author: Knox, J.

text:
    Yearsley versus Flanigen.
    1. When a contract is made with a bricklayer to do all the brick and stone work about the erection of a building including the laying of the pavement, the contract being entire a mechanics’ lien may be filed within six months from the completion of the work although all of it may have been done except the pavement more than six months before the lien was filed. The work upon the pavement may be included in the lien.
    2. But if the laying of the pavement be done under a separate contract from . that of constructing the walls and other masonry of the building, the case will be different.
    3. But though the contract for constructing the building and laying the pavement be entire, if the building is finished and the contract treated by the parties as complete, and a considerable time has elapsed before the pavement is laid, and other rights have intervened, the claim filed more than six months from the date of the last work upon the building, will be too late.
    4. The same principles apply where the property is sold at sheriff’s sale before the expiration of the time allowed by law for filing a lien. The claim may then be made upon the fund, with the same effect as it could be made against the building if the claim had been entered of record before its sale.
    5. Whether the contract with the mechanic included the laying of the pavement as well as the erection of the building, when contested and contradictory evidence has been given upon the subject, was for the consideration of the jury. See also 6 Harris 160, Holden v. Winslow; 7 Id. 341, Bartlett v. Kingan.
    Error to the District Court, Philadelphia.

    This was a feigned issue in which Pascal Yearsley was plaintiff, and John Flanigen and Geo. W. Carpenter were defendants. The dispute arose upon a claim preferred by the plaintiff to a portion of the fund raised by sheriff’s sale of a building used as a distillery, and a lot of ground. The property was sold on the 1st day of March, 1852, as the property of J. K. Tyson & Co. The fund was not sufficient to pay all the claims upon it, and the plaintiff asked a pro rata upon his claim, for 451 yards of digging; for above 175 perches of mason work and mortar; and for 171,714 bricks and laying the same, and' mortar; and for measuring the work, in all $965.88J.
    On the trial it appeared that the plaintiff had been employed by J. K. Tyson & Co. to do certain brick and stone work at or about the building; and a witness testified that one of the firm of J. K. Tyson & Co. spoke to the plaintiff about doing the brick and stone work for the building referred to, to lay all the bricks about the building, the stacks, foundations, and pavement.

    Another witness stated that the pavement was laid in November, 1851; that it was completed on the 8th November. That about the 1st of November, Tyson came to him and said that Yearsley had told him that when he, Tyson, wanted the pavement laid, to let him know, and he would send men to do it; and that he (Tyson) wanted it done then. The witness said that he sent men and had it done.
    J. K. Tyson, a witness called on part of the defendants, testified that the work done by the plaintiff on the building was done before the engine was started, which was on the 27th of June. He further said that they (Tyson & Co.) did not expect to have to lay the pavement for two or three years, and would not have done so but for a notice received. He said that nothing was said about laying the pavement when the bargain was made with Yearsley. That when he got the notice to have the- pavement laid (it was from the office of the district), he saw the foreman of Yearsley about laying it.
    The notice to have the footway or pavement laid was dated October 23, 1851.
    Stroud, J., inter alia, observed in his charge, that it would seem as the result of the evidence,, that all the work, except the pavement, was done by the 18th of July. He charged that he entertained “ no doubt but that the pavement is no part of the buildingthat “ no agreement can embrace it; they cannot make it a lien; they cannot alter the law.”
    October 22, 1852, verdict was rendered for the defendants.
    Error was assigned to the portion of the charge above referred to.

      Hamilton, for plaintiff in error.
    The Act of 1836 provides that a lien may be had for debts contracted for work done or materials furnished for or about the erection or construction of a building. By the second section it is provided that the “ lien of such debt shall extend to the ground covered by such building, and to so much other ground immediately adjacent thereto, and belonging in like manner to the owner of such building, as may be necessary for the ordinary and useful purposes of such building.”
    It was said that in this case the delay in laying the pavement was owing to the owners of the building. It was alleged that the contract was entire, and that before the pavement was laid a claim could not legally have been filed, as the contract would not have been compléte. Opinion of Lewis, J., in case of Shaffer v. Hull, 3 P. L. J. 321. Case of Hill’s Estate, same book 323, also cited. That the pavement was to be considered in determining this case reference was made to 10 Barr 413, Pres. Church v. Allison; 1 Harris 497, Barclay’s Appeal; 8 Barr 473, Lauman’s Appeal; 5 Harris 234, Harper v. Keely; 6 Harris 160, Holden v. Winslow; 7 Harris 341, Bartlett v. Kingan.

      Perkins, for defendants in error.
   The opinion of the.Court was delivered by

Knox, J.

Where a contract is made with a bricklayer to do all the brick and stone work about the erection of a building, which contract by its terms includes the laying of the pavement, as it is an entirety a mechanic’s lien may be filed within six months from the completion of the work, even though it may have all been done except the pavement more than six months before the lien was filed. The work upon the pavement may be included in the lien.

If laying the pavement is done under a separate contract from that of constructing the walls and other masonry, and six months is suffered to elapse from the last work upon the building proper, before the lien is filed, it is then too late, as it cannot be connected with the work in laying the pavement.

Even where the contract is entire, if the building is finished, and the contract treated as complete by the parties and a considerable period of time is suffered to pass before the pavement is laid, and intervening rights have attached, the lien would not be in time, if not filed within six months from the date of the last work upon the building itself; excluding the pavement.

The same principles apply where the property is sold by the sheriff before the expiration of the time allowed for the lien to be filed. The claim may then be made upon the fund produced by the sale, in like manner as though the lien had been entered of record.

Whether the original contract between Tyson and Yearsley included the work on the pavement or not, was matter of contest between the parties upon the trial of this cause in the District Court. The evidence was contradictory, and should have been submitted to the jury, as it had an important bearing upon the questions at issue.

The learned judge of the District Court was of the opinion that the lien could not extend to the pavement, and that no agreement of the parties could embrace it. In other words, as we understand the charge, that no matter whether the original .contract between the parties for the stone and brick work about the erection of the building included the pavement or not, the lien was gone if more than six months had transpired between the time when the last work was done, other than that npon the pavement, and the sale of the property.

In this we think there was error.

Judgment reversed and venire de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Pennypacker versus Umberger.
    1. In a suit on a check by the holder against' the drawer, the payee and endorser of it is not competent to testify that it was unavailable as between the maker and payee; but he is competent to prove matters arising subsequent to its creation as between the payee and a subsequent party.
    2. In an action on a check for $250, brought by the holder against the drawer, after proof to the effect that the check was drawn for the mere accommodation of the payee, or without consideration, it was Held, that the payee who had endorsed the check, was a competent witness, on the part of the drawer, to prove that the payee pledged the check to the plaintiff as security for a loan of $200; that a few days after the check was payable he paid to the plaintiff $100, and before suit brought he tendered $100 more.
    3. He was not incompetent from interest, because if the plaintiff recovered, the witness would be liable to the defendant; if the plaintiff failed to recover against the defendant, the witness as endorser, would be liable to the plaintiff, and the verdict in the suit against the drawer could not be used in his favor.
    4. The debtor has a right to appropriate a payment by him, and the account books of the plaintiff, the creditor who received the money, showing the application of the payment to another claim against such debtor, are not evidence on the part of such plaintiff to contradict the testimony of the debtor as to the application of the money paid.
    5. Where a tender to the plaintiff is made before suit brought, equal to the amount due the plaintiff, and the money is brought into Court under the plea of tender, the verdict should be for the defendant.

    Error to the District Court of Philadelphia.

    This was an action by Herman Pennypacker v. J. C. Umberger, brought to recover the amount of a check, drawn by Umberger, the defendant, on the Western Bank, to the order of W. W. Clark, and was endorsed by Clark. The check was drawn on the 4th of March, 1852, and was for $250. The bank was notified by the drawer not to pay the cheek.
    On the trial, on the part of the defendant it was testified by a witness, that he was present when Umberger gave the check to Clark; and that Umberger told Clark that if the check was not returned before the day it fell due, he would stop the payment of it. No consideration passed between them.

    Clark, the payee, was then offered as a witness on the part of the defendant. Héwas objected to, 1. That it was not admissible to contradict the check by oral testimony. 2. That the check being negotiable and having been actually negotiated, Clark, the payee, was not a competent witness to invalidate it in the hands of a third party. 3. That he was not competent to prove a payment of any part of it by himself.
    .He was admitted, and he testified that he received the check from Umberger, and pledged it with the plaintiff for a loan of $200; that he"received but $200. He further' said that he repaid to Pennypacker $100 on account of the check, about a week after the check was payable; and that about a week afterwards he tendered him $100 more.
    On his cross-examination, he said that at the time he took the check to Pennypacker he owed him borrowed money—a due-bill for $60, for which Pennypacker had merchandise as security. He said that when he passed the check to Pennypacker he told him he could use it in the payment of his bills.
    Afterwards the plaintiff’s account-books were offered on his part, to show that the $100 received from Clark had been credited to him on an account between him and the plaintiff. Objection was made, and the books were rejected.
    The amount of the tender, $100, was brought into Court.
    The Court instructed the jury that if they believed the testimony of Clark, the $100 should be appropriated to the check; if they did not believe him, then it should be applied to the payment of the book debt.
    How the verdict was rendered was not stated on the paper-books ; it, however, seemed to have been rendered for the defendant.
    Error was assigned: 1. To the admission of oral testimony to affect the check. 2. To the admission of Clark. 3. To the rejection of the books. 4. To the charge that Clark could direct to what account the $100 'should be credited. . 5. That verdict should have been rendered for the plaintiff for $101.
    Miller, for plaintiff in error.
    It was said that a party to a negotiable instrument, cannot invalidate it by his own testimony: 1 Term Rep. 296; 6 Pet. 51; 6 Ser. & R. 113. As to the fourth assignment it was admitted that Clark had the right to direct the application of $100, at the time it was paid; but it was objected that he was not a competent witness to prove the direction. As to the fifth assignment, it was said that if the $100 were credited on the check, there was still due the plaintiff $101, for which a verdict should'have been rendered and costs.

      Clay, for defendant in error.
    Clark, the endorser, was not called to prove that no consideration passed between him and the defendant when the check was received; this was proved by the other witness. Clark was called, 1. To show that the check was deposited by him with the plaintiff as a collateral security for $200
      only; 2. To prove the payment by himself of $100, on account of the loan; and 3. To prove a tender of the balance with interest. It was contended that for these purposes he was competent. He was not offered to show that the check was made for his accommodation, nor in any way to impeach or invalidate it as-a security; but merely to show that it was pledged for less than the amount payable on its face, and that after it fell due, the amount borrowed on it had been repaid or tendered. Cited 3 Barr 381, Appleton v. Donaldson. Also, though an endorser of a negotiable instrument is not competent to impeach it in the hands of a bond fide holder, by showing anything which attended its inception or attached to it before it left the hands of the original parties, as that the consideration was usurious or that it failed, yet he may testify to facts which occurred subsequent to the negotiation of the instrument: 9 Barr 82; 4 Harris 128; 5 Barr 52; 3 Harris 64; 11 Johns. 128.
    As to the fourth assignment. There was no proof that the $100 was paid on any other account than on the check. The balance of the account of the plaintiff against Clark was about $60, and if that were paid out of the $100, there would remain a balance of the $100 applicable to the check.
    5th. As the plaintiff failed to recover more than the sum paid into Court, he was not entitled to a verdict: Tidd’s Pr. 656.
   The opinion of the Court was delivered by

Knox, J.

This action was brought to recover the amount of a check upon the Western Bank, drawn by the defendant to the order of W. W. Clark, and by him endorsed to the plaintiff.

On the trial, after proving that the check was made for the accommodation of Clark, he was offered by the defendant as a witness to prove,

1st. That the check was deposited by him with the plaintiff as collateral security for a loan of $200.

2d. That he had paid to the plaintiff on account of the loan $100, and tendered the residue before suit brought.

The admission of Clark as a witness, forms the principal matter complained of by the plaintiff in error. It is objected, first, that he was interested; and second, that being a party to the instrument he was incompetent to invalidate it..'

It is not easy to perceive how the witness was incompetent upon the question of interest. If Pennypaeker recovered, Clark would be liable to Umberger, and if there was no recovery, Clark would be liable to Pennypaeker, and the verdict in this case could not be used in his favor. That he was interested in the question was for the jury upon his credibility, and not for the Court upon his competency.

Upon the ground of policy, the rule is firmly established in Pennsylvania, that a party to a note or bill which is strictly negotiable and has been actually negotiated, cannot be a witness to impeach it. He cannot be permitted to show that in its concoction it was unavailable as between the payee and the maker. But this rule does not apply to matters arising subsequently to the creation of the original liability, as between other than the first parties. In Appleton v. Donaldson, 3 Barr 381, one of the payees of the note, for whose accommodation it had been made, was permitted to prove that it was pledged by the firm of which he was a member, to the plaintiff as collateral security for the payment of a sum less than its face, and that a tender had been made for the amount of the pledge. In the case of the Harrisburg Bank v. Forster, 8 Watts 304, it is ruled that whether an endorser is a competent witness, depends upon the character of the evidence which he is to give. That although he is incompetent to establish a want of consideration to the note, he is competent to prove a direct payment of it by the maker. So in Snyder v. Wilt, 3 Harris 59, (Hover, a party to the original instrument upon which the action was based, was received as a witness as to matters which took place after the execution of the draft. The same principle was held in Maynard v. Nekervis, 9 Barr 81.

Under these authorities, and others not necessary to cite, the Court below properly admitted Clark to prove how the check was held by Pennypacker, and what payments had been made upon it after it came into his possession.

The books of account were properly rejected. They were not evidence to disprove what Clark had testified to in relation to the appropriation of the $100 payment. There is no plainer principle of law, than that the debtor may if he chooses direct how a payment is to be applied.

Where a tender is made before suit brought, equal to what is found to be unpaid, and the money is afterwards paid into Court upon a plea of tender, the verdict should be for the defendant. There does not appear to have been a formal plea of tender, but there is no point raised upon this branch of the case by the bill of exceptions. If there was error in the verdict under the pleadings, there is nothing upon the record by which we can correct it.

Judgment affirmed.


author: Lewis, J.

text:
    Academy of Fine Arts versus Philadelphia County.
    1. Statutes which strip government of any portion of its prerogative, or give exemption from a general burden, should receive a strict interpretation.
    2. The academies meant to be exempted from taxation by the Act of 16th April, 1838, were those designed for purposes of education of a general character. The Pennsylvania Academy of Pine Arts, in Philadelphia, is not exempted by that Act from taxation.
    Error to the District Court of Philadelphia.

    This was an action by the Pennsylvania Academy of Pine Arts v. The County of Philadelphia, to recover back certain taxes, county rates and levies, assessed for the year 1852, on the building on Chestnut street, Philadelphia, owned by the said corporation and occupied by it for the exhibition of its works of art, &c.
    On the part of the plaintiff, it was claimed that the said building was exempt from taxation under the 29th section of the Act of 16th April, 1838, which is as follows:
    “ That from and after the first day of May next, all churches, .meeting-houses, or other regular places of stated religious worship, with the grounds thereto annexed for the occupancy and better enjoyment of the same, all burial grounds belonging to any religious congregation, all universities, colleges, academies, and schoolhouses, belonging to any county, borough, or school district, or incorporated, erected, endowed, or established by virtue of any law of this Commonwealth, with the grounds thereto annexed, all court-houses and jails, be and the same are hereby exempted from all and every county, road, city, borough, poor, and school tax,” &c.
    In the 13th section of the Act of 14th April, 1851, Acts, p. 625, it is enacted, “ That all property, real or personal, belonging to any association or incorporated company which is now by law exempt from taxation, other than that which is in the actual use and occupation of such association or incorporated company, and from which an income or revenue is derived by the owners thereof, shall hereafter be subject to taxation, &c. And so much of any law as is hereby altered and supplied, he and the same is hereby repealed: Provided, That nothing herein contained shall he construed to exempt cemetery companies from taxation.” •
    As to the objects of the Institution, it appeared that persons visited it for the study of its antique statues, or of living subjects; that pupils were gratuitously instructed therein, and that it was open to students of art for the purpose of copying any of the subjects of art belonging to the Institution.
    The amount of tax for 1852 was paid under protest, and this action was brought to recover it back.

      By agreement of counsel, verdict was rendered for the plaintiff for $234.30, subject to the opinion of the Court upon the subjects in dispute.
    It appeared that a majority of the Judges of the District Court were of opinion that the property in question was exempt from taxation, but all of the Judges thought that the Court had not jurisdiction of the suit; that a specific mode of redress on the subject of assessments had been provided by the legislature, viz., by appeal to the commissioners, under the 9th and 13th sections of " the Act of 15th April, 1834; and by the Act of 1st April, 1836, an appeal, in Philadelphia and Bucks counties, to the Court of Common Pleas.

    Judgment was therefore given for the defendants.
    It was assigned for error: 1. That the Court erred in declining jurisdiction of the cause. 2. That the Court below, being of opinion that the plaintiff’s property 'was exempt from taxation, erred in not entering judgment for the plaintiff.

      C. Ingersoll, for the corporation.

      Baker and Badger, for the County of Philadelphia.
   The opinion of the Court was delivered by

Lewis, J.

This Court has repeatedly declared it to be a rule of the public law that taxes shall be assessed in such manner that all the citizens may pay their quota in proportion to their abilities and the advantages they deriye from the society: Hood’s Estate, May, 1853; Vattel, Kent, &c. All laws exempting any portion of the people or property from bearing a proper share of the public burdens, unless in consideration of adequate contributions to the community in some other form, are therefore unjust. To create privileged classes, and to exempt them from the' payment of their just proportion of the public taxes, is to lay increased taxes upon the other citizens; and, unless compensated for, by corresponding advantages to the public, is to violate the duties of government. For this reason, statutes which strip the government of any portion of its prerogative, or give exemption from a general burden, should receive a strict interpretation: 11 Rep. 74; 8 Mod. 8; Cowper 26. No interests, falling within the general description of taxable property, can claim exemption from bearing their just proportion of the public charges, unless the exemption be so clearly expressed in the statute as to .admit of no other construction. It is never to be presumed that the legislature intend to lay .unequal burdens upon-the people; and their enactments are not to be construed so as to produce that result, unless the intent is so plainly expressed as to render it unavoidable: Dwarris on Statutes 669, 749, 750.

With these principles in view, we arrive at the question, Is the “ Pennsylvania Academy of Fine Arts” one of the academies which the legislature, in the Act of 1838, designed to exempt from taxation?

That Act exempts from contributions to the support of government, “all universities, colleges, academies and school-houses, belonging to any county, borough, or school district, or incorporation, endowed or established by virtue of any law of this Commonwealth, with the grounds thereto annexed.” An academy originally meant a garden, grove, or villa, near Athens, where Plato and his followers held their philosophical conferences; but, of course, we are not to adopt this as the present meaning of the word. It has acquired, by the usage of modern times, a variety of meanings. It is sometimes used to designate a school for teaching a particular art or science. Rut it is most commonly understood to mean a school or seminary of learning (holding a rank between a university or college, and a common school), in which the arts and sciences in general are taught.

The term college is likewise used in various senses, as a college of electors, a college of surgeons, or a college of cardinals: but it is commonly used to describe an edifice appropriated to instruction in the languages and sciences in general. There is less diversity in the application of the term university. It is, in common parlance and in legal acceptation, as the word imports, “ a place where all kinds of literature are universally taught:” Jacobs’ Law Lie.; Webster, &e. But the term school has been used in a variety of senses. The ancients had their Socratie school, their Platonic school, and their Peripatetic or Ionic school. In modern times we have singing schools, dancing schools, riding schools, swimming schools, fencing schools, and even boxing schools. But the term school-house, when used without qualification or restriction, is generally understood to mean a place in which primary instruction is given in arts, sciences, and language generally.

In which of these various senses did the legislature make use of the terms universities, colleges, academies, and' school-houses? The principles of justice, and the well established rules of construction, are in harmony in their response to this question. Where words in a statute admit of several significations, one, which is reasonable and just in its results, and another which is contrary to reason and justice, it is the duty of the Courts to adopt the former. As the privileges granted by the statute necessarily impose an increase of the general burdens upon the property not thus exempt, it must be presumed that they were intended only for those institutions which compensated for the grant by contributing to the general benefit, The grant should not be carried by construction beyond the consideration to be received for it. It i’s true that the arts of painting and sculpture are refining and elevating in their tendencies. They advance the fame and fortunes of all who are qualified for the beautiful creations which belong to them. Like the kindred arts of poetry and music, they furnish' a joy for ever” to those whose tastes invite, and whose circumstances permit them to drink at the Castalian fountain.

But we make but indifferent progress in the improvement of our moral sentiments, if we desire to reach the pleasures and the profits of these refinements at the expense of others, whose tastes lead in a different direction, or whose circumstances preclude them from participating in such gratifications. Every useful trade, art, and profession, may lay equal claim to support from the public coffers. But until all are equally provided for, it is unjust to levy contributions upon the farmer, mechanic, and the laboring man, for the support of any- particular occupation. The Academy of Fine Arts presents us with pictures of life, with action. The Academy of Music, with its proposed opera, may furnish us with pictures of life without action. We may differ in our estimates of the merits of these institutions; but we do not perceive much ground for any difference of opinion on the question whether it is just to wring from the labors of those who derive but little pleasure or profit from them, the taxes necessary for their support.

The public charges are already sufficiently onerous. We are not prepared to increase them for purposes in which the people at large have but small interest, until the legislature shall direct us to do so in language not to be misunderstood. As we have seen that the term university means a place where all kinds of literature are universally taught, and as it is plain that this was the sense in which the legislature used the word, it may serve as a key to unlock their meaning with respect to the other institutions for instruction, enumerated in the same clause. We have no doubt that the exemption was intended only in favor of other institutions of inferior degree, but of the same general character, and that the Academy of Fine Arts was not designed to be embraced in the grant.

This disposes of the case, and renders it unnecessary to consider the other questions discussed in the argument.

Judgment affirmed.


text:
    Whitney’s Appeal.
    1. The Act of 14th June, 1836, relating to assignees for the benefit of creditors, was intended more to determine how the jurisdiction of the Common Pleas over trustees should be applied, than to give the jurisdiction. The jurisdiction is given by the 13th section of the Act of 16th June, 1836, relating to the jurisdiction and powers of the Courts, which gives to the Supreme Courts and the several Courts of Common Pleas the jurisdiction and powers of a Court of Chancery, inter alia, as to the control, removal, and discharge of trustees, and the appointnent of trustees, and the settlement of their accounts.
    2. By the 7th section of the said Act of 14th June, 1836, the Common Pleas, on the application of any person interested, or co-trustee or co-assignee, may issue a citation to an assignee or trustee for the benefit of creditors, whether appointed by voluntary assignment or in pursuance of the laws relating to insolvent debtors and domestic attachments, requiring an exhibition of the account of his trust,
    3. An assignee under a voluntary assignment for the benefit of creditors, after having accepted the trust and received moneys under it, is not relieved from the exhibition of a trust account by his having failed to give bond for the performance of his duty as trustee, or to file an inventory of the trust property. Such neglect of duty on his part will not deprive the Common Pleas of its jurisdiction over him.
    4. It appearing in the case to the satisfaction of the Court that the moneys charged to have been received by the assignee (viz., being money received in Philadelphia city and county for insurance of the real estáte assigned), were received under the assignment, a creditor owning a judgment against the debtor, which he had’ purchased after the assignment, had a right to the exhibition of an account by the trustee:
    5. The trustee was not relieved from such exhibition by reason that the assignments to him were but partial assignments, viz., being of all the property of the debtors in Delaware and Maryland, and that since their execution the debtors had made a general assignment of all their estate wheresoever, to an'other person, in trust, for all of their creditors; to which assignee the respondent had assigned all the property covered by the partial assignments, subject to payment to himself of money paid or advances made and liabilities incurred by reason of the trusts.
    6. The effect of the assignment by the respondent to the general assignee is not to be determined in the proceeding to compel the first assignee to account; nor can such assignment be interposed as an objection to the exhibition of an account.
    7. The right of the creditor to an account exists notwithstanding he may have another remedy.
    Appeal of William Whitney from the decree of the Court of Common 'Pleas, Philadelphia, dismissing his petition for a citation to James Whitaker to settle his account as trustee of the estate of A. W. Adams & Co.
    Andrew W. Adams and fleo. W. Hobson, of the city and county of Philadelphia, trading as Andrew W. Adams & Co., on the 19th November, 1847, assigned to James Whitaker all their estate, real, personal, and mixed, lying and being within the limits of the state of Delaware, in trust to sell the same, and after payment of expenses, then to pay all the creditors of the firm without preference. There was on the paper a memorandum of same date, signed by James Whitaker, accepting the trust.
    In the paper-book, a copy of an assignment by Whitaker to James Harriss was set out; and in it was alleged the assignment of 19th November, 1847, by Adams & Cm to Whitaker, of the estate of Adams & Co. in Delaware; arid.also that on the same date, Adams & Co. had executed to him another deed of assignment upon the same trusts, of all the estate and property of the firm,'in the state of Maryland. And’ further, that-Whitaker, in anticipation and part execution of the trusts, paid or assumed liabilities to several creditors of the firm, in the aggregate amounting to $6816, or thereabouts.
    It was also alleged that Adams arid Co. had, on the 25th February. 1848, executed to James Harriss an indenture of general assignment of all their estate arid property whatsoever and wheresoever, in trust for the benefit of all their;creditors pro rata, without preference.
    In the indenture Whitaker 'proeeeded'to make the assignment to Harriss of. all the estate and property which had come into his control by virtue of the said assignments or either of them, subject to and after the full repayment-to him of the sum paid in money, goods, or liabilities incurred, fee., by reason of the'said trusts or either of them. The conveyance to Harriss was in -trust.for the same uses as are contained in the general assignment by Adams & Co. to Harriss.
    William Whitney, in November, 1851, petitioned- the Court, stating the assignment to Whitaker first above referred to, and that he had accepted of the trust; -but that Whitaker had never submitted an account-; and alleging himself to he a creditor of Adams & Co., and asking for a citation.
    In the answer of Whitaker, filed December 27, 1851, it was submitted, that Whitney-had no right to call for an account in the Common Pleas, because a bill in equity alleging the same trust, and praying for an account, was pending in the Supreme Court; also, because, that the respondent, on the 26th January, 1848, executed to one James W. Harriss, of Philadelphia, an 'assignment for the benefit of the creditors of A. W. Adams & Co., of all the property which might have passed to him by assignment from them, except sufficient to indemnify himself for payments and advances and responsibilities to their creditors: which said assignment was duly recorded; and alleging that he was instructed that the creditors of Adams & Co. could not pass by the said assignee and ca]l upon him for an account.
    Another, or amended petition of Whitney was afterwards presented on April 19, 1852, in which was alleged the assignment to Whitaker by Adams & Co., of all their estate real, personal and mixed, in the state of Delaware; and alleging that Whitaker had collected large amounts of the trust property; viz., on the 2-5th May, 1849, from the Spring Garden Insurance Co. $1900; on the 18th January, 1850, from the Delaware Insurance Co. $4425; on the 1st May, 1850, from the Franklin Eire Insurance Co. $7824.70; and on the 2d April, 1849, from the Wilmington Eire Insurance Co., in compromise of a policy of $5000, $2750, in all amounting to $16,899.70. It was also alleged that Whitaker claimed to be a creditor of Adams & Co. to the amount of $6800, and sought to secure that sum out of the trust property contrary to law; that he had never filed an account, nor an inventory or appraisement of the assigned estate, nor given bond for the performance of the trust. It was further alleged that at the time of the first assignment to Whitaker, the firm of Adams & Co. were indebted to Schott & McOalla on a note ; on which note suit was brought in Philadelphia, and judgment obtained on 25th March, 1848, for $495.73, which judgment, on the ,9th October, 1848, was assigned to Whitney the petitioner.
    To the amended petition the respondent answered and demurred, alleging, first, that the petition as amended did not present a case under the Act relating to assignees, as it was represented that no security was given by the assignee, nor inventory filed, or appraisement made, ’which it was suggested were preliminary to the rendition of an account. 2. Because the petition showed that the assignment referred to was of property in Delaware, and that the moneys alleged to have been received, were collected from the Spring Garden, and other fire insurance companies of Philadelphia ; and that, therefore, it appeared that such moneys, or any contracts, either by policies of insurance or in any other form under which such moneys may have been collected, did not pass under the assignment. 3. That it appeared that Whitaker, on the 26th February, 1848, transferred to an assignee all the property in Delaware which passed to him; also that the petitioner at that time had not any interest under the assignment, nor had any till October, 1848. 4. Because, that if his claim was available at all, he could not interfere at so late a period, and in this form of proceeding, but would be referred to the subsequent general assignee. 5. Because he had other remedies. 6. Because, as the assignment to Whitaker operated upon property outside of Pennsylvania, the assignee was not subject to the laws of Pennsylvania. 7. That the Court had no jurisdiction, no inventory having been filed, nor appraisement made, nor bond given by the assiguee, and the assignment being voluntary.
    On July 3, 1852, the petition was dismissed. It was stated in the paper-book that the chief ground of dismissal was that the trustee had not filed an inventory, nor bond, and that therefore the Court had not jurisdiction of the case.
    This appeal was entered and exception was taken to the dismissal of the petition, and the refusal to order Whitaker to settle an account.
    On the part of the appellant it was said that the decision in the Common Pleas was based mainly on the case of Shelby v. Bacon, 10 Howard 56. It was, inter alia, said that if a point had been made in that ease that the trustees should have filed an inventory, it might have been shown that by the 19th section of the Act of 4th May, 1841, relative to an assignment by the Bank of the United States [Acts p. 817), an inventory was dispensed with.
    As to the second point in the demurrer, it was observed that in the petition it is stated that the appellee received the money as trust property, and that by his demurrer he admitted the fact. That he should not obtain all the advantage of a demurrer, which need not he sworn to, and at the same time contest the facts to which the demurrer applies.
    But it was further said that the assignment of real estate lying in Delaware necessarily passed the policies of insurance made upon it in Philadelphia, and in the event of the destruction of the property by fire, the trustee would be entitled to receive the amount of the policies.
    As to the third point of the demurrer, it was said that, the trust being accepted, the trustee could not by assignment divest the property conveyed, nor absolve himself from the responsibilities attending his position: Reference was made to 4 Barr 274, Seal v. Duffy; 1 Harris 592; 1 Parsons 472. Besides, the assignment by Whitaker was subject to a provision in his own favor.

      Scott and Perkins, for the appellee.
   The opinion of the Court was delivered by

Knox, J.

Wm. Whitney presented his petition to the Court of Common Pleas of Philadelphia city and county, for a citation to compel James Whitaker to settle an account as trustee of A. W. Adams & Co. Whitaker demurred to the petition. The Common Pleas sustained the demurrer, and the petition was dismissed by a decree of that Court, from whose decision this appeal was taken.

The petition set’s forth that Andrew W. Adams and Greorge W. Hobson, of the firm of Andrew W. Adams & Co., of the county of Philadelphia, on the 19th day of November, A. D. 1847, executed an assignment to James Whitaker, of all their estate, real, personal, and mixed, situate, lying, and being within the limits of the state of Delaware, in trust, to pay all the creditors of the said firm, without preference or distinction.

That the said James Whitaker then and there accepted the trust, and received on account thereof the sum of $16,899.70 from certain insurance companies, which he still retains in his hands as trusts aforesaid.

That the said trustee never gave bond, filed an inventory or account, but that he executed a certain paper (a copy of which is annexed) on the 26th February, 1848, by which he claimed to be a creditor of Adams & Col to the amount of $6800, which he attempted to appropriate to himself out of the trust fund contrary to law and equity.

After showing the interest of the petitioner as a creditor of Adams k Co., the prayer is for a citation in the usual form.

It is objected to the petition, 1st. That the trustee could not be called upon to account in the Court of Common Pleas, because he had neither given bond nor filed an inventory, and that the remedy was to have him. dismissed from his office as trustee.

2d. That it did not appear that the moneys received from the insurance companies, were embraced in the assignment.

3d. That before the purchase of the judgment by the petitioner, by virtue of which he became interested in the fund, Whitaker had transferred to a general assignee of Adams k Co.

Other objections were taken, but the above-mentioned embrace everything that it is necessary to notice.

The first position relied upon here by the defendant in error, and upon which it is said the 'cause was decided in his favor in the Common Pleas, is that a trustee who has acted as such without complying with'the requisitions of the Act by giving bond and filing an inventory, cannot be compelled to file an account exhibiting the condition of the trust estate. In other words, that the jurisdiction of the Common Pleas depends upon the performance of these statutory duties.

There is no warrant for such a conclusion in our Act of Assembly relating to assignees or trustees, and nothing to justify it in the previous decisions of this Court.

The 7th section of the Act of 14th June, A. D. 1886, “relating to assignees for the benefit of creditors and other trustees,” enacts, that “ It shall be lawful for the Court of Common Pleas of the proper county, on the application of any person interested as co-trustee or co-assignee, to issue a citation to any "assignee or trustee for the benefit of creditors, whether appointed by any voluntary assignment or in pursuance of the laws relating to insolvent debtors and domestic attachments, requiring such assignee or trustee to appear and exhibit under oath or affirmation the accounts of the trust in the said Court, within a certain time to be -named in. such citation.”

Thus it will be seen that power is given to the Common Pleas to require an account from all assignees or trustees for the'benefit of creditors, and not simply those that may have voluntarily placed themselves under its jurisdiction, by giving bond and filing an inventory. The test is whether the person called upon to account is an assignee or trustee for the benefit of creditors, and not whether he has performed his duty as such trustee or assignee.

There would be plausibility in the argument of the defendant in error, if it could first be shown that he was not a trustee or an assignee until he had given bond and filed his inventory; but the law is not so. The assignment takes effect upon the day of its execution and delivery, whereas the inventory may be filed within thirty days thereafter, and the bond is to be given as soon as the inventory and appraisement shall be filed.” In Dallam v. Fitler, 6 W. & Ser. 323, it was held by this Court that a sale of goods by an assignee who had not given bond passed a perfect title.

Upon what principle is it that a trustee, who has received moneys belonging to the'trust without giving security, shall hot be held to the same strictness as one who has complied with the statute in this respect? Can he say that, because he received the money wrongfully, he may rightfully retain it ? True, he may be discharged from the trusts, but suppose those interested prefer to make him account, shall he be permitted to shield himself by his own neglect of duty? He is charged with having received money as a trustee, and required to account fór it. The answer is, “ True, 1 have received it, but, as I gave no security for its faithful application, I am beyond the jurisdiction of the Court and' cannot be compelled to render an account to those interested'in-the fund.”

We are referred to the case of Shelby v. Bacon, 10 Howard 56, as sustaining the decree of the Common Pleas. The réspect which we entertain for the decisions of the Supreme Court of the United States, would induce great caution in determining -similar questions in a different manner from that tribunal; but, in a case like the present, the decision of that Court is not of binding authority with us. The contest here is between citizens of our own state, involving the construction to be given to our own statutes, without reference to any provision of the constitution of the United States or of federal legislation. With this Court rests alike the authority and responsibility, and we cannot rely upon the judgments of others for an exposition which is required at our hands.

In Shelby v. Bacon the complainant filed a bill in the- Circuit Court of the United States, against certain trustees for the benefit of creditors under an assignment made in Pennsylvania, and conveying property lying out of the state. The trustees pleaded that they had filed their accounts in the Common Pleas of Philadelphia, and that these accounts had been settled by that Court. The Supreme Court held that notwithstanding this they were bound also to file their account in the Circuit Court; and among other reasons upon which the decision was based, it is stated that the plea was defective in not setting forth that an inventory had been filed in the Common Pleas and bond given by the assignees; and the judge who delivered the opinion seemed to think that this was necessary to give the Court jurisdiction. As there were other and broader grounds upon which the decision of this ease rests, it is not likely that the question of jurisdiction received from the distinguished judge or from the Court, whose organ he was, that careful and attentive consideration which would doubtless have been bestowed upon it under other circumstances, and which if given would, it is believed, have led to a conclusion entirely different from that heretofore stated.

The Act of 14th June, 1836, relating to “ assignees for the benefit of creditors and other trustees,” was intended more to determine how the jurisdiction of the Court of Common Pleas over trustees should be applied, than to give the jurisdiction itself. This is done by the Act “ relating to the jurisdiction and powers of the Courts,” the 13th section of which gives to the Supreme Court and the several Courts of Common Pleas, the jurisdiction and powers of a Court of Chancery, so far as relates to “ the control, removal, and discharge of trustees, and the appointment of trustees, and the settlement of their accounts.” And in addition thereto, to the Court of Common Pleas for the city and county of Philadelphia, is given the powers of a Court of Chancery, so far as relates to “ the case of trust-moneys and property, and other moneys and property made liable to the control of said Courts;” and fourthly, “ the determination'of rights to property or money claimed by two or more persons, in the hands or possession of a person claiming no right of property therein.”

The revisers of our code, in presenting the Act “relating to assignees for the benefit of creditors and other trustees,” observed, that “ the design of the bill is to declare in what manner the jurisdiction, given to the several Courts of Common Pleas over trustees by the fourth article of the eighteenth section (second clause thirteenth section) of the bill relating to the jurisdiction and powers of the Courts, shall be exercised in the principal cases usually arising.”

"We cannot deny to the Common Pleas jurisdiction so plainly given to it by the legislature, even although the federal courts refuse to admit the conclusiveness of its decrees; nor can we permit a party to oust such jurisdiction by a plain neglect of duty upon his part. What he will not do of his own-option, he must be compelled to perform by the mandate of the Court.

As to the second and third objections: it sufficiently appears by the petition, that the moneys charged to have been received by the assignee arose under the assignment; and it is also clear that the petitioner, by the purchase of the judgment, obtained all the rights of the original creditor. The effect of the assignment from Whitaker to Harrias, the general assignee of Adams & Co., cannot now be determined: if it was a proper disposition of the trust fund, it will protect Whitaker hereafter; but it cannot be interposed to prevent an account. The remaining objections to the prayer of the petitioner are of no avail in this proceeding.

The decree of the Common Pleas dismissing the petition is reversed, and the record is remitted to said Court, with directions to require the assignee, James Whitaker, to file an account according to law.


text:
    Clark versus Eckstein.
    1. When it clearly appears from the facé of a promissory note that it has been altered in a material part, such as its date, it is incumbent on the party producing it to account for the alteration; and if no evidence explaining the alteration is given, it will he error to submit to the jury to determine whether the alteration preceded delivery or otherwise. The onus of proof as to the alteration is upon the party alleging that it was made lawfully.
    2. But if it be doubtful whether the note has been altered, the preliminary question as to whether it has been altered, is for the jury to determine.
    Error to the District Court, Philadelphia.

    This was an action of assumpsit by Charles H. Eckstein and William W. Siegfried, copartners, &c., v. James Clark, on a promissory note of which John Gr. Michener was drawer,' and which was endorsed by James Clark. The note purported to be dated January 22, 1851, and was at four mouths, for $556. The pleas were non assumpsit and payment. Also set-off, with notice of alteration, &c.
    It was stated on the paper-hook on part of the plaintiff in error, that the note' in question bore upon its face the appearance of an alteration from 1850 to 1851, in different ink; some scratching alongside the 0, in 1850, or the 1, in 1851; and a blacker line on the 1; as also a blot of ink in the same spot. Also that the paper at figure 1, by holding up to the light, appeared as if scratched by some instrument.
    The plaintiff’s counsel offered to read the note to the jury, without any evidence explaining the alleged alteration or who made it. The signatures to the note were, however, proved.

      Objection to the reading of the note was made on the part of the defendant, but the note was admitted.
    After the note was read a nonsuit was asked on part of defendant, which was refused. The objection to the note was the absence of evidence to explain the alteration.
    On part of the defendant a witness was called, who said he drew the note; that the note was filled up in 1851; that he did not know of any alteration, &c. He said he took the note to Michener, and he signed it. He further said that on 3d Eebruary he was authorized by Clark to borrow $450 on the note.
    It appeared that the note was negotiated by the witness.
    The person to whom it was passed, was examined, and said that when he received the note it was in the same condition as it was at the trial. He further said that the note passed out of his hands about two months before it was due ; that it was sold by a broker to Eckstein '& Co., regularly.
    Two points were submitted on the part of defendant. First, That the alteration in the date of a note is in a material part, and avoids the same unless done with the consent of the parties. Secondly, That it rested on plaintiffs to explain the alteration.
    Hare, J., charged the jury that an alteration in a material point, after a note is signed, avoids it; but an immaterial alteration as, for instance,'-the removal of a-blot, will not.have that effect. The alteration of a date is a material alteration. If the date of this note was altered after its execution, without the assent of the maker, the plaintiff cannot recover even if. the alteration was for the purpose of rectifying a real or supposed mistake in the instrument. . ....
    As to the' first point, he charged 'in the affirmative. As to the second, he charged that the preliminary question, whether the erasure in the note was an alteration of the date, or a mere erasure of a blot, was for the jury; but that if it were an alteration it avoided the note, unless shown by the evidence to have been made anterior to or at the time of the execution of the instrument, or with defendant’s consent if subsequent to such execution.
    Yerdict was rendered for the plaintiff.
    It was assigned for error that the Court erred in permitting the note to go to the jury without proof by plaintiff as to the alteration. 2. In refusing a nonsuit. 3. In submitting to the jury the question whether, the alteration was an alteration of the date, or erasure of a blot.
    On part of the plaintiff in error, it was contended that a promissory note of which the date has been altered without the consent of the defendant, the endorser, is thereby rendered void, although in the hands of an innocent endorsee: 7 Ser. & R. 508,
      Stephens v. Graham. The onus of proving that an alteration in a material part was lawfully made, is on the holder. When the place of payment is in a different handwriting, there is a presumption of alteration: 7 Harris 119, Miller v. Gilleland.

      Clay and Jones, for defendant in error.
    It was said that the note was dated January 22, 1851, and was made to raise money for the purpose of carrying on joint speculations of the maker and endorser, and was negotiated by an agent.
    Upon the face of the note at the last figure of the date, there was a blot of ink and an erasure. The note was filled up by a broker, who showed it to the person to whom he afterwards, passed it, before the latter agreed to take it; that when negotiated to him it was in the same condition, as to the alleged erasure, as when it was offered in evidence.
    On the part of the plaintiffs it was alleged that there was no material alteration of the note, and therefore, that there was no error in refusing the nonsuit or permitting the note to go to the jury. That the preliminary question was whether or not the note .had been altered, not whether it had been materially altered; and the jury were instructed that if they found that an alteration had been made, they were to say when it was made ; and, if after execution, whether it was made with the consent of the. defendant or not.
    It was further said that the note in suit was made for the mutual accommodation of the maker and endorser, and therefore they were both principals, and the note had no effect before it was negotiated: Chitty on Bills 167-8 ; and that there was sufficient in the circumstances of the case to lead to the presumption that the erasure, whatever it was, was made with the knowledge or consent of the defendant. If the note had been originally dated in 1850, unless the date had been changed to 1851, the note would have been unavailable for the purpose for which it was made, as it would have appeared on its face to be over-due when offered for sale or discount. Before negotiation the note had no legal effect; and as the alteration, if made, was before negotiation, the legal effect was not disturbed by the alteration.
   The opinion of the Court was delivered by

Knox, J.

Where a promissory note clearly shows upon its face that it has been altered in some material part, such as its date, it is incumbent upon the party producing it to account for the alteration ; and if no explanatory evidence is given, it would be error in the Court to refer it to the jury as matter . of fact to determine whether the alteration preceded delivery or otherwise. The onus in such case, is upon the party alleging the legality of the instrument.

But the preliminary question whether there has b.een an alteration, if doubtful, is for the jury. In the present ease, the last figure in the date of the note upon which the suit was brought is blottéd, and there appears at its side, an erasure, but whether it was the date or the blot that was attempted to be removed was properly left to the jury as a question of fact.

Judgment affirmed.


author: Lowrie, J.

text:
    Quain's Appeal.
    1. A ground-rent covenant does not survive against executors or administrators except as to the rents which accrued in the lifetime of the decedent; the rents which accrued subsequent to the death of the covenantor are not payable out of his personal estate.
    2. Though this Court entertained serious doubts of the proprietyof a decree of the Orphans' Court upon facts submitted in a report of an auditor, yet as it was not clear that a mistake was made the decree was not reversed.
    Appeal from the decree of the Orphans’ Court of the county of Philadelphia.

    Andrew M. Quain, the decedent, died in August, 1850, without issue, leaving a widow and two brothers, viz.: Margaret Quain the appellant, William S. and Robert M. Quain. Letters of administration were granted to the widow and her brothers, who filed their account thereof. The account was referred to an auditor to adjust, and make distribution of the balance. Before the auditor, a claim for $187.50 was presented on behalf of Charles Norris and others, trustees, for 30 months’ arrears of ground-rent on a lot conveyed by the said trustees to the said Andrew M. Quain, of which but 12 months’ rent was due and in arrear at the time of his decease. No judgment had been obtained for the same. In the ground-rent deed, Quain covenanted for himself, his heirs, executors, and administrators, to pay a ground-rent of $75 per annum, half-yearly on 1st January and July. At the time of his death, two half-yearly payments were due, and three other half-yearly payments became due before distribution was decreed. The claim was resisted by the widow, on the ground that it was no lien on the fund for distribution, which was derived exclusively from personalty, and that they should first resort to the land charged with it; and that, as it was resisted, the auditor could not take cognisance of it, the estate being solvent. The auditor disallowed the claim.
    In making distribution the auditor awarded one-half of the balance to the widow, one-fourth to Robert M. Quain, one of the brothers, and the remaining fourth, which would have been the share of William S. Quain, was claimed by him, and also by the widow. The widow claimed the share of William upon the ground that immediately after the decease of Andrew, William gave up to her all his right to any part of the estate, asking only a gun which had belonged to the decedent; -which gun was taken by her and given to him. Witnesses were produced before the auditor upon the subject, and the auditor decided that the .share had been relinquished by William, and given up to the widow, and he awarded it to her.
    To the auditor’s report in both these matters exceptions were filed by the respective parties, and were afterwards argued before the Orphans’ Court; which Court reversed the decision of the auditor and decreed in favor of the Norris claim, and directed the pro rata share of William S. Quain in the estate to be paid to him.
    From the decree Margaret Quain, the widow, appealed.
    Exception was taken, 1st, To the decree in favor of the Norris claim for ground-rent; and 2d, To the decree in'favor of William S. Quain.

      Hamilton, for appellant.
    As to the claim for ground-rent, it was contended that it is only in the case of insolvent estates that an auditor is’ authorized to decide upon disputed claims.
    But it was further contended that by law the heir takes the land of the ancestor cum onere: 2 Rawle 223, McCoy v. Scott. Arrears of ground-rent are an encumbrance: 5 Bin. 553, Gordon v. Curry. Of the rent, $75 was in arrear at the death of Quain ; the balance of $112.50 claimed, became payablé afterwards. If this balance is to be paid out of the personal estate, the payment would, in a great measure, be adverse to the interest of the widow and in favor of the heir, and the lot was unproductive. If the lot had been subject to a mortgage the heirs could not have claimed to be relieved out of the personalty: 9 Ser. & R. 72, Keyzey’s Case. It was said that the same principle was applicable to an estate subject to ground-rent'; and although, generally, the personalty is the primary fund for the payment of debts, yet, in a case like this, equity requires that the land be first resorted to.
    As to the second exception, it was said that the Court heard no additional testimony, but acted upon the notes of testimony reported by the auditor, and set aside that part of his report. The report of an auditor adjudicating upon facts, ought not to be set aside except for plain mistake, which it is incumbent on the exceptant to establish by affirmative' evidence where it is not apparent in the report: 5 Rawle 323, Harland’s Accounts; 7 Harris 221, Mengas’ Appeal.

      G. M. Wharton, for Norris.
    It is not necessary that a claim submitted to añ auditor should be sustained by a judgment for it: 13 Ser. & R. 299. The solvency of the estate was no proper reason for hot paying the claim, but rather the contrary. The ground-rent was a pérsonal debt of Quain, and also was a charge upon the lot, and the personal estate was the primary fund to pay the debt: Sec. 19 of Act of 16th June, 1836, and 35th sec. of Act of 24th Eebruary, 1834.
    Where a lien on real estate is given as security for a debt, and the charge on the land is collateral to the claim, the creditor is not debarred from claiming out of the personal estate: 2 Barr 304, Shunk’s Appeal; 5 Harris 416, Kittera’s Estate; 10 Harris 441, Morris v. Olwine. As to' the rent due in the lifetime of Quain, it was said that no question could pr.opérly be made in regard to such; and it was contended that the' arrears accruing after his death, were payable also: 3 Pa. Rep. 265.

      Ludlow, for the brothers of the decedent.
    There was no assignment by William S. Quain to the widow; the evidence consisted of conversations which occurred between him and the widow, which it was said were of a character too general to effect a transfer of the claim. There was no sufficient consideration for a transfer, or evidence that the, gun was accepted in satisfaction of the interest of William in the estate: 4 Watts 128.
   The opinion of the Court was delivered by

Lowrie, J.

In the distribution of the estate of Andrew M. Quain, deceased, the Orphans’ Court allowed a claim for thirty months’ ground-rent of a lot granted to the decedent on perpetual lease, and which, on his death, descended to his heirs. One year of this rent became due in his lifetime, and was properly charged. The question relating to that which accrued afterwards is not so plain. ,

We are of opinion that the principle of Torr’s Estate, 2 Rawle 252, and also the principle of Callahan v. Dickinson, 19 State R. 227, exclude this part of the claim. . Does a ground-rent covenant survive against, executors and administrators ? In its usual form it binds heirs, executors, administrators, and assigns: but still this may be satisfied, as to executors and administrators, if they pay the rent which accrued in the decedent’s lifetime.

It is a perpetual covenant, and it is totally impracticable to require it to be performed by executors and administrators; for their office, is not perpetual. If we retain the perpetuity of the covenant as against them, even with the restriction that they are to be liable only when the resort to the land is ineffectual, we still prevent all distribution of the- estate in their hands;, and, as all the lands of the decedent are assets for the payment of- debts, we constructively charge the rent of a single lot upon all his lands.

Nor will it do to hold them liable until the final settlement of the estate. If that suggestion means until all other matters are ready to be settled, then it takes away at once the character of perpetuity belonging to the covenant, and makes its duration, as against the personal estate, to depend upon the accident of the administrator’s diligence, or of the involved or simple nature of the estate. If it means until the final settlement of the whole estate, then this perpetual covenant postpones it for ever. This cannot be ; for the law intends the office of executor or administrator to terminate as soon as possible: it cannot be prolonged on account of perpetual covenants.

Such a prolongation, or such a liability, could not have been contemplated at the creation of the ground-rent. The grantor of the land cannot be presumed to have then placed any value on such a covenant; for the personal covenant of the original grantee is as nothing in a series of tenants lasting for ever. The real security is the covenant running with the land and encumbering it; and this is the essential reliance of the owner of the rent. It is an absolute obligation, as against the administrators, or it does not bind them at all. Suppose it absolute; then the duty must be fully performed by perpetual payment, or else it must be discharged by a satisfaction or commutation ; and in this latter case the rent would be discharged and the heir released, a result which is certainly unintended. It is a covenant payable, in the contemplation of the parties, out of the profits of the land; and it would be entirely unreasonable that the law should hold the administrator for the rent when it gives the land to the heir.

As to the fact of the alleged transfer of W. S. Quain’s share to the widow we have very serious doubts, but we do not see our way clear enough to reverse the decision of the Orphans’ Court in this respect.

Decree.—This cause came on to be heard at the last December Term, on an appeal by Margaret Quain from the decree of the Orphans’ Court of Philadelphia county, on the distribution of the estate of Andrew M. Quain, deceased, and was argued by counsel: And now, on full consideration thereof, it is ordered, adjudged, and decreed, that the decree of the said Orphans’ Court be reversed, annulled, and held for nought, and this Court, now proceeding to make such decree in the said cause as the said Orphans’ Court ought to have made, do order, adjudge, and decree, that the sum of seventy-five dollars be paid by the administrators of the said Andrew M. Quain, deceased, unto Charles Norris, Samuel Norris, and Isaac Norris, trustees, in full for ground-rent due by the intestate at his death, and that out of the balance in the hands of the said administrators, being $790.23, shall first be paid the costs of this proceeding, and that then the remainder shall be distributed so that Margaret Quain, the intestate’s widow, shall have one-half thereof, and that W. S. Quain and Robert M. Quain, his brothers, shall each have one-fourth thereof; and the cause is remanded to the said Orphans’ Court in order that this decree may be carried into effect.


text:
    Dent’s Appeal—Adlum’s Estate.
    1. By the 6th section of the Act of 15th March, 1832, relating to registers, no administration granted out of this Commonwealth confers upon the person the authorities of an administrator under letters 'granted within this state.
    2. Although the personal property of the decedent is distributable according to the law of the domicil, yet comity does not require that the distribution be made in the country of the domicil; but, on the contrary, the distribution of the fund may be made by the tribunals of the country' under whose authority it was collected; and such distribution need not be confined to creditors, but, in the absence of creditors, may embrace legatees, or next of kin entitled to portions of the fund, and presenting their claims.
    3. The Orphans' Court of the county in this Commonwealth wherein letters of administration on the estate of one whose domicil at death was in the District of Columbia, was not bound to order the assets collected in this state to be transmitted to the administrator of the domicil by whom the fund in dispute was claimed, but had the power to direct distribution not only amongst creditors of the decedent, but, in their absence, to legatees or next of kin entitled to distribution and submitting their claims.
    4. The claims of citizens of Pennsylvania are not alone to be protected by such Court, but the claims of citizens of either of the other states or territories may be submitted and allowed, and the residuum alone, after final account, is to be transmitted to the administrator of the domicil.
    5. Such distribution is not a question of jurisdiction but of judicial discretion.

    6. The expenses of, collecting the fund depend on the local law and usages, and should be settled by the Court under whose authority they were incurred.
    7. If the administrator of the domicil, acting as agent of the local administrator, has rendered services for which he is entitled to compensation, or, before the local administrator was appointed the former has rendered services which are an equitable charge upon the fund in Court, he may be permitted to present his claim to the local administrator for adjustment and allowance.
    Appeal from the decree of the Orphans’ Court, Philadelphia.

    This was an appeal by II. II. Dent from the decree of the Orphans’ Court directing distribution of money in the hands of P. P. Morris, administrator of the estate of John Adlum, deceased, under a grant of letters of administration in the county of Philadelphia.
    John Adlum, the decedent, a resident of the District of Columbia, died therein in the year 1836. In his will he empowered his executors to dispose of all his real estate wheresoever situated, and after giving some legacies and appointing executors, he directed, that after payment of his debts, his estate real and personal be divided and distributed between his wife and his two daughters, Margaret C. Barber and Ann M. Adlum, according to the intestate laws of the District of Columbia.

    His family, at his decease, consisted of his wife Margaret, his daughter Margaret, married to Cornelius Barber, and his daughter Anna Maria, afterwards married to Henry H. Dent, the appellant, all inhabitants and residents in the District of Columbia.
    The will was admitted to probate in March, 1836, and the executrix and executor having renounced, letters of administration with the will annexed were granted in the District of Columbia, about the same date, to the said Henry H. Dent.
    After the estate in the District was disposed of, proceedings were had in Pennsylvania in support of a claim stated to have arisen out of agreements for the purchase of lands in this state. Proceedings were instituted in the Supreme Court to July Term, 1849, by bill in equity entitled Fox et al. v. Ingersoll et ah An administrator in Pennsylvania being necessary, letters of administration de bonis non cum test. an. were granted to P. P. Morris. It appeared that P. P. Morris had been applied to by Mr. Dent in the early part of 1849, and before any proceedings in equity were instituted, to act as assistant counsel; and that in the fall of 1849, he was written to by Dent, to ascertain whether he would act as administrator, which, with the assent of the other parties, he agreed to do.
    On the 19th August, 1850, the Supreme Court, under agreement, referred the bill in equity, answer, and other documents, to a master to report, among other things, a partition of .the lands, a division of the contracts and other securities, and an account and division of the moneys under the agreements and purchases recited in the bill, On the 8th May, 1851, the Court appointed a receiver, to receive conveyances of certain lands by transfer of contracts of the estate of Ernst Walterstoff, to be held subject to further order and decree. On 10th May, 1851, a decree was entered, ascertaining $90,566. 90 to be due to the estate of John Adlum by the estate of Ernst Walterstoff, and a master was appointed to report what proceedings might be necessary to satisfy the debt out of the estate conveyed to the receiver. -It was from this debt that the funds in the hands of the Pennsylvania administrator, in contest, arose. On 10th April, 1852, the receiver was ordered to make public sale, at the Exchange, of the lands and contracts conveyed and transferred to him from the estate of Walterstoff, under the direction of the master; and it was provided, that any party on the record shall be allowed to bid on his own account for any part of the property, &e. Dent became a purchaser to an amount exceeding $26,000; and it was afterwards ordered that his receipt, as administrator of the domicil and as the representative of the estate of his late wife, to an amount exceeding $10,000 be taken, and that he pay the balance in cash.
    During the course of the proceedings in equity, P. P. Morris, as administrator, received large sums of money, and rendered accounts to the Orphans’ Court. In distributing the funds to those entitled to receive, he obtained from Dent his receipts importing that the moneys paid to the other distributees had been paid to Dent, and the distributees gave to Dent, as administrator of the domicil, separate receipts. The fund in question in this proceeding, viz., about $25,000, was left in the hands of P. P. Morris. Dent claimed the whole of it as administrator of the domicil, to be applied by him first, especially to pay his own commissions; and secondly, to the respective legatees under the will of the decedent, all of whom, it was said, resided in the said District. There were no other creditors except himself, claiming as administrator.
    The other distributees claimed to have their respective shares paid to them by the Pennsylvania administrator, without the intervention of the administrator of the domicil, and free from claims by him for commissions.
    J. A. Clay, of Philadelphia, received letters of administration in Pennsylvania, on the estate of Margaret Adlum, the widow of the decedent, and was a claimant; and C. Barber, in right of his wife Margaret, a daughter of the decedent, was also a claimant.
    An auditor was appointed, who reported a balance for distribution, and decided in favor of its payment to Dent, as administrator of the domicil. To such report exceptions were filed.
    Allison, J., in his opinion, remarked that he did not consider the opinion in the case of Harvey v. Richards, 1 Mason 405, as an authority in favor of payment of the balance to the administrator of the domicil. He referred to the opinion of Judge Story on page 413, that whether the Court here ought to decree distribution or remit the property to the administrator of the domicil was a matter not of jurisdiction, but of judicial discretion, depending on the particular circumstances of each case; and after a review of English and American cases, pronounced his judgment to be, that a Court of Equity here has authority to decree distribution in cases like the present, according to the law of the domicil, upon the application of legatees or next of kin, or other competent parties. Allison, J., in support of the same view, referred to the case of Mothland v. Wiseman, 3 Pa. Rep. 187. He observed that the distributees, for whom claims were preferred, were entitled to the larger part of the fund for distribution, and that their selection of this forum was equivalent to being resident devisees. He remarked that other distributions had taken place here, under which the distributees had taken; that Dent had already received a large portion of his dividend by a credit on the purchase of real estate purchased by him; and that he and C. Barber had agreed not to take out letters of administration in Pennsylvania, and requested administration to be taken in this state. It was intimated that the effect of this agreement would be to prevent the property from being received by either of the parties to the agreement, and amounted to an agreement that distribution be had in Pennsylvania'.
    He sustained the exception and directed distribution amongst the distributees, viz., to J. A. Clay, administrator of the estate of Margaret Adlum, the widow, above $13,000; to Cornelius Baker, in right of his wife Margaret, above $8000; and to PI. H. Dent, in right of his wife, above $3000.

    From such decree appeal was taken by H. H. Dent.
    Afterwards, C. Barber having died, his wife Margaret, residing in the District of Columbia (a daughter of John Adlum), as executrix of his will, and also under grant of letters on his estate obtained in Pennsylvania, was a claimant.

      Dallas, for the appellant.
    There were no charges or expenses in Pennsylvania, to which the fund was liable. There were no creditors, resident in Pennsylvania or elsewhere, nor any legatees' or next of kin resident in this state claiming the fund or any part of it, but the legatees and next of kin claiming were resident in the district where testator resided, and where it was claimed that the fund be sent. It is for the protection and assistance of resident citizens only that Courts of Equity have assumed and exercised the power of distributing the personal assets of a foreign decedent, collected by an administrator within their jurisdiction, on payment of his debts. The power of the Court to order distribution to be made here was not questioned, if the circumstances of the case rendered it just and proper: Mason 381; 1 Story’s Eq. 589; also, Story’s Con. of Laws 513.
    It was, however, contended that the circumstances to justify such order of distribution, must be such as to involve danger of loss by resident creditors, or of great and unnecessary inconvenience by legatees or next of kin, and they must not be such as to exclude claims existing at the domicil. Reference was made to the case of Harvey v. Richards, 1 Mason 413; 3 Pa. Rep. 185; 3 Rawle 312, Miller’s Estate; 4 Harris 63, Short’s Estate; 7 Harris 476, Stokeley’s Estate. It was said that equities existed in favor of the administrator of the domicil, which rendered it proper to transmit to him the fund in question ; amongst others, that he had entered his claim to commissions in the tribunal in the District of Columbia, and which, it was said, was the proper one to decide upon them, and that he had founded that claim on the written receipts of the legatees, and had limited it to the amount allowed by the law and usage of that forum ; and that he should not be deprived of it. Reference was made to the opinion of Gibson, C. J., in Miller’s Estate, 3 Rawle 320.

      Tilghman, for appellees.
    Adlum had been dead nearly fifteen years. His estate at the place of his domicil had been settled, and all his debts paid.' The only assets unadministered, with the exception of a balance due to th.e estate by the administrator of the domicil, exceeding $1700, consisted of a claim upon persons and property in Pennsylvania, viz., the trustee and estate of William Bingham, deceased, and others. In less than sixteen months after administration in Pennsylvania, the claim resulted in a decree of the Supreme Court in Equity, under which the estate afterwards received above $300,000. Three distributions of portions of the estate were made in Pennsylvania, and another partial one made to two of. the distributees. The administrator of the domicil insists on receiving the fund, that he may in the Court of the domicil assert a claim to a commission of ten per cent, in addition to the allowance already made to the Pennsylvania administrator. It was said that the fund was not required at the place of the domicil for any other purpose ; and that there was no dispute as to the shares of the distributees, or anything else involving questions peculiar to the law of the domicil.
    The authorities referred to on the part of the appellant, apply to cases where there are creditors of the decedent at the place of domicil, or distributees there who are not suitors ’in the Court of the auxiliary administrator, and who desire distribution at the place of domicil. The mere fact that none of the distributees are resident at the place of the auxiliary administration, is not of itself a sufficient reason for remitting the fund. Reference was made to the opinion of Judge Story in Harvey v. Richards, 1 Mason 381, that whether the Court here ought to decree distribution or remit the property, was a matter not of jurisdiction, but of judicial discretion,' depending on the circumstances of each case.
    It was submitted that the circumstance that the administration in Pennsylvania must be governed by the law of the domicil, did not render it, for all purposes, a subordinate administration. The administration of the domicil was almost functus officio when administration wa.s granted in Pennsylvania. The property there was inconsiderable in comparison with the property claimed in Pennsylvania. Reference was made to the opinion of Story, J., in the case of Harvey v. Richards, before cited.
   The opinion of the Court was delivered by

Lewis, J.

This is a contest between Mr. Dent, the administrator of the domicil, and the persons entitled to the fund as distributees. The fund in Court seems to have been raised from the sales of real estate in Pennsylvania, and to have been collected by Mr. Morris, to whom letters of administration were granted here. By the Act of 15th March, 1832, it is provided that “where the decedent had no residence in this Commonwealth, letters of, administration are to be granted by the register of the county where the principal part of the goods and estate of the decedent shall he; and no letters testamentary or of administration, or otherwise, purporting to authorize any person to intermeddle with the estate of a decedent, which may be granted out of this Commonwealth, shall confer upon such person any of the powers and authorities possessed by an executor or administrator under letters granted within this state.” The domicil of the decedent was in the District of Columbia, and Mr. Dent may therefore be designated as the home administrator. As the assets arise from real estate in this Commonwealth, and were collected by Mr. Morris under letters granted according to our own laws, the latter may be called the foreign administrator. They are occasionally described by different terms — the administrator of the domicil is sometimes called the principal, and sometimes the primary administrator— and the administrator of the situs is frequently called the auxiliary and often the ancillary administrator. But it does not matter what terms are used to designate the distinction in fact, as to the objects of the different administrations, so that we guard ourselves against the conclusion that there is a distinction in law as to the rights of the parties entitled as distributees. It was truly said by the judge who delivered the opinion of the Court in Harvey v. Richards, 1 Mason R. 381, that “ there is no magic in words ; and that each of these administrations may properly be considered as a principal one, with reference to the limits of its exclusive authority ; and each might, under circumstances, justly be deemed an auxiliary administration.” Although the right of succession to personal estate of an intestate is to be regulated by the law of the country in which he was domiciled at the time of his death, it is fully settled that the administration of the estate must be in the country in which possession of it is taken and held under lawful authority: 1 Williams’ Ex. 356; 8 Cl. & Fin. 1; 1 Dowl. & Ryl. 35; 1 Vern. 397; Story’s Confl. of Laws, ch. 13, s. 518. The administrator, under a foreign grant, has a right to hold the assets received under it against the home administrator, even after they have been remitted to this country: 1 Williams’ Ex. 357; 2 Ib. 1415. And though the right of the home executor or administrator to an ancillary probate or grant of administration in a foreign country is usually admitted by the comity of nations as a matter of course, yet this new administration is made subservient to the rights of creditors, and other claimants resident within the country where it is granted; and the residuum is transmissible to the country of the original administration, only when a final account has been settled in the proper tribunal where the new administration has been granted, upon the equitable principles adopted by its own law, in the application and distribution of the assets found within its jurisdiction: Story’s Confl. L. ch. 13, s. 513; 2 Williams’ Ex. 1415. That the foreign administration is subservient to the rights of other claimants as well as creditors, resident within the foreign jurisdiction, is apparent from what has already been said; but the same principle is distinctly affirmed by this Court in Mothland v. Wireman, 3 Pa. Rep. 188. It was there held, after a careful review of the authorities, that “the administrator here, although admitted to be but an auxiliary administrator, is bound to remit the assets to the administrator of the domicil, only in case there are no domestic claimants in the character of creditors, legatees, or next of Jem; but that where these appear, the assets are to be retained for administration: 3 Pa. Rep. 188. According to the case last cited, the absence or presence of domestic claimants upon the fund determines the action of the Court under the comity of nations. But it must be remembered that this is not a question of jurisdiction, but merely one of judicial discretion. The right to retain the fund, and the jurisdiction to distribute it among the parties entitled, undoubtedly exist in the tribunals of the country under whose authority it was collected. This principle was acknowledged in Harvey v. Richards, 1 Mas. R. 408, and it was correctly held, in that case, that although “the property was to be distributed according to the lex domicilii, national comity did not require that the distribution should be made abroad.” Erom these authorities it is clear that the Orphans’ Court had a right to exercise its discretion in deciding whether it would distribute the fund itself, among the parties entitled to it, or remit it to the forum of domicil for the purpose. And the question before us is, whether there has been such an unwise exercise of that discretion as to justify a Court of review in reversing the decree.

It is conceded that where there are domestic claimants upon the fund, their rights must be protected here, and they must not be put to the expense or dangers of following it into a foreign jurisdiction. But who are domestic claimants ? Is residence within the state necessary to give a suitor in our Courts a right to be heard, and to have justice done to him according to law without delay? If a citizen of a sister state of the Union, or an inhabitant of a district or territory subject to the same general government to which we all owe allegiance, comes into our Courts asking for justice, is he to he treated as an alien ? In Dawes v. Head, 3 Pick. 145, this point was mooted by Chief Justice Parker, but not decided. It was admitted, however, by that learned jurist that “ where the parties interested seek their remedy here, i’t might be within the legal discretion of the Court here to cause a distribution, or to remit, according to the circumstances and condition of the estate:” 3 Pick. 144. “Under the English bankrupt system, foreigners as well as subjects may prove their debts and share in the distribution. Without doubt, in other foreign countries, where there is a cessio bonorum, or other process relating to bankrupts’ estates, the same just principle is adopted. It was so under our (old) bankrupt law while that was in force, and no reason can be sirggested why so honest and just a principle should not be applied in the case of insolvent estates of deceased persons:” 3 Pick. 146. If foreign creditors are to be treated as domestic claimants when they ask for justice in our Courts, there is no just reason why legatees and next of kin should not be regarded in the same light. It is because the country to which they belong owes them protection, that national comity requires that the tribunals of other countries should not unnecessarily and wantonly force them to seek for justice in distant lands, where it may be inconvenient and expensive to establish their rights. But this reason has no place where, from other causes, they are induced to appeal to those tribunals as the best means of securing their claims. Where this is the case, to send them back to the forum of domicil would be to delay the administration of justice contrary to the constitution, and would be a most singular and unjust applicatioii of the principle of comity which is supposed to govern questions of this kind.

In the case before us, there are no creditors of the decedent remaining unsatisfied. Two-thirds of the distributees demand distribution here, and object to the delay and expense of remitting the fund to the administrator of the domicil. No one objects to the distribution here except Mr. Dent, the administrator of the domicil, and the only reason which he urges .seems to be that he wishes to charge the fund with the expenses of collecting and distributing it. With regard to the expenses of collecting, they depend upon the local law and usages, and are regularly to be settled by the Court, under whose authority they were incurred: Jennison v. Hapgood, 10 Pick. 101. Upon inspection of the account of the administrator here, it would seem that these expenses have already been allowed. If so, it would be unjust to allow a double charge for the same services. The expenses of distribution have not been incurred by Mr. Dent, and an administrator can have no just claim to the possession of a fund merely for the purpose of promoting his own interest. He is a trustee for others, and whenever 'the fund is placed in his hands, it is for a purpose beneficial, or supposed to be beneficial, to the parties entitled to it. To place it in bis hands merely for the purpose of enabling him to charge commissions upon the subsequent distribution of it, would be contrary to the whole object of the trust. His commissions are but an incident to the performance of a service. If he is not required to perform the duty of distribution, lie can have no claim whatever to compensation for that service. He cannot settle an account for the mere purpose of charging the estate with a debt due to himself: Shenk’s Administration Account, 5 Watts 84. Nor can be do so for the purpose of charging it with the expenses of preparing to administer a will, before a contest arose as to its validity: Royer’s Appeal, 1 Harris 569. There is nothing, therefore, in the reasons assigned by him which ought to have influenced the Court, in its discretion, to remit the fund to him for distribution, while the reasons assigned by the Court for refusing to do so sufficiently justify its decree.

It may be possible that Mr. Dent, in the capacity of agent, under the local administrator, has rendered services for which be has not been compensated. It may also be possible that he has rendered services before that administrator was appointed, which are equitable charges upon the fund in Court. Those claims, if they exist, should regularly have been presented to the local administrator for adjustment; but they may have been omitted by Mr. Dent, through a misapprehension of Ms rights. If so, this Court, on application within ten days for the purpose, will appoint an auditor to ascertain the amount, if any, which should be allowed for these services. The decree of the Orphans’ Court is confirmed, unless application for an auditor he made within ten days.

Decree confirmed, nisi, &c.