If an executor has assets and suffers a just debt of the testator to remain unpaid for several years, and then after payment of interest and costs thereon claims credit for the same in his account, they will be dis allowed, and charged to him personally as a penalty: Callaghan vs. Hull, 1 Serg. & R. 240; Armstrong's Estate, 6 Watts, 236; Knecht's Appeal, 21 P. F. S. 333.

It also appeared that since the death of the widow of testator, accountants occupied the homestead as a residence with others of the family. No rent was charged or paid by any, and all enjoyed the premises in common. It was used for their common benefit, and it would not now be productive of any good result to estimate the rental value of the premises, subdivide the same among all the heirs and charge each a proper proportion for use and occupation and the cost of maintaining the joint household. These exceptions are also dismissed and the adjudication confirmed.

Francis I. Gowen, S. E. Megargee and John G. Johnson, Esqs., for exceptants.

D. R. Patterson, Esq., and Hon. Richard Vaux, for accountants.

[Leg. Int., Vol. 36, p. 175.]

Estate of NORMAN L. HART, deceased.

An agreement by a number of persons to pay certain sums for the relief of a church is not wanting in mutuality.

Separation of a wife from her husband, whether with or without cause, cannot enter into the question of his liability to account to her for moneys collected as her agent, after she had revoked his authority to act.

An executor will not be deprived of his commissions because the condition of the testator's affairs was such as to necessitate the employment of an accountant. When a widow elects to take against a will which contains a direction to sell the real estate, there is no conversion as to her.

Opinion delivered April 26, 1879, by

ASHMAN, J.-The decedent, in his lifetime, was one of the signers of a subscription paper, the material parts of which were as follows: "The undersigned, being desirous of placing the Plymouth Congregational Society of Philadelphia' on a sure and firm basis by the payment of the present indebtedness, being the sum of $6,065 (except the groundrent of $160 per annum), with the understanding that the said society is to be kept from encumbered debt, mortgage or lien, agree to pay the amount set opposite our respective names, upon the express condition that the amount of $6,065 shall be subscribed on or before January 1, 1876, and that all the money subscribed shall be used for the sole purpose of extinguishing the above-named debt, and that in case the said society shall at any time hereafter change its present faith and worship, or make any mortgage debt or lien, then the amount of these subscriptions shall revert to the American Congregational Union of New York." Subscriptions to the full amount named having been secured before the time fixed by the agreement, the testator paid $200, being a part of the first instalment. The balance of the first and the whole of the second instalment were paid after his death by his executors. Exceptions were filed to the allowance by the auditing judge of the credits asked for these payments, and to the award of $937.50, being the pro rata balance of decedent's subscription.

It was urged that in every case founded upon mutual promises, it is essential that the promises, to be binding, shall be made at one and the same time, and that, in this instance, the evidence showed that they were not so made.

It is true that in pleading upon mutual promises, it will not do to aver that one was made after the other, because such promise would be upon a consideration which had been already executed: Livingston vs. Rogers, 1 Caines' Rep. 583. Here the agreement expressly disposes of the objection by providing that no promise shall be binding until the full amount to be made up shall have been subscribed. Even without this clause the objection would have no force. In Stewart vs. Hamilton College, 2 Denio, 416, Chancellor Walworth says: "Every member of society has an interest in supporting the institutions of religion and of learning in the community where he resides. And when he consents to become a subscriber with others, to raise a fund for that purpose, the real consideration for his promise is the promise which others have already made, or which he expects them to make, to contribute to the same object. For this purpose also the subscriptions to the same paper, and for the same object, although in fact made at different times, may in legal contemplation be considered as having been made simultaneously."

The case just cited is an authority for the position that mutual promises are in themselves a sufficient consideration to uphold an agreement. The consideration for the promise of each subscriber is the corresponding promise which is made by other subscribers: 2 Kent's Com. 465. A mutual agreement to give time to a debtor is good for the same reason: Bright vs. Murray, 1 Leg. Ch. 22. There are, however, cases which hold that the party for whose benefit the promises are made, in order to recover, must show that a request moved to him from the promissors, to do or to forbear to do a certain act; and that on failure of such proof, the subscription will take the form of a mere donation, which can ope rate only at the will of each subscriber: Bridgewater Academy_vs. Gilbert, 2 Pick. 579; Limerick Academy vs. Davis, 11 Mass. 113. But where a part of the subscription has been paid, Farmington Academy vs. Allen, 14 Mass. 172, or the promisce has begun to execute the purpose contemplated by the subscription, the promise will be enforced: Amherst Academy vs. Cowls, 6 Pick. 427. In Pennsylvania, however, the courts have not hesitated to give effect to voluntary subscriptions in aid of a charity. In Caul vs. Gibson, 3 Barr, 416, the paper sued on was in all essentials identical with the present, and the court held that the moral obligation was sufficient to sustain the express promise of the defendant. In Chambers vs. Calhoun, 6 Har. 13, the joint engagement was to pay to a committee a certain sum towards the building of a church, and the promise was sustained, although when the suit was brought the building had been completed and the committee discharged. An individual

promise to contribute to a similar object was held good in Ryerss vs. Congregation of Blossburg, 9 Cas. 114. In Edinboro' Academy vs. Robinson, 1 Wr. 210, and Shober vs. Park Association, 18 P. F. Sm. 429, no doubt was entertained of the binding force of a promise like the present, and the only question was as to the proper parties to the suit.

It was alleged on the argument, although no proof of the fact seems

to have been presented at the audit, that the claimants, after the date of the agreement, had executed a mortgage upon the church property, and had thereby forfeited their right to recover under the instrument. But the condition that no new lien should be created was clearly a condition subsequent, and in no way affected the liability of the subscribers. The party to take advantage of the breach is the American Congregational Union of New York, to whom the fund in such case is made over, and as to whom the money will be held by the Plymouth Society in trust. The objection was made that the New York Society was a pure donee, upon whom no obligation was cast, and respecting whom the contributors assumed no legal liability. But the principle is too well settled to be disputed, that a party for whose benefit a promise is made may sue in assumpsit upon such promise, although the consideration therefor was a consideration between the promissor and a third person: Schermerhorn vs. Vanderheyden, 1 Johns. 139; Barker vs. Bucklin, 2 Denio, 45. The exceptions to the adjudication upon this point are dismissed.

The wife of the testator owned in her own right a property at Chestnut Hill, on which she and her husband and children at one time resided. The family afterwards moved to the city, under an agreement that the husband should collect the rents of the Chestnut Hill property, and use them towards defraying the expenses of the new home. At a later date, the wife left her husband, and notified the tenant not to pay him. The husband, however, continued to receive the rents, and paid thereout for various repairs to the premises. The auditing judge was clearly right in admitting, the claim of the wife for the rents collected after notice. Her separation from her husband, whether with or without cause, cannot enter as an element into the question of his liability to account to her for moneys collected as her agent after she had revoked his authority to act. A credit was allowed to the husband, at the rate of $100 per annum, as the value of a strip of ground, forming part of the leased premises. It appeared that he was the owner in his lifetime of this strip, and that after his death it was purchased by his wife for $250. It was shown that its use added greatly to the convenience of the tenant and to the value of the property. Objection was made that the credit allowed bore no proportion to the intrinsic value of the ground. But the proof in the case amply justified the finding of the auditing judge. exceptions to his rulings on these points, and to his refusal to allow for repairs, as to which the tenant was clearly liable, are dismissed. It may be remarked that if, under the evidence, any of these repairs could be held to be improvements, there was still no proof that they were authorized by the wife or were necessary, and that she therefore could not be charged with their cost: Kuhns and Wife vs. Turney, Leg. Int., vol. 36,

p. 37.

The

The exceptions to the rate of commissions allowed to the accountants, and to the wages paid by them to two of the employés of the decedent, are dismissed. The auditing judge has found as a fact that the services of these employés were indispensable to the proper settlement of dece dent's estate, and that the amount paid them therefor was a reasonable. compensation. The fact that the involved condition of the business of decedent at the date of his death necessitated the employment for a short

time of a clerk and workman, should not deprive the accountants of the commissions which were due to them for their own labor and responsibility.

The attention of the auditing judge was not called to the matter complained of in the exceptions filed to the widow's share in distribution. The widow elected to take against the will, which contained a direction to sell the real estate. The property was sold and the proceeds were distributed as personalty. The sale worked no conversion as against the widow, the fund as to her bearing the character of real estate. Instead of the absolute interest awarded her, she was entitled only to a life-estate in one-third of the sum. The exceptions to this point are sustained, and the adjudication will be reformed accordingly.

Samuel C. Perkins, Esq., for accountants.

Jas. Otterson, Jr., F. Carroll Brewster, Esqs., for widow and heirs. J. B. Colahan, Esq., for Plymouth Congregational Society.

[Leg. Int., Vol. 36, p. 184.]

Estate of ELIZA HARLAND, deceased.

When a legacy becomes lapsed, the proportionate part of the surplus of personal es tate to which the legatee would have been entitled, had he survived, must take the same direction, and both go to the residuary legatee. Massey's Appeal, 36 Legal Intelligencer, 165, followed.

Sur exceptions to adjudication. Opinion delivered May 3, 1879, by HANNA, P. J.-Testatrix after bequeathing certain pecuniary legacies unto individuals and charities nominatim, provided that "if there should be any surplus of my personal estate, I bequeath such surplus to and among my said friends and charities, so as ratably to increase the said legacies to them, according to their respective amounts. And I add the following legacies to my friends to be paid out of my personal estate," naming the legatees and the amount bequeathed to each. Having by a previous clause, given the executors authority to sell the real estate, testatrix bequeathed additional pecuniary legacies out of the proceeds of the sales, and in conclusion directed as follows: "Any residue of my estate I bequeath unto the American Bible Society." Seven of the legatees, who if living would be entitled to participate in the surplus of the personal estate, and the four legatees to whom legacies were bequeathed after the disposition of the surplus, died in the lifetime of testatrix. These lapsed legacies, with their proportionate share of the surplus of the personal estate, were claimed by the heirs and next of kin of testatrix, and also by the residuary legatee. And a further claim was made on behalf of the surviving legatees, who contended that while the lapsed legacies fell into the residue, yet they were not entitled to share in the surplus of the personal estate, but the whole surplus should be awarded to the legatees who survived, and were named prior to the clause providing for such surplus. Following the decision of this count in Estate of Mary P. Loxley, deceased, 35 Legal Intelligencer, page 145, based upon Yard's Appeal, Id. 164, and Yard vs. Murray, Id. 69, the auditing judge awarded the amount of the lapsed legacies, with their pro rata share of the surplus, to the heirs and next of kin. This forms the subject of the first exception. Whatever doubt may have arisen

66

from the opinion in Yard's Appeal, and Yard vs. Murray, supra, as to the disposition to be made of a lapsed legacy, there is now no longer room for controversy. The rule heretofore adopted has been again recognized and adhered to. Massey's Appeal, 36 Legal Intelligencer, 165, by which it has been definitively settled, that "in Pennsylvania, the rules of the common law regarding the devolution of property described in lapsed devises and bequests, have been accepted as in full force:" Woodward, Justice, supra. And "under these rules, real estate, the devise of which had lapsed, has been always held to descend to heirs at law, and to form no part of a residuary estate created by a testator's will, except where a special intent to the contrary has been apparent." On the other hand, personal property, where a legacy has lapsed, has with equal uniformity, been given to residuary legatees:" Idem. The first exception, therefore, is sustained, and the amount of the lapsed legacies awarded to the residuary legatee. The remaining question respects the participation of the lapsed legacies in the surplus of the personal estate. The auditing judge held, they were entitled to their proportionate part, and as before stated, awarded the same together with the legacies to the next of kin. This was prior to the announcement of Massey's Appeal, supra, and must be corrected in accordance therewith. But so far as the participation of the lapsed legacies in the surplus, we think he was correct. Each of the legatees had no greater interest in the surplus than the proportion his or her legacy bore to the surplus. And if all had survived the testatrix, it must be conceded this would be the proper mode of distribution, and that one or more pre-deceased her, does not, we think, produce any change. The legatees are bequeathed each a specific sum, and afterwards a proportionate part of the surplus after payment of the prior legacies. This is all they are respectively en titled to, and all that was intended by the testatrix. Now, if when a legatee dies, his legacy becomes lapsed, it naturally follows, that the proportionate part of the surplus, to which he would have been entitled, had he survived, must take the same direction as the legacy, and both go to the residuary legatee-not to the surviving legatees, and thus increase their proportionate shares. As was held by the auditing judge, the "surplus," so far as regards these pecuniary legacies, is a residuary balance, and the share of one or more could not pass to the survivors "for the reason, that a general residuary bequest cannot include any part of the residue itself, which fails:" Craighead vs. Given, 10 Serg. & R. 351; Neff's Appeal, 2 P. F. Smith, 326. The second exception is therefore dismissed, and the adjudication corrected in the decree filed herewith.

James Harland and Thomas A. Porter, Esqs., for next of kin.

J. Sergeant Price, Esq., for residuary legatee.

John G. Johnson, Esq., for accountants and legatees.

[Leg. Int., Vol. 36, p. 184.]

Estate of TIMOTHY CALLAHAN, deceased.

The testator devised certain real estate in trust for his wife during life or widowhood, and at her death or remarriage he directed that the same should be sold by his executor, and that "the net proceeds thereof be equally divided among my children then living, and the child or children of such as may be deceased, in such manner