hands of their principal. For this reason they have a right to be heard when the question of the amount of that balance is being investigated and determined in the orphans' court; but neither the guardian nor his sureties can be heard to deny his liability for money of his ward actually received by him on the ground that he ought not to have been appointed. The bond was given after and because of the appointment, for the purpose of qualifying the appointee to act. tent of the liability of the sureties depends on what may happen after the appointment. The questions in which they are interested are:

The ex

What has the guardian received for which he is bound to account? Has he expended it in a proper manner? If a balance remains in his hands, what is its amount? And, when these are answered, the amount of their liability is ascertained. In this case the balance has been properly ascertained. Whether Doner should have been appointed is not now the question. He was appointed. He assumed to act under the appointment. He has the money of his ward still in his hands, and, if he does not pay it over, his sureties may properly be called upon to do so for him. The decree of the orphans' court is affirmed.

(156 Pa. St. 285)

O'ROURKE v. SHERWIN. (Supreme Court of Pennsylvania. July 19, 1893.) LAND.

TESTAMENTARY POWERS-EXECUTION-SALE OF

Testator devised to his children, K., J., and W., his farm, "to hold the same as tenants in common during their lives, and the life of the survivor of them, with remainder in fee" to their issue per stirpes. The will authorized the devisees "to sell and convey and give sufficient deeds for the whole or a part" of the estate, and appointed them executors. By agreement the farm was partitioned, and the east half conveyed to J. and the west half to W. Subsequently K. died, unmarried, devising her interest in the west half to W., and her interest in the east half to J. W. died unmarried, devising the west half to J. Held that, the devisees having exercised the powers given them as executors, J. became owner of the farm in fee, and not merely of a life estate therein.

Appeal from court of common pleas, Erie county.

Action by John A. O'Rourke against James M. Sherwin for specific performance of a land contract. Plaintiff had judgment for want of a sufficient affidavit of defense, and defendant appeals. Affirmed.

S. A. Davenport, for appellant. T. A. Lamb, for appellee.

THOMPSON, J. The question in this case is whether the appellee has tendered a good and sufficient deed for the land, and is, in consequence thereof, entitled to recover the price which the appellant agreed to pay for the same. It appears by the affidavit of defense that the title to this land was in Pat

rick O'Rourke, who died seised of it, and that by his will he devised it as follows, viz.: “I give, devise, and bequeath to my daughter, Kate O'Rourke, and my sons, John A. O'Rourke and William G. O'Rourke, all the real estate which I own, wheresoever situated, the same being the farm on which I reside in Millcreek township, Erie Co., state of Pennsylvania, being the same land conveyed to me by deed from Thomas H. Sill and wife; they, said Kate, John, and William, to hold the same as tenants in common for and during their natural lives, and the life of the survivor of them, with remainder in fee to the issue of them, said Kate, John, and William; said issue to take per stirpes, and not per capita; so that, in case of the death of either of said three leaving issue, the said issue would and shall take what their parent would have been entitled to, subject to the life estate of the survivor or survivors of said original devisees, Kate, John A., or William G." He authorized his "said children, Kate, John A., and William G., in case they all so desire, to sell and convey and give sufficient deeds for the whole or a part of said real estate above described, from time to time," and appointed them the executors of his will. It is also averred that "said Kate, John, and William O'Rourke, on the 17th of September, 1881, having, as. sole devisees of their father, been in possession thereof, each being then unmarried, and the land unincumbered, they did there make a family arrangement and partition thereof, in the negotiation and settlement of which all were parties, whereby the east half of said farm was thereafter to be the sole property of John A. O'Rourke in fee, and the west half thereof to be solely William O'Rourke's in fee, and the same was set forth in a writing of that date, assented to by all of said devisees, Kate, John, and William, executed by John and William, and acquiesced in by Kate, who was anxious for and fully agreed to the same." That "she, (Kare,) being in expectation of death, embodied the arrangement in her last will of same date, devising the east half of the farm to John A. O'Rourke, and west half thereof to William G. O'Rourke, which will, since her death, has been duly probated. Possession was afterwards taken of the west half of said farm by William G. O'Rourke, and maintained by him up to his death, September 4, 1886, and sole possession was also taken by John A. O'Rourke, and since maintained by John A., of the east half of said farm, and by him held to this time." Then occurs in it the following: "It being alleged in support of said deed that under said power of sale contained in Patrick O'Rourke's will, in the eighth item, before recited, 'that in case Kate, John A., and William all so desire, to sell and convey and give sufficient deed for the whole or part of said real estate, (the farm,) from time to time, that they were authorized to convey by will as well as deed, of the whole or part,

either by simultaneous, concurrent, or successive action,-that under this power, they being all agreed, as set forth in the contract of sale of September 17, 1880, made by John A. and William G. O'Rourke, and by the will of Kate O'Rourke, duly probated, that Kate O'Rourke, in her lifetime, agreed to said writing made in her presence, and on same day conveyed by her will one-third of the west half of farm to William G. O'Rourke. At the same time it is alleged that John conveyed one-third of the west half of said farm to William by writing, by him signed; that William conveyed thereof two-thirds of the west half, and his original third thereof, to John A. O'Rourke by his will of August 9, 1886, (since probated;) that this John A. O'Rourke became seised of west half of farm, and has agreed to convey all thereof to this deponent. It is also alleged that Kate conveyed one-third of eastern half of said farm, by her will of September 17, 1880, to John A. O'Rourke; that William conveyed one-third of the east half of said farm, by writing, to John A., September 18, 1880, and again, by his will of August, 1886, (since probated,) conveyed all his property to John A. O'Rourke. Thus, it is alleged, John O'Rourke became seised of Kate O'Rourke's third and William's third, and these two thirds, with his own third, made him the sole owner of the three thirds, or the entire east half of the farm, which he has agreed to convey to this de ponent by written contract of January 1, 1891, being the whole conveyed to John in parts from time to time, by which conveyance, it is alleged John O'Rourke owns all of the farm, and has a right to sell the same." Both the daughter and son died without children, while John, the survivor, has two children. The contention on the part of the appellant is that the appellee has only a life estate in the farm, and is not, therefore, entitled to recover, because he has not tendered a good, sufficient, and marketable title. If this title be doubtful, or if it be not marketable, the appellee is not entitled to recover; and whether he has such a title depends upon the estate devised, and the powers conferred by the will of appellee's father. In the use of the word "issue" in this will it seems clear that the testator intended children as a particular class, who are to take at a particular time. This intention is manifest from the phrase used: "Said issue to take per stirpes, and not per capita; so that, in case of death of either of the three leaving issue, the said issue would so take what their parent would have been entitled to, subject to the life estate of the survivor or survivors of said original devisees;" and also from the provision made for the use of so much of the land as may be necessary for the daughter, and authorizing a sale of one acre per year for that purpose. The word "issue" was without doubt intended to mean "children," to whom the gift is by way of remainder to take the fee, not immediately, but after the death of

the last survivor. They take as purchasers, and the original devisees took only a life estate.

In Robins v. Quinliven, 79 Pa. St. 335, it is said: "But if by 'issue' he meant 'children,' and intended that they should take by purchase, and not by descent, as heirs of their mother, then she took only a life estate. It is well settled that the word 'issue' in a will prima facie means heirs of the body,' and, in the absence of explanatory words showing that it was used in a restricted sense, is to be construed as a word of limitation. But if there be on the face of the will sufficient to show that the word was intended to have a less extended meaning, and to be applied only to children, or to descendants of a particular class or at a particular time, it is to be construed as a word of purchase, and not of limitation, in order to effectuate the intention of the testator. Slater v. Dangerfield, 15 Mees. & W. 263; Guthrie's Appeal, 37 Pa. St. 9; Kay v. Scates, Id. 31; Taylor v. Taylor, 63 Pa. St. 481; Kleppner v. Laverty, 70 Pa. St. 70. Apart from the prima facie meaning of the word, there is nothing on the face of the will before us to show that by issue the testator meant heirs of the body,' and intended that they should take by descent. The gift to the issue is not immediate, but after the death of the devisee for life; and there is no devise over in default of issue from which an estate tail can be implied. Besides, the gift of the remainder is not to the issue alone, but to the issue and their heirs forever, in the proportions to which they would be entitled under the intestate laws of Pennsylvania, respectively; that is to say, in equal shares, as tenants in common. The limitation to the heirs general of the issue, with the superadded words of distributive modification, clearly shows that by 'issue' the testator meant 'children,' and intended that they should take the remainder as purchasers, and not as heirs by de scent." In Cote v. Von Bonnhorst, 41 Pa. St. 251, it is said: "We spend no time in showing that under a devise to one for life, with a remainder to his or her children, the first taker has no freehold of inheritance. That such is the general rule is beyond doubt, and it is not denied by the complainants." In Walker v. Milligan, 45 Pa. St. 180, it is said: "The devise of the remainder was to his lawful issue, child, or children then living, or to the lawful issue of such child or children, as may be then (at the first taker's decease) dead, share and share alike. The gift was with words of distributive modification, and it was not to all the Issue of the devisee for life. The language is descriptive of persons, rather than of the character in which the remainder-men are to take; and the testatrix defined what she meant by the equivocal term 'lawful issue' by using as synonymous with it the words 'child or children.' By pointing to those who might be living at the decease of the

first taker, and by directing distribution, she manifested an intent to use the word issue as meaning child or children, rather than to use the latter words as words of limitation." In Curtis v. Longstreth, 44 Pa. St. 202, it is said: "It is plain that the testator intended that the remainder-men should take as purchasers, and not as heirs, unless a contrary intent is deducible from the last clause of the words of gift. He described them by an apt word' of purchase, i. e. 'children,' and therefore the first taker had only an estate for life." As the word "issue" was clearly intended by the testator in his will to mean "children," they take as purchasers, and the daughter and sons, as a consequence, took only a life estate in the farm. Bool v. Mix, 17 Wend. 119.

While they thus took a lite estate, there was given them the power, in case they should desire to do so, to sell the farm. It is alleged in the affidavit that in the exercise of this power of sale conveyances were made with the assent of the sister and of the two brothers, and that subsequently, by the wills of the sister and that of the brother, the title thus passed to the appellee. The conveyances thus adimitted by the appellant to have been made under the power, it is contended, were sufficient to pass the title to the appellee. It may be that such is the case, because the will contemplates the execution of the power of sale, and these transfers seem to meet its requisition, Leightner v. Leightner, 87 Pa. St. 148. Whether this be so or not it is unnecessary to determine in the view taken of this case. In this will it is provided that, in case the daughter and sons desire to sell and convey, they are authorized to do so. As this power was given to them, and as they were made executors, thus combining the authority and the power together, it was intended that the children should possess it, and, in the event of the death of any of them, it passed to the survivor or survivors. As they were the executors, it is clear that the power was to be executed by them as such. It would therefore follow that, as John alone survives, he has, as such survivor, the power under the will to make sale of the farm, and to make a good title to the same. The judgment is therefore affirmed.

providing that, no rule or ordinance shall at any time be passed to change or do away with the confession of faith, does not prohibit changes in the interest of clearness of expression, or fullness of statement, of the accepted doctrines of the church.

4. Under the constitutional provision of a church that there shall be no alteration of the constitution unless by the "request" of twothirds of the whole society, the request need not originate with the members of the society; but a proposed change may be laid before the society by its highest church judiciary, and, after the society has expressed its wish for such change, it may be made by such judiciary. 5. Where a proposed change has been submitted to the whole society by its highest judiciary for an expression of preference by yote, and ample time and opportunity afforded, an expression in favor thereof by over two-thirds of those voting will be treated as a request by two-thirds of the whole society.

Appeal from court of common pleas, Franklin county.

Suit by H. A. Schlichter and others against M. F. Keiter and others, wherein each party sought to restrain the other from interfering with them in the exercise of their respective offices in connection with the Church of the United Brethren in Christ at Greencastle, Pa. Decree for plaintiffs. Defendants appeal. Affirmed.

Following is the opinion of the court below, per Stewart, J.:

"The subject of this controversy is the house of worship owned by the congregation of the United Brethren in Christ at Greencastle, in this county. The building was erected by the congregation, out of voluntary subscriptions, upon a lot of ground acquired by the same means, and which was conveyed by deed bearing date 22d March, 1828, to one John Dome, who thereupon by deed, in which it is recited that the lot 'was purchased for the purpose of erecting a church for the United Brethren in Christ,' conveyed it 'to George Zeigler, Jacob Wingerd, Samuel Lenhard, and Solomon Moor, trustees of said congregation, for the only use and interest above described, and for no other purpose.' The parties to the contention, upon the one side and the other, are the office bearers and trustees of what, unfortunately, are now two distinct and separate congregations, each claiming, as against the other, the right to the exclusive use of the church property, as being the only true congregation of the United Brethren in Christ at Greencastle. Both alike make their appeal to the civil power; each insisting that the other is an intruder, and asking that it be restrained from further interference with the other's rights.

the congregation of the United Brethren in Christ at Greencastle, and those persons constitute the congregation who are in connection and correspondence with that body which is the true general conference of the church. It is with the rights of property that we are dealing, and these rights can be determined only by the relations which the contending parties sustain to the Church of the United Brethren in Christ.

"Several considerations agree in giving to the plaintiffs the advantage of a prima facie case.

There is the fact of uninterrupted succession in, and controlling action of, the conference to which they are adherents. That the body which met at York was the general conference of the church is not questioned. There is no complaint that it was irregularly or improperly constituted. Of the one hundred and thirty members who composed it, at least one hundred and ten continued to the end, participating in its work, and maintaining their allegiance to its organization. The general machinery of church organization has remained under its control, as has the management of the charities and temporalities of the church. It has continued to command the allegiance and support of a large majority of the bishops, ministers, and laity of the church, and by far the greater number of the local churches continue their connection with it, accepting the new confession of faith, and submitting to the government of the revised constitution. The majority of the members of the Greencastle congregation support it. The act of withdrawal from this general conference was the act of those who composed the conference to which the defendants adhere. Urder this state of facts, we may start with the presumption of regularity in that division of the church here represented by the plaintiffs, and which, for purposes of convenience, we shall designate as the 'Liberals,' since, if that is not their adopted name, it is the one by which they have come to be generally known; and call upon the defendants, who represent the division known in the same way as the 'Radicals,' to make good their claim to legitimacy. This, by their answer and cross bill, and the evidence offered, they claim to have done, and it is for us now to inquire how far they have succeeded.

"The immediate cause of separation was the adoption of the new constitution and the new or revised confession of faith by the general conference of 1889. The Radicals reject both, maintaining their organized existence under the constitution of 1841, and observing the confession of 1815 as their only rule of faith. Their contention is, first of all, that the inheritance and succession is in them, because they are identical in faith and practice with the original historic Church of the United Brethren in Christ; that, although a minority, they are the only existing organization that recognizes the con

stitution which has been the law of the church since 1841, and accepts the confession of faith which the church adopted and proclaimed in 1815,-a position which, however important as part of the defendants' case, would not, of itself, be conclusive of the controversy, no matter how well sustained, as will appear subsequent; and, secondly, that the Liberals, through the conference to which they adhere, have, by a proceeding irregular and revolutionary, adopted a new and different constitution from that which was and is the law of the church, and have adopted and proclaimed a new and different standard of faith from that which the church had always observed, and that by so doing they have formed a new and different religious society, and so forfeited all claims to recognition as the Church of the United Brethren in Christ. The first position, as I have stated it, may be conceded. The Radicals do adhere to the old confession, and do observe as the law of their organization the old constitution, both in all their literalness; and they are the only society of which this can be said. The inconclusiveness of this, however, will appear further on. It is the second proposition which challenges and invites investigation. It suggests two distinct inquiries: First, as to the change in the constitution; and, second, with respect to the change in the confession of faith. We shall observe this order in their consideration.

"Two general objections are made to the action of the general conference with reference to the constitution: First, that the change was not made in accordance with the laws and usages of the church; and, second, that certain provisions of the old constitution, which were therein declared to be inviolable, have been so altered and amended as to work a virtual repeal of the original provisions. In the view we take of the case, it is unnecessary to discuss, or even indicate, the points of difference between the old and new constitutions. It is enough to say that they do not in any serious manner affect the internal order and government of the society. The gravamen of the first objection lies in the alleged disregard of the fourth section of article 2 of the old constitution, which provides that 'there shall be no alteration of the foregoing constitution, unless by request of two-thirds of the whole society.' It is undoubtedly true that both the idea of revision, and the scheme for its accomplishment, originated with the general conference of 1885, held at Fostoria, Ohio. It had no request of any kind before it, looking to this end. That conference created the commission, of its own motion, 'to consider our present confession of faith and constitution, and prepare such a form of belief, and such amended fundamental rules for the government of the church in the future, as will, in their judgment, be best adapted to secure its growth and efficiency in the work of evan