author: Me. Justice Pottee,

text:
    Skeer’s Estate.

      Executors and administrators — Failure to collect assets — Negligence — Surcharge.
    Where one member of a partnership consisting of two persons, dies at a> time when the firm had ceased to engage in active business, and the assets are being liquidated by a son of the other partner, and the executrix who was also the widow of the deceased partner, makes no attempt to collect the interest of her husband which amounted to over fifty thousand dollars, but gives a power of attorney to the son of the other partner who was also deceased, and upon the death of such son after four years, gives a power of attorney to another son of the other partner, under which he acts for five years, until the whole estate is lost by the embezzlement of the attorney, and it appears that the executrix from family and social considerations made no attempt to secure an accounting or a settlement from either of the brothers, although if she had acted promptly she could have saved the whole amount, she will be surcharged with the loss at the instance of the other parties interested in the estate.
    Argued March 5, 1912.
    Appeal, No. 89, Jan. T., 1912, by Charles O. Sheer, et al., from decree of O. C. Carbon Co., dismissing exceptions to auditor’s report in estate of Charles O. Sheer, deceased.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to report of Jacob C. Loose, Esq., auditor. Before Heydt, P. J.
    The facts are stated in the opinion of the Supreme Court.

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

      John (}. Johnson, with him Freyman & Noth stein, O. Wilson Roberts and E. Montgomery Smith, for appellants.
    The plaintiff was guilty of supine negligence: Chambersburg Saving Fund Association’s App., 76 Pa. 203; Charlton’s App., 34 Pa. 473; Neff’s App., 57 Pa. 91; Shaffer’s App., 46 Pa. 131; Gardner’s Est., 199 Pa. 524; Keller’s App., 8 Pa. 288; Merkel’s Est., 131 Pa. 584; Webb’s Est., 165 Pa. 330; Stokely’s Est., 19 Pa. 476; Wills’ App., 22 Pa. 325; Lazarus’s Est., 4 Kulp 24.
    May 13, 1912:

      A. H. Wintersteen, with him Laird H. Barber, for appellee.
    An auditor’s findings are conclusive: Thompson’s App., 103 Pa. 603; Whiteside’s App., 23 Pa. 114; Loomis’s App., 22 Pa. 312; Bedell’s App., 87 Pa. 510; DeWolff’s Est., 181 Pa. 187.
    The executrix was not negligent: Webb’s Est., 165 Pa. 330; Bartol’s Est., 182 Pa. 407; Sample’s Est., 189 Pa. 385; Fahnestock’s App., 104 Pa. 46.
   Opinion by

Me. Justice Pottee,

This proceeding was the adjudication of the fourth and final account of Ellen B. Skeer, administratrix of the estate of Charles O. Skeer, deceased. Exceptions to the account were filed by the collateral heirs of the decedent, in which they alleged that the administratrix was guilty of gross negligence in failing to collect a large amount of money due to the estate from those who were charged with the settlement of the affairs of the firm of Linderman & Skeer.

The court below appointed an auditor to consider the exceptions and to report a schedule of distribution. The only exceptions which are here brought in question are those relating to the interest of the decedent in the firm of Linderman & Skeer. This interest as shown by a trial balance taken shortly after the death of decedent, was valued at $161,876.34, but in the inventory and appraisement filed in the register’s office, it was appraised at $57,211.96. The auditor, however, refused to surcharge the accountant with any part of this sum, and dismissed the exceptions relating to the failure of the administratrix to realize upon this asset. The court below overruled tbe exceptions to tbe auditor’s report, and confirmed it absolutely. The exceptants have appealed, and contend that tbe evidence showed that tbe accountant was guilty of gross negligence in failing to collect tbe amount due to tbe estate from tbe firm of Linderman & Skeer, and that sbe is liable for tbe amount collected and embezzled by ber agent and attorney in fact, Garret B. Linderman.

Prom tbe facts found by the auditor it appears that Charles O. Skeer, who resided in Mauch Chunk, died March 13, 1898, intestate, leaving a widow and collateral heirs. Letters of administration were granted to tbe widow, who filed an inventory and appraisement showing personal property of tbe appraised value of $850,477.53, tbe interest of decedent in tbe firm of Linderman & Skeer being appraised at $57,211.96. Tbe firm was originally composed of Dr. G. B. Linderman, of South Bethlehem, Pa., and Charles O. Sheer, tbe interest of tbe latter in tbe partnership being nine-twenty-eighths. Tbe firm was originally engaged in tbe operation of certain leased coal mines, but prior to Sheer’s death it bad ceased to operate mines or to engage in active business. At tbe time of Sheer’s death, tbe winding up of tbe firm’s business was in tbe bands of Robert P. Linderman, a son and one of tbe executors of Dr. G. B. Linderman. Mrs. Skeer, as executrix of ber bus-band, gave a power of attorney to R. P. Linderman, authorizing him to act for ber in tbe settlement of tbe business. Up to July 1902, Mrs. Skeer received tbe sum of $31,000 on account of tbe interest of Sheer’s estate in the firm. Sbe received nothing more during tbe lifetime of R. P. Linderman, who died in 1903. On December 8, 1903, Mrs. Skeer, as administratrix, gave to Garret B. Linderman, another son of Dr. Linderman, and a brother of R. P. Linderman, a power of attorney to represent ber in tbe settlement of tbe firm’s business. It seems that this was done without tbe knowledge or consent of any of tbe collateral heirs of C. O. Skeer, nor does it appear that any of them were informed of the existence of the power of attorney. On October 8, 1906, she received from Garret B. Linderman $10,000, making an aggregate of $141,000 paid her on account of the interest of her husband’s estate in the firm. On May 16, 1903, the book value of that interest was stated as $130,876.34.

Garret B. Linderman continued in charge of the settlement of the firm business, with Mrs. Skeer’s consent, until January 1908, when he was adjudicated a bankrupt, and it then transpired that he had collected and appropriated to his own use moneys of the firm, of which the share of the Skeer estate was $126,734.43. Deducting the sum of $7,500 paid by a surety company, the loss of the estate by reason of Linderman’s defalcation was $119,234.43. No action of any kind was ever brought by Mrs. Skeer to compel a settlement of the Linderman & Skeer partnership business, or to secure an accounting from either R. P. Linderman or Garret B. Linderman. The record shows that after the death of C. O. Skeer, the estate of Mr. Linderman collected from the firm of Linderman & Skeer, a total sum of $239,000, of which $157,000 was paid during the years 1906 and 1907. During the same period Mrs. Skeer, as stated above, received only $41,000, whereas her proportionate share would have been some $90,000.

The question of accountant’s liability is to be determined by inferences to be drawn from facts which are not disputed, and by the application to these facts of sound and established principles of law. The rule as to the liability for failure to collect assets of the estate is well settled. In Calhoun’s Estate, 6 Watts 185, 188, Mr. Justice Rogers said: “All that a court of equity requires from trustees is common skill, common prudence and common caution. Executors, administrators or guardians are not liable beyond what they actually receive unless in case of gross negligence; for when they act as others do with their own goods and with good faith, and are not guilty of gross negligence, they are not liable.” The language above quoted was repeated by Mr. Justice. Sharswood in Neff’s App., 57 Pa. 91, 96, and Mr. Justice Green in Webb’s Est., 165 Pa. 330, 336; Bortol’s Est., 182 Pa. 407, 410, and Semple’s Est., 189 Pa. 385, 390. In Webb’s Est., 165 Pa. 330, 336, Calhoun’s Est., (6 Watts 185) is referred to as “the leading case in Pennsylvania on this subject.”

Did the accountant here use common prudence, and exercise common caution, or was she grossly negligent? She took charge of the estate on May 21,1898. At that time, as stated above, the firm of Linderman & Sheer was not actively engaged in business. Its affairs were being closed up by Robert P. Linderman, acting under powers of attorney from the executors of his father, and from C. O. Sheer. After the death of the latter, his administratrix, the present accountant, permitted R. P. Linderman to remain in charge of the settlement of the affairs of the firm. This arrangement continued for some five years, when R. P. Linderman died, prior to December 8,1903, without having made settlement of the business of Linderman & Sheer, and without submitting any account to the administratrix. At that time, December 8, 1903, Mrs. Sheer, as administratrix, gave a power of attorney to Garret B. Linderman, authorizing him as her representative to settle the affairs of the firm. No final settlement of the firm’s business was made, and some four years later, in 1907, it was discovered that Linderman had appropriated to his own use funds of the Sheer estate amounting to $126,734.43. No suit for an accounting was brought by Mrs. Sheer, though more than nine years elapsed between the grant of her letters of administration and the discovery of Garret B. Linderman’s embezzlement. It appears from the testimony that Mrs. Sheer and her attorney frequently discussed the advisability of bringing suit for an accounting, and it was agreed that it ought to be done. But it was not done because of promises of adjustment made by tbe Lindermans, and because of Mrs. Skeer’s personal and social relations with them. After the defalcation of Garret B. Linderman became known, Mrs. Skeer brought no suit against him beyond filing proof of tbe debt with tbe referee in bankruptcy. Mrs. Skeer testified that when sbe gave tbe power of attorney to Garret B. Linderman, sbe did it with hesitation, although tbe executors of tbe Linderman estate requested it, and her own attorney advised it. Sbe said sbe never trusted him, and thought that be was cunning. But in spite of this feeling, sbe did not consider taking a bond from him, as security for tbe faithful discharge of bis duties, because sbe thought it would have been considered an insult to ask it of him. It appeared that among other assets, tbe firm of Linderman & Skeer owned valuable real estate in Hartford, Conn. In 1906, upon tbe petition of Mrs. Skeer, Garret B. Linderman was appointed ancillary administrator of C. O. Skeer at Hartford, and as such sold tbe interest of tbe Skeer estate in tbe real estate there, from which a net balance of $19,524.09 was realized, all of which was embezzled by Linderman. Tbe Surety Company which was upon bis bond as administrator, paid $7,500 as a compromise settlement, and this amount is included in tbe present account. Linderman bad previously sold personal property of tbe firm at Hartford for $50,045.67. As above noted, tbe books of Linderman & Skeer showed that after tbe appointment of tbe appellee as administratrix, there was paid to tbe estate of G. B. Linderman, $239,000, while tbe Skeer estate received only $41,000. This was far below tbe amount to which tbe Skeer estate was entitled. Tbe only excuse given for tbe failure to settle tbe partnership business, during this long period of nine years, was the alleged inability to dispose of tbe Hartford property, and tbe pendency of two law suits. It appears, however, that tbe Hartford property was entirely independent of tbe other business, and no reason was shown why it should have interfered with the settlement of the remainder of the firm’s affairs. One of the law suits in question was settled soon after Mr. Skeer’s death, and the other involved a liability at the most of $25,000.

We cannot regard the conduct of the administratrix in permitting this long delay in the settlement of the interest of the estate in the partnership as being anything else than gross negligence. It was her duty, as was said in Chambersburg Saving Fund Ass’n Appeal, 76 Pa. 203, 228; ...... within a reasonable time to maker proper efforts to convert all the assets and securities into money for distribution.” And if she failed to make such efforts, she “was guilty of gross negligence and became liable for any loss thereby sustained.” In Johnston’s Estate, 9 W. & S. 107, 109, Mr. Justice Rogers said: “It is a case, not of ordinary care, but of gross negligence, for he has failed to show that he made any effort whatever in proper time to recover the money. A mere application for payment, without more, would not have availed him. To entitle him to a crédit, he must, in addition, prove that he took legal steps to recover the sum due, or that, from the notorious insolvency of the debtors, a suit would have been useless. But, so far from this being true, the probability is that if ordinary diligence had been used the money would have been recovered.” This language fits accurately the facts of the present case. The record shows that while Mrs. Skeer and her counsel frequently discussed the bringing of suit, and were convinced of the propriety of so doing, yet for reasons which were largely personal and social, this obviously prudent step to protect the estate was not taken. The delay in the settlement of the partnership affairs was unreasonable, even at the date of R. P. Linderman’s death, as more than five years had then elapsed. The demands of ordinary prudence certainly required sharp insistence upon a settlement at that time. The administratrix, however, apparently made no investigation as to the condition of the firm affairs, but proceeded to give another power of attorney to Garret B. Linderman, whom, at the time, she said she distrusted. Notwithstanding her suspicions, she left the control of the matter in his hands, exercising very little, if any, oversight of his conduct in representing her. Only one instance appears in which she had an examination of the books made, and that was in 1904, when she employed an audit company to investigate the accounts of the firm. Their report shows that a large amount of cash and negotiable securities was then on hand, which should have been promptly distributed. That report also showed that in eight years, salaries amounting to $25,446.70 had been drawn from the firm for services which “were only nominal and could not have required more than two to three days annually.” This report in itself should have been enough to have placed any reasonably competent person on guard. As noted above, a simple inspection of the books of the firm in the year 1906 would have shown that the agent and attorney in fact of the administratrix was paying large sums of money out of the firm to the estate of his father in which he was interested, and at the same time was failing to distribute anything like a proportionate amount to the Skeer estate. This fact would have appeared from such an examination of the books as ordinary prudence would have suggested.

We can see nothing in the evidence to justify the inference which the auditor drew from the facts, that the conduct of the administratrix should be excused. No reasonable explanation of the long delay in compelling a settlement was given. The evidence points unmistakably to negligence in this respect. The delay of five years until the death of R. P. Linderman was not justified. And the conduct of Mrs. Skeer in making no investigation at that time, and in proceeding to give another power of attorney to a brother of R. P. Linderman, and in permitting him to continue for years the same careless and unbusinesslike course of procedure, without requiring any security, and without compelling prompt, or reasonable settlements at his hands, can only be properly characterized as gross negligence upon the part of the administratrix. The record discloses nothing which affords any adequate excuse for a delay of nine years in securing to the estate the amount of its interest in a business which was in course of settlement, and whose assets were admittedly good, and whose conversion called for nothing but the exercise of reasonable business caution and activity. We are convinced that the failure of the administratrix to exercise common skill, common prudence, and ordinary business caution resulted in the loss of the interest of the estate, in the assets of the firm of Linderman & Skeer. To the extent of the value of this interest, which the administratrix failed to collect, and which was lost through the defalcation of her agent and attorney in fact, Garret B. Linderman, the administratrix must be surcharged.

The fourth, fifth, sixth, ninth, twelfth, fourteenth, fifteenth, sixteenth and twenty-second assignments of error are sustained. The decree of the Orphans’ Court is reversed, and the record is remitted for further proceedings in accordance with this opinion.


source: Caselaw Access Project

author: Me. Justice Elkin,

license: Public Domain

text:
    Commonwealth v. Johnson, Appellant.

      Courts — Judges — Assignment of judges from other districts— Act of April 27,1911, P. L. 101 — Criminal law — ■Murder.
    1. Under the Act of April 27, 1911, P. L. 101, judges who have been summoned from other counties to “specially preside” in Philadelphia county, in accordance with a request of a Court of Common Pleas of Philadelphia County, may preside at a murder trial in a Court of Oyer and Terminer, and may sit in banc in ¡such court to pass upon a motion for a new trial in a murder case.

      2. The words “detail one or more of their judges” used' in Section 8, Art. Y, of the Constitution includes judges called in from other districts to specially preside.
    3. When a judge from another district has been assigned to a Court of Common Pleas of Philadelphia County, he is to all intents and purposes one of the judges of that county for the term in which he is specially presiding.
    4. Nothing less than an imperative case will justify the courts in disregarding an act of the legislature at the expense of throwing open the jails and turning loose upon the community the malefactors convicted in a course of years.
    Mr. Justice Brown and Mr. Justice Stewart, dissent.
    Argued March 18, 1912.
    Appeal, No. 93, Jan. T., 1912, by defendant, from judgment-of O. & T., Phila. Co., Sept. T., 1911, No. 568, in verdict of guilty of murder of the first degree in case of Commonwealth v. Arnie Johnson.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Stewart, P. J., specially presiding.
    At the trial the jury returned a verdict of guilty of murder of the first degree, upon which sentence was passed. Defendant appealed.

      Errors assigned were as follows:
    1. That no court of criminal jurisdiction was legally constituted in the trial, conviction and sentence of the said Arnie Johnson.
    2. That the detail, by a majority of the judges of the Court of Common Pleas No. 1, of Philadelphia County, of Hon. Russell C. Stewart, commissioned as a judge of the third judicial district, comprising Northampton county, to hold a court of Oyer and Terminer in Philadelphia county, comprising the first judicial district, was in violation of Article V, Section 8, of the Constitution of Pennsylvania, which provides as follows;

      "The said courts in the counties of Philadelphia and Allegheny, respectively, shall, from time to time, in turn, detail one or more of their Judges to hold the Courts of Oyer and Terminer and the Courts of Quarter Sessions of the Peace of said Counties, in such manner as may be directed by law.”
    3. The Hon. Russell C. Stewart, not holding a commission for the first judicial district, it was contrary to the provisions of the Constitution of Pennsylvania to detail him to hold a court of Oyer and Terminer in the county of Philadelphia.
    4. The Hon. Russell C. Stewart could not legally preside at the trial and impose sentence upon the prisoner, Arnie Johnson, in the court of Oyer and Terminer of the county of Philadelphia.
    5. The Hon. Russell C. Stewart and the Hon. Horace Heydt, not being commissioned as judges for the county of Philadelphia, did not, with the Hon. W. Wilkins Carr, legally constitute a court to hear and pass upon the motion made upon behalf of the prisoner for a new trial.
    6. The learned court erred in imposing the sentence.

      Charles B. Joy, with him John C. Hinckley, for appellant.
    The presiding judge was not qualified: Kensington & Oxford Turnpike Road Co., 12 Phila. 611; Myers v. Com., 79 Pa. 308; Com. v. Bell, 4 Pa. Superior Ct. 187; Com. v. Dunlevy, 16 Pa. Superior Ct. 380; Com. v. Scouton, 20 Pa. Superior Ct. 503; Quay’s Petition, 189 Pa. 517; Campbell v. Com., 96 Pa. 344; Morgan v. Reel, 213 Pa. 81; Com. v. Collom, 1 Pa. Superior Ct. 542.

      Joseph P. Rogers, Assistant District Attorney, with him Samuel P. Rotan, District Attorney, for appellee,
    cited: President Judges of the Eighth and Tenth Districts Application, 64 Pa. 33; Kilpatrick v. Com., 31 Pa. 198; Morgan v. Reel, 213 Pa. 81.

      May 13, 1912:
   Opinion by

Me. Justice Elkin,

The question, for decision here is within narrow limits. The defendant, after a fair trial in the court below, was convicted of murder of the first degree and sentenced to death. His contentions here are; that the trial judge had no constitutional right to preside in the Court of Oyer and Terminer of Philadelphia County; that the court in banc which passed on his case was not constituted as the constitution requires; and that the entire proceedings are void because coram non judice. Judge Stewart of the third judicial district, comprising the county of Northampton, presided at the trial; and the trial judge with Judge Heydt of the fifty-sixth judicial district, and Judge Caee of the first district, sat as a court in banc to pass upon the motion for a new trial. The judges from other districts were assigned in strict compliance with the provisions of the Act of April 27, 1911, P. L. 101. A majority of the judges of Court of Common Pleas No. l-of Philadelphia County, being of the opinion that it was necessary for the purpose, of expediting the business of that court, transmitted a request in writing to the prothonotary of the Supreme Court, asking that Judge Stewaet be assigned to specially preside in their court, and he responded to the call by reporting for duty.

It should be observed that the act requires the responding judge to be assigned “to specially preside in the district from which the call has come, for the purpose of transacting the business thereof,” and in the discharge of his duties when so assigned he shall have “the same power and authority as vested in the judge or judges of said district.” The act deals solely and alone with law judges of the courts of common pleas and does not mention courts of quarter sessions or of oyer and terminer. The call must be made by a law judge, or law judges, as the case may be, of the court of common pleas, and it must be responded to by a law judge of the court of common pleas in another district. When the responding judge reports for duty in the district to which he is assigned, he is clothed with all the powers of a common pleas judge in the court to which he is called. It is so provided in the Act of 1911, but independently of the act, this has been the settled law of the Commonwealth for more than fifty years. When, therefore, Judge Stewart responded to the call it was as a law judge of another district to sit in Court of Common Pleas No. 1, of Philadelphia County. He was then detailed to preside as a trial judge in the court of oyer and terminer in which defendant was tried. Prior to the adoption of the new Constitution, it had been decided by the Supreme Court that a judge called in from another district to preside in the court of common pleas in the district to which he was called, has jurisdiction and authority to hear and try all causes pending at that term in any of the courts, civil or criminal, including capital and other felonies: President Judges of the Eighth and Tenth Districts Application, 64 Pa. 33. To the same effect are: Com. v. Zephon, 8 W. & S. 382; Pennsylvania Hall, 5 Pa. 204; Kilpatrick v. Com., 31 Pa. 198. The only question that can arise here is whether this settled practice under the law as decided in these cases has been altered or changed by our present constitution. It is strongly urged that section eight of article five has this effect. It is as follows: “The said courts in the counties of Philadelphia and Allegheny, respectively, shall, from time to time, in turn, detail one or more of their judges to hold the courts of oyer and terminer and the courts of quarter sessions of the peace of said counties, in such manner as may be directed by law.” It is argued that the phrase “detail one or more of their judges” means one or more of the judges regularly elected, or appointed, to the Common Pleas of Philadelphia County, and that it does not include a judge called in from another district to spedaily preside. To give these words such a restricted meaning would he in disregard of the settled practice under the law at the time the new Constitution went into effect and the practice almost universally recognized since that time. No convincing reason has been suggested for thus restricting the meaning of this language. When a judge from another district has been assigned to the Court of Common Pleas of Philadelphia County, he is to all intents and purposes one of the judges of that county for the term in which he is specially presiding. The section of the Constitution in question relating to the assignment of judges to hold the criminal courts provides that the detail is to be made “in such manner as may be directed by law,” and the plain inference is that the manner and method of making the detail are the subject of legislative regulation. The Act of 1911 prescribes the manner .by which judges from other districts may be called in for the purpose of expediting the business of the courts, and when a judge is so called in he is vested with "all the power and authority of a judge in the district to which he is called to preside. One of these powers is to hold the court of oyer and terminer, and the judge called in being vested with the same power must be considered one of their number during the term in which he is so presiding. This construction is neither new nor strained. It is true that we have not been called upon heretofore to construe the particular section of the Constitution relied on by appellant in this case, but the principle underlying all the cases to which reference has been made, and others not cited, sustains the interpretation we now give to these words. If a judge of the Court of Common Pleas of Philadelphia County were called to preside in the Court of Common Pleas of Northampton County, he would be vested with the authority and power to sit as a trial judge in the oyer and terminer of that county. This has long been the settled law of the Commonwealth and it is difficult to see why a judge of Northampton county, sitting in Philadelphia county, should not be vested with the same power. If the contention of appellant be sustained it will have the effect of making Philadelphia and Allegheny counties exceptions to the rule applicable to every other county of the Commonwealth. It is suggested that section eight of article five of the Constitution makes these counties exceptions, and that the framers of the organic law intended the criminal courts in these counties to be presided over by the judges elected by the people of those districts. We cannot regard this as the proper view to take of this section. In a recent case this court, speaking through Chief Justice Mitchell,, in discussing the question whether judges required to be learned in the law have the power to sit in courts other than those to which they were elected, said: “But the historical view of the constitutional provisions on the subject, and the uniform course of decisions under them have clearly settled the principles we must now apply”: Morgan v. Reel, 213 Pa. 81. We there held that the elective clause of the Constitution did not limit the exercise of the power of judges to the courts in which they were elected to preside, but that the legislature could authorize and empower a judge elected to preside in one court to sit in another court. Courts of oyer and terminer and of quarter sessions in Philadelphia county are to be constituted by detailing judges of the common pleas from time to time to hold such courts. The manner of designating judges for this purpose and of making the detail is a regulation entirely within the scope of legislative and judicial control. When a judge from another district is called to preside in the Common Pleas of Philadelphia County, he becomes a judge in that county during the time he is so acting, and may be detailed to hold the court of oyer and terminer in the same manner as a local judge.

The effect of sustaining the contention of appellant would be to open the prison doors for the escape of criminals convicted in the courts of Philadelphia and Allegheny counties since the adoption of the Constitution, in all cases in which a judge from another district presided at the trial. Nothing but imperative necessity would justify a court in reaching such a conclusion. As was said by Mr. Justice Strong, in Kilpatrick v. Com., supra: “Nothing less than an imperative case would justify us in disregarding an act of the legislature at the expense of throwing open the jails and turning loose upon the community the malefactors convicted in a course of years.” There is no such necessity in the case at bar, and the interpretation we give the constitutional provision relating to Philadelphia and Allegheny counties entirely avoids such a result. It not only, avoids such serious consequences, but it is in accord with the trend of all our decisions.

Judgment affirmed, and record remitted for the purpose of having the sentence executed according to law.

Brown and Stewart, JJ., dissent.


author: Mr. Justice Potter,

text:
    Stanton v. Philadelphia & Reading Railway Co., Appellant.

      Practice G. P. — Affidavit of defense — Action ex contractu— Tort.

    1. In an action of assumpsit to recover the value of a large quantity of celery which the defendant accepted for storage at its cold storage warehouse, and permitted to freeze and spoil, an affidavit of defense must be filed by the defendant where the plaintiff’s statement of claim avers that “the defendant agreed to and with the plaintiff to use all reasonable, proper, ordinary and customary means for the preservation and care of the said celery, and maintain a temperature in the room or rooms in which it was stored, which would protect it against freezing,” and that it failed to comply with its agreement.

      2. In such a case the proper action is in assumpsit. The fact that the breach of the contract occurred through negligence which was tortious in its character makes no difference; nor is the doctrine of waiver of tort involved, inasmuch as the defendant made no profit for itself out of its wrongful acts.
    Argued March 19, 1912.
    Appeal, No. 96, Jan. T., 1912, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1911, No. 2445, making absolute rule for judgment for want of a sufficient affidavit of defense.
    Before Fell, C. J., Briown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the value of a quantity of celery accepted by the defendant for cold storage.
    The opinion of the Supreme Court states the case.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Abraham M. Beitler, with him Edward Hoplcinson, Jr., and William J. Graham, for appellant.
    Upon a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense, the court must not only decide that the cause of action is such as requires an affidavit of defense, but also that the plaintiff’s statement discloses a good cause of action for the amount claimed: Fritz v. Hathaway, 135 Pa. 274; Byrne v. Hayden, 124 Pa. 170; Smith v. Seward, 3 Pa. 342; Kinney v. Harrison Mfg. & Boiler Co., 22 Pa. Super. Ct. 601.
    Under the practice before the Act of May 25, 1887, the actions of assumpsit to which the affidavit of defense law applied were limited to those founded on contract alone: Reznor v. Supplee, 81 Pa. 180; Borlin v. Com., 99 Pa. 42.
    The Act of May 25, 1887, P. L. 271, did not extend the class of cases in which judgment might he taken for want of an affidavit of defense: Osborn v. Bank, 154 Pa. 134; Corry v. R. R. Co., 194 Pa. 516.
    May 13, 1912:
    An affidavit of defense is not required in those actions of assumpsit where the cause of action is ex delicto or of a mixed character containing an element of contract and an element of tort: Krause v. Penna. R. R. Co., 20 W. N. C. 111; Brady v. Engineering Co., 132 Fed. Repr., 412; Kinney v. Mitchell, 136 Fed. Repr. 773; Holland v. Iron Works, 9 Pa. Super. Ct. 261; Wood v. Virginia Hot Springs, 202 Pa. 40; United Collieries Co. v. R. R. Co., 11 Pa. D. R. 300; Com. v. Miles, 16 Pa. D. R. 161; Dulaney v. Hoosac Tunnel Fast Freight Line, 30 Pa. C. C. R. 606; Cosgrove v. R. R. Co., 32 Pa. C. C. R. 240.

      Charles E. Edmunds, for appellee.
    Assumpsit was the proper remedy: Livingston v. Cox, 6 Pa. 360; Reilly v. White, 234 Pa. 115; Smith v. Smith, 166 Pa. 563; Ludwig v. Meyre, 5 W. & S. 435; Hill v. Humphreys, 5 W. & S. 123; Smith v. Seward, 3 Pa. 342; Buck v. Penna. R. R. Co., 150 Pa. 170; Murphy v. Thall, 17 Pa. Super. Ct. 500; Zell v. Dunkle, 156 Pa. 353.
   Opinion by

Mr. Justice Potter,

The question that meets us upon the threshold of this appeal is whether the suit was properly brought in assumpsit, or whether the form of action should have been trespass, to recover damages for a tort. The basis of liability upon the part of the defendant company as disclosed by the statement of claim, was its failure to take proper care of a quantity of celery deposited in its cold storage warehouse by the plaintiff. It is averred that the plaintiff delivered to the defendant company 3,651 crates of celery for the purpose of having it kept in cold storage for his benefit, he then and there agreeing to pay the usual, customary and proper charges therefor. That at the time the said celery was placed with the defendant, it was in first class condition, and was received as such. That it thereupon became the duty of defendant to take reasonable and proper care of the celery, and to prevent the temperature of the room where it was stored from falling to a point which would cause the celery to freeze; and it is further averred that the defendant company agreed with plaintiff that it would exercise such care. It is charged that the defendant failed to comply with its agreement, but on the contrary, stored and packed the celery in a careless and negligent manner, so that it was damaged by foul and contaminating odors, and by freezing, and part of it became worthless and unmarketable. It is also averred that if the said celery had been maintained by the said defendant in the way and manner it had contracted to do, the celery would have been as good and marketable as when delivered to it. Plaintiff charges that his losses on the celery were caused by the failure of"the defendant to store, pack and maintain the celery as it agreed to do, and that these losses amounted to the sum of $5,-257.24, as shown by an itemized statement attached. This sum, less the storage charges, he claimed the right to recover from- defendant. A rule to file an affidavit of defense was entered, and in response thereto, counsel for defendant filed a paper which did not deny any of the averments of the statement, or set forth any defense to the claim of plaintiff, but merely suggested that as the claim was founded on negligence, no affidavit of defense was required. A rule for judgment for want of a sufficient affidavit of defense was then entered by plaintiff, which was afterwards made absolute by the court, who said: “We are of opinion that the allegations in the statement, ‘the defendant company then and there agreed to and with the plaintiff to use all reasonable, proper, ordinary and customary means for the preservation and care of the said celery, and maintain a temperature in the room or rooms in which it was stored which would protect it against freezing’ make this proceeding a suit for breach of contract, exactly the same as a breach of contract to furnish goods that had been agreed to be furnished. The damages in both instances áre measured by well known and easily ascertained rules. Rule absolute.” The defendant has appealed and its counsel have assigned as error the entry of judgment against it.

It is clear that the legal wrong with which the defendant is charged is the breach of a contract. The plaintiff seeks to hold it responsible for the consequences of its failure to perform certain acts in the wáy in which it is alleged it agreed to perform them. The source of the obligation resting upon the defendant is the contract which is alleged to be broken. Therefore assumpsit was the proper form of action to pursue in seeking a remedy. The fact that the breach of the contract occurred through negligence which was tortious in its character makes no difference. As far back as Livingston v. Cox, 6 Pa. 360, it was held that an action upon the contract would be sustained, although tortious negligence was set out in the narr. That case was an action of assumpsit against an attorney-at-law, to recover for loss occasioned by his negligence in prosecuting a claim. In the opinion Mr. Justice Bell cites with approval the doctrine of Hunt v. Wynn, 6 Watts 47, which, as he says, “recognizes that wherever the violated duty necessarily springs from contract alone, the action is quasi ex contractu, though the gravamen is laid in tortious negligence, or breach of duty by positive and express tort.” In the case of Conn v. Stumm, 31 Pa. 14, it was held that where one undertakes to perform work for another the law implies a contract to do it with care and skill, and that an action of assumpsit for the breach of such a contract will lie. And in Reeside v. Reeside, 49 Pa. 322, 331, Mr. Justice Agnew said: “There is no doubt, where a duty arises out of an implied undertaking to do an act requiring skill or fidelity, that a breach of the duty may be the subject of an action of assumpsit upon the implied promise, or of an action upon the special case for the tort.”. This language was quoted with approval by Mr. Justice Brown in Ms opinion in Graham v. Cummings, 208 Pa. 516, 534. The same principle was again upheld in Zell v. Dunkle, 156 Pa. 353, and in Eckert v. Penna. R. R., 211 Pa. 267. In the late case of Reilly v. White, 234 Pa. 115, assumpsit was brought to recover a balance due upon a contract, and an additional sum for damages for breach of the contract on the part of the defendant, and we held that assumpsit was the proper form of action, and that an affidavit of defense was required.

We cannot agree with the suggestion of counsel for appellant that claims for two kinds of damages are here combined in one action. The plaintiff is concerned only with the consequences of the defendant’s omission to do that which it agreed to do. In the statement of claim a contract is set forth, and its breach is averred, and upon that breach alone is based the right of plaintiff to recover.

The doctrine of waiver of tort is not here involved, as it was not necessary to invoke that principle. Indeed, it could not properly be applied to the facts of this case, for the reason that the defendant here made no profit for itself out of its wrongful acts. It is only where one, in the commission of a tort, makes a profit out of the unlawful act, that the injured party may, instead of suing in tort to recover damages for the injury, sue in assumpsit to recover the value of that which has wrongfully been taken or used. It is not sufficient that the plaintiff has been injured. It must also appear that the defendant has made a profit. If the claim of the plaintiff is merely to recover damages for the injury, his sole remedy is in tort. The doctrine of waiver of tort, in so far as this feature is involved, is thus stated by Lord Mansfield in Hambly v. Trott, 1 Cowp. 371: “If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating or imprisoning a man, etc., there the person injured has only a reparation for the delictum in damages to be assessed by a jury. But where, beside the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As, for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man’s trees, but for the benefit arising to his testator for the value or sale of the trees he shall.” The underlying principle is, that where there is gain to the tort feasor, you can sue in quasi-contract. Where the wrong results in no such profit, the remedy is in tort only. See Bethlehem Boro. v. Fire Co., 81 Pa. 445, and cases there cited.

In the present case if the plaintiff had not averred and relied upon a contract which was broken, he would have been confined to his remedy in trespass, as no profit or advantage accrued to the defendant from the wrong which was done. But, as the basis of the plaintiff’s claim was the breach of a contract, the action was rightfully brought in assumpsit, and he was entitled, under the provisions of the Act of May 25, 1887, P. L. 271, to judgment for want of an affidavit of defense, or for want of a sufficient affidavit. The case of Corry v. Penna. R. R. Co., 194 Pa. 516, is cited to sustain the argument that no affidavit of defense is required. That case was, however, decided on the ground that there was no contractual relation between the parties. The suit was brought to recover damages for the loss of the contents of a trunk which had been sent out to the railroad station by a hackman, and was alleged to have been robbed while awaiting the arrival of the owner. In the opinion it is pointed out that at the time the articles were taken, the owner had not become a passenger, and that the company never did undertake to carry her and her missing baggage to her destination. It was considered that the only cause of action which she could have had was the negligent and careless keeping of the trunk before she became a passenger, and that was clearly a case of tort, if anything. The case of Osborn v. Bank, 154 Pa. 134, also cited by appellant, was an action to recover a statutory penalty, and there was no element of contract in the case. In Bartoe v. Guckert, 158 Pa. 124, the action was also one for the recovery of a statutory penalty.

In the argument, the statement of claim was subjected to various criticisms as to its sufficiency. These objections do not appear to have been suggested in the court below, nor to have been considered by it. We are not convinced that there is any substantial merit in any of them. The statement of claim sets forth a good cause of action, and is self-sustaining. It is due to the counsel who argued this appeal, to say that they did not have charge of the case in the court below, and are not responsible for the way in which the issue there presented was met.

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


author: Pee Cueiam,

text:
    Brophy, Appellant, v. Cleveland Township.

      Road law — Township roads — Maintenance of road.

    A township in a rural district is under no duty to keep its roads for the full width at which they are laid out, smooth, and safe and convenient for public travel. The rule applicable to streets in towns and cities does not apply to roads in the rural districts.
    Argued April 8, 1912.
    Appeal, No. 251, Jan. T., 1911, by plaintiff, from judgment of C. P. Columbia Co., Feb. T., 1910, No. 24, on verdict for defendant in case of John Brophy v. Cleveland Township.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, P. J.

      At the trial it*appeared that the plaintiff was injured on May 12,1909, while driving along one of the township roads. He claimed that his injuries were due to the fact that the township had not maintained a proper guardrail along an embankment. The evidence for the de: fendant, although to some extent contradicted, tended to show that the road at the place of the accident was smooth, level and of sufficient width, and in a reasonably safe condition for ordinary public travel.
    The court charged in part as follows:
    “Streets and sidewalks in the built-up portions of towns and cities must be kept in a reasonably safe condition for public travel over their entire width, but this has never been held to be the rule as regards country roads. They are seldom, if ever, kept open and in repair from side to side. A sufficient portion thereof, usually in the center, sometimes at one side only, is kept in a smooth condition and safe and convenient for travel. The rest is often left dangerous by reason of ditches and obstructions of various kinds. The rule applicable to streets and sidewalks in cities and towns has never been applied to country roads and cannot be without serious injustice to the rural portions of the state. If it were required by law to open all township roads for the full width to which they have been laid out and to keep the entire width thereof in a smooth condition and safe and convenient for ordinary public travel, it would impose an unreasonable and undue burden upon many of the townships throughout the county.”
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was portion of charge as above, quoting it.

      Fred Ikeler, for appellant.

      C. E. Kreisher and W. E. Rhawn, for appellee.

      May 13, 1912:
   Pee Cueiam,

The defendant was charged with negligence in failing to maintain a guard rail at the side of a township road in a rural district. The condition and width of the road and the topography of the land on its lower side, were matters of dispute at the trial. The witnesses, however, agreed that there was a smooth, level driveway, from twelve to sixteen feet in width between a bank on one side and a declivity on the other. The case was submitted to the jury with the instruction that it is the duty of township supervisors to keep the public roads at all times in reasonably safe condition for ordinary travel; to erect guard rails where they are required to insure safety and to remove obstructions and remedy defects that would naturally or probably cause injury and that a failure to do so is negligence for which a township is liable, but that a township in a rural district is under no duty to keep its roads for the full width at which they are laid out, smooth and safe and convenient for public travel, that they are seldom, if ever, kept open and in repair from side to side, and that the rule applicable to streets in towns and cities does not apply to roads in rural districts. This instruction is fully sustained by the decisions in Monongahela v. Fischer, 111 Pa. 9; Wall v. Pittsburgh, 205 Pa. 48; Emery v. Philadelphia, 208 Pa. 492, and other cases, and is not open to the objection urged in support of the only assignment of error that is insisted upon, that the jury was led to infer that dangers within the road as laid out, but outside of the traveled part, need not be guarded against.

The judgment is affirmed.


author: Per Curiam,

text:
    Ike’s Estate.

      Executors and administrators — Promissory notes — Issue to determine validity of notes held by administrator.

    1. Where at the audit of an administrator’s account he presents notes to his own order made by the decedent, the validity of which is denied by other parties in interest, and an issue demanded, the grant of the issue is not of right but is a matter within the discretion of the Court.

      Auditors — Findings of fact — Promissory notes — Evidence.
    2. An auditor’s finding of fact based upon sufficient evidence and affirmed by the Orphans’ Court that certain promissory notes were valid and just claims against the estate of a decedent, will not be reversed by the appellate court in the absence of manifest error.
    Argued April 15, 1912.
    May 13, 1912:
    Appeal, No. 195, Jan. T., 1911, by Emma G. Ike, from decree of O. O. Blair Co., No. 463, of 1901, dismissing exceptions to auditor’s report and in refusing to award an issue.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschziskbr, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    The opinion of the Supreme Court states the case.

      Errors assigned were (1) refusing to award an issue and (2-6) in overruling exceptions to auditor’s report.

      Thomas H. Greeny and E. G. Brotherlin, for appellants.

      H. H. Waite, with him Charles Geesey, for appellees.
   Per Curiam,

The assignments of error relate to the refusal of the court to award an issue to determine the validity of notes on which the administrator claimed to recover from the decedent’s estate and to the confirmation of the report of the auditor allowing the claim. The right to an issue, under the facts shown, was considered by this court on an appeal by the same appellant, in a proceeding that grew out of the application by the administrator for an order to sell the real estate of the decedent for the payment of debts. In dismissing the appeal it was said, “The issue asked for was not of right but depended upon the discretion of the court under the facts as developed: Kates’s Estate, 148 Pa. 471. . There was not only no abuse of this discretion but in our judgment, upon a review of the whole record, a proper exercise of it.” See Ike’s Estate, 200 Pa. 202. At the hearing before the auditor, the only testimony presented was that which, on the former application, had been adjudged insufficient by the Orphans’ Court and by this court.

Whether the notes were valid obligations of the decedent was purely a question of fact, and the finding of the auditor, affirmed by the court, will not be set aside.

The order is affirmed at the cost of the appellant.


text:
    Green v. Hollidaysburg, Appellant.

      Negligence — Boroughs — Icy sidewállcs — Contributory negligence.

    1. A municipality is not liable for an injury caused by the slippery condition of a pavement resulting from natural causes such as the recent formation of ice, but it may be held liable where ridges of ice are allowed to form and remain for an unreasonable time after notice actual or constructive.
    2. In an action by a woman against a borough to recover damages for personal injuries sustained from a fall at night on an icy pavement on a street of the borough, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where the evidence showed that the plaintiff fell on a ridge of ice from four to six inches high, extending across the pavement from house line to curb and somewhat obscured by a slight fall of snow; that the condition had existed for several weeks, although not known to the plaintiff because she had not been on the street for a week; that snow was piled up at the edge of the pavement to such a height as to make it difficult to go into the street; and that plaintifE assumed, as she wore good rubbers, she could walk with safety close to the curb where the ridges of ice were lower.
    Argued April 15, 1912.
    May 13, 1912:
    Appeal, No. 121, Jan. T., 1911, by defendant, from judgment of C. P. Blair Co., March T., 1911, No. 129, on verdict for plaintiff in case of Teresa Green v. Hollidaysburg Borough.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.. Before Shull, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for the plaintiff for $1,551.94. Defendant appealed.

      Errors assigned were various instructions, quoting them.

      Marion D. Patterson, with him George G. Patterson, for appellant.

      E. G. Brotherlin, with him Thomas H. Greevy, for appellee.
   Per Curiam,

The plaintiff, a woman sixty-eight years of age, was injured by a fall at night on an icy pavement on the main street of the borough, defendant. The only question to be considered is whether her testimony made out a case of negligence on the part of the borough, free of contributory negligence, which entitled her to go to the jury. The pavement was clear of ice except at the place of the accident, where water from a rain spout ran onto the pavement and froze in ridges from four to six inches high, that extended across the pavement from the house line to the curb. This condition had existed for several weeks. She knew that ice had formed at this place during the winter but had no knowledge of the actual condition at the time, not having been on the street for a week, until she reached the ridges of ice that were somewhat obscured by a slight fall of snow. Snow was piled up at the edge of the pavement to such a height as to make it difficult to go into the street, and she assumed that, as she wore good rubbers, she could walk with safety close to the curb, where the ridges of ice were lower.

A municipality is not liable for an injury caused by the slippery condition of a pavement, resulting from natural causes such as the recent formation of ice, but it may be held liable where ridges of ice are allowed to form and remain for an unreasonable time after notice actual or constructive. Wyman v. Philadelphia, 175 Pa. 117; Dean v. New Castle, 201 Pa. 51; Holbert v. Philadelphia, 221 Pa. 266. The plaintiff’s testimony disclosed no facts that would conclusively charge her with contributory negligence. She was confronted by a danger, which she could not readily avoid, the extent of which was not obvious to her and she believed that with the exercise of care she could pass in safety. “It is not necessarily negligence to attempt to pass over even a noticeable accumulation of ice on the pavement, that may depend on the size and shape of the accumulation, the obviousness and magnitude of the danger, the means at hand of avoiding it, and other circumstances.” Brown v. White, 206 Pa. 106.

The judgment is affirmed.


text:
    Hoyt’s Estate.

      Life estate — Remainderman — Improvements.
    1. Where a testator appoints his wife and a daughter executors of his estate, and gives to his wife all his real and personal property for life, and it appears that the principal real asset wa3 a licensed hotel property, and the principal personal asset shares of stock of a corporation, and that the total income was not more than sufficient to support the wife, an elderly woman, comfortably, the representative of the widow, and the daughter, cannot be surcharged after the widow’s death with the whole of the proceeds of the shares of stock which had been used for repairs to the hotel property, absolutely necessary to maintain the property and preserve its license.

      Wills — Construction — Devise—Legacy.
    2. Testator gave all his real and personal property to his wife for life. He then directed as follows: “After her death all my property I want sold and the money divided among my heirs equally if E. (a daughter) stays at home and takes good care of her mother I give her the house we now live in furnished as it is for her share of my estate.” Held, from a proper construction of the will, and without considering extrinsic evidence as to the respective values of the house and the residuary estate, that the daughter was entitled not only to the house specifically devised to her, but also to a share in the residuary estate.
    Argued April 16, 1912.
    Appeal, No. 40, Jan. T., 1912, by Wm. T. S. Hoyt, et al., from judgment of Superior Court, Oct. T., 1911, No. 214, affirming decree of O. C. Clearfield Co., No. 3250, sustaining exceptions to auditor’s report in Estate of Milo Hoyt.
    Before Fell, C. J., Mestrezat, Elkin, Stewaet and Moschzisker, JJ.
    Affirmed.
    Appeal from judgment of tbe Superior Court.
    In tbe Orphans’ Court A. O. Smith, P. J., filed the following opinion:
    The first exception is to the action of the auditor in surcharging accountants with $1,111.71 for which credit was claimed in the account filed as expenditures by Sarah Hoyt, deceased, executrix aud life tenant, for permanent improvements and additions to the real estate of the decedent. The learned auditor surcharges accountant with said sum on the ground that no authority was given the life tenant by the remaindermen for making those improvements, although he finds as a fact that they were made necessary “in order to make the property suitable as a hotel property and also the changes about the bar and bar room were necessary in order to comply with the rulings of the court.” No authority is cited to sustain his position that no part of these improvements are chargeable to the estate or against the remaindermen. The auditor contents himself with the statement that “there was no authority in law under the will or from the remaining heirs for such an improvement, and in the absence of such your auditor finds that this item can not be a charge against the estate.” The learned auditor also fails to set out fully his findings of fact relating thereto. From the papers in the case the evidence offered we believe the following facts are shown and are necessary to a determination of the legal question involved.
    First: That by the will of Milo Hoyt, deceased, his widow, Sarah Hoyt, was entitled to the entire income of both real and personal estate, among which and as the principal asset of the estate was a hotel property valued at his death at fifteen thousand dollars.
    Second: That the life tenant’s income from the entire estate was about twelve hundred dollars gross per annum, and forty dollars per month or four hundred and eight dollars net per annum.
    Third: That the parties, as executors, treated the interest of the widow, Sarah Hoyt, as life estate and she handled the property from the death of her husband, in 1896, until her own death, in 1907, as a life interest, without interference from either her co-executor, her son Allen, who died in 1903, or from her other co-executrix, the accountant, Edna Y. Williams, who survived her at her death October 19, 1907. That during her life tenancy, and in 1904, because of demands made upon her for improvements by the tenant of the hotel property required at the instance of the court granting the license, she made certain improvements and betterments to the hotel property, as follows: Steam heat plant, $696.27; improvement on bar room, $277.90; outside flue, $46.75; ice house, $90.00; packing and shipping of bar, $2.80. That these improvements so made were necessary in order to secure a continuance of the license of the property and in order to obtain the rental of sixty dollars per month. That they were permanent in character and enhanced the value of his estate to the remaindermen.
    Fourth: That Sarah Hoyt, the life tenant, was 65 years of age when Milo Hoyt died in 1896, and was therefore 73 years of age when these improvements were made, three years before her death in 1907.
    Fifth: That to have made said improvements at her own expense would have taken practically her entire net income from the time when made in 1904, until her death and left her nothing for maintenance.
    Sixth: That among the personal property of Milo Hoyt, deceased, the life tenancy in which was bequeathed to Sara Hoyt, were forty-one shares of Osceola Water Supply Company stock. That in order to make the improvements above mentioned the said Sarah Hoyt used the said forty-one shares of Osceola Water Supply Company stock as a collateral security for a loan from the First National Bank of the amount of $1,111.71, and the said loan remained in that shape until after her death, when the water stock was sold by Edna Y. Williams, surviving executrix, and the loan paid off and credit claimed by said accountant for said sum in her partial account filed, which credit became the subject of an exception and was disallowed by the learned auditor.
    Seventh: That there is nothing in the testimony to show that any portion of the said $1,111.71 was used by the present accountant or wasted in any way by her, but was used as aforesaid by the life tenant, Sarah Hoyij as an improvement and betterment of the hotel property, one of principal assets of the estate, from which she was to derive an income as the principal object of testator’s bounty.
    Under these facts should this accountant or her deceased co-executrix Sarah Hoyt’s estate, be surcharged with the said sum? It is manifestly a great injustice to the accountant and would moreover be a great injustice to the estate of Sarah Hoyt if that estate were surcharged, although there is nothing in the testimony to show that it is worth anything. The learned auditor seemed to think that this money could be properly expended by the life tenant under the law of this state, without authority so to do from the remaindermen. We do not think this is the law and no authority to sustain such a position has been brought to our attention by the counsel for the remaindermen, except Datesman’s Appeal, 127 Pa. 348, in which dictum appears at the bottom of page 359 as follows: “There was nothing to show that the improvements were made with the consent of the remaindermen and it is settled law that the life tenant cannot of his own motion improve the remaindermen out of their estate. Where the latter consent to improvements for the mutual benefit of the joint estate and the property is afterwards sold to promote the interests of both, equity would perhaps allow the life tenant a reasonable compensation for the value of the improvements.” In the same connection and in the same opinion it would appear that the improvements and repairs made were of a trifling nature, so much so as not to be included in any finding of fact by the auditor. In that case the money for distribution was proceeds of a sheriff’s sale of the entire estate in lands and the claim of the life tenant was for repairs and improvements made, but of such trifling and unimportant character that that would seem to be the real ground of refusal of the claim,

      In this' estate the improvements made are all of a permanent character and enhanced the value of the estate, both to the life tenant and to the remaindermen. Neither could it be said to have in any way “improved the remaindermen out of their estate.” The hotel property was valued at fifteen thousand dollars at the death of Milo Hoyt. It is apparent that the improvements to an amount expended of $1,100.00 was not taking anything from the remaindermen but to keep the estate in such condition as to make it of like value when possession came to them-. In Griffith’s Estate, 12 Pa. C. C. R. 614, the entire amount of the betterment were charged to the remaindermen, the life tenant being 70 years of age. Betterments and improvements of a permanent nature are sometimes apportioned between the life tenant and remaindermen, as in Baker v. Esbin, 1 Chester County, 293; Davenport’s Estate, 10 Pa. D. R. 12Í. Permanent improvements such as sewer attached to house, are chargeable to remaindermen, as in .Van Dusen’s Estate, 1 Pa. D. R. 156; Tragbar’s Estate, 2 Pa. D. R. 407; Bradley’s Estate, 3 Pa. D. R. 359.
    Under the circumstances in this case it is clearly equitable that the burden of these improvements should be sustained by the remaindermen. The widow and life tenant was the principal object of the testator’s bounty. To have her pay for these improvements would have left her without income at the close of her life when helpless and most in need of income. To surcharge this account with said sum would be manifestly inequitable and unjust. There is no allegation that she had the money or could have used it in any way. She was in fact the second principal object of testator’s bounty. As the youngest and favored child at home the will of decedent shows that she was charged with the burden of attendance upon her mother in her old age. The Orphans’ Court is a court of equity and seeks to do justice. The injustice and inequity of a surcharge against the accountant, Edna V. Williams, under the whole circumstances of this case, are so flagrantly obvious that it is hard to understand how the brothers and sisters of the accountant could bring themselves to maintain such a position, even though the law might favor them.
    As we look at it, neither the law nor the facts sustain the surcharge and the exception is therefore sustained.
    The fourth exception relates to the report of the auditor in failing to distribute to Edna V. Williams one-eighth of the net balance for distribution, “she claiming as a daughter of the decedent to share in general bequest of the decedent to all of his heirs equally.” The will of Milo Hoyt, deceased, is drawn in his own hand writing. He was not an educated man and his will is inartificially drawn, is without proper grammatical expression and punctuation. To understand the controversy relating to this exception the will is quoted verbatim as follows:
    “Osceola, Clearfield Co., Pennsylvania, July 7,1893.
    I make
    this my last will
    I give and devise and bequeath my estate and property both real estate and persona-to my wife Sarah I give all my income of both real estate and personal property notes and mortgages and stocks I may have at my death after her death I give Sherman Hoyt the library my watch I give to Emary Hoyts son Milo as a gift for his name all the property I may have at that time or after my death that dont bring an income I want sold and the proseeds put on interist as soon as it can be done to advantage and my wife Sarah to receave the proseeds after her death all my
    the money
    property I want sold and a divided among my airs equally if Edna Y. Hoyt stays at home and takes good care of her mother I give her the house we now live in on the cor of Sarah and Lingle St furnished as it is for her share of my Estate the shares I hold in the building and loan in Osceola may be kept up at the option of the Executor and kept insured as is, now.

      I apoint A Y Hoyt of Philipsburg sivil Engineer and Edna V Hoyt and Sarah her mother executors of this will Milo Hoyt (SL) in witness thare of I have signed and sealed and published ane declaired this instrument as my will at Osceola mill July 11, 1893.
    J. W. McMullin
    i W. P. Yaughan”
    The learned auditor held that by her acceptance of the specific devise she barred herself from taking a share as a daughter under the general distribution clause preceding the specific devise. Testimony was taken before the auditor, going to show that the value of Milo Hoyt’s estate at the time of his death must have been in the neighborhood of eighteen to twenty thousand dollars, including the house specifically devised to Edna Y. Williams on condition that she stay with her mother, and that that house was worth only two thousand dollars. This testimony was taken to show the facts and circumstances as some aid in getting at the intention of the testator. It was taken under objection but admitted by the auditor and, as shown by the report of the learned auditor, was considered by him. The property which is the subject of the specific devise was valued at two thousand dollars, while an one-eighth share of Edna V. Williams in the entire estate would considerably exceed that amount, even at the valuation at the time of the death of Milo Hoyt and would show a still greater difference in value at this time or at the time of the life tenant’s death.
    There is abundant authority for the principle that these facts and circumstances may be taken into the consideration in construing this will: Rewalt v. Ulrich, 23 Pa. 388, Postlethwaite’s Appeal, 68 Pa. 477. We believe, therefore, that the testimony offered, showing the value of the estate, is a proper subject for our consideration in construing this will. — Even without such testimony, however, in consideration of the general principles of construction of wills, we are of opinion that the learned auditor erred in disallowing Edna V. Williams to share in the general distribution. The general principles applied to the construction of wills ought to be kept in mind in construing this will. These are (1) The cardinal rule of construction is to seek the intent of the testator, which is to be gathered from the four corners of the will taken as a whole. In other words the whole scheme of the will and not the words of any particular devise should be considered: Black-more v. Hickman, 81* Pa. 288; Miller’s Appeal, 113 Pa. 459. (2) It is said that the question in expounding a will is not what the testator meant but what is the meaning of his words: Hancock’s Appeal, 112 Pa. 532. (3) Words can only be supplied when necessary to give effect to the most unquestionable purpose of the testator as shown in all parts of his will. If such intent be clearly expressed or necessarily implied in order to carry out the whole scheme of the will, words may be transferred or supplied but not otherwise: Varner’s Appeal, 87 Pa. 422; Zerbe v. Zerbe, 84 Pa. 147. (4) In case of doubt the construction to be adopted is that which most nearly conforms to the interstate laws. This rule is said by the courts to be a just and salutary rule: Suplee’s Appeal, 16 W. N. O. 378; Finney’s Appeal, 113 Pa. 11; Grim’s Appeal, 89 Pa. 333. (5) Where a devise is to heirs or persons as a class to exclude one of that class therefrom will require that the intention of the testator so to do be clearly manifested. Mere negative words are not sufficient to exclude as heir or next of kin, there must be an actual gift to some other definite object: Hitchcock v. Hitchcock, 35 Pa. 393; Bruckman’s Estate, 195 Pa. 363; Sigel’s Estate, 213 Pa. 14. (6) Where a will indicates that a certain devisee shall be the principal object of testator’s bounty, courts in construing such will will not allow the distributive share of such favored devise to be reduced by expressions having an ambiguous reference to it: Biddle’s Estate, 28 Pa. 59; Penrose’s Appeal, 102 Pa. 448; Watson v. Smith, 210 Pa. 190. (7) Conditions subsequent in a will or codicil divesting or reducing a vested estate are not regarded with favor in the construction of wills, and when an estate has once vested the law will not permit a doubtful clause in a will to defeat such vested estate: Jackson’s Estate, 179, Pa. 77; Dean v. Win ton, 150, Pa. 227. (8) The residue of an estate in. testamentary language means whatever is not specifically devised or bequeathed. It is wholly immaterial in what portion of a will a clause disposing of such residue may be. Its operating effect is that of a residuary clause disposing of that which had not in any other portion of the will been specifically devised or bequeathed: Willard’s Estate, 68 Pa. 327.
    Applying these general principles of this will what can be fairly said to be the meaning of the testator’s words used therein? It is manifest that the first prinr cipal object of testator’s bounty was the welfare of his widow. To secure that he gave her the income of his entire estate during the balance of her life. To further secure her comfort he provided that his youngest child, a daughter, Edna V. Hoyt, the only one unmarried and living at home, should have an inducement to stay at home and help take care of her mother during the balance of her life. Edna Y. Hoyt, now Williams, can fairly be said therefore, to have been the second principal object of testator’s bounty in that she was to be rewarded, if she stayed at home and took care of her mother, by getting the house and furniture which then constituted their home. This devise of the house and furniture to her was contingent upon her performance of the condition named.
    It was not a mere bounty but was given her contingent upon her performing a valuable service and therefore was a gift for a consideration. It did not vest until performance, and until the death of her mother, the life tenant. The learned auditor in discussing this part of the will seemed to consider that she'had obtained the specific devise on the death of her father, whereas the very contrary is true, for had she not performed the services she never could have gotten the title to the homestead. The residuary devise to the children upon the death of the mother is wholly unconditional. It passed or vested at the death of Milo Hoyt the decedent. .It was not dependent upon the fact, circumstances or condition. How then can it be said, as a fair interpretation of this will, that he intended by her fulfilling the conditions and earning the specific bequest to be disinherited as to the residuary of his estate. The law, as above stated, does not favor such disinheritance and will only so construe wills where absolutely necessary to carry out the general scheme of the will as shown by the wording thereof. To exclude her from the residuary legacy is to disinherit her, for it is clear that the will intended that she should earn the specific devise of the house. The words used in connection therewith “for her share of my estate” do not clearly manifest the intention of disinheritance. They can equally be construed as meaning that the house and its furnishings were to be excepted from the prior clause directing a sale and subsequent division among the heirs. In other words, if she earned it as a condition precedent, it was to pass to her specifically and unconverted. These words are not as forceful as words of disinheritance in a residue as the words used in Sigel’s Estate, 213 Pa. 14. There two specific bequests were followed by the words “and no more” yet these words were construed as not taking these specific legatees out of the class to whom the bulk of his estate had been devised. So also in Fahnestock’s Estate, 147 Pa. 327, a specific legacy of two thousand dollars each to two nephews were declared to be “in full of all interest and distributive share” in an estate. These two legatees, however, were part of a general class in another or residuary clause of the will and were held to participate in such general residue.

      In Bruckman’s Estate, 195 Pa. 363, the testator in one clause declared that he would not give his niece Mary Miles one cent and in other clauses devised certain real and personal property to his wife and sister, hut left a large portion of his property, consisting of real estate undevised. On distribution of said undivided portion Mary Miles was allowed to participate.
    The class of cases relied on by the learned counsel' for the heirs in this estate are well illustrated in McGovern’s Estate, where the words of disinheritance used are clear in expression and intent. In that case, as a part of the residuary clause to a class, the testator by her will said “in no event is M, or her three children and J. or her two children to receive any portion of my estate in any shape or form.” So also in Everitt’s Estate, 195 Pa. 450, testator in his will directed his executor to transfer to his sister M. a note of M.’s son and followed this with the direction that “this shall be considered as the only share she is to have out of my estate, 195 Pa. 450, testator in his will directed his expression of intent. In the case in hand the language is not clear, for the two clauses are wholly inconsistent and therefore the will is ambiguous. Both classes must be construed as standing, if possible, and whatever there may be of ambiguity or lack of clearness in expression must be construed in favor of Edna Y. Williams. When therefore, we take into consideration the value of his estate at the time of his death, as shown by the testimony taken, it is stronger proof that he did not intend the words used to have the meaning claimed for by the learned counsel for the other heirs.
    The first and fourth exceptions are sustained.
    The Superior Court filed the following opinion:
    The two main questions raised by the assignments of error and discussed on the argument of this appeal are (1) as to the credit of $1,111.71 claimed by the accountant for expenditures made for permanent improvements and additions to the real estate of the testator; (2) as to the construction of his will. After due consideration of the evidence, the facts deducible therefrom, the questions of law arising from the facts, and the arguments of counsel, we find ourselves divided in opinion upon each of these questions. A majority of us would affirm the decision of the first question upon the findings of fact, and opinion of the learned judge, below, but some of the number concurring in that conclusion entertain a different view as to the other question. There is the same diversity of opinion as to the second question, but those of us who would affirm the decision of that question, are of the opinion that the conclusion reached by the learned judge is right, and is well sustained by his reasoning in support of it, leaving out the consideration the evidence of the value of one-eighth share of the entire, estate as compared with the value of the land specifically devised on condition to the appellee. It is therefore unnecessary to discuss the admissibility of that evidence in aid of the construction of the will. With this qualification, the decision of each question and the opinion of the learned judge below in support of it are concurred in by a majority of this court.
    May 13, 1912 :
    The decree is affirmed, and the appeal dismissed at the costs of the appellant.

      Error assigned was judgment of the Superior Court.

      Frank Fielding and Oscar Mitchell, for appellants.

      W. C. Miller, with him Marry Boulton, for appellees.
   Per Curiam,

On both questions involved in this appeal, we concur in the conclusion reached by the Superior Court.

The decree is affirmed at the cost of the appellant.


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    Fuller v. Wade, Appellant.

      Affidavit of defense — 'Warranty of horse — Promissory notes— Practice, G. P.

    In an action upon promissory notes given for tbe purchase of a horse, an affidavit of defense is insufficient, which sets up a breach of a guaranty to the effect that if the horse should not prove as guaranteed he should be replaced “with another horse of the same breed and price, upon delivery to me of the above named horse in as sound and good condition as he is at the present, or to return the notes given for him,” without any averment that the horse sold had ever been delivered or offered to be delivered to the vendor after discovery that it was not what it had been represented to be.
    Argued April 22, 1912.
    May 13, 1912:
    Appeal, No. 128, Jan. T., 1912, by defendants, from order of C. P. Crawford Co., Nov. T., 1908, No. 54, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ira C. Puller v. George C. Wade, et al.
    Before Briown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on promissory notes. .Before Williams, P. J., specially presiding.
    Tbe facts are stated in tbe opinion of tbe Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Otto Kohler, for appellants.

      Manley O. Brown, for appellee.
   Per Curiam,

This action was upon three promissory notes given by tbe appellants to Russel lams for tbe purchase of a horse. The affidavit of defense would be insufficient even if lams were the plaintiff, and it is, therefore, immaterial that the appellee may not be a holder for value without notice. The defense set up by the appellants is a breach of a written guaranty given to them by lams. A copy of the same is appended to the affidavit of defense, and the following is the clause upon which the appellants rely: “In case he (the horse) should not prove so, I agree either to replace him with another horse of the same breed and price, upon delivery to me of the above named horse in as sound and good condition as he is at present, or to return the notes given for him.” This guaranty was a conditional one, and imposed upon the appellants the duty of complying with its conditions before they could aver a breach by lams. There is no averment in the affidavit of defense that they, or any one of them, ever delivered, or offered to deliver, the horse to lams, or to any one for him, after their discovery that the animal was not what he had been represented to be. The affidavit does not even aver that lams was ever notified of the failure of his guaranty. In the absence of any averment of compliance by the appellants with the conditions of the guaranty upon which they would now stand, they have no right to have their notes returned, and their liability upon them continues. This was the correct conclusion of the court below, and the judgment is, therefore, affirmed.


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    Fritz v. New York, Chicago & St. Louis Railroad Co., Appellant.

      negligence — Railroads — Grade crossing — “Stop, loots and listen” —Contributory negligence — Case for jury.

    In an action against a railroad company to recover damages for personal injuries, the question of the plaintiff’s contributory negligence is for the jury, where the evidence tends to show that the plaintiff driving a buggy, approached a grade crossing of the defendant at about seven o’clock on a March evening; that he stopped, looked and listened at the place where it was usual to stop and look for approaching trains; that from this point there was an unobstructed view in the daytime for four squares or more in the direction from which the train was coming which continued until the track was reached; that plaintiff saw no train approaching and did not hear one coming; that he then proceeded, continuing to look and listen, and did not see the train which collided with his team until it was right upon him, and that the train which struck him was being pushed by an engine, and was made up of an open car in front with a box car in the middle, and that he saw no light on the front car.
    Argued April 23, 1912.
    Appeal, No. 339, Jan. T., 1911, by defendant, from judgment of C. P. Erie Co., Sept. T., 1909, No. 82, on verdict for plaintiff in case of Henry Fritz v. The New York, Chicago & St. Louis Railroad Company.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries, Before Benson, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant,

      May 13, 1912:

      Frank Gunnison, with him Henry B. Fish, W. Pitt Gifford and A. O. Ghapin, for appellant.

      Charles C. Baton, with him Ritchie T. Marsh, for appellee.
   Per Curiam,

On the argument of this appeal the learned counsel for the appellant announced the abandonment of the first and second assignments of error, complaining of the charge of the court; and the only question that remained for determination was whether the jury should have been permitted to pass upon the defendant’s liability. That its negligence was a question for them seems to be conceded, but it is insisted that a verdict should have been directed for the defendant, in view of the contributory negligence of the plaintiff. The inferences to be drawn from the facts upon which it relies as establishing the plaintiff’s negligence are by no means free from doubt, and the court could not, therefore, have pronounced him guilty of contributory negligence. His testimony, corroborated by his companion in the buggy, was that, as they approached the railroad crossing about 6.45 P. M., on March 11,1909, he stopped, looked and listened at the place where it was usual to stop and look for approaching trains; that he saw no train approaching and did not hear one coming; that he then proceeded, continuing to look and listen, and did not see the train which collided with his team until it was right upon him. Even though, from a point twenty-six or twenty-seven feet from the track on which the appellee’s team was struck, there was an unobstructed view for four squares or more in the direction from which the train was coming, which continued until the track was reached, it is to be remembered that it was no longer daylight; that the train which struck the appellee was being pushed by an engine and was made up of an open car in front with a box car in the middle, and that the plaintiff testified lie saw no light on the front car. If there was a headlight on the front of the engine, it may have been obscured by the box car which was in front of it. Nothing more need be said to show that the contributory negligence of the plaintiff was as much a question for the jury as was the negligence of the defendant, and the judgment is, therefore, affirmed.


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    Russell v. Russell, Appellant.

      Conspiracy — Confinement in insane asylum — Evidence of conspiracy — Damages.
    In an action of trespass against two persons for an alleged unlawful conspiracy to commit the plaintiff to an insane asylum, the case is for the jury, and a verdict and judgment for plaintiff will he sustained where the evidence tends to show that the plaintiff was sane on the day of his commitment and had shown no symptoms of insanity for a year more or less; that he had been absent from the county where he lived seven or eight months, but during this period returned to his home neighborhood about every month; that his absence or estrangement was mutually satisfactory to himself and his family; that certain threats or acts of violence alleged as evidence of insanity had happened years before; that the defendants had selected a physician to examine the plaintiff who was a blood relative of the plaintiff, which fact they presumably knew; and that the physician in order to avoid his disqualification to act had made an oath in his certificate that he was of no blood relationship to the plaintiff.
    Argued April 23, 1912.
    Appeal, No. 44, Jan. T., 1912, by defendants, from judgment of C. P. Crawford Co., May T., 1910, No. 138, on verdict for plaintiff in case of Edmund Russell v. Forest W. Russell and Park E. Wood.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for conspiracy to commit plaintiff to an insane asylum. Before Prather, P. J.

      May 13, 1912:
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $1,600. Defendant appealed.

      Error assigned, amongst others, was in refusing binding instructions for defendants.

      Franh J. Thomas, with him John O. McClintoch, for appellants.

      Manley O. Brown and Franh M. McClintoch, for appellees.
   Per Curiam,

The single question involved on the trial of this case was whether the appellants had unlawfully conspired to commit the appellee to an insane asylum. Under the evidence submitted on the part of the plaintiff, that question could not have been taken from the jury, and their finding was that there had been such a conspiracy. In the opinion refusing judgment for the defendant non obstante veredicto the learned court said: “Taking into consideration the facts that Edmund Russell was admittedly sane the day of his commitment; that the defendants offered no evidence that he had shown any symptoms of insanity for about a year more or less; that he had been absent from the county for about seven or eight months, returning to his home but once or twice in that time, although he returned to his home-neighborhood about every month; that his absence or estrangement was mutually satisfactory to himself and his family; that the threats or acts of violence upon the part of the plaintiff urged by defendants as evidence of insanity if proved, were not of recent occurrence, but to the contrary, happened years before; that the defendants, presumably with knowledge that Dr. Ellison, as a blood relative was disqualified by law to examine and certify to the insanity of Edmund Russell, selected him as one of the examining physicians, and that too, when the doctor admits that he knew he was disqualified to act, and in order to avoid this disqualification made oath in his certificate that he was of no blood-relationship to the plaintiff, we have a chain of circumstances, every link of which in turn either questions or casts suspicion upon the integrity and good faith of the defendants in the entire proceedings. The absence of justification or probable cause for their conduct sustains the conclusion of the jury that the defendants acted maliciously.” For the reasons thus given, the case was for the jury, and, as no error is discoverable in any of the assignments, the judgment on the verdict is affirmed.


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    Valley Traction Company’s Case.

      Change of venue — Interest of judge — Appeals — Interlocutory order — Act of March 80, 1875, P. L. 85.

    An order refusing an application made under the Act of March 30, 1875, See. 1, P. L. 35, for a change of venue, is an interlocutory order from which no appeal lies. Such an order may be made the subject of an assignment of error on an appeal from a final decree, if such decree shall be adverse to the applicant for a change of venue.
    Argued April 24, 1912.
    Appeal, No. 122, Jan. T., 1912, by Mechanicsburg Borough, from order of Q. S. Cumberland Co., Sept. T., 1911, No. 378, discharging rule for change of venue In re Application of the Valley Traction Company, et al., to have Ordinance No. 226 of the Borough of Mechanicsburg declared illegal and void.
    Before Brown, Piotter; Elkin and Moschzisker, JJ,
    Appeal quashed.

      May 13, 1912:
    Petition of the Valley Traction Company to have Ordinance No. 226 of the Borough of Mechaniesburg declared illegal and void.
    Petition for change of venue.
    The petition of the borough of Mechaniesburg alleged that it was the respondent in the proceedings to have Ordinance 226 set aside; that the judge of the court was formerly counsel for the Valley Traction Company; that S. B. Sadler, Esq., a son of the judge, was one of the counsel for that company in the pending action; and that L. S. Sadler, another son of the judge was a director and stockholder of said Valley Traction Company, and prayed for a change of venue.
    The answer admitted the interest of the borough of Mechaniesburg; denied that the judge had ever been counsel for the Valley Traction Company; stated that L. S. Sadler was a stockholder of that company and S. tion Company since January, 1907, and admitted that L. S. Sadler was a stockholder of that Company and S. B. Sadler, one of counsel for it.
    The court discharged the rule for change of venue.

      Error assigned was the order of the court.

      E. M. Biddle, Jr., with him H. M. Zug, for appellant.

      Lyman D. Gilbert, with him Sharpe & Elder, for appellees.
   Per Curiam,

The application for a change of venue in this proceeding was made under the third clause of the first section of the Act of March 30, 1875, P. L. 35, which provides that such a change shall be made in any civil cause in law or equity depending in a lower court whenever any relative of the judge who is required to try or hear the same “shall be a party to any such cause or interested in the event thereof.” The application was denied, and from the denial of it the borough of Mechanicsburg has appealed. The Act of 1875 makes no provision for this appeal, and, as it is from an interlocutory order, it must be quashed. The refusal of the court to award the change of venue was excepted to, and, on appeal from a final decree, if it should be adverse to the appellant, the question of its right to have had the change can be raised and passed upon here. On the other hand, if the final decree shall sustain the ordinance of the borough, it will have no complaint to make of the refusal to order a change of venue. It is, however, probably unlikely that the question which the appellant would raise by this appeal will subsequently be before us, for it ought to be safely assumed that the learned president judge of the court below will, under a sense of official propriety, call in another judge to dispose of the case, if the present objections to his sitting in it shall not be withdrawn.

Appeal quashed.


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    Kreitzer v. Albright, Appellant.

      Wills — Devise — Rule in Shelley’s Case — Estate in fee simple.

    . A devise of land to a son subject to certain money payments to testator’s daughters “to have and to hold the same during his natural life then it is to go to his heirs,” vests in the son a fee simple estate under the rule in Shelley’s case, subject to the payment of the amounts which testator directed to be paid to his daughters.
    Argued April 24, 1912.
    Appeal, No. 136, Jan. T., 1912, by defendant, from judgment of C. P. Cumberland Co., Feb. T., 1912, No. 242, for plaintiff on case stated in suit of Harry D. Kreitzer v. Harvey D. Albright.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      May 13, 1912:
    Case stated to determine marketable title to real estate. Before Sadler, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for plaintiff on case stated.

      E. M. Biddle, Jr., for appellant.

      Samuel E. Basehore, for appellee.
   Per Curiam,

The land which the appellee has contracted to sell to the appellant came to him under the following devise in his father’s will: “I give devise and bequeath to my son Harry D. the woodland Twenty-nine acres 150 P. of land woodland included in the twenty-nine acres and one hundred and fifty perches as surveyed by H. Alrick May 4, 1874, to pay out to my daughters as above stated, t'o have and to hold the same during his natural life then it is to go to his heirs.” Under the rule in Shelley’s Case the devise vested a fee in the appellee, subject to the payment of the amounts which the testator directed to be paid to his daughters. As these amounts were paid by the appellee before he entered into his agreement with the appellant, he was entitled to judgment on the case stated.

Judgment affirmed.