text:
    Mortimer v. Beaver Valley Traction Company, Appellant.

      Negligence — Street railways — Collision between wagon and car — Contributory negligence — Question for jury.

    In an action against a street railway company to recover damages impersonal injuries, it appeared that plaintiff was riding at night in an open wagon on the track of the defendant’s road on a borough street. As he was turning from the track, the back part of his wagon was struck by a car which was going in a direction opposite to that in which he was moving. According to 'his testimony he was looking for the car and first saw it when it was 308 feet from him; he at once attempted to turn from the track but lie was not given time to do so; the car was dimly lighted, was without headlights, and was running at the rate of twenty-five or thirty miles an hour; no attempt was made by the motorman to slacken its speed before the collision. Held, that the case was for the jury.
    A court is warranted in saying there was contributory negligence only in clear cases where the facts and the inferences to be drawn from them are free from doubt.
    Argued Oct. 16,1906.
    January 7, 1907:
    Appeal, No. 129, Oct. T., 1906, by defendant, from judgment of O. P. Beaver Co., Dec. T., 1903, No. 630, on verdict for plaintiff in case of Calvin B. Mortimer v. Beaver Valley Traction Company.
    Before Mitchell, C. J., Fell, Bkown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Holt, P. J.
    The facts relating to the accident are set forth in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,725. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James L. Hogan, with him John M. Buchanan,
    for appellant, cited : Thomas v. Pass. Ry. Co., 132 Pa. 504 ; Omslaer v. Traction Co., 168 Pa. 519; Myers v. R. R. Co., 150 Pa. 386.

      James H. Cunningham, for appellee,
    cited: Ehrisman v. East Harrisburg City Pass. R. Co., 150 Pa. 180; Gilmore v. Pass. Ry. Co., 153 Pa. 31.
   Opinion by

Mr. Justice Fell,

The only question raised by this appeal is whether there was such evidence of contributory negligence as to preclude the plaintiff from recovering for the injuries he sustained. He was riding at night in an open wagon on the track of the defendant’s road on a borough street. As he was turning from the track, the back part of his wagon was struck by a car which was going in a direction opposite to that in which he was moving. According to his testimony he was looking for the car and first saw it when it was 308 feet from him; he at once attempted to turn from the track, but was not given time to do so; the car was dimly lighted, was without headlights, and was running at the rate of twenty-five or thirty miles an hour no attempt was made by the motorman to slacken its speed before the collision.

This testimony, if credited by the jury, made out a case free from contributory negligence. Passenger railway companies have a superior, but not an exclusive, right to the use of the parts of the borough or city streets occupied by their tracks. It was the right of the plaintiff, subordinate to the superior right of the company to an unobstructed track for the passage of its cars, to drive on the track although he could have driven on the street on either side of it. He was held, however, to a high degree of vigilance and care, especially as he was driving in the direction from which a car would approach. Whether he exercised proper care under the circumstances was a question for the jury and not for the court. A court is warranted in saying there was contributory negligence only in clear eases where the facts and the inferences to be drawn from them are free from doubt: Iseminger v. York Haven Water & Power Co., 206 Pa. 691.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Barto, Appellant, v. Beaver Valley Traction Company.

      Negligence — Street railways — Collision between wagon and car — Case for ■jury — Contributory negligence.

    The track of a street railway company is not intended for use by pedestrians but it is open for use by those riding in vehicles. The place between the rails in cities and boroughs is paved for that purpose and the traveling public are at liberty to drive on it. Their right to use this part of the street is subordinate only to the right of the company to have a clear track. They are expected to use it both from necessity at times and for convenience when it offers a better passageway. One using it for convenience cannot be charged with negligence simply because of the fact that he could have driven at the sides of the street.
    In an action by a man and wife against a street railway company to recover damages for personal injuries, it appeared that the defendant company had a single track electric railway on the street of a borough, on which one car was run every fifteen minutes. The track was at the middle of the street, and there was room on either side for vehicles. The space between the rails was paved; the rest of the street was an ordinary dirt road. The plaintiffs at night were riding in a buggy at a slow trot on the track. The top of the buggy was down and they had looked back several times to see whether a car was coming. They first observed the car when it was a rod from them and the buggy was struck before they succeeded in getting clear of the track. The car was running fifteen miles an hour without a headlight and no signal of its approach was given. Held, that the case was for the jury.
    Gilmartin v. Rapid Transit Co., 186 Pa. 193; Penman v. Ry. Co., 201 Pa. 247, distinguished on the ground that plaintiffs were pedestrians.
    Argued Oct. 17, 1906.
    Appeal, No. 158, Oct. T., 1906, by plaintiffs, from judgment of C. P. Beaver Co., Sept. T., 1905, No. 302, on verdict for defendant in case of J. A. Barto and A. I. Barto, his wife, v. Beaver Valley Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Holt, P. J.
    The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Alfred P. Marshall, for appellants.
    The case was for the jury: Penna. Canal Co. v. Bentley, 66 Pa. 30; Arnold v. Penna. R. R. Co., 115 Pa. 135 ; Miller v. Bealer, 100 Pa. 583; Smyth v. Craig, 3 W. & S. 14; Hoag v. R. R. Co., 111 N. Y. 199 (18 N. E. Repr. 648); Hennessy v. R. R. Co., 73 Hun, 569 (26 N. Y. Supp. 321) ; Dean v. Penna. R. R. Co., 129 Pa. 514.

      James L. Hogan, with him John M. Buchanan,

    for appellee, cited: Thomas v. Pass. Ry. Co., 132 Pa. 504; Gilmartin v. Rapid Transit Co., 186 Pa. 193; Penman v. Ry. Co., 201 Pa. 247 ; Indianapolis St. Ry. v. Slifer, 72 N. E. Repr. 1055 ; Belford v. Brooklyn Heights R. R. Co., 1 Street Ry. Rep. 624.

      January 7, 1907 :
   Opinion by

Mr. Justice Fell,

The defendant has a single track electric railway on one of the streets of the borough of. Monaea, on which one car is run every fifteen minutes. The track is at the middle of the street and there is room on either side for vehicles. The space between the rails is paved; the rest of the street is an ordinary dirt road. The plaintiffs at night were riding in a buggy at a slow trot on the track. The top of the buggy was down and they had looked back several times to see whether a car was coming. They first observed the car when it was a rod from them, and the buggy was struck before they succeeded in getting it clear of the track. The car was running fifteen miles an hour without a headlight and no signal of its- approach was given. Under this state of facts detailed by the plaintiffs and their witnesses, a verdict was directed for the defendant on the ground of the plaintiffs’ contributory negligence in driving on the track at night when there was room to drive on other parts of the street.

The conclusion reached by the learned trial judge was based on the decisions of this court in Gilmartin v. Rapid Transit Co., 186 Pa. 193, and Penman v. Railway Co., 201 Pa. 247. In both of those cases the plaintiffs were pedestrians, and the ground of both decisions is that by walking along on the track of the railway company, they voluntarily exposed themselves to a known danger and were negligent in so doing. The track of a street railway company is not intended for use by pedestrians but it is open for use by those riding in vehicles. The - space between the rails in cities and boroughs is paved for that purpose, and the traveling public are at liberty to drive on it. Their right to use this part of the street is subordinate only to the right of the company to have a clear track. They are expected to use it both from necessity at times and for convenience when it offers a better passageway. One using it for convenience, as was the case here, cannot be charged with negligence simply because of the fact that he could have driven at the sides of the street. Whether under the circumstances the plaintiffs exercised proper care was for the jury.

The judgment is reversed with a venire facias de novo.


author: Per Curiam,

text:
    Forquer’s Estate.

      Will — Contingency—Condition.
    To make a will contingent or conditional it must clearly appear from its language that it was to operate only during a certain period or in a certain event.
    When the event which constitutes the contingency expressed in the instrument can be reasonably construed to have been the occasion for making the will at a particular time rather than as the reason for making it in a particular way, it should be so construed.
    Unless it appears from the will itself that it was not to operate in a certain event, it will be entitled to probate.
    The character of a will, as being contingent, or not contingent in its operation, depends on the intention of the testator as expressed in the will itself without the aid of extrinsic evidence in the form of subsequent declarations made by the testator in an incidental way, as to the disposition of his property. This rule, however, does not exclude evidence of the republication of a will already made, but which has been rendered inoperative by the happening of a contingency therein mentioned.
    Testator directed as follows: “I intend starting to-morrow morning to Montana to see my brother. Knowing the uncertainty and risk of a journey, know all persons that I do hereby will and bequeath” my real and personal property to my wife. “Also all judgments owned by me, and notes due me are hereby bequeathed to my said wife. . . . And should anything befall me while away, or that I should die, then in that event all my estate, money, notes, property of every nature and description, both real and personal, are hereby assigned, conveyed and set over to my wife for her sole benefit.” Held, that the will was not merely contingent upon testator’s death on his journey, but continued operative after his safe return, and his death thereafter.
    In such a case the construction of the will made by the court is further sustained by the fact that the testator a few days before his death republished the will in the presence of his wife and another person.
    Argued Oct. 17,1906.
    Affirmed.
    Appeal from register of wills.
    Galbreath, P. J., filed the following opinion :
    William A. Forquer died on April 9,1902, leaving to survive him a wife, Martha M. Forquer, the proponent, and two brothers, several sisters and children of a deceased sister, who are the appellants. On November 10,1882, which was about one year after his marriage to his said wife, being about to go on a journey to Montana to visit a sick brother, he wrote and signed a last will and testament, without attestation by subscribing witnesses. By profession he was an attorney at law and for many years before his death was a prominent member of the bar of Butler county. The will, when made, was committed to the keeping of his said wife, while absent on the journey to Montana. On his return, according to the evidence, he made inquiry of his wife for the will, read it to her and then placed it in his office safe, where it remained, except when taken out by him on occasion for examination, until a short time before his death, during his last illness, when, at his request it was brought and read to him by his wife, in the presence of a young woman then residing in the house, and after expressing satisfaction with its contents, he committed it to the custody of his wife until such time as it would be necessary to probate it.
    No question is raised as to its being his will duly executed at that time. The appellants contend, however, that the operation of the will was contingent on the testator’s death during his said journey to Montana, and that having returned in safety, it became inoperative and was not, therefore, entitled to probate on his death occurring subsequently.
    The question, therefore, is whether the proposed journey, with its attendant dangers, was only the occasion which suggested the making of a will at that time, or was it, in the testator’s mind, a reason for disposing of his property in a way not contemplated if he should return. In other words, was the will then made intended by the testator simply to bridge over the time of his journey, or did it look beyond that to the event of his death whenever and wherever it might occur ?
    From the numerous cases cited by counsel several principles or rules may be deduced which are to be observed in the construction of wills claimed to be contingent. These may be stated as follows:
    1. If the contingency expressed in the instrument is referred to as the occasion of making the will at that time, it is not, in that event, contingent, but if it is referred to as a reason for disposing of the property in a certain way and the disposition and the contingency are so related to each other that the one is dependent on the other, the will is, in that event, contingent.
    2. If the language used in the will can by any reasonable interpretation be construed to mean that the testator refers to a possible danger or threatened calamity only as a reason for making a will at that time, such reasonable interpretation will prevail, and the will is not contingent.
    3. To make a will contingent or conditional it must clearly appear from the language of the will that it was to operate only during a certain period or in a certain event.
    These rules, we think, are sustained by many authorities, among which the following may be cited:
    “ But if the condition is one that strikes into the essence of the whole will, affecting its status for probate and a valid operation, the main point to determine is, whether so sweeping an effect was really intended. For one may state a contingency that he has in mind as the inducement for making his will, by way of narrative, so to speak, or he may, on the contrary, state it as the condition on which the will is to become operative. The question is, which he intended; and the inclination, in case of doubt, should, we hold, be to the former and less injurious and impolitic conclusion: ” Schouler on Wills, sec. 285.
    In the Goods of Porter, Law Reports, 2 Prob. & Div. 22, Lord Penzance held that if the language used in the will can by any reasonable interpretation be construed to mean that the testator refers to a dangerous journey about to be taken or a threatened calamity only as a reason for making a will at that time, it is not a contingent will.
    In Likefield v. Likefield, 82 Ky. 589, the rule is held to be that courts will not incline to regard a will as conditional if it can be reasonably held that the maker was simply expressing his inducement to make it, however inaccurate the language may be for that purpose, if strictly construed, and that unless the words clearly show that it was to be temporary or contingent, it will be upheld.
    In Cody v. Conly, 27 Grattan (Va.), 313, the court says : “ The cases show that while a person may make a conditional will his intention to do so must appear very plainly on the face of the will, and if such an intention do not so appear, the will must be regarded as unconditional. In order to render the instrument contingent in its operation it should clearly appear by its language that it was not. intended to remain an operative will except in the event of the failure to return.”
    Reference to a few of the many cases cited by counsel will indicate how those rules have been applied by the courts.
    In Todd’s 'Will, 2 W. & S. 145, written in contemplation of a journey, as follows: “ My wish, desire and intention now is that if I should' not return (which I will, no preventing Providence) what I own shall be divided as follows,” etc., it was held that, on his return and subsequent death, the will was contingent.
    In Hamilton’s Estate, 74 Pa. 69, the language, “Should I die before the first of March, 1878,” etc., was held to be the expression of a contingency which prevented the operation of the instrument after the event failed to happen.
    In Morrow’s Appeal, 116 Pa. 440, Morrow, when about to go from home, wrote and signed a testamentary paper, beginning as follows : “ I am going to town with my drill and i aint feeling good and in case i shoulddend get back do as i say on this paper,” etc. He returned birt died soon afterward in the same illness. The will was held to be contingent.
    In Jeffries’s Estate, 18 Pa. Superior Ct. 439, the testatrix made a will giving all her estate to a trustee for her nephew, George L. Stewart, and subsequently on the same day she executed a second will, as follows : “ Know all men by these presents that I, Mary A. Jeffries, of sound mind, am going on a trip from home with my nephew, George L. Stewart, do hereby direct that in case of the death of both of us that my estate shall be divided as follows : ” Then follow certain dispositions, after which she adds : “ I declare the above to be my will and testament in case of the death as aforesaid of myself and George L. Stewart.” Both survived the journey, and the last paper was thereupon held inoperative.
    In Magee et al. v. McNeil, 41 Miss. 17, the will of a soldier in the confederate army contained the following expression: “ If I never return home I want all I have to be my wife’s.” On his return and subsequent death the will was held to be contingent.

      In Damon v. Damon, 90 Mass. 192, the will contained the following: “I, J. W. D., being about to go to Cuba, and knowing the danger of voyages, do hereby make this my last will,” etc. “ First: If by casualty or otherwise, I should lose my life during the voyage, I give and bequeath to my wife A.,” etc. He then went on to give other specific devises. Held, conditional as to first clause of the will.
    In all the foregoing cases it will be observed that the contingent character of the instrument or devise stands out clearly.
    Adverting to some of the cases in which wills claimed to be contingent have been held, not to be so, the following may be noted:
    In the Goods of George Thorne, 4 Swab. & Trist. 36, the will, dated at the Gold Coast of Africa in 1863, contained the following: “ Be this known to all concerned: I request that in the event of my death while serving in this horrid climate or any accident happening to me, I leave and bequeath to my beloved wife,” etc. “ I consider that every person should be prepared for the worst and especially in such a treacherous climate as this, which is considered one of the worst in the world, which has compelled me to write this letter.” It was held not contingent on death on the Gold Coast.
    In the Goods of Dobson, -Law Reports, 1 Prob. & Div. 88, the following language : “ In case of any fatal accident happening to me, being about to travel by railway, I hereby leave,” etc., was held not to render the will contingent, the court, per Sir J. P. Wilde, saying : “ I am unwilling to refuse probate of a testamentary paper on the ground that it was contingent, unless it is clear that the testator intended that it should operate only in a certain event or during a certain period.”
    In the Goods of Martin, Law Reports, 1 Prob. & Div. 380, the will contained the following: “ I, W. M., being physically weak in health, have obtained permission to cease from all duty for a few days and I wish during such time to be removed from the brig Appellina to the floating hospital ship, Berwick Wall, in order to recruit my health, and in the event of my death occurring during such time, I do hereby will and bequeath,” etc: The will was held not contingent.
    In the Goods of Stewart, 21 Law Reports, Ireland, 105, the will contained the following: “ As I am about to leave home for Bangor, should any accident take me out of this world,” etc., which was held not to render it contingent.
    In Tarver v. Tarver, 34 U. S. 174, the will begins as follows: “ Being about to travel a considerable distance and knowing the uncertainty of life, think it advisable to make some disposition of my estate,” etc. Held not contingent.
    In Ex parte Lindsay, 2 Bradford’s Surrogate (N. Y.), 204, the following was held not to render the will contingent: “ According to my present intention, should anything happen me before I reach my friends in St. Louis, I wish to make a correct disposal,” etc.
    In Skipwith v. Cabell, 19 Grattan (Va.), 758, the language, “ In case of a sudden and unexpected death, I give the remainder of my property,” did not make the will a conditional one.
    IirLikefield v. Likefield, 82 Ky. 589, the language, “If any accident should happen me that I die from home my wife, J. A. L., shall have everything I possess,” was held to render the will inoperative or contingent.
    These citations of general principles and their application to concrete cases seem to make it quite clear that when the event which constitutes the contingency expressed in the instrument can be reasonably construed to have been the occasion for making the will at a particular time, rather than as the reason for making it in a particular way, it should be so construed; and further, that unless it clearly appear from the instrument itself that it was not to operate in a certain event, it will be entitled to probate.
    Applying these rules to the will of William A. Forquer it may be observed, we think, that its first portion contains no hint that its provisions were in any way contingent. It is as follows : “ Butler, November 10th, 1882. I intend starting tomorrow morning to Bozeman, Montana, to see my brother Joseph. Knowing the uncertainty and risk of the journey, know all persons that I do hereby will and bequeath all my personal property to my wife, Martha M. Forquer. And I do hereby devise my real estate to said Martha M. Forquer, which consists in the undivided one-half of the one-fifth of one hundred acres of land in Allegheny township, Butler county, the title to which is in Thos. Niggle, the deed for which is in the safe, which has never been delivered to him. There is also a paper in the safe signed by Thos. Niggle stating that I am the owner of the one-half of said one-fifth of said one hundred acres of land, I having paid the purchase money recited in the said deed. Also all judgments owned by me and notes due me are hereby bequeathed to my said wife.”
    Thus far there is nothing in the language of the will to render its operation contingent. The reference to the proposed journey seems but a statement of his reason for the making of his will at that time. It belongs to that class of phrases so often found in the introductory language of wills, such as “ Knowing the uncertainty of life,” etc. And we think it may be safely said that if the will had ended here no doubt could arise as to its absolute character. But the language which follows seems to gather up all that has gone before and to express it in another form. Did the testator intend that it should also,have a different meaning? The dispositions thus far made carry his whole estate to his wife, without any suggestion of their being contingent in character. Did he intend by the language which immediately follows to undo the absolute disposition already made of his whole estate, and attach a condition which would make their efficacy contingent on his death occurring during the time of his contemplated journey ?
    The language which immediately follows that already quoted, and on which is predicated the contention that the will is contingent, is as follows : “ And should anything befall me while away or that I should die, then in that event all my estate, money, notes, property of every nature and description, both real and personal, are hereby assigned, conveyed and set over to my wife for her sole benefit,” etc. Is this language merely a repetition in the form of a summary of what has gone before, or is it a disposition different in kind from that which had been already made ? Can the will as a whole, by any reasonable interpretation, be made to speak as of the time of testator’s death, whenever it might occur, or does it, on the. other hand, clearly appear from the will itself that it was only intended to become of effect in the event of testator’s death during his contemplated journey ? Three reasons impel us to a conclusion in favor of the former proposition. These are:

      1. Testator’s evident solicitude for his wife, apparent in the will.
    2. We do not think that the contingency expressed in the will was intended to undo or destroy the absolute character of the dispositions already made therein.
    3. The language used to express the contingency does not clearly lead to the conclusion that it was, intended to render the will contingent in its operation. It may, on the other hand, be reasonably construed in favor of an absolute will.
    No Pennsylvania case has been cited in which the language of the contingency is at all similar to that of the case at bar. And the only case cited in which there is any proximate similarity is in the Goods of George Thorne, 4 Swab. & Trist. 36.
    The language there is : “I request that in the event of my death while serving in this horrid climate, or any accident happening to me,” etc. The first part of this language expresses a clear contingency and, standing alone, would seem to render the will contingent, but the disjunctive clause which follows, “ or any accident happening tome,” without qualification as to time or place, seems to have relieved the will of its otherwise contingent character. In the case before us the language expressive of the contingency is “ and should anything befall me while away or that I should die,” etc. The expression “ should anything befall me while away,” standing alone, is clearly contingent. It evidently refers to the possible death of the testator while away, as no other event could befall him which would give effect to the disposition of his estate which he was then making. The testator would have expressed the same thought had he said, “ And should death overtake me while away.” It clearly refers to his possible death while on his journey. We may well suppose that the testator, by the disjunctive expression which follows, “ or that I should die,” meant to add something to what he had already said. He had already provided for the contingency of death while on the journey. We may assume that he meant to add something by the use of the language which followed, and if so, that he meant to make provision against the event of his death whenever it might occur. By the use of the disjunctive “ or ” the provision which follows excludes the thought that immediately preceded, and has, we think, the same force and meaning as if it stood alone. To give it the meaning contended for by the appellants we would have to interpolate the qualifying expression, “while away,” used in the preceding clause. But what warrant have we for doing this in order to give to the instrument a contingent character, which, if it exist, must clearly arise out of the writing as it stands ? In other words, we conclude (1) that it does not clearly appear from the will itself that its operation was intended to be contingent and (2) that it can, by a reasonable interpretation of its language, be construed to be absolute rather than contingent, and in either event, under the authorities, it is entitled to probate.
    This conclusion has been arrived at from a consideration of the language of the will itself unaided by extrinsic evidence. The character of a will, as being contingent or not contingent in its operation, depends on the intention of the testator as expressed in the will itself without the aid of extrinsic evidence in the form of subsequent declarations made by the testator in an incidental way, as to the disposition of his property.
    In Wusthoff v. Dracourt, 3 Watts, 240, it is said that: “ Courts of law have always leaned against extrinsic evidence to explain the intention of the testator. There is, in fact, but one case where.it is permitted and that is where the ambiguity is introduced by extrinsic circumstances and in such case parol evidence is admitted from necessity.”
    When the subject-matter to which the language of the will is intended to apply is not clear or where more than one person answers to the description of the object of the testator’s bounty, or when the object is not well expressed, the court may invoke the aid of extrinsic circumstances in order to determine the testator’s intent. Without doubt, too, the careful preservation of a regularly executed will up to the time of death is of importance in the construction of a subsequent paper of doubtful testamentary import, an instance of which is found in Jacoby’s Estate, 190 Pa. 382. But we have not been referred to any authority which holds that the- character of a will, as being contingent or otherwise, may be determined or any doubt thereof solved by the introduction of extrinsic circumstances such as those referred to. The court, in a proper case, may be aided by evidence of the circumstances surrounding testator at the time of making his will, so as to put itself as nearly as possible in his place at the time the will was executed, but even this cannot be permitted to affect the construction when the language is clear and unambiguous. To be governed or even aided by the subsequent declarations of a testator in determining his intentions as already written in his will would be a precedent attended with much danger, tending to inject into the will an patent possibly not written therein and thus to depart from the strictness of the rule which requires wills to be in writing. The meaning of the language of the will might thus be made to depend, in some degree, not on the intention of the testator at the time the will was executed, but on what he afterward said about it under circumstances in which no testamentary import should be predicated of his words.
    All the evidence, therefore, in the case at bar, of the subsequent declarations of the testator to the effect that he had made a will and given his property to his wife, and which was received under objection, is excluded, and the objections thereto sustained. The question at issue is not whether a will had, in fact, been.- made, but what is the meaning of a will admittedly made. Whatever doubt exists as to its meaning is not introduced by extrinsic circumstances, but is frqm within. The court cannot, therefore, as we think, invoke the aid of extrinsic circumstances in order to its solution.
    This does not, however, exclude evidence of the republication of a will already made, but which has been rendered inoperative, revoked or superseded by some subsequent will or circumstance. And such republication may be by parol: Havard v. Davis, 2 Binney, 406 ; Jones v. Hartley, 2 Wharton, 103; Campbell v. Jamison, 8 Pa. 498; Jack v. Shoenberger, 22 Pa. 416 ; Wallace v. Blair, 1 Grant, 75.
    Having arrived at the conclusion that the will under consideration was absolute in character and not contingent, and there being no evidence of its subsequent revocation, it would seem unnecessary to determine the contention of proponent’s counsel that the testator, a few days before his death, in the presence of his wife and another, did republish his will. The evidence, however, of what took place at that time is uncontradicted and is sufficient to establish a republication of the will, and the will so republished is, we think, relieved of the contingency expressed therein, the event having been passed. This would seem not only reasonable, but to be supported by authority. In Scliouler on Wills, sec. 287, it is said: “But where a will, written as though conditional upon a long journey, is re-executed and duly witnessed after the testator’s safe return, the condition ceases, and the will may fully operate by remaining uneancelled.” We see no reason why this rule should not govern where, instead of a re-execution of the will, there has been a republication of it, supported by the necesary evidence.
    We conclude, therefore, that the will of William A. Forquer was entitled to probate. The decree of the register of wills, admitting it to probate, is therefore affirmed and the appeal therefrom is dismissed September 4, 1905.

      Mrror assigned was the decree of the court.

      S. S. Mehard, with him A. T. Black and W. Z. Murrin, for appellants.
    The will in dispute was contingent upon the death of the testator, William A. Forquer, while on the journey mentioned in it, to Bozeman, Montana, and was not effective as a will after his safe return: 1 Redfield on Wills, 177-179; 1 Jarman on Wills, 6 ed., 27-28; 1 Williams on Executors, 225 ; Todd’s Will, 2 W. & S. 145; Hamilton’s Estate, 74 Pa. 69; Morrow’s Appeal, 116 Pa. 440 ; Jeffries’s Estate, 18 Pa. Superior Ct. 439 ; Parsons v. Lanoe, 1 Vesey Sr. 189; Magee v. McNeil, 41 Miss. 17; Maxwell v. Maxwell, 60 Ky. (3 Mete.) 101; Dougherty v. Dougherty, 61 Ky. (4 Metc.) 25 ; Damon v. Damon, 90 Mass. 192 ; Robnett v. Ashlock, 49 Mo. 171.
    Evidence of the parol declarations of the testator was not admissible to effect the interpretation of the instrument in question: Thompson v. Kaufman, 9 Pa. Superior Ct. 305 ; Sponsler’s App., 107 Pa. 95; Flowers v. Franklin, 5 Watts, 265; Hancock’s Appeal, 112 Pa. 532; Green’s Estate, 140 Pa. 253; Stevens’ Estate, 164 Pa. 209; McVey v. Latta, 4 W. N. C. 524 ; Follweiler’s Appeal, 102 Pa. 581; Hulton’s Appeal, 104 Pa. 359; MacConnell v. Wright, 150 Pa. 275 ; McCall v. McCall, 161 Pa. 412; McCay v. Hugus, 6 Watts, 345, 347.
    Evidence of a parol republication of the will in question was not admissible so as to revoke a condition therein expressed: Havard v. Davis, 2 Binney, 406; Jones v. Hartley, 2 Wharton, 103 ; Campbell v. Jamison, 8 Pa. 498; Jack v. Shoenberger, 22 Pa. 416 ; Wallace v. Blair, 1 Grant, 75.
    January 7, 1907 :

      T. C. Campbell, with him R. P. Scott, S. F. Bowser and Lev. McQuistion,

    for appellee. The will was an absolute will and not conditional or contingent : Parsons v. Lanoe, 1 Vesey Sr. 189 ; Morrow’s App , 116 Pa. 440 ; Sinclair v. Hone, 6 Vesey, 608; Burton v. Collingwood, 4 Plaggard Eccl. 176 ; Forbes v. Gordon, 3 Phillimore, 614; Thorne’s Case, 4 Swab. & Trist. 36; Martin’s Case, L. R. 1 Probate & Divorce, 380; Porter’s Case, L. R. 2 Probate & Divorce, 22; Lindsay v. Lindsay, L. R. 2 Probate & Divorce, 459; Hugo’s Case, L. R. 2 Probate Division, 73 ; Mayd’s Case, L. R. 6 Probate Division, 17; Jacks v. Henderson, 1 Desaussure’s Eq. (So. Car.) 543; Wagner v. McDonald, 2 Harris & Johnson (Md.), 346 ; Tarver v. Tarver, 34 U. S. 174; Todd’s Will, 2 W. & S. 145; Ex Parte Lindsay, 2 Bradford’s Surrogate (N. Y.), 204; Thompson v. Connor, 3 Bradford’s Surrogate (N. Y.), 366; Maxwell v. Maxwell, 60 Ky. 101; Dougherty v. Dougherty, 61 Ky. 25; Damon v. Damon, 90 Mass. 192; Magee v. McNeil, 41 Miss. 17; Shipwith v. Cabell, 19 Grattan (Va.), 758; Robnett v. Ashlock, 49 Mo. 171; Cody v. Conly, 27 Grattan (Va.), 313; French v. French, 14 W. Va. 458 ; Likefield v. Likefield, 82 Ky. 589 ; Morrow’s App., 116 Pa. 440 ; Jeffries’s Est., 18 Pa. Superior Ct. 439 ; Plamilton’s Est., 74 Pa. 69 ; Mickley’s App., 92 Pa. 514.
    If the will as written was conditional or contingent, it may be republished by the testator by parol after the event upon which the contingency depended has been safely passed: Magee v. McNeil, 41 Miss. 17; Maxwell v. Maxwell, 3 Metc. (60 Ky.) 101; Campbell v. Jamison, 8 Pa. 498 ; Jack v. Shoenberger, 22 Pa. 416 ; Wallace v. Blair, 1 Gr. 75; McCullough v. Fenton, 65 Pa. 418 ; Porter’s App., 94 Pa. 332; Stambaugh’s Est., 135 Pa. 585; MacConnell v. Wright, 150 Pa. 275; Duffy’s Est., 4 Pa. Dist. Rep. 147; McKeehan v. Wilson, 53 Pa. 74.
   Per Curiam,

Decree affirmed on the opinion of the court below.


author: Mr. Justice Mestrezat,

text:
    Pew, Appellant, v. Minor.

      Equity — Equity pleading — Demurrer—Speaking demurrer.

    When a defendant in an equity suit interposes a demurrer as a- defense he admits the truth of the material facts set out in the bill, but denies that they are sufficient to justify the court in granting the relief prayed for by the plaintiff. The defense must be made out from the allegations of facts in the bill which, so far as material, are taken as verity. It is a settled rule of equity pleading that the defendant is not permitted to introduce averments of fact in his demurrer, and if he does so, and the facts thus averred are necessary to support the demurrer, it constitutes a speaking demurrer, and is bad.
    A demurrer to a bill in equity filed in the common pleas setting up that the case had been adjudicated at law in the court of quarter sessions, is bad as a speaking demurrer, and will not be sustained where there is no reference in the bill to the proceedings in the quarter sessions.
    Argued Oct. 17, 1906.
    Appeal, No. 161, Oct. T., 1906, by plaintiff, from decree of O. P. Beaver Co., June T, 1906, No. 2, dismissing bill in equity in case of Joseph N. Pew v. Stephen Minor, Burgess, Charles M. Hughes, President, and Thomas L. Minesinger et al., members of the Town Council of the Borough of Beaver.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity to restrain the defendants, the burgess and members of the town council and the borough of Beaver, from enforcing an ordinance annexing to the borough a certain section of territory in the township of Borough. Before Porter, P. J.
    The bill was demurred to on the ground that the question involved had been previously adjudicated at law in the court of quarter sessions.
    The court sustained the demurrer and dismissed the bill.

      Error assigned was decree dismissing the bill.

      George B. Gordon, with him John M. Buchanan, James L. Hogan and David A. Nelson, for appellant.
    A demurrer which introduces some new fact or averment which is necessary to support the demurrer and which does not distinctly appear upon the face of the bill, is a speaking demurrer; such a demurrer will be overruled: Brooks v. Gibbons, 4 Paige, 374; Story’s Eq. Pleadings, 10th ed., p. 448; Davies v. Williams, 1 Sim. 5; Brownsword v. Edwards, 2 Ves. Sr. 243 ; Henderson v. Cook, 4 Drew, 306 ; Black v. Shreeve, 7 N. J. Eq. 440.
    January 7, 1907:
    Our own Pennsylvania cases are necessarily in accord with this fundamental rule of pleading: Love v. Robinson, 213 Pa. 480; Wyoming County v. Bardwell, 84 Pa. 104; Wright v. Weber, 17 Pa. Superior Ct. 451; Wingert v. Continental Life Ins. Co., 1 W. N. C. 72.

      John B. McClure, with him Joseph L. Holmes and Agnew Hice, for appellee.
   Opinion by

Mr. Justice Mestrezat,

' The court below sustained the demurrer and dismissed the bill in this case for the following reasons set forth in the brief opinion filed : An examination of the proceedings at No. 29

December Term, 1905, reveals that the questions involved in this suit were thereat adjudicated and a court of equity will not again try the same question. Upon the appeal the court of quarter sessions had jurisdiction of the subject-matter. We therefore are of the opinion that the demurrer should be sustained and the bill dismissed.” This ruling was based on the fact assigned as the first ground or cause of demurrer that “all questions of fact and law raised by plaintiff’s bill of complaint in this case have been adjudicated by a court of law át No. 29 December Term, 1905, in the court of quarter sessions of Beaver County, Pa.” This fact is not found in the bill but is averred in the demurrer and, as we have seen, was the ground on which the court sustained the demurrer.

When a defendant in an equity suit interposes a demurrer as a defense he admits the truth of the material facts set out in the bill, but denies that they are sufficient to justify the court in granting the relief prayed for by the plaintiff. The defense must be made out from the allegations of fact in the bill which, so far as material, are taken as verity. It is a settled rule of equity pleading that the defendant is not permitted to introduce averments of fact in his demurrer, and if he does so, and tbe facts thus averred are necessary to support the demurrer, it constitutes a speaking demurrer, and is bad. In 1 Daniell’s Ch. Plead. & Prac. (6th Am. Ed.) * 587 it is said: “ Care must be taken in framing a demurrer, that it is made to rely only upon the facts stated in the bill; otherwise it will be what is termed a speaking demurrer, and will be overruled.” And in Adams on Equity * 385 the learned author says: “ A demurrer introducing contrary or additional averments is termed a speaking demurrer, and cannot be sustained.”

Applying this rule to the case in hand, we must hold that the trial court committed error in sustaining the demurrer. As we have seen, there was no allegation in the bill that the questions raised therein had been adjudicated by the court of quarter sessions, and the fact only appeared by an averment in the demurrer. The learned judge, however, examined the proceedings in the quarter sessions and found that they “revealed that the questions involved in this suit were thereat adjudicated,and for that reason sustained the demurrer. This was manifest error and requires the reversal of the decree, regardless of the merits of the case.

Decree reversed at the cost of the appellee, and a procedendo is awarded.


author: Mr. Justice Potter,

text:
    Jolly v. Monaca Borough, Appellant.

      Municipalities — Boroughs—Water supply — Water rates.

    A municipal corporation in supplying water, or any other commodity, to its inhabitants individually, acts in a private, and not in a public capacity, and the relation established with the individuals with whom it deals is purely one of contract.
    A borough which has established waterworks of its own has a right to impose by ordinance reasonable rates and charges for the supply of water furnished by it to the residents of the borough.
    Water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity. The obligation to pay for the use of water rests either on express or implied contract on the part of the consumer to make compensation for water which he has applied for and received, on the terms and conditions made public.
    Argued Oct. 17,1906.
    Appeal, No. 163, Oct. T., 1906, by defendants, from decree of C. P. Beaver Co., June T., 1906, No. 5, granting and continuing a preliminary injunction in case of A. J. Jolly et al. v. Monaca Borough etal.
    January 7, 1907 :
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Holt, P. J.
    The opinion of the Supreme Court states the case.
    The court granted a preliminary injunction which it subsequently continued.

      .Error assigned was the decree of the court.

      William, J. Mellon, for appellant.
    The borough had a right to collect water rents: Hughes v. Parnassus Boro., 23 Pa. C. C. Rep. 196 ; Millvale Boro., 162 Pa. 374.

      Wm. A. McConnel, for appellees.
    All corporations, whether public or private, derive their power from legislative grants, and can do no act for which authority is not expressly given, or may not be reasonably inferred: Commonwealth v. Erie and North-East R. R. Company, 27 Pa. 339; Pennsylvania Railroad Company’s Appeal, 93 Pa. 150 ; Bly v. White Deer Mountain Water Company, 197 Pa. 80.
    Water companies incorporated under the Act of April 29, 1874, P. L. 73, have authority to fix water rates. But there .is no’ such power given to boroughs to fix or collect water rents: Carlisle Gas & Water Co. v. Carlisle Water Co., 188 Pa. 51; White v. City of Meadville, 177 Pa. 643 ; Metzger v. Beaver Falls Boro., 178 Pa. 1; Wilson v. Rochester Borough, 180 Pa. 509; Welsh v. Beaver Falls Boro., 186 Pa. 578; Dayton v. Quigley, 29 N. J. Eq. 77; Ransberry v. Keller, 9 Pa. C. C. Rep. 299.
   Opinion by

Mr. Justice Potter,

The borough of Monaca erected waterworks in the year 1895. For some ten years, the cost of maintaining the works was paid out of the general and special taxes assessed on the taxpayers of the borough. But on July 13,1905, the borough passed an ordinance requiring all consumers within the borough to pay certain rates for the use of water, either by contract according to the number of rooms in the dwelling where the water was used for domestic or household purposes, or by the quantity; and requiring the users of water for manufacturing purposes, or for any purpose other than household or domestic use, to pay therefor such sums as should be fixed by councils, and giving all persons using water for any purpose, the right to meter the same at certain rates per thousand gallons.

In pursuance of - the terms of the ordinance, all consumers of water were notified to comply therewith on or before May 1, 1906, or the water would be shut off. Plaintiffs being taxpayers and consumers of water within the borough, filed a bill in equity to restrain the borough officials from shutting off the water from their premises, alleging that the ordinance was illegal because the borough was without legislative authority to enact it.

The trial judge was of the opinion that the power of the borough to provide for the expense of supplying water, was limited to its power of taxation, and that it had no authority to fix water rates by ordinance, and charge consumers of water in accordance therewith. He therefore awarded a preliminary injunction against the borough, which was continued until final hearing. The borough has appealed. The single question before us is as to the right of the borough to levy rates or charges against the consumers of water who make use of its service.

The right of the borough to provide its own water supply is clear. The Act of April 3, 1851, P. L. 320, provides that boroughs incorporated under its provisions shall have power “ to establish a nightly watch, to light the streets, to provide. a supply of water for the use of the inhabitants, to make all needful regulations for the protection of the pipes, lamps, reservoirs and other constructions or apparatus, and to prevent the waste of water so supplied.” While this language contains no express grant of the right to charge water rents, yet it certainly does follow as a natural and reasonable implication. It might well be implied from the grant of power “ to prevent the waste of water so supplied ; ” for the most effectual method of regulating waste, is to impose a charge for the water taken.

The Act of June 10, 1885, P. L. 81, contains a legislative construction of prior legislation authorizing boroughs to supply water to their inhabitants. That act provides “ that whenever any borough of this commonwealth is authorized by law to erect and maintain waterworks for supplying water within the limits of such borough, it shall and may be lawful for the authorities of any such borough, whenever they may deem it advisable so to do, to supply'and to make contracts for supplying water for ordinary and domestic uses to corporations, property owners, lessees or occupants outside the limits of such borough, at water rates not less than those required to be paid by property owners within the limits of such borough.” This reference to the rates required to be paid by property owners within the borough, is an express recognition of the right of a borough to charge water rates under existing laws.

This right was also recognized by the Act of May 24, 1878, P. L. 118, which provided .that “the proper authorities of any borough of this commonwealth, owning or controlling waterworks for the supply of water to the inhabitants of said borough, whenever the schedule of water rents shall have been fixed or limited by general or special act of assembly, shall be and are hereby authorized to change the rates or schedule of rents, from time to time, so that the same shall not, at any time, exceed the rates now limited by law.”

While this act applies only to boroughs where the schedule of water rents has been fixed or limited by act of assembly (e. g., Water Works Commrs. v. Sewickley Borough, 159 Pa. 194), it clearly recognizes the fact that boroughs have the power to charge water rents for supplying water to their inhabitants.

We think the court below overlooked the fact that a municipal corporation, in supplying water, or any other commodity, to its inhabitants individually, acts in a private, and not in a public, capacity, and the relation established with the individuals with whom it deals is purely one of contract.

The situation was well put by Judge Pershing in his opinion in Brumm’s Appeal, 22 W. N. C. 137, affirmed by this court. He there said: “ A municipal corporation which supplies its inhabitants with gas or water does so in its capacity of a private corporation, and not in the exercise of its powers of local sovereignty. If this power is granted to a borough or city, it is a special private franchise, made as well for the private emolument and advantage of the city as for the public good. In separating the two powers, public and private, regard must be had to the object of the legislature in conferring them. If granted for public purposes, exclusively, they belong to the corporate body in its public, political or municipal character. But if the grant was for purposes of private advantage and emolument, although the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands upon the same footing as would any individual or body, of persons upon whom the like special franchises had been conferred.”

The same principle is thus succinctly stated by Judge Orlady, in Penn Iron Co. v. Lancaster, 25 Pa. Superior Ct. 478 : “ While it is no part of the ordinary and necessary duties of the municipal corporation to supply its citizens with gas and water, it is nevertheless true that it may lawfully do so. Such contracts are not made by a municipal corporation by virtue of incorporation. The supply of gas and water may be accomplished through the agency of individual or private corporations, and in many instances it is accomplished by such means. If this power is granted to a borough or city, it is a special private franchise and may be for the emolument and advantage of the city and for the public good, but when such a corporation engages in things not public in their nature, it acts as a private individual; no longer legislates, but contracts ; and is as much bound by its engagements as a natural person.”

If, then, the borough, when furnishing a supply of water, stands upon the same footing as a private corporation, it is entitled to the same privilege of receiving payment for the service rendered. It would be a strange place to draw the line, to hold that service must be rendered, and water supplied by the borough, without any compensation being made therefor.

Water rates are paid as the compensation or equivalent, by those who choose to receive and use the water, as a commodity furnished by the borough. No one is compelled to receive or use the water, and when anyone does so, with knowledge of the rates charged, he by implication agrees to pay those rates, and his obligation rests upon contract.

The collection of water rates should not be in any way confused with the exercise of the power of taxation. In 30 Am, & Eng. Ency. of Law (2d ed.), 422, the cases are thus summed up: “ Water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity. The obligation to pay for the use of water rests either on express or implied contract on the part of the consumer to mate compensation for water which he has applied for and received, on the terms and conditions made public.”

We are of opinion that the borough of Monaca has the right to impose by ordinance, reasonable rates and charges for the supply of water, furnished by it.

The assignments of error are sustained, and the preliminary injunction granted by the court below is dissolved ; the costs of the proceedings to be borne by the appellees.


text:
    Beaumont’s Estate.

      Decedents’ estates — Will—Signature at end.

    Written matter following the signature to a will, will not invalidate the paper as a will, if such written matter is not testamentary in character.

      Will — Execution—Change of domicile.

    A will of personal property must be executed according to the law of the testator’s domicile at the time of his death.
    A will executed in New York, and void as a will under the law of that state for want of subscribing witnesses, is valid as a will under the laws of Pennsylvania if it appears that after the execution of the will, testator changed his domicile from New York to Pennsylvania, and died in the latter state.
    Argued Oct. 17, 1906.
    Appeal, No. 30, Oct. T. 1906, by Charles Beaumont et al., from decree of O. C. Butler Co., June T., 1905, No. 16, dismissing appeal from register of wills in estate of Lucius S. Beaumont, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    The paper admitted to probate by the register was as follows;

      “ 1901 L. Beaumont Cash Estate
    “ My Luckey Numbers
    13026-7-8-9
    13030-1-2-5-4-5-6-7
    18184-5-6-7-8-9
    18190-1-2-3-4-5-6-7-8-9
    18200-1-2-3
    3352-3
    3334
    18139-40-1
    10846-7
    18584-5
    20868-9-70
    7218-19
    ' 5100
    4465
    4464
    50 Feb. And August B LB 1612
    “ L. S. Beaumont Oct. 25th, 1901
    “ It is my desire that my safe and Books go to my brother Except any papers and trust that may belong to my wife and others — My Guns and Fish poles to go to my brothers. All other personal property to my wife. I mean the books in my Safe.
    “ New York Oct. 25th, 1901
    “ L. Beaumont
    “ Oct. 25th L. Beaumont Estate
    “ Mrs. Beaumont and myself have an account with the New York Life & Trust Co., 52 Wall St.
    Balance there this date......... 2068.29
    “ Mrs. Beaumont and myself have a Lock Box,
    No. 7807 in the Mercantile Safe Deposit Co., in which there are securities to the amount of ... 4070.55
    “ Mrs. Beaumont has a personal Acct. in the Butler County National Bank now amounting to . 197.58
    My wife is the only person that can use that Acct.--
    6316.42
    “ L. Beaumont. ■

      “ Oct. 25th. I have a personal Acct. in the Seaboard National Bank 20 Broadway, Enough of this money if any must be used to defray my Funeral Expenses and the balance if any to be given to my wife.
    “ Cremation is my wish.
    “ The cash balance in this Acct this date . . 1488.95
    “Amount . . 7825.37
    “No one must Disturb or interfere with thease above acct. they belong to my wife Mrs. Nancy J. Beaumont.
    “Vey, Resp.
    “L. S. Beaumont,
    “ Oct. 25th, 1901.”
    Patton, P. J., specially presiding, after disposing of a question as to domicile of testator.
    The next matter that requires attention is the question of law, whether the paper of October 25, 1901, is the valid last will and testament of Lucius S. Beaumont, deceased.
    The testator kept a “ Journal Cash Book” which is headed on the first page “ Cash Acct L. Beaumont et al.,” in which the first entry was made February 1, 1890, and the last entry on November 15, 1903, on page 117. The alleged last will and testament offered and admitted to probate, was written on pages 79 and 80 of this book, on October 25, 1901. The date of the last entry immediately before this one, was December 4, 1894, and the date of the next entry after October 25, 1901, is November 4, 1901. The entire entries of the date of October 25, 1901, are offered, for probate as the will/’ except the entry at the head of page 81 which reads as follows :
    “ L. S. Beaumont et al.
    “1901.- Oct. 25 By Balance . . . 7825.37”
    Is said paper invalid as the last will and testament of L. S. Beaumont because not signed at the end thereof as required by the Act of April 8, 1833, sec. 6, P. L. 249 ? When the above entry on page 81 was made,j we do not know except from its date, but we do know that it does not dispose of any of the property of the testator, and its only purpose is to carry forward the balance on page 80 for the convenience of the bookkeeper. We can say of this will as was said of the will of Elizabeth Phile Stott, by the Supreme Court in Wikoff’s Appeal, 15 Pa. 281, where the testator wrote after her signature, “ This will was commenced in the year of our Lord 1843 and added to as occasion occurred.” In speaking of these words written after the signature of the testator, the Supreme Court said: “ The matter in it bore neither on the contents of the will nor on its interpretation. It was not testamentary, and it was no more a part of the will than the label on the back of it.”
    The authorities are clear that if the testator had disposed of any part of his estate, however small, by words written after his signature, it would have invalidated the will. But such is not the fact in this will.
    Is the paper of October 25,1901, as admitted to probate, testamentary in character ? Whatever the form of the instrument is, if it vests no present interest in the donee but only appoints what is to be done after the death of the testator, it is a testamentary instrument: Turner v. Scott, 51 Pa. 126.
    Comparing the paper before us with that passed upon by the Supreme Court in Tozer v. Jackson, 164 Pa. 373, we have no doubt that it is testamentary. The interpretation of the paper is for the court. It disposes of all the testator’s personal property, and the testimony shows he had no real estate. It is clear that he did not intend to make a present gift of all his personal property, for, if he had, there is no reason why he should not have done so, instead of retaining possession for upwards of two years, and only making the entry in his private journal. He also points out in the paper the specific fund out of which his funeral expenses shall be paid, and expresses a desire as to the disposal of his body after death. Every fact surrounding the transaction shows that the property should not pass hi praesenti as a gift, but should only become effective at his death.
    As we have heretofore found, Lucius S. Beaumont, at the time he made the paper in dispute, to wit: on October 25, 1901, was domiciled in the state of New York; at the time of his death he was domiciled at Butler, Pa. The Revised Statutes of New York, title “Wills,” vol. 3, sec. 8,inter alia,provide in regard to wills : “ There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.” This provision of the law is not complied with. But it is not necessary to have attesting witnesses to a will in Pennsylvania. By the laws of which state shall this will be governed ? Does it speak from the date of its execution or from the date of the death of the testator? ^
    As early as the case of Desesbats v. Berquier, 1 Binn. 336, it was held in Pennsylvania that “ A will of personal property must be executed according to the law of the testator’s domicile at the time of his death.” The court cited many authorities to show that succession to the personal estate, whether by law or the act of the testator, is to be regulated by the law of the country in which he was a domiciled inhabitant at the time of his death, without any regard whatever to the place of birth or death, or the situation of the property at that time. So far as we have been able to find, this case has. never been overruled or-modified, and is decisive of the question now before us. It is cited with approval by Judge Denio, in Moultrie v. Hunt, 23 N. Y. 394 (court of appeals), where it is held that, The law is that the jurisdiction in which the instrument was signed and attested is of no consequence, but its validity must be determined according to the domicile of the testator at the time of his death.” Hence we conclude:
    1. That the place of domicile of Lucius - S. Beaumont at the time of his death, to wit: November 29, 1903, was’not the city and state of New York, but was the borough of Butler, Pa.
    3. The paper writing of October 25, 1901, is the valid last will and testament of Lucius S. Beaumont, deceased.
    4. That the place of domicile of Lucius S. Beaumont, deceased, on October 25, 1901, was New York city, N. Y.
    And now, October 20, 1905, the decree of the register admitting to probate the last will and testament of Lucius S. Beaumont, dated October 25, 1901, is sustained and affirmed, and the appeal from said decree is refused and dismissed at the cost of the petitioners.

      Error assigned was the decree of the court.

      T. C. Campbell, with him- Charles W. Fuller, Wm. Findlay

      January 7, 1907:

      Brown, Walter Lyon, Charles M. McKee, H. Walton Mitchell and Alex. A. Patterson, for appellants.

      Lev. MoQuistion, with, him John II. Wilson and C. L. McQuisiion, for appellee.
   Per Curiam,

Decree affirmed on the opinion of the court below.


text:
    Wilkes v. Buffalo, Rochester & Pittsburg Railway Company, Appellant.

      Negligence — Railroads—Passenger—Locomotive engineer — Master and servant.

    In an action against a railroad company to recover damages for the death of plaintiff’s husband, it appeared that the deceased prior to his death had successfully passed an examination for the position of locomotive engineer on the defendant’s railroad. Wishing to inform himself more particularly about a section of the road where the signals had been changed, he secured an employee’s pass, and written permission from the company to ride on any of the locomotives of the division. He took the trip voluntarily, and without any compensation. In the course of the journey he first rode in one of the cars, and later on took his place in the locomotive cab. While riding there, the train left the tracks owing to the negligence of the engineer in charge, and the deceased was killed. Reid, (1) that the question whether the deceased was or was not a passenger was for the jury, and (2) that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 17, 1906.
    Appeal, No. 146, Oct. T., 1906, by defendant, from judgment .of C. P. Butler Co., June T., 1905, No. 74, on verdict for plaintiff in case of Annie Wilkes v. Buffalo, Rochester & Pittsburg Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    • Verdict and judgment for $10,286-67. Defendant appealed.

      ' On a motion for a new trial and for judgment non obstante veredicto Galbiíeath, P. J., filed the following opinion:
    This suit is brought and sought to be maintained by plaintiff on the theory that the deceased, at the time of his death, was a passenger on the defendant company’s train. It was tried on the theory that whether or not he was a passenger was a question of fact for the jury, rather than one of law for the court.
    In submitting this question the jury was instructed that if the deceased, at the time he met his death, was in the actual service of the company or engaged in that which was reasonably or necessarily an incident of such service, there could be no recovery, as he would, in that event, be an employee of the company, and no recovery could be had for his death resulting from the negligence of a fellow servant. The jury was further instructed that if the deceased were not, at the time he met his death, an employee of the defendant company, then, necessarily, he was a passenger, as it was not contended that he was on the train as a trespasser, but that, even if he were there as a trespasser, yet there could be no recovery, without proof on part of the plaintiff that the deceased met death through the negligence of the defendant company, the burden of proving which, under the facts of the ease, rested on plaintiff.
    The plaintiff’s proof showed, inter alia, that the deceased had been for a number of years in the employ of the defendant company as a locomotive engineer, on various portions of its line, and that a short time prior to his death he had been employed in that capacity on the Clearfield branch of the defendant’s road, but that during the month of February, 1905, he had made a number of trips over the Pittsburg division, for the purpose of learning the road, with a view to employment on that division by assignment thereto in -the very near future, and that while making these trips he was in the pay of the defendant company; that on their completion he took the required examination' before the proper official in a satisfactory manner, and was thus qualified for his expected employment on said division of defendant’s road; that having learned that some change had been made in the signals near the Bakerstown tunnel, some seventeen miles south of Butler, on said division, after lie had made his trips over it “ learning the road,” the deceased concluded that it would be well to acquaint himself with the change at that point before assuming’ his duties as engineer on said division. Having previously passed his examination and qualified for his expected new duties, it was not required of him b}'- the defendant company that he should further prepare himself. His undertaking to do so was his own voluntary act, and it does not appear that either he or the defendant company contemplated that he should receive compensation for the performance of this self-imposed duty.
    At the time of his decease, March 11, 1905, Wilkes was in possession of an employee’s quarterly pass, good until March 31, 1905. In addition to this he had obtained from the master mechanic of defendant company at DuBois, which was the head of the Pittsburg division and the place of his residence, a special permit authorizing all Pittsburg division freight and passenger engineers to allow him to ride on their engines for the purpose of learning the Pittsburg division. This was dated March 10, 1905, was good until March 20, 1905, and was obtained, as the testimony shows, by Wilkes for the express purpose of making the trip to Bakerstown tunnel for the purpose of learning the change in signals at that point. Leaving DuBois, he rode in the passenger coach until he reached Butler Junction, a short distance north of Butler, at which place he entered the engineer's cab. The engine was in the charge of engineer Logan, who continued in charge of it up to the time of the accident, except that as the train slackened its speed in approaching the Butler station, Logan left the locomotive in charge of Wilkes, while he, Logan, went into the office to register, the train being slightly behind time at that point. Having registered, Logan again assumed charge of the engine, and, presumably in order to make up lost time, the train soon attained a quite high rate of speed, so that on reaching a certain curve about three miles south of Butler, the engine left •the track, causing the death of Wilkes. The evidence tended to show, and the jury must have found, that the train was being run at an excessive rate of speed at the time of the accident and that this was the cause of death. The plaintiff claims that her deceased husband, riding in the cab of the engine', at that time, and under the circumstances, was a passenger and not an employee; that his objective point was the Bakers-town tunnel and the trip a voluntary one on his part for which no compensation was contemplated or paid, and that the defendant company owed him the duty of safe conduct.
    On the other hand, the defendant contends that the deceased at the time he met his death, was an employee, and that this is evidenced by the fact of his employee’s pass, his special permit for the purpose of learning the road, and his presence in the engineer’s cab at the time of the accident. Neither of these positions, however, seemed to be necessarily conclusive of the case. It does not necessarily follow, we think, from the fact that the deceased was in possession of an employee’s pass at the time he met his death, that he was therefore in the defendant company’s actual service at that time, and not a passenger on its train.
    An employee’s pass might well be used by its possessor in pursuit of pleasure or other purpose wholly foreign to the service of the company.
    In fact it would not be usual for an employee in actual train service to be required to have a .pass. The nature of his duties would be his passport. It comes to a question, therefore, whether, at the time of the accident, the deceased was in the actual service of the company, performing the duties of an employee. If so, what were his duties and what was his employment? By whom had his service been assigned and to whom was he responsible for the manner of its performance ? It cannot, we think, be contended that he was at the time in the actual service of the company.. Service, too, implies compensation, but compensation for the trip in question does not seem to have been in the mind of either party. But if not in actual service of the company at the time, was he engaged in that which was a necessary incident to his employment, either present or prospective ? It is not disputed that Wilkes had fully qualified himself for the new employment to which he was looking forward. He was making the trip in question entirely of his own volition. We do not think the case is in this respect different from what it would have been had the deceased in any other respect sought to better equip himself for his new duties in point of the garb he should wear, or otherwise, and a trip was being made to the city of Pittsburg for that purpose. In neither case would the added equipment be required of him at the hands of his prospective employer, but he himself deemed it prudent to have it and set about to obtain it. This involved a trip over defendant’s railroad. His employee’s pass afforded him the opportunity of making the trip without cost to himself, which would be true in either of the above supposed cases. .Defendant’s counsel, on the argument of the question involved, admitted that if the accident had occurred while Wilkes was in the passenger coach on his way from DuBois to Butler Junction, the defendant would have been liable to him as a passenger, although traveling on an employee’s pass, and in this we think they were correct. But if he was a passenger during the first stage of his journey, notwithstanding his employee’s pass, would he not remain a passenger during the remainder of his trip, so far as the question of his pass was concerned ? Some new element would necessarily enter in to change his relation to the defendant company to that of employee. And it is at this point that the counsel for the defense contend that a new element did enter. They say that when Wilkes, at Butler Junction, left the passenger coach and entered the engineer’s cab, that by doing so he took himself out of the usual place where passengers travel and made himself an employee, and thereby deprived himself of the protection and care due a passenger.
    While the question thus presented is not free from doubt, yet it is not at all clear that the alleged result would follow his change of place. It is beyond doubt that the general rule requires passengers to ride in the places prepared for them. But this general rule is subject to modification by the supreme authority of the company. In .the present case the defendant, in the person of its master mechanic, gave Wilkes authority to ride on the engines of the Pittsburg division. It does not follow from this, we think, that it by its own act granting the deceased permission, thereby divested itself of the responsibility and consequent liability which existed and continued up to that point. He was no more in the service of the company while riding in the cab of the engine, we think, than when riding in the passenger coach. His purpose was the same all tbe while. The same degree of care would seem to be due him in the one case as in the other. He rode where he did at the various stages of the journey by authority of the defendant company. His employee’s pass permitted him to travel in the passenger coach, while the express authority of the company gave him a place in the cab of the engineer. When the company gave him permission to ride in that place, we think it assumed the duty of carrying him safely there, and was answerable for neglect in this respect.
    None of our own cases seems to. rule the case in hand in all its circumstances. Neither, in fact, does any other which has been cited to us. In their essential features the cases of State v. West Md. R. R. Co., 63 Md. 433, and Phila. & Reading R. R. Co. v. Derby, 55 U. S. 468, cited by plaintiff’s counsel, seem to more nearly resemble the case in hand.
    We are not convinced that there was error in submitting the question involved in this case to a jury, under the instructions given, including the instruction that, in order to recover, the plaintiff must prove negligence, which could not be presumed, even though Wilkes were a passenger, by reason of the stipulation indorsed on his employee’s pass: Rowdin v. Penna. R. R. Co., 208 Pa. 623.
    For the reasons herein given the motion for a new trial is refused. Also motion that judgment be.entered for the defendant, non obstante veredicto, is refused this July 9, 1906.

      Lev. McQuistion, with him F. J. Forquer, for appellant
    Wilkes was not a passenger: Penna. R. R. Co. v. Price, 96 Pa. 256; Ryan v. Cumberland Valley R. R. Co., 23 Pa. 384; Webster v. Fitchburg R. R. Co., 161 Mass. 298 (37 N. E. Repr. 165) ; Illinois Central R. R. Co. v. O’Keefe, 168 Ill. 115 (48 N. E. Repr. 294) ; Farley v. R. R. Co., 108 Fed. Repr. 14; Vandegrift v. West Jersey & R. R. Co., 71 N. J. L. 637 (60 Atl. Repr. 184) ; Eaton v. D.,. L. & W. R. R. Co., 57 N. Y. 382; Vick v. N. Y. Cent. & H. R. R. R. Co., 95 N. Y. 267; Russell v. Hudson River R. R. Co., 17 N. Y. 134; Hoar v. Maine Cent. R. R. Co., 70 Me. 65; Davis v. Chicago & R. R. Co., 45 Fed. Repr. 543.
    Assuming that deceased voluntarily and of his own motion, mounted the engine, plaintiff’s intestate could not maintain the action and binding instructions should have been given: Dietrich v. Penna. R. R. Co., 71 Pa. 432; Pitcher v. Ry. Co., 154 Pa. 560 ; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Patterson’s Ry. Acc. Law, 212; Custer v. B. & O. R. R. Co., 206 Pa. 529.
    January 7, 1907:

      John M. Greer, with him John B. Greer and Thomas H. Greer, for appellee.
    Everyone riding in a railroad car is presumed, prima facie, to be there lawfully as a passenger having paid or being liable when called upon to pay his fare, and the onus is upon the carrier to prove affirmatively that he was a trespasser: Penna. R. R. Co. v. Books, 57 Pa. 339; Creed v. Penna. R. R. Co., 86 Pa. 139.
    It was for the jury to determine whether or not deceased was a passenger: Illinois Steel Co. v. Bauman, 178 Ill. 351 (53 N. E. Repr. 107) ; Theleman v. Moeller, 73 Iowa, 108 (34 N. W. Repr. 765); Mullan v. Steamship Co., 78 Pa. 25.
    A railroad employee may be a passenger on the railroad of his employer, and even if Mr. Wilkes could be considered in the service of the defendant company as its employee after March 2d, when not on duty he could at the same time be a passenger on one of its trains: McNulty v. Penna. R. R. Co., 182 Pa. 479 ; Rowdin v. Penna. R. R. Co., 208 Pa. 623; Penna. R. R. Co. v. Books, 57 Pa. 339; Thompson v. R. R. Co., 47 La. Ann. 1107 (17 So. Repr. 503); Whitney v. R. R. Co., 50 L. R. A. 615; Ohio & Miss. R. R. Co. v. Muhling, 30 Ill. 9; Ricks v. Flynn, 196 Pa. 263.
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Per Curiam, Mr. Justice Fell,

text:
    Barnard, Appellant, v. Monongahela Natural Gas Company.

      Oil and gas lease — Adjoining lands — Exhaustion of gas.

    A landowner has a right to drill an oil or gas well on any part of his land without regard to the effect on the adjoining land.
    The only .remedy of the adjoining owner is to protect his oil by a well on his own land.
    A lessee has the same rights in this respect as his lessor. But where the same lessee holds under two adjoining lessors he may not fraudulently or evasively so drill his wells as to drain the property of one to the detriment of the other.
    Such lessee may, however, drill a well on one farm close to the line of the other and draw from the latter three-fourths of th,e gas therein, if.it appears that he also drilled a well on the latter and in good faith endeavored to develop the land in the performance of his duty.
    Argued Oct. 18, 1906.
    Appeal, No. 124, Oct. T., 1906, by plaintiffs, from decree of C. P. Washington Co., No. 1,520, in equity, dismissing bill in equity in case of Daniel Barnard and Elizabeth Barnard v. The Monongahela Natural Gas Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    . Bill in equity for an injunction and an accounting.
    McIlvaine, P. J., filed the following opinion A ^ The court finds the facts in this case to be as follows :
    1. Daniel Barnard and Elizabeth Barnard, the plaintiffs in '.’this case, are the owners in fee of a tract of land in Deemston ; borough, in this county, containing' sixty-six acres, more or 'dess.
    2. James B. Barnard owns in fee a tract of land adjoining the plaintiffs’ land and containing 156 acres.
    3. The Monongahela Natural Gas Company, a corporation in the business of producing and marketing natural gas, holds a lease on each of these farms u for the purpose and with the ex- , elusive'right of drilling and operating thereon for petroleum and gas/’^which said leases were in full force and effect when , the bill herein was filed and are yet in force and effect. 1 By the terms of these leases the Monongahela Natural Gas Company is to pay to the respective lessors a fixed sum per year for the gas from each well drilled on their or his farm “ so long as it shall be sold therefrom.”
    4. The farm of James B. Barnard joins the farm of the plaintiffs, Daniel and Elizabeth Barnard, in such a way thatjat one corner of his farm there is an angle of about twelve degrees less than a right angle, and the lines of the adjoining farm that make this angle are respectively sixty-two and seventy-five rods long, so tlia|a circle large enough to include ten acres of ground with its center at this corner would inclose less than two and one-half acres of the land of James B. Barnard and seven and one-half acres of the land of Daniel and Elizabeth Barnard.
    5. That the Monongahela Natural Gas Company, the defendant, lately drilled a well on the James B. Barnard farmjin the corner described in our previous finding which is fifty-five feet from the actual corner, andjabout thirty-five feet from either of the lines dividing the two farms, and upon the completion of said well it was found to be a paying gas well [such as to entitle the lessor to his annual rental, provided for in the lease?j This well was drilled on the location chosen after the plaintiffs had protested against it being located so near their lines.
    6. That since this well was drilled on the James B. Barnard farm the defendant company has drilled a well on the plaintiffs’ farm 1,350 feet away from the James B. Barnard welEand not far from an angle which the line of the plaintiffs’ farm and their adjoiners make, f This well when completed failed to produce any gas.
    7. A gas well in time will drain ten acres, more or less, of land and if the gas producing sand is equally porous the gas will be drawn along all the radii of a circle of which the well is the center.
    ■ 8. The Monongahela Natural Gas Company, the defendant, when it located its well on the corner of the James B. Barnard farm did not do so with intent to fraudulently deprive the plaintiffs of their rights.
    CONCLUSIONS OB' LAW.
    1. That the drilling of the well on the farm of James B. Barnard by the defendant company and taking the gas therefrom in no way invades the plaintiffs’ property rights.

      2. That .the defendant company, under all the facts of this case, is not guilty of either actual or legal fraud in that it drilled the James B. Barnard well where it did and drained gas from the plaintiffs’ farm.
    COMMENTS.
    The facts in this case are not complicated and are substantially undisputed. But the plaintiffs’ contention raises a question of law that is both novel and interesting, and if sustained by the highest court of our state would revolutionize the manner of developing oil and gas leaseholds. “ What the law ought to be ” and “ what the law is ” are different questions. The Supreme Court, ignoring the principié of stare decisis, on account of changed conditions or for any reason justifying it, may declare “ what ought to be the law ” to be henceforth “ the law,” but the lower courts have no such authority ; our duty is to follow the lead of the decisions, not to qualify, explain, modify, overrule or reverse them.
    What then are the questions of law involved in this case, and under existing decisions how must they be answered ?
    The first question stated broadly is this: “ Can a landowner in gas territory, drill a well on his farm close to the line of his adjoining landowner and draw from the land of the latter three-fourths of the gas that his well may produce without so invading the property rights of the adjoining landowner as to be legally accountable therefor.” There is no doubt that the oil and gas confined in the oil and gas-bearing sands pf a farm belong to the one who holds title to the farm,' but it is also recognized both as a question of fact and law that oil and gas are fugitive in their nature and will by reason of inherent pressure seek any opening from the.earth’s surface that may reach the sand where they are confined. Mr. Justice Wiliams, in Wettengel v. Gormley, 160 Pa. 559, in discussing this question so far as it relates to oil, says: “ It is well understood among oil operators that the fluid is deposited in a porous sand rock, at a distance ranging from 500 to 3,000 feet below the surface. This rock is saturated throughout its extent with oil and when the hard stratum overlying it is pierced by the drill the oil and gas find vent and are forced by the pressure , to which they are subject into and through the well to the surface.” “An oil or gas well may draw its product from an indefinite distance and in time exhaust a large space. Exact knowledge on this subject is not at present attainable, but the vagrant character of the mineral and the porous sand rock in which it is found and through which it moves, fully justify the general conclusion we have stated above and have led to its general adoption by practical operators.” \
    “ The right of every landowner to drill a well on his own land at whatever spot he may see fit ” certainly must be conceded. If then the landowner drills on his own land at such a spot as best subserves his purposes what is the standing of the adjoining1 landowner whose oil or gas may be drained by this well ? He certainly ought not to be allowed to stop his neighbor from developing his own farm. There is no certain way of ascertaining how much of the oil and gas that comes out of the well was when in situ under this farm and how much under that. What then has been held to be the law ? — it is this, as we understand it, every landowner or his lessee may locate his wells wherever he pleases regardless of the interests of others. He may distribute them over the whole farm or locate them only on one part of it. He may crowd the adjoining farms so as to enable him to draw the oil and gas from them. What, then can the neighbor do? Nothing, only go and do likewise. He must protect his own oil and gas. He knows it is wild and will run away if it finds an opening and it is his business to keep it at home. This may not be the best rule, but neither the legislature nor our highest court has given us any better. No doubt many thousands of dollars have been expended “ in protecting lines ” in oil and gas territory that would not have been expended if some rule had existed by which it could have been avoided. Injunction certainly is not the remedy. If so, just how far niust the landowner be from the line of his neighbor to avoid the blow of “ this strong arm of the law ” ?
    This brings us to the second question in the case, and that is this, “Will a lessee who has a lease on each of two adjoining farms be enjoined at the instance of one of the landowners from drilling a well on the farm of the other at such a point as will drain most of the gas that it produces from the land of the first? ”
    This question, has in it an element that is not in the other and that grows out of the fact the landowners have a common ' lessee. We think it is well settled that the lessee has the same rights in regard to the locating of his wells as the landowner would have if doing the operating, but he cannot take advantage of the fact that he has leases on adjoining farms so as to fraudulently deprive either of his lessors of his royalty or annual gas rental. (^The law of this position is found in Kleppner ‘ v. Lemon, 176 Pa. 502, as explained in the later cases of Colgan v. Forest Oil Co., 194 Pa. 234, and Young v. Forest Oil Co., 194 Pa. 243. '
    The drilling of the well by the defendant company at. the point they did on the James B. Barnard farm was not as we have seen a fraud per se or simply because it would, drain gas from the plaintiffs’ farm; it might become a fraud because of something other than the drilling of this well, and that would be in refusing to develop or protect the plaintiffs’ farm. ' But I it appears that the defendant company soon after they drilled a well in£“the angle” of]the James B. Barnard farm alsp located and drilled to completion a well injpr near “an angle , of the plaintiffs’ farm where'he would have gotten some of the . gas of his neighbor on the other side of his farm had it been a producing well. The fact that this well proved a dry hole in no way militates against the defendant company’s effort to do . ’ the fair thing, as between it and the plaintiffs.''¡A Well on each farm, and James B. Barnard’s farm twice as large as that of' the plaintiffs’, does not show partiality toward James B. Bar- , nard. We are clearly of the opinion thatj there was no such fraud on the part of the defendant company in the premises as, would entitle the plaintiffs to either an injunction or an accounting for damages done by draining gas from their farm through the James B. Barnard well, and therefore the plaintiffs’ bill ^should be dismissed with costs. . * » *

      Error assigned was decree dismissing the bill.
    ' Boyd Grumrine, with him E. E. Grumrine,• for appellants.
    The owner of a tract of land holding natural gas in it has a ‘ property right in the gas protected by the law, and the right to take this gas, for a compensation to the owner, will pass to a lessee of the farm for the purpose of exploring for and obtaining it: Westmoreland, etc., Natural Gas Co. v. DeWitt, 130 Pa. 235; McKnight v. Natural Gas Co., 146 Pa. 185; Wettengel v. Gormley, 160 Pa. 559 ; s. c., 184 Pa. 354; Kleppner v. Lemon, 176 Pa. 502; s. c., 197 Pa. 430.
    January 7, 1907 :
    The defendant company having exclusive control of the gas in the plaintiffs’ farm, so that the plaintiffs could not drill for it and protect themselves, and putting down the well on the adjoining tract in such location that it must drain largely from the plaintiffs’ farm, was acting fraudulently as against the plaintiffs, in making use of its opportunities of control of both farms to get the plaintiffs’ gas without paying $300 per annum for each producing w-ell put down for it: Plummer v. Coal & Iron Co., 160 Pa. 483; Kleppner v. Lemon, 176 Pa. 502; Colgan v. Oil Co., 194 Pa. 234; Young v. Forest Oil Co., 194 Pa. 243; Adams v. Stage, 18 Pa. Superior Ct. 308.
    We submit that the principle of Kleppner v. Lemon, 176 Pa. 502, controls this case.

      R. W. Irwin, with him J. A. Wiley and A. T. Morgan, for appellee, cited : Colgair v. Forest Oil Co., 194 Pa. 234; Young v. Forest Oil Co., 194 Pa. 243.
   Per Curiam, Mr. Justice Fell,

Decree affirmed on the opinion of the court below.