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Ireland until 1856. Since then nothing has been heard

REVOCATION OF WILL. of him, though inquiries had been made. Wheu he left Ireland he was unmarried. In 1866 the presump

WISCONSIN SUPREME COURT, MARCH 18, 1884. tion was that W. was dead without issue.(25)

MATTER OF LADD'S WILL. 2. It is proved that D. R., with a wife and one child, left his home in 1824. He has not, iu 1854, been heard | A writing upon a sheet of paper attached to a will, or even of. The presumption is that D. R. is dead(26), but

upon the will itself, no matter how strongly the intention

to revoke be expressed thereby, will not operate as a rethere is no presumption that he has no issue liv.

vocation, unless signed, attested, and subscribed in the ing:(21)

manner provided by statute for the execution of a will; 3. A married woman went from Ireland to America nor can verbal expressions of the intention to revoke be in 1847 with her busband and seven children. She died admitted to sustain such writing. America in 1866. There is no presumption in 1876

outside page of wrapper leaf, In case 2 it was said: “As nothing had been heard testatrix, the words: “I revoke this will. Mary P. from D. R. for many years, the law would raise a pre- Ladd. October 7, 1879.” October 7, 1882, the testasumption of his death; and had he been a bachelor trix died. when last known or heard from, the presumption

The Circuit Court of Graut county, affirming the would be that he died unmarried and without issue; County Court, held, that the will was revoked by the but as he had a wife and child in full life when he left writing in pencil, and judgment was entered accordthe country, the presumption of his death would not ingly, from wbich this appeal is brought. ignore their existence."

Clark & Mills, for respondent. RULE IV. But it is to be presumed that a person proved to be dead left an heir.

Carter & Cleary and Bushnell & Watkins, for appel

lant. ILLUSTRATIONS.

CASSODAY, J. The frauds incident to allowing 1. P. mortgaged certain real estate to T., and died written wills to be set aside by parol testimony finally intestate, without disposing of the equity of redemp- culminated more than 200 years ago in the trial of the tion. T. files a bill agaiust the administrator to fore- feigned issue in Coles v. Mordaunt, where it appeared close the mortgage. The heirs of P. should have been at the bar of the King's Beuch that most of the nine added, as the presumption is that P. left beirs.(29) witnesses against the will were guilty of deliberate

Iu case 1 it was said: “It is insisted that there is perjury, and that the widow who sought to set aside nothing in this case to show that the mortgagor had the will was guilty of suboruation. Ou a petition for heirs to whom the equity of redemption descended. a review of the case, Lord Chancellor Nottingham reUnder our law the presumption clearly is that he left marked that “he hoped to see one day a law that no heirs capable of succeeding to the estate; and there is written will should ever be revoked but by writing.” nothing in the record to repel the presúmption. The See notes to Mathews v. Warner, 4 Ves. Jr. 196; Prince Constitution declares that no conviction shall work v. Hazelton, 20 Jobus. 513; S. C., 11 Am. Dec. 307. corruption of blood or forfeiture of estate. The stat- This remark aud that trial led to the enactment of the ute provides that the estate of a person dying intestate statute of 29 Chas. II, "for the prevention of frauds shall go to the next of kin, however remote in degree; and perjuries," in the following year. 3 Stat. at Large, and aliens and non-residents are as capable of taking p. 385, ch. 3. In fact the eminent father of equity the estate as citizens or residents. It is difficult there- himself introduced the bill, as he afterward stated, in fore to imagine a case, unless it be that of a bastard, Ash v. Abody, 3 Swanst. 664; 4 Lives Ld. Ch. 271. Secdying in testate and without issue, where an intestate tion 6 of that chapter prescribed the manner in which does not leave kindred on whom the law casts bis

a "devise in writing of lands, tenements, or hereditaestate. It sometimes happens that the State acquires an ments,” or “any clause thereof,” might be revoked, estate under the operation of the law of escheat, but that and prohibited revocation in any other manner. Our

statute relates to personal property as well as real esmay be not because there are no persons in esse to take tate, and has some words transposed, and is slightly the estate, but because they do not appear to claim it. different in some other respects; but otherwise section The presumption is so violent that the estate of an in- 2290, Rev. Stat., is substantially the same as that section testate is transmitted to others by descent, that it can

6. The statute is imperative upon the court, and is to only be repelled by proof that the fact is otherwise.

the effect that “no will, nor any part thereof, shall be It may perhaps be, if the bill had contained an allega-ling, or (4) obliterating the same, with the intention

revoked unless by (1) burning, (2) tearing, (3) canceltion that the mortgagor died without heirs, that the of revoking it, by the testator; * * * or by some decree might be sustained. But in the absence of such other (5) will or (6) codicil in writing, executed as prean averment, it is clearly the duty of the court to in. scribed in this chapter, or (7) by some other writing, tend that there are persons in existence who inherited sigued, attested, and subscribed in the manner prothe equity of redemption; and they must be brought vided in this chapter for the execution of a will." into the case before a decree of foreclosure can prop

Section 2290, Rev. Stat.

Here are seven ways prescribed for revoking a will, erly be entered. If the heirs are not known they cau,

and all other ways, except such as are implied by law, under the statute, be proceeded against as uuknown

are expressly prohibited. Each of the first four is by persons."

doing a specified act to the will itself, with the inten

JOHN D. LAWSON. tiou of revoking it. Each of the last three must not St. Louis, Mo.

only be in writing and sigued, but also attested and

subscribed in the presence of the testator by two or (25) Re Webb, Irish Rep., 5 Eq. 235 (1870).

more competent witnesses. Section 2282, Rev. Stat. It (26) See first rule.

stands confessed that the writing in pencil was never 27) Campbell v. Reed, 24 Penn. St. 498 (1855).

attested or subscribed by any witness, much less by

two witnesses, in the presence of the testatrix. This (28) Mullaly v. Walsh, Irish Rep., 6 C. L. 315 (1872).

failure to execute in the manner prescribed by the (29) Harvey v. Thornton, 14 III. 217 (1852).

statute manifestly prevented the words written in pencil from going into effect as a written revocation. the will itself, is not enough. Doe v. Harris, 6 Adol. It should be observed that the written and printed & E. 209; Hise v. Fincher, 10 Ired. Law, 139: Mundy F. matter constituting the will was wholly on the first Mundy, 15 N. J. Eq. 290); Gains v. Gains, 2 A. K. page of the double sheet. The second and third pages Marsb. 190; Runkle v. Gates, 11 Ind. 95; Perjue v. Per. were entirely blauk. The pencil writing was upon the jue, 4 Iowa, 520; Heirs of Blanchard v. Heirs of Blanfourth page, the outside of the wrapper leaf. Never- chard, 32 Vt. 62; Clingan v. Mitcheltree, 31 Penn. St. theless it is urged, in effect, that it was upon the same 25. sheet of paper upon which the will was written, though Some courts have held that where the testator is deremote from the writing, and hence that it should be ceived into the belief that he had done an act sufficient held to bave been done to the will itself; and that to revoke the will, it shall have tbat effect. Pryor v. since the act so done consisted in writing words dis-Coggin, 17 Ga. 444; Smiley v. Gambill, 2 Head, 164. closing an intent to revoke, it must be held to be a The case in Head was put on the ground that there “cancellatiou " of the will, “ with the intention of re- was no such statute in Tenuessee, and the case in voking it," within the meaning of those words as used Georgia fails to refer to any statute or decision. On in the statute. This however assumes that the second tbe other band, several of the above cases hold that half-sheet of the paper, upon which no part of the will where the legatee has falsely deceived the testator appears, constitutes a part of the will. If this is so, into the belief that he has in fact revoked his will, he then a sheet of paper may be never so large, and yet if shall be held in equity to hold the property as trustee a will be written upon one corner, and words iudicat- for the heir; but that there cau be no revocation exing an intention to revoke be written upon another cept in one of the modes prescribed by statute. But corner, however distant from every part of the first see In re Wilson's Will, 8 Wis. 171; Allen v. McPher. writing, it would have the effect to cancel the will. 80n, 5 Beav. 469; S. C., 1 Phil. Ch. 133; 8. C., 1 H.. Would this be a fair construction of the statute ? L. Cas. 191; Gaines v. Chew, 2 How. 619, 645; Would such a construction prevent “ frauds and per- Malin v. Malinı, 1 Wend. 625. The question however juries,” according to the origiual intention of those is not here involved, and is referred to merely because who enacted the statute? Or would it be more in counsel seeny to rely in part upon the Tennessee and harmony with that intention to hold that the written Georgia cases. Even if such intention to revoke be and printed matter together, found on the first page of expressed in writing never so strongly, and signed the double sheet of paper in question, constitutes the by the testator, yet if the writing was nerer in fact atwill of Mrs. Ladd? Of course there could be no writ- tested and subscribed by the requisite number of witten or printed matter except upon some substance, nesses, in the presence of the testator, so as to become and hence so much of the first half-sheet of paper as effectual as a revocation under the statute, it cannot was essential to the existence and preservation of such operate as a revocation, when unaccompanied by any written and printed matter may in a sense be re- of the four acts, done to the will itself, specified in the garded as a part of the will. But no part of the double statute. Kirke v. Kirke, 4 Russ. Ch. 441, 451; Locke v. sheet of paper, much less any portion of the first half- James, 13 Law J. Ex. 186; S. C., 11 Mees. & W. 90i; sheet upon which the will was written and printed, Jackson v. Halloway, 7 Jobus. 394; Hairston v. Hair. was in the least burned or torn. Nothing was done to ston, 30 Miss. 303; Lewis v. Lewis, 2 Watts & S. 455; In any portiou of the written or printed matter consti- re Penniman's Will, 20 Mim. 245 (Gil. 220); Laughton tutiug the will. No part of it was obliterated. No v. Alkins, 1 Pick. 535; Cheese v. Lovejoy, L. R., 2 Prob. part of it was erased or cancelled. No interlineation Div. 251; S. C., 21 Moak, Eug. 633. was made. All that constituted the will remained In Kirke v. Kirke, supra, the codicil was signed by intact. Every part of it remained as perfect as when the testator, who among other things, in effect therein it was first written. The same would have been true declared: “I do hereby revoke that part of my said if the second half-sheet had been entirely severed from will ” which has been erased, and in lieu thereof subthe first. The only question is, whether it was can- stitute what has been interlined; but it was held, by celled, within the intent of the statute, by the mere an eminent judge in such matters, that although there force of the meaning of the word “revoke" contained was a clear intent to alter the will as indicated, yet in the pencil writing. As observed, the statute re- that as the codicil had not been duly executed and quires, not only the act of cancelling the will itself, attested so as to pass real estate, such intention was but that it must be done with the intention of revok. ineffectual, and the original will was held to be in force ing it. Burtenshaw v. Gilbert, 1 Cowp. 49; Doe v. Har- the same as though there had never been any alteraris, 6 Adol. & E. 209; Francis v. Grover, 5 Hare, 39; tion. Price v. Powell, 3 Hurl. & N. 341; Giles v. Warren, 3 In Locke v. James, supra, the testator erased the Moak, Eug. 478; White v. Casten, 1 Jones, Law, 197; word “six" wherever it occurred in his will, but learMeans v. Moore, 9 Harp. (S. C.) 314; Cheese v. Lovejoy, ing it still legible, and inserted over it the word L. R., 2 Prob. Div. 251; 8. C., 21 Moak Eng. 633; Swin-"two," and thereupon added, presumably upon the ton v. Bailey, 4 App Cas. 70; S. C., 33 Moak Eug. 48; same paper, the following memorandum or codicil to Evans' Appeal, 58 Penn. St. 238.

his will, signed by bim in the presence of one witness Iu White v. Casten, supra, the paper upon which only: “The alterations in the first and second sheet, the will

written was burned through in all relating to the said annuities left to my daughter three places, one of thein being in the midst E. J. and her children, were made by me, the 15th of of the writing, and a large part was scorched, August, 1830. Witness my hand. R. N.;" and but the writing was not interfered with, when Parke, B., speaking for the court, said that the "rentit was rescued against the testator's wish, and charge of £600 per annum, created by the will, duly preserved against his knowledge, and it was held to be executed and attested, * * * has not been cana revocation. The mere act of buruing, tearing, can- celled, for the erasure was made sine animo cancelcelling, or obliterating the will itself, without the in- landi," and that it “has not been affected by the coditent, is not enough. Burtenshaw v. Gilbert, 1 Cowp. cil, for the codicil is not duly attested, and therefore 52; Francis v. Grover, 5 Hare, 39; Locke v. James, 13 cannot even be looked at, so far as the real estate is Law J. Exch. 186; Elms v. Elms, 4 Jur. (N. S.) 765; concerned.” Bigge v. Bigge, 9 Jur. 192; Clarke v. Scripps, 16 id. 783; In Jackson v. Halloway, supra, the testator, after Giles v. Warren, 3 Moak Eng. 478. So the mere in having erased certain words and interlined others in tention to revoke the will, unaccompanied by any act place of them, and “at the same time indorsed on the of burning, tearing, cancelling,or obliterating, done to will an instrument" to the effect that he had made

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the alterations named, and thereby renewed the will, peal, was clearly right in saying: “But to enable the which iustrument was duly signed, sealed, and pub- will, oudicil, or other writing to have such an effect lished by the testator in the presence of two persons, (revocation), it must itself be complete, executed, and who also signed the same as witnesses in his presence. proved in the prescribed manner, namely, as a will. But because there were uot three instead of two wit- The other mode of repeal is something done to the nesses, as required by the statute of New York, it was will itself, something more than mere intention exheld that the erasures, interlineations, and the writ-pressed. It must be intention to annul carried into ten indorsement so executed and witnessed had no execution by acts done to the paper.

* Were effect whatever upon the original will.

there nothing more than the erasure of the last signaIu Lewis v. Lewis, supra, the word “obsolete” was ture to the writing dated May 24, 1856, it would be written by the testator upon the margin of bis will, difficult to escape from the conviction that it was an but it was held to be of no siguificance.

act of repeal annulling all that preceded that signaIn Laughton v. Atkins, supra, it was strongly inti- ture." In view of the additional facts which apmated, if not held, that the written instrument con- peared, that the testator also tore the first codicil in taining words of revocation must itself be admitted to two places, and erased his signature from the second probate to have that effect.

codicil, it would be impossible to come to any other In Cheese v. Lovejoy, supra, the testator had drawn conclusions than that he intended, by the acts named, his pen through the lines of various parts of his will, to revoke both of the codicils and the whole will. and then wrote on the back of it, "All these are re- These several acts being made with the intent to revoked," and threw it amoug waste papers; but it was voke, as there found, clearly amounted to a cancellapreserved, and it was held that there was no revoca- tion of the will; but when the learned judge went tion, because the words “or otherwise destroying,” in further, and coustrued the word "cancelled," written the present English statute, were not satisfied. But thereon, and said, “I think a repeal (a revocation of that statute does not contain the words “cancelling or the will) is affected by the act of writing upon the will obliterating," like ours, and ours does not contain the itself a word that manifests an intention to annul it," “destroying,"like theirs; and hence the case is distin- he was evidently speaking for himself, and not for the guishable. But in the more recent case of Swinton v. court, and as it would seem in direct violation of the Bailey, supra, the will was made prior to the statute rule he had just expressed himself, to the effect that of Victoria, and the case was decided under the old there could be no revocation by mere “writing," unstatute like ours, and it was held by the House of less it " be complete, executed, and proved in the preLords that the words "her heirs and assigns, forever," scribed manner, namely, as a will." Besides such a througb which the testator had drawn his pen, bad rule would be in conflict with a previous decision in been obliterated, within the meaning of that word as the same court. Lewis v. Lewis, supra. True the used in the statute of frauds.

learned judge attempts to distinguish that case by obCounsel for the respondent insists that the revoca- serving" that though the word was written upon the tion here was complete within the rule followed in paper on which the will was written, it was placed Erans' Appeal, supra. Iu that case the will was exe- where it could have been detached without defacing cuted May 24, 1856, and the last clause of it spoke of the instrument. It might have been separated and two erasures and interlineations in their places. At the will itself remained intact. In this respect it difthe same time, and immediately beneath the signa- fered from the case now before us." That distinture of the testator, was a codicil, also signed by the guishing element, even if it were sound, would distintestator, making two changes in the will. Then fol- guish Evans' Appeal from the case before us, and lowed the attesting clause and the sigpature of the make Lewis v. Lewis applicable The learned judge witnesses. On or about July 21, 1858, the testator tore who wrote that opinion was evidently led to say what through three different clauses of the will, and made he did by what was said by the judge writing the three erasures, one of which was so obliterated as to opinion iu Warner v. Warner's Estate, 37 Vt. 356, be illegible; and then made a second codicil, explain- where the testator wrote on the back of the very paper ing such alterations and revocations. This second on which a part of the will was written, and on the codicil was duly signed and published by the testator, second page, and just below some of the writing, so in the presence of the requisite witnesses, who sub- that it could not be separated from it, the words, scribed the same. Subsequently the testator tore the “ This will is hereby cancelled and annulled in full first codicil in two places, erased his signature thereto, this 15th day of March, in the year 1859." Other words and also erased his signature to the second codicil, and were written on the fourth page, and some erased, but wrote beneath it the word "cancelled." The will and the court held, in effect, that the will was cancelled by codicils were all upon the same sheet of paper. This force of the above words. If that ruling were sound, paper was indorsed "Will," which was erased, and the the facts would distinguish the case from this; but by word “cancelled" written beneath it. Independent giving the force of revocation to the words themselves, of the writing of the word "cancelled" there can be no without being executed, attested, and subscribed as doubt that the tearing of the first codicil, which required by the statute, and without any tearing or was executed at the same time, and was in fact a part burning of the paper upon which any part of the will of the original will, and the erasure by the testator of was written, and without erasing, defacing, or obliterbis signature thereto, and also the erasure by him of ating any of the words of the will,or the signature of the his signature to the second codicil, was a complete re- testator or the siguature of the witnesses, would seem to vocation of the will. In re Cooke, 5 Notes Cas. 390; leave the case standing alone, with nothing to support it, Price v. Powell, 3 Hurl. & N. 341; In re Simpson, 5 Jur. and in opposition to the principles maintained in some (N. S.) 1366; In re James, 7 id. 52; In re Gullon, 4 id. of the best adjudicated cases. Besides the case is con196; Avery v. Pixley, 4 Mass. 460; Mence v. Mence, 18 demned by one of our ablest text writers on the subVes. Jr. 348.

ject. 1 Redf. Wills (4th ed.), 318. The difficulty with The case of Woodfill v. Patton, 76 Ind. 575, cited by the rule contended for is that it gives to the words counsel, was under a different statute, and hence is written in pencil, although not attested, witnessed, pot applicable. The same is true of the recent case of nor executed in the manner prescribed by the statute, Lovel v. Quitman, 88 N. Y. 377; 42 Am. Rep. 254. See the same force as though they had been so attested, Gay v. Gay (Iowa), 14 N. W. Rep. 238, to appear in 46 witnessed, and executed, for the purpose of proving Am. Rep., which was also under a different statute. that the act of putting the words there was with the The learned judge writing the opiniou in Evans' Ap

“intention" of revoking the will. It is the language

ment.

-the expression by written words alone-which is re Penniman's Will, supra; Quinn v. Quinn, 1 Thomp. thus sought to be made effectual; whereas the statute, & C. 437; Wheeler v. Bent, 7 Pick. 61. in effect, declares that such written words shall have But without further discussion, which is already too no force or effect as such unless executed, attested, and extended, the judgment of the Circuit Court is reversed subscribed as required.

and the cause is remanded, with direction to reverse The argument used by the writer of the opinion in the judgment of the County Court, and direct judge Evans' Appeal, supra, and here repeated, to the effect ment admitting the will to probate. that the word "cancelling" in the statute is used in

Judgment reversed. the same sense as cancelling notes, bonds, or other [See 45 Am. Rep. 338, uote.) written instruments, is plausible, but fallacious. It is the payment, adjustment, settlement, or decree of the court which precedes the writing of the word “can- EQUITABLE ASSIGNMENT UNACCEPTED, cel" upon the ivstrument that affects the cancella

SUPERSEDED BY GENERAL ASSIGNtion. The word is written in such case merely as a

MENT. memorandum or evidence of the previous facts which operate as a nullification. Besides such writing is generally upon the face of the instrument itself, and PENNSYLVANIA SUPREME COURT, JANUARY 7, 1884. not upon some remote corner of the same sheet. A will, unlike other written instruments, does not go

GEIST'S APPEAL. into effect until the testator's death. The mode of Upon the distribution of an assigned estate a claimant upon making a will is definitely prescribed by statute, and the fund can only claim by and through the assignthe mode of revoking wills is also definitely prescribed; and no essential part of the latter can be dis- A. made a general assignment for the benefit of creditors, but pensed with any more than the former. So a specific

had previously assigned to part of his creditors “as colmode of cancellation of tax certificates, etc., fixed by

lateral security" a claim against the city of Pittsburgh. statute, furuishes no ground for holding that a will,

The city never accepted or recognized the assignment,

and paid the money due A. to his assignee, who distributhough not included in such statutes, may also be can

ted it generally amongst the creditors. Held on appeal, celled in the same way. Our statute as to the mode of

that the holders of the assigned claim had no claim on revoking wills came to us with its history, and the con- the fund that could be enforced as against the general structions which had been put upon it by the courts. creditors, In so taking it, the people of the State knew wbat they To make an assignment valid, the assignor must not retain had obtained. To change that construction by some any control of the fund, any authority to collect it, or any artificial mode of reasoning is to open the door to

power of revocation. The transfer must be of such a

character that the fundholder can safely pay, and is vagueness and uncertainty, the disastrous effects of

compelled to do so, though forbidden by the assignor. which no one can in advance determine.

But it is claimed that such intention to revoke is Christmas v. Russell, 14 Wall. 70, approved and followed. sufficiently proved, without resorting to the words in APPEAL from the Court of Common Pleas No. 1, of claimed, and there is no evidence tending to show, Paxsox, J. This was an appeal from the decree of that any of such declarations were made at the time the court below distributing the assigned estate of the words in pencil were written, but on other and Adolph Oberhelmau, Among the assets of said estate different occasions. Such declarations are clearly in- was a claim against the city of Pittsburgh for $5,344.admissible, because they do not constitute a part of 40. It was inventoried as “a claim agaiust the city of the res gestce ; besides to allow them to have the force Pittsburgh on account of contract building bridge, of evidence would be admitting testimony of one un assigned to differeut parties as collateral security.” sworn, and without the privilege of cross-examination. Prior to his assigument to Geist for the benefit of Jackson v. Kniffent, 2 Johns. 31; Waterman v. Whit- his creditors Oberhelman had made partial assignney, 11 N. Y. 157; Staines v. Stewart, 8 Jur. (N. S.)ments of this claim to various parties as collateral se 440, Boylon v. Meeker, 28 N. J. Law, 274; Hargroves curity. These partial assignments were never acv. Redd, 43 Ga. 142; Runkle v. Gates, 11 Ind. 95. The cepted or recognized by the city of Pittsburgh, the admission of such declarations to rebut the inference debtor. The assignee for creditors disregarded them, of fact arising from the absence or loss of a will is collected the claim from the city, and used the proupon a different theory, as will appear from the well-ceeds for the general purposes of the estate. The audi. written and able opinion of Judge Dyer in Southworth tor held that the partial assignments did not bind the v. Adams, 11 Biss. 256. It has been held that where fund; that the respective assignees had no lien thereon the intention to revoke bad existed and been partly and gave the proceeds to the general creditors. Upon carried into execution, and the testator changed his exceptious filed the court below reversed the auditor, mind and arrested the act of burning, tearing, cancel and held that the holders of the partial assignments ling, or obliterating the will before its completion, were entitled to payment out of the fund, and leaving the will so that its contents could still be read, surcharged the general assignee with the amounts due it might nevertheless be admitted to probate.them respectively. From this decree the said assignee Doe v. Perkes, 3 Barn. & Ald. 489; Doe v. Harris, 6 and his surety have appealed. Adol. & E. 209; Giles v. Warren, 3 Moak, Eng. 478. So It was decided in the City of Philadelphia's Appeal, where there has been an attempt to alter certain por- 86 Penn. St. 179, that a municipal corporation is tions of the will by erasure, without obliteration, and not bound to recognize a partial assignment of a claim by substituting new words in their place by way of in- against it. Applying that priuciple to this case, it folterlineation, and the writing thus altered failed to go lows logically that the respective assignees of portions into effect for want of reattestation, courts have held of the claim could not have recovered against the city that there was no intent to revoke, except by way of of Pittsburgh. It is equally clear that appellant, as alteration, which having failed, the will remained in- general assignee for creditors of Oberbelmau, had the tact as before. Short v. Smith, 4 East, 418; Kirke v. right to recover it, and in point of fact he did proceed Kirke, 4 Russ. Ch. 435; Martins v. Gardiner, 8 Sim. 73; to collect it. Have the appellees, who are the holders Locke v. James, supra; Jackson v. Holloway 7 Johns. of the partial assignments, a claim upon the fund 394 ; McPherson v. Clark, 3 Bradt. Surr. 92; Wolf y. which they can enforce as against the general creditors Ballinger, 62 Ill. 368; Wright v. Wright, 5 Ind. 389; In of Oberhelman? We think not. They have no lien.

*

*

Oberhelman, prior to the assignments to appellees, The ground upon which the doctrine rests is that the could have collected the money from the city and paid parties have selected another tribunal-one of their his general creditors, or any creditor, with it. The own creation-to settle the controversy, and they appellant, as his general assignee, has the same power. thereby agree to and do withdraw the cause from the The partial assignments to the appellees were at most court. McNulty v. Solly. Opinion by Danforth, J. an agreement to pay them out of the fund. It was (See 75 Penn. St. 79.) said by Mr. Justice Swayne in Christmas v. Russell, 14 [Decided March 4, 1884.] Wall. 70: “An agreement to pay out of a particular fund, however clear in its terms, is not an equitable

COVENANT-WHEN NOT IMPLIED FORECLOSURE assignment. * * The assignor must not retain

DEFICIENCY.-The statute (1 R. S. 738; 1 Edm. St. 689) any control over the fund; any authority to collect it,

provides that “No mortgage shall be construed as imor any power of revocation ; if he does it is fatal to the plying a covenant for the payment of the sum intended claim of the assignee. The transfer must be of such a

to be secured; and when there shall be no express covcharacter that the fundholder can safely pay, and is

enant for such payment contained in the mortgage, compelled to do so though forbidden by the assignor.”

and no bond or other separate instrument to secure The same doctrine is asserted in Gibson v. Stone, 43

such payment shall have been given, the remedies of Barb. 285; Rogers v. Hosack, 18 Wend. 319; Trist v.

the mortgagee shall be confined to the lands mentioned Child, 21 Wall. 447; Jermyn v. Moffit, 75 Penn. St. 399.

in the mortgage." Accordingly held, that in an aoIn Mandeville y. Welch, 5.Wheat. 277, the rule is thus

tion to recover a deficiency arising upon a mortgage clearly stated by Mr. Justice Story: “Where the

foreclosure, no bond being given, and there being no order is drawn on a general or a particular fund for a

express covenant in the mortgage to pay any defipart only, it does not amount to an assignment of that

ciency, the plaintiff was not entitled to recover. part, or give a lien as against the drawee, unless the

After the grant the mortgagee declares that it is inconsent to the appropriation by an acceptance of the

tended as a security

for money loaved on draft.” It is useless to multiply authorities.

the credit of her separate estate. Even then the covAside from this it has been repeatedly held that upon

enant to pay would only be presented by implication, the distribution of an assigued estate, a claimant upon

and no express covenant would arise. Doubtless if the fund must claim by and through the assignment.

the plaintiff was suing upon an original loan and using He cannot claim adversely to it. O'Kie's Appeal, 9

the admission as evidence it might serve to raise an W. & S. 156; Jeffrie's Appeal, 33 Penn. St. 39; Bush's implied promise to pay. But this action based upon Appeal, 65 id. 366; Wylie's Appeal, 92 id. 196; Strick

the mortgage can only be sustained by the presence in ler's Appeal, 10 W. N. C. 535; Williams Bros.' Appeal,

its terms of an express covenant. Suffield v. Baskerod, 13 id. 217. In the last case it was said in the opinion 2 Mod. R. 36. Her separate estate was chargeable with of the court: “An auditor appointed to adjust and

no personal liability beyond what was covered by the settle the accounts of a voluntary assignee for creditors mortgage. Howe v. Fisher, 2 Barb. Ch. 559; Gaylord is confined to the accounts between the assignee and

v. Knapp, 15 Hun, 87. Mack v. Austin. Opinion by the cestui que trust. Third persons claiming adversely

Finch, J. cannot interfere in the settlement, but must resort to

[Decided April 15, 1884.] adversary proceedings."

EXECUTORS-APPOINTMENT OF, DOES NOT DISCHARGE The appellees are not claiming under the general as

DEBTS DUE ESTATES FROM THEM.-It was the rule of signment but against it. The fund consists of the pro

the common law that if a creditor appointed his debtor ceeds of the assigned estate of Adolph Oberhelman;

his executor, the appointment operated as a release or the appellees are attempting to show that a portion of

extinguishment of the debt, and the law was the same the fund does not belong to the assigned estate. This

where the creditor appointed one of several joint, or cannet be done. If the partial assignments to the ap

even of joint and several debtors, his executors. In that pellees bind the fund, then to the extent of those as

case it operated as an extinguishment of the debt as to siguments the fund does not belong to the assigned es

all, and released all. The reason upon which the rule was tate at all, and should not have been included in the

founded seems to be that a debt is merely the right to reaccount.

cover the amount by way of action, and as an execuDecree reversed, and distribution to be made in ac

tor could not maintain an action against himself or cordance with the principles indicated in this opinion.

against a firm of which he was a member, his appoint

ment by his creditor to that office suspended the debt, NEW YORK COURT OF APPEALS ABSTRACT.

and thus practically discharged it. Williams on Ex. 1180; Baucus 1. Stover, 89 N. Y. 1; Soverhill v. Suy

dam, 59 id. 140. This rule of the common law was ARBITRATION-DISCONTINUES ACTION--ASSENT OF AR- abolished by the Revised Statutes (2 R. S. 84, § 13). As BITRATORS--RELIEF BY MOTION.- After issue,and wbile

a member of his firm the executor owed this debt, and an action was pevding, the parties submitted their differ

the whole of it, to the testatrix. As executor, he ences in writing to arbitrators, whose decision was to

could not sue his firm. There was no way therefore be final. Defendant obtained an order to show cause

by wbich he could enforce payment from the firm unwhy the action should not be discontinued. On the

willing to pay within the meaning of that section. This return plaintiff showed by affidavit that since making was therefore a just claim against him, which he ought the agreement no action had been taken by the arbi

to pay, and which should be regarded as so much trators, one refusing to act. Held, that the relief sought money in his hands. In the Matter of Consalus, Eær. by the motion was properly granted. Mills v. Lain, 15

Opinion by Earl, J. Wend. 99; Coleman y. Wade, 6 N. Y. 44. The rule is

[Decided March 21, 1884.] well settled that mere submission to arbitration is a discontinuance. Camp v. Root, 18 Johus. 22; 6 Cow. AGENCY WHEN DEATH OF PRINCIPAL DOES NOT 399; Smith v. Barse, 2 Hill, 387; Bauk v. Widner, 11 REVOKE.—The plaintiffs in 1880, prior to the death of Paige, 529, 533; Ressequi v. Brownson, 4 Barb. 541; Rau, defendant's testator, by his orders and upon his Wilson v. William, 66 id. 209; People v. Onondaga, account, purchased certain shares of stock “short," 1 Wend. 314. In Larkins v. Robbins, 2 id. 505, it after his death, in a transaction which had not been was held that this was so, although the arbitrators had closed. They borrowed more for delivery, according not taken or consented to take upon themselves the to the usual custom, and had become obligated to reburden of the submission or done any act under it. turn them to the persons from whom they had been bor

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