text:
    Miller’s Estate.

      Wills — Executors and administrators — Probate of mil.

    An executor is appointed by the testator, and derives his authority to act from the -will. The granting of letters testamentary by the register of wills is a pro forma act, to give effect to the will of the testator.
    The admission of a will to probate is a judicial determination of the validity of the will, and unappealed from is conclusive as to the appointment of the executor.
    The appointment of the testator gives to the executor a right to administer of which only his own renunciation can deprive him, or his refusal to appear when cited to prove the will and take out letters. The time when it becomes imperative for an executor named to accept or renounce, is when he is cited to do so. Until the executor named in the will has refused or renounced the trust, the register has no authority to grant letters with the will annexed.
    - The register of wills admitted a will to probate. Before letters testamentary were issued to the executor named in the will, two of the legatees appeared before the register and applied for letters of administration with the will annexed. Before these letters had been issued, the executor appeared and requested that letters testamentary should be granted to him. Instead of complying with his request the register proceeded to take testimony, and determine the executor's sanity, which resulted in his refusing letters to the executor, and in granting letters of administration to one of the legatees. Held, that the action of the register was without authority of law, and that the orphans’ court committed no error in reversing the action of the register, especially when it found from the evidence that the executor was mentally competent at the time letters were refused to him.
    Argued Oct. 11, 1906.
    Appeal, No. 148, Oct. T., 1906, by Martha A. Shirley, from decree of O. C. Armstrong Co., revoking letters of administration, etc., in estate of Robert Miller, deceased.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elion and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Patton, P. J., filed the following opinion:
    By the statement of the somewhat complicated facts, in their chronological order, and the law, as we understand it, governing the same, we may be able to arrive at a fair and just conclusion.
    Robert Miller made his last will and testament on September 21,1894, and appointed therein John W. Miller his executor.
    About January 1, 1904, said John W. Miller began to show signs of mental derangement, which increased in violence until April 14,1904, when upon the petition of his wife and son, under Act of April 20, 1869, P. L. 78, a commission was appointed, which reported on April 15, 1904, “That the said John W. Miller is insane, and that the welfare of himself and others require his restraint and that his is a suitable case for confinement.” On the same day the report was confirmed by the court and it was directed that John W. Miller be confined in the hospital for the insane at Warren, Pennsylvania.
    ■ What effect had the finding of the commission and the decree of the court upon the civil rights of John W. Miller? In our opinion, none, except to confine him. The act of 1869 has been construed in Brickway’s Case, 80 Pa. 65, and in Halderman’s Appeal, 104 Pa. 251. The gist of these opinions is that the purpose of the act is expressed in its title, viz: “ An act to .provide for the admission of certain classes of the insane into hospitals for the insane.” It conferred no jurisdiction over the estate of the lunatic : Halderman’s Appeal, 104 Pa. 251.
    Robert Miller died on July 7, 1904. On July 28, 1904, his will was offered for probate before the register of wills and he made the following order: “ Now, July 28,1904, the testimony of the above named witnesses being sufficient, I do hereby admit the foregoing will to probate and order the same to be recorded as such. Given under my hand the above date. H. B. Henderson, Reg. Registered and recorded July 28, 1904, will book, vol. 7, page 37. H. B. Henderson, Register.”
    ' When the register" by the foregoing decrees admitted the will to probate, it was a judicial decision by him that it was genuine; that it was regular in form and execution; that the testator was competent to make it; that he appointed John W. Miller his executor, and that said document should be duly entered upon the records. The admission of the will to probate was in effect appointing John W. Miller executor of the instrument thus probated. . “ The proof of the authority of the executor to act as such is a production of a copy of the will by which he was appointed, certified under the seal of the ordinary. This is usually called the probate: ” Bouvier’s Law Diet., Title, Probate of Wills. “ If the execution of the will be properly proven the register is bound to issue letters testamentary to the executor named therein, unless disqualified by minority, he is the appointee of the testator, not of the register, and he has no discretion in the matter: ” Will of Wm. Neal, 17 W. N. C. 191. “With the probate of the will the register’s judicial powers cease : ” Mathews v. Biddell, 8 Pa. Superior Ct. 112. “ The register of wills performs the full measure of his duties when he requires the production of the will for probate: ” Estate of Sarah Nichols, 3 Pa. Superior Ct. 484. “ The executor is appointed by the testator, and derives his authority to act from the will. The granting of letters testamentary by the register of wills is a pro forma act to give effect to the will of the testator : ” Pomeroy’s Estate, 24 W. N C. 296. “The appointment of the testator gives to the executor a right to administer of which only his own renunciation can deprive him, or his refusal to appear when cited to prove the will and take out letters : ” Bowman’s Appeal, 62 Pa. 166.
    What should have been the next step taken if John W. Miller did not apply for letters, a citation should have been issued requiring him to take out letters in a reasonable time or show cause why administration should not be granted to the party legally entitled thereto, and this citation should not be granted to the party legally entitled thereto, and this citation should have been served upon the next of ■ kin of the testator: Lang-ton’s Estate, 14 W. N. C. 46. The register can grant letters of administration with the will annexed only “ wherein the executors shall all refuse and renounce : ” Act of March 15,1832, P. L. 135, sec. 18, Stewart’s Purdon, page 1074, P. L. 19.
    So far as the record shows, John W. Miller did not refuse or renounce his right to act as executor, or was any citation served upon him.
    On August 5, 1904, a number of the legatees with their attorneys appeared before the register and applied for the right to administer upon the estate. So far as the record shows John W. Miller had no notice of the meeting, was not present or represented by counsel. The records of the lunacy case No. 9, June Session, 1904, were offered, in evidence to show that he was not qualified to act as executor. It seemed to be taken for granted that this disposed of the rights of John W. Miller, and a fight ensued among the next of kin of Robert Miller to determine who would administer upon his estate. It resulted that August 16, 1904, Isabella Ralston and Martha A. Shirley were appointed administratrices by the register.
    On September 3, 1904, Elizabeth Moorhead appeared before the register and set forth that the estate of Robert Miller was ■suffering because Martha A. Shirley and Isabella Ralston, the administratrices appointed by the register, had neglected to act, and procured a citation requiring them to enter upon the discharge of their duties or show cause why their appointment should not be recalled.
    On September 9, 1904, Isabella Ralston filed her answer refusing to act jointly with Mrs. Shirley.
    On September 9, 1904, Mrs. Shirley answered the citation and agreed either to act individually or jointly with Mrs. Ralston, objected to further delay and asked that the letters to Mrs. Ralston be revoked.
    On September 13, 1904, Della Miller, a daughter of John W. Miller, wrote to Dr. Guth, the superintendent at Warren,
    ■ saying that it was necessary for her father to come home to attend a law suit.
    On September 14, 1904, Dr. Guth wrote her that in his opinion that her father was sufficiently restored to be granted leave of absence, and if she would get the permission of the judge and county commissioners, he would let him go on a parole of thirty days.
    On September 24,1904, a petition was presented for the discharge of Miller upon which the court made the following, order: “ September 24, 1904, upon presentation of the within petition and the court being of the opinion that John W. Miller now confined at the hospital for the insane at Warren, Pa., has recovered his reason sufficiently that he may be discharged from custody and confinement. This is to order and direct the authorities at said hospital to discharge him, the said John Miller, from the custody of said institution upon presentation of a copy of this order. By the court.” Shortly after this order was made, and on the same day, it came to the knowledge of the attorneys of Martha Shirley that said order had been made. They objected to it, and the court made a further order that the discharge of John W. Miller should in no manner affect 'the proceedings then pending before the register. This order has been lost and cannot be found.
    The discharge of Miller, from the insane asylum was authorized by sec. 7, Act of April 20, 1869, P. L. 78 (Stewart’s Purd. page 2360, P. L. 11), which provides “ on statement in writing to any law judge .... that his mental disorder has so far changed its character as to render further confinement unnecessary, the judge shall make suitable inquisition into the merits of the case, and according to its results, may or may not order the discharge of the person.” •
    It is argued that this act only applies to the discharge of the criminal insane committed under sec. 5 of the act. We do not.think so. No other method is provided to empower the court to discharge those committed under sec. 6. We have directed the discharge of countless persons from custody who were committed under sec. 6. This is the first time that our authority has been denied.
    Be this, however, as it may, as we stated before in our opinion, neither the commitment of John W. Miller nor his discharge affected his civil rights. Its only purpose was to confine him temporarily for his own personal welfare: Halderman’s Appeal, 104 Pa. 251.
    On September 29, 1904, John W. Miller appeared before the register and requested that letters testamentary be issued to him. To this Martha A. Shirley and other legatees objected and renewed their application that letters of administration c. t. a. be issued to Martha A. Shirley.
    On October 14,1904, attorneys for Mr. Miller and Mrs. Shirley appeared before the register and testimony was taken. On November 1,1904, more evidence was offered and the case continued.
    On November 9, 1904, John W. Miller presented his petition to the court of common pleas asking for a writ of mandamus to compel the register to issue letters to him. After hearing the mandamus was granted.
    On May 24,'1905, the decree of the court was reversed by the ..Supreme Court for the reason that the mandamus was

      prematurely issued: Miller v. Henderson, 212 Pa. 263, that court saying, “ The register may issue letters testamentary to the appellee when free to act, after the disposition of this appeal. If he should refuse them and improperly award letters to another, the orphans’ court, on appeal, can correct any wrong that may be done.”
    On June 28, 1905, Mrs. Shirley and Mr. Miller again appeared before the register and further testimony was taken.
    On June 29, 1905, the register appointed Martha A. Shirley administratrix c. t. a. of Robert Miller, deceased, and refused letters testamentary to John W. Miller.
    On June 30, 1905, John W. Miller appealed from the decision of the register, and that appeal we now have before us.
    The first reason assigned in the appeal is that the register had no jurisdiction to appoint an administrator c. t. a. when the executor mentioned in the will appeared and asked for letters. We think this position is well taken, as has been shown by the authorities, heretofore cited, in this opinion, when the register admitted the will to probate and registered it in his office. Nothing further remained to be done, except to give ■ Miller a certificate of his appointment, so that he could show his authority to act as executor to any person who might question it.
    In Sill v. McKnight, 7 W. & S. 244, the Supreme Court held that a person found by inquisition to be an habitual drunkard, is not thereby deprived of his power to perform the office of executor. And in that opinion Mr. Chief Justice Gibson points out how and why the orphans’ court should be applied to in case relief is needed by reason of the executor being insane.
    The Act of March 29, 1832, section 26, P. L. 190, provides that when an executor has been duly declared a lunatic, the orphans’ court shall have power to vacate the letters. The Act of May 1, 1861, section 2, P. L. 680, provides that when the sole executor becomes incompetent to discharge .the duties of the trust by reason of sickness or other visitation, the court having jurisdiction shall have power to vacate the letters testamentary and grant new letters.
    We have not been able to find any case in the books, or has any been cited to us, where the register has assumed jurisdiction to pass upon the question of the insanity of the executor. In our opinion if such a contingency arises relief should be sought in the orphans’ court.
    The second reason assigned for appeal is that the register should have dismissed the objections of Mrs. Shirley, because she did not give bond as required by the Act of June 6,1887, P. L. 359.
    It would seem from the record that Mrs. Shirley first objected to the register granting letters to Miller on September 29, 1904. No bond being given in ten days these exceptions would fall, and the law would not authorize the register to consider them. However, Mrs. Shirley again filed exceptions on October 14, 1904, and gave the bond required by the act of assembly on October 22, 1904. This was irregular. When it appeared to the register on October 14 that no bond had been filed he should have dismissed the exceptions. But having allowed new exceptions to be filed on October 14, we are inclined to let them stand so that this case may be determined on the merits.
    The third reason for the appeal, viz: that the register is without authority to pass upon the qualifications of the appellant to act as executor after the will has been admitted to probate, has heretofore, in this opinion, been decided in favor of the appellant.
    The fourth reason assigned in the appeal that Martha A. Shirley has not shown that the executor is not competent to administer upon the estate, requires us to examine the testimony. The register filed no opinion, hence we do not know how he arrived at the conclusion that John W. Miller was insane.
    On the hearing before us Dr. Guth also testified as to the insanity of Miller, and he had little if any knowledge of his condition after he left the hospital on September 26, 1904. Speaking as to his condition on that date he says: “ In my opinion he was not capable of taking care of any business that would require mental exertion, he was not well enough to do any complicated business; I don’t think he was restored fully. I would not regard him as capable of settling an estate. It was confusion of the mental faculties. There were no delusions present, no hallucinations present, there was nervous restlessness, and irritability which resulted in this confusion. He improved up to the time he left the hospital. When he left the hospital he talked all right and in a rational manner.”
    The appellee also called Dr. J. H. King as a witness, who testified that he was the family physician for John W. Miller, and had known him from eight to ten years. He says that Miller was insane from worry when he was sent to the asylum, and that he returned in his normal condition and that there was nothing in his actions or conversation that was weakened by the previous insanity, and that his mind was competent to settle up an estate.
    The testimony of Dr. C. J. Jessop was offered in evidence, who says, in speaking of the condition of John W. Miller shortly after he returned from the hospital, “ He is rather fidgity. I don’t think he is fairly sane.”
    On part of the appellant Dr. T. N. McKee is called, who testifies that shortly after Miller came home from the hospital he visited him and made an examination, and that he was of sound and normal mind. A large number of Mr. Miller’s neighbors were called by the appellant, who met him frequently and had many business dealings with him after he returned from the asylum. They united in saying that his mind was normal and that he was entirely competent to attend to his own and other people’s business. He was elected a school director in the township in the spring of 1905; he served as an inspector on the election board; he attended to the affairs of the church; he is the owner of a farm containing 100 acres and worth $8,000, upon which he successfully farmed.
    The testimony of the appellant’s witnesses convinces us that John W. Miller has fully recovered his mental faculties, and was competent to act as the executor of Robert Miller when refused the appointment by the register.
    We conclude from the whole testimony that when Miller applied for letters on September 29, 1904, he was competent to act as executor. The law does not require the testator to appoint the most intelligent or the best qualified man as his executor. At the very most the register would not be justified in refusing letters to the person named as executor unless it appeared that his appointment would be detrimental to the estate.
    John Miller is.a man of means; he has given a'bond in the sum of |60,000; for upwards of twenty months since his return he lias conducted his own and public business with care and success. We believe he can settle the estate of Robert Miller with credit to himself and with safety to the estate.
    January 7, 1907:
    And now, June 27, 1906, the decree of the register granting letters of administration c. t. a. to Martha A. Shirley is revoked, and it is now ordered that letters testamentary be issued by the register to John W. Miller upon the estate of Robert Miller, late of Freeport borough, deceased.

      Error assigned was the decree of the court.

      W. P. Rainbow, with him W. J. Christy and John B. Chapman,

    for appellant, cited : Langton’s Estate, 14 W. N. C. 46 ; Shoenberger v. Lancaster Savings Institution, 28 Pa. 459; Shepard’s Estate, 170 Pa. 323; McGregor v. McGregor, 3 Abb. (N. Y.) 92; Wilkey’s App., 108 Pa. 567; Brubaker’s App., 98 Pa. 21; Levan’s App., 112 Pa. 294.

      R. L. Ralston, with him Calvin Rayburn,

    for appellee, cited : Miller v. Meetch, 8 Pa. 417 ; Halderman’s App., 104 Pa. 251; Neal’s Will, 17 Phila. 527; Bowman’s App., 62 Pa. 166 ; Pomeroy’s App., 24 W. N. C. 296; Harberger’s App., 98 Pa. 29; Sill v. McKnight, 7 W. & S. 244 ; King’s Estate, 9 W. N. C. 207 ; Wagner’s App., 43 Pa. 102.
   Opinion by

Mr. Justice Mestrezat,

The learned judge of the orphans’ court has stated at length the facts of this case in his opinion and they need not be repeated here. Nor is it necessary to discuss or determine the numerous questions suggested by the appellant’s argument in order to sustain the decree of the orphans’ court.

The will of Robert Miller was presented to the register of Armstrong county for probate on July 28,1904, and thereupon he made the following decree: “ I do hereby admit the foregoing will to probate and order the same to be recorded as such.” This was a judicial determination of the validity of the will and, unappealed from, was conclusive as to the appointment of John W. Miller as executor: 1 Wms. Exrs. 549; 3 Redf. on Wills, *48. An executor is appointed by the testator, and derives his authority to act from the will. The granting of letters testamentary by the register of wills is a pro forma act, to give effect to the will of the testator: Pomeroy’s Appeal, 127 Pa. 492. The appointment of the testator gives to the executor a right to administer of which only his own renunciation can deprive him, or his refusal to appear when cited to prove the will and take out letters : Bowman’s Appeal, 62 Pa. 166. The time when it becomes imperative for an executor named to accept or renounce,- is when he is cited to do so: Ralston’s Estate, 158 Pa. 645. Until the executor named in the will has refused or renounced the trust, the register has no authority to grant letters with the will annexed: Act of March 15, 1832, sec. 18, P. L. 135 ; Stewart’s Purd. 1074, P. L. 19.

When, therefore, on August 5, 1904, the legatees appeared before the register and applied for letters of administration with the will annexed, the latter was confronted with his own record made within a fortnight previously, disclosing the facts that the testator had appointed John W. Miller his executor and that he had neither refused nor renounced the trust and had not been cited to do either. The plain duty imposed upon the register by the statute under these circumstances required him before issuing letters of administration with the will annexed to another person to cite Miller, the executor named in the will, to appear and accept or refuse letters testamentary. The register, however, ignored this provision of the statute and appointed two of the legatees to administer the estate. Before letters of administration had been issued to them, or they had taken the official oath or filed a bond, John W. Miller appeared before the register and requested that letters testamentary be granted to him. Instead of complying with his request, the register proceeded to take testimony and determine Miller’s sanity, which resulted in his refusing letters to Miller and in granting letters of administration to one of the legatees. There is no statutory authority for such a proceeding under the facts of this case and we have not been referred to any decision or text-book authority that recognizes any such power or authority in the register. His duties as well as his authority relating to the probate of wills and granting of letters testamentary or of 'administration are defined and limited by statutory provisions which in all cases he must strictly observe. Having been appointed executor by the will, the register should have given Miller the evidence of his appointment by issuing letters testamentary to him. If the executor became insane or otherwise incapacitated, all parties in interest were fully protected by the authority to vacate the letters testamentary vested in the court by the Acts of March 29, 1832, sec. 26, P. L. 196, and of May 1, 1861, sec. 2, P. L. 680.

On the appeal from the register’s decree, the orphans’ court heard testimony and found, inter alia, the following facts: “ The testimony of the appellant’s witnesses convinces us that John W. Miller has fully recovered his mental faculties, and was competent to act as the executor of Robert Miller when refused the appointment by the register. We conclude from the whole testimony that when Millet applied for letters on September' 29, 1904, he was competent to act as executor. . . . John W. Miller is a man of means; he has given a bond in the sum of $60,000; for upwards of twenty months since his return he has conducted his own and public business with care and success. We believe he can settle the estate of Robert Miller with credit to himself and with safety to the estate.” The hearing on the appeal was de novo, and under section 40 of the Act of March 15, 1832, P. L. 135, the orphans’ court was required to take testimony and make it a part of the proceedings: Wickersham’s Appeal, 75 Pa. 334; Bearmer’s Appeal, 126 Pa. 77. If, therefore, we concede the authority of the register to hear testimony and determine the sanity of John W. Miller and his fitness to act as executor, the action of the register cannot be sustained. The orphans’ court, after a full hearing of the case, finds no such incapacity to exist, and that Miller was competent to act as executor in administering the estate at the time letters were refused him by the register. This court is authorized by the section of the act just referred to “ to affirm, reverse, alter or modify the decree of the orphans’ court” on the testimony submitted to that court, and after an examination of the testimony we have no hesitancy in sustaining the court’s findings of fact and in affirming the decree. We are, therefore, of opinion that the action of the register was irregular and illegal in refusing letters to Miller, on his own application in the first instance, and on the facts as to Miller’s incapacity disclosed by the testimony in the case.

The decree of the orphans’ court is affirmed,


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Blaney, Appellant, v. Sin Clair.

      Will — Devise—Vested and contingent interest.

    The testator devised his real estate to his widow for life, and directed Ms executors at her death to sell said real estate and divide the proceeds among Ms cMldren, naming them, in certain proportions, and “in case either of my above said children shall die before the division of my estate as hereinbefore directed, having lawful issue, such issue shall receive the deceased parent’s share, but if there be no such issue then such share shall fall into the general fund, to be divided among the survivors in the manner hereinbefore provided.” Held, that the children took a contingent and not a vested estate.
    Argued Oct. 12, 1906.
    January 7, 1907 :
    Appeal, No. 176, Oct. T., 1906, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1906, No. 146, on case stated in suit of Minerva Blaney et al. v. Milton Sin Clair.
    Before Mitchell, C. J., Fell, Bjbown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Case stated to in assumpsit on contract to purchase land. Defense title not marketable. Before Patton, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for defendant.

      R. L. Ralston, with him Calvin Rayburn,
    for appellants, cited: Womrath v. • McCormick, 51 Pa. 504; Manderson v. Lukens, 23 Pa. 31; Dalrymple’s Estate, 13 P'a. Superior Ct. 289.

      W. J. Christy, for appellee,
    was not heard, but cited in his printed brief: McAlpin’s Estate, 211 Pa. 26; Mayer v. Walker, 214 Pa. 440.
   Per Curiam,

The testator devised his real estate to his widow for life, and directed his executors at her death to sell said real estate and divide the proceeds among his children, naming them, in certain proportions, and “ In case either of my above said children shall die before the division of my estate as hereinbefore directed, having lawful issue, such issue shall receive the deceased parent’s share, but if there be no such issue then such share shall fall into the general fund, to be divided among the survivors in the manner hereinbefore provided.”

The language of the will does not admit of the slightest doubt as to the testator’s meaning. There was no present conversion of the real estate but a direction to convert for purpose of distribution on the happening of a future event. Except for the provision' above quoted in regard to the death of any of the children before the division of the estate, the plaintiffs could have conveyed a title in fee without any further proceedings. But this provision made the interests of the children clearly contingent. What is said of a similar provision in Mulliken v. Earnshaw, 209 Pa. 226, is applicable here: “ 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.” As is pointed out by the learned judge in the present case, “ if any of the children of J. A. Blaney should die before the death of his wife, and the division of his estate, which events have not yet occurred when the distribution came to be made under the terms of the will, the issue of the child or children so dying, would be entitled to take, and the deed of the parent or parents to Milton Sin Clair, the defendant, would afford him no protection as against them.”

Judgment affirmed.


author: Mr. Justice Fell,

text:
    Boyd, Appellant, v. Kerr.

      Malicious prosecution — Probable cause — Reasonable grounds of belief— Evidence.

    In an action for malicious prosecution the question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the prosecutor’s belief of the existence of probable cause based on reasonable grounds.
    Where there has been a failure to show a want of probable cause, it is the duty of the court to enter a nonsuit or to direct a verdict for the defendant. If the facts are in dispute, their ascertainment is of course for the jury. But what is probable cause and whether it exists under an admitted or clearly established state of facts is a question of law for the court.
    In an action for malicious prosecution a nonsuit is properly entered where it appears from the plaintiff’s own case that the defendants acted, from knowledge that a fire apparently of incendiary origin had occurred, that two persons only, plaintiff and a friend, were known to have been in a position where it was possible to have caused it, and that the plaintiff might have a motive because of insurance on property, and had given an improbable explanation of what he exhibited as a prior attempt of someone to set fire to his property.
    Argued Oct. 12, 1906.
    Appeal, No. 39, Oct. T., 1906, by plaintiff;, from order of O. P. Clarion Co., Aug. T., 1900, No. 19, refusing to take off nonsuit in case of L. C. Boyd v. Thomas Kerr and S. H. Raster.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for malicious prosecution. Before Lindsey, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      J. T. Maffett and W. A. Hindman, with them J. W. Maffett and W. L. McCracken, for appellant.
    The case was for the jury: Phipps v. Sharps, 142 Pa. 597; McGrann v. Pittsburg & Lake Erie R. R. Co., 111 Pa. 171; Boyd v. Snyder, 207 Pa. 330; Markley v. Snow, 207 Pa. 447; Brubaker v. Taylor, 76 Pa. 83; Bell v. Atlantic City R. R. Co., 202 Pa. 178; MacDonald v. Schroeder, 214 Pa. 411.

      A. A. Geary and F. J. Maffett, with them Cadmus Z. Gordon and David F. Patterson, for appellees.
    It is the duty of the court to declare as a matter of law whether the facts do or do not constitute probable cause for the prosecution; and where they do show probable cause to direct a verdict for the defendant or enter a compulsory nonsuit, as the case may be: McCarthy v. De Armit, 99 Pa. 63; Smith v. Ege, 52 Pa. 419; Mahaffey v. Byers, 151 Pa. 92; Travis v. Smith, 1 Pa. 234; Beach v. Wheeler, 30 Pa. 69; Dietz v. Langfitt, 63 Pa. 234; Bryant v. Kuntz, 26 Pa. Superior Ct. 102; Bruff v. Kendrick, 21 Pa. Superior Ct. 468 ; Brobst v. Ruff, 100 Pa. 91; Beihofer v. Loeffert, 159 Pa. 365; Walbridge v. Pruden, 102 Pa. 1; Huckestein v. Insurance Co., 205 Pa. 27; Mitchell v. Logan, 172 Pa. 349; Scott v. Dewey, 23 Pa. Superior Ct. 396; Auer v. Mauser, 6 Pa. Superior Ct. 618; Ruffner v. Hooks, 2 Pa. Superior Ct. 278.
    January 7, 1907:
   Opinion by

Mr. Justice Fell,

This was an action for malicious prosecution. A nonsuit was entered because of the failure of proof that the prosecution was instituted without probable cause. The plaintiff, in addition to the proof of his acquittal of the crime of arson with which he had been charged, showed all the circumstances connected with the fire, and by calling the defendants as witnesses he opened the door for them to prove the facts on which they had acted in bringing the prosecution as they had appéared to them at the time.

It appeared from the evidence that the plaintiff was conducting a store in a town of 400 inhabitants. A week or ten days before the fire in question, there had been a fire of unexplained origin at night in a building within a few feet of his store, which was extinguished before any serious injury had been done. The day before the fire by which his store and stock of goods were consumed, he called in some of his neighbors, among whom was one of the defendants, and showed them what he claimed to be evidence of a second attempt to set fire to the store, which from his explanation made at the time could have been accomplished only by someone entering his store through a 9 x 12 opening in a window sash. Because of these occurrences the citizens of the town were greatly alarmed and appointed three watchmen to patrol the streets at night. On the night of the fire the plaintiff had procured the key of a door opening into an adjoining building in order to have a means of escape from his store “if anything should happen,” and had induced a friend to sleep in the store with him. ' Between twelve and one o’clock at night the fire was discovered by the watchmen in a second-story room, the windows of which were fifteen feet above the ground. This fire spread rapidly and consumed the plaintiff’s store and its contents, on which he had a large insurance, and a number of buildings in the town, which belonged to others.

This was the situation when the defendants acted and in the light of which their acts were to be judged, — a fire apparently of incendiary origin and two persons only, the plaintiff and his friend, known to have been in a position where it was possible to have caused it, one of whom might have a motive because of the insurance and had given an improbable explanation of what he exhibited as a prior attempt of someone to set fire to his store.

Under this state of facts shown by the plantiff’s testimony, , it was not error to hold that there had been a failure to show a want of probable cause. Circumstances that were calculated to excite suspicion at the time and to induce action by a reasonably prudent person were no doubt explained at the trial in the criminal court, and we assume the entire innocence of the plaintiff. But in an action for malicious prosecution the question is not whether the person charged with a crime was guilty, but what were the indications of his guilt. The test is the prosecutor’s belief of the existence of probable cause based on .reasonable grounds: Mitchell v. Logan, 172 Pa. 849.

Where there has been a failure to show a want of probable cause, it is the duty of the court to enter a nonsuit or to direct a verdict for the defendant. If the facts are in dispute, their ascertainment is of course for the jury. But what is prohable cause and whether it exists under an admitted or a clearly established state of facts is a question of law for the court: Mahaffey v. Byers, 151 Pa. 92; Huckestein v. Insurance Co., 205 Pa. 27.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Bartlick v. Wortman, Appellant.

      Contract — Sale—Furniture in hotel — Delivery,
    Where the proprietor of a hotel, the furniture of which is owned by another, sells the hotel and agrees that out of the purchase money, the purchaser shall pay a certain sum to the owner of the furniture, and the owner of the furniture assents to the agreement, and the furniture is delivered to the purchaser, he cannot retain it and refuse to pay for it because a few articles were missing, but he must pay the contract price for the whole less the value of the missing articles. If the terms of the contract are disputed, or the contract wholly denied, the case is for the jury in a suit by the owner of the furniture against the purchaser.
    Argued Oct. 12, 1906.
    January 7, 1907:
    Appeal, No. 164, Oct. T., 1906, by defendants, from judgment of O. P. Armstrong Co., March T., 1906, No. 34, on verdict for plaintiff in case of E. J. Bartlick v. C. M. Wortman and C. A. Replogle, partners.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for tbe price of furniture in a hotel.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,354.10. Defendants appealed.

      Errors assigned were (1-16) various rulings on evidence and various instructions, including a refusal of binding instructions for defendants.

      M. F. Leason and C. E. Harrington, for appellants.

      R. A. McCullough, with him H. A. Heilman, for appellee.
   Opinion bt

Mr. Justice Brown,

This is an action in assumpsit for goods sold and delivered, involving nothing but disputed questions of fact,' and though, as is very properly said by the learned trial judge in his opinion overruling the motion for a new trial, the case is not at all complicated, so far as the law is concerned,” we have sixteen assignments of error before us. It was the right of the appellants to take this appeal, and it has been our duty to duly consider the assignments, each of which is dismissed as being without merit.

A. C. Bailey was the lessee of a hotel in Kittanning, and in May, 1904, sold out to the appellants. All that he had to sell was the license, the lease and the good will. The furniture belonged to other parties, among them the appellee. The price to be paid for everything was $6,000, and the appellants agreed to pay the same to parties to be designated by Bailey. According to the testimony of E. J. Bartlick, the appellee, he was first to be paid $2,150 for furniture belonging to him in the hotel. The appellants had the license transferred to themselves, took and retained possession of the hotel and paid to others than the appellee the amounts they were to receive. Though, according to the testimony offered by the appellee, the appellants agreed, with the consent of Bailey, to pay him $2,150 for his furniture in the latter’s possession, they refused to do so, and as one of the covenantees in their contract with Bailey, he brings this suit for the breach of the covenant with him. For failure to keep the promise to pay him for his goods he had his independent cause of action. Bailey could not have sued for the whole of the purchase money, for the agreement was not to pay it to him, but to others under his direction, who agreed to part with their property and delivered it to the appellants.

It was, of course, incumbent upon the appellee to show that his goods had been delivered to the appellants. Bailey testifies to their delivery. He says that, with a list of Bartlick’s goods, he went through the hotel with one or both of the appellants and found them all there, with the exception of some articles worth in the aggregate about $25.00 or $50.00. There was other testimony on the part of the plaintiff tending to show delivery. The appellants denied both the contract to pay Bartlick and the delivery of the goods to them. The case became one simply of disputed facts which were not involved and to which the plain law was properly applied by the court. The jury were instructed that, if they found the appellants had received and retained goods belonging to the appellee, they could not keep possession of them and refuse to pay for them because they had not received some of the articles which

• he had agreed to deliver to them, but that they would have to pay for what they had retained, the contract price for the whole, less the value of the articles they had not received. The jury found that there had been a delivery to them of all but $50.00 worth, for their verdict was' for $2,354.10, representing $2,100 of principal and interest on the same from May 31,1904, to the day the verdict was rendered. No good purpose can be served by any further discussion of this case.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Pearce Manufacturing Company v. Lebanon Mutual Insurance Company, Appellant.

      Insurance — Fire insurance — Proof of loss — ■Schedule of items.

    In an action upon a policy of fire insurance it appeared that the policy required that the insured should set out in the statement of loss the cash value of each item of the property and the amount of the loss thereon. In the sworn proof of loss reference was made to a schedule of machinery on file in the office.of the plaintiff. It was shown that a copy of this schedule which was itemized and valued, had been delivered to the adjuster of the defendant company within thirty days after the fire, and that it remained in the possession of the defendant until the time of the trial. Held, that this preliminary schedule, taken in connection with the formal proof of loss, constituted a substantial compliance with the terms of the policy.
    Where proper proofs of loss have been furnished after the fire, and it appears that the insurance is upon a single building, and that the loss is total, the insured is under no duty to furnish verified plans and specifications of the building, together with a detailed statement of the cost of replacing the building.
    Argued. Oct. 12, 1906.
    Appeal, No. 15, Oct. T., 1906, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1905, No. 135, on verdict for plaintiff in case of Pearce Manufacturing Co. v. Lebanon Mutual Insurance Co.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Williams, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Plaintiff presented these points :
    1. That the proofs of loss furnished by the plaintiff to the defendant company, within sixty days after the fire, were a. substantial compliance on the part of the plaintiff with the requirements of the policy in suit concerning proofs of loss. Answer : Affirmed. [1]
    2. That if the defendant company received the proofs of loss on August 7, 1904, and held the same until September 18, 1904, without making any objection thereto, except such objections as were mentioned in the letter from defendant’s adjuster, Mr. Strobel, to the plaintiff, dated August 27, 1904, and in evidence, this fact would constitute a waiver on the part of the defendant, of any other defects in, or objections to, the proofs of loss, not set forth in the said letter of August 27, 1904. Answer : Affirmed. [2]
    Defendant presented these points :
    1. Under all the evidence the plaintiff cannot recover in this action, the proofs not being in compliance with the requirements of the policy. Answer: Refused. [4]
    4. No evidence has been adduced of any act or declaration of the insurance company by which the plaintiff was deceived or lulled into security by which it was deprived of any right or legal remedy. Answer: Refused. [5]
    5. Even if that had been a waiver by the company, the reopening of negotiations on and after September 13, 1904, by the plaintiff, the demand for an appraisal and request for the company to proceed to an immediate adjudication of the loss, was a waiver on the part of the plaintiff and a reinstatement of the former relations of the insurer and the-insured. Answer : Under the evidence in this case, this point is refused. [6]
    Verdict and judgment for plaintiff for $1,545. Defendant appealed.

      Errors assigned were (1, 2, 4-6) above instructions, quoting them.

      W. K. Jennings, with him D. C. Jennings, for appellant,
    cited: Langan v. Ins. Co., 162 Pa. 357 ; Pottsville Mut. Fire Ins. Co. v. Minnequa Springs Improvement Co., 100 Pa. 137; Gould v. Ins. Co., 134 Pa. 570; Beatty v. Ins. Co., 66 Pa. 9.

      January 7, 1907:

      George E. Reynolds and Q. A. Gordon, for appellee,
    cited: Powell v. Agricultural Ins. Co., 2 Pa. Superior Ct. 151; Hower ,v. Ins. Co., 9 Pa. Superior Ct. 153; Lycoming County Mut. Ins. Co. v. Schollenberger, 44 Pa. 259 ; Farmers’ Mut. Fire Ins. Co. v. Moyer, 97 Pa. 441; Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. 568 ; Roe v. Dwelling House Ins. Co., 149 Pa. 94; Whitmore v. Dwelling House Ins. Co., 148 Pa. 405; Yuengling v. Jennings, 6 Pa. Superior Ct. 614; Welsh v. London Assurance Corporation, 151 Pa. 607 ; Grandin v. Ins. Co., 107 Pa. 26; Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73; Moyer v. Sun Ins. Office, 176 Pa. 579 ; Jacoby v. Ins. Co., 10 Pa. Superior Ct. 366 ; Thierolf v. Universal Fire Ins. Co., 110 Pa. 37 ; Carey v. Fire Ins. Co., 171 Pa. 204; Sutton v. American Fire Ins. Co., 188 Pa. 380; Carpenter v. Allemannia Fire Ins. Co., 156 Pa. 37; Paltroviteh v. Ins. Co., 143 N. Y. 73 (37 N. E. Repr. 639) ; Davis v. Grand Rapids Fire Ins. Co., 157 N. Y. 685 (51 N. E. Repr. 1090).
   Opinion by

Mr. Justice Potter,

This was an action upon a policy of fire insurance; the verdict and judgment were for the full amount of the policy. Upon the trial, the court below ruled that the proofs of loss were in substantial compliance with the requirements of the policy, and the only question submitted to the jury, and determined by it, was the amount of the loss. The question involved in this appeal is stated by counsel for appellant, as being whether the proofs of loss were in compliance with the terms of the fire insurance policy. It is contended that they were not, because the insured was required, among other things, to set out in its statement of loss, the cash value of each item of the property, and the amount of the loss thereon. This the insured failed to do directly in this ease, it is claimed, in so far as the machinery was concerned ; but it did so indirectly, by referring to a schedule which set forth the items in detail. The statement of loss, in this respect, in the formal proof, is worded as follows :

“ Machinery, as per schedule on file at the office of the Pearce Manufacturing Company, Pittsburg — '150,982.21. Less estimated value of scrap, and subject to depreciation for wear and tear.”

The total amount of insurance upon the machinery was only $25,000, which was very considerably less than the amount of the loss thereon, as claimed. The proofs of loss were sworn to, and were furnished within the time stipulated in the polic}-, and were admittedly correct in form, and complete in every respect, except that they did not include in themselves, an itemized statement of the machinery alleged to have been destroyed, but referred to the detailed schedule of such machinery on file in the office of the plaintiff company in Pittsburg. If no copy of this schedule had previously been furnished to the insurance company, and if the information contained in it had been withheld, then the objection to the proofs of loss in this respect would have been well founded. The trial judge recognized this fact, and in charging the jury said: “ At first blush this objection seems to be a valid one, but when, as shown by the testimony in the case, it is considered that a copy of this very schedule had been delivered to the adjuster of the defendant company on June 30, 1904, and has remained in his possession ever since, or was at least produced by him here in court, it would seem that this technical omission, if omission it was, was rendered harmless and did not deprive or withhold from the defendant company, any information within the knowledge of the plaintiff company, nor in any way mislead the representatives of the defendant company.”

A copy of this schedule appears in the evidence as Exhibit No. 5, and it shows a statement itemized in minute detail, of the machinery and apparatus, as located upon the different floors of the building, and the valuation placed upon all the various items. It is admitted by the defendant that this schedule was furnished by the plaintiff to the adjuster of the defendant company within thirty days after the fire, and that it remained in the possession of the defendant until the time of the trial. In the view of the trial judge, this preliminary schedule, taken in connection with the formal proof of loss, constituted a substantial compliance with the terms of the policy, and he so instructed the jury. We think this instruction was correct.

In considering a similar provision in a fire insurance policy, in Boyle v. Insurance Co., 169 Pa. 349, this court said: “ We quite agree with the learned trial judge that the proofs of loss afforded a sufficient notice of the character and amount of the plaintiff’s claim. If it had seemed as to any particular lotr or class of goods to be wanting in clearness or precision, the attention of the insured should have been drawn to it and such further information asked for as was fairly necessary to the ascertainment of the loss. The law does not require the performance of useless things, or favor the arbitrary imposition of useless burdens. Substantial performance is enough.”

In the present case it would certainly be requiring a useless thing, and would impose a useless burden upon the plaintiff to require it to furnish the defendant company with a copy of the schedule on file in the Pittsburg office, when a duplicate of such schedule was already in the adjuster’s hands, and had been there for months; and had been used by the insurance company in making its own estimate of the amount of the loss and in preparing a proposition for compromise. It would have been but a restatement of something as to which the company was already informed.

It is apparent from the correspondence which passed between the parties, as is shown by the evidence, that the matter in dispute was not as to the number or character of the articles which had been damaged or destroyed, but it was confined practically • to a difference of opinion as to their value. It is true that the proofs of loss set out the amount of the loss upon the machinery in a lumping sum, but there is no allegation that the schedule did not correctly represent the machinery in the mill, which had been destroyed by the fire. It is urged in the argument, that the schedule which contained the itemized statement in detail of the machinery, not being directly incorporated in the proofs of loss, was not sworn to as required by the terms of the policy. But no objection was made to the schedule upon this ground by the company, when it was presented, nor was any request made, to have the schedule verified by affidavit. The adjuster merely requested a copy of the schedule on file in the Pittsburg office, and no more. This much he already had in his own hands, and must have been thoroughly familiar with.

In Gould v. Insurance Co., 134 Pa. 570, the present Chief Justice formulated from the decisions a rule which he expressed as follows: “If the insured, in good faith, and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy, good faith equally requires that the company shall promptly notify him of their objections, so as to give him the opportunity to obviate them ; and mere silence may so mislead him to his disadvantage, to suppose the company satisfied, as to be of itself sufficient evidence of waiver by estoppel.” Under this rule, it was the duty of the insurance company, or-its representative, to expressly request'a sworn copy of the schedule, if they intended to insist upon an additional affidavit.

As we are of opinion that the court below was correct in ruling that the proofs furnished were in substantial compliance with the terms of the policy, the question of waiver does not arise, and need not be considered.

It is also urged as a further reason why recovery should not be had in this case, that verified plans and specifications of the building claimed to have been destroyed, together with a detailed estimate of the cost of replacing the same, were not furnished in compliance with a request made by the adjuster. This matter is not included by appellant in the statement of the question involved. But if it is properly to be considered, it is sufficient to say that the insurance was upon a single building, and the loss was total. Consequently, no other proof of loss than the preliminary notice was necessary: Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. 568 ; Roe v. Insurance Co., 149 Pa. 94; McGonigle v. Insurance Co., 168 Pa. 1.

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


text:
    Murray’s Estate.

      Mines and mining — Coal lease — Royalties—Decedents’ estates.

    Where a lessor and a lessee at the time of the death of the former had treated a coal lease as in full force and effect without any election on the' part of the lessor to forfeit it for breach of any of its conditions, and the lessee has substantially performed his covenants or made a bona fide attempt to do so, and the widow of the lessor has become entitled to one-half the royalties by electing to take against the will, and both the widow and the executor of the lessor have requested the court to find that the lease was a sale of coal in place, and the court so finds, the widow cannot be deprived of one-half the royalties received by the executor from the coal that had been mined, by any action of his in attempting to declare a forfeiture of the lease after the death of the lessor.
    Argued Oct. 12, 1906.
    Appeal, No. 143, Oct. T., 1906, by R. H. Murray, executor et al., from decree of O. O. Clarion Co., distributing royalties from sale of coal under a coal lease in Estate of W. P. Murray.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions on adjudication upon issue awarded by tbe orphans’ court to the common pleas.
    In the common pleas Wilson, P. J., found the facts to be as follows:
    A dispute has arisen between the widow and collateral heirs of W. P. Murray, late of Callensburg, Pennsylvania, deceased, as to the distribution of the royalty from a certain coal lease, dated February 1, 1899, from W. P. Murray to E. N. Miller and alleged to have been in full force at the time of the death of W. P. Murray, on July 7, 1901. An issue was framed and certified from the orphans’ court into the court of common pleas to determine the validity of said lease; a jury was waived and the ease submitted to the court for trial under the Act of April 22, 1874, P..L. 109. The widow, Elizabeth A. Murray, claims against the will and alleges that she is entitled to one-half of the royalty from the aforesaid lease which was a sale of the coal in place and converted it into personalty.
    There are various questions of fact and law raised by the respective requests for findings, but independent of everything else in the case, the fact that the lease had not been forfeited in the lifetime of W. P. Murray, and that upon his death one-half of the royalty thereof descended to his widow, Elizabeth A. Murray, and that as against her, R. H. Murray, executor, had no right to declare a forfeiture and substitute a new lease therefor, is decisive of the present controversy.
    The following indorsement appears on the lease in controversy :
    “ June 2nd, 1900, for value received I hereby extend the provisions of this lease until August 1st, 1900.
    “ Signed: W. P. Murray,
    “ H. F. Miller.”

      This sentence as it stands alone is plain and free from ambiguity, but as applied to the lease upon which it is indorsed and the evidence in connection therewith is not plain, but ambiguous and requires parol evidence to construe it. Reading it by its letter and considering it alone it is possible that it could be construed as merely to refer to and extend the provision in the lease so as to be ready to ship coal from the land of Boston Gardner on or before August 1,1900. The evidence shows that mining operations on the Boston Gardner farm were not commenced until May, 1900, and on June 2,1900, the time had already expired by the letter of the lease by which the lessees were to be ready to ship coal from the Boston Gardner land, but the mining of coal on the Murray lease did not expire until February 1, 1901. The evidence also shows that W. P. Murray knew that in order to mine coal from under his farm on this lease, it was necessary first to go through the coal on the Boston Gardner farm. What is meant by this written extension or the effect thereof, is not clear; neither does ¿the evidence of what was said and done by the parties at the time of the execution of this extension on June 2, 1900, make it absolutely clear how long the time was to be extended for mining coal on the W. P. Murray lease; as to whether it extended it from February 1, 1901, to June 2, 1902, as stated by H. F. Miller, or two years from August 1, 1900. However, it is clear, in our opinion, from the evidence, that the parties to this lease both did consider this extension to mean that the W. P. Murray lease was in full force and effect after the time limited in the original lease, to wit: February 1, 1901, and in view of the written extension, we think that the construction placed thereon by the parties should control.
    It was shown that the entry in the coal mine reached the W. P. Murray lease and also that there was a check sent by the lessees for the royalty for the coal mined on the W. P. Murray lease, which was reached through one of the rooms from the Gardner farm on April 28,1902, within less than two years from the time of the extension on June 2,1900, and that the lessee mailed this check to W. P. Murray, which check was returned and destroyed and a new one issued in place thereof to R. H. Murray as executor.
    No question arose in the lifetime of W. P. Murray, between

      the parties to this lease, as to either a forfeiture or as to the length of time given by the extension, and, therefore, at the time of the death of W. P. Murray this lease was in full force. At that time the interest of Elizabeth A. Murray in this lease . became vested and it is as of that date when her rights are to be tested on the present question.
    It is apparent from all of the evidence in this case that the .surrender of the old lease by the lessees was under the belief and on the strength of the statement made to them that it was done with the consent of the widow, but not in any way admitting that there had been a forfeiture thereof prior thereto. The lease would only be evidence of the contract between the parties and the mere surrender of the paper would not alter or change the rights of the different parties thereunder. The evidence shows that at the time W. A. Hindman, Esq., wrote the letter, on December 28, 1901, to C. J. Tighe, one of the lessees, he was not attorney for the widow, Elizabeth A. Murray, and had no authority to represent her and, therefore, his acts in reference to obtaining this new lease and the surrender of the old lease would not be binding upon her, and it is not now contended by the defendant to the contrary. The letter from W. A. Hindman, Esq., and the testimony of R. H. Murray, allege a forfeiture in the lifetime of W. P. Murray, deceased, not because the lessees had not reached the Murray coal .at the time of the alleged surrender of the old lease, but there is no competent evidence to sustain a forfeiture by W. P. Murray.
    The lease in controversy by its terms is a demise of all the coal under the W. P. Murray farm of 186 acres in Toby township with the right to mine and remove the same, and is a sale of the coal in place and a conversion or severance of the same prior to the death of W. P. Murray and, therefore, his widow would be entitled to her dower interest therein, even if the coal was not opened or mined in the lifetime of the decedent: Dorr v. Reynolds, 26 Pa. Superior Ct. 139.
    She would be entitled to her dower therein of the undivided one-half, jointly with the other owners thereof, and R. H. Murray, either for himself or as representing the other joint owners of the estate of W. P. Murray, would have no right to declare a forfeiture of this interest of the widow therein if such action would be injurious to her or if such forfeiture was in any sense a fraud upon her: Wilson v. Goldstein, 152 Pa. 524, and Heinoúer v. Jones, T59 Pa. 228.
    After the receipt of the letter of November 13, 1901, from the counsel for the executor, the widow had a right to believe that if she refused to accept under the will that she would be entitled to one-half of the royalty from this coal lease, and it is to be presumed that she had this in view when she'made her election, and if, by the alleged forfeiture and surrender of the old lease and substitution of a new one signed by R. H. Murray, executor, it would defeat the right of the widow to her dower interest in the coal under this farm, it would certainly be to the interest of the said R. H. Murray and against the interest of the widow and a fraud upon her.
    The lease, inter alia, contains the following proviso: “ Second party further agrees that if he abandons lease for one year after he has commenced operations of mining, then this lease to be forfeited if demanded by first party. Further if he fails to comply with the terms of this lease then it is to be null and void.” This condition was in the interest of the lessor and made the lease voidable at his option, but the forfeiture was not self-operating and was not exercised by any positive act or in any way by the said W. P. Murray and, therefore, the lease remained in full force and effect at the time of his death and subsequent thereto: Westmoreland, etc., Natural Gas Co. v. De Witt; 130 Pa. 235; Wills v. Manufacturers’ Natural Gas Co., 130 Pa. 222; Ray v. Natural Gas Co., 138 Pa. 576; Cochran v. Pew, 159 Pa. 184.
    These and other late cases on the same subject, as applied to the first lease, are not in conflict with the principles declared in the earlier case of Brown v. Vandergrift, 80 Pa. 142.
    Where the lessees show a substantial performance or a bona fide attempt to perform, such as in the present case, a lessor is held to a very strict exercise of the right to forfeit the lease, and usually the law abhors a forfeiture: Kreutz v. McKnight, 53 Pa. 319.
    Conversations and circumstances may be proved to explain ambiguities, and parol testimony of the surrounding circumstances at the time of the transaction out of which the writing arose is admissible to aid in the interpretation of a lease: Douthett v. Fort Pitt Gas Company, 202 Pa. 416; Giimor’s Appeal, 154 Pa. 523 ; Miller v. Fichthorn, 31 Pa. 252.
    January 7, 1907:
    Declarations of a deceased person against his interest are admissible, but self-serving declarations, in the absence of the other party to the controversy, are not.
    The foregoing principles and cases are not in conflict with the cases cited on the brief of the defendant in support of the defendant’s requests for findings of law.
    The respective points of fact and law and answers thereto, are filed and attached hereto and made part of the record.
    And now, October 2, 1905, it is hereby directed that counsel for plaintiff prepare a decree in accordance with the foregoing opinion.
    On the findings of fact and conclusions of law certified from the common pleas to the orphans’ court, the court entered a decree awarding to Elizabeth A. Murray one-half of the royalties received by the executor from the sale of the coal.

      Error assigned was the decree of the court.

      W. A. Hindman, with him F. J. Maffet and Harry M. Rimer, for appellant.
    The construction of the lease in controversy is controlled by the recent decision of this court in the case of Coolbaugh v. Lehigh, etc., Coal Company, 213 Pa. 28.

      Don C. Corbett, with him A. A. Geary and H E. Rugh,

    for appellee, cited: Wettengel v. Gormley, 160 Pa. 559 ; Caldwell v. Fulton, 31 Pa. 475; Brown v. Beecher, 120 Pa. 590.
   Opinion by

Mr. Justice Brown,

In the issue directed to the common pleas it was found that the agreement between W. P. Murray, the testator, and E. N. Miller, dated February 1, 1899, was recognized by the former up to the time of his death as being a valid and existing one, in full force and effect; that he had not elected to forfeit the lease for breach of any of its conditions; that at the time the appellee presented her petition on which the issue was granted the lease was in full force and effect as to her, the widow of W. P. Murray; and that there had been a substantial performance, or a bona fide attempt at performance, by the lessees of the covenants contained in the original lease and agreement of extension. The appellee, who was the plaintiff in the issue, requested the court to find as a matter of law that the agreement between her husband and Miller was a sale of the coal in place. The appellants, who were the defendants, made a similar request. The court found what each of the parties requested. The finding, without a request from either, would not have been error in determining the rights of the appellee. When the findings of the common pleas were certified to the orphans’ court it would have been error to refuse the. decree awarding the appellee one-half of the royalties received by R. H. Murray, executor, from the sale of the coal that had been mined, less his commission for collecting and paying the same. Decree affirmed and appeal dismissed at appellants’ costs.


text:
    Welsh, Appellant, v. Clough.

      Ejectment — Rule to bring ejectment — Possession—Act of April 16, 1903, P. L. 212.
    An appeal from an order refusing a rule to bring ejectment within six months as provided by the Act of April 16, 1903, P. L. 212, will be reversed where there is no finding by the lower court as to whether the appellant is in possession of the whole tract, and if not, of how much of the tract he is in possession.
    Where a petitioner for a rule under the Act of April 16, 1903, P. L. 212, is shown to be in actual physical possession of the land, his right to the rule cannot be defeated because his possession is under a title conveyed by the respondent to another person.
    Argued Oct. 12, 1906.
    Appeal, No. 71, Oct. T., 1906, by plaintiff, from order of C. P. Forest Co., Feb. T\, 1905, No. 8, discharging rule to bring ejectment in case of James C. Welsh v. L. S. Clough.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Rule to bring ejectment under Act of April 16, 1903, P. L. 212.
    The opinion of the Supreme Court states the case.

      Error assigned was order of the court discharging the rule.

      January 7, 1907:

      J. H. Osmer, with him C. W. Stone and R. W. Stone, for appellant.
    The badge or test of possession of woodland is “ an exclusive use of the uninclosed woodland such as is customary among farmers: ” McArthur v. Kitchen, 77 Pa. 62; O’Hara v. Richardson, 46 Pa. 385; Criswell v. Altemus, 7 Watts, 565; Hole v. Rittenhouse, 25 Pa. 491; Waggoner v. Hastings, 5 Pa. 300; Alden v. Grove, 18 Pa. 377; Fitch v. Mann, 8 Pa. 503.
    In case of such use of woodland the possession is actual and not constructive: Ament’s Executor v. Wolf, 33 Pa. 331.
    The possession of an occupant by a colorable title is coextensive with his title: Green v. Kellum, 23 Pa. 254.
    The actual possession of petitioner was not disputed, but it was sought by respondent to qualify the character of that possession by proof of title adverse to that of petitioner. Such proof had no place in this preliminary proceeding and is just the question and kind of- question to be determined by the ejectment sought by petitioner to have instituted.
    Under the facts of this case proceedings under the act of 1903 are petitioner’s only remedy: Gans v. Drum, 24 Pa. C. C. Rep. 481.
    D. I. Ball, with him Hincldey, Rice Alexander and A. Q. Brown, for appellee.
    The only title attempted to be shown by the petitioner is by possession. To be effective, the possession of the intruder must be exclusive; the occupation also by the owner renders it a mixed possession, and so defeats the claim of the intruder: McArthur v. Kitchen, 77 Pa. 62; O’Hara v. Richardson, 46 Pa. 385 ; Royer v. Benlow, 10 S. & R. 303. And the acknowledgment of the real owner has the effect of preventing- the adverse character of the occupancy: Criswell v. Altemus, 7 Watts, 565.
   Opinion by

Mr. Justice Brown,

These proceedings were instituted by the appellant under the Act of April 16, 1903, P. L. 212, to settle title to real estate. In his petition he claimed title to a tract of land containing 1,000 acres, averred that he was in possession of the same, and that L. S. Clough, the appellee, claimed title to and an interest iii it. On the petition, answer and testimony taken by both sides, the court found that the claim of title made by the petitioner had been sufficiently shown by two deeds offered in evidence by him, taken in connection with his testimony; and there was a further finding that “ the testimony of the petitioner shows that he was living on the property with his family .on or about June 25, 1903, and has continued to live there since that time, occupying the house on the premises and using the barn in connection with his farming operations — that he cultivated the cleared land, raising buckwheat, corn, oats, potatoes and hay —that he pastured his cattle on the woodland, and in the slashings — that he cut timber and posts for fences, and built fences —that he peeled bark on the property south of the Tionesta Creek, and that he had the property surveyed.” In the opinion of the court the petitioner is clearly in possession of the cleared land, consisting of some seventy-five acres, but the rule for which he asks was denied him, even as to this portion of the tract, because his possession was under John Wilson, to whom the respondent had executed a deed for 200 acres, including the cleared land, and the possession was not such as is contemplated by the act. This was error, for it was not for the court in this proceeding, after having found that the petitioner’s claim of title had been sufficiently shown, and that he was clearly in possession of the seventy-five acres, to say that he had not such possession of it as entitled him, as to it, to the rule asked for. The act says nothing of the kind of possession that the petitioner must have, but simply that any person in possession of the land, claiming title to the same, shall be entitled to its provisions. The jurisdictional facts entitling the petitioner to his rule were set forth in the petition and found by the court— title claimed and possession shown to at least a portion of the property. Whether his possession is under a title superior to his own — that conveyed by the appellee to John Wilson — is not a question to be determined in this proceeding. It is instituted under an act passed for the purpose of having.a disputed right of possession determined in an action of ejectment, which the party not in possession, but claiming an interest in the land, must bring against the. party in possession. Under the court’s own findings the rule as to the seventy-five acres could not have been withheld.

. Whether the petitioner was entitled to a rule requiring the .respondent to bring his action as to the .whole tract, the opinion of the court fails to inform us. Though there is a finding that the claim of title as to the whole tract was sufficiently shown, we have nothing definite from the court as to the petitioner’s possession of it. As to this there should have been a finding; and without it we cannot determine what the right of the petitioner isi "W"e are compelled, therefore, to reverse, the order dismissing the petition and remit the record, with direction that the court find whether the appellant is in possession of the whole tract, and, if not, of how much he is in possession, and that a rule be granted upon the appellee to bring his action of ejectment within sis months for so much of the land as the appellant may be found to be in possession of.


text:
    Foster v. National Steel Company, Appellant.

      Negligence — Master and servant — Dangerous place of employment — Trestle.
    In an action against a manufacturing corporation to recover damages for personal injuries, the evidence tended to show that the defendant operated and controlled a trestle in a condition which was not reasonably safe for men to work upon, that it reserved to itself the care and maintenance of the structure, that the plaintiff protested against the dangerous condition of the trestle, but continued at work, and relied upon the promise of the defendant to fix or provide walks on each side of the track at the point where he was injured; that the risk of injury in the meantime was not so imminent as to require a prudent man to refuse to continue at work; that the plaintiff was engaged in the performance of his duty, and was exercising reasonable care in attempting to walk over the ties at the time when he slipped and received the injury. Held, that the case was for the jury and that'a verdict and judgment for plaintiff should be sustained.
    ■ The fact that a company employs a man to unload cars, paying him by the carload, and that he employs his own helpers, does not make him an independent contractor as to one who is either directly in the employ of the company or indirectly as a helper and who is injured by a defective structure winch it was the company’s duty to keep safe and in repair.
    Argued Oct. 15, 1906.
    Appeal, No. 25, Oct. T., 1906, by defendant, from’ judgment of C. P. Lawrence Co., June T., 1902, No. 67, on verdict for plaintiff in case of Prank G.' Foster •vriNationfil-Steel'.Company..
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter and Stewart,'JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Poetes, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for f4,781.25. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      J. Norman Martin, with him James J. Igoe, for appellant.
    The risk was apparent and it was assumed by the plaintiff when he undertook to walk on the end of the ties : D., L. & W. R. R. Co. v. Cadow, 120 Pa. 559 : Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Hurley v. Iron & Steel Co., 186 Pa. 187 ; Kaseman v. Sunbury Borough, 197 Pa. 162; Wilkinson v. Mfg. Co., 198 Pa. 634; Kupp v. Rummel, 199 Pa. 90; Marean v. New York, etc., R. R. Co., 167 Pa. 220; Barnes v. Sowden, 119 Pa. 53; King v. Thompson, 87 Pa. 365 ; Hoag v. Lake Shore & Michigan Southern R. R. Co., 85 Pa. 293.

      Robert K. Aiken, with him D. F. Anderson and L. K. S. G. Porter, for appellee.
    A master must not subject his servants to dangers such as he should provide against; and if the master fails to provide a safe place to work for persons necessarily and ordinarily employed in and about his premises, he is liable: Patterson v. Pittsburg & Connellsville Railroad Company, 76 Pa. 389; Kehler v. Schwenk, 151 Pa. 505; Webster v. Coal & Coke Co., 201 Pa: 278.
    The promise to repair was not made to the plaintiff; but the promise inured to the benefit of the plaintiff: Maines v. HarbisonWalker Co., 213 Pa. 145 ; Brownfield v. Hughes, 128 Pa. 194.
    It is argued the relation of master and servant did not exist because the plaintiff was paid by James McClure, an employee of the deféndant, who was paid by the car. This question is clearly disposed ,of in the case of Rummell v. Dilworth, 111 Pa. 343; Wood, Master and Servant, sec. 337; Hoffner v. Prettyman, 6 Pa. Superior Ct. 20 ; Coughtry v. Globe Woolen Co., 56 N. Y. 124.

      January 7, 1907 :
   Opinion by

Mr. Justice Potter,

The negligence charged against the defendant here was failure to provide a reasonably safe place for the men to work, while engaged in and about the duties of unloading coal and supplies for the defendant company, from cars standing upon a trestle at a height of twenty feet or more from the ground. It appears from the evidence that along one side of the elevated railroad track, upon which the cars stood, and upon the extended ends of the ties, a narrow plank walk had been laid. Upon the other side of the track no planks were laid, and no provision for walking or standing was made, but the ends of the protruding ties furnished the only footing for the men in passing along the trestle, upon that side of the cars. At the time of the accident, the narrow plank walk which had been provided on the one side was broken in such a way as to prevent its use, so that in order to pass along the trestle it was necessary to walk upon the ends of the railroad ties.

The plaintiff in this case was, at the time of the injury complained of, a laborer engaged in unloading coal, upon the trestle in question, for the use of the mills of the defendant company. It appears from the testimony of the plaintiff, that this work of unloading the stock from the cars was in charge of one James McClure, who seems to have been paid for the work by the carload, and who, in turn, employed his own helpers. Counsel for appellant have argued from this, that McClure was an independent contractor, and that the plaintiff was therefore not in the employ of the defendant company, at the time, and that the relation of master and servant did not exist. The defendant, of course, had full knowledge of the fact in this respect, and as it offered no evidence to show that McClure was an independent contractor, it must be presumed that he was not; the mere fact that his compensation was at a fixed amount per carload would not be important: Rummell v. Dilworth, 111 Pa. 343. Whether the plaintiff was directly in the employ of the defendant company, or indirectly, as a helper, to McClure, we think he was, under the evidence, properly treated as an employee. The defendant company furnished the place in which the work was to be done, and accepted the responsibility of making it reasonably safe and of keeping it in repair. It reserved to itself the care and maintenance of the trestle upon which the workmen were obliged to remain and to move about while unloading the supplies of fuel and ore for the defendant company. It could not, therefore, with full knowledge of the defects of the structure, permit the men to work upon it, and then shift the responsibility upon a so-called independent contractor. See Trainor v. Railroad Co., 137 Pa. 148.

At the time of the accident the plaintiff had partially unloaded one car, and found it necessary to pass along the trestle to another car. Being prevented by the broken planking from using that side of the track, he passed between the ends of the cars to the other side, and while attempting to make his way along the car, and upon the ends of the ties, slipped and fell to the floor of the bin, some twenty feet below, receiving very serious injuries. There was evidence that, upon a previous occasion, the plaintiff had slipped upon the ties and narrowly escaped a dangerous fall, and that he had then complained to McClure of the condition of the trestle, and McClure had in turn complained to the superintendent of the mills of the defendant company, and that official had promised to have the walks fixed on each side of the track, and needed repairs made. This promise was made by the superintendent to McClure in the presence of the plaintiff. Within about ten days from the time this promise was made, the plaintiff, in the performance of his duty, while attempting, as has already been stated, to pass, from one car to another by the only available course, upon the ends of the ties, slipped, fell and received severe injuries.

The court below submitted to the jury the questions of fact involved, in a very careful and discriminating charge, in which the interests of the defendant company were fully guarded. No exceptions whatever to this charge have been taken by counsel for appellant.

The verdict of the jury must, therefore, be accepted as establishing these facts : That the defendant company, being in possession and control of the trestle, and having reserved to itself the care and maintenance of the structure, did not maintain it in a reasonably safe condition for the men to work upon; that the plaintiff protested against the dangerous condition of the trestle, but continued at work, and relied upon the promise of the defendant to fix or provide walks on each side of the track at. the point where he was injured; that the risk of injury in the meantime was not so imminent as to require a prudent man to refuse to continue at work; that the plaintiff was engaged in the performance of his duty, and was exercising reasonable care in attempting to walk over the ties at the time when he slipped and received the injury. These were all-questions of fact which, under the testimony, could not properly have been taken from the jury, as the evidence, if believed, was ample to support the findings. We can see nothing in the manner in which the case was submitted, of which the defendant company has any just right to complain.

The assignments of error are without merit, and they are dismissed, and the judgment is affirmed.