tra.

R. Sturgis Ingersoll (with him, Bal- On the other hand, Judge Wilhelm held lard, Spahr, Andrews & Madeira), con- that only the court of quarter sessions had jurisdiction under the Act of 1836, and Van Dusen, J., Dec. 29, 1926. The refused to make a similar order: Kefather of the minor died, leaving life and hoe's Estate, 10 Schuyl. Legal Rec. 142; benefit insurance payable to the minor Carroll's Estate, 26 Dist. R. 1058. amounting to $1,413.03, which has come. And in Sibilia's Estate, 82 Pa. Superinto the hands of the guardian. The ior Ct. 67, payment was refused from a minor and his two adult sisters ordered minor's estate for the expenses of the the father's burial by the petitioner at the last. illness of an indigent parent, on the cost of $538.50. The father left no es- ground that there was no liability upon a tate, and the adult sisters have no means; minor child for the debts of the parent. and the petitioner asks that the guardian No reference was made to the Act of be directed to pay this bill. In this re- 1836, and Bair v. Robinson was distinquest the minor, who is seventeen years guished on the ground that it was based old, has joined and his sisters have on implied contract; that is, we suppose, promised to reimburse him for their pro- on the fact that the person held liable portionate shares when they are able. had ordered the funeral—a fact not present in Sibilia's Estate, though it is one of the facts in the present case.

In Schurr's Estate, 13 Phila. 353, this court had to deal with the accounts of a guardian who had in many respects misapplied the estate of the ward. He was surcharged with various items and deprived of compensation; but the court did not surcharge him with the sum he paid for the funeral of the mother of the minor, who had no estate of her own, the amount not being extravagant in view of the minor's estate. It was remarked that such a payment "was always at the risk of the guardian," and it was approved "in

We agree that the Act of 1836 is not authority for action by the orphans'

court.

The most favorable aspect in which to regard the present claim is that it is for "necessaries" furnished the minor. We do not understand that the order of the minor is indispensable to hold him liable for real necessaries, and that difference between this case and Sibilia's Estate may be dismissed from consideration. The consideration of all the circumstances." In Van Ness's Estate, 68 Pitts. L. I. comfort of a parent's last illness is as J. 714, the court ordered payment for the much a necessity for a minor as his burfuneral of an indigent father from the ial, if not more, and we think the ruling estate of a minor, which estate consisted of Sibilia's Estate as to the one should of insurance on the father's life; and apply to the other, and that it is the latbased its conclusion on "common de-est and best authority on the subject. The cency" and upon the case of Bair v. Rob-priority of the widow's exemption to funinson, 108 Pa. 247. In that case it was held that a married, woman who liable under the Married Women's Act of April 11, 1848, P. L. 536, for "articles necessary for the support of the family of the husband and wife,” when ordered by her, must pay for the funeral of her mother, who was a member of her house

hold.

was

In Robert's Estate, 2 Pa. C. C. Reps. 647, the Orphans' Court of Chester County ordered payment of the funeral expenses of a grandmother, amounting to $200. out of a minor's estate of $3,000. The ruling was based upon the Act of June 13, 1836, P. L. 547, which required grandchildren to relieve and maintain a poor person at such rate as the court of quarter sessions should order.

eral expenses is an instance where the necessities of the living prevail over those of the dead: Weir's Estate, 28 W. N. C. 268; Norton's Estate, I Lacka. Leg. News 3. There is no statute applicable to minors, such as was the basis of decision in Bair v. Robinson. Schurr's Estate is weakened as a precedent by the language of the opinion.

If the burial of the parent was a necessity to the minor, it was equally so to his two sisters. In any event, so far as the minor is concerned, his estate would be liable only to a reasonable amount, and the amount claimed here is disproportionate to his estate and more than would be allowed for his own burial. See Ennis's Estate, 76 Pa. Superior Ct. 292.

The petition is dismissed.

C. P. of

Mitzel's Admr. v. People's

National Bank

York Co. bank as collateral security for payment of this and other liability or liabilities," of the makers to the bank, the judgment entered upon the second mentioned note. The first, or primary note, after small payments thereon, was renewed from time to time. The last renewal was dated September 15, 1925, for $1,050.00, payable four months after date. This renewal also contained the declaration relative to the judgment as collateral security. The decedent died December 25, 1925. His estate is insolvent.

Set-off-Decedent's estate-Collateral security-Set-off of undue note secured

by a past due judgment of insolvent decedent.

A debt of an insolvent decedent not due at

the time of his decease can not be set off in an action by his administrator; but where the defendant holds a note not due at the death of decedent secured by another note of the decedent past due at the time of his death, he may set off the amount due him in an action by the administrator.

The court, with the findings of fact of which the above is a brief summary, filed the below opinion and conclusions of law.

James J. Logan, for plaintiff.
Allen C. Wiest, for defendant.

Stock, J., February 21st, 1927.-The facts in this case are not in dispute. The

Where an insolvent decedent, in his life entire case depends upon a single question time, had given a note payable in four months, and at the same time had given, as collateral security for the payment of the note mentioned, another note with warrant of attorney to confess judgment, payable one day after date, on which judgment was entered, and the first note was renewed from

time to time and the last renewal did not mature until some time after decedent's death, in an action by the administrator against the holder of the note and judgment, it was Held that the amount due on the note

can be set off against the plaintiff's claim.

of law. Is a judgment held as collateral to secure the payment of note due after the death of decedent a proper setoff against an admittedly valid claim due decedent at the time of his death, where decedent died insolvent?

The right of set-off has been applied to decedent's estates where insolvency existed. "Thus, in suits brought by executors or administrators, where the credTrial without a jury of the action in itor's claim was due when decedent died, assumpsit by Samuel M. G. Mitzel, Ad-set-off has always been allowed, even ministrator of Andrew W. Curtin Mit- though his estate was insolvent: Murray zel, deceased, against People's National v. Williamson, Administrator of Gray, 3 Bank of Stewartstown, Pennsylvania, Binney 135; Com. v. Clarkson, AdminNo. 155, October Term, 1926, in the istrator of Passmore, I Rawle 291; Court of Common Pleas of York Co., Pa. Skiles, Administrator of Skiles, v. HousThe action was to recover from the ton, 110 Pa. 254"; Fisher, Commr. of bank $426.76, the balance on the Banking, v. Davis, 278 Pa. 129-132. But checking account of the decedent with where the debt proposed to be set off was the defendant bank. The bank admitted not due at the time of the death of dethe balance on the account in the plain-cedent, it cannot be so set off. And this tiff's favor; but offered a set-off based proceeds on the theory that the rights of upon the following facts: On May 13, creditors to the assets become fixed and 1922, the defendant and another, for determined at the death of decedent. Bosvalue, gave to the defendant bank a note ler v. The Exchange Bank, 4 Pa. 32; Apfor $1,200.00, payable four months after peal Farmers and Mechanics Bank, 48 date and at the same time gave to the Pa. 57; Vosburgh's Estate, 84 Sup. Ct. bank another note for $1,400.00, payable 10. one day after date, with warrant of at- The decision therefore turns on the torney to enter or confess judgment question whether this judgment was due against the makers of the note. Judg- and owing at the time of decedent's ment was entered on this note two days death. later. The first note contained the stipu- This judgment was confessed by plainlation by the makers declaring that they tiff May 15, 1922. The warrant to conhave "transferred and delivered to said fess judgment was contained in a note

On a question similar to that in the last citation the court said: "No extenhis notes were deposited as collateral sesion was given to Daugherty, and when curity it was the duty of the pledgee when they became due to collect them. It was immaterial whether the debt of the pledgor was due or not at the time the collateral became due; the pledgee was under obligation to collect the collateral": Daugherty v. Wiles, 156 S. W. 1089; see 1098, (2, 3), Court of Civil Appeals of

dated May 13, 1922, payable one day af-of payment, and therefore the endorsers. ter date. This note contained no restric-were released. It was held that the tion or limitation on the promise to pay. pledgee (the Bank) "was in a position at The judgment entered was absolute and any time to accept payment or to bring an regular on its face. Decedent died De-action thereon if requested by the defendcember 25, 1925. There can be no ques-ant": Brosemer v. Brosemer, 162 N. Y. tion but that this judgment was due, S. 1067; see 1069. owing and unpaid at the time of decedent's death. But the question is raised that payment of this judgment cannot be enforced because it was posted or pledged as collateral to secure the payment of another note given by the same maker to the same payee, which note had been renewed from time to time and the last renewal thereof was not due until some time after the maker's death. That until the primary obligation is due, the secondary or collateral obligation is not due. We cannot agree with this conclusion. A borrower can certainly secure his creditor by several distinct promises. No legal restriction prevents him from promising to pay his debt in four months, and at the same time agreeing to pay the same debt in one day. He merely secures the payment of his term obligation by another obligation presently due. So that if payment of the judgment in the instant for some reason, for instance, as his in-case was not postponed nor affected by solvency, or his death when insolvent, like the acceptance of renewal notes extending the instant case, his creditors may have the time of payment of the primary oblithe additional advantage of an obliga-gation.

tion past due.

Texas.

The pledgee of a note may, at its maturity, sue thereon, or enforce security thereto, though the debt for which it was pledged is not due: Seeley v. Wickstrom, 68 N. W. 1017.

It therefore follows that the time of

Conclusions of Law.

I.

2.

Defendant had the right to set off the at the time of plaintiff's death against the amount due and owing on said judgment amount due plaintiff on deposit with de

A judgment was given by a principal debtor to a surety as an indemnity against the consequences of the surety- The judgment confessed by plaintiff on ship. The judgment was afterwards as- May 15, 1922, and entered in the Court signed by the surety to the creditor as a of Common Pleas of York County to No. collateral security. It was held by Gib-363, April term, 1922, in favor of deson, Chief Justice, that "neither the bank fendant, was a debt due and owing by (the creditor) nor the surety was bound plaintiff at the time of his death. The to wait till the surety was actually preju- balance due was $1,050.00. diced by the default of the principal. The principal was bound to keep the surety not only indemnified, but unmolested; and to this end the judgment given the latter was put into his hands, as an instrument to extract payment from the funds of the principal debtor, and thus compel him to do what he ought to do": Bank v. Douglass, 4 Watts. 95. The principle set forth Defendant is entitled to judgment in its in this case is cited and affirmed in Hol-favor and against plaintiff, with costs of felder v. Schramm, 255 Pa. 493. In an suit. action on a negotiable note, which, after It is ordered that notice of the filing it was due, had been pledged for the pay-of these findings of fact and conclusions ment of a note payable at a later date, the defense was set up that this pleading of the note in suit was an extension of time

fendant.

3.

of law be forthwith given by the prothonotary to the parties, or to their attorneys, and if no exceptions thereto are

filed within thirty days after service of petitioners had any interest in the real said notice, judgment shall be entered in estate in question. accordance with this adjudication.

O. C. of

Yohe Estate

Edward Strausbaugh, the former husband of Susan Yohe, died seized of the York Co. real estate in question, leaving to survive. him a widow, the said Susan, afterward intermarried with Ammon Yohe, and one son, the said Nathan M. Strausbaugh. By his will the said Edward Strausbaugh provided as follows: "I give and bequeath unto my wife, Susan, all my property, personal and real, to be kept by her during her lifetime. But if my wife should not wish to keep this home, in and on which we now live, she shall have the liberty to sell or rent it away in any manner that she (my wife) thinks proper, and the proceeds arising out of such sale or renting away, shall belong to my wife, Susan, to be disposed of by her as she thinks proper. All my money on interest I give and devise unto my wife to be at her disposal. But my wife after my death shall first pay all the just debts that we now have or will make hereafter, the residue to belong to her, whether real or personal property, money on interest or interest on account."

Wills-Later clause may enlarge a life estate in prior clause-Blood of first purchaser.

The latter clauses of a will always govern, and the mere fact that an express estate for life in the same subject has been limited to the same person is not sufficient to pre

vent subsequently words from carrying the

fee.

The Act of June 7, 1917, P. L. 429 has abrogated the rule limiting real estate to the blood of the first purchaser.

A gift to the wife of the testator of all his "property, real and personal, to be kept by her during her life time" with the power to sell the real estate, "the proceeds arising out of such sale" to "belong to" the wife

proper," with a subsequent clause in the will

est on account" without a remainder over after the death of the wife ceated a fee in

the real estate to the wife.

The said Susan died intestate and "to be disposed of by her as she thinks leaving to survive her as next of kin, her disposing of the remainder of the estate af-husband, the said Ammon Yohe, and the ter the death of the wife reading "the resi- said three sons, namely, Harlan M. Yohe due to belong to her whether real or per- and Lehman M. Yohe and Nathan M. sonal property, money on interest or interStrausbaugh. The question is whether the said Susan Yohe took a fee simple or only a life estate under the will of her Petition of Ammon W. Yohe and oth- first husband, Edward Strausbaugh. The ers for the partition of the real estate first portion of the above quoted provislate of Susan Yohe, late of Jackson ion of the will of Edward Strausbaugh Township, York Co., Pa., deceased, in might lead to the conclusion that the gift the Orphans' Court of York Co., Pa. to the wife, Susan, of all his property, Heard on petition and answer. Inquest was to be for her lifetime only; but this awarded.

Allen C. Wiest, for petition.

Harvey A. Gross, for respondent.

is followed by a provision which enlarges the gift so as to permit her to dispose of and consume realty, and while this real estate was not disposed of by her during her lifetime, yet it tends to indicate the C. V. Henry, P. J., 52nd Judicial Dis- intention of the testator, as shown by the trict, specially presiding.-On the peti- succeeding clause of the will, in which he tion of the surviving husband and two of gives her absolute disposition of his the sons of Susan Yohe, deceased, a money investments and then follows with "rule" issued to show cause why an in- a residuary clause which is sweeping and quest in partition of the real estate of said Susan Yohe, deceased, should not be granted. Another son, Nathan M. Strausbaugh, the son of a former husband, filed an answer denying that the

gives her all his real and personal property. No words of inheritance are used, but none are necessary since the Act of April 8th, 1833, P. L. 249. It is to be noted that there was no gift over after

the death of the wife and this strength- Foster, J., October 4, 1926.—The ens the conclusion that the testator in-plaintiff, an attorney at law, brought this tended an absolute gift and devise to his suit to recover for legal services rendersurviving wife. ed at the instance and request of his The later clauses of the will always wife, Beatrice Mitchell, during which govern and it has been held that "the time the defendants, husband and wife, mere fact that an express estate for life were living together. in the same subject had been limited to The bill of the plaintiff for his legal. the same person, is not sufficient to pre-services was $165.00, the reasonableness vent the subsequent words from carrying of which amount is not disputed, so the the fee": Geyer v. Wentzel, 68 Pa. 84; only question that arises is whether the Myers v. Bentz, 127 Pa. 222. legal services were necessaries.

Prior to the Act of June 7th, 1917, P. L. 1917, P. L. 429, 438, this real estate would have gone back to Nathan M. Strausbaugh, the blood of the first purchaser, to whom it would seem rightfully to belong, but since the abrogation of the

The nature of the services was, the

employment of plaintiff in November 1925 by the wife to represent her in filing proceedings against her husband, Christopher C. Mitchell, on the ground that said Christopher C. Mitchell refused distinction of blood by this Act of Asto adequately support her and her chilsembly, we are left to determine this case solely upon the effect of the language dren, and further to stop his abuse of her children. used by Edward Strausbaugh in his will, and his intention as derived from this In accordance with said employment, language was undoubtedly to give his sur-plaintiff had numerous consultations in viving wife an absolute estate in his real his office with the said Christopher C. and personal property. Mitchell and Beatrice Mitchell, his wife, And now, to wit, February 5, 1927; in Christopher C. Mitchell was to pay and finally arrived at a settlement where"rule," or citation, absolute, and inquest his wife the sum of $10,000. This setawarded to make partition of the real es-tlement was eventually refused by the tate described in the petition as therein prayed.

wife for the reason that it was insufficient and inadequate.

The plaintiff herein then leld an information against Christopher C. Mitchell in the desertion and non-support branch of the county court; a day was fixed for a hearing, but prior to the date of hearing the case was continued.

During all this time, from the month of November, 1925, to the months of April, 1926, inclusive, the plaintiff herein devoted considerable of his time and attention to the differences existing between Christopher C. Mitchell and Beatrice Mitchell, his wife, defendants. herein.

From this evidence it will be seen that it is undisputed that differences existed between the defendants husband and wife, and the court was of the opinion, taking into consideration all the surrounding circumstances of the case, that the legal services rendered at the instance and request of the wife by the plaintiff were necessaries.