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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) online

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not in being at the time of making the will, nor at the time of the
death of the testator. It was also uncertain when, if ever, it should
come into being ; this was the view which the testator had of it ; and
accordingly he intended by the latter part of his will to provide for
the disposition of it, whenever it should arise, if at all, or come into
existence. The prior part of the will does not touch it, and was
not intended by the testator to affect it in any way whatever ; the
prior operates upon the ground-rents, a different thing altogether,
and directs the uses to which they shall be applied, so long as they
shall remain in the hands of the trustees unsold ; but then this ap-
propriation of ground-rents, from its very nature was to terminate
upon the sale being made of them by the trustees, as therein directed ;



1839.] OF PENNSYLVANIA. 396

[Nathans v. Morris.]

upon which event, and not before, the surplus, for the disposition
whereof the latter part provides, might arise and come into being.
Thus seeing that those two parts of the will are applicable to dis-
tinct *and different objects, and the operation of the latter r^oo?
intended only to commence upon the determination of the '-
prior, it is perfectly obvious that they are consistent with each other,
and may stand together.

But it is said, that the latter part being only indicative of the
particular intent of the testator, ought not to be permitted to operate
so as to defeat the general intent, which, it is alleged, is manifested
throughout the will. This rule, although said to have a governing
influence in the construction of wills, can have no application here,
for the intention displayed in that part of the will, under which the
defendants Hearttie and Ramberger claim, does not accord seeming-
ly more with any general intention that may be manifested by the
testator in his will, than the intention disclosed in the latter clause
does, under which Mrs. Nathans claims. Nor does it appear that
either of those parts can be considered as running counter to any
general intention that can be collected from the whole tenor of the
will : they are not only consistent with each other, but would appear
to be so with the general scope and design of the will.

It is also said, that the testator could not have intended that so
large a surplus, as there is here, should be given to Mrs. Nathans
absolutely, for her sole and separate use, as directed in the latter
clause of the will ; that, at most, he could only have intended some
small inconsiderable sum of money ; supposing that in no event,
upon the sale of the ground- rents, for the purpose of paying off the
mortgage, it could be more. This, if not fanciful, is at best merely
conjectural; and would therefore be a very unsafe basis to found a
construction upon. If such had been his intention, nothing could
have been more easy, than to have said so, and to have put an
express limit upon it ; but he has not done it, neither has he used
any words from which it is possible to draw the conclusion that such
was his intention. Indeed it may well be doubted, as has been
already suggested, whether he would have considered a surplus, of
a trifling amount, of sufficient importance to make it either neces-
sary or expedient to give it in such a manner to Mrs. Nathans, as to
exclude her husband from the right of receiving it. It may be,that
rather than pronounce a will, or a devise, or bequest in it, void for
uncertainty, what seemed from the will itself, to have been the
probable intention of the testator, would be deemed sufficient to
prevent it from being declared a nullity ; but I apprehend that
fancy or bare conjecture, ought never to be permitted to supply the
want of evidence of intention ; and certainly never can be consid-
ered sufficient to set aside a clear and positive provision in a will,
expressed in terms of definite and precise meaning, and there-



397 SUPREME COURT {March Term,

[Nathans v. Morris.]

fore susceptible of but one construction. The whole of the sur-
plus here then is given to Mrs. Nathans, for her sole and separate
use absolutely, without any qualification or limitation whatever,
either as to its amount, duration, or anything else attending it, yet
*3/81 ^ e testator was certainly *aware that the surplus might
-" happen to be either small or something considerable, just as
the ground-rents should happen to bring high or low prices ; for in
directing the sale of them, he has ordered that they should all be
sold, or such and so many of them as should be sufficient to pay off
the mortgage debt, with the interest, charges and costs accrued
thereon ; so that it might be necessary, after having sold one of
the ground-rents, to sell the second or the third, in order to make
up a very small deficiency, which would be likely to produce a
large surplus. But it has been objected to Mrs. Nathans claiming
the whole of the surplus, that the trustees improperly increased the
amount of it beyond what it would and ought to have been, by sell-
ing the two largest ground-rents, instead of the largest and the
least. It is a sufficient answer to this, however, to say that it has
not been shown, that a sale of the largest and the least ground-rents
would have yielded a sum of money sufficient to have satisfied the
mortgage debt with the interest, charges and costs accrued thereon ;
and if it would not, it is evident that the sale of the remaining
ground-rent, which in that event would have become necessary,
would still have increased the surplus in amount, above what it is
now, and possibly have subjected the trustees to some blame. The
court below seem to have founded their decree upon the assumption
of the fact, that the least ground-rent, if it had been offered for
sale by the trustees, would have brought a price in proportion to
its nominal amount, equal to those produced by the sales of the
two largest, which with the price of the largest ground-rent, would
have been sufficient to have satisfied the mortgage, besides all
charges, and left a surplus of eight hundred and forty-six dollars
and sixty-three cents. The court, accordingly, conceived that this
sum would have been the amount of the surplus, had the trustee
pursued a proper course, and sold, as the court thought they ought
to have done, the largest and the least of the three ground-rents,
instead of the two largest, decreed that it should be paid to Mrs.
Nathans, for her sole and separate use. That the least ground-rent
could have been sold equally as well as the others, had it been
offered, seems to have been matter of conjecture, without any evi-
dence being adduced to show what it would have brought at a pub-
lic sale. In the absence then of all proof on this head, we must
presume that the trustees acted fairly and discreetly, and sold such
of the ground-rents only as were proper, in order to raise the
requisite sum of money, and having done this, there remains a
surplus, after paying off the mortgage and all charges, of two thous-



1839.] OF PENNSYLVANIA. 398

[Nathans . Morris. J

and four hundred and twenty dollars and fifty-one cents. This ?um
it would then seem, from the plain unequivocal terms of the will,
the testator intended should be given to Mrs. Nathans, for her sole
and separate use absolutely. It is therefore ordered and decreed
by this court, that the said sum of two thousand four hundred and
twenty dollars and *fifty-one cents of the money which is r#oqq
in court, be paid to the said Margaret Lucretia Nathans, "-
for her sole and separate use ; and that the decree of the court
below be reversed, excepting as to the allowance decreed to the
trustees for their trouble and services, which part of it is hereby
affirmed.

Decree accordingly.

Cited by Counsel, 10 Barr 36; 2 Jones 349 ; 14 Wright 78; ||32 Smith
226 ; s. c. 1 W. N. C. 227 ; 3 Norris 304. ||
Cited by the Court, 2 Wright 119.
See ante 98 ; || as to commissions. ||



[PHILADELPHIA, APRIL 15, 1839.]

Fassit and others against Phillips and others.

IN EQUITY.

An assignment by partners for the benefit of creditors, purported to convey
all their partnership effects, &c., and certain real estate belonging to one of
the partners, and stipulated for a general release. 1 A bill was filed, setting
fortn that the partners owned separate real estate, which was not mentioned
in the assignment, and an injunction was granted to restrain the assignees
from proceeding under the assignment. It appeared by the answer that the
only separate real estate of either partner, which had not been mentioned in
the assignment, was a house and lot of ground encumbered beyond their full
Value. 2 The court, on motion, dissolved the injunction.

THIS cause came before the court on a motion to dissolve an
injunction, which had been granted on the filing of a bill by James
Fassit, Theodore L. Fassit, and Alfred Fassit, co-partners in trade,
as James Fassit & Co., against Isaac Phillips, Joseph L. Moss,
Joseph Mora Moss and David Samuel.

The bill set forth that the complainants had been in the habit
of transacting business with Isaac Phillips and Joseph L. Moss,
who traded in the city of Philadelphia under the firm of R. & I.
Phillips ; that said R. & I. Phillips, in consequence of their mu-
tual dealings and business transactions became indebted unto the

1 || Preferences in an assignment are void except for certain wages. A
stipulation for a release is deemed a preference. Acts 17th April 1843, 1
P. L. 273; 16th April 1849, | 4, P. L. 64; Pur. Dig. p. 91, pi. 2, 3 (ed
1873), and notes. The act does not invalidate the assignment. ||

* || See note at end of this case. ||



399 SUPREME COURT [March Term,

[Fassit 0. Phillips.]

complainants in a large sum of money, for which they obtained
*4.nm judgment by *confessioh against the said R. & I. Phillips
-" for nineteen thousand five hundred and ninety-two dol-
lars and ninety-seven cents, being the amount then actually due in
the District Court for the City and County of Philadelphia to
September Term 1837, No. 1318, which judgment now stands
unreversed and in full force, and that the said R. & I. Phillips have
never satisfied the said judgment or any part thereof; that the
said R. & I. Phillips by deed, dated the twenty-second day of
March, eighteen hundred and thirty-seven (a copy of which was
annexed to the bill), transferred and assigned unto Joseph Mora
Moss and David Samuel certain of their property, real and personal,
in trust, after the payment of certain preferences, for the benefit
of all the creditors of the said R. & I. Phillips : that the said R.
& I. Phillips, by a certain other deed, dated the twenty-second day
of June, eighteen hundred and thirty seven (a copy of which was
also annexed), transferred and assigned unto Joseph Mora Moss
and David Samuel, certain of their property, real and personal, in
trust, after the payment of certain preferences, for the benefit of
such of their creditors as should on or before certain periods of
time therein limited, execute unto the said R. & I. Phillips a full,
valid, and general release of all their claims and demands. The
bill further charged that the said first mentioned deed of assign-
ment, dated March the twenty-second, eighteen hundred and thirty-
seven, was fraudulent and void ; that it assigned the partnership
property and effects of the said R. & I. Phillips, for the payment
of the several and personal liabilities of the said Isaac Phillips
and Joseph L. Moss, in preference to the partnership debts of the
said R. & I. Phillips; the said R. & I. Phillips being at that time
insolvent : that the said deed of assignment, dated the 22d of June
1838, was fraudulent and void : that it did not assign all the pro-
perty of the said R. & I. Phillips ; that Joseph L. Moss, one of the
partners of the said firm, did at the time of the assignment stand
seised, and was the owner of certain real estate, described arid
mentioned in a schedule annexed to the bill, which was not trans-
ferred by it. That Isaac Phillips, another partner of the said firm,
was at the time of the assignment the owner, and had an interest
in certain real estate (mentioned and described in another schedule
annexed), not conveyed by it, and that the last mentioned deed of
assignment made no mention of sundry pieces of property (a sched-
ule of which was also annexed), in which the said R. & I. Phillips
had an interest at the time they were executing the said deed ; that
the said Joseph Mora Moss and David Samuel, assignees of the said
R. & I. Phillips, had taken charge of large quantities of property
under the assignment of the 22d March 1837, had reduced the
Bame into their possession, were proceeding to satisfy the prefer-



1839.] OF PENNSYLVANIA. 400

[Fassit o. Phillips.]

ences, and intended to hold the residue under the assignment of
the 22d June 1837, and shortly to distribute the same to the releas-
ing creditors of R. & I. Phillips ; that the said Joseph Mora Moss
and David Samuel, assignees of the said R. & I. * Phillips, r*4Q-i
had taken charge of large quantities of property, had L
reduced the same into their possession, and intended shortly to dis-
tribute unto the releasing creditors, such proceeds as they may have
realized as agents under the assignments ; that the complainants
had refused to execute the stipulated release, or to assent to the
assignments ; that the said Isaac Phillips, Joseph L. Moss, Joseph
Mora Moss and David Samuel had absolutely refused to satisfy the
claim of the complainants, or any part thereof, or to admit them to
a share of the assigned property.

The bill then prayed a discovery, and asked for an injunction tc
restrain the assignees from acting in any way under the two deeds ;
and also prayed for the appointment of a receiver.

The assignment of the 22d of March 1837 (a copy of which was
annexed to the bill), purported to be made between Isaac Phillips
and Joseph L. Moss, composing the firm of R. & I. Phillips of
Philadelphia, in the state of Pennsylvania, and Joseph M. Moss
and David Samuel of the city of Philadelphia, merchants, of the
second part : it recited that owing to divers losses and misfortunes
in their mercantile business and operations, the parties of the first
part had been compelled to suspend their payments, and conveyed
to the assignees, their heirs, executors, administrators and assigns,
" all and singular the joint and several property and estate of the
said parties of the first part, and of each of them, real and personal,
situate, lying and being, or due, owing or belonging to them or
either of them, within the state of New York, and more particu-
larly three houses and lots in Walker street in the city of New
York, and two bonds and mortgages on two other houses and lots
in Walker street aforesaid : all the merchandise on board the ship
Groton now lying in the port of New York, and all merchandise,
chattels or effects in the hands of Messrs. Levy and Colgate,
or any other person or persons in the city of New York ; all mer-
chandise which may hereafter arrive in the said city of New York,
belonging to the said parties of the first part or either of them ;
all debts, dues, demands, amounts and balances of accounts, due
and owing, or hereafter to become due and owing to the said par-
ties of the first part, or either of them, by Messrs. J. L. & S. Jo-
seph & Co. of New York, or any other person or persons residing
in the state of New York, and all and singular the estate, right,
title, interest, property, claim and demand whatsoever both at law
and in equity, of the said parties of the first part, and each and
pvery of them, of, into, and out of the said hereby assigned premises
or any and every part thereof. To have and to hold, receive and



401 SUPREME COURT

[Fassit v. Phillips.]

take said premises hereby assigned, and every part thereof unto the
said parties of the second part and the survivor of them, and the
heirs, executors, administrators and assigns of such survivor : In
trust nevertheless, and to and for the several uses and purposes
*4091 nere i na ft ;er mentioned and declared of and concerning *the
"*J same ; that is to say, upon trust that the said parties of
the second part, and the survivor of them, and the heirs, executors,
administrators and assigns of such survivor do, and shall in such
manner and at such time or times, either at public or private sale,
and for cash or upon credit, and by and under such terms and prices
as they shall think reasonable and proper, absolutely sell, convey
and dispose of, all and singular the said estate, property and effects
hereby assigned, or so much thereof as can be sold or disposed of,
and also do and shall receive, collect, and get in all the residue
of the said premises ; and by and out of the moneys which shall
arise from such sale or sales, and which shall be collected, received
and gotten in as aforesaid, do pay and discharge, or retain and
reimburse themselves, for all such costs, charges, expenses and dis-
bursements as may have been or shall be rightfully paid or incurred
by them, or for which they shall or may be liable in and about the
execution of the trusts herein contained or in anywise relating
thereto, together with a just and reasonable compensation for their
services in this behalf and in the execution of the trusts herein
contained, and then upon the further trust that the said parties of
the second part, and the survivor of them, and the executors and
administrators of such survivor shall and do pay and satisfy to
Messrs. Jonas Phillips & Son of London, and to the individual
members of that firm and to each and to every of them, all such
sum and sums of money, debts, dues and demands as now are due
and owing, or which are now contracted though payable hereafter,
by the said parties of the first part, jointly or severally to the said
Jonas Phillips & Sons, or to all, any or either of the individual
members of the said firm, and also lawful interest on the said several
sums from the time they respectively are due until paid, and then
upon the further trust to divide and distribute all the residue of the
said trust moneys, which shall have been by them raised, received
and gotten in, as aforesaid, to and among the other creditors of the
said parties of the first part, whether their debts be now due and
owing, or are payable hereafter 'paripassu,' or in equal rateable
proportions, according to the amount of their respective past claims
and demands."

Then followed a covenant for further assurance and the usual
powers to the assignees.

This instrument was acknowledged and recorded in New York,
the 23d of March 1837.

The assignment of the 22d of June 1837 (a copy of which also



1839.J OF PENNSYLVANIA. 402

[Fassit v. Phillips.]

was annexed), purported to be made between Isaac Phillips of the
city of Philadelphia, merchant, and Sarah his wife, and Joseph L.
Moss, of the same city, merchant, and Julia his wife, the said Isaac
Phillips and Joseph L. Moss being co-partners in trade under the
firm of R. & I. Phillips, of the first part, and Joseph M. Moss and
*David Samuel of the same city, merchants, of the first part : I-=M no
It recited that the parties of the first part, "on the day of *-
date of these presents are justly and truly indebted unto sundry
persons in divers sums of money, which, by reason of numerous and
heavy losses and reverses they are at present unable fully to pay
and satisfy, but are desirous to apply and appropriate their estate
and effects for and towards the payment and satisfaction of their
said debts so far as the same may avail," and conveyed to the
assignees, their heirs, executors, administrators and assigns, " all
and singular the goods and chattels, merchandise, debts, sum and
sums of money due, owing or belonging to the said R. & I. Phillips,
and all securities had, taken or obtained for the same, and also all
the right, title and interest, property, claim and demand of them
the said R. & I. Phillips, of, in and to the same, and any and every
part thereof; and the said parties of the second part, for and upon
the same considerations as hereinbefore set forth have also granted,
bargained and sold, aliened, enfeoffed, released and confirmed, and
by these presents do grant, bargain and sell, alien, enfeoff, release
and confirm unto the said parties of the second part, and to the
survivor of them, his heirs, executors, administrators and assigns,
all and singular the following real estate ; that is to say, all that
lot or piece of ground situate on the north side of Chestnut street,
at the distance of forty-two feet westward from the west side of
Schuylkill Seventh street, in the city of Philadelphia, containing
in front or breadth on said Chestnut sixty-six feet, and extending in
length or depth northward one hundred and fifty-eight feet to Lin-
den street, being the same premises which George H. Thompson
and Rebecca H. his wife, granted to the said Isaac Phillips in fee
by indenture bearing date on the ninth day of June, A. D. 1835,
and duly recorded ; and also all that certain three-story brick mes-
suage and lot on the westerly side of Sixth street, between High
and Chestnut street in the said city, containing in front or breadth
on said Sixth street twenty-five feet, more or less, and of that
breadth extending in length or depth westward to Decatur street
one hundred and seventy-three feet, more or less, with the appurte-
nances, and also all that certain messuage or store and lot of
ground on the east side of Delaware Front street, between Wal-
nut and Spruce street, in the said city, containing in front or
breadth in the said Front street nineteen feet, and in length or
depth from the said Front street to Water street about forty-one
feet, being the same premises which John Sergeant, of the city of



403 SUPREME COURT

[Fassit v. Phillips.]

Philadelphia, Esquire, and Margaretta his wife, by indenture bear-
ing date the second day of June, A. D. one thousand eight hundred
and twenty-five, granted and conveyed unto the said Isaac Phillips
in fee, and all the right, title and interest, property, claim, estate,
and demand of them, the parties of the second part or either of
them, of, in or to the said mentioned real estate, with the appurte-
*4041 nances ' to have and to hold, receive and take all and singular
- *the said goods and chattels, merchandise, debts, sum and
sums of money, securities for the same rights, credits and estate,
real and personal, hereby assigned or mentioned or intended so to
be, with their and every of their appurtenances, unto the said parties
of the second part, and to the survivor of them, his heirs, execu-
tors, administrators and assigns, from henceforth forever, upon this
special trust and confidence nevertheless, and to no other, and to
the intent and purpose that they, the said parties of the second part,
the survivor of them, his heirs, executors, administrators and assigns,
do and shall with all convenient speed make sale and disposition of
all and singular the estate, real and personal, hereby assigned for
the most and best price they can get for the same, and use their
best endeavors, by all lawful ways and means, to obtain, recover
and receive into their hands and possession all and singular the said
debts, sum and sums of money due and owing to the said R. & I.
Phillips, and that after deducting the reasonable expenses of creating
and executing this trust, they the said parties of the second part,
the survivor of them, and his heirs, executors, administrators and
assigns, shall pay and distribute the proceeds of the said assigned
real and personal estate in manner and form following, that is to
say : First, to pay and satisfy in full, sundry small personal ac-
counts due from the said Isaac Phillips, not exceeding eight hundred
dollars, and bills of the same character due from said Joseph L.
Moss, not exceeding eight hundred dollars. Secondly, to pay and
discharge in full to John Moss, Esquire, "the full amount of his
responsibilities, incurred by reason of his indorsements, as sterling
bills of exchange, to take up drafts of Victor David of New Orleans,
and others, which said indorsements were so made by the said John
Moss, subsequent to the suspension of payment by the said R. & I.
Phillips, not exceeding three thousand pounds sterling, with all
damages, interest and expenses on the said bills. Thirdly, to pay
and satisfy to the said parties of the second part, the full amount



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) → online text (page 46 of 74)