author: G-heen, J:

text:
    January Term, 1883,
    No. 159.
    March 19, 1883.
    Miskey’s Appeal.
    1. An inquisition, whether of lunacy or habitual drunkenness, where the finding is affirmative, is only prima facie evidence of mental infirmity during the period found, and its effect is to shift the burden of proof to the party asserting capacity. Whore the finding is merely negative it can have no greater effect.
    2. In a proceeding in a court of chancery to set aside an alleged improvident and voluntary deed partly upon the ground that the mind of the grantor had become greatly weakened and impaired by the long continued and excessive use of alcoholic liquor', and not upon the mere technical statutory fact of habitual drunkenness, the conscience of the Court, if satisfied of the truth of the allegation upon the whole of the evidence taken, would not be relieved by the statement that a jury of laymen in another proceeding to declare the party an habitual drunkard had found that the charge was not established.
    3. The absence of a power of revocation in a voluntary deed is a circumstance which throws the burden of proof upon the party taking the benefit under the deed, and in the absence of proof of a distinct intention to make the deed irrevocable, if the other circumstances of the case require it, the conveyance will be set aside.
    4. Where there was a voluntary deed from a son to his father, mother, and sister of his entire estate, the grantor, having at the time a wife, for whom no provision was made, and a son for whom there was an inadequate provision, the father being of affluent circumstances, and the mother and sister being entirely comfortable, and requiring no provision; the deed containing no power of revocation, and there being no proof that the grantor was conscious of that fact, or that his attention was called to it, and a revocable deed being just as serviceable for his purpose as one that was irrevocable; the grantor being at that time, and for many years previously, a person of grossly intemperate habits in an almost constant state of intoxication with mind and body greatly impaired and enfeebled thereby; the relation of parent and child existing between the principal grantee and the grantor; and there being no proof by any of the grantees independently of the deed itself, that it was the intelligent, deliberate, and free act of the grantor, done of his own desire and accord; and no proof that the transaction was righteous and conscionable. and the evidence indicating with great force that the execution of the deed was procured by the active exertion of the parental influence of the father; the deed having been executed without independent advice of counsel representing the grantor alone, and- having been prepared by one who was counsel for the father; the deed will be set aside.
    Before Mercur;C. J., Gordon, Paxson, Trunicey, Stebrett, and Green, JJ. Clark, J., absent.
    Appeal of Elizabeth E. Miskey, Edward H. Hance, and Charles W. Otto, executors of Anthony Miskey, deceased; Elizabeth E. Miskey, Edward H. Hance, and Charlotte E. Hance, his wife, from a decree of the Court of Common Pleas, No. 1, of Philadelphia, County, dismissing the exceptions to and confirming the master’s report in a suit brought by Maria E. Miskey, administratrix of Jacob A. Miskey, deceased, against the appellants and others, to declare void a deed of trust from Jacob A. Miskey to Anthony Miskey.
    On June 26, 1875, Jacob A. Miskey executed a deed of trust to his father, Anthony Miskey, which provided that “the said Jacob A. Miskey for and in consideration of the sum of five dollars to him in hand paid by the said Anthony Miskey at and before the ensealing and delivery hereof the receipt whereof is hereby acknowledged hath granted bargained sold assigned transferred and set over released and confirmed and by these presents doth grant, bargain, sell, assign, transfer and set over unto the said Anthony Miskey his heirs executors administrators and assigns and to him and them doth hereby release and confirm all and singular all the estate and property of him the said Jacob A. Miskey whatsoever and wheresoever including the capital stock certificates of the Pennsylvania Railroad Company the Reading Railroad Company the Lehigh Valley Railroad Company and all other companies, and all prrblic loans, to which he is in any manner entitled in law or equity and every part thereof. To have and to hold the estate and property hereby granted assigned transferred sold released and confirmed or intended so to be and every part thereof and all dividends interest or income accrued, or to accrue thereon to the said Anthony Miskey his heirs executors administrators and forever. In trust however that he the

      the said Jacob

    said Anthony Miskey shall receive the dividends income A
    and interest thereon and at his discretion sell and reinvest the same and any part thereof and pay the dividends in-

      shall be only received by

    terest and income thereof to the said Jacob A. Miskevfor
    A and during the term of his natural life, and from and after the death of the said Jacob A. Miskey then in trust to pay to Clarence A. Miskey his son the sum of ten-thousand-dollars out of the sale of said securities either the whole or any part thereof in the discretion of the said Anthony Miskey as he shall think it best for the interests of the said Clarence and until such payment or payments to pay to the said Clarence interest at six per cent, on said sum of ten-thousand-dollars or so much thereof as he shall not have paid out of the principal sum and as to the rest and residue of all said estate and property In trust to pay assign transfer and divide the same equally and share and share alike to and among the father of the said Jacob A. Miskey, to wit: the said Anthony Miskey, Elizabeth E. Miskey, the mother of the said Jacob A. Miskey and Charlotte E. Hance the sister of the said Jacob A. Miskey and in case either of said three persons shall die before the said Jacob A. Miskey then the share or shares of said deceased persons shall go to and absolutely vest in the survivor or survivors. And it is expressly provided that on the request of the said Jacob A. Miskey in writing consented to in writing by the said Anthony Miskey, he the said Anthony is hereby fully authorized to transfer to the said Jacob A. Miskey such of said securities as it may be expedient in case of any emergency or other sufficient cause to hand over to him for his own individual use, without accounting to the trust hereby created.”
    Jacob A. Miskey died on December 16, 1875, and letters of administration on his estate were granted to his widow, Maria E. Miskey. He left but one child, a son, Clarence A. Miskey. The administratrix, on September 6, 1876, filed a bill in equity, setting forth, inter alia, that the plaintiff was the widow and administratrix of Jacob A. Miskey, who died on December 16, 1875; that she was married to him on October 6,1856; that Jacob A. Miskey had been for many years of very intemperate habits; that she accordingly had commenced proceedings in habitual drunkenness against him, which resulted in the filing of an inquisition on July 2, 1875, which the plaintiff traversed ; that at the time of his death Jacob A. Miskey was possessed of upwards of $70,000, invested in certain stocks (mentioned in the bill); that because of his intemperate habits the plaintiff was compelled to leave her husband on August 14, 1874; that the deed of trust was contrived by Anthony Miskey, Elizabeth E. Miskey, and Charlotte E. Hance to defraud the plaintiff; that the same was procured by fraud and undue influence, and while Jacob A. Miskey was enfeebled by disease, and while his mind was impaired from his intemperate habits, and that it should be declared void for inadequacy of consideration.
    The bill prayed (1) for an injunction restraining the several corporations mentioned in it from allowing a transfer of any stock standing in the name of Jacob A. Miskey; (2) that the deed of trust might be declared fraudulent and delivered up for cancellation ; (3) that the several corporations might be required to allow the plaintiff to transfer said stocks and receive the dividends thereof; (4) further relief.
    The answer of the defendants denied that Jacob A. Miskey had been for many years a man of intemperate habits, or that his health and mental faculties had become impaired by intemperance. It admitted the proceedings in habitual drunkenness against Jacob A. Miskey, and averred that the inquisition found that he was not an habitual drunkard. It denied all the charges of art, contrivance, fraud, combination, or endeavors to possess themselves of Jacob A. Miskey’s property and the exertion of any influence. It denied that he was enfeebled by- disease, or that his mind ivas impaired from any cause at the time of the execution of the said deed, and averred that he was perfectly competent to execute said deed, and that he executed it .of his own 'free will and accord, and that lie was not under the control of Anthony Miskey, but that he had counsel and advice of an upright member of the bar, (William L. Hirst,) who prepared the deed by the order of Jacob A. Miskey ; that there was a good consideration for the execution of the said deed, and that he executed and delivered it without fraud, deception, contrivance, importunity, undue’influence, or any other cause or thing affecting said deed.
    The case was referred to George Junkin, as examiner and master, who filed his report February 24, 1882, in favor of the plaintiff, “reporting as a fact that at the time of the execution of the deed Jacob A. Miskey was an habitual drunkard, and had been so several years previously thereto;” that his “continuous course of dissipation did affect Jacob A. Miskey’s mind, which was not originally a very strong one;” that Mrs. Anthony Miskey and Mrs. Hance were not on good terms with Mrs. Maria E. Miskey, (Jacob’s wife,) whose husband’s affection for her always continued ; ” “that this deed was not the intelligent act of Jacob A. Miskey when in the fair possession of his faculties, and was procured by undue parental influence.” The decree reported was that the deed of trust was fraudulent and void, and should be delivered up to be canceled.
    On April 15, 1882, the Court below-, Peibce and Biddle, JJ., dismissed all the exceptions, confirmed the master’s report, and on April 28, 1882, entered a decree, as.reported by the master, against the defendants, with costs.
    The defendants then took this appeal, assigning as error, inter alia, the action of the Court in decreeing that the deed of trust executed by Jacob A. Miskey to Anthony Miskey was fraudulent and void; in decreeing that the said deed should be delivered up to the complainant to be canceled, and in confirming the master’s report.

      Francis E. Brewster and William, A. Porter (with whom was F. Carroll Brewster) for appellants.
    The deed of trust was the act of Jacob A. Miskey, while in full possession of his mental faculties, and at the time of its execution he was free from the control of any undue influence. His habits, temperate or intemperate, except so far as they produced mental incapacity, do not enter into the inquiry. The onus was on the plaintiff to prove the facts alleged in her bill.
    The finding, a few days before the execution of the deed, of the jury in the habitual drunkard proceedings, that Jacob A. Miskey was not an habitual drunkard, is binding and conclusive against the parties until set aside; 1 Greenleaf on Evid., s. 556 ; Stokes v. Dawes, 4 Mason,' 268 ; Sergeson v. Sealey, 2 Atk., 412; Den v. Clark, 5 Halstd., 217; Hart ». Deamer, 6 Wend., 497; Faulder «. Silk, 3 Camp., 126.
    The fact that a traverse of the finding had been filed by the petitioner is no answer: Purdon’s Digest, 982, pi. 16 ; Frey’s Est., 3 W. N. C., 371; McGinnis v. Commonwealth, 24 Smith, 248; Rogers v. Walker, 6 Barr, 375. But there is no evidence which so bears upon the question of time at which the deed was executed as to affect its integrity, and this the law requires, to an approximate degree at least. Even the master reports that “there was no, or very slight, evidence of any bad or imprudent bargains made” by Jacob A. Miskey.

      George ■ M. Gonarroe and Samuel G. Perkins for appellee.
    The facts alleged in the bill were proved beyond all doubt. The finding of an inquisition of lunacy or habitual drunkenness is but prima facie evidence, whichever way it be ; it shifts the burden of proof, nothing more ; it is not conclusive : Sill v. McKnight, 7 W. & S., 244; Leckey • 'o. Cunningham, 6 P. F. S., 370; Klohs ■». Klohs, 11 P. F. . S., 245; McGinnis v. Commonwealth, 24 P. F. S., 245; Bennet v. Yade, 2 Atkyns, 324.
    It is not necessary, to invalidate a deed, that proof of intoxication or mental incapacity at the time of its execution be adduced: Jones’ Appeal, 37 Leg. Int., 376; S. C., 11 W. N. C., 258.
    N or is the onus on the plaintiff, as appellants contend, to prove specific and actual fraud at the time of the execution of the deed ; the contrary of this is well settled : Cuthbertson’s Appeal, 1 Out., 163; Darlington’s Appeal,
    5 Norris, 518; Jenkins v. Pye, cited by appellants, is overruled by Taylor ®. Taylor, 8 How., U. S. Rep., 201, as to the particular point for which it is relied upon.
    The deed of trust was prepared by William L. Hirst, who was Anthony Miskey’s attorney. Jacob A. Miskey had no “independent advice” of any kind; and there is no proof that the deed was ever read by or to him, or that he understood it.
    Without reference to actual fraud, the absence of a power of revocation in the donor requires clear proof that he expressly directed it to be omitted, and in the absence of such proof the deed will be set aside : May on Voluntary Conveyences, 451; Russell’s Appeal, 25 P. P. S., 269, 289.
    The burden of proof is on the person claiming the benefit under the deed. The beneficiary must clearly and,affirmatively show that the grantor or donor (a) fully knew what he was doing ; (b) was entirely competent to act; (c) was wholly free from undue influence ; (d) had independent advice ; (e) that the transaction was righteous : Comstock «. Comstock, 57 Barbour, N. Y. Rep., 453, 470; Boyd v. Boyd, 16 P. P. S., 283, 293 ; Rhodes v. Bate, Law Rep., 1 Chañe., App. Cases, 252, 257, 259, 261; Turner 'o. Collins, Law.Rep., 7 Chañe., App. Cases, 329; Savery v. King, 5 H. of L. Cases, 627, 657, 663 ; Hoghton v. Hoghton, 15 Beavan, 278, 298, 299, 305, 314; Cooke ». Lamotte, Ibid, 241, 245, 249 ; Boyd ». De LaMontagnie, 73 N. Y., 498.
    October 2, 1883.
   — The opinion of the Court was filed by

G-heen, J:

This was a proceeding on the equity side of the Court below. It was a bill, the purpose of which was to procure a decree, setting aside a voluntary conveyance, made by a son to his father, of the whole of his estate upon . certain trusts therein stated. The property conveyed was personal estate, and by the terms of the deed the income was to be received by the grantor during his life. After his death, the grantee was to pay ten thousand dollars, at his discretion, to the only child of the grantor, and the remainder of the estate was to be divided equally between his father, mother, and sister.

The value of the property conveyed was about $70,000, and the only consideration for it stated in the deed was the sum of five dollars, which, it is said and not denied, was never paid. Jacob A. Miskey, the grantor, had a wife and one child, a son, about fifteen years of age, at the time of his death. No provision whatever was made for the wife and none for the child, except the payment of $10,000, in the manner stated. The deed contained no power of revocation. Miskey’s wife and child were living apart from him at the time of his death, and for some sixteen months prior thereto, the separation having been occasioned, as was alleged and found by the master, by bis habits of gross and long-continued intoxication and disorderly conduct in his household. The deed was impeached upon various grounds, principally want of consideration, undue influence exerted by the father, mother, and sister, great mental weakness resulting from his long-continued and excessive use of intoxicating liquor, and fraud and deception practiced upon him by the donees named in the deed. An answer was filed denying the allegations of the bill, and, after replication, the case was referred to a master, who reported a decree declaring the deed to be fraudulent and void, and ordering it to be delivered up to be canceled, and ordering also a return of the various stocks and securities conveyed by the deed. An examination of the master’s report discloses the various considerations upon which his findings of facts and ■ law were based. He does not find that the deed from Jacob A. Miskey to Anthony Miskey, his father, was procured to be made by actual fraud and imposition practiced upon the son by his father, but that certain facts were shown to have existed, and certain other facts, which ought to appear in support of such an instrument, do not appear, and are not to be found in the testimony, and that the combined effect of these affirmative and negative facts is such that an inference of fraud arises sufficient to invalidate the deed. Thus he finds that the conveyance was purely voluntary and without consideration ; that it contained no provision whatever for the support of the wife of the grantor, and no adequate provision for the support of his only child ; that the grantor had, for several years before, and up to the time of the execution of the deed to his father, been given to habits of gross intoxication and to the excessive and inordinate use of alcoholic liquors, insomuch that he had become, and was, an habitual drunkard ; that the deed contained no power of revocation, and that there was no testimony in the case showing that this fact was known to him, or was, in any manner, explained to him ; that it did not appear that the deed was read over or explained to him at or before its execution; that the grantor was, at the time the deed was signed, and always had been, especially subject to the parental influence of his father, and that, from all the testimony in the case, it was fairly to be inferred that the deed was procured to be made by means of the exertion of that influence ; that the grantor entertained a strong affection for both his wife and his child, and that they had done nothing to forfeit either his affection or their right to adequate protection and support from him and his estate ; that the grantor had become very much impaired, both in mind and body, in consequence of his excessive use of alcoholic liquor, and that the deed to his father was not the intelligent act of Jacob A. Miskey when in the fair possession of his faculties. The master applies the equitable rules that the absence of a power of revocation from a voluntary deed conveying the property of a grantor is a circumstance which may be availed of to set aside the deed on the ground of mistake, and that where one occupying a confidential relation with another takes a voluntary benefit from the person reposing the confidence, he is subject to a duty to prove affirmatively that the conveyance was the intelligent and deliberate act of the grantor, free from the exercise of the influence of the relation existing between the parties. As to many of these findings there is no controversy. There is no question that the conveyance was purely voluntary ; that it contained no provision for the support of the wife, and a provision of but ten thousand dollars for support of the child. As the estate transferred amounted to seventy thousand dollars, we think it clear that ten thousand dollars, or one seventh of the whole, was an inadequate provision for the child, a mere inspection of the deed shows that it contains no power of revocation, and there is no testimony that it was Jacob A. Miskey’s expressed desire that it should contain no such power, or that the fact of its omission was explained to him, or in any way known to him. It is also quite clear that he was much attached to both his wife and child, and treated them with kindness and a sincere affection when in the full possession of his faculties. There is nothing in the testimony showing that either of them had done anything to forfeit his regard for them or their right to his protection and support from his estate. The act of his wife in leaving him was occasioned solely by his habits of intoxication and his conduct when in that condition. The master has so found, and the evidence abundantly justifies his finding on that subject. The only remaining matters of fact involved in the controversy are those which relate to his use of liquor and habit of intoxication, and the effect thereby produced upon his mind, and the extent and character of the parental influence to which he was subject, and its employment in producing the execution of the deed in question.

There is considerable testimony in the case of persons who saw Jacob A. Miskey with greater or less frequency, and saj that they never, or very seldom, saw him intoxicated; most, perhaps all, of these witnesses testify that, in their opinion, he was of sound mind, capable of transacting business, and of making contracts, and of ample testamentary capacity. A number had business transactions with him and base their opinions upon those transactions, and upon the negative fact that they did not see him intoxicated. Of course a great deal of this testimony is of a negative character, and the opinions expressed are necessarily affected to some extent by that consideration. One who is frequently drunk may, nevertheless, in his sober moments, have adequate capacity for the transaction of business. In this case it is not disputed that Jacob A. Miskey accumulated quite a fortune, and there is no evidence that he had made unfortunate transactions or squan-' dered his means. Were there no other evidence in the case except the testimony of the witnesses to whom we are now referring, we should regard the contention of the appellants as sustained on this branch of the case. But when we regard the character and extent of the testimony on the other side, and the great number of the witnesses who testify to facts observed by themselves, of almost daily occurrence, who had the very best opportunities of observation, whose testimony is not contradicted, who had no motive for concealing or exaggerating the truth, we cannot resist the conclusion that the master’s findings on this subject were not only justified, but demanded by the evidence before him. it is not necessary, and would scarcely be proper, to review in detail, in this opinion, the whole of the testimony on this subject. It came largely from bartenders and saloon-keepers from whom he was in the daily habit of obtaining liquor, and from police officers, who, at his father’s request, watched him, cared for him, and frequently took him home in a condition of gross intoxication. One of the witnesses, John Able, junior, who was a saloon-keeper, and had known him for many years, and said he was a drinking man from 1850, described his habit of coming to his saloon and getting his flask or bottle filled every week, and thus testified : “During 1868 and 1869, the bottle would average about once a week, and three times a week with the flask during the same week. The flask, generally Monday, Wednesday, and Friday, and the bottle on Saturday, for ‘home use,’ which was his remark; I considered him a great drinker from 1868 to 1875 — in the fall. There was very little deviation. He was worse as a drunkard toward 1874 and 1875. I have, indeed, seen a great many hard drinkers ; I must say one thing for Jacob Miskey, that during the years 1873, 1874, and 1875 I never saw a man in such a beastly state of intoxication so often as I saw him. It appeared to me, and I saw him nearly every morning, about a quarter of ten in the morning, that he was in a beastly state of intoxication at that hour in the morning, on his way to the office.” After describing Miskey’s habit of constant and excessive drinking with much more detail, the witness said further: “His memory in 1874 and 1875 seemed to be very much impaired, because I don’t think he could recollect what occurred from one hour to another. In my opinion, he was most undoubtedly an habitual drunkard. During 1874 and 1875, I don’t think that, mentally, he retained his manhood.” . . . “In 1874 and 1875, I did not consider him a sane man. He acted like as if his brain was diseased — softening, or something or other — I did not in fact consider he was a responsible man for his actions during those two years. I do not consider that during those two years he was capable of properly conducting business.” . . . “I think those things [a number of facts to which he had testified] indicated that his mind was unsound. He was imbecile or idiotic.”

James M. West, a member of the bar, who occupied an office in the rear of that of A. Miskey & Son, said: “I suppose I saw young Jacob Miskey every day. Had to pass his office-door to get into mine. ... I think he was the hardest drinker for a man of his age that I ever knew. ... I don’t think I ever saw him when he was entirely sober. He would be tolerably free from liquor in the early part of the morning, but by two or three o’clock in the afternoon he would be very drunk. This was a constant occurrence. He manifested it very often by making most terribly uncouth noises in his room, to the great annoyance of myself and those in my office. ... I have had occasion to go into his office, and found him frequently in such a condition that he would be unable to understand and apparently to answer a question that I would ask him. . . . Personally, he had all the appearance of being a habitual drunkard, very much bloated, and the general appearance of a man who drinks hard. ... As far as I can judge, most of the time he was not in condition to attend to any business at all. What little business I had with them I always transacted with the father on that account. I did not consider him fit to attend to business. ... I mean to say this: that my judgment was that he went to bed drunk at night, was so thoroughly saturated with the liquor that it wasn’t worked off Mm in the morning by the night’s sleep, and that when I would see him the next morning he was still under the effects of a previous day’s dissipation.”

Frederick Lay, also a member of the bar, having an office in the same building, across the hall from A. Miskey & Son, testified: “He was unquestionably a constant drinker, there is no doubt about that. . . . His appearance was that of a man who was, to put it plainly, soaked in whisky. . . . He really looked to me, and his speech and action indicated that he was a man who was semi-idiotic, imbecile. I wish to be understood that it was not the mere temporary effect of whisky, but he seemed to have got to that point where he was becoming — well, idiotic is the only expressive word.”

William P. Jones, who was a bartender, first at Prosser’s, on Market street, and afterwards at Price’s restaurant, on Chestnut street, said he first knew Jacob A. Miskey at Prosser’s in 1865, where he would come about three times a week, get a drink and his flask filled, and was then a moderate drinker. Afterwards he saw him at Price’s until in July, 1875. At the latter place, the witness testified, “he used to come there twice every day. I was behind the bar. He would come there about nine or ten — about ten — and get whisky, and I would fill his flask generally every morning, and also at noon. At dinner time he would get his flask filled.” . . . “When I saw him at Price’s he used to drink more. It grew on him. I can hardly describe it. He would take about half of an ordinary bar tumbler full of whisky.”

Being asked how Miskey ranked as a whisky drinker, as a moderate one or otherwise, he answered: “Otherwise. I should say he excelled any one I ever saw.” . . . “I have seen him intoxicated. For the last three years I could hardly tell when he was not intoxicated. He was of very full habit, flushed about his face. He indicated a man that drank very hard. A man that did not know him would say that. I have frequently seen him stagger, generally before three, somewhere in the neighborhood of one, when he came to dinner. Q. So far as you were able to judge during the last three years, what was his mental capacity ? A. He didn’t really seem to know, sometimes, what he had said to me a few minutes before. I judge it was excessive drinking that did it. . . . Q. In your opinion, was he or was he not a habitual drunkard ? A. He was ; a confirmed drunkard for the last three years. I could scarcely tell when he was sober ; if he was, it was in the morning when he first came.” George H. Stocker, who lived next door to Miskey during 1874 and to the time of his death, after describing occasions when he saw him intoxicated, was asked: Q. In your opinion, was Mr. Miskey, dui'ing the time you knew him, an habitual drunkard or not ? A. Yfes, sir; he was undoubtedly; that is, I would say that eighty or eighty-five per cent, of the time that I knew him, I should say he was drunk. Q. What was his capacity, as far as you know, to transact business ? A. I should say he had none at all for transacting business.” William H. Price, who was a restaurateur at Prices’, on Chestnut street, said that he knew Jacob A. Miskey from 1860, but more particularly from 1871, when he came to his father’s restaurant, where he was cashier. “He visited our place, on an averagé, four or five times a day. ... He came there mostly to drink whisky. He would get a small flask filled with whisky, which I judge he carried in his pocket. He would first come between nine and ten, a. m., on his way to his office, I judge. He came to drink whisky. When he first came in the morning, or at no time, was he perfectly sober ; he was generally not sober by no means ; he was trembling, and he acted to me more like a man who was getting off a spree.” The witness further describes the frequency of Miskey’s drinks, and was asked: Q. What was his mental condition? A. Well, I think it was very poor. I have seen a great many drinking and drunken men; I think he excelled all men I ever did see in regard to drink; I don’t think, in my opinion, he was able to take care of himself after he left me. ... I have had conversations with him. He appeared not like a man to me, but a child. He talked more foolishness and he appeared more like a child. His memory was poor.” . . . “I think he was an habitual drunkard.”

The foregoing are mere fragments of a huge mass of testimony of a similar character, -which abundantly justifies the findings of the master, on this branch of the case, in the following words:

“He became more and more the victim of his intemperate and insatiable thirst for whisky. His sprees were frequent, and more than once he had the delirium tremens. He would come home and be brought home by policemen and others at all hours of the night drunk, and when in that condition he would behave himself in a rude, noisy, and unkind manner to his wife and child, breaking the furniture, and behaving in such a manner that the house was not a quiet and desirable home, and he annoyed and disturbed his neighbors. His debauches would last for a week or more, to be followed by sickness at homo, when his wife and mother would nurse him. His habits were such, and so well known, that when he would be away from the place of business of the firm, his father would apply to the police to find him and get him to go home; and this applies to the police officers in German-town as well as those in the qjty. Frequently nurses and police officers were employed by Mr. Anthony Miskey to nurse and take care of him when he was gotten off from his debauches and was sick in consequence.

The result of these debauches, and the excessive amount of whisky he drank, began to tell upon his physical condition. He became slovenly in his habits; his appearance became that of a drunkard; he was bloated and besotted and maudlin-looking; he appeared to be saturated with liquor; he was bloated, and had the general appearance of a man who drinks hard. In the early part of the day he would be tolerably free from liquor, but towards the afternoon he would be well drunk, and would make uncouth noises in his office, such as loud hallooing, imitating cats, barking like a dog, and various other noises. Some of the witnesses describe him as having the appearance of a man soaked in whisky. At the taverns where he had his debauches his performances were so filthy as to be unfit for further description in this report. He reeled in the streets of the city, in the highways of Germantown, and became a shame and a disgrace and humiliation to his own and his wife’s family. . . - At one time Mr. Anthony Miskey consulted physicians in reference to the propriety of putting him in an asylum, but this unfortunately was never done.

He was attended repeatedly bjr his physicians in his sickness, produced by his excessive use of whisky, and he was by them remonstrated with on the subject, but it was of no avail . . . The master has no hesitation in reporting as a fact that at the time of the execution of the deed Jacob A. Miskey was an habitual drunkard, and had been so for several years previously thereto. . . . He had “a fixed habit of drunkenness.” He was “habituated to intemperance whenever the opportunity offered.” And he himself made the opportunity of filling his flask, silently drinking by himself, hiding his stores of whisky in unusual places about the house and getting continually drunk. And this state of things continued during the last six or eight months of his life, covering the period of the execution of the deed of trust. A patient and attentive examination of the testimony satisfies us that all the details of this finding were fully established by the evidence before the master. It was argued that because the proceeding in habitual drunkenness resulted in a finding by the jury that Jacob A. Miskey was not an habitual drunkard, that finding is conclusive upon the parties and cannot now be impeached. We do not regard this position as tenable. All the authorities concur in holding that the inquisition, whether of lunacy or habitual drunkenness, is only prima facie evidence of mental infirmity during the period found, and its effect is to shift the burden of-proof to the party asserting capacity: Sill v. McKnight, 7 W. & S., 244; Leckey v. Cunningham, 6 P. F. S., 370; Klohs v. Klohs, 11 P. F. S., 245 ; McGrinnis v. Commonwealth, 24 P. F. S., 245. As this is the rule in cases where the finding is affirmative of the fact of lunacy or drunkenness, it certainly can have no higher effect where the finding is merely negative. Moreover this is a proceeding in a court of chancery to set aside an alleged improvident deed, partly upon the ground that the mind of the grantor had become greatly weakened and impaired by the long-continued and excessive use of alcoholic liquor, and not upon the mere technical statutory fact of habitual drunkenness. The conscience of the Court, if satisfied of the truth of the allegation upon the whole of the evidence taken, certainly would not be relieved by the statement that a jury of laymen in another xjroceeding to declare the party an habitual drunkard had found that the charge was not established. This would be so even if the evidence in the two proceedings were the same, much more would it be so where, as here, considerably .more testimony was given before the master than before the jury. The proceedings were not the same nor was the issue the same. But in any event, the prima facies of the inquest has been overthrown by the preponderating testimony taken before the master.

The finding of the master, that Miskey was an habitual drunkard, has no relation to the proceeding in habitual drunkenness. It does not affect it one way or the other. He does not declare that, because he has so found, the deed of trust is void, but he uses the facts found by him to show the character of Miskey’s mental qualifications to appreciate and execute the deed. He thus states the bearing of the fact of habitual drunkenness found by him upon the case: “Yet this fact, and all others in this connection, have a material bearing upon the main question, whether the deed was the intelligent act-, uninfluenced, of a man competent, by reason of the full possession of his faculties, to execute such an instrument.”

On the question of parental influence, the master finds that Jacob A. Miskey never passed beyond the parental influence or control of his father. He was with his father as clerk before he attained majority, and, on the day he became of age, his father took him into partnership, and this relation continued for eighteen years. After that, and to the time of his death, he continued under his father’s care and influence. A strong mutual affection at all times subsisted between them, and the master reports that there was no reason to doubt “what a very intelligent witness said about them : ‘There was no man alive that could do with Jacob Miskey what his father could; I think he would do for his father what he would not do for any living person on earth, ‘from his affection and regard for his father.’ ” After the dissolution of the partnership, which was the act of the father, in 1873, he was still employed and paid some compensation by his father for some months, his rent and other bills were paid through his father’s bank account, and the counsel who defended him in the proceeding in habitual drunkenness were employed and paid by his lather. During his last sickness, and for some time before, Anthony Miskey came to his son’s house every day, controlled him in the use of money, paid the servants, and gave orders, shortly before his son’s death, that Jacob’s wife or son should not be left alone in the room with him. Many other facts showing the character and extent of the influence and control exercised by Anthony Miskey over his son, as set forth in the master’s report, are fully established by the testimony, and, indeed, are not contradicted by any opposing testimony. The master also finds that there was no reasonable motive shown for the deed, as Jacob’s lather was a man of wealth and his mother and sisters were well provided for, and, in his rational moments, he always regarded his wife and son with great affection. He further finds, upon uncontradicted testimony, that, apart from the facts off execution and acknowledgment, there is no evidence that Jacob A. Miskey read the deed or heard it read, or that he clearly understood its effect; and that there was no affirmative evidence to show that he knew there was no power of revocation in the - deed, or that he had a deliberate intent to make the deed irrevocable. The master sums up his report on this branch of the case thus: “ The whole testimony in the cause, with all the circumstances surrounding the deed, satisfies the master that the deed of trust was the result of the undue parental influence of Anthony Miskey.” We think this conclusion is a legitimate deduction from the evidence. These facts being established, the legal and equitable principles applicable to the case render it of comparatively easy solution.

In Russell’s Appeal, 25 P. F. S., on p. 289, Agnew, C. J., referring to the effect of the absence of a power of revocation in a marriage settlement, and the necessity of an intent to make the gift irrevocable appearing in the case, says: “The cases cited by the master show very distinctly that the actual intent of the donor is necessary, and in the absence of a certain intent to make the gift irrevocable, the omission of a power to revoke is prima facie evidence of a mistake, and casts the burthen of supporting the settlement upon him, who, without consideration or a motive to benefit him or protect the donor, claims a mere gratuity against one who is sui juris and capable of taking care of his own estate.” The report of Mr. Robb, the master in that case, which was ordered to be printed with the opinion- of the Court, contains a most able and exhaustive review of the law in such cases. He cites a number of recent English cases, which were fully recognized as authoritative in the opinion of the Court. Among others is that of Wollaston v. Tribe, Law Rep., 9 Eq., 44, in which it was held that a person taking a benefit under a voluntary gift which is not subject to a power of revocation has thrown upon him the burden of proving that the gift was meant by the donor to be irrevocable, and that a voluntary gift not subject to a power of revocation, but not meant to be irrevocable, may be set aside by the donor. In Coutts v. Acworth, Law Rep., 8 Eq., 558, it was held that the party taking a benefit under a voluntary settlement or gift containing no power of revocation has thrown upon him the burden of proving that there was a distinct intention on the part of the donor to make the gift irrevocable. In Hall v. Hall, Law Rep., 14 Eq., 365, it was decided that “where, in a voluntary settlement of real estate, a revocable deed would have answered the settler’s purpose as well as an irrevocable one, the absence of a power of revocation is privia facie evidence of mistake, and that evidence can only be rebutted by showing that the settler had his attention pointedly called to the fact that the instrument was irrevocable, and that he could have equally effected his purpose by a revocable one.”

Of course, it. is not pretended, and the master in the present ease did not decide, that the mere absence of a power of revocation is sufficient, of itself, to set aside the instrument. But that fact is a circumstance which throws the burden of proof upon the party taking the benefit; and in the absence of proof of a distinct intention to make the gift irrevocable if the other circumstances of the case require it, the conveyance will be set aside. Other authorities to the same effect are Hugenin v. Baseley, 14 Ves., 273; Phillipson v. Kerry, 32 Beav., 628; Garnsey v. Munday, 13 Am. Law Reg., N. S., 345 ; May on Voluntary Conveyances, 451.

It needs only to be added in this connection that there was no affirmative proof of a distinct intention on the part of Jacob A. Miskey to make this gift irrevocable, nor is there any proof that his attention was ever called to the subject.

In regard to the effect of the parental relation, and the influence thereby exerted upon the transaction, the authorities are very clear, and are strikingly applicable to the facts of this case. This Court has aflopted and enforced the most advanced equity doctrines upon this subject. In Darlington’s Appeal, 5 Norris, 518, Mr. Justice' Trunkey, in delivering the opinion of this Court, said: “ Constructive fraud often exists where the parties to the contract have a special, confidential, or fiduciary relation, which affords the power and means to one to take advantage of or exercise undue influence over-the other. Whenever from such relation considerable authority or influence necessarily exists on the one side and a corresponding reliance and confidence is placed on the other a party will not be suffered to abuse this authority or influence by extracting any advantage to himself. A transaction between persons so situated is watched with extreme jealousy and solicitude, and if there be found the slightest trace of undue influence or unfair advantage redress will be given to the injured party. Owing to the near connection between the parties in many relations, the transaction itself is considered so suspicious as to cast the burden of proof upon the person who seeks to support it, to show that he has taken no advantage of his influence or knowledge and that the arrangement is fair and conscientious.” In Turner, v. Collins, Law Hep., 7 Ch. App., 329, the Lord Chancellor Hatherly said: ‘ If the father himself takes a benefit there arises the jealousy of the Court and we have to consider how the child’s intention was produced. And even if we find the intention which the instrument describes, still the question arises, how has that intention been, produced % Influence is a thing which is assumed as between father and child, not rhat the influence is assumed to be unduly exercised, but that the influence is assumed and it is then thrown upon the father, if he takes any benefit to prove what is hailed the righteousness of the-transaction, and the Court has to see that every proper protection was thrown around the child, and that the child has deliberately and advisedly, and under protection, done that by which his father has obtained a benefit.” In the same opinion the chancellor tiras describes the character of the parental influence to be apprehended and guarded against: “When we talk of j>arental influence we do not think of terror in connection with it — that is not the primary idea — it is not terror and coercion, but kindness and affection which may bias the child’s mind and induce the child to do that which may be highly imprudent, and which, if the child were properly protected, lie -would never do.”

This is the very kind of influence which existed in an eminent degree between Anthony Miskey and his son. In Heguenin v. Baseley, 14 Ves., 273, Lord Eldon thus presents the subject: “ Take it that she intended to give it to him, it is by no means out of reach of principle. The question is, not whether she knew what she was doing, had done, or proposed to do, but how-the intention was produced ; whether all that care and providence was placed round her as against those -who advised her, which, from their situation and relation with respect to her, they were bound to exert on her behalf.” In Hoghton v. Hoghton, 15 Beav. 278, the master of the rolls said: “I am of opinion, as I lately held in a case of Cook v. Lawotte, that whenever one person obtains by voluntary donation a large pecuniary benefit from another, the burden of proving that the transaction is righteous, to use the expression of Lord Eldon in Gibson v. Jeyes, falls on the person taking the benefit. But this proof is given if it be shown that the donor knew and understood what it was that he was doing. If, however, besides obtaining the benefit of this voluntary gift from the donor, the donor and donee were so situated towards each other that undue influence might have been exercised by the donee over the donor, then a new consideration is added and the question is not, to use the words of Lord Eldon in Huegenin v. Basely, whether the donor knew what he was doing, but how this intention was produced, and though the donor was well aware of what he did, yet if his disposition to do so was produced by undue influence, the transaction would be set aside. In many cases the Court, from the relations existing between the parties to the transaction, infers the probability of such undue influence having been exerted.”

In Rhodes v. Bate, Law Rep., 1 Ch., App. Cases, 252, Lord Justice Turner said : “1 take it to be a well established principle of this Court that persons standing in a confidential, relation towards others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the Court that the person by whom the benefits have been conferred had competent and independent advice in conferring them. This, in my opinion, is a settled general principle of the Court, and I do not think that either the age or the capacity of the person conferring the benefit or the nature of the benefit conferred affects this principle.” In Savery v. King, 5 House of Lords Cases, p. 627, the Lord Chancellor said: “I must not be understood as questioning the position that a son may give up all or any portion of his property to his father without consideration. Undoubtedly he may do so, but then it is incumbent on the father, accepting such a benefit, to satisfy the Court before which the transaction is impeached that the son fully understood what he was doing; that no artifice or contrivance was made use of to induce him to do the act complained of, and that the son had competent means of forming an independent judgment. The father is bound to make this out.”

The same doctrine was asserted and applied in the cases of Comstock v. Comstock, 57 Barb., 453, and Boyd v. Be LaMontagnie, 73 N. Y. Rep., Court of Appeals, 498, and by this Court in cases of wills giving benefits to the persons who were instrumental in procuring their execution, in Boyd v. Boyd, 16 P. F. S., 283 ; Cuthbertson’s Appeal, 38 Leg. Ink, 124, and in Jones’ Appeal, 39 Leg. Ink, 52, which was a voluntary deed set aside by the Court below, affirmed by this Court, Sharswood, C. J., saying: “It is sufficient to invalidate any instrument executed by a person of weak intellect, to show that the person in whose favor it is framed held a situation of confidence with respect to the maker of such instrument.”

In reference to the matter of “independent advice” it is to be observed that the deed was prepared by Mr. W. L. Hirst, a very eminent member of the bar of this Commonwealth, but that gentleman had previously been, and was at the time, the counsel of Mr. Anthony Miskey, and, in point of fact, he was employed and paid by the latter to defend bis son in tlie proceedings in habitual drunkenness. In these circumstances Mr. Hirst cannot be regarded as the independent adviser of Jacob A. Miskey in the matter of the deed of trust, in which Anthony Miskey was so largely interested. Did time and space permit, it would be interesting and instructive to point out the many circumstances which indicate the presence and exertion of the parental influence of the father in procuring the execution of the deed of trust. But this work has been so well and ably done in the report of the learned master that it is unnecessary to repeat it here, and the already too great length of this opinion is admonitory of the necessity of curtailment.

It has seemed to us appropriate to dwell with rather more than usual fullness upon our review of the case, because of the unusual character of the questions involved and the relief involved, the very large amount at stake, and the earnestness, zeal, and ability with which the argument was conducted by the learned counsel on both sides. In brief, the controversy presents to us the case of a voluntary conveyance by a son to his father, mother, and sister of his entire estate, less a small provision for the only child of the grantor, the latter having at the time a wife for whom no provision was made, and a son for whom there was an inadequate provision, the father being of affluent circumstances, and the mother and sister being entirely comfortable and requiring no provision ; the deed containing no power of revocation, and there being no proof that the grantor was conscious of that fact, or that his attention was called to it, and a revocable deed being just as serviceable for his purpose as one that was irrevocable; the grantor being at the time, and for many years previously, a person of grossly intemperate habits, in an almost constant state of intoxication, with mind and body greatly impaired and enfeebled thereby; the relation of parent and child existing between the principal grantee and the grantor, and there being no proof by any of the grantees independently of the deed itself that it was the intelligent, deliberate, and free act of the grantor done of his own desire and accord, and no proof that the transaction was righteous and conscionable, and the evidence indicating with great force that the execution of the deed was procured by the active exertion of the parental influence of the father, the deed having been executed without independent advice of counsel representing the grantor alone, and having been prepared by one who was counsel for the father. In our judgment, so strong a combination of circumstances against the validity of the instrument in question is not found in any of the reported cases ; and upon a most patient and careful review of the entire case, we cannot but think that the decree recommended by the master, and made by the Court below, is required by the principles we have considered, and the practice of the courts, is most consonant with the teachings of reason, of justice, and humanity, and, therefore, demands the sanction and approval of this Court.

Decree affirmed at the costs of the appellants.


source: Caselaw Access Project

author: — Per Curiam

license: Public Domain

text:
    July Term, 1882,
    No. 81.
    January 12, 1883.
    Appeal of the Pennsylvania Industrial Home for Blind Women.
    A testatrix devised and bequeathed one sixth of her residuary estate to the “Institution for the Blind of Philadelphia.” There were two institutions for the blind in Philadelphia, one the “Pennsylvania Institution for the Instruction of the Blind,” and the other the “Pennsylvania Industrial Home for Blind Women,” both of which claimed the legacy. There was evidence that the former was commonly known as the “ Institution for the Blind,” and so advertised itself in a paper taken by the testatrix. To the latter institution the testatrix had been a contributor for eleven years. She had attended its entertainments, and had expressed an interest in its welfare. In her private memorandum-book she had entered her contributions to it, along with other contributions to one of her legatees, and in ten of the twelve entries had given its name correctly. Held, That the testatrix, well knowing the correct name of the latter, and not having used it in her will, and having used the name by which the former was popularly and well known, there was no error in awarding the fund to the “ Pennsylvania Institution for the Instruction of the Blind.”
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of The Pennsylvania Industrial Home for Blind Women, from the decree of the Orphans’ Court for the Qounty of Philadelphia,, dismissing their exceptions to the supplemental adjudication upon the second account of the executors, filed in the estate of Mary Shields, deceased.
    Mary Shields died October 8, 1880, leaving a last will and testament, in which, as to the residue of her estate, she devised and bequeathed as follows :
    “One full equal sixth part thereof unto the Deaf and Dumb Asylum, of Philadelphia, absolutely; one other equal sixth part thereof unto the Institution for the Blind, of Philadelphia, absolutely; one other equal sixth part thereof unto the Old Man’s Home, of Philadelphia, absolutely,” &c.
    The executors filed a second account, showing in their hands for distribution, $13,066 65.
    At the audit, February 9, 1882, before Penrose, J., William Chapin testified, inter alia, in substance, as follows:
    I am principal of the Pennsylvania Institution for the Instruction of the Blind, situated at the corner of Twentieth and Race streets. It is not commonly known as the Blind Asylum. Its popular and general name has always been “ The Institution for the Blind.” I was not personally acquainted with Mary Shields. She was a visitor to our store on the Asylum grounds. I did not see her there. I never knew her to make a contribution to our institution. I never received anything of the kind from her brother.
    Cross-examined by Mr. Cadwalader :
    Our institution has been in the habit of advertising its exhibition every week, twice a week. It is described in the advertisements as the Institution for the Blind. That advertisement is published twice a week in the Ledger and the Inquirer. The word “ Instruction ” is not inserted iu it. The Industrial Home is limited to women. The Institution for the Instruction of the Blind has no limitations as to color, sex, or condition. It is the only institution in Pennsylvania for the blind.
    Reexamined by Mr. Sharpless:
    I am aware that the charter of the Industrial Home reads: “Every person who shall annually pay to the treasurer of the Pennsylvania Industrial Home for Blind Women, on or before the first day of May, the sum of $1 or upwards, shall be a member of the said Pennsylvania Home for Blind Women, while such person shall contribute ; and every person who shall pay $20, shall be a member for life.”

      Mary Gute7cunst testified in substance, inter alia:

    I am a manager for the Industrial Home for Blind Women. This home is now located at the corner of Powelton avenue and Saunders avenue, in West Philadelphia. It was moved there from thirty-nine hundred and something Locust street, in October, 1879. It is' immediately opposite the Old Man’s Home. I have known the decedent, Miss Shields, about four years. I had an interview with her at 429 North Seventh street, in her front parlor, on Tuesdhy before her death. I called on Miss Shields, not knowing she was a subscriber to our home. When I handed her the report she did not look at it, but said: “lama subscriber to the Blind Asylum,” or £ £ Blind' Institute.” I think she said “The Blind Institute ; ” either the Blind Asylum or Blind Institute. It was the “Blind Institute.” Then I corrected her, and 1 said to her: “ Miss Shields, this is the Industrial Home for Blind Women.” She said: “Yes, it is the one over in W est Philadelphia.” The report had the name on the back. She told me at the same time, that the lady who collected her subscription was not one of the managers, but that it was a Mrs. B. Then Miss Shields got talking about the institution, and she seemed to take quite an interest in it. She did not then, or at any other time in her conversation with me, refer to the other institution at Twentieth and Hace. I called her attention to it, when she said the “Blind Institute.” I said that was at Twentieth and Hace, and when I said that, she said : “I don’t mean that, I mean the one over at West Philadelphia.” She had been a subscriber to our home since 1870 or 1871. She paid $1 a year, and her brother $1 a year, and, at his death, she doubled her subscription.
    Mr. Sharpless offered in evidence the private memorandum-book of the testatrix, containing twelve entries of contributions to the Industrial Home, the first being “December 21,1S69, Industrial Home for Blind Women, $1 and the last,£ £ December 8,1879, Industrial Home for Blind' Women, $2.” All of these entries were in this form except two in 1873 and 1874, which were £ £ Home for the Blind, $1.” Intermingled with them were entries of contributions to “Old Men’s Home.”
    Counsel who drew her will testified that the name as it was written in the instrument was from a memorandum in her own hand. It was in evidence that she took the Public Ledger and that it contained through the year-1878 an advertisement as follows : “Institution for tlie Blind. Exhibition every Wednesday at half past three, p. h. Select music. Doors open at half past two. Admission, ten cents.”
    The auditing judge filed his report as follows:
    “ On behalf of the Industrial Home for Blind Women, it- was contended by Messrs. Junkin and Sharpless that the words of the will, ‘ the Institution for the Blind of Philadelphia,’ were used by the testatrix in a general sense and as a descriptive merely; that such words being equally applicable to all institutions for the blind in Philadelphia, there being several, the case was one of latent ambiguity, to be determined, under well-settled principles, by parol evidence dehors the will. To show that the Pennsylvania Industrial Home for Blind Women was the institution intended, it was proved that for a number of years the testatrix had been one of its regular contributors ; that her contributions appeared in her own liandTvriting in the same book with those made to the Old Man’s Home — (admittedly one of her residuary legatees, and mentioned in the will in the same paragraph with the Institution for the Blind ;) that she had never been known to contribute to The Pennsylvania Institution for the Instruction of the Blind ; that the Old Man’s Home and the Industrial Home for Blind Women were both located in West Philadelphia, and were naturally, therefore, associated in the mind of the testatrix ; and that on one occasion, two days before her death, she had spoken of the Industrial Home for Blind Women as the “Blind Asylum” or Blind Institute.”
    Opposed to the claim, it appeared, however, that the testatrix was not an officer or manager of the Industrial Home for the Blind ; that she had never been known to visit or to manifest special interest in it; that her contributions were only made when called for by the ladies connected with the house ; and that they amounted in all to about $15 during a period of eleven years. It further appeared that the book showing these and the contributions to the Old Man’s Home, contained also contributions to numerous other charitable or religious corporations which do not appear as legatees in her will; and that no contributions were made in her lifetime toother charities, as e. g. the Deaf and Dumb Asylum, &a., &c., which do.
    Yery little aid, therefore, is furnished to the claim of the Industrial Home by the fact of these subscriptions, or by its association, if such it can be called, in the same book with the Old Man’s Home ; and even that little entirely disappears in view of other matters to be presently mentioned.
    The only additional fact adduced in support of their claim by 'Messrs. Junkin and Sharpless was that, on a single occasion, when, two days before her death. Miss Gfutekunst, a manager of the home, called to invite the testatrix to become a contributor (not being aware that she was already one), she referred to the Home as £ £ the Blind Asylum,” or “the Blind Institute;” the witness being not quite certain which, though inclining to the latter designation.
    If this testimony, standing by itself, were of any importance whatever, its effect is wholly neutralized by the evidence furnished by the subscription-book of the testatrix, in which, while for 1873 and 1874, the only contribution appearing is to the “Home for the Blind,” those made for 1869, ’70, ’72, ’75, ’76, ’77, ’78, ’79, and ’80 are in her own handwriting entered as made to the “Industrial Home for Blind AYomen.”
    With knowledge of the correct title of the Industrial Home for Blind Women and its habitual use by the testatrix thus established, it is impossible to believe that in an instrument of so much solemnity and importance as a will she would employ general and equivocal terms to describe an intended beneficiary with whose precise name she was so perfectly familiar. The names of her residuary legatees, it was proved by Mr. Thorn, by whom the will was prepared, were furnished to him by the testatrix in her own handwriting, and were inserted just as she gave them.
    If it be conceded that the words of the will are descriptive merely, it seems clear from the evidence that the Industrial Home must be excluded from taking under them — if, indeed, a gift to an institution for “ the blind ” would not by its terms exclude an institution for a single class or sex, as against an institution for the blind generally, without qualification of class, sex, or color.
    But the evidence left no doubt in the mind of the auditing judge that the words of the testatrix were not used in a general sense, but as a specific and correct designation of the intended object of her bounty. It was clearly shown that, while “ The Pennsylvania Institution for the Instruction of the Blind” is the corporate name of the institution familiarly spoken of as the Blind Asylum, located at the corner of Pace and Twentieth streets, in the city of Philadelphia, it is well known in the community as “The Institution for the Blind,” the words “Pennsylvania” and “Instruction” being, for brevity, dropped out, just as is often the case with an individual having more than a single Christian name.
    This appears from the testimony of Miss Gutekunst, which has already been referred to, but it was established beyond controversy by the production of the advertisements of the exhibition given by the pupils of- the institufcion on Wednesday of each week, which, for many years, have been published twice a week, in the Public Ledger (a paper shown to have been taken by the testatrix) and in the Inquirer — in which the title is thus uniformly given.
    Upon the whole, it is clear that the only institution of the blind entitled under the will is that to which the award was made by the adjudication of the first account filed by the executor, viz : The Pennsylvania Institution for the Instruction of the Blind; otherwise known, as the testatrix has called it, as “The Institution for the Blind and the share withheld from distribution by the adjudication filed February 7, 1882, is accordingly now so’awarded.”
    Exceptions to the above adjudication were thereupon filed by the Pennsylvania Industrial Home for Blind Women:
    “That the learned judge erred and that new and material testimony had been discovered.”
    Upon these exceptions, the testimony of Rebecca Hall Parker was taken, who testified, inter alia, in substance:
    I knew the decedent, Miss Mary Shields, in her lifetime. I was intimate with her. There was rarely a day passed that we did not see. each other and sometimes oftener. I went with her to entertainments to the Pennsylvania Industrial Home for Blind Women. I know of her being interested in this Industrial Home for Blind Women, in West Philadelphia, by going with her that evening and by her telling me that evening that she was a subscriber to it. I never went with her to the entertainments of the Pennsylvania Institution for Instruction for the Blind, at Twentieth and Race streets, and never remember of her mentioning to me that Institution at all. If I knew her mind at all her sympathies went to working women and any who were in a struggling condition. I think she would rather have helped the one in West Philadelphia —Industrial Home — than the one at Twentieth and Race. I think so from her own kindly disposition towards those who were struggling along, and towards women in particular.
    April 22, 1882. The Court dismissed the exceptions, Hanna, P. J., filing the following opinion :
    “Whether testatrix, in the bequest to ‘ The Institution for the Blind of Philadelphia,’ contemplated ‘The Pennsylvania Institution for the Instruction of the Blind,” or ‘The Industrial Home for Blind Women,’ as the beneficiary, is solely a question of fact. And neither institution being correctly designated, her intention is to be ascertained from the evidence. Her acts and déclarations previous to and contemporaneous with the making of the will constitute the best evidence, and that which is alone admissible to explain and remove the ambiguity arising from the language employed.
    The first-named institution' is popularly known and designated for the sake of conciseness, even by its officers and managers, as £ The Institution for the Blind.’ Its organization dates back many years, and it has not only a city, but State and National reputation. It is one of the public charities fostered by the Commonwealth. Being thus so well known, it is not strange that it is familiarly designated as ‘ The Institution for the Blind,’- or, in still more common parlance, as * The Blind Asylum.’ On the other hand, the foundation of the Home, exclusively for Blind Women, is of comparatively recent date. The testatrix, for a series of years, had been an annual subscriber toward its maintenance, and possessed an accurate knowledge of its corporate title This is apparent from entries in her handwriting in a personal expense-book, wherein she included disbursements for benevolent-objects and subscriptions to religious and charitable societies in which she was interested. But twice in eleven years she incorrectly makes use of the title, ‘ Home for the Blind,’ while in every other instance employs the name, ‘ Industrial Home for Blind Women.’ From this and other facts developed, it cannot be doubted that testatrix was well informed not only of the distinctive title, but the purposes of this deserving charity. And if it was her intention to include -it as one of her residuary legatees, it would seem most natural she would indicate that intention in the same clear and unmistakable manner in which she had during many years recorded her contributions. But on the contrary, when, she furnishes her counsel with a draft of her intended will, in her own handwriting, she indicates as an object of her beneficence ‘The Institution for the Blind.’
    In the absence of any statements and declarations of testatrix, or other equally satisfactory evidence of her intention that ‘ The Industrial Home for Blind Women’ was the charity intended by her as the object of her bounty, and instead of using its corporate title, with which she was familiar, employed a name which, by common usage, had become to be generally applied to another and different institution, to indicate that intention we must reach the same conclusion as the auditing judge. We think the evidence fully sustains his finding, that ‘ The Pennsylvania Institution for the Instruction of the Blind ’ was in the mind of testatrix as one of her residuary legatees, and although inaccurately described, ■was intended in the use by her of the name ‘ Institution for the Blind.’ After a consideration of all the testimony, including that submitted as after-discovered, we see no reason to disturb the finding of the auditing judge. All the facts have been carefully considered by him, and his conclusion, like the verdict of a jury, should not be set aside unless clear error be made to appear.
    The exceptions are dismissed and the adjudication confirmed.”
    The Pennsylvania Industrial Home for Blind Women then appealed and assigned as error the dismissal of the exceptions.
    W. H. Sharpless and George JunMn for appellant.
    The evidence shows that the testatrix meant the appellant' to take under her will. If the evidence is not sufficient to show which institution was meant, the doctrine of ey pres should be applied, and the legacy distributed among all the institutions of Philadelphia whose objects bring them within the intention to benefit the blind.

      John Oadwalader and George W. Thorn for appellee.
    The legatee can take under the name and description by which it is generally known: Newell’s Appeal, 12 Harris, 197. This is not a case of latent ambiguity to be solved by parol evidence, but a bequest to appellee in its popular name: Tucker v. Aid Society, 7 Mete., 188 ; Winkley v. Kaime, 32 N. II., 268 ; Tudor v. Terrel, 2 Dana, 47; Institute v. Norwood, 1 Busb. Eq., 68; Allen v. Lyons, 2 Wash. 0. 0., 475 ; 39 Leg. Int., 258. If parol evidence is admissible, the evidence shows that testatrix intended the legacy for the appellees.
    Where facts have been found by an auditor and approved by the Court below, this Court will not interfere, except for flagrant error: Mengas’ Appeal, 7 Harris, 222; Bull’s Appeal, 12 Harris, 288.
    January 29, 1883.
   — Per Curiam

: While the language of the testatrix, in her bequest to “The Institution for the Blind of Philadelphia,” does not correctly designate either the appellee or appellant, yet it comes nearer the former. The appellee is correctly designated as “Institution,” a word not found in the name of the appellant. But wliat we think more convincing is the Court has found as facts that the testatrix well knew the correct name of the appellant, which she did not use, but did use the name by which the appellee was popularly and well known. If the decree which the Court made is not certainly right, there is an entire failure to prove it to be wrong.

Decree affirmed, and appeal dismissed, at the costs of appellant.


text:
    January Term, 1883,
    No. 289.
    March 29, 1883.
    The Philadelphia National Bank v. Hilgert, Defendant, and The Philadelphia Warehouse Company, Garnishee.
    1. Under the act of March 17,1869, P. L., 8, the interest of the pledgor in pledged property may be attached in the hands of the pledgee.
    2. A creditor, therefore, who has attached under this act and has then proceeded to obtain judgment and thereon has issued an execution attachment against the pledgee as garnishee is not to he preferred to an earlier attaching creditor of such interest under the same act.
    3. The lien of the attachment under this act dates from the time the writ is issued and comes into the hands of the proper officer for service and not from the time of service on the garnishee.
    Before Mercttr, C. J. ; Gordon, Pans on, Trun key, Green, and Clark, JJ.
    Error to Court of Common Pleas, No. 3, of Philadelphia County.

    Attachments under the act of March 17, 1869, by The Philadelphia National Bank, by George C. Carson & Co.,, and by Charles C. Harrison against Charles M. Hilgert, trading as John Hilgert’s Sons, defendant, and The Philadelphia Warehouse Company, garnishee.
    The following facts appear from the sheriff’s return to the writs and from the answers of the garnishee:
    For some time prior to July 31, 1882, The Philadelphia Warehouse Company had advanced moneys from time to time to the defendant Hilgert- upon the security of certain warehouse and wharfinger’s receipts issued by E. A. Landell and by The Philadelphia Ovstermen’s Association for molasses and sugar stored with them and belonging to said Hilgert, and duly assigned by him to the Warehouse Company. Hilgert also gave with these receipts a contract in which he agreed that the Warehouse Company should have the right to sell the property advanced upon and repay themselves, or to sell the receipts, at their option. At the time the above attachments were served the Warehouse Company held twenty-three of these receipts upon which they had advanced $184,000. On July 31, 1882, the goods covered by these receipts, while still in the custody of the wharfingers and warehousemen, were levied upon by the sheriff under four writs of f. fa. issued upon judgments entered that day in favor of William H. Remsen et al. These judgments were fully paid and satisfied from the proceeds of levies and sales, thereunder of other property of Hilgert.
    The following writs of attachment, under the act of 1869, came into the hands of the sheriff for service, on August 1, 1882, in the following order:
    1. That of Gleorge C. Carson & Co., at 2.15, p.m.
    2. That of Charles C. Harrison, at 3.20, p.m.
    3. That of the Philadelphia National Bank, at 3.25, p.m.
    The writs were served upon the defendant by leaving a copy at his dwelling-house with an adult member of the family ; upon the Philadelphia Oystermen’s Association, E. A. Landell, and the Philadelphia Warehouse Company, all named in the writ as garnishees, as follows : Upon the Philadelphia Oystermen’s Association, the Harrison writ was served August 2, 1882, at 11.30, a.m. ; the other writs, August 5, 1882, at 5.20, p.m.; upon E. A. Landell all the writs were served together on August 7,1882, at 3.30, p.m. ; upon the Philadelphia Warehouse Company, the Harrison writ, August 2, 1882, at 12.40, p.m.; that of the bank, August 2, 1882, at 3.22, p.m.; and the Carson writ, August 7, 1882, at 10.05, a.m.-
    The sheriff returned these writs “attached as within commanded, August 1, 1882, subject to prior levies made under four certain writs of fieri facias . . . certain goods and chattels, as per schedule hereto annexed, etc.”
    The Warehouse Company gave the sheriff notice of its claim of property in the goods levied upon ; the sheriff’s rules for interpleaders were made absolute, the narrs and bonds filed as required, and security being entered, the claimant obtained possession of the goods. In view of their perishable nature, the plaintiffs in all the attachments United in a written request to the Warehouse Company that the merchandise should be sold, “ the net proceeds thereof to be subject to all rights therein, as if said sale had not been made.”
    The sale was made as requested, and after repaying their advances and interest, the Warehouse Company made a special deposit of the balance, which, with interest, amounted at the time judgment was given in the court below to $37,140 55, to await the result of the contest between the attaching creditors. Of these, Harrison and the bank had prosecuted their claims to judgment, and after the above balance was ascertained, on October 26, 1882, obtained writs of attachment sur judgment, which were served the same day upon the Warehouse Company as garnishee.
    The sum claimed by Carson & Co., was $12,064 69 ; by Harrison, $12,965 80 ; and by the bank, $30,676 67.
    The cases were heard together in the court below by agreement, and judgment entered first in favor of Carson & Co., and second in favor of Harrison, for the full amount claimed by them, and the balance, $12,110 06, was awarded to the bank, on account of their judgment; Ltjdlow, P. J., delivering the opinion of the Court, as follows:
    “The ingenious and able arguments of the.counsel for the several execution attachment creditors have failed to convince us of the legal correctness of their positions, and we see no reason why they should be preferred to the several attaching creditors under the act of March 17, 1869.
    It is true that at common law the sheriff could not seize the property in the actual manual possession of the garnishees and claimants in the interpleader, because as a principle “goods pawned or gaged for a debt cannot be taken into execution against .the pawnor or lessor:” Watson on Sheriff, 182 ; and hence it followed, as another general principle, that a pledgee might maintain trespass against the sheriff or his vendee under the execution.
    We ai’e also inclined to believe that the same principle must apply to the act of 1869, and that so long as the Warehouse Company had the possession, or right of possession, of the “goods, the sheriff could not seize them, for the act expressly declares, when the goods are not capable of manual seizure, ‘ the same shall be bound by such attachment in the hands or possession of such party from whom it is due or owing, or whose duty it is to account for the same.’
    To this point we agree with the counsel for the execution attachment creditors; further than this we cannot go, for the following reasons :

      First. The act, as to personal property, (for it has been decided that it does not apply to real estate: Bank v. Draper, 8 Norris, 446,) binds something beyond that which is in exclusive possession. The terms of the act are very sweeping; it declares it shall be served ‘ by attaching so much of the money, stock, right in action, evidence of debt, or other property of said party defendant as will be sufficient to pay the debt demanded.’ And again, section 3, ‘ the same shall be bound by such attachment in the hands or possession of such party from whom it is due or owing for the same.’
    When the object of the act of 1869 is considered, it must be evident that it was the intention of the Legislature to reach every description of personal property belonging to an absconding or fraudulent debtor. The vigilant creditor was to be rewarded, not only for his own sake, but as a matter of public policy. To say that a creditor, who has attached under the act of 1869, and then proceeded to obtain a judgment, upon which he issues an execution attachment, shall be preferred to the creditor who first attaches under the act of 1869, is, we think, to pervert the true intent and meaning of the act.
    To render the construction of the act unambiguous, the words ‘ other property ’ are introduced. It is true ‘pledged or pawned property’ is not specified as in the sections 23 and 35 of the act of June 13, 1836, but until it can be established that ‘other property’ does not include all property which may in any event belong to the defendant, we shall adhere to a construction which will defeat any intent or attempt of a fraudulent debtor to escape the legal effect of the act of 1869, and that by simply pawning or pledging his personal property.

      Second. Upon the question of priority of lien, we are also of the opinion that the lien of these attachments dates from the time the writs were issued, and came into the hands of the proper officer for service, and not from the time of service on the garnishee.
    It is admitted that in the absence of ar statute, neither the issue of an attachment, nor,its lodgment in the hands of an officer, confer any rights upon the plaintiff in defendant’s property; it is only when the writ is served: Drake, 263. In this instance, and under the act of 1869, the statute establishes the law, and seems to us to be in conformity with the principle which dictated the act. The law was intended to destroy fraud, and to defeat every effort of a fraudulent debtor to escape the active effort of an honest creditor. If a vigilant creditor may not only attach, but must serve the attachment before he acquires a lien, then, indeed, the object of the law itself will be defeated.
    To avoid just such a question as has been argued in these cases, the law declares: ‘ In case two or more attachments are issued against the same party defendant, the one first in the hands of the proper officer for service shall have the prior lien, and so on as to other writs issued in pursuance of this act, in the order of time in which they are issued to said officer.’ The practice cannot therefore be the same as under other writs of attachment.
    It was argued with great force that a hardship would, by our construction, be inflicted upon an ignorant garnishee. Our answer is, that the law, for wise purposes, has declared what the rule shall be, and also that all parties dealing with one who proves himself to be a disr honest man, must, in the very nature of the case, take the risks incident to an unfortunate position. If fraudulent debtors find no method of escape, it is fair to presume that few will attempt that which must ultimately result in failure, and to adopt a construction which simplifies the machinery of the law is the best method, first, to prevent, and secondly, to crush fraud.”
    The Philadelphia National Bank thereupon took this writ, assigning for errors (1 and 2) the action of the Court in entering judgment for the Philadelphia National Bank in the sum of $12,110 06 and in not entering judgment for the entire balance due the bank by Hilgert; (3 and 4) in entering judgment for Carson & Co. in the sum of $12,064 69, and in entering judgment for them in any sum whatsoever.

      William Henry Ramie for the plaintiff in error.
    The sheriff could not seize the goods under a ji.fa. nor could he attach them under the act of 1869. “To this point,” said the Court below, “ we agree with the counsel for the execution creditors.” Nor did the attachment bind, or pretend to bind, anything but the goods themselves. It is urged, and the Court below so decided, that although the sheriff could not attach the goods themselves, yet, as Hilgert might, in a possible event, have a claim to a margin after the Warehouse Company was paid, this claim was the subject of attachment and was attached. The record shows the contrary ; what was attached was the sugar itself; “'attached" as within commanded, certain goods and chattels, as per schedule hereto annexed, as the property of Charles M. Hilgert.” No equity of redemption or right of action that Hilgert might have was attached ; and until the amount due the Warehouse Company was ascertained, the balance was not subject to attachment of any kind.
    Conceding, however, that the attachments under the act of 1869 did bind something in the hands of the Warehouse Company, then priority of lien will rank as to the time of service upon the garnishees, and not as to the mere time of issuing the writ. It is submitted that, by necessary implication, section 5 of the act of 1869 should be read (the words in italics being interpolated) “In case two or more attachments are issued against the same party defendant, the one first in the hands of the proper officers for service and served shall have the prior lien, and so on as to other writs issued in pursuance to this act, in the order of time in which they are issued to said officer and served.” The plaintiff is bound, in cases of foreign attachment, domestic attachment, and attachment sur judgment, to designate what the sheriff is to do — where he is to go, what he is to attach. Why should the law be otherwise (except for the ita scripta est) under the act of 1869 % Suppose two attachments come into the hands of the sheriff, one on Monday from a plaintiff who knows nothing about any goods of the defendants anywhere, the other on Saturday by a plaintiff whose vigilance has discovered goods and tells the sheriff where to go. The garnish ee is served with the latter writ, reserves enough to pay the plaintiff’s debt, interest and costs, and lawfully parts with the rest. The first plaintiff hears of this, directs the sheriff to attach, and the garnishee, who has parted with all except what will satisfy the second writ, is told that the secret lien of the first writ bound him from the time it came into the sheriff’s hands, although not served. The same interpretation of the act would divest the lien of an assignee for the benefit of creditors under similar circumstances Carson’s writ, although first issued, on August 1, was not served upon the garnishees until August 7. It is submitted that the writs of the bank and Harrison, being first served, should have priority.
    Scott v. Scholey, 8 East, 484; Pierce v. Sweet, 9. Casey, 151; Mathias Sellers, 5 Norris, 490; Rothermel v. Marr, 2 Out., 285; Long’s Appeal, 11 Harris, 297; Baldwin’s Appeal, 5 Nor'., 483.

      J. E. Gowen and E. II. Hanson for Carson & Co.
    The alleged transgression of the sheriff, in seizing the goods for which receipts had been assigned to the Warehouse Company, was not a transgression against the attaching creditors, under whose writs the manual seizure had been made nor against the subsequent attachment-in-execution creditors, but against the Warehouse Company ; and long before the judgment was rendered in the court below, the interest of the Warehouse Company in the property of the proceeds thereof had ceased and the money distributed by the judgment represented only the proceeds of Hilgert’s interest in the property.
    Whether the Legislature acted wisely or not in providing that priority should be determined by the consecutive order in which the writs were delivered to the sheriff, is a matter of no importance. Such provision has been made in terms too clear to be misunderstood.
    Pennsylvania Railroad Company v. Pennock, 1 P. F. Smith, 244; Baugh v. Kirkpatrick, 4 P. F. Smith, 84; Carty v. Fenstemaker, 14 Ohio State Rep., 457; Hale’s Appeal, 8 Wr., 439.
    April 16, 1883.
   — Per Curiam

: The opinion of the learned judge contains a clear and satisfactory statement of the law in its application to these cases, and on that opinion the judgments are affirmed.


author: Per Curiam :

text:
    Jury Term, 1882,
    No. 160.
    January 19, 1883.
    Philadelphia & Reading Railroad Company v. Noar.
    In an action against the railroad company to recover damages for the death of a minor, caused by a collision between a locomotive owned by defendant and a wagon in which the minor was seated with an elder brother, there was evidence that before driving on the track they stopped to look and listen. Held, the witnesses appearing to differ as to the proper place, that whether they stopped at a favorable and suitable place to see and hear an approaching train could not be ruled as a matter of law. Held, further, that the distance from the track and the intervening objects either wholly or partially obstructing the view were questions to be considered by the jury.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ,

      Error to the Court of Common Pleas, No. 2, of Philadelphia County.

    _ Case by Isaac Noar, suing for himself and in behalf of his wife, as parents of Moses Noar, a minor, against the Philadelphia & Reading Railroad Company, to recover damages for the death of Moses Noar. Plea: IN ot guilty.
    On the trial before Hare,- J., the following facts appeared:
    The accident which was the origin of this suit took place about five o’clock on Saturday afternoon, August 16, 1879, on Norris street, just east of Tenth street, in the city of Philadelphia. The main line of the Germantown & Norristown Railroad (operated by the defendant) running out Ninth street crosses Norris street upon a bridge. Adjoining the west side of the railroad, and between it and Tenth street, are two large yards used for the storage of heavy merchandise ; one extending from Berks street to Norris street, and the other from Norris street northward to near Diamond street. Each yard was surrounded by a fence extending along Norris and Tenth streets. That around the southern lot was seven feet five inches high. Access to these yards is obtained by a spur track, which, leaving the main line at a point near Diamond street, descends through the north yard to the lower level, crosses Norris street at its grade and enters the south yard, where it divides into two branches. This track crosses Norris street at a point sixty-five feet distant from the east curb line of Tenth street, passing through gates in the fence. On the afternoon in question, ■which was rainy, with an east wind, the deceased and an elder brother, Leberman Noar, were driving east on Norris street to Tenth street, which is at right angles with Norris street. There is a passenger railway track upon Tenth street, and as the Noars approached this point, a passenger railway car, going south upon Tenth street, was about to cross Norris street. The street car was eleven feet high. Leberman Noar knew that he had to cross the railroad track. On either side of Norris street from Tenth eastward, as stated above, was a fence. In the south yard there was a locomotive attached to a train of cars. The top of the smoke-stack was about thirteen and a half feet from the ground. There was a pile of lumber just inside of this yard rising higher than the fence.

      Leberman Noar testified in substance, inter alia:

    I was going down east. I stopped before I reached Tenth street to see whether there was a train crossing Norris street. When the street car came I waited to let it pass. I waited at Tenth and Norris to let it x^ass. Before the street car entirely cleared me I made a turn towards the rear platform. Walked down Norris street. Drove down Norris street. I mean that I walked the horse down Norris street. I passed behind the'street car. The street car went southward, downward. Then I says to my brother, “Here is the railroad.” I went down Tenth street, and, as I got opposite the gate, the locomotive struck me and threw my brother on the track, killed him, and threw me on the bumper of the engine. I say I stopped just as I reached Tenth street. I stopped to look and listen for the railroad, to see if there was any cars coming. There was no flagman there. I heard no bell. I heard no bell or whistle. , . . There was a lumber pile right at the open gate, from behind where the locomotive emerged. The lumber pile was a good bit higher than the fence was at that time.
    Upon cross-examination, he said:
    I and my brother were both in the wagon. It was an open wagon. ... I came down at a trot as far as Tenth street. I didn’t stop at any place until I got to Tenth street. I stopped just as I got to the west side of Tenth street. ... I stood still. I stood still until the street car passed me, all but, perhaps, the length of the rear platform, and then I kind, of made a curve and went by it. , . .1 knew that there was a track there. ... I was sitting on the wagon, about eight feet high ; that is, my eyesight was eight feet above the ground. ... I slacked. Before you can stop a horse altogether you have to slack him down. I slacked, and then, when I got to Tenth street, I stopped altogether. I mean to say that I came to an absolute standstill. I had to do it to let the car go by.

      William King, for the plaintiff, testified in substance, inter alia:
    I was behind the car, but not on the track, next to the curb. As he came to the crossing the car was in his way and he had to stop. He went between the car and me. After he crossed Tenth street, and was going down a piece, I saw a locomotive.
    Upon cross-examination, he said:
    As he came to the crossing the car was in his way, and he had to stop. He couldn’t go through the car . . . The car was enough ahead of me to make him stop his team before he could pass, and then he could not pass until I drew up a little, in that way, to let him go through. He was passing this way. He couldn’t get far. He was too far advanced to go ahead of the car and to come back; the other way, he had to hesitate a moment and stop there to let the car go by. . . . He was coming down. He might have been in a trot. He might have had his horses pacing along. I don’t recollect that. . . . He drove around in the rear of the street car between me and my wagon. He had to do it. He couldn’t get in front, and had to wait until he could get through, and he came between the car and I.
    “Q. He turned out to the left in order to go behind the street car, and passed between you and the street car ; he didn’t wait until the street car got by ?
    A. Well, that is a pretty particular point. I couldn’t say that he did or didn’t.” . . . Well, it is a particular point to say that he was perfectly still, but he had to stop. I saw him stopping his horse. That is what we would call to stop a horse, to bring him in when you found that there was an obstacle.

      Joseph Yeakel, for the plaintiff, testified in substance, inter alia:

    I saw these two young men driving down . . . When they came down near Tenth street there was a car coming down on Tenth street. I saw they held the horse back. I can’t tell you whether they stopped altogether or not, but I know they held it back and waited until the car passed. He did, still. I saw that. He was kind of driving around.
    Upon cross-examination, he said :
    When they passed me they were going on a trot. They went a regular good trot, and I had my eyes on them from that time until the engine struck them. I saw about how things turned out. I noticed that the car came down and they had to hold the horse back and go around the car. W'hat they did when they were going down on a good trot, down Tenth street, and the street car came, was to pull the horse in and slacken him, and then turned in the rear of the street car. That is what I saw, but they didn’t make much of a turn. I saw they were in a hurry because it looked — it was raining. They wouldn’t like to wait so long, and it seemed to me that they tried to get through before the car had all gone. They made a kind of a little bend. That is the way it looked to me. . - . They had their heads down. I can’t say whether they stopped altogether or not. I don’t mean to say that they stopped, but they were holding back the horse. They had to hold him a little back, because they couldn’t get through on account of the street car there. They slacked the speed of the horse. He wasn’t going so fast there as before. Of course, that is the way they did, but whether they stopped altogether, that I can’t say. I know they held back until the car passed. I can’t say whether they stopped altogether or not. There was nothing to prevent me seeing them if they had stopped.
    Upon reaching the railroad crossing, the locomotive, coming out of the south yard, ^struck the wagon, threw Moses Noar on the track and killed him, and threw Leberman Noar on the bumper of the engine.
    The defendant produced evidence to show that the engine whistle was blown before starting ; that the bell was rung continuously from the time the train commenced moving until the collision ; that a flagman was there and endeavored to stop the plaintiff; that the Noars never slacked a bit, but were going as fast as they could go.
    Counsel for defendant presented the following point for charge: “That, from the evidence in this case,
    Leberman Noar was guilty of negligence in approaching and crossing the defendant’s track at Norris street, and that therefore the plaintiff cannot recover.” '
    The Court declined to charge as requested by defendant.
    May 3, 1882. Yerdict for the plaintiff for $3,500, which by remittitur was reduced to $2,000, upon which judgment was afterwards entered.
    The defendant then took out a writ of error, assigning as error the refusal to charge as requested in the above point, and the submission of the question of contributory negligence as one of fact to the jury.

      Thomas Hart, Jr., for plaintiff in error.
    If the undoubted evidence clearly shows contributory negligence, the Court should say that there can be no recovery : R. R. v. Fortney, 9 Nor., 323 ; Nagle v. R. R., 7 Norris, 35 ; R. R. «. Boudrou, 11 Id., 481; R. R. n. Hoosey, 12 W. N. C., 1. The evidence shows that N oar went on deliberately after seeing, or when he ought to have seen the engine. It will not do to stop where one cannot see, and it is not enough merely to stop and then pass immediately on : R. R. ®. Feller, 3 Norris, 226 ; Carroll v. R. R., 12 W. N. C., 348 ; Gerety v. R. R., 31P. F. Sm., 274; R. R. v. Boyer, 1 Out., 91; R. R. r>. Houston, 5 Otto, 697.

      Henry Reed and Wm. W. Wiltbanli for defendant in error.
    Under the evidence, the question of contributory negligence was for tbe jury: R. R. v. Fortney, 9 Norris, 323. The facts were disputed and the j ury decided them in favor of the plaintiff: R. R. Co. v. Coyle, 5 P. F. Sm., 396; R. R. Co. v. Goodman, 12 Id., 329; Weiss v. R. R. Co., 29 Id., 387.' This is a case for argument on a rule for a new trial, and not a case for review as to suggested error in law: R. R. Co. ®. Coyle & R. R. Co., v. Goodman, supra.

    January 29, 1883. —
   Per Curiam :

This case was clearly one for the jury. The boy ivas riding in a wagon in company with 'his elder brother. They were crossing the track of the railroad, when the wagon was struck by a passing locomotive, and the boy killed. There was evidence that, before driving on the track, they stopped to look and listen. Whether they stopped at a favorable and suitable place to see and hear an approaching train, cannot be ruled as a matter of law under the evidence given. The witnesses appear to differ as to the proper place. The distance from the track, and the intervening objects either wholly or partially obstructing the view, were questions to be considered by the jury, and there was no error in refusing to take the case from them.

Judgment affirmed.