author: Mr. Justice Brown,

text:
    Henry, Appellant, v. Black.

      Equity — Specific performance — Purchase of equitable title — Countervailing equities.

    The purchaser of an equitable title takes it subject to all the countervailing equities to- which it was subject in the hands of the person from whom he purchased it.
    ■ Beal estate — Option—Contract—Variance from, option.

    An acceptance of an option to be good must be such as to conclude an • agreement or contract between the parties. To do this it must in every respect meet and' correspond with the offer, neither falling within nor going beyond the terms proposed but exactly meeting them at all points and closing them just as they stand.
    An offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept, or the other may withdraw his offer and either rejection or withdrawal leaves the matter as if no offer had ever been made. A proposal to accept or an acceptance of an option, upon terms varying from those offered, is a rejection of the offer and puts an end to the negotiation, unless the party who made the original offer renews it or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance.
    Where a person makes an offer to purchase on terms different from those set forth in an option, but according to an agreement to be subsequently made, which is not made, a decree of specific performance will not be made, although the intended buyer paid the required hand money and subsequently agreed to purchase under the terms of the option.

      Equity — Specific performance — Vendor and vendee — Principal and agent — ■ Fraud — Option—Effect of failure to accept option in its entirety.

    On a bill in equity for specific performance it appeared that M employed C to endeavor to get an option from B for property owned by her. C obtained an option in writing for himself, his nominee or assigns, for thirty days, with the distinct oral understanding that the option was procured for M. M was informed that the option had been procured, said he believed the price was too high but would consider it. C was treasurer of a corporation engaged in the business of buying and selling real estate, and employed by the corporation to transact business exclusively for it. Subsequently C agreed to sell the property to H giving a receipt in the name of the corporation for cash paid for hand money for the property sold “as per agreement made this day.” An agreement between B and H, different in terms from the option, was prepared and signed by H, but B refused to sign it. Three days before the expiration of the option H offered to accept the option in its entirety and tendered the purchase money. On the same day M, with full knowledge of the dealings with H, gave notice of his acceptance of the option and later the property was conveyed to him. H then filed a bill for specific preformance. Held, (1) that C was the agent of M in procuring the option; (2) that M’s equities were countervailing and superior to any that could be asserted by H; (3) that the failure of H to accept the option in the first instance in its entirety was a rejection of it and that B was not bound by the subsequent offer to accept it; (4) that a decree dismissing the bill should be affirmed.
    Argued Nov. 3, 1905.
    Appeal, No. 198, Oct. T., 1905, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., July T., 1903, No. 585, dismissing bill in equity in case of D. F. Henry and Annie E. Henry, his wife, in right of Annie E. Henry, v. Sarah Black, The Union Realty Company, Robert J. Coylé, •Jr., Andrew W. Mellon and William Witherow.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance. Before Shafer, J.
    Hearing on bill, answer and proofs.
    In addition to tbe fact as stated in tbe opinion of the Supreme Court the court below found that on June 5, 1903, two days before the expiration of the option, the appellant offered to take the property upon the terms set forth in the option, and tendered the purchase money and a bond and mortgage as provided in the option.

      Error assigned was decree dismissing the bill.

      William A. Stone, with him Stephen Stone, for appellants.

      James H. Beal, of Reed, Smith, Shaw Beal, with him S. S. Mehard, John O. Slaok, Henry A. Davis, Ralph Longeneoker and Soandrett £ Barnett, for appellees.
    January 2, 1906:
   Opinion by

Mr. Justice Brown,

When this case was before us a year ago it was on appeal from the decree of the court below sustaining the demurrer of the defendants. In reversing that decree our late Brother Dean set forth the material averments of the bill, admitted by the demurrer to be true. They were, in his words (210 Pa. 245) : “ That Sarah L. Black, one of the defendants, on January 7 and for years prior thereto was the owner in fee simple of a lot of ground on the corner of Smithfield street and Virgin al^r in the city of Pittsburg, known as the Hotel Duquesne property ; that plaintiffs owned the Hotel Henry property adjoining the Hotel Duquesne; the Union Realty Company is engaged in the business of buying and selling on commission the property of owners; on May 7, 1903, Sarah L. Black gave to R. J. Coyle, stockholder and treasurer of the Union Realty Company, and to his nominee and assigns an option for thirt} days on the Hotel Duquesne property at the price of $800,000 payable $25,000 cash, the balance, $775,000, -to be secured by bond and mortgage for ten years bearing interest at four per cent payable semiannually ; Sarah L. Black agreed to pay the Union Realty Company $10,000 if sale was made. Coyle and one John K. Ewing, a director of the company, then sold to Annie E. Henry the Hotel Duquesne property on June 1, following, within thirty days, at the exact price specified in the option of Mrs. Black to Coyle, but substituting as the vendor the Union Realty Company. This is a copy of the writing delivered to Mrs. Henry:

“ ‘ June 1st. 1903. Received from Mrs. Annie E. Henry five thousand dollars ($5,000) hand money on account of sale of Hotel Duquesne property as per agreement made this day.
(Signed) ‘ Union Realty Company,
‘ $5,000 per J. K. Ewing.’
“ The negotiations for the sale were made and carried on by and through Ewing and Cóyle ; the $5,000 named in the receipt or contract was paid them; the plaintiffs, on June 5, 1903, within five days, tendered to Sarah L. Black $25,000 in cash and a purchase money mortgage payable with interest as stipulated in her option, and demanded a deed; she refused to accept the money or deliver a deed; in five days before filing this bill and ten days after plaintiffs tendered to her the cash, mortgage and bonds, Mrs. Black executed and delivered to Coyle a deed for the property, received from him the $25,000 cash with the mortgage and bond in the sum of $775,000; the same day Coyle executed to A. W. Mellon his deed for the property for the consideration agreed to be paid by Mrs. Henry to the Union Realty Company. Mellon took the deed with the full knowledge of the previous negotiations and transactions between Coyle and Mrs. Black, and between Coyle, Ewing, the Union Realty Company and Mrs. Henry. The Union Realty Company received from Sarah L. Black $10,000 commissions on the first sale of the property to Mrs. Henry ; either the company or Coyle for the company received an additional commission from Mellon for the sale of the property to him.”

Having assumed, as we were bound to assume by the demurrer, that the foregoing averments were true, we held the designation of the property in the receipt as the Hotel Duquesne to be a sufficient identification of it to make it the subject of a decree for specific performance; that Coyle was a trustee of the equitable title to the property in favor of the realty company, and that its rights had passed to Mrs. Henry by the receipt of June 1, 1903: that the conveyance had been made to Mellon with full notice of all the transactions and all the conduct of the parties up to and including the sale to the plaintiff; and that, if he took his deed from Coyle with notice of Coyle’s mala, fides, he was but a trustee of the title for the first purchaser, Mrs. Henry. The demurrer was overruled, the bill reinstated and the defendants were directed to answer over.

On the hearing before the court below a very different situation was presented from that appearing on the face of the bill, and, in view of findings that could not have been avoided, no chancellor would now take the property from Mellon and decree it to the appellant. The bad faith and misconduct of Coyle are most reprehensible and cannot be too strongly condemned; but the one who can mbst justly complain of them is A. W. Mellon. More than six months prior to May 29, 1903, when D. F. Henry, the husband of the appellant, was first approached about the purchase of the Hotel Duques ne, A. W. Mellon had employed Coyle to find out for him whether Mrs. Black would sell the property, and, if so, to endeavor to get an option upon it. At that time Coyle did not even know.Mrs. Black, but, having ascertained her residence, went to see her and endeavored to persuade her to sell the property, not, however, mentioning the Mellons at first. He made repeated visits at various times, and she declined to sell or to •give an option. Finally he told her he was acting for the Mellons, who were more or less known to her, she having been a depositor in their bank. Having many times refused to sell the property or to give an option on it to Coyle, alleging as a reason that she would not know what to do with the money if she had it, she finally, as she says, in order to get rid of his importunities, said she would give him an option for $800,000. Coyle thereupon said he would take it, and she executed the following, which is printed as exhibit “ A ” of the plaintiff’s amended bill:

“Pittsburg, May 7th, 1903.'
■ “I, Sarah L. Black, of the Borough of Swiss vale, County of Allegheny and State of Pennsylvania, in consideration of one ($1) dollar, the receipt of which is hereby acknowledged, do give to Robert J. Coyle, Jr., his nominee or assigns, the option for thirty (80) days from this date to purchase in fee simple those certain lots or pieces of land in the Third ward of the City of Pittsburg, known as Nos. 520 and 522 Smithfield street, having a frontage of 44 feet on Smithfield street by 60 feet in depth and lot contiguous to and adjoining on rear fronting 60 feet on Virgin Alley and extending back 84 feet to line of property of A. W. Mellon; said property being known as ‘ Hotel Duquesne,’ for the sum of eight hundred thousand ($800,000) dollars, payable as follows: twenty-five thousand ($25,000) dollars cash and the balance of seven hundred and seventy-five thousand ($775,000) dollars to be secured by bond and mortgage for ten (10) years, bearing interest at four (40) per cent payable semiannually.
“ Witness my hand and seal this seventh day of May, A. d. 1903.
“ Sarah L. Black. (Seal)
“ Attest:
“E. M. Blatt.”

At the time Mrs. Black gave the option she had no knowledge of the Union Realty Company and was dealing entirely with Mr. Coyle, so far as she knew. He told her that his purpose in getting it was to make a sale to the Mellons, which she believed, and the distinct finding of the court is that Coyle was, in fact, the agent of the Mellons to procure it. Mrs. Black testified; “ He promised me faithfully that nobody else would get it but the Mellons, if that’s plain. He promised me faithfully a dozen of times that nobody would get it but the Mellons, for I wouldn’t sell it to anybody else. I thought the Mellons ought to have it because they had the most of the square and the old gentleman used to come and see that building going up and he stood there watching it, seeing that they are doing it right, and he would say ‘ They are making a good job for you,’ and I would have been afraid to build almost if it hadn’t been for him. . . . This here, Mr. Coyle, he was determined he would have it and he said it was for the Mellons, and I thought I might as well give it to the Mellons, as I had no child to leave it to, and no person to leave it to, and I just thought Mellons had the most right to it.” In this she is confirmed by her nephew, R. G, Jackson, who was present at the interview between her and Coyle. The latter himself testified: “ Mrs. Black asked me- if the option was being taken for the Mellons and I told her again that it was, and she executed the option at that time.” When Coyle notified A. W. Mellon that the option had been procured the latter said, according to his testimony: “ I said to him that the price was too high but that, perhaps, we would have to pay that price for it, but just to keep it and we would make up our minds about it. The option had thirty days to run and my idea was that there was no urgency about it and that I could close it out toward the end of the option term.” This Mellon did on June 5, 1903 — three days before the option had expired — by giving notice to Coyle and Mrs. Black that the option was accepted. Mellon further testified that when he learned that Coyle had, in bad faith, offered the property to Henry, he said to Coyle that .he and Ewing “ hadn’t any right to do anything of the kind, that the option had been taken for us and belonged to us and it was in bad faith to us to offer the property for negotiation with others.” To this Coyle made reply that he did not think there was anything in it, or something to that effect. From the foregoing undisputed facts it is manifest, as found by the court below, that Coyle was the agent of the Mellons in procuring the option, and A. W. Mellon is involved in none of the mala fides of the case. On the contrary, the equities of it are all with him.

What Mrs. Henry purchased from the realty company was an imperfect title upon its face — a mere equity at the best in the property, for the legal title still remained in Mrs. Black. This being the case, she is bound by the rule announced in Chew v. Barnet, 11 S. & R. 389, that the purchaser of an equitable title takes it subject to all the countervailing equities to which it was subject in the hands of the person from whom he purchased it.y'Of this rule it is said by Gibson, J., in that case : “ Now, every equitable title is incomplete on its face ; it is, in truth, nothing more than a title to go into chancery, to have the legal estate conveyed; and, therefore, every purchaser of a mere equity takes it subject to every clog that may lie on it, whether he has had notice of it or not. But the purchaser of a legal title takes it discharged of every trust or equity which does not appear on the face of the conveyance, and of which he has not had notice, either actual or constructive.” The equities of Mellon were countervailing and superior to any that can be asserted by the appellants, in view of the facts just referrred to.

But, eliminating Mellon from the case, and with nothing before us but the option given by Mrs. Black on May 9, and the receipt of the realty company of June 1, is there a contract that can be specifically enforced ? The option was not unconditionally accepted, but, as appears from the receipt, the appellant paid $5,000 hand money on account of the salo of the property, not according to the option, but as “ per agreement this day made.” An acceptance of an option, to .be good, must be such as amounts to an agreement or contract between the parties. Such an acceptance can be only an unconditional one. The rule upon this subject is thus stated in Potts v. Whitehead, 28 N. J. Eq. 512: “An acceptance, to be good, must, of course, be such as to conclude an agreement or contract between the parties. And to do this, it must in every respect meet and correspond with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand: Huddleston v. Briscoe, 11 Ves. 583; Carr v. Duval, 14 Pet. 77; McKibbin v. Brown, 1 McCarter, 13 ; s. c. Court of Appeals, 2 McCarter, 498; Honeyman v. Marryatt, 6 H. L. C. 112; Routledge v. Grant, 4 Bing. 653; Kennedy v. Lee, 3 Meriv. 4.41; Hutchinson v. Bowker, 5 M. & W. 535; Eliason v. Henshaw, 4 Wheat. 225 ; 1 Parsons on Cont. 476, 477; Story qn Sales, sec. 136, and cases cited n. 1.” In Minneapolis & St. Louis Railway Company v. Columbus Rolling-Mill Company, 119 U. S. 149, the same doctrine is announced : “ As no contract is complete without the mutual assent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept, or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer had ever been made. A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assents to the modification suggested. The other party, having once rejected the offer, cannot after-wards revive it by tendering an acceptance.”

The agreement of Mrs. Henry was not, then, to purchase on the terms set forth in the option, but according to an agreement to be made that day, which, as a matter of fact, was not made. Not satisfied with the terms of the option, which provided for the payment of the balance of the purchase money, 1775,000, by securing it by a bond and mortgage for ten years, the appellant had her attorney prepare and she signed an agreement in which there was a stipulation that the purchase money mortgage was to be accompanied by what is commonly known as a common bond, the said mortgage and bond, however, “to be limited to the premises ” described. This was a material variance from the option, which, on being submitted to Mrs. Black, she refused to sign. Though the reason of her refusal may have been that the Mellons were not to get the property, the fact remains that the agreement was not signed by her; and as Mrs. Henry’s insistence that the terms of the option should be changed was a legal rejection of it, Mrs. Black was not to be further bound by it, unless it was formally renewed. The case, as presented, is one in which the receipt does not contain the terms of sale, which were to appear in an agreement subsequently to be executed by the parties, and, as it never was executed, there were no terms to be enforced. It follows as a matter of course that no decree for specific performance could have been made.

The decree of the court below is affirmed and this appeal dismissed, at the cost of appellants.


source: Caselaw Access Project

author: Pek Cubiam,

license: Public Domain

text:
    Dundas’ Estate.

      Decedents’ estates — Evidence—Evidence as to birth of claimant.

    A claim of right not asserted as a legal demand until after the death of the party affected by it, although upon the claimant’s own showing it originated and matured many years before, comes before the orphans’ court discredited on its face, and with every presumption against it; and this applies with increased force where the claim, repudiated in the lifetime of a decedent, not only involved a large portion of the estate, but, if sustained, blasts the decedent’s good name, and convicts of the commission of crime. A recovery iu such a case can only be had upon evidence clear and convincing; the claim must be established by the testimony, free from inconsistency or contradiction, of witnesses whose veracity is unimpeachable; and the circumstances must be such as to be inconsistent with any other explanation, and leave no rational doubt of the justice of the claim. To doubt as to such a claim, must, necessarily, be to deny. This principle applies to a claim to share as a distributee in a decedent’s estate, where the claimant asserts that he was the illegitimate son of decedent, although born during the period of the decedent’s lawful wedlock, and such claim was repudiated in the lifetime of the decedent.
    Argued May 23, 1905.
    Reargued Jan. 2, 1906.
    Appeal, No. 41, Jan. T., 1905, by Arthur Fitzroy Somerset Dundas, from decree of O. C. Phila. Co., April T., 1893, No. 188, dismissing petition for review in Estate of Anna Maria Wurts-Dundas, deceased.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for review.
    Ashman, J., filed the following opinion:
    Anna Maria Wurts-Dundas died January 10, 1897, at Nice, France. Her husband, Major William Wurts-Dundas, died in December of the same year. Two children were born of the marriage, William, who died in 1893, and Ralph, who still survives. Mrs. Dundas left a memorandum in the nature of a will, bequeathing all that she possessed to her husband for life. By agreement between the father and the surviving son, this paper was never offered for probate, and the decedent was treated as having died intestate. An account of the administrator of her estate was filed and the balance then in hand was awarded and paid to the son. After the settlement of the account and distribution thereunder, and for the first time, a claim was made against the estate on behalf of an alleged son of the decedent, who is now of full age and has assigned his claim. The details of this claim, which Balzac would probably have rejected as too extravagant to serve as the groundwork for a French novel, are embodied in a mass of testimony, the essential matters of which may be compressed within a comparatively narrow space. With the exception of tours of the continent and occasional visits to the United States, Major Dundas and his wife spent most of their married life at Paris, where they occupied handsome apartments and mingled in the social circles of the capital. Among their more intimate friends was a Captain Farquhar. He came of a noble family, but his course of life had been the source of great distress to his family. In and before the year 1880 he was a frequent visitor at the house of Major and Mrs. Dundas; partook of their hospitality and was admitted to their confidence. If thé petitioner’s narrative may be believed, the captain grossly abused this friendship. Late in May, 1880,. Major Dundas left France upon a short trip to this country, and almost immediately after his departure Mrs. Dundas, it is said, wrote to Henry Petre, a mutual friend of her husband and of Captain Farquhar, requesting an interview, which he granted. She then, as further alleg'ed, informed him that she had given birth to a child about the middle of June; that she had been attended by an American doctor; and that Captain Farquhar was the boy’s father. She further stated that she had placed the infant in care of two nurses, Mary Redmond and daughter, and that these women were Roman Catholics and insisted upon its baptism. Petre, at her urgent insistance, consented to act as godfather, and at the time fixed accompanied the mother to the church, where they were joined by the father, two nurses and the child. It had been agreed that the parents should take the names respectively of Arthur F. and Anna Somerset and the child that of Arthur Somerset. The church record, Petre declared, was signed by himself as godfather and by the father and mother, although he was unable to say that he saw them actually write. Thereafter from some source (Petre said, from the decedent, because Captain Farquhar had no money) periodical payments for the care of the child, were made to Mary Redmond. In 1883, Petre drafted for the decedent a letter to Messrs. Drummond, bankers, proposing to open an account with them for 1,100 francs which was to be paid out in monthly installments to the nurse. This letter was signed Mary Somerset, although the assumed name of the writer was Anna Somerset.. Most of these payments were made through Petre. They ceased in 1890, and on July 28, of that year, Petre wrote to the bankers requesting them •to pay over to Mrs. Redmond the balance upon his guaranty to save them harmless. This he asserted was after the receipt of a letter bj him from the decedent, dated at Paris, in which she declared she could make no further remittances, and desired him to say to the nurse that she was dead. Instead of complying with this request, Petre subsequently directed the lawyer who represented the nurse, to apply to Mrs. Dundas, Place Vendóme, Paris, for information as to the mother of the child. The nurse testified that she had applied in various directions, among others to the office of the British Embassy in Paris, for redress for herself and the Child. She finally crossed to England and appeared before a magistrate in the Bow Street police court, London. After repeating her story to the judge, she was approached, as she alleged, but which he denied, by a lawyer whose practice lay in the criminal courts, and who proposed to act as counsel for the child. The attorney, acting upon information obtained from her and from Mr. Petre, wrote to Mrs. Dundas. The letter came into the possession of Major Dundas, who learned through the writer, Wallis, the story of the child’s parentage. (The lawyer suggested that for a money consideration the child would- be adopted by Mrs. Redmond and all danger of a scandal averted.) At this time Mrs. Dundas was so critically ill that a knowledge of the alleged facts would have in all probability proved fatal. Major Dundas was confronted by a fearful emergency. He did not dare to leave his wife in her then enfeebled health, he was powerless to probe the charges, and in August, 1890, he paid ¿6325 to the lawyer, who retained thereout ¿6125 for his services and gave the balance to Mrs. Redmond. In September, 1890, he made a fresh demand upon Major Dundas, in the sum of ¿6150, on the ground that his services in effecting a settlement had been of special value to the major. To this demand Major Dundas returned a peremptory refusal. The women afterwards quarreled over the division of the money, and the child finally came into the custody of the younger nurse.
    With this episode all proceedings during the lives of the decedent and her husband ended. Nearly ten years later and after the principals had been removed by death, the claim was presented in its present shape. In a case of this character where the opposing elements are mainly money on one side and family honor on the other, it is almost a trite thing to say that the proof on the part of the claimant should be of a moral order so high that it should not admit of a well-grounded doubt of its accuracy. Especially is this true where the claimant has deferred his attack until after the death of the party whose wealth he would share and whose character he seeks to defame.
    ■ To begin with, the incidents attending the birth and the after-care of the child, as they are narrated by the witnesses for the petitioner, are simply inexplicable. The decedent and her husband occupied the same apartments in Paris, and were well known to and welcomed by the American colony in that city. The husband, in May, 1880, left upon a brief trip to the United States, and a week or two after his departure his wife informed Mr. Petre, as he alleged, that a child had just been born to her, whose father was a stranger, and that the nurse in whose charge it had been placed insisted upon its baptism according to the rites of the Roman Catholic Church, the mother herself being a Protestant. She wound up the announcement by requesting Mr. Petre to act as godfather at the ceremony. The church record of the baptism was produced which bore the alleged signatures of the parents, under the name of Somerset. The first name of the mother had been written on an erasure, and it was claimed to represent “ Anna.” Two handwriting experts, however, testified that the name was absolutely indistinguishable, and they declared that the rest of the-signature was evidently written by the same hand which had signed as Arthur Somerset. What adds to the strangeness of the proceeding, as viewed from the standpoint of the decedent, is the circumstance that the ceremony was solemnized with her consent in a church edifice, which was open at all hours to worshipers and visitors, and in which at any moment she might have been recognized.
    But another and apparently impassable bar to the acceptance of the narrative is the personal description of the decedent, which was furnished by the claimant’s witnesses. The decedent was quite petite, and the slenderness and grace of her figure were everywhere remarked. Indeed, she prided herself upon these characteristics, and was careful to dress in a manner to show them to advantage. To use the words of Mr. Petre, “ She was short, very elegant and very small waisted.” The nurse with whom the child had boon left, in the descriptions which she gave of the mother, pictured her as the reverse of this portrait. In her testimony before the commissioner she described the child’s mother as a good-sized lady, with “ yellow hair ” (the decedent’s hair being a dark brown), tall, above the average height of a woman. To the lady who founded the Mission Home and Orphanage Institution at Paris she said the mother was an Englishwoman; that “ she was big, stout and thick-set, and always came into the room with a bounce.” She complained that the parents had discontinued the stipulated allowance for the support of the child, and when she was told by the manager that the sum which was then due would be paid her by the institution provided she would surrender the child to its custody, she replied that she would do better than that, and that she would bring up the boy to be a curse to his parents.
    If the testimony of Mr. Petre were excluded, a court might well hesitate, upon the remaining evidence, to sustain a verdict in favor of the claim. He alone of all the witnesses has brought the decedent face to face with the claimant; he was the confidant to whom the decedent made an unreserved confession of her double folly and crime, and at the same time implored his aid, and he was an eyewitness and actor at the child’s baptism. Unfortunately for the purposes of this investigation, the supreme test of his truthfulness or falsehood — the letters of the decedent, whose production would have ended the case — are wanting. The vital fact that such letters were ever received, or that, if received, they came from no other than the decedent, rests on his unsupported word. His testimony aS to the decedent’s presence at the christening stands on no better basis. It is not corroborated b} the record which he declared she signed, in which the assumed first name of the child’s mother was undecipherable, and in which her assumed family name was apparently in the handwriting of Arthur Somerset. Our business is with facts, and we are not bound to search into motives. One or two things, however, appear upon the surface. Mr. Petre was a man of the world, cynical and indifferent in his mode of thought, but solicitous, it may fairly be presumed, for the reputation of certain noble English families with which he was more or less closely allied. The ties between him and the decedent were purely conventional, and had indeed been severed when by his own admission, the decedent had deliberately cut him in public. He knew before he gave his testimony, that she and her husband were dead. It is at least possible that he determined to interpose the decedent who had thus passed out of his life, as a shield to protect the honor of an English lady, who is more or less obscurely hinted at in the evidence as figuring in the history of Captain Farquhar. The captain’s brother, for instance, stated that he had examined the contents of a box containing letters addressed to his brother, which after the death of the latter had been sent the witness by Mr. Petre, and that no letter from Mrs. Dundas was among them, but letters were there from an English lady of title which showed that the writer was on terms of close friendship with the captain. If this was Petre’s design, his task was comparatively easy. He had only to substitute the name of this decedent for the actual person who assumed the name of Somerset, and the whole superstructure of his story was already built. A woman under that name undoubtedly placed a child in the home of the Redmonds, and attended at its baptism ; either she or Captain Farquhar furnished the moneys for its maintenance, and she wrote, if they were written at all, the self-incriminating letters. If the testimony of a number of eyewitnesses is to be believed, this person differed in essential particulars, which could not have been mistaken or overlooked, from the decedent. Captain Farquhar, who could have solved the riddle, is dead, and Petre alone swears to the identity of the decedent. We have read the evidence with care, and are bound to say that, in our judgment, it does not sustain him.
    It would serve no useful end to attempt an elaborate analysis of testimony which covers 1,000 pages of print, and which contains much that is necessarily irrelevant in connection with the acts of parties which took place many years ago. Discrepancies and contradictions are apparent in the proofs submitted on both sides of the controversy, and are the natural consequence of a lapse of memory on the part of the narrators; but they have little bearing on the final result. The same may be said of other incidents which, standing by themselves, would seem difficult of explanation. It may be freely admitted, for instance, that Mrs. Dundas was flattered by the attentions of Captain Farquliar, and tliat she even loaned him some of her jewels upon which to borrow money for his needs. It was not, however, so remarkable as to be incredible; the captain was a trusted friend of her husband and she knew him to be in financial straits. So the payment by Major Dundas, under the settlement forced upon him by the claimant’s attorney, loses whatever sinister meaning might otherwise have attached to it, in view of the absolute inability of the husband to probe at the time into the facts. That he soon after learned enough to assure him of his wife’s innocence, is very manifest from his reply to the lawyer’s demand for additional money. His language in that letter was: “ Had I possessed a month ago the data now in my hands and for the collection of which some time was necessary, I would not have paid one penny. If the parties apply to me in France I am determined to make it a matter of summary police correctionelle.” The nurse, embittered because she felt that she had been defrauded by the child’s parents, was a willing witness for the claimant. She made variant statements as to the number of visits made by the mother to the witness’ house, and she recognized a photograph likeness of the decedent, although she said the mother wore a veil at those visits and at the child’s baptism. She admitted that she had never heard the name Dundas until it was communicated to her by the lawyer Wallis. Mr. Petre’s declaration that the money for the child’s support must have come from the decedent for the reason that Farquliar was destitute, was offset by his after declaration that he received a letter from the captain, who was in his command in Egypt, stating that the writer had a deposit of ¿£600 in the bank at Cairo, which was subject to Petre’s order. It is unnecessary, however, to go into further detail.
    The petition is dismissed.
    Concurring opinion by Penrose, J.
    The petition in this case seeks to set aside a decree confirming the adjudication of the account of the administrator, making distribution of the decedent’s estate between her husband and son — such distribution having been confirmed more than a year after her death, and the husband having died before the presentation of the petition (see Piper’s Estate, 208 Pa. 636).

      It alleges that the son to whom distribution was made was not the only child-of the decedent, and that the petitioner was also her child, born in June, 1880, and as such entitled under the intestate laws to one-third of her estate. This averment of the petition is denied by the answer, in the most positive terms.
    The claim of the petitioner, it is now stated, has been assigned, and any recovery will inure to the benefit of the assignee. The consideration of the assignment does not appear, but the amount covered by the petitioner’s claim is one-third of the estate embraced in the administrator’s account, or $38,173.39, with interest.
    The petitioner, who was examined as a witness on -his own behalf, admitted on cross-examination that he had, before making the assignment, endeavored to raise money on his claim by fabricating evidence in its support, and the case is thus brought within the principle, illustrated by McHugh v. McHugh, 186 Pa. 197; Moriarty v. Railway Company, L. R. 5 Q. B. Cases, 314, etc., that the fabrication of evidence, while it does riot raise a presumption of law, justifies a finding against the guilty party, as furnishing “ strong evidence that he knew .perfectly well that his cause was an unjust one.”
    It is not necessary, however, to decide the case on this ground, though in considering the testimony of the petitioner’s witnesses it is not to be lost sight of.
    In 1880, and for a number of years before and after that time, the decedent and her husband resided in Paris. They had two children, of whom the youngest was then about seven years of age. In May, or the latter part of April, of the year mentioned, .the husband was called to Philadelphia-where he remained until some time in the following fall, leaving, in the meantime, his wife, the decedent, in charge of their house and household and of their little son.
    The petitioner alleges that the wife, at the time of -the husband’s departure, was far advanced in pregnancy and on the eve of confinement, as the result of an intimacy with an officer of the British army; and that taking advantage of the opportunity afforded by the husband’s visit to America, she absented herself from their residence and .went to a house in another part of Paris, where, for a period of six weeks she remained with this officer, as husband and wife, and where, during that time, viz.: June 18,1880, she gave birth to an illegitimate child,, whom, after supporting for a number of years, she finally deserted ; the child so born being the present petitioner.
    The husband, as already stated, returned to his wife and family in the fall of 1880, and from that time the marital relation continued without interruption until the wife’s death, in January, 1897. What became of their little son during the six weeks that the wife is thus alleged to have abandoned him, is not stated or explained.
    The testimony in the case shows, without contradiction, that the husband and wife lived together, not only in the same house but in the same apartment; and why, therefore, there should have been any reason for concealing from the husband (assuming that it was possible to have kept him in ignorance of the wife’s pregnancy) and from the world the birth of a child, it is difficult to imagine. Pater est quern nuptise demonstrant; and the presumption that the husband, under the circumstances of this case, who was not simply infra quatuor maria but infra quatuor moenia, was the father of any child who might be born by the wife, was a conclusive one — so conclusive, indeed, that even the sworn testimony of the wife would have been insufficient to overcome it: Dennison v. Page, 29 Pa. 420.
    Conceding, however, the possibility of a motive for concealment, and the fact that the, husband, who was the undoubted father of her two acknowledged children, was not, and must have known that he was not, the father of a child to which she might give birth in June, 1880, the course alleged to have been taken to effect concealment was still more extraordinary than even the desire to conceal at all.
    The decedent was an American woman, of prominent social position, and, as it would seem, well known as such to the Parisian public, generally, and especially to other Americans residing in that city; yet, as alleged by the petitioner, one of the first steps taken, in the plan to conceal her disgrace, was to call in, during the period of her confinement and while she was living as the wife of an officer in the British army, an American physician. It need scarcely be added that this physician was one who has since died.

      The next of these extraordinary steps was the public baptism of this illegitimate child in a Catholic church — neither of the adulterous parents being Catholic, but both of them appearing at the ceremony and avowing their relationship.
    But still more extraordinary is the assertion that' in order to procure the services, as godfather, of an intimate friend of the father, the mother unbosomed to him — -he being a'Catholic, and told him, what was wholly unnecessary that he should know, of the birth of the child, its paternity, the employment of the American doctor, etc. This gentleman, who appears to be the deus ex machina of the petitioner’s drama,- declares that he was greatly astonished at the announcément as he had'not the least suspicion of such a condition of affairs, though he had seen his informant only a short time before they happened; and he gives as a reason for this remarkable confidence that the two Irishwomen, mother and daughter, who had agreed, in - consideration of the payment of a large monthly sum, to take care of the child, were devout Catholics, and might give up their bargain unless there should be a baptism thus solemnized. Of these two women, it may be added, the daughter, who is still living, admits that at a subsequent period, she was sent to prison upon a charge by the mother that she was appropriating to her own use the money thus paid — the charge, ás the daughter vehemently asserts, having been false and the mother a perjurer.
    The gentleman who thus became godfather goes on to state that the decedent afterwards deposited with certain English bankers funds for the support of the child — the deposit having been effected through the agency of a letter, signed by her, which he prepared for the purpose. A very remarkable feature of this letter, which was produced, is the fact that the depositor, forgetting that her name, as well as her assumed name, was “ Anna,” describes herself in the letter, and so' signs it, as “ Mary ”; while the handwriting of the signature not ' only bears no resemblance, discoverable to the ordinary eyé, to that of the decedent, but is declared by some of- the experts who were examined to be identical with that of the body of the instrument, which was written by the godfather, himself.
    At a still later date, when, as- he says, the mother’s love for the child, which had been-'intense, had so completely ended that she no longer made remittances for its support, the godfather’s influence with the bankers — who liad never seen the depositor-- — was such that he was permitted to draw the balance standing to the credit of “ Mary Somerset,” without communication with her, and send it to the Irish caretakers. About the same time, he also testifies, the mother positively refused to do anything further for the child’s support, and declared that application must be made to the relatives of the father, which, of course, necessarily involved the making public of the facts which she had, according to the witness, been always, theretofore, so solicitous to conceal.
    With regard to the testimony of this witness, so far as it is based upon admissions alleged to have been made to him by the decedent, what was said by Judge Coulter, in Harbold’s Executors v. Kuntz, 16 Pa. 210, may well be applied: “ Admissions — the easiest mode of testimony to lead to error, the kind of evidence most apt to be misapprehended and mistaken, and in relation to which a facile conscience may stretch itself like India rubber.” That his conscience was “facile” is demonstrated by his own letters, in one of which, apparently in answer to an effort to induce him as godfather to do something for the support of the child, he says, “ Any part that I have had in this business began and ended in the religious ceremony of baptism; ” and in another he asserted that he “ acted as godfather at the earnest request of the father,” and not, as he now states, at the instance of the mother, to aid her in the trouble which she confided to him.
    He speaks of letters received by him from the decedent in connection with these transactions, but explains his inability to produce any of them by the assertion that after the death, in 1883, of his friend, the British officer, he gave them all to the friend’s brother; but the brother, who was examined as a witness on behalf of the petitioner, denies this, and declares that no letters from her ever came to his possession. He admits, however, that there were letters from an English lady, of high social position, between whom and his brother, according to “ gossip,” the “ relationship ” was “ very close,” up to the time of his going to Egypt, where he was killed; and it is within the range of possibility that a desire to screen this lady at the expense of a foreigner, in whom he had no interest, may have furnished a motive to the godfather, who was an Englishman, also of “ high social position.”
    In 1890, when there was a likelihood of the petitioner’s becoming a charge on the public, the godfather referred inquirers to the decedent. She was then very ill, and communications addressed to her came to her husband. These communications were from a Bow Street lawyer on behalf of the Irish caretakers, and the. husband, shocked by what was thus brought to his knowledge, and unable to communicate with his wife as to the real facts, was induced to pay a considerable sum of money to suppress a story which, as he then thought, covered himself and his family with disgrace; but soon afterwards, when further demands were made on him, when, it is fair to believe, the wife had sufficiently recovered to make him acquainted with the real facts, he declared, in a letter addressed to this lawyer, “ As to the persons who now, taking exception to the settlement concluded with you, suggest an appeal to me, I will say that had I possessed a month ago the data now in my hands and for the collection of which some time was necessary, I would not have paid them one penny. If they apply to me in France I am determined to make it a matter of summary police' correctionelle.” This defiance to a lawyer, having in his possession all the information now presented to the court, was in September, 1890; and there the matter rested, without any action, whatever, until May, 1899, when the present petition was presented, more than two years after the death of the decedent and nearly two years after the death of her husband.
    It has often been said that a claim of right not asserted as a legal demand until after the death of the party affected by it, although upon the claimant’s own showing it originated and matured many years before, comes before the court — and especially the court established for the protection of those no longer able to protect themselves, discredited on its face, and with every presumption against it; and this applies with increased force where the claim, repudiated in the lifetime of a decedent, not only involves a large portion of the estate, but, if sustained, blasts the decedent’s good name, and convicts of the commission of a heinous, most disgraceful crime. A recovery in such a case can only be had upon evidence clear and convincing; the claim must be established by the testimony, free from inconsistency or contradiction, of witnesses whose veracity is unimpeachable ; and the circumstances must be such as to be inconsistent with any other explanation and leave no rational doubt of the justice of the claim. To doubt as to such a claim, must, necessarily, be to deny.
    It is enough to say that the testimony in support of the claim in the present case is not of this character, and that, apart from inherent, manifest improbabilities, the witnesses contradict themselves and each other; this being especially noticeable in the case of the leading witnesses relied on to establish the claim. The daughter of the Irishwoman declares that the father and mother of the child came almost daily, in the years 1880, 1881, 1882 and 1888; and William Kelly (Father Matthew), who was introduced to the mother and actually saw her “ nursing the baby,” in 1880, tells how freely and openly she talked to him in 1883, when she and the father were about to start “ on a voyage around the world ”; yet the godfather speaks of her dread of discovery, and of his going with her three times during the years mentioned, because she was “ afraid to go.” A janitor, Royer, who says he saw the mother several times in 1882 or 1883, and, seventeen years afterwards, is able to identify her by a photograph, is contradicted by his own written statement. Another janitor, Rivey, janitor of the building in which the child was born, who at times saw the mother in 1880, during the month in which she was confined, is able to identify her after the lapse of twenty years. He declares that the two Irishwomen, mother and daughter, came there for the child — the mother going upstairs and carrying the baby in her arms, leaving in a cab, while the parents remained until three or four in the afternoon; but the daughter swears that the child was brought to them, in their apartment, by the father, who gave it to her, and that the father and mother “ always said it was born in England.” The daughter also swears that the Bow Street lawyer asked her to employ him, which he denies and declares to be untrue. He admits, however, that he deceived his clients ; that he acted for both parties; and finally, after having undertaken, in the most solemn manner, not to act further in the matter, that he broke his engagement and, after the death of the decedent and her husband, renewed his connection with the petitioner. He also swears that the godfather, Mr. Petre, told him who the mother was, while the latter swears that he did not. Mr. Petre gives a dramatic account of a trouble which occurred at the baptism because of the unwillingness of the priest to permit the mother to sign for the absent godmother, because that would be '“illegal,” but the priest himself, Father Cassabianca, tells us, that such signing would be entirely proper — the same thing being also said by Father Matthew. Madame Théophile Vielletet swore, that she saw the baptismal party — the nurse and child, godmother and godfather, and a lady and gentleman, “ said to be the father and mother; ” but on finding that she had fixed the time three years too late, she said, quite unconcernedly, “ I did not affirm that it was the baptism of the little one. Miss- Redmond did not tell me. People said it in the neighborhood. Perhaps it was the baptism of another child in the house.” The testimony of Miss Redmond is so saturated with contradiction and prevarication that the mere reading of it is sufficient to show its utter unreliability.
    In cases of this character, discrepancies, even' as to seemingly trifling matters, have always been regarded as significant. A notable illustration is reported in a book of very high authority (Apocrypha, Hist. Susanna, chap. 1).
    When opposed to all this is the testimony of the numerous witnesses on behalf of the respondents, which, if believed, and there seems to be no reason to doubt it, proves that the decedent could not possibly have been the mother of this child, we can have no hesitation in declaring that the petition to vacate the decree confirming the adjudication and permit the petitioner or his assignee to participate in the distribution of the decedent’s estate, must be dismissed.

      Error assigned was the decree of the-court.

      G.ustavus Remak, Jr., of Remah Eiohholtz, and Alex. Simpson, Jr., for appellant.
    ' John G. Johnson, for appellees.
    February 5, 1906:
   Pek Cubiam,

The decree is affirmed on the opinions of the court below.


author: Mr. Justice Potter,

text:
    Casey, Appellant, v. United States Express Company.

      Negligence — Express company — Wagon—Street.
    In an action against an express company to recover damages for personal injuries, the evidence tended to show that at the time of the accident one of the defendant’s wagons was standing in a street backed towards the baggage room of a railroad station. Between the end of the wagon and the baggage room was a well-defined footway, or sidewalk, about five feet wide, which had been used by the general public for many years, and in part at least was divided from the driveway by a curb. As the plaintiff passed between the wagon and the baggage room, the driver of the wagon, without any warning, started to back it, and plaintiff was caught and injured. Held, that the case was for the jury.
    Argued Jan. 3, 1906.
    Appeal, No. 117, Jan. T., 1905, by-plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1902, No. 2617, refusing to take off nonsuit in case of William J. Casey, a minor, by his next friend, Harris N. Street, v. United States Express Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before McMichael, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      William F. Brennan, with him Horace M. Bumsey, for appellant,
    cited : Cohen v. R. R. Co., 211 Pa. 227; Com. v. Llew-. ellyn, 14 Pa. Superior Ct. 214; Godino v. Kane, 26 Pa. Superior Ct. 596; Metzler v. Ry. Co., 28 Pa. Superior Ct. 180; Coolbroth v. R. R. Co., 209 Pa. 433; Ry. Co. v. Fielding, 48 Pa. 320; Kehler v. Schwenk, 144 Pa. 348; Rachmel v. Clark, 205 Pa. 314; Fetterman v. Rush Twp., 28 Pa. Superior Ct. 77; Streitfeld v. Shoemaker, 185 Pa. 265; McCloskey v. Ice Co., 174 Pa. 34; Russell v. Westmoreland County, 26 Pa. Superior Ct. 425; Biddle v. Ry. Co., 112 Pa. 551; Chambers v. Carroll, 199 Pa. 371.

      Lester B. Johnson, with him John F. Keator, for appellee,
    cited: Weiss v. South Bethlehem Borough, 136 Pa. 294; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Phila. & Reading R. R. Co. v. Spearen, 47 Pa. 300; Gillis v. Penna. R. R. Co., 59 Pa. 129; Young v. Omnibus Co., 180 Pa. 75.
    February 5, 1906:
   Opinion by

Mr. Justice Potter,

In entering judgment of involuntary nonsuit in this case the trial judge rested it, in the first place, upon his conclusion that there was no sufficient evidence that the place where the accident happened was a public street. But the record shows that there was considerable testimony that the place had been used for many years as a public highway, and that a portion of it, upon which the plaintiff was walking at the time, was well defined as a footway or sidewalk, and that, in part at least, it was divided from the driveway by a curb and a depression in the surface of the ground. It was not necessary for the plaintiff to prove that the street had been formally dedicated to public use, or that it had been accepted as such by the municipal authorities. There was evidence, which, if believed by the jury, would have justified a finding that for a long period of time the general public had been in the habit of passing to and fro on this street, and along the pathway at the side, without •question or hindrance from anyone. We cannot, therefore, agree, that there is no sufficient evidence that the accident occurred upon a public street. Neither do we think that, as a matter of law, it can be said that the plaintiff was clearly guilty of contributory negligence in attempting to pass along the footpath, between the rear end of the wagon and the wall of the building. His testimony is, that as he approached the point the wagon was standing still, with a space of nearly five feet in width left for him to pass through. He says the driver and his helper were both in the wagon, and that they were talking to each other, and no warning was given to the plaintiff of any intention to back the wagon up against the building. But, just as the plaintiff was passing the rear end of the wagon, and was between it and the wall, the driver, without looking around to see if anyone was in danger, and without taking any precaution, suddenly backed the horses, and forced the rear end of the wagon across the line of the footpath and up close to the door of the baggage room, catching and injuring the plaintiff. The simplest precaution upon the part of the driver, by the mere turning of his head to look before backing up, would have avoided the accident, and the evidence as to his action in this respect fairly raises a question of negligence which was for the jury to determine. So also was the conduct of the plaintiff in passing behind the wagon. If it was standing still as he approached, and there was no sign of any intention upon the part of the driver to back up, it would be difficult to justify any inference of contributory negligence upon his part. Under the evidence as a whole we think that in this case the questions of negligence and contributory negligence should have been, under proper instructions from the court, submitted to the jury.

The judgment is reversed with a procedencjo.


author: Per Curiam,

text:
    Wilson v. Cather, Appellant.

      Equity — Jurisdiction—Title to land.

    A court of equity will have jurisdiction over a bill for an injunction to compel the removal of obstructions to an alley, where it appears that the plaintiff's right to the use of the alley is clear. In such a case it is not necessary that the plaintiffs's right should first be settled at law.

      Alleys — lácense—Revocable license — Adverse possession.

    Where the owner of land on which there is an alley gives to the adjoining owner a revocable license to erect and maintain a structure over the alley, reserving egress and ingress, the licensee cannot claim title by adverse possession after the expiration of twenty-one years from the. date of the license.

      Argued Jan. 5, 1906.
    Appeal, No. 155, Jan. T., 1905, by defendant, from decree of O. P. No. 3, Phila. Co., June T., 1904, No. 5032, on bill in equity in case of James Paul Wilson and Oscar W. Wilson v. Bertha E. Cather et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to compel the removal of obstructions to an alley.
    From the record it appeared that' plaintiffs owned the premises 4207 Frankford avenue in the city of Philadelphia, and that the defendants owned the adjoining property 4205 Frank-ford avenue. In 1800 the common owner of the two lots conveyed plaintiff’s lot “ with the privilege of an alley, or passage of ten feet wide to be left open over and across ” the-other lot. In 1874 the property belonging to the plaintiffs was owned by their ancestor, Abel Wilson, and the property belonging to the defendants was owned by one K. Schott. On January 1, 1874, Wilson and Schott met together and executed the following paper:
    “Jan. 1, 1874.
    “ Leopold Schott,
    “ This is to certify that I have given permission to Leopold Schott of Frankford 23rd Ward Phila. State of Pennsylvania to construct,a barn and shed and to hold Possession of said right of way Except Egress and Ingress as it now Stands for a Term at my own option. First day of January one Thousand Eight Hundred and Seventy-four At a yearly Rental of one cent. And that he Leopold Schott will not be compelled to give Possession for a less Period than Sixty days’ Notice and that he will at any time under any circumstances give Possession in Sixty days to said Abel Wilson his heirs or assigns and leave said alley or right of way according to Deeds.
    (Signed) “ Abel Wilson L. Schott.
    “ Thos. B. Taylor,
    “ John B. Wilson.”
    In pursuance of the license Schott erected a shed over a part of the alleyway, leaving a passage only three feet wide. Schott died in 1885. The evidence showed that the defendants closed up the alleyway by building a fence across each end, and were now using the alleyway as a sideyard to a dwelling.
    The defendants demurred to the bill. After argument upon the demurrer McMiohael, J., filed the following opinion :
    In this case the bill sets up title by deed to the use and privilege of an alleyway of ten feet over defendant’s land, and that the defendants have wrongfully taken possession of the alley.
    Where there is a controversy over a question of a title at law, equity will not interfere until the matter of title has been settled at law: O’Neil v. McKeesport, 201 Pa. 386, citing Washburn’s Appeal, 105 Pa. 480. To the same effect are Rhea v. Forsyth, 37 Pa. 503 ; North Penna. Coal Co. v. Snow-den, 42 Pa. 488 ; Long’s Appeal, 92 Pa. 171; Thomas v. Hukill, 131 Pa. 298.
    But where in a proceeding in equity the plaintiff’s title is clear, and all the evidence relating to it is of such a character that a judge, in a trial at law upon the same evidence, would not be at liberty to submit the question of the plaintiff’s title to a jury, equity will grant relief, although there has been no adjudication at common law : Richmond v. Bennett, 205 Pa. 470.
    Assuming, as we must upon the hearing upon demurrer, the title to be as asserted by plaintiff, and also assuming the facts alleged in the plaintiff’s bill to be true, that the defendants have wrongfully deprived plaintiffs of their easement, the only question remaining is, have the plaintiffs an adequate remedy at law? In Ferguson’s Appeal, 117 Pa. 426, in which the opinion of the Supreme Court was delivered by Mr. Justice Paxson (p. 450), a case somewhat similar to the present one, the jurisdiction of a court of equity was sustained. So also in the case of Hacke’s Appeal, 101 Pa. 245. In Manbeck v. Jones, 190 Pa. 171, it was held that where a continuous and apparent servitude is imposed by an owner upon one part of his land for the benefit of another, and where the right to a way is not doubtful, but is clearly shown, .equity' has jurisdiction to compel the keeping open of the way. So also in Miller v. Lynch, 149 Pa. 490, which was a bill for an injunction to restrain the defendant from building over an alley, it was held by the Supreme Court in a Per Curiam opinion (p. 464), the injury complained of was of a permanent nature, and not reparable by an action of damages or ejectment.. It is settled that a court of equity will interfere to restrain by injunction a trespass of a permanent nature: Masson’s App., 70 Pa. 26. The appellants allege, however, that the plaintiff’s right should have been first settled at law. This would be so if there was a serious dispute in regard to it. Where his right is clear, however, a chancellor will not hesitate to act. It is not enough for the defendant to deny the plaintiff’s right; his denial must be based upon facts which show a substantial dispute. The facts found by the master show that the plaintiff’s right to the use of this alley in the manner claimed by him was entirely clear. It would have been useless to send the case to a jury to settle a question of fact which is not of a tangible nature.
    The demurrer is therefore overruled, with leave to the defendant to answer.
    The case was subsequently heard on bill, answer and proof, and von Moschzisker, J., after finding the facts, delivered the following opinion:
    At every stage of this proceeding the defendants have contended, through their counsel, that they owned the bed of the ten feet wide alley in question, absolutely and in fee, free and discharged of any use which may have been at any time reserved therein to others; that they and their predecessors in title had held open, notorious, exclusive, continued and adverse possession thereof for upwards of thirty years; that the plaintiffs should be put to an action at law and an issue should be granted to try this question of title before equity should take any jurisdiction in the case. A demurrer was filed at the beginning of the case and a demand for an issue made. This demurrer was overruled and the question of' granting an issue left to the discretion of the court when the case should come up on bill and answer. When the case was called for hearing, the demand that an issue be granted was again made, but the court decided to hear the testimony in the case, reserving a ruling as to the granting of an issue until after the testimony should be heard. After the hearing of testimony the demand for the granting of an issue was again repeated and the court held the matter under consideration.

      (a) On a full consideration of all of the facts as shown by the testimony taken, of the authorities cited, and of the arguments of counsel, the court has reached the conclusion that it would be improper to grant an issue, to fay the question of title in this case, and that the facts can be properly found and relief granted in the present proceeding.
    (5) We feel that the right here is quite clear, and that the proofs show that the denial of the right is not based upon facts which in law show a substantial dispute. If the present case were being tried before a jury, the court would be justified in charging that if the jury.believed that the shed was erected by Schott in 1874, under and in pursuance of the paper signed by said Schott and Wilson on January 1, of that year, that-that was a personal license to Schott for that purpose, and that the occupancy of the land by that construction during the lifetime of said Schott, under the evidence in this case, would not in any sense be an exclusive, adverse and hostile occupancy; and, further, that there is no other testimony in the ease sufficient in character to show a continued, exclusive, open, notorious and adverse occupancy against the plaintiffs or their predecessors in title for twenty-one years and upwards. This would practically leave the question as to this paper as the only matter to be found by the jury, that is, as to whether the paper produced was a genuine paper, and as to whether the construction of the shed was made Tinder authority and in pursuance thereof, and as to that there could be but one finding, and that in favor of the contention of the plaintiffs, as the testimony on the point is not only competent but absolutely all one way and uncontradicted. Any other finding could not be sustained.

      (o) Schott died in the year 1885, less than twenty-one years from the present time, so that, looking at it from the worst point of view for the plaintiffs’ case, if the occupancy of a good part of the soil of the alley by this shed since the date' of Schott’s death could be taken as an exclusive, open, notorious and adverse possession, still the statutory period of twenty-one years has not expired.

      There is no question whatever that the ten feet were originally reserved by deed as an alley for the use of the owners, tenants and occupiers of the property of the plaintiffs in common with the other properties bounding thereon, and that this' alley, although not always referred to in the deeds in the line of title of the two properties in question, was referred to in some of the subsequent deeds in both lines of title; and, further, that there is not any testimony anywhere in the case that shows any extinguishment thereof by deed or writings in the nature thereof, therefore to that point the plaintiffs’ show a clear right to the relief they ask.

      (d) The right to the alley having been created by deed and never extinguished, and the evidence as to the erection of the shed depended upon by the defendants to show continued, exclusive, open, notorious and adverse possession having been met by strong and uncontradicted competent evidence that such possession was not hostile or adverse down to the year 1885 at least, and the other testimony given not of itself being sufficiently substantial in its nature to throw any grave doubt upon the continued existence of the right to use the alley, looking at the case as a whole, there is not presented a substantial dispute as to title, therefore an issue should not be granted. The proofs adduced and the facts found make this plainly an instance in which the court can and should act on the case as presented.
    On the findings of the court, all of the prayers of the bill, with the exception of the sixth, will have to be granted as against the defendant, Bertha E. Cather, and the costs placed upon that defendant, and the bill will have to be dismissed as to John Cather, the other defendant. Counsel for the plaintiffs will prepare and submit a decree accordingly.

      Error assigned was the decree of the court.

      William Drayton, for appellant.
    The right was not clear and there was a serious dispute as to the material facts: Piro v. Shipley, 211 Pa. 36.
    Defendants had title by adverse use and are not bound by the license of January 1, 1874: Meehan v. Williams, 48 Pa. 238; Sweetzer v. Atterbury, 100 Pa. 18; Boyer v. Webber, 22 Pa. Superior Ct. 35; Bond v. Stroup, 3 Bin. 66; Bracken v. Miller, 4 W. &. S. 102; Arnold v. Corman, 50. Pa. 361; Smith v. McNeal, 68 Pa. 164; Carr v. Wallace, 7 Watts, 394.
    Rejecting .the unrecorded lease the preponderating weight of the testimony is clearly on the side of adverse possession; but even conceding, for the sake of argument, that there is a greater amount of testimony against it than 'for it, no chancellor could say it was so clear that there was not a serious dispute. Defendants’ denial was based upon facts which show a substantial dispute: Miller v. Lynch, 149 Pa. 460.
    It is clear that questions of title of this kind should be referred to a jury: Rhea v. Forsyth, 37 Pa. 503; North Penna. Coal Co. v. Snowden, 42 Pa. 488; Long’s App., 92 Pa. 171; Washburn’s App., 105 Pa. 480; Thomas v. Hukill, 131 Pa. 298; Williams v. Fowler, 201 Pa. 336; O’Neil v. McKeesport, 201 Pa. 386; Scanlin v. Conshohocken Boro., 209 Pa. 48; Coward v. Llewellyn, 209 Pa. 582; Godino v. Kane, 26 Pa. Superior Ct. 596.

      William H. Peace, for appellees.
    The court below has found that the plaintiff’s right to this easement was created by deed; that the title to its use was clear, and that no substantial dispute of this right, in a legal sense, was shown by the defendant. That being so, it is submitted the following cases are in point: Hacke’s App., 101 Pa. 245; Ferguson’s App., 117 Pa. 426; Miller v. Lynch, 149 Pa. 460; Manbeck v. Jones, 190 Pa. 171; Piro v. Shipley, 211 Pa. 36; Schmoele v. Betz, 212 Pa. 32; Gray v. Citizens’ Gas Co., 206 Pa. 303.
    The defense was non-user of the alley for over twenty-one years by plaintiffs ; but the testimony was of a negative character, and if presented to a jury, binding instructions for plaintiffs would have been given: Lindeman v. Lindsey, 69 Pa. 93; Bombaugh v. Miller, 82 Pa. 203; Dark v. Johnston, 55 Pa. 164; Baldwin v. Taylor, 166 Pa. 507.
    January 29, 1906:
   Per Curiam,

The decree is affirmed on the opinions of the court below, overruling the demurrer, and on the final hearing.


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    Hess v. Gerstlauer, Appellant.

      Affidavit of defense — Practice, C. P. — Promissory note — Partnership.
    In an action upon a promissory note the affidavit of defense set forth that the note in suit was a renewal of a former note, and that it was executed and delivered by the defendant in blank, with the understanding that the firm name of a partnership should be filled in as payee; but instead of inserting the firm name, that of one of the individual partners was inserted. It was averred that the defendant had a defense to the claim of the firm, but the grounds of such alleged defense were not in any way specified or set out. It was also averred that as between the plaintiff and defendant there was no consideration. Held, that the affidavit of defense was insufficient to prevent judgment.
    Argued Jan. 5, 1906.
    Appeal, No. 91, Jan. T., 1905, by-defendant, from order of C. P. No. 5, Phila. Co., March T., 1903, No. 2097, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Hess v. David Gerstlauer.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The supplemental affidavit of defense which incorporated the averments of the affidavit of defense was as follows :
    “ That your deponent denies that he is indebted to the plaintiff in any amount whatever. That the note in suit was executed by your deponent in blank, on or about October 1,1897, with the understanding and intention that the name of ‘ Spaeth, Krautter & Hess ’ should be inserted as the payees thereof; that said note was signed by your deponent at the office of ‘ Spaeth, Krautter & Hess ’ in renewal of an older note for the same amount held by him. That your deponent was not and is not now indebted to the said Henry Hess in any amount whatever and would have refused at all times to sign a note in his favor.
    “ That your deponent is informed and believes that the firm of ‘ Spaeth,- Krautter & Hess ’ never authorized the said Henry Hess to insert his name in said note as the payee thereof; that said note always was and still is the property of the said firm of ‘ Spaeth, Krautter & Hess; ’ that said firm never parted with its title thereto and that the name of Henry Hess was falsely and fraudulently inserted therein as the payee thereof.
    “ That your deponent has a full and complete defense to the claim of ‘ Spaeth, Krautter & Hess,’ but is advised and believes that it is unnecessary for him to set forth the same at this time; that your deponent is further advised and believes that the said plaintiff has no authority to prosecute this action on behalf of the firm of ‘ Spaeth, Krautter & Hess.” ’
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Charles Lehr, for appellant.
    In an action by the payee of a promissory note against the maker, want of consideration is a good defense: Grubb v. Cottrell, 62 Pa. 23; Danner v. Hess, 19 Pa. Superior Ct. 182; Conmey v. Macfarlane, 97 Pa. 361.

      Joseph L. Greenwald, with him Clinton O. Mayer, for appellee.
    It has been held by the courts of this state, that where a note is signed and delivered in blank, it is an authority to fill in the blank: Weaver v. Paul, 4 Pa. Dist. Rep. 492; Wessell v. Glenn, 108 Pa. 104; Wagner v. Ditsche, 1 W. N. C. 125.
    If the defendant in this case had set forth a good defense as against Spaeth, Krautter & Hess, it might have been enough to have carried the case to a jury, but the mere use of disjointed sentences and of conclusions of law, have been repeatedly held not to be a good defense: Superior National Bank v. Stadelman, 153 Pa. 634; Hunt v. Muffly, 1 W. N. C. 389; Kavanaugh v. Woll, 3 W. N. C. 242; People’s Mut. Fire Ins. Co. v. Bergstresser, 1 Pa. Dist. Rep. 771.
    February 5, 1906:
   Opinion by

Mr. Justice Potter,

The affidavit of defense in this case set forth that the note in suit was a renewal of a former note, and that it was executed and delivered by the defendant in blank, with the understanding that the firm name of a partnership should be filled in as payee ; but instead of inserting the firm name, that of one of the individual partners was inserted. It was averred that the defendant had a defense to the claim of the firm, but the grounds of such alleged defense were not in any way specified or set out. Undoubtedly, if this note was in fact intended for •the firm, and if the defendant had set out in his affidavit a good defense as against it, no judgment could properly have been entered against him. But neither in the original nor in the supplemental affidavit is there any statement of facts which would constitute any defense to the action. The mere averment that, as between this plaintiff and the defendant, there was no consideration, is not sufficient, as, under the authority given by the signing of a note in blank, the name of the present payee may have been very properly substituted for that contained in a prior note'. The difficulty with the affidavit is that it sets out no defense against either the present holder or against any other parties who may, as is alleged, be the real owners of the note.

The assignments of error are overruled and the judgment is •affirmed.


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    Weatherbee, Appellant, v. Philadelphia, Baltimore & Washington Railroad Company.

      Negligence — Railroads—Infant—Nonsuit.
    In an action by a boy eight years old against -a railroad company to recover damages for personal injuries, it appeared that at the place of the accident the defendant had recently completed a retaining wall for the support of its elevated tracks. The wall was about eighteen feet high with a very considerable slope on the inside, and with rough, projecting stones. Up this slope, upon the back or inner side of the wall three or four boys, including the plaintiff, climbed. Two or three of the boys reached the top, and the plaintiff was nearly up, when a watchman of the defendant at the foot of the wall seeing the boys on top, called to them to get down. There was testimony that he shook hi£ flag or flag-stick at them, and that he made •a motion as if to throw a stone at them. The other boys called out to the plaintiff and he fell and was injured. The boys who had reached the- top got safely down without apparent difficulty. The watchman testified that he could not see the boy at the time, because of his position inside the wall. Held, that a nonsuit was properly entered.

      Argued Jan. 8, 1906.
    Appeal, No. 214, Jan. T., 1905, by plaintiff, from order of C. P. No. 4, Phila. Co., March T., 1904, No. 1641, refusing to take off nonsuit in case of John A. Weatherbee and Earl David Weatherbee, by his next friend and father, John A. Weatherbee v. Philadelphia, Baltimore & Washington Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      Sandberg Heyman, for appellant.
    The case was for the jury: Becker v. Philadelphia, 212 Pa. 379; Biddle v. Passenger Ry. Co., 112 Pa. 251; Enright v. Pittsburg Junction R. R. Co., 198 Pa. 166; Levin v. Traction Co., 201 Pa. 58; Brennan v. Merchant, 205 Pa. 258; Parker v. Ry. Co., 207 Pa. 438; Hyman v. Tilton, 208 Pa. 641.

      John Hampton Barnes, for appellee.
    February 5, 1906:
   Opinion by

Mr. Justice Potter,

The appellant here complains of the refusal by the court below to take off the judgment of compulsory nonsuit. The facts upon which it was entered, as appear from the testimony, are as follows: The defendant was erecting a retaining wall for the support of its elevated tracks, through the city of Chester. At the place where the accident happened the wall had been completed, and was about eighteen feet high, with a very considerable slope on the inside, and with rough, projecting stones. Up this slope, upon the back or inner side of the wall, three or four boys, including the plaintiff, climbed. It seems that two or three of them reached the top of the wall, and the plaintiff, who was behind the others, was nearly up, when the watchman of the defendant company, who was stationed at a watch box at the foot of the face of the wall, is said to have called out to the boys to get down. He is also said to have shaken his flag or flag stick at them, and to have made a motion with his other hand as if to throw a stone at them. The boy Weatherbee, the plaintiff, was not, as we have said, then at the top of the wall, but was coming up on the inside. From the relative positions of the parties, it is not apparent how the watchman could have seen him, or how he could have seen the watchman. However this may be, the other boys called out to the Weatherbee boy, and just then he fell to the bottom and was injured. The theory of the plaintiff is that the boy was frightened by the call of the watchman, and by his action, and that he fell because of his fright; but, if he was alarmed, it would seem that his fear must have been communicated to him by his companions, for the watchman was hidden from him by the wall which was between them.

The watchman was called as a witness by the plaintiff, and he testified squarely that he could not see the boy at the time, owing to the fact that he was inside of the wall, while the watchman was outside, and down below at the street level. He further testified that he made no threat against the boy, and did not see him until after his fall. But, even if the boy could have been seen by the watchman, we do not find anything in the evidence which would justify a charge of negligence against the defendant. It was the duty of the watchman to keep the boys off the premises, in order to avoid just such an accident as befell the plaintiff here. How could he reasonably be expected to keep them off without speaking peremptorily to them ? Even a gesture expressive of his intention to enforce his order could hardly be deemed an unreasonable action. The boys had climbed up, with apparent ease, the sloping back portion of the wall, by means of the rough ends of the projecting stones; and there was no reason to apprehend that they could not get down safely in the same way. The testimony does not show that they were driven unduly, or harassed in any way by the watchman. The boys who were in plain sight upon the top of the wall, and who were presumably the objects of the watchman’s attention, did get safely down, and without any apparent difficulty.

Under the evidence the trial judge discharged a manifest duty in entering a compulsory nonsuit and the judgment is therefore affirmed.


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    Creachen v. Bromley Brothers Carpet Company, Appellant.

      Appeals — Paper-books—Statement of question involved.

    A statement of the question involved which extends over more than a page, and is merely a repetition of the specifications of error, is a palpable violation of Rule 26.

      Appeals — Assignments of error — Evidence.
    An assignment of error which complains of the action of the court in sustaining an objection to a question, quoting the question, but nothing else, is insufficient.
    An assignment of error to the refusal of the trial court to admit a paper in evidence, is insufficient which quotes neither the record nor the paper.

      Evidence — Former trial — Examination of witness.

    At the third trial of the case the plaintiff was asked this question: “Do you not know that your testimony in these two trials was contradictory as to very many material facts?” The court sustained the plaintiff’s objection to the question. The record showed that the plaintiff was examined specifically and at length with regard to his testimony on two former trials, and that the testimony at the first trial was offered and admitted in evidence for the purpose of contradicting him. Held, that there was no error in sustaining the objection.

      Negligence — Machinery—Master and servará — Evidence.
    In an accident case where it appears that plaintiff was not injured while cleaning a machine, but in trying to remove choke, which he testified he had been directed to do, it is immaterial whether or not a sign had been displayed forbidding the cleaning of machinery while in motion.

      Appeals — Charge—Answer to point — Review.
    A judgment will not be reversed because a point presented by one of the parties was not answered if it appears that the question presented by the point was substantially answered in the general charge.

      Appeals — Second, appeal — Res adjudícala.

    On a second appeal matters passed upon at a prior appeal will not be reconsidered.
    Argued Jan. 8, 1906.
    Appeal, No. 206, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1901, No. 199, on verdict for plaintiff in case of Francis Creachen, by his next friend and mother, Elizabeth Creachen, v. The Bromley Brothers Carpet Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Ralston, J.
    The opinion of the Supreme Court states the case.
    See also 209 Pa. 6.
    Defendant’s points refused by the court were as follows :
    1. If the jury believe that the defendant had placed a conspicuous sign that machinery must not be cleaned while in motion, close to the machine, so that the plaintiff could see'it during all the time that the plaintiff worked on this machine, your verdict must be for the defendant.
    5. If the jury believe that the choking of the machine in the rear would have stopped the machine, throwing off its belt from the tight pulley, and the plaintiff was instructed when that occurred to call another employee to remedy the choke, your verdict should be for the defendant.
    6. ' If the jury believe that the plaintiff’s testimony on the first trial was correct and that his subsequent testimony contradictory thereof was given after he had learned that the testimony of the first trial would not entitle him to recover, then your verdict must be for the defendant.
    7. If the jury believe that the injured plaintiff has sworn consciously falsely as to any material fact, the verdict must be for the defendant.
    9. Under all the evidence, the verdict must be for the defendant.
    Verdict for plaintiff for $9,700 on which judgment was entered for $8,500, all above that amount having been remitted.

      Errors assigned were:
    (1) The learned trial judge erred in sustaining the plaintiff’s objection to the defendant’s question to the plaintiff on cross-examination: “Q. You do not know that your testimony in these two trials was contradictory as to very many material facts ? ”
    (2) The learned trial judge erred in sustaining the plaintiff’s objection to the defendant’s offer in evidence of- the first statement filed in this case and signéd and sworn to by the plaintiff.
    (3-7) Refusal of defendant’s points as above, quoting them..

      George L. Crawford, of Crawford & Loughlin, for appellant,
    cited: Robinska v. Lyman Mills, 174 Mass. 432; (54 N. E. Repr. 873); De Young v. Irving, 5 App. Div. 499 (38 N. Y. Supp. 1089); Oszkoscil v. Eagle Pencil Co., 25 N. Y. St. Rep. 925 (6 N. Y. Supp. 501); Standtke v. Swits. Conde. Co., 53 App. Div. 500 (65 N. Y. Supp. 942); Stoll v. Hoopes, 22 W. N. C. 159; McEwen v. Hoopes & Townsend, 175 Pa. 237; Zurn v. Tetlow, 134 Pa. 213; Wallace v. R. R. Co., 165 Mass. 236 (42 N. E. Repr. 1125).

      Howard A. Davis, with him David Lavis and John T. Murphy, for appellee.
    February 5, 1906:
   Opinion by

Mr. Justice Potter,

The statement of the question involved in this case is a palpable violation of Rule 26. In the language.of the rule, the statement “ should not exceed six or eight lines, and must not, under any circumstances, exceed half a page.” Here, it extends over more than a page, and is merely a repetition of the specifications of error. The appeal might very properly be quashed for this reason alone: Van Sciver Co. v. McPherson, 199 Pa. 331.

The first assignment of error complains that the court below sustained an objection to a question asked plaintiff on cross-examination. It then quotes the question, but nothing else. This assignment is bad, in failing to “ quote ” the record: Gish v. Brown, 171 Pa. 479. If the question referred to in this assignment was admissible, its exclusion could have done no harm to defendant, for an inspection of the testimony shows that the plaintiff was examined specifically and at length with regard to his testimony on former trials, and that extracts from his evidence as given at each, were read to him by counsel for the defendant, and that he was asked as to the alleged discrepancies between the two. In addition, his testimony at the first trial was offered and admitted in evidence, for the purpose of contradicting him. The defendant therefore had the benefit of everything that would have been gained by an answer to the question: Worrall v. Pyle, 132 Pa. 529; Collins v. Houston, 138 Pa. 481; Fitzpatrick v. Traction Co., 206 Pa. 335.

The second assignment complains that the court below refused, to admit in evidence the original statement filed in the case, and signed and sworn to by plaintiff. This assignment is bad because the record is not quoted: Gish v. Brown, 171 Pa. 479. It is also bad because the paper is not quoted: Kaufman v. R. R. Co., 210 Pa. 440; Jenkinson v. Eggers, 28 Pa. Superior Ct. 151.

The third assignment relates to the refusal to affirm defendant’s first point of charge, which was evidently based upon the case of McEwen v. Hoopes, 175 Pa. 237. But in this case, tíre plaintiff was not injured while cleaning the machine, but in trying to remove the choke, which he testified he had been directed to do. It would therefore be immaterial whether or not a sign had been displayed forbidding the cleaning of machinery while in motion.

The fourth assignment relates to the refusal to affirm the defendant’s fifth point, but no argument is made in support of this assignment, nor is any evidence pointed out which would sustain the point. An examination of the testimony fails to show that there was evidence of all the facts as stated in this point.

The fifth and sixth assignments relate to the refusal to affirm defendant’s sixth and seventh points for charge, as to the effect of the alleged contradictions in plaintiff’s testimony. The instructions here asked for were substantially given in the charge, where the jury were instructed that “ It is the maxim of the law that if a man, who is under oath, testifies falsely in one particular, you would be justified in not believing him in anything.” A judgment will not be reversed because a point presented by one of the parties was not answered, if it appears that the question presented by the point was substantially answered in the general charge: Fleming v. Dixon, 194 Pa. 67, and cases there cited.

The seventh assignment complains of the refusal of the court below to give binding instructions in favor of the defendant. A comparison of the present case with the appeal in 209 Pa. 6, shows that the evidence was substantially the same in both cases as to the general liability of the defendant, and as to the matter of contributory negligence, and with respect to the condition of the record as to the testimony of the plaintiff. The questions properly raised by this assignment of error must, therefore, be considered as having been passed upon under the former appeal. A reargument of them in substance, cannot be entertained: Cowen v. Plate Glass Co., 188 Pa. 542.

The assignments of error are all dismissed and the judgment is affirmed.


text:
    Boning’s Estate.

      Trusts and trustees — Executors and administrators — Substituted trustee— Will.

    Testator having appointed two persons as executors and trustees of his will, directed as follows: “In case of the death of either of my executors I authorize and require the survivors to appoint some other individual in the place of the deceased executors to be testified by writing under the hand and seal of the said surviving executor which I direct to be filed in the office of the Register of Wills of the County of Philadelphia, which individual so appointed shall have all the power of an executor and trustee as if originally named as such in this my will.” Held, that the power to appoint a trustee was confined only to the survivor of the two persons named in the will, and that the person appointed by the survivor could not in his turn appoint another trustee.
    Argued Jan. 10, 1906.
    Appeal, No. 154, Jan. T., 1905, by E. A. Adams, from decree of O. C. Phila. Co., declaring void the appointment of a trustee in Estate of William Boning, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to declare void the appointment of a trustee.
    The court, Penrose, J., filed the following opinion :
    The very able and learned argument of counsel for the respondents demonstrates that the well-settled principle which permits a testator to delegate to another the power to name his executors, and gives to the persons so appointed precisely the same authority as if they had been selected by the testator himself, is universally recognized; but the question now presented is not as to the authority of an executor or trustee so appointed to execute the ordinary functions of an executor or trustee, but whether the testator in the present case intended, as he undoubtedly had the right to do, that the appointee should have the extraordinary power of naming a successor to the executor or trustee by whom he was selected, at the death of such executor or trustee, with like power, of course, to the person so appointed; and so on to his appointees ad infinitum.
    The question, if, indeed, it can be regarded as a question, is answered by the will itself: “ I constitute and appoint ” it says, “my friends, Henry Vollmer and John C. Steiner, executors of this my will, and also trustees under the same, and also to be the testamentary guardians of the persons and estates of my said two children. Item in ease of the death of either of my executors I authorize and require the survivors to appoint some other individual in the place of the deceased executors to be'testified by writing under the hand and seal of the said surviving executor which I direct to be filed in the office of the Register of Wills of the county of Philadelphia, which individual so appointed shall have all the power of an executor and trustee as if originally named as such in this my will.”
    Thus it will be seen that the power to name “ some other individual ” in case of death of “ either ” of the executors named in the will is given only to the “ survivor ” of the two, who though spoken of as executors are in this way individuated while the power given to the “ individual ” (not individuals) so appointed is, not that given to the two executors whom he has named, but only “ the power and authority of an executor, as if originally named as such in this my will ” and that a single appointment only was intended is clear since but one person, “ such individual so appointed ” is spoken of, not “ the persons from time to time so appointed,” who is to have the same power as if originally named in the will.
    The testator died in 1869, and one of the two executors named in the will being then dead the “survivor” in the exercise of the authority and duty thus enjoined upon him appointed, in the manner directed, a successor. Thirty-five years later, viz: in 1904, the executor who made the appointment, died, and his appointee, claiming that the will gave to him also the power to so do, has appointed a young lady in his employ as stenographer.

      We think it clear that this cannot be done. An authority so extraordinary in its character which is not only in derogation of the usual course of law but deprives the parties in interest of the right given to them by act of assembly to nominate a successor in the trust, can only be conferred by clear, unequivocal and unambiguous terms — more especially where the effect of its exercise is to place the estate, amounting in this case to $18,000, in the hands of one who may be entirely irresponsible and otherwise unfitted for the proper performance of the duties of trustee without the requirement of security.
    The appointment, having in our opinion been made without authority, is null and void. The prayer of the petition is granted. Counsel will prepare the necessary decree.

      Error assigned was the decree of the court.

      John A. Clark, for appellant.

      Alfred Moore, for appellee was not heard.
    January 29, 1906:
   Per Curiam,

Decree affirmed on the opinion of the court below.