John M. Housel, the testator, whose estate is now for distribution, died, March 16, 1884. His estate consisted of $109.24 cash, some bonds, mortgages, promissory notes, etc., a small amount of household goods, etc. A few days after the letters were issued Elizabeth Housel notified the executor, in writing, that she claimed $300 out of the estate of her deceased husband allowed by law to her as his widow, and stated specifically that she desired that sum to be paid to her "in cash." No appraisement was made or taken by the executor, under her claim. Indeed, it may be conceded none was necessary. On the twenty-eighth May following, the widow also died, and the claim is presented by the executor of her last will and testament. Her claim was for "cash." One hundred and nine dollars and twenty-four cents was all the cash then belonging to the estate, and to this extent only her legal representatives are now entitled, under that claim, in this distribution. If her demand had been made after the bonds, notes, or other securities had been realized, a different question would be presented, but she died before they had been converted to money. She might have claimed her exemption partly in money and partly in any of the securities, or wholly in the latter; but she did not, and we think the learned court was right in restricting the claim to the cash on hand when the claim was made.

The second question is supposed to arise upon the construction of the last will and testament of John M. Housel, deceased. Elizabeth, his wife, at the time of her marriage, was the owner of a certain house and lot of ground in Milton. It was incumbered by mortgage to the amount of $2,400. A second mortgage was afterwards executed upon the same property in the sum of $1,000, and both were subsequently purchased by and assigned to her husband, who was in the possession of the property at the time of his decease.

In the last will and testament of John M. Housel, deceased, it is, inter alia, provided as follows:

"Item. I give and bequeath to my beloved wife, Elizabeth Housel, all my household furniture or goods during the term of her natural life, and direct that no security be required from her for the same; and I also give and bequeath unto my said wife, Elizabeth Housel, (after my just debts and funeral expenses shall have been paid and fully settled by my executor,) the one-third of my personal estate, to her own use and benefit absolutely. The household furniture, however, shall not be included in the appraisement of my personal estate before distribution as aforesaid."

"Item. As I hold judgments against my said wife, Elizabeth Housel, which are entered up in the court of common pleas of Northumberland county against the property which I now occupy, it is my will, and I so direct, that no part of my said judgments shall be collected by my executor or heirs from my said wife, Elizabeth Housel, during the term of her natural life, but the same shall be kept revived as a lien against her property aforesaid until after her decease, and after her death the proceeds thereof shall be divided equally among my surviving children, and the children of such as are deceased; the said children of such of my children as are deceased to take the share of their respective parent.”

It is conceded that the testator was mistaken as to the nature of the securities he held upon his wife's property, and that the "judgments"

referred to in the will were in fact the mortgages mentioned. The question is whether or not, upon a fair construction of the will, the bequest to the widow of the one-third of the personal estate to her own use and benefit, in the clause first quoted, was intended to embrace one-third of the "judgments" referred to in the second.

The widow's claim here is based upon the assumption of a surrender of her right under the intestate law, and her acceptance of the will. She stands upon an equity which is superior even to that of a child. She is not to be treated as a mere volunteer, but as a purchaser, and is therefore entitled to a fair and reasonable construction of the will in her interest. Reed v. Reed, 9 Watts, 263.

The provision for the widow would appear to have been the subject of his chief solicitude. He gave to her the household furniture, etc., during her life-time; one-third of his personal estate, after payment of debts, etc., absolutely; and provided that her indebtedness to him should not be collected while she lived. The bequest of one-third of his personal estate is in the most distinct and unequivocal language; and in order, apparently, that there might be no occasion for mistaking his intention in this respect, he directs that the household furniture is not to be included in the distribution in which the amount of that one-third is to be ascertained. The gold watch, which he bequeathed to his son James, was not to be taken into the appraisement; and it is quite probable that the testator intended that it should in like manner be excluded. Let that be as it may, it is certain that the will does not indicate any intention of the testator that any other portion of his personal property, excepting what he thus particularly specified, was to be excluded from the computation of the widow's third. It is true that in the second item he refers to the judgments (mortgages) he holds against his wife, and directs that no part of these judgments shall be collected from her during her life, but that the same shall, by revival, be maintained as liens, etc., and that after his decease the proceeds shall be divided as he directs; but this, as we understand it, does not involve any inconsistency with the clause first quoted. The bequest of one-third of the judgments to the widow does not conflict with a provision that they shall not be collected within a given period, whether that be the period of her life-time, or the life-time of one of his children, or any other period of time. There is no provision that the widow shall have the benefit of the judgments during her life-time. They were not to be collected, but they were to be revived, and the interest thereon to accumulate until her death, and the "proceeds," that is to say, the money arising or obtained therefrom, to be distributed to his children.

A will must be construed so that every clause may take effect, if that be possible. No part will be rejected as repugnant if any fair and reasonable construction can be given to the whole, which will render every part effective. Nathans v. Morris, 4 Whart. 389; Mutter's Estate, 38 Pa. St. 314; Seibert v. Wise, 70 Pa. St. 147. But even if the direction in this second clause of the will may be considered ambiguous, or of doubtful meaning, which we do not think it is, it must be construed in subor

dination to the original bequest, the terms of which are clear and unequivocal. Sheetz's Appeal, 82 Pa. St. 213.

It will be observed, also, that the absolute share of the widow under the will, as we have interpreted it, is in accordance with her rights under the intestate laws; and it has been held in numerous cases that, where the will leaves the mode of distribution doubtful, the court will apply the principle of the statute of distributions. Minter's Appeal, 40 Pa. St. 111; Horwitz v. Norris, 60 Pa. St. 261; Grim's Appeal, 89 Pa. St. 333; Hoffner v. Wynkoop, 97 Pa. St. 13.

By every rule of construction we think this will should be read as giving to the widow her full share of the personalty. The testator clearly contemplated an appraisement of his entire estate, except as specifically provided, and a distribution upon the basis of that appraisement,-onethird to the widow, of the appraised value. He explicitly directs what shall be omitted from this appraisement and distribution, to-wit, his gold watch and his household furniture. If he had intended to exclude the mortgages, it is reasonable to suppose he would have said so.

It was suggested at the argument that the question of interest had been reserved, to be disposed of in the future. We infer from this that there may be matters bearing upon the question of the widow's responsibility for interest, or upon the extent of that responsibility, of which we are not informed. We will not, therefore, attempt a distribution upon the basis of this opinion, but will remit the record in order that this may be done in the court below. The decree of the orphans' court is reversed; and it is ordered that the record be remitted in order that distribution may be made in accordance with this opinion; and it is ordered that the appellees pay the costs of this appeal.

FISHER V. MOYER.1

(Supreme Court of Pennsylvania. May 17, 1886.)

1. PRINCIPAL AND AGENT-AUTHORITY-EVIDENCE.

Defendant contended that he had authority from plaintiff to make sale of a certain horse belonging to plaintiff, and upon the trial offered in evidence a letter from plaintiff to defendant, in which the former said: "I think you had better get rid of some of your old stock. Held, that the construction of the letter was for the court, and that it was error to submit it to the jury for them to ascertain whether or not it authorized a sale.

2. SAME-AUTHORITY TO SELL.

A letter from plaintiff to defendant, in which the former says, "I think you had better get rid of some of your old stock:" held, not to give authority to the defendant to sell the plaintiff's horse.

Error to common pleas, Schuylkill county.

Replevin, by F. S. Fisher against Jacob Moyer, to recover a horse alleged to be the property of plaintiff. F. S. Fisher, being the owner of

timber land near Barnesville, Schuylkill county, engaged one John H. Miller to cut mining timber thereon. Part of the land being cleared and

1Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar.

cultivated, Miller moved his family on the land, and occupied an old house there. In addition to the work he was to do for Fisher, Miller also farmed the cleared land, and worked at the erection of a new house which he was to occupy. To enable him to carry out his contract and work the farm, Fisher purchased for the use of Miller a lot of farming implements, a couple of cows, a mule, and the horse about the ownership of which this controversy arose. Miller continued on the farm for some time, until March, 1884, at which time Fisher was at the place to arrange for him to remain another year, and left under the impression that Miller was going to remain. Miller, however, just after Fisher's departure, took the horse and mule, and went to Ringgold, about 15 miles away, and sold the horse to the defendant, Moyer, for $55. Miller then returned home, and took everything on the place, and removed to Frackville. As soon as Fisher heard of this, he began this action of replevin. At the trial of the cause, defendant undertook to establish three propositions: First, that Miller was the owner of the horse, and therefore had a right to sell him; second, that, by the course of dealing between them, Fisher had permitted Miller so to deal with his property that a general authority might be inferred from Fisher to Miller to sell Fisher's personal property then in the custody and care of Miller; and, third, that by a letter written by Fisher to Miller he had given the latter special authority to sell the horse in question. The weight of evidence as to the first two propositions was clearly against the defendant. As to the third proposition, the court, GREEN, J., in its charge to the jury, said:

"We say to you, we do not think, under the undisputed testimony in this case, that there is sufficient evidence from which a jury could infer such a general authority from Fisher to Miller as would authorize Miller to sell Fisher's property. That being the case, then a question for you to determine is whether there was sufficient special authority, outside of the mere general employment in which Miller was engaged, shown to satisfy that Fisher did authorize Miller to sell this property. With regard to that, the main testimony is this letter of the twentieth of October, 1883, sent by Fisher to Miller: DEAR SIR: I will not come down this week, which I had expected, and may not be down next week, unless I stop on my return from Philadelphia. I paid the bills at Behler's. I don't want you to buy so much stuff now, and I think you had better get rid of some of your old stock. I will come down shortly and then fix matters up.' This was written on the twentieth of October, 1883. It is a question for you to determine whether this letter gave authority to Miller, in March, 1884, to sell this property,-whether this letter did refer to this property of Fisher, if you find that it belonged to Fisher, or whether it simply referred to the property which Miller himself owned, and as to which there is no dispute."

Verdict and judgment for defendant; whereupon plaintiff took this writ, assigning for error the above portion of the charge.

H. B. Graeff and James Ryon, for plaintiff in error.

The construction of this letter was for the court, and should not have been left to the jury, Beatty v. Insurance Co., 52 Pa. St. 456; Esser v. Linderman, 71 Pa. St. 76; Welsh v. Dusar, 3 Bin. 329; Bryant v. Hagerty, 87 Pa. St. 256; McCoy v. Lightner, 2 Watts, 347.

v.4A.no.1-5

G. H. Gerber and Wm. A. Marr, for defendant in error.

The question was whether Fisher authorized Miller to sell anything; and, if he did, what it was. This was a question of fact for the jury, and this letter was part of the evidence for them, and was properly submitted. 2 Greenl. Ev. § 28a; McCoy v. Lightner, 2 Watts, 347; Miller v. Fichthorn, 31 Pa. St. 252; Frame v. William Penn Coal Co., 97 Pa. St. 312.

PAXSON, J. We think it was error to submit to the jury the construction of the letter referred to in the first assignment. It is settled law that the construction of written instruments is for the court. Bryant v. Hagerty, 87 Pa. St. 256. There was nothing to make this an exception to the rule. The letter does not admit of more than one construction. It was written by the plaintiff to the defendant, and recommends the defendant to get rid of some of his old stock. The exact words are: "I think you had better get rid of some of your old stock.” By no proper rule of construction could this be held to be an authority to the defendant to sell the plaintiff's horse. Yet the jury have so found, and probably upon this letter alone, as the learned judge charged them that there was not sufficient evidence of a general authority to make the sale. The case may be fairly said to have turned upon the question of authority to sell. Upon the question of the ownership of the horse, the weight of the testimony was so heavily with the plaintiff that the jury could hardly have found that issue in favor of the defendant. The court should have instructed the jury that the letter contained no authority to sell the plaintiff's horse. This disposes of the first assignment.

We are compelled to sustain the remaining assignments, for the reason that in each of them the question of the defendant's authority to sell was submitted to the jury. As there was no such authority proved, it was error to submit the question at all.

Judgment reversed, and a venire facias de novo awarded.

BROKAW v. BROKAW'S EX'RS.1

(Court of Chancery of New Jersey. May 18, 1886.)

1. EQUITY-PLEADINGS-BILL MUST SHOW, WHAT.

All the facts essential to show the complainant's right to relief must be avered in his bill with certainty and clearness, and positively.

2. ASSIGNMENT-WHAT CONSTITUTES, IN EQUITY.

Any writing or act which clearly indicates that the assignor intends to make over a fund belonging to him amounts in equity to an assignment of the fund. 3. SAME-EXAMPLE OF.

At law, an order drawn by a creditor on his debtor, in favor of a third person, will not give the third person a right of action against the debtor unless he accepts the order, but equity will treat an unaccepted order as a valid assignment of the debt if the order has the support of a valuable consideration, but not if it is without such support.

4. TRUST-CESTUIS QUE TRUST-PARTIES, WHEN INTERESTS INVOLVED.

In contests respecting property held in trust, where the interests of the cestuis que trust stand oposed to the right set up by the complainant, the cestuis que trust are necessary parties.

1Syllabus prepared by the vice-chancellor.