Jan. '88, 287. March 1, 1888. Barbey's Appeal. Equity Pleading-Use of plea, answer, and demurrer-Equity rule. Where a defendant demurs to the whole bill, and at the same time answers the whole bill, the answer whole. This rule of equity pleading is so well The decree is reversed at the costs of the ap. pellee; the demurrer is overruled; the bill reinceed therewith according to the practice in stated with directions to the Court below to pro overrules the demurrer-they cannot both stand to-equity. gether. This is the rule as to particular parts of the bill and with more reason does it apply when the whole bill is in question. Appeal from a decree of the Common Pleas of Berks County, sustaining a demurrer to a bill in equity filed by John Barbey against Anna Barbara Beaver to enforce specific performance of a contract for the sale of lands. Defendant demurred to the bill generally for the following reasons:— Opinion by PAXSON, J. TRUNKEY and WILLIAMS, JJ., absent. J. D. B., Jr. Common Pleas. C. P. No. 2. January 28, 1888. Dyott v. Williams. First. The said plaintiff's bill does not set forth that any power, contract, letter of attorney, Affidavit of defence-Contradicting the terms or other written authority to convey an estate in lands was ever executed by said defendant, as required by the Acts of 21 March, 1772, and 22 April, 1856. Second. That the plaintiff has not, in and by his said bill, made or stated such a case as entitles him to any relief against her as to the matters contained in said bill. At the same time she filed an answer covering the whole bill. of written instrument. Sur rule for judgment for want of sufficient affidavit of defence. Suit was brought on two notes, dated February 10, 1887, and March 17, 1887, respectively, made by defendant to order of plaintiff in the usual form, viz: "I promise to pay to the or der of Michael E. Dyott, without defalcation, value received," etc. The Court (ERMENTROUT, J.) sustained the Defendant's affidavit set forth, inter alia, that demurrer and dismissed the bill. Complainant the note of February 10, 1887, was a renewal took this appeal, assigning as error (1) the dismis- note for a larger accommodation note of defendsal of the bill; (2) the sustaining of the demur-ant's, the balance of which had been paid: and rer; (3) the finding by the Court that complainant had an adequate remedy at law. J. H. Jacobs (H. A. Zieber with him), for appellant. C. H. Schaeffer, for appellee. that on March 17, 1887, defendant applied to Dyott for $500 to protect certain stock in a corporation in which Dyott was interested from being sacrificed, and "that the defendant was not to return said loan until such time as for the interests of Mr. Dyott and said corporation the March 26, 1888. THE COURT. The demur- stock of the corporation could be placed at par rer in this case goes for nothing. It is overruled or without loss, and then the defendant was to by the answer. The defendant demurred to the repay Mr. Dyott the five hundred dollars eviwhole bill and at the same time answered the denced by the demand note of March 17, 1887. whole bill. This is not allowable under the rules. . . That at no time since the said loan of $500 of equity pleading. They cannot stand together. was received by defendant from Mr. Dyott A defendant in equity is permitted by the rules could the said stock have been placed at par or to plead or demur to the whole bill or to part of it, and he may demur to part, plead to another part, and answer as to the residue. (See Equity Rules.) But he may not plead or answer and demur also to the whole bill or to the same part of the bill. If he demurs to part and answers to the same part, both cannot stand. The demurrer in such case is overruled by the answer. With much more reason is this the case when there is ademurrer to the whole and an answer to the without loss, nor can it be so placed at the present time;" the defendant claiming as set-off the difference between the amount he paid for the stock and the amount it would bring at public sale. E. Cooper Shapley, for the rule. It has been held that where defendant's evidence only showed that the note was not to be paid according to its terms but only upon the contingency of plaintiff's failure to collect an Paper Co. v. Hincken. Equity practice-Where bill is filed with separate interrogatories the respondent must answer the interrogatories specifically, although his general answer denies the whole merits of the bill. Rule to show cause why an attachment should not issue to compel an answer to interrogatories. Plaintiffs filed a bill of discovery under the Act of June 16, 1836, with twelve specific interrogatories against defendant, and issued a sci. fa. requiring him to answer on or before a specified day. On that day defendant filed his answer to the bill, but none to the interrogatories. E. Hunn Hanson, for the rule. Under Equity Rule XXXIX. upon neglect to answer any specific interrogatories duly served, plaintiff may move for attachment to compel an swer. Act June 16, 1836, § 9, P. L. 763. THE COURT. We concur with Judge THAYER in Gude v. Ins. Co. (15 WEEKLY NOTES, 438), that when a defendant has answered, although insufficiently, he should have an opportunity to perfect his answer before being attached, and that the better practice therefore is to file exceptions first. But in the present case the interrogatories have not been answered at all, and the rule is that specific interrogatories must be answered, although the complainant's whole case is met by a general denial. any should be dead leaving issue said issue to take the parent's share, held to include children of a daughter, she being dead in testator's lifetime and before the execution of his will— Advancements-To ascertain balance due estate by a distributee whose share had been attached, stock distributed to other legatees should be taken by them at quotation from sales at confirmation of account and not at appraised value. Sur exceptions to adjudication. At the audit of the account of the executors of Auley M. Park, the following material facts were presented before the Auditing Judge (HANNA, P. J.): The testator died December 11, 1886. His will contained, inter alia, the following clauses: "I give, devise, and bequeath all my estate real, personal, and mixed to my children to be theirs absolutely and in fee, the said estate to be equally divided between them, share and share alike. If at my decease any of my children should be dead leaving no issue then the share of any so dying shall pass to the survivors; but if any should die leaving issue I desire the issue to take the share their parent would have taken." Item third. "In my books of account will be found various sums advanced by me to my children. It is my will that these sums so advanced in my lifetime shall be considered as so much of my estate, and that the sums advanced to each one shall be deducted from the share of my estate that each one would receive on the division thereof among my said children." Several children of the testator died in his lifetime without leaving issue; but one daughter, Mrs. Elmira Price, who died twenty-five or twenty-six years before her father, left seven or eight children, only two of whom now survive, namely, Charles D. and Myra P. Carruthers, who claimed to be interested in the estate as dis tributees under the will of the testator. When the account of the executors was first called for audit, the Auditing Judge directed that the accountant should sell 138 shares of Spring Garden Fire Insurance stock, which were part of the estate. (Daniel's Chancery Practice, 726.) Under Equity Rule VII., sec. 99, therefore, there has been failure to answer and this rule must be made absolute. Opinion by MITCHELL, J. H. R. H. This was not done because of the desire of five of the children to retain the stock among them. When the account was called a second time, the Auditing Judge, notwithstanding the objections of the attaching creditors of James H. Park, testator's son, distributed the stock at the value named in the inventory, and allowed accountant a commission of five per cent. on that value. The Auditing Judge found that testator's grandchildren were entitled to the share their parent would have taken, and awarded them the same, holding, that although the word "children" presupposes a class, yet Mrs. Price, being dead long before the will was written, the testator, by its subsequent provision, must have had in mind the claimants, her children, who were then in full life. The Auditing Judge also charged two hundred and ninety-five dollars as an advance- | is open to construction we are not to infer an inment made by testator in his lifetime to Mrs. tention to discriminate between the issue of the Price. He refused to award the insurance stock to the various distributees at other than its appraised value. To these findings exceptions were filed in behalf of R. W. Fitzell, et al., attaching creditors of James H. Park. Robert H. Hinckley, James W. Laws, and John O. Bowman, for exceptants. The expressions in the will are all in the future"should be dead," "so dying," "should die"and could not in any sense be made to refer to any child or children actually dead when the words were used. John D. Carlile, for the claimants. dead and the issue of the living children of the testator, but are bound to carry out what we must suppose to have been his general plan, viz., making equal distribution, per stirpes, among those standing in the same relation to him and having the same claim upon his bounty. Of course, where the legatees are strangers and not heirs or next of kin of the testator, the construction of a will may be governed by entirely different principles. It was suggested that the gift to "children," followed by the gift to "survivors" if any should die leaving no issue, was inconsistent with the idea of a gift to the children of a daughter already dead; but, as the authorities show, in December 31, 1887. THE COURT. We are cases of this sort, survivorship will be referred to entirely convinced, though my own first impres- the stirpes, and not to the first takers; and the sions were to the contrary, that the view of the share of a child dying without issue will go Auditing Judge with regard to the interpretation among the issue of a child previously dead and of the will was correct. Taken grammatically, the surviving children. (Doe v. Waineright, 5 and precisely as written, the language would ex-Term R. 427; Smith v. Osborne, 6 H. L. 376.) clude from any participation in the estate of the Whether the grandchildren are to be charged. testator the children of the daughter who had died previously. But syntax is not a safe guide in ascertaining the meaning of wills written by illiterate persons; and the well settled rule-the corollary of the maxim that the heir is not to be disinherited except by express words or necessary implication is that in cases of doubt the construction to be adopted is that which most nearly conforms to the intestate laws. Here the gift is to children, with the provision that if at the time of the testator's death any "should be dead, leaving no issue, then the share of the one so dying shall pass to the survivors, but if any should die leaving issue. . . . the issue to take the share their parent would have taken." The rule in such cases is thus expressed in Theobald on Wills, p. 338: "If the original gift is to a class, with a direction that the issue of any dying in the testator's lifetime, or before the period of distribution, should take the share their parents would have been entitled to if then living, the issue of those dead at the date of the will will be admitted, as the direction amounts to an independent gift, the word 'share' being satisfied by a stirpetal distribution. (Loring v. Thomas, 1 Dr. & S. 497; Chapman's Will, 32 B. 382; Adams v. Adams, L. R. 14 Eq. 246.) In these cases it is not the share of the parent' or the share the parents are entitled to,' which is given to the issue, but the share the parents would have been entitled to." (See, also, In re Potter's Trust, L. R. 8 Eq. 52; Outcalt v. Outcalt, 15 Stewart, N. J. 500; Giles v. Giles, 8 Sim. 360.) This doctrine is fully supported by our own case of Long v. Labor (8 Barr, 229), and as was said by Judge GIBSON, as the question with advancements made to their father as well as those to their mother, is a question of intention which we cannot determine upon the evidence now before us. The family book, exhibited at the argument, contains no entries either against the mother or father; but the will refers not to this book only but to the testator's "books of account;" and if, as asserted, the charges against the daughter before her marriage were continued against her husband after marriage, an intention to treat all as advancements to her might be indicated. (See Watts v. Shoenberger, 15 Legal Intell. 131; Wagner's Appeal, 2 Wright, 122; Weyland v. Weyland, 2 Atk. 635. See, also, King's Estate, 6 Whart. 370.) The burden of proof is, of course, upon the party alleging the advancement; and if the evidence warrants it, application may be made to the Auditing Judge within ten days after the filing of this opinion, for a rehearing upon this point. For the purpose of ascertaining the precise balance due the estate by the son, whose share has been attached, the stock distributed to the other legatees should be taken at its value, as shown by actual sales in the market at the time of the final confirmation of the account, and the balance for distribution should be increased by all income accruing since the account was filed. With this modification, and subject to the right to apply for rehearing on the question of advancement, the exceptions, including that relating to the allowance of commissions, are dismissed, and the adjudication confirmed. Opinion by Penrose, J. W. L. S. WEEKLY NOTES OF CASES. VOL. XXI.] FRIDAY, APRIL 6, 1888. Supreme Court. Jan. '87, 12. The bill in equity filed by Charles Streater against A. Ricketts, and the answers thereto, were referred to an Examiner and Master (L. H. Bennett, Esq.), who found the following facts : "The substance of the prayer of the bill in [No. 8. this case is: That the defendant be restrained from conveying an interest in certain real estate purchased by him at sheriff's sale on a judgment against the plaintiff; that said judgment and sale may be declared void; that defendant be ordered April 15, 1887. to convey to plaintiff the interest acquired by said sale, and also to account for rents and profits of said real estate as well as for certain personal property claimed by the plaintiff. Ricketts's Appeal. Fraud, actual and constructive-Equity pleading and practice- Statute of Limitations, when pleadable-Act of April 22, 1856, § 6-Purchase of trust property by trustee at a sheriff's sale brought about by his own procurement, when void. A person standing in a fiduciary relation to another may not become the purchaser of the latter's interest in land for a price less than its value at a sheriff's sale brought about by his own procurement. "The facts charged in the bill in support of this prayer may be summarized thus: That plaintiff, as devisee and legatee of his grandfather, Charles Streater, deceased, whose will was probated in 1863, became entitled to an undivided one-fourth interest in said land and personal property (the latter consisting, inter alia, of Bank and Water Company stock), the same having by the terms of said will been devised to the Rev. George D. Miles and his heirs and assigns R. standing in a fiduciary relation to S. under cer- in trust, to receive and collect the rents, issues, tain provisions of a will, became accommodation in- and profits thereof, and to pay over the same dorser for S. and M. upon their promissory note. The yearly to William Streater, the plaintiff's father, note not having been paid by the makers at maturity, for life, and after his death to the plaintiff for R. paid it, and arranged with the holders to bring suit and obtain judgment against S. and M. Judgment was so obtained against S. alone for default of appearance, under which his equitable interest in certain real estate belonging to the trust was sold and purchased by R. for a sum less than its real value. Notice was given to S. of the sale, which took place in 1870. In 1883 a bill was filed by S. against R. charging actual fraud in procuring the sale, and praying the sale be declared void, the reconveyance of the property, and an account. The charges of actual fraud were not proved by the testimony: Held, that although the allegations of actual fraud were not sustained by the proof, and the defendant's agency in bringing about the sale was not precisely as described in the bill, a case of constructive fraud was proved which called for the intervention of a Court of Equity. Defendant having answered plaintiff's bill, upon the argument on exceptions to the Master's report, moved to amend the answer so as to interpose the plea of the Statute of Limitations, which motion was refused: Held, that the refusal was a matter resting in the sound discretion of the Court, and that their discretion was properly exercised in refusing the motion. Where property is settled upon a trustee to hold in trust for one person for life and the remainder over for some other person or persons, it is the duty of the trustee to consult and protect the interest of both the tenant for life and the remainderman. life, etc. That in 1864 the defendant succeeded the said Miles as trustee under said will and has resided on the land in question since 1867. That in "That in 1869 an action was brought in the Court of Common Pleas of this county, in the name of Brown & Gray (but really for the defendant) against the plaintiff and one Daniel McDaniels, on an alleged note which the plaintiff never signed, and which was not stamped; that in January, 1870, judgment was taken for default of appearance, a writ of fi. fa. issued thereon and the real estate in question condemned. June following, and without notice to plaintiff, a writ of vend. ex. issued, and on August 20th a sale was made to defendant for a nominal sum, and a sheriff's deed given accordingly. That said William Streater died in 1874, and that during all the proceedings in the Common Pleas aforesaid, the plaintiff was a minor and had no one to look after his interests except the present defendant, his trustee; and that he, the plaintiff, never heard of said note, or had notice of any of the proceedings thereon until January, 1883, when informed thereof by his counsel. "The answer is in substance, in so far as it does not deny, or admits the truth of, the charges A failure to sustain positive averments of fraud in a in the bill, as follows: That the suit and judg bill, does not entitle the defendant to a dismissal of the bill upon that ground alone. Appeal of A. Ricketts from the decree of the Common Pleas of Luzerne County, granting an injunction, etc. ment in the Common Pleas were in fact as well as name for the benefit of Brown & Gray. That said suit was brought by them as the holders of a note duly stamped and given by the plaintiff and said McDaniels to one John Rainow for a pair of mules and harness purchased by them of said | Mr. Ricketts, the defendant, as a family resiRainow. That defendant indorsed said note at the dence. In 1870 the property was worth from special request of the plaintiff, and as the means of $15,000 to $17,000, and its rental value since enabling him to purchase said mules and harness then has been from $300 to $350 per annum. and go into business-the plaintiff at the same The personal estate referred to in the will of time appealing to the defendant as the only one Charles Streater, Sr., consisted, in part at least, to whom he could go for help in the matter, and of some $1800 cash in Wyoming National Bank, promising to pay the note when due, and referring Wilkes-Barre, twenty shares of stock in said bank, the defendant for the latter's protection in case at the par value of $50 per share, and two shares of necessity to his, the plaintiff's prospective in- of stock in the Wilkes-Barre Water Company, at terests under the Streater will. That said note par value of $50 each. The money was drawn was not paid at maturity, but protested for non-out of the bank in the years 1864 and 1865 (it payment. That Brown & Gray demanding pay- does not appear by whom), and in September, ment of the defendant, he suggested that, as he 1865, ten shares of the bank stock and one share was only an indorser, they should sue the plaintiff of the water company stock were transferred on and McDaniels-sell plaintiff's interest in the the books of those institutions respectively to land-and if the price therefor should not pay Agib Ricketts, the defendant in trust for William the debt the defendant would then pay the balance Streater, and ever since then they have stood in and take an assignment of the judgment. That that name, Mr. Ricketts drawing the dividends judgment was recovered and plaintiff's interest from time to time as they have been declared, the in the land sold, the defendant becoming the dividends thus drawn by him amounting to some purchaser at a bid higher than any one else would $815 in the case of the bank stock, and $162.45 offer, and for the purpose solely of relieving him-in the case of the water company stock. self in part from his liability on the note. That thereupon the defendant paid the judgment and took an assignment of it and settled his bid with the sheriff. That due and legal notice was given to the plaintiff of the application to the Court for the order giving leave to issue the vend. ex. That defendant did not see the plaintiff from that time until 1878, when getting into difficulty he came to the defendant and received assistance from the latter by the advance of money which he prom-counting of the defendant, except that in Septemised, but failed to repay, the defendant never having seen him since then. "The answer also sets forth that defendant is ignorant or rather not informed as to the plaintiff's age at the time of the proceedings in the Common Pleas." He also found that Charles Streater, grandfather of the plaintiff, died about October 15, 1863, and by his will devised the rest and residue of his estate, including one-half of a certain lot in Wilkes-Barre, with dwelling-house thereon, to his son-in-law, Rev. George D. Miles, in trust, to receive and pay over the income to William Streater, his son, during his life, "and from and after the decease of my said son, then upon further trust," to receive and pay over the income to his grandchildren, Sarah P. Streater and Charles Streater, the plaintiffs, during their lives, with cross-remainders, etc. William Streater died in January, 1874. The trustee, George D. Miles, resigned as trustee in 1864, and Agib Ricketts, the defendant, was appointed trustee in his place by the Orphans Court. Upon the lot above referred to is erected a twostory frame dwelling-house, frame office, barn, and other outbuildings. This property is now occupied, and has been since the year 1867, by It did not appear that the defendant ever accounted to the plaintiff for any moneys received by the former as trustee, whether as rents for the real estate in question, or dividends on the stock standing in his name as trustee, or interest or proceeds of cash coming from the estate of Charles Streater, Sr. Nor did it appear that otherwise than by the present bill, filed in January, 1883, the plaintiff has ever demanded an ac ber, 1882, the former petitioned the Orphans' Court for an account from the defendant of moneys received by him as trustee under the Streater will aforesaid, and for his removal from office. That proceeding being pending when this bill was filed, the defendant on March 9, 1883, filed his plea to the whole bill in this case, alleging therein that the proceedings in the Orphans' Court were for the same object as this suit. Said plea was referred to a Master by the Common Pleas, who reported that the Orphans' Court proceedings included only a part of the incidental relief sought in this case, to wit: An accounting, which in that Court could only be, so far as related to rents of real estate, anterior to the date of the conveyance thereof as alleged in this bill. Thereupon said plea was disallowed. The plaintiff, Charles Streater, was born December 9th, 1848. From 1861 to 1867 he was absent from Wilkes-Barre most of the time, being first in the U. S. Navy, then in the army, and finally in the merchant marine service. His father and mother not living together he practically was without a home, and his habits had become unsatisfactory to his relatives. The plaintiff and one Daniel McDaniels had conceived a plan of buying a pair of mules and |