author: Mr. Justice Sh-arswood

text:
    Waugh’s Appeal.
    1. Provisions in a will were: “ I give to my sons John and James my dwelling plantation, * * * with about thirty acres adjoining, * * * to be divided, &c. * * * If any of them should die without lawful heir, I allow the survivor to inherit the whole. The land I have bequeathed to each of them, I allow them to hold by virtue of this my will to them and their heirs and assigns for ever.” He also charged legacies on the land: Held, 1. That the sons took estates in fee ; 2. The clause, “ if any of them should die without lawful heir, the survivor to inherit the whole,” meant only to provide against lapse.
    2. Another provision was : “ If James should not choose to build on the part of the land allotted to him, and chooses to sell, I allow him to let his brother John have it at $2000, besides what he was to pay out of it.” In 1852 James sold his share to John for $3500, and John afterwards sold part for $1500. In 1873, at the request of John, James released him from all claims under his father’s will, on condition that John should convey all the land to James’s children, they to take possession at John’s death, and to give him an obligation for $2000, payable after his death. John died unmarried and without issue in 1874: Held, that the share of the land which had belonged to James was not subject to collateral inheritance tax; that John’s own share was subject to the tax.
    3. The conveyance of 1873 was a rescission of the salé by James in 1852, and was the carrying out of the will of the father as to selling for $2000.
    May 6th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Adams county: Of May Term 1875, No. 71.
    The appeal in this case was by John B. Waugh, William P. Waugh, Flora A. Dufphey, late Waugh, and Mary E. Waugh, from the decree of the Orphans’ Court in relation to the assessment of the collateral inheritance tax on lands held by them, late the estate of John Waugh, deceased.
    The land on which the tax was assessed was formerly the property of William Waugh, of Adams county, deceased, who died about October 1823, having made a will dated November 27th 1817, and proved October 28th 1823.
    The will directed that his wife and family should live together on his “dwelling plantation” during her life, the plantation to be farmed by his two sons John and James. He gave his sons what they could make “ off” the plantation after supporting the family ; he gave to his wife certain privileges and 20i. yearly during her life, and 100Í. absolutely ; he gave to his two sons also the farming utensils, &c., on the plantation.
    He made a number of bequests and devises to his children other than John and James, and to his grandchildren; several of the bequests were charged on the real estate. He then proceeded :—
    “ I give and bequeath to my two sons John and James all my dwelling plantation, consisting of all my land in Carrol’s Delight, with about thirty acres adjoining, including the little sugar-loaf hill; to be divided in the following manner, viz. (setting forth the boundaries): the north side of said division with the building I allow to John, and the south to James, together with the land purchased from William Hart on the west side of the upper end of the long lane, except the part which is in law; which, if recovered, I allow to go into my personal property, all but two acres on the upper end of it. Said division is not to take place in full till perhaps the beginning of the year 1820. Should my wife be then living she is to be supported, particularly by John. James may make preparation for building, if he chooses, previous to the aforementioned time, and to have the benefit of the old barn till he builds one, and John to assist him in building. I allow, when they make a full division as above directed, that the farming utensils, tools, &c., be divided between John and James. I allow my mountain land on Bashan to be divided between them, as marked on the draft. * * * I allow my mountain land on the waters of Tom’s creek, to be accounted as personal property and to be sold by my executors as soon as it can be done to advantage. I allow to my son John lOOi. out of my personal property one year after my decease; I also allow to my son James $200 annent building.
    “ I allow and it is my will that when the divide of my plantation is made, as before directed, that my son John shall pay $1200 annent his share of the land, to be paid in annual payments of $200 a year, and likewise to assist in supporting any of the family that may wish to live together on said plantation.
    “ I allow and my will is that my son James shall pay annent his share or divide of the land $1000, to be paid in annual payments of $200 a year, the first in one year after he gets possession. And if my estate should amount to more than the specifiet sums mentioned, then I allow the whole of such overplus to be equally divided between my two sons John and James. But if there is not a sufficiency to pay the specifiet sums, then and in that case I allow my said two sons John and James to make up said deficiency equally over and above what they have to pay out of the land.
    “ It is my will that if any of the legatees mentioned in this will should die before they receive such legacy to them bequeathed, or without lawful heir of their body, that in that case such bequest shall be equally divided amongst the surviving heirs, viz.: * * * If James should not choose to build on the part of the land allotted to him and chooses to sell, I allow him to let his brother John have it at $2000, besides what he was to pay out of it, or if any of them should die without lawful heir I allow the survivor to inherit the whole. The land that I have bequeathed to each of them I allow them to hold by virtue of this my last will and testament to them and their heirs and assigns for ever.”
    On the 14th of June 1852, James Waugh, for the consideration of $3500, conveyed to his brother John Waugh in fee certain tracts of land in Hamiltonban township, Adams county, “it being all my right, title and interest in the land bequeathed to me by my father William Waugh by will, all of which lands are fully described in said will.” Subsequently John Waugh conveyed to John Gelbaugh eighteen acres from the mansion tract for $1500.
    On the 1st of July 1873, James Waugh made a power of attorney to his son, James B. Waugh, “ To make, &c., to his brother John Waugh, a deed, &c., releasing all my right, &c., to a certain parcel of land in Hamiltonban township, Adams county, willed by my father in the year 1817 to John Waugh and myself, and allowing me to sell my part of the land to John for $2000, * * * and my brother John Waugh having written to me that he was in feeble health and wished to make a disposition of his property before his death, and that he desired me or my children to have the entire lands on the payment back to him of the sum of $2000.” He then authorized his attorney to transfer “ all my interest, right and claims upon the said lands hack to said John Waugh forever, upon the following express conditions, viz.: that my brother John will make to my four children, viz.: W. P. Waugh, John B. Waugh, Flora A. Dufphey and Mary E. Waugh, a good warrantable deed for the whole of said land, with possession at his death, and accept of the joint note or obligation for the sum of $2000, made payable to him or his estate two years after his death, being the amount claimed by him for the amount paid me for my interest in my part of the land sold him, a refunding of said purchase-money.” * * *
    On the 7th of July 1873, James Waugh, by his attorney John B. Waugh, under the above power, made a release as follows:—
    “For and in consideration of the fact that John Waugh, of, &c., has made or executed a deed to certain tracts or parcels of land in Adams county, Pennsylvania, to W. P. Waugh, J. B. Waugh, Flora A. Dufphey and Mary E. Waugh, I do hereby sell, transfer and convey, and for ever relinquish, any right or title I now have, or which I may hereafter have by reason of the death of my brother John Waugh in said lands.”
    On the 7th of July 1873, John Waugh, by deed of that date, in consideration of $2000, conveyed in fee to the four children of James Waugh, mentioned in the power of attorney, “ all that hereafter described tract or parcel of land, situate, lying and being in .the county of Adams and state of Pennsylvania: No. 1, Mansion tract, containing 300 acres, more or less, and the Mountain tract, containing 120 acres, more or less, adjoining, &c.; it being all the same lands that William Waugh willed to James Waugh and the said John Waugh. * * * The said John Waugh reserves off the mansion tract all the land lying south of the Gettysburg public road, he having sold it to Gelbaugh, containing 18 acres, more or less. Possession of all said premises to be given at the death of the said John Waugh, together,” &c. * * *
    The consideration was paid by a note of James Waugh’s children to John Waugh for $2000, payable in two years after-John’s death.
    John Waugh died on the mansion place, in Adams county, in April 1874, unmarried and without issue, but leaving a will, which was proved on the 28th of the same month, and letters testamentary granted to James H. Marshall and Joseph Killinger, the executors named in it.
    A collateral appraisement of John Waugh’s estate was made; in it was included the $2000 note of James Waugh’s four children “ less discount;” and

      “Home farm, 300 acres, sold to W. P. Waugh, J. B.
    Waugh, Flora A. Dufphey, and Mary E. Waugh, title only to take effect at the death of the grantor, at $80 per acre, ....... $24,000
    “ Mountain tract containing 120 acres, conveyed as above to W. P. Waugh, J. B. Waugh, Flora A. Dufphey and Mary E. Waugh, at $30 per acre . . . 3,600
    $27,600”
    W. P. Waugh and the other three children of James, appealed from the appraisement for the reasons :—
    1. That valuation of the lands was too high.
    2. That the Home Farm and Mountain Land were not John Waugh’s estate at the time of his death, and therefore not subject to collateral inheritance taxation.
    3. The Home Farm and Mountain Land were at John Waugh’s death the property of William P. Waugh, John B. Waugh, Mary E. Waugh and Flora A. Dufphey, under the will of William Waugh, and the deed made in pursuance of the will by James Waugh and John Waugh.
    The Orphans’ Court (Wills, P. J.) held, that the land was subject to the collateral inheritance tax ; that the assessment was not too high, and dismissed the appeal.
    The appellants below appealed to the Supreme Court, and assigned this decree of the Orphans’ Court for error.

      P. Cr. MeCreary, for appellants.
    By the will of William Waugh, his sons John and James took the land in tail with cross remainders in fee: Haines v. Witmer, 2 Yeates 400; Braden v. Cannon, 12 Harris 171; Baskin’s Appeal, 3 Barr 304; Porter v. Bradley, 3 Term R. 488; Wall v. McGuire, 12 Harris 248; Hatch v. Bluck, 6 Taunt. 485; Simpson v. Ashworth, 6 Beav. 412. The deed of John Waugh to the appellants must be regarded in connection with the power of attorney and release of James Waugh to John. They constitute one transaction, and operate merely as a transfer by James Waugh of his estate in remainder to his children. The deed transferred no beneficial estate from him. The appellants held under the will of William Waugh, through James Waugh; it is not subject to tax as the estate of the grantee of the power: Commonwealth v. Duffield, 2 Jones 277 ; Commonwealth v. Williams, 1 Harris 29. The conveyance by John Waugh to the appellants of that part of the land originally devised to James Waugh, was upon a fair and valuable consideration paid by them, was duly executed, delivered and recorded in the lifetime of the grantor, and is not within the Act of 7th April 1826. The deed took affect upon delivery and vested in the appellants a fee simple title with legal seisin in this portion of the farm: Act 28th May 1715, sect. 5, 1 Sm. Laws 95, 1 Br. Purd. 472, pi. 74; McKee v. Pfout, 3 Dallas 486; Dunwoodie v. Reed, 3 S. & R. 445; Stinger v. Commonwealth, 2 Casey 422, 429.

      W. A. Duncan, for Commonwealth, appellee.
    The concluding words, “to them, their heirs and assigns for ever” passed a fee: Middleswarth v. Collins, 1 Phila. R. 139; Fetrow’s Estate, 8 P. F. Smith 424; Brisben’s Appeal, 20 Id. 405; France’s Estate, 25 Id. 225. Where there are two repugnant clauses in a will the latter shall stand: 2 Blackstone 308; 1 Jarm. on Wills 411-413 ; Lewis’s Estate, 3 Whart. 162; German v. German, 3 Casey 118; Stickles’s Appeal, 5 Id. 236; Mutter’s Estate, 2 Wright 321; Newbold v. Boone, 2 P. F. Smith 167 ; Shutt v. Rambo, 7 Id. 149. The recognition by testator of the power of James to sell to John destroys the effect of “ survivor to inherit the whole:” Karker’s Appeal, 10 P. F. Smith 141. “ Heirs” not necessary to create a fee: Caldwell v. Ferguson, 2 Yeates 250, 380; French v. McIlhenny, 2 Binn. 13; Morrison v. Semple, 6 Id. 94; Hall v. Dickinson, 2 Phila. 123 ; Schriver v. Meyer, 7 Harris 87 ; Wood v. Hills, 7 Id. 513; Act April 8th 1833, sect. 10, Pamph. L. 16, 2 Br. Purd. 1475, pl. 10 ; Geyer v. Wentzel, 18 P. F. Smith 84; Jauretche v. Proctor, 12 Wright 466; Lobach’s Case, 6 Watts 171; Hoover v. Hoover, 5 Barr 355; Fulton v. Moore, 1 Casey 474; Schoonmaker v. Stockton, 1 Wright 461. The deed did not take effect upon execution and delivery: Turner v. Scott, 1 P. F. Smith 126 : Redfield on Wills 170; Gage v. Gage, 12 N. H. 731; Ingram v. Porter, 4 McCord 198; Harbergham v. Vincent, 2 Ves. Jr. 204; Rose v. Quirk, 6 Casey 225. The execution of the deed by John Waugh, just before his death, to his brother’s .children, is within the very words of the act relating to collateral inheritance tax : Act of April 1st 1826, sect. 1, 9 Sm. Laws 148, 1 Br. Purd. 214, pl. 1; Stinger v. Commonwealth, 2 Casey 422; Wright’s Appeal, 2 Wright 507.
   Mr. Justice Sh-arswood

delivered the opinion of the court, October 12th 1875.

The learned judge below did not consider in fhis opinion the question, what estate John and James took .under the will of their father, William Waugh, in the mansion farm, and woodlands on Bashan. Perhaps it was not presented as it has been in the printed and oral argument in this court. It has been contended, very plausibly, that the brothers took estates tail with cross remainders in fee, so that upon the death of John Waugh, without issue, his original portion would have passed to James Waugh. If that were so, that portion would clearly not be subject to collateral inheritance tax as the estate of John Waugh.

We are of opinion, however, that the brothers took estates in fee, and that the direction “ if any of them should die without lawful heir the survivor to inherit the whole,” meant only to provide against lapse. The direction ip question is followed by a devise to them in technical and unqualified terms “ to hold by virtue of this my last will and testament to them and their heirs and assigns for ever.” The previous provision that “ if James should not choose to build on the part of the land allotted to him, and chooses to sell, I allow him to let his brother John have it at two thousand dollars, besides what he was to pay out of it,” indicates pretty distinctly that the idea of the testator was that each of his sons was to have an estate which they could sell. The collocation of the clause in question before the devise in fee, though not conclusive, aids this construction. When a reasonable doubt exists, the inclination of the courts is to fall back on this construction, because it gives effect to every word and reconciles inconsistencies : Fahrney v. Holsinger, 15 P. F. Smith 394, and cases there cited.

James and John being thus tenants in fee, James by deed June 14th 1852, conveyed his interest to John for the consideration of $3500, and John subsequently sold a portion of it to John Gelbaugh for $1500. This left $2000 as the amount John had paid for what he continued to hold. Then James, by his attorney in fact, on the 7th day of July 1873, released to John whatever interest he might have under his father’s will, upon condition that John would make to his four children (the appellant’s) a deed for the whole of the land, with possession at his death, and accept of their joint note or obligation for the sum of $2000, made payable to him or his estate two years after his death, being the amount claimed by him for the sum paid James for his interest in his part of the land sold him, a refunding of said purchase-money. This arrangement was consummated on the same day by a deed from John Waugh to the appellants for all the lands, “ possession of all said premises to be given at the death of said John Waugh.” As to the original share of John, it is very clear that it is subject to the tax, being within the express provision of the Act of April 7th 1826, 9 Sm. Laws 146, as an interest “transferred by deed, grant, bargain or sale, made or intended to take in possession or enjoyment after the death of the grantor or bargainor.” But as to the share or portion of James Waugh, it appears to us to present a different case. Substantially it was agreed that the appellants should purchase back that share after John’s death by refunding to his estate what he had paid their father for it. Their notes for the $2000 have gone into the inventory of the personal estate, which is, of course, to pay the tax. Part of the consideration undoubtedly was, that John should convey the entire estate to his nephews and nieces. But can it-be said that this share was John’s at the time of his death, or that it was within the spirit of the proviso ? It was in effect a rescission of the sale of 1852, which was evidently a mere carrying out of the will of William, and an agreement by John to give his own original share to the appellants. ■ Had the appellants been strangers — not collaterals— it would have been a perfectly valid transaction founded upon valuable consideration. It is not found or pretended that the object was to evade the tax. The note given for the transfer excluded such a pretension. Had James continued the owner under his father’s will it would have passed to the appellants on his death, and there could have been no claim upon it by the Commonwealth for the tax.

Decree reversed, and now it is ordered and decreed that the appeal by John B. Waugh, William P. Waugh, Mary E. Waugh and Flora B. Dufphey, from the assessment on the home farm and mountain land, valued at $27,600, be sustained so far as regards so much of the said land as was the property of James Waugh, under the will of William Waugh, and that the record may be remitted that an order be made by the Orphans’ Court for a new assessment to be made according to the principles of this opinion. Each party to pay his own costs on this appeal.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Sower versus Weaver.
    1. To establish a parol gift of land, the evidence must be direct, positive, express and unambiguous.
    2. Sower brought ejectment on his legal title against Weaver, who set up a parol gift; the evidence of it was the testimony of himself and wife.
    Sower by his testimony contradicted theirs. Held, that Weaver and wife being but as one witness, the testimony of another witness or its equivalent, was necessary to establish the defence.
    3. In equitable ejectments, and equitable defences set up at law to legal titles, the same rule and measure of justice is to be applied, whether the proceeding be at law or in equity.
    4. The facts testified to by Weaver and wife, not sufficient to establish a parol gift.
    5. Ackerman v. Fisher, 7 P. F. Smith 457 ; Dollar Savings Bank v. Bennett, 26 P. F. Smith 402, adhered to.
    May 7th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of York county: Of May Term 1875, No. 78.
    This was an action of ejectment, brought April 2d 1873, by George Sower against Henry Weaver, for a tract of land in Washington township, containing about 64 acres. The defendant is the husband of Elizabeth, late Sower, a daughter of the plaintiff.

      The cause was tried January 26th 1875, before Fisher, P. J.
    The plaintiff gave in evidence a patent from the Penns to George McMillan, dated December 6th 1871, for 193 acres in Washington township, York county. Deed: Enos McMillan and others, heirs of George McMillan, to George Sower, dated March 15th 1834, for 150 acres, part of the above tract. Deed: George Sower to his son John Sower, dated March 31st 1846, for 90 acres, 109 perches, part of the 150 acres. The premises in dispute are the remainder of the 150 acres.
    He further gave evidence that he built a house on the land in dispute previously to 1846, that defendant had been living on that land since 1847, and had built a barn on it; plaintiff gave defendant money to pay on the barn.
    On the 9th of September 1853, the plaintiff conveyed 40 perches of the land — part of that occupied by defendant — to the Washington School District. The evidence was that this conveyance was with the assent of the defendant.
    The plaintiff’s deposition was read : He testified in answer to the question, “ How came the defendant into possession of the premises in dispute ?” that “ defendant was married to plaintiff’s daughter; he held for a home. I said to him I did build him a house on it, and told him he might have it for eighteen years, and might have all he raised on it; that was about twenty-six years ago; he was to build a barn and pay all the taxes; he took possession about two or three months after we made the bargain; he built a barn but I had to pay the most of it, his credit wasn’t present. When the eighteen years were up they complained that I had given the boys homes and they had nothing. I proposed to give it to them as I had given the land to the boys, that is, at what it was assessed at by the assessor. All Weaver said was, he’d like to have it for his own, but he could not take it. I had no conversation with him about it after that. After the eighteen years I said he must now pay me rent, either the third bushel or $>50 ; he said not a word. I demanded rent several times; he never said a word. Weaver built nothing except the barn; he fenced, and improved, and limed it a very little.” There was ocher evidence for plaintiff of a somewhat similar character.
    The plaintiff rested.
    Under objection and exception the defendant’s wife testified:—
    “ I married Henry Weaver thirty-four years. Father said he would divide the farm where John lived on, and build a house if we would go on; I told him I did not want to go there, I could not be at home, and he told me he would build a house on it, and if I was there once and had my stuff there I would be at home; I told him the land was too poor, we could not live on it; he said I could make it good; we went on the land; there was no house on the land at the time he gave me the land; my father helped to build the house; he got the carpenter-work of the house done; Weaver, my husband, got the other part of the work done ; he dug the cellar and had all the mason-work done which was done to the house; we moved in on Whit-Monday, of 1846; the work was all finished, but the plastering was not dry; Weaver put up the barn in 1846; we have been living there ever since; when we went there the land was as poor as could be; we could not have lived upon what the land produced at that time; I do not know that Greorge Sower did anything towards building the barn; Weaver employed the workmen to build the barn; Weaver paid them ; Weaver paid the taxes on the land; Weaver made fences, put lime on it; all the manure that we raised he put on ; one year he got guano; the guano was put on the ground; there is an orchard there, only one; we planted the trees; no garden there; one there now; Weaver laid out the garden and.fenced it — it is a clap-board fence; we planted fruit-trees; no well there; there are two wells there; we dug the well.” The witness testified in direct contradiction of the plaintiff as to his permitting them to have the property for eighteen years ; as to their asking him at the end of eighteen years for a home; his demanding rent, &c.
    The defendant testified : “I was married 9th November 1841; I took possession of the farm in the spring of 1846 ; I dug the cellar of the house; I moved on in the fall of 1845 and walled a part of the cellar ; finished walling it in the spring; I got hands to help me dig it and hands to build the wall; in the spring I dug the foundation of the kitchen, and had stone hauled there, and put the lime and the brick there for the masons; I employed the workmen and paid them too; Sower had the wood-work done by the job; Sower paid for the wood-work, but promised to do all the wood-work; the same year I built a barn; I employed the men to build the barn and paid them ; I furnished the lumber for the barn; Sower did nothing towards building the barn ; I got the wood for the frame-work; I paid for the timber and in the construction of this barn; I never got any money of Sower to build this'barn I built; since the barn was built I built a wagon-shed and a corn-crib attached to it, and two other buildings; I sank one well, one at the house and one a little way from the barn; I paid for them; I planted an orchard and shade trees about the house; the land was very poor when I went there; the fences in bad condition ; when I first moved there I could not raise enough to feed my family; I can now make a living.”
    He further testified that on one occasion when the assessor asked the plaintiff to whom the land was to be assessed, he said to defendant, he had given it to him arid his wife. He testified also, that he had put much manure on the land, and increased its value from $5 per acre to $45, according to the assessed value. He also testified in direct contradiction of the material statements in plaintiff’s testimony.
    Also: “ To George Sower I said it was hard for me to build there unless I knew what I was to do it for. He said he did give, it to me and my wife for our own, and with that understanding I went into possession. Then, in pursuance of that conversation, I dug the cellar and took possession, and put up the barn, and put up the garden fence, and made fences to keep the cattle out, and did work, and had more than I could do.”
    There was some testimony of indefinite statements of the plaintiff as to his having given defendant’s wife the land; also, that it had been assessed in his name for many years.
    The plaintiff’s third point and its answer were:—
    The plaintiff acquired by his deed from the McMillan’s heirs in 1834, a complete and perfect legal title to about 150 acres of land, of which the premises claimed in this suit constitute a part, and the evidence given by the defendant of an alleged parol gift of a portion of said land is indireot, uncertain, ambiguous and contradictory as to its alleged terms, as well as to metes and bounds of the land alleged to be given, and not sufficient in law to take the case out of the operation of the Statute of Frauds and Perjuries.
    Answer: “ The plaintiff acquired by his deed from the McMillan heirs in 1834, a complete and perfect legal title to about 150 acres of land, of which the premises claimed in this suit -constitute a part; but we cannot affirm that portion of the point which says ‘ that the evidence given by the defendant of an alleged parol gift of a portion of said land is indirect, uncertain, ambiguous and contradictory as to its alleged terms, as well as to the metes and bounds of the land alleged to be given, and not sufficient in law to take the case out of the operation of the Statute of Frauds and Perjuries,’ as will be more fully explained when we come to answer the defendant’s points, and as we have stated the law in connection with these facts in our general charge.”
    The following were points of the defendant which were affirmed :—
    1. If the jury believe that the plaintiff made a parol gift of the land in dispute to the wife of the defendant in 1845, aud that in pursuance thereof the defendant and wife entered into possession in 1846, built a barn and sheds, dug wells, erected fences, planted an orchard and other fruits trees, limed and manured the land and made other improvements, assisted to build the house, and remained in possession of the premises ever since, and the same was during all that time assessed in the defendant’s name, that plaintiff at one time told the assessor to assess it in the name of the defendant, and at another time as assistant assessor joined in assessing it in the name of Weaver, stating at the time, I give it to Betz; that if the jury believe further that the plaintiff has not accounted for such long-continued possession by the defendant and wife, then defendant is not to be held to the same rigid measure of proof as that which is required to sustain a parol gift recently made and the lapse of time is allowed to supply want of directness and distinctness of proof, although not to create evidence.
    2. If the jury are fully satisfied from all the evidence in the cause of the fact of a parol gift by the plaintiff to his (laughter in 1845, of the identity of the land, and extent of the gift, delivery of possession in pursuance of the gift, and the erection of valuable buildings and improvements by the defendant and his wife, that the land was assessed to the defendant from that time to the time of the bringing of this suit, of plaintiff joining in the assessment one year as assistant assessor, and at another time directed it to be assessed in the defendant’s name and the defendant paid the taxes from the time of the bringing of this suit, and if the jury believe further that the plaintiff has not accounted for such long continued possession by the defendant, the plaintiff is not entitled to recover.
    The verdict was for the defendant.
    The plaintiff took a writ of error; he assigned for error the decisions of the court on the questions of evidence and the answers to the points.

      JET. L. Fisher and W. 0. Chapman, for plaintiff in error.
    The defence being in the nature of a bill for specific performance of a parol contract against a legal title, there must be no doubt about the facts: Brawdy v. Brawdy, 7 Barr 157; Moore v. Small, 7 Harris 461; Rankin v. Simpson, Id. 471; Poorman v. Kilgore, 2 Casey 365; Collins v. Collins, 2 Grant 117. Declarations and admissions of an alleged donor are the weakest kind of evidence : Robertson v. Robertson, 9 Watts 32. The evidence must be direct, positive and unambiguous: Ackerman v. Fisher, 7 P. F. Smith 457; Harris v. Richey, 6 Id. 395; Eckert v. Eckert, 3 Penna. R. 332.

      J. Gibson and V. K. Keesey (with whom was G. W. McElroy), for defendant in error.
    Where a donee has had a long and continued possession which is not satisfactorily accounted for, the proof required is not so strict as when the gift has been recently made : Willey v. Day, 1 P. F. Smith 57 ; Richards v. Elwell, 12 Wright 361; Mahon v. Baker, 2 Casey 519.
   Mr. Justice Sharswood

delivered the opinion of the court, May 17th 1875.

Had this case been tried below before the Act of 1869, and without the testimony of the defendant and his wife, there would have been literally no evidence to sustain the defence. There would have been nothing but a few vague declarations by the plaintiff, entirely consistent with a temporary family arrangement, by which the father built a house on his land and put his daughter and son-in-law in possession, to hold during his pleasure, and utterly insufficient to establish a parol gift.

Even the testimony of Weaver and his wife did not come up to the requirement of the rule that the evidence of the contract must be direct, positive, express and unambiguous: Ackerman v. Fisher, 7 P. F. Smith 457. A chancellor must look at the whole evidence, and in this case the uncontradicted fact that during Weaver’s possession Sower sold and conveyed a part of the land with Weaver’s knowledge and assent, for a school-house, would, of itself, contradict the inference of a parol gift. But how stands the case since the Act of 1869, and supposing that the testimony of Weaver and his wife made out the gift ? The defence was a purely equitable one. Had the defendant gone into a court of equity for a specific performance, or for an injunction to restrain the plaintiff from pursuing his legal title to turn him out of possession, the denial of the plaintiff on oath of the equity of the bill would have compelled the complainant in the bill to sustain it by two witnesses, or what would be equivalent thereto. Here George Sower, under oath, fairly and squarely denied all the equity which Weaver set up. Admitting Weaver and his wife to amount together to one sufficient witness, where is the remaining witness, or that which is equivalent thereto ? It is not to be found in the case. It is clear that this well established rule of equity must be applied in cases of this character, or the rule must be abolished on the equity side of the court. As long as equitable ejectments may be maintained and equitable defences set up at law to legal titles, we must see to it that the same rule and measure of justice be applied, whether the proceeding be at law or in equity. We adopted and announced this principle in the opinion in the Dollar Savings Fund v. Bennett, 26 P. F. Smith 402, decided at Pittsburg, November 1874, and it is our purpose to adhere to it.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Charles et al versus Huber et al.

    1. Challes made a will devising land to two sons at a valuation; it was witnessed by two witnesses. The will, when presented for probate, showed an erasure of the valuations and other valuations interlined. One of the witnesses having died, his writing was proved and the will admitted to probate by the register. In an issue on appeal, the will was admitted as primfi, facie under the probate. The surviving witness testified that the alteration was made after the execution by direction of the testator, afterwards re-acknowledged before the same two witnesses; the handwriting of the deceased witness was proved on the issue. Held, that the paper as offered was not proved as a will.

      2. The evidence of the surviving witness contradicted the prima facies of the probate, and the altered will stood on the proof of but one witness, and was therefore unproved.
    May 7th 1875.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1875, No. 94.
    This was a feigned issue, in which Henry Charles and others were plaintiffs, and Benjamin Huber and others, defendants, entered October 13th 1873, to try the validity of a paper writing purporting to be the will of Henry Charles, deceased.
    The paper was dated November 31st 1868, was signed by Henry Charles, with a seal, and witnessed by “ W. Carpenter and A. E. Carpenter.” It was admitted to probate by the register of wills on the 1st of September 1873, upon the ordinary testimony, of W. Carpenter, one of the subscribing witnesses, and proof of the handwriting of A. E. Carpenter (then deceased), the other subscribing witness; letters testamentary were on the same day issued to the plaintiffs, the executors named in the will. An appeal was taken 'October 13th 1873, from the decree of the register, in pursuance of which this issue was framed. The issue was tried February 11th 1875, before Livingston, P. J.
    The plaintiffs gave in evidence the paper writing.
    After giving to his wife the interest of $6000, and otherwise providing for her, there were the following clauses, the erasures in which gave rise to the controversy :—
    “ My plantation or tract of land whereon I now live, in Pequea township, aforesaid, adjoining other land of mine and lands of Abraham Hess, Amos Hess,--and others, containing about one hundred and forty acres, I direct to be divided into two equal parts, or as nearly equal in quantity of acres as may be; and I value that moiety, or part thereof, whereon the new buildings are, now in the occupancy of my son Michael, at the sum of one hundred-[erasure]-dollars per acre, and the other moiety or part thereof, with the old buildings, where I now live, at one hundred dollars per acre. And I give and devise either one of said moieties or purparts, with the appertenances which he shall select or choose to take or have, to my son Henry Charles, his heirs and assigns for ever, at the valuation aforesaid, and subject to the rights and privileges hereinbefore given to my wife during life; and also subject to giving my said wife, during life, at such times as she shall require it, one-half of all the firewood she shall need for her family use, delivered at her residence; and the other moiety or purpart, with the appertenances, I give and devise to my son Michael Charles, his heirs and assigns for ever, at the valuation aforesaid, and subject to giving to my said wife, during life, at such times as she shall require it,, one-half of all the fire-wood she shall need for her family use, delivered at her residence.
    “ My messuage or tenement and tract of about forty acres of land, in Pequea township, as aforesaid, adjoining my other land, and which I purchased from John Herman, with the appertenances, I give and devise to my son, Jacob Charles, his heirs and assigns for ever, at the valuation of one hundred-[erasure]dollars per acre.” New valuations were written over the erasures.
    Then followed directions to the three sons, Henry, Michael and Jacob, to pay “and account to my estate for the amount of the valuations of my estate hereinbefore devised to them,” the valuation, except the $6000, which was to be invested for the use of his wife, to be paid to certain of his children in the amounts specified. The residue of his estate was to be divided in equal shares amongst nine children, including Harry, Michael and Jacob; he excluded from this distribution two children, on the ground that they had inherited their mother’s estate.
    The plaintiffs then rested.
    The defendants read the deposition of William Carpenter, one of the subscribing witnesses to the will. He testified that the paper was written by him, and that he saw Henry Charles sign it on the day of its date. “ There was an alteration made in two places in the valuation of the real estate devised to his sons; * * the valuations were higher than they are now; the one was $25 or $35 higher, I think, and the other $30 or $35, to the best of my recollection. I think there were two words in each case, where there are erasures, and ink lines drawn over them. Although uncertain as to the amounts that they were, I am certain that they were higher than they now are, in those two devises, at the time the will was signed than they now appear upon the face of the paper. These alterations were made before the death of my son Albert, which occurred in December, 1871; I think these alterations were made in the summer of 1871, in my office, by me, while he was sitting by my side; I do not think that any other person was in my office at the time. After the alterations were made Mr. Charles acknowledged the will in the presence of my son Albert and myself; at the time Mr. Charles signed his will my son Albert and I signed it as witnesses; my son Albert is dead, and this is his signature to the will; after the date of the will, during the lifetime of my son, Mr. Charles came to my office and requested me to make these alterations. After the alterations were made, as he wished them, he acknowledged the will in my presence and in the presence of my son Albert; he preferred these alterations in the place of making a codicil.”
    The plaintiffs then proved by W. W. Brown, Esq., who said he knew the handwriting of A. E. Carpenter, that his name as a subscribing witness to the will was A. E. Carpenter’s handwriting.

      The plaintiffs requested the court to instruct the jury to find for them, because:—
    1. The will and alterations weré sufficiently proven.
    2. If the will with the alterations was not sufficiently proven the will must stand without the alterations, because alteration is not revocation.
    The court directed the jury to find for the defendants which was accordingly done.
    The plaintiffs took a wrffof error and assigned for error the in-, structions of the court.
    S'. H. Reynolds and I). Cf. RllmaJeer, for plaintiffs in error.—
    The will and alterations were sufficiently proven. A republication of a will may be proved by parol: Havard v. Davis, 2 Binn. 406 ; Jones v. Hartley, 2 Whart. 108; Wallace v. Blair, 1 Grant 75. Where the ■ witness has died, proof of his handwriting is primá facie evidence of his attestation in due form : 1 Redfield on Wills 242, § 20 ; Nickerson v. Buch, 12 Cush. 332; Hays v. Harden, 6 Barr 409, 412; Greenough v. Greenough, 1 Jones 489; Vernon v. Kirk, 6 Casey 218. Where interlineations, &c., are made in a will, and no mention is made of them at the time of execution they will be presumed to have been made, prior to execution: Wikoff's Appeal, 3 Harris 281. If alterations are not proved the will stands as originally made : Act of April 8th 1833, sect. 13, Pamph. L. 249, 2 Br. Purd. 1476, pl. 16; Heise v. Heise, 7 Casey 246. A direction that the will shall be destroyed, which is not fulfilled, will not be a revocation : Andrews v. Motley, 12 C. B. N. S. 513; Runkle v. Gates, 11 Ind. 95; Kent v. Mehaffy, 10 Ohio (N. S.) 204; Clingan v. Mitcheltree, 7 Casey 25 ; Dixon’s Appeal, 5 P. F. Smith 424; Jackson v. Halloway, 7 Johns. 394; Short v. Smith, 4 East 419 ; Locke v. James, 11 M. & W. 901; Doane v. Haddock, 42 Mass. 72; Laughton v. Atkins, 1 Pick. 535.

      O. J. Richey and N. IAghtner, for defendants in error,
    cited Hock v. Hock, 6 S. & R. 47; Derr v. Greenawalt, 26 P. F. Smith 239; Musser v. Curry, 3 W. C. C. R. 481.
   Judgment was entered in the Supreme Court, May 17th 1875,

Per Curiam.

The paper admitted to probate was the altered will. It was proved by two witnesses only. When one of the subscribing witnesses testified, on the trial of the issue devisavit vel non, that the paper thus admitted on the primá. facie proof, was altered after he subscribed the will, he contradicted the prim$ facie evidence of the probate, which left the altered paper unproved, and standing on the testimony of the other subscribing witness only, who was dead. The altered will was therefore without proof. The will as it stood before alteration was not proved, for the deceased subscribing witness had not proved the will as it had originally stood, but proved it only in its altered state, which left the original text proved by a single witness only. Then, the alteration being proved by a single witness only, the paper in neither form was legally proved. The consequence is that the paper fell as a will. Judgment affirmed.


author: ' Per Curiam.

text:
    Myers’s Appeal.
    1. On the 14th of April Nell assigned for the benefit of creditors, “reserving so much property as the law exempts from levy," &c. On the 22d of April Myers recovered judgment against him on a note waiving the exemption. Held, that Myers had no standing to claim in the distribution of the fund assigned.
    2. Waiver must be asserted by execution or attachment against the reservation.
    3. By the assignment the property passed to the assignee for the purposes of the trust to be administered as directed by the deed creating it.
    May 7th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Adams county: No. 99, to May Term 1875. In the distribution of the estate of William Nell and wife under deed of assignment for the benefit of creditors to Michael B. Blauser, dated April 14th 1878. The assignment was of all their real estate, being a house and lot in Meehanicsville, and all their personal property, &c., “ reserving out of said assigned property so much property as the law of this Commonwealth exempts from levy and sale on execution to the value of $300, in property personal and real, which is hereby reserved, and to be set apart and appraised in a manner provided by law, * * * and if said property cannot be so set apart, then said amount, or the residue thereof, is claimed and reserved out of the proceeds of said house and lot when sold,” &c.
    The inventory, &c., of the property assigned, &c., made by the appraisers appointed by the court was:—
    “ House and lot in Meehanicsville, subject to lien of judgment, &c. . . . . . . ' . . . $315
    There was also an inventory and appraisement of property reserved and retained by William Nell, under his deed of assignment, &c., viz:
    A number of articles of personal property specified amounting to .........$12.87 „
    To this was added, signed by the appraisers :
    “ The said William Nell claims to retain under the reservation in the assignment a portion of the real estate, and we find said real estate to consist of a house and lot in Meehanicsville, Adams county, and that it cannot be divided so as to set apart any portion of it to said William Nell, and therefore we so return, and find him entitled to $287.13, out of the proceeds when sold.”
    A number of exceptions to this inventory were filed by Moses Myers, a creditor of the assignor, viz.:—
    That the exceptor was a creditor holding a note waiving the exemption; that the real estate appraised passed to the assignee and should be sold and the proceeds be distributed amongst the creditors; and that there was no law authorizing the return of the appraisers appended to the inventory.
    The note of Myers was dated May 13th 1872, for $266, payable in ten months, waiving the rights of the assignor under the exemption law. On this note judgment had been recovered April 22d 1873 for $281.02.
    The exceptions were dismissed by the court for the reason that there was no application for confirmation.
    The assignee filed an account April 21st 1874, charging himself with the personal property appraised $12.87, proceeds of the real estate $405, and some other items; in all $576.69. Amongst the credits was : “ Paid assignor under the exemption law” $300.
    There were other items of credit; the balance for distribution was $61.28.
    May 26th 1874, Myers excepted to the credit of the payment of $300 to the assignor, because there was no authority of law for its payment, &c.
    The exceptions to the account were dismissed, March 27th 1875, by the court, McLean, P. J.
    Myers appealed to the Supreme Court and assigned for error: dismissing the exceptions to the appraisement and to the account,.

      D. MeGonaughy, for appellant.

      R. 6r. MoGreary, for appellee.
   Judgment was entered in the Supreme Court, May 17th 1875,

' Per Curiam.

The appellant’s claim is not upon the fund assigned, and for distribution, and he therefore has no standing in this proceeding. The assignor reserved his exemption of $300 under the Act of 1849. The appellant’s claim on the ground of a special waiver of exemption must be asserted in the usual way by exemption or attachment against the reservation — that is, the goods or money set apart under the assignment, and not passing into the fund. By the assignment the property of the assignor passed to the assignee for the purposes of the trust, and of course was not subject to exemption. The assignee must administer his trust according to the deed creating it; leaving creditors who claim special privileges against the debtor to assert their claims in a way to reach that only which the debtor reserved to himself.

Decree afSrmed with costs and appeal dismissed.


author: Mr. Justice Paxson

text:
    East Brandywine and Waynesburg Railroad Co. versus Ranck.
    1. The measure of damages to an owner for the location, &c., of a railroad through his land, is the difference between the value of the property as a whole before the opening of the road and the value as affected by the road.
    2. The declarations of the owner of the land as to its value, his offer of it at a fixed price and sale of a portion of it, are evidence on the question of damages, as constituting his estimate of its value.
    May 8th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 108, to May Term 1875.
    This case commenced in a proceeding by viewers to assess damages by reason of the construction of the East Brandywine and Waynesburg Railroad through the land of Jacob Ranck. The viewers having reported, there was an appeal to the Court of Common Pleas, where an issue was formed January 29th 1878, as in an action of trespass q. c. in which Jacob Ranck was plaintiff, and the East Brandywine and Waynesburg Railroad Company were defendants.
    At the opening of the trial, January 27th 1875, before Livingston, P. J., the defendants, in answer to the call of the plaintiff, stated that they “ take 98-100ths of an acre, measuring to the top of the slope where there are cuts, and bottom of bank where there are embankments.”
    The plaintiff then called William Kennedy, a surveyor, who had taken a measurement of the land occupied by the company ; he said that the quantity, including 52 perches allowed for fences, was 1 acre 11 perches. The whole length of the road through plaintiff’s land was 1410 feet; his dwelling-house was distant from the road 85 feet 9 inches; his barn 89 feet 9 inches. The entire quantity of the plaintiff’s farm had been 67 acres 77 perches ; 28 acres 64 perches had since been sold and there remained 39 acres 13 perches, owned by plaintiff at the trial. A turnpike road separated the 39 acres from the 28 acres.
    J. Worst testified much in detail as to the damages resulting to the plaintiff; amongst other things he said the road was cut out between the house and barn; he said also that he could not tell the value of the whole tract or the difference of the value by reason of the railroad; that he could not say what it would bring at the time of the trial. The witness then said he thought the damage to the whole farm would be from $2500 to $3000.
    On cross-examination he said, before the railroad was located he thought the land would have brought $200 per acre; it was offered at public sale a year or two previously and bid to $180 to $181 per acre for the whole; the tendency of prices since had been downward. At the time the tract was offered for sale the 28 acres would have been worth $160 per acre; there was no buildings on them.
    The defendant, on cross-examination, asked the witness :—
    “ Whether after the railroad was graded through Ranch's property Mr. Ranck didn’t sell 28 acres north of the turnpike, said tract constituting part of the 67 acres, for $160 per acre, being the highest price the witness states the land, this tract, was worth before the railroad took any part of the 67 acres.”
    On objection the question was not allowed because not cross-examination, and a bill of exceptions sealed. This was the 1st assignment of error.
    The plaintiff examined a great many witnesses, as to the value of his farm generally before and after the location of the road, and as to particular items of damages resulting from making it.
    The plaintiff rested.
    The defendant offered .to prove:—
    “ That the plaintiff, in the fall of 1871, offered to sell this farm of 67 acres for $182.per acre, and that this willingness on the part of Mr. Ranck was absolute, and that the witness informed Mr. Ranck he was willing to take the place at that price if the railroad should be made through it; that he offered to sign a contract of purchase and pay on it the sum of $100 ; if the railroad should be made he would take the farm at that price, and if the railroad should not be made Mr. R. might keep the land and also the $100, and that the contract only failed between the parties because Mr. Ranck wanted witness to take the property at $182 per acre, even if the railroad should not be made ?
    Also, to ask a witness whether or not Mr. Ranck sold this property, the whole 67 acres] in the fall of 3871, before this railroad was located.
    Also, to prove by the witness, that in the fall of 1871, plaintiff informed him that he valued his land at $182 per acre, and was willing to take that for it.
    Also, to prove that in the fall of 1872 Ranck sold off part of this farm, 28 acres and 64 perches, at $160 per acre, and that he was offered $180 for the 39-acre tract at same time.
    These offers were objected to, rejected by the court, and several bills of exceptions sealed. They constitute the 9th, 10th, 11th and 13th assignments of error.
    The defendants examined a great many witnesses upon the questions of the value of the land, the amount of damage resulting from the location of the railroad, &c.
    A witness testified that the plaintiff had offered his property at public sale in 1870. The defendant then proposed to prove by him that the price bid at the public sale, per acre, on the 67 acres, was less than the value' put oh the land by the witnesses in this case.

      The offer was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed. This constituted the 16th assignment of error.
    The defendants offered to prove, by another witness, “that within the last ten days plaintiff stated he would not now take $10,000 for the 39 acres and 13 perches now remaining in his ownership, being the portion on which the railroad is laid; and also to prove, in connection with the foregoing, that this enhancement of the value of plaintiff’s property is the result of the building of the railroad, and is special and peculiar to plaintiff’s property, and is not general with other farm land in the neighborhood.”
    This was objected to by plaintiff, rejected by the court, and a bill of exceptions sealed. The court stated that they would allow defendants to prove the last part of the offer, viz.: That the property has been enhanced in value by building railroad and any advantages that are special and peculiar to plaintiff’s property.
    This constituted the 18th assignment of error.
    After an elaborate charge the jury rendered a verdict for the plaintiff for $2508.
    The defendants took a writ of error ; they assigned twenty-one errors. Those passed on in the opinion of the Supreme Court related principally to the rulings on questions of evidence, and are found in the several bills of exceptions heretofore stated.

      N. H. Yundt and H. M. North, for plaintiffs in error.

      S. S. JEby and N Nllmaher, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, May 25th 1875.

The practice of multiplying exceptions is not to be commended. In this case there are no less than twenty-one. A lesser number would not have diminished the importance of the case. Eor convenience they may be divided into two classes, viz: 1st. Such as relate to the admission or rejection of evidence; and 2d. Such as relate to the charge of the court. It is sufficient to say generally in regard to the latter, that the learned judge of the court below has indicated the principles of law applicable to this case with sufficient accuracy. But we think there was error in excluding the evidence referred to in the 1st, 9th, 10th, 11th, 13th, 16th and 18th assignments of error. The evidence all bore upon the value of the property, either just before or after the railroad was opened through it. The issue was as to the amount of damages caused to this particular property by the opening of the road. It is the settled rule that the measure of damages, in such eases, is the difference between the value of the property as a whole before the opening of the road and its value as affected by the road. It is not necessary to refer to the long line of eases which settle this principle. The more recent ones are the Danville, Hazelton and Wilkesbarre Railroad Company v. Gearheart and the Pennsylvania and New York Canal and Railroad Company v. Madill, both of which were decided within the present year and not yet reported. As evidence bearing upon the value of this property^ Ranck’s own declarations were certainly competent when offered\by the company. His offer of it at a fixed price and a sale of a portion of it were facts proper to go to the jury as constituting his estimate of its value.

It is true the sale of a portion of the property does not fix with certainty its market value as a whole, but it is an element fair to be considered by the jury. If one-half of the property had been sold for more than he had valued the whole of £t prior to the opening of the road, surely the jury would have a right to consider such a circumstance in passing upon his claim for damages. While the evidence referred to was not conclusive, nor perhaps very important, it ought not to have been excluded. The plaintiff had called his neighbors to prove the value of his property prior to the opening of the road, and the injury caused by such opening. It was competent for the defendants to rebut this evidence by the acts and declarations of the plaintiff himself. We do not see any serious error in any of the remaining assignments.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Penn Township versus Perry County.
    1. By an Act of Assembly, Dauphin and Perry counties were required to rebuild a bridge across the Juniata which separated them : the cost not to exceed a sum named. The bridge was built by contract for the sum and accepted from the contractor. The filling up, &c., of the approaches to the end of the bridge in Perry county were not made, leaving it inaccessible. Held, that the county and not the township in which the bridge ended was bound to complete the approaches.
    2. The approach to a bridge and the bridge are both parts of the highway.
    3. A bridge is incomplete until every thing necessary for use has been applied, and every such appliance is part of the bridge.
    May lOtb 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward JJ.
    Error to the Court of Common Pleas of Perry county: Of May Term 1875, No. 25. _
    _ To tbe August Term 1874, of the court below, an amicable action was entered between the township of Penn, plaintiff, and the county of Perry, defendants. A case stated was filed in the action containing these facts :—
    On the 24th of March 1878, an Act of Assembly was passed enacting, that the commissioners of Dauphin and Perry counties be required to erect a public bridge over the Juniata river from a point on Duncan’s Island in Dauphin county to a point in Penn township, Perry county, &c., on the site and piers of a former bridge swept away by the flood of 1865, &c., “and the commissioners are hereby directed to provide means equally from each county,/;and cause the bridge to be erected as speedily as possible,” the cost not to exceed $18,000. The commissioners contracted for the erection of the bridge for $18,000, the specifications provided for the abutments and “ wing-walls to be of sufficient length to retain the embankment, * * * the back of the abutment to be filled in,” &c. The bridge was completed by the contractor according to the specifications ; it was taken off his hands and he paid the full contract price, but it “ was inaccessible by reason of there being no embankment or filling up of the approaches to the bridge between the wing-walls, nor was. the bed of the public road leading to said bridge raised or changed in any way by the contractor so as to enable travellers to get upon the structure of the bridge with their horses and wagons or other vehicles on the Perry county side.” The estimated cost of raising the road-bed and completing the approaches was from $200 to $800.
    The question for the decision of the court was whether it was the duty of the Penn township or the duty of Perry county to have the approaches to the bridge' on the Perry county side completed.
    If the court should be of the opinion that it was the duty of the township to complete the approaches, &c., judgment to be entered against the township for costs; if the court should be of the opinion otherwise, judgment to be entered against the county for costs.
    The court entered judgment for the defendant, which was assigned for error on the removal of the record by the plaintiff to the Supreme Court by writ of error.

      O. A. Barnett, for plaintiff in error.
    A bridge is but a substitute for a ferry: Shearman & Redfield on Negligence 288. It is the duty of the county to erect bridges : Commonwealth v. Monroe County, 2 W. & S. 495, and if any change in a road by reason of making a bridge is necessary the county must do it. At common law the approaches to a bridge are to be made by the county: Shearman & Redfield on Negligence 294, sect. 252; Rex v. Westriding of York, 7 East 588; Rex v. Same, 2 Id. 342 ; King v. Bucks, 12 Id. 192 ; 2 Bacon’s Ab. “ Bridges.” “ Bridge ” imports not only the structure over the stream but its approaches, &c.: Shearman & Redfield on Negligence 295, sect 253. ’

      O. J. T. Melntire, for defendant in error.
    Statutes are to be construed according to the natural meaning of their words and supposed errors cannot be corrected by the courts: Dwarris on Statutes 144, rule 9. A bridge is a structure across a stream for ease, &c., of travellers: Jacob’s Law Diet., Webster’s Diet., ad verbum. Highways and bridges are distinct: Angell on Highways, sect. 40 ; Commonwealth v. Breed, 4 Pick. 460.
   Mr. Justice Gordon

delivered the opinion of the court, May 24th 1875.

Under the provisions of the Act of the General Assembly of 1873, the bridge in question, over the Juniata river, was erected at the joint expense of Dauphin and Perry counties, and was fully completed, except that the space between the wing-walls, on the Perry county side of the river, was not filled in with earth or other material, so as to make the approach to the main superstructure possible. The question presented, in the case stated, for the solution of the court below, was whether the township or county was liable for the expense of this filling, so as to make the bridge accessible to the public, for whose convenience it was erected. The learned judge below held that this liability rested upon the township ; and this on the ground that the wing-walls and earth filling were not technically part of the bridge proper, but rather part of the road leading thereto. We cannot subscribe to this doctrine. • That the approach to a bridge is part of the highway is doubtless true, but so, also, is the bridge itself; and as the construction of this part of the highway is too expensive for the township to bear, therefore it is imposed on the county. The design of bridging is to provide a safe and convenient passage for the public over some stream or ravine, but no such passage'is afforded when the structure cannot be approached. Can a house be said to be finished until there are steps up to its doors or stairs to its chambers? And how can a bridge be said to be completed without the proper means of access ? Certainly this is so necessary to its use, that without it, the structure is a vain thing; utterly useless and of no account. The bridge is incomplete until everything necessary for its proper use has been supplied, and every such necessary appliance is part of the bridge. When, therefore, the Act of Assembly directed the counties of Dauphin and Perry to build this bridge over the Juniata, it meant that these two counties without the aid of the townships should provide a safe and convenient passage or highway over that river, and not merely that they should set up a structure which the public could not reach.

The judgment is reversed, and judgment is now entered on the case stated, in favor of the township of Penn, and against the county of Perry, for the costs of this case, and it is ordered that the record be remitted to the court below for execution.


author: Mr. Justice Woodward

text:
    Stevick versus Commonwealth.
    1. Misdemeanor and felony may be joined in an indictment, except where the offences are repugnant in their nature and legal incidents, and the trial and judgment so incongruous as to tend to deprive the defendant of some legal advantage.
    2. Under the Act of April 3d 1872, the defendant is incompetent to testify if there be a count for felony joined with that for misdemeanor.
    3. It seems in such case that the advantage of the act can be secured only by asking that the several charges be separately tried.
    May 10th 1876.
    Before Ag-new, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Oyer and Terminer of Cumberland county: Of May Term 1875, No. 43.
    This was an indictment found August 24th 1874, against Martin Stevick. It contained three counts :—
    1. Eor committing a rape on Clara E. Gephart.
    ■ 2. Assault and battery on Clara E. Gephart with intent to commit a rape.
    3. Fornication with Clara E. Gephart.
    On the trial August 26th 1874, before Junkin, P. J., the defendant offered himself as a witness, under the Act of April 3d 1872, section 1 (Pamph. L. 34, 1 Br. Purd. 625 pi. 21), which in proceedings against persons charged with offences “ not above the grade of misdemeanor,” allows the defendant upon his own request to be a witness.
    The Commonwealth objected to him as incompetent because the indictment contained a count for felony. On that ground the court sustained the objection, excluded the witness and sealed a bill of exceptions. From the charge of the court below enough of the case is presented for the understanding of the assignment of error and the application of the principles of the opinion of the Supreme Court. The court charged:—
    “ The prisoner, Martin Stevick, is charged by this indictment with rape, defined in law to be the offence of having carnal knowledge of a woman against her will. It is a charge easily made and difficult to defend against; and so sensible is the law of this that evidence is received on behalf of the defence, uniformly disallowed in all other cases. For instance it is permitted the defendant to show, where he can, that the character of the person ravished is bad for chastity — and in order to guard against false charges in cases of this kind — it has been deemed an important test of the sincerity of the woman, that while the commission of the offence was in progress she cried aloud, struggled and complained on the first opportunity, and prosecuted the offender without delay. Where the proof shows that the woman neither struggled, nor cried out, when cries might even by possibility be heard, and delayed invoking the arm of the law for the punishment of the offender, suspicion is justly aroused, that the charge is false and feigned.
    * * * “ But when the female has done all these things, the law gives great consideration to her complaint. [We could expect a grown woman whose cries could by possibility be heard, to cry out, while a girl of tender years could be excused from so doing.]
    “ This little girl Clara swears, that on the 23d of July last, the prisoner overtook her on the road from Newburg (where she had been on business) to her aunt’s, with whom she lived, passed her near a grave-yard, hitched his horse, came a little way back to the stone bridge to meet her; did meet her there and offered her fifty cents to permit him to take liberties with her; she declined the offer, and he then passed on in advance of her a short distance, and when she came up took hold of her, pulled her into a fence-corner by the wayside, and threatened to shoot her if she cried out, then threw her down and had connection with her; penetrated her person, but had not completed sexual intercourse before Mr. Ramp came or was seen coming in the direction they were, whom the defendant perceiving desisted and ran off and hid in the neighborhood of the grave-yard. [She gives details with minuteness, and if believed, makes out the full charge of rape against the prisoner.] She is supported by Mr. Ramp; the gentleman whose, appearance interrupted the movements of the prisoner; in some of the details, such as his coming into view when he did ; her hurrying up after him, and overtaking, and keeping up with him for one and one-half miles, although he was on horseback, and telling him that there was a man back at the grave-yard that she was afraid of. And Mr. Ramp says that he told her that he had seen the bushes. shake, but he had seen no one. Thus she learned that they were not seen by Ramp, and that he had nothing to disclose, yet nevertheless, she tells her aunt about it next morning, and seemed troubled. Now these circumstances are important in determining whether, as is alleged by defendant, she consented to sexual inter-' course. If she had done so she was deeply interested in concealing it, yet she tells her aunt about it next morning, and at that time, as she had ascertained from Ramp, no one knew it but herself and the young man. Then it is pertinent to inquire why should she reveal the occurrence to her aunt ? and if she consented why was she in trouble ? and if she consented why her hurry to keep up with Ramp. Then it appears that, she had no acquaintance with this defendant; they were strangers to each other; never spoke with each other before; lived four miles apart, and he followed her from his home in Newburg on her way to her home, and is it likely that parties who had no previous knowledge or acquaintance should thus consent to sexual intercourse on the highway ? All these things are to be considered by you.

      “But whether the crime of rape, in its legal signification is established, depends upon the following facts being established to your satisfaction, and beyond a reasonable doubt, namely: did the prisoner penetrate the person of this girl Clara ? because unless you are satisfied that such was the case, the offence of rape is not made out, but would amount to an assault and battery, with intent to commit a rape — a very different offence — but is also charged in this indictment under the second count. To convict of rape, it is necessary that the person of the girl should have been penetrated; but any entry, however slight, is sufficient, and there need be no emission of seed. This girl, being over thirteen years of age (she is going on fourteen), was in law capable of consenting to sexual intercourse. Where the consent of the female is obtained, though by fraud and deception, there is no rape; but connection with a woman when insensible or unconscious, from whatever cause, is rape. Absence of assent will constitute rape, except where the female is under ten years’ of age, because children of such tender years are incapable of consenting to connection. But where the consent is obtained by threats of inflicting great bodily injury, that is not the kind of assent which relieves the act from the grade of rape. But even assent after the act is committed is no defence, and if consent is given, but afterwards withdrawn before the act, and the party instead of desisting goes on to consummation, that would be forcible and against consent, and the offence of rape is complete. When there is nothing to deter the woman from resisting, and she is conscious, and able to show dissent and does not, it will be taken as her assent. A doubtful or mixed case, that is, where the evidence renders it uncertain whether the female consented or not, the offence of the rape is not established.

      “ Then did this girl consent ? If she did not, and the prisoner forced her, and prevented her struggles and cries by threatening violence to her person — great bodily harm — and thus he succeeded in penetrating her person but a little, he is guilty of rape, and you should convict. On the question of the consent of Clara, you should consider the probabilities of one so young as thirteen years only being exposed to the promptings of desire, passion and lust. Ordinarily concupiscence does not develop in one so youthful, but sometimes it does, and cases are not infrequent establishing this fact. Yet nature ordinarily gives warning of the age of puberty. * * * Do you discover any such indications about this slender and child-like form ? We see none.
    “ Then looking carefully into all the facts and attending circumstances, do your minds from these facts and circumstances, naturally, without wishing or seeking, reach the conclusion, that the prisoner did assault this little girl, and commit the crime of rape upon her person ; or failing in the accomplishment of his ultimate purpose, did his efforts only amount to an assault and battery, with the intent to commit the crime of rape ? If you are satisfied beyond a reasonable doubt, that he assaulted and consummated his purpose, then find him guilty on the first count of the indictment. If he attempted and failed, find him not guilty of rape but guilty of assault and battery with the intent to commit a rape. If, however, there is a reasonable doubt as to whether the prisoner assaulted this girl for the purpose aforesaid — but you are on the other hand satisfied that this sexual intercourse was by consent of the girl Clara — you should acquit on the first and second counts, and convict on the third count, which is for simple fornication.”
    The jury found the defendant guilty on the first count of the indictment. He was sentenced to one year’s imprisonment in the Eastern Penitentiary.
    He removed the record to the Supreme Court by writ of error, and assigned twelve errors:—
    1. The joinder of a count for rape with a count for fornication.
    2. Rejecting the defendant as a witness.
    4, 6. The parts of the charge in brackets.
    5, 7, 8, 9, 10. Statements by the court as to tne evidence in other parts of the charge. ■
    11. The court should have charged that the crime of rape was not proved, and directed an acquittal.
    12. The sentence was unauthorized — is illegal and void.

      J. Gr. Vale and W. J. Shearer for plaintiff in error,
    as to what constitutes rape, cited Regina v. McRue, 8 Carr. & P. 641; Rex v. Gammon, 5 Id. 321.

      W. F. Sadler (District Attorney), F. F. Beltzhoover and W. H. Miller for Commonwealth, defendant in error.
    As to the right to join felony and misdemeanor in the same indictment; they cited Henwood v. Commonwealth, 2 P. F. Smith 424; Commonwealth v. Birdsall, 19 Id. 482. As to what constitutes rape, they' cited Wharton’s Crim. L. 1137, 1138; Reg. v. Allen, 9 Carr. & P. 31; Rex v. Jordan, Id. 118; Stout v. Commonwealth, 11 S. & R. 177; State v. Lattin, 29 Conn. 389.
   Mr. Justice Woodward

delivered the opinion of the court May 31st 1875.

That counts for felony and misdemeanor may be properly joined in an indictment, has been established by an unbroken series of decisions of this court. Such a joinder is now always permitted except where the offences are repugnant in their nature and legal incidents, and the trial and judgment so incongruous as to tend to deprive the defendant of some legal advantage: Henwood v. Commonwealth, 2 P. F. Smith 424.

The offer of the evidence of the prisoner was properly rejected. The fact that the indictment contained a count for misdemeanor did not make him competent, because it contained also a count for felony. In such a case, the advantage of the Act of the 3d of April 1872, can probably only be secured by asking that the several charges may be separately tried. The decision in Harman v. The Commonwealth, 12 S. & R. 69, seems to indicate the propriety of some such course. It was said there that “ where two offences are charged, if the defendant can make it appear that this mode of proceeding will subject him to unreasonable difficulty or embarrassment on his trial, the court have it in their power to protect him by quashing the indictment or compelling the prosecutor to elect on which count he will proceed and discharge the defendant from the other.”

If the sentences selected from the charge on which the fourth and sixth assignments of error are based, were alone in view, there would be some foundation for the complaint that the court had usurped the functions of the jury. But the charge is to be considered not in disjointed fragments, but as a whole. The elements of the crime of rape were stated, the evidence was submitted with adequate accuracy, and the jury were left to say whether, under that evidence, the charge against the prisoner was made out. That it was not the intention of the court to lay down a legal rule for the decision of the cause by saying that “ a girl of tender years could be excused” for failing to make outcry, is manifest from the instructions subsequently given. Then,” the court said, did this girl consent ? If she did not, and the prisoner forced her, and prevented her struggles and cries by threatening violence to her person — great bodily harm — and thus he succeeded in penetrating her person, he is guilty of rape, and you should convict.” In the same way, the statement that the evidence of the prosecutrix, if believed, made out the full charge of rape, is to be taken in connection with the language of the court in later portions of the charge, by which the facts were submitted to the uncontrolled discretion of the jury. The remaining assignments, except the last, relate to questions that were legitimate subjects for discussion on a motion for a new trial in the court below, but are not open for review on a writ of error.

The twelfth assignment asserts that the sentence was unauthorized, and is illegal and void. No reason is set out in the paper-book for this allegation. It does not appear t.hat the attention of the judge who imposed the sentence was called to the error that is charged ; and there would be hazard of mischief and mistake if this court were to undertake to grope in the record for the grounds on which the allegation rests.

Judgment affirmed.


author: Chief Justice Agnew

text:
    Garrett versus Dillsburg and Mechanicsburg Railroad Co.
    1. The charter of a railroad company cannot be attacked collaterally for bad faith in obtaining it.
    2. The Act of April 4th 1868, authorizes the formation of railroad corporations, by persons subscribing articles of association which are to be filed with the secretary of the Commonwealth, &c., and become the charter of the company, but not until $9000 per mile have been subscribed and ten per cent, paid in good faith; no subscription to be taken without the payment of ten per cent. Garrett subscribed the articles for such corporation, but did not pay the ten per cent.; the articles were filed and the certificate of charter issued. In a suit against Garrett for his subscription after issuing the certificate: Reid, that he was liable although he had not paid the ten per cent.
    3. Until the requisite number of subscriptions and $9000 per mile have been obtained, the project is experimental and the association binds no one.
    4. Until the association is ready to file the articles of association, a subscriber may withdraw.
    5. If a subscriber suffers his name to remain and the articles to be filed, his obligation is final, and he cannot set up his omission against his associates.
    May 10th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Cumberland county : Of May Term 1874, No. 62. (Re-argument.)
    This was an action of assumpsit, brought to the April Term 1872, of the court below, by the Dillsburg and Mechanicsburg Railroad Company against Andrew Garrett. The action was to recover the amount of subscription by the defendant to the capital stock of the plaintiffs. The case of Bucher against the same company, 26 P. F. Smith 306, was a suit on a subscription to the same stock, under somewhat different circumstances.
    The plaintiffs were incorporated under the Railroad Law of April 4th 1868, Pamph. L. 62, 2 Br. Purd. 1211.
    The first section authorized any number of citizens, not less than nine, to form a railroad company, and for that purpose, to sign articles of association, stating the name of the company, &c., the amount of capital, which should not be less than $10,000 per mile, the names of officials, &c. The articles of association, after being acknowledged, &c., as provided by the act, to be filed in the office of the secretary of the Commonwealth and recorded, &c., shall be the charter of the company. The articles of association not to be filed with the secretary of the Commonwealth until $9000 per mile be subscribed, and ten per cent, paid in cash to the directors ; if the whole stock be not subscribed when the articles are filed, &c., the directors may keep the books open until all be subscribed, &c., and every subscriber shall pay ten per cent, of his subscription, in money, in good faith, when he subscribes, “and no subscription shall be received or taken without such payment.”

      The declaration in the first count was that the defendant associated himself with others by written articles, for the purpose of constructing, &c., a railroad, under the name of the Dillsburg and Mechanicsburg Railroad Company, the capital stock to be $350,000, in shares of $50 each; the defendant subscribed for five shares, for which he agreed to pay $250, &c., setting out the articles of association, which prescribed that the name of the association should be the Dillsburg and Mechanicsburg Railroad Company; that the length of the road, as then contemplated, was about seven miles from Mechanicsburg, in Cumberland county, to Dillsburg, in York county; the capital to be $350,000, in shares of $50 each; the names of officers, &c., and the subscription of the defendant to the articles for five shares of the stock, September 2d 1871.
    The declaration contained the common counts also.
    The plea was, “Non assumpsit.”
    The case was tried January 22d 1874, before Junkin, P. J.
    Plaintiff gave in evidence the articles of association, recorded in the office of the secretary of the Commonwealth, November 1st 1871, with the subscription of defendant appended for five shares ; minutes of the association, directing the calls for payment of the whole of the subscription in various instalments, the last being payable May 1st 1871.
    The plaintiff rested.
    The defendant then made the following offers: 1. That the
    company did not proceed to build a road from Mechanicsburg, but from Silver Spring township, a mile distant; that defendant’s subscription was made at a public meeting, at which time, the speakers there stated, that if he put down his name it would not bind him, unless he paid ten per cent, of the subscription money. The offer was objected to, because a change of terminus would be an infringement of corporate duty, to be taken advantage of exclusively by the Commonwealth.
    2 and 3 (substantially the same). That when the articles were offered at a public meeting of the people of Mechanicsburg before the organization Judge Watts, the president of the association, stated that it was contemplated to build the road from Mechanicsburg to Dillsburg; citizens were asked to subscribe, and were told that the meeting was preliminary merely, and the subscribers would not be bound by their subscriptions until they were called on and actually paid ten per cent, of their subscriptions; that they could withdraw their subscriptions before they had paid the ten per cent.; that the meeting was called merely to see what could be done; and that defendant subscribed on these representations, believing them to be true.
    4. That when the charter was about to be applied for, the association not having the requisite number of shares to secure it, Judge Watts, the president, subscribed for 193 shares, anticipating that the Cumberland Valley Railroad Company, who were interested in the project, would take it, and that as president of the company, he directed the treasurer to pay the full amount of the subscription to enable them to secure the charter; that this was done and the charter was thus secured; this being the mode in which the $9000 per mile was paid.
    All the offers were objected to as irrelevant, were rejected and bills of exception sealed.
    The defendant’s point and answer were:—
    Point: If Andrew Garrett, the defendant, at the time he subscribed, did not know what he was subscribing; and was told by the parties who were subscribing at the same time, that his subscription was not binding until the ten per cent, was paid by him; his subscription is not binding and the plaintiff cannot recover.
    Answer: “ These instructions are refused. Defendant was bound to know what he was subscribing. All that was said about the defendant’s subscription not being binding, is of no avail.”
    The court charged: “ The defendant is liable under this evidence and you will find for the plaintiff.”
    The verdict was for the plaintiff for $559.94.
    The defendant took a writ of error and assigned for error:—
    The rulings of the court on the questions of evidence, the answer to his point and the charge of the court.

      W. H. Miller (with whom was H. Hewsham), for plaintiff in error.
    A terminus of the road having been changed the subscription was not binding: Commonwealth v. Pittsburg, 5 Wright 282. The subscription having been made under misrepresentation could not be enforced: Custar v. Titusville, G. & W. & Co., 13 P. F. Smith 385; Crossman v. Penrose Ferry Co., 2 Casey 69; Hackney v. Allegheny Co. Mut. Ins. Co., 4 Barr 185 ; Coil v. Pittsburg F. College, 4 Wright 445 ; Pittsburg & S. Railroad v. Biggar, 10 Casey 457; Campbell v. McClenachan, 6 S. & R. 171; Miller v. Henderson, 10 Id. 290 ; Stubbs v. King, 14 Id 207; Renshaw v. Gans, 7 Barr 117; Ayer’s Appeal, 4 Casey 179. The subscription was invalid without the payment of ten per cent.; Hibernia Turnpike Road v. Henderson, 8 S. & R. 219; Erie & Waterford P. R. v. Brown, 1 Casey 156.

      J. Hayes, for defendants in error.
   Chief Justice Agnew

delivered the opinion of the court, May 24th 1875.

It is clear that the charter of the railroad company cannot be attacked collaterally for bad faith' in obtaining it; Cochran v. Arnold, 8 P. F. Smith 399. The only question, therefore, is whether the subscription of the defendant is illegal and void, because of the non-payment of any part in cash at the time of making it. The law does not expressly require payment of ten per cent, or any other sum when making an original subscription before application for the charter. Whether non-payment of ten per cent, by each subscriber, before application for the charter, is not an act of bad faith to the state, is a different question, and not before us now. It may be said, however, on this point, it is an omission attended with risk. But whether a subscriber who suffers his name to remain on the articles until organization, can defeat his subscription by non-payment of the ten per cent., is the matter before us. It would be unreasonable to hold that payment must be made at the time of subscription. Until the requisite number of subscriptions, and the sum of $9000 per mile are obtained, the project is experimental and inchoate, and the association has no binding obligation on any one, for until these conditions are complied with no charter can be had, and no authority is vested in the directors named in the articles to act. During the experiment it would be unreasonable to require any one to pay in his money; and to whom, during' this period of uncertainty, could the first subscriber pay ? The important period in the transaction is, when the association is ready to file their articles in the office of the secretary of the Commonwealth. Until this time the whole scheme is inchoate, and the subscriber may withdraw. But when he suffers his.name to remain, and the articles to be filed, and organization of the corporation to become complete, he is in a different position. His subscription is there fully set out, and his obligation final. Surely he cannot then be permitted to set up his own omission of duty against his associates. He had his locus pcenitentice and suffered it to pass from him. In the absence of an express provision of law requiring the original subscribers to pay ten per cent, in the manner required of the subscribers after the organization, it seems to us an original subscriber ought not to be permitted to escape from his contract which he suffered to ripen into a finality, by permitting his name to remain until organization became complete, on its faith.

Eor these same reasons it is obvious, that the testimony as to the part Mr. Watts took, and what he said at the meeting to obtain subscribers, was not competent. It was true, as he then stated, that no subscriber would be bound; his subscription then was only experimental; the scheme was inchoate. But when the subscriber suffered it to remain, and to become a part of the articles of association filed, and an organization founded upon it, the case was widely different. Then he could not set aside his subscription. The fact that it was not binding when Mr. Watts spoke did not prevent it from ripening into a perfect obligation when the articles were duly filed as required by law.

Upon the whole case we discover no reason for reversing the judgment. Judgment affirmed.