on other acts, and there is no reference to the passage of legislative acts. The powers of the executive are much fuller in the act of 1889 than in that of 1901, and there is in the act of March 7, 1901, no provision for veto power, nor anything showing that any ordinances were to be submitted to the recorder, except appropriation ordinances, and even as to them the proceedings of the recorder’s veto are such as are prescribed by law for the passage of bills over the city recorder’s veto, and there is no provision in the act for such passage. The absolute lack of legislation on the most vital matter of city government, namely, the methods of passing ordinances and resolutions, is shown by the subsequent amendment of June 20, and its very detailed provisions in reference thereto. (See act of 1901, page 591.) The act of 1889 provides for the treasurer and controller, and the act of 1901 does the same, but not so fully. The act of 1889 contains an article on board of health. The act of 1901 is silent as to the scope and powers of the board. The act of 1889 contains an article on water and lighting departments, sewerage, exercise of eminent domain, and on these subjects the act of 1901 is silent, except the mere statement in Art. IV, that waterworks, gas and electric plants are under the department of public works. The act of 1889 contains (art. XV) over ten pages on taxation and municipal claims. The act of 1901 contains an article (VI) of less than a page on assessors, and preserves the act of 1897, and does not contain a word on the other subjects treated in art. XV of the act of 1889. And so, without going further into the tedious details of comparison, it would seem that these instances amount to a demonstration that the act of 1901 is not a complete system ; and, therefore, the reasoning in Harrisburg v. Gas Co., 219 Pa. 76, based upon the idea that the act of 1889 was a complete system, cannot apply to nor control this case.

But in any event the act of 1901 includes within its system the act of 1859 and saves it in terms. This will appear if we turn to art. VI of the Act of 1901, P. L. 26, under “ Department of Assessors,” creating a board of revision of taxes, which contains the following proviso: “Nothing herein contained shall be construed to repeal the act of July 9, 1897, providing for the classification of real estate and other property for the purposes of taxation, and for the election of assessors, and prescribing the duties thereof, in cities of the second class, except so far as the same is inconsistent herewith.” Now sec. 2 of the Act of July 9, 1897, P. L. 220, provides as follows as to the board of revision of taxes : “ That the present board of assessors in any such city, or their successors when elected, shall make an assessment of all the subjects of taxation now by law, or which may hereafter be made subject to taxation for city purposes, and they shall take as the basis of such assessment, the last preceding assessment made by the board of assessors for such city, and shall have power to revise, equalize or alter such assessment by increasing or reducing the valuations, and to add to such lists of assessments any subjects of taxatioh as aforesaid omitted therefrom, and fix the taxable valuation thereof.” This is the statute and section under which the assessors proceeded in the present case. They had authority to add to the list of subjects of taxation any real estate of the railroad omitted from the prior lists, subject “ now by law ” to taxation under the act of 1859. Bat this, as we have pointed out, did not, in our judgment, include the real estate comprised in the right of way.

Section 3 of the act of 1897 provides : “ When the board of assessors shall have altered and amended the lists of. all taxable property so as to arrive at its true cash value, they shall then ascertain the aggregate amount of the value of the entire taxable property of said city, which valuation shall remain the lawful valuation for purposes of city taxation, until altered as herein provided.”

Article 19 of the Act of 1901 provides, P. L. 39 : “ The corporate powers, and the number, character, powers and duties of the officers of cities of the second class, now in existence by virtue of the laws of this Commonwealth, shall be and. remain-as now provided by law, except where otherwise provided by this act.” -

It should also be noted, that the power to levy and collect taxes on all property “taxable according to the.laws of-thp State of Pennsylvania for county purposes,” as provided- by section 3, P. L. 10, is in addition to those which are “ now prpvided by law,” and not in substitution thereof.

The supplemental Act of June 20, 1901, P. L. 586, shows that the purpose of the legislature was not to repeal any prior acts except the act of 1887, relating to cities of the second class, secs. 1 and 2 of this act being saved also.

We are of the opinion that section 3 of the Act of January 1, 1859, P. L. 828, is not repealed and is in force, but that in the light of prior judicial decisions, and the contemporaneous construction of the act, as shown by the fact that for nearly half a century after its passage, no attempt was made by the city of Pittsburg to assess for taxation- the fights of way, it was not the intention of the legislature to' include within the meaning of the words “ real estate ” as used in the statute,'the ground comprised within the rights of way. If it be the policy of the law to make such property subject to local taxation, the legislature should make it clearly apparent.

Decrees reversed, bills directed to be reinstated, and injunction awarded against the collection of taxes upon the rights of way. Costs to be paid by appellees. ‘ '


author: Mr. Chief Justice Mitchell,

text:
    Paxson’s Estate.

      Wills — Gift to charity — Attesting witness — Subscribing witness — Probate —Act of April 26,1855, P. L. 328.
    An attesting witness must be a subscribing witness within the meaning of the Act of April 26,1855, P. L. 328, which enacts that “No estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor.”
    The attesting witnesses to a will devising to a charity must be disinterested at the time of their attestation.
    Argued Jan. 15, 1908.
    Appeal, No. 224, Jan. T., 1907, by Commonwealth ex rel. The National Farm School and L. Webster Fox, M. D., William S. Erdman, M. D., and T. Howard Atkinson, trustees of the “ Buckingham Agricultural Institute ” ■or Home for Boys, from decree of O. C., Phila. Co., April T., 1906, No. 11, dismissing exceptions to adjudication in Estate of Edward M. Paxson, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Penrose, J., filed the adjudication which was in part as follows :
    The decedent, Hon. Edward M. Paxson, died without issue, October 12, 1905. By his will, admitted to probate November 8, 1905, upon proof by two witnesses of handwriting of signature, he gave $100,000 and certain real estate to his wife, Mary M. B. Paxson, absolutely, and certain other personal property there set forth — the residue of his estate, after various gifts more fully set forth in the petition for distribution hereto annexed, being given to her for life.
    The will contains charitable gifts as follows : “ All my remaining farms in Bucks county, including the Walker farm adjoining ‘Nonesuch’ and subject as to Bycot Farm to my wife’s life estate, I give to my said wife and to my friends, L. Webster Fox, M. D., William S. Erdman, Ai. D., Harmon Terkes and T. Howard Atkinson and their heirs, in trust, nevertheless, to establish and found at ‘ Nonesuch5 the farm I recently purchased, .... a Home for poor boys, where they shall be properly educated as farmers, gardeners, etc. I leave the Trustees to fix the age at which they may be received and merely suggest from six to sixteen, and to remain until they arrive at twenty-one years, and that after a tidal term, they be regularly indentured as apprentices, and in all cases the control of parents over them to be absolutely released. They should be well instructed in the dairy and all branches of farming, as well as in truck gardening ; and when their term has expired, I want each boy who has a satisfactory record, to have a good outfit of clothing and one hundred dollars in gold, to commence the world with; also a certificate that he has graduated with credit. I am induced to found this institution from the fact that so'many of our young men are abandoning the farming business, which I consider a great mistake. I leave the Trustees to name the institution, and merely suggest that of ‘ Buckingham Agricultural Institute.’ I presume the Trustees will procure a charter; the vacancies in the Board to be filled from time to time by the appropriate court of Bucks county. I do not desire to encumber this will with minute directions, nor do I wish to tie the hands of the Trustees. I may leave some thought as to the management for the consideration of the Trustees, which, however, will be no part of my will, and not binding upon the Trustees. And that the institution may not lack support, I.give the said Trustees the sum of one hundred thousand dollars, which sum shall be largely increased on the death of my wife ; in trust for the purposes above mentioned.
    “ . . . . And from and after her death, I give and devise all my real estate in the borough of Newton, Bucks county, to the ‘Friends’ Boarding Home’ of Bucks Quarterly Meeting, its successors and assigns, to be used and enjoyed, however, only so long as the said ‘ Home ’ shall be kept for such purposes as at the present. In case it shall not be kept as such home for the period of one year, then the subject of this devise as well as the Home itself, shall revert to my residuary estate.
    “ And from and after the death of m v said wife, I give, bequeath and devise all my estate remaining at that time to the Trustees of the Home for boys, hereinbefore named, or their successors, in trust for carrying on the aforesaid provisions for said Home. ... I suppose my executors will be obliged to pay the collateral inheritance tax on the gift to the Home for poor boys, but I think they should not tax such a charity, and I therefore request my executors and trustees of the Home to apply to the legislature for an appropriation for an equal amount.”
    ' The will was signed by the testator January 23, 1905, nearly nine months before his death. It was written by Horace Yardley, secretary of the Jayne estate, from a draft which appears to have been made by the testator himself. It is free from the slightest ambiguity, and the charity which it seeks to create and provide for is of the most deserving and beneficent character, but while all its other provisions are effective, the charitable gifts must fail for the reason the testator has failed to comply with the requirements of the act of April 26, 1855, regulating testamentary dispositions of real and personal estate for such purposes.
    That act declares, in language which is explicit and peremptory, that “ No estate shall be bequeathed, devised or conveyed to any body'politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, next of kin or heirs, according to law.”
    The will itself shows that it was the intention of the testator that it should be attested by at least two witnesses. It has, at the end, the usual attestation clause, “ Sealed and signed in the presence of us,” but the intended witnesses are wanting.
    The testimony shows that the will, having been engrossed by Mr. Yardley, was brought by him to the Jayne building, on the north side of Chestnut street, in the morning of January 23, 1905, and taken to the rooms of the Jayne estate, of which Judge Paxson was one of the trustees, in the second story. Patrick Keefe, the janitor and messenger of the estate, was there at the time or came in soon afterwards, and was told by Mr. Yardley that the paper which he then had was a will which Judge Paxson intended to execute. It does not appear, however, that Patrick examined the paper or that he had any knowledge of its character or its contents than what he was thus told by Mr. Yardley. Judge Paxson came in at a later hour. He seated himself at the table in the main room of the Jayne office, and while Mr. Yardley, who stood by his side, read the original draft, he had before him the engrossed copy, and saw that it was correct. He then signed the latter, not only at the end, but at the foot of each page, Mr. Yardley turning over the pages for him as he did so.
    Patrick Keefe, while this was going on, was in the adjoining room, at a distance of perhaps fifty feet, reading a newspaper. The rooms were communicating, with a wide, high opening between, so that from where he.sat, the table, the testator and Mr. Yardley were in full view. He might, therefore, have seen the act of signing, but he was unable to say that he did ; and even if lie had, he could not, except from what he had been told by Mr. Yardley, in the absence of the testator, have known that what was signed was- a will. See upon this subject, Hock v. Hock, 6 S. & R. 47. It is true that Patrick testified that he saw a paper on the table in Mr. Yardley’s room at the time, which, when the will was brought before the auditing judge from the office of the register of wills, he identified as the same paper, though he only saw the outside of it, declaring that its appearance when on that table was precisely that of the paper from the register. The absolute unreliability of such evidence is shown by the fact that the latter paper had on it the buff colored back put on in the register’s office, which it certainly had not when it was signed by the testator.
    After the will was signed, Mr. Yardley asked the testator who were to be the witnesses, to which the reply was that he (Yardley) and Patrick would do; but when his attention was called to the fact that the will gave a small legacy to each, and that they might, perhaps, on that account, be disqualified, he agreed that this might be so, and said that “ Mr. Oellers and Mr. Harrington are coming to see me on business, and when they come I will ask them to witness it.” This, however, was never done.

      Some months afterwards, in conversation with various friends, who were examined before the auditing judge as witnesses, he spoke of having executed a will and of the charities which it provided for, referring especially to the home for poor boys and the plan for educating young farmers, in which lie expressed great interest; but the will by which this was done was not exhibited to the witnesses, nor was there anything by which they could identify it.
    The ordinary method by which a will is attested is by having it witnessed by persons who, at the request of the testator, sign their names for that purpose; but subscription is not, perhaps, the only method of attestation, though, obviously, mere proof of the genuineness of the signature of a testator is not “attestation.” The act of 1833 requires that a will shall be “ proved ” by two witnesses ; and any written instrument, in the absence of statutory requirements, is proved, if there uve no subscribing witnesses, by proof of the signature. When, therefore, the act of 1855 declared that in order to create a valid charity the will must be “ attested, ” something different from the “proof” which was sufficient in the case of an ordinary will' was manifestly intended. The act was a remedial one and its purpose was apparent. It was to protect testators against their own weakness and from the importunities and undue influence of designing persons, often exercised at the expense of those to whom the testator was under moral obligation to make provision for. The law, to use the language of Judge Mitchell, in Hoffner’s Estate, 161 Pa. 331, 343, “recognizes such bequests as valid, but requires them tobe made when the judgment is clear, and the obligation is not sharpened or exaggerated by the terrors of impending death.” It is to be so construed as to prevent the mischief which it was designed to correct, and this would be done very ineffectually, if at all, if “ attestation” is to be regarded simply as the equivalent or synonym of “proof.” Nothing would be easier than to antedate the will and dispense with witnesses, and then, the presumption being that the date was the actual one, the statutory provision that it must be at least one calendar month before the death of the testator would, in many, if not the majority, of cases, be a nullity.. To attest a will the witnesses must be able to identify the instrument as the act of the testator, not simply from the appearance and nature of the paper itself, but from the declaration of the testator and its identification by him at the time. Whether he must not also request the persons to bear witness that the instrument is his will need not be considered.
    Undoubtedly many instances have occurred and will occur, of which the present is a striking example, where most deserving charities have been defeated by the failure of testators to comply with the requirements of the act; but the responsibility is upon the testator who does this and not upon the court whose duty it is to decide an abstract question. The act is plain and its terms peremptory, and judges cannot disregard it or allow themselves to be influenced by the hardship of any particular case. Cases of hardship frequently occur as the result of statutory enactments, as, for example, the act requiring a promise to pay the debt of another to be in writing (see Schafer v. Bank, 59 Pa. 144), or the act requiring aivill to be signed “at the end thereof,” which, as held in Wine-land’s Appeal, 118 Pa. 37, in an opinion by Judge Paxson himself, must be literally complied with, even if the words following the signature do not affect or change the dispositions made by the instrument. In the present case the testator was perfectly familiar with the law. He knew that the will so far as concerned the charitable gifts was incomplete until duly attested ; and he declared that he would, at a later time, see that this was done; but, whether from forgetfulness, inattention, or because of some contemplated change, it never was done.
    The act has been on the statute book for more than fifty years and very many cases have occurred, frequently in our own court, in which gifts of this character have been declared inoperative because the will was not attested by two witnesses, though it had been admitted to probate upon proof of the handwriting of the testator. The correctness of this, so far as appears, has never hitherto been questioned. So long ago as 1862 a very distinguished judge (Thompson, P. J., of the court of common pleas of Philadelphia) thus decided in Hupfeld’s Estate, 5 Phila. 219, and a no less distinguished judge, of the orphans’ court of Allegheny county, decided (in 1891) in the same way in Gray’s Estate, 147 Pa. 67, 69, the decree being affirmed by the' Supreme Court. :The contemporaneous and continued construction of a statute, where its meaning is in doubt, will not be departed from. Contemporánea expositio est optima et fortissima in lege and Optimus legis interpres consuetudo. But the meaning of the act of 1855 is not, in the opinion of the auditing judge ; doubtful. No other argument is required than the act itself,-its words are free from ambiguity and • interpretation is unnecessary. Quoties in verbis nulla ambiguitas est -ibi nulla expositio contra verba fienda est.
    ■The auditing judge is compelled, therefore, notwithstanding the exceptionally able argument of counsel representing the charity and the commonwealth, to decide, though with great regret, that the charitable gifts have failed by reason of the omission-of the testator to execute the will in accordance with the requirements of the act of 1855, regulating such dispositions ; and as the ultimate gift was residuary, the result is to this extent, an intestacy, one-half of the personal estate passing to the widow of the testator and the other half to his next of kin,- his nephews and niece and grandnephews and nieces whose names are set forth in the petition hereto annexed, per stirpes.
    • Exceptions- to the adjudication were dismissed by the court 'in the following opinion:
    ■ Ashman, IP. J.: We adopt the adjudication of Judge Pen-rose as the opinion of the court. It was attempted to prove the-gifts to charity by two witnesses, one of whom, seated at a distance of fifty feet or more from the testator, could identify the paper upon which the testator wrote as the will, only because, the draughtsman, the other witness, had told him that it was the testator’s will, evidence which was purely hearsay. His testimony was defective in this, that it required to be supplemented by that of another; whereas, under repeated decision s,--each witness to a charitable gift must, from, his evidence, based on independent knowledge and information as an eyewitness, meet all the requirements of the statute: Hock v. ITock; 6:S. & R. 47; Mitchell v. Low, 213 Pa. 526. To make good his deficiencies- by cumulative testimony furnished by another eyewitness, or-by after-declarations of the testator to '■others that he had executed a will bequeathing to charities which he described in terms corresponding with those named in his will, is not permissible; a chain is no stronger than its weakest link, and this is true in law as in physics: Derr v. Greenawalt, 76 Pa. 239.
    Neither witness had signed; and if either had died before the hearing, the gifts must have fallen. The act of 1855, in our opinion, carefully guards against such a mischance.' It provides that no estate shall be conveyed or willed to a charity, “ except the same be done by deed or will, attested by two credible and at the time disinterested witnesses, at least one calendar month before the decease of the testator or alienor.” The orderly arrangement of these provisions seems to indicate that the attestation should be made at least one calendar month before the death : Gray’s Estate, 117 Pa. 67. If the witness attest the will by signing, and we know no case where an instrument has been held to be attested except by the.signatures of the witnesses-, and one or both should die, proof of their signature will carry with it the legal presumption that the will was executed in conformity with all legal requirements. It is incredible- that the legislature could have meant to subject a will giving, as in this instance, a million to charities, to the hazard of the continuance in life of a single witness. ■ The testator, who had but recently resigned from the highest judicial ■office of the commonwealth,, evidently entertained this view. He acquiesced in the suggestion by the draughtsman, whom he requested to sign, that he and Keefe, being legatees, were perhaps interested witnesses within the meaning of the act, and were therefore ineligible; and he declared that he would have two other witnesses sign the instrument. He, therefore, manifestly regarded the will as at that time, incomplete. It is useless to speculate upon this after-inaction ; ne may have intended, on further reflection, to add other provisions to the instrument. But he did nothing, and his will remains as he saw fit to leave it.
    For the reasons given by .the auditing judge, we concur in his decision that the collateral inheritance tax imposed by the Mexican government on inheritances and legacies was due and payable by the estate of the testator out of the-proceeds of the mortgage held by him upon the property of the Amparo ■ Mining Company, the mortgagor.

      The claim of John R. "Williams to certain shares of stock of the Amparo Mining Company, to the rejection of which exceptions were filed, is referred back to the auditing judge, with his own consent, for further consideration.
    The remaining exceptions are dismissed.
    Penkose, J., concurring: It must always be a source of great regret that a charity which might have been productive of so much benefit to the community should fail, or that a fortune so large should go to those whom the testator, apparently, did not wish to have it; but the act of assembly which — wisely, as has heretofore been supposed — regulates the methods by which such benevolences (often the result of importunities at a time when the donor is not in a state of mind to resist them, and when perhaps his own fear or selfish desire for postmortem admiration causes him to overlook those for whom he ought to provide) are to be created, declares that “No estate .... shall .... be bequeathed, devised or conveyed to any body politic or to any person in trust for religious, charitable, literary or scientific uses except the same be done by deed or will, attested by two credible and at the time disinterested witnesses, at least one calendar month before the decease of the testator .... and all dispositions of property contrary hereto shall go to the residuary legatee or devisee, next of kin or heirs, according to law.”
    The question, therefore, unaffected by the merits of the gift or the amount given, is a very simple one: "What is the method by which, alone, under the mandates of the act, a valid charitable disposition of an estate can be made by will ? and in the consideration of this question it is manifest that the eminence of the testator or the profundity of his legal attainments can have no weight whatever, for, to use the language of Professor Gray (Rule against Perpetuities, preface page, v), “ If the answer to a problem does not square with the multiplication table one may call it wrong, although it be the work of Sir Isaac Newton.” The.act is a remedial one aimed at an obvious mischief; it has been on the statute books .for more than fifty years, during all of which time its meaning has been supposed, by bench and bar, to be clear and free from doubt; has been acted upon, under this general understanding, in innumerable instances; and so far as its plain expression called for interpretations, the rule that remedial statutes are to beso construed as to suppress the mischief and advance the remedy— “ suppressing all subtile inventions to creep out of the statute” —has never been lost sight of.
    The act, as already stated, declares that no such testamentary disposition shall be made except by “ deed or will attested by two credible and at the time disinterested witnesses, at least one calendar month before the decease of the testator.” It must not only be by a will executed at least one calendar month before such death, but that will must be not simply “ proved,” as in the case of an ordinary will, but “attested” by two witnesses. Obviously some kind of proof differing from the ordinary proof is there made requisite. "When a statute uses a different term from that used in another statute relating to the same general subject, the rule is elementary that a different meaning is intended; and the difference in the meaning of the words “proved,” as used in the act relating to ordinary wills, and “attested,” as used in the act with regard to wills creating charities, has been shown by eminent jurists, in language substantially the same in very many cases — beginning with what was said by Judge Oswald Thompson, in 1861, in ELupfeld’s Estate, 5 Phila. 219 ; Irvine’s Estate, 206 Pa. 1 — being the last utterances of the Supreme Court on the subject. See also Gray’s Estate, 147 Pa. 67, etc. There must be two witnesses, and each must “ attest ”— whatever that may be — the “ will ” which contains the charitable gift. An “attesting” witness in the sense used by the statute, can be no other than one who of his own knowledge can identify the instrument as that executed by the testator “ not less than one calendar month before ” his death. The witnesses Avho “ attest ” must be credible and “ at the time” disinterested. At.AA'hat time? At the time of attestation. And what is it that they attest ? That the will, which they must each be able to identify (see Simreli’s Estate, 154 Pa. 604), was executed at least one calendar month before the death of the testator; and here there is but one person Avho can testify as to the execution of the Avill, the other who was called for the purpose not only having no knowledge of his own that the instrument was the testator’s will, but being unable to say that he saw it. “ signed at the end thereof ” or at all.-
    • That declarations of the testator, not having the will in the presence of the. person to whom they are made, that he . has disposed of his estate in a designated way, are not the equivalent of a witness required to prove a will, was expressly decided in Derr v. Greenawalt, 76 Pa. 239, in an opinion by Judge Sharswood, citing Clark v. Morton, 5 Rawle, 235, where the same thing was decided in the case of Judge Morton’s will. Yery eminent counsel (Mr. Meredith and Mr. Williams) contended for a different ruling in Clark v. Morton, but the law •was too obviously against them, and the question cannot now be regarded as an open one. It is not affected by Scott’s Estate, 147 Pa. 89, an exceptional case, which was explained in the very recent case of Willing’s Estate, 212 Pa. 136, where the court below was reversed for following what was erroneously supposed to be the doctrine newly established by Scott’s Estate.
    In -the present case Judge Paxson had intended to comply with the act. The will which he signed was copied from a draft which he himself had made. It contained the usual attestation-clause, to be subscribed by two witnesses ; but it having been suggested to him that the two persons whom he had intended to call might not be “ disinterested ” within the meaning of the act, he concurred in the suggestion, declaring that he would have two others, whom he named, whom he expected to see later in the day ; but whether from forgetfulness on his part, or inattention, or from an unexpressed idea of subsequent changes in the will, he failed to do so.
    ■The..consequence is most unfortunate, but it is not in the power of the court to avoid this. The mandate of the act is positive, and, as said in Gorgas v. Saxman, 216 Pa. 237, -a “ruling, made to cover the exigencies of a particular case makes bad law generally.”

      Error assigned was in dismissing exceptions to adjudication.

      Abraliam Israel and Russell Duane, with them Alfred N. Keim sjid John. E: Eox, for appellants.-
    The evidence prpduced in behalf of the charity satisfies the requirément of the act of 1855 that the will shall be “ attested by twb .... witnesses: ” Irvine’s Est., 206 Pa. 1; Lewis v. Maris, 1 Dallas, 278 ; Crisp v. Walpole, 2 Hagg. Eccl. 531.
    The terms in the act of 1855 are technical terms, and, therefore, they must be taken according to the acceptation of the learned in the profession; they must not be given any restricted or popular meaning; neither should they be interpreted in any colloquial or derivative sense, such as we have shown has sometimes been given to the term “ attested ” in other jurisdictions : Price v. Maxwell, 28 Pa. 23 ; Jones v. Murphy, 8 W. & S. 275 ; Grabill v. Barr, 5 Pa. 441; Hays v. Harden, 6 Pa. 409.
    There may be perfect “ attestation ’• without “ subscription: ” Swift v. Wiley, 1 B. Mon. (Ky.) 114; Reed v. Watson, 27 Ind. 443 ; In re Downie’s Will, 42 Wis. 66.
    Of the witnesses produced at the audit in behalf of this charitable bequest, Messrs. Yardley, O’Keefe, Eox, Erdman and Anders each established by his testimony the fact that the testator executed the will, which had been probated, more than one calendar month before his decease, and' it is submitted that any two of them -were competent attesting witnesses to establish this charitable bequest within the meaning of the act of April 26, 1855 : Carson’s App., 59 Pa. 493 ; Rice’s Est., 173 Pa. 298 ; Eyster v. Young, 3 Yeates, 511; Mullen v. McKelvy, 5 Watts, 399 ; Rutherford v. Maule, 4 Hagg. Eccl. 213.
    It is entirely immaterial that the testator did not himself select or request any of the appellants’ witnesses to witness his will: Rohrer v. Stehman, 1 Watts, 442; Brett v. Brett, 3 Addam’s Eccl. 210.
    That the attestation clause was unsigned in no way affects the validity of this will or of the charitable bequest: M'ellert’s Appeal, 13 W. N. C. 222 ; Buckle v. Buckle, 3 Phillimore Eccl. 323 ; Watts v. Public Administrator, 4 Wendell (N. Y.), 168 ; Goods of Jerram, 1 Hagg. Eccl. 550; Goods of Vanhagen, 1 Hagg. Eccl. 478 ; Goods of Sparrow, 1 Hagg. Eccl. 479.

      John Cr. Johnson, for John Stopp et ah, appellees.
    Two witnesses must each testify to all the fact's necessary in proof of execution, and the testimony of the second witness is insufficient if it requires to be supplemented by that of the first witness, and does not cover every essential: Hock v. Hock, 6 S. & R. 47; Irvine’s Est., 206 Pa. 1; Simrell’s Est., 154 Pa. 604; Michell v. Low, 213 Pa. 526.
    May 4, 1908:
    The requirements of attestation imposed by the act of 1855 were not complied with: Irvine’s Est., 206 Pa. 1; Luper v. Werts, 23 Pac. Repr. 850 ; Gerner v. Mosher, 78 N. W. Repr. 384; Donovan v. St. Anthony & D. Elevator Co., 80 N. W. Repr. 772 ; Seal v. Claridge, L. R. 7 Q. B. Div. 516 ; Skinner v. American Bible Society, 65 N. W. Repr. 1037; Jenkins v. Dawes, 115 Mass. 599; Swift v. Wiley, 40 Ky. 114; White v. Magarahan, 87 Ga. 217 ; Chase v. Kittredge, 93 Mass. 49 ; Reed v. Watson, 27 Ind. 443 ; Ludlow v. Ludlow, 35 N. J. Eq. 480; Robbins v. Robbins, 50 N. J. Eq. 742 (26 Atl. Repr. 673); Doe v. Burdett, 9 Ad. & El. 936 ; Sloan v. Sloan, 184 Ill. 579 (59 N. E. Repr. 952); Wright v. Wakeford, 4 Taunton, 213; Brown v. Skirrow, L. R. (1902) Prob. Div. 3.

      Samuel Dickson, with him Henry S. Drinker, Jr., and Henry D. Paxson, for Henry D. Paxson et ah, appellees,
    cited : Irvine’s Est., 206 Pa. 1; Hock v. Hock, 6 S. &. R. 47 ; Combs’s App., 105 Pa. 155; Michell v. Low, 213 Pa. 526; Derr v. Greenawalt, 76 Pa. 239 ; Sloan v. Sloan, 184 Ill. 579 ; Phila. Ins. Co. v. Ins. Co., 23 Pa. 250; Jordan’s Est., 161 Pa. 393; Search’s App., 13 Pa. 108; Haus v. Palmer, 21 Pa. 296; Griffiths v. Griffiths, L. R. 2 Prob. & Div. 300.
   Opinion by

Mr. Chief Justice Mitchell,

Appellants have presented a learned argument on the etymology and primary meaning of the word “ attest,” but unfortunately it has little bearing on the question in this case. The word has several variations of meaning, subordinate to' the general sense, among which the latest authority, the new Oxford dictionary, gives (a) to bear witness to, to testify, to certify, (b) formally by signature. The exact question here is the sense in which the legislature used the word "in the Act of April 26, 1855, P. L. 328.

By the general wills Act of April 8, 1833, P. L. 249, wills in all cases shall be proved by the oaths or affirmations of two or more competent witnesses.” No subscribing witnesses are necessarj7-, «proof of the testator’s signature by witnesses acquainted with his handwriting being sufficient, and the witnesses being only required to be “ competent, ” i. e., disinterested, at the time of making proof. In the act of 1855, however, the legislature set an entirely different standard of proof. By that act “ no estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to anybody politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor.”

The purpose of this act is plain. It was to make reasonably sure that testamentary gifts to religion or charity were the result of deliberate intent of the testator, and were not coerced from him while in weakened physical condition under the influence of the doubts and terrors of impending death. The main feature of this precaution was, of course, the requirement that the gift must be by deed or will one calendar month before the decease of the donor or testator, and this fact must be attested by two credible and, at the time, disinterested witnesses. Nothing is easier than to antedate a writing, whether deed or will, and the statute guarded against that danger by the requirement that it should be not merely proved, but “attested ” by two witnesses, and those two must be at “ the time disinterested.” At what time? Certainly not merely at the time of probate, for that was the general rule under the act of 1833, and did not need any re-enactment. Those whose memory goes further back than the evidence act of 1887 will recall the amount of time and argument spent over questions of the interest of witnesses, and whether the interest had been or could be released. The act closed all controversy on this point by the requirement that the witnesses should be disinterested “at the time.” At what time? Clearly at the time the instrument was executed in the manner required by the statute. In Irvine’s Estate, 206 Pa. 1, it was said by our Brother Mestrezat, that this language “pre-supposes the existence of a writing signed by the testator at the time of the attestation,” and that necessarily is the time the qualification of the witnesses must be referred to.

Having regard, therefore, to the change in the language of the two statutes from “ proved ” in the act of 1833 to “ attested ” in the act of 1855, to the requirement of the latter that the two witnesses shall be “ at the time ” disinterested, and the absence of any other reasonable intendment as to that time than the date of compliance with the requirements of the statute, to wit: the execution of the will not less than a calendar month before testator’s death, and its attestation by two “ at the time” disinterested witnesses, the conclusion is not to be avoided that the attestation must be by witnesses who then and there make compliance with the statute certain by subscribing their names. An attesting witness under this statute means a subscribing witness.

The learned court below called attention to the danger from the death of one or both witnesses that the gift might fail if the witnesses had not signed. It is a strong argument, ab in-con venienti, and adds to the force of the conclusion. But we put our decision on the manifestly intentional variation in the lam guage of the two statutes and the nature of the additional requirements in the act of 1855.

Decree affirmed.


author: Mr. Justice Brown,

text:
    Shoenberger’s Estate.

      Taxation — Collateral inheritance tax — Decedents’ estates — Conversion of real estate — Domicile—Wrongful payment of tax — Legacy—Will.
    Where a testator domiciled in another state directs his executors to sell and convert into cash his real estate, the proceeds of the sale of real estate situated in Pennsylvania is not subject to the payment of a collateral tax to the state of Pennsylvania, inasmuch as the real estate was converted into personalty, and its situs was at the time of the testator’s death in the state of his domicile, and therefore not subject to the Pennsylvania tax.
    Where a testator domiciled in another state appointed an executor as to his estate within the state of his domicile, and also appointed executors in Pennsylvania, as to all his other estate, directing a sale of the real estate wherever situated, except lands specifically devised, and also directing the executors of his domicile, after paying legacies, to pay over any balance to the Pennsylvania executors, and it appears that the executors in Pennsylvania improperly, but without objections by the residuary legatees, paid to the state of Pennsylvania a collateral tax on real estate situated in Pennsylvania, and after several accounts had been filed and distribution made without deduction for collateral tax there remained only one legacy to be paid and the residuary estate to bé distributed, five per cent cannot be deducted from such legacy as such legacy’s proportion of the collateral tax paid to the state.
    Argued Jan. 16, 1908.
    Appeal, No. 372, Jan. T., 1907, by St.- Margaret Memorial Hospital, from decree of O. C. Phila. Co., Jan. T., 1891, No. 165, sustaining exceptions to adjudication in Estate of John H. Shoenberger, deceased.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stéwart, JJ.
    Reversed.
    Exceptions to adjudication of Penrose, J.
    •In addition to the facts stated in the opinion of the Supreme Oourt it appeared that the auditing judge awarded a legacy of $250,000 to the' St. Margaret Memorial Hospital. Exceptions were filed to the adjudication on the ground that the collateral tax had not been deducted from the legacy. The court sustained the exceptions.
    Penrose, J., filed the following opinion: •
    When Miller v. Com., Ill Pa. 321, decided that lands in another state of which a Pennsylvania testator died seized were made subject to collateral inheritance tax, under the doctrine of mobilia sequuntur personam, if his will worked a conversion and gave the proceeds of sales to collaterals (though the conversion, of course, did not take place during his .lifetime); it necessarily followed, conversely, that when lands in Pennsylvania are converted by the will of- a nonresident -owner, the proceeds are free from tax. ■' .;
    But, unfortunately; in the present case, this was not affirmatively decided by the Supreme Court until 1893 (Coleman’s Es-tate, 159 Pa. 231) ; and in the meantime, in 1891, tax upon the lands of the- decedent in-Pennsylvania was demanded, upon- a valuation of $515,000, although he was a citizen of New York,1 and his will, proved in 1889, directed that they should be sold.The tax thus paid amounted to $25,750. . ;

      There have been eight previous accounts, all of which were duly adjudicated ; and, following the decision of Judge Strong in Kintzing v. Hutchinson, 7 W. N. C. 226, which had always been accepted as settling the law that the personal estate of one domiciled out of the state was not subject to collateral inheritance tax in Pennsylvania, payments to the vai’ious pecuniary legatees were awarded without deduction of tax. No exceptions to any of these adjudications, of which the last was in September, 1897, were filed by the commonwealth.
    Five years later, however, in Lewis’s Estate, 203 Pa. 211, it was decided, by a per curiam, adopting the opinion of the court below (orphans’ court of Luzerne county), that when the “ executors, legatees and creditors of one domiciled in another state agree that there shall be a complete distribution ” in Pennsylvania of the assets actually in the state, “ the commonwealth is entitled to the collateral inheritance tax.”
    The present account, which was filed in February, 1907, and came before the court for adjudication in the following June, is of the residuary estate of the testator given to his executors in trust to hold “ and as soon as practicable convert the same into money and to pay over to ‘ The St. Margaret Memorial Hospital,’ hereinbefore provided to be incorporated, the sum of $250,000, to be added to the permanent fund of the corporation for the maintenance of said hospital as a free institution,” the residue to be divided among his brothers and sisters and their children, etc., as there set forth.
    Neither the hospital (which as the will shows was one of the chief objects of the testator’s bounty), nor the commonwealth was represented before the auditing judge, and there being nothing at the time to show that the legatee had joined in the request for distribution, and no demand for tax being made for the commonwealth, the legacy was awarded without deduction.
    The effect of this is that the entire tax on real estate paid in 1891, $25,750, to which the commonwealth was not entitled, falls upon the final distributees of the residuary estate, while the legacy of $250,000, which, under Lewis’s Estate, is subject to tax (the legatee now coming, by counsel, before the court and asking for payment in full), is relieved altogether.
    As between the legatee and the other distributees of the residuary estate, there is not sufficient evidence of intention afforded by the will to exempt the former from the burden and cast it upon the latter, and the exceptions which have been filed must therefore be sustained, so much of the amount already received by the commonwealth, in 1891, as equals the tax on this legacy, $12,500, being applied as if now awarded, and the award to the legatee being reduced accordingly.
    The exceptions are sustained and the adjudication and schedule of distribution modified in conformity with this opinion.

      Error assigned was decree sustaining the exceptions.

      William R. Blair, with him George O'. Burgwin, for appellant.
    ¥e submit that the appellant’s legacy was liable for, and having paid a collateral inheritance, tax in the state of New York, it was not liable to the taxation in the state of Pennsylvania : Coleman’s Appeal, 159 Pa. 231; Williamson’s Estate, 153 Pa. 508 ; Miller v. Com., 111 Pa. 321; Miller’s Estate, 182 Pa. 157; Handley’s Estate, 181 Pa. 339.
    But assuming for argument’s sake that the legacy might have been taxed by the state of Pennsylvania, that does not justify the decree of the court below.
    The payment of the sum of $25,750 to the state of Pennsylvania as a compromise, and without any regular assessment or adjudication of the right of the state to the claim made by it, was a mere payment of an illegal demand against the estate, and surely cannot be chargeable in any part against the appellant.
    But finally, we submit that the payment of $25,750 to the state being clearly without warrant of law, it is clear that no part of the sum can be assessed, as a collateral inheritance tax, against the legacy of appellant. It is extremely difficult to see how logically, or justly, this could be done, even if appellees had had no other remedy. But they did have another remedy, an undoubted remedy, and a full and complete remedy. This remedy was, of course, the right to file exceptions to the credit claimed for said payment in the account, and to have recovered back from the state, through executors, the sum thus illegally paid the state of Pennsylvania. But this they did not do.

      May 4, 1908:
    .Finally, we submit there is no equity in assessing nearly one-half of this illegal payment against appellant in favor of the appellees here.

      John G. Johnson, for appellees, Horace Smith et al.

      James E Hood, for appellees, Alice E. Shoenberger et al.

      William Early Rhein, for appellee, Charles Chauncey, assignee of Ethelbert Watts.
   Opinion by

Mr. Justice Brown,

John PI. Shoenberger, a resident of the city of New York, died there in November, 1889, possessed of a large estate. He was childless, but left a widow, to whom, by his will, executed March 10, 1887, .he devised certain real estate and gave all of his personal property in his residence and stable. In addition, he gave her certain securities, of the value of several hundred thousand dollars, and any balance that might remain of a deposit to his credit in a New York bank, after the payment-of his funeral expenses, just debts and the costs of the administration of that portion of his estate given to his wife. After making this provision for her, he made the following appointment of executors by the third- clause of his will: “ I hereby nominate and appoint my beloved wife, Alice, executrix, and my nephew, Alexander T. Mason, executor, of this my will, in relation to the portion of my estate mentioned in the second clause of this my will; and of whatever portion of my estate may be situate at the time of my decease in the State of- New York, and I direct that neither of them shall be required to give security for the performance of their duties. And I hereby order, authorize and direct- my executor, above named, to pay and hand over any portion of my estate, whether moneys in bank, bonds, mortgages, certificates of stock, notes or other securities which may be in the City of New York at the time of my decease, and which are not hereinbefore specifically bequeathed, to the trustee and executors hereinafter appointed for the States of Pennsylvania,. Ohio, Kentucky and Illinois, the said portion so paid over to form part of my general estate to be administered by them.” The trustee and executors referred to in the foregoing clause were appointed by the following: “ I do hereby constitute and appoint ‘ the Pennsylvania Company for the Insurance on Lives and the'Granting Annuities of the City of Philadelphia,’ Pennsylvania, my Trustee and Executors, and my friends, Andrew Long, Esq., now cashier of the Exchange-National Bank of Pittsburg, Pennsylvania, J. M. Brownson, Esq., now in the employment of Messrs. Shóenberger, Speir and Co., of Pittsburg, Pennsylvania-, and Anthony J. Antello, Esq., of Philadelphia, Pennsylvania, as co-executors of this my last "Will and Testament, for all that portion of-my estate, real and personal, and effects and interests in the States of Pennsylvania, Ohio, Kentucky and Illinois, and of any property that may be transferred to'them upon the close of the administration of my estate in the State of New York by my Executors hereinbefore appointed by me for that State.” . ■■

The entire personal. estate of the decedent remaining after the provision for his wife, together with the-proceeds-of his real estate, which he directed his Pennsylvania executors to convert into money, passed into their hands. They filed nine accounts in the court below, the last involving nothing but the residuary estate. All of the pecuniary legacies, except those given in the residuary clause, were paid on the adjudications of the prior accounts, the eighth having‘been adjudicated on December 10, 1897.' At that time there was a balance of $81,-332.39, and it was directed to be held for a further account-. It is included in' the last account, showing a fund in the hands of the accountants of $272,276.63, out of which they are directed to pay to the appellant a bequest of $250,000.

■ Though the bulk of the personal estate of the testator, including the proceeds of the sale of the real estate, passed into the' hands of the Pennsylvania executors, the commonwéalth made no claim for collateral inheritance tax on the legacies heretofore paid by them, amounting to $1,326,000. In October, 1891, a collateral inheritance tax of $25,750 was paid “as per compromise ” on $515,000, the appraised value of testator’s real estate, situated in this state, and, on the final distribution of the residuary estate, the court below deducted $12,500, or five per cent, from the bequest to the appellant, holding that though the commonwealth had not been entitled to the tax -of $25,750 paid on the real estate, the appellant’s legacy of $250,-000 was liable to tax under Lewis’s Estate, 203 Pa. 211, and deducted the same from it, to the relief of the final distributees of the residuary estate. The single question before us is the correctness of this ruling. From all that appears the collateral inheritance tax of 125,750 may have been paid upon the real estate of the testator, which he specifically devised; but, assuming it to have been upon that sold bjr the executors, the learned judge of the orphans’ court correctly held that the commonwealth was not entitled to collateral inheritance tax upon it: Coleman’s Estate, 159 Pa. 231; and, this being so, Lewis’s Estate is not authority for relieving the final distributees at the expense of the appellant.

The final distributees of the residuary estate having permitted the tax of $25,750 to be paid to the commonwealth, they cannot now ask that $12,500 be deducted from appellant’s legacy, to their relief. They ought to have protected themselves at the proper time. Even if the tax had been properly paid, there is no reason why appellant’s legacy should bear the burden of nearly half of it, instead of its just proportion, as one of many legacies amounting in the aggregate to more than $1,500,000.

The liability of the property of a decedent to collateral inheritance tax is to be determined by its situs at the time of his death. The words of our collateral inheritance tax Act of May 6, 1887, P. L. 79, are: “ All estates, real, personal and mixed, of every kind whatsoever, situated within this state, whether the person or persons dying seised thereof be domiciled within or out of this state, and all such estates situated in another state, territory, or country, when the person, or persons, dying seised thereof, shall have their domicile within this commonwealth, passing from any person, who may die seised or possessed of such estates, either by will, or under the intestate laws of this state, or any part of such estate, or estates, or interest therein, transferred by deed, grant, bargain or sale, made or intended to take effect, in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to bodies corporate or politic, in trust or otherwise, other than to or for the use of father, mother, husband, wife, children and lineal descendants born in lawful wedlock, or the wife, or widow of the son of the person dying seised or possessed thereof, shall be and they are hereby made subject to a tax of five dollars on every hundred dollars of the clear value of such estate or estates.” The situs of the personal property of this testator at the time of his death was in New York, for it was all actually “situated” there, except the proceeds of the real estate which he directed to be converted into money, and this must be regarded as part of his personal estate situated in his domicile, for the status of property at the instant of death must govern the question of tax: Handley’s Estate, 181 Pa. 339. At the instant of the testator’s death his real estate, which he had directed to be converted into money, became, by operation of law, so converted, and all of the personal estate belonging to him was, therefore, either actually or by legal fiction, within the state of New York. None of it having been “situated” here at the time of his death, the commonwealth had no claim upon it for collateral inheritance tax. The domicile of the testator, at the time of his death, was the situs of his personal estate, and that situs, and not what he directed to be done with his estate, is the sole test of the right of this sovereignty to tax it. The state taxes, and can tax, only what is within it at the time of the death of the owner of it.

Lewis’s Estate — not a convincing authority — was decided upon its own peculiar facts, and is not to be stretched, as it manifestly was by the court below, in extending it to the present case., The actual situs of the property of Harriet E. Lewis, which she directed to be distributed among collateral legatees, was, at the time of her death, and had been for many years prior thereto, within this state, in the custody and control of her agents here, empowered to invest and reinvest it, and the executor, legatees and foreign creditors requested that there should he in Luzerne county, through its orphans’ court, “a complete administration and distribution of the whole estate comprehended in the account.” No such situation is presented here, and there is not even the analogy which the learned judge below seemed to think existed of “ the legatee now coming, by counsel, before the court and asking for payment in full.” The appellant did not even appear before the adjudicating judge to claim the legacy, according to the appearances noted by him. Its first appearance by counsel, so far as can be gathered from the record, was before the court in banc on exceptions to-the adjudication, to resist the attempt of the appellees to have $12,500 deducted from its legacy.

The decree- of the court below is reversed, the exceptions to the adjudication are overruled and the same is confirmed, the costs on this appeal to be paid by the appellees. . .