assignment. These rents accrued under a lease "It is contended on the part of the exceptants made by the assignees subsequently to the assign- that the rents issuing out of the real estate of ment. One of the properties out of which they the assignors since the assignment, cannot be accrued was a rolling or sheet mill owned by the applied to the payment of judgment creditors in assignors as tenants in common, but which they exclusion of common and preferred creditors, had occupied and used as co-partners. At this mill and to sustain this position the following authoriWolf was employed as a mill-hand or workman. ties were cited: Robb's Appeal (5 Wright, 45); All the rents thus received by the assignees were Garrett v. Dewart (7 Wright, 342); Bank v. paid out by them to judgment lien creditors of Hanson & Porter (1 WEEKLY NOTES, 613); the assignors, and credit therefor taken in their | Jacob Kohr and Wife's Assigned Estate (9 Lan. account. The details of these payments, some Bar., Nov. 24, 1877, page 96). of which were for interest on judgments, are fully set forth in the Auditor's report, infra. To this certain wage creditors of the firm excepted, alleging that the rents and profits accruing from the use of the assigned property since the assignment had been improperly applied to the judgments referred to. The Auditor's report upon these exceptions was as follows:— "Exception is taken, in the third exception, to the credit taken by the accountants of $1308.18 as a payment made to Jacob Uhrich for the use of Wm. F. Potts, Son & Co., upon the ground that the assignees had no legal right to appropriate the funds in their hands to the prejudice of common and other creditors; and in the fifth, exception is taken to the credit of $2717.71 for interest paid on judgments held against said assignors, upon substantially the same grounds. The account of the assignees shows that the sums so paid to wit: $1308.18 and $2717.71, making a total of $4025.89, were the greater part of the proceeds issuing out of the real estate of said assignors, since the assignment, in the way of rents, and profits. "The main question arising under this head is, in the opinion of your Auditor, whether the payments so made to wit, the payment of $1308.18 to W. F. Potts, Son & Co., on judgment of the Court of Common Pleas of Lebanon County, Original of January Term, 1867, No. 232, Revived to April Term, 1872, No. 279, against the assignors, and which was a lien upon the real estate of the assignors; and the payment of $2717.71 for interest paid upon judgments of said Court which were liens upon the real estate of said assignors, viz: Jacob L. Smith and Michael Naftzger, executors of the last will and testament of John Knoll, deceased, for the use of W. F. Potts, Son & Co., against the assignors, of April Term, 1873, No. 226, and the judgment of Henry M. Watts & Sons, against the assignors in the Court of Common Pleas of Lebanon County, of January Term, 1874, No. 179, now for the use of W. F. Potts, Son & Co. were in accordance with law, or whether these sums of money should have been applied pro rata to all the creditors, whether judgment or otherwise. "On the other hand it is contended that all the real estate of said assignors, out of which said rents and profits accrued since the assignment, was held by them in common, and that the rents so accrued therefore cannot be applied to partnership debts, to the prejudice of individual creditors. To sustain this position the following authorities were cited: Ebbert's Appeal (20 P. F. Smith, 79); Lefevre's Appeal (19 P. F. Smith, 122); Appeal 2d National Bank of Titusville (2 Norris, 203); Appeal of Geddes and Wife (3 Norris, 482). "Whilst the position taken by counsel of the accountants is undoubtedly a correct one, when directly involving such point of law, yet assuming that the rents accrued from property held by the assignors as tenants in common, the question still remains, can they be appropriated to liencreditors of Light & Bros., in the order of their priority on the record, or do they belong to all the creditors of the Lights (jointly and severally) pro rata. "That rents are not assets for the payment of debts is I think well settled in Pennsylvania. Did the lien-creditors have any lien on the rents as they accrued, or after they became payable? We think not. Rents do not partake of the character of real estate, and therefore cannot be bound by judgment as such; and hence your Auditor concludes that all the rents issuing out of said real estate, held in common by the assignors, belong to all the creditors fo Henry Light, John Light, and Cyrus Light pro rata. Firm property it appears there is none out of which rents issued, and hence firm creditors would be excluded in the distribution of this fund. "Your Auditor, therefore, surcharges said accountants with the sums so paid under exceptions third and fifth, the sum of $4025.89, and which sum is to be distributed among all the creditors of John Light, Henry Light, and Cyrus Light pro rata." The accountants filed exceptions to the above finding of the Auditor which the Court sustained, in the following opinion, by MCPHERSON, J.: "Upon the argument objection was made to the right of the wage creditors to interfere at all in the controversy, and this objection we believe to be well taken. We think they had no interest | with others not reached much exceeded the value claim of the wage creditors could not be paid out "It follows that, as the accountants received no money from any other sources than rents, and the sale of the land in Dauphin County, the wage creditors could not be paid from either fund, and that in consequence they have no interest in the account and no standing to file exceptions. (Smith v. Reiff, 8 Harris, 364; McCabe's Appeal, 10 Id. 427; Greene v. Tyler, 3 Wr. 365; Shaw's Appeal, 10 Id. 407; Housekeeper's Appeal, 13 Id. 141.) "Whether the real estate in Lebanon County was partnership property or held in common, it seems clear in either case that the wage creditors, as against the liens mentioned, were not entitled to the rents and profits which accrued, as did all of them, after January, 1875. The recent case of Jones's Appeal (30 Pitts. Leg. Jour., May 9, 1883; 6 Out. 285) seems to be decisive of this point. There the real estate of a firm was partnership property and was assigned for the benefit of creditors. A mill upon the land was burned and its machinery so injured by the fire as to be sold for old iron. A crop of grass also was grown upon the land after the assignment, and the wage creditors claimed the proceeds of both crop and machinery. They were, however, awarded to lien creditors, and the Supreme Court expressly approves this part of the decree, although the opinion is mainly concerned about other questions. The principle of this decision seems to us to cover the case of rents. If the machinery which in that case helped to give value to the land, and the grass which grew upon it after the claims for wages had accrued, partook of its character to such an extent as, equitably at least, to belong to the lien creditors The Auditor's report is set aside, the excepafter severance, it would seem plain that the tions to the account dismissed, and the account rents and farm profits here, which the land pro-as filed is confirmed absolutely.” duced and which wholly accrued after these claims for wages had become due, ought to follow a similar course. The income or product of an assigned estate is held by the assignee in trust for all the creditors of the assignor according to their legal and equitable rights (Bausman's Appeal 9 N. 180); and as all the judgments referred to were entered more than six months before the assignment was made, and therefore before the labor was performed, it is hard to see why the substantial owners of the property have not at least an equitable right to the whole of what it produces. Burkholder's Appeal (13 N. 524) regards the lien creditors of an assignor in the same light, viz: as substantial owners of his real estate, and divides among them the interest on deferred payments, even after the land has been sold by order of Court. "Moreover, the exceptants presented their claim to the Auditor who distributed the proceeds of the real estate, sold under execution, and were refused participation on the express ground that the liens to which the money was awarded existed long prior to the time when the wages were earned, a finding of fact which was not disputed and which was certainly decisive against their claim upon that fund. The liens thus referred to by the Auditor are the same now in question, and Thomas M. Wolf, a wage creditor, thereupon. took this appeal, assigning for error the decree of the Court. Josiah Funck (John Benson and P. H. Reinhard with him), for the appellant. The rents received by the assignees from the assigned real estate were improperly appropriated to judgments against the assignors, obtained prior to the assignment, and to interest accrued thereon. Judgments are bare liens, and the holders can exercise no dominion over the land bound by them. They must first be satisfied out of the personal property of the debtor, if he has any. The plaintiff in the judgment is not interested in the land, as land, but only in his lien. He has neither jus in re nor ad rem, as regards the defendants' property. He has a lien, and the law gives a right to satisfaction out of the property, and that is all; and a judgment creditor for balance of purchase-money due has no insurable interest in the real estate sold. Grevemeyer v. The Southern Mutual Fire Ins. Co., 12 P. F. Smith, 340, and the authorities cited in the opinion. Rents accruing subsequently to the sheriff's sale and before acknowledgment of sheriff's deed, belong to the defendant in the suit. Garrett v. Dewart, 7 Wr. 342. Robb's Appeal, 5 Wr. 46. In Rents are not assets for the payment of the [and therefore no standing to file exceptions. debts of a decedent; if the administrator re-case of a sale of the land it is very clear his ceives rent from the real estate of his decedent claim could not be allowed to the prejudice of a he is but a trustee for the widow and heirs; and prior lien creditor. We think the mere rents of a mortgagee cannot enforce the payment of inte- the land in the hands of the assignees not being rest on his mortgage from the rents collected. the product of business managed and carried on by them, but solely the product of the land itself, should be applied on those prior liens which would be entitled to the proceeds of the lands if sold. This we understand to be the ground on which the Court ruled the case. The conclusion is sustained for reasons expressed in Bausman's Appeal (9 Norris, 180), and Burkholder's Appeal (13 Id. 524). Decree affirmed, and appeal dismissed at the costs of the appellant. PER CURIAM. Nothing can be more erroneous than the conclusion of the Court below that the judgment lien creditors are the substantial owners of the real estate, and therefore entitled to these rents. Jones's Appeal, upon which the Judge below relied to sustain him in his ruling, decides no such question. It was there held that grass and old iron, the refuse of a mill that had burned down during the pendency of the trust, belonged to the judgment creditors, and that the proceeds thereof could not be applied to the payment of wage-claimants. This doctrine is entirely sound. It seems to have escaped the notice of the Court that both partook of the character of real estate, and as the labor claims accrued after the judgments had attached no wage claimants could be Jan. '84, 100. paid out of the proceeds of that real estate, because expressly forbidden by the statute under which they claimed their preference. Under the Act of April 9, 1872, and the general policy of the law of preferring labor claimants the appellant was entitled to be paid in full out of the rents. Reed's Appeal, 6 Harris, 237. But if not entitled as a preferred creditor, the rents, under the express trust in the assignment, should be distributed pro rata among all creditors, including the appellant. Wm. Derr (Grant Weidman with him), the appellees. for The real estate was held and owned by the assignors as tenants in common, and hence the proceeds, if sold, would go to the individual lien creditors. Lefevre's Appeal, 19 Smith, 122. So, also, the fund earned by said real estate after the assignment, in the shape of rent must be distributed in the same way. Bausman and Heins's Appeal, 9 Norris, 180. These wage creditors, having no interest in the real estate, had no right to file exceptions to the account. McCabe's Appeal, 10 Harris, 427. May 19, 1884. THE COURT. This is not a case of distribution. The contention arises on exceptions filed to the account of assignees under a voluntary deed of assignment for the benefit of creditors. The appellant sought to object to the account on the alleged ground that he was a preferred creditor of the assignor. The Court found that his claim was not sustained. That he had no interest in the account to which he excepted, Ivins's Appeal. W. M. S., Jr. March 31, 1884. Will-Construction of-Heirs and next of kin— A testator in a will, which was distinguished throughout by strict legal accuracy in the use of terms, devised certain real estate in fee and bequeathed certain personalty abso lutely to trustees in trust for his daughters for life, with a and child and children or issue of such, then" the testator Held, that the testator, having in apt and proper terms devised and bequeathed property to the "heirs and next of kin" of a daughter dying without children or issue, and without exercising her power of appointment, could not be deemed to have meant by those terms distributees under the intestate law, and that therefore the husband of a daughter so dying had no interest in such property. Appeal of W. H. Ivins from a decree of the Orphans' Court of Philadelphia County upon the account of the Fidelity Insurance, Trust, and Safe Deposit Company, trustees under the will of Charles Abbey, deceased. The facts of the case as they appeared on the audit were as follows: A codicil to the will of the testator provided as follows:— "Third.-I direct the residue of my estate given and devised to my said daughters, Catharine, Martha, and Harriet, to be given to and vested in The Fidelity Insurfee simple; in trust to keep the real estate in repair and ance, Trust and Safe Deposit Company, absolutely and rented, and the personal estate securely invested, and to pay the net income derived therefrom semi-annually in equal parts to my said daughters for their sole and sepa In this rate use respectively; and to hold each of the one-third Wills, by Randolph & Talcott, 667.) parts of the principal of this trust for the uses and pur- State, especially as to personalty, the husband poses declared in the last will of each of my said daugh- takes as his wife's distributee under the intestate ters respectively, and in default of such will for the use and benefit of the child or children of each of my said law. daughters respectively, and the issue of any child or children then deceased, who shall take their parents' share, and in default of such will and child or children or issue of such, then the principal to go to the heirs and next of kin of the daughter so dying, as provided by the intestate law of Pennsylvania." Patterson v. Hawthorn, supra. Letchworth's Appeal, 6 Casey, 175. The words heirs and next of kin are always to One of the daughters having died intestate be taken in their legal and technical sense unless and without issue, leaving a husband her surviv-a contrary intent is plainly made to appear by ing, the trustee filed an account, and the said the will. And no case has been decided where husband claimed at the audit to receive his wife's the word heirs has been taken to be a word of succession merely, except where it was applied share of the personalty absolutely, and her share of the realty for life. His claim was allowed by to personal estate alone. PENROSE, J., the Auditing Judge. Exceptions were filed by the brothers and sisters of his deceased wife, and were sustained by the Court (see report of the case, Abbey's Estate, 13 WEEKLY NOTES, 535). A decree was entered excluding the husband from participation in the wife's estate, whereupon he took this appeal, assigning for error the decree of the Court. George M. Dallas (William G. Foulke and George L. Crawford with him), for appellant. It is the policy of the law that, whenever possible, technical words descriptive of persons ultimately to take a gift, when denoting the same persons who, under the law, would succeed to the same property by succession from the first taker, must be construed as words of succession, and, therefore, as descriptive merely of the nature and quantity of the interest of him, or of those, named as first to take; and that where there is no antecedent gift, a gift to persons answering the description of those who would take in succession from a certain ancestor must be construed as a gift to all of those who would take in succession, if the property were such ancestor's, in case of his intestacy. Womrath v. McCormick, 1 Smith, 504. The thought runs all through the will and codicil, as has been already pointed out, that real estate is being disposed of and personal used which apply to both, severally and disestate is being disposed of; and apt words are tinctively. By so reading the words effect is properly given to all the words used. And in the construction of wills it is a cardinal rule that effect shall, if possible, be given to all the words used. of A case almost on all fours with the present is A husband is not within the designation kin." Storer z. Wheatley's Ex., 1 Barr, 506. "next And the distinction is carefully kept up in the Act of April 8, 1833, and supplements, Brightly's We are of April 28, 1884. THE COURT. opinion that the learned Court below has pronounced the true construction of the testator's will in the final decree. testamentary provision was an aggregate of perThe subject of the sonal and real estate. The objects of the testator's bounty were his heirs and next of kin. By the will he had given all the residue of his estate Patterson's Ex. v. Hawthorn's Ex., 12 S. & R. 112. to his three daughters absolutely and in fee King v. King, 1 W. & S. 205. Reed v. Buckley, 5 W. & S. 519. The disputed clause of the codicil directs" the principal to go." The words "to go" are equivalent to descend," which indicates succession rather than direct gift. Gibbon's Ex. v. Fairlamb, supra. Haldeman v. Haldeman, 4 Wright, 35. The exclusion of the husband even in England and under the peculiarity of its statutes, has been deprecated as unreasonable. (Note 2, Jarman on simple. By the codicil he made a radical change, and gave the residue to a trustee, in trust to keep the real estate in repair and rented, and the personal estate securely invested, and to pay the net income of the whole to the daughters, and to hold the principal in one-third parts in trust for the uses and purposes declared by the last wills of his daughters respectively, and in default of wills, for the use of child or children of the daughters; "in default of such will and child and children or issue of such, then the principal to go to the heirs and next of kin of the daughters so dying as provided by the intestate law of Pennsylvania." In this provision there are apt words which define with technical technical words are used, and there is a subject to which they may apply the technical meaning must prevail. Thus in Clark v. Scott (17 P. F. S. 446), where a testamentary disposition was made quite similar to the one we are considering, this rule was strictly applied. On page 451, precision each of two classes of beneficiaries, to wit, heirs and next of kin. It has been so often held that where technical words are used in a will or other instrument, they must have their technical meaning, unless a contrary intent appear, that it would be a mere affectation of learning to cite the authorities. On the question SHARSWOOD, J., said: "The testator, Thomas of intent in this case, the will and codicil abound P. Ash, after devising his residuary estate, real with evidence that the intention of the testator and personal, to several persons, declared that corresponded precisely with the strict legal mean- in case of the death of either of them before ing of the words used. The distinction between him the devise or bequest should not lapse, but real and personal estate is constantly preserved, shall go to, and be taken by the heirs, executors, both in the words which refer to them descrip- or administrators of said legatees or devisees so tively, and in those which relate to their disposi- dying, in the same manner as if the same had tion. Thus, the residue being composed of been specifically devised.'" He was evidently personalty and realty, he gives and devises it, aware of the distinction between real and perabsolutely and in fee simple. He gives the sonal estate. He has used throughout his will personalty absolutely, and he devises the realty | the words legally appropriate to each. All his tion to "heirs, executors, administrators, and assigns." We may infer then that in the substituted gift for the lapsed devise the word "heirs" was used in none other than its legal technical meaning. Apart, however, from this very important assistance at arriving at the true intention of the author of the disposition, it is a canon of construction settled in many cases, that the word "heirs" shall receive its appropriate technical sense, unless there is some language or expression which shows that it was used in the broader and more popular sense." in fee simple. This is the fifth clause of the will, legacies of mere personalty are by the words and by the same species of concentrated and "give and bequeath," but when he comes to the elliptical expression, he directs in the third clause residuary clause in which he blends both his real of the codicil the same residue given and devised and personal estate, he is careful to use the words to his daughters, to be "given to, and be vested" give, devise, and bequeath," and adds a limitain" the trustee absolutely and in fee simple, in trust to repair and rent the real estate and securely invest the personal estate, for the use of his daughters. Then when he provides for the contingency which has happened, to wit, the death of a daughter without a will, children or issue, he directs that the principal shall go to the heirs and next of kin of the daughter so dying. It is impossible to doubt, from this language, that the distinction between real and personal estate was constantly in the mind of the testator, and that he intended that the part of the principal which consisted of realty should go to the heirs, and the part which consisted of personalty should go to the next of kin. We think we would be doing violence to the manifest intention of the testator if we held to any other construction. There is no occasion here to give an untechnical meaning to technical words, as was done in the cases referred to in the appellant's argument, in which the word heirs was held to have the same meaning as next of kin, or distributees, or persons entitled under the intestate law. Such a course is sometimes necessary to effectuate a testamentary result, to prevent a will from becoming practically inoperative. Thus if a testator gives personalty to a class of persons whom he names as heirs, the law in aid of his intent will consider the word as descriptive of the persons who would take as the representatives by law of the deceased person. This doctrine is illustrated in various forms and circumstances in Patterson v. Hawthorn (12 S. & R. 112); Buckley v. Reed (3 Harr. 83); Gibbons v. Fairlamb (2 Cas. 217); Eby's Appeal (3 Norr. 241), and other cases. The cases, however, do not at all conflict with those of the other class which hold that where Other illustrations of this ruling are found in Ralston v. Waln (8 Wr. 279); Porter's Appeal (9 Wr. 201); and Eby's Appeal in Wisler's Est. (14 Wr. 311). It does not seem necessary to pursue the subject further. Whether we consider the strict meaning of technical words employed, or the clear intent of the testator, as the guide in the construction of this testament, the result is the same. The husband is neither the heir nor the next of kin of his wife in the technical sense of these words, and there being other persons in being who do fill that description we must hold that they and not he are the true beneficiaries under this codicil. Decree affirmed at the cost of the appellant. PAXSON and STERRETT, JJ., absent. J. D. B. Jr. |