widow and five minor children. At his death he was the owner of a considerable estate, both in improved and timber lands. On the 27th of August, 1884, John G. Uzzle was appointed guardian of Martha A., this appellant. She was then about 16 years of age. Her estate consisted of some money, and the undivided nith interest in the land of her father, subject, under the intestate laws, to the interest of her mother. The timber land consisted of two tracts, warranted in names of Paul Cox and Ann Stewart, of which the intestate | was the sole owner. He was also the owner of an undivided one-half interest in another tract, known as the "Holt and Mulbolland Tract." On this last tract, Holt, the cotenant of Mulholland, commenced to cut and market the timber soon after the death of Mulholland, and continued operations until the timber was all taken off. During this time the timber on the Cox and Stewart tracts had been considerably damaged by storm and fire, and It obviously was for the best interests of the estate that it should also be immediately marketed; otherwise, the inevitable result to all interested would be loss. So this timber was cut and sold. It is not disputed the guardian received the full value of his ward's share of this timber. He paid over to her mother one third of this share,-$679.72,-assuming that it belonged to the mother, as personalty of her deceased husband. This was a mistake. Admit the necessity for cutting the tim ber, which we do not doubt. Still, it was clearly real estate, and as such descended to the children, under the intestate laws. It needs no citation of authority to sustain the auditor's conclusion that it was realty, not personalty. The owner, Rudolph Mulholland, might, by a contract in his lifetime, have converted it into person alty; or, by a will, he might have directed its conversion; or the law might have done so for payment of his debts; but here, the moment after his death, it descended to his children as real estate. Neither the elements, the courts, nor the act of man, could remove from it the impress given it by the settled law of this commonwealth. It might be turned into money, but for purposes of descent and distribution it remained real estate. The learned judge of the orphans' court asks: "When the storm and fire had swept this timber, would not the court, upon proper petition by the guardians, have authorized them to convert it into money, for the benefit of the entire estate?" We answer, certainly such action would have been authorized by the law, and would, under the evidence here, have been entirely proper. But this would have in no way affected the ward's right to the money; her estate in the land, to the extent of the value of the timber, being turned into money, would have continued hers, just as before, except in one particular. It would have become productive, and her mother would have been entitled to one third the annual income or interest of the money. But the guardian paid over to the mother, without security, one third of his ward's share of the money, absolutely. At the time it was received, and thus paid over, there

was not the semblance of authority in the law for such action. The orphans' court could not legally have authorized it. What it could not precedently authorize, it cannot subsequently ratify. It can and has ratified the act of the guardian in selling the timber, under the circumstances. The ward, during minority, was incapable of assenting to the payment to the mother. The settlement with the guardian after she came of age is without significance. Tosustain such a settlement with a guardlan immediately after coming of age, there must be convincing proof that the ward understood, not alone what had been done with her money, or to whom it had been paid, but what was her right. It should have been explained to her that the guardian bad paid illegally to her mother $679.72 of her money. Then she could ratify, or insist on payment. There is no evidence that at the time of the settlement she comprehended the extent of her rights. She testifies that at the settlement no explanation was made to her; that Robert J. Haynes kept Mr. Uzzle's accounts for him, and made the calculations. Mr. Haynes testifies that he told her the amount of money her mother received, and then says: "I never explained to her that the returns from timber sold was real estate, and that Mrs. Mulholland was not entitled to an absolute one third, because I did not think that was the way. I do not think any of us knew any better." Apparently, all of them were ignorant of her estate in the purchase money of this timber; and no orphans' court, in the proper determination of the rights of wards in the settlement of their estates, can adopt such a transaction as binding on the ward. To do so would violate every rule of policy which has been laid down for the settlement of accounts between guardians and wards; would be full of peril to the helpless and inexperienced. We hold, therefore, that the guardian paid this $679.72 to the widow without authority, and that the alleged settlement made by the ward with her guardian after coming of age does not debar her from demanding from him payment of this sum.

Under the circumstances, what is the appropriate remedy? This guardian, under a mistaken notion of the widow's right, paid the money over to her. As between him and his ward, equity demands he should pay it to her. As between him and the widow, to whom it was paid, and who cannot, in good conscience, retain it, equity demands that she should pay it back to the guardian for investment under the order of the orphans' court. If, in the administration of this minor's estate, this guardian had conducted the business legally, what would have been the course of procedure? When the storm and fire placed the timber of his ward in peril, he would have presented his petition to the orphans' court, setting out the facts, suggesting the advisability of selling, and praying for an order to sell. The court would have made such order, and, further, would have directed him to retain in his hands two thirds of the purchase money, and invest the other third securely, so that the widow should

receive the annual interest during her life, and at her death the principal should be paid to his ward. What ought to have been done must be done now, as nearly as it can be. It is admitted that the widow is solvent, and possessed of ample estate. By mistake, she has in her possession, of her husband's estate, money which she ought to pay back, or secure to be paid back at her death. The money, then, is payable to her daughter, this appellant. Why should not the orphans' court, in the proper administration of justice, adjudicate in this proceeding the rights of the parties? This court has ample jurisdiction. The money in dispute is a fund realized from a sale of a part of the real estate of John Mulholland, deceased. His widow and daughter both have an interest in it. In Brooke's Appeal, 102 Pa. St. 150, we decided that the orphans' court could award a citation upon the surety of a guardian who had the property of minor children in his possession, and compel him to surrender it, or its proceeds. In Odd Fellows' Savings Bank's Appeal, 123 Pa. St. 356, 16 Atl. Rep. 606, it was held that the orphans' court could compel a bank to make restitution of certain stocks which it had obtained illegally from an estate. That court having jurisdiction over the estates of decedents, it follows the funds of the estate, because of its large equity powers. It need not call in the aid of a court of law. It is but scant justice to this ward to intimate to her, when she has clearly established her claim to this $679.72, that she shall go into a court of law, and sue her own mother, to get it. Her legal demand for the "fish" cannot be thus satisfied with a "stone," in a court established for the protection of those who, during infancy, are unable to protect themselves. We therefore are of the opinion that the orphans' court should issue a citation to Mrs. Caroline Mulholland, widow of Rudolph Mulholland, deceased, to appear on a day certain, and show cause why an order should not be made upon her to pay over to John G. Uzzle, guardian, the sum of $679.72, money which as he alleges he paid to her out of the proceeds of her husband's land, by mistake. If, on appearance and hearing, the court should find the fact to be as a verred by the guardian, then the court should order the investment of the money ou good security; the interest to be paid annually to the widow during her life, and at her death the principal to be paid to Martha A. Meeker, this appellant. Or the widow could be permitted to retain the money on giving proper security for the payment of the principal sum to her daughter at her death. But the decree of the orphans' court, striking from the auditor's statement of the account the item of surcharge, $679.72, is reversed, and the auditor's report is confirmed, with this modiscation: That on the said Caroline Mulholland repaying said sum, or giving proper security therefor, then the guardian shall be credited with a like amount on the credit side of his account.

Appellant's thirteenth assignment of error is also sustained. This litigation is due solely to the guardian's negligent

and irregular-though not dishonestmanagement of his ward's estate. There is no reason why she should bear any portion of the costs. That part of the decree which imposes upon her one half the costs is also reversed, and the suggestion of the auditor that all the costs be paid by the guardian is approved and adopted. The assignments of error, in so far as they affect the decree of the court below as to this one item of $679.72, and the costs of audit, are sustained, and the decree reversed, at the costs of the appellee. It is further ordered that the record be remitted to the orphans' court, that the case may be proceeded with in accordance with this opinion.

In re GILMOR'S ESTATE. Appeal of DORRANCE et al. (Supreme Court of Pennnsylvania. May 8, 1893.)

CONSTRUCTION OF WILL-SUBSTITUTION OF LEGATEES-PAROL EVIDENCE.

1. Where a testator bequeaths his estate to several legatees, but, learning of their death, interlines in the will between the words "as follows" and the list of the legatees the words "or to their heirs," and after the names adds words signifying their decease, and republishes the will, the legacies will not lapse, since the additions indicate words of substitution, and that "or" is clearly intended to be used for that purpose. Sloan v. Hanse, 2 Rawle, 28, and Barnett's Appeal, 104 Pa. St. 342, distinguished.

2. Extrinsic testimony of the time and circumstances under which the additions were made is admissible to show the testator's intention.

Appeal from orphans' court, Franklin County: John Stewart, Judge.

Proceedings for the distribution of the estate of John Gilmor, deceased. From a decree dismissing exceptions to the distribution recommended by the auditor, and confirming his report as amended, Gilbert S. Dorrance and others appeal. Reversed.

Hastings Gehr, O. C. Bowers, Bonbrake & Zacharias, J. M. McDowell, and Sharpe & Sharpe, for appellants. W. U. Brewer, W. Rush Gillan, and W. S. Hoerner, for appellees.

John

THOMPSON, J.. The question raised in this appeal is whether the legacies in the will of John Gilmor, deceased, lapse. Gilmor, the testator, died November 30, 1889, unmarried, leaving surviving him an unmarried sister, who died February 21, 1891. He made his will August 18, 1883, and on September 21, 1888, adding a codicil, then republished it. By his will before this republication he gave to his sister Eliza the income of his estate during her natural life, and upon her death directed his executor to convert the estate into inoney, and devised it to the following named persons, who were each to receive one share, viz. David M. Gilmor, Mary E. Abl, Nannie Herr, Lydia B. Wilson, William Gilmor, Samuel Dorrance, James Dorrance, Sr., William Dorrance, Eliza Robinson, Martha A. McClellan, Samuel P. Cum

mings, and William B. Cummings. The auditor appointed to make distribution finds that the only codicil is dated September 21, 1888, and in the latter part of the summer of 1889 Mr. Hastings Gehr and George McDowell visited testator, who produced his will, and at his request, and in his presence, they witnessed the same. Before this was done, testator, in their presence, interlined at the bottom of the first page the words "or to their heirs." After making this addition, and after the witnesses had subscribed their names, the testator republished both the will and codicil. Before this republication he added after "as follows" the words "or to their heirs, and after William Gilmor, "decd.;" Samuel Dorrance, “desed.; James Dorrance, Sr., “deceased;" Eliza Robinson, “deseased;" William Dorrance, "deceased;" Martha A. McClellan, "dsd.;' Samuel P. Cummings, "desed.;" William B. Cummings, "decd."

In

This will speaks from the date of its republication. In Coale v. Smith, 4 Pa. St. 386, it was said: "The effect of a new publication is that all which the words embrace at the time when the new publication is made shall pass thereby; or, to put it more clearly, when a man republishes his will, the effect is that the terms and words of the will should be construed to speak with regard to the property the testator is seised of, and the persons named therein at the date of the republica. tion, just the same as if he had such additional property, or such persons being in esse at the time of making his will, the conclusion from the fact being that the testator so intended. And this is a conclusion of law, as we have seen, not to be contradicted by any supposed absence of intention on the part of the testator, unless a contrary intent be manifested by something appearing in the codicil." Linnard's Appeal, 93 Pa. St. 316, Mr. Justice Sterrett said: "A duly-executed codicil operates as a republication of the original will, so as to make it speak as of the date of the codicil, (Coale v. Smith, 4 Pa. St. 376;) and it not only operates as a new adoption of the prior will, to which it refers, but also as a revocation of an intermediate will. In Wikoff's Appeal, 15 Pa. St. 281, Chief Justice Gibson, in speaking of interlineations proved to be in the bandwriting of a testatrix, says: "The presumption is that they were made at or before the time when the will was prepared for the final act.'" The testator's sister having died, his executors filed their account, which was referred to the auditor, to make distribution. Before him the appellants, as heirs at law and next of kin of legatees named in the will, claimed six twelfths of the estate, upon the ground that the testator intended by the words "or to their heirs" to substitute for the deceased lega tees their next of kin. Upon the question of compensation of executors parol evidence was offered for the purpose of showing that the name of one of the executors was inserted in the will, and on cross-examination one of the witnesses testified: "Question. You witnessed both the will and codicil that day? Answer. Yes, sir. Q. Did he submit it to you for

A.

your opinion? A. He asked about those people that were dead. I told him it might lapse, and he added their heirs.' Q. At that time did you read over the will? Yes, sir; I looked at the will." The same witness was recalled, and testified as follows, viz.: “Q. Do you know in whose handwriting this will is? A. The whole will is in the handwriting of John Gilmor, except the words' witness' and 'H. Gehr,' and 'G. D. McDowell.' Q. Do you know whether this will was all written, just as it now is, at one time? A. 'Or to their heirs' was added. Q. In what connection, I give, devise, and bequeath in as follows, or to their heirs,' on the last line of the first page, the last four words on the first page, you say that they were not in as originally written? A. They were not. Q. On the second page of the will, and the thirteenth line, where the word 'deceased' looks to me like'desd,' was it in as originally written? A. The word 'desd.?' Q. Was it in originally? A. No, sir. Q. Whose handwriting are the words 'or to their heirs?' A. John Gilmor's. Q. In whose hand writing is the word 'desd.?' A. John Gilmor's. Q. Are these the only alterations that you notice in the will and codicil? A. I believe so. As I said before, when I saw the will, William C. McClel lan's name was not in as one of the executors. Q. At the time of the will and the codicil were witnessed by you, were the words you speak of in the will, or were they made subsequently? Was it before that day or not? A. These were all in before that day. Q. The words or to their heirs' were put there by Mr. Gilmor? A. In our presence, at the time we witnessed the codicil. Q. Were they put there before or after you signed it? A. Before. We did not witness it until about the latter part of the summer of 1889. Q. At the date of the codicil, do you remember whether these other alterations in the will you have spoken of were in? A. All the alterations were put in at the same time. Q. Will you please state if you know how John Gilmor came to add these words 'or to their heirs' and the word 'deceased.' A. I told him that Martha McClellan's might lapse. I knew she was dead. Q. Did he know she was dead? A. Yes, sir. Q. What did he say or do in consequence of that? A. He said he would alter it the way he did." The auditor finds "that William Gilmor, Samuel Dorrance, James Dorrance, William Dorrance, Martha A. McClellan, Samuel B. Cummings, and William B. Cummings, named in the will, are dead, were all dead before the testator, and were all dead at the time of republication above mentioned, which fact was known to testator at that time."

The learned judge below sustained the auditor in not considering this testimony, because an attempt by extrinsic testimony to prove by parol the intention of the testator. The rule is well settled that extrinsic evidence cannot be adduced to qualify, explain, alter, or contradict the language of a will, but it must stand as written, where the intention is clearly expressed, and the objects of the bounty are definitely ascertained. This rule has been rigidly maintained, and doubtless, for the

protection of estates, will continue to be so by judicial decisions. While this is true for some purposes, proofs dehors the will may be admitted. It is said in Schouler on Wills, (section 579:) "But to aid the context by extrinsic proof of the circumstances and situation of the testator when it was executed is constantly permitted at the court's discretion, and this constitutes a proper-indeed, often an indispensable-matter of inquiry when construing a will; for, whatever a will may set forth on its face, its application is to persons and things external, and hence is admitted evidence outside the instrument of facts and circumstances which have any tendency to give effect and operation to the terms of the will, such as the names, descriptions, and designations of beneficiaries named in the will, the relation they occupy to the testator, whether testator was married or single, and who were his family, what was the state of his property when he made his will, and when he died, and other like collateral circumstances. Such evidence, being explanatory and incidental, is admitted, not for the purpose of introducing new words or a new intention into the will, but so as to give an intelligent construction to the words actually used, consistent with the real state of the testator's family and property; in short, so as to enable the court to stand in the testator's place, and read it in the light of those surroundings under which it was written and executed. In Jarman on Wills, (volume 1, § 394,) it was said: "Though it is (as we have seen) the will itself (and not the intention as elsewhere collected) which constitutes the real and only subject to be expounded, yet in performing this office a court of construction is not bound to shut its eyes to the state of facts upon which the will was made; on the contrary, an investigation of such facts often materially aids in elucidating the scheme of disposition which occupied the mind of the testator. To this end it is obviously essential that the judicial expositor should place himself as fully as possible in the situation of the person whose language he has to interpret, and, guided by the light thus thrown on the testamentary scheme, he may find himself justified in departing from a strict construction of the testator's language, without allowing conjectural interpretation to usurp the place of judicial interpreta. tion." It is said in Wharton on Evidence, (section 992,) in speaking of the exception when extrinsic evidence may be resorted to: "What is said at the time of the execution and attestation is admissible as part of the res gestæ, though not to contradict the will." Again, in section 998: "In construing a will,' so is this position accurately expressed by Blackburn, J., [Allgood v. Blake, L. R. 8 Exch. 160,] 'the court is entitled to put itself in the position of the testator, and to consider all the material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then declare what is the intention evidenced by the words used with reference to these facts and cir

cumstances, which were (or ought to have been) in the mind of the testator when he used those words.''

"de

It was therefore competent, for the purpose of ascertaining the intention of the testator, to show that at the time of the republication of his will the words "or to their heirs" were added; that the word "deceased" was added after the name of each of the legatees who were dead, and the circumstances under which it was so added. While this evidence cannot be resorted to either to control or modify the intention of the testator, it may serve to aid in ascertaining what the testator did intend. It is clear that from the fact that he republished his will so modified, and inserted at the time these words indicating that the legatees in question were dead, that he intended "or to their heirs" as words of substitution. When the original will was executed the legatees in question were alive, and when the republication took place they were dead. He therefore added after their names ceased," and thus clearly indicated that, as they were dead, they were not to receive the legacies. Such being the case, in order to indicate who were to receive them, he wrote before the list of their names "or to their heirs." It seems manifest that in making this republication, and in writing "deceased" after the names of these legatees, he intended to designate the persons who are to take the legacies in lieu of them. It is contended, however, that the word "or" is to be read as "and," reading thus: "and to their heirs;" and, so reading them, they become words of limitation, and not of purchase. Words have been transposed to carry out the evident intention of the testator. "Or" has been read as "and," and "and" has been read as "or." This has been done when it has been necessary to reach the true meaning of a will. No word will be rejected if an intelligent meaning can he given to it. In Gittings v. McDermott, 2 Mylne & K. 75, it is said: "The force of the disjunctive word 'or' is not easily to be got over. Had it been 'and,' the words of limitation would, of course, as applied to a chattel interest, have been surplusage; but the disjunctive marks as plainly as possible that the testator, by using it, intended to provide for an alternative bequest, namely, to the legatees if they should survive, and, if they should not, to their heirs." In Jarman on Wills, (volume 1, *486,) it is said: "But since Grey v. Pearson [6 H. L. Cas. 61] the cases last noticed have lost much of their weight as authorities for applying to any given case the rule which would change and' into 'or,' in order to prevent one member of a compound sentence being rendered inoperative. Though it be a canon of construction that effect is, if possible, to be given to every word used, it is one which must bend to circumstances; and, where the result of changing 'and' into 'or' would be only to render one member of the sentence inoperative instead of the other, the change certainly ought not to be made. It does not appear to have been made in any case since Grey v. Pearson, which, indeed, was

treated by Sir J. Romilly as having overruled Bell v. Phyn, [7 Ves. 459.] and Mayberly v. Strode, [3 Ves. 450,] as well as Brownsword v. Edwards, [2 Ves. Sr. 243.]" In Appleton v. Rowley, 8 L. R. Eq. Cas. 145, it was said: "Where the word 'or' is used it is introduced to prevent a lapse. If, in this case, the gift after the life estate had been to Sarah Gaywood and Alice Key, or their heirs or representatives, I should have followed the decisions in Re Porter's Trust, 4 Kay & J. 188; In re

use of a copulative instead of a disjunctive is too feeble to disinherit the heir." But in the present case, the death of the legatees having taken place before repub lication, he added after each of them the word "deceased," to indicate their death, and then "or to their heirs." He thus intended to use words of substitution. In other words, he intended to exclude a lapse, and to indicate those who should take. In the second case-Barnett's Appeal the will devised to the four sisters

on

No

a black horse, of course the borse would pass; but I do not think any an. notator of cases would put in the mar ginal notes that 'cow' means 'horse." In Griffith v. Woodward, 1 Yeates, 318, it was said: "Courts of justice will transpose the clauses of a will, and construe or' to be 'and,' and 'and' to be 'or,' only in such cases when it is absolutely necessary so to do to support the evident meaning of the testator. But they cannot arbitrarily expunge or alter words without such apparent necessity." reason can be adduced in this case to show a necessity for the change of the word "or" to "and." The republication of the will, the knowledge of the death of the legatees at that time, the writing the word "deceased" after these names, and before the list of legatres "or to their heirs," indicate words of substitution, and that "or" was clearly intended to be used for that purpose. It is contended the position of the words "or to their heirs" is such they cannot have any effect. The will originally read, "I give and bequeath in as follows," and then follow the names of the legatees. At the republication the words "or to their heirs" were added after "as follows." It is clear that the intention was that these words were intended to apply to the respective legatees.

and heirs." Two sisters, at the time of the execution of the will, were dead. The decision there was that the words “and to their heirs" were words of limitation, and that the testator did not intend them as words of purchase. It was said in that case: "There are several cases where the word 'heirs' has been held to mean children, but they were all instances where such was the intention of the testator as gathered from the will itself. This will contains nothing from which such an intent can be inferred." The difference between that case and the present one is marked. The words there used are "to them and to their heirs," while here the word “deceased" is written after the legatees, and the words used are "or to their heirs." From the will itself the intent is clear that when the testator republished it, and altered its language, inserting the word "deceased," and adding "or to their heirs," he intended words of substitution, and not of limitation. These words, being those of substitution, the persons who thus are intended to. take can be clearly ascertained. In McKee's Appeal, 104 Pa. St. 573, it is said: "In a bequest of personalty, unless a con. trary intent is indicated by the will, the word 'heirs' cignifies heirs as ascertainedby the statute of distribution. Baskin's Appeal, 3 Pa. St. 304; Eby's Appeal, 84 Pa. St. 241; Bender's Appeal, 3 Grant. Cas. 210." In Ashton's Estate, 134 Pa. St. 395, 19 Atl. Rep. 699, Mr. Justice Sterrett says: "When used in a gift of personalty, it is very frequently employed to denote those who are entitled to take under the stat ute of distribution, unless there is something to indicate a contrary intention." We have, then, in this case, words substituting persons to receive as such, and such persons clearly ascertainable, and therefore the decree of the orphans' court is reversed, and the record remitted for further proceedings; the appellees to pay the costs of this appeal.

HARRIS v. HARRIS.

(Supreme Court of Pennsylvania. May 8, 1893.)

BURDEN OF PROOF.

Where a judgment entered on a judgment note is opened to try the issue as to whether defendant's signature to the note was a forgery, the burden of proof is on plaintiff to prove his whole case before defendant is.