ty convincing us of the correctness of the auditor's report, or that the legacies to the four children named by the testator vested either on the death of the testator or on the coming of age of said children. We have no doubt but that, under the will of Jacob Bartholomew, the period at which the legacies to his four children named were 'payable' was after his wife's death.' Until it was ascertained by the death of the widow, or after her death, who was the survivors or survivor of the said four children, it could not be known to whom the estate would ultimately belong. Hence the widow, nor no one else, during all the years since the death of three of them, never claimed to have any part or portion of the principal fund set apart to them, or either of them. As said in Pleasonton's Appeal, 99 Pa. St. 362: 'It may be that, if the testator had thought of the fact of what bas occurred, -that some of his children would die leaving issue, he would have made suitable provision for them. But he has not done so, and we have no power to supply the gap for him by making another will.'

"The facts in the case are not in dispute. They show the amount for distribution, after deducting costs, to be $1,215.87;

The testator left, surviving him, Eliza Bartholomew, his widow, and the four children named in the will. His son Franklin, by a former wife, is the only one who survived the widow, who married Peter Wagner, survived him, and died in August, 1891. The other three children predeceased the widow, their mother, as follows: Margaret Rebecca died November 8, 1839, intestate, unmarried, and without issue; Mary died January 28, 1864, intestate, unmarried, and without issue; and Caroline died August 29, 1872, intestate, leaving to survive her a husband, Thomas S. Bobst, and two children, viz. James R. Bobet, and Lizzie, now intermarried with A. S. Truckenmiller. Thomas S. Bobst, husband of Caroline, died in 1877. The fund for distribution-$1,269.87-is balance of the money in vested under direction of the will, the interest accruing therefrom having been paid to the widow during her life. As sole survivor of the four children at the death of the widow, Franklin Bartholomew claimed the entire fund, and it was awarded to him. Appellant, as

lin Bartholomew, the exceptant, is the sole survivor of the four children named in the third item of the will of the testator; and under the law applicable to the case the whole fund for distribution, after payment of costs as reported by the auditor, should be distributed to him.”

C. E. Geyer and James Scarlet, for appellant. Charles G. Barkley, for appellee.

PER CURIAM. This contention involves the construction of the third item of Jacob Bartholomew's will, dated March 30, 1839, 13 days before his death. After providing, in the first item thereof, for payment of his debts and funeral expenses, and, in the second, bequeathing to his wife all the household furniture and other articles of personal property, and making provision for her until the next ensuing fall, he disposed of the residue of his personal property in the next and last item, of which the following is an exact copy: "Item 3rd then my will is that all the residue of my goods, chattels, stocks, merchandises, &c shall be sold by my Executor by making vendue in this faul and the money to be put out on Interest and my wife Eliza is to have the Interest of said money during her natural life and after my wife's death it is my will that the money be eqally divided Between my four children namely Franklin, Mary, Caroline and Margaret Rebecca share and share alike, and my will and meaning is that in case any of my said Children shall depart this life before shuch time as the part or portion of him her or them so dying shall become payable, then and in shuch case the part or portion of him, her or them so dying shall go and be equally divided among the survivors or survivor of them -share and share alike if more than one, and to be paid to such survivors or survivor at the time appointed. And lastly

claimed that part or portion to which she would be entitled, if living; and also, as administrator of Eliza Wagner, deceased, those parts or portions to which Mary and Margaret Rebecca would be entitled if living. Other facts in relation to the case are fully stated in the opinion of the court, but they do not appear to be material.

The intention of the testator, as expressed in the third item of the will, does not appear to be involved in any doubt. It is very clear that he contemplated no division of the corpus during the lifetime of his widow. It was to be invested for her benefit, and kept intact until her death. Then it was to be divided equally among his four children, if all were then living; if not, then equally among those who survived his widow, if more than one, but, if only one was then living, as sole survivor of the four at the time of distribution, he should take the whole. There is nothing in the will to indicate that he intended any interest in the corpus should vest in either of his four children prior to the death of his widow. It is after his " wife's death" that the money is to be divided, and in immediate connection there with be declares his will and meaning is that, if any of his said children shall die before the time fixed for division, then and in such case the part or portion of him, her, or them so dying shall go and be equally divided among the survivors or survivor of them, share and share alike, if more than one, and to be paid to such survivors or survivor at the time appointed. It may be that, if the testator could have anticipated what has actually happened, he would have provided for such a contingency; but he does not appear to have done so, and it is not our duty either to change the provisions of his will by any strained construction thereof or to make a new one for him. We think the learned

court was right on principle as well as authority in a warding the fund to Franklin Bartholomew. Decree afhrmed, and appeal dismissed, at costs of appellant.

FRIES v. NULL et al.

(Supreme Court of Pennsylvania. May 8, 1893.) MORTGAGES-RECORDING-PRIORITY.

Act March 18, 1775, § 1, (Purd. Dig. p. 583, pl. 94,) provides that every deed and conveyance which shall not be recorded within six months after execution shall be void against any subsequent purchaser or mortgagee unless recorded before the recording of the deed under which such subsequent purchaser or mortgagee shall claim. Held, that a mortgage actually recorded before a deed of the same premises is recorded has priority over the deed, though the deed was recorded within six months from its execution and the mortgage was not. Mitchell and Williams, JJ., dissenting.

Appeal from court of common pleas, Westmoreland county; L. W. Doty, Judge. Ejectment by Jesse Fries against Francis M. Null and Hester Null. Plaintiff had judgment, and defendants appeal. Reversed.

To re

Francis M. Null, one of the defendants, became the owner in severalty, on March 28, 1871, of a tract of land in East Huntingdon township, Westmoreland county. While still seised, on April 2, 1875, he delivered a mortgage of 81 acres of this tract, reserving the coal and mining rights, to Hester Null, his mother, which was not recorded until October 4, 1875, six months and two days after its delivery. On April 6, 1875, Null executed and delivered to Jesse Fries, the plaintiff, a deed conveying his entire tract, containing 190 acres, and including the part four days previously mortgaged to his mother. Fries recorded his deed within six months, to wit, on October 5, 1875, and one day after the recording of Hester Null's mortgage. cover possession of the lands purchased, Jesse Fries brought his action of ejectment against Francis M. Null, and on June 27, 1878, recovered against him a conditional verdict and judgment. In the mean time Hester Null had proceeded upon her mortgage to judgment, execution, and sale, and the mortgaged premises,-81 acres,except the coal and mining rights, were conveyed to her by the sheriff by deed dated May 6, 1878, acknowledged in open court May 25, 1878, a month and more prior to the recovery by Fries. Fries afterwards, to No. 319, May term, 1880, brought a second action of ejectment for the same tract of 190 acres against Joseph Null, Hester Null, William M. Null, and W. J. Shawley, which resulted, December 21, 1883, in a “verdict for plaintiff for the land described in the writ, with 64 cents damages, except so much thereof as is conveyed and described in a deed dated May 6, 1878, by James Borlin, sheriff, to Hester Null; and as to the premises described in said deed the jury find for the defendant Hester Null." The judgment in this case was reviewed by the supreme court, and affirmed. Null v. Fries, 110 Pa. St. 521, 1 Atl. Rep. 551.

Fries afterwards obtained possession of all the land except the 81 acres sold to

Hester Null. On June 2, 1886, the plaintiff, Jesse Fries, sued out his writ to No. 124, August term, 1886, sur judgment at No. 529, May term, 1877, ejectment, commanding the sheriff to make known to the defendant Francis M. Null and to the terre tenants of the lands to be and appear, etc., to show, if anything for defense they know or have to say, why the said judg. ment should not be revived, and the lien continued, and why the plaintiff ought not to have execution by habere facias, etc. On September 18, 1886, Hester Null presented her petition to the court, setting forth her information that a writ had been issued to revive the original judgment in ejectment at No. 529, May term, 1877, her interest in the lands, and praying to be admitted to defend at the sci. fa., if the same should be necessary, to the extent of the 81 acres of the land claimed by her. After full hearing before Hon. Harry White, of fortieth judicial district, presiding, on January 4, 1890, Hester Null was allowed “to intervene to defend on the record her possession to the extent of 81 acres of the land originally recovered in this case, and on the trial to show she was not in possession under the defendant, F. M. Null, so as to be subject to an habere facias on the judgment. At the trial, March 5, 1891, the plaintiff offered his record title; among other deeds, that of F. M. Null to Jesse Fries, dated April 6, 1875, and recorded October 5, 1875, and rested. The defendant, in reply, offered the mortgage of F. M. Null to Hester Null, dated April 2, 1875, recorded October 4, 1875; scire facias and judgment thereon, followed by levari facias, sale, and sheriff's d'ed for the 81 acres described in the mortgage. The defendants further attempted to show that at the time Jesse Fries accepted the conveyance from F. M. Null he had actual notice of the prior mortgage to Hester Null. The fact of such notice was the only question submitted by the court to the jury, who were directed to find for the plaintiff, unless the defendant established by clear and satisfactory evidence that Fries had actual notice of the mortgage at the time he accepted the deed, ignoring what defendants conceived to be conclusive, the fact that the mortgage was first on the record.

Specifications of Error.

"(1) The court erred in refusing to affirm, without qualification, the defendants' fourth point; the point submitted being as follows: (4) That the title taken by Mrs. Null by virtue of said sheriff's sale as to said 81 acres relates back to and commences with the date of said mortgage, to wit, 2d April, 1875, and which was prior to the deed taken by Fries, and was and is a better title than that of Fries.' The answer of the court to said point being as follows: Answer. This point is affirmed if you find that Fries had notice of the mortgage at the time of the conveyance to him on 6th April, 1875.'

(2) The court erred in affirming the fourth point submitted by the plaintiff, the point submitted being as follows: ‘(4) In order to charge the plaintiff with knowl

edge of the existence of the mortgage given by F. M. Null to Hester Null, the proof of the notice of the existence of such mortgage must be clear, satisfactory, precise, and indubitable. Without such clear, satisfactory, precise, and indubitable proof of notice, the allegation of notice is insufficient, and you should find for the plaintiff.' And the answer of the court as follows: Answer. The proof of notice of the existence of this mortgage, as we have already instructed, must be by clear and satisfactory evidence. The burden is upon the defendants to establish such notice. If the evidence be not clear and satisfac. tory, your verdict should be for the plaintiff.'

"(3) The court erred in charging the jury as follows: The principal contention seems to be concerning the 81 acres claimed by Hester Null, the defendant in the present suit. She presented a petition to the court asking for leave to intervene, alleging that the original judgment was not a lien on the tract she claimed, this tract containing about 81 acres, and that she held by a title prior to that under which the plaintiff claimed and held that same tract of land. In support of her title we are shown a mortgage, which was given by F. M. Null, Jr., to Hester Null, wife of Joseph Null, and which bears date the 2 of April, 1875, acknowledged the same day, and recorded upon the 4th of October, 1875; also the record of the court of common pleas, showing the sci. fa. upon this mortgage, and levari facias or writ of execution following the judgment upon the fi. fa., and a deed from the sheriff of the county to Mrs. Hester Null, acknowledged on the 25th of May, 1878, and dated the 6th of May, 1878. This mortgage, you will observe, was dated on the 2d of April, 1875, but was not recorded until the 4th October, 1875, or more than six months thereafter; while the deed under which the plaintiff claims bears date the 6th of April, 1875, and was recorded on the 5th of October, or one day less than six months after iis execution, acknowledgment, and delivery. Under the recording acts the plaintiff had six months in which to record his deed, and, unless he had notice or knowledge of the mortgage of F. M. Null to Hester Null, he would take the whole tract embraced in the conveyance unincumbered by the lien of this mortgage. The defendants, however, allege that the plaintiff had notice of this unrecorded mortgage, and the burden is on them to show by clear and satisfactory evidence the fact of such knowledge. The record as it stands, in the absence of testimony, is sufficient to vest the title to the S1 acres in the plaintiff. His deed was recorded within the time fixed by law. It is incumbent, therefore, upon the defendants, claiming under the mortgage, to show by clear and satisfactory evidence that the plaintiff had notice of the existence of the mortgage. If he had such notice, he cannot now complain; if the evidence fails to establish such notice, your verdict ought to be for the plaintiff, at least to the extent of the 81 acres.'

“(4) The court erred in charging the jury as follows: 'And now, out of all the

evidence and out of all these matters, there comes a single question of fact to be submitted to you. So after all, the duty you have to perform is a plain one,-one of great importance in this case,-and this question is, had Jesse Fries, the plaintiff, knowledge on the 6th of April, 1875, when he took the deed, and before its delivery, of the existence of the mortgage to Hettie Null on the 81 acres? If she had such knowledge, the defendant has a better title to the 81 acres, and your verdict should be for Hester Null. If he had not such knowledge, he would take the land free from incumbrance, and to this extent your verdict would be for the plaintiff. Whether or not he had such knowledge is a question exclusively for you to determine under the evidence. The defendants allege it, and they must prove it by clear and satisfactory evidence.'

Williams & Griffith, for appellants. Laird & Keenan and Marchand & Gaither, for appellee.

GREEN, J. It certainly must be conceded, under all the decisions, that if both the mortgage and the deed were unrecorded within six months from the date of their execution, the mortgage of Hester Null would have preference over the deed of Fries, although at the time that Fries took his deed the mortgage was not recorded, and he had no notice of it. But it is contended for the appellee that because Fries had six months within which to record his deed by the terms of the act of 1775, and he actually did record it one day before the six months expired, he has priority over the mortgage, although the mortgage was recorded one day before his deed was placed on record. We are not referred by the counsel for the appellee to any authority for such a doctrine, and after a very careful search among our reported cases the writer has not been able to discover any decision of this court to that effect. It is argued for the appellee that both parties must be in default for the whole period of six months before the language of the statute becomes applicable in favor of the priority of the mortgage. Why? The words of the statute do not say so. This court has never so decided. Apparently the words of the act mean precisely the opposite of this contention. They are as follows: Act of March 18, 1775, § 1, (Purd. Dig. p. 583, pl. 94:) “And every such deed and conveyance that shall at any time after the publication hereof be made and executed, and which shall not be proved and recorded as aforesaid, [i. e., within six months after execution,] shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance be recorded, as aforesaid, before the proving and recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim. That is to say, the mortgage of Hester Null, having been made and delivered on April 2, 1875, not having been recorded until October 4, 1875, being two days more than six months after its execution, would be postponed to the deed of

the same premises made and delivered to Jesse Fries, on April 6, 1875, and recorded on October 5, 1875, one day before the expiration of six months from its execution, unless the said mortgage was recorded before the subsequent deed was recorded. There is but one reading of this language, The penalty of postponement is not incurred if (1) either the mortgage is recorded at any time within six months from its execution, or (2) if it is actually recorded before the deed is recorded. Clearly Hester Null had just as good a right to wait six months before recording her mortgage as Jesse Fries had to wait that time before recording his deed. Of course, she incurred a penalty by delay, for, if Jesse Fries had recorded his deed on the day it was made, April 6, 1875, or on any other day before October 4, 1875, she had no lien, by virtue of her mortgage, as against his deed. And Jesse Fries had the right to avoid the lien of the mortgage, although it was made before his deed, if at any time from its date and before October 4th he had recorded his deed. Hester Null, by her delay, imperiled the lieu of her mortgage, and Jesse Fries, by his delay, failed to secure an advantage over the prior incumbrance which he might have had if he had been prompt in recording his deed. It happens that by the very words of the statute the Null mortgage was still entitled to its preference if it was recorded before the Fries deed was recorded. There is no matter of sentiment or good morals about the transaction. It is simply a question of written law, founded doubtless upon just considerations of public policy. It is sufficient that the law is so written. It does not say that its words are to apply only when both parties have been derelict for the whole period of six months, and if we undertake to say so we must put words in the statute which are not there now, and this we cannot do.

The contention that we ought to adopt this construction fails to consider that the six-months privilege of delay in the recording is not given to acquire rights as against precedent conveyances, but to protect the holders of unrecorded conveyances against subsequent conveyances of the same premises by the same grantor. For that purpose an immediate recording is not requisite. If that duty is performed within six months, the title of the holder is good against a subsequent purchaser for value and without notice. But the holding of that privilege does not confer upon such a grantee any right as against such a previous grantee, except such right as is given by the express words of the act. That right is that, if he will record his conveyance, he will obtain a preference, but not otherwise. Bearing in mind that if at any time within the six months Hester Null had recorded her mortgage, though after Jesse Fries had taken his title, she would undoubtedly be entitled to her preference if Jesse Fries had not in the mean time recorded his deed, it is difficult, if not impossible, to see why, if she is first on the record, she should not have that preference, although he records within six morths. What is the necessity for his being in default beyond the six months, in

99

order that she may have the preference which the act gives her if she is first on the record? If both had exceeded their six months, it is conceded she would have the preference by virtue of her prior record. Why is not her prior record efficacious if he is within the six months? It would not be efficacious if the act said so, but only for that reason, and the act does not say so. If we recur to the authorities, they are entirely in accord with this view. Thus, in Souder v. Morrow, 33 Pa. St. 83, it is true that both parties were in default beyond the six months, but the decision of this court was not put upon that consideration. Lowrie, C. J., says in the opinion: "The act of 1775 requires the recording of both deeds and mortgages, and gives the very law of this case in fixing the penalty of disobedience. It says they shall be void against subsequent purchasers and mortgagees if not recorded in proper time and place, unless recorded before the subsequent ones. Here the law was violated in relation to both the prior and subsequent ones; but the prior one was first recorded, and therefore the condition on which it was to be void did not arise. As is seen, the decision gave preference to the first conveyance, not because both were in default more than six months, but because it was first recorded. The remainder of the opinion confirms this view. The opinion, proceeding, says: "Purchasers ought to know that they have only a conditional title, dependent on the honesty of their vendors, so long as they neglect to record their deeds. They are not safe merely because of the neglect of a former purchaser to record within six months, and of there being no subsequent deed to oppose them; but because, among several deceived purchasers, they are the first to obey the law;" thus repeating the reason before stated, that it is the first recording that gives the preference, and gives it without any distinction as to a joint dereliction of the same kind by both. The same remark is true of the decision in the case of Manufacturing Co. v. Neel, 54 Pa. St. 9. We said, (Thompson, J.:) "The plain teaching of the act is that, in order to be first in right against a prior purchaser's deed, the subsequent purchaser must be first in time on the record. We have many decisions to this effect in our books;" citing a number of cases, and among them Souder v. Mor row, above considered. Nothing was said about both parties being in the same dereliction, either as a fact or as a reason for the decision. In Hetherington v. Clark, 30 Pa. St. 393, Woodward, J., stated the rule thus: "An unrecorded deed is null and void as against a bona fide purchaser of the same land for a valuable consideration, and nothing can save it but placing it on record before the second purchaser gets bis deed there." Here again priority of record is the only saving fact required to preserve the efficacy of the prior deed against the subsequent purchaser's title. Other authorities are to the same effect.

As a matter of course, under the act of 1820 the Null mortgage was no lien except from the date of its record, but, as it was recorded before the deed of Fries was re