text:
    Gunning’s Estate
    (No. 1).

      Wills — Construction—Legacies—Impossible and illegal gifts — Conditions precedent.

    1. Testatrix, after directing the sale of her real estate, gave certain legacies from the proceeds and then provided: “The income of the balance to be given to K. M., provided he is not living with the woman he married in 1899 — one J. W., should she die, or he is divorced from her — that is finally divorced — he is to be given absolutely one half of the principal, and the interest of the other half as long as he lives. If he marries again he can by will leave all to his second wife and children. If he dies unmarried a second time without children the one half — or all his share — is to be equally divided between the children of W. G., C. G. and J. B. In no case is the present wife of K. M. to benefit by anything I leave him either in personal or real estate.” At the time of testatrix’s death K. M. was living with his wife, J. W. referred to in the will. Held, that the condition annexed to the gift to K. M. was precedent, was not originally either impossible or illegal, and that as he was living with his wife, J. W., at testatrix’s death, the condition annexed to his legacy was not fulfilled and he was not entitled to take.
    2. The fact that a devisee is not at fault for the nonperformance of a condition precedent required, because he must do some act which he is. incapable of performing, is immaterial.
    3. Wills should be construed to speak and take effect as if executed immediately before the death of the testator, unless a contrary intent shall appear.
    4. In considering any restriction in a will there is no presumption of illegality; on the contrary, the presumption is in favor of innocence and validity.
    5. The rule which makes void gifts based upon a future separation of husband and wife, does not apply to a legacy given with a condition that it shall only be effectual, if the legatee’s wife, naming the particular person, should be dead or divorced from the legatee. In such a case the condition under which the legatee alone could take, must exist at the time of testator’s death, and nothing that he could do thereafter would have any effect.
    Argued Oct. 19, 1911.
    Appeal, No. 123, Oct. T., 1911, by Karl F. Miller, from decree of O. C. Allegheny Co., Feb. T., 1911, No. 133, dismissing exceptions to adjudication in Estate of Anna M. Gunning, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Miller, J. -
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      John M. Freeman, with him Harry F. Stambaugh, Francis R. Harbison, and D. T. Watson, for appellant.
    The conditions in the will annexed to the legacy to Karl F. Miller were intended by the testatrix and are, as a fact, an actual inducement to the legatee to separate from, obtain a divorce, or otherwise get rid of his wife, and are, therefore, illegal and void as against public policy and the claimant is entitled to the legacy free from the conditions: Wren v. Bradley, 2 DeG. & Sm. 49; Mayer v. McGraw, 10 York Leg. Rec. 5; Wilkinson v. Wilkinson, L. R. 12 Eq. 604; Conrad v. Long, 33 Mich. 78; Hawke v. Euyart, 30 Neb. 149 (46 N. W. Repr. 422); Matter of Haight, 51 N. Y. App. Div. 310 (64 N. Y. Supp. 1029); Potter v. McAlpine, 3 Dem. Sur. (N. Y.) 108; Cruger v. Phelps, 21 N. Y. Misc. 252 (47 N. Y. Supp. 61); O’Brien v. Barkley, 78 Hun, 609 (28 N. Y. Supp. 1049); Whiton v. Harmon, 54 Hun, 552 (8 N. Y. Supp. 119); Witherspoon v. Brokaw, 85 Mo. App. 169.

      J. C. Boyer, with him W. A. McConnell, Lazear & Blaxter and Lawrence B. Hurst, for appellees.
    — The conditions attached to the bequest to Karl F. Miller are not illegal. Cooper v. Remsen, 3 Johnson’s Ch. Rep. 382; Shewell v. Dwarris, Johnson, 172; Hoffman v. Hoffman, 30 Pa. 417.

      J. P. Patterson and Boyd Crumrine, for children of Wesley Greer, Culbert Greer and John Blackford, appellees.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

By her last will, after providing for the sale of her real estate, Anna M. Gunning gave from the proceeds, legacies aggregating $58,000, and then proceeded as follows: “The income of the balance to be given to Karl F. Miller, provided he is not living with the woman he married in 1899— one Jane Wilson, should she die, or he be divorced from her — that is finally divorced — he is to be given absolutely one half of the principal, and the interest of the other half as long as he lives. If he marries again he can by will leave all to his second wife and children. If he dies unmarried a second time without children the one half— or all his share — is to be equally divided between the children of Wesley Greer, Culbert Greer and John Blackford. In no case is the present wife of Karl F. Miller to benefit by anything I leave him either in personal or real estate.”

At the time of testatrix’s death Karl F. Miller was living with his wife, the Jane Wilson referred to in the will, whom he married in 1899. Upon the adjudication of the fourth account of the executor, which included the proceeds of the greater part of the real estate of testatrix, the auditing judge held that as Karl F. Miller was living with his wife when the testatrix died, the condition annexed to his legacy was not fulfilled, and he could not take it. Exceptions to the adjudication were filed on behalf of Karl F. Miller, which were dismissed by the court. Alleging that this was error, Miller has appealed. The auditing judge held that the condition annexed to the gift was precedent, and in this view we think he was unquestionably right. The condition provided by the testatrix for Karl Miller was one which must happen or be in existence before the estate dependent upon it could arise. No title to the estate to which she attached the condition could vest in Miller until the condition which she prescribed was fulfilled. This condition was, that Miller should not be living with the woman he married in 1899, one Jane Wilson. It limited the acquisition of the estate, and not its retention. There must be strict and literal pérformance of a condition precedent, and unless there is such the devisee takes no title. Admittedly, the condition imposed was not met. Karl Miller was at the time of testatrix’s death, and has ever since been, living with the wife to whom the testatrix referred, and whom she desired to exclude from any benefit even indirectly, under her will. “The fact that the devisee is not at fault for the nonperformance of the condition precedent required, because he must do some act which he is incapable of performing, is immaterial:” 1 Underwood on Wills, 486. In the opinion of the auditing judge, the time when the condition became effective and was to be met, was at the time of the death of testatrix. It was then that the gift to Miller was to take effect, providing he was “not living with the woman he married in 1899, one Jane Wilson.” With this conclusion we also agree. In McKinley v. Martin, 226 Pa. 550, we said: “Wills should be construed to speak and take effect as if executed immediately before the death of the testator, unless a contrary intent shall appear: Act of June 4, 1879, sec. 1, P. L. 88.” It is a fair construction of the language used by testatrix to regard the condition placed upon Miller’s right to take as applying to the time when the will became effective, that is, at the time of her death. This avoids the inference that by postponing the time of fulfillment of the condition to a time subsequent to her death, the testatrix intended to hold out an inducement to Miller to separate from, or procure a divorce from his wife. The prime purpose of the condition evidently was to prevent the then wife, Jane Wilson Miller, from receiving any benefit under the will.

But the death of the wife in the natural course of events would have brought Miller within the terms of the gift. “In considering any restriction there is no presumption of illegality; on the contrary the presumption is in favor of innocence and validity:” Holbrook’s Estate, 213 Pa. 93. And again in the same case it is said (p. 96): “The primary rule is to give effect to the intention of the testa.trix, and the presumption is that the intent was lawful.” The condition required by the testatrix was one of fact, and that was to be determined as it existed, when the will took effect. That there is no gift over in case Miller does not meet the condition, does not alter the case. In Gilliland v. Bredin, 63 Pa. 393, the question was as to a pecuniary legacy. It was held that the condition was precedent, and Mr. Justice Agnew said (p. 397): “The condition was inseparably connected with the gift of the legacy, and not merely its payment. . . . There are numerous authorities that where the contingency is attached to the legacy itself, and not merely its payment, the legacy itself is contingent (citing several). The legacy not vesting until the condition has been performed, the want of a bequest over makes no difference.”

If the condition under which Miller alone could take, must have existed at the time of testatrix’s death, then nothing which he could do thereafter would have any effect. The rule which makes void gifts based upon a future separation of husband and wife, would not therefore apply to this case. Then too, the fulfillment of the condition precedent was not originally impossible or illegal; that is, as noted above, the death of the wife through natural causes, or a separation uninfluenced by any knowledge of the contents of the will prior to the death of testatrix, would have made it possible to meet the conditions. It is therefore unnecessary to take into consideration any difference between the rule of the common law and that of the civil law, which it is urged governs in the distribution of legacies as distinguished from devises. The point here urged being, that the condition only is void, and that the gift should be held to be absolute.

In the seventh assignment of error complaint is made of the admission of certain testimony to the effect that testatrix had stated about the time she made her will, that appellant had left his wife, was living apart from her, and was about to obtain a divorce. If, however, the court was right in construing the language of the will so as to prevent the interest given to the appellant from vesting, the admission of this testimony becomes immaterial. The words in the will, “should she die, or he be divorced.from her” apply to the principal of the estate, the income of which is given to the legatee provided he is not living with his wife. We think it is evident that this language refers to the same date as the former condition, the date of testatrix’s death.

The assignments of error are overruled, and, in so far as the questions therein raised are concerned, the decree of the orphans’ court is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Gunning’s Estate
    (No. 2).

      Wills — Constructions—Contingent remainders — Failure of particular estate — Acceleration of remainder.

    1. A contingent remainder can only exist where it has a particular estate to support it. With the destruction of the particular estate the contingent remainder necessarily falls.
    2. Testatrix, after directing the sale of her real estate, gave certain legacies from the proceeds and then provided: “The income of the balance to be given to K. M., provided he is not living with the woman he married in 1899 — one J. W., should she die, or he is divorced from her — that is finally divorced — he is to be given absolutely one half of the principal, and the interest of the other half as long as he lives. If he marries again he can by will leave all to his second wife and children. If he dies unmarried a second time without children the one half — or all his share — is to be equally divided between the children of W. G., C. G. and J. B. In no case is the present wife of K. M. to benefit by anything I leave him either in personal or real estate.” At the time of testatrix’s death K. M. was living with his wife, the J. W. referred to in the will. Held,, that the gifts to the children of W. G., C. G. and J. B., were contingent remainders and that when the gift to K. M. failed because the condition upon which it was to vest was not fulfilled at the time the will became effective, the contingent remainders were not accelerated but fell with the failure of the particular estate supporting them.
    3. If a gift over is limited to take effect on a particular event and the very opposite or alternative of that event actually happens, the subsequent gift fails altogether, though the prior gift be out of the way.
    4. A contingent remainder following a particular estate given on a condition which has failed; is not accelerated by the failure of the particular estate to vest, on account of the nonperformance of the condition.
    Argued Oct. 19, 1911.
    Appeals, Nos. 130, 131, 132, 133, 134, 135, 136 and 137, Oct. T., 1911, by Helen F. Greer et al., from decree of O. C. Allegheny Co., Feb. T., 1911, No. 133, dismissing exceptions to adjudication in Estate of Anna M. Gunning, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Miller, J.
    The facts appear in the opinion of the Supreme Court and in Gunning’s Est. (No. 1), ante, p. 139.

      Errors assigned were in dismissing exceptions to adjudication.

      J. P. Patterson, with him Boyd Crumrine, for appellants.
    — The intention of the testatrix, as is clearly disclosed by a reading of her will, was to provide for Miller under certain restrictions as the main object of her bounty, and secondarily the children of Greer and Blackford. So far as the purposes of her will are concerned, Miller will die unmarried a second time without children (within the meaning of the will), and Miller not being entitled to take because of his failure to perform, such failure had the same effect in determining the contingency (upon which the children were to take) as his death: Ferguson’s Est., 138 Pa. 208; Koenig’s App., 57 Pa. 352; Bruch’s Est., 185 Pa. 194; Woodburn’s Est., 151 Pa. 586; Portuondo’s Est., 185 Pa. 472; Fletcher v. Hoblitzell, 209 Pa. 337.
    ‘ J. C. Boyer, with him W. A. McConnell, Lasear & Blaxter and Lawrence B. Hurst, for appellees.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

These appeals are from the same adjudication as that from which Miller’s appeal was taken, in which we have just filed an opinion afiirming the decision of the orphans’ court, holding that the gift to Karl F. Miller under the will of Anna M. Gunning, failed because the condition prescribed by the testatrix, upon which it was to vest, was not fulfilled at the time when the will became effective. In this adjudication the orphans’ court further held that as the gift to Miller failed, the limitations over as to one-half of the estate, in favor of the Greer and Blackford children, also failed. The auditing judge held that an intestacy resulted, and he awarded the fund to those entitled under the intestate law. Exceptions to the adjudication were filed on behalf of the Greer and Blackford children. The exceptions were dismissed by the court, and these appeals were taken from the decree of dismissal. Counsel for appellants contend that the fund should have been awarded to them as remainder-men. But clearly the estate bequeathed to appellants in the will is a contingent remainder. It is contingent in the first place upon the fact that Karl F. Miller shall not be 'living with his wife when the will takes effect. And secondly, on the fact of his dying unmarried a second time, without children. These were uncertain events, and the first contingency, viz., that Karl F. Miller should not be living with his wife, was a condition precedent to the vesting of his legacy. As a matter of fact, this contingency did not occur, and it never can happen. In McCay v. Clayton, 119 Pa. 133, referring to a contingent remainder, Mr. Justice Paxson announced a familiar principle when he said (p. 139): “Such a remainder can only exist where it has a particular estate to support it. With the destruction of the particular estate the contingent remainder necessarily falls.” The same principle is somewhat differently stated in Page on Wills, sec. 671, thus: “Upon the occurrence of such contingencies as make it impossible for the contingency upon which the legacy is given ever to occur, the contingent interest is absolutely extinguished.” Under these and many other authorities which might be cited, it is evident that when the particular estate which was to go to Karl F. Miller failed by reason of his inability to answer the description, or fulfill the requirements of the condition upon which it was given, the contingent remainder to appellants which rested upon it, was without support, and therefore fell. Counsel for appellants, however, urge that the gift was accelerated, and in support of their view they cite the decision in Fletcher v. Hoblitzell, 209 Pa. 337. But in that case the remainder was vested, and was not contingent, the devise over taking effect upon the death of the life tenants. In the opinion of Mr. Justice Mestrezat, he refers to and cites (p. 344) the rule given in 24 Am. & Eng. Ency. of Law (2d ed.), 418; but the section from which the quotation is taken refers only to vested remainders. Upon the next page of the text-book, referring to contingent remainders, is this statement (p. 419): “If the gift over is limited to take effect on a particular event and the very opposite or alternative of that event actually happens, the subsequent gift fails altogether, though the prior gift be out of the way.” The principle thus stated covers the present case. The particular event did not happen, and quite the opposite situation arose; that is, Miller was living with his wife when the will took effect. Even had the first condition been met, and the estate vested in Miller, there would have remained another contingency, that of his remarriage, in which case he was empowered to leave all to his second wife and children. Had he remarried and exercised his right of bestowal, these appellants would have had no share in the estate, as the gift to them is only upon condition that Miller dies unmarried a second time, without children. The illustrations of the doctrine of acceleration, cited by counsel for appellants, taken from Jarman on Wills, are cases of vested remainders. No case is cited, and none has been found, where a contingent remainder following a particular estate, given on a condition which has failed, has been held to have been accelerated by the failure of the particular estate to vest, on account of the nonperformance of the condition. Where a widow is given a life interest and elects to take against the will, or where, as in one of the cases in Jarman, a monk is given a life estate which he is unable to take, the life tenants are regarded as if dead, and the vested remainders are accelerated accordingly.

But in the case at bar, the interests of the appellants were not vested; they were contingent, and that to a remote degree. Karl F. Miller took no estate, because he did not answer to the description required, and was not able to fulfill the conditions upon which he was to take. It should be remembered that the gift to these appellants does not depend on the nonfulfillment of the conditions prescribed by testatrix, but on th'e contrary it depends upon their fulfillment. No provision was made for the disposition of the fund in the event of a failure to fulfill the conditions; therefore an intestacy results from the failure. The court below so held, and its decree in this respect is affirmed.


text:
    Gunning’s Estate
    (No. 3).

      Wills — Construction—Legacies—Interest.
    1. The rule that a legacy is payable one year after the testator’s death only applies in the absence of a direction in the will controlling the general rule established by the courts, or other decisive indication in the instrument, interpreted in the light of the surrounding circumstances, of a different intention on the part of the testator.
    2. Testatrix provided as follows: “In event of my death I wish my property, 602 Liberty St., and 5435 Potter St., sold, provided a good price can be gotten for both. My property on Liberty St. should bring one hundred and seventy five thousand dollars, Potter St., not less than five thousand. If they cannot be sold at those figures I wish the property kept a while until a good price can be gotten; in the meantime the taxes, interest, insurance to be paid out of the rentals.... When my property is sold I wish to be given to [certain named individuals certain sums] making in all $58,000.” The testatrix died July 18, 1905. The Liberty street property was sold in 1911, by her executor at public sale, in pursuance of an order of the orphans’ court, for $93,000, and the proceeds of the sale were included in the executor’s fourth account. The auditing judge found as matter of fact that “it was not possible to sell the real estate at any time since decedent’s death for a price approximating the value set upon the Liberty street property. The delay in the sale was caused by the endeavor of the trustee (executor) to get the best possible price for the benefit of the residuary legatees or heirs. There is no evidence of any willful delay or negléct.” Held, that it was error to allow interest upon the legacies after the expiration of one year from the death of testatrix.
    Argued Oct. 19, 1911.
    Appeal, No. 143, Oct. T., 1911, by Sarah McConnell, from decree of O. C. Allegheny Co., Feb. T., 1911, No. 133, dismissing exceptions to adjudication in Estate of Anna M. Gunning, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    • Exceptions to adjudication. Before Miller, J.
    The facts appear in the opinion of the Supreme Court and in Gunning’s Est. (Nos. 1, 2), ante, pp. 139, 144.

      Errors assigned were in dismissing exceptions to adjudication.

      Jesse T. Lazear, with him W. A. McConnell, J. C. Boyer, Thomas C. Lazear and H. V. Blaxter, for appellant.
    This will shows the intention of the testatrix that the legacies be paid out of the proceeds of the sale of real estate and that the said real estate bring a fixed price, or a good price, before the legatees received any benefit from the estate, and therefore the legacies bore no interest until the sale was effected: Lord v. Lord, L. R. 2 Ch. App. 782; Shum v. Hobbs, 3 Drewry, 93; Holmes v. Crispe, 18 L. J. Eq. 439; Earle v. Bellingham, 24 Beav. 448; Small v. Wing, 5 Brown, P. C. 66; Bernard v. Mountague, 1 Mer. 422; Elwin v. Elwin, 8 Ves. Jr. 547; Dewart’s App., 70 Pa. 403; Lewis’s Est., 52 Pitts. Leg. L. 367; Ashton v. Wilkinson, 53 N. J. Eq. 227 (30 Atl. Repr. 895; 35 Atl. Repr. 1130); Cannon v. Apperson, 82 Tenn. 553; Kerr v. Bosler, 62 Pa. 183; La Porte v. Bishop, 23 Pa. 152; Leech’s App., 44 Pa. 140; Engles’s Est., 167 Pa. 463; Page’s App., 71 Pa. 402.

      W. H. S. Thomson, with him Frank Thomson, for Grace Greer, appellee.

      W. S. Thomas and E. W. Arthur, for Mazie McCombs et al., appellees.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

The only question raised by this appeal is whether the legacies should bear interest from the expiration of one year after the death of the testatrix. The portion of the will bearing upon this question is as follows: “In event of my death I wish my property, 602 Liberty St., and 5435 Potter St., sold, provided a good price can be gotten for both. My property on Liberty St. should bring one hundred and seventy five thousand dollars, Potter St., not less than five thousand. If they cannot be sold at those figures I wish the property kept awhile until a good price can be gotten; in the meantime the taxes, interest, insurance to be paid out of the rentals. . . . When my property is sold I wish to be given to Mazie McCombs ten thousand dollars .... to Nellie Danner ten thousand, &c.....making in all $58,000.” The testatrix died July 18, 1905. The Liberty street property was sold in 1911, by her executor at public sale, in pursuance of an order of the orphans’ court, for $93,000, and the proceeds of the sale were included in the executor’s fourth account. The auditing judge found as matter of fact that “it was not possible to sell the real estate at any time since decedent’s death for a price approximating the value set upon the Liberty street property. The delay in the sale was caused by the endeavor of the trustee (executor) to get the best possible price for the benefit of the residuary legatees or heirs. There is no evidence of any willful delay or neglect.” Interest upon the legacies of $58,000 was allowed from the expiration of one year from the death of testatrix, amounting to over $14,000. An exception was filed by an heir at law who had an interest in the balance of the fund. The court dismissed the exception, and that dismissal is here assigned for error.

It is plainly reasonable, and the authorities agree, that a legacy bears interest from the time it is payable under the terms of the will. If the time is not fixed, then interest runs from the expiration of a year from the testator’s death. In Page’s App., 71 Pa. 402, Mr. Justice Agnew said, “This is a vested legacy, but the time of payment is deferred until the legatee shall arrive at age. In such a case the rule is well settled, that interest does not run upon the legacy until it falls due: Leech’s App., 44 Pa. 140; Kerr v. Bosler, 62 Pa. 183. Section 47 of the Act of February 24, 1834, P. L. 70, requiring the executors after one year has elapsed, to pay and deliver legacies under the direction of the orphans’ court, affords no countenance to the running of interest after the expiration of the year. . . . When a testator bequeaths a sum of money and fixes the time of payment, he determines by that act the precise sum to be paid at the time fixed by him. The only exception to this ruléis where the law infers an intention to pay interest from the relation in which the testator stands to the legatee.” Our Brother Brown, in Hermann’s Est., 220 Pa. 52, quotes with approval (p. 58) the following -language from Wheeler v. Ruthven, 74 N. Y. 428: “The rule that a legacy is payable one year after the testator’s death only applies in the absence of a direction in the will controlling the general rule established by the courts, or other decisive indication in the instrument, interpreted in the light of the surrounding circumstances of a different intention on the part of the testator.” An extract from the opinion of Judge Over, in Lewis’s Est., 52 Pitts. Leg. J. 367, fits closely the facts of the present case. He there said, “The testator knew that it would be necessary to sell his real estate before there would be any-funds which could be applied to the payment of the legacies; his provisions for his daughter Florence, indicate that he anticipated there would be delay in selling it, and his intention seems to have been that the legacies should not become due and payable until the fund realized from the conversion of his real estate could be distributed. It follows, therefore, that no interest is to be allowed on these legacies.” So here, the testatrix knew that the legacies could not be paid until the real estate was sold. She placed a high valuation upon the property, and said if it could not be sold at that figure, it was to be kept awhile, until a good price could be obtained. Then she goes on to say, “When my property is sold, I wish to be given,” etc. Until that time arrived, after some delay if need be, no "part of the legacies was to be paid, nor could it be, for the fund from which they were payable was the proceeds of the real estate. The time fixed for payment of the legacies was “when” the property was sold. It follows that no interest should have been allowed upon these legacies.

The assignments of error are sustained, and it is ordered that the decree of distribution be modified in so far as it allows interest upon the preferential legacies mentioned in the will.


author: Mr. Justice Mestrezat,

text:
    Colonial Trust Company, Appellant, v. Foster.

      Mortgage — Void mortgage — Married women — Separable acknowledgment — Valuable consideration — Acts of February 24,1770,1 Sm. L. 807, May 12,1891, P. L. 58, and May 2,1901, P. L. 126 — Evidence.
    1. Where in a scire facias sur mortgage the plaintiff relies upon a mortgage executed by husband and wife in 1871 and not separately acknowledged by the wife, as required by the act of February 24,1770, the burden is on the mortgagee to show aliunde the recital in the mortgage, that the mortgage was given for a valuable consideration so as to bring it within the several curative acts subsequently passed, and this burden is not met by a recital in the instrument itself when offered in evidence.
    2. Such a mortgage, without proof that it was given for a valuable consideration, is void and unenforceable against the wife, and recitals in it prove nothing affirmatively.
    Argued Oct. 20, 1911.
    Appeal, No. 141, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1906, No. 1,269, for defendant in case of The Colonial Trust Company, Trustee, etc., v. David Foster, Surviving Executor, etc.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Proceedings on a scire facias sur mortgage. Before Shaper, J.
    The opinion of the Supreme Court states the case.

      Error assigned among others was in giving binding instructions for defendants.

      Oliver K. Eaton, with him Wm. M. Galbraith, for appellant.

      C. F. C. Arensberg, of Patterson, Sterrett and Acheson, with them James H. Gray, for appellees.
    — A mortgage of a married woman which is defectively acknowledged so that it is absolutely void as against her is not cured by the act of 1891 without proof outside of the instrument itself that it was given to a bona fide purchaser and for a valuable consideration: Spencer v. Reese, 165 Pa. 158; Beso v. Bldg. & Loan Association, 201 Pa. 355; Zimmerman v. Butler, 9 Pa. Dist. Rep. 287; Lutton v. Hesson, 18 Pa. 109; Graham v. Long, 65 Pa. 383.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

The mortgage was offered in evidence by the plaintiff, and not the record of the mortgage, as stated by the learned trial judge in his opinion overruling the motion for a new trial. The error appears by what was subsequently said in the opinion that “the mortgage was admitted in evidence as being admissible against the husband at least.” The learned counsel for the appellee in their written argument also incorrectly states that the plaintiff offered in evidence "mortgage book containing a record of the instrument;” and the third branch of his argument is based on the fact that the record of the mortgage and not the original instrument was offered in evidence. Both the court and the counsel for the appellee misapprehended the offer which might have been important in a view other than that which we take of the case. The record, duly certified by the trial judge, shows that "plaintiffs’ counsel offer in evidence mortgage recorded in Mortgage Book .... being a mortgage given by Andrew McQuitty and Martha McQuitty, his wife, being the mortgage described in the sci. fa. Mr. Gray: The defendants object to this offer, because the mortgage is incompetent, showing on its face that it was not acknowledged according to law, and showing on its face that it is not to a purchaser for a valuable consideration within the curative acts. The Court: Is it not a mortgage of both? Yes, sir.” We must therefore deal with the question for consideration as if the mortgage itself was in evidence.

The vital and controlling question in the case is whether in a scire facias on a mortgage executed and defectively acknowledged by a married woman in 1871 the burden is on the mortgagee to show that the mortgage was given for a valuable consideration so as to bring it within the several curative acts subsequently passed by the legislature. Martha McQuitty and her husband executed and delivered to a trustee for the use of their children a mortgage dated January 26, 1871. The parties acknowledged the instrument in the usual form but without any separate acknowledgment made by Mrs. McQuitty as required by the Act of February 24, 1770, 1 Sm. L. 307, 1 Purd. 1151. On the trial of the scire facias, issued on the mortgage in 1906, the learned court below being of the opinion that the burden was on the mortgagee to show, aliunde the recital in the mortgage, that he was a purchaser for a valuable consideration and having failed to do so, instructed the jury to return a verdict for the defendant. Judgment having been entered on the verdict, this appeal was taken.

The curative Act of May 12, 1891, P. L. 53, 1 Purd. 1165, provides, inter alia, that “no grant, bargain and sale .... or other assurance of lands .... bearing date prior to the year one thousand eight hundred and ninety, made, executed and delivered by husband and wife to bona fide purchasers for a valuable consideration, and acknowledged before an officer duly authorized by law to take such acknowledgment, shall be deemed, held or adjudged invalid or defective or insufficient in law, by reason of any informality in such acknowledgment, but all and every such grant, bargain and sale .... or other assurance so made, executed and acknowledged as aforesaid, shall be as good, valid and effectual in law for transferring, passing and conveying the estate, right, title and interest of such husband and wife, in and to the lands, tenements and hereditaments mentioned in the same, as if all the requisites and particulars of such acknowledgment mentioned in the act” of 1770 were particularly set forth in the certificate, “and the record of the same duly made in the proper office for recording of deeds .... shall be legal evidence in all cases in "which the original would be competent evidence.” Subsequent curative acts are similar in character and the Act of May 2, 1901, P. L. 126, 1 Purd. 1167, includes mortgages theretofore “executed and delivered by husband and wife to bona fide purchasers or mortgagees for a valuable consideration, and acknowledged by them before an officer duly authorized by law to take such acknowledgment.”

The power of a married woman to convey her land in this state is conferred by statute which must be complied with in order to enable her to transfer the title. When this mortgage was executed and delivered, the act of February 24,1770, was in force and conferred upon a married woman the authority to convey or mortgage her real estate provided she and her husband executed the deed or mortgage and acknowledged it before the proper officer, the wife being examined separate and apart from her husband and declaring that it was her voluntary act. Such an acknowledgment was a prerequisite to the validity of the deed or mortgage of a married woman. Without it her title did not pass to the grantee or mortgagee; the deed or mortgage was absolutely void. Prior to 1891, therefore, the mortgage given by Mrs. McQuitty and her husband in 1871 was void as to her, she not having acknowledged it as required by the act of 1770. The curative acts did not validate all deeds and mortgages theretofore executed and delivered by married women, but only such as had been executed and delivered by husband and wife to bona fide purchasers or mortgagees for a valuable consideration, and acknowledged by them before an officer duly authorized by law to take such acknowledgment.” The validity of the mortgage in this instance therefore depended upon whether it had been given for a valuable consideration. The mortgage of the husband and wife might be in due form and duly acknowledged but, under the curative acts, that was not sufficient to bind the wife; one step more was necessary, the fact that it had been given for a valuable consideration. Therefore to bring the mortgage within the operatibn of the curative acts it was not sufficient for the mortgagee to show merely the execution, delivery and acknowledgment of the mortgage reciting a consideration, but that he was a mortgagee for a valuable consideration. Stopping short of this prerequisite, his mortgage was void and could not be enforced against the wife. Being void it imposed no obligation upon the wife, and when put in evidence on the trial of the scire facias it did not warrant a recovery against her. It was of no more efficacy than if a sheet of blank paper had been offered and admitted in evidence. A recital in a void instrument affirmatively proves nothing. It is as if it were contained in a mortgage which had not been signed by the wife. The recital therefore in the mortgage was no evidence that the plaintiff was a mortgagee for .a valuable consideration. The right of the plaintiff to recover against Mrs. Mc-Quitty on the scire facias issued on this mortgage depended upon whether the plaintiff was a mortgagee for a bona fide consideration, and the burden was upon him to show the fact, and that burden was not met by a recital in the instrument which had no efficacy until the prerequisite consideration had been established.

The judgment is affirmed.


author: Per Curiam,

text:
    Ambridge Borough v. Pittsburg & Beaver Street Railway Company, Appellants.

      Contracts — Liquidated damages — Boroughs—Street railways.

    Where a borough grants to a street railway company the right to enter upon and occupy its streets and the railway company gives a bond in the sum of $5,000 conditioned to lay its tracks and connect them with others two miles away within eighteen months, the borough is entitled to recover the $5,000 as liquidated damages upon the railway company’s failure to complete in the specified time.
    Argued Oct. 20, 1911.
    Appeal, No. 142, Oct. T., 1911, by defendants, from judgment of C. P. No. 4, Allegheny Co., Third T., 1907, No. 138, on verdict for plaintiff in case of Borough of Ambridge v. Pittsburg & Beaver Street Railway Company et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Action on a bond.
    Verdict for plaintiff for $6,225.
    On motion for new trial and rule for judgment n. o. v., Swearingen, P. J., filed the following opinion:
    The borough of Ambridge, a municipal corporation of Beaver county, Pennsylvania, brought this action against the Ecobridge Street Railway Company, the French Point Street Railway Company and the Liberty Land Company, corporations organized and existing under the laws of Pennsylvania, to recover the sum of $5,000, with interest from November 16, 1906. At the trial, there being no dispute as to the facts, the jury, by direction of the court, rendered a verdict in favor of the plaintiff and liquidated the amount at $6,225. The defendants then moved the court to grant a new trial and took a rule for judgment non obstante veredicto.
    On May 15, 1905, the borough of Ambridge entered into a written agreement with said Ecobridge Street Railway Company and the French Point Street Railway Company, wherein said borough granted to them the right to construct tracks upon certain streets of said borough, the contract, however, being subject to approval by the council of said borough. A copy of said contract marked exhibit “A” is attached to the plaintiff’s statement of demand.
    Subsequently, on May 26, 1905, the borough council did ratify and approve said contract upon condition, that the bondsmen in a certain action brought by J. D. Martsolf et al. against said Ecobridge Street Railway Company should be released from liability and the costs and expenses in relation thereto paid. Said bondsmen were released and said costs and expenses were paid.
    At the time said contract of May 15,1905, was executed, said Ecobridge Street Railway Company and the French Point Street Railway Company, as principals, and said Liberty Land Company, as surety, entered into a joint and several bond to said borough of Ambridge in the sum of $5,000 wherein, after reciting and referring to said contract, the following appears:
    “Whereas, it is the intention of said principals, as specified in their said contract, to construct and operate by electric power within one year, a street railway on Merchant Street in the Borough of Ambridge, and likewise that the said street railway shall be of double track from Fourteenth Street to Charles Street and double track on said Fourteenth Street, and further, that the said principals, or one of them, shall construct and operate or cause to be constructed and operated a street railway by electric power within eighteen months from this date through the property of the Liberty Land Company to the line of the Borough of Baden; and in consideration of the ratification and the approval of the above mentioned contract by the Council of the Borough of Ambridge, this bond-is executed and delivered to take effect and be binding on the principals and surety immediately upon the ratification and approval of said contract by the said Council.
    “Now, the conditions of the above obligation is such, that if the above named principals, or either of them, construct and operate or cause to be constructed and operated within one year a street railway on Merchant Street of double track from Fourteenth Street to Charles Street, and also construct and operate, or cause to be constructed and operated within eighteen (18) months a street railway from Merchant Street to the line of the Borough of Baden (double track on Fourteenth Street) then this obligation to be void, otherwise it is to remain in full force and virtue.”
    A copy of said bond, marked exhibit “C,” is attached to the statement of demand.
    That portion of said line of railway, which was to be constructed within the borough of Ambridge, was completed within the time named. But neither of said principals in said bond constructed and operated, within eighteen months from the date thereof, a line of street railway through the property of the Liberty Land Corm pany from the borough of Ambridge to the borough of Baden, as provided in said bond.
    The borough of Ambridge lies upon the right bank of the Ohio river in the county of Beaver and the borough of Baden fies about two miles further down the said river. The latter borough was, at the time the bond was given, connected by a fine of street railway with the other boroughs and towns upon that side of the Ohio, including Rochester and Beaver, and with New Brighton and Beaver Falls upon the Beaver river, which empties into the Ohio river at Rochester.
    December 3, 1906, after the said period of eighteen months had expired, the council of the borough of Am-bridge delivered said bond to the borough solicitor and instructed him to collect the same. This suit was filed May 1, 1907.
    The said line of railway from Ambridge to Baden was afterwards completed, to wit, about August 1, 1907.
    The plaintiff introduced no evidence of the damages sustained by it, on account of the failure to complete said railway within the time named in the bond. It alleged that the sum of $5,000 named in the bond was a liquidation of the damages and therefore it sought to recover that amount. The defendants denied that the said sum was a liquidation of the damages, and averred that it was but a penalty. It therefore claims that the court should have directed a verdict in favor of the defendant, and that the court should now enter judgment in favor of the defendant non obstante veredicto.
    This question is always difficult, for the reason that the courts have not adopted a definite rule upon the subject. What the parties themselves name the sum specified is not controlling. The best statement of the rule we have been able to find is that given in Emery v. Boyle, 200 Pa. 249, where Justice Fell quotes with approval from March v. Allabough, 103 Pa. 335, as follows:
    “The question .... is to be determined by the intention of the parties, drawn from the words of the whole contract, examined in the light of its subject-matter and its whole surrounding- and in the examination we must consider the relation which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach in damages and such other matters as are legally or necessarily inherent in the transaction. ”
    And the justice further declares:

      "The difficulty of measuring the damages which would result from a breach of contract is always an important element, if not a controlling one, in determining whether the intention of the parties was to fix a sum certain as the just amount to be recovered instead of leaving the question to the uncertain estimate of a jury.”
    In the case now before us, it is clearly impossible to establish by evidence the actual damages which resulted from the breach of the contract in question. The borough was granting the right to enter upon and occupy its streets and the principal defendants were engaging to connect these tracks with others two miles away, so that the residents of Ambridge might reach with ease the boroughs and towns hereinbefore enumerated. It is true the borough does not ride upon street railways, but its residents do; and in making the agreement the borough was acting as the representative of its people. The parties themselves considered, as shown by their agreement, that it was important to have the lines completed at a date certain, and ample time was given to do so. The failure to construct the fine within the time stipulated was a breach of the bond and the injured party became entitled to the damages resulting. By no standard of which we have knowledge could such damages be ascertained with any degree of certainty. And it must be assumed that this difficulty was in the contemplation of the parties when the bond was executed. They knew it would be impossible to prove the actual damages in case the line was not completed as agreed. This is, therefore, a reason for naming a sum to be paid in case of a breach.
    The case at bar is similar to the very recent case of York v. York Railways Company, 229 Pa. 236, in which our Supreme Court affirmed a judgment for $25,000 in favor of the city of York. The company had given a bond in that sum conditioned for the completion of tracks upon certain streets of said city within three years after the date. Work had been promptly commenced, but the tracks were not all completed within that time. The court there held that the amount named was a liquidation of the damages. We can see no distinction between that case and the one at bar.
    Motion refused and rule discharged.

      Error assigned among others was in refusing to enter judgment for defendants.

      Edwin W. Smith, of Reed, Smith, Shaw & Beal, for appellants.

      W. H. S. Thomson, with him Frank Thomson and Robert Ritchie, for appellee.
    January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the common pleas.


author: Mr. Justice Moschzisker,

text:
    Sulzner v. Cappeau-Lemley & Miller Company, Appellant.

      Contracts — Duress—Constraint — Threats — Reasonable firmness — Fear of immediate imprisonment — Evidence.
    1. A person is supposed to possess ordinary firmness unless it is shown that by reason of age. or other sufficient cause he is weak or infirm.
    2. The constraint that takes away free agency and destroys the power of withholding assent to a contract must be one that is imminent and without immediate means of protection, and such as would operate upon the mind of a person of reasonable firmness. Ordinarily, when no proceedings have been commenced, threats of arrest, prosecution, or imprisonment do not constitute legal duress to avoid a contract; the threats must be made under such circumstances that they excite the fear of imminent and immediate imprisonment.
    3. In an action of replevin for the recovery of the certificate for certain shares of stock deposited with the defendants for sale, for the transfer of which the plaintiff subsequently executed appropriate papers, evidence that the plaintiff signed the papers under a threat that his son would be put in jail unless he did so, is not sufficient to sustain a finding that the plaintiff's signature was obtained by duress, where it does not appear by the evidence that the plaintiff was not a man of ordinary firmness, and it does appear that he himself was not threatened with arrest at any time, and that upon the occasion when he signed the contract both the plaintiff and his son were at liberty to come and go as they chose and had ample time to consult an attorney had they so desired.

      Practice — Judgment non obstante veredicto — Reguests for instruction —Act of April 22,1905, P. L. 286.

    4. Where the record shows no request for binding instructions or no question of law reserved, judgment non obstante veredicto cannot be entered upon the whole record under the Act of April 22, 1905, P. L. 286.

      Appeals — Assignments of error — Final judgment.

    5. Where upon appeal there is no assignment of error complaining of judgment for the plaintiff, final judgment in favor of the defendant will not be entered, even where the plaintiff has adduced no evidence sufficient to sustain a finding in his behalf.
    Argued Oct. 20, 1911.
    Appeal, No. 145, Oct. T., 1911, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 220, on verdict for plaintiff in case of Joseph F. Sulzner v. Cappeau-Lemley & Miller Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Replevin to recover certificate of stock. Before Swearingen, P. J.
    The opinion of the Supreme Court states the case.
    The court charged in part as follows:
    [The plaintiff alleges — and he must prove his allegations to you by the weight of the evidence — that he was induced to execute these papers by what is known as duress. He alleges that the defendants, or their attorney, threatened him that his son would be sent to the penitentiary; that he was not in good health, and that he became bewildered and did not really know what he was doing when he signed these papers. Now, as I said to you before, the burden is upon him to establish that proposition, and if he has established that he was practically compelled to sign these papers by threats to send his son to the penitentiary, and that threat was such as would have operated upon the mind of an ordinary person so far as for the time being to unsettle him, then you can find that the contract, which these papers indicate, was not the contract of Joseph F. Sulzner, made freely and voluntarily. If that be true your verdict ought to be for the plaintiff. So that is the crucial question for you to determine.] [1]
    [If you find, on the other hand, that he did not enter into this contract voluntarily, but that he acted under duress, a threat to prosecute his son and cause his imprisonment, and that that was done in order to force it out of the hands of the plaintiff, then your verdict should be for the plaintiff.] [2]
    Verdict for plaintiff. Defendant appealed.

      Errors assigned among others were (1, 2) portions of charge as above.

      Charles A. O’Brien, for appellant, cited upon the subject of duress:
    Union Nat. Bank v. Dersham, 15 W. N. C. 541; Higgins v. Brown, 78 Me. 473 (5 Atl. Repr. 269); Wilkerson v. Hood, 65 Mo. App. 491; Russell v. McCarty, 45 Ga. 197; Hilborn v. Bucknam, 78 Me. 482 (7 Atl. Repr. 272); Sutliff v. Johnson, 17 Neb. 575 (24 N. W. Repr. 217).

      Harvey A. Miller, with him U. G. Vogan, for appellee, cited:
    Union Nat. Bank v. Dersham, 15 W. N. C. 541; Jordan v. Elliott, 12 W. N. C. 56.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

The plaintiff deposited a certificate for 2,500 shares of the stock of a mining company with the defendants for the purpose of sale. A few days later a meeting took place at the office of the defendants in relation to this sale, and certain other persons appeared and claimed to be purchasers of portions of the stock through a son of the plaintiff and another man who they asserted acted as his agents. The plaintiff recognized these claims, accepted in cash what the alleged purchasers declared to be the unpaid balance due, signed a receipt for the purchase money, and executed appropriate papers to carry out a proper division and transfer of the stock. Subsequently he instituted this action of replevin to recover the certificate for the stock in question.

At the trial of the cause the plaintiff did not deny the identity of the papers executed by him but asserted that they were obtained by duress. This issue was submitted to the jury, and they found a verdict in favor of the plaintiff for the value of the stock; judgment was entered thereon and the defendant has appealed. The appellant states the questions involved to be: 1. Was the charge of the court correct and adequate on the question of duress? 2. Was the plaintiff entitled to recover on the whole evidence in the case? We shall consider the latter question before passing upon the former.

There is no sufficient testimony to show that the plaintiff was either old or infirm at the time of the transaction complained of. The only evidence bearing upon that point was a statement by him that a few months previous thereto he had been in Texas for his health, “about my nervous system.” The alleged coercion was thus described by the plaintiff: “Mr. Taylor says, ‘Mr. Sulzner, are you aware that your son has sold 1,000 shares to Mr. Volquarts of this stock?’ I says, ‘No, sir, I don’t know anything about it.’ He says, ‘He has;’ and he says also, ‘Mr. Kirker sold 1,000 shares to Mr. Cappeau-Lemley. George sold his at nineteen cents, and Cappeau-Lemley for twenty-six cents.’ I said, ‘I won’t stand for anything like that because,’ I said, ‘they had no business.’ I said, ‘Why didn’t you tell me all this before you got my stock here, because this wasn’t the deal we were to get now. You were to give me my money for it.’ And then Mr. Taylor says, ‘Mr. Volquarts, tender $125 to Mr. Sulzner, the balance of $190 which George gave a check for $65.00 on account.’ ‘Well, now,’ I said, ‘this is a snap judgment you are taking on me.’ I says, ‘I don’t know anything about this.’ He says, ‘Well, here is the money.’ And he says then, ‘Mr. Lemley, you tender $260,’ and he says, ‘I don’t think I have that much in the office. I will go in and see.’ And he went in the office and brought out $260 and then laid that down to me. And Mr. Taylor says, ‘Now, Mr. Sulzner, we have tendered you this money for 2,000 shares,’ and he says, ‘Take that,’ and he had a paper in his hand, and he says, ‘We will put your son in the pen.’ He says, ‘It is either take that or take the consequences.’ Then, I broke down and started to cry. I got so bewildered. . . . After that they had me so confused I didn’t know what I was doing. I wanted to go home and I picked up the money and I says to George, I says, ‘ George, you are getting me into all kinds of trouble. You had no business doing this’ and I took the money up and went home.” The plaintiff further said that he took the money and signed the papers “To save my son from being arrested.” The son described the incident practically as his father, adding, “Mr. Taylor was walking around there flashing the paper, going to send me to prison, send me to the penitentiary .... and father got all bewildered and broke down, did not know what to do, and he said, ‘You’ve got me into this, and I have got to pay or you will go to prison.’ I said, ‘There is nothing to it at all.’”

Under both the civil and common law, threats, in order to constitute duress, had to be of “such a character as to induce a well-grounded fear in the mind of a firm and courageous man,” but, “the doctrine which is now approved by the judicial mind, both of this country and of England, is, that any contract produced by actual intimidation ought to be held void, whether arising from a result of merely personal infirmity, or from circumstances which might produce a like effect upon persons of ordinary firmness:” Jordan v. Elliot, 12 W. N. C. 56, 59. A person is supposed to possess ordinary firmness unless it is shown that by reason of age or other sufficient cause he is weak or infirm: Union National Bank v. Dersham, 15 W. N. C. 541. “The constraint that takes away free agency and destroys the power of withholding assent to a contract must be one that is imminent and without immediate means of protection, and such as would operate upon the mind of a person of reasonable firmness:” Motz v. Mitchell, 91 Pa. 114, 117. Ordinarily, when no proceedings have been commenced, threats of arrest, prosecution, or imprisonment do not constitute legal duress to avoid a contract; the threats must be made under such circumstances that they excite the fear of imminent and immediate imprisonment: Moyer v. Dodson, 212 Pa. 344; Harmon v. Harmon, 61 Me. 227; Higgins v. Brown, 78 Me. 473; Hilborn v. Bucknam, 7 Atl. Repr. (Me.) 272; Sieber v. Weiden, 24 N. W. Repr. (Neb.) 215; Wilkerson v. Hood, 65 Mo. App. 491; Russell v. McCarty, 45 Ga. 197.

The decision in Jordan v. Elliot, 12 W. N. C. 56, cited by the appellant, does not control the present case. There the plaintiff, who was an infirm widow, seventy-seven years of age, knew of the defendant, as a man of violent disposition; his threat was to put her son in jail before night, and at the time of the execution of the papers she was laboring under great agitation. This court in its opinion states: “The circumstances which surrounded the old lady, and which induced, or which compelled her, to execute the paper in controversy, were of an extraordinary rough, impudent, and fraudulent character:” and, further, that she had a “conviction that she was dealing with a dangerous man whose will it would not be safe to resist.” Although the English case of Williams v. Bayley (L. R. 1 H. L. 200) is referred to, the law of that case was not adopted as necessary to the decision of Jordan v. Elliot. After citing it, we expressly stated, “How aptly these authorities bear on the case in hand I need not say, for anyone who reads the evidence, will at once see that Mrs. Elliot was thoroughly overcome by fear, produced by the conduct of the plaintiff, that in the execution of the note in suit, she was anything but a free and voluntary agent.”

The plaintiff had been president of the mining company whose stock was in controversy, and so far as the evidence shows he was a man of ordinary firmness; he himself was not threatened with arrest at any time, and upon the occasion when he signed the contract which he is endeavoring to avoid, both the plaintiff and his son were at liberty to come and go as they chose and had ample time to consult an attorney had they so desired. The evidence as presented was not sufficient to sustain a finding that the plaintiff’s signature had been obtained by duress, and had the defendant requested binding instructions he would have been entitled thereto,' but the record shows no such request or no question of law reserved. Under these circumstances the defendant was not within the Act of April 22, 1905, P. L. 286, and had no right to judgment non obstante veredicto upon the whole record; and since there is no assignment of error complaining of the judgment for the plaintiff we will not enter a final judgment the other way. However, the charge of the trial judge was inadequate, in that it did not sufficiently define the applicable rules of- law as we have stated them.

The last two assignments of error, which complain of the refusal to enter judgment non obstante veredicto, are overruled; the first two, which go to the charge, are sustained; the judgment is reversed with a venire facias de novo.


text:
    Munhall’s Estate.

      Wills — Nuncupation.
    Probate of an alleged nuncupative will will be refused, where it appears conclusively, from what decedent said at the time the alleged instructions were given and three horns later when it was suggested to him that he sign a paper which had been prepared outlining the instructions, that he was mentally competent to have asked another to sign for him any testamentary paper.
    Argued Oct. 20, 1911.
    Appeal, No. 146, Oct. T., 1911, by Teresa M. Kiefer, from decree of O. C. Allegheny Co., May T., 1910, No. 210, vacating decision of Register granting probate in Estate of Robert J. Munhall.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from decision of register of wills.
    Hawkins, P. J., filed the following opinion:
    The question here is of nuncupation. The facts are these:
    Mr. Munhall became suddenly ill on December 9, 1908; on the fourteenth an operation for appendicitis was performed, and for a day the symptoms seemed encouraging; but there was a relapse on the fifteenth, and he was taken to the Mercy Hospital, where a second operation was performed; and when he found that his recovery was hopeless he called his two brothers, William and Charles, to his bedside (priest, doctor and attendants having left the room), and gave these instructions:
    “Will, I want you to settle up all my affairs; I want you to close out the business just as quickly as possible; sell it as a whole if you can; if not, do the best you can, and use your best judgment without sacrificing too much. The Carson street yards you can lease; the other lease you ought to be able to make some money out of. Settle up father’s estate. I have six or seven thousand dollars on deposit in the banks, and if you need more you can make a loan on some South Side Trust stock. You will find a fist of my notes and papers in the safe. You can check them all up; I think you will find everything correct. Give-Marie, Catherine and Herbert [his sister and brother] $1,500.00 each. I don’t want Stella to handle any of my money; I want you and Charles to hold it in trust for her and use it for her as you think best. I want to give at least $1,000.00 to charity; $250.00 to the Hospital, the sisters have been very kind to me; $250.00 to St. Paul’s Orphan Asylum; $250.00 to the Little Sisters of the Poor, Allegheny, and the balance you can select whatever charity you wish. Have plenty of masses said for me. Pay all my just debts and divide the balance among the four of you.”
    Toward the end of this recital Robert, having been asked “if he had made a will,” said, “No.” “He seemed,” said the witness, “to have his mind made up as to just what he wanted to go through -with, and he went through with it to the end.” After this witness left the room, he concluded on consultation with his uncle to have these instructions of Robert put in writing, and this was accordingly done by an attorney at his dictation. When, returning to the sick room about three hours after the former interview, he told Robert that he had “a paper here outlining the statements you made,” and the reply was, “No, Will, I have told you everything I wanted; I have nothing further to add.” Miss Vogel, the nurse’s recollection of the reply was this: “No, Will, I have told you everything in the presence of Charles; now let that do; I must have some sleep; I haven’t had any sleep for three nights.” Robert died six or seven hours afterwards. Attending physicians gave the opinion based on their observation that from one hour after Robert had given the instructions to his brother Will, he was unfit physically and mentally to have made a will; but the evidence of what Robert said at the time the alleged instructions were given and three hours later, when Will suggested he sign the paper outlining his instructions, which had been prepared, show conclusively that he was mentally competent to have asked another to sign for him any testamentary paper. He had then an intelligent comprehension of what he had previously done, and what he would not do. He had given his instructions and would do no more. His refusal to sign must end the matter. His purpose had been accomplished.
    This case falls within the principle of Butler’s Est., 223 Pa. 252. Assuming that Mr. Munhall was physically too weak himself to sign, the evidence leaves no room for doubt of his ability to ask another to do so for him. The extremity which validates nuncupation is therefore lacking, and the decree of the register granting probate must be set aside.
    And now to wit, December 19, 1910, this matter came on to be heard upon appeal from the decision of the register of wills in admitting to probate a certain paper reduced to writing, purporting to be a nuncupative will of said decedent, and answer thereto, and testimony taken before the register, having been offered in evidence with same force and effect as if the same had been taken before the court and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the appeal be sustained and decision of the register granting probate is hereby vacated and set aside.

      Error assigned among others was the decree of the court.

      James R. Sterrett, of Patterson, Sterrett & Acheson, for appellant,
    cited: Wiley’s Est., 187 Pa. 82.

      E. L. Kearns, for appellees,
    cited: Rutt’s Est., 200 Pa. 549; Megargy’s Est., 25 Pa. Superior Ct. 243; Taylor’s App., 47 Pa. 31; Porter’s App., 10 Pa. 254; Wiley’s Est., 187 Pa. 82; Ruoff’s App., 26 Pa. 219.
    January 2, 1912:
   Per Curiam,

The decree is affirmed on the opinion of the learned president judge of the orphans’ court.


author: Mr. Justice Stewart,

text:
    Springer v. Pullman Company, Appellant.

      Negligence — Carriers—Sleeping car companies — Loss of personal effects retained in owner’s possession — Proximate cause — Evidence.

    1. Where baggage is entrusted for transportation to the exclusive possession of a carrier, the carrier becomes insurer against all loss except such as results from the act of God or the public enemy; but for the loss of personal effects which the passenger retains in his own possession, liability only attaches when the loss is shown to have resulted from the carrier’s negligence in failing to use reasonable care in the protection of the passenger’s property. This rule is applicable to sleeping car companies.
    2. In an action for damages against a sleeping car company for the loss of a valise which plaintiff retained in his possession while occupying a berth on defendant company’s car, it appeared that plaintiff on entering placed the satchel under his berth; that when he awakened next morning the satchel was missing; that when he retired the upper berth in his section was unoccupied; and that in the morning he learned from the porter that this berth had been occupied by a passenger who must have got aboard at an intermediate point after plaintifE had retired and who had evidently left the car at an Intermediate point while plaintiff was asleep. There was no evidence explaining how the satchel disappeared; and the only evidence tending to show negligence on the part of the defendant’s servants was the testimony of another passenger to the effect that when he boarded the train, after plaintiff had retired, he gave his grip to the porter who was then on the platform, and that later on during the night he saw the porter in the wash room of the car. The length of time the porter was absent from his post did not appear; nor that when absent that his post was not filled by the conductor. No question was made as to the sufficiency of the rules and regulations of the company being sufficient to meet the requirements of ordinary care. Held, that the evidence was insufficient to carry the case to the jury and the motion for judgment non obstante should have prevailed. Steamship Co. v. Bryan, 83 Pa. 446, discussed and followed.
    Argued October 20, 1911.
    Appeal, No. 148, Oct. T., 1911, by defendant from judgment of O. P. No. 2, Allegheny Co., April T., 1908, No. 1143, on verdict for plaintiff in case of Carl Springer v. The Pullman Company.

      Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover value of personal effects, lost in transit. Before Haymaker, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.

      Error assigned, among others, was in refusing motion for judgment non obstante veredicto.

      Richard H. Hawkins, of Dalzell, Fisher & Hawkins, with him Howard T. Wilcoxen, for appellant.

      Churchill B. Mehard, with him W. H. Falls and Samuel S. Mehard, for appellee.
    January 1, 1912:
   Opinion by

Mr. Justice Stewart,

The damages here sought to be recovered are not for loss of baggage which the passenger had entrusted for transportation to the carrier’s exclusive possession, but for the loss of personal effects which the passenger retained in his own possession while occupying a place in the sleeping car. The distinction with respect to the carrier’s liability in the two cases is well established. In the one, where the baggage is delivered into the possession of the carrier, the carrier becomes insurer against all loss except such as results from the act of God or the public enemy; in the other, liability only attaches when the loss is shown to have resulted from the carrier’s negligence in failing to use reasonable care in the protection of the passenger’s property. This distinction is too familiar to require any citation of authorities in its support. It results from this established rule of law, that mere proof of loss of baggage which is taken by a passenger into a sleeping car, does not make out either an absolute or prima facie case of liability against the car company. Our own case of American Steamship Company v. Bryan, 83 Pa. 446, although the action there was against a steamship company, while here it is against a sleeping car company, is quite as illustrative of the principle as any of the cases called to our attention, and more authoritative here since it is an adjudication of our own court. In that case the claim was for loss of personal luggage which the passenger had not entrusted to the steamship company, but which he had taken with him into his state room and which had been stolen therefrom. On the trial of the case the jury was instructed that the company, with respect to this particular luggage, was not responsible as common carrier, that is to say, insurer, but was answerable only for negligence; and the one question in the case was whether the company had exercised the ordinary care and caution which it owed to its passengers. This court on review of the case entered into a full and careful consideration of the evidence, to determine the one question whether there was any evidence of negligence, that is, want of reasonable care and diligence, that warranted a submission to the jury; and the final determination of the case rested on that one question alone. In the latest New York case on the subject, Adams v. New Jersey Steamboat Co., 151 N. Y. 163, the court puts the liability of the steamboat company in such cases on the same footing with that of the innkeeper, distinguishing the carriage by the steamboat company from that by sleeping car, but that only gives greater emphasis to what was decided in American Steamship Co. v. Bryan, supra. If in Pennsylvania we apply to steamship companies a rule which holds them liable only for loss of luggage through negligence on their part, for so much the greater reason should the rule apply to sleeping car companies. Now what are the facts in this case? The plaintiff having secured in New York City his transportation over the Pennsylvania Railroad to New Castle, Pa., purchased a lower berth in one of the Pullman sleeping cars which went to make up the train on which he proposed to travel. When entering this car at Jersey City he was carrying two pieces of luggage, a suit case and a satchel. The latter contained personal jewelry which he valued at $2,203, and wearing apparel of the value of $63.50. Both pieces of luggage he gave to the porter, who placed the suit case underneath the seat occupied by the plaintiff, and the satchel on the seat, because too large for the space under the seat. Plaintiff retired about the time the train reached Trenton. Before retiring he opened and examined the satchel, found its contents safe and undisturbed, and then placed it under the berth as far as it would go. Its size preventing it going entirely under the seat, he left it protruding in the aisle, but to what extent does not appear. Plaintiff testified that he soon thereafter fell asleep and remained asleep until the train next morning was approaching Greensburg, when he arose to find that the satchel was missing. Having been continuously asleep he knew nothing as to occurrences during the night. When he retired at Trenton the upper berth in his section was unoccupied and not made up. He was informed the next morning by the porter, that this had been occupied by a passenger who must have got aboard at an intermediate point after plaintiff had gone to sleep, and who had evidently left the car at an intermediate point while plaintiff was asleep; for it was unoccupied when plaintiff awaked. Diligent but unrewarded search was made for the satchel through the entire car, all the baggage in the car undergoing examination. Plaintiff himself testified to no fact or circumstance which could in the remotest way explain the disappearance of the satchel. If the case rested on his testimony alone, it could hardly be contended that there was sufficient evidence of negligence to warrant a submission to the jury, except as we were to apply thé rule of res ipsa loquitur, which in effect would be to hold the company an insurer against theft. Prom his own testimony it appears that the company adopted the same precaution against loss of luggage which like companies every where adopt; it had placed in charge of the car a conductor and a porter whose duty it was to be watchful and vigilant. The testimony of plaintiff does not suggest a suspicion that either of these appropriated the satchel, nor for that matter does any of the evidence; nor does plaintiff’s own testimony involve either in any negligence whatever. On this branch of the case we have the testimony of a single witness. When the train reached Philadelphia a Mr. Patterson, an acquaintance of plaintiff, became a fellow passenger occupying the berth immediately opposite the plaintiff’s. It is the testimony of this witness that is relied upon as showing negligence on the part of the porter. His testimony adds nothing by way of explaining how or in what manner the satchel disappeared; the sole purpose for which it was offered was to show that the porter had not been continuously and uninterruptedly in the aisle of the car or some corresponding position where he could have had a view of the car from the one end to the other, between Jersey City and Greensburg. The witness testified that when he boarded the train at Philadelphia, as he recalled the circumstances, he gave his grip to the porter who was then on the platform. He was asked if he had any recollection of seeing the porter elsewhere during the night, and he replied, “Why, I believe in the wash room.” This question followed, “Do you remember seeing him more than once?” The answer was, “No, I do not.” Outside this testimony there is absolutely nothing in the case upon which a charge of negligence could rest. The evidence that in the morning the passenger’s shoes were found to have been polished during the night does not connect the porter with the polishing, and if it did, it fails to show that when he polished them he was not in a place where he conld have had a full view of the car. Were we to concede, which we cannot, that reasonable care and vigilance to protect against loss of baggage requires that the porter should throughout the entire route be standing as sentry in the aisle of the car, or constantly moving back and forward through the car as guard or watchman, even then the testimony of Mr. Patterson would be insufficient to establish negligence. The negligent act relied on must have some relation to the loss, and it must appear to have been the proximate cause. Was the jury to be left to infer that plaintiff’s satchel was stolen while the porter was on the platform at Philadelphia admitting passengers to the car or to infer that it was stolen while he was in the wash room? The length of time the porter was in either place does not appear. For all that does appear it may have been but momentarily. Not only so, but as against an intruder it was quite as much a protection to passengers for the porter to be on the platform with the rear door of the car fastened, as it would be were he in the car. If the rear door were unlocked when this occurred it was for the plaintiff to show the fact. Plaintiff testified that beside the porter there was a Pullman conductor on the car. Was the jury to be left to infer that while the porter was on the platform or in the wash room no employee of the company was exercising surveillance of the car? The witness Patterson must have encountered the conductor as well as the porter. If his testimony was introduced to show negligence because of the porter being on the platform when he entered the car, why was he not interrogated as to conditions inside the car with respect to watchfulness and supervision when he entered it? We may not presume negligence on the conductor’s part, and yet the porter being subordinate to him, if it were negligence in the porter to be on the platform, it would be the conductor’s negligence in permitting it, except as he took upon himself the duty of the porter within the car. Can there be any reasonable inference from the evidence that he did not do so? In the case of American Steamship Co. v. Bryan, supra, the facts which were adjudged sufficient to warrant a submission of the question of negligence were much stronger than we have here, and yet two of the judges dissented from the decision of the court. In that case it was shown that under the rules of the company a watch was kept during the night in the saloon of the boat by the stewards or waiters taking turns. To secure their vigilance they were required to report every hour to the officer on deck, and of course for this purpose they had to leave their posts. The court held that it Avas a question for the jury to say whether this amounted to ordinary vigilance which the company owed the passengers, inasmuch as the watchmen might be expected to take some time to make such report, “to loiter on their way, to stop and have a few words with the officer about the weather and the speed of the vessel.” It there appeared that on the morning the larceny was committed the steward had stopped on his way at the cook’s galley and there drank a cup of coffee. “There was ample time in the interval as the fact showed,” says Mr. Justice Sharswood, in his opinion, “for some one to enter the state room of the plaintff and other passengers and carry off several valises.” Was this ordinary and proper diligence? he inquires; could not some other mode have been adopted of watching the watchmen than this which might leave the saloon entirely unguarded at considerable intervals? No such questions arose in this case; not only was there no evidence here as to the length of time the porter was absent from his post, or that when absent his post was not filled by another, but no question was made as to the rules, regulations and requirements of the company being entirely sufficient to meet the requirements of ordinary care. The only negligence asserted was that of the porter in having been seen once in the wash room and once when the car was at rest, upon the platform.

In view of all the facts of the case it seems impossible that the theft, for theft it undoubtedly was, was committed by an intruder. The person who took the satchel must have been either a passenger or an employee. It could hardly have been one of the latter class, since their attention had not been called in any way to the fact that the satchel contained valuables of any sort.' Why should one of them without opportunity of knowing the contents, select for plunder the one satchel in' the room that carried such rich treasure? We may assume from the unusual value of its contents that this satchel was the richest, and so far as appears it was the only one disturbed. The evidence affords a more reasonable explanation. It does not appear how many passengers left that car that night at the intermediate stopping places; but the evidence shows that some did. To any one so leaving the car the plaintiff’s satchel was exposed, since it protruded into the aisle. Certainly such a one had larger opportunity to take the satchel, and escape with it undetected, than any passenger who remained in the car, or any servant; and the evidence to our mind makes it most likely that it was taken in this way. If it was so taken, will it be contended that that was an occurrence which ordinary vigilance on the part of the company would have prevented? To so hold would be to impose on the company the duty of seeing that no passenger left the car with any baggage except his own, which again would be virtually making, the carrier an insurer, besides subjecting the passengers to a scrutiny and surveillance which the ordinary traveler would have a right to resent. We cannot think that the ordinary care exacted of the carrier requires any such officious interference as'this. On the whole we are of opinion that the evidence of negligence as the proximate cause of the plaintiff’s loss was not sufficient to warrant a submission of the case to the jury. As the case was submitted the jury was left to conjecture that which the plaintiff was required to prove. This being our conelusion, it is unnecessary to consider and decide the several other questions which have been raised. The second specification of error complains of the refusal of the court to enter judgment non obstante.

This assignment is sustained and the judgment is accordingly reversed.