29 Pa. Super. 28 | Pa. Super. Ct. | 1905
Opinion by
By his will dated in 1868, the testator, who died in 1876, directed his executors and trustees to continue any business in which he was engaged at the time of his decease for such length of time as they should deem for the best interest of his estate, and for that purpose to use any funds belonging to his estate or arising from the sale of any portion thereof under the power of sale thereinafter given, to borrow money on the credit of his estate, and to bind the same by signing or indorsing notes, bonds or other instruments of writing requisite in carrying on said business, and “ to do and perform every act in the management, conduct or winding up of said business necessary, in the same manner as I might or could do if living, my object being
By deed dated September 5, 1902, and duly recorded, Frank W. Leisenring assigned to Marion A. Martin, for the consideration of <$50.00, “ all the estate, right, title and interest, share, propertj’, claim and demand of every kind and whatsoever nature either at law or in equity whether vested or contingent of him the said party of the first part of, in and to the estate of the said Daniel H, Rockhill, deceased.” By deed
As the account shows that Marion A. Martin, the first assignee, and W. D. Neilson, the second assignee, have, together, received from the trustee nearly three times the amount of the original loan, it is apparent that if the separate paper last referred to had been duly executed and recorded, the appellant would not be entitled to claim any part of the share of Frank W. Leisenring of the fund for distribution. Upon this point the learned judge who delivered the opinion of the orphans’ court correctly says : “ Once a mortgage always a mortgage is a fundamental maxim. Forfeitures are odious in equity and the borrower will be permitted to redeem notwithstanding the fact that the time of payment has passed. See Story’s Equity, sec. 1316. The law in this respect is not changed by an express provision in the defeasance that the conveyance shall be absolute if the money is not paid at the day: Rankin v. Mortimere, 7 Watts, 372.” But the appellant claims that the assignment cannot be construed as a mortgage because the provisions of the Act of June 8, 1881, P. L. 84, relative to defeasances were not complied with. In- answer to this contention, which we shall consider in its legal aspect only, it has been suggested that “ the failure to record, by analogy to the decisions with regard to recording deeds, is probably immaterial as against
Assuming for present purposes that the act of 1881 is applicable it becomes necessary to consider the question of the validity of the assignment itself; or rather, its operative effect in the distribution.
The will contains this clause : “ Eighth. The income shares or estates given or created by this will shall belong and be received only by those whom I have designated, and in no manner shall be assigned or transferred by them or be made liable to attachment, execution or other process for their debts or liabilities, and their receipts alone shall discharge the trustees.” We
Decree affirmed and appeal dismissed at the cost of the appellant.