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Yeates 343 ; Robinson v. Robinson, 2 Id. 257 ; 1 Roberts on
Wills 202 ; 2 Bl. Com. 381 ; Swinb. 552 ; Plowd. 541 ; Lewis's
Estate, 3 Whart. 162. The testator gives nothing more than a
life-estate to his wife and children. His object was to keep the
personal estate whole for the grand-children. Flintham's Appeal,
11 S. & R. 16 ; 2 Roper's Leg. 313, 327.

Mr. Fox and Mr. Mattery, contra. Though it be true that if
there are repugnant clauses in a will the last must prevail, yet if
they can be reconciled, it must be done. The reason of the provi-
sion appears in the case. The testator had sold Lindenberger a
farm, and taken a bond for paying her the interest. The word
44 dower" in common parlance, means the principal sum. That the
testator so used the word is plain from his language. The first
bequest standing alone would carry the principal. 1 Roper's Leg
173 ; Garret v. Rex 6 Watts 14. The last bequest requires the



1840.] OF PENNSYLVANIA. 76

[Campbell P. Gilbert]

executors to take so much not already disposed of. Was not this
principal sura disposed of? This sum was a specific bequest to
her. She might dispose of the bond.

Mr. Tilghman replied.

The opinion of the court was delivered by

KENNEDY, J. It is too plain to admit of a question, that the
seven hundred and fifty-five dollars and fifty-six cents is given by
the first clause of the will, in which it is mentioned, to the wife of
the testator absolutely. But it is contended by the counsel for the
plaintiff in *error, that the testator, by a subsequent clause, [-$77
has manifested very clearly his intention that she should L
only receive the interest thereof during her natural life. The sub-
sequent clause is in these words : " my executor hereinafter named
shall take so much money out of my estate, that I have not dis-
posed of, and loan it on interest; take sufficient security for the
same, so that the interest accruing from said money, and the interest
of my wife Elizabeth's dower, will make the yearly income of one
hundred dollars, which my executor, hereinafter named, shall pay
unto my wife Elizabeth in two equal half-yearly payments." In
the first clause, containing the bequest of the seven hundred and
fifty-five dollars and fifty-six cents, which, as it seems, was the one-
third of the purchase-money of a plantation sold by the testator to
a George Lindenberger, which the testator calls his wife's dower in
the plantation, he expressly wills that Lindenberger shall pay that
amount of money to his wife Elizabeth. Now it must be observed,
that although the testator, by the subsequent clause, directs that
she shall receive the interest of the seven hundred and fifty-five
dollars and fifty-six cents half-yearly from his executor, yet the
testator has placed no limitation whatever upon it as to its extent
or duration. If the testator had, in the latter clause, directed the
one hundred dollars to be paid to his wife annually, in half-yearly
payments, during her life, or any other limited period, then there
would have been some ground, perhaps, for saying that he merely
intended she should have the interest that should accrue upon the
debt owing by Lindenberger, and not the debt itself. But the debt
itself was not to be paid by Lindenberger until after the death of
the wife of the testator ; Lindenberger, however, was to pay the
interest upon it annually until the principal became payable ; and
this circumstance may have induced the testator to declare it to be
his will that the principal should be paid by Lindenberger to his
wife, in order to show the more clearly that he intended she should
have the principal as well as the interest : which latter he expressly
directs, in the subsequent clause of his will, to be paid to her gene-
rally without any limitation as to the continuance of such payment.



77 SUPREME COURT [Dec. Term,

[Campbell v. Gilbert]

This subsequent clause, therefore, instead of reducing the amount
of the bequest contained in the prior clause, would of itself, under
the principle laid down and recognised in the cases of Hellman v.
Hellman, 4 Rawle 450, Schriver v. Cobeau, 4 Watts 130, and
Garret v. Rex, 6 Id. 14, be sufficient to vest an absolute right in
the wife to the debt as well as the interest. The rule laid down in
those cases is, that where the interest or produce of a legacy is
given to, or in trust for a legatee, without limitation as to its con-
tinuance, the principal will be considered as bequeathed also. The
case of Adamson v. Armitage, 19 Ves. 416, is in all its most
prominent features, very much like the present. There, the testa-
tor, by a codicil to his will, made the following bequest : " I give
to my very trusty and valuable servant, Lydia Adamson, the balance
*781 ^ * m j account in Mr. Downing's hands, with the interest
thereon, to be vested by my executors in the hands of trus-
tees whom they shall choose and name, the income arising there-
from, to be for her sole use and benefit." Sir Wm. Grant, Master
of the Rolls, held that the legatee was entitled to the absolute
interest in the fund ; stating that " in the case of a devise of
realty, words of limitation must be added to give more than
an estate for life ; but in the case of personalty, words of qualifi-
cation are required to restrain the extent and duration of the in-
terest. Prima facie, a gift of the produce of a fund, is a gift of
that produce in perpetuity ; and is consequently a gift of the fund
itself, unless there be something on the face of the will to show
that such was not the intention. It is, however, not necessary in
this case to call that in aid to entitle the plaintiff to a decree, as
here is an express bequest in the first part of the codicil of the
entire fund ; and the only question is, whether there are afterwards
any expressions reducing to an interest for life, what was once in
terms an absolute interest. In the first sentence, there is the sub-
stance of the gift ; then follows a direction, that the income shall
be for her sole use and benefit. Admitting a gift of the produce of
a fund merely to create a life interest, it does not follow, that when
there is in the first instance a gift of the fund itself, the subsequent
direction will reduce it to a life interest merely, as this direction
does not extend beyond the income. The testator directs that the
fund shall not be immediately handed over ; but shall be vested in
trustees, "the income arising therefrom to be for her sole use and
benefit." But there is in that nothing inconsistent with her enjoy-
ment of the absolute property. These subsequent words appear to
me to be directory, not restrictive, meaning enjoyment in that
mode, not that she is not to have the absolute property." Every
thing advanced here by Sir William Grant, is directly applicable
to the case under consideration, and goes to show that the wife of
the testator became entitled, under the will, to the absolute property



1840.] OF PENNSYLVANIA. 78

[Campbell . Gilbert.]

in the fund itself, and that the subsequent clause did not divest her
of it, but directed merely the manner in which it should be enjoyed
by her. This is also corroborated by the circumstance that no
other disposition is made of this fund by the will, than that which
is in favor of the wife ; while in other cases the testator has not
only been particular in giving the interest of certain funds, to
restrain it expressly to the life of the legatee in each case, but after
the death of the same to give the absolute property in the fund over
to others. For instance ; he gives and bequeaths the interest of
four hundred dollars to his daughter Mary, during her natural life,
and after her death, the said four hundred dollars to be equally
divided among his grandchildren ; and in like manner the interest
of six hundred dollars to his daughter Ann during her natural life ;
and after her death, the said six hundred dollars to be equally divided
among his grandchildren. There is therefore strong reason to con-
clude, that *if he had intended to give his wife only a life in- r^g
terest, he would have done it in the same form that he has ^
observed in regard to his daughters Mary and Ann. The judgment

Judgment affirmed.

|| Cited by counsel, 10 Smith 508. ||

|| Cited by the court, Keene's Appeal, 14 Smith 274, as accurately stating
the rule as to the construction of a bequest of the produce of a fund, i. e., it is
a gift of the fund, unless there be something on the face of the will to show
that such was not the intention. And see as to the general rule, Pennsylva-
nia Co.'s Appeal, 2 Norris 312 ; Millard's Appeal, 6 Id. 457 ; and its
limitations, Bent ley r. Kauffman, 5 Id. 99. ||



79 SUPREME COURT [Dec. Term,



[PHILADELPHIA, JANUARY 11. 1841. J

Hubbert against Borden and Another.

IN ERROR.

1. Parol evidence is admissible to prove that an agreement in writing not
under seal, between A. and B., for the delivery of certain goods by B. to A.,
was in fact made by A. as the agent of C. and for his benefit.

5. An agreement was made by the defendant with T. & M., beginning as
follows : " I have this day contracted with and sold to T. & M. all the starch
which I may manufacture this year, or have manufactured by my agency,"
&c. ; binding himself that the quantity to be manufactured by him during
the year should not exceed 100U barrels, "the fine at five cents, and the su-
perfine at seven cents per pound, payable in cash on delivery," &c. The
agreement further provided, that if wheat should advance so as to exceed
$1.20 per bushel, a proportionable advance should be made in the pound of
starch ; and if wheat should decline, a corresponding deduction should be
made, &c. The defendants delivered a part of the starch, but refused to
deliver more, and sold and delivered other starch of his manufacture to other
persons: Held, 1. That an action for the recovery of damages for the breach
of this contract might be maintained in the names of B. & B., for whom T,
& M. were the agents, and upon whose account the contract was made. 2.
That B. & B. had a right to bring the action before the expiration of the
year mentioned in the contract. 3. That the judge below was right in charg-
ing the jury, that in the absence of evidence on the part of the defendant,
they might assume that one thousand barrels were manufactured by the
defendant ; the action having been commenced about a month before the
expiration of the year ; and that as respected the price of wheat, the de-
fendant having omitted to produce evidence, they might presume most
strongly against him within the limits of the contract and of the testimony.

ERROR to the District Court for the City and County of Phila-
delphia.

Holden Borden and Tully Bowen, trading as Borden and Bowen,
brought an action on the case in the court below to December Term
1835, against John Hubbert. The declaration set forth in the first
*801 * count > that "whereas heretofore, to wit, on the 1st day of
April, in the year 1835, at the county of Philadelphia
aforesaid, the said plaintiffs, by their agents Thomas and Martin,
at the special instance and request of the said John Hubbert, bar-
gained with the said John, to buy of him the said John Hubbert,
and the said John then and there sold to the said plaintiffs, all the
starch which he, the said John, might manufacture during the said
plaintiffs, all the starch which he, the said John, might manufacture
during the said year, or have manufactured by his agency, the
quantity not to exceed 1000 barrels ; the tine at five cents per
pound, and the superfine at seven cents per pound, and the barrels
twenty cents each; deliverable on board of vessels for Providence,
or elsewhere, free of expense ; payable in cash on delivery. And



1840.] OF PENNSYLVANIA. 80

[Hubbert . Borden.]

in consideration that the said plaintiffs, by their said agents, at the
like special instance and request, &c., had then and there under-
taken and faithfully promised the said John Hubbert, to accept and
receive the said starch, and pay him for the same, at rates or prices
aforesaid, he, the said John Hubbert, undertook then and there, &c ,
to deliver the said starch to them the said plaintiffs as aforesaid.
And although, as the said plaintiffs in fact say, the said defendant
hath made, or procured to be made by his agency, during the period
aforesaid, large quantities of starch, and the time for the delivery
of the said starch hath elapsed, and the said plaintiffs have always
been ready and willing to accept and receive the said starch, and
pay for the same at the rates and prices aforesaid, to wit, at the
county aforesaid, yet the said John Hubbert, not regarding his said
promise and undertaking, but contriving, &c., to deceive and defraud
the said plaintiffs in this behalf, did not nor would as aforesaid,
deliver the said starch, or any part thereof, to the plaintiffs, at the
county aforesaid, or elsewhere, but wholly neglected and refused so
to do ; whereby the said plaintiffs have lost and been deprived of
divers great gain and profits, which might and otherwise would
have accrued to them, from the delivery of the said starch to them,
the said plaintiffs as aforesaid, to wit, at the county aforesaid.

2. And whereas also, afterwards, to wit, on the first day of April
1835, at the county aforesaid, in consideration that the plaintiffs,
at the instance and request of the said defendant, had then and
there bought of the defendant all the starch which he might manu-
facture during said year, or have manufactured by his agency, at
and for certain prices then and there agreed upon between them,
he, the said defendant, then and there undertook, and then and
there faithfully promised the said plaintiffs well and truly to deliver
to them the said starch, whenever he the said defendant should be
thereunto afterwards requested ; and the said plaintiffs in fact say,
that although the said defendant made or procured to be made by
his agency large quantities of starch during the time aforesaid, and
the said plaintiffs afterwards, to wit, on the 30th day of May and
the eighth of June in the said year, as well as on divers other occa-
sions, at the county aforesaid, requested the defendant to deliver
them the starch *so made as aforesaid, and were then and r*o\
there willing to pay the defendant for the same, according
to the terms of the said sale ; and although the plaintiffs were
ready and willing and offered to accept and receive the said starch
from the said defendant, yet the said defendant, not regarding his
said last-mentioned promise, but contriving as aforesaid, did not,
when requested as aforesaid, nor at any other time before or since,
deliver to the said plaintiffs the said starch, or any part thereof;
but hath hitherto wholly refused, and still doth refuse so to do ;
whereby the said plaintiffs have sustained great loss and damages ;

6 WHARTON 6



81 SUPREME COURT [Dec. Term,

[Hubbert v. Borden.]

to wit, $2000, at the county aforesaid ; and therefore they bring
suit," &c.

The defendant pleaded non assumpsit ; and upon this issue the
cause came on for trial before Petti t, Pres't, on the llth of Jan-
uary 1838, when the plaintiffs offered in evidence the contract or
agreement upon which their claim was founded, proposing at the
same time to follow it with evidence, that in respect to this con-
tract, Thomas & Martin were only the agents or factors of the
plaintiffs ; and that the defendants knew that they were acting in
that capacity ; and that the plaintiffs were the parties in interest in
the contract.

To this evidence the defendant's counsel objected ; but it was
admitted by the judge, and read to the jury, as follows, and excep-
tion taken.

" I have this day contracted with and sold to Thomas & Martin,
all the starch I may manufacture this year, or have manufactured
by my agency, hereby binding myself that the works which I am
interested in and control, being two mills, shall not be increased
within the above specific time, and that the quantity shall not
exceed 1000 barrels ; the fine at 5 cents, and the superfine at 7
cents per pound ; barrels 20 cents ; deliverable on board of vessels
bound for Providence, or elsewhere, free of expense ; payable in
cash on delivery ; the quantity warranted to be equal to that
which I have delivered them this season. An adequate allow-
ance shall and will be made for any which shall not prove of
regular and approved quality, agreeable to this warrantee, or the
starch shall be returned, as may be most satisfactory. It is agreed
and understood, that if wheat advances so as to exceed $1.20
per bushel, a proportionable advance shall be made in the pound
of starch, equal to one-third of a cent per pound, for ten cents on
the bushel, and that if wheat should decline so as to go below $1.00
per bushel, a corresponding deduction in the price of starch shall
be made.

Philada., April 1, 1835.

(Signed) JOHN HUBBERT.

It is understood that I am to allow Thomas & Martin their
commission on the amount of the above contract and sale, 5 per
cent.

(Signed) JOHN HUBBERT."

*821 *The plaintiffs then produced one Samuel C. Stokes as a

witness, who testified that he was present at the store of

Thomas & Martin when the paper was signed. He was then asked

what passed on the occasion. The defendant's counsel objected,



1840.] OF PENNSYLVANIA. 82

[Hubbert v. Borden.]

but the witness was allowed by the judge to answer; and testified
that the substance of the conversation was, that the contract wag
made by Thomas and Martin with the defendant, on account of the
plaintiffs. The starch was to be put on board of the Providence
packet, to be sent to the plaintiffs. The starch was not furnished
according to the contract. The witness then stated, that he called
on the defendant about the beginning of June 1835, on the subject.
The defendant's counsel objected to the witness testifying as to any
conversation between him and the defendant: but the objection was
overruled; and the witness said: "I asked him if there was any
starch ready for Thomas & Martin on the contract. He stated he
had had some, but had sold it. I told him that shipments of his
starch were observed ; and we had had complaints from our friends
in Providence that his starch was arrived there in other hands. I
told him that Borden & Bowen stated that they thought they had
contracted for all the starch he could make during the season. He,
the defendant, stated, that the contract amounted to nothing, as it
could be evaded ; that his name was not branded on the starch that
was shipped, but his son's name, J. A. Hubbert. I asked him if
he had no interest in it. He stated distinctly he had the profits
arising from it, and that he superintended its manufacture. He
said he had sold to Fales, Lathrop & Co., to Rhodes, and to Potter
and McKeever, three distinct lots, about sixty barrels. He men-
tioned he had obtained about six cents for the fine. I think this
was the 30th of May, or beginning of June. I told him I was in-
structed by Thomas & Martin to request him to comply with his
contract : that they should hold him accountable for not so doing.
He said very well : he would be considered liable, if he must be so.
I told him I was instructed to tell him so. He did not afterwards
deliver or produce the captain's receipts for any as before."

The plaintiff's counsel then offered in evidence certain letters of
the plaintiffs to Thomas & Martin, to show the authority of the
latter to make the contract in question ; which were objected to on
the part of the defendant, but admitted and read to the jury.

The witness Stokes then further testified, that there had been a
previous contract between the plaintiffs and defendant, viz. in May
1834. This contract was offered in evidence by the plaintiff's
counsel, and objected to : but admitted by the judge, and read to
the jury, as follows :

" I have this day contracted with and sold to Thomas & Mar-
tin all the starch which I may manufacture this year, or have manu-
factured *by my agency ; hereby binding myself that the r *oo
works which I am interested in and control, being three
mills, shall not be increased within the above specific time, and that
the quantity shall not exceed 1200 barrels; the fine at five cents,
and the superfine at seven cents; barrels twenty cents; delivera-



83 SUPREME COURT [Dec. Term,

[Hubbert v. Borden.]

ble on board of vessels for Providence or elsewhere, free of expense ;
payable in cash on delivery ; the quality warranted to be equal to
that which I have already delivered them this season. An adequate
allowance shall and will be made for any which shall not prove of
regular and approved quality, agreeable to this warrantee ; or the
starch shall be returned, as may be most satisfactory. It is agreed
that if wheat advance so as to exceed $1.20 per bushel, a propor-
tionate advance shall be made on the pound of starch, equal to one-
third of a cent per pound, for ten cents on the bushel ; and that if
wheat decline so as to go below $1.00 per bushel, a corresponding
reduction in the price of starch shall be made.
Philada. May 19, 1834.

" It is understood that I am to allow Thomas & Martin their com-
mission on the above contract and sale, say on the fine starch five
per cent, and on the superfine two-and-a-half."
" Agreed to and confirmed by

(Signed) THOMAS & MARTIN.

(May) 5 Mo. 19, 1834."

The witness then proceeded :

" Mr. Hubbert agreed to supply the starch according to the con-
tract; he supplied none after to my knowledge. I have no knowl-
edge of any other contract. Mr. Hubbert said they would not
have the rough, and they should not have the smooth. He had
two mills in 1835 ; three mills in the same factory in 1834. I
have no knowledge of the profits of starch bought at that rate.
The barrels would average about two hundred and then pounds
gross, and one hundred and ninety net. We paid for starch on
other contracts made in 1835, the market price at the commence-
ment of the season, five and one-third for fine, and seven and one-
third for superfine. In April and May the market varied from six
and one-third for fine to eight and one-third for superfine. The
rates varied throughout the season between those prices, governed
very much by the price of wheat. Starch rose and fell as the price
of wheat rose and fell. Wheat varied from $1.27 or $1.28 to
$1.60, per bushel throughout the season ; like flour, starch was
influenced by wheat. Mr. Bowen was on here just before this con-
tract was made. He was advised in the store of Thomas & Martin
of the progress of the contract." The counsel for the plaintiffs
then proposed to ask what passed in the counting-house of
jito^-i Thomas & Martin between *Mr. Bowen and them in
regard to their authority to make this contract prior
to its execution, to which the counsel for the defendant objected,
and the judge overruled the objection, to which the defendant
excepted, and the question was put by the plaintiff's counsel to the



1840.] OF PENNSYLVANIA. 84

[Hubbert v. Borden.]

witness, who said, " The contract was presented in the same shape
as the year before. A copy of the proposed contract was shown to
Mr. Bowen. Thomas & Martin stated to him that Hubbert made
difficulties about signing that contract. Mr. Bowen was surprised
that he should hesitate to sign the contract, and addressed him a
note. I don't pretend to say it was the same paper: it was the
same in purport. I read them both; was familiar with them. I
did not see the note. I saw Mr. Bowen go to the desk and write.
I don't know to whom the note was given. The contract was signed
about three days after or four." The witness being cross-examined
by the defendant's counsel, further said, " The contract was exe-
cuted at No. 10 North Front street. I don't know which of the
firm of Thomas & Martin were by at the time ; one of them was
by. I can't say which. I don't recollect whether the contract was
produced at the time by Mr. Hubbert or by one of the firm. I
can't say if the contract was drawn on the day it was signed, or
whether it was drawn while the parties were there. I was present
at the counting-room when this contract was talked of previous to
the first of April 1835. I can't say if Mr. Hubbert signed at the
counting-room or brought it there signed. I can't say if the con-
tract was executed or in a state of being made at the time it was
produced there. I can't give any answer on the subject whether I



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 9 of 75)