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No. 3


YORK LEGAL RECORD. February 26, 1883. GORDON, J. The

appellant held the bond of Carlton J. PassTHURSDAY, MAR. 22, 1883.

more, the testator, for the sum of $5,000,

which was secured by a mortgage on cerSUPREME COURT.

| tain of the real estate of the obligor.

Some time after the death of Carlton J. Yeatman's Appeal.

Passmore, his executor and legatee, Wills

Passmore, acting under the authority of When the real estate of a solvent decedent is sold by order of Court for the payment of debts, interest on liens an order of the Orphans' Court, sold the does not stop at the date of confirmation of the sale, but

real estate for the payment of debts and when the money is paid to the debtor.

PER GORDON, J. if the estate were insolvent, the in. legtcies. terest would cease at the date of the confirmation of the

This sale was confirmed December 12, Appeal from the Orphans' Court of 1881, and on the 8th of May, 1882, the Chester county.

executor paid over to Yeatman the full

amount of the principal of his bond, but Carlton J. Passmore died testate, seized refused to pay the interest accruing beof certain real estate which was sold, on

tween those dates. Before the auditor, the application of the executor, who was

who was appointed to make distribution also a legatee, by order of the Court to

of the money raised from the sale above pay debts. The purchaser was also a

mentioned, the appellant present a claim legatee. The personal property was suffi

for this interest, $128.90, and had it allowcient to pay all the debts except a mort

ed. To this allowance an exception was gage of $5,000 which was a lien on the

taken, which was sustained in the Court real estate sold. The sale was confirmed below, on the ground that the interest on Dec. 11, 1881. On May 8, 1882, the execu

the bond ceased at the time of the contor paid the appellant the amount of his

firmation of the executor's sale. Had the mortgage with interest to the date of the

estate of Passmore been insolvent, the confirmation of the sale. A deed to the

doctrine assumed by the Court below purchaser was made about April 1, 1882, would have been unexceptionable, for, in when the purchase money was to be paid. that event it would have had the support The account of the executor showed a

of all the authorities from Ramsey's Apconsiderable balance, after payment of all

peal, 4 W.71, down to the case of the debts, which was payable to legatees un

Brownsville Bank, 15 Nor. 347. But der the following provision of the will:

Passmore's estate was entirely solvent and "I leave to William's boys all of my prop- the sale was not made on motion of the erty, to be divided between them, share

mortgagee, but upon the motion of the and share alike * * *

after all my debts are paid." The appellant presented ment of the estate.

executor end for the purpose of the settle

Under these circumthe bond accompanying this mortgage be

stances, we cannot understand why the fore the auditor on distribution (John H.

appellant was not entitled to his whole Brinton, Esq.,) and claimed interest there

claim, debt and interest.

This is a very on from Dec. 11, 1882, to the date of the good reason why a defendant, as in Strodistribution by the auditor. The auditor

hecker v. Farmers' Bank, 6 Watts 96, allowed the claim. Exceptions were taken

should not be charged with interest after to this allowance, which were sustained

the return day of an executor levied upon by the Court below (FUTHEY, P. J.) and the report recommitted to the auditor for

his property, for the creditor has thereby correction.

paid himself by a sale of his debtor's goods This appeal was taken to the final de- / or lands, and the money thus made is then cree of the Court.

in the hands of the sheriff who occupies

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the position of a trustee or baliff for the it happened that the claim remained unplaintiff. If, however, as is admitted in paid until some six months after the conthe case cited, the defendant, by his inter-firmation of the sale. On what princiference, delays the payment of the money 'ple, then, is Yeatman to be made to forto the plaintiff, he is chargeable with the feit a substantial part of his bond? Or accruing interest. So, as in Ramsey's how can his debt be said to have been Appeal, 4 W. 71, where the lands of an paid before he got the money for it?

It insolvent estate are sold for the payment is true this was an official sale, and, by it, of debts, there is also a good reason why the lien of the mortgage was extinguishthe interest upon those debts should stop ed, but what of that? It did not extinupon the confirmation of the sale, for the guish the debt secured by the mortgage, fund then belongs to the creditors, and that remained until it was paid, so that, in they are entitled to distribution as of that effect, the sale had no more signifiance time; hence, there is no fund left for the than if it had been made under a power payment of subsequently accruing inter- | in the will. It was made for the settleest. But even this rule, as we find by the ment of a solvent estate; the money went Brownsville Bank case, above cited, has its to the executor, and it was only through exception, for it was there ruled that when him that Yeatman could receive it. The the fund continues to draw interest after delay was caused by no act of the appelthe date of the confirmation of the sale, lant, nor by a judicial necessity, but by the the creditor is entitled to his proportionate executor and for the convenience of the share thereof. Nor is the case of the estate which he represented; hence there Carlisle Bank v. Barnett, 3 W. & S. 248, is no reason why the appellant should without force as authority, in the question not have had full payment of his claim, before us. There Barnett was compelled debt and interest. to pay the accruing interest on the obliga- The decree of the Court below, so far tion, in which he was surety, though by a as it sustains the exception to the auditor's previous decree of the Court there had report awarding to the appellant the sum been awarded to the Bank the full amount of $128.90, the amount of interest due on of its claim from a fund raised upon a his bond after December 12, 1882, is now collateral judgment. But, as was said by reversed and set aside at the cost of the Mr. Justice SERGEANT in that case, this appellee, and the auditor's report, as to appropriation would have been payment that amount, is now restored and conhad it been immediately available, but as firmed. it was locked up in Court, and was not immediately available, there was no pay

Nixon v. McCrory. ment until the money came into the pos

In action on a promissary note defendant can set off session of the Bank : hence the liability of

a claim against plaintiff fur damages done to defendant the parties to the original obligation con- by plaintiff while he, plaintiff, was employed as engineer tinued.

Error to Court of Common Pleas No. I The same language may well be applied

of Allegheny county. to the case in hand. By the executor's sale, there was more than enough money

This was an action, brought by William raised to have satisfied Yeatman's lien, McCrory against Joseph Nixon, to re

cover the amount of a promissary note and, had it been immediately applied to

for $906.69, dated the 17th day of March, the payment of that lien, there would have A. D. 1881. been an end to all controversy. But it

The plaintiff filed the usual affidavit of was not so applied ; the appellant had to claim, and the defendant appeared and await the motion of the executor, and so filed an affidavit of defence, setting up a

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counter demand as a set-off or defence to service while in a foreign port, but in adthe note.

dition conspired with and induced the The defendant, Nixon, is the owner of

crew of said boat to desert it, he was a steam-tug engaged in towing coal clearly guilty of a breach of his contract barges from Pittsburgh to Louisville, Ky.,

with the defendant. The defendant also and Cincinnati, Ohio. And the plaintiff, swears, that when the plaintiff deserted McCrory, is a steamboat engineer. And the steamer, he left it with a high presNixon alleges that he employed McCrory sure of steam in its boilers, with a large as an engineer on his boat, and that the fire under the boilers and the fire doors boat left Pittsburgh with a tow of barges closed; that the said plaintiff was the ofand arrived at Cincinnati on or about April 8th, 1879, when McCrory advised chinery of said boat; that it was his duty the crew to strike for wages, and entered

to regulate the pressure of steam, control into a conspiracy with them to enforce an

the fires, and see that the fire doors were increase of wages or to jump the boat, as opened at the proper time, and that by termed by river men; and upon the cap

reason of this neglect the boilers were intain refusing to comply with his demands jured. While the affidavit is not as full that he, McCrory, the engineer, left the and precise as it might have been, we boat with the fires under the boilers, and cannot say it is evasive. It sets forth subwith a high pressure of steam, whereby stantially a breach of contract and of duty the boilers were injured to the extent of

on the part of plaintiff by means whereof $1000, and claimed as a set-off the dama

the defendant was injured. ges thus sustained by him against the Can such injury be set-off under our note held by the plaintiff, and sued on. Defalcation Act against the note in suit ? This the court below held he could not Of this we are in no doubt. The precise do, and sustained the judgment for want question was ruled in Halfpenny v. Bell, of a sufficient affidavit of defence; but i Norris 128, which is one of the more this difficulty was removed by allowing recent of a long line of cases assisting the the defendant to file a supplemental affi- same principle. davit of defence.

The rules of the court below provide A writ of error was taken to review that where a defendant admits a part of the judgment of the court below in hold- plaintiff's claim to be due, the plaintiff ing that the affidavit of defence was not may accept the tender, take judgment, sufficient, and that the damages sustained issue execution, and go to trial for the balby the defendant by reason of the con

Here the defendant admitted noduct of the plaintiff while engaged on thing, but denied the right of the plaintiff his boat at Cincinnati could only be re- to recover anything. Yet the learned covered by an action on the case for neg. court gave judgment against the defendligence or malfeasance, and would not, ant for a part of plaintiff's claim, and pertherefore, be the subject of set-off against mitted the plaintiff to go to trial for the the note sued on.

residue. This was certainly a liberal conNovember 20, 1882. Paxton, J. For struction of the rule of court, and leave the purpose of this case we must assume

us in some doubt whether there is a final the facts to be as stated in the affidavit of judgment below to which a writ of error desence. If, the defendant swears, he

would lie. As the case must go back, we hired the plaintiff as engineer on board have concluded to decide the main ques

tion. the steamer Joseph Nixon, for the term of one month, and that during said term the The judgment is reversed and a proplaintiff not only left the steamer and his cedendo awarded.




Hollis vs. Burns.

his will to assent to a renewal for such Upon the question of an implied renewal of a tenancy shorter term as the will or caprice of his all the terms of the former lease must be considered.

tenant might dictate. Hence, if a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under

If the lessee enters as a tenant by the which the tenant previously held.

year, and holds over, it is optional with Error to the Court of Common Pleas,

the landlord either to treat him as a tenant No. 1, of Philadelphia county.

from year to year or as a trespasser; October 2, 1882. MERCUR, J. The Hemphill v. Flin, supra. plaintiff declared in assumpsit on an im

It is true, for some purposes the lessee plied contract for use and occupation of a

for any certain time less than a year is recertain dwelling house. The defendant cognized as a tenant for years: 2 Bl. Com. had rented the house and occupied it for

140; Shaffer v. Sutton, 5 Binn 228. twenty months. Then she withdrew therefrom, notified the plaintiff, paid the

When, however, we are dealing with rent up to the time, and tendered the key, the question of an implied renewal of a which the plaintiff retained in such a

tenancy, all the terms of the former lease manner as not to release her from liability

must be considered. The purpose is not for the unexpired portion of the year in to make a new lease essentially different, case she was legally chargeable therefor.

but to continue the former so far as its

terms may be applicable. In its very The plaintiff claims she was a tenant

nature the implied renewal of a lease asfrom year to year, and seeks to recover

sumes a continuation of its characteristic rent for four months after she left the

features. Hence, if a landlord elect to house. The defendant alleges she rented .

treat one holding over as a tenant, he by the month, and was not liable beyond thereby affirms the form of tenancy under the months of her occupancy.

The let

which the tenant previously held. If that ting was by parol, and the evidence as to

was a tenancy by the month, it will preits terms were conflicting. The learned

sumptively so continue. The landlord judge charged the jury “if it was a letting cannot impose a longer term, nor one for fifty dollars per month, without any radically different from the former. thing being said about a year, then the plaintiff cannot recover the amount here

In case a tenant by the month holds claimed.

over, it will not be claimed that he is en

titled to three months' notice to quit. If The only specification of error is to this the tenancy be by the month, a month's

a charge. The plaintiff claims whether the notice to quit is sufficient: Taylor's Land. original lease was by the year or by the

and Tenant, $57. month; inasmuch as the defendant held over beyond a year, she can be required

The jury has found the letting was by to pay for the whole of the second year,

the month only. The tenant then had a although she did not occupy the premises right to leave when he did, and was not during any part of the last four months. legally chargeable for use and occupation Had the lease been by the year, the tenant

thereafter. might be so liable : Diller v. Roberts, 13 Judgment affirmed. S. & R. 60; Phillips v. Monges, 4 Wharton 226; Hemphill v. Flin, 2 Barr, 144All these were cases where the letting was by the year. They recognize a sound principle. Where the landlord has let specific property by the year, it would be manifestly unjust to compel him against


NO. 4

YORK LEGAL RECORD. or to briefly assign his reasons for the

construction he places upon the will of THURSDAY, MAR. 29, 1883.

testator in distributing and awarding the

balance in the hands of the Executors. ORPHANS' COURT.

The widow's counsel contend that the

testator intended by his last will to beCrone's Estate.

queath, and did bequeath to his said Wills---Construction of Personal and widow, one-third of his personal estate,

, real estate--Liability for payment of without any diminution whatever absodebts--Legacy after payment of debts.

lutely; and the interest of one-third of The testator, by his will, devised, “to my beloved wife, Rebecca Crone, the interest of one-third of all my per

his real estate during her natural life, sonal estate absolutely, and the interest of one-third of all my real estate during life." Then, after a specific bequest after deducting debts, &c., and claim acof tarming implements, he directs that “all the rest and residue of my estate, real, personal and mixed shall be

cordingly. divided among my children share and share alike but the share coming to my son John I give, devise and bequeath unto his wife Mary Jane Crone for the use of my son John

The position of the Executors and acduring life, and after his death to his children forever."

countants as announced by their counsel, HELD, recommitting the Auditor's report, that the widow was entitled to one-third part of the balance of the Mr. Trimmer, and that by which they personal estate after payment of a proportionate share of the debts, and to the interest of one-third of the real were governed in settling the estate is, estate after a smilar payment. Exceptions to Auditor's Report.

that the personal estate of testator was, The testator, by his will, devised “to my liabilities; and, as the personal estate has

and is primarly liable for his debts and

“ beloved wife, Rebecca Crone, the inter

been exhausted, and the balance on hand est of one-third of all my personal estate absolutely, and the interest of one-third of

is the proceeds of real estate sold for the all my real estate during life.” Then, after payments of debts and must be distributed

as real estate, the widow is entitled only a specific bequest of farming implements,

to the interest, during her natural life of he directs that “all the rest and residue of

the one-third of the net balance. Mr. my estate, real, personal and mixed shall

Wanner, in the course of his argument be divided among my children share and

before the Auditor, announced several share alike, but the share coming to my

legal propositions : son John I give, devise and bequeath unto his wife Mary Jane Crone for the use of

First. That as the interest of one-third my son John during life, and after his of the clear personal estate absolutely death to his children forever.”

had been bequeathed to the widow, she The Auditor, Geo. W. Heiges, Esq., re- it therefore entitled to the fund itself; as ported in substance as follows:

there is no direction as to where, or to The Executors' account shows that whom the fund shall go at her death, $1286.78 was the amount realized by citing Brownsfield's Estate, 8 Watts 465 ; them from testator's personal estate, and

Diehl's Appeal, 36 Pa. St. R. 120: Garret that the liabilities of the testator, and his

v. Rex., 6 Watts 14; Campbell v. Gilbert, estate, in the nature of debts and expen

6 Wharton 72 ; Van Rensalaer v. Dunkin's ses of settling up the estate already paid Executors, 24 Pa. St. R. 252. by the executors amount to the sum of Second. That the law leans to an abso$2447.71. It will therefore be readily lute, rather than to a defeasible estate, citseen that the items of credit taken in ac- ing Fahmey v. Holsinger, 65 Pa.St.R. 388. count for the payments aforesaid amount Third. That this is a contest between to a sum greatly in excess of the proceeds widow and residuary legatees, and that of the personal property. In view of the the debts must be paid out of residue, citclaim made by Messrs. Bentzel and Wan- ing McLaughlin's Executors v. McLaughner, on behalf of Rebecca Crone, widow lin, Adm'r., 12 Harris 29. The Auditor of testator, it is incumbent on the Audit- cannot agree with the learned counsel on

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