author: Mr: Justice Elkin,

text:
    Kessler’s Estate.

      Wills — Witness—Subscribing witness — Charitable bequest — Credible and disinterested witness — Act of April 26,1855, sec. 11, P. L. 328.
    Where a subscribing witness to a will containing a charitable bequest knows that he is signing a testamentary paper, and is asked by the testator, or by the other witness in testator’s presence to sign as a witness, it is not necessary that he should hear it read or know its contents; nor is it indispensable that the witness shall see the testator sign the will. The testator may after the will has been prepared, affix his name thereto, and subsequently acknowledge his signature in the presence of a subscribing witness. Such a witness is a credible witness within the meaning of see. 11 of the Act of April 26,1855, P. L. 328.
    A subscribing witness to a will containing charitable bequests went into the office where the testator was seated at a desk with the will already signed by him in his hand. The name of the testator was in plain view of the witness, who was requested to sign his name below that of the other subscribing witness, which he did, after having been told by the other witness outside of the office that the testator desired him to be a witness to his will. Held, that the subscribing witness was a credible witness within the meaning of the act.
    While charitable gifts may be said to be favorites of the law, yet the law discourages such gifts at or near the time of impending death, when the mental faculties are impaired, the will power broken, and the vital forces weakened, because, under such circumstances the importunities of designing persons, or the terrors of final dissolution may induce dispositions of property contrary to natural justice, and -without regard to the ties of kinship, which under normal conditions would be operative on the mind of the testator.
    An executor may be an attesting -witness to a -will making bequests to religious and charitable uses, provided he is in no way benefited by the will, except in the matter of his commissions.
    The words'"disinterested witnesses” used in the act of April 26,1855, must be read and understood in connection with the subject-matter of the statute, the evils to be avoided, the requirements intended to safeguard the rights and property of persons approaching death and the remedy to be provided in such cases. When so read and understood, the interest which disqualifies a witness under the act is such an interest as appears to exist at the time of the execution of the will, either by the terms of the will itself, or by reason of the attesting witness being then interested in the religious or charitable institutions for which provision is made by the testator, or both, or either, as the case may be.

      If the attesting witness be interested as legatee or devisee under the will, or is to derive a pecuniary benefit, or advantage, from any part of it, or if he is interested, at the time of attestation in a religious or charitable institution to be benefited thereby he is not disinterested within the meaning of the statute.
    One of the subscribing witnesses to a will containing charitable gifts was an executor and trustee under the will. He was also a trustee and officer in a church to which part of the income and ultimately a portion of the corpus of the trust estate was directed to go; and had an option to purchase certain shares of stock which were a part of the trust for religious and charitable uses, at a price to be agreed upon by three disinterested persons to be selected in a particular manner; he was one of two trustees to whom the stock of a corporation was given in trust to vote at corporate elections, and whose duties required that dividends received be paid by them to the charities named and in the proportions fixed in the will; he was also a stockholder and director in the corporation, as well as an officer and employee. Held, that the witness was not a disinterested witness within the meaning of the act of April 26,1855.
    Argued March 31, 1908.
    Appeal, No. 100, Jan. T., 1908, by Henry K. Stewart et al., from decree of O. O. Phila. Co., April T., 1907, No. 397, dismissing exceptions to adjudication in Estate of George Kessler, deceased.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication of Anderson, J.
    The portion of the adjudication relating to the subscribing witnesses and the validity of the charitable gifts was as follows :
    Objection was made at the audit that while the will had subscribing witnesses and was executed more than thirty days before the death of the testator, it was void, as it was not attested by two credible, disinterested witnesses. It was shown by the testimony that the will was drawn by the testator, who took some time to complete it, but after the will had been written and signed it was shown by the testator, who directed Kendig to take it out of his safe for that purposej to Willis G. Kendig, who was made by it one of the executors and trustees under it, as well as counsel for the executors, and that at that time the testator wrote the codicil and executed it. The witness, Kendig, also testified that h e warned the testator against having Wilmerton, who was also an executor and trustee, as well as trustee for one of the charitable legatees, witness it. Subsequently, Mr. "Wilmerton signed the will as a witness at the request of the testator, and "Wilmer-ton also, at his request, went outside of their office, they having one together, and requested Mr. Fuigle to come inside to sign the will, stating to him that Mr. Kessler had finished it. Mr. Fuigle came into the office, and at the request of the testator signed his name as a witness below that of Mr. "Wiltuerten, and opposite that of the testator. He further testified that he was not told by the testator that it was his will.
    "We have then these facts : First, that the will was signed by two subscribing witnesses, one of whom was not told that it was a will; second, that it was shown to three witnesses, two of whom knew from the testator that it was his will, and both of whom were trustees under it, one being also a trustee for a charity, a legatee under the will. The law requires that there shall be two disinterested witnesses, who shall attest the will one calendar month before the death of the testator. It was argued with great force that Kendig and "Wilmerton, being trustees under the will, and having certain rights thereunder, and the act speaking of deeds as well as wills, and as in a deed the parties thereto could not be witnesses, these gentlemen could not be witnesses to the will. However this might be in a deed, which is an agreement between the parties, it does not apply in the case of a will. In a deed it might very truly be said that neither of the parties can be a witness to it; but a will is not an agreement between the parties, being the act of one alone, and certainly, irrespective of any other person, he has a right to call anyone whom he pleases to be his witness.
    It was also argued that the word “ attest ” in the act was synonymous with the word “ subscribe ; ” that attesting witnesses spoken of there meant subscribing witnesses, and the auditing judge is free to confess that if the question were new, the argument would have great weight with him. But it has not been so held by the Supreme Court, and is, therefore, not the true interpretation : Irvine’s Estate, 206 Pa. 1.
    Nor is the objection that Fuigle was not told by the testator that the document which he was signing was his will, good. The fact that he did so sign it at the request of the testator as a witness to his signature which was affixed makes him a witness, the courts holding that a man may have a document witnessed without being bound to disclose its contents : Bes wick’s Estate, 13 Pa. Dist. Rep. 711; Combs’ and Hankinson’s 'Appeal, 105 Pa. 155. The attesting clause, moreover, shows that it is his will he has witnessed. He is, therefore, one of the necessary witnesses, being admittedly disinterested, as required by law.
    We next have Kendig, to whom the testator showed the will signed, and in whose presence he drew the codicil. He was not a subscribing witness, but clearly, under all the decisions, is an attesting one, for, if the matter of subscription be left out, how could one be made more of a witness than by being shown the signed will, and it being discussed with him by the testator ?
    The third witness, Wilmerton, saw the will, discussed it with the testator and subscribed to it. Having, therefore, one witness undoubtedly competent, we have then to take up the question — are the others rendered incompetent by reason of interest ? As to Kendig. He is, first, an executor under the will; second, a trustee under the will for the charities ; third, he has a power of voting a part of the stock of the wheel works, with the further right to purchase some at a price to be fixed by appraisers, and, fourth, he is the attorney for the estate.
    As to Wilmerton, he is, first, executor under the will; second, a trustee under the will for the charities; third, he has a power of voting a part of the stock of the wheel works, with the privilege to purchase some at a price to be fixed by appraisers, and, fourth, he is a trustee of the Kensington Methodist Episcopal church, one of the legatees.
    . The question as to their being interested by virtue of the position of executor can be dismissed at once, for that such an office does not disqualify is decided in the case of Jordan’s Estate, 161 Pa. 393, and the reasoning in that case will apply with equal force to the objection that they are trustees under the will. The fact that they may ultimately get some advantage is not such an interest as will disqualify.
    The fact of their having, in addition to the ordinary compensation of trustees, the power to vote the stock, and also the power to take it at an appraised value, is, in the mind of the auditing judge, no reason why they can be called interested as regards these legacies and devises. One who ■ is interested in a will and not in the charities cannot, in the view of the auditing judge, be held to be an interested witness, their interests being a personal one and not connected with the legacies to the parties. A devisee under a will can be a competent witness to it: Patterson v. Shrader, 12 W. N. C. 429.
    The witness, Kendig, being, therefore, only interested as an officer or employee to carry out the terms of the will, is not such an interested witness as will disqualify him. 'Wilmex’ton, however, stands in a somewhat different light from Kendig in that he is not only a trustee under the will, but also a trustee or officer of the charities. Now, the act prohibiting proof of such a will by those whose interest it was to have such a gift made, it seems to the auditing judge, on principle, that he in whose custody the funds of the church are to be placed comes squarely under the prohibition of the act. A gift to charity is not to an individual, but to a corporation or a number of people. The evil the act sought to eradicate was the proof of wills by those representing such corporations or bodies, or acting for them in their dealings as to testators or settlors. If we allow those who act for the charities in administering their funds, who, if anybody, were interested in their accumulation, to actas witnesses to a will, the word “ disinterested ” has no meaning. An enxployee may have no interest, because he is not one who acts for the parties. A board or a church council has been decided to have no interest; but it would seem that those who gather its assets conserve and expend them, and upon whom the financial existence of the church depends, are such persons who, under the terms of the act, are interested. But the auditing judge is bound by the decisions, which, upon this point it seems to him, are clear, that the interest to disqualify must be a pecuniary one. There is no testimony here that this witness was to get any pecuniary benefit from his connection with the church, and that is what has been held to be the only interest which disqualifies: Evans’ Estate, 12 Pa. Dist. Rep. 694; Combs’ and Hankinson’s Appeal, 105 Pa. 155 ; Jordan’s Estate, 161 Pa.’ 393; Davies v. Morris, 17 Pa. 205 ; Shortz v.-Unangst, 3 ¥. & 8. 45.

      May 11, 1908 :
    None of the witnesses being, in the opinion of the auditing judge, interested witnesses, such as are contemplated by the act, the objection is overruled, and the gifts to the charities are held valid.
    The court in an opinion by Lamorelle, J., dismissed the exceptions.

      Error assigned was in dismissing the exceptions.

      James Gay Gordon, with him Charles H. Hasserb and Sand-berg & Heymann, for appellants.

      John G. Johnson, with him W. II. G. Gould, WilUam Ii. Murphy and Samuel H. Kirkpatrick, for appellees.
   Opinion by

Mr: Justice Elkin,

The question to be determined on this appeal is whether certain bequests to charitable and religious uses contained in the last will and testament of the decedent are valid under section 11 of the Act of April 26, 1855, P. L. 328. The will was prepared and executed more than one calendar month before the decease of the testator, and the only point pressed in the court below and raised here is that it was not attested by two credible, and at the time, disinterested witnesses as required by the act. There are two subscribing witnesses to the will, and if they are disinterested, the bequest to charitable and religious uses must stand, if not they must fall. The whole case turns on the point what constitutes such an interest as will disqualify an attesting witness. It was held in a recent case that the attesting witnesses required by the act of 1855 must be subscribing witnesses: Paxson’s Estate, ante, p. 98. It was decided in Morgan’s Estate, 219 Pa. 355, that where a subscribing witness knows that he is signing a testamentary paper, sees the testator sign it, and is asked by the testator or by the other witness in testator’s presence to sign as a witness, it is not necessary that he should hear it read or know its contents. Under the rule of Paxson’s Estate, supra, the only witnesses to be considered in the present case are Wilmerton and Fuigle, who' attested the will by subscribing their names as witnesses to its execution. As to the subscribing witness Fuigle, the contention that he is not an-attesting witness within the meaning of the act because he did not see the testator sign his name to the will and was not. made familiar with its contents cannot prevail under the au-. thority of Morgan’s Estate' above cited, To the same effect is Combs’ and Flanldnson’s Appeal, 105 Pa. 155, wherein Mr. Justice Trunkey, who delivered the opinion of the court, said : “ Hence if witnesses were present at' that time'of the'execution and saw the testator sign the will, and they subscribed it in his presence, it is unnecessary that they should have known the contents or that the testator should have declared to them that it was his will.” It is not indispensable that the witness should see the testator sign the will. The testator may, after the will has been prepared, affix his name thereto and subsequently acknowledge his signature in the presence of a subscribing witness : Irvine’s Estate, 206 Pa. 1. This is what was done with the witness Fuigle, who went into the office where the testator was seated at a desk, with the will already signed by him in his hand, the name of the testator being in the plain view of the witness who was requested to sign his name below that of the other subscribing witness, which he did, after having been told by the other witness out in the shop that the testator desired him to be a witness to his will. It was not necessary that he should have affirmative knowledge of the contents of the will,' or of the devises, or bequests,- or of the testamentary disposition made of the property by the testator in order to qualify him to act as a witness to its execution. We, therefore, hold that Fuigle was a credible and at the time of the execution of the will, a disinterested witness.

The act of 1855 is a remedial statute, and should be construed so as to give effect to -the purpose for which it was enacted. While charities may be said to be favorites' of the law, and Avhen in times like the present vast wealth is accumulated in the hands of individuals, it is not only desirable, but highly commendable, for persons possessed of large estates to set apart portions thereof for religious and charitable uses, yet the law discourages such gifts at or near the time of impending deaths Avhen the mental faculties are impaired, the will power broken and the vital forces Aveakened, because; under such circumstances, the importunities of designing persons or the terrors of final dissolution, may induce dis-positions of property contrary to natural justice, and without .regard to the ties of kinship, which, under normal conditions, would be operative on the mind of the testator. A man may do what he will with his own. He may give all he has to his relatives and friends, or he may give it to religious and charitable uses if, he so desires, but when he leaves the channels through which natural benefactions flow to extend aid to those objects or institutions intended to improve the morals and better the conditions of the general public, the law says to him such intention must be manifested by a deed or will, executed at such a time and in such a manner as to make it reasonably certain that the thing done was the free will act of the donor, and was not the result of undue solicitation on the part of interested persons. Hence the requirement that the deed or will be attested by two credible, and at the time disinterested witnesses. With the policy of the law involved in this legislation we have nothing to do, but as to the act1 itself, clearly within the power of the legislature to pass, it is the duty of the court to enforce its requirements so as to effectuate the purpose for which it was enacted. It must, therefore, be determined whether Wilmerton, who attested the will as a subscribing witness, had such an interest as to disqualify him within the meaning of the act. He was one of the executors of the will; he was a trustee and officer in a church to which part of the income and ultimately a portion of the corpus of the trust estate was directed to go ; he had an option to purchase certain shares of stock which were a part of the trust for religious and charitable uses, at a price to be agreed upon by three disinterested persons, to be selected in a particular manner ; he was one of two trustees to whom the stock of the Kessler Wagon Works Company was given in trust to vote at corporate elections, and whose duties required that dividends received be paid by them to the charities named and in the proportions fixed in the will; he was also a stockholder and director in the wagon company, as well as an officer and employee, and had whatever benefit accrued to him as a stockholder and officer in that company by reason of having the power to vote the stock so held in trust by him ; he was also entitled to his commissions not only as executor but as trustee. Did these things create such an interest as to disqualify him as a witness to the will ? It must be conceded that there is some confusion growing out of our own cases on the subject, and it must be accepted as finally settled that the nomination by a testator of a person to act as an executor does not in itself constitute such an interest as to disqualify the person so nominated to act as a witness. This is the doctrine of Snyder v. Bull, 17 Pa. 51; Combs’ and Hankinson’s Appeal, 105 Pa. 155, and Jordan’s Estate, 161 Pa. 393. We recognize these cases as authority for the exact question decided therein, that is to say, an executor may be an attesting witness to a will making bequests to religious and charitable uses. Snyder v. Bull, decided in 1851, had no reference to the act of 1855. The matter for consideration in that case was the proper proof of a will under the act of 1833, and all that was said by Mr. Justice Gibson had reference to the law as it then stood. The test applied was the qualification of witnesses generally in legal proceedings, but this test can scarcely be held to apply to the act of 1855, which had not been passed at that time, and which was intended to accomplish a very different purpose. It is true that in Combs’ and Ilankinson’s Appeal and in Jordan’s Estate the line of reasoning suggested in Snyder v. Bull was followed by the learned justices who wrote the opinions in the later cases. The rule of these cases is predicated on the theory that an interest such as would disqualify must be present, certain and vested, and not uncertain, remote or contingent. In other words, it must be what has been called a substantial or legal interest. With such a definition of interest it naturally followed that an executor, though nominated in the will, did not have a present or vested interest because he might die before the testator, or his nomination as executor, or the will itself, might be revoked. While we consider the rule of these cases to have overlooked the spirit and purpose of the act of 1855, it is authority for what was therein decided, and will be so regarded, but the doctrine will not be further extended. We agree with the suggestion of the learned judge of the court below, who delivered the opinion on the exceptions to the adjudication in the present case, in reference to the logical result of the application of this doctrine, wherein it is said : “ Carried to its logical extreme such interpretation practically nullifies the purpose of the act, at least so far as a will is concerned, for as the testator may at any time revoke a will, and as, therefore, none of its provisions may ever become effective, every witness can necessarily have no interest pecuniary or otherwise at the time of signing; and as a deed is witnessed before delivery and becomes effective only on delivery, by a parity of reasoning all witnesses to deeds are at the time disinterested.” We think the test of qualification for witnesses in judicial proceedings generally, as given by Greenleaf and other text-writers, and followed by some decisions of our courts, does not, and should not, control in arriving at a proper interpretation of the act of 1855. The words, “ disinterested witnesses,” used in this act, must be read and understood in connection with the subject-matter of the statute, the evils to be avoided, the requirements intended to safeguard the rights and property of persons approaching death, and the remedy to be provided in such cases. When so read and understood, the interest which disqualifies a witness under the act is such an interest as appears to exist at the time of the execution of the will, either by the terms of the will itself or by reason of the attesting witness being then interested in the religious or charitable institutions for which provision is made bj^ the testator, or both, or either, as the case may be. Again, from what has been hereinbefore stated and by reason of the specific requirements of the act, it seems clear that an interest in any part of the will is such as will disqualify a witness for the purpose of attestation. The act requires the execution of the deed or will to be attested by two disinterested witnesses. It will be observed that the attestation of the execution of the whole instrument is what is required by the statute. The purpose of the act was to place the settlor, or the testator, at the time of the execution of the instrument, in the presence of two disinterested witnesses, so that he would be entirely free from the importunities and solicitations of interested persons. If the attesting witness be interested as legatee or devisee under the will, or is to derive a pecuniary benefit or advantage from any part of it, or if he is interested at the time of attestation in a religious or charitable institution to be benefited thereby, he is not disinterested within the meaning of the statute. Under this view of the law, Wilmerton was disqualified to act as an attesting witness, and the bequests to religious and charitable uses must be held invalid.

Decree reversed and record remitted to the court below, in order that distribution may be made in accordance with this opinion.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    McCown’s Estate.

      Trusts and trustees — Separate use trust — Adjudication—Accounts— Res adjudicata — Practice, O. C.

    Where upon the audit of an executor’s account, the court awards a fund to a trustee for the sole and separate use of a daughter of the testator, and the daughter, although claiming that she was entitled to the gift absolutely, took no appeal from the decree, she cannot subsequently at the audit of an account of the trustee filed for the purpose of exhibiting the state of the trust, raise the same question, inasmuch as that question is res adjudicata by reason of the previous decree of the court.
    Argued March 31, 1908.
    Appeal, No. 92, Jan. T., 1908, by Eliza B. Allen, from decree of O. O. Phila. Co., Oct. T., 1885, No. 184, dismissing exceptions to adjudication in Estate of Andrew R. McCown, deceased.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      James Gay Gordon, for appellant.

      Thos. Biddle Ellis, for appellees.
    The matter is res adjudicata : Lancaster v. Frescoln, 192 Pa. 452 ; Amrhein v. Dye Works, 192 Pa. 253 ; Myers v. Kingston Coal Co., 126 Pa. 582; Allen v. Book Co., 201 Pa. 579 ; Bolton v. Hey, 168 Pa. 418 ; Devine’s Est., 199 Pa. 250.

      May 11, 1908:
   Opinion by

Mr. Justice Stewart,

Were this an appeal from the adjudication of a partial or final account of the executors of Andrew R. McCown, deceased, the right of the appellant to have the claim she makes, again considered, notwithstanding an adverse adjudication on a former account, would be unquestionable. An account finally confirmed and unappealed from is conclusive only of what it contains, and a decree of distribution operates only upon the fund distributed. An erroneous distribution of one fund is not conclusive in the distribution of another fund in the same estate. The cases cited by the learned counsel for appellant are all to this effect; but they go no further. It is not necessary to refer to them except to say that all are cases where the party was held not to be concluded by a former adjudication, on the ground that the fund out of which he was claiming was not the same. But this case does not fall within that class. The executors of Andrew R. McCown, deceased, filed their final account more than twenty years ago. Under the adjudication then made, April 22, 1887, the share or legacy of Mrs. Eliza B. Allen, a married daughter of the testator, here the appellant, was adjudged to have been given in trust for her sole and separate use, under the terms of the will, and was accordingly awarded to trustees to hold for purposes of the trust. Mrs. Allen at the audit claimed to have the fund awarded to herself on the ground that no separate estate was intended or created by the will, and that the gift was to her absolutely. From the adjudication adversé to her claim she never appealed, and her share passed to the trustees. So far as concerns the fund distributed under that adjudication, an end was reached to the estate of Andrew R. McCown; thereafter the fund so distributed rightfully belonged to the parties to whom the court had awarded it. The account adjudicated in the proceeding from which this appeal is taken, is not an account of anything belonging to Andrew R. McCown’s estate; it is the account of the trustees to whom was awarded the share or legacy of Mrs. Eliza B. Allen. It is not an account to be followed by distribution of an ascertained balance, but an account of trustees exhibiting the state of the trust for the information of the parties interested therein. These trustees held the fund, for the purpose of tbe trust declared, by virtue of a decree of the court, which never having been appealed from, establishes their right. The question sought to be raised is res adjudicata.

The appeal is dismissed at the costs of the appellant.


text:
    Pagnacco, Appellant, v. Faber.

      Mechanics’ liens — Waiver of right to file lien — Change of ownership— Change of contract.

    Where a contractor under a written contract waives his right to file a mechanic’s lien, but subsequently after a change of ownership of the building makes with the new owner an oral contract to finish the building, without any waiver of the right to file liens, the contractor as against the new owner, has the right to enforce a lien, although a trust company which was not a party to the proceedings had insured the completion of the building, relying upon the waiver in the original contract. In such a case the court has no jurisdiction to enforce the equity of the trust company unless the company itself intervenes as a party in the proceedings under the mechanic’s lien.
    Argued March 31, 1908.
    Appeal, No. 102, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 5,063, M. L. D., for defendant, non obstante veredicto in case of Joseph Pagnacco v. Frederick F. Faber, owner and contractor, and J. William Smith, reputed owner.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Never sed.
    Scire facias sur mechanic’s lien. _ Before Kinsey, J.
    The facts appear by the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff for $5,145.85. The court subsequently entered' judgment for defendant non obstante veredicto.

      G. Von Phul Jones, for appellant.
    Only the Land Title Company could raise the question of estoppel, and they are not parties to this procedure : Miles v. Miles, 8 W. & S. 135; Ream v. Harnish, 45 Pa. 376 ; Megargel v. Megargel, 105 Pa. 475.

      May 11, 1908:
    The Land Title Company, even if a party, could not have successfully raised an estoppel: Hill v. Epley, 31 Pa. 331; Cuttle v. Brockway, 32 Pa. 45 ; Rhawn v. Furnace Co., 201 Pa. 637.
    Plaintiff had no knowledge that he was misleading the Land Title Company.
    The only question properly raised by the pleadings and the evidence was decided in favor of plaintiff by the court below.

      Joseph A. Slattery, with him Geiger, Broolcs <& Faries, for appellees.
    Plaintiff is equitably estopped, by his conduct, from maintaining a lien.
    The contract with Faber could not waive the provision against the maintenance of liens in the contract with Nyce.
    Faber made no new contract with Pagnacco.
   Opinion by

Mr. Justice Stewart,

This was an action by scire facias sur mechanic’s lien against Frederick F. Faber, owner and contractor, and another as reputed owner. Faber defended as owner. The one issue of fact was whether Pagnacco, the claimant, had waived his right to file a lien. The original contract was with one Nyce, then the owner; and by that contract Pagnacco covenanted to complete the foundation, stone work, cellar walls, face stone work, rubble range work, porch floors and excavation and grounding required, for and in the erection and construction of the buildings, and expressly waived the right to file any lien therefor. Nyce becoming financially embarrassed after the work had progressed, was unable to complete the building operation. He withdrew therefrom and assigned his interest to Faber. At this time Pagnacco had furnished work and materials to the amount of $11,557.98, and had received in cash $7,931. Claiming that he had not received all that he was entitled to in cash, he declined to proceed further with the work. He testified that Nyce had told him of his assignment to Faber, and that he (Nyce) had nothing more to do with the operation. He further testified that he did not agree to resume work until after Faber told him that he (Faber) had become the owner, and that he would pay him. Plaintiff’s contention was that the work that was done thereafter, was completed, not under the original contract with Nyce, but under a new and wholly distinct contract with Faber, the new owner, in which there was no waiver of the right to file a lien; and this was the one question of fact submitted to the jury. The agreement with Faber was entirely oral. The jury found that the original contract with Nyce had been superseded by the contract with Faber, and that under the latter there was no waiver of the right to file a lien. A verdict was rendered for the plaintiff. Subsequently, the court entered judgment for the defendant non obstante veredicto, on the ground that inasmuch as the plaintiff under the contract with Nyce had waived his right to file a lien, and had given bond to Nyce to protect him against all such liens, which bond Nyce had assigned to the Land Title & Trust Company, on the strength of which the latter had incurred obligations prior to the purchase by Faber, the plaintiff was equitably estopped from setting up such right to file a lien, notwithstanding his contract with Faber. Whatever may be the equities of the Land Title & Trust Company, there was nothing in the case that called for their protection, or even consideration, here. The evidence shows that before the contract with Faber, for the benefit of certain mortgagees who were advancing money for the enterprise, the Land Title & Trust Company had insured the completion of the building operation ; and it is insisted that it did this relying upon the waiver of the right to file a lien in the contract with Nyce. But the evidence which shows this was admitted only that it might throw light upon the one question, as to whether or not a subsequent contract was entered into between the plaintiff and Faber, in which there was no stipulation for a waiver. In referring to this evidence the trial judge in his charge says : “ All these matters have been introduced here as testimony from which you may find, if you can, anything corroborative or contrary as you view it on one side of this case or the other.” The Land Title & Trust Company was not a party to this action; and its interests were not in the keeping of this defendant who was defending the action as owner. The company had the right, under the twenty-fourth section of the act of 1901, to intervene and assert its equities, if it chose to do so ; but these could only be asserted by itself, and not by another. It by no means follows that because plaintiff might be estopped from enforcing his lien to the prejudice of the trust company, he is estopped from enforcing it against the owner. The estoppel could extend no further than to protect the trust company from loss. The action of the court in entering judgment non obstante veredicto cannot be justified. In reversing the judgment we do so without prejudice to the right of the trust company to proceed in whatever way may be open to it to protect such equities as it may have, if any.

Judgment reversed and judgment directed on the verdict.


author: Per Curiam,

text:
    Glentworth’s Estate.

      Will — Direction to sell real estate — Distribution under the intestate law— Conversion — Intention.
    Where a testatrix possessed of real estate ex parte paterna directs her executor to sell all of her real estate, and distribute the proceeds thereof to such persons as would be entitled thereto, under the intestate laws, and in another and separate clause of her will, gives and bequeaths her personal property to such persons as would be entitled under the intestate laws, the direction to sell the real estate does not work a conversion of it into personalty so as to change the course of inheritances.
    In such a case, the direction to sell was merely for convenience of distribution, and as conversion never operates except to carry out the intention of the testator, it could not in this case alter the course of inheritance.
    Argued April 1, 1908.
    Appeal, No. 94, Jan. T., 1908, by Caleb Rubincam et al., from decree of O. C. Phila. Co., April T., 1907, No. 156, dismissing exceptions to adjudication in Estate of Annie E. Glentworth, deceased.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication of Ashman, P. J.
    Prom the adjudication it appeared that the decedent died on January 28, 1906, leaving to survive her Caleb Rubincam and William M. Thomas, cousins ex parte paterna, and Frances S. Buckingham and Andrew A. Butler, cousins ex parte materna. The portions of the will material to the questions involved are quoted in the opinion of the Supreme Court.
    May 11, 1908 :
    The auditing judge, Ashman, P. J., held that the will worked a conversion of the real estate, and awarded a portion of the proceeds of the sale of the real estate to the cousins ex parte materna. The cousins ex parte paterna filed exceptions to the adjudication.
    The court in an opinion by Anderson, J., Penrose, J., dissenting, dismissed the exceptions.

      Error assigned was in dismissing exceptions to adjudication.

      Joseph B. Townsend, of Townsend, Elliott cb Townsend, with him John J. Qheen, for appellants,
    cited : Rudy’s Est., 6 Pa. Dist. Rep. 246; Worsley’s Est., 36 W. N. C. 247; Shedden’s App., 210 Pa. 82; Yerkes v. Yerkes, 200 Pa. 419.

      O. M. Bowmcm, for appellees,
    cited: Keim’s Est., 201 Pa. 609 ; Burr v. Sim, 1 Wharton, 252; Simpson v. Kelso, 8 Watts, 247; McClure’s App., 72 Pa. 414; Eby’s App., 84 Pa. 241; Dolflein’s Est., 16 Pa. Dist. Rep. 173 ; Shedden’s Est., 210 Pa. 82; Rudy’s Est., 6 Pa. Dist. Rep. 246; Worsley’s Est., 36 W. N. C. 247; Perot’s App., 102 Pa. 235.
   Per Curiam,

The testatrix was possessed of both real and personal property, the former having come to her ex parte paterna. She knew the difference and had it in mind when she made her will, for she made a separate clause in regard to each class. For the real estate she directed that her executor should sell all my real estate .... and distribute the proceeds thereof to and among such persons and in such shares as would be entitled thereto under the intestate laws of the State of Pennsylvania, ” while for the personalty her direction was, “ Third. All of my personal property wheresoever found I give and bequeath to such persons and in such shares as would be entitled under the intestate laws of Pennsylvania, and I request my executor to distribute the same as rapidly as possible.”

It is manifest that the testatrix had no intention of making a common fund for a common distribution. When she directed the sale of the real estate and the distribution of the proceeds, she meant the real estate as it was to her in her lifetime, with no intent to change the course of inheritance, but the proceeds to go to those who would be entitled to inherit the land. If she had designated the devisees of the proceeds by name they would clearly have had the right to elect to take the land as land, with no standing at all for other relatives to claim. She did not name the devisees, but she designated them as a class as clearly as if by name. The direction to sell was merely for convenience of distribution, and as conversion never operates except to carry out the intention of the testator, it could not in this case alter the course of inheritance.

On the other hand, when she was disposing of her personal property, she “ gave and bequeathed ” it directly to such persons and in such shares as would be entitled under the intestate laws. It is plain that she was intentionally dealing with a different class of property and a different set of beneficiaries.

Decree reversed and distribution ordered to be made in accordance with this opinion.


author: Mr. Justice Mestrezat, Mr. Justice Elkin, Mr. Chirk Justice Mitchell,

text:
    Truitt v. Philadelphia, Appellant.

      Municipalities — Cities of the first class — Public officer — Superintendent of squares — Removal from office — Civil service law — Act of March 5, 1906, P. L. 83.
    No officer, clerk, employee or laborer in the civil service of the city government of the city of Philadelphia can be appointed, transferred, reinstated, promoted or discharged in any manner or by any means, other than those provided in the Act of March 5, 1906, P. L. 83.
    The civil service Act of March 6, 1906, P. L. 83, relating to cities of the first class is a constitutional exercise of legislative power, and officials appointing to, or removing from, office or employment are required to comply strictly with the provisions of the statute. Neither the court nor the officials in whom is lodged the power of appointment and removal can have any concern with the policy of law, or the reasons for its enactment. These are questions which are solely for legislative consideration.
    The purpose of the legislature in passing the act was, as its title shows, “to regulate and improve the civil service of the cities” to which it applies, and thereby obtain for the city faithful and efficient employees and protect them from removal for religious or political reasons.
    The only ground which authorizes a removal from the service is a “just cause,” and before the employee can be deprived of his position that must be made to appear. The cause sufficient to warrant a removal must be personal to the employee and such as to render him unfit for the position which he occupies.
    Before the removing officer can exercise his authority to dismiss the employee from the service, he must state specifically in writing the cause or causes of the unfitness or incompetency of the employee to perform the duties of his appointment. This is a condition precedent, imposed by the statute before the removal can be made. It is mandatory, and the failure of the officer to observe this provision will render the employee’s removal as abortive as if no cause had been assigned.
    The removing officer not only must assign his reasons in writing, for his intended action in dismissing the employee, but, before acting, he must also give to the employee an opportunity to answer the charges preferred against him. If he can satisfactorily answer the reasons assigned for his removal, and thereby show that there is no just cause for his dismissal, the removing officer is prevented by the statute from dismissing him from the service.
    A letter addressed by the director of public safety of a city of the first class to the superintendent of a square, notifying the latter of his dismissal from his position “for the betterment of the service,” is not a sufficient “written statement of the reasons,” for the dismissal within the meaning of the statute. Such a statement defeats the purpose of the act in denying to the employee an opportunity to answer his accusers, by failing to disclose the accusations against him.
    Where a petition for a mandamus and reinstatement to office avers that the plaintiff was not furnished a statement of the reasons for his dismissal and given an opportunity to answer them as required by the statute, and the answer to the petition without admitting or denying the averment in the petition avers certain causes for the removal, the petitioner in his demurrer to the answer does not admit the truth of the charges contained in the answer inasmuch as they are not facts material or relevant to the issue.
    It is not sufficient for the removing officer to dismiss an employee from the service without assigning a cause, and, when subsequently brought into court on a demand for his reinstatement, to assign the cause. The statute does not so provide, and hence the court cannot sustain such an answer by the removing officer to an alternative writ of mandamus. Until the employee has been confronted with the charge and has been afforded an opportunity to give a written answer, the removing officer cannot declare that a just cause of removal exists. .

      The court will not refuse to reinstate the petitioner because such Reinstatement would be a vain thing, inasmuch as the removing officer will remove him for the causes stated in the answer. If the court should refuse reinstatement for such reason, it would assume that the removing officer would not in good faith, and as required by his official oath, make a full and fair investigation of the charges preferred against the plaintiff, and base his subsequent action in removing or in refusing to remove him solely upon the facts as disclosed by the investigation.
    Mitchell, C. J., dissents.
    Argued April 1, 1908.
    Appeal, No. 18, Jan. T., 1908, by-defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 4,709, awarding mandamus in case of Harry W. Truitt v. City of Philadelphia, John E. Rey burn, Mayor, and Henry Clay, Director of Public Safety.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for mandamus. Demurrer to answer;
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in sustaining the demurrer to the answer.

      Thomas D. Finletter, with him J. Howard Gendell, for appellants.
    The limitation upon the right of the appointing power to discharge is exceptional and in derogation of the general rule, and should be strictly construed.
    Where this limitation is a requirement of the filing of “ written reasons ” for discharge, great liberality should be allowed in the statement of “ reasons': ” Koontz v. Franklin County, 76 Pa. 154 ; Com. v. Bacon, 6 S. & R. 322; Barker v. Pittsburg, 4 Pa. 49 ; Hawkins v. Com., 76 Pa. 15 ; Philadelphia v. Fox, 64 Pa. 169; Com. v. Moir, 199 Pa. 534.
    The appointing power has always been held to include.the power of removal. Unless there is a legislative restriction, the right of the appointing power to dismiss the subordinate rests only with the pleasure of the former. The power of removal is inherent in the power to appoint: Houseman v. Com., 100 Pa. 222 ; People v. Controller, 20 Wend. 595 ; People v. Fire Commissioners, 73 N. Y. 437.
    It cannot be doubted that the causes stated in the answer filed amply justify a discharge. It is established by the authorities that a statement of “ reasons for discharge ” is incontestable by the plaintiff, and that his discharge will be complete on the filing of such a statement of reasons among the records of the civil service commission : People v. Brady, 166 N. Y. 44 (59 N. E. Repr. 701).
    May 11, 1908:
    In the letter of October 14 the director informed Truitt that he was discharged “ for the betterment of the service.” In this statement practically the words of the title of the. civil service act were used.

      Wm. Clarke Mason, with him Franklin S. Edmonds, for appellee.
    The office of superintendent of squares in the city of Philadelphia was subject to legislative regulation, and, therefore, the plaintiff was not liable to dismissal at the will of the director of public safety, but only according to the method provided by act of assembly : Com. v. Black, 201 Pa. 433 ; Com. v. Stokley, 20 W. N. C. 315 ; Saul v. Scranton, 9 Pa. Dist. Rep. 156.
    The method of dismissal provided by act of assembty must be strictly followed: Dillon on Municipal Corporations, sec. 245; Com. v. Black, 201 Pa. 433.
    The dismissal of a superintendent of squares “ for the betterment of the service ” is illegal and void, as such phrase is not a “ statement of the reasons for such action ” within sec. 20, act of March 5, 1906 : Andrews v. King, 77 Me. 224 ; Lindblom v. Civil Service Commission, 102 Ill. App. 14; State v. Grant, 81 Pac. Repr. 795 ; Joyce v. Chicago, 216 Ill. 466 ; State v. Thompson, 97 N. W. Repr. 887; In re Carter, 141 Cal. 316 (74 Pac. Repr. 997); Com. v. Sutherland, 3 S. & R. 145 ; Bon Homme County v. McLouth (S. D.), 104 N. W. Repr. 256; Collier on Civil Service Law, p. 197; People v. Starks, 33 Hun, 384; Butler v. White, 83 Fed. Repr. 578.
    The removal of the plaintiff having been illegal, he is entitled to be restored to all the rights and privileges of his office : Com. v. Black, 201 Pa. 433.
   Opinion by

Mr. Justice Mestrezat,

In August, 1905, Harry W. Truitt, the plaintiff, passed a successful examination before the civil service commission of the city of Philadelphia for appointment to the position of superintendent of squares in the city, and on the eighteenth of that month was placed on the eligible list for appointment to the position. In October of the same year he was appointed to the office of superintendent of squares by the director of the department of public safety, and was assigned to duty as superintendent of Rittenhouse square. He continued to perform the duties of this position until October 14, 1907, when he was notified by letter from Henry Clay, director of public safety, of his “ dismissal from the position of superintendent of square, bureau of city property, for the betterment of the service, the same to date from Thursday, October 17, 1907.” Since the date of this notice the mayor and the director of public safety have refused to recognize the plaintiff as a superintendent of squares, and he has been denied the right to perform the duties of such position.

On November 18, 1907, Truitt presented his petition to the court below, setting forth the above facts and praying for a writ of alternative mandamus to compel the mayor and director of public safety to place his name on the roll of superintendent of squares and to recognize him as a superintendent of squares of the city, alleging as reasons therefor that “ he has been unlawfully and illegally refused the right to act as superintendent aforesaid by said Henry Clay, director aforesaid,” and because the mayor and director “ have failed and refused to recognize and cause to be recognized your petitioner as superintendent of squares aforesaid.” To this writ the defendants made return and filed an answer. The answer, like the petition, contains many irrelevant and immaterial averments which need not be noticed in disposing of the case. The answer concedes the appointment and service of the plaintiff as superintendent of squares in the city as alleged in the petition. It denies, however, that he performed his duties according to law and the rules of the department of public safety, and avers certain causes which are alleged to be sufficient to justify the plaintiff’s removal from office. It further avers that the notice given by Director Clay to the plaintiff was in full compliance with the act of assembly regulating the dismissal of employees from the civil service; and “ that the said letter contains and is a written statement of the reasons for the dismissal of the said petitioner from the said office.” The answer further avers that if the court should be of opinion that the reasons for dismissal were not sufficiently explicit, the action upon the petition would be without practical effect, inasmuch as ample causes for the dismissal of the plaintiff from the office and reasons therefor exist. The learned court below awarded a writ of peremptory mandamus, President Judge Willson filing a clear and convincing opinion which amply vindicates the correctness of his conclusion.

The legislature of Pennsylvania passed an Ac.t approved March 5, 1906, P. L. 83, entitled: “ An act to regulate and improve the civil service of the cities of the first class in the commonwealth of Pennsylvania, making violation of its provisions to be a misdemeanor, and providing penalties for violations thereof.” The act is very comprehensive and contains ample provisions regulating the subject indicated in its title. It provides that appointments to and promotions in the civil service of cities of the first class shall only be made according to qualifications and fitness, to be ascertained by examination, which so far as practicable shall be competitive. No officer, clerk, employee or laborer in the civil service of the city government can be appointed, transferred, reinstated, promoted, or discharged in any manner or by any means other than those provided in the act. Penalties are prescribed for violations of its provisions. The act was manifestly intended to make full provision for the appointment and discharge of officers and employees in the civil service of the city, and to definitely prescribe the manner of exercising such authority, as well as to protect faithful and efficient appointees against removal for a political, religious or other insufficient cause. Prior to the present act dismissals from the civil service of Philadelphia were regulated by the Act of June 1, 1885, P. L. 37, which provided, inter alia, that the directors or chief officers of departments may by written order giving their reasons therefor, remove or suspend subordinate officers and clerks, provided the same is not done for political reasons; ” and that “ no policeman or fireman shall be dismissed. . . . except by the decision of a court and a trial upon charges with plain specifications and the right of the accused to be present with sworn witnesses.”

The restriction or limitation placed upon the removal or dismissal of an officer or employee from the civil service of the city is contained in section 20 of the act of 1906, which is as follows: “No officer, clerk, or employee in the competitive class or in the noncompetitive class of the classified civil service of any city of the first class, who shall have been appointed under the provisions of this act, or of the rules made pursuant thereto, shall be removed, discharged, or reduced in pay or position except for just cause, which shall not be religious or political. Further, no such officer, clerk or employee, shall be removed, discharged or reduced, except as provided in section 8 of this act, until he shall have been furnished with a written statement of the reasons for such action, and been allowed to give the removing officer such written answer as the person sought to be removed may desire.” The same section provides — manifestly to show the public that the dismissal has been for a sufficient cause — that “ in every case of such removal or reduction a copy of the statement of reasons therefor, and of the written answer thereto, shall be furnished to the Civil Service Commission, and entered upon its public records.” By section 27 of the act it is provided that all officers or employees in the service of the city on March 1, 1906, shall be construed to have been appointed under its provisions, and shall hold their offices in accordance therewith.

The only question for consideration raised by the pleadings in this case is whether Director Clay complied with the act of 1906 in dismissing the plaintiff from his position of superintendent of squares. The legislature had the power to pass the act in question and legislate upon the subject: Commonwealth v. Black, 201 Pa. 433, and hence officials appointing to or removing from office or employment are required to comply strictly with the provisions of the statute.

It may be suggested that neither the court nor the officials in whom is lodged the power of appointment and removal can have any concern with the policy of the law or the reasons for its enactment. Those are questions which are solely for legislative consideration, and neither the court nor the officials can be permitted to question or deny the authority of the legislature to pass upon and determine them. The duty of the officer in appointing to or dismissing from the service of the city is to comply with the statute and in good faith yield obedience to its provisions, so that the intention of the legislature may be fully carried out. The purpose of the legislature in passing the act ivas, as its title shows, “ to regulate and improve the civil service of the cities ” to which it applies, and thereby obtain for the city faithful and efficient employees and protect them from removal for religious or political reasons. Legislation of a similar character has been enacted by the federal congress and by the legislatures of nearly every state of the union. It unquestionably has the approval of the best thought of the present day, and we have recently so declared in Commonwealth v. Black, 201 Pa. 433. In that case we said (p. 433): “ It is undeniable that much of the best recent thought devoted to municipal government tends to the elimination of politics and personal influences from consideration and the establishment as far as practicable of a tenure of good behavior for all subordinate and non-political positions.”

Recurring now to the question to be decided in this case, it is to be observed that the act of 1906 provides that an officer or employee of the city shall not be discharged “except for just cause, which shall not be religious or political.” Here is an explicit denial by the legislature of the right to remove any employee of the city except for the cause named in the act. So long as the employee is without that exception, he is immune from dismissal by any superior officer. The only ground which authorizes a removal from the service is a “ just cause,” and before the employee can be deprived of his position that must be made to appear. The whim or caprice of the superior officer are entirely inadequate to justify his action in dismissing an employee from the city’s service. The cause sufficient to warrant a removal must be personal to the employee and .such as to render him unfit for the position which he occupies : City of Rockford v. Compton, 116 Ill. App. 406. The statute denies specifically the right to remove for any religious or political cause. The cause must be substantial and one which affects the efficiency of the employee and the good of the service. Until such “just cause ” has been made to appear, the act of 1906 is a complete barrier to the dismissal of the employee.

The statute not only requires that a just cause shall exist to justify the removal of an employee, but it provides the way in which the incompetent or inefficient employee shall be discharged. No officer or employee shall be removed, says the act, “ until he shall have been furnished with a written statement of the reasons for such action, and been allowed to give the removing officer such written answer as the person sought to be removed may desire.” This language is explicit and not to be misunderstood. It is an emphatic declaration by the legislature prohibiting the removal of any employee except as authorized by its provisions. Before the removing officer exercises his authority to dismiss the employee, the former must give to the latter a written statement of the reasons for his intended action. In other words, the officer must state specifically in writing the cause or causes of the unfitness or incompetency of the employee to perform the duties of his appointment. He must designate wherein the employee is incompetent to perform the service or is unfaithful in the performance of his duties. This is a condition precedent, imposed by the statute, before the removing officer can dismiss the employee from the service. It is mandatory and the failure of the officer to observe this provision of the act will render the employee’s removal as abortive as if no cause had been assigned. The purpose of the statute in requiring a written statement of the reasons for dismissing the employee is that he may have an opportunity to meet and refute the allegations of incompetency, unfitness or unfaithfulness alleged against him, and thereby prevent his removal. Not only must the removing officer assign his reasons in writing for his intended action in dismissing the employee, but, before acting, he must also give to the employee an opportunity to answer the charges preferred against him. If he can satisfactorily answer the reasons assigned for his removal and thereby show that there is no just cause for his dismissal from the city’s service, the removing officer is prevented by the statute from dismissing him from the service. If the employee in his answer to the specifications of incompetency or unfitness fail to meet and refute the charges contained in the written statement furnished him by the removing officer, there will then exist a “ just cause ” for his dismissal, and the statute authorizes the removing officer to discharge him from the city’s service. The statute, therefore, provides explicitly that an employee can only be removed for just cause, and in equally plain terms regulates the manner in which the dismissal must be accomplished.

The dismissal of Truitt from the city’s service was, as we have seen, by the letter of Director Clay, written October 14, 1907. The only reason assigned for the director’s action was “ for the betterment of the service.” It is apparent, we think, that the reason assigned by the director was not such “ a written statement of the reasons ” for his action as the statute requires. The reason assigned is general, vague and indefinite, and wholly fails to meet the requirements of the statute. It is true, as claimed by defendants, that it is the reason that was assigned by some of the predecessors of the present incumbent in the office of director of public safety, but that is no argument in its favor or justification for its use under the civil service act of 1906. Such a reason defeats the very purpose of the act itself, which unquestionably was to protect a faithful and efficient employee from removal for a political, religious or other insufficient cause. It denies the employee an opportunity to answer his accusers by failing to disclose the accusations against him. How is he to make a “ written answer ” to the charges of unfitness or inefficiency, as required by the act, if the charges against him are not specifically set forth in the statement furnished by the removing officer? The allegation that the dismissal is for “ the betterment of the service ” is simply the declaration of the removing official, and in no sense is it a written statement of the reasons for removal within contemplation of the civil service act. In passing upon a similar reason assigned for removing certain officers under the civil service law of the federal government, Jackson, J., in Butler v. White, 83 Fed. Repr. 578, said: “ Now, it seems to me no grounds have been shown for their removal, except ‘ for the good of the public service.’ This is a reason that was employed by the officers of the government, when they desired to remove anyone that was obnoxious to them, long prior to the passage of the civil service act. It is too general, vagué and indefinite to authorize the removal of an officer under existing law. By the other terms and provisions of the rule .just referred to, he has to be confronted with the charges that are made against him, and to have full notice and an opportunity to make defense.”

The demurrer to the answer admits the truth of the facts well pleaded, but not facts immaterial or irrelevant to the issue. Whether the plaintiff was justly open to the charges made against him is not involved in this litigation, and hence was improperly averred in the defendants’ answer. Under the well-established rules of pleading he was not required to deny, and was clearly right in not denying, the truth of the charges contained in the answer. The application for the mandamus and reinstatement was based upon the averment in the petition that the plaintiff was not furnished a statement of the reasons for his dismissal and given an opportunity to answer them, as required by the act of 1906. The answer of the defendants should have admitted or denied the averment in the petition, and the demurrer admitted only such facts in the answer as were material and relevant to that issue.

It is contended by the defendants that a peremptory mandamus should not be awarded to reinstate the plaintiff in his position, because the answer to the alternative writ discloses a sufficient cause for the plaintiff’s dismissal from the service, and, further, that his reinstatement would have no practical effect, inasmuch as the director could immediately dismiss him. This position is wholly untenable. The plaintiff is asserting a right conferred upon him by an act of the legislature. He claims, and the pleadings disclose, that he was dismissed from the service of the city in direct violation of the civil service act of 1906. His application to the court for a mandamus requiring his reinstatement is based upon the ground that he was unlawfully dismissed from the service, and, therefore, he should be reinstated. It is not an answer to the alternative writ for the defendants to aver that the plaintiff was guilty of conduct which would warrant his removal. The statute provides that the cause shall be properly assigned and furnished him by the removing officer before his removal, and that he be given an opportunity to answer. It is not sufficient for the removing officer to dismiss an employee from the service without assigning a cause, and, when subsequently brought into court on a demand for his reinstatement, to assign the cause. The statute does not so provide, and hence the court cannot sustain such an answer by the removing officer to an alternative writ of mandamus. Until the employee has been confronted with the charge and has been afforded an opportunity to give a written answer, the removing officer cannot declare that a just cause of removal exists.

The other reason assigned by the defendants, that it will be a vain thing for the court to reinstate the plaintiff because sufficient reasons for his removal exist and the director will remove him, is also without merit. To sustain that proposition we must hold that Director Clay and his superior officer, the mayor, will discharge the plaintiff regardless of the sufficiency of his answer and explanation of the charges preferred against him. This would be a palpable violation of the statute and of the oath of office of both officers. We will not, therefore, assume for one moment that those officials, when judicially advised of the proper interpretation of the civil service act, will not obey its command. When Director Clay furnishes the plaintiff a written statement of the reasons for the proposed removal, the latter will have an opportunity to reply. It will then be the duty of the director to make an investigation and determine whether the accusations against the officer or employee are well founded or groundless. He cannot, as a matter of course, discharge him. He must act upon the facts as they are made to appear to him, and if the plaintiff meets and refutes the charges against him, the duty of the director is to retain the plaintiff in the service of the city. If the charges are shown to be true, it is then equally the duty of the director to remove the plaintiff and protect the city against an inefficient or unfaithful employee. The argument, therefore, of the defendants’ counsel that the reinstatement of the plaintiff will be vain because the director will at once discharge him reflects upon the director as an officer, and if we were to so hold we would be assuming that the director would not in good faith, and as required by his official oath, make a full and fair investigation of the charges preferred against the plaintiff and base his subsequent action in removing, or refusing to remove him, solely upon the facts as disclosed by the investigation. The statute imposes this duty upon the director, and we cannot assume that it will not in good faith be performed.

We are of opinion that the plaintiff was illegally removed from his position as superintendent of squares in the city of Philadelphia, and that the court below was right in issuing a peremptory writ of mandamus requiring the defendants to reinstate him in the position from -which he was removed.

The judgment is affirmed

Mr. Justice Elkin,

concurring:

In the consideration of this case, it should not be overlooked, that the purpose of all civil service laws is to promote efficiency in the public service, and the test of the merit of the system must be increased efficiency in the discharge of public duties. Competency and faithfulness are essential to good service, and those who claim the protection of the civil service act, as well as those Avho enforce its provisions, are equally bound by the spirit and purpose of its enactment. It will not do to hold an official at the head of a department, clothed with the power to appoint and dismiss employees, to the strictest compliance with every requirement of the act, and at the same time permit the employee to exercise the widest latitude in the'performance of his duties. Good faith and honest purpose on the part of an officer intrusted with the supervision of any branch of government are always presumed until the contrary is made to appear. In the administration of civil service laws something must be left to the sound discretion of those authorized to enforce the same. Every subordinate should be respectful and faithful to his superior officer and should manifest a willingness to perform his duties as directed. It is the duty of the head of a department to direct the manner in which the work of his department shall be done, and ability and willingness on the part of the subordinate to do the work as directed are essential requirements of efficient service. Nothing could be more demoralizing to the public service than insubordination and disloyal indifference by the subordinate in the discharge of duties directed by the superior officer. In the construction and enforcement of civil service statutes these essential requirements of any efficient system of government should have due consideration. Civil service laws may, and in many instances no doubt do, prevent abuses in the employment and dismissal of public officials, but after all the efficiency of the service depends upon the integrity, faithfulness and capacity of the individuals who perform the service and these are personal qualities which cannot be given anyone by legislation, nor can any act of assembly make a man efficient if nature or personal habits have otherwise decreed. And it does not necessarily follow that educational qualifications are always the best test of efficiency in the discharge of public duties. While scholastic attainments are always desirable, manly attributes and personál qualities frequently count for much more. Hence, it appears to me, that the head of a department, having the power of dismissal, should be permitted in assigning a just cause for removal under the twentieth section of the act of 1906, under which this proceeding was instituted, to take into consideration the moral character, the personal qualifications, the fitness, and all other qualities of the employee which affect the efficient and proper and decent discharge of his duties. It is true, the act in question does'provide that no officer, clerk or employee shall be removed, discharged or reduced until he shall have been furnished with a written statement of the reasons for such action and shall have been allowed to give the removing officer such written answer as he may desire to make. I agree that the reason assigned in the present case was too general and indefinite to meet the requirements of the statute and therefore concur in the conclusion reached by the court below and here. While there is much force in the suggestion that the error.in this case is only technical and that the situation is not of the character to demand intervention by the strong arm of the law in the nature of a writ of mandamus, on the whole, however, it seems to me, the integrity of the statute and the rights of the parties, will be better preserved and protected by insisting upon a strict compliance with the initial step taken in a case of removal, to wit: a written statement containing the reasons assigned for such action. The record discloses that the only error committed by the removing officer in the case at bar -was failure to specify in his written statement the real cause or causes wffiich actuated him in making the removal. When this is done, as we have no doubt it will be if the facts subsequently set up are true, a just cause of removal will be shown to exist, and it would not only be the right of the director to remove, but it would be his duty to do so. There is nothing in the record to show that the director did not act in the utmost good faith or that the real facts in the case did not justify a removal. Following a precedent in his department he assigned as a reason for dismissal “ the betterment of the service, ” which we all agree is not sufficient under the requirements of the act of 1906, and for this reason the judgment is affirmed.

Mr. Chirk Justice Mitchell,

dissenting :

I agree entirely in the view of the learned judge below and this court that the removal of the relator failing to comply with the statute was not valid. But I do not see that under the admitted facts the court is required to reinstate him in office. The reason assigned for removal as appears in the opinion of the court was insufficient, but the actual causes as they are set forth in the answer of the director, are ample.

When these causes were stated in the director’s answer they might have been denied, and naturally would have been if they were false. But they were demurred to, and thereby confessed to be true. A demurrer of course admits only facts that are well pleaded, but the rules of pleading cannot be strictly applied to anomalous and exceptional proceedings like those under the statute in question. The natural thing for a man to do when charges are made which are not true is to deny them promptly. But this relator made no such denial for a month and then, the contest having begun, and having put himself in the hands of counsel be was allowed to make a legal confession that the charges were true. It can hardly be assumed that able counsel would have advised this course unless informed by their client that a denial could not be made or if made would not bear investigation.

It thus appears that if reinstated the relator will be immediately liable to removal again for conclusive reasons. To require reinstatement under such circumstances is a vain and useless thing which the law compels no man to do. “ While the propriety of the writ as a remedy for the wrongful amotion of a municipal officer is clearly established, the relief will be withheld when it is either admitted by the party or is apparent from the return that if restored to his franchise he is liable to be again immediately removed for the same cause: ” High on Extraordinary Remedies, sec. 410.

As it is apparent in this case that the removal of the relator though irregular in method was right in substance, I would refuse a reinstatement.


text:
    Kocher, Appellant, v. Delaware, Lackawanna & Western Railroad Company.

      Negligence — Master and servant — Defective appliances — Question for jury — Evidence.
    In an action by an employee against his employer to recover damages for personal injuries sustained by the plaintiff while at work, where the defendant claims that the accident was due to the breaking of one appliance of the dangerous condition of which the plaintiff had notice, while the plaintiff claims that it was due to the breaking of another and distinct appliance, and the evidence is conflicting as to the breaking of which of the appliances caused the accident, it is reversible error for the court to give binding instructions for the defendant on the ground that the plaintiff was guilty of contributory negligence in continuing his work after he knew of the condition of the defective appliance alleged by the defendant to have been the cause of the accident.
    Argued April 13, 1908.
    Appeal, No. 160, Jan. T., 1907, by plaintiff, from judgment of C. P. Luzerne Co., Eeb. T., 1905, No. 229, on verdict for defendant in case of Michael J. Kocher v. Delaware, Lackawanna & Western Railroad Company.
    Before Mitchell, C. J., Fell, Mestkezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Wheaton, J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    There are other elements in the case which it will not be necessary for me at this time to go into, but I feel bound to declare, after the examination of the law and the testimony which I have made on the plaintiff’s side of this case, that under the evidence the plaintiff is guilty of such manifest contributory negligence in remaining where he was in the face of the imminent danger which he knew was threatening him as to prevent him from recovering in this case. .
    May 11, 1908:
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was above instruction, quoting it.

      Rush Treseott, with him T. R. Martim, and L. A. Dymond, for appellant.

      A. II. MeClintoeh, with him Arthiur Hillman and JDamiel R. Reese, for appellee.
   Opinion by

Mr. Justice Stewart,

It is only necessary to refer to such facts in the case as are pertinent to the particular ruling of the court here assigned us error. Plaintiff was engaged along with other workmen in taking down what is known as a head-house, a structure built over a mine shaft. To accomplish this work a gin-pole was employed, by means of which, with the necessary ropes and pulleys, the material of the structure, as it was separated from the building, was lowered to the ground. This pole was about sixty feet in length, and was supported by four guy ropes attached to the top and securely fastened at the other ends. The foot of the pole rested on timbers placed at a considerable elevation, and, as plaintiff was the pole runner, his place was on these timbers, or platform, at the foot of the pole. While a load of material from the head-house was being lowered, and when within a few feet of the ground, the appliance carrying the load from some cause gave way. The witnesses for the plaintiff attributed the mishap to the breaking of the pole; those for the defendant to the breaking of the hook at the top of the pole, by which one of the guy ropes, bearing in this instance the strain of the load, was attached to the pole. The former ascribed the breaking of the pole to its insufficiency because of decay in certain parts ; the latter to the circumstance that in falling, after becoming detached from the guy. it struck against what is called a cap, and thus broke. The plaintiff was not struck by the pole; his injuries were received by being thrown from the platform on which he stood by certain ropes in which he became entangled, and which must have carried with them to some extent the force of the falling pole or that of the falling load. Immediately before the accident, and while the load was being lowered, the pole was seen by the plaintiff and- other workmen to bend or buckle, and the danger of the pole breaking was spoken of between them. Both plaintiff and these workmen had seen the pole before it was put in place, and had noticed season checks in it, which made them question its sufficiency for the work. Notwithstanding what plaintiff saw as to the bending of the pole, and notwithstanding one of his fellow workmen had called to him of the danger, he continued at his place at the foot of the pole after he had ample opportunity to get away. The learned trial judge, on this state of the evidence, gave binding instructions for the defendant, on the ground that plaintiff was chargeable with contributory negligence in remaining on the platform on which the pole rested with these indications of danger present. This was error. If the contention of the defendant as to the cause of the appliance giving way was correct — and that was a question of fact exclusively for the jury — then the condition of the pole, and the plaintiff’s knowledge of its condition, did not enter into the question of his negligence, and could not be considered. These were elements in the case only in the event of a finding that the collapse of the appliance was occasioned by a defective pole. If occasioned by the breaking of the hook, defendant’s contention was that it was absolved from all liability, because such a break could not reasonably have been anticipated. If such circumstance was sufficient to excuse the defendant, it could hardly be used to convict the plaintiff. The logic that would exempt the one from liability would necessarily acquit the other of negligence. The error on the part of the court was in assuming a fact in regard to which there was conflicting evidence. ¥e are not to be understood as saying as matter of law that the plaintiff would be chargeable with contributory negligence, even if the fact were found that the breaking of the pole caused the collapse. All we decide is that so long as the cause of the collapse was undetermined by the jury, the question of plaintiff’s contributory negligence was an open one, and could not be determined by the court. The case required a submission to the jury.

The judgment is reversed and a venire facias de novo awarded.