Clay Telephone Co. v. Root, 17 WEEKLY NOTES, | $40,000. He became satisfied that the firm was 200. Lucesco Co. Oil Co. v. Brewer, 66 Pa. St. 351. The entire right of action was therefore in the Weaver Bros. The plaintiff was a stranger to the contract and to the consideration, and could not bring suit. Dicey on Parties to Actions, 94. 1 Wharton on Contracts, pp. 506-893. Blymire v. Boistle, 6 Watts, 183. It is only where a trust has been impressed upon a fund confided to the defendant that the cestui que trust may bring suit therefor. Justice v. Tallman, 86 Pa. St. 147. Wynn's Adm. v. Wood, 97 Id. 216. Zell's Ap., 111 Id. 532. The decisions under the Statute of Frauds of April 26, 1855 (P. L. 308), in actions brought on a special promise to answer for the debt or default of another, are in accord with and support the views cited above. Malone v. Keener, 44 Pa. St. 107. Hind v. Holdship (2 Watts, 106) is irreconcilable with the subsequent case of Blymire Boistle (6 Watts, 182). Roth v. Barner (12 WEEKLY NOTES, 523) is not an authority in point. C. J. Erdman (Henninger & Dewalt with him), for defendant in error. The action was clearly sustainable under the authorities. Hind v. Holdship, 2 Watts, 104. Barner v. Roth, 12 WEEKLY NOTES, 523. The insolvent, and asked them to secure him by giving him a judgment note in a sum sufficient to cover his indorsements, so that he could have judgment entered against them and their stock seized and sold by the sheriff. On the 12th of August, 1884, they executed and delivered to him a judgment note for $25,500, on which he caused judgment to be entered and execution to issue. Weaver Bros. claimed that this judgment note was executed by them upon the promise by Adams that he would do the following things, viz: that he would pay all their debts without regard to their number or amount; that he would pay to them the sum of $4000 in cash; give them a house and lot adjoining and some vacant lots in rear of the property then occupied by them; provide them a half interest in a grocery store and give them a "free name." David Kuehn was a creditor of the Weaver Bros. at the time of their failure, and brings this suit against Adams to recover the debt due him from Weaver Bros. He seeks to recover on the contract which the Weavers claim to have made with Adams when the judgment note was given him. Upon the trial two questions were raised; one of fact as to the making of the contract on which the plaintiff sued, and one of law as to his right to sue upon it if made as alleged. The the action was well brought if they found the jury, under an instruction from the Court that contract to have been made, have decided that this remarkable contract was made as testified to by the Weavers. The question now to be considered is the correctness of the instruction. contract sued on is one to which the plaintiff is a stranger. It was made with the Weaver Bros. The consideration moved wholly from them and they were the parties to be benefited by the performance of its terms. The common law rule is that "no one can sue on a contract to which he The If the Court sees fit to require it, the plaintiff below is in a position to ask an amendment mak-is not a party." (Wh. on Contracts, 784; ing Weaver Bros. the legal plaintiffs bringing suit to plaintiff's use. Guthrie ". Kerr, 4 Norris, 303. Torrens v. Campbell, 24 Smith, 470. In the present case the Weavers practically put all their property into the hands of defendant below upon a trust to pay all new creditors therefrom. This arrangement operated to the disadvantage of those creditors, and they are entitled to bring suit, under the authorities cited by the plaintiff in error against the trustees. February 27, 1888. THE COURT. In 1884 and for several years prior thereto, the firm of Weaver Bros. were extensively engaged in the manufacture of cigars. Samuel Adams was an accommodation indorser for them, and in August, 1884, was upon their paper for upwards of Hare on Contracts, 193.) The same rule is laid down in Chitty's Pleading. It is still adhered to in England. In this country it is recognized as the law in most of the States and by the Supreme Court of the United States (98 Ú. S. Rep. 123). In this State it was stated very clearly by Justice SERGEANT in Blymire v. Boistle (6 Watts, 182). That case has been followed and the authority of the rule recognized in several later cases, among which are Torrens v. Campbell (74 Pa. 472) and Kountz v. Holthouse (85 Id. 235). In the latter of these cases it was applied by MERCUR, J., who said: "As he (the plaintiff) was a stranger to the contract and to the consideration on which it rested, he could not recover." In Guthrie v. Kerr (85 Pa. 303), where it was apparent that an action could have been maintained by the per The note, sonal representatives of Alexander Guthrie, it | perty was set apart for his benefit. was said that "it would be a harsh rule of law under all the evidence, was given for the purthat would throw on the defendant the additional pose of covering the indorsements of Adams. burden of a suit by each of the legatees." This case therefore stands under the general rule and is not brought within the limit of the exceptions to its operation. The suggestion of the Court below that the title might be amended by adding the name of the Weaver Bros. as legal plaintiffs, will not relieve against the difficulty. If the plaintiff can maintain his suit so can every creditor of the Weaver Bros. maintain his separate action for his particular debt upon the same contract, and we would then have the Weaver Bros. as legal plaintiffs in possibly one hundred or more suits for the use of so many separate creditors on the same contract; and, to close the series, an action by the Weavers to recover for the non-performance of such portions of the contract as related to payment of money or delivery of property directly to themselves. The inconvenience and injustice of such a result is too obvious to require discussion. Judgment reversed. Opinion by WILLIAMS, J. L. L., Jr. February 15, 1888 Reinohl v. Shirk. Will, construction of-Intention arrived at by consideration of all parts-Discussion of the word" issue." There is, however, a line of cases in which a third party has been allowed to recover on a contract to which he was not a party, and several of these are brought to our attention by the defendant in error. An examination of these cases will show that they recognize the rule as we have stated it, and are relieved from its operation because of the nature of the consideration of the contract sued on. The distinction on which they rest is pointed out in Blymire v. Boistle, supra. Where one person enters into a contract with another to pay money to a third, or to deliver some valuable thing, and such third party is the only party interested in the payment or the delivery, he can release the promissor from performance or compel performance by suit. If, on the other hand, a debt already exists from one person to another, a promise by a third person to pay such debt is for the benefit of the original debtor to whom it is made, and can only be released or enforced by him. If it could also be enforced by the original creditor the promissor would be liable to two actions for the same debt at the same time and upon the same contract. Among the exceptions Jan. '88, 240. are cases where the promise to pay the debt of a third person rests upon the fact that money or property is placed in the hands of the promissor for that particular purpose. Also where one buys out the stock of a tradesman and undertakes to take the place, fill the contracts, and pay the debts of his vendor. These cases as well as the case of one who receives money or property on the promise to pay or deliver to a third person, are cases in which the third person, although not a party to the contract, may be fairly said to be a party to the consideration on which it rests. In good conscience the title to the money or thing which is the consideration of the promise passes to the beneficiary, and the promissor is turned in effect into a trustee. But when the promise is made to, and in relief of him to whom the promise is made, upon a consideration moving from him, no particular fund or means of payment being placed in the hands of the promissor out of which the payment is to be made, there is no trust arising in the promissor and no title passing to the third person. The beneficiary is not the original creditor who is a stranger to the contract and the consideration, but the original debtor who is a party Plaintiffs having agreed to sell a certain proto both, and the right of action is in him alone. perty to defendant, tendered a deed thereof which The application of this rule to the case under was refused on the ground of an imperfect title consideration is decisive of the plaintiff's case. in them. This was a case stated for the opinion If Adams made the agreement sued on, he made of the Court, the Court to enter judgment for it with Weaver Bros. Its various provisions the plaintiffs, if of opinion that plaintiffs could were for their benefit. No fund was provided convey a title in fee simple of these premises to for the payment of the plaintiff's debt, no pro- defendant, otherwise judgment for defendant. In construing a will the intention of the testator can be best arrived at by a consideration of the entire in strument. Whether the word "issue" in a will is a word of tention of the testator, as disclosed by the entire purchase or a word of limitation depends upon the ininstrument. It will be treated as the former unless a contrary intention appears. As a word of limitation "issue" means "heirs of the body" and a devise to one" and his issue," or a devise over "on failure of issue" creates an estate tail Failure of issue" imports a general indefinite failure (converted by the Act of 1855 to a fee simple). of issue. Error to the Common Pleas of Lebanon County. Assumpsit, by William H. Shirk and Mary S. Bodenhorn and her husband, Jerome J. Bodenhorn, against John 'Reinoehl. Plaintiffs' title was derived from a devise to them "and their lawful issue," and the following clause in the will of their grandfather : "Item. I further order and direct that in case either of my grandchildren, the children of my son Lorenzo, deceased, shall die without leaving lawful issue, then and in that case, the share of the said child shall go to the survivor, and in case both of the said children should die without leaving lawful issue, then it is my will and I order and direct that the real estate, herein before devised to them as tenants in common, as well as the one-fifth part of my residuary estate shall go, and I hereby devise and bequeath the same to my four remaining children, it being my express will, and I hereby order and direct that under no circumstances shall the late divorced wife of my deceased son. Lorenzo have any part or portion of my estate and effects, whether real, personal or mixed." hundred dollars." Defendant took this writ, assigning as error (1) the entry of judgment in favor of plaintiffs; (2) the failure of the Court to enter judgment for defendant. Grant Weidman, for plaintiff in error. Defendant below was entitled not only to a good title but to an indubitable one. February 27, 1888. THE COURT. Subject to certain "uses, terms, conditions, and limitations," during the lifetime of his daughter Susan, and for her benefit, the testator, William Shirk, devised the lot in question to William H. and Mary Shirk, two of the defendants in error, children of his deceased son Lorenzo and their lawful issue;" and, in same connection, directed that, upon the decease of his said daughter Susan, "and then only, shall the possession thereof be taken by my said two grandchildren . . . or their lawful issue, subject, however, to the limitations and restrictions hereinafter mentioned, they to take and hold the same as tenants in common, and for which, in the distribution of my estate, I order and direct that they be charged the sum of four thousand dollars." The Court (MCPHERSON, J.) said: "This In the seventh item of his will, he also gives question seems to be ruled by Eichelberger . one-fifth of his residuary estate to same two Barnitz (9 Watts, 447), Lawrence v. Lawrence grandchildren "and to their lawful issue, first (105 Pa. St. 335). We direct judgment to be deducting therefrom the sum of four thousand entered in favor of the plaintiffs for twenty-eight dollars, which I have charged them for the real estate devised to them." Again, in the next succeeding item, he provides as follows: "I further order and direct that in case either of my grandchildren, the children of my son Lorenzo, deceased, shall die without leaving lawful issue, then and in that case the share of the said child shall go to the survivor, and in case both of the said children should die without leaving lawful issue, then it is my will and I order and direct that the real estate hereinbefore devised to them as tenants in common, as well as the one-fifth part of my residuary estate, shall go, and I hereby devise and bequeath the same to my four remaining children." Swayne v. Lyon, 17 Smith, 436. Reck's Appeal, 28 Smith, 435. "When the time at which the devise over is to take effect, is expressly or impliedly limited to a particular period, within a life or lives in being; and twenty-one years after . . . . in all these cases, the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure of issue." Eichelberger v. Barnitz, 9 Watts, 447. Hill v. Hill, 24 Smith, 173. The testator evidently used the words "lawful understandingly, because in other items where issue" and "die without leaving lawful issue" he intended to give a fee, or a life estate with remainder in fee, or to create a trust, etc., he used apt words for the purpose. For example, in the third item he devises a house and lot to his son Lewis "for and during his lifetime, and at and immediately after his death, I give and devise the same unto the children of my said son Lewis C., their heirs and assigns forever as tenants in common;" and in the fourth item he devises a house and lot to his "son Samuel Shirk, and to his heirs and assigns forever." The word "issue" in a will is to be construed either as a word of limitation or of purchase as will best effectuate the intention of the testator gathered from the entire instrument. Prima facie, however, the word means "heirs of the body," and is to be construed as a word of limitation and not of purchase, unless there be something on the face of the will to show it was intended to have a less extended meaning, and to be applied to children only, or a particular class, Held, that the wife took title in fee simple to the premises. or at a particular time. Standing alone, there- | separate use; the said party of the second part (grantee) fore, the words "die without leaving issue" and to convey by good and sufficient deed to the said Kate other expressions of same import mean an inde-Lyons the within described premises in fee simple." The grantee six days later conveyed to the wife by finite failure of issue (Taylor v. Taylor, 63 Pa. deed in fee simple: 481; Middleswarth's Administrator v. Blackmore, 74 Id. 414). At common law, in the absence of words making a different intent apparent, the established interpretation of such expressions in a will is that they import a general indefinite failure of issue, and not a failure at the death of the first taker; and such has undoubtedly been the rule in this State since Eichelberger v. Barnitz (9 Watts, 447). In that case the testator directed that if his son Henry "should die without leaving any lawful issue," that then his full share should go to his brothers and sisters, and it was held that Henry took a fee tail. Some of the later cases in which the rule is recognized are Lawrence v. Lawrence (105 Pa. 335); Carroll v. Burns (108 Id. 386), and Cockins's Appeal (111 Id. 26). Error to the Common Pleas No. 2, of Allegheny County. Sci. fa. sur mortgage, by Willian G. Warden against Kate Lyons, executrix and widow of Andrew Lyons, deceased. In the absence of any evidence of intention to use the words "die without leaving lawful issue", in any other than their well-established meaning, it is reasonable to assume that testator intended they should be so construed. If so, he created an estate, which according to all the authorities would have been an estate tail prior to the Act of April 27, 1855, but which under its operation is converted into a fee simple. Indeed it is conceded there is nothing in the will to qualify or limit the meaning of the words in question, unless it be the clause wherein the testator says: "It being my express will, and I hereby order and direct that under no circumstances shall the late divorced wife of my deceased son Lorenzo have any part or portion of my estate and effects, whether real, personal, or The following special verdict was rendered by the jury: "We find for the plaintiff in the sum of seventeen thousand seven hundred and forty-three dollars, subject to the opinion of the Court on the question of law reserved, and the following facts found, to wit:— "We find that Kate Lyons, the owner and mortgagor, obtained title as follows: Andrew Lyons was the owner, and, when in good circumstances, with his wife, joined in a conveyance to R. J. Hemmick, by deed dated August 20, 1879, recorded in Deed Book, vol. 391, page 687, conveying this land for the uses and trusts mentioned in said deed, to wit: In trust, however, for the said Kate Lyons, and for her sole and separate use, the said party of the second part to convey, by good and sufficient deed, to the said Kate Lyons, the within described premises in fee simple.' And thereupon the said R. J. Hemmick and his wife, by deed of general warranty, dated August 26, 1879, recorded in Deed Book, vol. 391, page 689, conveyed the said lots of ground to Kate Lyons in fee simple, reciting the deed of Andrew Lyons and wife in trust for said Kate Lyons. For greater certainty these deeds are made a part of this verdict. "If the Court be of opinion that under these conveyances, Kate Lyons, being then the wife of Andrew Lyons, had power to mortgage this property for the debt of her husband, as recited in the bond and mortgage offered in evidence, judgment to be entered on the verdict in favor of the plaintiff. If the Court be of opinion that she had not such power, then judgment to be entered in favor of defendant, non obstante veredicto." The Court, after argument by counsel, entered judgment for defendant. Plaintiff took this writ, assigning this action of the Court as error. John Dalzell (J. Erastus McKelvy with him), November 8, 1887. for plaintiff in error. Warden v. Lyons. Separate use or fee simple-Construction of deeds. A husband, in consideration of one dollar, conveyed premises to a third party "In trust, however, for the said Kate Lyons (grantor's wife), and for her sole and "The intention to create a separate estate must be clearly and unequivocally expressed in order to deprive the husband of his marital rights. And in modern times the judges have required much more stringent expressions for this purpose than were once considered sufficient. It was said in a late case by Lord BROUGHAM, that the expressions must be such as to leave no doubt | Hill on Trustees, § 420, p. 656. Cord on Married Women, § 568, note 1. Tritt's Adm'r v. Colwell, 7 Casey, 234. The inability of a feme covert with respect to the disposition of her estate arises out of, and is founded on, the rule that she has no power over that estate, except such as is conferred by the deed. Lancaster v. Dolan, 1 Rawle, 231. In this case Hemmick was to convey, and did convey, to her in fee simple. An estate granted to a married woman for her sole and separate use is "in form an equitable fee, and in substance it is a fee legal or equitable, and there is nothing to prevent its descent as a fee." It has simply this temporary qualification, that it is withdrawn from the dominion of the husband so effectually that she cannot convey or incumber it during coverture. Thomas v. Folwell, 2 Wharton, 11. 1 Bouvier's Law Dict. 649. Guthrie's Appeal, 1 Wright, 9. January 3, 1888. THE COURT. The question in this case is whether under the deeds referred to in the special verdict, Kate Lyons, the defendant below, took a separate use estate or an estate in fee simple. The effect of a separate use is to withdraw the estate from the dominion of the husband. (Thomas In the construction of deeds, if there are in-v. Folwell, 2 Wharton, 11.) An estate in fee consistencies, the intention of the grantor, if legal, is to govern. Perry on Trusts, § 650. Huss v. Stephens, 1 Smith, 282. excludes all qualification or restriction as to the persons who may inherit as heirs, thus distinguishing it from a fee-tail as well as from an estate which, though inheritable, is subject to conditions or collateral determination. (Bouvier's Law Dict., Vol. 1, p. 649.) Andrew Lyons, the husband of the defendant, was at one time the owner of the property in question. While the title was vested in him, he united with his wife in a conveyance of said property to one R. J. Hemmick. The con It seems very plain that the intent of Andrew Lyons was to give the property in question to his wife. He undertook to do it in the customary way, by making a third party the conduit of the title. He wanted to make sure, however, that his wife would get the property and that no risk should be incurred of any one else getting it. In the exercise of what he thought a wise pre-sideration of the deed was $1, and after the caution he provided that, while the title was in habendum was inserted this clause: "In trust, Hemmick, it should be there for his (Lyons's) however, for the said Kate Lyons, and for her wife's use, and beyond the possibility of diver- sole and separate use; the said party of the sion. But he also provided that Hemmick should second part (Hemmick), to convey by good and not continue to hold it, but should convey it to sufficient deed, to the said Kate Lyons, the Mrs. Lyons; and should convey it to her abso- within described premises in fee simple." Six lutely; i. e., by good and sufficient deed in fee days after the date of this deed Hemmick consimple. veyed the premises by deed in fee simple to Mrs. Lyons. Subsequently Mr. and Mrs. Lyons mortgaged the premises to the plaintiff below to secure the sum of $13,000. To a scire facias upon this mortgage, Mrs. Lyons (her husband being then deceased), interposed the defence that under the deeds referred to she had only a separate use in the property. This defence was sustained by the Court below, and judgment was entered for the defendant upon the question of law reserved, non obstante veredicto. John S. Ferguson and McMullen (J. T. Myler with them), for defendant in error. Leaving aside the direction to convey to Mrs. Lyons, the words used are the precise, technical words which define and describe the estate which the Court below decided that Mrs. Lyons took under the deed. In themselves they clearly and unequivocally deprive the husband of his marital rights. Jamison v. Brady, 6 S. & R. 466. The object of all constructions is to ascertain It is plain that the object sought to be attained by means of these conveyances was to place the title in the wife. The deed from Lyons and wife to Hemmick imposed upon the latter two duties, viz: (1) to hold for the separate use of the wife, and (2) to convey to her in fee. Both these duties were performed. The deed from Hemmick to Mrs. Lyons was an ordinary warranty deed in fee. There is not a word in it of a separate use, or any qualification of the fee whatever. We do |