author: Black, C. J.

text:
    McCaskey versus Graff.
    1. Where a person has been guilty of actual fraud in the purchase of real estate at sheriff’s sale, he is not entitled to be reimbursed what he paid for it.
    2. It is not a valid objection to the competency of a witness that he is a creditor of one who is a surety for a debt which the debtor’s estate would be able to pay in the event of a recovery in the suit trying; the interest is too remote.
    3. Where declarations of the defendant are given in evidence to show that a fraud was practised by him in connexion with another and for their joint benefit, the declarations of such second person, made either before or after the sale, concerning the purchase, its purpose and object, are admissible against the defendant in order to show the fraud committed.
    4. Where it appears from the bill of exceptions that a witness was rejected on account of interest, it will be presumed that the rejection was proper where the contrary does not appear from the record.
    Error to the Common Pleas of Lancaster county.

    This was an action of ejectment, to November Term, 1852, by David Graff, assignee of John M. Downey, v. William McCaskey and Adam Ellet. The defendants in some way held under Robert A. Evans.
    In December, 1851, Robert A. Evans purchased at sheriff’s sale a tract of 88 acres of land in Leacock township, which had been duly levied on as the property of John M. Downey, for the sum of $4450; and, on the 27th day of May, 1852, having paid the whole of the consideration-money, he received the sheriff’s deed therefor, and afterwards put the defendants, McCaskey and Ellet, into possession.
    This action of ejectment was brought by the voluntary assignee of Downey, for the benefit of his creditors, to recover the said land, alleging that the sheriff’s deed to Evans was void, the purchase by him having been made at an under value, in consequence of fraudulent misrepresentations made by him at the sale which induced other persons not to bid.
    To sustain the allegation of actual fraud, Job P. Barefoot was called on part of the plaintiff. He was objected to on part of the defendants on the ground of interest. There was discrepancy in the statement, by the adverse counsel, as to the facts, but they were probably as follows: Barefoot, the proposed witness, had a judgment against Jane Downey and H. A. Hestin for $1042. A previous judgment had been obtained in favor of J. J. Morrison against John M. Downey and Jane Downey, for $243.19, in which Jane Downey was the surety of John. It was before the judgment of Barefoot. Either the real estate of Jane had been sold, on a judgment for a debt of John, or she had left but a small piece of land containing about four acres. On an execution on Morrison’s judgment, the land in dispute had been sold, but the proceeds did not reach to pay Morrison’s judgment. It was however alleged, that if the plaintiff in this suit recovered, the judgment of Morrison would be paid out of the property of John, and the real estate of Jane Downey would be released from Morrison’s judgment ; or, that she might be entitled to subrogation under the judgment of Morrison against the property of John Downey.
    Barefoot was admitted, and exception was taken. This was the first bill of exceptions.
    Barefoot testified that R. A. Evans said, at the place of sale, after the conditions of sale had been read, that Tie and his brother had agreed to buy the property for the old lady (Mrs. Downey) and daughters — that he said, “ we are to buy it for them, and they are to secure me.” It appears he held a judgment binding the property.
    Barefoot said that he did not bid, because, when he came to the place of sale, he understood that the property was to be purchased by Evans for the family.
    The second bill of exceptions was taken to the-admission of the testimony of Henry Eckert, offered “ to prove that Walter Evans said that he and his - brother, R. A. Evans, had bought the property together; to be followed by other evidence of what Walter Evans said with regard to the purpose for which it was purchased.” This testimony was objected to on part of the defendants, was admitted by the Court, and exception was taken.
    The third bill of exceptions was to the admission of the testimony of James C. Dunlap, by whom the plaintiff offered to prove “ that the witness saw Walter Evans before the sale, and that he, Walter Evans, told witness that Robert Evans intended to buy the property for the family of John M. Downey: and that in consequence thereof witness did not go to the sale and bid, as he intended.” This testimony was objected to on part of defendants ; was admitted by the Court, and exception was taken.
    The fourth bill of exceptions was to the rejection of Walter Evans as a witness for defendant. It was stated on the paper-book that he was rejected by the Court as interested, on the testimony of Henry Eckert and James C. Dunlap, mentioned in the previous bills of exceptions, as to conversations with Walter Evans. In the bill of exceptions it was stated that he was “objected to by plaintiff.” “Disallowed on account of interest.” Exception was taken to his rejection.
    It was proved on the trial that Robert A. Evans paid to the sheriff the whole consideration of $4450: that the money was paid into Court and distributed by an auditor among the lien creditors of John M. Downey in the order of their liens. On part of defendants it was contended that if the jury found for the plaintiff it ought to be on condition that he reimbursed to R. A. Evans the amount so paid in relief of the trust.
    The Court, however, charged the jury that should they come to the conclusion that actual fraud had been committed, their verdict should be for the plaintiff without annexing any condition. ,.
    June 11, 1853, verdict for plaintiff.
    Exception was taken to the charge; and the ruling of the Court, as complained of in the several bills of exception, was assigned for error.

      F. and T. F. Franklin, for plaintiff in error.
    In relation to the admission of Barefoot, it was said that Barefoot’s judgment against Jane Downey was a lien on' a small tract of about four acres of land belonging to Jane. That Morrison’s previous judgment bound it — and that if a recovery were had in the suit trying, Morrison’s judgment would be satisfied out of the property of John M. Downey, and thus Jane’s property would be relieved, and might, to the extent of its price, be applied to Barefoot’s judgment, and thus Barefoot was interested. It was said in the oral argument that if Morrison’s judgment were paid out of the land, Barefoot, in right of Jane Downey, would be entitled to subrogation under the judgment of Morrison against John Downey. Cited 6 Barr 398; 10 Id. 167; Greenleaf’s Ev. 390-392.
    As to the 2d and 3d exceptions, it was said Walter Evans was not a party, and the evidence was hearsay.
    As to the 4th was cited 7 Harris 321, Walker v. Coursin.
    As to the 5th exception, it was contended that it would be against equity to require a forfeiture of the amount paid for the land. Cited Francis’ Maxims in Equity 4; 2 Atk. 133; Id. 296; 2 Ves. Sen. 516; 2 Cowen 138; 1 Woodbury & Minot 195; 11 Wheaton 103; Id. 126; 6 B. Monroe 120; 1 Merivale 643.
    Fordney, Frazer, and Stevens, with whom was Fllmaker, for defendant in error, plaintiff below.
    It was stated that Jane Downey had no real estate on which Barefoot’s judgment was a lien. Barefoot’s judgment was amongst the last of the judgments against John M. Downey. But if it were reached and paid by a resale, and Jane Downey, if she were a surety, were subrogated, Barefoot might not have any control of the fund. He had no lien on it. She might or might not pay it to him; or her right of subrogation might be attached by another creditor.
    Evidence was given of combination between the two Evans’s: 8 Barr 64.
    As to the last point as to forfeiture, it was said that the cases cited on part of plaintiff in error, were cases of legal and not of actual fraud. If actual fraud exists, the sale is void — has no existence as a means of conferring title: Gilbert v. Hoffman, 2 Watts 66; 4 Johns. 598; Smith v. Loader, Prec. in Ch. 80; 7 Ser. & R. 230, Riddle v. Murphy; 1 Harris 359, Jackson v. Summerville; 5 Barr 216; Story’s Eq. 193.

      T. B. BranJclin, in reply.
    It was contended that if even actual fraud existed, the money should be refunded so far as it has' gone to the relief of the adverse party. That equity is satisfied by placing the party injured in the condition in which he was before.
   The opinion of the Court was delivered by

Black, C. J.

It is not denied that the title by which the plaintiff below claims the land was originally good. But the defendant asserts that it passed to him by a sheriff’s sale; and so it did, if his purchase was an honest one. This was the matter of fact contested before the jury.

The plaintiff offered one Barefoot as a witness, to whom the defendant objected on the ground of interest. It was not asserted that he had a direct interest in the record, or that the judgment in this case could be used as evidence for or against him in any future suit to which he might become a party. But it was shown that he was a creditor of Jane Downey, and that Jane was the surety of John Downey for a debt which John would be able to pay if his assignee recovered in this case; otherwise Jane would be compelled to pay the debt and her property would be so far exhausted that the witness’s debt would probably not be realized. If his character did not put him above the suspicion of being influenced by a mercenary motive in giving his testimony, the relation he bore to the subject was a fair argument to the jury against his credibility. But it was entirely too remote an interest to exclude him.

Robert Evans was the purchaser at sheriff’s sale, and seems to have defended the cause as the real party. The defendants on record were probably his tenants. Certainly they hold from him in some way. It is charged that he got the property knocked off to him at an under price, by falsely giving out that he was buying it for the family of the defendant in the execution, and by fraudulently pretending that the purchaser would take it charged with certain liens which he knew the sale would divest. There is some evidence from his own mouth that this trick was practised (if praetised at all) by him and his brother Walter together, and for their joint benefit. Under these circumstances, it was not error to admit evidence of a statement made by Walter, which prevented bidders from going to the sale, or his declarations afterwards concerning the purchase, its purpose and object. The words of a co-conspirator, as well as his acts, can always be proved when uttered in furtherance of the common design. His subsequent admissions were rightly received for another reason, namely, because if he and Robert bought the property together, (as Robert had said,) he was a party in interest.

Walter was himself offered as a witness in favor of his brother. The bill of exceptions contains but this: “Walter Gr. Evans objected to by plaintiff, Mr. Stevens — disallowed on account of interest.” The presumption is that the Court was right. We make every intendment in favor of a judgment. It was the business of the Court to find and decide the fact of interest or no interest, and we cannot suppose they did so on insufficient evidence, when the bill of exceptions does not show it. This alone would decide that the judgment could not be reversed on that ground. But from what I have said before, our opinion will be readily inferred that the witness had such an interest as would render him incompetent. The defendant has probably lost nothing by leaving his bill imperfect.

But the great point in this cause, which really goes to the root of it, is raised by that part of the charge in which the jury were instructed to find an unconditional verdict for the plaintiff, if they believed there was actual fraud in the defendant’s purchase. The defendant thinks he has a right to hold the land until he is reimbursed what it cost him, no matter how fraudulent his conduct was.

In the case of a purchase, honest in itself but forbidden by a rule of policy, the legal fraud cannot be taken advantage of without a tender of the purchase-money. Thus, an attorney who buys a title on which he has been consulted, without the consent of his client, may hold it until he is reimbursed what he paid for it (3 W. & Ser. 486). The same rule applies to all sales which are unobjectionable except for the fiduciary relation borne by the purchaser to the other claimant. It is also true that where a party goes into chancery to be relieved against a hard bargain which has been extorted from his folly, his weakness, or his necessities, but which he made with his eyes open and without being influenced by any positive deception of the other party, the relief will not be given until he who seeks it surrenders all the advantage he has derived from the agreement. He must do equity before he can ask it. Thus, one in remainder sold an estate which was to fall in upon the death of a tenant in tail, turned of fifty and not likely to marry, for a sum not greater than a single year’s purchase. Lord Hardwicks declared it a catching bargain against a necessitous and improvident heir, and set it aside, but decreed the plaintiff to pay back the sum he had received (2 Atk. 133). Where ¿£1000 had been assigned to an attorney for fees, by a weak and intemperate woman, there being no proof of deception the attorney was allowed his just claim and no more (2 Atk. 296). A defendant in an execution, driven to the wall by the oppressive rigor of his creditor, and seeing his property about to be sold at an enormous sacrifice, consented to give a bond and mortgage for his own debt and that of his insolvent son besides. It was decreed that the bond and mortgage should stand for the amount of the execution only (2 Cowen 138). The assignment of a sailor’s share of prize money at a great under value, was set aside upon paying the sum actually received by the assignor (2 Ves. Sr. 516). A deed was ordered to be cancelled on account of the grantor’s mental imbecility; but the master was directed to take an account between the parties and allow certain advances made by the grantee (11 Wheat. 103). In none of these cases was there any actual fraud. They were all hard bargains — hard not because they were procured by deception, but on account of the gross disparity between the thing given and the price paid. The last mentioned might seem at first blush to lie outside of the rule; but the weakness of the grantor does not seem to have been imposed upon; and though the Court-speaks of the grantee’s conduct as improper, it is not pronounced to be fraudulent. The contracts were all sound in law. It required the intervention of a chancellor to dissolve them, and he could do it only upon terms which would place all parties in their original condition.

But we thought it was settled in Pennsylvania, if not in every other civilized state, that a title procured by means of an actual fraud or a plain and positive deception, was tainted through and through, destitute of all validity, and utterly void in law as well as in equity. Certainly it has been so decided very often here and elsewhere; and though we have examined all the cases cited on the argument, from books within our reach, we have found none in which the proposition is denied by any Court. Gilbert v. Hoffman (2 Watts 66), ruled the very point now before us in a ease precisely like this. Jackson v. Summerville (1 Harris 359), decides the principle with equal clearness. In Riddle v. Murphy (7 Ser. & R. 230), the Court, speaking of one who had purchased at a sheriff’s sale under a fraudulent judgment to which he was himself a party, said, “ in his character of purchaser he could not claim to be reimbursed, for if the sale was fraudulent it w.as a nullity.”

To say that a void title can stand as security for purchase-money, advances, or anything else, is a contradiction in terms. It falls like an empty sack, because it has nothing to support it and cannot support itself. The proposition that one who is detected in a cheat by which he has acquired no title, shall, nevertheless, be placed on the footing of one who has a good title, unless the money he expended in the perpetration of the fraud be paid to him by the injured party, shocks our sense of right as much as it violates the analogies of the law. I am content, however, to leave the justice of the rule to the ample vindication of it given by Chief Justice Kent in Sands v. Codwise (4 Johns. Rep. 597).

We are of opinion that if the plaintiff was entitled to recover at all, it was on the ground of fraud — not fraud by construction of law, but actual fraud — and, therefore, he was not bound to tender the purchase-money before trial, nor take a conditional verdict by which he would be compelled to pay it afterwards.

There being no error in the charge, nor in the ruling of evidence in or out, the verdict is of course conclusive on the facts, and the judgment must be affirmed.

Judgment affirmed.

Lowrie, J., dissented.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Yost versus Eby.
    ■ 1. Whatever would he regarded as an informality in a declaration and as amendable under the Act of 1806, is to be regarded in the same light when it occurs in a plea or notice of set-off.
    2. Where the plea of “set-off” is put in and notice of special matter given in due time stating the nature of the defence with substantial precision, the defendant, on the trial, may alter his plea by averring the defendant’s liability for the same subject-matter to have occurred in a different manner. The case of Sharp v. Sharp, 13 Ser. & JR. 445, affirmed: the case of Wilson ». Irwin, 14 Ser. & B. 176, in this respect, disapproved of. (See the case of McCay ». Burr, 6 Barr 153.)
    Error to the Common Pleas of Lancaster county.

    A suit had been brought before a justice of the peace in the name of William Patton and Christian Umble, as trustees and assignees of the late firm of Eby & Lightner, v. Christian Yost.
    Eby & Lightner, as partners, were merchants in Lancaster county. Christian Yost was a farmer, residing in their neighborhood. It was alleged on his part, that in the winter of 1848 and spring of 1849, he delivered to Eby & Lightner 448§§ bushels of wheat by weight, which they were to keep in store for him till he ordered it to be delivered in Philadelphia. The wheat remained in the warehouse till the fall of 1849, when Yost directed it to be taken to Philadelphia.' It was alleged on his part that they sent to the city only 364¡H) bushels, and disposed otherwise of the1 remainder, viz., 83|§ bushels, which, at $1.05 per bushel, would amount to $88.06.
    On the 24th January, 1851, Eby & Lightner made an informal assignment of their property to Patton & Umble, for the benefit of creditors, and they, as assignees, brought suit against Yost before a justice of the peace, to recover $36.13, an alleged balance on book account, with interest, and for an alleged over-payment on grain.
    At the hearing before the justice, Yost produced as a set-off, a book account, amounting to $1.07-|, and a claim for $88.06 for the wheat before referred to. The justice refused to allow any part of the set-off except the book account of $1.07-J, and entered judgment in favor of Umble and Patton, for $35.05-J, and costs of suit. Yost appealed — the appeal being entered on 1st September, 1851. Narr. was filed on 17th November, 1851, and on 25th February, 1852, a report of arbitoators was filed, awarding no cause of action. An appeal was entered for plaintiffs. The pleas, April 6, were non assumpsit, payment, and payment with leave to give especial matters in .evidence, &c., and set-off.
    A jury being up for trial on 23d November, 1852, a motion was made for leave to amend the record by stating the names of the plaintiffs, as Moses Eby and John L. Lightner, for the use of Patton and Umble, their trustees, and to amend the narr. so as to conform to the record. The amendment was allowed. Surprise being alleged, the ease was continued at the costs of the plaintiffs.
    On 29th November, 1852, an amended narr. was filed, and rule on defendant to plead. November- 30,1852, pleas “ non assumpsit and set off” entered. On 3d January, 1853, notice was served on defendants’ attorney to state the matters of set-off fully in a plea or notice, under the rules of Court; and on 5th January, 1853, notice was given, that the defendant, under the pleadings in the case, would give in evidence and i-ely upon the following receipts and matters of set-off, viz.:
    1. Ree’d, Concord, December 13, 1848, from Christian Yost, 59J bushels white wheat, wt. 61 f, to remain in store for further orders. Signed, Eby & Lishtneb,.
    What purported to be copies of other receipts were furnished —most of the other receipts were to the same effect; — in one of them the wheat was stated to be “in store,” and in two of them “to remain in store.”
    On 27th April, 1853, the ease was called for trial; and on the trial the receipts of which notice had been given, on 5th January, 1853, were offered in evidence on part of the defendant. Objection was made on part of plaintiff, and the case of Leas v. Laird, 6 Ser. & R. 129, being cited, and also the rules of Court relative to notice of set-off, the receipts were overruled. To this the first bill of exception was taken.
    On part of defendant were then offered the receipts before referred to, coupled with evidence that the wheat had been otherwise ' appropriated by Eby & Lightner, and that the defendant had not been paid for it: cited 6 W. & Ser. 439; Id. 155; Id. 150. Evidence disallowed, and exception taken. This was the second bill.

      Offer was then made on part of defendant to amend his plea, by pleading specially that the plaintiffs were common carriers, and as such received into their warehouse the following amounts of wheat to transport to the city of Philadelphia; and that instead of doing so, they appropriated the same to their own use, and have never paid defendant for the same. The wheat was the same referred to in the plea. The amendment was objected to, and was disallowed. Exception was taken — and this was the third bill.
    April 27, 1853, verdict for plaintiffs, and damages assessed at |42.17.
    It was assigned for error — 1st. That the Court erred in rejecting the receipts for grain, copies of which were furnished to plaintiffs’ counsel in the notice of set-off. 2. In refusing to allow the defendant, under the plea of set-off, to give the receipts in evidence, and to show the storage of the wheat, &c., part of the plaintiffs’ claim being for over-payment of grain. 3. In refusing permission to amend the plea. 4. In allowing the substitution of other parties as plaintiffs.

      Stevens, with whom was Livingston, for plaintiff in error.
    As to the 1st and 2d assignments, it was contended that under the notice furnished on 5th January, 1853, of the matters of set-off, the evidence of the set-off should have been received. Notice of set-off should describe the demand with reasonable certainty: 6 Ser. & R. 120; 11 Id. 50; 5 Barr 54; 3 Id. 381; 1 Jones 268. The notice in this case was sufficient to inform the plaintiffs as to what would be the character of the set-off. Copies of the receipts proposed to be offered were furnished with the notice.
    As to the 3d assignment, it was contended that the amendment of the plea was a matter of right, and not discretionary with the Court. The Act of 1806 authorizes amendments of pleas to be made on the trial. Sect. 6th of Act of 21st March, 1806; 2 Jones 342; 5 Whar. 116; 4 Harris 160; 7 Ser. & R. 81. Evidence may be excluded if notice, when required by rule of Court, be not given fifteen days before trial, if the plea be not amended; but the Act of 1806 authorizes amendments of the pleadings on the trial, and a Court has no right to adopt a rule prohibiting such amendment, unless made fifteen days before the trial. The plea of set-off had been entered in short. The plaintiffs’ counsel asked for notice of the matters of set-off, and they were furnished; a,nd on the trial the defendant’s counsel moved to amend the plea by drawing it out at length. No new matter was offered. In the case of Sharp v. Sharp, 13 Ser. & R. 444, in which the plea was payment with leave, no notice of special matter had been furnished; and it was held that the defendant had the right to add the special matter by special flea. In the case of Wilson v. Irwin, 14 Ser. & R. 176, it was refused. In the case of McCay v. Burr, 6 Barr 148, the plea was payment with leave, &c. In the present, case the offer was to amend the plea of set-off. In set-off the defendant is actor as well as the plaintiff; and if the plaintiff can amend his hill of particulars, as in Wager v. Chew, 3 Harris 338, why should not defendant be allowed to amend his plea of set-off: 13 Ser. & R. 445.
    As to the 4th assignment, it was said that new parties were added, and that this was error: 3 Harris 21; 5 Barr 103.

      North and Frazer, contrh.
    It was said that the record does not state that the amendment as to the parties was objected to when made.
    The rule of Court under which notice was required, provides that “ when a set-off is pleaded, it shall, if required, be specially and fully set forth in the plea, or in a notice to be given fifteen days before trial.”
    As to the first assignment. The notice given did not conform to the requisition, as it contained no claim for grain sold or detained, and nothing to show that it did not remain in the warehouse of Eby & Lightner. The notice should be as certain, and contain as precise information as a special declaration: 5 Barr 53-4; 1 Jones 278; 3 W. & Ser. 364; 5 Ser. & R. 120.
    ■ Second assignment. The matters offered not being properly stated, the notice was not admissible under the rule of Court. There was no claim made by the plaintiffs for over-payment of grain as claimed in the narr.

    3. A defendant who has omitted to give notice under a short plea of set-off, cannot amend on the trial by filing, a special plea of set-off, setting out the matter with particularity: Thorne v. Hugh, 9 Legal Intelligencer 46; 14 Ser. & R. 176, Wilson v. Irwin; 6 Barr 153, McCay v. Burr.
    4. The amendment of parties wa.s right under the proviso to the 4th sect, of the Act of 20th March, 1810, providing that no mistake in form in proceedings before justices of the peace shall prejudice either party. The proviso relates to appeals from one justice: 3 Whar. 82. The same cause of action must be preserved: 2 Watts 14; 1 Harris 63.
    June 8, 1854,
   The opinion of the Court was delivered, by

Lewis, J.

The Act of 1806, relative to the amendment of pleadings, declares that “ when, in the opinion of the Court, an informality in a declaration or plea will affect the merits of the cause, the plaintiff shall be permitted to amend his declaration or statement, and the defendant may alter his plea or defence,'on or before the trial of the cause.” The effect of this Act has been to make amendments, which before were discretionary, a matter of right, which it was error to refuse: 13 Ser. & R. 248; 6 Barr 88; 8 Watts 461, &c. Reason and justice require that the defendant should at least be placed on a footing of equality with the plaintiff. The statute does this in language entirely free from ambiguity. In the same breath that it grants to the plaintiff the right to “ amend his declaration or statement,” it declares that “ the defendant may alter his plea or defence.” Where a defendant claims a set-off, his defence is in the nature of an action, and his plea or notice of set-off is in the nature of a declaration. Whatever would be regarded as an' informality in a declaration, to be amended as matter of right under this Act, must be considered in the same light, when it occurs in a plea or notice of set-off. In the amendment of a declaration the principle is established, that as long as the plaintiff adheres to the original instrument or contract on which the declaration is founded, an alteration of the grounds of recovery on that instrument or contract, or of the modes in which the defendant has violated it, is not an alteration of the. cause of action: Cox v. Tilghman, 1 Whart. 287; Stewart v. Kelly, 4 Harris 162. New and different breaches of the same contract may be assigned: Cassel v. Cook, 8 Ser. & R. 268; Shannon v. Commonwealth, 8 Ser. & R. 444. Where the action is on a policy of insurance, and the plaintiff declared on losses by capture of an enemy, he may add a count on the same policy for loss by barratry. Where the action is for the misconduct of the plaintiff’s agent in the sale of cotton, he may add different forms of misconduct on the sale of the same article: Rodrique v. Curcier, 15 Ser. & R. 82. Where the action is on a contract for the sale of hogs, and the plaintiff declares on an actual delivery of the hogs, he may amend by averring a mere readiness to deliver them: Stewart v. Kelly, 4 Harris 160. A different contract in form may be introduced, but not in substance; where the action is for the value of goods a quantum meruit may be added to the counts on an agreement for a specific price: Rodrique v. Curcier, 15 Ser. & R. 82. These principles have been recognised in the cases cited. Let us apply them to that under consideration.

The defendant claimed a set-off for the value of certain quantities of wheat delivered by him to the plaintiffs at different times. A receipt was taken at the time each load of wheat was delivered, specifying the date and quantity. In most of them it was stated that the wheat “ was to remain in store for further ordersbut in some of them it was simply said that it was to “remain in store.” This difference was not material, because wheat deposited “ to remain in store” was as much subject to the “ further orders” of the owner, as if these words had been expressed in the receipts. In giving the notice of set-of, the defendant furnished the plaintiffs with an accurate copy of each receipt. When these were offered on the trial, coupled with evidence that the plaintiffs appropriated the wheat to their own use and never paid for it to the defendant, the evidence was rejected. The reason for this does not appear in the bills of exception, but we understand that it was excluded because nothing was said in the notice of special matter of the manner in which the plaintiffs had broken their contract in respect to the property, and because the precise terms of the contract were not stated. The defendant then offered to amend his plea “ by pleading specially that the plaintiffs were common carriers, and, as such, received into their warehouse” the amounts of wheat set forth in the receipts “ to transport to Philadelphia, and that, instead of doing so, they appropriated the same to their own use, and have never paid the defendant for the same.” The Court refused to permit the amendment, and the defendant was thus deprived of the privilege of submitting his set-off to the jury. It is plain that the defence throughout was founded on a claim to compensation for the wheat delivered to the plaintiffs on a contract which rendered them liable to account for it; that the plea of set-off offered on the trial claimed compensation for the identical wheat specified in the notice of special matter; and that the only amendment proposed was in the formal manner of stating the plaintiffs’ liability. This was no greater change in the manner of establishing his claim to compensation for his wheat than that produced by substituting a contract to pay for goods as much as they were worth, for one which fixed upon a particular price ; or than that sustained by substituting an executory contract, with an averment of a readiness to deliver the property and a refusal to accept it, for a contract executed by actual delivery and acceptance. Nor could the amendment take the party more by surprise than one which permitted the plaintiff to change his ground from a capture by an enemy to a loss by barratry. It is clear, therefore, from the authorities, that if the defendant had been allowed no more than the benefit of the rule which governs amendments by plaintiffs, the one asked for in this case would not have been denied. But in Hartman v. the Keystone Insurance Company, 9 Harris 466, it was held that although a plaintiff is not permitted to alter his declaration so as to introduce a new cause of action, “the right of the defendant to change his plea is nob limited by anything but the discretion of the Court, and by that he is held merely to good faith." Where the Court is satisfied from evidence that the notice of special matter was either omitted entirely, or insufficiently drawn up, for the purpose of procuring delay, or in order to gain some other unfair advantage, the amendment should be refused; but where there is no evidence of bad faith, and the amendment affects the merits of the cause, the defendant has a right to alter or amend his plea on or before the trial. If the Court has reason to suspect that the object is merely to gain the conclusion, or to change the burthen of proof, an affidavit may be required that the amendment proposed will affect the merits, and that it is not desired for any other reason.

We can readily appreciate the embarrassment which may have been produced in the mind of the learned President of the Common Pleas by the case of Wilson v. Irwin, 14 Ser. & R. 176, and others founded upon it. That decision is in direct conflict with the previous ruling of the Court in Sharp v. Sharp, 13 Ser. & R. 444. The first decision was well considered, and is founded on a careful regard for the rights secured by the Act of Assembly; but it was not reported when the subsequent decision was made, and, owing to the introduction of additional judges, was probably overlooked, as it does not seem to have been cited or noticed. In adhering to the older and better opinion, we disturb no rule of property. We merely change a rule of practice founded upon an erroneous construction of the statute. It is true that the cases of Sharp v. Sharp and Wilson v. Irwin both turned on the question whether a defendant, who had neither pleaded nor given notice of set-off, had a right to add the plea on the trial, and thus supply the place of a notice. In that respect they differ from the one now before us. Here there is a short plea of set-off on the record, and there was notice given in due time, which indicated with substantial precision the nature and amount of the defendant’s set-off. A total omission to give any notice whatever might, if unexplained, be regarded as evidence of an intention to delay. But this cannot be presumed where, as here, the defendant had given notice of everything but the mere formalities of his defence. Where this is the case, a defendant cannot be deprived of his rights upon the unfounded suspicion that he may make a bad use of them. The amendment in this case ought to have been allowed. We see no other error.

Judgment reversed and venire facias de novo awarded.


text:
    Wissler versus Hershey.
    'J When land is conveyed which the vendee cannot reach without going over other land of the vendor the right of way is implied, and of necessity becomes appurtenant to the land conveyed so long as it cannot be enjoyed otherwise.
    2. In an action for disturbing such right of way the plaintiff need not set out the origin of his title. But if he does, he must aver it according to the truth.
    _ 3. A judgment in such an action so far establishes the right in the plaintiff that its existence at the iim.e of the judgment cannot be disputed after-wards. But the plaintiff may lose his right afterwards, as well as before, by abandonment, surrender, release, or cessation of the necessity on which it was founded.
    4. When land over which there is a right of way in another is sold, the purchaser takes it subject to the easement though he had no actual notice of it.

      5. If the sale was a public one and the owner of the way was present and said nothing, his silence, unless it was fraudulent, will not defeat his right.
    6. In a case where the actual knowledge of the purchaser becomes material, the fact that the way was used for many years, and that the purchaser lived all the time in the same immediate neighborhood, is some evidence which ought to go to the jury.
    7. When the Court answer seriatim the legal propositions submitted by counsel, and then separately charge generally, and. exception is taken to the answers and not to the general charge, the bill of exceptions does not put the general charge upon the record. But when the answers refer to the general charge, so much of the latter as is thus referred to will come up with the answers and be considered as a part of them.
    Error to the Common Pleas of Lancaster county.

    This was an action on the case to November Term, 1851, by Henry Wissler v. Benjamin Hershey, for obstructing a right of way claimed by the plaintiff over the farm of the defendant, and through his barn-yard to the plaintiff’s wood lot.

    The farm of the defendant and the wood lot of the plaintiff formerly formed parts of the same tract, which belonged to Michael Kauffman. In 1812 Michael Kauffman divided the property into six parts, one of which constituted the farm now of the defendant, and the other five portions were wood lots. He put up all of the parts to sale, and sold the farm to Abraham Kauffman; and be sold four of the wood lots and retained one. In his conveyances there was no reservation of a right of way to the wood lot retained.
    On the part of the plaintiff it was alleged, that Michael Kauffman had no access to his wood lot except over the farm sold to Abraham Kauffman, or over land of other people; and that he passed over the farm to his wood lot from 1812 till his death in 1850. ' On the other side it was alleged, that he had access to his lot over the other wood lots — that he used the way through the farm permissively and not adversely — that the place where the road was claimed to exist, was ploughed up when required, and farmed — and that it was farmed at the time the defendant bought the farm in 1847, and that there was then no mark of the road upon the ground. ,
    In 1851, the executors of the will of Michael Kauffman sold the wood lot to Henry Wissler, the plaintiff; and the defendant purchased the farm at sale by the administrators of the estate of Henry Kauffman in 1847.
    It was alleged on part of the defendant that Michael Kauffman was an appraiser at, and was present at the sale of the farm by the administrators of the estate of Henry Kauffman, and then gave no notice of any claim to a right of way over the farm.
    In the declaration it was alleged, that the plaintiff was lawfully possessed “ of a certain tract of land, with the easement thereto belonging” — * * * * and by reason thereof ought to have a certain way from the said tract through the land of the defendant to the public road, through the barn-yard of the defendant, and back again from the said road through the barn-yard, &c.; and an obstruction of the road was alleged.
    On part of the plaintiff testimony was given that the road through the barn-yard to the public road was the best way — that it was less injurious to the defendant’s farm than any other way of passing over it to the plaintiff’s lot.
    Evidence was given that the position of the barn had been changed from where it formerly was — that where the new barn is, there were bars through which the passage was.
    Testimony was given of the use of the road by the wagons of Michael Kauffman for years. Benjamin Kauffman, a son of Michael Kauffman, testified to its use by his father’s wagons from 1818 to 1832.
    The farm of Abraham Kauffman was sold in 1823, and Henry Kauffman became the owner — and after his death it was sold by the administrators of his estate in 1847, to the defendant, as before mentioned.
    After a variety of evidence had been given on each side, it was offered on part of the plaintiff to prove that the defendant “was raised in the neighborhood, and lived within two miles of the road in dispute until a year past.” This was disallowed, and exception was taken.
    Nine points were presented on the part of the plaintiff, to all of which there were answers. The substance of some of the points were — 1. That 21 years’ uninterrupted enjoyment of aright of way afforded presumptive evidence of a grant of it. The 4th. That if Michael Kauffman, having reserved the wood lot at the time he sold the farm, had, from necessity, a right of way over the farm to the wood lot, and that this right enured to the plaintiff, the necessity still existing. 6. If the way existed by necessity, as well as by use and enjoyment for above 21 years, no silence of Michael Kauffman at the subsequent sale of the farm by the administrators, if he were then silent, deprived the plaintiff of a right of way. The seventh was to the same effect. The eighth, That the way, if one of necessity, was of itself notice, and also by reason of its notorious location. The ninth, That the ploughing of the road, if it were ploughed, did not destroy the right of way through a use for 21 years, much less where the road existed by necessity.
    Lons, J., answered the first point in the affirmative. To the sixth he charged, that whether the road existed by necessity, as well as by constant enjoyment beyond twenty-one years, under the admission of Abraham and Henry Kauffman, owners of the farm, was for the jury to decide upon; but that if Michael Kauffman were silent with respect to it at the sale of the farm, his silence deprived him of the right. The answer to the seventh point was to the same effect. To the eighth, he replied that if the way were proved, and it was one of necessity, it would not be notice to purchasers at a sale where the claimant was present and was silent with respect to it; and that the circumstances connected with the alleged right of way were not notice to purchasers. To the ninth, he charged, That to entitle the plaintiff to recover by prescription, he, or those under whom he claimed, should have had the undisturbed use for twenty-one years; and if, during the twenty-one years, the persons through whose land it passed treated the land in a manner inconsistent with the right of way, then the plaintiff could not recover on the ground of prescription ; but he would not lose such right of way by non-user, unless it amounted to abandonment. But if the road were one of necessity, the ploughing of it would not destroy the plaintiff’s title to it.
    The answers were excepted to on part of the plaintiff.
    April 30, 1853, verdict for defendant.
    Subsequently, viz., in April, 1854, the judge, in writing, stated that being called upon by the counsel of plaintiff to furnish a copy of a portion of his charge in the case so far as it related to the declaration, he certified what he believed to be a copy of such part of it; that other portions of the charge he had not found. In his statement it was, in effect, alleged that he had charged, that it being alleged in the declaration that the plaintiff, by reason of being the owner of land and the easement thereof, had a right of way, he could not recover for any disturbance of a right of ivay by necessity, inasmuch as a recovery under the declaration for any amount would establish the right; whereas, if a recovery were on the ground of a right of way from necessity, the right would cease when the necessity ceased. That, therefore, if the plaintiff recovered, it must be by making out a case of prescription.

    Error was assigned — 1. To the rejection of the offer to prove the residence of the defendant in the neighborhood of the land. 2. In the portion of the general charge certified after the trial. 3. In the answer to the sixth point. 4. In the answer to the seventh point. 5. In the answer to the eighth point.

      Smith and Frazer, for plaintiff in error.
    The residence of the defendant in the neighborhood was admissible as evidence of knowledge on his part of the existence of the road: 2 Harris 22. Whatever puts a party on inquiry amounts to notice: 7 Watts 267; 4 Harris 364.
    2. The position of the Court, that the right of way from necessity should have been set out in the narr., is in conflict with precedent and authority: 2 Chitty 808. In 2 Saunders’ Rep. 114, note, it is held that the plaintiff need not declare how he is entitled to a right of way. Also 1 Chitty 382; 2 Id. 800, note y.; 1 Tidd 396; 1 Vent. 274. If the plaintiff had been defendant and claimed a right of way from necessity, it might have been necessary to plead it: 3 Chitty 1125.
    3. The doctrine of estoppel is not applicable. The right by prescription is as valid as if secured by deed duly recorded; and silence will not estop him whose deed is of record: 4 Harris 364, Knauff v. Thompson; 10 Barr 531. The right of way was not exposed to sale with the farm, and the purchaser might have become informed as to it.
    Franklin, with whom was Fordney, for defendant in error.
    The matter excepted to in the second assignment is not in the answer to the fourth point, but is in the general charge to which no exception was taken.
    A right of way from necessity is not an appurtenance, but an easement arising by operation of law, and it should be pleaded: 3 Stephens Nisi Prius; Woolwich on Ways 15-23; Id. 72; 19 Wend. 507. The declaration is not general. In it is claimed a specific right of way through the defendant’s barn-yard. This specific right could arise either from grant or prescription, and not from necessity unless the defendant declined or refused to designate a track over his farm. A recovery under this declaration would establish the right of way through the barn-yard; whereas a way by necessity might be over some other part of the farm less inconvenient to the defendant: 4 East 107.
    As to 3d and 4th assignments, there was no reservation of a right of way in the conditions of sale by the administrators. It was not specified in any deed or record, and the ground in the field over which it was claimed, was ploughed at the time of such sale in 1847. Michael Kauffman should have given notice of it: 3 Rawle 492; 10 Barr 530; 7 Watts 100; 4 W. & Ser. 323; 5 Id. 302.
    6. There was nothing in the circumstances in evidence which could be relied on as notice to a purchaser, or to lead him to inquiry as to the existence of a road.
   The opinion of the Court was delivered by

Black, C. J.

In this case the following points arose and were argued and determined by this Court.

1. When land is conveyed, which the vendee cannot reach without going over other land of the vendor, the right of way is implied, and, of necessity, becomes appurtenant to the land conveyed so long as it cannot be enjoyed otherwise.

2. In an action for disturbing such right of way, the plaintiff need not set out the origin of his title. But if he does, he must aver it according to the truth.

3. A judgment in such an action so far establishes the right in the plaintiff, that its existence at the time of the judgment cannot be disjouited. afterwards. But the plaintiff may lose his right after-wards as well as before by abandonment, surrender, release, or cessation of the necessity on which it was founded.

4. When land, over which there is a right of way in another, is sold, the purchaser takes it subject to the easement, though he had no actual notice of it.

5. If the sale was a public one, and the owner of the way was present and said nothing, his silence, unless it was fraudulent, will not defeat his right.

6. In a case where the actual knowledge of the purchaser becomes material, the fact that the way was used for many years, and that the purchaser lived all the time in the same immediate neighborhood, is some evidence which ought to go to the jury.

7. When the bad practice is adopted by the Court, of answering the legal propositions submitted by counsel seriatim,, and then separately giving what is sometimes called a general charge, and counsel take an exception to the answers, and not to the general charge, the bill of exceptions does not put the general charge on the record. But when the answers refer to the general charge, so much of the latter as is thus referred to will come up with the answers and be considered a part of them.

These rules show that the cause was mistried below, and the judgment must therefore be reversed.

Judgment reversed and venire facias de novo awarded.


author: Woodward, J.

text:
    Wyant versus Lesher.
    Past cohabitation and the agreement of the father of the female that the obligor might marry his daughter, though she was of full age and thus competent to contract marriage without his consent, were a sufficient consideration for a bond conditioned for her proper treatment and that the obligor, her intended husband, would not desert her.
    Error to the Common Pleas of Franklin county.

    This was an action to January Term, 1850, by Jacob E. Wyant against John Lesher and Henry Lesher, on a bond executed by the defendants to the plaintiff.
    John Lesher, one of the defendants, addressed the daughter of the plaintiff, and she being pregnant, he refused to marry her, and a prosecution was instituted against him. After his arrest he proposed to marry her, and the plaintiff required from him security that he would treat her well and not desert her. He, and the other defendant as his surety, executed the bond in suit, dated 23d October, 1851; which was in the penalty of $500. In the condition it was recited that the female had a child to said John Lesher, born on the 2d or 3d October, and that Jacob E. Wyant, the father, agrees that the said John may marry his daughter “ on condition that he treats her as a loving and affectionate husband ought to do, and not to desert her,” to which the obligors assent and agree that if the said John Lesher, after marriage, “maltreat, abuse, or desert her,” then the obligors to pay the sum of $500 for the use and support of the said Mary, and her heirs, &e.
    In the declaration on the bond breaches were assigned to the effect that John Lesher, after his marriage, deserted his wife.
    The pleas were payment with leave, &c., misrepresentation, &c., that Lesher did perform, that the female was of full age and competent to contract marriage without the consent of her father, that the bond was against public policy, and void, that there was no legal consideration to sustain it, and that he did not desert her.
    The plaintiff’s counsel asked the Court to instruct the jury that if they were satisfied that John Lesher, after his marriage, maltreated and deserted his wife, the plaintiff was entitled to recover on the bond.
    Kimmell, President J., briefly directed the jury “ to return a verdict for the defendants.”
    Such direction was assigned for error.
    The case was submitted.
    In the argument of Reilly and Hill, for plaintiff in error, it was alleged that neither fraud, imposition, or mistake was proved in the case. It was to the advantage of Lesher to avoid a conviction. A contract of compromise between the reputed father of an illegitimate child and its mother, by which the father agreed to pay a stipulated sum for lying in expenses and for the maintenance of the child, was held to be valid: 9 W. & Ser. 69, Maurer v. Mitchell.
    The consent of the father was not the consideration. It was the consent of the female to the marriage, and the arrangement of the prosecution, which was the consideration of the bond, and the sum forfeited was to go for her use and for that of her heirs. The father was but a trustee.
    It is not against the policy of the law that a man shall support a woman whom he is about to marry, and her children. A husband having ill-treated his wife, gave her a note that if he again maltreated her, she should have ¿63000 for her own use. It was decreed that he pay the note: 2 Ventris 217. An agreement to provide for the wife, if necessary for husband and wife to separate, held to be valid: 2 Vernon 67; Reeves Dom. Rel. 94. It is not against the policy of the law to do what the law may compel.

      A. K. Qornyn, for defendants in error.
    Marriage should proceed from free choice, and when a parent or guardian insists upon private gain or security for it, the agreement should be set aside : 2 Vernon 499-652; 1 P. Wms. 118; 1 Salk. 158. “You shall not have my daughter unless you do so and so, is to sell children and make matches:” Hob. 10; Fontblanque 209-12; 2 Vernon 588; 1 Mad. Ch. Pr. 231; Id. 267; Story on Con. 595-589; 7 Price 377; 11 Vesey 530, case of St. John v. St. John.
    It was stated that the bond was not only against the policy of the law, but was without consideration. It does not appear from the bond that the compromise of the charge of fornication and bastardy was part of the consideration. In the bond the alleged consideration is expressed, viz. the consent of Wyant, the father, that Lesher may marry his daughter on condition that he treats her well, &c. The case depends on the terms of the bond alone.

      F. Smith, on the same side. — The only consideration expressed in the bond is the consent of the father. Other consideration is thus excluded: 3 U. S. Digest 17, citing 8 B. Mon. 596; 1 vol. 99, sec. 33. The bond is an entire contract, and if any part of the consideration is illegal, it is void in toto: 5 Barr 452. The bond is against public policy: 1 Story Eq. 259-264; 5 Harrison’s Digest 1600. The case of Hoare v. Hoare is the only reported case of an agreement before marriage between husband and wife, for a separate maintenance in the event of a future separation: Glancy 423. But in the present case the wife is no party to the bond. In the case of Rex v. Mary Mead, in 1 Burrows 542, both the husband and wife entered into the article of separation: Reeves 93. The case of Grawden v. Draper, 2 Ventr. 217, and the case in 2 Vernon 386, were cases of agreements after marriage. Reference was made to Smith’s Law of Contracts 216, in which it is stated that a deed tending to the future separation of husband and wife, is void on grounds of public policy: 9 B. & C. 200; 17 E. C. L.; although a deed providing a fund for her support on the occasion of .an immediaie separation is not so. The instrument in the former case tends to facilitate the separation; in the latter, the separation being about to ensue, the effect of the instrument is to save the wife from destitution.
   The opinion of the Court was delivered by

Woodward, J.

Two grounds of defence were assumed on the trial, which the Court sustained as a bar to the plaintiff’s action, and which I proceed to notice in their order. In the first place, it was objected that the consideration mentioned in the bond was illegal and against the policy of the law. The seals imputed a consideration, and the compromise of a prosecution for bastardy, as was decided in Mitchell v. Maurer, 9 W. & Ser., was an adequate consideration for the bond; but it is argued that the bond must be judged by the consideration set forth in it, and that this, being illegal, tainted whatever other consideration may be found growing out of the transaction. Without stopping to inquire how far an illegal consideration can operate to impair an entire contract where there are other good considerations to sustain it, the two considerations mentioned in this bond may be confidently pronounced legal and valid. What are they ? 1st, that Mary had had a child to John Lesher, which in effect is past cohabitation, a consideration which has always been held sufficient to support a settlement or an agreement to pay money; and 2d, the father’s agreement that John might marry Mary, whieh is said to be nothing because she was of' age and capable of contracting marriage without her father’s consent. A father’s consent can never be an unimportant fact in a daughter’s nuptials. Where she resides in his family, he'stands in loco parentis, notwithstanding she has attained her majority. He has a right to advise her matrimonial choice. He is bound not only in morals, but by statute law, to support her and her children, if otherwise unprovided for; and her expectations from his estate may be materially influenced by her marriage with or without his consent. If there be nothing in the filial relation to render the paternal blessing a thing of value, these considerations show that there are possible inconveniences to the father, and advantages to the son-in-law, which, on the strictest principles of contract, are sufficient to hold him to such an obligation as the present. In what does the imagined illegality of the consideration of this bond consist ? Is it immoral for a seducer to provide for the victim of his passions and the offspring of their guilt ? Illegal for a suitor to propitiate parental consent to a daughter’s marriage by a promise that he will live with and treat her as a kind and affectionate husband ought ? It would be a disgrace to our age and generation if the law compelled an affirmative answer. But it does not. Such motives for a promise are legal and reasonable, and afford abundant ground for sustaining it; especially when, as here, though made to the father, it is intended for the benefit of the daughter and her child.

A second objection urged against the plaintiff’s recovery is that the bond itself is against public policy, illegal, and void. The defendants bound themselves in the sum of $500 that John should treat Mary “ as a loving and affectionate husband ought to do, and not desert her; and if the said John Lesher, after marriage, shall or will maltreat, abuse, or desert the said Mary C. Wyant, then the said obligors to pay the said Jacob E. Wyant the aforesaid sum of $500 for the use and support of the said Mary C. Wyant and her heirs.” Though equity will not always lend its aid to enforce articles of separation between husband and wife, yet post-nuptial contracts between them for a separate maintenance of the wife have often been decreed; an example of which, similar in many of its circumstances to the present case, may be seen in Seeling v. Crawley, 2 Vernon 386; and the general doctrine will be found fully discussed in Lehr v. Beaver, 8 W. & Ser. 104. Here, however, the contract was ante-nuptial; and although made between parties competent to contract, is supposed nevertheless to be against policy, because looking to a future separation, and tending to encourage domestic feuds and broils.

The idea is, that such a contract gives a wife an interest in disobedience, and renders her more independent by misconduct than by the most strict observance of marriage duties. Mr. Clancy, in his work on Married Women, p. 422, felicitates himself that Hoar v. Hoar, reported in 2 Ridgway’s Parl Cases 268, is the sole example of a compact before marriage of so mischievous tendency which has found its way into courts of justice.

I have examined that case attentively, and the contract (which related to personal property of the wife before marriage) was fully' enforced against the husband in the House of Lords, on proof of his ill-treatment and desertion of the wife. In our own books I have found no case on the precise point; but I apprehend the principles continually recognised in marriage settlements, articles of separation, and settlements of bastardy eases, justify the contract before us.

In the two first-mentioned class of contracts, the object in view is the maintenance of the wife and her children, in the event of the husband’s inability or unwillingness to provide for them; and in the case of bastardy, the support of the infant; and these are purposes sanctioned by public policy, morals, and law. I see no more tendency in such a contract as this bond, to disturb the harmony of conjugal life, than in a marriage settlement, or in articles entered into after marriage looking to a future separation. This husband stipulated simply for the performance of his duty, and a faithful discharge of that was the surest way to preserve peace in his family. Among the most imperative of the duties assumed in the marriage contract, were the support and maintenance of his wife and child, and for these it was prudent in her father to exact from him a security additional to the marriage vow. If there were failure here the bond is forfeit, and the plaintiff should have a verdict ; but whether the conditions of the bond have been violated or not is a question for the jury, to whom the evidence ought to have been submitted.

The judgment is reversed and a venire de novo awarded.


text:
    Eshbach versus Eshbach.
    1. Mere declarations of the husband unaccompanied by acts are not a ground for divorce.
    2. Nor is the fact that he lay on a separate bed, nor his intention, however distinctly avowed, to obtain his wife’s property, a sufficient reason for her separation or a ground of divorce on her application, if no act have been done to render her condition intolerable or her life burdensome.
    Error to the Common Pleas of Berks county.

    This was an appeal from the decree of the Court, decreeing a divorce, on the application of the husband on account of the desertion of his wife.
    Isaac Eshbach petitioned the Court for a divorce from Esther his wife. His petition was presented on 21st April, 1851, alleging a marriage in January, 1844, and wilful and malicious desertion by his wife in October, 1850, viz., for above six months.
    ' In the answer of the respondent it was alleged that her desertion was not wilful and malicious; 1st, because her husband, for a long time previous to her leaving him, refused to live and cohabit with respondent as man and wife; 2d, because he gave her leave to absent herself, and has since acquiesced in it; 3d, because his conduct towards her was unkind and cruel, and tended to injure her health, and was calculated and designed to force her to leave him; 4th, because the libellant offered such indignities to her person as rendered her condition intolerable and life burdensome.
    An issue was directed. On the trial, no violence on the part of the husband towards his wife was proved. Several witnesses testified that he did not use her badly. One witness said the libellant did not sleep with his wife the week the witness lived in the family — he did not speak to her; he did not forbid her sleeping with him that the witness knew of; the libellant did not molest her — she was industrious. Other witnesses said that the husband provided well for his family — that they did not see him treat her badly.
    The respondent left her home on Saturday. Her husband was not at home when she left. She returned afterwards for her clothing, and her husband said she could have it.

      Peter Deisher testified that the libellant came to his house in December, 1850, and said that he and his wife could not agree— that they did not live amicably — that he intended long since to make it so to her, and he did so make it — that he had legal advice and she could do nothing with him — that she might go into the lowest pit of-and support herself, that he had her money and all her personal property, and that was all he ever cared for about her, &c.

      Various points were proposed to the Court.
    Jones, President Judge, charged, inter alia, that reasonable cause which will amount to a defence, is such as will entitle the party to a divorce on account of it: The Butler Case, American Law Journal of March, 1849, p. 396. The grounds of divorce are stated in the Act of Assembly.
    The refusal of the husband to live. and cohabit with his wife, is not an act of cruelty: Aquilar v. Aquilar, 1 Haggard 776. The assent of her husband to her going away was hardly to be inferred from the evidence. There must have been that in his conduct which justified her going away, independent of any design on his part. Exclusive of the testimony of Beisher there was nothing in the case to show sucha design; and- including it, there was nothing to show that he ever did anything in pursuance of such a design which justified her leaving him. The credibility of witnesses is for the jury, and such cruelty as would justify a woman in leaving her husband may be inferred from circumstances and from his declaration, or from both conjointly.
    He further charged that unkindness and disrespect might amount to legal cruelty, and justify a woman of sensitive temperament in leaving her husband; but as a general thing mere rudeness, rough or reproachful language, or brutality of manner are not cruelty in the view of the law, unless they affect her health of body or mind, and that they do so she must prove. It is not the intention of the husband to drive her away, but the necessity of her leaving, by which her case is to be judged.
    January 18th, 1853, verdict rendered for the libellant, and a decree of divorce was pronounced.
    The charge as referred to was excepted to.

      Banks and Ballade were for appellant.
    The Court should not have given a positive construction to the testimony of Deisher. A course of humiliating insults and annoyances calculated to destroy the health of the wife are a sufficient ground of divorce: Case of Butler v. Butler, 1 Parsons 329; Elwes v. Elwes, 9 Barr 167.
    If Eshbach, the husband, adopted a course of bad treatment towards his wife, for the purpose of forcing her from his house, could he swear, according to the requirements of the Act, that the complaint was not made out of levity or by collusion, or for the mere purpose of being separated from his wife ? The case of Vanleer v. Vanleer, 1 Harris 211, was cited.

      Strong, for appellee.
    The exceptions are all to the charge of the Court, which cannot be made part of the record by a bill of exceptions to it. In divorce cases and in all feigned issues for the determination of facts no writ of error lies, and no bill of exceptions can legally be tendered. Chancery will not order a new trial, if on view of the whole case the Court think that the verdict was warranted, by the evidence: 5 Ser. & R. 374; 8 Harris 67, Piper’s Appeal.
    The cruelty which entitles a wife to a divorce is actual personal violence or the reasonable apprehension of it, or such a course of treatment as endangers her life or health: 1 Parsons 329; 2 Phillimore 95; Poynter on Marriage and Divorce 211.
    The Court may express an opinion on the facts in evidence, and an erroneous opinion is not a ground for reversal: 4 Barr 178; 2 Penna. 19.
   The opinion of the Court was delivered by

Woodward, J.

It has been several times decided that the “reasonable cause” Avhich justifies a wife’s desertion and abandonment of her husband, must be such as would entitle her to a divorce ; and that is defined by the statute itself to be such cruel and barbarous treatment as endangers her life, or the offer of such indignities to her person as to render her condition intolerable and life burdensome. We look in vain through the evidence in this cause for anything that approaches that very high standard of enormity. On the contrary, the general tenor of the testimony is, that Eshbach treated his wife kindly, supplied her abundantly with all necessaries, and exacted no more labor than is customary in families of their condition.

But it is argued that the fair inference from Deisher’s testimony is, that such cruel treatment had been used as forced her to withdraw from her husband’s house, and that the Court ought so to have instructed the jury. We think not. Deisher proves no acts of the libellant, but only his declarations and admissions. If such evidence were made a rule of divorce or of justification for desertion, the conjugal tie would become most insecure, for either party could talk it loose, or a convenient witness would never be wanting to sunder it by his oath. The law requires acts to be proved, of which declarations may be part; but mere declarations, especially when inconsistent with all the acts in evidence, can never be ground for justifying desertion.

Nor is the fact that the husband lay in a separate bed an act of cruelty as Avas ruled in Aquilar v. Aquilar, 1 Haggard 776. Nor is the intention, however distinctly avowed, to obtain the wife’s property, a reason for separation, if there be nothing done to render her condition intolerable and life burdensome. In as many forms as the ingenuity of malice can invent, a wife’s life and condition may be rendered burdensome and intolerable; but, before she has a right to desert her husband or to seek a divorce from him, she must be prepared to prove indignities in some of the numberless forms in Avhich they are possible. This good lady was destitute of such evidence, and the Court was right in refusing to sustain t.he defence she set up.

The judgment is affirmed.


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    Extension of Second Street in Columbia.
    1. A dwelling-house may be removed or demolished in the opening of a road if it be indispensable and the road cannot well be laid elsewhere.
    2. When, the want of a road would prevent people from getting to market or church or other places where their lawful business or duties require them to meet, a road is necessary.

    3. The general necessity may be inferred from a favorable report of viewers: but if the road cannot be opened without removing a dwelling-house or an. important public building, the necessity for the location of it should appear affirmatively.
    4. The mere avoidance of a slight curvature in the road is not such a necessity as will justify the location of a road through a dwelling-house.
    5. The principle in question is not designed to apply to the opening of streets in a populous town; the extension in question in this case is an extension of the street beyond the limits of the borough of Columbia.
    Certiorari to the Court of Quarter Sessions of Lancaster county.

    At April Sessions, 1852, a petition was presented alleging inconvenience, for want of a public road leading from a point on the lands of Samuel B. Heise, at the end of Second Street in Columbia, thence by the nearest and best'route until it intersects the turnpike road leading from Columbia to Marietta, &e., at the point where an extension of said Second Street in its present course would strike the said turnpike in Columbia. The Court appointed viewers, and directed notice to persons interested. To August Sessions, 1852, the viewers reported in favor of a road beginning at a point on the lands of Samuel B. Heise, &c., thence by stated courses to a point where an extension of said Second Street in its present course would strike the turnpike in the said borough, “passing through improved land of Samuel B. Heise, Esq., and lands late of the Misses Bethel, deceased. A draft of which is hereto annexed.” It was suggested in the report that fifty feet would he a proper width for the road. The road suggested passed through Heise’s dwelling-house.

    Exceptions were filed. They were overruled and a review was granted; and to April Sessions the reviewers reported to the same .effect as the viewers.
    Exceptions were filed to the review, which were overruled; and the report of the reviewers was confirmed.
    It was assigned for error, 1. That no notice was given to certain persons interested. The 2d and" 3d were to the effect that the road reported ran through the dwelling-house of Samuel B. Heise, and that this could not be done unless there was necessity for it, which was not apparent in this case; and 4th. That the viewers had not regard to the best route doing the least injury to private property.

      Franklin and North, for plaintiff in error.
    It was said, that a deflexion from a straight line might be of considerable inconvenience to the public in the case of a railroad, 2 Harris 241, but it might not be so in the case of an ordinary road. But if the right exists to run a road through a dwelling-house, the power should be restrained to a case of urgent necessity, which ought to appear in the proceedings. The report in question is silent on that point, and no intimation is made in it that the road is contemplated to be run through the dwelling-house; it appears on the draft; yet it does not appear from either the report or the draft that the public necessity requires the removal of the house. The case in 5 Barr 101 was referred to.
    In support of the proceedings it was stated that the road, as reported, would take off part of an old back building. The road was virtually an extension of a street which ran straight, and the back building in question obstructed the extension. No law expressly prevents the opening of a road through the dwelling-house of an individual; the law contemplates such an injury and provides a mode of obtaining compensation for it. It should not be presumed that without necessity viewers will disturb dwelling-houses; but -it should be left to their discretion. Before the Act of 5th April, 1849, a road might be run through a burial ground — no other place is expressly protected. On the draft, which has not been furnished, the propriety of the route reported is apparent. Without the draft this Court cannot judge of the matter.
   The opinion of the Court was delivered by

Black, C. J.

The party who brings this ease up complains that he will be injured if the road be opened where the viewers have laid it out, inasmuch as the course which they have indicated in their report runs directly through his dwelling-house. Can a man’s house be demolished merely that the public may have the benefit of a highway over the ground ? Undoubtedly it may if the road be indispensable and cannot be laid elsewhere. The interests of individuals must yield to an overruling public necessity. But it ought to be avoided if possible, for the sake of the public as well as the owner, since the former must pay for all improvements thus taken, and the latter by being turned out of doors may suffer an inconvenience for which money would hardly be a compensation.

When the want of a road from one given point to another would prevent a portion of the people from getting to market, to church, or to other places where men are in the habit of meeting on their lawful business or in pursuance of their proper duties, the road is necessary. This general necessity may be inferred from a favorable report of the viewers. But if it cannot be opened as laid out without removing a house or other important building, the particular necessity for locating it on that precise line and not elsewhere must be made to appear affirmatively. If another way can be had equally or nearly as useful, it must be adopted, unless the difference in the expense of making it would be considerably greater than the value of the house.

In the present case nothing is gained by running the road through the house except a straight line; and nothing avoided but a .curve which would make it a few rods longer. It seems to have been merely the taste of the viewers, and that rather a fastidious one, which made them prefer the one to the other. But the gratification of the eye is not recognised by the law as a necessity strong enough to make a man’s dwelling go down.

It is hardly necessary to say that what we have said here does not apply to the opening of new streets in a populous town. This is called “The extension of Second street in Columbia;” but it extends it out into the country, and it is to all intents and purposes a country road.

Proceedings quashed.


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    Shroder versus Brenneman.
    1. A right of way along an alley appurtenant to a particular lot cannot lawfully be used as a mode of access to another lot to which it is not appurtenant.
    2. Gase is the remedy for the illegal use or obstruction of such an alley.
    Error to the Common Pleas of Lancaster county.

    This was an action of trespass on the case by A. N. Brenneman v. John E. Shroder, for the improper use of or interference with an alley along which the plaintiff had a right of passage. The alley was six feet in width, extending along the property of the plaintiff up to and along a property of Shroder’s, the defendant, at the head of the alley, as to which property Shroder had the right of way along the alley. This property Shroder had purchased from John Metzgar. But Shroder had another property lower down the alley, bordering on it, and along which the alley run at right angles to its other course, to which the alley was not appurtenant. The property last referred to he had purchased from Withers. Shroder placed a hydrant in the alley along the side of the latter property, and close to the line of it, and had a gate put in the side of such lot near to the hydrant. It was alleged, on liis part, that the hydrant did not obstruct the passage. It was for the use of the alley in connexion with the latter lot for which the action was brought. Tne plea was not guilty.
    On the trial it was offered to be proved, on the part of the defendant, that the hydrant was put there by the authority of the city; that the defendant had a permit to locate it in the way it was; also that where the hydrant stands there was a structure, and that, until three years last past, there was no gate leading from the alley into Brenneman’s yard, except one near to the mouth of the alley; also for the purpose of showing that the erection of the hydrant was not an obstruction of the right of way, it was offered to prove that the ground on which the hydrant stands, was not used as a right of way, but for 45 years or upwards was occupied by buildings or structures whose existence was inconsistent with a right of way. Also offered to ask a witness whether the hydrant, as it stands against Shroder’s wall, interferes with or obstructs in any way the passage along the alley. Such testimony or evidence was overruled.
    Points were submitted on each side.
    Long, J., charged the jury that where two or more persons have a right of way or passage, each of them must so use that right, as not to interfere with the proper enjoyment of the rights of others; and any interference with that privilege, no matter how small, will give to the party whose right is interfered with, a cause of action. If therefore the defendant had no right by the grant under which he holds to erect such a hydrant, he could not do so, without the consent of the other persons who have a right of way to this alley. With regard to the door or opening, which was made into the wall of the defendant, and which communicates into the alley, the door has an entrance into premises which is not entitled to participate in the enjoyment of the alley. The mere erection of this door, or making an opening into the wall, would not entitle the plaintiff to an action; but if the defendant or his servants, or persons in his employ living in those premises made use of this right of way, then an action would lie by any person whose right was interfered with; and as the plaintiff, in conjunction with others, has a right of way to the alley, he would have a right of action if there has been intrusion upon it by the defendant, or persons in his employ. It is true, that the defendant has other property lying within the range of the alley, to which the right of way through it is incidental; but the right annexed to those lots, would not extend the right to this lot although it lies alongside of the alley, for this would be changing the rights of the parties to the original grant, and those under whom they claim, and introducing persons who have no right to participate in its use.

      February 1, 1854, verdict for plaintiff for three cents damages, and costs of suit.
    Error was assigned to the charge, and to the answers to points to the same effect.

      Frazer, with whom were Fllmaher and Fordney, for plaintiff in error.
    Shroder did not claim a right to the alley for the property purchased from Withers. As owner of the Metzgar lot at the head of the alley he had the right to the alley, and it was no interference with the right of Brenneman for Shroder to step from the alley into his lower lot, or in coming from said lot to go into the alley. It was said that the hydrant did not interfere with the right of ■way of Brenneman. The action is for an obstruction of the right of way, and not for trespass on the soil; and it was for the jury to say whether there was an obstruction to the right of way.
    It was further said that the Court erred in not permitting it to be proved that the hydrant was not on ground which had been used as a right of way for 45 years, &c.

      Landis and Franklin, with whom was Black, for defendant in error.
    To make an alley an appurtenant to what it was not at the time of the purchase, would be a fraud upon the contract: 1 Wharton 223, Kirkham v. Sharp. Reference was made to the case of Jamison v. McCready, 5 W. & Ser. 140; 6 Whar. 193; 21 Pick. 72; 8 Exch. Rep. 187. Case lies by one having a right of way against an intruder, without proof of actual damage: 4 Barr 486, Williams v. Esling.
    The Court left it to the jury to say whether the right to the alley was connected with the Withers property, and they found that it was not. An encroachment however small is an injury, and for an injury there should be a remedy: 4 Barr 486.
    The authorities of the city have no right to cause hydrants to be erected on private property. It was no defence that others had erected and maintained for a number of years an obstruction in a portion of the alley, which obstruction had been removed. This could not justify the defendant in placing an obstruction in the alley at the same place* The hydrant was in the alley, and in law was an obstruction, no matter what the opinion of a witness may have been.
    June 14,
   The opinion of the Court was delivered, by

Woodward, J.

It is a well-settled rule of law, that if a man have a right of way over another’s land to a particular close, he cannot enlarge it and extend it to other closes, and this whether his right be by user or by deed: Rolle 391, Howell v. King; 1 Mod. 190, Henning v. Burnett; 8 Exch. Rep. 192, Davenport v. Lawson; 21 Pick. 72, Kirkham v. Sharp; 1 Wh. 323, Lewis v. Carstairs; 6 Wh. 207.

The reason of the rule is stated in Howell v. King, and runs through the subsequent cases, that if the law were not so the owner of the close to which the right is appurtenant might purchase an indefinite number of adjoining acres, and annex the right to them, by which the grantor of the way might be entirely deprived of the benefit of his land; a reason which applies with all its force to a private alley like that in respect to which this suit was brought. Entitled to the use of this alley for the purposes of the lot purchased of Metzgar, if Shroder can use it also for the convenience of the lot he purchased from Withers, there is nothing to prevent his use of it in connexion with any other lots he may purchase along the alley, and thus Brenneman may be annoyed with the general use of a right granted only for a special purpose. The right is not personal to Schroder, but appurtenant to his one specific lot, and the necessary limitation of its extent is found in the terms of the grant. It cannot be carried beyond, without invading the reserved rights of the grantor, for which case is the appropriate remedy.

The action was evidently brought to test the rights of the defendant rather than to recover compensatory damages, and therefore he was not injured by the rejection of the evidence contained in the bills of exception.

The judgment is affirmed.

Lewis, J., was absent during the argument.


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    Strohm’s Appeal, or Rush's Estate.
    1. Though where assets are lost by the waste or insolvency of the personal representative, the common trustee of the legatees, the residuary legatee is not alone to bear the loss; but where it arises from a deficiency of assets the residuary legatee cannot require an abatement of specific legacies.
    2. But where there is no evidence of loss by the insolvency of the executor, specific legatees are entitled to payment out of a fund in the hands of the administrator de bonis non of the estate of the testator, which was first submitted for distribution, though there appears to be a fund sufficient to pay their legacy in the hands of an administrator of the estate of the executor; they were not bound to resort to that fund.
    3. A presumption of payment of the specific legacy did not arise in seven years from the death of the person who was entitled to the interest on it during life.
    Appeal from tbe decree of the Orphans’ Court of Lancaster county.

      This was an appeal by John Strohm, for himself and others, from the decree of the Orphans’ Court, confirming the report of an auditor reporting distribution of moneys in hands of Jacob Eehl, administrator de bonis non of Henry Rush, deceased, the net amount for distribution being $724.80.
    Henry Rush died in 1811, having made his will, dated 11th May, 1811, by which, after directing the payment of his debts, he bequeathed to his sister Nancy, intermarried with Henry Kendrick, ¿6400, “ during her lifetime, to enjoy the interest of the same, but not touching the principal; and after her death- to be equally divided between her lawful children.”
    He next devised to his brother, Jacob Rush, two-thirds of his remaining estate — and next bequeathed to his brother John Rush’s four children “all and every part” of his “remaining property.”
    Lastly, he nominated Henry Shearer executor of his will.
    Letters testamentary issued to Henry Shearer, who, on 24th June, 1811, submitted an inventory of personal estate which had come to his hands, amounting to $2984.38-|-. Subsequently, viz., fifteen or more years before the audit, Henry Shearer died intestate, without having rendered any further account of the estate of the testator. In 1852, Sarah Haines received letters of administration de bonis non of the estate of Henry Share. On the 9th February, 1853, she exhibited in the register’s office her account of said estate, showing a balance in her hands due the estate of Henry Share of $1741.81-J-. On the 1st day of April, 1853, Jacob Fehl took out letters of administration de bonis non cum testamento an■nexo on the estate of Henry Rush; and on the 16th day of May, 1853, he exhibited and filed his account in the register’s office, showing a balance in his hands of $767.55, due said estate.
    Nancy Kendrick, the devisee, died about 1845; her will was proved in January, 1845.
    The balance in the hands of Fehl, the administrator de bonis non, was claimed by children and representatives of Nancy Kendrick, as entitled to the ¿6400 legacy on her death. Their claim was resisted by persons claiming under the bequest of the remainder of the estate. On the part of the latter it was contended, before the auditor, that Henry Shearer, the executor, was necessarily trustee of the specific legacy of ¿6400, to put it to interest for the use of Nancy Kendrick during her life, and pay the principal to her children after her death. It was alleged that Henry Shearer received sufficient assets to pay the ¿6400; and having received it, the children of Nancy Kendrick should be referred to his estate, and not to the money in the hands of the administrator de bonis non, which it was alleged on their part had been raised out of the remainder of the estate of Henry Rush, the testator, and should b,e paid to those who were entitled to the remainder of his estate.
    The auditor remarked that the money for distribution was the first portion of the estate of the testator which was submitted for distribution, and that it should be applied to those claiming under the specific bequest of ¿6400. He observed, that if the fund in the hands of Sarah Haines, as administratrix of the estate of Henry Share, be part of the estate of Henry Rush, there could be no injury done by appropriating the balance in the hands of Jacob Fehl to the specific legacy; for when that is paid or provided for, the other fund becomes a part of the residuum of his estate for distribution among the residuary legatees. He accordingly reported a distribution of the amount in question amongst the claimants under the specific bequest in part payment of their claims.
    It appeared that the fund in dispute, in the hands of Jacob Fehl, arose from a charge in favor of Henry Rush, the testator, on real estate left by his uncle, but which money was not payable till the death of Veronica, the widow of the uncle; and that the widow died in 1852, about seven years after the death of-Nancy Kendrick.
    Exceptions to the report of the auditor were filed, which were overruled, and the report was confirmed.
    It was excepted, in effect, that the Court erred in decreeing the fund to the children of Nancy Kendrick, and not to the appellants, who claimed as entitled to the remainder of the estate after the payment of the ¿6400 legacy.

      Herr and ParJce, for appellants.
    It was alleged that Henry Shearer had the ¿6400 in his hands as trustee for the use of the specific legatees, and not as executor; and that his representatives alone were accountable for it: 5 Wharton 242; 4 Id. 184; 1 Watts 370 ; 5 Barr 508; 9 Watts 255; 7 Barr 461. The opinion was expressed that the legacy had been paid during the life of Henry Shearer; but it was alleged that if it had not been, the claimants of the specific legacy should not have been silent till the opportunity of recovering it was lost, and then claim other funds, to, which it was alleged the claimants under the residuary clause were entitled. It was further said that there was no legal evidence submitted that the ¿6400 had not been paid.

      Hllmaher, for appellees.
    It does not appear from the record or evidence in the case whether there was any of the inventoried estate of Rush, the testator, left after his debts and the expenses, of settling his estate were paid. It was alleged that no part of the ¿6400 had been paid. The testator did not appoint a trustee separate from the executor, and it was his duty to see to that bequest. His neglect to file an account cannot prejudice the appellees. They are not claiming the interest, but the principal of the fund ; and claim it out of the first available funds. From 1811, when the. testator died, till 1845, when Nancy Kendrick died, they could not institute proceedings against Shearer or his estate; but those entitled to the remainder of the estate could have instituted proceedings to compel the payment of the ¿6400 legacy in order to remove it out of the way of payment to them of the residue. Though in 1852, about 41 years after the filing of the inventory on the estate of Henry Rush, an administration on the estate of a Henry Share exhibited a fund, the specific legatees were not bound to look to it. If this was the estate of Henry Shearer, the executor of the will of Rush, the appellants can resort to it.
   The opinion of the Court was delivered by

Lewis, J.

It may be conceded for the purposes of this case, that when a question of abatement arises between particular and residuary legacies, there is a difference between a deficiency of assets, and the loss of them arising from the waste or insolvency of the personal representative. In the latter case it has been held that the surplus, after payment of debts and particular legacies, is as much a legacy as any other, and that the residuary legatee has a right to call for an equalization of the loss by abatement. According to Dyose v. Dyose, 1 P. Wms. 305, the loss in such case falls pari passu upon each. A residuary legatee is not less the object of the testator’s bounty than other legatees. On the contrary, the intention is, generally, to give him more instead of less than the others, and it would rarely accord with that- intention to throw upon him exclusively all the losses arising from the misfortunes or misconduct of the common trustee. Where there is no loss arising from these causes, but a mere deficiency of assets, it is a necessary result that he cannot call for an abatement. He gets the residue, whether it be more or less, and he can claim no more. In this case, there is no evidence that the assets were wasted by the executor. On the contrary, there is a balance of $>1900.38 in the hands of his administratrix de bonis non, &c. If any portion of this fund belonged to the estate of Henry Rush, it was the duty of the administrator de bonis non, &c., of that estate, to collect it, sect.. 31, Act 24th February, 1834. The presumption is that he has done his duty in this respect, and that the balance in his hands is all that remains of the personal estate after payment of debts. This is the only fund before us for distribution, and the appellees have a right to their legacy out of it. Conceding that there is another fund in the hands of Henry Share’s representative, out of which they might obtain satisfaction, would not better the case of the appellants. The appellees are not bound to resor-t to it.

The appellees were not entitled to their legacy until after the death of their mother in 1845. A sufficient time has not elapsed since the legacy was demandable, to raise a presumption of payment.

The decree of the Orphans’ Court is affirmed.

Decree affirmed.