Opinion by STOWE, P. J. I am of opinion that under the will of John Adams the estates of the married daughters were separate use trust, and that upon the death of the mother the interest vested in them under the provisions of the will. The will converted the land into personalty but did not prevent the 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 of the trust, yet it by no means follows that they may not exercise a power of election which the law recognizes to exist in ordinary legatees to take the land itself instead of the product when sold. I cannot see why any construction should be given to a use trust which would interfere with such right. The land is of a more substantial character, and under any circumstances must be worth to the legatee as much as the money for which it would sell, and it seems to me entirely consistent with the protection of the wife that she should be allowed to accept the land instead of the money. This would also appear to be a reasonable deduction from the provision in the will making the receipt of the wife a proper acquittance to the executor. There is nothing in the principle of use trusts which militate against such a right. The sole purpose is to protect the wife from the power of the husband, and her control and use of the property should not be restricted further than is necessary to that end. The mode of its use and the power of the wife over it when once vested in her is controlled for her benefit; the question as to whether the land shall be sold or whether she will take it herself, waiving the sale by the executors, is a proper subject for her own determination. There can be no possible prejudice to her interest by so holding; on the contrary it may be greatly to her advantage. The will provides for her receiving the money and acquitting the executor. Her right to receive is absolute, it is only after she becomes the owner that the trust is interposed. Why may she not receive the land instead of the money and also acquit the executor? If she may, then the right to partition is an incident to the cotenancy, and both law and equity will recognize a partition such as was made in this case and by which the interest of the plaintiff was set aside in severalty, and his title to the land in question will be perfect. The question is perhaps not free from doubt, but the circumstances of the case and particularly the fact that the interests of a number of persons will be seriously affected by a different conclusion, make a case such as will induce a court to sustain the plaintiff's title, if it can be done without violating any established principles of law, and influenced by such consideration I have come to the foregoing conclusion, and think the plaintiff entitled to judgment. For plaintiff in error, Messrs. W. W. Thomson and Knox & Reed. Contra, Messrs. Whitesell & Son and Slagle & Wiley. PER CURIAM. Filed October 25, 1882. We affirm this judgment upon the opinion of the learned court below. Judgment affirmed. BRIGHT'S APPEAL. Construction of a will-A direction to the executors to sell a farm after the death or marriage of widow works a conversion of the real estate, and when so qualified, the following clause: "I also bequeath to the said children the farm on which I now reside, subject to the estate of my widow in the same, etc.," does not operate as a devise, but the children take as legatees, not as devisees. Appeal of James W. Bright from the decree of the Orphans' Court of Clinton county. John Harleman was the owner of several tracts and pieces of land, including a valuable farm in Bald Eagle township, Clinton county, Pennsylvania, on which he resided for many years prior to his death. He was a married man, but had no children. He took into his family Thomas H. Miller when he was an infant and cared for him as his own child. He made his will December 3, 1859, which was probated January 31, 1860, soon after his death. By the will he provided that his wife should have certain personal property and the homestead farm for her life, if she remained his widow; that the balance of his personal property and certain designated parts of his real estate should be sold for the payment of his debts. The homestead farm was also directed to be sold, but not during the lifetime of his wife if she remained his widow, and not under any circumstances before the first day of April, 1866, and out of the proceeds of the whole his debts, the expenses of settling the estate, and certain legacies to Lucinda Harleman, Margaret Moore, Elizabeth Berry and Thomas H. Miller, were to be paid, and the balance, so far as anything might remain of the proceeds of the sale of the real estate to be sold before the first of April, 1866, was bequeathed to the children of his brothers, Thomas Harleman, Jesse Harleman, and his sister, Margaret Berry, and if any or all of the proceeds of the sale of the mansion farm should remain after the payment of his debts, the expenses of settling up the estate and the payment of the said legacies, the same was to be given to the said children of his brothers and sister, after paying therefrom said legacy to Margaret Moore, which was specifically directed to be paid only out of the proceeds of the sale of the mansion farm. The will provided, as to the legacy of Thomas H. Miller: "I give and bequeath to Thomas H. Miller, who has lived with me from infancy, the sum of four thousand dollars, to be paid to him in preference and before every and all other legacies in this will bequeathed, as soon after the first day of April, 1866, as my executors can with prudence convert my real estate into money, provided he remains on the farm as he has heretofore done until the first day of November, 1860." Miller did remain, working on the homestead farm after the death of the testator and until the time designated in the will, and so the auditor found, who also found that the testator bequeathed said four thousand dollars to Thomas H. Miller, "to be paid to him in preference and before any and all other legacies in said will bequeathed, as soon after the first day of April, 1866, as his executors could with prudence convert his real estate into money," to which findings of the auditor there was not any exception. The auditor also found that the proceeds of the sales of the personal property and of the real estate to be sold before the first of April, 1866, were insufficient to pay the debts and the expenses of settling up the estate and said legacies to Lucinda Harleman, Elizabeth Berry and Thomas H. Miller; that to pay Thomas H. Miller in full would require part of the proceeds of the sale of the mansion farm; that the widow remained a widow and died in 1875, and that the executor sold the mansion farm on the first day of June, 1876, to Lafayette Mosher, for a sum which, with the interest, amounted, on the 21st day of April, 1879, to $8,007.56. This sum was included in the last account filed by the executor, which showed a balance of $5,292.75 | in the hands of the executor for distribution, and the court appointed T. T. Abrams, Esq., auditor to make distribution of said balance. Before the auditor it was claimed on the one side, in behalf of Thomas H. Miller, that the whole estate (subject to the widow's life-estate) was converted into personalty and disposed of by the testator in legacies as personal property, and that over all the legatees Thomas H. Miller was to be preferred and paid fully, even should payment to him exhaust the entire estate, and that to deny this would be to disregard the express directions of the testator and render the clause of his will in relation to the legacy to Mr. Miller of no effect whatever. On the other hand, it was claimed by the children of the brothers and sister of the testator that the mansion farm was devised to them, and that they took it under the will as real estate, subject only to the life-estate of the widow and the payment of the legacy to Margaret Moore of $200, and that the estate in said farm vested in them immediately upon the death of the testator. The auditor determined that inasmuch as it would require a portion of the proceeds of the sale of the mansion farm (a balance of which only remained in the hands of the executor for distribution) to pay Tnomas H. Miller, and concluding that said farm passed, as claimed by the children of the brothers and sister of the testator, to them under the will and vested in them immediately upon the death of the testator, as real estate, refused to distribute anything to Thomas H. Miller, but distributed the whole to William Harleman Charles Harleman, John S. Harleman, Julia Ann McGhee, Thomas Harleman, James Harleman, William Berry, Landis Berry, Philip Berry, Elizabeth Crays, Jesse H. Berry and Franklin Berry, the children of his brothers, Thomas Harlemand and Jesse Harleman, and his sister, Margaret Berry. To this he excepted; the court overruled the exceptions; and James Bright, to whom Thomas H. Miller had assigned his interest for a valuable consideration on the - day of ——, 18—, appealed, and is here to ask that the preference given Mr. Miller by the will of the testator should be enforced, and that he should be paid, as expressly provided, in preference to all others named or described in the will. For appellant, W. C. Kress, Esq. Contra, Messrs. Cline G. Furst, J. R. Youngman and Charles Corss. Opinion by PAXSON, J. Filed October 2, 1882. If there is anything clear in the will of John Harleman it is that he intended the legacy to Thomas H. Miller should be paid in full. He says, it shall "be paid to him in preference and before every and all other legacies in this will bequeathed." Language could not be more explicit. Nor has the testator left us in any doubt as to his reason for this preference. He was childless, and had taken Mr. Miller to his home when an infant and cared for him as his own child. In his will he speaks of him as one "who has lived with me from infancy." The distribution made by the auditor and confirmed by the court postpones Miller's legacy. He appears to have received something on account of a former distribution, but how much is not stated. The present is a final account, and if Miller's legacy is not paid now it never can be. this will bequeathed." It follows that Miller SHEAFFER v. CLENDENIN. The relation of co-sureties is one of mutual trust and confidence, and from it springs their liability to contribute equally to the payment of their principal's debt, as well as their right to equally participate in any indemnity that may be obtained from him, directly or indirectly, by either or all of them. The error into which the auditor and court below fell was in holding that the homestead farm was devised to the nephews and nieces of the testator as heirs at law. That it was converted by the will is too plain for argument. The testator directed all of his real estate to be sold for the payment of debts and legacies. Some of it he directs to be sold immediately. So 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 life or widowhood; if she remained his widow it could not be sold until after her death; if she died or married prior to 1866 it could not be sold until that period. He gave a legacy of $200 to Margaret Moore, "to be paid to her out of the proceeds of the farm on which I now reside when it shall be sold according as I shall hereinafter direct." The after direction was as follows: "I also bequeath to the said children the farm on which I now reside, subject to the estate of my widow in the same, which I have hereinbefore bequeathed to her. And at the death or marriage of my said widow, Rachel Harleman, I desire my executors or the survivor of them to sell the said farm, and I hereby authorize and empower them to make title in fee to purchasers for the same, and divide the proceeds equally among the said children, giving them share and share alike, after deducting the legacy bequeathed to Margaret Moore." Here was an express direction to sell and divide the proceeds among his nieces and nephews. It depended upon no contingency except time. It left nothing to the discretion of the executors. It is true the testator bequeathed the farm to the children subject to the life-estate of the widow, but this was intended as a gift of the proceeds thereof after deducting the legacy to Margaret Moore, as plainly appears in the concluding portion of the paragraph quoted. That the direction to sell the farm worked a conversion of the land into money is plain from all the authorities. I need only to refer to the recent cases of Laird's Appeal, 4 Norris, 339, and Jones v. Caldwell, 1 Outerbridge, 43. The children referred to took as legatees and not as devisees. They took money, not land. It is evident the testator was mistaken as to the value of his estate, and that all the legacies cannot be paid. Under these circumstances which of them is to be postponed or abated? Certainly not the legacy to Miller. He was not merely the principal object of the testator's bounty, but as to him the latter expressly declared that his legacy shall be paid "in preference and before every and all other legacies in The principal is equally bound to indemnify all his sure ties alike, and each of them has an equal and just claim upon him for that purpose. Error to the Court of Common Pleas of Cumberland county. Opinion by STERRETT, J. Filed October 4, 1882. The parties to this suit were accommodation indorsers of a note made by Ephraim Cornman for $1,010.78. After it had been reduced by him to $524.30 they contributed equally to the payment of that balance and lifted the note. About the time it was indorsed, Mrs. Cornman, wife of the maker, united with her husband in assigning to the defendant, Clendenin, $1,200 of a judgment which she then held against her husband. There was a conflict of testimony as to whether the assignment was intended to indemnify both sureties or only the one to whom it was made. Cornman and his wife both testified it was for the benefit of both sureties, but Clendenin swore that it was for the benefit of himself alone. The question of fact thus raised was submitted to the jury, and they found that the judgment was assigned for the benefit of Clendenin alone to secure him against loss as indorser of the Cornman note. After the note was lifted, Clendenin demanded and received from the assigned estate of Cornman a dividend of $247.75 on the portion of the judgment assigned to him as above stated. This suit was brought by Sheaffer, his co-surety, for half of that sum, and on the trial a verdict was taken for the amount claimed, subject to the opinion of the court on the question of law raised by the points presented by both parties. Judgment was afterwards entered for the defendant non obstante veredicto, and thus arises the question involved in this contention. The relation of co-sureties is one of mutual trust and confidence, and from it springs their BUDD v. BUDD. liability to contribute equally to the payment 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 may be obtained from him, directly or indirectly, by either or all of them. The principal is equally bound to indemnify all his sureties alike, and each of them has an equal and just claim upon him for that purpose. In every point of view it would be grossly unjust and inequitable for one surety, without the consent of the others, to derive any exclusive benefit from the act of their principal in providing any kind of indemnity which he might and ought to have provided for the common benefit of all. This principle is clearly ruled in Agnew v. Bell, 4 Watts, 31. It may well be that, where a stranger to the transaction gratuitously and of his own accord reimburses or indemnifies one of several sureties, the others have no equitable claim on the gratuity thus bestowed for his individual benefit without the aid or procurement of their principal, but that is not the case before us. Cornman proposed to obtain and did procure from his wife the security that was assigned to the defendant. If the latter had collected the dividend on the judgment before the note was paid he would have been bound to apply the amount so received to the note, and thus it would have inured to the benefit of both sureties. He was liable to his wife to the extent that the proceeds of her judgment were used in paying his debt. In the absence of anything to show that the portion of the judgment assigned was intended as a mere gratuity, we cannot presume it was a gift. On the contrary, the presumption is that he was accountable to her for so much at least of her security as, at his request, was applied to his use. If Cornman had borrowed $247.75 from his wife, or from a stranger, to reimburse Clendenin for his loss, the transaction, in principle, would have been precisely the He satisfied part of his indebtedness to Clendenin and at the same time incurred a corresponding liability to his wife. Practically the indemnity in which plaintiff claims to participate was furnished to one of the sureties by their principal, and just to that extent was the ability of the latter to reimburse the other surety lessened. same. title under the statute of limitations, evidence was offered to show his adverse exclusive possession. Held, a mistake to suppose that any evidence was necessary. In a deed of release from A. to B., no consideration was mentioned, and upon appeal it was assigned for error that evidence had been admitted to show what was the consideration. Held, it was entirely right to submit to the jury, upon all the evidence, what the consideration was. Error to the Court of Common Pleas of Westmoreland county. This was an action of ejectment brought by Joseph Budd against John Budd and Nehemiah Finley, for seventeen acres of land in Rostraver township, Westmoreland county. February 22, 1785, a warrant was issued to Joseph or Joshua Budd, plaintiff's father; no patent was issued for the land until March 7, 1829, when a patent was issued to George Bennett and the administrators of Joseph Budd, deceased, for this same tract, the survey upon which patent showed the tract to contain sixtysix and one-half acres (664). the Bennett's interest afterward passed to the Budd's, and on the 8th November, 1847, other heirs of Joseph Budd, deceased, executed a release to Joseph Budd, the plaintiff, the release reciting the land mentioned in the patent. By this patent and release the legal title to the whole sixty-six and one-half acres became vested in Joseph Budd, the plaintiff, and part of this tract is the seventeen acres in dispute. John Budd, one of the defendants, was a son of Benjamin Budd, who, in his lifetime, owned a tract of land adjoining the sixty-six and onehalf acres as did also the plaintiff. At the decease of Benjamin Budd, his lands, including the seventeen acres in dispute, were allotted to John Budd, one of the defendants, whose interest therein was afterwards sold at sheriff's sale to Nehemiah Finley, the other defendant. Joseph Budd on the 27th May, 1879, brought an action of ejectment against the defendant for this seventeen acre tract and to prove title, offered in evidence the patent above referred to, and the release to him by the other heirs of Joseph Budd, the elder, for the sixty-six and one-half acres, part of which is the land in dis The plaintiff was entitled to an unqualified pute, and then rested. affirmance of his point. Judgment reversed, and judgment is now entered on the verdict in favor of the plaintiff for $127.56, with interest from October 6, 1881, the date of the verdict. For plaintiff in error, S. Hepburn, Jr., Esq. Contra, Messrs. John S. Cornman and W. F. Sadler. The defendants, one of whom was the son of Benjamin Budd, one of the heirs who had released to Joseph Budd, the plaintiff, by deed of the 8th November, 1847, set up a claim to this land, on the ground of the statute of limitations, to maintain which they offered evidence of adverse exclusive possession, and also evidence to 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 simply remained there permis- | sively, and did not occupy or claim the land as his own; if he exercised acts of ownership only permissively, on the part of Joseph Budd, then the statute would not run. You will observe by this deed of release there is no consideration mentioned in it, and there being no consideration on the face, it may be proper for you to inquire with regard to the consideration which moved these people to make this release. If there was any consideration in the deed itself it is our opinion that would be an end to any dispute about the deed itself; but when you have a deed with no consideration, or a release upon the deed without consideration, we can see nothing improper in the jury inquiring and informing themselves as to what the consideration was. Nor are we of the opinion that this deed itself would be inconsistent with any promise or any arrangement that might have been made between Benjamin and Joseph Budd. The jury found for the defendant. Messrs. H. P. Laird and J. A. Marchand, for plaintiff in error and below, for specification of error, say: 1. The court erred in refusing the plaintiff's eighth point, which is as follows: The defendants have failed to make out such a case as would give them title by the statute of limitations as against the legal title of the plaintiff, although the jury should give full credit to all the facts and circumstances of hostile possession given in evidence by the defendants and the verdict of the jury must be for the plaintiff. 2. The court erred in answering defendant's the land as his own, and Benjamin Budd and the present defendants holding under him, did, for a period of twenty-one years, thus claim, hold and occupy the land adversely, the plaintiff cannot recover. Contra, Edgar Cowan, Esq. PER CURIAM. Filed October 16, 1882. This is in effect a motion for a new trial. There was ample evidence of adverse exclusive possession to go to the jury. It is a mistake to suppose that any evidence was necessary. That is to confound a title under the statute of limitations, with a title by settlement. There was no error in the answer of the court to the defend ant's third point. It was entirely right to submit to the jury upon all the evidence, what was the consideration of the deed from Benjamin Budd to Joseph Budd. The case was very fairly submitted in the charge, and we have nothing to do with the question whether their verdict was right or wrong. Judgment affirmed. LUSE'S APPEAL. An assignee for the benefit of creditors is charged prima facie with the amount of the inventory. The burden is upon him to relieve himself from that charge by showing that the goods did not sell for the amount for which they were appraised. The report of an auditor confirmed by the court will not be set aside except for palpable error. Appeal of Samuel Luse, assignee for benefit of creditors of Illig & Stewart, from the decree of the Court of Common Pleas of Greene county. Sometime in April, 1877, Frederick Illig and U. B. Stewart became partners in a dry goods and grocery store in Morrisville, Greene county, where they continued until April 1, 1878, when |