1809. GRASSER v. amounted to a gift of the personal estate as it does in England. We shall give no opinion on this question, as our opinion will be founded on the will. But I think it proper to mention, that ECKART. we do not consider the point as ever having been judicially decided, although certainly the opinion thrown out by C. J. M'Kean, in 2 Dall. 268, is entitled to great consideration. That opinion was not delivered by the court, but by the chief justice; nor was there any argument upon it. It was not before the court for decision; and my brother Smith, who has a very full note of that case, has examined it, and finds no mention of any such decision. Our legislature have lately, in my opinion very wisely, established the law, different from that which prevails in England; for I am satisfied, that not one man in ten supposed, when he appointed an executor, that he thereby impliedly made him a gift of all his personal estate not particularly disposed of. Taking for granted then at present, that our law was the same as the English when this will was made, let us see what is to be found in the will. The testator was possessed of a considerable real estate, and a personal estate amounting to upwards of 1800/. clear of debt. He had a wife, and but one child, a son of about five or six years of age. To his wife, who was one of his executors, he gave a legacy of 700., and his whole real estate until his son attained the age of fifteen; he gave her besides, some specific legacies. To his son he gave some trifling legacies in the nature of tokens of remembrance, his books, his shoe and knee buckles, some pewter plates, a round topped chest, and 15. in cash, all to be locked up in the chest till his son was of a sufficient age to use them; he also gave him a horse and a still. To one Frederick Hoofman he gave 20%; and he then directs, "that all the residue or remainder of his per"sonal estate (except his dining table and two stoves) should "be sold by public sale, by his executors or the survivors of "them, as soon as might be after his decease, to the best ad"vantage." Although by the law of England the executor takes the undisposed surplus for his own benefit, yet the courts have certainly availed themselves of all reasonable opportunities of getting over this rule, which was established at a time when personal estates were generally not of much value. They have adopted this principle, that where there are dispositions in the will which appear inconsistent with an intent that the execu 1809. GRASSER υ. tor should take the surplus for his own benefit, he shall take as a trustee for the next of kin. For instance, where a legacy is given to the executor; for why should he have a legacy, if it was meant that he should have the whole? Cases have been ECKART. cited to shew the opinions of different judges as to the principle on which wills should be construed. In Bowker & al. v. Hunter & al. 1 Bro. Cas. in Ch. 330. lord Thurlow lays down the rule, that the executor shall take the residue unless there is an irresistible inference to the contrary. In Dicks v. Lambert, 4 Ves. jr. 729, the expressions of the master of the rolls are, unless "a reasonable ground" appears upon the will. "A strong "and violent presumption” are the words used by the master of the rolls in Clennell v. Lewthwaite, 2 Ves. jr. 471. These are strong expressions, but after all, we are not to be governed by words more or less strong, which different judges, or even the same judge at different times, will use upon the same subject; but upon the reason and principle on which their opinions are founded. Indeed we do not receive cases adjudged in England since our revolution, as any authority; we only regard them so far as they appear reasonable. I agree with the master of the rolls, who declared in Urquhart v. King, 7 Ves. jr. 228, that in equity "it is always a question of intention, whether "the executor is entitled beneficially or as a trustee; and this "question depends upon the sufficiency of the evidence by "which the intention is made out." Here is a principle by which we may conduct ourselves. Now, so far as evidence is derived from the will itself, the only rational way of coming at the truth is to give a fair and candid construction to the whole will, and determine whether there is ground sufficient to satisfy an impartial mind, that the testator did not intend the executor to take for his own benefit; for it must not be forgotten that the bare appointment of an executor is prima facie evidence that the personal estate is given to him beneficially. In the will now under consideration, the testator provided amply for his widow; and amply for his child after he attained the age of fifteen. But if the executors take the residue for their own use, the child is totally unprovided for till the age of fifteen. This is an intention not very probable in the case of an infant child. But if the matter rested here, I should not think the evidence sufficiently strong to convert the executors into trustees. I rely on the direction given to the executors to sell. * 1809. GRASSER V. For what purpose were they directed to sell, if the property was to be their own? And not only to sell, but at public sale, and to the best advantage? I can see very good reasons for ECKART. this precaution, in the mind of a parent anxious to secure the estate of a helpless child; but no reason at all, if the intent was to give it to the executors. It would not only be useless, but troublesome and expensive, to the persons who were the objects of his bounty, and very probably contrary to their wishes. The answer given by the defendant's counsel, that it was proper to create a fund for the payment of debts, is not satisfactory; for it is the residue after debts paid, that he directs to be sold. Besides they would have had power to sell for payment of debts without any direction, if such sale was necessary, which does not appear. Why were the dining table and two stoves excepted from the sale? Was it not because the testator supposed that they would be kept in the house for his child? Yet he has not given them expressly to the child. How then was the child to have them, but under the intention of the testator that the executors should take nothing but as trustees? For if they took beneficially, they would take these articles as well as every thing else not particularly disposed of. My mind is fully satisfied from the whole of the will, that the residue of the personal estate was not intended for the benefit of the executors. Of the several reasons urged in arrest of judgment, we shall give our opinion but upon one, which we think decisive, although it was never mentioned before the judge who tried the cause in the circuit court, and of course he has given no opinion upon it. The defendants, man and wife, are jointly charged upon an assumption made by them to the plaintiffs in consideration of money had and received by them for the use of the plaintiffs. Here is an attempt to charge a married woman on a contract made by her jointly with her husband during the coverture. This is not warranted by any precedent or principle that I have heard of. A married woman can make no contract. The plaintiff's counsel have indeed candidly conceded that this count cannot be supported, unless the court should intend that the wife had separate estate, and had contracted this debt on the credit of such estate: As we have no court of chancery, they suppose that this court would be warranted in entering a judgment specially, so as to 1809. GRASSER V. effect the purpose which might be more conveniently and directly done in a court of chancery. Without inquiring whether we have such power, we are very clear that we have no ground on this record for making the required presumption. ECKART. There is nothing which indicates that the wife had any separate estate, or that she made this contract upon her private and separate account. We are therefore of opinion, that upon the face of the declaration there is no cause of action against the wife. But it is said, this defect is cured by the act "to regulate "arbitrations and proceedings in courts of justice," passed 21st of March 1806, sec. 6. 7 St. Laws 562. The great object of this law was to prevent the merits of a cause from being sacrificed to form. The court are authorized to go great lengths in amendments previous to and even during the trial. This is right; and I will add that we shall always feel disposed to go the full length of the court's lawful authority in supporting the verdicts of juries after a trial of the merits. But the defect in the present instance is matter of substance. It is a substantial injury to charge a married woman with money received by herself and her husband, in the manner set forth in this declaration. It only remains to take notice of one more point made by the plaintiff's counsel. They say the court should not attend to this error, because it was not assigned by the defendant when he entered his appeal. I think this would be exercising a strictness too severe. The court have a right, and perhaps, where injustice is like to take place, are bound in duty to see that an erroneous judgment is not entered, although it has not been assigned as an error. We know the hurry in which business is unavoidably transacted in the circuit courts. The most industrious counsel will often make omissions; and now that this court is the court of the last resort, we think they should be particularly cautious not to cut a party off from a substantial defence, although we trust they will never give encouragement to captious objections. Upon the whole of this case, our opinion is that the judgment must be arrested. YEATES J. Upon most of the points argued, this case is an appeal from my decision in the circuit court, and therefore I give no opinion here upon them. But the ground upon which 1809. GRASSER υ. ECKART. the court think the judgment should be arrested is a new one, and I need only say that I agree with them it is decisive. BRACKENRIDGE J. concurred with the Chief Justice. Judgment arrested. Saturday, Amendment of a declaration in ac GRATZ against PHILLIPS and others, Executors of SIMON. CCOUNT render against the executors of Simon, who was stated by the writ to have been the bailiff and receiver of Michael Gratz. Pleas, never bailiff or receiver, and fully count ren- ing to a count which charged the testator as bailiff and Rawle on a former day obtained a rule to shew cause why defendants' the declaration should not be amended by inserting a count in which the plaintiff was described as surviving partner, and his interest as having been held by him jointly with a certain Barnard Gratz deceased; and now in support of the rule, he cited Slipper v. Stidstone (a), Hancock v. Hayman (b), French v. Andrade (c), and Ditchburn v. Spracklin (d). receiver of the plaintiff, a count charging him as bailiff &c. of the plaintiff as surviving partner of A. although the writ corres Phillips contra, urged that the new count would be a variance from the writ, and would put the defendants to the necesponded with sity of meeting a different allegation from that which they came prepared to encounter. the first count. But the court without difficulty made the rule absolute; observing, in answer to the last suggestion of Phillips, that a continuance would be granted if the defendants were in danger of a surprise. Rule absolute.* * The reporter has been favoured by Mr. Rawle with a short note of the case of Jennings v. Cox executor of Gayworth, decided before SHIPPEN President, in 1789, in which a variance between the declaration and the writ was held by our practice to be immaterial. The defendant was summoned as the executor of Gayworth, and the declaration charged him accordingly; to which he pleaded ne unques executor. The |