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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 6) online

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acceptances for his customer exceeded the cash balance in his
hands, and accommodation acceptances were deposited by the
customer with the banker, as collateral security, whenever the
acceptances exceeded the cash balance, the banker held the colla-
teral bills for value. The reason that a negotiable note transferred
as a collateral, does not constitute the holder a purchaser for value,
is, that he is supposed, although very often contrary to the fact, to
be in no worse situation than he was before. But that is not the
case where there is a new and distinct consideration superinduced
by the transfer and exchange of securities. It is not a past, but a
present consideration.

The plaintiffs in error contend, that the judge erred, 1st, in
charging the jury, that a parting with the possession of the bond,



1840.] OF PENNSYLVANIA. 234

[Depeau c. Waddington.]

for the purpose of a sale of it, was no surrender of the property in
it ; and that the parting with the possession did not imply that the
plaintiffs gave up their claim to it. Coupled with the evidence, we
see no error in the charge; as it was the understanding of the
parties, and the jury have so found, that it should be used for
the special purpose of converting the bond into money, and paying
the plaintiffs debt. Quoad this amount they were the agents of the
plaintiffs.

2d. In charging that if the defendant slept upon the knowledge
that the plaintiffs held the note, and did not immediately give them
notice that no value had been received for it, it was a circumstance
for the consideration of the jury, in reference to his liability. The
answer refers to the plaintiff's ninth point ; and it may be doubtful
whether, if there be error at all, it is not against the plaintiffs. It
is conceded, that the plaintiffs were not aware of the want of con-
sideration between the original parties ; at least there is no proof
of it : that they were resting under the conviction that there was
no want of faith between them : that there was at least a moral
obligation on the defendant, as soon as he was informed of the true
state of the case, to take the earliest opportunity to apprise them
of it, that they might secure themselves ; but instead of this, he
seems *to rely on the promise of Robinson & Smith, to in- r^.Tor
demnify him by payment of the plaintiff's debt. There is *-
nothing to complain of in this part of the charge, as it certainly
was a circumstance which the jury might take into consideration.

But it is said that there is error, because the judge did not
answer the defendant's points at all: and that he misdirected the
jury as to the law arising from the evidence. That the latter alle-
gation is groundless, I have endeavored to show ; and as to the
former, all the points to which the defendant was entitled to an
affirmative answer, are noticed in the charge. But in addition,
this case is in some respects peculiar ; and we sincerely hope it
will be the last of its kind. When the judge was about to deliver
his charge to the jury, the defendant's counsel handed to him a
paper, containing five points to be charged on. The judge sup-
posed that the general charge had covered all the ground taken in
the argument; and from the opportunity afforded of examining the
points, he was not aware that anything in them had riot been suffi-
ciently noticed. He desired, however, if the counsel for the defend-
ant wished any more specific answer, that a designation would be
made of the portions of the points which had not been embraced in
the remarks already submitted to the jury.

The counsel for the defendants then referred to the fourth and
fifth points. To this he answered, that no difference had been
shown between the law of New York and the law of Pennsylvania;
and therefore the point did not arise. In this the court was right ;



235 SUPREME COURT [Dee. Term,

[Depeau v. Waddington.]

for no difference now exists in the law of the two states in this
particular. The courts of New York have retraced their steps;
and the law is the same there as here.

As to the fourth point, the judge said, that it appeared to be
complicated of law and fact ; and believing it to be answered by the
general charge, so far as the defendant was entitled to have it
answered, he had no further reply to give to it. The remarks
already made show that the point was substantially answered ; but
there is another reason equally conclusive.

After stating his impression, that the point (certainly not so
clearly expressed as to be understood in a minute) had been
answered, the judge requested the counsel for the defendant to
specify as to what particular the fourth point had not been answered;
and the counsel not presenting any such specification, no further
response was made by the court. To convict a judge of error, after
evincing his desire in this manner to do justice to the parties, might
Ijead to the practice of trick and artifice and concealment, and must
be specially avoided ; or otherwise the trial by jury would be a
common nuisance. It is not intended to intimate that there was
not due fidelity to the court in this case ; but we must presume that
the counsel knew in what particular the judge failed or omitted
to answer ; and in common candor it was their duty, being appealed
to, to point it out. If they choose not to do so, for motives best
known to themselves, it is an *error arising, in part at least,
from their own omission ; and. cannot be a ground for
reversal. If any injury arises from it, it is a matter to be settled
between the counsel and the client.

As to the question of the onus, which has been so much dis-
cussed in the argument, it was a proper subject of remark before
the jury ; and is only material here, as bearing upon the facts
found by the jury.

Judgment affirmed.

Cited by counsel, 4 W. & S. 347; 8 Id. 315, 324; 7 Barr 477; 1 Harris
625 ; 1 Wright 487 ; 5 Id. 225 ; 4 P. F. Smith 399 ; || 25 Id. 130 ; 1 W. N. C.
148 ; Id. 45 ; 2 Id. 485 ; 7 Norris 289, s. c. 6 W. N. C. 445 ; 1 Outer. 236. ||

Cited by the court, 3 Barr 386; 4 Harris 123 ; 8 Id. 386: 5 Casey 160; 4
Wright 44 ; 9 Id. 83; 5 P. F. Smith 76 ; Brightly 264. || As to the taking of
choses in action as collateral security for an antecedent debt, not being a
giving of value, Ashton's Appeal, 23 Smith 162; Royer v. Bank, 2 Norris
249, s. c. 4 W. N. C. 87; s. P. Cummings v. Boyd, 2-Norris 372. Discount-
ing notes on the faith of collateral notes is giving value for the latter : Miller
v. Pollock, 3 Outer. 202. Choosing between two collaterals offered is not a
valuable consideration : Pratt's Appeal, 27 Smith 382.

Cited by court below, Early's Appeal, 8 Norris 417, s. c. 7 W. N. C. 187.

Cited by auditor, as to what is a giving of value. Lyons's Appeal, 4 W.
N. C. 350. U

See, also, 4 Whart. 258 ; 10 Watts 273 ; 6 Casey 138 ; 10 Id. 140 ; 5 Wright
226; 11 P. F. Smith 72.



1840.] OF PENNSYLVANIA. 236

[PHILADELPHIA, FEBRUARY 10, 1841.]

Bradford and Others against Bradford.
Flintham and Others against Bradford.

A will contained the following provisions : " As to my worldly goods of
all sorts and kinds, I will and order that they shall be put under the care
and he kept as a general fund, (except such as shall be hereafter otherwise
ordered in this will or any codicil hereto affixed,) by my executors and their
successors thereafter for the term of one hundred years from and after my
decease, and all the rents and profits to be equally divided between my four
children, S., T., W., and S., on the seventeenth of May and twenty-seventh
of November of each year, and on the death of either of them, the portion
of the deceased to be divided and paid to each of their children equally.
That on the death of either of my executors a successor shall be chosen by
the survivors of my children, and the children of the deceased, as one to
vote in the choice as representative of their parent, and on the death of all
my children, then by all the survivors who are entitled as above, and so or.
for the above-mentioned 100 years ; after which, the whole to be equally
divided among the survivors who shall retain the surname of Bradford and
shall be lineally descended from me." The testator gave an annuity to his
housekeeper, and certain articles of furniture, &c., to certain of his children,
and concluded with the appointment of executors. By a codicil, the testator,
reciting that his son S. had involved the brother T. in difficulty, directed
that his executors should annually, " as the portion of my estate becomes
due to the said S., pay three-fifths of the said legacy to the said T. till the
whole debt with the interest shall be liquidated, and the remainder to the
said S. ;" and reciting that his son W. had involved him in debt, he concluded
as follows : " it my will, that before they any part or parcel of the sum
devised to him, that my executors shall pay for the relinquishment of the
said debt three-fourths of the legacy, and the remainder to the said. W."
Htld, that the real estate of the testator did not pass under this will.

THESE were actions of ejectment brought in this court to July
*Term 1839, to recover a lot of ground in the City of r*no7
Philadelphia.

The plaintiffs claimed as heirs of Thomas Bradford, deceased,
who died in the year 1838, seised of the premises in question, and
leaving three children and several grandchildren, the issue of
deceased children ; and leaving a will and codicil in the following
words :

"Hoping that in him, who has preserved me to the age of
ninety years, and rendered me many blessings, I shall still find
favor hereafter, I leave the disposal of that immortal part that
decay eth not.

As to this mortal frame, I hope my children will deposit it along
side my dear Mary and my parents.

As to my worldly goods of all sorts and kinds, I will and order
that they shall be put under the care and be kept as a general fund,



237 SUPREME COURT [Dec. Term,

[Bradford v. Bradford.]

(except such as shall be hereafter otherwise ordered in this will or
any codicil hereto affixed), by my executors and their successors
thereafter for the term of one hundred years from and after my
decease, and all the rents and profits to be equally divided between
my four children Samuel F., Thomas, William and Susan, on the
seventeenth of May and twenty-seventh of November of each year,
and on the death of either of them, the portion of the deceased to
be divided and paid to each of their children equally.

That on the death of either of my executors a successor shall be
chosen by the survivors of my children and the children of the
deceased, as one vote in the choice as representative of their parent;
and on the death of all my children then by all the survivors who
are entitled as above, and so on for the above-mentioned 100 years,
after which, the whole to be equally divided among the survivors
who shall retain the surname of Bradford and shall be lineally
descended from me.

I give and bequeath to Ann Cleim, late Ann Field, for her care
and attention of me while my house-keeper, one hundred and
twenty dollars per annum, to be paid to her semi-annual or quar-
terly as may suit her, for and during her natural life; but if
alienated then the payment of it to cease, as I only mean it for her
benefit.

To my son Thomas I give my watch and my share in the Phila-
delphia Library, and to his daughter I give, agreeable to promise,
the large looking-glass with gilt frame. .

To my daughter Susan Ritter, I give the furniture of my room
except books and the three cases containing them, which must be
delivered to my executors, for the use of any of daughters that
may be doomed to keep maiden's hall.

I hereby nominate and appoint as executors to this will my son
Thomas, and my daughter Susan Ritter and Abram Ritter, made
the twenty-seventh of May 1835."

*Codicil.

" My son Samuel F. Bradford having involved his brother
Tho. Bradford, Junr., in difficulty and trouble by his non-payment
of notes and contracts endorsed and entered for him the said Sam-
uel, it will and it is hereby directed that my executors shall annually,
as the portion of my estate becomes due to the said Samuel Brad-
ford, pay three-fifths of the said legacy to the said Tho. Bradford
till the whole debt with the interest shall be liquidated, and the
remainder to the said Samuel.

And as my son William Bradford has involved me in his debt to
the family of James Darrach or some of them, it my will that
before they any part or parcel of the sum devised him, that my



1840.J OF PENNSYLVANIA. 238

[Bradford v. Bradford.]

executors shall pay for the relinquishment of the said debt, three-
fourths of the legacy, and the remainder to the said William."

On the trial, before Sergeant, J., at a Court of Nisi Prius held
in Philadelphia, a verdict was taken for the plaintiffs, subject to
the opinion of the court on the evidence and facts stated, with
liberty to enter judgment for such part of the premises, if any, as
the court should be of opinion that the plaintiffs were entitled to
recover in the action; or to enter judgment for the defendant, if
the court should be of opinion, that the plaintiffs were not entitled
to recover in this action.

Mr. Price, for the plaintiffs.

1. We claim for both plaintiffs on the ground of intestacy, and
as heirs at law. The real estate is in back lands and city lots, to
a large extent unproductive. The inconvenience would be great,
if locked up. The will is in artificially drawn. The first objection
is, that the will does not pass the real estate. No case shows, that
by the words worldly goods real estate passes: and nothing in the
will extends their interpretation. The only word that looks so is
rents: but personalty will produce rents. There are no words of
devise applicable to real estate. They are to be a general fund,
which is not applicable to realty. Johnson defines it a bank or stock
of money, contrasted with substantial acres. It means public
money invested public funds. It is to be kept by the executors,
whose province is the personalty. " I make my wife executor of
my goods and lands," held not to pass real estate. So the codicil
calls the share a sum a legacy. At the end of the 100 years,
when to be divided, no term is used, denoting real estate; nor by
any exceptions, does he imply he means real estate. Ram on
Wills 257, the heir at law has the elder and better title till sup-
planted by express words or necessary implication. This rule is
stronger in Pennsylvania, as the effects are equally divided : and
here by the will, two branches are cut off. This rule is recognised
in 2 Binn. 20. 3 Binn. 480, if the intention is doubtful, the heir
takes. 2 Str. 969, necessary implication must be *from r*oqq
words showing the plain intent of the testator. Here we *
say, there is none such. Co. Lit. 118, b., no estate of freehold or
inheritance is comprehended under the words bona or catalla.
Brown v. Dysinger, 1 Rawle 409, "respecting any earthly pro-
perty," at p. 413, 415, held not to be intended to include lands
being no words of limitation or perpetuity, Campbell v. Gilbert, 3
East 516, words "personal effects." Walker v. Walker. 3 Bos. &
Pnl. 375 ; 1 Wils. 333. Goods and chattels will carry lands, if
explained by the testator. 2 W. 65. Goods not so extensive as
chattels or effects, which by themselves, have been held not to carry
real estate. 1 Lev. 130. "I give all to my mother," lands won't



239 SUPREME COURT [Dec. Term,

[Bradford v. Bradford.]

pass. Finch. Pr. Ch. 491. Testator makes one executor of all
his goods, lands and chattels ; held not to pass lands. 6 Term
Rep. 610, all the rest of his estate and effects of what nature, &c.,
to A. and B., their executors, &c., to accumulate, lands held not to
pass, in consequence of the channel it was put into. So here it is
to executors to be elected by the heirs. Ram on Wills 31; 1
Swanst. 201; 1 Ves. & B. 466. Lord Eldon says, conjecture ia
not to be taken for implication : the latter can be only from neces-
sity, necessary implication. 5 Term Rep. 558; 2 Prest. Est. 178;
Id. 129, shows that the word estate used in the codicil, is not an
operative word. Portion would do as well. It cannot add to the
strength of the will. There is no devise to the executors ; it is
only to be put under their care. The legal estate descends to the
heirs, no words being used to pass a title to the realty. The trust
is only as to what comes into their hands. He does not say the
executors are to divide the rents and profits. If personalty, it
would of course come to them. Till the act of 1792, a power of
sale to executors did not pass them the title. 3 W. 291. Here
is no power of sale only a power to take care of the lands, which
does not pass the title; and the act of assembly does not apply.
1 Pow. Dev. 233, shows, that the common law was, that there was
only a naked authority. In Wright v. Hammon, Comyn's Rep.
232, it was held a mere recital did not amount to a devise. So
here there is as to the executors a mere recital. Therefore I say,
the heirs take the real estate and are to .divide the rents and pro-
fits ; the executors take the personalty, and are to divide its rents
and profits.

2. If the will is operative as real estate, then it vests in the
testator's children for life, with remainders over in fee to their
children. So that the plaintiffs, Bradfords (their father having
died in the lifetime of the testator and before the will), have an
immediate right. 3 Rep. 450, a devise of rents and profits gives
the fee. By the act of 8th April 1833, 9, Purd. 1033, a fee
passes without words of perpetuity, unless the contrary intention
appears. By the devise to the children after a parent's death (the
devise for 100 years being void), they take a fee. The restriction
is to those of the name of Bradford, lineally descended from him,
*401 w *" c k i 8 fco a fewer set *as purchasers. Till then all claim

J that are descended from him. Roney v. Stiltz, 5 Whart. 381.

3. The limitation over to the lineal descendants of the name of
Bradford, is a perpetuity and void, and therefore the grandchildren,
if entitled in fee, come in now. 2 Pow. Dev. 230. Objects of
substituted bequest must come in esse, in order to divest prior estate,
where they are to take on a contingency. An executory devise
must vest within a life or lives in being or twenty-one years after.
1 Cox's Rep. 324 ; 7 Bligh's New Rep. 202, 239. Supposing this



1840.] OF PENNSYLVANIA. 240

[Bradford v. Bradford.)

a term of 100 years to the executors, yet there is no limitation that
the devisees are to take within the legal term of twenty-one years,
&c., but may go beyond it. 2 Mer. 363, 388, Lord Chancellor.
Garret v. Rex, 6 Watts 14, bequest of income is bequest of fund.
2 Pow. Dev. 631.

Mr. Scott, contra.

1. The main question is, whether lands passed by the will. All
the clauses and words of the will and codicil are to be considered,
and the intent of the testator arrived at, which is the polar star.

2 W. Bl. 444, 450 ; 2 Prest. Est. 172 ; 1 Salk. 239 ; 1 Bro. Ch.
Gas. 437, ' all I am worth." Cas. tern. Talbot 286, " all my con-
cerns." Doe v. Langland, 14 East 370, "all the residue of my
property, goods and chattels." Harper v. Blain, 3 Watts 472; 1
Rawle 409, " any earthly property," not sufficient without inten-
tion. And at last no words are decisive ; but they are construed
by the intention, and that is discovered by other parts of the will.
Here are words applicable only to real estate as " rents and
profits." 1 Atk. 493 ; Id. 506 ; 1 P. & W. 416 1 ; 2 Ch. Cas. 205 ;

3 P. & W. 75 ; 1 Atk. 550 ; 2 Str. 1020. " Ground-rents, "4 Term
Rep. 89. "Remainder of the profits out of my whole estate." 3
R. 489 ; 5 Burr. 2638 ; 1 H. Bl. 223 ; 1 Ch. Cas. 262 ; 12 R.
414. Estate, 2 Term Rep. 656 ; 1 Yeatea 191 ; 11 East 290. No
words so fixed, but they must yield to the testator's meaning. Id.
246, realty may pass by "personal estate," being clearly intended.
2 Term Rep. 659, as to the provision (in the codicil) as to Samuel.
I am instructed to say, that the debt to T. Bradford could not
possibly be extinguished by three fifths of one-fourth of the per-
sonalty. 3 Burr. 1684 ; Cowp. 352, charge on estate extends it
to fee.

2. If the will passes real estate, then they have a term of 100
years. It is not now important who takes after them. In any
event the trust would not fail for want of a trustee. Is the estate
conveyed a perpetuity ? The length of the term in trustees does
not create this, when to subserve trusts. Perpetuity is as to cestui
que trusts. If not, 100 years is not ex vi termini, a perpetuity.
Gore v. Gore, 2 P. & W. 28 ; I Id. 332, good so far as within
the time, bad beyond. 2 Bro. Ch. Cas. 51 ; 2 Prest. Ab. 168,
to the unborn child of a person is good. This would take not
only children *of the four living at the testator's death, but r*94i
those born after. And this was what the chancellor was ^
speaking of, in 2 Mer. 363, cited by Mr. Price. The devise was
inseparable. There is no executory devise here except the limita-
tion over after the 100 years. 3 Term Rep. 86 ; Cowp. 656 ; 2
Prest. Ab. 168 ; 2 Term Rep. 245 ; 2 Ves. 644, execution of
powers good in part, bad in part. Cy pres. 1 Burr. 38. The
intention must be consulted. 2 Term Rep. 241 ; 3 Burr. 1626.



241 SUPREME COURT {Dec. Term,

[Bradford v. Bradford.]

Mr. Malhry, on ;he same side.

1. All his worldly goods, mean all his estate. The intention
governs. Ram on Wills 266 ; 3 Hawke's N. 0. Rep. 74. If, as
is said, the object of the testator was to gratify his pride and
ambition, by making his lineal descendants, of his name, rich one
hundred years hence, that would only be gratified by the advance
of his back lands. His personal estate would be worn out or
lost by this time. " Rents " is the peculiar term applicable to
the income and profits of real estate. By a devise of rents the
land passes.

2. No particular language is necessary to create a trust. Lewin
Trusts 44. The direction here that the property should be put
under the care of the executors, and kept as a general fund, and
they should distribute and liquidate debts, creates them trustees,
and gives such an estate in them as gives them a title to present
possession, which is sufficient now. Fletch. Trust 2. Where the
intention is clear, an estate in the trustees will be implied, to effect
the desire of the testator. 1 Pr. Wms. 505 ; Fletch. 23 ; 1 Eden's
Ch. 119 ; 3 Bos. & Pul. 178 ; 1 Eden's Rep. 36, and note, con-
taining a collection of the cases. Then as to the extent of the
estate of the trustees, the doctrine is, that they must be construed
to take an estate as large as is necessary for the purposes of the
trust, and commensurate with the duties imposed upon them.
Fletch. 23, and cases; 3 Barn. & Aid. 537. By the act of 24th
February 1834, 12, all powers not given by will to any one, are
to be deemed to be given to executors. Sec. 13 gives title to execu-
tors to remedy by action, &c. Sec. 14 gives surviving executors
power. Sec. 67 extended to administrators with will annexed.
The children of Samuel, by the act of 1833, are placed in the same
situation as the father. Newbold v. Pritchett, 2 Wharton 49, de-
cides that the father is still a propositus from whom the children
are to claim ; so that the children of Samuel would stand as he did.
Then there is a devise to the children, with a remainder to the
grandchildren. So far, it is unquestionably good. Supposing, as
perhaps is the case, Samuel dying in testator's life, his life estate
expired, then his children took in their own right. 2 Cruise 260,
tit. xvi. Rem.; Id. 259, 270, that a remainder for life expectant on
an estate for life, is a vested remainder. The grandchildren in
ease, at the testator's death, took a vested remainder for life. As
*249~| to those not in esse, it would be a *good contingent re-

' mainder, there being a freehold to support it. If the legal
estate is in trustees, there need not be a freehold to support it ; it
is then an executory devise. So that whether there is an executory
devise or contingent remainder, the grandchildren take; they must
be in existence within a life or lives in being, and twenty-one years
after. This is sufficient for the parties claiming now under the



1840.] OF PENNSYLVANIA. 242

[Bradford v. Bradford.]

will. 1 Eden's Rep. 124, 125, limitation in trust has the same
construction as an estate executed. Then as to the future limita-
tions one hundred years hence, we need not inquire ; they may be



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