
    Levan et al. v. Bickel.
    A father made a deed to a daughter wherein was a recital that the deed! was subject to a dower to the widow of William Traut, deceased, during her natural life, and after her decease the principal to be paid to the heirs and legal representatives. At the time the deed was executed, the validity of this dower was in question. Subsequently, the supreme court decided that it was not a charge upon the land. The heir of William Traut afterward brought this suit making-use of the name of the executors of the grantor in the deed, as legal plaintiffs. The defendants offered evidence to the effect that the grantor in the deed said that his daughter need not pay the principal of the dower, upon the death of the widow, if she would contest it. The court refused to charge that, under all the evidence, the plaintiffs were entitled to recover. The court, in the general charge, said that the defence asked the jury to infer that when the grantor put the charge in the deed he meant the same thing as was set forth in the will and, as the charge in the will was no lien, the charge in the deed amounted to nothing; the jury, from that evidence, would have a right to infer that and find that fact; and, if, from the evidence, they so found, the defendants would be entitled to a verdict. Held, not to be error.
    _ Per Curiam : The plaintiffs are attempting to recover upon a misfalcen recital in a deed to which they are neither parties nor privies, and for which they have never paid any consideration. The dower recited in the deed was not created by that instrument; it was merely supposed to exist and its recital was perhaps a mere blunder of the conveyancer.
    
      Query, whether, where a conveyance is made to a married woman, and the grantor dies, in a suit against the wife upon a covenant in 1he deed, the evidence of the husband is competent for the wife under the Act of May 23,1887, providing that when any party to a thing or contract in action is dead no surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the right of such deceased, shall be a competent witness to any matter occurring before the death of said party.
    March 7, 1889.
    Error, No. 67, Jan. T. 1889, to C. P. Berks Oo., to review a judgment for defendant in an action of debt by W. S. Levan et al., executors of Charles Levan, deceased, to the use of Esther Schmehl, and of Daniel T. Schmelil, administrator of Maria Traut, deceased, against ¥m. B. Bickel and Melvina Bickel, his wife, at Jan. T. 1885, No. 63. Green and Clark;, JJ., absent.
    The facts appear in the charge of the court, infra. The plea, was payment with leave, etc.
    At the trial, defendant proposed to prove that Daniel Buskirk was the scrivener who drew the deed from Charles Levan to his-daughter, the defendant; and that he drew this deed at the instance of the said Charles Levan, and the said Charles Levan in his instructions to him for the drawing of this deed, said, in substance, that he desired to have the matter so that his daughter, Mrs. Bickel, should pay the interest to the widow Traut for life, but that, after the death of the widow Traut, if she did not desire to, she should not be obliged to pay the $1,200, or the principal sum; that he said that the widow"Traut was needy, and he wanted her to have the $72 every year as long as she lived, but that he,did not want to oblige his daughter to pay the $1,200 after the widow’s death, if she did not desire to.
    Objected to by plaintiff as entirely incompetent to reform or amend the deed; it is not alleged that there was any mistake made in the writing of the deed ; or that it is proposed to prove that there was any mistake made in the writing or execution of the deed; secondly, because a written instrument signed by a party cannot be altered or varied by parol except in cases of fraud, accident or mistake, nteither of which is alleged to have occurred at the execution of this deed.
    Mr. Derr : The purpose is to show that it was not a gift as to the principal sum of $1,200, and that it was not the intention of Charles Levan to estop his daughter from asserting what was the fact, namely, that there was no dower charged upon said property, and that he intended that this $1,200 should be given to either his daughter or the plaintiff in accordance with the wishes of his daughter; also for the purpose of showing the identity between the $1,200 mentioned in the will and that mentioned in the deed.
    Objection overruled, and exception. [1]
    Defendant proposed to prove by W. S. Levan on the stand that he is one of the executors of Charles Levan, deceased ; that a short time prior to the death of Mr. Levan there was a family arrangement, under which Mr. Levan conveyed to his children cer- • tain properties as part of their inheritance by anticipation ; that under that arrangement it was that the deed, with regard to which Daniel Buskirk testified, was executed; that at about the time of the execution of the said deed, Mr. Levan had a conversation with the witness, in which he stated to the witness that Mrs. Bickel, the defendant, was dissatisfied with the price or value put upon the said property, which was to be conveyed to her, saying that it was high because the farm was not in first-class order, some of the land was stony and indifferent, but Mr. Levan said it was all right, because Mrs. Bickel, if she did not want to, need never pay the $1,200, which was claimed to be a dower or lien upon the said property; that if she desired to contest the same she would never have to pay it; and that with that understanding the deed in question was made ; this for the purpose of showing that it was not the intention of Mr. Levan, by the said deed, to create an obligation upon the defendant, Mrs. Bickel, to pay the said $1,200, nor was it his intention to make a gift of it to the plaintiffs, and also for the general purposes of the case.
    Mr. G-reen : Plaintiff objects. First, because the testimony is entirely incompetent to affect the written instrument or in any way to vary or contradict it. Second, that, before a written instrument can be affected by parol evidence, it must be of what occurred at the execution of the instrument, the allegation in this offer being that it was some time before Charles Levan’s death. Third, that you cannot give in evidence the intention of any person from the declaration of their intention; it must be an inference by the jury from what took place at the time the deed was made or the instrument was executed. Fourth, because the witness is incompetent, being an interested party in the case, the assignor of the contract being dead.
    
      Objection overruled, and exception. [2]
    Defendant proposed to prove by Wm. ft. Bickel that he was present at the time that the deed of Charles Levan to Melvina Bickel was delivered, and that Charles Levan at that time, and as part of the delivery of the deed, said that Mrs. Bickel should pay the interest upon twelve hundred dollars to the widow Traut, as long as she, the said widow, lived, but, after her death, if she did not want to and chose to contest it, she need not pay the twelve hundred dollars, or principal sum.
    Objected to because the witness is incompetent on account of the death of Charles Levan, a party to the contract, under the Act of 1869. Objection overruled, and exception. [3]
    After the defendant’s case was closed and the above testimony received, the plaintiff moved the court to rule out the testimony submitted by the defendant, on the ground that it entirely failed to meet the proof of the claim which the plaintiff had presented and submitted to the jury. Motion overruled, and exception. [4]
    The court charged as follows, by Ermentkout, J.:
    “ On Oct. 6, 1881, Charles Levan made a deed to Melvina Bickel, his daughter, for certain real estate, situate in Maidencreek township. The consideration expressed in the deed is the sum of $5,675, less a dower of $1,200; and in the body of the deed appears the following clause:
    “ ‘And subject, nevertheless, to the payment of a dower of one thousand and two hundred dollars, the interest thereof to be paid annually to the widow of William Traut, deceased, during her •natural life, and, after her decease, the principal to the heirs and legal representatives of the said deceased.’
    “ The plaintiffs come into court, and, by virtue of this clause, •ask a verdict at your hands. They claim that they are the heirs and legal representatives of William Traut, deceased, and they use the names of the executors of Charles Levan, and the record reads, ‘ The Executors of Charles Levan, for the use of Esther Schmehl ■and of David Schmehl, administrator of Maria Traut, deceased.’ They base their right to recover in this case upon this clause, alleging that, by the terms of this deed, the real estate conveyed to Melvina Bickel was made subject to paying this sum of $1,200, in manner and form as stated in this clause.
    “ In order to prove that they are the parties mentioned in this deed, they place in evidence the will of William Traut, and they call Franklin Maehemer and William T. Schmehl as witnesses to show their relationship to the parties who are mentioned in this deed, and they say that, being those parties, they are entitled to the whole of this money.
    “ It would appear, from the will of William Traut, that he was the owner of land in Maidencreek township; that, having made his will, lie died, and, in that will, made a bequest of his property to one David Traut, the son. David Traut becoming embarrassed, made an assignment for the benefit of creditors to James H. Schmeck, and James H. Schmeck, as the assignee of David Trant, «old to Charles Levan, and Charles Levan thereupon executed this deed which has been placed in evidence before you.
    “ If this case rested solely upon the deed offered in evidence, there might be probably no serious question as to the right of the plaintiff to recover in this case; but there is evidence in this case to which your attention must be given, and it is alleged, on the part of the defendants, that, by the will of William Traut, there was a legacy or devise made, and that, at one period of time, there was a claim raised that, by virtue of the clause in that will, a charge had been created upon this real estate, for the benefit of the widow of William Traut, and the parties who appear here as plaintiffs. In the deed from David Traut to Schmeck, the assignee, and in the deed from Schmeck, the assignee, to Charles Levan, there is no mention whatever of any charge. It appears that, when Charles Levan bought of the assignee, and the' deed was about to be executed, he said to the attorney or scrivener who had the matter of the execution of the deed in charge, that they should leave out the reference to the $1,200, [that he would pay the widow the interest as long as she lived, and after that he would try the question once, he ‘ would see about it and try it once whether there was anything due or not.’] [6]
    
      “ The question to which the court will direct your attention is: First, the nature and character of the devise in the will of William Traut. For, under the instructions of the court, that is not a question for your determination. The supreme court have judicially passed upon that question, and they have said that, under that will, no lien was placed upon this land; that the land was not made subject to this charge, and that, therefore, Charles Levan bought the property at the assignee’s sale perfectly free from any charge that was supposed to have been created in the will of William Trant; and that, therefore, in point of law, and in fact, when he received the deed from the assignee, there was not a particle of obligation on his side to pay to the plaintiffs one cent of money.
    
      “ Therefore, when Charles Levan came to convey that property to anybody, if he had made the ordinary conveyance, he would have conveyed it free of any charge. But there .appears in this deed to Melvina Bickel, the language which I have read to you from the •deed.
    [“ The first inquiry which the jury will make is, to what did this clause in this deed have reference ? The word dower is used, the widow of William Traut, deceased, is referred to, and the first inquiry to which the jury will direct itself is, to what did this matter refer? Did Charles Levan intend to subject this property to the •charge mentioned in this deed, regardless of the fact that, as a legal point, the will of William Traut had not subjected the property to .anything of the kind. We have already adverted to the testimony introduced by the defendants as to the declaration of Charles Levan that he would pay the interest as long as the widow lived, and after that he would try it and see about it and try it once.
    
      “ Therefore the question is whether Charles Levan, when he came to have this deed written, did intend to make this property subject to this charge whether the law made it so or not?] [1] What are the facts bearing upon that question?
    “It appears from the evidence, first, of Wellington S. Levan, that there was a family arrangement under which his father deeded some of his property to each of his children, as part of their inheritance, and [he testifies before you that this deed to Melvina, his-sister, was delivered to her in pursuance of that family arrangement] ; [6] that he, Charles Levan, said half a dozen times, or more, that that amount, that dower, need never be paid, provided his sister or his brother in law would stand a suit on it, or go to court; that they were cot well pleased with what had been given them; that the appraisement or valuation of this property was too high, but that he added that the dower need never be paid if they would test it, and that this he said as an answer to their complaints.
    “ Judge Buskirk went upon the stand and testified that Charles Levan came to him and told him that he should put in a dower of twelve hundred dollars; that he wanted the old lady, Mrs. Traut, to have the interest on that during her life; that she was in needy circumstances, and, after her death, if the Bickels chose to contest it, they need never pay the principal; and that it was in consequence of these directions that he inserted the clause, £ and ’ — and this is his language — £ and it seems I took the usual form.’ He was-asked, upon cross-examination, whether the words used by Mr. Levan were not ‘ he said that I should put the charge in the deed, and if Bickel chose to fight about it, he did not suppose he would have to-pay itand he said that that may have been the substance. It is very nearly like to what he had said before. Further on, in his testimony, he also says that Mr. Levan stated that he had a copy of the will of William Traut; that he had taken legal advice and he was satisfied it was not a charge upon the real estate; that he wanted his daughter to pay the interest for life, but after the widow’s death she need not pay the principal if she did not want to, if they chose-to fight about it or test it.
    “William Bickel, when he is placed upon the stand, says that he-received the deed from Charles Levan, who told him that Mrs. Bickel need not pay the twelve hundred dollars if she chose to-fight it.
    “ The plaintiff also gave in evidence the will of William Traut and a notice which was read at the assignee’s sale, and he offered that to prove that Charles Levan knew of the will and that he had reference to the will when he executed the deed. The notice which was read at the assignee’s sale in the presence of Charles Levan is-as follows:
    “ 6. Notice is hereby given that the real estate about to be sold by James Schmeck, assignee of David Traut, was devised to-the said David Traut by his father, William Traut, subject to a testamentary charge of seventy-two dollars per year, payable to Maria,. widow of said William Traut, deceased; and also subject to the payment of twelve hundred dollars to Esther, wife of Jacob F. Schmehl, after the decease of the said Maria; and that the said charge of seventy-two dollars per year for the past three years is now due and owing to Maria Traut, widow of William Traut, deceased.
    (Signed). Esther Schmehl.”
    “ In the plaintiff’s narr in this case there is a clause referring to this dower of $1,200, and also making reference to the will of William Traut, and that, by the will of William Traut, Esther Schmehl is made the sole legatee of this $1,200. From the offer of these facts, for the purpose of showing that Charles Levan had reference to the will when he executed this deed, and the testimony of Bickel, Levan and Buskirk, the jury would have a right to infer and to find that this clause, which is mentioned in the deed, refers to the same subject matter mentioned in the will, and that it was intended, from the conversations of all the parties, as a reference to that.
    “ [At the time this deed was executed, the question whether, under the will of William Traut, the land was charged with the $1,200 was not yet decided. It was an open question, and the defense ask the jury to infer from this testimony that when Charles Levan put that clause in the deed he simply put it in as a statement of the ordinary charge which was supposed to exist upon this land by virtue of the will; and they ask you to infer from that testimony that he meant by this clause in the deed precisely the same thing as was set forth in the will; and that if the alleged charge in the will amounted to no lien — there being no money paid for the charge in the deed — the charge in the deed also amounted to nothing.
    
      “ The jury from that evidence would have a right to infer that, and find that fact; and if, from that evidence, they do find that they are one and the same thing, the law having declared that the charge on the land is no lien, the defendant would be entitled to a verdict.”] [8]
    The plaintiffs presented the following point:
    
      “ Under all the testimony in the case, the plaintiffs are entitled to recover, for the use of Esther Schmehl, twelve hundred dollars, with interest from April 6, 1883, and the sum of seventy-two dollars, with interest from April 6, 1883, for the use of David T. Schmehl, administrator of Maria Traut, deceased. Ans. Refused.”
    Yerdict and judgment for defendants.
    
      The assignments of error specified, 1-4, the rulings on the evidence, quoting the bills of exceptions but not the evidence; 5, the answer to plaintiffs’ point, quoting it; and, 6-8, the portions of the charge included within brackets, quoting them.
    
      A. G. Green, with him Rothermel & Bro., for plaintiff in error.
    The declarations of Charles Levan were inadmissible. Fisher v. Deibert, 54 Pa. 460; Wallace v. Baker, 1 Bin. 610; Reichert v. 
      Castator, 5 Binn. 109; Cozens v. Stevenson, 5 S. & R. 421; Ellmaker v. Franklin Fire Ins. Co., 5 Pa. 183; Miller’s Ap., 40 Pa. 58.
    The testimony of Bickel was improperly admitted. Taylor v. Kelly, 80 Pa. 95.
    There is no sufficient evidence of fraud, accident or mistake as furnishing a ground for reforming the deed to be submitted to the-jury. Leaving out the testimony of Buskirk and of "Wellington S. Levan as clearly inadmissible, there is nothing but the unsupported testimony of Bickel, who simply testifies to Mr. Levan’s declaration as the $1,200 charge contained in the deed. Even if the witness’s-testimony was of a character to reform the deed, it lacked one essential element. The law requires two witnesses to affect a written instrument. Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Juniata Building Association v. Hetzel, 103 Pa. 508; N. & W. B. R. R. v. Swank, 105 Pa. 561; Philipps v. Meily, 106 Pa. 536; Jackson v. Payne, 114 Pa. 67; Sylvius v. Kosek, 117 Pa. 67.
    From the last assignment of error, it appears that the court left nothing to the jury. Cooper v. Whitmer, 18 W. N. C. 376.
    
      Cyrus G. Derr, for defendant in error.
    The recital in a deed that the property conveyed is subject to a dower in favor of one-who is neither party nor privy to the instrument, and when it is evident that the dower mentioned is not one sought to be created by the deed, but one supposed already to exist, does not render the-grantee liable to an action of covenant upon the deed at the instance-of the person who, in the recital, is said to be entitled to the dower. The remedy of such person must be upon the record or instrument originally creating the dower, and if the recital be erroneous and a dower charge does not exist in fact, the person named as entitled to the dower is without right, and, therefore, without remedy.
    The conveyance to the defendant was an advancement, and the case is governed by the rules of law relating to advancements, and though, upon the face of it, an obligation arises upon the part of the. defendant to pay the $1,200, yet the said obligation may be avoided, and the money shown to have been an advancement, at the option of Mrs. Bickel, by competent testimony, as in other cases. Merkel’s. Ap., 89 Pa. 343.
    It is manifest, from the testimony, that the subjective clause in the deed in question was inserted by mistake upon the part of the scrivener, and the legal'consequence is that the deed must be reformed. so as to make it accord with the intent of the grantor. Huss v. Morris, 63 Pa. 372.
    Where a conveyance is made to a married woman, and the. grantor dies, in a suit against the wife upon a covenant in the deed,, the husband may, under the provisions of the Act of May 23, 1887, be a witness for her, because he is neither a party to the contract nor interested adversely to the right of the deceased grantor.
    
      Rothermel Bros. and A. G. Green, in reply.
    The action in this case is not covenant, but debt, which will lie on an instrument of writing signed only by the grantor. 1 Chit. PI. 108, 109, 110.
    
      Debt lies on any contract in which the certainty of the loan appears. Dubbs v. Finley, 2 Pa. 397; Maule v. Weaver, 7 Pa. 329; McCracken’s Est., 29 Pa. 426; Walker v. Physick, 5 Pa. 202.
    Tiie beneficiary had a right to sue in the name of the executor. Strohecker v. Grant, 16 S. & R. 237; Campbell v. Shrum, 3 Watts, 60.
    The conveyance to Mrs. Bickel was no advancement, in the ordinary meaning of that term. Advancements apply only in intestate estates, not in cases of testacy and conveyances of real estate in the lifetime of the testator.
    There is nothing by which to reform the deed except the possibly mistaken opinion of the grantor as to the effect of the words creating the charge. The case of Huss v. Morris, 63 Pa. 372, is, therefore, no authority.
    When there is no ambiquity in an agreement, parol evidence of the intention of the parties is inadmissible. Litle v. Henderson, 2 Yates, 295; Shepherd v. Watson, 1 Watts, 35; Stub v. Stub, 3 Pa. 251; Kennedy v. Plank Road Co., 25 Pa. 224; Druckenmiller v. Young, 27 Pa. 97; Fisher v. Deibert, 54 Pa. 460; Martin v. Berens, 67 Pa. 159.
    Nor is parol evidence admissible to vary a written agreement unless a particular stipulation was left out by fraud, accident or mistake. Heebner v. Worrall, 38 Pa. 376; Harbold v. Kuster, 44 Pa. 392; Collins v. Baumgardner, 52 Pa. 461.
    March 18, 1889.
   Per Curiam,

This case can be disposed of with very few words. It was decided by the court below, upon the petition of the use plaintiff, that the dower mentioned in the deed from Mr. Levan to his daughter, Mrs. Bickel, was a mere recital and not a charge upon the land conveyed.. This decision of the court below was affirmed upon appeal to this court in an unreported case. Mrs. Schmehl then brought this suit, joining with her the administrator of the widow Traut as use plaintiff, making use of the names of the executors of Charles Levan, deceased, as the legal plaintiffs. They are attempting to recover upon a mistaken recital in a deed to which they are neither parties nor privies, and for which they have never paid any consideration. The dower recited in the deed was not created by that instrument; it was merely supposed to exist and its recital was perhaps a mere blunder of the conveyancer. In any event, the plaintiffs show no title to recover.

judgment affirmed.

The decision of the supreme court, referred to in the above opinion, is. reported as Schmehl’s Ap., 7 Cent. 504.  