text:
    W. W. Blake Tobacco Company v. Posluszsy, Appellant.

      Judgment — Opening judgment — Names of parties — -Principal and surety— Forgery.

    A judgment bond was signed by W. Posluszsy as principal, and M. Debinski as surety. Judgment was entered on the bond against “George” (alias W.) Posluszsy and M. Debinski. Debinski’s full name was Martin Debinski. Held, that if there was any substantial discrepancy between the bond and the record of the judgment, as to the names of the parties, the defect could be cured by amendment.
    In a proceeding to open a judgment, valid on its face, based on a petition alleging that the instrument upon which the judgment is founded is a forgery, to which petition there is a fully responsive answer, the defendant is the actor, and the plaintiff is not required to prove the signature of the defendant by the subscribing witness, or account for his failure to produce the witness.
    The exercise of jurisdiction upon rules to open judgment, entered on warrants of attorney, is within the discretion of the court, and an appellate court will not interfere except where there is a manifest abuse of such discretion.
    The appellate court will not reverse an order of the court below in refusing to open a judgment, merely because the lower court did not file an opinion.
    Argued May 10, 1906.
    Appeal No. 53, April T., 1906, by defendant, from order of C. P. No. 1, Allegheny Co.', Dec. T., 1903, No. 76, discharging rule to open judgment in case of W. W. Blake Tobacco Company v. George (alias W.) Posluszsy and M. Debinsld.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      W. J. Bremen, for appellant.
    — Before plaintiff could hold the defendant on account of this bond, defendant having denied under oath that he had signed the said bond, or authorized any other person to sign the same for him, plaintiff was bound to prove the signature of the defendant by the subscribing witness, or account for his failure to produce the witness: Truby v. Byers, 6 Pa. 347; Brobst v. Welker, 8 Pa. 467; Tams v. Hitner, 9 Pa. 441; Williams v. Floyd, 11 Pa. 499; American Underwriter’s Assn. v. George, 97 Pa. 238.
    The proof required for a written instrument under seal, to wit, the evidence of the subscribing witness, not having been produced by the plaintiff upon the rule to show cause, the denial of the signature by the defendant makes it plain that the judgment should have been opened: Shannon v. Castner, 21 Pa. Superior Ct. 294; Com. v. Mellet, 196 Pa. 243; Bucher v. Meixell, 5 Pa. Dist. Rep. 375; Bunnell v. Kintner, 10 Kulp, 421.
    And the court below erred in the further particular that in discharging the rule to open the judgment it did not file an opinion, setting forth at least briefly its findings of fact and the grounds of its decisions : Gump v. Goodwin, 172 Pa. 276.

      B. E. Pettes, of Pettes McAllister, for appellee,
    cited : Kelber v. Plow Co., 146 Pa. 485 ; Jenkintown Nat. Bank’s App., 124 Pa. 337; Com. ex rel. v. Mellet, 196 Pa. 243; Earley’s App., 90 Pa. 321; Wernet’s App., 91 Pa. 319; O’Hara v. Baum, 82 Pa. 416.
    October 5, 1906 :
   Opinion by

Rice, P. J.,

The plaintiff, through its attorneys, caused judgment to be entered against George (alias W.) Posluszsy and M. Debinsld upon a bond and accompanying warrant of attorney for confession of judgment, purporting to have been signed by W. Posluszsy as principal and M. Debinsld as surety. Execution was issued thereon, by virtue of which the goods of the appellant, whose full name is Martin Debinski, were levied upon. Upon his petition setting forth the discrepancies between the bond and the record of the judgment, and denying that he signed or authorized any person to sign the bond, or that he became surety for Posluszsy, and praying that the execution be stayed and the levy upon his goods released, the court granted a rule to show cause why the judgment should not be opened. A responsive answer was filed on behalf of the plaintiff, depositions were taken on both sides, and after hearing, the court, without opinion filed, discharged the rule, from which order Martin Debinski took this appeal.

It is claimed that the court ought to have opened the judgment because of the discrepancy as to the name of the surety, heretofore alluded to, between the bond and the record of the judgment. The answer to this contention is, that, whatever may be his other remedies, the appellant had no standing to move to open the judgment except upon the implied concession that he is. the identical person intended to be made one of the defendants therein, and the evidence adduced at the hearing of the rule leaves no room for doubt that he is the person against whom the plaintiff intended to enter judgment. Moreover, there is no substantial variance between his name and the name signed as surety upon the bond and the warrant annexed thereto. The discrepancy between it and the record of the judgment is one which was plainly curable by amendment, and for the purpose of this proceeding the record may be treated as having been amended accordingly.

Another point very strenuously urged by the appellant’s counsel is, that his client having denied under oath that he had signed the bond, or authorized any other person to sign the same for him, the plaintiff was bound to prove his signature by the subscribing witness, or account for his failure to produce the witness. It is to be observed that this point was not raised at the taking of the depositions as an objection to the admission of evidence adduced by the plaintiff tending to show appellant’s execution of the bond, but is put forward as a con-elusive legal reason for holding that the court erred in not opening the judgment. The cases cited in support of this contention would be applicable if this had been a trial of an action upon the bond in which the plaintiff had offered the instrument in evidence, and the defendant had objected in limine that the execution thereof must be proved by the subscribing witness. But in a proceeding to open a judgment, valid on its face, based on a petition alleging that- the instrument upon which the judgment is founded is a forgery, to which petition there is a fully responsive answer, the defendant is the actor. In very many respects he stands in the place of the plaintiff in a bill in equity, and upon the hearing of the rule to open it is incumbent on him to go forward with the evidence to sustain his allegation, and this may be met by any relevant evidence tending to disprove it. Indeed the defendant’s testimony may be so contradictory in itself as to warrant the court in discrediting it and refusing to act upon it. The court acts as a chancellor and is to exercise a sound legal discretion upon a view of all the evidence. Therefore,- while in such proceeding the omission of the plaintiff to call the subscribing witness is a fact of greater or less significance, depending upon the circumstances, it does not furnish a technical legal reason for opening the judgment without regard to the other evidence.

Passing now from the two specific grounds upon which it is claimed that the judgment ought to have been opened we come to a consideration of the case upon the merits as disclosed by the evidence as a whole. There is one very significant feature of the ease which may be adverted to. It appears that while the appellant, when demand was made upon him, denied the execution of the bond, yet according to the testimony of two apparently reputable witnesses he proposed to pay one-half if the other party to the bond would pay the other half. This offer, assuming that he made it, which he denies, would not by any means be regarded as a conclusive admission of his liability. Standing alone it might possibly be regarded as a mere offer of compromise and therefore not implying an admission of liability to any extent. But the point to which we call attention is that, according to the testimony of these two witnesses, he produced at that time another paper and alleged that that was the paper that he signed and not the paper in question. These witnesses testify positively that the paper thus produced by him was an exact duplicate of the bond in question and that the signature M. Debinski upon both papers was apparently written by the same hand. The appellant alleges that the paper that he produced was not a duplicate of this bond, but was a mortgage. It is thus seen, accepting his statement, that it was within his power to very greatly strengthen his testimony and strongly contradict that of the two witnesses by producing the paper. But he did not produce it on the hearing and his testimony with regard to it is such as, to say the least, weakens his contradiction of these two witnesses. We will not encumber the record by a recital of it, but it undoubtedly impressed the court as it has impressed us in the way we have indicated. There is in addition very positive expert testimony, that the handwriting upon the bond is the same as that upon the petition to open the judgment. Without undertaking to marshal the evidence pro and con, we think the appellant has failed to show an improper exercise of the discretion vested in the court below, such as would justify us in overturning its action. The rule upon the subject is settled by numerous authorities. The exercise of jurisdiction upon rules to open judgments entered on warrants of attorney has always been held to be within the sound discretion of the court. The acts of 1877 and 1891 which provide for an appeal have not changed the law in that respect. As was said in Earley’s Appeal, 90 Pa. 321: “It is a mistake to suppose that the court cannot judge of the weight of the evidence and the credibility of witnesses, but must in every case, where there is a conflict of testimony, send the case to a jury. In equity cases these 'questions may be determined by the chancellor and on appeal his decision is reviewed. We are to determine in all such appeals whether the discretion of the court below has been rightly exercised.” This principle is applicable not only where there is a conflict of evidence concerning an allegation of fraud or of failure of consideration, but also where the petition to open is based upon an allegation of forgery. In Roenigk’s Appeals, 1 Sadler, Supreme Ct. Cases, 286, the court said: “ We are unable to see any difference in principle, in regard to the exercise of a sound discretion, whether the averment be a denial of the execution of the note upon which the judgment was entered, or whether it be a denial of any consideration, or whether it aver a failure of consideration or a fraudulent use of the obligation.” True, it has been held that the two-witness rule does not apply with the same strictness where the genuineness of the defendant’s signature to the instrument upon which judgment was entered is denied, but that the general principle that the court is to exercise a sound legal discretion upon all the evidence applies to such a case is well settled. One of the latest cases upon the subject is Commonwealth ex rel. v. Mellet, 196 Pa. 243. See Essick’s Appeal, 1 Mona. 588, also Koch v. Biesecker, 7 Pa. Superior Ct. 37, where the subject is quite fully discussed and the authorities collated. We refer also to the very recent cases of Augustin v. Wolf, 215 Pa. 558; and McCullough v. Kinnan, ante, p. 557.

The third assignment of error is: “ The court erred in discharging the rule to open the said judgment without filing an opinion setting forth briefly its findings of fact and the grounds of its decision.” In support of this assignment counsel cited Gump v. Goodwin, 172 Pa. 276, where it was suggested that the court in such cases ought to file an opinion setting forth at least briefly its findings of facts and the grounds of its decision. The present case is an appropriate one in which to repeat this suggestion. A brief opinion as above indicated would have aided materially in the disposition of the case in the appellate court. But it is to be observed that in the case cited the matter above referred to was not distinctly held to be reversible error. On the contrary’the decree was affii'med.

Upon a fair view of the whole case from every standpoint we find no sufficient ground upon which to base a reversal of the order.

The order is affirmed and the appeal dismissed with costs to be paid by the appellant.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Thompson to use, Appellant, v. Griggs.

      Gift — A cceptance — Presumption—Evidence.
    Every gift by will or deed is supposed', prima facie, to be beneficial to the donee, and, therefore, the law will presume that the gift is accepted until the contrary is proved.

      Subrogation — Payment—V olunteer — Mortgage.
    When a mere volunteer discharges the debt of another he is not entitled to the remedies which the creditor possesses against the debtor.
    Where a mere volunteer in possession of land pays a portion of the mortgage debt on the land for his own benefit, he is not entitled as against the owner to keep alive so much of the mortgage as he paid; and this is especially the case where he' has agreed in consideration of the use of the land to pay off the mortgage debt.

      Mortgagor — Comortgagor—Payment of debt.

    Where one of two mortgagors has been compelled to pay a balance of debt, interest and costs due on the mortgage in order to save the land, he is entitled to collect one-half of the sum so paid, out of the interest of the comortgagor.
    Argued May 21, 1906.
    Appeal, No. 3, April T., 1906, by plaintiff, from order of C. P. Warren Co.; Sept. T., 1904, No. 11, making absolute rule to subrogate in case of O. P. Thompson to use of A. P. Griggs v. Norman B. Griggs and Maud M. Griggs, now intermarried with Edwin Riquer.
    Before Rice, P. J., Porter; Henderson, Morrison, Orlady, Head and. Beaver, JJ.
    Affirmed.
    Rule for subrogation. Before Lindsey, P. J.
    Issue to determine the amount due on a judgment.
    The-facts are stated in the opinion of the Superior Court.
    At the trial plaintiff offered in evidence an assignment from O. P. Thompson to A. P. Griggs, bearing date August 16, 1904, and filed at No. 11 September Term, 1904, August 17, 1904, for all of the debt and interest and judgment over the sum of #741.03, to wit, the sum of #509.77, for the purpose of showing the ’ assignment of so much of the claim to A. P. Griggs.
    Objected to as irrelevant and immaterial under the issue directed by the court. Objection sustained and exception sealed for the plaintiff. [6]

      On a rule for subrogation the court made the following order:
    And now, April 10, 1905, the rule is made absolute, in so far as to subrogate Maud M. Riquer to the rights of the plaintiff, O. P. Thompson, to the extent of one-half the amount she paid the sheriff, September 7, 1904, to wit, $423.09, with interest thereon from that date, and she is allowed to collect the same out of the interest held by Norman B. Gi’iggs in the mortgaged premises with the costs of this proceeding. [1]

      Errors assigned were (1) in making absolute rule for subrogation ; and (6) rulings on evidence as above, quoting the bill of exceptions.

      B. I. Ball, for appellant.
    — Whenever one, not a mere volunteer, discharges the debt of another, he is entitled to all the remedies which the creditor possessed against the debtor: Wright v. Grover & Baker S. M. Co., 82 Pa. 80; Morris v. Oakford, 9 Pa. 498; Miller’s Appeal, 119 Pa. 620; Haverford Loan & Bldg. Association v. Fire Assn., 180 Pa. 522; Harrison v. Ingham, 3 Walker, 403.

      H. J. Muse, for appellee.
    — Equity will not keep alive a debt or interest for the benefit of a mere volunteer, neither will it keep it alive for the benefit of one who might otherwise be entitled to have it done if there are special circumstances showing an intent to discharge the debt, much less where there is express proof to that effect: Cottrell’s App., 23 Pa. 294; Miller’s App., 119 Pa. 620; Kuhn v. North et al., 10 S. & R. 399.
    October 5, 1906 :
   Opinion by

Morrison, J.,

By deed dated March 25, 1885, O. P. Thompson conveyed to Maud M. Griggs and Norman B. Griggs a farm of about fifty acres in Farmington township, Warren county, Pennsylvania. The consideration of the conveyance was $1,600. The purchase of the farm was negotiated by Eugene S. Griggs, husband of Maud M., and A. P. Griggs, father of Norman B. Griggs. The conveyance was made to Maud M. and Norman B., as tenants in common,"by direction of Eugene S. and A. P. Griggs. Norman B. Griggs went into possession of the farm about the time of the purchase, but only retained this possession for a short time when he left the farm and A. P. Griggs went into possession, as alleged and testified to by Maud M. Griggs, under an agreement that he was to pay the taxes and use the farm and pay the mortgage of $800, in favor of O. P. Thompson, given at the date of the deed, to secure one-half of the purchase money for the farm. A. P. Griggs has ever since retained the possession of the farm, using it under said agreement.

At the date of the deed, one-half of the $1,600 purchase 'money was paid to Thompson by Eugene S. Griggs conveying to him four lots of land in Jamestown, N. Y. An attempt was made herein to show that A. P. Griggs owned two of the lots in Jamestown, but it does not appear that he ever had any paper title to the same nor that he ever had possession of said lots, and the evidence does not identify or individuate the two lots which he claims; and upon this point, it would be entirely unsafe to assume that he had a valid interest in any of the lots conveyed to Thompson.

It clearly appears that by reason of payments made to Thompson by A. P. Griggs on the mortgage, the amount unpaid thereon was reduced, so that on June 25,1904, there was only due and unpaid to Thompson the sum of $734.78. However, a scire facias was issued on said mortgage and on August 16,' 1904, judgment was taken, liquidated and entered thereon for $1,290.80. It further clearly appears that the attorney for O. P. Thompson and A. P. Griggs gave a statement to the attorney for Maud M. Griggs showing that the amount due and unpaid on the_mortgage on June 25, 1904, was $734.78. Soon after the entry of the judgment for $1,290.80, Maud M. Griggs, now Riquer, presented her petition to the common pleas court of Warren county asking that said judgment be opened and she be permitted to defend to all of it in excess of $741.03. Thereupon, on November 10, 1904, on testimony, argument and consideration the court opened the judgment as prayed for and awarded an issue to ascertain the amount due on the mortgage on August 17, 1904, for which judgment should have been entered. In this issue A. P. Griggs was m'ade plaintiff and Maud M. Riquer and Norman B. Griggs, defendants, the pleadings to be as per rule of court. Upon this issue a verdiet and judgment was obtained that the amount due and unpaid on August 17, 1904, was $741.03.

At this'trial counsel for A. P. Griggs produced and offered in evidence an assignment, dated August 11, 1904, from O. P. Thompson to A. P. Griggs for all of the debt and interest on said mortgage above $741.03, to wit, $509.97; the latter sum being the amount A. P. Griggs claimed he had paid to O. P. Thompson during the time he had been in possession of the land.

It was testified to and contended by Maud M. Riquer that A. P. Griggs paid this amount for the use of the farm under the agreement made at the time he went into possession. The court below excluded this offer on the theory that the issue was framed to ascertain the amount due and unpaid on the mortgage on August 17, 1904, and that the rights of A. P. Griggs and Maud M. Riquer could not be determined in the pending issue as to which of them had paid the most on the mortgage. This ruling of the court gives rise to the leading-exception in this appeal (6th assignment).

It is not made to appear that A. P. Griggs ever had any title or pretense of title to the mortgaged land. The deed was made to Norman B. Griggs and Maud M. Griggs by A. P. Griggs’ consent and direction. Every gift by will or deed is supposed, prima facie, to be beneficial to the donee, and, therefore, the law will presume that the gift is accepted until the contrary is proved : Perry on Trusts, 240.

In the present case Norman B. Griggs accepted the title conveyed by the deed and took possession of the land. No trust therefore resulted in favor of A. P. Griggs under the facts in evidence. Norman B. Griggs never divested himself of said title by conveyance, and it remained in him through all of this controversy. If it had been shown that the conveyance was for the benefit of A. P. Griggs, and not a gift to Norman B., then it might be contended with force that the latter held the title in trust for A. P. Griggs; but the evidence does not warrant any such conclusion. The latter having no equity in the property, he is not within the principle giving the right of a codefendant, a surety, a cosurety or other person making payment of an obligation; nor of one who makes payment under a contract or by reason of privity of interest or of estate, to be subrogated.

Up.on the facts in this case, except for his agreement to use the land and pay the mortgage, A. P. Griggs is a mere volunteer, and, therefore, it is not shown, Avith sufficient clearness, that he has a right to keep alive the portion of the mortgage debt which he' paid to Thompson, as against Maud M. Riquer. Norman B. Griggs and Maud M. Riquer are the owners of the land, and we are not satisfied that in the present issue, A. P. Griggs is entitled to be subrogated as to the payments made by him to Thompson during the time he occupied and used the land, as alleged and testified to by Maud M. Riquer, under an agreement to 'pay the mortgage. If he was to pay the mortgage for the use of the land, clearly he is not entitled to be subrogated. If his payments were those of a mere volunteer, then so much of the debt as .he thus paid is extinguished and discharged. When a mere volunteer discharges the debt of another he is not entitled to the remedies Avhich the creditor possessed against the debtor: Cottrell’s Appeal — Bowers’ Est., 23 Pa. 294 ; Miller’s App., 119 Pa. 620 ; Kuhn v. North et al., 10 S. & R. 399. On A. P. Griggs’ own theory he appears to be a volunteer, having no legal or equitable title to the land, and therefore equity will not keep alive so much of the mortgage debt as he paid for his own benefit.

But how does he stand in view of his agreement to use the the farm and pay the mortgage ? No reason exists inlaw or equity why he could not purchase the one-half interest in this land and give it to his son, giving a mortgage thereon and agreeing to pay the mortgage. This is practically the testimony of Maud M. Riquer. If her testimony is accepted, it shows that A. P. Griggs occupied and used the farm ever since the date of the mortgage, making the payments to Thompson under the agreement with Maud M. Riquer, her husband, and Norman B. Griggs, Avithout calling upon any of them for aid and assistance in making the payments or for contribution on account of them. A. P. Griggs must have known that Thompson Avas applying the payments in discharge of the interest and-so much of the debt as was paid. It therefore seems, if there is any doubt that he paid as a mere volunteer, that the payments were made with a- clear intent to discharge the. debt and interest pro tanto. - No matter if A. P. Griggs does claim now that he did not pay on the mortgage to discharge it pro tanto, yet his conduct and the fact that he continued to occupy and use the farm and make payments from time to time, taking receipts as for payments, tend strongly to corroborate Maud M. Riquer and to lead to the conclusion that he did pay intending to discharge the debt and that his present claim to subrogation is an afterthought, resorted to because he failed in an attempt to get Maud M. Riquer to convey her interest to him for $20.00.

At the time Mrs. Riquer paid the' balance of debt, interest and costs due on the mortgage to the sheriff, she was compelled to do so or lose the land. It therefore seems equitable and just that she should have the right to collect one-half of the sum so paid out of the interest of Norman B. Griggs in the land. As- the record then stood she and her comortgagor were presumably equally obligated to pay it: Stroud v. Casey, 27 Pa. 471; Watson’s App., 90 Pa. 426; Ackerman’s App., 106 Pa. 1.

But as the record stands we have devoted more attention to the facts and equities than is necessary. The feigned issue framed and tried before the court and a jury determined that all of the mortgage had been paid except $741.08, and on this verdict a final judgment was entered on April 29, 1905. This judgment does not seem to be appealed from. The record before us is, “ appeal of A. P. Griggs from the judgment and decree of the court of common pleas of Warren county, subrogating Maud M. Riquer to the rights of the plaintiff, O. P. Thompson, to the extent of one-half of the amount she paid the sheriff, to wit, $423.09, with interest thereon from that date, and she is allowed to collect the same out of the interest held by Norman B. Griggs in the mortgaged premises, with the costs of this proceeding.” Now with a final judgment, unappealed from, that the mortgage debt and interest had all been paid on August 17, 1904, except $741.03, and the additional conceded fact that Maud M. Riquer had paid the whole of this sum, with interest and costs, to the sheriff to prevent the sale of the land, how can it be successfully contended that the court erred in making the order above quoted that she be allowed to collect the one-half of this sum out of the interest of her comortgagor in the land in question? If there was error in the trial and judgment to the effect that the mortgage had been all paid, except as above stated, then an appeal ought to have been taken from that judgment and the error corrected. The present appeal will not enable us to reverse that judgment, even if we could find that it is erroneous.

This view of the case relieves us from deciding the questions of the competency of A. P. Griggs, Norman B. Griggs and other witnesses. This question has been discussed at a considerable length by the learned counsel for the respective parties, but we will not consider it further.

A careful consideration of the record, assignments of error and arguments of the counsel does not .convince us that the learned court committed reversible error.

The assignments of error are all dismissed and the order and decree appealed from is affirmed at the costs of the appellant.


text:
    Irvine’s Estate
    (No. 1).

      Will — Legacies—Vested and contingent interest.

    Testator directed as follows: “I give, bequeath and devise all of the residue of my estate, real and personal, not herein otherwise devised or bequeathed specifically, unto my said grandchildren, including those now living and those which may be bom hereafter, if any, unto my sons from their present wives, the personal or such of the real estate as may be converted into personal, to be paid to each as he or she respectively becomes twenty-one years of age, reserving sufficient invested in the lands or under the control of my executors to provide for the payments of any other grandchildren that may subsequently be born, and the realty which passes by this residuary devise to come fully into the possession of the said residuary devises when the youngest shall reach the age of twenty-one years.” Held, (1) that the legacies to the grandchildren vested on the death of the testator, and opened on the birth of each succeeding grandchild to admit those later born; and (2) that the legacies were not divested by the death of any of the grandchildren before they reached the ages of twenty-one years.
    Argued May 21,1906.
    Appeal, No. 126, April T., 1906, by Mary J. Bachop, from decree of O. C. Warren Co., March T., 1903, No. 11, dismissing exceptions to auditor’s report in Estate of Guy C. Irvine, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Exceptions to report of Perry D. Clark, Esq., auditor.
    The facts are stated in the opinion of the Superior Court..

      Errors assigned were in dismissing exceptions to auditor’s report.

      O. E. Bordwell and Edward Lindsey, for appellant.

      B. L Ball and W. W. Wilbur, with them Hinkley, Rice & Alexander, for appellees.
    October 5, 1906:
   Opinion by

Morrison, J.,

This appeal and the appeal of Guy C. Bachop, No. 127, April Term, 1906, and of Rachel L. Briggs, No. 128, April Term, 1906, are from the same decree of the orphans’ court, and the questions raised are, in principle, precisely the same. Therefore, this opinion is intended to apply to each case, although a formal order will be filed in Nos. 127 and 128, April Term, 1906, disposing of said cases.

Guy C. Irvine died August 24, 1868, having made his last will and testament, which was duly probated by the register of wills for Warren county. The will contained among other clauses the following, designated by the auditor respectively (a) and ('b) :

(a) “ I also direct my executors to invest any and all moneys they may receive from any source in good mortgages or judgments in such a way as to be amply secure, the interest thereon to be paid annually, and to be used first in the payments of the legacies and annuities herein bequeathed, and the residue of said interest to be paid by my executors for the uses, benefit and education of my grandchildren aforesaid, whether now living or hereafter to be born, and my daughter, Rachel I. Bachop, share and share alike, except my two grandchildren, Wm. and John Bachop, who are not to have any share or portion of said interest. And I hereby charge my executors with the duty of seeing that the money paid to or for the benefit of my grandchildren is properly expended for the purposes named in this will.
(b) “ I give, bequeath and devise all of the residue of my estate, real and personal, not herein otherwise devised or bequeathed specifically, unto my said grandchildren, including those now living and those which may be born hereafter, if any, unto my sons from their present wives, except the said Wm. and John Baehop, share and share alike, the personal or such of the real estate as may be converted into personal, to be paid to each as he or she respectively becomes twenty-one years of age, reserving’ sufficient invested in the lands or under the control of my executors to provide for the payments of any other grandchild that may subsequently be born, and the realty which passes by this residuary devise to come fully into the possession of the said residuary devises when the youngest shall reach the age of twenty-one years.”'

The questions raised in this appeal are so well stated in the appellant’s history of the case that we cannot do better than to quote the same.

“ The testator left to survive him four children, viz: Rufus W. Irvine, Rachel I. Baehop, A. J. Irvine and James Irvine. There have been born eighteen grandchildren, fifteen of whom lived to reach the age of twenty-one years ; three died in their minority, and two others were not to take under the residuary clause in the will. The names and date of birth and the date of death of such as are deceased appear in the report of the auditor.

“ The executors appointed in the will were qualified and entered upon the duties of their appointment; they paid the annuities and specific legacies provided for in the will, and as each grandchild who was a residuary legatee arrived at the age of twenty-one years, or within a few days thereafter, they paid to such grandchild the sum of $2,500, and in the month of January, 1898, to each grandchild who had arrived at the age of twenty-one years, $1,000. They made no payment under the residuary clause in the will to the representative' or representatives of any grandchild who died before arriving at the age of twenty-one years. They also paid certain sums of interest to such grandchildren as at the time of such payments of interest were under the age of twenty-one years, and to Rachel I. Baehop.

“ From time to time the executors, who were also trustees, filed accounts with the register of wills. These accounts were distribution accounts, as well as statements of the administration of the estate by the executors. The accounts so filed were certified to the orphans’ court, and on May 6, 1898, a final and eighth account was filed. Exceptions were taken to the seventh partial and eighth and final accounts by several of the parties in interest, and the matter so proceeded in that a surcharge was made against the surviving executors, who then resigned their trust, and William J. Knupp, Esq., was appointed administrator, d. b. n. c. t. a.

“ The fund here for distribution, with the exception of $400, surcharged to said Knupp, is the net avails of the amount recovered upon the surcharge of said surviving executors.

“ The administrator filed his account, showing a balance in his hands for distribution. An auditor was appointed to make distribution, and upon his report the questions here at issue arose.

“ The auditor found that the estates of the testator’s three grandchildren who died in infancy had never received any of the residue of the estate of the testator; that the interest of the residuary legatees vested in them upon the death of the testator, and opened to admit future born grandchildren; that the estates of the three grandchildren who died before arriving at the age of twenty-one years were each entitled to receive at the respected dates when said grandchildren would have arrived, if living, at the age of twenty-one years, the same amount that was paid by the executors to those grandchildren who lived twenty-one years, and allowed to each of their estates $8,500 before making any distribution to any of the other grandchildren.

“ The appellant contended that the interest of the residuary legatees was contingent upon the legatee arriving at the age of twenty-one years; that if the interest was a vested one the interest of any grandchild which had vested was divested upon the death of that grandchild; that the distributing auditor could not use the fund for distribution in attempting to equalize former distributions made by the executors, and that if he could the interest on the $1,000 withheld from each-grandchild from the date when the grandchild became twenty-one years of age until 1898, being no part of the estate, could not be used for making such equalization, but should first be paid to the recipient of the $1,000 which had earned it, and in no event could the auditor allow the new claimants more than their proportionate part of the fund for distribution. All of these positions were disallowed by tbe auditor, and upon being raised in the orphans’ court by exceptions were overruled by the court, from which action this appeal was taken.”

The controlling question in this case is whether by the terms of the testator’s will the legacies to the grandchildren vested on the death of the testator, and opened on the birth of each succeeding grandchild, to admit those later born. The learned auditor in an able and painstaking report, confirmed by the decree of the court below, held that the legacies -vested as above stated, and that they were not divested by the death of any of the grandchildren before they reached the ages of twenty-one years. In support of his construction of the will the learned auditor cited and discussed the following cases : Magoffin, Admr., v. Patton et al., 4 Rawle, 113; Bowman’s Appeal, 34 Pa. 19 ; Cooper v. Scott, 62 Pa. 139 ; Page’s Appeal, 71 Pa. 402 ; Pennock v. Eagles, 102 Pa. 290; Little’s Appeal, 117 Pa. 14; Reed’s Appeal, 118 Pa. 215; Swartz’s Appeal, 119 Pa. 208 ; and Yost’s Est., 134 Pa. 426.

On the other hand, the learned auditor cites and considers the following cases relied on by the counsel for the appellant that the legacies did not vest at the death of the testator: King v. King, 1 W. & S. 205 ; Masden’s Est., 4 Wharton, 428 ; Moore v. Smith, 9 Watts, 403 ; Pleasanton’s App., 99 Pa. 362; Sager v. Galloway et al., 113 Pa. 500, and Schuldt’s Est., 199 Pa. 58.

The learned counsel for the appellee, in their argument, cite other cases, among which are Snyder’s Est., 180 Pa. 70; Middleton’s Est., 212 Pa. 119 ; and 29 Am. & Eng. Ency. of Law (1st ed.), p. 441. The latter authority is to this effect: “It is a fundamental rule of construction that in doubtful cases an interest shall, if possible, be construed to be vested in the first instance, rather than contingent; but if it cannot be construed as vested in the first instance, that it at least shall be construed to become vested as early as possible.”

In their brief of argument the learned counsel for the appellant have cited and discussed many other cases in addition to those considered by the learned auditor. A careful and painstaking consideration of the will, the authorities above referred to, and many others, the report of the learned auditor, and the able arguments of the respective counsel, leaves us in no doubt that the interests of the residuary legatees, the grandchildren, in being when the will took effect, as well as those born thereafter, were vested, and that the death of the three children mentioned, who did not reach the age of twenty-one years, did not render their interest contingent, but that their vested interests went to their heirs, and that the learned auditor reached a correct conclusion in holding that these interests stood upon the same legal ground as the vested interests of the grandchildren who survived until they were eaeh twenty-one years of age, the time fixed when they were entitled to their respective legacies.

We have reached the conclusion that the authorities cited and the reasoning of the learned auditor fully vindicate his report. We are not convinced by the able argument of counsel for the appellant that there is reversible error in any of the auditor’s material conclusions. We do not see how the rights of the representatives of' the legatees who died in infancy can be worked out and protected on the theory contended for by the appellant. Entertaining these views, we do not think it profitable to attempt to add anything further in support of the auditor’s report and the decree of the court.

The assignments of error are all dismissed and the decree is affirmed at the costs of the appellant.


text:
    Irvine’s Estate
    (No. 2).
    Argued May 21, 1906.
    Appeal, No. 127, April T., 1906, by Guy C. Bachop, deceased, from decree of O. C. Warren Co., March T., 1903, No. 11, dismissing exceptions to auditor’s report in Estate of Guy C. Irvine, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    October 5, 1906 :
   Opinion by

Morrison, J.,

For the reasons given in the appeal of Mary J. Bachop in opinion this day filed in Irvine’s Estate, ante, p. 614, the assignments of error are all dismissed and the decree is affirmed at the costs of the appellant.


author: Porter, J.,

text:
    Rogers’ Estate.

      Will — Power—Wrongful exercise of power.

    Where a party undertakes to execute a power, but by mistake does it imperfectly, equity will interpose to carry his very intention into effect in aid of those who are peculiarly within its protective power, that is, creditors, purchasers, wives and children; but equity will not lend its aid in favor of a volunteer, nor give any assistance where both the remainder-man, under the alternative devise over of the donor, and the appointees are volunteers, and stand in equal equity.
    Where, under a special and restricted power, an appointment is made in excess of the power, whether the excess renders the appointment wholly void depends upon whether the excess is distinct and separable from the authorized portion of the appointment.
    A power to dispose by will of a certain sum of money out of a larger fund, to one class, and the balance of the fund to another class, with an alternative disposition by the donor of the power upon failure to malee such distribution, is not .validly executed by appointing a larger sum to the one class, and the balance of the fund to members of the second class not mentioned in the alternative disposition made by the donor.
    Argued Dec. 11, 1905.
    Appeal, No. 179, Oct. T., 1905, by Sarah Jane Pierce, from decree of O. C. Chester Co., sustaining exceptions to auditor’s report in Estate of Sarah Jane Rogers, deceased.
    Before Rice, P. J., Beater, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of Charles H. Pennypacker, Esq., auditor.
    Butler, J., hied the following opinion:
    Sarah Jane Rogers by will gave to her husband, Evans Rogers,' the residuary portion of her estate, for life, with power of appointment; directing specifically its disposition in case he should fail to execute the power. Henry Marshall, a cousin of Mrs. Rogers on her father’s side, who is given a smaller legacy under Mr. Rogers’ appointment of the residue than he would take under Mrs. Rogers’ disposition of it, contends that the attempted execution of the power was invalid, and excepts to the failure of the auditor to make distribution in accordance with Mrs. Rogers’ alternative disposition.
    After giving Mr. Rogers the use of her residuary estate for life, Mrs. Rogers’ will proceeds : “ I. do authorize and empower him to dispose of the same by his will as follows r $4,000 to my mother’s family and the balance to my father’s family, in such manner as he may think proper; but in case he fails to make such disposition, I give and bequeath to my mother’s family as followsThe testatrix then completely disposes of her residuary estate to designated persons, all of whom are of her mother’s or father’s families.
    Evans Rogers by his will, reciting the power, gives to members of Mrs. Rogers’ mother’s family $4,500, and to members of her father’s family the balance of her residuary estate.
    Thus, in the attempted execution of the power he apportioned among selected members of the mother’s family a sum $500 larger than that directed, and among selected members of the father’s family a sum $500 smaller than that directed. In neither instance did he make an appointment to the class named, of the fund submitted to his disposition. He did appoint the entire residue of his wife’s estate among members of her father’s and mother’s families, but the power demanded more than this. It divided the residue into two funds, one of $4,000, the other consisting of the balance of the residue, and it enjoined the appointment of the first fund to the one class, and the appointment of the other fund to the other class. As before stated, the donee appointed neither of these funds to the classes named, but other and different funds, in the one instance larger, in the other smaller than provided by the power.
    It must be conceded that the donee defectively executed the power, that his execution of it cannot stand unaided.
    Are the parties interested, are the circumstances, such as could move a court of equity to lend its aid ? If so, is the defect in the execution of this power curable ?
    These, we think, are the two questions presented in the case.
    The appointees here, who must ask the aid of equity, are mere volunteers, collateral relatives, in precisely the same class .as, and having but equal equities with, those who will take in case the appointments fall. This being the situation, the defective execution of the power would not be aided, even if the donee’s transgression could be viewed as a matter of mere form and unsubstantiality. “ On the contrary, when a party undertakes to execute a power, but by mistake does it imperfectly, equity will interpose to carry his very intention into effect in aid of those who are peculiarly within its protective power; that is, creditors, purchasers, wives and children: ” 1 Story Eq. Jur., sec. 170. “But equity will not lend its aid in favor of a volunteer, nor give any assistance where both the remainder-man and the appointee are volunteers : ” 18 Am. & Eng. Ency. of Law, 983, notes 3 & 4. In Margaret Pepper’s Will, 1 Pars. 436, it is declared that equity may aid the execution of a power in favor of children, creditors, or even a charity, but not in favor of volunteers. In Anne Blackford’s Estate, 4 W. N. C. 17, the donee had power to appoint by will her husband’s estate, to such of his relatives as she might see fit. She sought to execute the power, and violated its terms in no other respect than that she appointed one interest in trust. The orphans’ court of Philadelphia held the attempted execution of the power to be utterly void, though it could have made the execution conform exactly to the terms of the power, by simply striking down the trust feature of the one interest, and decreeing that the beneficiary should take an absolute estate along with the other appointees. As here, the appointees were mere volunteers.
    In Porter et al. v. Turner et al., 3 S. & R. 108, the only defect charged in the execution of the power was the donee’s alleged failure to make the appointment, as the power directed, by an instrument under seal. It was held that such mere formal defect would be fatal unless equitable relief could be had. And it is plainly intimated that the appointees, grandchildren, were so remote in relationship as to be mere volunteers entitled to no equitable assistance; but it is said that even assuming for argument’s sake that grandchildren fall under the same rule as children, no relief would be granted, because whether the appointments stood or fell, the property went to the same class. In this case the court say: “ There are cases where equity will aid the defective execution of a power; relief will be granted in favor of creditors, or a wife or children. But this is not one of those cases. The appointment, it is true, is in favor of grandchildren. But even supposing, for argument’s sake, that grandchildren fall under the same rule as children, there would be no reason for an interposition here, because in default of an appointment the estate would go to grandchildren, so that the equity of the contending parties would be equal. The solemnity of a seal is not considered with the same veneration now as formerly. Still this court has no power to dispense with a seal, where the party creating a power has required one. The question is therefore reduced to a single point, viz.: whether there was an appointment under the seal of Mrs. Dupuy. That she intended to make an appointment under her father’s will is certain.”
    In Slifer v. Beates, 9 S. & R. 166, the only defect in the ex-eeution of the power was that the donee instead of joining in a deed with certain trustees whose approval of his disposition of the donor’s real estate was a condition of the power, disposed of the real estate by will. The trustees witnessed his will and promptly after his death, 'by formal deed, expressed their approval of his devise. In holding the execution of the power to be void, the court say: “ It is conceded that if the power be defectively executed, the parties being volunteers, and standing in equal equity, chancery could grant no relief, .nor remedy the defect. . . . The province of the judge is not to inquire Avhether the circumstances required are important or unimportant, essential or ceremonial, reasonable or unreasonable, but what they are. . . . Where forms are imposed on the execution of a poAver, the circumstances may be perfectly arbitrary, unessential in point of effect, to the validity of the instrument, by which the power may be exercised; but being required by the creator of the power, they can only be satisfied by a strictly literal and precise performance, and without recapitulating the cases in which it has been decided there must be this literal adherence, it may be said, that in every case the originality of man can devise, the terms of the power must be strictly complied Avith: Sugden’s Powers, 211, 213.”
    Under the authorities cited, we are clearly of opinion that Mr. Rogers’ appointees have no equities which would move a court of equity to attempt to aid and cure the defectively executed poAver. The appointees are mere vol unteers, collaterals, members of the families of Mrs. Rogers’ mother and father, among which same relatives her will specifically divides the property here involved, upon failure of her husband to execute the power.

      If, for the sake of argument, it be conceded that under the circumstances presented a court of equity would attempt to aid and cure the defective execution of the power, is it curable, could it be sustained ?
    The cases already cited, as well as Wickersham v. Savage, 58 Pa. 865; Horwitz v. Norris, 49 Pa. 213; Fidelity Co.’s Appeal, 4 W. N. C. 265; Pepper’s Appeal, 120 Pa. 235, emphatically impress the propositions that the estate appointed is that of the donor, not of the donee; that the latter is merely a trustee of the former to carry out and execute the orders contained in the power, and has no discretion to vary the conditions imposed.
    These cases, and other authorities which will be cited, make it manifest that even a court of equity, moved by the situation of the parties to lend its fullest aid, cannot sustain an attempted execution of a power where the donee has failed to regard a material feature of his power and the defect cannot be supplied with certainty.
    Mr. Rogers was invested with the special, limited power to apportion among a certain class a certain fund, among another class a certain other fund. Among the designated classes, he was desired and authorized by his wife to apportion the two funds named, and none other. He failed to apportion either of them. Unless this failure can be supplied, unless it is possible now to ascertain from Mr. Rogers’ will how he would have apportioned the two funds in question, to the classes named, manifestly the execution of the power falls, and Mrs. Rogers’ alternative disposition of the property attaches. Mr. Rogers’ power to apportion the funds was purely personal, it cannot be delegated to, nor performed by another. “ It follows from the idea of a personal confidence reposed in the donee, that such a power cannot be delegated. A trustee appointed by the court in place of the donee cannot execute the power: ” 18 Am. & Eng. Ency. of Law, 968-970.
    Mr. Rogers apportions $4,500 among designated members of his wife’s mother’s family. Is this apportionment a certain guide as to how he would have divided the $4,000 among the members of this class ? Clearly not. If before his death he had discovered his error, in apportioning $4,500 instead of $4,000, what would have been his mode of correcting it ? He might have cut out one of the $500 legacies, he might have abated all of the legacies proportionately, he might have preferred a completely new scheme of division. Obviously it is impossible to supply his undeclared apportionment of the $4,000.
    If Mr. Rogers, as directed, had divided the $4,000 among members of the class, and had appointed to them an additional $500 of the residue of his wife’s estate, then, so far as this branch of his power is concerned, it would be fully executed, with an independent excess added, which 'could be stricken down. “ An execution of a power is not void because it exceeds the power, if the part in excess is separable from the part authorized by the power: ” 18 Am. & Eng. Ency. of Law, 921. “ Where there is the complete execution of a power and something ex abundanti added, which is improper, there the execution shall be good, and only the excess void; but where there is not the complete execution of a power, or where the boundaries between the excess and execution are not distinguishable, it will be bad: ” Alexander v. Alexander, 2 Yes. 640. Mr. Rogers did not completely execute the power by appointing $4,000, and then, independently, appoint $500 more ; but appointed $4,500 without indicating at all the “ boundaries between the excess and execution,” without affording any means of locating the $500 excess.
    Turning to the other branch of the power, the distribution of a specified fund to Mrs. Rogers’ father’s family, and considering the possibility of correcting Mr. Rogers’ defective execution in appointing to that class a fund of $500 less than specified, we are confronted, first, with the difficulty that this $500 was erroneously added to the $4,000 distributable to the other class, has entirely lost -its identity in the resultant $4,500 distributed to Mrs. Rogers’ mother’s family, and cannot be distinguished and returned for distribution in her father’s family. But if this difficulty be overlooked, if the matter be viewed as if Mr. Rogers had distributed all of the specified fund to the father’s family, excepting $500, and had erroneously appointed it — the $500 — by itself, to one outside the class, so that its identity would be clear and it would be readily available for appointment within the class, who within that class are to receive it ? Mr. Rogers alone had authority to say where every penny of the entire fund should go within the class, and power to apportion this errant $500 of the fund survived to no one.
    Pie failed to do the essential thing directed by the power, to declare an apportionment of the entire balance of the residue after deducting $4,000 among his wife’s father’s family. Can this failure be supplied ? It cannot, unless his disposition of the part of the fund within the proper class is a certain guide to what his disposition would have been had he confined the entire fund to the class.
    The amount to be distributed, in connection with the number and needs of those within the class to which the distribution is limited, are the considerations that would naturally control a distribution, and it follows that Mr. Rogers’ appointment of a part of the fund within the class, affords no basis for a reliable conclusion as to what his disposition would have been had he appointed the entire fund to the class. Upon the basis of a mistakenly assumed authority to appoint part of the fund outside of the class, thus bringing its members in competition with foreigners, Mr. Rogers has declared to what members of the class and in what proportions a part of the fund shall go; but it does not follow at all if he had done the one thing he had authority to do, had limited the entire fund to the class, that the same member’s would have taken it and in the same proportions.
    If he had discovered his error after executing his will, he might have appointed the $500 to a new legatee within the class, he might have simply applied it to a proportionate increase of the existing bequests within the class, he might have arranged a new and radically different disposition of the fund. As to this we could only conjecture and guess.
    It follows inevitably that Mr. Rogers’ attempted appointment of this fund fails entirely; that upon the basis of a distribution of the whole fund within the class, as commanded by the power, he did not act at all, and he left behind no reliable chart from which it is possible now to ascertain and declare how he would have apportioned the entire fund to the designated class. “ It must not be forgotten when handling such a question, that we are dealing with the property of another, and not with that of the donee of the power. In the donee it is but a trust, and those interested in the estate of William Bingham (the donor) have a right to know that the will of their testator has been actually executed as he intended by the donee of his power. Hence, they are entitled to certainties, not mere conjectures or possibilities: ” Bingham’s Appeal, 64 Pa. 345. This language of the court occurs in a case where the question was whether the donee intended to execute the power, but it illustrates the exactness and certainty essential throughout the execution of a power.
    The reasonings and conclusions we have announced relative to Mr. Rogers’ attempted execution of that branch of the power which concerns Mrs. Rogers’ father’s family, are apparently exactly and fully sustained by the case of Varrell v. Wendell, 20 N. H. 431. There the donee deceased had, through mistake, exercised the power of appointment in favor of some who were, and some who were not the legitimate objects, had distributed part of the fund within the class, and part outside. It was held that the attempted execution was in its entirety utterly void and distribution was directed under an alternative provision of the donor’s will, as if the donee had not attempted to execute the power; the court saying in part: “ Having thus arrived at the conclusion that the testatrix was limited, in the exercise of the power, to an appointment of the fund among such as were of nearest kindred’ to the testator, according to the statute of distributions, a question arises, whether any regard should be had to the action of Mrs. Gardner in giving a part of the property to those persons. In short, should her will, in assigning to certain of those persons a portion of the stock, be regarded as an execution of the power pro tanto, and, if so, final as to those persons ? Her appointment was, as an execution of the power in the extent in which it was intended, invalid. Her act was based upon a misapprehension of her rights and the rights of others in relation to the property, and she proceeded upon the belief that she might' select the objects of her preference from a much wider range than that to which she was legally confined. So that, although it appears from her acts what shares she would, in the discre: tion confided to her, have assigned to the persons in question, as compared with those with whom she did in fact put them in competition, it by no means follows- that, in the narrower competition of claims to which she should have restricted her choice, she would not have assigned to those individuals very different portions. Indeed, it is most probable, and is to be presumed from the plain aspect of the case, that the misapprehension under which she acted very materially affected her conduct with respect to these individuals, and they ought not to be bound by a judgment which proceeds so entirely upon a mistake in a very material matter. . . . It is not to be presumed that, if the donee of the power in the case before us had been made aware of the mistake she bad committed, and had undertaken to correct it, she would, without disturbing the shares that she had apportioned to the next of kin whom she had selected, have simply divided the ill-apportioned residue in equal shares among all the next of kin. The court did that in Sadler v. Pratt, 5 Simons, 45, but there the result was perfect equality among the appointees, and precisely the same that it would have been if the appointment had been entirely vacated. A very different result would follow here, and in cases like the present there is no safety or propriety in presuming what the testatrix would have done had she been aware of all the circumstances.
    “The fact that is practically of most importance is, that she did not execute the power. . . . This is not one of those cases in which, in default of an appointment, the fund goes over and is wholly lost to all of the number of possible appointees. In such a case there would be a reason that does not here exist, for upholding to the extent to which it had been made in favor of the proper objects. How such a case would be decided, it is not necessary to inquire. . . .
    “ The conclusion, therefore, is, that the power of appointment has wholly failed of being executed, the attempted appointment being null and void. The court cannot execute the power. The fund must go, as if the donee had not attempted to execute it, namely, among the next of kin : Atty. General v. Doyley, 7 Ves. 58n ; Reade v. Reade, 5 Ves. 744.”
    In Salter v. Howell, 15 S. & R. 188, the donee was authorized to appoint a fund of $4,000 to her sister’s children. She appointed $8,000 of the fimd contingently to one of her sister’s children, and the remaining $1,000 to a grandchild.
    The court held the attempted execution of the power to be wholly void.

      If in our ease the court would, legitimately, bring back the misappointed portion of the fund, and in lieu of Mr. Rogers declare an apportionment of the whole fund within tbe designated class; then in the case cited, treating the donee’s appointment of $3,000, contingently, to her sister’s child, as an appointment absolutely, the court would have brought back the misappointed $1,000, and instead of having declared the execution of the power void, would have cured and sustained it by making, in the place of the donee, a distribution of the entire $4,000 among the proper class.
    In the case just referred to, the court say: “There is a strictness required in the execution of powers which frequently appears to be harsh; but if once a latitude was allowed, and the direction of the testator as to the appointment was departed from, there would be no rule to go by; and if an implied or presumed intention, even in hard cases, was permitted, and the broad rule of strict adherence to be broken in upon by a minute inquiry into the circumstances of families, it would be highly mischievous and render the judge the distributor of favors, instead of deciding on the words of the testator, or his clear and declared intention.”
    In Neilson’s Estate, 17 W. N. C. 326, the donee was required to appoint to all the members of a class. She made an appointment excluding certain members. The court did not undertake to cure her defective appointment, to make an apportionment for her among all the members of the class, but simply declared her attempted appointment utterly void and decreed a distribution under her donor’s will.
    In Stephenson v. Richardson, 88 Pa. 40, a father devised real estate to his daughter for life and at her death in fee to such of her children as she might appoint. She directed the real estate to be sold, and divided part of the proceeds among certain of her children, and part outside the designated class among grandchildren. Counsel argued that the excess of power in directing the real estate to be sold was immaterial, that the children named by the donee could take interests in the land proportionate to the shares of proceeds he has sought to give them, and that the misappointni'ents to grandchildren could be corrected by dividing those shares among all the children of the donee, or among all those named in her appointment according to their respective interests. It would have been no more difficult to aid and sustain this defective execution of a power, than it would be to sustain the one we are considering. In the case cited the court held the defectively executed power to be void, and distribution was made as if the donee had not attempted an execution.
    • In conclusion, we are of opinion that under the circumstances existing, a court of equity would not seek to aid Mr. Rogers’ defective execution of the power of appointment of the residue of his wife’s estate.
    .His appointees were mere volunteers, and are substantially those who will in default of an appointment take the property under the alternative provision in Mrs. Rogers’ will.
    Further, we are convinced that if the circumstances warranted an effort to aid and sustain Mr. Rogers’ appointments, the effort would fail. He did not apportion the funds submitted to his disposition among the classes designated; he is dead and has left no guide by which we can know his mind upon the question. It inevitably follows that his wife must be disappointed of her purpose to have him appoint the two funds in question to the classes named, and the alternative provision of her will, giving the residue of her estate to these classes according to her own schedule of distribution, attaches.
    We have no doubt that Mr. Rogers’ defective execution of the power conferred by his wife’s will was an inadvertence, and we realize that his appointment of the residue of his wife’s estate, recently made, with a knowledge of the present situation of the members of his wife’s family, ought to be sustained if possible. With these considerations in mind, reluctantly, and only after earnest consideration, has the conclusion been reached, that the attempted execution of the power must be declared void.
    The exceptions are sustained, and the report is referred back to the auditor so that he may make distribution of the fund in his hands as the will of Sarah Jane Rogers provides in the event of her husband’s failure to execute the power of appointment conferred upon him.

      Error assigned was the decree of the court.

      John G. Johnson, with him J. Frank F. Rause, for appellant.—
    The exercise of the power was pro tanto good: Wilkinson v. Duncan, 30 Beavan, 111; Asay v. Hoover, 5 Pa. 21; Lawrence’s Estate, 136 Pa. 354; Zouch v. Woolston, 2 Burrows, 1136; Laurie v. Clutton, 15 Beavan, 65; Eales v. Drake, L. R. 1 Ch. Div. 217.

      Thomas S. Butler, with him Thomas W. Baldwin, for appellee.
    — The execution of the power by the donee is defective and cannot stand unaided: Evans’s Est., 10 Pa. Dist. Rep. 261; Safe Deposit & Trust Co. v. Friend, 201 Pa. 429 ; Sugden on Powers, 452.
    Equity will not aid the defective execution of the power, because there is no meritorious consideration in the appointees of the donee.
    In Pennsylvania, a power may not be exercised in part. The power must be strictly executed. If valid in part, or only partially executed, it fails entirely: Porter v. Turner, 3 S. & R. 108; Horwitz v. Norris, 49 Pa. 213; Wickersham v. Savage, 58 Pa. 365; Pepper’s App., 120 Pa. 235; Smith’s Estate, 4 W. N. C. 265; Neilson’s Estate, 17 W. N. C. 326; Asay v. Hoover, 5 Pa. 21; Lawrence’s Estate, 136 Pa. 354.
    October 5, 1906:
   Opinion by

Porter, J.,

The question depends mainly on the will of Sarah Jane Rdgers. Her intention, and not the intention of Evans Rogers, must furnish the governing rule. The clause of the will of the testatrix which is material to this issue is as follows: “All the rest and residue of my property, real, personal and mixed, I give and bequeath to my beloved husband,' for his use and benefit during his life, .... and I do authorize and empower him to dispose of the same by his will as follows: four thousand dollars to my mother’s family and the balance to my father’s family in such manner as he may think proper; but in case he fails to make such disposition, I give and bequeath to my mother’s family as follows : ” (Here follow pecuniary legacies to a number of members of the family of the mother, each being named, aggregating $4,500) “ and the rest and residue to my father’s family in the following manner: ” (Here follow pecuniary legacies, to individuals named, aggregating $3,000) “the balance to be divided, as follows: one-third to my uncle, William Marshall, his heirs or assigns, and the other two-thirds to my aunt, Susanna Pierce, her heirs or assigns.”

There can be no question that Evans Rogers, now deceased, attempted to exercise the power of appointment thus conferred upon him by the last will of his wife. His will specifically refers to the po'wer of appointment, and declares his purpose to execute it, and then proceeds : “ Therefore in the exercise of this authority and power I give and bequeath said residue (my executors hereinafter named first to pay the collateral tax of five per cent out of said residue) as follows :'” (Here follow pecuniary legacies to individual members of the family of his wife’s mother, aggregating $4,500; and pecuniary legacies to individuals named who were members of the family of his wife’s father, including one legacy of $14,000 to Sarah Jane Pierce, the appellant, which aggregated $23,000, and a bequest of the rest and residue of his late wife’s estate to Sarah Jane Pierce.) The appointments aggregating $4,500 to members of the family of the wife’s mother, and the direction that the collateral inheritance tax on those legacies should be paid out of the fund, practically brought the appointments to the family of the wife’s mother up to $4,725, but the direction that the collateral inheritance tax be paid upon the legacies is separable from the bequests, and may be disregarded.

For reasons satisfactory to herself, and of which she was the only judge, Sarah Jane Rogers empowered her husband to appoint $4,000 of this fund to members of the family of her mother, and the residue thereof to members of the family of her father; but in providing for the case of his failure to make a valid disposition under this power, she bequeathed to individual members of the family of her mother sums aggregating $4,500, and the rest and residue, after deducting the $4,500, she bequeathed to individual members of the family of her father. Evans Rogers, in attempting to execute the power, appointed $4,500 of the fund, instead of $4,000 which he was authorized to appoint, to members of the family of his wife’s mother, and the balance to members of the family of his wife’s father. In selecting the members of the respective families he chose individuals other than those to whom Sarah Jane Rogers bequeathed! aiicl devised the property in case of the failure of her husband .to appoint,-and the property should in accordance with her own will be divided upon the basis of $4,500 to.the 'famiTy of’her-mother and the remainder of the estate to the “family of her father. The will of the donee of the power did hot appoint the estate in the proportions which he was authorized to do, nor, having exceeded the power and divided the property between the respective families, upon the basis adopted by the donor, in- her devise over upon his failure to validly appoint, did he select the individuals to whom the donor bequeathed it in case the division was to be made on that basis. -

The power was special and restricted and was to be strictly executed; if otherwise executed its execution amounted to nothing, as the appointer had no estate in himself to give, and no authority to give but that expressly conferred: Woods’ Estate, 1 Pa. 368; Horwitz v. Norris, 49 Pa. 213 ; Stephenson v. Richardson, 88 Pa. 40 ; Bingham’s Appeal, 64 Pa. 345 ; Wickersham v. Savage, 58 Pa. 365; Pepper’s Appeal, 120 Pa. 235. That the appointments under the will of the donee exceeded his power cannot be questioned. He appointed to individual members of the family of his wife’s mother $500 more than he was authorized to appoint, and to individual members of the family of his wife’s father $500 less than he was authorized to appoint. Where, under a special and restricted power, an appointment is made in excess of the power, whether the excess renders the appointment wholly void depends upon whether the excess is distinct and separable from the authorized portion, of the appointment: Lawrence’s Estate, 136 Pa. 354. The auditor, to whose report exceptions were sustained by the court below, held that the legacies to the members of the family of the mother of the donor should abate proportionally, so as to reduce the aggregate amount of the legacies to the members of that family to $4,000, and that said sum of $500, thus secured, should be awarded to the appellant, a member of the family of the donor’s father, as the legatee of the residue of the donor’s estate, under the will of the donee. That this sum which the donee had appointed to the family of the wife’s mother, in excess of his power, could not be so disposed of seems clear, for the reason that the appellant could only take because it had been validly appointed to her by the donee under his power, whereas the donee had appointed that very money to other parties : Salter v. Howell, 15 S. & R. 188.

The opinion of the learned judge of the court below, which will appear in the report of this case, fully vindicates his conclusion that the appointment made by the donee, to individual members of the family of his wife’s mother, is not separable from the part which was authorized by the power, and that it is not possible to ascertain from the will of the donee how he would have apportioned the $4,000, which under the power he had authority to appoint to members of the family of his wife’s mother. “ Where a party undertakes to execute a power, but by mistake does it imperfectly, equity will interpose to carry his very intention into effect'in aid of those who are peculiarly within its protective power; that is, creditors, purchasers, wives and children : ” 1 Story Equity Jur., sec. 170. But equity will not lend its aid in favor of a volunteer, nor give any assistance where both the remainder-man, under the alternative devise over of the donor, and the appointees are volunteers, and stand in equal equity: Porter v. Turner, 3 S. & R. 108 ; Slifer v. Beates, 9 S. & R. 166.

The intention of the donor, with regard to the power of appointment which she intrusted to her husband, is to be gathered from her whole will. We do not say that had the donee appointed to members of the family of the wife’s mother a sum less than $4,000, that such appointment would not in itself be valid; it is not necessary to decide that question. We are of opinion, however, that as between the authority to appoint to the family of the wife’s mother and the family of her father, the power was not divisible. The authority of the donee to appoint to the members of the family of the wife’s father was confined to “ the balance,” after appointing $4,000, as authorized by the donor, to the family of the wife’s mother. The will ■of the donor clearly indicates that it was not her intention that the donee should appoint to the members of her father’s family until the donee had made such an appointment as her will authorized to the members of the family of her mother. Had the donee expressly declined to appoint the $4,000 to the family of the mother of the donor, he would not have had authority to appoint the amount in excess of $4,000 to the family of the donor’s father, for such an appointment would have come directly in conflict with the alternative bequest over, by the donor, which provided that in case the donee failed to make the disposition which she authorized, certain designated members of her mother’s family should receive in the aggregate $4,500. We are of opinion that the will of Evans Rogers was not a valid exercise of the power of appointment, and that the distribution as made by the court below, under the will ol Sarah Jane Rogers, was correct.

The decree is affirmed.

Rice, P. J., and Morrison, J., dissent.


text:
    Nyhart, Appellant, v. Taylor Borough.

      Road law — Change of grade — Damages.
    A property owner cannot recover damages for. the change of grade of a street where it appears that the only change of grade was at an intersection of another street whose grade had been changed ten years before, that viewers had been appointed at the time to assess damages for such change of grade, and that the owner had made no claim before the viewers.
    ■ A borough is not liable for damages to property resulting from a private individual dumping dirt in a street, where it appears that the borough neither authorized such act before it was done, nor ratified it afterwards.
    Argued Jan. 12, 1906.
    Appeal, No. 50, Jan. T., 1906, by plaintiff, from order of C. P. Lackawanna Ce., March T., 1904, No. 283, refusing to take off nonsuit in case of William S. Nyhart v. Taylor Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from award of viewers.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      S. B. Price, for appellant.
    — The act of 1878 provides a statutory remedy for any injury caused by the grading, changing or altering of borough streets : Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331; Hendrick’s App., 103 Pa. 358; Seaman v. Washington Borough, 172 Pa. 467; Power v. Ridgway Borough, 149 Pa. 317 ; Beltzhoover Borough v. Gollings, 101 Pa. 293; Croll’s App., 2 Penny. 245; City of Williamsport v. Com., 84 Pa. 487; City of Allegheny’s App., 178 Pa. 325.
    The ordinance permitting a change of grade on Main street gave authority to grade Taylor street to conform with Main: Lewis v. Homestead Borough, 194 Pa. 199.
    If the injury were the necessary consequence of the execution of the plan adopted by the municipality in grading its streets, the remedy is by the appointment of viewers under the acts of 1878 and 1891: Curran v. East Pittsburg Boro., 20 Pa. Superior Ct. 590 ; McKee v. Pittsburg, 7 Pa. Superior Ct. 397; Hoster v. Philadelphia, 12 Pa. Superior Ct. 224; Chathan Street, 16 Pa. Superior Ct. 103.

      M. W. Lowry and H. H. Harris, for appellee.
    — The appellant has no standing to recover damages from the defendant borough in this form of proceeding: Trickett, Pennsylvania Borough Law, p. 339 ; Billingfelt v. Borough of Adamstown, 5 Lanc. 107; Jones v. Borough of Bangor, 144 Pa. 638; Freemansburg Borough v. Rodgers, 7 Cent. Repr. 828.
    The grading of Main street in Taylor borough having been made and completed in J.895, the plaintiff's cause of action, if such he had, accrued at the time of the grading, and he is barred by the statute of limitations, from bringing an action against the borough in 1904: Grape Street, 103 Pa. 121; Beck v. Bethlehem Borough, 2 Pa. C. C. Rep. 511.
    October 5, 1906 :
   Opinion by

Porter, J.,

The appellant has been the owner of a lot situate at the corner of Main and Taylor streets, in the Borough of Taylor, since 1883. He presented a petition, on January 28,1904, averring that the borough authorities had changed the grade of Taylor street, without his consent, and thereby caused damage to the property, and praying for the appointment of viewers to estimate and determine the amount of damage which he had sustained by reason of said change of grade. Viewers were appointed and the borough appealed from their award. The plaintiff, upon the trial of the. appeal, proved that the grade of Main street in front of his property had been changed under the authority of a borough ordinance dated May 4,1895, and that the grading of Main street had been actually done upon the ground in 1895. This grading of Main street left the appellant’s property below grade, and the evidence which he produced at the trial was principally directed to showing that his property had been damaged by the grading of Main street. The right of the plaintiff to recover damages for the injury to his property resulting as the natural and necessary consequence of the grading of Main street arose as soon as the work was commenced upon that street in front of his property. The plaintiff admitted at the trial that he knew, at the time the proceeding was pending, in 1895, that there had been a proceeding before viewers to assess the damages and benefits arising from the grading of Main street, that his neighbors had then presented their claims and some of them had recovered damages, but that he presented no claim. The plaintiff was bound to present to those viewers any claim which he had for damages because of injuries resulting as a natural and necessary consequence of the grading of Main street. Even if there never had been a proceeding to assess the damages and benefits arising from the change of grade of Main street, the claim of the plaintiff in the present action for any damages for injuries occasioned by that change was barred by the statute of limitations; the work was done in 1895 and he did not present his petition for the appointment of viewers until January 28, 1904 : Butler Street, 25 Pa. Superior Ct. 357. The plaintiff had not in his petition for the appointment of viewers in the present case invoked the jurisdiction of the court to inquire as to whether his property had been injured or benefited by the grading of Main street. The court below, for these reasons, very properly refused to permit a recovery for damages arising from the grading of Main street.

The plaintiff failed to produce evidence tending to establish that the borough had ever authorized or made any change in the grade of Taylor street, except directly at the intersection with Main street, which was a necessary incident to the grading of Main street, and was done in 1895. That grading was a part of the improvement of Main street, and should have been considered by the viewers who passed upon that improvement: Lewis v. Borough of Homestead, 194 Pa. 199. The only injury to plaintiff’s property shown by the evidence to have resulted from any grading upon Taylor street was by that evidence clearly established to have resulted from, the dumping of earth upon the street by a private individual who was excavating a cellar on the opposite side of the street. That earth was thrown upon the street at a low point where the water had previously flowed, and caused the water for a time to flow upon plaintiff’s lot. There was no evidence that the borough had ever authorized this placing of earth upon the street, nor was there any evidence that the unauthorized act had been subsequently ratified or adopted by the borough. The appellant might, upon the evidence which he produced in the court below, have been entitled to recover damages from the private individual who interfered with the natural flow of the water, but he failed to establish a right to recover against the borough. There was no error in the refusal of the learned judge of the court below to take off the nonsuit.

This judgment is affirmed.