[433]*433The opinion of the Court was delivered by
Kennedy, J.
This is an action of assumpsit, claimed to be founded upon a verbal contract, alleged to have been made by Stephen Girard, the testator, in his lifetime, with the plaintiffs, for the purchase of a certain lot or piece of ground, and stables thereon erected, situate on the north side of Harmony Court, in Walnut ward, in the city of Philadelphia, at the price of $15,000. On the trial of the cause, at Nisi Prius, various questions were raised, which are presented in the reasons assigned for a new trial. Among the number, the question whether the plaintiffs tendered such a title to the defendants as they were bound to accept under the contract alleged to have been made with their testator, was perhaps the most difficult, and not the least important. It was not deliberately passed on, but, for the purpose of disposing of all the other questions, the jury were instructed to consider the title good: that if it were not so, and the jury should be of an opinion that the contract for the purchase was established, and that the testator, in his lifetime, or the defendants, since his death, had failed to comply with it, so that their verdict should be for the plaintiffs, the defendants would be entitled to relief by having the question as to the title decided in bank. And seeing the court in bank are of opinion, after full consideration, that the title offered by the plaintiffs to the defendants is not such, supposing the contract for the purchase to have been made, as the defendants ought to have accepted, it becomes unnecessary to pass upon the other questions. I cannot, however, forbear expressing my opinion as to the insufficiency of the evidence given to establish the contract, as set out in the declaration, or, indeed, to show that any definitive contract at all was made for the purchase. Viewed in its most favourable aspect for the plaintifis, it appears at best to be but very loose and unsatisfactory. The damages assessed by the jury, also appear to be enormous, and altogether unreasonable. It is true, to be sure, that the action was brought to recover the whole amount of purchase money, which exceeded greatly the amount of the verdict; but as a recovery of the purchase money would have been, in effect, an enforcement of a specific performance of the contract, the learned Judge before whom the trial was had, very properly ruled, that as the contract declared on was verbal, and therefore within the provisions of the Act against frauds and perjuries, the plaintiffs at most were only entitled to recover damages equal to the loss actually sustained by a non-fulfilment of the contract; which, in this case, would appear, from the evidence, to be the difference between the value of the property, at the time the defendants refused to fulfil the contract, and the sum agreed to be paid as the price of it. But it does seem to me that the jury went beyond this; which, according to the evidence, did not exceed, at the utmost, the sum [434]*434of $5000; but they have given their verdict for $6500. Let us, however, return to the question of title. By the plaintiffs’ counsel it has been argued, first, that the wife of the plaintiff took an estate tail in the property in question, under the will of her late father; and that the deed of conveyance, therefore, offered to the defendants, if it had been accepted by them, would have passed the fee simple in the property. That she took an estate tail, and not an estate for life merely, is, as it has been contended, shown by the doctrine established and laid down in Wild’s case (6 Co. 17), as also the cases of Davie v. Stevens, (Doug. 321); Hodges v. Middleton, (Id. 431); Seale v. Barter, (2 Bos. & Pull. 485); and Wood and wife v. Baron, (1 East. 259). But the farthest that the doctrine laid down in Wild’s case goes, is that where A devises his lands'to B, and his children or issues, and he hath not any issue at the time of the devise, it shall be considered an estate tail. But where B has children or issue, at the time of the devise, they shall take, jointly with their father, an estate for life; or if the devise be to him for life,'and after his decease- to his children, the father in this case will only take an estate for life, and his children, whether born or not at the time of the devise, will take as purchasers by way of remainder. And the case of Wild itself was that of a devise “ to Wild and his wife, and after their decease to their childrenand resolved that Wild and his wife had but an estate for life, with remainder to their children. Hence, it appears to me that Wild’s case, as also every thing contained in it, is most decisively in favour of the plaintiff’s wife taking but a life estate under the will of her father; for, by the terms of the devise, the testator expressly limits the duration of her interest to that of her life, and shows plainly also that her children are not to take until after her death, when they are to take a “ fee simple as tenants-in-common,” which must necessarily be by way of remainder; and whether she had children or not at the time of making the will, which does not distinctly appear, though the inference to be drawn from the terms of the will would seem to be that she had, the remainder is good, because the life estate to the mother is sufficient to support it either as a vested or contingent remainder.
The words of the testator in relation to the devise in question, are, “ I repeat it again, that all that I have willed to her (meaning his daughter Mary; the wife of the plaintiff-) of my real estate is to be handed down to her children in fee simple, as tenants in common, she only to enjoy the income during her life, under the penalty, if by any manner a conveyance or sale for term or length of time should be made, then the income to be taken out of her ' hands, and be divided between her brothers and sisters; preserving the principal for her children, to be secured and taken care of after her death by guardians appointed by the Orphans’ Court, by no means related to them in any manner whatever. My [435]*435daughter Mary to have the management of the same during her life, but no other person.” The testator, when he says, “ I repeat it again,” was clearly under the impression that that portion of his real estate, given by him in a previous part of his will to his daughter Mary, had been given to her for her life only, but in this he was mistaken; yet it goes to show most conclusively the fixed determination of his mind from first to last, that Mary, the wife of the plaintiff, should only have a life estate in it. Under the previous parkof the will, Mary would have taken a fee simple in her portion of the real estate. The words are, “ I give, devise, and bequeath the whole of my estate, real and personal, to the above named six children (among whom Mary is one); adhering to the subsequent conditions, legacies, &c.; in six equal parts, as near as may be, share and share alike, as tenants in common, and to their heirs far ever.’ But then the- effect of this is qualified and restrained, indeed nullified it may be said, as regards the quantum of the estate given to Mary, by the subsequent clause, recited above, reducing her interest expressly to a life estate. It is said that the words, “ to be handed down to her children,” show that the testator intended that that portion of the real estate, allotted by him to Mary, should descend from her, as by
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[433]*433The opinion of the Court was delivered by
Kennedy, J.
This is an action of assumpsit, claimed to be founded upon a verbal contract, alleged to have been made by Stephen Girard, the testator, in his lifetime, with the plaintiffs, for the purchase of a certain lot or piece of ground, and stables thereon erected, situate on the north side of Harmony Court, in Walnut ward, in the city of Philadelphia, at the price of $15,000. On the trial of the cause, at Nisi Prius, various questions were raised, which are presented in the reasons assigned for a new trial. Among the number, the question whether the plaintiffs tendered such a title to the defendants as they were bound to accept under the contract alleged to have been made with their testator, was perhaps the most difficult, and not the least important. It was not deliberately passed on, but, for the purpose of disposing of all the other questions, the jury were instructed to consider the title good: that if it were not so, and the jury should be of an opinion that the contract for the purchase was established, and that the testator, in his lifetime, or the defendants, since his death, had failed to comply with it, so that their verdict should be for the plaintiffs, the defendants would be entitled to relief by having the question as to the title decided in bank. And seeing the court in bank are of opinion, after full consideration, that the title offered by the plaintiffs to the defendants is not such, supposing the contract for the purchase to have been made, as the defendants ought to have accepted, it becomes unnecessary to pass upon the other questions. I cannot, however, forbear expressing my opinion as to the insufficiency of the evidence given to establish the contract, as set out in the declaration, or, indeed, to show that any definitive contract at all was made for the purchase. Viewed in its most favourable aspect for the plaintifis, it appears at best to be but very loose and unsatisfactory. The damages assessed by the jury, also appear to be enormous, and altogether unreasonable. It is true, to be sure, that the action was brought to recover the whole amount of purchase money, which exceeded greatly the amount of the verdict; but as a recovery of the purchase money would have been, in effect, an enforcement of a specific performance of the contract, the learned Judge before whom the trial was had, very properly ruled, that as the contract declared on was verbal, and therefore within the provisions of the Act against frauds and perjuries, the plaintiffs at most were only entitled to recover damages equal to the loss actually sustained by a non-fulfilment of the contract; which, in this case, would appear, from the evidence, to be the difference between the value of the property, at the time the defendants refused to fulfil the contract, and the sum agreed to be paid as the price of it. But it does seem to me that the jury went beyond this; which, according to the evidence, did not exceed, at the utmost, the sum [434]*434of $5000; but they have given their verdict for $6500. Let us, however, return to the question of title. By the plaintiffs’ counsel it has been argued, first, that the wife of the plaintiff took an estate tail in the property in question, under the will of her late father; and that the deed of conveyance, therefore, offered to the defendants, if it had been accepted by them, would have passed the fee simple in the property. That she took an estate tail, and not an estate for life merely, is, as it has been contended, shown by the doctrine established and laid down in Wild’s case (6 Co. 17), as also the cases of Davie v. Stevens, (Doug. 321); Hodges v. Middleton, (Id. 431); Seale v. Barter, (2 Bos. & Pull. 485); and Wood and wife v. Baron, (1 East. 259). But the farthest that the doctrine laid down in Wild’s case goes, is that where A devises his lands'to B, and his children or issues, and he hath not any issue at the time of the devise, it shall be considered an estate tail. But where B has children or issue, at the time of the devise, they shall take, jointly with their father, an estate for life; or if the devise be to him for life,'and after his decease- to his children, the father in this case will only take an estate for life, and his children, whether born or not at the time of the devise, will take as purchasers by way of remainder. And the case of Wild itself was that of a devise “ to Wild and his wife, and after their decease to their childrenand resolved that Wild and his wife had but an estate for life, with remainder to their children. Hence, it appears to me that Wild’s case, as also every thing contained in it, is most decisively in favour of the plaintiff’s wife taking but a life estate under the will of her father; for, by the terms of the devise, the testator expressly limits the duration of her interest to that of her life, and shows plainly also that her children are not to take until after her death, when they are to take a “ fee simple as tenants-in-common,” which must necessarily be by way of remainder; and whether she had children or not at the time of making the will, which does not distinctly appear, though the inference to be drawn from the terms of the will would seem to be that she had, the remainder is good, because the life estate to the mother is sufficient to support it either as a vested or contingent remainder.
The words of the testator in relation to the devise in question, are, “ I repeat it again, that all that I have willed to her (meaning his daughter Mary; the wife of the plaintiff-) of my real estate is to be handed down to her children in fee simple, as tenants in common, she only to enjoy the income during her life, under the penalty, if by any manner a conveyance or sale for term or length of time should be made, then the income to be taken out of her ' hands, and be divided between her brothers and sisters; preserving the principal for her children, to be secured and taken care of after her death by guardians appointed by the Orphans’ Court, by no means related to them in any manner whatever. My [435]*435daughter Mary to have the management of the same during her life, but no other person.” The testator, when he says, “ I repeat it again,” was clearly under the impression that that portion of his real estate, given by him in a previous part of his will to his daughter Mary, had been given to her for her life only, but in this he was mistaken; yet it goes to show most conclusively the fixed determination of his mind from first to last, that Mary, the wife of the plaintiff, should only have a life estate in it. Under the previous parkof the will, Mary would have taken a fee simple in her portion of the real estate. The words are, “ I give, devise, and bequeath the whole of my estate, real and personal, to the above named six children (among whom Mary is one); adhering to the subsequent conditions, legacies, &c.; in six equal parts, as near as may be, share and share alike, as tenants in common, and to their heirs far ever.’ But then the- effect of this is qualified and restrained, indeed nullified it may be said, as regards the quantum of the estate given to Mary, by the subsequent clause, recited above, reducing her interest expressly to a life estate. It is said that the words, “ to be handed down to her children,” show that the testator intended that that portion of the real estate, allotted by him to Mary, should descend from her, as by operation of law to her children; and if so, she must be considered as invested with an estate tail under the will. But the words immediately following, “ in fee simple, as tenants in common,” are wholly incompatible with such estate, or the requisite operation of law to create it. And the words immediately following these last recited, “ she (meaning Mary) only to enjoy the income during her life,” are wholly incompatible with such intention as that of giving an estate tail or any other estate to Mary, than that for life.
But it is contended that the remaining words of the same item in the will, go to show that even if Mary should sell and convey her portion of the estate, the testator did not mean that such sale and conveyance, though in fee, should be void. But that, for doing so, she should forfeit all her right to claim any benefit from the proceeds thereof. The remaining words are, “ under the penalty, if by any manner whatever a conveyance or sale for term or length of time should be made, then the income to be taken out of her hands, and be divided between her brothers and sisters, preserving the principal for her children, to be secured and taken care of after her death, by guardians appointed by the Orphans’ Court, by no means related to them in any manner whatever. My daughter Mary to have the management of the same during her life, but no other person.” The word “principal” here, it is said, must be understood to mean money, that is, the money that shall arise from the sale and conveyance made by Mary of her portion; because principal is not referrible, properly speaking, to land or real estate; but certainly, land or real estate may be called principal, when it is [436]*436intended to distinguish it from the profits or income that may be derived from it, with as much propriety as the interest that arises from a pecuniary principal may be called income; so that the argument has nothing conclusive in it, going to show that it was the intention of the testator that a sale and conveyance of the estate by his daughter Mary should not be void. But on the contrary, the whole of the item or paragraph taken together, shows very clearly that the testator intended that she should only have a life estate, at most, and, as if he was not even willing that she should' sell and convey that away, or if she did that she should forfeit all claim to the income of it thereafter, and that it should be taken by her brothers and sisters during her life, and upon her death go to her children with the estate itself in fee-simple, to be enjoyed by them as tenants in common. There is nothing in this case which would seem to indicate that the testator intended to use the term “ children” as one of limitation but not oí purchase. Had he superadded to the devise a clause providing that, in case of Mary’s dying without children, then, or in that case, the estate should go over to others named by him, there might, perhaps, have been some colour for saying that children ought to be construed as a word of limitation, seeing such a clause would have tended to show that the testator meant issue by the word children, and that the estate should descend to his issue indefinitely, and not go over as directed, except upon an indefinite failure of issue. Had such a clause been introduced, the other cases cited, beside that of Wild’s, by the counsel for the plaintiffs, might possibly have had some bearing upon this case; but as it is, we cannot perceive that they make any thing in favour of the plaintiffs.
But it is alleged in the second place, that the deed of conveyance, tendered to the defendants by the plaintiffs, carried with it a good title to the estate in fee, under the Act of Assembly passed, as it is said, in this behalf, the 7th of May 1832. By this Act, upon the petition of Mary Ellet and her husband, Charles Ellet, the plaintiffs, to the Orphans’ Court of the city and county of Philadelphia, the said court is authorized to appoint a trustee or trustees to sell and convey all or any part of the share of the real estate of Israel Israel, late of the said city deceased, which was allotted to and taken by Mary Ellet, daughter of the said deceased, for her use for life, and for her children in fee. But before any sale shall be made, the court shall prescribe the time, place, and manner in which the said sale shall be made, and shall also prescribe such acts to be done by the trustee or trustees, as shall secure the safe and permanent investment of the funds arising from such sale, the payment of the income therefrom to the said Mary Ellet for life, and the payment and distribution of the principal, after her decease, to and among her children, and the issue of any deceased child or children, the latter to take only a parent’s share. And [437]*437that, before the deed or deeds for the same shall be valid, the security or investment of the moneys arising from the sale, and the sale itself, shall be submitted to and approved by the said court. Now, it is very apparent from the terms of. the Act, that the sale spoken of and authorized by it, was a future sale to be made by the trustee or trustees appointed for that purpose by the Orphans’ Court, under the authority of the Act; and it would seem also that a public sale was intended, as the court is required to prescribe the time, place, and manner, which would have been unnecessary, had a private sale been contemplated. But the sale which is alleged to have been made, and sought to be enforced here, is a private sale, made by the plaintiff’s before the passage of the Act, and therefore cannot be brought within the terms of it, or considered as sanctioned by it. It is said, however, that the sale alleged to have been made in this case, was approved by the Orphans’ Court; but seeing it was not made in pursuance of the terms of the Act, the Orphans’ Court had no power to approve or confirm it. Had a sale been made in pursuance of the Act, it and the conveyance could only have been made by the trustee appointed by the Orphans’ Court for that purpose, and in case of a refusal on the part of the buyer to pay the purchase money, the suit to enforce the payment thereof could only have been instituted and prosecuted in the name of the trustee; so that the whole proceeding would have been altogether different from what it is in this case. We are therefore of opinion that the verdict must be set aside, and a new trial granted.
New trial granted.