author: Mr. Justice Mestrezat,

text:
    St. Vincent’s Roman Catholic Congregation of Plymouth, Appellant, v. Kingston Coal Company.

      Landlord, and tenant — Lease—Lease for more than twenty-one years— Recording acts — Estate for years — Act of May 28, 1715, 1 Sm. L. 94— Statute of limitations — Reversion—Forfeiture—Surface support — Mines and mining.

    A lease for a term of more than twenty-one years is within the purview of the Act of May 28, 1715, 1 Sm. L. 94, so as to vest an estate for years, and not simply an interesse termini, in the lessee without his entering into possession.
    Where a lease of land for a term of 999 years, excepting the mineral with the right to mine without liability for injury to the surface, is duly recorded, a person whose adverse possession begins after the recording of the lease, and continues for twenty-one years acquires not the title of the owners of the fee, but the title of the estate for years which had vested in the lessee; and as the lessee had no right to surface support, the title by adverse possession against the lessee gives no such right. In such a ease the ouster of the lessee by the persons claiming by adverse possession is not sufficient to start the statute of limitations running against the owners of the land, in the absence of any evidence that the owners had ever forfeited the lease.
    While it is true that the tenant cannot deny the landlord’s title, it is equally true that the landlord cannot oust the tenant and repossess himself of the premises until the tenancy has been terminated. Until that event occurs the tenant has the right to the exclusive possession under his lease against the landlord as well as against any and all other persons who may not have a superior legal or equitable right. Reversioners and remainder-men are not affected by the statute of limitations until the precedent estate has been determined and their right of entry accrues.
    Forfeitures are not favorites of the law, and although a cause of forfeiture exists, it will not be enforced in the absence of affirmative action by the lessor in a contest between the tenant and a third party.
    Argued April 13, 1908.
    Appeal, No. 204, Jam T., 1907, by plaintiffs, from decree of C. P. Luzerne Co., Dec. T., 1905, No. 3, on bill in equity in case of St. Vincent’s Roman Catholic Congregation v. The Kingston Coal Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The court below found the facts to be as follows:
    The plaintiffs’ bill avers (1) their ownership of a certain piece of land in Plymouth township, in this county, containing four and six-tenth acres, and known as St. Vincent’s Roman Catholic Cemetery; and (2) that the defendant is operating a mine beneath it and has threatened to remove all the underlying coal, including pillars needed for the proper support of the surface.
    The defendant’s answer denies that the plaintiffs have any title to any of the coal under the land in question or any right to control or interfere with the mining and removal of the same or any part thereof, alleging (1) that prior to the inception at any title which the plaintiffs may have acquired, a complete and lawful severance of the surface from the subjacent coal had been effected, and (2) that the mineral estate is now vested in the defendant, together with the right to mine and remove all the coal, including pillars, without any obligation to support the surface.
    The prayers of the bill are (1) for an injunction to restrain the defendant from “ mining the coal, pillars or supports ” from beneath the cemetery, “ or in any way endangering or disturbing the surface of the same or any part thereof; ” and (2) for general relief.
    The material facts are found to be as follows:
    1. On and prior to January 9,1866, a large tract of land, embracing that afterwards used as a cemetery, was owned in fee by Henderson Gaylord, ~W. H. Cool, J. S. Mason, E. H. Frishmuth and W. D. Frishmuth as tenants in common. The evidence shows a recorded title in them deduced through mesne conveyance from the commonwealth; the deed from a former owner to Gaylord having been recorded in 1831, and deeds from him to Cool, Mason and the Frishmuths for their several undivided interests having been recorded in 1855.

      2. By a written instrument, dated January 9, 1866, and recorded March 30, 1869, the said owners and their wives leased to one James Dooley for a term of 999 years, at a yearly rental of five cents, the surface or soil of six acres of their said land, adjoining other land of Dooley, and embracing the larger portion of the cemetery lot — all of it, in fact, except a piece at the northwesterly end of the cemetery extending about six and one-half rods in depth and being about eighteen rods wide (the full width of the cemetery inclosure).
    This lease (to Dooley) contains the following reservation and agreement:
    “Excepting and reserving, however, out of the said lot, piece or parcel of ground, unto the said parties of the first part, their heirs and assigns all the coal and minerals under, in and upon the same, and also the right and. privilege of mining and removing all and every part and parcel of the coal and other minerals under and upon the said lot, piece or parcel of land, and every and any part thereof, and of making and driving tunnels, passages and ways, under the surface of said lot, piece or parcel of land, for the purpose of mining and removing any and all the coal and other minerals now owned or may hereafter be acquired or owned by the parties of the first part, their heirs or assigns, on said land or any adjoining or neighboring lands, as fully and entirely as if the said parties of the first part, their heirs or assigns, remained the exclusive owners in fee and still held the exclusive possession of the said surface, right of soil of said lot hereby leased, the said parties of the first part not to transport the said coal and other minerals hereby reserved upon the surface of said lot but in all respects to be at liberty to mine and remove the same and to make and drive tunnels, passages and ways under said surface of said lot and even to remove all pillars or supports and entirely to strip the mine or mines under the said lot, without objection or hindrance and not to be liable to the of the second part heirs or assigns for any injury that may occur to said surface or any building now erected or that may be erected thereafter tihereon by reason of mining and removing all said coal and other minerals or by reason of making or driving said tunnels, passages or ways or removing all coal, pillars or supports or entirely stripping said mine or mines ; and it is further understood that the said parties of the first part their heirs or assigns may drive air shafts through the surface of said lot at any time and in any manner said parties of the first part their heirs or assigns may deem necessary in carrying on their mining operations on said lot, or on adjoining lands. But for any damages done to the said surface by said air shafts the parties of the first part their heirs or assigns are to pay for the said damages, and if the said parties cannot agree the amount as to be paid therefor shall be left to the decision of three disinterested persons one to be selected by each party and if the two cannot agree they shall choose an umpire and the decision of the parties so chosen or of a majority of them, shall be final and conclusive upon the parties .... It is further understood and agreed by the parties of the first part their heirs or assigns that they will leave standing two pillars of coal when mining on or under demised premises, to be each 20 by 24 feet square wherever the party of the second part shall elect within two years of the date hereof, for the purpose of supports to the surface on which buildings may be erected, or the party of the second part may designate and desire to build thereon.”
    It does not appear that Dooley or anyone claiming under him, ever indicated where these two pillars should be located, neither has it been shown that he or they ever entered into possession of the demised premises.
    3. By an instrument in writing dated September 29, 1871, and recorded January 8, 1872, Gaylord, Cool, Mason and the Frishmuths “demised, leased and to mine let” to the Wilkes-Barre Goal and Iron Company, all the coal in, upon and under a tract of land containing 257 acres, including within its limits the whole of the lot here in question. This coal lease grants the right to mine and remove all the coal from all the strata except the upper or “ Orchard ” vein (which does not underlie the cemetery lot), and also excepts the coa,l under two small pieces of land marked on an appended draft— “ surface or right of way for railroad ” (not involved in this controversy) and also excepts from its provisions certain surface land laid off for building lots on two portions of the tract marked, respectively, on said draft — “the surface reserved for building lots” and “surface reserved and sold for building lots ” which latter includes the lot in question in this proceeding. This coal lease contains no provision relieving the mining company, its successors or assigns from the obligation to support the surface nor releasing it from damages for any injury thereto that might result from its mining operations.
    4. The cemetery lot is a part of lot No. 17, Mountain Tier, Third Division of certified lots in' Plymouth township, and is described as follows : Beginning at a corner of Barney street, thence north thirty-four degrees, thirty minutes west, 719 feet (along the line between certified lots Nos. 16 and 17) to a corner ; thence south forty-nine degrees, thirty-five minutes west, 297 feet to a corner; thence south thirty-four degrees, forty-nine minutes east, 695 feet to a corner; thence north forty-nine degrees, forty-five minutes east, 112 feet to a point; and thence north fifty-six degrees, fifteen minutes east, Í85 feet to the place of beginning; containing four and six-tenths acres of land.
    5. As so described the surface of this lot has been fenced and used as a cemetery continuously from the year 1874 until now, by the rector and congregation of St. Yincent’s Roman Catholic Church; and during that period their possession of the same has been actual, hostile, adverse, continuous, visible, open, notorious and exclusive.
    6. There is no evidence of title to this land in the plaintiffs or any of them other than by adverse possession under the statute of limitations, nor of any claim of title by them to the coal beneath the cemetery lot, nor of any entry upon, or exercise by them of any act of ownership with reference to such coal.
    7. Thé coal upon the Gaylord tract was opened into and mined therefrom by its owners as early as 1864, or two years before the date of the Dooley lease and about ten years before the beginning of the plaintiffs’ possession of the cemetery lot. Mining from the Gaylord tract (embracing the coal under the cemetery lot) has continued from time to time as the operations proceeded in the several veins, down to the date of filing of the plaintiffs’ bill. The earliest mining directly under the cemetéry lot, so far as the evidence shows, appears to have been done in the Bennett vein (the second from the surface at that point) “ several years ” before 1881. This was what is known as first mining.
    'A short time before this proceeding was commenced, a committee of St. Yincent’s congregation were notified by the defendant’s superintendent that his company contemplated proceeding with the work of removing the pillars and unmined coal left under the cemetery in the process of first mining.
    8. That such removal without the substitution of sufficient artificial support would endanger the surface is a fact so self-evident that its embodiment in a formal finding would seem to border on the absurd. Nevertheless, the fact is a material one and it is so found.
    The trial judge found as a conclusion of law that the plaintiffs were entitled to the relief which they sought.
    Exceptions to the adjudication were sustained by the court in banc, in an opinion by Eerris, J., which was as follows:
    The trial judge found from the evidence that a lease of surface land, including the greater part of the cemetery lot here in question, had been made in 1866 by the owners of the fee. to James Dooley for the term of 999 years and had been recorded in the proper office before the plaintiffs’ possession began. It was further held that, under the provisions of this lease, the lessee was not entitled to the right of surface support. It was not shown, however, that Dooley or anyone claiming under him had ever entered upon the demised premises. The judge thereupon found as matter of law, (a) that while an interesse termini passed to Dooley, it did not appear that an estate for years in the land had ever vested; (b) that the right of possession, therefore, remained in the owners of the fee; (c) that the plaintiffs’ subsequent entry and possession was adverse, not to Dooley (since he had not perfected his leasehold estate by entry), but to the owner of the freehold, and the title acquired under the statute was their title; and (d) that since a severance between the surface and the subjacent mineral strata had been effected by a prior sale of the underlying coal without parting with the right to adequate surface support, the title which the plaintiffs acquired by adverse possession was the fee in the surface with the right to have it supported.

      The exceptions are based on the claim that the judge erred in holding that Dooley took a mere interesse termini and never acquired (so far as the evidence shows) an estate for years.
    In support of this claim counsel for exceptant contends (1) that the common-law rule (that entry by the lessee is necessary to consummate an estate for years) has been modified by statute, and that the recording of a lease for a term exceeding twenty-one years-has been made the equivalent of an entry for the purpose of consummating the relation of landlord and tenant; (2) that, therefore, when Dooley’s lease was recorded he ceased to be the mere holder of an interesse termini, and became the tenant of an estate for years, entitled to possession even as against his landlord until his term should be ended by efflux of time or by surrender or forfeiture; (3) that entry by a stranger upon the demised premises with adverse possession for twenty-one years (no surrender or forfeiture of the lease being shown) could only effect the leasehold estate, and that the statute would not begin to run against the holders of the fee until right of entry accrued to the latter, which, under the evidence, has not yet occurred ; and, therefore (4) that the estate acquired under the statute by the plaintiffs in the portion of the cemetery lot covered by the Dooley lease was the leasehold interest which that instrument conveyed, which interest, as already stated, did not include the right of surface support.
    In opposition to this argument, it is claimed by the plaintiffs (1) that a lease for years is not within the statutory provision that the recording of a deed or conveyance shall be the equivalent of livery and seizin, since livery of seizin was never required to complete the conveyance of an estate less than freehold, and that, therefore, the trial judge was right in holding that, as no entry under the Dooley lease was shown, the plaintiffs’ entry and possession was adverse to the only estate in the land which was shown to exist, viz.: the fee in the surface with the right of support; and (2) that, even if the recording acts did apply to a leasehold so as to make recording a substitute for entry by the lessee, still, the plaintiffs’ possession being shown to be adverse generally, and not specifically a,s against the tenant for years only, must be held to be adverse to every interest in the land, and that after twenty-one years it ripened into a fee simple title ; and inasmuch. as the owner of the fee had not parted with the right to surface support, that right also, as incident to the fee, was acquired by the plaintiffs under the statute of limitations.
    The exceptions thus present for consideration the following questions:
    1. Did the execution of the Dooley lease in 1866 and the recording thereof in 1869 vest in the lessee an estate for years %

    2. If so, when the plaintiff congregation, in 1874, entered and took possession of so much of the cemetery lot as ivas embraced in the lease, did the statute of limitations, as to such land, begin to run against the owners of the fee or only as against the owners of the leasehold estate ?
    I.
    The fifth section of the Act of May 28, 1715, 1 Sm. L. 94, entitled “ An Act for acknowledging and recording of deeds,” provides as follows:
    “ Y. And be it further enacted, That all deeds and conveyances made or to be made, and proved or acknowledged, and recorded as aforesaid, which shall appear so to be, by indorsement made thereon, according to the true intent and meaning of this act, shall be of the same force and effect here, for the giving possession of seizin, and making good the title and assurance of the said lands, tenements and hereditaments, as deeds of feoffment, with livery and seizin, or deeds enrolled in any of the king’s courts of record at Westminster, are or shall be in the kingdom of Great Britain,” etc.
    Section 6 of the act relates to the effect to be given to the words “ grant, bargain, sell,” in “ deeds to be recorded in pursuance of this act, whereby any estate of inheritance in fee simple shall hereafter be limited to the grantee and his heirs,” and contains this proviso :

      “ Provided always, That this act shall not extend to leases at rack-rent, or to leases not exceeding one-and-twenty years, where the actual possession goes with the lease.”
    Section 8 provides : “ That no deed or mortgage, or defeasible deed, in the nature of mortgages, hereafter to be made shall be good or sufficient to convey or pass any freehold or inheritance, vor to grant any estate therein for life or years, unless such deed be acknowledged or proved and recorded within six months after the date thereof, where such lands lie, as hereinbefore directed for other deeds.”
    There would seem to be no room for doubt that in their use of the word “ deed ” in this act, the lawmakers of the province intended to include, as instruments to be recorded, not only “ conveyances of lands, tenements and hereditaments ” (sec. 2) in the strict technical senses of that phrase, but also leases exceeding one-and-twenty years, and any “deed’’intended “ to grant any estate .... for life or years,” even though the latter is but a chattel interest subject to sale by a constable on an execution issued by a justice of the peace: Bismark B. & L. Assn. v. Bolster, 92 Pa. 123.
    But whether such leases are within the purview of sec. 5 of the act is not so clear. In the case last cited Mr. Justice Trunket speaking, obiter, of a mortgage of a leasehold duly recorded, but not accompanied by possession, says (p. 131): “ Possibly such mortgage is valid (as against execution creditors) under the act of 1715, the record standing for possession.”
    In McKee’s Lessee v. Pfout, 3 Dali. 486, it was held, in construing sec. 5 of the act of 1715, that “ In allowing to deeds recorded the same force and effect as feoffments with livery, the intention is expressly restricted to £ giving possession and seizin, and making good the title and assurance of lands, tenements and hereditaments.’ ” See also Dunwoodie v. Reed, 3 S. & R. 435, *445-6, *454 ; Lyle v. Richards, 9 S. & R. 322, *334. In McKee’s Lessee v. Pfout it was attempted, by a narrow and technical construction of the language of sec. 5, to give to a recorded bargain and sale by a tenant for life the effect of a feoffment with livery of seizin, thus producing a forfeiture of the estate.. Chief Justice Shippen said: “ The legislature has at various periods, and on a variety of subjects, departed from feudal ceremonies and principles in relation to the transfer of property ; but in the present instance the act of assembly meant only to give to a grant of lands a greater effect upon the estate on recording the deed than could previously have been enjoyed without livery of seizin. It never contemplated that circumstance as an instrument to work a forfeiture, on the common-law doctrine of alienation by tenant for life or years.” In commenting upon and. following this case, Chief Justice Gibson, in Estate of Sarah Desilver, 5 Rawle, *111, held that the object and effect of the act was not to make recording the equivalent of a feoffment with livery in all respects, but to make it a substitute for the ancient ceremony for the purpose only of “ giving possession and seizin and making good the title and assurance of said lands,” etc., evidently meaning the title which the recorded instrument was intended to convey. For example, the recording of the Dooley lease should not be held to enlarge the estate for years, intended to be granted into a freehold on the ground that the act declares that a deed when recorded shall have the effect of a “ deed of feoffment with livery and seizin,” but rather that it should have the same effect to give possession and vest an estate for years in the lessee as it would have if accompanied by delivery of possession to the latter. In this connection it may be noted that the words used in the act are “ possession and seizin.” The word “ possession ” would be superfluous if the legislative intent was to confine this provision to estates of freehold, since “ seizin ” is possession of such an estate. But when, upon turning to secs. 6 and 8, it is seen that leaseholds exceeding one and twenty years, and also those for a shorter term when actual possession does not go with the lease, are included in the act, it may, perhaps, be fairly claimed that a reason appears for the use of both words. At common law there might be “ possession ” but could be no “ seizin ” of an estate for years. But it may possibly be argued that, as the proviso to sec. 6 puts leases exceeding twenty-one years on the same footing with those for a term of less duration where actual possession does not go with the lease (see also sec. 3 of the Act of March 18, 1775, 1 Stn. L. 422), neither could properly be held to be within sec. 5 of the act of 1715, for the legislature could not have meant that recording the instrument should have the effect of “ giving possession where possession did not go with the lease, and, moreover, that to so hold would be contrary to the decisions which hold that the act was not intended to enlarge the estate granted. In answer to this argument it is, perhaps, sufficient to say that recording a deed or lease could not possibly be the same thing as giving actual possession of the land, and that the legislative intent was merely to make the one a substitute for the other so far as possession had been necessary to “ make good the title ” to the estate intended to be granted. The main reason for the passage of the recording acts is, as stated in the preamble to the supplementary act of 1775, to prevent the evils arising from secret conveyances and incumbrances by providing for publicity in such transactions. That in this respect a short term lease with “ actual possession ” differs from one where actual possession does not “ go with the lease ” is obvious.
    We think, therefore, that as implied by sec. 8 of the act of 1715, the legislature intended that the recording of a lease for a term exceeding twenty-one years should make it “ good ” and “ sufficient ” to “ grant ” an “ estate ” for “ years; ” and that after such recording actual entry by the lessee should not be necessary “ to make good the title ” to such estate. It follows that the trial judge was in error in holding the contrary.
    II.
    It is earnestly contended by counsel for the plaintiffs that even though the record of the Dooley lease stood for possession so' as to vest in the tenant an estate for years, still, since the possession of the tenant is the possession of the landlord, an ouster of the former would be sufficient to start the statute running against the latter.
    We are unable to assent to this proposition. While forcertain purposes the possession of the tenant is said to be the possession of the landlord (Thompson v. Kauffelt, 110 Pa. 209, 216), this is so only in a qualified sense, not dissimilar to that in which it is said that the act of an agent within the scope of his agency is the act of the principal. The tenant stands for the landlord and holds the premises for him, and strictly in subordination to him, during the continuance of the lease. His possession is adverse to all the world except his landlord or those under whom the latter claims. It is the title of the landlord which gives to the tenant his right of possession. It is quite as true that the title of the landlord is the title of the tenant as that the possession of the tenant is the possession of the landlord. But in neither case would such a statement mean that their rights in relation to the land are identical. Each must respect the right of the other. The tenant may not deny his landlord’s title, nor the landlord his tenant’s right of exclusive possession. No general right of entry accrues to the landlord until the tenancy has been terminated, either by the expiration of the term of the lease or by surrender, or by such hostile action by the tenant as would justify a forfeiture. And until such general right of entry does so accrue the statute of limitations does not begin to run against the landlord and in favor either of a tenant claiming adversely or a stranger : Shepley v. Lytle, 6 Watts, 500, 506 ; Newman v. Rutter, 8 Watts, 51, 54; Marple v. Myers, 12 Pa. 122, 126; Willard v. Earley, 22 W. N. O. 122 ; Trickett, Law of Limitations, secs. 95, 105 ; Greber v. Kleckner, 2 Pa. 289 ; French v. Fuller, 40 Mass. 104. In Marple v. Myers, 12 Pa. 122, it was held to be settled law, “ both in England and Pennsylvania, that reversioners and remainder-men are not within the purview of these statutes (of limitation) until their right of entry accrues by the determination of the precedent estate, no matter how long that may endure. Thus, where there is a valid existing lease for years the right of entry is postponed until the expiration of the' term, and though it may be forfeited by condition broken, yet as the owner is not obliged to take advantage of the forfeiture the continued possession of the tenant for twenty years,' without any subsequent act acknowledging the tenancy, will not be counted adverse.”
    We are, therefore, of opinion that the plaintiff congregation acquired title by adverse possession under the statute.
    1. To an estate for years, that is, for the unexpired term of the Dooley lease, but without the right to require the owners of the subjacent strata to support the surface, in so much of the surface of the cemetery lot as that lease includes, the part so included being described as follows, viz.: “ Beginning at a point on Barney street (on‘Welsh Hill,’Plymouth township, Luzerne county, Pennsylvania) in line of what is known as the Farrell property; thence north thirty-four and one-half degrees west, 612 feet to a corner; thence south forty-nine degrees and thirty-five minutes west about 291 feet, along the northwesterly line of land leased to James Dooley by Flenderson Gaylord et al., by lease recorded in Luzerne county deed book, No. 132, page 3, to the southwesterly line of the cernetery lot, thence south thirty-four degrees forty-nine minutes east 588 feet to a point in the line of what is known as the Black property ; thence north forty-nine degrees forty-five minutes east 112 feet to a point in the line of said property; and thence from said point north fifty-six degrees fifteen minutes 185 feet to the place of beginning.”
    2. That the said congregation acquired title by adverse possession to an estate in fee simple in the surface of the remaining portion of the cemetery lot, together with the right to require the owners of the underlying mineral estate to furnish an adequate support to said surface, the portion of the cemetery last aforesaid being described as follows, viz.: “ Beginning at a corner where the said northwesterly line of the land leased to James Dooley as aforesaid intersects the northeasterly line of said cemetery lot as now inclosed; thence north thirty-four and one-half degrees west 107 feet to the northeasterly corner of the said cemetery lot as now inclosed ; thence south forty-nine degrees thirty-five minutes west 291 feet to a corner in line of what is known as the Dwyer property ; thence south thirty-four degrees forty-nine minutes east 107 feet to a corner of said land leased to James Dooley ; and thence along the northwesterly line of said land to the place of beginning.
    3. That the plaintiffs’ bill should be dismissed as to the portion of the cemetery lot first above described.
    4. That the injunction heretofore issued should be modified as stated in the decree nisi, and made permanent as to the second described portion of the cemetery lot.
    5. That each party should pay the fees of its own witnesses and the costs of subpoenaing them, and one-half of the other costs in the case.

      John McOahren, with him M. J. Mulhall, for appellants.
    —The execution of the lease gave Dooley merely an interesse termini — a right to substitute his actual for the owner’s constructive possession. Until that was done he acquired no estate or interest in the land itself, and the relation of landlord and tenant remained unconsummated: 2 Black. Com. 144; Sennett v. Bucher, 3 P. & W. 392, 393; Williams v. Downing, 18 Pa. 60, 63 ; Nat. Gas Co. v. Phila. Co., 158 Pa. 317, 327.

      May 11, 1908:
    The plaintiffs in this case without in any manner waiving or relinquishing their claim of title by adverse possession to the cemetery lot as asserted and maintained by the pleadings and evidence in this case, now desire to refer to some of the many decisions in other states showing the jealous care and rigid enforcement of the law uniformly exercised by the courts of last resort for the protection of cemeteries and the restraint of acts prejudicial to the resting place of the dead : Boyce v. Kalbaugh, 47 Md. 334; Beatty v. Kurtz, 27 U. S. 566 ; Cincinnati v. White, 31 U. S. 431; Redwood Cemetery Assn. v. Bandy, 93 Ind. 246; Mowry v. City of Providence, 10 R. I. 52; Hook v. Joyce, 94 Ky. 450.
    For eight long years before the church congregation took actual possession of the cemetery lot, Dooley, the lessee, made no effort to comply with the terms of the lease. In such a case the law presumes, that the lessors in virtue of their right to determine or forfeit the lease did so terminate it: McKnight v. Kreutz, 51 Pa. 232.

      A. L. Williams, for appellee, cited: Tost v. Brown, 126 Pa. 92.
   Opinion by

Mr. Justice Mestrezat,

The facts of this case are not in dispute and are correctly stated in the opinion of the learned trial judge. The only question raised by this appeal is whether a lease for years is within the purview of the recording acts of this state so as to vest an estate for years in the lessee without his entering into possession. The learned court below answered the question in the affirmative, and its thorough discussion of the question vindicates its conclusion.

The fee simple title to a large tract of land including the premises in dispute was in Gaylord and others in 1866. By a written instrument dated January 9 of that year and recorded in March, 1869, the owners leased about five acres of the tract to James Dooley for a term of 999 years, excepting and reserving all the coal and minerals with the right to mine and remove all and every part thereof without liability for any injury or damage done the surface. By a lease, dated September 29, 1871, and recorded Januarj»- 8, 1872, Gaylord and others demised to the predessors in title of the defendant company all the coal in and under their land including the lot claimed by the plaintiffs in this action. This lease grants the right to mine and remove all the coal, but does not relieve the lessee from the obligation to support the surface nor release the lessee from damages for injury that might result to the surface from mining1 operations. The plaintiffs claim title by adverse possession which began in 1874, and has continued without interruption since that time to the present. The lot has been for many years and is now used as a cemetery by the plaintiffs.

The plaintiffs filed this bill to enjoin the defendant company, the owner of the coal, from mining and removing the coal in such manner or way as to affect the superincumbent surface. The plaintiffs’ contention is that by the lease to Dooley there passed to him only an interesse termini and not an estate for years in the land, because of his failure to enter into possession of the premises under the lease. It is, therefore, claimed that the possession of the premises remained in the owners of the fee, and that plaintiffs’ subsequent entry and possession were adverse, not to Dooley but to the owners of the fee, and the title acquired by adverse possession under the statute is the title of the owners. If this contention be correct and the plaintiffs’ possession was adverse to the owners and not to Dooley, it follows that the defendant company whose rights to the coal accrued by the lease of 1871 which gave them no right to affect the surface by their mining operations had no authority to mine and remove the coal without leaving proper supports to sustain the surface in its natural and unbroken condition. The defendant’s contention, however, was, and it was sustained by the court below, that the execution and recording of the lease to Dooley prior to the inception of the plaintiffs’ title, vested in the lessee not simply an interesse termini but an estate for years, and that the title acquired by the plaintiffs’ adverse possession under the statute of limitations was the title of Dooley, the lessee, and not that of his lessors, the owners of the fee. This conclusion of the court was rested upon its construction of the act of 1715, which makes the recording of an instrument a substitute for a feoffment with livery, thereby “ making good the title and assurance of the said lands, tenements and hereditaments as deeds of feoffment with livery and seizin.” As pointed out in the opinion of the learned judge, the Dooley lease was within the intendment of the recording acts and the effect of recording it ivas equivalent to entry into possession under the lease and consequently vested in the lessee an estate for years.

Dooley had a leasehold estate in the surface, and the entry by the plaintiffs in 1874, five years after the recording of his lease, was adverse and hostile to his estate. It was Dooley’s possession that the plaintiffs attacked when they entered in 1874. The owners of the fee had no right at that time to the possession of the surface as against Dooley. So far as the facts disclose, the owners had not forfeited the lease and had no right to forfeit it. They have never asserted any right to forfeit the lease, and so far as this record shows the Dooley lease was in 1874, and has since been in full force and effect.

The contention of the appellants that the ouster of the tenant, Dooley, by the plaintiffs would be sufficient to start the statute running against the owners of the land is not tenable. It is true that the tenant cannot deny the landlord’s title, but it is equally true that the landlord cannot oust the tenant and repossess himself of the premises until the tenancy has been terminated. Until that event occurs, the tenant has the right to the exclusive possession under his lease against the landlord as well as against any and all other persons who may not have a superior legal or equitable right. Reversioners and remainder-men are not affected by the statute of limitations until the precedent estate has been determined and their right of entry accrues : Marple v. Myers, 12 Pa. 122. This proposition is obviously correct, as it would be most inequitable and unjust to permit the statute of limitations to run against the reversioners or remainder-men until their right of possession accrued and it could be enforced by a proper action. So long as their bands are tied and they are unable to assert their right of possession, they are in no default and the law imposes upon them no penalty. It is a universal rule, with no exceptions so far as we are advised, that the statute of limitations does not begin to run against a party until his right of action accrues.

Forfeitures are not favorites of the law, and although a cause of forfeiture exists, it will not be enforced in the absence of affirmative action by the lessor in a contest between the tenant and a third party. There is nothing whatever in this record to show any cause of forfeiture of the Dooley lease nor that the lessors ever contemplated a forfeiture of the lease and a repossession by them of the leased premises. The lessors had unquestionably the right to permit Dooley to exercise his rights under the lease notwithstanding he may not have complied with its terms. While they might have enforced a forfeiture at any time that it occurred, it was not compulsory upon them but wholly discretionary and at their pleasure; and if they failed to exercise that right, the plaintiffs, whose only title to the premises is adverse possession, are not in a position to enforce the lessors’ right of forfeiture.

The fears of the learned counsel of the plaintiffs that the graves of the dead may be desecrated do not appear to have any substantial foundation. The plaintiffs, and not the defendant company, instituted this action to determine the right of the defendant to remove the coal under the cemetery. The defendant, through its counsel, disavows any intention to exercise its right of withdrawing support from the surface, and thereby endangering the graves in the cemetery. By defending this action, the defendant does not necessarily declare its intention to remove all the coal under the cemetery and thereby break and injure the surface. Its title has been attacked by the plaintiffs, and it was, therefore, put upon the defensive and required .to protect the title or surrender it'to the plaintiffs. Neither sentiment nor any other consideration required it to submit to an attack made by a party who had no paper title to the premises, and who had record notice of the defendant’s title. We have no doubt of the sincerity of the defendant company in disavowing its intention to exercise its right to mine the coal so as to affect the surface of the cemetery lot.

The assignments of error are overruled and the decree is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Keystone Brewing Company, Appellant, v. Canavan.

      Foreign attachment — Judgment for want of an appearance — Assessment of damages — Pleading—Nulla tona — Duty of garnishee.

    To support an assessment of damages in a foreign attachment after judgment against the defendant for want of an appearance, the record should show that a rule had been taken by the plaintiff, that in pursuance of the rule the damages had been assessed, and that evidence had been produced before the prothonotary upon which the assessment had been made. Mere figures and a calculation on the back of the praecipe directing the entry of judgment, are not sufficient to support the assessment, where there is nothing whatever upon the docket to show that damages had been assessed at all, or that judgment had been entered for any amount whatever. The proceeding is statutory, and the record should disclose that the damages had been assessed in compliance with the statute.
    A defective assessment of damages in the judgment on a foreign attachment against the defendant, may be taken advantage of by the garnishee under the plea of nulla bona on the trial of the cause.
    It is the duty of a garnishee in a foreign attachment to protect his creditor's interest by resisting the claim of the plaintiff, unless the latter has complied strictly with the statute in procuring the judgment against the defendant and assessing the damages thereon.
    If the defendant is in court as in the cases of Poor v. Colburn, 57 Pa. 415, and First Nat. Bank v. Trainer, 209 Pa. 387, the garnishee is under no obligation to object to irregularities, inasmuch as the defendant is in court to protect himself.
    Argued April 14, 1908.
    Appeal, No. 339,- Jan. T., 1907, by defendant, from judgment of O. P. Luzerne Co., Oct. T., 1901, No. 579, for garnishee non obstante veredicto in case of the Keystone Brewing Company v. Thomas Canavan, defendánt, and Thomas Forestal, garnishee.
    Before Mitchell, C. J., Fell, Mestbezat, Pottee and Stewaet, JJ.
    Affirmed.
    Scire facias sur foreign attachment. Before Halsey, J.
    The facts appear by the opinion of the Supreme Court.
    Yerdict for plaintiff for $2.132. Subsequently the court entered judgment for garnishee non obstante veredicto.

      Error assigned was in entering judgment for garnishee non obstante veredicto.

      May 11, 1908:

      M. J. Mulhall, for appellant.
    Under any aspect of the case the judgment, which was for want of an appearance, was good, even if the assessment of damages were irregular: Poor v. Colburn, 57 Pa. 415.
    It was held in the case of O’Connor v. O’Connor, 2 Grant, 245, that a garnishee in a foreign attachment in a scire facias against himself cannot set up as a defense, that the judgment against the original defendant was not liquidated according to the rules of court. Execution attachments are governed by the law relating to foreign attachments, and it has been expressly held in First National Bank v. Trainer, 209 Pa. 387; Poor v. Colburn, 57 Pa. 415, that “ after plea of a nulla bona the regularity of the process cannot be questioned; the plea is a waiver of such irregularity.”

      Edward A. Lynch, with him James EL. Shea and Moses LI. Salsb-ury, for appellee.
    It cannot be contended, under the authorities, that a scire facias can issue against a garnishee in foreign attachment without the assessment of damages against the defendant: Thornton v. Bonham, 2 Pa. 102 ; Pancake v. Harris, 10 S. & R. 109.
    In a proceeding by foreign attachment to reach the property of a nonresident who has not been served, and who has no notice of the suit, the loose method pursued in this case is without precedent or judicial sanction to support it: Seymour v. Fulton, 9 Pa. Dist. Rep. 611 ; Hampton v. Matthews & Shaw, 14 Pa. 105; Oliver v. Becker, 13 Luzerne Leg. Reg. Rep. 15.
   Opinion by

Mr. Justice Mestrezat,

This is an action of foreign attachment against Thomas Canavan, defendant, and Thomas Forestal, garnishee. The writ was issued January 31, 1901. There was no appearance for the defendant, and on August 7, 1901, the plaintiff’s counsel by praecipe filed with the prothonotary directed him to enter judgment against defendant in above case for want of an appearance.” Thereupon the prothonotary made the following entry in the record of the case on the continuance docket: Now, August 7, 1901, by praecipe of plaintiff’s attorney filed, judgment is entered against defendant for want of an appearance. (See files.) ” It appears from the statement in the opinion of the learned trial judge, although the record as certified to us does not disclose the fact, that the prothonotary entered, judgment against the defendant for $2,370.12. Aside from certain figures and a calculation on the back of the praecipe directing the entry of judgment, there is nothing to indicate by what method, or upon what proof, the prothonotary assessed the damages. The continuance docket does not show that the damages were assessed at all, or that judgment was entered for any amount whatever. That record should show that a rule had been taken by the plaintiff; that in pursuance of the rule the damages had been assessed, and that evidence had been produced before the prothonotary upon which the assessment had been made. The proceeding is statutory, and the record should disclose that the damages had been assessed in' compliance with the statute.

The scire facias accompanying the writ of attachment was served upon the garnishee and properly returned on the day the writ was issued. On the same day the plaintiff filed interrogatories and entered, a rule on the garnishee to appear and answer on or before August 30, 1901. The garnishee filed an answer to the interrogatories denying that he had any estate or effects of the defendant in his hands, and on November 11, 1901, pleaded nulla bona, with leave, etc. The case was tried in 1905 and a compulsory nonsuit was entered against the plaintiff, which the court subsequently struck off. The case was again tried in April, 1906. At the conclusion of the testimony in this trial the garnishee’s counsel requested the court to direct a verdict for the defendant. The court, however, submitted the case to the jury which returned a verdict in favor of the plaintiff. Subsequently on motion of the garnishee’s counsel, the court directed judgment non obstante veredicto in favor of the garnishee. From that judgment we have this appeal by the plaintiff. The ground on which the learned trial judge entered judgment in favor of the garnishee was that the damages had not been assessed against the defendant in the attachment in compliance with the Act of April 9, 1870, P. L. 60, 2 Purd. (13th ed.) 1721. The court also held that this irregularity or defect in the judgment against the defendant could be taken advantage of by the garnishee under the plea of nulla bona on the trial of the cause. The plaintiff denies the correctness of both these propositions, and contends that the damages were properly assessed, and if not the garnishee could not raise the question under his plea of nulla bona on the trial of the cause or, subsequently, on a motion for judgment non obstante veredicto.

The act of 1870 provides that after judgment has been entered against the defendant by default, “ it shall be lawful for the plaintiff to enter a rule for the prothonotary to assess the damages, which the prothonotary may do, upon evidence produced to him, or upon the affidavit of the plaintiff, or some other person cognizant of the transaction.” Prior to this act, damages were assessed by a writ of inquiry. Now, the act of 1870 provides the appropriate method for assessing damages against the defendant in default of an appearance. It will be observed that, under the act, the plaintiff must enter a rule and have the prothonotary assess the damages. The initiative in. the assessment of damages must be taken by the plaintiff and the prothonotary should not act until a rule has been entered by the plaintiff. After the rule has been taken, the act authorizes the prothonotary to assess the damages, “ upon evidence produced to him, or upon the affidavit of the plaintiff, or some other person cognizant of the transaction.”

The record in the case shows that there was no assessment of damages whatever by the prothonotary, much less a compliance with the act of 1870 in assessing the damages. The continuance docket shows that a judgment was entered as directed by the plaintiff’s praecipe, but there is no further entry on the docket showing that the damages were assessed. We will assume, as it has been so stated by the trial judge, that a judgment was entered, for a specific sum, but it was only in the judgment docket. The record certified to us does not contain a copy of the judgment index and hence we do not know .what that record contains. There is, however, absolutely nothing in the record to show that the prothonotary assessed the damages or that there was any evidence produced before him upon which he could do so. The figures on the back of the plaintiff’s praecipe directing the entry of judgment are of no consequence whatever. They may show a calculatioh resulting in the sum which was entered on the judgment docket, but they are not the evidence required by the statute on which the prothonotary could act to assess the damages. In fact, the record does not show that the figures on the back of the prmcipe were made by the prothonotary, or that the sum entered on the judgment docket, representing the damages, was ascertained by that calculation. The record is barren of even any pretended compliance with the act of assembly in the assessment of damages in the attachment proceedings against the defendant. The law requires not only the entry of judgment but the assessment of damages in the manner pointed out by the statute.

It is contended, however, by the plaintiff’s counsel that the garnishee could not take advantage of the defects or irregularities in the record on the trial of the cause under the plea of nulla bona. There is some apparent conflict in our cases on this question, but we think they can be reconciled when the facts of the cases are considered. Thornton v. Bonham, 2 Pa. 102, was foreign attachment in which judgment was entered against the defendant for want of an appearance, but the damages were not assessed by writ of inquiry as they were required to be at that time. On the trial of the scire facias the court directed a verdict in favor of the garnishee. In sustaining the judgment entered on the verdict, Mr. Justice Sergeant, after saying that the damages should have been assessed by a writ of inquiry before the scire facias was issued, continued : “ It seems, also, that he (garnishee) may take advantage of the objection (that the damages had not been assessed), on the trial of the issue on the scire facias, for in Pancake v. Harris, 10 S. & R. 109, it was decided that the declaration, being in substance a declaration in assumpsit for goods sold and delivered, and the judgment not for a liquidated sum, the plaintiff could recover nothing from the garnishee, without executing a writ of -inquiry, and he was allowed to take advantage of the objection on the plea of nulla bona.” In Pancake v. Harris, the garnishee pleaded nulla bona, and successfully defended on the ground that prior to the issuing of the scire facias against him the damages had not been ascertained by a writ of inquiry. The doctrine of the above cases is reaffirmed in Melloy v. Burtis, 124 Pa. 161. There, on motion of the garnished, the trial court struck off the judgment entered against the defendants for want of an appearance. The plaintiffs appealed,, and contended that the garnishees were stran-r gers to the judgment and had no standing to question its validity. In declining to sustain the position, Mr. Justice Stebbett, delivering the opinion of the court, said, inter alia (p. 167): “We cannot assent to that proposition. While the garnishee in foreign attachment is not a party to the judgment against defendant in' the writ, it is not quite accurate to say' he is a stranger thereto in the sense intended by plaintiff.The judgment is necessarily the foundation of subsequent proceedings against the garnishee, by which it is sought to take the property or effects of the defendant, attached in his hands, and apply the same to plaintiff’s claim. As a general rule the garnishee is bound to see that the proceedings to that end are not illegal. In a legal point of view his relation to the defendant in a writ of foreign attachment is not always the same. In some cases- he is simply bailee of defendant’s property. In others he' is his debtor, or be may be either bailee or debtor with a counterclaim of his own, consisting of a special lien or a set-off; or, he may be a trustee of money or property under a valid trust created by the defendant in favor of another party. In either case, when he occupies' the position' of bailee or trustee, it is his right, as well as his duty, for his own protection, if nothing more, to insist that no property or effects be taken out of his hands except upon valid process. That duty, if it has not existed before, certainly arises when the garnishee is called upon by scire facias to show cause why plaintiff should not have satisfaction of his judgment out of the estate or effects of the defendant in his hands or possession. The scire'facias is predicated of a valid judgment against the nonresident defendant, and if the garnishee is aware that no such judgment exists, or if he has any other just ground of defense, he has a right to interpose it. If he neglects to do so, and the attached property is taken from'him, he may become personally liable to those whose interests he could and should have protected: 2 Tr. & Haly Prac. sec. 2289 ; Serg. on Att. 113,” etc.

Under these authorities there is no doubt that it has been the practice in this state to permit the garnishee, on the trial óf a scire facias, to attack a defective or irregular judgment against the defendant under the plea of nulla bona. While that plea logically would only allow the garnishee to deny that he had in his hands the estate or effects of the defendant, and thereby defeat any judgment against him for the plaintiff’s claim, yet for the reasons well stated by Mr. Justice Sterrett, quoted above, the garnishee may attack the validity of the judgment against the defendant. There is reason for holding it to be the duty of the garnishee to protect his creditor’s interests by resisting the claim of the plaintiff unless the latter has complied strictly with the statute in procuring the judgment against the defendant. The plaintiff in foreign attachment seeks to enforce a claim against an absent debtor. The absence of the debtor deprives him of an opportunity to appear and defend the action brought against him. So far as he is concerned it is a proceeding in rem to compel his appearance, although he is absent and his appearance is not expected. The only party who has an opportunity to appear and defend is the garnishee who has possession of the defendant’s property. It is, therefore, the garnishee’s duty to see that the property of the defendant is not applied in satisfaction of the plaintiff’s claim unless the latter has established his demand against the defendant in strict compliance with statutory requirements. Assuming such to be the duty of the garnishee, he should be permitted to attack the regularity and legality of the attachment at any step of the proceedings. In Melloy v. Burtis, supra, the garnishee had the judgment vacated, and in the other cases cited the garnishees defeated a recovery against them on the trial by reason of a defect or irregularity in the proceedings. Under the statute the scire facias against the garnishee cannot issue until after the judgment has been entered against the defendant, and hence the former has no knowledge of the proceedings until he is served with the writ. His opportunity, therefore, to attack the proceedings does not arise until after judgment has been obtained against the defendant. Our cases hold, as we have seen, he may do so on the trial of the cause.

It is contended by the counsel for the plaintiff that Poor v. Colburn, 57 Pa. 415, and First National Bank v. Trainer, 209 Pa. 387, support his contention that the failure to assess the damages or irregularity in assessing the damages cannot be taken advantage of by the garnishee after a plea of nulla bona. In both of those cases, however, the reasons for the rule permitting the garnishee to attack the regularity of the proceedings did not exist, and hence the cases cannot be regarded as sustaining the defendant’s position. In Poor v. Colburn, the defendant as well as the garnishee appeared to the attachment, and they both pleaded nulla bona. In First National Bank v. Trainer, Trainer was, individually, the defendant, and as executor was the garnishee and, therefore, although in a different capacity, he was both defendant and garnishee. In both cases it will be observed the defendant was in court and could protect his own interests. If he did not attack the judgment before pleading, there is reason for holding that neither he nor the garnishee under a plea of nulla bona should be permitted to attack either the judgment or the regularity of the proceedings leading up to it. He may waive an irregularity or defect in the attachment proceedings, and he does so, if, without attacking them, he pleads and goes to trial. If on the trial he may not attack the legality or regularity of the proceedings, of course, the garnishee cannot be heard to do so. In both the cases relied upon by the plaintiff, the defendant was in court to protect himself, and having waived the irregularity of the proceedings, the garnishee could not be permitted to attack them on the trial.

In the case in hand, when the testimony was closed and the garnishee requested the court to direct a verdict in his behalf, the evidence in the case disclosed that there had been no assessment of damages in the judgment entered against the defendant, as required by the act of 1870, and as that was a condition precedent to the plaintiff’s right to a verdict and judgment against the garnishee, the latter was entitled to a verdict, and the court having refused to direct a verdict for the garnishee, the latter was subsequently entitled to a judgment non obstante veredicto.

The judgment is affirmed.


text:
    Line’s Estate.

      Wills — Construction—Acts of testator.

    In construing a will the intention of the testator must be sought from the whole instrument, and having thus been ascertained, must be enforced. Canons of interpretation and precedents are simply the means by which the intention of the testator is to be ascertained when his words are uncertain and equivocal. They cannot, however, be permitted to defeat the intention of a testator which is expressed in clear and unequivocal language. In construing such a will, no aids to interpretation are needed and none should be employed. The will speaks for itself.

      Will — Half blood — “Brother”—“Heirs”—Intestate law.

    The heirs of a decedent are those of his kindred who upon his decease take his real property.
    The word “heirs” is often used by a testator in a double sense, meaning the heirs at law in relation to real estate and those persons who would be entitled under the statute of distributions in relation to personal estate.
    The fact that a testator in his will calls a “half-brother” a “brother” cannot overcome the fact that he was in reality a half-brother nor disclose an intention on the part of the testator to give him the share in the testator’s real estate to which a brother of the full blood would be entitled.
    Testator dying possessed of both real and personal property provided by his will as follows: “All the rest, and residue of my estate I direct shall be divided among my heirs under and according to the intestate laws of Pennsylvania.” He appointed his half-brother, who was designated as “my brother,” as one of his executors. By codicil he directed as follows: “In addition to what I have given to my brother (naming the half-brother) as one of my heirs and distributees under the foregoing will, I give, devise and bequeath unto him” certain stock in a .corporation named. Testator left to survive him a half-brother and nephews and nieces, surviving children of a deceased brother and sister of the whole blood. Held, (1) that the word “heirs” as used in the will was not used in its technical sense as heirs at law in relation to real estate, but in the broader and more comprehensive sense of those who inherited personal property as well as real estate; (2) that the use of the word “brother ” instead of half-brother did not of itself disclose an intention to treat a half-brother as a brother of the whole blood; and (3) that the half-brother was not entitled to share in the real estate, but only in the personal property.

      Wills — Codicil—Purpose of codicil.

    The purpose of a codicil is to make a disposition of the testator’s estate other than that made in the will. If any specific change is made," it negatives by implication an intention to make any other in the provisions of the will.
    Argued April 27, 1908.
    Appeal, No. 253, Jan. T., 1907, by Lute A. Line, from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report in Estate of Wm. R. Line, deceased.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to report of Wm. Trickett, Esq., auditor.
    The facts appear by the opinion of the Supreme Court.

      'Errors assigned were in dismissing exceptions to the auditor’s report.

      E. M. Biddle, Jr., for appellant.
    The intention of a testator, expressed in his will and fairly drawn from it, must govern the construction of it; it is the pole star in every will, and ought to be firmly adhered to : Graham v. Graham, 3 Clark, 212; Baker’s App., 115 Pa. 590; Ashburner’s Est., 159 Pa. 515 ; Wright v. Brotherton, 2 Rawle, 133.
    The words used, “ my heirs,” has a well-understood technical meaning, which, in the absence of a clearly expressed contrary intent, must control: Porter’s App., 15 Pa. 201 ; Eby’s App., 50 Pa. 311; Eyre’s App., 106 Pa. 181; Dodge’s App., 106 Pa. 216.
    If real and personal estate be given together to “ heirs,” those entitled to the real estate take the personal estate also : Clarke v. Cordis, 86 Mass. 466 ; Loring v. Thorndike, 87 Mass. 257; Rogers v. Brickhouse, 5 Jones Eq. (N. C.) 301.
    The misdescription of a legatee in a will does not render the legacy void, if it can be ascertained by the will, or by proof ■extrinsic to the will, who was intended by the testator: Smith v. Smith, 1 Paige, 271.

      S. B. Sadler, for appellee.
    The terms of a will ought not to be altered by mere conjecture : Cheesman v. Wilt, 1 Yeates, 411; Doebler’s App., 61 Pa. 9.

      May 11, 1908:
    Where personal property is disposed of, or real and personal property, the use of the word “ heirs ” is equivalent to next of kin, under the intestate laws : Comly’s Est., 136 Pa. 153 ; McKee’s App., 104 Pa. 571; Woods’s App., 18 Pa. 478.
    There is nothing significant in the use of the word “ brother.” It is used to embrace those of the half as well as those of the whole blood. A brother is a male person who has the same father and mother, with another person, or the same father or mother. The term includes half-brothers or those having one common parentage : Root’s Est., 187 Pa. 118 ; Appel v. Byers, 98 Pa. 479.
   Opinion by

Mr. Justice Mestrezat,

William R. Line, the testator, died May 7, 1905, leaving to survive him Lute A. Line, a half-brother, a niece, the sole surviving child of a deceased brother, and two nephews and a niece, the children of a deceased sister. As shown by the report of the auditor, appointed to distribute the funds in the hands of the executor, the testator was at the time of his death the owner of personal property of about the value of $31,000, and of real estate of the value of about $23,000. The will, dated October 4, 1904, is quite brief. After the payment of his debts and funeral expenses and a bequest of $5,000 to his stepdaughter, the testator devises and bequeaths as follows : “ All the rest and residue of my estate I direct shall be divided among my heirs under and according to the intestate laws of Pennsylvania.” He then names his executors as follows : “ I nominate and appoint my brother Lute A. Line and my friend John Hays Esq. to be my executors.” Two weeks after he executed the will he added the following codicil: “ In addition to what I have given to my brother Lute A. Line, as one of my heirs and distributees under the foregoing will, I give, devise and bequeath unto him my $5,000 in the capital stock of the Carlisle Manufacturing Company.” The executors filed an account, and the auditor appointed to distribute the funds in their hands, after the payment of the legacy to the stepdaughter and the $5,000 legacy to Lute A. Line, awarded the proceeds of the real estate per capita to the testator’s nephews and nieces, and the proceeds of the personal property equally among the nephews, nieces and Lute A. Line, the half-brother of the testator. The court confirmed the distribution, and Lute A. Line has taken this appeal. He contends that, - under the provisions of the will, he is entitled to a share of the proceeds of the realty as well as of the proceeds of the personalty.

Under the intestate Act, April 8, 1833, P. L. 315, sec. 4, 2 Purd. (13th ed.) 1998, in default of issue and subject to the estates and interests of the widow, husband, father and mother, the real estate of an intestate who leaves neither brother nor sister of the whole blood, but nephews and nieces, being the children of a deceased brother or sister, descends to and vests in such nephews and nieces per capita. By the same section of the act the personal estate of such intestate is distributable among his brothers and sisters and their issue, as is provided for the descent and division of the real estate of the intestate, but without any distinction of blood. It will, therefore, be observed that under the intestate laws of the commonwealth Lute A. Line was entitled to share equally with the testator’s nieces and nephews in the personal fund, but was not entitled to participate in the distribution of the proceeds of the real estate.

The appellant, by his counsel, contends that by the provisions of the testatoFs will the residuary estate was to be divided among his heirs, which was a class that was to take, the whole residuum of .the estate, and the reference to the intestate laws was merely to indicate how the division among the class was to be made. The learned counsel for the appellant concedes that the will proper gives Lute A. Line no share whatever in the decedent’s estate, either real or personal, if evidence was competent to show that the appellant was a half-brother of the intestate. It is claimed, however, on behalf of the appellant that the codicil shows that he was to share in the proceeds of the realty ; that the words “ in addition ” in the codicil show that Lute A. Line had been given something under the will, which was one-third of the entire residue of the testator’s estate. It is further claimed that . such intention on the part of the testator is shown by the fact that he speaks of Lute A. Line as “ my brother ” in appointing him as one of his executors.

We- think the conclusion of the learned auditor is correct. We agree with the counsel for the appellant that the intention, of the testator must be sought from the whole instrument, and having thus been ascertained, must be enforced. Canons of interpretation and precedents are simply the means by which the intention of the testator is to be ascertained when his words are uncertain and equivocal. They cannot, however, be permitted to defeat the intention of a testator which is expressed in clear and unequivocal language. In construing such a will, no aids to interpretation are needed and none should be em-The will for itself.

By his will, William R. Line directed his estate to be divided “ among my heirs under and according to the intestate laws of Pennsylvania.” As to kindred of the whole and half blood, these laws vest real estate and personal property in different persons. Instead of naming the persons he denominated his “ heirs, ” the testator simply used the shorter expression of directing the division of his estate to be made “ under and according to the intestate laws ” of the state. He did not use the word “ heirs ” in its legal or technical sense, but in the broader and more comprehensive sense of those who inherit personal property as well as real estate. The word “ heirs ” is often used in a double sense, meaning the heirs at law in relation to real estate and those persons who would be entitled under the statute of distributions in relation to personal estate: 15 Am. & Eng. Ency. of Law (2d. ed.), 328. The testator intended that his relatives should share his estate and that the division should be made as though he had died intestate. He could not have used the word “ heirs ” in its technical sense, otherwise he would not have disposed of the greater part of his estate. The heirs of a decedent are those of his kindred who upon his decease take his real property: Dodge’s Appeal, 106 Pa. 216, 220. If, therefore, we limit the word “heirs ” to its legal signification, the testator' only disposed of his real property, which was much less than one-half of his entire estate. He died possessed of personal property of about the value of $31,000, but of real property, of only about $23,000. It is clear, however, as declared in his will, that he intended to dispose of “all the rest and residue of my estate.” We must, therefore, conclude that by the use of the word “ heirs ” the testator intended that it should apply not only to those :who took the real estate, but to those who should participate in the proceeds of the personal property, in other words, it meant heirs and distributees. As a distributee, the half-brother would share the testator’s personalty with the nephews and nieces.- The portion that each relative should receive was to to be determined, as declared in the will, under and according to the intestate laws of Pennsylvania.” As noted above, the intestate act of 1833 divides the real estate of the testator among his nephews and nieces, and his personal estate among his nephews and nieces, and his brother of the half blood.

We do not agree with the appellant’s counsel that the testator in describing Lute A. Line in the will as a “ brother ” instead of a “ half-brother,” disclosed an intention to treat the -appellant as a brother of the whole blood, and thereby give him the one-third of the entire estate. In the distribution of the estate by the auditor, it was necessary that the parties entitled to the fund should be identified and their relation to the testator should be made to appear. It, therefore, became necessary to show7 that Lute A. Line was one of the parties interested in the estate, who he was, and his relationship to the testator. The - simple fact that the testator called the appellant a brother ” instead of a “ half-brother ” in naming him as one of his executors cannot overcome the fact that he was in reality a half-brother, nor disclose an intention on the part of the testator to give him the share to which a brother of the full blood would be entitled. As observed by the vice chancellor in Grieves v. Rawley, 10 Hare, 63, 64, in general when one speaks of his brothers and sisters he does so without reference to the definition of the word by lexicographers, but as a class, standing in the same relationship to one or both of his parents as he himself stands.

Nor do we think that the codicil puts a different interpretation upon the will than the one we have given it. The purpose of a codicil is to make a disposition of the testator’s estate other than that made in the will. If any specific change is made, it negatives by implication an intention to make any other in the provisions of the will. The use of the words “ in addition ” in the codicil clearly shows that the testator thought he had given his brother something in the original will. If, standing alone, the will itself did not show a devise or bequest to Lute A. Line, the codicil clearly shows that something was given him. It not only discloses that fact, but it defines the words “ my- heirs ” used in the will. The codicil says : “ In addition to what I have given to my brother Lute A. Line as one of my heirs and distributees under the foregoing will.” “My heirs” as used in the will, therefore, are construed by the testator to mean “ my heirs and distributees.” Hence it is apparent that “ heirs ” in the will was used in the sense of “heirs and distributees.” Such interpretation of the word “ heirs ” renders the will effective in disposing of the entire estate. This concurs with the presumption of the law, and gives a harmonious reading to the will and the codicil.

The learned counsel for the appellant very properly concedes that parol evidence was not competent to explain the will or show the intention of the testator. The will is sufficiently definite, and speaks for itself. It may be, as claimed by the appellant’s counsel, that the testator intended that his half-brother should receive the share of a brother of the whole blood, but he has not so clearly manifested such intention as to warrant the court in declaring it.

The assignments of error are overruled and the decree of the court below is affirmed.


text:
    Bentz’s Estate.

      Wills — Construction—Intention—Distribution.
    Testator by his will bequeathed one full share of the residue of his estate which was personalty to each of his four sisters, two brothers, and his niece. He then gave one-half of a full share to five of the eight children of a deceased brother, specifically naming the five children. He then declared that the estates given to two of his brothers, one of his sisters and his niece, should be for life only. He directed that after the death of the sister to whom a life estate was given, her share should “revert to her sisters and brothers here mentioned, or to their heirs.” Held, that such share after the death of the sister should be distributed to the sisters and brothers named in the will to the exclusion of the niece, and that all of the children of the deceased brother should share in one full share as representing their deceased father.

      In such a case the three children of the deceased brother are . his “surviving issue” within the meaning of the Act of May 6, 1844, P. L. 564, and there can be no discrimination against them in favor of the other five children.
    Argued April 27, 1908.
    May 11, 1908:
    Appeal, No. 314, Jan. T., 1907, by Cecilia L. Beetem, from decree of C. P. Cumberland Co., Sept. Term, 1906, No. 172, sustaining exceptions to auditor’s report in Estate of Abner W. Bentz, deceased.
    Before Pell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to report of J. M. Rhey, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in sustaining exceptions to auditor’s report.

      Conrad Sambleton, with him John Says and John W. Wetzel, for appellant.

      S. JB. Sadler, for appellee.
   Opinion by

Mr. Justice Mestrezat,

Abner "W. Bentz died testate on December 6, 1883, unmarried and without issue. After directing the payment of his debts and certain specific legacies, he disposed of his estate as follows : “ I will and bequeath to my sisters Elizabeth Bentz, Catherine Bentz, Mrs. Annie M. Parsons and Mary M. Strohm, also my niece, Mrs. Cecilia L. Beetem, and my brothers John Bentz, James Bentz, a full and equal share of all my estate and William Bentz my brother William Bentz Heirs the names that are mentioned one-half of a full share that my other brothers and sisters get equally divided between Mary Bentz, Mrs. Elizabeth Broomall, Joseph Z. Bentz, Samuel Bentz, George Bentz. Brother John Bentz to have the use of his share during his lifetime, and after his death then to be equally divided between all his heirs. Mrs. Mary M. Strohm to have the use of her full share during her lifetime, after her death to revert to her sisters and brothers here mentioned or to their heirs. Mrs. Cecilia L. Beetem to have the use of her full share during her lifetime, and if she dies without children to revert to my brothers and sisters mentioned in my will or to their heirs. James Bentz, Brother James Bentz to have the use of his full share during his lifetime, after his death to revert to his children equally divided.”

"William Bentz, a brother of. the testator, died during .the lifetime of the testator, and the other brothers and sisters inr terested in the fund for distribution, except Mrs. Mary M. Strohm, died after the testator, but prior to April 3, .1906. Mrs. Strohm died on that day without issue. Prior to the death of Mrs. Strohm the estates and interests of the brothers and other sisters of the testator had all been distributed. The fund for distribution in this proceeding is the remainder of the estate given to Mrs. Strohm for life. The court below awarded it equally to the heirs and distributees of the deceased brothers and sisters who were mentioned in the testator’s will. From this decree Mrs. Cecilia L. Beetem, a niece of the testator, has taken this appeal. She contends that she is entitled to an equal share in the fund for distribution with the brothers and sisters of the testator; that only the five children of William Bentz, named in the will, should participate in the distribution and to the extent of only one-half of a full share.

By reference to the will it will be observed that the testator in the first instance bequeaths one full share of the residue of his estate to each of his four sisters, two brothers, and his niece, Cecilia L. Beetem. He then gives one-half of a full share to five of the children of his deceased brother William Bentz, specifically naming the children. He next proceeds to declare that certain of his former bequests shall be for life only. Such are the estates given to his brother John, his brother James, his sister Mrs. Strohm, and his niece, Mrs. Beetem. The language of the will creating a life interest in Mrs. Strohm and disposing of the remainder is as follows: “ Mrs. Mary M. Strohm to have the use of her full sharé during her lifetime, after her death to revert to her sisters and brothers here mentioned, or to their heirs.” The remainder, after Mrs. Strohm’s life interest, is the estate for distribution.

While the will is most inartificially drawn, and was doubtless written by the testator himself, yet we think his intention is clear, and that there is no difficulty in determining what disposition he intended to make of this part of his estate. The property for distribution is personalty. Mrs. Strohm was bequeathed the estate for her life, and then it was disposed of in the following words: “ after her death to revert to her sisters and brothers here mentioned or to their heirs.” This language is plain, and does not need the aid of any rules of interpretation to construe it. Nor does it need transposition to determine the intention of the testator as to this part of his estate. He had “ mentioned ” in his will prior to this bequest the names of his four sisters and of his three brothers. To them the bequest was made. It is true that the testator had-not theretofore given his brother William any part of his estate, but the remainder over, after Mrs. Strohm’s .life estate, was not bequeathed to sisters and brothers to whom the testator had already given an estate or interest, but to the sisters' and brothers “here mentioned.” No general intent is required to determine the signification or meaning of this language. We need not inquire as to the testator’s reasons for not giving his brother William any other part of his estate. That is immaterial, and can have no effect on the construction of this part of the will. Many reasons might be suggested, but they are immaterial. Neither need we inquire as to why the testator primarily gave one-half of a full share of the residue of his estate to the five instead of to the eight children of William. These were matters solely for the consideration of the testator, and his will as to that question is the law of the case. It can have no bearing upon the interpretation of the Strohm bequest. The remainder after Mrs. Strohm’s estate the testator declared should go “ to her sisters and brothers here mentioned or to their heirs.” The sisters and brothers mentioned in the will, whether or not they had been given anything in the will, were the parties to whom the testator bequeathed the remainder after Mrs. Strohm’s life estate. There can be no doubt that such was the intention of the testator, because no other meaning or inference can properly be drawn from the language he used in making the bequest.

It is contended by Mrs. Beetem, the' appellant, that the words in this bequest, “ to revert to her sisters and brothers here mentioned,” refer to the persons who had previously been given in the will a full share and a half share of the estate. This construction of the will would give Mrs. Beetem a full share, and the five children of William Bentz, named in the will, a one-half share of the remainder of the estate given to Mrs. Strohm for life. It is urged by the appellant that to hold otherwise would defeat the clearly expressed intention of the testator; that it would exclude Mrs. Beetem, who is expressly given a full and equal share, and would let in three of the eight children of William Bentz, who are not given in express terms any portion of any share of the estate. But, as we have pointed out, this contention is not supported by the language of the will. It is, on the contrary, antagonistic to the plain and unequivocal language used by the testator in disposing of the remainder after Mrs. Strohm’s life estate. That portion of his estate was not to go to the persons to whom one full share or one-half of a full share had been given, but to the sisters and brothers of Mrs. Strohm “ here mentioned.” In this designation of legatees a niece is not included, nor are five of the eight children of William Bentz named or included. No other .relative than a brother or sister, mentioned in the will, or his or her heirs can participate in this bequest. The plain terms of the bequest permit of no other conclusion. Hence, it is useless to speculate on the general intent of the testator as affecting the disposition of this part of his estate. There is no ambiguity in this bequest, it is plain, and hence must speak for itself.

The word “ heirs ” must be regarded as a word of limitation. The remainder is given to the brothers and sisters, and they take the estate in fee. And this is true as to William Bentz, who died prior to the death of the testator and left issue to survive him. He is “ mentioned ” in the will, and, therefore, becomes a legatee. The Act of May 6, 1844, P. L. 564, 2 Purd. (12th ed.) 2103, prevents any lapse of the bequest by reason of the prior death of the legatee who leaves issue surviving him. The estate was, therefore, given to all the brothers and sisters “ mentioned.” The three children of William Bentz, not named in the will, are his surviving issue,” and there can be no discrimination against them in favor of the other five children. In the language of the act of 1844 the legacy given to William Bentz is good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator.”

Aside from Mrs. Strohm, the brothers and sisters named in the will are Elizabeth Bentz, Catherine Bentz, Mrs. Annie M. Parsons, John Bentz, James Bentz and "William Bentz. These persons or their representatives will, therefore, take the estate for distribution, each of the primary legatees or his representatives being entitled to the undivided one-sixth thereof. This was the distribution made by the learned judge of the court below, whose opinion amply vindicates his conclusion, and, therefore, the decree is affirmed.


author: Per Curiam,

text:
    Spring City Brick Company, Appellant, v. Henry Martin Brick Machine Manufacturing Company.

      Appeals — Jurisdiction—Supreme Court — Superior Court — Amount in controversy — Judgment for payment of money — Actions tried together— Act of May 5,1899, P. L. 248.
    Where an action is brought to recover back money, on ground of breach of warranty, and the defendant in such action brings a separate suit against the plaintiff in the action, on a promissory note, and by agreement the two actions are tried together, and result in a verdict for the defendant for an amount less than fifteen hundred dollars, an appeal' lies to the Superior and not to the Supreme Court, inasmuch as the judgment is a judgment for the payment of money.
    Under the Act of May 5, 1899, P. L. 248, the legislature intended to provide standards of proof for purposes of jurisdiction, in two classes of actions which should include every possible case; first, issues involving title or possession of specific property, real or personal, and, second, issues involving payment of money.
    Argued March 25, 1908.
    Appeal, No. 1, Jan. T., 1908, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1907, No. 132, on verdict for defendant in case of Spring City Brick Company v. Henry Martin Brick Machine Company, Incorporated.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Case remanded to the Superior Court.
    Assumpsit to recover money back.
    Assumpsit on a promissory note.

      May 11, 1908:
    Verdict and judgment for defendant for $663.60. Plaintiff appealed.

      Errors assigned were various instructions.

      Louis M. Childs, with him Charles E. MoAvoy, for appellant.

      Samuel H High and John Faber Miller, for appellee.
   Per Curiam,

The only question before us at present is one of jurisdiction. The facts, stated merely for explanation of the present question and without reference to the merits, appear to be that the parties entered into a contract for the supply by the appellee to the appellant of a brick drying machine. Appellant paid on account from time to time as the work progressed, and finally gave a note for the apparent balance. Dispute having arisen between the parties, appellant brought suit in assumpsit to recover back the money it had paid, on the ground of breach of warranty in regard to the work the machine was guaranteed to do, while appellee brought suit on the appellant’s note. By agreement the two actions were tried together in the appellant’s suit, and resulted in a verdict for the defendant for $663. The appellant has brought its appeal in this court.

The language of the Act of May 5, 1899, P. L. 218, is that in any suit, distribution or other proceeding .... if the plaintiff recovers damages .... the amount of the judgment .... shall be conclusive proof of the amount really in controversy, but if he recovers nothing the amount really in controversy shall be determined by the amount of damages claimed in the statement of claim or declaration.”

The present case is not within the literal words of any provision of the act. The appellant as plaintiff in its own action has recovered nothing, but its action was not tried singly but as a double or composite action, in which the nominal defendant was really an actor or plaintiff, and recovered a verdict of less than $1,500. This will settle the entire controversy, appellant’s claim as well as defendant’s.

Tbe act of 1899 and its conclusive test of the amount actually in controversy were fully considered in Prentice v. Hancock, 204 Pa. 128, and Astwood v. Wanamaker, 209 Pa. 103, and the construction established that the legislature intended to provide . standards of proof, for purposes of jurisdiction, in two classes of actions, which should include every possible case, first, issues involving title or possession of specific property, real or personal, and, second, issues involving the payment of money. The present cáse, though somewhat complicated by being really a double action, is nevertheless a judgment for the payment of money, and, therefore, within the second class.

The appeal is remitted to the Superior Court.