When the real estate of a solvent decedent is sold by order of Court for the payment of debts, interest on liens does not stop at the date of confirmation of the sale, but when the money is paid to the debtor. PER GORDON, J. If the estate were insolvent, the interest would cease at the date of the confirmation of the sale. February 26, 1883. GORDON, J. The appellant held the bond of Carlton J. Passmore, the testator, for the sum of $5,000, which was secured by a mortgage on certain of the real estate of the obligor.Some time after the death of Carlton J. Passmore, his executor and legatee, Wills | Passmore, acting under the authority of an order of the Orphans' Court, sold the real estate for the payment of debts and legtcies. This sale was confirmed December 12, Appeal from the Orphans' Court of 1881, and on the 8th of May, 1882, the Chester county. Carlton J. Passmore died testate, seized of certain real estate which was sold, on the application of the executor, who was also a legatee, by order of the Court to pay debts. The purchaser was also a legatee. The personal property was sufficient to pay all the debts except a mortgage of $5,000 which was a lien on the real estate sold. The sale was confirmed Dec. 11, 1881. On May 8, 1882, the executor paid the appellant the amount of his mortgage with interest to the date of the confirmation of the sale. A deed to the purchaser was made about April 1, 1882, when the purchase money was to be paid. The account of the executor showed a considerable balance, after payment of all debts, which was payable to legatees under the following provision of the will:"I leave to William's boys all of my property, to be divided between them, share and share alike *** after all my debts are paid." The appellant presented the bond accompanying this mortgage before the auditor on distribution (John H. Brinton, Esq.,) and claimed interest thereon from Dec. 11, 1882, to the date of the distribution by the auditor. The auditor allowed the claim. Exceptions were taken to this allowance, which were sustained by the Court below (FUTHEY, P. J.) and the report recommitted to the auditor for correction. executor paid over to Yeatman the full amount of the principal of his bond, but refused to pay the interest accruing between those dates. Before the auditor, who was appointed to make distribution of the money raised from the sale above mentioned, the appellant present a claim for this interest, $128.90, and had it allowed. To this allowance an exception was taken, which was sustained in the Court below, on the ground that the interest on the bond ceased at the time of the confirmation of the executor's sale. Had the estate of Passmore been insolvent, the doctrine assumed by the Court below would have been unexceptionable, for, in that event it would have had the support of all the authorities from Ramsey's Appeal, 4 W. 71, down to the case of the Brownsville Bank, 15 Nor. 347. But Passmore's estate was entirely solvent and the sale was not made on motion of the mortgagee, but upon the motion of the executor end for the purpose of the settlement of the estate. Under these circumstances, we cannot understand why the appellant was not entitled to his whole claim, debt and interest. This is a very good reason why a defendant, as in Strohecker v. Farmers' Bank, 6 Watts 96, should not be charged with interest after the return day of an executor levied upon his property, for the creditor has thereby 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 the position of a trustee or baliff for the plaintiff. If, however, as is admitted in the case cited, the defendant, by his interference, delays the payment of the money to the plaintiff, he is chargeable with the accruing interest. So, as in Ramsey's Appeal, 4 W. 71, where the lands of an insolvent estate are sold for the payment of debts, there is also a good reason why the interest upon those debts should stop upon the confirmation of the sale, for the fund then belongs to the creditors, and they are entitled to distribution as of that time; hence, there is no fund left for the payment of subsequently accruing interest. But even this rule, as we find by the Brownsville Bank case, above cited, has its exception, for it was there ruled that when the fund continues to draw interest after the date of the confirmation of the sale, the creditor is entitled to his proportionate share thereof. Nor is the case of the Carlisle Bank v. Barnett, 3 W. & S. 248, without force as authority, in the question before us. There Barnett was compelled to pay the accruing interest on the obligation, in which he was surety, though by a previous decree of the Court there had been awarded to the Bank the full amount of its claim from a fund raised upon a collateral judgment. But, as was said by Mr. Justice SERGEANT in that case, this appropriation would have been payment had it been immediately available, but as it was locked up in Court, and was not immediately available, there was no payment until the money came into the possession of the Bank; hence the liability of the parties to the original obligation continued. The same language may well be applied to the case in hand. By the executor's sale, there was more than enough money raised to have satisfied Yeatman's lien, and, had it been immediately applied to the payment of that lien, there would have been an end to all controversy. But it was not so applied; the appellant had to await the motion of the executor, and so Or it happened that the claim remained unpaid until some six months after the confirmation of the sale. On what principle, then, is Yeatman to be made to forfeit a substantial part of his bond? how can his debt be said to have been paid before he got the money for it? It is true this was an official sale, and, by it, the lien of the mortgage was extinguished, but what of that? It did not extinguish the debt secured by the mortgage, that remained until it was paid, so that, in effect, the sale had no more signifiance than if it had been made under a power in the will. It was made for the settlement of a solvent estate; the money went to the executor, and it was only through him that Yeatman could receive it. The delay was caused by no act of the appellant, nor by a judicial necessity, but by the executor and for the convenience of the estate which he represented; hence there is no reason why the appellant should not have had full payment of his claim, debt and interest. The decree of the Court below, so far as it sustains the exception to the auditor's report awarding to the appellant the sum of $128.90, the amount of interest due on his bond after December 12, 1882, is now reversed and set aside at the cost of the appellee, and the auditor's report, as to that amount, is now restored and confirmed. Nixon v. McCrory. In action on a promissary note defendant can set off a claim against plaintiff for damages done to defendant by plaintiff while he, plaintiff, was employed as engineer for defendant. of Allegheny county. Error to Court of Common Pleas No. I This was an action, brought by William McCrory against Joseph Nixon, to recover the amount of a promissary note for $906.69, dated the 17th day of March, A. D. 1881. The plaintiff filed the usual affidavit of claim, and the defendant appeared and filed an affidavit of defence, setting up a counter demand as a set-off or defence to service while in a foreign port, but in adthe note. The defendant, Nixon, is the owner of a steam-tug engaged in towing coal barges from Pittsburgh to Louisville, Ky., and Cincinnati, Ohio. And the plaintiff, McCrory, is a steamboat engineer. And Nixon alleges that he employed McCrory as an engineer on his boat, and that the boat left Pittsburgh with a tow of barges and arrived at Cincinnati on or about April 8th, 1879, when McCrory advised the crew to strike for wages, and entered into a conspiracy with them to enforce an increase of wages or to jump the boat, as termed by river men; and upon the captain refusing to comply with his demands that he, McCrory, the engineer, left the boat with the fires under the boilers, and with a high pressure of steam, whereby the boilers were injured to the extent of $1000, and claimed as a set-off the damages thus sustained by him against the note held by the plaintiff, and sued on. This the court below held he could not do, and sustained the judgment for want of a sufficient affidavit of defence; but this difficulty was removed by allowing the defendant to file a supplemental affidavit of defence. A writ of error was taken to review the judgment of the court below in holding that the affidavit of defence was not sufficient, and that the damages sustained by the defendant by reason of the conduct of the plaintiff while engaged on his boat at Cincinnati could only be recovered by an action on the case for negligence or malfeasance, and would not, therefore, be the subject of set-off against the note sued on. November 20, 1882. PAXTON, J. For the purpose of this case we must assume the facts to be as stated in the affidavit of defence. If, as the defendant swears, he hired the plaintiff as engineer on board the steamer Joseph Nixon, for the term of one month, and that during said term the plaintiff not only left the steamer and his dition conspired with and induced the crew of said boat to desert it, he was clearly guilty of a breach of his contract with the defendant. The defendant also swears, that when the plaintiff deserted the steamer, he left it with a high pressure of steam in its boilers, with a large fire under the boilers and the fire doors closed; that the said plaintiff was the officer in charge of said boilers and the machinery of said boat; that it was his duty to regulate the pressure of steam, control the fires, and see that the fire doors were opened at the proper time, and that by reason of this neglect the boilers were injured. While the affidavit is not as full and precise as it might have been, we cannot say it is evasive. It sets forth substantially a breach of contract and of duty on the part of plaintiff by means whereof the defendant was injured. Can such injury be set-off under our Defalcation Act against the note in suit? of this we are in no doubt. The precise question was ruled in Halfpenny v. Bell, I Norris 128, which is one of the more recent of a long line of cases assisting the same principle. The rules of the court below provide that where a defendant admits a part of plaintiff's claim to be due, the plaintiff may accept the tender, take judgment, issue execution, and go to trial for the bal ance. Here the defendant admitted nothing, but denied the right of the plaintiff to recover anything. Yet the learned court gave judgment against the defendant for a part of plaintiff's claim, and permitted the plaintiff to go to trial for the residue. This was certainly a liberal construction of the rule of court, and leave us in some doubt whether there is a final judgment below to which a writ of error would lie. As the case must go back, we have concluded to decide the main question. The judgment is reversed and a procedendo awarded. Hollis vs. Burns. Upon the question of an implied renewal of a tenancy all the terms of the former lease must be considered.Hence, if a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under which the tenant previously held. Error to the Court of Common Pleas, No. 1, of Philadelphia county. his will to assent to a renewal for such shorter term as the will or caprice of his tenant might dictate. If the lessee enters as a tenant by the year, and holds over, it is optional with the landlord either to treat him as a tenant from year to year or as a trespasser; Hemphill v. Flin, supra. It is true, for some purposes the lessee for any certain time less than a year is re October 2, 1882. MERCUR, J. The plaintiff declared in assumpsit on an implied contract for use and occupation of a certain dwelling house. The defendant had rented the house and occupied it for cognized as a tenant for years: 2 Bl. Com. twenty months. Then she withdrew therefrom, notified the plaintiff, paid the rent up to the time, and tendered the key, which the plaintiff retained in such a manner as not to release her from liability for the unexpired portion of the year in case she was legally chargeable therefor. The plaintiff claims she was a tenant from year to year, and seeks to recover rent for four months after she left the house. The defendant alleges she rented by the month, and was not liable beyond the months of her occupancy. The letting was by parol, and the evidence as to its terms were conflicting. The learned judge charged the jury "if it was a letting for fifty dollars per month, without any thing being said about a year, then the plaintiff cannot recover the amount here claimed. The only specification of error is to this charge. The plaintiff claims whether the original lease was by the year or by the month; inasmuch as the defendant held over beyond a year, she can be required to pay for the whole of the second year, although she did not occupy the premises during any part of the last four months. Had the lease been by the year, the tenant might be so liable: Diller v. Roberts, 13 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 140; Shaffer v. Sutton, 5 Binn 228. When, however, we are dealing with the question of an implied renewal of a tenancy, all the terms of the former lease must be considered. The purpose is not to make a new lease essentially different, but to continue the former so far as its terms may be applicable. In its very nature the implied renewal of a lease assumes a continuation of its characteristic features. Hence, if a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under which the tenant previously held. If that was a tenancy by the month, it will presumptively so continue. The landlord cannot impose a longer term, radically different from the former. In case a tenant by the month holds over, it will not be claimed that he is entitled to three months' notice to quit. If the tenancy be by the month, a month's notice to quit is sufficient: Taylor's Land. and Tenant, $57. The jury has found the letting was by the month only. The tenant then had a right to leave when he did, and was not legally chargeable for use and occupation thereafter. Judgment affirmed. YORK LEGAL RECORD. VOL. IV. THURSDAY, MAR. 29, 1883. ORPHANS' COURT. Crone's Estate. No. 4 Wills--Construction of Personal and real estate-Liability for payment of debts--Legacy after payment of debts. The testator, by his will, devised, "to my beloved wife, Rebecca Crone, the interest of one-third of all my personal estate absolutely, and the interest of one-third of all my real estate during life." Then, after a specific bequest of farming implements he directs that "all the rest and residue of my estate, real, personal and mixed shall be 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 during life, and after his death to his children forever." HELD, recommitting the Auditor's report, that the widow was entitled to one-third part of the balance of the personal estate after payment of a proportionate share of the debts, and to the interest of one-third of the real estate after a smilar payment. Exceptions to Auditor's Report. The testator, by his will, devised "to my beloved wife, Rebecca Crone, the interest of one-third of all my personal estate absolutely, and the interest of one-third of all my real estate during life." Then, after a specific bequest of farming implements, he directs that "all the rest and residue of my estate, real, personal and mixed shall be 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 during life, and after his death to his children forever." The Auditor, Geo. W. Heiges, Esq., reported in substance as follows: or to briefly assign his reasons for the construction he places upon the will of testator in distributing and awarding the balance in the hands of the Executors. The widow's counsel contend that the testator intended by his last will to bequeath, and did bequeath to his said widow, one-third of his personal estate, without any diminution whatever absolutely; and the interest of one-third of his real estate during her natural life, after deducting debts, &c., and claim accordingly. The position of the Executors and accountants as announced by their counsel, Mr. Trimmer, and that by which they were governed in settling the estate is, that the personal estate of testator was, liabilities; and, as the personal estate has and is primarly liable for his debts and been exhausted, and the balance on hand is the proceeds of real estate sold for the payments of debts and must be distributed as real estate, the widow is entitled only to the interest, during her natural life of the one-third of the net balance. Mr. Wanner, in the course of his argument before the Auditor, announced several legal propositions : First. That as the interest of one-third of the clear personal estate absolutely had been bequeathed to the widow, she it therefore entitled to the fund itself; as there is no direction as to where, or to whom the fund shall go at her death, citing Brownsfield's Estate, 8 Watts 465; Diehl's Appeal, 36 Pa. St. R. 120: Garret v. Rex., 6 Watts 14; Campbell v. Gilbert, 6 Wharton 72; Van Rensalaer v. Dunkin's The Executors' account shows that $1286.78 was the amount realized by them from testator's personal estate, and that the liabilities of the testator, and his estate, in the nature of debts and expenses of settling up the estate already paid Executors, 24 Pa. St. R. 252. by the executors amount to the sum of $2447.71. It will therefore be readily seen that the items of credit taken in account for the payments aforesaid amount to a sum greatly in excess of the proceeds of the personal property. In view of the In view of the claim made by Messrs. Bentzel and Wanner, on behalf of Rebecca Crone, widow of testator, it is incumbent on the Audit Second. That the law leans to an absolute, rather than to a defeasible estate, citing Fahmey v. Holsinger, 65 Pa.St. R. 388. Third. That this is a contest between widow and residuary legatees, and that the debts must be paid out of residue, citing McLaughlin's Executors v. McLaughlin, Adm'r., 12 Harris 29. The Auditor cannot agree with the learned counsel on |