text:
    Pittsburg Construction Company v. West Side Belt Railroad Company, Appellant.

      Principal and surety — Guaranty—Contract—Direct liability.

    1. Where a railroad company enters into a written contract with an individual for the construction of its railroad, and thereafter the individual enters into a contract in writing with a construction company, with the consent of the railroad company, the terms of which are identical with the first contract, except as to consideration, and immediately after the signatures to the second contract the railroad company agreed in writing to “guarantee and become surety for the payment of the money mentioned in the within contract as the same becomes due and payable,” the railroad company is liable directly either as a principal or as a surety to the construction company for the moneys due it. Such an agreement can in no way be construed as a contract of guaranty on the part of the railroad company.

      Contract — Construction contract — Arbitration—Waiver.
    2. Where a railroad company and a construction company participate in an arbitration under an arbitration clause in a construction contract, and it appears that the proceeding is started by notice from the railroad company, that the investigation was exhaustive, that each side produced witnesses and cross-examined the opposing witnesses, it will be deemed as a matter of law that the railroad company waived an alleged previous final estimate made by its chief engineer, which estimate had been retained by the railroad company and never submitted to the construction company.
    3. Ordinarily the question of waiver is one of fact for the jury; but it is not always so. When the facts are undisputed it becomes a matter of legal inference. Waiver rests fundamentally on the doctrine of estoppel; but where the facts are ascertained, whether the doctrine applies is for the court to decide.

      Corporations — Foreign corporations — Registration—Act of April 22, 1874, P. L. 108, May 23, 1907, P. L. 205 — Res adjudicata.

    4. Where a foreign corporation which has not registered in Pennsylvania under the Act of April 22, 1874, P. L. 108, brings a suit in this state and judgment is entered against it, not on the merits, but on the sole ground of its failure to register, and thereafter and prior to the passage of the Act of May 23, 1907, P. L. 205, it registers, and then institutes a second suit against the same defendant, the second action is not barred by the prior judgment.
    5. When it can be gathered from the record that the merits of a controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to a second suit.
    Argued Nov. 1, 1909.
    Appeal, No. 132,
    Oct. T., 1909, by defendants, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 398, on verdict for plaintiff in case of Pittsburg Construction Company v. West Side Belt Railroad Company and Francis H. Skelding et al., Receivers.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Assumpsit upon an award of arbitrators as well as on a quantum meruit. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions forjdaintiff.
    Verdict and judgment for plaintiff for $396,471.78. Defendants appealed.

      Error assigned was in giving binding instructions for plaintiff and in refusing judgment for defendants non obstante veredicto.

      Thomas Patterson, of Patterson, Sterrett & Acheson, for appellant.
    — This suit was res adjudicata: United States v. Leffler, 36 U. S. 86; Roney v. Westlake, 216 Pa. 374.
    The final estimate made up by Douglas, the chief engineer, was conclusive: Martinsburg & P. R. R. Co. v. March, 114 U. S. 549 (5 Sup. Ct. Repr. 1035); Werneberg v. Pittsburg, 210 Pa. 267; Hartley v. Henderson, 189 Pa. 277.
    A case much like the one at bar and illustrating the principle, is that of Baltzer v. R. R. Co., 115 U. S. 634 (6 Sup. Ct. Repr. 216).
    We cite the following authorities sustaining the position that the award cannot vary or depart from the terms of the original submission: Johnston v. Brackbill, 1 Penrose & Watts, 364; Carnochan v. Christie, 24 U. S. 446; Mitchell v. Staveley, 16 East, 58.

      Samuel McClay and Edwin W. Smith, of Reed, Smith, Shaw & Beal, for appellees.
    — The railroad company was the principal debtor: Taylor v. Preston, 79 Pa. 436; Elkin v. Timlin, 151 Pa. 491; Weber v. Bishop, 12 Pa. Superior Ct. 51; Bodey v. Thackara, 143 Pa. 171.
    An award is not subject to revision by the court, unless there is an allegation and proof of bad faith, or a mistake or negligence so gross as to justify the inference of bad faith: United States v. Gleason, 175 U. S. 588 (20 Sup. Ct. Repr. 228); Martinsburg, etc., R. R. Co. v. March, 114 U. S. 549 (5 Sup. Ct. Repr. 1035); Wilson v. Wilson, 18 Col. 615 (34 Pac. Repr. 175); Hartupee v. Pittsburg, 131 Pa. 535; Lucas Coal Co. v. Canal Co., 148 Pa. 227; Bowen v. Cooper, 7 Watts, 311; McManus v. McCulloch, 6 Watts, 357; North Lebanon R. R. Co. v. McGrann, 33 Pa. 530.
    The conclusive character of a judgment extends only to identical issues, and they must be such, not merely in name, but in fact and in substance: Steele County v. Erskine, 98 Fed. Repr. 215; Palmer v. Hussey, 87 N. Y. 303; Mercer v. Watson, 1 Watts, 330; Hess v. Werts, 4 S. & R. 356; Bleakney v. Bank, 17 S. & R. 63; Wrought Iron Bridge Co. v. Town of Attica, 23 N. E. Repr. 542; Gross v. United States Mortgage Co., 108 U. S. 477 (2 Sup. Ct. Repr. 940); Richman v. Muscatine County, 77 Iowa, 513 (42 N. W. Repr. 422); Donley v. Pittsburg, 147 Pa. 348; Coleman’s App., 62 Pa. 252; New England Bank v. Lewis, 25 Mass. 113; Darlington v. Gray, 5 Wharton, 487.
   Opinion by

Mr. Justice Stewart,

February 14, 1910:

In considering this case it is necessary first of all to determine the legal relation inter se of the parties to the controversy. The defendant company, here the appellant, having determined upon an extension of its railroad, accepted the bid of one Petrie, who had been secretary of the company but had resigned to enter into new relation towards it, for the entire completion of the proposed work according to the plans and specifications prepared by the company, for the sum of $400,000 in cash, and a like amount in the mortgage bonds of the company. A formal contract was thereupon entered into between Petrie and the company by which the former engaged to construct and complete the proposed work in the manner and within the time called for by the specifications, and the latter agreed to pay for the work accordingly. This contract is dated April 25, 1901. On May 24, following, Petrie, with the consent and approval of the railroad company, entered into a written contract with the Pittsburg Construction Company, here the appellee, which contract, except as it differs with respect to the consideration to be paid for the work, is simply a transcript of the contract between Petrie and the railroad company, and was an undertaking by the construction company to do the work which Petrie by his contract with the railroad company had engaged to do, but upon which he had not entered. Immediately following the signature of the parties to this later contract this appears, “For value received the Westside Belt Company and John S. Scully and F. S. Barnsdall do hereby guarantee and become surety for the payment of the money mentioned in the within contract as the same becomes due and payable.” This is followed by a due execution by the parties named. The authority of the president of the railroad company to enter into this obligation on behalf of the company is conceded. With Scully and Barnsdall we have no present, concern; our inquiry relates only to the railroad company, and the measure of its liability. In -this action it is sought to charge it as a principal, primary debtor, notwithstanding by the written terms of the obligations, the liability expressed is that of guaranty and surety. This presents the first question for our consideration. On behalf of appellant it is claimed that the obligation it incurred was that of guarantor, and that its liability, therefore, is secondary. Much depends on the answer to be given. Assuming a secondary liability on the part of the railroad company, the argument derives conclusions most prejudicial to the construction company’s present demands, as will appear later on. The assumption, however, takes account of but a single covenant in the obligation, whereas there are two distinct covenants, one of guaranty and one of suretyship. There is no contention that the obligation is to be considered in any other way than in accordance with its express terms. It is not even suggested that the clear distinction that exists in law between the two relations of guarantor and surety was overlooked, and that all that was intended was a contract of guaranty. The assumption is palpably without warrant. Having once entered into a covenant of both guaranty and suretyship, it could not thereafter be optional with the covenantor to determine in which of the two relations it would stand; it was, however, for the other party to elect under which it would pursue its remedy for any default. As surety, the railroad company here took upon itself a direct and immediate liability. Suretyship always implies original undertaking, and the measure of liability in such case is the extent of the principal’s liability. A surety assumes to perform the contract of the principal debtor, if the latter should not, and the undertaking is immediate and direct that the act shall be done, which if not done, makes the surety responsible at once: Reigart v. White; 52 Pa. 438; Riddle v. Thompson, 104 Pa. 330; Phila. & R. R. Co. v. Knight et ah, 124 Pa. 58. If regard be had to the situation of the parties and the object they had in view, it would require no strained construction of the obligation to impose on the railroad company the obligations of a principal debtor. So far as concerns this dispute, the distinction would come to nothing, for the liability to the appellee would be the same whether principal or surety. The appellant under either contract was to pay the money. It contracted with Petrie that it would pay to him. Petrie, under his later contract with the construction company, contracted that the railroad company would pay directly to the construction company. The debt incurred in building the railroad was in either case to be paid by the railroad company. It is somewhat anomalous for one to become surety for the payment of money due from himself; and yet if we confine ourselves to the strict letter of the obligation, that is what the railroad company did in this instance. When it signed the obligation of suretyship “for the payment of the money mentioned in the within contract as the same becomes due and payable,” since the money was due from itself, it might well be argued that it was an assumption of liability as principal debtor. The subsequent dealings between the parties show very conclusively that both so understood the relations between them. We conclude on both grounds that the written contract between Petrie and the construction company is the law governing the present case, quite as much as though the appellant’s name appeared therein as a contracting party.

The contract between Petrie and the construction company, as well as the earlier contract between Petrie and the railroad company, contained the following provision: “When this agreement, in all its parts and in the manner herein provided, shall have been completely performed on the part of the contractor, and such performance shall have been accepted and so certified in writing by the said chief engineer, a final estimate of the quantity, character and value of the work done and materials furnished, according to the terms of this agreement, shall be made by the chief engineer, and thereupon and not otherwise sooner, except at its own election, the railroad company shall within thirty days thereafter pay to the said contractor .... all sums of money so certified by the said chief engineer to be then remaining due and unpaid upon the work performed under this agreement, after first deducting therefrom any and all sums herein provided to be retained by the said railroad company; it being expressly understood that such final estimate and certificate of the chief engineer shall be conclusive upon the parties.” Both contracts contained this further provision: “And it is mutually agreed and distinctly understood that the decision of the chief engineer shall be final and conclusive in any dispute that may arise between the parties to this agreement relating to or touching the same, and each and every of said parties do herein waive any right of action, suit or suits, or any other remedy in law, or otherwise by virtue of said covenant so that the decision of said Chief Engineer, James H. McRoberts, shall in the nature of an award be final and conclusive on the rights and claims of said parties.” The present action was brought to recover on an award made under the last quoted provision by the chief engineer, McRoberts, for $332,750.98 in favor of appellee as against Petrie. The document purports to be the report of an “arbiter between the Pittsburg Construction Company, subcontractor, and A. S. Petrie, contractor for West Side Belt Railroad Company.” For a correct understanding of the actual dispute a further recital of facts is here required. At the inception of the transaction, McRoberts was chief engineer. Later on as the work progressed he was made consulting engineer and H. T. Douglas was substituted as chief engineer. The work of construction was very largely in excess of what was originally contemplated. The entire work was to have been completed within a year, but eighteen months more were required, and it was not until June 11, 1903, that through the chief engineer, Douglas, the construction company was notified of its acceptance. Thereupon Douglas began preparations for making an estimate of the work done. About September 10, following, he completed his estimate, which showed there was due the construction company the sum of $82,324.03. This estimate, signed by himself and certified by the consulting engineer, McRoberts, as correctly summarized, was handed to Mr. Donnelly, the vice president of the railroad company. The day following, McRoberts obtained this estimate from Donnelly, and in the latter’s office entered upon it the following items: “ Less liquidated damages on account of nonfulfillment of contract $92,970.74.” “Over Payment on contract $14,676.71.” Thus bringing the construction company in debt in the sum of $25,323.42. McRoberts testified that he did this at the instance and request of Donnelly; and in this he is not contradicted. The day following, Donnelly submitted the award as thus amended to the counsel of the railroad company, and was advised that the items added by McRoberts did not properly fall within the purview of a final estimate, but were proper subjects for consideration and judgment by the chief engineer as arbiter; and that inasmuch as McRoberts, as chief engineer, was named as arbiter in the contract, he should be reappointed to that place. His appointment accordingly was made September 16, 1903. Immediately thereupon he served the following written notice, prepared by counsel of the railroad company, upon the construction company: “Gentlemen: I have about completed the final estimate for your work under your contract with the West Side Belt Railroad Company, and as the chief engineer mentioned in the contract, to whom has been committed the final decision of all disputes between the parties, before finally submitting the estimate to you I wish to notify you that the railroad company claims of me a deduction for credit on the final estimate of the damages sustained by the Railroad Company owing to the delay in the completion of the contract. If you wish to be heard upon this question, I will meet your representative and the representatives of the Railroad Company at my office in the Farmers Bank Building on Monday, September 21st, at 10 o’clock a. m. ; or, if this time may be inconvenient to you, upon your suggestion I will try and fix a date and place that will suit your convenience.” At the first meeting under this notice the appellant company appeared and submitted its claim for damages amounting to $96,970.74; but it nowhere appears that either then "or at any subsequent meeting appellant offered any evidence in support'of the claim. The appellee, on the other hand, submitted a claim for extra work which it alleged was not included in the estimate prepared by Douglas, amounting to nearly $300,000. It does not appear that anyone connected with the construction company up to this time had any knowledge of the estimate prepared by Douglas, and by him delivered to the vice president of the railroad company. The written notice served by McRoberts, at the instance of the railroad company, clearly implied that no final estimate had as yet been made, and that none had been completed. The arbitration thus entered upon proceeded, and both parties participated in an exhaustive investigation, both upon the items embraced in the Douglas estimate as well as other matters in dispute, without objection or protest. The thoroughness and extent of the investigation may be judged from the fact that in the fifty-two hearings that were held more than 2,000 pages of testimony were taken and 500 exhibits filed. • Each side produced witnesses, and cross-examined the opposing witnesses, touching the claim asserted .by the construction company. Upon this state of facts, undisputed, the trial judge held that there could be but one inference, namely, that both parties by common consent disregarded and ignored the Douglas estimate, and proceeded as though such paper had never existed. He accordingly directed a verdict for the plaintiff for the amount of the arbiter’s award. This ruling necessarily implied a waiver by defendant of all claim under the Douglas estimate; and the contention now made on behalf of appellant, is that this was a question of fact that the jury alone could determine. The sufficiency of the Douglas estimate to meet the requirements of the contract need not be considered except incidentally. It is quite true that ordinarily the question of waiver is one of fact for the jury; but it is not always so. When the facts are undisputed, it becomes a matter of legal inference. Waiver rests fundamentally on the doctrine of estoppel; but where the facts are ascertained whether the doctrine applies is for the court to decide: Lewis v. Carstairs, 5 W. & S. 205. The facts here relied upon as establishing a waiver are, first, the notice from McRoberts as arbiter; and, second, the active participation of the defendant without protest in an arbitration which asserted jurisdiction to make and conclude a final estimate regardless of what had been done before. The notice from McRoberts calling for the arbitration must be taken as the act of the defendant company; the demand for the arbitration came from it, and the notice was prepared by its own counsel. It contained an express acknowledgment that up to that time no final estimate had been completed, and an equally express acknowledgment that the final estimate when made was to be made by McRoberts. The language of the notice was: “I have about completed the final estimate.....Before finally submitting the estimate to you I shall,” etc. It was pursuant to this notice that the defendant company was present, through its representative, at the arbitration, submitted its claim for damages, and acquiesced without protest or objection in the jurisdiction asserted by the arbiter to hear and determine, not only all matters in dispute, but in particular such matters as were essential to the completion of a final estimate of the work done by the plaintiff company; never once asserting the Douglas estimate as a bar, or indicating any reliance upon it as the final estimate. In this connection it is to be remembered that the Douglas estimate remained in the hands of the defendant company. The fact of its existence had never been communicated to the plaintiff company, and so far as appears no copy of it was ever served upon the plaintiff company, the party best entitled to it, since as originally delivered it contained an award in its favor. Under such state of facts, about which there was no contention, it was not error in the trial judge to pronounce upon the effect of the evidence. He rightly concluded that had the case gone to the jury, and a verdict been rendered against such proofs, the court would have been bound to set it aside. “When it is the duty of a judge to control a verdict he is not to be reversed for exercising his authority in advance of the verdict, and saving thereby the delay and expense of a new trial:” Graff v. Railroad Co., 31 Pa. 489. It follows that the McRoberts award became the true measure of appellant’s liability, whether the latter be regarded as principal or surety. The assignments of error raise no question as to its sufficiency as an award under the contract between the appellee and Petrie. If sufficient under that contract, it fixes appellant’s liability. On the argument of the case, it was urged upon our attention that the arbiter in his report expressly states that in reaching his conclusions he disregarded as irrelevant some evidence and claims, which might be relevant in a final settlement between the appellant and the contractor. But we have no assignment of error challenging the sufficiency of the award as an award. When offered in evidence on the trial of the case a single objection was made to its admission, namely, that the award was “ between the plaintiff and A. S. Petrie, subcontractor, for the doing of this work, but who is not a party to this suit.” This objection was properly overruled. The appellant was a party to the inquiry before the arbiter, was duly served with notice, attended the meetings and participated in the investigation. It had all the rights Petrie would have had in making defense. The award was a common-law award, which according to the express agreement of the parties was to be “final and conclusive on the rights and claims of said parties.” Under such stipulation the parties take the hazard of mistake in the tribunal they have selected, and the award is not to be set aside for mere mistake of law or fact. “Unless the evidence offered and received in the court below tended to prove something more than mere mistake of fact or of law; unless it went to establish misbehavior on the part of the arbitrators, or the plaintiff, it was inadmissible to affect the award upon which the suit was brought:” Speer v. Bidwell, 44 Pa. 23. If appellant would derive from the admission in the report itself an inference of misconduct on the part of the arbiter, that point should have been made in the court below. The objection to the award comes too late, since we are here confined to the consideration of only what is assigned as error.

After the filing of the award, and previous to the bringing of the present action, the appellee brought suit in the United States circuit court for the western district of Pennsylvania, against the West Side Belt Railroad Company, John S. Scully and Theodore N. Barnsdall, for the recovery of the amount of the award, in which action it was sought to charge the parties named on their contract of guaranty and suretyship. A verdict was directed for the plaintiff for the full amount of the award, subject to the court’s decision on a point reserved. Subsequently judgment non obstante was entered for the defendants. It appeared on the trial that the plaintiff was a West Virginia corporation chartered May, 1901, and that its contract with Petrie had been entered into May 24, 1901, whereas the corporation had not been registered in this state until June 15, following. This sufficiently indicates the point reserved. Our Act of assembly of April 22, 1874, P. L. 108, provides that it shall not be lawful for any such [foreign] corporation to do any business in the commonwealth until it shall have filed in the office of the secretary of the commonwealth a statement under the seal of the said corporation, and signed by the president or secretary thereof, showing the title and object of said corporation, the location of its office or offices, and the name or names of its authorized agent or agents therein; and that the certificate of the secretary of the commonwealth, under the seal of the commonwealth, of the fifing of such statement shall be preserved for public inspection by each of said agents in each and every of such offices. Because of the admitted failure of the plaintiff company to comply with the provisions of this act before entering into the contract, the court held that there could be no recovery on the contract. The judgment rendered was as follows: “Judgment therefore will be entered in favor of the defendant non obstante veredicto, but such judgment shall not bar, in subsequent suit or proceeding by the plaintiff for services performed.” On appeal, the judgment, saving the right of plaintiff to bring an action on a quantum meruit for work done, was affirmed by the United States circuit court of appeals. The record of that case was pleaded in bar in this. In reply plaintiff invoked the Act of May 23,1907, P. L. 205, which provides: “That whenever any corporation, organized and existing under the laws of any other state and doing business within this commonwealth, shall have heretofore entered into any contract, bond or obligation with any person, firm or corporation, without having first established a known place or places of business and designated an authorized agent or agents for the transaction of its business in this commonwealth, the said contract, bond or obligation shall be binding upon the parties thereto and such corporation may enforce the same in the courts of this commonwealth; provided, that it has subsequently, and prior to the passage of this act, complied with the laws of this commonwealth by establishing a known place or places of business and designated an authorized agent or agents for the transaction of its business within the same; and provided further, that it shall, before commencing any suit upon such contract, bond or obligation pay all taxes that would have accrued to the commonwealth of Pennsylvania if it had complied with the laws of Pennsylvania at the time of beginning to do business therein.” The plaintiff’s full compliance with all that is required under this act was shown. The court held that the present action was not barred by the judgment in the cii’cuit court. We are of opinion that the ruling was correct. We may concede that so far as concerns the appellant here the parties were the same, and that the cause of action was the same in both suits; but it remains true nevertheless that the adjudication of the circuit court of the United States was not on the merits of the case. The judgment there clearly and certainly discloses this much. It is based exclusively on the plaintiff’s disability to maintain the action because of its failure to register within the state before the contract sued upon was entered into; it expressly reserves to the plaintiff the right to sue for services performed. “The judgment must be upon the merits; if the real merits of the action are not decided in the prior judgment, it is no bar:” Herman on Estoppel, 278. Our own cases have uniformly recognized the doctrine here asserted. In Carmony v. Hoober, 5 Pa. 305, it is said: “The maxim which forbids a second judicial agitation of rem judicatam by the same parties or their privies, is one of essential consequence in its application, and therefore to be rigidly adhered to within the bounds that have been assigned to it. But we think it has never been carried to the verge to which the learned judge before whom the cause was tried has pushed it in the present instance. On the contrary, it has been held an acknowledged principle, that when it can be gathered from the record, the merits of the controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to the second suit; for, as was observed by a very eminent jurist, in such case the argument that the causes of action were the same is virtually negatived. (Per Story, J., in Hughes v. Blake, 1 Mason, 515.) This exception to the maxim invoked by the defendant in error, if indeed it can strictly be called an exception, since it assumes the character of a general rule, is almost, if not altogether, coexistent with the rule itself. . . . The rule is the same if the first cause went off because the court had not jurisdiction, or because the debt or duty sued for was not then due: Estill v. Taul, 10 Tenn. 466; or, as was determined by this court in Kane v. Fisher, 2 Watts, 246, where the record shows that part of a demand, consisting of several articles capable of being separated, was not due, though counted for at the time of suit brought. But approaching somewhat nearer to the precise point presented for adjudication by the case at bar, it will be found that when it appears the first suit was prematurely commenced no advantage can be taken of a judgment rendered therein against the plaintiff, unless indeed it be shown the parties waived the irregularity and consented to an investigation of merits. Thus it has been correctly decided that a judgment rendered in favor of the defendant, in an action against the indorser of a promissory note, brought before notice given, cannot be set up as a bar to a second action after notice, because it is apparent that in the first suit the plaintiff had no cause of action: New England Bank v. Lewis, 25 Mass. 113. Many similar cases might be cited, all proceeding on the ground that where the merits of the second suit were necessarily excluded in the former, the plaintiff ought not to be barred.' Indeed, a contrary rule would be founded in such rank injustice as to be insupportable, and had such an one been even entertained in the earlier ages of the law, when reason and truth were but too often made to give way before the fancied force of technical subtleties and hair-drawn distinctions, it must long since have succumbed to the enlightened wisdom which tolerates litigation only as a means of administering uniform justice.” In Coleman’s App., 62 Pa. 252, it is said by Sharswood, J.: “Whenever a judgment is relied on for this purpose, it is competent for the adverse party to show that the particular point was not adjudicated, if in law, it could have been rendered upon any other. . . . The principle is well stated by Mr. Justice Nelson in Washington, etc., Steam Packet Company v. Sickles, 72 U.-S. 580: 'As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, where the judgment is used in pleading as a technical estoppel or is relied on by way of evidence as conclusive, per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined — that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered to have settled that matter as to all future actions between the parties; and further, in cases in which the record itself doesmot show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact, but even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be conclusive.’ ” Haws v. Tiernan, 53 Pa. 192; Follansbee v. Walker, 74 Pa. 306; Weigley v. Coffman, 144 Pa. 489, are among our own cases which are to the same effect. The prior adjudication settled nothing with respect to the merits of this case; all that was there adjudicated was the plaintiff’s right to maintain its action as an unregistered foreign corporation. Wherein does the present case differ from the case of Bank v. Lewis, 25 Mass. 113, approvingly cited by Bell, J., in Carmony v. Hoober, 5 Pa. 305, in which it was held that a judgment rendered in favor of a defendant in an action against the indorser of a promissory note brought before notice given, cannot be set up as a bar to a second action after notice, because it was apparent that in the first suit plaintiff had no cause of action? The case of Roney v. Westlake, 216 Pa. 374, so much relied upon by appellant’s counsel as sustaining a different view, conflicts in no respect with the cases we have cited. That case decided that a verdict and judgment in favor of a defendant in an action on a promissory note which was not stamped with an internal revenue stamp is res judicata as to a subsequent action between the same parties on the same note after a revenue stamp had been placed thereon. The ground on which the decision was rested was that in the first action because of express provision in the act of congress disqualifying unstamped instruments as matters of evidence, the note itself not being admissible, the plaintiff was without competent evidence to establish his claim, and having submitted his claim to the jury and permitted a verdict and judgment to go against him, he was concluded because the verdict was the result of failure to establish the claim by competent evidence. Our Brother Mestkezat, in his opinion in that case, clearly marks the distinction that is to be observed. He says: “The case in hand must be distinguished from that class of cases where the judgment set up in bar of the second action is not upon the merits of the question involved in litigation. Those cases are where the judgment is founded upon a lack of jurisdiction, a nonjoinder or misjoinder of parties, plaintiff or defendant, a misconception of the form of pleading, a formal or technical defect in the pleadings, or the like: 24 Am. & Eng. Ency. of Law (2d ed.), 794; or where the suit is discontinued, the plaintiff becomes nonsuit, the debt is not yet due, or there is a temporary disability of the plaintiff to sue: 1 Greenleaf on Evidence, secs. 529, 530; Weigley v. Coffman, 144 Pa. 489. Judgments in those cases are not obtained upon the merits, and hence are not a bar to another action.” The effect of the act of May 23, 1907, was to remove the impediment created by the prior act to the enforcement of the contract, and the plaintiff at once acquired the right to maintain an action thereon.

. It is unnecessary to pursue the inquiry further. The plaintiff having complied with all the provisions of the act of 1874, it was in position to enforce by action at law the contract between it and the defendant. In what we have said the several assignments of error have all been considered. They are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Commonwealth v. Aston, Appellant
    (No. 1).
    ' ¡Criminal law — Murder—Premeditation—Burglary — Robbery — Evidence.

    1. Where on the trial of an indictment for murder, it appears that the killing resulted from an attempt to commit a robbery or burglary, there is' ho burden on the commonwealth to establish by evidence a willful, deliberate and premeditated design to take life.

      Criminal law — Murder—Evidence—Good refutation.

    2. Evidence of good character is always admissible on the trial of an indictment for murder, and must be weighed and considered by the jury in connection with the other testimony in the ease, and is to be regarded as evidence of a substantive fact like any other evidence tending to establish innocence. In some instances it may of itself create the reasonable doubt which will entitle the accused to an acquittal; but it ■ does hot of itself raise a distinct issue.
    Argued Jan. 3, 1910.
    Appeal, No. 329,
    Jan. T., 1910, by defendant, from judgment of O. & T. Lancaster Co., April Sessions, 1909, No. 21, on verdict of guilty of murder of the ■first degree in case of Commonwealth v. Walter W. Aston.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart-and Moschzisker, JJ.
    Affirmed.

      Indictment for murder. Before Hasslek, J.
    At the trial it appeared that the prisoners, Walter W. Aston, Benjamin Aston and Paul Fornwalt were indicted for the murder of Alfred Hallman on January 31, 1909. The evidence showed that the killing occurred while the prisoners were engaged in a burglary.
    The defendant presented the following point:
    10. In Pennsylvania, the crime of murder is distinguished into two grades, to wit, murder of the first degree and murder of the second degree. The presumption of murder never rises higher than murder in the second degree. There is no presumption of murder in the first degree, and, in order to allow a conviction of murder in the first degree, the commonwealth must prove, beyond a reasonable doubt, that the defendant has been guilty of murder in the first degree, and, in order to convict of murder in the first degree, there must be a deliberate intent on the part of the defendant to kill, and, also, he must have sufficient mind to comprehend the nature of the act at the time of the killing. Answer: We refuse this point for the reason that in all cases there need not be a deliberate intent on the part of the defendant to kill to make it a case of first degree murder. If the murder occurred in the commission or the attempt to commit robbery, arson, rape or burglary, or by poison it is murder in the first degree, regardless of whether the person charged with it has formed the intent to kill or not. [1]
    The court charged, inter alia, as follows:
    [And as the killing of Alfred Hallman occurred in the commission of an offense which he had premeditated and deliberated upon and formed a specific intent to commit, the intent of killing Alfred Hallman is not a vital question in this case.] [2]
    Defendant presented this point:
    8. Evidence of good character is material and substantive evidence in the cause, and may, of itself, reduce the crime from murder in the first degree to murder in the second degree. Answer: This point we affirm. We have already said that to you. We explain, however, that you must consider the evidence of character in connection with all the other testimony in the case. It does not raise a distinct issue. If after considering it all you are satisfied beyond a reasonable doubt that the defendant is guilty of either murder in the first or murder in the second degree, you will say so by your verdict, for the fact that a man has previously borne a good character, and that fact having been given due consideration by you, is no reason why he should go free if he has been proven guilty beyond a reasonable doubt. [3]
    The court charged, inter alia, as follows:
    [Evidence of reputation does not present a distinct issue. It is to be considered by you in connection with all the other evidence in the case in passing upon the general issue. If upon consideration of the evidence of good reputation in connection with the other evidence in the case you are satisfied beyond a reasonable doubt of the guilt of the defendant, it is your duty to convict. When a man notwithstanding the fact that he previously had a good reputation, and giving that fact due weight, has been clearly proven guilty, he is not to go free simply because of his former good reputation.] [4]
    Defendant presented these points:
    2. In order to convict the defendant of murder in the first degree, the jury must find from the evidence, beyond a reasonable doubt, that the defendant deliberately conceived the idea of killing the decedent; that he meditated upon the thought of taking his life, and then upon a deliberately formed determination proceeded to commit the act. Answer: Refused. [5]
    3. That in order to convict of murder in the first degree, the jury must find from the evidence in the case, beyond a reasonable doubt, that the mind of the defendant was not so affected by reason of drunkenness as to be incapable of such deliberate premeditation as is necessary to constitute murder in the first degree. Answer: Refused. [6]
    4. To constitute proof beyond a reasonable doubt, such as will justify a conviction of murder in the first degree, the evidence must produce an abiding conviction in the minds of the jury, to a moral certainty, not only that Walter W. Aston fired the shot that caused the death of Alfred Hallman, but that his mind was sufficiently clear and unbeclouded by drink to be able to form a willful, deliberate and premeditated design to kill, and that he did form such design. Answer: Refused. [7]
    5. That in order to form a willful, deliberate and premeditated design to kill, the jury must believe from the evidence in the cause, beyond a reasonable doubt, that the mind of Walter W. Aston was conscious of the real nature of its purpose, and of the act of killing the decedent, and was capable of resisting the impulse to perpetrate the crime. Answer: Refused. [8]
    6. If the jury do not find from the evidence in the cause, beyond a reasonable doubt, that there was a willful, deliberate and premeditated design on the part of Walter W. Aston to take the life of Alfred Hallman, then the grade of the offense cannot rise higher than murder in the second degree. Answer: Refused. [9]
    7. That if the jury find that the defendant was at the time of the killing, excited by any degree of drunkenness, which produced a state of mind unfavorable to deliberation and premeditation, although not so excessive as to render him incapable of forming a deliberate purpose, this condition of mind must be taken into consideration by them in determining whether the killing was done with deliberation and premeditation. Answer: Refused. [10]

      Errors assigned were (1-10) above instructions, quoting them.

      Charles G. Baker and B. F. Davis, for appellant.

      J. W. Johnson, district attorney, and B. C. Atlee, with them Sumner V. Hosterman, assistant district attorney, for appellee.
   Opinion by

Mr. Justice Elkin,

February 14, 1910:

All of the questions raised by the assignments of error were fully considered and disposed of by the learned trial judge in an opinion filed when the motion for a new trial was refused. Little, if anything, can be added to what the court below has so well stated in a comprehensive review of the facts and the law as presented at the trial. It is not necessary to discuss the several assignments of error because they are without substantial merit under the facts of the case and the law applicable-thereto, as is clearly demonstrated in the opinion of the learned trial judge. As to the point that the trial judge erred in refusing to charge the jury that the burden was on the commonwealth to establish by evidence a willful, deliberate and premeditated design to take life, it need only be said that the killing in the present case resulted from an attempt to commit a robbery or burglary, and in such cases questions of deliberation and premeditation with intent to kill do not arise.

It is earnestly contended that the trial judge erred in instructing the jury as to the effect of the evidence offered to show previous good reputation, and that the instruction of the court disregarded the rule of our cases relating to evidence of this character. Com. v. Cate, 220 Pa. 138, and Com. v. House, 223 Pa. 487, are relied on to sustain this contention. In answer it may be said that these cases announce no new doctrine nor were they intended as a departure from the long-established rule applicable to evidence of good character in the trial of criminal cases. In Commonwealth v. Cate, the trial judge substantially instructed the jury that evidence of good character might be disregarded if from the other evidence in the case they were satisfied of the guilt of the defendant. This court held the instruction to be erroneous because such testimony is always admissible and is to be weighed and considered as evidence of a substantive fact and should be so regarded by both court and jury. In Commonwealth v. House, the facts were peculiar and the whole case turned on the identification of the defendant, who denied that he committed the crime charged or that he was near the place when the crime was committed. He was a stranger in the community, was by profession a teacher, did not know the woman who was stabbed on a public street, and no motive was shown for the act committed. The evidence of identification was conflicting and doubtful. The defendant stood alone upon his own testimony and that of a number of representative and reputable persons who were called as witnesses to prove good reputation. It was a case in which the defendant was entitled to the benefit of the full weight of this kind of evidence. On review this court was of opinion that under the instruction of the trial judge the testimony showing good character was not treated as evidence of a substantive fact which in a proper case might entitle the accused to an acquittal. For this and other reasons stated in the opinion there was a reversal. These cases were ruled on their own particular facts and were not intended to and did not modify or change the rule of the earlier cases. The rule of all the cases is that evidence of good character is always admissible and must be weighed and considered by the jury in connection with the other testimony in the case, and is to be regarded as evidence of a substantive fact like any other evidence tending to establish innocence. In some instances it may of itself create the reasonable doubt which will entitle the accused to an acquittal. In this view of the law, and there is no other, the learned trial judge was clearly within the rule in his answer to the defendant’s eighth point which is made the third assignment of error. The jury were instructed that evidence of good character must be considered in connection with all the other testimony in the case, but that it did not raise a distinct issue and in no case has it ever been held that it did raise a distinct issue. The defendant was given the benefit of his evidence of good character, and there is nothing in this record about which he can justly complain.

Assignments of error overruled, judgment affirmed and it is ordered that the record be remitted to the court of oyer and terminer of Lancaster county for the purpose of execution.


text:
    Commonwealth v. Aston, Appellant
    (No. 2).

      Criminal law — Murder—Evidence—Denial of accusation.

      1. When one charged with a crime is at full liberty to speak, although in custody, but remains silent, and makes no denial of the accusation by word or gesture, his silence is a circumstance to be taken into consideration by the jury.

      Criminal law — Murder—Evidence—Confession.
    2. To exclude a voluntary confession of guilt some inducement must be held out to prompt to falsehood, and of this the trial court must be the judge in the first instance. If the defendant produces witnesses who testify that the confession was not voluntarily made, the question as to whether it was voluntary is for the jury.
    Submitted Jan. 3, 1910.
    Appeal, No. 330,
    Jan. T., 1910, by defendant, from judgment of O. & T. Lancaster Co., April Sessions, 1909, No. 21, on verdict of guilty of murder of the first degree in case of Commonwealth v. Benjamin Aston.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed'.
    Indictment for murder. Before Hassler, J.
    At the trial the court admitted under objection and exception a statement of Paul Fornwalt, a codefendant, made in the presence of the appellant while the latter was in custody. [3]
    The court also admitted under objection and exception the confession of the prisoner. [4]
    Defendant presented these points:
    4. The confession, of the defendant is not sufficient in itself to convict, unless there are such intrinsic, corroborative circumstances proved, as will when taken into connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond a reasonable doubt. Answer: This point we refuse. If the corpus delicti, that is, the crime itself, that is, the actual killing of Alfred Hallman, is proven to your satisfaction, and you believe the confessions made by the defendant that he was one of the parties who took part in the robbery, or planned the robbery, that he was at the house, and there is no other testimony to show it, that of itself would be sufficient to convict the defendant, and that statement of his would need no corroboration to justify you in such conviction. [1]
    6. Under the law, the jury cannot convict Benjamin Aston upon the testimony or confession of Paul Fornwalt, an accomplice, unless such testimony or confession is corroborated in some material points. Answer: This point we refuse. It is not the law in Pennsylvania that a person cannot be convicted upon the uncorroborated testimony of an accomplice, though it is the duty of the court to caution the jury that such testimony should be taken with allowance. But the question does not arise in this case, as Paul Fornwalt has not testified at all, and what he said in the presence of the defendant at the police station on February 3, and which was testified to you by Mr. Eshleman, the stenographer, does little, if anything, to connect the defendant with the offense charged, and the defendant has affirmed that some at least of what was said in that statement was true. [2]
    The jury returned a verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.
    On a motion for a new trial Hassler, J., filed an opinion the material portions of which were as follows:
    The fourth reason is that we erred in admitting the confession of Paul Fornwalt, made in defendant’s presence, because he was not present voluntarily when the Fornwalt confession was read.
    It is not a question whether he was there voluntarily or not but only whether he was at full liberty to speak. In Com. v. Zorambo, 205 Pa. 109, the rule is stated, when one, charged with a crime, is at full liberty to speak but remains silent and makes no denial of the accusation by word or gesture, his silence is a circumstance to be taken into consideration by the jury. In Com. v. Johnson, 213 Pa. 607, it is decided that statements made, in the presence of one accused of crime, can be put in evidence against him, only, when his silence, under the circumstances, is ground for the inference of his assent to their correctness.

      On the morning after his arrest the defendant and Paul Fornwalt were brought up to the room of the chief of police, in the police station, in this city. Fornwalt made a confession in the presence of the defendant, in which he (the defendant) was charged with having been one of the parties to conceive and commit the offense charged in this case. The defendant was at perfect liberty to speak, even though he was in custody, and he did so. In speaking, however, he did not deny the truth of what Fornwalt said, but said that what he said about the whisky was true, and then gave his version of the whole affair, which confirmed much of what had been said by Fornwalt in his presence. Under such circumstances we do not think that the objection to the admission of Fornwalt’s statement can be seriously made.
    The fifth reason is that we erred in admitting the defendant’s confession for the reason that it was shown that said confession was not made voluntarily.
    The testimony did not show that it was not, as is alleged, but, on the contrary, did show that it was made voluntarily. It is said in Fife v. Com., 29 Pa. 429, on the question of whether a confession is voluntary or not, “The true point for consideration is, whether the prisoner has falsely declared himself guilty of a capital crime: Com. v. Dillon, 4 Dall. 116. In deciding this point the chief question is, whether the inducement held out was calculated to make the confession an untrue one. If not, it will be admissible: Wh. C. L. 318; Arch. C. P. (9th ed.) 110; 2 Rus. C. L. 845; Rex v. Thomas, 7 C. & P. 345. This is a question of fact to be determined, in the first instance, by the court.” This is followed in Com. v. Johnson, 162 Pa. 63, and in Com. v. Johnson, 217 Pa. 77, in both of which it is said, “To exclude a voluntary confession of guilt, some inducement must be held out to prompt to falsehood, and of this the trial court must be the judge in the first instance.”
    The defendant said he was intoxicated the night he was arrested. Several witnesses contradict him. He says he felt pretty bad and nervous next morning. He said he did not recollect making a statement in the evening, but does' remember that he made one the next morning, and admits that he said some of the things which appear in the latter statement, but that, if he did state all that is contained in it, it was not true. Both statements- agree in all particulars, though the one made in the morning was more full. There was no evidence to show that any threat or inducement was made to lead him to make a false confession. On the other hand, it was testified that none had been, but that the confessions were voluntary, and, in addition, he was told in the evening, that no one present had any authority to hold out to him any promise that he would not have to suffer the penalty for his connection with the affair. He hesitated a moment, and then made a statement of his connection with it, and followed it up the next morning with another to the same effect, stating some things that were omitted in the one of the evening before.
    In passing upon the admissibility of a confession, when it is alleged not to have been made voluntarily, the court only hears the commonwealth’s witnesses, though the defendant may cross-examine them. If, by them, it is shown, as it was shown here, that it was made voluntarily, without such threat or inducement as might secure a false confession, it must be admitted. If afterwards the defendant testifies, or produces other witnesses who testify, that it was not voluntarily made, it becomes a question for the jury, and the court must tell the jury that they must reject it if they do not believe, from all the testimony, that it was made voluntarily: Com. v. Shew, 190 Pa. 23; Com. v. Epps, 193 Pa. 512. This we did, following these cases to the letter.

      Errors assigned were (1, 2) above instructions, quoting them; (3, 4) rulings on evidence, quoting the bill of exceptions.

      E. M. Gilbert and M. G. Schaeffer, for appellant.

      J. W. Johnson, district attorney, B. C. Atlee and Sumner V. Hosterman, assistant district attorney, for appellee.
   Opinion by

Mr. Justice Elkin,

February 14, 1910:

The assignments of error are without any substantial merit under the facts developed at the trial. All of the questions raised by this appeal were fully considered and properly disposed of by the learned trial judge upon the motion for a new trial. The opinion filed when the motion for a new trial was refused amply sustains the correctness of every ruling made and principle of law laid down during the course of the trial. We can add nothing of value by further discussion of the same questions raised here. As to the confession of the defendant, as well as the confession of Paul Fornwalt, and whether they were made voluntarily, or whether appellant was voluntarily present when Fornwalt made his statement, the reasons given by the court below in the opinion filed fully and convincingly sustain every position taken by the trial judge about which complaint is made. The appellant had a fair and impartial trial under the law, and no unbiased person who reads this record can have any doubt that the verdict was rendered in accordance with the evidence.

Assignments of error overruled, judgment affirmed and record remitted to the court of oyer and terminer of Lancaster county for the purpose of execution.


author: Mr. Justice Brown,

text:
    Commonwealth v. Hoover, Appellant.

      Criminal law — Murder—Misconduct of spectators.

      A judgment of guilty of murder of the first degree will be reversed where it appears that the trial judge permitted, without interfering, the spectators in the court room to make frequent, open, manifest and hostile demonstrations towards the prisoner in evident disapproval of the nature and character of his defense, and for the evident purpose of influencing the conduct of the jury to the prejudice of the right of the prisoner to a fair and impartial trial.
    Argued Jan. 3, 1910.
    Appeal, No. 331,
    Jan. T., 1909, by defendant, from judgment of O. & T. Crawford Co., Feb. T., 1909, No. 19, on verdict of guilty of murder of the first degree in case of Commonwealth' v. Alton V. Hoover.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Indictment for murder. Before Prather, P. J.
    The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Error assigned amongst others was (31) refusal of new trial.

      Frank J. Thomas and Wesley B. Best, with them George F. Davenport, for appellant.

      O. Clare Kent and Thomas C. Cochran, for appellee.
   Opinion by

Mr. Justice Brown,

February 14,1910:

Insanity was the sole defense of the appellant, who, on his trial in the court below, was convicted of murder of the first degree. The spectators in the crowded court room in which he was tried were hostile to him, frequently exhibiting their hostility and their disapproval of the defense made for him by his counsel. Most unseemly scenes were enacted where respectful silence on the part of the audience ought to have prevailed, in view of the solemnity of what was transpiring before them. Though outside the court room exhibitions of hostility towards the prisoner may have been beyond the control of the court, within the court room such exhibitions were under its control and should not have been tolerated for a moment. The trial judge, of his own motion, should have suppressed the first outburst and not permitted the trial to proceed until an effort had been made to discover every offender for the pur-. pose of punishing him for his indecency and palpable attempt to influence the jury in the very presence of the court; and, upon failure to discover the offenders, the court room should have been cleared of all mere spectators.

In the motion for a new trial it is averred that during the course of the trial there came frequently from the many spectators in the court room open, manifest and hostile demonstrations towards the defendant and in evident disapproval of the nature and character of the defense made for him and of the conduct of his counsel and witnesses; that these demonstrations, so made in the presence of the court and jury, were for the evident purpose of influencing the conduct of the jury to the prejudice of the right of the defendant to a fair and impartial trial; and that, although there were many such demonstrations, they were not suppressed by the court, and not even a reprimand was given until they had been often repeated. As to these averments the trial judge says in his opinion overruling the motion for a new trial: “A mass of testimony was taken which tends to show that the defendant was surrounded by a hostile crowd of spectators during the trial, who gave unnumbered demonstrations of hostility to him and his defense, by hissing, sneering, catcalling, groans and murmurs of disapproval. Testimony similar in volume was taken which tends to disprove any such'condition.” As we must review the alleged abuse of the court’s discretion in refusing to grant a new trial for the foregoing reasons assigned by counsel for the prisoner, we have read the depositions taken in connection with the motion for a new trial and regret to be compelled to conclude that the testimony taken in support of the motion not only tends to show, but actually does show, the existence of the deplorable condition stated by the trial judge; and, from the testimony on the part of the commonwealth in opposition to the motion, there are to be gathered repeated admissions corroborating the testimony of the witnesses for the defendant. But a single illustration of this need be given. The tipstaves, whose duty it was to preserve order in the court room, were called by the commonwealth, but even from them there came admissions of the gross misconduct complained of, one of them admitting that at a certain stage of the trial the noise of whistling, shouting and laughing was so great that it might have been heard out on the street. The trial judge, however, feeling that he was “ endowed with a normal faculty of hearing,” deemed it unnecessary to review the testimony and relied upon his own recollection that no great disorder had occurred during the trial on the part of the audience in • exhibiting their hostility to the prisoner and their disapproval of the defense of insanity. He does admit, however, that “there was some disorder. There were two occasions when part of the audience gave audible dissension from or disapproval of the defense of insanity. . . . The occasion of the first indecorum was when Mr. Thomas, counsel for the defendant, first announced the defense of insanity.” This misconduct on the part of the audience, admitted to have taken place by the trial judge, was, as is gathered from the testimony, that, as counsel for the defense opened the case to the jury and stated that the defense would be insanity, there came at once “ hissing and signs of disapproval from the entire audience.” While the trial judge admits that this conduct was wholly improper and should not have been tolerated, he failed to even reprimand the audience. The second admitted scene of disorder was when an expert was testifying that the prisoner was insane. The audience sneered and snickered. On this occasion there was a reprimand from the court; but the audience remained, and later on there was another “regrettable occurrence” — termed by the court the Brockway incident — when, according to the court’s finding, the spectators whistled, laughed, stamped their feet and clapped their hands. This scene resulted from an answer given by a witness for the commonwealth to a question asked by one of the counsel for the defendant.

It is needless to comment further upon the scenes of disorder at the prisoner’s trial than to say that the jury sat in judgment upon him in an atmosphere polluted by the breath of hostile public sentiment, which had no right to breathe in the court room. The right of the prisoner was to be tried there decently and in order, as if there was no public sentiment against him, and the duty of the court was to see that he was so tried; but he was not. A resentful and jeering audience treated his only defense with open contempt and ridicule, with the evident purpose of trying to influence the jury against him. Our imperative duty is to direct that he be tried again. We have not been convinced of any other reversible error. The thirty-first assignment is sustained and the judgment reversed with a venire facias de novo.


author: Per Curiam,

text:
    Marino, Appellant, v. Hartford Fire Insurance Company.

      Insurance — Fire insurance — Time for suit — Proofs of loss.

    Where a fire insurance company objects to proofs of loss for perfectly valid reasons, which are specifically stated, and the insured furnishes supplemental proofs to meet the objections, a suit is prematurely brought forty-nine days after the supplemental proofs have been furnished, where the policy provides that the loss shall not be payable until sixty days after satisfactory proofs have been received by the company.
    Argued Jan. 3, 1910.
    Appeal, No. 108,
    Jan. T., 1909, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 2,273, for defendant non obstante veredicto in case of Carmini Marino v. Hartford Fire Insurance Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.'
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Kinsey, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff for $1,610. The court subsequently entered judgment for defendant non obstante veredicto.

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

      Joseph S. Goodbread, with him J. Joseph Stratton, for appellant.

      Frank R. Shattuck, for appellee.
   Per Curiam,

February 14,1910:

■This appeal is from a judgment entered for the defendant non obstante veredicto on the ground that the action had been prematurely brought. By the terms of the policy of fire insurance on which the action was based, the loss was not payable until sixty days after satisfactory proofs had been received by the defendant. The fire occurred in February, and a few days thereafter a paper on which was written a list of articles of merchandise, but which was without a heading or signature or any words to indicate what it had reference to, was sent to the defendant’s office. Nothing that could be considered as intended as a proof of loss within the requirements of the policy, was furnished until April 23. The formal proof then furnished was objected to because of the failure to state therein the purpose for which the building was occupied at the time of the fire, and to attach the certificate of a magistrate as required by the policy, and the specific grounds of objection were clearly stated. Supplemental proofs were furnished on May 17, and suit was brought forty-nine days thereafter.

The objection to the proof of April 23 was not capricious but was well founded, because of the failure of the plaintiff to comply with the plainly printed conditions of his policy, and there was no waiver. The justice of the demand for the supplemental proof was recognized by the plaintiff, who did not stand on the first formal proof, and until it was furnished there was not a compliance with the conditions of the policy, and until sixty days thereafter there was no right of action: Commercial Union Assurance Co. v. Hocking, 115 Pa. 407.

The judgment is affirmed.


author: Mr. Chief Justice Fell,

text:
    Collins v. Philadelphia, Appellant.

      Negligence — Municipalities—Girl on roller skates.

    1. The measure of a city’s duty is to keep its sidewalks safe for ordinary requirements only and it is under no obligation to provide pavements safe for roller skating, but the fact that an injured person was on roller skates does not affect the question of liability for the injuries sustained in a fall caused by a defect in the pavement unless the accident was due to the fact of being on roller skates.
    2. In an action by a girl fifteen years of age against a city, to recover damages for personal injuries it appeared that the plaintiff was returning on roller skates at night on the sidewalk of a dimly lighted street from a playground to her home. The sidewalk was only four feet wide between the house steps and the curb. Sixteen inches from the curb there was a box extending from the paved surface down to a stopcock in a water pipe. The lid of this box had been off for three months, leaving an opening six inches square and eighteen inches deep. The front wheel of the plaintiff’s skate and her foot to the instep went down into the opening, causing a fall that resulted in permanent injuries of a serious nature. Held, that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 4, 1910.
    Appeal, No. 129,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1907, No. 4,628, on verdict for plaintiffs in case of Catharine Collins, by her next friend and father, Patrick Collins, and Patrick Collins in his own right v. City of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for Catharine Collins for $7,500, and for Patrick Collins for $2,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Robert Brannan, assistant city solicitor, with him Frederick Beyer, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellant.

      Thomas A. Fahy, with him Walter T. Fahy, for appellees.
   Opinion by

Mr. Chief Justice Fell,

February 14,1910:

One of the plaintiffs, a girl fifteen years of age, on roller skates, was returning at night on the sidewalk of a dimly lighted street from a playground to her home. The sidewalk was only four feet wide between the housesteps and the curb. Sixteen inches from the curb there was a box extending from the paved surface down to a stopcock in a water pipe. The lid of this box had been off for three months, leaving an opening six inches square and eighteen inches deep. The front wheels of the plaintiff’s skate and her foot to the instep went down into the opening, causing a fall that resulted in permanent injuries of a serious nature.

In determining the liability of the city it should be conceded that the measure of its duty was to keep its sidewalks safe for the ordinary requirements only, and that it was under no obligation to provide pavements safe for roller skating. If a wheel of the plaintiff’s skate had caught in the narrow opening between paving stones or between bricks or between the parallel bars of an iron grate over an opening to a basement, there would be no liability on the part of the city, because there is no duty on it to guard against such dangers but only against those reasonably to be apprehended in the ordinary use of the sidewalk. But in this case there was a hole, of the existence of which there was constructive notice, six inches square, near the middle of a narrow sidewalk and in the direct line of ordinary travel. It was more or less dangerous to all persons passing, whether walking or on skates. The foot of a small child would have gone down in it, and the toe or heel of a shoe of an adult was as likely to be caught in it as a roller skate. The plaintiff was not making a forbidden use of the pavement. She was doing nothing unlawful. If in the dark she had fallen into an open trench across the pavement or fallen over an object negligently left on its surface, of which the city had notice, actual or constructive, there could be doubt as to its liability. That she was on roller skates does not affect the question of liability, unless her fall, was due to that fact, and of this there was no evidence. The test is whether the sidewalk was reasonably safe for ordinary use. The danger was one common to all in the use of the pavement and differing only in degree as to individuals and modes of traveling.

The judgment is affirmed.


text:
    McKenna, Appellant, v. Atlantic Refining Company.

      Negligence — Master and servant — Safety appliance — Contributory negligence — Risk of employment.

    In an action by an oil gauger against his employer, an oil refining company, to recover damages for personal injuries sustained by reason of the escape of a current of gas from a tank which the plaintiff was gauging, a nonsuit is properly entered, where it appears that the plaintiff knew from his previous employment that gas escaped from the particular kind of oil which he was gauging, that he knew of a way of avoiding the current when he lifted the lid of the tank, that he had avoided such currents before, that there was nothing to show the absence of ventilating pipes in the tank, and nothing to show affirmatively that the ventilating pipes were necessary to the reasonable and proper use of the tank.
    Argued Jan. 4, 1910.
    Appeal, No. 180,
    Jan. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1904, No. 411, refusing to take off nonsuit in case of Daniel P. Mc-Kenna, Administrator of the Estate of George Handforth, deceased, v. Atlantic Refining Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Wiltbank, J., filing the following opinion:
    • If this case went to the jury it would go on the issue whether or not the defendant company had been guilty of negligence to a degree which caused the injury to the man Handforth. If the company was guilty of such negligence it must be found by the jury that it arose upon their sending him to a tank, the contents of which he was to gauge whilst it was not duly equipped; in other words, the plaintiff must here show affirmatively that whilst he had accepted the employment for the time being of gauging oil and was legitimately about that occupation he was confronted by a catastrophe due to the negligence of the defendant company in the structure and furnishing of the tank which confined the fatal gas. This, therefore, brings us to the question whether or not, there being no evidence in the case of negligence in the building of the tank and the mode of the supply of the oil thereto, ventilating pipes were necessary to its reasonable and proper use. The argument has turned mainly upon the presence or absence of ventilating pipes. It has not been affirmatively shown with sufficient accuracy to justify its being left to the jury that the tank on the morning in question was without a pipe or pipes to produce ventilation. But were we to assume, for the purposes of justice, that there was some show of evidence on this head necessarily for the jury, we would be confronted by the further difficulty that after all it had not been legally established that according to the ordinary and legitimate construction, operation and use of the tank, or of like tanks, ventilating pipes were a part of the fixture. We have no evidence that the tank was not of the ordinary and usual character and such as would be found in plants employed in the department of commerce under review. It appears, moreover, that the plaintiff had knowledge of a proper precaution by which to avoid the effect of the escaping gás. This we learn from his own testimony. He said that his companion in order to avoid danger stepped to a certain part of the three by five platform which appears to have been about the circular top of that tank, in order to carry himself beyond the draft which he found was disturbing the gas at the moment he put up the lid. The plaintiff has testified that he observed this movement. He saw it and, as I recall his testimony, he was himself about to step aside in the same spirit of caution when overcome. The accident being thus shown to have been due to the current of air which set in the direction of these two men and which so controlled the fumes of the gas as and when they were emitted from the tank through the manhole opened by the fellow laborer, as to produce a recognized risk, I cannot adjudge him ignorant of the peril of the situation. It also appears from the testimony produced by the plaintiff that he had that morning gauged we will say many of the tanks before he reached the one in question. The evidence is clear upon this point. He had gauged with his companion, or with another witness here testifying, other tanks, and thus we have a further indication of his familiarity with the work. Besides this, according to his own story, he had been engaged in working over oils of various characters, which he has described, including the Texas reduced crude oil, and this has been his occupation for a long time; whereby presumptively and necessarily in the eye of the law he had acquired knowledge that gas was to be expected to arise from the oils referred to. He knew of the character of this oil, and as he knew of the structure of the tank, and as there is no affirmative evidence of the absence of ventilating pipes, or of the necessity of such pipes in the ordinary and usual course of business, it is my duty to enter a nonsuit.

      Error assigned was refusal to take off nonsuit.

      S. Morris Wain, with him Thomas Biddle Ellis, for appellant.
    — A company dealing with a substance so dangerous as gas must be held to a high degree of care and the exercise of every reasonable precaution in guarding against accidental injury: Shirey v. Consumers’ Gas Co., 215 Pa. 399; Hartman v. Citizens’ Nat. Gas Co., 210 Pa. 19; Olive Stove Works v. Gas Co., 210 Pa. 141; Wagner v. Chemical Co., 147 Pa. 475; McCoy v. Gas Co., 213 Pa. 367; Bardsley v. Gill, 218 Pa. 56.

      Simpson & Brown, for appellee,
    cited: McHugh v. Steel Co., 219 Pa. 644; Bridge Co. v. Newberry, 96 Pa. 246; Hughes v. Leonard, 199 Pa. 123; Peterson v. R. R. Co., 217 Pa. 401; Cunningham v. Bridge Works, 197 Pa. 625; Smith v. Traction Co., 202 Pa. 54.
   Per Curiam,

February 14, 1910:

The judgment in this case is affirmed on the opinion of Judge Wiltbank on entering a nonsuit.


author: Mr. Justice Potter,

text:
    Roney’s Estate.

      Wills — Accumulations—Act of April 18, 1853, P. L. 503.
    1. The Act of April 18, 1853, P. L. 503, permits of accumulations only during an existing minority, and for the benefit of the minor. To be lawful, the accumulated fund must be that of the minor, and must be paid to him upon arriving at the age of twenty-one. All other accumulations are void; and where there has been such direction, or where income accumulates because not disposed of, it goes to the one who would be entitled if no accumulation had occurred.

      Wills — Vested and contingent interest — Accumulations—Illegal accumulations — Act of April 18, 1853, P. L. 503 — Laches.
    2. Testator after having made various gifts and devises, including annuities to certain brothers and sisters named, directed as follows: “And upon the decease of my said brothers and sisters and payment of all sums as hereinbefore directed to be paid — I will and direct any residue of principal or income of my estate shall be divided and paid one-half part to my son-in-law W. he surviving, and the other half part thereof, or in the event of the said W. being then deceased, the whole of said residue to and among the then surviving children of my brother J., and my sisters [naming them], and the issue of any deceased child then living, their respective executors and administrators, share and share alike, such issue taking, however, only their parent’s share.” Held, (1) that the resulting accumulation of income was illegal; (2) that the gift to the residuary legatees was contingent; and (3) that the illegal accumulation of income should be distributed to the next of kin.
    3. Where an executor’s account is confirmed and distribution decreed to trustees, without any reference to a question of unlawful accumulations of income, such question is not to bo considered res adjudicata by the decree; nor will a son of the next of kin entitled to the illegal accumulations be barred by laches after thirty-two years, because his mother raised no question as to the accumulation at the audit of the executor’s account, and because he did not after her death raise the question himself by petition to the court, it appearing that the trustees filed no accounts for years, and even then gave no notice to the son of the next of kin.
    Argued Jan. 4, 1910.
    Appeals, Nos. 199, 200, 201, 202, 203, 204, 225, 226 and 227,
    Jan. T., 1909, by William R. Dougherty et al., from decree of O. C. Phila. Co., Oct. T., 1882, No. 291, dismissing exceptions to adjudication in Estate of Samuel J. Roney, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Lamorelle, J.

      Errors assigned were in dismissing exceptions to adjudication.

      John Houston Merrill, with him Edward G. McCollin and J. Washington Logue, for appellants.

      Theodore F. Jenkins and Horace Haverstick, for appellee.
   Opinion by

Mr. Justice Potter,

February 14,1910:

We agree with the conclusion of the orphans’ court that the excess of income in this case was allowed to accumulate in violation of sec. 9 of the Act of April 18, 1853, P. L. 503. The statute permits of accumulations only during an existing minority, and for the benefit of the minor. To be lawful, the accumulated fund must be that of the minor, and must be paid to him upon arriving at the age of twenty-one. All other accumulations are void: Wright’s Est., ante, p. 69; Washington’s Est., 75 Pa. 102. And where there has been such direction, or where income accumulates because not disposed of, it goes to the one who would be entitled if no accumulation had occurred.

The testator here devised the residue of his estate to the executor, in trust, to pay annuities to named brothers and sisters, during their respective lives, and certain pecuniary legacies upon the death of the respective annuitants. He further directs: “And upon the decease of my said brothers and sisters and payment of all sums as hereinbefore directed to be paid — I will and direct any residue of principal or income of my estate shall be divided and paid one-half part to my son-in-law, William G. Perry, he surviving and the other half part thereof, or in the event of the said William G. Perry being then deceased, the whole of said residue to and among the then surviving children of my brother, John Roney, and my sisters, Mary Eckel, Mary It. Dougherty, Anna Jane Foust and Elizabeth A. Smith, and the issue of any deceased child then living, their respective executors and administrators, share and share alike, such issue taking, however, only their parent’s share.”

It will be noted that it is only upon the decease of the brothers and sisters that the residue is to be paid to the “then surviving children,” etc. The gifts to the residuary legatees are contingent upon their being alive at the date of the death of the last survivor of testator’s brothers and sisters. Until the happening of that event, it could not be known who would be entitled to take. The interests of the residuary legatees are clearly contingent. By the residuary clause, one-half of the residue was to be paid to testator’s son-in-law, William G. Perry, “he surviving.” But he did not survive. He died before the last of the annuitants, and therefore took no share in the residue. No one suggests that his interest was vested. Yet the language by which the gift was made to him is substantially the same in meaning as that used to designate the other residuary legatees. “He surviving,” and “then deceased” are used in the same sense as “the then surviving children” and “the issue .... then living.” The interests of appellants in one-half of the residue were contingent upon their surviving Perry, as well as all the annuitants. We are not able to distinguish the language of the will here in question from that construed in Mulliken v. Earnshaw, 209 Pa. 226, where Mr. Chief Justice Mitchell said (p. 230): “In the present case there is no room for doubt as to the actual intent of the testator. His words are, after a devise to his widow for life, ' and from and immediately after her death or marriage, I give and devise my said real estate unto my children then living, and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple, the issue of any deceased child to take only the deceased parent’s share.’ All these remainders are clearly contingent. No child takes a vested interest because until the happening of the contingency prescribed, the death of the widow, it cannot appear that he will be in the class to whom the devise is made, to wit, those then living, and if he should die before then leaving issue such issue would claim directly in their own right under the terms of the will. That 'this was the time actually meant by the testator is so clear on the face of the will that it would not admit of contradiction by the presumption of a different intent under any rule of construction.”

The ruling of the court below, that'the estates given by the final paragraph of the residuary clause of the will, were contingent and not vested, is justified by the decision in Adams’s Est., 208 Pa. 500.' There as set forth in the syllabus, testator gave a portion of his estateHo trustees in trust for a son G. for life, “ and after his death remainder to go and be equally divided among all the children of my said son G. then living, and the issue of any of them then dead, yet so, hoyever, that the issue of any such dece_ased child shall take if but one solely, and if more than one then equally among them such part and share only as his or their deceased parent would have taken if living. But if my said son shall die leaving no child or children, nor issue of any such him surviving, then the part or share of my residuary estate that under the above devise would have gone to his descendants, shall go and be equally divided between my daughter M. and my son T.” Held, that the period of vesting was fixed as of the death of G., the life tenant, and that no estate vested in a granddaughter of G. who died before the grandfather.

To the same effect is the reasoning, and the result reached ’ thereby, in Wood v. Schoen, 216 Pa. 425. And the same rule ' was expressly followed, and the words “then living” held to indicate an intention to give a contingent remainder in the case of McDaniel v. McDaniel, 219 Pa. 371.

In the case at bar, at the time fixed for distribution, there were persons in being, answering to the description in the will, so no question arose as to the distribution of the principal; the controversy here is as to the proper disposition of the accumulated income.

Authority is not lacking to guide us in deciding the question involved. In Grim’s App., 109 Pa. 391, where the direction to accumulate was held void, the fund was not awarded to the residuary legatees, because they were not entitled to take presently, but only after the death or marriage of the widow. The accumulations were accordingly awarded to the widow and heirs or next of kin. So in Martin’s Est., 185 Pa. 51, it was said, “The act of assembly prohibiting accumulation, except during an existing minority and for the benefit of the minor, provides that the liberated income shall go, not under the intestate laws, but to ‘ such person or persons as would have been entitled thereto if such accumulation had not been directed.’ The inquiry, therefore, must, in the first instance, always be, who, under the provisions of the will, as fairly interpreted, such persons are. It frequently happens, however, that there are none; as where the principal of the estate from which the income in the meantime is to be accumulated is not given until a future event; or where the persons who are to take cannot now be known with certainty, as in Rhodes’ Est., 147 Pa. 227; Mellon’s Est., 16 Phila. 323; or where the accumulation is to create a fund from which legacies are payable and there is no present residuary gift, as in Grim’s App., 109 Pa. 391. In these and similar cases, the liberated income necessarily passes under the intestate laws.” See also Edwards’s Est., 190 Pa. 177. In accordance with the principles above set forth, the court below properly awarded the accumulations to the heirs and next of kin of the testator.

Counsel for appellant in their argument have brought to our notice some English cases, which they urge tend to support an exception to the application of the general rule as to unlawful accumulations. But the decisions in Harbin v. Masterman, L. R. (1894), 2 Ch. 184, and Wharton v. Masterman, L. R. (1895), Appeal Cases, 186, as appears from the opinions in those cases, are based expressly upon the fact that by the terms of the will under construction the residuary legatees took a vested estate in both the principal and the surplus income of the trust estate, and that no one else had the least interest in or claim upon such income. And counsel for appellants, in their argument here, admit squarely that these English cases do not apply here unless the will in the present case gives to the residuary legatees vested rights. That it does not do so we have already pointed out. Under the English act, it has been held that where income of residue is directed to be accumulated for a period beyond that allowed by the act, the effect of the statute is that the income, during the period for which accumulation is unlawful, goes to the next of kin as undisposed of. See Weatherall v. Thornburgh, L. R. 8 Ch. D. 261. In a later case, In re Travis; Frost v. Greatorex, L. R. (1900), 2 Ch. 541, the rule of Weatherall v. Thornburgh was followed, and it was held that where there is an annuity given by will, and the surplus income directed to be accumulated until the death of the annuitants, the accumulations accruing after the expiration of twenty-one years, go under the intestate law, and not to the residuary legatee. It was also held that Weatherall v. Thornburgh is not inconsistent with and is not overruled by Wharton v. Masterman. In the case of Talbot v. Jevers, L. R. 20 Eq. 255, a testator directed the payment of several annuities out of his residuary estate, and upon the death of the last surviving annuitant directed that both principal and accumulations of income should be applied for the benefit of testator’s nephew and his heirs. It was held that, as to the income accruing after the expiration of twenty-one years from the death of testator, there was an intestacy. This case bears a close resemblance in its facts, and the provisions of the will construed, to the case at bar. It is cited, and followed, together with Weatherall v. Thornburgh, L. R. 8 Ch. D. 261, by Judge Penbose, in Mitcheson’s Est., 11 W. N. C. 547.

It is further suggested by counsel for appellants that the right to the accumulations was settled by the confirmation of the executor’s account, filed in 1875. But it does not appear that any question as to unlawful accumulations was then raised or passed upon, and this question cannot therefore fairly be said to be res adjudicata. Nor do we see any merit in the suggestion that the doctrine of laches should be applied as against the grandson of the testator. This contention was well disposed of by the auditing judge, who refused to apply the doctrine of laches, and said: “ Laches implies failure to act upon full knowledge of all the facts. The present claimant, a grandchild of testator, is entitled to the surplus income arising from and after February 4, 1892, the date of his mother’s death. He was not heretofore bound, so far as the facts appear, to petition the court to construe the will; the very fact that the trustee did not notify him of the audit would seem to be conclusive that it considered he had no claim or rights in the premises, and his knowledge of a surplus would necessarily come from the trustee, which was in exclusive control of the residuary estate. The trustee filed no accounts from time to time, as certain of the annuitants died. It was not compelled to do so. Now it files its first account, and it seems to the auditing judge exceedingly technical to hold the next of kin bound by what his mother failed to do in May, 1875, at which time the executor’s account was confirmed nisi; especially so, assuming the old practice to be similar to the present, in view of the fact that unless there was then an accumulation shown to be such in the account as filed, the court would have refused either to consider or to determine the question, for the very simple reason that there was then no evidence of a fund for immediate distribution.”

The court below reached the conclusion that the surplus income accumulated during the forbidden period, passed, under the intestate laws, to the daughter of the testator, his sole next of kin. And that by reason of the length of time which has elapsed since her death, payment of her debts, and the settlement of her estate is to be presumed, so that distribution may properly be made to the person claiming through her. We think this disposition of the fund entirely correct.

The appeal is dismissed, and the decree of the orphans’ court is affirmed.


text:
    Harrison’s Estate.

      Trusts and trustees — Separate use trust — Active trust.

    Where a testator gives a share of his estate to trustees “in trust for the sole and separate use of my daughters respectively during their lives without the power of anticipation or disposing of the principal,” and on the death of each daughter respectively, to her children, the trust will be construed as an active trust to support the remainder to the children, although the daughters were neither married nor in immediate contemplation of marriage at the time of the maldng of the will.
    Argued Jan. 6, 1910.
    Appeal, No. 282,
    Jan. T., 1909, by Eliza H. Elliott, from decree of O. C. Phila. Co., April T., 1882, No. 250, dismissing exceptions to adjudication in Estate of Virginia T. S. Harrison, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elicin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    ' From the record it appeared that Virginia T. S. Harrison directed by her will as follows:
    “My estate shall be divided into as many shares as I may have children or issue of deceased children such issue taking their parents’ share. One share I give to each of my sons or their issue if said sons or either of them should die before me. The shares of my daughters I devise to Charles J. Stille and my son John Harrison their heirs and assigns in trust for the sole and separate use of my said daughters respectively during their lives without the power of anticipation or disposing of the principal. On the death of each daughter respectively their share shall pass to their children; should there be no issue of my daughters respectively them surviving their shares shall pass to their brothers and sisters and the issue of such as may be deceased leaving issue such issue taking their parents’ share: but if the said daughters should be unmarried at the time of their death I devise their shares to the uses of their wills respectively.

      “The foregoing devises and bequests are all subject to the life estate of my husband, to whom I give the whole of the said estate for the term of his natural life.”
    One of the daughters married William H. Elliott, but at the death of the testatrix and at the date of the will she was neither married nor in contemplation of marriage. At the audit Mrs. Elliott, being then a widow, claimed the principal of her share.
    The court disallowed the claim.
    On exceptions Lamorelle, J., filed the following opinion:
    While it is true that the trust is for the sole and separate use of the daughters, and that, so far as Eliza H. Elliott is concerned, it is void in that she was neither married nor in immediate contemplation of marriage at the time of the making of the will, yet the income is, in express terms, given her for life only. Upon her death, the principal goes to her children, if she leaves any her surviving; if not, to her remaining brothers and sisters, and the issue of any then deceased; with the right of disposing of her part by will if she dies unmarried. One of the objects of the trust is, of course, to exclude a possible husband, either during the life of the wife or after her death, but this is not the only purpose, and the auditing judge was clearly right in refusing to decree it terminated (see Boyd's Est., No. 1, 199 Pa. 487); for, until the death of Mrs. Elliott, it is impossible to tell who will be entitled to the corpus. ’
    It has been argued with much force and ability that the question is governed by Neale’s App., 104 Pa. 214, the principle of which is recognized in Quin’s Est., 144 Pa. 444, but an examination-of these cases shows that they are not authorities in point. In the former, a fund arising from a sale of real estate in partition was before the court for distribution. Brown had given his residuary estate to a granddaughter, for her sole and separate use, and “the main question argued,” according to Mr. Chief Justice Mercur, who delivered the opinion of the court, was whether she was entitled to her share or whether it was payable to a trustee for her. She was not married nor in immediate contemplation of marriage at the time of the execution of her grandfather’s will, though she was married at the time of his decease. It was held that the separate use was void. The will did provide that if she died without issue, the devise should go to testator’s “legal heirs”; but an “indefinite failure” was evidently contemplated, and, the separate use being out of the way, the fee, so far as real estate was concerned, vested in her. This phase of the case was taken for granted, since it was not alluded to either in the arguments of counsel or in the opinion of the court.
    In Quin’s Est., 144 Pa. 444, the earlier decision is approved; the case is on all fours, except that the principal was to vest in the daughter (for whom a separate use had been created), when and if she reached the age of thirty years. At the time of the audit she was forty years of age, and, as she was unmarried and not immediately contemplating marriage with any given person when the will was made, her share was awarded to her in her own right.
    The exceptions are dismissed, and the adjudication confirmed absolutely.

      Error assigned was the decree of the court.

      C. Berkeley Taylor, for appellant, cited:
    Neale’s App., 104 Pa. 214; Quin’s Est., 144 Pa. 444.
    There was no appearance or printed brief for appellee.
   Per Curiam,

February 14, 1910:

The order of the court dismissing the exceptions and confirming the adjudication is affirmed on the opinion of Judge Lamorelle.