to the whole of the fund in controversy. It therefore follows that the learned judge erred in refusing to permit her to take it out of court.

Decree reversed, at the costs of the appellee, and record remitted for further proceedings in accordance with this opinion.

EQUITABLE ASSIGNMENT, WHAT IS. Where one gives to another a power of attorney to collect money and pay his creditors, the transaction constitutes an equitable assignment: Watson v. Bagaley, 12 Pa. St. 164; 51 Aın. Dec. 595. Anything showing an intention on the one side to make a present irrevocable transfer of a fund, and from which an assent to receive it may be inferred on the other, will operate in equity as an assignment: Bank of Commerce v. Bogy, 44 Mo. 13; 100 Am. Dec. 247. Compare note to Field v. Mayor, 57 Am. Dec. 440, 441; Murray v. Buell, 76 Wis. 657; 20 Am. St. Rep. 92, and note; Patterson v. Caldwell, 124 Pa. St. 455; 10 Am. St. Rep. 598. An agreement entered into, whereby an agent, to whom a power of attorney is given to collect a claim, is to indemnify the holder of the claim against all expenses, and is himself to retain the amount collected, amounts to an assigument of such claim: Best v. Sinz, 73 Wis. 243.

COLLNER V. GREIG.

[137 PENNSYLVANIA STATE, 606.]

PARTNERSHIP - EVIDENCE, WHEN INADMISSIBLE TO SHOW PROPERTY TO BE FIRM ASSETS. As against purchasers and lien creditors dealing with the owners of land on the faith of a recorded title, and without notice that it is different from what it appears of record, parol evidence is inadmissible to show that although the land was conveyed to the grantees as individuals, yet it was held by them as partnership property. PARTNERSHIP - LAND, WHEN REGARDED AS FIRM ASSETS. - As between partners, land treated by them as partnership property, especially if purchased and paid for with partnership money, is regarded as firm assets, notwithstanding it was conveyed to the grantees as tenants in common. Whether it is partnership realty is a question of intention, which may be manifested by acts and declarations, and established by parol evidence.

PARTNERSHIP PROPERTY INTEREST ACQUIRED BY FIRST PURCHASER. A conveyance by one partner, with the consent of the others, of all his interest in the firm and its assets, to a third party, vests in the purchaser all the retiring partner's interest in the firm assets, including its real estate; and if such retiring partner afterwards conveys his interest in the firm real estate to another, without consideration, the second purchaser acquires no higher right than his grantor had, and no interest which he can enforce in ejectment against the first purchaser. EJECTMENT by W. F. Collner against G. W. Greig. The land in dispute was purchased with partnership money, and held and used as partnership property by the firm of Richey,

900

Fink bine, & Co. On February 10, 1873, Finkbine sold and
Greig purchased all Finkbine's interest in such partnership,
Finkbine knowing that the other members of the firm with
Greig were to continue the business as partners, under the
firm name of Richey, Smith, & Co., and that the interest so
purchased by Greig was to be his contribution to the capital
of the new firm. When Finkbine sold to Greig he had no
separate and specific interest in the lands in dispute. On
January 5, 1885, Finkbine and wife deeded to Collner certain
lands described in the deed, including the land in dispute.
Judgment for defendants, and plaintiff appealed.

W. L. Corbett and Don C. Corbett, for the appellant.
J. S. Ferguson and B. J. Reid, for the appellees.

Per CURIAM. We are clearly of opinion that the learned. judge below was right in holding that the plaintiff had no higher rights than Finkbine, his grantor. The court has found, and we think correctly, that the real estate in controversy was firm property, and as between the members of the firm and those who dealt with them with knowledge of the facts, it was personal estate. As to a portion of it, the deeds were in the name of the firm; as to other portions, the title was in the names of the individual members of the firm. The court below has found, however, that all of it was paid for by the firm, belonged to the firm, and was recognized and treated as firm property. It is settled law that as against purchasers and lien creditors dealing with the owners of land on the faith of a recorded title, and without notice that it is different from what it appears of record, parol evidence is inadmissible to show that although the land was conveyed to the grantees as individuals, yet it was held by them as partnership property; but as between the partners themselves, land treated by them as partnership property, especially if purchased and paid for with partnership money, is to be regarded as partnership assets, notwithstanding it was conveyed to the grantees as tenants in common; its character is largely a question of intention, which may be manifested in acts and declarations, and be established by parol testimony: Warriner v. Mitchell, 128 Pa. St. 153, and authorities there cited. The agreement of February 10, 1873, was a sale by Finkbine, one of the partners, to Greig of all the interest of the former in the firm and its assets. Greig was to take Finkbine's place and interest in the firm, and this was assented to

by the other partners. It follows that the sale passed all Finkbine's interest in the assets of the firm, including the real estate. This left nothing in Finkbine to convey to any one else. The plaintiff here was not shown to have been a bona fide purchaser. There is no evidence that he paid a dollar on account of his purchase. The court below was therefore correct in ruling, as before remarked, that he occupied no higher position than Finkbine.

Judgment affirmed.

PARTNERSHIP PROPERTY. - As to the effect of conveyances made to a firm using the firm name as the grantee, see Menage v. Burke, 43 Minn. 211; 19 Am. St. Rep. 235, and note; Frost v. Wolf, 77 Tex. 455; 19 Am. St. Rep. 761. To make land partnership property, it must have been purchased with partnership funds for partnership purposes: Alkire v. Kahle, 123 Ill. 496; 5 Am. St. Rep. 540. Compare note to McCormick's Appeal, 98 Am. Dec. 197-201; Greenwood v. Marvin, 111 N. Y. 423. Realty bought in the name of one of the partners for partnership purposes with partnership funds is held by such partner in trust for the firm: Shaw's Estate, 81 Me. 207; Roberts v. Eldred, 73 Cal. 394; Pepper v. Thomas, 85 Ky. 539.

DEEDS PAROL EVIDENCE. - As to the competency of parol evidence to vary or explain a deed, see Palmer v. Farrell, 129 Pa. St. 162; 15 Am. St. Rep. 708, and note; Mannix v. Purcell, 46 Ohio St. 102; 15 Am. St. Rep. 562, and note; Finlayson v. Finlayson, 17 Or. 347; 11 Am. St. Rep. 836, and note 844, 815. It is not competent to show by parol evidence that realty purchase by and conveyed to two persons as tenants in common was purchased as partnership property: Ridgeway's Appeal, 15 Pa. St. 177; 53 Am. Dec. 586; for intention to hold property as partnership property must appear in the deed: Hale v. Henrie, 2 Watts, 143; 27 Am. Dec. 289.

ESTATE OF CUNNINGHAM.

[137 PENNSYLVANIA STATE, 621.]

ESTATES OF DECEDENTS. ELECTION BY WIDow, allowed by statute, is a right to choose between abiding by her husband's disposition of his propperty or the right to disregard it and claim under the intestate law. These rights are inconsistent with each other, and cannot co-exist. She must choose one or the other, and cannot choose both; nor does her right of choice depend in any degree on the mention or omission of her in her husband's will, or on the quantum of benefit she receives or renounces under it.

ESTATES OF DECEDENTS-ELECTION BY WIDOW. - Where the husband's will directs a conversion of his real estate into personalty, and the wife elects to take under the intestate law, her rights are fixed irrespective of the will, and she cannot claim that the conversion operates so as to entitle her to one half of the fund absolutely; for, as to her, the fund must be regarded as real estate, and she is only entitled to a half-interest therein for life.

ESTATES OF DECEDENTS. - Widow's right of election, given by statute, is paramount to her husband's power of disposition by will, and if she elects to disregard the latter, she can claim her statutory estate in the land itself and at law it is that only to which she is entitled; but in equity, if she has acquiesced in a sale made under the will, and made claim to the proceeds, she thereby relinquishes her dower, and the land passes to the purchaser discharged of her estate in it. The fund, however, arising from the sale is still treated as realty as to her, and she is entitled to a half-interest therein for life.

ESTATES OF DECEDENTS-ELECTION BY WIDOW. - The question whether a widow filed a formal paper, electing to take against the will, voluntarily, or under stress of an order of court, is entirely immaterial to her rights. Such writing is unimportant, except as evidence.

PETITION for the distribution of the proceeds of the sale of the estate of J. B. Cunningham, who died leaving a widow, but no children. The deceased did not name nor provide for his wife in his will, but directed that his executor sell and convey his real estate, and divide the proceeds thereof pro rata to his heirs and representatives at law. After the sale of the estate as directed in the will, the widow executed and filed a formal statutory election not to take under such will, but to take her share of the estate under the intestate laws. She claimed that the will worked a complete conversion of the testator's real estate in personalty, and that such conversion inured to her benefit, and entitled her to one half of the proceeds of the sale of such real estate. The auditor to whom the case was referred granted the prayer of the widow, and awarded to her absolutely one half of the fund arising from the sale of the real estate of the testator. From this award an appeal was taken.

J. M. Peoples and D. S. Atkinson, for the appellants.
James S. Moorhead and John B. Head, for the appellee.

MITCHELL, J. Election, in the sense that applies to the present contention, means a choice between two courses of action; acquiescence by the widow in her husband's disposition of his property, or disregard of it and assertion of the rights the law gives her. There is no third or mixed course. Her legal rights, which are paramount to the husband's control, attach eo instanti that he dies, and there is no interval during which the will can slip in and work a conversion, and then stand aside to let in her intestate rights upon the converted estate. Conversion takes place by virtue of the will, but as to the widow so electing, there is no will. She must make her choice; and it is, will or no will. She has time to

consider which she shall take, but the quality of the estate as to her rights is fixed at the moment of death, and she must take one or the other as they were then. The law does not permit her to say there is a will for conversion, and no will as to her share.

This was decided in Hoover v. Landis, 76 Pa. St. 354; but the learned auditor in the present case drew a distinction based on the fact that in Hoover's will provision was made for his wife, while in Cunningham's she was not named; but such a distinction is altogether untenable. Followed to its jogical conclusion, it would result that a will which gave the widow one cent would require and support a valid election, while one which gave her nothing would not permit an election at all. The law does not sanction such an illusory distinction, and the argument which would support it is founded on wrong premises. The election which the widow is required to make is between rights, not between benefits. She has the right to abide by her husband's disposition of his property, or the right to override it and claim under the intestate law. These rights are inconsistent, and cannot co-exist. She has always the choice which she will assert, but the choice is of one or the other, not both, and does not legally depend in any degree on the mention or omission of her in the will, or on the quantum of benefits she receives or renounces under it.

Neither the act of April 8, 1833 (P. L. 249, sec. 11), nor the act of April 11, 1848 (P. L. 537, sec. 11), affects this question. The common-law rule was, that a devise or bequest to a wife was not in satisfaction or lieu of dower, unless so expressed in the will: Co. Lit. 36 b. The courts of equity relaxed this rule by holding that where the provisions of the will would otherwise be materially disarranged, an intention to make the devise in lieu of dower would be implied. This gave rise to frequent litigation as to the inconsistency of dower with the provisions of wills (see Webb v. Evans, 1 Binn. 565), and the act of 1833 (P. L., sec. 11), was meant to diminish this by establishing a fixed general rule. The act of 1848 (P. L. 537, sec. 11), simply secures the widow her choice between the provision for her in the will and her share under the intestate law of both personalty and realty.

As the widow's rights are paramount to her husband's power of disposition, she of course, at her election, could claim her statutory estate in the land itself, and in law it is this only to which she is entitled. But in equity, as she has acquiesced in