principal whereof was to be paid " as he arrived to lawful age,
or on the day of his marriage, whichever should first happen/'
and as no special provision was made by the testator, who was
his father, for his maintenance during his helpless state of mi-
nority, the plaintiff also claims interest upon the principal from
the death of the testator, down to the present time.
To this it is objected on the part of the defendants, First,
126
4, 1833.] OF PENNSYLVANIA. 135
[Magoffin admr, v. Patton and others.]
That the legacy to Henry, the intestate of the plaintiff, was
contingent, and not vested.
Second, If it should be adjudged to be vested, still, accord-
ing to the terms of the will, and the intention of the testator, as
thereby manifested, it became divested immediately upon Henry's
dying in his minority without issue, and must go according to the
disposition that is made in the sixth item of the will.
And lastly, If the plaintiff be entitled to recover the six
thousand dollars, he ought not to haVe interest allowed to him
on it, before the time appointed in the will for the payment
of it.
In Jackson v. Jackson, 1 Ves. 217, where the testator be-
queathed in the following terms : " Item, I give four hundred
pounds to R. (a son of the testator,) to be paid him at the end
of one year after my death, and the further sum of one hundred
pounds at the death of his mother," making his wife, the
mother of the legatee, executrix and residuary legatee, who
survived the son, Lord Hardwicke held, " that the one hundred
pounds was plainly a vested legacy, and the time of payment
only postponed; for the former words 'to be paid,' must be car-
ried on, as they would plainly be if turned into any other
language."
*Also in the case of Sidney v. Vaughan, 2 Eq. Ca. r*-i-| fi n
Abr. 211, C. PI. 4, where the testatrix bequeathed to L
Edward Vaughan one hundred pounds, to be paid to him within
six months after he should have served his apprenticeship; he
ran away from his master and died : it was decreed that the
serving the apprenticeship was not a condition annexed to the
legacy, but only an appointment when it should be paid, and the
rather, for if Edward had died before the expiration of his ap-
prenticeship, his representatives would have been entitled to the
legacy. This decree upon appeal to the House of Lords was
affirmed. , 2 Brown, P. C. 347, 254.
Where a legacy is given at a future time, it is contingent,
but where it is given to be paid at a future time it is vested ;
the time being considered in the latter instance annexed, not to
the gift of the legacy, but to the payment of it. Hixon r. Oliver,
13 Ves. 113.
Mr. Roper in his Treatise upon Legacies, has collected and
referred to the most of the cases on this subject, from which he
has very fairly extracted the following rule : That when a legacy
is given to a person to be paid or payable, at or when he shall
attain the age of twenty-one, or at a future definite period, the
interest in the legacy shall be considered to be vested in the
legatee immediately upon the testator's death, as debttum in pre-
senti solvendum in futuro, the time being only annexed to the
127
116 SUPREME COURT [Philadelphia,
[Magoffin admr. v. Patton and others ]
payment and not to the gift of the legacy ; so that if the legatee
happen to die before the payment arrives, his assignee or per-
sonal representative will be entitled to the legacy. Vol. I, ch.
10, sec. 2, p. 376, (Pliila. ed. of 1829.)
The words of the testator, in the case under consideration,
are : " I give and bequeath to each and every my children, the
sum of six thousand dollars apiece, to be paid them respectively
as they shall arrive to lawful age, or on the day of marriage,
whichever may first happen." Something was said in the argu-
ment of this case of the conjunction " as " which is used by the
testator, and that it imported a condition, and made the legacies
of six thousand dollars conditional or contingent. It may be,
that this word is sometimes used in a conditional sense. Indeed,
there are few words in our language which have not more mean-
ings than one affixed to them ; and the context must always
determine the sense in which they were intended to be used.
Adopting this criterion here, it is very evident that " as " is not
to be understood in a conditional sense. It clearly refers to a
certain point of time. One of "the meanings affixed to it by
lexicographers, is, " at the same time that." Now let this
meaning be substituted, and we shall find that itaccords so
exactly with the context,. that it is impossible to doubt of its
being the true one. The clause will then read thus, " to be paid
at the same time that they severally arrive to lawful age, or on
the day of marriage, whichever may first happen." And the
words employed in this latter clause, which is given as an alter-
native for the payment of these legacies, " or on the day of mar-
riage," could not be reconciled with any other meaning. But
if the word "as" could be understood in a conditional
I"*117T * seuse > it would not change the character of the
-" legacies ; they would still be vested because it is
merely annexed to the payment and not to the gift of them.
1 Roper on Leg. 3878. The particular legacy of six thousand
dollars to Henry, is, therefore, clearly a vested legacy.
This brings us to the consideration of the next ground of ob-
jection to the plaintiff's recovery, which is, that although the
legacy be vested, it was divested by Henry's dying, before he
attained twenty-one, without issue, under the operation of the
sixth item in the will.
There is no doubt but a legacy may be given in such terms as
to vest in the legatee immediately, upon the death of the testa-
tor, subject to a divesture of it in the event of the legatee's
dying before the time appointed for the payment of it shall come
round. See 1 Roper on Leg. 403-4, et seq.
But then a legacy that is vested is not to be divested by
ambiguous or dubious terms. It must appear clearly that it
128
Feb. 4, 1833.] OF PENNSYLVANIA. 117
[Magoffin adrnr. v. Patton and others ]
was the intention of the testator that it should be so in a certain
event.
In the construction of wills, the intention of the testator is
certainly the main thing to be attended to, and if not repugnant
to some rule of law, or settled principle of policy, ought, so far
as it is clearly expressed, to be carried into effect. But the ap-
plication of certain rules are oftentimes necessary in the con-
struing of wills, even to ascertain what it was that the testator
intended. Of this number, I consider the rule which requires
that every instrument of writing shall be so construed, if practi-
cable, as to make it consistent with itself in all its parts, one
which ought never to be lost sight of; for inconsistency not
being very good evidence of sanity of mind, ought not to be im-
puted, as long as it can be avoided, to persons esteemed capable
of making either contracts or wills. Now, by the express terms
of the sixth item in the will, the limitation over in favour of the
survivors there mentioned, is to take effect in the event of any
of the children of the testator dying " under lawful age, and
without leaving any lawful issue." But the particular legacies
of six thousand dollars, given to each of the children, are made
payable at the lawful age, or on the day of marriage of each
respectively, whichever should first happen, so that they might
have become payable long before the legatees, or at least some
of them, attained twenty-one. A man marrying one of the
(laughters, say at the age of twelve or later, during her minority,
would have been entitled op the day of his marriage, in right of
his wife, to have received the legacy of six thousand dollars
from the executors. Then suppose it had been paid to him,
and in two or three weeks afterwards, that his wife had died in
her minority, without leaving lawful issue; could the executors
in such case have compelled the husband to refund the legacy,
or can it be believed that such a thing was ever contemplated
or designed by the testator in making his will, or that he in-
tended the six thousand dollars should be refunded by any one
of *them, after he or she had received the same under r*-iio-i
tho express authority of his will? Taking the will alto- ^
gether, I cannot think that we are warranted in coming to the
conclusion that he intended that any of those particular legacies
should be repaid after they were once duly received. But if we
were to hold that they are embraced within the provisions of
the sixth item, it would necessarily lead to that result. By re-
stricting, however, the sixth item to that portion of the testa-
tor's estate which is disposed of by the fifth item in the will,
it appears to me that it will not only preserve harmony and
consistency in the will itself, but promote and carry into effect
with more certainty the intention of the testator. Beside, I
VOL. iv. 9 129
118 SUPREME COUET [Philadelphia,
[Magoffin admr. v. Pattou and others.]
think that any other construction would render the execution
of it difficult, if not altogether impracticable under certain cir-
cumstances, which might readily occur. But if from the whole
face of the will, it be in the least degree doubtful, whether the
testator intended to include these particular six thousand dollar
legacies in the sixth item, the plaintiff is entitled to recover,
for without a perfectly clear manifestation of such intention,
they having become once vested, cannot be divested. These
words of the sixth item, " part or parts, share or shares, devised
and bequeathed by this my will in my estate," without other
words or clauses to qualify or restrain their meaning, are no
doubt sufficiently comprehensive to embrace these particular
legacies, but then they are general, and do not refer to these
legacies specifically, which leaves the clause open to the proper
influence of the other parts of the will, and to receive that con-
struction which seems necessary in order to give consistency to
it, as a whole.
It is worthy of observation that the testator made his will
but a few days before his death, from which we may fairly pre-
sume that his estate was nearly the same in amount as well as in
kind at the time of making the will that it was at the time of
his death. It is then fair to infer that he knew the value of his
personal estate, and that the payment of his debts, together with
the specific bequest to his wife, and the particular six thousand
dollar legacies to his children, would consume the most, if not
the whole of it ; so that with the exception of the remainder,
after the life estate, in some articles of household furniture and
plate, specifically bequeathed to his wife, his real estate was all
that remained to be disposed of in the residuary clause of the
will, which is the fifth item. It is also obvious, that the terms
of this clause are very particularly adapted to the disposal of
real estate, by the introduction of words of inheritance. And
again, in the immediately succeeding item, which is the one re-
lied on by the defendants to defeat the plaintiff's recovery, all
the estate which is thereby disposed of, is given to the persons
therein designated, " as tenants in common in fee." These last
words " in fee," are peculiarly applicable to real estate, and
altogether unnecessary to be used in disposing of personal, and
being so nearly the same with those used in the residuary clause,
immediately preceding, that I feel inclined to believe that the
r*iiQl generality of the clause already *noticed in this sixth
J item, is thereby restrained to the property disposed of
in the residuary bequest and devise, and that the particular
legacies in the fourth item were not intended to be included.
But what weighs most of all with me on this point is, that the
testator has directed the particular legacies given in the fourth
130
Feb. 4, 1833.] OF PENNSYLVANIA. 119
[Magoffin admr. v. Patton and others.'
item, to be paid on the day of marriage of the legatees, respect-
ively, without regard to their age in that case, when in the
sixth item, the limitation over is made to depend upon " their
dying under age, and without leaving lawful issue," an entirely
different event, and one incompatible with that on which the
legacies are made payable.
Taking this view of the case, I am decidedly of opinion, that
the plaintiff is entitled to recover the six thousand dollars, the
principal of the legacy ; and this brings us to the consideration
of the question of interest.
The general rule seems to be, that where legacies are given
payable at a certain time, they carry no interest before that
time ; for interest is allowed for delay of payment, and conse-
quently, till the day of payment comes round, no interest is de-
mandable. But the exception is equally well settled with the
rule, that where the legatee is a child of the testator, and a
minor, incapable of supporting himself, or one to whom the
testator has placed himself in loco parentis, and no special pro-
vision is made for the maintenance of the legatee, interest will
be allowed on the legacy, although not payable until a future
time, as upon the legatee's attaining full age : For the purpose,
in such case, of maintaining the legatee, interest must be paid
-on the legacy, whether it be particular and vested, as in the
present case, or particular and contingent, or whether it be re-
siduary and vested, or contingent. See 2 Roper on Leg. 190,
ch. 20, sec'. 3, and 192, sec. 4.
In Heath v. Perry, 3 Atk. 101, Lord Hardwicke says, " where
a legacy is actually vested, as if given to A., payable at twenty-
one, yet it shall not carry interest, unless something is said in
the w r ill that shows the testator's intention to give interest in the
meantime. But all these cases are subject to this exception, if
it is in the case of a child ; for then let a testator give it how he
will, either at twenty-one or at marriage, or payable at twenty-
one, or payable at marriage, and the child has no other provision,
the court will give interest by way of maintenance, for they
will not presume the father inofficious, or so unnatural, as to
(eave a child destitute." The doctrine here laid down by Lord
Hardwicke, which is supported' to its fullest extent in the case
mentioned below, rules the question of interest in the case before
as. Glyde v. Wright, 1 Cha. Rep. 265, octavo ed. ; Harvey v.
Harvey* 2 P. Wms. 21 ; Green v. Belchier, 1 Atk. 507 ; Incledon
v. Northcote, 3 Atk. 438 Hearle v. Green bank, Ib. 716 ; Cole-
man v. Seymour, 1 Ves. 210-11 ; Beck ford v. Tobin, 1 Ves. Jr.
300; Carey v. Askew, 2 Bro. C. C. 58.
I am therefore of opinion, that as Henry Patton the legatee
in this case was a minor child of the testator, incapable of sup-
131
120 SUPREME COURT [Philadelphia.
[Magoffin admr. v. Patton and others.]
f+1 90T P or ti n g himself, *and left without au adequate provision
I for his maintenance, besides this legacy, that the plain-
tiff is also entitled to recover interest upon it from the time of
the death of the testator.
Judgment for the plaintiff.
Cited by Counsel, 5 W. & S. 518 ; 11 H. 153 ; 6 C. 177 ; 5 S. 333.
Approved, 12 Wr. 83 ; 10 S. 349 ; 12 S. 140 ; 20 S. 204 ; 21 S. 404 ; 7 O. 590 ,
13 W. N. C. 283.
Cited by the Court, 1 H. 504; 7 H. 54; 6 N. 161. ^
These cases affirm the rule that interest on legacies which are not to vest
until the legatee comes of age, must be paid to maintain him, but do not go
so far as to allow the principal to be taken for that purpose.
[PHILADELPHIA, FEBRUARY 6, 1833.]
Nisbet and Another against Patton and Others.
IN ERROR.
The conversion by one partner of property, which came into the possession
of the firm on partnership account, is the conversion of all, and makes all
liable in trover.
ON the return of a writ of error to the District Court, for the
City and County of Philadelphia, it appeared that this was an
action of trover, brought by James Patton and others, assignees
of Henry Simpson, against Michael Nisbet and David C. Wood,
trading under the firm of Michael Nisbet & Company, for the
conversion of six promissory notes, drawn by different 'persons,
in favour of Henry Simpson.
Simpson, who was a dealer in dry goods, had been in the habit
of depositing goods with the defendants below, who advanced
their notes upon them. The notes for the conversion of which
this suit was brought, had been placed in the hands of the de-
fendants below, with an understanding, that when goods were
deposited with them, the notes were to be returned. On the day
of Simpson's failure, which took place on the 12th January, 1826,
he deposited a quantity of goods with the defendants, and on the
following day he executed to the plaintiffs below an assignment
for the benefit of his creditors. On the same day his assignees
sent to demand the notes. Nisbet, on whom the demand was
made, said he would deliver the notes, but could not get them
then, as they were locked up in his fireproof, and his bookkeeper
was gone home with the key, but promised on the honour of a
gentleman, to give them up in the morning. On being called
on again on the following morning, he said that he would not
132
6, 1833.] OF PENNSYLVANIA. 120
[Nisbet and another v. Patton and others.]
give them up, or that he had not them. The demand was made
on Nisbet alone, Wood not being present.
On the part of the defendants below, it appeared that Michael
Nisbet, a short time previous to the formation of the partnership
of Michael Nisbet & Co., of which David C. Wood was a partner
had been a partner in another firm, trading under the firm of
Cohen & Nisbet; that by the terms agreed upon at the dissolution
of the latter firm, he was authorized to settle its affairs, and that
Simpson was indebted to the firm of Cohen & Nisbet to a larger
amount than that which was claimed by the plaintiffs in this cause.
Nisbet, therefore, claimed a right to retain the notes in contro-
versy, alleging that *he had a lien upon them for the r*ioii
debt due by Simpson to the firm of Cohen & Nisbet. L
The defendant then produced and gave in evidence a promis-
sory note, dated the 2d of August, 1825, at six mouths, for five
hundred and twenty-five dollars .and seventeen cents, drawn by
Henry Simpson in favour of Cohen & Nisbet ; another note
dated the llth of August, 1825, at six months, for four hundred
and three dollars and twenty cents, also drawn by Henry Simp-
son in favour of Cohen & Nisbet, and a third note dated August
13th, 1825, at six mouths, for four hundred and forty-five
dollars and twenty cents, drawn by Henry Simpson in favour of
Cohen & Nisbet. They also gave in evidence a copy of an
account current, dated 13th March, 1826, rendered by Michael
Nisbet & Co., to the assignees of Henry Simpson, showing a
balance of two hundred and fifty-three dollars and fifty-eight
cents, due to the assignees, and a receipt for that sum dated the
14th of March, 1826.
The counsel of David C. Wood, requested the judge who tried
the cause in the court below to charge the jury, " That if they
believed from the evidence that Nisbet detained the notes in
controversy on behalf of Cohen & Nisbet, and not on behalf of
Michael Nisbet & Co., then David C. Wood is not liable, and
the jury ought not to find a verdict against him."
The counsel for the plaintiffs below requested the judge to
charge the jury as follows :
" 1. That if the promissory notes for which this action is
brought, were placed in the hands of the defendants as a tem-
porary security for moneys advanced to Henry Simpson, until a
security in goods should be delivered, and that security M T as
afterwards deposited, the defendants had no lien upon the notes
against Simpson or his assignees as a security for any claim of
another firm of which the defendants, or one of them, were or
was a nember.
'' 2. That if the notes in question were so delivered to the
defendants for a specific purpose, after that purpose was com-
133
121 SUPREME COURT [Philadelphia,
[Nisbet and another v. Patton and others.]
plied with, the defendants are answerable in this action after
demand and refusal by the plaintiffs, and it is of no consequence
to the validity of the plaintiffs' claim against the defendants,
that one of them alone retained the notes for a purpose in which
he alone was interested."
The judge instructed the jury as he was requested by the
counsel for the plaintiffs, and added, that the action being trover,
the doctrine of set-off did not apply ; but had the action been one
of contract, as the notes were not due when the suit was brought,
set-off could not be permitted : That there being no defence
either by way of lien or set-off, and the defendants being co-
partners in business, and having as such received the notes for
a particular purpose, whenever that purpose was complied with,
they were bound to surrender the notes ; and the circumstance
of Wood's not taking an active part in the business, and
not having been present wjien the demand was made on
f*1 991 *-^ s k e t, an d Nisbet's retaining the notes for the debt
J of Cohen & Nisbet, did not absolve Wood from liability
in this action.
With respect to the point propounded by the counsel of Wood,
his Honour said, that he was unable to instruct the jury as he
was requested. The law was not -so, but just the contrary. The
defendants being partners, and the notes in question having
been delivered to Michael Nisbet for purposes connected with
the business of the partnership, the conversion of one was, in
point of law, the conversion of both.
The jury found a verdict for the plaintiffs, and the defendants
sued out a writ of error.
Stroud, for the plaintiffs in error, cited Vasse v. Smith, 6
Cranch, 226 ; 2 Phil. Ev. 125; White v. Demary, 2 New Hamp.
Rep. 546 ; Bull. N. P. 44 ; 2 Saund. on PI. and Ev. 478 ; Collier
on Part. 253.
Rawle, Jr., contra, referred to Gow on Partnership, 52, 79,
174. 175; Durell v. Mosher 8 Johns. Rep. 347; 1 Maule &
Selw. 388.
The opinion of the court was delivered by
GIBSON, C. J. The case of White v. Demary, 2 N. H. Rep.
546, though apparently in point, depended on a principle entirely
distinct from that which governs the transactions of partners.
There the defendants were but joint bailees ; and the law is
settled that the act. of a tenant in common shall not prejudice
the title of his co-tenant or charge him with a tort. It is other-
134
Feb. 6, 1833.] OF PENNSYLVANIA. 122
[Msbet and another v. Patton and others.]
wise with partners, each of whom constitutes the other a general
agent of the firm, with power to bind it, not only by his contracts,
but by his acts in the scope of the business. His authority to
contract has never been disputed ; and the responsibility of the
firm for the legal consequence of his acts, stands on a principle
equally settled. Thus in Willet v. Chambers, Cowp. 814, an
attorney whose partner had received money to be laid out on a
mortgage, was held liable for it though the mortgage was forged
by the receiving partner without the knowledge of the other.
The same principle was held in the Manufacturers' and Me-
chanics' Bank v. Gore, 15 Mass. Rep. 75, and Boardman v.
Gore, Ib. 331 ; and it has been decided in Biggs v. Lawrence, 3
T. R. 454, that a trading on joint account in contraband goods,
will implicate an innocent partner. So in Hadfield v. Jameson,
2 Munf. 65, it was determined that the fraud and misconduct of
one part owner which produced the loss of a ship and cargo
affected the claim of both to freight under a charter party. It
is, however, conceded that both would have been answerable
here for the act of Nisbet in an action on the contract to re-
deliver the notes after the purposes of the deposit were satisfied ;
and this concession includes the decisive fact, that the refusal of
Nisbet was the refusal of his co-partner. Being so for any pur-
pose, it must be so for every purpose ; for it is not easy to see
why it should be his act to charge him on a contract, and not his
act to charge him with a tort. It is not doubted that partners
may *be sued in trover where they join in the conver- r*ioq-i
sion ; and do they not join where the act of one is the L
act of all?
It can be of but little account to them whether they are made
to respond in the one sort of action or the other ; for though it
be true that there is no contribution between tort feasors, it is