
    Wharton against Fisher and another, administrators of Wharton.
    CASE stated as follows :
    “ Venditioni Exponas to March Term, 181 5. “ It is agreed, that the sum of 4302 dollars 83 cents be considered as in Court, and subject to the opinion of the Court upon the following case
    “ On the 5 th day of April, 1800, Thomas Parr Wharton and John Wharton, theretofore trading under the firm of Thomas P. Wharton and Company, assigned, “ All their, the said “ Thomas P. Wharton and John Wharton, junior’s, real and “ personal estate, whatsoever and wheresoever, and all their “ estate, right, title, interest, property, claim, and demand, “ either at law or in equity, of, in, to, or out of the same, or “ any part thereof,” to Isaac Wharton, in trust for the payment of the creditors of the said Thomas P. Wharton and Company, (prout assignment.)” • ■
    “At the time of the execution and delivery of the said assignment, the said firm of Thomas P. Wharton and Company, were not. the owners of, or entitled to, any real estate whatsoever.” < ^ « ‘
    “On the said 5th day of April, 1800, Thomas P. Wharton was (inter alia) the owner of, and entitled to, an undivided moiety (subject to the life estate of Owen Jones therein',) of a lot of ground, stores, and wharf, situate on the east side of Water street, between Chesnut and Walnut streets, in the city of Philadelphia, being the same premises mentioned in the venditioni exponasP , 3 < • < *
    “ Thomas P. Wharton died in the year 1802.”
    “To December Term 1812, the abpve named John Wharton, having previously paid the debts of the said Thomas P. Wharton and Company, and the said assignment of the 5th of April, 1800, having been previously returned to him by Isaac Wharton, commenced an action of Account Render against James C. Fisher and Francis R. Wharton, administrators of Thomas P. Wharton, deceased, in which such proceed- . 1 j ^ i * ‘ ings were had, that on the 7th day of July, A. D". 1814, judgment was entered in favour of the said John Wharton, for the sum of 21,276 dollars 37 cents-, (firout the record.)”
    
      i \ - _ A and B partners in trade, conveyed to C, “AU ■their, the said víand B?s reed ■and personal estate, whatsoever and wheresoever, &c.iJ in trust to sell the name, collect •the debts due to the partnership, and ' out of the proceeds of the sale and the •debts collected, to pay the debts of the Jirm. The • deed recited •an intention to ■ provide for the payment of Ih (¡joint debts, but nothing; was said < of an intention ^ to pay the se*p&rate debts « of either part- ‘ ner, and throughout , theinstrument their names 3 were mentioned together. < At the time of • the assignment, the < partnership did not hold * any real property, but A was the owner of a real estate . in his separate 1 capacity. j
    
      Held, that the separate real estate of A passed by the ¿íssignment.
    
      “Under a venditioni exponas issued in this suit, the interest of the said Thomas P. Wharton, in the above described lot, stores, and wharf, were, by the sheriff of Philadelphia county, sold to John Wharton, on the 7th February, 1815, for the sum of 4500 dollars, fir out the record and deed.)”
    “ Thomas P, Wharton was separately indebted to Isaac Wharton, in the sum of 666 dollars 66 cents, by bond bearing date April 3d, 1788, on which interest was paid up to April, A. D. 1795, but no payment has since been received,, and the said debt, with the interest since accruing, still remains wholly unsatisfied.”
    ¿‘To December Term, 1813, an action on the case was commenced by Joseph Wharton, against the said James C. Fisher and Francis E. Wharton, administrators of Thomas P. Wharton, deceased, in which such proceedings were had, that on the 31st day of March, 1815, judgment was entered' in favour of the said Joseph Wharton, for the sum of 107 dollars 84 cents, being the amount of funeral expenses and physicians’ bills, paid by Joseph Wharton, who was the father of Thomas P. WhartonF
    
    “ Thomas P. Wharton died insolvent.”
    ■ “The question submitted to the Court is, whether the monies proceeding from the sale of the premises shall be paid to the plaintiff, John Wharton, or be subjected to legal distribution, according to the act of assembly, entitled, “ An “ act directing the descent of intestates’ real estates, &c.” passed the 19th April, 1794.” •'
    The assignment recited the inability of the firm of Thomas P. Wharton and Company to pay their debts, and a desire to-discharge them as far as possible. It then transferred to-Isaac Wharton, “ All their, the said Thomas P. Wharton • “ and John Wharton, junior’s, real and personal estate, what- “ soever and wheresoever”’ &c. in trust to sell and dispose of the same, and to collect the debts due to them '•‘■for. the•' “firm afo re'-s aid F and after having satisfied a certain preferred creditor of the partnership, to distribute the proceeds of,the sale and the money collected equally among their creditors. If a surplus should remain, after satisfying all their creditors, it was directed to be “ returned, reconveved, and as- “ signed,” to “ the said Thomas P. Wharton-ecnd. John Whar- , “ ton, jun. their executors, administrators, and assigns.” The deed contained a power of attorney from Thomas P. Wharton and John Wharton, jun. to Isaac Wharton, for the collection of their debts, and invested him with all the authority-belonging to them “ or either of them,” for that purpose.
    
      B. Tilghman and Binney, for the plaintiff.
    
      John Wharton, having paid the debts of the firm, is entitled to the benefit of "' whatever funds passed by the assignment for the payment of partnership debts, upon the principles of Miller v. Ord,
      
       and ex parte Crisp.
      
       The only question then is upon the construction of the deed. Did the separate, real estate of Thomas P. Wharton pass ? The rules of construction are perfectly settled. In the construction of a deed the great object is to effectuate the intention of the parties. Although the Court is not authorised to alter the language of an instrument, yet wherever they can discover what the substantial intention was, they are bound to give it such a construction as will support that intention, nt res magis valeat quani pereat. Stapleton v. Stapleton,
      
       Smith v. Parkhurst, ---v. Bailey,
      
       Co. Litt. 36. a. The intent of the grantors in the present case, may be collected both from the language of the deed and from extrinsic circumstances. The assignment expresses an intention to pay all their debts as far as lay in their power; and as the separate estate of each was liable to the payment of their joint debts, and it does not appear that they owed any separate debts, it must be supposed the)'- intended to apply the separate estate to the discharge of the debts of the partnership. For the discharge of those debts, they grant all their real estate ; the plain meaning of which is, all that they or either of them had. Unless this construction be put upon the instrument, all those parts of it which relate to real property, must be rejected as insignificant, because the partnership owned no real estate. It cannot be said, with propriety, that the grantors were ignorant, whether or not they possessed property of this description, because every man who undertakes to convey an estate is supposed to know the nature of that estate. The power to sell the real.estate, too, which is given in the first'trust, would have nothing to act upon, and of course would be nugatory if the separate real estate did not pass. There is no-thins; in the resulting trust inconsistent with this intention ; o o for it was not designed, that the real estate should come back specifically to the grantors. It was directed to be sold; and it was perfectly proper that the money remaining after discharging the debts should be paid to both partners, who might settle the account between themselves. The power oí attorney too illustrates the intention of the parties in giving to the assignee all the powers of the assignors, of either of them,
    Rawle, for the defendants,
    agreed the law as laid down by this Court in Miller v. Ord, and did not deny the rules of construction deduced from the cases cited, but contended, that the intent was to pass only partnership property, to be applied to the payment of partnership debts. This was evident from the whole language of the assignment. The recital at the commencement of it, declared, that the assignors were indebted as partners; the expression throughout was their estate; the trust mentioned no separate debts to be paid by the trustees, and the debts due to the assignors were said to be due to them as partners: There was not in fact a single expression in the deed which indicated an intention to pass separate property. A strong circumstance to shew an opposite intention was, that after paying the debts of the partnership, the residue of the estate was directed to be returned, reconveyed, and assigned to the grantors, their executors, administrators, and assigns. It could hardly be sup-: posed, that it was intended the separate estate of one partner should be reconveyed to the two partners jointly; yet if the separate estate was embraced in the instrument, that conclusion followed., The power of attorney afforded no proof of a design to transfer the private estate of Thomas.P. Wharton; it was confined to the collection of debts, and it was quite right to give to the assignee all the powers that belonged to the assignors or either of them; in relation to that subject, because either partner might receive, or release partnership debts. Nor was there any force in the argument derived from the circumstance of the jirm not owning real estate. A yery good reason might be assigned, why it was mentioned in the deed, although it turned out that the partnership had' none. The intercourse which takes place between commercial houses here and persons residing at á distance, frequently rendered it necessary to employ agents for the collection of mo- ,. ... . , . , ney, who are often obliged to make compromises, and sometimes to receive lands in payment of, or as security for debts. The assignors, therefore, probably did not know, whether or not, at the time of the assignment, they were holders of real estate, and very properly included in their assignment any property of that kind which they might possibly have had. That John Wharton did not suppose the separate real estate of his partner passed, was evident from his not having applied for the sale of it; and that Isaac Wharton entertained the same opinion, was to be inferred from his having made no effort to dispose of it, though if it passed he was enjoined by the trust to do so. '
    
      
       2 Binn. 382.
    
    
      
       1 Atk. 135.
    
    
      
       1 Atk. 8.
      
    
    
      
       3 Atk. 136.
    
    
      
      
        Cowp. 597.
      
    
   Tilghman C. J.

This case depends on the construction of a deed from Thomas P. Wharton, deceased, and John Wharton to Isaac Wharton, deceased, by which the grantors conveyed to the said Isaac, all their real and personal estate, on certain trusts expressed in the said deed. The question is, whether the separate real estate of Thomas P. Wharton passed. The words are comprehensive enough to include, not only the joint, but the separate real estate of the grantors. But the difficulty arises from this circumstance; that the grantors had, before the date of the deed, been partners in commerce, known by the name of Thomas P. Wharton and Company, and throughout the deed their names are mentioned together. They had been unfortunate in their business, and the deed recites an intention to provide for the payment of the debts due from, the partnership, as far as in the grantors' lay. Had there been any real estate belonging to the partnership, I should have been strongly inclined to the opinion, that no other than partnership property passed. But as there was no real estate held in partnership, all those parts of the deed which relate to real estate must be rejected as insignificant, unless the separate estate passed. It was supposed by the grantors, that real estate was conveyed, because, not only is it mentioned in the grant, but the first provision in the trust is, that Isaac Wharton shall sell it and apply the nett proceeds to the payment of debts, &c. In answer to this, it is said by the defendant’s counsel, that the grantors might not have known with certainty, whether they held real estate or not; because it is customary for the agents of commercial houses to take conveyances of lands in satisfaction of debts , . , , . ,. due.to their principals, from debtors residing at a distance. But this remark is not satisfactory. It must' be supposed, that persons who execute conveyances of their estates, know of what those estates consist, and that they would not make use of expressions applicable only to a kind of property, not intended to be conveyed. It is a sound rule, that where words are doubtful, they shall be taken most strongly against the speaker; and that such a construction shall, if possible, be made, as will give some operation to all the words. It is ■ worthy of remark, that in no part of this deed is any intention expressed.of paying the separate debts of either of the partners, and that the whole property conveyed, giving the fullest extent to the words, “ their real and personal estate,” falls short of the debts due from the partnership, which it was the avowed object of the deed to satisfy, to the utmost ability of the grantors. It was urged as an argument against the passing of the separate real estate of either of the partners, that in case there should be a surplus, after paying all. the debts, it was to be returned and reconveyed to the grantors jointly; but to this it was answered, that it was intended'the trustee should sell the real estate, and then the surplus, if any, would be money, which it would be most proper to return to both the partners, who might afterwards settle the account between themselves. Upon the whole, it is a question of intention, and I am of opinion, that the separate real estate of Thomas P. Wharton passed. 1. Because, it must be taken for granted, that the grantors were acquainted with their own estates. 2. Because, they could not be ignorant of the meaning of the words real estate; and, 3. Because, unless the separate real estate passed, all those parts of the deed, relating to real estate, must be rejected.

Yeates J.

No rule of law is more adapted to the common reason of all mankind than that in judging of a writing, we must take the whole into consideration, and assign to each clause and word contained in it, their rational distinct meaning, if this can possibly be done. In the premises of this indenture, we find that Thomas P. Wharton, and John Whar ion, jun. conveyed and transferred to Isaac Wharton, his heirs, executors, administrators, • and assigns, all their real alld personal estate, whatsoever and wheresoever, &c. IIa~ bendura, in trust, to sell and dispose of all and singular the rea-l find personal estate aforesaid, &c. The words real estate have a plain definite signification, and as the company "were not'the owners of any lands, they can only be satisfied by supposing the deed to include the undivided moiety of the lot of ground, stores and wharf, stated in the case. To this it is objected, that such a construction would work injustice, .since by a subsequent clause it is directed, that if any surplus of the assigned premises should remain after satisfying the creditors of the firm, it should be well and truly returned, re-conveyed, and assigned by the trustees, to the said Thomas P. Wharton and John Wharton, jun. And it has been argued, that as it would be highly inequitable to reconvey the separate estate of one partner to two partners, jointly, after payment of the debts of the company, their introduction of the real estate into the deed of trust was either mere accident or a cautionary measure to include mortgages, &c. To this it has been properly answered, that although the surplus property is to be reconveyed and transferred to both partners, it does not necessarily follow, that it is equally to be distributed between them. The share of each can only be determined on a fair statement of their respective accounts with the partnership, and whether the surplus consisted of realty or personalty, the legal conclusion would be the same. We must remember, that the separate property of each partner is- liable to the debts of the firm, and many instances have occurred wherein one partner, from his superior ability, has paid more than his proportion of the company’s debts. I cannot ascribe the introduction of real estate into this indenture as the effect of accident, and feel myself bound to consider it intentional. The trust deed was functus ojfcio upon John Wharton paying off the debts of the company, and was accordingly returned to him. Hereupon a resulting trust arose for his benefit, and I am therefore clearly of opinion, that the monies proceeding from the sale of the premises ought to be paid tp him.

Brackenridge J. concurred.  