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Ejectment, by Maturin L. Delafield and wife, provided that her share in his estate should vest in right of the wife, the said Maturin L. Dela- in his executors in trust, similarly to that of Mrs. field, trustee under the will of James Ross, Jr., Aspinwall. Mary Jane Coleman having died | and Annie R. Aspinwall, against Andrew Jack without issue in the lifetime of the testator, her man et al., for a lot of ground in the city of share, under the provisions of the will, accrued Pittsburgh of which James Ross, Sr., died seized, to those of the other two granddaughters. and which H. Brady Wilkins, Esq., his administrator de bonis non cum testamento annexo sold and conveyed to the defendant Jackman. The plaintiffs, denying that any title passed by the administrator's deed, claimed under the will of the decedent. Plea, not guilty.

At the trial (before KIRKPATRICK, J.) the following facts appeared: James Ross, Sr., who died in 1847, by his will, proved December 1, 1847, after providing for the payment of his debts, and after making several specific devises and bequests, disposed of the residue of his estate, including the lot in controversy, as fol

lows:

James Ross, Jr., died in 1851, having devised inter alia, his interest in the residuary estate of his father to his executors in trust, and Maturin L. Delafield was subsequently appointed trustee under the will. Mrs. Livingston died in 1848, leaving surviving her a daughter, Mary C., who subsequently intermarried with Delafield. Mrs. Aspinwall's husband died in 1854.

Dr. Addison having renounced the executorship in 1853, and having subsequently died, letters of administration d. b. n. c. t. a. were issued to Wilkins, who, there having been no transfer or division of the residuary estate, on May 9, 1872, sold and conveyed the lot in con

I do hereby devise and bequeath to my executors here-troversy, being a part thereof, to Jackman, one inafter named, all the rest and residue of my estate, real of the defendants, and under whom the other and personal, whatsoever and wheresoever, with full defendants claim. power and authority to take possession thereof, to insti- The plaintiffs asked the Court to charge: (2) tute suits for the recovery of the same, to compound and That the administrator's deed conveyed no title. compromise all disputes, settle all differences, and execute all necessary releases, to lease the real estate not herein- The Court directed the jury to find for the plainbefore specifically devised according to their discretion, to tiffs, subject to the opinion of the Court in banc sell and convey the said real estate in such manner as on the question of law involved in this point. they shall think proper, either at public or private sale; Verdict accordingly for plaintiffs subject to the to appoint and pay agents to assist them in the adminis-point reserved. Subsequently the Court entered tration of the estate; to assign and transfer mortgages, judgments and bonds, notes or stocks, and to convey real judgment upon the verdict, whereupon the deestate to any of my devisees or legatees, towards satisfac-fendants took this writ, assigning for error, inter tion of their respective devises or legacies; to carry into alia, the entry of the judgment for the plaintiffs effect all contracts made by me in writing for the sale of upon the question of law reserved. real estate, and to execute and deliver all deeds necessary

for that purpose; to receive purchase-money and to give

acquittance for the same; . . .

I direct my said executors to pay or transfer the one equal half part of the same rest and residue of my real and personal estate to my son James, absolutely; the remaining one-half part I direct to be equally divided among my three granddaughters, to wit: Annie, wife of George W. Aspinwall; Harriet Coleman, and Mary Jane

Coleman.

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M. W. Acheson (Fetterman & Johnston with him), for the plaintiffs in error, cited the Act of March 12, 1800 (3 Sm. L. 433, Purd. Dig. p. 417, pl. 64, 65, and 66), and argued that it was decisive of the matter; that it was broader in its scope than the Act of 1834, which re-enacted some of its provisions; and that it remained in force where not expressly repealed and supplied by the Act of 1834.

Meredith's Estate, I Pars. Eq. 433.

But aside from this, the power to sell here given was for the purpose of distribution, and hence devolved upon the administrator d. b. n. t. a.

I direct that any property which my granddaughter, Ann Ross Aspinwall, may become entitled to under this will, whether real or personal, shall be vested in my executors in trust to receive the rents and profits of the real estate and the income of the personal estate during the joint lives of herself and of her husband, and to pay the same to her for her separate use, free from any control of c. her said husband; and upon the further trust in case of the decease of her said husband before her, to transfer the said real and personal estate to her absolutely; and upon the further trust in case of her decease before her said husband to distribute the said real and personal estate among such as would be entitled to her estate under the intestate laws, except the said husband, who is to have no part thereof. . . .

...

The testator appointed his son James Ross, Jr. (one of the above named devisees), and Dr. William Addison, his executors. Harriet Coleman having intermarried with Eugene Livingston, the testator added a codicil by which he

Evans v. Chew, 21 Sm. 47.

Lantz v. Boyer, 31 Sm. 325; s. c., 2 WEEKLY NOTES, 654.

See also Keefer v. Schwartz, 11 Wr. 503. D. T. Watson and H. Burgwin (Malcom Hay with them), contra.

The Act of March 12, 1800 (supra), conferred than the Act of February 24, 1834 (P. L. 70; no greater powers on administrators d. b. n. c. t. a. Purd. Dig. p. 419, pl. 74), and this later Act wholly repealed and supplied the former.

Ross v. Barclay, 6 Harris, 183.
Waters v. Margerum, 10 Sm. 44.

THE COURT. The plaintiffs

And both have reference to powers given to Nov. 12, 1877. executors as such virtute officii, and do not ex-in error based their defence in the Court below

tend to a power of sale collateral to or unconnected with their duties as executors.

Evans v. Chew, supra.

on the deed of H. Brady Wilkins, Esq., administrator de bonis non cum testamento annexo of James Ross, Sr., deceased. They contended The testator confided the power of sale to his the power of sale, given by the testator to his son and his friend, because of his confidence in executors, was rightly exercised by the administheir personal fitness. It was to be exercised by trator with the will annexed, and that by his them in their discretion; and, if in part for the deed a good title became vested in Andrew Jackpurpose of distribution, as to the shares of Mrs. man the vendee. The Court was accordingly Aspinwall and Mrs. Livingston, it was certainly requested to charge the jury that their verdict for investment, i. e., for a collateral purpose. should be for the defendants. This instruction But it was not for distribution (1) because it was was refused by the learned Judge, and a verdict merely discretionary, and (2) because the testator was directed pro forma in favor of the plaintiffs, plainly intended that the real estate itself should subject to the opinion of the Court in banc on be divided among the objects of his bounty. the question of law raised by their second point, Moreover the power of sale was conferred upon viz., whether the deed in evidence did or did the executors in connection with other powers, not convey a title to the lot in controversy. which, it cannot be denied, were given them as This question was decided adversely to the detestamentary trustees. If so, how can it be fendants, and judgment was entered on the verclaimed that the power of sale was to be ex-dict against them. This action of the Court ercised by them virtute officii? Can one power forms the subject of complaint in the several be selected out of a half dozen conferred in the assignments of error. same sentence, in the same connection, and as part of one general purpose, which is to be exercised virtute officii, when it must be admitted that the others were given them as testamentary trustees?

The only consistent theory of the purpose for which this power of sale was given, is that it was to be exercised by them in connection with their duties as testamentary trustees. Again, in Keefer 7. Schwartz, and Evans v. Chew, cited by the other side, the power to sell was imperative and for the purpose of immediate distribution.

We contend, therefore, in spite of Lantz v. Boyer, cited by the other side, that the executors were to exercise this power of sale as testamentary trustees, and that it did not devolve upon the administrator d. b. n. c. t. a.

Ross v. Barclay, supra. Waters v. Margerum, supra. Evans v. Chew, supra. Again, one-half of the residuary estate vested absolutely in James Ross, Jr., on the death of his father in 1847:

[AGNEW, C. J. Was it ever vested in him by an act of the executors or by order of the Court?] No, but we contend that, he being one of the executors, a formal conveyance was unnecessary. The other half vested in his executors as testamentary trustees of Mrs. Aspinwall and Mrs. Livingston; and the express object of the trust being to protect their shares from their respective husbands, it continued only until this purpose

was fulfilled.

Yarnall's Appeal, 20 Sm. 339.

Culbertson's Appeal, 26 Sm. 145.

At the time of the attempted conveyance, therefore, the whole of the title was vested in the defendants in error.

The only question presented is the authority of the administrator de bonis non to execute the power of sale given by the testator to his executors. If it was intended to be exercised by them as executors by virtue of their office, on their decease, resignation, or removal, it would devolve on the administrator with the will annexed.

Whether the power was to be exercised by them as executors, or otherwise, must be determined by the provisions of the will. After devising portions of his real estate, and making sundry bequests, the testator devised and bequeathed to his executors all the rest and residue of his estate, real and personal, with full power and authority to take possession thereof; to institute suits for the recovery of the same; to compound and compromise all disputes; "to sell and convey the said real estate in such manner as they shall think proper, either at public or private sale," and "to receive the purchase-money and give acquittance for the same." He then directed his executors "to pay or transfer the one equal half part of the same rest and residue” of his real and personal estate to his son James absolutely, and directed the remaining one half part to be equally divided among his three granddaughters. It is very clear that full power was thus given by the testator to his executors to sell the residue of his real estate for the purpose of distributing the proceeds thereof, in connection with the residue of his personal estate, among the objects of his bounty. Nor is this authority restricted or in any manner affected by the creation of the trusts in favor of his granddaughters. It has been definitely settled by this Court that where such power of sale is given by will to the executors therein named, it belongs to them

virtute officii, and may be exercised by the administrators with the will annexed under the provisions of the Act of February 24, 1834. (Evans v. Chew, 21 P. F. Smith, 51; Lantz v. Boyer, 31 P. F. Smith, 325.) The question before us has been distinctly ruled in these cases, and it is unnecessary for us to repeat what is there so well said by our brother SHARSWOOD.

The judgment is reversed and judgment is now entered in favor of the defendants below, on the question of law reserved, non obstante veredicto. Opinion by STERRETT, J.

[The above case, and the precedents cited, appear to have been all decided under the Act of 1834, and upon the assumption that the Act of 1800 was thereby supplied and repealed. A distinction between the two Acts was commented upon by KING, J., in Meredith's Estate (1 Pars. Eq. Rep. 433), and the question was raised whether the Act of 1834 was coextensive with and supplied all the provisions of the Act of 1800. SHARSWOOD, J., in Evans v. Chew (21 Sm. 50), alluded to the question "whether the Act of 1800 was or was not supplied and repealed by the Act of 1834," but considered it immaterial to the point

under consideration.

In the above reported case, counsel for plaintiff in error relied on the Act of 1800, and argued that it remains in force notwithstanding the Act of 1834; but did not refer to the express provision of the later Act of April 22, 1856, 88 (P. L. 533) "That nothing in any Act of Assembly contained shall be taken or construed to repeal or impair the Act of the 12th of March, 1800," etc. In Bell's Appeal (16 Sm. 498) it was contended by counsel that if the Act of 1834, 12, repealed the Act of 1800, then the Act of 1856 (supra) repealed the 12th section of the Act of 1834; but the Court held, WILLIAMS, J., delivering the opinion "that the 12th section of the Act of 1834 was not intended to repeal or impair the Act of 1800. but merely to regulate the mode or form in which the power should be exercised." The Court further held that "there is no inconsistency between the two Acts, and it would be a strained construction of the Act of 1856 to

Appeal from the Common Pleas of Delaware County.

This was an appeal from a decree confirming the report of an auditor appointed to distribute a fund arising from a sheriff's sale of real estate. The facts as found by the auditor were as follows:

Be

George Elliott was the owner of a lot on the southeast corner of Flower and Catherine Streets, in the borough of South Chester, containing 75 feet on Flower Street and 100 feet on Catherine Street. This property was divided into two lots, No. 1 and No. 2. Upon No. 1, which had a frontage of 28 feet on Flower Street, there was a frame building used as a store and dwelling, to which were annexed back buildings. On the corner of No. 2, diagonally opposite the store and dwelling, there was a stable used in connection with the store and dwelling. Elliott made an assignment for the benefit of creditors. fore the premises were reconveyed to him by the assignee, by order of the Court, he moved the frame stable to the Catherine Street front of the lot, added another story to the back buildings of the store and dwelling, connected the stable with these back buildings by second stories (leaving an open passage way under the connection), and thus converted the back buildings and stable into four small dwelling houses fronting on Catherine Street, called Nos. 1, 2, 3 and 4. Houses No. I and 2 were completed by putting a second story on the back buildings. Houses 3 and 4 were alterations of the stable, which was not raised in height. These houses were of frame, all under one roof, and were not connected with each other nor with the main building by doors or pasSage ways. Immediately after their completion, Elliott created a mortgage upon the store, dwelling, and lot to the Citizens' Building Association, the appellees. The lot was sold by the sheriff as an entirety, under the judgment of Reilly & Wilford, and the proceeds of sale were paid into Court for distribution. Mechanics' liens were filed against both the lots, and judgments were Mechanic's lien-Unapportioned claim for al- entered against them. Among other claims was terations and repairs—Act of June 16, 1836—terials furnished the houses for which he filed an that of David S. Bunting, the appellant, for maPostponement to other creditors-Sheriff's sale. terials furnished the houses for which he filed an unapportioned lien for alterations and repairs, August 13, 1876, under the Act of May 1, 1861, against both the lots as an entirety. This lien was filed prior to the recording of the mortgage.

hold that it was intended to repeal by implication the 12th section of the Act of 1834."]

Reilly & Wilford v. Elliott.
Bunting's Appeal.

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A mechanic filed a lien for materials furnished a store, dwelling, and two houses, under the Act of May 1, 1861, but did not apportion the claim. The alterations and repairs, for which the materials were furnished, were made in the back buildings, store, dwelling, and in the stable, which were converted into four distinct houses. Upon the distribution of the proceeds of a sheriff's sale of the property under a mortgage upon the entire lot, the mechanic claimed that his lien was prior to that of the mortgagee, because it was first entered:

Held (affirming the decree of the Court below) that the claim, not having been apportioned according to the requirements of the Act of June 16, 1836, should be postponed to the liens of the other creditors.

The auditor reported that houses Nos. 1, 2, 3 and 4 were separate and distinct buildings, although there was not that newness of structure in the main part of the building, or that entire change of external appearance which denotes a different set of buildings from those which gave place to it. The auditor was therefore of opinion that the lien, being unapportioned among the

four houses, should under the Act of June 16, [ence the law makes in such cases is in the time 1836, be postponed to the other creditors. from which the lien is to take effect. When filed against a new building, it takes effect from its commencement; when against an old building, from the time of filing.

To this report David S. Bunting excepted. The Court, after a hearing upon the exceptions, delivered the following opinion:

"The report of the auditor is confirmed, and distribution is awarded accordingly."

Bunting took this appeal, assigning for error the decree of the Court confirming the auditor's report.

J. B. Hinkson for the appellant.

"The exception pressed upon the argument was that the Auditor erred in finding that the lien of D. S. Bunting should have been apportioned among the four houses, and that for want of such apportionment it must be postponed to all other lien creditors. The claim filed shows that the materials were furnished for at least three separate and There are two questions raised in this case. distinct buildings; one a store and dwelling, and (1) Should Bunting's lien have been apportioned? the others two dwelling houses. The Act of As-(2) If so, does the fact of its not having been sembly of June 16, 1836 (P. L. 669, Purdon's Dig. 1033, pl. 43), directs that 'In every case in which one claim for materials shall be filed by the person preferring the same, against two or more buildings, owned by the same person, the person filing such joint claim shall, at the same time, designate the amount which he claims to be due to him on each of such buildings, other-repairs. The auditor found that the buildings wise such claim shall be postponed to other lien creditors.'

apportioned postpone it to all other liens, mortgages, and judgments entered after the buildings were finished, even up to the day of the sheriff's sale, or only to those liens existing before the repairs were begun, and to the claims entered on account of the repairs?

The materials were furnished for alterations and

were not new erections. It would follow then that they were subject to the appellant's lien by reason of their connection with the old buildings. It is the old buildings that have been repaired and altered, and they are therefore under the Act of May 1, 1861, subject to the lien for alteration and repairs. There was no new building. There was merely an extension of the old building, against which there can be but one lien.

It is no answer to say that the purpose is to use these alterations distinct from the old buildings. The test is not the purpose, but the external appearance.

Miller v. Hershey, 9 Sm. 65.

A lien for the erection of a house and barn

need not be apportioned.

Lauman's Appeal, 8 Barr, 473.

A fortiori, a lien for their repair and alteration. The old store and dwelling, with the stable, was the basis of these alterations and repairs, and they constitute but one structure. There was not sufficient change of external appearance to put the appellant on his guard.

"Mr. Bunting's claim depends upon this Act of Assembly, and as he has disregarded its plain directions, he must suffer the penalty, which is, to be postponed to other lien creditors. His counsel contends that the meaning of this Act is, that he shall only be postponed to such liens as were upon the premises when his claim was filed. The case of Thomas v. James (7 W. & S. 381) decides the point squarely against this view. The second point, raised by the counsel for Mr. Bunting, is that the Act only refers to Mechanics' Liens, and that the failure to apportion will only postpone the claim to other Mechanics' Liens, but not postpone it as to judgments, mortgages, etc., subsequently entered. The language of the Act will not sustain such an argument, and the reason and spirit of the law is in direct conflict with such a construction. Where a single claim is filed against several houses, it is impossible for future creditors, purchasers or others, to know what sum is chargeable against each. This is as necessary to be known by a purchaser or judg- If a mechanic file an unapportioned claim unment creditor and mortgagee as by a mechanic order the Act of June 16, 1836, he is postponed material man, and for the protection of them all to other creditors, who are entitled to liens under the law requires an apportionment. The Me- the Act. By the language of the Act an unapchanics' Lien Act, being against the policy of the portioned claim is postponed to "other lien credcommon law, is to be strictly construed. Its lan-itors," that is, lien creditors under the Act, but guage is that the unapportioned claim shall be the amount designated shall not be extended as postponed to other lien creditors. If it meant against "other creditors having liens by judgto restrict the postponement to a class of lien ment, mortgage, or otherwise." Why change creditors, it should have said so; otherwise it must the language if the creditors of the last clause be construed to mean all lien creditors of what-are the same as those of the first? Evidently the ever kind. creditors in the last clause are everybody in con"The fact that the materials were furnished for tra-distinction to those in the first clause, which repairs to old buildings, makes no difference as is confined to creditors under the Act-mechanto the duty of apportionment. The only differ-ics. Creditors of the last clause, while protected

by an apportionment, are not to be benefited by | receipt for interest to April 11, 1870, apparently the omission of the mechanic to make an appor- in the handwriting of Buchanan; but the receipt tionment, unless they are mechanics. did not state by whom the payment had been

D. M. Johnson (with whom were W. J. Har-made. It was further stated that Singmaster, the vey and Orlando Harvey), contra.

The case is ruled by

Malone's Appeal, 29 Sm. 481.

Thomas v. James, 7 W. & S. 381.

THE COURT.

There seems

April 4, 1878. to be no just ground for the reversal of this decree as to the appellant.

Decree affirmed and appeal dismissed, with costs to be paid by the appellant. PER CURIAM.

July, '75, 5.

accountant, was himself a creditor of the estate to a large amount, and that the assets only yielded about 25 per cent. of the debts.

Exceptions to the report of the auditor allowing this claim were filed by the accountant, and this appeal was taken by him from the decree of the Court dismissing the exceptions and confirming the report, which was assigned as error. Edward Brady, for appellant.

This indorsement, in the handwriting of the claimant, was not sufficient to charge the estate. Shaffer v. Shaffer, 5 Wr. 51.

Unless the payment is made by that one of the joint makers whose estate it is sought to charge Jan. 25, 1878. the statute is not barred.

Singmaster's Appeal. Assigned Estate of H. W. Black.

Coleman v. Fobes, 10 H. 156.

The private estate of Black cannot be charged with a debt of an estate of which he is the execu

Errors and Appeals-Auditors' Reports-Ex-tor.
ceptions to finding of facts-Evidence should
be presented to Supreme Court-Assignees for
the benefit of creditors-Appeals by, when not

to be taken.

The Supreme Court will in no case review the finding of facts by an auditor where the evidence upon which his

conclusions were reached is not brought up in the record.
Per PAXSON, J. An assignee for the benefit of creditors
has no standing to appeal from a decree made upon his
If he is
account so as to interfere between creditors.
also a creditor and desires to appeal, it should be done in
that capacity.

Appeal from the Common Pleas No. 1, of Philadelphia County.

[AGNEW, C. J. You except to the finding of the facts by the auditor, but have not shown us the evidence on which he found them.]

There was no paper-book, and no counsel appeared for the appellee.

fact that interest was paid on the note "down to April 11, 1870; that it was kept alive by the payment of said interest; and it should be allowed."

that the auditor and the Court below erred in March 11, 1878. THE COURT. It may be allowing the claim of William Buchanan, but the case is so meagrely presented that we cannot safely say so. Buchanan claimed upon the promissory note of John Bailey and Elizabeth Robinson, dated August 26, 1863, for $300 to the order of the said William Buchanan, and by him indorsed. It appears that the note was objected In January, 1873, H. W. Black made an assign-to, on the ground that it was barred by the statute ment for the benefit of creditors to P. M. Sing- of limitations. The auditor, however, finds the master, whose account filed in June, 1874, was referred to an auditor, who reported, inter alia, as follows: "William Buchanan claimed upon the promissory note of John Bailey and Elizabeth Robinson, dated Cambridge, Me., August, 26, 1863, for $300, payable six months after date, to the order of William Buchanan, and indorsed by him. Objection was made to this claim, and it was argued that the statute of limitations barred it; but your auditor is of the opinion that since interest was paid on the note to April 11, 1870, it was kept alive by the payment of said interest, and it should be allowed. H. W. Black was the executor of the estate of Elizabeth Robinson, deceased, and as such he became responsible for the amount of the note to William Buchanan."

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If the auditor was correct as to the facts, his conclusion is not erroneous. We are not in a position to review his finding of the facts. No exception was filed in the Court below to such finding, and the evidence is not before us.

Another ground of objection was that the claim against H. W. Black was as executor of the estate of Elizabeth W. Robinson, deceased, one of the makers of the note. It was urged that such a claim could not be allowed out of the assigned estate of H. W. Black. Upon this point the auditor finds: "H. W. Black was the executor of the estate of Elizabeth Robinson, deceased, and as such became responsible for the note to William Buchanan."

This meagre statement is all we have upon the

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