tor of other real estate to his mother and other parties was admissible. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 394, 405; Dec. Dig. § 135;* Fraudulent Conveyances, Cent. Dig. 88 830-842.] 2. EVIDENCE (§ 253*)-DECLARATIONS-ADMIS SIBILITY. On the trial of an issue as to whether a deed by a grantor was executed with intent to defraud his creditors, where such grantees were the brothers of the grantor, and there was evidence that they had participated in the fraud, declarations by the grantor made after the conveyance that he still owned the property are admissible. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 1001; Dec. Dig. § 253.*] would state what, if anything, he said at that time with regard to the property on Harrison street, that is now in question in this case? Mr. Stoner: Objected to for the reasons already assigned, and because the declarations of the grantor in derogation of his own grant are inadmissible. It is res inter alios acta, and incompetent and irrelevant. (Objection overruled. To which ruling defendants' counsel excepts, and at his request exception is noted and bill sealed.) The Court: This was in May? Mr. Marshall: May, 1903. Mr. Marshall: Q. Go ahead. A. He said he still owned it, at that time. Q. Give us the whole conversation, Appeal from Court of Common Pleas, Al- if you can. A. Well, we made an arrange legheny County. Action by the Homewood People's Bank against William Marshall and Robert Harvey Marshall. Judgment for plaintiff, and defendants appeal. Affirmed. At the trial plaintiff made the following offer: ment for him to meet us at Mr. Paull's office, and we three met there and we had his statement of his financial condition, his property, etc., and we discussed that- The Court: Q. Was he there? A. Yes, sir; he was there at the time Tom Marshall, Mr. Paull, and myself. Mr. Marshall: Q. Mr. Paul was president of the bank? A. Yes, "We offer in evidence the deed from Tom sir; he was president of the bank, I was one Marshall and wife, Alice Marshall, to Mary of the directors, and Mr. Marshall was a Ann Marshall, dated May 27, 1903, recorded creditor. We discussed the situation, and on June 26, 1903, in Deed Book, vol. 1260, he did not have any money, and we wanted p. 295, of the deed books in the records of the to have him give us a second mortgage on recorder's office of Allegheny county. This this Harrison street property. (Objected to to be followed by proof that the Tom Mar- as irrelevant.) The Court: Any talk he had shall is the Tom Marshall the brother of the about this property is relevant. Mr. Mardefendants, and grantor in their alleged deed, shall: Q. Go ahead. A. He declined to do which is being disputed in this case. Mr. so without consulting his wife. He wanted Stoner: What is the purpose of the offer? to talk with his wife. Q. Is that the properMr. Marshall: We propose to follow that ty you are speaking of now in dispute in this by proof that he conveyed all of his property case? A. Yes, sir; it is called the 'Harriabout this time. Mr. Stoner: What is the son street property.' Q. Go on. A. And he purpose of the offer? Mr. Clark: The pur- was to let us know after consulting with his pose is to show that Tom Marshall was con- wife whether he would give us this mortveying away his property at that time for gage. Q. Did you have a further meeting the purpose of defrauding his creditors, to with him? A. I met him about a week or so show a fraudulent intent. The object is to afterwards on Fifth avenue, and he said show he conveyed all his property away that his wife didn't want him to give a about this time before the bank entered. mortgage. I talked to him about the debt. (Objected to, because it does not tend to I said that didn't increase his indebtedness, prove the purpose of the offer, and is other- and that he could give a mortgage without wise incompetent and irrelevant. To which having his wife's consent, if he chose to do defendant excepts, bill sealed.) Mr. Mar- so, and I advised him to do so, because I shall: We offer in evidence deed of Tom said it would give him two years' time for Marshall and wife, Alice Marshall, to Wil- the payment of this debt. That was the last liam W. Miller, of a certain alleged lot, sit- of May or about the 1st of June that I met uated in the Twentieth ward, city of Pitts- him on Fifth avenue, at which time he still burg, and dated June 15, 1903, recorded on owned the property, he said." July 28, 1903, contained in Deed Book 1282, p. 313, being deed book in the recorder's office of Allegheny county; also offer in evidence deed of Tom Marshall and Alice Marshall, his wife, dated May 20, 1903, for a certain piece of property in the Eighteenth ward of the city of Pittsburg, it being recorded June 15, 1903, contained in Deed Book, vol. 1279, p. 170, of the recorder's office of Allegheny county, to Annie Keliher." Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. George C. Bradshaw, for appellants. James M. Clark, for appellee. BROWN, J. The real estate which is the subject of this ejectment was conveyed by Tom Marshall on January 7, 1903, to the appellants, his two brothers. At that time he was heavily indebted, and this his brothers knew. His indebtedness to the Home When S. W. Vandersaal was on the stand, ne was asked this question: "Q. I wish you wood People's Bank, the appellee, amounted The three deeds were executed about the to $8,500.27. In the following May and June, time the bank was pressing Marshall for it brought two suits against him and in one payment, or shortly afterwards, and under of them recovered a judgment for $3,833.12. | Deakers v. Temple & Barker et al., 41 Pa. When these suits were brought, the appel- 234, could not have been excluded. That lants had not recorded their deed, but placed it on record before the judgment was obtained against their grantor. Believing that his conveyance to them had been made for the purpose of defrauding his creditors, the appellee issued an execution on its judgment, upon which the sheriff sold to it, as the property of Tom Marshall, the real estate in controversy. This ejectment followed, in which a jury found that the conveyance had been made in fraud of creditors, and on the appeal from the judgment on the verdict we have two assignments of error, the one complaining of the admission in evidence of three deeds from Tom Marshall to three other grantees, executed in May and June, 1903, and the other of the permission given to the appellee to show that after his conveyance to his brothers he said he still owned the property. case was an issue to determine whether Deakers was a fraudulent vendee of Martin Connolly and wife by purchase from her on August 23, 1860, and the defendants were permitted to show that between that date and September 1 following Connolly and his wife had disposed of a bond amounting to $900; that on August 21st they had conveyed a certain lot of ground to John Mellon, Esq., and on May 23, 1860, had mortgaged certain real estate in the city of Pittsburg for $3,000, which they sold on August 27th, Mrs. Connolly receiving the proceeds. This was objected to for the same reason that is urged here, and the admission of the evidence constituted the second assignment of error. In overruling it we held, through Woodward, J.: "The evidence complained of in the second error, though not directly relevant to the immediate issue, was such as is usually admitted in cases of fraud, and was very prop The first of the deeds alleged to have been improperly admitted in evidence, dated Mayer as exhibiting the conduct of Connolly and 27, 1903, and recorded June 26, 1903, was wife on the eve of bankruptcy. It is a bad to the mother of Tom Marshall; the second, sign for parties who have been convicted of a dated June 15, 1903, and recorded July 28, fraud to complain of an excess of evidence. 1903, was to William W. Miller, his partner; Their effort to draw the narrowest possible the third, dated May 20, 1903, and recorded sight upon the pending issue, and to exclude June 15, 1903, was to Annie Keliher. These everything which, according to the most rigid deeds were offered for the purpose of show-rules of evidence, is not relevant to it, indiing that Marshall was fraudulently convey- cates a consciousness that the transactions ing his property about the time the bank brought suit against him. The complaint as to their admission is that they represented transactions between other parties and Marshall with which the appellants were in no way connected, and of which they had no knowledge, and, as the only question on the trial was their good faith in taking their deed, they ought not to have been prejudiced by what their brother had done with the rest of his property, even if he had conveyed it to defraud his creditors, of which there was no proof. There are authorities in other jurisdictions sustaining this position, but under our cases the learned court below did not err in allowing the appellee to offer the three deeds. Before offering them, it had submitted evidence from which the jury could fairly have inferred that the deed to the appellants did not represent an honest transaction. This is especially true of the testimony of William Marshall, one of the appellants, called as on cross-examination, which need not be recited in detail. If he was telling the truth, he did not tell it with the frankness and candor which the jury would naturally have expected from one who was a party to an honest transaction, and, after having heard him in connection with the testimony as to the inadequacy of the consideration for the conveyance, they could well have believed that which surround the main fact will not bear investigation. But all experience proves, and rules of evidence are founded in human experience, that, if fraud is to be detected under the various cloaks it puts on, the conduct of the parties before and after the fact complained of, as well as in immediate connection with it, must be freely examined. Truth and honesty are not likely to suffer by the latitude of evidence allowed in cases of fraud; for, the more thoroughly an honest transaction is investigated, the more honest it will appear." The appellees having submitted evidence tending to show that the purpose of Tom Marshall to defraud his creditors had been participated in by the appellants, his declaration, made subsequently to the execution of his deed, that he still owned the property, was admissible under Hartman v. Diller, 62 Pa. 37, and Confer et al. v. McNeal, 74 Pa. 112. In the former case in dismissing the assignment that the court below had erred in permitting the declarations of the alleged fraudulent grantor, made after the sale to Hartman, and not in the latter's presence, Mr. Justice Sharswood said: "As a general principle it is undoubtedly well established that the declarations of a grantor made after the execution of the grant cannot be made use of for the purpose of impeaching it. But the rule has been so far modified that, when both wholesale and retail. He had been in business in the Pittsburg Market for about eight or nine years prior to that time, and had occupied the stall in controversy for about three years at the time of the making of the lease to Mrs. McTighe. creditors alleging that it was intended to hinder, delay, and defraud them, and therefore void under the statute of 13 Eliz. c. 5, and some evidence has been adduced tending to show a common purpose or design of this character by the parties, then such declarations are admissible; for, wherever evidence "(3) On May 6 or 7, 1907, the market is given tending to prove a combination or constable, duly authorized by the clerk of conspiracy to do an unlawful act, it lets in the market, who was acting under direction the declarations of all the parties against of the director of the department of public each other. In Reitenbach v. Reitenbach, 1 works, verbally notified the defendant imRawle, 362, 18 Am. Dec. 638, where the ques-mediately to give up possession of the stand, tion was as to the validity of a bond, and a and the defendant demanded a written noconversation with the obligor in the presence tice. On May 7, 1907, the plaintiff, by her of the obligee had been proved going to show attorneys, gave the defendant a written noa fraud upon creditors, other declarations tice as follows: 'You are hereby notified to subsequently made by the obligor in the ab- deliver up quiet and peaceable possession of sence of the obligee were held to have been stand 0-37 in the Diamond Market, city of improperly excluded." Pittsburg, to Mrs. J. McTighe, on or before The assignments of error are overruled, May 8, 1907. Burleigh, Gray & Challener, and the judgment is affirmed. (223 Pa. 277) McTIGHE v. SCHWARTZ. (Supreme Court of Pennsylvania. Jan. 4, 1909.) EQUITY ( 43*)—JURISDICTION-OUSTING LI CENSEE. Equity has jurisdiction of a bill to order a person in possession of a market stall under a permit from the city to give up possession, and to restrain him from remaining in possession after lease of the stall to another, where ejectment or an action for trespass will not afford an adequate remedy. Attorneys for Mrs. J. McTighe.' The defendant refused to deliver up possession and is still in occupancy of stall. "(4) On January 31, 1908, the clerk of the market collected from and the defendant paid to him the rent for one month, due under his permit, and the rent for nine months from May 1, 1907, to February 1, 1908, at the rate fixed in the lease to Mrs. McTighe. "Conclusions of Law. "(1) A court of equity has jurisdiction. "(2) The defendant was a mere licensee, and his right of occupancy was terminable [Ed. Note.-For other cases, see Equity, Cent. at any time upon reasonable notice. He was Dig. § 136; Dec. Dig. § 43.*] not a tenant, and neither ejectment nor the Appeal from Court of Common Pleas, Al- proceedings provided by the landlord and legheny County. Bill by J. McTighe against Abe Schwartz. Decree for plaintiff, and defendant appeals. Affirmed. tenant acts are remedies. "(3) Defendant is a mere trespasser, and, an action of trespass being inadequate, a decree should be made as prayed for, at the Macfarlane, J., filed the following opinion costs of defendant. in the court below: "Findings of Fact. "(1) On March 1, 1907, an ordinance of the city of Pittsburg was passed and approved, a true copy of which is attached to the plaintiff's bill. It was provided that thereafter the stalls and stands in the Diamond Market shall be leased for a term of three years from the first Monday of May, 1907, and every three years thereafter. Under the authority of this ordinance the director of the department of public works, who was the proper officer, made a lease, dated May 6, 1907, of stand No. 0-37 to the plaintiff. By its terms the city granted to her the right to occupy the stand for the purpose of selling fruits for three years from the first Monday of May, 1907, in consideration of the payment of $591.50, payable quarterly in advance. "Opinion. "The prayers of the bill are that the defendant be ordered to give up possession, that he be restrained from remaining in possession, and for damages and general relief. In short, we are asked to dispossess a trespasser. The principal question is that of jurisdiction. If this is an ejectment bill, or the action of ejectment or trespass, or proceedings under the landlord and tenant acts, afford an adequate remedy, we have no jurisdiction. "Prior to the ordinance of March 1, 1907, any lease of stalls in the market 'was a mere license, not binding upon the city as a conveyance of any sort or title or estate in the stall,' and the occupant has no right to retain possession after a reasonable notice to quit. Levenson v. Pittsburg, 54 Pittsb. Leg. J. 294 (court of common pleas No. 2). In that case Judge Shafer suggested the passage of an ordinance regulating the disposition of the stalls for reasonable terms. So far as "(2) At that time the defendant was in possession of stall 0-37 under a permit given him in 1906, and was doing a large business, we know, the rights of a lessee under this ordinance have not been before the courts except in the case of Peter Monteverde v. A. G. Logeman, at No. 522, July term, 1907, in common pleas No. 2. There the plaintiff, a huckster, had a lease under the ordinance. The rules of the market, which were a part of the lease, required hucksters to allow gardeners to occupy their stands until 9 o'clock a. m., and an injunction was granted against such a gardener, restraining him from interfering with the plaintiff in his possession of the stand after that hour; the court holding that the remedy of trespass was not adequate. "In Woelpper v. Philadelphia, 38 Pa. 203, an action to recover premiums paid at auction for a stall in a market, the market house afterwards being removed by the city, the right of the occupant was likened to that of the purchaser of a pew in a church, although the court said that the pewholder had more property in the pew than the plaintiff had in his stall. It was held that the plaintiff could not recover. That case does not rule this, but shows that the 'tenant' was but an occupant under the rules and regulations of the market. It is settled that an action of ejectment does not lie. Strickland v. Penna. R. R. Co., 154 Pa. 348, 26 Atl. 431, 21 L. R. A. 224. The defendant is not a tenant holding over under a claim of right, but is a mere trespasser, with no more rights than an intruder. Even a lessee for a definite term has no right to the ground, no estate or definite legal standing. 'He is the holder, by virtue of his lease, of a license to sell at the particular stall assigned or let to him.' Strickland v. Railroad Co., 154 Pa. 348, 26 Atl. 431, 21 L. R. A. 224. "It follows that the landlord and tenant acts do not apply. Neither do the cases cited. by counsel for the defendant bear upon the question, for this is not a bill of a lessee asking an injunction against another lessee." Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. J. M. Friedman, for appellant. Craig Smith, Clarence Burleigh, James C. Gray, William A. Challener, and L. M. Shoemaker, for appellee. PER CURIAM, The decree is affirmed, on the findings of fact and the opinion of the learned judge of the common pleas. (223 Pa. 382) In re BLACK'S ESTATE. SPECIFIC bonds were entitled to the proceeds, and a claim that the legacies were adeemed cannot be sustained. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1986-1989; Dec. Dig. § 767.*] Appeal from Orphans' Court, Allegheny County. In the matter of the estate of Alexander M. Black. From a decree dismissing exceptions to distribution, William H. Black appeals. Affirmed. From the record it appeared that testator died November 5, 1905. By his will, dated January 31, 1900, he directed his executor, the Safe Deposit & Trust Company, it having been his committee also, "to pay to David R. Kennedy one-half of the proceeds of bonds I hold in the National Life Insurance Company of Vermont; to Mrs. H. C. Lewis, residing near Parker, Spottsylvania county, Virginia, the remaining proceeds of same bonds." On July 5, 1905, some months before Black's death, there was paid to the Safe Deposit & Trust Company, his committee, $2,000, being the proceeds of these bonds or policies. A short time after its receipt, and in the lifetime of Black, the committee invested these cash proceeds in a mortgage, assigned on its books to Black's credit. It remained so invested up to and after Black's death, when the investment in the form of cash was paid to his administrator pendente lite, and afterwards as cash came back to the accountant's hands, and is part of the balance in cash for distribution. Argued before FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ. James R. Sterrett and Hugh S. Craig, for appellant. D. C. Jennings, W. K. Jennings, and George Henderson, for appellee. ELKIN, J. The testator held two bonds in the National Life Insurance Company, maturing in 20 years, which were in the nature of insurance contracts. He bequeathed onehalf of the proceeds of these bonds to David R. Kennedy and the remaining half to Mrs. H. C. Lewis. These legatees in the distribution of the estate in the court below claimed what the will in express terms gave them; that is, the proceeds of these bonds. Their right to participate in the distribution is denied by the residuary legatee on the ground that these legacies were adeemed. The solution to the controversy depends upon the facts rather than upon the law. Of course, if the testator had bequeathed a particular bond to a certain person, and in his lifetime remain his property at the time of his death, that would be an end of the legacy, because the particular thing bequeathed was not the property of the testator when the will became operative. (Supreme Court of Pennsylvania. Jan. 4, 1909.) had disposed of that bond, so that it did not CONSTRUCTIONS WILLS (767*) LEGACY-PROCEEDS OF BONDS. Testator bequeathed to certain legatees the proceeds of two bonds, which were paid off during his lifetime and the proceeds invested in a mortgage. After testator's death the mortgage was paid. Held, that the legatees of the Under such circumstances But that is there would be an ademption. not this case. The testator bequeathed, not | article of agreement. Defense was made on the bonds, but the proceeds; and the learned the ground that the title offered by defendant court below has found as a fact, upon suffi- was not marketable. From the affidavit of cient testimony, that the proceeds of these defense filed the following facts appear: bonds, identified and earmarked, are intact, ready for distribution to the parties entitled thereto. This finding of fact relieves the whole situation from difficulty. The very thing bequeathed by the testator-that is, the proceeds of two certain bonds-being in existence and belonging to him at the time of his decease, there is no rule of law which would deny the legatees the right to demand and receive what the will in terms gave them. The learned judge who delivered the opinion of the court in banc very properly and pertinently said: "Ademption of a specific legacy arises by the alienation or destruction of the object. It is now clear that the thing devised has neither been alienated or destroyed. The proceeds being traced out and identified at the time of testator's death, the legacy will take effect. Nooe v. Vannoy, 59 N. C. 185. The proceeds of these bonds, being the thing devised, were in fact kept apart from the testator's estate by the mortgage investment. Therefore the argument in favor of extinction and ademption falls. Clark v. Browne, 2 Sm. & Gif. 524." Decree affirmed, at the cost of the appellant (223 Pa. 368) MCCAFFREY v. GIBNEY. Where a guardian sells real estate of his ward at private sale under an order of court, under the mistaken belief of all the parties that he could give an absolute estate to the purchaser, the orphans' court, five years thereafter, when it is shown that there were contingent remainders and executory devises affecting the title, could direct a second sale by a trustee to the same purchaser, with directions to convey the real estate free from all other interests and hold the proceeds for the purposes stated in the will creating such interests. [Ed. Note.-For other cases, see Guardian and Ward, Dec. Dig. § 105.*] Appeal from Court of Common Pleas, Allegheny County. John J. McCaffrey died on March 23, 1900, leaving a widow and four minor children. An undivided one-eighth interest in the real estate in question was vested in him at the time of his death. By his will he gave his entire estate to his wife for life, and after her death "to those persons who may then be entitled to take the same as distributees under the intestate law, or as heirs at law under the laws of the state of Pennsylvania." M. B. Johnson was appointed guardian of the minor children of John J. McCaffrey, and on August 24, 1900, presented a petition to the orphans' court, averring that McCaffrey had devised all his estate to his wife for life, and upon her death to her children, and praying for an order to sell the real estate here in question at private sale to purchasers, and for a price named; the proceeds of such sale to be substituted for the real estate and invested for the benefit of the widow according to the provisions of the will. The court made the order prayed for, a bond was filed by the guardian. the money paid by the purchasers, and a deed executed and delivered to them by the guardian; the widow at the same time releasing her interest to the purchasers. On July 21, 1905, M. B. Johnson filed a supplemental petition in which the surviving brothers and sisters of John J. McCaffrey joined, as did his nephews and nieces in esse, by their guardian, in which it was set forth that in and by the former proceeding the guardian of the minor children of John J. McCaffrey and the widow intended to convey an absolute estate to the purchasers, but that the grantees have been advised that the will of John J. McCaffrey created contingent remainders and executory devises, which were not affected by the former decree of the orphans' court, or by the sale and conveyance made thereunder. The petitioners therefore prayed that the former order of sale be vacated, and that a decree be made nunc pro tunc as of August 4, 1900, authorizing a trustee to be named "to make sale and conveyance of the said real estate, free and divested of all contingent remainders and executory devises limited in said will," to the same purchasers and for the same price as set forth in the original petition, and that the Action by James F. McCaffrey against C. A. Gibney. From an order making absolute rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Af-proceeds be taken and held by the trustee firmed. Argued before FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ. James R. Dunn, for appellant. John E. McCalmont and Henry A. Davis, for appellee. POTTER, J. In this action the plaintiff sought to recover the balance of the purchase money for certain real estate sold under an according to the terms of the will. Upon the filing of this petition, the court appointed a trustee to represent the interests in posse, who subsequently filed a paper consenting to and joining in the prayer of the petition. On July 31, 1905, the court made the decree prayed for, appointing M. B. Johnson, who as guardian was the original petitioner, trustee to make the sale. Subsequently Johnson, on his own petition, was relieved |