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Opinion by STOWE, P. J.

any established principles of law, and influenced I am of opinion that under the will of John by such consideration I have come to the foreAdams the estates of the married daughters going conclusion, and think the plaintiff enwere separate use trust, and that upon the death titled to judgment. of the mother the interest vested in them under For plaintiff in error, Messrs. W. W. Thomson the provisions of the will. The will converted, and Knox & Reed. the land into personalty but did not prevent the contra, Messrs. Whitesell & Son and Slagle & fee from descending to the heirs in the interim. While it is true that the married women could not dispose of or incumber their estate because

PER CURIAM. Filed October 25, 1882. of the trust, yet it by no means follows that they We affirm this judgment upon the opinion of may not exercise a power of election which the the learned court below. law recognizes to exist in ordinary legatees to

Judgment affirmed. take the land itself instead of the product when sold. I cannot see why any construction should

BRIGHT'S APPEAL. be given to a use trust which would interfere with such right. The land is of a more sub Construction of a will-A direction to the executors to stantial character, and under any circumstances

sell a farm after the death or marriage of widow works

a conversion of the real estate, and when so qualified, must be worth to the legatee as much as the

the following clause: “I also bequeath to the said money for which it would sell, and it seems to children the farm on which I now reside, subject to me entirely consistent with the protection of the estate of my widow in the same, etc.," does not the wife that she should be allowed to accept

operate as a devise, but the children take as legatees, the land instead of the money. This would also

not as devisees. appear to be a reasonable deduction from the Appeal of James W. Bright from the decree provision in the will making the receipt of of the Orphans' Court of Clinton county. the wife a proper acquittance to the executor. John Harleman was the owner of several There is nothing in the principle of use trusts tracts and pieces of land, including a valuable which militate against such a right. The sole farm in Bald Eagle township, Clinton county, purpose is to protect the wife from the power of Pennsylvania, on which he resided for many the husband, and her control and use of the years prior to his death. He was a married property should not be restricted further than | man, but had no children. He took into his is necessary to that end. The mode of its use family Thomas H. Miller when he was an inand the power of the wife over it when once | sant and cared for him as his own child. He vested in her is controlled for her benefit; the made his will December 3, 1859, which was proquestion as to whether the land shall be sold or | bated January 31, 1860, soon after his death. whether she will take it herself, waiving the By the will he provided that his wife should sale by the executors, is a proper subject for her have certain personal property and the homeown determination. There can be no possible stead farm for her life, if she remained his prejudice to her interest by so holding; on the widow; that the balance of his personal propcontrary it may be greatly to her advantage. erty and certain designated parts of his real The will provides for her receiving the money estate should be sold for the payment of his and acquitting the executor. Her right to re- debts. The homestead farm was also directed ceive is absolute, it is only after she becomes the to be sold, but not during the lifetime of his owner that the trust is interposed. Why may wife if she remained his widow, and not under she not receive the land instead of the money any circumstances before the first day of April, and also acquit the executor? If she may, then 1866, and out of the proceeds of the whole his the right to partition is an incident to the co-debts, the expenses of settling the estate, and tenancy, and both law and equity will recognize certain legacies to Lucinda Harleman, Margaret a partition such as was made in this case and Moore, Elizabeth Berry and Thomas H. Miller, by which the interest of the plaintiff was set were to be paid, and the balance, so far as anyaside in severalty, and his title to the land in thing might remain of the proceeds of the sale question will be perfect. The question is per- of the real estate to be sold before the first of haps not free from doubt, but the circumstances April, 1866, was bequeathed to the children of of the case and particularly the fact that the his brothers, Thomas Harleman, Jesse Harleinterests of a number of persons will be seriously man, and his sister, Margaret Berry, and if any affected by a different conclusion, make a case or all of the proceeds of the sale of the mansion such as will induce a court to sustain the plain- farm should remain after the payment of his tiff's title, if it can be done without violating debts, the expenses of settling up the estate and the payment of the said legacies, the same was hand, it was claimed by the children of the to be given to the said children of his brothers brothers and sister of the testator that the manand sister, after paying therefrom said legacy to sion farm was devised to them, and that they Margaret Moore, which was specifically directed took it under the will as real estate, subject only to be paid only out of the proceeds of the sale of to the life-estate of the widow and the payment the mansion farm. The will provided, as to the of the legacy to Margaret Moore of $200, and legacy of Thomas H. Miller: "I give and be that the estate in said farm vested in them im. queath to Thomas H. Miller, who has lived mediately upon the death of the testator. with me from infancy, the sum of four thou-! The auditor determined that inasmuch as it sand dollars, to be paid to him in preference and would require a portion of the proceeds of the before every and all other legacies in this will sale of the mansion farm (a balance of wbich bequeathed, as soon after the first day of April, only remained in the bands of the executor for 1866, as my executors can with prudence con- distribution) to pay Tnomas H. Miller, and convert my real estate into money, provided he cluding that said farm passed, as claimed by remains on the farm as he has heretofore done the children of the brothers and sister of the until the first day of November, 1860."

testator, to them under the will and vested in Miller did remain, working on the homestead them immediately upon the death of the testafarm after the death of the testator and until tor, as real estate, refused to distribute anything the time designated in the will, and so the to Thomas H. Miller, but distributed the whole auditor found, who also found that the testator to William Harleman Charles Harleman, John bequeathed said four thousand dollars to Thomas S. Harleman, Julia Ann McGhee, Thomas

H. Miller, “to be paid to him in preference and Harleman, James Harleman, William Berry, before any and all other legacies in said will | Landis Berry, Philip Berry, Elizabeth Crays, bequeathed, as soon after the first day of April, Jesse H. Berry and Franklin Berry, the chil1866, as his executors could with prudence con dren of his brothers, Thomas Harlemand and vert his real estate into money,'' to which find- Jesse Harleman, and his sister, Margaret Berry. ings of the auditor there was not any exception. To this he excepted ; the court overruled the ex

The auditor also found that the proceeds of ceptions; and James Bright, to whom Thomas the sales of the personal property and of the real | H. Miller had assigned his interest for a valuaestate to be sold before the first of April, 1866, ble consideration on the day of — 184, were insufficient to pay the debts and the ex-appealed, and is here to ask that the preference penses of settling up the estate and said legacies given Mr. Miller by the will of the testator to Lucinda Harleman, Elizabeth Berry and should be enforced, and that he should be paid, Thomas H. Miller; that to pay Thomas H. Mil- as expressly provided, in preference to all others ler in full would require part of the proceeds of named or described in the will. the sale of the mansion farm; that the widow | For appellant, W. C. Kress, Esq. remained a widow and died in 1875, and that contra, Messrs. Cline G. Furst, J. R. Youngthe executor sold the mansion farm on the first man and Charles Corss. day of June, 1876, to Lafayette Mosher, for a sum which, with the interest, amounted, on the Opinion by PAXSON, J. Filed October 2, 1882. 21st day of April, 1879, to $8,007.56. This sum! If there is anything clear in the will of John was included in the last account filed by the Harleman it is that he intended the legacy to executor, which showed a balance of $5,292.75 Thomas H. Miller should be paid in full. He in the hands of the executor for distribution, says, it sball “be paid to him in preference and and the court appointed T. T. Abrams, Esq., before every and all other legacies in this will auditor to make distribution of said balance. bequeathed." Language could not be more exBefore the auditor it was claimed on the one plicit. Nor has the testator left us in any doubt side, in behalf of Thomas H. Miller, that the as to his reason for this preference. He was whole estate (subject to the widow's life-estate) childless, and had taken Mr. Miller to bis home was converted into personalty and disposed of when an infant and cared for him as his own by the testator in legacies as personal property, child. In his will he speaks of him as one and that over all the legatees Thomas H. Miller “who has lived with me from infancy." was to be preferred and paid fully, even should The distribution made by the auditor and conpayment to him exhaust the entire estate, and firmed by the court postpones Miller's legacy. that to deny this would be to disregard the ex- | He appears to have received something on acpress directions of the testator and render the count of a former distribution, but how much is clause of his will in relation to the legacy to not stated. The present is a final account, and Mr. Miller of no effect whatever. On the other | if Miller's legacy is not paid now it never can be.

The error into which the auditor and court this will bequeathed." It follows that Miller below fell was in holding that the homestead must be paid in full before either Margaret farm was devised to the nephews and nieces of Moore or the nephews and nieces. The order the testator as heirs at law. That it was con- of distribution will be as follows: (1.) The verted by the will is too plain for argument. | legacy to Thomas H. Miller. (2.) The legacy The testator directed all of his real estate to be to Margaret Moore. (3.) The balance to the sold for the payneut of debts and legacies. nephews and nieces, share and share alike. Some of it he directs to be sold immediately. The decree is reversed at the costs of the apSo much of it as was not necessary for the pay- | pellee and distribution ordered in accordance ment of debts he directed should not be sold with the foregoing. until the first day of April, 1866. The homestead farm he devised to his wife during her

SHEAFFER v. CLENDENIN. life or widowhood; if she remained his widow it could not be sold until after her death; if she The relation of co-Bureties is one of mutual trust and condied or married prior to 1866 it could not be sold

fidence, and from it springs their liability to contributo

equally to the payment of their principal's debt, as well until that period. He gave a legacy of $200 to

as their right to equally participate in any indemnity Margaret Moore, “to be paid to her out of the that may be obtained from him, directly or indirectly, proceeds of the farm on which I now reside by either or all of them. when it shall be sold according as I shall herein- The principal is equally bound to indemnify all his sure

ties alike, and each of them has an equal and just claim after direct." The after direction was as fol

upon him for that purpose. lows: “I also bequeath to the said children the farm on which I now reside, subject to the estate

Error to the Court of Common Pleas of Cumof my widow in the same, which I have herein

berland county. before bequeathed to her. And at the death or Opinion by STERRETT, J. Filed October 4, 1882. marriage of my said widow, Rachel Harleman, The parties to this suit were accommodation I desire my executors or the survivor of them indorsers of a note made by Ephraim Cornman to sell the said farm, and I hereby authorize for $1,010.78. After it had been reduced by him and empower them to make title in fee to pur- to $524.30 they contributed equally to the pay. chasers for the same, and divide the proceeds ment of that balance and lifted the note. About equally among the said children, giving them the time it was indorsed, Mrs. Cornman, wife share and share alike, after deducting the legacy of the maker, united with her busband in asbequeathed to Margaret Moore."

signing to the defendant, Clendenin, $1,200 of Here was an express direction to sell and di- a judgment which she then held against her vide the proceeds among his pieces and nephews. | husband. It depended upon no contingency except time. There was a conflict of testimony as to whether It left nothing to the discretion of the execu- the assignment was intended to indemnify both tors. It is true the testator bequeathed the sureties or only the one to whom it was made. farm to the children subject to the life-estate of Cornman and his wife both testified it was for the widow, but this was intended as a gift of the benefit of both sureties, but Clendenin swore the proceeds thereof after deducting the legacy that it was for the benefit of himself alone. The to Margaret Moore, as plainly appears in the question of fact thus raised was submitted to the concluding portion of the paragraph quoted. jury, and they found that the judgment was That the direction to sell the farm worked a assigned for the benefit of Clendenin alone to conversion of the land into money is plain from secure him against loss as indorser of the Cornall the authorities. I need only to refer to the man note. After the note was lifted, Clendenin recent cases of Laird's Appeal, 4 Norris, 339, demanded and received from the assigned estate and Jones v. Caldwell, 1 Outerbridge, 43. The of Cornman a dividend of $247.75 on the portion children referred to took as legatees and not as of the judgment assigned to him as above stated. devisees. They took money, not land.

This suit was brought by Sheaffer, his co-surety, It is evident the testator was mistaken as to for half of that sum, and on the trial a verdict the value of his estate, and that all the legacies was taken for the amount claimed, subject to cannot be paid. Under these circumstances the opinion of the court on the question of law which of them is to be postponed or abated ? raised by the points presented by both parties. Certainly not the legacy to Miller. He was not Judgment was afterwards entered for the demerely the principal object of the testator's fendant non obstante veredicto, and thus arises bounty, but as to him the latter expressly de- the question involved in this contention. clared that his legacy shall be paid "in prefer The relation of co-sureties is one of mutual ence and before every and all other legacies in I trust and confidence, and from it springs their liability to contribute equally to the payment

BUDD v. BUDD. of their principal's debt, as well as their right

In an action of ejectment where the defendant claimed to equally participate in any indemnity that

title under the statute of limitations, evidence was may be obtained from him, directly or indi offered to show his adverse exclusive possession. Held, rectly, by either or all of them. The principal a mistake to suppose that any evidence was necessary. is equally bound to indemnify all his sureties

In a deed of release from A. to B., no consideration was

mentioned, and upon appeal it was assigned for error alike, and each of them has an equal and just

that evidence had been admitted to show what was the claim upon him for that purpose. In every consideration. Held, it was entirely right to submit to point of view it would be grossly unjust and the jury, upon all the evidence, what the considerainequitable for one surety, without the consent tion was. of the others, to derive any exclusive benefit Error to the Court of Common Pleas of Westfrom the act of their principal in providing any moreland county. kind of indemnity which he might and ought This was an action of ejectment brought by to have provided for the common benefit of all. Joseph Budd against John Budd and Nehemiah This principle is clearly ruled in Agnew v. Bell, Finley, for seventeen acres of land in Rostraver 4 Watts, 31. It may well be that, where a township, Westmoreland county. stranger to the transaction gratuitously and of February 22, 1785, a warrant was issued to his own accord reimburses or indemnifies one Joseph or Joshua Budd, plaintiff's father; no of several sureties, the others have no equitable patent was issued for the land until March 7, claim on the gratuity thus bestowed for his in- 1829, when a patent was issued to George Bendividual benefit without the aid or procurement nett and the administrators of Joseph Budd, of their principal, but that is not the case before deceased, for this same tract, the survey upon us. Cornman proposed to obtain and did pro- which patent showed the tract to contain sixtycure from bis wife the security that was assigned six and one-half acres (664). to the defendant. If the latter had collected the Bennett's interest afterward passed to the dividend on the judgment before the note was Budd's, and on the 8th November, 1847, the paid he would have been bound to apply the other heirs of Josepb Budd, deceased, executed amount so received to the note, and thus it a release to Joseph Budd, the plaintiff, the rewould have inured to the benefit of both sureties. | lease reciting the land mentioned in the patent. He was liable to his wife to the extent that the By this patent and release the legal title to the proceeds of her judgment were used in paying whole sixty-six and one-balf acres became vested his debt. In the absence of anything to show in Joseph Budd, the plaintiff, and part of this that the portion of the judgment assigned was tract is the seventeen acres in dispute. intended as a mere gratuity, we cannot presume John Budd, one of the defendants, was a son it was a gift. On the contrary, the presumption of Benjamin Budd, who, in his lifetime, owned is that he was accountable to her for so much a tract of land adjoining the sixty-six and oneat least of ber security as, at bis request, was half acres as did also the plaintiff. At the deapplied to his use. If Cornman had borrowed cease of Benjamin Budd, his lands, including $247.75 from his wife, or from a stranger, to re- the seventeen acres in dispute, were allotted to imburse Clendenin for his loss, the transaction, Job Budd, one of the defendants, whose inin principle, would have been precisely the terest therein was afterwards sold at sheriff's same. He satisfied part of his indebtedness to sale to Nehemiah Finley, the other defendant. Clendenin and at the same time incurred a cor- Joseph Budd on the 27th May, 1879, brought an responding liability to his wife. Practically the action of ejectment against the defendant for indemnity in which plaintiff claims to partici- this seventeen acre tract and to prove title, pate was furnished to one of the sureties by offered in evidence the patent above referred to, their principal, and just to that extent was the and the release to him by the other heirs of ability of the latter to reimburse the other surety Joseph Budd, the elder, for the sixty-six and lessened.

one-half acres, part of which is the land in disThe plaintiff was entitled to an unqualified pute, and then rested. affirmance of his point.

The defendants, one of whom was the son of Judgment reversed, and judgment is now en- Benjamin Budd, one of the heirs who had retered on the verdict in favor of the plaintiff for leased to Joseph Budd, the plaintiff, by deed of $127.56, with interest from October 6, 1881, the the 8th November, 1847, set up a claim to this date of the verdict.

land, on the ground of the statute of limitations, For plaintiff in error, S. Hepburn, Jr., Esq. to maintain which they offered evidence of ad

Contra, Messrs. John S. Cornman and W. F. verse exclusive possession, and also evidence to Sadler.

show that although no consideration had been

mentioned in the deed of release to Joseph Budd, third point, which point and answer are as folthe plaintiff, there was an understanding be lows: That the deed of Benjamin Budd to tween said plaintiff and Benjamin Budd, father Joseph Budd in 1847 for sixty-six and one-half of the defendant, that he, Joseph Budd, in con- acres was necessary to complete the title of the sideration of said release, should reconvey to | latter to thirty acres of the same, and is not inBenjamin Budd the seventeen acres in dispute. consistent with a promise on his part to release

The court below charged, that if the jury be- to Benjamin the seventeen acres in dispute, and lieve from all the evidence, Joseph Budd put if he allowed Benjamin to claim, use and occupy Benjamin Budd into possession of this disputed it from that time on, he cannot now recover. land, and if he allowed him to hold, occupy, Answer of the court.-The deed itself, being claim and use it as his own, in such manner as without consideration on its face, it is proper the land could be used from its quality, character for the jury, from all the evidence, to inquire and nature; and if he so took it in pursuance what the consideration was, and if they believe of this arrangement between himself and Joseph from the evidence that the object of the deed Budd (if there was such an arrangement), and was to complete or aid in completing the title he thus held, claimed, occupied and exercised in the plaintiff, the same would not be inconacts of ownership over it for a period of twenty-sistent of the plaintiff to recover his interest in one years, and Joseph knowing this all along, the land in dispute to Benjamin; and if in purwe instruct you that the statute of limitations, suance of such promise the plaintiff put him in all these things being considered, would be suffi- | possession, or allowed him to remain in possescient in this case. But on the other hand, if sion, and allowed him to claim, use and occupy Benjamin Budd siinply remained there permis- the land as his own, and Benjamin Budd and sively, and did not occupy or claim the land as the present defendants holding under him, did, his own; if he exercised acts of ownership only for a period of twenty-one years, thus claim, permissively, on the part of Joseph Budd, then hold and occupy the land adversely, the plaintiff the statute would not run.

cannot recover. You will observe by this deed of release there Contra, Edgar Cowan, Esq. is no consideration mentioned in it, and there being no consideration on the face, it may be

PER CURIAM. Filed October 16, 1882.

This is in effect a motion for a new trial. proper for you to inquire with regard to the

| There was ample evidence of adverse exclusive consideration which moved these people to make this release. If there was any consideration in

possession to go to the jury. It is a mistake to the deed itself it is our opinion that would be an

suppose that any evidence was necessary. That

is to confound a title under the statute of limitaend to any dispute about the deed itself; but

tions, with a title by settlement. There was no when you have a deed with no consideration,

error in the answer of the court to the defendor a release upon the deed without consideration, we can see nothing improper in the jury

ant's third point. It was entirely right to sub. ' inquiring and informing themselves as to what

mit to the jury upon all the evidence, what was the consideration was. Nor are we of the opin

the consideration of the deed from Benjamin ion that this deed itself would be inconsistent

Budd to Joseph Budd. The case was very fairly with any promise or any arrangement that

submitted in the charge, and we have nothing might have been made between Benjamin and

to do with the question whether their verdict Joseph Budd.

was right or wrong. Judgment affirmed. The jury found for the defendant.

LUSE'S APPEAL.

Messrs. H. P. Laird and J. A. Marchand, for An assignee for the benefit of creditors is charged prima plaintiff in error and below, for specification of

facie with the amount of the inventory. The burden

is upon him to relieve himself from that charge by error, say:

showing that the goods did not sell for the amount for 1. The court erred in refusing the plaintiff's which they were appraised. eighth point, which is as follows: The defend- The report of an auditor confirmed by the court will not ants have failed to make out such a case asl be set aside except for palpable error. would give them title by the statute of limita- Appeal of Samuel Luse, assignee for benefit tions as against the legal title of the plaintiff, of creditors of Illig & Stewart, from the decree although the jury should give full credit to all of the Court of Common Pleas of Greene county. the facts and circumstances of hostile possession | Sometime in April, 1877, Frederick Illig and given in evidence by the defendants and the U. B. Stewart became partners in a dry goods verdict of the jury must be for the plaintiff. and grocery store in Morrisville, Greene county,

2. The court erred in answering defendant's where they continued until April 1, 1878, when

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