"On March 14, 1888, a few weeks after the decedent's death, Wm. A. Lippe, the son, by writing under seal, reciting that little or no income had accrued from the estate, authorized the executor to pay over to Mrs. Lippe, from the capital of the estate, $2,000, at such times and in such installments as she should desire. On the same day Mrs. Lippe agreed in writing that this sum should be taken from principal, and absolved the executor from liability by reason of the diminution of principal caused by said payment; and on the same day, by another writing, she agreed that the $2,000 should be returned to the estate out of the annual income, provided she should be paid the 'yearly income of $2,000, it being understood that only the surplus of income over said, annual sum of $2,000 is to be applied to making up the amount of loan to me under said agreement.' It was sought by the stepson to surcharge the accountant in the sum of $1,821.18 for overpayments to the widow. To ascertain the merits of this demand, the agreements between the several parties must be looked into. The three papers of March 14, 1888, are to be taken as one instrument. They were executed in view of the fact that very little income had then accrued, and the amount to accrue was uncertain, and they were for the benefit of both parties. The stepson resided with the widow, and both required means for their support. By two of these papers the sum of $2,000 was unconditionally agreed to be paid to the widow out of the principal; by the third writing the widow stipulated the said sum of $2,000 was to be repaid out of any surplus income which should remain after the yearly payment to her of $2,000. This advance to her from principal was a quasi loan, to be returned out of a certain fund, and not to be returned at all if the fund should not exist. In point of fact the net yearly income of the estate never yielded $2,000. It was expressly agreed that the widow was to receive $2,000 per annum, and, if she had chosen to stand upon the strict letter of the contract, she could probably have compelled the payment of that sum, even if it had been required to be made up out of capital. In that event there would be still due her estate $2,903.52, less the payments to the stepson, which she ordered the executor to make. The agreements of March 14, 1888, may, however, be construed to mean that the widow was to receive $2,000 per annum only in case the net income should reach that figure. As it never did, she could claim no more than the actual income. Even then there was still due her at her death $1,063.15, less

the payments ordered to be made to the stepson. The order in question was peculiarly worded. It was to pay the stepson, from October 1, 1888, $50 a month out of income payable to me under the said will;' but the payment was not to be made 'until such time as there shall be an income accruing to me out of said estate, sufficient to pay said sum: and until then it was to be paid only out of the balance of the loan of $2,000, which balance amounted to $600. The executor continued to pay the stepson, after the $600 was exhausted, and until the death of the widow, and his payments aggregated $1,300. If the widow was entitled to $2,000 yearly, then this was an overpayment to the stepson, and against the widow, of $700. No claim was presented on behalf of the widow's estate, for any balance which might be due and unpaid at her death; and the fund for distribution will therefore be awarded in full to William A. Lippe, as residuary legatee. If the stepson was entitled under the order to $1,300; instead of $600, he will receive $1.303.52, which should have gone to the widow. If the stepson was entitled to $1,300, the widow was overpaid $236.85. The executor seems to have honestly dis. bursed the income in accordance with what he thought was the intention of the parties; and, if he committed any error, it seems to have been against the widow, and not against the son. The surcharge is refused. The said balance, $16,659.27, less balance due accountant, but deducted from principal, is awarded to William A. Lippe. And now, June 12. 1891, the account is confirmed nisi. W. N. ASHMAN.

The court below confirmed the adjudication, and its refusal to surcharge the accountant, as asked in appellant's excep tions, is assigned as error. The material parts of the three agreements of March 14, 1888, referred to, are as follows: (1) The first is signed by William A. Lippe, the remainder-man, and empowers the executor "to pay over to Mrs. Augustine Lippe, from the principal of the estate, a sum not exceeding $2,000, at such times and in such amounts as she may desire." (2) The second is signed by Mrs. Augustine Lippe, the life tenant, and provides that the $2,000 above “shall be taken from the principal of the estate * he paid

to me * * * in pursuance of the foregoing instrument in writing;" and further releases the executor from "liability for the diminution of the principal of the estate by that amount, and from all liability to account to me for the income of the said sum of $2,000." (3) The third is also signed by Mrs. Lippe, and agrees that "the said sum of $2,000 shall be returned to the said estate out of the annual income arising from said estate, provided that there is paid to me in each and every year until said sum is returned to said estate the yearly income of $2,000, it being understood that only the surplus of income over said annual sum of $2,000 is to be applied to making up the amount of loan to me under said agreement."

Isaac Elwell and Wm. McGeorge, Jr., for appellant. W. Egbert Mitchell and Samuel Wagner, for appellee.

MCCOLLUM, J. It w was the expectation of the remainder-man and the life tenant that the estate would yield an annual income of not less, and probably more, than $2,000; and the agreement of March 14, 1888, by which that amount of the principal was to be paid to the life tenant, and to be returned to the estate from the annual income in excess of $2,000, was obviously founded upon it. Under this agreement, the life tenant was entitled to all of the principal, which it was stipulated should be paid to her, and to all of the yearly income, because that did not exceed or equal the sum of $2,000. This is the construction of the agreement most favorable to the remainder-man, and it allows to the life tenant $1,063.15 more than she received. If their expectation in regard to income had been realized, the life tenant would have been entitled to $2,903.52 more than was paid to her. It is not claimed that the rights of the life tenant under this agreement were surrendered or abridged by any subsequent contract between the parties. But it seems that under a voluntary and revocable order from the life tenant the remainder-man was permitted to receive, after October 1, 1888, $50 a month from the annual income, and that the amount so received by him before the death of the life tenant was $1,300. It is a fair inference from the circumstances and the relation between the parties that the sums so received by the remainder-man were advances for his accommodation and maintenance, to be reimbursed from subsequently accruing income in excess of the amount the life tenant under the agreement was entitled to receive. If the remainder-man, who is the appellaut here, had shown that it was the intention of the parties that the life tenant should relinquish her right to any portion of the income secured to her by the agreement of March 14th, that she received any consideration for that part of the income appropriated by him, or that she intended to make a gift to him of that which they mutally agreed was reasonably necessary for her support, there would be more plausibility, and perhaps actual merit, in his present contention. But in the existing condition of the record we are unable to discover any reason or justice in his effort to surcharge the accountant with the matters embraced in the several specifications of error. These matters are not equal in amount to the income appropriated by the appellant to his own use under the order of November 15, 1888. He has already received all that he was entitled to under the agreetment of March 14th, and in addition thereto a portion of the income which belonged to the life tenant. He has not shown that the life tenant received any consideration for the income so appropriated by him, or that a gift of it to him was intended by her. The integrity of the accountant in disbursing the moneys of the estate is not assailed, and that he believed his disbursements were in conformity with the understanding between the parties interested is apparent. As was pertinently observed by the learned auditing judge, if he made any mistake it was

in favor of the appellant. The specifications of error are overruled. Decree affirmed, and appeal dismissed, at the cost of the appellant.

(149 Pa. St. 289) BRASINGTON et al. v. HANSON et al. (Supreme Court of Pennsylvania. May 23, 1892.) DEED-CONSTRUCTION OF WORD "HEIRS"—Ad

VERSE POSSESSION-WHEN BEGINS.

1. By a deed between T., "of the first part, and B., "of the second part, " land was granted to B. and "her heirs" for the use of "the said B. and her heirs, viz., S., M., O., and H.," to have and to hold the same "to the use of the said party of the second part," and "her heirs, forever. "The designated heirs were B.'s children. Held, that the word "heirs" was used in the sense of "children," and that the named children were entitled to immediate possession as tenants in common with B.

2. The possession of grantees of B. and of ber husband was adverse as to said children from its commencement, and not merely upon and after B.'s death.

Appeal from court of common pleas, Warren county; WILLIAM D. BROWN, Judge.

Ejectment by Oscar Brasington, Albert H. Brasington, and others against John P. Hanson and others. Plaintiffs claim title under the following deed: "This indenture, made the twelfth day of December, in the year of our Lord one thousand eight hundred and forty two, between Archibald Tanner, of the borough of War ren, county of Warren, and state of Pennsylvania, of the first part, and Sally Brasington, of the aforementioned place, of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of eight hundred dollars to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, hath granted, bargained, sold, released, and confirmed, and by these presents do grant, bargain, sell, release, and confirm, unto the said party of the second part, her heirs and assigne, all that certain piece or parcel of land situate in the borough of Warren, county of Warren, and state of Pennsylvania, known and described on the map of said borough as in-lots Nos. thirty-two, (32,) thirtythree, (33,) thirty-six, (36,) and thirtyseven, (37,) situated on East street, being the same lots now occupied by S. C. Brasington for the only use and behoof of the said Sally Brasington and her heirs, viz., Samuel, Milton, Oscar, and Albert H. Brasington, together with all and singular the hereditaments and appurtenances thereunto belonging, and the remainders and reversions, rents, issues, and profits thereof; to have and to hold the premises hereby granted, with the appurtenances, unto the said party of the second part, her heirs and assigns, to the use of the said party of the second part, her heirs and assigns, forever. And the said party of the first part, and his heirs, the premises hereby granted, with the appurte nances, against all and every person or person whatsoever lawfully claiming, or to claim the same, or any part thereof, by, through, or under him, the said party of the first part, and to the said party of the second part, her heirs and assigns, shall

and will warrant and forever defend by | these presents. In witness whereof the said party of the first part to these presents hath hereunto set his hand and seal the day and year first above written. ARCHIBALD TANNER. [Seal.]" Samuel, Milton, Oscar, and Albert H. Brasington were sons of Sally Brasington. Defend. ants claim title-under a deed from Samuel C. Brasington and his wife, Sally, to Raselas Brown, which was executed April 17, 1855, and they, and those from whom they claim title, have been in possession thereunder for 30 years or more. Plaintiffs contend that Sally Brasington took a life estate only under the first mentioned deed; that no title vested in the desig. nated heirs until her death; and that consequently the statute of limitations did not begin to run against the latter, and those claiming title under them, until the year 1884, the date of Sally Brasington's death. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

H. H. Goucher, J. W. Lee, and J. H. Donly, for appellants. C. W. Stone, Allen & Higgins, W. D. Hinckley, and W. E. Rice, for appellees.

PER CURIAM. The first and second specifications were not pressed upon the argument at bar. The remaining specifications involve the proper construction of the deed of Arthur Tanner to Sally Brasington. The learned judge below held, and we think properly, that this deed vested in Sally Brasington, and her four sons named therein, the immediate right to the possession and enjoyment of the lots in controversy as tenants in common. The grant in the deed is to Sally Brasington "for the only use and behoof of the said Brasington, and her heirs, viz., Samuel, Milton, Oscar, and Albert H. Brasington." The grant to the said Sally is to her and her heirs. The word “assigns" is stricken out wherever it occurs in the deed. This, however, is not important, as a grant to a man and his heirs carries with it the estate to his assigns by operation of law. It was contended by the appellants that Sally Brasington took but a life estate, and that no title vested in the designated heirs until her death. We do not think the word "heirs" in this deed was intended to be used in its ordinary sense. On the contrary, we think it means "children.' Had the conveyance been to her, and to children as a class, the contention of the appellants would have had more force. But it was not to a class, but to certain designated children, and we think the learned judge below was right in holding that the title was vested in Sally Brasington, and her four children named, as tenants in common. The language of the deed is unusual, and we know of no case that is upon all fours with it. Judgment affirmed.

(150 Pa. St. 16) GUARANTEE TRUST & SAFE DEPOSIT Co. v. POWEL et al. (Supreme Court of Pennsylvania. May 30, 1892.) MORTGAGES-RIGHT OF OWNERS TO COMPEL FORECLOSURE-SCIRE FACIAS.

A creditor is not an "owner" of mortgaged premises, and therefore not entitled, under Act

May 25, 1887, (P. L. 270.) to an order compelling the holder of the mortgage to proceed thereon by scire facias in certain instances upon petition of the mortgagor or owner, nor to an order, as against other creditors, compelling an assignee for the benefit of creditors to proceed without his consent.

Appeal from the court of common pleas, Bedford county.

Petition by George M. Brishin and others, creditors of Powel & Co. and Powel's Sons & Co., asking that the Guarantee Trust & Safe Deposit Company, assignee of those firms, be required to proceed by scire facias against Robert Hare Powel and Amy Smedley Powel upon a certain mortgage. From an order directing satisfaction to be entered on the mortgage, the Guarantee Company appeals. Reversed.

John M. Reynolds, Geo. B. Orlady, Wm. W. Wiltbank, and John G. Johnson, for appellant. Harry Cessna, James W. M. Newlin, Mayer Sulzberger, and John Cessna, for appellees.

was

MITCHELL, J. The petition is by its express terms based on the act of May 25, 1887, (P. L. 270.) That act authorizes the court to direct the issue of a scire facias by the holder of a mortgage, upon petition of the mortgagor or his legal representa. tive, or the owner of the mortgaged premises. It is in this last capacity that the pe. titioners claim. The mortgagor Powel, and his title to the land passed to the appellant as assignee for the benefit of the creditors of Powel & Co. and Powel's Sons & Co., among which creditors are the present petitioners. In no possible aspect can they be considered as owners of the land, within the meaning of the statute. It is true that in Pennsylvania the beneficial or equitable owner is regarded in law as the substantial party in interest, and may use the name of the trustee who holds the legal title without his express consent, and possibly against his consent, though no decision brought to our atten. tion has gone to this extent. Our cases hold that, the suit being brought in the name of the legal plaintiff, his right alone is in question, and may be recovered upon or defended against, and the defendant is not permitted to dispute the form of the suit. Montgomery v. Cook, 6 Watts, 238; Blanchard v. Com., 6 Watts, 309; Hamilton v. Brown, 18 Pa. St. 87; and Insurance Co. v. Smith, 11 Pa. St. 120. In none of these cases, however, was any question raised as to the right of the legal plaintiff to refuse the use of his name, though it is said obiter, in Insurance Co. v. Smith, that "the court would not have permitted the trustee to arrest the suit;" and it was held in Campbell v. Galbreath, 5 Watts, 423, where an equitable tenant in common brought suit in the name of the trustee, that he should recover the whole of the land on the trustee's title, and the consent of the cotenants would be presumed. But in Insurance Co. v. Smith the plaintiff was a mere dry trustee to hold the title to certain stock as collateral se. curity for the payment of a debt due the equitable plaintiff, and in Campbell v. Galbreath the presumption of the coten

66

ant's consent was explicitly put by KENNEDY, J., on the ground that, as the suit was manifestly an act for their benefit, it is reasonable to presume that it will be approved, ratified, and confirmed, if it was not previously authorized." There is no hard and fast rule on the subject. The recognition of the equitable plaintiff at all is by virtue of the equity powers of the court, and, though exercised under legal forms, is governed by equitable principles. Each case as it arises must stand upon its own facts. That the party having the entire and undisputed equitable right should be allowed to control the legal remedy is clear enough, but where his right is to a result, and not to the means; where the trust is active, and the trustee has duties dependent on his judgment; and, above all, where his trust includes different, and perhaps conflicting, rights,-there can he no general rule, and certainly no short cut by means of a statute intended for an entirely different purpose.

The title to the equity of redemption in the land, the ownership of the mortgaged premises which the act of 1887 means, is in the appellant, as assignee for the benefit of the creditors of Powel & Co. and Pow. el's Sons & Co. The creditors are the ultiImate distributees of the assets of those firms, but they are in no sense owners of the land. What they have in the aggregate is the right to the net fund resulting from the liquidation of the assigned estate, and what each has individually is a right to an undetermined percentage of such fund when ascertained. There are two firms, and classes of secured and unsecured creditors of each. The petitioners are but a diminutive fraction of one class of creditors, and their rights cannot be determined separately and in advance by a snap judgment in a collateral proceeding. The assignee has duties to all classes of creditors, and must act with due regard to the rights of each. These can only be ascertained and settled by the tribunal having jurisdiction of the assignee and control of its administration of the trust. Under what circumstances the whole body of the creditors, or even a majority of them, might be entitled to use the assignee's name without its consent, and without first asking the court which has jurisdiction of it to direct it to proceed, we need not discuss. It is sufficient that the statute upon which the petition was founded was not intended or adapted for such a case as this, and the whole proceeding is void for want of jurisdiction. The order directing satisfaction to be entered on the mortgage is reversed, and the petition dismissed, with costs.

mistaken in supposing that death would operate as a dissolution.

Appeal from court of common pleas, Philadelphia county.

Assumpsit by Thomas Williams against the Philadelphia Trust, Safe Deposit & Insurance Company, executor of the will of Charles Baeder, deceased, to recover 3 per cent. of the net profits of the firm of Baeder, Adamson & Co. for the years ending July 1, 1887, and July 1, 1888. Judgment for defendant. Plaintiff appeals. Affirmed.

John G. Johnson, for appellant. J. B. Townsend and R. C. McMurtrie, for appellee.

MCCOLLUM, J. The claim of the appellant is that by his agreement with Charles Baeder under date of September 24, 1879, he was entitled to receive the 3 per cent. of profits mentioned therein until the dissolution of the partnership of Baeder, Adamson & Co., and that it was not dissolved by the death of Charles Baeder. In answer to this claim the appellee contends -First, that the death of Baeder dissolved the partnership; and, second, it it did not, it terminated the appellant's right to such profits accruing thereafter. The only subject involved in the litigation is the right of the appellant to profits earned after Baeder's death. In the view we take of the case, it is not necessary to determine or consider the effect on the partnership of Baeder's death, as the liability of his estate, and the right of the appellant in this action, must be ascertained from the agreement under which the claim is made. The language of the agreement in reference to its duration is as follows: "It is further understood and agreed that this contract shall take effect from the 1st day of July, 1879, and shall continue until the dissolution of the present firm of Baeder, Adamson & Co., whether by the death of either of the partners hereto or by limitation in accordance with the terms of their copartnership agreement." In construing this provision effect must be given to the intention of the parties, if it can be discovered from the language used by them. It was obviously their understanding that the death of either of them should terminate their agreement respecting the 3 per cent. of profits, and perhaps they thought it would also dissolve the then existing partnership of Baeder, Adamson & Co. If they misapprehended the effect on that partnership of the death of either of the parties to the contract in question, such inisapprehensions would not operate to continue the contract against their clear intention to terminate it. They had an undoubted right, for the purposes of their agreement, to consider the dissolution of the partnership as a consequence of the death of either of them, and the event which they supposed would produce that result cannot be ignored in the ascertainment of their intention, even if a correct construction of the partnership articles should show they misunderstood its effect. If the appellant's contention is sound, the words "whether by the death of either of the partners hereto," and the succeeding words of the last paragraph of their agree

ment, are inoperative and meaningless. It was not necessary to specify the matters which they supposed would operate as a dissolution of the firm of Baeder, Adamson & Co., if they intended that their agreement should remain in force during the life of the partnership. But the words referred to are not without significance. They indicate a clear intention of the parties that their contract should terminate on the death of either of them, or on the dissolution of the partnership by limitation in accordance with the terms of the written articles. Whether the allowance to the appellant is considered as a gratuity or as compensation for services to be rendered by him, there is no reasonable ground for supposing that it was to cuntinue after his death. But, if his construction of the agreement is correct, his death the day after the execution of it would not have terminated it, and his estate would have been entitled to receive for 10 years the annual credit therein provided for. Certainly such a result was not contemplated by the parties. The specifications of error are overruled.

Judgment affirmed.

(150 Pa. St. 623)

REITER V. FRUH et al. (Supreme Court of Pennsylvania. May 30, 1892.) ACTION ON NOTE-EXECUTION-STATEMENT-AFFIDAVIT OF DEFENSE-AFFIDAVIT AS TO PARTNER

SHIP.

1. The statement in an action on a note, signed with a firm name, against several persons, the name of one of whom in no way appeared on the note, in no way connected him with it, except that the caption set out his name as one of the defendants, and called them copartners. Held sufficient after verdict.

2. Under court rule 1, § 1, relieving plaintiff, in an action on a note, of proving its execu tion, unless defendant, by affidavit filed with his plea, shall have denied that such note was duly executed, an affidavit of defense by one defendant denying that he made the note, or authorized or ratified the making of it, and denying that he was or had been a member of the firm, is sufficient.

3. In such an action, under court rule 1, § 2, providing that, in actions by or against partners, plaintiff need not prove the partnership, but it shall be deemed admitted, unless defendant deny by affidavit the existence of the partnership in relation to the subject-matter of the action, and state whether there is such a partnership, and who are the parties to it, all defendant need do to put plaintiff on proof of his liability is to deny the existence of the partnership as far as he is concerned, there being no issue as to who else were partners.

Appeal from court of common pleas, Philadelphia county.

Action by W. Reiter against E. Fruh, G. A. Fruh, and Granville P. Quinn, described by the caption of the statement as trading as E. & G. A. Fruh, on a note signed by E. & G. A. Fruh. Judgment for plaintiff, and defendant Quinn appeals. Re

versed.

Henry J. Hancock, for appellant. Isaac D. Yocum, for appellee.

MITCHELL, J. The defendant Quinn's name did not appear in any way upon the note in suit, and it was therefore incumbent on plaintiff to show affirmatively

Quinn's connection with it. The only way in which this was done was by naming Quinn as one of the defendants, and calling them copartners in the caption of the statement. The statement itself contained no averment of the partnership, or of Quinn's membership in it, if there was one. This is very slovenly practice, and not to be commended. In courts whose rules require an affidavit by plaintiff of the truth of the matters alleged as the basis of the claim, such a statement might well be held bad on demurrer, and certainly not sufficient to sustain a judgment for want of an affidavit of defense. The present case, however, had passed that stage, and we need not consider the sufficiency of the statement. It would be good after verdict.

The rule of the court below relieves the plaintiff of the necessity of proving the execution of the note, unless the defendant, "by affidavit filed at or before the time of filing his plea, shall have denied that such note * # * was duly execut

ed," etc. This, of course, means duly executed by defendant, or by his authority. With execution by other parties he has no concern. The defendant Quinn filed an affidavit of defense, before plea pleaded, denying that he made the note in suit, or authorized or ratified the making of it, and that he was or had been a member of the firm. This was a full compliance with the rule by its express terms, and was so held, upon a rule identical on this point with the present, in Hogg v. Orgill, 34 Pa. St. 344. That case has always been regarded as settling the construction of the rule and the practice under it. See Adams v. Kehoe, 1 Wkly. Notes Cas. 232. To permit a different construction now would do injustice to parties who have relied upon the settled practice.

Nor can the exclusion of appellant's evidence be sustained upon the rule of court as to partnership.2 His affidavit denied the existence of the partnership so far as he was concerned, and that was all he was called upon to do, to put plaintiff upon proof of his liability. It is true that the rule is framed in analogy to the requirements of a plea in abatement, and calls on the defendant to state who are the partners. Failing to do this, defendant cannot defeat the action by proving nonjoinder or misjoinder of other parties as partners. But the issue here was not who else were partners, but whether Quinn was or not. That fact was essential to plaintiff's recovery against Quinn, and the latter's affidavit put upon plaintiff the burden of proving it. Judgment reversed, and venire de novo awarded.

1 Rule 1, § 1, relative to actions on notes.

Rule 1, § 2, provides: "In all actions by or against partners it shall not be necessary for the plaintiff on the trial to prove the partnership,

but the same shall be taken to be admitted as alleged on the record, unless one or more of the defendants, or some person for him or them, shall, at or before the filing of his or their plea, partnership in relation to the subject-matter of file an affidavit denying the existence of the the action, and stating, to the best of his or their knowledge and belief, whether there is any such partnership, and who are the parties to it.